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Manipur High Court · body

2022 DIGILAW 198 (MAN)

Gunabati Kangabam v. State of Manipur

2022-10-11

M.V.MURALIDARAN

body2022
JUDGMENT 1. W.P. (C) Nos.40 and 41 of 2021 have been filed by the petitioners to quash the impugned DPC proceedings held on 16.11.2020 for appointment on promotion to the post of Fishery Officer and to direct the respondents to review the same. 2. W.P.(C) No.151 of 2021 has been filed by the petitioner, who is the fourth respondent in W.P.(C) Nos.40 and 41 of 2021, to quash the letter dated 30.11.2020 issued by the Under Secretary to Government of Manipur and to direct the respondents to consider the representation of the petitioner dated 5.2.2021. WP(C) Nos.40 and 41 of 2021: 3. The common case of the petitioners is that the Departmental Promotion Committee [DPC] has failed to consider the petitioner in WP.(C) No.40 of 2021 under Unreserved category and the petitioner in WP(C) No.41 of 2021 under the ST quota for promotion to the post of Fishery Officer, who are having the same qualification as that of the private respondents and had left one vacant Unreserved post and four vacant post meant for ST quota without any reason instead of recommending the petitioners to the said posts under the Unreserved category and ST quota respectively. 4. Further case of the petitioners is that the DPC was held on 16.11.2020 for promotion to the post of Fishery Officer from the Fishery Inspector/Fishery Instructor/Fishery Extension Assistant against 8 total vacant post under the Recruitment Rules, 1996. Out of 8 vacant post, 4 meant for Unreserved category and the other 4 for ST quota. According to the petitioners, the DPC has failed to exercise their jurisdiction and has failed to consider the eligible candidates. Thus, the impugned DPC dated 16.11.2020 is arbitrary and violation Article 14 and 16(1) of the Constitution of India. Hence, writ petitioners have filed the writ petitions for holding a review DPC after taking into consideration all material facts. 5. The respondent State filed affidavit-in-opposition stating that the claim of the petitioners that they are eligible for promotion to the next higher post of Fishery Officer in the Fishery Department is without any legal basis. Hence, writ petitioners have filed the writ petitions for holding a review DPC after taking into consideration all material facts. 5. The respondent State filed affidavit-in-opposition stating that the claim of the petitioners that they are eligible for promotion to the next higher post of Fishery Officer in the Fishery Department is without any legal basis. The Manipur Public Service Commission recommended the 6th respondent, who is not eligible for promotion to the post of Fishery Officer along with Dineshwar Singh [petitioner in WP No.151 of 2021] and Rameshwor Singh for promotion to the post of Fishery Officer and consequent to this, the Department vide letter dated 30.11.2020 requested the MPSC to review the said DPC held on 16.11.2020 at an early date as no proposal was sent to the MPSC in respect of the 6th respondent. The MPSC also informed that no record of ACRs, Vigilance Clearance etc. with respect to the 6th respondent which are important criteria for consideration of promotion of an officer were forwarded by the Department and that no administrative approval was accorded to the recommendation of the 6th respondent by the MPSC. 6. The respondent MPSC filed affidavit-in-opposition stating that the DPC meeting held on 16.11.2020 followed the relevant rules of Fishery Officer in the Fishery Department and the MPSC is not at fault in convening the DPC as the same was held on the basis of the proposal submitted by the Administrative Department and the available records with the MPSC as normally done in other DPCs as well. The Administrative Department on recommending the eligible officers had clearly kept into consideration the final seniority list as well as the provision at column 11 of the relevant Recruitment Rules for Fishery Officer in the Directorate of Fishery, Government of Manipur vide notification dated 18.11.1996. 7. Resisting the writ petitions, the fourth respondent Dineshwar Singh filed affidavit-in-opposition stating that the writ petitions are not maintainable as the petitioners have concealed relevant material facts. While short-listing the candidates for the appointment by promotion to the post of Fishery Officer did not send relevant documents of the petitioners to the concerned authority which are necessary for the DPC proceedings for such appointment because the petitioners have failed to submit relevant documents which is a requirement as per the applicable Recruitment Rules for appointment by promotion to the post of Fishery Officer. The petitioners are not eligible candidates for such appointment by promotion. WP.No.151 of 2021: 8. The case of the petitioner Dineshwar Singh is that DPC meeting was held on 16.11.2020 to promote those eligible and qualified officers from feeder grades to the higher post of Fishery Officer and the said DPC recommended him along with two other officers. However, on 30.11.2020, the Under Secretary to Government of Manipur wrote a letter to the MPSC requesting them to review the DPC dated 16.11.2020 at an early date. In that regard, the petitioner submitted a representation on 5.2.2021 wherein the petitioner requested to withdraw or revoke the decision in his case for such review of the DPC proceedings held on 16.11.2020. According to the petitioner Dineshwar Singh, the said representation has not been considered till date. 9. The respondent State filed affidavit-in-opposition stating that in the DPC dated 16.11.2020 for recommendation of eligible officers for promotion to the post of Fishery officer, the MPSC recommended Lindali Chanu, who is not eligible, along with the petitioner and one another. Because of the recommendation of Lindali Chanu, who is not eligible and whose name was not forwarded by the Government for DPC, the MPSC has been requested by the Government vide the impugned order dated 30.11.2020 to hold a review DPC for omitting the said Lindali Chanu since promoting the said Lindali Chanu to the post of Fishery Officer would invite unnecessary litigations and set a bad precedent. It is stated that since there were eligible officers holding the feeder post of Fishery Inspector for promotion to the post of Fishery Officer, the Government had made a proposal to the MPSC to hold a DPC in this regard. However, the MPSC recommended one ineligible candidate for promotion to the post of Fishery Officer for which the Government has already requested the MPSC to review the said DPC which was held on 16.11.2020 for omitting the said ineligible candidate. 10. Assailing the impugned DPC dated 16.11.2020, Mr. However, the MPSC recommended one ineligible candidate for promotion to the post of Fishery Officer for which the Government has already requested the MPSC to review the said DPC which was held on 16.11.2020 for omitting the said ineligible candidate. 10. Assailing the impugned DPC dated 16.11.2020, Mr. K. Roshan, the learned counsel for the petitioners in WP(C) Nos.40 and 41 of 2021 submitted that on the recommendation of the DPC held on 25.10.2016 and 26.10.2016 and with the approval of the Government, the petitioners along with 21 persons, including the 6th respondent were appointed to the posts of Fishery Inspector/Fishery Instructor/Fishery Extension Assistant in order of merit in the Fishery Department and that pursuant to the approval granted by the Government, they pursued one year PG course in Inland Fisheries and Aquaculture Management from ICAR, Kolkata Centre and after completion of the course, they were issued with PG Diploma certificate by the ICAR on 28.4.2018. 11. The learned counsel further submitted that a final combined seniority list of all Fishery Inspectors/Fishery Instructors/Fishery Extension Assistants in the Department was published on 4.9.2019 and in the said combined seniority list, the petitioners' names appeared at Serial Nos.18 and 34 and the private respondents' names appeared at Serial Nos.7, 8 and 13 respectively. He submits that the educational qualification of respondents 4 and 5 are B.Sc. CEFTC Kakinada, 1 year course in PGDF&AM at CIFE, Kolkata, whereas the petitioner and the 6th respondent's educational qualification are the same i.e. M.Sc. (Zoology) with specialization in Fish and Fishery, 1 year course in PGDIF&AM at CIFE, Kolkata. 12. The learned counsel would submit that the Department of P&AR, Government of Manipur framed a Recruitment Rules, 1989 for the post of Fishery Inspector/Fishery Instructor/Fishery Extension Assistant and the next higher post from Fishery Inspector/Fishery Instructor/Fishery Extension Assistant is Fishery Officer. The Department of P&AR issued notification for Recruitment Rules for the post of Fishery Officer and the same has been called as Fishery Department, Manipur (Fishery Officer) Recruitment Rules, 1996 and as per the said Recruitment Rules, the post is 100% promotion post and the following are the eligibility criteria: 1. Fishery Inspector and Fishery Extension Assistant/Fishery Instructor possessing Diploma with 3 (three) years regular service in their respective grades. 2. Fishery Inspector and Fishery Extension Assistant/Fishery Instructor possessing Diploma with 3 (three) years regular service in their respective grades. 2. Fishery Inspector and Fishery Extension Assistant/Fishery Instructor possessing 1 (one) year certificate in the Fishery Science from a recognized Inland Fisheries obtained from a Centre recognised by CIFE with 5 (five) years regular service in their respective grade. 3. Research Assistant possessing Diploma/Post Graduate in zoology/ Chemistry with 12 (twelve) months training from CIFE, Barrackpore Unit with 3 (three) years regular service in the grade. 4. Other Fishery Inspector/Fishery Extension Assistant/Fishery Instructor who are not Science Graduate possessing Fisheries Training of not less than 9 (nine) months Course from any recognized Institute with 10 (ten) years regular service in their respective grade. 13. The learned counsel urged that the petitioners are eligible for promotion to the next higher post i.e. Fishery Officer under the first criteria, as they are in possession of 1 year Diploma with three years regular service on 1.12.2019, however, the respondent authorities have not considered their names for promotion to the post of Fishery officer. On the other hand, the similarly situated officers, namely the private respondents 4 to 6 were considered for promotion to the post of Fishery Officer, which is arbitrary and discrimination and in violation of Article 14 and 16(1)(2) of the Constitution of India. 14. The learned counsel next submitted that the respondent MPSC conducted a DPC on 16.11.2020 for promotion to the post of Fishery Officer from Fishery Inspector/Fishery Extension Assistant/Fishery Instructor on the basis of the proposal submitted by the Department and it had recommended only 3 Fishery Inspector for promotion to the post of Fishery Officer under Unreserved category leaving one Unreserved post stating that there is no eligible candidates under Unreserved category. 15. It is the submission of the learned counsel for the petitioners that the petitioners are also having the same qualification as that of the 6th respondent and that they are very much eligible for the post of Fishery Officer under Unreserved category, however, while holding the DPC dated 16.11.2020, the respondent authorities failed to exercise its jurisdiction and duty assigned to it to consider the material facts. Therefore, the act of the respondent authorities is illegal and arbitrary and hence, liable to be set aside and consequently, to direct to hold a review DPC. 16. Therefore, the act of the respondent authorities is illegal and arbitrary and hence, liable to be set aside and consequently, to direct to hold a review DPC. 16. The learned Government Advocate appearing for the respondents 1 and 2 submitted that the petitioners have enclosed only a provisional certificates which state that they have successfully attended one year PG Diploma in Inland Fisheries and Aquaculture Management during the academic year 2017-18. However, in the said provisional certificates, it has been mentioned that the petitioners have successfully completed the course and that they have failed to produce any other certificate which states that they have successfully completed the course as per the relevant Recruitment Rules for the post of Fishery Officer. As such the claim of the petitioners that they are eligible for promotion to the next higher post of Fishery Officer in the Fishery Department under the first criteria is without any legal basis. 17. Mr. RS Reisang, the learned senior counsel for the respondent MPSC submitted that the impugned DPC meeting held on 16.11.2020 followed the relevant Recruitment Rules of Fishery Officer and that the MPSC is not at fault in convening the DPC as the same was held on the basis of the proposal submitted by the Administrative Department and the available factual records with the MPSC as normally done in other DPCs as well. 18. Mrs. Ayangleima, the learned counsel for the private respondents submitted that the petitioners have produced a provisional certificate of having successfully attended one year PG Diploma in Inland Fisheries and Aquaculture Management during academic year 2017-18, however, they failed to produce the passing certificate or any other documents corroborating that they have cleared the course. Thus, the petitioners have concealed the material facts while approaching this Court. He would submit that the petitioners are not eligible candidates for appointment to the post of Fishery Officer by promotion, as they failed to establish the passing of 1 year PG Diploma in Inland Fisheries and Aquaculture Management with 3 years regular service. Therefore, no fundamental right was violated and thus, prayed for dismissal of WP (C) Nos.40 and 41 of 2021. 19. Therefore, no fundamental right was violated and thus, prayed for dismissal of WP (C) Nos.40 and 41 of 2021. 19. Coming to the challenge made in WP (C) No.151 of 2021, which was filed by the fourth respondent in WP (C) Nos.40 and 41 of 2021 is concerned, the learned counsel submitted that the petitioner Dineshwar Singh is qualified and eligible for consideration of appointment by promotion to the post of Fishery Officer from Fishery Inspector which resulted to recommend him for such promotional post and that the name of Dineshwar Singh was recommended by the DPC held on 16.11.2020 after such assessment was done as per the relevant applicable Rules. As such, if the said DPC is to be reviewed by the impugned letter dated 30.11.2020, his right will be affected for no fault of him and likely to delay the matter for issuance of such promotion order for the post of Fishery Officer. 20. On the other hand, Mr. Y. Ashang, the learned Government Advocate supporting the impugned letter dated 30.11.2020, submitted that MPSC recommended one Lindali Chanu, who is not eligible along with the petitioners in WP Nos.40 and 41 of 2021 and that because of the recommendation of the said Lindali Chanu, who is not eligible and whose name was not forwarded by the Government for DPC, the MPSC has been requested by the Government vide impugned letter dated 30.11.2020 to hold a review DPC for omitting the said Lindali Chanu since promoting of the said person to the post of Fishery Officer would invite unnecessary litigations and set a bad precedent. 21. This Court considered the rival submissions and also perused the materials available on record. 22. This Court is first inclined to deal with WP No.151 of 2021, wherein the petitioner Dineshwar Singh seeks to quash the impugned letter dated 30.11.2020 whereby the respondent authorities decided to review the DPC dated 16.11.2020. 23. It is not the case of the respondent authorities that the petitioner Dineshwar Singh is not eligible for consideration for promotion to the post of Fishery Officer and only after a thorough analyse and considering his eligibility criteria for appointment by promotion to the post of Fishery Officer, his name was recommended, which fact was narrated in the DPC dated 16.11.2020. 24. The respondent State by the impugned letter dated 30.11.2020 requested the MPSC to review the DPC dated 16.11.2020. 24. The respondent State by the impugned letter dated 30.11.2020 requested the MPSC to review the DPC dated 16.11.2020. For proper appreciation, the letter dated 30.11.2020 addressed to the MPSC is quoted hereunder: 'I am directed to invite a reference to your letter N.8-A/74/2019-MPSC (P) dated 16.11.2020 on the above subject and to say that, against the proposal for appointment of two Fishery Inspectors for promotion to the post of Fishery Officer, the name of Smt. Lairenlakpam Lindali Chanu, Fishery Inspector was also recommended for promotion to the post of Fishery Officer. Whereas, it may be mentioned that no proposal was sent to MPSC in respect of Smt. Lairenlakpam Linali Chanu, Fishery Inspector and as such there was no approval of the Administrative Department, No record of ACRs, Vigilance Clearance/Integrity Certificate etc. which are important criterias for consideration of promotion of an officer were forwarded for her. Further, the representation of Smt. Lairenlakpam Lindali Chanu, Fishery Inspector dated 13.01.2020 (copy enclosed) was disposed/certified vide Fisheries Directorate's letter No.FD/Estt/68/482 (Pt.III) dated 23.7.2020, copy of which was also endorsed to the Secretary MPSC (copy enclosed). As such, recommending Smt. Lairenlakpam Lindali Chanu, Fishery Inspector for promotion would invite unnecessary litigations and set a bad precedent. In this regard, the Administrative Department has already received legal notice from few Fishery Inspectors. Also, it may be pointed out that, the Director of Fisheries, members of the DPC being the Head of Department was also not present in the said DPC meeting to brief the Departmental Promotion Committee about the matter. In view of the above points/facts presented, it is requested to kindly review the DPC dated 16.11.2020 at an early date.' 25. Having stated in the impugned letter dated 30.11.2020 that no proposal was sent to MPSC and there was no approval of the Administrative Department in respect of Smt. Lairenlakpam Linali Chanu, Fishery Inspector, reviewing the whole DPC held on 16.11.2020 is inappropriate. It is not the case of the respondent State that the petitioner Dineshwar Singh is not eligible for consideration for appointment by promotion to the post of Fishery Officer from Fishery Inspector. If the respondent State wants to review the DPC on the particular candidate, they have to say so and request the respondent MPSC to hold review DPC in respect of the particular candidate. If the respondent State wants to review the DPC on the particular candidate, they have to say so and request the respondent MPSC to hold review DPC in respect of the particular candidate. As rightly argued by learned counsel for the petitioner Dineshwar Singh that if the whole DPC dated 16.11.2020 is to be reviewed, then his right will be affected for no fault on the part of the petitioner Dineshwar Singh and definitely it will not only cause delay for issuance of promotion order, but also irreparable loss to him. 26. On a perusal of the record, it is seen that DPC has to be held every year. The DPC dated 16.11.2020 was convened approximately after a gap of 4 years. Upon consideration of the eligibility criteria, the MPSC recommended the name of the petitioner Dineshwar Singh for promotion to the post of Fishery Officer. Therefore, at this juncture, interfering in the decision of the DPC dated 16.11.2020 and to direct the respondents to cancel and/or revoke the DPC held on 16.11.2020 in the case of the petitioner Dineshwar Singh is unreasonable, unjust and arbitrary. Therefore, finding merit in the submission made the learned counsel for the petitioner Dineshwar Singh and also on going through the materials pertaining to WP No.151 of 2021, this Court is of the view that the impugned letter dated 30.11.2020 to review the DPC held on 16.11.2020 in respect of the petitioner Dineshwar Singh is liable to the quashed. 27. Coming to the case of the petitioners in WP Nos.40 and 41 of 2021 is concerned, the petitioners contended that despite having qualified by them, their names were not recommended by the MPSC for promotion to the post of Fishery Officer. Since the proceedings of the DPC held on 16.11.2020 failed to exercise its jurisdiction and duty assigned to it to consider the material facts, the same is liable to be set aside. 28. The specific case of the petitioners in WP Nos.40 and 41 of 2021 is that they are eligible to be considered for promotion to the post of Fishery Officer, as they have fulfilled the eligibility criteria of possessing one year PG Diploma with 3 years regular service in the respective grades. 29. The requirement for direct recruitment to hold the post of Fishery Officer, as per the Fishery Inspector/Fishery Instructor/Fishery Extension Assistant Recruitment Rules, 1989, is as under: i. B.Sc. 29. The requirement for direct recruitment to hold the post of Fishery Officer, as per the Fishery Inspector/Fishery Instructor/Fishery Extension Assistant Recruitment Rules, 1989, is as under: i. B.Sc. preferably with Zoology with Fishery Training not less than 10 months duration. or ii. B.F.Sc. of a recognised University or its Equivalent. or iii. M.Sc. Zoology with special subject on Fish and Fisheries. Desirable: Knowledge of Manipuri. 30. Column 11 of the Manipur (Fishery Officer) Recruitment Rules, 1996 provides as under: 1. Fishery Inspector and Fishery Extension Assistant/Fishery Instructor possessing Diploma with 3 (three) years regular service in their respective grades. 2. Fishery Inspector and Fishery Extension Assistant/Fishery Instructor possessing 1 (one) year certificate in the Fishery Science from a recognized Inland Fisheries obtained from a Centre recognised by CIFE with 5 (five) years regular service in their respective grade. 3. Research Assistant possessing Diploma/Post Graduate in zoology/ Chemistry with 12 (twelve) months training from CIFE, Barrackpore Unit with 3 (three) years regular service in the grade. 4. Other Fishery Inspector/Fishery Extension Assistant/Fishery Instructor who are not Science Graduate possessing Fisheries Training of not less than 9 (nine) months Course from any recognized Institute with 10 (ten) years regular service in their respective grade. 31. In the light of the said Recruitment Rules, 1996, if we consider the case of the petitioners in WP(C) Nos.40 and 41 of 2021, it is the submission of the petitioners that they have fulfilled the first criteria and had completed 1 year PG Diploma course in Inland Fisheries and Aquaculture Management from ICAR, Kolkata Centre and they have also been issued with provisional certificates. 32. It would be appropriate to quote the provisional certificate of the petitioner in WP No.40 of 2021 as an illustration: 'This is to certify provisionally that Mrs. Gunabati Kangabam (PGDIF&AM-41) has successfully attended One Year Post Graduate Diploma in Inland Fisheries and Aquaculture Management during the academic year 2017- 18.' 33. On a perusal of the provisional certificates, it is clear that the petitioners have attended 1 year PG Diploma course. Mere attending the course will not mean that the petitioners have passed the said course and are validly possessing 1 year PG Diploma. The first criteria of Recruitment Rules, 1996 stipules possession of Diploma with 3 (three) years regular service in their respective grades. Mere attending the course will not mean that the petitioners have passed the said course and are validly possessing 1 year PG Diploma. The first criteria of Recruitment Rules, 1996 stipules possession of Diploma with 3 (three) years regular service in their respective grades. Successful attendance of 1 year PG Diploma is not equivalent of possessing 1 year PG Diploma. That apart, the petitioners have failed to produce the result/pass certificate of the said Diploma. In the absence of any such pass certificate/result, based on the provisional certificates issued by the Principal of the CIFE, Kolkata Centre, it cannot be said that the petitioners in WP Nos.40 and 41 of 2021 are possessing 1 year PG Diploma. Therefore, this Court is of the view that the petitioners in WP Nos.40 and 41 of 2021 have no locus standi to challenge the DPC proceedings dated 16.11.2020 and no fundamental right of them was violated. Thus, the challenge made to the impugned DPC dated 16.11.2020 is unsustainable. 34. When the writ petitions in WP Nos.40 and 41 of 2021 were taken up for admission, by the order dated 18.1.2021, this Court passed an interim order directing that no appointment should be made to the post of Fishery Officer on the basis of the recommendation made by the DPC in its meeting held on 16.11.2020 without leave of the Court. According to the parties, the said interim order is operating till date. The fourth respondent in WP(C) Nos.40 and 41 of 2021 has also filed MC (WP(C)) Nos.43 and 44 of 2021 to vacate the interim order and the same were also heard along with the writ petitions. 35. In view of the findings arrived at by this Court in the earlier paragraphs qua the challenge made to the impugned DPC dated 16.11.2020 by the petitioners in WP(C) Nos.40 and 41 of 2021 is unsustainable, the interim order of this Court dated 18.1.2021 not to appoint the post of Fishery Officer on the basis of the DPC 16.11.2020 is liable to be vacated. 36. In the result, (1) W.P.(C) Nos.40 and 41 of 2021 are dismissed. (2) The interim order dated 18.1.2021 passed in WP(C) Nos.40 and 41 of 2021 shall stands vacated and M.C (WP(C)) No.43 of 2021 in WP (C) No.40 of 2021 and M.C (WP(C)) No.44 of 2021 in WP(C) No.41 of 2021 are allowed. 36. In the result, (1) W.P.(C) Nos.40 and 41 of 2021 are dismissed. (2) The interim order dated 18.1.2021 passed in WP(C) Nos.40 and 41 of 2021 shall stands vacated and M.C (WP(C)) No.43 of 2021 in WP (C) No.40 of 2021 and M.C (WP(C)) No.44 of 2021 in WP(C) No.41 of 2021 are allowed. (3) W.P.(C) No.151 of 2021 is allowed. (4) The impugned letter dated 30.11.2020 issued by the Under Secretary, Fishery Department, Government of Manipur in respect of the petitioner Dineshwar Singh is set aside. (5) The respondents are directed to consider the representation dated 5.2.2021 of the petitioner Dineshwar Singh and pass orders considering him to enjoy the higher promotion post as per the DPC dated 16.11.2020. (6) No costs.