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2022 DIGILAW 53 (MAN)

State of Manipur v. Maiphai Hongchui

2022-04-18

LANUSUNGKUM JAMIR, SANJAY KUMAR

body2022
JUDGMENT Sanjay Kumar, CJ. - The State of Manipur and the Chief Engineer, PWD, Government of Manipur, are in appeal against the judgment & order dated 19.12.2019 passed by a learned Judge of this Court in W.P. (C) No. 253 of 2017. Thereby, the learned Judge allowed the writ petition and set aside the Special DPC proceedings held on 28.12.2016 and the consequential orders of promotion dated 16.03.2017. The learned Judge directed the authorities to convene a fresh DPC or a Review DPC and consider the cases of the writ petitioners under their quota in accordance with the reservation policy and promote them as Assistant Engineers within a time frame. The authorities were also directed to assign reasons why respondents No. 3-7 in the writ petition were promoted prior to the petitioners therein. The petitioners in the writ petition are arrayed as respondents No. 1-4 in this appeal while respondents No. 3-7 therein are now shown as respondents No. 5-9. 2. Heard Mr. N. Kumarjit, learned Advocate-General, Manipur, for the appellants; Mr. B.P. Sahu, learned senior counsel, for respondents No. 1-4; and Mr. S. Samarjeet, learned counsel, for respondents No. 5-9. 3. Respondents No. 1-4 are members of Scheduled Tribes in the State of Manipur. They hold Diplomas in Civil Engineering and were appointed as Section Officers Grade-II in the Civil Engineering Service in the PWD, Government of Manipur, in September, 1987. They were promoted as Section Officers Grade-I in December, 1994. Their next promotional post is Assistant Engineer(AE)/Assistant Surveyor of Works(ASW) (Civil). As per the Manipur Civil Engineering Services (PWD) Rules, 2016, vacancies in the post of AE/ASW (Civil) have to be filled up by promotion and direct recruitment in the ratio of 60:40. The promotional quota of 60% is subdivided into two categories: one, for Degree/AIME holders in Civil Engineering and the second, for those who hold Diplomas in Civil Engineering (3-years course) from recognized institutes. The seniority list of Section Officers Grade-I was notified on 30.04.2015. Respondents No. 1-4 figured therein at Sl. Nos. 180, 181, 182 and 221 respectively while respondents No. 5-9 stood at Sl. Nos. 170, 173, 174, 175 and 178 respectively. While so, respondents No. 1-4 claimed that they came to know of the Special DPC meeting held on 28.12.2016 on the strength of which, orders were issued on 16.03.2017 making 138 promotions to the posts of AE/ASW (Civil). Nos. 180, 181, 182 and 221 respectively while respondents No. 5-9 stood at Sl. Nos. 170, 173, 174, 175 and 178 respectively. While so, respondents No. 1-4 claimed that they came to know of the Special DPC meeting held on 28.12.2016 on the strength of which, orders were issued on 16.03.2017 making 138 promotions to the posts of AE/ASW (Civil). They asserted that the Manipur Reservation of Vacancies in Posts and Services (For Scheduled Castes and Scheduled Tribes) Act, 1976 (for brevity, 'the Act of 1976'), was not implemented while effecting these promotions as only 22 candidates belonging to Scheduled Tribes were promoted though 42 such candidates should have been promoted. They claimed that a number of Section Officers-I whose names were below their names in the seniority list were included in the orders of promotion. They then averred in specific terms that the proceedings of the DPC as well as the impugned order of promotion, as far as it related to respondents No. 3-7 in the writ petition, were liable to be set aside. On the strength of these pleadings, they prayed thus in the writ petition: - '(ii) issue writ of Certiorari and/or any other appropriate writ/order/direction by quashing/setting aside the proceedings of the special DPC purportedly held on 28-12-2016 and also the impugned order dated 16-03-2017 (Annexures-A/5) as for it relates to the Respondent No. 3 to 7 as the same are not sustainable in the eye of law. (iii) issue writ of Mandamus and/or any other appropriate writ/order/direction to the respondents by directing the official respondents/authorities concerned to convene/hold a review/fresh DPC so that the cases the petitioners can be considered under their quota and reservation policy and to appoint them thereafter.' 4. The Deputy Secretary (Works), Government of Manipur, filed an affidavit-in-opposition in the writ petition. Therein, he stated to the effect that regular promotions had not been made and promotional avenues were blocked owing to DPCs not being held for a long time due to non-finalization of the seniority list of AEs/ASWs in the PWD till July, 2016, on account of pending Court cases. In consequence, many Section Officers-I had served or were serving in the same status for 25 years or more. In consequence, many Section Officers-I had served or were serving in the same status for 25 years or more. Taking this into account, the State Cabinet, in its meetings held on 20.12.2016 and 27.12.2016, approved the creation of 72 new posts of AE/ASW (Civil) in the PWD for promoting Section Officers-I (Civil) strictly on the basis of their seniority, by relaxing the rule of recruitment, viz., 60% by promotion and 40% by direct recruitment, and also waiving the reservations as per the 200-point roster, maintained under Rule 3 of the Manipur Reservation of Vacancies in Posts and Services (For Scheduled Castes and Scheduled Tribes) Rules, 2011. This approval was subject to the condition that the posts should be abolished once the incumbents retired or got further promoted. Applying the 50/50 quota for Degree/Diploma holders, for the 36 newly created posts meant for Degree holders, only 34 candidates, as per seniority, were found eligible. The remaining 38 newly created posts were filled up with Diploma holders as per their seniority. He stated that the last promotee amongst the Diploma holders, as per seniority, was one V. Jamkhanmang, who stood at Sl. No. 179 of the seniority list and, therefore, the writ petitioners, who stood below him, could not claim eligibility to be promoted as per their seniority positions. The Deputy Secretary further stated that there were 57 vacant posts of AE/ASW (Civil) in the PWD for the year 2016-17 but 9 vacancies were anticipated before the end of the recruitment year and, thus, there were 66 vacant posts to be filled up by way of regular promotion from Section Officer-I cadre. He further stated that as per the 200-point reservation roster, the number of posts reserved for Scheduled Castes and Scheduled Tribes were determined. Out of the 57 existing vacancies, 29 were to be filled with Degree holders, of whom 9 were to be from Scheduled Tribes. The remaining 28 vacancies were to be filled with Diploma holders, of whom 8 were to be from Scheduled Tribes and 1 from Scheduled Castes. As regards the 9 anticipated vacancies, 7 were to be filled with Degree holders, of whom 1 was to be from Scheduled Tribes, and the remaining 2 were to be filled with Diploma holders from unreserved category. He asserted that these 66 vacancies were filled up, duly giving effect to the reservation policy. As regards the 9 anticipated vacancies, 7 were to be filled with Degree holders, of whom 1 was to be from Scheduled Tribes, and the remaining 2 were to be filled with Diploma holders from unreserved category. He asserted that these 66 vacancies were filled up, duly giving effect to the reservation policy. Pursuant to the above exercise undertaken in the Special DPC meeting held on 28.12.2016, 138 Section Officers-I (Civil) in the Public Works Department, in all, were promoted as AEs/ASWs (Civil) vide orders dated 16.03.2017. 5. The above affidavit-in-opposition was filed in December, 2017, but no steps were taken by respondents No. 1-4 to alter either their pleadings or their prayers in the writ petition. In effect, though respondents No. 1-4 only sought invalidation of the promotions of 5 named promotees, viz., respondents No. 5-9 herein, the learned Judge allowed their writ petition going far beyond the ambit of their prayer. The learned Judge invalidated the Special DPC proceedings held on 28.12.2016 and the consequential orders of promotion dated 16.03.2017, in their entirety, i.e., setting aside the promotions of all 138 candidates named therein. The validity of this far-reaching relief granted by the learned Judge is presently under review. 6. The points that arise for consideration are: - (i) whether the orders of promotion dated 16.03.2017 could have been set aside in their entirety when only 5 of the 138 promotees therein were made parties to the writ petition? (ii) whether the promotion of all 138 persons in the promotion orders dated 16.03.2017 could have been set aside without notice to them, when Respondents No. 1-4 had only sought such relief against 5 of those promotees and had only impleaded them as parties to the writ petition? 7. Mr. N Kumarjit, learned Advocate-General, would assert that these points, if answered in the negative, would be sufficient to allow the appeal. He would state that out of the 138 persons promoted under the orders dated 16.03.2017, as many as 94 have retired and only 44 are in service as on date. Further, he would inform this Court that respondents No. 5-9 have also retired from service. Three of them retired in December, 2020, while the other two retired in April, 2017, and January, 2020. Further, he would inform this Court that respondents No. 5-9 have also retired from service. Three of them retired in December, 2020, while the other two retired in April, 2017, and January, 2020. He would point out, on the strength of the additional affidavit dated 24.03.2022 of the Joint Secretary (Works), Government of Manipur, that out of the promotees to the newly created 72 posts, 37 such promotees have retired and only 35 are still serving as on date. These 35 serving officers are at Sl. Nos. 72, 76 to 78, 80, 82, 84, 86, 87, 89, 90, 91, 94 to 100, 102, 103, 105, 106, 109, 111, 112, 113, 126, 127, 132 and 134-138 of the orders of promotion dated 16.03.2017. The Joint Secretary further stated that out of the 66 promotees against regular vacancies/anticipated vacancies, only 9 remain in service as on 01.03.2022 and all the others demitted office upon retirement. The allegation of respondents No. 1-4 that those who were below them in the seniority list were also considered was answered by pointing out that the last Degree holder, as per seniority, who was considered for promotion stood at Sl. No. 222 in the seniority list, far below respondents No. 1-4, who were seniors but held Diplomas. He concluded by stating that owing to the pendency of this appeal, no order was passed abolishing the newly created posts which fell vacant due to retirement of the incumbents. He, however, affirmed that no appointments were made against the 37 vacancies that arose in such newly created posts. 8. Written arguments were filed by both sides. In their written arguments, the appellants reiterated the factual position, set out supra, and asserted that respondents No. 1-4 could not challenge the promotions made without assailing the policy decisions. It was pointed out that, as per their seniority, they were not within the zone of consideration for being considered either for the regular/anticipated vacancies or for the newly created 72 posts. It was also pointed out that, though everything was stated in the affidavit-in-opposition filed in the writ petition, no steps were taken by respondents No. 1-4. They further stated that, at present, there are several vacancies in the posts of AE/ASW (Civil) in the PWD and promotion of respondents No. 1-4 would be considered in due course, as per relevant rules. They further stated that, at present, there are several vacancies in the posts of AE/ASW (Civil) in the PWD and promotion of respondents No. 1-4 would be considered in due course, as per relevant rules. In their written arguments, respondents No. 1-4 attacked the action of the State in creating posts with the intention of overriding the Act of 1976. They asserted that the authorities could not whimsically take a decision to fill up posts as they liked and that the provisions of the Act of 1976 necessarily had to be adhered to. They stated that their writ petition was not defective for non-joinder, as 5 of the promotees were impleaded therein. They concluded by claiming that the judgment under appeal was in accordance with law and did not suffer from any infirmity, warranting appellate interference. In their rejoinder arguments, the appellants stated that the subject promotions were made under the Manipur Civil Engineering Services (PWD) Rules, 2016, and not under the erstwhile Rules of 2013. They referred to the policy decisions of the State Government with regard to creation of 72 new posts and keeping them outside the ambit of the reservation policy and, to some extent, the recruitment rules. They again pointed out that these policy decisions were never subjected to challenge and contended that the learned Judge erred in invalidating the entire exercise in the absence thereof. They reiterated that vacancies were now available and that the same would be filled up in due course, as per rules. 9. Before proceeding to consider the issues that have been raised in this appeal, it would be apposite to examine the validity of the action of the State, which led to this imbroglio. Creation of posts above the cadre strength would be within the power and domain of the State. Presently, the creation of 72 such posts, vide Orders dated 24.12.2016, in the cadre of AE/ASW (Civil) [35 temporary posts of AEs and 37 temporary posts of ASWs] was purportedly to benefit incumbents in the feeder category who had gone without promotions for decades. This constitutes sufficient justification for creation of these posts as the State wanted to address the heartburn of stagnating employees. However, the State did not stop at the creation of such posts but went further. This constitutes sufficient justification for creation of these posts as the State wanted to address the heartburn of stagnating employees. However, the State did not stop at the creation of such posts but went further. It deemed it appropriate to relax the recruitment rules for filling up these posts, by dispensing with the statutorily prescribed direct recruitment quota. It then went on to exempt these posts from the reservation policy altogether. 10. In so far as the recruitment rules issue is concerned, Rule 15 of the Manipur Civil Engineering Services (PWD) Rules, 2016, empowers the Government, if it is of the opinion that it is necessary or expedient to do so, to relax any of the provisions of the rules with respect to any class or category of persons, after recording reasons therefor in writing. That is one aspect of the matter. However, in so far as the reservation policy is concerned, the Act of 1976 holds the field. Be it noted that Section 20 of the Act of 1976 categorically states that the provisions of the said enactment shall have effect notwithstanding anything to the contrary in any other law or in any rule, order or resolution made by the State Government. Section 3 thereof, however, provides that the said statute shall apply to all appointments to posts and services under the State, except those mentioned under Clauses (a)-(j). Section 3(j) reads as under: '3. This Act shall apply to all appointments to the posts and services under the State except - (a)...(i) (j) such other posts as the State Government may, from time to time, by order, specify: Provided that all orders made under clause (j) shall, as soon as after they are made, be laid before the State Legislature for a total period of fourteen days, which may be comprised in one or more sessions.' Section 3(j) of the Act of 1976 therefore permits the State Government to exempt particular posts from the ambit of the statute by adhering to the procedure prescribed therein. The mandatory procedure prescribed is that any such order made by the Government, exempting particular posts from the ambit of the reservation policy, must be laid before the State Legislature for a total period of fourteen days, which may be comprised in one or more sessions. 11. The mandatory procedure prescribed is that any such order made by the Government, exempting particular posts from the ambit of the reservation policy, must be laid before the State Legislature for a total period of fourteen days, which may be comprised in one or more sessions. 11. The original record placed before this Court evidences that the State Cabinet took a decision with regard to exemption of the newly created 72 posts of AE/ASW (Civil) from the ambit of the reservation policy on 27.12.2016 but the said order was never placed before the State Legislature. It is well settled that, if a statute requires a thing to be done in a particular manner, it should be done in that manner or not at all [See Taylor v. Taylor {(1875) 1 Ch. D 426}; Nazir Ahmad v. King Emperor ( AIR 1936 PC 253 ); and Shiv Kumar Chadha v. Municipal Corporation of Delhi (1993) 3 SCC 161 ]. When the Act of 1976 mandated that exemption under Section 3(j) thereof be effected in a particular manner, it could be effected only in that manner and none other. The reason underlying the procedure prescribed is not far to gather. The State Government's decision to do away with statutory reservations, be it for whatever reason, has to be verified and approved by the larger legislative body, viz., the State Legislature, as allowing an elected Government to ignore the reservation policy put in place by way of a statutory enactment would have serious consequences. However, in the case on hand, no such procedure was adhered to and the Cabinet's decision was merrily acted upon and implemented, vide orders dated 16.03.2017, ignoring the reservation policy. Ergo, the exercise undertaken by the State Government, even if it be for the best of motives, was tainted in its very inception and was therefore unsustainable in law. To compound matters further, it appears that the authorities were in a tearing hurry to complete the promotions. The State Cabinet approved the waiver of the reservation policy on 27.12.2016 and the DPC meeting was held the very next day, viz., 28.12.2016. To compound matters further, it appears that the authorities were in a tearing hurry to complete the promotions. The State Cabinet approved the waiver of the reservation policy on 27.12.2016 and the DPC meeting was held the very next day, viz., 28.12.2016. This undue haste on the part of the authorities was accompanied by inevitable lack of proper application of mind, in as much as respondents No.1-4 specifically contended in their writ petition that as many as 13 persons, who had either retired from service or had expired, were included in the promotion orders dated 16.03.2017. The persons who had retired were stated to be at Sl. Nos. 1, 13, 16, 25, 26, 39, 41, 45, 48, 52, 56 & 57 of the said orders while the deceased stood at Sl. No. 47 thereof. In spite of this specific pleading in the writ petition, the authorities did not choose to rebut the same. 12. That being said, the fact also remains that, despite being made aware of the fact that 72 new posts were created and were removed from the ambit of the recruitment rules, to some extent, and from the reach of the reservation policy, in its entirety, respondents No. 1-4 did nothing during the pendency of their writ petition to amend their pleadings and prayers, so as to include a fresh challenge. The judgment, presently under appeal, rendered two years after the filing of the affidavit-in-opposition disclosing these facts, however proceeded as if there was such a challenge and invalidated the entire exercise. The learned Judge would have been justified in doing so if proper prayers and necessary parties were before the Court, but both were wanting. Neither was a challenge made to the creation of posts or to their exclusion from the reservation policy nor were the 138 promotees, named in the orders dated 16.03.2017, impleaded. 13. Mr. B.P. Sahu, learned senior counsel, would contend that, as 5 such promotees were before the Court in a representative capacity, it would suffice. He would rely on case law in support of his contention. However, it may be noted that the writ petition did not indicate that the 5 named promotees, respondents No. 5-9 herein, were impleaded in a representative capacity. He would rely on case law in support of his contention. However, it may be noted that the writ petition did not indicate that the 5 named promotees, respondents No. 5-9 herein, were impleaded in a representative capacity. On the other hand, the prayer in the writ petition was specifically directed against only these 5 promotees and the relief sought was that their promotions, in particular, should be set aside. Mr. B.P. Sahu, learned senior counsel, fairly concedes that these 5 persons were picked up as they were the last five non-ST category Diploma holders in the list of 138 promotees in the orders dated 16.03.2017 (at Sl. Nos. 125, 128, 129, 130 and 133). It may also be noted that the prayer in the writ petition was not directed against the remaining 133 promotees in the orders dated 16.03.2017 and was restricted only to the 5 named promotees. Therefore, it cannot be said, by any stretch of imagination, that these 5 promotees were there in a representative capacity and their presence was sufficient to entail invalidation of the entire exercise. 14. Ajay Kumar Shukla and others v. Arvind Rai and others 2021 SCC OnLine SC 1195, relied upon by Mr. B.P. Sahu, learned senior counsel, also speaks of some of the 'affected parties' being before the Court before an inference can be drawn that their presence, in a representative capacity, is sufficient. However, in the case on hand, given the limited prayer in the writ petition, the other promotees would not even have had an inkling of a premonition that their promotions were under threat and that they would be affected by the adjudication of this writ petition. Thus, they cannot be said to have been represented by the 5 named promotees, against whom alone, respondents No.1-4 had sought relief in their writ petition. Having failed to seek invalidation of all 138 promotions, respondents No. 1-4 cannot baldly claim that the 5 named promotees were impleaded in a representative capacity. The case law cited in that regard is therefore of no avail to them. 15. Significantly, in Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar and another AIR 1963 SC 786 , the Supreme Court pointed out the distinction between a 'necessary' and a 'proper' party. The case law cited in that regard is therefore of no avail to them. 15. Significantly, in Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar and another AIR 1963 SC 786 , the Supreme Court pointed out the distinction between a 'necessary' and a 'proper' party. It was held that a 'necessary party' is one without whom no order can be made effectively while a 'proper party' is one, in whose absence, an effective order can be made, but whose presence is necessary for a complete and final decision on the question involved in the proceedings. As respondents No. 1-4 only chose to challenge the promotion of the 5 persons specifically arrayed as respondents in the writ petition, they alone were proper and necessary parties. The other 133 promotees, whose promotions were not even under challenge in the writ petition, cannot therefore be said to have been represented by them and in consequence, they could not be adversely affected by any order passed therein without notice to them. 16. It may also be noted that it was never the case of respondents No. 1-4 that they were eligible to be considered for promotion against the 66 regular/anticipated vacancies or that the promotions made thereto should be set aside. However, the learned Judge set aside such promotions also without putting such promotees on notice. 17. To summarize, the action of the State in exempting the newly created 72 posts from the Act of 1976 was unsustainable in law, having been done contrary to the prescribed statutory procedure, and the manner in which hasty promotions were made without reference to whether each promotee was still in service, clearly speaks against it. However, the failure of respondents No. 1-4 to frame proper pleadings and prayers in their writ petition and limiting their challenge therein to only the promotion of 5 named promotees estops them from enlarging their prayer at this late stage. Even as regards the 5 promotees impleaded in the writ petition, it is the admitted position that they have already retired from service. To turn back the clock at this stage in so far as they are concerned, on the ground that the State failed to abide by the prescribed statutory procedure for waiving reservations, serves no purpose as it would not even benefit respondents No. 1-4. 18. To turn back the clock at this stage in so far as they are concerned, on the ground that the State failed to abide by the prescribed statutory procedure for waiving reservations, serves no purpose as it would not even benefit respondents No. 1-4. 18. On the above analysis, the points for consideration framed hereinabove are answered in favour of the appellants and against respondents No.1-4. This Court therefore finds that the judgment & order under appeal are unsustainable in law on both counts. The writ appeal is accordingly allowed, setting aside the judgment & order dated 19.12.2019 passed in W.P. (C) No. 253 of 2017. However, the State would be well advised to desist, at least in future, from making and implementing policy decisions without following the mandatory procedures prescribed therefor. The original record is returned to the learned Advocate General, Manipur, in open Court. There shall be no order as to costs.