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2022 DIGILAW 88 (MAN)

Oinam Muhindro Singh v. State of Manipur

2022-05-24

M.V.MURALIDARAN

body2022
JUDGMENT 1. W.P.(C) No.53 of 2019 has been filed by the petitioner to quash the impugned notification dated 10.1.2019 issued by the Director of Education (S), Government of Manipur, thereby notifying for appointment to the post of Vigyan Mandir Officer [for short, 'VMO'] by way of transfer from amongst the Lecturers in Science subject of Government Higher Secondary Schools as per the existing Recruitment Rules of VMO issued vide notification dated 22.7.2005, thereby notifying to submit the duly filled Proforma on or before 3.00 p.m. of 30.1.2019 and also quash the last pay certificate dated 23.1.2019 issued by the Additional Director of Education (S), Government of Manipur, coupled with a prayer to direct the Director of Education (S) to accept the application submitted by the petitioner on 21.1.2019 and to forward the said application with duly filled Proforma submitted by the petitioner to the Director of Education (S) in view of the interim orders dated 19.11.2018, 23.11.2018 and 16.1.2019 passed in W.P.(C) No.1060 of 2018 so as to enable to consider the case of the petitioner as VMO as he has been discharging duties as on 19.11.2018 and 23.11.2018 while passing the status quo order. 2. W.P.(C) No.1060 of 2018 has been filed to set aside the impugned transfer order dated 15.11.2018 issued by the Joint Secretary, Education (S), Government of Manipur, thereby transferring the petitioner to the post of Lecturer from the post of VMO on the ground that the probationary period given in the order was for two years and the same is not yet completed. 3. Since the issue involved in these petitions is one and the same, both the writ petitions were heard together and disposed of by this common order. 4. Heard Mr. N. Jotendro, learned senior counsel for the petitioner and Mr. S. Nepolean, learned Government Advocate appearing for the respondent authorities. 5. Assailing the impugned notification dated 10.1.2019 and the impugned transfer order dated 15.11.2018, Mr. N. Jotendro, the learned senior counsel for the petitioner submitted that while the petitioner was working as Lecturer in the Government Higher Secondary School, he was transferred to the post of VMO on 26.11.2016 and till date he is holding the said post. While holding the transferred post, by the impugned order dated 15.11.2018, the petitioner was transferred to hold the post of Lecturer in Physics at Lamlai Higher Secondary School, Government of Manipur. While holding the transferred post, by the impugned order dated 15.11.2018, the petitioner was transferred to hold the post of Lecturer in Physics at Lamlai Higher Secondary School, Government of Manipur. He would submit that assailing the said transfer order, he has filed W.P.(C) No.1060 of 2018 and by the order dated 19.11.2018, this Court directed to maintain status quo, which was still in force. Thus, he submits that the transfer is vitiated by the interim orders of this Court. 6. The learned senior counsel further submitted that while the status quo order in force, the Director of Education (S) issued the impugned notification dated 10.1.2019, thereby notifying the appointment to the post of VMO by way of transfer from amongst the Lecturer in Science subject of Government Higher Secondary Schools. According to learned senior counsel, the Director of Education (S) ought not to have issued such notification dated 10.1.2019 pending status quo order. Since the impugned notification dated 10.1.2019 issued in violation of the interim order of this Court, the same is liable to be quashed. 7. Per contra, Mr. S. Nepolean, learned Government Advocate appearing for the respondents submitted that the writ petition seeking to set aside the impugned notification dated 10.1.2019 does not deserve to be entertained, as the said notification was issued as per the direction of the Hon'ble Division Bench of this Court dated 10.4.2018 in W.A.No.6 of 2017. In fact, in the said order dated 10.4.2018, this Court clearly stated that the petitioner shall not be allowed to continue to hold the post of VMO beyond the period of two months. Thus, in compliance with the said order, the impugned transfer and posting order dated 15.11.2018 has been issued thereby transferring the petitioner as Lecturer in Physics at Lamlai Higher Secondary School and consequently, the service book has been forwarded to the concerned Higher Secondary School and the last pay certificate has also been issued. 8. The learned Government Advocate further submitted that one post of VMO has to be filled up by way of transfer and posting from amongst the Lecturers in Science subject of Government Higher Secondary Schools and, accordingly, the notification dated 10.1.2019 was issued in that regard. Thus, the question of quashing the said notification does not arise and therefore, the writ petition seeking to quash the said notification deserves to be dismissed. 9. Thus, the question of quashing the said notification does not arise and therefore, the writ petition seeking to quash the said notification deserves to be dismissed. 9. This Court considered the submissions raised by learned senior counsel for the petitioner and the learned Government Advocate for the respondents and also perused the materials available on record. 10. There is no dispute that the petitioner was initially appointed to the post of Science Graduate Teacher on 19.4.2007 and subsequently promoted to the post of Lecturer in the Government Higher Secondary School on 16.11.2016. Thereafter, he has been transferred to the post of VMO by an order dated 26.11.2016. 11. According to the petitioner, the Recruitment Rules for the post of VMO which was published on 22.7.2005 has already been acted upon by giving effect to the promotion in favour of one R.K.Tennedy Singh to the post of Science Promotion Officer. According to the petitioner, as per the Recruitment Rules, there are two modes of appointment for the post of VMO - one is by way of promotion from the eligible candidates such as Science Supervisor/Programme Officer having 5 years regular service in the grade and possessing B.Sc. and B.T./B.Ed. and another by way of transfer from the post of Lecturer in Science subject from the Government Higher Secondary School. As the petitioner has already been appointed as Lecturer in Physics on regular basis in the Government Higher Secondary School by a common promotion order dated 16.11.2016, he is entitled to hold the post of VMO. 12. On a perusal of the Recruitment Rules, this Court finds that it provides that the post of VMO is a selection post. The method of recruitment to the said post is by way of (a) by promotion - 50% and (b) by transfer - 50%. Column 11 of the Recruitment Rules speaks about the manner of recruitment either by promotion/deputation/transfer. The grade from which transfer is to be made is from Lecturers in Science subjects of Government Higher Secondary Schools. The petitioner comes under the transfer category. 13 As stated supra, insofar as the case of transfer is concerned, it only speaks that anyone who are Lecturers in Science subject of Government Higher Secondary School can be transferred to the post of VMO. There is no question of seniority to be taken into account. The petitioner comes under the transfer category. 13 As stated supra, insofar as the case of transfer is concerned, it only speaks that anyone who are Lecturers in Science subject of Government Higher Secondary School can be transferred to the post of VMO. There is no question of seniority to be taken into account. However, the appointment on transfer of the petitioner to the post of VMO has been challenged by one L.Dharendra Singh by filing W.P.(C) No.972 of 2016 before this Court. In the said writ petition, the petitioner has been arrayed as respondent No.5. By the order dated 5.12.2016, this Court dismissed the said writ petition and the operative portion of the order reads thus: 'On perusal of it one would find that seniority is one of the factors to be considered so far it relates to promotion to the post of Vigyan Mandir Officer. So far as the matter relating to transfer is concerned, it only speaks that anyone who are lecturers in Science subject of Government Higher Secondary school can be transferred. The rule never does prescribe that in the matter of transfer, seniority is to be taken into account and thereby transfer and posting of respondent No.5 to the post of VMO can never be said to be illegal even if post has been described as selection post as selection post may be confined to the matter relating to the promotion. Thus, I do not find order of transfer and posting never happens to be in contravention of the Recruitment Rules and thereby the decision rendered in the case of Tejshree Ghag & Ors (supra) referred to on behalf of the petitioner is never applicable in the present case as in that case it has been observed that executive power in absence of any statutory rule cannot be exercised which may result in civil or penal consequences. But here in this case transfer and posting has been made in terms of the Recruitment Rules. Thus, the transfer and posting of the petitioner to the post of VMO seems to be in accordance with statutory rules and hence I do not find any illegality with the order impugned. Hence, this application stands dismissed.' 14. But here in this case transfer and posting has been made in terms of the Recruitment Rules. Thus, the transfer and posting of the petitioner to the post of VMO seems to be in accordance with statutory rules and hence I do not find any illegality with the order impugned. Hence, this application stands dismissed.' 14. Aggrieved by the said order, the petitioner preferred W.A.No.6 of 2017 and the Division Bench of this Court, by the judgment dated 10.4.2018, disposed of the writ appeal in the following lines: '[6] After having heard learned counsel for the parties and also considered the materials as proposed by the State, we are also of the view that the respondent No.5 may be allowed to function as Vigyan Mandir Officer during the said intervening period purely on in-charge basis and it is expected that the authorities will complete the entire process within the prescribed period of two months from today. The authority will take appropriate actions promptly and expeditiously to fill up the post of Vigyan Mandir Officer by way of transfer in terms of the relevant Recruitment Rules, as the respondent No.5 will not be allowed to continue to hold the post of Vigyan Mandir Officer beyond the period of two months. It is made clear that since the appointment of respondent No.5 has been challenged in this proceedings, it is directed that in the selection process which will be initiated by the respondent authorities for appointment to the post of Vigyan Mandir Officer through transfer, the respondent No.5 shall not be associated with the process except being a candidate. With the above directions, the present appeal stands disposed of.' 15. Since the post was not filled up within the aforesaid period of two months, the petitioner has filed M.C.(WA) No.18 of 2018. By the order dated 6.9.2018, the said petition was rejected by giving liberty to approach in accordance with law. The Review Application being Review Application (C) No.9 of 2018 field by the petitioner also closed on 14.1.2019, in view of the closure of the contempt petition being Contempt Case (C) No.170 of 2018. 16. By the order dated 6.9.2018, the said petition was rejected by giving liberty to approach in accordance with law. The Review Application being Review Application (C) No.9 of 2018 field by the petitioner also closed on 14.1.2019, in view of the closure of the contempt petition being Contempt Case (C) No.170 of 2018. 16. On a perusal of the order passed in the contempt petition, this Court finds that the same has been closed recording that the learned counsel for the contemors has produced notification dated 10.1.2019 giving time line for taking up proceeding for recruitment of VMO by way of transfer. 17. It appears that pending contempt petition and the review petition filed by the petitioner, the Joint Secretary, Education (S) has issued the impugned order dated 15.11.2018 transferring the petitioner from the post of VMO as Lecturer in Physics at Lamlai Higher Secondary School, Manipur with immediate effect. According to the petitioner, such transfer order cannot be issued, inasmuch as the matter is sub-judice and that the petitioner cannot be transferred. 18. At this juncture, the learned Government Advocate submitted that the petitioner shall not be allowed to continue to hold the post of VMO beyond two months as per the decision in the writ appeal and in compliance of the order passed in the writ appeal, the transfer order dated 15.11.2018 was issued, thereby transferring the petitioner as Lecturer in Physics at Lamlai Higher Secondary School, Manipur and consequently his service book has been forwarded and the last pay certificate has been issued. 19. It is seen from the records that when W.P.(C) No.1060 of 2018 was taken up for hearing, on 19.11.2018, this Court directed the parties to maintain status quo as on that date and the said interim order still continued. Resultantly, the transferred order dated 15.11.2018 has not given effect to. It also appears that pending the aforesaid status quo order, the impugned notification dated 10.1.2019 has been issued by the respondent authorities. By the order dated 28.1.2019, the impugned notification dated 10.1.2019 as well as the letter dated 23.1.2019 issued by the Additional Director of Education (S) remain suspended and the said interim order also till continuing. It also appears that pending the aforesaid status quo order, the impugned notification dated 10.1.2019 has been issued by the respondent authorities. By the order dated 28.1.2019, the impugned notification dated 10.1.2019 as well as the letter dated 23.1.2019 issued by the Additional Director of Education (S) remain suspended and the said interim order also till continuing. The respondent State filed two miscellaneous petitions being M.C.No.282 of 2019 in W.P.(C) No.53 of 2019 and M.C.No.283 of 2019 in W.P.(C) No.1060 of 2018 to vacate those two orders and those petitions were also heard along with these writ petitions. 20. At this juncture, learned senior counsel for the petitioner submitted that the petitioner had also applied pursuant to the notification dated 10.1.2021 on 21.1.2019 by submitting his application along with duly filled Proforma and the same was also received by the Office of the Directorate of Education (S), Manipur on the same date under R.R.No.0126. However, till today, no reply has been given by the officials of the Directorate of Education(S) for accepting the application of the petitioner. 21. In reply, the learned Government Advocate submitted that pursuant to the order in W.A.No.6 of 2017, the State Government issued the notification dated 10.1.2019 thereby inviting applications from the intending eligible Lecturers of Government Higher Secondary Schools and only after proper verification, the eligible candidates shall be informed accordingly. Thus, the question of reply for accepting the application of the petitioner does not arise. 22. According to the petitioner, the only person seeking appointment to the post of VMO is L.Dharendra Singh, the writ petitioner in W.P.(C) No.972 of 2016. According to the petitioner, the aforesaid L.Dharendra Singh serving dual service both in the Higher Secondary School as also at Moreh College and also working as Lecturer (Physics), Johnstone Higher Secondary School, Manipur and his ex-post facto resignation was approved on 17.10.2019 by the Deputy Director, Education (S). By concealing these facts, he had challenged the appointment of the petitioner as VMO. Thus, it is the say of the petitioner that L.Dharendra Singh is the contender for the post of VMO against the petitioner and since he had already regularized as an Assistant Professor of Physics in Moreh College, Moreh, the post of VMO now holding by the petitioner may be considered for regularization in favour of the petitioner. 23. Thus, it is the say of the petitioner that L.Dharendra Singh is the contender for the post of VMO against the petitioner and since he had already regularized as an Assistant Professor of Physics in Moreh College, Moreh, the post of VMO now holding by the petitioner may be considered for regularization in favour of the petitioner. 23. The consideration of the petitioner for regularization to the post of VMO is upto the decision of the respondent authorities and in accordance with law and this Court cannot direct the respondent authorities to regularize the services of the petitioner in the post of VMO as prayed for by him. 24. Since the status quo order in respect of the transfer of the petitioner vide order dated 15.11.2018 from the post of VMO as Lecturer in Physics at Lamlai Higher Secondary School, Manipur is in force and the impugned notification dated 10.1.2019 calling for applications in the prescribed Proforma from the intending and eligible Lecturers of Government Higher Secondary Schools for recruitment by transfer to one post of VMO of the Department of Education (S) and also the letter dated 23.1.2019 of the Additional Director of Education (S) to the Principal, Lamlai Higher Secondary School, Manipur forwarding the original service book and last pay certificate in respect of the petitioner remain suspended by this Court by way of an interim order dated 28.1.2019 and the same are still continuing, remanding the matter to the respondent authorities is the best course of action in the interest of justice for considering the claim of the petitioner in accordance with law. While considering the claim of the petitioner by the respondent authorities, if they found that regularization of the petitioner to the post of VMO is not feasible, he can be considered as a candidate as held by the Division Bench of this Court in W.A.(C) No.6 of 2017. 25. As rightly stated by the petitioner, since the impugned transfer order dated 15.11.2018 was issued while the matter pending before the Division Bench and since the same has not been acted upon, there is no impediment in set aside the transfer order dated 15.11.2018. 26. 25. As rightly stated by the petitioner, since the impugned transfer order dated 15.11.2018 was issued while the matter pending before the Division Bench and since the same has not been acted upon, there is no impediment in set aside the transfer order dated 15.11.2018. 26. As stated supra, since the petitioner had also applied pursuant to the notification dated 10.1.2019 for the post of VMO and the said application is pending consideration before the respondent authorities, quashing the impugned notification as a whole is not appropriate at this stage. On the other hand, as stated supra, in the interest of justice, this Court can direct the respondent authorities to consider the candidature of the petitioner provided he had applied in the prescribed format with required particulars. 27. While setting aside the impugned transfer order of the petitioner dated 15.11.2018, the matter is remanded back to the respondent authorities for consideration of the candidature of the petitioner as stated supra. 28. With the aforesaid observation and direction, W.P.(C) No.1060 of 2018 is allowed and W.P.(C) No.53 of 2019 is disposed of and the matter is remanded back to the respondent authorities for consideration of the candidature of the petitioner in accordance with law and also as stated supra. Consequently, M.C.(WP) No.282 of 2019 in W.P.(C) No.53 of 2019 and M.C.(WP) No.283 of 2019 in W.P.(C) No.1060 of 2018 are dismissed. M.C.(WP) No.58 of 2022 in W.P.(C) No.53 of 2019 is closed. No costs.