Manipur High Court
Shri Lairenlakpam Poireiton ... vs The State Of Manipur Represented ... on 5 February, 2021
Page 1 of 63
IN THE HIGH COURT OF MANIPUR: AT IMPHAL
1. WP(C) No. 559 of 2020
1. Shri Lairenlakpam Poireiton Meitei, aged about 29 years, S/o
L. Bipin Meitei, a resident of Lilong Chajing Mamang Leikai, P.O.
Lilong & P.S. Singjamei, District Imphal West, Manipur - 795130,
working as Manager (Elect), MSPDCL.
2. Moirangthem Shrikanta Singh, aged about 29 years, S/o (Late)
M. Mangi Singh, a resident of Tentha Khunou Maning Leikai, P.O.
Wangjing & P.S. Khongjom, District Thoubal, Manipur - 795148,
working as Manager (Elect), MSPDCL.
3. Shijagurumayum Santosh Sharma, aged about 33 years, S/o
Sh. Sanakhomba Sharma, a resident of Kangla Siphai, P.O.
Lamlong & P.S. Lamlai, District Imphal East, Manipur - 795010,
working as Manager (Elect), MSPDCL.
4. Usham Rocky Singh, aged about 29 years, S/o (Late) U. Kumar
Singh, a resident of Khundrakpam Awang Leikai, P.O. Pangei &
P.S. Heingang, District Imphal East, Manipur - 795114, working as
Manager (Elect), MSPDCL.
5. Rajkumar Robinson Singh, aged about 33 years, S/o R.K.
Shurachandra Singh, a resident of Mairembam Leikai Sendra
Road, P.O. & P.S. Moirang, District Bishnupur, Manipur - 795133,
working as Manager (Elect), MSPDCL.
6. Konthoujam Binoy Singh, aged about 32 years, S/o
Poiroukhonjin, P.O. & P.S. Yairipok, Imphal East District, Manipur,
working as Manager (Elect), MSPDCL.
7. Nakambam Pritam Singh, aged about 28 years, S/o Nakabam
Rajdhon Singh, a resident of Chingmeirong Maning Leikai, P.O.
Imphal & P.S. Lamphel, Manipur, working as Manager (Elect),
MSPDCL.
8. Kapuipii Paul, aged about 28 years, S/o Pungding A of Tumuyon
Khullen Village, P.O. & P.S. Senapati, Senapati District, Manipur,
working as Manager (Elect), MSPDCL.
9. Khuveio David, aged about 27 years, S/o David Puni of
Saranamai Village, Paomata Block, P.O. & P.S. Tadubi, Senapati
District, Manipur, working as Manager (Elect), MSPDCL.
10. Ngamboi Vaiphei Baite, aged about 30 years, S/o Thothang
Vaiphei Baite of Terakhong Village, Tinseed road, P.O. Porompat
& P.S. Lamlao, Imphal East District, Manipur, working as Manager
(Elect), MSPDCL.
... Petitioners
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 2 of 63
-Versus-
1. The State of Manipur represented by the Commissioner/
Secretary (Power), Govt. of Manipur, Imphal Secretariat,
Babupara, P.O. & P.S. Imphal, Imphal West, Manipur-795001.
2. The Commissioner/Secretary (DP), Govt. of Manipur, Imphal
Secretariat, Babupara, P.O. & P.S. Imphal, Imphal West,
Manipur-795001.
3. The Manipur State Power Company Limited, Manipur through
its Managing Director, MSPC Ltd., office at Keishampat
Junction, P.O. & P.S Imphal, Imphal West, Manipur-795001.
4. The Managing Director, Manipur State Power Distribution
Company Ltd., Manipur through its Managing Director,
MSPDCL, office at 3rd Floor, New Directorate Building near 2nd
MR Gate, Imphal-Dimapur Road, P.O. & P.S. Imphal, Imphal
West, Manipur-795001
... Principal Respondents
5. Manipur Public Service Commission through its Secretary,
MPSC, office at North AOC, DM Road, P.O. & P.S. Imphal,
Imphal West, Manipur-795001.
... Proforma Respondent
6. Shri Soram Priyananda Singh, aged about 56 years old, s/o(L) S.
Ibotombi Singh, Nagamapal Chungkham Leirak, P.O. Lamphel,
P.S. Imphal, Imphal West, Manipur.
7. Shri N. Jasobanta Singh aged about 56 years old, S/o N. Joy Singh
of Keishampat Mutum Leirak, P.O. & P.S. Imphal, Imphal West
District, Manipur.
8. Shri Th. Bimol Singh aged about 49 years old, S/o (L) Th.
Dwajamani Singh of Ward No. 3 of Ningthoukhong, P.O. & P.S.
Bishnupur District, Manipur.
Impleaded as Party Respondents 6, 7 & 8 in the
present writ petition vide order dated 09.12.2020
passed in MC(WP(C)) 196 of 2020
9. Shri Heikrujam Debeswar Singh, aged about 48 years old, S/o (L)
H. Ibohal Singh of Porompat Thawanthaba Leikai, P.O. & P.S.
Porompat, Imphal, Imphal East District, Manipur.
10. Shri Keisham Jayantakumar Singh, aged about 55 years old, S/o
(L) K. Udhop Singh of Haobam Marak Irom Leikai, P.O. Canchipur
& P.S. Singjamei, Imphal West District, Manipur.
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 3 of 63
11. Shri Ngashepam Kirankumar Singh, aged about 51 years old, S/o
Ng. Kesho Singh of Khurai Thangjam Leikai, P.O. Lamlong & P.S.
Porompat, Imphal East District, Manipur.
12. Shri N. Samarendra Singh, aged about 50 years old, S/o (L) N.
Khelchandra Singh of Lilong Chajing Mamang Leikai, P.O. Lilong
Bazar & P.S. Singjamei, Imphal West District, Manipur.
13. Shri Khumukcham Davidkumar Singh, aged about 46 years old, S/o
Kh. Nimai Singh of Thangmeiband Kabrabam Leikai, DM College
Gate, P.O. & P.S. Imphal, Imphal West District, Manipur.
14. Md. Riyajuddin Khan, aged about 47 years old, S/o (L) Mlv. Abdul
Quadis of Lilong Turel Ahanbi, P.O. & P.S. Lilong, Thoubal District,
Manipur.
15. Sapam Surendro Singh, aged about 57 years old, S/o S. Jila Singh
of Khurai Chingangbam Leikai, P.O. Lamlong & P.S. Porompat,
Imphal East District, Manipur.
16. Akhoijam Robindro Singh, aged about 44 years old, S/o Ak. Irabot
Singh of Wangkhei Koijam Keikai Leikai, P.O. & P.S. Porompat,
Imphal East District, Manipur.
17. Khuraijam Gokulchandra Singh, aged about 59 years old, S/o (L)
Kh. Chaoba Singh of Pishum Ningom Leirak, P.O. Imphal & P.S.
Singjamei, Imphal West District, Manipur.
18. Shri Khongbantabam Dorendro Singh, aged about 57 years old,
S/o K. Nongthonba Singh of Mayang Imphal Thana Wangkhei
Leikai, P.O. & P.S. Mayang Imphal, Imphal West District, Manipur.
19. Taruba Thingom, aged about 48 years old, S/o (L) Th. Ibochouba
of Yaishkul Hiruhanba K. Nongthonba Singh of Mayang Imphal
Thana WLeikainghei Leikai, P.O. & P.S. Imphal, Imphal West
District, Manipur.
20. Irom Saratchandra Singh, aged about 45 years old, S/o I.
Nabachandra Singh of Lilong Chajing Bazar, P.O. Lilong & P.S.
Singjamei, Imphal West District, Manipur.
21. Laishram Joykumar Singh, aged about 59 years old, S/o (L) L.
Chaoba Singh of Nambol Laitonjam Makha, P.O. & P.S. Nambol,
Bishnupur District, Manipur.
22. Angom Priyoranjan Singh, aged about 52 years old, S/o (L) A.
Kullachandra Singh of Keishampat Keisham Leikai, P.O. & P.S.
Imphal, Imphal West District, Manipur.
23. Laipubam Sarojkumar Sharma, aged about 54 years old, S/o
(L) L. Gourabidhu Sharma of Brahmapur Laipubam Leikai, P.O.
& P.S. Porompat, Imphal East District, Manipur.
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 4 of 63
24. Kshetrimayum Menon Singh, aged about 57 years old, S/o (L)
Ksh. Pishak Singh of Khongman Zone (V) East, P.O. Imphal &
P.S. Irilbung, Imphal East District, Manipur.
25. Robin Maisnam, aged about 47 years old, S/o M. Ibotombi
Singh of Chingamakha Kongkham Leirak, P.O. & P.S.
Singjamei, Imphal West District, Manipur.
Impleaded as Party Respondents 9 to 25 in the
present writ petition vide order dated 09.12.2020
passed in MC(W.P.(C)) 197 of 2020
With
2. WP(C) No. 609 of 2020
1. Victor Duidang, aged about 54 years, S/o (L) Ningprang
Duidang, a resident of Nagarm Block-A, P.O. & P.S. Imphal,
Imphal West District, Manipur, now working as Assistant Engineer
(Elect), Electricity Department, Manipur, deputed to MSPDCL as
Manager, MSPDCL.
2. Phanjoubam Uma Singh, aged about 55 years, S/o (L) Kh. Bira
Singh, a resident of Andro Machengpat Leikai, P.O. Yairipok &
P.S. Andro, Imphal East District, Manipur, now working as
Assistant Engineer (Elect), Electricity Department, Manipur,
deputed to MSPDCL as Manager, MSPDCL.
3. Khoirom Tarunkumar Meitei, aged about 53 years, S/o (L) Kh.
Ibocha Singh, a resident of Khurai Ahongei Leikai, P.O. Lamlong &
P.S. Porompat, District Imphal East, Manipur, now working as
Assistant Engineer (Elect), Electricity Department, Manipur,
deputed to MSPDCL as Manager, MSPDCL.
4. Laishram Badankumar Singh, aged about 57 years, S/o (L) L.
Ibomcha Singh of Wangkhei Koijam Leikai, P.O. & P.S. Porompat,
Imphal East District, Manipur, now working as Assistant Engineer
(Elect), Electricity Department, Manipur, deputed to MSPDCL as
Manager, MSPDCL.
5. Hawaibam Jiten Singh, aged about 52 years, S/o (L) H.
Dhanabir Singh of Brahmapur Nahabam, P.O. & P.S. Porompat,
Imphal East District, Manipur, now working as Assistant Engineer
(Elect), Electricity Department, Manipur, deputed to MSPDCL as
Manager, MSPDCL.
... Petitioners
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 5 of 63
-Versus-
1. The State of Manipur represented by the Commissioner/
Secretary (Power), Govt. of Manipur, Imphal Secretariat,
Babupara, P.O. & P.S. Imphal, Imphal West, Manipur-795001.
2. The Commissioner/Secretary (DP), Govt. of Manipur, Imphal
Secretariat, Babupara, P.O. & P.S. Imphal, Imphal West,
Manipur-795001.
3. The Manipur State Power Company Limited, Manipur through
its Managing Director, MSPCL, office at Keishampat, P.O. &
P.S Imphal, Imphal West, Manipur-795001.
4. The Manipur State Power Distribution Company Ltd., Manipur
through its Managing Director, MSPDCL, office at 3rd Floor,
New Directorate Building near 2nd MR Gate, Imphal-Dimapur
Road, P.O. & P.S. Imphal, Imphal West, Manipur-795001
5. The Administrative Officer (AO), Electricity Department,
Government of Manipur, office at Keishampat, P.O. & P.S.
Imphal, Imphal West, Manipur-795001.
... Principal Respondents
6. Manipur Public Service Commission through its Secretary,
MPSC, office at North AOC, DM Road, P.O. & P.S. Imphal,
Imphal West, Manipur-795001.
7. Shri Kshetrimayum Menon Singh, aged about 57 years, S/o (L)
Ksh. Pishak Singh of Khongman Zone (V) East, P.S. Irilbung,
P.O. Imphal & P.S. Irilbung, Imphal East District, Manipur, now
working as Assistant Engineer (Elect), Electricity Department,
Manipur, deputed to SCD-I, MSPCL as Manager.
8. Shri Akhoijam Robindro Singh, aged about 44 years old, S/o
Ak. Irabot Singh of Wangkhei Koijam Keikai Leikai, P.O. & P.S.
Porompat, Imphal East District, Manipur, now working as
Assistant Engineer (Elect), Electricity Department, Manipur,
deputed to SCD-III, MSPCL as Manager.
9. Shri Irom Saratchandra Singh, aged about 45 years old, S/o I.
Nabachandra Singh of Lilong Chajing Bazar, P.O. Lilong & P.S.
Singjamei, Imphal West District, Manipur, now working as
Assistant Engineer (Elect), Electricity Department, Manipur,
deputed to Corporate office, MSPDCL as Manager.
10. Shri Angom Priyoranjan Singh, aged about 52 years old, S/o
(L) A. Kullachandra Singh of Keishampat Keisham Leikai, P.O.
& P.S. Imphal, Imphal West District, Manipur, now working as
Assistant Engineer (Elect), Electricity Department, Manipur,
deputed to Corporate Office, MSPDCL as Manager.
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 6 of 63
11. Shri Robin Maisnam, aged about 47 years old, S/o M. Ibotombi
Singh of Chingamakha Kongkham Leirak, P.O. & P.S.
Singjamei, Imphal West District, Manipur, now working as
Assistant Engineer (Elect), Electricity Department, Manipur,
deputed to Work Shop & Testing Division, MSPDCL as
Manager..
Impleaded as Party Respondents 7 to 11 in
the present writ petition vide order dated
09.12.2020 passed in MC(WP(C)) 208 of 2020
... Proforma Respondent
With
3. WP(C) No. 622 of 2020
1. Shri Lairenlakpam Poireiton Meitei, aged about 29 years, S/o L.
Bipin Meitei, a resident of Lilong Chajing Mamang Leikai, P.O.
Lilong & P.S. Singjamei, District Imphal West, Manipur - 795130,
working as Manager (Elect), MSPDCL.
2. Moirangthem Shrikanta Singh, aged about 29 years, S/o (Late)
M. Mangi Singh, a resident of Tentha Khunou Maning Leikai, P.O.
Wangjing & P.S. Khongjom, District Thoubal, Manipur - 795148,
working as Manager (Elect), MSPDCL.
3. Shijagurumayum Santosh Sharma, aged about 33 years, S/o
Sh. Sanakhomba Sharma, a resident of Kangla Siphai, P.O.
Lamlong & P.S. Lamlai, District Imphal East, Manipur - 795010,
working as Manager (Elect), MSPDCL.
4. Usham Rocky Singh, aged about 29 years, S/o (Late) U. Kumar
Singh, a resident of Khundrakpam Awang Leikai, P.O. Pangei &
P.S. Heingang, District Imphal East, Manipur - 795114, working as
Manager (Elect), MSPDCL.
5. Rajkumar Robinson Singh, aged about 33 years, S/o R.K.
Shurachandra Singh, a resident of Mairembam Leikai Sendra
Road, P.O. & P.S. Moirang, District Bishnupur, Manipur - 795133,
working as Manager (Elect), MSPDCL.
6. Konthoujam Binoy Singh, aged about 32 years, S/o
Poiroukhonjin, P.O. & P.S. Yairipok, Imphal East District, Manipur,
working as Manager (Elect), MSPDCL.
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 7 of 63
7. Nakambam Pritam Singh, aged about 28 years, S/o Nakabam
Rajdhon Singh, a resident of Chingmeirong Maning Leikai, P.O.
Imphal & P.S. Lamphel, Manipur, working as Manager (Elect),
MSPDCL.
8. Kapuipii Paul, aged about 28 years, S/o Pungding A of Tumuyon
Khullen Village, P.O. & P.S. Senapati, Senapati District, Manipur,
working as Manager (Elect), MSPDCL.
9. Khuveio David, aged about 27 years, S/o David Puni of
Saranamai Village, Paomata Block, P.O. & P.S. Tadubi, Senapati
District, Manipur, working as Manager (Elect), MSPDCL.
10. Ngamboi Vaiphei Baite, aged about 30 years, S/o Thothang
Vaiphei Baite of Terakhong Village, Tinseed road, P.O. Porompat
& P.S. Lamlao, Imphal East District, Manipur, working as Manager
(Elect), MSPDCL.
... Petitioners
-Versus-
1. The State of Manipur represented by the Commissioner/
Secretary (Power), Govt. of Manipur, Imphal Secretariat,
Babupara, P.O. & P.S. Imphal, Imphal West, Manipur-795001.
2. The Commissioner/Secretary (DP), Govt. of Manipur, Imphal
Secretariat, Babupara, P.O. & P.S. Imphal, Imphal West,
Manipur-795001.
3. The Manipur State Power Company Limited, Manipur through
its Managing Director, MSPC Ltd., office at Keishampat
Junction, P.O. & P.S Imphal, Imphal West, Manipur-795001.
4. The Manipur State Power Distribution Company Ltd., Manipur
through its Managing Director, MSPDCL, office at 3rd Floor,
New Directorate Building near 2nd MR Gate, Imphal-Dimapur
Road, P.O. & P.S. Imphal, Imphal West, Manipur-795001
... Principal Respondents
5. Manipur Public Service Commission through its Secretary,
MPSC, office at North AOC, DM Road, P.O. & P.S. Imphal,
Imphal West, Manipur-795001.
... Proforma Respondent
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 8 of 63
B E F O R E
HON'BLE MR. JUSTICE KH. NOBIN SINGH
For the petitioners ∷ Shri M. Hemchandra, Sr. Advocate
For the respondents ∷ Shri N. Kumarjit, AG
Shri H.S. Paonam, Sr. Advocate
Shri Kh. Samarjit, Advocate
Date of Hearing ∷ 22-01-2021
Date of Judgment & Order ∷ 05-02-2021
JUDGMENT & ORDER
[1] Heard Shri M.Hemchandra, learned Senior Advocate appearing
for the petitioners; Shri N. Kumarjit, learned AG for the State respondents;
Shri H.S. Paonam, learned Senior Advocate for some of the private
respondents and Shri Kh. Samarjit, learned Advocate for some of the
respondents.
[2] Since the above writ petitions have arisen out of similar set of
facts, the same are considered and disposed of by this common judgment
and order.
WP(C) No.559 of 2020
[3.1] By the instant writ petition, the petitioners have prayed for
issuing a writ of mandamus or any other appropriate writ to direct the
respondents to execute/ implement Clause 5(9)(d) of the Manipur State
Electricity Reforms Transfer Scheme, 2013 (hereinafter referred to as "the
Transfer Scheme, 2013") and also to direct the respondents to frame/
formulate Rules & Regulations on service conditions focusing on
promotional avenues to the next higher post of the Deputy General
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 9 of 63
Manager (Elect.), General Manager (Elect.), Executive Director etc. in
MSPCL/ MSPDCL in accordance with law.
[3.2] Facts
and circumstances as narrated in the writ petition, in short,
are that the Addl. Secretary, Manipur Public Service Commission
(hereinafter referred to as "the MPSC") issued an advertisement dated 02-
12-2015 inviting applications for direct recruitment to some posts of
Engineer in the Engineering Departments, Government of Manipur. The
petitioners applied for 10 (ten) posts of the Manager (Elect.) which is
equivalent to the post of Assistant Engineer in the Electricity Department,
Manipur. A merit list of 24 candidates for the direct recruitment to the post
of Manager (Elect.) in the MSPDCL/MSPDL, Manipur dated 01-05-2016
was issued by the MPSC on the basis of the written examination held from
05-01-2016 to 07-01-2016 and the personality test held on 01-05-2016.
The petitioners were appointed as the Managers (Elect.) in MSPDCL vide
order dated 04-06-2016 pursuant to the approval conveyed by the State
Government vide its letter dated 01-06-2016. On the recommendation of
the MPSC in its meeting held on 01-05-2016, Shri Nakambam Pritam
Singh, one of the petitioners herein, was appointed as the Manager (Elect.)
vide order dated 08-02-2019 issued by the Executive Director (HR/ Admn/
IT/ Legal), the MSPDCL.
[3.3] A Memorandum dated 23-12-2013 was placed before the Cabinet
for consideration and approval as regards the unbundling and
corporatization of the Electricity Department, Government of Manipur
W.P.(C) No. 559 of 2020 & ors. Contd../-
through a Transfer Scheme and related matters thereto. As per the
decision of the Government of Manipur to unbundle and corporatize the
Electricity Department, Government of Manipur into two State owned
functionally independent entities viz. (a) Manipur State Power Company
Limited (hereinafter referred as "the MSPCL") as the Holding Company to
discharge the functions of the State Transmission and Generation Utility
and (b) Manipur State Power Distribution Company Limited (hereinafter
referred to as "the MSPDCL") as the deemed distribution licensee/
Distribution Company with effect from the 01-02-2014 in terms of Section
131 and 133 and other applicable provisions of the Electricity Act, 2003.
The Transfer Scheme, 2013 came to be notified on 31-12-2013 and
pursuant thereto, all the employees of the Electricity Department, Manipur
were placed on deputation en mass either at the MSPCL or the MSPDCL
with effect from 01-02-2014 except for the two employees/ officers posted
specifically vide an order of the State Government retaining in the
Electricity Department, Manipur. The Commissioner (Power), Government
of Manipur issued an order dated 11-09-2014 by which 686 employees of
the Electricity department, Manipur were deputed to the MSPCL while 1918
employees were deputed to the MSPDCL on the terms and conditions as
laid down in the Transfer Scheme, 2013. Clause 5(9)(d) of the Transfer
Scheme, 2013 provides that upon completion of three years from the
effective date, the State Government shall provide options to the personnel
to be permanently absorbed in the services of the Transferees, whereupon
W.P.(C) No. 559 of 2020 & ors. Contd../-
such personnel who choose to exercise such option, shall be permanently
absorbed in the Transferees.
[3.4] It is worthwhile to mention here that the Department of Personnel
& Administrative Reforms (Personnel Division), Government of Manipur
issued a notification dated 23-06-1986 making the rules regulating the
method of recruitment to the post of Executive Engineer, in Engineering
Departments, called "the P.W.D/ I.F.C.D.(including MI Department)/ PHED/
Electricity Department, Manipur [Executive Engineer (Elec/ Mech)/
(Civil/Mech)] Recruitment Rules, 1986 (hereinafter referred to as "the
Recruitment Rules, 1986"). The qualifying period of service for promotion
to the post of Executive Engineer (Elect) are:
(i) In the case of Degree Holders, 6 years
(ii) In the case of Diploma Holders, 9 years
iii) ..................
iv) ...................... etc.
[3.5] Instead of executing Clause 5(9)(d) of the Transfer Scheme,
2013 formulated under Section 131 & 133 and other applicable provisions
of the Electricity Act, 2003, the State Government issued a Notification
dated 08-01-2018 ordering the relaxation of the provisions contained in
Column 11 of the Recruitment Rules, 1986 with respect to qualifying period
of service for promotion to the post of the Executive Engineer (Elect) as
one time relaxation which was valid till 31-03-2018. Immediately thereafter,
the Under Secretary (Power), Government of Manipur issued an order
dated 30-01-2018 appointing twenty-two Assistant Engineers (Elect) on
W.P.(C) No. 559 of 2020 & ors. Contd../-
promotion to the post of the Executive Engineer (Elect), Electricity
Department, Manipur on the basis of one time relaxation. Consequent
upon their promotion, the Managing Director, the MSPDCL issued an order
dated 24-04-2018 designating thirteen personnel who are on deputation
from the Electricity Department, Manipur, as the Deputy General Manager,
MSPDCL with immediate effect until further orders and in public interest.
Similarly, the Department of Personnel & Administrative Reforms
(Personnel Division), Government of Manipur issued a notification dated
25-02-2019 thereby relaxing the provisions contained in Column 11 of the
Recruitment Rules, 1986 with respect to qualifying period of service for
promotion to the post of Executive Engineer (Elect) as one time relaxation
which was valid upto 3(three) months from the date of notification.
Thereafter, the Under Secretary (Power), Government of Manipur issued
an order dated 27-02-2019 appointing four Assistant Engineers (Elect) on
promotion to the post of the Executive Engineer (Elect), Electricity
Department, Manipur.
[3.6] The Department of Personnel & Administrative Reforms
(Personnel Division), Government of Manipur issued a Notification dated
24-02-2018 relaxing the provisions contained in Column 10 of the
Recruitment Rules, 1986 regarding the method of recruitment for the post
of Assistant Engineer (Civil/Elect) as "100% by promotion" in place of "60%
by promotion" as one-time relaxation which was valid till 31-03-2018. The
Under Secretary, Government of Manipur issued an order dated 27-02-
2018 appointing forty-two Section Officer Grade-I (Elect) on promotion to
W.P.(C) No. 559 of 2020 & ors. Contd../-
the post of the Assistant Engineer (Elect) in the Electricity Department,
Manipur with immediate effect on one-time measure. In this manner,
instead of implementing Clause 5(9)(d) of the Transfer Scheme, 2013
formulated under Section 131 and 133 and other applicable provisions of
the Electricity Act, 2003 to the effect of absorption or rationalization or
repatriation of the employees of the Electricity Department, Manipur
deputed to MSPCL/MSPDCL, the State Government issued notification
after notification thereby giving promotion to the employees of the
Electricity Department, Manipur deputed to the MSPCL/MSPDCL from
Section officer Grade-I(Elect) to the Assistant Engineers (Elect) and also
from the Assistant Engineers (Elect) to the Executive Engineer (Elect) by
granting relaxation of the provisions contained in Column 11 of the
Recruitment Rules, 1986 with respect to qualifying period of service for
promotion to the post of the Executive Engineer (Elect) as one-time
measure and also with respect to method of recruitment for promotion to
the post of the Assistant Engineer (Civil/Elect) thereby giving preferential
treatment to the staffs of the Electricity Department, Manipur working on
deputation in MSPDCL which is, prima facie, arbitrary, mala fide, ulterior
motives, colourable exercise of power, extraneous consideration, non
application of mind, unequal treatment amongst the equals being violative
of Article 14 & 16 of the Constitution of India, thereby continuously
obstructing the service up-gradation/ promotion of the Managers (Elect)
who are appointed directly in the MSPDCL, to the post of the Deputy
General Manager (Elect), to the General Manager (Elect), to the Executive
W.P.(C) No. 559 of 2020 & ors. Contd../-
Director etc. in the MSPDCL. The State Government has not framed till
date, Rules and Regulations with regard to service conditions for promotion
of the petitioners to the next higher post of the Deputy General Manager
(Elect), the General Manager (Elect), the Executive Director etc. in the
MSPCL/MSPDCL. The total number of sanctioned posts are seven posts in
respect of the General Manager (Elect), twenty eight posts in respect of the
Deputy General Manager (Elect) and eighty two posts in respect of the
Manager (Elect) created for the MSPCL/MSPDCL and the aforesaid
sanctioned posts on different capacities are being filled up from amongst
the employees of the Electricity Department, Manipur, who are now
working in MSPDCL on deputation, by giving relaxation of the provisions
contained in Column 11 of the Recruitment Rules, 1986 with respect to
qualifying period of service for promotion to the post of the Executive
Engineer (Elect) and also with respect to method of recruitment for
promotion to the post of the Assistant Engineer (Civil/Elect) as "100% by
promotion" in place of "60% by promotion" as one-time measures arbitrarily
by the State Government, ignoring/ overlooking the cases of the
employees appointed directly in the MSPCL/MSPDCL.
[3.7] Being aggrieved by the aforesaid actions of the State
respondents, the instant writ petitions have been filed by the petitioners on
the inter-alia grounds that the actions of the State respondents granting
promotion to the employees of the Electricity Department, Manipur by way
of relaxation of the Recruitment Rules, 1986 are arbitrary, illegal, malafide,
preferential treatment, extraneous consideration, unequal treatment
W.P.(C) No. 559 of 2020 & ors. Contd../-
amongst the equals being violative of Article 14 & 16 of the Constitution of
India; that the rights of the petitioners to be considered for promotion to
next higher posts which are fundamental rights enshrined under the
Constitution of India, have been curtailed and shall become doom forever,
when the State Government has considered the appointment by promotion
to the post of the Deputy General Manager (Elect), MSPDCL from amongst
the Assistant Engineers of the Electricity Department, Manipur who are
now working in the MSPDCL on deputation. The State Government keeps
on making appointments on promotion by way of relaxation of the
Recruitment Rule to the employees of the Electricity Department, Manipur
on one-time relaxation basis without showing any concern towards the
employees of the MSPCL/MSPDCL. Since none of the 23 Managers
(Elect) who were directly appointed vide orders dated 30-10-2014, was
given promotion to the post of Deputy General Manager (Elect), the same
fate would be faced by the petitioners.
[4.1] The stand of the State Government as indicated in the affidavit
filed on behalf of the respondent No.1 is that the promotions given from
Section Officer Grade-I to the Assistant Engineer (Elect) and also from
Assistant Engineer (Elect) to Executive Engineer (Elect) were done by
relaxation of the recruitment rules as one-time measure as per the decision
of the State Cabinet and therefore, the petitioners may not have any
grievance against the decision. The State Government shall consider the
absorption policy as and when financial conditions of the State
Government improve as there will be huge financial involvement in the
W.P.(C) No. 559 of 2020 & ors. Contd../-
State. The MSPCL/MSPDCL are purely Government owned companies
and as such, the State Government may take decision from time to time in
consideration of the urgency and in the interest of public. The MSPCL has
its own Human Resources Policy, Chapter 7 of which deals with the career
progression of the staff and it is broadly divided into eight tables for
eligibility criterion for promotion to different posts. Hence, the allegation that
the State Government has not framed, till date, any rules & regulations with
regard to their service conditions, is denied as incorrect and as such, this
Court may be pleased to reject the same. There is no question of taking
advantages in giving promotion to the employees of the Electricity
Department, Manipur who are deputed to the MSPCL/MSPDCL as the
promotion was and shall be done against the available sanctioned posts
reserved for the deputed personnel.
[4.2] On allowing the applications being MC[WP(C)] No.196 of 2020
and MC[WP(C)] No.197 of 2020 vide order dated 09-12-2020 passed by
this Court, the applicants therein have been impleaded as party
respondents. No counter affidavit has been filed on their behalf in the
matter for the reason that on 09-12-2020 itself, this Court had allowed the
prayer made by their counsel to the effect that the averments made in the
said applications would be treated as that of the counter affidavit. The
stand taken by them therein is that there is no discrimination as regards the
appointment on promotion between the employees of the Electricity
Department, Manipur on the one hand and that of the MSPCL/MSPDCL on
the other hand in as much as the promotions are made against the posts
W.P.(C) No. 559 of 2020 & ors. Contd../-
meant for them. As many as 31 persons were appointed as the Deputy
Manager (Elect) in the MSPCL vide order dated 05-01-2015 issued by the
Managing Director, MSPCL, out of which nine were given promotion to the
post of Manager (Elect) vide order dated 31-12-2019. In addition to that,
Shri Usham Rocky Singh and the petitioner No.4 who were appointed as
the Manager (Elect), were given promotion to the post of the Deputy
General Manager on in-charge basis vide order dated 02-11-2019.
WP(C) No. 609 of 2020
[5.1] By the instant writ petition, the petitioners have prayed for issuing
a writ of certiorari or any other appropriate writ to quash and set aside the
impugned process of one time relaxation of qualifying year of service for
appointment by promotion to the post of Executive Engineer (Elect),
Electricity Department, Manipur; to set aside the qualifying period of
service in respect of the Assistant Engineer (Elect) having Diploma in
Electrical Engineering in the proposed relaxation and also to issue a writ of
mandamus or any other appropriate writ to direct the respondents to
review/re-consider the said impugned process.
[5.2] On the recommendation of a DPC meeting held on 14-12-2006
and the approval of the State Government being conveyed on 19-12-2006,
the petitioners who are Diploma in electrical engineering, along with 163
others, were appointed on promotion to the post of Section Officer Grade-I
on regular basis vide order dated 22-12-2006 issued by the Chief
Engineer, Power, Manipur. After they having served for more than 10
W.P.(C) No. 559 of 2020 & ors. Contd../-
years, the petitioner No.1 along with 12 others Section Officer Grade-I
(Elect), Electricity Department, Manipur were appointed on promotion to
the post of Assistant Engineer (Elect), Electricity Department, Manipur vide
order dated 31-07-2017, followed by an order dated 27-02-2018 by which
the petitioner Nos. 2, 3, 4 & 5 along with some other Section Officer Grade-
I (Elect), Electricity Department, Manipur were appointed on promotion to
the post of Assistant Engineer (Elect), Electricity Department, Manipur.
Thereafter, consequent upon their promotion as the Assistant Engineer
(Elect), they were designated as the Manager, MSPDCL vide order dated
24-04-2018 issued by the Managing Director, MSPDCL. In the seniority list
of the Assistant Engineer (Elect), Electricity Department, Manipur as on 01-
10-2020, the petitioner Nos. 1, 2, 3, 4 & 5 appeared at Sl. No. 4, 9, 10, 29
and 32 respectively.
[5.3] As per the Recruitment Rules, 1986, the Assistant Engineer(s)
with Diploma holders were eligible for promotion to the post of Executive
Engineer (Elect) after they having served for 9 (nine) years. After the
Recruitment Rules, 1986 being relaxed as regards the Column 11 vide
Notification dated 08-01-2018, 22 (twenty-two) Assistant Engineers (Elect)
were appointed on promotion to the post of Executive Engineer (Elect),
Electricity Department, Manipur on the basis of one-time relaxation which
was valid till 31-03-2018 vide order dated 30-01-2018 issued by the Under
Secretary (Power), Government of Manipur. In the same manner, after the
Recruitment Rules, 1986 being relaxed again vide Notification dated 25-02-
2019, 4 (four) Assistant Engineers (Elect) were appointed on promotion to
W.P.(C) No. 559 of 2020 & ors. Contd../-
the post of Executive Engineer (Elect), Electricity Department, Manipur vide
order dated 27-02-2019 issued by the Under Secretary (Power),
Government of Manipur. Thus, the State Government issued notification
after notification for the relaxation of the Recruitment Rules, 1986 thereby
granting promotions to the post of the Executive Engineer (Elect) from the
post of the Assistant engineers (Elect) as one time measure.
[5.4] To their shock and surprise and as has been done earlier, a
process has been initiated vide Memorandum of Cabinet with the approval
being granted by the State Government for consideration of appointment
by promotion to the post of Executive Engineer (Elect) from amongst the
Assistant Engineer (Elect) by granting relaxation of the Recruitment Rules,
1986. The proposed one-time relaxation of the existing Recruitment Rules
for the post of Executive Engineer (Elect) in terms of period of regular
service in the grade which has been cleared by the State Cabinet and
awaits the administrative approval/ Notification, is reproduced herein
below:
Sl. Name of Existin Proposed Relaxation
No. the post g RRs
3. EE(Elect) Para 7 (a)An Officer having served more than
above 12(twelve) years of regular service in the Grades
of Section Officer-I (elect) and Assistant
Engineer(Elect) taken together out of which a
minimum of 2(two) years regular service in the
Grade of Assistant Engineer (Elect) and
possessing Degree/AMIE in Electrical
Engineering may be appointed by promotion in
the vacant post of Executive Engineer (Elect)
through normal process of DPC in association
with the Manipur Public Service Commission.''
(b) An Officer having served more than
20(twenty) years of regular service in the Grades
of Section Officer-I (Elect) and Assistant
W.P.(C) No. 559 of 2020 & ors. Contd../-
Engineer (Elect) taken together out of which a
minimum of 5(five) years regular service in the
Grade of Assistant Engineer (Elect) and
possessing Diploma in Electrical Engineering
may be appointed by promotion in the vacant
posts of Executive Engineer (Elect) through
normal process of DPC in association with the
Manipur Public Service Commission.
[5.5] Being aggrieved by the said proposed one-time relaxation of the
existing Recruitment Rules for the post of the Executive Engineer (Elect),
the instant writ petition has been filed by the petitioners on the inter-alia
grounds that the action of the State Government is mala fides, bias, illegal,
extraneous consideration, material irregularities, for the reason that the
qualifying period of regular service for appointment by promotion to the
post of Executive Engineer (Elect) is 12(twelve) years as the Section
Officer-I (Elect) and the Assistant Engineer (Elect) taken together, out of
which a minimum of 2 (two) years regular service in the grade of the
Assistant Engineer (Elect) in respect of the Assistant Engineer (Elect)
having Degree/AMIE in Electrical Engineering. But in respect of the
Assistant Engineer (Elect) having Diploma in Electrical Engineering, the
qualifying period of regular service is 20 (twenty) years as the Section
Officer-I (Elect) and the Assistant Engineer(Elect) taken together, out of
which a minimum of 5 (five) years regular service in the grade of the
Assistant Engineer (Elect). The ratio as specified in the said proposed one-
time relaxation of Recruitment Rules i.e. 12(twelve) years for the Assistant
Engineer (Elect) having Degree/AMIE in Electrical Engineering and 20
(twenty) years for the Assistant Engineer (Elect) having Diploma in
Electrical Engineering, is not proportionate, taking into consideration of the
W.P.(C) No. 559 of 2020 & ors. Contd../-
existing Recruitment Rules read with the previous one-time relaxation
measures. Moreover, it is also totally an act of misuse, abuse, arbitrary
exercise of power, non application of mind, improper, extraneous
consideration which is inconsonant with law as has been done in the past.
The Convenor, AE Diploma Holder (AE/MSPDCL) Ad-hoc Committee
approached the Hon'ble Chief Minister, Manipur by way of a letter dated
16-10-2019 with a prayer for review/ revise the one-time relaxation in the
Recruitment Rules. However, no tangible action has been initiated by the
State Government, thereby curtailing the right of the Assistant Engineer
(Elect) having Diploma in Electrical Engineering, to be considered for
promotion to the next higher post. The proposed one-time relaxation of
qualifying year of service for appointment by promotion to the post of the
Executive Engineer (Elect), Electricity Department, Manipur is absolutely
irrational, ridiculous, absurd, unreasonable, inconsistent, illogical, illegal,
bias & unsubstantiated to the effect of calculation of ratio, in terms of
period of regular service in the grade, taking into consideration of the
existing Recruitment Rules of 1986 thereby giving preferential treatment to
the Assistant Engineers(Elect) having Degree in Electrical Engineering,
working on deputation in the MSPCL/MSPDCL as prima facie, arbitrary,
mala fide, ulterior motives, selective discrimination, colourable exercise of
power, extraneous consideration, non application of minds, unequal
treatment among the equals and smack Article 14 & 16 of the Constitution
of India.
W.P.(C) No. 559 of 2020 & ors. Contd../-
[6.1] In the affidavit-in-opposition filed on behalf of the State
Government, it has been stated that the petitioners have no any cause of
action, as their rights are not affected in any manner. The existence of a
legal right is the condition precedent for invoking the writ jurisdiction.
Hence, they have no locus standi to file the writ petition. The proposal of
one-time relaxation of the recruitment rules is yet to be finalised and as
such, their writ petition is premature and not maintainable in law. As per the
recruitment rules, the qualifying period of regular service for promotion of
Section Officer Grade-I to the Assistant Engineer (Elect) is three years for
officers possessing degree/ AMIE, while it is eight years for officers
possessing diploma. Similarly, the qualifying period of regular service for
promotion from the Assistant Engineer (Elect) to the Executive Engineer
(Elect) is six years for the officers possessing degree/ AMIE, while it is nine
years for the officers possessing diploma. Thus, the resultant length of
service required for promotion from the Section Officer Grade-I to the
Executive Engineer (Elect) is nine years and seventeen years for the
officers possessing degree/ AMIE and diploma respectively. What has now
been proposed is that the resultant length of service required for promotion
from the Section Officer Grade-I to the Executive Engineer (Elect) is twelve
years and twenty years for the officers possessing degree/ AMIE and
diploma respectively. The said proposal has been made proportionately
and equally without any discrimination. The relaxation of the recruitment
rules can only be in the period of regular service in the post of the Section
Officer Grade-I and the Assistant Engineer taken together. Even if the
W.P.(C) No. 559 of 2020 & ors. Contd../-
period of regular service is reduced from twenty years to eighteen years,
the petitioners would not still be eligible for consideration for promotion for
the reason that they were appointed as the Section Officer Grade-I vide
order dated 22-12-2006 and the Assistant Engineer vide orders dated 31-
07-2017 and 27-02-2018. Moreover, since it is only a proposal, the
question of reviewing/ reconsideration does not arise. They are not
similarly situated with that of the petitioners in WP(C) No. 559 of 2020.
[6.2] In their additional affidavits filed by the petitioners, it has been
prayed that the letter dated 18-11-2020 which could not inadvertently be
filed by them along with the writ petition and the notification dated 02-01-
2021 issued during the pendency of the writ petition, be treated as part of
the writ petition. In their rejoinder affidavit, it has been submitted that as a
consequential action to the process of one-time relaxation of the qualifying
year of service, the Notification dated 02-01-2021 was issued ordering
relaxation of the provision contained in Column 11 of the recruitment rules
for the post of the Executive Engineer (Elect) in the Electricity Department,
Manipur as one-time measure which is arbitrary favouring the Assistant
Engineering (Elect) with degree in engineering. It has further been
submitted that the prayers in the writ petition were for quashing the process
and its consequential orders/ Notifications etc. issued pursuant to the said
one-time relaxation of the existing recruitment rules.
WP(C) No. 622 of 2020
W.P.(C) No. 559 of 2020 & ors. Contd../-
[7.1] By the instant writ petition, the petitioners have prayed for
issuing a writ of Certiorari or any other appropriate writ to quash and set
aside the impugned letter dated 18-11-2020 in respect of 34 (thirty-four)
posts of the Executive Engineer (Elect/Civil) with a prayer to modify/ review
it and also to issue a writ of Mandamus or any other appropriate writ to
direct the respondents to publish a combined seniority list of the Manager
(Elect), appointed directly in the MSPCL/MSPDCL and the Assistant
Engineer (Elect), Electricity, Manipur deputed/ absorbed/ transferred to the
MSPCL/MSPDCL.
[7.2] When the writ petition being WP(C) No. 559 of 2020 was taken
up for consideration on 03-11-2020, this Court while issuing notice to the
respondents was pleased to pass an interim order which reads as under:
"By way of interim, it is directed that no further promotion shall be
made from the post of Assistant Engineer (Elect) to Executive
Engineer (Elect) and from the post of Executive Engineer (Elect)
to Superintending Engineer (Elect) in the Electricity Department,
Manipur without the leave of this Court."
In spite of the fact that the State respondents were aware of the
said order passed by this Court, the Under Secretary (Power), Government
of Manipur, in total disregard of the interim order dated 03-11-2020, issued
the letter dated 18-11-2020 conveying the approval of the State
Government to earmark various categories of posts of the MSPCL/
MSPDCL and the same was issued with the approval of the Cabinet in its
meeting held on 15-10-2020, concurred by the DP vide U.O. dated 10-11-
W.P.(C) No. 559 of 2020 & ors. Contd../-
2020, in order to frustrate/ make the pending case being WP (C) No.559 of
2020 filed by the present petitioners as infructuous.
[7.3] From the perusal of the tabulation, it is an undisputed fact that
the total number of sanctioned posts in respect of the Executive Engineer
(Elect) and the Deputy General Manager are 35+57=92 posts as
earmarked vide letter dated 18-11-2020. The total sanctioned posts of the
Deputy General Manager of the MSPDCL/MSPCL are not actually workout
and not enjoyed by the feeder post of the Manager (Elect) appointed
directly in the MSPDCL/MSPCL. It is prima facie seen that the total number
of sanctioned posts of the Executive Engineer (Elect) in the Electricity
Department, Manipur are 35 posts, out of which 21 posts are reserved for
the deputed personnel in the MSPDCL; 13 posts are reserved for the
deputed personnel in the MSPCL and one post of the Executive Engineer
(Elect) is retained in the Electricity Department, Manipur. Similarly, the total
number of sanctioned posts of the Deputy General Manager in the
MSPCL/MSPDCL are 57 posts out of which 33 posts are earmarked for the
MSPDCL and 24 posts are earmarked for the MSPCL. However, only 23
posts out of 57 sanctioned posts in respect of the Deputy General
Manager, have been actually earmarked for the MSPDCL/MSPCL recruited
personnel and the remaining 34 sanctioned posts of the Deputy General
Manager have been compromised and adjusted as the sanctioned posts
for the Electricity Department, Manipur without any justification and proper
reason and the yardstick used in earmarking the same is highly illegal,
improper, irregular, arbitrary, malafides, extraneous consideration, non
W.P.(C) No. 559 of 2020 & ors. Contd../-
application of mind, full of bias, favouritism, nepotism and bad in law and
therefore, the letter dated 18-11-2020 has no legs to stand before the eyes
of law and the same is liable to be quashed and set-aside. From the
applications being MC[WP(C)] No. 201 of 2020 and MC[(WP(C)] No.202 of
2020 filed by some of the Engineers/Employees of the Electricity
Department, Manipur, the employees appear to have been promoted from
the sanctioned posts and not from that of the companies. However, the
letter dated 18-11-2020 is very clear to the effect that 34 sanctioned posts
of the MSPCL/MSPDCL have been occupied by the employees of the
Electricity Department, Manipur without any justification. Both are
contradictory to each other. In the reply to an application under RTI on 16-
06-2020, it is stated that the number of posts for the post of the Deputy
General Manager (Elect) in the MSPDCL is 28 (twenty eight) whereas the
vacancy position in the post of the Deputy General Manager (Elect) is
shown as 19 (nineteen) only and from this, it is clear that 9(nine) posts are
already filled up by the employees of the Electricity Department, Manipur,
since no promotion has been made to the post of the Deputy General
Manager (Elect) from the employees of the MSPCL/MSPDCL. Being
aggrieved by the said letter dated 18-11-2020 issued by the Under
Secretary (Power), Government of Manipur, the instant writ petition has
been filed by the petitioners on the inter-alia grounds that the said letter
dated 18-11-2020 was issued in order to accommodate the Assistant
Engineer (Elect), Electricity Department, Manipur who are junior to the
petitioners by giving relaxation of the provisions contained in Column 11 of
W.P.(C) No. 559 of 2020 & ors. Contd../-
the Recruitment Rules, 1986 with respect to the qualifying year of service
for promotion to the post of the Executive Engineer (Elect). The 23 (twenty
three) Managers (Elect) appointed directly in the MSPDCL/MSPCL vide
order dated 30-10-2014 issued by the Executive Director (HR/Admin),
MSPDCL are now qualified and eligible for consideration of appointment as
the Deputy General Manager. The clear vacant posts of the Deputy
General Manager (Elect) in the MSPDCL/MSPCL could be filled up from
amongst the eligible 23 Managers (Elect) and there is no exigency/ need to
relax the qualifying years of service as mentioned in the Recruitment
Rules, 1986. The number of employees of the MSPDCL/MSPCL from the
rank of the Assistant Manager to Manager (Elect) who are directly recruited
from the company, are 78 (Seventy eight) whereas the number of
employees of the Electricity Department, Manipur deputed from the S.O
Grade-II to the Assistant Engineer are much lesser than the directly
recruited personnel and therefore, the balance of convenience is in favour
of the petitioners. The impugned letter dated 18-11-2020 was issued and
any consequential orders/ letters/ notifications in pursuant thereto will lead
to miscarriage of justice and irreparable injury to the petitioners.
[8] In the affidavit-in opposition filed on behalf of the State
Government, it has been stated that the petitioners are young, aged about
30 years and have several years of service left in their career. The
personnel of the Electricity Department, Manipur in the cadre of the
Assistant Engineer and the Executive Engineer have been serving for
many years and they are on the verge of retirement. Moreover, there are
W.P.(C) No. 559 of 2020 & ors. Contd../-
vacancies in the grade of the Executive Engineer and the Superintending
Engineer within the quota allotted for them. Hence, in the promotion of
these officers in the grade of the Executive Engineer and the
Superintending Engineer, no interests of the Managers (Elect) serving in
the MSPDCL shall be affected as there are enough vacancies meant for
them. Besides this, the petitioners are yet to be eligible for consideration for
promotion to higher posts and therefore, they have no locus standi to file
the present writ petition. The absorption policy under Clause 5(9)(d) of the
Transfer Scheme shall be considered as and when financial conditions of
the State improve as there will be huge financial involvement of the State
Government. The promotions from the post of the Assistant Engineer
(Elect) to the post of the Executive Engineer (Elect) have been made after
the relaxation of the recruitment rules as per decision of the State Cabinet
in view of the fact that they have been serving for many years and that they
are on the verge of retirement. The service conditions of the petitioners
who are directly recruited in the MSPDCL are governed by separate human
recourse policies which have been approved by the State Government vide
letter dated 09-10-2014. The issue of promotion /non-promotion of 23
Managers (Elect) appointed directly in the MSPDCL who are not parties in
the writ petition, cannot be raised in the writ petition. There is no question
of disregard of the interim order dated 03-11-2020 passed by this Court in
WP(C) No.559 of 2020 and moreover, an appeal has been preferred
against it. The letter dated 18-11-2020 was issued conveying approval for
earmarking various categories of posts in the MSPCL/ MSPDCL for
W.P.(C) No. 559 of 2020 & ors. Contd../-
ensuring no confusion in the three establishments. A policy decision was
taken by the Cabinet in its meeting held on 15-10-2020 for earmarking the
posts in the grade of the Assistant Engineer and above in the three
establishments in terms of Clause 5(9)(c) of the Transfer Scheme, 2013.
The petitioners are to be considered for appointment as the Deputy
General Manager against the posts earmarked for them. The allegation
that 34 sanctioned posts from MSPCL/MSPDCL have been occupied by
the employees of the Electricity Department, Manipur, is baseless. The
letter dated 18-11-2020 does not affect the rights and interest of the
petitioners at all.
[9] From the pleadings as aforesaid, two issues have arisen for
consideration by this Court-one, whether the non-implementation of Clause
5(9)(d) of the Transfer Scheme, 2013 which had come into force on 01-02-
2014, is bad in law and two, if the answer in the first issue is in the
affirmative, whether the subsequent actions, taken by the State
Government towards the relaxation of the Recruitment Rules, 1986 and the
grant of promotions to the personnel of the Electricity Department, Manipur
pursuant thereto, are unfair, unreasonable, arbitrary, malafide,
discriminatory and illegal being violative of Article 14 of the Constitution of
India.
[10.1] It has been submitted by Shri M. Hemchandra, Senior Advocate
appearing for the petitioners that although Clause 5(9)(d) of the Transfer
Scheme, 2013 provides that upon completion of three years, the State
W.P.(C) No. 559 of 2020 & ors. Contd../-
Government shall provide option to its personnel to be permanently
absorbed in the services of the MSPCL/MSPDCL, the State Government
has failed to implement it. The provisions of Clause 5(9)(d) are mandatory
for the reason that the word "shall" has been used therein and therefore, in
terms of Clause 5(9)(d) thereof, the State Government ought to have
implemented it in time so that the personnel of the Electricity Department,
Manipur would have been absorbed in the MSPCL/MSPDCL in the year,
2016 and the issues involved herein would not have arisen at all. Without
implementing the provisions of Clause 5(9)(d), the act and conduct of the
State Government is an arbitrary exercise of power at the whim and
caprice and that too, without application of mind. In other words, the
actions taken by the State Government towards the relaxation and grant of
promotion are arbitrary, malafide and illegal. It has further been submitted
by him that the private respondents are junior to the petitioners in the cadre
of the Assistant Engineer (Elect)/ Manager as per the Recruitment Rules,
1986 and therefore, the policy decision as claimed by the State
Government is illegal, arbitrary being violative of Article 14 and 16 of the
Constitution of India. Being fully aware of this Court's order dated 03-11-
2020, the Under Secretary (Power), Government of Manipur wrote a letter
dated 18-11-2020 conveying approval of earmarking various categories of
posts with the approval of the Cabinet in order to frustrate/ make the writ
petition infructuous. The said letter dated 18-11-2020 was issued with a
view to accommodate the Assistant Engineers (Elect), Electricity
Department, Manipur who are junior to the petitioners by relaxation of the
W.P.(C) No. 559 of 2020 & ors. Contd../-
recruitment rules which will cause serious prejudice, irreparable loss and
injury to the petitioners. The private respondents are not eligible for
consideration of appointment on promotion as per the Recruitment Rules,
1986 and there is no need to relax the qualifying year of service to
accommodate them. The right to be considered for promotion is a
fundamental right and any promotion given to the personnel of the
Electricity Department, Manipur by relaxation of the recruitment rules, will
prejudice the rights of the petitioners. The continuous grant of relaxation for
accommodating the personnel of the Electricity Department, Manipur
without implementing Clause 5(9)(d) of the Transfer Scheme, 2013 is
highly unfair and unreasonable. In support of his contention, he has relied
upon the decisions rendered by the Hon'ble Supreme Court in Municipal
Council, Ratlam Vs. Shri Vardichan & ors, (1980) 4 SCC 162; All India
Imam Organisation & ors Vs. Union of India & ors, (1993) 3 SCC 584;
J.C Yadav & ors Vs. State of Haryana & ors, AIR 1990 SC 857; Keshav
Chandra Joshi & ors Vs. Union of India & ors, 1992 Suppl (1) SCC 272;
Ajit Singh (II) Vs. State of Punjab & ors, (1999) 7 SCC 209; Suraj
Prakash Gupta Vs. State of J & K, (2000) 7 SCC 561; Kapila Hingo
Rani Vs. State of Bihar, (2003) 6 SCC1; Secretary, State of Karnatak &
ors Vs. Uma Devi & ors, (2006) 4 SCC 1; T.M Sampath & ors Vs.
Secretary, Ministry of Water Resources & ors, (2015) 5 SCC 333.
[10.2] Combating the submissions of the learned counsel appearing for
the petitioners, it has been submitted by Shri N. Kumarjit Singh, learned
Advocate General that the Transfer Scheme, 2013 was made in terms of
W.P.(C) No. 559 of 2020 & ors. Contd../-
the provisions of Section 131 & 133 of the Electricity Act, 2003 but the
provisions of Clause 5(9)(d) thereof have not been implemented and they
will be implemented as and when the financial conditions of the State
Government improve. The Electricity Department, Manipur and the
MSPCL/MSPDCL are different legal entities and since the absorption policy
has not been implemented, the personnel of the Electricity Department,
Manipur did continue to be their employees. Therefore, any action taken by
the State Government in respect of their employees will not affect the rights
of the petitioners who are governed by the norms of the MSPCL/MSPDCL.
The petitioners have no cause action and in other words, they have no
locus standi to file the writ petitions which are liable to be dismissed by this
Court. The policy decision is taken keeping in mind the fact that the
personnel of the Electricity Department, Manipur have been serving for the
last many years and are on the verge of retirement, while the petitioners
are young and have long years to serve the MSPCL/MSPDCL. Reliance
has been placed by him in the decisions rendered by the Hon'ble Supreme
Court in State of UP Vs. Choudhury Ram Beer Singh, (2008) 5 SCC
550; Dilip Kumar Garg & ar Vs. State of UP & ors, (2009) 4 SCC 753;
Parisons Agrotech (P) Ltd Vs. Union of India & ors, (2015) 9 SCC 657
and Essar Steel Ltd. Vs. Union of India & ors, (2016) 11 SCC 1. The
submissions of Shri H.S Paonam, Senior Advocate appearing for some of
the private respondents are similar to that of the learned Advocate General
and therefore, the same are not referred to herein. However, it has been
submitted by him that there is no timeline for the absorption of the
W.P.(C) No. 559 of 2020 & ors. Contd../-
personnel of the Electricity Department, Manipur as prescribed in the
Transfer Scheme, 2013 and the purpose of granting promotion by
relaxation of the recruitment rules is that many of the posts are being held
by the retired persons engaged on contract basis. In other words, steps are
being taken by the State Government to phase out the contract
engagement. He has relied upon the decisions rendered by the Hon'ble
Supreme Court in Jasbhai Motibhai Desai Vs. Roshan Kumar, Bashir
Ahmed, (1976) 1 SCC 671; K.D Sharma Vs. Steel Authority of India &
ors, (2008) 12 SCC 481; (2012) 12 SCC 133 and V. Chandrashekharan
& anr Vs. Administrative Officer & ors, (2020) 12 SCC 87. Shri Kh.
Samarjit, learned Advocate appearing for some of the private respondents
submitted that he would adopt the arguments of the learned Advocate
General and Shri H. S Paonam, learned Senior Advocate. What he did,
was right, as he was required to supplement the arguments and not to
repeat the arguments made by them.
[11] Since the counsels appearing for the respondents have raised an
objection as regards the maintainability of the writ petitions, this Court
deems it appropriate to consider it first. It has been submitted by them that
the petitioners are the employees of the MSPCL/MSPDCL who are
governed by their norms. The private respondents have continued to be
the employees of the Electricity Department, Manipur and are governed by
the Recruitment Rules, 1986. The private respondents are being given
promotions by relaxation of the said recruitment rules without affecting the
rights of the petitioners and therefore, the petitioners have no locus standi
W.P.(C) No. 559 of 2020 & ors. Contd../-
to file the writ petitions. In support of their contentions, they have relied
upon the decisions rendered by the Hon'ble Supreme Court in Dr. N.C
Singhal Vs. Union of India & ors, (1980) 3 SCC 29; Scheduled Caste
Uplift union & anr Vs. Union of India & ors, 1995 Supp (3) SCC 526;
Rajesh Kagra & ors Vs. State of Madhya Pradesh 7 ors, (2010) 12 SCC
139; Jasbhai Motibhai Desai Vs. Rosham Kumar, Haji Bashir Ahmed &
ors, (1976) 1 SCC 671 and Shripal Bhatt & anr Vs. State of Uttar
Pradesh, (2020) 12 SCC 87. There can be no any dispute as regards the
law laid down by the Hon'ble Supreme Court in the above cases but their
facts and circumstances are not similar to that of the present case and
therefore, the law laid down therein will have no application to the facts of
the present case. In the present case, in terms of the provisions of Section
131 & 133 of the Electricity Act, 2003, the Transfer Scheme, 2013 was
made on the basis of which the personnel of the Electricity Department,
Manipur were/are on deputation to be absorbed permanently as prescribed
under Clause 5(9)(d) thereof. The transitory period as prescribed in Clause
5(9)(d) was three years which fell in the year, 2016 and immediately
thereafter, the absorption ought to have been completed which the State
Government failed to implement it. Had the absorption been done in the
year, 2016 itself, the personnel of the Electricity Department, Manipur
would have become the employees of the MSPCL/MSPDCL governed by
the law applicable to the petitioners. A combined seniority list for every
cadre of post could have been prepared in the MSPCL/MSPDCL and the
promotions could have been granted to them as per law applicable to
W.P.(C) No. 559 of 2020 & ors. Contd../-
them. In fact, the personnel of the Electricity Department, Manipur can be
said to be the employees of the MSPCL/MSPDCL for all practical purposes
except for their absorption which is a mere formality in terms of the
Transfer Scheme, 2013 for the reason that they are discharging their duties
and functions in the MSPCL/MSPDCL and have been placed under their
administrative and disciplinary jurisdiction. The petitioners and the private
respondents are similarly situated in the MSPCL/MSPDCL in their
respective rank and position under the administrative and disciplinary
jurisdiction of the MSPCL/MSPDCL. Both the employees of the MSPCL/
MSPDCL and the Electricity Department, Manipur are almost at par in all
aspects and even after the absorption of the personnel of the Electricity
Department, Manipur, they will be entitled to be considered for promotion,
for which their past services will be protected and will be taken into
account. After the Transfer Scheme, 2013 being given effect to on 01-02-
2014, any promotion given only to the personnel of the Electricity
Department, Manipur, who are ineligible for promotion, by relaxation of the
recruitment rules will have a serious and corresponding consequence
towards the rank and position thereby affecting the interest of the
petitioners and others in the MSPCL/MSPDCL at the time when the
personnel of the Electricity Department, Manipur are absorbed in the
MSPCL/MSPDCL and in other words, it will have a bearing on the interest
of the petitioners. Therefore, the contentions of the learned counsels
appearing for the respondents have no merit and the writ petitions are held
as maintainable.
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[12] In order to resolve the issues as formulated hereinabove, the
provisions of the Transfer Scheme, 2013 and in particular, the object
sought to be achieved by it, needs to be gone into and examined minutely
and the subsequent actions taken by the State Government will have to be
considered in the light of the provisions of the Article 14 of the Constitution
of India.
[13.1] The Electricity Act, 2003 was enacted by the Parliament with a
view to consolidate the laws relating to generation, transmission,
distribution, trading and use of electricity and generally for taking measures
conducive to development of electricity industry etc. and for matters
connected therewith or incidental thereto. In other words, the objective was
to enact a new legislation for regulating the electricity supply industry in the
country. Section 131 provides for vesting of properties of the State
Electricity Board in the State Government and for re-vesting thereof by the
State Government in a Government Company or any other company in
accordance with the transfer scheme. Section 133 provides for transfer of
the officers and the employees to the transferee on the vesting of
properties, rights and liabilities in such transfer as provided under Section
131. In order to give effect to the objects and purposes of the Act and in
exercise of the power conferred by Section 131 and 133, the State
Government made the Transfer Scheme, 2013 which came into force on
01-02-2014. As per Clause 4, on and from the effective date, the assets,
liabilities stood transferred to the MSPCL/MSPDCL, subject to the terms
and conditions mentioned in the Transfer Scheme, 2013, which should be
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responsible for all functions, contracts, rights, deeds etc. So far as the
personnel of the Electricity Department, Manipur are concerned, Clause
4(3) provides that their rights, responsibilities, liabilities and obligations and
matters relating to them including salary, wages etc., shall be dealt with in
the manner provided under Clause 5 of the Transfer Scheme, 2013.
[13.2] Clause 5 provides that on the effective date, the personnel of the
Electricity Department, Manipur shall stand deputed en masse in the
MSCPCL/MSPDCL. The Electricity Department, Manipur shall finalise the
deputation of its personnel and issue appropriate orders on or before the
effective date. Its personnel shall continue to be in service of the Electricity
Department, Manipur on the effective date and deputed to MSPCL/
MSPDCL in the post, scale of pay or seniority in accordance with the
orders that may be passed for this purpose. The State Government shall
constitute a committee within a month to receive representation as regards
any grievance relating to deployment of personnel to the MSPCL/MSPDCL
and shall be entitled to pass order on its recommendation. Its personnel
shall discharge the duties and functions assigned to them by the MSPCL/
MSPDCL which will have the power to exercise all administrative and
disciplinary powers and control over them as per the Transfer Scheme,
2013. The service conditions applicable to the personnel would continue to
be the same. Clause 5(9) provides that the transfer of the personnel shall
be subject to the conditions mentioned therein. On deputation to MSPCL/
MSPDCL, any matter regulating the service conditions shall be governed
and decided as per State Government's rules/ instructions. While on
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deputation, the personnel would continue in their substantive posts/
designations as far as their status in the Electricity Department, Manipur is
concerned and the new designations in the MSPCL/MSPDCL shall only be
for the functional roles. The personnel shall continue to be eligible for
promotions as per service conditions and rules of the State Government.
The promotions would be effected within the Electricity Department,
Manipur and pro-forma promotion would be provided. Upon completion of
three years from the effective date, the State Government shall provide an
option to the personnel to be permanently absorbed in the services of the
MSPCL/MSPDCL, whereupon the personnel who choose to exercise such
option, shall be permanently absorbed in the MSPCL/MSPDCL. The terms
and conditions offered to such absorbed personnel shall not be inferior to
the extent service condition applicable to them. On absorption, absorbed
personnel shall be governed by the rules, regulations and policies of the
MSPCL/MSPDCL. The personnel who will retire on deputation, shall be
recalled to the Electricity Department, Manipur before one/three months of
his retirement and shall retire from it. The pension and retirement benefits
payable to him would be in accordance with and commensurate with the
last pay and position held in the Electricity Department, Manipur before
retirement. The absorbed personnel shall be eligible for pensionable and
other terminal benefits on the basis of combined length of service rendered
by such personnel in the Electricity Department, Manipur and in the
respective MSPCL/MSPDCL in accordance with the formula prescribed for
calculation of such pensionary and other terminal benefits as may be
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applicable to the employee at the time of retirement from the MSPCL/
MSPDCL.
[14.1] Article 14 of the Constitution of India guarantees to any person
an equality before the law or the equal protection of the laws. Equal
protection means the right to equal treatment. The content of Article 14 was
originally interpreted by the Hon'ble Supreme Court as a concept of
equality confined to aspects of discrimination and classification but it got
expanded to comprehend the non-arbitrariness, reasonable, fair,
compliance with natural justice etc. In Ramana Dayaram Shetty Vs.
International Airport Authority & ors, (1979) 3 SCC 489, it has been
held by the Hon'ble Supreme Court that it is well settled as a result of the
decisions of this Court in E.P Royappa Vs. State of Tamil Nadu, (1974) 4
SCC 3 and Maneka Gandhi Vs. Union of India, (1978) 1 SCC 248 that
Article 14 strikes at arbitrariness in State action and ensures fairness and
equality of treatment. It requires that State act must not be arbitrary but
must be based on some rational and relevant principles which is non-
discriminatory: it must not be guided by any extraneous or irrelevant
considerations, because that would be denial of equality. The principles of
reasonableness and rationality which is legally as well as philosophically
an essential element of equality or non-arbitrariness is projected by Article
14 and it must characterise every State action, whether it be under
authority of law or in exercise of executive power without making of law.
The State cannot, therefore, act arbitrarily in entering into relationship,
contractual or otherwise with a third party, but its action must conform to
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some standard or norm which is rational and non-discriminatory. In Nelima
Mishra Vs. Harinder Kaur paintal & ors, (1990) 2 SCC 746, the Hon'ble
Supreme Court held:
"29.The Chancellor, however, has to act properly for the purpose
for which the power is conferred. He must take a decision in
accordance with the provisions of the Act and the statutes. He
must not be guided by the extraneous or irrelevant
considerations. He must not act illegally, irrationally or arbitrarily.
Any such illegal, irrational or arbitrary action or decision, whether
in the nature of a legislative, administrative or quasi-judicial
exercise of power is liable to be quashed being violative Article
14 of the Constitution. As stated in EP Royappa Vs. State of
Tamil Nadu (SCC p.38, para 85) "equality and arbitrariness are
sworn enemies; one belongs to the rule of law in a republic while
the other, to the whim and caprice of an absolute moranch". The
principle of equality enshrined in Article 14 must guide every
State action, whether it be legislative, executive, or quasi-judicial.
See Maneka Gandhi Vs. Union of India; Ajay Hasia Vs. Khalid
Mujib Sehravardi; Som Raj Vs. State of Haryana."
In Kumari Shrilekha Vidyarthi & ors. Vs. State of UP & ors.,
(1991) 1 SCC 212, wherein the question was as to whether the impugned
circular was amenable to judicial review and if yes, was it liable to be
quashed as violative of Article 14 of the Constitution of India being
arbitrary, the Hon'ble Supreme Court held:
35. It is now too well settled that every State action, in order to
survive, must not be susceptible to the vice of arbitrariness which
is the crux of Article 14 of the Constitution and basic to the rule
of law, the system which governs us. Arbitrariness is the very
negation of the rule of law. Satisfaction of this basic test in every
State action is sine qua non to its validity and in this respect, the
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State cannot claim comparison with a private individual even in
the field of contract. This distinction between the State and a
private individual in the field of contract has to be borne in the
mind.
There is no need of multiplying the decisions but In Sri Ram
Builders Vs. State of Madhya Pradesh & ors., (2014) 14 SCC 102, the
Hon'ble Supreme Court considered the issues relating to contract and held:
"58. In the ultimate analysis, the whole controversy boils down to
a breach of contract by M.P. RTC entered into with the appellant.
The scope of judicial review is very limited in contractual matters
even where one of the contracting parties is the State or an
instrumentality of the State. The parameters within which power
of judicial review can be exercised, has been authoritatively laid
down by this Court in a number of cases.
59. In Tata Cellular v. Union of India this Court upon detailed
consideration of the parameters within which judicial review
could be exercised, has culled out the following principles: (SCC
pp. 675 & 677, paras 70 & 77)
"70. It cannot be denied that the principles of judicial review
would apply to the exercise of contractual powers by
Government bodies in order to prevent arbitrariness or
favouritism. However, it must be clearly stated that there are
inherent limitations in exercise of that power of judicial review.
The Government is the guardian of the finances of the State. It is
expected to protect the financial interest of the State. The right to
refuse the lowest or any other tender is always available to the
Government. But, the principles laid down in Article 14 of the
Constitution have to be kept in view while accepting or refusing a
tender. There can be no question of infringement of Article 14 if
the Government tries to get the best person or the best
quotation. The right to choose cannot be considered to be an
arbitrary power. Of course, if the said power is exercised for any
collateral purpose the exercise of that power will be struck down.
W.P.(C) No. 559 of 2020 & ors. Contd../-
77. The duty of the court is to confine itself to the question of
legality. Its concern should be:
(1) whether a decision-making authority exceeded its powers?
(2) committed an error of law, (3) committed a breach of the
rules of natural justice, (4) reached a decision which no
reasonable tribunal would have reached, or (5) abused its
powers.
Therefore, it is not for the court to determine whether a particular
policy or particular decision taken in the fulfilment of that policy is
fair. It is only concerned with the manner in which those
decisions have been taken. The extent of the duty to act fairly
will vary from case to case. Shortly put, the grounds upon which
an administrative action is subject to control by judicial review
can be classified as under:
(i) Illegality: This means the decision-maker must understand
correctly the law that regulates his decision making power and
must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out
addition of further grounds in course of time."
60. In our opinion, the case put forward by the appellant would
not be covered by the aforesaid ratio of law laid down by this
Court. The High Court, in our opinion, has rightly observed that
the appellant can seek the appropriate relief by way of a civil
suit. The High Court in exercise of its jurisdiction under Article
226 of the Constitution of India would not normally grant the
relief of specific performance of a contract. This view is
supported by Ramchandra Murarilal Bhattad v. State of
Maharashtra. This Court relying upon the earlier decision in
Noble Resources Ltd. v. State of Orissa held as under:
(Ramchandra Murarilal Bhattad case, SCC p. 607, paras 5051)
"50. ... this Court would not enforce specific performance of
contract where damages would be adequate remedy. It was also
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held that conduct of the parties would also play an important
role.
51. The expansive role of courts in exercising its power of judicial
review is not in dispute. But as indicated hereinbefore, each case
must be decided on its own facts."
It is well settled that the decision making process of the State
should be transparent, fair and open. Reasonableness and fairness is the
heart and soul of the Article 14 of the Constitution of India. In other words,
the Government ought to act fairly and reasonably. Article 14 strikes at the
root of any kind of unreasonable and arbitrary actions of the State or its
instrumentalists. In a catena of decisions including the abovementioned,
the Hon'ble Supreme Court has held that an order passed by a public
authority exercising administrative/ executive or statutory powers must be
judged by the reasons stated in the order or any record or file
contemporaneously maintained. The State action must be supported by
some valid reasons and should be upon due application of mind. It has to
be examined whether the Government had given sufficient reasons for the
order it passed, at the time of passing the order. The Government does not
have a carte blanche to take any decision it chooses to; it cannot take a
capricious, arbitrary or prejudiced decision. It must be informed and
impregnated with reasons. It is thus seen that even in matters relating to
contracts or commercial transactions, the Government ought to act fairly
and reasonably and the High Court can entertain a writ petition on the
ground of violation of Article 14 of the Constitution when the impugned act
of the State or its instrumentality is arbitrary, unfair or unreasonable or in
W.P.(C) No. 559 of 2020 & ors. Contd../-
breach of obligations under public law. The only exception is that while
exercising the power conferred under Article 226 of the Constitution, the
larger public interest shall always be kept in view by the High Court.
[15] As regards the first issue, admittedly the Transfer Scheme, 2013
was made in terms of Section 131 and 133 of the Electricity Act, 2003, the
object sought to be achieved by it is to transfer all assets and liabilities and
the personnel of the Electricity Department, Manipur to the Government
companies, the MSPCL/MSPDCL so that they should take the
responsibilities of transmission, generation, distribution etc. of electricity in
the State. In the present cases, this Court is concerned with the subject
matter in issue which relates to the transfer of personnel of the Electricity
Department, Manipur and the manner in which they should have been
transferred/ shall be transferred to the said MSPCL/MSPDCL. The
procedure prescribed in the Transfer Scheme, 2013 is that all the
personnel of the Electricity Department, Manipur except few to be retained
for administrative purpose, will stand deputed en-mass to the MSPCL/
MSPDCL, which the State Government had, in fact, done it as part of the
implementation of the Transfer Scheme, 2013 and that they will stand
absorbed permanently thereafter. It is a matter of time that the personnel of
the Electricity Department, Manipur are bound to be the employees of the
MSCPCL/MSPDCL which is indispensable. It is not in dispute that after the
provisions of the Transfer Scheme, 2013 being implemented fully by the
State Government, the Electricity Department, Manipur or for that matter,
the Power Department will remain only to be an Administrative Department
W.P.(C) No. 559 of 2020 & ors. Contd../-
with limited staff and the duties and functions to be performed and
discharged by its employees as regards the transmission, generation,
distribution etc. will stand uprooted therefrom. In other words, the services
of the personnel will no longer be required in the Electricity Department,
Manipur for the reason that the duties and functions to be performed and
discharged by them are not to be left behind at all. The general conditions
for transfer of personnel are enumerated in Clause 5 of the Transfer
Scheme, 2013 and such transfer shall be subject to the conditions
mentioned in sub-clause (9) thereof. The provisions of Clause 5 are to be
read as a whole and in short, the rights and interest which were enjoyed by
the personnel in the Electricity Department, Manipur, would continue to be
enjoyed by them. The corollary issue that arises, at this juncture, is as to
when the transfer of the personnel was to be completed or will have to be
completed by the State Government. The answer is available at Clause
5(9)(d) of the Transfer Scheme, 2013 which provides for three years as the
transitory period. In other words, the transitory period is three years, during
which the State Government ought to have taken the requisite and
appropriate actions so that upon completion of three years, the State
Government could have provided option to them to be permanently
absorbed in the services of the MSPCL/MSPDCL. After the option being
exercised by the personnel, they could have been absorbed permanently
as the employees of the MSPCL/MSPDCL by then so that the personnel of
the Electricity Department, Manipur and the employees of the MSPCL/
MSPDCL could have been brought under one umbrella, in the sense that
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they could have been brought at par, depending upon their existing ranks
and positions, governed by the law applicable to the employees of the
MSPCL/MSPDCL. In fact, the process of absorption ought to have been
completed immediately after the expiry of three years. But the State
Government had failed to implement the provisions of Clause 5 (9)(d) with
the result that the personnel of the Electricity Department, Manipur, who
should have become the employees of the MSPCL/MSPDCL on their
absorption, were allowed to continue to be its personnel technically without
the duties and functions to be performed and discharged by them in the
Electricity Department, Manipur because they had/ have been discharging
their duties in the MSPCL/MSPDCL after their posts being re-designated
as the Manager/ Deputy General Manager/ General Manager etc. On the
one hand, the State Government failed to take appropriate action for
absorption of its personnel in the MSPCL/MSPDCL as prescribed in the
Transfer Scheme, 2013 and on the other hand, it granted promotions to its
personnel who were/ are ineligible for promotion, by relaxation of the
eligibility criteria for promotion. In other words, the undue advantages had
been/ are being given to its personnel so that as and when they are
absorbed in the MSPCL/MSPDCL, they will be put in an advantageous
position. This sort of action taken by the State Government without taking
into account the problems that may arise in future in the MSPCL/MSPDCL
at the time of preparing the seniority list, is highly unfair and unreasonable.
The failure on the part of the State Government in implementing Clause
5(9)(d) is contrary to the provisions of Section 133 of the Electricity Act,
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2003 and in other words, it has defeated the very object sought to be
achieved by it. In addition thereto, the non-implementation of Clause
5(9)(d) for more than four years from the effective date which is quite unfair
and unreasonable, has led to the present controversy. If the issue is not
resolved today, it will open a floodgate of litigations in future. The non-
implementation of Clause 5(9)(d) by the State Government has rendered
the Transfer Scheme, 2013 inconsequential and meaningless. Any action
taken by the State Government after the Transfer Scheme, 2013 being
given effect to on 01-02-2014, towards granting undue advantage to its
personnel except for their absorption, is bad in law. Nothing is required to
be done by the State Government except in respect of absorption of its
personnel. The averment made in the affidavit filed on behalf of the State
Government that the absorption policy will be implemented, as and when
the financial conditions of the State Government improve, is absolutely
untenable. It is nowhere provided in the Transfer Scheme, 2013 that the
absorption shall be done by the State Government, only when the money is
available with it. The Transfer Scheme, 2013 is itself its policy decision
which has not been questioned by anyone and therefore, it will have to be
implemented by the State Government in its letter and spirit, the non-
implementation of which, in the midst of implementation, is unfair and
unreasonable. It is a different matter, if the State Government takes a
decision to withdraw the Transfer Scheme, 2013. Assuming for the sake of
argument that the implementation of the Transfer Scheme, 2013 involves
huge amount towards absorption of its personnel, the State Government
W.P.(C) No. 559 of 2020 & ors. Contd../-
could have thought of various means to arrange the amount. A period of
seven years from the effective date cannot be said to be a short time for
doing the needful. The amount allocated in the budget of the Electricity
Department, Manipur for the payment of salary to its personnel, could have
been transferred to the MSPCL/MCPDCL as a part of the implementation
of the Transfer Scheme, 2013 which the State Government utterly failed to
do it. As has been held by the Hon'ble Supreme Court in the decisions
relied upon by the counsel appearing for the petitioners, the financial
difficulties cannot be a ground for violating fundamental rights. Therefore,
the first issue is answered in the affirmative.
[16] As has been observed hereinabove, on account of the failure of
the State Government to implement the provisions of Clause 6(9)(d) of the
Transfer Scheme, 2013, the personnel of the Electricity Department,
Manipur do remain technically continued to be its employees and taking
advantage thereof, various actions have been taken by the State
Government towards the relaxation of the Recruitment Rules, 1986 and the
promotions being given to its employees. Undue advantages have been
granted to the personnel of the Electricity Department, Manipur. Such
actions which are contrary to the object sought to be achieved by the
Transfer Scheme, 2013 itself, are unreasonable, unfair and illegal for the
following facts and circumstances:
(a) The Transfer Scheme, 2013 envisage that the personnel of the
Electricity Department, Manipur ought to be deputed en mass to
the MSPCL/MSPDCL and be absorbed permanently after their
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option being exercised by them. In other words, the employees
of the Electricity Department, Manipur should stand merged with
the employees of the MSPCL/MSPDCL to be governed by the
law applicable to their employees. As the word "shall" being
used in Clause 5(9)(d), the absorption which is mandatory, is to
be done immediately after three years from the effective date ie.,
01-02-2014. The exercise of option by the personnel of the
Electricity Department, Manipur is a mere formality for the
reason that none of them could say "no' to absorption except
offering for voluntary retirement or facing compulsory retirement
being imposed by the State Government;
(b) The personnel of the Electricity Department, Manipur are
governed by the provisions of the Recruitment Rules, 1986
which appear to have not been quashed and set aside by any
order of the Court. The Recruitment Rules, 1986 and its
application will come to an end and remain inapplicable to the
personnel of the Electricity Department, Manipur as and when
they are absorbed permanently in the MSPCL/MSPCL in terms
of the procedure prescribed in Clause 5(9)(d) of the Transfer
scheme, 2013. Since the transitory period as prescribed in
Clause 5(9)(d) is three years, the application of the Recruitment
Rules, 1986 ought to have been allowed to continue for three
years only from 01-02-2014 but due to non-implementation of
Clause 5(9)(d), the Recruitment Rules, 1986 have remained in
W.P.(C) No. 559 of 2020 & ors. Contd../-
operation. Had the personnel of the Electricity Department,
Manipur been absorbed immediately after the expiry of the
period of three years, the need of continuing operation of the
Recruitment Rules, 1986 would not have arisen and such actions
as impugned herein ought not to have been taken by the State
Government;
(c) The transitory period of three is prescribed in the Transfer
Scheme, 2013 itself and therefore, it is incumbent upon the State
Government to follow it. During this transitory period of three
years, the eligible personnel of the Electricity Department,
Manipur could have been considered and granted promotions
which would not have affected the interest of anyone or for that
matter, the petitioners. But it had not been done so by the State
Government and on the contrary, the State Government issued a
Notification dated 08-01-2018 amending the Recruitment Rules
by relaxation of the eligibility criteria as one time measure which
was valid till 31-10-2018, followed by an order dated 30-01-2018
appointing as many as 22 Assistant Engineers on promotion to
the post of Executive Engineer on the basis of the said one time
relaxation. Similarly, a Notification dated 25-02-2019 was issued
amending the Recruitment Rules by relaxation of the eligibility
criteria as one time relaxation which was valid for three months,
followed by an order dated 27-02-2019 appointing as many as 4
Assistant Engineers on promotion to the post of Executive
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Engineer on the basis of the said one time relaxation. In respect
of the post of the Assistant Engineer as well, a Notification dated
24-02-2018 was issued amending the Recruitment Rules
regarding the method of recruitment as "100%" by promotion in
place of "60%" by promotion as one time relaxation which was
valid till 31-03-2018, followed by an order dated 27-02-2018
appointing as many as 42 Section Officer Grade-I on promotion
to the post of the Assistant Engineer on the basis of the one-time
measure. These actions are taken by the State Government to
fabour its personnel/ employees and when they are absorbed,
they will be in an advantageous position. There is a likelihood of
the personnel of the Electricity Department, Manipur being
absorbed in the higher rank which will lead to heart burning
amongst the employees of the MSPCL/MSPDCL;
(d) The reasons as to why the recruitment rues are required to be
amended and promotions given pursuant thereto, are nowhere
stated either in the Notifications or in the appointment orders. In
the affidavit filed on behalf of the State Government, it has been
stated that since the personnel of the Electricity Department,
Manipur have been serving for so many years and are on the
verge of retirement, they are being given promotions by
relaxation of the recruitment rules. The stand of the private
respondents as submitted by their counsel, is that they are being
given promotions by relaxation of the recruitment rules in order
W.P.(C) No. 559 of 2020 & ors. Contd../-
to phase out the retired contract employees. What is the object
sought to be achieved by granting promotions to the personnel of
the Electricity Department, Manipur and that too, by relaxation of
the eligibility criteria. What is the nexus between the object
sought to be achieved and the action taken by the State
Government towards promotion. What is the need of granting
promotions to the ineligible persons by relaxation of the eligibility
criteria before they are being absorbed in the MSPCL/MSPDCL.
No materials have been placed on record by the State
Government to answer these questions. The reasons assigned
in the affidavits which are not cogent, are indicative of the fact
that the State Government wishes to favour its personnel before
they are being absorbed in the MSPCL/MSPDCL. That is the
reason why the promotions are given hurriedly to its personnel
so that they will get advantage over the employees of the
MSPCL/MSPDCL after their absorption. In fact, the personnel of
the Electricity department, Manipur are entitled to be considered
for promotion even after their absorption in the MSPCL/
MSPDCL which cannot be denied to them. Their past services
are protected and are to be taken into account at the time of
consideration for promotion. In view of the law laid down by the
Hon'ble Supreme Court that the principle of equality enshrined in
Article 14 must guide every State action, whether it be
legislative, executive, or quasi-judicial, the grant of promotion to
W.P.(C) No. 559 of 2020 & ors. Contd../-
the personnel of the Electricity Department, Manipur by
relaxation of the eligibility criteria without any rational, is arbitrary
and malafide being violative of Article 14 of the Constitution;
(e) Article 309 empowers the Union as well as the States to enact
laws regulating recruitment and conditions of service appointed
to public service and posts. However, this exercise of power is
subject to other provisions of the Constitution including the
fundamental rights. Pending any legislation either by the Union
or any State, the President or the Governor, as the case may be,
is competent to make rules for the aforesaid purpose. In the
present case, the aforesaid Notifications amending the existing
Recruitment Rules, 1986 are stated to have been issued in
exercise of power conferred by the proviso to Article 309 of the
Constitution of India. But it may be noted that any policy decision
taken by the State Government cannot be said to be valid in all
cases and it cannot be interfered by the Court. The validity and
correctness of such notifications is amenable/ susceptible to
judicial review, if it is arbitrary, irrational and malafide being
violative of Article 14 of the Constitution of India;
(f) If the personnel of the Electricity Department, Manipur will not
have to be absorbed in the MSPCL/MSPDCL in terms of the
Transfer Scheme, 2013, it is the domain of the State
Government to take any policy decision and take appropriate
action accordingly for its personnel including grant of promotion
W.P.(C) No. 559 of 2020 & ors. Contd../-
in accordance with law which will have no bearing on the interest
of the employee of the MSPCL/MSPDCL. In other words, the
State Government can do anything for the benefit of its
employees in accordance with law. The present case is not the
one where such thing can be done by the State Government.
The intent of the Transfer Scheme, 2013 is that they will stand
absorbed in the MSPCL/MSPDCL permanently and become
their employees forming common cadres in the posts of the
Manager, Deputy General Manager, General Manager etc. They
are already in the pipeline, in the sense that they are, now, on
deputation for being absorbed in the MSPCL/MSPDCL and
cannot go back to the Electricity Department, Manipur from
where the duties and functions to be discharged by them had
already been uprooted. In such circumstances, the grant of
promotion to its personnel who are ineligible, by relaxation of
eligible criteria, cannot be said to be a policy decision which is
free from arbitrariness or irrational. In other words, the grant of
promotions to them by the State Government taking advantage
of its own failure to implement Clause 5(9)(d) in the year, 2016
and when its personnel having discontinued discharging their
duties and functions in the Electricity Department, Manipur, is
highly unreasonable and unfair;
(g) The Transfer Scheme, 2013 do not contemplate separate cadres
in the MSPCL/ MSPDCL-one, for the personnel of the Electricity
W.P.(C) No. 559 of 2020 & ors. Contd../-
Department, Manipur who are yet to be absorbed and two, for
the employees directly recruited in the MSPCL/MSPDCL. Only
common cadres are contemplated depending upon the rank and
position that they held, who will be governed by the same law.
No posts can be reserved separately for the personnel of the
Electricity Department, Manipur and the employees directly
recruited in the MSPCL/MSPDCL as is being normally/ usually
done in respect of the direct recruits and the promotes. The
intent of the Transfer Scheme, 2013 is that both the employees
shall stand merged into common cadre with the protection of the
past services of the personnel of the Electricity Department,
Manipur which shall be taken into account while finalsing the
seniority list and for grant of promotion. There cannot be two
parallel groups of employees in the MSPCL/MSPDCL, in respect
of one cadre of a post, discharging the same duties and
functions, as is evident from the Transfer Scheme, 2013 in the
sense that there cannot be two set of norms applicable to the
employees discharging the same duties and functions.
Therefore, the earmarking of promotional posts vide letter dated
18-11-2020-one, for the personnel of the Electricity, Manipur and
two, for the employees of the MSPCL/MSPDCL, is unreasonable
and impermissible in law. The reservation is permissible only in
accordance with the law relating to reservation.
W.P.(C) No. 559 of 2020 & ors. Contd../-
[17] One point which the learned Advocate General has emphasised,
is that the aforesaid actions towards the relaxation of the recruitment rules
and the grant promotions to the employees of the Electricity Department,
Manipur have been taken by the State Government pursuant to its policy
decision and therefore, this Court shall not interfere with them, for which he
has relied upon the decision rendered by the Hon'ble Supreme Court in
Choudhury Ran Beer Singh (supra) wherein it has been held by the
Hon'ble Supreme Court that in matter of policy decision or exercise of
discretion by the Government so long as the infringement of fundamental
right is not shown, the Court will have no occasion to interfere and the
Court will not and should not substitute its own judgment for the judgment
of the executive in such matters. In Paisons Agrotech (P) Ltd.(supra), the
Hon'ble Supreme Court held:
"14. Considering the entire facts of the case vis-à-vis the
Government Resolution time issued relating to the condition for
giving benefit of promotion, we are of the view that the reasons
assigned by the learned Single Judge and the Division Bench of
the High Court cannot be sustained in law. Hence, this appeal is
allowed and the impugned order passed by the High Court is set
aside. Consequently, it is held that the appellant is entitled to the
higher pay scale on completion of nine years of service."
Similar is the case with Essar Steel Ltd. (supra) wherein the
Hon'ble Supreme Court held:
"49. A perusal of the abovementioned judgments of this Court
would show that this Court should exercise great caution and
restraint when confronted with matters related to the policy
regarding commercial matters of the country. Executive policies
are usually enacted after much deliberation by the Government.
W.P.(C) No. 559 of 2020 & ors. Contd../-
Therefore, it would not be appropriate for this Court to question
the wisdom of the same, unless it is demonstrated by the
aggrieved persons that the said policy has been enacted in an
arbitrary, unreasonable or mala fide manner, or that it offends
that provisions of the Constitution of India."
In Dilip Kumar Garg & anr. Vs. State of Uttar Pradesh & ors.,
(2009) 4 SCC 753 when the validity of Rule 5(ii) of the Rules, 2004 was
questioned on the ground of violation of Article 14 of the Constitution of
India, the Hon'ble Supreme Court held :
"15. In our opinion Article 14 should not be stretched too far,
otherwise it will make the functioning of the administration
impossible. The administrative authorities are in the best position
to decide the requisite qualifications for promotion from Junior
Engineer to Assistant Engineer, and it is not for this Court to sit
over their decision like a court of appeal. The administrative
authorities have experience in administration, and the Court
must respect this, and should not interfere readily with
administrative decisions. (See Union of India v. Pushpa Rani and
Official Liquidator v. Dayanand.)
16. The decision to treat all Junior Engineers, whether degree-
holders or diploma-holders, as equals for the purpose of
promotion is a policy decision, and it is well settled that this Court
should not ordinarily interfere in policy decisions unless there is
clear violation of some constitutional provision or the statute. We
find no such violation in this case.
17. In Tata Cellular v. Union of India it has been held that there
should be judicial restraint in administrative decision. This
principle will apply all the more to a rule under Article 309 of the
Constitution."
From the decisions relied upon by the counsels appearing for the
respondents, it is absolutely clear that the interference by the Court in
W.P.(C) No. 559 of 2020 & ors. Contd../-
matters relating to policy decision is very limited but an exception has
always been carved out in the decisions of the Hon'ble Supreme Court to
the effect that such a policy decision can be interfered with by the Court, if
it is unfair, unreasonable, discriminatory and malafide being violative of
Article 14 of the Constitution of India and is not taken in public interest. It
may be noted that the policy decision shall be taken by the State
Government in public interest. What is the object sought to be achieved by
the policy decision of the State Government by relaxation of the
Recruitment Rules, 1986 and subsequent actions taken by it granting
promotion to its ineligible personnel. Is it for the enhancement of the
performance or skill ? Is it a reward for their good performance in the past ?
Whatever may be the reason, the grant of promotion to ineligible persons
by relaxation of the eligibility criteria cannot be said for it. The Transfer
Scheme, 2013 had already been made by the State Government in terms
of the provisions of the Electricity Act, 2003 by which the personnel of the
Electricity Department, Manipur have to be absorbed in the MPDCL/
MSPDCL in terms of Clause 5(9)(d) which provides for the transitory period
of three years. The personnel of the Electricity Department, Manipur are
already on deputation in the MSPCL/MSPDCL as a part of the transitory
process and they have been designated as the Manager (Elect), Deputy
General (Elect), General Manager (Elect) etc., as the case may be,
discharging the same duties and functions as that of the petitioners and
other employees of the MPDCL/MSPDCL. After the personnel of the
Electricity Department, Manipur being absorbed permanently, they will
W.P.(C) No. 559 of 2020 & ors. Contd../-
become the employees of the MPDCL/MSPDCL governed by the same set
of norms. The expression "public interest" does not mean the interest of
the personnel of the Electricity Department, Manipur only. It does definitely
mean the interest of all including that of the employees of the MSPCL/
MSPDCL for the reason that the personnel of the Electricity Department,
Manipur, after the Transfer Scheme, 2013 being implemented partly, are
already working in the MSPCL/MSPDCL on deputation in the transitory
period for their absorption permanently. They are not, at present,
discharging their duties and functions in the Electricity Department,
Manipur and in other words, they have no duties and functions to be
discharged in the Electricity Department, Manipur but for the failure on the
part of the State Government, they are technically continued to be the
personnel of the Electricity Department, Manipur. Had the provisions of
Clause 5(9)(d) been implemented in the year, 2016 itself, they would have
become the employees of the MSPCL/MSPDCL then and there and the
appropriate actions could have been taken by the authorities concerned for
granting promotions to them as per law applicable to them. This is what is
contemplated in the Transfer Scheme, 2013 which is nothing but a scheme
made by the State Government by way of a policy decision in terms of the
provisions of the Electricity Act, 2003. Any action taken by the State
Government after the expiry of the three years as prescribed in Clause
5(9)(d) granting undue advantage to its personnel only and that too, with
the relaxation of the Recruitment Rules, 1986 will be rendered unfair and
unreasonable being violative of Article 14 and 16 of the Constitution of
W.P.(C) No. 559 of 2020 & ors. Contd../-
India. It will have a bearing on the interest of the employees of the MSPCL/
MSPDCL. For example, as many as 23 persons were appointed as the
Managers (Elect) in the MSPDCL vide order dated 30-10-2014 on the
recommendation of the MPSC, while 13 Section Officer Grade-I, Electricity
Department, Manipur were appointed on promotion to the post of Assistant
Engineer vide order dated 27-01-2015. These 13 Assistant Engineers
were, at the relevant time, working in the MSPCL/MSPDCL as juniors after
their being designated as the Managers (Elect). It may be noted that the
said 23 Managers (Elect) were appointed earlier in point of time than the
13 assistant Engineers. However, out of the said 13 Assistant Engineers, 5
Assistant Engineers were further promoted to the next higher post of the
Executive Engineers vide order dated 30-01-2018 after the relaxation of
the Recruitment Rules, 1986 and they were designated as the Deputy
General Manager (Elect) in the MSPDCL vide order dated 24-04-2018. The
question is as to what will happen to the interest of the said 23 Managers
(Elect), when the said 5 Executive Engineers who were juniors to them at
the level of the Manager (Elect), were absorbed in the MSPDCL as the
Deputy General Manager (Elect). Can their interest be protected in any
manner ?. It will definitely cause hear-burning amongst the employees of
the MSPCL/MSPDCL which may prompt them to approach the Court for
redressal of their grievances, when the combined seniority is published.
This sort of heart-burning may affect the proper and effective functioning of
the MSPCL/MSPDCL, thereby ultimately affecting the transmission, supply
etc. of electricity to the general public. In order to provide undue advantage
W.P.(C) No. 559 of 2020 & ors. Contd../-
to its own personnel, the State Government has created/ is going to create
further problem for others which is quite unreasonable, arbitrary as the
State Government ought to act fairly and reasonably. It may be noted that
any policy decision taken by the State Government can be tested on the
touchstone of Article 14 of the Constitution, if it is unfair, unreasonable and
arbitrary. From the stand indicated in the affidavit filed on behalf of the
State Government, it is seen that the State Government appears to have
proceeded on the footing that the legal rights of the petitioners are not
affected but it appears to have forgotten that any executive action including
a policy decision, is amenable to judicial review, if it is unfair and
unreasonable and it will definitely attract the provisions of Article 14 of the
Constitution of India which is a fundamental right guaranteed to any
person.
[18] In view of the above and for the reasons stated hereinabove, the
above writ petitions stand disposed of with the following directions:
(a) The respondent No.2, the Commissioner/ Secretary (DP),
Government of Manipur shall recall/ cancel the Notifications
dated 08-01-2018; dated 24-02-2018; dated 25-02-2019 and
dated 02-01-2021 towards the relaxation of the Recruitment
Rules, 1986 on or before 05-03-2021;
(b) The respondent No.1, the Commissioner (Power), Government of
Manipur shall recall/ cancel the order dated 30-01-2018
appointing 22 Assistant Engineers on promotion to the post of
Executive Engineer; order dated 27-02-2018 appointing as many
W.P.(C) No. 559 of 2020 & ors. Contd../-
as 42 Section Officer Grade-I on promotion to the post of the
Assistant Engineer; order dated 27-02-2019 appointing 4
Assistant Engineer on promotion to the post of the Executive
Engineer and the letter dated 18-11-2018 or any other order/
letter issued by its Department after the expiry of three years
from 01-02-2014 on which the Transfer Scheme, 2013 came into
force, on or before 05-03-2021;
(c) The respondent No.1, the Commissioner (Power), Government of
Manipur shall implement Clause 5(9)(d) of the Transfer Scheme,
2013 as quickly as possible, for which it shall provide option to its
personnel/ employees, within twenty-one days from the date of
receipt of a copy of this judgment and order, to be exercised by
them within seven days thereafter. After the expiry of the total
days of twenty-eight days as mentioned above, the respondent
No.1 shall take decisions for absorption of its personnel as the
employees of the MSPCL/MSPDCL;
(d) After the personnel of the Electricity Department, Manipur are
absorbed in the MSPCL/MSPDCL as per the direction (c) above,
the authorities concerned of the MSPCL/MSPDCL shall prepare
combined seniority lists of all cadres for the posts of Manager
(Elect); Deputy General Manager (Elect), General Manager
(Elect) etc. within a month therefrom taking into account the past
services rendered by the personnel of the Electricity Department,
Manipur in terms of the Transfer Scheme, 2013 and shall take,
W.P.(C) No. 559 of 2020 & ors. Contd../-
immediately thereafter, appropriate actions for holding DPCs for
the purpose of their promotions to their respective higher posts.
JUDGE
FR/NFR
Dhekeshori
Yumk Digitally signed
by Yumkham
Rother
ham Date:
2021.02.05
Rother 16:03:46
+05'30'
W.P.(C) No. 559 of 2020 & ors. Contd../-
