Manipur High Court
Naorem Saratchandra Singh vs The Manipur Public Service ... on 23 August, 2022
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KABOR Digitally
by
signed
AMBAM KABORAMBAM
LARSON
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
LARSON Date: 2022.08.26
13:58:01 +05'30'
W.P.(C) No.299 of 2022
1. Naorem Saratchandra Singh, aged about 58 Years, S/O (L)
N. Rajmani Singh, resident of Sagolband Khamnam Leirak,
P.O. Imphal, P.S. Lamphel, Imphal West District, Manipur.
PIN : 795001.
2. Thangjam Loken Singh, aged about 55 Years, S/O ( L ) Th.
Babu Singh, resident of Awang Sekmai Koujeng Leima, P.O.
& P.S. Sekmai, Imphal West District, Manipur. PIN: 795136.
....... Petitioner/s
- Versus -
1. The Manipur Public Service Commission through its
Secretary, having its office at North AOC, P.O. & P.S.
Imphal, Imphal West District, Manipur. PIN : 795001.
2. The State of Manipur through its Commissioner ( Works )
Government of Manipur, having its office at Old Secretariat
Building, Babupara, P.O. & P.S. Imphal, Imphal West
District, Manipur.
.... Respondent/s
W.P.(C) No.299 of 2022
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3. N. Rabi Singh aged about 55 Years, resident of Kakching
Wairi Senapati Leikai, P.O. & P.S. Kakching, Kakching
District, Manipur, PIN : 795103.
4. N. Imocha Singh aged about 56 Years, resident of
Thangmeiband Yumnam Leikai, P.O. & P.S. Imphal, Imphal
West District, Manipur. PIN: 795001.
5. M. Thangpei, aged about 56 Years, resident of Ukhrul
Alungtang below Phungjoi Church, P.O. & P.S. Ukhrul,
Ukhrul District, Manipur: PIN : 795142.
6. N. Jamandar Singh, aged about 56 Years, resident of
Naharup Awang Leikai, P.O. & P.S. Porompat, Imphal East
District, Manipur: 795008.
7. Leivon Neilenthang Kom, aged about 57 Years, resident of
Upper Kom Keirap, Loktak Project, P.O. & P.S. Loktak
Project, Churchandpur District, Manipur : PIN :795124.
8. Joyson Raleng aged about 57 Years, resident of Viewlannd
Zone - II, P.O. & P.S. Ukhrul, Ukhrul District, Manipur,
PIN: 795142.
.... Private Respondent/s
W.P.(C) No.299 of 2022
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BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioners : Mr. M. Devananda, Adv.
For the Respondents : Mr. RS Reisang, Sr. Adv. for MPSC
Mr. H. Samarjit, GA
Date of Hearing : 26.07.2022.
Date of Judgment & Order : 23.08.2022.
JUDGMENT & ORDER
(CAV)
This writ petition has been filed by the petitioners to set aside
the impugned Departmental Promotion Committee held on 12.01.2022
against the 8 anticipated vacancies for the post of Executive Engineer and
promotion order dated 13.4.2022 and to direct the first respondent to
recommend the petitioners for promotion to the post of Executive Engineer
against the remaining two anticipated vacancies which the Manipur Public
Service Commission (MPSC) failed to recommend the eligible candidates in
the DPC held on 12.01.2022.
W.P.(C) No.299 of 2022
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[2] The case of the petitioners is that they are now serving in the
substantive post of Assistant Engineer, but holding the feeder post for
promotion to the post of regular Executive Engineer in the Public Works
Department, Manipur and discharging as in-charge Executive Engineer.
The Works Department furnished eligible candidates and its integrity
certificate along with seniority to the MPSC for holding DPC for
appointment by promotion to the post of Executive Engineer for 34 clear
vacancies and 8 anticipated vacancies of the Executive Engineer. The
MPSC held the DPC on 12.01.2022 by recommending 32 Assistant
Engineers by promotion to the post of Executive Engineer in Works
Department against clear vacancies keeping two post as vacant for
Sominthang Singson and Munindro Mangang as both are kept in sealed
cover as their integrity are withheld.
[3] In the DPC held on 5.2.2022, it is clearly stated that the year
of vacancy for the year 2021-22 is 8 anticipated vacancies, whereas in the
recommendation made by the MPSC for appointment of promotion to the
post of Executive Engineer is 6 against 8 anticipated vacancies and the
MPSC has not recommended the petitioners for promotion to the post of
W.P.(C) No.299 of 2022
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Executive Engineer as both of them are eligible and within the zone of
consideration, which is arbitrary, malafide and discrimination to the
petitioners for violation of Articles 14 and 16(1) of the Constitution of India
by leaving the petitioners against the two unfilled vacancies of the
anticipated.
[4] Resisting the writ petition, the first respondent filed affidavit-
in-opposition stating that the petitioners were considered, but could not be
recommended for promotion to the post of Executive Engineer, as they
were not in the zone of consideration. It is stated that there is no direct
provision for 34 clear vacancies and as such in regard to 34 vacancies the
DPC had considered upto Serial Nos.62 under the normal zone of
consideration. The names of the petitioners appeared at Serial Nos.63
and 65 in the inter-se seniority list of Assistant Engineer (Civil) for which
they could not be recommended for promotion to the post of Executive
Engineer (PWD). Hence, prayed for dismissal of the writ petition.
[5] Assailing the impugned order, Mr. M. Devananda, the learned
counsel for the petitioners submitted that the MPSC failed to recommend
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the petitioners against the anticipated vacancies as both the petitioners are
above the bench marks in the ACRS and there was no adverse remarks
against them. Thus, the non-consideration of the petitioners by the MPSC
is totally in violation of the fundamental rights.
[6] The learned counsel further submitted that the MPSC acted by
pick and choose without applying its mind. Hence, the recommendation of
the private respondents against the 8 anticipated vacancies is illegal and
arbitrary. He submits that the proceedings of the DPC held on 12.01.2022
failed to exercise its jurisdiction and duty assigned to it to consider the
material facts. As such, the same is illegal and arbitrary and not
maintainable in regard to the filling up of 8 anticipated vacancies for the
year 2021-22.
[7] The learned counsel urged that a post is filled by promotion
where the recruitment rules provide and in making promotions, it should
be ensured that suitability of the candidates for promotion is considered in
an objective and impartial manner. In the recommendation, the MPSC
acted arbitrarily and discriminating the petitioners for not recommending
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against the 8 anticipated vacancies instead recommended only 6 leaving
two posts as vacant without any reason. Hence, the DPC held on
12.1.2022 for the anticipated vacancies for promotion to the post of
Executive Engineer is illegal. Thus, a prayer is made to set aside the DPC
held on 12.01.2022 and the promotion order dated 13.4.2022 and
consequently, direct the first respondent to recommend the petitioners for
promotion to the post of Executive Engineer against the remaining two
anticipated vacancies.
[8] Per contra, Mr. R.S. Reisang, the learned senior counsel for
the MPSC submitted that though the petitioners were considered, they
could not be recommended for promotion to the post of Executive
Engineer (PWD), as they were not in the zone of consideration. He
submits that the first respondent conducted the DPC for filling up of
Executive Engineer by promotion against 34 clear vacancies plus 8
anticipated vacancies in accordance with Office Memorandum dated
15.05.2014, wherein the provisions for normal size of zone of
consideration for number of vacancies are laid down.
W.P.(C) No.299 of 2022
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[9] The learned counsel further submitted that there is no direct
provisions for 34 clear vacancies and as such in regard to 34 vacancies,
the DPC had considered upto Serial No.62 under the normal size of zone of
consideration and that the names of the petitioners appeared at Serial
Nos.63 and 65 of the inter-se seniority list of Assistant Engineer (Civil)
could not be recommended for promotion to the post of Executive
Engineer (PWD). Thus, a prayer is made to dismiss the writ petition.
[10] Heard the submissions of Mr. H. Samarjit, learned
Government Advocate appearing for the second respondent and he is
adopting the arguments of the Learned counsel for the MPSC.
[11] This Court considered the rival submissions and also perused
the materials available on record.
[12] There is no dispute that the petitioners are Diploma holders in
Civil Engineer and joined the service to the post of Section Officers in the
Public Works Department and subsequently promoted to the post of
Assistant Engineers and now holding the feeder post for promotion to the
post of Executive Engineers in the Department regularly and while holding
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the post of Executive Engineers, the petitioners have faced two transfer
and posting orders. In the final inter-se seniority list of Assistant Engineer
(Civil) in PWD, Manipur, the names of the petitioners appeared at Serial
Nos.63 and 65 respectively just after the 8th respondent.
[13] The factum of conduction of DPC by the MPSC for filling up of
the post of Executive Engineer by promotion against the 34 clear vacancies
plus 8 anticipated vacancies pursuant to the Office Memorandum dated
15.05.2014 has not been disputed by the respondent authorities. The only
objection raised by the first respondent MPSC is that the petitioners are
not under the normal size of zone of consideration and, therefore, they
could not be recommended for promotion to the post of Executive
Engineer.
[14] As far as 34 clear vacancies, the DPC by its meeting held on
12.1.2022 recommended 32 Assistant Engineers by promotion to the post
of Executive Engineer in Works Department against the clear vacancies of
year wise vacancies of 34, keeping two post as vacant for Sominthang
Singson and Munindro Mangang and kept in a sealed cover as their
W.P.(C) No.299 of 2022
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integrity are withheld. Whereas, by the same DPC, the MPSC
recommended only 6 against the 8 anticipated vacancies which is stated in
paragraph 12 of the impugned order.
[15] At this juncture, the learned counsel for the petitioners
submitted that though the petitioners are eligible and are within the zone
of consideration, they have been omitted to recommend for the post of
Executive Engineer and such an act of the first respondent is arbitrary and
in violation of Article 14 and 16(1) of the Constitution of India.
[16] In reply, the learned counsel for the MPSC submitted that the
petitioners are not within the zone of consideration and they were not
recommended. To prove the said plea, nothing has been produced by the
first respondent. The fact remains that no adverse remarks against the
petitioners have been produced by the respondent authorities.
[17] As rightly argued by the learned counsel for the petitioners, in
making promotions, it should be ensured that suitability of the candidates
for promotion is to be considered that too in an impartial manner.
Moreover, the DPC's constituted shall judge the suitability of officers for
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(a) promotions to Selection-cum-Seniority and Section by Merit as well as
non-selection posts; (b) confirmation in their respective grades/posts; (c)
assessment of the work and conduct of probationers for the purpose of
determining their suitability for retention in service or their discharge from
it extending their probation; and (d) consideration of cases of Government
servants for crossing the efficiency bar.
[18] Admittedly, the petitioners are in Serial Nos.63 and 65 in the
inter-se seniority list. It is essential that the number of vacancies in
respect of which a panel is to be prepared by a DPC should be estimated
as accurately as possible. For the said purpose, the vacancies to be taken
into account should be the clear vacancies arising in a post/grade/service
due to death, retirement, resignation, regular long term promotion and
deputation or from creation of additional post on a long term.
[19] In Union of India and others v. N.R. Banerjee and
others, (1997) 9 SCC 287, the Hon'ble Supreme Court held thus:
"9. It would, thus, be seen that the authorities are
required to anticipate in advance the vacancies for
promotion on regular basis including long-term deputation
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posts and additional posts created and then to take the
action plan in finalising the ACRs, preparation of the select
list and place necessary material before the DPC for
consideration of the candidates within the zone of
consideration, as are found eligible for the relevant
year/years."
[20] For preparation of a select panel, the Departments may
calculate the vacancies for reporting to DPC on financial year wise where
ACRs are written financial year wise and calendar year wise and the
promotion for the post has to be filled as a year wise vacancy. But in the
recommendation, the first respondent has not recommended 8 anticipated
vacancies instead it has recommended 6 leaving two post as vacant
without any reason. When in the DPC provided by the first respondent, it
is clearly mentioned that the year of vacancy for the year 2021-22 is 8
anticipated vacancies, leaving two posts as vacant without any reason is
not acceptable. Further, the non-recommendation of the petitioners who
are the next persons eligible to be considered by the MPSC is totally in
violation of the fundamental right for consideration of promotion and
discrimination when no adverse remarks against the petitioners.
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[21] At this juncture, it would be appropriate to quote paragraph
11 of the judgment in the case of N.R. Banerjee, supra, wherein the
Hon'ble Supreme Court held as under:
"11. It would thus be seen that the claims of the
candidates eligible have to be considered for promotion
objectively and dispassionately, with a sense of achieving
manifold purpose - (1) affording an opportunity to the
incumbent to improve excellence, honesty, integrity,
devotion to public duty; (2) inculcating discipline in
service; (3) afford opportunity to every eligible officer
within the zone of consideration for promotion to a higher
post or office; and (4) ensuring that the committee
regularly meets and considers their claim objectively,
impartially with a high sense of responsibility in
accordance with the procedure and finalisation of the list
in advance so as to fill up vacancies arising in the year
from the approved panel without any undue delay. They
are salutary principles and form the purpose of the policy
behind the above rules and the Government should follow
them."
[22] This Court is of the view that the non-recommendation of the
petitioners against the 8 anticipated vacancies is discriminatory, as the
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petitioners have served more than 17 years as regular service and 3 years
in the post of Assistant Engineer (Civil) and also in the report issued by the
Director of Vigilance and Anti Corruption for 66 Assistant Engineers, the
names of the petitioners appeared at Serial Nos.53 and 55 for promotion
to the post of Executive Engineer to the effect that no vigilance case is
pending. When there is no adverse remarks against the petitioners and
the petitioners are entitled to be considered for promotion, the non-
consideration of them necessitated the petitioners in filing the writ petition.
For the foregoing discussions and finding merits in the writ petition, this
Court is inclined to pass the following order.
[23] In the result,
(i) The writ petition is allowed.
(ii) The impugned DPC dated 12.01.2022 in not
considering the names of the petitioners for
promotion to the post of Executive Engineer
is set aside in respect of the petitioners.
(iii) The first respondent is directed to hold
review DPC for considering to recommend
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the names of the petitioners for the
promotion to the post of Executive Engineer
against the remaining 2 anticipated
vacancies arose in the year 2021-22 and
pass orders accordingly.
(iv) The aforesaid exercise is directed to be
completed within a period of two months
from the date of receipt of a copy of this
order.
(v) No costs.
JUDGE
FR/NFR
-Larson
W.P.(C) No.299 of 2022
