Manipur High Court
Page |4 vs The State Of Manipur Represented ... on 19 January, 2022
Page |1
Digitally
SHAMUR signed by
AILATPA SHAMURAILAT
PAM SUSHIL
IN THE HIGH COURT OF MANIPUR
M SHARMA
AT IMPHAL
Date:
SUSHIL 2022.01.19
14:59:26
SHARMA +05'30'
WP (C) No. 861 of 2019
1. Bidyarani Ayekpam, aged about 30 years, W/o
Dumas Akoijam, resident of Lane 3, Wangkhei
Ningthem Pukhri Mapal, P.O. Imphal, P.S.
Porompat, District Imphal East, Manipur-795005.
2. Laishram Dolie Devi, aged about 38 years, D/o
Laishram Bidyachandra Singh, resident of Kongba
Nongthombam Leikai, P.O. Imphal, P.S. Porompat,
District Imphal East, Manipur-795001.
3. Shamim Ahmad Shah, aged about 38 years, S/o
Late Ahmad Ali Shah, resident of Minuthong Tellipati
Hatta Side, P.O. Imphal, P.S. Porompat, District
Imphal East, Manipur-795005.
4. Hanjabam Bobby Sharma, aged about 43 years, S/o
H. Kunjakishor Sharma, R/o Bhrahmapur
Thangapat Mapal, P.O Imphal, P.S Porompat,
District Imphal East, Manipur-795005.
5. Dr. Ayekpam Chinglenkhomba Meetei, aged about
41 years, S/o Ayekpam Khamton Meetei, resident of
Sagolband Tera Loukrakpam Leikai, P.O. Imphal,
P.S & District Imphal West, Manipur-795001.
6. Lalrobul Fimate, aged of 35 years, S/o Dr. L. Fimate,
resident of Ebenezer Villa near Shija Hospital, P.O.
& P.S. Lamphel, District Imphal West, Manipur-
795004.
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
Page |2
7. Peter Salam, aged about 33 years, S/o Salam
Dilipkumar Singh, resident of Lamphel Qtr. no. E-8,
Type-V, P.O. & P.S. Lamphel, District Imphal West,
Manipur-795004.
8. Ngangom Uttam Singh, aged about 38 years, S/o
Ngangom Yaima Singh, resident of Kontha Ahallup
Makha Leikai, P.O. Imphal, P.S. Porompat, District
Imphal East, Manipur-795001.
9. Laishram Radhakanta Singh, aged about 42 years,
S/o Laishram Nongyai Singh, resident of Singjamei
Leisangthem Leikai, P.O. & P.S. Singjamei, District
Imphal West, Manipur-795008.
10. Sonia Oinam, aged about 33 years, W/o Longjam
Yaiphaba, resident of Keisamthong Longjam Leirak,
P.O. Imphal, P.S. & District Imphal West, Manipur-
795001.
11. Tanushree Naorem, aged about 32 years, D/o Dr.
N. Lokendro Singh, resident of Khagempalli Pankha,
P.O. Imphal, P.S. Singjamei, District Imphal West,
Manipur-795001.
12. Laishram Delina Devi, aged about 37 years, W/o
Bantee Singh Konthoujam, resident of Arapti Mayai
Leikai, P.O. Imphal, P.S. Porompat, District Imphal
East, Manipur-795130.
13. Ramananda Nongmeikapam, aged about 33 years,
S/o (L) N. Bhubon Singh, resident of Kyamgei
Awang Leikai near K.Y.P.C. Club, P.O. Canchipur &
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
Page |3
P.S. Singjamei, District Imphal East, Manipur-
795003.
14. S. Thienlaljoy Gangte, aged about 37 years, S/o S.
Dongkholal Gangte, resident of Head Quarter-Veng,
P.O. Churachanpur, P.S & District Churachanpur,
Manipur-795128.
15. Joel G Haokip, aged about 36 years, S/o L.K.
Haokip, resident of New Lambulane, P.O. & P.S
Porompat, District Imphal East, Manipur-795005.
16. Daryal Juli Anal, aged about 34 years, D/o Late
Daryal Romison Anal, resident of Sangakpham
Kairang Road, P.O. Imphal, P.S & District Imphal
East-795010.
17. Dr. Th. Charanjeet Singh, aged about 44 years, S/o
Th. Chaoba Singh, resident of Thangmeiband
Khomdram Selungba Leikai, P.O. & P.S. Lamphel,
District Imphal West 795004.
18. Gangmei Ganguilu, aged about 33 years, W/o A.
Adhahrii Maheo, resident of Namthanglong
Thangmeiband, P.O. Imphal, P.S. & District Imphal
West, Manipur- 795001.
19. Soiminlian Lengen, aged about 45 years, S/o (L)
P.K. Lengen, resident of near Officers Colony,
Sanjenthong, P.O. & P.S Porompat, District Imphal
East, Manipur- 795005.
20. Bantee Singh Konthoujam, aged about 33 years,
S/o K. Ibochouba Singh, resident of Arapti Mayai
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
Page |4
Leikai, P.O. Imphal, P.S. Porompat, District Imphal
East, Manipur-795130.
...Petitioners
-VERSUS-
1. The State of Manipur represented by the Principal
Secretary/Commissioner(DP), Government of
Manipur, Secretariat, Imphal West District,
Manipur-795001.
2. The Manipur Public Service Commission
represented by its Secretary, North AOC, Imphal,
Manipur-795001.
3. Smt. L. Ibeyaima Devi, W/o (L) RK Khellendra
Singh, resident of Sega Road Konjeng Hajari
Leikai, P.O. Imphal, P.S. & District Imphal West,
Manipur-795001
4. Shri. Kh. Lalmani Singh, aged about 46 years, S/o
Kh. Gunamani Singh, resident of Pishum oinam
Leikai, P.O Imphal, P.S & District Imphal West,
Manipur -795001.
5. Shri. H Balakrishna Singh, aged about 47 years,
S/o (L) H. Basanta Singh, resident of Chingmeirong
Maning Leikai, P.O Imphal, P.S Poropmpat, District
Imphal East , Manipur-795001.
6. Shri. Ng. Bhogendro Singh, aged about 46 years,
S/o Ng. Tompok Singh, resident of Sagolband Tera
Khuraijam Leirak, P.O Imphal, P.S & District Imphal
West, Manipur-795001.
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
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7. Smt. Chingakham Sachi, aged about 49 years, W/o
Babloo Loitongbam, resident of Kwakeithel Thiyam
Leikai, P.O Imphal, P.S & District Imphal West,
Manipur-795001.
8. Shri. Waikhom Ibohal Singh, aged about 49 years,
S/o (L) W. Samungou Singh, resident of Heiganag
Mamang Leikai, P.O. & P.S. Heingang, District
Imphal East, Manipur-795002.
9. Shri L. Kirankumar Singh, aged about 46 years, S/o
L. Shantikumar Singh, resident of Nagamapal
Lamabam Leikai, P.O Imphal, P.O Imphal, P.S &
District Imphal West, Manipur-795001.
10. Shri. N. Gojendro Singh, aged about 44 years, S/o
(L) N. Gambhir Singh, resident of Tera Lukram
Leirak, P.O Imphal, P.S & District Imphal West,
Manipur-795001.
11. Shri Kajagai Gangmei, resident of Namdunlong
near Khuman Lampak, P.O Imphal, P.S Porompat,
District Imphal East , Manipur-795001.
12. Smt Regina Hongray, aged about 50 years, W/o
George Maram, resident of Mantripukhri, behind
Bajaj Auto Showroom, P.O Mantripukhri, P.S &
District Imphal West, Manipur-795002.
13. Shri Kammuanlal Simte, aged about 45 years, S/o
T. Pumkhokam Simte, resident of Chienkonpang,
P.O., P.S & District Churachandpur, Manipur-
795127.
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
Page |6
14. G. Shantikumar Kabui, resident of Langthabal
Khoupum, Canchipur, P.O & P.S. Singjamei,
District Imphal West, Manipur-795008.
15. K.S. Lungrei, aged about 64 years, son of (L) KS
Mingai, resident of Kachai Village, LM Block, P.O.,
P.S. & District, Ukhrul District, Manipur-795142.
16. Smt. M. Kamala Devi, resident of Soibam Leikai
Meri Leirak near JINIMS, P.O Imphal, P.S
Porompat, District Imphal East, Manipur-795001.
17. Shri S. Kunjakishore Singh, aged about 47 years,
S/o (L) S. Maniram Singh, resident of Keirao Bitra
Salam Lairembi Leikai, P.O Imphal, P.S & District
Imphal East, Manipur-795001.
18. Shri Aribam Shivadas Sharma, aged about 47
years, S/o A. Sashibushan Sharma, Bramhapur
Aribam Leikai, P.O Imphal, P.S & District Imphal
East, Manipur-795001.
19. Shri A.S. Elias aged about 48 years, S/o A.S.
Womani, resident of Nagaram, P.O Imphal, P.S
Porompat, District Imphal East, Manipur-795001.
20. K.H Leiyaphi Rita, aged about 48 years, W/o
George Varengnao, resident of Phungreitang
(West), P.O., P.S & District Ukhrul, Manipur-
795142.
21. Smt. Poly Makan, aged about 46 years, D/o
Marchung Makan, resident of Tangkhul Avenue,
P.O. Imphal, P.S. Porompat, District Imphal East,
Manipur-795001.
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
Page |7
22. Shri Kh. Robindro Singh, resident of Sagolband
Khamnam Leirak, P.O. Imphal, P.S. & District
Imphal West, Manipur-795001.
...Respondents
WP (C) No. 867 of 2019
1. Bidyarani Ayekpam, aged about 30 years, W/o
Dumas Akoijam, resident of Lane 3, Wangkhei
Ningthem Pukhri Mapal, P.O. Imphal, P.S.
Porompat, District Imphal East, Manipur-795005.
2. Laishram Dolie Devi, aged about 38 years, D/o
Laishram Bidyachandra Singh, resident of Kongba
Nongthombam Leikai, P.O. Imphal, P.S. Porompat,
District Imphal East, Manipur-795001.
3. Shamin Ahmad Shah, aged about 38 years, S/o
Late Ahmad Ali Shah, resident of Minuthong Tellipati
Hatta Side, P.O. Imphal, P.S. Porompat, District
Imphal East, Manipur-795005.
4. Hanjabam Bobby Sharma, aged about 43 years, S/o
H. Kunjakishor Sharma, R/o Bhrahmapur
Thangapat Mapal, P.O Imphal, P.S Porompat,
District Imphal East, Manipur-795005.
5. Dr. Ayekpam Chinglenkhomba Meetei, aged about
41 years, S/o Ayekpam Khamton Meetei, resident of
Sagolband Tera Loukrakpam Leikai, P.O. Imphal,
P.S & District Imphal West, Manipur-795001.
6. Lalrobul Fimate, aged of 35 years, S/o Dr. L. Fimate,
resident of Ebenezer Villa near Shija Hospital, P.O.
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
Page |8
& P.S. Lamphel, District Imphal West, Manipur-
795004.
7. Peter Salam, aged about 33 years, S/o Salam
Dilipkumar Singh, resident of Lamphel Qtr. no. E-8,
Type-V, P.O. & P.S. Lamphel, District Imphal West,
Manipur-795004.
8. Ngangom Uttam Singh, aged about 38 years, S/o
Ngangom Yaima Singh, resident of Kontha Ahallup
Makha Leikai, P.O. Imphal, P.S. Porompat, District
Imphal East, Manipur-795001.
9. Laishram Radhakanta Singh, aged about 42 years,
S/o Laishram Nongyai Singh, resident of Singjamei
Leisangthem Leikai, P.O. & P.S. Singjamei, District
Imphal West, Manipur-795008.
10. Sonia Oinam, aged about 33 years, W/o Longjam
Yaiphaba, resident of Keisamthong Longjam Leirak,
P.O. Imphal, P.S. & District Imphal West, Manipur-
795001.
11. Tanushree Naorem, aged about 32 years, D/o Dr.
N. Lokendro Singh, resident of Khagempalli Pankha,
P.O. Imphal, P.S. Singjamei, District Imphal West,
Manipur-795001.
12. Laishram Delina Devi, aged about 37 years, W/o
Bantee Singh Konthoujam, resident of Arapti Mayai
Leikai, P.O. Imphal, P.S. Porompat, District Imphal
East, Manipur-795130.
13. Ramananda Nongmeikapam, aged about 33 years,
S/o (L) N. Bhubon Singh, resident of Kyamgei
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
Page |9
Awang Leikai near K.Y.P.C. Club, P.O. Canchipur &
P.S. Singjamei, District Imphal East, Manipur-
795003.
14. S. Thienlaljoy Gangte, aged about 37 years, S/o S.
Dongkholal Gangte, resident of Head Quarter-Veng,
P.O. Churachanpur, P.S & District Churachanpur,
Manipur-795128.
15. Joel G Haokip, aged about 36 years, S/o L.K.
Haokip, resident of New Lambulane, P.O. & P.S
Porompat, District Imphal East, Manipur-795005.
16. Daryal Juli Anal, aged about 34 years, D/o Late
Daryal Romison Anal, resident of Sangakpham
Kairang Road, P.O. Imphal, P.S & District Imphal
East-795010.
17. Dr. Th. Charanjeet Singh, aged about 44 years, S/o
Th. Chaoba Singh, resident of Thangmeiband
Khomdram Selungba Leikai, P.O. & P.S. Lamphel,
District Imphal West 795004.
18. Gangmei Ganguilu, aged about 33 years, W/o A.
Adhahrii Maheo, resident of Namthanglong
Thangmeiband, P.O. Imphal, P.S. & District Imphal
West, Manipur- 795001.
19. Soiminlian Lengen, aged about 45 years, S/o (L)
P.K. Lengen, resident of near Officers Colony,
Sanjenthong, P.O. & P.S Porompat, District Imphal
East, Manipur- 795005.
20. Bantee Singh Konthoujam, aged about 33 years,
S/o K. Ibochouba Singh, resident of Arapti Mayai
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 10
Leikai, P.O. Imphal, P.S. Porompat, District Imphal
East, Manipur-795130.
...Petitioners
-VERSUS-
1. The State of Manipur represented by the Principal
Secretary/Commissioner(DP), Government of
Manipur, Secretariat, Imphal West District,
Manipur-795001.
2. The Manipur Public Service Commission
represented by its Secretary, North AOC, Imphal,
Manipur-795001.
3. Shri. Kh. Lalmani Singh, aged about 46 years, S/o
Kh. Gunamani Singh, resident of Pishum oinam
Leikai, P.O Imphal, P.S & District Imphal West,
Manipur -795001.
4. Shri. H Balakrishna Singh, aged about 47 years,
S/o (L) H. Basanta Singh, resident of Chingmeirong
Maning Leikai, P.O Imphal, P.S Poropmpat, District
Imphal East , Manipur-795001.
5. Shri. Ng. Bhogendro Singh, aged about 46 years,
S/o Ng. Tompok Singh, resident of Sagolband Tera
Khuraijam Leirak, P.O Imphal, P.S & District Imphal
West, Manipur-795001.
6. Smt. Chingakham Sachi, aged about 49 years, W/o
Babloo Loitongbam, resident of Kwakeithel Thiyam
Leikai, P.O Imphal, P.S & District Imphal West,
Manipur-795001.
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 11
7. Shri. Waikhom Ibohal Singh, aged about 49 years,
S/o (L) W. Samungou Singh, resident of Heiganag
Mamang Leikai, P.O. & P.S. Heingang, District
Imphal East, Manipur-795002.
8. Shri L. Kirankumar Singh, aged about 46 years, S/o
L. Shantikumar Singh, resident of Nagamapal
Lamabam Leikai, P.O Imphal, P.O Imphal, P.S &
District Imphal West, Manipur-795001.
9. Shri. N. Gojendro Singh, aged about 44 years, S/o
(L) N. Gambhir Singh, resident of Tera Lukram
Leirak, P.O Imphal, P.S & District Imphal West,
Manipur-795001.
10. Shri Kajagai Gangmei, resident of Namdunlong
near Khuman Lampak, P.O Imphal, P.S Porompat,
District Imphal East , Manipur-795001.
11. Smt Regina Hongray, aged about 50 years, W/o
George Maram, resident of Mantripukhri, behind
Bajaj Auto Showroom, P.O Mantripukhri, P.S &
District Imphal West, Manipur-795002.
12. Shri Kammuanlal Simte, aged about 45 years, S/o
T. Pumkhokam Simte, resident of Chienkonpang,
P.O., P.S & District Churachandpur, Manipur-
795127.
13. G. Shantikumar Kabui, resident of Langthabal
Khoupum, Canchipur, P.O & P.S. Singjamei,
District Imphal West, Manipur-795008.
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 12
14. Smt. M. Kamala Devi, resident of Soibam Leikai
Meri Leirak near JINIMS, P.O Imphal, P.S
Porompat, District Imphal East, Manipur-795001.
15. Shri S. Kunjakishore Singh, aged about 47 years,
S/o (L) S. Maniram Singh, resident of Keirao Bitra
Salam Lairembi Leikai, P.O Imphal, P.S & District
Imphal East, Manipur-795001.
16. Shri Aribam Shivadas Sharma, aged about 47
years, S/o A. Sashibushan Sharma, Bramhapur
Aribam Leikai, P.O Imphal, P.S & District Imphal
East, Manipur-795001.
17. Shri A.S. Elias aged about 48 years, S/o A.S.
Womani, resident of Nagaram, P.O Imphal, P.S
Porompat, District Imphal East, Manipur-795001.
18. K.H Leiyaphi Rita, aged about 48 years, W/o
George Varengnao, resident of Phungreitang
(West), P.O., P.S & District Ukhrul, Manipur-
795142.
...Respondents
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioners :: Mr. Kh. Tarunkumar, Advocate in
both WP(C) No. 861 of 2019 and
WP(C) No. 867 of 2019.
For the Respondents :: Mr. Lenin Hijam, Addl. AG for the
respondent No. 1 in both WP(C)
No. 861 of 2019 and WP(C) No.
867 of 2019;
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 13
Mr. RS Reisang, Sr. Advocate for
the respondent No. 2 MPSC in
both WP(C) No. 861 of 2019 and
WP(C) No. 867 of 2019;
Mr. HS Paonam, Sr. Advocate for
to 18 in WP(C) No. 861 of 2019
and WP(C) No. 867 of 2019
respectively.
Date of Hearing and
reserving Judgment & Order :: 22.12.2021
Date of Judgment & Order :: 19.01.2022
JUDGMENT AND ORDER
(CAV)
W.P.No.(C) 861 of 2019 has been filed by the
petitioners to quash the impugned order dated 31.8.2016
promoting/absorbing the private respondents 3 to 22 to the post of
MCS Grade-II retrospectively with effect from 17.2.2010 and to
quash the final seniority list of MCS officers dated 21.9.2016 and
27.11.2017 in respect of the private respondents and to direct the
first respondent to re-fix the inter-se seniority of the petitioners and
the private respondents strictly in terms of the relevant rules and the
guidelines issued by the Government of Manipur in this regard.
2. W.P.(C) No.867 of 2019 has been filed by the
petitioners to quash the impugned order dated 23.9.2016, whereby
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 14
promoting the private respondents 3 to 18 to the post of MCS
Grade-I.
3. Since the issue involved in these petitions is one and
the same and the petitioners and some of the private respondents
are similar, both the writ petitions were heard together and disposed
of by this common order.
4. Briefly stated case of the petitioners in W.P.No.861 of
2019 is as follows:
The petitioners were initially appointed as MCS Grade-
II on 15.12.2012 and 03.01.2017 respectively and after rendering
more than five years of regular service as MCS Grade-II, they were
promoted to the post of MCS Grade-I with effect from 22.12.2017
and 14.2.2018 respectively vide orders dated 22.12.2017, 14.2.2018
and 29.5.2019 issued by the Under Secretary (DP), Government of
Manipur.
4.1. The private respondents were initially appointed as
SDC in the Revenue Department in the year 1997 and 1999 and later
on, with the enactment of Jr. MCS Rules, 2007 and in exercise of
powers conferred under Rule 16 of the said Rules, they were
appointed as Junior Manipur Civil Service with effect from the date
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 15
of their initial appointment by an order dated 16.11.2007.
Subsequently, the private respondents were promoted as Junior
MCS (Sr. Grade) vide order dated 23.2.2008 with effect from the date
noted against their names.
4.2. The next promotional post of Junior MCS (Sr. Grade) is
the post of Junior MCS (Selection Grade) and on the basis of the
recommendation of the Selection Committee, 14 Junior MCS (Sr.
Grade) were promoted to the post of Junior MCS (Selection Grade),
including some of the private respondents. The said promotion order
was challenged by some of Junior MCS (Sr. Grade) by filing three
writ petitions before the Gauhati High Court and by the order dated
4.4.2012, the Gauhati High Court set aside the promotion order and
directed to hold a fresh DPC.
4.3. During the pendency of the aforesaid three writ
petitions, the Manipur Government framed another Rule called the
Junior MCS (1st Amendment) Rules, 2012 with effect from 6.3.2012
and under the said amended Rules, 31 posts in the Grade of Junior
MCS (Selection Grade) have been abolished and the provisions
under Rule 27(1)(ii) and Rule 27(3) which deal with the provisions for
promotion to Junior MCS (Selection Grade) were deleted. Thus, all
31 posts of Junior MCS (Selection Grade) as well as all the
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 16
provisions for promotion to the said 31 posts as provided in the earlier
Rules stand abolished with effect from 6.3.2012. There is no longer
any post of Junior MCS (Selection Grade) with effect from 6.3.2012
and also no provision under the Rules for giving promotion to the said
abolished posts with effect from 6.3.2012. By the said amended
Rules, Rules 5, 16, 28 and Schedule-I of the Manipur Civil Service
Rules, 1965 have been amended and the amended Rule 16(2)
provides for absorbing the Junior MCS (Selection Grade) into MCS
Grade-II.
4.4. In compliance with the order dated 4.4.2012 passed by
the Gauhati High Court, a review DPC was held and
recommendation was sent to the Government. However, the
Government declined to accept the recommendation of the Selection
Committee as all the 31 posts of Junior MCS (Selection Grade) have
already been abolished and no posts are in existence. A fresh DPC
was held and recommended the names of the private respondents
for promotion to MCS Grade-II and the Government had issued an
order dated 6.12.2013 promoting the private respondents to the post
of MCS Grade-II. Later on the Government issued another order
dated 31.8.2016 appointing the private respondents to the post of
MCS Grade-II retrospectively with effect from 17.2.2010 and soon
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 17
thereafter, seniority list was published on 21.9.2016 and the private
respondents were given promotion to the post of MCS Grade-I and
the Government had also issued another seniority list on 27.11.2017.
4.5. After the Government Order dated 20.2.2010
appointing on promotion the private respondents to the post of Junior
MCS (Selection Grade) with effect from 17.2.2010 had been
quashed by this Court in its judgment dated 4.4.2012 passed in
W.P.(C) Nos.140 of 2010, 243 of 2010 and 123 of 2010, the private
respondents have never been given promotion to the post of Junior
MCS (Selection Grade) in terms of the provisions of Rule 27 of the
Junior MCS Rules, 2007. In other words, the private respondents
were never appointed as Junior MCS (Selection Grade) at any point
of time and they are not at all entitled to be absorbed as MCS Grade-
II as provided under the amended Rule 16 of the MCS Rules.
Accordingly, the impugned order dated 31.8.2016 issued by the
Commissioner (DP) appointing the private respondents as MCS
Grade-II retrospectively with effect from 17.2.2010 deserves to be
quashed as being illegal and ultra vires the MCS Rules, 1965,
inasmuch as under Rule 16(2) provides for absorbing only Junior
MCS (Selection Grade) officers into MCS Grade-II with effect from
the date they were promoted to Junior MCS (Selection Grade).
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 18
4.6. The petitioners are entitled to get their seniority counted
with effect from 2010 on which year the requisition for their
appointment was sent to the Manipur Public Service Commission by
the Manipur Government and not from 2012 as wrongly shown in the
impugned seniority lists dated 21.9.2016 and 27.11.2017. The
petitioners are entitled to be placed en-bloc above the names of the
private respondents while fixing their inter-se seniority, inasmuch as,
the private respondents are entitled to get their seniority counted only
with effect from 5.3.2012 on which date they were given promotion
to the post of MCS Grade-II.
5. In W.P.(C) No.867 of 2019, the petitioners averred
almost similar facts as have been stated in W.P.No.861 of 2019.
According to the petitioners, the private respondents 3 to 18 in
W.P.No.867 of 2019 are not at all entitled to be promoted to MCS
Grade-I and, accordingly, the impugned order dated 23.9.2016
promoting the private respondents to the post of MCS Grade-I is
liable to be quashed.
6. Pending W.P.No.861 of 2019, on 18.10.2019, this Court
passed an interim order directing the official respondents not to give
promotion to the respondents 3 to 22 therein without the leave of this
Court till the next returnable date. When the writ petition was taken
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 19
up for hearing on 27.11.2019, this Court ordered to continue the
interim order dated 18.10.2019 until further orders. This Court had
also passed similar interim order in W.P.No.867 of 2019 on
21.10.2019 directing the respondents not to give any further
promotion to the respondents 3 to 18 therein without the leave of this
Court till the next returnable date. On 27.11.2019, the interim order
dated 21.10.2019 was extended until further orders.
7. The private respondents have filed M.C.(WP) Nos.328
and 329 of 2019 seeking to vacate the interim orders passed in the
writ petitions stating that the petitioners had challenged the order
dated 31.8.2016 absorbing the private respondents with effect from
17.2.2010 and the final seniority list of MCS Grade-II published vide
order dated 21.92016 and 23.9.2016 by filing M.C.(WP) No.253 of
2016 in W.P.(C) No.677 of 2016. However, the petitioners had not
pressed the prayer made in the said miscellaneous petition at the
time of final hearing of the writ petition and as such, this Court was
pleased to record that since the petitioners have not challenged the
order dated 31.8.2016, they cannot have any grievance against the
impugned provisions of the MCS (1st Amendment) Rules. After the
dismissal of W.P.(C) No.677 of 2016, the petitioners have not
preferred any writ appeal or review the said judgment. Thus, it can
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 20
be said that the petitioners have abandoned their rights relating to
challenge the order dated 31.8.2016 and the seniority lists published
vide order dated 21.9.2016 and 23.9.2016 promoting the private
respondents and others to the posts of MCS Grade-I.
8. In the vacate interim order petitions, the private
respondents stated that the petitioners managed to obtain an interim
order on 18.10.2019 restraining the official respondents from giving
further promotion to the private respondents without the leave of the
Court. The private respondents state that in the present writ petitions,
not even a single whisper has been made by the petitioners about
the filing of M.C.(WP) No.253 of 2016 in W.P.No.677 of 2016 and
therefore, on this count alone, the writ petitions are liable to be
dismissed.
9. According to the private respondents, the issue
regarding the entitlement of counting seniority by the private
respondents and others with effect from 17.2.2010 has been
considered and granted by this Court in W.P.(C) No.897 of 2013 and
W.P.(C) No.612 of 2014. Therefore, unless the order passed in the
aforesaid writ petitions is reviewed or superseded by another order,
the issue having been settled cannot be re-opened at a belated
stage. Further more, the issue about the counting of seniority of the
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 21
private respondents with effect from 17.2.2010 is barred by the
principle of constructive res judicata as the same has also been the
subject matter in M.C.(WP) No.253 of 2016 which the petitioners
have failed to press before this Court at the time of final hearing of
W.P.(C) No.677 of 2016. In such situation, it would not be proper to
restrain the official respondents from giving further promotion to the
private respondents and as such, the interim orders dated
18.10.2019 and 27.11.2019 which have been passed in the writ
petition without hearing the private respondents are liable to be
vacated.
10. Similarly, M.C.No.329 of 2019 has been filed by the
private respondents seeking to vacate the interim orders dated
21.10.2019 and 27.11.2019 granted in W.P.(C) No.867 of 2019. The
plea seeking to vacate interim order in M.C.(WP) No.329 of 2019 is
almost similar as stated in M.C.(WP) No.328 of 2019 except the order
dated 21.10.2019. Therefore, the facts stated in M.C.(WP) No.329 of
2019 have not been repeated.
11. Assailing the impugned orders, Mr. Kh. Tarunkumar,
learned counsel for the petitioners submitted that as the order dated
20.02.2010 promoting 14 Junior MCS (Sr. Grade), including the
private respondents to the post of Junior MCS (Selection Grade) had
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 22
been quashed by this Court vide order dated 4.4.2012 passed in
W.P.(C) Nos.140, 243 and 123 of 2010, the said 14 Junior MCS (Sr.
Grade) officers, including the private respondents, are not entitled to
be absorbed into MCS Grade-II by counting their seniority with effect
from 17.2.2010. He would submit that there is no valid Government
Order promoting the said 14 Junior MCS (Sr. Grade) officers,
including the private respondents to the higher post of Junior MCS
(Selection Grade) and accordingly, these 14 Junior MCS officers are
not at all entitled to be absorbed as MCS Grade-II.
12. Learned counsel for the petitioners further submitted
that no valid order had been passed by the Government in terms of
the relevant Service Rules appointing the private respondents as
Junior MCS (Selection Grade) till date and, therefore, they are not
entitled to be absorbed as MCS Grade-II by counting their seniority
with effect from 17.2.20210 as provided under the proviso to Rule
16(2) read with Rule 28(i)(d) of the MCS (1st Amendment) Rules,
2012.
13. Learned counsel for the petitioners argued that the
impugned order dated 31.8.2016 absorbing the private respondents
in W.P.No.861 of 2019 to the post of MCS Grade-II with effect from
17.2.2010 had been issued by flouting all the relevant provisions of
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 23
the Junior MCS Rules, thereby rendering the said impugned order as
invalid and ab initio void in the eye of law. In fact, Rule 5 of MCS
Rules, clearly states that any appointment by promotion or by review
DPC should be done through the Manipur Public Service
Commission and that in compliance of the High Court order, the State
Government should have requested for a DPC through Manipur
Public Service Commission to review their date of promotion from
17.2.2010 to 05.03.2012. However, the Department of Personnel has
issued an order giving them retrospective appointment with effect
from 17.2.2010 without convening any DPC.
14. Learned counsel for the petitioners then submitted that
Manipur Civil Service is one of the highest organized service in the
State and any promotion/appointment should have been done
through the competent DPC which is through the Manipur Public
Service Commission. However, in the case on hand, the
absorption/promotion or so called appointment was given through a
mere speaking order issued by an Administrative Secretary of the
Department by not following the existing Rules.
15. It is the submission of learned counsel for the
petitioners that orders passed in W.P.(C) No.897 of 2013 and
W.P.(C) No.612 of 2014 are distinguishable as the petitioner in
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 24
W.P.No.897 of 2013 was not only recommended by the first DPC,
but again by the review DPC held on 4.8.2012 and also by the last
DPC held on 14.12.2013, therefore, he would be entitled to be
appointed to MCS (Selection Grade) with effect from 17.2.2010 and
for absorption as MCS Grade-II by virtue of amendment to Rule 16
of MCS Rules, 1965. As far as W.P.(C) No.612 of 2014 is concerned,
the said writ petition was disposed of in terms of the order dated
28.4.2015 passed in W.P.(C) No.897 of 2013 and directed the
Government to pass appropriate orders as regards the benefits to be
given to the petitioners therein. In compliance of the above two Court
orders and without holding any DPC as mandated by the MCS Rules,
the Department of Personnel issued the impugned order dated
31.8.2016 giving promotion to 20 Junior MCS officers to the post of
MCS Grade-II with effect from 17.2.2010 which is illegal and void ab
initio and they are not at all entitled to count their seniority from
17.2.2010.
16. It is also the submission of learned counsel for the
petitioners that the private respondents in W.P.No.867 of 2019 were
never appointed as Junior MCS (Selection Grade) at any point of
time and they are not entitled to be absorbed as MCS Grade-II as
provided under the amended Rule 16 of the MCS Rules and
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 25
therefore, the impugned order dated 23.9.2016 promoting the private
respondents to the post of MCS Grade-I is not sustainable in the eye
of law and hence, the same is liable to be quashed.
17. Mr. Lenin Hijam, learned Additional Advocate General,
appearing for the respondent State submitted that
appointment/absorption of the private respondents to the post of
MCS Grade-II with effect from 17.2.2010 was issued in compliance
of the order dated 28.4.2015 passed in W.P.(C) No.897 of 2013 and
the order dated 17.8.2016 passed in Review Petition No.9 of 2016
and also the order dated 28.5.2015 passed in W.P.(C) No.612 of
2014. Since no one questioned the aforesaid orders by way of
appeal, the said orders have attained finality and as such the same
is binding on all the parties. He would submit that promotion to the
post of MCS Grade-I is as per the existing Rule 30(2) of MCS Rules,
1965, which provides promotion to the post of MCS Grade-I on
completion of 5 years of regular service in the Grade and therefore,
there is no infirmity in passing the impugned orders and therefore writ
petitions are liable to be dismissed.
18. Mr. H.S. Paonam, learned senior counsel appearing for
the private respondents submitted that the petitioners and others had
earlier challenged the MCS (1st Amendment) Rules, 2012 on the
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 26
basis whereof, the private respondents and others were given
retrospective seniority in the Grade of MCS Grade-II by filing W.P.(C)
No.677 of 2016, wherein the petitioners have also challenged the
impugned order dated 31.8.2016 absorbing the private respondents
with effect from 17.2.2010 and the final seniority list of MCS Grade-
II published on 21.9.2016 and 23.9.2016 respectively whereby the
private respondents were given promotion to the Grade of MCS
Grade-I by filing M.C.(WP) No.253 of 2016 in W.P.(C) No.677 of
2016.
19. Learned senior counsel further submitted that on
7.7.2017, this Court closed M.C.(WP No.253 of 2016 by observing
that since the writ petition has been fixed for final disposal, it would
be appropriate to consider the prayer at the time of final hearing and
that subsequently, on 4.1.2018, this Court dismissed W.P.(C) No.677
of 2016 by holding that since the petitioners have not challenged the
order dated 6.12.2013 promoting the private respondents and others
as MCS Grade-II with effect from 5.3.2012 and order dated
31.8.2016 giving retrospective seniority with effect from 17.2.2010,
the petitioners cannot be prejudiced by the impugned provision of the
MCS (1st Amendment).
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 27
20. Learned senior counsel for the private respondents
argued that in fact the petitioners had challenged the order dated
31.8.2016 and the final seniority list of MCS Grade-II by filing
M.C.(WP) No.253 of 2016 in W.P.(C) 677 of 2016, however, the
petitioners have not pressed the prayer made in the miscellaneous
application at the time of final hearing of the writ petition and,
therefore, this Court recorded that since the petitioners have not
challenged the order dated 31.8.2016, they cannot have any
grievance against the impugned provisions of MCS (1st Amendment)
Rules. He would submit that as against the order passed in W.P.(C)
No.677 of 2016, the petitioners have not preferred any appeal or
review of the order dismissing the said writ petition and therefore, it
can be said that the petitioners have abandoned their rights relating
to challenging the order dated 31.8.2016 and the seniority lists
promoting the private respondents and others to the post of MCS
Grade-I.
21. Learned senior counsel for the private respondents
further argued that the issue regarding the entitlement of counting
seniority by the private respondents and others with effect from
17.2.2010 has been considered and granted by this Court in W.P.(C)
Nos.897 of 2013 and 612 of 2014 and therefore, unless the order
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 28
passed in the aforesaid writ petitions is reviewed or superseded by
another order, the issue having been settled cannot be re-opened at
such a belated stage.
22. It is also the submission of learned senior counsel for
the private respondents that the issue about counting of seniority of
the private respondents as MCS Grade-I is barred by the principle of
res judicata as the same has also been the subject matter in
M.C.(WP) No.253 of 2016 which the petitioners have failed to press
before this Court at the time of final hearing of the writ petition being
W.P.(C) No.677 of 2016. In such view of the matter, the petitioners
are barred from challenging the order dated 23.9.2016 as well as the
seniority lists of MCS dated 21.9.2016 and 27.11.2017 respectively
in view of the doctrine of waiver and acquiescence.
23. Learned senior counsel for the private respondents
urged that in fact the seniority position of the private respondents and
the petitioners in the Grade of MCS Grade-II has attained finality by
acting on the same while giving promotion in the Grade of MCS
Grade-I to the private respondents as well as to the petitioners and
as such, it would not be permissible to unsettle the settled seniority
position after such belated period.
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 29
24. This Court considered the submission made by learned
counsel for the parties and also perused the materials available on
record.
25. The grievance of the petitioners is that they are entitled
to get their seniority reckoned with effect from 2010 in which year the
requisition for their appointment was sent to the Manipur Public
Service Commission by the Government and not from 2012 as
wrongly shown in the impugned seniority lists and thus, the
petitioners are entitled to en-bloc above the names of the private
respondents in W.P.(C) No.861 of 2019 while fixing their inter-se
seniority list, inasmuch the private respondents are entitled to get
their seniority counted with effect from 5.3.2012 on which date they
were given promotion to the post of MCS Grade-II.
26. It is also the grievance of the petitioners that after the
Government Order dated 20.2.2010 appointing on promotion the
private respondents in W.P.(C) No.867 of 2019 to the post of Junior
MCS (Selection Grade) with effect from 17.2.2010 had been
quashed by this Court in its order dated 4.4.2012 passed in W.P.(C)
Nos.140, 243 and 123 of 2010 and the private respondents have
never been given promotion to the post of Junior MCS (Selection
Grade) in terms of the provisions of Rule 27 of the Junior MCS Rules,
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 30
2007 as amended in 2009. In other words, the private respondents
in W.P.(C) No.867 of 2019 were never appointed as Junior MCS
(Selection Grade) at any point of time and they are not entitled to be
absorbed as MCS Grade-II as provided under the amended Rule 16.
In such view of the matter, the private respondents in W.P.(C) No.867
of 2019 were not at all entitled to be promoted as MCS Grade-I and
accordingly, the impugned order dated 23.9.2016 promoting the
private respondents to the post of MCS Grade-I is liable to be
quashed.
27. The petitioners, inter alia, challenged the impugned
order dated 31.8.2016 promoting/absorbing the private respondents
to the post of MCS Grade-II retrospectively with effect from 17.2.2010
as well as the final seniority lists of MCS officers dated 21.9.2016
and 27.11.2017 and contended that after quashing and setting aside
the order dated 20.2.2010 promoting 14 Junior MCS (Sr. Grade) to
Junior MCS (Selection Grade), the State Government had not issued
any order appointing the private respondents as Junior MCS
(Selection Grade) and as such, they are not entitled to be absorbed
as MCS Grade-II provided under the amended Rule 16 of the MCS
Rules. It is also the contention of the petitioners that after the
absorption of all Junior MCS officers pursuant to notification dated
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 31
5.3.2012, no post of Junior MCS remains against which the private
respondents could be promoted and therefore, counting seniority of
the private respondents retrospectively from 17.2.2010 is illegal.
28. Similarly, the petitioners have challenged the impugned
order dated 23.9.2016 promoting the private respondents to the post
of MCS Grade-I by urging the same set of facts as stated in W.P.(C)
No.861 of 2019 and submitted that counting seniority of the private
respondents retrospectively from 17.2.2010 and giving promotion to
MCS Grade-I vide impugned order dated 23.9.2016 is illegal and
liable to be quashed.
29. As could be seen from the records that the private
respondents in W.P.(C) No.861 of 2019 had joined the service of
State Government initially as SDC following their appointment made
on the recommendation of the Manipur Public Service Commission
and confirmed to the said post on 1.3.2001 have been discharging
their duty without any blemish have become cadre post of Junior
MCS Rules, 2006 which has been framed by competent authority in
exercise of power conferred by Article 309 of the Constitution of India
and enforced with effect from 10.10.2007.
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 32
30. Under MCS Rules, 2007, particularly Rules 16, 141
SDCs were given appointment with effect from the date noted against
their names vide order dated 16.11.2007 and the private
respondents were deemed to have appointed on regular basis to the
post of Junior MCS with effect from 27.3.1999 and as such,
determination of the qualifying service for further promotion to Junior
MCS (Senior Grade) would be reckoned from the date of the deemed
appointment on regular basis to the post under Rule 27 of the said
Junior MCS Rules.
31. After finalization of the seniority list of officers in the
Grade of Junior MCS on 2.1.2008 and on the recommendation of the
Selection Committee, the Junior MCS officers were placed in the
Grade of Junior MCS (Sr. Grade) and thereafter, by the order dated
20.2.2010, after considering the eligible candidates, 14 officers of
Junior MCS (Sr. Grade) were given promotion to the post of Junior
MCS (Selection Grade) with effect from 17.2.2010, including the
private respondents. Some of the officers, who were not
recommended, have challenged the order dated 20.2.2020 by filing
writ petitions and this Court disposed of the writ petitions by a
common order dated 4.4.2012 quashing the order dated 20.2.2010
with a direction to hold a fresh DPC within a period of two months.
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 33
32. Pursuant to the directions of this Court dated 4.4.2012,
a review DPC was held on 4.8.2012 by which 14 persons, including
the private respondents, namely Kh Lalmani Singh, Balkrishna
Singh, Bhogendro Meitei, Chingakham Sachi, Waikhom Ibohal Singh
and Kajagai Gangmei were recommended for promotion to the post
of Junior MCS (Selection Grade). In the meanwhile, MCS Rules,
1965 was amended vide notification dated 5.3.2012 and accordingly,
30 Junior MCS were absorbed to the post of MCS Grade-II by
counting their seniority from the day they were promoted to Junior
MCS (Sr. Grade) i.e. with effect from 17.2.2010 in respect of the
those 14 Junior MCS (Selection Grade) promoted vide order dated
20.2.2010 vide order dated 17.3.2012.
33. It appears that subsequently, the State Government
issued an order dated 6.12.2013 promoting 20 Junior MCS
(Selection Grade) officers, including the private respondents to the
post of MCS Grade-II with effect from 5.3.2012. Being aggrieved by
the order dated 5.3.2012, the 18th respondent - Shivadas Sharma
has field W.P.(C) No.897 of 2013 and the other private respondents
herein have filed W.P.(C) No.612 of 2014 claiming for counting
seniority with effect from 17.2.2010 by extending the benefit of the
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 34
proviso to Rule 16(2) read with Rule 28(d) of MCS Rules, 1965 (as
amended) by modifying the promotion order dated 6.12.2013.
34. By the order dated 28.4.2015, this Court allowed
W.P.(C) No.897 of 2013 by holding that the petitioner therein would
be entitled to be promoted to the post of Junior MCS (Selection
Grade) with effect from 17.2.2010. By the order dated 28.5.2015,
W.P.(C) No.612 of 2014 came to be disposed of in terms of the order
dated 28.4.2015 passed in W.P.(C) No.897 of 2013 with a direction
to issue appropriate orders as regards to the benefits to be given to
the petitioners therein with effect from 17.2.2010 by virtue of the
amendment of Rule 16(2) read with Rule 28(2) of the MCS Rules,
1965.
35. As is evident from the records that pursuant to the
orders passed in the aforesaid two writ petitions and in compliance,
the State Government issued the impugned order dated 31.8.2016
appointing/absorbing the private respondents to the post of MCS
Grade-II retrospectively with effect from 17.2.2010 and after inviting
objections, the seniority list of MCS officers was finalized on
21.9.2016.
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 35
36. On a perusal of the impugned order dated 31.8.2016, it
is seen that the Commissioner (DP), in supersession of the earlier
order dated 6.12.2013 and in compliance with the Court order, has
ordered appointment/absorption of the private respondents to the
post of Grade-II with retrospective effect from 17.2.2010.
37. It is pertinent to mention at this juncture that the
petitioners herein have filed W.P.(C) No.677 of 2016 on 27.9.2016
for quashing the proviso to Rule 16(2) and proviso (d) to Rule 28(i)
of the Manipur Civil Service Rules, 1965 and pending W.P.(C)
No.677 of 2016, the petitioners took out an application in M.C.(WP)
No.253 of 2016 seeking to suspend the operation of the
appointment/absorption order dated 31.8.2016 and the promotion
order dated 23.9.2016. When the said application was taken up for
hearing on 7.7.2017, this Court closed the said application observing
that since the main writ petition is fixed for hearing, it would be
appropriate to consider the said prayer at the time of final hearing.
38. After hearing both parties and upon perusing the
documents, a Division Bench of this Court, by the order dated
4.1.2018 dismissed W.P.(C) No.677 of 2016. On a perusal of the
order dated 4.1.2018, this Court finds that the Division Bench of this
Court has not only dealt with the matter as regards the provisions
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 36
challenged in the said writ petition, but also the other aspects of the
matter by considering the earlier round of litigations instituted by the
parties. Paragraphs 28 to 33 are relevant and accordingly, the same
are quoted hereunder:
"28. It is to be noted that one of the aforesaid
promotees, namely, A. Shivdas Sharma (who is
impleaded as Respondent no. 16 in this petition) filed
a writ petition being, WP(C) No. 897 of 2013, before
this Court claiming that he is entitled to be appointed
to the MCS Grade-II w.e.f. 17.02.2010 by virtue of the
aforesaid impugned provisos to MCS Rules, 1965. It
was the case of this Respondent no. 16 in the said
writ petition that he initially joined service as SDC in
the year 1999 and thereafter, he was appointed as Jr.
MCS (Junior Grade) in the year 2007. Later, he along
with others were appointed to the higher grade of
Junior MCS (Senior Grade) vide order dated
23.02.2008. Thereafter, he was appointed to the
higher post of Jr. MCS (Selection Grade) vide order
dated 20th February, 2010 w.e.f. 17.02.2010 and in
ordinary course, Respondent No. 16 and others who
were appointed to the posts of Jr. MCS (Selection
Grade) would have been absorbed to the post of MCS
Grade-II by virtue of the impugned proviso to Rule
16(2) of MCS Rules, 1965 and would have enjoyed
the seniority to the said post of MCS Grade-II from
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 37
the date he was promoted to the post of Jr.MCS
(Selection Grade) by virtue of the proviso to Rule
20(i). However, it did not happen because of the fact
that the said promotion order dated 20.02.2010 was
challenged by some others as mentioned above
which led to the delay in the absorption to MCS
Grade-II.
This Court in WP(C) No. 897 of 2013 considered the
relevant rules as well as the earlier judgment of the
Hon'ble Gauhati High Court which set aside the
promotion order dated 20.02.2010 and which directed
for holding Review DPC, as well as the order dated
18th November, 2013 issued by the State
Government which did not accept the
recommendation of the Review DPC held on
04.08.2012.This Court, thereafter, vide order dated
28.04.2015 in WP(C) No. 897 of 2013 considering the
peculiar facts and circumstances of the case, the
litigations, amendment of the rules, directed that the
said petitioner (Respondent no. 16) would be entitled
to the benefit for being absorbed to the MCS Grade-
II w.e.f. 17.02.2010 by virtue of the operation of the
said amendment to Rule 16 of the MCS Rules, 1965.
To the extent indicated, the order dated 18.11.2013
as well as the subsequent promotion order dated
16.12.2013 were interfered by the Court. Perusal of
the aforesaid order dated 28.04.2015 passed in
WP(C) No. 897 of 2013 would indicate that the Court
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 38
took the said view that since vacancies were
available in the posts of Jr. MCS (Selection Grade) to
which the petitioner (Respondent no. 16) and others
were promoted in 2010, they would have been
entitled to absorption to the post of MCS Grade-II on
the basis of the provisos to Rule 16 and Rule 28(1).
This Court in WP(C) No. 897 of 2013 seems to have
taken the view that the right of eligible officers in the
feeder grade to be considered for promotion to the
higher posts, if vacancies exist cannot be allowed to
be negated for no fault of the eligible candidates. It is
to be noted that two DPCs were held on 17.02.2010
and 04.08.2012 Against 14 vacancies which were
already existing. These vacancies could not have
been allowed to be rendered irrelevant or redundant
as far as eligible suitable candidates were concerned,
who on being promoted to the Jr. MCS (Selection
Grade) would have the vested right to be absorbed to
the MCS Grade-II.
29. Therefore, as 14 posts of MCS Grade-II were
already available, there would not be any difficulty for
considering promotion/absorption of 14 Jr. MCS
officers to the post of MCS Grade-II. However, from
the last order of promotion dated 06.12.2013, it is
seen that 20 Jr. MCS officers were promoted to the
posts of MCS Grade-II who all have been given the
benefit of seniority w.e.f. 17.02.2010. From the list of
20 officers who were promoted to the post of MCS
WP(C) No. 861 of 2019 and WP(C) No. 867 of 2019
P a g e | 39
Grade-II vide order dated 06.12.2013, it is seen that
18 officers had been appointed either under the order
dated 20th February, 2010 or recommended by the
Review DPC held on 04.08.2012 and as such, they
were found suitable for promotion to the posts of MCS
Grade-II. On the other hand, there are two persons,
Respondents no. 17 and 19 who were neither
recommended by either of the DPC held on
17.02.2010 or the Review DPC held on 04.08.2012
for promotion to the post of MCS Grade-II. The
appointment order dated 06.02.2013 was issued on
the basis of the recommendation of the DPC held on
06.02.2013. As mentioned above, there cannot be
any issue about absorption of 14 officers to the higher
posts of MCS Grade-II vide DPC dated 17.02.2010
as there were clear vacancies available in the year
2010 itself, before the petitioners entered service. As
such, there cannot be any grievance for giving
seniority to those 14 MCS Grade-II officers w.e.f.
17.02.2010. However, there may be certain issues
about the remaining 6 MCS Grade-II officers (20-14)
about them being given retrospective seniority from
17.02.2010. In this regard, it is to be mentioned that
High Court in the orders dated 28.04.2015 in WP(C)
No. 897 of 2013 and dated 28.05.2015 passed in
WP(C) No. 612 of 2014, had directed for giving the
benefit of promotion to the post of MCS Grade-II
w.e.f. 17.02.2010 by virtue of amendment of Rule
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62(d) of the Manipur Civil Service Rules, 1965.
Hence, this Court may not interfere with such
benefits. It can be said that appointment of those 18
officers of MCS Grade-II w.e.f. 17.02.2010 had been
reinforced by judicial decision. That leaves, after
taking into account of 18 officers, the remaining 2
MCS officers, namely, Respondents no. 17 and 19.
They were neither recommended by the DPC held on
17.02.2010 nor by the Review DPC held on
04.08.2012 but recommended by the last DPC held
on 04.12.2013. However, from the records it is seen,
as evident from the appointment order dated
23.02.2008, that these 2 Respondents, No. 17 and
19, were held to be deemed to have been appointed
to the posts of Jr. MCS (Sr. Grade) w.e.f. 27.03.2005.
The only issue to be considered now is, whether there
were sufficient vacancies to the posts of MCS Grade-
II for these 2 (two) Respondents also before the
petitioners were appointed as MCS Grade-II on 15th
December, 2012. If there were vacancies available
for promotion to the posts of MCS Grade-II at the time
of appointment of the petitioners on 15th December,
2012, the said 2 (two) Respondents can be also
granted the benefits of the retrospective seniority
w.e.f. 17.02.2010.
30. It is to be remembered that as far as the direct
recruits are concerned, their rights would start
accruing only from the moment they are borne in the
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cadre. In the present case, from 15th December,
2012 onwards and not prior to that. On the other
hand, as far as the promotees are concerned since
they were already in service though in a feeder grade,
their service conditions in the higher posts would
depend on a number of contingencies, viz.,
availability of vacancies, suitability, holding of higher
posts on officiating, adhoc, incharge basis etc. as the
case may be. For example, if a person in the lower
grade is allowed to hold the higher post on officiating
or in-charge basis or adhoc basis for a long time and
if he is found to be eligible and suitable to the higher
post by the competent DPC, grant of benefit of
regularization is not unknown in service
jurisprudence. Therefore, in the present case, if the
Respondents no. 17 and 19 had been also holding
the higher posts of MCS Grade-II either on officiating
or adhoc or incharge basis and there were vacancies
to the said posts of MCS Grade-II, the benefit of
giving them seniority w.e.f. 17.02.2010 by treating
them to be MCS Grade-II w.e.f. 17.02.2010 cannot be
said to be per se illegal.
31. It may be stated that the appointments of the
Respondents no. 17 and 19 as MCS Grade-II vide
order dated 6th December, 2013 w.e.f. 05.03.2012
and subsequent order dated 31st August, 2016 by
giving them retrospective by absorbing them to the
grade of MCS Grade-II w.e.f. 17.02.2010 have not
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been challenged in the writ petition. Since, these
orders have not been challenged, it cannot be said
that the rights of the petitioners have been prejudiced,
by operation of the impugned provisos. If the
aforesaid administrative orders giving the benefit of
appointment/absorption to the post of MCS Grade-II
w.e.f. 17.02.2010 have not been challenged by the
petitioners, it cannot be said that they are prejudiced
by the aforesaid impugned provisos challenged in the
present petition.
32. It may be also mentioned that the aforesaid
impugned provisos are to deal with certain specific
situations arising out of abolition of 31 posts of Jr.
MCS (Selection Grade) which are no more in
existence. As per Junior MCS Rules, 2007, there
were only 31 posts of Jr. MCS (Selection Grade) and
after the abolition of these 31 posts to Jr.MCS
(Selection Grade) vide Notification dated 05.03.2012,
the impugned provisos have practically become
redundant as the question of invoking these provisos
would not arise unless the posts of Jr. MCS (Selection
Grade) exist. As the posts of Jr.MCS (Selection
Grade) do not exist any more, the question of
invoking the said impugned provisos also does not
arise.
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33. Accordingly, for reasons stated above, this Court
is of the view that no case is made out for interfering
with the impugned provisos.
Accordingly, the petition stands dismissed."
As against the order dated 4.1.2018 passed in W.P.(C)
No.677 of 2016, the petitioners have not filed any appeal and thus,
the order dated 4.1.2018 attained finality.
39. As stated supra, the issue qua entitlement of counting
seniority by the private respondents and other similarly situated
persons with effect from 17.2.2010 has been considered by this
Court in W.P.(C) No.897 of 2013, wherein the petitioner Shivadas
Sharma claimed that he is entitled to be appointed to the post of MCS
Grade-II with effect from 17.2.2010. Since Shivadas Sharma has
been given the benefit only with effect from 5.3.2012 by the order
dated 6.12.2013, he has filed the said writ petition. This Court
considered the matter elaborately and allowed the writ petition
interfering with the orders dated 18.11.2013 and 6.12.2013 to the
extent as indicated in paragraph 18 of the said order. Paragraph 18
of the said order is extracted hereinbelow:
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"18. Accordingly, for the reasons discussed above,
this Court holds that the impugned orders dated
18.11.2013 and 6.12.2013 will have no bearing as
regards the right of the petitioner to be appointed to
the post of Junior MCS (Selection Grade) w.e.f.
17.2.2010 is concerned as he was not only
recommended by the first DPC for appointment to
Junior MCS (Selection Grade) but again by the
review DPC held on 4.8.2012 and also by the last
review DPC held on 4.12.2013 as such would be
entitled to be appointed as Junior MCS (Selection
Grade) w.e.f. 17.2.2010 when the first DPC held its
meeting. Further, the petitioner shall be deemed to
be absorbed as MCS Grade-II w.e.f. 17.2.2010 by
virtue of the amendment to Rule 16 of the Manipur
Civil Services Rules, 1965 as mentioned above.
Accordingly, to that extent indicated above, the
aforesaid impugned orders dated 18.11.2013 as well
as 6.12.2013 are interfered as regards the right of the
petitioner to be appointed/absorbed as MCS Grade-
II w.e.f. 17.2.2010 is concerned and to that extent
these order are held inapplicable to the petitioner.
The petitioner shall be entitled to be promoted to the
post of Junior MCS (Selection Grade) in terms of the
recommendation of the review DPC held on 4.8.2012
and be given the benefit of being absorbed to MCS
Grade-II w.e.f. 17.2.2010 by virtue of operation of the
said amendment to Rule 16."
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40. Some of the private respondents have filed W.P.(C)
No.612 of 2014 praying to promote them to MCS Grade-II with effect
from 17.2.2010 by extending the benefits of proviso to Rule 16(2)
read with Rule (d) of the MCS Rules, 1965. By the order dated
28.5.2015, W.P.(C) No.612 of 2014 was disposed of in the following
lines:
"While the writ petition is pending for consideration
by this court, a similar writ petition being W.P.(C)
No.897 of 2013 has been disposed of by this Hon'ble
Court vide judgment and order dated 28.04.2015. It
is agreed amongst the learned counsels appearing
for the parties that the present writ petition can be
disposed of in terms of the said judgment and order.
Accordingly, the present writ petition is disposed of in
terms of the said judgment and order dated
28.04.2015 passed by this court in W.P.(C) No.897
of 2013.
The respondent No.1 is directed to pass an
appropriate order as regards the benefits to be given
to the petitioner w.e.f. 17.02.2010 by virtue of
amendment of Rule 16(2) read with Rule 28(d) of the
MCS Rules, 1965 within a period of two weeks from
the date of receipt of a certified copy of this order."
41. As rightly argued by learned senior counsel for the
private respondents, unless the order passed in the aforesaid writ
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petitions are reviewed or superseded by a subsequent order and the
issue having been settled earlier cannot be re-opened at this belated
stage. That apart, the issue of counting of seniority of the private
respondents with effect from 17.2.2010 is barred by the principle of
res judicata as the same has also been the subject matter in
M.C.(WP No.253 of 2016 in W.P.(C) No.677 of 2016 and finally,
W.P.(C) No.677 of 2016 came to be dismissed and as against the
order passed in W.P.(C) No.677 of 2016, no appeal has been
preferred. In such view of the matter, it would not be appropriate to
restrain the official respondents from giving further promotion to the
private respondents. Therefore, the interim orders granted by this
Court in the instant writ petitions are liable to be vacated.
42. Learned senior counsel for the private respondents
argued that once the inter-se seniority of the employees had been
crystallized in accordance with the relevant Rules and acted upon by
giving promotion to the next higher post of MCS Grade-I, the same
could not be re-opened or revised to the detriment of the private
respondents when it was an admitted fact that the petitioners have
abandoned their rights to challenge the same in M.C.(WP(C)) No.253
of 2016 in W.P.(C) No.677 of 2016 and therefore, the petitioners are
barred from challenging the impugned orders in view of the doctrine
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of waiver of acquiescence. This Court finds some force in the said
submission made by learned senior counsel for the private
respondents. Moreover, the said submission is also supported by the
decision of the Hon'ble Supreme Court in the case of U.P.Jal Nigam
and another v. Jaswant Singh and another, (2006) 11 SCC 464,
wherein the Hon'ble Supreme Court held as under:
"6. The question of delay and laches has been
examined by this Court in a series of decisions and
laches and delay has been considered to be an
important factor in exercise of the discretionary
relief under Article 226 of the Constitution. When
a person who is not vigilant of his rights and
acquiesces with the situation, can his writ petition
be heard after a couple of years on the ground that
same relief should be granted to him as was
granted to person similarly situated who was
vigilant about his rights and challenged his
retirement which was said to be made on attaining
the age of 58 years. A chart has been supplied to
us in which it has been pointed out that about 9
writ petitions were filed by the employees of the
Nigam before their retirement wherein their
retirement was somewhere between 30-6-2005
and 31-7-2005. Two writ petitions were filed
wherein no relief of interim order was passed.
They were granted interim order. Thereafter a
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spate of writ petitions followed in which employees
who retired in the years 2001, 2002, 2003, 2004
and 2005, woke up to file writ petitions in 2005 and
2006 much after their retirement. Whether such
persons should be granted the same relief or not?
....
12. The statement of law has also been
summarised in Halsbury's Laws of England, para
911, p. 395 as follows:
"In determining whether there has been such
delay as to amount to laches, the chief points to be
considered are:
(i) acquiescence on the claimant's part; and
(ii) any change of position that has occurred on
the defendant's part.
Acquiescence in this sense does not mean
standing by while the violation of a right is in
progress, but assent after the violation has been
completed and the claimant has become aware of
it. It is unjust to give the claimant a remedy where,
by his conduct, he has done that which might fairly
be regarded as equivalent to a waiver of it; or
where by his conduct and neglect, though not
waiving the remedy, he has put the other party in
a position in which it would not be reasonable to
place him if the remedy were afterwards to be
asserted. In such cases lapse of time and delay
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are most material. Upon these considerations
rests the doctrine of laches."
43. As is evident from the materials produced by both sides,
the seniority position of the petitioners and the private respondents
in the Grade of MCS Grade-II has attained finality by acting on the
same while giving promotion in the Grade of MCS Grade-I to the
private respondents as well as to the petitioners and thus, it would
not be permissible to unsettle the settled seniority position after a
belated period.
44. In H.S.Vankani and others v. State of Gujarat and
others, (2010) 4 SCC 301, the Hon'ble Supreme Court held:
"38. Seniority is a civil right which has an important
and vital role to play in one's service career. Future
promotion of a government servant depends either
on strict seniority or on the basis of seniority-cum-
merit or merit-cum-seniority, etc. Seniority once
settled is decisive in the upward march in one's
chosen work or calling and gives certainty and
assurance and boosts the morale to do quality work.
It instils confidence, spreads harmony and
commands respect among colleagues which is a
paramount factor for good and sound
administration. If the settled seniority at the instance
of one's junior in service is unsettled, it may
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generate bitterness, resentment, hostility among the
government servants and the enthusiasm to do
quality work might be lost. Such a situation may
drive the parties to approach the administration for
resolution of that acrimonious and poignant
situation, which may consume a lot of time and
energy. The decision either way may drive the
parties to litigative wilderness to the advantage of
legal professionals both private and government,
driving the parties to acute penury. It is well known
that the salary they earn, may not match the
litigation expenses and professional fees and may
at times drive the parties to other sources of money-
making, including corruption. Public money is also
being spent by the Government to defend their
otherwise untenable stand. Further, it also
consumes a lot of judicial time from the lowest court
to the highest resulting in constant bitterness among
the parties at the cost of sound administration
affecting public interest.
39. Courts are repeating the ratio that the seniority
once settled, shall not be unsettled but the men in
power often violate that ratio for extraneous
reasons, which, at times calls for departmental
action. Legal principles have been reiterated by this
Court in Union of India v. S.K. Goel [(2007) 14 SCC
641 : (2009) 1 SCC (L&S) 873] , T.R. Kapoor v.
State of Haryana [(1989) 4 SCC 71 : 1989 SCC
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(L&S) 636 : (1989) 11 ATC 844] and Bimlesh
Tanwar v. State of Haryana [(2003) 5 SCC 604 :
2003 SCC (L&S) 737] . In view of the settled law the
decisions cited by the appellants in G.P. Doval case
[(1984) 4 SCC 329 : 1984 SCC (L&S) 767] ,
Prabhakar case [(1976) 2 SCC 890 : 1976 SCC
(L&S) 367] , G. Deendayalan [(1997) 2 SCC 638 :
1997 SCC (L&S) 749] and R.S. Ajara [(1997) 3 SCC
641 : 1997 SCC (L&S) 851] are not applicable to the
facts of the case.
......
48. The above legal principles clearly indicate that
the courts have to avoid a construction of an
enactment that leads to an unworkable, inconsistent
or impracticable results, since such a situation is
unlikely to have been envisaged by the rulemaking
authority. The rule-making authority also expects
rule framed by it to be made workable and never
visualises absurd results. The decision taken by the
Government in deputing the non-graduates (1979-
1981 batch) to a two-year training course and
graduates (1980-1981 batch) to a one year training
is in due compliance with Rule 10 of the 1969 Rules
and Rule 18 of the 1974 Rules and the seniority of
both the batches has been rightly settled vide
Orders dated 12-10-1982 and 5-3-1987 and the
Government has committed an error in unsettling
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the seniority under its proceedings dated 29-9-
1993."
45. Thus, it is clear that the seniority once settled should
not be unsettled at the instance of juniors in service. Therefore, the
decision in H.S.Vankani (supra) is squarely applicable to the case on
hand.
46. At this juncture, learned counsel for the petitioners
argued that in the earlier round of litigations, this Court never directed
the State Government to straightaway appoint/absorb the private
respondents to the post of MCS Grade-II with effect from 17.2.2010,
but only a direction was given to pass an appropriate order as
regards the benefits to be given to the petitioners with effect from
17.2.2010 by virtue of the amendment of Rule 16(2) read with Rule
28(d). According to learned counsel, in compliance of the said
directive of this Court, the State Government should have consulted
the Manipur Public Service Commission for holding a DPC for
appointment of the private respondents as mandated by Rule 5 of
the MCS Rules.
47. It is also the submission of learned counsel for the
petitioners that it was not mentioned under what provision of law the
private respondents were appointed/absorbed to the post of MCS
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Grade-II with effect from 17.02.2010. The said arguments of learned
counsel for the petitioners cannot be countenanced as while issuing
the impugned orders, the Commissioner (DP) has considered all the
aspects and then only issued the impugned orders. Therefore, this
Court cannot find fault in the impugned orders. On the other hand,
as stated supra, the petitioners are trying to unsettle the settled
seniority position with a belated period by filing the instant writ
petitions. The said approach adopted by the petitioners cannot be
entertained.
48. Indeed, the petitioners had slept over for a considerable
period and woke up one fine morning and knocked the doors of the
Court of law for redressal of their grievances. Normally, rights are to
be established at the earliest possible time or at least within a
reasonable period of time, particularly, in service matters, the
employees are very much aware of their Service Rules and
conditions. Ignorance of law can never be pleaded by the employees
of the State or Union. In the instant case, as apparent from the
records, the petitioners have made a challenge after a delay of about
more than three years on the eve of promotion to the next Grade of
MCS (JAG) and therefore, the same is not maintainable. Thus, the
present writ petitions are hit by delay and laches.
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49. In Eastern Coalfields Limited v. Duga Kumar, (2008) 14
SCC 295, the Hon'ble Supreme Court held:
"13. It was also submitted that admittedly sale deed
was executed in February 1989 by the respondent.
The Company paid the amount of consideration and
offered 1008 MT coal under the policy then in force
over and above the amount of consideration of
property. The writ petitioner accepted the offer,
release order was issued and the goods had been
delivered to him which the writ petitioner accepted
without any protest or objection. It was after about
10 years that a writ petition was filed which was
entertained and orders were passed by the High
Court. According to the appellant, there was gross
delay and laches on the part of the writ petitioner in
approaching the court and on that ground also, no
order could have been passed granting relief in
favour of the writ petitioner. Moreover, there was no
right-duty relationship between the writ petitioner
and the Company. The right of the writ petitioner
was limited to consideration in lieu of land sold to the
Company. The said amount had already been paid
to the writ petitioner. It was only on the basis of the
policy that coal was offered to the writ petitioner.
Even if it is assumed that the writ petitioner had right
to get coal as per the policy adopted by the
Company, the quantity to which the respondent was
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entitled was given to him. Thereafter there was no
cause for making grievance against the Company. It
is only on the basis of the 1996 Policy that additional
quantity was demanded by the writ petitioner by
filing writ petition in 1999 to which there was no
entitlement on the part of the writ petitioner. Even on
that ground, therefore, the petition was liable to be
dismissed.
.....
24. As to delay and laches on the part of the writ
petitioner, there is substance in the argument of
learned counsel for the appellant Company. It is well
settled that under Article 226 of the Constitution, the
power of a High Court to issue an appropriate writ,
order or direction is discretionary. One of the
grounds to refuse relief by a writ court is that the
petitioner is guilty of delay and laches. It is
imperative, where the petitioner invokes
extraordinary remedy under Article 226 of the
Constitution, that he should come to the court at the
earliest reasonably possible opportunity. Inordinate
delay in making the motion for a writ is indeed an
adequate ground for refusing to exercise discretion
in favour of the applicant."
50. It is reiterated that while dismissing W.P.(C) No.677 of
2016 on 4.1.2018, the Hon'ble Division Bench of this Court held that
giving retrospective seniority from 17.2.2010 was in view of the
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orders passed in W.P.(C) Nos.897 of 2013 and 612 of 2014 and
therefore, there cannot be any grievance against the granting of
retrospective seniority to the private respondents and others by the
petitioners. Nothing has been produced by the petitioners that as
against the order passed in W.P.(C) No.677 of 2016, they have
preferred appeal and the order dated 4.1.2018 was set aside. Unless
the order dated 4.1.2018 passed in W.P.(C) No.677 of 2016 is set
aside by a competent Court, the petitioners cannot have any
grievance against giving of retrospective seniority with effect from
17.2.2010 to the private respondents and other similarly placed
persons.
51. Since the issue of entitlement of counting seniority by
the private respondents and others with effect from 17.2.2010 has
been considered and granted pursuant to the orders passed in
W.P.(C) No.897 of 2013 and W.P.(C) No.612 of 2014 and the
seniority position of the petitioners and the private respondents in the
Grade of MCS Grade-II has attained finality by acting on the same
while giving promotion in the Grade of MCS Grade-I to the private
respondents as well as to the petitioners, it is not appropriate to re-
open the said issue now. That apart, the impugned orders are passed
by the official respondent based on the Court orders, which have
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attained finality. Furthermore, the petitioners have approached this
Court with delay and laches and they have also approached this
Court with unclean hands.
52. For the reasons stated above, this Court is of the view
that no case is made out by the petitioners for interfering with the
impugned orders and there is no merit in the writ petitions.
53. Accordingly, the writ petitions are dismissed. The
interim orders dated 18.10.2019 and 27.11.2019 passed in W.P.(C)
No.861 of 2019 and the interim orders dated 21.10.2019 and
27.11.2019 passed in W.P.(C) No.867 of 2019 stand vacated. No
costs.
54. Registry is directed to issue copy of this order to both
the parties through their WhatsApp/e-mail.
JUDGE
FR/NFR
Sushil
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