Manipur High Court
Md. Yakup Ali vs Md. Abdul Rajak on 2 March, 2022
KABORAM Digitally signed (Through video-conferencing)
by
BAM KABORAMBAM
SANDEEP SANDEEP SINGH
Date: 2022.03.02
IN THE HIGH COURT OF MANIPUR
SINGH 14:31:27 +05'30' AT IMPHAL
WA No. 44 of 2021
Md. Yakup Ali, aged about 55 years old, S/o (L) Md. Maniruddin
of Mayang Imphal Bengoon Maning, P.O. & P.S. Mayang Imphal,
Imphal West District, Manipur - 795132.
...Appellant
-Versus-
1. Md. Abdul Rajak, aged about 57 years, s/o Md. Mohamjan,
resident of Irong Chesaba, P.O. & P.S. Mayang Imphal,
District: Thoubal 795132.
... Respondent
2. State of Manipur, through the Commissioner/Secretary/
Principal Secretary (Home), Govt. of Manipur, Manipur
Secretariat Building, Babupara, PO & PS Imphal, Imphal
West, Manipur 795001.
3. The Commandant General, Home Guards, Government of
Manipur, Manipur Police Head Quarter, Babupara, P.O. &
P.S. Imphal, Imphal West District, Manipur - 795001.
4. The Commandant, Home Guards (VA), Government of
Manipur, Lamphelpat, P.O. & P.S. Lamphel, District Imphal
West, 795004
...Proforma Respondents
with
W.A. No. 50 of 2021
Md. Wahid Ali, aged about 51 years, S/o (L) Md. Ahmad Ali,
resident of Hatta Golapati, P.O. & P.S. Porompat, District Imphal
East, Manipur - 795005.
...Appellant
Vs.
1. Md. Yakup Ali, aged about 55 years, S/o Md. Maniruddin,
resident of Mayang Imphal Bengoon Maning, P.O. & P.S.
Mayang Imphal, Imphal West District, Manipur.
...Private respondent
2. The State of Manipur, through the Commissioner/Secretary/
Principal Secretary (Home), Government of Manipur, Manipur
Secretariat, P.O. & P.S. Imphal - 795001.
W.A. No. No. 44 of 2021 with
W.A. No. No. 50 of 2021 Page 1
3. The Commandant General, Home Guards, Govt. of Manipur,
Manipur Police Headquarters, Babupara, P.O. Imphal -
795001.
4. The Commandant, Home Guard (VA), Govt. of Manipur,
Lamphelpat, Imphal - 795004.
...Official Respondents
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR
HON'BLE MR. JUSTICE MV MURALIDARAN
For the appellant in W.A. No. 44 of 2021/ : Mr. H.S. Paonam, Sr. Advocate
respondent No. 1 in W.A. No. 50 of 2021
For the appellant in W.A. No. 50 of 2021 : Mr. Kh. Tarunkumar, Advocate
For the State respondents : Mr. Niranjan Sanasam, G.A
For respondent No. 1 in W.A. No. 44 of : Mr. BP Sahu, Sr. Advocate.
Date of reserving Judgment : 22.02.2022
Date of Judgment & Order : 02.03.2022
JUDGMENT & ORDER (CAV)
Sanjay Kumar (C.J.):
[1] By common Judgment & Order dated 16.08.2021, a learned
Judge of this Court disposed of three writ petitions, viz., W.P. (C) No. 17 of
2019, W.P. (C) No. 240 of 2019 and W.P. (C) No. 608 of 2019. Thereby, the
learned Judge set aside the orders of promotion dated 06.01.2019 and
17.07.2019 of Md. Wahid Ali and Md. Yakup Ali respectively and remitted the
matter to the authorities for consideration afresh within a time frame.
Aggrieved thereby, Md. Yakup Ali, respondent No. 4 in W.P. (C)
No. 608 of 2019, filed W.A. No. 44 of 2021, while Md. Wahid Ali, respondent
No. 4 in W.P. (C) No. 17 of 2019, filed W.A. No. 50 of 2021.
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W.A. No. No. 50 of 2021 Page 2
These matters pertain to the Manipur Home Guards, a uniformed
service. The sorry state of affairs prevailing in this service in relation to
promotions led to this litigation. The bone of contention presently is the
promotional post of Battalion Commander.
[2] W.P. (C) No. 17 of 2019 was filed by Md. Yakup Ali (wrongly
shown as Md. Yakub Ali in the judgment under appeal), a Division Commander
in the Manipur Home Guards. His grievance was that Md. Wahid Ali,
respondent No. 4 therein, a Company Commander, who had only been
assigned Division Commander duty on acting/temporary basis, was promoted
to the rank of Battalion Commander and posted as such at Bn-V, Bishnupur,
by order dated 06.01.2019 (wrongly shown as 06.01.2018 therein). Assailing
the said promotion, Md. Yakup Ali filed the writ petition. By interim order dated
17.01.2019, the order dated 06.01.2019 was suspended.
W.P. (C) No. 240 of 2019 was filed by Md. Tolen, a Division
Commander of Manipur Home Guards, on similar lines, challenging the
promotion of Md. Wahid Ali as a Battalion Commander. By interim order dated
18.03.2019, the impugned order dated 06.01.2019 was suspended.
W.P. (C) No. 608 of 2019 was filed by Md. Abdul Rajak, another
Division Commander of Manipur Home Guards. He stated that he was the
senior-most amongst the Division Commanders, standing at Sl. No. 1 of the
Seniority List dated 07.03.2018, whereas Md. Yakup Ali, respondent No. 4
therein, stood at Sl. No. 5. The cause for his grievance was that, after Md.
Yakup Ali filed W.P. (C) No. 17 of 2019 against Md. Wahid Ali's promotion,
order dated 17.07.2019 was issued promoting Md. Yakup Ali to the rank of
Battalion Commander and posting him as such at Bn-V, Bishnupur District,
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W.A. No. No. 50 of 2021 Page 3
subject to the outcome of W.P. (C) No. 17 of 2019. Md. Abdul Rajak assailed
this action on the part of the authorities, as he was senior to Md. Yakup Ali.
[3] Manipur Home Guards is a voluntary uniformed service
established in 1966 and it is presently governed by the Manipur Home Guards
Act, 1989 (hereinafter, 'the Act of 1989'). As per Section 2(b) thereof, 'Home
Guard' means a person who is appointed as such, and includes an officer
appointed under the Act of 1989. Section 3 deals with constitution of the Home
Guards and states that, by way of a notification in the Official Gazette, the
State Government shall constitute a volunteer body called the Manipur Home
Guards, the members of which shall discharge such functions and duties in
relation to protection of persons, security of property, public safety,
maintenance of essential services and preservation of public order and
tranquility as may be assigned to them. Section 4 provides for appointment of
a Commandant General of Home Guards. Section 6 deals with appointment of
Home Guards. Section 6(1) authorizes the Commandant to appoint such
number of persons as members of the Home Guards as may be determined by
the State Government and he may appoint any such member to any office of
command in the Home Guards. Section 6(2) states that, notwithstanding
anything contained in Section 6(1), the Commandant General may, subject to
the approval of the State Government, appoint any such member to any post
under his immediate control. Rule 7 of the Manipur Home Guards Rules, 1996
(for brevity, 'the Rules of 1996'), provides that the term of office of a member of
the Home Guards shall be three years but the person, once appointed, shall be
eligible for re-appointment. All the parties to this litigation seem to have been
so re-appointed and this rule is of no real significance.
W.A. No. No. 44 of 2021 with
W.A. No. No. 50 of 2021 Page 4
[4] Significantly, neither the Act of 1989 nor the Rules of 1996
provide any norms or procedure to regulate promotions within the service,
though a hierarchy is to be established and maintained. Rue 11 of the Rules of
1996 provides the hierarchy. Rule 11(1) states that, in addition to the
Commandant General, the Home Guards should have the following regular
staff for an area: (i) Commandant; (ii) Deputy Commandant; (iii) Adjudant; and
(iv) Quarter Master. Rule 11(2) states that the following Commanders should
be appointed from amongst the members: - (i) Division Commander (one each
for every three Companies); (ii) Company Commander; (iii) Senior Platoon
Commander or Company Second-in-Command; (iv) Platoon Commander;
(v) Company Sergeant Major; (vi) Company Q.M. Sergeant; (vii) Platoon
Sergeant; and (viii) Section Leader.
[5] Thus, Division Commanders are superior in rank to Company
Commanders. These superior posts would ordinarily form the feeder category
for promotion to the rank of Battalion Commander, notwithstanding the wide
discretion created under Section 6 of the Act of 1989. Unfortunately, taking
advantage of the absence of set rules and procedures, the authorities have
been resorting to an arbitrary pick-and-choose policy for promoting persons of
their choice to higher posts without reference to rank or seniority. In point, the
case on hand demonstrates blatant discrimination by them yet again.
The letter dated 07.03.2018 addressed by the Commandant,
Home Guards (VA), Manipur, to the Additional Director General of Police (HG),
Manipur, sets out the sanctioned strength; the posted strength; and the
vacancies in the ranks of Battalion Commander, Division Commander and
Company Commander in the Home Guards. Therein, the sanctioned strength
of Battalion Commanders was stated to be 5 and as 4 persons were already
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posted as such, one vacancy remained. The sanctioned strength of Division
Commanders was shown as 8 and all 8 posts were filled up. The sanctioned
strength of Company Commanders was 24 and the posted strength was
shown as 17 at that time, leaving 7 vacancies. The seniority list of Division
Commanders was also furnished therein:
Sl. No Hg. No. Rank Name Promotion order and date
(1) (2) (3) (4) (5)
1. 816 D.C. Md. Abdul Rajak No. 1/15/98-Ops-1 (HG)/6495 dt 20/11/2002
2. 291 D.C. Md. Tolen No. 1/13/2015-DCG(HG)/12395dt. 02/08/2016
3. 82206 D.C. Md. Abdul Salam No. 1/13/2015-DCG(HG)12395d dt./02/08/2016
4. 79179 D.C. S. Sanatomba Singh No. 1/13/2015-DCG(HG)/12395 dt. 02/08/2016
5. 18015 D.C. Md. Yakup Ali No. 1/13/2015-DCG(HG)112754 dt. /09/08/2016
6. 79122 D.C. Md. Basir Ahamad No. 1/13/2015-DCG(HG)/12395dt. 12/08/2016
7. 84071 D.C. Y. Tejmala Devi No. 1/13/2015-DCG(HG)/5027dt. 11/05/2017
8. 841566 D.C. Th. Ingocha Singh No. 1/13/2015-DCG(HG)/3514dt. 18/05/2018
[6] It is clear from the aforestated seniority list that Md. Wahid Ali did
not even figure amongst the Division Commanders as on 07.03.2018, though
he was assigned Division Commander duties on acting/unpaid temporary basis
on 19.09.2016 itself. It may also be noted that the seniority of Division
Commanders was indicated on the strength of the orders of their actual
promotion as such. Md. Abdul Rajak was the first such promotee, under order
dated 20.11.2002, while Md. Tolen was promoted on 02.08.2016 and Md.
Yakup Ali was promoted later on 09.08.2016.
Surprisingly, the promotion order dated 06.01.2019 in favour of
Md. Wahid Ali was issued by the Commandant General with such
carelessness and lack of application of mind that the wrong date '06.01.2018'
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appears therein at not one but two places. Further, it describes Md. Wahid Ali
as a Division Commander, which he obviously was not.
[7] As already noted supra, neither the Act of 1989 nor the Rules of
1996 provide for any procedure to be followed while making promotions within
the Home Guards service and it appears to have been left completely to the
discretion of the Commandant General/Commandant. Rule 7 of the Rules of
1996, which prescribes a term of office of three years does not entitle the
authorities to desist from framing guidelines for making promotions and
continue to make subjective choices. This Court is informed that a Committee
has now been constituted by the State Government to frame appropriate
guidelines for effecting promotions within the Home Guards but that exercise is
yet to yield fruitful results. We trust that the Government will pursue this
exercise in right earnest so that proper guidelines are framed at least now for
effecting promotions within this uniformed service which, as is the case with
any uniformed service, requires a high degree of discipline and morale. It
would not be in the interest of the service to perpetuate arbitrary and
discriminatory promotions, without reference to rank and seniority.
[8] In any event, absence of guidelines, by itself, would not clothe
the authorities with whimsical and arbitrary power to pick and choose their own
blue-eyed boys for higher posts. The discretion vesting in them under Sections
6(1) and 6(2) of the Act of 1989 would have to be exercised judiciously and not
subjectively, bereft of rhyme or reason, based purely on nepotistic tendencies.
As Lord John Dalberg-Acton put it succinctly more than two centuries ago,
power tends to corrupt and absolute power corrupts absolutely! Despotic
exercise of such power is manifest in the case on hand. The promotion order
dated 06.01.2019 does not even mention as to what inspired the Commandant
General to choose Md. Wahid Ali, superseding all his superiors in the rank of
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W.A. No. No. 50 of 2021 Page 7
Division Commander. Notably, a similar issue had arisen for consideration in
W.P. (C) No. 2005 of 2001 filed by one Md. Rashimuddin, a Company
Commander, who was also granted an out-of-turn promotion as a Battalion
Commander but the same was cancelled thereafter. Significantly, an affidavit-
in-opposition was filed by the Joint Secretary (Home), Government of Manipur,
stating that the Commandant had issued the order promoting him as a
Battalion Commander without considering the seniority position. As per the
Joint Secretary, the post of Division Commander was the feeder post for
promotion as a Battalion Commander and he asserted that the Government
was of the opinion that giving an out-of-turn promotion to the petitioner therein
by superseding eight Division Commanders and sixteen Company
Commanders was quite improper and illegal. He accordingly justified the
cancellation of the said promotion order. As is the case with Md. Wahid Ali, the
petitioner therein was also a Company Commander who had not been
promoted as a Division Commander.
[9] The above affidavit-in-opposition makes it clear that at that point
of time, seniority and the feeder category were both given precedence by the
authorities. Having committed themselves to such a stand before this Court by
way of a sworn affidavit, it is not open to them to backtrack and seek to justify
the unmerited promotion of Md. Wahid Ali, a Company Commander, who was
only given an acting/unpaid temporary charge as a Division Commander, to
the higher rank of Battalion Commander, by overlooking his superiors and
seniors in the category of Division Commander.
[10] While so, this Court is informed that, as on date, four vacancies
are available in the rank of Battalion Commander. A copy of the letter dated
13.09.2021 addressed to the Special Secretary (Home), Government of
Manipur, by the Additional Director General of Police (Home Guards), Manipur,
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is placed on record. Therein, the Additional Director General of Police referred
to the direction of the learned Judge in the judgment under appeal to the effect
that the Commissioner/Secretary/Principal Secretary (Home), Government of
Manipur, should take a conscious decision for filling up the posts of Battalion
Commander in accordance with law and by considering all eligible candidates,
including the petitioners in the three writ petitions. He then went on to state that
the posts of Battalion Commander at Imphal West; Thoubal; Bn. HQ-1
Lamphel; and Bishnupur; were vacant. He annexed the seniority list prepared
by the Commandant, Home Guards, under the letter dated 07.03.2018, and
requested the Home Department to approve the filling up of the subject posts,
based on the said seniority list.
Mr. Niranjan Sanasam, learned Government Advocate, would
inform this Court that Md. Abdul Rajak, Md. Tolen and Md. Yakup Ali were all
within the zone of consideration, as on the date of the letter, for appointment to
the available vacant posts of Battalion Commander.
[11] Coming to W.A. No. 50 of 2021, Mr. Kh. Tarunkumar, learned
counsel, appearing for Md. Wahid Ali, would contend that the W.P. (C) No. 17
of 2019 filed by Md. Yakup Ali was liable to be rejected on the ground that he
failed to approach the Court with clean hands. This Court is however of the
opinion that such technicalities cannot be pressed into service to justify and
perpetuate the wholly illegal promotion of Md. Wahid Ali at the cost of his
superiors and seniors in the rank of Division Commander. Further, the very
same promotion order dated 06.01.2019 of Md. Wahid Ali was subjected to
challenge in W.P(C). No. 240 of 2019, but no appeal has been filed in relation
to that writ petition. Technicalities, if any, are therefore of no consequence.
Further, though Mr. Kh. Tarunkumar, learned counsel, would
endeavour to justify his client's promotion order dated 06.01.2019 by relying on
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W.A. No. No. 50 of 2021 Page 9
Section 6(2) of the Act of 1989, there is no evidence of the State Government's
approval having been obtained, which is a condition precedent. Though the
learned counsel would contend that the Chief Minister's approval would suffice
for this purpose, no material has been produced in proof of such approval
either. In any event, it is not open to the authorities to blow hot and cold to suit
their own convenience and they cannot be permitted to resile from the stand
taken earlier before this Court. The case law cited by the learned counsel is
therefore eschewed from consideration.
In consequence, W.A. No. 50 of 2021 filed by Md. Wahid Ali is
bereft of merit and is accordingly dismissed.
W.A. No. 44 of 2021 filed by Md. Yakup Ali is disposed of, taking
note of the letter dated 13.09.2021, and directing the respondent authorities to
undertake the exercise of filling up the four vacant posts in the rank of Battalion
Commander in keeping with the seniority of Division Commanders, as
communicated under the letter dated 07.03.2018, and in terms of the stand
taken by them in the earlier writ petition, viz., W.P. (C) No. 2005 of 2001. This
exercise shall be completed within one month from the date of receipt of a
copy of this order.
In the circumstances, there shall be no order as to costs.
A copy of the order shall be supplied online or through whatsapp to
the learned counsel for the parties.
JUDGE CHIEF JUSTICE
FR
Sandeep
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