Manipur High Court
Sharma 10:24:54 +05'30' vs The State Of Manipur Represented ... on 26 May, 2022
Page |1
SHAMUR Digitally signed
by
AILATPA SHAMURAILATP IN THE HIGH COURT OF MANIPUR
AM SUSHIL
M SHARMA
AT IMPHAL
SUSHIL Date:
2022.05.27
WP(C) No. 592 of 2021
SHARMA 10:24:54 +05'30'
Shri Ahongshangbam Tomba Singh, aged about 58 years, S/o
(L). A. Ibomcha Singh of Irom Meijrao Maning Leikai, P.O. & P.S.
Wangoi, Imphal West District, Manipur-795009.
....PETITIONERS
-V E R S U S-
1. The State of Manipur represented by the Principal
Secretary/Commissioner/(Home) Government of Manipur,
Manipur Secretariat, Imphal-795001.
2. The Special Secretary/Commissioner, Department of
Personnel and Administrative Reforms (Personnel
Division), Government of Manipur, Manipur Secretariat,
Imphal-795001.
3. The Director General of Police, Government of Manipur,
Manipur Police Head Quarter, Babupara, Imphal-795001.
4. The Manipur Public Service Commission through its
Secretary, MPSC, North AOC, Imphal-795001.
.... RESPONDENTS
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioners :: Mr. HS Paonam, Sr. Advocate
For the Respondents :: Mr. H. Samarjit, GA
Mr. Kh. Athouba, GA for R-4.
WP(C) No. 592 of 2021
Page |2
Date of Hearing and
reserving Judgment &
Order :: 05.05.2022
Date of Judgment &
Order :: 26.05.2022
JUDGMENT AND ORDER
(CAV)
Heard Mr.H.S.Paonam, learned senior counsel for
the petitioner; Mr.H.Samarjit, learned Government Advocate for
the official respondents and Mr.Kh.Athouba, learned counsel for
the Manipur Public Service Commission.
2. This writ petition has been filed by the petitioner
seeking a writ of mandamus directing the respondents to
consider the case of the petitioner for granting notional promotion
to the grade of MPS Grade-II with effect from 2014-2015.
3. Mr. HS Paonam, the learned senior counsel for the
petitioner submitted that the petitioner was given appointment to
the post of MPS Grade-II on 9.10.2018 on the recommendation
of the Departmental Promotion Committee (DPC) held in
association with the Manipur Public Service Commission
(MPSC) and in that order, the name of the petitioner was found
WP(C) No. 592 of 2021
Page |3
place at Serial No.32. He would submit that upon perusal of the
DPC proceedings for promotion to the post of MPS Grade-II,
which has been provided under RTI application filed by the
petitioner, the petitioner came to learnt that he was
recommended at Serial No.1 against 17 vacancies which arose
in the year 2014-2015.
4. By placing reliance upon the Office Memorandum
dated 29.4.1999, which has been revised vide Office
Memorandum dated 15.5.2015, the learned senior counsel for
the petitioner submitted that a vacancy shall be filled in
accordance with the recruitment rules in force on the date of
vacancy, unless rules made subsequently have been expressly
given retrospective effect. According to the learned senior
counsel, it is obligatory on the part of the official respondents to
adhere to the time scheme laid down by the Department of
Personnel, Government of Manipur for making promotions
against the vacancies occurring during the course of a year.
5. The learned senior counsel urged that failure on the
part of the respondents in not holding the DPC as per the model
calendar resulted in the delayed promotion and that the petitioner
is denied for right to be considered for promotion in the year
WP(C) No. 592 of 2021
Page |4
2014-2015 i.e. the year against which petitioner is
recommended. Further, since the DPC was not held in the year
when the relevant vacancies arose due to sheer inaction on the
part of the respondents, the petitioner cannot be deprived of the
right to be considered for promotion with effect from the date of
vacancies in terms of the Office Memorandum dated 15.4.2014.
6. The learned senior counsel submitted that the
petitioner being aggrieved by the deprivation of his right to hold
higher post due to the delay in holding DPC for promotion to the
post of MPS Grade-II have already approached the authority for
considering his case for the post of Additional Superintendent of
Police on in-charge basis vide representation dated 14.10.2020.
However, the authority has rejected the representation of the
petitioner vide order dated 6.4.2021.
7. The learned senior counsel submitted that the
petitioner who was given promotion to the post of Inspector of
Police in the year 2008 become eligible for promotion to the post
of MPS Grade-II in the year 2010. If the DPC held in the year
2014-2015, the petitioner would have been given promotion in
that year. Due to non-holding of DPC for promotion to the post of
MPS Grade-II for the years despite having vacancies in the grade
WP(C) No. 592 of 2021
Page |5
of MPS Grade-II, the petitioner was denied his right for
consideration for promotion in time. In support, the learned senior
counsel has placed reliance upon the following decisions:
(1) Guman Singh v. State of Rajasthan, (1971) 2 SCC 452
(2) P.N.Premachandran v. State of Kerala, (2004) 1 SCC
(3) Amarjeet Singh v. Devi Ratan, (2010) 1 SCC 417
(4) State of UP v. Mahesh Narian, (2013) 4 SCC 169
(5) Kusheswar Prasad Singh v. State of Bihar, (2007) 11
SCC 447
(6) Oinam Brajachand Singh v. UoI, (2013) 2 GLT 814
8. Per contra, Mr. H. Samarjit, learned Government
Advocate submitted that the appointment to a higher post with
retrospective effect from a deemed or notional date of
appointment is given most sparingly and on sound reasoning and
foundation only when the DPC is found to be arbitrary or mala
fide in nature. However, in the instant case, the petitioner has
failed to prove the same and, therefore, the writ petition of the
petitioner is devoid of merit. He would submit that the prayer of
the petitioner for considering him as Additional SP on an in-
charge basis has been considered through his representation
and the same was rejected on 6.4.2021 as the petitioner was
appointed to MPS Grade-II vide order dated 9.10.2018 and has
WP(C) No. 592 of 2021
Page |6
only completed 2 years in MPS Grade-II as on 6.4.2021 and
therefore, he is not eligible for promotion to MPS Grade-II under
Rule 29(C)(i) of the Manipur Police Service Rules, 1965 (1st
Amendment 2013). He would submit that the further
representation of the petitioner dated 13.9.2021 to the Chief
Secretary praying to review the order dated 6.4.2021 and to
further allow him to hold the post of Additional SP on in-charge
basis was also rejected on 28.10.2021.
9. The learned Government Advocate further
submitted that the consideration of promotion is dependent on
the availability of vacancies and the seniority as published from
time to time and hence, promotion cannot be granted as a matter
of right.
10. The learned Government Advocate then submitted
that the proposal for filling up of 60 vacant posts of MPS Grade-
II falling within the vacancy years of 2011-12, 2012-13, 2013-14,
2014-15, 2016-17 and 2017-18 under the promotion quota from
the feeder posts of Inspectors/Subedars/Subedar Majors were
forwarded to the Department of Personnel only on 17.4.2018 in
view of the pending litigations being W.P.(C) No.726, 741 and
WP(C) No. 592 of 2021
Page |7
723 of 2016 before this Court, thereby delaying all promotion
process of all subordinate rank officers and hence there was
no inordinate delay on the part of the Department of Personnel
which forwarded the letter dated 9.7.2018 to the Secretary,
MPSC for convening DPC for appointment by promotion to the
post of MPS Grade-II in the Police Department, which were all
taken up in the most efficient manner. Therefore, there is no
question of inaction on the part of the respondents.
11. Mr. Kh. Athouba, the learned counsel appearing for
the MPSC submitted that it cannot be ascertained that the
petitioner will be recommended or appointed to the higher post
of MPS Grade-II just when he becomes eligible for promotion to
the higher post. It cannot also be said that the petitioner will get
recommended to the higher posts of MPS Grade-II from the year
2014-15 in case the DPC was convened in these years though
the above said DPC meeting held on 9.10.2018 recommended
the petitioner against the vacancy year 2014-15. Therefore, it
cannot be taken as granted that the petitioner would be promoted
to the higher posts of MPS Grade-II, in case, the DPC meeting
was held in the year 2014-15 keeping in view various factors like
seniority position, order of merit, determination of vacancies
WP(C) No. 592 of 2021
Page |8
arising due to retirement/ resignation/expiry etc. of the
incumbents holding the feeder posts.
12. The learned counsel for the MPSC further
submitted that the delay in holding DPC as alleged by the
petitioner was not caused by the MPSC and that the MPSC
convenes DPC only when proposal for the same is received by
them. The MPSC without any delay convened the DPC meeting
on 9.10.2018 after the proposal for appointment by promotion to
MPS Grade-II was received. Further, the MPSC has not received
any representation from the petitioner regarding the DPC for
appointment by promotion to MPS Grade-II.
13. The learned counsel for the MPSC urged that the
appointment of the petitioner by promotion to higher post of MPS
Grade-II is to be done by the Administrative Department and the
MPSC has nothing to do with the appointment and being only a
recommended body.
14. This Court considered the rival submissions and
also perused the materials available on record.
15. The petitioner was initially appointed as Sub-
Inspector of Police in Manipur Police Department on 26.9.1986
WP(C) No. 592 of 2021
Page |9
and subsequently, he was given promotion to the post of
Inspector of Police on 8.5.2008 and the next higher post for
promotion from the post of Inspector of Police is the post of MPS
Grade-II. The appointment to the post of MPS Grade-II is
governed by Manipur Police Service Rules, 1965. As per the
Recruitment Rules, 50% of the posts is to be filled by direct
recruitment and the remaining 50% by promotion from the cadre
of Inspector of Police, Inspector of Police (Legal)
and/Subedar/Subedar Majors of Manipur Rifles. Under the said
Recruitment Rules, an officer having 2 years regular service in
the post of Inspector of Police, Inspector of Police (Legal)
and/Subedar/Subedar Majors of Manipur Rifles are eligible for
promotion to the post of MPS Grade-II. The next higher post for
promotion from the post of MPS Grade-II is MPS Grade-I. As per
Manipur Service Rules, a member of the service who has put in
not less than years of regular service in the MPS Grade-II shall
be eligible for consideration for promotion for MPS Grade-I.
16. The grievance of the petitioner is that he was
promoted to the post of Inspector of Police in the year 2008 and
eligible for promotion to the post of MPS Grade-II in the year
2010 and he was given appointment to the post of MPS Grade-II
on 9.10.2018 on the recommendation of the DPC. The further
WP(C) No. 592 of 2021
P a g e | 10
grievance of the petitioner is that the perusal of the DPC
proceedings obtained under RTI, he came to know that he was
recommended against 17 vacancies which arose in the year
2014-15. If DPC held in the year 2014-15, the petitioner would
have been given promotion in that year. However, due to non-
holding of the DPC for promotion to the post of MPS Grade-II for
years despite having vacancies in the MPS Grade-II, the
petitioner was denied his right for consideration for promotion in
time. Thus, he prayed for consideration of his case for granting
notional promotion to the grade of MPS Grade-II with effect from
2014-2015.
17. Generally, Departmental Promotion Committees
would be convened at regular annual intervals to draw panels
occurring during the course of a year. DPCs may be convened
every year if necessary on a fixed date. Holding of DPC meeting
need not be delayed or postponed on the ground that
Recruitment Rules for the post are being revised/amended. A
vacancy shall be filled in accordance with the recruitment rules
in force on the date of vacancy, unless rules made subsequently
have been expressly given retrospective effect.
WP(C) No. 592 of 2021
P a g e | 11
18. As rightly argued by learned senior counsel for the
petitioner, it is obligatory on the part of the respondents to adhere
to the time schedule laid down by the Department of Personnel
for making promotions against the vacancies occurring during
the course of a year.
19. According to the learned senior counsel for the
petitioner, since the DPC was not held in the year when the
relevant vacancies arose due to the inaction on the part of the
respondents, the petitioner cannot be deprived of the right to be
considered for promotion with effect from the date of vacancies
in terms of the Office Memorandum dated 15.4.2014, wherein it
is provided that promotion should be prospective as it will be in
the conflict with the provision of Clause 3 of the said Office
Memorandum which requires holding of DPC every year. This
clause of giving prospective effect to promotion in terms of the
aforesaid Office Memorandum could not be made applicable in
the present case since it will amount to taking advantage of their
own wrong in not holding DPC regularly by the respondents.
20. On the other hand, learned Government Advocate
contended that the promotion are prospective in nature and the
consideration of the petitioner for retrospective promotion would
WP(C) No. 592 of 2021
P a g e | 12
disturb the fabric of administration and granting special
concession to the petitioner would be against statutory provisions
of law.
21. If this Court considers the aforesaid submissions
made by learned senior counsel for the petitioner and the learned
Government Advocate for the respondent State, this Court is of
the view that considering the importance of adhering to the Office
Memorandum issued by the State Government regarding
instruction for holding DPC and requirement of holding DPC
yearly subject to availability of vacancy for avoiding complicacies
and deprivation of right of the concerned eligible officer, it would
be in the best of interest of all concerned that whenever there is
a delay in holding DPC for promotion to the next higher post,
injury which may suffer by such officer in their career for
promotional avenue, consideration may also be made for
affording promotion not prospectively from the date of holding
DPC but from the date of availability of vacancy against which
the case of the office has been considered for promotion in the
manner as have been done in the other organized services.
Further, such a consideration will not prejudice the interest of any
third party as it will be an undisputed fact that consideration of
those officers like the petitioner for promotion to the next higher
WP(C) No. 592 of 2021
P a g e | 13
post was considered against the vacancies arise during the
recruitment year 2014-2015.
22. In the instant case, as stated supra, the petitioner
who was given promotion to the post of Inspector of Police in the
year 2008 become eligible for promotion to the post of MPS
Grade-II in the year 2010. Had the DPC held in the year 2014-
2015, the petitioner would have been given promotion in that year
and due to non-holding of the DPC for promotion to the post of
MPS Grade-II for years inspite of having vacancies in the grade
of MPS Grade-II, the petitioner was denied his right for
consideration for promotion in time. The arguments of learned
Government Advocate that the appointment to a higher post with
retrospective effect from a deemed or notional date of
appointment is given most sparingly and on sound reasoning and
foundation only when the DPC is found to be arbitrary in nature
and the petitioner has failed to prove the same and therefore, the
writ petition is not maintainable, cannot be countenanced, as the
respondent authorities have failed to explain the delay in sending
the proposal for filling up vacant posts. The only reason cited by
the respondent authorities is that in view of the pendency of the
writ petitions, the delay of all promotion process of all subordinate
rank officers occurred cannot be accepted since the respondent
WP(C) No. 592 of 2021
P a g e | 14
authorities have failed to produce any material to show that there
was an order of the Court not to fill up vacancies by promotion
and also conduction of DPC and that is why they have not
conducted the DPC in time.
23. It is settled law that no litigant can derive any benefit
from mere pendency of case in a Court of law. A party cannot be
allowed to take any benefit of its own wrongs. The maxim actus
curiae neminem gravabit, which means that the act of the Court
shall prejudice no one, becomes applicable in such a case. In
such a fact situation, the Court is under an obligation to undo the
wrong done to a party by the act of the Court. Thus, any
underserved or unfair advantage gained by a party invoking the
jurisdiction of Court must be neutralized, as the institution of
litigation cannot be permitted to confer any advantage on a suitor
from delayed action by the act of the Court.
24. It may not be proper to make an employee suffer on
account of delay on the part of the Department for not convening
the DPC in terms of their own Office Memorandum without any
valid reason.
25. In Guman Singh (supra), the Apex Court held thus:
WP(C) No. 592 of 2021
P a g e | 15
"40. Having due regard to the principles
stated above, we will not examine the scope
and contents of the Circular. The Circular
contains administrative instructions and it
does not profess to lay down anything else.
The Government have issued those
instructions "for the guidance of all
selection/promotion committee and
appointing authorities mentioned in the
Statutory Service Rules. These
administrative instructions and the Statutory
Service Rules should register be taken as a
complete code on the subject".
41. From the above extract it is clear that
in the matter of selection or promotion the
Committees concerned are enjoined not only
to have regard to the statutory rules under
which they function, but also to the
administrative instructions given in the
Circular. ...."
26. In Kusheshwar Prasad Singh (supra), the Apex
Court held:
"16. It is settled principle of law that a man
cannot be permitted to take undue and unfair
WP(C) No. 592 of 2021
P a g e | 16
advantage of his own wrong to gain
favourable interpretation of law. It is sound
principle that he who prevents a thing from
being done shall not avail himself of the non-
performance he has occasioned. To put it
differently, "a wrongdoer ought not to be
permitted to make a profit out of his own
wrong"
27. In the present case there was no reasonable ground
for not holding the DPC for consideration for promotion to the
post of MPS Grade-II in the year 2014-15 against various
vacancies available. Therefore, there is a delay on the part of the
respondent authorities for not convening the DPC in terms of the
Office Memorandum. The said finding of this Court is also
supported by the decision of the Hon'ble Apex Court in the case
of P.N.Premachandran (supra), wherein the Hon'ble Apex Court
observed that delay in convening DPC being administrative
lapse, promotees cannot be made to suffer for no fault on their
part. In the said case, the Apex Court also held that the appellant
therein has no right to question the retrospective promotion
granted to the private respondents.
WP(C) No. 592 of 2021
P a g e | 17
28. Retrospective promotion is permissible as per the
decision of the Apex Court in the case of Amarjeet Singh (supra),
wherein it has been held thus:
"27. The law permits promotion with
retrospective effect only in exceptional
circumstances when there has been some legal
impediment in making the promotions, like an
intervention by the court. An officer cannot be
granted seniority prior to his birth in the cadre
adversely affecting the seniority of other officers
who had been appointed prior to him. "The
latecomers to the regular stream cannot steal a
march over the early arrivals in the regular
queue." [Vide S.P.Kapoor (Dr.) v. State of H.P.,
(1981) 4 SCC 716, Shitla Prasad Shukla v. State
of U.P., AIR 1986 SC 1859 and Uttaranchal
Forest Rangers' Assn. (Direct Recruit) v. State
of U.P., (2006) 10 SCC 346."
29. In Oinam Brajachand Singh (supra), the Gauhati
High Court held as under:
WP(C) No. 592 of 2021
P a g e | 18
"8. Principle of natural justice and Prudent
logic demands, when a person is eligible for
a promotion and vacancy is available, he
should be given effect of his promotion from
the date of his eligibility. DPC could not be
held in time for which in my view petitioner
cannot be held responsible or victimized for
delay DPC. Therefore, I direct the
respondents authority that the petitioner's
promotion to be given with effect from the
date of his eligibility for promotion i.e.
1.6.2009 and he to get all the benefit from the
date of his eligibility i.e. 1.6.2009. We must
not forget that, a person is not promoted in
time, when he become eligible, it may
adversely effect his further promotion and
seniority too."
30. The aforesaid decisions are squarely apply to the
case on hand. It is not the case of the respondents that the
petitioner is not eligible for promotion at the relevant point of time.
As rightly held, for the nonholding of the DPC at the relevant point
WP(C) No. 592 of 2021
P a g e | 19
of time, the petitioner cannot be held responsible and he cannot
be victimized for the delayed DPC.
31. In the instant case, as stated above, due to the
inaction on the part of the Department to take up the process for
filling up the vacant posts of MPS Grade-II in time, even though
the petitioner was recommended against the vacancies of 2014-
2015, he got promoted with effect from 2018 only that is the date
on which his actual promotion to the grade of MPS Grade-II was
effected. In fact, the inaction on the part of the Department is
against the instructions/guidelines framed by the Department of
Personnel regarding holding of DPC for promotion. Therefore, in
order to compensate the loss of time in affording promotion, it
would be just and proper to direct the respondents to afford
notional promotion to the petitioner with effect from 2014-2015
that is the vacancy year against which the petitioner was
recommended.
32. Ordinarily, an employee is entitled to be considered
for promotion as per his seniority. If promotion is based on
seniority, as a matter of course, senior should be granted
promotion unless he is otherwise declared as unfit to be
promoted. If promotion to be next cadre is based on selection,
WP(C) No. 592 of 2021
P a g e | 20
employee is entitled to be considered as per seniority along with
all other eligible candidates by DPC and if DPC recommends, he
is entitled to be promoted.
33. It is also the fact that in case the DPC was held in
2014-2015, the petitioner would have completed 5 years of
regular service and, thus, would have become eligible for being
considered for the next promotion i.e. to the post of MPS Grade-
I. As per the version of the respondents themselves, there was
sufficient number of vacancies in the grade of MPS-II with effect
from 2011 onwards.
34. Due to the arbitrary exercise of power in not holding
the DPC on time by the authority, admittedly, the petitioner, will
retire below one rank than the one which ought to have been
made available during his long career in the Department due to
want of qualifying service. Therefore, in the interest of justice and
in equity to direct the respondent authorities to give notional
promotion to the petitioner with effect from 2014-2015.
35. It is reiterated that every employee is having right to
seek promotion as a matter of right in his/her service. According
to the respondents, there are 60 vacant posts of MPS Grade-II
falling within the vacancy years of 2011-12, 2012-13, 2013-14,
WP(C) No. 592 of 2021
P a g e | 21
2014-15, 2016-17 and 2017-28, but no DPC was held. As stated
supra, if DPC for the year 2014-15 is conducted, the petitioner
would have got a chance for promotion. However, only in the year
2018, the DPC was conducted for the entire vacancy for the
years 2011 to 2018 and given promotion to the petitioner.
Therefore, this Court is of the view that the petitioner is entitled
the notional promotion from 2014-2015 and also entitled for
counting his service for the next post of Additional
Superintendent of Police.
36. In the result,
a) the writ petition is allowed;
b) the respondents are directed to grant notional
promotion to the grade of MPS Grade-II with
effect from 2014-2015;
c) the said exercise is directed to be completed
within a period of three months from the date
of receipt of a copy of this order. No costs.
JUDGE
FR/NFR
Sushil
WP(C) No. 592 of 2021
