Manipur High Court
Shri Hijam Shantikumar Singh vs N. Jasobanta Singh Aged About 58 ... on 28 March, 2023
SHAMURAILATPAM SUSHIL Digitally signed by SHAMURAILATPAM
SUSHIL SHARMA
SHARMA Date: 2023.03.28 17:18:53 +05'30'
Page |1
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
MC (WP(C)) No.46 of 2023
Ref:- WP(C) No. 49 of 2023
Shri Hijam Shantikumar Singh, aged about 60 years,
S/o (L) Hijam Yaima Singh, resident of Sagolband
Yengkhom Leriak, P.O. & P.S. Lamphel, District
Imphal west, Manipur- 795004.
... Applicant
-Versus-
1. N. Jasobanta Singh aged about 58 years, S/o (L) N.
Joy Singh of Keishampat Mutum Leikai, P.O. & P.S.
Imphal, Imphal West District-795001,
2. S. Priyananda Singh, aged about 58 years, S/o (L) S.
Ibotombi Singh, of Nagamapal Chungkham Leirak,
P.O. Imphal, P.S.- Imphal, Imphal West District,
Manipur-795001.
3. Th. Bimol Singh, aged about 55 years, S/o (L) Th.
Dwijamani Singh of Ward No. 3 Ningthoukhong, P.O.
& P.S. Bishnupur, Bishnupur District Manipur.
...... Respondents
4. The State of Manipur through the Chief
Secretary(DP), Government of Manipur, Manipur
Secretariat South Block, Babupara, P.O. & P.S.
Imphal-795001.
5. The Principal Secretary/Commissioner /Secretary
(Power), Government of Manipur, Manipur
Secretariat, Babupara, Imphal West-795001.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
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6. Ng. Subhachandra Singh, presently functioning as re-
engaged MD, MSPDCL, 3rd Floor, New Directorate
Building, Near 2nd M.R. Gate, Imphal Dimapur Road,
Imphal, Manipur - 795001.
......Proforma Respondents
MC (WP(C)) No.23 of 2023
Ref:- WP(C) No. 49 of 2023
Ng. Subhachandra Singh, aged about 60 years by
occupation Managing Director, MSPDCL,
Government of Manipur, a permanent residence of
Khabam Chumbreithong, Imphal East District.
... Applicant
-Versus-
1. N. Jasobanta Singh aged about 58 years, S/o (L) N.
Joy Singh of Keishampat Mutum Leikai, P.O. & P.S.
Imphal, Imphal West District-795001.
2. S. Priyananda Singh, aged about 58 years, S/o (L) S.
Ibotombi Singh, of Nagamapal Chungkham Leirak,
P.O. Imphal, P.S.- Imphal, Imphal West District,
Manipur-795001.
3. Th. Bimol Singh, aged about 55 years, S/o (L) Th.
Dwijamani Singh of Ward No. 3 Ningthoukhong, P.O.
& P.S. Bishnupur, Bishnupur District Manipur.
4. State of Manipur through the Chief Secretary(DP),
Government of Manipur, Manipur Secretariat South
Block, Babupara, P.O. & P.S. Imphal-795001.
5. Principal Secretary/Commissioner/Secretary (Power),
Government of Manipur, Manipur Secretariat,
Babupara, Imphal West-795001.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
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6. Shri Hijam Shantikumar Singh, aged about 60 years,
S/o (L) Hijam Yaima Singh, resident of Sagolband
Yengkhom Leirak, PO & PS Lamphel, Imphal West
District, Manipur- 705001.
...... Respondents
MC (WP(C)) No.24 of 2023
Ref:- WP(C) No. 49 of 2023
Ng. Subhachandra Singh, aged about 60 years by
occupation Managing Director, MSPDCL,
Government of Manipur, a permanent residence of
Khabam Chumbreithong, Imphal East District.
... Applicant
-Versus-
1. N. Jasobanta Singh aged about 58 years, S/o (L) N.
Joy Singh of Keishampat Mutum Leikai, P.O. & P.S.
Imphal, Imphal West District-795001.
2. S. Priyananda Singh, aged about 58 years, S/o (L) S.
Ibotombi Singh, of Nagamapal Chungkham Leirak,
P.O. Imphal, P.S.- Imphal, Imphal West District,
Manipur-795001.
3. Th. Bimol Singh, aged about 55 years, S/o (L) Th.
Dwijamani Singh of Ward No. 3 Ningthoukhong, P.O.
& P.S. Bishnupur, Bishnupur District Manipur.
4. State of Manipur through the Chief Secretary(DP),
Government of Manipur, Manipur Secretariat South
Block, Babupara, P.O. & P.S. Imphal-795001.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
Page |4
5. Principal Secretary/Commissioner/Secretary (Power),
Government of Manipur, Manipur Secretariat,
Babupara, Imphal West-795001.
6. Shri Hijam Shantikumar Singh, aged about 60 years,
S/o (L) Hijam Yaima Singh, resident of Sagolband
Yengkhom Leirak, PO & PS Lamphel, Imphal West
District, Manipur- 705001.
...... Respondents
MC (WP(C)) No.50 of 2023
Ref:- WP(C) No. 49 of 2023
1. The State of Manipur through its Chief Secretary(DP),
Government of Manipur, Manipur Secretariat South
Block, Babupara, P.O. & P.S. Imphal, Imphal West
District, Manipur, PIN: 795001,
2. The Principal Secretary/Commissioner /Secretary
(Power), Government of Manipur, Manipur
Secretariat, Babupara, Imphal West-795001.
......Applicants.
-Versus-
1. N. Jasobanta Singh aged about 58 years, S/o (L) N.
Joy Singh of Keishampat Mutum Leikai, P.O. & P.S.
Imphal, Imphal West District-795001.
2. S. Priyananda Singh, aged about 58 years, S/o (L) S.
Ibotombi Singh, of Nagamapal Chungkham Leirak,
P.O. Imphal, P.S.- Imphal, Imphal West District,
Manipur-795001.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
Page |5
3. Th. Bimol Singh, aged about 55 years, S/o (L) Th.
Dwijamani Singh of ward no. 3 Ningthoukhong, P.O.
& P.S. Bishnupur, Bishnupur District Manipur.
......Respondents.
4. Shri Hijam Shantikumar Singh aged about 60 years,
S/o (L) Hijam Yaima Singh, resident of Sagolband
Yengkhom Leriak, P.O. & P.S. Lamphel, District
Imphal West, Manipur- 795004.
5. Ng. Subhachandra Singh, presently functioning as re-
engaged MD, MSPDCL, 3rd Floor, New Directorate
Building, Near 2nd M.R. Gate, Imphal, Dimapur Road,
Imphal, Manipur - 795001.
.......Proforma Respondents.
MC (WP(C)) No.51 of 2023
Ref:- WP(C) No. 49 of 2023
Ng. Subhachandra Singh, presently functioning as re-
engaged MD, MSPDCL, 3rd Floor, New Directorate
Building, Near 2nd M.R. Gate, Imphal, Dimapur Road,
Imphal, Manipur - 795001.
... Applicant
-Versus-
1. N. Jasobanta Singh aged about 58 years, S/o (L) N.
Joy Singh of Keishampat Mutum Leikai, P.O. & P.S.
Imphal, Imphal West District-795001.
2. S. Priyananda Singh, aged about 58 years, S/o (L) S.
Ibotombi Singh, of Nagamapal Chungkham Leirak,
P.O. Imphal, P.S.- Imphal, Imphal West District,
Manipur-795001.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
Page |6
3. Th. Bimol Singh, aged about 55 years, S/o (L) Th.
Dwijamani Singh of Ward No. 3 Ningthoukhong, P.O.
& P.S. Bishnupur, Bishnupur District Manipur.
...... Respondents
4. The State of Manipur through the Chief
Secretary(DP), Government of Manipur, Manipur
Secretariat South Block, Babupara, P.O. & P.S.
Imphal-795001.
5. The Principal Secretary/Commissioner/Secretary
(Power), Government of Manipur, Manipur
Secretariat, Babupara, Imphal West-795001.
6. Shri Hijam Shantikumar Singh, aged about 60 years,
S/o (L) Hijam Yaima Singh, resident of Sagolband
Yengkhom Leirak, PO & PS Lamphel, Imphal West
District, Manipur- 705001.
...... Proforma Respondents
MC (WP(C)) No.56 of 2023
Ref:- WP(C) No. 49 of 2023
1. The State of Manipur through its Chief Secretary(DP),
Government of Manipur, Manipur Secretariat South
Block, Babupara, P.O. & P.S. Imphal, Imphal West
District, Manipur, PIN: 795001,
2. The Principal Secretary/Commissioner /Secretary
(Power), Government of Manipur, Manipur
Secretariat, Babupara, Imphal West-795001.
......Applicants.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
Page |7
-Versus-
1. N. Jasobanta Singh aged about 58 years, S/o (L) N.
Joy Singh of Keishampat Mutum Leikai, P.O. & P.S.
Imphal, Imphal West District-795001.
2. S. Priyananda Singh, aged about 58 years, S/o (L) S.
Ibotombi Singh, of Nagamapal Chungkham Leirak,
P.O. Imphal, P.S.- Imphal, Imphal West District,
Manipur-795001.
3. Th. Bimol Singh, aged about 55 years, S/o (L) Th.
Dwijamani Singh of ward no. 3 Ningthoukhong, P.O.
& P.S. Bishnupur, Bishnupur District Manipur.
......Writ Petitioners/
Principal Respondents.
4. Shri Hijam Shantikumar Singh aged about 60 years,
S/o (L) Hijam Yaima Singh, resident of Sagolband
Yengkhom Leriak, P.O. & P.S. Lamphel, District
Imphal West, Manipur- 795004.
5. Ng. Subhachandra Singh, presently functioning as re-
engaged MD, MSPDCL, 3rd Floor, New Directorate
Building, Near 2nd M.R. Gate, Imphal, Dimapur Road,
Imphal, Manipur - 795001.
.......Proforma Respondents.
BEFORE
HON'BLE THE ACTING CHIEF JUSTICE M.V. MURALIDARAN
For the Applicants in
MC(WP(C)) No. 46 of 2023 :: Mr. N. Kumarjit, Sr. Adv
Mr. N. Zequeson, Adv.
For the Applicants in
MC(WP(C)) No. 56 of 2023 &
MC(WP(C)) No. 50 of 2023 :: Mr. M. Devananda, Addl. AG
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
Page |8
Ms. N. Jyotsana, Adv.
For the Applicants in
MC(WP(C)) No. 51 of 2023;
MC(WP(C)) No. 23 of 2023 &
MC(WP(C)) No. 24 of 2023 :: Mr. S. Biswajit, Sr. Adv.
For the Respondents in
MC(WP(C)) No. 56 of 2023;
MC(WP(C)) No. 23 of 2023;
MC(WP(C)) No. 24 of 2023 &
MC(WP(C)) No. 46 of 2023 :: Mr. HS Paonam, Sr. Adv.,
Mr. A. Golly, Adv
For the Respondents in
MC(WP(C)) No. 51 of 2023 :: Mr. N. Kumarjit, Sr. Adv.
Mr. N. Zequeson, Adv.
For the Respondents in
MC(WP(C)) No. 50 of 2023 :: Mr. HS Paonam, Sr. Adv.,
Mr. A. Golly, Adv
For the Respondents in
MC(WP(C)) No. 49 of 2023 :: Mr. N. Kumarjit, Sr. Adv.
Mr. N. Zequeson, Adv.
Date of Hearing and
reserving Judgment & Order :: 20.03.2023
Date of Judgment & Order :: 29.03.2023
JUDGMENT AND ORDER
(CAV)
MC (WP(C)) No.46 of 2023 has been filed by the
applicant Hijam Shantikumar Singh to vacate the interim order
dated 25.1.2023 passed in W.P.(C) No.49 of 2023.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
Page |9
2. MC (WP(C)) No.23 of 2023 has been filed by the
applicant Ng. Subhachandra Singh to permit him to challenge the
maintainability of the writ petition. He has also filed MC (WP)
No.24 of 2023 praying to dismiss the writ petition in limine with
exemplary costs. The very same applicant also filed MC (WP(C))
No.51 of 2023 praying to vacate the interim order dated
25.1.2023 granted in the writ petition.
3. MC (WP(C)) No.50 of 2023 has been filed by the
Chief Secretary (DP), and the Principal Secretary (Power),
Government of Manipur to dismiss the writ petition, as the writ
petitioners have no locus standi to file the writ petition. The
aforesaid officials have also filed MC (WP(C)) No.56 of 2023
praying to vacate the interim order dated 25.1.2023 in W.P.(C)
No.49 of 2023.
4. Since the prayers made in all the miscellaneous
cases and the point for consideration are one and the same, they
are taken up together and disposed of by this common order.
5. The applicants in MC (WP) Nos.50 and 56 of 2023
are the respondents 1 and 2; the applicant in MC (W) No.46 of
2023 is the third respondent and the applicant in MC (WP)
Nos.23, 24 and 51 of 2023 is the fourth respondent in the writ
petition.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 10
6. For the sake of convenience, the parties are
referred to as per their array in the writ petition.
7. Heard Mr.H.S.Paonam, learned senior counsel
assisted by Mr.A.Golly, learned counsel for the writ petitioners;
Mr.M.Devananda, learned Additional Advocate General for the
respondents 1 and 2; Mr.N.Kumarjit, learned senior counsel for
the third respondent and Mr.Biswajit, learned senior counsel for
the fourth respondent.
8. The writ petition has been filed by the petitioners to
quash the impugned letter No.Court-1/186/2022-DP-DP, dated
5.1.2023 addressed by the Deputy Secretary (DP), Government
of Manipur to the Deputy Secretary (Power), Government of
Manipur, whereby requesting to take up necessary action for
extending the service of the respondents 3 and 4 after retirement
and its subsequent and consequential action. In the writ petition,
the petitioners have also sought an interim order staying the
impugned letter and its subsequent and consequential action
during the pendency of the writ petition.
9. On 20.1.2023, when the writ petition was taken up
for admission, this Court passed the following order:
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 11
"[1] Heard Mr.A.Golly, learned counsel for the
petitioner and Mr. N.Kumarjit, learned senior
counsel for the respondents.
[2] Mr.N.Kumarjit, learned senior counsel for the
respondents has filed a Caveat being Caveat
No.9 of 2023 and argued the case.
[3] Mr.A.Golly, learned counsel for the petitioner
argued the case in detail and sought for
admission of the writ petition and for granting
interim order whereas Mr. N.Kumarjit, learned
senior counsel for the State respondents
argued the case in detail and strongly objected
in granting interim order.
[4] Therefore, post this matter for order on
25.01.2023 as first item for passing order for
consideration of admission and granting of
interim order."
10. On 25.1.2023, this Court, upon hearing the learned
counsel appearing for the parties, admitted the writ petition and
also granted interim stay of the impugned letter dated 5.1.2023.
Paragraphs 20 to 22 of the order dated 25.1.2023 are relevant
and the same is quoted hereunder:
"[20] Considering the above, I am inclined to
pass the following orders:
1) This writ petition is admitted.
2) Since Mr.N.Kumarjit, learned senior
counsel takes notice for respondent
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 12
No.3 and hence, no formal notice is
required. Time granted for filing
counter affidavit by respondent No.3.
3) Mr.S.Niranjan, learned Government
Advocate takes notice on behalf of the
Respondents No.1 and 2 and
Mr.M.Ibohal, learned counsel take
notice for respondent No.4.
Therefore, no formal notice is required
for the Respondents No.1, 2 and 4.
The respondents No.1, 2 and 4 are
directed to file counter affidavit.
[21] Post the matter on 09.02.2023.
[22] Till such time, there shall be an order of
interim stay of the impugned letter No.COURT-
1/186/2022-DP-DP dated 05.01.2023 and its
subsequent and consequential action till next
date."
11. Questioning the maintainability of the writ petition,
the learned Additional Advocate General appearing for the
respondents 1 and 2 submitted that the writ petitioners were
promoted to the post of Superintending Engineer (Elect) by
promotion on 7.4.2022 after availing one-time relaxation of
recruitment rules of Superintending Engineer (Elect) and in the
promotion order dated 7.4.2022, it has been mentioned that they
will be on probation for period of two years. Since the probation
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 13
period of the writ petitioners will be completed on 7.4.2024 and
the next higher post from Superintending Engineer (Elect) in
Power Department, Manipur is Additional Chief Engineer (Elect)
and then to the post of Chief Engineer, they are not entitled to
the claim the post of Chief Engineer.
12. The learned Additional Advocate General would
submit that the writ petitioners are not eligible for promotion to
the post of Additional Chief Engineer (Elect) and the Chief
Engineer (Elect) in terms of the recruitment rules and, as such,
they have no locus standi to challenge the appointment/re-
engagement of the private respondents 3 and 4 to the post of
Chief Engineer/Power & ED(Tech)/MSPDCL and MD/MSPCL
and, moreover, the writ petitioners are not aggrieved parties to
the re-engagement of the respondents 3 and 4.
13. The learned Additional Advocate General further
submitted that the writ petitioners are yet to complete one year of
service in the grade of Superintending Engineer (Elect) and as
per the recruitment rules for the post of Additional Chief Engineer
(Elect), a Superintending Engineer (Elect) is eligible for
promotion to the post of Additional Chief Engineer (Elect) after 5
years of regular service and thereafter, the Additional Chief
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 14
Engineer (Elect) is eligible for promotion to the Chief Engineer
(Elect) after 3 years of regular service.
14. The learned Additional Advocate General urged
that after the decision of the State Cabinet and also finding that
there was no eligible person to hold the post of the Chief
Engineer (Elect) in the Department and without affecting the
promotional avenue of others, more particularly the writ
petitioners, the respondents 3 and 4 were re-engaged to the post
of Chief Engineer/Power & ED(Tech)/MSPDCL and MD/MSPCL
respectively. Since, the writ petitioners are not the aggrieved to
the extension of service of the private respondents 3 and 4 to the
post of Chief Engineer/Power & ED(Tech)/MSPDCL and
MD/MSPCL, they have no locus to file the present writ petition
challenging the impugned letter dated 5.1.2023 and the writ
petition is devoid of merits. Therefore, the same is liable to be
dismissed as not maintainable. In support, the learned Additional
Advocate General placed reliance upon the decision of the
Hon'ble Supreme Court in the case of Jasbhai Motibhai Desai
v. Roshan Kumar, HajiBashir Ahmed and others, (1976) 1
SCC 671.
15. Mr. N. Kumarjit, the learned senior counsel
appearing for the private respondents 3 and 4 have also
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 15
questioned the maintainability of the writ petition filed by the writ
petitioners contending that the writ petitioners are newly
promoted Superintending Engineers (Elect) in the Electricity
Department on probation for a period of 2 years and they are not
at all eligible and fit for holding and manning the post of Managing
Director of Manipur State Power Distribution Company Limited
(MSPDCL) and, hence, the writ petitioners have no locus to file
the present writ petition challenging the re-engagement of the
respondents 3 and 4 by the respondents 1 and 2 as Chief
Engineer/Power & ED(Tech)/MSPDCL and MD/MSPCL on
contract basis under the agreement dated 16.1.2023. In support
of the arguments, the learned senior counsel for the third
respondent has placed on record the following decisions:
(i) N.C.Singhal (Dr) v. Union of India,
(1980) 3 SCC 29;
(ii) Rameshwar Das Mehla v. Omprakash
Saini an dothers, (2010) 15 SCC 790;
(iii) B.Srinivasa Reddy v. Karnataka Urban
Water Supply and Drainage Board
Employees' Association, (2006) 11
SCC 731(2).
16. Adding further, the learned senior counsel for the
respondents 3 and 4 submitted that agreements were executed
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 16
by the respondents 1 and 2 in exercise of their discretion
conferred by Article 154 read with Article 162 of the Constitution
of India for the administrative convenience and for the prevention
of administrative hiatus, which is, therefore, beyond the pale of
judicial interference and review.
17. The learned senior counsel for the respondents 3
and 4 urged that it is settled principle of law that no one can file
a case in the Court of law for the vindication of a right, he/she is
not legally entitled to. Since the writ petitioners have no legal
rights to claim the post of the Chief Engineer/Power &
ED(Tech)/MSPDCL and MD/MSPCL, they cannot file the writ
petition and, therefore, the writ petition is liable to be dismissed
in limine.
18. In reply, Mr. HS Paonam, the learned senior
counsel for the writ petitioners submitted that the respondents 1
and 2 nowhere mentioned that the re-engagement of the
respondents 3 and 4 is the mode of appointment mandated by
the recruitment rules and, therefore, it is an implied admission on
the part of the respondents 1 and 2 that the re-engagement of
the respondents 3 and 4 by the Cabinet decision is in violation of
the relevant recruitment rules of the post which has been framed
in exercise of the power conferred by the proviso to Article 309
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 17
of the Constitution of India. When that being the position, a
Cabinet decision cannot override a statutory rule framed under
the constitutional provision which is a law for all purposes.
Therefore, the impugned letter dated 5.1.2023 apart from
culmination in exercise of arbitrary power illegally has also
deprived of the legitimate right and expectation of the writ
petitioners, more so, for the reason that by the State policy, vide
Office Memorandum dated 9.3.2021 where the State
Government having visualized about the likely situation of non-
availability of eligible person for appointment by promotion to a
post which may become vacant, policy has been made for
considering the case of person holding lower post for
appointment against a higher post whenever vacancy arises
where situation of non-availability of eligible candidates for
promotion occurs.
19. The learned senior counsel for the writ petitioners
urged that the official respondents have not stated that the re-
engagement of the respondents 3 and 4 is permissible as per the
relevant recruitment rules, inasmuch as relevant rules provide a
condition for appointment and re-engagement of retired person.
Further, the respondent State seems to have taken a decision to
re-engage the respondents 3 and 4 on extraneous consideration
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 18
as would be visibly substantiated by non-extension and non-re-
engagement of retired Chief Engineer in other Government
Engineering Department, which are equally taking up important
huge projects including implementation of national flagship
schemes.
20. The learned senior counsel for the petitioners next
submitted that the power to issue prerogative writs under Article
226 of the Constitution of India is plenary in nature and is not
limited by any other provision of the Constitution and that the
power can be exercised not only for issuing writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and
certiorari for enforcement of any of the fundamental rights
contained in Part III of the Constitution of India, but for any other
purpose.
21. According to the learned senior counsel for the
petitioners, the principle of legitimate expectation gave the writ
petitioners sufficient locus to seek judicial review. Arguing so,
the learned senior counsel submitted that the miscellaneous
cases filed by the respondents 1 and 2 as well as the fourth
respondent questioning the maintainability of the writ petition are
misconceived of facts as well as law and, therefore, the same are
liable to be dismissed. To fortify his submissions, the learned
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 19
senior counsel for the writ petitioners placed reliance upon the
following decisions:
(i) Whirlpool Corporation v. Registrar
of Trade Marks, Mumbai, (1998) 8
SCC 1.
(ii) Dr. Chanchal Goyal (Mrs) v. State of
Rajasthan, (2003) 3 SCC 485.
(iii) Ghulam Qadir v. Special Tribunal
and others, (2002) 1 SCC 33.
(iv) Navjyoti Coop. Group Housing
Society v. Union of India and
others, (1992) 4 SCC 477.
(v) Dr. DC Wadha and others v. State of
Bihar and others, (1987) 1 SCC 378.
(vi) Secretary, State of Karnataka v.
Uma Devi, (2006) 4 SCC 1.
(vii) Joshi Technologies International
Inc. v. Union of India and others,
(2015) 7 SCC 728.
(viii) IRTC v. Indian Railways Major and
Minor Caterer Association, (2011)
12 SCC 792.
(ix) Sanchet Bansal v. Joint Admission
Board, (2012) 1 SCC 157.
(x) Naseem Bano (Smt) v. State of UP
and others, 1993 Supp (4) SCC 46.
(xi) Union of India and another v.
Raghubir Singh (Dead) by LRs. etc.,
(1980) 2 SCC 754.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 20
22. In regard to the miscellaneous case filed by the
respondents 1 and 2 praying to vacate the interim order dated
25.1.2023 passed in the writ petition, the learned Additional
Advocate General submitted that the respondents 3 and 4 were
re-engaged as a contract to the post of Chief Engineer/Power &
ED (Tech)/MSPDCL and MD/MSPDCL with effect from 1.4.2023
to 31.12.2023 for a period of one year as there were no eligible
persons for holding the post of Managing Director/Chief Engineer
(Power). He would submit that in relaxation of relevant
recruitment rules and as approved by the State Cabinet in its
meeting held on 2.1.2023 for efficient and effective functioning of
both the companies, the respondents 3 and 4 were re-engaged.
This is a purely a stop gap arrangement till the other employees
are eligible enough to be given the charge of Chief
Engineer/Managing Director respectively.
23. The learned Additional Advocate General then
submitted that the writ petitioners have no legal right to interfere
in the re-engagement of the respondents 3 and 4 for a period of
one year to the post of Chief Engineer/Managing Director
(Power) as a stop gap arrangement since the writ petitioners are
not eligible to hold the post of Additional Chief Engineer in terms
of the recruitment rules of Additional Chief Engineer (Power) and,
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 21
in fact, they are yet to complete their probation period in the post
of Superintending Engineer. In the aforesaid background, the
learned Additional Advocate General prayed to vacate the
interim order dated 25.1.2023 passed in the writ petition as the
same is causing much prejudice to the respondent State.
24. The learned senior counsel appearing for the third
respondent seeks to vacate the interim order dated 25.1.2023
contending that the interim order was passed without looking into
the preliminary objection dated 24.1.2023 raised by the third
respondent in the writ petition. He would submit that the writ
petitioners were promoted to the post of Executive Engineer
(Elect) on 30.1.2018 on one-time relaxation basis and as per the
recruitment rules, a degree-holder Assistant Engineer (Elect) is
eligible for consideration for promotion to Executive Engineer
(Elect) only after serving 6 years on regular basis. However, at
the time of consideration for promotion, the writ petitioners did
not have regular service of 6 years as Assistant Engineer.
Hence, their promotion was made by relaxing the relevant
recruitment rules for the post of Executive Engineer.
25. The learned senior counsel further submitted that
as per the recruitment rules for the post of Superintending
Engineer (Elect), Executive Engineer (Elect) having 6 years
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 22
regular service is eligible for promotion to the post of
Superintending Engineer (Elect). However, the writ petitioners
were promoted to the post of Superintending Engineer (Elect) on
7.4.2022 by making one-time relaxation of the relevant
recruitment rules once again. As per the recruitment rules for the
post of Additional Chief Engineer (Elect) and Chief Engineer
(Power), an officer in the grade of Superintending Engineer
(Elect) is eligible for promotion to Additional Chief Engineer
(Elect) after 5 years of regular service. Thereafter, an officer in
the grade of Additional Chief Engineer (Elect) is eligible for
promotion to Chief Engineer (Power) after 3 years of regular
service. Since the writ petitioners were promoted to the post of
Superintending Engineer only on 7.4.2022 and they have served
less than one year as Superintending Engineer (Elect) and they
yet to complete the probation period of 2 years and also they
have to serve more than 4 years to be eligible for promotion to
the post of Additional Chief Engineer (Elect), the writ petitioners
are not eligible for consideration for promotion to the post of
Additional Chief Engineer (Elect) or Chief Engineer (Power) as
the case may be. Since the writ petitioners have no locus standi
to file the writ petition and the interim order dated 25.1.2023
granted by this Court is causing much prejudice to the private
respondents, the same is liable to be vacated.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 23
26. The learned senior counsel appearing for the fourth
respondent adopted the submissions raised by the learned
senior counsel for the third respondent. He also added that the
writ petitioners have no locus standi to challenge the extension
of service of the respondents 3 and 4 and the writ petitioners are
not aggrieved in any manner by the extension of service granted
to the respondents 3 and 4, as the writ petitioners are not yet
even eligible for promotion to the post of Additional Chief
Engineer (Elect) leaving aside the post of Chief Engineer (Elect).
27. The learned senior counsel would submit that the
promotional avenue of the writ petitioners are not at all affected
in any manner by the extension of the service of the respondents
3 and 4. If the interim order dated 25.1.2023 is not vacated or
modified, the respondents 3 and 4 as well as the respondent
State will suffer irreparable loss and legal injury. Since the writ
petitioners are not the sufferers and have no legal right to
question the extension given to the fourth respondent, the
learned senior counsel prayed to vacate the interim order dated
25.1.2023 passed in the writ petition. In support, the learned
senior counsel placed reliance upon the decisions of the Hon'ble
Supreme Court in the cases of (i) Anand Sharadchandra Oka
v. University of Mumbai, (2008) 5 SCC 217 and (ii)
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 24
Ayaaubkhan Noorkhan Pathan v. State of Maharashtra,
(2013) 4 SCC 465.
28. Supporting the interim order dated 25.1.2023
granted by this Court, the learned senior counsel for the writ
petitioners submitted that the contention of the respondent State
as well as the respondents 3 and 4 are misconceived on facts
and law, inasmuch as protection as being sought for under FR
56(d) by the respondents 3 and 4 is wholly on the
misunderstanding and misconstrued interpretation. He would
submit that the post of Chief Engineer (Power) is not a specialist
post, inasmuch as it is not a post dealing in scientific fields though
to take shield of defence under the second proviso to FR 56(d) is
highly misconceived and not acceptable and, therefore, on this
count alone, the miscellaneous cases filed by the respondents
are liable to be dismissed.
29. Adding further, the learned senior counsel for the
writ petitioners submitted that the respondents 3 and 4 having
not covered by the second proviso to FR 56(d), the impugned
letter dated 5.1.2023 was issued in violation of the statutory rules
as well as in violation of the State policy which was already
notified and published widely by the competent authority of the
State Government and, thus, the impugned order is ex facie
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 25
illegal. Therefore, the grounds taken by the respondents,
particularly, the private respondents 3 and 4 for vacation of the
interim order are not in tune with the law.
30. The learned senior counsel for the writ petitioners
urged that by the past practice and precedents adopted in the
Power Department as well as the other Government Engineering
Department like Water Resource Department etc., it is not the
requirement of law for conferring the charge of Chief Engineer to
person holding the post of Superintending Engineer (Elect)
without first promoted to the post of Additional Chief Engineer.
Further, earlier one Ak. Shyamkishore Singh, who was given
promotion to the post of Superintending Engineer (Elect) in
Power Department vide order dated 30.12.1999 and to be on
probation for a period of two years has been given the charge of
Chief Engineer in July, 2000. Therefore, the contention of the
respondents 3 and 4 qua the impermissibility of Superintending
Engineer in holding the charge of Chief Engineer is without
substance.
31. The learned senior counsel for the writ petitioners
urged that the third respondent is the beneficiary of frequent
relaxation of recruitment rules even to the extent of creating a
supernumerary post specially for him and in the process, he
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 26
became the Chief Engineer within a period of 8 years from the
post of Executive Engineer against the normal requisite length of
14 years of service, which is actually mandated by the
recruitment rules in the Department. Therefore, the plea of the
respondents 3 and 4 that by relaxing the rules the writ petitioners
were given the post of Superintending Engineer is incorrect.
Arguing so, the learned senior counsel for the writ petitioners
submitted that there is no valid ground raised by the respondents
to vacate the interim order and, in fact, the respondents have filed
the miscellaneous cases with incorrect and false statements that
too without disclosing and indulging into suppression of practice
and precedent followed in the Department. Therefore, the
miscellaneous cases to vacate the interim order filed by the
respondents are liable to be dismissed.
32. This Court considered the rival submissions and
also perused the materials available on record.
33. Upon consideration of the rival submissions, the
following points arise for consideration:
(1) Whether the writ petition filed by the writ
petitioners is not maintainable as alleged
by the respondents?
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 27
(2) Whether the writ petitioners have no locus
to file the writ petition as alleged by the
respondents?
(3) Whether the interim order dated 25.1.2023
is liable to be vacated as pleaded by the
respondents?
34. The case of the writ petitioners is that the
respondents 3 and 4 who were serving as Executive Engineer
(Elect) were appointed to the post of Superintending Engineer
(Elect) by promotion on 31.1.2018 by providing one-time
relaxation in the qualifying years of service for promotion and
were given promotion to the post of Additional Chief Engineer on
3.8.2020 after rendering about only two and half years in the
grade of Superintending Engineer (Elect). The promotion of the
respondents 3 and 4 effected by relaxing the minimum qualifying
years of service which is 5 years of regular service in the grade
of Superintending Engineer as required by the relevant
recruitment rules. Thereafter, the respondents 3 and 4 were
promoted to the post of Chief Engineer (Power) on 29.4.2022 and
21.2.2022 respectively by providing one-time relaxation of
qualifying years of service for promotion for the third time as both
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 28
of them did not possess the essential qualification for the post of
Chief Engineer (Power) as per the relevant recruitment rules.
35. Further case of the writ petitioners is that in
pursuance of the decision of the State Cabinet, the service of the
third respondent was extended for a period of one year from the
date of his retirement with effect from 1.1.2023 to 31.12.2023
vide order dated 4.10.2022. Assailing the order dated 4.10.2022,
the writ petitioners have filed W.P.(C) No.1096 of 2022 and, by
the interim order dated 21.12.2022, this Court stayed the order
dated 4.10.2022. However, during the pendency of W.P.(C)
No.1096 of 2022, the Department of Personnel informed the
Deputy Secretary (Power) vide impugned letter dated 5.1.2023
about the Cabinet decision taken on 2.1.2023 for re-engagement
of the third respondent as Chief Engineer (Power) and
ED/MSPDCL with effect from 1.1.2023 to 31.3.2023 and then as
MD, MSPDCL with effect from 1.4.2023 till 31.12.2023 and the
fourth respondent was re-engaged as MD, MSPDCL with effect
from 1.3.2023 to 31.3.2023 and then as MD, MSPDCL for one
year with effect from 1.4.2023.
36. The specific case of the writ petitioners is that in
spite of complete ban on extension of service/re-engagement of
Government servants beyond the age of superannuation in terms
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 29
of the order dated 20.4.2000 issued by the Secretary (DP),
Government of Manipur as well as the State Cabinet in its
meeting held on 3.4.2017 took a decision to do away with the
engagement of Government servant/employees after retirement
by giving one month's notice as per the terms and conditions of
the contractual agreement with immediate effect and the Finance
Department wrote a letter dated 11.5.2017 requesting all the
Departments to comply with the aforesaid decision and to submit
compliance report. Aggrieved with the illegal actions of extending
the service of both the respondents 3 and 4, which is contrary to
the decision of the official respondents, the writ petitioners have
filed the present writ petition.
37. According to the writ petitioners, by ignoring the fact
that the respondents 3 and 4 are not eligible for holding the post
of Managing Director, MSPDCL as per recruitment rules and
policies for the post of Chief Engineer (Power), they have been
re-engaged by the respondents 1 and 2. Apart from this, when
the writ petitioners were available and eligible for re-engagement
as Chief Engineer for Power, ignoring the same, the respondents
1 and 2 have passed the impugned order dated 5.1.2023 thereby
re-engaging the respondents 3 and 4. According to the writ
petitioners, the respondent State has passed the impugned order
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 30
while ban in force of re-engagement of Government servant
beyond the age of superannuation in terms of the order dated
20.4.2000 issued by the Secretary (DP), Government of Manipur.
Therefore, the challenge made by the writ petitioners to the
impugned order dated 5.1.2023 is very well maintainable and this
Court was right in admitting the writ petition and also rightly
granted the interim order.
38. On the contrary, the respondents 3 and 4
contended that the post of Chief Engineer (Power) is a highly
technical post which requires a skilled scientific person to man
the post and the respondents 3 and 4 are persons having
requisite scientific knowledge in Electrical Engineering field.
Hence, the re-engagement of the respondents 3 and 4 upto 62
years is permissible under the second proviso to FR 56(d). Since
the re-engagement of the respondents 3 and 4 is a policy
decision of the State, the same cannot be interfered with by the
Court under writ jurisdiction. In support, the learned senior
counsel for the third respondent placed reliance upon the
following decisions:
(i) Union of India v. M.Selvakumar,
(2017) 3 SCC 504.
(ii) Parisons Agrotech (P) Ltd. V. Union
of India, (2015) 9 SCC 657.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 31
39. The third respondent contended that the writ
petitioners have no locus to challenge re-engagement of the third
respondent to the post of Chief Engineer and subsequently, MD,
MSPDCL in view of holding the post of Superintending Engineer
only which is not even the feeder post for promotion to the post
of Chief Engineer and, therefore, the writ petitioners cannot be
considered as aggrieved persons having locus to challenge the
order impugned in the writ petition.
40. In order to find the locus of the writ petitioners to file
the present writ petition, it is necessary to look into the averments
set out in the writ petition. The averments set out in the writ
petitioner clearly indicate that it is the person holding substantive
post of Superintending Engineer who has been allowed to hold
the charge of Chief Engineer. Even the writ petitioners who have
hardly seven months experience in the grade of Superintending
Engineer are to be considered to hold the charge of Chief
Engineer.
41. The learned counsel for the writ petitioners has also
shown the past practice and precedent in promoting the
Executive Engineer to the post of Superintending Engineer who
was having only 7 months experience to hold the charge of Chief
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 32
Engineer (Power). On the other hand, the respondents
highlighted that since the writ petitioners were promoted to the
post of Superintending Engineer (Elect) only on 7.4.2022 and at
present they have served less than one year as Superintending
Engineer (Elect) and they yet to complete the probation period of
two years and, hence, they are not eligible for consideration for
promotion to the post of Additional Chief Engineer (Elect) or Chief
Engineer (Power).
42. According to the writ petitioners, when officers
holding the post of Chief Engineer are retired on attaining the age
of superannuation, the service of retired persons were not
engaged, but officers working in the grade of Superintending
Engineer had been allowed to function as in-charge/look after the
Chief Engineer. Due to the decision of the State cabinet to re-
engage the service of the third respondent as Chief Engineer
(Power), the chance of the petitioners for leading the Department
by holding the highest post on in-charge basis or otherwise has
been deprived of and the same needs to be interfered with by
this Court. Similarly, the re-engagement of the fourth respondent
as MD, MSPDCL, the change of the writ petitioners for leading
the said post on in-charge basis has been deprived of and the
same should also be interfered with.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 33
43. For proper appreciation, it would be appropriate to
extract the impugned letter of the Deputy Secretary (DP),
Government of Manipur hereunder for ready reference:
"I am directed to invite a reference on the above
subject and to say that the State Cabinet in its
meeting held on 02.01.2023 approved the
following:-
i) For re-engagement of Shri H.
Shantikumar Singh on contract
basis as Chief Engineer/Power &
ED(Tech)/MSPDCL w.e.f.
01.01.2023 to 31.03.2023, and
then as MD.MSPDCL w.e.f.
01.04.2023 to 31.12.2023.
ii) Re-engagement of Shri Ng.
Subhashchandra Singh on contract
basis as MD.MSPDCL w.e.f.
01.03.2023 to 31.03.2023 and then
as MD/MSPCL for 1 (one) year
w.e.f. 01.04.2023.
2. It is, further informed that the DP's order
No.APPT-9/1/2022-DP-DP dated 04.10.2022
regarding extension of service of Shri H.
Shantikumar Singh has been cancelled vide
DP's order of even No.COURT-1/186/2022-DP-
DP dated 05.01.2023 (copy enclosed)
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 34
3. A copy of Cabinet Memorandum and its
decision taken on 02.01.2023 is also enclosed
herewith for taking further necessary action."
44. The aforesaid re-engagement of the respondents 3
and 4 has been questioned by the writ petitioners contending that
to frustrate and circumvent the order passed by this Court in
W.P.(C) No.1096 of 2022, dated 21.12.2022, the impugned order
dated 5.1.2023 came to be issued and the said act of re-
engagement is not a curative action, but intended to nullify the
order of this Court. Therefore, the writ petitioners have locus to
question the act of the official respondents and the writ petition is
very well maintainable.
45. The maintainability of the writ petition was
questioned by the learned senior counsel appearing for the
respondents 3 and 4 as well as the learned Additional Advocate
General even when the writ petition was taken up for hearing for
admission on 25.1.2023 itself. This Court, upon hearing the
submissions of the respective learned senior counsel qua the
maintainability of the writ petition, observed as under:
"[12] On hearing both sides, this Court kept this
writ petition for passing orders for consideration
of the admission of the writ petition and for
granting interim order and posted the matter
today i.e. 25.01.2023.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 35
[13] The case of the petitioners are that they are
working as Superintending Engineer in the
respondent department and they are
challenging the reengagement of the
respondents No. 3 and 4 as Chief Engineer and
MD as per the order dated 05.01.2023.
[14] Though the petitioners are working as
Superintending Engineer in the respondent
department and the case of the petitioners are
that they are eligible to appoint as in-charge
Chief Engineer in the respondent department
since the respondent department already
passed several orders to that effect. As per
order of the respondent department dated
31.05.2002, one Shri Ch. Ibopishak Singh who
worked as Superintending Engineer (Elect.)
was given in-charge of Chief Engineer (Power),
Manipur; another order dated 22.05.2003 one
Shri Ng. Tikendrajit Singh who worked as
Superintending Engineer (Elect), was given to
hold in-charge of Chief Engineer (Power),
Manipur and another order dated 11.10.2004
one Shri H. Bihari Singh who worked as
Superintending Engineer was given the charge
of Chief Engineer (Power), Manipur.
[15] Therefore, Mr. Golly, learned counsel for
the petitioners prayed that instead of giving
reengagement to the respondents No. 3 and 4
as Chief Engineer, the petitioners may be given
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 36
to hold as Additional in-charge as Chief
Engineer but without doing the same and for the
purpose of giving the order in favour of the
respondents No. 3 and 4 the present impugned
order dated 05.01.2023 has been passed by
violating their own order dated 20.04.2000
which order banning the reengagement is still in
existence.
[16] When Mr. N. Kumarjit, learned senior
counsel who appeared for the respondent No. 3
has made objection about the maintainability of
the writ petition, this Court considers that when
the writ petitioners have shown the above
orders dated 31.05.2002, 22.05.2003 and
11.10.2004 which clearly shows that the
Superintending Engineer is working in the
respondent department are entitled for claiming
the in-charge post of Chief Engineer.
[17] Apart from this, when the order dated
20.04.2000 is in existence till date, the present
impugned order dated 05.01.2023 was issued
in total violation of the above order.
[18] Therefore, in my absolute view, the writ
petitioners have made out prima facie case for
admission and for granting of interim order.
[19] On filing of the counter affidavit, this Court
will consider the maintainability as well as the
merits of the writ petition.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 37
[20] Considering the above, I am inclined to
pass the following orders :
1) this writ petition is admitted.
2) Since Mr. N. Kumarjit, learned
senior counsel takes notice for
respondent No. 3 and hence, no
formal notice is required. Time granted
for filing counter affidavit by
respondent No.3.
3) Mr. S. Niranjan, learned
Government Advocate takes notice on
behalf of the Respondents No. 1 and 2
and Mr. M. Ibohal, learned counsel
take notice for respondent No. 4.
Therefore, no formal notice is required
for the Respondents No. 1, 2 and 4.
The respondents No. 1, 2 and 4 are
directed to file counter affidavit.
[21] Post the matter on 09.02.2023.
[22] Till such, time, there shall be an order of
interim stay of the impugned letter No. COURT-
1/186/2022-DP-DP dated 05.01.2023 and its
subsequent and consequential action till next
date."
46. It is pertinent to note that the said interim order has
not been assailed by way of any appeal either by the official
respondents or the private respondents 3 and 4. However, they
have filed the instant miscellaneous cases questioning the
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 38
maintainability of the writ petition. Having raised an issue earlier
qua maintainability of the writ petition and upon considering the
arguments raised by the respective learned counsel for the
parties, this Court admitted the writ petition. For the second time,
the respondents cannot raise the maintainability issue by filing
miscellaneous cases. If really, the respondents are aggrieved
and/or prejudiced by the admission of the writ petition, they ought
to have taken further steps in the manner known to law.
However, the respondents have failed to do so. This has been
recorded at this stage only to show the bona fide of the
respondents in not taking care to question the interim order by
way of appeal. Since the respondents questioned the locus of
the writ petitioners and the maintainability of the writ petition, this
Court is inclined to deal with the same in the following manner.
47. As far as the maintainability of the writ petition
challenging the impugned letter dated 5.1.2023 by the writ
petitioners is concerned, a thorough reading of the averments set
out in the writ petition prima facie establish that the writ petition
is maintainable. Certain averments set out in the writ petition
are necessary to analyse the maintainability of the writ petition
and the same are quoted hereunder for ready reference:
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 39
"20 That the decision for re-engagement of the
Private Respondents No.3 for a period of one
year which is combination of extension of
service by way of re-engagement as Chief
Engineer(Power) and Managing Director of
MSPDCL is against the applicable rules for the
post of Chief Engineer in terms of the relevant
recruitment rules framed in exercise of power
under proviso to Article 309 of the Constitution
of India for the post of Chief Engineer and also
applicable rule for the post of MD. MSPDCL
framed in exercise of power conferred by the
transfer scheme of 2013 and re-engagement of
the Private Respondent No 4 as MD, MSPCL
we.f. 01-04-2023 is against the existing
recruitment rules.
Under the recruitment rules for the post of Chief
Engineer, mode of appointment is by promotion
neither the appointment by lateral entry or by
way of re-engagement on contract basis is
contemplated by the recruitment rules whereas
under the rules framed by the competent
authority in exercise of power conferred by
transfer policy of 2013, the post of MD in
MSPDCL is an IAS cadre post i.e. it is to be held
by an officer belonging to IAS cadre as
indicated by the applicable rule and policy as at
Annexure-A/22 along with its enclosures above
Therefore, private respondent who is neither a
cadre officer of IAS cadre nor any other
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 40
designated officer contemplated under the rule
is not qualified for appointment to the post of
MD, MSPDCL inasmuch as re-engagement on
contract basis to the post of Chief Engineer in
EDM being against the condition of recruitment
rules, the impugned order is liable to be
quashed and set aside.
21. That for the Private Respondent No. 4 to
work as MD, MSPCL w.e.f. the date when the
post became vacant after relieving the service
of the present incumbent upon expiry of term of
contract appointment, the Private Respondent
No. 4 is not eligible as per the rule frame for the
post by the competent authority, since under
the said rule, the post of MD. MSPCL is to be
filled up either by way of deputation from eligible
person indicated in the rule failing which by
promotion from eligible person as mentioned in
the rule and policy and further upon failing
which both the two modes, it has to be filled up
by way of lateral entry on contract basis through
open advertisement. There is a qualification
and eligibility provided for contract appointment
by way of lateral entry whereunder the Private
Respondent No. 4 is not eligible. Therefore,
having regard to the condition provided in the
relevant rules for the post of Chief Engineer in
EDM, MD in MSPDCL and MSPCL, the Private
Respondents No.3 and No. 4 being not eligible,
taking a decision for engaging the service of the
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 41
Private Respondent No.3 on contract basis as
Chief Engineer at the first instance for 3 months
and remaining period of 9 months as MD,
MSPDCL till 31 December 2023 and the Private
Respondent No. 4 re-engagement as MD.
MSPDCL w.e.f. 01-03-2023 to 31-03-2023 and
MD, MSPCL for 1 year w.e.f. 01-04-2023 are
not legally sustainable and therefore liable to be
quashed and set aside.
22. That the impugned decision of re-
engagement of the Private Respondent No.3 is
also equally against the provision of FR 56 and
the re- engagement order so issued would not
come under any exception provided under FR
56 and therefore, the impugned letter is liable to
be quashed and set aside.
The impugned letter having been issued in
violation of standing policy decision of the State
Govt. for not making re-appointment and re-
engagement of persons who have retired from
service by State cabinet decision taken on 02-
01-2023 and communicated to the Power
Department, Govt. of Manipur vide letter dated
05-01-2023 of the Deputy Secretary (DP), Govt.
of Manipur for taking further necessary action is
liable to be quashed and set aside. Further, the
reason which might have assigned for this
nature of engagement is against the practice
and precedent followed in other Govt.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 42
Department of the State Govt. as would be
substantiated by undisputed policy decision of
the State Govt. in allowing person working in
lower substantive post to hold the higher post
after retirement of the incumbent holding the
higher post as happened for about two decades
in the PWD, Manipur where even the person
holding substantive post of AE had been
allowed to hold the charge of Chief Engineer
and therefore, the impugned order virtually
deprived the legitimate expectation of the
petitioner for allowing to discharge the duty and
responsibility of higher post as being done in
other Govt. Department like Water Resource
Dept. Therefore, the impugned letter being
against the past practice and precedent of the
State Govt. is liable to be interfered with as not
legally sustainable.
23. That the impugned letter has clearly given a
wrong message to employees working in the
Power Department as to whether authority are
willing to utilize the service of retired person
against whom serious corruption charges are
leveled and investigation is ongoing and
thereby favouring such person for likely
purpose of collusive action for enabling irregular
financial transaction to meet vested interest of
some higher authority. This statement is being
made in view of the cognizance taken by the
Manipur Lokayukta vide its order dated 24-11-
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 43
2022 passed in Complaint Case No. 6 of 2022
whereby it is clearly indicated that respondent
No.3 and respondent No.4 are the main
accused in a huge scam of corruption in relation
to implementation of SAUBHAGYA scheme by
the MSPDCL involving an amount of about Rs
200 crores.
24. That the impugned decision for extension of
service of the Private Respondents No.3 and 4
by way of re-engagement on contract basis has
been taken even without first issuing the
termination of the respondent No.3 upon
attaining the age of superannuation w.e.f. 31-
12-2022. It is also against the transfer policy of
2013 under which respondent No.3 who has
been deputed to the MSPDCL and allowed to
hold the post of Executive Director during the
relevant time of retirement under which
respondent No.3 is to be repatriated to the
Power Department one month prior to date of
superannuation as per Transfer Policy and
thereafter to be allowed to retire from Govt.
service in the EDM. All these flagrant violation
of mandated procedures under the rules clearly
demonstrates that the order impugned is the
culmination of extraneous consideration and
favouritism and therefore, the letter impugned in
the writ petition is liable to be quashed and set
aside."
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 44
48. Highlighting the aforesaid averments, the writ
petitioners contended that the decision of the respondent State
for re-engagement of the third respondent as Chief Engineer
(EDM) at the first instance for a period of three months and the
remaining period of 9 months of one year as MD, MSPDCL and
the decision of the respondent State for re-engagement of the
fourth respondent as MD, MSPDCL for one month with effect
from 1.3.2023 and as MD, MSPDCL for one year with effect from
1.4.2023 are against the law and therefore, the same can be
questioned by way of filing writ petition by the writ petitioners,
who are really aggrieved and there may not be any legal
impediment in allowing the writ petitioners who are also the
senior officers of the Department to hold the charge of Chief
Engineer as well as MD, MSPCL/MSPDCL on in-charge basis.
Prima facie, this Court finds some force in the said submission
made by the writ petitioners, as the post of Chief Engineer as well
as MD/MSPCL/MSPDCL are not to be manned by retired
persons i.e. the respondents 3 and 4.
49. It is to be mentioned that the decision for extension
of service of the respondents 3 and 4 by way of re-engagement
on contract basis has been taken even without first issuing the
termination of the third respondent upon attaining the age of
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 45
superannuation with effect from 31.12.2022, which is against the
transfer policy of 2013 under which the third respondent who has
been deputed to the MSPDCL and allowed to hold the post of
Executive Director during the relevant time of retirement under
which the third respondent is to be repatriated to the Power
Department one month prior to the date of superannuation. This
flagrant violation highlighted by the learned senior counsel for the
writ petitioners has not been refuted by the private respondents.
Though the said contention of the writ petitioners is merit of main
writ petition, to have clarity in the order, the same is analysed and
discussed by this Court. The aforesaid view is only a prima facie
view of this Court in regard to deciding the maintainability issue.
50. Placing reliance upon the decisions of the Hon'ble
Supreme Court in the cases of (i) N.C.Singhal (Dr); (ii)
Rameshwar Das Mehla and (iii) B.Srinivasa Reddy, supra, the
learned senior counsel for the third respondent submitted that the
writ petitioners have not yet even completed one year of service
in the grade of Superintending Engineer (Elect) and they are yet
to be promoted as Additional Chief Engineer (Elect) on regular
basis. They have not even held the post of Additional Chief
Engineer (Elect) on in-charge basis. However, quite shockingly,
they have challenged the re-engagement of the third respondent
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 46
on contract basis as Chief Engineer/Power & ED (Tech),
MSPDCL. Further, there is no person who is eligible to hold the
post of Chief Engineer (Power) in the Department and, therefore,
the State Cabinet took a policy decision to re-engage him on
contract basis in its meeting held on 2.1.2023. It is further
argued by the learned senior counsel for the third respondent that
since the writ petitioners are not aggrieved in any manner by the
re-engagement of the third respondent, they are not eligible for
promotion to the post of Additional Chief Engineer (Elect) or the
Chief Engineer (Power).
51. In N.C.Singhal (Dr), supra, the Hon'ble Supreme
Court held:
"21. Having examined the challenge to the
promotion of Respondents 4 to 24 on merits, it
must be made clear that the appellant is least
qualified to question their promotions. Each one
of them was promoted to a post in supertime
Grade II in a speciality other than
Ophthalmology and appellant admittedly was
not qualified for any of these posts. Even if their
promotions are struck down appellant will not
get any post vacated by them. Incidentally High
Court also upheld their promotions observing
that by the time the petition was heard each one
of them had requisite service qualification and,
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 47
therefore, the promotions could not be struck
down. Once the challenge on merits fails the
second string to the bow need not be examined.
Having said all this, appellant is least competent
to challenge their promotions. In a slightly
comparable situation this Court in Chitra
Ghosh v. Union of India, (1969) 2 SCC 228, 234
: (1970) 1 SCR 413, 420] observed as under:
"The other question which was
canvassed before the High Court and
which has been pressed before us
relates to the merits of the nominations
made to the reserved seats. It seems
to us that the appellants do not have
any right to challenge the nominations
made by the Central Government.
They do not compete for the reserved
seats and have no locus standi in the
matter of nomination to such seats.
The assumption that if nominations to
reserved seats are not in accordance
with the rules all such seats as have
not been properly filled up would be
thrown open to the general pool is
wholly unfounded."
52. In Rameshwar Das Mehla, supra, the Hon'ble
Supreme Court held:
"3. In challenging this order made by the High
Court on behalf of the appellant, it is submitted
that:
(1) A court could examine the
legality or otherwise of a matter only at
the instance of a person who is
qualified and eligible and has a locus
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 48
standi and not the one who has no
eligibility and drew our attention to the
decisions of this Court in Subhash
Chander Bajaj v. Kamal Singh
Singhmar [(2010) 15 SCC 795] , A.P.
Public Service Commission v. G.
Sankar [(2010) 15 SCC 796 : 1999
SCC (L&S) 993] and Jit Singh v. State
of Punjab [(1979) 3 SCC 37 : 1979
SCC (L&S) 220 : (1979) 1 SLR 604] ;
(2) That, appropriate approach to
the case should have been by
examining the qualification prescribed
in the advertisement itself and if the
prescription thereto is carefully read as
a whole, the appellant had fulfilled the
necessary qualification and when in
the view of the selection authority he
had fulfilled such qualification, it is not
open to the Court to interfere with the
same as such matters fall within the
realm of academic matters and this
Court in University of Mysore v. C.D.
Govinda Rao [AIR 1965 SC 491 :
(1964)4SCR575], Chancellor v. Bijay
ananda Kar [(1994) 1 SCC 169 : 1994
SCC (L&S) 296 : (1994) 26 ATC 570]
and Tariq Islam v. Aligarh Muslim
University [(2001) 8 SCC 546 : 2002
SCC (L&S) 1] has consistently taken
the view that on such questions
pertaining to qualifications which is an
academic matter it should be left to the
wisdom of university authorities;
(3) That certain notifications had
been issued by the University Grants
Commission explaining that insistence
upon 55% marks in the case of the
appellant was not necessary at all in
view of the fact that he was already in
the service of the University and such
relaxation had been given in the case
of Readers earlier and that was the
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 49
practice followed by the University
throughout;
(4) That once the High Court has
come to the conclusion that the writ
petitioners were not eligible for the
post, the High Court could not have
gone further to examine the matter
and at the most, could have treated
the matter as one for a writ of quo
warranto, although it could not be
issued in a matter of this nature;
(5) The learned counsel for the
appellant also raised certain pleas on
the basis of certain equities arising in
the case.
........
8. Similarly, in the case of the other respondent
it has been stated that the respondent
concerned is not having 10 years' experience
as a Deputy Librarian in a university or 15 years'
experience as a College Librarian and he is not
having one year specialisation in the area of
Information Technology/Archives and
Manuscript-keeping and this fact found favour
with the High Court. The High Court
categorically stated that the petitioners in both
the cases were not eligible for the post. That
finding has been recorded on consideration of
these aspects of the matter. If that is so, other
questions need not have been examined in this
case at all, though raised by either of the
parties."
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 50
53. In B.Srinivasa Reddy, supra, the Hon'ble Supreme
Court held:
"78. The High Court, in the instant case, was not
exercising certiorari jurisdiction. Certiorari
jurisdiction can be exercised only at the
instance of a person who is qualified to the post
and who is a candidate for the post. This Court
in Umakant Saran (Dr.) v. State of Bihar [(1973)
1 SCC 485] held that the appointment cannot
be challenged by one who himself is not
qualified to be appointed. In Kumari Chitra
Ghosh v. Union of India [(1969) 2 SCC 228] a
Constitution Bench of this Court held as under:
"12. The other question which was
canvassed before the High Court and
which has been pressed before us
relates to the merits of the nominations
made to the reserved seats. It seems
to us that the appellants do not have
any right to challenge the nominations
made by the Central Government.
They do not compete for the reserved
seats and have no locus standi in the
matter of nomination to such seats.
The assumption that if nominations to
reserved seats are not in accordance
with the rules all such seats as have
not been properly filled up would be
thrown open to the general pool is
wholly unfounded."
.......
92. It was argued by Mr P.P. Rao, learned
Senior Counsel, appearing for the appellant that
the Division Bench while answering Point 2 in
para 25 that the order of appointment passed
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 51
by the State Government is not a regular
appointment. It has further been observed that
Section 4(2) of the Act and Rule 3 of the Rules
framed do not permit the Government to appoint
the Managing Director on contractual basis. It
was submitted that the finding of the Division
Bench as well as the Single Judge are legally
unsustainable. The Act makes clear distinction
between appointments to the Board and
appointment of officers and servants of the
Board. All appointments of Directors are
"appointments at the pleasure of the
Government". He drew our attention to Section
6(1) of the Act which reads thus:
"6. (1) All directors including the
Chairman and the Managing Director
shall hold office during the pleasure of
the Government."
The expression "contract basis" is only to
indicate that the appointment was to subsist till
the withdrawal of the pleasure of the
Government. It could not be said that the
contractual appointment is made contrary to the
Rules that contemplate regular appointment.
.....
97. In the result, we hold:
(a) That the appellant was not
disqualified for appointment as
Managing Director w.e.f. 1-2-
2004.
(b) There is no bar for appointment
to the post in question on contract
basis. The Government has absolute
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 52
right to appoint persons on contract
basis.
(c) The writ of quo warranto does
not lie if the alleged violation is not of
a statutory provision.
(d) There is no violation of Section
4(2) of the Act and Rule 3 of the Rules
because the appellant had experience
in administration and capacity in
commercial matters before he was
appointed as Managing Director on
contract basis by the Government.
(e) The Government has no doubt
power to make contractual
appointment until further orders. The
power includes the power to make
appointment on substantive basis,
temporary, officiating basis, ad hoc
basis, daily wages or contractual
basis.
(f) The writ filed by Respondents 1
and 2 is motivated.
(g) The petitioners in the writ
petition, Respondent 1 herein--which
is an unregistered association under
the Trade Unions Act cannot maintain
the writ petition.
(h) The findings of legal mala
fides is unsustainable and has no
basis."
54. It is to be noted that the eligibility of the writ
petitioners in appointing to the post of Chief Engineer (Power)
cannot be gone into at this stage and the same has to be
considered while hearing the main writ petition. As stated supra,
since the writ petitioners are affected and/or aggrieved persons
by the impugned re-engagement of the respondents 3 and 4,
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 53
they have locus to file the writ petition exercising jurisdiction
under Article 226 of the Constitution of India.
55. Writ petition under Article 226 of the Constitution of
India may be maintainable against (1) the State (Government);
(ii) an authority; (iii) a statutory body; (iv) an instrumentality or
agency of the State; (v) a company which is financed and owned
by the State; (vi) a private body run substantially on State
funding; (vii) a private body discharging public duty or positive
obligation of public nature; and (viii) a person or a body under
liability to discharge any function under any statute, to compel it
to perform such a statutory function.
56. It is apposite to mention that the power of the High
Court under Article 226 of the Constitution of India, although is
discretionary, no limits can be placed upon its discretion. They
must be exercised along the recognized lines and subject to
certain self-imposed limitations. The expression 'for any other
purpose' in Article 226 of the Constitution of India makes the
jurisdiction of the High Courts more extensive yet the Courts
must exercise the same with certain restraints and within some
parameters.
57. Since the writ petitioners have challenged the
executive action/State action i.e. re-engagement of the
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 54
respondents 3 and 4, who are stated to be retired, as Chief
Engineer and MD/MSPCL/MSPDCL on contract basis
respectively, this Court finds no substance in the submissions
raised by learned Additional Advocate General for the
respondent State as well as the learned senior counsel
appearing for the respondents 3 and 4 that the present writ
petition is not maintainable.
58. That apart, prima facie, the appointment of a
Government servant as Chief Engineer and
MD/MSPCL/MSPDCL on contract basis after his retirement on
attaining the age of superannuation is in contravention of FR 56
and such appointment does not come within the purview of the
second proviso to FR 56(d).
59. In view of the above, the decisions in the cases of
N.C. Singhal (Dr), Rameshwar Das Mehla and B.Srinivasa
Reddy, supra, relied upon by the learned senior counsel for the
third respondent are distinguishable on the facts of the present
case and, therefore, the said decisions are not helpful to the case
of the third respondent.
60. On the other hand, the act of respondent State in
re-engaging the respondents 3 and 4 as Chief Engineer and
MD/MSPCL/MSPDCL on contract basis vide the impugned letter
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 55
dated 5.1.2023 is questionable by the aggrieved person under
Article 226 of the Constitution of India, which the writ petitioners
have rightly done. It is not the case of the respondent State that
nobody is available for appointment by promotion to the post of
Chief Engineer and MD/MSPCL/MSPDCL, except the
respondents 3 and 4. Further, nothing has been produced to
establish that the writ petitioners are totally prevented from
appointing and/or engaging as Chief Engineer and
MD/MSPCL/MSPDCL. The only ineligibility of the writ petitioners
to the said posts pleaded by the respondent State is that the writ
petitioners are Superintending Engineers (Elect) who have not
even completed the probation and are hardly having seven
months of experience as regular Superintending Engineers. The
aforesaid aspect in detail cannot be gone into at this stage and
the same needs to be looked into only after hearing the main writ
petition.
61. The contention of the respondent State that the re-
engagement of the respondents 3 and 4 has been done due to
non-availability of eligible officer as a stop gap arrangement to
take up the responsibility of the said high posts having regard to
the important project being taken up by the Department cannot
be countenanced at this stage and the same will be decided in
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 56
the main writ petition after affording reasonable opportunity to
both sides. Further, the allegation of the writ petitioners that the
decision of the respondent State to re-engage the respondents 3
and 4 on extraneous consideration as would be visibly
substantiated by non-extension and non-re-engagement of
retired Chief Engineer in other Government Engineering
Department which are equally taking up important huge projects
including implementation of national flagship schemes are also
matter of materials/documents to be produced by the respective
parties and the same is also required to be decided only in the
main writ petition and not now. Therefore, in the facts and
circumstances set out, the present writ petition is maintainable
under Article 226 of the Constitution of India at the hands of the
writ petitioners who are serving in the Department and also who
are alleged to be eligible to be considered for the post of Chief
Engineer and MD/MSPCL/MSPDCL on contract basis.
62. In Whirlpool Corporation, supra, the Hon'ble
Supreme Court held:
"14. The power to issue prerogative writs under
Article 226 of the Constitution is plenary in
nature and is not limited by any other provision
of the Constitution. This power can be exercised
by the High Court not only for issuing writs in the
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 57
nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari for the
enforcement of any of the Fundamental Rights
contained in Part III of the Constitution but also
for "any other purpose".
15. Under Article 226 of the Constitution, the
High Court, having regard to the facts of the
case, has a discretion to entertain or not to
entertain a writ petition. But the High Court has
imposed upon itself certain restrictions one of
which is that if an effective and efficacious
remedy is available, the High Court would not
normally exercise its jurisdiction. But the
alternative remedy has been consistently held
by this Court not to operate as a bar in at least
three contingencies, namely, where the writ
petition has been filed for the enforcement of
any of the Fundamental Rights or where there
has been a violation of the principle of natural
justice or where the order or proceedings are
wholly without jurisdiction or the vires of an Act
is challenged. There is a plethora of case-law
on this point but to cut down this circle of
forensic whirlpool, we would rely on some old
decisions of the evolutionary era of the
constitutional law as they still hold the field.
16. Rashid Ahmed v. Municipal Board,
Kairana [1950 SCC 221 : AIR 1950 SC 163 :
1950 SCR 566] laid down that existence of an
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 58
adequate legal remedy was a factor to be taken
into consideration in the matter of granting writs.
This was followed by another Rashid case,
namely, K.S. Rashid & Son v. Income Tax
Investigation Commission [AIR 1954 SC 207 :
(1954) 25 ITR 167] which reiterated the above
proposition and held that where alternative
remedy existed, it would be a sound exercise of
discretion to refuse to interfere in a petition
under Article 226. This proposition was,
however, qualified by the significant words,
"unless there are good grounds therefor", which
indicated that alternative remedy would not
operate as an absolute bar and that writ petition
under Article 226 could still be entertained in
exceptional circumstances.
17. A specific and clear rule was laid down
in State of U.P. v. Mohd. Nooh [AIR 1958 SC
86 : 1958 SCR 595] as under:
"But this rule requiring the exhaustion of
statutory remedies before the writ will be
granted is a rule of policy, convenience and
discretion rather than a rule of law and
instances are numerous where a writ of
certiorari has been issued in spite of the fact
that the aggrieved party had other adequate
legal remedies."
18. This proposition was considered by a
Constitution Bench of this Court in A.V.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 59
Venkateswaran,Collector of Customs v. Ramch
and Sobhraj Wadhwani [AIR 1961 SC 1506 :
(1962) 1 SCR 753] and was affirmed and
followed in the following words:
"The passages in the judgments of this Court
we have extracted would indicate (1) that the
two exceptions which the learned Solicitor
General formulated to the normal rule as to the
effect of the existence of an adequate
alternative remedy were by no means
exhaustive, and (2) that even beyond them a
discretion vested in the High Court to have
entertained the petition and granted the
petitioner relief notwithstanding the existence of
an alternative remedy. We need only add that
the broad lines of the general principles on
which the Court should act having been clearly
laid down, their application to the facts of each
particular case must necessarily be dependent
on a variety of individual facts which must
govern the proper exercise of the discretion of
the Court, and that in a matter which is thus pre-
eminently one of discretion, it is not possible or
even if it were, it would not be desirable to lay
down inflexible rules which should be applied
with rigidity in every case which comes up
before the Court."
19. Another Constitution Bench decision
in Calcutta Discount Co. Ltd. v. ITO,
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 60
Companies Distt. I [AIR 1961 SC 372 : (1961)
41 ITR 191] laid down:
"Though the writ of prohibition or certiorari
will not issue against an executive authority, the
High Courts have power to issue in a fit case an
order prohibiting an executive authority from
acting without jurisdiction. Where such action of
an executive authority acting without jurisdiction
subjects or is likely to subject a person to
lengthy proceedings and unnecessary
harassment, the High Courts will issue
appropriate orders or directions to prevent such
consequences. Writ of certiorari and prohibition
can issue against the Income Tax Officer acting
without jurisdiction under Section 34, Income
Tax Act."
20. Much water has since flown under the
bridge, but there has been no corrosive effect
on these decisions which, though old, continue
to hold the field with the result that law as to the
jurisdiction of the High Court in entertaining a
writ petition under Article 226 of the
Constitution, in spite of the alternative statutory
remedies, is not affected, specially in a case
where the authority against whom the writ is
filed is shown to have had no jurisdiction or had
purported to usurp jurisdiction without any legal
foundation."
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 61
63. In Ghulam Qadir, supra, the Hon'ble Supreme
Court held thus:
"38. There is no dispute regarding the legal
proposition that the rights under Article 226 of
the Constitution of India can be enforced only
by an aggrieved person except in the case
where the writ prayed for is for habeas corpus
or quo warranto. Another exception in the
general rule is the filing of a writ petition in public
interest. The existence of the legal right of the
petitioner which is alleged to have been violated
is the foundation for invoking the jurisdiction of
the High Court under the aforesaid article. The
orthodox rule of interpretation regarding the
locus standi of a person to reach the court has
undergone a sea change with the development
of constitutional law in our country and the
constitutional courts have been adopting a
liberal approach in dealing with the cases or
dislodging the claim of a litigant merely on
hypertechnical grounds. If a person
approaching the court can satisfy that the
impugned action is likely to adversely affect his
right which is shown to be having source in
some statutory provision, the petition filed by
such a person cannot be rejected on the ground
of his not having the locus standi. In other
words, if the person is found to be not merely a
stranger having no right whatsoever to any post
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 62
or property, he cannot be non-suited on the
ground of his not having the locus standi.
64. The Hon'ble Supreme Court in the case of Dr. DC
Wadha, supra, observed that a constitutional authority cannot do
indirectly what it is not permitted to do directly. If there is a
constitutional provision inhibiting the constitutional authority from
doing an act, such provision cannot be allowed to be defeated by
adoption of any subterfuge.
65. At this stage, it would be appropriate to extract the
eligibility criteria set out in the recruitment rules. The recruitment
rules for the post of Additional Chief Engineer in Power
Department stipulates as under:
Promotion
"Superintending Engineer or its equivalent with
5 (five) years regular service in the grade of
Departments concerned possessing Degree in
Civil for Civil post; Mechanical for Mechanical
and Electrical post as the case may be."
The same was amended for the first one-time
relaxation vide order dated 19.1.2016 of the
Department and the same is reproduced
hereunder:
"Superintending Engineer (Elect) with 16
(sixteen) years regular service in the grades of
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 63
Superintending Engineer (Elect) and Executive
Engineer (Elect) taken together out of which at
least 2 (two) years regular service in the grade
Superintending Engineer (Elect) and
possessing Degree in Electrical Engineer."
The same was again amended for the second
one-time relaxation vide order dated 20.5.2020
and the same is reproduced hereunder:
"Superintending Engineer or its equivalent with
2 (two) years regular service in the grade in
Power Department possessing Degree in Civil
for Civil post; Mechanical for Mechanical and
Electrical post as the case may be."
The recruitment rules for the post of Chief Engineer in Power
Department stipulates as under:
Promotion
"Additional Chief Engineers having 3 (three)
years regular service in the grade in the
Department concerned, failing which, Additional
Chief Engineer having 7 (seven) years regular
service in the grades of Additional Chief
Engineer and Superintending Engineer or its
equivalent put together."
The same was amended for the first one-time
relaxation notified vide order dated 7.9.2019
and the same is reproduced hereunder:
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 64
"Additional Chief Engineer (Elect) with 14 years
regular combined service in grades of
Additional Chief Engineer (Elect),
Superintending Engineer (Elect) and Executive
Engineer (Elect) taken together out of which at
least 2 (two) years regular service in the grade
of Additional Chief Engineer (Elect) possessing
Degree in Electrical Engineering."
The same was amended for the second one-
time relaxation notified vide order dated
21.10.2021 as under:
"Engineers who have completed 20 (twenty)
years of regular service in Grade of Assistant
Engineer (Elect), Executive Engineer (Elect),
Superintending Engineer (Elect) and Additional
Chief Engineer (Elect) taken together and
possessing Degree in Electrical Engineering."
66. It is no doubt true that the one-time relaxation rules
are not hard and fast recruitment rules, but are amended from
time to time to suit the convenience of the concerned officers,
who are to get promoted. In view of the above, there is no force
in the argument raised by the learned counsel for the
respondents that the writ petitioners are not eligible for promotion
to the higher post based on the amendable recruitment rules as
per ones suitability and convenience. As stated supra, the writ
petitioners are aggrieved persons and they have locus to
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 65
question the re-engagement of the respondents 3 and 4.
Therefore, the decisions in the cases of Anand Sharadchandra
Oka and Ayaaubkhan Noorkhan Pathan, supra, relied upon by
the learned senior counsel for the fourth respondent are not
helpful to the case of the respondents, particularly the fourth
respondent.
67. Insofar as the contention of the private respondents
3 and 4 as well as the respondent State that the re-engagement
of the respondents 3 and 4 is a policy decision of the State and
the same cannot be interfered with by the Courts under writ
jurisdiction is concerned, generally the Courts in India will not
interfere with the policy decision of the State. In this regard, it is
settled law that the Court would not ordinarily interfere with the
policy decision of the executive unless the same can be faulted
on the grounds of malafides, unreasonableness, arbitrariness or
unfairness, in which case the policy would render itself to be
declared unconstitutional. Here, prima facie, there appears to be
no record to show that the re-engagement of the respondents 3
and 4 is the mode of appointment mandated by the recruitment
rules and the impugned order does not indicate that re-
engagement of the respondents 3 and 4 is permissible as per the
relevant recruitment rules.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 66
68. The argument of the learned senior counsel for the
writ petitioners that the impugned letter being in derogation and
in violation of the relevant recruitment rules and regulations of
the State Government cannot be brushed aside. Nothing has
been produced by the official respondents to show that the re-
engagement and extension of service of the respondents 3 and
4 is an act done in public interest.
69. It is apposite to mention at this juncture that the
scope of judicial review in policy matters is no longer res integra.
The doctrine of separation of power under the Constitution is to
be well respected and, therefore, any wing of the Government is
not at liberty to take any action or pass an order in violation of
law or rule framed under the provision of the Constitution of India.
70. It also appears that a Complaint Case No.6 of 2022
is pending against the respondents 3 and 4 before Manipur
Lokayukta in a scam of corruption of Rs.200 crore in an important
Government of India flagship programme implemented by the
MSPDCL under the Power Department, Government of Manipur.
The aforesaid would prima facie show that re-engaging such
officials to the top post would send a wrong message to the public
in general that the State Government is encouraging the
corruption. On this count, the writ petition challenging the
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 67
impugned letter dated 5.1.2023 filed by the writ petitioners is very
well maintainable.
71. At this juncture, placing reliance upon the decision
of the Hon'ble Supreme Court in the case of Jasbhai Motibhai
Desai, supra, the learned Additional Advocate General argued
that it is demonstrably clear that the writ petitioners have not
been denied or deprived of a legal right and they have not
sustained injury to any legally protected interest and, therefore,
the writ petition is not maintainable.
72. In Jasbhai Motibhai Desai, supra, the Hon'ble
Supreme Court held:
"48. In the light of the above discussion, it is
demonstrably clear that the appellant has not
been denied or deprived of a legal right. He has
not sustained injury to any legally protected
interest. In fact, the impugned order does not
operate as a decision against him, much less
does it wrongfully affect his title to something.
He has not been subjected to a legal wrong. He
has suffered no legal grievance. He has no legal
peg for a justiciable claim to hang on. Therefore
he is not a "person aggrieved" and has no locus
standi to challenge the grant of the no-objection
certificate.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 68
49. It is true that in the ultimate analysis, the
jurisdiction under Article 226 in general, and
certiorari in particular is discretionary. But in a
country like India where writ petitions are
instituted in the High Courts by the thousand,
many of them frivolous, a strict ascertainment,
at the outset, of the standing of the petitioner to
invoke this extraordinary jurisdiction, must be
insisted upon. The broad guidelines indicated
by us, coupled with other well-established self-
devised rules of practice, such as the availability
of an alternative remedy, the conduct of the
petitioner etc. can go a long way to help the
courts in weeding out a large number of writ
petitions at the initial stage with consequent
saving of public time and money.
50. While a Procrustean approach should be
avoided, as a rule, the Court should not interfere
at the instance of a "stranger" unless there are
exceptional circumstances involving a grave
miscarriage of justice having an adverse impact
on public interests. Assuming that the appellant
is a "stranger", and not a busybody, then also
there are no exceptional circumstances in the
present case which would justify the issue of a
writ of certiorari at his instance. On the contrary,
the result of the exercise of these discretionary
powers, in his favour, will, on balance, be
against public policy. It will eliminate healthy
competition in this business which is so
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 69
essential to raise commercial morality; it will
tend to perpetuate the appellant's monopoly of
cinema business in the town; and above all, it
will in effect, seriously injure the fundamental
rights of Respondents 1 and 2, which they have
under Article 19(1)(g) of the Constitution, to
carry on trade or business subject to
"reasonable restrictions imposed by law".
73. The decision in Jasbhai Motibhai Desai, supra, is
distinguishable from the facts of the present case. As stated
supra, the writ petitioners have established their locus to invoke
the writ jurisdiction under Article 226 of the Constitution of India.
Therefore, the decision in Jasbhai Motibhai Desai, supra, relied
upon the learned Additional Advocate General is not much
helpful to the case of the respondents 1 and 2.
74. It is settled position of law that when the impugned
order ex facie is illegal and existence of breach of mandatory
statutory provision, a writ petition under Article 226 of the
Constitution of India cannot be dismissed on the ground of locus.
In the instant case, as stated supra, prima facie, the writ
petitioners have established that their legitimate right has been
deprived of by the impugned letter, apart from violation of rule
canvassed by them.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 70
75. In Navjyoti Coop. Group Housing Society, supra,
the Hon'ble Supreme Court held:
"15. It also appears to us that in any event the
new policy decision as contained in the
impugned memorandum of January 20, 1990
should not have been implemented without
making such change in the existing criterion for
allotment known to the Group Housing
Societies if necessary by way of a public notice
so that they might make proper representation
to the concerned authorities for consideration of
their viewpoints. Even assuming that in the
absence of any explanation of the expression
"first come first served" in Rule 6(vi) of Nazul
Rules there was no statutory requirement to
make allotment with reference to date of
registration, it has been rightly held, as a matter
of fact, by the High Court that prior to the new
guideline contained in the memo of January 20,
1990 the principle for allotment had always
been on the basis of date of registration and not
the date of approval of the list of members. In
the brochure issued in 1982 by the DDA even
after Gazette notification of Nazul Rules on
September 26, 1981 the policy of allotment on
the basis of seniority in registration was clearly
indicated. In the aforesaid facts, the Group
Housing Societies were entitled to 'legitimate
expectation' of following consistent past
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 71
practice in the matter of allotment, even though
they may not have any legal right in private law
to receive such treatment. The existence of
'legitimate expectation' may have a number of
different consequences and one of such
consequences is that the authority ought not to
act to defeat the 'legitimate expectation' without
some overriding reason of public policy to justify
its doing so. In a case of 'legitimate expectation'
if the authority proposes to defeat a person's
'legitimate expectation' it should afford him an
opportunity to make representations in the
matter. In this connection reference may be
made to the discussions on 'legitimate
expectation' at page 151 of Volume 1(1)
of Halsbury's Laws of England, 4th edn. (re-
issue). We may also refer to a decision of the
House of Lords in Council of Civil Service
Unions v. Minister for the Civil Service [(1984) 3
All ER 935] . It has been held in the said
decision that an aggrieved person was entitled
to judicial review if he could show that a
decision of the public authority affected him of
some benefit or advantage which in the past he
had been permitted to enjoy and which he
legitimately expected to be permitted to
continue to enjoy either until he was given
reasons for withdrawal and the opportunity to
comment on such reasons.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 72
16. It may be indicated here that the doctrine of
'legitimate expectation' imposes in essence a
duty on public authority to act fairly by taking
into consideration all relevant factors relating to
such 'legitimate expectation'. Within the
conspectus of fair dealing in case of 'legitimate
expectation', the reasonable opportunities to
make representation by the parties likely to be
affected by any change of consistent past
policy, come in. We, have not been shown any
compelling reasons taken into consideration by
the Central Government to make a departure
from the existing policy of allotment with
reference to seniority in registration by
introducing a new guideline. On the contrary, Mr
Jaitley the learned counsel has submitted that
the DDA and/or Central Government do not
intend to challenge the decision of the High
Court and the impugned memorandum of
January 20, 1990 has since been withdrawn.
We therefore feel that in the facts of the case it
was only desirable that before introducing or
implementing any change in the guideline for
allotment, an opportunity to make
representations against the proposed change in
the guideline should have been given to the
registered Group Housing Societies, if
necessary, by way of a public notice."
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 73
76. Thus, prima facie, it is clear that the doctrine of
legitimate expectation imposes a duty on the respondents 1 and
2 to act fairly by taking into consideration all relevant factors
relating to such legitimate expectation. Within the conspectus of
fair dealing in case of legitimate expectation, the right of eligible
persons was affected by the policy of the State.
77. In IRTC, supra, the Hon'ble Supreme Court
observed as under:
"2. By the impugned order, the High Court has
interfered with the Catering Policy of 2005 in
respect of reservations. By now it is a well-
settled principle of law that policy decisions of
the Government should not be interfered with in
a routine manner unless the policy is contrary to
the provisions of statutory rules or of the
Constitution. Nothing has been brought to our
notice that the Policy is contrary to the
provisions of the statutory rules or the
Constitution. For this simple reason, we set
aside the order of the High Court impugned
herein."
78. In M.Selvakumar, supra, the Hon'ble Supreme
Court held:
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 74
"47. There is one more reason due to which we
are unable to subscribe to the view taken by the
Madras High Court and the Delhi High Court.
The horizontal reservation and relaxation for
physically handicapped category candidates for
Civil Services Examination, is a matter of
governmental policy and the Government after
considering the relevant materials has
extended relaxation and concessions to the
physically handicapped candidates belonging
to the reserved category as well as general
category. It is not in the domain of the courts to
embark upon an inquiry as to whether a
particular public policy is wise and acceptable
or whether better policy could be evolved. The
Court can only interfere if the policy framed is
absolutely capricious and non-informed by
reasons, or totally arbitrary, offending the basic
requirement of Article 14 of the Constitution."
79. In Union of India v. Dinesh Engineering
Corporation, (2001) 8 SCC 491, the Hon'ble Supreme Court
held:
"12. There is no doubt that this Court has held
in more than one case that where the decision
of the authority is in regard to the policy matter,
this Court will not ordinarily interfere since these
policy matters are taken based on expert
knowledge of the persons concerned and
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 75
courts are normally not equipped to question
the correctness of a policy decision. But then
this does not mean that the courts have to
abdicate their right to scrutinize whether the
policy in question is formulated keeping in mind
all the relevant facts and the said policy can be
held to be beyond the pale of discrimination or
unreasonableness, bearing in mind the material
on record. .... Any decision, be it a simple
administrative decision or a policy decision, if
taken without considering the relevant facts,
can only be termed as an arbitrary decision. If
it is so, then be it a policy decision or otherwise,
it will be violative of the mandate of Article 14 of
the Constitution."
80. Anent the issue of the scope of judicial review in
interfering with the policy decision, the law is well settled by the
Hon'ble Apex Court in the case of DDA v. Joint Action
Committee, Allottee of SFS Flats, (2008) 2 SCC 672, wherein,
it has been held as under:
"59. An Executive order terms as a policy
decision is not beyond the pale of judicial
review. Whereas the superior courts may not
interfere with the natty grittiest of the policy, or
substitute one by the other but it will not be
correct to contend that the court shall like its
judicial hands off, when a plea is raised that the
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 76
impugned decision is a policy decision.
Interference therewith on the part of the
superior court would not be without jurisdiction
as it is subject to judicial review.
60. Broadly, a policy decision is subject to
judicial review on the following grounds:-
(a) if it is unconstitutional;
(b) if it is de'hors the provisions of the
Act and Regulations;
(c) if the delegate has acted beyond its
power of delegation;
(d) if the executive policy is contrary to
the statutory or a larger policy."
81. The following aspects disturbed the mind of this
Court in interfering with the policy decision of the respondent
State:
(i) There appears to be no record to show
that the re-engagement of the
respondents 3 and 4 is the mode of
appointment mandated by the recruitment
rules.
(ii) The impugned order does not indicate
that the re-engagement of the
respondents 3 and 4 is permissible as per
the relevant recruitment rules.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 77
(iii) Nothing has been produced by the
respondents to show that in other
departments this is the position of re-
engaging the retired officials.
(iv) Post of Chief Engineer is not a specialized
post.
(v) Past practice would show that the
Superintending Engineers were given in-
charge post of Chief Engineer.
(vi) The third respondent is the beneficiary of
frequent relaxation of recruitment rules
even to the extent of creating a
supernumerary post especially for him.
(vii) The respondents 3 and 4 are the main
accused in huge scam of corruption in
relation to the implementation of
SAUBHAGYA scheme by the MSPDCL
involving an amount of Rs.200 crore, for
which cognizance was taken by the
Manipur Lokayukta in Complaint Case
No.6 of 2022 against the respondents 3
and 4.
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 78
82. It is settled law that Article 14 and 16(1) of the
Constitution of India provides to every employee otherwise
eligible for promotion or who comes within the zone of
consideration, a fundamental right to be considered for
promotion and that if a person satisfies the eligibility and zone
criteria but is not considered for promotion, then there will be a
clear infraction of his fundamental right to be considered for
promotion, which is his personal right.
83. As stated supra, the case of the writ petitioners is
that they are the only officers working in the grade of
Superintending Engineer in the Power Department and now
discharging duties in MSPCL on deputation and have gathered
considerable experience in the field for more than 30 years and,
therefore, they are competent to hold and discharge the duty of
any responsible key post. It is also the contention of the writ
petitioners that they are in line to hold the highest post in the
Power Department even on in-charge/temporary basis being the
senior most officers as being done in other Government
Departments instead of resorting to extension of service or re-
engagement of retired employees.
84. Since the writ petitioners are working as
Superintending Engineers in the Power/Electricity Department
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 79
and they have challenged the re-engagement of the respondents
3 and 4 as Chief Engineer and Managing Director and since the
writ petitioners claim that they are eligible for appointment as in-
charge Chief Engineer, this Court is of the prima facie view that
the writ petitioners have locus standi to question the re-
engagement of the respondents 3 and 4 and they have also
legally entitled to maintain the writ petition.
85. At the cost of repetition, it is reiterated that vide
interim order dated 25.1.2023, this Court considered the
maintainability issue raised by the respondents and after
considering the locus of the writ petitioners, this Court admitted
the writ petition. Since the interim order dated 25.1.2023 is
contested one and if really the respondents are aggrieved by the
admission of the writ petition, they ought to have challenge the
said order qua admission of the writ petition before the higher
forum. However, the respondents have failed to do so.
86. As stated supra, FR 56(d) clearly lays down that no
Government servant shall be granted extension in service
beyond the age of retirement of 60 years except in few cases as
enumerated therein. The writ petitioners pleaded that the
respondents 3 and 4 are not entitled for extension or re-
engagement. As stated supra, though the merits of the matter
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 80
cannot be gone into at this stage, prima facie, this Court finds
that there is substance in the challenge made in the writ petition.
Under these circumstances, this Court is of the view that the writ
petition filed by the writ petitioners challenging the re-
engagement of the respondents 3 and 4 vide impugned letter
dated 5.1.2023 is maintainable and, resultantly, the writ
petitioners have locus to file the writ petition to challenge the
impugned order dated 5.1.2023. Point nos.1 and 2 are answered
accordingly. Resultantly, MC (WP(C)) Nos.23, 24 and 50 of 2023
filed to dismiss the writ petition as not maintainable are liable to
be dismissed.
87. Both the official and private respondents have filed
miscellaneous cases seeking to vacate the interim order dated
25.1.2023 passed in the writ petition contending that the interim
order amounts to grant of main relief in the writ petition and,
therefore, the same is liable to be vacated. Further, the writ
petitioners are not entitled to seek promotion to the post of Chief
Engineer as they are working only as Superintending Engineer
and they should wait for another four years for further promotion.
88. As stated supra, while considering the issue qua
maintainability of the writ petition and the locus of the writ
petitioners, this Court held that the writ petitioners have locus to
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 81
file the writ petition and the writ petition is very well maintainable
at the hands of the writ petitioners.
89. By the interim order dated 25.1.2023 while holding
that the writ petition is maintainable, this Court observed that
though the writ petitioners are working as Superintending
Engineer in the respondent department and the case of the
petitioners is that they are eligible to appoint as in-charge Chief
Engineer in the respondent department since the respondent
department already passed several orders to that effect. In the
interim order dated 25.1.2023, this Court also recorded that as
per the order dated 31.5.2022 of the respondent department, one
Ch. Ibopishak Singh who worked as Superintending Engineer
(Elect) was given in-charge of Chief Engineer (Power) and as per
another order dated 22.5.2003, one Ng. Tikendrajit Singh who
worked as Superintending Engineer (Elect) was given to hold the
in-charge of Chief Engineer (Power) and as per the order dated
11.10.2004 one H.Bihari Singh who worked as Superintending
Engineer was given the charge of Chief Engineer (Power). The
aforesaid orders have not been disputed by the respondents,
particularly the respondents 1 and 2.
90. On a perusal of the orders dated 31.5.2002,
22.5.2003 and 11.10.2004, it is seen that the Superintending
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 82
Engineer working in the respondent department are given in-
charge post of Chief Engineer. While granting interim order dated
25.1.2023, this Court also observed "when the order dated
20.04.2000 is in existence till date, the present impugned order
dated 5.1.2023 was issued in total violation of the above order".
Finding that the writ petitioners have made out a prima facie case
for grant of the interim order, this Court vide interim order dated
25.1.2023 stayed the impugned letter dated 5.1.2023 and its
consequential and subsequent action till next date and the said
order was subsequently extended from time to time and is in
force.
91. No valid grounds have been made to vacate the
interim order dated 25.1.2023 and the grounds raised by the
respondents to vacate the interim order dated 25.1.2023 are
baseless and unsustainable. In the earlier paragraphs, this Court
held that the writ petitioners have locus to challenge the
impugned letter and the writ petition is maintainable at the hands
of the writ petitioners. Since the interim order dated 25.1.2023
staying the impugned letter dated 5.1.2023 is upon proving the
prima facie case by the writ petitioners, this Court is of the view
that the same is to be made absolute. Accordingly, the interim
order dated 25.1.2023 passed in the writ petition is made
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
P a g e | 83
absolute. Resultantly, MC (WP(C)) Nos.46, 51 and 56 of 2023
seeking to vacate the interim order dated 25.1.2023 are liable to
be dismissed. Point No.3 is answered accordingly.
92. In the result, MC (WP(C)) Nos.46, 23, 24, 50, 51
and 56 of 2023 are dismissed. No costs.
ACTING CHIEF JUSTICE
FR/NFR
Sushil
MC (WP(C)) Nos. 46,23,24,50,51 and 56 of 2023 (Ref:- WP(C) No. 49 of 2023)
