Luwangthem Jilla Singh vs The State Of Manipur Through The ...
2023 Latest Caselaw 247 Mani

                                                           SHOUGRA Digitally signed

                               [1]                         KPAM
                                                                    by
                                                                    SHOUGRAKPAM
                                                                    DEVANANDA
                                                           DEVANAN SINGH
                                                                    Date: 2023.10.04
                                                           DA SINGH 14:06:11 +05'30'

              IN THE HIGH COURT OF MANIPUR
                           AT IMPHAL
                    WP(C) No. 919 of 2021



1. Luwangthem Jilla Singh, aged about 60 years, S/o L. Birahari
   Singh, a resident of Nepra Company, BPO Athokpam Khunou,
   P.O. Thoubal and P.S. Thoubal, Imphal West, District, Manipur,
   Pin-795138.
2. Shri Thiyam Sudhiranjan Singh, aged about 60 years, S/o Late
   Th. Munindrakumar Singh, a resident of Keishamthong
   Moirangningthou Leirak, P.O. & P.S. Imphal, Imphal West District,
   Manipur, Pin - 795001.
                                                       ... Petitioners
                           -Versus-
   1. The State of Manipur through the Commissioner of Education
      (School), Government of Manipur, Manipur Secretariat, P.O. &
      P.S. Imphal, Imphal West District, Manipur, Pin - 795001.
   2. The Director of Education (S), P.O. & P.S. Lamphel, Imphal
      West District, Pin - 795004.
                                                   ... Respondents

With WP(C) No. 45 of 2022

1. Luwangthem Jilla Singh, aged about 60 years, S/o L. Birahari Singh, a resident of Nepra Company, BPO Athokpam Khunou, P.O. Thoubal and P.S. Thoubal, Imphal West, District, Manipur, Pin-795138.

2. Shri Thiyam Sudhiranjan Singh, aged about 60 years, S/o Late Th. Munindrakumar Singh, a resident of Keishamthong Moirangningthou Leirak, P.O. & P.S. Imphal, Imphal West District, Manipur, Pin - 795001.

... Petitioners

-Versus-

1. The State of Manipur through the Commissioner of Education (School), Government of Manipur, Manipur Secretariat, P.O. & P.S. Imphal, Imphal West District, Manipur, Pin - 795001.

[2]

2. The Director of Education (S), P.O. & P.S. Lamphel, Imphal West District, Pin - 795004.

3. The Manipur Public Service Commission through its Secretary, North AOC, DM Road near Hotel Imphal - 795001.

...Official Respondents

4. Shri Kh. Sanayaima Singh

5. Shri I. Jayentakumar Singh

6. Shri Y. Surendro Singh

7. Shri Ch. Jayenta Singh

8. Smt. K. Somobala Devi

9. Shri Ch. Nilakamal Sharma

10. Shri N. Arunkumar Singh

11. Shri M. Rameshwar Singh

12. Shri W. Ibomcha Singh

13. Shri M. Ranjit Singh

14. Smt. Neera Maisnam

15. Shri P. Nipendro Singh

16. Shri R.K. Gambhirjit Singh

17. Smt. N. Bijayanti Devi

18. Smt. N. Binanda Devi

19. Smt. Th. Radhamani Devi

20. Smt. L. Reeta Devi

21. Smt. Th. Surjabala Devi

22. Smt. L. Reeta Devi

23. Shri Kh. Achouba Meitei

24. Shri M. Ramesh Singh

25. Smt. M. Sobita Devi

26. Smt. L. Kamala Devi

27. Shri O. Joy Singh

28. Shri N. Rajen Singh

29. Smt. W. Sachimala Devi

30. Smt. Vinita Devi Elangbam

31. Smt. N. Nomita Devi

32. Shri Acharya Ghanashyam

33. Shri Joseph Thienkhopao Mate ... Private Respondents With [3]

WP(C) No. 130 of 2022

1. Luwangthem Jilla Singh, aged about 60 years, S/o L. Birahari Singh, a resident of Nepra Company, BPO Athokpam Khunou, P.O. Thoubal and P.S. Thoubal, Imphal West, District, Manipur, Pin-795138.

2. Shri Thiyam Sudhiranjan Singh, aged about 60 years, S/o Late Th. Munindrakumar Singh, a resident of Keishamthong Moirangningthou Leirak, P.O. & P.S. Imphal, Imphal West District, Manipur, Pin - 795001.

... Petitioners

-Versus-

1. The State of Manipur through the Commissioner of Education (School), Government of Manipur, Manipur Secretariat, P.O. & P.S. Imphal, Imphal West District, Manipur, Pin - 795001.

2. The Director of Education (S), P.O. & P.S. Lamphel, Imphal West District, Pin - 795004.

... Respondents

B E F O R E HON'BLEMR. JUSTICE AHANTHEMBIMOL SINGH For the Petitioners :: Mr. N. Ibotombi, Senior Advocate asstd. by Mr. A. Rommel, Advocate For the respondents :: Mr. R.S. Reisang, Senior Advocate asstd. by Ms. Timmiwon Raihing & Mr. A. Vashum, Govt. Advocate Date of Hearing :: 12-09-2023 Date of Judgment & Order :: 04-10-2023

JUDGMENT & ORDER

[1] Heard Mr. N. Ibotombi, learned senior counsel assisted by

Mr. A. Rommel, learned counsel appearing for the petitioners,

Mr. A. Vashum, learned GA appearing for the respondents No. 1 and 2

and Mr. R.S. Reisang, learned senior counsel assisted by Ms. Timmiwon

Raihing, learned counsel appearing for the respondents No. 3. None

appeared for the private respondents, despite service of notice.

[4]

As the grievances and reliefs sought for in the present three writ

petitions are inter-related, all the three writ petitions were heard jointly and

the same are being disposed of by this common judgment and order.

[2] The brief fact of the present cases is that both the petitioners were

initially appointed as Lecturer (Geography) and Lecturer (Statistics) on

regular basis in the Government Higher Secondary Schools, Education

Department, Government of Manipur by an order dated 26-10-1988. After

serving about thirty years as Lecturer of Higher Secondary Schools, both

the petitioners were promoted to the post of Vice-Principal of Higher

Secondary School on regular basis by an order dated 30-10-2018. The next

promotional post from the post of Vice-Principal of Higher Secondary

School is the post of Principal, Higher Secondary School. Under the

recruitment rules for the post of Principal, Higher Secondary Schools, the

method of recruitment is by promotion from amongst the following feeder

posts:-

"Vice-Principal of Higher Secondary Schools possessing B.T./B.Ed./Equivalent Diploma from a recognized University/ Institution with 5 (five) years regular service in the grade;

Failing which

"Vice-Principal of Higher Secondary Schools possessing B.T./B.Ed./Equivalent Diploma from a recognized University/ Institution with 7 (seven) years regular service as Vice- Principal and Lecturer put together;

Failing which

Lecturer of Higher Secondary Schools possessing 2nd Class Master's Degree and B.T./B.Ed./Equivalent Diploma from a recognized University/ Institution with 10 (ten) years regular service in the grade, provided that not more than 30% of the vacancies to be filled by promotion from Lecturers shall be from amongst the Lecturers of the erstwhile Government Aided/ Private Higher Secondary Schools who were later [5]

absorbed in Government service and the remaining vacancies from amongst the other Lecturers".

[3] The petitioners, having rendered more than 30 years regular

service as Lecturer of Higher Secondary Schools and more than seven

years regular service as Vice-Principal and Lecturer put together, became

eligible for promotion to the post of Principal, Higher Secondary Schools a

long time back, however, as the authorities did not hold any DPC in time,

the cases of the petitioners for their promotion to the post of Principal,

Higher Secondary Schools could not be considered for a long time. The

process for holding DPC for appointment by promotion to 23 (twenty three)

vacant post of Principal of Higher Secondary Schools was initiated by the

authorities with the publication of the Final Seniority List of Vice-Principals

of Government Higher Secondary Schools on 14-12-2020. In the said Final

Seniority List, the name of the petitioner No. 1 is at Sl. No. 5 and the name

of the petitioner No. 2 is at Sl. No. 10 and as such, both of them were within

the zone of consideration for promotion against the aforesaid twenty three

vacant post of Principal of Higher Secondary Schools.

[4] As the post of Principal of Higher Secondary Schools is a

Class-I post, consultation with the Manipur Public Service Commission

(MPSC) was required as per rules, however, at that relevant point of time,

the MPSC remained non-functional. In order to facilitate promotion to

various Class-I and Class-II posts under the State Government, including

the post of Principals of Government Higher Secondary Schools, the

Department of Personnel & Administrative Reforms (PD), Government of [6]

Manipur, issued a Notification dated 01-02-2021 thereby according

sanction to the exemption of consultation with the Manipur Public Service

Commission with regard to appointment by promotion in the Offices/

Departments under the Government of Manipur during the period till the

existence of the Commission of MPSC. In the said Notification, the

composition of the Departmental Promotion Committee for Class-I and

Class-II posts are as under:-

"Class - I DPC

(i) Chief Secretary, Govt. of Manipur - Chairman

(ii) Commissioner/ Secretary (DP), - Member Govt. of Manipur

(iii) Commissioner/ Secretary of the - Member Department concerned

Class - II DPC

(i) Chief Secretary/ Addl. Chief Secretary, - Chairman Govt. of Manipur

(ii) Commissioner/ Secretary of the - Member Department concerned

(iii) Head of the Department concerned - Member"

[5] After issuance of the said Notification dated 01-02-2021

exempting consultation with the MPSC, the Secretariat, Education (S)

Department, Government of Manipur, issued a Notification dated

23-02-2021 notifying that a DPC meeting for appointment by promotion to

the posts of Principal of Government Higher Secondary Schools will be

held on 25-02-2021 at 02:00 p.m. in the office chamber of the Chief

Secretary, Government of Manipur. Pursuant to the said Notification dated

23-02-2021, a DPC meeting for appointment by promotion to the posts of

Principal of Government Higher Secondary Schools was held on

25-02-2021 and after carefully examining all the cases of the eligible [7]

candidates, the DPC recommended twenty three Vice-Principals of Higher

Secondary Schools of Manipur, including the present two petitioners,

for their appointment by promotion to the posts of Principal of Higher

Secondary Schools, Manipur. However, in the proceeding of the said DPC

meeting, a rider was added at paragraph 13 of the said proceeding to the

effect that "order shall be issued by the Administrative Department after

obtaining concurrence of the Manipur Public Service Commission".

[6] In view of the aforesaid rider, the Administrative Department

could not issue any appointment order in respect of the recommended

candidates and as such, on the next following day i.e., 26-02-2021, the

Administrative Department forwarded the proceeding of the DPC meeting

to the MPSC for obtaining concurrence of the MPSC. However, on the next

following day, the MPSC returned the same by stating that the Commission

was non-functional due to vacancy of the post of Chairman since

20-11-2020 and hence, the request for concurrence could not be

considered by the Commission. Subsequently, when the MPSC became

functional with the appointment of a new Chairperson, the authorities again

re-submitted a proposal to the MPSC for obtaining concurrence of the

MPSC to the recommendation made by the DPC held on 25-02-2021 under

a letter dated 26-06-2021, however, the MPSC returned the same with the

observation that the proposal was beyond the scope of the MPSC. In the

meantime, before the Government issued any appointment order in respect

of the aforesaid recommended candidates for their appointment as [8]

Principal of Higher Secondary Schools, both the petitioners retired from

service w.e.f. 28-02-2021 on attaining the age of superannuation.

Having been aggrieved, the petitioners approached this court by

filing WP(C) No. 919 of 2021 with a prayer for quashing the offending rider

at paragraph 13 of the proceeding of the DPC meeting held on 25-02-2021

and for directing the official respondents to issue appointment orders in

respect of the recommended candidates. In the said writ petition, this court

passed an interim order dated 15-12-2021 directing that the proceeding of

the DPC meeting held on 25-02-2021 and the recommendation made by

the said DPC for promotion of Vice-Principal/ Lecturer of Government

Higher Secondary Schools, Manipur, to the post of Principal of Government

Higher Secondary Schools should not be cancelled without the leave of the

court.

[7] In the affidavit-in-opposition filed by the respondent No 1, it has

been, inter alia, stated that the proceeding of the DPC meeting held on

25-02-2021 had been cancelled by the Government by issuing an order

dated 14-12-2021 and that the State Government subsequently hold a

DPC meeting on 18-12-2021 in consultation with the MPSC for promotion

of thirty Vice-Principals to Principals of Government Higher Secondary

Schools and on the recommendation of the said DPC meeting, the

Government had issued an order dated 28-12-2021 appointing on

promotion twenty nine Vice-Principals to the post of Principals of

Government Higher Secondary Schools. Having been aggrieved, the

petitioners filed WP(C) No. 130 of 2022 assailing the said cancellation order [9]

dated 14-12-2021 and WP(C) No. 45 of 2022 challenging the proceeding

of the DPC meeting held on 18-12-2021 and the order dated 28-12-2021

appointing twenty nine Vice-Principals to the post of Principals of

Government Higher Secondary Schools, Manipur.

[8] Mr. N. Ibotombi, learned senior counsel appearing for the

petitioners submitted that despite having knowledge that the MPSC

was not functional at that relevant time and that exemption from

consultation with the MPSC had already been sanctioned by the

Government and for that matter Class-I DPC and Class-II DPC was

specially constituted for appointment to various Class-I and Class-II posts

under the State Government, the Class-I DPC, which held its meeting on

25-02-2021 for consideration of recommending candidates for appointment

to the posts of Principal of Higher Secondary Schools, in a whimsical,

capricious and arbitrary manner added the offending rider at paragraph 13

of the proceeding of the meeting for obtaining concurrence of the MPSC

before issuing appointment order by the Administrative Department,

thereby rendering the recommendation of the said DPC in respect of the

petitioners futile and meaningless. The senior counsel vehemently

submitted that the said offending rider was redundant and was not at all

necessary as exemption from consultation with the MPSC had already been

sanctioned by the Government and that the consequence of the said rider

proved to be very costly to the petitioners as it has deprived arbitrarily the

petitioners' valuable right for their promotion to the post of Principal before

their retirement from service on attaining the age of superannuation.

[10]

[9] The learned senior counsel further submitted that had there been

no observation for obtaining the concurrence of the MPSC while making the

recommendation, order for appointment by promotion to the post of

Principal of Higher Secondary Schools would have already been issued by

the Department of Education (S), enabling the petitioners to enjoy the fruit

of their thirty three long period of dedicated service and would have had a

satisfied retired life in the post of Principal of Higher Secondary School,

however, due to the aforesaid offending rider, the opportunity of promotion

before their retirement had been arbitrary denied to the petitioners.

[10] The learned senior counsel also submitted that in the case of

appointment by promotion in respect of the post of Under Secretary

(Category-IV) of the Manipur Secretariat Service, the Class-I DPC

constituted under the Notification dated 01-02-2021, while making the

recommendation did not put any rider for obtaining concurrence of the

MPSC before issuing appointment order and accordingly, the Department

of Personnel & Administrative Reforms issued their appointment order

without consulting the MPSC and the recommended candidates had

already been given promotion to the next higher post. It has been

strenuously submitted by the learned senior counsel that in the case of the

petitioners for their appointment by promotion to the post of Principal,

Higher Secondary School, the Class-I DPC put the offending rider while

making its recommendation for obtaining the concurrence of the MPSC

before issuing appointment order, despite having knowledge about the

non-functioning of the MPSC and granting of prior sanction of the [11]

Government exempting consultation with the MPSC. The learned counsel

vehemently submitted that the Class-I DPC had acted in an arbitrary,

capricious and whimsical manner and that the petitioners have not been

given equal treatment and accordingly, the impugned offending rider made

by the DPC at paragraph 13 of their recommendation are liable to be quash

and set aside and the petitioners are entitled to get their promotion on the

basis of the recommendation made by the said DPC.

[11] It has been submitted that a duly constituted Class-I DPC held its

meeting on 25-02-2021 and recommended the names of the twenty three

Vice-Principals, including the petitioners, for appointment by promotion to

the post of Principal of Higher Secondary Schools and that this court

passed an interim order on 15-12-2021 in WP(C) No. 919 of 2021 directing

that the proceeding of the said DPC meeting and recommendation made

by the said DPC for promotion of Vice-Principals to the posts of Principal of

Government Higher Secondary Schools should not be cancelled without

the leave of this court. It has also been submitted that during the

subsistence of the said recommendation made by the DPC in its meeting

held on 25-02-2021 and the said interim order of this court, the State

Government made a fresh recommendation in respect of the same post

and on the basis of the fresh recommendation, the MPSC conducted

another DPC on 18-12-2021 and recommended twenty nine candidates for

appointment by promotion to the posts of Principal of Higher Secondary

Schools. On the basis of the said recommendation, the State Government

issued the appointment order dated 28-12-2021 appointing the said [12]

newly recommended candidates to the posts of Principal of Higher

Secondary Schools. According to the learned senior counsel, the

subsequent recommendation and the appointment made on the basis of

the subsequent recommendation is illegal and invalid as such

recommendation had been made during the subsistence of the earlier

recommendation and in gross violation of the interim order passed by

this court. The learned senior counsel, accordingly, submitted that the

subsequent recommendation and the appointment order made pursuant to

such recommendation are liable to be quash and set aside.

[12] It has also been submitted by the learned senior counsel that

in view of the sequence of events that has been put up before this court,

it is quite clear that records were manipulated and the impugned

cancellation order dated 14-12-2021 had been issued by back dating it in

order to nullify the interim order dated 15-12-2021 passed by this court in

WP(C) No. 919 of 2021 and in order to deprive the petitioners of their right

to promotion. It has further been submitted that the petitioners have already

accrued their right for promotion to the post of Principal of Government

Higher Secondary Schools before they retired from service on attaining the

age of superannuation and that such right cannot be taken away by the

authorities by exercising their power illegally.

[13] Mr. A. Vashum, learned GA appearing for the respondents No. 1

and 2 submitted that the present writ petitions have become infructuous as

the Government had cancelled the proceeding of the DPC meeting held on

25-02-2021 by issuing an order dated 14-12-2021. It has also been [13]

submitted that the cancellation order was issued before this court passed

the interim order dated 15-12-2021 in WP(C) No. 919 of 2021. The learned

GA also submitted that after cancellation of the earlier proceeding of the

DPC held on 25-02-2021, the State Government had conducted a DPC on

18-12-2021 in consultation with the MPSC in pursuance of the Government

letter dated 08-12-2021 for promotion of thirty Vice-Principals to Principals

of Government Higher Secondary Schools and on the recommendation of

the said DPC, twenty nine Vice-Principals have been promoted to the post

of Principals, Government Higher Secondary Schools by issuing an order

dated 28-12-2021.

[14] It has also been submitted by the learned GA that in paragraph

5.11 of the Office Memorandum dated 15-05-2014 issued by the

Department of Personnel & Administrative Reforms, Government of

Manipur, it is clearly laid down that promotion will have only prospective

effect even in cases where vacancies relates to earlier years and that as

the petitioners have retired from service w.e.f. 28-02-2021 on attaining the

age of superannuation, their case for promotion to the post of Principal,

Higher Secondary Schools, cannot be considered at this point of time and

accordingly, the present writ petitions are liable to be dismissed as no relief

can be granted to the petitioners. The learned GA cited the judgment of the

Hon'ble Apex Court in the case of "Sk. Abdul Rashid & ors. Vs. State of

Jammu & Kashmir & ors." reported in (2008) 1 SCC 722 wherein the

Hon'ble Apex Court held as under:-

[14]

"16. In the State of Bihar V. Akhouri Sachindra Nath, this Court held:

"12. ... it is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service."

[15] Mr. R.S. Reisang, learned senior counsel appearing for the

MPSC submitted that the DPC meeting held on 25-02-2021 was held

without participation of the MPSC as it remained non-functional due to post

of the Chairman lying vacant. It has been submitted that the proposal letter

dated 26-02-2021 submitted by the Government for obtaining concurrence

of the MPSC in connection with the proceeding of the DPC meeting held on

25-02-2021 was sent by the Government while being fully aware that the

MPSC was non-functional at that time and that the MPSC promptly returned

the said proposal on the next day taking into consideration that the matter

involves urgent and prompt handling. The learned senior counsel further

submitted that the Government again re-submitted the said DPC

proceeding under a letter dated 26-06-2021 to the MPSC for obtaining its

concurrence and that after discussing the matter in detail, the MPSC

decided that the proposal was beyond the scope of the MPSC and the

decision of the MPSC was intimated to the Government under a letter dated

16-07-2021. The learned senior counsel also submitted that on receiving a

requisition letter dated 08-12-2021 from the Government for appointment

to thirty post of Principals of Government Higher Secondary Schools, a

DPC in association with the MPSC was held on 18-12-2021 and [15]

recommended twenty one Vice-Principals for appointment as Principals of

Government Higher Secondary Schools. The learned senior counsel

submitted that the MPSC has no knowledge about the pendency of the

earlier writ petitions, the interim order passed therein or the cancellation

order of the earlier DPC.

[16] I have heard the submissions advanced by the learned counsel

appearing for the parties at length and also carefully examined the materials

available on record. In the present case, the writ petitioners have been

denied promotion to the post of Principal of Government Higher Secondary

Schools even though they have been recommended for such promotion

only on account of the offending rider made by the DPC in paragraph 13 of

the proceeding of its meeting held on 25-02-2021. It is undisputedly on

record that at the time of holding the said DPC meeting on 25-02-2021, the

MPSC remained non-functional. It is also undisputed that in order to

facilitate the Government with regard to appointment by promotion to Class-

I and Class-II post, the State Government issued a Notification dated

01-02-2021 according sanction to the exemption from consultation with the

MPSC in the matter of appointment by promotion in the Offices/

Departments under the Government of Manipur during the period till the

MPSC become functional. In the said notification, the composition of the

Class-I and Class-II DPC was also notified. In view of the said notification,

this court is of the considered view that there was no requirement for

consulting the MPSC or obtaining its concurrence in connection with the

promotion of the Vice-Principal to the post of Principal of Government [16]

Higher Secondary Schools since consultation with and obtaining

concurrence of the MPSC had already been exempted by the State

Government. The offending rider made by the DPC was un-warranted and

absolutely un-necessary, in fact, there was no reason or justification for

making such an offending rider in the proceeding of the said DPC. In the

face of such factual position, this court is of the considered view that the

DPC made the said offending rider whimsically, capriciously, arbitrarily and

without any application of mind thereby depriving the valuable rights of the

petitioners for their promotion to the post of Principal before their retirement

from service. Accordingly, such offending rider cannot withstand the test of

law and the same deserves to be quash and set aside.

[17] With regard to the challenge being made to the proceeding of

the DPC meeting held on 18-12-2021 and the appointment order dated

28-12-2021 appointing twenty nine Vice Principal to the posts of Principal,

this court is of the considered view that there is no point in interfering with

the recommendation made by the said DPC and the appointment order

issued on the basis of such recommendation for the simple reason that the

petitioners have already retired from service on attaining the age of

superannuation w.e.f. 28-02-2021 and they will gain nothing from quashing

the said DPC proceeding and the impugned appointment order. Since the

said DPC meeting was held after retirement of the petitioners to fill up the

resultant vacancies and even if the petitioners are appointed on promotion

to the posts of Principal before the date of their retirement from service, no

purpose will be served by interfering with the said recommendation made [17]

by the DPC and the said appointment order and no prejudice will be caused

to the petitioners by refusing to interfere with the same.

[18] The main controversy in the present case is whether the

petitioners can be given promotion retrospectively before the date of their

retirement from service. The stand of the State Government is that in the

consolidated guidelines for promotion issued by the Department of

Personnel & Administrative Reforms, Government of Manipur under the

Office Memorandum dated 15-05-2014, it is laid down at para 5.11 that

promotion will have only prospective effect even in case where the

vacancies relate to earlier years. Accordingly, the petitioners cannot be

given promotion retrospectively before the date of their retirement from

service.

It will be relevant to mention here that in paragraph 3 of the said

Office Memorandum dated 15-05-2014, it is also laid down that DPC should

be convened on regular annual intervals to draw panels which could be

utilized for making promotion against the vacancies occurring during the

course of a year and that the DPC may be convened every year if necessary

on a fixed date in the month of January or April and that holding of DPC

meetings need not be delayed or postponed on the ground that recruitment

rules for a post are being revised/ amended.

[19] In the present case, there was gross delay on the part of the State

authorities in holding DPC meetings for considering the case of the

petitioners and other eligible candidates for their promotion to the posts of [18]

Principal despite availability of a large number of vacancies and eligible

candidates. Moreover, because of the offending and malicious rider made

by the DPC at paragraph 13 of its proceeding, directing the Administrative

Department to issue appointment orders after obtaining the concurrence of

the MPSC, the petitioners have been deprived of their valuable right for

their promotion to the posts of Principal before their retirement from service,

even though they have been recommended for such promotion. In such a

situation, this court is of the considered view that the petitioners cannot be

made to suffer owing to such arbitrary, unreasonable and malicious act

committed by the DPC and for no fault on their part. It is also undisputed

that if the DPC did not put the offending rider while recommending the case

of the petitioners and other candidates for their promotion to the posts of

Principal, the petitioners could have been given promotion before the date

of their retirement from service.

[20] This court must keep in mind the constitutional obligation of the

State Government and State Government is to act as a model employer,

which is consistent with its role in a Welfare State. It is an accepted legal

position that the right of the eligible employees to be considered for

promotion is virtually a part of their Fundamental Right guaranteed under

Article 16 of the Constitution and the guarantee of a fair consideration in

matters of promotion under Article 16 virtually flows from guarantee of

equality under Article 14 of the Constitution. It has not been disputed by the

respondents that in respect of promotion to the post of Under Secretary,

Manipur Secretariat Service during the same period when the MPSC [19]

remained non-functional, no consultation was made with the MPSC or

obtain its concurrence before issuing the appointment order because of the

exemption sanctioned by the Government from such consultation as

notified under the Notification dated 01-02-2021.

In view of the above, this court find force in the submission made

on behalf of the petitioners that the petitioners have not been treated

equally by the authorities in the matter of their promotion. It is, therefore,

clear that the valuable right of the petitioners for their promotion to the posts

of Principal had been denied or defeated by the unreasonable, arbitrary and

malicious act of the DPC.

This court have also carefully perused the case law cited by the

learned GA and this court is of the considered view that the principle laid

down by the Hon'ble Apex Court in the said case is not applicable in the

present case as the facts are totally different. In the case of "Government

of West Bengal & ors. Vs. Dr. Amal Satpathi" reported in 2023 SCC

online Cal. 489, which is somewhat similar to the present case, a Division

Bench of the Hon'ble High Court of Calcutta concurred with the view taken

by the Tribunal that even if a Government servant could not be granted

benefit of retrospective promotion, he should be given financial benefits of

the promotional post notionally on the date of his retirement and the actual

financial benefits in terms of pension and other retirement benefits.

[21] Taking into consideration the peculiar facts and circumstances of

the present case and keeping in view that the petitioners have been denied [20]

their valuable right to get promotion to the posts of Principal before the date

of their retirement from service by the arbitrary, unreasonable and malicious

act of the DPC, this court is of the considered view that it will be in the

interest of justice to dispose of the present writ petitions with the following

directions:-

(a) The offending rider made by the DPC in paragraph 13 of the

proceeding of its meeting held on 25-02-2021 as well as the

impugned cancellation order dated 14-12-2021, insofar as the

petitioners are concerned, are hereby quashed and set aside;

(b) The respondents No. 1 an 2 are directed to appoint the petitioners

on promotion to the post of Principal notionally w.e.f. any date

between 25-02-2021 and 28-02-2021 and actual financial

benefits in terms of pension and other retirement benefits should

be given to them w.e.f. the date of their promotion; and

(c) The whole process for giving such benefits should be completed

within a period of two months from the date of receipt of a certified

copy of this order.

With the aforesaid directions, the present writ petitions are

disposed of. Parties are to bear their own cost.

.JUDGE

FR / NFR

Devananda