Ningthoujam Ibemcha Devi vs The State Of Manipur Represented ...
2023 Latest Caselaw 232 Mani

LAIREN Digitally
       signed by
MAYUM LAIRENMAYU
       M INDRAJEET
INDRAJ SINGH
       Date:
EET    2023.09.13
       11:43:57
SINGH +05'30'
                        IN THE HIGH COURT OF MANIPUR
                                                 AT IMPHAL


                                          W.A. No. 64 of 2023
                                                 With
                                        MC(WA) No. 118 of 2023



                        Ningthoujam Ibemcha Devi, aged about 50 years, W/o Hijam Apabi
                        Singh, resident of Khoyathong Polem Leikai, P.O. & P.S. Imphal,
                        Imphal West District, Manipur, Pin No. 795001.

                                                                    ... Appellant/Applicant


                                                     - Versus -


                     1. The State of Manipur represented by its Commissioner (Hr. & Tech.
                        Edn.), Government of Manipur having its Officer at Secretariat
                        Building, Babupara, New Secretariat, P.O. & P.S. Imphal, Imphal West
                        District, Manipur Pin 795001.
                     2. The Director (Hr. & Tech. Edn.), Government of Manipur, Nityaipat
                        Chuthek, Babupara, P.O. & P.S. Imphal, Imphal West District,
                        Manipur, Pin 795001.
                     3. The Secretary, Manipur Public Service Commission, North AOC, D.M.
                        Road, P.O. & P.S. Imphal, Imphal West District, Manipur, Pin 795001.
                     4. The Principal Accountant General (A&E), Babupara, P.O. & P.S.
                        Imphal, Imphal West District, Manipur, Pin 795001.


                                                                             ... Respondents




                W.A. No. 64 of 2023 with MC(W.A.) No. 118 of 2023

                                                                                       Page 1
                                    BEFORE

HON'BLE THE ACTING CHIEF JUSTICE MR. MV MURALIDARAN
     HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA

 For the appellant/applicant          :      Mr. N. Ibotombi, Sr. Advocate.
 For the respondents                  :      Mr. Kh. Athouba, G.A.; and
                                             Ms. O. Momota, Advocate for
                                             respondent No. 3.
 Date of Hearing                      :      31.08.2023
 Date of Judgment & Order             :      13.09.2023.




                      JUDGMENT AND ORDER (CAV)

A. Guneshwar Sharma, J.

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

Shahidur Rahman, learned counsel for the appellant/applicant; Mr. Kh.

Athouba, learned G.A.; and Ms. O. Momota, learned counsel for respondent

No. 3.

[2] MC(WA) No. 118 of 2023 is filed by the applicant/appellant

herein for dispensing filing of the certified copy of the impugned order dated

28.08.2023 in W.P. (C) No. 603 of 2023. It is stated that the applicant have

filed W.P. (C) No. 603 of 2023 and vide impugned order dated 28.08.2023,

the learned Single Judge issued notice to the respondents, returnable on

27.09.2023 and it is recorded in the impugned order that pendency of the

writ petition shall not bar the respondents from considering and disposing

the representation submitted by the petitioner. WA No. 64 of 2023 is filed by

the appellant herein. It is stated that the applicant applied for the certified

copy of the order dated 28.08.2023 but the same is not issued by the Registry

W.A. No. 64 of 2023 with MC(W.A.) No. 118 of 2023 Page 2 and accompanying writ appeal has been filed along with a digitally signed

true copy of the impugned order issued by the Registry. It is prayed that the

appellant be dispensed from filing the certified copy of the impugned order

as there is urgency in the writ appeal. Mr. N. Ibotombi, learned senior

counsel, prays that the application be allowed.

[3] Mr. Kh. Athouba, learned G.A. for the State; and Ms. O.

Momota, learned counsel for the MPSC, have no objections.

Recording this statement and in the interest of justice, the

application is allowed.

[4] Mr. N. Ibotombi, learned senior counsel for the appellant,

submits that she has filed writ petition being W.P. (C) No. 603 of 2023 with

an interim prayer to pass an order not to make finalization of the absorption

of other incumbents or not to apply clause 7 of the impugned notification

dated 07.03.2019 in the case of the petitioner/appellant. It is stated that the

Commissioner (Hr. & Tech. Edn.), Government of Manipur issued an order

dated 07.03.2019 with respect to taking over of 6(six) Aided Colleges

including Biramangol College, Sawombung, wherein the appellant has been

serving as Assistant Professor since 1997 in Geography Department. By the

said order, the Governor of Manipur was pleased to appoint 478 teaching

and 163 non-teaching employees of the erstwhile aforesaid 6 Aided Colleges

into Government Service w.e.f. 22.02.2019 subject to the condition that their

final absorption into respective grades of the concerned Government posts

would be made in accordance with the recommendation of the MPSC

W.A. No. 64 of 2023 with MC(W.A.) No. 118 of 2023 Page 3 pertaining to the suitability of the appointments, service conditions and inter-

se-seniority in the concerned grades. In para 7 of the order dated

07.03.2019, it is stated that they shall remain at their respective place of

posting until further orders. In terms of the order dated 07.03.2019, the

Principal of Biramangol College, Sawombung, submitted the list of Staffs of

Biramangol College, Sawombung, for final absorption to the authority by a

communication dated 27.01.2020 wherein the name of the writ

petitioner/appellant appears at Sl. No. 28. Thereafter, the appellant was

transferred and posted by an order dated 05.07.2021 from Biramangol

College, Sawombung and she challenged the same by filing writ petition

being W.P. (C) No. 572 of 2021 for staying the operation of the transfer order

dated 05.07.2021 invoking clause 7 of the order dated 07.03.2019. During

the pendency of the writ petition being W.P. (C) No. 572 of 2021, the

appellant/petitioner was transferred and posted vide another order dated

09.12.2022. The writ petitioner was transferred and posted at N.G. College,

Lamphelpat. In view of the subsequent development, vide order dated

16.02.2023, the writ petition was dismissed as withdrawn with liberty to file

a fresh one, if so advised. The appellant/writ petitioner learnt from reliable

source that the State Authorities is resorting to clause 7 of the impugned

order dated 07.03.2019 for dropping the name of the petitioner from the list

of Staff of Biramangol College, Sawombung before forwarding to MPSC for

recommendation. Then the appellant/writ petitioner filed another writ

petition being W.P. (C) No. 603 of 2023 inter alia praying for quashing clause

7 of the impugned order dated 07.03.2019 which provides that the

W.A. No. 64 of 2023 with MC(W.A.) No. 118 of 2023 Page 4 incumbent shall remain posted at respective place of posting until further

orders. Vide order dated 28.08.2023, learned Single Judge issued notice to

the writ petition, returnable on 27.09.2023 and observed that pendency of

the writ petition shall not bar the respondents from considering and disposing

of the representation submitted by the petitioner. The appellant submitted a

representation dated 21.08.2023 to the Commissioner (Higher and Tech.

Education), Government of Manipur, requesting to transfer and posting back

her to the original college, Biramangol College, Sawombung so as to avoid

complicacy due to the existence of clause 7 of the order dated 07.03.2019

and the representation is still pending before the authority. Being aggrieved

by the impugned order dated 28.08.2023, the appellant filed the present

appeal amongst on the ground that without any interim order, the case of

the appellant will remain unattended and it may take longer time in getting

her case of final absorption to be considered by the authority. It is prayed to

quash and set aside the aggrieved portion of the impugned order dated

28.08.2023 to the extent that the pendency of the writ petition shall not bar

the respondents from considering and disposing of the representation

submitted by appellant.

Prayer in the writ appeal is reproduced below:

               i)      to admit this Writ Appeal and call for records;
               ii)     to quash and set aside the aggrieved portion of the impugned

order to the extent that the pendency of the Writ Petition shall not bar the respondents from considering and disposing the representation submitted by the appellant.

iii) to grant the interim order to the extent that not to make finalization of absorption of other incumbents or not to apply

W.A. No. 64 of 2023 with MC(W.A.) No. 118 of 2023 Page 5 clause 7 of the impugned order in writ petition in case of the appellant.

iv) to pass any appropriate order & direction which the Hon'ble Court may deem fit & proper to meet ends of justice.

[5] Mr. N. Ibotombi, learned senior counsel for the appellant,

submits that the aggrieved portion of the impugned order be set-aside and

this Court may pass appropriate interim order and the writ appeal may be

disposed of at the motion stage.

[6] Mr. Kh. Athouba, learned GA for the State; and Ms. O. Momota,

learned counsel for the MPSC, submit that the present appeal is not

maintainable as the impugned order dated 28.08.2023 is not an appealable

order as nothing adverse is held against the petitioner. In fact, the impugned

order is in favour of the appellant and the learned Single Judge issued notice

to the respondents and gave liberty to the respondents for disposing the

representation submitted by the petitioner notwithstanding the pendency of

the writ petition. It is prayed that the writ appeal be dismissed as the same

is not maintainable in the present form.

[7] We have heard the learned counsel for the parties. On bare

perusal of the impugned order dated 28.08.2023 passed by the learned

Single Judge in W.P. (C) No. 603 of 2023, this Court does not find anything

against the appellant/petitioner, rather the order is in her favour. Notice was

issued to the respondents, returnable on 27.09.2023 and it was also

observed that pendency of the writ petition would not bar the respondents

from considering and disposing of the representation submitted by the

W.A. No. 64 of 2023 with MC(W.A.) No. 118 of 2023 Page 6 petitioner. In her representation dated 21.08.2023, the petitioner prayed for

reposting in her original college i.e. Biramangol College, Sawombung in

compliance of the clause 7 of the order dated 07.03.2019 which stipulates

that the incumbent shall remain at the respective place of original posting

until further orders. The prayer in the writ petition is for quashing clause 7

of the order dated 07.03.2019 and also for direction to consider and dispose

of the representation dated 21.08.2023 and in the interim it is prayed for

passing an order not to make finalization of absorption of other incumbents

or not to apply clause 7 of the impugned order in case of the petitioner till

the pendency of the writ petition. This Court is of the view that the impugned

order does not reject the prayer for interim order as submitted by Mr. N.

Ibotombi, learned senior counsel for the appellant. Rather liberty was given

to the respondents to dispose of the representation of the appellant which is

one of the prayers in the writ petition. Moreover, this Court is of the view

that the impugned order dated 28.08.2023 is not an appealable order within

the meaning of Section 2(14) of CPC which provides that order means the

formal expression of any decision of a Civil Court which is not a degree. In

the present case, the learned Single Judge did not express any formal

expression of any decision with respect to all the prayers made in the writ

petition. It is an innocuous order of issuing notice to the respondents and

giving liberty to the respondents to dispose of the representation submitted

by the appellant notwithstanding the pendency of the appeal. It is settled

provisions of law that the principles embodied in CPC is also applicable in the

proceedings of writ petition and writ appeal. We are of the view that the writ

W.A. No. 64 of 2023 with MC(W.A.) No. 118 of 2023 Page 7 appeal is not maintainable in the present form as the appellant is not

aggrieved by the impugned order which is in the form of issuing notice to

the respondents and giving liberty to dispose of the representation of the

appellant. One of the prayers, prayer No. 4 in the writ petition is for a

direction to consider and dispose of the representation dated 21.08.2023

submitted by the appellant within a time frame by a speaking order. In any

case, the appellant is not aggrieved by any portion of the impugned order

dated 28.08.2023 passed by the learned Single Judge, nor the prayer for the

interim relief being rejected by the impugned order. We are of the view that

the impugned order dated 28.08.2023 does not fall within the meaning of

order as defined in Section 2(14) of CPC. Hence, reading together Chapters

3 & 4 of the High Court of Manipur Rules 2019, the writ appeal is dismissed

as not maintainable. However, it is clarified that the appellant may agitate

the prayer for interim relief before the learned Single Judge and also other

grounds in the writ appeal. It is clarified that this Court does not express any

opinion on the merit of the case except for considering maintainability of the

writ appeal.

[8] With these observations, writ appeal is disposed of.

[9]            No costs.



               JUDGE                            ACTING CHIEF JUSTICE


FR/NFR
Indrajeet




W.A. No. 64 of 2023 with MC(W.A.) No. 118 of 2023
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