Manipur High Court
Longjam Subhaschandra Singh vs The State Of Manipur Represented By The ... on 24 April, 2024
Author: A. Guneshwar Sharma
Bench: A. Guneshwar Sharma
Digitally signed by
JOHN JOHN TELEN KOM
TELEN KOM Date: 2024.04.24
13:23:14 +05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C)No.255 of 2024
Longjam Subhaschandra Singh, aged about 57 years, S/o (L), L. Mani Singh
of Wangkheimayum Leirak, Imphal East PO & PS Porompat, Imphal East
District Manipur.
......Petitioner
- Versus -
1. The State of Manipur represented by the Chief Secretary (DP),
Government of Manipur, Secretariat, Babupara, PO & PS Imphal, Imphal
West District, Manipur-795001.
2. The Secretary, Skills Labour Employment and Entrepreneurship
Department, Government of Manipur, Secretariat, Babupara, PO & PS
Imphal, Imphal West District, Manipur-795001.
3. Yaiphaba Longjam, MCS, Joint Director of Craftsmen Training and
Deputy Director/ JNIMS Manipur, Porompat, PO & PS Porompat, Imphal
East District, Manipur-795005
.... Respondents
With
MC(WP(C)) No.216 of 2024
With
MC(WP(C)) No.233 of 2024
With
MC(WP(C)) No.239 of 2024
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 1
BEFORE
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
For the Petitioner : Mr. HS Paonam, Sr. Adv.
For the Respondents : Mr. Lenin Hijam, AG & L. Anand, Adv.
Date of Hearing : 17.04.2024.
Date of Order : 24.04.2024
ORDER
(CAV)
[1] Heard Mr. HS Paonam, learned senior counsel assisted by Mr. A.
Arunkumar, learned counsel on behalf of the petitioner, Mr. Lenin Hijam, learned
AG assisted by Ms. Sharmila, learned counsel on behalf of State respondents/
applicants in MC(WP(C)) No.239 of 2024 and Mr. L. Anand, learned counsel along
with Mr. B. Kirankumar on behalf of respondent No.3/applicant in MC(WP(C))
No.233 of 2024.
[2] By the present applications being MC(WP(C)) No.233 of 2024 filed
by private respondent No.3 and MC(WP(C)) No.239 of 2024 filed by the State
respondents in the writ petition being WP(C) No.255 of 2024, the
respondents/applicants are raising the question of maintainability and locus of the
petitioner to file accompany writ petition being WP(C) No.255 of 2024 challenging
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 2
the appointment of respondent No.3 as Joint Director (Training) on deputation in
the Directorate of Craftsman Training, Government of Manipur.
[3] By way of writ petition being WP(C) No.255 of 2024, the petitioner
has challenged the appointment of Private respondent No.3 as Joint Director
(Training), Directorate of Craftsmen Training, Manipur on deputation issued by
Joint Secretary(DP), Government of Manipur vide order dated 13.03.2024. By the
impugned order dated 13.03.2024, respondent No.3 has been appointed as Joint
Director(Training), Directorate of Craftsmen Training, Manipur on deputation for a
period of 3(three) years, or until further orders, in addition to his post as Deputy
Director(JNIMS) at no extra remuneration. Earlier the petitioner has also
challenged the appointment of respondent No.3 as Joint Director(Training)
Directorate of Craftsmen Training, Manipur on in-charge basis by way of writ
petition being WP(C) No.170 of 2024 and vide order dated 07.03.2024, this Court
stayed the impugned order dated 25.02.2024. It is stated that on 07.03.2024, Joint
Secretary (DP) Government of Manipur cancelled the order dated 25.02.2024
conferring in-charge Joint Director (Training), Directorate of Craftsmen Training,
Manipur to the respondent No.3 in compliance of the order dated 07.03.2024
passed by this Court in WP(C) No.170 of 2024 and subsequently, the impugned
order dated 13.03.2024 appointing the respondent No.3 as Joint Director (Training)
in the Directorate of Craftsmen, Manipur on deputation was issued.
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 3
[4] It is the case of the petitioner that he is the senior most Principal, ITI,
Manipur and as per the recruitment rules of Joint Director, (Training), the same is
promotion post from the post of Deputy Director of Training and the Principal, ITI
having three years of regular service in case of degree holders in Engineering in
Mechanical/Electrical/Automobiles Electronic/Computer Engineering and 8(eight)
years for Diploma holders, failing which by deputation from State or Central holding
analogous post and failing which by direct recruitment.
[5] It is submitted that in case of eligible candidates are not available for
promotion as per recruitment rules, the senior most in the feeder cadre has to be
appointed on in-charge basis in terms of the Office Memorandum dated
03.10.2020 issued by DP, Government of Manipur. It is also stated that the present
impugned order dated 13.03.2024 has been issued in order to frustrate the ad-
interim stay order dated 07.03.2023 passed by this Court in WP(C) No.170 of 2024
whereby the appointment of the private respondent No.3 as in-charge Joint
Director (Training) was suspended. It is prayed that the impugned order be set
aside. The State respondents have filed MC(WP(C)) No.239 of 2024 and private
respondent has also filed MC(WP(C)) No.233 of 2024 raising the maintainability of
the writ petition at the instance of the petitioner herein, mainly on the ground that
the petitioner is not eligible for promotion to the post of Joint Director. It is pointed
out that as per para 5 of the writ petition, the petitioner will be eligible for promotion
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 4
to the post of Joint Director(Training) in the Directorate of Craftsmen Training in
the year 2026 and also the Office Memorandum dated 03.10.2020 issued by the
State Government of Manipur for appointment on in-charge basis will not be
applicable, as the State Government has resorted to the metod of appointment on
deputation as provided in the recruitment rules for Joint Director. In the Directorate
of Craftsmen Training Manipur(Joint Director of Training) Rules,1999, it is stated
in column 10 of the MPS Form No.8 that the appointment to Joint Director will be
by promotion failing which by deputation, failing both by direct recruitment.
[6] The private respondent No.3 has also raised the same objection on
maintainability of the writ petition as the petitioner is not eligible for promotion and
he is not an aggrieved person so as to entitle to challenge the appointment of the
private respondent No.3. It is also stated that the petitioner has wrongly averred in
para 11 of the writ petition that respondent No.3 is not having engineering degree.
It is stated that respondent No.3 is B.Tech in Electronic and Communication
Engineering from Pondicherry University and hence, the averment of the petitioner
regarding non-possession of Bachelor degree in engineering is wrong and
misleading. It is stated that for concealing and misleading, the writ petition ought
to be dismissed on this point alone.
[7] Mr. Lenin Hijam, learned AG has raised the question of
maintainability of the writ petition and submits that this Court ought to decide this
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 5
question first before considering on merit of the case including the prayer for
interim relief. Learned AG relies upon the decision of Hon'ble Supreme Court in
the case reported as (i) S. Narahari Vs. S.R. Kumar reported in (2023) 7 SCC
740 at para 22 & 23, (ii) (2000) 10 SCC 253 and (iii) Union of India Vs. Ranbir
Singh Rathaur reported in (2006) 11 SCC 696 at para 42, wherein it was held that
the issue of maintainability of the petition has to be decided first before going into
the merit of the case. It is, therefore, prayed that before going into the merit of the
case, the question on the maintainability raised by the respondents has to be
considered and decided and only when the same is rejected, the matter can be
considered on merit.
[8] Mr. Lenin Hijam, learned AG draws the attention of this Court to the
recruitment rules for the post of Joint Director (Training), Craft that the appointment
of Joint Director is by promotion, failing which by deputation, and failing which by
direct recruitment. The eligibility criteria for promotion is 3(three) years of regular
service in case of degree holders and 8(eight) years in case of diploma holders in
the engineering trades as enumerated in the rules.
[9] Learned AG has pointed out that admittedly, the petitioner who is a
diploma holder, is not yet qualified for appointment to the post of Joint Director and
he will be eligible in the year 2026. In the circumstances, the State Government
has resorted to the deputation clause as stipulated by the recruitment rules. It is
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 6
further highlighted that since the petitioner is not eligible for appointment to the
post of Joint Director, Training, he being not aggrieved persons, has no locus to
challenge the appointment of respondent No.3 as Joint Director(Training) on
deputation as prescribed by the rules.
[10] Mr. Lenin Hijam, learned GA referred to (2006) 11 SCC 731 holding
that writ of certiorari challenging the appointment of a person to a post will be
maintainable at the behest of eligible persons only. In the present case, the
petitioner is admittedly not eligible for promotion to the post of Joint
Director(Training) and as such he has no locus to challenge the appointment of
respondent No.3 as Joint director(Training) on deputation as per rules.
[11] Learned AG hasfurther relied upon the judgement & order of Union
of India Vs. Arulmozhi Iniarasu reported as (2011) 7 SCC 397 at para 26 to the
effect that writ of mandamus is maintainable only when there is legal right in favour
of the writ petitioner and the corresponding legal obligation on the State.
[12] Mr. Lenin Hijam, learned AG has referred to a decision of Division
Court of this Cour vide judgement and order dated 30.10.2023 in WP(C)No.917 of
2017 etc. etc. titled Shahid Mohammad Shah Vs. State of Manipur & others
whereby in para 26 where it was held referring to the case of Umakant Saran Vs.
State of Bihar:(1973) 1 SCC 485 that a person who is not eligible for consideration
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 7
of appointment at the relevant point of time has no right to question the
appointments made under the rule, since he was not an aggrieved person and
accordingly, the writ petition was dismissed as not maintainable. It is pointed out
that the judgment of the Division Bench by authored by me (Justice A. Guneshwar
Sharma). It is stated that the decision of the Division Bench on the same point is
binding on Single Bench of this Court. Regarding this point, learned Advocate
General cites the decision of a constitution bench of the Hon'ble Supreme Court in
the case of Chandra Prakash Vs. State of UP:(2002)4 SCC 234 at para 22 that
the doctrine of binding is utmost importance in the administration of justice and
pronouncement by a division bench is binding on a division bench of the same or
similar number of Judges. Finally, it is also pointed that Office Memorandum dated
03.10.2020 for appointment on in-charge basis will not applicable in the present
case, as per para 4(i) of the OM stipulates that resort to appointment on in-charge
basis will be made only when eligible persons as per recruitment rules are not
available. It is clarified that in the present case, the methods of appointment as per
RR is not exhausted and deputation is one of the method provided in the RR and
hence, the OM dated 03.10.2020 as referred by the petitioner will not be applicable
in the present case. It is prayed that the writ petition be dismissed as not
maintainable, as the petitioner has no locus to challenge the appointment of
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 8
respondent No.3 as Joint Director(Training) Directorate of Craftsmen Training,
Manipur on deputation.
[13] Mr. L. Anand, learned counsel appearing for respondent No.3 has
adopted the submissions of learned Advocate General. It is further reiterated that
the petitioner is not an aggrieved party, as he is not eligible for promotion to the
post of Joint Director and in the circumstances, he cannot file the present writ
petition challenging the appointment of respondent No.3. Learned counsel for
respondent No.3 has referred to a decision of Hon'ble Supreme Court in the case
reported as AIR 1976 SC 578 at para 12 & 47 which stipulates that only aggrieved
person has a locus to file a writ in the nature of certiorari. Since the petitioner has
not suffered any legal wrong, he is not an aggrieved person. It is pointed out that
in the present case, the petitioner will be eligible for promotion in the year 2026
only and as such he is not an aggrieved persons in the appointment of respondent
No.3 as Joint Director(Training) on deputation as per rules.
[14] Learned counsel for respondent No.3 has also relied upon a decision
reported in (1973) 1 SCC 485 at para 15 that ineligible person has no locus to
challenge the appointment. Reference is also made to a decision of the Hon'ble
Supreme Court vide judgement dated 29.01.2020 in Civil Appeal No.802 of 2020
title Shripal Bhati Vs. State of UP: (2020) 12 SCC 87 @ Para 26 wherein it is
stated that the challenge to the appointment and absorption of the respondent was
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 9
dismissed as the petitioners were not eligible for promotion at the relevant time
and hence they had no locus to challenge the appointment. It is also stated that
the petitioner herein cannot ask for in-charge appointment as a right, when
recruitment rules provide for appointment by deputation and direct recruitment
when none is available for promotion. In the present case, none is available for
consideration for promotion and as such resort to appointment by deputation is
rightly made by the State respondents. It is prayed that writ petition may be
dismissed on the ground of maintainability.
[15] Mr. H. S. Paonam, learned senior counsel for the petitioner submits
that the impugned order is nothing but a devise to frustrate the interim order dated
07.03.2024 passed by this Court in the pending WP(C) No.170 of 2024 whereby
the petitioner herein has challenged the appointment of respondent No.3 as Joint
Director(Training) Directorate of Craftsmen Training, Manipur on in-charge basis.
It is stated that with ulterior motive, the earlier in-charge appointment of the
respondent No.3 to the post of Joint Director(Training) was cancelled on
07.03.2024 on the same day that this Court stayed the earlier impugned order
dated 25.02.2024. Thereafter, the State respondents issued the present impugned
order dated 13.03.2024 appointing the respondent No.3 herein again as Joint
Director (Training) on deputation basis in addition to his normal duties without any
extra remuneration.
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 10
[16] Learned senior counsel for the petitioner draws the attention of this
Court to the word "in addition to his existing post as Deputy Director (JNIMS) at no
extra remuneration" in the order dated 13.03.2024 and has submitted that this
shows that the second impugned order is also an appointment order on in-charge
basis. He has referred to an Office Memorandum dated 16.08.2021 issued by
Department of Personnel Government of Manipur regarding the Deputation. It is
stated that deputation will be outside the normal field of deployment and the
borrowing authority shall pay leave salary and the pensionary contribution/NPS as
determined by the Accountant General of Manipur. It is pointed out that if a person
is appointed on deputation, the salary has to be paid by the borrowing authority.
[17] Mr. H. S. Paonam, learned senior counsel has clarified that in the
impugned order dated 13.03.2024, it is stated that respondent No.3 who is on
deputation as Deputy Director(JNIMS) is again appointed as Joint
Director(Training) Directorate of Craftsmen on deputation in addition to his normal
duties at no extra remuneration. This means that respondent No.3 will not be
drawing any salary from the Directorate of Craftsmen Training Manipur and he will
be drawing salary from JNIMS where he is presently working as Deputy Director
(JNIMS) on deputation.
[18] It is also referred to another Office Memorandum dated 17.06.2010
issued by DOPT, Government of India that there shall be 'cooling off' period of
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 11
3(three) years after deputation and also para 8.4 of Appendix 5 of FR & SR
stipulating similarly that there should be a cooling period of 3(three) after a
completion of every deputation. It is submitted that in the present case, there is no
cooling period as required. It is pointed out that for deputation no advertisement
has been issued as done for other department and the respondent No.3 is hand-
picked by the respondents without following the norms.
[19] Learned senior counsel for the petitioner draws the attention of this
Court to the recruitment rules for Joint Director wherein it has been prescribed that
deputation is from officers of the Central Government or State Government holding
analogous post.
[20] As per recruitment rules, the qualification as per column 7 of the RR
is degree or diploma in Mechanical/Electrical/Automobiles Electronic/Computer
Engineering from recognized institute. Respondent No.3 herein is holding a cadre
post of MCS Grade-II. It is submitted that MCS Grade-II is not a cadre post for the
Joint Director(Training) Craftsmen and they are not analogous. The essential
qualification for MCS Grade-II is degree in any field, whereas for the post of Joint
Director, it is degree/diploma in engineering as specified by rules as mentioned
above. Respondent No.3 having B.Tech in Electronic and Communication
Engineering, cannot be termed as a person holding analogous post.
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 12
[21] It is submitted that the respondent No.3 holding a post not analogous
with the post of Joint Director, is not eligible for appointment on deputation. It is
further stated that the grade pay of Joint Director (Training) is Rs.6600/- whereas
that of MCS Grade-II officer is Rs.5400/-. It is submitted that respondent No.3 who
is holding an inferior post, cannot be considered for appointment on deputation to
the post of Joint Director (Training), Directorate of Craftsmen, Manipur.
[22] On behalf of the petitioner, reliance is placed on the decision of
Hon'ble Supreme Court in the cases of (i) State of Punjab Vs. Inder Singh: (1997)
8 SCC 372 where it is held that: "Concept of "deputation" is well understood in
service law and has a recognized meaning. ".Deputation" has a different
connotation in service law. The dictionary meaning of the word "deputation" is of
no help. In simple words, "deputation" means service outside the cadre or outside
the parent department. Deputation is deputing or transferring an employee to a
post outside his cadre, that is to say, to another department on a temporary basis.
After the expiry period of deputation, the employee has to come back to his parent
department to occupy the same position unless in the meanwhile he has earned
promotion in his parent department as per the recruitment rules. Whether the
transfer is outside the normal field of deployment or not is decided by the authority
which controls the service or post from which the employee is transferred. There
can be no deputation without the consent of the person so deputed and he would,
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 13
therefore, know his rights and privileges in the deputation post..."(para 18)" (ii)
Indu Shekhar Singh VS. State of UP: (2006) 8 SCC 129 it is held that
"..Difference between 'Transfer' and 'Deputation' where deputation from
organization constituted under statue to another organization constituted under
different statute, the plea of deputationist that should be regarded as appointment
of transfer cannot be accepted.." (para 21 & 39), (iii) Ashok Kumar Ratilal Patel
Vs. Union of India: (2012)7 SCC 757 it is held that "Difference between
appointment on deputation and appointment of transfer.."(para 13-17) (iv) Union
of India Vs R. Thiyagarajan: (2020) 5 SCC 201 it is held that "..Determination as
regards to the appointment as in the nature of deputation or otherwise.."(para 15&
16) (v) Union of India Vs. Raj Grow Inpex LLp: AIR 2021 SC 2993 it is held that
"..Proprietaries of seeking leave of the Court for issuing any new order on an issue
which has already seized by the Court.."(para 54.1) (vi) Kusheshwar Prasad
Singh Vs. State of Bihar: (2007) 11 SCC 447 it is held that "... A wrongdoer
ought not to permitted to make a profit out of his own wrong..."(Para 16) (vii) Zenith
Mataplast Pvt. Ltd. Vs. State of Maharashtra: (2009)10 SCC 388 " when an
interim order required to be passed' at para No.29 & 30) and (viii) Deoraj Vs. State
of Maharastra: (2004) 4 SCC 697 "...discretion for passing interim order.."(para
12).
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 14
[23] Learned senior counsel also relied upon the decision of Hon'ble
Supreme Court in V.N. Meenakshi Vs. Union of India: 1998 Legal Eagle (SC)
790 it is held that
"Respondent No. 5 was holding a substantive post in the office of the
Comptroller and Auditor General of India as Junior Accounts Officer. He
was brought on deputation to the Border Security Force. He was absorbed
in the organization of Border Security Force as Joint Assistant Director.
Appellant is an employee under the Border Security Force. The
absorption of respondent No. 5 in the post of Joint Assistant Director was
challenged by the appellant before the Central Administrative Tribunal,
inter alia, on the ground that according to the Rules in force, respondent
No. 5 could not have been so absorbed. The Tribunal, by the impugned
judgment and order, came to hold that the post which respondent No.5
was holding in parent organization is an analogous post to the post of
Joint Assistant Director and therefore, there was no illegality in the
absorption of said respondent No. 5 as Joint Assistant Director. From the
relevant Rules in force, at the point of time, it is clear that unless the two
posts are analogous posts, it is not possible for absorption of officer from
another organization. Looking at the duties of the two different posts in
question, the scale of pay which the post carries as well as the category
to which the two posts belong, it is difficult for us to sustain the conclusion
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 15
of the Tribunal that respondent No. 5 was holding as analogous post in
the parent organization. The Tribunal having committed error in holding
that respondent no. 5 was holding an analogous post in the parent
organization, the ultimate decision gets vitiated. Having examined the
relevant criteria of the two posts in question with which we are concerned,
we are of the considered opinion that respondent No. 5 on the date of his
absorption as Joint Assistant Director in the Border Security Force was
not holding an analogous post under the Comptroller and Auditor General
of India and therefore, he was not entitled to be absorbed permanently in
the Border Security Force. The said absorption, therefore, is vitiated and
must be set aside. We accordingly set aside the order of absorption of
respondent No. 5 as Joint Assistant Director under Border Security Force.
The impugned order of the Tribunal is accordingly quashed. Since the
appellant claimed to be otherwise entitled for promotion to the post of Joint
Assistant Director but in the meantime has retired on superannuation his
case may be considered for promotion to the post of Joint Assistant
Director in accordance with law and if ultimately she is promoted to the
post of Joint Assistant Director then he would be entitled to the
consequential enhancement in retiral benefits but will not be entitled to
any arrear of salary on that score. Appeal is accordingly allowed but there
will be no order as to costs.
Appeal allowed."
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 16
[24] This Court has perused the materials on record, the case laws
referred herein and considered the oral submissions made by the parties in details.
[25] The point to be decided herein is regarding the maintainability of the
writ petition filed by the petitioner challenging the appointment of the respondent
No.3 as Joint Director (Training), Directorate of Craftsmen, Manipur on deputation.
The plea raised by the respondents is lack of locus on the part of the petitioner,
since he is not eligible for promotion to the said post and deputation is one of the
methods provided by the rules.
[26] Admittedly, the petitioner is not eligible at the moment for promotion
to the post of Joint Director (Training), Directorate of Craftsmen, Manipur, since he
is yet to acquire 8 years of regular service in the feeder cadre of Deputy Director
and Principal ITI. Earlier, on 25.02.2024 the respondent No.3 was appointed as
Joint Director (Training), Directorate of Craftsmen, Manipur on in-charge basis and
same was challenged by the petitioner herein by way of writ petition being WP(C)
No. 170 of 2024 and vide order dated 07.03.2024 this Court stayed that order. On
the same day, ie, on 07.03.2024, the earlier order dated 25.02.2024 was cancelled
purportedly in compliance of the order dated 07.03.2024. Subsequently, the
present impugned order dated 13.04.2024 was issued in favour of the respondent
No.3 appointing him as Joint Director (Training), Directorate of Craftsmen, Manipur
on deputation in addition to his duty as Deputy Director (JNIMS) on deputation at
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 17
no extra remuneration. It is the case of the respondents that as none is eligible for
promotion, resort has been made to appointment by deputation as prescribed by
rules and the petitioner who is ineligible for promotion, has no locus to challenge
the appointment of the respondent No.3 on deputation. In view of the case laws
cited above, it has been urged to dismiss the writ petition summarily on the
question of lack of locus at threshold. The petitioner is alleging that the second
impugned order is also an appointment on in-charge basis in disguise and he has
locus.
[27] This Court thinks it appropriate to first examine as to whether the
nature of impugned order is an appointment by deputation or actually on in-charge
basis.
[28] It is settled proposition of law that deputation connotes a posting
outside the cadre posts of the service. It may be within the same State and/or to
other States and Centre. It will be fruitful to refer to the OM dated 16.08.2021
issued by the Govt. of Manipur with regard to deputation. It states that 'deputation'
is posting by way of transfer outside normal field of deployment and the borrowing
authority shall pay leave, salary and pension and pension contributions/NPS.
[29] The test whether an appointment is on deputation or not, is to
examine the substance of such appointment and not by the name or terminology
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 18
alone used in the order. It will be relevant to refer to the following decisions of the
Hon'ble Apex Court.
[30] In the case of State of Kerala v. James Varghese: (2022) 9 SCC
593, Hon'ble Supreme Court discussed the importance of the substance of the
enactment while considering its validity and not the name alone. It is held as below:
72. It could thus be seen that the Constitution Bench has held in
Kesoram Industries case8 that when the legislative competence of a
State Legislature is questioned on the ground that it encroaches upon
the legislative competence of Parliament, since some entries are bound
to be overlapping, in such a situation, the doctrine of pith and substance
has to be applied to determine as to which entry does a given piece of
legislation relate to. Once it is so determined, any incidental trenching
on the field reserved to the other legislature is of no consequence. The
court has to look at the substance of the matter. The true character of
the legislation has to be ascertained. Regard must be had to the
enactment as a whole, to its main objects and to the scope and effect
of its provisions. It has been held that incidental and superficial
encroachments are to be disregarded. It has been held that the
predominance of the Union List would not prevent the State Legislature
from dealing with any matter within List II, though it may incidentally
affect any item in List I.
8. State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201
[31] In the case of Municipal Council, Kota v. Delhi Cloth & General
Mills Co. Ltd.: (2001) 3 SCC 654, Hon'ble Apex Court has emphasised the
importance of substance of the enactment and not the term used while considering
the vires of a taxation statute. It is held as below :
18. We affirm the statement of law thus made above to be correct and
in our view it is not the nomenclature used or chosen to christen the levy
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 19
that is really relevant or determinative of the real character or the nature
of the levy, for the purpose of adjudging a challenge to the competency
or the power and authority to legislate or impose a levy. What really has
to be seen is the pith and substance or the real nature and character of
the levy which has to be adjudged, with reference to the charge, viz.,
the taxable event and the incidence of the levy. We are convinced on
the indisputable facts on record that the levy sought to be imposed and
recovered as "Dharmada" being only on the goods brought within the
municipal limits of Kota for consumption, use or sale therein the same
in truth, reality and substance is only an "octroi" for the purpose of
carrying out the several public charitable objects statutorily enjoined
upon the Municipal Board and enumerated in Sections 98 and 99 and
those undertaken pursuant to the stipulations contained in Sections 101
and 102 of the Act. The mere fact that it is called by a different name
(all the more so when the word "octroi" itself is not found used in Entry
52 List II of the Seventh Schedule) for historical reason and
administrative needs or exigencies by the draftsmen of the notification
does not in any manner either undermine the nature and character of
the levy or render it any the less a levy envisaged under Entry 52 List II
of the Seventh Schedule. The various charitable objects and
ameliorative schemes and projects for which the taxes realised under
the classified head of Dharmada are claimed to be spent cannot as the
provisions of the Act stand enacted be said to be either unauthorised or
without the sanction of law. That, apart, the irregularity or illegality, if any
involved in spending the sum after collection cannot have any impact
on or adversely affect, the otherwise competency of the authority
concerned to impose a levy, well within its legislative competence and
further not shown to be violative of any provisions of the Constitution of
India. Neither the High Court has gone into any such question of
illegality in the matter of spending the tax realised nor are there any
materials on record placed before us to substantiate any such claim by
the respondent Companies in this regard.
[32] From the above case laws, it is clear that what is important for
consideration is the nature and substance of the matter and not the nomenclature
alone. For example, a partnership firm may be given name of M/s ABC Co. Ltd and
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 20
this alone will not ipso facto become a company, unless it has every character of
being a private limited company under the relevant statute.
[33] From a bare perusal of OM dated 16.08.2021 as noted in para 28
above, deputation means posting outside cadre posts and the person on
deputation shall draw salary from the borrowing department. In the present case,
the petitioner will draw salary from JNIMS where he is still under deputation. The
words "in addition to his existing post as Deputy Director (JNIMS) at no extra
remuneration" in the impugned order dated 13.03.2024 are very important and
these will indicate the true character of the nature of assignment given to the
respondent No.3. These words 'in addition to existing post at no extra
renumeration' would indicate that the impugned order is nothing but an in-charge
appointment of the respondent No.3 to the post of Joint Director (Training) and
mere mentioned of the word 'deputation' alone will not make it a deputation. The
essence of deputation as per OM dated 16.08.2021 is lacking. Accordingly, it is
held that the second impugned order dated 13.04.2024 is nothing but an
appointment on in-charge basis.
[34] Since the impugned order dated 13.04.024 of the respondent No.3
is in fact an appointment on in-charge basis, the petitioner who is the allegedly
seniormost Principal ITI (a feeder cadre for Joint Director), has a right to be
considered for appointment on in-charge basis in terms of the Office Memorandum
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 21
dated 03.10.2020 issued by Govt. of Manipur for regulating in-charge appointment.
In such circumstances, the petitioner cannot be treated to be a person without any
locus. The ratio of the cases cited by the respondents will not be applicable to the
facts of the present case. In those cases, the appointments were made on regular
basis and the ineligible petitioners were held without any locus.
[35] Accordingly, it is held that the impugned order is basically an
appointment on in-charge basis painted as deputation and hence, the petitioner
has locus in terms of OM dated 03.10.2020. The applications being MC(WP(C))
Nos. 233 of 2024 & 239 of 2024 are rejected and disposed of. No cost.
[36] List WP(C) No. 255 of 2024 and MC(WP(C)) No. 216 of 2024 on
26.04.2024 for further proceedings.
JUDGE
FR/NFR
John Kom
MC(WP(C)) Nos. 233 of 2024 & 239 of 2024 Page 22
