Manipur High Court
Dr. Rk Labakishore vs State Of Manipur Rep. By ... on 3 May, 2024
Author: A. Guneshwar Sharma
Bench: A. Guneshwar Sharma
Digitally signed by
JOHN JOHN TELEN KOM
TELEN KOM Date: 2024.05.03
12:37:25 +05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C)No.236 of 2024
Dr. RK Labakishore, Deputy Director(Diary), Department of Vet & A.H,
Manipur aged about 53 years, S/o Late Rajkumar Meghajit Singh, resident of
Yaiskul Sougaijam Leirak, Lamphelpat Sub-Division, Imphal West, Manipur.
......Petitioner
- Versus -
1. State of Manipur Rep. by Secretary/Commissioner, Veterinary & Animal
Husbandry(Vet.& A.H.), Government of Manipur, Secretariat, Imphal
West, Manipur-795001.
2. The Commissioner/Secretary(Co-operation), Government of Manipur,
Secretariat, Imphal West, Manipur-795001.
3. The Registrar, Co-operative Societies, Government of Manipur,
Lamphelpat Imphal West District, Manipur-795004.
4. The Director, Veterinary & Animal Husbandry (Vet.& A.H.) Services,
Government of Manipur.
5. Chairperson, Board of Administrators, Manipur Milk Producers' Co-
operative Union(MMPCU), Porompat, Imphal East, Manipur-795005.
6. Shri Seram Kenedy Singh, working as Procurement Officer, aged about
57 years, S/o Late Seram Mangi, resident of Singjamei Wangma Kshetri
Lekai, Lane No.6, Imphal East, Manipur-795008.
.... Respondents
With
With
With
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 1
BEFORE
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
For the Petitioner : Mr. D. Julius Riamei, Advocate.
For the Respondents : Mr. M. Devananda, Addl.AG &
Mr.H.S. Paonam, Sr. Advocate.
Date of Hearing : 29.04.2024 & 30.04.2024.
Date of Judgement : 03.05.2024.
JUDGEMENT&ORDER
(CAV)
[1] Heard Mr. D. Julius Riamei, learned counsel assisted by Ms.
Kabamdailiu Pamei, learned counsel on behalf of the petitioner, Mr. M.
Devananda, learned Addl.AG assisted by Ms. Jyotsana Devi, learned counsel
on behalf the State respondents and Mr. H. S Paonam, learned senior counsel
assisted by Mr. S. Dijeshwor, learned counsel on behalf of respondent No.6.
[2] The point of determination involved in the present writ petition is
"While appointing the Managing Director of Manipur Milk Producers' Co-
Operative Union on in-charge basis under Section 74(2) of the Manipur Co-
Operative Societies Act, 1976 read with Clause 23.3 of the Bye Laws, whether
the Office Memorandum dated 03.10.2020 issued by the Department of
Personnel and Administrative Reforms, Government of Manipur stipulating the
norms for appointment on in-charge basis will be applicable or not".
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 2
[3] By the present writ petition under Article 226 of the Constitution of
India, the petitioner has challenged the impugned order dated 13.03.2024
issued by the Joint Secretary (Veterinary and Animal Husbandry), Government
of Manipur nominating respondent No. 6 herein as in-charge Managing Director
as temporary arrangement for Manipur Milk Producers Co-operative Union Ltd.
Porompat, Imphal East (in short, Union), in addition to his normal duties without
extra remuneration under Section 74(2) of Manipur Co-operative Societies Act,
1976. It is prayed that after setting aside the impugned order, the petitioner be
considered for appointment as in-charge Managing Director of the Union.
[4] The prayer is reproduced as follows:
(i) Pass an order or direction by issuing a writ of Certiorari or a writ in
the nature of a writ of Certiorari or any other appropriate writ or order
or direction as this Hon'ble Court may deemed fit and proper in the
facts and circumstances to quash and set aside the order dated
13.03.2024 passed by the Respondent No.1;
(ii) Pass an order or direction to the Respondent No.1 to 4 to consider
appointing the Petitioner as in-charge Managing Director, Manipur
Milk Producers' Co-Operative Union Ltd. Porompat, Imphal East;
and/or
(iii) Pass any other appropriate order/orders that this Hon'ble Court
deems fit and proper in the facts and circumstances of the case.
[5] It is the case of the petitioner that he was appointed as Veterinary
Officer on regular basis vide order dated 08.12.2017 and he was promoted to
the post of Deputy Director (Dairy) vide order dated 27.12.2023. The
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 3
respondent No.6 was also promoted as Procurement Officer (Dairy) Class-II
Officer vide order dated 19.06.2023 in the Department of Veterinary & Animal
Husbandry. It is also stated that respondent No.6 was initially appointed as Milk
Recorder, a non-Gazetted post before his promotion to Procurement Officers.
It is also stated that the Department of Veterinary & Animal Husbandry
Department shall be the Nodal Department for the implementation of IDDP now
renamed as National Program for Dairy Development for the State of Manipur.
[6] Vide order dated 25.03.2023 passed by the Registrar Co-Operative
Society, Manipur in exercise of the power under section 78(1) of the Manipur
Co-Operative Societies Act, 1976 Board of Directors Manipur Milk Producer
Co-Operative Union was removed and vide order dated 06.10.2023 constituted
and appointed members of the Board of Administrators of the Manipur Milk
Producers Co-Operative Union in exercise of its power under section 78(A) of
the Manipur Co-Operative Societies Act, 1976. It is mentioned that Petitioner is
one of the five members of the Board of Administrators.
[7] Vide judgment and order dated 13.03.2024 issued by Joint
Secretary (Veterinary & Animal Husbandry) Government of Manipur, the
respondent No.6 was nominated to be the in-charge Managing Director on
temporary arrangement. The petitioner submitted a representation dated
27.03.2024 to the Director, Veterinary & Animal Husbandry for consideration
and review of the impugned order dated 13.03.2024 nominating the respondent
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 4
No.6 as in-charge Managing Director of the Union as the petitioner is more
competent than respondent No.6 and he is holding a higher post than
respondent No.6. It is stated that Deputy Director (Dairy), Central Dairy Plant,
Porompat is two ranks higher than the Procurement Officer (Dairy) and as such
nomination of respondent No.6 as in-charge Managing Director is in violation
of the Office Memorandum dated 03.10.2020 issued by the Government of
Manipur laying down the norms for appointment on in-charge basis. It is noted
that as per para 4 (i) & (ii) of the O.M., resort to an in-charge appointment has
to be made when eligible candidates as per rules are not available and the
senior most in the feeder cadre is to be preferred for such appointment. It is
stated that the in-charge appointment of respondent No.6 as Managing Director
of the Union is in clear violation of the O.M. dated 03.10.2020 and as such, the
impugned order dated 13.03.2024 nominating respondent No.6 as in-charge
Managing Director of the Union is liable to be set aside.
[8] Vide order dated 03.04.2024, this Court issued notice and stayed
the impugned order dated 13.10.2024 as the same was purportedly in complete
violation of the O.M. dated 03.10.2020 where an incumbent two grades below
the petitioner was preferred for in-charge appointment as Managing Director.
[9] Both the State respondents and the respondent No.6 have filed
applications being MC(WP(C))No.245 of 2024 and MC(WP(C))No.215 of 2024
for vacating/modifying the ex-parte the interim order dated 03.04.2024.
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 5
[10] It is stated that Manipur Milk Producers' Co-Operative Union Ltd is
a registered Co-Operative Society. The Union has its own Bye-Laws for
administration and effective functional of the Union. It is stated that the post of
Managing Director of Union is not a promotional post and the appointment has
to be done under the said Bye-Laws of the Union as well as in terms of the
relevant provision of the Manipur Co-operative Societies Act, 1976. Clause 23.3
of the Bye-Laws (as amended) provides for appointment of the post of
Managing Director to be made by the Board Directors on recommendation of
the Committee formed for the purpose having qualification of good degree in
Dairy Technology or Diploma in Dairy Technology with ten years experiences,
preferably with a post graduate qualification in business management and must
have at least ten years managerial experience, out of which three years as
overall in-charge of procurement/production/marketing in a large
Dairy/Food/Consumer product unit. Section 74(2) of the Manipur Co-Operative
Societies Act, 1976 provides that the State Government may nominate a
Government servant not below the rank of Class-II officer to work as Managing
Director/General Manager/Manager, as the case may be, of a Co-Operative
Institution.
[11] It is stated that respondent No.6 having a Degree in Dairy
Technology was initially appointed as Milk Recorder vide order dated
31.12.1991 and promoted to the post of Dairy Supervisor. He got the Higher
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 6
Diploma in Co-Operative Management and also attended relevant General
Business Management Program conducted by the institute of Rural
Management Anand (IRMA) under the sponsorship of National Dairy
Development Board (NDDB). He has experience of working in the capacity as
Distribution Officer (Dairy) in Central Dairy Plant since May, 2006 as he was
allowed to look after the work of Distribution Officer vide order dated 29.05.2006
issued by the Deputy Secretary (Vety.), Government of Manipur. Apart from
this, he was utilized and assigned to the duties of Manager (General
Administration). Thereafter, the respondent No.6 was promoted to the post of
Procurement Officer (Dairy), a Class-II post vide order dated 19.06.2023 and
posted to the office of the Deputy Director (Dairy), but his service was utilized
in the office of the Manipur Milk Producers' Co-Operative Union Ltd. vide order
dated 10.08.2023.
[12] It is also stated that O.M. dated 03.10.2020 relied by the petitioner
is applicable only to the Government employees under the circumstances
enumerated therein and not to the members of the Societies/Union where the
appointment of its officer bearers has to be made under the Bye-Laws and the
Act of 1976. It is stated that there is no question of superseding higher
incumbent. It is also stated that the recommendation of the State Government
vide impugned order dated 13.03.2024 nominating respondent No.6 as in-
charge Managing Director of the Union was accepted in a meeting of the Board
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 7
of Administrators held on 26.03.2024 vide resolution No.2. It is pointed out that
the petitioner is one of the members of the Board of Administrators which
accepted the recommendation of the State Government and as such he cannot
question the appointment of respondent No.6 as in-charge Managing Director
of the Union. The resolution of the Board of Administrators dated 26.03.2024
has been approved by the Registrar Co-Operative Society Manipur vide order
dated 01.04.2024. It is also highlighted that the petitioner has not challenged
the proceeding of the resolution No.2 of the Board of Administration held on
26.03.2024 and the approval of the Registrar Co-Operative Manipur dated
01.04.2024. It is submitted that the writ petition can be dismissed on this point
alone.
[13] During the course of hearing, the learned counsels for the
respondents submitted that the applications being MC(WP(C))No.215 of 2024
and MC(WP(C))No.245 of 2024 may be treated as counter affidavits of the
respondents to the writ petition filed by the petitioner and the writ petition may
be disposed of at this stage, as only a short question of law regarding
applicability of the Office Memorandum dated 03.10.2020 is involved. In the
circumstances, this court heard the present petition on the question of merit.
[14] Mr. D. Julius Riamei, learned counsel for the petitioner submits that
the Office Memorandum dated 03.10.2020 is issued for regulating appointment
on in-charge basis to various posts under the Government of Manipur and the
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 8
agency, society, bodies etc. under the control of the Government of Manipur.
Para 4 of the O.M.is very relevant and 4(i) stipulates that appointment on in-
charge basis has to be made only when eligible persons, as per recruitment
rules are not available and para 4(ii) provides that in absence of eligible officials,
the senior most person amongst the feeder cadre has to be appointed to hold
the said post on in-charge basis at no extra remuneration and in addition to
his/her substantive post held to the lower post.
[15] Mr. D. Julius Riamei, learned counsel for the petitioner further
draws the attention of this Court to the contents of para 5 of the O.M. dated
03.10.2020 that for appointments on in-charge basis to all posts shall be
applicable to all posts of the State Government, Agencies, Societies, Bodies,
Offices, Companies, PSUs, Autonomous Bodies etc. Learned counsel further
submits that while making in-charge appointment in absence of eligible officials,
the senior most officers in the feeder cadre has to be preferred. It is also
submitted that in absence of any rules prescribing in-charge appointment in the
Bye-Laws or in the statue, the O.M dated 03.10.2020 shall be applicable in
appointment to any post on in-charge basis of any Society under active control
of the Government.
[16] Learned counsel for the petitioner relied upon the decision of this
Court reported as 2015 SCC online Mani 55 : Maimom Lukhoi v. State of
Manipur wherein it was held that the State Government must act fairly and
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 9
reasonably while making transfer, posting and appointment on in-charge basis
in absence of any statutory rules.
[17] It is stated that in the present case, the Manipur Milk Producers'
Co-operative Union being a society under the control by the State Government
as mentioned in para 5, the O.M. dated 03.10.2020 will be applicable while
making in-charge appointment of its Managing Directors. It is stated that the
petitioner is class-I officer being a Deputy Director(Dairy) and he possessed
Post-Graduate degree as per Bye-Laws 23.3 whereas respondent No.6 is only
a class-II officer without any post-Graduate degree. Besides this, the
respondent No.6 has no experience of three years in
procurement/production/marketing in Dairy as provided in the Bye-Laws as he
was promoted to the post of Procurement Officer in the year 2023 only.
Accordingly, it is submitted that respondent No.6 is not eligible to be appointed
as Managing Director on regular basis and hence on in-charge basis also and
the petitioner having the higher desirable qualifications and two grades higher
than the respondent No.6, has to be preferred and appointed on in-charge
basis.
[18] It is also stated that if the impugned order dated 13.03.2024 is set
aside by this Court, the resolution No.2 of the Board of Administrator meeting
dated 26.03.2024 and the approval of the Registrar, Co-operative Society dated
01.04.2024 will lose all their relevancy and as such the petitioner is not bound
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 10
to challenge these irrelevant orders. It is prayed that the impugned order dated
13.03.2024 issued by the Government of Manipur nominating respondent No.6
as in-charge Managing Director of Manipur Milk Producers' Co-operative Union
Limited be set aside and official respondents be directed to consider the case
of the petitioner for appointment as Managing Director on in-charge basis as
per Bye-Laws and statue read with the Office Memorandum dated 03.10.2020.
[19] Mr. M. Devananda, learned Addl.AG submits that writ petition is not
maintainable in the present form as the petitioner has failed to challenge the
resolution No.2 of the proceeding and the Board of Director held on 26.03.2024
accepting the nomination made by the State Government vide impugned order
13.03.2024 nominating respondent No.6 as in-charge Managing Director of
Manipur Milk Producers' Co-operative Union Limited and the approval of the
Registrar Co-operation Manipur vide order dated 01.04.2024. It is stated that
the present petition is barred by the principle of 'approbate and reprobate'
wherein a person cannot accepts a portion of the proceeding and challenge the
other portion.
[20] On merit, learned Addl. AG submits that the Office Memorandum
dated 03.10.2020 will be applicable to the Government employees and not to
the members of the Society Union where appointment of the office bearers is
to be as per Bye-Laws and the Act. It is also stated that post of Managing
Director of the Union is not a promotional post in terms of the Bye-Laws from
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 11
the cadre officers of the Veterinary & Animal Husbandry department. Hence,
there is no question of supersession by junior.
[21] Mr. M. Devananda, learned Addl.AG has also stated that after
considering the requirement as prescribed by Bye-Laws and the statue, the
name of the respondent No.6 was nominated by the State Government in terms
of Section 74(2) of the Manipur Co-operative Societies, Act 1976 as an interim
measure till the appointment of the regular Managing Director and hence, there
is no illegality in the nomination of respondent No.6. It is clarified that
respondent No.6 is a class-II officer and has requisite qualification and
experience of more than 16(eighteen) years in the procurement and marketing
of the Dairy products.
[22] Learned Addl.AG draws the attention of this Court to a letter dated
01.04.2024 issued by department of Fisheries, Animal Husbandry & Dairying
Department of Animal Husbandry & Dairying, Government of India to the
Managing Director of State Milk Federations/Milk Unions wherein it was
directed to utilize the pending fund of Rs. 357.51 crore by 26(twenty six) States.
It is pointed out that due to the interim order dated 03.04.2024 passed by this
Court, the fund cannot be utilized. It is stated that the respondent No.6 has
been made an authority to assign the cheque along with the Chairperson and
due to the interim order, no transaction can be made with the bank. It is
submitted that the interim order may be vacated.
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 12
[23] Mr. M. Devananda, learned Addl.AG has relied upon the judgement
of Hon'ble Supreme Court in the case of Union of India -Vs- Murugesan
(2022) 2 SCC 25 para Nos. 26, 27 & 32 wherein it is held that a person cannot
approbate and reprobate an order. It is stated that the petitioner having signed
in the resolution No.2 of the proceeding of the Board of Administrators dated
26.03.2024, cannot challenge the appointment of respondent No.6. It is also
stated that Managing Director is to be appointed as per Bye-Laws and in terms
of the statue. Since respondent No.6 has all the requisite qualifications of being
considered as Managing Director, there is no illegality in appointing him as
Managing Director on in-charge basis. It is submitted that writ petition be
dismissed at this stage having devoid of any merit.
[24] Mr. H. S. Paonam, learned senior counsel for the respondent No.6
submitted that the O.M dated 03.10.2020 is not applicable while making
appointment of Managing Director of Co-operative Union on in-charge basis.
[25] Learned senior counsel for the respondent No.6 draws the attention
of this Court to the object behind the O.M. specifying norms for appointment on
in-charge basis. It is pointed out that the O.M. will be applicable in the case of
appointment by direct recruitment or promotion from a cadre post. It is stated
that the post of Managing Director is not a cadre post from the officers of the
Veterinary and Animal Husbandry Department. The appointment of a Managing
Director of Manipur Milk Producers' Co-operative Union Limited is in terms of
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 13
Clause 23.3 of Bye-Laws and the provision of Section 74(2) of Manipur Co-
operative Society Act, 1976. Bye-Laws says that a person to be made for
appointment as Managing Director of the Union, should possess a minimum
qualification of diploma or degree in Dairy with 10(ten) years experience, out
which 3(three) years is under Procurement/Production/Marketing of a Dairy unit
and Post Graduate is a desirable qualification.
[26] The appointment is from class-I or class-II officers. Learned senior
counsel for respondent No.6 has pointed out that respondent No.6 is a degree
in Dairy and class -II and has more than 16(sixteen) years' experience in
marketing and procurement in Dairy unit and as such he is eligible for
appointment as managing Director as per the Bye-Laws and the statue.
[27] On the other hand, it is stated that the petitioner was promoted to
the post of Deputy Director(Dairy) vide order dated 27.12.2023 and as such he
has less than one years' experience in marketing/procurement or production in
a Dairy unit. Prior to this, he was posted as Veterinary Officer in the department
of Veterinary and Animal Husbandry and has no experience in Dairy.
[28] It is stated that as per Section 72(3) of the Act of 1976, the
nomination of a Managing Director is an appointment on deputation and hence
the OM dated 03.10.2020 is not applicable in case of appointment as Managing
Director of a Society, even if it is assumed that the OM will be applicable for
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 14
other officers of the Union as submitted by the learned counsel for the
petitioner.
[29] Mr. H. S. Paonam, learned senior counsel, for the respondent No.6
has relied on the judgement in Nazir Ahmed V. Emperor AIR 1936 PC 253,
(2015) 8 SCC 722 para 14 and Civil appeal No.4807 of 2022 judgement dated
25.07.2022 in the case of Union of India Vs. Mahendra Singh passed by
Hon'ble Supreme Court wherein it says that things to be done as prescribed by
the law and not in any other form. It is submitted that in the present case, the
appointment of respondent No.6 is done as per rules.
[30] It is pointed out that in terms of Section 78(2), the Board of
Administrators has the same power as the Board Directors during the period of
supersession of the Board. Finally, it is stated that the impugned order does not
suffer from any illegality and writ petition deserves to be rejected being devoid
of any merit.
[31] This Court has considered the submissions made at the bar, the
materials on record and the relevant case laws in this regard. Before
proceeding further, it will be useful to reproduce the relevant provisions of law
and notifications in this regard.
(1) Office Memorandum dated 03.10.2020
Government of Manipur
Department of Personnel & Administrative Reform
(Personnel Division)
Office Memorandum
Imphal, the 3rd October, 2020
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 15
No. 23/20/2019-Misc(PHED)/DP: A large number of references has been made by
various departments under the Government of Manipur Seeking clarity from Department
of Personnel in regards to appointments on in-charge basis to various posts and conditions
for making such appointments etc.
2. At present, there is no laid down norm for making appointments on in-charge basis to
posts under the State Government. In the absence of laid down norms, various
departments have been resorting to such appointment usually by considering seniority of
officials, place of posting, etc. In other cases, there is want of better logic apparent on the
fact of such appointment leading to discontent in the cadre concerned and ultimately
affecting efficiency of public administration.
3. In this context, the need to issue detail norms for appointment of officials to a post on
in-charge basis has been under consideration of the State Government from some time.
4. Thus, with a view to bring uniformly, clarity and enforceable norms in making such in-
charge appointments, the following norms are hereby issued for compliance by all
concerned:
i. Appointment on in-charge basis shall be made against a post only when there is
no official eligible as per RR to fill up the said post, either by direct recruitment or by
promotion through duly constituted DPC.
ii. In the absence of any official eligible as per RR to fill up a particular post, the
senior most person amongst cadre/official belonging to the feeder post of the said
particular post shall be appointed to hold the said post on in-charge basis, at no extra
remuneration and in addition to the substantial post held by the appointee in the lower
post. Needless to say, the appointee shall draw pay against the lower post substantiality
held by him.
iii. Where no arrangement can be made as in para (ii) above, an in-charge
appointment shall be made to a vacant post from a person holding a similar post(at same
rank and/or designation), at no extra remuneration.
vi. An official appointed on in-charge basis against any post shall have the same
financial power as a person appointed on substantial basis against the said post would
enjoy.
5. These instruction shall be applicable while making appointments on in-charge basis to
all posts under the State Government existing in all Government departments, agencies,
societies, bodies, offices, companies, PSUs, autonomous bodies, etc.
Special Secretary(DP)
Government of Manipur
(2) Relevant portion of the Bye-Laws
Bye Existing Bye Laws Amended Provisions
laws
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 16
23.3 To appoint the Managing Director and To appoint the Managing Director
the Board shall have power to suspend and the Board shall have power to
him if require, however prior approval suspend him if require, however
of the Registrar, Cooperative Societiesprior approval of the Registrar,
shall be obtained. Appointment of Cooperative Societies shall be
Managing Director and Senior obtained. Appointment of
Executive shall be made by the Board Managing Director shall be made
of the committee formed for the by the Board of Directors on the
purpose. recommendation of the committee
Qualification for the post of Managing formed for the purpose.
Director shall be as under. Qualification for the post of
Managing Director shall be as
Good degree in food Technology/Dairy under.
Engineer/Dairy technology/Animal
Husbandry, preferably with a post Good Degree in Dairy Technology
graduate qualification in business or diploma in Dairy Technology
management. Must have at least ten with ten years experience,
years Managerial experience. Out of preferably with a post graduate
which three years as overall in-charge qualification in business
of a large Dairy/Food/Consumer management. Must have at least
product processing unit. Should be a ten years managerial experience.
man of proven managerial Out of which three years as overall
competence. The condition are, in-charge of procurement/
however relaxable in case of production/marketing in a large
Government deputation. Dairy/Food/Consumer product
unit. The conditions are, however
relaxable in case of Government
deputation.
The Board shall have power to
appoint/designate five Managers,
subordinate to MD and on Internal
Auditor, as classified under:
1. Manager, General
Administration.
2. Manager, Marketing.
3. Manager, Production.
4. Manager, procurement
5. Manager, Finance &
Accounts
6. Internal Auditor
The educational qualification of
the Managers of Sl.No. 1 to 3 shall
be same as prescribed for
Managing Director and preferably
with a graduate/diploma in
business/Co-operative
Management. That of Sl. No.5
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 17
shall be M.
Commerce/MBA/B.Commerce
with five years experience in a
business institution. The
conditions for all the posts of
Managers and Internal Auditors
are, however relaxable in case of
Government deputation.
(3) Section 74(2) & 78(2) of the Manipur Co-operative Societies Act, 1976.
"74 (2). The State Govt. may nominate a Government servant not below the rank of class-
II officer to work as Managing Director/General Manager/Manager as the case may be of
a Co-operative Institution wherein the State Government have contributed to its share
capital, guaranteed loans to the tune of Rs. 3/- Lakhs (Rupees three lakhs) or above or if
the society has incurred loss to the extent of 25 p.c of its paid up capital. The officer so
nominated shall be deemed to be on deputation with the society and his salary and
allowance as determined by the State Government shall be paid from the fund of the
society. The officer so deputed shall be the ex-officio member of the Board and shall have
the right to vote. The officer shall be the Chief executive Officer of the society and have
the following assignments; among others:-
(a) To have general [control over the administration of the society.
(b) To convene meetings of the management Board and General Body.
(c) To receive all moneys and securities on behalf of the society and to make
arrangements for the proper maintenance and custody of cash balance and
other properties of the institution.
(d) To endorse and transfer promissory notes, Government securities and to
endorse, sign and negotiate cheque and other negotiable instruments on behalf
of the institution.
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 18
(e) To be responsible for the conduct, supervision and management of the day to
day business and [transection of the society.]
(f) To sign all deposits, receipts and operate the accounts of the society with banks.
(g) To sign bonds, and agreement in favour of the society.
(h) To determine the powers, duties and responsibilities of the employees of the
society.
(i) To institute, [conduct, defend compound or abandon any suit or other legal
proceedings by or against the society or otherwise concerning the affairs of the
society and also to compound and allow time for payment or satisfaction of any
claims or demand by or against the society.
(j) Subject to the regulations if any, which may be framed by the Board to enter into
negotiations and sanction contracts the value of which may be determined by
the Board from time to time.
(k) To delegate all or any of the said powers to an employee or employees of the
society subject to the ultimate control and authority being retained by him."
"78. (2) The Board or administrators so appointed shall, subject to the control of the
Registrar and to such instructions as he may from time to time give, have power to exercise
all or any of the functions of the Board or any officer of the society, and take all such action
as may be required in the interest of the society."
[32] From the above, it is clear that for appointment as Managing
Director of the Manipur Milk Producers' Co-operative Union Limited, a person
should possess a degree or diploma with Dairy with 10(ten) years experience,
out of which 3(three) years in marketing/procurement/production in a Dairy unit.
The officer must not be below rank of a class-II officer under the Government
of Manipur and having post Graduate degree is desirable.
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 19
[33] In the present case, the respondent No.6 is class-II officer having
more than 16(sixteen) years of experience in marketing and production of a
Dairy unit and as such he is eligible for appointment as Managing Director.
[34] It is the case of the petitioner that he is post Graduate in Dairy and
class-I officer and two status above the respondent No.6 in the department of
Veterinary & Animal Husbandry, and as such he is more competent than
respondent No.6 for appointment as Managing Director of the Union on in-
charge basis.
[35] In the present case, the issue is not the examination of the
respective qualifications of the petitioner and the respondent No.6 for
appointment to the post of Managing Director of the Union on regular basis and
as such this Court does not intends to express any opinion on the relative merit
and demerit of the petitioner vis-à-vis the respondent No.6 and a finding in this
regard will prejudice the case of the either parties in future. The limited question
for determination before this Court is whether the Office Memorandum dated
03.10.2020 will be applicable in case of an appointment of Managing Director
of the Union on in-charge basis.
[36] There is no dispute at the bar that the Office Memorandum dated
03.10.2020 will rule in case of appointment on in-charge basis in any
Government Department and in respect of other bodies as specified in para 5
of the O.M.
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[37] On careful consideration of para 4(i) & (ii) of the O.M. dated
03.10.2020, it is apparent that an appointment on in-charge basis has to be
resorted only when eligible officials are not available for appointment by direct
recruitment or by promotion as per rules and while considering in-charge
appointment, the senior most in the feeder cadre has to be appointed without
any extra remuneration in addition to his/her substantive post at lower grade.
The expression "either by direct recruitment or by promotion" as mentioned in
para 4(i) of the O.M. signifies that the O.M. will be applicable only in case of
direct recruitment and/or by promotion, even though the O.M. will be applicable
to all posts under the Government of Manipur and other bodies as mentioned
in para 5 of the OM.
[38] In the present case, Section 74(2) of the Act of 1976 prescribes that
the officer so nominated to be a Managing Director shall be deemed to be on
'deputation' with the society which implies that the appointment of Managing
Director of Manipur Co-operative Union by nomination under Section 74(2) of
the Act of 1976 will be an appointment by deputation. As noted above, the O.M.
will be applicable only in case of appointment by direct recruitment or by
promotion and Section 74(2) of Manipur Co-operative Societies Act, 1976
provides that the officer nominated to be a Managing Director of the
Union/Society will be deemed to be on deputation.
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 21
[39] Further, it is not the case of the State Government that resort to in-
charge appointment of the Managing Director of the Union is made due to non-
availability of eligible candidates. Rather, it is a temporary arrangement
awaiting regular appointment to the post of MD. This Court is of the considered
view that the present case does not fall within the purview of the OM dated
03.10.2020 because of the absence of the crucial criteria of 'non-availability of
eligible candidates as per rules'.
[40] In view of the above provisions of the law, this Court is of the opinion
that the Office Memorandum dated 03.10.2020 stipulating the norms for
appointment on in-charge basis will not be applicable in case of appointment to
the Managing Director of Co-operative Society on in-charge basis for the
following reasons that:
(i) the nomination to the Managing Director in terms of Section 74(2)
of the Act is a deputation.
(ii) the post of Managing Director of Manipur Co-operative Union is
not a promotional post from the officers of Veterinary & Animal
Husbandry department.
(iii) the post of Deputy Director Dairy is not a feeder post for
appointment to the post of Managing Director of Manipur Milk
Producers' Co-operative Union Limited.
WP(C)No. 236 of 2014 with MC(WP(c))No.215 of 2024 & MC(WP(C))No.245 of 2024 Page 22
(iv) resort to in-charge appointment of the Managing Director is not
made due to non-availability of eligible candidates as per rules, but
as a temporary measures awaiting regular appointment.
[41] Due to the above reasons, it is held that the Office Memorandum
dated 03.10.2020 is not applicable in case of appointment of Managing Director
Manipur Milk Producers' Co-operative Union Limited on in-charge basis and as
such the writ petition based on the O.M. dated 03.10.2020 is liable to be
dismissed at the threshold.
[42] This Court finds force in the submissions of Mr. M. Devananda,
learned Addl. AG, and Mr. H. S, Paonam, learned senior counsel for the
respondent No.6 that the writ petition is hit by the principles of approbate and
reprobate and the doctrine of promissory estoppel. The petitioner having signed
in the resolution dated 26.03.2024 and accepting the nomination of respondent
No.6 as Managing Director on in-charge basis vide impugned order dated
13.03.2024, cannot question the appointment of respondent No.6. The prayer
in the writ petition is also incomplete as the petitioner has failed to challenge
the resolution No.2 of Board of Administrators proceeding dated 26.03.2024
and the approval given by the Registrar Co-operative dated 01.04.2024 by the
Registrar of Co-operative Society.
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[42] In view of the above findings, the writ petition is dismissed and the
interim order dated 03.04.2024 is vacated. The pending applications are also
disposed of in terms of the above directions and observations.
[43] No costs.
JUDGE
FR/NFR
John Kom
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