Manipur High Court
K. A. Mercy Shimray vs The State Of Manipur Represented By The ... on 13 May, 2024
Author: A. Guneshwar Sharma
Bench: A. Guneshwar Sharma
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C) No. 229 of 2021
K. A. Mercy Shimray, aged about 50 years, W/o Ngamkholal
Singson of New Lambulane, P.O. Imphal, P.S. Porompat,
District-Imphal East, Manipur-795001.
...... Petitioner/s
- Versus -
1. The State of Manipur represented by the Additional Chief
Secretary/Principal Secretary/Commissioner (Finance), Old
Secretariat Building, Babupara, Government of Manipur-
795001.
2. The Director, Treasuries & Accounts, Government of Manipur,
D.C. Complex Lamphel, P.O. & P.S. Lamphel, Imphal West
District, Manipur-795004.
3. S. Ibungochouba Singh (Senior Accountant) of Naoremthong
Laishram Leikai, P.O. & P.S. Lamphel, District-Imphal West,
Manipur.
4. Y. Sobita Devi (Senior Accountant) of Lamphel Sanakeithel,
P.O. & P.S. Lamphel, District-Imphal West, Manipur.
5. I. Rashmani Devi (Senior Accountant) of Khongman Zone IV,
P.O. Singjamei, P.S. Irilbung, District-Imphal East, Manipur.
6. Shri N. Pumsuanmung (Senior Accountant) of Churachandpur,
P.O. & P.S. Churachandpur, District-Churachandpur, Manipur.
........Respondent/s
With
WP(C) No. 229 of 2021 with
WP(C) No. 65 of 2021 Page 1
K. A. Mercy Shimray, aged about 50 years, W/o Ngamkholal
Singson of New Lambulane, P.O. Imphal, P.S. Porompat,
District-Imphal East, Manipur-795001.
...... Petitioner/s
- Versus -
1. The State of Manipur represented by the Additional Chief
Secretary/Principal Secretary/Commissioner (Finance), Old
Secretariat Building, Babupara, Government of Manipur-
795001.
2. The Director, Treasuries & Accounts, Government of Manipur,
D.C. Complex Lamphel, P.O. & P.S. Lamphel, Imphal West
District, Manipur-795004.
.......Respodnent/s
B E F O R E
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
For the petitioner :: Mr. H. Kenajit. Adv.
For the respondents :: Mr. Shyam Sharma, G.A., Mr. Ch.
Ngongo, Sr. Adv. assisted by Ms. S.
Gangarani, Adv.
Date of Hearing :: 08.05.2024
Date of Judgment and Order :: 13.05.2024
JUDGMENT & ORDER (CAV)
[1] Heard Mr. H. Kenajit, learned counsel for the petitioner, Mr.
Shyam Sharma, learned G.A. for the State respondent and Mr. Ch. Ngongo,
learned senior counsel assisted by Ms. S. Gangarani, learned counsel for
respondent No. 4.
WP(C) No. 229 of 2021 with
WP(C) No. 65 of 2021 Page 2
[2] The brief fact of the case is that the petitioner was initially
appointed as Junior Accountant Assistant (JAA) in the year 1997 and a DPC
was held on 26.05.2009 for filling up the vacancies of Senior Accounts
Assistant by promotion. Amongst the JAAs, the name of the petitioner was
also recommended but the name of the petitioner was kept in sealed cover
as a criminal case was pending against the petitioner. Vide order and
corrigendum both dated 10.02.2016 issued by respondent No. 2, the sealed
cover of the DPC held on 26.05.2009 in respect of the petitioner was opened
as the FIR case against the petitioner and others was closed and on the
recommendation of the said DPC, the petitioner was promoted to Senior
Accounts Assistant on officiating basis wef 10.02.2016. By another order
dated 10.02.2016 issued by the Director, Treasuries & Accounts, Manipur,
the officiating promotion was made regular.
[3] In WP(C) No. 65 of 2021, the petitioner challenged the three
impugned orders all dated 10.02.2016 [Annexures-A-4,5&6] and to effect her
promotion wef 26.06.2009, the date other recommendees were promoted.
During the pendency of the present writ petition and on the recommendation
of the DPC held on 02.01.2021, four Senior Account Assistants were
promoted to the post of Senior Accountant vide order dated 22.01.2021.
Since the name of the petitioner was not considered, she challenged the
subsequent promotion order dated 22.01.2021 for setting aside the same
and to consider her name for promotion to the post of Senior Accountant. It
is stated that a Senior Accounts Assistant is eligible for promotion to the post
of Senior Accountant in completion of 8 years, if under graduate and 5 years,
if graduate and as such, the petitioner is eligible for promotion to the next
higher post i.e. Senior Accountant. It is also stated that the petitioner is
entitled for promotion on regular basis as done in the case of similarly
situated persons who faced the same DPC held on 26.06.2009.
[4] The writ petitioner has challenged mainly raising the ground
that the impugned order dated 22.01.2021 issued by the respondent No. 2
is bad in the eyes of law and against the settled law and the said impugned
order was based on the recommendation of the DPC held on 02.01.2021
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WP(C) No. 65 of 2021 Page 3
and the case of the petitioner, who is within the zone of consideration for
promotion to the post of Senior Accountant, was not considered. As such,
the DPC proceeding held on 02.01.2021 is arbitrary, bias and illegal.
[5] The respondent No. 2 filed counter affidavit stating that as on
02.01.2021, the petitioner's educational qualification was HSLC passed and
she had not completed 8 years of service as per the applicable RRs and
hence, she was not considered for promotion in the DPC held on 02.01.2021.
Vide promotion order dated 10.02.2016, the petitioner is promoted to the
post of SAA on "officiating basis" has been superseded by order dated
10.02.2016 by inserting the word "on regular basis" and that Shri
Lalmminglien (ST), who was initially promoted to the post of SAA on
officiating basis in place of the petitioner, has been reverted to his original
post of JAA w.e.f. 10.02.2016. It is prayed that the writ petitions may be
rejected.
[6] Mr. H. Kenajit, learned counsel for the petitioner submits that
once the criminal case is closed and the petitioner is exonerated, she ought
to be given promotion from the date recommended by the DPC and others
were promoted, ie, from 26.05.2009. Giving her promotion from 10.02.2016
prospectively is against the sealed cover procedure with respect to
exoneration of the charged employee. Attention of this Court is drawn to the
Office Memorandum dated 18.02.1994 issued by the General Administration
Department prescribing the procedures to be adopted in sealed cover with
respect to government servants against whom disciplinary and criminal
proceedings are pending. The recommendation of such employees is kept
in sealed cover during the pendency of the procedures and on conclusion,
the sealed cover is to be opened. Para 6 & 7 are reproduced below for clarity.
"6. On the conclusion of the disciplinary case/criminal prosecution,
the sealed cover or covers shall be opened. In case the officer is
completely exonerated, the due date of his promotion will be
determined with reference to the findings of the Screening
Committee kept in the sealed cover/covers and with reference to
the date of promotion of his next junior on the basis of such
findings. The Government servant may be promoted, if necessary,
by reverting the junior-most officiating person. He may be
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WP(C) No. 65 of 2021 Page 4
promoted notionally with reference to the date of promotion of his
junior.
In case of complete exoneration, the officer will also be paid
arrears of salaries and allowances. In other cases, the question of
arrears will be decided by the State Government by taking into
consideration all the facts and circumstances of the
disciplinary/criminal proceedings, but where the Government
denies arrears of salary or a part of it, the reasons for doing so
shall also be recorded.
7. If any penalty is imposed on the Government servant as a result
of the disciplinary proceedings or if he is found guilty in the criminal
prosecution against him, the findings of the sealed cover/covers
shall not be acted upon. His case for promotion may be
considered by the next Screening Committee in the normal course
and having regard to the penalty imposed on him."
[7] Mr. H. Kenajit, learned counsel for the petitioner vehemently
submits that the procedure adopted by the official respondents is totally
contrary to those stipulated by the OM. It is pointed out that in the present
case, the petitioner has been exonerated in the criminal case as the same
has been closed and she was not awarded with any punishment. In the
circumstances, she ought to be promoted on the same day on which her
junior was promoted, ie, on 26.06.2009. However, in contrary, she was
promoted on a later dated, ie, on 10.02.2016 in complete violation of the
stipulations made in the OM. Reliance is placed on a decision of the Hon'ble
Supreme Court in the case of Union of India v. K V Janakiraman: (1991)
4 SCC 109 @ Para 25 & 26 holding that when sealed cover is opened on
complete exoneration of the government employee, notional promotion
should be given from the date his juniors were promoted. It is submitted that
in the present case, the petitioner was not given promotion from the date of
promotion of his junior, ie, 26.06.2009, but from a later date, ie, from
10.02.2016 without any authority. It is also pointed out that if the petitioner
were given promotion wef 26.06.2009, she would have been eligible for
promotion to the post of Senior Accountant vide DPC proceeding held on
02.01.2021, having more than 8 years of regular service. It is prayed that the
official respondents be directed to treat the promotion of the petitioner to the
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WP(C) No. 65 of 2021 Page 5
post of Senior Accountant Assistant wef 26.06.2009 and to conduct a special
DPC for considering her promotion to the post of Senior Accountant.
[8] Mr. Shyam Sharma, learned GA submits that since criminal
case was pending against the petitioner, her recommendation by DPC was
kept in sealed cover and after closure of the case, the sealed cover was
opened and she was rightly granted promotion wef 10.02.2016. It is stated
that retrospective promotion cannot be given to the petitioner. It is also
pointed out that since the petitioner did not have qualifying service of 8 years,
she was not considered in the DPC held on 02.01.2021 for promotion to the
post of Senior Accountant. It is prayed that the writ petitions be dismissed.
[9] Mr. Ch. Ngongo, learned senior counsel appearing on behalf of
the respondent No.4 submits that promoting the petitioner wef 26.06.2009
should not affect the seniority of the respondent No.4 as the petitioner is her
junior in the initial appointment order. Setting aside of the promotion orders
is not required at all.
[10] This Court has considered the materials on record, the
submissions at bar and settled proposition of law in this regard.
[11] Generally, sealed cover procedure is resorted in promotion
when the government employee is facing disciplinary or criminal cases. The
recommendation of the DPC for such employee will be kept in sealed cover
during the pendency of the proceeding and on conclusion of the same, the
sealed cover will be opened. If the government employee is completely
exonerated in the proceeding, he/she ought to be promoted on the same day
his juniors have been promoted. If penalty is awarded to the employee, the
recommendation of the DPC kept in sealed cover will not be acted and the
employee will be considered for promotion in the next DPC. This rule is
established by the Hon'ble Apex Court in the cases of Union of India v. A
N Mohana: (2007) 5 SCC 425; Delhi Jal Board v. Mahinder Singh: (2000)
7 SCC 210 and State of MP v. I A Qureshi: (1998) 9 SCC 261. Thus, the
law is clear that once the employee is exonerated in the pending
proceedings, he/she is entitled to promotion notionally from the date the
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juniors have promoted. Admittedly, the petitioner has been exonerated in the
pending criminal case and she ought to be given notional promotion.
[12] In the circumstances, this Court moulds the relief prayed for by
the petitioner to the effect that her promotion to the post of Senior Accounts
Assistant in pursuance to DPC dated 26.05.2009 be counted from
26.06.2009 and not from 10.02.2016 as mentioned in order dated
10.02.2016 and Corrigendum dated 10.02.2016 issued by the Director,
Treasuries & Accounts, Manipur. It is clarified that her seniority is just above
Shri Haokhothang Lenglen (ST). It is further clarified that there will be no
change or modification in order dated 26.06.2009 with respect to merit list
except for those mentioned above. Official respondents are directed to
conduct a special DPC for considering the case of the petitioner for
promotion to the post of Senior Accountant. This exercise shall be completed
within a period of 3 (three) months from the date of receipt of a copy of this
order.
[7] With these directions and observations, the writ petitions are
disposed of. No cost. Send a copy of this order to the Director, Treasuries &
Accounts, Manipur for information and doing the needful.
JUDGE
FR/NFR
Kh. Joshua Maring
JOHN TELEN Digitally signed by JOHN TELEN KOM
KOM
Date: 2024.05.24 15:09:31 +05'30'
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