Full Judgment Text
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CASE NO.:
Appeal (civil) 2126-2127 of 2001
PETITIONER:
N. BIRENDRA SINGH
RESPONDENT:
L. PRIYOKUMAR SINGH & ORS
DATE OF JUDGMENT: 05/05/2006
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
J U D G M E N T
WITH
Civil Appeal Nos.2133, 2132, 2128-2131 and 8510-8513 of 2001
S.B. SINHA, J :
These appeals involving common questions of law and
fact were taken up for hearing together and are being
disposed of by this common judgment.
The case has a chequered history. We would,
however, note the factual matrix of the matter, from
C.A.Nos.2126-2127 of 2001. The appellant was appointed
as a Section Officer, Grade-I (Elect.). He was promoted to
the post of Assistant Engineer (Elect.) on an ad-hoc basis on
5.2.1980. By a Government order dated 30th September,
1985, on recommendations of Departmental Promotion
Committee (DPC), the appellant was appointed as an
Assistant Engineer on officiating basis w.e.f. 15.7.1085. The
State, in supercession of the said order, promoted him as an
officiating Assistant Engineer (Elect.) on a SC/ST reserved
seat. A tentative seniority list was published in the year
1991 wherein his name was not included, presumably on
the basis that his services had not been regularised. His
services were, however, regularised w.e.f. 29.8.1992, but
no retrospective effect thereto was given, whereupon he
filed a writ petition before the Gauhati High Court. A
learned Single Judge of the said court by an order dated
27.11.1992 directed the State Government to regularise his
ad-hoc and/or officiating service w.e.f. 5.2.1980. The said
direction was complied with by the State by issuing
Government order dated 3.2.1993, in terms whereof the
services of the Appellant were regularised with retrospective
effect, i.e., w.e.f. 5.2.1980. It stands admitted that the said
order dated 27.11.1992 was passed following a Division
Bench decision of the said court dated 23.3.1992 passed in
C.R.No.586/91 in the matter of one Kh. Ningthemjao Singh,
who is also an appellant before us, wherein directions were
issued in the following terms:
"\005 Considering the submission made
by the learned counsel for petitioner as
well as the learned Govt. Advocate and
after going through the judgment of
the Division Bench of this Court passed
in civil Rule No.586/91, I dispose of the
petition with the direction to regularise
the petitioner’s services with effect
from the date of his initial adhoc
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appointment i.e. 5.2.1980. The
seniority of the petitioner shall be
determined in accordance with the
rules and in the absence of such rules
as per Govt. instructions and in the
light of the judgments of the Apex
Court as well as of this Court."
He thereafter filed a representation for determination
of his seniority. As the question of seniority was pending
before the High Court at the instance of some other officers,
the appellant herein also filed a Writ Petition claiming similar
reliefs which was marked as C.R.No.226/93.
A tentative Seniority List was published on 30.6.1994
wherein he was shown at Serial No.7. He filed a
representation claiming that his seniority be reckoned from
the date of his regularisation. A final Seniority List was
published on 6.5.1995 wherein his position was shown as
Serial No.49. According to the appellant, his name should
have appeared at Serial No.13 of the seniority list. A writ
petition was again filed by him praying for quashing of the
final Seniority List and for determining his seniority from the
date of regularisation, which was marked as C.R.No.308/95.
Several interim orders were passed therein. The said
interim orders came to be vacated by an order dated
4.10.1996, but it was made clear that any promotion to the
post of Executive Engineer (Elect.) made during pendency of
the said writ petition shall be only on officiating basis and
subject to the results of the three writ petitions pending
before the High Court thence. The State thereafter
promoted 15 Assistant Engineers to the post of Executive
Engineer on ad-hoc basis which appointments were later on
directed to be on officiating basis.
By a judgment and order dated 16.5.1997, the learned
Single Judge allowed four Writ Petitions being
C.R.Nos.308/95 and 916/95 filed by the appellant, N.
Biirendra Singh, C.R.No.929/95 filed by Kh. Manglemtomba
Singh, C.R.No.345/95 filed by Kh. Ningthemjao Singh and
C.R.No.320/90 filed by the Association, whereby the said
final Seniority List dated 6.5.1995 was quashed and the
State was directed to determine the question of seniority
from the date of regularisation of the petitioners therein in
the post of Assistant Engineers stating:
"\005\005.I am, therefore, of the view that
the seniority list is required to be
prepared afresh counting the seniority
of the petitioners from the date of
regularisation of their services in the
post of Asst. Engineers. Consequently,
the final seniority list Annexed-A/12 of
C.R. 345/95 is required to be
cancelled. Accordingly, the final
seniority list of the Asst. Engineers
published by the Govt. on 6.5.1995
Annexure-A/12 is hereby quashed.
Govt. is directed to prepare a fresh
seniority list of the Asst. Engineers
counting the services of the petitioners
from the date of their regularisation in
the post of A.E. The State Govt. is,
further, directed to work out the
vacancies for the post of Asst.
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Engineers in the Electricity Department
and thereafter absorb the petitioners in
the vacant posts available under
promotion quota and count their
seniority from that date. The year in
which vacancy under promotion quota
is available, the petitioners should be
absorbed in those years and seniority
will count from that date."
Writ appeals thereagainst were filed by the State as
also by the affected employees.
A Division Bench of the High Court while admitting the
said Writ Appeals passed an order of status quo. However,
during pendency of the said Writ Appeals the services of the
15 Executive Engineers, who were appointed on officiating
basis, were regularised. The Division Bench of the High
Court, however, while upholding the judgment and order
passed by the learned Single Judge and dismissing the
appeals, in paragraph 21, directed that:
"21. Though we have dismissed the
appeal, yet it is made clear that things
like further promotion etc. already
made in accordance with R.R. on the
basis of that seniority list quashed shall
not be reopened. Promotions if made
on adhoc basis, at the time of
regularisation of such promotions the
cases of the persons who come ahead
of such promotees after refixation of
seniority shall also be considered if
they come within the zone of
consideration being otherwise eligible.
Adhoc promotions on the basis of
seniority list quashed shall not be
regularised without refixation of
seniority. This judgment shall not be
used as a handle by the writ petitioners
for another round of litigation to claim
further benefit etc. on the principle of
"next below rule". Things shall be
allowed to rest as if on this count. We
are constrained to give this direction as
the learned Single Judge almost
opened a Pandora’s box giving
direction to fix seniority from 1979-80
which will make the situation topsy
turvy. That is not the function of the
writ Court. A writ court must not
behave like a horned bull in a china
clay shop. The seniority shall be
refixed by the authority within 6
months from the date of the judgment
by adhering to Rules and directions of
this court by inviting objections from
all who will be affected by such
redetermination. The writ court being
a court of equity at the time of
moulding the relief can put the parties
to terms to make it just, proper and
workable. Justice does not turn up
bottom side up. We must bear in mind
that our justice delivery system is a
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human institution, created by human
agents to serve human ends and in
doing so always we must strike a
balance in such a manner that our
decision should not usually be an
attempt to touch a hornet’s nest to
create further complications and
problems that should be avoided as far
as possible."
Civil Appeal Nos.2126-2127/2001 has been filed by N.
Birendra Singh, Civil Appeal No.2132/2001 has been filed by
Kh. Ningthemjao Singh and Civil Appeal No.2133/2001 has
been filed by Kh. Manglemtomba Singh questioning that
part of the judgment. Civil Appeal Nos. 2128-2131/2001 has
been filed by the State of Manipur against the judgment of
the Division Bench dismissing the said appeals. One L.
Priyokumar Singh, who, however, had already been
promoted as Executive Engineer and who had filed a writ
petition questioning the inter-se seniority of the employees
appointed, has also filed an appeal separately which is
marked as Civil Appeal Nos.8510-8513 of 2001.
The short question raised in these appeals by the
learned counsel appearing on behalf of the appellants is that
the Division Bench having dismissed the appeals by a
judgment and order dated 4.1.2000 preferred from the
judgment and order dated 16.5.1997 passed by the learned
Single Judge could not have issued the afore-mentioned
directions.
Ms. S. Janani, learned counsel appearing on behalf of
the State of Manipur and Mr. S.K. Bhattacharya, learned
counsel appearing on behalf of private respondents, on the
other hand, would draw our attention to two orders dated
20th August, 1990 and 4th January, 2000 passed by the
Division Bench of the said Court and submitted that
although, the Division Bench, while allowing the writ
petitions filed by the Assistant Engineers praying for their
regularisation with retrospective effect directed that they be
given appropriate seniority, on that basis, however, on an
application for modification having been filed before the said
court, directed that:
"So far as the service benefits as
enumerated in general terms in the
operative portion of the order as
reproduced above, it shall not include
conferring benefit of seniority inter-se
seniority of the Asstt. Engineers is
governed by rules. While the other
monetary and post retirement benefits,
remain unaffected the word "seniority"
appearing in the operative portion of
the order is deleted, which shall be
governed and determined in
accordance with the existing rules
taking into consideration the case of
others as well."
An application has been filed for bringing additional
facts and documents on record on behalf of respondent
Nos.3, 6, 7, 8 and 10, wherein an order dated 27.2.1998
passed in Writ Appeal No.154/97 and other connected
appeals, while setting aside the orders of the learned Single
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Judge dated 18.3.1997 and 21.5.1997, it was directed to fill
up 20 vacant posts on regular basis stating:
"It has been submitted by Mr. A.
Nilamani Singh that as of now, there are
about 20 vacancies in the grade of
Executive Engineer, Electricity to be
filled up on regular basis. If that is so,
the respondents are now directed to fill
up those posts on regular basis within a
period of 2 (two) months from the date
of receipt of this order. Submission has
also been made by Mr. B.I. Sharma that
his client Shri B. Sisirkumar Sharma
would be retiring sometime in the month
of August, 1998. This would also be a
ground why the respondent should not
fill up the posts on regular basis
expeditiously."
The learned counsel appearing on behalf of the
respondents contended that the cases of the appellants Kh.
Ningthemjao Singh and Kh. Manglemtomba Singh had been
considered by the departmental promotion committee as
they fell within the zone even without taking into
consideration the date of regularisation with retrospective
effect, but they have not been found suitable therefor.
Learned counsel appearing on behalf of the State, however,
pointed out that the appellant N. Birendra Singh had been
given all the benefits due to him and the State would
furthermore give him all the monetary benefits treating him
to have been regularised in the post of Assistant Engineer
w.e.f. 5.2.1980. It was pointed out that as the minimum
qualification required for promotion to the post of
Superintending Engineer is Degree in Bachelor of
Engineering, both, N. Birendra Singh and Kh.
Manglemtomba Singh, being only diploma-holders, cannot
be considered for promotion to the post of Superintending
Engineer.
It is not in dispute that the post of Executive Engineer
is a selection post.
We, however, may not go into the question of
correctness or otherwise of the opinion of DPC held in 1998
finding the appellant K. Ningthemjao Singh and Kh.
Manglemtomba Singh unsuitable for promotion to the post
of Executive Engineer, as the writ petitions are pending
before the Guwahati High Court in relation thereto. It has
further been brought to our notice that some of the
appellants have already been promoted to the post of
Superintending Engineer. L. Priyokumar has been promoted
as Superintending Engineer on 2.9.1995, whereas Ng. Sarat
Singh has been promoted on 10.2.2006. T. Raghumani
Singh, however, has not been promoted. Kh. Ningthemjao
Singh is said to have retired from service.
The grievances of the appellants appear to be that
although they were eligible for being promoted to the post
of Assistant Engineer on regular basis in October, 1976,
their cases have been ignored. Further more, despite their
regularisation, the State had failed to take into account the
period between the date on which they were appointed on
ad-hoc basis and regular basis for the purpose of reckoning
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their seniority.
Before adverting to the other contentions raised in
these appeals, we must, at the outset, observe that the
Division Bench of the High Court committed a manifest error
in making observations as against the learned Single Judge
as contained in paragraph 21 of the impugned judgment.
We have noticed hereinbefore that the judgment and order
passed by the learned Single Judge was found to be correct
by the Division Bench. The appeals preferred by the State
and the other respondents herein were dismissed. If the
judgment and order passed by the learned Single Judge was
correct, in our opinion, there was no occasion for the
Division Bench to issue certain directions in terms whereof
the appellants herein were deprived of the benefit of the
judgment and order of the learned Single Judge indirectly,
which could not have been done directly. If the Division
Bench was of the opinion that in passing his order the
learned Single Judge has not taken into consideration
certain aspects of the matter and, in particular, some orders
which were relevant for determination of the issue, the
Division Bench could have said so and dealt with the same
appropriately. It did not.
It is a trite law that what cannot be done directly,
cannot be done indirectly. The Division Bench, in making
observations and issuing directions in paragraph 21 of the
impugned judgment, sought to do the same, which was
impermissible in law. If the Division Bench was of the
opinion that the learned Single Judge has committed
mistakes in issuing the directions, it could interfere
therewith by assigning appropriate and cogent reasons
therefor. The observations made and directions issued by
the Division Bench do not contain any reason as to how and
in what manner the learned Single Judge went wrong in
passing his judgment.
The order dated 25th November, 1994 passed by a
Division Bench of the said Court in C.M.A.No.352/93,
appears to have been passed on an application for
modification of an order dated 20th August, 1990 passed by
another Division Bench of the said Court in
C.R.No.819/88/322/88/90. We are not aware as to what
was those writ petitions about. However, we would proceed
on the premise that the said order had direct bearing with
the order of the learned Single Judge dated 27.11.1992
passed in favour of the appellants. That Division Bench in
its order dated 20th August, 1990, held:
"Mr. Pramod Singh, learned Govt.
Advocate has an apprehension that, if
no post was available, regularisation
may create problem. We see no force in
the above submission inasmuch as, by
giving retrospective effect to the order
of regularisation, the petitioner shall be
entitled to the benefit of counting the
entire period of service for pay, i.e.
increment, seniority, pension and other
pensionary benefit."
The application for modification was filed by the
employees who were not parties to the said proceeding.
Some of the said applicants appear to be appellants before
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us. By reason of the said order, a modification was directed
to be made only to the effect that the seniority of the
concerned Assistant Engineers, in terms of order of
regularisation, shall be considered in terms of the Rules and
not in terms of the order passed by the Division Bench. We
fail to appreciate the difference between the two inasmuch
as the apprehension expressed by some of the Assistant
Engineers that the services of the writ petitioners were
directed to be regularised with retrospective date, i.e., on
the date when they were appointed on ad-hoc basis, they
would have a march over the other employees, was wholly
misconceived. When the earlier Division Bench spoke of
seniority amongst the Assistant Engineers, not only the
same was required to be determined in terms of the rules,
there was no question of the writ petitioners gaining a
march over the other employees similarly situated or who
were otherwise senior to them. Even otherwise, the learned
Single Judge in his order dated 27.11.1992 exactly did so
stating that
"\005..the seniority of the petitioner shall
be determined in accordance with the
rules and in the absence of such rules as
per Government instructions and in the
light of the judgments of the Apex Court
as well as of this Court."
What was, therefore, directed to be obeyed was the
law operating in the field.
By reason thereof, the Division Bench and
consequently, the learned Single Judge never meant that
despite the fact that the appellants were held to be entitled
to the benefit of regularisation in service with effect from
the date on which they were appointed on an ad-hoc basis,
the concerned respondent herein would be deprived of their
seniority to which they were otherwise entitled to in law.
Interlocutory Application Nos.9 and 10 of 2005 filed on
behalf of respondent Nos.3, 6, 7, 8 and 10 have not been
moved and no order has been passed thereupon. We, at
this stage, cannot rely on the contents of the said
applications. The contentions of the said applications do not
appear to have been brought on record before the High
Court. The question which arose for consideration therein
appear to be confined to fixation of pay and allowances in
terms of Fundamental and Supplementary Rules. It was
held that they had been holding substantive post of
Assistant Engineer and they were on current charge of
Executive Engineer and as such, they were not entitled to
the pay and allowances to the post of the Executive
Engineer in terms of F.R. 49. If some observations have
been made therein having regard to the submissions made
by a counsel for a party, the same would not mean that the
right of those who were not parties thereto, would be
affected thereby. Reliance placed on the judgment and
order dated 20.8.90 is, thus, not tenable.
We appreciate the anxiety on the part of the State that
if the entire seniority list is directed to be reopened, it may
give rise to many more litigations. It must think itself
therefor. But it is the State alone who is responsible for
such a situation. The appellants herein have been pursuing
their remedies under the law. They had been granted relief
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as orders were passed in their favour. The said order,
admittedly, attained finality, and thus, cannot be reopened.
It is, thus, too late in the day for the State now to urge that
the promotions granted to some of the appellants herein in
the post of Assistant Engineer (Elect.) were not in
accordance with law. Such a contention is barred under the
principle of res judicata.
We are, therefore, of the opinion that having regard to
its own conduct, the State of Manipur now cannot be heard
to say that this Court should uphold the impugned judgment
of the Division Bench, although, in law the same is
impermissible. We decline to do so. We, therefore, while
setting aside the observations and directions issued by the
Division Bench in paragraph 21 of the impugned judgment,
place on record the concession made by the learned counsel
appearing on behalf of the State that the appellant, N.
Birendra Singh, would be given all monetary benefits w.e.f.
5.2.1980. We do not find any merit in the appeal preferred
by the State. As the learned Single Judge has directed the
State to implement its own order, the legal consequences of
the said order must ensue and if by reason thereof the
concerned appellants had derived certain benefits, there is
no reason for us to deprive them therefrom only because
the State may feel some difficulty otherwise.
In the result, Civil Appeal Nos.2128-2131 of 2001
preferred by the State are dismissed and other connected
appeals filed by the appellants herein are allowed. The writ
appeals are disposed of with the aforementioned
observations and directions.
Having regard to the fact that some of the writ
petitions questioning the order of promotion and seniority
are pending consideration before the High Court, we would
request the High Court to consider the desirability of
disposing of the matters as expeditiously as possible.
In the facts and circumstances of the case, the parties
shall bear their own costs.