Manipur High Court
Shri Lairenlakpam Poireiton Meitei vs The State Of Manipur Represented By The ... on 5 February, 2021
Author: Kh. Nobin Singh
Bench: Kh. Nobin Singh
Page 1 of 63
IN THE HIGH COURT OF MANIPUR: AT IMPHAL
1. WP(C) No. 559 of 2020
1. Shri Lairenlakpam Poireiton Meitei, aged about 29 years, S/o
L. Bipin Meitei, a resident of Lilong Chajing Mamang Leikai, P.O.
Lilong & P.S. Singjamei, District Imphal West, Manipur - 795130,
working as Manager (Elect), MSPDCL.
2. Moirangthem Shrikanta Singh, aged about 29 years, S/o (Late)
M. Mangi Singh, a resident of Tentha Khunou Maning Leikai, P.O.
Wangjing & P.S. Khongjom, District Thoubal, Manipur - 795148,
working as Manager (Elect), MSPDCL.
3. Shijagurumayum Santosh Sharma, aged about 33 years, S/o
Sh. Sanakhomba Sharma, a resident of Kangla Siphai, P.O.
Lamlong & P.S. Lamlai, District Imphal East, Manipur - 795010,
working as Manager (Elect), MSPDCL.
4. Usham Rocky Singh, aged about 29 years, S/o (Late) U. Kumar
Singh, a resident of Khundrakpam Awang Leikai, P.O. Pangei &
P.S. Heingang, District Imphal East, Manipur - 795114, working as
Manager (Elect), MSPDCL.
5. Rajkumar Robinson Singh, aged about 33 years, S/o R.K.
Shurachandra Singh, a resident of Mairembam Leikai Sendra
Road, P.O. & P.S. Moirang, District Bishnupur, Manipur - 795133,
working as Manager (Elect), MSPDCL.
6. Konthoujam Binoy Singh, aged about 32 years, S/o
Poiroukhonjin, P.O. & P.S. Yairipok, Imphal East District, Manipur,
working as Manager (Elect), MSPDCL.
7. Nakambam Pritam Singh, aged about 28 years, S/o Nakabam
Rajdhon Singh, a resident of Chingmeirong Maning Leikai, P.O.
Imphal & P.S. Lamphel, Manipur, working as Manager (Elect),
MSPDCL.
8. Kapuipii Paul, aged about 28 years, S/o Pungding A of Tumuyon
Khullen Village, P.O. & P.S. Senapati, Senapati District, Manipur,
working as Manager (Elect), MSPDCL.
9. Khuveio David, aged about 27 years, S/o David Puni of
Saranamai Village, Paomata Block, P.O. & P.S. Tadubi, Senapati
District, Manipur, working as Manager (Elect), MSPDCL.
10. Ngamboi Vaiphei Baite, aged about 30 years, S/o Thothang
Vaiphei Baite of Terakhong Village, Tinseed road, P.O. Porompat
& P.S. Lamlao, Imphal East District, Manipur, working as Manager
(Elect), MSPDCL.
... Petitioners
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 2 of 63
-Versus-
1. The State of Manipur represented by the Commissioner/
Secretary (Power), Govt. of Manipur, Imphal Secretariat,
Babupara, P.O. & P.S. Imphal, Imphal West, Manipur-795001.
2. The Commissioner/Secretary (DP), Govt. of Manipur, Imphal
Secretariat, Babupara, P.O. & P.S. Imphal, Imphal West,
Manipur-795001.
3. The Manipur State Power Company Limited, Manipur through
its Managing Director, MSPC Ltd., office at Keishampat
Junction, P.O. & P.S Imphal, Imphal West, Manipur-795001.
4. The Managing Director, Manipur State Power Distribution
Company Ltd., Manipur through its Managing Director,
MSPDCL, office at 3rd Floor, New Directorate Building near 2nd
MR Gate, Imphal-Dimapur Road, P.O. & P.S. Imphal, Imphal
West, Manipur-795001
... Principal Respondents
5. Manipur Public Service Commission through its Secretary, MPSC, office at North AOC, DM Road, P.O. & P.S. Imphal, Imphal West, Manipur-795001.
... Proforma Respondent
6. Shri Soram Priyananda Singh, aged about 56 years old, s/o(L) S. Ibotombi Singh, Nagamapal Chungkham Leirak, P.O. Lamphel, P.S. Imphal, Imphal West, Manipur.
7. Shri N. Jasobanta Singh aged about 56 years old, S/o N. Joy Singh of Keishampat Mutum Leirak, P.O. & P.S. Imphal, Imphal West District, Manipur.
8. Shri Th. Bimol Singh aged about 49 years old, S/o (L) Th. Dwajamani Singh of Ward No. 3 of Ningthoukhong, P.O. & P.S. Bishnupur District, Manipur.
Impleaded as Party Respondents 6, 7 & 8 in the present writ petition vide order dated 09.12.2020 passed in MC(WP(C)) 196 of 2020
9. Shri Heikrujam Debeswar Singh, aged about 48 years old, S/o (L) H. Ibohal Singh of Porompat Thawanthaba Leikai, P.O. & P.S. Porompat, Imphal, Imphal East District, Manipur.
10. Shri Keisham Jayantakumar Singh, aged about 55 years old, S/o (L) K. Udhop Singh of Haobam Marak Irom Leikai, P.O. Canchipur & P.S. Singjamei, Imphal West District, Manipur.
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 3 of 63
11. Shri Ngashepam Kirankumar Singh, aged about 51 years old, S/o Ng. Kesho Singh of Khurai Thangjam Leikai, P.O. Lamlong & P.S. Porompat, Imphal East District, Manipur.
12. Shri N. Samarendra Singh, aged about 50 years old, S/o (L) N. Khelchandra Singh of Lilong Chajing Mamang Leikai, P.O. Lilong Bazar & P.S. Singjamei, Imphal West District, Manipur.
13. Shri Khumukcham Davidkumar Singh, aged about 46 years old, S/o Kh. Nimai Singh of Thangmeiband Kabrabam Leikai, DM College Gate, P.O. & P.S. Imphal, Imphal West District, Manipur.
14. Md. Riyajuddin Khan, aged about 47 years old, S/o (L) Mlv. Abdul Quadis of Lilong Turel Ahanbi, P.O. & P.S. Lilong, Thoubal District, Manipur.
15. Sapam Surendro Singh, aged about 57 years old, S/o S. Jila Singh of Khurai Chingangbam Leikai, P.O. Lamlong & P.S. Porompat, Imphal East District, Manipur.
16. Akhoijam Robindro Singh, aged about 44 years old, S/o Ak. Irabot Singh of Wangkhei Koijam Keikai Leikai, P.O. & P.S. Porompat, Imphal East District, Manipur.
17. Khuraijam Gokulchandra Singh, aged about 59 years old, S/o (L) Kh. Chaoba Singh of Pishum Ningom Leirak, P.O. Imphal & P.S. Singjamei, Imphal West District, Manipur.
18. Shri Khongbantabam Dorendro Singh, aged about 57 years old, S/o K. Nongthonba Singh of Mayang Imphal Thana Wangkhei Leikai, P.O. & P.S. Mayang Imphal, Imphal West District, Manipur.
19. Taruba Thingom, aged about 48 years old, S/o (L) Th. Ibochouba of Yaishkul Hiruhanba K. Nongthonba Singh of Mayang Imphal Thana WLeikainghei Leikai, P.O. & P.S. Imphal, Imphal West District, Manipur.
20. Irom Saratchandra Singh, aged about 45 years old, S/o I. Nabachandra Singh of Lilong Chajing Bazar, P.O. Lilong & P.S. Singjamei, Imphal West District, Manipur.
21. Laishram Joykumar Singh, aged about 59 years old, S/o (L) L. Chaoba Singh of Nambol Laitonjam Makha, P.O. & P.S. Nambol, Bishnupur District, Manipur.
22. Angom Priyoranjan Singh, aged about 52 years old, S/o (L) A. Kullachandra Singh of Keishampat Keisham Leikai, P.O. & P.S. Imphal, Imphal West District, Manipur.
23. Laipubam Sarojkumar Sharma, aged about 54 years old, S/o (L) L. Gourabidhu Sharma of Brahmapur Laipubam Leikai, P.O. & P.S. Porompat, Imphal East District, Manipur.
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 4 of 63
24. Kshetrimayum Menon Singh, aged about 57 years old, S/o (L) Ksh. Pishak Singh of Khongman Zone (V) East, P.O. Imphal & P.S. Irilbung, Imphal East District, Manipur.
25. Robin Maisnam, aged about 47 years old, S/o M. Ibotombi Singh of Chingamakha Kongkham Leirak, P.O. & P.S. Singjamei, Imphal West District, Manipur.
Impleaded as Party Respondents 9 to 25 in the present writ petition vide order dated 09.12.2020 passed in MC(W.P.(C)) 197 of 2020 With 2. WP(C) No. 609 of 2020
1. Victor Duidang, aged about 54 years, S/o (L) Ningprang Duidang, a resident of Nagarm Block-A, P.O. & P.S. Imphal, Imphal West District, Manipur, now working as Assistant Engineer (Elect), Electricity Department, Manipur, deputed to MSPDCL as Manager, MSPDCL.
2. Phanjoubam Uma Singh, aged about 55 years, S/o (L) Kh. Bira Singh, a resident of Andro Machengpat Leikai, P.O. Yairipok & P.S. Andro, Imphal East District, Manipur, now working as Assistant Engineer (Elect), Electricity Department, Manipur, deputed to MSPDCL as Manager, MSPDCL.
3. Khoirom Tarunkumar Meitei, aged about 53 years, S/o (L) Kh. Ibocha Singh, a resident of Khurai Ahongei Leikai, P.O. Lamlong & P.S. Porompat, District Imphal East, Manipur, now working as Assistant Engineer (Elect), Electricity Department, Manipur, deputed to MSPDCL as Manager, MSPDCL.
4. Laishram Badankumar Singh, aged about 57 years, S/o (L) L. Ibomcha Singh of Wangkhei Koijam Leikai, P.O. & P.S. Porompat, Imphal East District, Manipur, now working as Assistant Engineer (Elect), Electricity Department, Manipur, deputed to MSPDCL as Manager, MSPDCL.
5. Hawaibam Jiten Singh, aged about 52 years, S/o (L) H. Dhanabir Singh of Brahmapur Nahabam, P.O. & P.S. Porompat, Imphal East District, Manipur, now working as Assistant Engineer (Elect), Electricity Department, Manipur, deputed to MSPDCL as Manager, MSPDCL.
... Petitioners
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 5 of 63
-Versus-
1. The State of Manipur represented by the Commissioner/ Secretary (Power), Govt. of Manipur, Imphal Secretariat, Babupara, P.O. & P.S. Imphal, Imphal West, Manipur-795001.
2. The Commissioner/Secretary (DP), Govt. of Manipur, Imphal Secretariat, Babupara, P.O. & P.S. Imphal, Imphal West, Manipur-795001.
3. The Manipur State Power Company Limited, Manipur through its Managing Director, MSPCL, office at Keishampat, P.O. & P.S Imphal, Imphal West, Manipur-795001.
4. The Manipur State Power Distribution Company Ltd., Manipur through its Managing Director, MSPDCL, office at 3rd Floor, New Directorate Building near 2nd MR Gate, Imphal-Dimapur Road, P.O. & P.S. Imphal, Imphal West, Manipur-795001
5. The Administrative Officer (AO), Electricity Department, Government of Manipur, office at Keishampat, P.O. & P.S. Imphal, Imphal West, Manipur-795001.
... Principal Respondents
6. Manipur Public Service Commission through its Secretary, MPSC, office at North AOC, DM Road, P.O. & P.S. Imphal, Imphal West, Manipur-795001.
7. Shri Kshetrimayum Menon Singh, aged about 57 years, S/o (L) Ksh. Pishak Singh of Khongman Zone (V) East, P.S. Irilbung, P.O. Imphal & P.S. Irilbung, Imphal East District, Manipur, now working as Assistant Engineer (Elect), Electricity Department, Manipur, deputed to SCD-I, MSPCL as Manager.
8. Shri Akhoijam Robindro Singh, aged about 44 years old, S/o Ak. Irabot Singh of Wangkhei Koijam Keikai Leikai, P.O. & P.S. Porompat, Imphal East District, Manipur, now working as Assistant Engineer (Elect), Electricity Department, Manipur, deputed to SCD-III, MSPCL as Manager.
9. Shri Irom Saratchandra Singh, aged about 45 years old, S/o I. Nabachandra Singh of Lilong Chajing Bazar, P.O. Lilong & P.S. Singjamei, Imphal West District, Manipur, now working as Assistant Engineer (Elect), Electricity Department, Manipur, deputed to Corporate office, MSPDCL as Manager.
10. Shri Angom Priyoranjan Singh, aged about 52 years old, S/o (L) A. Kullachandra Singh of Keishampat Keisham Leikai, P.O. & P.S. Imphal, Imphal West District, Manipur, now working as Assistant Engineer (Elect), Electricity Department, Manipur, deputed to Corporate Office, MSPDCL as Manager.
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 6 of 63
11. Shri Robin Maisnam, aged about 47 years old, S/o M. Ibotombi Singh of Chingamakha Kongkham Leirak, P.O. & P.S. Singjamei, Imphal West District, Manipur, now working as Assistant Engineer (Elect), Electricity Department, Manipur, deputed to Work Shop & Testing Division, MSPDCL as Manager..
Impleaded as Party Respondents 7 to 11 in the present writ petition vide order dated 09.12.2020 passed in MC(WP(C)) 208 of 2020 ... Proforma Respondent With 3. WP(C) No. 622 of 2020
1. Shri Lairenlakpam Poireiton Meitei, aged about 29 years, S/o L. Bipin Meitei, a resident of Lilong Chajing Mamang Leikai, P.O. Lilong & P.S. Singjamei, District Imphal West, Manipur - 795130, working as Manager (Elect), MSPDCL.
2. Moirangthem Shrikanta Singh, aged about 29 years, S/o (Late) M. Mangi Singh, a resident of Tentha Khunou Maning Leikai, P.O. Wangjing & P.S. Khongjom, District Thoubal, Manipur - 795148, working as Manager (Elect), MSPDCL.
3. Shijagurumayum Santosh Sharma, aged about 33 years, S/o Sh. Sanakhomba Sharma, a resident of Kangla Siphai, P.O. Lamlong & P.S. Lamlai, District Imphal East, Manipur - 795010, working as Manager (Elect), MSPDCL.
4. Usham Rocky Singh, aged about 29 years, S/o (Late) U. Kumar Singh, a resident of Khundrakpam Awang Leikai, P.O. Pangei & P.S. Heingang, District Imphal East, Manipur - 795114, working as Manager (Elect), MSPDCL.
5. Rajkumar Robinson Singh, aged about 33 years, S/o R.K. Shurachandra Singh, a resident of Mairembam Leikai Sendra Road, P.O. & P.S. Moirang, District Bishnupur, Manipur - 795133, working as Manager (Elect), MSPDCL.
6. Konthoujam Binoy Singh, aged about 32 years, S/o Poiroukhonjin, P.O. & P.S. Yairipok, Imphal East District, Manipur, working as Manager (Elect), MSPDCL.
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 7 of 63
7. Nakambam Pritam Singh, aged about 28 years, S/o Nakabam Rajdhon Singh, a resident of Chingmeirong Maning Leikai, P.O. Imphal & P.S. Lamphel, Manipur, working as Manager (Elect), MSPDCL.
8. Kapuipii Paul, aged about 28 years, S/o Pungding A of Tumuyon Khullen Village, P.O. & P.S. Senapati, Senapati District, Manipur, working as Manager (Elect), MSPDCL.
9. Khuveio David, aged about 27 years, S/o David Puni of Saranamai Village, Paomata Block, P.O. & P.S. Tadubi, Senapati District, Manipur, working as Manager (Elect), MSPDCL.
10. Ngamboi Vaiphei Baite, aged about 30 years, S/o Thothang Vaiphei Baite of Terakhong Village, Tinseed road, P.O. Porompat & P.S. Lamlao, Imphal East District, Manipur, working as Manager (Elect), MSPDCL.
... Petitioners
-Versus-
1. The State of Manipur represented by the Commissioner/ Secretary (Power), Govt. of Manipur, Imphal Secretariat, Babupara, P.O. & P.S. Imphal, Imphal West, Manipur-795001.
2. The Commissioner/Secretary (DP), Govt. of Manipur, Imphal Secretariat, Babupara, P.O. & P.S. Imphal, Imphal West, Manipur-795001.
3. The Manipur State Power Company Limited, Manipur through its Managing Director, MSPC Ltd., office at Keishampat Junction, P.O. & P.S Imphal, Imphal West, Manipur-795001.
4. The Manipur State Power Distribution Company Ltd., Manipur through its Managing Director, MSPDCL, office at 3rd Floor, New Directorate Building near 2nd MR Gate, Imphal-Dimapur Road, P.O. & P.S. Imphal, Imphal West, Manipur-795001 ... Principal Respondents
5. Manipur Public Service Commission through its Secretary, MPSC, office at North AOC, DM Road, P.O. & P.S. Imphal, Imphal West, Manipur-795001.
... Proforma Respondent
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 8 of 63
B E F O R E
HON'BLE MR. JUSTICE KH. NOBIN SINGH
For the petitioners ∷ Shri M. Hemchandra, Sr. Advocate
For the respondents ∷ Shri N. Kumarjit, AG
Shri H.S. Paonam, Sr. Advocate
Shri Kh. Samarjit, Advocate
Date of Hearing ∷ 22-01-2021
Date of Judgment & Order ∷ 05-02-2021
JUDGMENT & ORDER
[1] Heard Shri M.Hemchandra, learned Senior Advocate appearing
for the petitioners; Shri N. Kumarjit, learned AG for the State respondents; Shri H.S. Paonam, learned Senior Advocate for some of the private respondents and Shri Kh. Samarjit, learned Advocate for some of the respondents.
[2] Since the above writ petitions have arisen out of similar set of facts, the same are considered and disposed of by this common judgment and order.
WP(C) No.559 of 2020 [3.1] By the instant writ petition, the petitioners have prayed for issuing a writ of mandamus or any other appropriate writ to direct the respondents to execute/ implement Clause 5(9)(d) of the Manipur State Electricity Reforms Transfer Scheme, 2013 (hereinafter referred to as "the Transfer Scheme, 2013") and also to direct the respondents to frame/ formulate Rules & Regulations on service conditions focusing on promotional avenues to the next higher post of the Deputy General W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 9 of 63Manager (Elect.), General Manager (Elect.), Executive Director etc. in MSPCL/ MSPDCL in accordance with law.
[3.2] Facts and circumstances as narrated in the writ petition, in short, are that the Addl. Secretary, Manipur Public Service Commission (hereinafter referred to as "the MPSC") issued an advertisement dated 02- 12-2015 inviting applications for direct recruitment to some posts of Engineer in the Engineering Departments, Government of Manipur. The petitioners applied for 10 (ten) posts of the Manager (Elect.) which is equivalent to the post of Assistant Engineer in the Electricity Department, Manipur. A merit list of 24 candidates for the direct recruitment to the post of Manager (Elect.) in the MSPDCL/MSPDL, Manipur dated 01-05-2016 was issued by the MPSC on the basis of the written examination held from 05-01-2016 to 07-01-2016 and the personality test held on 01-05-2016. The petitioners were appointed as the Managers (Elect.) in MSPDCL vide order dated 04-06-2016 pursuant to the approval conveyed by the State Government vide its letter dated 01-06-2016. On the recommendation of the MPSC in its meeting held on 01-05-2016, Shri Nakambam Pritam Singh, one of the petitioners herein, was appointed as the Manager (Elect.) vide order dated 08-02-2019 issued by the Executive Director (HR/ Admn/ IT/ Legal), the MSPDCL.
[3.3] A Memorandum dated 23-12-2013 was placed before the Cabinet for consideration and approval as regards the unbundling and corporatization of the Electricity Department, Government of Manipur W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 10 of 63through a Transfer Scheme and related matters thereto. As per the decision of the Government of Manipur to unbundle and corporatize the Electricity Department, Government of Manipur into two State owned functionally independent entities viz. (a) Manipur State Power Company Limited (hereinafter referred as "the MSPCL") as the Holding Company to discharge the functions of the State Transmission and Generation Utility and (b) Manipur State Power Distribution Company Limited (hereinafter referred to as "the MSPDCL") as the deemed distribution licensee/ Distribution Company with effect from the 01-02-2014 in terms of Section 131 and 133 and other applicable provisions of the Electricity Act, 2003. The Transfer Scheme, 2013 came to be notified on 31-12-2013 and pursuant thereto, all the employees of the Electricity Department, Manipur were placed on deputation en mass either at the MSPCL or the MSPDCL with effect from 01-02-2014 except for the two employees/ officers posted specifically vide an order of the State Government retaining in the Electricity Department, Manipur. The Commissioner (Power), Government of Manipur issued an order dated 11-09-2014 by which 686 employees of the Electricity department, Manipur were deputed to the MSPCL while 1918 employees were deputed to the MSPDCL on the terms and conditions as laid down in the Transfer Scheme, 2013. Clause 5(9)(d) of the Transfer Scheme, 2013 provides that upon completion of three years from the effective date, the State Government shall provide options to the personnel to be permanently absorbed in the services of the Transferees, whereupon W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 11 of 63such personnel who choose to exercise such option, shall be permanently absorbed in the Transferees.
[3.4] It is worthwhile to mention here that the Department of Personnel & Administrative Reforms (Personnel Division), Government of Manipur issued a notification dated 23-06-1986 making the rules regulating the method of recruitment to the post of Executive Engineer, in Engineering Departments, called "the P.W.D/ I.F.C.D.(including MI Department)/ PHED/ Electricity Department, Manipur [Executive Engineer (Elec/ Mech)/ (Civil/Mech)] Recruitment Rules, 1986 (hereinafter referred to as "the Recruitment Rules, 1986"). The qualifying period of service for promotion to the post of Executive Engineer (Elect) are:
(i) In the case of Degree Holders, 6 years
(ii) In the case of Diploma Holders, 9 years
iii) ..................
iv) ...................... etc.
[3.5] Instead of executing Clause 5(9)(d) of the Transfer Scheme,
2013 formulated under Section 131 & 133 and other applicable provisions of the Electricity Act, 2003, the State Government issued a Notification dated 08-01-2018 ordering the relaxation of the provisions contained in Column 11 of the Recruitment Rules, 1986 with respect to qualifying period of service for promotion to the post of the Executive Engineer (Elect) as one time relaxation which was valid till 31-03-2018. Immediately thereafter, the Under Secretary (Power), Government of Manipur issued an order dated 30-01-2018 appointing twenty-two Assistant Engineers (Elect) on W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 12 of 63promotion to the post of the Executive Engineer (Elect), Electricity Department, Manipur on the basis of one time relaxation. Consequent upon their promotion, the Managing Director, the MSPDCL issued an order dated 24-04-2018 designating thirteen personnel who are on deputation from the Electricity Department, Manipur, as the Deputy General Manager, MSPDCL with immediate effect until further orders and in public interest. Similarly, the Department of Personnel & Administrative Reforms (Personnel Division), Government of Manipur issued a notification dated 25-02-2019 thereby relaxing the provisions contained in Column 11 of the Recruitment Rules, 1986 with respect to qualifying period of service for promotion to the post of Executive Engineer (Elect) as one time relaxation which was valid upto 3(three) months from the date of notification. Thereafter, the Under Secretary (Power), Government of Manipur issued an order dated 27-02-2019 appointing four Assistant Engineers (Elect) on promotion to the post of the Executive Engineer (Elect), Electricity Department, Manipur.
[3.6] The Department of Personnel & Administrative Reforms (Personnel Division), Government of Manipur issued a Notification dated 24-02-2018 relaxing the provisions contained in Column 10 of the Recruitment Rules, 1986 regarding the method of recruitment for the post of Assistant Engineer (Civil/Elect) as "100% by promotion" in place of "60% by promotion" as one-time relaxation which was valid till 31-03-2018. The Under Secretary, Government of Manipur issued an order dated 27-02- 2018 appointing forty-two Section Officer Grade-I (Elect) on promotion to W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 13 of 63the post of the Assistant Engineer (Elect) in the Electricity Department, Manipur with immediate effect on one-time measure. In this manner, instead of implementing Clause 5(9)(d) of the Transfer Scheme, 2013 formulated under Section 131 and 133 and other applicable provisions of the Electricity Act, 2003 to the effect of absorption or rationalization or repatriation of the employees of the Electricity Department, Manipur deputed to MSPCL/MSPDCL, the State Government issued notification after notification thereby giving promotion to the employees of the Electricity Department, Manipur deputed to the MSPCL/MSPDCL from Section officer Grade-I(Elect) to the Assistant Engineers (Elect) and also from the Assistant Engineers (Elect) to the Executive Engineer (Elect) by granting relaxation of the provisions contained in Column 11 of the Recruitment Rules, 1986 with respect to qualifying period of service for promotion to the post of the Executive Engineer (Elect) as one-time measure and also with respect to method of recruitment for promotion to the post of the Assistant Engineer (Civil/Elect) thereby giving preferential treatment to the staffs of the Electricity Department, Manipur working on deputation in MSPDCL which is, prima facie, arbitrary, mala fide, ulterior motives, colourable exercise of power, extraneous consideration, non application of mind, unequal treatment amongst the equals being violative of Article 14 & 16 of the Constitution of India, thereby continuously obstructing the service up-gradation/ promotion of the Managers (Elect) who are appointed directly in the MSPDCL, to the post of the Deputy General Manager (Elect), to the General Manager (Elect), to the Executive W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 14 of 63Director etc. in the MSPDCL. The State Government has not framed till date, Rules and Regulations with regard to service conditions for promotion of the petitioners to the next higher post of the Deputy General Manager (Elect), the General Manager (Elect), the Executive Director etc. in the MSPCL/MSPDCL. The total number of sanctioned posts are seven posts in respect of the General Manager (Elect), twenty eight posts in respect of the Deputy General Manager (Elect) and eighty two posts in respect of the Manager (Elect) created for the MSPCL/MSPDCL and the aforesaid sanctioned posts on different capacities are being filled up from amongst the employees of the Electricity Department, Manipur, who are now working in MSPDCL on deputation, by giving relaxation of the provisions contained in Column 11 of the Recruitment Rules, 1986 with respect to qualifying period of service for promotion to the post of the Executive Engineer (Elect) and also with respect to method of recruitment for promotion to the post of the Assistant Engineer (Civil/Elect) as "100% by promotion" in place of "60% by promotion" as one-time measures arbitrarily by the State Government, ignoring/ overlooking the cases of the employees appointed directly in the MSPCL/MSPDCL. [3.7] Being aggrieved by the aforesaid actions of the State respondents, the instant writ petitions have been filed by the petitioners on the inter-alia grounds that the actions of the State respondents granting promotion to the employees of the Electricity Department, Manipur by way of relaxation of the Recruitment Rules, 1986 are arbitrary, illegal, malafide, preferential treatment, extraneous consideration, unequal treatment W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 15 of 63amongst the equals being violative of Article 14 & 16 of the Constitution of India; that the rights of the petitioners to be considered for promotion to next higher posts which are fundamental rights enshrined under the Constitution of India, have been curtailed and shall become doom forever, when the State Government has considered the appointment by promotion to the post of the Deputy General Manager (Elect), MSPDCL from amongst the Assistant Engineers of the Electricity Department, Manipur who are now working in the MSPDCL on deputation. The State Government keeps on making appointments on promotion by way of relaxation of the Recruitment Rule to the employees of the Electricity Department, Manipur on one-time relaxation basis without showing any concern towards the employees of the MSPCL/MSPDCL. Since none of the 23 Managers (Elect) who were directly appointed vide orders dated 30-10-2014, was given promotion to the post of Deputy General Manager (Elect), the same fate would be faced by the petitioners.
[4.1] The stand of the State Government as indicated in the affidavit filed on behalf of the respondent No.1 is that the promotions given from Section Officer Grade-I to the Assistant Engineer (Elect) and also from Assistant Engineer (Elect) to Executive Engineer (Elect) were done by relaxation of the recruitment rules as one-time measure as per the decision of the State Cabinet and therefore, the petitioners may not have any grievance against the decision. The State Government shall consider the absorption policy as and when financial conditions of the State Government improve as there will be huge financial involvement in the W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 16 of 63State. The MSPCL/MSPDCL are purely Government owned companies and as such, the State Government may take decision from time to time in consideration of the urgency and in the interest of public. The MSPCL has its own Human Resources Policy, Chapter 7 of which deals with the career progression of the staff and it is broadly divided into eight tables for eligibility criterion for promotion to different posts. Hence, the allegation that the State Government has not framed, till date, any rules & regulations with regard to their service conditions, is denied as incorrect and as such, this Court may be pleased to reject the same. There is no question of taking advantages in giving promotion to the employees of the Electricity Department, Manipur who are deputed to the MSPCL/MSPDCL as the promotion was and shall be done against the available sanctioned posts reserved for the deputed personnel.
[4.2] On allowing the applications being MC[WP(C)] No.196 of 2020 and MC[WP(C)] No.197 of 2020 vide order dated 09-12-2020 passed by this Court, the applicants therein have been impleaded as party respondents. No counter affidavit has been filed on their behalf in the matter for the reason that on 09-12-2020 itself, this Court had allowed the prayer made by their counsel to the effect that the averments made in the said applications would be treated as that of the counter affidavit. The stand taken by them therein is that there is no discrimination as regards the appointment on promotion between the employees of the Electricity Department, Manipur on the one hand and that of the MSPCL/MSPDCL on the other hand in as much as the promotions are made against the posts W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 17 of 63meant for them. As many as 31 persons were appointed as the Deputy Manager (Elect) in the MSPCL vide order dated 05-01-2015 issued by the Managing Director, MSPCL, out of which nine were given promotion to the post of Manager (Elect) vide order dated 31-12-2019. In addition to that, Shri Usham Rocky Singh and the petitioner No.4 who were appointed as the Manager (Elect), were given promotion to the post of the Deputy General Manager on in-charge basis vide order dated 02-11-2019. WP(C) No. 609 of 2020 [5.1] By the instant writ petition, the petitioners have prayed for issuing a writ of certiorari or any other appropriate writ to quash and set aside the impugned process of one time relaxation of qualifying year of service for appointment by promotion to the post of Executive Engineer (Elect), Electricity Department, Manipur; to set aside the qualifying period of service in respect of the Assistant Engineer (Elect) having Diploma in Electrical Engineering in the proposed relaxation and also to issue a writ of mandamus or any other appropriate writ to direct the respondents to review/re-consider the said impugned process.
[5.2] On the recommendation of a DPC meeting held on 14-12-2006 and the approval of the State Government being conveyed on 19-12-2006, the petitioners who are Diploma in electrical engineering, along with 163 others, were appointed on promotion to the post of Section Officer Grade-I on regular basis vide order dated 22-12-2006 issued by the Chief Engineer, Power, Manipur. After they having served for more than 10 W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 18 of 63years, the petitioner No.1 along with 12 others Section Officer Grade-I (Elect), Electricity Department, Manipur were appointed on promotion to the post of Assistant Engineer (Elect), Electricity Department, Manipur vide order dated 31-07-2017, followed by an order dated 27-02-2018 by which the petitioner Nos. 2, 3, 4 & 5 along with some other Section Officer Grade- I (Elect), Electricity Department, Manipur were appointed on promotion to the post of Assistant Engineer (Elect), Electricity Department, Manipur. Thereafter, consequent upon their promotion as the Assistant Engineer (Elect), they were designated as the Manager, MSPDCL vide order dated 24-04-2018 issued by the Managing Director, MSPDCL. In the seniority list of the Assistant Engineer (Elect), Electricity Department, Manipur as on 01- 10-2020, the petitioner Nos. 1, 2, 3, 4 & 5 appeared at Sl. No. 4, 9, 10, 29 and 32 respectively.
[5.3] As per the Recruitment Rules, 1986, the Assistant Engineer(s) with Diploma holders were eligible for promotion to the post of Executive Engineer (Elect) after they having served for 9 (nine) years. After the Recruitment Rules, 1986 being relaxed as regards the Column 11 vide Notification dated 08-01-2018, 22 (twenty-two) Assistant Engineers (Elect) were appointed on promotion to the post of Executive Engineer (Elect), Electricity Department, Manipur on the basis of one-time relaxation which was valid till 31-03-2018 vide order dated 30-01-2018 issued by the Under Secretary (Power), Government of Manipur. In the same manner, after the Recruitment Rules, 1986 being relaxed again vide Notification dated 25-02- 2019, 4 (four) Assistant Engineers (Elect) were appointed on promotion to W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 19 of 63the post of Executive Engineer (Elect), Electricity Department, Manipur vide order dated 27-02-2019 issued by the Under Secretary (Power), Government of Manipur. Thus, the State Government issued notification after notification for the relaxation of the Recruitment Rules, 1986 thereby granting promotions to the post of the Executive Engineer (Elect) from the post of the Assistant engineers (Elect) as one time measure. [5.4] To their shock and surprise and as has been done earlier, a process has been initiated vide Memorandum of Cabinet with the approval being granted by the State Government for consideration of appointment by promotion to the post of Executive Engineer (Elect) from amongst the Assistant Engineer (Elect) by granting relaxation of the Recruitment Rules, 1986. The proposed one-time relaxation of the existing Recruitment Rules for the post of Executive Engineer (Elect) in terms of period of regular service in the grade which has been cleared by the State Cabinet and awaits the administrative approval/ Notification, is reproduced herein below:
Sl. Name of Existin Proposed Relaxation No. the post g RRs
3. EE(Elect) Para 7 (a)An Officer having served more than above 12(twelve) years of regular service in the Grades of Section Officer-I (elect) and Assistant Engineer(Elect) taken together out of which a minimum of 2(two) years regular service in the Grade of Assistant Engineer (Elect) and possessing Degree/AMIE in Electrical Engineering may be appointed by promotion in the vacant post of Executive Engineer (Elect) through normal process of DPC in association with the Manipur Public Service Commission.''
(b) An Officer having served more than 20(twenty) years of regular service in the Grades of Section Officer-I (Elect) and Assistant W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 20 of 63
Engineer (Elect) taken together out of which a minimum of 5(five) years regular service in the Grade of Assistant Engineer (Elect) and possessing Diploma in Electrical Engineering may be appointed by promotion in the vacant posts of Executive Engineer (Elect) through normal process of DPC in association with the Manipur Public Service Commission.
[5.5] Being aggrieved by the said proposed one-time relaxation of the existing Recruitment Rules for the post of the Executive Engineer (Elect), the instant writ petition has been filed by the petitioners on the inter-alia grounds that the action of the State Government is mala fides, bias, illegal, extraneous consideration, material irregularities, for the reason that the qualifying period of regular service for appointment by promotion to the post of Executive Engineer (Elect) is 12(twelve) years as the Section Officer-I (Elect) and the Assistant Engineer (Elect) taken together, out of which a minimum of 2 (two) years regular service in the grade of the Assistant Engineer (Elect) in respect of the Assistant Engineer (Elect) having Degree/AMIE in Electrical Engineering. But in respect of the Assistant Engineer (Elect) having Diploma in Electrical Engineering, the qualifying period of regular service is 20 (twenty) years as the Section Officer-I (Elect) and the Assistant Engineer(Elect) taken together, out of which a minimum of 5 (five) years regular service in the grade of the Assistant Engineer (Elect). The ratio as specified in the said proposed one- time relaxation of Recruitment Rules i.e. 12(twelve) years for the Assistant Engineer (Elect) having Degree/AMIE in Electrical Engineering and 20 (twenty) years for the Assistant Engineer (Elect) having Diploma in Electrical Engineering, is not proportionate, taking into consideration of the W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 21 of 63existing Recruitment Rules read with the previous one-time relaxation measures. Moreover, it is also totally an act of misuse, abuse, arbitrary exercise of power, non application of mind, improper, extraneous consideration which is inconsonant with law as has been done in the past. The Convenor, AE Diploma Holder (AE/MSPDCL) Ad-hoc Committee approached the Hon'ble Chief Minister, Manipur by way of a letter dated 16-10-2019 with a prayer for review/ revise the one-time relaxation in the Recruitment Rules. However, no tangible action has been initiated by the State Government, thereby curtailing the right of the Assistant Engineer (Elect) having Diploma in Electrical Engineering, to be considered for promotion to the next higher post. The proposed one-time relaxation of qualifying year of service for appointment by promotion to the post of the Executive Engineer (Elect), Electricity Department, Manipur is absolutely irrational, ridiculous, absurd, unreasonable, inconsistent, illogical, illegal, bias & unsubstantiated to the effect of calculation of ratio, in terms of period of regular service in the grade, taking into consideration of the existing Recruitment Rules of 1986 thereby giving preferential treatment to the Assistant Engineers(Elect) having Degree in Electrical Engineering, working on deputation in the MSPCL/MSPDCL as prima facie, arbitrary, mala fide, ulterior motives, selective discrimination, colourable exercise of power, extraneous consideration, non application of minds, unequal treatment among the equals and smack Article 14 & 16 of the Constitution of India.
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 22 of 63
[6.1] In the affidavit-in-opposition filed on behalf of the State
Government, it has been stated that the petitioners have no any cause of action, as their rights are not affected in any manner. The existence of a legal right is the condition precedent for invoking the writ jurisdiction. Hence, they have no locus standi to file the writ petition. The proposal of one-time relaxation of the recruitment rules is yet to be finalised and as such, their writ petition is premature and not maintainable in law. As per the recruitment rules, the qualifying period of regular service for promotion of Section Officer Grade-I to the Assistant Engineer (Elect) is three years for officers possessing degree/ AMIE, while it is eight years for officers possessing diploma. Similarly, the qualifying period of regular service for promotion from the Assistant Engineer (Elect) to the Executive Engineer (Elect) is six years for the officers possessing degree/ AMIE, while it is nine years for the officers possessing diploma. Thus, the resultant length of service required for promotion from the Section Officer Grade-I to the Executive Engineer (Elect) is nine years and seventeen years for the officers possessing degree/ AMIE and diploma respectively. What has now been proposed is that the resultant length of service required for promotion from the Section Officer Grade-I to the Executive Engineer (Elect) is twelve years and twenty years for the officers possessing degree/ AMIE and diploma respectively. The said proposal has been made proportionately and equally without any discrimination. The relaxation of the recruitment rules can only be in the period of regular service in the post of the Section Officer Grade-I and the Assistant Engineer taken together. Even if the W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 23 of 63period of regular service is reduced from twenty years to eighteen years, the petitioners would not still be eligible for consideration for promotion for the reason that they were appointed as the Section Officer Grade-I vide order dated 22-12-2006 and the Assistant Engineer vide orders dated 31- 07-2017 and 27-02-2018. Moreover, since it is only a proposal, the question of reviewing/ reconsideration does not arise. They are not similarly situated with that of the petitioners in WP(C) No. 559 of 2020. [6.2] In their additional affidavits filed by the petitioners, it has been prayed that the letter dated 18-11-2020 which could not inadvertently be filed by them along with the writ petition and the notification dated 02-01- 2021 issued during the pendency of the writ petition, be treated as part of the writ petition. In their rejoinder affidavit, it has been submitted that as a consequential action to the process of one-time relaxation of the qualifying year of service, the Notification dated 02-01-2021 was issued ordering relaxation of the provision contained in Column 11 of the recruitment rules for the post of the Executive Engineer (Elect) in the Electricity Department, Manipur as one-time measure which is arbitrary favouring the Assistant Engineering (Elect) with degree in engineering. It has further been submitted that the prayers in the writ petition were for quashing the process and its consequential orders/ Notifications etc. issued pursuant to the said one-time relaxation of the existing recruitment rules. WP(C) No. 622 of 2020
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 24 of 63
[7.1] By the instant writ petition, the petitioners have prayed for
issuing a writ of Certiorari or any other appropriate writ to quash and set aside the impugned letter dated 18-11-2020 in respect of 34 (thirty-four) posts of the Executive Engineer (Elect/Civil) with a prayer to modify/ review it and also to issue a writ of Mandamus or any other appropriate writ to direct the respondents to publish a combined seniority list of the Manager (Elect), appointed directly in the MSPCL/MSPDCL and the Assistant Engineer (Elect), Electricity, Manipur deputed/ absorbed/ transferred to the MSPCL/MSPDCL.
[7.2] When the writ petition being WP(C) No. 559 of 2020 was taken up for consideration on 03-11-2020, this Court while issuing notice to the respondents was pleased to pass an interim order which reads as under:
"By way of interim, it is directed that no further promotion shall be made from the post of Assistant Engineer (Elect) to Executive Engineer (Elect) and from the post of Executive Engineer (Elect) to Superintending Engineer (Elect) in the Electricity Department, Manipur without the leave of this Court."
In spite of the fact that the State respondents were aware of the said order passed by this Court, the Under Secretary (Power), Government of Manipur, in total disregard of the interim order dated 03-11-2020, issued the letter dated 18-11-2020 conveying the approval of the State Government to earmark various categories of posts of the MSPCL/ MSPDCL and the same was issued with the approval of the Cabinet in its meeting held on 15-10-2020, concurred by the DP vide U.O. dated 10-11-
W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 25 of 632020, in order to frustrate/ make the pending case being WP (C) No.559 of 2020 filed by the present petitioners as infructuous. [7.3] From the perusal of the tabulation, it is an undisputed fact that the total number of sanctioned posts in respect of the Executive Engineer (Elect) and the Deputy General Manager are 35+57=92 posts as earmarked vide letter dated 18-11-2020. The total sanctioned posts of the Deputy General Manager of the MSPDCL/MSPCL are not actually workout and not enjoyed by the feeder post of the Manager (Elect) appointed directly in the MSPDCL/MSPCL. It is prima facie seen that the total number of sanctioned posts of the Executive Engineer (Elect) in the Electricity Department, Manipur are 35 posts, out of which 21 posts are reserved for the deputed personnel in the MSPDCL; 13 posts are reserved for the deputed personnel in the MSPCL and one post of the Executive Engineer (Elect) is retained in the Electricity Department, Manipur. Similarly, the total number of sanctioned posts of the Deputy General Manager in the MSPCL/MSPDCL are 57 posts out of which 33 posts are earmarked for the MSPDCL and 24 posts are earmarked for the MSPCL. However, only 23 posts out of 57 sanctioned posts in respect of the Deputy General Manager, have been actually earmarked for the MSPDCL/MSPCL recruited personnel and the remaining 34 sanctioned posts of the Deputy General Manager have been compromised and adjusted as the sanctioned posts for the Electricity Department, Manipur without any justification and proper reason and the yardstick used in earmarking the same is highly illegal, improper, irregular, arbitrary, malafides, extraneous consideration, non W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 26 of 63application of mind, full of bias, favouritism, nepotism and bad in law and therefore, the letter dated 18-11-2020 has no legs to stand before the eyes of law and the same is liable to be quashed and set-aside. From the applications being MC[WP(C)] No. 201 of 2020 and MC[(WP(C)] No.202 of 2020 filed by some of the Engineers/Employees of the Electricity Department, Manipur, the employees appear to have been promoted from the sanctioned posts and not from that of the companies. However, the letter dated 18-11-2020 is very clear to the effect that 34 sanctioned posts of the MSPCL/MSPDCL have been occupied by the employees of the Electricity Department, Manipur without any justification. Both are contradictory to each other. In the reply to an application under RTI on 16- 06-2020, it is stated that the number of posts for the post of the Deputy General Manager (Elect) in the MSPDCL is 28 (twenty eight) whereas the vacancy position in the post of the Deputy General Manager (Elect) is shown as 19 (nineteen) only and from this, it is clear that 9(nine) posts are already filled up by the employees of the Electricity Department, Manipur, since no promotion has been made to the post of the Deputy General Manager (Elect) from the employees of the MSPCL/MSPDCL. Being aggrieved by the said letter dated 18-11-2020 issued by the Under Secretary (Power), Government of Manipur, the instant writ petition has been filed by the petitioners on the inter-alia grounds that the said letter dated 18-11-2020 was issued in order to accommodate the Assistant Engineer (Elect), Electricity Department, Manipur who are junior to the petitioners by giving relaxation of the provisions contained in Column 11 of W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 27 of 63the Recruitment Rules, 1986 with respect to the qualifying year of service for promotion to the post of the Executive Engineer (Elect). The 23 (twenty three) Managers (Elect) appointed directly in the MSPDCL/MSPCL vide order dated 30-10-2014 issued by the Executive Director (HR/Admin), MSPDCL are now qualified and eligible for consideration of appointment as the Deputy General Manager. The clear vacant posts of the Deputy General Manager (Elect) in the MSPDCL/MSPCL could be filled up from amongst the eligible 23 Managers (Elect) and there is no exigency/ need to relax the qualifying years of service as mentioned in the Recruitment Rules, 1986. The number of employees of the MSPDCL/MSPCL from the rank of the Assistant Manager to Manager (Elect) who are directly recruited from the company, are 78 (Seventy eight) whereas the number of employees of the Electricity Department, Manipur deputed from the S.O Grade-II to the Assistant Engineer are much lesser than the directly recruited personnel and therefore, the balance of convenience is in favour of the petitioners. The impugned letter dated 18-11-2020 was issued and any consequential orders/ letters/ notifications in pursuant thereto will lead to miscarriage of justice and irreparable injury to the petitioners. [8] In the affidavit-in opposition filed on behalf of the State Government, it has been stated that the petitioners are young, aged about 30 years and have several years of service left in their career. The personnel of the Electricity Department, Manipur in the cadre of the Assistant Engineer and the Executive Engineer have been serving for many years and they are on the verge of retirement. Moreover, there are W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 28 of 63vacancies in the grade of the Executive Engineer and the Superintending Engineer within the quota allotted for them. Hence, in the promotion of these officers in the grade of the Executive Engineer and the Superintending Engineer, no interests of the Managers (Elect) serving in the MSPDCL shall be affected as there are enough vacancies meant for them. Besides this, the petitioners are yet to be eligible for consideration for promotion to higher posts and therefore, they have no locus standi to file the present writ petition. The absorption policy under Clause 5(9)(d) of the Transfer Scheme shall be considered as and when financial conditions of the State improve as there will be huge financial involvement of the State Government. The promotions from the post of the Assistant Engineer (Elect) to the post of the Executive Engineer (Elect) have been made after the relaxation of the recruitment rules as per decision of the State Cabinet in view of the fact that they have been serving for many years and that they are on the verge of retirement. The service conditions of the petitioners who are directly recruited in the MSPDCL are governed by separate human recourse policies which have been approved by the State Government vide letter dated 09-10-2014. The issue of promotion /non-promotion of 23 Managers (Elect) appointed directly in the MSPDCL who are not parties in the writ petition, cannot be raised in the writ petition. There is no question of disregard of the interim order dated 03-11-2020 passed by this Court in WP(C) No.559 of 2020 and moreover, an appeal has been preferred against it. The letter dated 18-11-2020 was issued conveying approval for earmarking various categories of posts in the MSPCL/ MSPDCL for W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 29 of 63ensuring no confusion in the three establishments. A policy decision was taken by the Cabinet in its meeting held on 15-10-2020 for earmarking the posts in the grade of the Assistant Engineer and above in the three establishments in terms of Clause 5(9)(c) of the Transfer Scheme, 2013. The petitioners are to be considered for appointment as the Deputy General Manager against the posts earmarked for them. The allegation that 34 sanctioned posts from MSPCL/MSPDCL have been occupied by the employees of the Electricity Department, Manipur, is baseless. The letter dated 18-11-2020 does not affect the rights and interest of the petitioners at all.
[9] From the pleadings as aforesaid, two issues have arisen for consideration by this Court-one, whether the non-implementation of Clause 5(9)(d) of the Transfer Scheme, 2013 which had come into force on 01-02- 2014, is bad in law and two, if the answer in the first issue is in the affirmative, whether the subsequent actions, taken by the State Government towards the relaxation of the Recruitment Rules, 1986 and the grant of promotions to the personnel of the Electricity Department, Manipur pursuant thereto, are unfair, unreasonable, arbitrary, malafide, discriminatory and illegal being violative of Article 14 of the Constitution of India.
[10.1] It has been submitted by Shri M. Hemchandra, Senior Advocate appearing for the petitioners that although Clause 5(9)(d) of the Transfer Scheme, 2013 provides that upon completion of three years, the State W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 30 of 63Government shall provide option to its personnel to be permanently absorbed in the services of the MSPCL/MSPDCL, the State Government has failed to implement it. The provisions of Clause 5(9)(d) are mandatory for the reason that the word "shall" has been used therein and therefore, in terms of Clause 5(9)(d) thereof, the State Government ought to have implemented it in time so that the personnel of the Electricity Department, Manipur would have been absorbed in the MSPCL/MSPDCL in the year, 2016 and the issues involved herein would not have arisen at all. Without implementing the provisions of Clause 5(9)(d), the act and conduct of the State Government is an arbitrary exercise of power at the whim and caprice and that too, without application of mind. In other words, the actions taken by the State Government towards the relaxation and grant of promotion are arbitrary, malafide and illegal. It has further been submitted by him that the private respondents are junior to the petitioners in the cadre of the Assistant Engineer (Elect)/ Manager as per the Recruitment Rules, 1986 and therefore, the policy decision as claimed by the State Government is illegal, arbitrary being violative of Article 14 and 16 of the Constitution of India. Being fully aware of this Court's order dated 03-11- 2020, the Under Secretary (Power), Government of Manipur wrote a letter dated 18-11-2020 conveying approval of earmarking various categories of posts with the approval of the Cabinet in order to frustrate/ make the writ petition infructuous. The said letter dated 18-11-2020 was issued with a view to accommodate the Assistant Engineers (Elect), Electricity Department, Manipur who are junior to the petitioners by relaxation of the W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 31 of 63recruitment rules which will cause serious prejudice, irreparable loss and injury to the petitioners. The private respondents are not eligible for consideration of appointment on promotion as per the Recruitment Rules, 1986 and there is no need to relax the qualifying year of service to accommodate them. The right to be considered for promotion is a fundamental right and any promotion given to the personnel of the Electricity Department, Manipur by relaxation of the recruitment rules, will prejudice the rights of the petitioners. The continuous grant of relaxation for accommodating the personnel of the Electricity Department, Manipur without implementing Clause 5(9)(d) of the Transfer Scheme, 2013 is highly unfair and unreasonable. In support of his contention, he has relied upon the decisions rendered by the Hon'ble Supreme Court in Municipal Council, Ratlam Vs. Shri Vardichan & ors, (1980) 4 SCC 162; All India Imam Organisation & ors Vs. Union of India & ors, (1993) 3 SCC 584; J.C Yadav & ors Vs. State of Haryana & ors, AIR 1990 SC 857; Keshav Chandra Joshi & ors Vs. Union of India & ors, 1992 Suppl (1) SCC 272; Ajit Singh (II) Vs. State of Punjab & ors, (1999) 7 SCC 209; Suraj Prakash Gupta Vs. State of J & K, (2000) 7 SCC 561; Kapila Hingo Rani Vs. State of Bihar, (2003) 6 SCC1; Secretary, State of Karnatak & ors Vs. Uma Devi & ors, (2006) 4 SCC 1; T.M Sampath & ors Vs. Secretary, Ministry of Water Resources & ors, (2015) 5 SCC 333. [10.2] Combating the submissions of the learned counsel appearing for the petitioners, it has been submitted by Shri N. Kumarjit Singh, learned Advocate General that the Transfer Scheme, 2013 was made in terms of W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 32 of 63the provisions of Section 131 & 133 of the Electricity Act, 2003 but the provisions of Clause 5(9)(d) thereof have not been implemented and they will be implemented as and when the financial conditions of the State Government improve. The Electricity Department, Manipur and the MSPCL/MSPDCL are different legal entities and since the absorption policy has not been implemented, the personnel of the Electricity Department, Manipur did continue to be their employees. Therefore, any action taken by the State Government in respect of their employees will not affect the rights of the petitioners who are governed by the norms of the MSPCL/MSPDCL. The petitioners have no cause action and in other words, they have no locus standi to file the writ petitions which are liable to be dismissed by this Court. The policy decision is taken keeping in mind the fact that the personnel of the Electricity Department, Manipur have been serving for the last many years and are on the verge of retirement, while the petitioners are young and have long years to serve the MSPCL/MSPDCL. Reliance has been placed by him in the decisions rendered by the Hon'ble Supreme Court in State of UP Vs. Choudhury Ram Beer Singh, (2008) 5 SCC 550; Dilip Kumar Garg & ar Vs. State of UP & ors, (2009) 4 SCC 753; Parisons Agrotech (P) Ltd Vs. Union of India & ors, (2015) 9 SCC 657 and Essar Steel Ltd. Vs. Union of India & ors, (2016) 11 SCC 1. The submissions of Shri H.S Paonam, Senior Advocate appearing for some of the private respondents are similar to that of the learned Advocate General and therefore, the same are not referred to herein. However, it has been submitted by him that there is no timeline for the absorption of the W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 33 of 63personnel of the Electricity Department, Manipur as prescribed in the Transfer Scheme, 2013 and the purpose of granting promotion by relaxation of the recruitment rules is that many of the posts are being held by the retired persons engaged on contract basis. In other words, steps are being taken by the State Government to phase out the contract engagement. He has relied upon the decisions rendered by the Hon'ble Supreme Court in Jasbhai Motibhai Desai Vs. Roshan Kumar, Bashir Ahmed, (1976) 1 SCC 671; K.D Sharma Vs. Steel Authority of India & ors, (2008) 12 SCC 481; (2012) 12 SCC 133 and V. Chandrashekharan & anr Vs. Administrative Officer & ors, (2020) 12 SCC 87. Shri Kh. Samarjit, learned Advocate appearing for some of the private respondents submitted that he would adopt the arguments of the learned Advocate General and Shri H. S Paonam, learned Senior Advocate. What he did, was right, as he was required to supplement the arguments and not to repeat the arguments made by them.
[11] Since the counsels appearing for the respondents have raised an objection as regards the maintainability of the writ petitions, this Court deems it appropriate to consider it first. It has been submitted by them that the petitioners are the employees of the MSPCL/MSPDCL who are governed by their norms. The private respondents have continued to be the employees of the Electricity Department, Manipur and are governed by the Recruitment Rules, 1986. The private respondents are being given promotions by relaxation of the said recruitment rules without affecting the rights of the petitioners and therefore, the petitioners have no locus standi W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 34 of 63to file the writ petitions. In support of their contentions, they have relied upon the decisions rendered by the Hon'ble Supreme Court in Dr. N.C Singhal Vs. Union of India & ors, (1980) 3 SCC 29; Scheduled Caste Uplift union & anr Vs. Union of India & ors, 1995 Supp (3) SCC 526; Rajesh Kagra & ors Vs. State of Madhya Pradesh 7 ors, (2010) 12 SCC 139; Jasbhai Motibhai Desai Vs. Rosham Kumar, Haji Bashir Ahmed & ors, (1976) 1 SCC 671 and Shripal Bhatt & anr Vs. State of Uttar Pradesh, (2020) 12 SCC 87. There can be no any dispute as regards the law laid down by the Hon'ble Supreme Court in the above cases but their facts and circumstances are not similar to that of the present case and therefore, the law laid down therein will have no application to the facts of the present case. In the present case, in terms of the provisions of Section 131 & 133 of the Electricity Act, 2003, the Transfer Scheme, 2013 was made on the basis of which the personnel of the Electricity Department, Manipur were/are on deputation to be absorbed permanently as prescribed under Clause 5(9)(d) thereof. The transitory period as prescribed in Clause 5(9)(d) was three years which fell in the year, 2016 and immediately thereafter, the absorption ought to have been completed which the State Government failed to implement it. Had the absorption been done in the year, 2016 itself, the personnel of the Electricity Department, Manipur would have become the employees of the MSPCL/MSPDCL governed by the law applicable to the petitioners. A combined seniority list for every cadre of post could have been prepared in the MSPCL/MSPDCL and the promotions could have been granted to them as per law applicable to W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 35 of 63them. In fact, the personnel of the Electricity Department, Manipur can be said to be the employees of the MSPCL/MSPDCL for all practical purposes except for their absorption which is a mere formality in terms of the Transfer Scheme, 2013 for the reason that they are discharging their duties and functions in the MSPCL/MSPDCL and have been placed under their administrative and disciplinary jurisdiction. The petitioners and the private respondents are similarly situated in the MSPCL/MSPDCL in their respective rank and position under the administrative and disciplinary jurisdiction of the MSPCL/MSPDCL. Both the employees of the MSPCL/ MSPDCL and the Electricity Department, Manipur are almost at par in all aspects and even after the absorption of the personnel of the Electricity Department, Manipur, they will be entitled to be considered for promotion, for which their past services will be protected and will be taken into account. After the Transfer Scheme, 2013 being given effect to on 01-02- 2014, any promotion given only to the personnel of the Electricity Department, Manipur, who are ineligible for promotion, by relaxation of the recruitment rules will have a serious and corresponding consequence towards the rank and position thereby affecting the interest of the petitioners and others in the MSPCL/MSPDCL at the time when the personnel of the Electricity Department, Manipur are absorbed in the MSPCL/MSPDCL and in other words, it will have a bearing on the interest of the petitioners. Therefore, the contentions of the learned counsels appearing for the respondents have no merit and the writ petitions are held as maintainable.
W.P.(C) No. 559 of 2020 & ors. Contd../-
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[12] In order to resolve the issues as formulated hereinabove, the
provisions of the Transfer Scheme, 2013 and in particular, the object sought to be achieved by it, needs to be gone into and examined minutely and the subsequent actions taken by the State Government will have to be considered in the light of the provisions of the Article 14 of the Constitution of India.
[13.1] The Electricity Act, 2003 was enacted by the Parliament with a view to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry etc. and for matters connected therewith or incidental thereto. In other words, the objective was to enact a new legislation for regulating the electricity supply industry in the country. Section 131 provides for vesting of properties of the State Electricity Board in the State Government and for re-vesting thereof by the State Government in a Government Company or any other company in accordance with the transfer scheme. Section 133 provides for transfer of the officers and the employees to the transferee on the vesting of properties, rights and liabilities in such transfer as provided under Section
131. In order to give effect to the objects and purposes of the Act and in exercise of the power conferred by Section 131 and 133, the State Government made the Transfer Scheme, 2013 which came into force on 01-02-2014. As per Clause 4, on and from the effective date, the assets, liabilities stood transferred to the MSPCL/MSPDCL, subject to the terms and conditions mentioned in the Transfer Scheme, 2013, which should be W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 37 of 63responsible for all functions, contracts, rights, deeds etc. So far as the personnel of the Electricity Department, Manipur are concerned, Clause 4(3) provides that their rights, responsibilities, liabilities and obligations and matters relating to them including salary, wages etc., shall be dealt with in the manner provided under Clause 5 of the Transfer Scheme, 2013. [13.2] Clause 5 provides that on the effective date, the personnel of the Electricity Department, Manipur shall stand deputed en masse in the MSCPCL/MSPDCL. The Electricity Department, Manipur shall finalise the deputation of its personnel and issue appropriate orders on or before the effective date. Its personnel shall continue to be in service of the Electricity Department, Manipur on the effective date and deputed to MSPCL/ MSPDCL in the post, scale of pay or seniority in accordance with the orders that may be passed for this purpose. The State Government shall constitute a committee within a month to receive representation as regards any grievance relating to deployment of personnel to the MSPCL/MSPDCL and shall be entitled to pass order on its recommendation. Its personnel shall discharge the duties and functions assigned to them by the MSPCL/ MSPDCL which will have the power to exercise all administrative and disciplinary powers and control over them as per the Transfer Scheme, 2013. The service conditions applicable to the personnel would continue to be the same. Clause 5(9) provides that the transfer of the personnel shall be subject to the conditions mentioned therein. On deputation to MSPCL/ MSPDCL, any matter regulating the service conditions shall be governed and decided as per State Government's rules/ instructions. While on W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 38 of 63deputation, the personnel would continue in their substantive posts/ designations as far as their status in the Electricity Department, Manipur is concerned and the new designations in the MSPCL/MSPDCL shall only be for the functional roles. The personnel shall continue to be eligible for promotions as per service conditions and rules of the State Government. The promotions would be effected within the Electricity Department, Manipur and pro-forma promotion would be provided. Upon completion of three years from the effective date, the State Government shall provide an option to the personnel to be permanently absorbed in the services of the MSPCL/MSPDCL, whereupon the personnel who choose to exercise such option, shall be permanently absorbed in the MSPCL/MSPDCL. The terms and conditions offered to such absorbed personnel shall not be inferior to the extent service condition applicable to them. On absorption, absorbed personnel shall be governed by the rules, regulations and policies of the MSPCL/MSPDCL. The personnel who will retire on deputation, shall be recalled to the Electricity Department, Manipur before one/three months of his retirement and shall retire from it. The pension and retirement benefits payable to him would be in accordance with and commensurate with the last pay and position held in the Electricity Department, Manipur before retirement. The absorbed personnel shall be eligible for pensionable and other terminal benefits on the basis of combined length of service rendered by such personnel in the Electricity Department, Manipur and in the respective MSPCL/MSPDCL in accordance with the formula prescribed for calculation of such pensionary and other terminal benefits as may be W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 39 of 63applicable to the employee at the time of retirement from the MSPCL/ MSPDCL.
[14.1] Article 14 of the Constitution of India guarantees to any person an equality before the law or the equal protection of the laws. Equal protection means the right to equal treatment. The content of Article 14 was originally interpreted by the Hon'ble Supreme Court as a concept of equality confined to aspects of discrimination and classification but it got expanded to comprehend the non-arbitrariness, reasonable, fair, compliance with natural justice etc. In Ramana Dayaram Shetty Vs. International Airport Authority & ors, (1979) 3 SCC 489, it has been held by the Hon'ble Supreme Court that it is well settled as a result of the decisions of this Court in E.P Royappa Vs. State of Tamil Nadu, (1974) 4 SCC 3 and Maneka Gandhi Vs. Union of India, (1978) 1 SCC 248 that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State act must not be arbitrary but must be based on some rational and relevant principles which is non- discriminatory: it must not be guided by any extraneous or irrelevant considerations, because that would be denial of equality. The principles of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law. The State cannot, therefore, act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 40 of 63some standard or norm which is rational and non-discriminatory. In Nelima Mishra Vs. Harinder Kaur paintal & ors, (1990) 2 SCC 746, the Hon'ble Supreme Court held:
"29.The Chancellor, however, has to act properly for the purpose for which the power is conferred. He must take a decision in accordance with the provisions of the Act and the statutes. He must not be guided by the extraneous or irrelevant considerations. He must not act illegally, irrationally or arbitrarily. Any such illegal, irrational or arbitrary action or decision, whether in the nature of a legislative, administrative or quasi-judicial exercise of power is liable to be quashed being violative Article 14 of the Constitution. As stated in EP Royappa Vs. State of Tamil Nadu (SCC p.38, para 85) "equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute moranch". The principle of equality enshrined in Article 14 must guide every State action, whether it be legislative, executive, or quasi-judicial. See Maneka Gandhi Vs. Union of India; Ajay Hasia Vs. Khalid Mujib Sehravardi; Som Raj Vs. State of Haryana."
In Kumari Shrilekha Vidyarthi & ors. Vs. State of UP & ors., (1991) 1 SCC 212, wherein the question was as to whether the impugned circular was amenable to judicial review and if yes, was it liable to be quashed as violative of Article 14 of the Constitution of India being arbitrary, the Hon'ble Supreme Court held:
35. It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the W.P.(C) No. 559 of 2020 & ors. Contd../-Page 41 of 63
State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind.
There is no need of multiplying the decisions but In Sri Ram Builders Vs. State of Madhya Pradesh & ors., (2014) 14 SCC 102, the Hon'ble Supreme Court considered the issues relating to contract and held:
"58. In the ultimate analysis, the whole controversy boils down to a breach of contract by M.P. RTC entered into with the appellant. The scope of judicial review is very limited in contractual matters even where one of the contracting parties is the State or an instrumentality of the State. The parameters within which power of judicial review can be exercised, has been authoritatively laid down by this Court in a number of cases.
59. In Tata Cellular v. Union of India this Court upon detailed consideration of the parameters within which judicial review could be exercised, has culled out the following principles: (SCC pp. 675 & 677, paras 70 & 77) "70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. The Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.
W.P.(C) No. 559 of 2020 & ors. Contd../-Page 42 of 63
77. The duty of the court is to confine itself to the question of legality. Its concern should be:
(1) whether a decision-making authority exceeded its powers? (2) committed an error of law, (3) committed a breach of the rules of natural justice, (4) reached a decision which no reasonable tribunal would have reached, or (5) abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time."
60. In our opinion, the case put forward by the appellant would not be covered by the aforesaid ratio of law laid down by this Court. The High Court, in our opinion, has rightly observed that the appellant can seek the appropriate relief by way of a civil suit. The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not normally grant the relief of specific performance of a contract. This view is supported by Ramchandra Murarilal Bhattad v. State of Maharashtra. This Court relying upon the earlier decision in Noble Resources Ltd. v. State of Orissa held as under:
(Ramchandra Murarilal Bhattad case, SCC p. 607, paras 5051) "50. ... this Court would not enforce specific performance of contract where damages would be adequate remedy. It was also W.P.(C) No. 559 of 2020 & ors. Contd../-Page 43 of 63
held that conduct of the parties would also play an important role.
51. The expansive role of courts in exercising its power of judicial review is not in dispute. But as indicated hereinbefore, each case must be decided on its own facts."
It is well settled that the decision making process of the State should be transparent, fair and open. Reasonableness and fairness is the heart and soul of the Article 14 of the Constitution of India. In other words, the Government ought to act fairly and reasonably. Article 14 strikes at the root of any kind of unreasonable and arbitrary actions of the State or its instrumentalists. In a catena of decisions including the abovementioned, the Hon'ble Supreme Court has held that an order passed by a public authority exercising administrative/ executive or statutory powers must be judged by the reasons stated in the order or any record or file contemporaneously maintained. The State action must be supported by some valid reasons and should be upon due application of mind. It has to be examined whether the Government had given sufficient reasons for the order it passed, at the time of passing the order. The Government does not have a carte blanche to take any decision it chooses to; it cannot take a capricious, arbitrary or prejudiced decision. It must be informed and impregnated with reasons. It is thus seen that even in matters relating to contracts or commercial transactions, the Government ought to act fairly and reasonably and the High Court can entertain a writ petition on the ground of violation of Article 14 of the Constitution when the impugned act of the State or its instrumentality is arbitrary, unfair or unreasonable or in W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 44 of 63breach of obligations under public law. The only exception is that while exercising the power conferred under Article 226 of the Constitution, the larger public interest shall always be kept in view by the High Court. [15] As regards the first issue, admittedly the Transfer Scheme, 2013 was made in terms of Section 131 and 133 of the Electricity Act, 2003, the object sought to be achieved by it is to transfer all assets and liabilities and the personnel of the Electricity Department, Manipur to the Government companies, the MSPCL/MSPDCL so that they should take the responsibilities of transmission, generation, distribution etc. of electricity in the State. In the present cases, this Court is concerned with the subject matter in issue which relates to the transfer of personnel of the Electricity Department, Manipur and the manner in which they should have been transferred/ shall be transferred to the said MSPCL/MSPDCL. The procedure prescribed in the Transfer Scheme, 2013 is that all the personnel of the Electricity Department, Manipur except few to be retained for administrative purpose, will stand deputed en-mass to the MSPCL/ MSPDCL, which the State Government had, in fact, done it as part of the implementation of the Transfer Scheme, 2013 and that they will stand absorbed permanently thereafter. It is a matter of time that the personnel of the Electricity Department, Manipur are bound to be the employees of the MSCPCL/MSPDCL which is indispensable. It is not in dispute that after the provisions of the Transfer Scheme, 2013 being implemented fully by the State Government, the Electricity Department, Manipur or for that matter, the Power Department will remain only to be an Administrative Department W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 45 of 63with limited staff and the duties and functions to be performed and discharged by its employees as regards the transmission, generation, distribution etc. will stand uprooted therefrom. In other words, the services of the personnel will no longer be required in the Electricity Department, Manipur for the reason that the duties and functions to be performed and discharged by them are not to be left behind at all. The general conditions for transfer of personnel are enumerated in Clause 5 of the Transfer Scheme, 2013 and such transfer shall be subject to the conditions mentioned in sub-clause (9) thereof. The provisions of Clause 5 are to be read as a whole and in short, the rights and interest which were enjoyed by the personnel in the Electricity Department, Manipur, would continue to be enjoyed by them. The corollary issue that arises, at this juncture, is as to when the transfer of the personnel was to be completed or will have to be completed by the State Government. The answer is available at Clause 5(9)(d) of the Transfer Scheme, 2013 which provides for three years as the transitory period. In other words, the transitory period is three years, during which the State Government ought to have taken the requisite and appropriate actions so that upon completion of three years, the State Government could have provided option to them to be permanently absorbed in the services of the MSPCL/MSPDCL. After the option being exercised by the personnel, they could have been absorbed permanently as the employees of the MSPCL/MSPDCL by then so that the personnel of the Electricity Department, Manipur and the employees of the MSPCL/ MSPDCL could have been brought under one umbrella, in the sense that W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 46 of 63they could have been brought at par, depending upon their existing ranks and positions, governed by the law applicable to the employees of the MSPCL/MSPDCL. In fact, the process of absorption ought to have been completed immediately after the expiry of three years. But the State Government had failed to implement the provisions of Clause 5 (9)(d) with the result that the personnel of the Electricity Department, Manipur, who should have become the employees of the MSPCL/MSPDCL on their absorption, were allowed to continue to be its personnel technically without the duties and functions to be performed and discharged by them in the Electricity Department, Manipur because they had/ have been discharging their duties in the MSPCL/MSPDCL after their posts being re-designated as the Manager/ Deputy General Manager/ General Manager etc. On the one hand, the State Government failed to take appropriate action for absorption of its personnel in the MSPCL/MSPDCL as prescribed in the Transfer Scheme, 2013 and on the other hand, it granted promotions to its personnel who were/ are ineligible for promotion, by relaxation of the eligibility criteria for promotion. In other words, the undue advantages had been/ are being given to its personnel so that as and when they are absorbed in the MSPCL/MSPDCL, they will be put in an advantageous position. This sort of action taken by the State Government without taking into account the problems that may arise in future in the MSPCL/MSPDCL at the time of preparing the seniority list, is highly unfair and unreasonable. The failure on the part of the State Government in implementing Clause 5(9)(d) is contrary to the provisions of Section 133 of the Electricity Act, W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 47 of 632003 and in other words, it has defeated the very object sought to be achieved by it. In addition thereto, the non-implementation of Clause 5(9)(d) for more than four years from the effective date which is quite unfair and unreasonable, has led to the present controversy. If the issue is not resolved today, it will open a floodgate of litigations in future. The non- implementation of Clause 5(9)(d) by the State Government has rendered the Transfer Scheme, 2013 inconsequential and meaningless. Any action taken by the State Government after the Transfer Scheme, 2013 being given effect to on 01-02-2014, towards granting undue advantage to its personnel except for their absorption, is bad in law. Nothing is required to be done by the State Government except in respect of absorption of its personnel. The averment made in the affidavit filed on behalf of the State Government that the absorption policy will be implemented, as and when the financial conditions of the State Government improve, is absolutely untenable. It is nowhere provided in the Transfer Scheme, 2013 that the absorption shall be done by the State Government, only when the money is available with it. The Transfer Scheme, 2013 is itself its policy decision which has not been questioned by anyone and therefore, it will have to be implemented by the State Government in its letter and spirit, the non- implementation of which, in the midst of implementation, is unfair and unreasonable. It is a different matter, if the State Government takes a decision to withdraw the Transfer Scheme, 2013. Assuming for the sake of argument that the implementation of the Transfer Scheme, 2013 involves huge amount towards absorption of its personnel, the State Government W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 48 of 63could have thought of various means to arrange the amount. A period of seven years from the effective date cannot be said to be a short time for doing the needful. The amount allocated in the budget of the Electricity Department, Manipur for the payment of salary to its personnel, could have been transferred to the MSPCL/MCPDCL as a part of the implementation of the Transfer Scheme, 2013 which the State Government utterly failed to do it. As has been held by the Hon'ble Supreme Court in the decisions relied upon by the counsel appearing for the petitioners, the financial difficulties cannot be a ground for violating fundamental rights. Therefore, the first issue is answered in the affirmative.
[16] As has been observed hereinabove, on account of the failure of the State Government to implement the provisions of Clause 6(9)(d) of the Transfer Scheme, 2013, the personnel of the Electricity Department, Manipur do remain technically continued to be its employees and taking advantage thereof, various actions have been taken by the State Government towards the relaxation of the Recruitment Rules, 1986 and the promotions being given to its employees. Undue advantages have been granted to the personnel of the Electricity Department, Manipur. Such actions which are contrary to the object sought to be achieved by the Transfer Scheme, 2013 itself, are unreasonable, unfair and illegal for the following facts and circumstances:
(a) The Transfer Scheme, 2013 envisage that the personnel of the Electricity Department, Manipur ought to be deputed en mass to the MSPCL/MSPDCL and be absorbed permanently after their W.P.(C) No. 559 of 2020 & ors. Contd../-Page 49 of 63
option being exercised by them. In other words, the employees of the Electricity Department, Manipur should stand merged with the employees of the MSPCL/MSPDCL to be governed by the law applicable to their employees. As the word "shall" being used in Clause 5(9)(d), the absorption which is mandatory, is to be done immediately after three years from the effective date ie., 01-02-2014. The exercise of option by the personnel of the Electricity Department, Manipur is a mere formality for the reason that none of them could say "no' to absorption except offering for voluntary retirement or facing compulsory retirement being imposed by the State Government;
(b) The personnel of the Electricity Department, Manipur are governed by the provisions of the Recruitment Rules, 1986 which appear to have not been quashed and set aside by any order of the Court. The Recruitment Rules, 1986 and its application will come to an end and remain inapplicable to the personnel of the Electricity Department, Manipur as and when they are absorbed permanently in the MSPCL/MSPCL in terms of the procedure prescribed in Clause 5(9)(d) of the Transfer scheme, 2013. Since the transitory period as prescribed in Clause 5(9)(d) is three years, the application of the Recruitment Rules, 1986 ought to have been allowed to continue for three years only from 01-02-2014 but due to non-implementation of Clause 5(9)(d), the Recruitment Rules, 1986 have remained in W.P.(C) No. 559 of 2020 & ors. Contd../-
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operation. Had the personnel of the Electricity Department, Manipur been absorbed immediately after the expiry of the period of three years, the need of continuing operation of the Recruitment Rules, 1986 would not have arisen and such actions as impugned herein ought not to have been taken by the State Government;
(c) The transitory period of three is prescribed in the Transfer Scheme, 2013 itself and therefore, it is incumbent upon the State Government to follow it. During this transitory period of three years, the eligible personnel of the Electricity Department, Manipur could have been considered and granted promotions which would not have affected the interest of anyone or for that matter, the petitioners. But it had not been done so by the State Government and on the contrary, the State Government issued a Notification dated 08-01-2018 amending the Recruitment Rules by relaxation of the eligibility criteria as one time measure which was valid till 31-10-2018, followed by an order dated 30-01-2018 appointing as many as 22 Assistant Engineers on promotion to the post of Executive Engineer on the basis of the said one time relaxation. Similarly, a Notification dated 25-02-2019 was issued amending the Recruitment Rules by relaxation of the eligibility criteria as one time relaxation which was valid for three months, followed by an order dated 27-02-2019 appointing as many as 4 Assistant Engineers on promotion to the post of Executive W.P.(C) No. 559 of 2020 & ors. Contd../-
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Engineer on the basis of the said one time relaxation. In respect of the post of the Assistant Engineer as well, a Notification dated 24-02-2018 was issued amending the Recruitment Rules regarding the method of recruitment as "100%" by promotion in place of "60%" by promotion as one time relaxation which was valid till 31-03-2018, followed by an order dated 27-02-2018 appointing as many as 42 Section Officer Grade-I on promotion to the post of the Assistant Engineer on the basis of the one-time measure. These actions are taken by the State Government to fabour its personnel/ employees and when they are absorbed, they will be in an advantageous position. There is a likelihood of the personnel of the Electricity Department, Manipur being absorbed in the higher rank which will lead to heart burning amongst the employees of the MSPCL/MSPDCL;
(d) The reasons as to why the recruitment rues are required to be amended and promotions given pursuant thereto, are nowhere stated either in the Notifications or in the appointment orders. In the affidavit filed on behalf of the State Government, it has been stated that since the personnel of the Electricity Department, Manipur have been serving for so many years and are on the verge of retirement, they are being given promotions by relaxation of the recruitment rules. The stand of the private respondents as submitted by their counsel, is that they are being given promotions by relaxation of the recruitment rules in order W.P.(C) No. 559 of 2020 & ors. Contd../-
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to phase out the retired contract employees. What is the object sought to be achieved by granting promotions to the personnel of the Electricity Department, Manipur and that too, by relaxation of the eligibility criteria. What is the nexus between the object sought to be achieved and the action taken by the State Government towards promotion. What is the need of granting promotions to the ineligible persons by relaxation of the eligibility criteria before they are being absorbed in the MSPCL/MSPDCL. No materials have been placed on record by the State Government to answer these questions. The reasons assigned in the affidavits which are not cogent, are indicative of the fact that the State Government wishes to favour its personnel before they are being absorbed in the MSPCL/MSPDCL. That is the reason why the promotions are given hurriedly to its personnel so that they will get advantage over the employees of the MSPCL/MSPDCL after their absorption. In fact, the personnel of the Electricity department, Manipur are entitled to be considered for promotion even after their absorption in the MSPCL/ MSPDCL which cannot be denied to them. Their past services are protected and are to be taken into account at the time of consideration for promotion. In view of the law laid down by the Hon'ble Supreme Court that the principle of equality enshrined in Article 14 must guide every State action, whether it be legislative, executive, or quasi-judicial, the grant of promotion to W.P.(C) No. 559 of 2020 & ors. Contd../-
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the personnel of the Electricity Department, Manipur by relaxation of the eligibility criteria without any rational, is arbitrary and malafide being violative of Article 14 of the Constitution;
(e) Article 309 empowers the Union as well as the States to enact laws regulating recruitment and conditions of service appointed to public service and posts. However, this exercise of power is subject to other provisions of the Constitution including the fundamental rights. Pending any legislation either by the Union or any State, the President or the Governor, as the case may be, is competent to make rules for the aforesaid purpose. In the present case, the aforesaid Notifications amending the existing Recruitment Rules, 1986 are stated to have been issued in exercise of power conferred by the proviso to Article 309 of the Constitution of India. But it may be noted that any policy decision taken by the State Government cannot be said to be valid in all cases and it cannot be interfered by the Court. The validity and correctness of such notifications is amenable/ susceptible to judicial review, if it is arbitrary, irrational and malafide being violative of Article 14 of the Constitution of India;
(f) If the personnel of the Electricity Department, Manipur will not have to be absorbed in the MSPCL/MSPDCL in terms of the Transfer Scheme, 2013, it is the domain of the State Government to take any policy decision and take appropriate action accordingly for its personnel including grant of promotion W.P.(C) No. 559 of 2020 & ors. Contd../-
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in accordance with law which will have no bearing on the interest of the employee of the MSPCL/MSPDCL. In other words, the State Government can do anything for the benefit of its employees in accordance with law. The present case is not the one where such thing can be done by the State Government. The intent of the Transfer Scheme, 2013 is that they will stand absorbed in the MSPCL/MSPDCL permanently and become their employees forming common cadres in the posts of the Manager, Deputy General Manager, General Manager etc. They are already in the pipeline, in the sense that they are, now, on deputation for being absorbed in the MSPCL/MSPDCL and cannot go back to the Electricity Department, Manipur from where the duties and functions to be discharged by them had already been uprooted. In such circumstances, the grant of promotion to its personnel who are ineligible, by relaxation of eligible criteria, cannot be said to be a policy decision which is free from arbitrariness or irrational. In other words, the grant of promotions to them by the State Government taking advantage of its own failure to implement Clause 5(9)(d) in the year, 2016 and when its personnel having discontinued discharging their duties and functions in the Electricity Department, Manipur, is highly unreasonable and unfair;
(g) The Transfer Scheme, 2013 do not contemplate separate cadres in the MSPCL/ MSPDCL-one, for the personnel of the Electricity W.P.(C) No. 559 of 2020 & ors. Contd../-
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Department, Manipur who are yet to be absorbed and two, for the employees directly recruited in the MSPCL/MSPDCL. Only common cadres are contemplated depending upon the rank and position that they held, who will be governed by the same law. No posts can be reserved separately for the personnel of the Electricity Department, Manipur and the employees directly recruited in the MSPCL/MSPDCL as is being normally/ usually done in respect of the direct recruits and the promotes. The intent of the Transfer Scheme, 2013 is that both the employees shall stand merged into common cadre with the protection of the past services of the personnel of the Electricity Department, Manipur which shall be taken into account while finalsing the seniority list and for grant of promotion. There cannot be two parallel groups of employees in the MSPCL/MSPDCL, in respect of one cadre of a post, discharging the same duties and functions, as is evident from the Transfer Scheme, 2013 in the sense that there cannot be two set of norms applicable to the employees discharging the same duties and functions. Therefore, the earmarking of promotional posts vide letter dated 18-11-2020-one, for the personnel of the Electricity, Manipur and two, for the employees of the MSPCL/MSPDCL, is unreasonable and impermissible in law. The reservation is permissible only in accordance with the law relating to reservation.
W.P.(C) No. 559 of 2020 & ors. Contd../-
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[17] One point which the learned Advocate General has emphasised,
is that the aforesaid actions towards the relaxation of the recruitment rules and the grant promotions to the employees of the Electricity Department, Manipur have been taken by the State Government pursuant to its policy decision and therefore, this Court shall not interfere with them, for which he has relied upon the decision rendered by the Hon'ble Supreme Court in Choudhury Ran Beer Singh (supra) wherein it has been held by the Hon'ble Supreme Court that in matter of policy decision or exercise of discretion by the Government so long as the infringement of fundamental right is not shown, the Court will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In Paisons Agrotech (P) Ltd.(supra), the Hon'ble Supreme Court held:
"14. Considering the entire facts of the case vis-à-vis the Government Resolution time issued relating to the condition for giving benefit of promotion, we are of the view that the reasons assigned by the learned Single Judge and the Division Bench of the High Court cannot be sustained in law. Hence, this appeal is allowed and the impugned order passed by the High Court is set aside. Consequently, it is held that the appellant is entitled to the higher pay scale on completion of nine years of service."
Similar is the case with Essar Steel Ltd. (supra) wherein the Hon'ble Supreme Court held:
"49. A perusal of the abovementioned judgments of this Court would show that this Court should exercise great caution and restraint when confronted with matters related to the policy regarding commercial matters of the country. Executive policies are usually enacted after much deliberation by the Government.
W.P.(C) No. 559 of 2020 & ors. Contd../-Page 57 of 63
Therefore, it would not be appropriate for this Court to question the wisdom of the same, unless it is demonstrated by the aggrieved persons that the said policy has been enacted in an arbitrary, unreasonable or mala fide manner, or that it offends that provisions of the Constitution of India."
In Dilip Kumar Garg & anr. Vs. State of Uttar Pradesh & ors., (2009) 4 SCC 753 when the validity of Rule 5(ii) of the Rules, 2004 was questioned on the ground of violation of Article 14 of the Constitution of India, the Hon'ble Supreme Court held :
"15. In our opinion Article 14 should not be stretched too far, otherwise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the requisite qualifications for promotion from Junior Engineer to Assistant Engineer, and it is not for this Court to sit over their decision like a court of appeal. The administrative authorities have experience in administration, and the Court must respect this, and should not interfere readily with administrative decisions. (See Union of India v. Pushpa Rani and Official Liquidator v. Dayanand.)
16. The decision to treat all Junior Engineers, whether degree- holders or diploma-holders, as equals for the purpose of promotion is a policy decision, and it is well settled that this Court should not ordinarily interfere in policy decisions unless there is clear violation of some constitutional provision or the statute. We find no such violation in this case.
17. In Tata Cellular v. Union of India it has been held that there should be judicial restraint in administrative decision. This principle will apply all the more to a rule under Article 309 of the Constitution."
From the decisions relied upon by the counsels appearing for the respondents, it is absolutely clear that the interference by the Court in W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 58 of 63matters relating to policy decision is very limited but an exception has always been carved out in the decisions of the Hon'ble Supreme Court to the effect that such a policy decision can be interfered with by the Court, if it is unfair, unreasonable, discriminatory and malafide being violative of Article 14 of the Constitution of India and is not taken in public interest. It may be noted that the policy decision shall be taken by the State Government in public interest. What is the object sought to be achieved by the policy decision of the State Government by relaxation of the Recruitment Rules, 1986 and subsequent actions taken by it granting promotion to its ineligible personnel. Is it for the enhancement of the performance or skill ? Is it a reward for their good performance in the past ? Whatever may be the reason, the grant of promotion to ineligible persons by relaxation of the eligibility criteria cannot be said for it. The Transfer Scheme, 2013 had already been made by the State Government in terms of the provisions of the Electricity Act, 2003 by which the personnel of the Electricity Department, Manipur have to be absorbed in the MPDCL/ MSPDCL in terms of Clause 5(9)(d) which provides for the transitory period of three years. The personnel of the Electricity Department, Manipur are already on deputation in the MSPCL/MSPDCL as a part of the transitory process and they have been designated as the Manager (Elect), Deputy General (Elect), General Manager (Elect) etc., as the case may be, discharging the same duties and functions as that of the petitioners and other employees of the MPDCL/MSPDCL. After the personnel of the Electricity Department, Manipur being absorbed permanently, they will W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 59 of 63become the employees of the MPDCL/MSPDCL governed by the same set of norms. The expression "public interest" does not mean the interest of the personnel of the Electricity Department, Manipur only. It does definitely mean the interest of all including that of the employees of the MSPCL/ MSPDCL for the reason that the personnel of the Electricity Department, Manipur, after the Transfer Scheme, 2013 being implemented partly, are already working in the MSPCL/MSPDCL on deputation in the transitory period for their absorption permanently. They are not, at present, discharging their duties and functions in the Electricity Department, Manipur and in other words, they have no duties and functions to be discharged in the Electricity Department, Manipur but for the failure on the part of the State Government, they are technically continued to be the personnel of the Electricity Department, Manipur. Had the provisions of Clause 5(9)(d) been implemented in the year, 2016 itself, they would have become the employees of the MSPCL/MSPDCL then and there and the appropriate actions could have been taken by the authorities concerned for granting promotions to them as per law applicable to them. This is what is contemplated in the Transfer Scheme, 2013 which is nothing but a scheme made by the State Government by way of a policy decision in terms of the provisions of the Electricity Act, 2003. Any action taken by the State Government after the expiry of the three years as prescribed in Clause 5(9)(d) granting undue advantage to its personnel only and that too, with the relaxation of the Recruitment Rules, 1986 will be rendered unfair and unreasonable being violative of Article 14 and 16 of the Constitution of W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 60 of 63India. It will have a bearing on the interest of the employees of the MSPCL/ MSPDCL. For example, as many as 23 persons were appointed as the Managers (Elect) in the MSPDCL vide order dated 30-10-2014 on the recommendation of the MPSC, while 13 Section Officer Grade-I, Electricity Department, Manipur were appointed on promotion to the post of Assistant Engineer vide order dated 27-01-2015. These 13 Assistant Engineers were, at the relevant time, working in the MSPCL/MSPDCL as juniors after their being designated as the Managers (Elect). It may be noted that the said 23 Managers (Elect) were appointed earlier in point of time than the 13 assistant Engineers. However, out of the said 13 Assistant Engineers, 5 Assistant Engineers were further promoted to the next higher post of the Executive Engineers vide order dated 30-01-2018 after the relaxation of the Recruitment Rules, 1986 and they were designated as the Deputy General Manager (Elect) in the MSPDCL vide order dated 24-04-2018. The question is as to what will happen to the interest of the said 23 Managers (Elect), when the said 5 Executive Engineers who were juniors to them at the level of the Manager (Elect), were absorbed in the MSPDCL as the Deputy General Manager (Elect). Can their interest be protected in any manner ?. It will definitely cause hear-burning amongst the employees of the MSPCL/MSPDCL which may prompt them to approach the Court for redressal of their grievances, when the combined seniority is published. This sort of heart-burning may affect the proper and effective functioning of the MSPCL/MSPDCL, thereby ultimately affecting the transmission, supply etc. of electricity to the general public. In order to provide undue advantage W.P.(C) No. 559 of 2020 & ors. Contd../-
Page 61 of 63to its own personnel, the State Government has created/ is going to create further problem for others which is quite unreasonable, arbitrary as the State Government ought to act fairly and reasonably. It may be noted that any policy decision taken by the State Government can be tested on the touchstone of Article 14 of the Constitution, if it is unfair, unreasonable and arbitrary. From the stand indicated in the affidavit filed on behalf of the State Government, it is seen that the State Government appears to have proceeded on the footing that the legal rights of the petitioners are not affected but it appears to have forgotten that any executive action including a policy decision, is amenable to judicial review, if it is unfair and unreasonable and it will definitely attract the provisions of Article 14 of the Constitution of India which is a fundamental right guaranteed to any person.
[18] In view of the above and for the reasons stated hereinabove, the above writ petitions stand disposed of with the following directions:
(a) The respondent No.2, the Commissioner/ Secretary (DP), Government of Manipur shall recall/ cancel the Notifications dated 08-01-2018; dated 24-02-2018; dated 25-02-2019 and dated 02-01-2021 towards the relaxation of the Recruitment Rules, 1986 on or before 05-03-2021;
(b) The respondent No.1, the Commissioner (Power), Government of Manipur shall recall/ cancel the order dated 30-01-2018 appointing 22 Assistant Engineers on promotion to the post of Executive Engineer; order dated 27-02-2018 appointing as many W.P.(C) No. 559 of 2020 & ors. Contd../-Page 62 of 63
as 42 Section Officer Grade-I on promotion to the post of the Assistant Engineer; order dated 27-02-2019 appointing 4 Assistant Engineer on promotion to the post of the Executive Engineer and the letter dated 18-11-2018 or any other order/ letter issued by its Department after the expiry of three years from 01-02-2014 on which the Transfer Scheme, 2013 came into force, on or before 05-03-2021;
(c) The respondent No.1, the Commissioner (Power), Government of Manipur shall implement Clause 5(9)(d) of the Transfer Scheme, 2013 as quickly as possible, for which it shall provide option to its personnel/ employees, within twenty-one days from the date of receipt of a copy of this judgment and order, to be exercised by them within seven days thereafter. After the expiry of the total days of twenty-eight days as mentioned above, the respondent No.1 shall take decisions for absorption of its personnel as the employees of the MSPCL/MSPDCL;
(d) After the personnel of the Electricity Department, Manipur are absorbed in the MSPCL/MSPDCL as per the direction (c) above, the authorities concerned of the MSPCL/MSPDCL shall prepare combined seniority lists of all cadres for the posts of Manager (Elect); Deputy General Manager (Elect), General Manager (Elect) etc. within a month therefrom taking into account the past services rendered by the personnel of the Electricity Department, Manipur in terms of the Transfer Scheme, 2013 and shall take, W.P.(C) No. 559 of 2020 & ors. Contd../-
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immediately thereafter, appropriate actions for holding DPCs for the purpose of their promotions to their respective higher posts.
JUDGE FR/NFR Dhekeshori Yumk Digitally signed by Yumkham Rother ham Date:
2021.02.05 Rother 16:03:46 +05'30' W.P.(C) No. 559 of 2020 & ors. Contd../-