Manipur High Court
Sharma 10:24:54 +05'30' vs The State Of Manipur Represented By The ... on 26 May, 2022
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
Page |1
SHAMUR Digitally signed
by
AILATPA SHAMURAILATP IN THE HIGH COURT OF MANIPUR
AM SUSHIL
M SHARMA
AT IMPHAL
SUSHIL Date:
2022.05.27
WP(C) No. 592 of 2021
SHARMA 10:24:54 +05'30'
Shri Ahongshangbam Tomba Singh, aged about 58 years, S/o
(L). A. Ibomcha Singh of Irom Meijrao Maning Leikai, P.O. & P.S.
Wangoi, Imphal West District, Manipur-795009.
....PETITIONERS
-V E R S U S-
1. The State of Manipur represented by the Principal
Secretary/Commissioner/(Home) Government of Manipur,
Manipur Secretariat, Imphal-795001.
2. The Special Secretary/Commissioner, Department of
Personnel and Administrative Reforms (Personnel
Division), Government of Manipur, Manipur Secretariat,
Imphal-795001.
3. The Director General of Police, Government of Manipur,
Manipur Police Head Quarter, Babupara, Imphal-795001.
4. The Manipur Public Service Commission through its
Secretary, MPSC, North AOC, Imphal-795001.
.... RESPONDENTS
BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN For the Petitioners :: Mr. HS Paonam, Sr. Advocate For the Respondents :: Mr. H. Samarjit, GA Mr. Kh. Athouba, GA for R-4.
WP(C) No. 592 of 2021
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Date of Hearing and
reserving Judgment &
Order :: 05.05.2022
Date of Judgment &
Order :: 26.05.2022
JUDGMENT AND ORDER
(CAV)
Heard Mr.H.S.Paonam, learned senior counsel for the petitioner; Mr.H.Samarjit, learned Government Advocate for the official respondents and Mr.Kh.Athouba, learned counsel for the Manipur Public Service Commission.
2. This writ petition has been filed by the petitioner seeking a writ of mandamus directing the respondents to consider the case of the petitioner for granting notional promotion to the grade of MPS Grade-II with effect from 2014-2015.
3. Mr. HS Paonam, the learned senior counsel for the petitioner submitted that the petitioner was given appointment to the post of MPS Grade-II on 9.10.2018 on the recommendation of the Departmental Promotion Committee (DPC) held in association with the Manipur Public Service Commission (MPSC) and in that order, the name of the petitioner was found WP(C) No. 592 of 2021 Page |3 place at Serial No.32. He would submit that upon perusal of the DPC proceedings for promotion to the post of MPS Grade-II, which has been provided under RTI application filed by the petitioner, the petitioner came to learnt that he was recommended at Serial No.1 against 17 vacancies which arose in the year 2014-2015.
4. By placing reliance upon the Office Memorandum dated 29.4.1999, which has been revised vide Office Memorandum dated 15.5.2015, the learned senior counsel for the petitioner submitted that a vacancy shall be filled in accordance with the recruitment rules in force on the date of vacancy, unless rules made subsequently have been expressly given retrospective effect. According to the learned senior counsel, it is obligatory on the part of the official respondents to adhere to the time scheme laid down by the Department of Personnel, Government of Manipur for making promotions against the vacancies occurring during the course of a year.
5. The learned senior counsel urged that failure on the part of the respondents in not holding the DPC as per the model calendar resulted in the delayed promotion and that the petitioner is denied for right to be considered for promotion in the year WP(C) No. 592 of 2021 Page |4 2014-2015 i.e. the year against which petitioner is recommended. Further, since the DPC was not held in the year when the relevant vacancies arose due to sheer inaction on the part of the respondents, the petitioner cannot be deprived of the right to be considered for promotion with effect from the date of vacancies in terms of the Office Memorandum dated 15.4.2014.
6. The learned senior counsel submitted that the petitioner being aggrieved by the deprivation of his right to hold higher post due to the delay in holding DPC for promotion to the post of MPS Grade-II have already approached the authority for considering his case for the post of Additional Superintendent of Police on in-charge basis vide representation dated 14.10.2020. However, the authority has rejected the representation of the petitioner vide order dated 6.4.2021.
7. The learned senior counsel submitted that the petitioner who was given promotion to the post of Inspector of Police in the year 2008 become eligible for promotion to the post of MPS Grade-II in the year 2010. If the DPC held in the year 2014-2015, the petitioner would have been given promotion in that year. Due to non-holding of DPC for promotion to the post of MPS Grade-II for the years despite having vacancies in the grade WP(C) No. 592 of 2021 Page |5 of MPS Grade-II, the petitioner was denied his right for consideration for promotion in time. In support, the learned senior counsel has placed reliance upon the following decisions:
(1) Guman Singh v. State of Rajasthan, (1971) 2 SCC 452 (2) P.N.Premachandran v. State of Kerala, (2004) 1 SCC 245 (3) Amarjeet Singh v. Devi Ratan, (2010) 1 SCC 417 (4) State of UP v. Mahesh Narian, (2013) 4 SCC 169 (5) Kusheswar Prasad Singh v. State of Bihar, (2007) 11 SCC 447 (6) Oinam Brajachand Singh v. UoI, (2013) 2 GLT 814
8. Per contra, Mr. H. Samarjit, learned Government Advocate submitted that the appointment to a higher post with retrospective effect from a deemed or notional date of appointment is given most sparingly and on sound reasoning and foundation only when the DPC is found to be arbitrary or mala fide in nature. However, in the instant case, the petitioner has failed to prove the same and, therefore, the writ petition of the petitioner is devoid of merit. He would submit that the prayer of the petitioner for considering him as Additional SP on an in- charge basis has been considered through his representation and the same was rejected on 6.4.2021 as the petitioner was appointed to MPS Grade-II vide order dated 9.10.2018 and has WP(C) No. 592 of 2021 Page |6 only completed 2 years in MPS Grade-II as on 6.4.2021 and therefore, he is not eligible for promotion to MPS Grade-II under Rule 29(C)(i) of the Manipur Police Service Rules, 1965 (1st Amendment 2013). He would submit that the further representation of the petitioner dated 13.9.2021 to the Chief Secretary praying to review the order dated 6.4.2021 and to further allow him to hold the post of Additional SP on in-charge basis was also rejected on 28.10.2021.
9. The learned Government Advocate further submitted that the consideration of promotion is dependent on the availability of vacancies and the seniority as published from time to time and hence, promotion cannot be granted as a matter of right.
10. The learned Government Advocate then submitted that the proposal for filling up of 60 vacant posts of MPS Grade- II falling within the vacancy years of 2011-12, 2012-13, 2013-14, 2014-15, 2016-17 and 2017-18 under the promotion quota from the feeder posts of Inspectors/Subedars/Subedar Majors were forwarded to the Department of Personnel only on 17.4.2018 in view of the pending litigations being W.P.(C) No.726, 741 and WP(C) No. 592 of 2021 Page |7 723 of 2016 before this Court, thereby delaying all promotion process of all subordinate rank officers and hence there was no inordinate delay on the part of the Department of Personnel which forwarded the letter dated 9.7.2018 to the Secretary, MPSC for convening DPC for appointment by promotion to the post of MPS Grade-II in the Police Department, which were all taken up in the most efficient manner. Therefore, there is no question of inaction on the part of the respondents.
11. Mr. Kh. Athouba, the learned counsel appearing for the MPSC submitted that it cannot be ascertained that the petitioner will be recommended or appointed to the higher post of MPS Grade-II just when he becomes eligible for promotion to the higher post. It cannot also be said that the petitioner will get recommended to the higher posts of MPS Grade-II from the year 2014-15 in case the DPC was convened in these years though the above said DPC meeting held on 9.10.2018 recommended the petitioner against the vacancy year 2014-15. Therefore, it cannot be taken as granted that the petitioner would be promoted to the higher posts of MPS Grade-II, in case, the DPC meeting was held in the year 2014-15 keeping in view various factors like seniority position, order of merit, determination of vacancies WP(C) No. 592 of 2021 Page |8 arising due to retirement/ resignation/expiry etc. of the incumbents holding the feeder posts.
12. The learned counsel for the MPSC further submitted that the delay in holding DPC as alleged by the petitioner was not caused by the MPSC and that the MPSC convenes DPC only when proposal for the same is received by them. The MPSC without any delay convened the DPC meeting on 9.10.2018 after the proposal for appointment by promotion to MPS Grade-II was received. Further, the MPSC has not received any representation from the petitioner regarding the DPC for appointment by promotion to MPS Grade-II.
13. The learned counsel for the MPSC urged that the appointment of the petitioner by promotion to higher post of MPS Grade-II is to be done by the Administrative Department and the MPSC has nothing to do with the appointment and being only a recommended body.
14. This Court considered the rival submissions and also perused the materials available on record.
15. The petitioner was initially appointed as Sub- Inspector of Police in Manipur Police Department on 26.9.1986 WP(C) No. 592 of 2021 Page |9 and subsequently, he was given promotion to the post of Inspector of Police on 8.5.2008 and the next higher post for promotion from the post of Inspector of Police is the post of MPS Grade-II. The appointment to the post of MPS Grade-II is governed by Manipur Police Service Rules, 1965. As per the Recruitment Rules, 50% of the posts is to be filled by direct recruitment and the remaining 50% by promotion from the cadre of Inspector of Police, Inspector of Police (Legal) and/Subedar/Subedar Majors of Manipur Rifles. Under the said Recruitment Rules, an officer having 2 years regular service in the post of Inspector of Police, Inspector of Police (Legal) and/Subedar/Subedar Majors of Manipur Rifles are eligible for promotion to the post of MPS Grade-II. The next higher post for promotion from the post of MPS Grade-II is MPS Grade-I. As per Manipur Service Rules, a member of the service who has put in not less than years of regular service in the MPS Grade-II shall be eligible for consideration for promotion for MPS Grade-I.
16. The grievance of the petitioner is that he was promoted to the post of Inspector of Police in the year 2008 and eligible for promotion to the post of MPS Grade-II in the year 2010 and he was given appointment to the post of MPS Grade-II on 9.10.2018 on the recommendation of the DPC. The further WP(C) No. 592 of 2021 P a g e | 10 grievance of the petitioner is that the perusal of the DPC proceedings obtained under RTI, he came to know that he was recommended against 17 vacancies which arose in the year 2014-15. If DPC held in the year 2014-15, the petitioner would have been given promotion in that year. However, due to non- holding of the DPC for promotion to the post of MPS Grade-II for years despite having vacancies in the MPS Grade-II, the petitioner was denied his right for consideration for promotion in time. Thus, he prayed for consideration of his case for granting notional promotion to the grade of MPS Grade-II with effect from 2014-2015.
17. Generally, Departmental Promotion Committees would be convened at regular annual intervals to draw panels occurring during the course of a year. DPCs may be convened every year if necessary on a fixed date. Holding of DPC meeting need not be delayed or postponed on the ground that Recruitment Rules for the post are being revised/amended. A vacancy shall be filled in accordance with the recruitment rules in force on the date of vacancy, unless rules made subsequently have been expressly given retrospective effect. WP(C) No. 592 of 2021
P a g e | 11
18. As rightly argued by learned senior counsel for the petitioner, it is obligatory on the part of the respondents to adhere to the time schedule laid down by the Department of Personnel for making promotions against the vacancies occurring during the course of a year.
19. According to the learned senior counsel for the petitioner, since the DPC was not held in the year when the relevant vacancies arose due to the inaction on the part of the respondents, the petitioner cannot be deprived of the right to be considered for promotion with effect from the date of vacancies in terms of the Office Memorandum dated 15.4.2014, wherein it is provided that promotion should be prospective as it will be in the conflict with the provision of Clause 3 of the said Office Memorandum which requires holding of DPC every year. This clause of giving prospective effect to promotion in terms of the aforesaid Office Memorandum could not be made applicable in the present case since it will amount to taking advantage of their own wrong in not holding DPC regularly by the respondents.
20. On the other hand, learned Government Advocate contended that the promotion are prospective in nature and the consideration of the petitioner for retrospective promotion would WP(C) No. 592 of 2021 P a g e | 12 disturb the fabric of administration and granting special concession to the petitioner would be against statutory provisions of law.
21. If this Court considers the aforesaid submissions made by learned senior counsel for the petitioner and the learned Government Advocate for the respondent State, this Court is of the view that considering the importance of adhering to the Office Memorandum issued by the State Government regarding instruction for holding DPC and requirement of holding DPC yearly subject to availability of vacancy for avoiding complicacies and deprivation of right of the concerned eligible officer, it would be in the best of interest of all concerned that whenever there is a delay in holding DPC for promotion to the next higher post, injury which may suffer by such officer in their career for promotional avenue, consideration may also be made for affording promotion not prospectively from the date of holding DPC but from the date of availability of vacancy against which the case of the office has been considered for promotion in the manner as have been done in the other organized services. Further, such a consideration will not prejudice the interest of any third party as it will be an undisputed fact that consideration of those officers like the petitioner for promotion to the next higher WP(C) No. 592 of 2021 P a g e | 13 post was considered against the vacancies arise during the recruitment year 2014-2015.
22. In the instant case, as stated supra, the petitioner who was given promotion to the post of Inspector of Police in the year 2008 become eligible for promotion to the post of MPS Grade-II in the year 2010. Had the DPC held in the year 2014- 2015, the petitioner would have been given promotion in that year and due to non-holding of the DPC for promotion to the post of MPS Grade-II for years inspite of having vacancies in the grade of MPS Grade-II, the petitioner was denied his right for consideration for promotion in time. The arguments of learned Government Advocate that the appointment to a higher post with retrospective effect from a deemed or notional date of appointment is given most sparingly and on sound reasoning and foundation only when the DPC is found to be arbitrary in nature and the petitioner has failed to prove the same and therefore, the writ petition is not maintainable, cannot be countenanced, as the respondent authorities have failed to explain the delay in sending the proposal for filling up vacant posts. The only reason cited by the respondent authorities is that in view of the pendency of the writ petitions, the delay of all promotion process of all subordinate rank officers occurred cannot be accepted since the respondent WP(C) No. 592 of 2021 P a g e | 14 authorities have failed to produce any material to show that there was an order of the Court not to fill up vacancies by promotion and also conduction of DPC and that is why they have not conducted the DPC in time.
23. It is settled law that no litigant can derive any benefit from mere pendency of case in a Court of law. A party cannot be allowed to take any benefit of its own wrongs. The maxim actus curiae neminem gravabit, which means that the act of the Court shall prejudice no one, becomes applicable in such a case. In such a fact situation, the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any underserved or unfair advantage gained by a party invoking the jurisdiction of Court must be neutralized, as the institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court.
24. It may not be proper to make an employee suffer on account of delay on the part of the Department for not convening the DPC in terms of their own Office Memorandum without any valid reason.
25. In Guman Singh (supra), the Apex Court held thus: WP(C) No. 592 of 2021
P a g e | 15 "40. Having due regard to the principles stated above, we will not examine the scope and contents of the Circular. The Circular contains administrative instructions and it does not profess to lay down anything else.
The Government have issued those
instructions "for the guidance of all
selection/promotion committee and
appointing authorities mentioned in the Statutory Service Rules. These administrative instructions and the Statutory Service Rules should register be taken as a complete code on the subject".
41. From the above extract it is clear that in the matter of selection or promotion the Committees concerned are enjoined not only to have regard to the statutory rules under which they function, but also to the administrative instructions given in the Circular. ...."
26. In Kusheshwar Prasad Singh (supra), the Apex Court held:
"16. It is settled principle of law that a man cannot be permitted to take undue and unfair WP(C) No. 592 of 2021 P a g e | 16 advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non- performance he has occasioned. To put it differently, "a wrongdoer ought not to be permitted to make a profit out of his own wrong"
27. In the present case there was no reasonable ground for not holding the DPC for consideration for promotion to the post of MPS Grade-II in the year 2014-15 against various vacancies available. Therefore, there is a delay on the part of the respondent authorities for not convening the DPC in terms of the Office Memorandum. The said finding of this Court is also supported by the decision of the Hon'ble Apex Court in the case of P.N.Premachandran (supra), wherein the Hon'ble Apex Court observed that delay in convening DPC being administrative lapse, promotees cannot be made to suffer for no fault on their part. In the said case, the Apex Court also held that the appellant therein has no right to question the retrospective promotion granted to the private respondents.
WP(C) No. 592 of 2021
P a g e | 17
28. Retrospective promotion is permissible as per the decision of the Apex Court in the case of Amarjeet Singh (supra), wherein it has been held thus:
"27. The law permits promotion with retrospective effect only in exceptional circumstances when there has been some legal impediment in making the promotions, like an intervention by the court. An officer cannot be granted seniority prior to his birth in the cadre adversely affecting the seniority of other officers who had been appointed prior to him. "The latecomers to the regular stream cannot steal a march over the early arrivals in the regular queue." [Vide S.P.Kapoor (Dr.) v. State of H.P., (1981) 4 SCC 716, Shitla Prasad Shukla v. State of U.P., AIR 1986 SC 1859 and Uttaranchal Forest Rangers' Assn. (Direct Recruit) v. State of U.P., (2006) 10 SCC 346."
29. In Oinam Brajachand Singh (supra), the Gauhati High Court held as under:
WP(C) No. 592 of 2021
P a g e | 18 "8. Principle of natural justice and Prudent logic demands, when a person is eligible for a promotion and vacancy is available, he should be given effect of his promotion from the date of his eligibility. DPC could not be held in time for which in my view petitioner cannot be held responsible or victimized for delay DPC. Therefore, I direct the respondents authority that the petitioner's promotion to be given with effect from the date of his eligibility for promotion i.e. 1.6.2009 and he to get all the benefit from the date of his eligibility i.e. 1.6.2009. We must not forget that, a person is not promoted in time, when he become eligible, it may adversely effect his further promotion and seniority too."
30. The aforesaid decisions are squarely apply to the case on hand. It is not the case of the respondents that the petitioner is not eligible for promotion at the relevant point of time. As rightly held, for the nonholding of the DPC at the relevant point WP(C) No. 592 of 2021 P a g e | 19 of time, the petitioner cannot be held responsible and he cannot be victimized for the delayed DPC.
31. In the instant case, as stated above, due to the inaction on the part of the Department to take up the process for filling up the vacant posts of MPS Grade-II in time, even though the petitioner was recommended against the vacancies of 2014- 2015, he got promoted with effect from 2018 only that is the date on which his actual promotion to the grade of MPS Grade-II was effected. In fact, the inaction on the part of the Department is against the instructions/guidelines framed by the Department of Personnel regarding holding of DPC for promotion. Therefore, in order to compensate the loss of time in affording promotion, it would be just and proper to direct the respondents to afford notional promotion to the petitioner with effect from 2014-2015 that is the vacancy year against which the petitioner was recommended.
32. Ordinarily, an employee is entitled to be considered for promotion as per his seniority. If promotion is based on seniority, as a matter of course, senior should be granted promotion unless he is otherwise declared as unfit to be promoted. If promotion to be next cadre is based on selection, WP(C) No. 592 of 2021 P a g e | 20 employee is entitled to be considered as per seniority along with all other eligible candidates by DPC and if DPC recommends, he is entitled to be promoted.
33. It is also the fact that in case the DPC was held in 2014-2015, the petitioner would have completed 5 years of regular service and, thus, would have become eligible for being considered for the next promotion i.e. to the post of MPS Grade- I. As per the version of the respondents themselves, there was sufficient number of vacancies in the grade of MPS-II with effect from 2011 onwards.
34. Due to the arbitrary exercise of power in not holding the DPC on time by the authority, admittedly, the petitioner, will retire below one rank than the one which ought to have been made available during his long career in the Department due to want of qualifying service. Therefore, in the interest of justice and in equity to direct the respondent authorities to give notional promotion to the petitioner with effect from 2014-2015.
35. It is reiterated that every employee is having right to seek promotion as a matter of right in his/her service. According to the respondents, there are 60 vacant posts of MPS Grade-II falling within the vacancy years of 2011-12, 2012-13, 2013-14, WP(C) No. 592 of 2021 P a g e | 21 2014-15, 2016-17 and 2017-28, but no DPC was held. As stated supra, if DPC for the year 2014-15 is conducted, the petitioner would have got a chance for promotion. However, only in the year 2018, the DPC was conducted for the entire vacancy for the years 2011 to 2018 and given promotion to the petitioner. Therefore, this Court is of the view that the petitioner is entitled the notional promotion from 2014-2015 and also entitled for counting his service for the next post of Additional Superintendent of Police.
36. In the result,
a) the writ petition is allowed;
b) the respondents are directed to grant notional promotion to the grade of MPS Grade-II with effect from 2014-2015;
c) the said exercise is directed to be completed within a period of three months from the date of receipt of a copy of this order. No costs.
JUDGE FR/NFR Sushil WP(C) No. 592 of 2021