Manipur High Court
Md. Yakub Ali vs ) State Of Manipur Through The on 16 August, 2021
Equivalent citations: AIRONLINE 2021 MPR 69
Author: Lanusungkum Jamir
Bench: Lanusungkum Jamir
1
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
(1) WP(C) No. 17 of 2019 with
Md. Yakub Ali, aged about 53 years old,
s/o (L) Md.Maniruddin of Mayang Imphal
Imphal Bengoon Maning, PO & PS Mayang
Imphal, Imphal West District, Manipur
795132.
....Petitioner
-Versus-
1) State of Manipur through the
Commissioner/Secretary/Principal
Secretary (Home), Govt of Manipur,
Manipur Secretariat, PO & PS Imphal, 795001.
2) The Commandant General, Home
Guards, Government of Manipur, Manipur Police
Head Quarter, Babupara, PO Imphal 795001.
3) The Commandant, Home Guards (VA)
Government of Manipur, Lamphelpat,
Imphal 795004.
4) Md.Wahid Ali, HG No.85106 now promoted
at Battalion Commader of Bn-V, Bishnupur,
c/o Commandant Home Guards (VA)
Manipur Lamphelpat, Imphal 795004. ....Respondents
(2) WP(C) No. 608 of 2019
Md.Abdul Rajak, aged about 57 years, s/o Md.Mohamjan, resident of Irong Chesaba, PO & PS Mayang Imphal, District: Thoubal 795132 ... Petitioner Vs
1) State of Manipur through the WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 2 Commissioner/Secretary/Principal Secretary (Home), Govt of Manipur, Manipur Secretariat Building Babupara, PO & PS Imphal, Imphal West, Manipur 795001.
2) The Commandant General, Home Guards, Government of Manipur, Manipur Police Head Quarter, Babupara, PO & PS Imphal Imphal West District, Manipur 795001.
3) The Commandant, Home Guards (VA) Government of Manipur, Lamphelpat, PO & PS Lamphel, District Imphal West, 795004.
4) Md.Yakub Ali, aged about 53 years old, S/o (L) Md Maniruddin, of Mayang Imphal, Imphal West District, Manipur 795132 ....Respondents (3) WP(C) No. 240 of 2019 Md.Tolen, aged about 58 years, s/o late Md Abdul Gani, resident of Irong Chesaba Mathak Leikai, PO & PS Mayang Imphal & District Thoubal, Manipur.
... Petitioner Vs
1) State of Manipur through the Principal Secretary Commissioner/Secretary/ Secretary Home, Govt of Manipur, Old Secretariat Building, Imphal West, Manipur 795001.
2) The Commandant General, Home Guards, Government of Manipur, Babupara, Imphal West, Manipur 795001.
3) The Commandant, Home Guards (VA) Government of Manipur, Lamphelpat, Imphal West, Manipur 795004. WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 3 4) Md.Wahid Ali, now serving as Bn Commander of the Bn.V (BPR) Bishnupur District, Manipur 795126 ...Respondents BEFORE HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR For the Petitioner :: Mr.H.S.Paonam, Sr.Advocate Mr.B.P.Sahu, Sr.Advocate & Mr.Kh.Tomba, Advocate For the respondents :: Mr.Shyam Sharma, GA Mr.Kh.Tarunkumar, Advocate & Mr.H.S.Paonam, Sr.Advocate Dates of hearing :: 30.01.2020, 27.02.2020, 14.01.2021, 15.01.2021 & 12.03.2021 Date of judgment/ :: 16.08.2021 order JUDGMENT AND ORDER (C A V)
All these 3 (three) Writ Petitions, being interrelated with regard to the promotion to the rank of Battalion Commander in the Home Guards, under the Government of Manipur, are being disposed of by this common judgment and order.
WRIT PETITION (C) NO. 17 OF 2019 [1] The petitioner was called out for duty as member of Home Guards (VA) by an order dated 29.09.1986. While the petitioner was serving as Division Commander (unpaid) he was allowed to look after the day to day duties of Bn-I/(IW) temporarily with immediate effect by an WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 4 order dated 14.12.2010. Thereafter, the petitioner was given promotion to the rank of Divisional Commander (Paid) with rank honorarium with immediate effect by an order dated 9.8.2016. The private respondent No.4/Md.Wahid Ali was given promotion to the post of Company Commander by an order dated 11.2.2004. By another order dated 19.09.2016, the private respondent No.4 was assigned as acting Division Commander (unpaid) temporarily with immediate effect. The order was issued to make up for the present shortage of Division Commander in the Unit and to better streamline the administration and management of the Unit.
In the meantime, the Commandant, Home Guards (VA), Manipur wrote a letter dated 7.3.2018 addressed to the Additional Director General of Police (HG), Manipur furnishing comments along with the present status of Battalion Commanders and Division Commanders of Home Guards. In the said letter the seniority list of Division Commanders in order of their promotion order was given, wherein, the name of the petitioner appeared at Sl.No.5 with his date of promotion indicated as 9.8.2016. The name of the respondent No.4 however, was not reflected in the said seniority list as contained in the letter dated 7.3.2018. However, by an order dated 6.1.2019 (wrongly typed as 6.1.2018), the respondent No.4 was promoted to the rank of Battalion Commander and posted as Battalion Commander of Bn.V Bishnupur with immediate effect. It has been clarified by the learned counsel for the petitioner that though the order indicates 6.1.2018, the same should read as 6.1.2019 inasmuch as the date 6.1.2018 is due to some typographical error.
Being aggrieved with the order dated 6.1.2019 promoting the private respondent No.4 to the post of Battalion Commander, a legal notice dated 7.1.2019 was served on the concerned authority for cancelling the promotion order and to promote the petitioner as Battalion WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 5 Commander. However, as there was no response the petitioner has filed the present writ petition before this Court.
WP(C) No. 608 OF 2019 [2] The petitioner in this writ petition is serving as Division Commander, Home Guards under the Government of Manipur since 2002. The Commander, Home Guards (VA), by a letter dated 7.3.2018 addressed to the Additional Director General of Police (Home Guards), Manipur furnished comments along with the present status of the Battalion Commanders and Division Commanders of Home Guards. In the said letter, the seniority of list of Division Commanders was also given wherein the name of the petitioner appears at Sl.No.1 with the date of promotion indicated as 20.11.2002 and name of the respondent No.4 appears at Sl.No.5 (who is the petitioner in WP(C)) No.17 of 2019) showing his date of promotion as 9.2.2016. Further, in the said letter, it was also requested for promotion of one Th.Ingocha Singh, Division Commander to Battalion Commander-II, Imphal West (vacant post).
It is the case of the petitioner that by an order dated 19.12.2018, he was directed to look after the work of the Battalion Commander of Battalion-V (BPR) in addition to his normal work with immediate effect until further order as the then Battalion Commander, Md.Habibullah, expired on 17.12.2018. The petitioner being the seniormost Division Commander as per the seniority list indicated in the letter dated 7.3.2018 made a representation dated 22.12.2018 requesting for promoting him to the post of Battalion Commander. However, without considering the representation made by the petitioner, one Md.Wahid Ali was promoted to the rank of Battalion Commander and posted as Battalion Commander of Bn.V Bishnupur with immediate effect, by order dated 6.1.2019.
WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608CAV OF 2021 WITH WP(C) NO. 240 OF 2019 6 Being aggrieved, the respondent No. 4 herein filed a Writ Petition before this Court which was registered as WP(C) No.17 of 2019 against the promotion order dated 6.1.2019. This Court, after hearing the parties passed an order dated 17.1.2019 in WP(C) No.17 of 2019 suspending the order dated 6.1.2019.
Thereafter, the official respondent issued another order dated 17.7.2019 appointing the present respondent No.4 to the rank of Battalion Commander and posted as Battalion Commander, Bn-V, Bishnupur District, with immediate effect subject to the outcome of WP(C) No.17 of 2019. Being aggrieved, the present writ petition has been filed for quashing and setting aside the impugned letter dated 16.7.2019 and order dated 17.7.2019 appointing the respondent No.4 to the post of Battalion Commander.
WP(C) NO. 240 of 2019 [3] The petitioner is presently serving as Divisional Commander of Manipur Home Guards and posted at Reserve Line, Porompat, Imphal East, Manipur.
It is the case of the petitioner that while serving as Company Commander of Battalion-III, (Imphal East), he was released from called out duty by an order dated 28.03.2011. However by another order dated 9.10.2013 he was recalled out and taken into the strength of the Home Guards Organization as he was discharged from the liability of Cril P.Case No.10 of 2012 under Section 239 Cr.P.C by an order of the Chief Judicial Magistrate, Imphal dated 5.1.2013. The petitioner thereafter resumed his duty as Company Commander. He was thereafter promoted to the rank of Divisional Commander (paid) with rank honorarium with immediate effect along with 2 (two) others by an order dated 2.8.2016.
It is also the case of the petitioner herein that the Commandant, Home Guards (VA), Manipur wrote a letter dated 7.3.2018 WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 7 addressed to the Additional Director General of Police (HG), Manipur providing the present status of Company Commanders and Divisional Commanders of Home Guards wherein the seniority list of Division Commanders were also given. Therein, the name of the petitioner appeared at Sl.No.2 and his date of promotion is indicated as 2.8.2016. It is also the case of the petitioner that the name of the private respondent No.4 (Md.Wahid Ali) does not appear in the said seniority list as contained in the letter dated 7.3.2018.
The Commandant General, Home Guards Manipur issued an order dated 6.1.2019 promoting the respondent No.4 to the rank of Battalion Commander and posted as Battalion Commander of Bn.V (Bishnupur) with immediate effect. Further, another order dated 7.1.2019 was issued by the Commandant Home Guards (VA) Manipur promoting the respondent No.4 to the rank of Battalion Commander and posted as Battalion Commander of Bn.V (BPR) with immediate effect. The petitioner being aggrieved with the order dated 6.1.2019 also made a representation dated 16th February, 2019 before the concerned authority requesting for promotion to the rank of Battalion Commander. However, as the said representation was not considered the present writ petition has been filed before this Court.
This Court, by an order dated 18.3.2019 suspended the impugned order dated 6.1.2019. No counter affidavit has been filed by the official respondents as well as by the private respondent No.4 in the present case.
[4] Heard Mr. H.S.Paonam, learned senior counsel appearing for the petitioner in WP(C) No. 17 of 2019, Mr.B.P.Sahu, learned senior counsel appearing for the petitioner in WP(C) No.608 of 2019 and Mr.Kh.Tomba, learned counsel appearing for the petitioner in WP(C) No.240 of 2019.
WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608CAV OF 2021 WITH WP(C) NO. 240 OF 2019 8 Also heard Mr.Shyam Sharma, learned GA appearing for the official respondents in all the writ petitions, Mr.Kh.Tarunkumar, learned counsel for respondent No.4 in WP(C) No.17 of 2019 and Mr.H.S.Paonam, learned senior counsel appearing for the respondent No.4 in WP(C) No.608 of 2019.
[5] Mr. H. S Paonam, learned senior counsel for the petitioner in WP(C) No. 17 of 2019 submits that the promotion of the respondent No. 4 to the post of Battalion Commander by overlooking many eligible higher ranking incumbent lacks rationality and the same has been done based on political interference defying all norms of service jurisprudence. He also submits that the impugned order dated 06-01-2019 was passed on a Sunday even if there was no emergent situation calling upon the respondents to work on holidays. The very action of the respondents would clearly demonstrate that the impugned order was passed for reason which are very obvious. He also submits that the petitioner who is senior to the respondent No. 4 will have to salute the respondent No. 4 who was serving one rank below him. Such illegal act of the respondents will affect the morale of the Home Guards Organization. [6] He has also drawn the attention of this Court to the letter dated 7th March, 2018 wherein, the seniority list of Division Commanders are indicated and submits that the name of the respondent No. 4 does not figure in the said seniority list as the respondent No. 4 is not a paid Division Commander but an unpaid Division Commander. Refuting the stand taken by the State respondents that promotion of the Home Guard are made on the basis of merit cum seniority of Home Guards and there is no hard and fast rule/criteria for rank promotion of Home Guard and their rank promotion is done on the basis of the specific performance, he WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 9 submits that the stand of the State respondents is contrary to the stand taken by the State respondents in WP(C) No. 2005 of 2001 which was filed by one Md. Rashimuddin against the State. Therein, the State respondents had taken a stand that Md. Rashimuddin who was holding the post of Company Commander was given promotion to the rank of Battalion Commander without considering the seniority position of the Company Commander. In WP(C) No. 2005 of 2001, promotion was given to the said Md. Rashimmudin who was holding the post of Company Commander to the rank of Bn. Commander by order dated 14-12-2000 by superseding 8 (eight) Division Commanders and 16 (sixteen) Company Commanders. The same was cancelled by the Government by an order dated 07-04-2001 as irregular. He therefore, submits that the contrary stand taken by the State respondents in WP(C) No. 2005 of 2001 and the stand taken by the present respondents in the present writ petition would clearly indicate that the action taken by the respondents in promoting the present respondent No. 4 to the post of Battalion Commander is whimsical and based on extraneous consideration which cannot stand the test of law.
He has also drawn the attention of this Court to para No. 7 of the counter affidavit filed by the respondent No. 4 wherein it is stated that the respondent No. 4 had repeatedly requested the concerned authority by submitting representation to make his service as paid Division Commander. This clearly indicates admission by the respondent No. 4 that he is an unpaid Division Commander and it is for this reason that his name did not appear in the seniority list as indicated in the letter dated 7th March, 2018. He has placed reliance in the case of Hari Bansh Lal Vs. Sahodar Prasad Mahto & Ors reported in (2010)9 SCC 655 N. Suresh WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 10 Nathan & Anr Vs Union of India & Ors reported in (1992) Supp (1) SCC 584, Sachit Bansal & Anr Vs. Joint Admission Board & Ors reported in (2012)1SCC157, Som Raj & Ors Vs. State of Haryana & Ors reported ini (1990)2SCC 653, S.J.S Business Enterprises (P) Ltd. Vs State of Bihar & Ors reported in (2004)7SCC166, Habibullah Vs. State of Manipur & Ors reported in (2011)3 GLR623.
[7] Mr. Kh. Tarunkumar, learned counsel for the respondent No. 4 raises the issue of maintainability of the present writ petition on the ground that the petitioner has not approached this Court with clean hands. It is stated that the petitioner was appointed as member of the Manipur Home Guards by an order dated 29.9.1986 however, prior to the issuance of the said order there was already an order issued by the Commandant Home Guards (VA) on 17.08.1982 wherein the petitioner along with some other Home Guard members were given their personal numbers against their names. This would indicate that there are two appointment orders of the petitioner. He further submits that there is no illegality in the impugned order dated 06-01-2019 for promoting the respondent No. 4 as Battalion Commander as the same was issued with the approval of the Hon'ble Chief Minister of Manipur who also holds the portfolio of the State Home Department. As such, the question of violation of organizational setup as well as relevant provision of law does not arise. He further submits that the petitioner has to prove the provisions of law or service rule which has been violated while promoting the respondent No. 4 to the post of Battalion Commander by the impugned order dated 06-01-2019. He has also placed reliance on (1) K.D.Sharma Vs Steel Authority of India Ltd & Ors reported in (2008) 12 SCC 481, (2) V.Chandrasekaran & Anr Vs Administrative Officer & Ors reported in (2012) 12 SCC 133 WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 11 and (3) All Manipur Petroleum Products Transporters Assn & Ors Vs State of Manipur & Ors reported in (2004) 3 GLT 726 [8] Mr. B. P Sahu, learned senior counsel for the petitioner in WP(C) No. 608 of 2019 submits that the respondent No. 4 in the present writ petition had filed WP(C) No. 17 of 2019 wherein, this Court passed an order dated 17-01-2019 suspending the order dated 06-01-2019 promoting one Md. Wahid Ali who is the respondent No. 4 in WP(C) No. 17 of 2019. Thereafter, the State respondents appointed the petitioner in WP(C) No. 17 of 2019 to the rank of Battalion Commander and posted as Battalion Commander of Battalion (V) Bishnupur District subject to the outcome of WP(C) No. 17 of 2019.
[9] He also submits that the Commandant, Home Guards (VA) Manipur had written a letter dated 7th March, 2018 addressed to the Additional Director General of Police (HG), Manipur furnishing comments along with present status of Battalion Commanders and Division Commanders of Home Guards. In the said letter, the seniority of Division Commander in respect of the promotion order was given wherein, the present writ petitioner, Md. Abdul Rajak is shown at Sl. No. 1 with his date of promotion as 20-11-2002 and the name of the present respondent No. 4/writ petitioner in WP(C) No. 17 of 2019 is shown at Sl. No. 5. He therefore, submits that when the respondents had prepared the seniority list of Division Commanders as indicated in the letter dated 7th March, 2018, showing the petitioner at Sl. No. 1, the respondents could not have promoted the present respondent No. 4 by the impugned order dated 17-07-2019 even if the same was made subject to the outcome of the WP(C) No. 17 of 2019. He submits that even if the official respondents wanted to fill up the post of Battalion Commander of WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 12 Battalion (V), Bishnupur District, the petitioner should have been considered first as his name appeared at Sl. No. 1 in the seniority list. The action of the respondents is therefore most illegal and arbitrary particularly when the petitioner in WP(C) No. 17 of 2019 had also taken up specific ground stating that promotion/appointment of Division Commander to the post of Battalion Commander is to be done on the basis of seniority. By ignoring the seniority of Division Commanders as indicated in the letter dated 7th March, 2018, the official respondents had proceeded on a pick and choose policy which is not permissible in the eye of law particularly in service jurisprudence. He therefore submits that the impugned order dated 17th July, 2019 be set aside and quashed. Mr. B. P Sahu, learned senior counsel has also placed reliance on Hari Bansh Lal Vs. Sahodar Prasad Mahto & Ors reported in (2010)9 SCC 655, Kumaran Silks Trade (P) Ltd Vs. Devendra & Ors reported in (2006) 8 SCC 555, V. Chandrasekaran & Anr Vs Administrative Officer & Ors reported in (2012) 12 SCC 133, J.S Yadav Vs. State of Uttar Pradesh & Anr reported in (2011) 6 SCC 570 and U.P Jal Nigam & Anr Vs Jaswant Singh & Anr reported in (2006) 11 SCC 464.
[10] Mr. H. S Paonam, learned senior counsel for the respondent No. 4 in the present writ petition who is also the petitioner in WP(C) No. 17 of 2019 submits that the present writ petition is defective for non-joinder of Md. Yakub Ali who was the earlier incumbent of Battalion Commander, Battalion (V) and whose promotion order dated 6-01-2019 was stayed by this Court by order dated 17-01-2019 passed in WP(C) No. 17 of 2019. He also submits that the present petitioner is barred from challenging the order dated 17-07-2019, inasmuch as the petitioner had no grievances against WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 13 the promotion of the said Md. Wahid Ali by the order dated 06-01- 2019. The petitioner is therefore barred from challenging the present order dated 17-07-2019 promoting the respondent No. 4 which is made subject to the outcome of WP(C) No. 17 of 2019. Learned senior counsel also submits that the impugned order dated 17-07- 2019 was issued pursuant to the interim order dated 17-01-2019 passed in WP(C) No. 17 of 2019 which was subject to the outcome of the said writ petition, as such, there is no illegality in the order passed by the State respondents promoting the present respondent No. 4 who is also the petitioner in WP(C) No. 17 of 2019. [11] Mr. Kh. Tomba, learned counsel for the petitioner in WP(C) No. 240 of 2019 submits that the petitioner in the present writ petition is challenging the order dated 6-1-2019 by which the respondent No. 4 is promoted to rank of Battalion Commander by the Commandant General, Home Guards, Manipur as well as the order dated 7-1-2019 issued by the Commandant, Home Guards (VA), Manipur promoting the respondent No. 4 as Battalion Commander. He also endorses the submission of Mr. H. S Paonam, learned senior counsel appearing for the petitioner in WP(C) No. 17 of 2019.
[12] Mr. Shyam Sharma, learned GA appearing on behalf of the State respondents in all the three writ petitions, submits that the term of office for Home Guards is only 3 (three) years as per Rule 7 of Manipur Home Guard Rules, 1996 and as such, there is no hard and fast rule for rank promotion of Home Guard Volunteers. However, as per sub section (2) of Rule 11 of the Home Guard Rules, 1996, post of Section Leader to Division Commander should be appointed from among the members of Home Guards. However, no specific criteria are given in the said rules for rank promotion of WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 14 Home Guards. The rank promotion of Home Guards has been made based on merit cum seniority of Home Guards. As regards the allegation made by the petitioner in WP(C) No. 17 of 2019 that the impugned order dated 06-01-2019 was passed on a Sunday, he submits that the Home Guards are under the Home Department, Manipur and accordingly all the staffs and officials of the office of Commandant General, Home Guards, Manipur are on duties on Sundays too. As such, there is no illegality in the issuance of impugned order dated 06-01-2019 on a Sunday. [13] I have heard the submissions forwarded by the learned counsel for all the parties.
[14] As Mr. Kh. Tarunkumar, learned counsel for the respondent No. 4 in WP(C) No. 17 of 2019 has taken preliminary objection with regard to the maintainability of the writ petition on the ground that the petitioner in WP(C) No. 17 of 2019 has 2 (wo) appointment orders. Accordingly, the issue of maintainability in WP(C) No. 17 of 2019 is taken up first.
Annexure-B/1 annexed to the counter affidavit filed by the respondent No. 4 is an order dated 17th August, 1982 which indicates that members of the Manipur Home Guards (VA) are given their personal number which is shown against their names. On a perusal of the order dated 17th August, 1982, this Court is of the considered opinion that the same is not an appointment order and therefore, WP(C) No. 17 of 2019 is maintainable. [15] This Court after consideration of the impugned order dated 06-01-2019 promoting Md. Wahid Ali, Division Commander to the rank of Battalion Commander as well as Section 6(2) of the Manipur Home Guards Act, 1989, a pointed question was put to the learned GA as to whether the approval of the Home Department was WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 15 taken before issuing the impugned order dated 06-01-2019. The learned GA had thereafter, produced a letter dated 18th January, 2021 written by the Inspector General of Police (Adm) for Director General of Police, Manipur, Imphal stating that no approval was obtained from the Home Department, Government of Manipur before issuing the impugned order dated 06-01-2019. The said letter dated 18-01-2021 is reproduced herein below:
"No. 1/13/2018 (pt-1)-DCG(HG) GOVERNMENT OF MANIPUR POLICE DEPARTMENT Imphal, the 18th January, 2021 "To, Sh. Shyam Sharma, Dy. Government Advocate (HC) Manipur.Subject: W.P(C) No. 17 of 2019
Md. Yakup Ali Vs State of Manipur & Ors Sir, I am to refer to Home Department, Government of Manipur letter No. H-2001/13/2021-HD-HD dated 16/01/2021 and to state that no approval was obtained from the Home Department, Govt. of Manipur before issuing the impugned order dated 06/01/2019.
A copy of the Manipur Home Guard Act, 1989 and Manipur Home Guard Rules, 1996 is enclosed for ready reference.
Yours faithfully (I.K Muivah) Inspector General of Police (Adm) For Director General of Police Manipur, Imphal"
[16] A consideration of the letter dated 18th January, 2021 reproduced herein above would clearly belie the statement made by the respondent No. 4 at para No. 9 of the counter affidavit filed in WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 16 WP(C) No. 17 of 2019 wherein, it is stated that there is no illegality in issuing the order dated 06-01-2019 for promoting the respondent to Battalion Commander, Manipur Home Guard by the Commandant General, Home Guard, Manipur as the same was issued with the approval of the Hon'ble Chief Minister of Manipur who also holds the portfolio of the State Home Department.
On the face of the letter dated 18-01-2021, this Court has no hesitation to come to the conclusion that the impugned order dated 06-01-2018 was issued without the approval of the Home Department and as such, the same is not sustainable in law. [17] The Communication dated 7th March, 2018 written by the Commandant, Home Guards (VA), Manipur, Imphal and addressed to the Additional Director General of Police (HG) Manipur has also been considered by this Court. The extract of the seniority list of Division Commanders in respect of the promotion order as indicated in the letter 7th March, 2018 is reproduced herein below:
" The Seniority List of Division Commanders in respect of their promotion order is given in the table below:-
Sl. No. Hg. No. Rank Name Promotion order and date (1) (2) (3) (4) (5)
1. 816 D.C Md. Abdul No. 1/15/98-Ops-1(HG)6495 Rajak dt. 20/11/2002
2. 291 D.C Md. Tolen No. 1/13/2015-
DCG(HG)12395 dt.02/08/2016
3. 82206 D.C Md. Abdul No.1/13/2015-
Salam DCG(HG)12395dt..02/8/2016
4. 79179 D.C S. No.1/13/2015-
Sanatomba DCG(HG)12395dt.02/8/2016
Singh
WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608
CAV
OF 2021 WITH WP(C) NO. 240 OF 2019
17
5. 78015 D.C Md. Yakup No. 1/132015-
Ali DCG(HG)12754dt09-08-2016
6. 79122 D.C Md. Basir No.1/13/2015-
Ahamad DCG(HG)12395DT.02/8/2016
7. 94071 D.C Y. Tejmala No.1/13/2017-
Devi DCG(HG)5027dt.11/5/2017
8. 841566 D.C Th. Ingocha No.1/13/2017-
Singh DCG(HG)3514dt.18/5/2018
The aforesaid letter dated 7th March, 2018 is annexed in all the three writ petitions. A perusal of the seniority list would clearly indicate that the name of the petitioner in WP(C) No. 608 of 2019 is placed at Sl. No. 1. The petitioner in WP(C) No. 240 of 2019 is placed at Sl. No. 2 and the petitioner in WP(C) No. 17 of 2019 is placed at Sl. No. 5. The name of the respondent No. 4 in WP(C) No. 17 of 2019 and WP(C) No. 240 of 2019 namely, Md. Wahid Ali does not appear in the said list. When the respondents had prepared the seniority list of Division Commander, it is expected that the said seniority list should be considered prior to making the promotion to the post of Battalion Commander. However, it appears that the said seniority lists had been given a complete go by by the respondents and have promoted the respondent No. 4/Md. Wahid Ali in WP(C) No. 17 of 2019 to the post of Battalion Commander and that too when his name did not figure in the seniority list. [18] At this stage, it would be relevant to consider the affidavit-in-opposition filed by the State respondents in WP(C) No. 2005 of 2001 which has been annexed in the rejoinder affidavit of the petitioner to the affidavit-in-opposition of the official respondents in WP(C) No. 17 of 2019. In the said counter affidavit filed in WP(C) No. 2005 of 2001 at para No. 6 therein, it has been stated that the WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 18 petitioner in WP(C) No. 2005 of 2001 was promoted to the post of Battalion Commander without considering the seniority position of the petitioner and without prior approval of the Commandant General, Home Guards or of the State Government concerned. Accordingly, the State Government was of the opinion that giving out of turn promotion to the petitioner by superseding 8 (eight) Division Commanders and 16 (sixteen) Company Commanders are improper and illegal and therefore, the State Government has issued the order dated 07.04.2001 cancelling the promotion order dated 14th July, 2000. The affidavit-in-opposition of the respondent Nos. 1 to 3 passed on the present writ petition is contrary to the stand taken by the respondents in WP(C) No. 2005 of 2001 inasmuch as it has been stated that the rank promotion of Home Guards have been made based on merit cum seniority of Home Guards and that there is no hard and fast rule/criteria for rank promotion of Home Guards and their rank promotion is done on the basis of their satisfactory performance i.e., merit cum seniority. Such contradictory stand of the official respondents would clearly indicate that they have been promoting members of Home Guard Organization at their own whims.
In the present case, the promotion of the respondent No. 4 who is an unpaid Division Commander and whose name does not appear in the seniority list as contained in the letter dated 7th March, 2018 is found to be highly illegal by this Court. [19] Rule 6 of the Home Guards Act, 1989 is reproduced herein below:
"6. Appointment of Home Guards and certificate of appointment etc. -(1) Subject to the approval of the Commandant General, the Commandant may appoint as members of the Home Guards such number of persons who are fit and willing to serve as may from time WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 19 to time be determined by the State Government and may appoint any such member to any office of command in the Home Guards. (2) Notwithstanding anything contained in sub-section (1) the Commandant General may, subject to the approval of the State Government, appoint, any such member to any post under his immediate control."
[20] Rule 6 (2) provides that notwithstanding anything contained in sub-section (1) the Commandant General may, subject to the approval of the State Government appoint, any such member to any post under his immediate control. A perusal of the impugned order dated 06-01-2019 in WP(C) No. 17 of 2019 as well as letter dated 18th January, 2021 would clearly indicate that rule 6 (2) of the Manipur Home Guard Rules, 1989 has been violated. [21] Manipur Home Guards Rules, 1996 has also been considered by this Court, particularly Rule 7 and 11 of the said rules. In the said rules of 1996, there is no provision for appointment to the post of Battalion Commander. At this stage, it is pertinent to mention that this Court has also taken cognizance of the letter dated 22nd January, 2021 written by the Additional Director General of Police, (HG), for Director General Police, Manipur and addressed to the Deputy Secretary (Home), Government of Manipur whereby, parawise comments were submitted vide letter dated 21st January, 2021. At para No. 1 of the letter dated 21-01-2021, it is indicated that the service conditions of the Home Guard Volunteers are indicated by the Manipur Home Guard Rules, 1996 and the names of different ranks of Home Guard Volunteers are mentioned at Rule 11 and in that the name of rank of Battalion Commander is not mentioned. It is also written that the Commandant General, Home Guards, Manipur by letter dated 06-10-2010 addressed to the Additional Secretary, (Home), Government of Manipur recommending for amendment of the Manipur Home Guards Rules for inclusion of the rank of Battalion WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 20 Commander in different ranks of the Home Guard volunteers. The said proposal is still pending with the State Government and apparently, the appointment of the existing Battalion Commander has been made from time to time by the State Government to meet the administrative requirements of the organization. This letter dated 21st January, 2021 has great significance to the present case in hand where it is clearly indicated that the appointment of the existing Battalion Commander are being made from time to time by the State respondents to meet the administrative requirements of the Organization.
[22] The impugned order dated 6th January, 2019 promoting the respondent No. 4 in WP(C) no. 17 of 2019 to the post of Battalion Commander was made by the Commandant General, Home Guards, Manipur, Imphal. The same is not issued by the State Government. Further, in the endorsement in the impugned order dated 6th January, 2019, copies are given only to the Additional Director General of Police (HQ), Superintendent of Police, Bishnupur District, the Commandant, Home Guards (VA), Lamphelpat, Person concerned and File. No copy was furnished to the State Government. On this ground too, this Court is of the considered opinion that the impugned order dated 6th January, 2019 stands vitiated.
[23] Coming to WP(C) No. 608 of 2019, the short question that has to be considered by this Court is whether the impugned order dated 17th July, 2019 by which the petitioner in WP(C) No. 17 of 2019 was appointed to the rank of Battalion Commander and posted as Battalion Commander of Bn-V Bishnupur District is sustainable in law. A perusal of the impugned order would indicate that the same is made subject to the outcome of WP(C) No. 17 of WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 21 2019. However, while issuing the said impugned order dated 17th July, 2019, the seniority list of Division Commanders as indicated in the letter dated 7th March, 2018 also appears to have been ignored while considering the case of the petitioner in WP(C) No. 17 of 2019 for promotion to the rank of Division Commander. Accordingly, the impugned order dated 17th July, 2019 also stands vitiated. [24] As discussed herein above and on a consideration of the facts and circumstances of the case, the impugned orders dated 6th January, 2019 and 7th July, 2019 in WP(C) No. 17 of 2019 and WP(C) No. 240 of 2019 are set aside and quashed. Further, the impugned order dated 17-07-2019 promoting the petitioner in WP(C) No. 17 of 2019, Md. Yakub Ali to the post of Battalion Commander subject to the outcome of WP(C) No. 17 of 2019 is also quashed and set aside.
[25] The matter is now remitted back to the respondents particularly Commissioner/Secretary/ Principal Secretary, (Home), Government of Manipur to take a conscious decision for filling up the post of Battalion Commander of Bishnupur District in accordance with law and also taking into consideration the observations made by this Court in the foregoing paragraph. While taking the decision, the respondents are also directed to take into consideration the letter dated 7th March, 2018 written by the Commandant, Home Guards (VA), Manipur and addressed to the Additional Director General of Police (HQ), Manipur wherein, the seniority list of Division Commanders in respect of promotion orders are indicated. The respondents are also directed to fill up the post of Battalion Commander by taking into consideration all eligible candidates including the petitioners in all the three writ petitions and thereafter, WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019 22 pass final orders within a period of one month from the date of receipt of a copy of this order.
With the above observations and directions, all the three writ petitions stands disposed of. No costs.
JUDGE FR/NFR priyojit/kim Digitally signed by CHONGNUNKIM GANGTE CHONGNUN DN: c=IN, o=High court of manipur, ou=HIGH COURT OF MANIPUR, pseudonym=9e33b348bf6bf41a7b7d571fef6452 45e9c315df39f93d9f997f6f6825f03026, KIM GANGTE postalCode=795002, st=MANIPUR, serialNumber=3c25b417b8ab4f2e15488e6a09fe0 04b75d3e17ee1aa64940e881eed05f8ce66, cn=CHONGNUNKIM GANGTE Date: 2021.08.16 15:33:57 +05'30' WP(C) NO. 17 OF 2019 WITH WP(C) NO. 608 CAV OF 2021 WITH WP(C) NO. 240 OF 2019