Singh Vs. L. Priyokumar Singh & Ors  Insc 280 (5 May 2006)
Sinha & P.P. Naolekar
Appeal Nos.2133, 2132, 2128-2131 and 8510-8513 of 2001 S.B. SINHA, J :
appeals involving common questions of law and fact were taken up for hearing
together and are being disposed of by this common judgment.
case has a chequered history. We would, however, note the factual matrix of the
matter, from C.A.Nos.2126-2127 of 2001. The appellant was appointed as a
Section Officer, Grade-I (Elect.). He was promoted to the post of Assistant
Engineer (Elect.) on an ad-hoc basis on 5.2.1980. By a Government order dated 30th September, 1985, on recommendations of Departmental
Promotion Committee (DPC), the appellant was appointed as an Assistant Engineer
on officiating basis w.e.f. 15.7.1085. The State, in supercession of the said
order, promoted him as an officiating Assistant Engineer (Elect.) on a SC/ST
reserved seat. A tentative seniority list was published in the year 1991
wherein his name was not included, presumably on the basis that his services
had not been regularised. His services were, however, regularised w.e.f.
29.8.1992, but no retrospective effect thereto was given, whereupon he filed a
writ petition before the Gauhati High Court. A learned Single Judge of the said
court by an order dated 27.11.1992 directed the State Government to regularise
his ad-hoc and/or officiating service w.e.f. 5.2.1980. The said direction was
complied with by the State by issuing Government order dated 3.2.1993, in terms
whereof the services of the Appellant were regularised with retrospective
effect, i.e., w.e.f. 5.2.1980. It stands admitted that the said order dated
27.11.1992 was passed following a Division Bench decision of the said court
dated 23.3.1992 passed in C.R.No.586/91 in the matter of one Kh. Ningthemjao
Singh, who is also an appellant before us, wherein directions were issued in
the following terms:
Considering the submission made by the learned counsel for petitioner as well
as the learned Govt. Advocate and after going through the judgment of the
Division Bench of this Court passed in civil Rule No.586/91, I dispose of the
petition with the direction to regularise the petitioner's services with effect
from the date of his initial adhoc appointment i.e. 5.2.1980. The seniority of
the petitioner shall be determined in accordance with the rules and in the
absence of such rules as per Govt. instructions and in the light of the
judgments of the Apex
Court as well as of
this Court." He thereafter filed a representation for determination of his
seniority. As the question of seniority was pending before the High Court at
the instance of some other officers, the appellant herein also filed a Writ
Petition claiming similar reliefs which was marked as C.R.No.226/93.
tentative Seniority List was published on 30.6.1994 wherein he was shown at
Serial No.7. He filed a representation claiming that his seniority be reckoned
from the date of his regularisation. A final Seniority List was published on
6.5.1995 wherein his position was shown as Serial No.49. According to the
appellant, his name should have appeared at Serial No.13 of the seniority list.
A writ petition was again filed by him praying for quashing of the final
Seniority List and for determining his seniority from the date of regularisation,
which was marked as C.R.No.308/95.
interim orders were passed therein. The said interim orders came to be vacated
by an order dated 4.10.1996, but it was made clear that any promotion to the
post of Executive Engineer (Elect.) made during pendency of the said writ
petition shall be only on officiating basis and subject to the results of the
three writ petitions pending before the High Court thence. The State thereafter
promoted 15 Assistant Engineers to the post of Executive Engineer on ad-hoc
basis which appointments were later on directed to be on officiating basis.
judgment and order dated 16.5.1997, the learned Single Judge allowed four Writ
Petitions being C.R.Nos.308/95 and 916/95 filed by the appellant, N. Biirendra
Singh, C.R.No.929/95 filed by Kh. Manglemtomba Singh, C.R.No.345/95 filed by Kh.
Ningthemjao Singh and C.R.No.320/90 filed by the Association, whereby the said
final Seniority List dated 6.5.1995 was quashed and the State was directed to
determine the question of seniority from the date of regularisation of the
petitioners therein in the post of Assistant Engineers stating:
am, therefore, of the view that the seniority list is required to be prepared
afresh counting the seniority of the petitioners from the date of regularisation
of their services in the post of Asst. Engineers. Consequently, the final
seniority list Annexed-A/12 of C.R. 345/95 is required to be cancelled.
Accordingly, the final seniority list of the Asst. Engineers published by the
Govt. on 6.5.1995 Annexure-A/12 is hereby quashed.
is directed to prepare a fresh seniority list of the Asst. Engineers counting
the services of the petitioners from the date of their regularisation in the
post of A.E. The State Govt. is, further, directed to work out the vacancies
for the post of Asst.
in the Electricity Department and thereafter absorb the petitioners in the
vacant posts available under promotion quota and count their seniority from
that date. The year in which vacancy under promotion quota is available, the
petitioners should be absorbed in those years and seniority will count from
that date." Writ appeals thereagainst were filed by the State as also by
the affected employees.
Division Bench of the High Court while admitting the said Writ Appeals passed
an order of status quo. However, during pendency of the said Writ Appeals the
services of the 15 Executive Engineers, who were appointed on officiating
basis, were regularised. The Division Bench of the High Court, however, while
upholding the judgment and order passed by the learned Single Judge and
dismissing the appeals, in paragraph 21, directed that:
"Though we have dismissed the
appeal, yet it is made clear that things like further promotion etc. already
made in accordance with R.R. on the basis of that seniority list quashed shall
not be reopened. Promotions if made on adhoc basis, at the time of regularisation
of such promotions the cases of the persons who come ahead of such promotees
after refixation of seniority shall also be considered if they come within the
zone of consideration being otherwise eligible.
promotions on the basis of seniority list quashed shall not be regularised
without refixation of seniority. This judgment shall not be used as a handle by
the writ petitioners for another round of litigation to claim further benefit
etc. on the principle of "next below rule". Things shall be allowed
to rest as if on this count. We are constrained to give this direction as the
learned Single Judge almost opened a Pandora's box giving direction to fix
seniority from 1979-80 which will make the situation topsy turvy. That is not
the function of the writ Court. A writ court must not behave like a horned bull
in a china clay shop. The seniority shall be refixed by the authority within 6
months from the date of the judgment by adhering to Rules and directions of
this court by inviting objections from all who will be affected by such redetermination.
The writ court being a court of equity at the time of moulding the relief can
put the parties to terms to make it just, proper and workable. Justice does not
turn up bottom side up. We must bear in mind that our justice delivery system
is a human institution, created by human agents to serve human ends and in
doing so always we must strike a balance in such a manner that our decision
should not usually be an attempt to touch a hornet's nest to create further
complications and problems that should be avoided as far as possible." Civil
Appeal Nos.2126-2127/2001 has been filed by N. Birendra Singh, Civil Appeal
No.2132/2001 has been filed by Kh. Ningthemjao Singh and Civil Appeal
No.2133/2001 has been filed by Kh. Manglemtomba Singh questioning that part of
the judgment. Civil Appeal Nos. 2128-2131/2001 has been filed by the State of Manipur against the judgment of the
Division Bench dismissing the said appeals. One L. Priyokumar Singh, who,
however, had already been promoted as Executive Engineer and who had filed a
writ petition questioning the inter-se seniority of the employees appointed,
has also filed an appeal separately which is marked as Civil Appeal
Nos.8510-8513 of 2001.
short question raised in these appeals by the learned counsel appearing on
behalf of the appellants is that the Division Bench having dismissed the
appeals by a judgment and order dated 4.1.2000 preferred from the judgment and
order dated 16.5.1997 passed by the learned Single Judge could not have issued
the afore-mentioned directions.
Janani, learned counsel appearing on behalf of the State of Manipur and Mr.
S.K. Bhattacharya, learned counsel appearing on behalf of private respondents,
on the other hand, would draw our attention to two orders dated 20th August,
1990 and 4th January, 2000 passed by the Division Bench of the said Court and
submitted that although, the Division Bench, while allowing the writ petitions
filed by the Assistant Engineers praying for their regularisation with
retrospective effect directed that they be given appropriate seniority, on that
basis, however, on an application for modification having been filed before the
said court, directed that:
far as the service benefits as enumerated in general terms in the operative
portion of the order as reproduced above, it shall not include conferring
benefit of seniority inter-se seniority of the Asstt. Engineers is governed by
rules. While the other monetary and post retirement benefits, remain unaffected
the word "seniority" appearing in the operative portion of the order
is deleted, which shall be governed and determined in accordance with the
existing rules taking into consideration the case of others as well." An
application has been filed for bringing additional facts and documents on
record on behalf of respondent Nos.3, 6, 7, 8 and 10, wherein an order dated
27.2.1998 passed in Writ Appeal No.154/97 and other connected appeals, while
setting aside the orders of the learned Single Judge dated 18.3.1997 and
21.5.1997, it was directed to fill up 20 vacant posts on regular basis stating:
has been submitted by Mr. A. Nilamani Singh that as of now, there are about 20
vacancies in the grade of Executive Engineer, Electricity to be filled up on
regular basis. If that is so, the respondents are now directed to fill up those
posts on regular basis within a period of 2 (two) months from the date of
receipt of this order. Submission has also been made by Mr. B.I. Sharma that
his client Shri B. Sisirkumar Sharma would be retiring sometime in the month of
August, 1998. This would also be a ground why the respondent should not fill up
the posts on regular basis expeditiously." The learned counsel appearing
on behalf of the respondents contended that the cases of the appellants Kh. Ningthemjao
Singh and Kh. Manglemtomba Singh had been considered by the departmental
promotion committee as they fell within the zone even without taking into
consideration the date of regularisation with retrospective effect, but they
have not been found suitable therefor.
counsel appearing on behalf of the State, however, pointed out that the
appellant N. Birendra Singh had been given all the benefits due to him and the
State would furthermore give him all the monetary benefits treating him to have
been regularised in the post of Assistant Engineer w.e.f. 5.2.1980. It was
pointed out that as the minimum qualification required for promotion to the
post of Superintending Engineer is Degree in Bachelor of Engineering, both, N. Birendra
Singh and Kh. Manglemtomba Singh, being only diploma-holders, cannot be considered
for promotion to the post of Superintending Engineer.
not in dispute that the post of Executive Engineer is a selection post.
however, may not go into the question of correctness or otherwise of the
opinion of DPC held in 1998 finding the appellant K. Ningthemjao Singh and Kh. Manglemtomba
Singh unsuitable for promotion to the post of Executive Engineer, as the writ
petitions are pending before the Guwahati High Court in relation thereto. It
has further been brought to our notice that some of the appellants have already
been promoted to the post of Superintending Engineer. L. Priyokumar has been
promoted as Superintending Engineer on 2.9.1995, whereas Ng. Sarat Singh has
been promoted on 10.2.2006. T. Raghumani Singh, however, has not been promoted.
Kh. Ningthemjao Singh is said to have retired from service.
grievances of the appellants appear to be that although they were eligible for
being promoted to the post of Assistant Engineer on regular basis in October,
1976, their cases have been ignored. Further more, despite their regularisation,
the State had failed to take into account the period between the date on which
they were appointed on ad-hoc basis and regular basis for the purpose of
reckoning their seniority.
adverting to the other contentions raised in these appeals, we must, at the
outset, observe that the Division Bench of the High Court committed a manifest
error in making observations as against the learned Single Judge as contained
in paragraph 21 of the impugned judgment.
have noticed hereinbefore that the judgment and order passed by the learned
Single Judge was found to be correct by the Division Bench. The appeals
preferred by the State and the other respondents herein were dismissed. If the
judgment and order passed by the learned Single Judge was correct, in our
opinion, there was no occasion for the Division Bench to issue certain
directions in terms whereof the appellants herein were deprived of the benefit
of the judgment and order of the learned Single Judge indirectly, which could
not have been done directly. If the Division Bench was of the opinion that in
passing his order the learned Single Judge has not taken into consideration
certain aspects of the matter and, in particular, some orders which were relevant
for determination of the issue, the Division Bench could have said so and dealt
with the same appropriately. It did not. It is a trite law that what cannot be
done directly, cannot be done indirectly. The Division Bench, in making
observations and issuing directions in paragraph 21 of the impugned judgment,
sought to do the same, which was impermissible in law. If the Division Bench
was of the opinion that the learned Single Judge has committed mistakes in
issuing the directions, it could interfere therewith by assigning appropriate
and cogent reasons therefor. The observations made and directions issued by the
Division Bench do not contain any reason as to how and in what manner the
learned Single Judge went wrong in passing his judgment.
order dated 25th
November, 1994 passed
by a Division Bench of the said Court in C.M.A.No.352/93, appears to have been
passed on an application for modification of an order dated 20th August, 1990 passed by another Division Bench of
the said Court in C.R.No.819/88/322/88/90. We are not aware as to what was
those writ petitions about. However, we would proceed on the premise that the
said order had direct bearing with the order of the learned Single Judge dated
27.11.1992 passed in favour of the appellants. That Division Bench in its order
dated 20th August, 1990, held:
Pramod Singh, learned Govt. Advocate has an apprehension that, if no post was
available, regularisation may create problem. We see no force in the above
submission inasmuch as, by giving retrospective effect to the order of regularisation,
the petitioner shall be entitled to the benefit of counting the entire period
of service for pay, i.e. increment, seniority, pension and other pensionary
benefit." The application for modification was filed by the employees who
were not parties to the said proceeding.
of the said applicants appear to be appellants before us. By reason of the said
order, a modification was directed to be made only to the effect that the
seniority of the concerned Assistant Engineers, in terms of order of regularisation,
shall be considered in terms of the Rules and not in terms of the order passed
by the Division Bench. We fail to appreciate the difference between the two
inasmuch as the apprehension expressed by some of the Assistant Engineers that
the services of the writ petitioners were directed to be regularised with
retrospective date, i.e., on the date when they were appointed on ad-hoc basis,
they would have a march over the other employees, was wholly misconceived. When
the earlier Division Bench spoke of seniority amongst the Assistant Engineers,
not only the same was required to be determined in terms of the rules, there
was no question of the writ petitioners gaining a march over the other
employees similarly situated or who were otherwise senior to them. Even
otherwise, the learned Single Judge in his order dated 27.11.1992 exactly did
so stating that "..the seniority of the petitioner shall be determined in
accordance with the rules and in the absence of such rules as per Government
instructions and in the light of the judgments of the Apex Court as well as of this Court."
What was, therefore, directed to be obeyed was the law operating in the field.
reason thereof, the Division Bench and consequently, the learned Single Judge
never meant that despite the fact that the appellants were held to be entitled
to the benefit of regularisation in service with effect from the date on which
they were appointed on an ad-hoc basis, the concerned respondent herein would be
deprived of their seniority to which they were otherwise entitled to in law.
Application Nos.9 and 10 of 2005 filed on behalf of respondent Nos.3, 6, 7, 8
and 10 have not been moved and no order has been passed thereupon. We, at this
stage, cannot rely on the contents of the said applications. The contentions of
the said applications do not appear to have been brought on record before the
High Court. The question which arose for consideration therein appear to be
confined to fixation of pay and allowances in terms of Fundamental and
Supplementary Rules. It was held that they had been holding substantive post of
Assistant Engineer and they were on current charge of Executive Engineer and as
such, they were not entitled to the pay and allowances to the post of the
Executive Engineer in terms of F.R. 49. If some observations have been made
therein having regard to the submissions made by a counsel for a party, the
same would not mean that the right of those who were not parties thereto, would
be affected thereby. Reliance placed on the judgment and order dated 20.8.90
is, thus, not tenable.
appreciate the anxiety on the part of the State that if the entire seniority
list is directed to be reopened, it may give rise to many more litigations. It
must think itself therefor. But it is the State alone who is responsible for
such a situation. The appellants herein have been pursuing their remedies under
the law. They had been granted relief as orders were passed in their favour.
The said order, admittedly, attained finality, and thus, cannot be reopened.
thus, too late in the day for the State now to urge that the promotions granted
to some of the appellants herein in the post of Assistant Engineer (Elect.)
were not in accordance with law. Such a contention is barred under the
principle of res judicata.
are, therefore, of the opinion that having regard to its own conduct, the State
of Manipur now cannot be heard to say that
this Court should uphold the impugned judgment of the Division Bench, although,
in law the same is impermissible. We decline to do so. We, therefore, while
setting aside the observations and directions issued by the Division Bench in
paragraph 21 of the impugned judgment, place on record the concession made by
the learned counsel appearing on behalf of the State that the appellant, N. Birendra
Singh, would be given all monetary benefits w.e.f. 5.2.1980. We do not find any
merit in the appeal preferred by the State. As the learned Single Judge has
directed the State to implement its own order, the legal consequences of the
said order must ensue and if by reason thereof the concerned appellants had
derived certain benefits, there is no reason for us to deprive them therefrom
only because the State may feel some difficulty otherwise.
result, Civil Appeal Nos.2128-2131 of 2001 preferred by the State are dismissed
and other connected appeals filed by the appellants herein are allowed. The
writ appeals are disposed of with the aforementioned observations and
regard to the fact that some of the writ petitions questioning the order of
promotion and seniority are pending consideration before the High Court, we
would request the High Court to consider the desirability of disposing of the
matters as expeditiously as possible.
facts and circumstances of the case, the parties shall bear their own costs.