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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.6783 OF 2015 (Arising out of S.L.P.(Civil) No.35459 of 2013)

KSH. LAKSHAHEB SINGH  AND OTHERS         …..Appellant(s)

versus

STATE OF MANIPUR AND OTHERS      ..Respondent(s)

WITH CIVIL APPEAL NO.6784 OF 2015

(Arising out of S.L.P.(Civil) No.21904 of 2014)

LAISHRAM GOKULCHANDRA  SINGH AND OTHERS …Appellant(s)

versus STATE OF MANIPUR AND OTHERS      ..Respondent(s)

WITH CIVIL APPEAL NO.6785 OF 2015

(Arising out of S.L.P. (Civil) No. 21910 of 2014)

LAIRIKYENGBAM TAMOCHA ROY  AND OTHERS …..Appellant(s)

versus STATE OF MANIPUR AND OTHERS ..Respondent(s)

JUDGMENT M. Y. EQBAL, J.  

Leave granted.

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2. The appeal arising out of S.L.P.(Civil) No.35459 of 2013 is

directed  against  the  Judgment  and order  dated 25.09.2013

passed by the learned Single Judge of High Court of Manipur,

who disposed of the writ petition preferred by the appellants

seeking quashing of the letter dated 02.02.2013 issued by the

Department  of  Personnel  &  Administrative  Reforms,

Government  of  Manipur  to  the  Manipur  Public  Service

Commission to initiate the process for direct recruitment to

the  post  of  Assistant  Engineers  in  the  Public  Health

Engineering Department, Government of Manipur.

3. The facts of the case in brief are that the appellants are

Master  Degree/Degree  Holders  serving  in  the  Public  Health

Engineering Department as Section Officers Grade-I.  The next

higher  promotional  post  for  them  is  the  post  of  Assistant

Engineer, which is to be filled up in terms of the recruitment

rules  known  as  PWD,  IFCD and  PHED,  Manipur  Assistant

Engineer  (Civil/  Mechanical)  /Assistant  Surveyor  of  Works

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Recruitment Rules, 2009 (in short “Rules of 2009”).   As per

the aforesaid recruitment rules, 60% of the posts of Assistant

Engineers are to be filled up by promotion and the remaining

40% by direct recruitment. As regards the 60% promotional

quota, 50% of the vacancies thereof are to be filled by Degree

Holders Section Officers Grade-I  and the remaining 50% by

Diploma Holders and others.  

4. It has been pleaded that due to certain financial crunch

faced  by  the  State  Government  in  the  past,  the  State

Government took a policy decision in the year 1999 by which a

total  ban  was  imposed  on  appointment  under  direct

recruitment  quota.  Thereafter,  the  State  Government,

considering  the  continuing  acute  financial  condition  of  the

State Government, issued an order on 19.03.2001 by which all

appointments made on part-time, contract, adhoc, substitute,

casual basis, etc. on direct recruitment were to be terminated

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and various Government Departments were also subjected to

downsizing of staffs.  

5. Before the High Court, the writ petitioners pleaded that

although there were 27 vacancies in the grade of  Assistant

Engineer in the Public Health Engineering Department most of

which were to be filled up by promotion, the office of the Chief

Engineer,  PHED,  Manipur  vide  his  letter  dated  29.8.2012

submitted  a  proposal  to  the  Principal  Secretary  (PHE),

Government of Manipur for filling up 25 of the vacant posts by

way of direct recruitment.   The writ petitioners contended that

till  the  ban  is  lifted  on  direct  recruitment,  the  Department

cannot proceed to initiate any action for filling up the vacant

posts by direct recruitment and as such, the aforesaid action

on the part of the authorities to fill up the vacant posts by way

of  direct  recruitment  is  not  permissible.    It  has  also  been

contended on behalf  of  the appellants that as per the office

memorandum dated 29.4.1999 issued by the Department of

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Personnel  &  Administrative  Reforms,  Personnel  Division,

Government of Manipur the vacancies are to be filled up on

year wise basis and quota for promotion vis-à-vis the direct

recruitment is to be worked out on year wise basis.  It has

been  further  pleaded  that  those  vacancies  which  became

available prior to the enforcement of the Rules of 2009 for the

Assistant Engineers i.e. 29.7.2009 cannot be counted in the

determination of number of  vacancies for direct recruitment

quota. According to them, the number of vacancies for direct

recruitment quota under the 2009 Rules should be calculated

on the basis of vacancies available after 28.7.2009. However,

the authorities have not followed any norm for determination

of vacancies to the post of Assistant Engineer which are to be

filled up by way of direct recruitment.   

6. After hearing learned counsel on either side and perusing

a copy of  the Government order dated 12.8.2013 placed on

record by the learned Govt. Advocate appearing for the State,

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which showed that the Government of  Manipur had relaxed

the ban on direct recruitment partially in respect of  certain

services/posts  including  the  post  of  Assistant  Engineer  for

Power/Works/PHE/IFC departments, learned Single Judge of

the  High  Court  disposed  of  the  writ  petition  observing  as

under:

“Since  the  Government  has  already  taken  a decision  as  evident  from  the  order  dated 12.8.2013  for  lifting  the  ban  on  direct recruitment partially in respect of certain posts including  the  post  of  Assistant  Engineer  for Public  Health  Engineering  Department,  the action taken by the Department for filling up the vacancies  in  the  grade  of  Assistant  Engineer against  direct  recruitment quota as mentioned in the impugned letter dated 02.02.2013 cannot be faulted with and accordingly, no writ can be issued to set aside/ quash the impugned letter dated  02.02.2013.  However,  as  regards  the actual  number  of  vacancies  to  the  post  of Assistant  Engineer  in  the  Public  Health Engineering Department which may be filed up by  direct  recruit,  it  is  clarified  that  the  State authorities would re-examine the exact number of  vacancies  falling  under  direct  recruitment quota  before  any  appointment  is  made  to  the post  of  Assistant  Engineer  in  terms  of  the recommendation of the Manipur Public Service Commission on direct recruitment quota, so that any vacancy, which otherwise would fall under the  promotion quota is  not  filled  up by direct recruitment. Accordingly, if any appointment is made  under  the  direct  recruitment  quota  in excess of the direct recruitment quota as per the

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relevant  recruitment  rules,  the  petitioners,  if aggrieved, would be at liberty to approach this Court again.”

7. Aggrieved by the decision of  the High Court,  the three

writ petitioners preferred this appeal by special leave.  While

issuing notice in the matter on 29.11.2013, this Court directed

that the result of the selection shall remain pending subject to

final  decision  of  the  special  leave  petition.   Thereafter,

respondents-State moved an interlocutory application being IA

No.1/2014  for  vacating  stay,  upon  which  learned  senior

counsel  on  both  sides  were  heard  and  following  order  was

passed by this Court on 3.7.2014:

“Our  order  dated  29.11.2013  is  modified  to  the following extent:

1) The State shall be free to fill up the vacancies advertised  in  the  direct  recruitment  quota subject  to  the  condition  that  three  out  of such vacancies are left unfilled.

2) Appointment  against  the  advertised vacancies, if any, shall remain subject to the ultimate outcome of these proceedings.

3) Appointment  orders  issued  to  the  selected candidates  shall  specifically  mention  that their  appointments  are  subject  to  the outcome of this petition.

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   Post the petition for final disposal after six weeks.  Counter  affidavits  and  rejoinder,  if any, be filed in the meantime if not already filed.”

8. Other  Section  Officers  Grade-I  also  preferred  writ

petitions before the High Court with a prayer for direction to

the respondents to keep posts vacant for the writ-petitioners.

Upon this prayer, learned Single Judge of the High Court on

25.7.2014 observed that it  would not be appropriate on the

part of the High Court to direct that some post be kept unfilled

and, therefore, refused to pass any interim order except that

any  appointment  made  in  pursuance  of  the  advertisement

shall be subject to outcome of the writ application.

9. Aggrieved by the decision of the High Court to not grant

interim order, aforesaid two groups of Section Officers Grade-I

are also before us by way of appeals under Article 136 of the

Constitution.  We have heard learned counsel appearing for

the parties at length.

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10. Mr.  P.P.  Rao,  learned  counsel  appearing  for  the

appellants, made the following submissions:  

(I) The  statutory  Recruitment  Rules dated 27.07.2009 and the Rules in force even  earlier  mandate  that  60%  of  the vacancies shall be filled by promotion and 40% by  direct  recruitment  and  not  the posts  in  the  cadre.  But  the  Chief Engineer, the Government and the Public Service  Commission  have  applied  the quotas to the 'cadre strength' of Assistant Engineers and not to the vacancies which is contrary to the statutory rules.  

(II) The  respondents  herein  have  not only  applied  the  quota  to  the  cadre strength as stated above but also carried forward almost all  the vacancies on the erroneous  supposition  that  they  are meant for direct recruitment and filled up 22 out of the 27 accumulated vacancies by  direct  recruitment  subject  to  the outcome  of  the  SLP,  keeping  three vacancies for the appellants in terms of the interim order. This is a clear violation of  not  only  the  statutory  rules  and administrative  instructions  but  also Articles 14 and 16(1) of the Constitution.  

(III) According to Mr. Rao, learned Senior Counsel  for  the  appellants,  the  quota prescribed  for  promotion  and  direct recruitment  will  apply  to  vacancies  and not to posts in the cadre.

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(IV) For the last 30 years, there is not a single  promotion  given  to  candidates eligible  for  promotion  as  Assistant Engineers. An officer should get at least two promotions in his career as per law declared  by  this  Court.  But  the respondent-Government  has  acted  most arbitrarily  by  allowing  stagnation  of officers eligible for  the post of  Assistant Engineer for the last 30 years in violation of  Articles  14  and  16(1)  of  the Constitution.  

(V) The High Court failed to decide the issues arising in the Writ  Petitions.  The impugned  judgment  is  liable  to  be  set aside. This Court may be pleased to grant special leave, allow the appeals and direct the respondents to fill up the vacancies of 2007, 2009, 2010 and 2012 by promotion with  retrospective  effect  and  fill  the remaining  vacancies  according  to  the respective quotas i.e. 60% by promotion and 40% by direct recruitment.  

11. On the other hand, Mr.  Jaideep  Gupta,  learned  senior

counsel appearing for the respondent-State, firstly drawn our

attention to the operative portion of the impugned judgment

and submitted that  the appellants raised only one question

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before  the  High  Court  which  has  been  decided  by  the

impugned judgment.  

12. Mr.  Gupta,  learned  counsel,  denied  the  submissions

made by Mr.  Rao,  learned senior  counsel  appearing for  the

appellants  that  no  promotions  have  been  given  to  the

candidates eligible for promotion for the last 30 years.  He also

denied that there is stagnation in the service inasmuch as the

appellants  and  other  similarly  situated  persons  have  been

granted benefits under the ACP scheme.  

13. In  course  of  arguments,  Mr.  Gupta,  learned  senior

counsel,  submits  that  still  there  are  16 vacancies  available

against the promotion quota and the appellants come within

eight  in  the  seniority  list.  They  shall  automatically  get

promotion.   Having regard to the fair  submissions made by

Mr.  Gupta,  learned counsel,  we do not  want to go into the

question raised by Mr. Rao, learned counsel appearing for the

appellants.

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14. As notice above, Mr. Gupta, learned counsel, very fairly

submitted  that  16  vacancies  for  promotion  against  the

promotion quota are available and in any case the appellants

shall be considered for promotion.  In that view of the matter,

we  are  not  inclined  to  interfere  with  the  impugned  order

passed by the High Court. However, we dispose of the appeals

holding  that  the  appellants'  case  shall  be  considered  for

promotion  against  the  promotion  quota  as  they  are  much

above in the seniority list.   The question of law raised by the

appellants shall be kept open.

……………………J. (M.Y. Eqbal)

……………………J. (C. Nagappan)

New Delhi September 02, 2015

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