KSH. LAKSHAHEB SINGH AND OTHERS.versusSTATE OF MANIPURAND OTHERS

                        [2015] 10 S.C.R. 439


             KSH. LAKSHAHEB SINGH AND OTHERS.                          A
                             v.
                STATE OF MANIPURAND OTHERS
•
                 (Civil Appeal No.6783 of 2015 etc.)
                       SEPTEMBER 02, 2015                              B

              [M.Y. EQBALAND C. NAGAPPAN, JJ.]
          Service /aw-Appointment- Quota for promotion vis-a-
    vis direct recruitment -Appellants serving as Section Offic-
    ers - In terms of the recruitment rules, for the next promo-       c
    tional post of Assistant Engineers, 60% of the posts to be
    filled up by promotion· and 40% by direct recruitment - Fi-
    nancial crunch faced by the State Government, policy deci-
    sion imposing total ban on appointment under direct recruit-
                                                                       D
    ment quota - However, issuance of letter by the Department
    to initiate the process for direct recruitment to the said post-
    Writ petition by appellants seeking quashing of the letter-
    Single Judge held that since the Government had lifted the
    ban on direct recruitment partially in respect of certain posts    E·
    including the post ofAssistant Engineer, the action taken by
    the Department for filling up the vacancies in the grade of
    Assistant Engineer against direct recruitment quota cannot
    be faulted with- In appeal before this Court, case of the ap-
    pellants that the quota prescribed for promotion and direct        F
    recruitment would apply to vacancies and not to posts in the
    cadre and the Department have not only applied the quota
    to the cadre strength but also carried forward almost all the
    vacancies on the erroneous supposition that they are meant
    for direct recruitment- Held: As fairly submitted by the State     G
    that still there are 16 vacancies available against the pro-
    motion quota and the appellants come within eight in the
    seniority list, appellants' case would be considered for pro-

                                 439                                   H
440         SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A     motion against the promotion quota - PWD, IFCD and PHED,
      Manipur Assistant Engineer (Civil! Meehan/cal) !Assistant
      Surveyor of Works Recruitment Rules, 2009.

         CIVIL APPELLATE JURISDICTION: Civil Appeal No.
 B    6783 of2015.

          From the Judgment and Order dated 25.09.2013 of the
      High Court of Manipur at Imphal in W.P. (C) No. 155 of 2013.
                                WITH
 c        C.A. NOS. 6784 and 6785 OF 2015

          P. P. Rao, Raj Kumar Mehta, Swarnenadu Chatterjee,
      Elangbum P.S.,Abhishek Upadhyay, HimanshiAndleyforthe
      Appellants.
 D
            Jaideep Gupta, S. Guru Krishna Kumar, Thibohal Singh,
      Biswajit Meitei, Z. H. Isaac Haiding, Ashok Kumar Singh,
      Pukhrambam Ramesh Kumar, Sumit Kumar Vats, Sneha Iyer
      for the Respondents.
 E
          The Judgment of the Court was delivered by

          M. Y. EQBAL, J. 1. Leave granted.
            2. The appeal arising out of S.L.P.(Civil) No.35459 of 2013
 F    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,
G     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.

 H        3. The facts of the case in brief are that the appellants are
 KSH. LAKSHAHEB SINGH AND OTHERS. v. STATE OF 441
            MANIPUR [M. Y. EQBAL, J.]

Master Degree/Degree Holders serving in the Public Health A
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 B
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 C
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                D
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              E
appointments made on part-time, contract, adhoc, substitute,
casual basis, etc. on direct recruitment were to be terminated
and various Government Departments were also subjected to
downsizing of staffs.
                                                                    F
       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, Manipurvide his letter dated 29.8.2012 G
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 H
proceed to initiate any action for filling up the vacant posts by
442        SUPREME COURT REPORTS                  [2015] 10 S.C.R.


A 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 Personnel &
B Administrative Reforms, Personnel Division, Government of
  Manipur the vacancies are to be filled up on year wise basis
  and quota for promotion vis-a-vis the direct recruitment is to
  be worked out on year wise basis. !t has been further pleaded
  that those vacancies which became available prior to the
C enforcement of the Rules of 2009 for the Assistant Engineers
  i.e. 29.7.2009 cannot be counted in the determinatio"n of
  number of vacancies for direct recruitment quota. According
  to them, the number of vacancies for direct recruitment quota
D 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.
E      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, which showed that the Government of Manipur had
F 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:
G       "Since the Government has already t.aken a decision as
        evident from the order dated 12.8.2013 for lifting the ban
        o.n direct recruitment partially in respect of certain posts
        including the post of Assistant Engineer for Public Health
        Engineering Department, the action taken by the
H       Department for filling up the vacancies in the grade of
 KSH. LAKSHAHEB SINGH AND OTHERS. v. STATE OF 443
            MANIPUR [M. Y. EQBAL, J.]

    Assistant Engineer against direct recruitment quota as             A
    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          B
    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                  C
    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
                                                                       0
    any appointment is made under the direct recruitment
    quota in excess of the direct recruitment quota as per the
    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, thethree E
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, F
respondents-State moved an interlocutory application being
IA No.1/2014 for vacating stay, upori 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           G
    extent:

   1)    The State shall be free to fill up the vacancies
         advertised in the direct recruitment quota subject to
         the condition that three ourof such vacancies are left        H
444            SUPREME COURT REPORTS                 [2015] 10 S.C.R.


A               unfilled.
          2)    Appointment against the advertised vacancies, if any,
                shall remain subject to the ultimate outcome of these
                proceedings.
 B        3)    Appointment orders issued to the selected
                candidates shall specifically mention that their
                appointments are subject to the outcome of this -
                petition.

C               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
 o    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
 E    and, therefore, refused to pass any interim order except that
      any appointment made in pursuanceof the advertisement shall
      be subject to outcome of the writ application.

        9. Aggrieved by the decision of the High Court to not grant
 F interim order, aforesaid two groups of Section Officers Grade-
   l 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.

G         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
H
           recruitment and not the posts in the cadre. But the Chief
KSH. LAKSHAHEB SINGH AND OTHERS. v. STATE OF 445
           MANIPUR [M. Y. EQBAL, J.]

  Engineer, the Government and the Public Service               A
  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 B
  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 C
  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.
                                                             D
  (111) 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.
                                                                E
  (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           F
  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     G
  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    H
446          SUPREME COURT REPORTS                    [2015} 10 S.C.R.


A           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
 B    attention to the operative portion of the impugned judgment
      and submitted that the appellants raised only one question
      before the High Court which has been decided by the
      impugned judgment.
C         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
0
      granted benefits undertheACP 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
 E    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.
 F     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
G 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.
H
      Nidhi Jain                                       Appeals disposed of.