Manipur High Court

Mr. Phurailatpam Vivekananda Sharma vs The State Of Manipur Represented By The ... on 15 December, 2023

Author:
A. Guneshwar Sharma

Bench:
A. Guneshwar Sharma

IN THE HIGH COURT OF MANIPUR
AT IMPHAL
1. WP(C) No. 634 of 2023
With

2. WP(C) No. 613 of 2023
With
3. MC(WP(C)) No. 236 of 2023
[Ref: WP(C) No. 613 of 2023]

Mr. Phurailatpam Vivekananda Sharma, aged about 54 years, S/o
(L) Ph. Tomba Sharma of Keishamthong Top Leirak, P.O. & P.S.
Imphal, Imphal West District Manipur.

...... Petitioner/s
- Versus -

1. The State of Manipur represented by the Chief Secretary
(DP), Government of Manipur, Old Secretariat Building, South
Block, Babupara, P.O. & P.S. Imphal, Imphal West District,
Manipur-795001;
2. The Special Secretary (DP/Cabinet), Government of Manipur,
Secretariat Building, P.O. & P.S. Imphal, Manipur;
3. The Deputy Secretary (DP), Govt. of Manipur, Old Secretariat
Building, South Block, Babupara, P.O. & P.S. Imphal, Imphal
West District, Manipur-795001;
4. The Addl. Chief Secretary/Commissioner/Secretary (Forest,
Environment & CC), Government of Manipur, Old Secretariat
Building, South Block, Babupara, P.O. & P.S. Imphal, Imphal
West District, Manipur-795001;
5. Mr. Tourangbam Brajakumar Singh, aged about 56 years, S/o
(Late) Tourangbam Brajamani Singh of Uripok Tourangbam
Leikai, P.O. & P.S. Imphal, Imphal West District, Manipur.

Page 1
........Respondent/s

B E F O R E
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA

For the petitioner :: Mr. HS. Paonam, Sr. Adv. assisted by
Mr. NG. Jotindra Luwang, Adv.

For the respondents :: Mr. M. Rarry, Special State Counsel; Mr.
M. Hemchandra, Sr. Adv. assisted by
Mr. L. Sevananda, Adv. for R-5

Date of hearing :: 12,13,14,15,18,19&20 of September, 2023
Date of Judgment and Order :: 15.12.2023

JUDGMENT & ORDER (CAV)

[1] The present writ petitions have been filed by the petitioner

under
Article 226
of the Constitution of India for quashing the impugned

orders dated 28.09.2023 [WP(C) No. 613 of 2023] and 29.08.2023 [WP(C)

No. 634 of 2023] issued by the Deputy Secretary (DP), Government of

Manipur as arbitrary, malafide and unconstitutional. The second impugned

order dated 29.08.2023 is allegedly issued in supersession of the first

impugned order dated 28.08.2023, whereby the respondent No. 5 is

allowed to look after the charge of Director (Envt. & CC), Manipur as an

interim measure till the appointment of a regular Director. The petitioner

has challenged both these orders on the ground of violation of the

guidelines issued by the Department of Personnel & Administrative Reform

(Personnel Division), Government of Manipur in Office Memorandum dated

Page 2
03.10.2020 with respect to in-charge appointment of seniormost in the

cadre, where no eligible person as per the relevant Recruitment Rules is

available. Since the writ petitions involve the question of interpretation and

applicability of the Office Memorandum dated 03.10.2020 based on the

same factual matrix, these are heard together and being disposed of by

this common judgment.

[2] Another writ petition being WP(C) No. 289 of 2023 filed by the

respondent No.5 herein challenging the final seniority list in the cadre of

Deputy Directors, Department of Environment and Climate Change, Govt.

of Manipur is also pending. Vide order dated 15.09.2023 in WP(C) No. 634

of 2023, this Court recorded that as the short question involved in the

petition with respect to OM dated 03.10.2020 and the matter having been

heard extensively, these writ petitions [ WP(C) No. 613 of 2023 and WP(C)

No. 634 of 2023] would be disposed of without filing of counter and

rejoinder affidavit at motion stage and all the parties agreed to this.

Relevant part of order dated 15.09.2023 in WP(C) No. 634 of 2023 is

reproduced below:

"Present Mr. HS Paonam, learned senior counsel assisted by Mr. Ng.
Jotindra, learned counsel for the petitioner, Mr. M. Rarry, learned Special
counsel for the State, assisted by Ms. T. Keishing, learned counsel for
respondent Nos. 1,2,3 and 4 and Mr. M. Hemchandra, learned senior
counsel assisted by Mr. Sevananda Sharma, learned counsel for
respondent No.5.

Due to paucity of time, this matter cannot be taken up today. List on
18.09.2023 along with connected matters, ie, WP(C) No. 613 of 2023 and
WP(C) No. 289 of 2023 as part heard motion, first item.

It is made clear that WP(C) No. 613 of 2023 and WP(C) No. 634 of 2023
involve short question as to whether the impugned orders dated

Page 3
28.08.2023 and 29.08.2023 were issued in violation of the OM dated
03.10.2023.

Since this matter has been heard extensively for three consecutive days,
this Court is inclined to dispose WP(C) No. 613 of 2023 and WP(C) No.
634 of 2023 at motion stage without filing of counter and rejoinder
affidavit.

With regard to WP(C) No.289 of 2023, parties are permitted to exchange
their pleadings."

In the circumstances, the matters are heard on merit on the

basis of available materials, as pure question of law of the applicability of

OM dated 03.10.2023 is involved and there is no much variance in the

factual aspect.

[3] The brief facts of the case are that the petitioner was initially

appointed as Data Analyst in the Directorate of Environment & Climate

Change, Manipur (erstwhile known as Environment and Ecological Wing)

on ad-hoc basis for a period of 3 (three) years vide the order dated

23.06.1999 issued by the Under Secretary (Forests and Environment),

Government of Manipur and his service was extended from time to time till

the regularization of his service without any break. Vide order dated

02.03.2007 issued by the Addl. Chief Secretary (Forests & Environment),

Government of Manipur, the petitioner's service was regularized.

[4] The Principal Secretary (F & E), Government of Manipur

issued an order dated 24.12.2011 for strengthening and upgradation of the

then existed Environment and Ecology Wing of the Forest and Environment

Department, Manipur into a full-fledged Directorate of Environment,

Manipur by redesignating the existing one post of Senior Scientific Officer,

Page 4
two posts of Scientific Officer as Director and Joint Directors respectively.

In continuation of the order dated 24.12.2011, another order dated

24.12.2011 was also issued by the Principal Secretary (F & E),

Government of Manipur for redesignating Dr. M. Homeshwar Singh (Senior

Scientific Officer, Environment and Ecology Wing and Dr. Y. Nabachandra

Singh (Scientific Officer as Director of Environment and Joint Director of

Environment) respectively to the newly created full fledged Directorate of

Environment, Manipur.

[5] Vide order dated 09.03.2016 issued by the Joint Secretary

(For. & Envt.), Government of Manipur for re-designation with upgradation

the post of Data Analyst (post held by the present petitioner), Junior

Scientific Officer and Research Officer (post held by respondent No. 5

namely Mr. Tourangbam Brajakumar Singh) to the post of Deputy Director

and there are 4 (four) posts of Deputy Director in the Department without

any specific classification. As the post of Data Analyst was re-designated to

the post of Deputy Director in the Department, it is equivalent to the newly

re-designated post of Deputy Director.

[6] Vide order dated 09.03.2016, the petitioner was posted

against the newly re-designated post of Deputy Director by an order dated

08.08.2016 issued by the Joint Secretary (Forests & Environment),

Government of Manipur in which the petitioner's name is at serial No. 1. A

notification dated 21.04.2020 issued by the Under Secretary (DP),

Government of Manipur with regard to the Recruitment Rules to the post of

Joint Director (re-designated from Scientific Officer) in the Directorate of

Page 5
Environment & Climate Change, Manipur and the post of Joint Director is

by way of promotion from the post of Deputy Director of Environment with 5

(five) years of regular service in the grade. By an order dated 30.03.2021

issued by the Under Secretary (F & E), Government of Manipur, the

petitioner along with 2 (two) others (Deputy Directors) were given in-charge

of the work of Joint Director in the public interest as the post of Joint

Director has been lying vacant in the Department.

[7] The Director of the Department submitted a letter dated

10.08.2021 to the Addl. Chief Secretary (Forest, Environment & Climate

Change), Government of Manipur requested for appointment/promotion of

the 3 (three) Deputy Directors including the present petitioner to the 3

(three) vacant post of Joint Director on regular basis. Thereafter, seeking

administrative approval in order to issue final seniority of the 3 (three)

Deputy Directors by a letter dated 06.09.2021 and the petitioner's name

appeared at serial No. 1 in the final seniority list of Deputy Directors in the

Department. Vide letter dated 07.02.2022, the Deputy Secretary (Forest,

Environment & Climate Change), Government of Manipur seeking

information as to whether there is any claim on tentative seniority list

issued vide the Government letter of even number dated 17.08.2017 and

the same has been disposed of. Meanwhile, there was an objection from

One Dr. T. Brajakumar (respondent No. 5) in respect of the tentative

seniority list which was settled after due consideration.

[8] In such circumstances, the petitioner submitted a

representation dated 04.03.2022 to the Addl. Chief Secretary (Forest &

Page 6
Environment), Government of Manipur requesting to consider the case of

the petitioner for promotion to the post of Joint Director in the Department.

Thereafter, the said representation was forwarded by the Director of

Environment & Climate Change, Manipur to the Addl. Chief Secretary

(Forest, Environment & Climate Change), Manipur. As the representation

submitted by the petitioner was not conveyed and having no alternative,

the petitioner approached this Court praying for directing the respondents

to consider the case of the petitioner for promotion to the next higher post

of Deputy Director to Joint Director as per RR as he has completed 5 (five)

years of regular service.

[9] Being aggrieved by the order dated 25.07.2022 issued by the

Deputy Secretary, (For., Envt. & CC), Government of Manipur, the

petitioner challenged the same by filing a writ petition being WP(C) No. 849

of 2022 wherein an interim order dated 19.10.2022 was passed directing

the respondents to carry out decision for promotion to the post of Joint

Director in the Directorate and to finalise the seniority list on or before

15.11.2022. As per the direction of the Hon'ble High Court, the Deputy

Secretary (For., Envt. & CC), Government of Manipur issued an order

dated 11.01.2023 publishing a final seniority list of three Deputy Directors

in the Directorate in which the petitioner is at serial No. 1. Even though the

final seniority list was published, no promotion to the post of Joint Director

was made despite the Hon'ble Courts' order. Thereafter, a notification

dated 07.06.2023 was issued by the Deputy Secretary (For., Envt. & CC),

Government of Manipur for holding the DPC Meeting. On recommendation

Page 7
of the DPC Meeting held on 09.06.2023 and vide order dated 15.06.2023

issued by the Deputy Secretary (For., Envt. & CC), Government of

Manipur, the petitioner along with two incumbents were appointed on

promotion to the post of Joint Director in the Department of Environment

and Climate Change, Manipur.

[10] However, the respondent No. 5 (who is at serial No. 3) in the

seniority list of Deputy Director challenged the said seniority list by filing a

writ petition being WP(C) No. 262 of 2023 and the same was dismissed as

withdrawn. Thereafter, another writ petition being WP(C) No. 289 of 2023

was filed and in the order dated 31.03.2023 wherein it is clearly mentioned

that if the respondent No. 5 [petitioner herein] and respondent No. 6

[Deputy Director at sl. No.2, and she is not a party in WP(C) Nos. 613 &

634 of 2023] are given promotion on the basis of the seniority list, such

promotion shall be outcome of the said writ petition. However, there was no

stay order of the final seniority list of Deputy Directors. As per the

notification dated 01.08.2017 issued by the Deputy Secretary (For., Envt. &

CC), Government of Manipur publishing the Rules regulating the method of

recruitment to the post of Director (re-designated from Senior Scientific

Officer) in the Directorate of Environment, Manipur, the feeder post of

Director is Joint Director with 5 years of regular service.

[11] An Office Memorandum dated 03.10.2020 was issued by the

Special Secretary (DP), Govt. of Manipur regulating the appointment on in-

charge basis to various post, when none is found eligible from the feeder

Page 8
cadre for appointment/promotion on regular basis. The operative portion is

reproduced herein below:

"4. Thus, with a view to bring uniformly, clarity and enforceable
norms in making such in-charge appointment, the following norms
are nearby issued for compliance by all concerned:

i. Appointment on in-charged basis shall be made
against a post only when there is no official eligible
as per RR to fulfil the said post either by direct
recruitment or promotion through duly constituted
DPC.

ii. In absence of any official eligible as per RR to fill up
a particular post, the senior most person amongst
cadre/officials belonging to the feeder post of the said
particular post shall be appointed to hold the said
post on in-charged basis, at no extra remuneration
and in addition to the substantial post held by the
appointee in lower post. Needless to say, the
appointee shall draw pay against the lower post
substantially held by him.

iii. Where no arrangement can be made as in para (ii)
above, an in-charge appointment shall be made to a
vacant post from a person holding a similar post (at
same rank and/or designation), at no extra
remuneration.

iv. An official appointed on in-charge basis against any
post shall have the same financial power as a person
appointed on substantial basis against the said post
would enjoy.

5. These instructions shall be applicable while making
appointments on in-charge basis to all posts under the State
Government existing in all Government departments, agencies,
societies, bodies, offices, companies, PSUs, autonomous bodies,
etc."

Page 9
[12] Another Office Memorandum dated 09.03.2021 was issued by

the Special Secretary (DP), Govt. of Manipur in continuation of the Office

Memorandum dated 03.10.2020 adding (v) to Para 4 and the same reads

as below:

v. "Integrity certificate based on Vigilance Clearance,
non-pendency of Departmental Enquiry, non-
pendency of FIR cases which has been taken
cognizance by Magistrate etc. is mandatory for in-
charge appointments, especially the Head of
Departments".

[13] In the light of the Office Memorandums dated 03.10.2020 and

09.03.2021, the petitioner submitted a representation dated 19.06.2023 to

the concerned authorities requesting to consider his case for promotion to

the post of Director in the Directorate of Environment & Climate Change,

Manipur on in-charge basis being the senior-most incumbent and the said

representation was not considered by the concerned authorities. The

petitioner filed a writ petition being WP(C) No. 491 of 2023 and the same

was disposed of on 05.07.2023 directing the respondents especially

respondent No. 1 to consider the representation dated 19.06.2023

submitted by the petitioner on its own merit and in light of the Guideline of

the Office Memorandum dated 03.10.2020 and also directing to dispose of

the same by issuing a speaking order within a period of three months.

[14] Vide order dated 28.08.2023 issued by the Deputy Secretary

(DP), Govt. of Manipur, the respondent No. 5 was appointed as Director on

in-charge basis in violation of the Office Memorandum dated 03.10.2020.

Page 10
By way of writ petition being WP(C) No. 613 of 2023, the petitioner has

challenged the order dated 28.08.2023 passed by the official respondents

making the respondent No.5 herein as Director on in-charge basis as

violative of the OM dated 03.10.2020 as the latter is junior to the petitioner

who is the seniormost officer in the cadre of Deputy Director as well as

Joint Director. Vide order dated 31.08.2023 in WP(C) No. 613 of 2023, this

Court stayed the impugned order dated 28.08.2023 till next date as

violative of the OM dated 03.10.2020. It may be noted that respondent

No.5 appeared on 31.08.2023 by filing a caveat petition. However, the

official respondent issued another order dated 29.08.2023 in supersession

of the earlier order dated 28.08.2023 making the respondent No.5 to look

after the charge of Director (Envt. & CC) as an interim arrangement till a

regular Director is appointed. It is submitted that the official respondent

has malafidely issued the impugned order dated 29.08.2023 by modifying

the order dated 28.08.2023, which is under challenge and the said

impugned order is allegedly a back dated order because the same was

neither placed by the Government Advocate nor by the counsel for

respondent No. 5 (who appeared on caveat) before the Hon'ble Court while

hearing the matter on 31.08.2023 for passing the interim order dated

31.08.2023.

[15] Heard Mr. HS Paonam, learned senior counsel assisted by

Mr. Ng. Jotindra, learned counsel for the petitioner; Mr. M. Rarry, learned

State Special Counsel assisted by Ms. T. Keishing, learned counsel for

State Respondent Nos. 1-4 and Mr. M. Hemchandra, learned senior

Page 11
counsel assisted by Mr. L. Sevananda, learned counsel for private

respondent No.5. Mr. A. Romenkumar, learned senior counsel assisted by

Mr. RK Bana, learned counsel appeared on behalf of the respondent No.6

in WP(C) no. 289 of 2023. This Court has considered the material on

record and relevant case laws cited at bar and written submissions filed by

the parties.

[16] The short question of law involved in the present petitions is

the interpretation and applicability of the Office Memorandum dated

03.10.2020 and subsequent Office Memorandum dated 09.03.2021 issued

by the Government of Manipur laying down guidelines for appointment of

the seniormost on in-charge basis, when none in the feeder cadre is

eligible for appointment by direct recruitment or by promotion as per

Recruitment Rule.

[17] Mr. HS Paonam, learned senior counsel for the petitioner has

pointed out that on the recommendation of the Manipur Public Service

Commission (in short, MPSC), vide order dated 02.03.2007 issued by the

Govt. of Manipur, the petitioner was appointed on regular basis as Data

Analyst in the Forest & Environment Department, Manipur and vide another

order dated 04.03.2009, his period of ad-hoc service wef 23.06.1999 to

01.03.2007 was linked up for the purpose of pensionary benefit and not for

other purposes including seniority. It is submitted that the petitioner was

regularly appointed on 02.03.2007. Learned senior counsel draws the

attention of this Court to an order dated 05.11.2011 appointing the

respondent No.5 as Research Officer on regular basis along with two other

Page 12
persons as Junior Scientific Officers in the Environment & Ecology Wing,

Department of Forest & Environment, Manipur. Vide order dated

24.12.2011, the Environment & Ecology Wing was upgraded to full fledged

Directorate of Environment, Manipur and by an order dated 04.11.2019, it

was re-named as "Directorate of Environment & Climate Change, Manipur".

Thereafter, by an order dated 09.03.2016, there was a mass re-designation

with up-gradation along with incumbents in the new Directorate of

Environment & Climate Change. In this exercise, the post of Data Analyst

(held by the petitioner), 2 post of Junior Scientific Officer and one post of

Research Officer (held by the private respondent No.5) were re-designated

and upgraded as four posts of Deputy Directors. The pay scale of the

existing posts of Rs.9300-34800 + GP 4300 was upgraded to Rs.9300-

34800 + GP 5400. Consequently, an order dated 08.08.2016 was issued

appointing four employees as Deputy Directors on redesignation and the

name of the petitioner was placed at serial No.1 and that of the private

respondent at No.4. In the Final Seniority List of 3 Deputy Directors (one

died during service) dated 11.01.2023 issued by the Deputy Secretary

(For., Envt.&CC), Govt. of Manipur, the petitioner was placed at serial No.1

with initial date of regular appointment as 02.03.2007 as Data Analyst and

the respondent No.5 at serial No.3 with initial date of appointment as

05.01.2011 as Research Officer. The final seniority of the Deputy Directors

has been challenged by the respondent No.5 herein by way of writ petition

being WP(C) No. 289 of 2023 and vide order dated 30.03.2023, this Court

passed an order that any appointment shall be subject to the outcome of

Page 13
the writ petition, but the final seniority was not stayed. Learned senior

counsel further submits that on the basis of a duly constituted DPC

proceedings 09.06.2023 in consultation with MPSC, the three incumbent

Deputy Directors were recommended for promotion to the three posts of

Joint Directors on consideration of all relevant materials including the

ACRs. Accepting the recommendations of the DPC, the Deputy Secretary

(For., Envt.&CC), Govt. of Manipur promoted the three Deputy Directors to

the higher posts of Joint Directors. In the promotion order, the name of the

petitioner is placed at serial No.1 while the respondent No.5 is shown at

serial No.3.

[18] Mr. HS Paonam, learned senior counsel for the petitioner has

stated that by an order dated 28.08.2023 (first impugned order) issued by

the Deputy Secretary (DP), Government of Manipur, the respondent No.5

was appointed to hold charge of Director (Environment & Climate Change)

on in charge basis till appointment of a regular Director. Subsequently, by

another order dated 29.08.2023 (first impugned order) and in supersession

of earlier order dated 28.08.2023, the respondent No.5 was allowed to look

after the charge of Director (Environment & Climate Change) on in charge

basis till appointment of a regular Director as an interim measure subject to

the outcome of WP(C) No. 289 of 2023.

[19] Learned senior counsel has pointed out that the first

impugned order dated 28.08.2023 was challenged by the petitioner in

WP(C) No. 613 of 2013 and vide order dated 31.08.2023, this Court stayed

the order dated 28.08.2023 till next date. It is submitted that the second

Page 14
impugned order dated 29.08.2023 was issued in order to frustrate the

interim order dated 31.08.2023 of suspending the first order dated

28.08.2023 granted by this Court in WP(C) No.613 of 2023. It is

vehemently submitted that the second order dated 29.08.2023 was back-

dated for the simple reason that both the State and private respondent

No.5 who appeared on caveat in WP(C) No. 613 of 2013 did not produce

the order dated 29.08.2023 during the course of hearing on 31.08.2023

and the second impugned order dated 29.08.2023 was produced for the

first time on 11.09.2023 by the State respondent during the course of

hearing of WP(C) No. 613 of 2013. The petitioner also challenged the

subsequent order dated 29.08.2023 in WP(C) No. 634 of 2013 on similar

grounds as taken in WP(C) No. 613 of 2013 and additional ground of back-

dated order.

[20] Mr. HS Paonam, learned senior counsel for the petitioner

draws the attention of this Court to the order dated 09.03.2016 for re-

designation and up-gradation, the order dated 08.08.2016 of posting on

actual re-designation of the petitioner and others in the cadre of Deputy

Directors and the final seniority list of Deputy Directors dated 11.01.2023.

In the seniority list, the initial date of regular appointment is shown as

02.03.2007 from the date of appointment as Data Analyst, while for other

incumbents including the respondent No.5, same is shown as 05.01.2011.

It is submitted that there is no illegality in placing the petitioner as the

senior most Deputy Director. Learned senior counsel has pointed out that

the final seniority list is not stayed by this Court in the writ petition being

Page 15
WP(C) No. 289 of 2023 challenged by the respondent No.5 herein and only

promotion done on the basis of this seniority list will be subject to its

outcome. It is stated that the final seniority list of Deputy Directors can be

considered for any including promotion, in-charge arrangement, etc.

[21] Mr. HS Paonam, learned senior counsel for the petitioner

further refers to the proceedings of the DPC dated 09.06.2023 for

promotion to the post of the Joint Directors where the petitioner was

recommended at serial No.1 and the respondent No.5 at serial No.3 on the

consideration of the seniority, ACRs and other aspects and promotion

order dated 15.06.2023. He submits that in view of Para 2.2 of the Office

Memorandum dated 03.07.1986 issued by Department of Personnel &

Training, Govt. of India determining the seniority position of the promotees

in the order in which they are recommended by the DPC. It is clarified that

until a final seniority list which is different from the order recommended by

the DPC is issued by the competent authority, it will be safe to consider

the seniority list for the time being. Reference is made to the decision of

Hon'ble Supreme Court in the case of
B. Thirumal v. Ananda Sivakumar
:

(2014) 16 SCC 593 @ Para 18, 19 & 23 to the point that if no selection

procedure is involved in upgradation, it is merely giving a financial benefit

and cannot be considered as a promotion to higher post. It is stated that in

the case in hand, the order dated 09.03.2016 for re-designation and up-

gradation, the order dated 08.08.2016 of posting on actual re-designation

of the petitioner and others in the cadre of Deputy Directors, are nothing

but simple re-designation of the earlier posts as Deputy Directors and are

Page 16
not promotion orders. Hence, the petitioner will retain his seniority wef

02.03.2007 while the respondent No.5 and other wef 05.01.2011. It is

emphasised that the petitioner is seniormost both in the cadre of Deputy

Director as well as Joint Director.

[22] Mr. HS Paonam, learned senior counsel for the petitioner

explains the object behind the Office Memorandum dated 03.10.2020

where the Govt. of Manipur laying down the guidelines for making in-

charge appointment to a post where none in the feeder post is eligible for.

He refers to Para 4 of the OM and as per Para 4(ii), the seniormost in the

feeder cadre is to be made in-charge appointment till regular appointment.

It is further mentioned that the petitioner is seniormost in the cadre of

Deputy Director as well as Joint Director. The impugned orders dated

28.09.2023 and 29.08.2023 issued by the Deputy Secretary (DP), Govt. of

Manipur allowing the respondent No.5 to look after the charge of Director

till appointment of a regular Director is void ab-initio as the same has been

issued in violation of OM dated 03.10.2020. It is clarified that as there is no

vigilance case or FIR against the petitioner, the OM dated 09.03.2021 will

not be applicable to the petitioner. Mr. HS Paonam, learned senior counsel

for the petitioner vehemently submits that the OMS have statutory value as

issued in exercise of power under
Article 309
of the Constitution. It is

pointed out that Para 4(iii) of OM dated 03.10.2020 will not be attracted at

the first instance and the same is to be resorted only when none is

available under Para 4(ii). With respect to the passing of the interim order,

learned senior counsel refers to the decisions reported as (2004) 4 SCC

Page 17
697, (2007) 11 SCC 447 and (2009) 10 SCC 388. It is prayed that the

impugned orders dated 28.08.2023 and 29.08.2023 be set aside and the

petitioner be made in-charge Director as stipulated under OM dated

03.10.2020.

[23] Mr. M. Rarry, learned Special Counsel for State submits that

the OM dated 03.10.2020 is not issued under
Article 309
of the Constitution

and hence it has no statutory value for strict compliance. Even if it is

presumed to be applicable, Para 4(iii) of the OM has been invoked for

making in-charge arrangement by a person holding same rank. It is

clarified that the respondent No.5 is also holding the same rank as the

petitioner, being promoted on the same day. In absence of final seniority

list in the feeder cadre of Joint Director, there is no wrong in preferring the

respondent No.5 considering his contribution and expertise in the filed of

environment and climate change. Learned counsel submits that in absence

of final seniority list, Para 4(ii) of the OM will not be applicable. Mr. Rarry,

learned counsel refers to a judgment dated 31.08.2023 passed by a

learned Single Judge of this Court in WP(C) No. 527 of 2023 where Mr. HS

Paonam successfully argued that a junior can be made in-charge

arrangement on the basis of the same OM. Mr. HS Paonam however,

clarifies that in the case cited herein, the senior was having vigilance case

and was not considered in view of Para 4(v) of OM dated 09.03.2021.

[24] Mr. M. Rarry, learned Special Counsel for State further has

pointed out that there is no material to show that the second impugned

order dated 29.09.2023 was issued backdated in order to frustrate the

Page 18
interim order dated 31.03.2023 passed in WP(C) No. 613 of 2023 staying

the first impugned order dated 28.08.2023. During the course of hearing of

these cases, learned counsel for State submits that one post of OSD

equivalent to Director has been framed and offered to the petitioner. On

instruction, Mr. HS Paonam, learned senior counsel for the petitioner

rejected the offer. Mr. M. Rarry, learned Special Counsel for State relies on

the decisions of (2009) 12 SCC 175 @ Pr 18 [wrong provision or non-

mentioning of provision does not make the order invalid], (1988) 4 SCC

275 @ Pr 12,13&14 [whole text should be read from beginning to end while

interpreting any document], (2007) 10 SCC 548 @ Pr 25, (2003) 5 SCC

604 @ Pr. 49, & (2003) 11 SCC 614 @ Pr 44 [seniority is not a

fundamental right], (2008) 8 SCC 348 @ Pr. 16&17, & (2007) 3 SCC 470

@ Pr. 5,7,12,18,19 [limited effect of interim order, if not extended], and

(1988) 7 SCC 469 @ Pr. 8 [ case must establish on pleadings]. It is prayed

that there is no illegality in the impugned orders and the writ petitions may

be dismissed being devoid of any merit.

[25] Mr. M. Hemchandra, learned senior counsel assisted by Mr. L.

Sevananda, learned counsel for the respondent No.5 has pointed out that

the impugned orders are not as per the Office Memorandum dated

03.10.2020. It is clarified that for applicability of the OM, there should be an

appointment of a person on in-charge basis at the first place. In the present

case, the first order 28.08.2023 has been superseded by the second order

dated 29.08.2023 to rectify the mistake of considering the cadre Deputy

Director while all the incumbents are holding posts of Joint Directors. It is

Page 19
pointed out that in the second order dated 29.08.2023, the crucial word

'appointment' is not used and the said order has been issued in the

administrative exigency. He further continues that even if the OM is

presumed to be applicable for the sake of argument, but not admitting, the

OM will not be applicable as there is no final seniority list in the cadre of

Joint Directors. It is pointed out that the allegation of backdated order is not

proved by any material. Learned senior counsel for the respondent No. 5

refers to Black Law Dictionary (4th Edition) with respect to the definition

of appointment and Principle of Statutory Interpretation (14th Edition)

by Justice GP Singh regarding giving plain and literal meaning to the

contents of the impugned order dated 29.08.2023. To emphasise his other

points, learned senior counsel refers to the case laws reported as 1991 (2)

SCC 773, (2007) 4 SCC 737 and (2003) 4 SCC 289. It is further submitted

that judicial review does not lie against the administrative order issued in

the exigency of the service and in public interest, unless patent illegality on

face of it is apparent. Accordingly, it is prayed that the writ petitions be

rejected.

[26] This Court considers the rival submissions made at bar, the

materials on record and settled proposition of law. Since the pure question

of law of applicability of OMs dated 03.10.2020 and 09.03.2021 are

considered on the admitted facts without calling for counter and rejoinder

affidavits, this Court will not go into other allegations of back-dated order

and final seniority list. The available seniority lists will be considered for the

Page 20
limited issue with respect to the OMs. It is clarified that the final seniority list

of Deputy Directors is not stayed in WP(C) No. 289 of 2023.

[27] On a bare perusal of the OM dated 03.10.2020, nothing is

mentioned that it was issued in exercise of power under
Article 309
of the

Constitution. Hence, there is force in the submission of Mr. M. Rarry that

the same does not have statutory value. However, it will be necessary to

examine the object behind issuing the same. In Para 4 of the OM, it is

stated that the same is issued "... with a view to bring uniformly, clarity and

enforceable norms in making such in-charge appointments..." and Para

4(ii) stipulates consideration of the seniormost in the feeder cadre and 4(iii)

empowers State to appoint any other person when seniormost is not

available. This Court is of the view that Para 4(ii) has to be considered first

if no eligible person as per Recruitment Rule is available and when such

senior person is not available, resort to Para 4(iii) may be made. In view of

Para 4(v) of OM dated 09.03.2021, the seniormost incumbent may be

ignored, if there is vigilance or FIR case is pending against him, specially

with respect to in-charge appointment of Head of Departments. The OMs

will be binding in case of appointment of in-charge arrangement is to be

made. It is the considered opinion of this Court that OMs dated 03.10.2020

and 09.03.2021 are binding on the State Government while making in-

charge appointment when such aspect are not found in the relevant rules.

The submission of Mr. M. Hemchandra that the impugned order dated

29.08.2023 is not issued as per OM dated 03.10.2020 does not have any

Page 21
merit. The order dated 29.08.2023 is an in-charge appointment in disguise

to frustrate the OMs and this submission is rejected.

[28] Applying the facts of the present case to the views observed

in Para 27 above, the writ petitions can be disposed of on the basis of

materials available on record.

[29] It is admitted that as on the petitioner is seniormost in the

cadre of the Deputy Director, unless the final seniority list dated 11.01.2023

is set aside finally in WP(C) No. 289 of 2023. Moreover, as per

recommendation of DPC held on 09.06.2023 for promotion to Joint Director

and actual promotion order and posting dated 15.06.2023, the petitioner

can be considered seniormost tentatively until finalisation of seniority of

Joint Directors, in view of Para 2.2 of OM dated 03.07.1986 issued by

DoPT, Govt. Of India.

[30] In the case of Government of AP v. AV Venugopala Rao:

(1995) 1 SCC 159, Hon'ble Supreme Court upheld as rational and

reasonable that pending finalisation of seniority list, seniormost eligible

employee in the provisional list could be made in-charge of the promotional

post to avoid administrative hardship or heart burning among rival

claimants. Reading the ration of this case along with the OMs dated

03.10.2020 and 09.03.2021, pending finalisation of the final seniority list of

Joint Directors, the petitioner is at least provisionally seniormost in the

cadre of the Joint Directors. This Court is of the view that the petitioner

Page 22
should be considered as Director on in-charge basis till appointment of a

regular Director as no vigilance case or FIR is pending against him.

[31] In the circumstances, the writ petitions are allowed and

impugned orders dated 28.08.2023 and 29.08.2023 are set aside. The

State respondents are directed to appoint the petitioner as in-charge

Director (Envt. & CC), Manipur within a period of 15 days from the receipt

of this judgment. No cost. Misc. applications, if any, are disposed of

accordingly.

[ 32] This Court appreciates the valuable assistance given by the

learned counsel appearing for the parties.

[33] List WP(C) No. 289 of 2023 on 15.11.2023 for further

proceedings.

[34] Send a copy of this judgment to the respondent No.1 for

information and doing needful.

JUDGE

FR/NFR
joshua

KH. Digitally signed by
KH. JOSHUA
JOSHUA MARING
Date: 2023.12.15
MARING 14:29:45 +05'30'

Page 23