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CASE NO.: Appeal (civil)  2126-2127 of 2001

PETITIONER: N. BIRENDRA SINGH

RESPONDENT: L. PRIYOKUMAR SINGH & ORS

DATE OF JUDGMENT: 05/05/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

WITH Civil Appeal Nos.2133, 2132, 2128-2131 and 8510-8513 of 2001

S.B. SINHA, J :

These appeals involving common questions of law and  fact were taken up for hearing together and are being  disposed of by this common judgment. The 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:

"\005 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

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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.   

A 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.   Several 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.   

By a 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:

"\005\005.I 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.   Govt. 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.

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Engineers 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.   

A 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:

"21. 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.   Adhoc 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

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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.

       The 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.

       Ms. S. 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:   "So 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

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Judge dated 18.3.1997 and 21.5.1997, it was directed to fill  up 20 vacant posts on regular basis stating:

"It 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.   Learned 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.   

It is not in dispute that the post of Executive Engineer  is a selection post.    We, 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.   

The 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

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their seniority.   

Before 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.   We 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.

The 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:

"Mr. 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.   Some of the said applicants appear to be appellants before

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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           "\005..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.

By 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.  

Interlocutory 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.   

We 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

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as orders were passed in their favour.  The said order,  admittedly, attained finality, and thus, cannot be reopened.   It is, 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.   

We 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.  

In the 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 directions. Having 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.   

In the facts and circumstances of the case, the parties  shall bear their own costs.