IBEYAIMA DEVI Vs. REGISTRAR CO OPERATIVE SOCIETY MANIPUR

JUDGEMENT

(1.) In this application under Article 226 of the Constitution, the petitioner has challenged the order dated 19.3.90 of the Registrar off Cooperative Societies, Manipur, Imphal, promoting the respondent Nos. 3,4 and 5 from the posts of Lower Division Clerks to the posts of Upper Division Clerks on regular basis.

(2.) Facts briefly are that after passing the PUC examination, the petitioner was appointed on regular basis as Lower Division Clerk on 11.1.82 in the co-operation Department of Government of Manipur and she passed the examination of office procedure on 14,11.83. The respondent Nos 3, 4 and 5 who were graduates were appointed as Lower Division Clerks in the said department on 20.5.83 and they passed the examination of office precedure on 14.11.83. hi the seniority list prepared and finalised by the Registrar of Co-operative Societies dated 27.7.86, the petitioner was shown in the 6th position whereas the respondent Nos. 3,4 and 5 were shown in the 17th, 18th and 19th position amongst the Lower Division Clerks of the Co-operation Department of Manipur. By order dated 3.11.86, the respondent Nos 3 and 4 were appointed as Upper Division Clerks on officiating basis on the recommendation of the class-in DPC of the Co-operation Department of Manipur in its meeting held on 26.8.86 till eligible ST/SC candidates were available or the vacancies were unreserved as per the existing rules. Similarly, by order dated 6.2.87, the respondent No. 5 was appointed as Upper Division Clerk on officiating basis on the recommendation of Class-III DPC of the Co-operation Department, Manipur, in its meeting held on 15.12.86 till eligible ST candidate was available for regular appointment. Thereafter, on 4.9.87, the Government of Manipur in the Co-operation Department created 4 posts of Lower Division Clerks by order dated 4.9.87 and a Class-in DPC was held on 18.6.88 for promotion of Lower Division Clerks to the posts of Upper Division Clerks in the Co-operation Department. On the recommendation of the said DPC held on 18.6.88, the respondent Nos. 3, 4 and 5 were appointed by promotion to the posts of Upper Division Clerks on regular basis. The petitioner has challenged the aforesaid order dated 19.3.90 of the Registrar of Co-operative Societies, Manipur, Imphal, promoting the said respondent Nos. 3,4 and 5 to the posts of Upper Division Clerks in the Co-operation Department ofManipur.

(3.) At the hearing Mr. A. Nilamani Singh, learned counsel for the petitioner assisted by Mr. N.B Singh, learned counsel, submitted that under the recruitment Rules notified under the notification dated 24.4.87 and framed by the Government of Manipur under proviso to Article 309 of the Constitution, the posts of Upper Division Clerk in the various departments of Government of Manipur are non-selection posts and the criteria for promotion of Lower Division Clerks to the said posts of Upper Division Clerks is on seniority-cum-merits. Since the petitioner was senior to respondent Nos.3,4 and 5, she was entitled to be considered first for promotion to the said posts and, in case, she was found unfit, the DPC would be justified in not recommending her case for promotion and to proceed for consideration of the cases of Lower Division Clerks who were junior to the petitioner such as the respondent Nos 3,4 and 5. In support of this submission, Mr. A. Nilamani Singh, learned counsel for the petitioner, cited the circular/ instruction of the Ministry of Home Affairs No. 1/1/55-RPS, dated 17.2.55 and No. 1/4/55/RPS, dated 16.5.57 in which non-selection posts have been described as posts promotion to which are to be made by seniority subject to rejection on unfit. He also pointed out that in the said circular it was clearly mentioned that while dealing with the case of non-selection posts, the DPC need not make a comparative assessment of the records of the officers but they should categorise as 'Fit' or 'Not yet fit' for promotion on an assessment of their records and the officers should be placed in the panel in order of their seniority. He further stated that as per the aforesaid recruitment rules notified under the notification dated 24.4.87, the eligibility for promotion of Lower Division Clerks to the post of Upper Division Clerks is three years of regular service in case of graduates and five years of regular service in case of under-graduates who have passed the examination of office procedure conducted by the Government of Manipur. According to him, the petitioner was appointed on regular basis as Lower Division Clerk on 11.1.82, she had completed five years of regular service as Lower Division Clerk on 18.6.88 when the Class-III DPC was held to consider the cases of promotion from the posts of Lower Division Clerks to Upper Division Clerks. Yet the petitioner's case was not considered but the cases of those who are junior to her such as the respondent Nos. 3,4,and 5 were considered first in violation, of the aforesaid principle/criteria of seniority-cum-merit for promotion and the instruction/circular of the Ministry of Home Affairs. Mr. A. Nilamani Singh, learned counsel for the petitioner, submitted that on these facts this is a fit case in which this court should direct the State respondent Nos. 1 and 2 to hold a DPC for consideration of the case of the petitioner taking into account all her service records prior to 18.6.88 and to further direct that in case the DPC finds the petitioner fit for promotion to the post of Upper Division Clerk, the petitioner should be given promotion to the post of Upper Division Clerk with retrospective effect with consequential service benefits from the date on which the respondent Nos. 3,4 and 5 who are junior to the petitioner as Lower Division Clerks were promoted on regular basis as Upper Division Clerks under the notification dated 19.3.90. On support of this submission, Mr. Nilamani Singh cited the judgment of the Apex Court in the case of the State of Mysore Vs. Syed Mahmood and others, AIR 1968 SC 1113.