1. Heard Shri Kh. Tarunkumar, the learned counsel appearing for the petitioner; Shri I. Lalitkumar, the learned Sr. Advocate assisted by Shri Rojeshon, the learned counsels appearing for the MPSC and Smt. Th. Sobhana, the learned Government Advocate appearing for the State respondents.
2. The instant writ petition has been filed by the petitioner praying for quashing/setting aside the impugned letter dated 20-09-2007 issued by the Manipur Public Service Commission (hereinafter referred to as "the MPSC"). Another prayer made in the petition is to direct the respondents to hold a special/fresh DPC for appointment on promotion to the post of Librarian of the Government College.
3.1. According to the petitioner, he was initially appointed
as the Assistant Librarian at the United College, Chandel which
was, at the relevant time, an Aided College vide order dated
05-04-1990 issued by the Chairman, Governing Body in
pursuance of a resolution thereof. While the petitioner was
serving in that capacity, the Under Secretary (DP), Government of
Manipur published the Recruitment Rules, 1991 for appointment
to the post of Librarian of the Government Colleges vide order
dated 31-08-1991 and as per the said Recruitment Rules 1991,
the post of Librarian is to be filled up by promotion failing which
by direct recruitment. The essential qualifications prescribed
therein are: (a) First or Second Class B.A./B.Sc./B.Com. Degree
plus a First or Second M.Lib. Science Degree from a recognized
University or (b) First or Second Class M.A./M.Sc./M.Com.
Degree and 1st or 2nd class B.Lib. from a recognized University.
3.2. The United College, Chandel was taken over by the
State Government vide its order dated 26-07-1996 and the
petitioner along with other incumbents were appointed to their
respective posts w.e.f. 01-06-1996 vide order dated 05-11-1996
issued by the Secretary (Higher Education), Govt. of Manipur
subject to the conditions mentioned therein. Accordingly, the
petitioner was appointed to the post of Assistant Librarian in the
scale of pay of Rs. 1350-2200/- p.m. and after the petitioner
having been appointed to the post of Assistant Librarian, he was
permitted to undergo/enrol for studying Degree of Bachelor in
Library and Information Science at Indira Gandhi National Open
University which he completed in the year 1998. The petitioner
underwent further studies of Master''s Degree in Library and
Information Science at the Indira Gandhi National Open
University and after completion of the said courses in Library &
Information Science, the petitioner submitted a representation
dated 03-12-2004 to the Director of Hr. Education, Government
of Manipur praying for grant of promotion to the post of Librarian
through proper channel.
3.3. The Additional Director of University & Hr. Education,
Government of Manipur issued a notification dated 01-08-2006
publishing the Seniority List of Assistant Librarians of the
Government Colleges wherein the name of the petitioner
appeared at Sl. No. 5. Pursuant to the said representation, the
State Government proposed to the MPSC names of Assistant
Librarians of the Government Colleges including that of the
petitioner for promotion to the post of Librarian which was
turned down by the MPSC vide its letter dated 20-09-2007,
impugned herein, on the ground that as per the existing UGC
Guidelines adopted by the Government of Manipur, the post of
Librarian of Government Colleges is to be filled up by direct
recruitment and there is no provision for appointment by
promotion. Prior to availing of a copy of the said letter
dated 20-09-2007, the petitioner submitted a representation
dated 31-10-2007 to the Secretary, MPSC, Imphal requesting
him to furnish a copy of the said proposal. Thus, being aggrieved
by the said letter dated 20-09-2007, the instant writ petition has
been filed by the petitioner.
5. The learned Single Judge vide its Judgment and Order dated 31-07-2012 allowed the writ petition holding inter-alia that in the light of the averments made by the State respondents in their Supplementary Affidavit filed on behalf of the respondent Nos. 2 and 3 that the State Government which is the competent authority, has not adopted the UGC Guidelines and resultantly, the impugned letter dated 20-09-2007 cannot be sustained and is accordingly quashed. A writ appeal being W.A. No. 19 of 2013 was preferred by the MPSC which came to be allowed by this court on 13-11-2014. In the said writ appeal, the MPSC assailed the order of the learned Single Judge on the sole ground that even if the Recruitment Rules, 1991 are applicable, the respondent No.1/the petitioner is required to have 2nd Class Degree at the Graduation level and the respondent No.1/the petitioner having not secured the percentage of marks required for the 2nd Class, is not eligible for promotion to the post of Librarian. In view of the stand taken by the MPSC that the respondent No.1/the petitioner is not eligible for promotion, as he passed the B.Sc. Examination in simple pass securing 48.4% and since the question has not been addressed to by the learned Single Judge even though it was raised in the counter, the Division Bench of this Court sent the case back to the learned Single Judge for disposal of the writ petition afresh. One of the questions formulated by the Division Bench of this Court is as to whether the respondent No.1/the petitioner is qualified to be promoted to the post of Librarian or not as per the Recruitment Rules, 1991?
6. Shri I. Lalitkumar, the learned Senior Advocate appearing for the MPSC has submitted that while remitting the matter to the learned Single Judge of this court, the Division Bench has kept all issues open for consideration by the learned Single Judge and accordingly, he has further submitted that after the adoption of the UGC Guidelines by the State Government, the post of Librarian can be filled up by direct recruitment only. His submission has no substance at all in view of the stand taken by the State Government in its supplementary affidavit that vacancies in respect of the post of Librarian occurred prior to the adoption of the UGC Guidelines, must be filled up in accordance with the Recruitment Rules, 1991. Therefore, the only question to be considered by this court is the one formulated by the Division Bench and so far as this question is concerned, Shri Kh. Tarunkumar, the learned Counsel appearing for the petitioner has fairly submitted that if the provisions of the Recruitment Rules, 1991 are strictly applied and followed, the petitioner will become ineligible for appointment on promotion. Then, the only submission that he made is that in the given facts and circumstances, the petitioner could have been considered for appointment on promotion, for which he has emphasised three circumstances - one, while framing the Recruitment Rules, 1991, the State Government has committed an error because it has not taken into account the fact that there was no grading of 1st and 2nd Class at two years Degree Course under the 10+2+2 system in the year 1985; two, under the Recruitment Rules 1991, the State Government is competent to relax the provisions thereof which it has failed to do so and three, a person who passed his two years Degree Course under the 10+2+2 system with simple pass securing less marks than him, has been appointed as Librarian on regular basis. As regards the first circumstance, it is true that the State Government, while framing the Recruitment Rules, 1991, has not taken into account the fact that there was no grading of 1st and 2nd Class at two years Degree Course under the 10+2+2 system when the petitioner did his two years Degree Course in 1985. It may be noted that under the 10+2+2 system, grading was only pass and distinction. But since the validity and correctness of the Recruitment Rules, 1991 have not been questioned in the present writ petition, this court cannot go into it. However, the fact remains that the petitioner has been put to disadvantage, for no fault of his, as a result he can never be considered for promotion, although he has served for more than 25 years as Assistant Librarian. With respect to the second circumstance, the grievance of the petitioner is that although enough power is conferred upon the State Government under Rule 4 to relax the provisions of the Recruitment Rules 1991, it has failed to exercise it. The learned counsel appearing for the petitioner, contending that the State Government ought to have exercised it to remove petitioner''s disadvantage, has relied upon the decision of the Hon''ble Supreme Court in Ashok Kumar Uppal & anr. Vs. State of J & K and ors., reported in (1998) 4 SCC 179 wherein the Government promoted five Stenographers to the post of Senior Stenographers by relaxing the requirement of possessing the requisite qualification. The writ petition questioning the State action was dismissed and the letters patent appeal filed against the judgment and order of the learned Single Judge, was also dismissed in limine. Allowing the appeal, the Hon''ble Supreme Court held:
"30. In view of the above, the Government can exercise
the power to relax the Rules in all those cases in
which hardship is caused in the implementation of
those Rules to meet a particular situation or where
injustice has been caused to either individual
employee or class of employees. Of course, this
power cannot be exercised capriciously or
arbitrarily to give undue advantage or favour to an
individual employee.
31. Since power to relax the Rule was available to the
Government and since, on a scrutiny of facts of this
case, we are satisfied that the power to relax the
standard prescribed for promotion to the post of
Senior Scale Stenographer was properly exercised
so that the appellant, who topped the list of 26
candidates, recommended by the State Recruitment
Board for promotion by relaxing the Rules as they
were nearest to the prescribed standard, may be
promoted to the posts on which persons who were
far below in merit, and even those who had failed in
the test, had already been promoted as Senior Scale
Stenographers, the order dated 19-12-1986 by
which appellants were promoted has to be upheld
as valid and properly passed by the State
Government."
The facts of the said case are not exactly the same
but are similar in the sense that in the present case, the State
Government is empowered to relax the provisions of the
recruitment rules. Without the said recruitment rules being
relaxed, the petitioner cannot be considered for promotion at all.
Although the occasions on which the power of relaxation can be
exercised, are not stipulated therein, the impossibility of passing
two years Degree Course at 1st or 2nd Class by the petitioner
could be one of the valid reasons for relaxation of the
Recruitment Rules, 1991. As regards the third circumstance,
Shri I. Lalitkumar, the learned Senior Advocate appearing for the
MPSC has vehemently contended that an illegal order issued by
the State Government cannot be allowed to be perpetuated and
in support of his contention, he has relied upon the decision
rendered by the Hon''ble Supreme Court in Pramod Kumar
Vs. UP Secondary Education Services Commission & ors.,
reported in (2008) 7SCC 153 wherein the appellant was
appointed to a teaching post, for which prescribed educational
qualification was B.Ed. Degree, on the basis of a degree obtained
from an Institution not recognised by the UGC. Accordingly, he
was given an opportunity to obtain degree from a recognised
University, to which he produced only mark-sheets and not
degree from Maharishi Dayanand University. Later on, a show
cause notice was served upon him on the ground that he
obtained appointment through fabricated and illegal B.Ed.
Degree and on completion of the departmental proceeding, his
service was terminated. The Hon''ble Supreme Court has held
that an appointment which is contrary to the statute/statutory
rules would be void in law. An illegality cannot be regularised,
particularly when the statute in no unmistakable term says
so. Only an irregularity can be. He has placed reliance also in
State of Karnataka & ors. Vs. Gadilingappa & ors., reported
in (2010) 2 SCC 728 wherein the respondents were appointed
as primary school teachers without possessing the TCH
qualification, which was the minimum prescribed qualification
for the post of teacher, the Hon''ble Supreme Court held:
"6. Admittedly, the respondents herein were working
as primary school teachers for a long period of time
and they had rendered service as such
continuously without any break. However, after
perusing the relevant documents on record what
comes to light is the fact that none of the
respondents had undergone the TCH course, which
was the minimum prescribed qualification at the
relevant time for being appointed to the post of a
teacher. Since the respondents did not possess the
minimum prescribed qualification and because of
which their appointment was in contravention of
the Cadre and Recruitment Rules, we are of the
considered view that their appointments were
illegal appointments."
He has placed further reliance in State of Orissa &
anr. Vs. Mamata Mohanty, reported in (2011) 3 SCC 436
wherein the question as to whether Article 14 of the Constitution
is meant to perpetuate an illegality arose, the Hon''ble Supreme
Court held:
"56. It is a settled legal proposition that Article 14 is
not meant to perpetuate illegality and it does not
envisage negative equality. Thus, even if some
other similarly situated persons have been granted
some benefit inadvertently or by mistake, such
order does not confer any legal right on the
petitioner to get the same relief. (vide Chandigarh
Admn. v. Jagjit Singh, Yogesh Kumar v. Govt. of
NCT of Delhi, Anand Buttons Ltd. v. State of
Haryana, K.K. Bhalla v. State of M.P., Krishan
Bhatt v. State of J&K, Upendra Narayan Singh and
Union of India v. Kartick Chandra Mondal.)"
It may be noted that all that the learned counsel
appearing for the petitioner submitted is that a person who is
neither 1st Class nor 2nd Class in two years Degree Course and
who passed it in simple pass securing less marks than him,
has been regularized as Librarian and therefore, the case of the
petitioner may also be considered for appointment on promotion
as Librarian. It is not the case of the petitioner that an illegal
order issued by the State Government ought to be allowed to
be perpetuated and moreover, the State Government has not
decided that the order dated 31-08-1994 issued by it is illegal
nor has it been declared by any court as illegal. It may be
relevant to mention here that the State Government in its
affidavit dated 29-07-2016 states that on the recommendation of
a special DPC, it has regularized the services of two ad-hoc
Librarians vide order dated 31-12-2013 issued by the
Department of Higher Education but its justification given by
the State Government was that it was not the case of granting
promotion but a case of regularization based on one time
Government policy. However, one thing which needs to be noted
is that in respect of the appointment of a Librarian, whether it
is by way of direct recruitment or promotion, the requisite
qualifications remain the same. Therefore, although there can be
no any dispute as regards the law laid down by the Hon''ble
Supreme Court in the said decisions relied upon by the learned
counsel appearing for the MPSC, the same is not relevant so far
as the present case is concerned. The further submission of the
learned counsel appearing for the petitioner is that the fact that a
person who secured less marks than him in the examination of
two years degree course, has been regularized as Librarian, could
be one of the circumstances for consideration of the petitioner''s
case. Having heard the learned counsels appearing for the
parties, this court is of the view that in the peculiar facts and
circumstances of the present case as narrated herein above, it
may be appropriate for the respondents to consider the case
of the petitioner for appointment on promotion as Librarian.
Another aspect which needs to be kept in view is that the
petitioner is on the verge of retirement and in case his case is
not considered for promotion as Librarian, he will retire as
Assistant Librarian with no promotion during his entire career as
government servant.
7. For the reasons stated hereinabove, the instant writ petition is disposed of with the direction that the respondents shall consider the case of the petitioner for appointment on promotion as Librarian, within a period of one month from today, in terms of the circumstances narrated hereinabove at para 7 and shall issue a speaking order in respect thereof.
