Kunja Kishore Golmi and Others vs State of Manipur and Others

N. Surjamani Singh, J.—Upon hearing the learned Counsel on both sides, it appears that the writ Petitioners made a prayer in their writ petition for quashing the impugned orders i.e. Schedule II to the Manipur Civil Service Rules, 1965 vide Notification dated 8.11.90 as in Annexure A/2 to the writ petition issued by the Respondent/State, the notification dated 30.3.93 as in Annexure A/2A with a direction to the Respondents that fresh Schedule II to the Manipur Civil Service Rules, 1965, be issued including the posts of Inspector of Taxes and also for quashing the impugned order i.e. Schedule I to the Manipur Civil Service (Junior Grade) Rules, 1986, vide Notification dated 6.4.87 as in Annexure A/5 to the writ petition with a direction to the Respondents that fresh Schedule I to the Manipur Civil Service (Junior Grade) Rules, 1986 be issued including the posts of Inspector of Taxes.

According to the writ Petitioners, the Schedule I to the Manipur Civil Service Rules, 1965, hereinafter referred to as MCS Rules, 1965 specifies the authorised permanent strength of the Manipur Civil Service and the posts included therein and likewise, the Schedule II to the said MCS Rules, 1965 specifies the posts in the field of eligibility for promotion to the Grade II of the MCS. The said MCS Rules were amended from time to time and the latest amendment thereof, called the MCS (Amendment) Rules, 1990, vide Notification dated 8.11.90 and the MCS Rules (First Amendment) Rules, 1993 vide Notification dated 30.3.93 as seen in the document marked as Annexure A/1, A/2 and A/2A to the writ petition.

Under Rule 11 of the said MCS (Amendment) Rules, 1990, both the Schedule I and II to the MCS Rules, 1965, have been amended, thus excluding the post of Inspector of Taxes from the related Schedules. It is also the case of the writ Petitioners, that since the coming into force of the said MCS Rules 1965, till 7.11.90, i.e. the date immediately preceding the date of notification dated 8.11.90, the post of Inspector of Taxes had been included in the Schedule II to the MCS Rules, 1965; but the said post of Inspector of Taxes have been excluded from the Schedule II consequent upon the amendment of the said MCS Rules as seen in the document marked as Annexure A/2 and A/2A. Annexure A/3 and A/4, particularly, the document marked A/4 which is a netification dated 16.1.84 specifies the posts of Inspector of Taxes in Schedule II of the said Rules. As per the Manipur Civil Service (Junior Grade) Rules, 1986, published under the notification dated 6.4.87 as in Annexure A/5 to the writ petition, the post of Inspector of Taxes had been excluded from Schedule I of the said Rules. In other words, the Inspector of Taxes have lost the scope of promotion to the MCS which they had for 24 years 10 months and 7 days prior to the notification dated 8.11.90 as in Annexure A/2 to the writ petition.

The writ Petitioners are aggrieved because of the fact that the posts of Inspector of Taxes are not included in the cadre posts of the MCS (Junior Grade). According to the writ Petitioners, even after the amendment of Schedule I to the MCS Rules under the notification dated 8.11.90 as in Annexure A/1 to the writ petition, the posts of Taxation Officer is included in Schedule I; but after amendment of Schedule II, the posts of Inspector of Taxes, correspondingly lower than it, is no longer included in the said Schedule II. Rather, the posts of Sub-Dy. Collector continue to be included in Schedule II and whereas the post of Inspector of Taxes have been excluded from Schedule II to the MCS Rules, 1965. The writ Petitioners went on to contend that the exclusion of their posts i.e. Inspector of Taxes from Schedule II is in violation of the principles of natural justice and that the same is arbitrary and violative of Articles 14 and 16 of the Constitution of India, and that the non-inclusion of the said post of Inspector of Taxes in Schedule I of the MCS (Junior Grade) Rules, 1986, prejudicially affects the service conditions of the writ Petitioners. Being dissatisfied with the action of the Respondents, the writ Petitioners, in the name of their Association namely, the Association of Inspectors of Taxes, Imphal Manipur, submitted the representation dated 10.8.88 as in Annexure A/6 to the writ petition and also subsequent reminder from time to time and it continued till 11.12.90. As the Respondents had paid no head to the representations and claims of the writ Petitioners, they filed this writ petition for ventilating their grievances.

The case of the writ Petitioners is resisted by the Respondents by filing counter affidavit and contending inter alia that, the MCS Rules, 1965, has been amended from time to time by the Govt. as and when it is considered necessary. A post of Inspector of Taxes was included in Schedule II of the MCS Rules, 1965, and that the said post of Inspector of Taxes alongwith some other posts have been excluded from schedule II the MCS Rules, 1965, in the last amendment of 1990, as those posts have got their respective avenue of promotion in their respective departments; and that the post of Inspector of Taxes are Class III whereas Sub-Dy. Collectors are Class II (Gazetted) and their pay scales are also different as detailed below according to various revision of pays (R.O.Ps.).

Inspector of Taxes Sub-Deputy Collector (Rs.) (Rs.) 1966 225 - 600 300 - 800 1975 360 - 800 450 - 1075 1982 640 - 1410 760 - 1540 1987 1350 - 2200 1600 - 2660 1989 1850 - 2900 2200 - 3350 1990 1400 - 2300 1640 - 2900

According to the Respondents, as the two pay scales of the Inspector of Taxes, and Sub Dy. Collector indicated above, according to various R.O.Ps. are being different and avenue of promotion of Inspector of Taxes to the post of Addl. Taxation Officer in the Taxation Department, the claim of the Petitioners is quite unjustifiable and the allegations made by the writ Petitioners are quite untenable. It is also the case of the Respondents that it will also be out of order to give/include a post with lower scales of pay in MCS Rules Schedule II for promotion to MCS II by neglecting the higher posts of Addl. Taxation Officer as exclusion of the post of Inspector of Taxes from Schedule II to MCS Rules, 1965 or from exclusion from Schedule I to MCS (Junior Grade) Rules, 1986 is quite justified and it is not arbitrary and also not in violation of Articles 14 and 16 of the Constitution. The Respondents went on to contend that the framing of the Recruitment Rules and the Amendment of the related service Rules cannot be made in the interest of individual or a few individuals and as such, the State Govt. in the interest of all concerned, has made the related Service Rules and made necessary amendment of it from time to time.

Shri H.S. Paonam, learned Counsel for the writ Petitioners, contended that the main reason for excluding the post of Inspector of Taxes in Schedule I to MCS (Junior Grade) Rules, 1986, or in Schedule II to MCS Rules, 1965, as amended by Rules, 1990 was due to carrying of lower pay scale of Rs. 1400-2300 in as much as all the posts now included in schedule I to MCS (Junior Grade) Rules carry higher pay scale of Rs. 1640-2900 and that, the Inspector of Taxes has promotional avenue to the post of Addl. Taxation Officer (now Superintendent of Taxes) as per counter affidavit of the Respondents but these pleas are not tenable in the eye of law inasmuch as the Govt. under its own communique dated 5.1.95 as in Annexure R/l to the Reply affidavit of the writ Petitioners conceded, rather admitted that after due consideration, the Govt. has decided to include the post of Inspector of Taxes in the feeder posts for promotion to Manipur Finance Service by amending the existing Manipur Finance Service Rules. Shri H.S. Paonam, further contended that the writ Petitioners rather welcomed this decision of the Govt. as in Annexure R/1, but the Respondents-Govt. did not implement their decision as in Annexure R/1 till today. The document as in Annexure R/1 specifies about the decision of the Govt. to include the post of Inspector of Taxes in the feeder posts for promotion to Manipur Finance Service by amending the existing Manipur Finance Service Rules as Inspector of Taxes has since been deleted from feeder posts to MCS.

The plea and stand of the Respondents/Govt. is quite inconsistent and rather contradictory to the decision of the Respondents/Govt. taken in their communique dated 5.1.95 as in Annexure R/l to the Additional reply affidavit of the writ Petitioners and as such, the plea and the stand so far taken by the Respondents/Govt. is not tenable in the eye of law, Shri Paonam argued.

At the hearing, Shri L. Shyamkishore Singh, the learned Sr. Govt. Advocate for the State/Respondents, submitted that the writ Petitioners are not entitled to claim for inclusion of the post of Inspector of Taxes either in Schedule I of the MCS Rules, 1986 or in Schedule II of the MCS Rules, 1965, as it is the wisdom of the Respondents/Govt. to frame related Service Rules and Amendment of it from time to time and as such, this Court should not interfere in such a matter. Shri Shyamkishore Singh, supporting the case of the Respondents submitted all the stand and pleas taken in the counter affidavit. According to Shri Shyamkishore Singh, the writ petition is devoid of merit and the same is liable to be dismissed in limini accordingly.

On 9.6.97, this Court had afforded one week''s time to Shri Shyamkishore Singh, learned Senior Govt. Advocate to get instructions from the Respondents in the matter relating to the stand of the Govt. for inclusion of Inspector of Taxes in the feeder posts for promotion to the Manipur Finance Service Rules as indicated in the Govt. letter/communique dated 5.1.95 as in Annexure R/1 to the Additional reply affidavit.

At the hearing, Shri L. Shyamkishore Singh, produced a Govt. letter/order dated 17.6.97 No. 14/1/95-ASSN (TD)/DP Department of Personnel & Administrative Reforms (Personnel Division), Govt. of Manipur, and submitted that, in this regard it is very clear to the extent that Inspector of Taxes should be a feeder post for promotion to Manipur Finance Service Rules Grade III and the said post namely Inspector of Taxes should not be a feeder post for promotion to MCS.

Regarding the reconstitution/renotification of the Manipur Finance Service Rules, MPSC has advised that it would be expedient and appropriate to reconstitute and renotify the Manipur Finance Service Rules afresh and the concerned department of Personnel has been taking necessary action in this regard and the same may be notified shortly. To meet the ends of justice, I hereby form this Govt. letter/order dated 17.6.97 as part of the record and the same is marked as ''X'' for identification. For better appreciation of the said order/letter dated 17.6.97, the relevant portion of the same is quoted below:

With reference to your letter No. 102/352/93-GA(C):645 dated 9.6.97 on the above subject, I am directed to say that decision of the Government in this regard is very clear to the extent that Inspector of Taxes should be a feeder for promotion to Manipur Finance Service Grade-Ill and the said post namely Inspector of Taxes should not be a feeder post for promotion to MCS.

Regarding the reconstitution/re-notification of the Manipur Finance Service Rules, MPSC has advised that it would be expedient and appropriate to reconstitute/renotify the Manipur Finance Service Rules afresh as there is no any officer born on the Cadre of (old/existing) Manipur Finance Service Rules, 1979 at the moment. Accordingly, D.P. has been taking necessary action in this regard and the same may be notified shortly. The above position may be informed to the Hon''ble High Court.

As discussed over phone the relevant files bearing No. 1/8/90(MFS)/DP and No. 14/5/95-DP are sent herewith for reference.

It is well settled that although the writ Petitioners have a strong case for their claim made in the writ petition for inclusion of the Inspector of Taxes in Schedule II of the MCS Rules, 1965 as amended upto date and in Schedule I of the MCS Rules, 1986, by amending those related rules, it is beyond the competence of this Court to direct the State/Respondents to revise these related Rules as in Annexure A/2, A/2A and A/5 to the writ petition by issuing certain directions to the Respondents. However, this Court may require the Respondents to apply its mind to this aspect of the matter about the claim of the writ Petitioners and the decision so far taken by the Respondents under the related letter/communique dated 5.1.95 as in Annexure R/l and the Govt. letter dated 17.6.97 produced by the learned senior Govt. Advocate marked as ''X'' and to make necessary modification, reconstitution of the Manipur Finance Service Rules afresh.

In order to appreciate the correct and exact propositions of law in this matter, a reference can be made to two decisions of the Apex Court rendered in Swapan Kumar Choudhary and others Vs. Tapas Chakravorty and others, and Anr. in AIR 1988 1033 (SC)

In Swapan Kumar Choudhury v. Tapas Chakravorty (supra), the Apex Court held thus:

Thus there is much force in the contention of Shri Satish Chandra that as in the main wing of Inspectors of Factories there are electrical experts, mechanical experts and civil experts, in the chemical wing there are chemical experts. According to us, the learned Single Judge of the High Court was right in stating that if electrical, mechanical and civil engineers could form part of one cadre, so could, chemical engineers. Even so, we would agree with the learned Solicitor General that by giving the directions, in question, the High Court almost revised the recruitment rules which was not within its competence. We also agree that by directing the State to make available the higher post to Deputy Chief Inspector of Factories (Chemical), a legal error was committed, as the same amounted to laying down conditions of service of Govt. employees, which either the State legislature in exercise of its power under Article 309 of the Constitution, or the State Government in exercise of the power under the proviso to that Article can do. However, on being satisfied a strong case for forming a common cadre all exists, we require'' the State Govt. to apply its mind to this aspect of the matter, and so too, to make available the same pay scale of all types of Inspectors of Factories. The distinction which has been repeatedly highlighted by the learned Solicitor General in the working of different wings is, according to us, a distinction without a difference. This submission of the learned State Counsel, has, therefore, not impressed us.

Before closing, we may deal with the additional submission advanced by the counsel for the Appellants in the appeal arising out of S.L.P.(C) No. 14894/94. The same is that if higher posts are made available to the Deputy Chief Inspector of Factories (Chemical) the promotional chances of the main wing of Inspector of Factories would be jeopardised. This submission is misconceived inasmuch as if a common cadre is formed instead of 9 posts of Deputy Chief Inspector which were earlier available to the Inspector of Factories in the main wing, 10 posts would become available. This apart, those Deputy Chief Inspector of factories in the main wing who had come to be appointed prior to the Deputy Chief Inspector of Factories (Chemical), would remain senior and would have higher claim to the promotional post of Joint Chief Inspector and, as such, no harm would really be caused to them because of the formation of a common cadre.

In Raghunath Prasad Singh v. Secy. Home (Police) Deptt. Govt. of Bihar (supra), the Apex Court held thus:

Before we part with the appeal, we would like to take notice of Anr. aspect. In course of hearing of the appeal, to a query made by us, learned Counsel for the Appellant indicated the reason as to why the Appellant was anxious to switch over to the general cadre. He relied upon two or three communications which are a part of the record where it has been indicated that there is no promotional opportunity available in the wireless organisation. Reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly. We would, therefore, direct the State of Bihar to provide at least two promotional opportunities to the officers of the State Police in the wireless organisation within six months from today by appropriate amendments of Rules. In case the State of Bihar fails to comply with this direction, it should, within two months thereafter, give a fresh opportunity to personnel in the Police wireless organisation to exercise option to revert to the general cadre and that benefit should be extended to every one in the wireless organisation.

Upon hearing the learned Counsel on both sides and also on perusal of the available materials on record, I am of the view that the writ Petitioners have a genuine and a strong case for inclusion of the posts of Inspector of Taxes in the feeder posts for promotion to Manipur Finance Service Rules by amending the existing Manipur Finance Service Rules, as the Inspector of Taxes has since been deleted from feeder posts to MCS, in view of the decisions taken by the Respondents under their office letter/communique dated 5.1.95 as in Annexure R/l and their own letter dated 17.6.97 marked as ''X'' relating to the decision of the Govt. to the extent of the inclusion of the Inspector of Taxes as feeder posts for promotion to Manipur Finance Service Rules and the said post namely Inspector of Taxes were excluded from the feeder post for promotion to MCS.

Applying all these established principles of law laid down by the Apex Court and also considering the existing facts and circumstances of the case, this Court require the Respondents to apply its mind in the matter and to consider the case of the writ Petitioners in the light of the aforementioned established principles of law as well as the genuine claim of the writ Petitioners. On perusal of the aforementioned letter/communique dated 5.1.95 as in Annexure R/l and Anr. office Govt. letter/order dated 17.6.97 marked as ''X'', I am constrained to pass the following order:

The Respondents are directed to finalise the matter relating to the inclusion of the post of Inspector of Taxes in the feeder posts for promotion to Manipur Finance Service in the light of their decision made under the documents/letters as in Annexure R/l and ''X'' within a period of two months from the date of receipt of this judgment and order. This Court hope and trust that the Respondents shall ventilate the grievances of the writ Petitioners considering all these facts in existence.

For the reasons, observations and directions made above, this writ petition is disposed of. No cost.

Despite disposal of this writ petition, I am constrained to pass the following order, in view of the nature of the present case.

This judgment and order shall not stand on the way of the Respondents to include the post of Inspector of Taxes in Schedule II to the MCS Rules, 1965 and Schedule I to the MCS (Junior Grade) Rules, 1986.