R.K. Manikanta Singh vs K. Ibotombi Singh and Others

Ranjan Gogoi, J.—The Judgment and Order dated 28.6.2000 passed by the learned single Judge allowing the writ petition filed by the principal respondents in the appeal and setting aside the impugned order dated 6.7.1999 passed in favour of the writ appellant relaxing the stipulation with regard to requisite length of service in the post of Superintending Engineer for promotion to the post of Additional Chief Engineer, under the relevant Recruitment Rules in force, is the subject of appeal in the present proceedings.

We have heard Mr. R.K. Manikanta Singh, the appellant in person. We have also heard Mr. M. Koteswar Singh, learned counsel appearing for the principal respondents and Mr. H.N.K. Singh, learned Advocate General, Manipur.

Though the Misc. application, i.e., CM application No. 47/2000 praying for stay of the order dated 28.6.2000, impugned in the appeal, was posted for consideration, as elaborate arguments have been advanced by the rival parties touching upon the merits of the appeal we have considered it appropriate to pass final orders in the appeal itself.

The appellant, appearing in person, has very elaborately recited, before us the long history of his grievances leading to the institution of the present appeal, in order to assess the relevance of such grievances expressed to the issues arising in the present appeal, we had permitted the appellant in person to make all submissions as he had desired to make. At the end of the arguments advanced, we find the long narration advanced by the appellant in person to be of little relevance to the question involved in the present appeal which is a fairly simple one.

The order dated 6.7.1999 relaxing the provisions of the Recruitment Rules in force, as noticed hereinabove, was passed in favour of the writ appellant which entitled him to a consideration of his case for promotion from the rank of Superintending Engineer, which he was then holding, to the higher post of Addl. Chief Engineer. Aggrieved by the order dated 6.7,1999 passed, the principal respondents herein instituted the writ proceeding in question, i.e., WP(C) No. 1134/99 calling into question the order dated 6.7.1999. According to the principal respondents/writ petitioners, they were senior to the present appellant in the rank of Superintending Engineer. The order dated 6.7.1999 relaxing the requisite length of service for promotion to the rank of Addl. Chief Engineer in favour of the present appellant, according to the writ petitioners, was passed without any reasonable cause ; no reasons were assigned and that apart, the said order was passed without consultation with Public Service Commission, which was mandatory in terms of Rule 5 of the Recruitment Rules. The arguments advanced on behalf of the writ petitioners found favour with the learned single Judge and consequently, by the impugned order dated 28.6.2000, the writ petition was allowed and the order dated 6.7.1999, impugned, was quashed. Aggrieved, the respondent No. 4 in the writ proceedings has instituted the present appeal.

It may be noticed herein that during the pendency of the present appeal, the writ petitioners/principal respondents in the appeal have been promoted to the higher post of Addl. Chief Engineer in October 2001 and respondent No. 4/writ appellant retired on superannuation in the rank of Superintending Engineer w.e.f. 28.2.2002.

Aperusal of the Judgment passed by the learned single Judge would go to show that the sole basis on which the writ petition was allowed and the impugned order dated 6.7.1999 was interfered with is that the order dated 6.7.1999 was passed without any consultation with the Public Service Commission, The learned single Judge took the view that as the provisions of Rule 5 mandated exercise of the power of relaxation only in consultation with the Public Service Commission, the impugned order dated 6.7.1999 was passed in breach of the aforesaid mandatory requirement of Rule 5 and, therefore, non est in law. The correctness of the above view taken by the learned single Judge is required to be determined by us in the present appeal.

By referring to the impugned order dated 6.7.1999, the appellant appearing in person, has contended that the impugned order itself would ex facie go to show that consultation with the Public Service Commission was made prior to the issuance of the order dated 6.7.1999. In this connection, the appellant has referred to the contents of paragraph 3 of the impugned order dated 6.7.1999 which is to the effect that the said order has been passed with reference to the Manipur Public Service Commission''s letter No. 8-A/72/97-MPSC(P) dated 16.1.1998. It is, therefore, contended that the learned single Judge has gone clearly wrong in holding that the impugned order dated 6.7.1999 was not proceeded by the requisite consultation with the Public Service Commission. Arguing further, the appellant in person, has contended that even assuming that there was no consultation with the Public Service Commission, such lack of absence of consultation would not have the effect of invalidating the order dated 6.7.1999 and that too at the instance of the writ petitioners. In support thereof reliance has been placed on a Judgment of the Apex Court in the case of G.S. Lamba and Others Vs. Union of India (UOI) and Others, The appellant has also argued that in the present case, the State of Manipur, though a respondent in the original writ proceeding, has taken the stand that the impugned order dated 6.7.1999 was not a valid order, which besides being peculiar and unusual, is a stand which would not be available to the State as a respondent. A respondent State can not collaterally challenge its own order without instituting a fresh proceeding, it is contended.

Mr. H.N.K. Singh, learned Advocate General for the State of Manipur as well as Mr. H. Koteswar Singh, learned counsel for the principal respondents have sought to controvert the submissions advanced on behalf of the appellant by contending that the impugned order dated 6.7.1999 was passed without any consultation with the Public Service Commission and, therefore, was not in compliance with the mandatory requirements of the Rule 5 of the Recruitment Rules in force. The letter dated 16.1.1998 to which reference has been made in the impugned order dated 6.7.1999 does not in any manner indicate either the approval of the Public Service Commission or that any consultation with the Public Service Commission was made. This, it is contended, is ex facie apparent from the letter dated 16.1.1998 which has been enclosed to the States affidavit. It is further contended that the impugned order dated 6.7.1999 was passed on mistaken facts and immediately after the Public Service Commission by its letter dated 7.8.1999 had informed the State authority that no consultation with the Public Service Commission was made prior to the order dated 6.7.1999 the State authority had issued the order dated 20.8.1999 (Annexure-G/8 to the State''s affidavit) keeping in abeyance the impugned order dated 6.7.1999. The order of abeyance as aforesaid was later vacated due to certain interim directions passed by this Court, which vacation will, however, not obliterate the fact that much before the writ petition in question was filed, the State had already taken the stand that the order dated 6.7.1999 was non est in law.

Mr. N. Koteswar Singh, learned counsel for the principal respondents has further argued that the Respondents writ petitioners were senior to the present appellant and the order dated 6.7.1999 placed the writ appellant in an advantageous position for promotion to the higher post of Addl. Chief Engineer. The said order, it is contended, does not disclose any reason for the relaxation granted and, therefore, the same will not withstand judicial scrutiny. Lastly, it has bean argued on behalf of the respondents that as the appellant had retired from service on superannuation w.e.f. 28.2.2002, this appeal has become infructuous and the same does not disclose any live issue for adjudication.

The submissions advanced on behalf of the rival parties have been duly considered. While it is true that the respondents in the writ petition can not be allowed to collaterally challenge the order impugned, in the facts of the present case, what is noticable is that the State by order dated 20.8.1999 had ordered for keeping the order dated 6.7.1999 in abeyance until further orders. This was on account of the fact that the correspondences made by the Public Service Commission had revealed that no consultation with the said body was made prior to exercise of power of Relaxation in favour of the writ appellant and that the order dated 6.7.1999 was passed on incorrect facts. In view of the aforesaid fact situation, we do not consider it proper to overlook and/or ignore the stand taken by the State in the present proceeding. The fact that the writ appellant had retired from service on superannuation on 28.2.2002, in our considered view, would not render the writ appeal futile, as contended by the respondents, in as much as if the validity of the impugned order dated 6.7.1999 is upheld by this Court, certain consequential benefits may flow to the appellant.

Having decided the aforesaid two issues in the manner indicated, we may proceed to examine the main question in the appeal, i.e., whether there was any prior consultation with the Public Service Commission before the order dated 6.7.1999 was issued and if not, whether the same would invalidate the order.

The first question, i.e., whether there was any consultation with the Public Service Commission stands concluded by the communication dated 7.8.1999 (Annexure-G/7 to the State''s affidavit) of the M.P.S.C. which clearly recites that the relaxation granted in favour of the appellant was not approved by the Public Service Commission and what was indicated in the communication dated 16.1.1998 (Annexure-G/3 to the State''s affidavit) as referred to the impugned order dated 6.7.1999 is that the Recruitment Rules contain a relaxation clause and that a proposal for promotion of the appellant to the post of Addl. Chief Engineer may be sent.

The above facts would hardly constitute consultation with the Public Service Commission as contemplated in Article 320(3)(c) of the Constitution or Rule 5 of the Recruitment Rules. We are, therefore, inclined to hold that in the instant case there was no effective consultation with the Public Service Commission before the order dated 6.7.1999 was issued.

The next question that has now to be considered is whether the absence of consultation with the Public Service Commission would invalidate the order. As early as in the year 1957, the Apex Court in the case of State of U.P. Vs. Manbodhan Lal Srivastava, has held that ''Consultation'' as required under Article 320(3)(c) of the Constitution is not mandatory and the absence of any such consultation does not afford any cause of action to an aggrieved employee. The Apex Court while holding such consultation not to be mandatory was primarily guided by the consideration that as the recommendation made by the Public Service Commission, after holding requisite consultation, was not binding on the Government, to hold consultation to be mandatory would amount to a contradiction in terms. The Apex Court, however, made it clear that the view that consultation is not mandatory or the recommendation of the Public Service Commission is not binding on the Government, should not be construed to mean that it is open for the Union or the States to dispense with such consultation. The aforesaid law laid down has been reiterated in the case of G.S. Lamba and Ors. v. Union of India and Ors. (supra) and several other pronouncements of the Apex Court. In view of the law laid down by the Apex Court, as aforesaid, we are of the considered view that the order of relaxation dated 6.7.1999 would not become non est in law due to absence of consultation with the Manipur Public Service Commission.

Having held as aforesaid, we must now proceed to determine what relief/reliefs can be afforded to the appellant at this stage. In the facts of the present case, we are not inclined to put the clock back by ordering for a de novo consideration of the case of the writ appellant for promotion to the post of Addl. Chief Engineer on the basis of the relaxation given to him by the impugned order dated 6.7.1999. The result of any such de novo consideration as on the date when the appellant had become eligible in terms of the relaxation granted to him can only result in monetary benefits to the writ petitioner which monetary benefits, we are inclined to hold, the writ appellant would not be entitled to. Firstly, because the facts of the present case do not reveal any conscious deprivation of the appellant''s rights by the State authorities and secondly, on the principle of ''No work no pay'' which principle, in our considered view, must be made applicable to service jurisprudence in appropriate cases. On the contrary, we are inclined to hold that the ends of justice would be met if the State respondents are directed to notionally fix the pay of the writ appellant in the scale of Addl. Chief Engineer w.e.f. such date/dates when the principal respondents in the appeal were promoted to the said post and on that basis to compute the pensionary benefits due to the appellant. The appeal shall stand closed in terms of the above directions.