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Judgment
Heard Shri B.P. Sahu, the learned Sr. Advocate appearing for the petitioner; Shri N. Kumarjit, the learned Advocate General appearing for the respondent No.1, Shri L. Raju, the learned counsel appearing for the respondent No. 2 and Shri Th. Khagemba, the learned counsel appearing for the private respondent.
By the instant writ petition, the petitioner has prayed for issuing a writ of certiorari or any other appropriate writ to quash and set aside the impugned order dated 06-07-2017 and to direct the respondents to allow her to hold the post of the Project Director (ATMA), Ukhrul in view of the government order dated 20-06-2017 issued by the Under Secretary (Agri), Government of Manipur.
The facts of the case as narrated in the writ petition are that after the formation of the Society called "the Agricultural Technology Management Agency" (hereinafter referred to as "the ATMA"), the Director of Agriculture, Manipur issued an advertisement dated 07-05-2013 inviting applications from amongst the eligible officers/ officials of the Department of Agriculture and Allied Sector for filling up various posts viz. the Director, SAMETI; the Deputy Director; the Project Director (ATMA) and the Deputy Project Director (ATMA) on deputation. After the selection process was over and after the officials having been appointed on deputation basis, the Director of Agriculture, Manipur issued an order dated 20-11-2013 by which they were posted in different places shown against their names. By the said order, the petitioner was posted on deputation as the Deputy Project Director (ATMA), Ukhrul and while she was working in that capacity, the Under Secretary (Agriculture), Government of Manipur issued an order dated 20-06-2017 directing her to work as the Project Director (ATMA), Ukhrul, as stop gap arrangement, in addition to her normal duties until further order and in compliance with the said order, the petitioner submitted her joining report dated 23-06-2017 to the Deputy Commissioner / the Chairman, Governing Board, ATMA, Ukhrul. Since the said order dated 20-06-2017 is silent as to how the taking over and handing over of charge was to be done, the petitioner submitted a letter dated 03-07-2017 to the Director (Agri.), Government of Manipur for taking self-charge. To her shock and surprise, the Deputy Secretary (Agri.), Government of Manipur issued an order dated 06-07-2017 thereby keeping the earlier order dated 20-06-2017 in abeyance without assigning any work of Project Director (ATMA) to the petitioner, on technical ground, until further order. Being aggrieved by the said order dated 06-07-2017, the instant writ petition has been filed by the petitioner on the inter-alia grounds that since the petitioner has been in the ATMA on deputation since 20-11-2013, she ought to be given preference for holding the charge of the Project Director (ATMA). As per the Office Memorandum dated 29-11-2013, while the petitioner is enjoying the scale of pay fixed for the post of the Deputy Project Director (ATMA) at Rs.15,600-39,100/- with a grade pay of Rs. 5,400/-, the private respondent who was serving as the Deputy Director in the Directorate of Agriculture was enjoying the scale of pay of Rs. 9,300 -34,800/- with grade pay of Rs. 5,400/-. In a similar circumstance, Smt. A. Sanatombi Devi who was serving as the Deputy Project Director (ATMA) was given the charge of Project Director (ATMA), Senapati vide order dated 06-05-2015 on account of Shri Y. Ranjit Singh, the Project Director (ATMA) being repatriated to the Directorate of Agriculture. The acts of the respondents allowing the private respondent to work as the Project Director (ATMA), Ukhrul without considering the case of the petitioner, are illegal, unlawful, arbitrary, malafide and discriminatory.
In order to contest the writ petition, an affidavit-in-opposition on behalf of the respondent No. 1 has been filed wherein it has been stated that while the State Agricultural Management and Extension Training Institute (hereinafter referred to as "the SAMETI") has been established at the State level, the ATMA has been established at the District level. In an advertisement dated 07-05-2013 issued by the Department of Agriculture, Manipur as regards the appointment of the Deputy Project Director (ATMA) and the Project Director (ATMA), the essential qualifications in respect thereof have been prescribed and after the process of selection having completed pursuant to the said advertisement, the petitioner who was serving as the Village Extension Worker (VEW) was appointed as the Deputy Project Director (ATMA) on deputation and her service was extended for a period of two years vide Government order dated 02-02-2016. It has further been stated that the petitioner is not eligible to hold the post of the Project Director (ATMA) on deputation. On the other hand, the private respondent who was appointed to the post of the Deputy Director on promotion vide order dated 22-11-2016, was posted as the District Agriculture Officer/ the Project Director (ATMA), Ukhrul w.e.f. 01-01-2017. In the meanwhile, the petitioner made an application dated 11-04-2017 to the then Hon''ble Minister, Agriculture for allowing her to hold the charge of the Project Director (ATMA) stating therein that the post is lying vacant. On the basis of the said application and without verifying the fact that the private respondent has been holding the charge of the Project Director, ATMA, Ukhrul w.e.f. 01-01-2017, the Under Secretary (Agriculture), Government of Manipur issued the said order dated 20-06-2017 allowing the petitioner to work as the Project Director (ATMA). After knowing the fact that the post of the Project Director (ATMA), Ukhrul is being held by the private respondent, the Deputy Secretary (Agriculture), Government of Manipur issued the said order dated 06-07-2017 thereby keeping the said earlier order dated 20-06-2017 in abeyance. It has further been stated that in the case of Smt. A. Sanatombi Devi, she possess all the requisite qualifications for holding the post of the Project Director (ATMA) and is accordingly allowed the hold the charge of it. The petitioner being a Village Extension Worker in the Office of the District Agriculture Officer is lower by three grades in the hierarchy of posts than the private respondent. In the rejoinder filed by the petitioner, it has been stated that it is the private respondent who is not eligible for the post of the Project Director (ATMA) for the reason that he is from the parent department i.e., the Agriculture Department while the petitioner has been serving in the ATMA for almost four years as the Deputy Project Director (ATMA). The qualification given in the advertisement is not the essential qualification but is only the desirable one. In the guidelines of the ATMA, the essential qualification prescribed for appointment to the post of the Project Director (ATMA) is only the post graduate degree in Agriculture.
The private respondent also has filed an affidavit-in-opposition raising a preliminary objection as regards the maintainability of the writ petition on the ground that the petitioner has not approached this court with clean hands. It has further been stated that the petitioner has not disclosed as to how the order dated 20-06-2017 came to be issued in her favour. The order dated 20-06-2017 was issued by the Under Secretary (Agriculture), Government of Manipur on the basis of an application addressed to the then Hon''ble Minister, Agriculture by misleading that the post is lying vacant, although the same is being held by the private respondent. The writ petition is bad in law due to non-joinder of necessary party namely, the ATMA and also bad in law for the reason that the petitioner has not challenged the order dated 22-11-2016 by which the private respondent was appointed on promotion as the Deputy Director and posted as the District Agriculture Officer/ the Project Director (ATMA), Ukhrul. It has further been stated that at the time when the petitioner applied for the post of the Deputy Project Director (ATMA), her pay scale attached to the post of the VEW was Rs. 5200 -20200-1900/- and the petitioner is a mere VEW while the private respondent is a Deputy Director (Agri) and in between them, there are two more posts-one, Assistant Agriculture Officer and two, Agriculture Officer.
Extension reforms in India were pilot tested in some States from 1998 to 2005 and with the experiment being successful, the scheme "support to State Extension Programme for Extension Reforms" was launched in the year 2005-06 which was revamped, expanded and strengthened comprehensively in the year 2010. The scheme shall focus on key extensive reforms as detailed in the guidelines. There shall be a State Level Sanctioning Committee to be supported by the inter Departmental Working Group which is responsible for day-to-day coordination and management of the scheme activities within the State. The State Nodal Cell (SNC) is the authority to convey approval and monitor implementation of work plans by the State Agricultural Management & Extension Training Institutes (SAMETI) which will draw up and execute Annual Training Calendar for capacity building of the Extension Functionaries in the State. ATMA is an autonomous institution set up at district level to ensure delivery extension services to farmers. Each ATMA shall consist of (a) one Project Director; (b) two Deputy Project Director; (c) one Accountant cum clerk and (d) one Computer Operator. As per ATMA Guidelines, 2014, the method of appointment of the Project Director is either by way of deputation or secondment or appointment and the essential qualification prescribed therein is the postgraduate in Agriculture/ Allied Sector with 3 years experience in the scale of Rs.15600-39100+5400.
The contention of Shri B.P. Sahu, the learned Senior Advocate appearing for the petitioner is that the private respondent is not eligible for appointment as the Project Director (ATMA) on deputation and the petitioner being eligible for appointment on deputation as the Project Director (ATMA), was allowed vide order dated 20-06-2017 to hold the charge of it. It has further been submitted that when there is a conflict between the guidelines and the advertisement as regards the qualifications, the guidelines ought to prevail and the act of issuing the order dated 06-07-2017 thereby keeping the earlier order dated 20-06-2017 in abeyance and allowing the private respondent to function as the Project Director (ATMA), is bad in law being hit by the law laid down by the Hon''ble Supreme Court in State of Haryana Vs. Piara Singh, (1992) 4 SCC 118 wherein the Hon''ble Supreme Court has held that an ad-hoc or temporary employee should not be replaced by another ad-hoc or temporary employee. Combating this contention, Shri N. Kumarjit, the learned Advocate General has submitted that although the ruling in Piara Singh''s case will indubitably apply to the facts of the present case, it will be in favour of the private respondent and not in favour of the petitioner for the reason that the order dated 20-06-2017 which has been kept in abeyance vide the impugned order dated 06-07-2017, will amount to replacing an ad-hoc employee by another ad-hoc employee and in other words, since it will result in replacing the private respondent by the petitioner, the impugned order had to be issued by the State Government. Moreover, it has also been submitted that the said order 20-06-2017 was issued on an erroneous assumption that the post of the Project Director (ATMA) is lying vacant and that too, on a misrepresentation made by the petitioner in her application.
Before adverting to the rival contentions of the learned counsels appearing for the parties, this court deems it appropriate to deal with the preliminary objection raised by the counsel appearing for the private respondent as regards the maintainability of the writ petition. According to him, the writ petition is not maintainable for the reason that the petitioner has failed to come before this court with clean hands and in other words, she has suppressed material facts as to how the order dated 20-06-2017 came to be passed by the State Government. On perusal of the materials on record, his contention appears to be incorrect. It may be noted that the validity and correctness of the order dated 20-06-2017 is not the subject matter in issue in this writ petition and therefore, this court is not required to go into the background of issuing it. Non-disclosure of the said background by the petitioner cannot be said to be a suppression of material facts, on the basis of which the writ petition can be dismissed as not maintainable. But it could be one of the factors to be taken into account while deciding the issue involved herein, as regards the legality and correctness of the impugned order 06-07-2017. In view of the above, there is no need of referring to the decisions of the Hon''ble Supreme Court cited and relied upon by the learned counsel appearing for the private respondent in support of his contention.
It is true that the essential qualification prescribed in the guidelines, in respect of the post of the Project Director (ATMA), is the postgraduate in Agriculture/ Allied Sector with three years experience in the scale of Rs.15600-39100+5400 and that while issuing the said advertisement, certain changes have been made by the State Government except in respect of the educational qualification which remains unchanged. In other words, a desirable qualification has been added therein. But it may be noted that in response to the said advertisement, the petitioner applied for and was appointed as the Deputy Project Director (ATMA) on deputation. The petitioner appears to have not questioned the validity and correctness of the advertisement at that point of time because she became eligible for appointment as the Deputy Project Director (ATMA). When it comes to the issue relating to the appointment of the Project Director (ATMA), she has started raising a finger as regards the qualification notified in the advertisement because she is not eligible for appointment in terms thereof. In view of the well settled principle of law that one cannot play hot and cold at one time, the contention of the learned senior counsel appearing for the petitioner has no substance at all and cannot be countenanced by this court. As regards the application of the law laid down in Piara Singh''s case to the facts of the present case, the contention of the learned Advocate General appears to be correct for the reason that prior to the issuance of the said order dated 20-06-2017, an order dated 22-11-2016 had already been issued by the State Government whereby the private respondent was posted as the District Agricultural Officer/ the Project Director (ATMA) with effect from 01-01-2017. There is no material on record to show that the said order dated 22-11-2016 has been superseded by any subsequent order nor has it, in particular, been superseded by the order dated 20-06-2017 relied upon by the petitioner. Moreover, it is the specific stand of the State Government as indicated in its affidavit that the said order dated 20-06-2017 was issued without verifying the true facts on record and in other words, it has been issued by the State Government on the basis of the misrepresentation of the petitioner. In this regard, the contention of Shri Th. Khagemba, the learned counsel appearing for the private respondent that the order dated 22-11-2016 has not been challenged by the petitioner, is relevant and important. In the absence of the order dated 22-11-2016 being challenged by the petitioner, the principle laid down in Piara Singh''s case will apply in favour of the private respondent because the said order is still in operation and since the validity and correctness of the order dated 22-11-2016 is not being questioned in this writ petition, the same cannot be looked into by this court. Moreover, there is no conflict between the guidelines and the advertisement as regards the qualification prescribed for the post of the Project Officer (ATMA) and only a desirable qualification has been added in the advertisement, the correctness of which has not been challenged by the petitioner. Therefore, having heard the learned counsels appearing for the parties and perused the materials on record, this court is of the view that there is nothing wrong in the order dated 06-07-2017 which has been issued by the State Government to ensure that the law laid down in Piara Singh''s case is not violated by it and in other words, the said order dated 06-07-2017 has been issued so as to obviate the conflict that may arise between the orders dated 22-11-2016 and dated 20-06-2017 issued by the State Government.
In view of the above, the writ petition fails and is accordingly, dismissed with no order as to costs.