ZINGSUOKIM ZATE Vs. STATE OF MANIPUR

JUDGEMENT

(1.) In this writ petition the writ petitioner Smti. Zingsuokim Zate made a prayer for quashing the impugned order dated 19th January, 1999 appointing the respondent Nos. 3 and 4 to the post of Head Clerk and Accountant on promotion respectively as in Annexure-A/6 and A/7 to the writ petition under the respondents Department coupled with a prayer for a direction to the respondents to pay/release the arrear pay and allowances to the petitioner for the post of U.D.C. for the period from 1-12-1987 to 30-5-1992 with interest thereon by contending inter alia, that the petitioner is a member of Scheduled Tribe community of the State of Manipur; and that being the position, the petitioner is entitled for her appointment on promotion either to the post of Head Clerk or Accountant by virtue of the related Government Office Memorandum dated 1.1.1992 whereby it was stated that the Office Memorandum dated 29th April, 1975 and 25th April, 1989 issued by the Department of Personnel and Administrative Reforms and the Department of Personnel and Training, Government of India regarding reservation for Scheduled Tribe and Scheduled Caste in service and ban on dereservation in direct recruitment shall be adopted by the Government of Manipur with immediate effect but, the respondents/ authority concerned appointed the respondent Nos. 3 and 4 to the post(s) of Head Clerk and Accountant respectively though the petitioner is quite eligible for promotion either to the post of Head Clerk or to the post of Accountant as one of the said post falls under reservation quota of the Scheduled Tribe in pursuance of the 100 points roster and, as such, the action of the State-respondents concerned is not only violative of Article 315 of the Constitution but also violative of the directive principles of the State policy which though not enforceable in the court of law but not less important.

(2.) Mr. B. P. Sahu, learned counsel supporting the case of the petitioner argued that one Shri M. Nipamacha Singh who was serving as U.D.C. was appointed on promotion to the post of Head Clerk on temporary basis vide, office order No. 226 dated 17-4-1979 as in Annexure-A/11 to the rejoinder affidavit and similarly, another incumbent namely Shri N. Sarat Singh who was serving as U.D.C. was appointed on promotion to the post of Head Clerk on temporary basis vide, office order No. 118, dated 16-12-1985 as in Annexure-A/12 to the rejoinder affidavit and, the Chief Town Planner, Govt. of Manipur also appointed the respondent No. 3 on promotion to the post of Head Clerk under the impugned order dated 19-1-1999 and likewise, in the year 1981 one Shri N. Ibohanbi Singh was also given appointment to the post of Accountant vide, order dated 25th June, 1981 and subsequently, the respondent No. 4 was also given appointment on promotion under the impugned order of 19th January, 1999 as in Annexure-A/7 to the writ petition and, as such, there has been 3 (three) vacancies for the post of Head Clerk in the Department of Town Planning, Govt. of Manipur but no appointment in respect of Scheduled Tribes candidates has so far been made till date and likewise, so far there has been 2 (two) vacancies for the post of Accountant in the Department of Town Planning, Govt. of Manipur but no appointment in respect of Scheduled Tribes candidates has so far been made to the said post till date, which is violative of the 100 points roster formulated by the Government of Manipur and the provisions of law laid down under Article 16(4A) of the Constitution. It is also argued by the learned counsel for the petitioner that as per proceedings of the said DPC and subsequent recommendation, the respondent Nos. 3 and 4 have been given appointment on promotion to the posts of Head Clerk and Accountant which are not tenable in the eye of law and, as such, the same are liable to be quashed and review DPG deserved to be conveyed/held to enable the authority concerned to appoint suitable candidates in pursuance to the reservation policy.

(3.) The case of the petitioner is resisted by the State-respondents as well as by the private respondents by filing counter affidavit. Mr. Kh. Nimaichand Singh, learned Additional Govt. Advocate at the very outset submitted that the allegation and submission so far made by the writ petitioner is not correct and the same is misleading one inasmuch as the post of Head Clerk and Accountant are single posts under the Town Planning Department. Supporting this submission, the learned Additional Govt. Advocate has drawn my attention to paragraph 3 of the affidavit in opposition of the respondent Nos. 1 and 2 and submitted that there were no 3 (three) vacant posts of Head Clerk and/or 2(Two) posts of Accountant. The single lone post of Head Clerk and another single lone post of Accountant have different duties and separate recruitment rules as seen in the documents marks as Annexure-A/5 to the writ petition and Annexure-D/3 to the affidavit in opposition of the respondent Nos. 1 and 2 and that appointment in the single lone post, there shall be no question of reservation as the reservation is not applicable in the case of lone post and, apart from that, the DPC concerned had considered the case of the petitioner as well as the respondent Nos. 3 and 4 for appointment to the said 2(two) lone posts and the DPC after considering all the ACRs, seniority position and suitability, recommended the private respondent No. 3 for appointment to the post of Head Clerk and private respondent No. 4 for appointment to the post of Accountant and on the recommendation of the said DPC these 2 respondents 3 and 4 have been given appointment to the posts of Hoad Clerk and Accountant respectively under the impugned orders and, as such, there is no question of violation of 100 points roster adopted by the Government of Manipur and also the Article 16(4A) and Article 315 of the Constitution of India. It is also argued by the learned Additional Govt. Advocate that as the petitioner while working as L.D.C. during the period from 1-12-1987 to 30-5-1992, she enjoyed and she was paid the pay scale of L.D.C. and, as such, she is not entitled to get the arrear pay and allowances for the post of U.D.C. for the said period.