MANGSATABAM IMOMACHA SINGH Vs. STATE OF MANIPUR

JUDGEMENT

(1.) This is a classic instance in which the State-respondents are, apparently, playing cat and mouse game with the orders of this Court with a view to frustrate and circumvent thereof. This forensic battle started with the order dated 21st February, 2012, under challenge in this writ petition, by which the private respondent, who is holding a substantive post of Superi-ntending Engineer, was made to hold the charge of Chief Engineer in the Public Health Engineering Department of Government of Manipur when there is the petitioner, who is holding the substantive post of Additional Chief Engineer in the same Department and who is the OSD to the Principal Secretary (PHE) in the Secretariat PHE by drawing the pay of Additional Chief Engineer. When this Court by the order dated 29.2.2012 and 15.3.2012 stayed the operation of the impugned order, in apparent retaliation, the State-respondents issued another order dated 11.5.2012 transferring the petitioner in a non-cadre post of Secretary (Technical), PHED. Holding the view, such transfer to a non-cadre post amounts to deputation, which cannot be done without the consent of the petitioner, this Court by the order dated 23.5.2012 stayed the impugned order dated 11.5.2012 for a limited period, but it has been extended from time to time till date. Some contempt petitions have also been filed by the petitioner against some official respondents for not complying with the interim orders of this Court. Anyway, we are presently concerned with the legality of the impugned order directing the private respondent to hold the charge of Chief Engineer at the expense of the petitioner.

(2.) Unfolding his submissions, Mr. A. Romenkumar, the learned counsel for the petitioner, argues that the impugned order is contrary to the well-settled principle of service jurisprudence that the senior-most should be made incharge of promotional post till the post is regularly filled up. He further contends that the impugned order is issued not in public interest as is evidenced by the conspicuous absence of the term "public interest" therein. Referring to the standing order dated 20.6.2009 of the State-respondents, he also submits that consistent with the past practice and declared to be so by this order of allowing the Addl. Chief Engineer, PHED to hold the charge of Chief Engineer, PHED in the absence of Chief Engineer either on leave or on training or on tour, the petitioner held the legitimate expectation that he should be allowed to hold the charge of Chief Engineer, more so, when he is the senior-most engineer in the Department: such legitimate expectation cannot be defeated except for overwhelming public interest, which, as already noted, is nonexistent in the instant case. A number of decisions have been cited by him to buttress his contention. Suffice it to refer to the decisions of the Apex Court in (1) Dr. Suman Agarwal Vs. Vice-Chancellor, (1996) 1 SCC 632; (2) Govt. of A.P. Vs. A. V. Venugopal, (1995) 1 SCC 179 and (3) Ramdhar Pandey Vs. State of U.P., 1993 Supp (3) SCC 35 and (4) Gwalior Mahila Mandal Vs. State of M.P., AIR 2009 SC 1638; (5) Union of India Vs. Arulmozhi Iniarasu, (2011) 7 SCC 397 and the decisions of this Court in (1) Satya Charan Biswas Vs. State of Assam, 2004 (Suppl.) GLT 808:(2005) 3 GLR 275; (2) Potsangbam Super Singh Vs. State of Manipur, 2009 (3) GLT 635; (3) Wahengbam Uttarani Devi Vs. State of Manipur, 2009 (1) GLT 331 and (4) Moatemjan (Dr.) Vs. State of Nagaland, 2011 (5) GLT 513.

(3.) The impugned order is defended by Mr.S.Napoleon, the learned Additional Government Advocate appearing for the State-respondents with considerable force. He brings to the notice of this Court at the time of hearing the order dated 7.8.2012 issued by the State-respondents cancelling the impugned order and contends that in view of this subsequent development, this writ petition does no longer survive for consideration and is liable to be dismissed as infructuous. The submission of the learned State counsel is supported by Mr. H.S.Paonam, the learned counsel for the private respondent, who additionally maintains that allowing this writ petition will come into conflict with WP(C) No.274 of 2012, which is not yet ready for hearing and where this Court had stayed the order dated 11.5.2012 appointing the petitioner as the Secretary (Technical), PHED. According to the learned senior counsel, when the validity of this order is yet to be decided by this Court, it is premature to finally decide this case and this Court should defer the hearing of this case and wait for consolidated hearing of the two writ petitions to avoid any possible conflict between the judgments of this Court. He also contends that this Court may not issue a direction to the respondent authorities to consider the petitioner for holding the charge of Chief Engineer as that would amount to usurping the legitimate function of the State-respondents. He, therefore, prays that the writ petition, which is bereft of merit and has also become infructuous in view of the subsequent development, is liable to be dismissed.