ABDUL KALAM Vs. STATE OF MANIPUR

JUDGEMENT

(1.) In the factual context of these two writ appeals, this Court had been asked to decide two important questions of public importance, viz.: 1. Whether or not the State Government (Governor of Manipur), while making the Recruitment Rules for a Gazetted post in the service of the Government of Manipur by exercising the power under Article 309 of the Constitution of India, is not at all required to consult the Constitutional Body, i.e. Manipur Public Service Commission, constituted under Article 320 of the Constitution of India even if consultation with the Public Service Commission is not required under the "Manipur Public Service Commission (Exemption from Consultation) Regulations 1972" framed by the Governor of Manipur in exercise of the powers conferred by proviso to Clause (3) of the Article 320 of the Constitution of India ? 2.. Whether or not this Court, while exercising its writ jurisdiction under Article 226 of the Constitution of India, has no power of judicial review to pronounce upon the validity of the Rules so framed and action taken by the State Government in exercise of the power under Article 309 of the Constitution of India?

(2.) As stated above, these two writ appeals involve common questions of law and fact and, accordingly, being disposed of by a common judgment and order. For convenience of this Court, for the purpose of factual matrix, writ appeal No. 180/99 had been discussed and referred to for passing the common judgment & order. A brief resume of fact leading to the filing of writ appeal No. 180/ 99 is required to be discussed :

(3.) The appellant, Md. Abdul Kalam (appellant in both the writ appeal Nos. 180/99 and 194/99) is a Post Graduate Degree holder in History and was initially appointed as Record Attendant under the Directorate of Social Welfare, Art & Culture (Art & Cul- ture Wing) vide order of the Director, Social Welfare, Arts & Culture, Manipur being No. 3/3/86-SE, Imphal, 30.9.1986. At the relevant time, Manipur State Archive was under the common Directorate of Social Welfare, Arts & Culture, Manipur. Under the Social Welfare, Arts & Culture, Manipur (Archivist of the Manipur State Archive), Recruitment Rules, 1983 framed by the State Government under Article 309 of the Constitution of India, method of recruitment to the post of Archivist was by direct recruitment, failing which by deputation. As such, according to the then Recruitment Rules, 1983 there was no avenue for filling up the post of Archivist by promotion from the lower post in the Directorate of Arts & Culture, Govt. of Manipur. The Director of Arts & Culture, Govt. of Manipur felt that the said Recruitment Rules for Archivist, 1983 was required to be modified in conformity with the existing Recruitment Rules for the post of Archivist of the National Archives of India. Accordingly, the Director wrote a letter being No. 6/2/82- SE (Pt), Imphal 18.1.1995 to the Under Secretary (Art & Culture), Govt. of Manipur that the then Recruitment Rules for Archivist, 1983 was required to be modified in conformity/with the existing Recruitment Rules for the post of Archivist of National Archives of India and other States as well, to fit with the expansion and development of Manipur State Archives. The said letter of the Director of Art & Culture, dated 18.1.1995 was also accompanied with the Recruitment Rules for the post of Archivist for the other States i.e. Karnataka etc. and job chart of the Archivist. In reply to the said letter of the Director of Art & Culture, Manipur dated 18.1.1995, the Under Secretary (Art & Culture), Govt. of Manipur under his letter dated 23.5.1995 requested the Director, Art & Culture, Manipur to furnish proposal in the prescribed Manipur Public Service Commission Form No. 8 and 10 for further consideration at an early date. In compliance with the direction of the Govt. of Manipur under the said letter of the Under Secretary, (Art & Culture), Govt. of Manipur, the Director, Arts & Culture, Manipur under Ms letter dated 13.6.1995 had furnished the proposed Recruitment Rules for the post of Archivist in the Manipur Public Service Commission Form No. 8 along with the job chart to the Government of Manipur. The Under Secretary (Art & Culture), Govt. of Manipur under his letter dated 26.6.1995 requested the Director (Art & Culture), Govt. of Manipur to furnish the informations, i.e. (1) pay scale of Assistant Micro Photographist and Record Attendant along with copies of the existing Recruitment Rules and (2) whether the post of Assistant Archivist was in existence in the Department. The said informations required by the Government under the said letter of the Under Secretary (Art & Culture), Govt of Manipur dated 26.6.1995 had been furnished by the Director (Art & Culture), Govt. of Manipur, under his letter dated 2.8.1996 to the Under Secretary (Art & Culture), Govt. of Manipur and in the said letter of the Director (Art & Culture), Govt. of Manipur, it was clearly stated that the post of Assistant Archivist which was created and filled up on regular basis had been upgraded to the post of Archivist vide Govt. order No. 44/85-SE (Pt-II) dated 16.11.1993. The Govt. of Manipur after getting all the necessary information mentioned above, the con- cerned department, i.e. Department of Personnel & Administrative Reforms (Personnel Division), Govt. of Manipur had discussed the same and also the respective job charts for the posts of Assistant Micro Photographist and Record Attendant, and the department of Personnel, Government of Manipur was of the opinion that the post of Assistant Micro Photographist, on seeing its job chart, may not be kept as the feeder to Archivist. Accordingly, under the letter of the Under Secretary (DP), Govt. of Manipur dated 30.12.1996 requested the Secretary (Art & Culture,) Govt of Manipur to re-examine in the light of the opinion of the DP, that Record Attendant having five years experience may be considered for promotion to the post of Archivist and the post of Assistant Micro Photographist may not be kept as the feeder to the post of Archivist. The Directorate of Art & Culture, Govt. of Manipur after thorough discussion of the said suggestion, made by the Department of Personnel, Government of Manipur under their letter dated 30.12.1996 as well as the Recruitment Rules for the post of Archivist for the other States, had requested the Deputy Secretary (Art & Culture), Govt. of Manipur that "regarding the proposal for amendment of Recruitment Rules for the post of Archivist, we propose, to provide the promotional avenue for the post of record Attendant, since the post of Preservation Assistant and Assistant Micro Photographist are not feeder post to Arcihivist as per the Recruitment Rules of the said post of other States. And that the Deputy Secretary (Art & Culture), Govt. of Manipur unh der his letter dated 11.9.1997 had clearly requested the Under Secretary (DP), Govt. of Manipur that the post of Preservation Assistant, Asstt. Micro Photographist in the feeder channel for promotion to the post of Archivist be excluded".