{"id":124062,"date":"2006-05-05T00:00:00","date_gmt":"2006-05-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-birendra-singh-vs-l-priyokumar-singh-ors-on-5-may-2006"},"modified":"2018-12-08T10:47:48","modified_gmt":"2018-12-08T05:17:48","slug":"n-birendra-singh-vs-l-priyokumar-singh-ors-on-5-may-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-birendra-singh-vs-l-priyokumar-singh-ors-on-5-may-2006","title":{"rendered":"N. Birendra Singh vs L. Priyokumar Singh & Ors on 5 May, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
N. Birendra Singh vs L. Priyokumar Singh & Ors on 5 May, 2006<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, P.P. Naolekar<\/div>\n
           CASE NO.:\nAppeal (civil)  2126-2127 of 2001\n\nPETITIONER:\nN. BIRENDRA SINGH\n\nRESPONDENT:\nL. PRIYOKUMAR SINGH & ORS\n\nDATE OF JUDGMENT: 05\/05\/2006\n\nBENCH:\nS.B. Sinha & P.P. Naolekar\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
WITH
\nCivil Appeal Nos.2133, 2132, 2128-2131 and 8510-8513 of 2001<\/p>\n
S.B. SINHA, J :\n<\/p>\n
These appeals involving common questions of law and
\nfact were taken up for hearing together and are being
\ndisposed of by this common judgment.\n<\/p>\n
The case has a chequered history.  We would,
\nhowever, note the factual matrix of the matter, from
\nC.A.Nos.2126-2127 of 2001.  The appellant was appointed
\nas a Section Officer, Grade-I (Elect.).  He was promoted to
\nthe post of Assistant Engineer (Elect.) on an ad-hoc basis on
\n5.2.1980.  By a Government order dated 30th September,
\n1985, on recommendations of Departmental Promotion
\nCommittee (DPC), the appellant was appointed as an
\nAssistant Engineer on officiating basis w.e.f. 15.7.1085.  The
\nState, in supercession of the said order, promoted him as an
\nofficiating Assistant Engineer (Elect.) on a SC\/ST reserved
\nseat.  A tentative seniority list was published in the year
\n1991 wherein his name was not included, presumably on
\nthe basis that his services had not been regularised.   His
\nservices were, however, regularised w.e.f. 29.8.1992, but
\nno retrospective effect thereto was given, whereupon he
\nfiled a writ petition before the Gauhati High Court.  A
\nlearned Single Judge of the said court by an order dated
\n27.11.1992 directed the State Government to regularise his
\nad-hoc and\/or officiating service w.e.f. 5.2.1980.  The said
\ndirection was complied with by the State by issuing
\nGovernment order dated 3.2.1993, in terms whereof the
\nservices of the Appellant were regularised with retrospective
\neffect, i.e., w.e.f. 5.2.1980. It stands admitted that the said
\norder dated 27.11.1992 was passed following a Division
\nBench decision of the said court dated 23.3.1992 passed in
\nC.R.No.586\/91 in the matter of one Kh. Ningthemjao Singh,
\nwho is also an appellant before us, wherein directions were
\nissued in the following terms:\n<\/p>\n
” Considering the submission made
\nby the learned counsel for petitioner as
\nwell as the learned Govt. Advocate and
\nafter going through the judgment of
\nthe Division Bench of this Court passed
\nin civil Rule No.586\/91, I dispose of the
\npetition with the direction to regularise
\nthe petitioner’s services with effect
\nfrom the date of his initial adhoc
\nappointment i.e. 5.2.1980.  The
\nseniority of the petitioner shall be
\ndetermined in accordance with the
\nrules and in the absence of such rules
\nas per Govt. instructions and in the
\nlight of the judgments of the Apex
\nCourt as well as of this Court.”\n<\/p>\n
He thereafter filed a representation for determination
\nof his seniority.  As the question of seniority was pending
\nbefore the High Court at the instance of some other officers,
\nthe appellant herein also filed a Writ Petition claiming similar
\nreliefs which was marked as C.R.No.226\/93.\n<\/p>\n
A tentative Seniority List was published on 30.6.1994
\nwherein he was shown at Serial No.7.  He filed a
\nrepresentation claiming that his seniority be reckoned from
\nthe date of his regularisation.  A final Seniority List was
\npublished on 6.5.1995 wherein his position was shown as
\nSerial No.49.  According to the appellant, his name should
\nhave appeared at Serial No.13 of the seniority list.  A writ
\npetition was again filed by him praying for quashing of the
\nfinal Seniority List and for determining his seniority from the
\ndate of regularisation, which was marked as C.R.No.308\/95.
\nSeveral interim orders were passed therein.  The said
\ninterim orders came to be vacated by an order dated
\n4.10.1996, but it was made clear that any promotion to the
\npost of Executive Engineer (Elect.) made during pendency of
\nthe said writ petition shall be only on officiating basis and
\nsubject to the results of the three writ petitions pending
\nbefore the High Court thence.  The State thereafter
\npromoted 15 Assistant Engineers to the post of Executive
\nEngineer on ad-hoc basis which appointments were later on
\ndirected to be on officiating basis.\n<\/p>\n
By a judgment and order dated 16.5.1997, the learned
\nSingle Judge allowed four Writ Petitions being
\nC.R.Nos.308\/95 and 916\/95 filed by the appellant, N.
\nBiirendra Singh, C.R.No.929\/95 filed by Kh. Manglemtomba
\nSingh, C.R.No.345\/95 filed by Kh. Ningthemjao Singh and
\nC.R.No.320\/90 filed by the Association, whereby the said
\nfinal Seniority List dated 6.5.1995  was quashed and the
\nState was directed to determine the question of seniority
\nfrom the date of regularisation of the petitioners therein in
\nthe post of Assistant Engineers stating:\n<\/p>\n
“.I am, therefore, of the view that
\nthe seniority list is required to be
\nprepared afresh counting the seniority
\nof the petitioners from the date of
\nregularisation of their services in the
\npost of Asst. Engineers.  Consequently,
\nthe final seniority list Annexed-A\/12 of
\nC.R. 345\/95 is required to be
\ncancelled.  Accordingly, the final
\nseniority list of the Asst. Engineers
\npublished by the Govt. on 6.5.1995
\nAnnexure-A\/12 is hereby quashed.\n<\/p>\n
Govt. is directed to prepare a fresh
\nseniority list of the Asst. Engineers
\ncounting the services of the petitioners
\nfrom the date of their regularisation in
\nthe post of A.E.  The State Govt. is,
\nfurther, directed to work out the
\nvacancies for the post of Asst.\n<\/p>\n
Engineers in the Electricity Department
\nand thereafter absorb the petitioners in
\nthe vacant posts available under
\npromotion quota and count their
\nseniority from that date.  The year in
\nwhich vacancy under promotion quota
\nis available, the petitioners should be
\nabsorbed in those years and seniority
\nwill count from that date.”\n<\/p>\n
Writ appeals thereagainst were filed by the State as
\nalso by the affected employees.\n<\/p>\n
A Division Bench of the High Court while admitting the
\nsaid Writ Appeals passed an order of status quo.  However,
\nduring pendency of the said Writ Appeals the services of the
\n15 Executive Engineers, who were appointed on officiating
\nbasis, were regularised.  The Division Bench of the High
\nCourt, however, while upholding the judgment and order
\npassed by the learned Single Judge and dismissing the
\nappeals, in paragraph 21, directed that:\n<\/p>\n
“21. Though we have dismissed the
\nappeal, yet it is made clear that things
\nlike further promotion etc. already
\nmade in accordance with R.R. on the
\nbasis of that seniority list quashed shall
\nnot be reopened.  Promotions if made
\non adhoc basis, at the time of
\nregularisation of such promotions the
\ncases of the persons who come ahead
\nof such promotees after refixation of
\nseniority shall also be considered if
\nthey come within the zone of
\nconsideration being otherwise eligible.
\nAdhoc promotions on the basis of
\nseniority list quashed shall not be
\nregularised without refixation of
\nseniority.  This judgment shall not be
\nused as a handle by the writ petitioners
\nfor another round of litigation to claim
\nfurther benefit etc. on the principle of
\n“next below rule”.  Things shall be
\nallowed to rest as if on this count.  We
\nare constrained to give this direction as
\nthe learned Single Judge almost
\nopened a Pandora’s box giving
\ndirection to fix seniority from 1979-80
\nwhich will make the situation topsy
\nturvy.  That is not the function of the
\nwrit Court.  A writ court must not
\nbehave like a horned bull in a china
\nclay shop.  The seniority shall be
\nrefixed by the authority within 6
\nmonths from the date of the judgment
\nby adhering to Rules and directions of
\nthis court by inviting objections from
\nall who will be affected by such
\nredetermination.  The writ court being
\na court of equity at the time of
\nmoulding the relief can put the parties
\nto terms to make it just, proper and
\nworkable.  Justice does not turn up
\nbottom side up.  We must bear in mind
\nthat our justice delivery system is a
\nhuman institution, created by human
\nagents to serve human ends and in
\ndoing so always we must strike a
\nbalance in such a manner that our
\ndecision should not usually be an
\nattempt to touch a hornet’s nest to
\ncreate further complications and
\nproblems that should be avoided as far
\nas possible.”\n<\/p>\n
\tCivil Appeal Nos.2126-2127\/2001 has been filed by N.
\nBirendra Singh, Civil Appeal No.2132\/2001 has been filed by
\nKh. Ningthemjao Singh and Civil Appeal No.2133\/2001 has
\nbeen filed by Kh. Manglemtomba Singh questioning that
\npart of the judgment. Civil Appeal Nos. 2128-2131\/2001 has
\nbeen filed by the State of Manipur against the judgment of
\nthe Division Bench dismissing the said appeals.  One L.
\nPriyokumar Singh, who, however, had already been
\npromoted as Executive Engineer and who had filed a writ
\npetition questioning the inter-se seniority of the employees
\nappointed, has also filed an appeal separately which is
\nmarked as Civil Appeal Nos.8510-8513 of 2001.\n<\/p>\n
\tThe short question raised in these appeals by the
\nlearned counsel appearing on behalf of the appellants is that
\nthe Division Bench having dismissed the appeals by a
\njudgment and order dated 4.1.2000 preferred from the
\njudgment and order dated 16.5.1997 passed by the learned
\nSingle Judge could not have issued the afore-mentioned
\ndirections.\n<\/p>\n
\tMs. S. Janani, learned counsel appearing on behalf of
\nthe State of Manipur and Mr. S.K. Bhattacharya, learned
\ncounsel appearing on behalf of private respondents, on the
\nother hand, would draw our attention to two orders dated
\n20th August, 1990 and 4th January, 2000 passed by the
\nDivision Bench of the said Court and submitted that
\nalthough, the Division Bench, while allowing the writ
\npetitions filed by the Assistant Engineers praying for their
\nregularisation with retrospective effect directed that they be
\ngiven appropriate seniority, on that basis, however, on an
\napplication for modification having been filed before the said
\ncourt, directed that:\n<\/p>\n
“So far as the service benefits as
\nenumerated in general terms in the
\noperative portion of the order as
\nreproduced above, it shall not include
\nconferring benefit of seniority inter-se
\nseniority of the Asstt. Engineers is
\ngoverned by rules.  While the other
\nmonetary and post retirement benefits,
\nremain unaffected the word “seniority”
\nappearing in the operative portion of
\nthe order is deleted, which shall be
\ngoverned and determined in
\naccordance with the existing rules
\ntaking into consideration the case of
\nothers as well.”\n<\/p>\n
An application has been filed for bringing additional
\nfacts and documents on record on behalf of respondent
\nNos.3, 6, 7, 8 and 10, wherein an order dated 27.2.1998
\npassed in Writ Appeal No.154\/97 and other connected
\nappeals, while setting aside the orders of the learned Single
\nJudge dated 18.3.1997 and 21.5.1997, it was directed to fill
\nup 20 vacant posts on regular basis stating:\n<\/p>\n
“It has been submitted by Mr. A.\n<\/p>\n
Nilamani Singh that as of now, there are
\nabout 20 vacancies in the grade of
\nExecutive Engineer, Electricity to be
\nfilled up on regular basis.  If that is so,
\nthe respondents are now directed to fill
\nup those posts on regular basis within a
\nperiod of 2 (two) months from the date
\nof receipt of this order.  Submission has
\nalso been made by Mr. B.I. Sharma that
\nhis client Shri B. Sisirkumar Sharma
\nwould be retiring sometime in the month
\nof August, 1998.  This would also be a
\nground why the respondent should not
\nfill up the posts on regular basis
\nexpeditiously.”\n<\/p>\n
    The learned counsel appearing on behalf of the
\nrespondents contended that the cases of the appellants Kh.
\nNingthemjao Singh and Kh. Manglemtomba Singh had been
\nconsidered by the departmental promotion committee as
\nthey fell within the zone even without taking into
\nconsideration the date of regularisation with retrospective
\neffect, but they have not been found suitable therefor.
\nLearned counsel appearing on behalf of the State, however,
\npointed out that the appellant N. Birendra Singh had been
\ngiven all the benefits due to him and the State would
\nfurthermore give him all the monetary benefits treating him
\nto have been regularised in the post of Assistant Engineer
\nw.e.f. 5.2.1980.  It was pointed out that as the minimum
\nqualification required for promotion to the post of
\nSuperintending Engineer is Degree in Bachelor of
\nEngineering, both, N. Birendra Singh and Kh.
\nManglemtomba Singh, being only diploma-holders, cannot
\nbe considered for promotion to the post of Superintending
\nEngineer.\n<\/p>\n
It is not in dispute that the post of Executive Engineer
\nis a selection post.\n<\/p>\n
We, however, may not go into the question of
\ncorrectness or otherwise of the opinion of DPC held in 1998
\nfinding the appellant K. Ningthemjao Singh and Kh.
\nManglemtomba Singh unsuitable for promotion to the post
\nof Executive Engineer, as the writ petitions are pending
\nbefore the Guwahati High Court in relation thereto.  It has
\nfurther been brought to our notice that some of the
\nappellants have already been promoted to the post of
\nSuperintending Engineer.  L. Priyokumar has been promoted
\nas Superintending Engineer on 2.9.1995, whereas Ng. Sarat
\nSingh has been promoted on 10.2.2006.  T. Raghumani
\nSingh, however, has not been promoted.  Kh. Ningthemjao
\nSingh is said to have retired from service.\n<\/p>\n
The grievances of the appellants appear to be that
\nalthough they were eligible for being promoted to the post
\nof Assistant Engineer on regular basis in October, 1976,
\ntheir cases have been ignored.  Further more, despite their
\nregularisation, the State had failed to take into account the
\nperiod between the date on which they were appointed on
\nad-hoc basis and regular basis for the purpose of reckoning
\ntheir seniority.\n<\/p>\n
Before adverting to the other contentions raised in
\nthese appeals, we must, at the outset, observe that the
\nDivision Bench of the High Court committed a manifest error
\nin making observations as against the learned Single Judge
\nas contained in paragraph 21 of the impugned judgment.
\nWe have noticed hereinbefore that the judgment and order
\npassed by the learned Single Judge was found to be correct
\nby the Division Bench.  The appeals preferred by the State
\nand the other respondents herein were dismissed.  If the
\njudgment and order passed by the learned Single Judge was
\ncorrect, in our opinion, there was no occasion for the
\nDivision Bench to issue certain directions in terms whereof
\nthe appellants herein were deprived of the benefit of the
\njudgment and order of the learned Single Judge indirectly,
\nwhich could not have been done directly.  If the Division
\nBench was of the opinion that in passing his order the
\nlearned Single Judge has not taken into consideration
\ncertain aspects of the matter and, in particular, some orders
\nwhich were relevant for determination of the issue, the
\nDivision Bench could have said so and dealt with the same
\nappropriately.  It did not.\n<\/p>\n
It is a trite law that what cannot be done directly,
\ncannot be done indirectly.  The Division Bench, in making
\nobservations and issuing directions in paragraph 21 of the
\nimpugned judgment, sought to do the same, which was
\nimpermissible in law.  If the Division Bench was of the
\nopinion that the learned Single Judge has committed
\nmistakes in issuing the directions, it could interfere
\ntherewith by assigning appropriate and cogent reasons
\ntherefor.  The observations made and directions issued by
\nthe Division Bench do not contain any reason as to how and
\nin what manner the learned Single Judge went wrong in
\npassing his judgment.\n<\/p>\n
The order dated 25th November, 1994 passed by a
\nDivision Bench of the said Court in C.M.A.No.352\/93,
\nappears to have been passed on an application for
\nmodification of an order dated 20th August, 1990 passed by
\nanother Division Bench of the said Court in
\nC.R.No.819\/88\/322\/88\/90.  We are not aware as to what
\nwas those writ petitions about.  However, we would proceed
\non the premise that the said order had direct bearing with
\nthe order of the learned Single Judge dated 27.11.1992
\npassed in favour of the appellants.  That Division Bench in
\nits order dated 20th August, 1990, held:\n<\/p>\n
“Mr. Pramod Singh, learned Govt.\n<\/p>\n
Advocate has an apprehension that, if
\nno post was available, regularisation
\nmay create problem.  We see no force in
\nthe above submission inasmuch as, by
\ngiving retrospective effect to the order
\nof regularisation, the petitioner shall be
\nentitled to the benefit of counting the
\nentire period of service for pay, i.e.
\nincrement, seniority, pension and other
\npensionary benefit.”\n<\/p>\n
\tThe application for modification was filed by the
\nemployees who were not parties to the said proceeding.
\nSome of the said applicants appear to be appellants before
\nus.  By reason of the said order, a modification was directed
\nto be made only to the effect that the seniority of the
\nconcerned Assistant Engineers, in terms of order of
\nregularisation, shall be considered in terms of the Rules and
\nnot in terms of the order passed by the Division Bench.  We
\nfail to appreciate the difference between the two inasmuch
\nas the apprehension expressed by some of the Assistant
\nEngineers that the services of the writ petitioners were
\ndirected to be regularised with retrospective date, i.e., on
\nthe date when they were appointed on ad-hoc basis, they
\nwould have a march over the other employees, was wholly
\nmisconceived.   When the earlier Division Bench spoke of
\nseniority amongst the Assistant Engineers, not only the
\nsame was required to be determined in terms of the rules,
\nthere was no question of the writ petitioners gaining a
\nmarch over the other employees similarly situated or who
\nwere otherwise senior to them.  Even otherwise, the learned
\nSingle Judge in his order dated 27.11.1992 exactly did so
\nstating that<\/p>\n
 “..the seniority of the petitioner shall
\nbe determined in accordance with the
\nrules and in the absence of such rules as
\nper Government instructions and in the
\nlight of the judgments of the Apex Court
\nas well as of this Court.”\n<\/p>\n
What was, therefore, directed to be obeyed was the
\nlaw operating in the field.\n<\/p>\n
By reason thereof, the Division Bench and
\nconsequently, the learned Single Judge never meant that
\ndespite the fact that the appellants were held to be entitled
\nto the benefit of regularisation in service with effect from
\nthe date on which they were appointed on an ad-hoc basis,
\nthe concerned respondent herein would be deprived of their
\nseniority to which they were otherwise entitled to in law.\n<\/p>\n
Interlocutory Application Nos.9 and 10 of 2005 filed on
\nbehalf of respondent Nos.3, 6, 7, 8 and 10 have not been
\nmoved and no order has been passed thereupon.  We, at
\nthis stage, cannot rely on the contents of the said
\napplications.  The contentions of the said applications do not
\nappear to have been brought on record before the High
\nCourt. The question which arose for consideration therein
\nappear to be confined to fixation of pay and allowances in
\nterms of Fundamental and Supplementary Rules.  It was
\nheld that they had been holding substantive post of
\nAssistant Engineer and they were on current charge of
\nExecutive Engineer and as such, they were not entitled to
\nthe pay and allowances to the post of the Executive
\nEngineer in terms of F.R. 49.  If some observations have
\nbeen made therein having regard to the submissions made
\nby a counsel for a party, the same would not mean that the
\nright of those who were not parties thereto, would be
\naffected thereby.  Reliance placed on the judgment and
\norder dated 20.8.90 is, thus, not tenable.\n<\/p>\n
We appreciate the anxiety on the part of the State that
\nif the entire seniority list is directed to be reopened, it may
\ngive rise to many more litigations.  It must think itself
\ntherefor.  But it is the State alone who is responsible for
\nsuch a situation.  The appellants herein have been pursuing
\ntheir remedies under the law.  They had been granted relief
\nas orders were passed in their favour.  The said order,
\nadmittedly, attained finality, and thus, cannot be reopened.
\nIt is, thus, too late in the day for the State now to urge that
\nthe promotions granted to some of the appellants herein in
\nthe post of Assistant Engineer (Elect.) were not in
\naccordance with law.  Such a contention is barred under the
\nprinciple of res judicata.\n<\/p>\n
We are, therefore, of the opinion that having regard to
\nits own conduct, the State of Manipur now cannot be heard
\nto say that this Court should uphold the impugned judgment
\nof the Division Bench, although, in law the same is
\nimpermissible.  We decline to do so.  We, therefore, while
\nsetting aside the observations and directions issued by the
\nDivision Bench in paragraph 21 of the impugned judgment,
\nplace on record the concession made by the learned counsel
\nappearing on behalf of the State that the appellant, N.
\nBirendra Singh, would be given all monetary benefits w.e.f.
\n5.2.1980.  We do not find any merit in the appeal preferred
\nby the State.  As the learned Single Judge has directed the
\nState to implement its own order, the legal consequences of
\nthe said order must ensue and if by reason thereof the
\nconcerned appellants had derived certain benefits, there is
\nno reason for us to deprive them therefrom only because
\nthe State may feel some difficulty otherwise.\n<\/p>\n
In the result, Civil Appeal Nos.2128-2131 of 2001
\npreferred by the State are dismissed and other connected
\nappeals filed by the appellants herein are allowed.   The writ
\nappeals are disposed of with the aforementioned
\nobservations and directions.\n<\/p>\n
Having regard to the fact that some of the writ
\npetitions questioning the order of promotion and seniority
\nare pending consideration before the High Court, we would
\nrequest the High Court to consider the desirability of
\ndisposing of the matters as expeditiously as possible.\n<\/p>\n
In the facts and circumstances of the case, the parties
\nshall bear their own costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India N. Birendra Singh vs L. Priyokumar Singh & Ors on 5 May, 2006 Author: S.B. Sinha Bench: S.B. Sinha, P.P. Naolekar CASE NO.: Appeal (civil) 2126-2127 of 2001 PETITIONER: N. BIRENDRA SINGH RESPONDENT: L. PRIYOKUMAR SINGH & ORS DATE OF JUDGMENT: 05\/05\/2006 BENCH: S.B. Sinha & P.P. Naolekar JUDGMENT: J U […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-124062","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nN. Birendra Singh vs L. 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