Non-reportable
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C)No.540 of 2022
With
MC(WP(C))No.207 of 2023
1. Akoijam Bobby Singh, aged about 49 years old,
S/O A.K.Shyamkishore Singh, a permanent
Resident of Wangkhei Koijam Leikai, PO Imphal
PS Porompat, Imphal East District,
Manipur, Imphal 795001.
2. Leimapokpam Bimol Singh, aged about 46 years old,
S/o L.Mangi Singh, a permanent resident of
Athokpam Mayai Leikai, PO & PS Thoubal,
Thoubal District, Manipur, Thoubal 795138.
3. Khomdram Anupama Devi, aged about 44 years old,
W/O (Late) Kh.Suresh Singh, a permanent resident
Of Kwakeithel Bazar, Opposite Kwakeithel Girls
High School, PO & PS Imphal West District,
Manipur, Imphal 795001.
4. Thoujam Bandana Devi, aged about 44 years old,
W/O M.Okendro Singh, a permanent resident of
Heirangoithong Makha Mutum Leirak, PO & PS
Singjamei, Imphal West District, Manipur,
Imphal 795008.
5. Khangembam Mohen, aged about 48 years old,
S/o (Late) Kh.Gouri, a permanent resident of
Khurkhul Awang Leikai, PO & PS Sekmai,
Imphal West District, Manipur, Imphal 795136.
6. Meitankeishangbam Jamuna Devi, aged about
47 years old, W/O Ng.Romson Singh, a
Permanent resident of Chingmeirong Mamang
Leikai, PO Porompat & PS Lamphel, Imphal East
District, Manipur Imphal 795005.
WP(C) NO. 540 OF 2022 1
7. Rajkumari Bhubaneshwori Devi, aged about
53 years old, w/o Thingom Mangi Singh, a
Permanent resident of Sagolband Tera Sapam
Leirak, PO & PS Lamphel, Imphal West
District, Manipur, Imphal 795004.
8. Lamneichong Haokip, aged about 51 years old,
W/O Sheikhohao Kipgen, a permanent resident
Of National Games Village, Langol, PO & PS
Lamphel, Imphal West District, Manipur,
Imphal 795004.
9. Hangzamoi Tonsing, aged about 49 years old,
s/o T.Thongzathang, a permanent resident of
Docras Road, Docras Veng, New Lamka, PO
& PS Churachandpur, Churachandpur District,
Manipur, Churachandpur 795128.
10. Rakhi Golmei, aged about 44 years old, W/o
Dhanakumar P, a permanent resident of Uripok
Tourangbam Leikai, PO & PS Imphal, Imphal
West District, Manipur, Imphal 795001.
… Petitioners
-Versus-
1. The State of Manipur represented by the
Commissioner (Law) Government of Manipur,
Secretariat Block, PO & PS Imphal,
Imphal West District, Manipur 795001.
2. The Manipur Public Service Commission
Represented by the Secretary, Manipur Public
Service Commission, North AOC, PO & PS
Imphal, Imphal West District, Manipur 795001.
3. Shri Asem Neelakumar Singh, aged about 48 years
Old, s/o Asem Nimai Singh, resident of Pishum
Bazar, PO Imphal & PS Singjamei, Imphal West
District, Manipur 795001.
Respondents
…
WP(C) NO. 540 OF 2022 2
BEFORE
A.GUNESHWAR SHARMA
HON’BLE MR. JUSTICE
For the Petitioners :: Mr.H.S.Paonam, Sr.Advocate,
Mr.S.Gunabanta, Advocate,
For the Respondents:: Mr.Y.Nirmolchand, Sr.Advocate,
Mr.L.Raju, Advocate,
Mr.S.Niranjan, Government Advocate &
Ms.O.Momota, Sr. Advocate.
Date of hearing :: 20.06.2024/17.12.2024
Date of order :: 27.12.2024
O R D E R (CAV)
[1] Heard Mr.H.S.Paonam, learned senior counsel assisted by
Mr.S.Gunabanta, learned counsel for the petitioners, Mr.Y.Nirmolchand,
learned Sr. Counsel assisted by Mr.L.Raju, Mr.S.Niranjan, learned
Government Advocate, Ms.Momota, learned counsel for the respondents.
[2] By the present writ petition, petitioners are challenging the
order dated 8.7.2022, interalia, on the ground that the same is done
against the order dated 1.6.2022 passed in WP(C) No.2 of 2019 with
WP(C) No.896 of 2018 and others.
[3] It is stated that filling up the post of Additional Public
Prosecutor by promotion under the relevant Recruitment Rules has been
a matter of concern since 2018 where the present petitioners who have
been functioning as Regular Assistant Public Prosecutor since 2016 have
claimed that they are eligible for promotion to the post of Additional Public
Prosecutor, however, State Government has been denying the claim of
the petitioners.
[4] It is further stated that while the State Authorities are
making effort to appoint Addl PP by direct recruitment, the petitioners
along with others have approached this Court by filing WP(C) No.896 of
WP(C) NO. 540 OF 2022 3
2018 challenging the process for appointment and this Court was pleased
to pass interim order directing the State respondents not to fill up the post
of Addl PP by way of direct recruitment and the said order is extended
from time to time.
[5] It is stated that the State respondents have notified for
appointing Special Public Prosecutor by adjusting the post of Addl PP
thereby denying the right of the petitioners to be considered for promotion
to the post of Addl PP. Being aggrieved by such action the petitioners
have challenged the Notification dated 28.12.2019 by way filing WP(C)
No.5 of 2020 and this Court was pleased to pass interim order directing
the State respondents that the appointment of Special Public Prosecutor
by direct recruitment shall not be made against the vacant post of Addl.
P.P.
[6] Further, it is stated that despite existence of the interim
order dated 6.1.2020 passed in WP(C) No.5 of 2020, the State
respondents have issued the order dated 16.12.2020 allowing the private
respondent to function as Addl PP on extension of contract service.
Thereafter, the petitioner No.1 have filed Contempt Case (C) No.119 of
2021 for violation of the order dated 6.1.2020 passed in WP(C) No.5 of
2020.
[7] It is stated that vide order dated 01.06.2022 passed by this
Court in batch of writ petitions being WP(C) Nos. 2/2019, 896/2018,
5/2020 and 895 of 2021 (filed by one Asstt PP namely Ch.Thoibisana
Devi), the same were disposed of all the writ petitions pertaining to the
promotions of the petitioners and others including seniority issues and it
was made clear that the promotional post to the post of Addl. PP (District)
-cum- Addl Government Advocate (District) in the office of Public
Prosecutor (District) should not be filled up by way of any other method
except in terms of the directions passed by this Court. It was also directed
that any promotion to the post of Addl. Public Prosecutor-cum Addl.
WP(C) NO. 540 OF 2022 4
Government Advocate (District) should be made in accordance with the
prevailing Recrutiment Rules when the vacancies would arise.
[8] It stated that there is a Rule called Law Department,
Manipur Public Prosecutor (District)/ Additional Public Prosecutor-cum-
Additional Government Advocate Recruitment Rules, 1982, wherein at
Column 10 it is clearly stated that the Method of Recruitment is only by
way of Promotion filing which by direct recruitment, which would govern
for recruitment/promotion of Assistant Public Prosecutor to Additional
Public Prosecutor.
[9] It may be noted that State Government issued a Notification
dated 18.12.2019 publishing Additional Public Prosecutor-cum-Additional
Government Advocate (District) Recruitment Rules, 2019 in exercise of
power under Article 309 of the Constitution in supersession of all previous
rules in this regard. The qualification prescribed for the post is LLB degree,
with minimum 7 years of practice and included in the panel of advocates
maintained by the District Magistrate for appointment of Public Prosecutor
under Section 24 of CrPC. The method of recruitment is by promotion
from the post of Assistant Government Advocate-cum-Assistant Public
Prosecutor (District) with 5 years of regular service in the grade, failing
which by direct recruitment.
[10] It is the case of the petitioners who are Asst.GA-cum-Asst.
PP (D) that the post of Addl. PP-cum-Addl. GA (D) is a promotional post
from the post of the Asst.GA-cum-Asst. PP (D). If none is available for
promotion, appointment by direct recruitment is a second option. This
condition has been upheld by a decision of this Court in order dated
01.06.2022 in WP(C) No. 2 of 2019 and connected matters. In other
words, appointment by direct recruitment cannot be resorted at the first
instance without examining the promotional avenue. The appointment by
direct recruitment can be made under the failing clause, only when eligible
persons are not available amongst Asst.GA-cum-Asst. PP (D).
WP(C) NO. 540 OF 2022 5
[11] In the present writ petition, the challenge of regularising the
contractual service of the private respondent No.3 to the post of Addl. PP-
cum-Addl. GA (D) is on the limited ground that such a post cannot be
filled up by direct recruitment at the first instance. It is pointed out that
such an endeavour is in violation of the RR and the order dated
01.06.2022 in WP(C) No. 2 of 2019 and connected matters. The
petitioners are not questioning the qualifications of the private respondent
No.3 for appointment as Spl. PP (D).
[12] This aspect was discussed during the course of hearing
conducted on 16.04.2024. Mr. HS Paonam, learned senior counsel
appearing on behalf of the petitioners limited the challenge to the
regularisation of the private respondent to the post of Addl. PP-cum-Addl.
GA (D) as contrary to RR and earlier order dated 01.06.2022. However,
the petitioners did not have any grievance if the respondent No.3 would
be regularised as Spl. PP. This Court observed that if the regularisation of
the respondent No.3 would be made as Spl. PP as done in the case of Shri
M. Raichand, the issue could be resolved without affecting the rights of
the parties. In the circumstances, learned GA was directed to take
instruction in this regard.
[13] In pursuance to the direction of this Court in order dated
16.04.2024, Deputy Secretary (Law), Govt. of Manipur filed an additional
affidavit dated 04.06.2024 stating that since the respondent No.3 was
regularised in the newly created post of Addl. PP-cum-Addl. GA (D) vide
orders dated 08.07.2024, it will not be possible to regularise him to the
post of Spl. PP.
[14] In the circumstances, the matter was heard on this limited
point. It is an admitted fact that the respondent No.3 was initially engaged
as Spl. PP (D) on contract basis along with few other incumbents. Later
on, he was again engaged as Addl. PP-cum-Addl. GA (D) on contract basis
and posted at various courts. Subsequently, he was regularised as Addl.
WP(C) NO. 540 OF 2022 6
PP-cum-Addl. GA (D) vide impugned order dated 08.07.2022 against the
newly created post by another order dated 08.07.2022.
[15] It is an admitted fact that RR prescribes the post of Addl.
PP-cum-Addl. GA (D) as promotional post from the post of Asst. GA-cum-
Asst PP (D), failing which by way of direct recruitment. This stipulates that
promotion is the first option and in case of non-availability of eligible
candidates, resort can be made by direct recruitment by virtue of failing
clause. Whenever eligible candidates are available for promotion,
appointment by direct recruitment cannot be undertaken. This position
has also been settled by the direction of this Court in the order dated
01.06.2022 in WP(C) No. 2 of 2019, etc. On the other hand, the
respondent No.3 is eligible for appointment as Spl. PP like Shri M.
Raichand who was appointed in the same impugned order dated
08.07.2022.
[16] This Court is at lost to understand the rigid stand of the
State respondents refusing to adjust the regularisation of Shri A.
Neelakumar Singh (respondent No.3 herein) as Spl. PP as proposed by
this Court vide order dated 16.04.2024 on the mutual suggestions of the
parties. Otherwise, the regularisation of the respondent No.3 as Addl. PP-
cum-Addl. GA (D) will not be able to sustain in view of the stipulation in
the RR and confirmation by this Court that the said post is promotional
post for the Asst. GA-cum-Asst. PP (D) at the first instance. Since the
petitioners who are Asst. GA-cum-Asst. PP (D) are eligible for promotion,
the regularisation of the respondent No.3 as Addl. PP-cum-Addl. GA (D)
will amount to resorting to direct recruit when eligible persons are
available for promotion.
[17] In the peculiar facts and circumstances of the present case,
this Court does not incline to quash the regularisation of the respondent
No.3 as Addl. PP-cum-Addl. GA (D). Accordingly, this Court modified the
regularisation of the respondent No.3 to the post of Addl. PP-cum-Addl.
WP(C) NO. 540 OF 2022 7
GA (D) as that to the post of Spl. PP wef 18.10.2022. If post of Spl. PP is
not available on the relevant date, State respondents may create
supernumerary post of Spl. PP. With this direction and observation, the
writ petition is disposed of. Interim orders merge with final order and
misc. applications, if any, are disposed of.
JUDGE
FR/NFR
Priyojit
RAJKUMAR Digitally signed by
RAJKUMAR
PRIYOJIT
PRIYOJIT SINGH
Date: 2024.12.27
SINGH
13:54:04 +05'30'
WP(C) NO. 540 OF 2022 8