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WP(C) No. 879 of 2021

IN THE HIGH COURT OF MANIPUR

AT IMPHAL

WP(C) No. 879 of 2021

1. Serto Chungneilin Kom, aged about 28 years, S/O

Serto Lalsem Kom, resident of Thampilen Sagang,

P.O. Moirang, P.S. Kumbi, Churachandpur District,

Manipur, PIN: 795133.

2. Kongjengbam Chaoba Devi, aged about 56 years,

W/O Ch. Pradeep Singh, resident of Soibam Leikai,

Khanglabung Leirak, P.O. & P.S. Porompat, Imphal

East District, Manipur, PIN: 795001.

3. C. Lian Hanghal, aged about 53 years, S/O H.

Pauchinkhup, resident of Upper Chapellane,

Hiangtam Lamka, P.O. & P.S. Churchandpur,

Churchandpur District, Manipur, PIN : 795128.

4. Sougrakpam Saratchandra Singh, aged about 58

years, S/O S. Chaoba Singh, resident of

Nongmeibung Pung Makhong, P.O. & P.S.

Porompat, Imphal East District, Manipur : PIN :

795005.

… PETITIONERS

-VERSUS-

1. The State of Manipur through its

Commissioner/Secretary (MI), Government of Manipur,

having its office at Secretariat Babupara, P.O. & P.S.

Imphal, Imphal West Distrcit, Manipur, PIN : 795001.

SHAMURAILATPAM

SUSHIL SHARMA

Digitally signed by

SHAMURAILATPAM SUSHIL SHARMA

Date: 2023.09.12 12:22:09 +05'30'

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WP(C) No. 879 of 2021

2. The Commissioner/Secretary, Department of Personnel

& Reforms, Government of Manipur having its office at

Secretariat Building, Babupara, P.O. & P.S. Imphal,

Imphal West District, Manipur, PIN : 795001.

3. The Chief Engineer, Minor Irrigation Department,

Government of Manipur.

4. Manipur Public Service Commission through its

Secretary, having its Secretary, having its office at North

AOC, P.O. & P.S. Imphal, Imphal West District, Manipur

– 795001.

5. Maibam Premeshwor, aged about 31 years, S/o M.

Nandeshwor Singh of Kwakeithel Heinoukhongnembi,

P.O. Imphal & P.S. Lamphel, Imphal West District,

Manipur.

6. Athokpam Peliya, aged about 27 years, D/o Athokpam

Birendrajit Singh of Khongman Zone-4, Khongman,

Imphal East District, Manipur – 795008.

7. Moirangthem Simpa Singh, aged about 30 years, D/o M.

Nimai Singh of Wangkhei Akham Maning Leikai, Imphal,

Imphal East District, Manipur.

… RESPONDENTS

BEFORE

HON’BLE THE ACTING CHIEF JUSTICE M.V. MURALIDARAN

HON’BLE MR. JUSTICE A. GUNESHWAR SHARMA

For the Petitioner :: Mr. K. Roshan, Adv.

For the Respondents :: Mr. M. Hemchandra, Sr. Adv.

Mr. RS Reisang, Sr. Adv.

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WP(C) No. 879 of 2021

Mr. M. Rarry, Adv.

Date of Hearing and

reserving Judgment & Order :: 18.04.2023

Date of Judgment & Order :: 24.08.2023

JUDGMENT AND ORDER

(CAV)

(M.V. Muralidaran, ACJ)

This writ petition has been filed by the petitioners to

quash the impugned notification dated 27.10.2021 and to direct

the official respondents to relax the rules for promotion to the

Post of Assistant Engineer/Assistant Surveyor of Works

(Civil/Mechanical) in Minor Irrigation Department for relaxing the

eligibility years in Diploma holder for promotion under Diploma

holder sub quota.

2. The case of the petitioners is that they are the

diploma holders in Civil/Mechanical Engineering in the

Department of Minor Irrigation and they are going to be eligible

for promotion under the sub-quota of diploma holder in a short

period. The Recruitment Rules provide for eligibility of degree

holder for promotion to the post of Assistant Engineer in three

years service as Section Officer Grade-I and the diploma holder

in eight years service as Section Officer Grade-I. The authority

since 1975 provided for keeping the diploma holder quota in

promotion to the post of Assistant Engineer/Assistant Surveyor

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WP(C) No. 879 of 2021

of Works by giving equal opportunity to all the same cadre of

Section Officer Grade-I. However, the respondent authority on

27.10.2021 amended the Recruitment Rules for the post of

Assistant Engineer/Assistant Surveyor of Works in Minor

Irrigation Department by inserting as “provided that if sufficient

number of officers holding Degree/AMIE or Diploma holders or

its equivalent are not available for promotion, the remaining

vacancies in this sub-quota may be filled by persons possessing

Degree/AMIE or Diploma in Civil/Mech. Engineering with service

as specified in Column 11”, which is discrimination to the diploma

holders in Civil/Mechanical in their sub-quota promotion to the

post of Assistant Engineer/Assistant Surveyor of Works and the

same is arbitrary and mala fide and also violative of the principles

of natural justice. The said amendment is made in favour of the

degree holders who are appointed in the same year with the first

petitioner. Hence, the impugned proviso is liable to the set aside.

3. The respondents 1 and 3 filed affidavit-in-opposition

stating that there is no illegality in the impugned Recruitment

Rules dated 27.10.2021 and the same was notified for avoiding

any prejudice to the degree and diploma holders. In the

Recruitment Rules of 2014 and the impugned Recruitment Rules

of 2021 for the post of Assistant Engineer

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WP(C) No. 879 of 2021

(Civil/Mechanical)/Assistant Survey of Works in the Minor

Irrigation Department, the method of recruitment is 60% by

promotion and 40% by direct recruitment. Further, the 60%

promotion quota shall be filled up in sub-quota i.e. 50% by

selection from officers holding Degree/AMIE in Civil/Mech.

Engineering and 50% by selection from diploma holders in

Civil/Mech. Engineering who obtained diploma after doing a

minimum three years course. However, in the earlier

Recruitment Rules of 2014, there is no proviso under sub-quota

of 50% of holding Degree/AMIE in Civil/Mech. Engineering.

4. It is stated that in the earlier Recruitment Rules of

2014 and the present impugned Recruitment Rules of 2021 for

the post of Assistant Engineer (Civil/Mechanical)/Assistant

Surveyor of Works in the Minor Irrigation Department, under

Column 11 of MPSC Form-8, have the same criteria to be fulfilled

by the incumbent for getting promotion. The benefits stated in

Column 11 and Column 10 of the Recruitment Rules of 2014 are

meant only for the diploma holders which could not be enjoyed

by the decree holders and, as such, there is prejudice upon the

other group. In order to give equal privileges to both degree and

diploma holder, the process for amendment of Recruitment Rules

has been initiated and, after due process, the Department of

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P&AR notified the impugned Recruitment Rules by amending the

proviso of Column 10 of the previous Recruitment Rules.

5. The second respondent filed affidavit-in-opposition

stating that the Recruitment Rules for the post of Assistant

Engineer (Civil/Mechanical)/Assistant Surveyor of Works in the

Department of Minor Irrigation, Government of Manipur was

amended and notified a s “the Assistant Engineer

(Civil/Mechanical)/Assistant Surveyor of Works Recruitment

Rules, 2021” vide notification dated 27.10.2021 by the

Department of P&AR on the basis of the proposal received from

the Department of Minor Irrigation Department. The said

Recruitment Rules was forwarded to the Manipur Public Service

Commission (MPSC) for their concurrence and, vide letters dated

15.7.2020 and 17.8.2021, the MPSC has placed their

observations.

6. It is stated that under letter dated 6.10.2021, the

MPSC was intimated to reconsider the decision of the

Commission and to place the proposal for amendment of

Recruitment Rules for the post of Assistant Engineer.

Simultaneously, views regarding the observations of the MPSC

on the proposal for framing of a common Recruitment Rules for

the post of Assistant Engineer (Civil/Mechanical) in all the

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Engineering Departments was also called for. However, no reply

has been received till date. After which, the MPSC in reference

to the P&AR’s letter dated 6.10.2021 concurred with the

proposed amendment vide letter dated 21.10.2021 which was

finally notified vide notification dated 27.10.2021 by giving equal

right to degree and diploma holders on the basis of the

justifications as provided for by the Department of Minor

Irrigation, Government of Manipur.

7. Pending writ petition, the MPSC and the private

respondents were added as respondents 4 to 7.

8. Assailing the impugned amendment to the

proviso/notification dated 27.10.2021, Mr. K. Roshan, the

learned counsel for the petitioners submitted that the amended

Recruitment Rules is not giving equal privileges to both degree

and diploma holders meaning thereby that the eligibility from

diploma holder is eight years and degree holder is three years

regular service, which shows that all the degree holders who

joined their service with the diploma holders in the same

advertisement in the initial post of Section Officer Grade-I will be

promoted to the next higher post after three years and diploma

holder will be promoted to the next higher post after eight years.

Hence, the regular vacancy of diploma holder quota will be

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automatically filled up by the degree holders as none of the

diploma holders will be eligible by the time degree holders

become eligible for the post. Hence, the said amended

Recruitment Rules is discriminatory and against the interest of

the diploma holders who are also holding the same cadre in the

Engineering Department in the State of Manipur.

9. The learned counsel further submitted that the

feeder post of the Assistant Engineer/Assistant Surveyor of

Works is the Section Officer Grade-I. The post of Section Officer,

Grade-I eligibility qualification is BE/Diploma in Civil and

Mechanical from any recognized Institution. By virtue of the

eligibility, the MPSC conducted the combined examination for

recruitment to the post of Section Officer Grade-I from the eligible

candidates. The diploma holders and the degree holders were

selected to their respective post and they were appointed in the

same cadre and prepared the combined inter se seniority list in

the cadre of Section Officer Grade-I and there is no separate

seniority list for diploma and degree holders in all the Engineering

Departments in the State of Manipur in the post of Section Officer

Grade-I.

10. The learned counsel for the petitioners urged that

the authority cannot take away the sub-quota of diploma holder

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WP(C) No. 879 of 2021

posts by the degree holders and the same sub-quota was

prepared on the basis of their eligibility for promotion to the higher

post. The authority can insert the proviso only after giving equal

eligibility condition year to both diploma holders and degree

holders. However, in the impugned Recruitment Rules, 2021,

the same was not followed.

11. The learned counsel added that the petitioners are

discharging their duties as Assistant Engineers/Assistant Survey

of Works in the Minor Irrigation Department like a regular

Assistant Engineer/Assistant Survey of Works. Moreover, the

authority can fill the diploma holders to the post of Assistant

Engineer/Assistant Surveyor of Works in regular vacancy by

relaxing the rules which is provided in Rule 5 of the Recruitment

Rules dated 18.11.2014 in the sub-quota of diploma holder in the

cadre instead of amending the recruitment rules by giving benefit

to the degree holders.

12. The learned counsel for the petitioners contended

that 50% of degree holder quota can be filled up by the degree

holder, however, the diploma holders cannot fill up their quota of

50% because of different year of eligibility criteria prepared in the

Recruitment Rules. In order to streamline and to give equal

treatment to the degree holders and the diploma holders, the

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authority prepared the Recruitment Rules, 2014 to bring checks

and balances amongst the degree and diploma holders. But the

amended Recruitment Rules, 2021 is in favour of the degree

holders to promote them to the higher post by taking away the

diploma holders sub-quota from the promotion, which is arbitrary

and discriminatory. As the petitioners, who are diploma holders,

are now discharging their duties as Assistant Engineer/Assistant

Surveyor of Works (in-charge), the question of shortage of

eligibility does not arise. In support, the learned counsel for the

petitioners has relied upon the following decisions:

(1) Sant Ram Sharma v. State of Rajasthan

and others, 1967 AIR 1910.

(2) Union of India v. K.P.Joseph and others,

1973 AIR 303.

(3) Dhananjay Malik and others v. State of

Uttaranchal and others, Appeal (Civil)

No.1771 of 2008, decided on 05.03.2008.

13. Supporting the impugned amendment in the proviso

to the Recruitment Rules of 2021, Mr. M. Rarry, the learned

counsel, inter alia, submitted that the State, after obtaining

approval from the MPSC in a similar manner as done in the past,

has taken steps to amend Column 10 of the Recruitment Rules

and made a rule called “The Minor Irrigation Department,

Government of Manipur Assistant Engineer

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WP(C) No. 879 of 2021

(Civil/Mechanical)/Assistant Surveyor of Works Recruitment

Rules, 2021”. The Recruitment Rules 2021 has been issued in

supersession of all previous Rules, including the earlier

Recruitment Rules, 2014. It has been issued in exercise of the

powers conferred by the “proviso” to Article 309 of the

Constitution of India.

14. Mr. M. Rarry, learned Special State Counsel would

submit that the objection of the petitioners that the Recruitment

Rules, 2021 is a notification and not an amendment in the

Recruitment Rules already existing is false and such a stand of

the petitioners is totally misplaced and misconceived. In the

Recruitment Rules, 2021, the previous “proviso” found in

Recruitment Rules, 2009 and 2014 permitting the diploma

holders to fill up the remaining vacancies of 50% sub-quota

meant for degree holders has been removed. In Column 10, 60%

promotion quota is now sought to be filled up in sub-quota with

50% by degree holders and 50% by diploma holders provided

that the degree holder/diploma holder possess the eligibility or

qualifying years of service as provided in Column 11 of the same

Recruitment Rules, 2021. The above proviso only comes into

operation after giving both the degree holder and diploma holder

a full opportunity to get promoted to Assistant Engineer provided

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they are qualified and eligible in terms of Column 11 of the

Recruitment Rules, 2021. The said “proviso” is to be utilized by

both the degree holder as well as the diploma holder without any

discrimination.

15. According to Mr. M. Rarry, learned Special State

Counsel it is a level playing field for both without any

discrimination to either of the degree holder or the diploma

holder. The words “the remaining vacancies in this sub-quota”

refer to both the sub-quota of degree holder as well as diploma

holder and it amounts to doing away the question of sub-quota

between the degree holder and diploma holder, the moment it is

found that sufficient numbers of officers holding Degree/AMIE or

diploma holders or its equivalent are not available for promotion.

16. Mr. Rarry further submitted that the State authorities

have taken into consideration the interest of both degree holders

and diploma holders in terms of Column 10 of the Recruitment

Rules by continuing to maintain the 50% : 50% ratio within the

promotion quota of 60% for both degree holders and diploma

holders respectively provided that the percentage of sub-quota

was to be filled up by the respective degree holders or diploma

holders respectively after having become eligible for promotion

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by completing the qualifying years of service applicable to the

degree holders or diploma holders respectively.

17. Adding further, Mr. Rarry submitted that only after

exhausting the above said vacancies by filling up their respective

sub-quota by the degree holders or diploma holders respectively,

the remaining unfilled vacancies of either sub-quota were to be

filled up by using the said “proviso” by either of the degree

holders or diploma holders without any discrimination with equal

opportunity being made available to all or any of the eligible

degree holders or diploma holders to occupy and fill the unfiled

vacancies within any sub-quota, irrespective of that such unfilled

vacancies falls in the 50% sub-quota of the degree holder or

diploma holder. Hence, the “proviso” does not violate Articles 14

or 16 of the Constitution of India.

18. Mr. M. Hemchandra, the learned counsel for the

private respondents submitted that there is no illegality in the

impugned Recruitment Rules framed under Article 309 of the

Constitution of India and the same was notified without any

prejudice to degree and diploma holders. In the earlier

Recruitment Rules of 20214 and also in the present impugned

Recruitment Rules of 2021, for the post of Assistant Engineer

(Civil/Mechanical)/Assistant Surveyor of Works in the Minor

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Irrigation Department, the method of recruitment is 60% by

promotion and 40% by direct recruitment. Further, the 60%

promotion quota shall be filled up in sub-quota as 50% : 50%.

19. The learned counsel further submitted that in the

earlier Recruitment Rules of 2014, there is a proviso under sub-

quota of 50% of holding Degree/AMIE in Civil/Mechanical

Engineering. Only in order to give equal privileges to both

degree and diploma holders without any discrimination, the

process for amendment of Recruitment Rules has been initiated.

Accordingly, the Department of P&AR, after due process notified

the present impugned Recruitment Rules by amending the

proviso in Column 10 of the previous Recruitment Rules.

20. The leaned counsel submitted that the Department

is having 16 nos. of Section Officer Grade-I (Civil/Mech)

Engineers, out of which 4 nos. are diploma holders and 12 nos.

are degree holders. Out of the 15 nos. of sanctioned post of

AE/ASW/EA/Geohydrologist, 6 seats are reserved for direct

recruitment (filled) and the remaining 9 seats are for promotional

quota. Since all 9 seats for promotional quota lying vacant, the

department is facing acute shortage of Engineers (Civil/Mech). In

the aforesaid situation, the department intended to fill up the

seats for its smooth running. However, out of 16 nos. of Section

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WP(C) No. 879 of 2021

Officer Grade-I, 8 of them were found eligible fulfilling the

Recruitment Rules, namely (a) in case of degree holders, 3

years. Remaining 4 nos. of degree holders did not qualify the

same and remaining 4 nos. of diploma holders are also did not

qualify the Recruitment Rules; (b) in case of diploma holders, 8

years. Under the previous Recruitment Rules of 2014, 5 nos. of

eligible incumbents have been initiated for filling the vacant post

of Assistant Engineer in consultation with MPSC and had

completed the process and had given promotion to 5 incumbents.

21. The learned counsel then submitted that as per the

new amended Recruitment Rules framed, the private

respondents were found eligible for promotion to the post of

Assistant Engineer and the same had been proposed to

Government for consideration with due process of law.

Therefore, the question of collusion alleged in the writ petition

with the degree holders does not arise.

22. The learned counsel pointed out that the petitioners

are insisting for amending the Rules so as to get their benefit

before qualifying their service under Column 11 of the previous

Recruitment Rules, 2014 as well as the present Recruitment

Rules, 2021, which is not sustainable. Thus, a prayer has been

made to dismiss the writ petition.

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23. This Court considered the rival submissions and

also perused the materials available on record.

24. The amended “proviso” in Column 10 of the

Recruitment Rules, 2021 reads thus:

“Provided that if sufficient numbers of

Officers holding Degree/AMIE or Diploma

holders or its equivalent are not available for

promotion the remaining vacancies in this

sub-quota may be filled by persons

possessing Degree/AMIE or Diploma in

Civil/Mechanical Engineering which service

as specified in Column 11”.

25. According to the official respondents, the proviso

aforesaid only comes into operation after giving both the degree

holder and diploma holder a full opportunity to get promoted to

the post of Assistant Engineer, provided they are qualified and

eligible in terms of Column 11 of the Recruitment Rules, 2021.

26. The terms of Column 11 of the Recruitment Rules

is quoted hereunder for ready reference:

“PROMOTION:

S.O. Grade-I or post equivalent declared by

Govt. of Manipur in consultation with the

Commission as equivalent thereto with the

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following years of regular service in the

grade:

(a) In case of Degree holders, 3 (three)

years.

(b) In case of Diploma holders, 8 (eight)

years.

(c) In case of Diploma holders who pass both

Section A& B of AMIE Examination of

Institution of Engineers (India), 3 (three)

years regular service from the date of such

passing.

(d) In case of Diploma holders who possess

B.E./B.Tech while in service from a

recognized University, 3 (three) years regular

service from the dates of such passing.

(e) In case of officers who are not in

possession of Degree/AMIE or its equivalent

or Diploma, 15 (fifteen) years regular service

with outstanding records of service.”

27. The grievance of the petitioners is that the

impugned proviso has been inserted/amended in the

Recruitment Rules of 2021 making the diploma holder Section

Officer Grade-I, illegally lose their sub-quota contrary to the

already settled position of 60% quota of Assistant Engineer to be

filled up by promotion, which is further divided into two equal

portions of 50% each earmarked for Section Officer Grade-I who

joined service possessing Degree/AMIE in Civil/Mechanical

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Engineering and those who are diploma holders. Further, the

years of service as provided under Column 11 i.e. “in case of

diploma holders who possess BE/B.Tech. while in service from a

recognized University, 3 (three) years regular service from the

date of passing” makes no sense as the years of regular service

prescribed for diploma holder is eight years, whereas, in spite of

being a degree holder in Civil/Mechanical Engineering over and

above the diploma holder, a Section Officer Grade-I has to qualify

more than eight years of regular service, which is discriminatory

and arbitrary as others who joined the service at the same time

will qualify for promotion before the Section Officer Grade-I

(Diploma) who passed a degree in Engineering while in service.

28. The further grievance of the petitioners is that there

is no purpose sought to be achieved in classifying those diploma

holders who possess B.E./B.Tech while in service from a

recognized University and those who are diploma holders in

regard to years of regular service for the purpose of promotion,

inasmuch as the job profile of all is Section Officer Grade-I

irrespective of their educational qualification i.e. whether degree

holder or diploma holder. As such, the classification is arbitrary

and irrational.

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29. On the other hand, the respondent State contends

that Column 10 of the Recruitment Rule for the Assistant

Engineer (Civil/Mechanical) in the Department of Minor Irrigation

was amended vide the impugned notification by giving equal right

to degree and diploma holders on the basis of the justifications

as provided for by the Department.

30. Taking us through Column 10 of the Recruitment

Rules, 2014, the learned Government counsel submitted that the

proviso therein included is meant only for diploma holders, which

could not be enjoyed by the degree holders and, as such, there

is prejudice upon the another group. In such situation, the

process has been initiated by the Minor Irrigation Department for

amending the above proviso and, accordingly, notified the

impugned amended Recruitment Rules, 2021 vide notification

dated 27.10.2021.

31. It appears that in the earlier Recruitment Rules of

2014 and the impugned Recruitment Rules of 2021, for the post

of Assistant Engineer (Civil/Mechanical)/Assistant Surveyor of

Works in the Minor Irrigation Department, the method of

recruitment is 60% by promotion and 40% by direct recruitment.

The 60% promotion quota shall be filled up in sub-quota as

under:

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WP(C) No. 879 of 2021

(i) 50% by selection from officers holding

Degree/AMIE in Civil/Mechanical

Engineering or its equivalent from a

recognised University/Institute with

regular service as specified in Column

11.

(ii) 50% by selection from Diploma holders in

Civil/Mechanical Engineering who

obtained Diploma after doing a minimum

3 (three) years course from a recognized

Institution with service as specified in

Colum 11 and from officers who are not

in possession of a Degree or a Diploma

in Civil/Mechanical Engineering with

service and records as specified in

Column 11.”

32. It also appears that in the earlier Recruitment Rules

of 2014, there is a proviso under sub-quota of 50% of holding

Degree/AMIE in Civil/Mechanical Engineering as follows:

“Provided that if sufficient number of officers

holding Degree/AMIE or its equivalent are

not available for promotion, the remaining

vacancies in this sub-quota may be filled by

persons possessing Diploma in

Civil/Mechanical Engineering with service as

specified in Column 11.”

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WP(C) No. 879 of 2021

33. According to the official respondents, in order to

give equal privilege to both degree holder and the diploma holder

without any discrimination on both, the process for amendment

of the Recruitment Rules was initiated and, after due process,

notified the impugned Recruitment Rules by amending the

proviso of Column 10 of the previous Recruitment Rules of 2014.

The learned Government counsel also drew our attention to the

letter of the MPSC dated 17.8.2021 to contend that in the said

letter, the MPSC reiterated that there was a necessity to bring

consistency in the Recruitment Rules of Engineering Department

by reviewing the Recruitment Rules.

34. In the letter dated 17.8.2021, it has been stated as

under:

“I am directed to refer to Government’s letter

No.1/2/21-RRMI)/DP dated 05/08/2021 on

the above subject and to say that the (sic)

was matter considered by the Commission in

its meeting held on 10/08/2021 and it was

observed that the Administrative

Departments as well as the Department of

Personnel had not acted upon the decision of

the Commission dated 06/07/2020 to review

all Recruitment Rules of Engineering

Department from the level of Assistant

Engineer to Chief Engineer for all branches

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WP(C) No. 879 of 2021

in order to bring consistency in the

recruitment rules and to weed out irregular

clauses such as segregation of quotas for

Diploma & Degree holders for promotion to

Assistant Engineer. The resent proposal is

of piecemeal in nature.

2. Accordingly, the Commission has decided

to advise Department of Personnel to initiate

a process to frame a common RR for all

Engineering Departments for Assistant

Engineer of different branches.

3. The Commission also consider that it is

necessary to do away with bifurcation of the

promotion quota into separate quotas for

Degree holders and Diploma holders for

promotion to Assistant Engineer from

Section Officer Grade-I as having such

quotas will have issues in maintaining roster

registers for promotion posts of Assistant

Engineer over and above the lack of proper

justification for maintaining such separate

quotas.

4. It is therefore, requested for taking up

further necessary action from your end.”

35. Pursuant to the approval accorded by the MPSC,

the State had framed new Recruitment Rules, 2021 for regulating

the method of recruitment to the post of Assistant Engineer

(Civil/Mechanical)/ Assistant Surveyor of Works in the

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Department of Minor Irrigation. The Recruitment Rules, 2021

has been issued in supersession of all previous Rules, including

the Recruitment Rules of 2014. According to the official

respondents, the Recruitment Rules, 2021 is similar to the earlier

amendments made in respect of the Assistant Engineer in the

Minor Irrigation Department vide the Recruitment Rules of 1975,

1984, 2009 and 2014 when the petitioners herein or other

diploma holders were never aggrieved by the manner in which

the earlier Recruitment Rules were amended or made by the

State.

36. As could be seen from the relevant materials, it is

clear that the Recruitment Rules of 2021 has been made by the

Governor of Manipur in exercise of the power conferred by the

proviso to Article 309 of the Constitution of India in consultation

and proper approval from the MPSC. As stated supra, the

Recruitment Rules, 2021 was issued in supersession of all

previous Recruitment Rules. Though the petitioners contended

that the insertion of the proviso in question in the Recruitment

Rules, 2021 is discriminatory to the diploma holder, nothing has

been produced by them to prove the same. Further the

arguments of the learned counsel for the petitioners is that the

diploma holders will not be promoted to the higher post of

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Assistant Engineer/Assistant Surveyor Works in their sub-quota

till they retired from service by virtue of their eligibility criteria.

The aforesaid submission is also not supported by any materials.

37. It is pertinent to note that the previous Recruitment

Rules was in such condition that all the promotional seats can be

occupied by diploma holders, but the degree holders can never

occupy 50% selection seats of diploma holders. The degree

holder will have promotional avenue at the time only when the

seats occupied by the degree holders become vacant which in

some cases can again be occupied by the diploma holders if

sufficient degree holders are not available. The degree holders

may not have any chance of promotion even there are vacancies.

38. According to the learned Government counsel, the

amended proviso in question only comes into operation after

giving both the degree holders and diploma holders a full

opportunity to get promoted to Assistant Engineer provided they

are qualified and eligible in terms of Column 11 of the

Recruitment Rules, 2021. The said proviso is to be utilised by

both the degree holder and the diploma holder without any

discrimination. It is a level playing field for both without any

discrimination to either diploma holder or the degree holder. We

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find some force in the said contention made by the learned

Government counsel for the State.

39. The words “the remaining vacancies in this sub-

quota” refers to both the sub-quota of degree holder as well as

the diploma holder and it amounts to doing away the question of

sub-quota between the degree holder and diploma holder, the

moment it is found that sufficient numbers of Officers holding

Degree/AMIE or Diploma holders or its equivalent are not

available for promotion.

40. As stated supra, the proviso in question has been

inserted in terms of the advice and the approval given by the

MPSC. While inserting the proviso, the State has also taken note

of the interest of both the degree holders and the diploma holders

in terms of Column 10 of the Recruitment Rules by continuing to

maintain 50:50 ratio within the promotion quota of 60% for both

degree holders and diploma holders respectively and that the

percentage of sub-quota was to be filed up by the respective

degree holders or diploma holders respectively after having

become eligible for promotion by completing the qualifying years

of service applicable to degree holders or diploma holders. Only

after exhausting the above said vacancies by filing up their

respective sub-quota by the degree holders or diploma holders,

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the remaining unfilled vacancies of either sub-quota were to be

filled up by using the proviso in question by either of the degree

holders or diploma holders without any discrimination with equal

opportunity of being made available to all or of the eligible degree

or diploma holders to occupy and fill the unfiled vacancies fall in

the 50% sub-quota of the degree holder or diploma holder. In

view of the above, we are of the view that the amended proviso,

which is attacked by the petitioners in this writ petition does not

violate Articles 14 and 16 of the Constitution of India.

41. The petitioners cannot also claim that the proviso in

question is newly introduced one or they are not aware of the

policy decision taken by the State Government in respect of the

earlier filling up unfilled vacancies of sub-quota of the degree

holders by the diploma holders in the case of sufficient numbers

of eligible degree holders being not available to fill up all the post

or vacancies meant for degree holders within the sub-quota of

50% when the Recruitment Rules of 2009 and 2014 were in

vogue.

42. It is the submission of the learned counsel for the

petitioners that the authority can insert the proviso only after

giving equal eligibility condition year to both diploma holders and

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degree holders, but in the impugned Recruitment Rules of 2021,

the same was not followed. In regard to the eligibility for degree

holder is three years for eligibility to be promoted to the post of

Executive Engineer and if the degree holder is not available the

vacancy of degree holder quota will be filled up by the diploma

holder as the diploma holder’s eligibility to the post of Executive

Engineer is eight years. As such, there is no prejudice to the

degree holders.

43. In reply, the learned Government counsel submitted

that the petitioners cannot be allowed to blow hot and cold at the

same time and are bound by the principles of estoppels, waiver

and acquiescence as the diploma holders have already been

enjoying the said proviso without any murmur and protest when

such proviso was incorporated in the Recruitment Rules of 2009

and 2014 for the sole benefit of the diploma holders only.

Therefore, it is totally mala fide for the diploma holders to now

suddenly claim that the said proviso of Recruitment Rules, 2021

is discriminatory. The argument aforesaid merit consideration.

44. In the decision relied upon by the learned

Government counsel in State of Jammu & Kashmir v. Triloki Nath

Khosa and others, (1974) 1 SCC 19, the Constitution Bench of

the Apex Court held:

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WP(C) No. 879 of 2021

“35. ….. Therefore, it was open to the

Government to give preference to candidates

having higher educational qualifications. In

Ganga Ram v. Union of India, it was

observed that “the State which encounters

diverse problems arising from a variety of

circumstances is entitled to lay down

conditions of efficiency and other

qualifications for securing the best service for

being eligible for promotion in its different

departments”.

45. In the case of Triloki Nath Khosa, supra, the Apex

Court referred to the decision in the case of the Union of India v.

Dr. (Mrs.) S.B. Khohil, wherein it has been held thus:

“16. …… It is well-settled that though

employment under the Government like that

under any other master may have a

contractual origin, the Government servant

acquires a ‘status’ on appointment to his

office. As a result, his rights and obligations

are liable to be determined under statutory or

constitutional authority which, for its

exercise, requires no reciprocal consent. The

Government can alter the terms and

conditions of its employees unilaterally and

though in modern times consensus in

matters relating to public services is often

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WP(C) No. 879 of 2021

attempted to be achieved, consent is not a

pre-condition of the validity of rules of

service, the contractual origin of the service

notwithstanding.

…..

18. …… There is always a presumption in

favour of the constitutionality of an enactment

and the burden is upon him who attacks it to

show that there has been a clear

transgression of the constitutional principles.

A rule cannot be struck down as

discriminatory on any a priori reasoning.

That where a party seeks to impeach the

validity of a rule made by a competent

authority on the ground that the rules offend

Article 14 the burden is on him to plead and

prove the infirmity is too well established to

need elaboration. The burden thus is on the

parties to set out facts necessary to sustain

the plea of discrimination and to adduce

cogent and convincing evidence to prove

those facts for there is a presumption that

every factor which is relevant or material has

been taken into account in formulating the

classification. In G.D. Kelkar v. Chief

Controller of Imports and Exports, Subba

Rao, C.J., speaking for the Court has cited

three other decisions of the Court in support

of the proposition that ‘unless the

classification is unjust on the face of it, the

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WP(C) No. 879 of 2021

onus lies upon the party attacking the

classification to show by pleading the

necessary material before the Court that the

said classification is unreasonable and

violative of Article 16 of the Constitution’.”

…..

20. …… The challenge, at best, reflects the

respondent’s opinion on promotional

opportunities in public services and one may

assume that if the roles were reversed,

respondents would be interested in

implementing their point of view. But we

cannot sit in appeal over the legislative

judgment with a view to finding out whether

on a comparative evaluation of rival theories

touching the question of promotion; the

theory advocated by the respondents is not

to be preferred. Classification is primarily for

the legislature or for the statutory authority

charged with the duty of framing the terms

and conditions of service; and if, looked at

from the standpoint of the authority making it,

the classification is found to rest on a

reasonable basis, it has to be upheld.

21. …… Out reason for saying this is to

emphasize that the respondents ought to

have furnished particulars as to why,

according to them, the classification between

diploma-holders and degree-holders is not

based on a rational consideration having

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nexus with the object sought to be achieved.

In order to establish that the protection of the

equal opportunity clause has been denied to

them, it is not enough for the respondents to

say that they have been treated differently

from others, not even enough that a

differential treatment has been accorded to

them in comparison with others similarly

circumstanced. Discrimination is the essence

of classification and does not violence to the

constitutional guarantee of equality only if it

rests on an unreasonable basis. It was

therefore incumbent on the respondents to

plead and show that the classification of

Assistant Engineers into those who hold

diplomas and those who hold degrees is

unreasonable and bears no rational nexus

with its purported object.”

46. From the above law settled by the Apex Court, it is

clear that discrimination is the essence of classification and does

violence of the Constitutional guarantee of equality only if it rests

on an unreasonable basis.

47. It is settled law that policy decisions of the State are

not to be disturbed unless they are found to be grossly arbitrary

or irrational. The scope of judicial review of Government policy

is now well defined.

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48. In the case of Directorate of Film Festivals and

others v. Gaurav Ashwin Jain and others, reported in (2007) 4

SCC 737, the Apex Court held:

“16. The scope of judicial review of

Government policy is now well defined.

Courts do not and cannot act as appellate

authorities examining the correctness,

suitability and appropriateness of a policy nor

are Courts Advisors to the Executive on

matters of policy which the Executive is

entitled to formulate.”

49. In State of Punjab and others v. Ram Lubhaya

Bagga and others, (1998) 4 SCC 117, the Apex Court held:

“ … When Government forms its policy, it is

based on number of circumstances on facts,

law including constraints based on its

resources. It is also based on expert opinion.

It would be dangerous if Court is asked to test

the utility, beneficial effect of the policy or its

appraisal based on facts set out in affidavits.

The Court would dissuade itself from entering

into this realm which belongs to the

executive. It is within this matrix that it is to

be seen whether the new policy violates

Article 21 when it restricts reimbursement on

account of its financial constrains.”

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50. Similar was the pronouncement of the Apex Court

in the case of Ugar Sugar Works Limited v. Delhi Administration

and others, reported in (2001) 3 SCC 635, wherein, it has been

held as under:

“….. It is well settled that the Courts, in

exercise of their power of judicial review, do

not ordinarily interfere with the policy

decisions of the executive, unless the policy

can be faulted on grounds of mala fide,

unreasonableness, arbitrariness or

unfairness etc. Indeed, arbitrariness,

irrationality, perversity and mala fide will

render the unconstitutional.”

51. The scope of judicial review when examining a

policy of the Government is to check whether it violates the

fundamental rights of the citizens or is opposed to the provisions

of the Constitution, or opposed to any statutory provision or

manifestly arbitrary. Courts cannot interfere with policy either on

the ground that it is erroneous or on the ground that a better,

fairer or wisher alternative is available. Legality of the policy and

not the wisdom or soundness of the policy is the subject of

judicial review. The scope of judicial review in policy matters is

no longer res integra.

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52. In the light of the decisions supra, the policy of the

respondent State in bringing the present proviso in the

Recruitment Rules, 2021 cannot be faulted. As stated supra,

only to balance both the degree holders and diploma holders, the

present proviso was inserted in the Recruitment Rules, 2021, that

too, without prejudice to anybody. The said action of the

respondent authorities cannot be interfered with exercising

power of judicial review.

53. As rightly argued by the learned Government

counsel that the consequence arising out from the said Column

11 or its impact upon the proviso to the Recruitment Rules, 2021

cannot be a basis of challenge or otherwise to claim that the said

proviso to the Recruitment Rules, 2021 has now treated

unequals as equal. The fact remains that the degree holders and

the diploma holders are only classified on the basis of

educational qualification in Column 11. Therefore, there is no

question of treating them as equals as far as proviso to the

Recruitment Rules, 2021 is concerned. That apart, the sub-

quota of 50:50% for degree holders and diploma holders is still

maintained and this sub-quota is to be filled up by the respective

degree holders or diploma holders respectively. Therefore, as

per the law laid down by the Apex Court that the discrimination is

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the essence of classification, the unfilled vacancies of either sub-

quota by any of the degree holder or diploma holder as and when

they become eligible for promotion to Assistant Engineer cannot

be faulted with. As such, the discrimination is constitutionally

permissible against the diploma holders being based on

reasonable classification of educational qualification. The

diploma holders cannot now say that they have been

discriminated by the proviso to the Recruitment Rules, 2021, as

they have to complete eight years while the degree holders only

three years regular service to be qualified as eligible for

promotion to the Assistant Engineer.

54. The argument of the learned counsel for the

petitioners is that the Chief Engineer, Minor Irrigation

Department, with the collusion of the degree holders who are

appointed in the year 2016 submitted a proposal for filling up

three vacant posts of Assistant Engineers by promotion to the

Secretary (MI), Government of Manipur in terms of the amended

Recruitment Rules, 2021.

55. In view of our finding arrived at supra that the

proviso to the Recruitment Rules, 2021 cannot be faulted by the

petitioners, there is nothing wrong in addressing the letter by the

Chief Engineer to the Secretary (MI), Government of Manipur for

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filling up the three vacant posts. It is reiterated that the only

intention and basis for incorporating the proviso to the

Recruitment Rules, 2021 is to ensure that all unfilled vacancies

for the posts of the Assistant Engineers after promoting and

adjusting within their respective sub-quota, all the eligible Section

Officer Grade-I to the higher posts of Assistant Engineer are all

filled up and do not remain vacant for many years. That apart,

the proviso to the Recruitment Rules, 2021 was added for the

reason to allow either the diploma holder or degree holder to

occupy or fill up all available unfilled vacancies in either of the

sub-quota, as it was found necessary to fill the same immediately

to ensure a smooth administration of the Minor Irrigation

Department in public interest.

56. The learned counsel for the private respondents

contended that even under the Recruitment Rules of 2014, the

petitioners are yet to be eligible. Highlighting the eligibility years

of the petitioners for promotion to the post of Assistant Engineer,

the learned counsel for the private respondents submitted that

the petitioner Saratchandra Singh retired in March, 2023 from

service on attaining the age of superannuation. He would submit

that the private respondents are all eligible for consideration for

promotion to the post of Assistant Engineers as per the

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Recruitment Rules, 2021. According to the learned counsel, the

eligibility years of the private respondents is 2019.

57. Adding further, the learned counsel for the private

respondents submitted that the Department is having 16 nos. of

Section Officer Grade-I, out of which, 4 nos. are diploma holders

and 12 nos. are degree holders. Further, out of 15 nos. of

sanctioned post of AE/ASW/EA/Geohydrologist, 6 seats are

reserved for direct recruitment. It is stated that all 6 seats are

filled. The remaining 9 seats are for promotional quota. Since all

9 seats for promotional quota was lying vacant, the Department

is facing acute shortage of Engineers (Civil/Mechanical). In such

a situation, the Department intends to fill up the seats for its

smooth running. Going ahead one step further, the learned

counsel for the private respondents submitted that out of 16 nos.

of Section Officer Grade-I, 8 of them were found eligible fulfilling

the Recruitment Rules, namely (a) in case of degree holders,

three years. Remaining 4 nos. of degree holders did not qualify

the same and the rest 4 nos. of diploma holders also did not

qualify the Recruitment Rules and (b) in case of diploma holders,

8 years. Under the previous Recruitment Rules of 2014, 5 nos.

of eligible incumbents have been considered for filing the vacant

post of Assistant Engineer in consultation with the MPSC and the

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process was completed and accordingly promotion was given to

the said five incumbents.

58. It is an admitted position that the Department is

facing acute shortage of Assistant Engineers (Civil/Mechanical).

It was considered with utmost importance to give promotion to

the eligible candidates irrespective of both degree holders and

diploma holders without prejudice to anybody. In the said

situation only, the proposal was made for amendment in the

Recruitment Rules for filling up sub-quota of both diploma and

decree holders if sufficient numbers of either degree or diploma

holders are not available for promotion. In view of the factual

scenario, the action of the official respondents cannot be

questioned and/or faulted by the petitioners now.

59. The respondent State contended that they have

kept in consideration the interest of both the degree holders and

diploma holders in terms of Column 10 of the Recruitment Rules,

2021 by continuing to maintain the 50:50% ratio within the

promotion quota of 60% for both degree holders and diploma

holders respectively provided that the percentage of sub-quota

was to be filled up by the respective degree holders or diploma

holders respectively after having become eligible for promotion

by competing the qualifying years of service applicable to the

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degree holders or diploma holders respectively. Only after

exhausting the above said vacancies by filling up their respective

sub-quota by the degree holders or diploma holders respectively,

the remaining unfilled vacancies of either sub-quota was to be

filled up by using the present proviso by either of the degree

holders or diploma holders, without any discrimination with equal

opportunity being made available to all or any of the eligible

degree holders or diploma holders to occupy and fill the unfilled

vacancies within any sub-quota irrespective that such unfilled

vacancies falls in the 50% sub-quota of the degree holder or

diploma holder. In view of the balancing approach adopted by

the respondent authorities, it cannot be said that the present

proviso is discriminating the diploma holders for promotion under

sub-quota of diploma holders. As stated supra, the proviso to the

Recruitment Rules of 2021 does not violate the principles of

natural justice and also not violative of Articles 14 and 16 of the

Constitution of India.

60. For the foregoing discussions, we are of the view

that the petitioners have no grievance at all and there is no

illegality, arbitrariness, biasness, discrimination and violation of

relevant Rules and procedures in issuing the impugned

notification dated 27.10.2021. The writ petition fails.

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61. In the result,

(i) The writ petition is dismissed.

(ii) There will be no order as to costs.

(iii) This Court, by the interim order dated

02.12.2021, directed the respondents not

to make any promotions on the strength of

the impugned amended Rule dated

27.10.2021. Since the writ petition is

dismissed, the interim order dated

02.12.2021 shall stand vacated.

JUDGE ACTING CHIEF JUSTICE

FR/NFR

Sushil