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1993 DIGILAW 196 (GAU)

Chingakham Bishwarjit Singh; Rajkumar Kabiraj Singh v. State of Manipur

1993-08-12

S.K.HOMCHAUDHURI

body1993
Common point having involved in both the petitions, the petitions are disposed of by this common judgment and order. 2. Petitioner in Civil Rule No. 738 of 1993, Shri Ch. Bishwarjit Singh came to be appointed as LDC on substitute basis by the order dated 3rd December, 1991 passed by the Commissioner (Education), Govt. of Manipur for a period of 6 months or till the post would be filled up on regular basis whichever was earlier. After appointment, the petitioner was posted to work in the Govt. Hindi Teachers' Training College. By subsequent orders passed by the respondent No. 2, the Director of Education (S), Govt. of Manipur, the petitioner's appointment on substitute basis was extended from time to time. By order dated October, 1992 (Annexure A/4 to the petition) passed by the respondent No. 2, substitute/ad hoc/officiating appointment of 76 LDC including the petitioner and one Stenographer Grade III, were extended upto the end of October, 1992. By order dated 72nd December, 1992, passed by the respondent No. 2, substitute/ad hoc/officiating appointment of 74 LDC including the petitioner was extended upto the e d of December, 1992. Again by the order dated 22nd February 1995, passed by the respondent No. 2 the term of substitute appointment of the petitioner and 20 others, Grade III Grade and IV employees were extended upto 31st March, 1993. 3. In Civil Rule No. 764 of 1993, the petitioner Shri Rajkumar Kabiraj Singh came to be appointed as Section Officer by order dated 5th February, 1991 passed by the respondent No. 2, the Director of Horticulture and Soil Conservation, Govt. of Manipur on ad hoc basis for a period of 6 months or till the post would be filled up by regular appointment, whichever was earlier. By subsequent order dated 31st August, 1991 respondent No. 2 exten­ded the appointment of the petitioner for a further period of 6 months. There­after by order dated 20th October, 1992 passed by the respondent No. 2, the term of ad hoc/officiating/substitute appointment of the 45 incumbent including the petitioner were extended for the period shown against their names by way of giving 2 days gap period between the term of initial ad hoc appointment and the period to be extended, under the conditions that no further extension would be entertained thereafter. Again by order dated 2nd February, 1993 passed by the respondent No. 2 the terra of ad hoc appoint­ment of 39 number of Grade III and Grade IV staff, including the petitioner were extended upto 31 3.93. No further extension appears to have been made thereafter. 4. Prayer in both the writ petitions is for issue of writ or direction commanding the respondents to regularise the appointments of the writ petitioners. The petitioners have placed reliance on the order of the Hon'ble Supreme Court passed in the case of All Manipur Regular Posts Vacancies Substitute Teachers' Association vs. State of Manipur, reported in AIR 1991 SC 2088 . The petitioners hive als3 placed reliance on order dated 22.11.90 passed by this Court in Civil Rule No. 646 of 1990 as well as the judgment and order dated 16.9.91 parsed in Civil Rule No. 200 of 1991 & others, falling in line with the order of the Hon'ble Supreme Court rendered in All Manipur Regular Posts Vacancies Substitute Teachers Association (supra). 5. I have heard Mr. K. Bipinchandra Sarma, learned counsel for the petitioner in Civil Rule No. 738 of 1^93, Mr, Kh. Binoykumar Singh learned counsel for the petitioner in Civil Rule No. 764 of 1993 and learned Advocate General. Manipur assisted by Mr, A. Jagatchandra Singh, learned Additional Govt. Advocate. 6. Admittedly both the petitioners were appointed on ad hoc basis without being selected by the DPC and as such the claim of the petitioners for regularisation of their services is not well founded. Hon'ble Supreme Court in the case of Director, Institute of Management Development, Ut Smti Pushpa Srivastava, reported in AIR 1992 SC 2070 amongst other held : "Where the appointment is purely on ad hoc basis and is contractual and by efflux of time, the appointment comes to an end, the person holding such post can have no right to continue in the post. This is so even if the person is continued from time to time on 'ad hoc' basis for more than a year. He can not claim regulansition in service on basis that he was appointed on ad hoc basis for more than an year". This is so even if the person is continued from time to time on 'ad hoc' basis for more than a year. He can not claim regulansition in service on basis that he was appointed on ad hoc basis for more than an year". In the case of All Manipur Regular Posts Vacancies Substitute Teachers Association (supra), the Hon'ble Supreme Court with a view to resolving the vexed problem of regularisation of services of ad hoc/substituted appointed teachers for long 10 years numbering few thousands, rendered the order with certain direct ons. The extra-ordinary problem was solved in an extra-ordinary method. The Hon'ble Supreme Court also directed that, that order would govern all those who were in service as substitute/ad hoe teachers. It should also govern all pending litigations before the High Court or any other Tri­bunal. Learned Advocate General has rightly submitted that direction issued in para 6 of the judgment in the case of All Manipur Regular Posts Vacancies Substitute Teachers Association (supra) was issued on the peculiar facts of the case and that order cannot be pressed into service in respect of all ad hoc/ substitute appointment, namely, consideration of their case for regularisation by constituting DPC exclusively for the ad hoc/substituted appointees. 7. Appointments on ad hoc/substitute/officiating are made in exceptio­nal cases by way of stop gap arrangement against fortuitous vacancies purely for a temporary period. Although appointment on ad hoc/substituted basis is temporary but all temporary appointments are not ad hoc/substitute/ officiating. From the appointment orders of both the petitioners it appears that they were appointed against regular vacant posts, inasmuch as, the appointment letters stipulate that their initial appointments were for 6 months or till the posts would be filled up on regular basis. Admittedly there are service rules regulating the appointments of the Grade III and Grade IV employees in the establishment of the respondents of the writ petitions. When the vacancies were not fortuitous but regular, the appointment on ad hoc/substitute basis was not at all warranted. Respondents ought to have filled up the posts by making appointment as per provisions of the Rules, at least by making selection amongst the candidates sponsored by the Employ­ment Exchange or amongst the candidates who offered their candidature in response to open advertisement calling for applications. This sort of back­door appointment should be and mast be discouraged. From the order dated 24th Oct. This sort of back­door appointment should be and mast be discouraged. From the order dated 24th Oct. her, 1992 and 22nd December 1992 and 22nd February, 1993 (Annexure A/4 to Civil Rule No.738 of 1993), I find that not only the petitio­ner but there are more than 80 posts in the cadre of Grade III and Grade IV cadre in the establishment of the Director of Education (S) came to be filled up by appointing incumbents on ad hoc/substitute basis Similarly, it also appear from the order dated 20th October, 1992, 22nd February, 1993 it); re than 40 posts in the cadre of Grade III and Grade IV in the establishment of the Director of Horticulture and Soil Conservation, Manipur were filled up by ad hoc/substitute appointments. All these disclose the filling up of vacant posts be making appointment on ad hoc/substitute is the general rule and filling up the posts according to Rules by selecting either from the candidates sponsored by the Employment Exchange or from the candidates who offered their candidature in response to open advertisement, is the exception. This sort of practice in filling up vacant posts by making irregular appointments or in other words through back door entry is arbitrary and violative of Article 14 and 16 of the Constitution, inasmuch as, hundreds of qualified unemployed citizens are deprived of the opportunities of being considered for appointment against the vacant posts. Besides such large scale irregular appointments through back door entry opens the flood gate of nepotism and favouritism. Direction to regularise such irregular appointments to the exclusion of others, would only encourage such unhealthy practice. It is appropriate to refer to the observation of the Hon'ble Supreme Court in the case of State of Haryana vs. Piara Singh ( AIR 1992 SC 2130 ). In para 12 (e) of the judgment, the Hon'ble Supreme Court has observed : "(e) Many appointments may have been made irregularly as in this case­in the sense that the candidates were neither sponsored by the Employment Exchange nor were they appointed after issuing a proper advertisement calling for applications. In sbort it may be a back door entry. A direction to regularise such appointments would only result in encouragement to such unhealthy practice." 8. In sbort it may be a back door entry. A direction to regularise such appointments would only result in encouragement to such unhealthy practice." 8. Posts which are sanctioned temporarily should also be filled up by selection amongst the candidates available as per requisition from the Employ­ment Exchange or on the basis of open advertisement. For filling up such temporary posts resorting to appointment on ad hoc/substitute basis is not called for. If the temporary posts are not made permanent and subsequently abolished, the incumbents who have been appointed temporarily through selection may be retrenched, but they will have a claim for absorption against future available vacant posts in the cadre. 9. The order dated 22.11.90 in Civil Rule No. 646 of 1990 and the judgment and order dated 16.9.91 in Civil Rule No. 200 of 1991 and others were rendered by this Court on the facts of those case and these order and judgment cannot held the petitioners of these petitions who came to be appointed on ad hoc/substitute basis in the year 1991. In this connection I have taken note of the Govt. "f Manipur, Department of Personnel and Administrative Reform's Office Memorandum No. 12/13/92-AG/DP (Pt) dated 9th October 1992, by which the Govt. of Manipur took the policy decision for regularisation of all classes of ad hoc appointments in Class I, II, III and IV cadre, both from the direct as well as promotion quotas. But that policy decision does not help the petitioners, inasmuch as, that policy decisions is applicable in respect of the incumbents who have been holding the posts for 5 years or more on ad hoc/substitute basis. 10. For filling up the vacant posts, including a temporary one, in t'»e cadre of Grade III and Grade IV in the establishment of the respondents, appointment on ad hoc/substitute basis is not warranted, inasmuch as the vacant posts can he filled up without loss of time by making selection from amongst the candidates available through requisition from the Employment Exchange or through open advertisement inviting application from the eligible candidates. When appointment in the posts of Grade I and Grade II cadre are required to be made on the basis of the selection by the Public Service Commi­ssion, immediate filling up of the vacant posts may not be possible. When appointment in the posts of Grade I and Grade II cadre are required to be made on the basis of the selection by the Public Service Commi­ssion, immediate filling up of the vacant posts may not be possible. Even then temporary appointments against the vacant post till selection by Public Service Commission, in all fairness, should be made by selection amongst the candidates sponsored by the Employment Exchange or from those who offered their candidature in response to open advertisement. Back door entry to the vacant posts which breeds nepotism, favouritism and corruption, should and must be avoided as far as practicable. 11. For the reasons stated above, the petitions are disposed of with the following directions : (1) The Secretary to the Govt of Manipur, Education Department as well as the Director of Education (S), Manipur the respondents in Civil Rule No. 738 of 1993 are directed to fill up all the vacant posts, both permanent or temporary, occupied by ad hoc/substitute appointees within a period of 3 months from the date of receipt of this order according to the procedure prescribed by the Recruitment Rules. The petitioner and other incumbents who were appointed against the vacant post on sub-situate /ad hoc basis should also be given opportunity to appear before the DPC to be constituted for that purpose. (2) The Secretary to the Govt. of Manipur, Horticulture and Soil Conservation Deptt. and the Director of Horticulture and Soil Conser­vation, the respondents in Civil Rule No. 764 of 1993 are directed to fill up all the vacant posts, perm anent and temporary, occupied by ad hoc/ substitute appointees within a period of 3 months from the date of receipt of this order according to the procedure prescribed by the Recruitment Rules. The petitioner and other incumbents who were appointed against the vacant posts on substitute ad hoc basis should also be given opport­unity to appear before the DPC Constituted for that purpose. (3) In the absence of any Recruitment Rules, the vacant posts of particular cadre shall be filled up by nuking selection amongst the candidates available through requisition from the Employment Exchange or through open advertisement inviting applications. (3) In the absence of any Recruitment Rules, the vacant posts of particular cadre shall be filled up by nuking selection amongst the candidates available through requisition from the Employment Exchange or through open advertisement inviting applications. (4) The services of the incumbents who arc holding the posts on substitute/ad hoc/officiating basis may be extended for a period of 3 months or for the period till regular appointments are made as per the aforesaid direction, whichever is earlier, if their services are required and no outsider shall be appointed against the vacant posts on ad hoc/ substitute/officiating basis during the interim period.