S. Sonpao Haokip: Chingngohchin: All Manipur Schooless Villages School Teachers Association: Lalzawmlen Hmar: Ashikho Henia: and Ors. v. State of Manipur and Ors.
1996-04-19
H.K.SEMA
body1996
DigiLaw.ai
These batches of writ petitions are interlinked and as such they are being disposed of by this common judgment. 2. I have heard Mr. BP Sahu, learned counsel for the petitioners in CRNo.5 of 1993 and CRNo.342 of 1995, Mr. I. Lalitkumar Singh, learned counsel for the petitioners in CRNo.330 of 1996 and CRNo.355 of 1995, Mr. HS Paonam, learned counsel for the petitioners in CR No.282 of 1996 and CR No. 1197 of 1994 and Mr. RK Sanajaoba Singh, learned counsel for the respondents in C. Misc Application No.727 of 1995 on behalf of all the respondents. 3. The facts giving rise to the filing of these batches of writ petitions are cumbersome and may be briefly stated. The Government of Manipur created 100 posts of Matriculate Teachers for the school less villages in the Hill areas by an order No.3/157/84-SE (S) Pt dated 20.4.1987. By another order dated 30.5.1987, 84 posts of Matriculate Teachers have been created out of which 54 posts were meant for school less villages in the Hill areas. This would show altogether 154 posts of Matriculate Teachers were created for school less villages in the Hill areas. Out of 154 posts so created 57 posts had already been filled up. Thereafter, the Government have found that there were some excess appointment of teachers on ad hoc/substitute basis. 4. To fill up the vacancies including the posts held on ad hoc/substitute basis general DPC was convened in 1993. Written test was held on 8.7.93 and 22.8.93, viva-voce was held on 5.10.93 and 14.10.93. In the DPC all the writ petitioners in the aforesaid Civil Rules participated. The writ petitioner in CR No.5 of 1993 also filed Misc Application No.30 of 1994 objecting the holding of DPC and this Court passed an interim order on 18.2.94 ' "Until further orders, the respondents are directed not to declare the result of the aforesaid DPC." 5. An application filed by the respondents, this Court by an order dated " 27.6.94 modified the interim order dated 18.2.94 to the extent that the DPC may declare its result subject to the final outcome of this writ petition and a writ appeal was preferred by the writ petitioner registered as Writ Appeal No.268 of 1994 against the order dated 27.6.94 which has been dismissed on 8.7.1994.
Thereafter, the DPC declared its result recommending .20 candidates out of which 46 candidates were ad hoc/substitute teachers and 74 fresh candidates. However, the Government approved the recommendation of 71 candidates out of which 44 were ad hoc/substitute teachers and 27 were fresh candidates. Out of 44 recommended from the substitute/ad hoc teachers 41 candidates were from amongst the writ petitioners and 3 were from non petitioners. They have been given regular appointment by an order dated 23.9.94 subject to the final outcome of Civil Rule No.5 of 1993. However, 27 fresh candidates who had been recommended by the DPC and approved by the Government could not be given appointment because of the ban on fresh appointments. Now the ban for fresh appointment has been lifted but the appointment could not be given to the 27 fresh candidates recommended by the DPC because of the interim order passed by this Court on 6.1.93. As already stated out of 141 members of the writ petitioners' association, 41 had already got regular appointment being recommended by the DPC and remaining 100 unrecommended members of the association who could not qualify in the DPC held on 5.10.93 and 14.10.93 are continuing in service by reason of the interim order passed by this Court on 6.1.93. This Court on 6.1.93 passed an interim order in Civil Rule No.5 of 1993 as under: "It is directed that the respondent No.5 the Director of Education (S), Manipur shall make payment of salaries and allowances to the petitioners within January, 1993 and they shall be so paid thereafter regularly, making it clear that they shall not be ousted from service in the meantime." Because, of the aforesaid interim order the 100 members of petitioners Association ad hoc/substitute teachers are still continuing in the posts despite of the fact that they were not recommended by the DPC held on 5.10.93 and 14.10.93. An application has been filed by the respondents Government registered as C. Misc Application No.727 of 1995 for vacating the interim order dated 6.1.93. At the time of hearing of C. Misc Application as suggested by the parties the entire Civil Rules was heard because once the interim order is vacated nothing will remain to be considered. 6. In the back drop of the facts recited above, we shall now consider each Civil Rule on merit.
At the time of hearing of C. Misc Application as suggested by the parties the entire Civil Rules was heard because once the interim order is vacated nothing will remain to be considered. 6. In the back drop of the facts recited above, we shall now consider each Civil Rule on merit. Civil Rule No.5 of 1993 and Civil Rule No.342 of 1995 has been filed by the ad hoc/substitute teachers for regularising of their services. It is submitted by Mr. BP Sahu that similarly situated persons have also been regularised by the State Government and as such the petitioners Association also entitle to be regularisted and instead of regularising the services, the respondents Government resorted to folding a DPC thereby giving discriminatory treatment to the petitioners' Association by applying pick and choose policy. I am unable to accept this contention of Mr. Sahu for more than one reasons. Firstly, those persons who were alleged to have been regularised by the Government have not been made a party in this writ proceeding, secondly, if the competent Government in the facts and circumstances recited above resorted to holding a DPC it can not be said that holding of DPC is discriminatory treatment, in fact holding of DPC for filling up of posts or regularisation of the service is a procedure established by law and we always emphasise and re-emphasise the holding of DPC for filling up the posts so that better candidates are selected and appointed. It is also contended by Mr. Sahu that the facts of the case is squarely covered by the decisions of the Apex Court reported in AIR 1991 SC 2088 , AH Manipur Regular Vacancies Substitute Teachers' Association vs. State of Manipur, inasmuch as the petitioners' Association have been appointed on ad hoc/substitute teachers in July, 1991 and by the end of July, 1996 they would be completing 5 years of service. This submission in my opinion is misconceived because the situation arises in 1991 order of Supreme Court is not available in this case. The Hon'ble Supreme Court has decided the case as referred to above in the facts and circumstances of that case. By that decision no law has been laid down. It is well settled principle of law that the decision becomes a precedent where it decides the law. By the aforesaid decision of the Supreme Court no law has been laid down.
By that decision no law has been laid down. It is well settled principle of law that the decision becomes a precedent where it decides the law. By the aforesaid decision of the Supreme Court no law has been laid down. In the instant case, as already said the petitioners' Association has faced the regular DPC and they could not qualify themselves in the DPC. They are continuing in the posts at the cost of recommended candidates by virtue of the interim order dated 6.1.93 as quoted above. 7. The law is well settled by a catena of decision of the Supreme Court. Avoiding multiplicity, I may refer to the decision of the Supreme Court, State of Haryana & others etc vs. Piara Singh & others. This is what Apex Court has to say in paragraph 25 of judgment: "We think it appropriate to say a few words concerning the issue for regularisation of ad hoc/temporary employees in Government service. The normal rule, of course is regular recruitment through the prescribe agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employees by a regular selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee." (emphasis supplied) For the reasons aforestated the contention of Mr. Sahu fails. 8. Civil Rule No.282 of 1996 and CR No. 1197 of 1994 has been filed by the 27 fresh recommended candidates. As already said the DPC held on 5.10.93 and 14.10.93 also recommended 27 fresh candidates. Appointment order could not be issued to them because of ban of fresh appointment. It is submitted by Mr. HS Paonam that by now the ban has been lifted, and therefore the appointment of the selected candidates can be made. This position has also been admitted by Mr.
Appointment order could not be issued to them because of ban of fresh appointment. It is submitted by Mr. HS Paonam that by now the ban has been lifted, and therefore the appointment of the selected candidates can be made. This position has also been admitted by Mr. RK Sanajaoba Singh, learned counsel for the respondents Government that the ban has been lifted but in view of the interim order dated 6.1.93 no appointment order could be issued to the recommended candidates. Since the ban is lifted and they are recommended candidates and accepted by the Government they are entitled to be appointed to the posts of which they are recommended. 9. Civil Rule No.330 of 1996 and CRNo.355 of 1995 has been filed by the unsuccessful candidates in the DPC held on 5.10.93 and 14.10.93 challenging the validity of DPC. Apart from, being the DPC held on 5.10.93 and 14.10.93 has been challenged in the writ petitions in 1995 and 1996 respectively at the belated stage, the aforesaid writ petitions are not maintainable because the selected candidates has not been arrayed as party respondents in this writ petition. 10. In the instant case, DPC held on 5.10.93 has been challenged the writ petition in 1996 at belated stage. As already said, some of the ad hoc/substitute recommended candidates has been appointed pursuance to the recommendation of the DPC held on 5.10.93. If they are not arrayed as party respondents, they would be condemned unheard in Ishwar Singh Ajaykumar & others vs. Kuldip Singh & others, (1995) Supp 1 SCC 179. It has been held by the Apex Court that writ petition impugning selection and appointments, without impleading and service all the selected candidates are not maintainable. 11. This apart, while it is true that there is no period of limitation for the Court to exercise powers under Article 226, when the Court is approached at belated stage after certain length of time and in fitting case Court can refuse to exercise futile exercise of power over a stale matters, 12. In this connection, I usefully refer to the observation of the Apex Court in PS Sadasivaswamy vs. State of Tamil Nadu, AIR 1974 SC 2271 .
In this connection, I usefully refer to the observation of the Apex Court in PS Sadasivaswamy vs. State of Tamil Nadu, AIR 1974 SC 2271 . This is what the Apex Court has to say in concluding para 2 of the judgment as under: "A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extra ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioners' petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that1 the High Court was right in dismissing the appellant's petition as well as the appeal." For the reasons aforestated, the net result is that Civil Rule No.5 of 1993, CRNo.342 of 1995, CRNo.330 of 1996 and CRNo.355 of 1995 are dismissed, however, without costs. Civil Rule No.282 of 1996 and Civil Rule No. 1197 of 1994 are allowed. Consequently, Civil Misc Application No.727 of 1995 are also allowed. The interim order dated 6.1.1993 passed in CRNo.5 of 1993 stands vacated. Respondents are directed to appoint the recommended candidates forthwith.