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2010 DIGILAW 659 (GAU)

State of Manipur v. Heikrujam Meino Singh

2010-08-26

ASHOK POTSANGBAM, MAIBAM B.K.SINGH

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JUDGMENT Asok Potsangbam, J. 1. Heard Mr. H. Raghumani Singh, learned Government Advocate, appearing on behalf of the State Appellants and Mr. S. Jayanta Singh, learned senior counsel appearing on behalf of the Respondent/writ Petitioner. 2. The prayer for condonation in preferring this writ appeal was allowed on 31.3.2010 by this Court in MC(W.A.) No. 133/2009 and there after, the instant writ appeal has been registered and numbered as W.A. No. 33/2010. 3. Having considered that the issues involved in this appeal are no longer res integra in view of various affirmative decisions of the Apex Court on the issues and also with the consent of the parties, this writ appeal is taken up for hearing and disposal at the admission stage. 4. Brief facts which are relevant for disposal of this appeal may be noticed as hereunder: 4.1. The Petitioner was appointed as an officiating Zilladar along with four (4) Ors. by an order dated 14.8.1987 issued by the Commissioner and, Secretary (Revenue), Government of Manipur, in the Revenue Department. It is also not in dispute that the appointment of the Petitioner as officiating Zilladar was not made after any advertisement nor was it on the recommendation of any selection Committee/DPC whereas the recruitment rules framed under Article 309 of the Constitution of India regulating the recruitments and conditions of the service to the post of Zilladar, contemplates that a person can be appointed as Zilladar on the recommendation of DPC/Selection Committee. In other words, a candidate for appointment to the post of Zilladar will have to be sponsored by the Employment Exchange on the basis of public advertisement and thereafter, the suitability test has to be undergone through a selection process and only then. Government can make appointment from the select list so prepared by the DPC. 4.2. In the instant case, none of the conditions mentioned above which are the requirement of Articles 14 and 16 of the Constitution of India, have been complied with at the time of initial appointment of the Petitioner. 4.3. The Government of Manipur, by way of policy, issued an Office Memorandum under No. 14.1.94 Ad-hoc/DP dated 22.8.1994 for regularization of its Ad-hoc employees on fulfilling the conditions stipulated therein. 4.3. The Government of Manipur, by way of policy, issued an Office Memorandum under No. 14.1.94 Ad-hoc/DP dated 22.8.1994 for regularization of its Ad-hoc employees on fulfilling the conditions stipulated therein. The relevant portion of the conditions at Para (ii) and (vi) of the aforesaid Office Memorandum are reproduced herein below: (ii) All Ad-hoc appointees of both gazetted and non-gazetted posts against direct recruitment quota which were held on Ad-hoc basis for at least two (2) years as on 1.1.1994 and for those who continue to hold their respective posts till date should be regularized through Special DPC by screening the eligibility of the candidates as per the existing R/R/of the posts. However, while regularization of such Ad-hoc posts, the reservation of Sc/ST as per the 100 Point Roster is to be strictly followed. Such regularization should however, be against clear vacancies only. (vi) The regularization of such Ad-hoc/officiating employees will be ONE TIME and should be completed on or before 31.8.1994 and No Retrospective Effect Will Be Allowed. Further, order for the regularisation of such Ad-hoc employees should be based on the written recommendation of the concern special DPC/Screening Committee. Ail Department/Officers under this State Government are hereby informed to ensure that all cases which are covered by the above decisions are strictly complied with. This is issued in supersession of all previous decision taken in this regard. 4.4 Para (ii) of the O.M., as extracted above, clearly lays down that while considering the regularization through a special DPC, the reservation for SC/ST as per the 100 Point Roster is to be strictly followed and Para (vi) puts a time limit to complete the exercise on or before 31.8.1994. As per 1 GO Point Roster prevalent at the relevant point of time, the first vacancy and the 4th vacancy in a total of 4 (four) vacancies, are to be reserved for SC/Scheduled Tribe respectively. 4.5. It may be stated that out of the five (5) persons including the Petitioner who were appointed as officiating Zilladars on 14.10.1987, one already died and four remained but all the four admittedly belong to non-reserved category i.e. neither ST nor SC. Two of the four officiating Zilladars were appointed on regular basis by an order dated 5.9.1994 on the basis of the recommendation made by the Special DPC held on 31.8.1994 in terms of the regularisation policy dated 22.3.1994. One Mr. Two of the four officiating Zilladars were appointed on regular basis by an order dated 5.9.1994 on the basis of the recommendation made by the Special DPC held on 31.8.1994 in terms of the regularisation policy dated 22.3.1994. One Mr. Gunamani Singh, who was appointed along with the Petitioner as officiating Zilladar, was also regularized by an order dated 12.7.2004 by way of complying with the order dated 29.5.1995 passed by this Court in C.R. No. 158 of 1995. 4.6. It is in dispute that the Petitioner never challenged the order dated 5.9.1994 regularizing the two officiating appointees either on the ground of discrimination or non-consideration of his case. The Petitioner has filed Writ Petition (C) No. 896 of2005, about a decade after the regularization of aforesaid two persons to the post of Zilladar, claiming similar treatment of regularization of one Shri M. Gunamani Singh, who was regularized on 12.7.2004 by way of complying with the order passed by this Court. 5. It appears that the Government did not file any counter affidavit in connection with the aforesaid writ petition before the learned Single Bench but from the impugned judgment, it can be gathered that the Government had pleaded that the O.M. was one time measure and the life of the O.M. was not extended beyond 31.8.1994 and that regularization of one Shri M. Gunamani Singh was not a voluntary action of the Government but it was in compliance of an order passed by this Court earlier and as such, the Petitioner was not entitled to any of the reliefs sought in this writ petition. 6. The learned Single Judge, after hearing the parties, disposed of the writ petition on 5.9.2008 by directing the Appellants/Respondents to regularise the officiating service of the Petitioner to the post of Zilladar as done in the case of one Shri M. Gunamani Singh. 7. Being aggrieved by the aforesaid impugned order dated 5.9.2008, this writ appeal has been filed by the State Appellants. 7. Being aggrieved by the aforesaid impugned order dated 5.9.2008, this writ appeal has been filed by the State Appellants. In this writ appeal, the grounds taken by the state Appellants may be summarized as follows: (i) Respondent-writ petition cannot claim regularization of his officiating appointment to the post of Zilladar, on the basis of O.M. dated 22.8.1994 as the appointment to the post of Zilladar is governed by the recruitment rules framed under Article 309 of the Constitution of India and that appointment to a public office can be made after public notification of the vacancies followed by a selection process as contemplated by the relevant RR. The above is the requirement of Article 14 and 16 Of the Constitution of India. (ii) The validity of the OM dated 22.8.1994 was never extended beyond 31.8.1994 and the regularization intended under the aforesaid OM was to be completed on or before 31.8.1994 and as such, no claim can be made for regularization on the basis of the OM dated 22.8.1994 after about a decade. Delay and latches disentitle the Petitioner to any relief sought in the writ petition. (iii) In view of the law laid down by the Constitution Bench of the Apex Court in (2006) 4 SCC 1 : Secretary State of Karnataka and Ors. v. Utnadevi (3) and Anr. and also other subsequent cases, the High Court is disabled from giving any direction to regularize the service of the Petitioner. (iv) As the recruitment rules governing appointment to the post of Zilladar do not contain any provision enabling the Govt. to regularise an ad-hoc/officiating employee, direction given by the learned Single Judge is contrary to law laid down by the Apex Court in (2004) 7 SCC 112 : A. Umarani v. Registrar, Co-operative Societies and Ors., wherein the Apex Court held in Para 45, the following: No regularization is, thus, permissible in exercise of the statutory (sic executive) power conferred under Article 162 of the Constitution of India and after the appointments have been made in contravention of the statutory Rules. 8. The Articles 14 and 16 of the Constitution of India is a positive concept and as such, no mandamus can be issued by this Court to perpetuate an illegality which is contrary to law laid down in Umadevi case (supra). 9. 8. The Articles 14 and 16 of the Constitution of India is a positive concept and as such, no mandamus can be issued by this Court to perpetuate an illegality which is contrary to law laid down in Umadevi case (supra). 9. Respondent/writ Petitioner has contended that fairness and equity demand that the Respondent/writ Petitioner should be given the benefit of regularization which was already accorded to a similarly situated person and in support of his argument, the learned senior counsel appearing for the Respondent/writ Petitioner has pressed into service the case reported in AIR 1994 SC 1074 (Para 24): Managing Director, ECIL, Hyderabad etc. etc. v. B. Karunakar etc. etc. 10. In the light of the rival submissions made by the parties and the law laid down by the Apex Court pertaining to the issue of regularization, this Court is to examine and decide as to whether impugned judgment and order dated 5.9.2008 passed by the learned Single Judge is sustainable in law or not? 11. As discussed above, in Umarani case (supra), the Apex Court held that regularization is impermissible in exercise of the power conferred under Article 162 of the Constitution of India and if such regularization is not authorized by the relevant Rules or in contravention of the statutory rules framed under Article 309 of the Constitution of India, any appointment/regularization made thereto shall be a nullity in law. In Para 43 of Umadevi case (supra) the Apex Court held the following: 43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the Scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. Therefore, consistent with the Scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employee who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. 12. In a recent judgment of the Apex Court reported in (2009) 5 SCC 193 in Pinaki Chatterjee and Ors. v. Union of India and Ors., the Apex Court held that regularization on the basis of departmental instructions issued prior to and contrary to the law laid down in Umadevi's case (supra) is impermissible in law and no claim in this regard can be entertained by the Court. The rationale behind the aforesaid decision of the Apex Court is that departmental instruction or executive instructions purportedly issued under Article 162 of the Constitution of India did not take into consideration the limitation of power of State to make appointment in total disregard of the mandatory provision of the recruitment rules, constitutional provisions as such, and such departmental instructions/executive instructions were held as contrary to law and they could not be given effect to. 13. 13. In (2009) 9 SCC 304 : Union of India and Ors. v. Muralidhara Menon and Anr., the Apex Court held that if the relief has been granted in case of one employee on the basis of the materials available before it the same by itself cannot be treated to be binding precedent so as to enable the Tribunal/High Court to issue writ of or in the nature of mandamus. The Apex Court again held in (2010) 2 SCC 422 : Union of India and Anr. v. Kartik Chandra Mondal and Anr. that even assuming that similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become a foundation perpetuating further illegality. If the appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of general welfare of the public or a considerable section. This has been the consistent approach of this Court. In (2009) 3 SCC 661 : Punjab State Electricity Board and Ors. v. Jagjiwan Ram and Ors. it was held by the Apex Court that the order passed by the High Court was binding and the same has to be given effect to in absence of the stay order by the High Court or any other order to give effect to the same. In (2009) 2 SCC 479 : S.S Balu and Anr. v. State of Kerala and Ors., the Apex Court held that when the Petitioner approached the High Court after long delay, the relief prayed for may be denied on the ground of delay and latches irrespective of the fact that he is similarly situated to other candidates who obtained the benefit of the Judgment. In (2007) 2 SCC 725 : A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala and Ors. the Apex Court held the following: 40. The benefit of a judgment is not extended to a case automatically. While granting relief in a writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the Petitioner. In doing so, the Court is entitled to take into consideration the fact as to whether the writ Petitioner had chosen to sit over the matter and then wake up after a long delay, the same may disentitle him to obtain a discretionary relief. 14. In doing so, the Court is entitled to take into consideration the fact as to whether the writ Petitioner had chosen to sit over the matter and then wake up after a long delay, the same may disentitle him to obtain a discretionary relief. 14. The decision of the Apex Court, Constitution Bench, in Umadevi's case, on public employment, was sought to be diluted by Anr. Bench of the Apex Court in Pooran Chandra Pandey's Case reported in (2007) 11 SCC 92 , allegedly on the ground of and by invoking Article 14 of the Constitution of India. Correctness of the judgment and finding recorded in Pooran Chandra Pandey's Case (two Judges Bench) came to be considered before a larger Bench of the Apex Court (three Judges) reported in (2008) 10 SSC 1: Official Liquidator v. Dayanand and Ors. wherein, the Apex Court held that by virtue of Article 141 of the Constitution of India, the judgment of the Constitution Bench in Umadevi's Case is binding on all Courts including the Supreme Court till the same is overruled by a larger Bench of the Apex Court and therefore, the finding in Pooran Chandra Pandey's Case (supra) was held to be obiter and should not be treated as binding upon the High Court and Tribunal. The Apex Court farther held that judicial discipline demands that High Court or smaller Bench of the Supreme Court cannot ignore or bypass the ratio laid down by larger Bench of the Apex Court. 15. In the factual background, as discussed above, indisputably the initial appointment of the Respondent/writ Petitioner as officiating Zilladar, de hors, the Rules inasmuch as no public advertisement was made nor was the appointment made on the basis of any recommendation of a DPC/Selection Committee. The OM dated 22.8.1994 is contrary to the recruitment rules framed under Article 309 of the Constitution of India and does not contain any provision enabling the authority to regularize an ad-hoc/officiating employee. In view of the law laid down by the Apex Court in Umarani's case, Pinaki Chatterjee's case and Umadevi's case (supra), the Respondent/writ Petitioner could not and cannot claim regularization to the post of Zilladar and the learned single Judge ought to have rejected the prayer for regularization of the Respondent/writ Petitioner. In view of the law laid down by the Apex Court in Umarani's case, Pinaki Chatterjee's case and Umadevi's case (supra), the Respondent/writ Petitioner could not and cannot claim regularization to the post of Zilladar and the learned single Judge ought to have rejected the prayer for regularization of the Respondent/writ Petitioner. Further, the case of the Respondent/writ Petitioner also suffers from delay/latches and on this count also, the impugned judgment and order of the learned Single Judge is liable to be interfered with as there was no explanation/finding on the delay of about a decade. We have also noticed that the learned Single Judge had not considered at all as to the correctness or legality of the order dated 29.5.2005 passed by this Court in CR No. 158/1995 filed by the said N. Gunomani Singh before giving direction to extend the benefit of the aforesaid judgment and order. The aforesaid judgment and Order dated 29.5.2005 is not before us to determine its correctness or legality. But we, on overall consideration of the legal principle laid down by the Apex Court as discussed above, frown at as such judgment and order as the same does not comply with the requirement of Articles 14 and 16 of the Constitution of India 16. In view of what has been discussed hereinabove, and on a consideration of the ratio laid down by the Apex Court, in a catena of cases referred to above, we have no hesitation to hold that the impugned judgment and order 5.9.2008 passed by the learned Single Judge in W.P.(C) No. 896/2005 for regularizing the Respondent/writ Petitioner to the post of Zilladar in State Revenue Department is contrary to the settled position of law and as such the same is liable to be set aside. Accordingly, we do set aside the impugned judgment and order dated 5.9.2008 passed by the learned Single Judge in W.P.(C) No. 896/2005 as not sustainable in law and W.P.(C) No. 896/2005 is dismissed as devoid of merit. Consequently, the writ appeal is allowed. However, in the facts and circumstances of the case, there will be no order as to costs. Appeal allowed.