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2015 DIGILAW 1362 (GAU)

Union of India v. Vanramnghaki

2015-10-16

B.K.SHARMA, M.R.PATHAK

body2015
JUDGMENT : B.K. Sharma, J. 1. This writ appeal is against the judgment and order dated 9th September, 2011 of the learned Single Judge passed in W.P. (C) No. 86/2010. By the said judgment, while interfering with the communication dated 13th August, 2011 of the Government of Mizoram in the Social Welfare Department directing the Mizoram State Social Welfare Board to cancel the order of regularisation of the services of the writ petitioners earlier passed, the learned Single Judge has upheld the said earlier order dated 12th May, 2010, by which the services of the petitioners were regularised. The learned Single Judge has also issued the following directions:- "(i) The Mizoram Social Welfare Advisory Board is directed to submit budget estimate afresh to the State Social Welfare Department, within a period of one month from the date of receipt of a copy of this judgment. (ii) On receipt of the budget estimate, the Social Welfare Department, Mizoram, shall forward it to the Finance Department, immediately for its concurrence. (iii) On receipt of the proposal, the Finance Department shall accord necessary sanction within a period of next one month and communicate it to the concerned departments, as well as to the MSSWB. (iv) On receipt of the financial concurrence, the State Social Welfare Department shall forward it to the Central Social Welfare Board as well as to the Ministry of Human Resource Development, without any delay. (v) On receipt of the letter of budget allotment from the State Government, the Government of India shall sanction their contribution of 50% budgetary requirement of the employees, within 2 (two) months thereof, without fail." 2. In the writ appeal, the appellants have contended that the order of regularisation had to be withdrawn inasmuch as the procedure required to be followed was not followed. It has also been contended that the writ Court could not have ordered for regularisation of the services of the writ petitioners against the earlier decision of the Government. The appellants have also referred to the order dated 10th April, 2012 passed in another writ petition being W.R. (C) No. 271/2012, Bimola Devi vs. State of Manipur and Others, in which the direction was to consider the case of the petitioner for regularisation of her service. 3. The appellants have also referred to the order dated 10th April, 2012 passed in another writ petition being W.R. (C) No. 271/2012, Bimola Devi vs. State of Manipur and Others, in which the direction was to consider the case of the petitioner for regularisation of her service. 3. In the affidavit filed by the appellants, it has been contended that the Government of India is willing to adjust the services of the writ petitioners in other State Social Welfare Boards. According to them, the writ petitioners have denied to give their consent to work outside the State of Mizoram. For a ready reference, paragraph 6 of the affidavit filed on 28th January, 2015 is reproduced below:- "6. That it was also alternatively considered to regularise the respondent employees against regular posts existing in other State Social Welfare Boards. However, any such adjustment will be prejudicial to the said Boards from whom the posts would be adjusted, hence agreement of respective State Govt. is necessary. However, the respondent employees have denied to give consent to work outside the State of Mizoram. Hence, despite sincere and bono fide attempt at regularising the services of the respondent employees, no progress could be made till now, due to absence of willingness of the respondents themselves. At best, the cases of the respondents employees can be considered against sanctioned regular vacancies, as and when they arise in the Mizoram State Social Welfare Board." 4. The facts involved in the case are in a very narrow campus. As was detailed in the writ petition, the writ petitioners have been serving in the State Social Welfare Board in various capacities. They are in their respective services for the last about 10 to 20 years. By Annexure-13 letter dated 25th June, 1999, the Central Social Welfare Board conveyed the decisions as contained in the said letter with the request to take necessary action to pursue the matter with the State Government. For a ready reference, the said letter is quoted below:- F.1-86/S.B. Admn. (VoI. III) Dated: June 25, 1999 Madam, Your attention is drawn to the issue of regularisation of posts of adhoc staff and VAB staff in the State Social Welfare Advisory Boards, which has been a long pending issue in all State Boards. This matter was discussed with the Department of Women & Child Development, Govt. of India last week. (VoI. III) Dated: June 25, 1999 Madam, Your attention is drawn to the issue of regularisation of posts of adhoc staff and VAB staff in the State Social Welfare Advisory Boards, which has been a long pending issue in all State Boards. This matter was discussed with the Department of Women & Child Development, Govt. of India last week. The decision of the Government of India is that State Boards will have to first take up the matter regarding regularisation of the ad-hoc and VAB posts with the concerned State Governments. If the State Government is willing to regularise the posts and bear 50% expenditure on these posts the proposal may then be sent to the CSWB with full justification. The CSWB will in turn have to get the approval of the Govt. of India for meeting share of the additional cost arising from regularisation of posts in each State Board. You are requested to now take necessary action to pursue this matter with your State Government. The CSWB will be able to move the GOI for meeting 50% of the expenditure on any additional regular posts in State Boards only after the State Governments concur with the same." (Emphasis added) 5. As per the above quoted letter, there are 4(four) stages one after another towards regularisation of the posts in each State Board, which are as follows:- (i) The State Boards will have to first take up the matter regarding regularisation of the ad-hoc and VAB posts with the concerned State Governments. (ii) If the State Government is willing to regularise the posts and bear 50% expenditure on the posts, then. (iii) Proposal be sent to the Central Social Welfare Board with full justification. (iv) The Central Social Welfare Board will in turn have to get the approval of the Government of India for meeting share of the additional cost arising from regularisation of posts in each State Board. 6. After the aforesaid letter dated 25th June, 1999, the Government of Mizoram in the Social Welfare Board vide its Annexure-14 letter dated 10th March, 2000, conveyed the agreement of the State Government to share 50% of expenditure for pay and allowances of the ad-hoc staff and Voluntary Action Bureau (VAB) staff who are working under Mizoram State Social Welfare Advisory Board. Be it stated here that the petitioners involved in the proceeding are the said staff. Be it stated here that the petitioners involved in the proceeding are the said staff. After the said agreement, further correspondences followed and vide Annexure-17 order dated 13th October, 2000, the Central Social Welfare Board intimated the Mizoram State Social Welfare Advisory Board that the proposals received from the State Board had been forwarded to the Government of India for their consideration and that reply was still awaited. 7. By Annexure-15 letter dated 12th October, 2000 addressed to the State Board by the Central Social Welfare Board, it was conveyed inter-alia thus:- "A circular was issued to all the State Boards to take up the matter regarding the regularisation of the VAB staff with their respective State Governments. It is regretted that in the most cases the State boards have either not taken any action or have not actively persuaded the matter with the State Govt. it is desired that the State Boards immediately take up this matter with the State Govt. for regularisation of the post of VAB Counsellor in the Welfare officer's pay scale and the LDC in the LDC/clerk's pay scale of the State Govt. As it has already been approved by the Executive Committee of the Central Social Welfare Board." (Emphasis added) 8. After the aforesaid correspondences, further correspondences followed and the Central Board by its Annexure-19 letter dated 28th December, 2001, requested the State Board to furnish the required information enabling the Board to send the proposal to the concerned departments. Responding to the said communication, the State Board vide its letter dated 16th January, 2002 again conveyed the agreement of the State Government to share 50% of expenditure for pay and allowances towards ad-hoc staff and VAB staff working under Mizoram State Social Welfare Advisory Board. The said letter was followed by Annexure- 21 letter dated 24th September, 2004 indicating the scale of pay etc. meant for the staff. Thereafter, further communication was made towards compliance of the requirements as envisaged in the above quoted Annexure-13 letter dated 25th June, 1999. Even the Chief Minister of the State vide his D.O. letter dated 10th February, 2006 (Annexure-24) conveyed the agreement of the State Government to bear the 50% of the State expenses towards regularisation of the staff of the State Board. 9. Even the Chief Minister of the State vide his D.O. letter dated 10th February, 2006 (Annexure-24) conveyed the agreement of the State Government to bear the 50% of the State expenses towards regularisation of the staff of the State Board. 9. After the aforesaid development, further correspondences were made between the authorities and eventually by Annexure-30 letter dated 1st February, 2008, the Government of Mizoram in DP & Administrative Reforms (ARW) conveyed its approval to the proposal for regularisation ' of the ad-hoc and VAB staff of the Mizoram State Board. By Annexure-36 office order dated 12th October, 2010, the services of the ad-hoc and VAB staff of the State Welfare Board was regularised with effect from 1st April, 2010 by the Chairman of the, Board. Before that, by Annexure-31 letter dated 25th March, 2008, the Government of Mizoram in the Social Welfare Department had intimated the State Board that the Finance Department had informed that regularisation of ad-hoc employees working in Mizoram State Social Welfare Board was not advisable as they were outside the State Government. However, by Annexure-33 letter dated 27th August, 2008, the Government of Mizoram in the Social Welfare Department had conveyed to the Mizoram State Social Welfare Board that regularisation might be taken up by the Board itself and the Government would have no objection. 10. After the aforesaid development with the regularisation order dated 12th May, 2010, the Government of Mizoram in the Social Welfare Department by its communication dated 13th August, 2010 addressed to the Mizoram State Social Welfare Board directed to cancel the order of regularisation. For a ready reference, the said letter is quoted below:- "To, The Chairman, Mizoram State Social Welfare Board (MSSWB), Aizawl, Mizoram. Subject: Prayer to convey approval of DP & AR (ARW) to the proposal of Social Welfare Department for regularisation of Adhoc/VAB Staff etc. Sir, In inviting a reference to your letter quoted above, I am directed to request you to cancel your Office Order No. SSWB 4/2010-2011/1 dated 12.5.2010 for regularisation of Adhoc Staff and VAB Staff and to comply with the instruction/observation of Finance Department as conveyed vide item (2) & (3) of this Department's letter of even No. dated 27.8.2008. Further you are also requested to submit the proposal to Central Social Welfare Board with Justification who will in turn move the Govt. Further you are also requested to submit the proposal to Central Social Welfare Board with Justification who will in turn move the Govt. of India's approval for meeting 50% of the Central Social Welfare Board's share on account of the Additional Cost arising out of regularisation of Adhoc/VAB Staff under Mizoram State Social Board as specified by Central Social Welfare Board. In this regard, it is also clarified by the Central Social Welfare Board vide their letter No. F.1-85/SB.Adm (Volume-11) dated 5.6.1999, that the Central Social Welfare Board will be able to move the Government of India for meeting 50% of the expenditure on any additional regular posts in State Board only after the State Govt. concur with the same. Yours faithfully Sd/- (B. SAIRENGPUII) Secretary to the Govt. of Mizoram Social Welfare Department." 11. It is in the aforesaid circumstances, the writ petition was filed and the learned Single Judge by the impugned judgment & order dated 9th September, 2011 while setting aside the direction for cancellation of the order for regularisation and upholding the order of regularisation issued the directions indicated above. 12. We have heard Ms. Zairemsangpuii, learned Central Government counsel representing the appellants. We have also heard Mr. A.R. Malhotra, learned counsel appearing for the writ petitioners/respondents. We have also considered the entire materials on record. 13. Ms. Zairemsangpuii, Central Government counsel referring to the Office Memorandum dated 18th September, 2013 annexed to the affidavit filed on 28th January, 2015 submits that the Government of India having adopted the policy decision regarding expenditure management; economy measures and rationalisation of expenditure with the decision to ban on creation of plan and non-plan posts, it will not be conducive to order for regularisation of workers in State Social Welfare Board. 14. Mr. A.R. Malhotra, learned counsel appearing for the writ petitioners/respondents submits that the aforesaid Office Memorandum dated 18th September, 2013 cannot be applied retrospectively so as to negate the very judgment of the learned Single Judge delivered on 9th September, 2011, in terms of which the directions contained therein were to be complied with within the time limits much before issuance of the aforesaid Office Memorandum. 15. We have given our anxious consideration to the submissions advanced by the learned counsel appearing for the parties. 16. When the writ appeal was filed, there was delay of about 563 days. 15. We have given our anxious consideration to the submissions advanced by the learned counsel appearing for the parties. 16. When the writ appeal was filed, there was delay of about 563 days. In between, the appellants did not do anything in the matter as was required to be done in terms of the directions contained in the impugned judgment. That apart, the aforesaid Office Memorandum dated 18th September, 2013 also cannot have any retrospective application. As per the own decision of the Central Government, it is the State Government empowered to regularise the posts upon bearing 50% of the expenditures for the posts. The State Government has agreed to bear the said expenditure. The Central Board earlier took up the matter with the Union Government. The situation leading to the present state of affairs is the creation of the Union Government, inasmuch as, as will be evident from the Annexure-17 letter dated 13th October, 2010, about which mention has been made above, the proposal that was mooted by the State Board through the State Government and also responded to by the Central Board was not attended to by the Government of India although was forwarded for their consideration. In the said letter, the Central Board clearly indicated that no reply had been received from the Central Government. 17. The learned Single Judge upon a threadbare discussion of the entire facts and the measures required to be adopted by the respective respondents involved in the writ petition, including the Central Government, was inclined to set aside the direction to withdraw the order of regularisation. By the said judgment, while restoring the order of regularisation, the learned Single Judge also issued the directions noticed above. 18. As per the requirement of the Annexure-13 communication dated 25th June, 1999, the approval of the Government of India for meeting the share of the additional cost arising from regularisation of the posts in each State Board is required to be obtained. Inspite of fulfilling all the required condition as precedent up-to the level of third stage indicated above and the proposal being sent to the Central Government, no response was received as will be evident from Annexure-17 communication of the Central Board dated 13th October, 2000. Inspite of fulfilling all the required condition as precedent up-to the level of third stage indicated above and the proposal being sent to the Central Government, no response was received as will be evident from Annexure-17 communication of the Central Board dated 13th October, 2000. In this kind of a situation, it does not lie on the mouth of the Central Government to say that because of the aforesaid Office Memorandum dated 18th September, 2013, it is not possible to create either plan or non-planned posts. 19. Considering all the above, this writ appeal stands disposed of directing the Government of India to comply with their part as envisaged in the above quoted communication dated 25th June, 1999 and also indicated in paragraph 5(iv) above. While doing so, they will bear in mind that as per the decision of the Apex Court in State of Karnataka vs. Umadevi, (2006) 4 SCC 1 , it is incumbent on the part of the respective Government to consider regularisation of the services of those workers, who have completed more than 10(ten) years of service. For a ready reference, paragraph 53 of the said judgment is quoted below:- "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the Courts or of tribunals and should further ensure that regular recruitment's are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme." 20. With the above modification of the impugned judgment, the appeal stands disposed of. Now' the appellants shall carry out their part of the required exercise with appropriate order consistently with the observations made in this judgment and as expeditiously as possible, preferably within 3(three) months from today.