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2018 DIGILAW 18 (MAN)

Khadangbam Subol Singh v. State of Manipur

2018-05-10

KH.NOBIN SINGH

body2018
JUDGMENT : KH. Nobin Singh, J. Heard Shri B.P. Sahu, learned Senior Advocate appearing for the petitioner and Shri A. Vashum, learned Government Advocate appearing for the State respondents. 2. By the instant writ petition, the petitioners have prayed for issuing a writ of Certiorari or any other appropriate writ or order or direction to quash and set aside the letter dated 14-07-2016 issued by the Director of Commerce & Industries, Manipur in respect of the posts of Instructors (Carpentry/Foundary/Tailoring and Cutting/Weaving), Skill Artisans/Demonstrators (Black Smithy/Wood Carving, Carpentry, Foundary, Tailoring and Cutting) and Peon and also for issuing a writ of Mandamus to direct the respondents to regularise/absorb their services through a Screening Committee. 3.1. The facts of the case as narrated in the writ petition, are that the petitioners were engaged as Skill Artisans (Doll & Toys), Winder, Sweeper, Demonstrator (Tailoring), Demonstrator (Foundary), Carpet Weaving, Blacksmith, Brass and Bell Metal vide various orders issued on various dates i.e., 01-09-1981, 21-08-1982, 21-08-1984, 18-05-1985, 05-06-1986, etc. as mentioned in para No. 2 of the writ petition and their engagements were extended from time to time, as a result of which they have been continuing in that capacity till date. 3.2. Shri K. Birjit Singh who was serving as Skill Artisan (Bamboo and Cane) on contract basis, was appointed to the post of Skill Artisan (Bamboo and Cane) vide order dated 28-07-1998 issued by the Director, Commerce & Industries, Manipur against the post created vide order dated 03-03-1978 and similarly, the Principal Secretary (Commerce & Industries), Government of Manipur issued an order dated 25-06-2010 by which eight persons who were working on casual basis, were appointed to the post of Demonstrator/Skill Artisan (PINA) subject to the condition that the said posts would be deemed to be abolished from the day they attained the age of superannuation or otherwise. On 09-03-2016 the Commissioner (Commerce & Industries), Government of Manipur issued an order according administrative approval and expenditure sanction for an amount not exceeding Rs. 33,13,608/- (rupees thirty three lakh thirteen thousand six hundred and eight) towards the payment of wages to the petitioners along with other casual/contract employees working in various Centre of the Department of Commerce & Industries, Manipur. Hardly four months later, the Director (Commerce & Industries), Government of Manipur addressed a letter dated 14-07-2016 to the Addl. 33,13,608/- (rupees thirty three lakh thirteen thousand six hundred and eight) towards the payment of wages to the petitioners along with other casual/contract employees working in various Centre of the Department of Commerce & Industries, Manipur. Hardly four months later, the Director (Commerce & Industries), Government of Manipur addressed a letter dated 14-07-2016 to the Addl. Director, Directorate of Employment Exchange, Lamphelpat, Government of Manipur with regard to the requisition of candidates for appointment to various posts in the Department from the open market. 3.3. Being aggrieved by the said letter dated 14-07-2016, the instant writ petition has been filed by the petitioners on the inter-alia grounds that the petitioners were engaged in their respective posts sometime in between the year 1981 and 1996 and since then, they have been continuously discharging their duties with the hope that their services would be regularised/absorbed in due course. They have legitimate expectation for being the regular employees of the Department prior to their attaining the age of superannuation and therefore, the respondents are duty bound to consider their cases for regularisation/absorption to their respective posts. Many ad-hoc/officiating/substitute employees have been regularized to their respective posts by the State Government by formulating various schemes in respect thereof including the one relating to conversion from the work-charged to regular establishment and the fact that the petitioners have not yet been regularized/absorbed, had shown that they were being discriminated. Many of the petitioners have crossed the upper age limit for entering into Government services except by way of regularisation. The appointment of fresh candidates against the posts held by them through the employment exchange would deprive the petitioners of their legitimate expectation of regularisation. 3.4. In a writ petition being W.P. (C) No. 220 of 2016 filed by the incumbent namely, Shri K. Ibopishak Singh, who was engaged as Chowkidar-cum-Sweeper in the Office of the Sub-Deputy Collector, Yairipok, this Court passed an order dated 25-07-2016 directing the authorities concerned to examine the case of the petitioner therein within a period of three months therefrom and till his case was considered, his back-wages be paid by the respondents. 4. 4. The writ petition is contested by the respondents by way of filing an affidavit-in-opposition on behalf of the respondents wherein it has been stated that the impugned letter was an internal communication for sponsoring candidates for twenty-three categories of posts and therefore, there was no violation of any fundamental rights. Shri K. Birjit Singh was appointed to the post of Skill Artisan (Bamboo & Cane) vide Government order dated 15-07-1998 issued pursuant to the order dated 05-02-1998 passed by the Hon'ble High Court in Civil Review No.17 of 1998 (Ref:- Civil Rule No.179 of 1995). Similarly, as regards the appointment of eight persons to the posts of Skill Artisan (PINA), it was done as per the Cabinet decision taken on 24-12-2009 in compliance with the order passed by the Hon'ble Gauhati High Court. The expectation of the petitioners has no legal sanction and not binding on the State Government and moreover, there is no rule by which the petitioners can claim for their regularisation without facing a DPC. To regularise or not to regularise an ad-hoc/casual employees is a matter of policy for which appropriate decision is to be taken by the State Government. The policies/schemes framed by the State Government are only for regularisation of Muster Roll/Casual/Work-charged in the Engineering Departments. There are no specific policy/rules for regularisation/absorption of the contract employees of the State Government and moreover, the petitioners were engaged without following due process/competition and in the process being undertaken by the State Government for appointment through open competition, the petitioners also can participate. 5. Under the provisions of Article 309 of the Constitution of India, the Union through the parliament or a State through its Legislature, is empowered to enact laws to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with its affairs. The proviso thereto mandates that until such laws being enacted by the Union or a State, the President or the Governor, as the case may be, is competent to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts. The proviso thereto mandates that until such laws being enacted by the Union or a State, the President or the Governor, as the case may be, is competent to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts. The enactment of laws by the Legislature in the State of Manipur for such purposes is very rare, almost nil and in exercise of power conferred by the said proviso, the recruitment rules in respect of various posts, have been framed by the State of Manipur wherein the methods of recruitment on regular basis and commonly prescribed, are - (a) direct recruitment; (b) by promotion and in respect of some posts, (c) by deputation/transfer. The regularisation of ad-hoc/contract/officiating/in-charge employees is not one of the methods of recruitment recognised in the recruitment rules but is considered to be a means by which one can join the service in the State of Manipur, may be, due to the misconception of the expression "the constitutional mandate". In the past, it was almost a common practice that the State Government resorted to appointment/engagement of employees on ad-hoc/daily wage/contract/officiating/in-charge etc. in large scale and if their services were not regularised after they had served for a number of years, it was considered by many persons that the "constitutional mandate" had been violated by the State Government. In other words, the non-regularisation of such employees by the State Government was considered to be violative of Article 14 and 21 of the Constitution of India. When such employees approached the Hon'ble High Court, they were directed to be regularised by it. It had been done so not in one or two cases but in hundreds of cases. In one of such cases, the then Hon'ble Gauhati High Court, Imphal Bench observed that non-regularisation of such an employee who had served for a long time without any break, would amount to contravening the constitutional mandate which was understood in this manner. As seen from various decisions rendered by the Hon'ble High Courts in the country, the expression "the constitutional mandate" appears to have been understood in the same line. 6. As seen from various decisions rendered by the Hon'ble High Courts in the country, the expression "the constitutional mandate" appears to have been understood in the same line. 6. In Secretary, State of Karnataka v. Uma Devi, (2006) 4 SCC 1 , the Constitution Bench of the Hon'ble Supreme Court was confronted with the issues relating to absorption, regularisation or permanent continuance of temporary, contractual, casual, daily wage or ad-hoc etc. in the context of the constitutional scheme and the power of the High Court under Article 226 of the Constitution of India to issue appropriate directions in respect thereof. As regards the constitutional scheme, the Hon'ble Supreme Court in para 2 of the judgment observed as under: "2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated as equals. Thus, any public employment has to be in terms of the constitutional scheme." In other words, it has further been observed by the Hon'ble Supreme Court that a regular process of recruitment or appointment has to be resorted to, when regular vacancies are to be filled and regular appointment must be the rule. It is the obligation on the part of the State Government to notify the vacancies that may arise in various departments. The appointments are to be made in accordance with the procedure prescribed in the rules framed under the Article 309 of the Constitution of India. Adherence to rule of equality in public employment is a basic feature of the Constitution and since the rule of law is the core of the Constitution, a court is disabled from passing an order upholding a violation of Article 14 read with Article 16 of the Constitution. Regular recruitment should be insisted upon and only in a contingency, ad-hoc appointment can be made in a permanent vacancy but the same ought to be followed soon by a regular recruitment and that appointment to non-available posts should not be taken note of for regularisation. The Hon'ble Supreme Court held: "33. Regular recruitment should be insisted upon and only in a contingency, ad-hoc appointment can be made in a permanent vacancy but the same ought to be followed soon by a regular recruitment and that appointment to non-available posts should not be taken note of for regularisation. The Hon'ble Supreme Court held: "33. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularisation. The cases directing regularisation have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment." "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. 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. 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 a 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 employees 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, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates. 45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. 45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain-not at arm's length-since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution. 46. Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularised since the decisions in Dharwad, Piara Singh, Jacob and Gujarat Agricultural University and the like, have given rise to an expectation in them that their services would also be regularised. The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. [See Lord Diplock in Council for Civil Services Union v. Minister of Civil Service, National Buildings Construction Corpn. [See Lord Diplock in Council for Civil Services Union v. Minister of Civil Service, National Buildings Construction Corpn. v. S. Raghunathan and Chanchal Goyal (Dr.) v. State of Rajasthan.] There is no case that any assurance was given by the Government or the department concerned while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after Dharwad decision. Though, there is a case that the State had made regularisations in the past of similarly situated employees, the fact remains that such regularisations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some cases by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularised in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularisation of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected. 47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. 48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled. 49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. 50. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. 50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality. 52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. 52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent." 7. The observations made by the Hon'ble Supreme Court as regards the constitutional scheme in matters relating to public employment can never be disputed at all as long as the decision rendered in Uma Devi case is not overruled by a larger Constitution Bench of the Hon'ble Supreme Court and therefore, this court is bound by it. But all that Shri B.P. Sahu, the learned Senior Advocate appearing for the petitioners has submitted, is that the cases of the petitioners would come under the exception carved out by the Hon'ble Supreme Court in Uma Devi case, for which he has placed reliance in the decisions rendered by the Hon'ble Supreme Court and in particular, in Amarkant Rai v. State of Bihar & ors., (2015) 8 SCC 265 and Prem Ram v. Managing Director, Uttarkhand Pey Jal and Nirman Nigam, Dehradun & ors., (2015) 11 SCC 255 . In Amarkant Rai case, the appellant was appointed temporarily in class IV post of night guard, on daily wages vide order dated 04-06-1983 issued by the Principal, R.B. College affiliated to Lalit Narayan Mithila University which took a decision vide its letter dated 04-07-1985 to regularise the persons who worked for more than 240 days. Thereafter, the Addl. Commissioner-cum-Secretary, Bihar passed a settlement dated 11-07-1989 which was forwarded to the Universities, stating that the services of employees working in educational institutions as per staff pattern, can be regularised with a condition that new appointments against the vacancies present and future should not at all be done. The Principal, R.B. College requested the Registrar of the University to regularise the services of the appellant vide letter dated 07-10-1993 who passed an order of termination dated 01-03-2001 but in a writ petition filed by similarly situated persons, the Registrar in compliance with the direction issued by the High Court, allowed all daily wagers to resume their work vide letter 22-12-2001 with effect from 03-01-2002 and the appellant was also allowed to join his duties. The Hon'ble Supreme Court observed that the High Court ought to have examined the case of the appellant in the light of the various communications issued by the State Government including the circular, by which the appellant is eligible for consideration for regularisation. The Hon'ble Supreme Court was also of the view that the exception caved out in para 53 of Uma Devi case is applicable to the facts of the case. The objective behind the exception carved out was to permit regularisation of such appointments, which are irregular but not illegal and to ensure security of employment of those persons who had served the State Government and their instrumentalities for more than years. The Hon'ble Supreme Court referred to its earlier decision wherein the difference between the irregular and illegal appointments has been explained. Allowing the appeal, the Supreme Court directed the authorities to notionally regularise the services of the appellant retrospectively w.e.f. 03-01-2002 or the date on which the post became vacant whichever is later and without monitory benefit for the above period. The appellant shall be entitled to monitory benefit from 01-01-2010. The period from 03-01-2002 shall be taken for continuity of service and pensionary benefits. The relevant para 12, 13 are as under: "12. The appellant shall be entitled to monitory benefit from 01-01-2010. The period from 03-01-2002 shall be taken for continuity of service and pensionary benefits. The relevant para 12, 13 are as under: "12. Applying the ratio of Umadevi case, this Court in Nihal Singh v. State of Punjab directed the absorption of the Special Police Officers in the services of the State of Punjab holding as under: (Nihal Singh case, SCC pp. 79-80, paras 35-36) "35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State. 36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is-the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks." 13. Apparently no such demand has ever been made by the State. The result is-the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks." 13. In our view, the exception carved out in para 53 of Umadevi is applicable to the facts of the present case. There is no material placed on record by the respondents that the appellant has been lacking any qualification or bore any blemish record during his employment for over two decades. It is pertinent to note that services of similarly situated persons on daily wages for regularisation viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of clerk was regularised w.e.f. 1987. The appellant although initially working against unsanctioned post, the appellant was working continuously since 3-1-2002 against sanctioned post. Since there is no material placed on record regarding the details whether any other night guard was appointed against the sanctioned post, in the facts and circumstances of the case, we are inclined to award monetary benefits to be paid from 1-1-2010." In Prem Ram case, the appellant was appointed as a daily wager in the erstwhile Uttar Pradesh Pey Jal and Nirman Nigam in the year 1988. Nine years later, his services were terminated in February 1997. The termination was set aside by the Labour Court with a direction to reinstate the appellant with 50% back wages and continuity of service. The respondent Jal Nigam which is the successor in interest of the erstwhile UP Pey Jal and Nirman Nigam filed a writ petition against the award and succeeded in part as regards the back wages. In the year 2008, the appellant filed a writ petition praying for a mandamus to direct the respondents to regularise his service w.e.f. 01-07-2003 on the post of Jeep Driver. The appellant's case was that other daily wagers who were junior to him and appointed after the year 1988 having been regularised in the service, the appellant could not be deprived of the benefit. The appellant's case was that other daily wagers who were junior to him and appointed after the year 1988 having been regularised in the service, the appellant could not be deprived of the benefit. The appellant contended that the termination having been set aside by the Labour Court which was confirmed by the High Court with continuity of his service, there was no reason for denial of benefits that would have flowed to him but for the termination especially when such benefits were extended to other similarly situated contemporaries and juniors of the appellant. The learned Single Judge dismissed the writ petition on the authority of the decision in Uma Devi case with the direction that the appellant may move a representation before the authorities in the light of para 53 of the decision in Uma Devi case. In the appeal, the Hon'ble High Court held that since there was no scheme for regularisation of daily wagers and those named by the appellant in the writ petition had been regularised by the UP Pey Jal and Nirman Nigam at a time when the Uttarkhand Pey Jal and Nirman Nigam was not in existence, nothing further could be done in the matter nor any relief granted to the appellant. The Hon'ble Supreme Court allowed the appeal holding that the Government of Uttarkhand appeared to have framed the Regularisation Rules, 2011 for regularisation of daily wagers and temporary employees who had been appointed on or before 01-11-2011 and had completed ten years of continuous service by that date and that the said rules were adopted by the Board of respondent in terms of the resolution passed in its 12th meeting and the approval of the State Government was awaiting. Further, the Hon'ble Supreme Court, treating the case of the daily wagers and work-charged employees on the same footing, held that five persons named by the appellant appearing at Sl. No. 78 to 82 of the list of juniors have been regularised in service. The relevant para 10 is as under: "10. If that be so, there is no denying the fact that the persons who were junior to the appellant, having been engaged much later than him, steal a march over him in terms of regularisation in service while the appellant remained embroiled in litigation over what was eventually found to be an illegal termination of his service. If that be so, there is no denying the fact that the persons who were junior to the appellant, having been engaged much later than him, steal a march over him in terms of regularisation in service while the appellant remained embroiled in litigation over what was eventually found to be an illegal termination of his service. It is true that the appellant has already superannuated. That does not, however, make any difference. What is important is that the appellant had been appointed as early as in the year 1988 and had, by the time the decision of this Court in Umadevi case was pronounced, already completed more than 10 years' service. The Government has formulated rules for regularisation of such daily wagers, no matter the same are the subject-matter of a challenge before the High Court. What is noteworthy is that neither the State Government nor the Jal Nigam has resented the idea of regularisation of those who have served for over a decade. The rules providing for regularisation are a sufficient enough indication of that fact. We do not, therefore, see any impediment in directing regularisation of the services of the appellant on the analogy of his juniors with effect from the date his juniors were regularised and for the release of all retiral benefits in his favour on that basis by treating him to be in continuous service till the date of his superannuation. We make it clear that this direction will not entitle the appellant to claim any amount towards arrears of salary based on such regularisation." 8. The short question that arises for consideration by this court is as to whether the exception carved out in the Uma Devi is applicable to the facts of the present case. While carving out an exception by the Hon'ble Supreme Court, it has been clarified that the constitutional scheme as aforesaid hereinabove will not apply to irregular appointment for which the State Government or its instrumentalities should take appropriate steps to regularize them as one-time measure. The para 53 which is relevant for the present case, is reproduced herein below: "53. One aspect needs to be clarified. The para 53 which is relevant for the present case, is reproduced herein 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 recruitments 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 sub judice, 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." 9. What does the expression "irregular appointment" mean? In Uma Devi case, the Hon'ble Supreme Court, while carving out the exception, has not explained about it at all. However, in Amarkant Rai case (supra), the Hon'ble Supreme Court referred to its earlier decision in State of Karnataka v. M.L. Kesari case wherein it has enumerated the conditions by observing that in case the said conditions are fulfilled, the appointment will be considered to be irregular and not illegal. The para 11 thereof is as under: "11. Elaborating upon the principles laid down in Umadevi case and explaining the difference between irregular and illegal appointments in State of Karnataka v. M.L. Kesari, this Court held as under: (M.L. Kesari case, SCC p. 250, para 7) "7. The para 11 thereof is as under: "11. Elaborating upon the principles laid down in Umadevi case and explaining the difference between irregular and illegal appointments in State of Karnataka v. M.L. Kesari, this Court held as under: (M.L. Kesari case, SCC p. 250, para 7) "7. It is evident from the above that there is an exception to the general principles against 'regularisation' enunciated in Umadevi, if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular." 10. It is the case of the petitioners that they were engaged on casual basis and their engagements were extended from time to time and their wages were also revised from time to time. But it is not clear as to whether they have been engaged against the regular vacancies or the sanctioned posts. It is also not clear as to whether they were eligible for appointment against the posts held by them as per the relevant recruitment rules applicable to them. There is no any material on record to verify it and in the absence of such material, it is not possible for this court to examine whether the conditions as enumerated in State of Karnataka v. M.L. Kesari case, have been fulfilled by the petitioners or not. It has also been submitted by the learned counsel appearing for the petitioners that since persons similarly situated have been regularised, similar treatment be meted to the petitioners as well. It has also been submitted by the learned counsel appearing for the petitioners that since persons similarly situated have been regularised, similar treatment be meted to the petitioners as well. In this regard also, there is no material on record to find out if the petitioners are really similarly situated with those persons mentioned in the petition except an averment in the petition that the petitioners are similarly situated with them. The facts of the Amarkant Rai case and that of Prem Ram case are slightly different from that of the present case. In Amarkant Rai case, there was decision taken by the College and the University for regularisation of the appellant and as is evident from the various communications issued by the State Government as well as the documents which includes a settlement dated 26-04-1989 amongst the University, Employee's Union and the State Government that the services of the employees working in educational institutions on the basis of prescribed staffing pattern are to be regularised. Moreover, one Yatindra Kumar Mishra whose service was similarly situated with the appellant, was regularised w.e.f 1987. In that context, the Hon'ble Supreme Court allowed the appeal. In Prem Ram case also, the Hon'ble Supreme Court while allowing the appeal, took note of two points-one, the Regularisation Rules, 2011 for regularisation of daily wagers and temporary employees who had been appointed on or before 01-11-2011, had been framed by the State Government and two, persons who were appointed on dates subsequent to the date of appointment of the appellant, had been regularised. There is no such rule for regularisation in the present case nor is there any decision taken by the State Government for the regularisation of the petitioners. There is one aspect which needs to be considered and as has been stated in the writ petition, the State Government makes policy decisions, from time to time, for regularisation of ad-hoc/officiating appointments by issuing various orders/Office Memoranda in the year 1986, 1991-1992, 2013 etc. in respect of various Departments subject to the conditions mentioned therein. There is one aspect which needs to be considered and as has been stated in the writ petition, the State Government makes policy decisions, from time to time, for regularisation of ad-hoc/officiating appointments by issuing various orders/Office Memoranda in the year 1986, 1991-1992, 2013 etc. in respect of various Departments subject to the conditions mentioned therein. If the petitioners fulfil such conditions, they could have been regularised by the State Government but the fact that they had not been regularised, shows that they did not fulfil the conditions and moreover, if they were really aggrieved by their non-regularisation in terms of the said policy decisions, they could have approached the appropriate forum for their grievances at the relevant time. They appear to have not done so. Moreover, assuming for the sake of argument that the exception would apply to the cases of the petitioners, it may be noted that the process for regularisation of irregular appointments ought to have been set in motion within six months from the date of pronouncement of the judgment in Uma Devi case. The judgment was delivered on 10-04-2006 and it appears that the State Government took no appropriate steps towards it nor did the petitioners have any grievance thereto for the reason that they did approach this court only after about a decade from the said date. 11. The judgment was delivered on 10-04-2006 and it appears that the State Government took no appropriate steps towards it nor did the petitioners have any grievance thereto for the reason that they did approach this court only after about a decade from the said date. 11. In view of the above, the instant writ petition is disposed of with the following directions: (a) The respondents and in particular, the respondent No. 2 shall verify as to whether the petitioners were engaged against the sanctioned posts; (b) The respondents and in particular, the respondent No. 2 shall verify as to whether the petitioners were eligible for appointment as per the then existing recruitment rules at the time when they were initially engaged against the posts being held by them; (c) The respondents and in particular, the respondent No. 2 shall verify as to whether the petitioners have served, by now, for more than ten years without the benefit or protection of the interim order of any court or tribunal; (d) The respondents and in particular, the respondent No. 2 shall verify as to whether the petitioners are similarly situated with Shri K. Birjit Singh who has been appointed as Skill Artisan (Bamboo & Cane) vide order dated 03-03-1978 or with the said eight persons who have been appointed to the posts of Demonstrator/Skill Artisan (PINA) vide order dated 25-06-2010 issued by the Principal Secretary (Commerce & Industries), Government of Manipur. 12. The aforesaid exercise shall be done within a period of thirty days from the date of receipt of a copy of this judgment and order and in case the answers to the directions (a) to (c) above are in the affirmative, the petitioners shall be regularised by the State Government within two months thereafter or alternatively, in case the answer to direction (d) above is in the affirmative, the petitioners shall be regularised by the State Government within two months thereafter.