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2021 DIGILAW 34 (MAN)

Meinam Sujata Devi v. State of Manipur

2021-08-16

KH.NOBIN SINGH

body2021
JUDGMENT [1] Heard Shri Ng. Jotindra Luwang, learned counsel appearing for the petitioner and Shri Athouba Khaidem, learned Government Advocate appearing for the respondents. [2] The subject matter in issue relates to the claim of the petitioners for regularization of their ad-hoc services as the Lower Division Clerks in the Department of Command Area Development Authority, Government of Manipur. [3.1] Facts and circumstances as narrated in the writ petition, in short, are that the petitioners were initially appointed as the Lower Division Clerks (for short, LDCs) on ad-hoc basis for a period of three months vide order dated 01-07-1999 issued by the Addl. Chief Engineer (CADA), Manipur and their ad-hoc services were extended from time to time. In the meantime, the petitioners approached the Hon’ble Gauhati High Court, Imphal Bench by way of a writ petition being WP(C) No.872 of 2000 which was disposed on 17-07-2000 directing the authority to fill up the posts held by them on regular basis soon after the ban was lifted and to allow them to continue in their services till then. Thereafter, questioning the termination/ downsizing the posts held by the petitioners, they along with some other approached the Hon’ble Gauhati High Court, Imphal bench by way of a writ petition being WP(C) No.420 of 2001 which was disposed on 29-03-2001, the relevant portion of which read as under: “Already there is an order passed on 8/8/2000 passed by this Court in W.P(C) No.1001 of 2000 and Annexure-A/6 (colly) whereby these petitioners were allowed to continue in service till the posts are filled up on regular basis within a period of one month from the date of lifting the ban. It is clear that these petitioners shall not be thrown out from their services. Accordingly, the impugned Notification dated 19/3/2001 (Annexure-A/7) shall stand suspended. The petitioners shall be allowed to continue in their services and they shall be paid their salaries and allowances etc. in accordance with law.” The services of the petitioners were continued to be utilized by the authority and in order to reply a question in the Assembly, the Addl. Chief Engineer (CADA), Manipur addressed a letter dated 30-07- 2003 to the Under Secretary (DP), Government of Manipur informing that the posts held by them were not affected by the downsizing. in accordance with law.” The services of the petitioners were continued to be utilized by the authority and in order to reply a question in the Assembly, the Addl. Chief Engineer (CADA), Manipur addressed a letter dated 30-07- 2003 to the Under Secretary (DP), Government of Manipur informing that the posts held by them were not affected by the downsizing. [3.2] In terms of the letters dated 29-09-2005 and dated 25-10-2005 issued by the DP, Government of Manipur, a utilization certificate dated 18-05-2006 was issued by the Account Officer of the Command Area Development Department, Manipur certifying that in compliance with the Court's order dated 29-03-2001, the staff of the department including the petitioners, were being utilized. In the meanwhile, a requisition notice dated 10-11-2005 was issued for filling up the four posts of LDC in CADA, Manipur. The petitioners along with two others jointly filed a writ petition being WP(C) No.679 of 2006 challenging it and also for considering their cases for regular appointment. The Hon’ble High Court disposed of it on 11-08-2006 directing that the State Respondents should take a conscious decision on their representation before finalizing the process for filing up the posts. Instead of considering their cases for regular appointment, a letter dated 11-04-2007 was sent by the Joint Secretary (CADA), Government of Manipur to the Addl. Chief Engineering (CADA), Manipur conveying the approval of the Government for discontinuation/ dispensing with the ad-hoc services of the petitioners as LDCs immediately. Contrary slightly to the aforesaid convey letter, the ad-hoc services of the petitioners as LDCs were discontinued retrospectively with effect from 18-12-2006 vide order dated 12-04-2007 of the Additional Chief Engineer, CADA, Manipur, followed by an order dated 11-09-2008 extending their past ad-hoc services till 18-12-2006. [3.3] The petitioner No.1 approached the Hon’ble High Court by way of a writ petition being WP(C) No.339 of 2009 challenging the termination order dated 12-04-2007 in respect of her ad-hoc service. The Hon'ble High Court disposed of the said writ petition on 16-03-2016 with the direction to the respondent No.2 and 3 to consider her representation and issue an appropriate speaking order. [3.4] In the meantime, an office memorandum dated 03-10-2013 was issued by the Deputy Secretary (DP), Government of Manipur regarding the Government policy on ad-hoc regularization in respect of 288 direct recruit ad-hoc employees of various Departments/ offices. [3.4] In the meantime, an office memorandum dated 03-10-2013 was issued by the Deputy Secretary (DP), Government of Manipur regarding the Government policy on ad-hoc regularization in respect of 288 direct recruit ad-hoc employees of various Departments/ offices. Paragraph 9 thereof states that after regularization of the 288 ad-hoc employees, it will be deemed that there are no ad-hoc employees in the State of Manipur except for the Education(S) Department, which is separately under consideration. In terms of the aforesaid office memorandum dated 03-10-2013, the ad-hoc services of some similarly situated persons, whose ad-hoc services were extended and protected along with the petitioners, were regularized vide order dated 21-12-2013 issued by the Under Secretary (CADA), Government of Manipur. But the cases of the petitioners were singled out without assigning any reason. In other words, the concerned authorities had regularized the services of some similarly situated persons who were working as Field Assistants in the Department and whose ad-hoc services were extended and protected along with the petitioners by a common order. Similarly, some ad-hoc employees of the Department of Horticulture & Soil Conservation, Manipur who were discontinued/ terminated from their service in the year 2007 and whose termination orders were also revoked with immediate effect vide order dated 04-05-2011, were also regularized vide order dated 20-11-2013 in pursuance of the Office Memorandum dated 03-10-2013. [3.5] A letter dated 05-07-2017 was addressed by the Additional Chief Engineer of CADA, Manipur to the Principal Secretary (CADA), Government of Manipur furnishing the required information showing the vacancy positions for direct recruitment in which the post of LDC was included. The petitioners submitted a representation dated 30-07-2018 to the concerned authorities requesting them to consider their cases for regularization of their ad-hoc services as LDCs in the Department of CADA, Manipur against the available vacant posts as had been done in case of similarly situated persons by reviewing/ revoking/ cancelling the order dated 12-04-2007. However, no action was taken by the concerned authorities. Hence, the petitioners jointly approached the Hon'ble High Court by filing a writ petition being WP(C) No.728 of 2018 which was disposed of on 08.08.2018 directing the respondent No.2 to consider and dispose of the representation dated 30-07-2018 submitted by the petitioners within a period of one month from the receipt of the order with a speaking order. Thereafter, an order 25-09-2018 was issued by the Addl. Thereafter, an order 25-09-2018 was issued by the Addl. Chief Engineer, CADA, Manipur rejecting the prayer of the petitioners for regularization of their services without assigning proper reasons. [3.6] Surprisingly, a Notification dated 21-11-2019 was issued by the Addl. Chief Engineer, CADA, Manipur inviting applications from amongst the intending candidates for appointment in the department of Command Area Development Authority, Manipur to various post including the post of LDC. The said Notification dated 21-11-2019 relating to LDC posts was issued without considering the cases of the petitioners as had been done in the case of similarly situated persons whose ad-hoc services were protected and extended in the same manner under the same department. Having no alternative, the petitioners again approached the Hon'ble High Court by filing a writ petition being WP(C) No.1069 of 2019 which was disposed of on 20-02- 2020 directing the respondent No.1 to consider the representation submitted by the petitioners within a period of 45 days from the date of receipt of a copy of the Court's order by a speaking order and in accordance with law. However, an order dated 13-03-2020 was issued by the Addl. Chief Secretary, CADA, Manipur rejecting the prayer of the petitioners for regularization of their services in an injudicious manner. Another writ petition being WP(C) No. 629 of 2020 was filed praying for regularization of their services against the available vacant posts but the same was disposed of on 26-08-2020 with a liberty to file a fresh petition. [4.1] An affidavit-in-opposition on behalf of the respondent No.1 has been filed stating that the ad-hoc services of the petitioners were discontinued vide order dated 12-04-2007 with effect from 18-12-2006 issued by the Additional Chief Engineer, Department of Command Area Development Authority, Manipur on the basis of the approval of the Government being conveyed pursuant to the OM dated 24-09-2005 of the Department of Personnel, Government of Manipur. It has also been stated that the Department of CADA is not the cadre controlling authority of the referred ad-hoc employees of the Department of Horticulture & Soil Conservation, Manipur. Moreover, the regularisation of ad-hoc services of the present petitioners was rejected as per the direction of the Hon'ble Court's order dated 24-08-2010 passed in WP(C) No. 510 of 2007 and order dated 11-08-2006 passed in WP(C) No. 679 of 2006. Moreover, the regularisation of ad-hoc services of the present petitioners was rejected as per the direction of the Hon'ble Court's order dated 24-08-2010 passed in WP(C) No. 510 of 2007 and order dated 11-08-2006 passed in WP(C) No. 679 of 2006. It was observed in the Court’s order that in case any vacancy in respect of the post of LDC was advertised for recruitment in the CADA, the petitioner should be allowed to participate in the selection process by relaxing the age. The order dated 13-03-2020 of the Additional Chief Secretary (CAD), Government of Manipur was issued in compliance with the Hon'ble Court's order dated 20-02-2020 passed in WP(C) No.1069 of 2019. [4.2] In the affidavit-in-opposition on behalf of the respondent No.3, it has been denied that the ad-hoc services of some similarly situated persons were regularized and therefore, there was no discrimination against the petitioners by the State respondents. It has further been denied that the prayer of the petitioners for the regularization of their service was rejected without assigning any proper reason. A speaking order was issued by the Additional Chief Engineer, Department of Command Area Development Authority on 25-09-2018. The Hon’ble Gauhati High Court passed the order dated 24-08-2010 in WP(C) No. 510 of 2007 whereby the Hon'ble Court observed that in case any vacancy to the post of LDC was advertised for recruitment in the CADA, the petitioner should be allowed to participate in the selection process by relaxing her age. The petitioners again approached the Hon’ble High Court by filing a writ petition being WP(C) No.1069/ 2019 which was disposed on 20-02-2020 by directing the Respondent No.1 to consider the representation submitted by the petitioner by issuing a speaking order. In compliance with the order of the Hon'ble High Court, the Additional Chief Secretary (CADA), Manipur rejected the representation by speaking order dated 13-03-2020 stating that the petitioners might be allowed to participate in the selection process by relaxing their age within the permissible regulation of the Government. [5] In their rejoinder affidavit, the petitioners reiterated the averments made in the petition. It has been stated that the proper reasons were not assigned in the pleading as well as in the orders dated 25-09-2018 and 13-03-2020 for having singled out them. [5] In their rejoinder affidavit, the petitioners reiterated the averments made in the petition. It has been stated that the proper reasons were not assigned in the pleading as well as in the orders dated 25-09-2018 and 13-03-2020 for having singled out them. The termination order dated 12- 04-2007 was issued with retrospective effect from 18-12-2006 which was contrary to the approval of the Government being conveyed and when WP(C) 420 of 2001 was disposed of on 12-09 2008, nothing was mentioned therein for the termination of the petitioners’ ad-hoc services. Moreover, there was also an order dated 16-03-2016 passed in WP(C) No.339 of 2009 directing the respondents to consider the representation of the petitioner regarding the termination order. Unequal treatment amongst the equal persons is not permissible and the benefit extended to the similarly situated persons ought to have been granted to them as the vacant posts were available as is evident from the Notification dated 21-11-2019. [6] During the course of hearing, it has been vehemently submitted by Shri Ng. Jotindra Luwang, learned counsel appearing for the petitioners that the ad-hoc services of some similarly situated persons, whose service were extended and protected by the same order, were regularized vide order dated 21-12-2013 issued by the Under Secretary (CADA), Government of Manipur. Similarly, some ad-hoc employees of the Department of Horticulture & Soil Conservation, Manipur who were discontinued/ terminated from their service, were also regularized by the concerned authorities after revoking their termination order. The petitioners were denied such a benefit of regularisation which was highly unreasonable and discriminatory. It has further been submitted by him that it is well settled that unequal treatment amongst the equal persons, is not permissible and the denial of such benefits to the petitioners is unreasonable and discriminatory being violative of Article 14 of the Constitution of India. In support of his contention, he has relied upon the decision rendered by the Hon’ble Supreme Court in Indra Sawhney & ors v. Union of India & ors, 1992 Supp (3) SCC 217. [7] Article 14 provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The basic principle underlying Article 14 is that the law must operate equally on all persons under like circumstances. In other words, equality is the basic feature of the Constitution. [7] Article 14 provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The basic principle underlying Article 14 is that the law must operate equally on all persons under like circumstances. In other words, equality is the basic feature of the Constitution. Equal protection means the right to equal treatment in similar circumstances. The content of Article 14 was originally interpreted by the Hon’ble Supreme Court as a concept of equality confined to the aspects of discrimination and classification but it has been expanded to comprehend the doctrine of promissory, estoppel, non-arbitrariness, compliance with rules of natural justice etc. [8.1] It is true that if the contention of the learned counsel appearing for the petitioners is found to be correct, the inaction on the part of the State respondents will be rendered unreasonable & discriminatory and consequently, it will be hit by Article 14 of the Constitution of India. Therefore, the short question that arises for consideration by this Court, is as to whether the petitioners were similarly situated with the Field Assistants. Admittedly, the petitioners were initially appointed as LDCs on ad-hoc basis for a period of three months vide order dated 01-07- 1999 issued by the Additional Chief Engineer (CADA), Manipur and their ad-hoc services were extended from time to time. The services of the petitioners were allowed to be continued on account of the orders passed by the Hon’ble High Court. But on the strength of the letter dated 11-04-2007 of the Joint Secretary (CADA), Government of Manipur addressed to the Addl. Chief Engineering (CADA), Manipur conveying the approval of the Government for discontinuation/ dispensing with the ad-hoc services of the petitioners as LDCs immediately, the ad-hoc services of the petitioners as LDCs were discontinued retrospectively with effect from 18-12-2006 vide order dated 12-04-2007 of the Additional Chief Engineer, CADA, Manipur. This order dated 12-04-2007 is undoubtedly common for both the LDCs and the Field Assistants in the Department of CADA. But the Field Assistants had been regularized vide order dated 21-12-2013 on the recommendation of a DPC pursuant to and in terms of the OM dated 03-10-2013. This order dated 12-04-2007 is undoubtedly common for both the LDCs and the Field Assistants in the Department of CADA. But the Field Assistants had been regularized vide order dated 21-12-2013 on the recommendation of a DPC pursuant to and in terms of the OM dated 03-10-2013. However, no materials have been placed on record either by the petitioners or the State respondents to show the details about the Field Assistants as to how they came to be initially appointed on ad-hoc basis. Were they appointed on ad-hoc basis against the clear vacant posts or not ? Were the cases of the Field Assistants covered by the provisions of the OM dated 03-10-2013 or not ? These are some of the aspects which need to be examined by this Court to find out whether the Field Assistants were similarly situated with the petitioners. Only on the basis of the order dated 12-04-2007, it cannot be said that they were similarly situated with the petitioners. It may be noted that the order dated 21-12-2013 specifically states that the Field Assistants were regularized on the recommendation of a DPC and that too, pursuant to the OM dated 03- 10-2013. Therefore, the Field assistants appear to be found by the DPC to have fulfilled all the conditions laid down in the OM dated 03-10-2013. If that be the case, the petitioners cannot be said to be similarly situated with the Field Assistants. Similar is the case with the Assistant Agriculture Officers/ equivalent who were regularized vide order dated 20-11-2013. On perusal of the OM dated 03-10-2013, it is seen that some of the conditions which ought to be fulfilled for purpose of regularisation, were that one would have served on ad-hoc since the last 15 years; that clear vacant posts must have been available for regularization and that one must have served on ad-hoc basis continuously from 23-03-2006. The said OM dated 03-10-2013 is nothing but a policy decision taken by the State Government for regularization of ad-hoc services as a one-time measure subject to the conditions mentioned therein. There is no material on record to show that the OM dated 03-10-2013 has ever been withdrawn by the State Government or it has been quashed and set aside by any competent Court. There is no material on record to show that the OM dated 03-10-2013 has ever been withdrawn by the State Government or it has been quashed and set aside by any competent Court. So far as the petitioners are concerned, they appear to have not fulfilled, at least, two of the said conditions, in the sense that they did not complete 15 years, when the OM dated 03-10-2013 was issued by the DP, Government of Manipur and that they did not have, formally, continuous ad-hoc services since 23-03-2006. These are some of the circumstances which appear to be the reasons as to why the ad-hoc services of the petitioners were not regularized by the State Government. [8.2] On top of that, the stand of the State respondents is that the petitioners were not similarly situated with the Field Assistants but were similarly situated with the petitioner who filed the writ petition being WP(C) No.510 of 2007 questioning the validity and correctness of the Government order dated 12-04-2007 which was dismissed by the Hon’ble High Court on 24-08-2010. Thus, this Government order dated 12-04-2007 was not interfered with by the Hon’ble High Court at all. Moreover, there is no material on record to show that the Court’s order dated 24-08-2010 has been quashed and set aside by the appellate Court. From the narration of facts by the High Court in the said writ petition, it is seen that the present petitioners were similarly situated with the petitioner therein for the reason that all of them were initially appointed together as LDCs on ad-hoc basis by the same order in the Department of CADA. The Hon’ble High Court, while dismissing the writ petition, observed that the petitioner therein did not participate in the selection process despite having given ample opportunity to appear and compete in the selection process along with other eligible candidates. The selection process was initiated in terms of the order dated 17-07- 2000 passed by the Hon’ble High Court in WP(C) No.872 of 2000, filed by her, by which it was directed that the petitioner therein would be allowed to continue in the post held by her on ad-hoc basis till the post was filled up on regular basis. The selection process was initiated in terms of the order dated 17-07- 2000 passed by the Hon’ble High Court in WP(C) No.872 of 2000, filed by her, by which it was directed that the petitioner therein would be allowed to continue in the post held by her on ad-hoc basis till the post was filled up on regular basis. It may be noted that while dismissing the writ petition, the Hon’ble High Court had relied upon the law laid down by the Hon’ble Supreme Court in Uma Devis’s case reported in (2006) 4 SCC 1 . Even though the writ petition was dismissed, the Hon’ble High Court observed that in respect of future appointment in the Department of CADA, the petitioner therein should be allowed to participate in the selection process by relaxing her age, as she had rendered long years of service on ad-hoc basis in the Department of CADA. Since the present petitioners were not parties in the said writ petition, the order dated 24-08-2010 would technically have no application to their cases. But the fact remains that the present petitioners and the petitioner therein are similarly situated as aforesaid and therefore, the present petitioners cannot be granted any relief other than what had been granted to the petitioner therein by the High Court. [9] There is one aspect which also needs to be considered by this Court at this juncture. In view of the High Court’s order dated 29-03- 2001 passed in WP(C) No.420 of 2001, the State Government ought not to have issued the order dated 12-04-2007 discontinuing the ad-hoc services of the petitioners because it was directly contrary to the Court’s order. But in fact, it had been issued by the State Government. Being aggrieved by the Government order dated 12-04-2007, one of the petitioners filed a writ petition being WP(C) No.339 of 2009 questioning it. On 16-03-2016 when the said writ petition came up before the High Court for consideration, the learned counsel appearing for the petitioner therein submitted that since the similarly situated persons had been regularised, her case ought to be considered and that the petitioner would be satisfied, if a direction was issued to the State respondents for consideration of her case. On 16-03-2016 when the said writ petition came up before the High Court for consideration, the learned counsel appearing for the petitioner therein submitted that since the similarly situated persons had been regularised, her case ought to be considered and that the petitioner would be satisfied, if a direction was issued to the State respondents for consideration of her case. In view of the submission of the learned counsel, this Court accordingly disposed of the writ petition with the direction that the State respondents should consider her case and issue a speaking order in respect thereof. The petitioner therein remained satisfied with the said Court’s order with the result that the Government order dated 12-04-2007 remained undisturbed, in the sense that it continued to remain in operation. In other words, the petitioner therein did not press the writ petition further for quashing the Government order dated 12-04-2007. The Court’s order dated 24-08-2010 passed in WP(C) No.510 of 2007 appears to have not been brought to the notice of this Court, when WP(C) No.339 of 2009 was considered on 16-03- 2016 for disposal. It may be noted that while disposing of the writ petition being WP(C) No.339 of 2009, no liberty was granted to the petitioner therein who is the petitioner No.1 herein by this Court to challenge the Government order dated 12-04-2007 again, if necessary. Therefore, the challenge to the validity and correctness of the Government order dated 12-04-2007 in the present writ petition and that too, after a lapse of more than thirteen years, is not maintainable, as it will be hit by the doctrine of laches. Moreover, in the Court’s order dated 24-08-2010 passed in WP(C) No.510 of 2007, it was categorically observed that the posts had been filled up on regular basis on 18-12- 2006 and that the petitioner therein who was similarly situated with the present petitioners, did not participate in the selection process with the result that she could not continue any further in her ad-hoc service. The present petitioners, too, appear to have not participated in the said selection process for filling up the posts on regular basis. The present petitioners, too, appear to have not participated in the said selection process for filling up the posts on regular basis. In view of the law laid down in Uma Devi’s case (supra), which was relied by the Hon’ble High Court while dismissing the WP(C) No.510 of 2007, the regularisation of ad-hoc service cannot be claimed as of right and it is possible only in terms of the said law laid down therein. [10] There can be no dispute at all as regards the law laid down by the Hon’ble Supreme Court in Indra Sawhney case (supra) which is one of the landmark judgments of the Hon’ble Supreme Court. But since the facts of that case are not identical with that of the present case, the law laid down therein will have no application to the facts of the present case. [11] In view of the above and for the reasons stated hereinabove, this Court is of the opinion that the instant writ petition is devoid of any merit and is accordingly dismissed with no order as to costs.