Manipur High Court
2 vs The Union Of India Through The Secretary on 23 May, 2022
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
1
JOHN Digitally signed
by JOHN TELEN
KOM
TELEN Date:
2022.06.10
IN THE HIGH COURT OF MANIPUR
KOM 10:11:37
+05'30'
AT IMPHAL
WP(C)No.717 of 2021
1. Suchitra Wangkhem, aged about 36 years, W/o Kh. Saikya
Singh, resident of Kha Potsangbam Maning Leikai, PO & PS
Bishnupur, Manipur-795126.
2. Lourembam Somokanta Singh, aged about 32 years, S/o L.
Amuba Singh, resident of Kyamgei Mamang Leikai, PO
Canchipur, P.S. Singjamei, District Imphal West, Manipur-
795003.
3. Smt. Luwangthem Jennifer, aged about 36 years, W/o
Thoudam Shyamo Singh, resident of Khagempalli Panthak, PO
& PS Imphal, District Imphal West, Manipur-795001.
4. Smt. Khundrakpam Narmada Devi, aged about 41 years, W/o
Yanglem Roshanlal Singh, resident of Top Awang Leikai,
Tinsid Road, Khurai Bazar, PO & PS Porompat, Imphal East,
District, Manipur-795005.
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5. Smt. Kshetrimayum Merina Devi, aged about 36 years, W/o
Loitongbam Herojit Singh, resident of Kwakeithel Konjeng
Leikai, PO Imphal, P.S. Singjamei, Manipur-795001.
6. Smt. Paonam Shantibala Devi, aged about 36 years, W/o
Tongbram Lenin Singh, resident of Ngangkahlawai Mayai
Leikai, PO & PS Moirang, District Bishnupur, Manipur-795133.
7. Smt. Sujata Tongbram, aged about 36 years, W/o Haorongbam
Anand Singh, resident of Sagolband Sayang Pukhri Mapal, PO
& PS Imphal, District Imphal West, Manipur-795001.
8. Shri. Yumnam Shantikumar Singh, aged about 35 years, S/o
Y. Shamungou Singh, resident of Yumnam Huidrom Khunyai
Lekai, PO & PS Wangoi, Imphal West, Manipur-795009.
....... Petitioners
- Versus -
1. The Union of India through the Secretary, Ministry of
Education, Government of India, Shastri Bhawan, New Delhi-
110001.
WP(C) No. 717 of 2021 Page 2
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2. The National Institute of Technology, Manipur through its
Registrar, Langol, PO & PS Lamphel, Imphal West District,
Manipur-795004.
3. The Director, National Institute of Technology, Manipur through
its Registrar, Langol, PO & PS Lamphel, Imphal West District,
Manipur-795004.
.... Respondents
BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN For the Petitioner : Mr. Kh. Tarunkumar, Adv.
For the Respondents : Mr. S. Samarjit SPC.
Date of order : 23.05.2022
JUDGMENT & ORDER
(0ral)
[1] Heard Mr.Kh. Tarunkumar, learned senior counsel for the
petitioners; Mr.Salam Samarjeet, learned counsel for the first respondent and Mr.B.P.Sahu, learned senior counsel for the respondents 2 and 3.
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[2] This writ petition has been filed by the petitioners to direct the
respondents to regularize the services of the petitioners to the posts which they have been holding for more than 10 years continuously. [3] The learned senior counsel appearing for the petitioners submitted that the petitioners have been appointed/engaged on contract basis as Superintendent; Junior Assistant; Hostel Supervisor and Technical Assistant in National Institute of Technology, Manipur on 20.7.2010; 13.8.2010; 3.8.2011 and 19.12.2011 respectively. He would submit that though they were initially appointed for a limited period, subsequently their services were extended from time and still they are working on contractual engagement and the last extension given to them was with effect from 9.9.2021 for a period of six months.
[4] The learned counsel further submitted that while so working, on 8.3.2021, the petitioners have submitted a representation to the Director, NIT requesting regularization of their services by considering their long service. The learned senior counsel submitted that the petitioners have been continuously serving for more than 10 years in their respective duly sanctioned posts without WP(C) No. 717 of 2021 Page 4 5 any protection. Hence, they are entitled to be regularized against their posts in view of the decisions of the Hon'ble Apex Court.
[5] The learned counsel urged that though the petitioners possessed all essential qualifications prescribed for their respective posts, till date, their services have not been regularized by the authorities of the NIT. Further, the authorities of the NIT does not pay any attention to the request of the petitioners. Hence, they have approached this Court for direction to regularize the services of the petitioners considering their long service. [6] Per contra, Mr. BP Sahu, the learned senior counsel appearing for the respondent NIT submitted that there is no clause or statement in the NIT statutes or the recruitment rules with regard to regularization of contractual employees in terms of their long service. He submit that in fact the matter has been discussed at 11 th Board of Governor meeting held on 4.7.2018 and also at 17th Board of Governor meeting held on 13.8.2019 for age relaxation in respect of contractual staff and the Board of Governor always advises to regularize and/or make regular appointment as per the norms of the existing recruitment rules of NIT and the said norm is being followed by the NIT since long time back.
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[7] The learned senior counsel further submitted that in the
appointment orders itself it has been stated that their appointments are contractual and can be terminated by the authorities. The learned senior counsel would submit that mere extension of service for long term do not give any fundamental right to the petitioners for claiming regularization of their service and that the services of the petitioners is subject to the NIT statute and its recruitment rules. Since the relaxation of upper age limit for all contractual employees for appearing in the non-teaching recruitment exam of NIT, Manipur has been permitted by the Board of Governor as per the revised recruitment rule issued by the Ministry, the contention of the petitioners is baseless. [8] Heard Mr. Salam Samarjeet, Senior PCCG appearing for the first respondent Union of India. In his argument he presented that the Union of India has no role to play in this case but the NIT alone is the competent authority to counter the petitioners' case.
[9] This Court considered the rival submissions and also perused the material available on record.
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[10] There is no dispute that the Director, NIT, Manipur issued
notification for walk-in-interview on 7.7.2010 for recruitment of various posts in the NIT, Manipur, including the posts of Superintendent/ Accountant and Junior Assistant etc. and pursuant to the advertisement, the petitioners applied and got selected and appointed on contractual basis as Superintendent; Junior Assistant; Hostel Supervisor and Technical Assistant respectively in NIT, Manipur under various appointment orders. There is also no dispute that their contractual appointment was extended from time to time and the last extension stated to have been expired on 8.3.2022, which is subsequent to the filing of the writ petition.
[11] It appears that on 8.3.2021, the first petitioner submitted a representation to the Director, NIT seeking for regularization of his service stating that he was working at NIT, Manipur for more than nine years and have been continuously serving as Superintendent on contract basis without any break against the sanctioned and vacant post and as such he had also earned experience as Superintendent and rendering his service to the fullest cooperation of his superior officers. Similar representation dated 8.3.2021 was given by the fourth petitioner to the Director, NIT. Admittedly, the said representations have not been considered by the authorities of the NIT till date.
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[12] The petitioners are seeking regularization by stating that they are
serving at NIT, Manipur for more than ten years in different capacities on contract basis without any service protection and the repeated requests of the petitioners to regularize their services have not been considered by the authorities of the NIT, Manipur, though they have fulfilled all the conditions laid down by the Hon'ble Apex Court in the case of State of Karnataka v. Uma Devi, (2006) 4 SCC 1.
[13] The learned counsel for the petitioners also by citing the decision of this Court in W.P.(C) No.895 of 2018, decided on 14.1.2021 [YaikhomJoykumar Singh v. State of Manipur and others], affirmed in W.A.No.34 of 2021, decided on 18.4.2022 [The State of Manipur v. YaikhomJoykumar Singh and others] submitted that in similar circumstances when the petitioner in W.P.(C) No.895 of 2018 sought regularization of his contract services against the existing vacancy, this Court allowed the said writ petition and directed the authorities to regularize the contract service of the petitioner therein. The prayer in the instant case is also identical and, therefore, a direction may be issued to the respondent NIT to regularize the services of the petitioners.
[14] In W.P.(C) No.895 of 2018, this Court held as under:
WP(C) No. 717 of 2021 Page 8 9 "20. In the factual scenario aforesaid and also taking into consideration the long service rendered by the petitioner i.e. more than 20 years, the respondent authorities particularly, the first respondent ought to have considered the claim of the petitioner for regularization. The acts of the respondent authorities in not regularizing the petitioner to the post of Peon/Grade IV of the office of the third respondent though there is a regular vacancy despite positive direction by this Court is unlawful. Further, the fact that the petitioner had rendered his service continuously for more than 20 years diligently, sincerely, regularly and with devotion without any blemish will merit consideration for regular appointment against the existing vacancy as stated by the third respondent in the letter dated 7.9.2016. That apart, nobody questioned the engagement/appointment of the petitioner as Peon till date. Therefore, the reasoning given by the first respondent for rejection of the claim of the petitioner is not acceptable and the same has been issued without applying the mind that too in a hurried manner in order to avoid the contempt proceedings. The interest of justice warrants the petitioner to be regularized considering his pathetic situation. Hence, this Court is of the considered opinion that the impugned order is liable to be quashed.
21. In the result,
(i) The writ petition is allowed.
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(ii) The impugned order dated 13.7.2018 passed by the first respondent is set aside.
(iii) The respondent authorities are directed to regularize the contract service of the petitioner as Peon/Grade IV of the office of the Sub Divisional Officer, Bishnupur against the existing vacancy within a period of eight weeks from the date of receipt of a copy of this order and pay permissible salary to him within two weeks thereafter.
(iv) No costs."
[15] Aggrieved by the order of this Court, the State has preferred Writ Appeal No.34 of 2021. By the Judgment and Order dated 18.4.2022, the Hon'ble First Bench of this Court dismissed the writ appeal and issued direction on the State to regularize the service with retrospective effect within the time limit as stipulated in the judgment under appeal.
[16] The Hon'ble First Bench of this Court has elaborately dealt with the writ appeal by citing various decisions of the Hon'ble Apex Court regarding regularization of services of an employee who had even been irregularly appointed and not legally. Paragraph 19 of the said judgment is relevant and the same is extracted hereunder:
WP(C) No. 717 of 2021 Page 10 11 "[19] More significantly, the appointment of respondent No.1 is not 'illegal' in terms of the essentials laid down in Uma Devi (supra). His initial appointment in the year 1998 was against a duly sanctioned vacancy, which arose upon retirement of the incumbent. Administrative exigency therefore required his engagement. It is not the case of the State that he did not possess the requisite qualification, in as much as he participated in the selection process when a post was notified a few years later. There is no indication of his having been appointed due to nepotism, bias or malafides. He continued in service since 1998 without the protection of any order from a Court and is still working as on date. In such circumstances, this Court finds no grounds whatsoever to distinguish his case from that of Ksh. Ibopishak Singh. The direction of the learned Judge to treat him on par with Ksh. Ibopishak Singh and to regularize his services, therefore, does not call for any interference. As pointed out by the Supreme Court in All India Trade Union Congress and others (supra), it is only in an exceptional case that the Court may consider it appropriate to issue mandatory directions. In the case on hand, given the flagrant discrimination shown by the authorities in dealing with two identically situated employees who sought regularization of their services, the positive direction of the learned Judge was not only desirable, but very much required." [17] In the instant case, admittedly, the appointment of the petitioners is not illegal and the petitioners have been selected and appointed under due process. Based on the selection and appointment under due process, the WP(C) No. 717 of 2021 Page 11 12 services of the petitioners were extended from time to time by the respondent NIT. The engagement/appointment of the petitioners as contract basis and their continuance in service have not been disputed by the respondent NIT. However, the respondent NIT contended that the Board of Governor always advises NIT to regularize any employees as per the norms of existing recruitment rules of NITs. Nothing has been produced by the respondent NIT to show that the petitioners are not coming within the said norms and are not entitled to be regularized. Further, the argument of the learned senior counsel for the respondent NIT that since the appointments of the petitioners are contractual and can be terminated by the NIT and the petitioners cannot seek for regularization, cannot be countenanced.
[18] At this juncture, it is pertinent to mention that the object behind the direction in Umadevi (3) (supra) is two fold - First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularize them on the ground that they have WP(C) No. 717 of 2021 Page 12 13 served for fore more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization.
[19] In the instant case, the petitioners are all working for more than ten years without the protection of any interim order of any court or tribunal. Nothing has been produced by the respondent NIT to show that they are all not working under vacant posts and also not possessed the requisite qualification for considering them for regularization. On the other hand, the petitioners established that they possessed requisite qualification and are serving under vacant posts.
[20] It is opposite to mention at this juncture that no objection has ever been raised against the appointment/engagement of the petitioners and since the appointment was legal in its inception, the authorities of respondent NIT extended the services of the petitioners from time to time. Therefore, the respondent NIT is duty bound to consider the claim of the petitioners WP(C) No. 717 of 2021 Page 13 14 sympathetically as well as legally, as their appointment/engagement is legal and are working for more than ten years.
[21] The petitioners have established that they have already rendered more than ten years of continuous service against clear sanctioned vacant posts and as such in view of the decisions of the Hon'ble Apex Court, they are entitled to be regularized against the said posts. The petitioners have also established that they have possessed the requisite qualifications prescribed for the said posts. Further, the essential for regularization stipulated by the Hon'ble Apex Court has been fulfilled by the petitioners. Therefore, this Court is of the considered view that the prayer of the petitioners is to be acceded to in the interest of justice as well as considering the pathetic situation of the petitioners.
[22] In the result,
(i) The writ petition is allowed.
(ii) The respondents are directed to regularize the services
of the petitioners to the posts, which they have been holding continuously for more than ten years.
(iii) The petitioners are entitled to the service benefits upon regularization in accordance with law.
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(iv) The said exercise is directed to be completed within a
period of three months from the date of receipt of a copy of this order.
(v) No costs.
JUDGE
FR/NFR
John Kom
WP(C) No. 717 of 2021 Page 15