Manipur High Court
Laitonjam Nabadwip Singh vs The State Of Manipur on 7 June, 2022
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
1
JOHN Digitally signed
by JOHN TELEN
KOM
TELEN Date:
2022.06.08
KOM 10:51:39
+05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C)No.289 of 2021
1. Laitonjam Nabadwip Singh, aged about 55 years, S/o L. Tomba
Singh, resident of Charangpat Mayai Leikai, PO & PS and
District Thoubal, Manipur-795138;
2. Smt. Sapam Prava Devi, aged about 57 years, D/o S. Kumar,
resident of Sagolband Shayang Kurao Makhong, PO & PS
Imphal, District, Imphal, Manipur-795001.
......Petitioner
- Versus -
1. The State of Manipur, represented by the Principal
Secretary/Commissioner/Secretary, Commerce and Industries,
Government of Manipur, Secretariat Complex, Babupara
Imphal-795001;
Wp(C)No.289 of 2021 Page 1
2
2. The Director, Commerce and industries, Government of
Manipur, Imphal, Manipur, Takyelpat, PO & PS Lamphel-
795004.
.... Respondent
BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN For the Petitioner : Ms. L. Sillori, Adv.
For the Respondents : Mrs. CH. Sundari, GA
Date of reserved : 16.05.2022
Date of Judgment & Order : 07.06.2022.
JUDGMENT & ORDER
(CAV)
1. This writ petition has been filed by the petitioners to quash the impugned order dated 10.1.2019 and to regularize the services of the petitioners within a time frame so as to enable them to enjoy the Wp(C)No.289 of 2021 Page 2 3 service benefits as well as retirement benefits received by the other regular Government employees and also to extend similar service benefits received by K.Birjit Singh or 8 Muster Roll/Casual Employees.
2. The case of the petitioners is that the first petitioner was engaged as Demonstrator/Skilled Artisan, while the second petitioner was engaged as Skilled Artisan at Rs.11/- per day for a period of three months and one month respectively and the services of the petitioners were extended from time to time and had been continuing in service till date. One K.Birjit Singh was earlier engaged as casual worker on 18.6.1986 and thereafter by the order dated 20.7.1998 of the Director of Commerce and Industries appointed the said K.Birjit Singh to the post of Skilled Artisan (Bamboo and Cane) against the post creation order dated 3.3.1978 vide Md. Kumar Jaman, Skilled Artisan retired on 31.1.1994. By the order dated 25.6.2010, 8 Muster Roll/Casual employees of Commerce and Industries Department have been regularized in pursuance of the order dated 17.8.1995 passed in C.R.No.778 of 1993 on the file of the Gauhati High Court.
Wp(C)No.289 of 2021 Page 3 4
3. Further case of the petitioners is that the petitioners and some others were stagnating as Muster Roll/Casual employees for years.The Director of Commerce and Industries vide letter dated 14.7.2016 requested requisition of candidates for appointment to various posts, including the posts in which the petitioners and other incumbents have been engaged decades together. Being aggrieved, the petitioners and others have filed W.P.(C) No.626 of 2016 before this Court. By the order dated 10.5.2018, this Court disposed of the writ petition by issuing certain directions. Since no action was taken, the petitioners and others have filed Contempt Case No.88 of 2019 before this Court and the same was closed on 20.8.2019 by producing a copy of the impugned proceedings dated 10.1.2019.
4. According to the petitioners, the impugned order was not served on them and due to communication gap between the petitioners and their counsel and due to Covid epidemic, the petitioners were not able to get information about the case. After partial relaxation, the first petitioner came to know that the Contempt Case was closed according Wp(C)No.289 of 2021 Page 4 5 to the proceedings dated 10.1.2019. Immediately, on 16.2.2021, the first respondent submitted an application to the second respondent for furnishing the copy of the order dated 10.1.2019 and the first petitioner was furnished the impugned copy on 9.3.2021. Challenging the order dated 10.1.2019, the petitioners have filed the present writ petition.
5. The first respondent filed affidavit-in-opposition stating that the appointment of K.Birjit Singh who was serving as casual Skilled Artisan (B&C) on regular basis to the post of Skilled Artisan (B&C) was made in compliance with the order dated 5.2.1998 in Civil Rule No.179 of 1995. The regularization of 8 casual workers of the Department on 25.6.2020 to the post of Skilled Artisan/Demonstrator (Pina) were in compliance with the order of the High Court dated 17.8.1995 in C.R.No.778 of 1993. It is stated that the respondent Government had minutely examined the orders of this Court passed in W.P.(C) No.626 of 2016 dated 10.5.2018 and accordingly issued the impugned order dated 10.1.2019 thereby finding that the petitioners are not eligible for Wp(C)No.289 of 2021 Page 5 6 regularization to their respective posts held on casual/contract basis in the Directorate.
6. It is stated that there was a gap in the engagement of the petitioners as casual/muster roll, whereas, K.Birjit Singh and 8 others who were regularized by the State Government was that they were engaged against the sanctioned post and there was no gap in the service records and also recruitment rules were also fulfilled by K.Birjit Singh and 8 others. Therefore, the case of the petitioners for regularization of their services were rejected by the respondents.
7. Assailing the impugned order, the learned counsel for the petitioners submitted that the order dated 10.5.2018 passed in W.P.(C) No.626 of 2016 lays down two alternative conditions for regularization i.e. qualified/affirmative for condition (a), (b) & (c) or affirmative for condition (d) which also contains two parts. Thus, the learned counsel submitted that the impugned order dated 10.1.2019 passed by the second respondent is not in consonance with the direction of this Court in W.P.(C) No.626 of 2016.
Wp(C)No.289 of 2021 Page 6 7
8. The learned counsel further submitted that the petitioners, who were engaged in similar manner as K.Birjit Singh.K.Birjit Singh was engaged for one month in the year 1986 and the first petitioner was engaged for three months in the year 1985 and the second petitioner was engaged for one month in the year 1986. As such the impugned order dated 10.1.2019 stating that K.Birjit Singh was engaged as Skilled Artisan (B&C) against sanctioned post is totally false.
9. The learned counsel then submitted that K.Birjit Singh has completed continuous service of 12 years in the year 1998 and the petitioners also completed 12 years of regular service in the year 1997 and 1998 respectively and as such, the impugned order stating that engagement of the petitioners is not similarly situated with that of K.Birijit Singh is erroneous.
10. The learned counsel next submitted that in the span of 12 years from the initial date of engagement, there has not been any one day break in service, and such artificial break, though illegal, will not occur after implementation of Office Memorandum dated 19.2.2005.
Wp(C)No.289 of 2021 Page 7 8 The eight persons who have been appointed to the post of Demonstrator/Skilled Artisan (Pina) on 25.6.2010, they were initially engaged in the year 1972-75-76-77 for two months, per day until further orders, for piece rate and for one month and it has been stated that they were continuously engaged for 20 years. Similarly, the first petitioner was engaged for three months in the year 1985 and the second petitioner for one month in the year 1986 and the first petitioner completed 20 years continuous service and the second petitioner completed 19 years continuous service as on implementation of Office Memorandum dated 19.2.2005 in the year 2005.If the artificial break of one day is exempted, the petitioners would be considered as continuous service of 36 years and 35 years respectively.
11. The learned counsel for the petitioners urged that there is clear vacancy of the post of the petitioners. The post of first petitioner i.e. Demonstrator/Skilled Artisan (Foundry) has one vacant post unfilled due to the filing of W.P.(C) No.626 of 2016 and for the post of the second petitioner i.e. Skilled Artisan (Carpet Weaving), there will be one vacant post on 31.3.2021. As such, the petitioners can be Wp(C)No.289 of 2021 Page 8 9 regularized without any hurdle of post creation. In support, the learned counsel placed reliance upon the decision in the case of All Manipur Government Arts & Culture Department v. State of Manipur and others, (2011) 4 GLT 864.
12. Per contra, the learned Government Advocate submitted that the contract engagement of the petitioners were made with the second respondent after obtaining approval of the Committee of officers for such engagement. When the petitioners entered into their services there was an agreement signed between the petitioners and the State Government on which it is clearly mentioned that the petitioners cannot claim for regularization of their services.
13. The learned Government Advocate further submitted that the regularization of K.Birjit Sigh and 8 others were done in compliance with the orders of the High Court, whereas the prayer of the petitioners for regularization of their casual/contract basis could not be considered by the respondent Government as stated in the impugned order dated 10.1.2019. The case of the petitioners has been examined very Wp(C)No.289 of 2021 Page 9 10 carefully and as per the direction of this Court in W.P.(C) No.626 of 2016 and therefore, there is no illegality in it.
14. The learned Government Advocate added that rules of recruitment cannot be relaxed and the Court/Tribunal cannot direct regularization of temporary appointees dehors the rules. In support, the learned Government Advocate placed reliance upon the decision in the case of Indian Drugs & Pharmaceuticals Limited v. Workmen, Indian Drugs & Pharmaceuticals Limited, (2007) 1 SCC 408.
15. This Court considered the rival submissions and also perused the materials available on record.
16. The grievance of the petitioners is that they were engaged in their respective posts sometime in the year 1986 and since then, they have been continuously discharging their duties with the hope that their services would be regularized/absorbed in due course.
17. Earlier, when the Director of Commerce and Industries, Government of India vide letter dated 14.7.2016 requested requisition Wp(C)No.289 of 2021 Page 10 11 of candidates for appointment to various posts, including the posts in which the petitioners and other incumbents have been engaged and stating that the petitioner and similarly situated persons are stagnating as Muster Roll/Casual Employees for years and also highlighting that one K.Birjit Singh who was earlier engaged by the Department as casual worker was appointed to the post of Skilled Artisan (B&C) against the post creation order, the petitioner and other incumbents have filed W.P.(C) No.626 of 2016 before this Court.
18. By the order dated 10.5.2018, this Court disposed of the said writ petition. The operative portion of the order reads thus:
"[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 a to whether the petitioners were eligible for appointment Wp(C)No.289 of 2021 Page 11 12 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 or 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:
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 the direction (d) is in affirmative, the petitioners shall be regularised by the State Government within two months thereafter."
Wp(C)No.289 of 2021 Page 12 13
19. As rightly argued by learned counsel for the petitioners, the order dated 10.5.2018 speaks about two alternative conditions for regularization i.e. qualified/affirmation for condition (a), (b) and (c) or affirmative for condition (d), which also contains two parts.
20. Pursuant to the directions of this Court, the Director, Trade, Commerce and Industries, Government of Manipur passed the impugned order dated 10.1.2019 and in paragraphs 4 and 5, it has been stated as under:
"4. Whereas none of the petitioners fulfil the condition at (a) of the directions of the High Court even though there were some candidates who satisfy condition at (b) & (c). As such, the answer to the directions (a) & (c) is not affirmative and there will be no question of issue of regularization order on account of the first condition of the directive of the Hon'ble High Court.
5. Whereas, the present petitioners were engaged and their terms of engagement were extended from time to time with one day gap in a year. Therefore, technically, their engagement were not extended but re-engaged for another year, each after the lapse of previous engagement and as such, they were last engaged for 1 (one) year only against the continuous engagement for 20 years Wp(C)No.289 of 2021 Page 13 14 in respect of 8 (right) persons. before their regularization.
Similarly, Shri K. Birjit Singh was engaged as Skilled Artisan (Bamboo & Cane) against sanction post and had been working continuously for twelve years without any break and he was not lacking requisite qualification prescribed under the RR. Therefore, engagement of the petitioners is not similarly situated with that of the 8 (eight) persons under consideration nor with Shri K. Birjit Singh. In this regard, the 2nd part of the second condition as stated at Para 1(d) mentioned above is not affirmative and the petitioner does not satisfy the condition of the directive of the Hon'ble High Court."
21. Two conditions emanate from the above order, namely (1) Whether the petitioners qualifies condition (a), (b) and (c) and (2) Whether the petitioners are similarly situated with K.Birjit Singh who has been appointed as Skill Artisan (B&C) vide order dated 3.3.1978 or with the said eight persons who have been appointed to the posts of Demonstrator/Skill Artisan (Pina) vide order dated 25.6.2010.
22. Insofar as condition (a), it appears that the petitioners herein as well as the position of K.Birjit Singh and eight other incumbents regularized were initially engaged in similar manner and Wp(C)No.289 of 2021 Page 14 15 under similar terms and conditions and they were not engaged against any sanctioned post and subsequently, the post creation has been done.
23. If we consider condition (b), the petitioners were eligible as per the then existing Recruitment Rules and that is why in the impugned order the second respondent stated that "as such, the answer to the directions (a) & (c) is not affirmative and there will be no question of issue of regularization order on account of the first condition of the directive of the Hon'ble High Court."
24. As far as condition (c) is concerned, the petitioners have served for more than 10 years. The petitioners were appointed on 18.5.1985 and 05.6.1986 respectively and they have also completed 10 years of service in the year 1995 and 1996 itself.
25. Coming to the comparison of the petitioners with one K.Birjit Singh is concerned, K.Birjit Singh was engaged as Skilled Artisan (B&C) on 18.6.1986 for a period of one month and his engagement was extended from time to time. K.Birjit Singh approached Wp(C)No.289 of 2021 Page 15 16 the Gauhati High Court by filing Civil Rule No.179 of 1995 inter alia praying for regularizing his service as Skilled Artisan. By the order dated 5.2.1998, the Gauhati High Court disposed of the case. The operative portion of the order reads thus:
"6. By now, the petitioner has been working as Skilled Artisan (Bamboo & Cane) for almost 12 years. He is entitled to be regularized in the post. The respondents are therefore, directed to regularize the service of the petitioner immediately if there is any post in existence and in the event there is no post in existence, he shall be regularized in the immediate future vacancy that may arise. Till regularization of his service, petitioner shall not be ousted from the post that he is holding."
26. It is seen that vide order dated 20.7.1998, the Directorate of Commerce and Industries, appointed K.Birjit Singh to the post of Skilled Artisan (B&C) by creating the said post as Md. Kumar Jaman, Skilled Artisan (B&C) retired on 31.1.1994.
27. Insofar as 8 other incumbents, whose services have been regularized vide order dated 25.6.2010, is concerned, they were initially engaged in the year 1972-75-76-77 in the similar manner with that of Wp(C)No.289 of 2021 Page 16 17 the petitioners. They have also approached the Gauhati High Court by filing Civil Rule No.778 of 1993 and by the order dated 17.8.1995, the said case was disposed of. The operative portion of the order is extracted hereunder:
"Accordingly, this writ application is allowed. The respondent No.2 and 3 are directed to regularize the services of the petitioners within a period of three months from the date of receipt of this order. Regularisation shall be done by the authority in such manner so that the petitioner at the end of their service is entitled to have something as pensionary benefit or retiral benefits otherwise if they are regularized simply, they will have nothing in the end of their service carrier. So the authorities shall regularize the services of the petitioner from back date by giving them only retirement benefit so that they get pensionary benefits. None of the petitioners shall be thrown out from the service in the meantime."
28. The learned Government Advocate contended that there was a gap in the engagement of the petitioners as casual/muster roll, whereas K.Birjit Singh and 8 other incumbents who were regularized were engaged against the sanctioned posts and there was no gap in their service records and also the Recruitment Rules were also fulfilled Wp(C)No.289 of 2021 Page 17 18 by K.Birjit Singh and 8 others. Nothing has been produced by the respondents to show that the engagement of K.Birjit Singh and 8 others was against the sanctioned posts.
29. In reply, the learned counsel for the petitioner, by placing reliance upon the decision in the case of All Manipur Government Arts & Culture Department (supra) submitted that the artificial break of one day in the continuous service is arbitrary. He also pointed out that the one day gap only came into existence only after implementation of the Office Memorandum dated 19.2.2005 wherein it has been directed that engagement of person on contract basis by various Department should be done on the prescribed standard agreement format and no other engagement orders, letters etc. shall be issued by any authority.
30. In All Manipur Government Arts & Culture Department (supra) at paragraph (7), this Court held thus:
"7. For the foregoing decision, this Court is of the considered view that artificial break of one day in the continuous service of the members of the petitioner Union as casual/contract employees in Wp(C)No.289 of 2021 Page 18 19 the Arts & Culture Department, Govt. of Manipur, is arbitrary. Accordingly, this Court has no alternative except to direct the State respondents not to create artificial one day's break i.e. 01.11.2003 in extending the term of the services of the members of the petitioner Union as casual/contract employees while issuing the impugned order dated 30.8.2005 and necessary extension order should be issued by the respondents for not creating artificial one day's break i.e. 01.11.2003 in extending the term of the services of the members of the petitioner Union as casual/contract employees within a period of three months from the date of receipt of a certified copy of the judgment and order of this Court, which is being furnished by the petitioner Union within a period of 10(ten) days from today to the Director of Arts & Culture Department, Govt. of Manipur. 8. To the extent indicated above, this writ petition is allowed."
From the above, it is clear that there should not be artificial break of one day.
31. It is to be mentioned that K.Brijit Singh, was engaged for one month in the year 1986, whereas the first petitioner was engaged for three months in the year 1985 and the second petitioner was engaged for one month in the year 1986.
Wp(C)No.289 of 2021 Page 19 20
32. By placing reliance upon the decision in the case of Indian Drugs & Pharmaceuticals Limited (supra), the learned Government Advocate argued that the Court/Tribunal cannot direct regularization of temporary appointees'dehors the rules. In Drugs & Pharmaceuticals Limited (supra), the Hon'ble Supreme Court held:
"43. In view of the above observations of this Court it has to be held that the rules of recruitment cannot be relaxed and the court/tribunal cannot direct regularization of temporary appointees dehors the rules, nor can it direct continuation of service of a temporary employee (whether called a casual, adhoc or daily-rated employee) or payment of regular salaries to them.
33. It is not the case of the respondents that the very engagement/appointment of the petitioners is illegal. In Drugs & Pharmaceuticals Limited (supra), the appointment was questioned and therefore, the regularization was not permitted. In the case on hand, the appointment of the petitioners is not under challenge and there is also no illegality in the initial appointment. Therefore, the decision in the case of Drugs & Pharmaceuticals Limited (supra) relied upon by the learned Government Advocate is not applicable to the case on hand.
Wp(C)No.289 of 2021 Page 20 21
34. It is apposite to mention at this juncture that the initial engagement of K.Birjit Singh was not against any sanctioned post and after completion of 12 years continuous service and in compliance with the order dated 5.2.1995, his service was regularized on 20.7.1998. In the counter, the second respondent admitted that regularization of K.Birjit Singh and 8 casual workers by the Department were done in compliance of the Court orders. The petitioners who were appointed in the year 1985 and 1986 have already completed 10 years in the year 1997 and 1998 respectively. With respect to the 8 other incumbents who were engaged in the year 1972-75-76-77, the impugned order dated 10.1.2019 states that they have been engaged for continuous period of 20 years.
35. It is seen that the petitioners have also completed 20 years of continuous engagement. In fact, the first petitioner completed his 20 years of continuous engagement on 18.5.2005 while the second petitioner completed the 20 years of engagement on 5.6.2006. Therefore, the impugned order stating that engagement of the Wp(C)No.289 of 2021 Page 21 22 petitioners is not similarly situated with that of K.Birjit Singh is erroneous and is liable to the set aside. It is also seen from the records that in the span of 12 years from the date of initial date of engagement, there has not been any one day break in service.
36. The petitioners 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 regularization/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. The petitioners are now aged 56 and 58 years respectively. As stated supra and there is also no dispute that the petitioners were engaged as Skill Artisans (Foundry) and (Carpet Weaving) respectively on 5.6.1986 and their engagements Wp(C)No.289 of 2021 Page 22 23 were extended from time to time. As a result of which, they have been continuing in that capacity till date.
37. The learned counsel for the petitioner urged that there is clear vacancy of the posts of the petitioners and in respect of the post of the first petitioner, there is a vacant post unfilled due to the filing of W.P.(C) No.626 of 2016 and for the post of second petitioner, one vacant post exist as one Md.Shahid Ali retired on superannuation. The petitioners can be regularized without any hurdle of posts creation.
38. When similarly situated persons have granted the benefit of regularization, the petitioners were discriminated. Therefore, this Court finds merit in the writ petition. That apart, while passing the impugned order dated 10.1.2019, the second respondent ignored the said aspects of the matter and had passed a mechanical order. On the other hand, the petitioners have fulfilled the conditions for regularisation. Therefore, there are grounds to interfere with the impugned order. Since the impugned order cannot be sustained in the eye of law, the same is liable to be quashed.
Wp(C)No.289 of 2021 Page 23
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39. In the result,
(a) the writ petition is allowed.
(b) The impugned order dated 10.1.2019 declining
regularization of the petitioners is set aside.
(c) The respondents are directed to regularise the services of the petitioners and extend the similar service benefits received by K.Birjit Singh and 8 other incumbents.
(d) 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. No costs.
JUDGE
FR/NFR
John Kom
Wp(C)No.289 of 2021 Page 24