A. Surjamukhi Devi vs State Of Manipur

[1] Heard Shri S. Samarjeet, learned Advocate appearing for the petitioner and Shri Th. Vashum, learned Government Advocate appearing for the

respondents.

[2] By the instant writ petition, the petitioner has prayed for issuing a writ of certiorari or any other appropriate writ to quash and set aside the letters

dated 15-01-2016 and dated 10-10-2019 issued by the Director of Commerce & Industries, Government of Manipur and the Director of Handloom &

Textiles, Manipur rejecting the regularization of the officiating service of the petitioner as the Data Compiler-cum-Registration Assistant and also to

issue an order similar to that of the order dated 19- 01-2018 passed by this Court in WP(C) No.78 of 2016 directing the respondents to regularize the

officiating appointing of the petitioner for the period from 18-12-1987 till February, 2015 for grant of pensionary benefits.

[3.1] The petitioner was initially appointed as the Data Compiler cum Registration Assistant on casual basis in the year 1980 vide Government order

dated 01-09-1980 and was posted at the Head Office of the Department at Lamphel. The service of the petitioner was absorbed on officiating

capacity to the said post on 18-12-1987. As per the recruitment rules, a person with graduate having the knowledge of weaving experience is eligible

for appointment to the said post. The petitioner along with others, in the capacity of an association, filed a writ petition being CR No.55 of 1991

claiming for regular appointment which was disposed of on 28-09-1984 directing that as and when regular vacancy would arise, the petitioners therein

should be accommodated and their services should not be disturbed. In the meantime, some persons who were working on ad-hoc/ officiating basis

had been given regular appointment as per the scheme/ policy of regularization dated 09-10- 1992.

 [3.2] Having treated the petitioner by the State Government as a full- fledged Government employee except the use of the word “officiatingâ€,

she was provided with the Manipur Government Employee List (MGEL) number as 028792 with service book being maintained for her as is evident

from the GPF statement sheet dated 05-08-2012.

[3.3] Some persons approached the High Court by way of a writ petition being WP(C) No.317 of 2012 for counting their officiating services and for

grant of pensionary benefits which was disposed of on 18-02-2013 with the direction that their officiating services be counted for all purposes and

accordingly, the Government issued an order dated 06-06-2013 thereby counting the services of the petitioners therein for pensionary benefits.

[3.4] The fact that the petitioner was provided with MGEL number is quite evident from the certified information as on 08-01-2015 available in the

Personnel Information System maintained by the State Government. On 08-01-2015 itself, the petitioner along with two others submitted an application

to the authority for taking up necessary action for allowing them to enjoy pensionary benefits, as the petitioner was to retire on attaining the age of

superannuation in the next month. After about a year, the Director of Commerce & Industries, Government of Manipur appears to have issued the

letter dated 15-01-2016 stating that the Department of Personnel, Government of Manipur did not agree to the proposal as there was no clear-cut

policy/ rule for regularization of officiating officials and that it might lead to similar demands for other persons who were appointed on ad-hoc basis.

The existence of the letter dated 15-01-2016 was not known to the petitioner till she got RTI reply dated 06-07-2018 from the Director of Trade,

Commerce & Industries, Government of Manipur in response to her application dated 17-05-2018.

[3.5] In the meantime, the petitioner came to know that other two applicants-Smt. K.Swarnalata Devi and Smt. A. Kiranbala Devi filed a writ petition

being WP(C) No.78 of 2016 which was disposed of by this Court on 19-01-2018 directing the respondents to consider their cases within three months

from the date of receipt of a copy of the order by issuing a speaking order. In compliance with the said order, the Deputy Secretary to the State

Government vide its letter dated 24-05-2019 conveyed the approval of the State Government to provide pensionary benefits as per CCS rules with

effect from 18-12-1987. Immediately thereafter, the Director of Handlooms & Textiles, Manipur issued an order dated 31 -05- 2019 regularising their

officiating appointment retrospectively from 18 -12- 1987. Smt. K.Swarnalata Devi retired on 31-03-2016.

[3.6] According to the petitioner, she was similarly situated with Smt. K.Swarnalata Devi and therefore, her case is covered by the order dated 19-01-

2019 passed by this Court. Therefore, after knowing the existence of the order dated 31-05-2019, she submitted a representation dated 28- 08-2019 to

the respondents for reconsideration of her case. But the respondents vide their letter dated 10-10-2019 informed the petitioner that the regularization

of her officiating appointment could not be considered as informed vide letter dated 15-01-2015. Being aggrieved by the inaction on the part of the

respondents, the instant writ petition has been filed on the inter-alia grounds that the inaction of the respondents is unfair and unreasonable being

violative of Article 14 of the Constitution of India. .

[4] In the affidavit filed on behalf of the State Government, it has been stated that there is no provision in the recruitment rules for regularisation of

officiating appointment of the petitioner as the Data-Complier-Cum Registration Assistant and moreover, the Data-Complier-Cum Registration

Assistant has been included in the downsizing of posts under the Government order dated 16-06-2003. The High Court’s order dated 18-02-2013

passed in WP(C) No.317 of 2012 relates to the consideration of counting of services, for the purpose of pensionary benefits, of those employees who

were appointed on officiating capacity and subsequently, regularized to their respective posts. So far as the Government order dated 24-05-2019 is

concerned, it has been issued conveying approval in compliance with the Court’s order dated 19-01-2018 for regularization of the officiating

appointment of Smt. K. Swarnalata Devi and Smt. A. Kiranmala Devi as the Data-Complier-Cum Registration Assistant, followed by the order dated

31-05-2019 issued by the Department. As the petitioner was not one of the petitioners in WP(C) No.78 of 2016, her contention that her case was

similar to that of Smt. K. Swarnalata Devi and Smt. A. Kiranmala Devi, was baseless. Therefore, her representation dated 20-08-2019 could not be

considered and the petitioner was informed about it vide letter dated 10-10-2019 of the Department. There is no question of violation of Article 14 of

the Constitution of India.

[5] The question that arises for consideration by this Court, is to whether, having regard to the facts and circumstances of the present case, the

petitioner is entitled to the same relief being granted to Smt. K. Swarnalata Devi and Smt. A. Kiranmala Devi, as they were similarly situated with

her. Shri S. Samajeet, learned counsel appearing for the petitioner has submitted that the question shall be answered in the affirmative, as it is covered

by the decision rendered by the Hon’ble Supreme Court in State of Uttar Pradesh & ors Vs. Arvind Kumar Srivastava & ors, (2015) 1 SCC 347.

On the contrary, relying upon the decision rendered by the Hon’ble Supreme Court in Secretary to Government, School Education Department,

Chennai Vs. R. Govindaswamy & ors, (2014) 4 SCC 769, it has been submitted by Shri Th. Vasum, learned Government Advocate that the question

shall be answered in the negative.

[6] In view of the rival contentions as aforesaid, the answer to the said question can be determined after examining the said two decisions relied upon

by them. In Arvind Kumar Srivastava (supra) wherein sometime in the year, 1986, the Chief Medical Officer, Varanasi issued an advertisement

inviting applications for appoint of Homeopathic Compounder and Ward Boys. The respondents participated in the selection process but when the

result was declared, their names along with others, were kept in the waiting list. Since some of the selected candidates did not join, the appointment

letters were issued to them. Before they could join their duties, the new CMO vide its order dated 22- 06-1987 cancelled the appointments. The

respondents challenged it by way of a suit before the Court of City Munsiff. When the suit was dismissed for non-prosecution, they did not pursue it.

Some other candidates challenged it before the Tribunal which quashed it as illegal and void on 16-08-1991. A writ petition filed by the State against

the order of the Tribunal was dismissed on 12-08-1994 and the special leave petition met the same fate with the result that the order of the tribunal

had attained finality and they got the appointments.

In the year, 1995, the respondents filed a petition for giving appointments on the strength of the order of the Tribunal which was rejected by the CMO

vide order dated 06-06-1995. They approached the Tribunal by way of a petition which was allowed holding that they would be entitled to the same

relief, as they were in the same position as that of those who succeeded before the Tribunal. The High Court affirmed the order of the Tribunal.

When the civil appeal by way of special leave which was granted, was preferred before the Hon’ble Supreme Court, the question was as to

whether in the given case, the approach of the Tribunal and the High Court was correct in extending the benefit of the earlier judgment of the Tribunal

which had attained finality, as it was affirmed till the Supreme Court. The Hon’ble Supreme Court, after examining various judgments wherein the

Hon’ble Supreme Court had applied the ratio of the earlier judgments to the similarly situated persons giving them the same benefits, summed up

the legal principles which read as under:

“22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated

alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This

principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that

all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did

not approach the Court earlier, they are not to be treated differently.

22.2. However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who

did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their

counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the

judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or

the acquiescence, would be a valid ground to dismiss their claim. 22.3. However, this exception may not apply in those cases where the judgment

pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not.

With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a

situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C.

Sharma & Ors. v. Union of India). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall

accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and

language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not

suffer from either laches and delays or acquiescence.â€​

[7] In R. Govindaswamy (supra) wherein the respondents were appointed as part-time sweepers by the appellant from 1987 till 1993. After having

worked for more than 10 years, the respondents filed some writ petitions for regularization of their services which were allowed with the direction to

regularize of their services. The writ appeals preferred against the said order were dismissed and the civil appeals by way of special leave, were

preferred before the Hon’ble Supreme Court. The Hon’ble Supreme Court relied upon the principles laid down in State of Rajasthan Vs.

Daya Lal, (2011) 2 SCC 429 which read as under:

“8(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent

continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules

in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed

and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While

something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process,

can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be

regularised.

(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer

upon him any right to be absorbed into service, as such service would be “litigious employmentâ€. Even temporary, ad hoc or daily- wage service

for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a

sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.

(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified

number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-

off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes

providing for successive cut-off dates.

(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for

absorption, regularisation or permanent continuance of part-time temporary employees.

(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the

principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government

employees. The right to claim a particular salary against the State must arise under a contract or under a statute.â€​

Holding that the civil appeals are covered by the clauses (ii),

(iv) and (v), the Hon’ble Supreme Court allowed them without disturbing the regularization in terms of the submission made by the counsel

appearing for the appellant.

[8] After having examined the said two decisions, this Court is of the view that there can be no any dispute as regards the law laid down by the

Hon’ble Supreme Court in R. Govindaswamy (supra) but it will have no relevance and application, so far as the issue involved herein is

concerned. On the other hand, it is well settled that the principles have been laid down by the Hon’ble Supreme Court in Arvind Kumar Srivastava

(supra), on the basis of which the issue involved herein will have to be considered and decided by this Court with reference to the facts and

circumstances of the present case.

[9.1] In the present case, the petitioner was initially appointed as the Data Compiler cum Registration Assistant on casual basis vide Government order

dated 01-09-1980 and her service was absorbed on officiating capacity to the said post on 18-12-1987 along with four other including Smt.

K.Swarnalata Devi and Smt. A. Kiranbala Devi. The Industries Department Grade-III Officiating Employees Association of which the petitioner was

a member, filed a writ petition being CR No.55 of 1991 claiming for regular appointment which was disposed of on 28-09- 1984 directing that as and

when regular vacancy would arise, the petitioners therein should be accommodated and until an alternative arrangement was made, their services

should not be disturbed. Having treated the petitioner by the State Government as a full-fledged Government employee except the use of the word

“officiatingâ€, she was provided with the Manipur Government Employee List (MGEL) number as 028792 with service book being maintained for

her as is evident fro m the GPF statement sheet dated 05-08-2012 and the certified information as on 08-01-2015 available in the Personnel

Information System maintained by the State Government. On 08-01-2015 itself, the petitioner along with Smt. K.Swarnalata Devi and Smt. A.

Kiranbala Devi submitted an application to the authority for taking up necessary action for allowing them to enjoy pensionary benefits, as the petitioner

was to retire on attaining the age of superannuation in the next month, on the basis of which the Director, Commerce & Industries, Manipur vide its

letter dated 03-02-2015 appears to have requested the Secretary/ Commissioner (Com. & Ind.) for consideration. However, the Under Secretary

(Com. & Ind.), Government of Manipur vide letter dated 07-12-2015 informed that the Department of Personnel had not agreed to the proposal, as

there was no clear-cut policy decision/ rule for such regularisation of officiating officials. Thus, it is seen that the petitioner was similarly situated with

Smt. K.Swarnalata Devi and Smt. A. Kiranbala Devi.

[9.2] Smt. K.Swarnalata Devi and Smt. A. Kiranbala Devi filed a writ petition being WP(C) No.78 of 2016 praying for regularization of their service

from the date of their initial officiating appointment, which was disposed of on 19-01-2018 with the direction to consider their cases within three

months. But the petitioner did not join them in approaching Court and therefore, the corollary issue is as to whether the petitioner is entitled to the

same relief in terms of the principles laid down by the Hon’ble Supreme Court. Only after the said judgment and order dated 19- 01-2018 having

been passed by this Court, the petitioner filed an application dated 17-05-2018 under the RTI and as per the information furnished by the Department,

she came to know that the Director of Commerce & Industries, Government of Manipur had issued a letter dated 15-01-2016 stating that the

Department of Personnel, Government of Manipur did not agree to the proposal as there was no clear-cut policy/ rule for regularization of officiating

officials and that it might lead to similar demands for other persons who were appointed on ad-hoc basis. The existence of the letter dated 15-01-2016

was not known to the petitioner, till she got RTI reply dated 06-07-2018 from the Director of Trade, Commerce & Industries, Government of Manipur

in response to her application dated 17-05-2018. From the aforesaid facts and circumstances, it is further seen that for more than two years, the

petitioner did sleep over her case, may be, for the reason that she has retired and she appears to have awaited the outcome of the WP(C) No.78 of

2016 and wake up only after the factum of delivery of judgment and order dated 19-01-2018 being learnt by her. Therefore, her case is covered by the

exception to the normal rule as has been laid down in Arvind Kumar Srivastava (supra) and is not entitled to the same relief being given to Smt.

K.Swarnalata Devi and Smt. A. Kiranbala Devi. She could have joined with them in filing the writ petition which she failed and therefore, she is to be

blamed for herself. Her contention that the provisions of Article 14 have been violated by the State Government in not granting the relief as claimed by

her, is not sustainable in law.

[10] In view of the above and for the reasons stated hereinabove, the writ petition fails and is, accordingly, dismissed with no order as to costs.