K. Swarnalata Devi & Anr vs The State of Manipur & Ors

Heard Shri L. Shashibhushan, the learned counsel appearing for the petitioners and Shri K. Jagat, the learned Government Advocate appearing

for the State respondents.

The only prayer in the writ petition is to direct the respondents to regularise the services of the petitioners with effect from the date of their initial

appointment as the Data Compiler cum Registration Assistant on officiating basis vide order dated 18-12-1987 issued by the Director of

Industries, Manipur.

1 The facts and circumstances, as narrated in the writ petition, on the basis of which the instant writ petition has been filed by the petitioners are

that they were initially appointed as the Data Compilers on casual basis for a period of three months vide order dated 01-09-1980 issued by the

Director, Department of Commerce & Industries, Government of Manipur and their casual appointments were extended from time to time. While

the petitioners were serving in that capacity, the Director, Department of Commerce & Industries vide its letter dated 28-11-1987 requested the

State Government for grant of approval to the absorption of the petitioners as the Data Compiler cum Registration Assistant and on receipt of it

and after having considered the same, the Deputy Secretary (Industries), Government of Manipur conveyed the approval of the State Government

for absorption of the petitioners along with three others on officiating capacity as the Data Compiler cum Registration Assistant (hereafter referred

to as ""DCRA"") with the request to issue appointment orders immediately. Accordingly, the Director of Industries, Government of Manipur issued

the order dated 18-12-1987 absorbing the petitioners on officiating capacity to the post of Data Compiler cum Registration Assistant against clear

vacant posts.

3.2 When the services of some persons who were similarly situated and were in the officiating /ad-hoc capacity, were regularised in pursuance of a

policy decision, the petitioners were denied the benefit of such regularisation which prompted them to approach the Hon''ble High Court by way of

a writ petition being CR No. 55 of 1991 which was taken up and heard along with CR No. 64 of 1991. The Hon''ble High Court, after having

heard the parties, disposed of the same vide a common judgment and order dated 28-09-1994 with certain directions as mentioned therein but

while the said writ petitions were pending, the officiating service of Smt. Sapam Ibemnungshi Devi who was appointed along with the petitioners,

was regularised on the basis of the recommendation of a Screening Committee vide order dated 14-09-1994. In spite of the said directions

contained in the said common judgment and order, the respondents failed to take appropriate steps for regularisation of the services of the

petitioners and on the contrary, took a policy decision to abolish all the nine posts in the cadre of Data Compiler cum Registration Assistant with

the direction that the posts held by the petitioners shall stand automatically abolished once they reach the age of superannuation. Out of five

persons including the petitioners who were appointed on officiating basis, only one has been regularised and two others have retired on attaining

the age of superannuation.

3.3 Sometime in the year 2013, the State Government took a policy decision for regularisation of all direct recruit ad-hoc employees fulfilling the

conditions as prescribed in the O.M dated 03-10-2013 whereby it was decided to regularise the services of 288 direct recruit ad-hoc employees

who were appointed against Group-A, B, C and D posts in nineteen Departments and held their services for the last more than 15 years. Although

the petitioners fulfilled all the conditions as prescribed in the said O.M. dated 03-10-2013 and they were similarly situated with the said 288 direct

recruit ad-hoc employees, the non-consideration of the cases of the petitioners was discriminatory and arbitrary.

3.4 On 03-02-2015 the Director, Commerce & Industries, Government of Manipur, on the basis of a letter dated 16-01-2015 addressed to him

by the Deputy Director, wrote a letter to the Secretary/ Commissioner (Com. & Ind.), Government of Manipur requesting him to consider for

regularisation of the officiating services of the petitioners for the purpose of pensionary benefits, to which the Under Secretary (Com. & Ind.),

Government of Manipur vide its letter dated 07-12-2015 informed him that the Department of Personnel had not agreed to the proposal as there

was no clear Government policy decision/ rule for such regularisation of the officiating officials. Being aggrieved, the instant writ petition has been

filed by the petitioners on the inter-alia grounds that the inaction on the part of the respondents was arbitrary and illegal in view of the law laid

down by the Hon''ble Supreme Court in a catena of decisions.

The stand of the State Government as indicated in their affidavit filed on behalf of the respondent No.1 is that as per the recruitment rules, the

method of recruitment for the post of DCRA is 50% by promotion and 50% by direct recruitment. Out of nine posts, four posts were filled up by

direct recruitment and since there was no eligible candidate for appointment on promotion to the posts of DCRA, the petitioners were absorbed on

officiating capacity against the said remaining five posts of promotion quota as stop-gap arrangement. The Department was unable to consider for

regularisation of the petitioners because the O.M. dated 03-10-2013 provides for regularisation of the direct recruit ad-hoc employees and

moreover, when the Department of Personnel, Government of Manipur was consulted, it did not agree to the proposal as there was no clear

Government policy for such regularisation of the officials on ad-hoc basis.

The methods of recruitment recognised in the service jurisprudence are mainly - by direct recruitment; by promotion; by transfer/ deputation and

by absorption. However, in almost all the recruitment rules framed by the State of Manipur, except in respect of few, under the proviso to Article

309 of the Constitution of India, the methods of recruitment are confined to two only-one, direct recruitment and two, by promotion.

Regularisation is not one of the methods of recruitment recognised in the service jurisprudence but there are many instances where the

appointments on ad-hoc basis or on officiating capacity have been regularised by virtue of various policy decisions taken by the State Government

from time to time or on the basis of the directions given by the Hon''ble High Court in that regard.

Coming to the present case, there are certain facts and circumstances which need to be noted by this court while considering the issues involved

herein. Firstly, it is not in dispute that the petitioners along with three others were absorbed on officiating capacity to the posts of Data Compiler

cum Registration Assistant against the existing vacancies vide order dated 18-12-1987 issued by the Director of Industries, Manipur. In this

regard, the stand of the State Government as stated hereinabove is that since the petitioners were absorbed against the promotion quota, their

services could not be regularised by it and they were not similarly situated with the said 288 direct recruit ad-hoc employees. But it is nowhere

mentioned either in the letter dated 08-12-1987 conveying the approval for absorption or in the order dated 18-12-1987 that the petitioners have

been absorbed against the posts earmarked as the promotion quota. The order dated 18-12-1987 simply states that they were absorbed against

the posts created vide orders mentioned against their respective names. Moreover, even though it has been stated in the counter affidavit that four

persons have been appointed by way of direct recruitment as the Data Compiler Cum Registration Assistant, a copy of the appointment order is

not placed on record for perusal by this court. Secondly, although Smt. Sapam Ibemnungshi Devi who was absorbed vide order dated 18-12-

1987 along with the petitioners, her officiating/ ad-hoc appointment was regularised vide order dated 14-09-1994 denying such benefit to the

petitioners. It is hard to understand as to why the officiating appointments of the petitioners could not/ cannot be regularised in the same manner as

the officiating appointment of Smt. Spam Ibemnungshi Devi was regularised and if the stand of the State Government is considered to be correct, it

is not clear as to how she could be regularised against the post of promotion quota. Thirdly, in terms of the directions of the Hon''ble High Court

and in particular, the direction No.2 contained in the order dated 28-09-1994 passed in CR No.55 of 1991, the officiating services of the

petitioners appear to have been allowed to continue as on date. Even after the posts held by the petitioners having been included in the down-sizing

of the department, they appear to be allowed to continue with the direction that the said posts shall stand automatically abolished when they attain

the age of superannuation. It further appears that all except the petitioner No.2, have retired on attaining the age of superannuation and the

petitioner No.2 is likely to meet the same fate. Fourthly, keeping in mind the background and the reason as to why the regular employees are

allowed to enjoy pension after their retirement, it is unfortunate to think that the State Government will let the petitioner No.2 also go home empty

handed even after rendering her service till the age of superannuation as that of a regular employee.

Regularisation cannot indubitably be claimed as of right but the State Government being an institution, ought to act fairly and reasonably. In other

words, in a democracy the Government is formed by the persons who are elected by the majority of the people; the employees of the Government

are public servants and the money held by the Government is public money. Therefore, the Government is expected not to do anything which is

contrary to the public interest and moreover, before any action is taken by the Government, its likely consequence ought to be taken into account.

Considering the facts and circumstances as stated hereinabove and in particular, the fact that the petitioners have rendered their services for more

than thirty years, this court is of the view that it is the bounden duty of the State Government to consider the cases of the petitioners sympathetically

for regularisation so that they go home after retirement with certain benefits.

In view of the above, the instant writ petition is disposed of with the direction that the respondents shall consider the cases of the petitioners for

regularisation within a period of three months from the date of receipt of a copy of this judgment and order and issue a speaking order in respect

thereof.