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Judgment
Heard Mr. H.S. Paonam, learned Sr. counsel assisted by Mr. N. Bipin, learned counsel for the petitioner in W.P.(C) No. 681 of 2013. Also heard Mr. Kh. Tarunkumar, learned counsel for the petitioner in W.P.(C) No. 1018 of 2015. Also heard Mr. Y. Nirmolchand, learned counsel for the respondent no. 2 and Ms. Th. Sobhana, learned G.A. for the State respondents.
These two writ petitions namely, W.P.(C) No. 681 of 2013 and W.P.(C) No. 1018 of 2015 are clubbed and heard together considering the commonality of issues involved and are disposed of by this common judgment.
W.P.(C)No. 681 of 2013 has been filed by one, Shri H. Rajen Singh seeking for a direction to consider his case for promotion to the post of Assistant Engineer in the IFCD, Manipur. During the pendency of the writ petition, the final seniority list of the Section Officers came to be published vide seniority list dated 25.11.2015 in which the name of the petitioner has been included amongst the Section Officers, Grade-I Mechanical Degree Holders of the IFCD, Manipur. However, the final seniority list has been
challenged by one Dhruva Oinam who is the petitioner in W.P.(C) No. 1018 of 2015 contending, inter-alia, that the said H. Rajen Singh and 7 (seven) others were appointed under similar circumstances and under the same order by way of conversion from Work-charged establishment to regular establishment under a policy decision which debars further benefits/promotion. The said Sri H. Rajen Singh has been impleaded as respondent No. 3 and six others as respondents No. 4 -10 in W.P.(C) No. 1018 of 2015 filed by the said Dhruva Oinam.
The case of Sri H. Rajen Singh, petitioner in W.P.(C) No. 681 of 2013 is that the petitioner was initially appointed in the Work-charged establishment of the IFCD, Manipur as a Technical Assistant in the year 1983 and subsequently, on the basis of a policy decision of the State Government which provided for conversion to regular establishment of those Workcharged employees who had rendered 10 (ten) years or more in service, the services of the petitioner along with other eligible persons were converted to regular establishment in the posts of Section Officers vide order dated 05.12.1998. It may be stated that the private respondents no. 4 to 10 in W.P.(C) No. 1018 of 2015 who were similarly situated as the petitioner were also converted to regular establishment as Section Officers along with H. Rajen Singh under the said policy decision taken by the authority which was notified on 16.04.1987, a copy of which has been annexed by the petitioner, Sri Dhruba Oinam in his petition W.P.(C) No. 1018 of 2015 as Annexure R/2. The relevant portion of the said policy decision for the purpose of this case is reproduced hereinbelow: "(iii) The posts being created for regularisation of the eligible WorkCharged employees shall stand abolished automatically in the retirement on superannuation or termination of the services of the incumbent as the case may be."
On the basis of the said policy decision notified on 16.04.1987, the State Government issued an order on 20.11.1998 for conversion of 1002 Work-charged posts to regular posts (plan) in the Irrigation and Flood Control Department as reproduced hereinbelow : "GOVERNMENT OF MANIPUR
SECRETARIAT IFC DEPARTMENT
ORDER BY THE GOVERNOR : MANIPUR
Imphal, the 20th November, 1998
No. 4/2/90-IFC : In pursuance of the Government decision circulated by the D.P. dated 15th April, 1997 vide their letter No. 53/54/09(Pt) the Governor of Manipur is pleased to order the conversion of 1002 (one thousand and two) Work-charged posts in to regular posts in to regular posts (Plan) of Irrigation & Flood Control Department as detailed below :-
Sl. No
Name of Post CE (Wing-I) CE (Wing-II) Total
1 2 3 4 5
1 Section Officer 51 31 82
2 Drilling - 3 3
3
..... ..... ..... .....
4 ..... ..... ..... .....
... ..... ..... ..... .....
... ..... ..... ..... .....
38 Waiter Carrier 1 - 1
39 Godown Helper 7 - 7
Total Post : 685 317 1002
This conversion shall be effective from the date the incumbents holding the workcharged posts are regularized brought into regular establishment.
The posts so converted as regular ones from work-charged establishment shall stand abolished automatically on the retirement on superannuation on termination of the services of the incumbents concerned.
This issues in consultation with Finance Department, Manipur.
By orders & in the name of the Governor,
Sd/-
(Kh. Raghumani Singh)
Deputy Secretary (DP)
Government of Manipur"
On the basis of the aforesaid policy decision of the State Government, after posts were created on 20.11.1998, Sri H. Rajen Singh and other eligible Work-charged employees including the respondents no. 4-10 in W.P.(C) No. 1018 of 2015 were appointed as Section Officers in the regular establishment by way of conversion vide order dated 05.12.1998 [Annexure A/2 to W.P.(C) No. 618 of 2013].
It is the case of the petitioner, Sri H. Rajen Singh in W.P.(C) No. 681 of 2013 that the petitioner having been appointed as Section Officer on regular basis by way of conversion in terms of the aforesaid policy decision was borne into the cadre of Section Officer in the regular establishment of the IFCD and as such he is to be treated as a regular Section Officer and hence, is entitled to be included in the seniority list of Section Officers and also entitled to be considered for promotion to the higher post of Assistant Engineer as he fulfills all the essential/required qualifications as per the relevant Recruitment Rules. As to the appointment of the petitioner in the regular establishment as Section Officer in the IFCD by way of conversion and about the eligibility of the petitioner under the Recruitment Rules for the higher post of Assistant Engineer, these are not in dispute. According to Sri H. Rajen Singh, his name has been included in the final seniority list of Section Officers as notified in the order dated 25.11.2015 and is entitled to be considered for promotion to the higher post of Assistant Engineer, which has been seriously contested by the petitioner Sri Dhruva Oinam in W.P.(C) No. 1018 of 2015.
Sri Dhruba Oinam, the petitioner in W.P.(C) No. 1018 of 2015 has objected the claim of Sri H. Rajen Singh, the petitioner in W.P.(C) No. 681 of 2013 on the following, inter alia, grounds.
Firstly, it has been contended by Mr. Kh. Tarunkumar, learned counsel for Sri Dhruva Oinam in W.P.(C) No. 1018 of 2015 that the private respondents including Sri H. Rajen Singh could not have been included in the final seniority list of the Section Officers. According to him though they were converted to regular establishment as Section Officers under certain policy of the Government, they were not entitled to any further benefits. In this regard, Mr. Kh.Tarunkumar has drawn attention of this Court to the Office order dated 19.03.2001 containing the said policy decision of the Government, in which it has been provided under Para No. 9 thereof that, "9. Conversion of Work Charge Staff to regular establishments.
Conversion of Casual Staff to work charge and work charge staff to regular establishments notified by the State Government was a one time measure. Further promotion/appointment/benefits under the scheme shall not be extended with immediate effect."
Sri Kh. Tarunkumar, submits that once such Work-charged employees have been given the benefit of conversion to regular establishment, no further benefit either by way of promotion or otherwise can be given to such converted employees as they were given the benefit of regularization once. According to him since the private respondents were already given benefit under the scheme by converting to regular establishment, they cannot be included in the seniority list of regular employees of the Section Officers, much less considered for promotion to the higher post of Assistant Engineer as these would amount to further benefits.
Secondly, it has been submitted by Sri Kh. Tarunkumar that the State Government had taken a stand in an earlier proceeding before this Court i.e. in W.P.(C) No. 1 of 2012 which was filed by the same petitioner, Sri H. Rajen Singh, in which the State Government in their affidavit-inopposition filed on 07.09.2012 had stated in the Para No. 6 thereof that for the purpose of seniority list, there is no provision for inclusion of Workcharged employees who were converted into regular establishment as clarified by the Administrative Department as recorded in Note No. 74 of the concerned Government file. A copy of the said file noting was annexed to the said affidavit-in-opposition as Annexure R/4 which reads as follows : "Ref. note ante.
The clarification sought by IFC Department as to whether W/C employees converted into regular establishment shall be included in the seniority list of Section Officer Gd-I and considered for appointment on promotion to the higher post was processed and examined in FC/PIC''S/O file No. 16/8/2009-FD(PIC) and it is to mentioned that as per para 9 of Office Memorandum No. 1/15/2000-FC, dated 19/03/2001, conversion of Casual Staff to W/C and W/C staff to regular establishment was a one time measure and further promotion/appointment /benefits under the scheme shall not be extended.
As such, A.D.C clarified that it will not be appropriate to include W/C staff converted into regular in the seniority list of Section Officer Gd-I as the benefit of further promotion is not allowed.
Under Secretary (Finance/PIC)
Addl. Secretary/IFCD"
Sri Tarunkumar submits that in terms of the aforesaid file noting, the Government respondents reiterated the same decision in Para No. 8 of the said affidavit-in-opposition stating that the Administrative Department, Government of Manipur made a clarification that it will not be appropriate to include the Work-charged employees who had been converted into regular establishment in the seniority list of the Section Officers, GradeI. Sri Kh. Tarunkumar submits that the State Government has now taken a contrary stand in the present proceedings holding that the private respondents are entitled to be included in the seniority list. He submits that though the State Government has not filed any affidavit-in-opposition in W.P.(C) No. 681 of 2013, the authorities have produced the relevant set of documents i.e. the file bearing note no. 74 as quoted above as well as all the decisions of the Cabinet taken on 07.03.2001 which were implemented by the Government vide Office Memorandum dated 19.03.2001. Therefore, Sri Kh. Tarunkumar, submits that Government cannot take a different stand now for including private respondents in the seniority list contrary to the stand taken by the State before this Court on all earlier occasion.
Sri Kh.Tarunkumar submits that the aforesaid inconsistent plea taken by the State respondent is not permissible also for the reason that it is barred by the principle contained in the Order 6 Rule 7 of the CPC which prohibits taking any new ground. That apart, he submits that such contrary stand taken has been held to be impermissible in Joint Action Committee of AIR Line Pilots'' Association of India v. DG of Civil Aviation reported in (2011) 5 SCC 435. The Hon''ble Supreme Court in the said case of Joint Action Committee (supra) relying on the decision in R.N. Gosain V. Yashpal Dhir, (1992) 4 SCC 683 held that : "10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that ''a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage."
He submits that similar principle has been expressed in Lloyd Electric and Engineering Limited V. State of Himachal Pradesh and
Others, (2016) 1 SCC 560 wherein the Hon''ble Supreme Court held that the State Government cannot speak in two voices. Mr. Tarunkumar submits that in the present case, it is clear that the State Government''s stand taken now contrary to the earlier stand taken is not permissible. He submits that there was a cabinet decision taken which has been reflected in the order dated 19.03.2001 to the effect that the conversion of casual employees to work-charged and the work-charged to regular establishment is a one time measure and no further promotion/appointment or benefit shall be extended. Thus, the present stand taken by the State in including the private respondents in the seniority list by giving another benefit is contrary to the said policy decision taken by the State Government. He submits that in Noida Enterpreneurs Assn. Vs. NOIDA,(2011) 6 SCC 508 the Honb''ble Supreme Court held that : "25. It is a settled proposition of law that whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous contrivance on the principle of quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud, which means ''whenever a thing is prohibited, it is prohibited whether done directly or indirectly''. (See Swantraj V. State of Maharashtra , CCE V. Acer India Ltd. and Sant Lal Gupta V. Modern Coop. Group Housing Society Ltd."
Thirdly, Sri Kh. Tarunkumar submits that this issue has been more or less decided by this Court while this Court considered the application filed by the petitioner, Mr. H. Rajen in MC[W.P.(C)] No. 8 of 2016 in which this Court had observed that the order dated 02.06.2010 passed by the Hon''ble Gauhati High Court cannot be said to have settled the issue involved namely whether the private respondents are entitled to be included in the list of Section Officer Grade-I when the State Government has taken a decision contrary thereto. He has thus objected to the stand taken by the State authorities that the inclusion of private respondents in the seniority list including Sri H. Rajen was on the basis of the order passed by the Hon''ble Gauhati High Court, Imphal Bench in W.P.(C) No. 545 of 2009 on 02.06.2010. The relevant portion of the said order dated 02.06.2010 passed in W.P.(C) No. 545 of 2009 relied on by the respondents reads as follows :
"(3).... It is not dispute that the rule regulating the service conditions of Section Officer Grade-I and administrative instructions issued by the Government in this regard, do not recognize bifurcation or trifurcation of the cadre of S.O. Grade-I as (i) appointees by a direct recruitment on the recommendation of a Selection Committee/DPC, (ii) appointees by regularization to the post of S.O. Grade-I on the basis of Selection Committee, and (iii) appointees by absorption to the post as direct recruits. Once a person has been appointed under any of the methodologies mentioned above, he is to be treated as an officer born to the cadre of Section Officer Grade-I from the date on which he is appointed/absorbed or regularized.
(6) On consideration of the submission made by the learned counsels for the parties and the documents available on record, this Court is of the opinion that the communication dated 31-08-2009 (Annexure-A/16) which seeks to lay down certain conditions for determination of seniority of S.O. Grade-I, is an obstacle in the finalization of seniority list of S.O. Grade-I and as such, the communication dated 31-08-2009 (Annexure-A/16) is hereby interfered with.
(7) In view of the above, this writ petition is disposed of by directing the respondents to finalize the tentative seniority list dated 31-08-2009 (Annexure A/16), after disposing of objection/representation filed by the concerned incumbents, within a period of four months from the date of receipt of a certified copy of this order. It is made clear that while determining the final seniority list of S.O. Grade-I, the authority shall be guided by the administrative orders issued in this regard by the Department of Personnel and Law laid down by this Court as well as the Apex Court."
Mr. Kh. Tarunkumar, submits that when the Hon''ble Court passed the aforesaid order on 02.06.2010, the Office Memorandum dated 19.03.2001 which provided that no further promotion/appointment/benefit under the scheme shall not be extended was not brought to the notice of the Hon''ble High Court. This factum was given due cognizance by this Court while passing order in the said MC[W.P.(C)] No. 8 of 2016 as mentioned in Para No. 6 of the said order, the relevant portion of which is reproduced hereinbelow : "[6] In view of the above, this court is of the prima facie view that the order dated 02-06-2010 passed by the Hon''ble Gauhati High Court, Imphal Bench cannot be said to have settled the issue involved herein namely whether the private respondents including the applicant are entitled to be included in the seniority list of Section Officer Grade-I when the State Government has taken a decision contrary thereto."
Sri Tarunkumar submits that, this Hon''ble Court had clearly observed in the said Misc. case that since the Office Memorandum dated 19.03.2001 was not brought to the notice of the Court when the Court passed the order on 02.06.2010 in W.P.(C) No. 545 of 2009, it cannot be said that the issue regarding finalization of seniority list of the Section
Officers has been finally settled as claimed by the State respondents as well as by private respondents in the present proceedings.
Fourthly, Mr. Kh. Tarunkumar contends that the State Government had made it very clear as evident from the letter dated 20.07.2010 from the Additional Secretary (Finance), Government of Manipur addressed to the Chief Secretary, IFCD, Manipur that the names of Sri H. Rajen Singh and other converted Work-charged employees cannot be included in the MGEL. In the said letter it has been stated that at the time of updation of the MGEL sanctioned strength list, the Work-charged employees converted to regular establishment are included in the sanctioned strength. However, as these posts are not regular i.e. as these will be abolished when the incumbents retire or expire, the inclusion of their posts as sanctioned strengths in the MGEL will lead to frequent changes in the sanctioned strength. It was thus stated that if their strength are included then there is the need for deletion and addition of these strength whenever the incumbents get transferred from one DDO/Office. The said letter further stated that in order to avoid this, the sanctioned strengths of these posts as entered now in the MGEL need to be deleted and instead entered as 0 (zero) as has been followed in the MGEL lists of PWD and PHED. Mr. Kh. Tarunkumar therefore, submits that as these posts do not form any part of sanctioned strength of Section Officers, there is no reason why the posts held by the respondents can be included in the final seniority list of Section Officers. He has also drawn attention of this Court to the communication of the then Chief Engineer, IFCD, Manipur to the State Government on 01.10.2011 to intimate as to whether the persons who are converted to regular establishment can be considered for promotion to higher post and whether they can be included in the seniority list of regular staff. He submits that unfortunately, the authorities never made any clarification in that regard. Sri Tarunkumar submits that in any event, it may not make any difference, in view of the stand taken by the State respondents in their affidavit-in-opposition in W.P.(C) No. 1 of 2012 and also the file noting No. 74 as referred to above, as they cannot be included in the seniority list.
Sri Kh. Tarunkumar submits that it has been made clear in para no. 9 of the Office Order dated 19.03.2001 that no further promotion/appointment under the scheme can be granted. However, the private respondents (i.e., Sri H. Rajen Sigh and others) inspite of such limitations and denial of any future benefits after regularization by the said Office Order have not challenged the said Office Order.
Sri Tarunkumar submits that apart from inconsistent pleas taken by the State respondents in these petitions, the fact remains that for the stand taken to include the converted Work Charged staff to the regular establishment in the seniority list is not supported by any record, though the respondents had relied on the relevant records while taking the specific stand in the earlier counter affidavit filed in WP(C) No. 1 of 2012. Accordingly, he submits that such a changed stand taken by the respondents without any reference to the records cannot be accepted. In this regard, Sri Tarunkumar has relied on the decision of the Hon''ble Gauhati High Court rendered in Dage Tarak & Ors. Vs. State of Arunachal Pradesh, (2010) 2 GLT 377 by referring to para 9 of the said judgment wherein it was held that a Court would not accept such averments as correct and acceptable in absence of supporting documents borne on record, and mere statements that there was administrative exigency and public interest in passing any order relaxing the particular provision of the rules would not be enough to establish the pleaded case of the authorities unless they substantiate the same by producing the relevant records. Sri Tarunkumar submits that in the present case while the authorities took the stand that the converted Work Charged employees to regular establishment should be included in the seniority list, it is not supported by any material.
Sri Tarunkumar submits that even if the State authorities have taken a new stand, it should be supported by reason which has not been done so in the present case. He submits that any change in the policy decision of should be accompanied by reasons, relying on the decision of the Hon''ble Supreme Court in Sindhi Education Society and Anr. Vs. Chief Secretary, Govt. of NCT of Delhi, (2010) 8 SCC 49. The Hon''ble Supreme Court held in the said case that as and when the Government changes its policy decision it is expected to give valid reasons thereof and act
in the larger interest of the entire community rather than a section thereof and it is a settled canon of administrative jurisprudence that State action must be supported by some valid reasons and should be upon due application of mind. Sri Tarunkumar submits that in the present case, no such reason has been assigned in affidavit-in-opposition for taking a different stand as regards the inclusion of the private respondents in the seniority list which they declined to do earlier. Further, since the authorities had taken a policy decision earlier that no further benefit/promotion shall be given to the converted Work Charged employees, the said policy could not have been changed without giving any reasons. Thus, the authorities had acted illegally by making changes in the decision to include the converted Work-charged employees in the seniority list.
Sri Kh. Tarunkumar submits that the State respondents relied on the order dated 02.06.2010 passed by the Hon''ble Gauhati High Court in W.P.(C) No. 545 of 2009 to justify inclusion of the private respondents in the seniority list. However, perusal of the same reveals that the Hon''ble Court while passing the order did not refer at all to the policy decision taken by the State Government not to accord further promotion/appointment under the scheme. Further, the Court had merely directed finalization of the tentative seniority and there was no direction to include the private respondents in the seniority list. He submits that the issues involved in W.P.(C) No. 1018 of 2015 were not raised nor discussed in W.P.(C) No. 545 of 2009. Accordingly, it cannot be said to be valid precedence. He submits that in Uttaranchal Road Transport Corpn. & Ors. V. Mansaram Nainwal, (2006) 6 SCC 366, the Hon''ble Supreme Court held that according to the well-settled theory of precedents, every decision contains three basic postulates : (i) findings of material facts, direct and inferential. An inferential finding of fact is the inference which the judge draws from the direct, or perceptible facts;
(ii) statement of the principle of law applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of the above.
It has been submitted by Mr. Kh. Tarunkumar that the aforesaid decision rendered by the Hon''ble High Court on 02.06.2010 did not raise any of the relevant facts/issues involved in the present writ petition and
which merely directed to finalise the seniority list and as such it cannot be said to be valid precedent.
Sri Tarunkumar further submits that it has also been held by the Hon''ble Supreme Court in State of Orissa & Anr. V. Mamata Mohanty, (2011) 3 SCC 435 that : "64. ''Incuria'' literally means ''carelessness''. In practice per incuriam is taken to mean per ignoratium. The courts have developed this principle in relaxation of the rule of stare decisis. Thus the ''quotable in law'', is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority."
Mr. Kh. Tarunkumar therefore, submits that since the aforesaid order dated 02.06.2010 passed by the Hon''ble Court was in ignorance of the policy decision, the same order is to be treated merely as per-inquiriam and hence, it cannot be relied on by the authorities. Accordingly, it has been submitted that since the impugned seniority list was entirely based on the aforesaid order passed in W.P.(C) No. 545 of 2009, for reasons discussed above, inclusion of the private respondents in the seniority list is illegal and liable to be set aside.
He further submits that since various averments made in the petition W.P.(C) No. 1018 of 2015 have not been effectively denied by the respondents by filing their respective affidavits-in-opposition, and as such, averments made in the petition shall be deemed to have been admitted. Accordingly, appropriate relief can be granted in favour of the petitioner. Sri Tarunkumar submits that as the Chief Engineer who had prepared the seniority list has not filed affidavit-in-opposition to controvert the averments and pleas taken in this writ petition, these shall be deemed to have been admitted relying on the decision of the Hon''ble Gauhati High Court rendered in Rajia Khatun Vs. State of Assam & Ors., (2001) 3 GLT 262 relying on the decision of the Hon''ble Supreme Court in Smt. Naseem Bano vs State Of U.P. and others, (1993) SC 2592. Sri Tarunkumar also submits that the private respondents also have not filed affidavit-in-opposition.
Sri Y. Nirmolchand, learned counsel for the respondent No. 2, Chief Engineer submits that there is no need to file affidavit-in-opposition by the Chief Engineer in view of the fact that the Administrative Department, respondent No. 1 herein had already filed their affidavit-in-opposition in this writ petition. Sri Nirmolchand, therefore, submits that since the respondent No.1 filed the affidavit-in-opposition it cannot be said that the averments made by the petitioner had not been contested and as such he submits that the aforesaid decision in Rajia Khatun (supra) is not applicable in the present case.
Sri Y. Nirmolchand, referring to Para No. 9 of the Office Order dated 19.03.2001, submits that it cannot be said that the Work-charged employees who have been converted to regular establishments would not be entitled to benefits of promotion as the said paragraph does not provide for such denial of benefits to those who have been converted to regular establishment. He also submits that the Hon''ble Court in W.P.(C) No. 545 of 2001 had decided about the nature of appointment/absorption of the Workcharged employees and held that such regularized Section Officers would be entitled to be included in the final seniority list and decision of the authority to include the private respondents in the seniority list was based on the said order. He submits that order passed in W.P.(C) No. 545 of 2001 has not been challenged by anybody including the present petitioner, Dhruva Oinam neither modified nor set aside by any higher judicial forum. He also submits that unfortunately, on the earlier occasion, when the State respondents filed the affidavit-in-opposition holding that those Work-charged employees who were converted to regular establishment cannot be included in the seniority list, it was so done in ignorance of the order passed in W.P.(C) No. 545 of 2009. However, after the said order passed in W.P.(C) No. 545 of 2009 was brought to the notice of the authorities, they decided to include the converted Work-charged employees to regular Section Officers in the seniority list of Section Officers.
Ms. Shobhana, Ld. Government Advocate has also submitted in similar lines contending that the counter affidavit filed by the State respondent No. 1 on 04.08.2016 at para 5 thereof, it has been stated that the existence of the High Court order dated 02.06.2010 in WP(C) No. 545 of 2009 which had attained finality was not discussed nor appreciated as the same was not reflected at the time of filing affidavit-in-opposition to the writ petition in WP(C) No. 1 of 2012 due to oversight and lack of knowledge and that after coming to know of the said order dated 02.06.2010, the Government felt that the directions of the Hon''ble Gauhati High Court should prevail over executive instructions and orders and hence, it was decided that converted Work Charged staff/Section Officer Grade-I are to be placed in the seniority list and they are to be considered for promotion if found eligible.
Sri H.S. Paonam, Ld. Sr. Counsel appearing for H. Rajen Singh, petitioner in W.P.(C) No. 681 of 2013 (who is also respondent no. 3 in W.P.(C) No. 1018 of 2015) also submitted that once the service of the petitioner was converted to regular establishment of Section Officers, there was no reason to deny the status of a regular appointee to the post of Section Officer. In that event, he would be entitled to the rights and privileges attached to the post of Section Officer. He also heavily relied on the order dated 02.06.2010 passed in W.P.(C) No. 545 of 2009 which directed for finalization of seniority list of Section Officers after considering the objections of the incumbents. He submits that in pursuance of the said direction, the authorities after considering the objections of the incumbents finalized the seniority list of the Section Officer in which the petitioner had been included. He also submits that the said order dated 02.06.2010 passed in W.P.(C) No. 545 of 2009 has not been challenged by anyone including Sri Dhruva Oinam in W.P.(C) No. 1018 of 2015. Hence, he cannot now assail the final seniority list of the Section Officers.
Analysing the respective submissions of the parties it is evident that the entire edifice of the elaborate submissions advanced by Sri Tarunkumar on behalf of Sri Dhruva Oinam, the petitioner in W.P.(C) No. 1018 of 2015 rests on para 9 of the order dated 19.03.2001 containing the policy decision of the State Government which mentions that conversion of casual staff to Work-charged and Work-charged staff to regular
establishment was a onetime measure and further promotion/ appointment/benefit under the scheme shall not be extended with immediate effect. According to Sri Tarunkumar, once benefit had been given under the aforesaid scheme, no further promotion/appointment/benefit shall be extended. Sri Tarunkumar, submits that the private respondents in W.P.(C) No. 1018 of 2015 including Sri H. Rajen Singh having been given the benefit of conversion to regular establishment as Section Officer in the IFCD under the aforesaid policy decision, cannot be given any further promotion/ appointment/benefit. If that is so, these private respondents cannot be included in the final seniority list prepared for the regular Section Officers, not to mention of considering promotion to the higher post of Assistant Engineer. Sri Tarunkumar has faulted with the inclusion of these converted Section Officers on other grounds as discussed above.
On closure scrutiny, it will be evident that the submissions of Sri Tarunkumar, Ld. Counsel for the petitioner, Sri Dhruva Oinam, however, are bereft of merit as the petitioner has misconstrued the said para 9 of the office order dated 19.03.2001.
It is to be noted that the office order dated 19.03.2001 containing the said provision under para 9 was issued after conversion of the private respondents in W.P.(C) No. 1018 of 2015 to regular establishment of Section Officers in the year 1998. Therefore, it is doubtful whether an order issued subsequently in 2001 after the conversion of the private respondents to regular establishment in 1998 could adversely affect any vested rights created in 1998. That apart, it is to be noted that the State Government took the policy decision in 1997 as evident from the official letter dated 16.04.1997 (Annexure-R/2 to the reply affidavit filed by the petitioner, Sri Dhruva Oinam) by which the Cabinet approved the report of the Cabinet Sub-Committee for regularisation of the Work-charged/casual/muster roll employees and others of the Engineering Departments. The Cabinet also decided for creation of posts for regularisation of the eligible Work-charged employees which would stand abolished automatically on retirement on superannuation or termination of service of the incumbents as the case may
be. Pursuant to the said Cabinet decision in 1997, the authorities created 1002 posts vide order dated 20.11.1998. Thereafter, vide order dated 05.12.1998 the services of the private respondents who had completed 10 years of service in the Work-charged establishment were converted to regular establishment stipulating that the conversion is strictly against the posts created vide order dated 20.11.1998 and these posts shall stand automatically abolished as and when the incumbents retire on superannuation or on termination of the services. In other words, the services of the private respondents had been already converted to regular establishment as Section Officers prior to the issuance of the order dated 19.03.2001 on which much reliance has been placed by Sri Tarunkumar.
It may be noted that the order dated 19.03.2001 was issued in terms of another decision taken by the Cabinet on 07.03.2001 and not on the basis of the Cabinet decision taken in 1997, for downsizing of the Government which provided for termination of all appointments on direct recruitment on part-time/contract/adhoc/ substitute/casual basis etc. It also provided for cancellation of the result of the DPCs which had not been announced so far and recommendation of DPCs which had been notified but orders for appointment had not been issued were also sought to be cancelled. By the said order dated 19.03.2001, ban was also imposed on filling up of promotion vacancies on regular basis for a period of 3 (three) months till review of the cadre structure. It also provided for abolition of all direct recruitment posts lying vacant as on 19.04.1999 excluding the posts to be filled up in respect of Police and Jail Departments. It was also provided that ban on direct recruitment will cover all CCS, CPS and also the Autonomous Bodies/Local Bodies/Grant-in-aid Institutions. It was in that context that the Government decided as contained in the order dated 19.03.2001 that conversion of casual staff to Work-charged and Work-charged to regular establishment which was based on the earlier Cabinet decision taken in 1997 would be a onetime measure and no further promotion/ appointment/benefits under the scheme shall be extended. The scheme referred to in para 9 is the scheme prepared in terms
of the earlier Cabinet decision of 1997 which provided for conversion of Work-charged employees to regular establishment under which the private respondents were converted as regular Section Officers. It is in this context that the denial of further promotion/appointment/benefits as provided in para 9 of the order dated 19.03.2001 has to be understood. The restriction imposed by para 9 of order dated 19.03.2001 is on further conversion of casual staff to Work-charged and Work-charged staff to regular establishment in terms of the earlier decision taken by the Cabinet in 1997. In other words, this order dated 19.03.2001 merely puts an embargo on further benefits which could be given to those casual/muster roll or Workcharged employees who had completed requisite years of service to better status or regular establishment who were not yet converted to regular establishment etc. as the case may be by making it clear that the earlier benefit of conversion of casual/muster roll or Work-charged establishment to regular establishment etc. was a onetime measure and not to be repeated. Had this order dated 19.03.2001 not been issued, those employees working on casual basis and having fulfilled the requisite service can claim to be converted to Work-charged establishment and similarly those Work-charged staff having requisite service could have claimed for conversion to regular establishment in terms of the earlier policy decision taken by the State Government in 1997, even after conversion of 1002 Work-charged posts to regular establishment in the IFCD vide order dated 20.11.1998. Thus, by virtue of Para 9 of the Government order dated 19.03.2001, apart from the private respondents and such other Work-charged employees who were already converted to regular establishment in 1998 in terms of the aforesaid decision of the Cabinet taken in 1997, others in the Work-charged establishment even if they fulfill the requisite eligibility criteria cannot make any claim for their conversion to regular establishment. Thus, by the subsequent policy decision taken by the State as contained in the order dated 19.03.2001, such benefit will cease to be extended to such employees by declaring that earlier benefit given would be deemed to be only a onetime measure and will not be extended any further to other claimants. It is for this reason that in para 9 it has been mentioned that further promotion/appointment/benefit "under the scheme" shall not be extended with immediate effect. What has been denied under the aforesaid para 9 of
the order is of any further promotion/appointment/benefit under "the same scheme". This "scheme" is with reference to the policy decision taken by the Cabinet in 1997 and no other scheme was contemplated nor prepared under the Cabinet decision taken on 07.03.2001 on the basis of which the Government order dated 19.03.2001 was issued. The bar contained in Para 9 does not mean that those who had been already granted benefits under the scheme shall not be given further benefits even if these benefits would accrue on their own rights independent of the scheme. It may be noted that the denial of further promotion/appointment/benefit as mentioned in para 9 of the order dated 19.03.2001 is qualified by the words "under the scheme". As a result, if a person claims any promotion/appointment or benefit which is not under the scheme but outside or beyond the scheme there is no reason why the same should be denied. The benefits, the private respondents are claiming are not benefits "under the scheme" as the scheme was merely for the purpose of conversion from casual to Work-charged establishment and Work-charged to regular establishment which the private respondents had already availed of, and the said scheme by virtue of the order dated 19.03.2001 is now not actionable. The benefits claimed by the private respondents are the right to be included in the seniority list and right to be considered for promotion to the higher post by virtue of being regular Section Officers and not on the basis of the scheme. These rights and benefits claimed by the private respondents are not under "the said scheme" but are independent of the scheme which flow naturally out of their status of being regular Section Officers in normal course. Therefore, the bar placed on further promotion/ appointment/benefits as contemplated under para 9 of order dated 19.03.2001 is to be confined to such benefits contemplated under the same scheme framed by the Government in terms of the earlier policy decision taken in 1997 and not to any other benefits which are outside the scheme.
In the present case, as mentioned above, the private respondents had been already appointed as regular Section Officers by way of conversion under the scheme and they are not seeking further benefit under the same scheme. The claims of the private respondents to be included in the seniority list as well as for consideration for promotion to the post of Assistant Engineer are not under the scheme but are natural
consequences of being in the regular establishment as Section Officers. Accordingly, this Court is of view that the contentions of the petitioner are entirely misplaced.
What Sri Tarunkumar is endeavouring to do is to read into para 9 of the order dated 19.03.2001 something which are not there and also by ignoring the qualifying words "under the scheme". What he submits, in effect, is that a person who has availed the benefit under the scheme of conversion cannot be granted any further benefit even if it arises outside and beyond the scheme. He would like this Court to accept that a person who has been given the benefit of conversion under the policy decision/scheme cannot be granted any further promotion/ appointment/benefit. This contention could have been accepted had para no. 9 categorically stated so in unambiguous words. But, para no. 9 does not say so. What it provides is that such conversion/appointment is a one time measure and the scheme cannot be invoked for any further benefits to those who may be otherwise covered by the scheme. It does not say that once a person gets benefit under the scheme, he cannot get any further benefit even if such a benefit is independent of the scheme. The construction relied upon by Sri Tarunkumar on the contents of para no. 9 of the order dated 19.03.2001 is contrary to the golden rule of interpretation. Para 9 has to be understood in terms of the words and expression used therein, not by adding to it nor by ignoring any portion of it.
Further, by adopting the rule of purposive interpretation, when one sees the background and purpose of inserting para 9 in the Government order dated 19.03.2001, it can be ascertained that the reason for putting a bar on further benefit is because of the downsizing exercise undertaken by the State Government by putting a bar on further benefit under the scheme prepared on the basis of the Cabinet decision of 1997 for conversion of Work-charged employees to regular establishment. Thus, once one understands the context in which the said para 9 was inserted in the Government order dated 19.03.2001, it would be seen that the contentions
of the petitioner in W.P.(C) No. 1018 of 2015 would have no legs to stand on.
Accordingly, this Court holds that the bar placed by the order dated 19.03.2001 as contained in para 9 will not be applicable in the case of the private respondents. Resultantly, the other contentions of the petitioner in W.P.(C) No. 1018 of 2015 represented by Sri Tarunkumar Singh, would be rendered devoid of any merit and need not be elaborately addressed.
In view of the conclusions arrived at by this Court, it would be evident that the charge of inconsistent stand being taken by the authorities as alleged by the petitioner would have no substance. This Court holds that the stand taken by the respondent authorities in including the private respondents in the final seniority list of Section Officers is unexceptionable. This is the correct approach adopted by the authorities.
As regards reliance placed by the respondent authorities on the order dated 02.06.2010 passed in W.P.(C) No. 545 of 2009, the same can be also faulted with. Even if the said order is not relied upon, the private respondents for the reasons discussed above would have a vested right to be included in the seniority list of the regularly approached Section Officers and to be considered for promotion to higher posts in accordance with rules by virtue of holding regular posts of Section Officers.
As far as non filing of affidavit-in-opposition by the Respondent no. 2 or the private respondents in W.P.(C) No. 1018 of 2015 is concerned, it would not make any difference as the Respondent no. 1 had filed affidavit-inopposition contesting the claim of the petitioner therein.
For the same reasons discussed above, the contents of the file noting relied on by the petitioner, Sri Dhruva Oinam, wherein the Administrative Department had noted that it would not be appropriate to include Work-charged staff converted to regular establishment in the seniority list of Section Officers as the benefit of further promotion is not allowed, cannot be held to reflect the correct view of the provision of para 9 of the order dated 19.03.2001.
Similarly, the view taken by the Finance Department not to include the converted posts of Section Officers in the MGEL sanctioned strength list on the ground that these posts are to be abolished as and when the incumbent retires or expires and that it will lead to frequent changes in the sanctioned strength list, is of no consequence, as it is merely an expression of administrative convenience of the department which would have no effect as far as the rights and privileges attached to regular appointment of the private respondents as Section Officers are concerned. The accrued rights of regular employees could not be restricted because of administrative inconvenience. So long as they continue to serve as Section Officers on regular basis and till they retire from service they have to be treated as regular Section Officers with all attending rights and privileges attached to the regular post of Section Officer which includes the right to be assigned a position in the seniority list and also to be considered for promotion, if eligible, which could not be denied except by resorting to due process of law. Accordingly, this Court is of the view that the numerous decisions relied on by Sri Tarunkumar would not be applicable in the present case and hence, need not be dealt with.
This Court holds that once the private respondents who were earlier Work-charged employees, are converted to regular establishment in the posts of Section Officers, they would be entitled to all rights and benefits attached to the said regular posts of Section Officers which cannot be denied to them without valid reasons. The right to be included in the seniority list and to be considered for promotion to higher posts of Assistant Engineer are not benefits claimed by the private respondents under the scheme in which they were converted but those are benefits which they are claiming as of right by virtue of holding regular posts of Section Officers, which have nothing to do with the earlier scheme. Accordingly, this Court holds that there is no merit in the contentions of Sri Dhruva Oinam, the petitioner in W.P.(C) No. 1018 of 2015 and hence, deserves dismissal.
Accordingly, for the reasons discussed above, the writ petition, W.P.(C) No. 1018 of 2015 is dismissed. The writ petition, W.P.(C) No. 681 of 2013 is, accordingly, allowed with the direction to the Respondents to consider the case of the petitioner and other eligible candidates for
promotion to the higher posts of Assistant Engineer, against existing vacancies, if any, and if found eligible, in accordance with law and as expeditiously as possible as the right to be considered for promotion, if eligible and vacancies exist, has been held to be a fundamental right. Earlier interim orders, if any, stand vacated. Parties are to bear their own costs.