State of Manipur and Others vs H. Shamu Singh

M. Sharma, J.—These sixteen writ appeals have been preferred by the State of Manipur against the common judgment and order dated 9.9.94 passed by the learned Single Judge in Civil Rule Nos. 515 to 530 of 1988.

The facts as emerges from the contents of the writ petitions as well as the affidavits in opposition are as follows:

The Respondents/writ Petitioners alongwith others, numbering 28 persons, were appointed on ad hoc basis by the Government to various posts of Grade-in in the office of the Chief Engineer, Irrigation and Flood Control Department (IFCD), Govt. of Manipur vide memorandum dated 18.12.84 (Annexure-A to the writ petition). Though the approval was made on 18.12.84 appointed orders were issued only in the month of January, February and March, 1985. The appointments were though made for six months initially, same were extended from time to time. The Government formulated a policy vide its memorandum dated 31.5.86 for regularising all ad hoc appointees who were appointed upto 31.12.84 and who continued to hold their respective post on ad hoc basis on 24.5.86. By another memorandum issued on 4.8.86 it was ordered that all those ad hoc employees who could not be regularised under the scheme were taken to have already been discontinued from their ad hoc appointment with effect from 24.5.86. But the Respondents were not regularised and their services were extended for more than two years thereafter, till they were terminated with effect from 5.9.98. The admitted fact is that a departmental promotion committee was held in 1985 for their regularisation, but the result of the same was not declared when similarly situated persons, who were appointed at the same time, were regularised by the DPC under the regularisation policy. While the Respondents were terminated two of the Lower Division Clerks who were appointed alongwith the Respondents (vide Annexure-A to C) were allowed to continue on ad hoc basis and nine of them were regularised after declaring the result of the DPC (Annexure -II). Both the orders of termination of services of the Respondents and regularisation of those persons were issued on the same date (Annexure-B to D). Against this sixteen Respondents filed sixteen writ petitions and the same were admitted but no interim order was granted. Writ Petitioners preferred SLP before the Apex Court and the same was rejected directing the High Court to dispose of the writ petitions early.

While the writ petitions were pending the Government issued office memorandum dated 9.10.92 whereby decision was taken to regularise all those ad hoc employees who had completed five years of service as on 1.1.92. The two Lower Division Clerks who were appointed along with the Petitioners (Annexure-C) and who were allowed to continue on ad hoc basis (Annexure-D) were regularised under the regularisation policy vide order dated 31.3.93. (Annexure-F). The Respondents/writ Petitioners could not be regularise as they were terminated and their writ petitions were pending. The learned Single Judge by a common judgment dated 9.9.94 directed the Respondents /writ Appellants to consider the regularisation of the services of the writ Petitioners in accordance with the Government policy issued vide office memorandum dated 31.5.86. Appellants preferred appeals and the same were allowed exparte without issuing notice to the Respondents /writ Petitioners. Against the Respondents/writ Petitioners approached the Apex Court and the writ appeals were remanded back to the High Court for fresh disposal.

In this appeal the Appellants have assailed the judgment of the learned Single Judge by which the Government was directed to consider the cases of the Respondents/writ Petitioners for regularisation in accordance with office memorandum dated 31.5.86 with a period of six months.

In this appeal the Appellants have taken the grounds as follows:

i) That the proceedings of the DPC held sometime in October, ''85 before which the Respondents appeared was not approved by the Government for violation of reservation rules and therefore result was not published and proposal for fresh DPC was also stayed in Civil Rule No. 961/89.

ii) That the appointments were purely on ad hoc basis for a Specific term stipulated in the appointment orders and that no assurance was given for regularisation.

iii) That the Respondents are not entitled to be regularised under the mass ad hoc regularisation policy as they did not fulfil the conditions laid therein inasmuch as they did not come within the category of ad hoc appointee who were appointed prior to 31.12.84.

iv) That the learned Single Judge in the impugned judgment uphold the termination order dated 2.9.88 terminating the ad hoc appointment of the Respondents which was impugned in the writ petition following the ratio laid down in the case of Director, Institute of Management Development, U.P. Vs. Smt. Pushpa Srivastava,

v) That in the Government Scheme for regularisation some specific conditions have been prescribed for giving benefit under the Scheme; that one such condition was that the ad hoc appointment should have been made prior to 31.12.84. and should have been continued upto 24.5.86; that Respondents did not fulfil the condition as they were appointed on 28.1.85 i.e., subsequent to the Scheduled dated 31.12.84.

vi) That the learned Single Judge discarded the allegations of arbitrariness, unreasonableness and discrimination in prescribing cut off date, i.e., 31.12.84 in the Scheme which is contradictory to his direction to consider the regularisation of the Respondents of their ad hoc posts more so when they are not in the posts.

Keeping in view the back drops of the case as discussed above, point for consideration is whether the Respondents'' ad hoc appointments from which, admittedly, they were terminated can be reappointed and regularised.

As it is seen being ad hoc appointees Respondents/writ Petitioners have no claim to the posts which were offered as stop gap arrangement. However, on perusal of the appointment letters it is seen that all the appointments were made against existing vacant posts till filled up by regular appointees. In view of the Scheme for regularisation, DPC was convened and similarly appointed persons were regularised. Further it is seen that two similarly situated persons, namely Smt. A. Sumati Devi and R.K. Barunisana Devi''s ad hoc services were extended in two posts meant for Scheduled caste and Scheduled tribe and subsequently they were regularised by the order dated 31.3.93.

Admittedly a number of DPCs were held in 1985 for different services inclusive of Petitioners services and the writ Petitioners appeared before such committees. But the result of the DPC in which the writ Petitioners/ Respondents appeared were not published. The reason shown by the Appellants is that the said DPC was not approved by the Government for violation of reservation rules. But from the office order No. 140 issued on 2nd September, 1988 it appears that two similarly situated ad hoc appointees who were appointed on the same date alongwith the writ Petitioners, were allowed to continue on ad hoc basis against the posts reserved for SC/ST temporarily till the posts are filled up by regular basis by Scheduled caste and Scheduled Tribe candidates (underline supplied). The admitted position is that those two persons belong to general category and subsequently by order dated 31.3.93 they were regularised though they were similarly situated ad hoc appointed, with immediate effect in the posts vacated by the promotions of four Lower Division Clerks. In that view of the matter the submission of the learned Advocate General is not sustainable as the Appellants had taken a pick and choose policy which is arbitrary and unfair. In our view the Respondents were discriminated with similarly situated persons and were deprived of their legitimate claim to be regularised along with other ad hoc appointees. Further contention of the Appellants is not sustainable as when some persons appointed on similar conditions were allowed to continue the services of the Respondents/writ Petitioners were terminated though they were appointed against regular vacancy and were allowed to continue for four years. As stated above, the two persons whose ad hoc appointments were allowed to continue and were regularised subsequently were appointed alongwith the Respondents on 28.1.85, i.e., after one month of the scheduled dated 31.12.84 fixed in the scheme. Arbitrariness and discriminatory treatment are writ at large in the action of the Appellants and therefore allegation of contradictory views and conclusion in the judgments of the learned Single Judge does not hold good when the manifest arbitrariness is apparent in choosing the ad hoc appointees for regularisation. From the sequence of the facts and circumstances of the case the termination of services of the Respondents/writ Petitioners can not be taken as termination simpliciter of ad hoc appointments. Therefore, we are of the view that the case of Director, Institute of Management Development (Supra) is distinguishable in view of the facts and circumstances of the present case. When the similar treatment was denied to the similarly situated ad hoc appointees such termination cannot be sustainable and the grievances of the Respondents/writ Petitioners are required to be considered to give relief on the ground of justice and equity. In such cases Court is required to raise the veil of such termination order claimed to be innocuous and simple if Court finds the arbitrariness and discrimination. In violation of the constitutional safeguard under the provisions of Article 14 of the Constitution Court is required to quash such order and give relief to the aggrieved person guided by the principle of justice, equity and good conscience. Since eight years these poor simple Writ Petitioners fought upto the Supreme Court with begging bowls for justice. Mr. Sahu, counsel for the Respondents fairly submitted that these poor Respondents only pray for their appointment at the cost of seniority and benefits of back wages; that they only want their appointments for the rest of their tenure on humanitarian grounds and for justice, equity which was denied to them.

Mr. A. Potsongbam, learned Advocate General submitted that the findings of the learned Single Judge is that being ad hoc appointees, the termination order was legal; that when the established law provides for termination of ad hoc appointees on expiry of their terms of appointment Court cannot put them back on any consideration on the principle of justice, equity and good conscience. Learned Advocate General referred the decision of the Apex Court in State of Haryana and others Vs. Piara Singh and others etc. etc., wherein it was held that special power of the Supreme Court under Article 142 of the Constitution to do complete justice is not available to the High Court under Article 226 of the Constitution. It was further insisted by the Advocate General that when the established law denies right to the post of ad hoc appointees, High Court under Article 226 of the Constitution cannot give relief. But in the recent decision of the three Judges Bench of the Supreme Court in the case of B.C. Chaturvedi Vs. Union of India and others, it was held as follows:

No doubt, Article 142 of the Constitution has specifically conferred the power of doing complete justice on this Court, to achieve which result it may pass such decree or order as deemed necessary; it would be wrong to think that other Courts are not to do complete justice between the parties. If the power of modification of punishment/penalty were to be available to this Court only under Article 142, a very large percentage of litigants would be denied this small relief merely because they are not in a position to approach this Court, which may, interalia, be because of the poverty of the concerned person. It may be remembered that the framers of the Constitution permitted the High Courts to even strike down a parliamentary enactment, on such a case being made out, and we have hesitated to concede the power of even substituting a punishment/ penalty, on such a case being made out

It is further held that:

...the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice, between the parties, the same cannot be ordered. Absence of provisions like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review in the High Court, this Court held as early as 1961 in Shivdeo Singh and Others Vs. State of Punjab and Others, that the High Courts too can exercise power of review, which inheres in every Court of plenary jurisdiction. I would say that power to do complete justice also inheres in every Court, not to speak of a Court of plenary jurisdiction like of High Court. Of course, this power is not as wide which this Court has under Article 142. That, however, is a different matter.

Mr. Potsongbam, Advocate General very fairly conceded that Government Appellant has no objection to appoint the Respondent/writ Petitioners subject to the condition that they shall appear before the specially constituted DPC for their appointment and that they cannot claim their appointment on the basis of the scheme meant for mass ad hoc appointment upto 31.12.85. We are also aware of the situation which may effect the policy of the Government. But we direct the appointment of the Respondents/writ Petitioners on the reasons discussed above. In that view of the matter, it is made clear that this direction cannot be a precedent for future.

In the case of Shri Shyamkishore Singh and Ors. v. State of Manipur (Civil Appeal No 4631/89), which is similar to this case in hand the Apex Court held:

we are of the view that the Appellants who were said to be thirteen in number could have been regularised and they should not have been terminated.

Relying on the Apex Court decision (Supra), we direct that die Appellants shall reappoint the Respondents/writ Petitioners in their respective posts in the office of the Chief Engineer, IFCD from 1st of May, 1996. The Respondents/writ Petitioners, however, shall not be entitled to back wages from the date of their termination i.e. 2.9.88 to 30.4.96 during which they will be taken to be in continuous service for the purpose of pension and other benefits as and when pension becomes due. Further, the submission for fresh appointment of the Respondents/writ Petitioners, by special DPC is rejected on the ground that the DPC held in the year 1985 was not approved illegally for the reasons given in above discussion. Therefore, we direct the Appellant Government to appoint the Respondents/writ Petitioners without holding DPC.

In the result the writ appeals are dismissed. The Appellants are directed to pay Rs. 500/- (Rupees five hundred) to each of the Respondents/writ Petitioners as costs.