W. Memcha Devi (Km.) vs State of Manipur and Another

N.S. Singh, J.—Upon hearing the learned Counsel on both sides, it appears to me that the writ Petitioner, Km. W. Memcha Devi, made a prayer in this writ petition for an appropriate direction to the Respondents to regularise her services to the post of Skilled Artisan (Carpet) held by her on casual basis and thereafter, on ad-hoc basis with retrospective effect, i.e. on and from 12.4.82 and also for a direction to the Respondents to pay the arrears of her salary being the difference of salary paid to her and a regular employee for the entire period of her casual engagement i.e. on and from 12.4.82 to 22.1.92.

According to the writ Petitioner, she was initially appointed as casual skilled artisan (Carpet) vide order dated 12.4.1982 issued by the Director of Industries, Govt. of Manipur, the Respondent No. 2 herein for a period of 6 (six) months at the rate of Rs. 8.00/- only per working day with effect from the date of her joining for duty in the Design Extension Centre, Takyeipat, Manipur and, thereafter she was allowed to continue to the said post for Anr. period of about 10 (ten) years on casual basis. However, considering her satisfactory service record, the Respondents appointed the writ Petitioner to the post of Skilled Artisan (Carpet) on ad-hoc basis for a period of 6 (six) months as the Govt. had conveyed the approval for her appointment to the said post on ad-hoc basis and thus, the Respondent No. 2 issued the order dated 22.1.92 as in Annexure A/3 to the writ petition, appointing the writ Petitioner to the said post on ad-hoc basis for a period of 6(six) months and subsequently, the Respondent No. 2 had issued Anr. order dated 14.2.94 as in Annexure A/4 to the writ petition appointing the writ Petitioner in the said post on ad-hoc basis for the period from 1.4.93 to 31.10.93 against the post created vide order No. 60/24/79-IND dated 28.2.80 in the form of ex-post-facto extension order. It is also the case of the writ Petitioner that, the extension of services of ad-hoc employees of all the departments under the Govt. of Manipur is done with the concurrence of the Department of Personnel and the Department of Personnel issued a fresh memorandum on 8.2.94 as in Annexure A/5 to the writ petition wherein, all the Departments under the Govt. of Manipur were directed to extend the services of all ad-hoc employees for a period till 31.3.94 thus, showing the factum of the services of the writ petition as Skilled Artisan (Carpet) on ad-hoc basis till 31.3.94 as seen in the document marked as Annexure A/5 to the writ petition. According to the writ Petitioner, she has been paid the scale of pay of Rs. 825-15-950-EB-20-1200/- p.m. plus other allowances only, but she has not been afforded the pay scale of a regular Skilled Artisan (Carpet) and as such, it is an unequal treatment amongst equals. The Petitioner has claimed for equal pay for equal work and for regularisation of her services in the post of Skilled Artisan (Carpet) as it was done in other Departments like Public Health Engineering Department under the Govt. of Manipur and other Departments by a special D.P.C.

The case of the writ Petitioner was contested by the Respondents by filing affidavit-in-opposition and contending inter-alia, that there are 6 (six) posts of Skilled Artisan (Carpet) in the Industries Department, Govt. of Manipur which are to be filled up by direct recruitment from amongst the persons possessing the prescribed qualifications and, all the posts of Skilled Artisan (Carpet) had already been filled up by direct recruitment, but, out of the said appointment only one Scheduled Tribe candidate and 5(five) General candidates had already been appointed. Out of the 6 (six) posts, post No. 1 and 4 are reserved posts for Scheduled Tribe and Scheduled Caste candidates as per the Roster followed by the Department. As 6 (six) posts had already been filled up by 5 (five) General candidates and one Scheduled Tribe candidate, there is a back-log of one post for Scheduled Caste candidates. The present vacancy arising out of the promotion of Shri S. Gopal Singh as Supervisor (Carpet) though falls within the general quota as per the Roster since there is back-log of one post for Scheduled Caste candidate, the writ Petitioner, being a general candidate and there is back-log for Scheduled Caste candidate, the present vacancy could not be filled up by general candidate and as such, the said post could not be filled up by the writ Petitioner. According to the Respondents, the writ Petitioner cannot claim as of right for regularisation of her services in the said post of Skilled Artisan (Carpet), now lying vacant in the Department. In view of the provisions of the Manipur Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1976, the Respondents could not take up any action for appointment of the Petitioner against the said post on regular basis.

On perusal of the claims and counter claims of the parties and also upon hearing the learned Counsel on both sides, it has been revealed that the Petitioner has claimed for regularisation of her services in the post of Skilled Artisan (Carpet) as she had rendered about 12 years at the time of filing of this writ petition in the said post.

Now, this Court is to examine as to whether the writ Petitioner has an enforceable right and her services can be regularised in the post of Skilled Artisan (Carpet) with retrospective effect i.e. on and from 12.4.82, as contended. For this purpose, this Court is to recall the enshrined and established principles of law laid down by the Apex Court, particularly in two cases namely, the case between Dr. Surinder Singh Jamwal and another Vs. State of Jammu and Kashmir and others, and in Anr. case between State of Haryana and others Vs. Piara Singh and others etc. etc.,

In the first case, the Apex Court held, that the employees who had rendered more than 13 years of service on ad-hoc basis which was made dehors the service rules, are not entitled to regularisation; but can continue only till regularly selected candidates are appointed and those ad-hoc employees however can apply and seek selection according to Rules, and in the event of their becoming age bar on relevant date, the authority has been directed to relax necessary age qualification. For better appreciation in the matter, the relevant findings and observations of the Apex Court rendered in Dr. Suridner Singh Jamwal and Anr. Appellants v. State of Jammu & Kashmir and Ors. Respondents (supra) is hereby reproduced as hereunder:

The controversy raised in this case is squarely covered by the judgment of this Court reported in J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc., It is not in dispute that the Appellants were recruited on ad hoc basis and have been continuing as such. It is their contention that since they had put in more than 13 years of service they are entitled to regularisation of service and approached the High Court for direction to regularise their services. The High Court has followed the ratio in the above judgment and dismissed the petition. In the light of the judgment of this Court the settled legal position now is that the recruitment to the service should be governed by the appropriate statutory rules. Under the rules the regular recruitment to the posts shall be made by the Public Service Commission. Consequently, the ad hoc appointments would be only temporary appointments dehors the rules, pending regular recruitment without conferring any right to regularisation of service. This Court in Narinder Mohan''s case AIR (1994) SCW 1701 (supra) had given the following directions:

Accordingly, we set aside the directions issued by the Division Bench of the High Court and confirm those of the Single Judge and direct the State Government of the J & K. to notify the vacancies to the PSC which would process and complete the selection, as early as possible, within a period of six months from the date of the receipt of this order. The State Government should on receipt of the recommendation, made appointments in the order mentioned in the selection list within a period of two months thereafter. Since the Respondents have been continuing as ad hoc doctors, they shall continue till the regularly selected candidates are appointed. They are also entitled to apply for selection. In case any of the Respondents are bared by age, the State Government is directed to consider the cases for necessary relaxation under Rule 9(3) of the age qualification. If any of the Respondents are not selected, the ad hoc appointment shall stand terminated with the appointment of the selected candidate. The direction sought for by Dr. Vinay Rampal cannot be given. His appeal is accordingly dismissed and the State appeal is also dismissed. The appeals of the PSC are accordingly allowed but in the circumstances parties are directed to bear their own costs.

Following the above directions, there shall be a direction to the State Government to notify the vacancies to the Public Service Commission within a period of two months from today. On notification so made, it would be open to the Appellants to apply for regular recruitment. It would be for the PSC to consider the respective claims of the candidates who have applied for and to make necessary selection according to rules. On selection so made and recommendation made to the State Government, the State Government will make appointments as per rules within a period of two months from the date of the receipt of the list of the selected candidates from the PSC. The PSC is directed to complete the process of the selection within a period of three months from the date of receipt of the requisition. The State Government after receipt of the lists shall make the necessary appointments in accordance with law. Till then the Appellants would continue only on ad hoc basis till the regularly selected candidates are appointed.

It is obvious that the Appellants have become barred by age for the direct recruitment. It would, therefore, be necessary that the State Government would relax the necessary age qualification so as to enable them to apply for and seek recruitment through PSC.

In Anr. case in State of Haryana and Ors. etc. etc. Appellants v. Piara Singh and Ors. etc. etc., Respondents, the Apex Court held thus:

The normal rule, of course, is regular recruitment through the prescribed agencies but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employees by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidates. The appointment of the regularly selected candidates cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employees.

Secondly, an ad hoc or temporary employee should not be replaced by Anr. ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.

Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.

An unqualified person ought to be appointed only when qualified persons are not available through the above processes.

If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.

The proper course would be that each State prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service as the case may be.

So far as the work-charged employees and casual Jabour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell-say two or three years a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this Court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6.4.90 referred to hereinbefore) both in relation to work-charged employees as well as casual labour.

We must also say that the orders issued by the Governments of Punjab and Haryana providing for regularisation of ad hoc/temporary employees who have put in two years/one year of service are quite generous and leave no room for any legitimate grievance by any one.

These are but a few observations which we thought it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the observations made herein.

From the established principles of law, it is crystal clear that, if for any reason, an ad-hoc or temporary employees is are continued for a fairly long spell, the competent authorities must consider the case of the employees for regularisation provided they are eligible and qualified according to Rules and their service record are satisfactory and their appointment does not run counter to the reservation policy of the State. So far the contention of Shri L. Nandakumar Singh, learned senior counsel for the Respondents, with regard to the inability of the Respondents to take up the steps for regularisation of the writ Petitioner since there is back-log of one post for Scheduled Caste candidate even though the present vacancy falls within the General quota as per the Roster, a reference may be made to a decision of the Apex Court rendered in Chakradhar Paswan Vs. State of Bihar and Ors, wherein the Apex Court held, that there can be no reservations with reference to one post in cadre either for recruitment at initial stage or for filling up future vacancy in respect of that post. In the said case of Dr. Chakradhar Paswan, Appellant v. State of Bihar and Ors. Respondents (supra), the Supreme Court held thus:

It is quite clear after the decision in Devadasan''s case that no reservation could be made under Article 16(4) so as to create a monopoly. Otherwise it would render the guarantee of equal opportunity contained in Articles 16(1) and 16(2) wholly meaningless and illusory. These principles unmistakably lead us to the conclusion that if there is only one post in the cadre, there can be no reservation with reference to that post either for recruitment at the initial stage or for filling up a future vacancy in respect of that post. A reservation which would come under Article 16(4) pre-supposes the availability of at least more than one post in that cadre.

Applying all these enshrined and established principle of law laid down by the Apex Court, I am of the view that it would be just and proper to give a direction to the Respondents to consider the case of the writ Petitioner as she had put more than 15 years in service as Skilled Artisan (Carpet) in the Directorate of Industries, Govt. of Manipur, for regularisation of her services provided she is eligible and qualified according to the related service rules and her service record is satisfactory, by preparing an appropriate scheme and also by treating the present vacancy of the said post as General quota within a period of 3 (three) months from the date of receipt of this judgment and order. Accordingly, I do so. It is also made clear that the Respondents shall consider the case of the writ Petitioner alongwith the employees who are similarly situated with the writ Petitioner, if any, by preparing an appropriate scheme for regularisation under the Department of Industries, Govt. of Manipur. It is also further made clear that these observations and direction shall not be a precedent in other cases.

For the aforesaid reasons, observations and directions, this writ petition is disposed of. No cost.