2 vs State Of Manipur Represented By ...
2021 Latest Caselaw 295 Mani

                                                            1



                     IN THE HIGH COURT OF MANIPUR
                               AT IMPHAL


                              WP(C) NO.73 OF 2019

1.     Kharamjam Ojit Singh aged about 51 years,
       s/o (L) Kh.Kalachand Singh of Bishnupur Ward
       No.5, PO & PS Bishnupur, Bishnupur District
       Manipur, presently working as Science
       Graduate Teacher, Pushing Government
       High School, Ukhrul.

2.     Khundrakpam Rajen Singh, aged about 50 years
       s/o (L) Kh.Ibotombi Singh of Heirok Part-I
       PO Wangjing & PS Heirok, Thoubal District,
       Manipur, presently working as Primary Teacher,
       Kangthokchao Upper Primary School.

3.     Tongbram Amujai Singh, aged about 50 years,
       s/o (L) T.Bira Singh of Salungpham Khangyengbam,
       PO Wangjing & PS Thoubal Thoubal District,
       Manipur, presently working as Science Graduate
       Teacher, Khammunou Jr. High School, Ukhrul.

4.     Rajkumar Ibomcha Singh, aged about 52 years,
       s/o (L) RK Lembisana Singh of Sagolband Tera
       Yambem Leirak, PO Imphal & PS Lamphel,
       Imphal West District, Manipur, presently working
       as Science Graduate Teacher, Huining
       Jr. High School, Ukhrul.

5.     Usham Kamal Singh, aged about 51 years, s/o
       (L) U.Momon Singh of Thoubal Bazar, PO & PS
       Thoubal, Thoubal District, Manipur,
       presently working as Science Graduate Teacher,
       Poulieu Jr.High School Tamenglong.

6.     A.Bijenkumar Singh, aged about 47 years, s/o
       A.Joy Singh of Yourabung mayai Leikai, PO
       Lamlong & PS Lamlai, Imphal East District,
       Manipur, presently working as Primary Teacher,
       Kharao Primary School, Imphal East.



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                                                                          2



7.     Khungongbam Memita, aged about 43 years,
       D/o Kh.Nandakeshwor Singh of Khonghampat
       Awang Leikai, PO Mantripukhri & PS Sekmai,
       Imphal West District, Manipur, presently working
       as Primary Teacher, Kharamnol Primary School,
       Imphal West.

8.     Mutum Manimohon Singh, aged about 51 years, s/o
       (L) M.Baechao Singh of Tronglaobi, PO & PS
       Moirang, Bishnupur District, Manipur, presently
       working as Science Graduate Teacher, Ningkhao
       Jr HIgh School, Tamenglong.

9.     Moirangthem Iboyaima, aged about 47 years,
       s/o M.Lalmani Singh of Keishampat Thokchom
       Leikai, PO & PS Lamphel, Imphal West District,
       Manijpur, presently working as Assistant Graduate
       Teacher, Makui Jr.High School, Tamenglong.

10.    Thokchom Dhanabir Singh, aged about 48 years,
       s/o Th.Ibotombi Singh of Heirok Part-II, Heirok
       Bazar, PO Wangjing & PS Heirok, Thoubal
       District, Manipur.

                                                     ... Petitioners

               -Versus-

1.     State of Manipur represented by the
       Principal Secretary/Commissioner/
       Secretary, Education (S), Government of
       Manipur, Office at New Secretariat, Eastern
       Block, Babupara, PO & PS Imphal,
       Imphal West District, Manipur 795001.

2.     The Principal Secretary/Commissioner/
       Secretary, Department of Personnel &
       Administrative Reforms (Personnel Division)
       Government of Manipur, Office at Old
       Secretariat, Babupara, PO & PS Imphal,
       Imphal West District, Manipur 795001.

3.     The Director of Education (S),
       Government of Manipur office at


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                                                                        3



       Lamphelpat, Imphal West District,
       Manipur 795001
                                                   ... Respondents

WP(C) No.26 of 2018

Laipubam Ushakira Devi, B.Sc aged about 54 years d/o late L.Brajamani Sharma of Chinga Mathak Yumnam Leikai, Science Graduate Teacher of Sorbung Junior High School, PO & PS Imphal, District Imphal West.

... Petitioner

Vs

1. The State of Manipur represented by Principal Secretary/Commissioner/ Secretary Education (S), Government of Manipur.

2. The Director of Education (S), Government of Manipur.

... Respondents

BEFORE THE HON'BLE MR.JUSTICE LANUSUNGKUM JAMIR

For the Petitioners :: Mr.M.Hemchandra, Sr.Advocate & Mr.A.Romenkumar, Advocate

For the Respondents:: Mr. Lenin Hijam, Addl. AG, Manipur

Date of hearing :: 21.10.2021

Date of Judgment/ :: 22.11.2021 Order

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JUDGMENT AND ORDER (CAV)

The Department of Personnel and Administrative Reforms (Personal Division) issued a Notification dated 18.10.1995 notifying "Department of Education (Schools), Manipur (Primary Teacher Recruitment Rules, 1995)" (Rules of 1995 in short) under proviso to Article 309 of the Constitution of India wherein the qualification for Primary Teachers has been shown as Higher Secondary or Pre University (2 Yrs. course) or its equivalent from a recognized University/Board.

WP(C) No.73 of 2019

[2] The petitioner No. 1 was appointed as Science Graduate Teacher on Adhoc basis for a period of 3(three) months by order dated 23.1.1999. The petitioner No. 2 was appointed as Primary Teacher on adhoc basis by order dated 16.6.1997 for a period up to 12.09.1997. The petitioner No. 3 was appointed as Science Graduate Teacher on adhoc basis for a period of 3(three) months by order dated 20.1.1999. The petitioner No. 4 was appointed as Assistant Science Graduate Teacher on adhoc basis for a period of 6(six) months by order dated 2.2.1999. The petitioner No. 5 was appointed as Assistant Science Graduate Teacher on adhoc basis for a period of 6 (six) months by order dated 7.11.1998. The petitioner No.6 was appointed as Primary Teacher for a period of 3(three) months on adhoc basis by order dated 22.1.1999. The petitioner No.7 was appointed as Primary Teacher on adhoc basis for a period of 3(three) months by order dated 28.10.1998. The petitioner No.8 was appointed as Assistant Science Graduate Teacher on adhoc basis for a period of 3(three) months by order dated 30.1.1999. The petitioner No.9 was appointed as Assistant Arts Graduate Teacher on adhoc basis for a period of 3(three) months by order dated 1.2.1999 and the petitioner

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No.10 was also appointed as Primary Techer on adhoc basis for a period up to 12-09-1997 by order dated 16.6.1997. All the petitioners were appointed on adhoc basis against substantive vacancies.

WP(C) No.26 of 2018

[3] The petitioner was also appointed as Assistant Science Graduate Teacher on adhoc basis for a period of 3(three) months by order dated 22.1.1999 against a substantive vacancy.

[4] All the petitioners in both the writ petitions are serving as Primary/Under Graduate/Graduate Teachers/Science Graduate Teachers/Arts Graduate Teachers in the Department of Education (S), Government of Manipur for the past 20-23 years. All the petitioners were qualified in terms of the Rules of 1995. The services of the petitioners were extended from time to time.

[5] The Government of Manipur issued Office Memorandum dated 4.5.2007 on the subject of Discontinuation of Graduate Adhoc Teachers under the Education (S) Department, Manipur with immediate effect and the same reads as under:

" GOVERNMENT OF MANIPUR OFFICE OF DIRECTOR OR EDUCATION(S)

OFFICE MEMORANDUM Imphal, the 4th May, 2007

Subject: Discontinuation of Graduate ad-hoc teachers in the Education (S) Department, Manipur with immediate effect.

No.4/17/2005-SE(S)Pt: Whereas, Government took a policy decision to fill up all the posts held by ad-hoc(s) on regular basis through open competition or by regular promotion whenever it is applicable:

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2. Whereas, the ban on direct recruitment was lifted sometime in the later part of 2005 in respect of Education and Health Sector;

3. Whereas, pursuant to the aforesaid policy decision and lifting of ban, all the available posts of Graduate Teachers, both Science and Arts, numbering about 663 were filled on regular basis on the recommendation of a duly constituted DPC/selection committee vide order No.3/43-ADHOC/2006- ED(S) dated 19.4.2007 and, thereafter, all the regular appointees have been posted against the available vacancy including the posts held by ad-hoc employees'

4. Whereas, consequent upon the filling up of vacant Graduate posts (Science and Arts) by the duly appointed Graduate Teachers, no vacant post is left for direct recruitment in the grade of graduate teacher and as such, all the ad-hoc Graduate teachers (both Science and Arts) shall be deemed to have been discontinued and as a consequence thereof their continuance in any form in the Government Schools have become illegal, unauthorized and without sanction of law;

Now, therefore, due consideration of the fact situation as highlighted above, Governor of Manipur is pleased to order that all the ad-hoc Graduate Teachers (Both Science and Arts) shall cease to be in ad-hoc service of government schools and their ad-hoc employment stands discontinued with immediate effect. All the Head Masters/Principals of the discontinued with immediate effect. All the Head Masters/Principals of the government schools where the ad-hoc graduate teachers are said to have been serving shall not allow any of the aforesaid ad- hoc graduate teachers to attend school any further and noncompliance of this order shall be viewed as a serious breach of discipline"

[6] Despite issuance of the Office Memorandum dated 4.5.2007, the Government of Manipur, Education Department (Schools Section) issued an order dated 19.3.2008 according approval to the extension of services of 125 (one hundred twenty five) adhoc employees (Science Graduate Teachers-36, Arts Graduate Teachers-21, Hindi Graduate Teacher-1, PET-1, Primary Teacher-63 and Hindi Matriculate Teacher-33) who were working

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in different Schools under the Education (S) Department, Government of Manipur as given in the Annexure, up to 4.5.2007 from the date of their last extension indicated against their names.

Thereafter, the Education Department, Government of Manipur, issued Orders dated 25.3.2008, 8.9.2008 and Addendum dated 10.9.2008, Order dated 25.6.2009, Order dated 15.7.2009 and Order dated 27.12.2013 extending the services of the adhoc teachers under the Education (S), Department, Government of Manipur including those of the petitioners.

[7] The Joint Secretary, Education (S), Government of Manipur issued another order dated 18.5.2007 cancelling the Order dated 6.4.2000 issued by the Director, Education (S), Government of Manipur for regularization of 170 adhoc Graduate Teachers and further ordered to discontinue the ad hoc services with immediate effect.

[8] In the meantime, the Department of Personnel & Administrative Reforms (Personnel Division) issued an Office Memorandum dated 3.10.2013 on the subject of Government Policy on adhoc regularization in respect of 288 (two hundred eighty eight) direct recruit adhoc employees of various Government offices and Departments/Offices. In the said Office Memorandum, it is stated that to resolve the problem of adhoc appointments in all Departments of Government of Manipur a decision has been taken to fill up all the vacant posts which have been held by 288 (two hundred eighty eight) direct recruit adhoc employees, who were

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appointed against Group-A, B, C and D posts in 19 (nineteen) Departments.

Further, at para 9 of the said Memorandum it is stated that after regularization of the above mentioned adhoc employees, it will be deemed that there are no adhoc employees in the State Government of Manipur, except Education (S), Department, which is, separately under consideration.

[9] Thereafter, the Education (S) Department, Government of Manipur submitted a Memorandum for Cabinet and the relevant provisions placed before the Cabinet for consideration is reproduced herein below:

"i. Regularization of the services of t hose adhoc employees of the Department, excluding the 252 (two hundred and fifty two) adhoc Arts and Science Graduate Teachers, whose names were submitted to the Department of Personnel and Administrative Reforms, Government of Manipur vide the Government letter No.12 (HC)/87/2013-SE(S) dated the 21st March 2014 by giving a 3 years' time to the adhoc Matriculate Teachers to complete Class-XII so as to enable the Department to appoint them against the vacant posts of Primary Teachers and also subject to the recommendation of a duly constituted Special Class-III DPC against the existing vacant posts; and

ii. Regularization of the services of those substituted employees of the Department, excluding the 29 (twenty nine) substitute Arts and Science Graduate Teachers (Until Further Order), whose names have been recommended by the Committee of Officers, headed by Shri H.Deleep Singh, then Director of Education(S), Manipur by giving a 3 years' time to the adhoc Matriculate Teachers to complete Class-XII so as to enable the Department to appoint them against the vacant posts of Primary Teachers and also subject to the recommendation of a duly constituted Special Class-III DPC against the existing vacant posts."

On the basis of the Memorandum for Cabinet, the State Cabinet took a decision on 29.11.2016 approving for regularizing

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the services of 502 (five hundred and two) adhoc employees of Education-S, Department, through Special Class-III DPC against the existing vacant posts.

[10] Pursuant to the Cabinet Decision taken on 29.11.2016, the Education (S), Department, Government of Manipur constituted a Special Class-III DPC for regularization of the services of 502 (five hundred and two) adhoc employees of Education (S), Department with the concurrence of Department of Personnel and Finance Department by an order dated 27.12.2016. Consequent thereto, a Notification dated 28.12.2016 was issued by the Directorate of Education (S), informing all the 502 (five hundred and two) adhoc employees of the Department listed at the Annexure enclosed that Special Class-III DPC for regularization of their services is scheduled on 30th and 31st December, 2016. All the Adhoc employees were directed to personally appear before the Special Class-III DPC along with documents specified in the said Notification. In the Annexure appended to the Notification dated 28.12.2016, the names of the petitioners in WP(C) No.73 of 2019 appear at Sl.Nos.3, 19, 39, 55, 105, 106, 111, 116, 267 and 271 and the name of petitioner in WP(C) No.26 of 2018 appear at Sl.No.125.

[11] On completion of the process, the proceedings of the Special Class-III DPC was forwarded for obtaining approval of the Government, vide letter dated 11.1.2017.

As no further steps were taken, some of the petitioners in WP(C) No.73 of 2019 approached this Court by filing WP(C) No.6

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of 2018 praying interalia for a direction for granting approval for regularization of the adhoc services. This Court disposed of the Writ Petition (C) No.6 of 2018 along with WP(C) No.916 of 2017 by an order dated 2.5.2018 directing the authorities to examine all aspects while considering for regularization of 502 (five hundred and two) adhoc employees, which process, they have already initiated.

[12] Thereafter, the Joint Secretary, Education (S), Government of Manipur by an order dated 7.12.2018 rejected the recommendations submitted by the Director of Education (S), by the letter dated 11.1.2017 with the following observations:

"Whereas, on examination of the proceedings of the DPC submitted by the Director of Education (S) vide letter No.AO/56/ACB/2010(C)-DE(S) Pt-I dated 11.01.2017, it has been observed that the DPC does not consider (i) the minimum eligibility norms for teachers as provided by Notification F.No.61-03/20/2010/NCTE/(N&S) dated 23.08.2010 issued by the National Council for Teacher Education (NCTE) under the Right to Education Act, 2009 as amended from time to time (ii) whether due procedures were followed or not while making appointment for the 502 Adhoc employees such as open notification, etc, which are crucial for taking up any recruitment.

And whereas, on examination of the records submitted by the DPC, it is found that (i) none of them were appointed as per applicable rules for appointment and no open advertisements were taken up while appointing them (ii) none of the adhoc teachers from amongst the 502 adhoc employees have passed B.Ed, D.El.Ed or TET which are among the minimum requisite qualifications required for an individual to be a teacher of Class I to VIII, and (iii) None of the Grade IV employees were found to be Matriculate which is the minimum, educational qualification required for appointment as a Grade IV employee.

Now, therefore, in view of the facts and circumstances stated above and in compliance of the Order dated 02/05/2018 in WP(C) No.916 of 2017 and WP(C) No.6 of

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2018 of the Hon'ble High Court of Manipur, the Education-S Department has arrived to a conclusion that the Special Class-III DPC which was held on 30th and 31st December, 2016 with regard to the 502 adhoc employees was conducted without taking into account the requisite qualifications pertaining to the relevant posts and as such, the recommendations submitted vide letter No.AP/56/ACB/2010(3)-DE(S) Pt-I dated 11.01.2017 of the Directorate of Education-S are found to be irregular and accordingly rejected."

[13] Being aggrieved with the order dated 7.12.2018, the petitioners in both the writ petitions are before this Court by filing the aforesaid two writ petitions.

[14] Heard Mr. M. Hemchandra, learned senior counsel for the petitioners in WP(C) No. 73 of 2018 as well as Mr. A .Romenkumar, learned counsel for WP(C) No. 26 of 2018. Also heard Mr. H. Lenin, learned Addl. A.G, appearing on behalf of the State respondents.

[15] Mr. M. Hemchandra, learned senior counsel for the petitioners in WP(C) No. 73 of 2019 submits that the petitioners were appointed on adhoc basis in various capacities as Primary/Under Graduate/Graduate Teachers/ Science Graduate Teachers/Arts Graduate Teachers against substantive posts and they have been continuing on the basis of extension orders issued by the respondents for the past 20-23 years. He submits that the State respondents after considering the issue of adhoc appointments in the various Government Departments of Manipur had taken a policy decision for regularization of 288 direct recruit adhoc employees of various Government Departments/Offices in the State of Manipur by Office Memorandum dated 3rd October,

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2013. As regards the Education (S) Department, it was decided that in Clause 9 of the Office Memoradum dated 3rd October, 2013 that consideration for regularization of the adhoc teachers would be separately considered. On the basis of the policy decision taken by the State respondents, all adhoc appointees in different departments of the State of Manipur were regularized except the adhoc teachers in the Education (S) Department. Considering the plight of the adhoc teachers, the Education (S) Department submitted a Memorandum for Cabinet for regularization of 252 adhoc Arts and Science Graduate Teachers which was approved by the Cabinet held on 29-11-2016 for regularizing the services of 502 ad hoc employees of the Education (S) Department through Special Class - III DPC against the existing vacant post. On the basis of the Cabinet decision, a Special Class-III DPC for regularization of the services of 502 adhoc employees of Education (S) Department was constituted with the Director of Education as the Chairman along with 4 (four) other members after taking the concurrence of the Department of Personnel as well as the Finance Department. Thereafter, Notification dated 28-12-2016 was issued directing all adhoc employees to be personally present before the Special Class-III DPC on 30th to 31st December, 2016 along with relevant documents as specified in the said Notification. All the petitioners appeared before the Special Class-III DPC and thereafter, proceedings of the Special Class-III DPC was forwarded to the Government for approval by letter dated 11-01-2017. He submits that in the proceedings of the Special Class III DPC all the names of the petitioners were included for regularization.

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However, by the impugned order dated 7th December, 2018, the Joint Secretary to the Government of Manipur Education (S) Department rejected the recommendations made by the Special Class-III DPC on the ground that the petitioners do not have the minimum eligibility norms for Teachers as provided by Notification dated 23-08-2010 issued by the National Council for Teacher Education (NCTE) under the Right to Education Act, 2009 as amended from time to time. Further, no due procedure was followed while making appointment for the 502 adhoc employees such as open notification for recruitment, reservation policy, age limit, competent authority for appointment etc. He submits that the Notification dated 23rd August, 2010 issued by the NCTE prescribing the minimum qualification was issued only after the petitioners were appointed on adhoc basis and therefore, the said Notification dated 23rd August, 2010 does not apply to the petitioners. Further, in the Notification dated 23rd August, 2010, at clause 4 (c) it is provided that teacher appointed before 3rd September, 2001 should be in accordance with the prevalent Recruitment Rules. He submits that when the petitioners were appointed as adhoc employees, they were appointed in terms of the Recruitment Rules prevailing at that point of time, i,e., the Rules of 1995 wherein, the Educational qualification provided is Higher Secondary or Pre-University (2 Years course) or its equivalent from a recognized University/Board. As the petitioners were appointed on being found qualified under the prevalent prevailing Recruitment Rules, the question of being ineligible under the Notification dated 23rd August, 2010 issued by the NCTE does not arise.

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He also submits that the Special Class-III DPC was constituted on the basis of the Cabinet decision taken on 29-11- 2016 and therefore, the Joint Secretary, Education (S), Government of Manipur has no authority to over-rule the decision of the Cabinet. When the Cabinet had taken its decision on 29-11- 2016, all the necessary documents pertaining to the appointment of the petitioners and their extension orders were placed before the Cabinet and only thereafter, the Cabinet has taken the policy decision for regularizing 502 adhoc teachers under the Education (S) Department. Therefore, the order dated 7th December, 2018 has no legal basis for rejecting the recommendation made by the Special Class-III DPC. He therefore, submits that as the Special Class-III DPC was constituted on the basis of the decision of the Cabinet and the said DPC having considered the required eligibility criteria of the petitioners had made recommendations for regularization and therefore, the Government has no authority to reject the recommendations of the Special Class-III DPC as projected in the impugned order dated 7th December, 2018. Accordingly, the order dated 7th December, 2018 should be quashed and set aside and a direction be issued to the State respondents for granting approval to the recommendation made by the Special Class-III DPC for consideration of their case for regularization.

Learned senior counsel further submits that when the consideration for the recommendation of the Special Class-III DPC was made, a new Government was formed in Manipur and it was for this reason that the impugned order dated 07-12-2018 was issued as the process was started during the earlier Government.

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He has placed reliance in the case of Moti Ram Vs Suraj Bhan reported in (AIR) 1960 SC 655, K. Manjushree Vs State of Andhra Pradesh & Anr reported in (2008) 3 SCC 512, Joint Action Committee of Air Line Pilots' Association of India (ALPAI) & Ors Vs. Director General of Civil Aviation & Ors reported in (2011) 5 SCC 435, Bhavnagar University Vs Palitana Sugar Mill(P) Ltd & Ors reported in (2003) 2 SCC 111, Bharat Singh & Ors Vs Sstate of Haryana & Ors reported in (1988) 4 SCC 524 and Shyam Telelink Limited now Sistema Vs Union of India reported in (2010) 10 SCC 165.

[16] Mr. A. Romenkumar, learned counsel for the petitioners in WP(C) 26 of 2018 while endorsing the submission made by the learned senior counsel for the petitioners in WP(C) No. 73 of 2019 further submits that as the Special Class-III DPC for regularization of 502 adhoc appointees were done in pursuance to the policy decision of the Government as envisaged in the OM dated 03-10-2013. The State respondents are therefore bound to accord approval to the proceedings for regularization. He also submits that when similarly placed adhoc employees of the State Government were regularized pursuant to the OM dated 03-10- 2013, the petitioners have also a right to have their adhoc appointment regularized in terms of the OM dated 03-10-2013 and as recommended of the Special Class-III DPC. He further submits that the Joint Secretary Education(S) is also a member of the Special Class-III DPC which was constituted by the Order dated 27th December, 2016 and therefore, he could not have issued the order rejecting the recommendation made by the Special Class-III

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DPC wherein, the Joint Secretary, Education (S) is also a member and on this ground alone, the impugned order dated 7th December, 2016 deserves to be quashed and set aside. He also submits that as the petitioner was appointed to a substantive post, her case is an irregular appointment and not an illegal appointment.

He has placed reliance in the case of State of J & K Vs District Bar Association, Bandipara reported in (2017) 3 SCC 410, P. Tulsi Das Vs Government of Andhra Pradesh reported in (2003) 1 SCC 364, State of Punjab Vs Jagdish Kaur reported in (2011) 14 SCC 588, Law Veikhui Vs. State of Manipur reported in (2016) 2 NEJ 224, L. Jayantakumar Singh Vs State of Manipur reported in (2016) 1 NEJ 302, Dhananjoy Karamkar Vs. State of W.P reported in (2015) 17 SCC 504, State of Haryana Vs. Rameshchand reported in (2015) 17 SCC 618, F.C.I Vs. Head Load Labour Congress reported in (2018) 17 SCC 92, State of Bihar Vs. Sunny Prakash reported in (2013) 3 SCC 559, State of Karnataka Vs. All India Manufacturers Organization reported in (2006) 4 SCC 683, Jivan Lal Vs. Pravin Krishna reported in (2016) 15 SCC 747, State of Tamil Nadu Vs. V.K Shyam Sunder reported in (2011) 8 SCC 737, Management of the Balzara Co- operative Marketing cum Processing Society Ltd. Vs. Workman Pratap Singh reported in (2019) 2 SCC 743, State of Karnataka Vs. M.L Kesari reported in (2010) 9 SCC 247, State of Bihar Vs. Kirti Narayan Prasad reported in (2019) 2 SLR 84 (SC), Siraj Ahmad Vs. State of U.P reported in 2019(17) SCALE 626, Narendra Kumar Tiwari Vs. State of Jharkhand reported in (2018) 8 SCC 238, ONGC Ltd. Vs. Petroleum Coal Labour Union reported in (2015) 6 SCC 494, Lalremruati Vs. Mizoram State

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Information Commission reported in (2010) 2 GLT 198, State of Rajasthan Vs. R. Dayal reported in (1997) 10 SCC 419, Arjun Singh Rathore Vs. B.N Chaturvedi reported in (2007) 11 SCC 605 and State of U.P Vs. Mahesh Narain reported in (2013) 4 SCC 169

[17] Mr. H. Lenin, learned Addl. AG, Manipur appearing for the State respondents on the other hand submits that the appointment of the petitioners were made without public notice nor on the basis of any recommendation by any DPC. Their adhoc appointment were made for a specific period of time and which was not extended beyond the year 2000. He further submits that in the Office Memorandum dated 03-10-2013, the adhoc employees of the Education (S) Department were not considered due to uncertainty of the number of adhoc employees under Education (S) Department. Further submissions have been forwarded by the learned Addl. AG, Manipur that the Special Class-III DPC was not conducted as per applicable rules under the RTE Act, 2009 and therefore, proceedings of the DPC was cancelled by the order dated 07-12-2018. As the petitioners were appointed without any public advertisement and without following due process of appointment, the case of the petitioners cannot be considered for regularization. Further, as the petitioners were not found qualified under the Notification dated 23-08-2010 issued by the NCTE, their case cannot be considered. The petitioners are therefore not eligible for appointment as Primary Teacher or Graduate Teacher as per the NCTE norms.

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[18]          He submits that the impugned order dated 7th

December, 2018 was passed after taking approval from the competent authority of the Department of Personnel including the Minister concerned. He also place reliance in the case of Secretary, State of Karnataka & Ors Vs Uma Devi (3) & Ors reported in (2006) 4 SCC 1 and Municipal Corporation, Jabalpur Vs. Om Prakash Dubey reported in (2007) 1 SCC 373. He further submits that the Cabinet has taken a decision on 24-03-2017 for discontinuation of the Stage of interview for junior level posts and also approved to the discontinuation of the stage of interview in direct recruitment for junior level posts (Grade - III & IV) in all departments under the Government of Manipur with immediate effect and existing Recruitment Rules for Grade III & IV posts be amended accordingly. In case of any recruitment process that has not been completed, the concerned department shall place the matter before the Cabinet. He therefore submits that the earlier Cabinet decision which was taken on 29-11-2016 for regularizing the service of 502 adhoc employees in the Education (S) Department through the Special Class-III DPC against the existing vacant post was nullified by the Cabinet decision taken on 24-03- 2017. Under the circumstances, as the petitioners were not appointed after making public advertisement nor after following due process of recruitment and further, on the basis of the Cabinet decision taken on 24-03-2017, the impugned order dated 7th December, 2018 was issued and therefore both the writ petitions deserves to be dismissed.

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[19]          I have considered the submissions forwarded by the
learned counsel for the parties.

[20]          This Court has considered the Office Memorandum

dated 3rd October, 2013 which provided for regularization in respect of 288 direct recruit adhoc employees in various Government Departments/Offices. The said policy decision was taken on the basis of a report submitted to the State Government and on examination of the said report, the State Government took a policy decision for regularizing 288 direct recruit adhoc employees who were appointed against Group A, B, C & D posts in 19 (nineteen) Department subject to certain conditions which are reproduced herein below:

"i) Clear vacant posts in the grade or equivalent mush be available for regularization;

ii) Persons must be serving on adhoc basis continuously from 23-

03-2006 onwards on the strength of specific Court Orders or on specific orders of the government with the approval of the State Cabinet;

iii) Duty Certificate certifying that the concerned adhoc employee is serving continuously till date on the ground mentioned above and duly counter signed by Administrative Secretaries is to be placed before the Special Departmental Promotion Committee;

iv) In all cases where the adhoc employee has remained in service on the strength of court orders, the relevant court orders may be furnished before the Special Departmental Promotion Committee;

v) Regularization shall be with prospective effect and no retrospective effect will be allowed."

Further, Clause 9 of the OM dated 03-10-2013 provides as under :-

"After regularization of the above mentioned adhoc employees, it will be deemed that there are no adhoc employees in the

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State Government of Manipur except Education (S) Department, which is separately under consideration."

It is an admitted fact that the said 288 direct recruit adhoc employees of various Government Departments were thereafter regularized after the issuance of the OM dated 3rd October, 2018.

[21] As provided under Clause 9 of the OM dated 3rd October, 2013, the Department of Education (S) also placed the Memorandum for the Cabinet and the relevant portions have been already extracted herein above. On consideration of the Memorandum for Cabinet, the Cabinet took a decision on 29-11- 2016 approving for regularizing the services of 502 adhoc employees of the Education (S) Department through Special Class

-III DPC against the existing vacant post

[22] On the basis of the Cabinet decision dated 29-11-2016, the Education (S) Department constituted a Special Class-III DPC for regularization of the services of 502 adhoc employees of the Education (S) Department under the Government of Manipur wherein, the Direction of Education (S), Manipur was the Chairman and the Joint Secretary, Education (S), Additional Director, Education (S) (Valley), Additional Director, Education (S) (Hills), Manipur and Additional Director Education (S), Manipur were members. The constitution of the Special Class-III DPC was constituted after taking concurrence of the Department of Personnel on 09-12-2016 and the concurrence of the Finance

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Department on 20-12-2016. These are all projected in the order dated 27th December, 2016.

[23] Thereafter, Special Class-III DPC proceeded for considering the case of 502 direct recruit adhoc employees of the Department by issuing a Notification dated 28th December, 2016 and in the annexure appended on 28th December, 2016, the names of the petitioners were also included. On conclusion of the exercise taken by the Special Class-III DPC, the recommendations were forwarded to the Government by letter dated 11th January, 2017. Thereafter, the impugned order dated 7th December, 2018 was issued on grounds which have also been extracted herein above.

[24] This Court has also considered the Notification dated 23-08-2010 issued by the National Council for Teachers Education which lays down the minimum qualification for a person to be eligible for appointment as a teacher in Clause (i) to (viii) in Schools referred to in Clause (n) of Section 2 of the Right of Children to Free and Compulsory Education Act, 2009 w.e.f., the date of notification. A reading of the Notification clearly indicates that it does not have retrospective effect. Further, Para 4 of the Notification dated 23rd August, 2010 provides for Categories of teachers appointed for Class I to VIII prior to date of the Notifications need not acquire the minimum qualifications specified in Para (I) of the Notification. Further, Para 4 (c) again provides that teachers appointed before 3rd September, 2001 in accordance with the prevalent Recruitment Rules need not acquire the minimum qualification specified in Para (I) of the notification. Considering the Notification dated 23rd August,

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2010, this Court is of the considered opinion that the said Notification would have no application to the case of the petitioners inasmuch as they were all appointed prior to 3rd September, 2001 and before the issuance of the Notification dated 23rd August, 2010.

[25] As regards the submission made by the learned Addl. AG that the petitioners were appointed without following due procedure of appointment and without public advertisement, it would be pertinent to state here that all these aspects were considered by the Cabinet as well as the Special Class-III DPC. Therefore, this Court is of the considered opinion that the Joint Secretary, Education (S) who was also a member of the Special Class-III DPC constituted by the order dated 27th December, 2016 would have no jurisdiction to reject the recommendation made by the Special Class-III DPC which was constituted on the basis of the Cabinet decision.

[26] This Court has also perused the records which have been placed before this Court by the learned Addl. AG, Manipur wherein, the Cabinet decision taken on 24-03-2017 is also enclosed. A perusal of the Cabinet decision taken on 24-03-2017 does not in any way effect the proceedings of the Special Class-III DPC held on 30-12-2016 to 31-12-2016 inasmuch as the process of the Special Class-III DPC was completed on 31-12-2016 prior to the Cabinet decision taken on 24-03-2017. The Cabinet decision taken on 24-03-2017 only provides for disqualification of the Stage of interview for junior level posts. Discontinuation of the stage of interview in direct recruitment for junior Level posts (Grade III & IV)

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in all Departments under the Government of Manipur with immediate effect and existing recruitment rules of Grade III and IV posts be amended accordingly. It also indicates that in case of any recruitment process that has not been completed, the concerned department shall place the matter before the Cabinet. This would clearly indicate that the recommendation of the Special Class-III DPC is not affected by the Cabinet decision taken on 24-03-2017 and therefore, there was no impediment on the part of the State respondents to have proceeded for considering the recommendation made by the Special Class-III DPC and thereafter, pass appropriate orders.

[27] The learned Addl. A.G has produced before this Court the full set of the proceedings of the Meeting of the Special Class- III DPC for regularization of the services of the 502 (five hundred and two) adhoc employees of Education (S) Department held from 30th to 31st December, 2016 wherein it is indicated that out of the 502 persons only 432 (four hundred and thirty two) persons appeared before the Special Class-III DPC. After considering the relevant documents, i.e. appointment orders, subsequent extension orders, duty service attestation form along with educational certificate, the Special Class-III DPC made its recommendation.

The relevant portions of the recommendations of the Special Class-III DPC are reproduced herein below:

"9. The Committee, in view of the facts & circumstances deliberated in the proceeding paras, recommended the following for considerations;

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              i)      Regularization of the 187 (One hundred eighty seven)

adhoc Graduate Teachers as listed at Annexure-VIII against the post indicated against each of them in consideration of the deliberations at para-8.

ii) Regularization of 157 (One hundred fifty-seven) adhoc Primary Teachers and 4 (four) adhoc Matriculate Teachers against the posts indicated against each of them as listed at Annexure-IX.

vii) To authorize the Director or Education (S), Manipur to re- examine the cases of the 21 (twenty one) adhoc employees who are listed at Annexure-XIV on case to case basis and submit a detailed report to the Government for these 21 (Twenty-one) cases need further verification in terms of their initial appointments/extensions/ educational certificates/ qualifications/ age/ identity."

The names of petitioner Nos.1, 3, 4, 5, 8 and 9 in WP(C) No.73 of 2019 and name of petitioner in WP(C) No.26 of 2018 appears in Annexure VIII and the names of petitioner Nos.2, 6 and 10 of WP(C) No.73 of 2019 appears at Annexure IX and the name of petitioner No.7 in WP(C) No.73 of 2019 appear at Annexure XIV.

Perusal of the proceedings of the Special DPC as well as Annexures appended thereto would indicate that all the petitioners in both the writ petitions except petitioner No.7 in WP(C) No.73 of 2019 were recommended by the Special Class-III DPC. As regards petitioner No.7 in WP(C) No.73 of 2019, the Director of Education (S) was authorized to re-examine the case on case to case basis and submit a detailed report to the Government as the case needs further verification in terms of their initial appointment and extension/educational certificate/ qualification/ age/ identity.

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[28]          In the case of State of Karnataka & Ors Vs M.L.Kesari

& Ors reported in (2010) 9 SCC 247 the Hon'ble Supreme Court has held as under:

"6. This Court further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court however made one exception to the above position and the same is extracted below :

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [1967 (1) SCR 128], R.N. Nanjundappa [1972 (1) SCC 409] and B.N. Nagarajan [1979 (4) SCC 507] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. ...."

7. It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, if the following conditions are fulfilled :

(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal.

In other words, the State Government or its instrumentality should have employed the employee and

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continued him in service voluntarily and continuously for more than ten years.

(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.

8. Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006).

9. The term `one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.

10. At the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad-hoc/casual employees were still pending before Courts. Consequently, several departments and instrumentalities did not commence the one- time regularization process. On the other hand, some Government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of Para 53 of the decision in Umadevi, will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six month period mentioned in para 53 of Umadevi has expired. The one-time exercise should consider all daily-

wage/adhoc/those employees who had put in 10 years of

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continuous service as on 10.4.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one time exercise will be concluded only when all the employees who are entitled to be considered in terms of Para 53 of Umadevi, are so considered.

11. The object behind the said direction in para 53 of Umadevi is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure."

[29] The contention of learned Addl. A.G relying in the case of Uma Devi (supra) that the petitioners' appointment are contrary to Rules and, therefore their appointments are illegal has been considered by this Court. It has to be noted that all the petitioners were appointed on adhoc basis against substantive post and were given extension from time to time and had also the requisite qualification under the Rules of 1995 their appointment can be considered only as irregular.

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In the case of Siraj Ahmad Vs State of Uttar Pradesh & Anr reported in 2019 (17) SCALE 626, the Hon'ble Supreme Court held as under:

"14. This Court held, that where the appointment are not made or continued against sanctioned posts or where the persons appointed do not possesses the prescribed minimum qualifications, the appointment will be considered to be illegal. However, when the person employed possessed the prescribed qualifications and is working against the sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular."

[30] The contention of the learned counsel for the petitioners that their cases were rejected by the impugned order dated 7.12.2018 only because there was a change of Government in the State of Manipur has also been considered.

In the case of State of Karnataka & Anr Vs All India Manufactuters organisation and Ors reported in (2006) 4 SCC 638 the Hon'ble Supreme Court held as under:

"66. Taking an overall view of the matter, it appears that there could hardly be a dispute that the Project is a mega project which is in the larger public interest of the State of Karnataka and merely because there was a change in the Government, there was no necessity for reviewing all decisions taken by the previous Government, which is what appears to have happened. That such an action cannot be taken every time there is a change of Government has been clearly laid down in State of UP V Johri Mal: (2004) 4 SCC 714 and in State of Haryana V State of Pubjan: (2002) 2 SCC 507 where this Court observed thus:

"[I] In the matter of governance of a State or in the matter of execution of a decision taken by a previous Government, on the basis of a consensus arrived at, which does not involve any political philosophy, the succeeding Government must be held duty-bound to continue and carry on the unfinished job rather than putting a stop to the same."

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In the case of State of Tamil Nadu & Ors Vs K.Shyam Sunder & Ors reported in (2011) 8 SCC 737, the Hon'ble Supreme Court held as under:

"35. Thus, it is clear from the above, that unless it is found that act done by the authority earlier in existence is either contrary to statutory provisions, is unreasonable, or is against public interest, the State should not change its stand merely because the other political party has come into power. Political agenda of an individual or a political party should not be subversive of the rule of law."

[31] All the petitioners were appointed to substantive posts, though on adhoc basis, and had also the requisite qualification as prescribed by the Rules of 1995 i.e., the prevailing Rules when the petitioners were appointed. This Court has already come to the finding that the Notification dated 23rd August, 2010 issued by the NCTE would not apply to the petitioners. This Court has also come to the finding that the appointment of the petitioners are only irregular and not illegal.

The Special Class-III DPC, which was constituted on the basis of Cabinet decision, having already made its recommendation by the letter dated 11th January, 2017, the State respondents are bound to consider the said recommendation particularly when it is a policy decision of the Government.

[32] In the facts and circumstances of what has been discussed hereinabove, the impugned order dated 7.12.2018 passed by the Joint Secretary, Education (S), Government of Manipur is set aside and quashed. The State respondents are

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directed to forthwith consider the proceedings of the Special Class- III DPC submitted by the letter dated 11.1.2017 written by the Director of Education (S), and addressed to the Commissioner, Education (S), Government of Manipur and take appropriate decision for regularization of the petitioners within a period of 1 (one) month from the date of receipt of a copy of the order of this Court.

No cost.

Registry is directed to return the records to Mr. H. Lenin, learned Addl. AG, Manipur forthwith.

                                                                                         JUDGE




Priyojit/kim                    RAJKUMAR

Digitally signed by RAJKUMAR PRIYOJIT SINGH DN: c=IN, o=High court of manipur, ou=HIGH COURT OF MANIPUR, pseudonym=f4c2dc1e6523287d7191474520fdea810aea3dbd3

PRIYOJIT SINGH 892667382727c0bc7feaada, postalCode=795002, st=MANIPUR, serialNumber=4b3fb011d5ab7a48771e2ed5a0b5b95e75ce0a5 8008f265840361e8df078740f, cn=RAJKUMAR PRIYOJIT SINGH Date: 2021.11.22 16:30:12 +05'30'

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