Page |2 vs The State Of Manipur
2022 Latest Caselaw 294 Mani

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SHAMURAILATP
AM SUSHIL                                   IN THE HIGH COURT OF MANIPUR
SHARMA                                                AT IMPHAL

Digitally signed by
                                                     WP(C) No. 208 of 2017
SHAMURAILATPAM SUSHIL
SHARMA
Date: 2022.07.12 17:02:12 1.    Yanglem Herojit Singh, aged about 29 years, S/o. Y. Bijoy
+05'30'                         Singh, resident of Shamurou Awang Leikai Imphal West
                                District Manipur.

                          2.    Yaikhom Vivekananda, aged about 29 years, S/O.
                                Yaikhom Birendra, resident of Khural Chingangbam
                                Leikal, Imphal East District Manipur.

                          3.    Priyanka lrungbam, aged about 25years, D/o. Irungbam
                                Birendra Kumar, resident of Lamsang Bazar, Imphal West
                                District, Manipur.

                          4.    Huirem Chandrajini Devi, aged about 27 years, D/O.
                                Huirem Ibotombi Singh, resident of Samurou Awang
                                Leikal, Imphal West District, Manipur.

                          5.    Supriya Laishram, aged about 26 years, D/o. Laishram
                                Subhashchandra Singh, Keishampat, Thiyam Leikai,
                                Imphal West District, Manipur.

                          6.    Takhellambam Sanahanbi Devi, aged about 26 years, D/o.
                                T. Sarat Singh, resident of Kongba Nongthombam Leikai,
                                Imphal East District Manipur.

                          7.    Nirmala Maibam, aged about 26 years, D/o. M. Tikendrajit
                                Singh, resident of Kachikhul Mayai Leikai, Imphal West
                                District, Manipur.




                          W.P.(C) No. 208 of 2017
                                                              Page |2



8.    Kripalini Ningombam, aged about 29 years, D/o. N.
      Imomcha Singh, resident of Wangkhei Ayangpalli, Imphal
      East District Manipur.

9.    Thoidingjam Jogitabali Devi, aged about 27 years, D/o. Th.
      Jogimohon Singh, resident of Khurai Thoidingjam Leikai,
      Imphal East District Manipur.

10. Julia Sunderi Yumnam, aged about 29 years, D/o. Y.
      Sunderlal, Chingamakha Kshetri Leikai, Singjamei, Imphal
      West District, Manipur.

11. K. Sarda Devi, aged about 26 years, D/o. K. Ibotombi
      Singh, Wangkhei Khunou Near Citizen Club, Imphal East
      District Manipur.

12. Basu Langpoklakpam, S/O. L. Kulachandra, resident of
      Haobam Marak Ngangom Leikai, Imphal West District,
      Manipur.

13. Nivedita Oinam, aged about 29 years, D/o. Oinam Indrajit
      Singh, resident of Singjamei Oinam Thingel, Imphal,
      Manipur.

14. Ningthoukhongjam Reetisana, aged about 28 years, D/o.
      N. Nimai Singh, Konjeng Leikai Club Bazar, Imphal West
      District, Manipur.

                                                ........ Petitioners.

                                -Versus-




W.P.(C) No. 208 of 2017
                                                                         Page |3



1.    The State of Manipur, represented by the Commissioner,
      (Horticulture       & Soil Conservation),            Government    of
      Manipur.

2.    The Commissioner/ Secretary (DP), Government of
      Manipur.

3.    The     Director,     (Horticulture      &    Soil    Conservation),
      Government of Manipur.

                                                     ........ Respondents.

4. K. Jaswabanta Sharma, now serving as Asstt. Subject Matter Specialist in the Office of the Deputy Director (HSC), Kangpokpi.

5. Soraisam Surajkumar Singh, now serving as Asstt. Subject Matter Specialist in the Office of the D.O. (HSC), Churachandpur.

6. Bharun, now serving as Asstt. Subject Matter Specialist in the Office of the Deputy Director (HSC), Kangpokpi.

7. CNJS Arangba Mangang, now serving as Asstt. Soil Conservation Officer in the Office of the D. O. (HSC), Tamengiong.

8. Ratnamala Thokchom, now serving as Farm Manager in the Office of the D. O. (HSC), Tamenglong.

9. Tarini Wangkheimayum, now serving as Asstt. Agriculture Officer (SC) in the Office of the D.O. (HSC), Churachandpur.

W.P.(C) No. 208 of 2017 Page |4

10. Tongbram Rojina Devi, now serving as Asstt. Agriculture Officer (SC) in the Office of the D.O. (HSC), Tamenglong.

11. Dr. Uritkhinbam Supriya Devi, now serving as Asstt.

Agriculture Officer (SC) in the Office of the D.O. (HSC), Tamenglong.

12. Elizabeth Longjam, now serving as Asstt. Subject Matter Specialist in the Office of the D.O. (HSC), Tamengiong.

13. Yumnam Santosh Singh, now serving as Asstt. Subject Matter Specialist in the Office of the W.D.O. Moreh.

14. Thounaojam Jason, now serving as Asstt. Agriculture Officer (SC) in the Office of the D.O. (HSC), Senapati.

15. Laishram Laishana Devi, now serving as Asstt. Soil Conservation Officer in the Office of the D.O. (HSC), Churachandpur.

16. Khundrakpam Homeshwari Devi, now serving as Asstt.

Agriculture Officer (SC) in the Office of the D.O. (HSC), Senapati.

17. Abel Deikho, now serving as Asstt. Agriculture Officer (SC) in the Office of the D.O. (HSC), Senapati.

18. Thuimaya Kashung, now serving as Asstt. Soil Conservation Officer in the Office of the D.O. (HSC), Ukhrul.

19. Ngailenchong Kipgen, now serving as Farm Manager in the Office of the Deputy Director (HSC), Kangpokpi.

W.P.(C) No. 208 of 2017 Page |5

20. Tinkhanthem Haokip, now serving as Asstt. Subject Matter Specialist in the Office of the D.O. (HSC), Senapatl.

21. Athaipou Palmei, now serving as Asstt. Subject Matter Specialist in the Office of the D.O. (HSC), Senapati.

......Private Respondents.

BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Petitioners :: Mr. Y. Nirmolchand, Sr. Advocate

For the Respondents :: Mr. H. Debendra, GA for R-1 to R-3;

Mr. HS Paonam, Sr. Advocate for R-4 to R-9;

Mr. H. Kenajit, Advocate for R-10 to R-15;

Mr. N. Ibotombi, Sr. Advocate for R- 16 to R-21.

Date of Hearing and reserving Judgment & Order :: 16.06.2022

Date of Judgment & Order :: 04.07.2022

JUDGMENT AND ORDER (CAV)

This writ petition has been filed to quash the

appointment and regularization order dated 28.11.2016 in respect of

the respondents 4 to 21 published in Manipur Gazette on 30.11.2016

and posting order dated 28.11.2016 issued by the Commissioner,

Horticulture and Soil Conservation, Government of Manipur and to

declare the cabinet decision dated 7.11.2016 and 21.11.2016

resulting in issuance of the impugned orders as bad in the eye of law.

W.P.(C) No. 208 of 2017 Page |6

2. The case of the petitioners are that they are all

unemployed graduates in Agriculture/Horticulture either B.Sc.

Agriculture or B.Sc. Horticulture from different Universities and after

obtaining degrees, they are searching for Government job

commensurate with their educational qualification. The Under

Secretary (H&SC) vide letter dated 14.4.2016 conveyed to the

Director (H&SC) regarding approval of the cabinet decision for

engagement of Horticulture Assistant/Field Consultant/Data Entry

Operator on contract basis under Technical Support Group

Programme under Mission for Integrated Development of

Horticulture (MIDH). Pursuant to the notification dated 20.4.2016, the

third respondent issued notification dated 29.4.2016 declaring the

result for the contractual posts of Data Entry Operator and

Horticulture Assistant/Field Consultant in the MIDH Section of the

Department of Horticulture and Soil Conservation selecting 6 Data

Entry Operator and 18 Horticulture Assistant/Field Consultant

candidates.

3. The Secretariat of the Confidential and Cabinet

Department issued a cabinet meeting notice dated 7.11.2016 to

discuss 22 Agenda, including regularization of 18 Assistant

Agriculture Officer (AAO) appointed on contract basis in respect of

W.P.(C) No. 208 of 2017 Page |7

Horticulture Department as Agenda No.22. On 28.11.2016, the

Commissioner issued an order regularizing the contract appointment

of 18 Horticulture Consultant/Assistant, MIDH as AAO in Horticulture

and Soil Conservation Department with their respective posting at

various districts. Challenging the same, the petitioners have filed the

present writ petition.

4. Respondents 1 to 3 filed affidavit-in-opposition stating

that taking in view the holistic sector grown of Horticulture in Manipur,

the Department of Horticulture and Soil Conservation with the

approval of the Administrative Department, took a decision for filling

up of 18 posts of Horticulture Assistant/Field Consultant and 6 Data

Entry Operators on contractual basis under MIDH from the eligible

Agri/Horti graduates/candidates. The third respondent in the course

of implementation of MIDH made proposal on 29.9.2015 to the

Commissioner for according administrative approval for engagement

of the employees on contract basis on payment of fixed remuneration

under a Detailed Project Report. The Department of Horticulture and

Soil Conservation, after due process, submitted the matter before the

State Level Committee of Officers chaired by the Chief Secretary for

consideration and according approval to the proposal for contract

engagement under MIDH.

W.P.(C) No. 208 of 2017 Page |8

5. The Committee of Officers in its meeting held on

10.12.2015 recommended contractual engagement of staff in the

Horticulture and Soil Conservation Department and as per the

recommendations of the Committee of Officers, the Department

referred the matter to the State Cabinet for approval. After obtaining

approval from the State Cabinet, the Department issued notification

dated 20.4.2016 inviting application from the intending candidates for

appointment of Horticulture Assistant/Field Consultant and Data

Entry Operator on contract basis. Thereafter, on the basis of the

recommendation of a duly constituted DPC, the private respondents

were appointed as Horticulture Assistant/Field Consultant on

contract basis vide order dated 29.4.2016 by following the

reservation policy.

6. It is stated that in the course of time, there were 36

vacancies in the grade of AAO/equivalent in the Department and as

per the relevant Recruitment Rules, 75% of the vacancies are to be

filled up by direct recruitment and 25% by promotion. The

Department took a decision for regularization of 18 contract

employees serving as Horticulture Assistant/Field

Consultant/AAO/Equivalent as a policy decision for meeting the

exigencies of service and shortage of staff. Accordingly, the matter

W.P.(C) No. 208 of 2017 Page |9

was referred to the Cabinet and the Cabinet after due consideration

granted approval of the proposal for regularization on 7.11.2016.

The proposal for exemption from consultation with MPSC in the

regularization of 18 posts has also been approved by the Cabinet.

After obtaining approval from the Finance Department as well as the

concurrence of the Department of Personnel, the Horticulture and

Soil Conservation Department issued the impugned order dated

28.11.2016 regularizing the services of 18 AAOs.

7. Respondents 4 to 9 filed affidavit-in-opposition stating

that the petitioners are now engaged in other public sector

organisations, including the Central and State Governments and they

are in no way concerned with the posts of the private respondents

who were absorbed as AAO pursuant to the Cabinet decision and,

therefore, the petitioner has no locus to challenge the absorption of

the private respondents. Further, there were 124 posts of AAO

available in the State Government and the petitioners can well

considered in terms of the rules provided they applied as and when

the advertisement is issued by the competent authority. Since the

writ petition has been filed with motive disturbing the regular

appointment of the private respondents, the same is liable to be

dismissed.

W.P.(C) No. 208 of 2017 P a g e | 10

8. Respondents 10 to 15 filed affidavit-in-opposition

stating that the writ petition is not maintainable as the petitioners

have no locus standi to file the writ petition. Further, the petitioners

are either failed candidates or candidates who had not even applied

for the said posts when it was advertised. As such, the prayer of the

petitioners are not maintainable and the writ petition is liable to the

dismissed.

9. Respondents 16, 18 to 21 filed affidavit-in-opposition

stating that the petitioners 4 and 10 applied for the post pursuant to

the advertisement, but they failed to get selected and as far as the

other petitioners 1 to 3, 5 to 9 and 11 to 14 are concerned, they did

not even responded to the said advertisement. In view of the above

facts, the present writ petition is not maintainable as the petitioners

have no locus standi to file the present writ petition.

10. Assailing the impugned regularization order, Mr.

Nirmolchand, the learned senior counsel for the petitioners submitted

that the post of Assistant Agriculture is Class-II/Group B Gazetted

post. As such, the same should be filled up through MPSC in terms

of the relevant Recruitment Rules and that the official respondents

have no power to act against the statutory Recruitment Rules framed

under Article 309 of the Constitution of India and that the

W.P.(C) No. 208 of 2017 P a g e | 11

regularization of 18 numbers consultant/Assistant, MIDH who had

served only for 6 months as AAO vide order dated 28.11.2016 is in

gross violation of Articles 14, 16 and 309 of the Constitution of India.

11. The learned senior counsel further submitted that the

respondents 4 to 21 are engaged as Consultant/Assistant, MIDH with

separate remuneration and they cannot be regularized to the post of

Assistant Agriculture Officer in Horticulture Department. Thus, the

official respondents acted arbitrarily and illegally by regularizing the

contract employees of other posts to the post of Assistant Agriculture

Officer which is violation of relevant Recruitment Rules framed under

Article 309 of the Constitution of India.The Cabinet decision for

regularization of 18 contract consultant/Assistant, MIDH (who had

served for about 6 months) to the post of Assistant Agriculture Officer

is bad in the eye of law, arbitrary and deserves interference.

12. The learned senior counsel then submitted that the

impugned order 28.11.2016 curtails and forfeits the right of the

petitioners to compete for the 18 posts of Assistant Agriculture Officer

and violated the petitioners' fundamental right of public employment

opportunity. The policy decision taken by the State in exercise of its

jurisdiction under Article 162 of the Constitution of India cannot

override statutory rules framed under Article 309 of the Constitution

W.P.(C) No. 208 of 2017 P a g e | 12

of India. He would submit that the public employment is public wealth,

where all the eligible persons for the particular posts has to be

considered in accordance with the rules framed under Article 309 of

the Constitution of India.

13. The learned senior counsel for the petitioners urged

that when appointment was made in contravention of mandatory

provisions, the appointment would be illegal and cannot be

regularized by the State. He further submitted that even a policy

decision taken by the State in exercise of its jurisdiction would be

subservient to the Recruitment Rules framed by the State in terms of

a legislative Act or the proviso appended to Article 309 of the

Constitution of India.

14. The learned senior counsel argued that in making offers

of public appointment, it is necessary to follow the constitutional

scheme laid down in Articles 14 and 16 of the Constitution of India.

In the instant case, the official respondents totally ignored the

aforesaid provisions, and, therefore, the appointment/regularization

is liable to be set aside.

15. Per contra, Mr. H. Debendra, the learned Government

Advocate submitted that pursuant to the exemption granted by the

Manipur Public Service Commission to regularize 18 Horticulture

W.P.(C) No. 208 of 2017 P a g e | 13

Assistant/Field Consultant/AAO and after getting approval of the

Finance Department and also concurrence with Department of

Personnel, the Horticulture and Soil Conservation Department

issued the order dated 28.11.2016 thereby regularizing the services

of 18 AAOs. In fact, pursuant to the decision of the State Cabinet the

regularization was done to curb the situation for shortage of staff in

the Department.

16. The learned Government Advocate further submitted

that the respondents 4 to 21 were regularized/absorbed in

consonance with the existing Recruitment Rules of AAO as a policy

decision of the State Cabinet to fill up the shortage of staff, as the

duties and functions and also the requisite qualification of the two

posts, namely Horticulture Assistant/Field Consultant and AAO are

similar and there exist no difference between the two posts, except

the designation.

17. The learned Government Advocate next submitted that

the engagement of 18 Horticulture Assistant/Field Consultant and 6

Data Entry Operator are purely meant for strengthening the

implementation of the MIDH scheme effectively in the State and there

was no intention and any sort of initiative made for their regularization

to the post of AAO from the end of the Department of Horticulture

W.P.(C) No. 208 of 2017 P a g e | 14

and Soil Conservation, Manipur. Since AAO being Class-II Gazetted

post, regularization of 18 numbers of Horticulture Assistant/Field

Consultant was completely the prerogative of the Administrative

Department. In fact, the respondents 4 to 21 are highly qualified

candidates and many of them are possessing P.G. and Ph.D in

Agriculture/Horticulture. Therefore, there is no infirmity in the order

dated 28.11.2016. Arguing so, the learned Government Pleader

prayed for dismissal of the writ petition.

18. Mr. H. Kenajit, the learned counsel appearing for the

private respondent Nos. 10 to 15 collectively submitted that some of

the petitioners even did not responded to the advertisement and

therefore, the petitioners have no locus standi to file the present writ

petition. The learned counsel for the private respondents further

submit that the petitioners have got regular jobs and therefore, they

have no right to challenge the impugned order dated 28.11.2016.

19. Mr. HS Paonam, the learned senior counsel for the

private respondent No. 4 to 9 is that the private respondents who

were absorbed as AAO pursuant to the Cabinet decision and hence,

the petitioners have no locus standi to challenge the

absorption/appointment of the private respondents. They urged that

there are more than 124 posts of AAO available in the State

W.P.(C) No. 208 of 2017 P a g e | 15

Government and the petitioners can very well be considered in terms

of the Rules, provided they applied as and when the advertisement

is issued by the competent authority. Since the writ petition has been

filed with the motive of disturbing the regular appointment of the

private respondents, the learned counsel prayed for dismissal of the

writ petition.

20. Mr. N. Ibotombi, the learned senior counsel for the

private respondents No. 16,18 to 21 submitted that the petitioners 4

and 10 applied for the post pursuant to the advertisement, but they

failed to get selected and as far as the other petitioners 1 to 3, 5 to 9

and 11 to 14 are concerned, they did not even responded to the said

advertisement. In view of the above facts, the present writ petition is

not maintainable as the petitioners have no locus standi to file the

present writ petition.

21. This Court considered the rival submissions and also

perused the materials available on record.

22. The grievance of the petitioners is that the respondents

4 to 21 who were engaged/appointed as Horticulture

Consultant/Assistant cannot be regularized to the post of AAO in

Horticulture Department and regularization of the private

respondents who had served only six months as AAO vide impugned

W.P.(C) No. 208 of 2017 P a g e | 16

order is in gross violation of Articles 14, 16 and 309 of the

Constitution of India.

23. It could be seen from the records that there is no

difference that the duties, functions and educational qualification of

the two posts i.e. Horticulture Assistant/Field Consultant and

Assistant Agriculture Officer are all similar and the only difference is

designation.

24. It appears that by the impugned order dated

28.11.2016, the Governor of Manipur was pleased to order

regularization of the contract appointment of the private respondents

4 to 21, who were serving as Horticulture Consultant/Assistant, MIDH

as Assistant Agriculture Officer in the Horticulture and Soil

Conservation Department in the scale of pay of Rs.9300-34800 plus

GP Rs.4200/- against the post creation orders indicated against each

of them in the impugned order with immediate effect as approved by

the State Cabinet in its meetings held on 7.11.2016 and 21.11.2016

respectively with an exemption from consultation with MPSC.

25. Though the petitioners contended that the post in

question is to be filled up 25% by promotion and 75% by direct

recruitment in consultation with the MPSC as per the Rules called

Assistant Agriculture Officer and Other Posts, nothing has been

W.P.(C) No. 208 of 2017 P a g e | 17

produced to establish the same. On the other hand, on a perusal of

the materials produced by the parties, this Court finds that on

29.9.2015, the Director of Horticulture and Soil Conservation, in the

course of implementation of MIDH programme, has made a proposal

to the Commissioner for according administrative approval for

engagement of 18 numbers of Horticulture Assistant/Field

Consultant and 6 Data Entry Operator on contract basis on a fixed

remuneration. After due process, the Chief Secretary, accorded

approval to the proposal for contract engagement of 18 Horticulture

Assistant/Field Consultant and 6 Data Entry Operator under MIDH.

Accordingly, the Committee also recommended the contractual

engagement of staff in the Horticulture Department under the

Technical Support Group Programme of Mission for Integrated

Development of Horticulture for a period of one year with certain

conditions. Pursuant to the Committee's recommendation, the

Department referred the matter to the State Cabinet and the State

Cabinet granted its approval on 8.3.2016.

26. The argument of learned counsel for the petitioners is

that earlier the MPSC invited application from open market for

employment of 32 numbers of posts of AAO/Equivalent by direct

recruitment and thereafter, duly selected the candidates through

W.P.(C) No. 208 of 2017 P a g e | 18

MPSC as per the Recruitment Rules. As such, any appointment for

the post of AAO, the same is to be done in terms of the relevant

Recruitment Rules. Though the petitioners have produced the earlier

advertisement dated 8.11.2014 issued by the MPSC calling for

applications to fill up the posts of AAO/Equivalent from the eligible

candidates for direct recruitment, that itself will not confer any right

on the petitioners to challenge the impugned order dated 28.11.2016.

The petitioners themselves stated that the Class-II Gazetted post is

to be filled up 25% by promotion and 75% by direct recruitment.

Nothing has been produced by the petitioners to show that the said

advertisement is meant for 25% by promotion.

27. According to the learned counsel for the private

respondents, the petitioners have no locus standi to file the writ

petition under Article 226 of the Constitution of India before the High

Court as the private respondents would stand on a completely

different footing as compared to the petitioners. It was also submitted

that the decision to regularize the private respondents was taken by

the State Cabinet and pursuant whereupon the impugned order was

issued by the Commissioner regularizing the services of the

respondents 4 to 21in the post of AAO. Therefore, there is no flaw

in issuing the impugned order.

W.P.(C) No. 208 of 2017 P a g e | 19

28. When this Court perused the materials on record, this

Court found that after obtaining approval from the State Cabinet, the

Director has issued an advertisement dated 20.4.2016 calling for

application from the eligible candidates for appointment of

Horticulture Assistant/Field Consultant and Data Entry Operator on

contract basis. On the basis of the recommendation of a duly

constituted DPC, the private respondents were appointed as

Horticulture Assistant/Field Consultant on contract basis on

29.4.2016 by following the reservation policy.Thus, it is clear from the

materials that the initial engagement of the private respondents as

Horticulture Assistant/Field Consultant has not been challenged by

the petitioners. On the other hand, the plea of the petitioners is that

the relevant rule permits 25% by promotion and 75% by direct

recruitment that too in consultation with the MPSC.

29. The official respondents stated that it is true as per the

relevant Recruitment Rules, 75% of the vacancies are to be filled by

direct recruitment and 25% by promotion. Accordingly, the

Department took a decision for regularization of 18 contract

employees who were serving as Horticulture Assistant/Field

Consultant/AAO/Equivalent as a policy decision for meeting the

exigencies of service and shortage of staff and the matter was

W.P.(C) No. 208 of 2017 P a g e | 20

referred to State Cabinet. The State Cabinet, after due

consideration, granted approval of the proposal for regularization of

18 contractual employees as AAO in the Horticulture and Soil

Conservation Department on 7.11.2016.

30. On a perusal of the meeting notice dated 7.11.2016 of

the Secretariat, Confidential and Cabinet Department, this Court

finds that the 22nd Agenda is regularization of 18 AAOs appointed on

contract basis in respect of Horticulture Department. On a further

perusal of the notification dated 29.4.2016, it is clear that on the

recommendation of the DPC, an interview was held on 25.4.2016

and upon approval given by the competent authority, 6 Data Entry

Operator and 18 Horticulture Assistant/Field Consultant were

selected for the contractual posts of Data Entry Operator and

Horticulture Assistant/Field Consultant for a period of six months

which is extendable from time to time till there is sufficient provision

of fund for the said post under the Centrally Sponsored Scheme of

MIDH. Thus, the regularisation of the service of 18 contractual

Horticulture Assistant/Field Consultant as AAOs is pursuant to the

policy decision taken by the State Cabinet exempting from the

consultation with the MPSC. In fact, the Finance Department and

the Department of Personnel have also given their concurrences on

17.11.2016 and 19.11.2016 respectively.

W.P.(C) No. 208 of 2017 P a g e | 21

31. Though the petitioners contended that the appointment

of the petitioners is in contravention of mandatory provisions, nothing

has been produced to establish the same. It is also the say of the

petitioners that the State could not invoke its power under Article 162

of the Constitution of India. In support, the learned counsel for the

petitioners relied upon the decision of the Hon'ble Supreme Court in

the case of Secretary, State of Karnataka and others v.

Umadevi(3), reported in (2006) 4 SCC 1.

32. In Umadevi(3), supra, the Hon'ble Supreme Court held

as under:

"34. In A.Umarani v. Registrar, Coop. Societies, (2004) 7 SCC 112 a three-Judge Bench made a survey of the authorities and held that when appointments were made in contravention of mandatory provisions of the Act and statutory rules framed thereunder and by ignoring essential qualifications, the appointments would be illegal and cannot be regularized by the State. The State could not invoke its power under Article 162 of the Constitution to regularize such appointments. This Court also held that regularization is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution or anybody or authorities governed by a statutory Act or the rules framed thereunder. Regularisation

W.P.(C) No. 208 of 2017 P a g e | 22

furthermore cannot give permanence to an employee whose services are ad hoc in nature. It was also held that the fact that some persons had been working for a long time would not mean that they had acquired a right for regularization."

33. In the instant case, the initial engagement and/or initial

appointments of the respondents 4 to 21 for the post of Horticulture

Assistant/Field Consultant/Data Entry Operator on contractual basis

under Technical Support Group Programme under MIDH has not

been challenged by the petitioners. But the petitioners challenged the

order dated 28.11.2016, which is the order regularizing the contract

appointment of the respondents 4 to 21 as AAO. Therefore, the

decision in Umadevi(3) is not applicable to the case on hand on the

facts and circumstances given.

34. As far as the engagement of Horticulture Assistant/Field

Consultant/Data Entry Operator on contractual basis are concerned,

notification dated 23.9.2015 was issued by the Director of

Horticulture & Soil Conservation indicating the number of posts,

required qualification and the remuneration. Initially, the walk-in-

interview was postponed. However, it is seen that on 20.4.2016, a

similar notification was issued by the Director informing that walk-in-

interview for engagement of Horticulture Assistant/Field

W.P.(C) No. 208 of 2017 P a g e | 23

Consultant/Data Entry Operator on contractual basis for 6 months

will be held on 25.4.2016 at 10.00 a.m. in the office of the Director.

It is also seen from the records that the proposal for engagement of

Horticulture Assistant/Field Consultant/Data Entry Operator on

contractual basis is pursuant to the decision of the State Cabinet

taken on 8.3.2016 and on 29.4.2016, pursuant to the

recommendation of the DPC and approval given by the competent

authority, the private respondents 18 in numbers to the post of

Horticulture Assistant/Field Consultant were selected on contract

basis for a period of 6 months by following the roster. Thereafter, the

State Cabinet took a decision to regularize the services of the private

respondents who were appointed on contract basis and regularized

the services of the respondents 4 to 21 vide the impugned order

dated 28.11.2016.

35. When the State has taken a policy decision to engage

the post of Horticulture Assistant/Field Consultant/Data Entry

Operator on contractual basis and also the State Cabinet accorded

permission for such engagement, the Court cannot interfere in such

policy decision.

36. It is settled law that Courts cannot interfere with policy

either on the ground that it is erroneous or on the ground that a better,

W.P.(C) No. 208 of 2017 P a g e | 24

fairer or wiser alternative is available. Legality of the policy and not

the wisdom or soundness of the policy is the subject of judicial

review.

37. In Parisons Agrotech Private Limited v. Union of

India, (2015) 9 SCC 657, the Apex Court held:

"14. No doubt, the Writ Court has adequate power of judicial review in respect of such decisions. However, once it is found that there is sufficient material for taking a particular policy decision, brining it within the four corners of Article 14 of the Constitution of India, power of judicial review would not extend to determine the correctness of such a policy decision or to indulge into the exercise of finding out whether there could be more appropriate or better alternatives."

38. Thus, the Horticulture Department took a decision for

regularization of the private respondents serving as Horticulture

Assistant/Field Consultant/Assistant Agriculture Officer as a policy

decision for meeting the exigencies of service and shortage of staff.

Therefore, this Court is of the view that such policy decision taken by

the State Government cannot be questioned by the petitioners.

Thus, the ground taken by the petitioners that the

appointment/regularization of the private respondent is in

W.P.(C) No. 208 of 2017 P a g e | 25

contravention of the provision and/or rules is unsustainable. On the

other hand, the official respondents established that only after

following the due process of law, the appointment/regularization of

the private respondents were made.

39. The submission of the learned counsel for the private

respondents is that though pursuant to the

advertisement/notification, the petitioners 4 and 10 applied for the

post, they failed to get selected and in fact the petitioners 1 to 3, 5 to

9 and 11 to 14 did not even responded to the

notification/advertisement. Thus, the petitioners are in no way

concerned with the posts of the private respondents who were

absorbed as AAO pursuant to the State Cabinet decision and,

therefore, the petitioners have no right to challenge the

appointment/regularisation of the private respondents.

40. On a reading of the averments set out in the writ

petition, this Court finds that no plea has been made that the

petitioners that they have applied for the post pursuant to the

advertisement/notification. The petitioners have simply narrated the

issuance of advertisement, decision of the State Cabinet and finally

issuance of the impugned order. Thus, as rightly argued by the

learned counsel for the private respondents, the very locus standi of

W.P.(C) No. 208 of 2017 P a g e | 26

the petitioners is questionable. That apart, when some of the

petitioners did not apply and some have failed, they do not have any

enforceable right to question the issuance of the impugned order. In

view of the above, this Court is of the view that the petitioners have

no locus to file the writ petition. Merely stating that they are all

unemployed Graduates in Agriculture/Horticulture with B.Sc.

qualification, the petitioners cannot maintain the writ petition on

sympathy.

41. The learned counsel for the private respondents

submitted that the first petitioner has got a regular job as SMS (PP)

KVK East Goro Hills, Meghalaya; the third petitioner is working as

Assistant Professor at Mizoram Agriculture College; the fifth and

eighth petitioners are working as Assistant Professors at Pandit

Deen Dayal Upadhyay Institute of Agricultural Science, Utlou,

Manipur; the sixth and ninth petitioners are working as ATM,

Agricultural Department, Government of Manipur, the seventh

petitioner is working as Senior Research Fellow (PP) at Central

Agricultural University, Manipur; the eleventh and thirteenth

petitioners are working as Senior Research Fellow (PP) at Central

Agricultural University; the twelvth petitioners is working as SMS

(Hort.) KVK, South Gara Hills, Meghalaya and the fourteenth

W.P.(C) No. 208 of 2017 P a g e | 27

petitioner is working as Assistant Teacher under Sarva Siksha

Ashiyan (SSA) Education, Government of Manipur. According to

learned counsel, since the petitioners are working in permanent job,

they have no right to claim appointment.

42. Countering the said argument, the learned senior

counsel for the petitioners submitted that none of the petitioners were

appointed to any regular post till date and in fact, they are working

on contract basis in a project on temporary basis and undergoing

Ph.D Degree at Central Agricultural University respectively.

Therefore, the statement of the private respondents that the

petitioners are gainfully working in permanent job is totally false. The

aforesaid argument of the learned senior counsel for the petitioners

cannot be countenanced for the reason that some of the petitioners

have failed in the selection and some have not applied to the post

pursuant to the advertisement. Furthermore, the petitioners have not

challenged the initial engagement of the private respondents on

contract basis. Since the petitioners are now working elsewhere in

different positions, they cannot now question the regularization/initial

engagement of the private respondents which was done pursuant to

the decision of the State Cabinet and also based on the

recommendation of the duly constituted DPC.

W.P.(C) No. 208 of 2017 P a g e | 28

43. It is reiterated that after proper consideration of the

relevant Recruitment Rules of Assistant Agriculture Officer, the

private respondents, who are qualified contractual employees, were

regularized as a policy decision of the State Cabinet to curb the

shortage of staff in the Horticulture Department at the relevant point

of time.

44. The State Cabinet has taken a decision one-time

measure having regard to the special circumstances of the case, the

satisfactory performance rendered by the private respondents as

well as the exigencies. This Court finds that such decision of the

State Cabinet and the issuance of the impugned order are both in

consonance and in conformity with the relevant rules to save the

services of the private respondents. Therefore, this Court finds no

infirmity in the order dated 28.11.2016 regularising the contractual

appointment of the private respondents as Assistant Agriculture

Officer. That apart, as stated supra, the fact remains that the

petitioners have not challenged the initial engagement of the

petitioners. Thus, this Court is of the view that the engagement of

the private respondents are purely meant for strengthening the

implementation of the MIDH scheme effectively in the State and there

was no intention and any sort of initiative made for the regularization

W.P.(C) No. 208 of 2017 P a g e | 29

of the private respondents to the post of AAO and the regularization

of the private respondents was completely the prerogative of the

Administration Department. Therefore, the petitioners have no legal

right to question the same.

45. For all the reasons stated above, there is no merit in the

writ petition. Accordingly, the same is dismissed. No costs.

JUDGE

FR/NFR

Sushil

W.P.(C) No. 208 of 2017