Manipur High Court
Mr. John Hauzel vs The State Of Manipur Represented ... on 11 October, 2022
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
W.P. (C) No. 721 of 2020
1. Mr. John Hauzel, aged about 52 years, S/o (L) H. Jelshyam of
C.P. QRT. 5/G-5, P.O. & P.S. Lamphel, Imphal West,
Manipur;
2. Mr. Haobam Surajkishore Singh, aged about 57 years, S/o (L)
H. Amubasingh of Chingamakha Irom Leikai, P.O. & P.S.
Singjamei, Imphal West, Manipur;
3. Mr. Sarungbam Hemanta, aged about 51 years S/o S.
Ibomchasingh of keishampat Sega Road Jailor Leirak, P.O. &
P.S. Imphal, Imphal West Manipur;
4. Mr. Khoirakpam Gitchandra singh, aged about 56 years S/o
(L) Kh. Kerani Singh of Ngaikhong Khulen Makha Leikai, P.O.
& P.S. Bishnupur, Bishnupur District, Manipur;
5. Mr. Phanjoubam Brojendro Singh, aged about 57 years, S/o
Ph. Tomchou Singh of Wangkhei, Palace Compound, P.O.
Imphal & P.S. Porompat, Imphal East, Manipur;
6. Mr. Nameirakpam Laxmikanta Meetei, aged about 54 years,
S/o (L) N. Nodia Singh of Chingamakha Yanglem Leikai, P.O.
& P.S. Singjamei, Imphal West, Manipur;
7. Mr. Khaidem Rajen Singh, 50 years, S/o Kh. Birachandra of
Naoremthong Laishram Leikai, P.O. & P.S. Lamphel, Manipur;
8. Mr.Aheibam Loken Singh, aged about 50 years, S/o A.
Chaoba Singh of Langthabal Mantrikhong, Mayai Leikai, P.O.
& P.S. Wangoi, Imphal West District, Manipur and;
9. Mr. Shanoubam Amutombi Singh, aged about 57 years, S/o
Shanoujam Ibopishak Singh of Mayang Imphal, Kokchai, P.O.
& P.S. Mayang Imphal, Manipur.
...... Petitioner/s
- Versus -
1. The State of Manipur represented by the Principal
Secretary/Commissioner/Secretary (Com. & Ind.),
Government of Manipur, Old Secretariat, South Block,
Imphal West, Manipur - 795001;
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 1
2. The Principal Secretary/Commissioner/Secretary (Finance),
Government of Manipur, Old Secretariat, South Block,
Imphal West, Manipur - 795001;
3. The Principal Secretary/Commissioner/Secretary (DP),
Government of Manipur, Old Secretariat, South Block,
Imphal West, Manipur - 795001;
4. The Principal Secretary/Commissioner/Secretary (Law),
Government of Manipur, New Secretariat Building, Imphal
West, Manipur - 795001 and;
5. The Director of Commerce and Industries, Government of
Manipur, P.O. & P.S. Lamphel, Imphal West, Manipur -
795004.
........Respondent/s
with
WP(C) No. 679 of 2020
1. Yurembam Priyolata Devi, aged about 42 years, W/O (L) Y.
Hembabu Singh, a resident of Tronglaoubi Awang Leikai,
P.O. & P.S. Moirang, District Bishnupur, Manipur.
......Petitioner/s
- Versus -
1. The State of Manipur, represented by the Principal Secretary,
Department of Textile Commerce and Industries, Old
Secretariat Building, P.O. & P.S. Imphal, Imphal West
District, Manipur, Pin - 795001.
2. The Secretary/Commissioner/Principal Secretary (Finance),
Government of Manipur, Manipur Secretariat North Block,
Babupara, P.O. & P.S. Imphal, Imphal West District, Manipur
- 795001.
3. The Accountant General (A & E) Manipur, Government of
India, Babupara, Opp. Manipur Secretariat, P.O. & P.S.
Imphal, Imphal West District, Manipur - 795001.
4. The Director of Textiles, Commerce and Industries,
Government of Manipur, Opp. ICM Imphal, P.O. & P.S.
Lamphel, Pin - 795004, Manipur.
.....Respondent/s
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 2
B E F O R E
HON'BLEMR. JUSTICE AHANTHEM BIMOL SINGH
For the Petitioners : Mr. NG. Jotindra Luwang,
Adv.&Mrs. G. Pushpa,
Adv.
For the respondents : Mr. A. Vashum, G.A.
Date of Hearing : 01.09.2022
Date of Judgment & Order : 11.10.2022
Judgment & Order (CAV)
[1] Heard Mr. Ng. Jotindra, learned counsel appearing for the
petitioners in WP(C) No. 721 of 2020, Mrs. G. Pushpa, learned counsel
appearing for the petitioner in WP(C) No. 679 of 2020 and Mr. A. Vashum,
learned G.A. appearing for the respondents.
[2] WP(C) No. 721 of 2020 had been filed by 9 (nine) petitioners
with a prayer for quashing the impugned order dated 23.10.2020 and for
directing the respondents to count the period of the petitioners ad-hoc
services prior to their regularisation as qualifying services for the purpose
of availing pensionary and other retiral benefits. WP(C) No. 679 of 2020
had been filed by the wife of (L) Y. Hembabu Singh, who was serving as
Supervisory (Credit) on regular basis in the Commerce and Industries
Department, Government of Manipur, with a prayer for directing the
respondents to count the period of ad-hoc service rendered by her late
husband prior to his regular appointment for the purpose of availing
pensionary and other retiral benefits. As the facts and issues raised in the
present 2 (two) writ petitions are common and interlinked, the said 2 (two)
writ petitions were heard jointly and the same are being disposed of by this
common judgment and order.
[3] In WP(C) No. 721 of 2020, petitioner Nos. 1 and 2 were
initially appointed as Extension Officer (Industry) on 05.04.1999 on ad-hoc
basis in the Commerce and Industries Department, Government of Manipur
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 3
for a period of 3 (three) months. Petitioner No. 3 was initially appointed as
Progress Assistant on 05.04.1999 on ad-hoc basis in the Commerce and
Industries Department, Government of Manipur for a period of 3 (three)
months. Petitioner Nos. 4 & 5 were initially appointed as Inspectors
(Statistics) on 05.04.1999 on ad-hoc basis in the Commerce and Industries
Department, Government of Manipur for a period of 3 (three) months.
Petitioner No. 6 was initially appointed as Inspector (SSI) on 03.12.1991 on
ad-hoc basis in the Commerce and Industries Department, Government of
Manipur for a period of 6 (six) months. Petitioner no. 7 was initially
appointed as Supervisor (Infra) on 05.04.1999 on ad-hoc basis in the
Commerce and Industries Department, Government of Manipur for a period
of 3 (three) months. Petitioner No. 8 was initially appointed as Inspector
(Planning & Survey) on 05.04.1999 on ad-hoc basis in the Commerce and
Industries Department, Government of Manipur for a period of 3 (three)
months and petitioner No. 9 was initially appointed as LDC on 30.12.1997
on ad-hoc basis in the Commerce and Industries Department, Government
of Manipur for a period of 3 (three) months.
[4] In WP(C) No. 679 of 2020, the husband of the petitioner was
initially appointed as Village Industries Organizer on 05.04.1999 on ad-hoc
basis for a period of 3 (three) months and the period of ad-hoc service was
extended from time to time without any break. Subsequently, the ad-hoc
service of the petitioner's husband was adjusted to the post of Supervisor
(Infra) by an order dated 07.01.2020.
The ad-hoc services of all the petitioners in WP(C) No. 721 of
2020 and the ad-hoc service of the husband of the petitioner in WP(C) No.
697 of 2020 were extended from time to time by the Government and they
continued to serve on ad-hoc basis in their respective capacity without any
break till the date of regularization of their ad-hoc services.
[5] While all the aforesaid petitioners were serving in different
capacities in the Commerce and Industries Department, Government of
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 4
Manipur, the Department of Personnel & Administrative Reforms
(Personnel Division), Government of Manipur issued an office
memorandum dated 03.10.2013 laying down the policy of the government
for regularization of the ad-hoc service in respect of 288 (two hundred
eighty eight) direct recruit ad-hoc employees of various Government
Departments/Offices. In the said regularization policy, it is inter-alia laid
down that the ad-hoc services of 288 (two hundred eighty eight) direct
recruit ad-hoc employees who were appointed against Group A, B, C and
D posts in 19 (nineteen) different Departments of the State Government will
be regularized on the written recommendation of the Special Departmental
Promotion Committee (DPC) subject to the following conditions:-
"(i) Clear vacant posts in the grade or equivalent must
be available for regularization;
"(ii) Persons must be serving on ad-hoc 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 ad-
hoc 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 ad-hoc employee has been
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."
[6] Pursuant to the said regularization policy of the State
Government and on the recommendation of the Special Departmental
Promotion Committee, the ad-hoc services of all the petitioners in WP(C)
No. 721 of 2020 were regularized with effect from 30/31.12.2013 against
the posts held by them and the ad-hoc service of the husband of the
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 5
petitioner in WP(C) No. 679 of 2020 was also regularized against the
vacant post of Supervisor (Credit) with effect from 30.12.2013.
[7] When the petitioners in WP(C) No. 721 of 2020 came to know
about the ad-hoc service of many other employees, similarly situated with
them, were counted as qualifying service for the purpose of availing
pensionary and other retiral benefits, they submitted separate
representations to the concerned authorities of the State Government
requesting to count the period of their ad-hoc services as qualifying service
for the purpose of availing pensionary and other retiral benefits in terms of
the government policy for linking up service rendered on ad-hoc /officiating
basis for counting as qualifying service for pension as provided in the office
memorandum dated 05.07.2003 issued by the Department of Personnel &
Administrative Reforms (Personnel Division), Government of Manipur.
When the authorities failed to consider and dispose of the representations,
the petitioners in WP(C) No. 721 of 2020 approached this Court by filing 10
(ten) separate writ petitions for redressing their grievances. The said writ
petitions were disposed of by common order dated 01.03.2017 passed in
WP(C) No. 920 of 2016 and 9 (nine) other analogous cases by directing
the authorities to consider the representations submitted by the petitioners
and to pass appropriate orders as regards the claim for counting the
period of ad-hoc services rendered by them prior to regularisation of their
appointment for the purpose of pensionary and other retiral benefits
keeping in mind the decision passed in WP(C) No. 1299 of 2005.
[8] In compliance with the aforesaid common order dated
01.03.2017 passed by this Court in WP(C) No. 920 of 2016 and other
analogous cases and after taking into consideration the past services
rendered by the petitioners on ad-hoc basis and the direction of the Hon'ble
High Court as contain in the order dated 30.01.2006 passed in WP(C) No.
1299 of 2005, the Principal Secretary to the Government of Manipur issued
an Order dated 11.07.2018 to the effect that the ad-hoc services of the
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 6
petitioners prior to their regularization shall be counted for the purpose of
pensionary benefits only.
The husband of the petitioner in WP(C) No. 679 of 2020
submitted representation to the State Government requesting for granting
similar relief as are given to the 9 (nine) petitioners in WP(C) No. 721 of
2020 to count the period of ad-hoc service rendered by him prior to his
regular appointment for availing pensionary and other retiral benefits.
When the authorities failed to consider his representation, the husband of
the petitioner in WP(C) No. 679 of 2020 approached this Court by filing
WP(C) No. 777 of 2018 with a prayer for directing the respondents to count
the period of his ad-hoc service as qualifying service for the purpose of
availing pensionary and other retiral benefits. The said writ petitions was
disposed of on 24.08.2018 by directing the authorities to examine the claim
of the said petitioner for regularization of the ad-hoc service for the purpose
of payment of pensionary and retirement benefits as has been done in
respect of 9 (nine) other officials of the Trade, Commerce and Industries
Department, Government of Manipur. As the authorities of the State
Government have failed to implement the aforesaid directions of this Court,
the petitioner in WP(C) No. 679 of 2020 approached this Court by filing the
present writ petition for redressing her grievances.
[9] In case of the 9 (nine) petitioners in WP(C) No. 721 of 2020,
after more than one year from the date of issue of the order dated
11.07.2018 wherein it has been indicated that the ad-hoc services of the
petitioners prior to their regularization shall be counted for the purpose of
pensionary benefits, the Under Secretary (Textiles, Commerce and
Industries), Government of Manipur, wrote a letter to the Director (Trade,
Commerce and Industries), Manipur, stating inter-alia that the earlier
Government order dated 11.07.2018 was wrongly issued and accordingly,
request was made to take immediate necessary action for rectifying the
said mistake. On the same day of the said letter, i.e., on 30.11.2019, the
Under Secretary (Textiles, Commerce and Industries) Government of
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 7
Manipur issued a show cause notice to the petitioners stating inter-alia that
the Government is considering to cancel the earlier Government order
dated 11.07.2018 wherein the said 9 (nine) petitioners were allowed to
count their ad-hoc services prior to their regularization for pensionary
benefits only and also informing them to submit their
representations/objections to the above course of action to be initiated by
the Government.
[10] In response to the said show cause notice, the petitioners
submitted their show cause reply separately, explaining in detail the facts
and circumstances of their service conditions and their entitlement to count
the period of their ad-hoc services as qualifying service for availing
pensionary benefits.
It is the case of the petitioners that without at all considering
their show cause reply and their entitlement to get similar benefits as are
given to other similarly situated persons, the State Government issued the
impugned order dated 23.10.2020 thereby rejecting their earlier
applications for counting their ad-hoc services for the purpose of availing
pensionary benefits only and to cancel the earlier Government order dated
11.07.2018 which allowed to count the period of ad-hoc services of the
petitioners as qualifying service for the purpose of availing pensionary
benefits. Having been aggrieved, the petitioners approached this Court by
filing the present writ petition for redressing their grievances.
[11] The learned counsel for the petitioners submitted that in
similar cases like the present writ petitions, the Honb'le Guwahati High
Court had passed the judgment and order dated 30.01.2006 in WP(C) No.
1299 of 2005 and judgment and order dated 04.12.1998 in CR no. 1221 of
1998 directing the State Government for counting the period of the ad-hoc
services rendered by the petitioners for the purpose of availing pensionary
benefits. It has been submitted that the said judgments and orders have
been upheld by the Appellate Court in its judgment and order dated
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 8
09.08.2010 passed in W.A. No. 89 of 2009 and judgment and order dated
20.10.2011 passed in W.A. No. 3 of 2011 respectively and that the said
judgment and order of the Appellate Court were not interfered by the
Hon'ble Apex Court and thus the issue has attained finality. The learned
counsel also submitted that the directions given by the Honb'le High Court
in the aforesaid judgments and orders have also been complied with by the
State Government thereby allowing to count the period of ad-hoc services
rendered by the petitioners prior to their regularization as qualifying service
for the purpose of availing pensionary benefits only and that the present
writ petitions are squarely covered by the aforesaid judgments and orders.
The learned counsel for the petitioners submitted that all the
petitioners are similarly situated with those petitioners in WP(C) No. 1299
of 2005, C.R. No. 1221 of 1998 and other employees of the State
Government in whose favour the State Government have passed various
orders allowing to count the period of their ad-hoc services prior to their
regularization as qualifying service for availing pensionary and other retiral
benefits and that the present petitioners are also entitled to get similar
benefits as are given to those persons.
[12] The learned counsel for the petitioners also submitted that on
the directions given by this Court in its common judgment and order dated
01.03.2017 passed in WP(C) No. 920 of 2016 and 9 (nine) other analogous
cases, the State Government had already considered the cases of the
petitioners and thereafter passed an order dated 11.07.2018 thereby
allowing to count the period of their ad-hoc services rendered by the
petitioners prior to their regularization as qualifying service for the purpose
of pensionary benefits only. However, after more than a year from the date
of issue of the above aforesaid order, the State Government issued the
show cause notice dated 30.11.2019 and thereafter, issued the impugned
order dated 23.10.2020 rejecting the claims of the petitioners and also
cancelling the earlier order dated 11.07.2018 without assigning any reason
and in a most arbitrary and creptitious manner. It has been vehemently
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 9
submitted by the learned counsel for the petitioners that the petitioners
have been treated discriminatorily with other persons similarly situated with
them and that such acts of the State Government amounts to blowing hot
and cold by the same breath and such arbitrary action of the State
Government is illegal and not sustainable in the eyes of the law and
accordingly, the same is liable to be quashed and set aside. In support of
their contentions, the learned counsel appearing for the petitioners relied
on the following judgments:-
(i) East Coast Railray and Anr. -vs- Mahadev Appa Rao
and Ors. reported in (2010) 7 SCC 678 wherein it has
been held as under:
"23. Arbitrariness in the making of an order by an
authority can manifest itself in different forms.
Non-application of mind by the authority making
the order is only one of them. Every order
passed by a public authority must disclose due
and proper application of mind by the person
making the order. This may be evident from the
order itself or the record contemporaneously
maintained. Application of mind is best
demonstrated by disclosure of mind by the
authority making the order. And disclosure is
best done by recording the reasons that led the
authority to pass the order in question. Absence
of reasons either in the order passed by the
authority or in the record contemporaneously
maintained is clearly suggestive of the order
being arbitrary hence legally unsustainable."
(ii) Balbir Singh -vs- State of H.P. and Ors. reported in
(2000) 10 SCC 166 wherein it has been held as under:-
"4. It is surprising to note that prior to the
disposal of the writ petition filed by Shri Walia,
the appellant herein was reverted vide order
dated 02.07.1988 allegedly on the ground that he
had been promoted erroneously under a
mistaken belief. The record reveals that the
respondent State had taken a conscious decision
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 10
to promote the appellant and was, therefore, not
justified in reverting him allegedly on the ground
of non-availability of reservation as per
instructions of the Government. The respondents
cannot be permitted to blow hot and cold in the
same breath inasmuch as in the petition filed by
Mr. Walia they justified the promotion of the
appellant by stating that he was deprived of his
promotion erroneously and when the question of
his promotion came, it took the same plea of
erroneously promoting him under a mistaken
belief. It is on record that till the promotion of the
appellant as Junior Engineer seven such posts
had been filed up by promotion meant for various
categories including Electrical Grade I from 10%
promotion quota. He had been promoted upon
his representation which was duly considered
and appropriate orders passed in his favour. It is
conceded before us that after his promotion the
appellant has continuously been holding the post
of Junior Engineer. The Tribunal appears to have
misdirected itself by not taking note of the
relevant facts of the case and the stand of the
Government justifying the promotion of the
appellant which was upheld by the High Court in
the writ petition filed against him."
(iii) Indra Sawhney and Ors. -vs- Union of India and ors.
reported in 1992 Supp. (3) SCC 217 wherein it has been held as under:-
"260. Equality is one of the magnificent cornerstones of
Indian democracy: Indira Nehru Gandhi v. Raj Narain:
Minerva Mills Ltd. v. Union of India; Waman Rao v.
Union of India. Articles 14, 15 and 16 embody facets of
the many-sided grandeur of equality: General Manager,
S. Rly. v. Rangachari; State of Kerala v. N.M. Thomas.
Article 14 prohibits the State from denying to any
person within the territory of India equality before the
law or the equal protection of the laws. All persons in
like circumstances must be treated equally. Equality is
between equals. it is parity of treatment under parity of
conditions. The Constitution permits valid classification
founded on an intelligible differentia distinguishing
persons or things grouped together from others left out
of the group. And such differentia must have a rational
relation to the object sought to be achieved by the law:
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 11
State of Kerala v. N.M. Thomas. See also Ram Krishna
Dalmia v. Justice S.R. Tendolkar.
"261. any State action distinguishing classes of persons
is liable to be condemned as invidious and
unconstitutional unless justified as a benign
classification rationally addressed to the legitimate aim
of qualitative and relative equality by means of
affirmative action programmes of protective measures
with a view to uplifting indentified disadvantaged
groups. All such measures must bear a reasonable
proportion between their aim and the means adopted
and must terminated on accomplishment of their object.
Any legitimate affirmative action rationally and
reasonably administered is an aid to the attainment of
equality. In the words of Judge Tanaka of the
International Court of Justice:
"....The principle is that what is equal is to be treated
equally and what is different is to be treated differently,
namely proportionately to the factual differences. This
is what was indicated by Aristotle as justitia
commutativa and justitia distributva.
....the principle of equality before the law does not
mean the absolute equality, namely equal treatment of
men without regard to individual, concrete
circumstances, but it means the relative equality,
namely the principle to treat equally what are equal and
unequally what are unequal.
....To treat unequal matters differently according to their
inequality is not only permitted but required...."
[13] The stand of the respondents is that the regularization of the 9
(nine) petitioners in WP(C) No. 721 of 2020 in their respective posts were
done only with immediate effect from the date of issue of the order dated
30/31.12.2013 in pursuance of the Department of personnel, Government
of Manipur, office memorandum dated 03.10.2019 regarding the
Government's policy for regularization of the services of direct ad-hoc
employees. In the said regularization policy, it is clearly provided that the
regularization of the services of the direct ad-hoc employees on regular
basis will be done on the written recommendation of a Special
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 12
Departmental Promotion Committee and that such regularization shall be
only with prospective effect and no retrospective effect will be allowed. In
view of such conditions stipulated under the State Government's ad-hoc
regularization policy, the ad-hoc services of the petitioners cannot be
regularised with retrospective effect and their claim for regularization of the
period of their ad-hoc services are not entertainable.
[14] Mr. A. Vashum, learned G.A. appearing for the respondents
submitted that since the ad-hoc services of the writ petitioners were
regularized under the aforesaid State Government's regularization policy
as contain in the O.M. dated 03.10.2013, the claims of the petitioners for
regularization of the period of their ad-hoc services prior to their
regularization as qualifying service for the purpose of availing pensionary
and other retiral benefits cannot be given and accordingly, the earlier
Government order dated 11.07.2018 allowing counting of the petitioners'
ad-hoc services prior to their regularization as qualifying services for the
purpose of availing pensionary benefits was a mistake committed by the
Government and that the Government can always correct such mistakes
with due process of law.
[15] It has also been submitted by the learned G.A. that on
realizing such mistakes committed earlier, the Government initiated the
process for cancellation of the earlier order dated 11.07.2018 and to
correct such mistakes by issuing the show cause notice and thereafter,
after due consideration and re-examination, the order dated 23.10.2020
was issued thereby rejecting the earlier applications submitted by the writ
petitioners and also cancelling the earlier Government order dated
11.07.2018. The learned G.A. submitted that the Government have not
committed any illegality or irregularity in issuing the impugned order dated
23.10.2020 and the present writ petitions are not maintainable and the
same are reliable to be dismissed as being devoid of merit.
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 13
[16] I have heard the rival submissions of the learned counsel
appearing for the parties at length and carefully examined the records of
the present writ petitions. I have also perused and carefully examined the
order dated 09.08.2010 passed by a Division Bench of the Hon'ble
Guwahati High Court in W.A. No. 89 of 2009 thereby upholding the
judgment and order dated 30.01.2006 passed by the learned Single Judge
in WP(C) No. 1299 of 2005 wherein a direction was given for counting the
period of ad-hoc services rendered by the petitioners therein for the
purpose of availing pensionary benefits. The said order dated 09.08.2010
passed by a Division Bench in W.A. No. 89 of 2009 had not been interfered
by the Honb'le Apex Court and also the subsequent review petitions filed
by the State Government had also been dismissed and accordingly, the
matter in issue has attained finality. I have also perused and carefully
examined the judgment and order dated 20.10.2011 passed by a Division
Bench of this Court in W.A. No. 3 of 2011. In the said judgment and order,
it has been clearly held at para (11) that the said writ appeal was squarely
covered by the earlier decision of the Court dated 09.08.2010 passed in
W.A. No. 89 of 2009. It has also been averred on behalf of the petitioners
that the directions given in the said judgments and orders had already been
implemented by the State Government by allowing counting of the period of
ad-hoc services of those writ petitioners prior to the regularization of their
ad-hoc services as qualifying service for availing pensionary benefits only.
[17] The ad-hoc services of the writ petitioners in WP(C) No. 1299
of 2005 and C.R. No. 1221 of 1998, who are the respondents in W.A. No.
89 of 2009 and W.A. No. 03 of 2011 respectively, were regularized only
with prospective effect in terms of the State Government's policy for
regularization of ad-hoc services as provided in O.M. dated 31.05.1986.
Even though there was no provisions for giving retrospective regularization
in the said O.M. dated 31.05.1986, the Honb'le Guwahati High Court after
considering the facts and circumstances of the cases and similar objections
raised by the respondents as in the present cases and also after
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 14
considering the O.M. dated 05.07.2003 issued by the Government
providing linking up of service rendered on ad-hoc/officiating basis for
counting as qualifying service for pension, allowed the claim of the said writ
petitioners under the aforesaid judgments and orders. In the order dated
09.08.2010 passed in W.A. No. 89 of 2009, the learned Division Bench
clearly held that the State Government was under misconception that by
issuing directions for counting the past services for pensionary benefits,
there is direction for retrospective regularization. It has also been clearly
pointed out that regularization of service is one thing and counting of past
services only for the purpose of pensionary benefits is altogether a different
thing.
[18] On examination of the record, it has also been found that by
an order dated 23.06.1999 issued by the Under Secretary (Forest and
Environment), Government of Manipur, 3 (three) persons, viz., Th. Bhogen
singh, O. Irabanta Singh and Neeta Arambam were appointed as Junior
Scientific Officer on ad-hoc basis for a period of 3 (three) months in the
Environment and Ecology Wing. Subsequently, in pursuance of Cabinet
decision taken on 03.11.2010 and on the recommendation of a Screening
Committee, the said 3 (three) persons were appointed on regular basis in
the Environment and Ecology Department of Forest and Environment,
Government of Manipur, with effect from the date of issue of the order
dated 05.01.2011. Thereafter, by an order dated 19.11.2019 issued by the
Addl. Chief Secretary (Forest and Environment), Government of Manipur,
the period of ad-hoc services rendered by Shri Th. Bogen singh prior to his
regular appointment was allowed to be counted as qualifying service for the
purpose of pensionary benefits.
[19] The whole objection or justification given by the respondents
in denying the benefit of counting the petitioners' past ad-hoc services as
qualifying service for availing pension and other retiral benefits is based on
the following grounds:-
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 15
(a) Under the O.M. dated 03.10.2013 providing Government's
policy for regularization of ad-hoc services, it is clearly provided in para
(1)(v) of the said O.M. that regularization shall be with prospective effect
and no retrospective effect will be allowed. Since the ad-hoc services of the
petitioners have been regularized under the said O.M. dated 03.10.2013
only with prospective effect from 30/31.12.2013, they are not entitled to
claim retrospective regularization of their ad-hoc services;
(b) Under the O.M. dated 05.07.2003 providing for linking up
of service rendered on ad-hoc/officiating basis for counting as qualifying
service for pension, it is clearly provided in para (1)(ii) as under:-
"1.(ii) In case where the Court directions are in respect ad-hoc
services rendered before their regular appointment, their cases may
also be considered by the concerned Administrative Department
after ascertaining how they become a regular appointee. This is
important because in case their ad-hoc services were regularized in
pursuance of various directions for regularization of ad-hoc
employees issued by the Government, for instance, O.Ms. Nos.
3.2.85-DP(I) dated 31.05.1986, 12.13.92-AQ/DP(Pt.) dated
08.10.1992 and 14.01.94-Adhoc/DP dated 29.08.1994, then Dates
prior to the date of issue of applicable O.Ms retrospective
regularization was not allowed by these O.Ms and it should be the
responsibility of the concerned HoD/Administrative Department to
get the orders of the Court vacated by filing appeal petitions in such
case immediately. However, in case of employees who become a
regular appointee by way of direct recruitment duly recommended by
a competent DPC, then their past ad-hoc if there is no break may be
regularized for counting pensionary benefits only."
It is the case of the respondents that since the ad-hoc
services of the petitioners have been regularized under the O.M. dated
03.10.2013 wherein no retrospective effect was allowed and since under
the O.M. dated 05.07.2003 specifically did not allow counting of past ad-
hoc services of employees whose services have been regularized under
the various Government's O.Ms. wherein no retrospective regularization
was allowed, the ad-hoc services of the present writ petitioners prior to
their regularization cannot be allowed to be counted for availing pensionary
benefits.
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 16
[20] The ad-hoc services of the writ petitioners in WP(C) No. 1299
of 2005 and C.R. No. 1221 of 1998 have been regularized under the O.M.
dated 31.05.1986 wherein no retrospective regularization was provided and
after considering similar objections raised by the respondents as in the
present case as well as after considering the O.M. dated 05.07.2003, the
Hon'ble Guwahati High Court has allowed the claims of those petitioners by
directing the State Government to count the period of ad-hoc services of
those petitioners prior to the regularization of their services as qualifying
services for availing pensionary benefit only and that the State
Government had already implemented the directions of the Hon'ble High
Court. Thus, the issue has attained finality. In my considered view, the
decisions rendered by the learned Division Bench of the Guwahati High
Court in its order dated 09.08.2010 passed in W.A. No. 89 of 2009 and
judgment and order dated 20.10.2011 passed in W.A. No. 03. of 2011
squarely covers the issue raised in the present writ petitions and the
present writ petitioners are entitled to get the same benefits.
[21] This Court cannot ignore the fact that the Sate Government
had already given similar benefits to other employees of the State
Government who are similarly situated with the present writ petitioners and
there is no reason for not granting similar benefits to the present writ
petitioners and denial of granting such benefits to the petitioner will violate
the equality clause enshrined under Article 14 and 16 of the Constitution of
India.
[22] This Court is also not impressed with the faint submission
made by the learned G.A. that if the present writ petitions are allowed,
there is possibility of a flood gate of litigation. In this connection, we can
gainfully relied on the judgment of the Apex Court in the case of "Coal
India Ltd. and Ors. -vs- Saroj Kumar Mishra" reported in (2007) 9 SCC
625 wherein it has been held at para. 19 that "The flood gate argument
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 17
also does not appeal to us. The same appears to be an argument of
desperation. Only because there is a possibility of flood gate litigation, a
valuable right of a citizen cannot be permitted to be taken away. This Court
is bound to determine the respective rights of the parties. [See Zee
Telefilms Ltd. v. Union of India and Guruvayoor Devaswom Managing
Committee v. C.K. rajan]."
[23] In the facts and circumstances of the present case and for the
foregoing reasons given hereinabove, the present writ petitions are allowed
by quashing and setting aside the impugned order dated 23.10.2020 and
by directing the respondents to give to the petitioners the benefit of
counting the period of their ad-hoc services prior to regularization of their
ad-hoc services as qualifying service for availing pension and other retiral
benefits only.
With the aforesaid directions, the present writ petitions are
disposed of. Parties are to bear their own cost.
JUDGE
FR/NFR
joshua
Digitally signed by
KH. JOSHUA KH. JOSHUA MARING
MARING Date: 2022.10.11
14:23:56 +05'30'
WP(C) No. 721 of 2020 with WP(C) No. 679 of 2020 Page 18
