Bishnupur vs The State Of Manipur
2023 Latest Caselaw 78 Mani

      LAIRENMAYUM Digitally signed by
                  LAIRENMAYUM
1     INDRAJEET   INDRAJEET SINGH
                  Date: 2023.02.24 16:13:31
      SINGH       +05'30'




                                  IN THE HIGH COURT OF MANIPUR
                                            AT IMPHAL

                                              WP(C)No.694 of 2020

    Sanasam Bindashakhi Devi, aged about 52 years, W/O Salam Nehru Singh,

    resident of Moirang Ward No.10 Khoiru Leikai, PO & PS Moirang and District

    Bishnupur, Manipur-795133.


                                                                            ...Petitioner
                                                 - Versus -


    1. The State of Manipur, through the Principal Secretary/Commissioner,

        Secretary, Education(S), Govt. of Manipur, Secretariat Building,

        Babupara, PO & PS Imphal, District Imphal West, Manipur Pin-795001.

    2. The Director of Education(S), Govt. of Manipur, Office of the Directorate

        of Education (S), Lamphelpat, PO & PS Lamphel, Imphal West District,

        Manipur. Pin-795004.

    3. The Department of Personnel and Administrative Reforms through its

        Principal Secretary/Commissioner/Secretary (DP) Govt. of Manipur,

        Secretariat Building, Babupara, PO & PS Imphal, District Imphal West,

        Manipur. Pin-795001.


                                                                         ...Respondents

BEFORE

HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Petitioner : Mr Anjan Prasad Sahu, Advocate,

For the Respondents : Ch. Sundari, GA

Date of Reserved : 31.01.2023

Date of Judgment & Order : 21.02.2023.

JUDGMENT & ORDER (CAV)

1. The instant writ petition has been filed by the petitioner seeking the

following relief:

(i) Call for the records of the case and issue rule nisi calling upon the respondents to show cause as to why the prayer prayed for by the petitioner hall not be granted. And, after hearing them make the rule absolute.

(ii) Issue writ of Certiorari and/or any other appropriate writ/order/direction to the respondents directing them to review the order dated 11.10.2018 (Annexure-A/8) in respect of the petitioner.

(iii) Issue writ of Mandamus and/or any other appropriate writ/order/direction to the respondents directing them to regularize/absorb the petitioner in her ad-hoc service by linking up her service period with retrospective effect within a stipulated period as have been done in respect of other ad- hoc employees of other departments and also to direct them to release the pay and allowances of the petitioners w.e.f. 01.03.2007 till her service is regularized.

2. The case of the petitioner is that she was appointed as adhoc Primary

Teacher (substitute) in WangooNaodakhong Girls L.P. School against one of

the posts created vide Government Order dated 30.5.1987 for a period until

further orders vide order dated 15.12.1989. Since her initial appointment, she

has been continuously serving in her respective post without any break till date.

Further, vide order dated 25.4.2004, the Director of Education (S), allowed the

petitioner to appear before the DPC for consideration of Primary Teacher and

her appointment was to be adjusted against the vacancy in the said school vice

Ibochou Singh retired, as and when the ban on direct recruitment was lifted by

the Government. Thereafter, the said school was upgraded to Wangoo Sabal

Naodakhong Upper Primary School.

3. Further case of the petitioner is that the Department of Personnel &

Administrative Reforms, Government of Manipur, vide Memorandum dated

3.10.2013 directed regularization of all adhoc employees of other Departments,

excluding the Education Department. However, the Education Department

failed to formulate such policy for regularization of the services of the petitioner

along with other persons till date. Being aggrieved, the petitioner and other

adhoc teachers have filed W.P.(C) No.461 of 2015 before this Court to

regularize their adhoc appointments in the Department of Education. By the

order dated 14.12.2015, the said writ petition was disposed of directing the

petitioner and others to submit a representation to the Deputy Secretary

(Education/S), Government of Manipur within a week and with further direction

to the consider the same by the said authority within a period of two months.

4. According to the petitioner, pursuant to the order of this Court, the

petitioner along with others submitted a representation and since the

respondents have not consider the same, the petitioner and others have filed

Contempt Case No.60 of 2016. Pending contempt case, the respondents

produced by the impugned order dated 11.10.2018 issued by the

Commissioner, Education (S), Government of Manipur stating that the

petitioners therein are unfit for regularization to the post in which they were

working as adhoc/substitute teachers. Challenging the order dated 11.10.2018,

the petitioner has filed the present petition.

5. Respondents 1 and 2 filed affidavit-in-opposition stating that no such

posts against which the petitioner along with others were appointed were

allotted to the schools where they were posted and as such their appointments

were considered irregular and also to have been appointed against no posts

and, therefore, appointment order of the petitioner along with others were

cancelled vide order dated 26.3.1999. It is stated that in exercise of the powers

conferred by Section 23(1) of the Right of Children to Free and Compulsory

Education Act, 2009 and in pursuance of the notification dated 31.3.2010

issued by the Department of School Education and Literacy, Ministry of Human

Resource Development, Government of India, the National Council of Teacher

Education has laid down minimum qualifications for a person to be eligible for

appointment as a teacher in Class I to VIII in a school referred to in Clause (n)

of Section 2 of the Act with effect from the date of its notification dated

23.8.2010.

6. It is stated that the Director of Education (S) without obtaining approval

of the Government issued an order dated 24.5.2004 to the effect that the

petitioner shall be allowed to appear before a DPC for consideration of her

appointment as Primary Teacher and her appointment is adjusted vice Ibochou

Singh and the order dated 25.4.2004 has been rendered as void ab-initio vide

Government Order dated 8.10.2008 and the said fact has been concealed by

the petitioner in the writ petition. The petitioner and 170 others have filed

W.P.(C) No.461 of 2015 praying inter alia for a direction to the respondents to

make necessary process for regularizing the adhoc services of the petitioner

therein. The present petitioner is petitioner No.29 in the said writ petition. The

petitioner concealed the filing of W.P.(C) No.105 of 2012 wherein she has

challenged the order dated 8.10.2008. Therefore, there is no question for

reviewing the impugned order dated 11.10.2018.

7. Assailing the impugned order, the learned counsel for the petitioner

submitted that the petitioner has been serving in her respective post till date

without any break since her initial appointment by discharging her duties as

Primary Teacher by attending the school punctually. No order for discontinuing

the adhoc service of the petitioner was issued till date. He would submit that

the petitioner was initially appointed to the post of Primary Teacher of the

Department of Education (S) in the year 1989 and she has completed 31 years

of continuous service as Primary Teacher.

8. The learned counsel for the petitioner further submitted that the only

hope of the petitioner in her life is to get regularized/absorbed as Primary

Teacher, which she has been holding since more than three decades back by

linking up her adhoc service with retrospective effect. Though she has been

continuously serving in her respective post, she has been serving without pay

and allowances with effect from 1.3.2007 till date.

9. The learned counsel for the petitioner urged that the act of the

respondents in not regularizing the services of the petitioner as Primary

Teacher despite the fulfillment of all the requisite qualifications and by

formulating/publishing a scheme/policy as have been done in respect of other

adhoc employees of other Department has caused great injustice to her. Thus,

a prayer has been made to allow the writ petition.

10. Per contra, the learned Government Advocate for the respondents

submitted that no post against which the petitioner was appointed was allotted

to the school where the petitioner was posted and, as such, the appointment of

the petitioner is irregular one and also to have been appointed against no post

and moreover her appointment order was cancelled vide order dated

26.3.1999.

11. The learned Government Advocate further submitted that the

Director of Education (S) without obtaining approval of the Government issued

the order dated 25.4.2004 thereby allowing the petitioner to appear before the

DPC for consideration of her appointment as Primary Teacher and her

appointment is adjusted vice Ibochou Singh retired as and when the ban on

direct recruitment is lifted by the Government. In fact, the order dated

25.4.2004 has been rendered void ab-initio vide Government Order dated

8.10.2008 and challenging the order dated 8.10.2008, the petitioner has filed

W.P.(C) No.105 of 2012 and the said facts have been concealed by the

petitioner in the instant petition. Therefore, there is no question for reviewing

the Government Order dated 11.10.2018. Thus, a prayer has been made to

dismiss the writ petition.

12. This Court considered the rival submissions and also perused the

materials available on record.

13. According to the petitioner, she is serving as Primary Teacher in the

Department of Education (S), Government of Manipur for the last more than 31

years. The grievance of the petitioner is that the State Government used to

frame scheme from time to time for regularization of the adhoc services of the

employees of various Government Departments. However, the Department of

Education (S), Government of Manipur has failed to formulate any such policy

for regularization of the services of the petitioner and similarly situated persons

till date. According to the petitioner, the order dated 11.10.2018 has been

passed in order to escape from the contempt proceedings initiated against the

official respondents. Without analyzing the ground reality, the order dated

11.10.2018 came to be passed by the Commissioner rejecting the claim of the

petitioner and similarly situated persons on the ground of lack of fulfillment of

requisite qualification and their initial appointment being made in violation of the

rules for public recruitment.

14. It appears that earlier the petitioner and similarly situated persons

have filed W.P.(C) No.461 of 2015 before this Court for regularization of their

services. By the order dated 14.12.2015, this Court passed the following order:

"Heard Shri N.Kumarjit, learned senior counsel assisted by Shri P.Ta.phamani, learned counsel appearing for the petitioners and Shri K.Jagat, learned G.A appearing for the State respondents.

According to the petitioners, they are serving as Primary/Graduate teachers in the Department of Education (S), Government of Manipur for the last more than 15 (fifteen) years. The case of the petitioners is that the State Government used to frame scheme from time to time for regularization of the ad-hoc services of the employees. The last scheme appears to be the one vide Office Memorandum dated 03.10.2013 issued for the purpose for regularization of 288 direct recruit ad hoc employees of various Government Departments/Offices. Under the said scheme, the cases of petitioners have not been considered, may be, on some cogent reasons. It is the further case of the petitioners that for the purpose of considering their cases by the State Government, the Deputy Secretary (DP), Government of Manipur addressed a letter dated 21.04.2014 to the Deputy Secretary (Education/S) for taking appropriate and necessary action.

In view of the above, this Court is of the view that the State respondents shall consider the cases of the petitioners, for which the petitioners are directed to submit a representation to the Deputy Secretary (Education/S), Government of Manipur within a period of one week and in the event of such a representation being submitted by the petitioners, the respondents shall consider it within a period of two months from the

date of communication of this order and issue appropriate order in respect thereof.

With the above observation and direction, this writ petition stands disposed of."

15. The respondent State contended that the petitioner's appointment

was irregular one as she was appointed against no post and, in fact, her

appointment was cancelled vide order dated 26.3.1999.

16. On a perusal of the records, it is seen that the petitioner was

appointed as substitute teacher at WangoNaodakhong Girls L.P. School in the

scale of Rs.1250-1975 pm. with D.A. and other allowances as admissible under

the rules with effect from the date of her joining duty in the school against one

of the posts created vide Government Order dated 30.5.1987 until further

orders or till the post is filled in on regular basis whichever is earlier. On a

further perusal of the order dated 15.12.1989, it is seen that the head for

drawing salary has also been mentioned therein. When the appointment of the

petitioner as substitute teacher is against the post created by the order dated

30.5.1987 until further orders or till the post is filled in on regular basis as per

the appointment order, it cannot be contended that her appointment is against

no such post sanction.

17. Though the respondent State contended that the appointment of the

petitioner was cancelled vide order dated 26.3.1999, the petitioner has been

allowed to work as such. It is not the case of the respondent State that between

the period 15.12.1989 and 26.3.1999, appointment on regular basis has been

made disturbing the petitioner. For the sake, if we take into account that the

appointment of the petitioner has been cancelled on 26.3.1999, having

extracted the work for nearly 10 years, she cannot be thrown out simply, as her

appointment is not illegal. That apart, on 12.4.2018, the Zonal Education

Officer, Zone IV(B), Government of Manipur has submitted the details of adhoc

teachers who are working in the schools under Bishnupur District to the Director

of Education (S), Government of Manipur, wherein the name of the petitioner

has been found place at Serial No.1. Thus, it is clear that as on 12.4.2018 also,

the petitioner has been serving as adhoc teacher at Wangoo Naodakhong Girls

LP School, upgraded to Wangoo Sabal Naodakhong UP School. On

27.7.2019, 28.9.2020, the Head Mistress of Wangoo Sabal Naodakhong Upper

Primary School has given duty certificates, wherein it has been categorically

certified as under:

"This is to certify that Smt. S.Bindashakhi Devi, Primary Teacher (Substitute) WangooSabalNaodakhong Upper Primary School, had been attending to school regularly since her initial appointment till date without any break."

18. When the certificates of the Headmistress of the concerned school

are to the effect that the petitioner is attending the school regularly right from

her initial appointment, in the interest of justice, her case has to be considered

by the respondent State and her appointment is not illegal.

19. It is pertinent to mention that the Director of Education (S),

Government of Manipur, in his order dated 25.4.2004, allowed the petitioner to

appear before a DPC for consideration of regularization of Primary Teacher and

that her appointment shall be adjusted against the vacancy in the Wangoo

Naodakhong Girls LP School vice Ibochou Singh retired as and when the ban

on direct recruitment is lifted by the Government. The petitioner also issued

with NIC Identity Card. While being so, her initial and/or adhoc appointment

cannot be termed as illegal one.

20. The Hon'ble Supreme Court, time and again, 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.

21. As could be seen from various orders produced by both sides, it is

evident that the petitioner's appointment is neither illegal nor irregular. The

Hon'ble Supreme Court also held that a duty cast 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. As stated supra, the petitioner's initial appointment as

adhoc teacher or substitute teacher, as the case may be, is only after following

the due process of law and her initial appointment is not back door entry.

22. The petitioner has established that she has been serving in her

respective post till date without any break since her initial appointment by

discharging her duties by attending the school. No order for discontinuing the

adhoc service of the petitioner has been issued by the respondents till date.

The petitioner has been serving in the school in question for 31 years

continuously under the fond hope that one day her services would be

regularized. However, for the past 31 years, the petitioner has not seen the

light of the day.

23. The petitioner contended that she has been serving in her post

without pay and allowances with effect from 1.3.2007 till date. However,

nothing has been produced to establish the non-payment salary and

allowances to the petitioner. Anyhow, it is for the respondent State to look the

said issue and pay the entitled salary for the period in which she has not been

paid salary.

24. The Commissioner, Education (S), Government of Manipur cannot

simply say that the petitioner is unfit for regularization to the post in which she

is still working as adhoc/substitute teacher, as it is not the case of the

respondent State that the petitioner is not qualified to hold the said post.

Nothing has been produced by the respondent to show that there is lack of

fulfillment of requisite qualification as per the applicable rules and the initial

appointment of the petitioner is in violation of the rules for public recruitment.

In the absence of any such contra evidence, it is to be concluded that the

petitioner has made out her case.

25. For all the reasons stated above, the writ petition is allowed. The first

respondent is directed to review its order dated 11.10.2018 in respect of the

petitioner and to regularize the petitioner in her adhoc service by linking up her

service period with retrospective effect as has been done in respect of other

adhoc employees of other Departments. The respondents are also directed to

pay the entitled pay and allowances to the petitioner for the unpaid period. The

aforesaid exercise is directed to be completed within a period of eight weeks

from the date of receipt of a copy of this order. No costs.

ACTING CHIEF JUSTICE

FR/NFR

John Kom