Manipur High Court

Smt. Khangembam Meiteileima ... vs The State Of Manipur Represented ... on 21 February, 2023

SHAMURAILATPAM                Digitally signed by
                              SHAMURAILATPAM SUSHIL SHARMA
SUSHIL SHARMA                 Date: 2023.02.24 11:43:50 +05'30'
                                                                Page |1


                   IN THE HIGH COURT OF MANIPUR
                             AT IMPHAL

                           WP(C) No. 171 of 2020

               Smt. Khangembam Meiteileima Chanu, aged about
               49 years W/o Laishram Nilakumar Singh of Sega
               Road Khwairakpam Leikai, Imphal West, Manipur.
                                                         ....Petitioner

                                -Versus-

          1. The State of Manipur represented by the the Addl.
               Chief Secretary/Principal Secretary /Commissioner/
               Secretary (DP), government of Manipur, Old
               Secretariat Building, P.O. & P.S. Imphal, Imphal
               West, Manipur- 795001;

          2. The Principal Secretary/ Commissioner/ Secretary
               (Fisheries), Government of Manipur, Old Secretariat
               Building, P.O. & P.S.          Imphal, Imphal West,
               Manipur- 795001 and;

          3.    The Director of Fisheries, Manipur, Lamphel, P.O.
               & P.S. Lamphel, Imphal West, Manipur 795001.

                                                 ... Respondents

BEFORE HON'BLE THE ACTING CHIEF JUSTICE MR. M.V. MURALIDARAN

For the Petitioner :: Mr. Ng. Jotindra, Advocate

For the Respondents :: Mrs. L. Monomala, GA

Date of Hearing and reserving Judgment & Order :: 30.01.2023

Date of Judgment & Order :: 21.02.2023

WP(C) No.171 of 2020 Page |2

JUDGMENT AND ORDER (CAV)

This writ petition has been filed by the petitioner for

issuance of a writ of mandamus directing the respondents to

consider the case of the petitioner for absorption/accommodation

on regular basis against the newly created supernumerary post

of Fisheries Extension Assistant in the Directorate of Fisheries,

Manipur as was done in the case of similarly situated persons.

2. Heard Mr. Ng. Jotindra, learned counsel for the

petitioner and Mrs. L. Monomala, the learned Government

Advocate for the respondents.

3. Mr. Ng. Jotindra, the learned counsel for the

petitioner submitted that the petitioner was initially appointed as

adhoc Research Assistant in the Department of Fisheries for a

period of three years vide order dated 7.1.1999 and thereafter

the services of the petitioner was extended from time to time by

various orders and she has been still continuing in her service.

He would submit that earlier the petitioner initiated several writ

proceedings and obtained favourable orders. However, her case

has not been considered by the respondent authorities till date.

4. The learned counsel further submitted that despite

the petitioner fulfills all the essential as well as desirable

WP(C) No.171 of 2020 Page |3

qualification prescribed in the relevant Recruitment Rules for

regular appointment as Fishery Extension Assistant in the

Department of Fishery, she has been singled out and on the

other hand, the similarly situated persons were appointed on

regular basis. In fact, the Deputy Secretary (Fishery) submitted

a letter dated 6.9.2019 to the Director of Fisheries, based on the

Cabinet decision dated 21.8.2019, for creation of 78 nos. of

Grade-III and IV supernumerary posts in order to accommodate

adhoc/officiating/contract appointees in the Directorate of

Fisheries, wherein the name of the petitioner found place at

Serial No.65 against the created post of Fishery Extension

Assistant. However, by the order dated 13.12.2019, while

absorbing/ accommodating 73 employees, excluded the post of

the petitioner. The aforesaid act of the respondent authorities

clearly prove their unequal treatment amongst the equal.

Therefore, a direction may be issued to the respondent

authorities to absorb/accommodate the petitioner on regular

basis against the newly created supernumerary post of Fisheries

Extension Assistant in the Directorate of Fisheries, Manipur.

5. Mrs. L. Monomala, the learned Government

Advocate for the respondents submitted that pursuant to the

order dated 14.11.2000passed in W.P.(C) No.1480 of 2000,

WP(C) No.171 of 2020 Page |4

recruitment for one post of Fishery Inspector was held in the year

2007 and the Director of Fisheries vide letter dated 21.8.2007

requested the Employment Exchange Officer for sponsoring the

name of the petitioner along with four others who were serving in

the Department on adhoc basis. At that time since there was no

vacancy for the post of Research Assistant, the petitioner was

requested to appear for the post of Fishery Inspector, however,

she failed to appear in the written test. After completion of the

recruitment for the post of Fishery Inspector, the Department

issued an order dated 24.12.2007, thereby ordering that since

there was no vacant post of Fishery Inspector to be filled up by

direct recruitment, the services of all the direct adhoc Fishery

Inspectors was discontinued with effect from 15.12.2007. The

said order has never been challenged by the petitioner allowing

the same to attain finality.

6. The learned Government Advocate further

submitted that in compliance of the order of this Court when the

respondent authorities afforded an opportunity to the petitioner

for recruitment to the post of Fishery Inspector, the petitioner has

failed to appear and therefore, the respondents cannot be

blamed. Since the adhoc service of the petitioner was

discontinued with effect from 15.12.2007, the petitioner is not

WP(C) No.171 of 2020 Page |5

similarly situated to that of Babita Devi, Thoudam Suchila Devi,

Moirangthem Noren Singh and Khoirom Suresh Singh stated in

her affidavit filed in support of the writ petition.

7. The learned Government Advocate further

submitted that even in the letter dated 21.10.2019 addressed to

the Additional Chief Secretary (Fishery) by the Deputy Secretary

(Fishery), it has been stated that the service of the petitioner had

been discontinued with effect from 15.12.2007 and that the

service of the petitioner has not been utilized in the Fishery

Department. The said letter has not been challenged by the

petitioner.

8. The learned Government Advocate next submitted

that the name of the petitioner was not included in the list of

employees who were to be regularized against the newly created

supernumerary posts since the service of the petitioner was

already discontinued with effect from 15.12.2007. In fact, in the

Agenda No.10 of the Cabinet decision taken on 21.8.2019, it has

been mentioned that the proposal was for creation of

supernumerary posts in order to accommodate the former adhoc

appointees in the Directorate of Fisheries whose pay and

allowances have already been protected with the concurrence of

Finance Department with effect from 1.12.2021 till the date of

WP(C) No.171 of 2020 Page |6

their superannuation, retirement etc. The petitioner was not

among those adhoc/officiating/contract employees whose pay

and allowances have been protected. As such the allegation of

the petitioner that the State respondents have singled out her

case is without any legal basis.

9. The learned Government Pleader then submitted

that the petitioner cannot be equally treated with those

employees whose pay and allowances have been protected. As

such the question of discrimination and unreasonableness does

not arise in the instant case. Thus, a prayer has been made to

dismiss the writ petition.

10. This Court considered the rival submissions and

also perused the materials available on record.

11. According to the petitioner, she was appointed on

7.1.1999 as Research Assistant on adhoc basis in the

Department of Fishery, Government of Manipur and her services

was extended thereafter from time to time and she is still

continuing in her service. Though some similarly situated

persons who were working along with the petitioner on adhoc

basis were regularized, the petitioner has been singled out.

While accommodating adhoc/officiating/contract appointees in

WP(C) No.171 of 2020 Page |7

the Director of Fisheries though the name of the petitioner has

been included at Serial No.65 against the created post of Fishery

Extension Assistant, finally while issuing the order dated

13.12.2019, her name has been omitted against the 74 nos.

supernumerary posts created by the State Government.

12. In reply, the learned Government Advocate

contended that since the service of the petitioner was not utilized

and discontinued with effect from 15.12.2007, her name has not

been considered and, therefore, she is not similarly situated with

those employees whose services have been regularized.

13. On a perusal of the letter of the Deputy Director

addressed to the Director of Fisheries, it is seen that while

furnishing the list of employees, the name of the petitioner finds

place at Serial No.65. As submitted by learned Government

Advocate, if really, the services of the petitioner discontinued with

effect from 15.12.2007, how her name could be furnished in the

year 2019. This has not been properly explained by the

respondent authorities. That apart, the discontinuation pleaded

by the respondent is for the post of adhoc Fishery Inspector and

not the Research Assistant.

WP(C) No.171 of 2020 Page |8

14. The petitioner has approached this Court four times

in connection with her service absorption and this writ petition is

fifth one. When the last writ petition in W.P.(C) No.620 of 2016

filed by the petitioner for similar relief came up for consideration,

this Court, by the order dated 26.8.2016 while disposing of the

writ petition, held as under:

"It is submitted by the learned counsel for the petitioner that persons who were appointed on ad-hoc basis and who were similarly situated with her in the same Department have been regularized in their respective posts/services. But the petitioner's prayer for regularization of her service has been constantly ignored. Therefore, a representation dated 08.08.2016 was submitted to the Principal Secretary/ Commissioner/ Secretary (Fishery), Government of Manipur by the petitioner to appoint her on regular basis to the post of Research Assistant as was done in the case of similarly situated persons.

The facts and circumstances stated above shows that for the petitioner, it has been a long journey of a career in Government service fighting constantly and consistently for a right which she felt has accrued to her.

Therefore, it would be just and humane on the part of the respondents to dispose the

WP(C) No.171 of 2020 Page |9

representation dated 08.08.2016 (Annexure, A/20 to the writ petition) of the petitioner in a just and reasonable manner. As such, the respondents are directed to dispose the same in a just and reasonable manner within a period of 3 (three) months from the date of receipt of a copy of this order. Needless to say but the order disposing the representation should be speaking order.

With this, the writ petition is disposed."

15. Pursuant to the aforesaid order, when the petitioner

submitted representation for absorption of adhoc service as was

done in other cases, the Director of Fisheries addressed a letter

dated 16.8.2018 to the Secretary (Fishery), Government of

Manipur, wherein the Director requested the Secretary (Fishery)

to consider the case of the petitioner as done in other similar

cases of the Department and convey approval of the Government

for final decision. Thereafter, the Cabinet took a decision on

21.8.2019 for creation of 78 nos. of Grade III and IV

supernumerary posts in order to accommodate

adhoc/officiating/contract appointees in the Directorate of

Fisheries. Accordingly, the Deputy Secretary forwarded the

names of 77 persons to the Director of Fisheries on 6.9.2019,

wherein the name of the petitioner found place at Serial No.65.

WP(C) No.171 of 2020 P a g e | 10

By the decision dated 21.8.2019, the Cabinet also approved the

proposal for creation of 78 nos. of Grade III and IV

supernumerary posts in order to accommodate all the former

adhoc/officiating/contract appointees in the Directorate of

Fisheries. However, while passing order dated 13.12.2019

thereby creating 74 nos. of supernumerary posts for absorbing

73 employees with immediate effect in terms of the State

Cabinet's decision dated 21.8.2019, the post of the petitioner has

been omitted. The reason for omitting the post of the petitioner

in the said list has not been properly explained by the

respondents. Thereafter, by addendum dated 18.12.2019, para

3 has been added in the order dated 13.12.2019 by stating

"Consequently, services of the above employees (both Grade III

and IV contract appointees/former officiating appointees) have

been regularized w.e.f. 13.12.2019 itself against the aforesaid 74

nos. of supernumerary posts created by the State Government".

16. No convincing reasons forthcoming from the side of

the respondent why the post of Fisheries Extension Assistant

alone singled out from creation of supernumerary posts pursuant

to the Cabinet decision dated 21.8.2019. When similarly situated

persons have been considered and regularized with effect from

13.12.2019, the same principle should apply to the case of the

WP(C) No.171 of 2020 P a g e | 11

post of Fisheries Extension Assistant. Since the petitioner all

along serving in the Fisheries Department, it is the duty of the

respondent authorities to absorb/accommodate her on regular

basis by creating supernumerary post of Fisheries Extension

Assistant in the Directorate of Fisheries, in case if it has not been

earlier created.

17. It is a clear case of unequal treatment of the

petitioner who is equal person. The law is also well settled that

unequal treatment amongst the equal person would amounts to

discrimination and unreasonableness.

18. In the welfare state committed to a socialist pattern

of society, the petitioner has acquired the right to food, clothing,

housing and healthcare. Such rights are guaranteed to her under

Articles 14, 16 and 21 of the Constitution of India read with Article

39 and the respondent authorities cannot and should not deny

such rights to her.

19. This Court is of the view that the petitioner has

made out a case and also her claim for absorption is bona fide

one. Moreover, for regularization, the petitioner is fighting

consistently for long years since 2000. That apart, direction of

WP(C) No.171 of 2020 P a g e | 12

this Court dated 26.8.2016 passed in W.P.(C) No.620 of 2016

has not been complied with by the respondent authorities till date.


20.             In the result,

                (i)     The writ petition is allowed.

                (ii)    The respondent authorities are directed

to consider the case of the petitioner for

absorption/ accommodation on regular

basis against the newly created

supernumerary post of Fisheries

Extension Assistant in the Directorate of

Fisheries, Manipur as stated in the letter

correspondence dated 6.9.2019 of the

Deputy Secretary to the Government as

well as the decision of the State Cabinet

dated 21.8.2019, within a period of two

months from the date of receipt of a

copy of this order.