Manipur High Court
The State Of Manipur vs Shri Oinam Manisana Singh on 6 August, 2024
KHOIROM Digitally signed by
KHOIROM
BIPINCHAN BIPINCHANDRA SINGH IN THE HIGH COURT OF MANIPUR
Date: 2024.08.06
AT IMPHAL
DRA SINGH 13:59:46 +05'30'
W.A. No. 33 of 2023
1. The State of Manipur, represented by the
Principal Secretary (Education/S), Government of
Manipur.
2. The Director of Education (S), Government of
Manipur, Imphal.
.... Appellants
- Versus -
1. Shri Oinam Manisana Singh, aged about 54 years,
S/O (L) O. Dukanjao Singh of Chingmei Awang
Leikai, P.O. & P.S. Moirang, Bishnupur District,
Manipur.
2. Shri P.K. Mawi Guite, aged about 46 years, S/O
Vumtuan Guite of Zehang Lamka, P.O. & P.S.
Churachandpur, Churachandpur District, Manipur.
3. Shri N. Ibobi Singh, aged about 60 years, S/O (L) N.
Angaton Singh of Khuga Tampak, Zehang Lamka,
P.O. & P.S. Churachandpur, Churachandpur District,
Manipur.
4. Shri Laishram Haridas Singh, aged about 58 years,
S/O (L) L. Bokuljao Singh of Ningthoukhong Ward
No. 11, P.O. & P.S. Ningthoukhong, Bishnupur
District, Manipur.
5. Shri Thokchom Ingo Singh, aged about 59 years,
S/O (L) Th. Ibobi Singh of Ningthoukhong, P.O. &
P.S. Ningthoukhong, Bishnupur District, Manipur.
6. Khawllienkim, aged about 54 years, D/O J. Batlien of
Khawmawi Village, P.O. & P.S. Churachandpur,
Churachandpur District, Manipur.
7. Wungkathing Makang, aged about 53 years, S/O
Okngai Makang of Tongou Village, P.O. & P.S.
Somdal, Ukhrul District, Manipur.
W.A. No. 33 of 2023 Page 1
8. Mathotmi Z. Ngalung, aged about 54 years, S/O (L)
Tungshon Z. Ngalung of Tongou Village, P.O & P.S.
Somdal, Ukhrul District, Manipur.
9. S.R. Ningthar, aged about 58 years, S/O (L) S.R.
Lungshim of Nongdam Tangkhul Village, P.O.
Lamlong, P.S. Litan, Ukhrul District, Manipur.
10. Shri Ningombam Heramani Singh, aged about 59
years, S/O (L) N. Ibobi Singh of Wangkhei Ayangpali,
P.O. & P.S. Porompat, Imphal East District, Manipur.
11. Nongmaithem Sucheta Devi, aged about 29 years,
D/O (L) N. Surendra Singh of Wangkhei Yonglan
Leirak, P.O. & P.S. Porompat, Imphal East District,
Manipur.
12. Shri Lourembam Rachandra Singh, aged about 56
years, S/O (L) L. Rajamani Singh of Koirengei Bazar,
P.O. Mantripukrhi, P.S. Heingang, Imphal East
District, Manipur.
13. Shri Nirmal Dornal, aged about 41 years, S/O
Dhanbir Dornal of Kalapahar, P.O. Kalapahar, P.S.
Kangpokpi, Kangpokpi District, Manipur.
14. Shri Dev Kumar Katwal, aged about 43 years, S/O
(L) Bal Bahadur Katwal of Kalapahar, P.O. Kalapahar,
P.S. Kangpokpi, Kangpokpi District, Manipur.
15. Shri T.S. Raisong, aged about 57 years, S/O (L)
Sangba of Tumuyon Khullen, P.O. & P.S. Kangpokpi,
Kangpokpi District, Manipur.
16. Shri Phairenbam Ibungcha Singh, aged about 57
years, S/O (L) Ph. Maipak Singh of Chingei, P.O. &
P.S. Moirang, Bishnupur District, Manipur.
17. Shri Shelley P.H., aged about 40 years, S/O Hrani
P.H. of Tungjoy Village, P.O. & P.S. Tadubi, Senapati
District, Manipur.
18. Shri P.S. Hepuni, aged about 57 years, S/O (L) P.
Shehrii of Tungjoy Village, P.O. & P.S. Tadubi,
Senapati District, Manipur.
W.A. No. 33 of 2023 Page 2
19. Shri Kamo Joseph, aged about 41 years, S/O (L) Y.
Kamo of Ngari Lishang Village, P.O. Maram, P.S.
Tadubi, Senapati District, Manipur.
20. Shri S. Hruni, aged about 53 years, S/O (L) S.
Shirang of Ngari Lishang Village, P.O. Maram, P.S.
Tadubi, Senapati District, Manipur.
21. Shri Wangkheimayum Opendro Singh, aged about 56
years, S/O (L) W. Tombi Singh of Wangkhei Khunou,
P.O. & P.S. Porompat, Imphal East District, Manipur.
22. Shri Yarnao Keinam, aged about 58 years, S/O (L) K.
Ophai of Thiwa Village, P.O. Maram, P.S. Tadubi,
Senapati District, Manipur.
23. Shri Ngangbam Manidhaja Singh, aged about 53
years, S/O Ng. Chandramani Singh of Samaram, P.O.
Wangjing, P.S. Khongjom, Thoubal District, Manipur.
24. Shri K.T. Ngalangzar, aged about 60 years, S/O (L)
K. Kapong of Thiwa Village, P.O. Maram, P.S. Tadubi,
Senapati District, Manipur.
25. Shri Chiri Keinam, aged about 60 years, S/O (L) K.
Tungtor of Thiwa Village, P.O. Maram, P.S. Tadubi,
Senapati District, Manipur.
26. Shri S. Ngou, aged about 41 years, S/O (L) S. Sahrii
of Laii Village, P.O. & P.S. Tadubi, Senapati District,
Manipur.
27. Shri A. Hillaryo, aged about 60 years, S/O Ahrai of
Phaibung Village, P.O. Maram, P.S. Tadubi, Senapati
District, Manipur.
28. Shri Thokchom Bijendra Singh, aged about 52 years,
S/O (L) Th. Ingo Singh of Heirok Part-II, Mayai
Leikai, P.O. Wangjing, P.S. Heirok, Thoubal District,
Manipur.
29. Ngangkham Gomati Devi, aged about 59 years, D/O
(L) Ng. Angouba Singh of Khurai Konsam Leikai, P.O.
& P.S. Porompat, Imphal East District, Manipur,
(Deceased) represented by -
(i) Ngangkham Raghu Singh, aged about 59
years, S/o. Ng. Angouba Singh, a resident of
Khurai Konsam Leikai, Khurai, Imphal East,
Lamlong, Manipur - 795010.
W.A. No. 33 of 2023 Page 3
(ii) Ngangkham Ranjit Singh, aged about 59 years,
S/o. Ngangkham Angou, a resident of Khurai
Konsam Leikai, Khurai, Imphal East, Manipur -
795010.
(iii) Ngangkham Loken Singh, aged about 55 years,
S/o. Ngangkham Angouba, a resident of Khurai
Konsam Leikai, Khurai, Imphal East, Manipur -
795010.
(iv) Ngangkham Brajamohan Singh, aged about 47
years, S/o. Ngangkham Angou, a resident of
Khurai Konsam Leikai, Khurai, Imphal East,
Manipur - 795010.
30. Shri Dennis T. Dongzahau, aged about 44 years, S/O
T. Goukam of Bethel Veng, P.O. & P.S. Singhat,
Churachandpur District, Manipur.
31. T. Paudam, aged about 41 years, S/O (L) T.
Vungkhum of Bethel Veng, P.O. & P.S. Singhat,
Churachandpur District, Manipur.
32. L. Gouchinkhup, aged about 45 years, S/O (L) L.
Nengkhogin of Bethel Veng, P.O. & P.S. Singhat,
Churachandpur District, Manipur.
.... Respondents
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SIDDHARTH MRIDUL
HON'BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU
For the appellants : Mr. Th. Vashum, Government Advocate
For the respondents : Mr. T. Rajendra, Senior Advocate
Date of hearing : 11.06.2024
Date of Judgment &
Order : 06.08.2024
W.A. No. 33 of 2023 Page 4
JUDGMENT & ORDER
(CAV)
(Golmei Gaiphulshillu, J.)
[1] Heard Mr. Th. Vashum, learned GA appearing on behalf
of the appellants and Mr. T. Rajendra, learned senior counsel
appearing on behalf of the respondent.
[2] The instant writ appeal has been instituted against the
judgment and order dated 07.02.2022 passed by the Hon'ble Single
Judge of this High Court in W.P.(C) No. 137 of 2018 with the
following prayer:
(i) To admit the present writ appeal.
(ii) To set aside the impugned judgment & order
dated 07.02.2022 passed W.P.(C) No. 137 of
2018.
(iii) To pass any appropriate order(s) or direction(s)
which the Hon'ble Court may deem fit, proper
and just in the facts and circumstances of the
case.
[3] Mr. Th. Vashum, learned GA appearing for the
appellants submits that the respondents/writ petitioners were
appointed as Graduate Teachers (Science & Arts) and LDCs in the
erstwhile 13 (thirteen) Government Aided High Schools in the Hill
Districts of Manipur the respective School Management Committee as
approved by the Department of Education (S), Government of
Manipur. Vide Government's order dated 22.02.2016, the aided
schools were converted into full-fledged Government High Schools.
W.A. No. 33 of 2023 Page 5
The respondents/writ petitioners were all approved staffs of the said
13 (thirteen) Government Aided High Schools. In the said order dated
22.02.2016, it was specifically mentioned that all the 52 (fifty two)
approved staffs @ 3(three) Graduate Teachers and 1 (one) LDC for
each school who were approved by the Education (S) Department will
be retained after conversion. In the order, it was also mentioned that
the services of the staffs as Government employees will commence
from the date of the conversion but, their pay and next date of
increment will be protected after the particulars of their services are
duly verified by the Director of Education (S), Government of Manipur.
The order dated 22.02.2016 reads as follows:
"Annexure-X/35
GOVERNMENT OF MANIPUR
SECRETARIAT: EDUCATION (S) DEPARTMENT
ORDERS BY THE GOVERNOR
Imphal, the 22nd February, 2016
(Order No. 47 of 2016)
No.17/3/06-SE(S): The Governor of Manipur is, pleased to
accord approval to the lake over of the 13(thirteen)
Government Aided High Schools in the Hill Districts having
classes IX & X only as Government High Schools, along with
amalgamation of these 13(thirteen) High Schools with the
respective 13(thirteen) Government Junior High Schools that
are functioning at the same campus or at the adjacent
campus under the new nomenclature as detailed in the
Annexure, with immediate effect under the terms and
conditions given below:-
1) The liabilities of the School as on the date of
conversion will not be accepted by the
Government and will have to be settled by the
School Managing Committee.
2) No claim for compensation for land or other
properties will be entertained by the Government.
The landed property of the School before
conversion should be duly registered and mutated
in the name of the School.
W.A. No. 33 of 2023 Page 6
3) All the 52(fifty-two) approved staff @ 3(three)
Graduate Teachers and 1 (one) LDC for each
school who are approved by the Education (S)
Department will be retained after conversion
4) The services of the staff as Government
employees will commence from the date of
conversion, but their pay and next date of
increment will be protected after the particulars of
their services are duly verified by the Director of
Education(S), Manipur.
5) All the properties of the School that have been
shown as assets must remain intact. These will
have to be handed over physically within 30 days
from the date of issue of the conversion orders.
6) Further, the Director of Education(S), Manipur
shall issue respective appointment orders in favour
of the Approved teachers and staff of the
respective schools.
This issues with the concurrence of Finance Department vide
their UO No. 198/2015-2016/FD(PIC) dated 07/01/2016.
Sd/-
(H. Deleep Singh)
Commissioner (Education-S)
Government of Manipur
Sl. Name of Aided Name of Govt. Jr. Name of Zone New
No. High School H/S wherein the Nomenclature
Aided Schools are after
tobe amalgamated Conversion/A
to malgamation
(1) (2) (3) (4) (5)
1. Gorkha High Kalapahar Junior ZEO-Kangpokpi Kalapahar
School High School High School
2. Hill Model High Singhat High ZEO Singhat High
School School Churachandpur School
3. Laii High School Laii Junior High ZEO Senapati Laii High
School School
4. Makui High School Makui Junior High DI Tamei Makui High
School School
5. Mapithel Area High Mapithel Area ZEO Ukhrul Mapithel Area
School Junior High School High School
6. Maram High Maram Junior High ZEO Kangpokpi Maram High
School School School
7. Ngari High School Ngari Junior High ZEO Seapati Ngari High
School School
8. North District High Tungjoy Junior ZEO Senapati Tungjoy High
School High School School
9. Patpuihmun High DR Thouma Govt. ZEO DR Thouma
School Junior High School Churachandpur Govt. High
School
W.A. No. 33 of 2023 Page 7
10. Phaibung High Phaibung Junior ZEO Senapati Phaibung High
School High School School
11. Thiwa High School Thiwa Junior High ZEO Senapati Thiwa High
School School
12. Tongou High Tongou Junior ZEO Ukhrul Tongou High
School High School School
13. ValteKhamzathang Bijangloubuk ZEO Bijangloubuk
High School Junior High School Churachandpur High School
[4] Mr. T. Rajendra, learned senior counsel appearing for
the respondents submitted that the services of the respondents/writ
petitioners, which will be counted from the date of their entering into
services as approved teachers/staffs till 22.02.2016, which has also
been approved by the competent authority, have been left out / not
counted. However, they are very much entitled to have their services
counted from the date of entering into their respective posts as
approved staffs.
[5] The learned senior counsel also submitted that a joint
representation was made on 07.03.2017 to the
appellants/respondents No. 1 and 2 for giving protection to their past
services by giving their date of appointment from their date which
was approved by the concerned authority. However, since the
representation was not considered, they filed a writ petition being
W.P.(C) No. 342 of 2017 before this High Court. Vide order dated
12.05.2017, the writ petition was disposed of with a direction to
consider the representation within a period of 2 (two) months. The
operative portion of the order passed in the said writ petition are
extracted herein below:
W.A. No. 33 of 2023 Page 8
"In view of the above submission, the present writ
petition is disposed of by directing the respondents to
consider the representation dated 07.03.2017 submitted by
the petitioners preferably within a period of 2 (two) months
from the date of receipt of a certified copy of this order. The
petitioners would be at liberty to approach this Court again,
if they are aggrieved by the order which will be passed by
the authorities after considering their representation."
[6] Further, the learned senior counsel submitted that vide
order dated 15.12.1995, similarly situated persons were given service
protection for their past services when they were converted into
Government employees in respect of Heirok Part - I, High School
(Aided).The order reads as follows:
"Annexure - X/40
SECRETARIAT : EDUCATION DEPARTMENT
(School Section)
ORDERS BY THE GOVERNOR, MANIPUR
Imphal, the 15th December, 1995
2(3)/2/94-SE(S): The Governor of Manipur is pleased to take
over the Heirok Part-1 High School (Aided) with immediate
effect under the terms and conditions given below :
(1) The liabilities of the school as on the date of
conversion will be taken by the Government.
(2) No claim for compensation for land and other
properties will be entertained by the Govt. The
landed properties of the School before
conversion should be duly registered and
mutated in the name of the School.
(3) All staffs for 4(four) approved employees
1(one) Headmaster, 1 (one) 2nd Master and
1(one) Graduate Teacher, 1(one) L.D.C. and 6
unapproved employees including 3(three)
Graduate Teacher, 1(one) P.E.T. and 2(two)
Grade-IV shall be absorbed/appointed against
the post transferred subject to eligibility for
entering into Govt. service. For absorption of
the 10(ten) (4 approved and 6 unapproved
employees) no fresh posts need be created.
This may be adjusted by transferring posts
from the available vacancies in the Education
Deptt.
W.A. No. 33 of 2023 Page 9
(4) No additional physical infrastructure, like
buildings etc. will be provided by the
Government.
(5) The services of the staff as Govt. employees
will commence from the date of entering their
services as approved employees and for
unapproved employees their services will
commence from the date of conversion, but
their pay and next date of increment will be
protected after particulars of their services are
duly checked by the concerned Zonal Education
Officer.
(6) All the properties of the School which have
been shown as assets must remain intact.
These will have to be handed over physically
within 30 days from the date of issue of the
conversion orders.
2. Further, it is ordered that Heirok Part-I Govt. High
School will amalgamate with Heirok Pt-I Govt. Jr. High
School with immediate effect.
3. This order is issued in consultation with the Finance
Deptt.
BY ORDERS & IN THE NAME OF GOVERNOR
Sd/-
(S. Kunjabihari Singh)
Secretary to the Govt. of Manipur"
In another similar case, vide order dated 29.02.2004,
link-up services were also given in respect of the erstwhile Sagang
High School. The said order reads as follows:
W.A. No. 33 of 2023 Page 10
"Annexure - X/41
GOVERNMENT OF MANIPUR
SECRETARIAT : EDUCATION DEPARTMENT
(SCHOOL SECTION)
ORDERS BY THE GOVERNOR: MANIPUR
Imphal, the 29th February, 2004.
No. 30/20/2003-SE(S): The Governor of Manipur ispleaded
accord approval of the linking up of services of the following
18 (eighteen) teachers of the erstwhile Sagang High School
(Aided) for the periods mentioned against their names for the
purpose of pensionary benefits only as per the terms and
conditions of the Manipur Civil Services (Appointment and
other service conditions of employees of Government
Aided/Private Institutions taken over by the Government)
Rules, 1981 issued vide Notification No. 1/89/80-Rules/DP
dated 25.5.1981:
Sl. Name and Period of linking up
No. designation
1. Shri N. Chaoba Singh, G/T 1-10-79 to 19-1-97
2. Shri L.V. AlinKom, G/T 1-1-84 to 19-1-97
3. Shri LeivonAsong, Kom, G/T 1-10-79 to 19-1-97
4. Shri M. Manichandra Singh, U.G.T. 1-1-75 to 19-1-97
5. Smt. Tangkipnei, Kom, U.G.T 1-10-79 to 19-1-97
6. Shri L. Shaojalal, Kom, U.G.T 1-1-82 to 19-1-97
7. Smt. Ng. Thambalngou Devi, G/T 1-10-71 to 19-1-97
8. Shri L. Joy Singh, G/T 1-8-85 to 19-1-97
9. Smt. L. Thoibi Devi, U.G.T 1-10-80 to 19-1-97
10. Shri W. Shantakumar Singh, G/T 1-1-84 to 12-1-98
11. L.V. Eli Kom, U.G.T. 1-10-79 to 12-1-97
12. Smt. ParlangsongKom, G/T 1-10-79 to 19-1-97
13. Smt. A. Memchoubi Devi, U.G.T. 10-1-73 to 19-1-97
14. Smt. K. Kamala Devi, G/T 10-1-73 to 19-1-97
15. Shri M. Shyamkeshor Singh, G/T 2-1-81 to 19-1-97
16. Shri K. Devan Singh, G/T 1-10-85 to 19-1-97
17. Shri A. Rajen Singh, G/T 1-10-87 to 19-1-97
18. Smt. W. Leima Devi, Hindi G/T 10-10-87 to 19-1-97
By Orders & in the name of the Governor
Sd/-
(P. Bharat Singh)
Commissioner, Education(S),
Government of Manipur"
W.A. No. 33 of 2023 Page 11
It is also submitted that if the State Government does
not count their past services, the respondents/writ petitioners will
suffer an irreparable loss and injury. Unless their past services are
protected, many of them will not get any retirement benefits.
Accordingly, commencement of their services shall be from the date
of their entering services as approved employees in respect of the
erstwhile 13 (thirteen) Aided High School.
[7] The learned senior counsel further submitted that the
representation aforementioned made by the respondents/writ
petitioners was rejected vide order dated 07.11.2017 issued by the
Principal Secretary (Education/S),Government of Manipur, whereby
mentioning that the effective date of appointment/absorption as
Government employees shall be with immediate effect from the date
of issuance of the administrative approval. Being aggrieved by the
said order, the respondents/writ petitioners filed a writ petition being
W.P.(C) No. 137 of 2018 for quashing the impugned order dated
07.11.2017.
However, vide order dated 07.02.2022, the Hon'ble
Single Judge of this High Court disposed of the said writ petition being
W.P.(C) No. 137of 2018 whereby quashing and setting aside the
order dated 07.11.2017 issued by the Principal Secretary
(Education/S), Government of Manipur with a direction to the
appellants/State respondents to consider the cases of the
respondents/writ petitioners for absorption in Government service
W.A. No. 33 of 2023 Page 12
w.e.f. the date on which they have been approved by the Department
of Education (S), Government of Manipur as approved teachers in
their respective Aided High School. The operative portion of the order
dated 07.11.2017is extracted herein below:
"In the result, the writ petition is allowed by quashing
and setting aside the impugned order dated 07.11.2017
issued by the Principal Secretary, Education (S), Government
of Manipur and the respondents are directed to consider the
cases of the petitioners for absorption in Government service
with effect from the date on which they have been approved
by the Department of Education (S) as approved Teachers in
their respective erstwhile aided high schools. The whole
exercise should be completed within a period of 3 (three)
months from the date of receipt of a copy of this order. With
the aforesaid directions, the present writ petition is disposed
of, however, without any costs."
[8] Challenging the order dated 07.02.2022 impugned
herein passed by the Hon'ble Single Judge of this High Court in
W.P.(C) No. 137 of 2018, the present writ appeal has been instituted
on the following grounds:
(i) The Ld. Single Judge, without properly examining
the relevant facts and law of the writ petition,
passed the impugned order dated 07-02-2022 in
W.P. (C) No. 137 of 2018.
(ii) The Ld. Single Judge, without properly examining
the counter affidavit of the appellants/respondents,
passed the impugned aforesaid order.
(iii) In the counter affidavit, the
appellants/respondents have clearly and
specifically mentioned that the conversion of the
erstwhile 13(thirteen) Aided High Schools was
done in pursuance of the Cabinet Decision/Policy
Decision of the Government. However, this
W.A. No. 33 of 2023 Page 13
aspect was not properly examined by the Ld.
Single Judge. In the catena of Hon'ble Supreme
Court decision, it is held that a Writ Court cannot
interfere with any policy decision of the
Government.
(iv) The appellants further contended in the counter
affidavit that the conversion of the erstwhile
13(thirteen) Aided High Schools into full-fledged
Government High Schools only Teachers/staffs
who were approved by the Education
Department, shall be retained and their service
shall be commenced from the date of conversion
and their pay and next date of increment will
only be protected. However, this aspect was over
looked by the Ld. Single Judge.
(v) The appellants further stated in the counter
affidavit that in pursuance of the Cabinet
Decision and also in pursuance of the Finance
Department (PIC), in conversion of 13(thirteen)
Government Aided High Schools into full-fledged
Government High Schools, the Education
Department will retain only approved
teachers/staffs and those untrained Graduate
Teachers shall undergo the B.Ed. Course as per
NCTE norms and the order shall be with
immediate effect i.e. with effect from the date of
the order of Administrative Department.
(vi) The Ld. Single Judge misinterpreted Government
Aided/Private Institution taking over by the
Government Rules 1981 in the Section 7(b),
wherein it is clearly mentioned that the service
rendered by the employees of the Government
Aided/Private Institutions on an equated post shall
be counted as experienced or service required for
W.A. No. 33 of 2023 Page 14
promotion or direct recruitment, as the case may
be. However, the Ld. Single Judge misinterpreted
this section 7(b) of the Government Aided/Private
Institutions taking over by the Government Rules,
1981. Therefore, the impugned Judgment & order
dated 07-02-2022 passed in W.P. (C) No. 137 of
2018 is liable to be quashed.
(vii) After the introduction of National Pension
Scheme (NPS) w.e.f. 01-01-2005, any
Government employees who entered into service
have to subscribe the National Pension Scheme.
The service of the writ petitioners were
regularised/entered in the year 2013 as such,
their case will be governed by the National
Pension Scheme.
(viii) The writ petitioners do not challenge the
Government order dated 22-02-2016 before the
Ld. Single Judge. As such, as long as the
Government order dated 22-02-2016 remained,
the service condition of the writ petitioners has
to be governed by the Government order dated
22-02-2016.
(ix) The present writ appeal could not be filed within
time because the reason explained in the separate
application for condonation of delay occurred in
filing the present writ appeal is bonafide and un-
intentional and delay caused was due to the
circumstances beyond the control of the appellants.
And as such, the Hon'ble Court may be pleased to
condone the delay and the appeal be heard on
merit, in view of the facts and circumstances
enumerated in the memo of Appeal.
W.A. No. 33 of 2023 Page 15
[9] Heard both the learned counsels for the parties and also
perused the applications with the records available with us.
For the sake of convenience, we extracted the names of
the petitioners, the posts held by them, the Government's approval
order number and date are extracted hereunder:
SL. NAME OF STAFF POST School Name School Name GOVT. APPROVAL DATE OF
No. (before (after ORDERS NO. & EFFECT
conversion) conversion) DATE
1. O. Manisana Singh, SGT ValteKhamzathang BijangLoubak No. 3/2/2010-ED 23/12/2011
Petitioner No. 1 High School High School (CCP), Dt. 14.05.2012
2. P.K. MawiGuite, LDC -do- -do- No. 4/4/86-DEO (CC), 01/06/1987
Petitioner No. 2 Dt. 10.08.1987
3. N. Ibobi Singh, SGT -do- -do- No. 4/4/86-DEO (CC), 01/12/1986
Petitioner No. 3 Dt. 19.01.1987
4. L. Haridas Singh, AGT Patpuihmun H/S Dr. Thouma No. 4/3/83-DEO (S), 01/10/1980
Petitioner No. 4 Govt. H/S Dt. 27.09.1983
5. Th. Ingo Singh, AGT -do- -do- No. 4/3/83-DEO (S), 01/10/1980
Petitioner No. 5 Dt. 27.09.1983
6. Khawllienkim, AGT -do- -do- No. 4/4/87-DEO (CC), 16/04/1987
Petitioner No. 6 Dt. 07.11.1987
7. WungkathingMakan AGT Tongou H/S Tongou H/S No. 3/1/2012- 23/12/2011
g, ZEO/Appt/UKL,
Petitioner No. 7 Dt. 25.4.2012
8. Mathotmi Z. AGT -do- -do- No. 3/1/2012- 23/12/2011
Ngalung, ZEO/Appt/UKL, Dt.
Petitioner No. 8 25.4.2012
9. S.R. Ningthar, LDC Mapithel Area H/S Mapithel Area No. 12/10/74-DEO 01/10/1980
Petitioner No. 9 H/S (UK), Dt. 28.11.1980
10. N. Hiramni Singh, AGT Makui H/S Makui H/S No. 2/16/69-ED (TML), 01/10/1980
Petitioner No. 10 Dt. 25.11.1980
11. N. Sucheta Devi, AGT -do- -do- No. 6/31/97-ED (TML), 01/01/2012
Petitioner No. 11 Dt. 26.07.2012
12. L. Rachandra SGT -do- -do- No. 2/16/69-ED 01/12/1986
Singh, (TML),Pt.II Dt.
Petitioner No. 12 01.09.1986
13. NirmalDornal, AGT Gorkha H/S Kalapahar H/S No. 3/14/2005-ZEO 01/01/2012
Petitioner No. 13 (Kpi), Dt. 06.06.2012
14. Dev Kumar Katwal, LDC -do- -do- No. 3/4/91-DEO (K), 11/11/1992
Petitioner No. 14 Dt. 12.02.1993
15. T.G. Raisong, LDC Maram Aided H/S Maram H/S No. 5/6/DEO-M/80, Dt. 01/10/1980
Petitioner No. 15 15.11.1980
16. Ph. Ibungcha SGT -do- -do- No. 3/AAT/86-DEO (K), 11/02/1988
Singh, Dt. 27.02.1988
17. Shelley P.H., SGT North District Tungjoy H/S No. 1/16/2005(ZEO- 23/12/2011
Petitioner No. 17 Govt. Aided H/S SPT), Dt. 09.05.2012
18. P.S. Hepuni, LDC -do- -do- No. 5/7/DEO-N-80, Dt. 01/10/1980
Petitioner No. 18 06.01.1981
19. Kamo Joseph, AGT Ngari H/S Ngari H/S No. 1/16/2005(ZEO- 23/12/2011
Petitioner No. 19 SPT), Dt. 09.05.2012
20. S. Hruni, LDC -do- -do- No. 5/7/DEO-SPT/80, 01/11/1983
W.A. No. 33 of 2023 Page 16
Petitioner No. 20 Dt. 21.12.1983
21. W. Opendro Singh, SGT -do- -do- No. 5/30/DEO-SPT/80, 20/04/1987
Petitioner No. 21 Dt. 24.06.1987
22. YarnaoKeinam, AGT Thiwa H/S Thiwa H/S No. 5/6/DEO-N/80, Dt. 01/10/1980
Petitioner No. 22 25.11.1980
23. Ng. Manidhaja AGT -do- -do- No. 5/30/DEO-Spt/80, 01/06/1988
Singh, Dt. 21.06.1988
24. K.T. Ngalangzar, LDC -do- -do- No. 5/6/DEO-N/80, Dt. 01/10/1980
Petitioner No. 24 25.11.1980
25. ChiriKeinam, AGT -do- -do- No. 5/30/DEO-SPT/80, 20/04/1987
Petitioner No. 25 Dt. 24.06.1987
26. S. Ngou, AGT Laii H/S Laii H/S No. 5/19/ZEO-SPT/81, 17/07/2003
Petitioner No. 26 Dt. 02.09.2003
27. A. Hillaryo, LDC Phaibung H/S Phaibung H/S No. 5/7/DEO-N/80, Dt. 01/09/1982
Petitioner No. 27 01.09.1982
28. Th. Bijendra Singh, SGT -do- -do- No. 4/61/ZEO-SPT/80, 29/11/2001
Petitioner No. 29 Dt. 04.04.2003
29. Ng. Gomati Devi, AGT Mapithel Area H/S Mapithel Area No. 3/1/2012- 23/12/2011
Petitioner No. 30 H/S ZEO/Appt/UKL, Dt.
25.04.2012
30. Dennis T. SGT Hill Model Aided Singngat H/S No. 3/8/92-DEO(CC), 01/01/1994
Dongzahao, H/S Dt. 06.04.1993
31. T. Paudam, AGT -do- -do- No. 3/4/03-ED(CCP), 01/10/2006
Petitioner No. 32 Dt. 09.11.2006
32. L. Gouchingkhup, AGT -do- -do- No. 3/4/03-ED(CCP), 01/10/2006
Petitioner No. 33 Dt. 09.11.2006
[10] Carefully perused the grounds taken herein by the
appellants as extracted above. In that, the relevant grounds to be
discussed in the present appeal are Grounds No. (iii), (iv), (v), (vii) &
(viii) and the rest of the grounds have been discussed and decided
properly by the Ld. Single Judge in the impugned order.
[11] As submitted by the learned counsel for the appellants,
the conversion of the 13 (thirteen) Government Aided High Schools
into full-fledged Government High Schools with the rider that the
Education Department will retain only approve teachers/staffs and
those untrained teachers shall undergo as per NCTE norms and other
shall be with immediate effect i.e. with effect from the date of the
order of Administrative Department was done in pursuance of the
W.A. No. 33 of 2023 Page 17
Cabinet policy/policy decision of the Government as such, a Writ
Court cannot interfere with any policy decision of the Government.
It is an admitted fact that the administrative
decision/cabinet policy/policy decision of the Government, if
arbitrariness is not committed in taking the said decision, Court
cannot interfere with any policy decision of the Government. But, in
the instant case, on perusal of the facts as put out by both the
learned counsels, the commission of the arbitrariness on the part of
the Government in taking policy decision is evident.
In this regard, the Ld. Single Judge discussed about it in
detail. Para No. 17 of the impugned judgment is extracted herein
below:
"[17] After hearing the learned counsel appearing for the
parties at length and after careful examination of the
records, this Court finds force and merit in the submissions
made on behalf of the petitioners. On careful examination of
the memorandum for Cabinet dated 27.11.2015 and the
proposal made there under as well as the State Cabinet
decision taken on 27.11.2015 approving the proposal for
conversion of 13 (thirteen) Government Aided High Schools
to full-fledged Government High Schools and absorption of
the services of the approved employees (three Graduate
Teachers and one LDC) for each schools, no condition was
mentioned either in the said memorandum for Cabinet or in
the said decision of the Cabinet for effecting such conversion
or absorption with effect from the date of issue of order by
the Administrative Department. However, the Finance
Department, while conveying concurrence to the aforesaid
State Cabinet decision, incorporated the condition that the
order shall be with effect from the date of issue of order by
the Administrative Department. On examination of the
relevant files of the Finance Department produced by the
respondents, no reason whatsoever were given or disclosed
by the Finance Department for adding or incorporating the
condition that the order WP(C) No. 137 of 2018 Page 19
should be with effect from the date of issue of the order by
the Administrative Department. Accordingly, this Court is of
the considered view that the said condition imposed by the
W.A. No. 33 of 2023 Page 18
Finance Department is neither in conformity with the
decision taken by the State Cabinet, nor is it supported by
any reason, hence, the act of the Finance Department
imposing such conditions is arbitrary and therefore legally
unsustainable."
[12] With the above observation, the Ld. Single Judge rightly
relied upon the following Apex Court's judgment & orders, Para No.
18, 19, 20, 21 & 22are extracted herein below:
"[18] In the case of "Shrilekha Vidyarthi Vs. State of
U.P." reported in (1991) 1 SCC 212, the Hon'ble Apex
Court held as under:-
"36. The meaning and true import of arbitrariness is
more easily visualised than precisely stated or
defined. The question, whether an impugned act is
arbitrary or not, is ultimately to be answered on the
facts and in the circumstances of a given case. An
obvious test to apply is to see whether there is any
discernible principle emerging from the impugned act
and if so, does it satisfy the test of reasonableness.
Where a mode is prescribed for doing an act and
there is no impediment in following that procedure,
performance of the act otherwise and in a manner
which does not disclose any discernible principle
which is reasonable, may itself attract the vice of
arbitrariness. Every State action must be informed by
reason and it follows that an act uninformed by
reason, is arbitrary. The rule of law contemplates
governance by laws and not by humour, whims or
caprices of the men to whom the governance is
entrusted for the time being. It is trite that 'be you
ever so high, the laws are above you'. This is what
men in power must remember, always."
[19] In the case of "East Coast Railway Vs. Mahadev
Appa Rao" reported in (2010) 7 SCC 678 (Supra), it
has been held by the Hon'ble Apex Court 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
W.A. No. 33 of 2023 Page 19
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."
[20] In the case of "Union of India Vs. International
Trading Co." reported in (2003) 5 SCC 437, it has been
held by the Hon'ble Apex Court at Para 16 that where a
particular mode is prescribed for doing an act and there is no
impediment in adopting the procedure, the deviation to act in
different manner which does not disclose any discernible
principle which is reasonable itself shall be labelled as
arbitrary. Every State action must be informed by reason and
it follows that an act uninformed by reason is per se arbitrary.
[21] In the case of "State of Orissa Vs. Dhaniram
Luhar" reported in (2004) 5 SCC 568, it has been held
by the Hon'ble Apex Court as under:-
"7. Reason is the heartbeat of every conclusion,
without the same it becomes lifeless."
"8. Even in respect of administrative orders Lord
Denning M.R. in Breen V. Amalgamated Engg. Union
observed: "the giving of reason is one of the
fundamental of good administration". In Alexander
Machinery (Dudley) Ltd. Vs. Crabtree it was
observed: "Failure to give reason amounts to denial
of justice". "Reasons are live links between the mind
of the decision-taker to the controversy in question
and the decision or conclusion arrived at". Reasons
substitute subjectivity by objectivity. The emphasis
on recording reasons is that if the decision reveals
the "inscrutable face of the sphinx", it can be its
silence, render it virtuallyimpossible for the Courts to
perform their appellate function or exercise the
power of judicial review in adjudging the validity of
the decision. Right to reason is an indispensable part
of a sound judicial system; reasons at least sufficient
to indicate an application of mind to the matter
before Court. Another rational is that the affected
party can know why the decision as gone against
him. One of the salutary requirements of natural
justice is spelling out reasons for the order made; in
other words, a speaking-out "inscrutable face of the
sphinx" is ordinarily incongruous with a judicial or
quasi-judicial performance".
[22] In the case of "Krishna Swami Vs. Union of
India" reported in (1992) 4 SCC 605, it has been held by
the Hon'ble Apex Court at Para 47 that -
"47. ....... Undoubtedly, in a parliamentary
democracy governed by rule of law, any action,
decision or order of any statutory/public
W.A. No. 33 of 2023 Page 20
authority/functionary must be founded upon reasons
stated in the order or staring from the record.
Reasons are the links between the material, the
foundation for their erection and the actual
conclusions. They would also demonstrate how the
mind of the maker was activated and actuated and
their rational nexus and synthesis with the facts
considered and the conclusions reached. Lest it
would be arbitrary, unfair and unjust, violating Article
14 or unfair procedure offending Article 21. But
expectations are envisaged keeping institutional
pragmatism into play, conscious as we are of each
other's limitations".
After discussing the above fact with the observation
made by the Hon'ble Apex Court, the Ld. Single Judge rightly
observed that the imposition of the condition by the Finance
Department was arbitrary and accordingly, unsustainable in law and
the same is reproduced herein below:
"23. In view of the facts and circumstances of the present
case and in view of the above-quoted well settled principle of
law laid down by the Hon'ble Apex Court, this Court has no
hesitation to hold that imposition of the condition by the
Finance Department for absorption of the services of the
petitioners with effect from the date of issue of order by the
Administrative Department without assigning or disclosing
any reason is per se arbitrary and accordingly unsustainable
in law."
With respect to Grounds No. (iii), (iv) and (v), the Ld.
Single Judge rightly and satisfactorily discussed this aspect of the
matter at Para No. 17 of the impugned judgment and order supported
by Hon'ble Apex Court's orders and the same is extracted herein
below:
"17. After hearing the learned counsel appearing for the
parties at length and after careful examination of the records,
this Court finds force and merit in the examination of the
memorandum for Cabinet dated 27.11.2015 and the proposal
made there under as well as the State Cabinet decision taken
on 27.11.2015 approving the proposal for conversion of 13
(thirteen) Government Aided High Schools to full-fledged
W.A. No. 33 of 2023 Page 21
Government High Schools and absorption of the services of
the approved employees (three Graduate Teachers and one
LDC) for each school, no condition was mentioned either in
the said memorandum for Cabinet or in the said decision of
the Cabinet for effecting such conversion or absorption with
effect from the date of issue of order by the Administrative
Department. However, the Finance Department, while
conveying concurrence to the aforesaid State Cabinet
decision, incorporated the condition that the order shall be
with effect from the date of issue of order by the
Administrative Department. On examination of the relevant
files of the Finance Department produce by the respondents,
no reason whatsoever were given or disclosed by the Finance
Department for adding or incorporating the condition that the
order should be with effect from the date of issue of the
order by the Administrative Department. Accordingly, this
Court is of the considered view that the said condition
imposed by the Finance Department is either in conformity
with the decision taken by the State Cabinet, nor is it
supported by any reason, hence, the act of the Finance
Department imposing such conditions is arbitrary and
therefore legally unsustainable."
[13] Furthermore, it is an admitted fact that in similarly
situated position with the facts of the instant case, while conversion
of the 2 (two) Aided High Schools to full-fledged Government High
Schools i.e. (i) Heirok Part - I Aided High School and (ii) Sagang
Aided High School, in the said two orders, the State Government
clearly allowed the absorption of the services of the approved
employees of the said two schools in Government services w.e.f. the
date of entering their services as approved employees for the purpose
of pension benefit only.
[14] On further perusal, such absorptions have been allowed
by the State Government as per the provisions of the Manipur Civil
Services (Appointment and Other Service Conditions of Employees of
Government Aided/Private Institutions taken over by the Government
Rules, 1981). Admittedly, this fact is not denied by the appellants
W.A. No. 33 of 2023 Page 22
anywhere in the present appeal as well as the counter affidavit filed in
the writ petition. In deciding this point, the Ld. Single Judge
appropriately discussed about the exercise of the powers conferred by
the proviso to Article 309 of the Constitution of India framed rules
called "The Manipur Civil Service Appointment and Other Service
Conditions of Employees of Government Aided/Private Institutions
taken over by the Government Rules, 1981" and also rightly referred
Rule 7 of the said Rules; for convenience sake, the same is extracted
herein below:
"7. Protection of past service :
(a) The persons so appointed in the Government service shall
be deemed to have been appointed in the same capacity as
in the Government Aided/Private Institutions, i.e. Temporary,
Officiating, Substantive, as the case may be, and the
condition of probation and confirmation shall be deemed to
have been waived in case of substantive or permanent
officials.
(b) The service rendered by the employees of the
Government Aided/Private Institutions on an equated post
shall be counted as experience or service required for
promotion or direct recruitment as the case may be."
[15] It is settled principle of law that one should not be
discriminated and the equality clause enshrined under Article 14 & 16
of the Constitution of India must be preserved and protected. The
Apex Court in Union of India vs. K.T. Shashtri reported in AIR 1990
SC 598,as extracted in the impugned judgment & order of the Ld.
Single Judge,observed that -
[13] In support of his contentions, the learned counsel
relied on the judgment rendered by the Hon'ble Apex Court in
the case of "Union of India Vs. K.T. Shashtri" reported in AIR
1990 SC 598 wherein, the Hon'ble Apex Court held as under:
W.A. No. 33 of 2023 Page 23
"5. It is this decision which is challenged before us
by the appellants. Mr. Subba Rao, learned counsel
appearing for the appellants contended that the
Government had a right to prescribe different
conditions of service for the members belonging to
the different units, and merely because the
superannuation age of the members of the DRDS
was increased, it could not be held that the
respondent who belonged to another unit, viz.
DAQAS, was entitled to the said benefit. There is no
dispute that the Government has power to vary the
service conditions of the members of the services
from time to time. The question involved in the
present appeal is, however, not whether the
Government had such power. The question is
whether the respondent was also entitled to the
benefit of the power so exercised in the facts and
circumstances of the case. The admitted facts are
that in 1966 when the respondent was recruited to
the Defence Science Service, the three units
belonged to the said Service and the employees were
recruited initially to that service and then sent to
different units. The service conditions of the
employees belonging to the three units were the
same and their services were interchangeable
between the three units. The Service Rules which
applied to all the three units were also common, viz.
Defence Science Service Rules. The three units,
therefore, belonged to and constituted one single
service. It is later in the year 1979, that the Defence
Research Service was reconstituted into three
different services as stated above. However, at that
time, admittedly no option was given to the
employees working in the different units to opt for
one or the other of the units. It appears that those
who were already working in either of the three units
were deemed to belong to the respective newly
constituted service. This being so, their service
conditions will have to run parallel and no
discrimination can be made between them by an
unilateral action. The classification made between
them further has no rational basis and no nexus of
such classification to the object sought to be
achieved has been shown to us by Mr. Subba Rao
appearing for the appellants. In the circumstances,
the denial of the benefit of the enhanced
superannuation age to the members of one unit
while the same is granted to the members of the
other unit amounts to discrimination, violative of
Article 16 of the Constitution. We are, therefore,
satisfied that the decision of the Tribunal is both
W.A. No. 33 of 2023 Page 24
proper and valid, and there is no substance in the
present appeal. The appeal is, therefore, dismissed."
[16] Furthermore, the Hon'ble Supreme Court observed in
this matter in series of its judgment & orders:
Karnataka Industrial Areas Development Board
&Anr. V. Prakash Dal Mill &Ors. (2011) 6 SCC 714-
"23. The Board being State within the meaning of Article 12
of the Constitution of India is required to act fairly,
reasonably and not arbitrarily or whimsically. The guarantee
of equality before law or equal protection of the law under
Article 14 embraces within its realm exercise of discretionary
powers by the State. The High Court examined the entire
issue on the touchstone of Article 14 of the Constitution of
India. It has been observed b that the fixation of price done
by the Board has violated Article 14 of the Constitution of
India. It is correctly observed that though Clause 7(b)
permits the Board to fix the final price of the demised
premises, it cannot be said that where the Board arbitrarily
or irrationally fixes the final price of the site without any
basis, such fixation of the price could bind the lessee. In
such circumstances, the Court will have the jurisdiction to
annul the decision, upon declaring the same to be void and
non est."
East Coast Railway &Anr. V. Mahadev Appa Rao
&Ors. (2010) 7 SCC 678 -
"9. There is no quarrel with the well-settled proposition of
law that an order passed by a public authority exercising
administrative/executive or statutory powers must be judged
by the reasons stated in the order or any record or file
contemporaneously maintained. It follows that the infirmity
arising out of the absence of reasons cannot be cured by the
authority passing the order stating such reasons in an
affidavit filed before the court where the validity of any such
order is under challenge. The legal position in this regard is
settled by the decision of this Court in Commr. of Police v.
Gordhandas Bhanji wherein this Court observed: (AIR p. 18,
para 9)
"9.... public orders, publicly made, in exercise of a
statutory authority cannot be construed in the light
of explanations subsequently given by the officer
making the order of what he meant, or of what was
in his mind, or what he intended to do. Public orders
made by public authorities are meant to have public
effect and are intended to affect the actings and
conduct of those to whom they are addressed and
W.A. No. 33 of 2023 Page 25
must be construed objectively with reference to the
language used in the order itself."
17. It is trite that Article 14 of the Constitution strikes at
arbitrariness which is an antithesis of the guarantee
contained in Articles 14 and 16 of the Constitution. Whether
or not the cancellation of the typing test was arbitrary is a
question which the Court shall have to examine once a
challenge is mounted to any such action, no matter the
candidates do not have an indefeasible right to claim an
appointment against the advertised posts.
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."
S.G. Jiasinghani Appellant V. Union of India
&Ors. Respondents (Civil Appeal No. 1038 of
1965) C.K. Tikku Appellate Asstt Commissioner
of Income Tax, Intervener, Mohan Chandra Joshi
Petitioner V. Union of India &Ors. Respondents
(Writ Petn. No. 5 of 1966) C.K. Tikku Appellate
Asstt. Commissioner of Income Tax, Intervener
[AIR 1967 SC 1427] -
"14. In this context it is important to emphasize that the
absence of arbitrary power is the first essential of the rule of
law upon which our whole constitutional system is based. In
a system governed by rule of law, discretion, when
conferred upon executive authorities, must be confined
within clearly defined limits. The rule of law from this point
of view means that decisions should be made by the
application of known principles and rules and in general,
such decisions should be predictable and the citizen should
know where he is. If a decision is taken without any
principle or without any rule it is unpredictable and such a
decision is the antithesis of a decision taken in accordance
with the rule of law. (See Dicey- "Law of the Constitution -
Tenth Edn., Introduction cx). "Law has reached its finest
moments, stated Douglas, J. in United States v. Wunderlich.
(1951) 342 US 98, "when it has freed man from the
unlimited discretion of some ruler........ Where discretion is
W.A. No. 33 of 2023 Page 26
absolute man has always suffered. It is in this sense that the
rule of law may be said to be the sworn enemy of caprice
Discretion as Lord Mansfield stated it in classic terms in the
case of John Wilkes. (1770) 4 Burr 2528 at p. 2539 "means
sound discretion guided by law. It must be governed by rule
not by humour it must not be arbitrary, vague and fanciful."
Union of India &Anr. v. K.T. Shastri (AIR 1990 SC
598) -
5. It this decision which is challenged before us by the
appellants. Mr. Subba Rao, learned counsel appearing for
the appellants contended that the Government had a right to
prescribe different conditions of service for the members
belonging to the different units, and merely because the
superannuation age of the members of the DRDS was
increased, it could not be held that the respondent who
belonged to another unit, viz. DAQAS, was entitled to the
said benefit. There is no dispute that the Government has
power to vary the service conditions of the members of the
services from time to time. The question involved in the
present appeal is, however, not whether the Government
had such power. The question is whether the respondent
was also entitled to the benefit of the power so exercised in
the facts and circumstances of the case. The admitted facts
are that in 1966 when the respondent was recruited to the
Defence Science Service, the three units belonged to the
said Service and the employees were recruited initially to
that service and then sent to different units. The service
conditions of the employees belonging to the three units
were the same and their services were interchangeable
between the three units. The Service Rules which applied to
all the three units were also common, viz. Defence Science
Service Rules. The three units, therefore, belonged to and
constituted one single service. It is later in the year 1979,
that the Defence Research Service was reconstituted into
three different services as stated above. However, at that
time, admittedly no option was given to the employees
working in the different units to opt for one or the other of
the units. It appears that those who were already working in
either of the three units were deemed to belong to the
respective newly constituted service. This being so, their
service conditions will have to run parallel and no
discrimination can be made between them by an unilateral
action. The classification made between them further has no
rational basis and no nexus of such classification to 'the
object sought to be achieved has been shown to us by Mr.
Subba Rao appearing for the appellants. In the
circumstances, the denial of the benefit of the enhanced
superannuation age to the members of one unit while the
same is granted to the members of the other unit amounts
to discrimination, violative of Article 16 of the Constitution,
We are, therefore, satisfied that the decision of the Tribunal
W.A. No. 33 of 2023 Page 27
is both proper and valid, and there is no substance in the
present appeal. The appeal is, therefore, dismissed.
[17] The decision and observation made above by the
Hon'ble Supreme Court is squarely covered in the present case. The
Hon'ble Supreme Court in State of Himachal Pradesh &Anr. Vs.
Sheela Devi reported in (2023) SCC OnLine SC 1272, observed that
"7. The State, in justification of its appeal contends
through the Learned Advocate General that the High Court's
reasoning is erroneous. It is submitted that Rule 17 of the
CCS Pension Rules, 1972 (hereafter called the Pension Rules)
is inapplicable, having regard to the exclusionary definition in
Rule 2(g). It is further stated that one of the express terms of
contract which the employees voluntarily entered into, was
that barring specified statutory rules, no other service rules
applicable to the regular or permanent employees were
applicable to them.
8. At the outset, it would be necessary to extract Rules 2
and 17 of the CCS (Pension) Rules, 1972 (hereinafter
"Pension Rules") which reads as follows:-
"2. Application-Save as otherwise provided in
these rules, [these rules shall apply to Government
servant appointed on or before the 31st day of
December, 2003] including civilian Government
servants in the Defence Services, appointed
substantively to civil services and posts in connection
with the affairs of the Union which are borne on
pensionable establishments, but shall not apply to-
(a) railways servants;
(b) person in casual and daily rated
employment;
(c) persons paid from contingencies;
(d) persons entitled to the benefit of a
Contributory Provident Fund;
(e) members of the All India Services;
(f) persons locally recruited for service in
diplomatic, Consular or other Indian
establishments in foreign countries;
(f) persons employed on contract except
when the contract provides otherwise;
and
(h) persons whose terms and conditions of
service are regulated by or under the
provisions of the Constitution or any
other law for the time being in force.
W.A. No. 33 of 2023 Page 28
17. Counting of service on contract. (1) A person
who is initially engaged by the Government on a
contract for a specified period and is subsequently
appointed to the same or another post in a
substantive capacity in a pensionable establishment
without interruption of duty, may opt either-
(a) to retain the Government contribution in
the Contributory Provident Fund with interest
thereon including any other compensation for
that service;
(b) to agree to refund to the Government the
monetary benefits referred to in Clause (a) or
to forgo the same if they have not been paid
to him and count in lieu thereof the service
for which the aforesaid monetary benefits
may have been payable.
(2) The option under sub-rule (1) shall be
communicated to the Head of Office under
intimation to the Accounts Officer within a
period of three months from the date of issue
of the order of permanent transfer to
pensionable service or if the Government
servant is on leave on the day, within three
months of his return from leave, whichever is
later.
(3) If no communication is received by the
Head of Office within the period referred to in
sub-rule (2), the Government servant shall be
deemed to have opted for the retention of the
monetary benefit payable or paid to him on
account of service rendered on contract.
9. The Learned Advocate General is correct in his
interpretation, inasmuch as a facial reading of Rule 2(g)
would indicate that contractual employees are excluded from
the pale of Pension Rules. However, what is significant is that
the rule itself in its opening terms saves the application of
other provisions of the pension rules: "Save as otherwise
provided in these rules". If the opening phrase of Rule 2 were
to be understood in this context, any interpretation of Rule 17
as is urged by the State would render such substantive
provision redundant. Rule 17 was engrafted essentially to
cater to the eventuality, where the employees working on
contract basis were regularized at a later stage. It is only for
the purposes of pension that the past service as a contractual
employee is to be taken into account.
W.A. No. 33 of 2023 Page 29
10. So far as the other arguments with respect to the
voluntariness when the employees enters into contractual
services is concerned, this Court is unpersuaded by the
submission because those terms were applicable as long as
the employees remained on contract. However, his or her
status ceased upon regularization."
[18] It is an admitted position of fact that the initial
appointment of the above named respondents/petitioners were
against the clear sanctioned posts.
[19] The question involved in the present case is whether the
respondents/petitioners are entitled to the benefit embedded in the
orders of the abovementioned absorption of the teachers/staffs of (i)
Heirok Part - I Aided High School and (ii) Sagang Aided High School
w.e.f. the date of their initial appointment in the facts and
circumstances. In this regard, in the facts and circumstances, as
narrated above, it is undeniable fact that the same shall be applied to
the present respondents/petitioners. This being so, their service
conditions will have to run parallel and no discrimination can be made
between them by a unilateral action.
In the circumstances, the denial of the benefit enjoyed
by the similarly situated persons, as stated above, amounts to
discrimination, violative of the Article 16 of the Constitution of India.
We are, therefore, satisfied that the decision of the Ld. Single Judge
is both proper and valid. There is no room for interference by this
Court as there is no substance in the present appeal.
W.A. No. 33 of 2023 Page 30
[20] We are of the considered view that the Ld. Single Judge,
while rendering the impugned order discussed the facts and
circumstances of the cases of the parties and rightly passed the
impugned order as per the facts of the case and as per law and as
such, the grounds taken in the present appeal are not sustainable in
the eyes of law.
[21] Accordingly, the present appeal is dismissed as devoid
of merit.
[22] The appellants are directed to comply with the directions
given by the Ld. Single Judge in the impugned order and the whole
exercise should be completed within a period of 3 (three) months
from the date of receipt of a copy of this order.
JUDGE CHIEF JUSTICE
FR/NFR
Bipin
W.A. No. 33 of 2023 Page 31
