Manipur High Court
Mr.Kh. Donshu Chothe vs The State Of Manipur on 29 May, 2024
Author: Ahanthem Bimol Singh
Bench: Ahanthem Bimol Singh
LAISHRA Digitally signed
by LAISHRAM
M DHAKESHORI
DHAKESH DEVI
Date: 2024.06.03
ORI DEVI 12:45:48 +05'30'
IN THE HIGH COURT OF MANIPUR : AT IMPHAL
W.P.(C) No. 731 of 2019
1. Mr.Kh. Donshu Chothe, aged about 60 years,
S/o (Late) Kh.Thambou Chothe, resident of Purum
Chungbam, P.O., P.S. & District - Chandel,
Manipur.
2. Mr. KL. Angshung Anal, aged about 60 years,
S/o (Late) KL. Khelcho Anal, resident of
Phungchong, P.O., P.S. & District -Chandel,
Manipur.
... Petitioner/s
-Versus-
1. The State of Manipur, represented by the
Commissioner/Secretary (PHED), Government of
Manipur, P.O. and P.S. Imphal, Imphal West District,
Manipur, Secretariat South Block-795001.
2. The Chief Engineer, Public Health Engineering
Department (P.H.E.D), Govt. of Manipur, P.O.-
Imphal, P.S.-City Police, Imphal West District, P.W.D.
Complex at Khuyathong, Manipur-795001.
3. The Principal Secretary (Finance,), Govt. of Manipur,
P.O. & P.S. - Imphal, Chief Minister‟s Secretariat at
Babupara, Imphal West District, Manipur-795001.
4. The Joint Secretary/Under Secretary (Pension Cell),
Department of Personnel, Govt. of Manipur, P.O. &
P.S. Imphal, Imphal West District, Manipur-795001
(Secretariat North Block).
... Respondent/s
WP(C) No. 731 of 2019 Page 1
B E F O R E
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the petitioner ∷ Mr.Ch. Robinchandra, Advocate
For the respondents ∷ Mr. Th. Vashum, Government Advocate
Date of Hearing ∷ 26-02-2024
Date of Judgment & ∷ 29-05-2024
Order
JUDGMENT & ORDER
Heard Mr.Ch. Robinchandara, learned counsel
appearing for the petitioners and Mr. Th. Vashum, learned
Government Advocate appearing for the respondents.
2] The present writ petition had been filed with a
prayer for directing the respondents to confirm the Work-
charged services of the petitioners in terms of the guidelines as
contained in the Office Memorandum dated 22-01-2001 issued
by the Finance Department, Government of Manipur, so as to
enable the petitioners to avail pension and other retirement
benefits as provided under the Terminal Benefits for Work
Charged Staffs of PWD/IFCD/PHED/MI and Electricity (Manipur)
Rules, 1978 (hereinafter referred to as Terminal Benefit Rules).
[3] The case of the petitioners is that they were initially
engaged as Muster Roll workers in the capacity of Technical
Jugali and Chowkidar respectively. The State Government
framed a policy regarding the service condition of the
Casual/Muster Roll workers and Work charged staffs of the
Engineering Departments and published the same on 16-04-
WP(C) No. 731 of 2019 Page 2
1997. Under the said policy, casual and muster roll workers
who have completed 10(ten) years‟ service as on 16-04-1997
shall be converted into Work Charged establishments and those
Work Charged employees who have completed 10(ten) years
as on 16-04-1997 shall be converted to regular employees.
Pursuant to the said policy, altogether 888 Muster Roll workers
in the PHED including the present petitioners who have
completed 10(ten) years continuous service as Muster Roll
workers were converted to Work Charged Establishment with
immediate effect by an order dated 11-01-1999 issued by the
Chief Engineer (Rural), PHED, Manipur. After the said
conversion, the petitioners rendered their services as Work
Charged Technical Jugali and Chowkidar respectively in the
PHED for more than 20 (twenty) years till they retired from
service on attaining the age of superannuation w.e.f. 28-02-
2019 and 31-03-2019 respectively. After their retirement from
service, the petitioners submitted representation dated 17-05-
2019 to the Chief Engineers, PHED, Government of Manipur
requesting to grant their pension as provided under the
Terminal Benefits Rule, however the said representation
remains pending without any consideration by the authorities.
[4] Under Rule 6(i)(a) of the Terminal Benefits Rule, it
is provided that the permanent Work Charged staffs will be
entitled to get pension only calculated under the Central Civil
Service Regulation under Article 474 of the Government of
India if the permanent Work Charged employee who retired at
the age of 55 years and at least 30 years‟ service to his credit.
WP(C) No. 731 of 2019 Page 3
By an order dated 24-05-1982 issued by the Secretary, Works
Department, the aforesaid Rule 6(i)(a) of the Terminal Benefits
Rules were amended and as per the amended Rules,
permanent Work Charged staff will be entitled to get pension
only calculated under the Manipur Civil Services (Pension)
Rules, 1977 and amended from time to time if the permanent
Work Charged employee who retire at the age of 55 years and
at least 30 years‟ service to his credit.
[5] It is also the case of the petitioners that under the
Office Memorandum dated 22-01-2001 issued by the Secretary,
Finance Department (Pay Implementation Cell), Government of
Manipur containing guidelines for confirmation of Work Charged
employees, it is inter alia provided that -
(i) Confirmation of Work Charged employees should be
made against the permanent posts in the Work Charged
establishment.
(ii) Confirmation of Work Charged employees may be made
only when they have put in 10 years‟ service as Work
Charged with the effect of confirmation from the date, they
have completed 5 years‟ service in the Work Charged
establishment.
(iii) No, confirmation of those Work Charged employees
who have been brought to the regular establishment, with
retrospective effect, should be made.
[6] According to the petitioners, as they have
completed more than 20(twenty) years‟ service in the Work
Charged establishment, they are entitled to get confirmation of
their services with effect from the date they have completed 5
years‟ service in the Work Charged establishment in terms of
WP(C) No. 731 of 2019 Page 4
the aforesaid Office Memorandum, However, only because of
the negligence and failure on the part of the authorities to
consider their cases for such confirmation, the petitioners have
been deprived of their services being confirmed as provided
under the aforesaid memorandum, thereby resulting in non
payment of their entitled pensionary benefits as provided under
Terminal Benefits Rule.
[7] The further case of the petitioners is that in Rule
No. 5 of the Terminal Benefits Rule, it is mentioned that at the
time of publication of the Terminal Benefits Rule, there are 413
permanent Work Charged posts in the PWD, IFCD, PHED,MI,
Electricity Department and that some more permanent posts at
various departments are to be created for confirmation of Work
Charged employees and that by an order dated 10-03-1988,
issued by the Chief Engineer (PHED), Manipur, altogether 57
different permanent Work Charged posts, including 16 posts of
Technical Jugali and 5 posts of Chowkidar were created. In
view of the above, the stand taken by the respondents that the
Work Charged services of the petitioners could not be
confirmed as there is no permanent posts in the PHED is not
tenable and deserves to be rejected.
[8] It has been submitted on behalf of the petitioners
that the issues raised in the present writ petition are squarely
covered by the judgment and order dated 10-08-2016 passed
by this Court in WP© No. 639 of 2015, judgment and order
dated 03-05-2023 passed by this Court and W.A. No. 48 of
WP(C) No. 731 of 2019 Page 5
2018 and judgment and order dated 12-08-2010 passed by the
Hon‟ble Gauhati High Court, Imphal Bench in WA No. 29 of
2009 and as such, the present writ petition can be allowed by
granting similar reliefs as has been granted in the aforesaid
judgments.
[9] The stand taken by the respondents in their counter
affidavit is that -
(i) There is no permanent Work Charged establishment post
in the PHED and as such, no confirmation can be made;
(ii) Guidelines under para 2(3) of the Office Memorandum
dated 28-08-2007 prescribes that no retrospective
confirmation shall be made after retirement or expiry of the
employee. Since both the petitioners have already retired
from service in the year 2019, their services cannot be
confirmed now in view of the aforesaid guidelines under para
2(3) of the Office Memorandum dated 28-08-2007;
(iii) Under Rule 6(i)(a) of the Terminal Benefits rules as
amended from time to time, only the permanent Work
Charged employee who retired at the age of 55 years and at
least 30 years‟ service to his credit is entitled to avail pension.
Since, the petitioners are not confirmed or permanent Work
Charged employees, they are not entitled to get pension as
provided under the aforesaid amended rule 6(i)(a) of the
Terminal Benefits Rule.
[10] It has been submitted on behalf of the respondents
that there is infirmity in the judgment relied on by the
petitioners and that in the said judgment, some benefits have
been given inadvertently or by mistake and as such, the
petitioners are not entitled to get similar reliefs, inasmuch as, it
will amounts to perpetuate the same mistake. In support of the
said contention, learned counsel for the respondents cited the
WP(C) No. 731 of 2019 Page 6
case law reported in 2011 (3) SCC 436 "State of Orissa &
anr. -Vrs.- Mamata Mohanty" wherein it has been held as
under :
"56. It is a settled legal proposition that Article 14 is not
meant to perpetuate illegality and it does not envisage
negative equality. Thus, even if some other similarly situated
persons have been granted some benefit inadvertently or by
mistake, such order does not confer any legal right on the
petitioner to get the same relief.(Vide Chandigarh Admn. V.
Jagjit Singh, Yogesh Kumar v. Govt. of NCT of Delhi, Anand
Buttons Ltd. V. State of Haryana, K.K. Bhalla v. State of M.P.,
Krishan Bhatt v. State of J&K, Upendra Narayan Singh and
Union of Inai v. Kartick Chandra Mondal).
"57. This principle also applies to judicial pronouncements.
Once the court comes to the conclusion that a wrong order
has been passed, it becomes the solemn duty of the court to
rectify the mistake rather than perpetuate the same. While
dealing with a similar issue, this Court in Hotel Balaji v. State
of A.P. observed as under: (SCC p. 551, para 12)
"12....'2....To perpetuate an error is no heroism. To
rectify it is the compulsion of judicial conscience. In
this, we derive comfort and strength from the wise
and inspiring words of Justice Bronson in Pierce v.
Delameter AT P. 18:
"a Judge ought to be wise enough to know that he is
fallible and, therefore, ever ready to learn: great and
honest enough to discard all mere pride of opinion and
follow truth wherever it may lead: and courageous
enough to acknowledge his errors".'*''
[11] In the present case, the Muster Roll service of the
present petitioners were converted to Work Charged
Establishment by the order dated 11-01-1999 issued by the
Chief Engineer (Rural) PHED, Manipur with immediate effect.
After such conversion to Work Charged establishment, the
petitioners rendered their services as a Work Charged
WP(C) No. 731 of 2019 Page 7
employee in the PHED for more than 20(twenty) years till they
retired from their service on attaining the age of
superannuation w.e.f. 28-02-2019 and 31-03-2019 respectively.
The guidelines contained in paragraph 4 of the Office
Memorandum dated 22-01-2001 prescribes that confirmation of
Work Charged employee should be made against the
permanent posts in the Work Charged establishment and that
confirmation of Work Charged employees may be made only
when they have put in 10(ten) years‟ service as Work Charged
with the effect of confirmation from the date, they have
completed 5 (five) years‟ service in the Work Charged
establishment.
[12] On examination of the record, it is found that the
petitioners have put in 10(ten) years‟ service as Work Charged
employee in the year 2009, more than a decade before the
date of their retirement, and as such, this Court is of the
considered view that the petitioners were entitled to have their
cases considered by the authorities for confirmation of their
Work Charged services in terms of the aforesaid Office
Memorandum dated 22-01-2001 well before their retirement.
Only because of the failure or negligence on the part of the
concerned authorities, the petitioners have been deprived of
their Work Charged services being confirmed as provided under
the said Office Memorandum dated 22-01-2001 and they have
been made to suffer on account of the failure and negligence
on the part of the respondents and for no fault on their part.
WP(C) No. 731 of 2019 Page 8
[13] With regard to the first stand taken by the
respondents, it is to be pointed out that such stand of the
respondents is contrary to the materials available on record. As
submitted by the petitioners, 412 permanent Work Charged
posts in the Engineering Departments of the Manipur
Government were available at the time of publication of the
Terminal Benefits Rule and such factum is clearly mentioned at
Rule 5 of the said Terminal Benefits Rule. In the said Rule 5, it
is also mentioned that some more permanent posts at various
departments are to be created for confirmation of Work
Charged staffs. Moreover by an order dated 10-03-1988 issued
by the Chief Engineer (PHED), Manipur, altogether 57 various
categories of permanent Work Charged posts, including 16
posts of Technical Jugali and 5 posts of Chowkidar were
created. In view of such undisputed factual positions, this Court
is not inclined to accept the bold stand taken by the
respondents that the Work Charged services of the petitioners
cannot be confirmed as there is no permanent post in the
PHED.
[14] With regard to the second stand taken by the
respondents, it is to be pointed out that the Office
Memorandum dated 28-08-2007 containing guidelines for
confirmation of Work Charged employees and relied on by the
respondents was given immediate effect, i.e., w.e.f. 28-08-
2007. In my considered view, the said Office Memorandum
having no retrospective effect cannot be made applicable in the
case of the present petitioners, who are entitled to have their
WP(C) No. 731 of 2019 Page 9
cases considered for confirmation of their Work Charged
services under the Office Memorandum dated 22-01-2001 and
before the publication of the aforesaid subsequent Office
Memorandum dated 28-08-2007. In such view of the matter,
this Court is of the considered view that there is no force or
merit in the second stand taken by the respondents. Guidelines
contained in para 2(3) of the Office Memorandum dated 28-08-
2007 cannot stand in the way or deprived the petitioners of
their valuable rights to have their cases considered for
confirmation of their Work Charged services as provided under
the Office Memorandum dated 22-01-2001 specially when large
number of Work Charged staffs/employees similarly situated
with the petitioners have been given the benefit of confirmation
under the said Office Memorandum.
[15] In so far as the 3rd stand taken by the respondents
is concerned, this Court is of the considered view that the issue
raised by the respondents is no longer res integra. The issue as
to whether the Work Charged employee, who is not yet
confirmed or made permanent, is entitled to get pension or not
under the Terminal Benefits rule had been already considered
and decided by the judgment and order dated 12-08-2010
passed by a Division Bench of the Gauhati High Court, Imphal
Bench in WA No. 29 of 2009. The said writ appeal was filed by
the State of Manipur challenging the judgment and order dated
20-11-2007 passed by the learned Single Bench in WP(C)No.
899 of 2006 extending the benefit of family pension to the
WP(C) No. 731 of 2019 Page 10
widow of the Work Charged employee whose service was yet to
be confirmed.
[16] In the said judgment and order, it has been held,
inter alia, that confirmation of service and/or permanency in
service by issuance of specific order is always an uncertainty
and that in normal circumstances, employee after rendering a
particular length of service is entitled to get his service
confirmed or made permanent. It has further been held that for
availing pension/family pension, if confirmation of service is
required, the authorities may do so by passing appropriate
order and thereafter, the Division Bench dismissed the writ
appeal and refused to interfere with the impugned judgment
and order passed by the learned Single Judge. The relevant
portion of the aforesaid judgment and order are reproduced
herein for ready reference :-
"10. Rule 6B which has been quoted above having not made
any distinction between confirmed and permanent work-
charged employees and those who are not confirmed work-
charge employees, we are of the considered opinion that
upon a reference to some other provisions, the expression
„confirmation and permanent‟ cannot be brought into the said
provisions. Be that as it may, on perusal of the chart which
forms part of the Division Bench judgment what we find is
that, there are many work-charged employees whose services
were confirmed retrospectively. In many cases, work-charged
employees were confirmed after their expiry. Thus, it cannot
be said that the benefits to which the families of the said
work-charged employees were provided by way of family
pension would require confirmation of service of the deceased
husband of the petitioner for said benefits to the petitioner. If
for family pension to the petitioner confirmation of her
husband‟s service is required, the authority may do so by
WP(C) No. 731 of 2019 Page 11
passing appropriate order as was done in case of the persons
which we find mention in the Division Bench judgment.
"11. Needless to say confirmation of service and/or
permanency in service by issuance of specific order is always
an uncertainty. In the normal circumstances, an employee
after rendering a particular length of service is entitled to get
his service confirmed or permanent. In the instant case,
husband of the petitioner rendered sufficient length of service
so as to earn confirmation. The chart which formed part of
the Division Bench judgment shows that a work-charged
employee who was appointed on 03-08-1979 was confirmed
w.e.f. 01-03-1986. Likewise, another employee who was
appointed on 21-03-1978 was confirmed by order dated 25-
02-1992 w.e.f. 12-08-1996. Another employee who was
appointed on 01-08-1959 was confirmed w.e.f. 05-03-1968 by
order dated 09-01-1974 after expiry on 15-08-1968. There is
another employee who was appointed on 28-03-1962 was
confirmed on 06-03-1968 by order dated 09-01-1994 after his
expiry on 08-01-1983.
"12. Above being the position, we see no reason as to why
the petitioner who has filed the writ petition should be
deprived of similar treatment. Situated thus, we see no reason
to interfere with the impugned judgment and order passed by
the learned single Judge dated 20-11-2007 in WP(C) No. 899
of 2006."
[17] The SLP being SLP C No. 218/2011 filed by the
State of Manipur assailing the aforesaid judgment and order
dated 12-08-2010 passed in WA No. 29 of 2009 had already
been dismissed by the Hon‟ble Aplex Court by an order dated
17-01-2011 and as such, the matter has attained finality.
[18] In my considered view, the corollary of the
aforesaid judgment and order dated 12-08-2010 passed in WA
No. 29 of 2009 is that confirmation/permanency of the Work
Charged service of an employee is not sine qua non for availing
WP(C) No. 731 of 2019 Page 12
pension / family pension under the Terminal Benefits Rule if it
is found that the Work Charged employee is entitled to get
confirmation/permanency in terms of applicable guidelines and
if the said employee is otherwise found to have rendered the
qualifying service as prescribed under Rule 6 of the Terminal
Benefits Rule.
[19] I have also perused the judgment cited by the
learned Government Advocate in the case of "Mamata
Mohanty" (Supra) and this Court is of the view that the ratio
laid down therein are not applicable in the facts and
circumstances of the present case and that the said judgment
is of no help to the respondents.
[20] Taking into consideration the fact and
circumstances of the present case and in view of the findings
and reasons given therein above, this Court is of the considered
view that the petitioners are entitled to the relief sought for in
the present petition. In the result, the present petition is
allowed. The respondents are directed to consider the cases of
the petitioners for confirmation of their Work Charged service
in terms of the Office Memorandum dated 22-01-2001 and to
issue necessary orders for confirmation of their Work Charged
services, if the same is considered necessary. The whole
process should be completed within a period of 2(two) months
from today. Thereafter the respondents are further directed to
expedite the process for payment of the pension of the
petitioners in terms of Rule 6 of the Terminal Benefits Rule as
WP(C) No. 731 of 2019 Page 13
amended on 24-05-1982 as expeditiously as possible preferably
within a period of 5(five) months from today.
[21] With the aforesaid directions, the present writ
petition is disposed of. There will be no order as to costs.
JUDGE
FR/NFR
Dhakeshori
WP(C) No. 731 of 2019 Page 14
