Moirangthem Karamchand Singh vs State Of Manipur

[1] This writ petition has been filed by the petitioner to quash the impugned order dated 26.10.2018 and to direct the respondents to regularise the services of the petitioner as Legal Officer/OSD (Legal)/Legal Assistant notionally in the Department of Labour, Government of Manipur with effect from the date when the services of 21 incumbents regularised to the posts of Legal Officer/OSD (Legal)/Legal Assistant in different departments under the Government of Manipur.

[2] The case of the petitioner is that he was selected and appointed to the post of OSD (Legal) in the Labour Department on 20.05.2010 and the same was approved by the State Cabinet. Thereafter, the contract service of the petitioner was extended from time to time. In the month of October, 2010, the State Government has taken a policy decision to regularize various contract OSD (legal)/Legal Assistant working in different departments as Legal Officer and a memorandum to that effect was prepared. Altogether, 21 post of OSD Legal were proposed for creation and the same was placed before the State Cabinet on 15.11 .2016. Subsequently, by a letter dated 22.11.2016, the State Cabinet approved the same and 21 persons were regularised as OSD (Legal)/Legal Assistant or Legal Officer, however, the case of the petitioner was left out.

[3] The petitioner submitted a representation to the Hon'ble Minister for Labour and Employment with a request to consider his case for regularisation.

In the mean time, on 3.11.2017, the Deputy Secretary (Labour and Employment) wrote a letter to the second respondent conveying the approval of the Government in re-engaging the petitioner for a period upto 31.1.2018.

[4] Being aggrieved by the non-consideration of the petitioner's case, he had filed W.P.(C) No.857 of 2017 for a direction to the respondents to regularize his service as Legal officer/OSD (legal)/Legal Assistant in the department of Labour with effect from the date when the services of 21 incumbents were regularised to the post of Legal Officer by creating posts in different departments. By the order dated 24.1.2018, the said writ petition came to be disposed of with a direction to the respondents to consider the case of the petitioner sympathetically. Since the respondents failed to comply with the order of this Court, the petitioner has filed Contempt Case No.121 of 2018. However, pending Contempt Case, the third respondent passed the impugned order, which is challenged in this writ petition.

[5] Resisting the writ petition, the first respondent filed affidavit-in-opposition stating that the petitioner was serving in the department of Labour from 20.05.2010 to 31.01.2018, the date on which the petitioner got retired on attaining the age of superannuation. However, the contract service of the petitioner was extended from time to time by issuing necessary orders with breaks in between. As such the averment of the petitioner that he was serving in the department from 20.05.2010 to 31.01.2018 without any break is without any legal basis and the same is denied. It is stated that the legal notice from the counsel for the petitioner along with copy of the order in W.P.(C) No.857 of 2017 was received by the Labour Department on 31.1.2018 i.e., the day when the petitioner attained the age of 60 years and accordingly, the case of the petitioner has been considered sympathetically by the impugned order.

[6] It is also stated that if the case of the petitioner is allowed then it will open a floodgate with similarly situated persons asking for the same relief which cannot be allowed in the absence of any rules in this regard. The impugned order dated 26.10.2018 was issued after obtaining an administrative approval from the competent authority and that it was not an unilateral decision of the officer who issued the said order. At present, there are no policies or schemes for regularisation of the contract service. Hence, prayed for dismissal of the writ petition.

[7] Assailing the impugned order, the learned counsel for the petitioner submitted that when the State Government has taken a policy decision to regularise the services of various contract OSD (Legal)/Legal Assistant working in different departments under the Government of Manipur as Legal Officer and also when 21 posts of OSD Legal were created and accordingly, regularized the services of 21 incumbents, the petitioner has been deliberately left out.

[8] The learned counsel would submit that the guarantee of equal protection under Article 14 of the Constitution of India embraces the entire realms of State action. It would extend not only when an individual is discriminated against in the matter of exercise of his right or in the matter of imposing liabilities upon him, but also in the matter of granting privileges etc. He would submit that all persons in similar circumstances shall be treated alike both in privileges and liabilities imposed.

[9] The learned counsel then submitted that aggrieved by the non-consideration of the regularization, the petitioner, earlier approached this Court by filing W.P.(C) No.857 of 2017, wherein this Court has issued direction to the respondents to consider the case of the petitioner sympathetically, however, without considering the case of the petitioner sympathetically, the third respondent issued the impugned order arbitrarily and therefore, the said order is liable to be set aside. Arguing so, the learned counsel submitted that the petitioner has to be given notional promotion followed with financial benefits. In support, the learned counsel relied upon the following decisions:

(i) John Vallamattom and another v. Union of India, reported in (2003) 6 SCC 611.

(ii) State of Haryana and others v. Gurcharan Singh and others, reported in (2004) 12 SCC 540.

[10] Per contra, the learned counsel for the State submitted that though the petitioner was engaged on contract basis, he was serving in the department from 20.05.2010 to 31.01.2018 with break. He would submit that the third respondent after considering the case of the petitioner sympathetically, has passed the impugned order and therefore, there is no necessity to interfere with the same.

[11] He would submit that since the petitioner was engaged on contract basis, he has no right to claim regularisation. He then submitted that casual employment is meant to serve the exigencies of administration and continuance in service for long period on contract basis confers no right to seek regularisation in service. In support, the learned counsel relied upon the decision of the Hon'ble Supreme Court in State of Tamil Nadu, through Secretary to Government and another v. A.Singamuthu, reported in (2017) 4 SCC 113.

[12] This Court considered the submissions made by both sides and also perused the materials available on record.

[13] The grievance of the petitioner is to regularize his services as Legal Officer/OSD (Legal)/Legal Assistant in the Department of Labour, Government of Manipur as done in the case of 21 incumbents and to pay the financial benefits. According to the petitioner, he has been discriminated when similarly situated and junior to him were regularized by the Government of Manipur.

[14] The selection and appointment of the petitioner as OSD (Legal) in the Department of Labour on contract basis has not been disputed by the respondents. In fact, the respondents admitted that the petitioner was serving in the Department of Labour and Employment on contract basis from 20.05.2010 to 31.01.2018. However, the say of the respondents is that there are no policies or schemes for regularization of contract service.

[15] At this juncture, it is pertinent to note that earlier the petitioner approached this Court by filing W.P.(C) No.857 of 2017 seeking to regularize his service as Legal Officer. By the order dated 24.01.2018, this Court disposed of the said writ petition in the following lines:

Heard Mr. Kh.Tarunkumar, learned counsel appearing for the petitioner and Mrs. Th. Sobhana, learned GA for the respondents.

By the instant writ petition, the petitioner has prayed for issuing a writ of Mandamus to direct the respondents to regularize the service of the petitioner as Legal Officer/OSD (Legal)/Legal Assistant in the Dept. of Labour, Govt. Of Manipur on the ground that as many as 27 (twenty-one) incumbents have been regularized pursuant to a policy decision taken by the Government. On receipt of the notice issued by this Court, an affidavit on behalf of respondent Nos.7 & 2 has been filed wherein it has been stated that the policy of the State Government was not extended to the Dept. of Labour engaging OSD (Legal) on contract basis for the reasons known to the State Government.

It is not in dispute that the Dept. of Labour is also one of the Departments of the State Government and the reason as to why the policy decision was not extended to the Department of Labour was not disclosed in the affidavit and moreover, the allegation of the petitioner that his case has been left out while regularising the services of the incumbents, has not been denied at all in the affidavit. In view of the above, the instant writ petition stands disposed of with the direction that the respondents shall consider the case of the petitioner sympathetically for the purpose of regularisation within a period of 1 (one) month from the date qf receipt of a copy of this order by extending the benefits of the policy decision of the State Government,"" (emphasis supplied)

[16] Pending Contempt Case, the third respondent passed the impugned order and the impugned order reads thus:

Whereas, this department received on 31st January, 2018 a legal notice from the Legal Counsel of Shri Moirangthem Karamchand Singh furnishing a copy of the Hon'ble High Court of Manipur order dated 24th January, 2018 passed in WP(C) No.857 of 2017 in the case of Shri Moirangthem Karamchand Singh versus the State of Manipur & Anr. In which the following order as passed, ""In view of the above, the instant writ petition stands disposed of with the direction that the respondents shall consider the case of the petitioner sympathetically for the purpose of regularization within a period of 1 (one) month from the date of receipt of a copy of this order by extending the benefits of the policy decision of the State Government.

2, Whereas, Shri Moirangthem Karamchand Singh was engaged as OSD (Legal) in the Office of the Deputy Labour Commissioner, Manipur on contract basis since 20/05/2010 and his contract service was extended from time to time upto 31/01/2018 i.e. upto attaining the age of 60 years.

Now, in view of the above and in compliance of the High Court's order dated 24/01/2018 in WP(C) No.857 of 2017 as mentioned above, the case of the petitioner has been considered sympathetically. The matter has been consulted with Department of Personnel, Government of Manipur, Finance Department (PIC), Government of Manipur and Law Department, Government of Manipur, and it has been found that the relief prayed by Shri Moirangthem Karamchand Singh for regularization of his service cannot be considered since Shri Moirangthem Karamchand Singh has already attained the age of 60 years on 31/01/2018.’

[17] Virtually, the order impugned in the present petition has not been passed pursuant to the direction of this Court in the earlier round of litigation. In the earlier round of litigation, when the petitioner approached this Court, this Court has issued a positive direction to the respondents to consider the case of the petitioner sympathetically for the purpose of regularization within a period of one month from the date of receipt of a copy of the order by extending the benefits of the policy decision of the State Government. Though the respondents contended that there are no policies or schemes for regularization of contract service, nothing has been produced by the respondents to establish their plea. When the direction of the learned Single Judge of this Court in W.P.(C) No.857 of 2017 is positive in nature, the authorities concerned ought to have obeyed the direction issued by this Court. It appears that as against the order passed in W.P.(C) No.857 of 2017, the official respondents have not preferred any appeal and thus, the order of the learned Single Judge attained finality.

[18] As observed by this Court in W.P.(C) No.857 of 2017, the Department of Labour is also one of the Departments of the State Government and the reason as to why the policy decision was not extended to the Department of Labour was not disclosed by the respondents. There is also no whisper in respect of not extending the policy decision to the Department of Labour in the affidavit filed by the first respondent. Therefore, the reason for denying the benefit to the petitioner that if the petitioner is extended to the relief, it will open the floodgate with similarly situated persons asking for the same relief, cannot be countenanced.

[19] When similarly situated Law Officers in the other departments have been regularised by creating 21 posts of OSD Legal, the act of the respondents not extending the same policy to the petitioner is denial of equality and discrimination between one person and another. Therefore, reason for not extending the benefit in the case of the petitioner stated by the respondents is not acceptable.

[20] In John Vallamattom, supra, the Hon'ble Supreme Court held:

Article 14 of the constitution states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The first part of Article 14 of the constitution of India is a declaration of equality of civil rights for all purposes within the territory of India and basic principles of republicanism and there will be no discrimination. The guarantee of equal protection embraces the entire realm of "State action". It would extend not only when an individual is discriminated against in the matter of exercise of his right or in the matter of imposing liabilities upon him, but also in the matter of granting privileges etc. In all these cases, the principle is the same, namely, that there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is the same. In my view, all persons in similar circumstances shall be treated alike both in privileges and liabilities imposed. The classification should not be arbitrary; it should be reasonable and it must be the same relief based on qualities and characteristics and not any other who are left out, and those qualities or characteristics must have reasonable relations to the object of the legislation.

[21] In Gurcharan Singh, supra, the Hon'ble Supreme Court held:

That brings us to the challenge against the decision of the High Court, It has been submitted that Standing Order 28 and paragraph 493 do not create any right in favour of any person to get back possession of the land. There can be no dispute with that proposition. However, at the same time, it is clear that the Government having taken a policy decision, must implement that policy decision fairly and uniformly. It is not open to the Government to discriminate between persons similarly situated. In this case it has been shown that the Government has acted on the policy decision and released land in favour of other persons. Nothing has been brought on record to show why the policy should not be applied in favour of the respondents. It is admitted that the land is no longer required by the Government. Thus, even though there may be no right in the respondents to claim back possession, we still do not think it fit to interfere as it has been clearly shown that the Government is acting discriminately. .......

[22] The Government having taken a policy decision, must extend that policy decision fairly and uniformly and nobody should be discriminated.

However, in the case at hand, the petitioner has been discriminated by not extending the policy decision despite having utilised the services of the petitioner from 25.10.2010 to 31.01.2018. Though the respondents contended that the services of the petitioner is not continuous and there is break in service and that the petitioner is entitled to seek regularization, nothing has been produced to establish that there is break in service. Therefore, it is to be held that the petitioner served in the Department of Labour from 25.10.2010 to 31.01.2018, the date on which he got retired on attaining the age of 60 years. Further, the treatment meted out to the petitioner is found to be discriminatory, and as such, violates Article 14 of the Constitution of India.

[23] The decision relied upon by the learned counsel for the State in the case of A.Singamuthu, supra, is not applicable to the facts and circumstances of the case. As stated supra, when the respondents have failed to obey the direction of this Court in W.P.(C) No.857 of 2017, they have no right to say that the petitioner being appointed on contract basis is not entitled to get regularization.

[24] lt is pertinent to note that this Court passed an order in W.P.(C) No.857 of 2017 on 24.01.2018 and the impugned order came to be passed by the third respondent on 26.10.2018 after a delay of nearly nine months from the date of the order in the writ petition. Moreover, nothing on record to show that before passing the impugned order, the petitioner was heard by the third respondent. Therefore, it is to be held that the impugned order has been passed with a considerable delay in order to avoid contempt proceedings. Further, the impugned order has been passed without proper application of mind as the direction of this Court to consider the case of the petitioner for regularization by extending the policy decision of the State Government was not at all considered by the third respondent.

[25] Therefore, this Court is of the view that since the similarly situated 21 incumbents were regularized as Legal Officer by creating posts, it would be necessary to issue a direction to the respondents to regularise the services of the petitioner with effect from the date when the said 21 incumbents were regularised notionally.

[26] In the result,

(i) The writ petition is allowed.

(ii)The impugned order dated 26.10.2018 passed by the third respondent is set aside.

(iii) The respondents are directed to regularise the services of the petitioner notionally with effect from the date when 21 incumbents were regularised and grant him financial benefits, if any.

(iv) The said exercise is directed to be completed by the respondents within a period of three months from the date of receipt of a copy of this order.

(v) No costs.