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Judgment
Heard Shri Ng. Jotindra, the learned counsel appearing for the petitioner; Ms. L. Monomala, the learned Government Advocate appearing for the State respondents and Shri L. Raju, the learned counsel appearing for the respondent No. 3.
The instant writ petition has been filed by the petitioner praying for quashing the impugned order dated 28-04-2014 issued by the Under Secretary (Fishery), Government of Manipur. The other prayer made in the writ petition is to direct the respondents to pay the petitioner her pay and allowances as Research Assistant in the Department of Fisheries, Government of Manipur for the period from 01-10-2001 to 23-09-2005.
1. According to the petitioner, she was initially appointed as ad-hoc Research Assistant in the Department of Fisheries vide order dated 07-01-1999 issued by the Director of Fisheries, Manipur for a period of three months and her ad-hoc service was extended from time to time. Apprehending that her ad-hoc service might be terminated by the State respondents, the petitioner along with two others filed a writ petition being W.P. (C) No. 1480 of 2000 which was disposed of by the then Hon''ble Gauhati High Court vide its order dated 14-11-2000 with the direction that the respondents therein should allow the petitioners including the present petitioner to continue in their service as ad-hoc Fishery Inspector/Research Assistant till the post held by them were filled up on regular basis. Accordingly, the Director of Fisheries, Government of Manipur addressed a letter dated 15-07-2005 to the Secretary (Fishery), Government of Manipur for extension of ad-hoc service of the petitioner and a certificate dated 22-03-2006 was also issued by the Project Officer, Fishery Research Centre, Khundrakpam, Manipur certifying that the petitioner was still working as the Research Assistant ever since 07-01-1999 and her pay and allowances had not been paid w.e.f. 01-10-2001 due to non-extension of her ad-hoc service. On 13-09-2006, the Director of Fisheries, Government of Manipur addressed a letter to the Commissioner (Fishery), Government of Manipur in respect of financial involvement for the payment of the arrear of pay and allowances of the ad-hoc employees amounting to Rs. 46 lakhs. A chart of financial involvement in respect of the ad-hoc employees was also enclosed wherein the petitioner''s name figured at Sl. No. 5. In a purported compliance of the court''s order dated 14-11-2000, the Deputy Secretary (Fishery), Government of Manipur issued a letter dated 27-12-2006 conveying the approval of the Government to the extension of the ad-hoc service of the petitioner as Research Assistant for a period of six months w.e.f. 24-09-2005. On 21-08-2007, the Director of Fisheries, Government of Manipur addressed a letter to the Employment Exchange Officer requesting him to sponsor the names of the ad-hoc employees including that of the petitioner. However, the respondents did not pay her pay and allowances as Research Assistant w.e.f. 01-10-2001 till 23-09-2005 despite repeated request being made by her. Being aggrieved by the inaction on the part of the respondents, the petitioner approached the Hon''ble Gauhati High Court by way of a writ petition being W.P. (C) No. 139 of 2009 which was disposed of on 14-09-2011 directing the respondents therein to pay the pay and allowances of the petitioner as Research Assistant in the Department of Fisheries, Government of Manipur for the period that she actually rendered her service after proper verification. The petitioner communicated the said judgment and order dated 14-09-2011 to the respondents along with a legal notice dated 26-09-2011 being sent by her advocate. To her shock and surprise, the Under Secretary (Fisheries), Government of Manipur issued an order dated 16-11-2011 stating that her pay and allowances for the period from 01-10-2001 to 23-09-2005 could not be acceded on the ground that she had not actually rendered her service during the said period and her signature was not found in the Attendance Registrar of the Fishery Research Centre. 3.2. Being aggrieved by the said order, the petitioner filed a writ petition being W.P. (C) No. 849 of 2011 which was disposed of by the Hon''ble Gauhati High Court on 29-08-2013 with the direction that the respondents therein should consider and dispose of the representation dated 24-11-2011 submitted by the petitioner within a period of six months and while disposing the said representation, the authorities would take into account the various orders passed by the Hon''ble Gauhati High Court including the order dated 14-11-2000 passed in W.P. (C) No. 1480 of 2000. In a purported compliance of the court''s order, the Under Secretary (Fishery), Government of Manipur issued an order dated 28-04-2014 stating that the petitioner was appointed against a purely ad-hoc vacancy arising out of the promotion of one Smt. A. Renubala Devi as Fishery Officer on ad-hoc basis and since Smt. A. Renubala Devi was reverted back to her substantive post, the service of the petitioner was not extended beyond 30-09-2001. Being aggrieved by the said order dated 28-04-2014, the instant writ petition has been filed on various grounds.
The stand as indicated in their affidavit filed on behalf of the State respondents is that the ad-hoc service of the petitioner was extended upto 30-09-2001 vide order dated 23-08-2005 and no further extension was made beyond 30-09-2001 as is evident from the certificate dated 05-04-2006. The letter dated 13-09-2006 was the estimated amount of salaries of the regular employees and the ad-hoc employment as requisitioned by the Government. So far as the petitioner is concerned, it is stated by the Department that there was no vacant post of Research Assistant for extension of the term of her ad-hoc appointment. As per the decision of the State Government vide O.M. dated 24-09-2005, the requisition was sent to the Employment Exchange, Manipur for sponsoring the names of the willing candidates for filling up one post of Fishery Inspector and since the petitioner was also eligible for consideration, the Department requested the Employment Exchange Officer to sponsor all five ad-hoc employees including the petitioner. However, the petitioner did not appear in the written test for the said post. As per the directive of the High Court dated 14-09-2011, the Department conducted an enquiry through the Fishery Officer (Research) whether the petitioner had actually rendered her service during the period from 01-10-2001 to 23-09-2005 and in response thereto, the Fishery Officer (Research) reported that the name of the petitioner was not there in the Attendance Registrar maintained in the Office of the Fishery Officer (Research) and no record for assigning her any duty as Research Assistant was available for the aforesaid period. In compliance with the order dated 14-11-2000 passed by the Hon''ble Gauhati High Court, the Under Secretary (Fishery), Government of Manipur issued the impugned order dated 28-04-2014 stating that the prayer of the petitioner for payment of pay and allowances for the said period was not entertained and accordingly, her representation was disposed of.
In the rejoinder affidavit filed by the petitioner, it has been stated that in terms of the order dated 14-11-2000 passed by the Hon''ble Gauhati High Court, she could not be ousted from her earlier service and although there was no any formal extension of her ad-hoc service, she was entitled to receive her salary since she had been discharging her duties as the Research Assistant. The reason as to why she did not appear for the post of Fishery Inspector was that there was a vacant post of the Research Assistant in the Department of Fisheries, Government of Manipur. Recently, a notification dated 22-08-2016 was issued by the Director of Fisheries inviting applications for appointment of various posts including two post of Research Assistant. In a writ petition being W.P. (C) No. 620 of 2016 filed by the petitioner, this Court vide its order dated 08-08-2016 directed the respondents therein to consider and dispose of the representation for regularisation of her ad-hoc service as had been done in the case of similarly situated persons.
It is unfortunate that this is the third round of litigation on the similar issue. The short issue that arise for consideration is to as to whether the petitioner is entitled to pay and allowance for the period from 01-10-2001 to 23-09-2005 or not. It is not in dispute nor can it be disputed that if the petitioner had really served as the Research Assistant during that period, she will definitely be entitled to her pay and allowance. It is not a short period of few months but a long period of four years for which the petitioner claimed that she had not been paid her pay and allowance. It may be noted that this court vide its order dated 29-08-2013 has directed the respondents therein to consider the representation dated 24-11-2011 submitted by the petitioner and in a purported compliance of the said order, the Under Secretary (Fishery) issued an order dated 28-04-2014 disposing of the said representation holding that after proper examination and taking into account all the factual positions referred to therein, the prayer of the petitioner could not be entertained. The grievance of the petitioner, in short, is that all the circumstances pertaining to her case including the order dated 14-11-2000, have not been properly considered and appreciated by the Department while disposing of the said representation dated 24-11-2011. On perusal of the said order impugned herein, the contention of the learned counsel appearing for the petitioner appears to be correct to some extent and the following circumstances have not been properly considered and appreciated: (a) On 14-11-2000 the Hon''ble Gauhati High Court while disposing of the writ petition being W.P. (C) No. 1480 of 2000, had directed that the petitioners therein including the present petitioner would continue in the post held by them until the posts were filled up regularly in accordance with the procedure laid down in the rules. There is no record to show that the State respondents had preferred any appeal against the said order and if that be so, the said order must have attained finality, the consequence of which ought to be that the petitioner would be allowed to continue in the post held by her;
(b) It is clearly stated in the letter dated 15-07-2005 addressed to the Secretary (Fishery) by the Director of Fisheries that while furnishing information for purpose of extension of the term of ad-hoc employee, it had been specifically stated that the ad-hoc employees could not be ousted from service by virtue of the court''s order despite non-extension of the term of their ad-hoc employment and that they had been posted at different places. Moreover, a certificate dated 22-03-2006 was issued by the Project Officer, Research to the effect that the petitioner was still in service since 07-01-1999 and her salary had not been paid with effect from 01-10-2001 due to non-extension of the post. It is further certified that she could not be ousted from service because of the court''s order;
(c) The Director of Fisheries vide its letter dated 13-09-2006 addressed to the Commissioner (Fishery) furnished information as regards the financial involvement including that of the petitioner, requiring fund for the arrear of salary upto 23-09-2005;
(d) The Deputy Secretary (Fishery), Government of Manipur vide its letter dated 27-12-2006 addressed to the Director of Fisheries, conveyed the approval of the Government to the extension of the term of ad-hoc appointment of the petitioner, Research Assistant for a period of six months with effect from 24-09-2005;
(e) The Hon''ble Gauhati High Court vide its judgment and order dated 14-09-2011 disposed of a writ petition being W.P. (C) No. 139 of 2009 directing that the petitioner be paid her pay and allowance for the period she actually rendered her service after proper verification. In a purported compliance of this judgment and order, the Under Secretary (Fishery) issued an order dated 16-11-2011 stating that the prayer for payment of her pay and allowance could not be acceded to on the report submitted by the Director of Fisheries;
(f) Being aggrieved by the said Government order dated 16-11-2001, the petitioner submitted her representation dated 24-11-2011 which was directed to be considered vide judgment and order dated 29-08-2013 passed by this court in W.P. (C) No. 849 of 2011. In a purported compliance of the said order dated 29-08-2013, the Under Secretary (Fishery) issued an order dated 28-04-2014 to the effect that her prayer for payment of pay and allowance was not entertained on the ground that her ad-hoc service was not extended for want of regular vacancy and she had not rendered any service from 01-10-2001 to 23-09-2005.
From the perusal of the impugned order, it is seen that the stand of the State Government is that the ad-hoc service of the petitioner was not extended and she had not rendered any service from 01-10-2001 to 23-09-2005 because her name was not there in the attendance register. In this regard, it may be noted that although the Hon''ble Guahti High Court vide its order dated 14-11-2000 directed that the petitioners therein including the present petitioner, would continue in the posts held by them until the posts were filled up regularly in accordance with the procedure laid down in the rules, the State Government in defiance of it did not issue any order extending the ad-hoc service of the petitioner, as a result the name of the petitioner might not have been entered in the attendant register. Had any order been issued by the State Government extending her ad-hoc service in terms of the said judgment and order dated 14-11-2000, there would have been no problem. Moreover, it is the bounden duty of the State Government to comply with the court''s order. The State Government cannot take advantage of its own mistake. Being conscious of all these circumstances, the Hon''ble Gauhati High Court appears to have passed the judgment and order dated 14-09-2011 directing that the petitioner be paid her pay and allowance for the period she actually rendered her service after proper verification. It is seen from this judgment and order dated 14-09-2011 that what was required to be verified by the State Government was not to see whether her name was there in the attendant register or not but was to see whether she had actually rendered any service, for which the employees who were posted at the place where she was being posted, were required to be examined. This exercise is required to be done because the letter dated 15-07-2005 of the Director of Fisheries and the certificate dated 22-03-2006 of the Project Officer (Research) have clearly shown that she was continuing in ad-hoc service but because of non-extension of her service, her pay and allowance could not be given. This is substantiated by the fact that the extension of the term of ad-hoc appointment of the petitioner as Research Assistant was granted for a period of six months with effect from 24-09-2005. If the stand of the State Government that her ad-hoc service was not extended at all for the period from 01-10-2001 to 23-09-2005 is accepted meaning thereby that she had ceased to be the ad-hoc employee during the said period, there was no question of her ad-hoc service being extended with effect from 24-09-2005 only. Having examined the aforesaid circumstances in totality, the only reason as to why the petitioner is being denied her pay and allowances for the said period, appears to be that no order extending her ad-hoc service was issued by the respondents, for no fault of her, even though the court''s order dated 14-11-2000 in her favour.
For the reason stated herein above, the instant writ petition is disposed of with the direction that the respondents shall hold an effective enquiry to find out whether the petitioner had actually served during the period from 01-10-2001 to 23-09- 2005 or not within a period two months from the date of receipt of a copy of this judgment and order, after giving her an opportunity of being heard, keeping in mind the circumstances as detailed in para 6 above and in order to find out the truth, the employees of the Department of fisheries who were posted at the place where the petitioner was being posted during the said period, will have to be examined by the respondents. In the event of the petitioner being found, in the enquiry, to have served during the said period, she should be paid her pay and allowance within a reasonable time.