Sanatombahaobam vs State Of Manipur

[1] Heard learned counsel for the petitioner; learned Government Advocate for respondent No.1 and learned counsel for the respondents No.2 & 3.

[2] W.P.(C) No.371 of 2018 has been filed by the petitioner seeking to quashed the order dated 13.4.2018 passed by third respondent refusing to regularize the contract service of the petitioner in terms of the Recruitment Rules and to direct the respondents to consider the case of the petitioner for regularization of his contract appointment in terms of the order dated 12.4.2017 passed by this Court in WP(C) No.254 of 2017.

[3] W.P.(C) No. 357 of 2018 has been filed by the petitioner seeking to quash the order dated 16.4.2018 passed by the third respondent terminating the contract appointment of the petitioner before the expiry of the period of contract appointment and also sought a mandamus directing the respondents to allow the petitioner to continue as Under Secretary, Council of Higher secondary Education (COHSEM), Manipur, Imphal.

[4] According to the petitioner, he was serving as Under Secretary of the council on contract basis and his term of contract appointment was extended from time to time. Since similarly situated person have been regularized, the petitioner has also made a representation for regularization. Since the respondents failed to consider the case of the petitioner for such regularization, the petitioner has filed W.P.(C) No.254 of 2017 praying to grant similar relief as has been granted to the other contract employees of the Council. The said writ petition came to be disposed of by this Court on 12.4.2017 with a direction to the respondents to consider the case of the petitioner. Since the respondents failed to implement the orders of this Court passed in the said writ petition, the petitioner has filed Contempt Case No.149 of 2017. During pendency of the contempt case and before expiry of the period of the contract, the third respondent issued an order dated 13.4.2018 that the post held by the petitioner shall be filled up by direct recruitment by making public advertisement.

[5] According to the petitioner, without making any enquiry or an opportunity, the third respondent issued the order dated 16.4.2018 terminating the contract appointment of the petitioner. The petitioner has challenged those two orders in these writ petitions.

[6] On the other hand, the case of the respondents is that the initial appointment of the petitioner on contract basis itself is void and without approval of the Council. It is further stated that the contract period of the petitioner has already expired on 05.5.2018 and he is no longer in service in the third respondent Council. The appointment or the regularization of the other staff in the third respondent are not in question in the instant petitions and as such, the appointment/regularization of other staff in the third respondent has nothing to do with the present case. According to the respondents, the order dated 13.4.2018 was issued pursuant to the order of this Court and as per the relevant rules. Since the petitioner is no longer in service, W.P(C) No.357 of 2018 has become infructuous.

[7] The third respondent issued the impugned order dated 13.4.2018 to the effect that the post held by the petitioner shall be filled up by direct recruitment by making public advertisement. Similarly, the third respondent issued the order dated 16.4.2018 to the effect that the initial appointment of the petitioner was without following due process for appointment on contract basis and therefore, terminated the contract appointment of the petitioner.

[8] According to the petitioner since no eligible and qualified Section Officers or Computer Programmer serving in the third respondent Council for promotion to the post of Under Secretary, the Council, in exercise of powers conferred by Section 13(xxi) of the Manipur Higher Secondary Education Act, 1992 and after following due process, took a resolution in its meeting held on 07.1.2014 recommended the petitioner for appointment as Under Secretary on contract basis. Pursuant to the resolution No.1.4 of the Council dated 7.1.2014, the petitioner was appointed as Under Secretary on contract basis initially for a period of one year.

[9] It appears that the contract appointment of the petitioner was assailed by the Assistant Section Officers of the third respondent Council by filing W.P.(C) No. 1051 of 2016. By the order dated 24.2.2017, the said writ petition came to be disposed of with the following order:

"5. Heard the learned counsel for the parties and considered the materials on record. As regard the relief claimed in the writ petition for quashing the appointment order dated 08.01.2014 of the respondent No.4 at Annexure A/5 to the writ petition, this Court is of the view that no order can be passed for quashing the same now as the term of appointment is already over. The respondent No.4 was appointed for a period of 1(one) year vide order dated 01.08.2014 and his term of appointment has already expired, and as such, the question of setting aside an expired order dated 08.01.2014 does not arise at this stage. This relief claimed has become infructuous now. The other relief claimed is for a direction to the official respondents not to regularise the service of respondent No.4 to the post of Under Secretary, COHSEM which the petitioners claim the respondent No.4 is seeking in terms of recruitment Rules, which also provides for filling up the post by deputation/direct recruitment, in the event of failure to make appointment by promotion. A copy of the recruitment rules is annexed as Annexure A/4 to the writ petition. It has however, stated that the recruitment rules for the post of Under Secretary are yet to be finalized.

"6. This Court is not entering into the issue as to whether the said Recruitment Rules at Annexure-A/4 have been approved or not, but it goes without saying that as far as promotion is concerned, only such persons in the feeder posts who have fulfilled the requisite eligibility conditions can be considered for promotion. Similarly, if the Recruitment Rules provide for direct recruitment or deputation as the case may be, only such persons who are eligible can be appointed. However, as regards direct recruitment it is well settled that if any direct recruitment is to be made, normally, it should be made by way of open competition which would entail public advertisement, holding of certain recruitment process to adjudge the suitability of such candidates. Therefore, this Court would hold that if any direct recruitment is to be made to the post of Under Secretary, the same ought to be made by following the aforesaid process and also as per the requirements in the relevant Recruitment Rules.

Accordingly, the present writ petition is disposed of with the above observation. Interim order, if any, stands merged with this final order.

[10] Interestingly, when the appointment of the petitioner was question, the period of contract service of the petitioner was extended from to time by issuing orders by the respondent authorities and the last order of extension was for a period of six months with effect from 06.11.2017. In the meantime, many contract employees service in the third respondent Council and who are similarly situated as the petitioner approached this Court by filing writ petitions seeking regularization of their contract service in terms of the provisions of the Recruitment Rules. W.P.(C) No. 296 of 2015 is one of the cases, wherein, by the order dated 29.5.2015, this Court observed as under:

"6. Considering the facts and circumstances of the present case and keeping in mind the provisions of the recruitment rules as regards the method for direct recruitment, this court is of the view that the present petition can be disposed of with the direction for consideration of the petitioner's case.

With the above observations, the present writ petition is disposed of with the direct that the Respondent Nos. 2 and 3 shall consider the case of the petitioner as a special case for regularization/appointment on regular basis in terms of the provisions of the recruitment rules and issue appropriate order, thereafter, within a period of six months from the date of receipt of a certified copy of this judgment and order."

[11] It also appears that pursuant to the aforesaid order of this Court, the respondents have considered the cases of similarly situated persons as a special case in terms of the provisions of the relevant Recruitment Rules and regularized their services by issuing necessary appointment orders and one of the orders could be seen from Annexure-A/6 dated 31.12.2016 issued by the third respondent. Since the respondents have failed to consider the case of the petitioner, he has filed W.P. (C) No. 254 of 2017 praying for granting similar relief as has been granted to the other contract employees of the third respondent Council.

[12] By the order dated 12.4.2017, W.P. (C) No. 254 of 2017 came to be disposed of in the following line:

"Heard Mr. A. Bimol, learned counsel for the petitioner.

Heard also Mr. N. Kumarjit, learned Sr. Council assisted by Mr. Jacqueson, learned counsel for the Respondents nos. 2 and 3 as well as Mr. H. Samarjit, learned G.A. for the Respondent no. 1.

When this matter was taken up for motion, it has been submitted by Mr. Bimol that the present petition can be disposed of in terms of the earlier order passed by this Court in W.P. (C) No. 300 of 2015, W.P. (C) No. 251 of 2015, W.P. (C) No. 322 of 2015, W.P. (C) No. 288 of 2015 which is also agreed by Mr. Kumarjit, learned Sr. Counsel appearing for the Respondent No. 2, stating that the case of the petitioner can be also considered in the similar lines as directed by this Court in the aforesaid writ petitions.

Accordingly, the present writ petition is disposed of with similar direction that the Respondents no. 2 and 3 shall consider the case of the petitioner for regularization/appointment on regular basis in terms of the provisions of the relevant recruitment rules and issue appropriate order, thereafter, within a period of 4 (four) Months from the date of a certified copy of this order.

Petition stands disposed of accordingly."

[13] It is seen that when the respondents failed to comply with the order of this Court, the petitioner has filed Contempt Case No.149 of 2017 and during pendency of the Contempt Case and before expiry of the period of contract appointment, the Joint Director wrote a letter dated 09.4.2018 to the third respondent to terminate the contract engagement of the petitioner on the ground that his initial appointment as Under Secretary was made without authority and without following due process.

[14] The aforesaid decision taken by the Joint Director followed with the issuance of termination order dated 16.04.2018 issued by the third respondent is contrary to the stand earlier taken by them in the earlier round of litigation, wherein the Senior Counsel appearing for the Council agreed to consider the case of the petitioner in similar lines as directed by this Court in W.P.(C) No. 300 of 2015 etc. batch. W.P.(C) No. 300 of 2015 has been disposed of by this court in terms of the order dated 29.5.2017 passed in W.P(C) No. 296 of 2015.

[15] As stated supra, in W.P.(C) No. 296 of 2015, this Court directed the Council to regularise the services of the petitioner therein as a special case for regularization/appointment on regular basis. The said order has not been challenged by the Council and the same attained finality. It is admitted by the Council that pursuant to the orders passed by this Court in W.P(C) No. 296 of 2015 etc. batch, the similarly situated persons were regularized.

[16] Earlier when the initial appointment of the petitioner was challenged by the Sections Officers and not to regularise the services of the petitioner, this Court held that since the period of contract expired, the claim made by the Sections Officers has become infructuous. During 2015, the services of the petitioner was extended and at that time nobody objected the same. If really the appointment on contract is not feasible and the petitioner is not eligible to be appointed to the post of Under Secretary, the respondents ought not to have appointed the petitioner to the said post.

[17] It is apposite to mention that having faced with the contempt proceedings, the third respondent hurriedly passed the impugned orders, which are contrary to the earlier stand taken by the third respondent and also without affording sufficient opportunity to the petitioner. The law is Settled that any order passed behind the back and without affording opportunity to the party concerned is hit by the principles of natural justice.

[18] On a perusal of the impugned order, this Court finds that before passing the same, the petitioner was not heard and therefore reasoning given by the Council for disengagement of the petitioner in the impugned order is unacceptable. Further, the initial appointment of the petitioner was made without authority and without following due process stated by the Council is also unacceptable for the reason that having taken note of the suitability of the petitioner and appointed on contract as Under Secretary, the respondents cannot later on contend that his initial appointment is questionable. If the initial appointment is questionable, why the Council extended the services of the petitioner from time to time. For that, no convincing reason forthcoming from the respondents.

[19] For all the aforesaid reasons, it is just and necessary that the impugned order liable to be set aside.

[20] In the results,

a) both the writ petitions are allowed.

b) the impugned orders dated 13.4.2018 and 16.4.2018 passed by the third respondent are quashed.

c) the respondents are directed to regularise the petitioner's service as Under Secretary, Council of Higher Secondary Education (COHSEM) Manipur, Imphal in terms of the order dated 12.4.2017 passed by the Court in WP(C) No.254 of 2017.

d) the said exercise shall be done within a period of 3(three) months from the date of receipt of this order till such time the respondents are directed to allow the petitioner to continue as Under Secretary, Council of Higher Secondary Education(COHSEM) Manipur, Imphal.