KABORAMBAM SANDEEP v. Shri N. Apabi Singh

Mr. Sh. Yangya, GA Mr. Kh. Tarunkumar, Sr. Adv.

08.11.2023 JUDGMENT AND ORDER (ORAL) Siddharth Mridul (C.J.),

1. These two writ appeals raise common issues of fact and law, and are resultantly being disposed of by way of this common order. WA No. 69 of 2023 and WA No. 71 of 2023 P a g e | 3

2. In sum and substance, the State of Manipur assails the common judgment and order dated 18th July, 2022 rendered by the learned Single Judge in Writ Petition (C) No. 2 of 2017 and Writ Petition (C) No. 61 of 2019; whereby they were directed, to regularize the services of the private respondents herein, who were employed as Drivers in the Department of Veterinary & Animal Husbandry, Government of Manipur; on contracts extended expost facto from time to time commencing from the year 2010 onwards.

3. The facts, as are necessary for the determination of these connected appeals are briefly elaborated as follows : i) the common case of the respondents herein is that vide a Notification dated 7th August, 2010, eight posts of Drivers to be engaged on contract basis was issued by the Directorate of Veterinary & Animal Husbandry Services, Government of Manipur (in short “the Directorate”); ii) on the 8th September, 2010, the respondents were initially engaged on contract basis as Drivers, pursuant the recommendation made by Screening Committee, constituted the said purpose, by the Directorate. On the 9th September, WA No. 69 of 2023 and WA No. 71 of 2023 P a g e | 4 2010, they were all directed to be attached with the office of the Central Dairy Plant, Porompat.

4. It is an admitted case before us that, the services of the respondents were extended on contractual basis on similar terms till the 29.11.2016. It was the stated case of the private respondents that, on the 29th June, 2015, contractual services of 6 (six) other incumbents serving the subject department, were duly regularized, pursuant to the policy decision taken in this behalf by the Cabinet of the Government of Manipur, with the concurrence of the Department of Personnel and Finance.

5. In this regard, it is observed that a representation dated the 3rd September, 2016, was submitted to the Directorate by the General Secretary of All Manipur Veterinary & Animal Husbandry Contractual Employees’ Association seeking similar regularization for all contractual employees serving in the said department.

6. On the 21st September, 2016, the Government further approved an ex post facto extension of the contractual services of the private respondents w.e.f. 02.03.2015 to 29.02.2016.

7. However, on the 21st September, 2016, the Directorate simultaneously issued a Notification, for filling up of 13 (thirteen) posts of drivers on regular basis, from open competition. It would WA No. 69 of 2023 and WA No. 71 of 2023 P a g e | 5 be pertinent to observe that similar Notifications were issued by the Directorate for filling up of various other posts in the Directorate on regular basis from open competition.

8. It is an admitted position that two other incumbents, aggrieved by the said Notification dated 21.09.2016 instituted WP(C) No. 794 of 2016 wherein this Court was pleased to pass an interim order, directing the Government not to make any appointment against the advertised posts; held by the petitioners therein; till the disposal of the said writ petition instituted by them.

9. The private respondents who asseverate to have been serving in the same Department as drivers on contract basis, for a long period of time, approached this Court by way of Writ Petition (C) No. 794 of 2016 inter alia impugning the said Notification dated 21st September, 2016, inviting applications for filling up of 13 (thirteen) posts from the open competition, as well as, seeking a direction to the appellants herein to regularize their services in the posts of drivers.

10. It is the unrebutted case of the private respondents that vide the decision dated 23rd December, 2016, the concerned Director issued an order regularizing 14 (fourteen) other incumbents, who were serving as LDC-cum-Computer Assistant in the same WA No. 69 of 2023 and WA No. 71 of 2023 P a g e | 6 Department; hitherto, on contract basis. It was furthermore their unrebutted assertion that on the 22nd April, 2017, the concerned Director had also issued an order whereby three incumbents serving as Milk Recorders in the same Department on contract basis, who had instituted the said Writ Petition (C) No. 794 of 2016 (supra), were regularized in their respective posts in the time scale of pay.

11. It was vehemently canvassed on behalf of the private respondents in the connected writ petitions that the aforesaid 26 (twenty-six) incumbents whose services were regularized by the Director vide the said decisions dated the 23rd December, 2016 and 22nd April, 2017 respectively, are axiomatically similarly situated as them and that consequently, the policy decision of the Government to regularize the formers’ services ought to be extended to enure to the Respondent’s benefit as well.

12. This Court vide the interim order rendered in Writ Petition (C) No. 794 of 2016 as aforementioned, had been pleased to direct the official Directorate/Government to keep four posts, amongst the advertised 13 (thirteen) posts, unfilled during the pendency of the subject writ petition. WA No. 69 of 2023 and WA No. 71 of 2023 P a g e | 7

13. The learned Single Judge, having heard the learned counsel appearing on behalf of the parties and considered the affidavit-in- opposition filed on behalf of the writ appellants, rendered the impugned order dated the 18th July, 2022, allowing the writ petitions and further directing the Writ Appellants as follows : “46. In the result, (i) W.P.(C) Nos.794 of 2016 is dismissed and W.P.(C) Nos. 2 of 2017 and 61 of 2019 are disposed of. (ii) The official respondents are directed to regularize the services of the petitioners as has been done in respect of other similarly situated incumbents. (iii) The said exercise is directed to be completed within a period of three months from the date of receipt of a copy of this order. (iv) In view of 7 posts of drivers kept vacant (4 posts pursuant to the order of this Court in W.P.(C) No.794 of 2016 and 3 posts by the official respondents themselves), respondent authorities are directed consider the same in the case of the WA No. 69 of 2023 and WA No. 71 of 2023 petitioners in W.P.(C) Nos.2 of 2017 and 61 P a g e | 8 of 2019. (v) No costs.”

14. On behalf of the writ appellants, the following issues have been canvassed to assail the impugned common order dated 18th July, 2022 :- i) whether by virtue of the contract engagement as drivers, for limited period against no sanctioned posts and without following the recruitment process prescribed under the existing rules; the writ petitioners had any legally vested right to claim regularization? ii) Whether the private respondents were not estopped from claiming regularization to the post of drivers, in view of the express terms and conditions of the contract of service entered into between them and the department?

15. In so far as the first issue of law articulated hereinabove is concerned, our attention was invited to the judicial precedents referred to hereinafter.

16. In so far as the second issue herein is concerned, our attention was invited to the contract of service entered into between the department and the private respondents commencing with the WA No. 69 of 2023 and WA No. 71 of 2023 first contract dated 9th September, 2010 and in particular, conditions Nos. 5 and 6 thereof which stipulate as follows : P a g e | 9 “5. The above parties agree that the service rules presently governing the State Government employees shall not apply to the 2nd party;

6. The 2nd Party shall have no right to claim or shall not make any claim regular appointment/absorption on the basis of his/her engagement for the implementation of the Animal Health & Dairying (Name of Scheme/Work). His/her service automatically at the end of the contract period unless terminated earlier under clause 10.”

17. In this behalf, it was therefore, urged that the private respondents had not been engaged against sanctioned posts and had expressly waived their right to seek regularization against the post of drivers in clear and unequivocal terms. It would be further urged that in view thereof, it would not be open to the private respondents to assert any right seeking regularization in the subject post without participating in the recruitment process in pursuance to the impugned Notification dated 21st September, 2016 inviting applications for the same. WA No. 69 of 2023 and WA No. 71 of 2023 P a g e | 10

18. In order to buttress the submissions made on behalf of the writ appellants, our attention was invited to the decision of the Constitution Bench in the Secretary, State of Karnataka and Others Versus Umadevi (3) and Others reported in (2006) 4 SCC 1 and in particular to paragraphs No. 52, 53 and 54 thereof, which are extracted in extenso herein below, the sake of completeness :- “52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College34. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since employees cannot show that they have an enforceable WA No. 69 of 2023 and WA No. 71 of 2023 P a g e | 11 legal right to be permanently absorbed or that the State has a legal duty to make them permanent.

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa11, R.N. Nanjundappa12 and B.N. Nagarajan8 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making WA No. 69 of 2023 and WA No. 71 of 2023 P a g e | 12 permanent, those not duly appointed as per the constitutional scheme.

54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.” 8 11 12 34 (1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937 (1967) 1 SCR 128 : AIR 1967 SC 1071 (1972) 1 SCC 409 : (1972) 2 SCR 799 1962 Supp (2) SCR 144 : AIR 1962 SC 1210

19. In simple terms, it is the case of the writ appellants that contractual employees whose services have not been engaged against duly sanctioned posts are not entitled to seek regularization since their appointments are temporary and have been made without following the due recruitment process in accordance with the subject recruitment rules.

20. At this juncture, it has been urged on behalf of the private respondents that is not open to the writ appellants to raise that the issue that, their engagements on contractual basis were not against sanctioned posts; in the present appeals for the first time, since the said assertion had not been articulated on their behalf before the learned Single Judge. WA No. 69 of 2023 and WA No. 71 of 2023 P a g e | 13

21. In this behalf, our attention was invited to the following decisions :- i) (2011) 6 SCC 199 (paragraphs No. 19 and 20) reported in Abdul Khader (dead) by Lrs. v. Tarabai and Others : “19. We are in complete agreement with the High Court that having failed to adduce any evidence before the Tribunal, which could enable it to invoke the prohibition contained in Section 79-A of the 1961 Act and having failed to raise this plea before the learned Single Judge, the appellants were not entitled to resurrect the same before the Division Bench. In any case, in the absence of any tangible evidence, the Tribunal or for that reason the High Court could not have denied occupancy rights to Basavannappa or his widow by relying upon Section 79-A of the 1961 Act.

20. The argument that Basavannappa was not entitled to occupancy rights in respect of service inam lands, which were governed by the Hyderabad Act, 1955 merits rejection because no such plea was raised either before the Tribunal or the High Court. We have carefully scrutinised the pleadings of the writ petition filed by Abdul Khader before the High Court and the writ appeals filed by his legal representatives and find that neither Abdul Khader nor the appellants challenged the order of the Tribunal on the ground that occupancy rights cannot be claimed in respect of the service inam lands, which are governed by the Hyderabad Act, 1955. The counsel, who appeared on behalf of the appellants and their predecessor before WA No. 69 of 2023 and WA No. 71 of 2023 P a g e | 14 the High Court, did not raise any such argument. Therefore, there is no tangible justification to allow the appellants to raise a new plea for the first time, the determination of which would require detailed investigation into the issue of facts.” ii) AIR 1957 SC 912 reported in State of U.P. v. Manbodhan Lal Srivastava, wherein in para 11, the Hon’ble Supreme Court held as follows :- “11. An examination of the terms of Article 320 shows that the word “shall” appears in almost every paragraph and every clause or sub-clause of that article. If it were held that the provisions of Article 320(3)(c) are mandatory in terms, the other clauses or sub-clauses of that article, will have to be equally held to be mandatory. If they are so held, any appointments made to the public services of the Union or a State, without observing strictly, the terms of these sub-clauses in clause (3) of Article 320, would adversely affect the person so appointed to a public service, without any fault on his part and without his having any say in the matter. This result could not have been contemplated by the makers of the Constitution. Hence, the use of the word “shall” in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, WA No. 69 of 2023 and WA No. 71 of 2023 P a g e | 15 would be invalid. On the other hand, it is not always correct to say that where the word “may” has been used, the statute is only permissive or directory in the sense that non-compliance with provisions will not render the proceeding invalid. In that connection, the following quotation from Crawford on Statutory Construction — Article 261 at p. 516, is pertinent: “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other….”

22. In this regard, being mindful of judicial precedents and having considered the rival submissions, we opine that, legal issues can be articulated by the parties to the lis at any stage of the proceedings, so long as the facts are not disputed.

23. It was then vehemently urged on behalf of the private respondents on the legal issue that arises for consideration that; in relation to the policy decisions taken by the statutory authorities, it WA No. 69 of 2023 and WA No. 71 of 2023 P a g e | 16 is imperative to consider the reasonableness and non-arbitrariness in executive action. In other words, it was urged that although it is open to the Government to take or not to take a policy decision qua regularization of its employees, however, once a decision has been taken to regularize some employees, it is not open to them to exclude other employees belonging to the same department except by grossly violating the express mandate of Article 14 of the Constitution of India.

24. In order to buttress their contention as aforestated, our attention has been invited to the following decisions :- 1) U.P. State Electricity Board –Versus- Pooran Chandra Pandey and Others reported in (2007) 11 SCC 92; 2) John Vallamattom and Another –Versus- Union of India reported in (2003) 6 SCC 611; 3) State of Haryana and Others –Versus- Gurcharan Singh and Others reported in (2004) 12 SCC 540; 4) Noida Entrepreneurs Association –Versus- Noida and Others reported in (2011) 6 SCC 508. WA No. 69 of 2023 and WA No. 71 of 2023 P a g e | 17

25. In (2007) 11 SCC 92 in the case of U.P. State Electricity Board Vs. Pooran Chandra Pandey and Others, the Hon’ble Supreme Court held as follows :- “11. Learned counsel for the appellant has relied upon the decision of this Court in Secy., State of Karnataka v. Umadevi (3)1 and has urged that no direction for regularisation can be given by the Court. In our opinion, the decision in Umadevi (3) case1 is clearly distinguishable. The said decision cannot be applied to a case where regularisation has been sought for in pursuance of Article 14 of the Constitution.

16. We are constrained to refer to the above decisions and principles contained therein because we find that often Umadevi (3) case1 is being applied by courts mechanically as if it were a Euclid’s formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University6 and Bharat Petroleum Corpn. Ltd.7 a little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. Hence, in our opinion, Umadevi (3) case1 cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Umadevi (3) case1 inapplicable to the facts of that case.

17. ...........

18. We may further point out that a seven-Judge Bench decision of this Court in Maneka Gandhi v. Union of India12 has held that reasonableness and non- WA No. 69 of 2023 and WA No. 71 of 2023 P a g e | 18 arbitrariness is part of Article 14 of the Constitution. It follows that the Government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhi case12 is a decision of a seven-Judge Bench, whereas Umadevi (3) case1 is a decision of a five-Judge Bench of this Court. It is well settled that a smaller Bench decision cannot override a larger Bench decision of the court. No doubt, Maneka Gandhi case12 does not specifically deal with the question of regularisation of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application.

19. In the present case many of the writ petitioners have been working from 1985 i.e. they have put in about 22 years’ service and it will surely not be reasonable if their claim for regularisation is denied even after such a long period of service. Hence apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness employees who have put in such a long service are denied the benefit of regularisation and are made to face the same selection which fresh recruits have to face.” 1 6 7 (2006) 4 SCC 1 : 2006 SCC (L&S) 753 (2003) 2 SCC 111