2022 Supreme(Manipur) 48

IN THE HIGH COURT OF MANIPUR AT IMPHAL
Sanjay Kumar, Lanusungkum Jamir, JJ.
State Of Manipur - Appellant
Versus
Yaikhom Joykumar Singh & Ors. - Respondents
Writ Appeal No. 34 of 2021
Decided On : 18-04-2022

IMPORTANT POINT
An appointment made on the basis of administrative exigency and not vitiated by faults such as nepotism, bias, or malafides, could be regularized. Regularization cannot be a mode of recruitment, and an illegal appointment cannot be regularized. It is only in exceptional cases that the Court may consider it appropriate to issue mandatory directions.

Headnote:

Unemployment - Regularization of Services - [State of Manipur] - [Constitution Bench had held that irregular appointments of duly qualified persons against duly sanctioned vacant posts, not being illegal appointments, may be regularized, as a one-time measure, by the Union of India, the State Governments and their instrumentalities, provided such appointees worked for 10 years or more without the protection of orders of Courts or Tribunals. The Bench also stated that there should be no further bypassing of the Constitutional requirement and regularizing or making permanent, those not duly appointed as per the Constitutional scheme. The Supreme Court held that Uma Devi (supra) is not an authority for the proposition that the executive or the legislature cannot frame a scheme for regularization. It was pointed out that an irregular or temporary appointment is not illegal if made on the basis of administrative exigency and the same would be vitiated only if the exercise was undertaken without any exigency in administration and/or where the procedure adopted was violative of Articles 14 and 16 of the Constitution and/or where the recruitment process was overridden by the vice of nepotism, bias or malafides. It was further held that if the appointment was not vitiated due to the above faults and if it is not an illegal appointment but only an irregular appointment, it could be regularized by framing a scheme. It is the sole prerogative of the Government to frame a scheme for regularization and it is only in exceptional cases that the Court would consider it proper to issue appropriate mandatory directions. Even if similarly placed persons were ordered to be absorbed, it cannot become the foundation for perpetuating further illegality, if done erroneously. It was clarified that if an appointment is made illegally or irregularly, the same cannot be the basis for further appointments, as an erroneous decision cannot be permitted to perpetuate errors to the detriment of the general welfare of the public or a considerable section thereof. Uma Devi (supra) permitted a one-time exception for regularizing services of an employee who had been irregularly appointed and not illegally. Regularization cannot be said to be a mode of recruitment and if the appointment itself is in infraction of the Rules or in violation of Constitutional provisions, such an illegal appointment cannot be regularized, as ratification or regularization is possible of an act which is within the power and province of the authority but there is some non-compliance with procedure or manner which does not go to the root of the appointment. In the case on hand, consideration of respondent No.1's claim for regularization and the consequential order dated 13.07.2018 stemmed out of the direction of this Court in W.P(C) No.23 of 2017. The said direction was allowed to attain finality by the authorities and, therefore, they were bound to give effect to it in true letter and spirit. The direction was essentially to consider the case of respondent No.1 for regularization in the light of the order passed in W.P(C) No.220 of 2016, as respondent No.1 drew parity with Ksh. Ibopishak Singh and claimed that he was identically situated. The State therefore had to examine that aspect in a fair and just manner. The appointment of respondent No.1 is not 'illegal' in terms of the essentials laid down in Uma Devi (supra). His initial appointment in the year 1998 was against a duly sanctioned vacancy, which arose upon retirement of the incumbent. Administrative exigency therefore required his engagement. It is not the case of the State that he did not possess the requisite qualification, in as much as he participated in the selection process when a post was notified a few years later. There is no indication of his having been appointed due to nepotism, bias or malafides. He continued in service since 1998 without the protection of any order from a Court and is still working as on date. In such circumstances, this Court finds no grounds whatsoever to distinguish his case from that of Ksh. Ibopishak Singh. The direction of the learned Judge to treat him on par with Ksh. Ibopishak Singh and to regularize his services, therefore, does not call for any interference. As pointed out by the Supreme Court in All India Trade Union Congress and others (supra), it is only in an exceptional case that the Court may consider it appropriate to issue mandatory directions. In the case on hand, given the flagrant discrimination shown by the authorities in dealing with two identically situated employees who sought regularization of their services, the positive direction of the learned Judge was not only desirable, but very much required.

Fact of the Case:

The State of Manipur appealed against a judgment directing the authorities to regularize the services of a Peon/Grade-IV in the office of the Sub-Divisional Officer, Bishnupur, against an existing vacancy. The respondent was initially engaged as a Peon in 1998 and sought regularization of his services after his engagement was extended multiple times. The Deputy Secretary (Revenue), Government of Manipur, rejected his claim for regularization, leading to the writ petition.

Finding of the Court:

The Court found that the respondent's initial appointment was against a duly sanctioned vacancy, and he continued in service without the protection of any court order. The Court held that the appointment was not 'illegal' and the respondent's case for regularization was not distinguishable from a similar case that was regularized. The Court dismissed the writ appeal and ordered the respondent's regularization in service with retrospective effect.

Issues: Regularization of services, distinction between 'illegal' and 'irregular' appointments, administrative exigency, discrimination in dealing with identically situated employees seeking regularization.

Ratio Decidendi: The Court held that an appointment made on the basis of administrative exigency and not vitiated by faults such as nepotism, bias, or malafides, could be regularized. The Court emphasized that regularization cannot be a mode of recruitment and that an illegal appointment cannot be regularized. The Court also noted that it is only in exceptional cases that the Court may consider it appropriate to issue mandatory directions.

Final Decision: The writ appeal was dismissed, and the respondent was ordered to be regularized in service with retrospective effect.