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2005 DIGILAW 819 (GAU)

Julius L. R. Marak v. State of Meghalaya

2005-12-05

ANIMA HAZARIKA

body2005
JUDGMENT Anima Hazarika, J. 1. By way of filing the instant writ petition, mandamus has been sought for, to promote the Petitioner in the light of "The Finance (Pay Revision)" Department vide notification Memo No. F(PR)-150/98/7 dated 21.12.98 and under Rule 22 and 23 of "the Meghalaya Civil Service Rule 1975" to the next higher cadre post of the Curator, in the Meghalaya State Museum, Shillong, under the Arts and Culture department, Shillong, with retrospective effect i.e. from 1st January, 2000. 2. In order to determine the facts pleaded and established and the relief sought for, the following facts are reproduced below; The Petitioner was appointed as Museologist at Meghalaya State Museum, Shillong against a permanent vacant post, on the recommendation of Meghalaya Public Service Commission. The Petitioner duly joined as Muselogist at Meghalaya State Museum, Shillong under the Direcatorate of Public Instruction. Meghalaya, Shillong on 30.6.1984 and has been discharging his duty as such till date. The post of the Petitioner was duly confirmed and permanently retained in the year 1995, which was communicated vide letter No. MAC 63/93/PL/5 dated, 8.10.1995 and notified vide Memo No., MAC 154/90/72-A dated 31.07.2002. 3. The Department of Arts and Culture, where the Petitioner is serving as Museologist, was under the Education Department. The Department of Arts and Culture, was bifurcated from the parent Department of Education with effect from 01.08.1998 and as such it has become the Department of Arts and Culture since then, having no link and connection with the Education Department. 4. One post of curator has been created since 1975 vide Memo No. EG/CP/1/74/4 dated 27.2.1975, permanent retention of which was notified vide, Memo No. MAC-56/98/41 dated 27.9.2001. The post of Curator is a Gazetted post. The said sanction for permanent retention of the temporary post of Curator was issued with the concurrence of the Finance (EC. II) Department vide their letter No. 1/D-No FC.II. 112/2001 date, 12.9.2001. The Petitioner’s case is that, the said post of Curator has been lying vacant since 1975, which is a Promotional Cadre post, from the post of Museologist, but the said post has not been filled up till date though the Petitioner is qualified and eligible to be promoted to the said post. 5. 112/2001 date, 12.9.2001. The Petitioner’s case is that, the said post of Curator has been lying vacant since 1975, which is a Promotional Cadre post, from the post of Museologist, but the said post has not been filled up till date though the Petitioner is qualified and eligible to be promoted to the said post. 5. It is submitted on behalf of the Petitioner, that the Petitioner had undergone various training, pertaining to State Museum, Shillong, sponsored by National Museum, New Delhi (Department of Culture), Government of India, short term training course in Muscology, held at the National Museum, New Delhi in the session 1984-1985 and in National Research Laboratory for conservation of Cultural Property, Lucknow, for conservation and preservation maintenance of Museum Materials during the year 1996. The Petitioner was also conferred with State award for his book "Serejing Aro Walgan", which was placed first (Drama) among the books published during the year 1988-89 for the best literature in garo language. The Petitioner has also been conferred the degree of Doctor of Philosophy (Ph.D.) in the year 1982 for his thesis "the Garo Customary Laws and Practices" (Sociological study) and thus he is duly qualified and eligible to be promoted to the said post of Curator, submitted by the learned Counsel appearing on behalf of the Petitioner. The Petitioner has submitted several representations before the appropriate authority on 20.8.86, 30.8.93, 28.8.97, 4.8.98, 20.5.99, 8.5.2001 and on 26.4.02 (Annexures XA, XB, XC, XD, XE, XF and XG respectively), requesting therein to consider his case for promotion to the next higher cadre post as he has completed more than 18 years of service in the same post of Museologist, without any blemish. But the said representations have not yet been disposed of by the authority nor any order of promotion have been passed considering the prayer so made in the representations. Thus, as no action was taken by the authority for promoting the Petitioner to the next higher grade/post, though he is qualified and eligible in all respect for the same, he had no other alternative, but to file this instant application, seeking a writ of mandamus for a direction to the authority to promote him to the post of Curator, as he is eligible for the same long back. 6. Heard Mr. AH Hazarika, assisted by Miss A. Begum, learned Counsel for the Petitioner and Mr. 6. Heard Mr. AH Hazarika, assisted by Miss A. Begum, learned Counsel for the Petitioner and Mr. MF Qureshi, learned state counsel. 7. While advancing the argument on behalf of the Petitioner, Mr. Hazarika, has placed reliance the averments made in the writ petition alongwith the Annexures appended thereto as well as the affidavit-in-opposition filed by the Government and has drawn the attention of the Court to the government resolution on the recommendations of the 3rd Meghalaya Pay Commission, wherein in the Head of Art and culture Department it has been resolved as follows: Government have decided that the recommendation of the commission at Para 10.6.3 should be brought about by keeping in view the functional aspects of each stream/wing Government have also decided that pending finalisation of the service rules, the senior level posts which are lying vacant should be filled up by promotion from the eligible officers. (B) Curator, State Museum/Editor state Gazetteers: The Revised scale of Rs. 8750 - 13,100/- corresponding to the existing scale on pay will apply to the posts. 8. In the Finance (Pay Revision) Department Pay Schedule 1997, vide letter No. F(PR)-98/97/65 dated 21.2.2000 it is mentioned/directing, particularly Art and Culture Department Shillong, to the following effect: The Following are the few Departments having no middle level pay scales and the officers are promoted irrespective of having service rules or not. Art and culture department. 1. Curator/Editor Gazetteer & Special Officer: Rs. 3000-4800/-p.m. (Pre-revised) Rs. 8750-13,100/- p.m. (Revised 1996) 2. Museologist/Compilers. Rs. 2000-4150/- p.m. (Pre-revised) Rs. 6350-11130/- p.m. (Revised 1996) 2. Non-Existent middle level post (insisted by Department) Asst. Director Rs. 2600-7750/- p.m. (Pre-revised) Rs. 7750-12,115/- p.m. (Revised, 1996) 3. Other Departments where there are no Middle level posts and pay scales. And Cadre Promotional Services are Given (R.O.P.- 1996) 1. Printing and Stationary: (1)Dy. Director: Rs. 30004800/- p.m. (Pre-revised) Rs. 8750-13,100/- p.m. (Revised 1996) (2) Asst. Director: Rs. 1975-3975/- p.m. (Pre-revised) Rs. 6350-11,100/- p.m. (Revised 1996) 2. Food and Civil Supply (1) Dy. Director, Supply: Rs. 3000-4800/- p.m. (Pre-revised) Rs. 8750-13,100/- p.m. (Revised, 1996) (2) Supdt. of Supply Rs. 1900-3850/- p.m. (Pre-revised) Rs. 5900-10,440/- p.m. (Revised, 1996) 3. Directorate of Information & Public Relations. (1)Dy. DIPR: Rs. 3000-4800/- p.m. (Pre-revised) Rs. 8750-13,100/- p.m. (Revised, 1996) (2) Information Senior: Rs. 1975-3975/- p.m. (Pre-revised) Rs. 6100-10,795/- p.m. (Revised, 1996) 4. Labour Department: (1) Dy. Labour Commissioner: Rs. 3000-4800/- p.m. (Pre-revised) Rs. 8750-13,100/- p.m. (Revised, 1996) (2) Supdt. of Supply Rs. 1900-3850/- p.m. (Pre-revised) Rs. 5900-10,440/- p.m. (Revised, 1996) 3. Directorate of Information & Public Relations. (1)Dy. DIPR: Rs. 3000-4800/- p.m. (Pre-revised) Rs. 8750-13,100/- p.m. (Revised, 1996) (2) Information Senior: Rs. 1975-3975/- p.m. (Pre-revised) Rs. 6100-10,795/- p.m. (Revised, 1996) 4. Labour Department: (1) Dy. Labour Commissioner: Rs. 3000-4800/- p.m. (Pre-revised) Rs. 8750-13,100/-p.m. (Revised, 1996) (2) Labour Inspector: Rs. 17500-3230/- p.m. (Pre-revised) Rs. 5300-9180/- p.m. (Revised, 1996) 5. Soil Conservation (Service Rule)(1) Soil Conservation Officer: Rs. 3000-4150/- p.m. (Pre-revised) Rs. 8750-13,100/- p.m. (Revised, 1996) (2) Divisional Officer (3) Planning Officer (2) Asstt. Soil Conservation Officer: Rs. 2000-4150/- p.m. (Pre-revised) Rs. 6350-11,130/- p.m. (Revised, 1996) 6. Urban Affairs Department (1) Architect: Rs. 3000-4800/- p.m. (Pre-revised) Rs. 8750-13,100/- p.m. (Revised, 1996) (2) Survey Officer: Rs. 2300-4385/- p.m. (Pre-revised) Rs. 6850-11,600/- p.m. (Revised, 1996) Another Departments in the Government N.B. 1. Finance (Pay Revision) Department-Pay Schedule, 1997. 2. Notified Vide Letter No. F9 (Pro-987 97/65 Dated 21.2.2000 In view of the above mentioned Departments having no middle level pay scale and ports the case of Museologist, Museum services can be considered for promotion to the next higher cadre posts of Curator. 9. Mr. M.F. Qureshi, learned State Counsel had submitted that an affidavit in opposition has been filed in this case on behalf of the Respondent No. 1, 2 and 3, wherein at paragraph 5, it has been stated that, according to the proposed Service rules, which, is pending Government's approval, the post of Curator is to be filled up by promotion from persons holding the post of Museologist for not less that 5 years continuously. He or she must also hold M.Sc/M.A. degree in Social Sciences and must have Diploma/Certificate/Trainee in Museology/Archeology. The learned State Counsel further submitted that Meghalaya Civil Service Rules, 1975 is meant for Meghalaya Civil Service Cadre only, and not to officers of Art and Culture Department, as submitted on behalf of the Petitioner. The State Counsel, also has received instructions from the Directorate of Art and Culture vide letter dated 19.4.2005, with regard to the Petitioner’s service career in the Department, which the learned Counsel has produced before the Court. I have persued the same and the same is reproduced herein below: 1(a) Dr. Julius L.R. Marak was appointed as Museologist in the Meghalaya State Mueseum vide Govt. Letter No. EDN 631/81/30 1.6.1984 and joined on 30.6.1984. I have persued the same and the same is reproduced herein below: 1(a) Dr. Julius L.R. Marak was appointed as Museologist in the Meghalaya State Mueseum vide Govt. Letter No. EDN 631/81/30 1.6.1984 and joined on 30.6.1984. (b) Completed the 16th Short term in service Training Course in muesology in 1984-85 at the National Museum, Delhi. (c) Undergone conservation of Cultural Properties Training at National research Laboratory for conservation at Lucknow, in 1997. (d) Participated and presented papers in a number of State level, District level, national level and regional level Seminar and the workshops. (e) Member of the State's Name authority Committee for two years and contributed in naming the important places of the State. (f) Dr. J.L.R. Marak submitted a representation to Govt. vide representation dt. 20.8.86 for holding the post of Curator and subsequently vide representation date 16.5.96, 28.5.97, 28.8.97, 4.8.98, 20.5.99, 8.5.2001 and 26.4.2002. (g) In absent of the action taken by Govt. in spite of representation noted above, Dr. J.L.R. Marak, Museologist has no other options to seek legal advice for redressal of the grievances as per writ petition on the subject when there is higher posting the Deptt. (h) The post of Curator was created vide Govt. letter No. EG/CP/1/74/4 dt. 27.2.79 and permanently retained vide No. MAC 56/98/41 dt. 27.9.2001 and lying vacant till date. (i) The case was registered in Gauhati High Court (The High Court of Assam, Nagaland, Meghalaya, Manipur and Tripura) Shillong Bench. 10. Thus, admittedly there is no Service Rules regulating the service conditions of the employees serving under the Directorate of Arts and Culture, Government of Meghalaya. Though the Drafts Rules has been framed the same is under process. As already mentioned above, in order to overcome the situation, the Government of Meghalaya vide Notification No. F(PR) 80/97/1 dated 14th October, 1997 constituted a committee to review and examine the recommendation of the Third Meghalaya Pay Commission on the structures of services, career progression and departmental scales of pay, vis-a-vis the representation and comments on the recommendation of the committee. The government of Meghalaya had considered the recommendation of the Pay Commission and of the Review Committee, decided in respect of Arts and Culture Department which has been reflected in the communication Dated 21.12.1998 issued by the Government of Meghalaya, Finance (Pay Revision) Department in the following terms, which is quoted hereunder: Government have decided that the recommendation of the Commission at Para 10.6.3 should be brought about by keeping in view the functional aspects of each stream/wing. Government have also decided that pending finalization of the service Rules, the senior level posts which are lying vacant should be filled up by promotion from the eligible officers. 11. The said decision of the Government of Meghalaya having not been processed resulting in denial of promotional avenues of the writ Petitioner for more than two decades, the Directorate of Arts and Culture, Meghalaya issued a communication on 21.4.2005 to the Under Secretary to the Govt. of Meghalaya, Arts and Culture Department, Shillong, requesting to consider the Govt. resolution on recommendation of the Meghalaya Pay Commission issued on 21.12.98 in respect of the writ Petitioner, in absence of Service Rules. The said communication has been issued with reference to the communication made by the Govt. Advocate on 18.4.2005 Gauhati High Court, Shillong Bench. 12. In reply to the said communication dated 14.5.2005 issued by the Government Advocate, Gauhati High Court, Shillong Bench, the Deputy Secretary to the Government of Meghalaya, Arts and Culture issued a communication dated 27.5.2005, making it clear therein that the Meghalaya Arts and Culture Draft Service Rules is under process and it will take sometime for finalisation and thus reiterated therein again that the Finance Department resolution dated 21.12.98 can be made applicable for promotion to the vacant senior level posts from eligible officers putting certain procedures to be complied with before the promotional orders are made. The procedures have been set out which is quoted hereunder: (a) Calling of integrity certificate from Political Department. (b) Finialisation of gradation list. (c) Recording and acceptance of ACR's of the officers for the last five years and reviewing and acceptance thereof and (d) Constitution of Departmental Promotion Committee etc. for completion of all these formalities. 13. The procedures have been set out which is quoted hereunder: (a) Calling of integrity certificate from Political Department. (b) Finialisation of gradation list. (c) Recording and acceptance of ACR's of the officers for the last five years and reviewing and acceptance thereof and (d) Constitution of Departmental Promotion Committee etc. for completion of all these formalities. 13. The ladder of promotion to higher post of each employee is the main thrust in service life and one cannot be allowed to remain in the same cadre for years together and that is what has happened in the instant case. The Petitioner, inspite of she being eligible for the promotion to the next higher rank long back, she has remained in the same post for the last 24 years. Efficiency in the administration is bound to suffer. If an employee is allowed to continue in the same cadre for such a long period and the lack of promotion avenues would automatically demoralize the employees of the Department and the concept of legislative expectation is thus being frustrated. 14. The Hon'ble Apex Court in Raghunath Prasad Singh v. Government of Bihar and Ors. reported in AIR 1988 SC 1033 , at Para 4 observed as follows: ...Reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitudes to grow for achieving excellence in service. In the absence of promotional prospective, the service is bound to degenerate and stagnation kills the desire to serve properly.... 15. Considering the situation and the acceptance of the Finance Resolution dated 21.12.98 and the communication dated 27.5.2005 issued by the Deputy Secretary to the Government of Meghalaya, Arts and Culture Department, this Court dispose of this writ petition with the following directions, viz. (a) A mandamus is issued directing the Secretary to the Government of Meghalaya, Arts and Culture Department to take up the cases of the Petitioner for consideration of promotion to the next higher post i.e. Curator within a period of three months from the date of receipt of the certified copy of the order after observing all the formalities as indicated in the communication dated 27.5.2005 and if the formalities as indicated above goes in favour of the Petitioner she should be promoted immediately to the next higher post. (b) The promotion of the Petitioner, in such a case, shall be given effect to with retrospective effect, i.e. w.e.f 1.4.2001. 16. In the result the instant writ petition is allowed as indicated above. The parties are directed to bear their own costs in the facts and circumstances of the case.