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2009 DIGILAW 913 (GAU)

Vivek H. Wahlang v. State of Meghalaya

2009-12-17

TINLIANTHANG VAIPHEI

body2009
JUDGMENT Tinlianthang Vaiphei, J. 1. These two writ petitions involving the same parties and are interconnected have been heard together and are now being disposed of by this common judgment. The petitioner in WP(C) No. 22 (SH) of 2009 prays for quashing the advertisement dated 9.1.2009 calling for eligible candidates to fill up the vacant post of Assistant Manger in Orchid Hotel, Polo Road, Shillong and for passing a consequential order to regularize him to that post with the approval of the Board of directors of the respondent-Corporation in pursuance of the letter dated 17.9.2007. In WP(C) No. 114 (SH) of 2009, he prays for quashing the order dated 23.4.2009 withdrawing all his official functions with immediate effect and until further orders. 2. The facts prompting the petitioner to file WP(C) No. 22 (SH) of 2009, as pleaded by him, may be briefly noticed at the outset. He, holding a Diploma in Hotel Management, Catering and Nutrition, applied for a job with the Ministry of Tourism, Government of Meghalaya by filing the application dated 9.6.2003. On the basis of this application, he was appointed as Assistant Manager on contract basis at Orchid Hotel with the concurrence of the Board of directors vide the letter dated 1.4.2004 issued by the Managing Director (respondent 4) with effect from 15.4.2004. The contractual appointment was made renewable on the basis of his performance. He accepted the appointment and was posted as Assistant Manager at Orchid Hotel, Shillong. His contractual appointment was extended for a further period of three months to be effective from 16.4.2006 vide the letter dated 6.5.2006 issued by respondent 4. His contractual appointment was again renewed from time to time. Ultimately, he sought for regularization of his contractual appointment. In recognition of his outstanding performance of his duties, the respondent No. 4 by the office order dated 5.12.2006 granted an incentive of Rs. 1,000 to him. Thereafter, the respondent No. 4 issued the notification dated 17.9.2007 appointing him as Assistant Manager at Orchid Hotel, Shillong on regular basis in the pay scale of Rs. 6,350-11,130 per month. The notification, however, did mention that his appointment was purely on a temporary basis and subject to the approval of the Board of directors of the Corporation. Thereafter, the respondent No. 4 issued the notification dated 17.9.2007 appointing him as Assistant Manager at Orchid Hotel, Shillong on regular basis in the pay scale of Rs. 6,350-11,130 per month. The notification, however, did mention that his appointment was purely on a temporary basis and subject to the approval of the Board of directors of the Corporation. While discharging his duties, he came to know from some reliable sources that when his case and the case of one Smt. Shelly Baruah, who was appointed on contractual basis on a much later date, i.e., on 18.7.2005, were placed together before the Board of directors for regularization, but no decision was taken on his case while the contractual service of the said Shelly Baruah came to be regularized vide the order dated 20.3.2008. The petitioner did not immediately challenge the decision of the Board as he was hopeful that his case also would be appropriately dealt with by the Board of directors in their next meeting since there were numerous instances when other incumbents who joined later than him and whose accomplishments were insignificant compared to the services rendered by him had been regularized. 3. It is also the case of the petitioner that in due course of time, his relationship with the respondent No. 5 started showing signs of strain with the result that the latter issued the impugned order informing him that the Board had approved the recommendation of the selection committee for filling up the post of Assistant Manager, Orchid Hotel by inviting applications to the said post through advertisement. The petitioner was also informed of his right to apply for the post. Pursuant to the decision taken by the Board of directors, the impugned advertisement was issued. In the month of June 2008, the petitioner preferred another writ petition being WP(C) No. 14 (SH) of 2008 before this Court to set aside the letter dated 6.6.2008 issued by the respondent No. 5 temporarily transferring the petitioner as Assistant Manager, Orchid Lake Resort, Umiam. This Court by the order dated 16.6.2008 passed an interim order staying the operation of the letter dated 6.6.2008. The petitioner subsequently withdrew the writ petition when the respondent No. 5 allowed him to continue in his post as the Assistant tanager of Orchid Hotel, Polo Road, Shillong. This Court by the order dated 16.6.2008 passed an interim order staying the operation of the letter dated 6.6.2008. The petitioner subsequently withdrew the writ petition when the respondent No. 5 allowed him to continue in his post as the Assistant tanager of Orchid Hotel, Polo Road, Shillong. According to the petitioner, the respondent No. 5 has completely ignored his efforts and contributions for the phenomenal growth of the business of Orchid Hotel and also of the incentive of Rs. 1,000 per month granted to him by the former Managing Director of the Corporation in recognition of his Services and for further improvement of his performance. It is contended by him that the impugned decision of the respondent No. 5 is without any justification and is actuated by malice and is merely a ruse to get rid of his service. Hence, this writ petition has been filed by him for appropriate relief. 4. The writ petition is opposed by the respondent-Corporation by filing their affidavit-in-opposition. It is the case of the respondent authorities that the petitioner was initially appointed on 1.4.2004 as Assistant Manager, Orchid Hotel, Polo Hills, Shillong on contractual basis for a period of one year only on a monthly contract fee of Rs. 10,000 with nine conditions, non-fulfillment of any of those conditions would entail termination of his service without notice and without assigning any reason. In the course of his short span of contractual service with the corporation, he made a representation on 10.3.2005 to the Management of the Corporation for confirming him as Assistant Manager, Orchid Hotel, Shillong; he was, therefore, asked to produce the original certificates and clarify as to whether his name appearing in his CV, i.e., Vivek H. Wahlang was different from the name appearing in his original application, namely, Vivek S. Hooroo. His contractual appointment was, in the meantime, extended by the Corporation from time to time. The order dated 17.9.2007 issued by the respondent No. 5 regularizing the contractual appointment of the petitioner was made purely on temporary basis and subject to the approval of the Board of directors of the Corporation. His contractual appointment was, in the meantime, extended by the Corporation from time to time. The order dated 17.9.2007 issued by the respondent No. 5 regularizing the contractual appointment of the petitioner was made purely on temporary basis and subject to the approval of the Board of directors of the Corporation. The decision to issue the impugned advertisement of the post of Assistant Manager heretofore held by the petitioner has been taken by the Board of directors on the recommendation of the Sub-Committee on the following admitted facts: There was no open advertisement for filling up the post of Assistant Manager, Orchid Hotel at the time the petitioner was inducted in the Corporation. The date of birth changes from year to year, 13.9.1965 as per Passport with the name as Vivek Sharma Hooroo, 20.4.1972 as per Affidavit dated 20.4.2004 made at Shillong and 13.7.1965 as per his initial curriculum vitae dated 9.6.2003. Therefore, at the time the petitioner entered into contractual service with the Corporation, he was 38 years old. He was, thus, clearly age bar even by the limit applicable to a reserved category candidate. The certificate conveyed by the Ministry of Home Affairs, New Delhi on his Scheduled Tribe status vide the letter dated 29.8.1985 is also improper as without the Scheduled Tribe Certificate which is mandatorily to be issued by the concerned Authority of the District of the State where he originally belongs. 5. It is asserted by the Corporation that the case of Smt. Shelly Baruah stands on a different footing as she was entertained through an open advertisement in the year 2002; that she was first appointed on contractual basis and the Board after examining her case and position secured by her as a candidate in its 115th meeting held on 13.12.2007 found her suitable for regular appointment to the post of Assistant Manager (Accounts) vide the letter dated 20.3.2008. She had appeared through direct interview in which she was ranked 3rd position. The first candidate, after initial appointment, resigned from the post while the second candidate declined the appointment as she had already been employed elsewhere whereupon Smt. Shelly Baruah came to be appointed as she had already served under the Corporation on contractual basis. She had appeared through direct interview in which she was ranked 3rd position. The first candidate, after initial appointment, resigned from the post while the second candidate declined the appointment as she had already been employed elsewhere whereupon Smt. Shelly Baruah came to be appointed as she had already served under the Corporation on contractual basis. The answering respondents deny that there was any sign of dissent between him and the respondent No. 5 at any time: in fact, the latter by his letter dated 9.1.2009 informed the petitioner that the matter pertaining to his case had been examined by the Board and that his case would be taken through an open advertisement as recommended by the Sub-committee constituted in that behalf. As for the transfer, it was a normal incident of service and there was no mala fide intention as alleged by him at that time, which was summer season, there was heavy pressure of works at Barapani Lake Resort due to heavy influx of tourists. On realizing the real reason and intention of the respondent No. 5, he awkwardly withdrew the writ petition. In advertising the post held by the petitioner, the object of the respondent-Corporation is to ensure wide publicity and to enable all eligible candidates to take part in open competition in the examination to be conducted by the Corporation. The Corporation also extended the contractual appointment of the petitioner till 31.3.2009 so that his age can be relaxed as he will be a departmental candidate in the ensuing examination. It is only through this channel that the irregularities in the appointment of the petitioner can be regularized. It is stoutly denied by the answering respondents that the respondent No. 5 showed any high-handedness towards, or tried in any way to ostracize, the petitioner on the basis of the impugned order; his contractual appointment was never made by following a normal procedure and his case completely differs from the case of the said Shelly Baruah nor is there any nepotism as alleged. The answering respondents also deny the claim of the petitioner that he has been rendering unblemished service towards development of Orchid Hotel and assert that the conditions of the Hotel is, on the contrary, going down day by day as seen from the provisional revenue and expenditures for the last three years, which is also not up to date, for which they are reviewing his performance at the Hotel. The Board could not regularize his service as his initial entry into the contract service with the Corporation did not come through proper administrative procedure. There is no sign of vindictiveness or mala fide shown by the respondent No. 5. These are the various contentions of the answering respondents. No case has been made out by the petitioner for the interference of this Court under Article 226 of the Constitution. The petitioner has filed his affidavit-in-reply, the contents whereof are basically repetition or elaboration of his averments and contentions in his writ petition and, as such, it is not necessary to reproduce them for the sake of brevity. 6. Since the petitioner claims that his service as the Assistant Manager of the hotel has been regularized by the respondent authorities, I may at the outset refer to the relevant portion of the order of regularization dated 17.9.2007 (Annexure-L), which is as follows: In the interest of public service, Shri Vivek H. Wahlang, S/o Mrs. C.H. Wahlang of Mawlai Mawroh, who was appointed on contract basis as Asst. Manager, Orchid Hotel, Shillong since the 15th April, 2004 is hereby regularly appointed as Assistant Manager in the establishment of the Meghalaya Tourism Development Corporation in the scale of pay of Rs. 6350-225-7700-EB-240-9380-250-11, 130 per month. He is posted as Assistant Manager Orchid Hotel, Shillong with effect from the date of joining. The appointment is purely on temporary basis and subjected to the approval of the Board of directors of the Corporation. Sd/- (K.L. Tariang), Managing Director, MTDC, Shillong. 7. Admittedly, there is no set of recruitment rules regulating the appointment of the employees of the Meghalaya Tourism Development Corporation (MTDC for short). The petitioner was initially appointed as Assistant Manager under the MTDC on contract basis, which was renewed from time to time till his service was regularized on the basis of the notification dated 17.9.2007 which was extracted earlier. The petitioner was initially appointed as Assistant Manager under the MTDC on contract basis, which was renewed from time to time till his service was regularized on the basis of the notification dated 17.9.2007 which was extracted earlier. It is claimed by the respondent authorities that such regularization was conditional upon the approval of the Board of directors of MTDC, and when the Board refused to approve the regularization, the petitioner has no right to regular appointment. As already noticed, there is no rule governing the service condition of the employees of MTDC. No administrative instructions have been produced by the respondent authorities requiring the approval of the Board of directors for regularization of the contract appointment of the petitioner. On the contrary, the note at page 2 of the file relating to the appointment of the petitioner produced by the respondent authorities reveals that the confirmation or otherwise of his service (petitioner's service) is well within the powers of the Managing Director and such matters were never referred to the Board as MD is competent to do so. On the basis of this revelation, in my judgment, the need for seeking the approval of the Board for regularizing the contract appointment of the petitioner stood obviated, and it was absolutely unnecessary for the Managing Director to refer to the Board for such exercise. As already noticed, no rule or standing instructions have been produced by the respondent authorities requiring the approval of the Board for regularizing the contract appointment of the petitioner. Merely because the Managing Director sought for the approval of such regularization even though the same is unnecessary, such unnecessary exercise could not have clothed the Board of directors with the power of approval. In Sarkari Sasta Anaj Vikreta Sangh vs. State of M.R. (1981) 4 SCC 471 , the Apex Court held that merely because Central Government's concurrence was needlessly obtained on an earlier occasion, State Government was not obliged to obtain such concurrence for future amendments as well and that needless action does not become a binding precedent. On the other hand, the Managing Director is apparently guilty of abdication of his lawful authority in seeking such approval. For better appreciation of the decision of the Apex court in Sarkari Sasta Anari (supra), paragraph 6 of the judgment is reproduced hereunder: (SCC, pp. 476-77 para 6) 6. On the other hand, the Managing Director is apparently guilty of abdication of his lawful authority in seeking such approval. For better appreciation of the decision of the Apex court in Sarkari Sasta Anari (supra), paragraph 6 of the judgment is reproduced hereunder: (SCC, pp. 476-77 para 6) 6. The original Order of 1960 was made by State government pursuant to the powers delegated to it by the Central Government by Notification No. GSR 1088 dated 15th November, 1958. GSR No. 1088 dated 15th November, 1958 required that the concurrence of the Central Government should be obtained by the State Government in respect of only orders made in relation to matters covered by Clauses (a) and (d) of Section 3(2) of Essential Commodities Act. GSR 1088 of 15th November, 1958 was later superseded by other notifications. The notification in force on the date of amendment of the control order was GSR 800 dated 9th June, 1978, under which concurrence of the Central Government was necessary only when the orders related to matters specified in Clauses (a), (c) and (f) of Section 3(2) of the Essential Commodities Act or in regard to distribution or disposal of foodstuffs to places outside the State or in regard to regulation of transport of any foodstuffs under Clause (d). The control order of 1960 and the amendment dated 30th October, 1980 do not relate to any of these matters and the concurrence of the Central Government was unnecessary. It may be that the concurrence of the Central Government was obtained by the State Government before the 1960 control order was made but that was merely unnecessary. Merely because concurrence of the Central Government was needlessly obtained on an earlier occasion, the State Government was not obligated to obtain the concurrence of the Central Government whenever again there was an amendment of the control order. 8. Irrespective of whether the petitioner was appointed in accordance with the well-recognized procedure for recruitment, his contract appointment has now been regularized by the Managing Director of MTDC, who is admittedly the competent appointing authority. 8. Irrespective of whether the petitioner was appointed in accordance with the well-recognized procedure for recruitment, his contract appointment has now been regularized by the Managing Director of MTDC, who is admittedly the competent appointing authority. In this connection, I may refer to the observations of the Managing Director, MTDC, which is found at page 79 of the file as under: Agenda No: Shri Vivek H. Wahlang was appointed on contractual basis with effect from 16.4.2004 in the post of Assistant Manager initially for a period of one year and was given charge of the Orchid Hotel, Polo, Shillong. His contract was renewed at different intervals, the last of which stands to expire on 27.5.2006. During this period the revenue showed a marked improvement in the income of Orchid Hotel which is as follows: Rs. 70.19 lakhs Rs. 82.10 lakhs As against the previous years' performance indicated below: Rs. 26.56 lakhs Rs. 58.31 lakhs In view of the improvement in the Hotel's performance during the period of Shri Vivek H. Wahlang, his services may be extended by a period of 1 (one) Year on contractual basis. 9. Instead of rewarding the remarkable achievements of the petitioner, he has now been sought to be unceremoniously removed from his regular service on the pretext that the Board of directors refused to approve the regularization of his contract appointment. Not only that, the respondent authorities issued the office order dated 23.4.2009 withdrawing all his official functions with immediate effect and until further orders. This action of the respondent authorities is challenged by the petitioner in the second writ petition. When this Court, prima facie, found that this order was issued by the respondents in retaliation to the interim order dated 23.1.2009 passed by this Court staying the impugned advertisement, it observed that the respondents were playing cat and mouse game with this Court and then passed the interim order dated 27.4.2009 ordering that the functioning of the petitioner as Assistant Manager of Orchid Hotel, Polo Road, Shillong should not be disturbed till disposal of the connected writ petition. The petitioner in the first writ petition is not seeking the regularization of his contract appointment: he is rather challenging the decision of the respondent authorities to fill up the post held by him by the impugned advertisement dated 9.1.2009 (Annexure-Q). The petitioner in the first writ petition is not seeking the regularization of his contract appointment: he is rather challenging the decision of the respondent authorities to fill up the post held by him by the impugned advertisement dated 9.1.2009 (Annexure-Q). Therefore, there is no question of applying ratio laid down in Sectary State of Karnataka vs. Uma Devi, (2006) 4 SCC 1 , which is an authority for the proposition of law that a mandamus cannot be issued by courts for directing the State to absorb or regularize persons appointed on temporary, contractual, casual, daily wage or ad hoc basis. In the instant case, as the petitioner has already been regularized by the competent authority, he has the legitimate expectation to continue in his service without any hindrance. As his contract appointment has been regularized by a competent authority, the Board of directors has no power to annul such regularization or call for advertisement for filling up the post held by the petitioner. In my opinion, it will be most iniquitous at this stage to disturb the regularization of the contract appointment of the petitioner, more so, when he is found to be eligible for the post, which is a sanctioned posts, and when the services rendered by him in the hotel heretofore have been found to be remarkable: he appears to be an asset for the Corporation. In the view that I have taken, the impugned advertisement dated 9.1.2009 is ultra vires or is otherwise illegal and arbitrary. Similarly, the impugned action of the respondent authorities withdrawing all the functions of the petitioner as Assistant Manager of Orchid Hotel, Polo, Shillong is equally illegal. 10. For what has been stated in the foregoing, both the writ petitions succeed. The impugned advertisement dated 9.1.2009 (Annexure-Q) and the order dated 23.4.2009 (Annexure-Q) are hereby quashed. Let a mandamus issue directing the respondent authorities not to disturb the service of the petitioner except in accordance with law. However, on the facts and in the circumstances of the case, the parties are directed to bear their respective costs. Petition allowed.