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2010 DIGILAW 222 (GAU)

Lohskhembha Dkhar v. State of Meghalaya

2010-03-24

HRISHIKESH ROY

body2010
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. S. Sen, learned Counsel appearing for the Petitioners in W.P. (C) No. 332 (SH) 2005 and W.P.(C) No. 405 (SH) 2005. Mr. K.S. Kynjing, learned Advocate General represents the official Respondents in both the cases. Some of the private Respondents are represented by Mr. B.N. Dutta, learned senior Counsel, Mr. E.C. Suja and Mr. N. Kozike, learned Counsels. 2. The Petitioners challenge the decision taken by the Meghalaya State Cabinet on 21.6.2005 for regularization of services of pre 2002 adhoc employees through a screening process. The Petitioners, whose names appears in a select list dated 14.6.2001, contend that through such regularization, their claim for appointment as LDAs would be adversely affected. 3. The selection of the Petitioners was initiated by the advertisement dated 6.1.1999 issued by the Member Secretary, District Selection Committee of Jaintia Hills District for the posts of, inter alia, LDA-cum-Typist. Specific number of vacant posts was not notified in the advertisement but it was indicated that available and anticipated vacancies are to be filled up through the advertised recruitment process. 4. Following the interviews held in February/March, 2001, the select list of 80 (eighty) successful candidates in order of merit was notified on 14.6.2001 and names of the Petitioners were empanelled in the said list, in between serial No. 39 and 80. The select list valid for one year was extended and by virtue of the final extension, the life of the select list stood extended till 30.6.2005. 5. As the Petitioners were not receiving their appointment, they approached this Court by filing, inter alia, W.P. (C) No. 161, 164 and 167 (SH) of 2002, seeking direction for their appointment. This Court by the common judgment and order dated 26.3.2003 disposed of these and other writ petitions by holding that the State cannot be compelled to operate the select list and give appointment to the selected candidates and accordingly the said prayer for appointment of the Petitioner was dismissed. However the Court recorded that if vacancies accrue thereafter, the same be filled up from the select list during its validity. 6. Eventually the Government operated the select list dated 14.6.2001 uptil Serial No. 38 and the writ Petitioners, whose names were enlisted below Serial No. 38 did not get appointment. They have therefore, approached this Court seeking direction for their appointment, on the basis of the select list dated 14.6.2001. 6. Eventually the Government operated the select list dated 14.6.2001 uptil Serial No. 38 and the writ Petitioners, whose names were enlisted below Serial No. 38 did not get appointment. They have therefore, approached this Court seeking direction for their appointment, on the basis of the select list dated 14.6.2001. They also challenge the Meghalaya State Cabinet's Decision dated 21.6.2005, whereby it was decided to regularize the services of the pre 2002 adhoc appointees. 7. Arguing for the Petitioners, Mr. S. Sen, learned Counsel submits that although in the earlier round of litigation the Petitioners' claim for appointment was rejected by the Court, it was incumbent on the Respondents to fill up the available vacancies from the available select list instead of considering regularization of services of the adhoc appointees and it is submitted that no undue benefit can be conferred on ad-hoc appointees who were appointed on pick and choose basis. 7.1. It is also submitted that the right of the Petitioners in pursuant to their selection for appointment cannot be usurped by regularizing the services of ad-hoc appointees and such usurpation of rights of the Petitioners as selected candidates, is not in consonance with the law laid down by the Supreme Court in the case of Purushottam v. Chairman, MSEB reported in (1999) 6 SCC 49 . 7.2. Referring also to the Supreme Court decisions in Secretary, State of Karnataka v. Urn Devi reported in (2006) 4 SCC 1 and the decision reported in 2007 AIR SC 1018 in the case of Punjab Water Supply and Sewarage Board v. Ranjodh Singh, the learned Counsel submits that there can be no regularization of services of ad-hoc appointees whose appointments were made through an illegal and not through an irregular process. 8. Challenging the right of the Petitioners to challenge the Cabinet Decision to regularize the services of ad-hoc appointees, Mr. K.S. Kynjing, the learned Advocate General submits that the life of the select list on the basis of which the Petitioners seek appointment had expired on 30.6.2005 and since the writ petitions came to be filed only subsequently, no right of appointment can be claimed by the Petitioners and under such circumstances they cannot challenge the Government's regularization decision which does not affect any legal rights of the Petitioners. 8.1. 8.1. The learned Advocate General submits further that the Government Decision was taken as an one time measure to take care of the needs of the ad-hoc appointees who have served the Government for last several years and since a screening process is envisaged before regularization of the 1548 ad-hoc appointees, the decision of the Government based on public policy and in public interest, is not liable to be interfered with by the Court. 9. Tracing the history of adhoc appointments in Meghalaya State preceding the impugned Cabinet Decision, the Advocate General submits that phenomena of ad-hoc appointment is sought to be curbed by the Government by taking up an one time measure of regularization of only the deserving ad-hoc appointees and since the process would hereinafter facilitate the Government to make appointment only on regular basis, no interference with the Cabinet Decision is warranted in the present case. 10. Leading the arguments on behalf of the ad-hoc appointees who are the beneficiaries of the Government decision (private Respondents), Mr. B. N. Dutta, learned senior Counsel submits that when the earlier writ petitions filed by some of the writ Petitioners for appointment on the basis of the select list dated 14.6.2001 was dismissed through the common judgment dated 26.3.2003, the Petitioners cannot now re-agitate the matter in a second round, claiming in substance, the very same relief which was earlier refused and accordingly it is submitted that the writ petition is not maintainable and be thrown out at the threshold. 10.1. The learned senior Counsel refers to the Supreme Court decision in the case of Union of India v. Kali Dass Batish reported in AIR 2006 SC 789 to contend that mere inclusion of a candidate's name in the select list confers no enforceable right for appointment and if there is no right, there can be no justification to maintaining writ petition, for enforcement of a non-existent right. 10.2. The learned senior Counsel also points out that the decision in Uma Devi (supra) was rendered by the Apex Court on 10th April 2006 much after the Cabinet Decision dated 21.6.2005 and referring to Paragraph 53 in the judgment, Mr. Dutta contends that regularization already made, need not be re-opened on the basis of the Uma Devi judgment. 10.3. In this context Mr. Dutta contends that regularization already made, need not be re-opened on the basis of the Uma Devi judgment. 10.3. In this context Mr. Dutta refers to the Government Notification dated 7.12.2005 (Annexure R-7 to the private Respondents Additional Affidavit), wherein it was recorded that in respect of 1548 numbers of ad-hoc appointees, the Cabinet had already approved regularization while some formalities remains to be completed. On such basis, the learned senior Counsel submits that the regularization decision taken, prior to the Uma Devi's judgment, need not be re-opened and the said judgment can operate only prospectively, for future ad-hoc appointees. 10.4. It is further submitted by Mr. Dutta that the writ Petitioners were selected for appointment in 2001 in pursuant to the advertisement made on 6.1.1999 and since the select list itself had expired on 30.6.2005, there cannot be any direction for filling up the available vacancies from an expired select list He submits that if such an old select list is used to fill up the vacancies, the right of those who are in search of Government Appointment and who may have qualified for such appointment only after the conclusion of the selection process made in the year 2001 would be adversely impacted and their rights under Article 14 and 16 of the Constitution of India will be infringed. 10.5. The final submission made the learned senior Counsel is that some of the adhoc appointees (private Respondents) had earlier filed writ petitions (including W.P. (C) No. 175 (SH) 2003) seeking direction for their regularization in pursuant to the Cabinet Decision dated 21.6.2005. It is pointed out by Mr. Dutta that this Court by judgment and order dated 4.8.2005 in W.P. (C) No. 175 (SH) 2003 had directed consideration of the cases of the ad-hoc appointees for regularization in terms of the Cabinet Decision The learned Counsel submits that similar directions have been given in several other writ proceedings initiated by the ad-hoc appointees and in view of such directions of the High Court for implementation of the Cabinet Decision dated 21.6.2005, there should be no interference by this Court with the said decision, rendered by a Co-ordinate Bench of this Court. 11. Mr. E.C. Suja and Mr. 11. Mr. E.C. Suja and Mr. N. Kozike, the learned Counsels representing some of the private Respondents while adopting the arguments of the learned senior Counsels submit further that the ad-hoc appointees have been continuing in service for a very long time and any disturbance in their continuance would not only impact the private Respondents but would also impact their families and under such circumstances, the Court should adopt a humanitarian approach in the matter. 11.1. Referring specifically to the appointment of Respondent No. 18, Smti Joy Rymbai it is pointed out by Mr. Suja that the post where she was appointed was created only on 12.4.2001, much after the advertisement (dated 6.1.1999) and the recruitment process and accordingly it is contended that even if relief to the writ Petitioners is to be granted, no interference with the appointment of the Respondent No. 18, is warranted in the facts of the instant case. 11.2. Mr. Suja further submits that the selection process initiated through advertisement dated 6.1.1999 cannot be made the basis for making regular appointment to future vacancies and in this context, the learned Counsel refers to the Supreme Court decision in Prem Singh v. Haryana State Electricity reported in (1996) 4 SCC 319 . 12. Before adverting to the other issues raised, it may be appropriate to deal with the submission made on behalf of the private Respondent No. 18, Smti. Joy Rymbai. Since the post in which Smti. Joy Rymbai was appointed was created only on 12.4.2001, much after the advertisement of6.1.1999, this post is a future vacancy and in light of the Supreme Court decision in Prem Singh (supra), no challenge to the appointment of Respondent No. 18, Smti. Joy Rymbai can be entertained at the instance of the writ Petitioners. Accordingly it is declared that the right of the Respondent No. 18, Smti. Joy Rymbai cannot be a subject matter of challenge in the present proceedings. 13. In so far as the right of appointment claimed by the writ Petitioners on the strength of the select list dated 14.6.2001, it is already noted that the life of the select list stood extinguished (after several extensions) with effect from 30.6.2005 and this Court is unable to see an enforceable legal right in favour of the writ Petitioners, to secure appointment on the basis of an invalid select list. 13.1. 13.1. Such claim for appointment is also found to be unjustified in as much as, this Court by its common judgment and order dated 26.3.2003 in W.P. (C) No. 151 (SH) of 2002 and other connected writ petitions, had refused the claim for appointment put forward by some of the selected candidates and I see no reason to take a different view of the claim at this stage. 14. Having held that no legal right of appointment is available to the Petitioners, the next issue to be examined is the legality of the Cabinet Decision dated 21.6.2005 and also the right of the Petitioners to challenge the said decision. 15. The Supreme Court in Uma Devi (supra) while negating the right of ad-hoc appointees to be regularized in service made an exception and permitted the State as an one time measure, to regularise the services of irregularly pointed employees, who have worked for 10 years or more in duly sanctioned post. It was also clarified by the Supreme Court that regularization, if already made, need not reopened on the basis of the Court's decision in Uma Devi's case. 16. Having regard to the above view of the Supreme Court, it is seen that steps for regularization of service as an one time measure is permitted and if such regularization exercise is already made, the same need not be reopened on the basis of the Uma Devi's judgment. If this be the permissible scope of regularization of services of ad-hoc employees appointed through an irregular process, it cannot be said that under no circumstances, the Government cannot take steps to regularize the services of the deserving adhoc appointees. 17. Of-course regularization may not be automatic or can (not) be granted to undeserving ad-hoc appointees whose appointments are illegal, who for instance are appointed against non-sanctioned posts or for some such illegality, but no blanket restriction is placed on the Government to regularize the services of irregularly appointed, but deserving ad-hoc employees. 18. From the Government Notification dated 7.12.2005 it can be gathered that after the Cabinet Decision dated 21.6.2005, the process of regularization was initiated and this clearly was intended as one time measure, which was permitted to be taken by the Apex Court in Uma Devi (sipra). 18. From the Government Notification dated 7.12.2005 it can be gathered that after the Cabinet Decision dated 21.6.2005, the process of regularization was initiated and this clearly was intended as one time measure, which was permitted to be taken by the Apex Court in Uma Devi (sipra). The Government, as is submitted by the learned Advocate General, took this decision keeping in mind the interest of the long serving ad-hoc appointees and since it is intended as a measure to curb future ad-hoc appointments, same cannot be declared to be an illegal exercise. The humanitarian needs of the long serving employees cannot also be overlooked in this one time measure. 19. In view of the above discussion and having already declared that the writ Petitioners have no legally enforceable right to claim appointment on the basis of the select list dated 14.6.2001, I find no reason to entertain a challenge to the Cabinet Decision dated 21.6.2005 at their instance, particularly in view of the decision of the Apex Court in Kali Dass Batish (supra). 20. It is already recorded that this Court had issued directions in favour of ad-hoc appointees directing consideration of their cases for regularization in terms of the Cabinet Decision dated 21.6.2005. Having further regard to the Uma Devi's judgment which enables the State to take an one time measure for regularization of services of the ad-hoc appointees and the further restraint placed by the Apex Court that, regularization already made should be left undisturbed notwithstanding the decision in Uma Devi's case, I do not find any reason to interfere with the impugned Cabinet Decision dated 21.6.2005. It is declared accordingly. 21. In view of above, both the writ petitions stated dismissed without any order of costs. Petition dismissed.