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2010 DIGILAW 564 (GAU)

Pynshngain Phyllei v. Sarin K. Sangma

2010-08-10

ASHOK POTSANGBAM, TINLIANTHANG VAIPHEI

body2010
JUDGMENT Asok Potsangbam, J. 1. Heard Mr. H.S. Thangkhiew, learned Counsel appearing for the Appellant. Also heard Mr. K.S. Kynjing, learned Advocate General, Meghalaya assisted by Mr. N.D. Chullai, Sr. GA, Meghalaya, appearing on behalf of the State Respondents and Mr. K. Khan, learned Counsel appearing on behalf of the Respondent No. 1/writ Petitioner. 2. The Appellant, who is the State nominee for undergoing MDS course in the Regional Dental College, Guwahati, Assam, in the Conservative Dentistry, has filed this writ appeal against the impugned judgment and order dated 26.5.2010 passed by the learned single Judge in W.P.(C) No. 102(SH)/2010 and the brief facts leading to fling of this writ appeal may be noticed as hereunder. 2.1 The Appellant, who passed Bachelor of Dental Surgeon Course (BDS in short) in the year 2001, competed along with other candidates in the recruitment test conducted by the Meghalaya Public Service Commission( MPSC for short) in the month of March, 2005, for selection and appointment to the post of Dental Surgeon in the Health and Family Welfare Department, Govt. of Meghalaya. The Respondent No. l/writ Petitioner who is a B.D.S. degree holder, also participated in the aforesaid recruitment test conducted by the MPSC. The MPSC, after assessment of merit and suitability, recommended 18 names to the Government, in order of merit, for appointment as Dental Surgeon, vide communication dated 31.3.2005 and in the aforesaid recommendation, the Appellant was placed at Sl. No. 1 and the Respondent No. 1/writ Petitioner at Sl. No. 7 in the order of merit. Pursuant to the aforesaid recommendation, an order under No. Health 175/2001/92 dated 2.8.2005 was issued by the Commissioner and Secretary, Health and Family Welfare Department, Govt. of Meghalaya, appointing 12 persons including the Appellant as Dental Surgeons and thereafter, the Appellant joined service as Dental Surgeon w.e.f. 4.8.2005. 2.2. The Respondent No. 1/writ Petitioner was appointed on 10.11.2003 as Dental Surgeon temporarily, under Regulation 3(f) of the MPSC (Limitation of Functions) Regulation, 1972 (hereinafter referred to as Regulation 1972) for a period of 4 months. By an order dated 2.8.2005, Respondent Nos. 1 and four Ors. who have been appointed under Regulation 3(f) of Regulation 1972 were regularised w.e.f 31.3.2005 i.e. from the date of recommendation by the MPSC. By an order dated 2.8.2005, Respondent Nos. 1 and four Ors. who have been appointed under Regulation 3(f) of Regulation 1972 were regularised w.e.f 31.3.2005 i.e. from the date of recommendation by the MPSC. It may not be out of place to mention that Regulation 3(f) of the Regulation 1972 enables the authority to appoint persons to a temporary post for a period of four months without consulting the Public Service Commission in case of immediate requirement and exigency of service. However, the same regulation also stipulates that Public Service Commission should be consulted as soon as possible. 2.3. Regional Dental College, Guwahati, Assam, used to allot seats for Master of Dental Surgeon course(MDS for short), from time to time, to other North Eastern States where there is no Dental College in their respective States. The last allotment of seat for Meghalaya was made in the year 2006 and the controversy involved in this writ appeal pertains to allotment of one M.D.S. seat by the Principal of the Regional Medical College, Guwahati, Assam vide Memo No. RDC/59/95/205 dated 18.1.2010 In fact, One seat for Post Graduate Dental Surgery course in the speciality of conservative Dentistry in the Regional Dental College, Guwahati, for academic session of 2010-2011 was allotted to the State of Meghalaya. As the academic session for this Course was scheduled to commence from 1.6.2010, the Director of Health Services, Meghalaya, was requested to nominate the names of candidates on merit basis as the sole criterion and such State nomination was to be sent on or before 15.3.2010 so that the admission process could be completed by 31.5.2010. The letter dated 18.1.2010 of the Principal of Regional Dental College, Guwahati, Assam, is reproduced hereinbelow for better appreciation and reference. Govt. of Assam Office of the Principal Regional Dental College, Guwahati-22 No.RLC.59/95/160 dated Guwahati, the 18th January, 2010. To 1) The Director of Health Services Arunachal Pradesh, Nahalagan 2) The Director of Health Services Meghalaya,Shillong. 3) The Director of Health Services, Manipur, Imphal. Sub: Selection of candidates for MDS Course in the Regional Dental College, Guwahati. Sir, As per existing procedure of allotment of PG seats, the State of Nagland and Tripura has been allotted one seat each in the following specialities for the session 2010-11. 1. Arunachal Pradesh – 1 (one) seat in the speciality of Oral Surgery. 2. Sub: Selection of candidates for MDS Course in the Regional Dental College, Guwahati. Sir, As per existing procedure of allotment of PG seats, the State of Nagland and Tripura has been allotted one seat each in the following specialities for the session 2010-11. 1. Arunachal Pradesh – 1 (one) seat in the speciality of Oral Surgery. 2. Meghalaya – 1 (one) seat in the speciality of Conservative Dentistry. 3. Manipur – 1 (one) seat in the speciality of Prosthodontics. You are requested to nominate the name of the selected candidates keeping in view of the following criteria and send the nomination by 15 March.2010 to complete the admission process within 31st May, 2010 as per schedule fixed by the Government of India. 1. Candidate should be domicile of that State. 2. Selection should be made on merit basis. 3. Each State will sponsor the name of the selected candidate to the Principal, Regional Dental College, Guwahati only for final selection by the Selection Board before the 10th April/2009. The session will be started from 1st June, 2009. 4. Each state ill also forward the name of one waiting list candidate to the Principal, RDC. 5. If the 1st candidate refuses to join the course for any reason, he/she should surrender the seat in writing, in that case, the offer of the seats will go to the next waiting list candidate of that State. NB. Admission will be allowed subject to clearance of Pro rata share and approval of Govt. of India and DCI. Yours faithfully, Sd/ P.D. Bora Principal Regional dental College, Guwhati-22. 2.4. Pursuant to the aforesaid letter dated 18.1.2010 of the Principal of the Regional Dental College, Guwahati, the Director of Health Services (MI), Meghalaya, vide letter dated 25.1.2010, requested all the Medical and Health Officers of the Districts to select and forward the names of interested candidates for pursuing the aforesaid course on or before 22.10.2010. The application of the writ Appellant was forwarded by Medical and Health Officers, Jayantia Hills on 15.2.2010 and the application of the Respondent No. 1 was also forwarded by the Medical and Health Officer of East Garo Hills on 15.10.2010 along with the case of one Dr. L. Mawsor. 3. The application of the writ Appellant was forwarded by Medical and Health Officers, Jayantia Hills on 15.2.2010 and the application of the Respondent No. 1 was also forwarded by the Medical and Health Officer of East Garo Hills on 15.10.2010 along with the case of one Dr. L. Mawsor. 3. It is stated that the Director of Health Services (MI), Meghalaya, vide communication dated 23.3.2010 forwarded the applications of the Appellant and Respondent No. 1 to the Health and Family Welfare Department, Govt. of Meghalaya for further necessary action. It must be stated that there is no Rules framed by the Government for selection of candidates for Post Graduate Course (MDS) either by holding written test or any other test nor is there any executive instructions in this regard whereas the nomination/selection is to be made on the basis of merit as stipulated in the communication which is extracted hereinabove. In view of the above, the State Government relied upon the merit position obtained by the candidates in the merit list prepared on 31.3.2005 by the MPSC while recommending candidates for appointment to the post of Dental Surgeon, as discussed above, and on the basis of the aforesaid merit positions, the Appellant and the Respondent No. 1 were nominated by placing them at Sl. No. 1 and 2 respectively, for final selection by the Regional Dental College, Guwahati, Assam. On being finally selected by the Regional Dental College, Guwahati, Assam, for undergoing MDS course in the speciality in Conservative Dentistry, the Appellant was admitted for the course on 6.4.2010. 4. Aggrieved by placement of the Appellant above the Respondent No. 1 in the State nomination and selection of the Appellant by the Regional Dental College and admission thereto, W.P.(C) No. 102/2010 was filed by the Respondent No. 1 taking the following grounds: (a) Respondent No. 1 whose appointment under Regulation 3(f) of Regulation, 1972 was regularised by an order dated 2.8.2005 w.e.f 31.2.2005 and as such, Respondent No. 1 is senior to the writ Appellant and seniority should be the criteria for determining merit and as such the State Respondents should have followed the criteria of seniority-cum-merit. (b) In the past, Govt. (b) In the past, Govt. have followed the practice of nominating candidates on the basis of seniority and FR 95(5) of Meghalaya FRSR provides that, ordinarily no study leave could be granted to those employees who rendered less than 5 years of service under Govt. and the Petitioner not having completed 5 years of regular service at the time of nomination, could not be granted study leave under the aforesaid FR to undergo MDS course. 5. The Government Respondents as well as the Appellant filed their respective affidavits. In the aforesaid affidavit of the Govt., it is clearly stated that the criteria for nomination being merit alone in terms of the conditions stipulated in the letter dated 18.1.2010 of the Principal of the Regional Dental College, Guwahati, as extracted above, and in absence of any rules, executive instructions for testing merit of the candidates either by holding a written test or any other tests, the only consideration for determination of merit is the merit position obtained by the candidates in the recommendation of MPSC dated 31.3.2005. In the aforesaid recommendation of the MPSC, the Appellant was placed at Sl. No. 1 and Respondent No. 1 at Sl. No. 7, in the order of merit, and the Govt. have taken this as the basis for determination of merit of the candidates for nomination. It is also further contended by the learned Counsel for the State Respondents that even if some nominations had been made on the basis of seniority in the year 1998 and 2000, as alleged by the Respondents, the same cannot be continued as such practice is inconsistent with the law laid down by the Apex Court in the matter of selection/nomination for medical education and also in view of the criteria for nomination being only merit as envisaged in the letter dated 18.1.2010 of the Regional Dental College, Guwahati. Thus, the Appellant being placed above Respondent No. 1 in the merit position of the selection made by MPSC in the year 2005, was nominated and placed above the Respondent and such nomination of the Appellant, as discussed above, does not suffer from any infirmity and illegality. 6. Thus, the Appellant being placed above Respondent No. 1 in the merit position of the selection made by MPSC in the year 2005, was nominated and placed above the Respondent and such nomination of the Appellant, as discussed above, does not suffer from any infirmity and illegality. 6. It is also contended by the State Respondents that regularisation of services of the Respondent No. 1 w.e.f 31.3.2005 is only for financial benefit and not for seniority as seniority is to be determined as per merit position obtained by the candidates in the recommendation of the MPSC and the law laid own by this Court as well as by the Apex Court. It is also submitted by the leaned counsel appearing for the State Respondents that FR 95(5) of Meghalaya FRSR has nothing to do with the case at hand and it is very much within the power and discretion of the Govt. to relax the rules as the rules itself authorises to do so. 7. While endorsing the submissions of the State Respondents, the Appellant submits that from the years 2000 onwards the State has strictly and consistently made nomination of candidates on the basis of merit alone and if there was any deviation in the past as contended by the Respondent No. 1, it is simply an aberration, not consistent with the law laid down in this regard by the Apex Court as well as by this Court. It is further submitted that if such practice was there, such practice is bad in law and need not be followed and perpetuated. 8. W.P.(C) No. 102 (SH)/2010 was disposed of by the learned single Judge on 26.5.2010 by quashing the nomination of the Appellant dated 16.3.2010, as not sustainable in law with a direction to the Regional Dental College, Guwahati to consider the case of the Respondent No. 1 in preference to the Appellant for the Course of MDS in the College. 8. W.P.(C) No. 102 (SH)/2010 was disposed of by the learned single Judge on 26.5.2010 by quashing the nomination of the Appellant dated 16.3.2010, as not sustainable in law with a direction to the Regional Dental College, Guwahati to consider the case of the Respondent No. 1 in preference to the Appellant for the Course of MDS in the College. In the aforesaid judgment, the learned Single Judge took the view that the Respondent/writ Petitioner passed BDS course one year earlier than the Appellant and her appointment, under Regulation 3(f) of the Regulation of 1972, having been regularised with effect from 31.3.2005 vide orders dated 2.8.2005, the Respondent No. l should be deemed to be senior to the Petitioner and seniority should be the basis for determination of merit for the purpose of undergoing MDS course at the Regional Dental College, Guwahati. The judgment and order of the learned Single Judge dated 26.5.2010 is impugned in this writ appeal. 9. In the backdrop of the factual matrix, as noticed above, and in the light of the pleas taken by the rival parties, this Court is to examine and determine whether the impugned judgment and order of the learned Single Judge dated 26.5.2010 passed in W.P.(C) No. l02(SH)/2010 and reasoning adopted therein are unsustainable in law or not. 10. It is true that the Respondent writ Petitioner passed the BDS course one year earlier than the Appellant and she was appointed as Dental Surgeon on 10.11.2003 under regulation 3(f) of the Regulation 1972. However, admittedly, the Appellant and the Respondent/writ Petitioner along with Ors. competed in the recruitment test conducted by the MPSC for selection and appointment to the post of Dental Surgeon in the Health and Family Welfare Department, Govt of Meghalaya and in that the Appellant was placed at Sl. No. 1 and Respondent No. 1 at Sl. No. 7, in the order of merit. 11. We now examine the status and effect of the appointment made under Regulation 3(f) of the Regulation 1972. For better appreciation of the issue. Regulation 3(f) is extracted below: 3(f). No. 1 and Respondent No. 1 at Sl. No. 7, in the order of merit. 11. We now examine the status and effect of the appointment made under Regulation 3(f) of the Regulation 1972. For better appreciation of the issue. Regulation 3(f) is extracted below: 3(f). When an appointment is to be made by direct recruitment to a temporary post created in a service, if it is necessary in the public interest that the appointment should be made immediately and reference to the Commission would cause undue delay; provided that if the posts has been sanctioned for or is likely to last for more than four months, the Commission shall, as soon as possible, be consulted in all matters mentioned in the sub Clause (3) of Article 320 of the Constitution. 12. A careful reading of the Regulation 3(f) will leave no doubt that the appointment made under this regulation is only for a period of 4 months and such appointment, if made, to meet any emergent situation, the Commission is to be consulted as soon as possible. Regulation 3(f) does not authorise regular appointment to a permanent post, rather it is in the nature of ad hoc appointment. There is no dispute at the bar that the Meghalaya Pubic Service Commission (Limitation of functions) Regulation, 1972 is pari materia with the Assam Public Service Commission (Limitation of functions) Regulation, 1951 and the former is the carbon copy of the latter. 13. The issue relating to status and effect of Regulation 3(f) is no longer res integra in as much as the same has been discussed and decided affirmatively by two Division Bench of this Court in the following cases. In 2000(1) GLT 429: Arup Kr. Das 1 (Dr.) v. Sanjib Kakati (Dr.) a Division Bench of this Court held that the appointment under Regulation 3(f) being in the nature of ad hoc appointment, de horse the Rules for regular appointment and the period of service under Regulation 3(f) cannot be counted for the purpose of seniority either on final appointment or on regular appointment. The same view has been reiterated in other case reported in 2000 (1) GLT 504: Bhuban Ch. Konwar v. State of Assam and Ors. 14. Similar nature of issue came up for consideration before the Apex Court in a case reported in (1976) 1 SCC 283 : Dr. The same view has been reiterated in other case reported in 2000 (1) GLT 504: Bhuban Ch. Konwar v. State of Assam and Ors. 14. Similar nature of issue came up for consideration before the Apex Court in a case reported in (1976) 1 SCC 283 : Dr. Satyabrata Dutta Choudhury v. State of Assam and Ors. In the aforesaid case, the incumbents who were appointed under Regulation 3(f) of the Regulation came to be regularised in one batch through Public Service Commission and the Apex Court held that irrespective of the date of appointment of the incumbents under Regulation 3(e) and 3(f) of the Regulation, the seniority of the incumbents who are regularised in a batch by the Public Service Commission will be determined on the basis of merit list prepared by the Public Service Commission. The view of the High Court that in absence of any statutory rules for fixation of inter-se-seniority of the persons recruited through Public Service Commission, the execute instruction issued by the state Govt. under notification AAA.2/44/39 dated 5.2.1964 would govern the fixation of seniority and that such executive instruction shall hold the field was upheld by the Apex Court in the aforesaid case This instructions is also adopted in the State of Maghalaya, the relevant portion of which is reproduced below: 5. The seniority of the candidates selected in one batch on the recommendation of the Assam Public Service Commission should be fixed according to their order in the merit list, if they join their appointments within 15 days. If a candidate is prevented from joining within this period by circumstances of a public nature and beyond his control, the period may be extended under the orders of the Head of the Office; if not so extended, he will be graded according to the date of joining. 15. Thus, in view of the consistent view of this Court and the Apex Court with regard to the status and effect of appointment under 3(f) of Regulation 1972, we have no hesitation to hold that the view taken by the learned Single Judge that the appointment of writ Petitioner under Regulation 3(f) having been regularised should be held senior to the Appellant irrespective of merit position obtained by them with in recommendation of public Service Commission, is unsustainable and contrary to law. 16. 16. It is also not in dispute that the from the year 2000 onward nomination for undergoing PG Course in Medical Education has been made on the basis of merit and deviation, if any, prior to 2002 is simply embarrassing, not consistent with the law laid down by the Apex Court in the matter of selection of candidates for medical studies and such practice, if any, is bad in law and need not be followed preponderantly and this proposition finds support in Para 75 of the judgment of Apex Court reported in (2006) 1 SCC 667 : State of UP v. Neeraj Awasthi and Ors. 17. Adverting to the contentions stipulated in the communication dated 18.1.2010 issued by the Principal, Regional Dental College, Guwahati, the State Govt. has no option but to make a selection on the basis of merit and the merit alone is the criteria of such selection. Nomination of the Appellant by the State Govt. on the basis of merit obtained by the Appellant vis-a-vis the Respondent writ Petitioner, we do not find any infirmity or illegality in the approach of the State Govt. for selection of candidates and the selection has been made in consonance with the terms stipulated in the aforesaid communicator and as such, we are of the considered view that the impugned judgment of the learned Single Judge is contrary to law and same is liable to be interfered with, consequently, the impugned order dated 26.5.2010 passed by the learned single Judge in W.P.(C) No. 102(SH)/2010 is hereby set aside. The writ appeal stands allowed. No costs. Appeal allowed.