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2018 DIGILAW 21 (MEG)

Dissimora Byrsat v. State of Meghalaya

2018-06-05

MOHAMMAD YAQOOB MIR

body2018
JUDGMENT : Mohammad Yaqoob Mir, J. This case has chequered history. The petitioner had been adjusted against the vacant post of Lower Divisional Assistant (LDA) in the pay of Rs. 375-12-459-EB-13-500-15-650/- p.m. plus other allowances as permissible under rule with effect from 08.03.1982 vide order dated 12.03.1982 issued by the Deputy Conservator of Forest, Social Forestry Division, West Khasi Hills District, Nongstoin with a condition that the officiating arrangement on temporary adhoc basis shall be subject to satisfactory performance of duty and same will automatically cease on joining of the L.D.A. transferred from Social Forestry Division, East Khasi Hills, Shillong. 2. Admittedly, the petitioner had joined on 08.03.1982. She has been given revised pay scales from time to time as is clear from records. She continued in the same arrangement uninterruptedly. She along with similarly situated employees were substantively appointed in pursuance to order dated 19.04.2002 issued by the Principal Chief Conservator of Forest, Meghalaya, Shillong, which reveals that the petitioner has been confirmed as L.D.A. with effect from 08.01.1991 against the permanent post. 3. The petitioner along with four others similarly situated employees appears to have represented for regularization which remained pending with respondent authorities. The Additional Principal Chief Conservator of Forest (Admn.), Meghalaya, Shillong, vide communication dated 08.01.2016, addressed to the Divisional Forest Officer, Social Forestry Division, West Khasi Hills, Nongstoin conveyed that the Administrative Department is pursuing the matter with the Personnel and Administrative Reforms (B) Department, therefore, Government direction on the matter may be awaited. 4. Confronted with the delayed action the petitioner filed WP(C) No. 287 of 2016. Not only petitioner but three other persons filed separate petitions bearing WP(C) No. 288 of 2016, WP(C) No. 289 of 2016 and WP(C) No. 290 of 2016. All the four petitions were disposed of vide judgment dated 13.07.2017. In Para-5 of the judgment it was opined that the services of the petitioner have already been confirmed which implies that her services have been regularized, until and unless a person is regularized her service cannot be confirmed. It has been observed that, since the Government vide letters dated 16.02.2007, 08.09.2009 and 06.01.2010 has forwarded the name of the petitioner for regularization/recommendation to the District Selection Committee, West Khasi Hills, Nongstoin, hence, District Selection Committee, West Khasi Hills, Nongstoin is directed to recommend/regularize the names of the petitioners and send the same to the Personnel Department, Government of Meghalaya. Thereafter, the Personnel Department, Government of Meghalaya and the Secretary, Forest Department, Shillong shall take all necessary steps to complete the whole exercise within one month from the date of receipt of the judgment. Further, it has also been ordered that post retirement benefits of the petitioner needs to be protected. 5. In compliance of the said judgment, the Deputy Commissioner & Chairman, District Selection Committee, West Khasi Hills District, Nongstoin vide communication dated 26th July, 2017 conveyed to the Under Secretary to Govt. of Meghalaya, Personnel & AR (B) Department, Shillong, that in compliance to the High Court order dated 13.07.2017 at Para-5, the petitioner is hereby recommended retrospectively to the post of L.D.A. in the office of the Divisional Forest Officer, Social Forestry Division, West Khasi Hills District, Nongstoin, for regularization by the Personnel Department. Consequently The said Deputy Commissioner has issued corrigendum dated 27th July, 2017 to the effect that the word "retrospectively" as appeared in the communication dated 26th July, 2017 is deleted. Finally, an order has been issued on 8th August, 2017 by the Deputy Secretary to the Govt. of Meghalaya, Forest & Environment Department providing for regularization of services of the petitioner and three other similarly situated employees with prospective effect. 6. Aggrieved whereof the petitioner has filed instant petition seeking a direction to the respondents to regularize the service of the petitioner with effect from 08.11.1991 and also to extend all services benefits. 7. The respondents No. 1 to 9 have not denied the position of the petitioner as it is but highlighted that in terms of regulation 3F of the Meghalaya Public Service Commission rules regularization had to be from the date of issue of the order by the appointing authority that is what has been followed. 8. Learned counsel for respondents, Mr. K. Baruah, submits that basically appointments were to be made either on the recommendation of Meghalaya Public Service Commission or on the recommendation of District Selection Committee. In the case of the petitioner, appointment was to be made by District Selection Committee. 8. Learned counsel for respondents, Mr. K. Baruah, submits that basically appointments were to be made either on the recommendation of Meghalaya Public Service Commission or on the recommendation of District Selection Committee. In the case of the petitioner, appointment was to be made by District Selection Committee. Buttressing the submission, he would submit that in fact, special concession was extended to the adhoc employees which include the petitioner, Government of Meghalaya, Personnel & Administrative Reforms Department Chapter XII vide No. PER.307/71/72, dated 18th December, 1973 noticed that the direct recruitment of staff on adhoc basis has been made by District and Subordinate Officers without consulting District Selection Committee. Then vide O.M. No. PER (AR) 235/80/257, dated 24th September, 1982 regularization of appointment made on adhoc basis to various posts falling within the purview of the District Selection Committee was considered and mode was prescribed for regularization. Accordingly, the case of the petitioner was also taken with the District Selection Committee the Committee recommended regularization prospectively, same has been done in terms of No. PER(AR)75/83/2, dated 26th April, 1983 which provides that in such cases effect to regular appointments was to be given from subsequent date preferably from the date of issue of appointment. The said rule position has not been challenged. 9. Confronted with the legal position, learned counsel for petitioner submits that the petitioner has given her youth to the Department as she has rendered thirty five years of service, if her regularization is given effect from the date of the order i.e. 08.08.2017, same would be much to the disadvantage and would not be in conformity with the judgment of this Court dated 13.07.2017 wherein the Court has specifically opined that post retirement benefits of the petitioner needs to be protected. Finally, learned counsel for petitioner submits that the post retirement benefits of the petitioner may be protected in tune with judgment dated 13.07.2017 which has attained finality. 10. The petitioner deserves some protection. After all she has rendered thirty five years of continuous service. In fact, her services were confirmed by the Principal Chief Conservator of Forest with effect from 08.01.1991 against the vacant post which order has neither been revoked nor withdrawn same stands noticed in the judgment dated 13.07.2017, in terms whereof District Selection Committee was to formally recommend regularization of service of the petitioner with effect from the said date i.e. 08.01.1991. The respondents shall reconsider grant of regularization w.e.f. 08.01.1991 notionally and monetarily prospectively i.e. w.e.f. 08.08.2017. The case of the petitioner shall not be open to be quoted as a precedent by any other officials who have not voiced against their prospective regularization. The respondents shall pass appropriate order viz-a-viz petitioner in aforesaid background in tune with judgment dated 13.07.2017 preferably within a period of six weeks. 11. Petition accordingly disposed of.