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2019 DIGILAW 102 (MEG)

Bakyntiew Skhembill v. State Of Meghalaya

2019-04-03

H.S.THANGKHIEW

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JUDGMENT : 1. The brief facts of the case is that the petitioner was temporarily appointed as L.D.A in the Government Normal Training School, Sohra on 26th May, 2011 by the respondent No. 3 and continued as such till her last appointment dated 19th January, 2017 which ended on 5th March, 2017. It is the further case of the petitioner that she was working against an existing vacancy in the Normal Training School, Sohra, which post is yet to be filled up by the District Selection Committee Annexed to the writ petition is the recommendation of the respondent No. 4 dated 14th May, 2013 (Annexure A-4) addressed to the respondent No. 3 whereby the petitioner has been recommended for regularization. The respondent No. 3 by letter dated 29th April, 2014 thereafter instructed the respondent No. 4 to take-up the matter with the District Selection Committee to process for regular appointment to the said vacant post. 2. However, thereafter no further action was forthcoming from the respondents and the petitioner after her last extension was out of service w.e.f. 5th March, 2017 onwards. The limited prayer in the instant writ petition is for consideration of her candidature as and when the post is advertised and selection held by the District Selection Committee. Further, the learned counsel for the petitioner has drawn the attention of this Court to the letter dated 20th March, 2017 (Annexure A-12) which refers to the option of contractual appointment. The letter is reproduced herein below: "GOVERNMENT OF MEGHALAYA DIRECTORATE OF EDUCATIONAL RESEARCH AND TRAINING LAITUMKHRAH, NONGRIMMAW, SHILLONG- 793011 Phone : 0364-2233248 Email : dert.megh@gmail.com No. DERT/APT/6/2016/33 Dated Shillong, the 20th March, 2017 To The Deputy Secretary to the Govt of Meghalaya, Education Department, Shillong. Sub : Ad-hoc Appointments matter pertaining to. Madam, With reference to the subject cited above, I have the honour to inform you that there are a few functionaries in Normal Training Schools (NTS) and Basic Training Centres (BTC) who have been appointed on 59 days and 89 days basis in applicable pay scales with re-appointment from time to time. The appointments are made in clear vacancies and apparently made for functional considerations till the time the BTCs and NTSs are integrated with the DIETs. The appointments are made in clear vacancies and apparently made for functional considerations till the time the BTCs and NTSs are integrated with the DIETs. However, the appointments have been objected by Treasury Officers on the ground that ad hoc appointments are contrary to the instructions of the Government in Personnel and AR (B) Department. Therefore, problems with payment of salaries are being encountered in the case of such appointments. In view of the above, it is proposed to make contractual appointments instead of appointment on 59 days and 89 days basis. I am, therefore, to request that Government approval may kindly be granted for contractual appointments in the vacant posts in the BTCs and NTSs till the posts are filled up through MPSC or DSC so that the problems in salary payments can be avoided. If the proposal is accepted, suitable remuneration may also be suggested. The list of temporary appointments is enclosed herewith. Yours faithfully, Sd/- (T.G. Momin) Director, Educational Research & Training Meghalaya, Shillong." 3. Mr. A. Khan, learned counsel for the petitioner strenuously urges that some consideration be given to the petitioner with regard to her service and also that she be considered for contractual appointment to the said post against which she was working pending any regular selection. 4. Mr. H. Kharmih, learned GA on behalf of the State respondents submits that there is no question that the writ petitioner be allowed to re-continue in the said adhoc post, inasmuch as, it is the stated policy of the Government that there shall be no more further adhoc appointments. In support of his submission, the learned GA has referred to the letter dated 24th September, 2015 (Annexure-I to the affidavit) which is reproduced herein below: "GOVERNMENT OF MEGHALAYA Government of Meghalaya Personnel & A.R (B) Department. No. Per (AR) 153/93/Pt.I/171 Dated Shillong, September 24, 2015 From : Commissioner & Secretary to the Govt. of Meghalaya, Personnel & A.R. (B) Department. To, 1. All Additional Chief Secretaries/Principal Secretaries/Commissioner & Secretaries/Secretaries Government of Meghalaya. 2. All Administrative Departments. 3. All Heads of Departments. 4. All Deputy Commissioners/Block Development Officer (C). Sub : Appointment of Adhoc/Temporary appointments in Government Departments/Offices. of Meghalaya, Personnel & A.R. (B) Department. To, 1. All Additional Chief Secretaries/Principal Secretaries/Commissioner & Secretaries/Secretaries Government of Meghalaya. 2. All Administrative Departments. 3. All Heads of Departments. 4. All Deputy Commissioners/Block Development Officer (C). Sub : Appointment of Adhoc/Temporary appointments in Government Departments/Offices. Sir, I am directed to refer to letters No. PER (AR) 152/7/66 dated 30th January,1978, PER (AR) 105/81/4 dated 26.6.1981, PER (AR) 239/80/49 dated 21.1.1983, PER (AR) 238/87/21 dated 22.2.1989, No. CS/MISC/2002 dated 30.4.2002 & PER (AR) 153/93/Pt.I/121 dated 23.5.2013. It has come to the notice of the Government that inspite of the various instructions banning adhoc appointments, there have been appointing authorities in the State Government who had made temporary or adhoc appointments without going through the prescribed procedure. Pay bills of such employees will therefore will not be generated through the Employee Database System. Any Appointing Authority who makes such appointments will be held responsible for violation of instructions and the Government has the option of initiating proceedings against the officer and/or deducting the liabilities of the adhoc employee from the salary and other entitlements of the Appointing Authority who had issued the appointment order. Henceforth, all Appointing Authorities under your Departments should be directed to ascertain/assess the overall position of vacancies as of now and that which may occur in every following year and these vacancies will be intimated to MPSC/DSC/Departmental Selection Committee for filing them up in regular manner. This may be brought to the notice of all subordinate offices under your jurisdiction for strict compliance. Yours faithfully, Sd/- Commissioner & Secretary to the Govt. of Meghalaya, Personnel & A.R. (B) Deptt." 5. Mr. H. Kharmih, learned GA further lastly submits that he has no instructions with regard to the proposal for contractual appointment to the said vacant post pending regular appointment via the District Selection Committee. 6. I have heard learned counsel for the parties at length and after due consideration of the facts at hand and the materials placed before this Court, the limited issue that emerges here is, is to what relief the petitioner will be entitled to in the given facts and circumstances of the case. 6. I have heard learned counsel for the parties at length and after due consideration of the facts at hand and the materials placed before this Court, the limited issue that emerges here is, is to what relief the petitioner will be entitled to in the given facts and circumstances of the case. It is undisputed by the parties that the post against which the petitioner had been serving on adhoc basis is a permanent vacancy in the Government Normal Training School, Sohra and the same is yet to be advertised by the District Selection Committee. Pending regular appointment to the said post, as noted above by letter No.DERT/APT/6/2016/33 dated the 20th March, 2017 there is a proposal by the Respondent No. 3 for making appointment on contractual basis. 7. The petitioner has grave personal hardships and difficulties which have been stated in the writ petition and undeniably she had worked in the said post for 7 years though various extensions. 8. The situation being such, this writ petition is hereby disposed of with the following directions:- (i) That, in the event the post is advertised i.e. post of L.D.A. for the Government Normal Training School, Sohra, by the District Selection Committee the petitioner if eligible, in all respects shall be permitted to apply for the same. (ii) In the event that the advertisement is not forthcoming in the near future and contractual appointments are resorted to by the respondents to fill up the post for the time being, the petitioner shall be eligible to be apply and be considered for the same and her past service in the said post be given due weightage. 9. With the following directions, the instant writ petition is accordingly disposed of. 10. No order as to costs.