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Meghalaya High Court · body

2019 DIGILAW 108 (MEG)

Ermelinda Rongrin v. State of Meghalaya

2019-04-05

MOHAMMAD YAQOOB MIR

body2019
JUDGMENT : 1. Admitted position as emerged from the records and the submissions made by the learned counsel for the petitioner as well as respondents No. 1 to 4 is that, vide Office Order No. 18 of 2005-06 dated 01.09.2005 issued by the Superintending Engineer, PWD (Rds.) (respondent No. 4) petitioner was appointed as Peon against the vacanct post w.e.f. 08.09.2005 in the scale of pay Rs. 2440-46-2680-EB-50-3080-60-3680/- per month. 2. The respondent No. 5 was appointed as Sweeper in the same pay scale vide order No. 20 of 2006-07 dated 16.11.2006 then, vide Office Order No. 19 of 2009-10 dated 30.06.2009 was shifted temporarily to the post of Peon in the same scale of pay. 3. Vide another Office Order No. 57 of 2010-11 as against the vacancy of Lower Division Assistant (LDA) as accrued due to the demise of Shri Pulen Sarma, respondent No. 5 was allowed to officiate w.e.f. 09.03.2011 in the scale of pay of Rs. 9200-240-10640-EB-260-12720-300-15720/- per month until further orders. Aggrieved thereof, petitioner filed a representation before the respondent authorities highlighting therein, that she being senior should have been allowed to officiate, further to consider her for promotion to the post of LDA as the petitioner possessed the requisite qualification i.e., Matriculation, the said representation remained pending. However, vide communication No. PW/CE/ESTT/12/2012/30 dated 16.07.2012 addressed to the respondent No. 4 (Superintending Engineer) by the Administrative Officer, PWD (Rds.), Meghalaya, Shillong, it has been conveyed that in the Minutes of the DPC Smti. E. Rongrin (petitioner) though qualified for the post but is inexperienced in handling different works of the Establishment Branch like drafting letters, presenting cases, etc. which an LDA is supposed to do. However, the DPC did not indicate whether the inexperience or incapability of Smti. E. Rongrin has been, recorded or not, in the ACRs and as to whether ACRs have been examined or not by the DPC as the same do not appear to have been placed before the DPC. Further that while considering the case for promotion, the DPC has to examine the instructions contained in letter No. PER.28/88/4 dated 24.03.1988 in which it has been specified that seniority will be an important factor with due regard to merit. The comments were to be submitted. It appears that no action has been taken and the matter has remained pending. Further that while considering the case for promotion, the DPC has to examine the instructions contained in letter No. PER.28/88/4 dated 24.03.1988 in which it has been specified that seniority will be an important factor with due regard to merit. The comments were to be submitted. It appears that no action has been taken and the matter has remained pending. Petitioner feeling aggrieved of the inaction on the part of the official respondents has filed the instant petition projecting therein that the petitioner being senior, possesses the requisite qualification and merit deserves to be promoted in accordance with the rules as were in vouge at the time vacancy accrued in the year 2011. 4. It is an admitted fact that there were no rules in place, as a result whereof, Meghalaya Ministerial District Establishment Service Rules (Draft Rules) were followed. As per the Draft Rules, the mode and method for filling up the post of LDA is by direct recruitment and promotion in the ratio of 9:1. The affidavit-in-opposition as filed by the respondents reveals that the case of the petitioner and that of respondent No. 5 was placed before the DPC for considering them for promotion as against the said post of LDA. The DPC had decided to recommend respondent No. 5 for promotion to the post of LDA. Subsequently, an additional affidavit has been filed by respondents No. 3 and 4 stating therein that as per the Draft Meghalaya Ministerial District Establishment Rules the post of LDA is to be filled up by direct recruitment and promotion amongst the senior most Grade IV staff in the ratio of 9:1. The single post of LDA has to be filled up by direct recruitment as the ratio is 9:1 in any year. Respondent No. 5 has been allowed to continue on officiating basis as LDA as she was found qualified than the petitioner, then the petitioner has verbally admitted that she was not capable of performing the duties of an LDA which fact is categorically denied by the petitioner in the rejoinder affidavit. 5. Now, the rules have been finalised and notified vide No. PER (AR) 60/99/254 dated 04.09.2017 which have come into force from the date of its publication in the Official Gazette. As per the said rules, the method for appointment to the post of LDA is 9 by direct recruitment and 1 by promotion. 6. 5. Now, the rules have been finalised and notified vide No. PER (AR) 60/99/254 dated 04.09.2017 which have come into force from the date of its publication in the Official Gazette. As per the said rules, the method for appointment to the post of LDA is 9 by direct recruitment and 1 by promotion. 6. The contention of the learned counsel for the petitioner is that the recruitment to the post of LDA has to be governed by the rules as were in vogue at the time vacancy accrued i.e., in the year 2011 since no rules were in place, therefore, executive instructions had been issued providing that in the departments where the service rules were yet to be framed, it has been considered expedient that the constitution of Departmental Promotion Committee for the purpose of consideration of suitable officers/staff for promotion to various services/posts (both gazetted and non-gazetted) the scale of which is below Rs. 4,150/- (Pre-revised) shall be done in a uniform manner. 7. It is not clear from the records as to whether the post of LDA prior to the framing of rules and at the time of issue of the Executive Instructions was a promotional post or not. It is trite that when a vacancy arise, it has to be filled up in accordance with the rules as were applicable and in force at the relevant time but in the instant case, to ask the respondents to consider the case of the petitioner and respondent No. 5 afresh for promotion is impermissible because it is not clear as to whether LDA post at the relevant time was a promotional post or direct recruitment post. The Draft Rules as were followed provides the ratio of 9:1 but those rules as a matter of practice, were followed but those rules have no statutory backing. 8. For the stated reasons, petition is disposed of with a direction to the respondent authorities to initiate process for recruitment of the said post (LDA). 9. In case petitioner and respondent No. 5 choose to compete for the post, they shall be at liberty to apply through proper channel, if applied their applications shall be considered and for relaxation of age resort shall be had to rule 20 of the Rules. 9. In case petitioner and respondent No. 5 choose to compete for the post, they shall be at liberty to apply through proper channel, if applied their applications shall be considered and for relaxation of age resort shall be had to rule 20 of the Rules. The exercise aforesaid shall be undertaken and completed preferably within a period of three months from today and in case it is not completed, the officiating appointment of respondent No. 5 shall cease if not already discontinued. 10. Disposed of as above.