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2019 DIGILAW 153 (MEG)

Heisar Passah v. State of Meghalaya

2019-05-14

H.S.THANGKHIEW

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JUDGMENT : 1. Heard Mr. M.F. Qureshi, learned counsel for the petitioner, Mr. K.P. Bhattacharjee, learned GA for the respondent No. 1-3 and Mr. L. Shongwan, learned counsel for the respondent No. 4. 2. The brief facts leading to the filing of the writ petition is that the petitioner had completed the course of Ophthalmic Assistant in the year 2004 on being nominated by the Health & Family Welfare Department, Government of Meghalaya. On 02.02.2015, he had submitted an application in a prescribed form for the post of Ophthalmic Assistant on having information about the vacancy of a post and the same has been kept pending on the ground that there was no vacancy. The further case of the petitioner is that while he has been made to wait for almost 15(fifteen) years for the post of Ophthalmic Assistant while the respondent No. 4 a non-technical employee was given appointment to the post of Ophthalmic Assistant under the District Medical & Health Officer, West Jaintia Hills, Jowai on 27.05.2010. As such, stating that he has been discriminated, inasmuch as, he has completed his diploma course of Ophthalmic Assistant and not given employment he has filed the instant writ petition before this Court. 3. Learned counsel for the petitioner submits that in the backdrop of the facts of the case, a mandamus should be issued, considering and recommending the petitioner for appointment to the post of Ophthalmic Assistant and also for setting aside the appointment of unqualified candidates who are holding the post of Ophthalmic Assistant under the State respondents such as the respondent No. 4. He further submits that the age requirement be relaxed so as to enable the petitioner to be eligible for future appointment. 4. Learned GA appearing on behalf of the respondent No. 1-3 has vehemently opposed the submissions made by the learned counsel for the petitioner, firstly, on the ground of delay. He submits that the petitioner having slept over his rights from the time of his qualification in the year 2004, deserves no consideration and furthermore on the date of application, on 02.02.2015 there were no vacant post of Ophthalmic Assistant. He submits that the petitioner having slept over his rights from the time of his qualification in the year 2004, deserves no consideration and furthermore on the date of application, on 02.02.2015 there were no vacant post of Ophthalmic Assistant. As such, he submits that in view of the petitioners conduct, that is the delay and laches, and further the unavailability of a post, for which the petitioner could have been considered against, the writ petition, deserves to be dismissed moreso, on the point of delay. He further submits that nomination for study or training of Ophthalmic Assistant by the State respondents does not create any vested right for appointment against any vacant post and if the same is to be made, it is only through a selection process. 5. Learned counsel appearing on behalf of the respondent No. 4 submits that the respondent No. 4 had been appointed since the year 2000 on being found suitable by the District Selection Committee and was serving as Chowkidar, but thereafter based on her excellent performance rendered through her tenure of service, she was appointed to the post of Ophthalmic Assistant on 27.05.2010. He further submits that the appointment of the respondent No. 4 was with the understanding that she would be sent for training to further qualify herself for the post. 6. Having heard the learned counsels for the parties and considered the materials on record, though the learned counsel for the petitioner has averred that the petitioner applied for the post of Ophthalmic Assistant since 2004, there is no material on record or copy of an application to substantiate this fact and the only application that is on record before this Court is dated 02.02.2015 i.e. approximately 11(eleven) years after the petitioner completed the training of Ophthalmic Assistant. It is undisputed that at the time of the said application, there was no vacancy available to the post of Ophthalmic Assistant to enable the respondent to consider the case in any manner. Be that as it may, the very fact that the petitioner has slept over his rights for 11(eleven) years and has not agitated them or cared to appear in any other selection process speaks volumes about his conduct and sincerity about being appointed as Ophthalmic Assistant. 7. Be that as it may, the very fact that the petitioner has slept over his rights for 11(eleven) years and has not agitated them or cared to appear in any other selection process speaks volumes about his conduct and sincerity about being appointed as Ophthalmic Assistant. 7. Coming to the case of respondent No. 4, the fact that the respondent being appointed in the year 2000 as Chowkidar on being selected by the District Selection Committee and thereafter in 2010 as Ophthalmic Assistant is also not refuted or disputed. However, the fact that the respondent No. 4 who was appointed as Chowkidar has been serving against the post of Ophthalmic Assistant for the past 9(nine) years on internal arrangement made by the respondent, is disturbing to note, and casts doubts on the manner and method of appointment adopted by the Respondent No. 1 to 3. The other factor that is to be taken into consideration that goes against the petitioner is that, nomination of a candidate to undergo training does not guarantee automatic appointment by the State respondents when a vacancy arises. 8. In view of the above said facts and circumstances and taking into account the long and unexplained delay, which can be solely attributed to the petitioner, the same cannot be condoned and as such no relief can be granted to the writ petitioner at this stage and the writ petition is accordingly dismissed on the ground of delay and laches. 9. Before parting with the record, it is relevant to note herein that as observed earlier, it is disturbing to note that appointments are made against posts where training is required, to persons who are not qualified or trained for the same. It is understood that the State respondents henceforth, will take steps to ensure that training be imparted to such persons before they are appointed or they be sent for training to qualify themselves. Further, it is expected that the State respondents adopt a proper method in considering appointments to such posts and not resort to arbitrary methods. 10. With the said directions and observations, the writ petition is disposed of. 11. No order as to costs.