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2019 DIGILAW 161 (MEG)

Subastinza T. Sangma v. State Of Meghalaya

2019-05-21

H.S.THANGKHIEW

body2019
JUDGMENT : 1. The petitioner in the instant case is seeking consideration of his case for appointment to a Group D post, as directed by the order of this Court dated 26th July, 2012 passed in WP(C) (SH) No. 191 of 2011. The facts leading to the instant writ petition, is that the petitioner has been working as a Casual Worker in the Social Forestry Division, Williamnagar, since the year 1992, and under the Scheme known as "Meghalaya Regular Casual Worker Scheme, 1996" was conferred the status of a Regular Casual Worker on 15th December, 2003. The further case of the petitioner is that he has also been working as Park Mali, Plantation Mali, Plantation Chowkidar, from time to time, against sanctioned posts, but, he was however not promoted to any Group D post. He had earlier approached this Court vide WP(C) (SH) No. 191 of 2011 and this Court while disposing of the same vide order dated 26th July, 2012, had observed at Paras 6 and 7 as follows:- "6. I have heard the learned counsel appearing for the parties at length. Also perused the materials available on record alongwith the pleadings set forth by the parties. The statements made on oath in the affidavit-in-opposition would reveal that as and when vacancy arises in the Group D post due to death or retirement etc., the same is being filled up taking into consideration the length of service, seniority and efficiency subject to note given below in the final seniority list of RCW which reads as thus: - "Above seniority has been fixed after consulting all available records and is final. In case any vacancy arises in the division the vacancy may be filled up purely on efficiency and seniority basis. In case any casual workers performance is not good he shall not be considered for any promotion or any vacant post whatsoever. The prerogative of judgment of performance will lie fully with the Divisional Forest Officer. Efficiency of the above casual workers will be ascertained at the end of every calendar year for future promotion/appointment in the vacant posts (if any)." 7. The prerogative of judgment of performance will lie fully with the Divisional Forest Officer. Efficiency of the above casual workers will be ascertained at the end of every calendar year for future promotion/appointment in the vacant posts (if any)." 7. Hence, considering the matter in its entirety and the note appended in the final seniority list as quoted hereinabove, the authority is directed to consider the case of the petitioner for promotion to Group D post as and when vacancy arises considering his efficiency and seniority etc." 2. The petitioners specific case in the instant writ petition is that, there exist vacant posts, but the respondents in spite of the order of this Court are not considering him for promotion to a Group D post. 3. I have heard learned counsel for the parties. 4. Mr. P.T. Sangma, learned counsel for the petitioner submits that after the order of this Court, the petitioner had approached the concerned authorities by submitting an application along with copy of the order for consideration of his promotion but the Divisional Forest Officer, Social Forestry Division, East Garo Hills, Williamnagar (Respondent No. 5) has kept the matter pending without initiating any action. He also submits that the Deputy Commissioner, East Garo Hills District, Williamnagar vide letter dated 29th January, 2013 had also requested the respondent No. 5 to appoint the petitioner. The learned counsel also submitted that the respondent No. 5 had written to the respondent No. 3, stating that the petitioner was repeatedly representing, but since there was no vacant Group D post vacant, had requested that sanction of a post be made by name so as to accommodate the petitioner. The learned counsel further submits that the petitioner had even addressed a legal notice to the respondent No. 5 on 1st November, 2017 for consideration for promotion, but till date, he is yet to be accommodated or promoted to a Group D post. As such he submits, he is compelled to approach this Court again for redressal of his grievances. 5. Mr. H. Kharmih, learned GA for the State respondents submits that it is a fact that this Court had directed the respondents to consider the case of the petitioner for promotion to Group D post as and when vacancy occurs with due consideration being given to efficiency and seniority. 5. Mr. H. Kharmih, learned GA for the State respondents submits that it is a fact that this Court had directed the respondents to consider the case of the petitioner for promotion to Group D post as and when vacancy occurs with due consideration being given to efficiency and seniority. He however, also submits that as per the interse-seniority list, at present, the petitioner is not the senior most Regular Casual Worker, inasmuch as, regular appointments to group D posts from amongst the eligible RCWs is as per seniority apart from other factors. He submits that due to present un-availability of a vacant post to accommodate the petitioner, his case shall be considered as and when vacancy arises and the petitioner comes within the zone for consideration as per his seniority position. He further submits that presently as per the latest seniority list dated 10th April, 2018, the petitioners name appears at Sl. No. 4 and there are three other Regular Casual Workers senior to him who are yet to be appointed to Group D posts under the Scheme. He submits that the allegation that the matter has been kept pending without complying to the Courts order is factually incorrect. He further reiterated that appointment of the petitioner to a regular post is subject to availability of vacancy, efficiency and seniority. 6. The learned GA for the State respondents submits that the earlier appointment of three vacant posts of Forest Guard, and not six as averred, by the petitioner had been filled up in accordance with the provision contained in the Office Memorandum dated 20th April, 2011, (Annexure IV of the affidavit-in-opposition) and moreover the same were not Group D posts. He further draws the Courts attention to Para 13 of the affidavit-in-opposition wherein detailed recent appointments to Group D posts have been shown. Para 13 of the said affidavit is quoted herein below:- "13. That the averment made at paragraph 10 of the petition are incorrect and without any documentary proof. In fact, appointment to the Group-D posts under the Division as mentioned by the petitioner has been made as follows: i. On promotion of Shri Sugensing Sangma, Park Mali as Forest Guard in 2011, Shri. Bluebell Sangma, the senior most RCW was appointed as Park Mali in 2011. ii. On promotion of Shri Franklin Sangma, Park Mali as Forest Guard in 2011, Smti. ii. On promotion of Shri Franklin Sangma, Park Mali as Forest Guard in 2011, Smti. Nanjak Marak, was appointed as Park Mali on the recommendation of the District Selection Committee in 2012. iii. Vacancy created due to retirement of Shri. Orendro Marak, Park Chowkidar on 31st Aug, 2013 was filled up by appointment of Shri Hendrick Momin, the senior most RCW on 1st Feb, 2014. iv. Vacancy caused due to the death of Shri Boruah Sangma, Plantation Mali on 7.11.2013, was filled up by appointment of Shri Minalson Sangma, the senior most RCW next to Shri Hendrick Momin on 3.2.2014. v. Vacancy of the post of Plantation Chowkidar created on promotion of Shri Lupinson Sangma as Forest Guard in 2014, was intimated to District Selection Committee for maintaining the percentage of 50:50 of Direct Recruits and Promotee as per the existing recruitment rules. vi. On promotion of Shri Bluebell Sangma, Park Mali as Forest Guard in 2016, Shri. Prittingson Sangma, the senior most RCW was appointed as Park Mali on 17th March, 2016. vii. The vacant post created on promotion of Smt Nanjak Marak, Park Mali as Forest Guard in 2016 has been reserved for the purpose of appointment of land owner in lieu of land donated to the Department as per the existing Government policy. Therefore from the facts stated above, there is no vacant post available at the moment for the purpose of appointment of Regular Casual Workers under the above said Scheme in the office of the Divisional Forest Officer, Social Forestry Division, Williamnagar Respondent No. 5." 7. The learned GA for the State respondent lastly submits that the petitioners case is being actively considered, and even if there arises any vacant post at any moment, he has to wait his turn as per his seniority position to be considered. 8. I have heard learned counsel for the parties and considered the entire aspects of the case. The petitioner is aggrieved and has filed the instant petition in this second round of litigation because he is still not appointed to Group D post in spite of the order of this Court dated 26th July, 2012 passed in WP(C) (SH) No. 191 of 2011. He had contended that the respondents were not promoting or appointing him to Group D post in spite of there being vacant posts available. He had contended that the respondents were not promoting or appointing him to Group D post in spite of there being vacant posts available. On perusal of the order of this Court dated 26th July, 2012, it can be clearly seen, that the direction contained therein, is for consideration of the petitioners case for appointment/promotion to a suitable post, as and when, vacant posts are available. 9. As submitted by the learned GA for the State respondents, it cannot be disputed that the seniority position of the writ petitioner presently, as per the latest gradation list dated 10th April, 2018 is at Sl. No. 4. The other three persons (RCWs) senior to him were granted Regular Casual Worker status in the year 2000 whereas the writ petitioner was granted Regular Casual Worker status on 15th December, 2003. I am therefore, in agreement with the submissions of the learned GA for the State respondents that appointment/promotion to Group D post has not yet been afforded to the petitioner in view of non-availability of vacant post as against his seniority, and moreover, appointment had to be first made to the senior most Regular Casual Worker as per the gradation list, though with certain conditions. The latest gradation (Provisional) dated 10th April, 2018 which shows the petitioner at Sl. No. 4 is quoted herein below:- "GRADATION LIST OF REGULAR CASUAL WORKERS UNDER EAST GARO HILLS SOCIAL FORESTRY DIVISION WILLIAMNAGAR. Sl.No. Name of the Muster Roll/RCW Date of Birth Initial date of engagement in the division RCW status Date of Conferment of RCW 1 2 3 4 1, Shri. Mohendro Rabha, RCW 01-06-1967 01-01-1989 01-01-1999 10-11-2000 2, Shri Nidhan Rabha, RCW 07-02-1969 01-01-1989 01-01-1999 10-11-2000 3, Shri Arnithson R. Marak, RCW 02-11-1973 01-02-1990 01-02-2000 10-11-2000 4, Shri Subastinza T. Sangma, RCW 29-01-1971 01-07-1992 01-07-2002 15-12-2003 5, Shri Sikander Ch. Momin, RCW 01-01-1970 01-10-1992 01-10-2002 19-01-2007 6, Shri Mojipson Momin, RCW 10-04-1970 01-10-1992 01-10-2002 15-12-2003 7, Shri Biswanath Sangma, RCW 06-02-1960 01-04-1993 01-04-2003 15-12-2003 8, Shri Dhirendro R. Marak, RCW 01-08-1968 01-07-1993 01-07-2003 15-12-2003 9, Shri Webster Marak, RCW 15-03-1965 01-08-1993 01-08-2003 19-01-2007 10, Smt. Seroline Sangma, RCW 25-10-1964 01-11-1994 01-11-2004 19-01-2007 11, Shri Ramseng N. Sangma, RCW 01-01-1976 01-10-1996 01-10-2006 19-01-2007 12, Smt. Presaline T. Sangma, RCW 16-08-1967 01-01-1998 01-01-2008 10-03-2009 13, Shri Krebing Momin, RCW 31-12-1970 01-04-1998 01-04-2008 10-03-2009 14, Shri Bredilson Marak, RCW 21-04-1974 01-01-2001 01-01-2011 11-03-2015 15, Smt. Kremilla D. Shira, RCW 12-03-1979 01-05-2001 01-05-2011 11-03-2015 16, Shri Sexter G. Momin, RCW 11-03-1979 02-12-2002 02-12-2012 11-03-2015 17, Smt. Theresa Ch. Marak, RCW 15-06-1972 01-09-2005 01-09-2015 15-07-2016 N.B. The above Gradation list has been fixed provisionally in case any incumbent has any objection about his/her date of appointment to the Division he/she should submit his/her prayer with justification within fifteen(15) days from the date of issue of this letter. In future in case of any vacancy arises in the division the vacancy will be filled up purely on efficiency and seniority basis. In case any casual workers performance is not good he/she will not be considered for any promotion or any vacant post whatsoever. The prerogative of judgment of performance will lie fully with the Divisional Forest Officer. (Smt. R.K. Sangma, MFS) Divisional Forest Officer, East Garo Hills Social Forestry Division, Williamnagar." 10. In view of the stated facts and circumstances of the case, the petitioner cannot be said to have been deprived illegally of appointment against a Group D or that the orders of this Court have not been complied with. 11. This writ petition is therefore disposed of with a direction reiterating the order dated 26th July, 2012 passed in WP(C) (SH) No. 191 of 2011, that the case of the petitioner be considered for promotion to Group D post as and when vacancy arises considering his efficiency and seniority etc. 12. Disposed of accordingly, No order as to costs.