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Meghalaya High Court · body

2019 DIGILAW 60 (MEG)

Winje Rosalie G. Momin v. State of Meghalaya

2019-03-05

S.R.SEN

body2019
JUDGMENT : 1. WP(C). No. 301 of 2018, WP(C). No. 302 of 2018 and WP(C). No. 306 of 2018 came up for hearing today and are taken up together as all the 3(three) writ petitions are similarly situated. 2. Heard Mr. A.S.Siddiqui, learned counsel on behalf of the petitioners in all the 3(three) writ petitions as well as Mr. N.D.Chullai, learned Addl. AG assisted by Ms. R.Colney, learned GA on behalf of the State respondent. Learned counsel, Mr. K.Paul appeared on behalf of the respondent No. 2, Dr. N.Mozika, learned counsel appeared on behalf of the respondents No. 3 to 9 and 11 to 16 as well as Mr. B.Deb, learned counsel appeared on behalf of the respondents No. 17, 18, 20, 22, 23, 25, 28 & 29. The brief facts of the petitioner’s case in WP(C). No. 301 0f 2018 is that: “The Respondent No. 2 vide advertisement dated 22.11.2006 invited applicant for recruitment to the post of 40 (Forty) vacant post in the Meghalaya Civil Service (MCS) and on 20.12.2006 ADDENDUM it was notified that the advertisement may be read as “The combined MCS and MPS competitive Examination”. The Petitioner herein applied for the said post and cleared the examination along with 72 (Seventy Two) successful candidates bringing to a total of 74 (Seventy Four) successful candidates dated 7.09.2010 out of the 74 (Seventy Four) successful candidates 40 (Forty) person including the Petitioner were appointed to the Post of Extra Assistant Commissioner (EAC) vide appointment Orders dated 1.12.2010 and 11(Eleven) candidates out of the 74 (Seventy Four) successful candidates were appointed and posted as Deputy Superintendent of Police vide Appointment Order dated 8.12.2010. The Respondent No. 1 on 23.05.2011 in the Meghalaya Civil Service (MCS) Department published a Gradation List showing the name of the Petitioner in serial no. 66 and 67 which they deserve, but in the year 2012 there arose 33 (Thirty Three) vacancies in the Meghalaya Civil Service (MCS) and the Respondent No. 1 vide appointment Order dated 8.05.2012 without following the due process of law appointed 33 (Thirty Three) persons which includes those 11 (Eleven) candidates from the Select List who were appointed for Meghalaya Police Service (MPS) dated 8.12.2010. The Petitioner came to learn from the List of MCS profile in Meghalaya State portal that those Officer who have been appointed in the year 2012 were shown to be seniors to the Petitioner which led to filing of Representation to the Respondent no. 1 stating their grievances that those officers cannot be made senior to the Petitioner as they were appointed on 1.12.2010. Despite the representation submitted by the Petitioner the Respondent No. 1 printed and circulated vide memo no. PER. 120/83/438 dated 20.06.2014 the Provisional Gradation List of the MCS and sought for objection if any within 30 (Thirty) days after which the said Gradation List shall be deemed to be final. The Petitioner on receiving the circulation submitted a Representation objecting to the new Gradation List emphasizing that the Officers who have been appointed in the year 2012 cannot be made senior to the Petitioner as they were appointed almost two years earlier i.e. on 1.12.2010. That no positive response came from the Respondent No. 1 in reply to the objections filed by the Petitioner which led to filing of another Representation to the Chief Minister (CM) of Meghalaya on 22.04.2017 but the same was rejected on the ground that the Gradation List is based on the merit list as provided under Rule 16 (4) of the MCS Rules 1975. Hence This Petition.” The brief facts of the petitioner’s case in WP(C). No. 302 0f 2018 is that: “The Respondent No.2 vide advertisement dated 2.11.2006 invited applications for recruitment to the 40 (Forty) vacant post in the Meghalaya Civil Service (MCS) and on 20.12.2006 ADDENDUM it was notified that the advertisement may be read as “The combined MCS and MPS competitive Examination”. The Petitioner herein applied for the said post and cleared the examination along with 73 (Seventy Three) successful candidates bringing to a total of 74 (Seventy Four) successful candidates dated 7.09.2010. Out of the 74 (Seventy Four) successful candidate 40 (Forty) person including the petitioner was appointed to the Post of Extra Assistant Commissioner (EAC) East Khasi Hills District, Shillong being the candidate from the “Other Tribe” subject to the outcome of the W.P. (C) No. 291 (SH)/2010 and Misc. Out of the 74 (Seventy Four) successful candidate 40 (Forty) person including the petitioner was appointed to the Post of Extra Assistant Commissioner (EAC) East Khasi Hills District, Shillong being the candidate from the “Other Tribe” subject to the outcome of the W.P. (C) No. 291 (SH)/2010 and Misc. case no 415 (SH)/2010 between Smti Swarnali Basumatary versus State of Meghalaya before the Hon’ble High Court vide Appointment Order dated 1.12.2010 and 11 (Eleven) candidates out of the 74 (Seventy four) successful candidates were appointed and posted as Deputy Superintendent of Police vide Appointment Order dated 8.12.2010. The Respondent No. 1 on 23.05.2011 in the Meghalaya Civil Service (MCS) Department published a Gradation list showing the names of the petitioner in serial no. 70 which the Petitioner is deserving, but in the year 2012 there arose 33 (Thirty Three) vacancies in the Meghalaya Civil Service (MCS) and the Respondent No. 1 vide Appointment Order dated 8.05.2012 without following the due process of law appointed 33 (Thirty Three) persons which includes those 11 (Eleven) candidates from the select List who were appointed for Meghalaya Police Service (MPS) dated 8.12.2010. The Petitioner came to learn from the List of MCS Profile in Meghalaya State Portal that those Officers who have been appointed in the year 2012 were shown to be seniors to the Petitioner which led to filing of Representation to the Respondent no. 1 stating their grievances that those Officers cannot be made senior to the Petitioner as they were appointed on 1.12.2010. Despite the Representation submitted by the Petitioner the respondent No. 1 printed and circulated vide memo no. PER. 120/83/438 dated 20.06.2014 the Provisional Gradation List of the MCS and sought for objection if any within 30 (Thirty) days after which the said Gradation List shall be deemed to be final. The Petitioner on receiving the circulation submitted a Representation objecting to the new Gradation List emphasizing that the Officers who have been appointed in the year 2012 cannot be made senior to the Petitioner as they were appointed almost two years earlier i.e. on 1.12.2010. The Petitioner on receiving the circulation submitted a Representation objecting to the new Gradation List emphasizing that the Officers who have been appointed in the year 2012 cannot be made senior to the Petitioner as they were appointed almost two years earlier i.e. on 1.12.2010. That no positive response came from the Respondent No. 1 in reply to the objections filed by the Petitioner which led to another filing of a Representation to the Chief Minister (CM) of Meghalaya on 22.04.2017 which was rejected on the ground that the Gradation list is prepared as per Rule 16(4) of the MCS Rules 1975 i.e. based on the Merit list of the MPSC. Hence This Petition”. The brief facts of the petitioner’s case in WP(C). No. 306 of 2018 is that: “The Respondent No. 2 vide advertisement dated 22.11.2006 invited applicant for recruitment to the post of 40 (Forty) vacant post in the Meghalaya Civil Service (MCS) and on 20.12.2006 ADDENDUM it was notified that the advertisement may be read as “The combined MCS and MPS competitive Examination”. The Petitioner herein applied for the said post and cleared the examination along with 73 (Seventy Three) successful candidates bringing to a total of 74 (Seventy Four) successful candidates dated 7.09.2010. Out of the 74 (Seventy Four) successful candidates 40 (Forty) person including the Petitioner were appointed to the Post of Extra Assistant Commissioner (EAC) vide appointment Orders dated 1.12.2010 and 11(Eleven) candidates out of the 74 (Seventy Four) successful candidates were appointed and posted as Deputy Superintendent of Police vide Appointment Order dated 8.12.2010. The Respondent No. 1 on 6.06.2011 in the Meghalaya Civil Service (MCS) Department published a Gradation List showing the name of the Petitioner in serial no. 65 which he deserve, but in the year 2012 there arose 33 (Thirty Three) vacancies in the Meghalaya Civil Service (MCS) and the Respondent No. 1 vide appointment Order dated 8.05.2012 without following the due process of law appointed 33 (Thirty Three) persons which includes those 11 (Eleven) candidates from the Select List who were appointed for Meghalaya Police Service (MPS) dated 8.12.2010. The Petitioner came to learn from the List of MCS profile in Meghalaya State portal that those Officer who have been appointed in the year 2012 were shown to be seniors to the Petitioner which led to filing of Representation to the Respondent no. The Petitioner came to learn from the List of MCS profile in Meghalaya State portal that those Officer who have been appointed in the year 2012 were shown to be seniors to the Petitioner which led to filing of Representation to the Respondent no. 1 stating his grievance that those officers cannot be made senior to the Petitioner as they were appointed on 1.12.2010. Despite the representation submitted by the Petitioner the Respondent No. 1 printed and circulated vide memo no. PER. 120/83/438 dated 20.06.2014 the Provisional Gradation List MCS and sought for objection if any within 30 (Thirty) days after which the said Gradation List shall be deemed to be final. The Petitioner on receiving the circulation submitted a Representation objecting to the new Gradation List emphasizing that the Officers who have been appointed in the year 2012 cannot be made senior to the Petitioner as they were appointed almost two years earlier i.e. on 1.12.2010. That no positive response came from the Respondent No. 1 in reply to the objections filed by the Petitioner which led to another filing of a representation to the Chief Minister (CM) of Meghalaya on 22.04.2017 but the same was rejected on the ground that the Gradation List is based on the merit list as provided under Rule 16 (4) of the MCS Rules, 1975. Hence This Petition.” 3. Heard Mr. A.S. Siddiqui, learned counsel for the petitioners who argued that the seniority of the petitioners was not maintained and their juniors were promoted, hence these instant writ petitions. 4. On the other hand, Mr. N.D. Chullai, learned Addl. AG assisted by Ms. R.Colney, GA submits that as per the gradation list prepared by the Meghalaya Public Service Commission, it is clearly found that the petitioners were below in rank than the respondents. Learned Addl. AG also submits that the petitioners had submitted a representation and the same was rejected and now after almost four years, they have approached the Court. He also contended that the respondents-Officers are much better in merit than the petitioners. In support of this submission, he also relied on para 2 of the Hon’ble Supreme Court judgment (1975) 1 SCC 152 P.S. Sadasivaswamy Vrs. State of Tamil Nadu. 5. After hearing the submissions advanced by the learned counsels for the parties, I find that the Meghalaya Public Service Commission has considered the cases on the basis of merit. In support of this submission, he also relied on para 2 of the Hon’ble Supreme Court judgment (1975) 1 SCC 152 P.S. Sadasivaswamy Vrs. State of Tamil Nadu. 5. After hearing the submissions advanced by the learned counsels for the parties, I find that the Meghalaya Public Service Commission has considered the cases on the basis of merit. In such circumstances, I am unable to interfere with the petitions. It is a time that merit should be given first preference than seniority. Seniority to be considered only if one has proved his merit. Besides that, para 2 of the judgment quoted above is reproduced herein below: “2. The main grievance of the appellant is that the second respondent who was junior to him as Assistant Engineer was promoted as Divisional Engineer in 1957 by relaxing the relevant rules regarding the length of service necessary for promotion as Divisional Engineer and that his claim for a similar relaxation was not considered at that time. The learned Judge of the Madras High Court who heard the writ petition was of the view that the relaxation of the rules in favour of the second respondent without considering the appellant's case was arbitrary. In view of the statement on behalf of the Government that such relaxation was given only in the case of overseas scholars, which statement was not controverted, it is not possible to agree with the view of the learned Judge. Be that as it may, if the appellant was aggrieved by it he should have approached the Court even in the year 1957 after the two representations made by him had failed to produce any result. One cannot sleep over the matter and come to the Court questioning that relaxation in the year 1971. There is the further fact that even after respondents Nos. 3 and 4 were promoted as Divisional Engineers over the head of the appellant he did not come to the Court questioning it. There was a third opportunity for him to have come to the Court when respondents Nos. 2 to 4 were again promoted as Superintending Engineers over the head of the appellant. After fourteen long years because of the tempting prospect of the Chief Engineership he has come to the Court. In effect he wants to unscramble a scrambled egg. There was a third opportunity for him to have come to the Court when respondents Nos. 2 to 4 were again promoted as Superintending Engineers over the head of the appellant. After fourteen long years because of the tempting prospect of the Chief Engineership he has come to the Court. In effect he wants to unscramble a scrambled egg. It is very difficult for the Government to consider whether any relaxation of the rules should have been made in favour of the appellant in the year 1957. The conditions that were prevalent in 1957 cannot be reproduced now. In any case as the Government had decided as a matter of policy, as they were entitled to do, not to relax the rules in favour of any except overseas scholars it will be wholly pointless to direct them to consider the appellant’s case as if nothing had happened after 1957. Not only respondent No. 2 but also respondents Nos. 3 and 4 who were the appellant's juniors became Divisional Engineers in 1957 apparently on the ground that their merits deserved their promotion over the head of the appellant. He did not question it. Nor did he question the promotion of his juniors as Superintending Engineers over his head. He could have come to the Court on every one of these three occasions. A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extra-ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore have been dismissed in limine. Entertaining such petitions is a waste of time of the court. The petitioner's petition should, therefore have been dismissed in limine. Entertaining such petitions is a waste of time of the court. It clogs the work of the Court and impedes the work of the court in considering legitimate grievances as also its normal work. We consider that the High court was right in dismissing the appellant's petition as well as the appeal.” 6. Therefore, after considering the records before me and the submissions advanced by the learned counsels for the parties as well as the judgment relied by the State respondent, I find that the petitioners has approached the Court after a long gap of time and from the angle of merit also, it appears from the gradation list prepared by the Meghalaya Public Service Commission that the petitioners are below in rank. Besides that, in my view, merit should be given priority. Therefore, I come to the conclusion that all these three petitions cannot be considered. 7. Accordingly, by this common judgment, all the 3(three) writ petitions i.e. WP(C). No. 301 of 2018, WP(C). No. 302 of 2018 and WP(C). No. 306 of 2018 are dismissed and stands disposed of.