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2019 DIGILAW 70 (MEG)

Vaneecha M. Khongwir v. State of Meghalaya

2019-03-14

MOHAMMAD YAQOOB MIR

body2019
JUDGMENT : 1. Petitioner has prayed for setting aside the appointment letters No. M/DS.177/86/267 dated 09.01.2003, M/DS.177/86/295 dated 13.05.2003, M/DS.177/86/322 dated 25.08.2003, M/DS.177/86/362 dated 14.10.2003, M/DS.177/86/407 dated 23.02.2004 and M/DS 177/86/438 dated 04.04.2005 in terms whereof respondents No. 4 to 9 on compassionate grounds have been appointed as Sub-Inspectors of Supply in the respondent Department (Meghalaya Food Civil Supplies and Consumer Affairs) Meghalaya, with an alternative prayer for setting aside the Gradation List of Sub-Inspectors of Supply published vide Office Order No. DSCA.97/2007/157 dated 01.05.2005 so as to place her in seniority above the respondents No. 4 to 9. 2. Petitioner along with 12 others on proper selection and consequent recommendation of the Meghalaya Public Service Commission were appointed as Sub-Inspectors of Supply vide order dated 22.12.2005. 3. The conditions of the appointment orders of both petitioner and respondents No.4 to 9 are similar. 4. The respondent Department has issued a Gradation List of Sub- Inspectors of Supply on 15.05.2007 wherein, petitioner figures at Sl. No. 43 whereas, respondents No. 4 to 9 respectively, figure at Sl. Nos. 32 to 37. The said Gradation List has been prepared in the order of seniority based on the date of appointment. Petitioner on 12.06.2007 had submitted a representation before the Additional Director, Food Civil Supplies and Consumer Affairs, Meghalaya claiming therein that the respondents No.4 to 9 were not included in the Meghalaya Public Service Commission merit list so cannot rank senior to her. The said representation appear not to have been pursued. 5. The respondent Department issued an updated Gradation List of Sub- Inspectors of Supply on 21.05.2014 wherein, petitioner figures at Sl. No. 23 whereas, respondents No. 4 to 9 figure at Sl. Nos. 12 to 17. Again in the year 2015 vide order dated 01.05.2015, updated Gradation List of Sub-Inspectors of Supply has been issued wherein, petitioner figures at Sl. No. 15 whereas, respondents No. 4 to 9 figure at Sl. Nos. 4 to 9. 6. Petitioner filed objections claiming that she should be shown senior to respondents No. 4 to 9, same has not been decided. 7. Petitioner has obtained information under Right to Information Act from the Public Information Officer of the Food Civil Supply and Consumer Affairs, Meghalaya wherein, it has been mentioned that the post of Sub- Inspector of Supply is an executive post. 7. Petitioner has obtained information under Right to Information Act from the Public Information Officer of the Food Civil Supply and Consumer Affairs, Meghalaya wherein, it has been mentioned that the post of Sub- Inspector of Supply is an executive post. Further obtained information that respondents No. 4 to 9 were appointed on compassionate ground thereafter, has filed the instant petition. 8. It is contended that the respondents No. 4 to 9 on compassionate ground could be appointed only against Class III or Class IV posts as is envisaged by the scheme for appointment on compassionate ground notified vide Office Memorandum issued by the Government of Meghalaya, Personnel & Admv. Reforms (B) Department under No. PER (AR) 154/78/147 dated 11.12.1984, therefore, appointment of respondents No. 4 to 9 against the post of Sub-Inspector of Supply was unwarranted. Meeting this contention of the learned counsel for the petitioner, learned counsel for the respondents No.1 to 3 submits that the appointment of respondents No. 4 to 9 has been challenged by medium of this petition after a gap of 13 years viz-a-viz respondents No. 4 to 7, 12 years viz-a-viz respondent No. 8 and 11 years viz-a-viz respondent No. 9, therefore, her challenge to the appointment of respondents No. 4 to 9 is hit by laches. 9. In addition, the original Gradation List had been issued in the year 2007 which has not been challenged. The said Gradation List has been updated in the year 2014 and thereafter, in the year 2015. With all calculations petitioner has challenged the Gradation List of 2015 which was simply an updated Gradation List, on this count also petition is hit by laches. 10. The next contention is that respondents No. 4 to 9 could be appointed on compassionate basis against Class III or Class IV posts as provided by the scheme issued vide O.M. No. PER (AR) 154/78/147 dated 11.12.1984. It is also clear from the scheme that the appointment on compassionate ground could be made against the post which is at the lowest rung of the ladder. The post of Sub-Inspector of Supply is a Grade III post which is the lowest rung of the ladder of Sub-Inspector Staff. It is also clear from the scheme that the appointment on compassionate ground could be made against the post which is at the lowest rung of the ladder. The post of Sub-Inspector of Supply is a Grade III post which is the lowest rung of the ladder of Sub-Inspector Staff. Though in reply to RTI the post of Sub- Inspector of Supply has been shown as an Executive post but same is not correct, it is not an executive post but it is the lowest rung post from amongst the Sub-Inspector Staff. 11. While considering the rival submissions, it is not disputed that the respondents No. 4 to 9 were appointed on compassionate ground. The scheme for providing employment on compassionate ground as per above referred O.M. dated 11.12.1984 reveal that employment on compassionate ground can be against Class III or Class IV posts under the State Government whereas, clause (4) of the scheme provides as under; "Employment on compassionate ground should be given only at the lowest rung of the ladder for which applicant is educationally qualified". Reading clauses (1) and (4) of the scheme together it is clear that there is a scope for providing employment on compassionate ground at the lowest rung of the ladder for which an applicant shall be educationally qualified. Regarding educational qualification to be eligible for the post of Sub-Inspector of Supply, nothing adverse has been alleged. The compassionate appointment has been given to respondents No. 4 to 9 clearly consistent with the scheme because the post of Sub-Inspector of Supply is the lower rung in the ladder of Inspector staff. That apart, it is not now open for the petitioner to challenge the compassionate appointment of respondents No. 4 to 9 after a gap of more than a decade, perhaps realising the same, position she has prayed for alternative relief i.e., to place the respondents No. 4 to 9 in the seniority list below her on the ground that their appointment as against the post of Sub-Inspector of Supply is not in accordance with law. 12. Firstly, compassionate appointment of respondents No. 4 to 9 being not interferable at this stage secondly, seniority of the post of Sub-Inspector of Supply has to be on the basis of the date of appointment. Respondents admittedly have been appointed prior in point of time as compared to the petitioner. 12. Firstly, compassionate appointment of respondents No. 4 to 9 being not interferable at this stage secondly, seniority of the post of Sub-Inspector of Supply has to be on the basis of the date of appointment. Respondents admittedly have been appointed prior in point of time as compared to the petitioner. Petitioner in her own list along with 12 others prepared by Meghalaya Public Service Commission, figures amongst those 12 in the order of appointment at Sl. No. 6, means other appointees of the same list have not challenged the position of seniority of respondents No. 4 to 9. Learned Addl. AG has rightly pointed out that in order to avoid any ambiguity, the Government of Meghalaya, Personnel & Admv. Reforms (B) Department has issued an Office Memorandum under No. PER (AR) 45/91/1 dated 19.06.1991 wherein, it has been provided that after careful examination, Government has decided that seniority in all cases of appointment made on compassionate ground should be determined from the date of joining the post and the position of the incumbent should be next to junior most in the cadre/post on that date. Said Memorandum has not been challenged. 13. The official respondents while preparing the Gradation List in the year 2007 have not committed any error as they have prepared the list strictly on the basis of the date of appointment or joining the post. 14. Learned counsel for the petitioner tried to persuade that since the appointment of respondents No. 4 to 9 is not in accordance with the rules, therefore, they cannot rank senior to the petitioner. In support of his submission has placed reliance on the judgments reported in (1986) Suppl. SCC 185, (2013) 2 SCC 516 and 2008 (1) GLT 769. The submission of the learned counsel for the petitioner, at the first blush appeared to be attractive but on scrutiny is found to be without substance. Compassionate appointment is a departure from normal rule of recruitment and selection. To say that the respondents No. 4 to 9 were not recommended by the Meghalaya Public Service Commission is totally misplaced. The scheme for compassionate appointment notified vide O.M. dated 11.12.1984 clearly provides that for compassionate appointment consultation with Meghalaya Public Service Commission or District Selection Committee as the case may be is not required. For facility of reference Clause 14 of the Scheme is quoted hereunder; "14. The scheme for compassionate appointment notified vide O.M. dated 11.12.1984 clearly provides that for compassionate appointment consultation with Meghalaya Public Service Commission or District Selection Committee as the case may be is not required. For facility of reference Clause 14 of the Scheme is quoted hereunder; "14. Consultation with the Meghalaya Public Service Commission or District Selection Committee as the case may be, is not required for appointment under this scheme." 15. The judgments on which reliance has been placed by the learned counsel for the petitioner with respect are not applicable to the facts and background of the case, law has to be applied in the background of the peculiar facts of a peculiar case however, the principles enunciated have to be followed. After bestowing my thoughtful consideration to the facts of the instant case and the facts of the cases based on which judgments as referred to above have been passed are not applicable to the present case, that too when an appointment in accordance with the scheme has been made on compassionate ground. 16. The contention of the learned counsel for respondents No. 1 to 3 and 4, 5 and 7 that the petition is hit by laches has a force to prevail. Admittedly, respondents No. 4 to 7 have been appointed respectively in the year 2003 whereas, respondent No. 8 in the year 2004 and respondent No. 9 in the month of April 2005, means after more than a decade petition has been filed. In addition, initial Gradation List has been notified in the year 2007, same has not been challenged instead updated Gradation List notified in the year 2015 has been challenged. Total indolence and negligence is attributable to the petitioner, when it is so, petition has also to be dismissed as hit by laches. Learned Addl.AG has rightly placed reliance on the judgment reported in (2007) 9 SCC 274 titled Shiv Dass v. Union of India. Following portions from para 8 and 9 shall be advantageous to be quoted:- "8. It was stated in State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 : AIR 1987 SC 251 that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. Following portions from para 8 and 9 shall be advantageous to be quoted:- "8. It was stated in State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 : AIR 1987 SC 251 that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactory explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction........" "9. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore, AIR 1967 SC 993 . There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray, (1977) 3 SCC 396 : 1977 SCC (L&S) 424 : AIR 1976 SC 2617 making of repeated representations was not regard as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See also State of Orissa v. Arun Kumar Patnaik, (1976) 3 SCC 579 : 1976 SCC (L&S) 468 : AIR 1976 SC 1639 ) 17. It is also relevant to quote paragraphs 9 and 10 of the judgment rendered in the case of Union of India & Ors. v. Chaman Rana: (2018) 5 SCC 798 ; "9. As far back as in P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22 considering a claim for promotion belated by 14 years, this Court had observed that a period of six months or at the utmost a year would be reasonable time to approach a court against denial of promotion and that it would be a sound and wise exercise of discretion not to entertain such claims by persons who tried to unsettle the settled matters, which only clog the work of the court impeding it in considering genuine grievances within time in the following words: (SCC p. 154, para 2) "2. .....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 extraordinary 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 petitioners 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 appellants petition as well as the appeal." (emphasis added) "10. Mere repeated filing of representations could not be sufficient explanation for delay in approaching the Court for grant of relief, was considered in Gandhinagar Motor Transport Society v. Kasbekar, 1953 SCC OnLine Bom 64 : AIR 1954 Bom 202 by Chagla, C.J. observing as follows: (SCC OnLine Bom : AIR p. 203, para 2) "2. ... Now, we have had occasion to point out that the only delay which this Court will excuse in presenting a petition is the delay which is caused by the petitioner pursuing a legal remedy which is given to him. In this particular case the petitioner did not pursue a legal remedy. The remedy he pursued was extra-legal or extra-judicial. Once the final decision of the Government is given, a representation is merely an appeal for mercy or indulgence, but it is not pursuing a remedy which the law gave to the petitioner....." 18. For the stated reasons facts and law petition not only lacks merit but is also hit by laches, accordingly dismissed. No order as to costs.