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2022 DIGILAW 13 (MEG)

Winje Rosalie G. Momin v. State of Meghalaya

2022-02-10

SANJIB BANERJEE

body2022
JUDGMENT 1. The only question which falls for consideration in this matter pertains to the inter-se seniority between groups of persons in the Meghalaya Civil Service and the Meghalaya Police Service. The principal ground urged by the writ petitioners is that since the writ petitioners were appointed earlier in point of time than the private respondents herein, there can be no question of ascertaining any inter-se seniority between the writ petitioners and private respondents. 2. A rather absurd situation is presented on behalf of the State. The State claims that in terms of Rule 16(4) of the Meghalaya Civil Service Rules, 1975 the inter-se seniority between the persons who underwent the process of examination together has to be determined, irrespective of when such persons may have been appointed. The submission has to be repelled without any further consideration. 3. The facts need to be recorded in some greater detail. Following an advertisement issued on November 22, 2006 and the addendum that followed in December of that year, a combined examination was conducted for recruitment into the Meghalaya Civil Service (MCS) and the Meghalaya Police Service (MPS) by the State Public Service Commission and a select list in the descending order of merit was published on or about September 7, 2010 indicating a total of 74 successful candidates. 4. It may do well at this stage to refer to the reservation policy in the State. Forty percent of the seats in public employment are reserved in the State for the Khasi-Jaintia communities and a further 40 percent for the Garo community. Five percent of the placements are reserved for other backward tribes and communities of the State and the remaining 15 percent recruitment is from the unreserved or open category. It is also submitted on behalf of the appearing parties that there is no roster system followed in the State. 5. Thus, for the reservation policy to be applied, if there are 100 vacancies and many more eligible candidates to choose from, the first 40 on the basis of merit from among the Khasi-Jaintia candidates would be eligible for appointment, as would be the first 40 percent on the basis of merit from among the Garo community. 5. Thus, for the reservation policy to be applied, if there are 100 vacancies and many more eligible candidates to choose from, the first 40 on the basis of merit from among the Khasi-Jaintia candidates would be eligible for appointment, as would be the first 40 percent on the basis of merit from among the Garo community. Similarly, the first five according to merit from other backward tribes and communities in the State would also be entitled to be appointed and the remaining 15 would be appointed from the eligible open category candidates based on merit. 6. In the usual course, it may not always be possible to fill up all reserved seats since adequate numbers of candidates from the reserved categories may not be available. Indeed, if there are 50 eligible candidates and 40 vacancies, it may well be that in one of the categories the adequate number of eligible candidates for the entire quota of seats reserved unto such category may not be available. In such a scenario, based on the rules in vogue in the State, the reserved seats are left vacant and carried over to the next process of appointment or the unfilled reserved seats are filled up in such a manner as may be prescribed by law. 7. It is equally common that the process of the examination is conducted on a periodic basis and the results thereof or the merit list prepared thereunder is kept alive for a particular period of time. It has been judicially accepted in this country that the merit list can be kept valid for a period of a year or so. That would imply that if the examination has been held in a particular year, the vacancies in that particular year would be filled up according to the reservation policy and the merit list prepared by the State Public Service Commission; and, the unsuccessful candidates on the merit list who fail to obtain any appointment in the initial process would be in a kind of waiting-list; and, should any casual or regular vacancy occur within the next year, the persons from the waiting-list would be accommodated, subject to the reservation criteria as may be in vogue and merit. 8. This is exactly what happened in this case. 8. This is exactly what happened in this case. Out of the aforesaid select list, prepared according to the merit by the State Public Service Commission on September 7, 2010, the initial appointments were made to the MCS on December 1, 2010 and 40 out of the 74 successful candidates, in accordance with the reservation criteria and merit, were recruited. A further 11 candidates were appointed on December 8, 2010, again based on the reservation criteria and merit, in the MPS. It appears that one of the successful candidates from the open or unreserved category chose not to join and another who had been initially appointed in the MPS switched over to MCS, but that would not be relevant for the present discussion. It is the undisputed position that the select list published in September 7, 2010 was extended for a period of four months on September 9, 2011, after the expiry of a period of one year, and again extended up to May 9, 2012. This is some significance in the present context. The examination was one, but appointments were made in several tranches; not as a part of the same recruitment process but under discrete processes. 9. The private respondents came to be appointed on or about May 8, 2012 from among the left-over candidates who had not been appointed in the year 2010. Again the principle of reservation was applied and the candidates were appointed according to their merit. 10. It transpires that in 2012 a seniority list was prepared and, in such list, the persons recruited in the year 2010 and the persons recruited in the year 2012 were clubbed together for determination of inter-se seniority among them. This was patently absurd and completely without any element of rationality or logic. It is elementary that an inter-se seniority list assumes that all the persons in such list were appointed simultaneously, whether on the same date or in the course of the same exercise. A person who has been recruited or appointed earlier in point of time than another in the same post can never be equated with the person appointed later even to the same post. The very need for preparing an inter-se seniority list arises upon a number of persons having been recruited to the same post simultaneously or by the same process. The very need for preparing an inter-se seniority list arises upon a number of persons having been recruited to the same post simultaneously or by the same process. It bears repetition that if several candidates have been recruited or appointed to the same post on the same date, or in course of the same exercise, only then would their inter-se seniority need to be determined on the basis of the criteria which are fixed therefor. 11. In the present case, Rule 16(4) of the said Rules of 1975 provides as follows: '(4). The seniority of the members of the Service recruited after the commencement of these rules shall be in the order in which their names appear in the list prepared sub-rule (4) of Rule 6 or approved under Rule 8; Provided that the members of the service recruited in year under clause (b) of sub-rule (1) of Rule 5 shall be senior to the members recruited in the same year under clause (a) of sub-rule (1) of Rule 5.' 12. The proviso deals with two categories of employees since Rule 5 of the said Rules permits appointment by way of examination and, simultaneously, appointment from among the members already serving the State. The proviso is not relevant for the present purpose since the proviso mandates that persons who were already in the State service and have been recruited to a post will stand senior to persons who have been recruited pursuant to an open examination for the purpose. 13. De hors the proviso, sub-rule (4) of Rule 16 of the said Rules requires the inter-se seniority to be determined 'in the order in which their names appeared in the list prepared under sub-rule (4) of Rule 6 ...' Sub-rule (4) of Rule 6 of the said Rules tasks the State Public Service Commission to prepare a list of all the candidates who have qualified in the examination 'in order of merit which shall be determined in accordance with the aggregate marks obtained by each candidate ...' Rule 6(4) of the said Rules was adhered to - and there is no dispute in such regard - while preparing the select list or merit list of September 7, 2010 referred to earlier. It was on the basis of such merit list that the initial appointments of December 1 and 8, 2010 were made to the MCS and MPS, respectively. 14. It was on the basis of such merit list that the initial appointments of December 1 and 8, 2010 were made to the MCS and MPS, respectively. 14. Since the merit list, as indicated earlier, is judicially accepted to remain valid for a year or so, it was specifically revalidated after the expiry of a year for a period of the next four months and, subsequently, revalidated again for the further period up to May 9, 2012, a day after the final recruitment was completed on May 8, 2012. 15. There is no doubt that in view of the reservation policy, open or unreserved category candidates who fared much better than the reserved category candidates could not be appointed in the year 2010. Some of such candidates may have got the appointment in 2012. But it is completely outlandish to suggest that since the candidates recruited in 2012 obtained more marks than the candidates recruited in 2010 or ranked higher in the merit list of September 7, 2010, such subsequently inducted employees would stand on the same footing as the earlier recruited employees of 2010 or there would be any need for determining the inter-se seniority between the persons appointed in 2010 and the persons appointed in 2012. It completely defies logic and reason. 16. The seniority in a particular post, in a sense, indicates who had occupied that post earlier. The need for determining the inter-se seniority arises when several persons are appointed to the post simultaneously or on the same day or in course of the same exercise. Such determination may be necessary for future promotion. When the two sets of appointments are so distinct and different in points of time as in 2010 and 2012, there is no question of apples and orange being put in the same basket for the inter-se seniority or two completely distinct classes of persons to be attempted to be ascertained. The State government should have known better. 17. The tragedy is not in the State government having acted foolishly, the real tragedy is that such ludicrous action is sought to be justified. 18. It is submitted by some of the respondents that the real issue pertains to the subsequent promotion that the 2010 recruits and 2012 recruits must be eligible to obtain. 17. The tragedy is not in the State government having acted foolishly, the real tragedy is that such ludicrous action is sought to be justified. 18. It is submitted by some of the respondents that the real issue pertains to the subsequent promotion that the 2010 recruits and 2012 recruits must be eligible to obtain. It is not clear as to how the promotion from the same post to the higher post in this case has to be determined and the rules of the employer in such regard have to be adhered to. It is possible that the promotion is on merit-cum-seniority basis when a separate set of considerations will come into play than when promotion is on the seniority-cum-merit basis. Whatever may be the case, it can never be lost sight of that the 2010 recruits, which are the petitioners in the present case, came to be appointed in the post much earlier than the 2012 recruits and will always be regarded as senior to the 2012 recruits in the entry-level post. As to how the seniority at the entry-level post will determine the future promotion, is an altogether different kettle of fish and is not the subject-matter of the present discussion. 19. The writ petition was instituted upon the representation given by the petitioners in the year 2012 and again in 2014 being disregarded. Since the petitioners had objected to the seniority list in 2012 itself and renewed the dissent in 2014 and approached this Court in its extraordinary jurisdiction shortly after the subsequent representation was rejected, there does not appear to be any delay on the part of the petitioners in approaching the Court. At any rate, in the context of the completely irrational situation brought about by the State in treating 2010 recruits and 2012 recruits as the same in terms of seniority, the Court is duty-bound to correct the colossal mistake of the State. 20. The present petitions were disposed of by orders dated March 5, 2019. Such orders were carried in appeal and, by an order dated May 13, 2019, the three appeals were allowed by setting aside the orders dated March 5, 2019 and remanding the matters for fresh consideration before the Single Bench. 21. The matter has appeared before this Bench since two Hon'ble Judges had grounds to recuse themselves. Such orders were carried in appeal and, by an order dated May 13, 2019, the three appeals were allowed by setting aside the orders dated March 5, 2019 and remanding the matters for fresh consideration before the Single Bench. 21. The matter has appeared before this Bench since two Hon'ble Judges had grounds to recuse themselves. However, the real problem would arise if any of the parties seeks to prefer an appeal against this order. Such appeal may not be conveniently taken up in this Court, given the present strength of Judges here. 22. WP (C) Nos.301, 302 and 306 of 2018 are allowed by holding that the 2010 recruits to the entry-level post have to be regarded as senior to the 2012 recruits to the same entry-level post, irrespective of whatever future considerations may arise in determining their cases for promotion to the next level. 23. There will, however, be no order as to costs. 24. MC [WP(C)] Nos.6, 7 and 8 of 2022 are disposed with liberty to the applicants to apply under Article 226 of the Constitution, if necessary.