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2022 DIGILAW 294 (MEG)

Zanera R. Marak v. State of Meghalaya

2022-11-09

SANJIB BANERJEE, W.DIENGDOH

body2022
JUDGMENT Sanjib Banerjee; CJ. - The writ petition complains of the private respondents being placed ahead of the writ petitioners in the gradation list prepared by the Social Welfare Department of the State where the writ petitioners and the private respondents are employed. 2. The impugned tentative gradation list of officers under the Social Welfare Department has been prepared as on January 1, 2022 and is found at pages 170 to 179 of the compilation filed by the petitioners. It is pointed out by the private respondents that the challenge in the writ petition is to the gradation list that was prepared on January 1, 2021. However, since a subsequent tentative gradation list of officers has been prepared by the relevant Department, it is the later gradation list which is taken into account for the purpose of the present proceedings. 3. The tentative gradation list of January 1, 2022 places the private respondents Nos.4 and 5 above all the petitioners in the gradation list pertaining to Grade-II officers. The private respondent No.6 has also been placed above the two other writ petitioners. It is necessary to see the relevant extract from the tentative gradation list: 'Sl. No. Name Date of Birth Date of Appointment 1. Smti. Rica Bareh (respondent No.4) 26.2.1979 7.8.2008 2. Shri Evershine Tariang (respondent No.5) 15.10.1979 7.11.2008 3. Smti. Zanera R. Marak (petitioner No.1) 30.11.1982 2.6.2008 4. Smti. Madonna Onasis T. Sangma (petitioner No.2) 15.2.1983 2.6.2008 5. Smti. Olivia C. Nongbri (respondent No.6) 14.8.1978 7.11.2008 6. Shri Siddhartha S. Koch (petitioner No.4) 28.3.1978 2.6.2008 7. Smti. Norimchi A. Sangma (petitioner No.3) 22.12.1980 2.6.2008' 4. According to the State, the gradation list has been prepared in terms of an office memorandum of November 25, 2009. A copy of such office memorandum is appended to one of the affidavits filed by the State. The essential part of the memorandum provides as follows: 'It is noted that appointment is normally made on the basis of the recommendation of the M.P.S.C./D.S.C. On account of application of the Reservation Policy, some candidates who are lower in the merit list could have been appointed earlier than those higher in the merit list. As such, if actual date of joining is taken into consideration, the position may appear anomalous since the inter se seniority has to be maintained as per the merit list of the M.P.S.C./D.S.C. as per normal standing principles. As such, if actual date of joining is taken into consideration, the position may appear anomalous since the inter se seniority has to be maintained as per the merit list of the M.P.S.C./D.S.C. as per normal standing principles. In order to avoid any anomalies in this matter, it has been decided that in such cases, a notional date of appointment may be fixed for such candidates who are appointed later than some other batch mates who, though lower in the M.P.S.C./D.S.C. list, get appointment earlier because of application of the Reservation Policy. This notional date should be the date of joining of the last appointed candidate from the merit list who has, however, been appointed earlier because of application of the Reservation Policy. This notional date would be taken into consideration while determining the seniority in the amalgamated seniority list.' 5. Ordinarily, the rule is that when several appointees are issued letters of appointment in course of the same exercise and at the end of the same selection process, notwithstanding the dates of appointment which may vary because of reasons of convenience or clerical issues, in the inter se gradation list, the position of the appointees in order of merit has to be maintained. The rule also recognises that if two candidates secure the same marks and rank, the elder of the two is allotted the higher gradation post between the two. 6. Oftentimes, when a recruitment process is initiated, a list of successful candidates is prepared and, after taking in candidates corresponding to the number of vacancies, the remainder are kept on a waiting list for a period say a year or so to fill up any casual vacancies that may arise within such period. This exercise is undertaken so that the time-consuming and expensive process of recruitment does not have to be repeated each time if there is a casual vacancy which may arise all of a sudden because of death, resignation or dismissal. 7. It is the State's avowed stand, inter alia, at paragraph 4 of its affidavit affirmed on April 18, 2022 that as at September 14, 2007 there were nine vacancies in the post of Child Development Project Officer. It was in such circumstances that the State Public Service Commission was requested to conduct the selection process and recommend appropriate names. 7. It is the State's avowed stand, inter alia, at paragraph 4 of its affidavit affirmed on April 18, 2022 that as at September 14, 2007 there were nine vacancies in the post of Child Development Project Officer. It was in such circumstances that the State Public Service Commission was requested to conduct the selection process and recommend appropriate names. Such exercise was undertaken by the Meghalaya Public Service Commission and, by a letter dated September 13, 2007, which appears at page 11 of the same affidavit filed by the State, a list of 12 candidates in order of merit was forwarded to the Social Welfare Department of the State. 8. Paragraph 4 of the State's affidavit of April 18, 2022 goes on to indicate how the calculations were made based on the reservation policy of the State to consider the cases of the 12 persons who had figured in the merit list forwarded by the MPSC. It must be kept in mind that at the relevant point of time, there was no roster system put in place for appointments to be made in accordance therewith. A completely erroneous process had been adopted till earlier this year under which every recruitment exercise was taken as a one-off process and the allotment of candidates as per the reservation policy was confined to that recruitment process itself. Pursuant to orders passed by this Court earlier this year, such completely flawed process has now been abandoned and the roster system has been adopted. 9. However, what has to be seen is how the petitioners and the private respondents were appointed and whether the appointments given to all seven of them can be regarded as part of the same process. 10. As per the details indicated at paragraph 4 of the said affidavit filed by the State, upon applying the reservation policy, it was discovered that one of the successful candidates from the general or unreserved category could be appointed, whereas four posts were to go to the Khasi and Jaintia category, three posts to the Garo category and one post to the other scheduled castes and tribes category. The arithmetic was completely flawed, but that is besides the point. 11. What is undeniable is that as at September 14, 2007, nine vacancies had arisen in the post of CDPO and the recruitment exercise was conducted to fill up such nine posts. The arithmetic was completely flawed, but that is besides the point. 11. What is undeniable is that as at September 14, 2007, nine vacancies had arisen in the post of CDPO and the recruitment exercise was conducted to fill up such nine posts. The four petitioners herein were all appointed with five others on June 2, 2008 as would be evident from a notification of such date which appears at page 102 of the petitioners' compilation. 12. The State's affidavit of April 18, 2022 indicates how substantial time was lost in obtaining police verification reports in respect of the nine candidates who had been selected out of the merit list of the 12 published by the State Public Service Commission. However, paragraph 6 of such affidavit clearly states that the nine candidates were appointed under the notification of July 2, 2008. With the appointment letters being issued, the process of recruitment against the nine vacancies in the post of CDPO was completed. 13. Paragraph 7 of the State's affidavit of April 18, 2022 goes on to say that the fourth respondent herein was appointed to join a post that fell vacant on or after July 8, 2008. Indeed, the letter of appointment issued to the fourth respondent was on August 7, 2008. The fifth and sixth respondents were appointed subsequently by a notification of November 7, 2008. There is no dispute pertaining to the dates of appointment. 14. A minor point is raised by the petitioners to the effect that by the time the fifth and sixth respondents were appointed, the validity of the original list submitted by the State Public Service Commission had expired and it was only after the expiry of the period of validity that the State purported to validate the time so that other appointments from the original list could be made. The perceived aberration on the part of the State on such count does not appear to be any anomaly at all and there does not appear to be any error in the private respondent Nos. 4, 5 and 6 having been appointed since their names figured in the original list of September 13, 2007 as furnished by the State Public Service Commission. 4, 5 and 6 having been appointed since their names figured in the original list of September 13, 2007 as furnished by the State Public Service Commission. Further, the validity of a waiting list can be extended to even beyond a year as long as it does not appear to be arbitrary or designed to cause prejudice to any person. In this case, the period of validity may have been extended to beyond a year, but no further recruitment process had been initiated in the interregnum. 15. Thus, it is evident that the private respondents were not given any appointment against the initial nine vacancies that arose in the year 2007 but they figured in the list of 12 candidates recommended by the State Public Service Commission on September 13, 2007 and they were appointed against casual vacancies which arose after the writ petitioners and five others had already been appointed on June 2, 2008. 16. There is no doubt that two of the private respondents secured higher position in order of merit than all the writ petitioners herein and the sixth respondent secured a position higher than the third and fourth petitioners. In the usual course, if all the petitioners and the private respondents had been appointed together as a part of the same exercise or recruitment process, there is no doubt that the gradation list extracted above would have held good. However, when it is the admitted position that the writ petitioners herein were appointed earlier in point of time than the private respondents and not against the vacancies that had arisen for which the recruitment exercise was undertaken, the fact that some of the private respondents fared better than some of the writ petitioners would have no bearing in preparing the inter se gradation list. 17. Indeed, no inter se gradation list involving the petitioners and the private respondents was called for. An inter se gradation list is required when several candidates are appointed to the same post in one process. If candidates A and B are appointed earlier than candidates C and D and the two sets of appointment do not cover the original vacancies for which the selection process was conducted, A and B will always have to be regarded as senior to C and D in the entry-level post. 18. If candidates A and B are appointed earlier than candidates C and D and the two sets of appointment do not cover the original vacancies for which the selection process was conducted, A and B will always have to be regarded as senior to C and D in the entry-level post. 18. The cardinal principle in such regard is that seniors always stand ahead in queue than juniors and it is only when several persons are appointed on the same day or by the same exercise that an inter se gradation list is called for. Ordinarily, the person in public employment appointed earlier becomes senior to a person appointed later, irrespective of age, merit or other considerations. The only scenario in which the inter se gradation list is called for is when several appointments are made on the same day or as a part of the same appointing or recruitment process. 19. In this case, the appointment given to respondent No.4 was not a part of the posts that felt vacant in 2007 for which the State Public Service Commission was required to undertake the selection process. Similarly, the appointments given to the respondent Nos.5 and 6 were against vacancies that arose subsequent to the writ petitioners herein and five others having been appointed. In such a situation, it did not matter that the private respondents may have fared better than the writ petitioners in the selection process that was conducted by the State Public Service Commission. The matter is covered by the ordinary rule of seniority going by the date of appointment. 20. Accordingly, the gradation lists, tentative or otherwise, prepared by the Social Welfare Department of the State in which any of the private respondents figure ahead of the writ petitioners are set aside and the relevant Department is directed to prepare a fresh gradation list wherein the writ petitioners will all figure ahead of the private respondents herein. In terms of seniority, the writ petitioners will always be regarded as senior in the post of CDPO than all the private respondents and the inter-se-seniority, if at all relevant will be as follows: the first petitioner, the second petitioner, the fourth petitioner, the third petitioner, the fourth respondent, the fifth respondent and, finally, the sixth respondent. 21. In terms of seniority, the writ petitioners will always be regarded as senior in the post of CDPO than all the private respondents and the inter-se-seniority, if at all relevant will be as follows: the first petitioner, the second petitioner, the fourth petitioner, the third petitioner, the fourth respondent, the fifth respondent and, finally, the sixth respondent. 21. To the extent, the notification of November 25, 2009 is found to be at variance with the rule that has been recognised and enunciated herein, such office memorandum of November 25, 2009 is set aside and the State is required to reconsider the matter and issue an appropriate notification in tune with the law as declared. 22. Accordingly, WP (C) No.394 of 2021 succeeds as indicated above. MC (WPC) No.129 of 2021 is disposed of. 23. The writ petitioners will be entitled to costs assessed at Rs.25,000/- to be paid by the respondent employer.