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Meghalaya High Court · body

2022 DIGILAW 316 (MEG)

Gordon Kynsai Nongkynrih v. Union of India

2022-12-01

H.S.THANGKHIEW

body2022
JUDGMENT 1. The brief facts of the case are that the National Institute of Electronic and Information Technology (NIELIT) formerly known as Department of Electronics and Accreditation of Computer Course (DOEACC) till 10.10.2011, issued an advertisement on 25.02.2010, inviting applications for recruitment to various vacant sanctioned post including 3 sanctioned posts of Scientist/Engineer 'C' on regular basis. The writ petitioner who was having the qualification of MSc Computer Science, and was then holding the post of Scientific Officer, NIC, Mizoram, applied for the same through the proper channel. The qualification required for the post as given in the advertisement, was BE/B.Tech, MSc in relevant fields or recognized equivalent qualification with not less than 65% marks. The writ petitioner was then recommended by the expert committee and his name appeared at Serial No. 1, where after, an offer of appointment was made to the post of Scientist 'C', on a short term basis for a period of 5 years. The writ petitioner joined the post at Aizawl centre, pursuant to an appointment order dated 09.10.2010, and has been drawing regular pay scale including increment, revised pay scale, contribution to provident fund, etc. The petitioner thereafter, was transferred on 02.05.2011, along with 2 others, who were appointed as Scientist 'B' to Itanagar, along with the post. However, the services of the petitioner was not regularized, and the petitioner continued working in Itanagar till 2019, and was transferred to Shillong in November, 2019, where he is serving till date. 2. The grievance of the writ petitioner, is that inspite of his continuation in service on a regular scale of pay, instead of being regularized, his services are being extended from time to time, which is contrary to the advertisement dated 25.02.2010. Discrimination has also been alleged as 2 other candidates who had applied against the same advertisement as Scientist 'B', were appointed on regular basis. Representations were then filed along with other similarly situated persons for issuance of orders to appoint him against the sanctioned post from the date of joining, but no action has been forthcoming from the respondents. 3. Mr. Representations were then filed along with other similarly situated persons for issuance of orders to appoint him against the sanctioned post from the date of joining, but no action has been forthcoming from the respondents. 3. Mr. S. Sen, learned counsel for the petitioner submits that 2 other candidates who were appointed, pursuant to the advertisement to the post of Scientist 'B' on contract basis, being aggrieved, had instituted a writ petition being WP(C) No. 286 of 2015, before the Gauhati High Court, wherein the present respondents, were also party respondents. The Gauhati High Court, by judgment dated 18.04.2017, he submits, directed the respondents to treat the service of the 2 persons, to the post of Scientist 'B' on regular basis, with retrospective effect from the date of the offer of appointment. The learned counsel contends that as the petitioner is similarly situated, he should be given the same consideration by this Court. It is further submitted that the petitioner has been discharging his duties efficiently and further is an MSc in Computer Science, though not a prescribed qualification for the post of Scientist 'C', but nevertheless, is an equivalent qualification. He submits that the advertisement, having categorically stated that the post against which he was appointed was appointment on a regular basis, the non-regularization of the services, apart from being discriminatory, has caused severe injustice and hardship, as to join the present post, the petitioner had resigned from his substantive post at the National Informatics Centre (NIC). 4. The respondents represented by Dr. N. Mozika, learned DSG, by way of the affidavit and arguments, has contended that the recruitment rules of NIELIT (formerly DOEACC), stipulated the qualifications for the post of Scientist 'C' as 1st Class B.E/recognized equivalent qualification with not less than 65% marks, or M.Tech/M.E./M.Design: or Ph.D (Engg.). He contends that the Aizawl centre, which was created in 2009, did not adhere to the twin instructions, contained in the letter dated 10.12.2009, which contained instructions from DOEACC headquarters, while issuing the advertisement. It is submitted that, the said advertisement, instead of stating that the posts are to be filled up temporarily, on short term basis and would be transferred to Itanagar, as and when required, had stipulated that the posts were to be filled up on regular/deputation basis, including permanent absorption basis. It is submitted that, the said advertisement, instead of stating that the posts are to be filled up temporarily, on short term basis and would be transferred to Itanagar, as and when required, had stipulated that the posts were to be filled up on regular/deputation basis, including permanent absorption basis. It is further submitted that, even though the qualifications has been prescribed by DOEACC, the advertisement issued had inserted MSc/equivalent. It is also submitted that, the selection process while recommending the petitioner had also erred, as he held only an MSc degree. Even the offer of appointment, it is emphasized, spoke only of short term contract basis for a period of 5 years, which was accepted by the petitioner, and as such, it is contended, he cannot seek regularization. 5. The other contentions raised, apart from the point that the advertisement issued by the Aizawl centre was in violation of the directions of NIELIT (formerly DOEACC), are that the post of Scientist 'C' was transferred from other DOEACC centres to Aizawl centre temporarily, with the direction for filling up the post only on temporary basis. It is submitted that the petitioner was appointed in violation of the prevailing recruitment rules, as to essential qualification and that MSc is not equivalent to B.Tech or M.Tech. It is lastly submitted that, the case relied on by the petitioner that is, WP(C) No. 286 of 2015, filed before the Gauhati High Court, is misplaced, as the petitioners in that case, were regularized as they met the eligibility criteria, as per the recruitment rules at that time, for the post of Scientist 'B'. 6. In reply to the submissions advanced on the point of qualifying criteria, Mr. S. Sen, learned counsel for the petitioner submits that, it is not correct that, the addition of MSc in Computer Science, within the essential qualification for the post of Scientist 'C', has violated the approved recruitment rules of NIELIT (formerly DOEACC), inasmuch as, as per the recruitment rules, the prescribed qualification for the post of Scientist 'C' is 1st Class B.E/recognized equivalent qualification with not less than 65% marks OR M.Tech/M.E./M.Design OR Ph.D(Engg.). He thus submits that, M.Sc in a relevant field, as referred would mean M.Sc in any technical discipline such as Computer Science, which the petitioner possessed. He therefore, submits that there is no impediment for the respondents to consider the petitioner's case for regularization. He thus submits that, M.Sc in a relevant field, as referred would mean M.Sc in any technical discipline such as Computer Science, which the petitioner possessed. He therefore, submits that there is no impediment for the respondents to consider the petitioner's case for regularization. 7. I have heard learned counsels for the parties. Before discussing the merits of the matter, it is important to note herein that, this matter as the subject matter indicates, is to be agitated before the Central Administrative Tribunal, but however, when this matter was heard, it was informed that there was no Chairperson appointed and that at times, though not certain, matters were taken up by the Bench at Kolkata. Accordingly, considering the uncertain situation, this Court has taken up this matter for disposal. 8. The advertisement dated 25.02.2010, to which the writ petitioner responded to, which was issued by the then DOEACC, Aizawl centre, had clearly spelt out the requirements of recruitment, that is, for filling up of various posts on a regular/deputation basis, including permanent absorption and for the post of Scientist Engineer 'C'. The prescribed educational qualification and experience was B.E/B.Tech/M.Sc in relevant fields, or recognized equivalent qualification with not less than 65% marks with 5 years experience, OR M.E./M.Tech Degree with 03 years experience OR Ph.D. (Engg.) with 01 year experience. The petitioner on being selected by the expert committee, however as submitted, was not put in regular employ, but was put on a short term contract basis. However, it has been noted and not disputed that, from the list of selected candidates recruited, pursuant to the advertisement, 3 candidates had been given appointment on regular basis against the sanctioned posts, whereas, the petitioner and 2 other Scientist 'B' appointees, were still on short term contract basis, though, drawing regular salaries, as revised from time to time, including increments as applicable to permanent employees. 9. It has been brought to the notice of the Court, that 2 persons namely one Shri. Bipul Roy and Shri. Anil Kumar Shaw, who were selected to the post of Scientist 'B' but appointed on short term contract basis like the petitioner, being aggrieved, had filed a writ petition being WP(C) No. 286 of 2015, before the Gauhati High Court, Itanagar Bench, praying for regular appointment, as had been accorded to 2 other incumbents, pursuant to the same selection process. The Gauhati High Court, then by order dated 18.04.2017, had allowed the writ petition, with a direction to treat the service of the writ petitioners, therein to the post of Scientist 'B', in regular post, with retrospective effect, from the date of offer of appointment. A perusal of the order dated 18.04.2017, reflects that the respondents had raised similar objections, that is, once having accepted appointment on short term contract basis, the same could not be challenged. In the instant case, however, apart from the same objections that were before the Gauhati High Court, an additional ground has been sought to be made out, that the petitioner did not possess the requisite qualifications. 10. Before dealing with the point of the qualification criteria, as raised by the respondents, the other conditions of appointment between the writ petitioner herein, and the writ petitioners in WP(C) No. 286 of 2015, are exactly on the same footing, as the entire recruitment of the appointees was through the same selection process emanating from the same advertisement dated 25.02.2010. The judgment of the Gauhati High Court, in this respect has great persuasive value, as the question of the irrationality and arbitrary action of the respondents in discriminating between the appointees, has been discussed in great detail, and a finding arrived at, that such action was totally unfair, while allowing the writ petitions. In this context, it would be apposite to quote 2 paragraphs, which are relevant namely Para - 10 and 11 of the said judgment. '10. As per the earlier Rule 3.1 of Service/Staff Rules of DOEACC Society, all appointments will be made either on contract or on deputation basis for a period of 5 years as against the sanction posts on graded scale of pay. On completion of said period, the contract can be further be extended based on performance. The said Rule was amended subsequently vide Annexure - 4 whereby it is provided that 'all appointments will be made either by the direct recruitment on regular basis or on deputation basis including permanent absorption against the sanctioned posts.' It is to be noted that after this amendment, the authorities has advertised for recruitment to the several posts including the posts of Scientist- B (of the petitioners) for filling up of various posts on regular/deputation basis including permanent absorption basis, dated 25.02.2010. From the communication of the respondent authority vide Annexure - 5B, dated 12.05.2010, it appears that the authorities has intimated the member of the selection committee that they are intending to recruit Scientist B and C on regular basis. Thereafter, the selection Committee recommended the selection of both the petitioners and petitioner No. 2 secured the 2nd position in the select list whereas the petitioner No. 1 secured 6th position in the select list and one K.H. RekaDevi stood 3rd position and another V. Khiangte secured 1st position. But while issuing appointment order to present two petitioners, they were appointed for short term Contract basis for 5 years whereas the other two above named persons Serial No. 1 & 3 has been appointed on regular basis on the same scale of pay. Such an affair on the part of the respondents is wholly contrary to their own advertisement. As has been mentioned above, as per the amended Rules, no appointment can be made on contract basis. It is apparent that the authority has not only flouted the norms and Rules and has arbitrarily used the power of discretion while appointing the present two petitioners. As has been discussed above, the respondent authorities is a State as per the Article 12 of the Constitution of India and as such they are bound to carry transparency in the matter of selection and appointment strictly according to the Rules, which has not been adhered to by the respondent authority. Although, discretion always not a subject of criticism but such discretion should be exercised only on the sound principle of reasonableness which is not found in the given case. The respondent authority has extremely failed to disclose anything as to the reason of deviating from their own Rules and procedure and as about the reasons for exercising such discretion. 11. It is pertinent to note here all the selected candidates stood at par with each other and there is no opinion of the selection committee whatsoever that such persons should be categorized while at the time of appointment, as has been done by the respondent authorities. Without going any further, it can be held that decision of the respondent authority is vitiated by arbitrariness and beyond the test of reasonableness and liable to be interfered into.' 11. Without going any further, it can be held that decision of the respondent authority is vitiated by arbitrariness and beyond the test of reasonableness and liable to be interfered into.' 11. Thus it is seen that the judgment of the Gauhati High Court has covered this aspect, after examining the entire gament and actions of the respondents, with regard to the writ petitioners in WP(C) No. 286 of 2015, who are exactly on the same footing as the petitioners, which this Court notes and adopts the said finding. 12. On the question of qualifications, though arguments have been raised, and materials sought to be shown, that the petitioner did not meet the prescribed requirements, and further that the advertisement had been issued in violation of the directions of NIELIT (formerly DOEACC), in the considered view of the Court, it is too late in the day, for the respondents to raise such objections. This is in view of the fact, that the advertisement had been issued as far back as in February, 2010, and a selection process, which had been conducted thereafter, had found the candidature of the writ petitioner to meet the requirements. The selection no doubt, being conducted by a duly constituted selection committee, an expert body, had found the petitioner suitable for appointment, and it follows that the qualification of the writ petitioner, had therefore been found to be equivalent and suitable, to be recommended for appointment. The respondents therefore, cannot at this stage, take a stance that the petitioner did not meet the educational qualification criteria and that the appointment was never meant to be regular. No fault, negligence or suppression can be attributed in any manner to the writ petitioner, and in fact, he had given up a regular post in the NIC to join the respondent organization, in the secure hope that he was applying for a regular post, as was advertised. The respondents therefore, are estopped from taking an alternate stance, in disowning their advertisement to deny the writ petitioner the benefit of regular status or for consideration thereof. 13. In view of the facts and circumstances of the case, the respondents are therefore directed to consider the case of the petitioner for treating his appointment to the post of Scientist 'C', NIELIT in a substantive/permanent capacity with effect from 08.10.2010, the date, the petitioner joined, pursuant to the offer of appointment dated 10.08.2010. 13. In view of the facts and circumstances of the case, the respondents are therefore directed to consider the case of the petitioner for treating his appointment to the post of Scientist 'C', NIELIT in a substantive/permanent capacity with effect from 08.10.2010, the date, the petitioner joined, pursuant to the offer of appointment dated 10.08.2010. 14. With the above noted directions, the writ petition accordingly stands disposed of. 15. No order as to costs.