Meghalaya High Court
Shri Damien Rongrin vs State Of Meghalaya on 5 October, 2016
Bench: Dinesh Maheshwari, S.R. Sen
1
Writ Appeal No. 35 of 2015
Shri Damien Rongrin v. State of Meghalaya and others
(and connected appeals)
IN THE HIGH COURT OF MEGHALAYA AT
SHILLONG
: JUDGMENT :
Writ Appeal No. 35 of 2015 (with connected appeals as per Schedule to this Judgment) Shri Damien Rongrin ..... Appellant
- Versus -
State of Meghalaya and others ..... Respondents
Date of Judgment: :: 5th October, 2016
PRESENT
HON'BLE SHRI JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE HON'BLE SHRI JUSTICE S.R. SEN Shri ND Chullai Sr.GA with Shri B Khyriem, GA } Shri HS Thangkhiew, Senior Adv. with Dr. N Mozika}, for the appellants Shri KC Gautam, for the contesting respondents (writ petitioners) BY THE COURT (per Hon'ble the Chief Justice):
These intra court appeals, directed against the common order dated 06.11.2015, as passed by the learned Single Judge of this Court in a batch of Writ Petitions led by WP(C) No.290/2014, have been considered together; and are taken up for disposal by this common judgment.
By the impugned order dated 06.11.2015, the learned Single Judge has accepted the grievance of writ petitioners against the promotion order dated 09.07.2014, whereby the private respondents of the respective petitions had been promoted to the post of Assistant Enforcement Inspector, while holding, inter alia, that the State Government had been unjustified in issuing executive instructions to provide graduation as the essential educational qualification for promotion of Enforcement Checker to the post of Assistant 2 Writ Appeal No. 35 of 2015 Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) Enforcement Inspector; and thereby causing prejudice to the writ petitioners, who were ranked senior as Enforcement Checkers but were non-graduates. The learned Single Judge has also found fault in the Government‟s action that the Meghalaya Public Service Commission („MPSC‟) was not consulted for the purpose of the promotions in question.
The relevant background aspects of the matter are that the private parties to this litigation entered the service of the Government of Meghalaya in its Transport Department on the post of Enforcement Checker. The relevant particulars of parties (except respondent No. 7 of the writ petitions who had expired), in the order of their seniority, as occurring in the gradation list of Enforcement Checkers circulated on 28.08.2012, are as under:-
Sl. Name of incumbent Date of Date Date of joining Qualification Length of No. birth of joining as service in service Enforcement Checker
1. ***** ***** ***** ***** ***** *****
2. Shri H. P. Syiem 10.08.1960 24.08.1982 24.08.1982 Matriculate 28 years (Petitioner of WP(C)No.290/2014
3. Shri Pillarson Marak 15.03.1964 16.11.1984 16.11.1984 PU (Arts) 26 years (Petitioner of WP(C) No.291/2014)
4. ***** ***** ***** ***** ***** *****
5. ***** ***** ***** ***** ***** *****
6. Shri F.Wahlang 24.12.1966 24.09.1990 24.09.1990 PU 21 years (Petitioner of (Commerce) WP(C)No.292/2014)
7. Shri Damien Rongrin 20.11.1967 3.4.1993 03.04.1993 Graduate 18 years (respondent No.6) 9 months
8. Shri Bawal K.R.Marak 01.03.1966 12.7.1993 12.07.1993 PU (Arts) 18 years (Petitioner of WP(C)No.293/2014)
9. Shri H. Kharkongor 14.8.1964 24.9.1990 26.09.1993 PU (Arts) 17 years (Petitioner of WP(C)No.294/2014)
10. Shri Oldash M. Sangma 22.2.1971 6.9.1993 06.09.1993 Graduate 17 years (Respondent No.9)
11. Shri Teilang Syiem 6.8.1971 1.6.1996 01.06.1996 Matriculate 15 years (Petitioner of WP(C)No.295/2014)
12. Shri Godfrey Balsam W. 4.10.1969 15.03.2004 15.03.2004 Matriculate 8 years Momin (Petitioner of WP(C)No.296/2014)
13. ***** ***** ***** ***** ***** ***** 3 Writ Appeal No. 35 of 2015 Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals)
14. Whri W. Marbaniang 11.11.1997 3.10.2006 03.10.2006 PU Passed 5 years (Petitioner of WP(C)No.297/2014
15. Shri K. Syiemiong 02.10.1984 4.10.2006 04.10.2006 Graduate 5 years (respondent No.8)
16. Shri G. Lyngdoh 22.03.1979 4.10.2006 04.10.2006 Graduate 5 years (respondent No.10)
17. ***** ***** ***** ***** ***** ***** In the due course of time, the Government of Meghalaya proceeded to sanction 5(five) number of post of Assistant Enforcement Inspector for the office of the Commissioner of Transport in the scale of Rs.9,900-19,370 plus admissible allowances; and this sanction was conveyed by way of the letter bearing No.TPT.16/2011/21 dated 26.09.2013 that reads as under:-
"GOVERNMENT OF MEGHALAYA TRANSPORT DEPARTMENT No.TPT.16/2011/21 Dated Shillong, the 26th September 2013 From: Shri W. Nongsiej, MCS, Joint Secretary to the Govt. of Meghalaya, Transport Department To, The Commissioner of Transport, Meghalaya, Shillong Subj: Sanction for Creation of 5(five) posts of Assistant Enforcement Inspectors.
Sir, I am directed to convey the sanction of the Governor of Meghalaya to the creation of 5(five) posts of Assistant Enforcement Inspectors for the office of the Commissioner of Transport, Shillong in the scale of pay Rs.9900-250-11650-EB-320-14530-440-19370/- p.m. plus other allowances as admissible for a period upto 28-02-2014 with effect from the date of entertainment.
The expenditure is debitable to the Head of Account "2014- Taxes on Vehicles-101-Collection Charges (01) Establishment of District Transport Officers & Secretary, etc 01-Salaries-Sixth Schedule (Part-II) Areas Non Plan" during the current year‟s Budget 2013-14.
This sanction is issued with the concurrence of Finance (EC.II) Department vide their ID.No.FIN. EC.II.724/12, dt.11.09.2013.
Yours faithfully, Sd/-
Joint Secretary to the Govt. of Meghalaya Transport Department"4
Writ Appeal No. 35 of 2015
Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) By another order bearing No.TPT.16/2011/22 of the even date i.e., 26.09.2013, the Joint Secretary to the Government asked the Commissioner of Transport, Meghalaya to carry out necessary amendments in the draft service rules, inter alia, to the effect that „the post of Assistant Enforcement Inspector is to be filled up by promotion from amongst Enforcement checkers who possess Graduate Degree and who have put in not less than 5(five) years services as such and also to reserve 33% of the posts of Enforcement Inspectors to allow promotion from amongst the Assistant Enforcement Inspectors to the post of Enforcement Inspectors‟; and the particulars with service records of the qualified Enforcement Checkers with ACRs for last 5(five) years were requisitioned. The said letter No.TPT.16/2011/22 dated 26.09.2013 reads as under:-
"GOVERNMENT OF MEGHALAYA TRANSPORT DEPARTMENT No.TPT.16/2011/22 Dated Shillong, the 26th September, 2013 From:- Shri W Nongsiej, MCS, Joint Secretary to the Govt. of Meghalaya, Transport Department To The Commissioner of Transport, Meghalaya, Shillong Sub:- Proposal for Creation of Post of Assistant Enforcement Inspectors Ref. enco: No.Com/Trans/2007/5/30, dt.13.01.2011 Madam, I am directed to inform you that the Government has sanctioned 5(five) nos. of posts of Assistant Enforcement Inspector in order to provide promotional avenues to the senior graduate Enforcement Checkers.
In view of the above, you are advised to modify your Draft Service Rule as follows:-
"The post of Assistant Enforcement Inspector is to be filled up by promotion from amongst Enforcement checkers who possess Graduate Degree and who have put in not less than 5(five) years service as such" and also to reserve 33% of the posts of Enforcement 5 Writ Appeal No. 35 of 2015 Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) Inspectors to allow promotion from amongst the Assistant Enforcement Inspectors, to the post of Enforcement Inspectors and 67% by direct recruitment and to resubmit the same for further necessary action.
You are also requested to furnish the list of the qualified Enforcement Checkers according to their seniority along with ACRs for last 5(five) years and their Integrity.
Yours faithfully, Sd/-
Joint Secretary to the Govt. of Meghalaya Transport Department"
After the decisions and communications aforesaid, the Government of Meghalaya in its Transport Department issued the instructions for procedure to be followed for recruitment to the post of Assistant Enforcement Inspector by way of the Office Memorandum No.TPT.16/2011/24 dated 27.03.2014, which reads as under:-
"GOVERNMENT OF MEGHALAYA TRANSPORT DEPARTMENT OFFICE MEMORANDUM Dated Shillong, the 27th March 2014 No.TPT.16/2011/24 - On creation of the post of Assistant Enforcement Inspector and pending framing and finalization of the Meghalaya Transport (Subordinate) Service Rules, the Governor of Meghalaya, is pleased to order that the following procedure should be followed in the manner of recruitment to the post below:-
1. Assistant Enforcement Inspector:- Promotion to the post of Assistant Enforcement Inspector shall be made from the persons/incumbents holding the post of Enforcement Checkers who possess Graduate Degree and who put in not less than 5 (five) years service as such based on seniority-cum-merit subject to the recommendation of the Departmental Promotion Committee.
2. Departmental Promotion Committee - (1) For the purpose of consideration of the promotion to the post of Assistant Enforcement Inspector, the Departmental Promotion Committee shall consist with the following members:
(i) Principal Secretary/Commissioner & - Chairman Secretary/Secretary to the Govt. of Meghalaya, Transport Department
(ii) Commissioner & Secretary/Secretary - Member to the Govt. of Meghalaya, Personnel Department, or his representative 6 Writ Appeal No. 35 of 2015 Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals)
(iii) Commissioner & Secretary/Secretary to - Member the Govt. of Meghalaya, Finance Department, or his representative
(iv) Commissioner of Transport, Meghalaya- Member Secretary (2) The Committee may invite any other person to attend the meeting if it considered necessary.
2. The Appointing Authority:- The Appointing Authority shall be the Commissioner of Transport.
3. The number of posts with scale of pay is indicated in the Schedule-I enclosed.
4. These orders shall remain in force till the finalization/amendment of the Service Rules (Sd/- Y. Tsering) Principal Secretary to the Govt. of Meghalaya, Transport Department"
It appears that the writ petitioners, who are non-graduates, made certain representations seeking promotion to the post of Assistant Enforcement Inspector but ultimately, the private respondents to the writ petitions, who are graduates and had put in 5 (five) years of service, were ordered to be promoted to the post of Assistant Enforcement Inspector on the basis of Departmental Promotion Committee („DPC‟) held on 09.05.2014. The order of promotion so issued on 09.07.2014 was questioned in the batch of writ petitions leading to these appeals.
By the impugned order dated 06.11.2015, the learned Single Judge has proceeded to allow the writ petitions essentially on the considerations that: (i) the State Government failed to assign any reason as to why the post of Assistant Enforcement Inspector was urgently sought to be filled up when the process of framing the recruitment rules under Article 309 was in progress; (ii) the classification of Enforcement Checkers into graduates and non- graduates was lacking in intelligible differentia and the State 7 Writ Appeal No. 35 of 2015 Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) Government failed to disclose any plausible reason for imposing such a criterion for promotion of Enforcement Checker to the post of Assistant Enforcement Inspector whereby the writ petitioners, the senior non-graduate Enforcement Checkers were deprived of promotion; and (iii) as per Article 320(3) of the Constitution of India, the Meghalaya Public Service Commission was required to be, but was not, consulted in the matter. The learned Single Judge inter alia, observed and held as under:-
"10. On bare perusal of the said office memorandum dated 27.03.2014, it is clear that the said DPC was not associated with the Meghalaya Public Service Commission (for short „MPSC‟) inasmuch as none of the members of the DPC was from the MPSC. In other words, the DPC was not associated with the MPSC and on the recommendation of the DPC, the Commissioner of Transport, Govt. of Meghalaya issued the impugned promotion order dated 09.07.2014 for promoting the private respondents to the post of Assistant Enforcement Inspectors. It is the further case of the petitioners that even if the petitioners are the senior Enforcement Checkers who had rendered their services between 35 years and 5 years had not been considered for promotion to the post of Assistant Enforcement Inspector and also the further case of the petitioners was that there was no special reason for holding the DPC urgently while the process for framing the recruitment rules of Assistant Enforcement Inspector under Article 309 of the Constitution of India was in progress. It is also the further case of the petitioner that the condition of service of the Assistant Enforcement Inspector should have been decided after consultation with the Public Service Commission as provided under Article 320(3) of the Constitution of India and also there is no intelligible differentia which have the nexus with the object of imposing educational qualification for promoting the Enforcement Checkers to the post of Assistant Enforcement Inspector.
11. The affidavit-in-opposition of the State respondents i.e. respondent No.3 surprisingly did not mention any reason as to why the said 5 (five) posts of Assistant Enforcement Inspectors were to be filled up urgently when the process for framing the recruitment rules for the post of Assistant Enforcement Inspector under Article 309 of the Constitution of India was in progress. In the affidavit-in-opposition filed by the respondent No.3 there is not even a whisper as to why the Public Service Commission as provided under Article 320(3) of the Constitution of India was not consulted before issuing the executive order under which the graduate was the essential criteria for consideration for promotion of Enforcement Checker to the higher post of Assistant Enforcement Inspector. Further the affidavit-in-opposition filed by the respondent No.3 did not even disclose the intelligible differentia having nexus with the object of issuing the executive order/decision under which the graduate was the essential criteria for promoting the Enforcement Checker to the higher post of Assistant Enforcement Inspector. For easy reference, under Article 320(3) of the Constitution of India reads as follows:-8 Writ Appeal No. 35 of 2015
Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) "320(3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted-
(a) on all matters relating to methods of recruitment to civil services and for civil posts;
(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;
(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;
(d) on any claim by or in respect of a person who is serving or has served under the Government of India or the Government of a State or under the Crown of India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State;
(e) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown of India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award, and it shall be the duty of a Public Service Commission to advice on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor [***] of the State, may refer to them:
Provided that the President as respects the all-India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor [***], as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted."
12. On bare perusal of Article 320(3) of the Constitution of India, it is clear that the MPSC shall be consulted for the matter relating to methods of recruitment to the civil services and civil posts as well as suitability of candidates for such appointment and promotion. But in the present case, it appears from the record that the State Govt., while the process for framing the recruitment rules under Article 309 of the Constitution of India for the post of Assistant Enforcement Inspector was going on, had taken the executive decision that the graduate is the essential criteria for considering or promoting the Enforcement Checker to the higher post of Assistant Enforcement Inspector. In the course of hearing of the present writ petition, this Court put the pointed 9 Writ Appeal No. 35 of 2015 Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) question to the learned Addl. Sr.GA appearing for the State respondents as to whether or not the State Govt. had framed any rule such as "Exemption for consultation from the MPSC Rules"?.
However, the learned Addl. Sr.GA appearing for the State respondents utterly failed to give any reply.
13. Mr. HS Thangkhiew, learned senior counsel appearing for the private respondents supports the case of the private respondents by vehemently arguing that there are intelligible differentia having nexus with the object of issuing the executive order wherein the graduate is the essential criteria for consideration of the Enforcement Checker for promotion to the Assistant Enforcement Inspector. In support of his contention, learned senior counsel had drawn the attention of this Court to the different paras of the affidavit-in-opposition filed by the State respondents. Intelligible differentia having nexus with the object of issuing executive order wherein the graduate is the essential criteria for considering or promoting the Enforcement Checker to the Assistant Enforcement Inspector are to the disclosed by the State respondents and not by the private respondents because it is the State respondents who have to justify their order. As stated above, in the affidavit-in-opposition filed by the State respondent No.3 there is not even a whisper as to the intelligible differentia having nexus with the object of issuing executive instruction under which the graduate is the essential criteria for considering or promoting the Enforcement Checker to the Assistant Enforcement Inspector. It is also very clear that the State Govt. by issuing executive instruction which did not disclose any plausible reason for imposing the graduate as the essential criteria for promotion of Enforcement Checker to the Assistant Enforcement Inspector, did not consider the case of the petitioners who are senior non-graduate Enforcement Checkers for promotion to the Assistant Enforcement Inspector. Therefore, it is the case of the petitioners that the rights of the petitioners guaranteed under Articles 14 and 16 of the Constitution of India had been infringed by not considering their case for promotion to the post of Assistant Enforcement Inspector."
In view of the findings aforesaid, the learned Single Judge proceeded to set aside the impugned promotion order dated 09.07.2014 but left it open for the State Government to fill up the said post of Assistant Enforcement Inspector, if there were exigencies of service, by following due process of law. The learned Single Judge also left it for the Government to frame the recruitment rules as expeditiously as possible and also to issue the executive order, if necessary for filling up the posts, while keeping in view Articles 14, 16, 154, 162, 309 and 320 of the Constitution of India. The learned Single Judge allowed the writ petitions in the following:- 10 Writ Appeal No. 35 of 2015
Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) "15. For the forgoing reasons, this Court has no alternative except to interfere with the impugned promotion order dated 09.07.2014. Thus, the impugned promotion order dated 09.07.2014 is hereby set aside.
However, it is left to the State respondents to fill up the said 5 (five) posts of Assistant Enforcement Inspectors if there be any exigencies of service of Assistant Enforcement Inspector by following due process of law as expeditiously as possible. It is also left to the State Govt. to frame the recruitment rules for the post of Assistant Enforcement Inspector under Article 309 of the Constitution of India as expeditiously as possible by following due process of law and also may issue executive order, if necessary, for filling up the post of Assistant Enforcement Inspector keeping in view of the Articles 14, 16, 154, 162, 309 and 320 of the Constitution of India." Aggrieved by the order so passed by the learned Single Judge, the State of Meghalaya and its officers in the Transport Department as also the respondents No.6, 8, 9 and 10 of the writ petitions (the incumbents who had been promoted under the questioned promotion order dated 09.07.2014 have preferred these intra-court appeals.
Assailing the common order dated 06.11.2015, it has been contended by the learned Senior Government Advocate for the State appellants that the writ petitioners (contesting respondents herein) did not challenge the Order dated 26.09.2013 as also the Office Memorandum dated 27.03.2014 wherein, the criteria were laid down for promotion from amongst Enforcement Checkers to the post of Assistant Enforcement Inspector but only challenged the consequential order of promotion. According to the learned Sr. GA, in the absence of any challenge to the aforesaid Order dated 26.09.2013 and Office Memorandum dated 27.03.2014, the writ petitioners were not entitled to any relief.
The learned Sr. GA has also argued that even in the absence of the statutory rules governing the service, promotions could be made based on the policy guidelines; and in the present matter, the State Government has rightly issued such policy guidelines for promotion to the post of Assistant Enforcement Inspector while prescribing the 11 Writ Appeal No. 35 of 2015 Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) educational qualification of graduation in view of the nature and details of the job to be performed on the next higher post.
The Sr. GA has further argued that the learned Single Judge has erred in making the observations as if the promotion in question could be considered hit by the requirements of Article 320 of the Constitution of India. The learned Sr.GA has submitted that in fact, such a ground on the anvil of Article 320 was not even pleaded in the writ petition and there was no occasion for the appellants to respond to such a ground of challenge to the order of promotion. In any case, the learned Sr. GA would contend, the allegation of want of compliance to the requirement of Article 320(3) of the Constitution is not fatal to the promotions in question.
The learned Sr.GA has yet further contend that in exercise of powers conferred by the proviso to Clause (3) of Article 320 of the Constitution of India, the Governor of Meghalaya has been pleased to issue the Meghalaya Public Service Commission (Limitations of Functions), Regulations, 1972 [„the Regulations of 1972‟ hereafter]; and it has been clearly provided in Regulation 4 thereof that consultation of MPSC was not necessary on the principles to be followed in making promotions or on the suitability of candidates for promotion in the cases of: (a) promotion to a service by an authority other than the Governor; and (b) promotion from a lower to a higher grade or post within the same service according to the rules of the service. According to the learned Sr.GA, the Commissioner of Transport is the appointing authority for the posts involved in the present proceedings and not the Governor and hence, the 12 Writ Appeal No. 35 of 2015 Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) requirements of consultation of MPSC is not applicable hereto, in view of the Regulation 4 aforesaid.
The learned Sr. GA has relied on the decisions in State of U.P. Vs. Manbodhan Lal Srivastava: AIR 1957 SC 912; Banwarilal Agarwalla Vs. State of Bihar and others: AIR 1961 SC 849 and Sri Chandan Keshab Das Vs. State of Assam 2012 SCC Online Gau 77.
The learned senior counsel appearing for the private appellants (the incumbents who had been promoted under the impugned promotion order dated 09.07.2014) has also assailed the order impugned with further submissions that the conclusion of the learned Single Judge on the requirement of consultation of MPSC is founded on incorrect and erroneous premise. The learned senior counsel has contended that the words „shall be consulted‟ in Article 320(3) are not to be constructed in the sense that in default of consultation, the action of Government would be illegal or void. In this regard, apart from relying on the decision in Manbodhan Lal Srivastava (supra), the learned counsel for these appellants has also relied on the decisions of the Hon‟ble Supreme Court in the cases of Major U.R. Bhatt Vs. Union of India: AIR 1962 SC 1344; and Union of India Vs. T.V. Patel: (2007) 4 SCC 785.
Per contra, while supporting the order impugned and opposing these appeals, the learned counsel for the writ petitioners has contended that the argument of the appellants that the classification amongst Enforcement Checkers is legal and valid is not sustainable because the questioned classification is not founded on intelligible differentia having a rational nexus with the object sought to be achieved, which could reasonably distinguish the persons grouped 13 Writ Appeal No. 35 of 2015 Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) together from others left out of the group. The learned counsel has relied on the decision of the Hon‟ble Supreme Court in the case of Confederation of Ex-Servicemen Association & Others Vs. Union of India and Ors. (2006) 8 SCC 399. Further, with reference to the decision of the Apex Court in Mohamed Sujat Ali and Ors Vs. Union of India and others: AIR 1974 SC 1631, the learned counsel has argued that discrimination based on educational qualification does not relate with nature of duties but only results in defeating the right of equality, particularly when the appellants have failed to establish and co-relate the nexus between requirement of a graduate degree and the duties to be discharged by Assistant Enforcement Inspector.
The learned counsel for the writ petitioners has further argued that the plea of intelligible differentia was not taken by the State Appellants before the learned Single Judge; and having not been established by way of counter affidavit, cannot be urged in the manner attempted by the appellants. The learned counsel has referred to and relied upon the decision in Bharat Singh Vs. State of Haryana: (1988) 4 SCC 534 and Rajasthan Pradesh Vaidya Samiti Vs. Union of India:
(2010) 12 SCC 609.
The learned counsel for the writ petitioners has yet further argued that the contention urged by the appellants with reference to the Regulations of 1972 does not make out a case for interference because, according to the learned counsel, the case at hand falls in the second category of cases in Regulation 4 thereof; and in the absence of rules, consultation with the Public Service Commission is mandatory before deciding on the suitability of candidates for promotion. Thus, 14 Writ Appeal No. 35 of 2015 Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) according to the learned counsel, the ratio of the decisions relied upon by the appellants do not make out a case for interference in appeal.
Having given anxious consideration to the rival submissions and having examined the record, we find it difficult to endorse the order impugned; and in the given set of facts and circumstances, we are of the view that the matter requires re-consideration by the learned Single Judge of this Court.
In a summation of the background aspects, it is noticed that the post of Assistant Enforcement Inspector came to be created on 26.09.2013 and on the same date, the Government also provided that the draft Service Rules may be modified to the effect that such post of Assistant Enforcement Inspector shall be filled up by promotion from amongst Enforcement Checker who were possessed of graduate degree and had put in minimum 5 (five) of service. Thereafter, the Office Memorandum dated 27.03.2014 was issued, laying down the procedure for promotion to the post of Assistant Enforcement Inspector; and ultimately, the private appellants herein were promoted, for being the graduates and having put in more than 5 (five) years of service. In that process, the writ petitioners, some of whom were standing senior to all the private appellants and some of whom were standing senior to some of the private appellants, were left out because of want of the educational qualification of graduation.
As noticed, the learned Single Judge found such an exercise by the Government in promoting the private appellants and in denying promotion to the writ petitioners to be unjustified on the grounds: (i) that when the process of making the Rules was in progress, there was little justification in holding the DPC for promotions; (ii) that the 15 Writ Appeal No. 35 of 2015 Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) classification of Enforcement Checkers into graduates and non- graduates was lacking in intelligible differentia and the State Government failed to disclose any plausible reason for imposing such a criterion whereby, the senior non-graduate Enforcement Checkers were deprived of promotion; and (iii) that MPSC was not consulted in the process as was required by Article 320(3) of the Constitution of India It is sought to be argued on behalf of the appellants that consultation with MPSC was not requisite in view of Regulations of 1972 and want of such a consultation does not render the decision taken by the Government invalid. On the other hand, it is sought to be suggested on behalf of the writ petitioners that their case is covered by the second clause of Regulation 4 of the Regulations of 1972. However, the relevant aspect of the matter remains that such a ground on the anvil of Article 320 of the Constitution of India was not taken in the writ petitions and consequently, there was no reply by the present appellants on the said ground before the learned Single Judge. When the ground was not pleaded in the petitions, we are unable to find the basis for the observations in the order impugned that there was not a whisper in the counter affidavit as to why MPSC was not consulted. Moreover, it appears that the relevant principles of law enunciated by the Hon‟ble Supreme Court in the decisions referred by the learned counsel for the appellants in the present appeals totally escaped the attention of the learned Single Judge. Similarly, the import and effect of the provisions contained in the Regulations of 1972 also did not acquire the attention of the learned Single Judge. In the totality of 16 Writ Appeal No. 35 of 2015 Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) circumstances, we are of the view that the relevant factors need to be examined with reference to the applicable legal principles.
We are also unable to find legal justification in the observations made by the learned Single Judge on the question of propriety in holding the DPC for promotions when the process of making the Rules was in progress. It cannot be laid down that there is an absolute prohibition in law against making of promotions on executive instructions when the Rules are not in place. Merely because the process of making the Rules was under way, that by itself did not operate prohibitive for the Government in issuing relevant instructions and in making promotions in the exigencies of service. This aspect of the matter also requires re-consideration.
Further, on the question as to whether there was no nexus to the educational qualification as provided in the executive instructions to the post to be held on promotion, the learned Single Judge appears to have not taken into consideration the fundamental facts that five number of posts of Assistant Enforcement Inspector were created only on 26.09.2013 "in order to provide promotional avenues to the senior graduates Enforcement Checkers", as distinctly mentioned in the Order No.TPT.16/2011/22, issued on 26.09.2013 simultaneously with the other Order No.TPT.16/2011/21 of the even date. Moreover, it has also been provided that 33% posts of Enforcement Inspectors were to be reserved for promotion from amongst Assistant Enforcement Inspectors; and significantly, on the said post of Enforcement Inspector, for direct recruitment also, the essential qualification provided had been of graduation. Further the process of promotion from the post of Enforcement Checker to the post of Assistant 17 Writ Appeal No. 35 of 2015 Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) Enforcement Inspector was specified in the Office Memorandum dated 27.03.2014. It has been argued on behalf of the appellants that the aforesaid Order No.TPT.16/2011/22 dated 26.09.2013 as also the Office Memorandum dated 27.03.2014 were not even challenged in the petitions. A perusal of the petitions make it clear that even while stating grievance against denial of promotion, the writ petitioners chose not to challenge the aforesaid order dated 26.09.2013 as also the Office Memorandum dated 27.03.2014. It remains a moot question as to how was it expected of the respondents of the writ petitions to state justification as regards the qualification laid down in the said order and the Office Memorandum even when the orders/instructions as issued in that regard had not been specifically challenged in the writ petitions. This apart, in our view, the provisions for educational qualification for the post of Assistant Enforcement Inspector cannot be examined in isolation and detached from all the surrounding factors and the overall set up of the Department.
Significant it is to notice that even while disapproving the process of such promotion of the present private appellants, the learned Single Judge has not laid down that no promotion could be made; and in the last, the learned Single Judge has left it open for the State Government to issue the executive order, if necessary, for filling up the post of Assistant Enforcement Inspector, of course, while keeping in view Articles 14, 16, 154, 162, 309 and 320 of the Constitution. Even while making these observations, the learned Single Judge has not held that the requisite educational qualification cannot be laid down by way of executive instructions.
18Writ Appeal No. 35 of 2015
Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) In the totality of circumstances, when we find that several relevant aspects of the matter have escaped the attention of the learned Single Judge, it appears just and proper to set aside the order impugned and to restore the writ petitions for re-consideration by the learned Single Judge in accordance with law. For that matter, we would also leave it open for the parties to make appropriate prayer for amendment of the existing pleadings or for submission of additional pleadings, if so desired. Of course, any such prayer, if made, would be a matter for appropriate consideration of the learned Single Judge in accordance with law.
In the interest of justice, it is made clear that we have only taken note of the submissions of the parties and have only indicated the reasons wherefor re-consideration of the matter has been considered expedient and necessary. Obviously, we have not conclusively pronounced on the merits of the case either way; and the entire matter shall be open for re-consideration by the learned Single Judge on merits in accordance with law.
Accordingly, these appeals are allowed to the extent and in the manner indicated above and with the observations foregoing. The impugned common order dated 06.11.2015 is set aside; and the respective writ petitions (Nos.290 of 2014, 291 of 2014, 292 of 2014, 293 of 2014, 294 of 2014, 295 of 2014, 296 of 2014 and 297 of 2014) are restored for re-consideration by the learned Single Judge in accordance with law. The parties through their respective counsel shall stand at notice to appear before the learned Single Judge on 07.11.2016. The office shall restore the writ petitions to their number 19 Writ Appeal No. 35 of 2015 Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) and place the same before the learned Single Judge on the date so fixed.
The parties are left to bear their own costs of these appeals.
JUDGE CHIEF JUSTICE
Lam
20
Writ Appeal No. 35 of 2015
Shri Damien Rongrin v. State of Meghalaya and others (and connected appeals) Schedule to the Judgment in Writ Appeal No. 35 of 2015
1. WA No. 35 of 2015- Shri Damien Rongrin v. State of Meghalaya & ors
2. WA No. 36 of 2015- Shri. Khrawborlang Syiemiong v. State of Meghalaya & ors
3. WA No. 37 of 2015- Shri. Oldash M Sangma v. State of Meghalaya & ors
4. WA No. 38 of 2015- Shri Geralson Lyngdoh v. State of Meghalaya & ors
5. WA No. 39 of 2015- State of Meghalaya & ors v. Shri Humbert Patrick Syiem
6. WA No. 16 of 2016- State of Meghalaya & ors v. Shri Philarson Marak
7. WA No.17 of 2016 - State of Meghalaya & ors v. Shri Flamingstar Wahlang
8. WA No. 18 of 2016 - State of Meghalaya & ors v. Shri Bawal K.R. Marak
9. WA No.19 of 2016 - State of Meghalaya & ors v. Shri Henitson K. Kharkongor
10. WA No. 20 of 2016 - State of Meghalaya & ors v. Shri Teilang Syiem
11. WA No. 21 of 2016 - State of Meghalaya & ors v. Shri Godfrey Balsam W. Momin
12. WA No. 22 of 2016 - State of Meghalaya & ors v. Shri Willington Marbaniang
13. WA No.23 of 2016 - Shri Khrawborlang Syiemiong v. State of Meghalaya & ors
14. WA No. 24 of 2016 - Shri Khrawborlang Syiemiong v. State of Meghalaya & ors
15. WA No. 25 of 2016 - Shri Khrawborlang Syiemiong v. State of Meghalaya & ors
16. WA No. 26 of 2016 - Shri Khrawborlang Syiemiong v. State of Meghalaya & ors
17. WA No. 27 of 2016 - Shri Khrawborlang Syiemiong v. State of Meghalaya & ors
18. WA No. 28 of 2016 - Shri Khrawborlang Syiemiong v. State of Meghalaya & ors
19. WA No. 29 of 2016 - Shri Khrawborlang Syiemiong v. State of Meghalaya & ors
20. WA No. 30 of 2016 - Shri Geralson Lyngdoh v. State of Meghalaya & ors
21. WA No. 31 of 2016 - Shri Geralson Lyngdoh v. State of Meghalaya & ors
22. WA No. 32 of 2016 - Shri Geralson Lyngdoh v. State of Meghalaya & ors
23. WA No. 33 of 2016 - Shri Geralson Lyngdoh v. State of Meghalaya & ors
24. WA No. 34 of 2016 - Shri Geralson Lyngdoh v. State of Meghalaya & ors
25. WA No. 35 of 2016 - Shri Geralson Lyngdoh v. State of Meghalaya & ors
26. WA No. 36 of 2016 - Shri Geralson Lyngdoh v. State of Meghalaya & ors
27. WA No. 37 of 2016 - Shri Damien Rongrin v. State of Meghalaya & ors
28. WA No. 38 of 2016 - Shri Damien Rongrin v. State of Meghalaya & ors
29. WA No. 39 of 2016 - Shri Damien Rongrin v. State of Meghalaya & ors
30. WA No. 40 of 2016 - Shri Damien Rongrin v. State of Meghalaya & ors
31. WA No. 41 of 2016 - Shri Damien Rongrin v. State of Meghalaya & ors
32. WA No. 42 of 2016 - Shri Damien Rongrin v. State of Meghalaya & ors
33. WA No. 43 of 2016 - Shri Damien Rongrin v. State of Meghalaya & ors
34. WA No. 44 of 2016 - Shri Oldash M Sangma v. State of Meghalaya & ors
35. WA No. 45 of 2016 - Shri Oldash M Sangma v. State of Meghalaya & ors
36. WA No. 46 of 2016 - Shri Oldash M Sangma v. State of Meghalaya & ors
37. WA No. 47 of 2016 - Shri Oldash M Sangma v. State of Meghalaya & ors
38. WA No. 48 of 2016 - Shri Oldash M Sangma v. State of Meghalaya & ors
39. WA No. 49 of 2016 - Shri Oldash M Sangma v. State of Meghalaya & ors
40. WA No. 50 of 2016 - Shri Oldash M Sangma v. State of Meghalaya & ors