Meghalaya High Court
Shri Thomas Marak vs State Of Meghalaya on 13 October, 2017
IN THE HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 409 of 2014
Shri Thomas Marak
S/o Late Banjang Sangma
Village Williamnagar
P.O. Williamnagar
East Garo Hills District, Meghalaya
... Petitioner
- Versus -
1. The State of Meghalaya
Through the Commissioner and Secretary
to the Government of Meghalaya
Department of Health Services (MI),
Meghalaya, Shillong
2. The Director of Health Services, (MI)
Government of Meghalaya,
Meghalaya, Shillong.
3. The Jt. Director,
Economics and Statistics,
Meghalaya, Shillong
4. District Tuberculosis Officer,
District Tuberculosis Centre,
Williamnagar, East Garo Hills District
5. Meghalaya Public Service Commission
Represented by the Secretary, MPSC,
Shillong, Meghalaya
6. Shri Sinlang Hahshah,
Statistical Assistant,
Office of the District Tuberculosis Centre,
East Garo Hills, Williamnagar
... Respondents
BEFORE
HON'BLE MR. JUSTICE V.P. VAISH
Present
Ms. Q.B. Lamare, Advocate : Counsel for Petitioner
Mr. S. Sen Gupta, Advocate : Counsel for Respondents No. 1 to 4
Mr. B. Khyriem, Advocate : Counsel for Respondent No. 5
Ms. P. Agarwal, Advocate : Counsel for Respondent No. 6
Date of Hearing : 09.10.2017
Date of Judgment : 13th October, 2017
WP(C) No. 409 of 2014 Page 1 of 9
JUDGMENT
By way of the present petition, the petitioner seeks declaration of the order No. ESA. 28/2006/218 dated 2nd December, 2014 as being illegal and unconstitutional and further to issue a writ of certiorari to quash and set aside the order dated 2nd December, 2014 issued by respondent No. 3. The petitioner also prays for a direction to the respondents to advertise the post Statistical Assistant and to allow him to participate in the said Selection Process.
2. Briefly stated, the facts as averred in the writ petition are that the petitioner is holding a Master Degree in Philosophy. Vide order dated 30th June, 2005 issued by respondent No. 2, the petitioner was allowed to officiate as Statistical Assistant and attached to the District TB Centre, Williamnagar, East Garo Hills for a period of two months only with a break of seven days, in the Scale of Pay of Rs. 5300-150- 6200-EB-160-7480-170-9180/- per month.
3. It is stated that from time to time, the petitioner was allowed to officiate in the vacant post of Statistical Assistant vide different orders dated 26th September, 2005, 14th November, 2005, 27th February, 2006, 11th April, 2006 and 24th May, 2006 issued by respondent No. 2, however, with a break of seven days till 2006 and from January, 2007 till 2011 allowed to officiate in the said post for a period of three months with one day break.
4. During this period the petitioner had also attended a training course held from 11th to 15th September, 2006 at Bhubaneswar. It is stated that the petitioner continued to work in the aforesaid Office without any complaint from any quarter. WP(C) No. 409 of 2014 Page 2 of 9
5. It is further stated that the petitioner participated and contributed significantly in the training on RNTCP Drug Logistics Management held at R.P. Chest Hospital, Shillong, Meghalaya from 27th to 28th April, 2011. After serving for more than ten years, the petitioner was expecting that either his services will be regularized by the respondents, or will be advertised for giving him an opportunity to participate in the selection process thereof.
6. The petitioner has also stated that the Meghalaya Public Service Commission, Shillong (MPSC) vide letter dated 21st March, 2013 invited applications for recruitment to various categories of posts specified in the table of the advertisement. It is stated that the post of the petitioner was not advertised by the Department or by the MPSC, and therefore, he could not apply for the post mentioned in the said advertisement. However, the respondent No. 6 applied for the post advertised in the said advertisement.
7. It is also stated that after the publication of the aforesaid advertisement, the respondent No. 2 issued various orders extending and allowing the petitioner to officiate as Statistical Assistant under District T.B. Centre, Williamnagar.
8. Another advertisement dated 17th June, 2014 was issued by respondent No. 5 MPSC, inviting application for filling various posts mentioned in the said advertisement. However, the petitioner expecting that his services will regularized by the respondents in the said post, did not apply.
9. Vide letter dated 3rd December, 2014 respondent No. 2 had informed the District Medical and Health Officer, West Jaintia Hills, Jowai and the District Medical and Health Officer, East Garo Hills, WP(C) No. 409 of 2014 Page 3 of 9 Williamnagar that renewal of their officiating appointment order is no longer required, as the MPSC has forwarded the names of the recommended candidates to the post.
10. It is stated by the petitioner that the name of respondent No. 6 was recommended by the respondents and an order dated 2nd December, 2014, which is impugned in the present petition, was issued, whereby respondent No. 6 was appointed temporarily as Statistical Assistant in place of the petitioner.
11. The petitioner challenged the appointment process as contrary to public interest, police and practice. The recommendation of respondent No. 6 by the respondent No. 5, MPSC is also questioned by the petitioner as arbitrary, tainted by mala fide or oblique consideration or motive and the same being not fair, and thus, prays for setting aside and quashing the impugned order dated 2nd December, 2014.
12. The petition has been opposed by the respondents No. 2, 3, 5 and 6 respectively by filing affidavits-in-opposition.
13. Learned counsel for the petitioner contended that the recommendation was made by the respondent No. 5 MPSC without advertising the said post of Statistical Assistant in the District T.B. Centre, Williamnagar. It is further argued that the advertisements did not authorise the MPSC to select or recommend the name of respondent No. 6 for filling up the post of the petitioner.
14. It was further argued by learned counsel for the petitioner that the MPSC has not followed the established existing practice for selection to the post in question by issuing advertisement. There was no valid reason for the Commission to dispense with the established WP(C) No. 409 of 2014 Page 4 of 9 practice of selection and/or recommendation for the post of Statistical Assistant in the District T.B. Centre, Williamnagar.
15. The counsel for respondents, on the other hand, urged that due to essentiality of service and urgency of work, the petitioner was allowed to officiate as Statistical Assistant for a period of two months with seven days break. The appointment was purely temporary, till the post is filled up by a candidate recommended by the Meghalaya Public Service Commission.
16. Learned counsel for respondents submitted that the petitioner has no legally enforceable right, inasmuch as the appointment of the petitioner was made dehors the rules. The petitioner also did not apply pursuant to the advertisement for various posts issued by the MPSC. It is stated that the appointment of respondent No. 6 was made on the basis of due selection process, and that the petitioner cannot have any grievance, inasmuch as the availability of a duly selected candidate, the petitioner must give way to such candidate and as such the appointment of respondent No. 6 cannot be faulted with.
17. I have heard learned counsel for both the parties and also carefully perused the material on record.
18. It is not in dispute that initially the petitioner was allowed to officiate as Statistical Assistant for two months with seven days break. The respondents have admitted that the appointment of the petitioner was made dehors the rules, and in view of the settled law, such appointments have no legally enforceable right. Moreover, a perusal of the appointment orders issued from time to time to the petitioner clearly mentioned that the petitioner was allowed to officiate WP(C) No. 409 of 2014 Page 5 of 9 as Statistical Assistant attached to District T.B. Centre, Williamnagar, East Garo Hills, pending filling up of the said post by a candidate to be recommended by the Meghalaya Public Service Commission. One of such order dated 30th June, 2005 (Annexure-1 of the writ petition) is reproduced herein below:-
"ORDERS OF THE DIRECTOR OF HEALTH SERVICES (MI) MEGHALAYA :: SHILLONG No. HSM/ESTT/EG/3/2004/12149 Dt. Shillong, the 30-6-05 Pending filling up the post by candidates recommended by Meghalaya Public Service Commission/Director of Economics & Statistics, Meghalaya and subject to discharge with out notice & assigning any reason thereof Shri Thomas Marak, an outsiders is hereby allowed to officiate as Statistical Assistant attached to District T.B. Williamnagar, East Garo Hills for a period of 2(two) months only with a break of 7 (seven) days in the scale of pay Rs. 5300-150-6200-EB-160-7480-170-9180/- P.M. Sd/- Dr (Mrs) M. Rynjah Director of Health Services (MI) Meghalaya :: Shillong."
19. The petitioner also submit an undertaking with the respondents that his appointment is purely temporary and that he has neither any right to claim for regular appointment nor any right to raise objection if his service is terminated/discontinued by the appropriate authority. The petitioner knew very well the nature of his appointment. The undertaking form given by the petitioner (Annexure- 2 of the affidavit-in-opposition filed on behalf of respondent No. 2) is reproduced hereunder:-
"UNDERTAKING FORM I Shri/Smt- THOMAS N. MARAK who is allowed to officiate as STATISTICAL ASSISTANT on purely temporary basis in the office of DISTRICT T.B. CENTRE WILLAIMNAGAR do hereby undertake that I have either no right to claim for regular appointment in the or objection if my service are terminated/Discontinued by the appropriate authority.
Date-22/6/2007 Sd/-
(THOMAS N. MARAK)
WP(C) No. 409 of 2014 Page 6 of 9
Signature of the Applicant."
20. It is thus clear that pending the recommendation of the qualified candidate by the Meghalaya Public Service Commission, the petitioner was allowed to officiate temporarily for two/three months only with break in service. Vide letter dated 3rd December, 2014, the District Medical & Health Officer, Williamnagar and the District Medical & Health Officer, Jowai were informed that renewal of the officiating appointment was no longer required, as the Directorate of Economics and Statistics, Meghalaya had forwarded the names of the qualified candidates recommended by the Meghalaya Public Service Commission vide letter dated 2nd December, 2014.
21. The contention of the petitioner with regard to the non- issue of advertisement for the post in question falls to the ground in view of the specific stand taken by respondent No. 5 in paragraphs 7 and 8 of its counter affidavit. The said paragraphs 7 and 8 are reproduced herein below:-
"7. That in reply to the statements made in Paragraph 10, 11, 12 and 13 of the writ petition I beg to state that the advertisement dated 21.3.2013 (Annexure 11 page 39 of the Writ Petition) relates to the Statistical Officer/District Statistical Officer under the Directorate of Economics and Statistics and the advertisement dated 17.6.2014 (Annexure 12 page 46 of the Writ Petition) relates to the Statistical Assistant under Mining and Geology Department Meghalaya, of which the selection process is yet to be completed and as such has no relevance to the instant case. The post of Statistical Assistant of which recommendation was made by the Commission was on the basis of the advertisement dated 24.5.2011 (Annexure-1) and the list of the successful candidates was published by the Commission vide Notification dated 1.9.2014 (Annexure-2)
8.The advertisement was made on the basis of the requisition received from the Director of Economics and Statistics vide his Letter No. ESA.28/2006/35, dated 30 th June, 2008 (Annexure-3) and his clarifications vide Letter No. ESA.28/2006/41, dated 16th February, 2009 (Annexure-4) & No. ESA.28/2006/45, dated 18th March 2009 (Annexure-5) in response to the issue raised by the Commission vide Letter Nos. MPSC/D-6/1/2008-2009/3, dated 5th February, 2009 (Annexure-6) & No. MPSC/D-WP(C) No. 409 of 2014 Page 7 of 9
6/1/2008-2009/6, dated 6th March, 2009 (Annexure-7). At Sl. No. 13 of the same advertisement, one post of Statistical Assistant in Statistical Cell, Directorate of A.H. and Veterinary, Shillong was included. This was because a separate requisition was sent by the Director A.H. & Veterinary. After the issue of the advertisement, the Under Secretary to the Government of Meghalaya, Planning Department informed the Commission, vide Letter No. PLA. 71/97/710, dated 22nd June, 2011 (Annexure-8), that no direct recruitment should be made to any Statistical Post by the concerned Department, all such recruitments are to be made by Planning Department. The Commission was asked to ensure compliance with Government's instruction, and that the post of Statistical Assistant in the Directorate of Animal Husbandry & Veterinary appearing in Sl. No. 13 of the advertisement should be included along with other posts of Statistical Assistant under the Planning Department. Consequently a decision was taken to merge the candidate's list arising out of the two items of Advertisement and to conduct a common recruitment for both. A Letter No. MPSC/D-6/1/2008-2009/27, dated 19th April, 2012 (Annexure-9) was addressed to the Director Economics and Statistics, requesting to inform the exact number of vacancies to be filled up through the said recruitment. The Director, vide Letter No. ESA. 28/2006/112, dated 12 June, 2012 (Annexure-10) informed of 18 vacancies inclusive of one post of Statistical Assistant in Directorate of Animal Husbandry & Veterinary. Another two vacancies in the office of the Sub- Divisional School Education Officer Tura and District School Education Officer, Williamnagar was informed vide Letter No. ESA. 28/2006/117, dated 24th August, 2012 (Annexure-
11). Finally, in 3rd September, 2012 (Annexure-12), the Director Economics and Statistics informed of another seven vacancies of the post of Sub-Inspector of Statistics which is identical of the post of Statistical Assistant. The total number of vacancies which were to be considered by the Commission through the recruitment thus became 27. In the Advertisement, under the Heading "SUBMISSION OF APPLICATION FORMS" it has been clearly stipulated, at item No. 7, that the number of post indicated in the advertisement is tentative and subject to change at the time of recruitment.
In all recruitments conducted by the Commission in the past, the exact number of vacancies was always sought from the Department before the personal interviews were held and recommendation made by the Commission against those latest vacancies so informed, in accordance with the rules then in force. On the basis of the information thus received a Notification No. MPSC/D-12/2007-2008/20, dated 2nd May 2013 (Annexure-13) was issued wherein the number of vacancies to be filled up through the recruitment arising out of the above said advertisement was declared. After the application forms received by the Commission against the advertised posts were sorted out and scrutinized, 1376 applicants were found eligible and called for the written examination. The written examination was conducted on 19th July 2014 and 83 candidates were declared successful to appear for the personal interview fixed on 26 th, 27th and 28th WP(C) No. 409 of 2014 Page 8 of 9 August, 2014 (Annexure-14). The result was declared on 1st September, 2014 (Annexure-2) and 27 successful candidates were recommended for appointment against the vacancies declared under the above mentioned Notification.
The said advertisement was widely circulated and as such the Petitioner knew very well the said advertisement and ought to have taken part in the selection process. The contention of the Writ petitioner that the post held by him was not advertised is not correct."
22. Admittedly, the petitioner did not apply for the post of Statistical Assistant pursuant to the advertisement issued by the MPSC. The petitioner was only allowed to officiate as Statistical Assistant pending the filling up of the said post by a candidate to be recommended by the Meghalaya Public Service Commission. The appointment of respondent No. 6 was made after following the due selection process and as such his appointment cannot be faulted with.
23. In the light of the aforesaid discussion, I do not find any merit in the present petition. The same deserves to be dismissed and the same is hereby dismissed. There will be no order as to costs.
Dated: 13th October, 2017 JUDGE
V. Lyndem
WP(C) No. 409 of 2014 Page 9 of 9