Shri. Gordon Kynsai Nongkynrih vs . Union Of India & 9 Ors.
2022 Latest Caselaw 705 Meg

Serial No. 03
Supplementary List
                            HIGH COURT OF MEGHALAYA
                                  AT SHILLONG

  WP(C) No. 96 of 2022                             Date of Decision: 01.12.2022


  Shri. Gordon Kynsai Nongkynrih           Vs.          Union of India & 9 Ors.

  Coram:
                         Hon'ble Mr. Justice H. S. Thangkhiew, Judge


  Appearance:
  For the Petitioner/Appellant(s) :        Mr. S. Sen, Adv.

  For the Respondent(s)             :      Dr. N. Mozika, DSG with

Ms. T. Sutnga, Adv.

  i)         Whether approved for reporting in                Yes/No
             Law journals etc.:

  ii)        Whether approved for publication
             in press:                                        Yes/No


                             JUDGMENT AND ORDER

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. 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

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.

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. 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.

14. With the above noted directions, the writ petition accordingly

stands disposed of.

15. No order as to costs.

Judge Meghalaya 01.12.2022 "D.Thabah-PS"