Winje Rosalie G. Momin & Anr vs . State Of Meghalaya & Ors
2022 Latest Caselaw 13 Meg

       Serial No.02
       Regular List
                        HIGH COURT OF MEGHALAYA
                            AT SHILLONG
WP (C) No.301/2018 with
WP (C) No.302/2018 with
WP (C) No.306/2018
                                                  Date of Order: 10.02.2022
Winje Rosalie G. Momin & anr            Vs.       State of Meghalaya & ors
Florina Boro                            Vs.       State of Meghalaya & ors
Jude Rangku T. Sangma                   Vs.       State of Meghalaya & ors
Coram:
          Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
Appearance:
For the Petitioner/Appellant(s)    : Mr. AS Siddiqui, Sr.Adv with
                                     Mr. AG Momin, Adv
For the Respondent(s)              : Mr. ND Chullai, AAG with

Ms. R Colney, GA Mr. K Paul, Sr.Adv with Mr. S Thapa, Adv for R/2 Dr. N Mozika, Sr.Adv for R3-9, 11-16

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

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

JUDGMENT: (Oral)

The only question which falls for consideration in this matter

pertains to the inter-se seniority between groups of persons in the

Meghalaya Civil Service and the Meghalaya Police Service. The principal

ground urged by the writ petitioners is that since the writ petitioners were

appointed earlier in point of time than the private respondents herein, there

can be no question of ascertaining any inter-se seniority between the writ

petitioners and private respondents.

2. A rather absurd situation is presented on behalf of the State. The

State claims that in terms of Rule 16(4) of the Meghalaya Civil Service

Rules, 1975 the inter-se seniority between the persons who underwent the

process of examination together has to be determined, irrespective of when

such persons may have been appointed. The submission has to be repelled

without any further consideration.

3. The facts need to be recorded in some greater detail. Following an

advertisement issued on November 22, 2006 and the addendum that

followed in December of that year, a combined examination was conducted

for recruitment into the Meghalaya Civil Service (MCS) and the Meghalaya

Police Service (MPS) by the State Public Service Commission and a select

list in the descending order of merit was published on or about September

7, 2010 indicating a total of 74 successful candidates.

4. It may do well at this stage to refer to the reservation policy in the

State. Forty percent of the seats in public employment are reserved in the

State for the Khasi-Jaintia communities and a further 40 percent for the

Garo community. Five percent of the placements are reserved for other

backward tribes and communities of the State and the remaining 15 percent

recruitment is from the unreserved or open category. It is also submitted on

behalf of the appearing parties that there is no roster system followed in the

State.

5. Thus, for the reservation policy to be applied, if there are 100

vacancies and many more eligible candidates to choose from, the first 40 on

the basis of merit from among the Khasi-Jaintia candidates would be

eligible for appointment, as would be the first 40 percent on the basis of

merit from among the Garo community. Similarly, the first five according

to merit from other backward tribes and communities in the State would

also be entitled to be appointed and the remaining 15 would be appointed

from the eligible open category candidates based on merit.

6. In the usual course, it may not always be possible to fill up all

reserved seats since adequate numbers of candidates from the reserved

categories may not be available. Indeed, if there are 50 eligible candidates

and 40 vacancies, it may well be that in one of the categories the adequate

number of eligible candidates for the entire quota of seats reserved unto

such category may not be available. In such a scenario, based on the rules in

vogue in the State, the reserved seats are left vacant and carried over to the

next process of appointment or the unfilled reserved seats are filled up in

such a manner as may be prescribed by law.

7. It is equally common that the process of the examination is

conducted on a periodic basis and the results thereof or the merit list

prepared thereunder is kept alive for a particular period of time. It has been

judicially accepted in this country that the merit list can be kept valid for a

period of a year or so. That would imply that if the examination has been

held in a particular year, the vacancies in that particular year would be filled

up according to the reservation policy and the merit list prepared by the

State Public Service Commission; and, the unsuccessful candidates on the

merit list who fail to obtain any appointment in the initial process would be

in a kind of waiting-list; and, should any casual or regular vacancy occur

within the next year, the persons from the waiting-list would be

accommodated, subject to the reservation criteria as may be in vogue and

merit.

8. This is exactly what happened in this case. Out of the aforesaid

select list, prepared according to the merit by the State Public Service

Commission on September 7, 2010, the initial appointments were made to

the MCS on December 1, 2010 and 40 out of the 74 successful candidates,

in accordance with the reservation criteria and merit, were recruited. A

further 11 candidates were appointed on December 8, 2010, again based on

the reservation criteria and merit, in the MPS. It appears that one of the

successful candidates from the open or unreserved category chose not to

join and another who had been initially appointed in the MPS switched over

to MCS, but that would not be relevant for the present discussion. It is the

undisputed position that the select list published in September 7, 2010 was

extended for a period of four months on September 9, 2011, after the expiry

of a period of one year, and again extended up to May 9, 2012. This is some

significance in the present context. The examination was one, but

appointments were made in several tranches; not as a part of the same

recruitment process but under discrete processes.

9. The private respondents came to be appointed on or about May 8,

2012 from among the left-over candidates who had not been appointed in

the year 2010. Again the principle of reservation was applied and the

candidates were appointed according to their merit.

10. It transpires that in 2012 a seniority list was prepared and, in such

list, the persons recruited in the year 2010 and the persons recruited in the

year 2012 were clubbed together for determination of inter-se seniority

among them. This was patently absurd and completely without any element

of rationality or logic. It is elementary that an inter-se seniority list assumes

that all the persons in such list were appointed simultaneously, whether on

the same date or in the course of the same exercise. A person who has been

recruited or appointed earlier in point of time than another in the same post

can never be equated with the person appointed later even to the same post.

The very need for preparing an inter-se seniority list arises upon a number

of persons having been recruited to the same post simultaneously or by the

same process. It bears repetition that if several candidates have been

recruited or appointed to the same post on the same date, or in course of the

same exercise, only then would their inter-se seniority need to be

determined on the basis of the criteria which are fixed therefor.

11. In the present case, Rule 16(4) of the said Rules of 1975 provides

as follows:

"(4). The seniority of the members of the Service recruited after the commencement of these rules shall be in the order in which their names appear in the list prepared sub-rule (4) of Rule 6 or approved under Rule 8;

Provided that the members of the service recruited in year under clause (b) of sub-rule (1) of Rule 5 shall be senior to the members recruited in the same year under clause (a) of sub-rule (1) of Rule 5."

12. The proviso deals with two categories of employees since Rule 5

of the said Rules permits appointment by way of examination and,

simultaneously, appointment from among the members already serving the

State. The proviso is not relevant for the present purpose since the proviso

mandates that persons who were already in the State service and have been

recruited to a post will stand senior to persons who have been recruited

pursuant to an open examination for the purpose.

13. De hors the proviso, sub-rule (4) of Rule 16 of the said Rules

requires the inter-se seniority to be determined "in the order in which their

names appeared in the list prepared under sub-rule (4) of Rule 6 ..." Sub-

rule (4) of Rule 6 of the said Rules tasks the State Public Service

Commission to prepare a list of all the candidates who have qualified in the

examination "in order of merit which shall be determined in accordance

with the aggregate marks obtained by each candidate ..." Rule 6(4) of the

said Rules was adhered to - and there is no dispute in such regard - while

preparing the select list or merit list of September 7, 2010 referred to

earlier. It was on the basis of such merit list that the initial appointments of

December 1 and 8, 2010 were made to the MCS and MPS, respectively.

14. Since the merit list, as indicated earlier, is judicially accepted to

remain valid for a year or so, it was specifically revalidated after the expiry

of a year for a period of the next four months and, subsequently, revalidated

again for the further period up to May 9, 2012, a day after the final

recruitment was completed on May 8, 2012.

15. There is no doubt that in view of the reservation policy, open or

unreserved category candidates who fared much better than the reserved

category candidates could not be appointed in the year 2010. Some of such

candidates may have got the appointment in 2012. But it is completely

outlandish to suggest that since the candidates recruited in 2012 obtained

more marks than the candidates recruited in 2010 or ranked higher in the

merit list of September 7, 2010, such subsequently inducted employees

would stand on the same footing as the earlier recruited employees of 2010

or there would be any need for determining the inter-se seniority between

the persons appointed in 2010 and the persons appointed in 2012. It

completely defies logic and reason.

16. The seniority in a particular post, in a sense, indicates who had

occupied that post earlier. The need for determining the inter-se seniority

arises when several persons are appointed to the post simultaneously or on

the same day or in course of the same exercise. Such determination may be

necessary for future promotion. When the two sets of appointments are so

distinct and different in points of time as in 2010 and 2012, there is no

question of apples and orange being put in the same basket for the inter-se

seniority or two completely distinct classes of persons to be attempted to be

ascertained. The State government should have known better.

17. The tragedy is not in the State government having acted foolishly,

the real tragedy is that such ludicrous action is sought to be justified.

18. It is submitted by some of the respondents that the real issue

pertains to the subsequent promotion that the 2010 recruits and 2012

recruits must be eligible to obtain. It is not clear as to how the promotion

from the same post to the higher post in this case has to be determined and

the rules of the employer in such regard have to be adhered to. It is possible

that the promotion is on merit-cum-seniority basis when a separate set of

considerations will come into play than when promotion is on the seniority-

cum-merit basis. Whatever may be the case, it can never be lost sight of that

the 2010 recruits, which are the petitioners in the present case, came to be

appointed in the post much earlier than the 2012 recruits and will always be

regarded as senior to the 2012 recruits in the entry-level post. As to how the

seniority at the entry-level post will determine the future promotion, is an

altogether different kettle of fish and is not the subject-matter of the present

discussion.

19. The writ petition was instituted upon the representation given by

the petitioners in the year 2012 and again in 2014 being disregarded. Since

the petitioners had objected to the seniority list in 2012 itself and renewed

the dissent in 2014 and approached this Court in its extraordinary

jurisdiction shortly after the subsequent representation was rejected, there

does not appear to be any delay on the part of the petitioners in approaching

the Court. At any rate, in the context of the completely irrational situation

brought about by the State in treating 2010 recruits and 2012 recruits as the

same in terms of seniority, the Court is duty-bound to correct the colossal

mistake of the State.

20. The present petitions were disposed of by orders dated March 5,

2019. Such orders were carried in appeal and, by an order dated May 13,

2019, the three appeals were allowed by setting aside the orders dated

March 5, 2019 and remanding the matters for fresh consideration before the

Single Bench.

21. The matter has appeared before this Bench since two Hon'ble

Judges had grounds to recuse themselves. However, the real problem would

arise if any of the parties seeks to prefer an appeal against this order. Such

appeal may not be conveniently taken up in this Court, given the present

strength of Judges here.

22. WP (C) Nos.301, 302 and 306 of 2018 are allowed by holding

that the 2010 recruits to the entry-level post have to be regarded as senior to

the 2012 recruits to the same entry-level post, irrespective of whatever

future considerations may arise in determining their cases for promotion to

the next level.

23. There will, however, be no order as to costs.

24. MC [WP(C)] Nos.6, 7 and 8 of 2022 are disposed with liberty to

the applicants to apply under Article 226 of the Constitution, if necessary.

(Sanjib Banerjee) Chief Justice

Meghalaya 10.02.2022 "Lam DR-PS"