High Court of Meghalaya
Shri. Flamingstar Wahlang vs . State Of Meghalaya & Ors. on 21 March, 2022
Serial No. 03-43
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 292 of 2014 with
WP(C) No. 290 of 2014
WP(C) No. 291 of 2014
WP(C) No. 293 of 2014
WP(C) No. 294 of 2014
WP(C) No. 295 of 2014
WP(C) No. 296 of 2014
WP(C) No. 297 of 2014
WA No. 35 of 2015
WA No. 36 of 2015
WA No. 37 of 2015
WA No. 38 of 2015
WA No. 39 of 2015
WA No. 16 of 2016
WA No. 17 of 2016
WA No. 18 of 2016
WA No. 19 of 2016
WA No. 20 of 2016
WA No. 21 of 2016
WA No. 22 of 2016
WA No. 23 of 2016
WA No. 24 of 2016
WA No. 25 of 2016
WA No. 26 of 2016
WA No. 27 of 2016
WA No. 28 of 2016
WA No. 29 of 2016
WA No. 30 of 2016
WA No. 31 of 2016
WA No. 32 of 2016
WA No. 33 of 2016
WA No. 34 of 2016
WA No. 35 of 2016
WA No. 36 of 2016
WA No. 37 of 2016
WA No. 38 of 2016
WA No. 39 of 2016
WA No. 40 of 2016
WA No. 41 of 2016
WA No. 42 of 2016
WA No. 43 of 2016
WA No. 44 of 2016
WA No. 45 of 2016
WA No. 46 of 2016
WA No. 47 of 2016
WA No. 48 of 2016
Page 1 of 9
WA No. 49 of 2016
WA No. 50 of 2016
Date of order: 21.03.2022
Shri. Flamingstar Wahlang Vs. State of Meghalaya & Ors.
Shri. Humbert Patrick Syiem Vs. State of Meghalaya & Ors.
Shri. Philarson Marak Vs. State of Meghalaya & Ors.
Shri. Bawal KR. Marak Vs. State of Meghalaya & Ors.
Shri. Henithson K. Kharkongor Vs. State of Meghalaya & Ors.
Shri. Teilang Syiem Vs. State of Meghalaya & Ors.
Shri. Godfrey Balsam W. Momin Vs. State of Meghalaya & Ors.
Shri. Willington Marbaniang Vs. State of Meghalaya & Ors.
Shri. Damien Rongrin Vs. State of Meghalaya & Ors.
Shri. Khrawborlang Syiemiong Vs. State of Meghalaya & Ors.
Shri. Oldash M Sangma Vs. State of Meghalaya & Ors.
Shri. Geralson Lyngdoh Vs. State of Meghalaya & Ors.
State of Meghalaya Vs. Shri. Humbert Patrick Syiem
State of Meghalaya represented by the Vs. Shri. Philarson Marak
Commissioner of Transport,
Meghalaya.
State of Meghalaya represented by the Vs. Shri. Flamingstar Wahlang
Commissioner of Transport,
Meghalaya.
State of Meghalaya represented by The Vs. Shri. Bawal K.R. Marak
Commissioner of Transport,
Meghalaya.
State of Meghalaya represented by the Vs. Shri. Henitson K. Kharkongor
Commissioner of Transport,
Meghalaya.
State of Meghalaya represented by the Vs. Shri. Teilang Syiem
Commissioner of Transport,
Meghalaya.
State of Meghalaya represented by the Vs. Shri. Godfrey Balsam W.
Commissioner of Transport, Momin
Meghalaya.
State of Meghalaya represented by the Vs. Shri. Willington Marbaniang
Commissioner of Transport,
Meghalaya.
Shri. Khrawborlang Syiemiong Vs. State of Meghalaya & Ors.
Shri. Kharwborlang Syiemiong Vs. State of Meghalaya & Ors.
Shri. Kharwborlang Syiemiong Vs. State of Meghalaya & Ors.
Shri. Kharwborlang Syiemiong Vs. State of Meghalaya & Ors.
Shri. Kharwborlang Syiemiong Vs. State of Meghalaya & Ors.
Page 2 of 9
Shri. Kharwborlang Syiemiong Vs. State of Meghalaya & Ors.
Shri. Kharwborlang Syiemiong Vs. State of Meghalaya & Ors.
Shri. Geralson Lyngdoh Vs. State of Meghalaya & Ors.
Shri. Geralson Lyngdoh Vs. State of Meghalaya & Ors.
Shri. Geralson Lyngdoh Vs. State of Meghalaya & Ors.
Shri. Geralson Lyngdoh Vs. State of Meghalaya & Ors.
Shri. Geralson Lyngdoh Vs. State of Meghalaya & Ors.
Shri. Geralson Lyngdoh Vs. State of Meghalaya & Ors.
Shri. Geralson Lyngdoh Vs. State of Meghalaya & Ors.
Shri. Damien Rongrin Vs. State of Meghalaya & Ors.
Shri. Damien Rongrin Vs. State of Meghalaya & Ors.
Shri. Damien Rongrin Vs. State of Meghalaya & Ors.
Shri. Damien Rongrin Vs. State of Meghalaya & Ors.
Shri. Damien Rongrin Vs. State of Meghalaya & Ors.
Shri. Damien Rongrin Vs. State of Meghalaya & Ors.
Shri. Damien Rongrin Vs. State of Meghalaya & Ors.
Shri. Oldash M Sangma Vs. State of Meghalaya & Ors.
Shri. Oldash M Sangma Vs. State of Meghalaya & Ors.
Shri. Oldash M Sangma Vs. State of Meghalaya & Ors.
Shri. Oldash M Sangma Vs. State of Meghalaya & Ors.
Shri. Oldash M Sangma Vs. State of Meghalaya & Ors.
Shri. Oldash M Sangma Vs. State of Meghalaya & Ors.
Shri. Oldash M Sangma Vs. State of Meghalaya & Ors.
Coram:
Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S. Chakrawarty, Sr. Adv. with
Mr. T. Jyrwa, Adv.
Ms. E. Slong, Adv.
For the Respondent(s) : Mr. N.D. Chullai, AAG with
Mr. S. Sengupta, Addl. Sr.GA
Mr. P.N. Nongbri, Adv.
i) Whether approved for Yes
reporting in Law journals etc.:
ii) Whether approved for publication Yes/No
in press:
JUDGMENT: (per the Hon'ble, the Chief Justice) (Oral)
The propriety of a decision by the Transport Department of the State
to create several posts in the rank of Assistant Enforcement Inspector by a
notification of September 26, 2013 falls for consideration.
2. There is a bit of a history to the matter which must first be recounted.
There are eight writ petitions in all filed by individuals in the post of
Enforcement Checkers in the Meghalaya Subordinate Transport Service. It
is the admitted position that there are no rules till date governing such
subordinate service, though there is also a higher service which is governed
by the Meghalaya Transport Service Rules, 2017.
3. It appears from the records that Enforcement Checkers have been
engaged since or about 1975 but till 2013, there were no promotional
avenues for them, nor had any rules been introduced in lieu of lack of
promotion to provide for periodic increments or career progression. There
were previous writ petitions filed by some of the persons in the post of
Enforcement Checkers. It is also evident from the records that in 1975 when
the first Enforcement Checker was appointed, he was not even a matriculate.
However, later, all candidates who were recruited were at least matriculates
and a few of them were also graduates. It does not appear that higher
educational qualifications or any technical expertise may be required to
discharge the duties of an Enforcement Checker or even that of Enforcement
Inspector, which position, till or about 2013, was the entry-level post in the
higher services of the Transport Department.
4. Thus, there were matriculates, pre-university passed candidates and
even graduates recruited as Enforcement Checkers who were discharging
their duties as such till or about 2013 when the impugned notification was
issued. By virtue of such notification, five posts of Assistant Enforcement
Inspectors were sanctioned, possibly as a bridge between the Subordinate
Transport Service and the Higher Transport Service. As to the persons who
would be qualified to be considered for the posts, the relevant notification
provided as follows:
"The post of Assistant Enforcement Inspectors 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
Inspectors to allow promotion from amongst the Assistant
Enforcement Inspectors, to the post of Enforcement Inspectors and
67% by direct recruitment ..."
5. The writ petitions came to be filed by the Enforcement Checkers
who, in terms of the relevant notification, did not qualify to be considered
for promotion. It must be kept in mind that the service jurisprudence that has
developed in this country has recognised that there is a right to be considered
for promotion, though there may not be any absolute right to be promoted.
As a consequence of the notification, persons who entered into a particular
cadre on the basis of a common set of qualifications were sought to be
distinguished on the basis of their educational qualifications, when higher
qualifications were irrelevant for the purpose of their being born into the
cadre. Indeed, the notification provided for the immediate promotion; and
not promotion in futuro which may have passed muster, if adequate time had
been given to the non-graduates to obtain graduate degrees before the
consideration for promotion would take place.
6. The Enforcement Checkers who did not qualify to be considered for
promotion in terms of the notification of September 26, 2013 approached
this Court and the writ petitions were allowed, primarily on the ground that
the State Public Service Commission was not involved in the process; that
no distinction on the basis of educational qualifications among persons in
the entry-level post could be made; and, that the notification was otherwise
arbitrary. However, it appears that the writ court overlooked the fact that the
Enforcement Checkers who were qualified to be considered for promotion
in terms of the impugned notification of September 26, 2013 had not been
impleaded in the writ petitions carried to this Court. Upon such Enforcement
Checkers who possessed graduate degrees preferring appeals against the
order dated November 6, 2015 allowing the writ petitions, a Division Bench
of this Court set aside the order on the ground that the Enforcement Checkers
who possessed graduate degrees had not been made parties or heard despite
a right having vested in them. The Division Bench judgment of October 5,
2016 remanded the matter to the writ court for its fresh consideration.
7. Such order of October 5, 2016 was challenged by way of a petition
for special leave to appeal before the Supreme Court and, on September 4,
2018, considering that this High Court had only two Hon'ble Judges then,
the Supreme Court directed that the matter be considered on merits by the
Division Bench of this Court.
8. Both the writ petitions and all the appeals, which have revived upon
the order dated September 4, 2018 passed by the Supreme Court, are taken
up for consideration. In support of the impugned notification of September
26, 2013, the Enforcement Checkers who possess graduate degrees refer to
a recent judgment reported at 2021 SCC Online SC 773 (Chandan Banerjee
vs Krishna Prosad Ghosh) to suggest that a classification based on
educational qualifications is permissible and the present case will be
governed by the dictum in such reported case.
9. In Chandan Banerjee, which pertained to the Engineering
Department in Kolkata Municipal Corporation (KMC), there were two
distinct service cadres of Subordinate Engineering Service and Engineering
Service. There were service rules in place pertaining to recruitment and
promotion from 1994 which were modified in 1997 and again in 2002 and
2008. By the circular impugned in the proceedings dated July 3, 2012, a
proposal was circulated by the Personnel Department of KMC for creation
of supernumerary posts in the rank of Assistant Engineers and Subordinate
Assistant Engineers. However, a distinction was made, based on the
educational qualifications such that SAEs holding a diploma and having
completed 25 years of service and SAEs holding a degree and having
completed 13 years of service (out of which five years as a degree-holder)
would be eligible to be considered at the next level of AEs. The limited
question that arose in the matter is captured at paragraph 29 of the report:
"29. At the outset we must point out that the appellants have not
contested the fact that educational qualification is not a valid ground
for classification in matters of public employment, or that
promotional avenues are not available to diploma holder SAEs to the
post of AE. The appellants seek to challenge the impugned circular
on the limited ground that the eligibility conditions for promotion to
the supernumerary posts of AE are different for diploma-holder
SAEs, who require twenty-five years of experience to be eligible, as
opposed to degree-holder SAEs, who require thirteen years of
experience."
10. It was in such context that the Supreme Court, upon initially
indicating that a classification according to the educational qualifications
was permissible if it was done with a view to achieving administrative
efficiencies, rejected the contention of the diploma-holder SAEs upon laying
down the applicable principles at paragraph 27 of the report.
11. Though the graduate Enforcement Checkers in the present case seek
to rely on three of the principles culled out at paragraph 27 of the report in
Chandan Banerjee, such principles must be seen in their entirety and in the
context of the challenge and the circumstances in which the challenge arose.
Indeed, the ratio decidendi of the judgment in Chandan Banerjee may only
be that persons drawn from different sources and integrated into a common
class can be differentiated on the ground of educational qualifications for
the purpose of promotion, where it bears a nexus with the efficiency required
in the promotional post.
12. For several reasons, the dictum in Chandan Banerjee would not be
applicable in the present case. For a first, at the entry-level post of
Enforcement Checkers, there is no integration of employees coming from
different sources. All Enforcement Checkers possessed the minimum
educational qualifications that were prescribed and the fact that several of
them may have possessed higher qualifications may not be of any relevance
in the context.
13. It appears to be arbitrary and discriminatory that merely because
some persons within a defined class accidentally possessed higher
educational qualifications, which may not have been material for the post,
promotional avenues are opened up for them to the exclusion of the other
members of the same class. This would go against the grain of the right to
be considered for promotion. Such right must be equally available to all
members of a class or all occupying a particular post and promotional
avenues cannot be opened up by making a distinction in their educational
qualifications when such distinction was of no relevance at the time of the
persons being born into the cadre.
14. Indeed, the judgment in Chandan Banerjee referred to several
previous decisions, including a Constitution Bench judgment reported at
(1973) 3 SCC 76 (Mohammed Shujat Ali vs Union of India) where it was
observed that it could not be laid down as an invariable rule that whenever
any classification is made on the basis of variant educational qualifications,
such classification must be held to be valid, irrespective of the nature and
purpose of the classification or the quality and extent of the differences in
the educational qualifications.
15. It may have been possible in the present case to provide promotional
avenues based on educational qualifications subject to affording those
within the class who did not possess such educational qualifications
sufficient time to acquire the same to be eligible for consideration for
promotion. The arbitrariness is in the sudden issuance of the notification
which, for no fault of the non-graduate Enforcement Checkers, precluded
them from being considered for promotion. The consideration would also
have been different if the notification was in place at the time that all the
persons as Enforcement Checkers were recruited. In such a scenario, they
would have known that after a specified number of years, if they obtained
higher educational qualification, only then they would stand to be
considered for promotion to the higher posts. Equals were inequally treated
on the basis of irrelevant considerations.
16. Accordingly, the impugned notification of September 26, 2013,
insofar as it provides for discriminatory promotion from among the
Enforcement Checkers based on educational qualifications, is set aside and
all action taken pursuant thereto are set at naught. However, nothing in this
order will prevent the respondent authorities from providing for any annual
or periodic career progression scheme if there are no promotional avenues
open for the Enforcement Checkers. It will also be open to the respondent
authorities to indicate promotional opportunities in future, subject to
affording adequate time to those who do not have the requisite educational
qualifications to obtain the same in the meantime and be eligible for being
considered for promotion.
17. WP(C) No. 292 of 2014, WP(C) No. 290 of 2014, WP(C) No. 291
of 2014, WP(C) No. 293 of 2014, WP(C) No. 294 of 2014, WP(C) No. 295
of 2014, WP(C) No. 296 of 2014, WP(C) No. 297 of 2014 and W.A. No. 35
of 2015 with MC (WA) No. 67 of 2015, W.A. No. 36 of 2015 with MC
(WA) No. 68 of 2015, W.A. No. 37 of 2015 with MC (WA) No. 69 of 2015,
W.A. No. 38 of 2015 with MC (WA) No. 70 of 2015, W.A. No. 39 of 2015,
WA No. 16 of 2016, W.A. No. 17 of 2016, W.A. No. 18 of 2016, W.A. No.
19 of 2016, W.A. No. 20 of 2016, W.A. No. 21 of 2016, W.A. No. 22 of
2016, W.A. No. 23 of 2016, W.A. No. 24 of 2016, W.A. No. 25 of 2016,
W.A. No. 26 of 2016, W.A. No. 27 of 2016, W.A. No. 28 of 2016, W.A. No.
29 of 2016, W.A. No. 30 of 2016, W.A. No. 31 of 2016, W.A. No. 32 of
2016, W.A. No. 33 of 2016, W.A. No. 34 of 2016, W.A. No. 35 of 2016,
W.A. No. 36 of 2016, W.A. No. 37 of 2016, W.A. No. 38 of 2016, W.A. No.
39 of 2016, W.A. No. 40 of 2016, W.A. No. 41 of 2016, W.A. No. 42 of
2016, W.A. No. 43 of 2016, W.A. No. 44 of 2016, W.A. No. 45 of 2016,
W.A. No. 46 of 2016, W.A. No. 47 of 2016, W.A. No. 48 of 2016, W.A. No.
49 of 2016 and W.A. No. 50 of 2016 are disposed of on the above basis and
without any order as to costs.
18. Those employees who were afforded any benefit in terms of the now
invalid notification will revert to their original positions. However, it will be
open to the State to decide on how and in what manner any recovery of extra
payment may be made.
(W. Diengdoh) (Sanjib Banerjee)
Judge Chief Justice
Meghalaya
21.03.2022
"Sylvana PS"
