High Court of Meghalaya

Darren Damanbha Kharkongor vs The Additional Chief Engineer on 28 August, 2024

Author: H. S. Thangkhiew

Bench: H. S. Thangkhiew

                                                                  2024:MLHC:782




Serial No. 23
Regular List
                           HIGH COURT OF MEGHALAYA
                                 AT SHILLONG

    WP(C) No. 422 of 2023                           Date of Decision: 28.08.2024

    1.Darren Damanbha Kharkongor
    S/o Davis Pyngrope, resident of
    Pokseh West - 793003, Shillong, Meghalaya

    2.Bansharailang Kharkongor
    S/o Garland Pyngrope, resident of
    Pokseh West - 793003, Shillong, Meghalaya                   :::Petitioners

           -Vs-

    1.The Additional Chief Engineer,
    Meghalaya Power Distribution Corporation
    Limited, Shillong, East Khasi Hills District,
    Meghalaya

    2.The Director Corporate Affairs,
    Meghalaya Energy Corporation
    Limited, Shillong, East Khasi Hills District,
    Meghalaya

    3.The Director Corporate Affairs,
    Meghalaya Power Transmission Corporation
    Limited, Shillong, East Khasi Hills District,
    Meghalaya

    4.The Director Corporate Affairs,
    Meghalaya Power Distribution Corporation
    Limited, Shillong, East Khasi Hills District,
    Meghalaya                                                 :::Respondents




                                          1
                                                                   2024:MLHC:782




Coram:
       Hon'ble Mr. Justice H. S. Thangkhiew, Chief Justice (Acting)


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

For the Respondent(s)           :       Mr. S. Sahay, Adv.
                                        Mr. A.H. Kharwanlang, Adv.

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

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

                   JUDGMENT AND ORDER (ORAL)

1. The petitioners in the instant writ petition are before this Court with

a prayer for regularization of their services and that they be paid a regular

scale of pay as applicable to the equivalent posts under the respondents

from the date of their joining. The prayer of the writ petitioners is on the

premise that the same should be accorded to them, in view of the donation

of a plot of land by the elders of their clan to the respondents for

construction of a sub-station. It is the case of the petitioner that consequent

to the donation and on an understanding, instead of providing

regular/permanent employment, the respondents however employed the

petitioners, on a contractual basis. Hence, this writ petition.

2024:MLHC:782

2. Mr. S. Jindal, learned counsel for the petitioners has submitted that

since the land was given free of cost to the respondent and as a token of

such acceptance, the respondent had agreed in principle to provide

employment to at least two members of the clan, it was the natural

expectation that the employment so provided would be regular against

sanctioned posts. The provision for regular employment in such

circumstances, it is asserted stems from an Office Memorandum dated

30.08.2017, whereby in the amendment to Para - 7, a special mode of

appointment has been provided, when such land donations had been made.

In this context, he submits the respondents in the implementation and

application of the said Memorandum had afforded regular appointment to

20 persons, vide Office Order dated 11.06.2020, and as such, there was no

reason that the petitioners be not given the same consideration.

3. It has been further submitted that the above Memorandum having

prescribed the said conditions, the action of the respondents in not

considering the regular appointment of the petitioners is unjustified and

discriminatory. It is also submitted that the stand taken by the respondents

that the Patta, whereby the land was handed over was on 22.03.2017, prior

to the issuance of the Office Memorandum on 30.08.2017, thus making the

same inapplicable to the case of the petitioners is misplaced and

inconsistent. Learned counsel further submits that in a judgment of this

2024:MLHC:782

Court dated 15.07.2024, passed in WP(C) No. 133 of 2021, the respondents

have reiterated the prevalence of the stated policy, with regard to granting

regular employment to persons on the basis of agreements made with land

owners. He therefore submits that the respondents are duty bound to grant

the petitioners regular employment, as per the Memorandum.

4. Mr. S. Sahay, learned counsel for the respondents in reply has

submitted that there was no promise of employment and at that relevant

point of time, when the land was taken over, there was no such policy in

place. The Kharkongor clan he submits, had donated the land, as the setting

up of a sub-station, would be beneficial to the people inhabiting the land of

Kur Kharkongor Nongthymmai. It is further submitted that the petitioner

has incorrectly placed reliance upon the Office Order dated 11.06.2020, to

claim parity with the 20 persons, who have been given appointment,

inasmuch as, the said Office Order is in respect of a different land and does

not pertain to the facts of the instant case. He lastly submits that, the

petitioners do not possess any vested rights to claim for such regular

employment, as there is no mention of any offer for employment to any

member of the clan, nor any agreement to this effect.

5. Upon hearing the learned counsel for the parties, to the mind of this

Court, the only question to be determined, is whether on the given set of

circumstances, the petitioners would be entitled to the prayers as made in

2024:MLHC:782

the writ petition. First, it is noted that the fact that the Kharkongor clan had

donated a plot of land measuring about 45,500 sq. ft. approximately for

construction of an electrical sub-station to the respondents is undisputed.

From the materials on record, it can be seen that the respondent No. 1, vide

letter dated 03.02.2015, had written to the Kharkongor clan elders, with

regard to the requirement of 1 acre of land, amongst other requirements for

construction for a sub-station at Lad Smit, which was acceded to by the

clan and conveyed vide letter dated 14.05.2015, whereafter the land was

handed over to the respondents vide Patta dated 22.03.2017. The nature of

the grant of the land, it is to be noted was a straight forward transaction and

was not reduced to any form of formal agreement, except for the fact that

the land document is in the form of a standard issue Patta. As such, apart

from the handling over, the said transaction also did not provide for

payment of lease rent or any payment of consideration. However, as per the

stand taken by the petitioners, an understanding had been arrived at with

the respondents, which was why the petitioners were given employment,

and that the same had been accepted in the expectation that the

appointment would be regularized in due course. At this juncture, it is

necessary to refer to the Office Memorandum dated 30.08.2017, which for

the sake of convenience is reproduced herein under.

2024:MLHC:782

GOVERNMENT OF MEGHALAYA PERSONNEL & ADMV. REFORMS (B) DEPARTMENT

ER(AR)49/2012/67 Dated Shillong, the 30th August, 2017

OFFICE MEMORANDUM

Subject: Composition, functions etc. of the District Selection Committee for the Districts in the State of Meghalaya and the procedure for direct recruitment to various categories of posts which come under the purview of the Committee.

The undersigned is directed to invite attention to Govt. O.M. No. PER(AR)49/2012/5, dated 17th November, 2014 relating to the composition, functions etc. of the District Selection Committee for the Districts in the State of Meghalaya and the procedure for direct recruitment to various categories of posts which come under the purview of the Committee and to say that for the existing Para 7, the following new provision shall be substituted as:

Amendment of Para 7

In case where private land owner(s) have donated land free of cost for Government purpose, the land proposed to be donated should be legally handed over through a registered deed to enable the Government to provide appointment to any person(s) as recommended by the land owner(s) in a Grade IV/Grade III posts. Where land is donated by the Nokma/Syiem/Dolloi/Raid/Clan, etc then the Nokma/Syiem/Dolloi/Raid/Clan/Sardar, as the case may be, shall identify the appropriate person or persons, in consultation with the

2024:MLHC:782

affected families, if any, to whom appointment can be given. The Deputy Commissioner of the concerned District will identify the post in consultation with the District Head of the concerned Department to which the land is being donated. Appointment under this provision will be outside the purview of the DSC.

Provided that on the retirement/demise the vacancy will be filled up through normal recruitment.

This shall come into force with immediate effect.

Sd/-

(L. Diengdoh) Commissioner & Secretary to the Govt. of Meghalaya Personnel & A.R. (B) Department

6. From the above noted Memorandum it can be seen that, provision

has been made for affording employment for appointment to any persons as

recommended by the land owners, who had donated land free of cost for

Government purposes. In the instant case, though in the affidavit filed by

the respondents a stand had been taken that the Office Memorandum will

not be applicable, inasmuch as, it is only for Government purpose, and that

the Memorandum came into existence after the handing over of the land

had been effected, this Court notes that as pointed out by the learned

counsel for the petitioners, the respondents has in another matter cited the

Memorandum, as the reason for appointing 20 employees in the

2024:MLHC:782

Corporation. This stand taken by the respondents appears at Para - 27 of

the judgment and order dated 15.07.2024, passed in WP(C) No. 133 of

2021 (MeECL Progressive Workers' Union etc. vs. State of Meghalaya &

Ors.), and is quoted herein below.

"27. As to the contention of the petitioner/Union as regard the alleged discrimination as far as regularisation is concerned, particularly the process for regularisation of 20 employees, the explanation offered by the respondent/MeECL that the said 20 employees were regularised on the bases(sic) of an agreement made between the MeECL and the land owners, etc. for appointment of their preferred candidates, the same cannot be faulted since the policy decision of the Government in this regard would cover such decision. The said policy is found in the office memorandum No.PER/(AR).49/2012/67 dated 30.08.2017 (Annexure-R/2 of the affidavit-in-opposition) wherein the following is noted:

"In case where private land owner(s) have donated land free of cost for Government purpose, the land proposed to be donated should be legally handed over through a registered deed to enable the Government to provide appointment to any person(s) as recommended by the land owner(s) in a Grade IV/Grade III posts. Where land is donated by the Nokma/Syiem/Dolloi/Raid/Clan, etc then the Nokma/Syiem/Dolloi/Raid/Clan/Sardar, as the case may be, shall identify the appropriate person or persons, in consultation with the affected families, if any, to whom

2024:MLHC:782

appointment can be given. The Deputy Commissioner of the concerned District will identify the post in consultation with the District Head of the concerned Department to which the land is being donated. Appointment under this provision will be outside the purview of the DSC."

7. On the other aspect that, the Memorandum came into existence after

the land had been taken over, though the same is correct and further

coupled with the fact that, there was no precise written agreement, in the

considered view of this Court, the appointments made on contractual basis

were done only in 02.07.2020, and in this regard, it can be safely assumed

was made on account of the donation of land. Therefore, the appointments

being made after the issuance of the Office Memorandum, the

appointments will naturally be understood to be governed by the terms

contained therein. Had the appointments been made prior to the issuance of

the Office Memorandum, perhaps the rights of the petitioners would stand

diluted, but in the instant case, the same not being so, the stand adopted by

the respondents cannot be accepted.