High Court of Meghalaya
Smti. Lumlang B. Nongsiej vs State Of Meghalaya on 21 May, 2024
Author: H. S. Thangkhiew
Bench: H. S. Thangkhiew
Serial No. 27
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 78 of 2023 Date of Decision: 21.05.2024
Smti. Lumlang B. Nongsiej
D/o (L) M.S. Basaiawmoit
R/o Mawlai Mot Syiar, Block - B2
Shillong- 8, East Khasi Hills District,
Meghalaya :::Petitioner
-Vs-
1.State of Meghalaya
Represented by the Chief Secretary,
Government of Meghalaya, Shillong.
2.The Joint Secretary (Admn) to the
Govt. of Meghalaya, Public Works (R&B)
Dept., East Khasi Hills District, Meghalaya.
3.The Chief Engineer P.W.D. Roads,
Shillong, Meghalaya. :::Respondents
Coram:
Hon'ble Mr. Justice H. S. Thangkhiew, Judge
1
Appearance:
For the Petitioner/Appellant(s) : Mr. L.J.L. Nongpiur, Adv.
For the Respondent(s) : Mrs. T. Yangi. B, AAG with
Ms. R. Colney, GA.
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 brief facts of the case as portrayed are that the writ petitioner
was appointed as Section Assistant (SA) on 31st August, 2001 under the NH
Shillong Bye Pass Division, Shillong purportedly against a sanctioned post.
The service of the writ petitioner was allowed to continue on various
extensions till February, 2022, whereafter her salary was withheld for
9(nine) months from March - November, 2022. Being aggrieved with non-
payment and non-extension of her services, writ petitioner is before this
Court, seeking appropriate orders for payment of salary and for
regularization of her services.
2. Mr. L.J.L. Nongpiur, learned counsel for the petitioner has submitted
that the writ petitioner was appointed against a sanctioned post, and has
been working for the past 21 years and as such, the decision of the
respondents to treat her as an adhoc employee instead of considering her
regularization against the sanctioned post was totally unjustified. He further
submits that the writ petitioner has rendered service till December 2022 and
therefore should be paid for the entire period. Reliance has been placed by
the counsel for the petitioner on the rejoinder affidavit, wherein at Annexure
- IV thereof, a letter dated 15.12.2022, has been enclosed, wherein a request
has been made to the Chief Engineer, PWD (Roads), to take up the matter
regarding their service and for appointment on contractual basis as they
have been rendering satisfactory service to the department.
3. The learned counsel for the petitioner then submits that the petitioner
had preferred representations to the respondents which were not given any
consideration especially on the aspect of the petitioner serving against a
sanctioned post. Thereafter he submits clarification by way of a
representation dated 07.03.2023, was sought by the petitioner of a letter
dated 23.06.2022, issued by the Personnel & Admn. Reforms (B)
Department, whereby adhoc appointees were approved by the cabinet for
regularization subject to certain conditions of which one of them was to be
against sanctioned posts only, and also appointments made before
31.12.2007. Learned counsel submits that the name of the writ petitioner
had figured in the list of adhoc employees to be regularized. As such, he
contends the writ petitioner being appointed before 2007, should have been
regularized to a sanctioned post. He therefore submits, the respondents are
liable to regularize her services and also pay all her pending salary for
services rendered till December 2022.
4. Mrs. T. Yangi. B, learned AAG assisted by Ms. R. Colney, learned
GA for the respondents has submitted that the appointments given in the
year 2001 of Section Assistants, were not against existing vacancies, but
against regularised work charged post, which has since lapsed, and were not
retained. She submits that the writ petitioner's appointment in the year
2001, was to a non-sanctioned post, but however, in consideration of the
fact that, the writ petitioner has been working for a long time, she had been
offered along with other similarly situated adhoc employees to opt for
contractual employment in December 2022, which was refused by the writ
petitioner, but however, accepted by the other 9(nine) similarly situated
employees. It is further submitted that, notwithstanding the refusal of the
writ petitioners, to revert to contractual appointment, the writ petitioner at
this stage is again given the option to accept the offer of regularization,
though without any back wages as claimed. It is further submitted that, as
the fact that the writ petitioner was appointed to a non-sanctioned post is not
disputed, the submission of her name for regularization under the decision
of the cabinet is an aberration, and will not vest any right on the petitioner.
5. Mr. L.J.L. Nongpiur, learned counsel at this stage has submitted that
if the writ petitioners are to accept the proposal as given by the respondents
for regularization, the same should be given from the date of initial
appointment to the said post. Certain decisions have also been placed by the
learned counsel for the petitioner, in support of his case.
(i) Dr. Mukesh Sharma vs. State of Rajasthan through
Principal Secretary, Department of Medical Education,
Government of Rajasthan, Secretariat, Jaipur in the case of
S.B. Civil Writ Petition No. 10718/2015
(ii) Raman Kumar & Ors. vs. Union of India & Ors. in the case
of Civil Appeal No(s). /2023 @ SLP(C) No. 7898/2020.
6. I have heard learned counsel for the parties. It is noted from the
materials that have been placed and not disputed, that the initial
appointment of the writ petitioner was on a temporary basis, as a Section
Assistant for a period of 3(three) months on an adhoc basis, which was
subsequently extended. However, it is also interesting to note that, in a letter
dated 30.07.2005, under the hand of the Joint Secretary to the Government
of Meghalaya, PWD Department (respondent No. 3), request has been made
to allow the incumbent(s) to continue in their service and further, that the
District Selection Committee need not be informed. Further, by another
letter dated 03.08.2005, the said respondent No. 3, again communicated that
the incumbent(s) be allowed to continue in service and to be retained, and
that payment of monthly salaries was to be made and continued as has done
before. By another letter dated 24.08.2005, the name of the petitioner was
forwarded to the Personnel & Admn. Reforms (B) Department by the
respondent No. 3 for consideration of regularisation.
7. The above noted three letters to the mind of the Court, had facilitated
the continuation of the petitioner in service on adhoc basis for a long period
without there being any reasonable basis. Thereafter, though the status of
the writ petitioner as adhoc employee remained, benefit of revised pay and
arrears thereof, was allowed, and also placement of the pay on a higher
scale, as is seen from Office Order No. 33 of 2010 dated 16.06.2010, and
Office Order No. 40 of 2014 dated 08.09.2014. As discussed, the
appointment of the petitioner, being temporary was not against any
sanctioned post, as projected, but was against a regularized work charged
post, which has since lapsed, and as such, therefore, there is no question of
being regularized at this stage, in view of the terms of appointment and the
non-existence of a post to which she would be accommodated against.
8. However, with the advent of the cabinet decision, though the
petitioner was not temporarily appointed against a sanctioned post, she has
been given a second chance to have her service regularized, on the
concession made by the respondents. The services of the writ petitioner
which were retained throughout purely on extension orders, though the
appointment cannot be said to be perse illegal, the same was irregular. This
Court has also noted that with regard to the temporary retention of other
Section Assistants, who were similarly appointed in the year 2001, a few of
them numbering 9 in number accepted the contractual appointment, which
was refused by the writ petitioner, the same having occurred before the
cabinet decision, will have no bearing or relevance for the purposes of this
case.
9. Though the offer of regularization, in view of the decision of the
cabinet, may seem inadequate to the petitioner, in the considered view of
this Court, the circumstances by which the writ petitioner entered into
service, on being appointed against a non-existent post and allowed to
continue therein for a long period, the proposed regularization will suffice
to address the grievance to a large extent. On the prayer of the writ
petitioner for consideration of back wages, the same is rejected. The
respondents are accordingly directed to take up the matter for regularization
of the writ petitioner, and complete the process within a period of 2(two)
months.
10. The authorities placed by the counsel for the petitioner being of no
assistance, are not discussed here.
11. Matter accordingly stands closed and disposed of.
Judge
Meghalaya
21.05.2024
"D.Thabah-PS"
