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Judgment
The instant application before this Court has been filed by the petitioner who is serving as an Assistant Chemist, in the Mining and Geology Department, Government of Meghalaya for consideration for promotion to the vacant posts of Chemist, which exists in the said Department. The case of the petitioner as set forth, is that in the year 2015, 4(four) posts of Chemist in the Department fell vacant and as per the convention and norm, the vacant posts were required to be filled up by promotion from the eligible Assistant Chemists on the basis of seniority. However, from the said 4(four) vacant posts, 2(two) posts were advertised for direct recruitment vide advertisement dated. 26.04.2016, issued by the Meghalaya Public Service Commission and for the other 2(two) posts, promotion was made from the Assistant Chemists in order of seniority, which according to the petitioner has deprived him of promotion to the post as 2(two) other Assistant Chemists were senior to him. Being aggrieved thereby, he is before this Court by way of the instant petition.
Mr. S. Chakrawarty, learned Senior counsel assisted by Ms. A. Barua, learned counsel for the petitioner submits that as per the convention and norms followed, in the absence of Rules governing the services in the Department, the post of Chemist was usually filled up by promotion and direct recruitment was only resorted to when there was no Assistant Chemist eligible for promotion. Learned senior counsel submits that therefore the advertisement of the 2 (two) posts of Chemists based on the Draft Service Rules when an eligible candidate was available is unwarranted, and has resulted in the denial of the petitioner to his legitimate expectation for promotion to the post of Chemist. As such, he prays that a mandamus be issued to direct the State respondents to consider the case of the petitioner who is eligible in all respects for promotion to the said vacant post.
Mr. H. Abraham, learned GA for the respondent No. 1 to 4 submits that as per the Draft Service Rules, 50% of the vacant posts of Chemist was to be filled up by promotion and the other 50% by direct recruitment and as such when 4(four) posts of Chemist fell vacant, 2 (two) were advertised and 2(two) posts were filled up by promotion. He further submits that it is not a fact that on earlier instances there has been no direct recruitment to the post of Chemist. In this regard, he has drawn the attention of this Court to the Annexure-1 to the affidavit-in-opposition which shows that in the year 1982, and a few other instances thereafter direct recruitment, was resorted to the post of Chemist by the Department. He further submits that the Draft Service Rules are yet to be finalized and whatever proceedings conducted earlier was based on executive directions and exigency.
Mr. K. Paul, learned Senior counsel assisted by Mr. S. Thapa, learned counsel appearing on behalf of the respondent No. 5 submits that the role of the Meghalaya Public Service Commission was only to advertise the posts as requisitioned, which has been done so accordingly, and that with regard to the merit of the case, the Respondent No.5 has no submissions to make.
I have heard the learned counsel for the parties. It is noted that during the pendency of the case, certain events have transpired which has changed the complexion of the matter as far as the competing rights of the parties are concerned, which are borne out by the instructions and materials that Mr. H. Abraham, learned GA has produced before this Court. Most relevant to the issue, is the communication dated 10.03.2021 from the Director of Mineral Resources (Respondent No. 4), wherein it has been stated that at present there are 4(four) posts of Chemists lying vacant since March, 2021. It is also further mentioned in the said communication that the Directorate has already proposed to fill-up 2(two) posts by promotion and the same has been sent to the Government for necessary action.
On the last date, i.e. on the 31.03.2021, this Court on being apprised about this position, had directed the learned State counsel for the respondent No. 1 to 4 to obtain precise instructions as to whether the petitioner is being considered by the respondents for promotion to the vacant post of Chemist as has been indicated in the letter. Today, Mr. H. Abraham, learned GA to this query, has referred to that part of the instructions received from the respondents 1-4, wherein eligibility criteria for promotion and names of persons who are to be considered have been given. This note is taken cognizance by this Court at this stage, and the eligibility criteria and names of persons as submitted, is reproduced herein below: -
"ELIGIBILITY CRITERIA - Appointment to the post of Chemist shall be made 50% by promotion from amongst the Assistant Chemist who must possess B.Sc. with chemistry and have rendered not less than 5(five) years of continuous service in the post of Assistant Chemist on the first day of the years in which the selection is made.
NAME OF THE PERSONS.
Sl.
Name &
Dt. of
Dt. of
Educational
Remarks
No.
Designation of
joining in
regularization
Qualification
incumbent
the present
in the present
post.
post
1
2
3
4
5
1.
Shri M. Nongrum,
30.08.2002
18.07.2006
P.U.C.
By.
Asstt. Chemist
D.P.C.
2.
Shri Robert D.
17.09.2002
Adhoc/
B.Sc.
Yet to be
Sangma, Asstt.
Officiating
(Chemistry)
regulariz
Chemist
ed
3.
Shri A. Khonglam,
18.07.2006
18.07.2006
B.Sc.
By D.P.C.
Asstt. Chemist
(Chemistry)
A bare perusal of the eligibility criteria as set out, is that promotion from amongst the Assistant Chemists will include persons who possess B. Sc. (Chemistry) and who have rendered not less than 5(five) years of continuous service in the post of Assistant Chemist. On examination of the table showing the names that are to be considered, it appears that from amongst the 3(three) persons who are serving as Assistant Chemist, presently the petitioner who appears at Sl. No. 3 is the only one qualified for consideration of promotion, as he has the requisite prescribed qualification as also years of qualifying service.
In consideration thereof, and not to further prolong this matter and keeping in view of the instructions and materials received and produced by the learned GA, without further examining other issues, this writ petition is disposed of as follows.
That that with regard to promotion to the post of Chemist, as the petitioner is qualified in all respects for consideration thereof, the same is to be taken into account by the respondent No. 1 to 4, and his name shall be accordingly considered as and when the Departmental Promotion Committee sits.
It is also observed that though the respondents are relying upon the Draft Service Rules, the same is yet to be finalized. It is hoped therefore that the same are finalized and notified at the earliest, so as to benefit the persons in service in the said Department and put an end to avoidable litigation such as has occasioned in the present case.
With the above noted directions, this matter is accordingly disposed of. In the circumstances the interim order dated 14.06.2018 also stands vacated.
A copy of the instructions as received are to be safely placed in the records.
No costs.