Hillford Thangkhiew & Ors. vs State Of Meghalaya & Ors.

These two writ petitions being similarly situated are hereby proposed to be disposed of by this common judgment and order.

The petitioners have approached this Court seeking regularization/absorption of their services to the vacant posts which they are presently occupying under Regulation 3(f) of the MPSC (Limitation of Functions) 1972 since 15.07.2011. The grievance as portrayed, is that their services after the initial appointment, which was by a selection process conducted by the department, though renewed from time to time, their case for accommodation or regularization has not been considered by the respondents. The petitioners are also aggrieved at the advertisement dated 26.04.2016 published by the MPSC for filling up of 13 vacancies of the posts of Industrial Promotion Officer which also includes the posts presently occupied by them. The petitioners are therefore before this Court with a prayer for consideration for regularization of their posts through the Meghalaya Public Service Commission.

Heard counsel for the parties.

Mr. N. Syngkon, learned counsel for the petitioners submits that pursuant to an advertisement dated 27.07.2010, for filling up vacancies to the posts of Industrial Promotion Officer/Assistant Industrial Officer/Superintendent of Industries under the Regulation 3(f) of the MPSC (Limitation of Functions) 1972 under the Commerce and Industries Department, the petitioners had applied for the same and after qualifying in the written test and personal interview were appointed as Industrial Promotion Officers along with other selected candidates vide Notification dated 15.07.2011, and since then have been serving continuously in the said posts. The counsel submits that on 18.04.2013, the MPSC had advertised 31 posts of Industrial Promotion Officers in the Commerce and Industries Department and though the petitioners had applied and participated, they did not come out successful and were not shortlisted for personal interview or for appointment. Learned counsel submits that thereafter the petitioners on 31.03.2014 along with others had submitted a representation before the Chief Minister for regularization but to no avail. He submits that thereafter also several representations/appeals were submitted before the respondents but however they did not yield any result nor was their case considered.

Learned counsel submits that the MPSC vide another advertisement dated 26.04.2016 has again called for filling up of 13 vacancies of the same posts including the posts presently occupied by the petitioners. The counsel submits that though they have applied for the said posts, the reason why they are before this Court is for appropriate directions to direct the respondents not to fill up the posts presently occupied by the petitioners but to consider their regularization against the same. The learned counsel would submit, that this prayer is being made in view of the fact that in another similar situation, the respondent State had approved the regularization of Junior Divisional Accountants who were initially also appointed under Regulation 3(f). To substantiate this contention, learned counsel has referred to Annexure 16 of the writ petition which is a letter dated 10.01.2013 which communicated the approval of the Government for regularization of 46 numbers of Junior Divisional Accountants. Learned counsel places reliance on the judgment in the case of Workmen vs. Bhurkunda Colliery of Central Coal Fields Ltd. reported in (2006) 3 SCC 297 and in the case of Nihar Singh vs. State of Punjab reported in (2013) 14 SCC 625. However, he has laid emphasis on the judgment dated 09.07.2019 in the case of Shri Playstarwell Suting & Anr. vs. State of Meghalaya & Ors. passed in WP(C) No. 53 of 2019, wherein he submits that in the similar situation, special recruitment for the posts of Weaving Inspector was conducted to regularize the services of the concerned petitioners which also met the approval of this Court. He therefore lastly submits that the petitioners having served for nearly 9 years, and their appointments though temporary being made through a selection process, deserve to be considered for regularization or for a special recruitment to be conducted through the MPSC for the same.

Mr. H. Abraham, learned counsel on behalf of the State respondents in reply to the submissions of the petitioners submits that the appointments being purely temporary, and made under Regulation 3(f) of the MPSC (Limitation of Functions) 1972, the petitioners have no vested right to claim for regularization. He submits that the appointees should qualify themselves through the MPSC to occupy regular posts, and they having failed to do so in the first round, when the posts were advertised on 18.04.2013, unlike other similarly situated candidates who were also appointed under Regulation 3(f), the prayer made is unsustainable. He submits that the petitioners having applied for the said posts in the current advertisement dated 26.04.2016, should qualify themselves in this selection for which the department has already issued a No objection on 30.05.2016 for their participation. With regard to the contention of the counsel of the petitioners that special recruitment has been held to regularize the services of temporary employees in various departments, the learned counsel has read out the instructions as contained in the communication from the Personnel & Administrative Reforms (B) Department dated 27.08.2007 which he points out concerns only adhoc appointees in various departments which had been approved by the Cabinet for regularization through the MPSC or District Selection Committees with certain conditions. Learned counsel submits that the case of the petitioners not falling within this exercise that had been conducted earlier cannot pray for any special treatment in this regard. He lastly submits that though the petitioners have admittedly been serving continuously, the question of automatic consideration for regularization does not arise.

After hearing learned counsel for the parties and giving my thoughtful consideration to the facts at hand, though the case of the petitioners seems to be a case of genuine deprivation or discrimination, the reliefs claimed, however will not be available to them as per settled law and in the facts as they pertain. No doubt, it cannot be said that the petitioners were temporarily appointed irregularly or illegally, to the posts of Industrial Promotion Officer in the Commerce and Industries Department, inasmuch as, their selection and appointments was through a process conducted departmentally but it was clear from the start, that the same was under Regulation 3(f) of the MPSC (Limitation and Functions) 1972. which is quoted herein below for easy reference:-

"When an appointment is to be made by direct recruitment to temporary post created in a service, if it is necessary in the public interest that the appointment should be made immediately and reference to the Commission would cause undue delay; provided that if the post has been sanctioned for, or is likely to last for more than four months, the Commission shall as soon as possible be consulted in all matters mentioned in sub-clause (3) of Article 320 of the Constitution".

Appointment under Regulation 3(f) as indicated above is when in public interest an appointment is to be made immediately as reference to the Commission, in this case the MPSC, would cause undue delay, and also it clearly stipulates that a Commission would as soon as possible be consulted as per the mandate of Article 320 (3) of the Constitution of India. In the present case, the fact that the appointments were strictly under Regulation 3(f) and to be conducted by the Department, was clear in the advertisement dated 27.07.2010 itself (Annexure 1 of the writ petition). The petitioners therefore, at the time of entering temporary employment, were well aware as to the ramifications of their terms of their employment, which would necessarily entail proper regular selection to be conducted by the MPSC. It is in this context, it can be understood they had taken part in the regular selection process which was conducted pursuant to the first advertisement for regular selection dated 18.04.2013, which unfortunately was however not to their advantage as they were not selected, unlike other similarly situated candidates, who though appointed initially under Regulation 3(f) were successful in the regular selection.

It can be discerned therefore that the petitioners on the publication of the fresh advertisement dated 26.04.2016 by the MPSC which also included the posts which they are occupying, being apprehensive as to their chance of success in securing regular selection, came before this Court to stall the said process and to seek a mandamus for regularization. As observed earlier, though the temporary appointment of the petitioners is neither illegal or irregular, the terms of their appointments and the application of the Regulation 3(f) of the MPSC (Limitation and Functions) 1972, cannot however make their case sustainable or meet the requirement of law to render them any substantial relief. The judgments relied upon by the counsel for the petitioners are also of no assistance to their case.

In this view of this matter and on the facts discussed above, these petitions are disposed of, however with a direction that the petitioners be allowed to participate in the selection process as advertised by the MPSC on 26.04.2016 for filling up the vacancies, and if found to be overaged, the same to be condoned and relaxed as far as the petitioners are concerned.

Interim orders passed earlier shall all stand vacated.

There shall be no order as to costs.