Sengteng Ch. Marak & Ors vs State Of Meghalaya & Ors

By this writ petition, ten petitioners have jointly approached this Court with a similar and common cause, which is for regularization of their Grade-IV category services. The petitioners had joined their services on various dates in the years 2003, 2004, 2005 and 2006 on being engaged by the District Medical & Health Officer, East Garo Hills. According to the petitioners, the prayer for regularization has been made in view of the fact that the Government of Meghalaya is contemplating to advertise the said posts by way of regular recruitment. As such, being apprehensive about their continued employment they have prayed for a mandamus directing for regularization of their services against the posts that they are serving.

The particulars of their appointments are as follows:

Petitioner No. 1 was appointed in Grade-IV post vide appointment letter dated 12.05.2005 issued by the District Medical and Health Officer, East Garo Hills on officiating basis and till date is continuing in the said post.

Petitioner No. 2 was appointed in Grade-IV post vide appointment letter dated 01.06.2004 issued by the District Medical and Health Officer, East Garo Hills on officiating basis and till date is continuing in the said post.

Petitioner No. 3 was appointed in Grade-IV posts vide appointment letter dated 23.12.2005 issued by the Director of Health Services (MI), Meghalaya, Shillong on officiating basis and till date is continuing in the said post.

Petitioner No. 4 was appointed in Grade-IV post vide appointment letter dated 11.06.2004 issued by the District Medical and Health Officer, East Garo Hills, Williamnagar on officiating basis and till date is continuing in the said post.

Petitioner No. 5 was appointed in Grade-IV post vide appointment letter dated 15.10.2004 issued by the District Medical and Health Officer, East Garo Hills, Williamnagar on officiating basis and till date is continuing in the said post however with artificial breaks in her service.

Petitioner No. 6 was appointed in Grade-IV post vide appointment letter dated 02.01.2006 issued by the District Medical and Health Officer, East Garo Hills on officiating basis and till date is continuing however with artificial breaks in her service.

Petitioner No. 7 was appointed in Grade-IV post vide appointment letter dated 03.09.2004 issued by the District Medical and Health Officer, East Garo Hills, Williamnagar against a sanctioned post and till date is continuing however with artificial breaks in her service.

Petitioner No. 8 was appointed in Grade-IV post vide appointment letter dated 23.12.2003 issued by the District Medical and Health Officer, East Garo Hills on officiating basis and till date is continuing without breaks in her service.

Petitioner No. 9 was appointed in Grade-IV post vide appointment letter dated 20.09.2004 issued by the District Medical and Health Officer, East Garo Hills on officiating basis and till date is continuing without breaks in his service.

Petitioner No. 10 was appointed in Grade-IV post vide appointment letter dated 14.01.2006 issued by the Director of Health Services (MI), Meghalaya, Shillong on officiating basis and till date is continuing without breaks in his service.

The petitioners abovementioned were all working as noted above under different appointment letters and are temporarily officiating to the various posts with extension from time to time.

I have heard learned counsels for the parties.

Mr. H. Das, learned counsel appearing on behalf of the petitioners submits that all the petitioners have already crossed ten years of service on temporary basis without any Court's order for continuance of services and hence, they have acquired a vested legal right to claim for regularization of their services in their respective posts. He submits that in recognition of their services thereof, the respondent No. 4 vide letter dated 7th July, 2015 had communicated to the respondent No. 3 to move for necessary cabinet approval for regularization of the petitioner's services, but however, the petitioners have continued to be kept on an adhoc temporary basis, which has compelled them to approach this Court.

Learned counsel further submits that all the petitioners have since been serving for over ten years against sanctioned posts and as such, in view of their long services against the regular vacancies, they are eligible to be considered for regularization against the same. He further submits that the appointments are not illegal, as they have been made against the regular vacancies and at the most their appointments can only be termed as irregular. To substantiate the petitioner's claim for regularization, learned counsel for the petitioners has placed reliance on the following judgments:

(i) Secretary, State of Karnataka & Ors. v. Uma Devi & Ors: (2006) 4 SCC 1.

(ii) State of Karnataka & Ors. v. M.L. Kesari& Ors: (2010) 9 SCC 247.

(iii) Narendra Kumar Tiwari& Ors. v. State of Jharkhand& Ors: (2018) 8 SCC 238.

(iv) Food Corporation of India v. General Secretary, Food Corporation of India Employees Union & Ors: (2018) 9 SCC 464.

(v) State of Jharkhand & Ors. v. Kamal Prasad & Ors: (2014) 7 SCC 223.

(vi) Amarkant Rai v. State of Bihar & Ors: (2015) 8 SCC 265.

(vii) Secretary, Minor Irrigation Department and Roads v. Narendra Kumar Tripathi: (2015) 11 SCC 80.

(viii) State of Jammu and Kashmir & Ors. v. District Bar Association, Bandipora: (2017) 3 SCC 410.

Learned counsel submits that in these decisions rendered by the Hon'ble Supreme Court, the exception as carved out at para 53 of Uma Devi's judgment and the fact of irregular but not illegal appointments had been taken into consideration, and relief had been provided to such employees. As such, he submits that in view of the long services of the petitioners, the exception as carved out in the case of Uma Devi and enunciated in the case of M.L. Kesari, the respondents be directed to regularize the services of the petitioners against the posts they have been serving. Learned counsel further submits that the petitioners have also been given upgradation in their salaries which clearly indicates that their services are permanent in nature, notwithstanding the fact that, they were appointed temporarily against the sanctioned posts of Grade-IV. Learned counsel therefore submits that all the relevant aspects for granting regularization of service being present in the case of the petitioners, thereby they are eligible to be regularized accordingly.

Mr. R. Gurung, learned GA appearing on behalf of the State respondents in reply to the submission advanced by the learned counsel for the petitioners submits that the petitioners were only given temporary adhoc appointments for 2(two) months at a time with a one-day break. Learned counsel submits that for regular appointments, vacancies were to be filled up by way of a regular selection process conducted by the District Selection Committee wherein the vacancies were advertised, and selection done purely on merit.

He draws the attention of this Court to the Memorandum dated 24th September, 2015 (Annexure-III) of the affidavit-in-opposition, which mandates that all Appointing Authorities under different departments were directed to ascertain/assess the overall position of vacancies and these vacancies were to be intimated to MPSC/DSC/Departmental Selection Committee for filling up in regular manner. Learned GA submits that the petitioners being appointed without going through any selection process are all illegal and irregular appointees, and as such have acquired no vested rights for regularization.

With regard to the enhancement in the pay of the temporary adhoc employees, the learned GA submits that that the Government of Meghalaya, Finance (Pay Revision) Department had vide office Memorandum No. F (PR)143/2018/1 (BS) dated 14th June, 2018 extended the benefit of the 2017 Revised Pay Structure to persons appointed on temporary/Adhoc/Officiating Basis for the limited period with effect from 01.01.2017, provided their appointment had been made against sanctioned posts, with approval of the competent authority. He submits that the petitioners were extended the benefits of enhancement pay as they were admittedly temporarily appointed against sanctioned posts, but since the appointments were illegal and irregular, and not as per by due process, extension of the above benefits to the petitioners will not make them eligible for regularization.

With regard to the judgments cited by the learned counsel for the petitioners, the learned GA submits that exception as carved out at para 53 in Uma Devi (Supra) is for persons who had been employed by the Government for a period of not less than 10(ten) years before the judgment was rendered and that it was prescribed in the judgment that regularization be done as a one-time measure. He further submits that other judgment of M.L. Kesari (Supra) had only extended the exception of para 53 of Uma Devi to those persons who are not included in a one-time exercise. He concluded his submissions by reiterating that the petitioners had been appointed illegally against the said posts and therefore no vested rights have accrued to them to make them eligible for regularization and as such, the writ petition deserved no consideration and should be dismissed.

After hearing the submissions of the learned counsels for the parties and on examination of the materials on record, it is seen that all the petitioners admittedly have been working for over 10(ten) years period against various sanctioned posts on an officiating arrangement albeit, with breaks in service. The claim for regularization as made out by the petitioners is solely on the basis that they have been serving for a long period i.e. over 10(ten) years, against the sanctioned posts and that their pay has been revised from time to time, which according to the petitioners indicated employment which was permanent in nature. The claim put forth is also for the application of the various judgments rendered by the Hon'ble Supreme Court for consideration of their prayer for regularization.

I have given my thoughtful consideration to the claims as put forth by the petitioners and the legal position as it pertains in its application to the case at hand. All the petitioners are undisputedly in temporary service, some appointed for a period of 2(two) months at a time and some with breaks. As such, their services cannot be taken to be continuous. However, notwithstanding the artificial breaks, and even if it is assumed that their services of over ten years was continuous, it is seen the petitioners would still not come within the exception as prescribed by Uma Devi, inasmuch as, the petitioners were not in service for the required period before the said decision. In this context on the application of the exception, it will not be out of place to refer to the judgment rendered by the Hon'ble Supreme Court in the case of State of Karnataka & Ors. v. M.L. Kesari & Ors: (2010) 9 SCC 247. This ruling has explained and applied the exception as carved out by para 53 of Uma Devi's judgment as also to the circumstances under which such persons were to be considered, apart from distinguishing from such exception. Para 6, 7 & 8 of the judgment which are relevant are quoted herein below:

"6. This Court in Umadevi (2006) 4 SCC 1 further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court however made one exception to the above position and the same is extracted below: (SCC p. 42, para 53)

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore v. S.V. Narayanappa, AIR (1967) SC 1071, R.N. Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409 and B.N. Nagarajan v. State of Karnataka (1979) 4 SCC507 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work fourteen years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked fourteen years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date."

It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi, if the following conditions are fulfilled:

(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.

Umadevi casts a duty upon the concerned Government or instrumentality concerned, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10-4-2006)."

(Emphasis supplied)

Apart from the law as laid down by the above quoted judgment, the case of the petitioners as they were all appointed from 2003 onwards, also does not come under the scope for consideration as applied to daily wages/adhoc/casual employees who have put in 10(ten) years continuous service as on 10th April, 2006, without availing the protection of any interim order of the Courts or of Tribunals, who were not considered within the 6(six) months' period, or were not part of a one-time exercise to be considered in terms of para 53 of Uma Devi.

It will also be advantageous in this regard to quote Para 11 of the same judgment, which has a bearing in the instant case. Para 11 of the judgment is reproduced herein below:

"11. The object behind the said direction in para 53 of Umadevi is two-fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual basis for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure."

The other judgments as placed by the learned counsel for the petitioners are easily distinguishable from the present case, more particularly the judgment of Narendra Kumar Tiwari & Ors. v. State of Jharkhand & Ors: (2018) 8 SCC 238 as in the said case, regularization was directed of irregular appointed employees by interpretation of the Regularization Rules which were prevalent in the State of Jharkhand which is not the situation in the present case.

The petitioners not coming within the exceptions as prescribed by Uma Devi or liable for consideration by the application of the judgment of M.L. Kesari, have attained no vested right for the claim of regularization nor can a mandamus be sought from this Court for consideration of the same. In view of the facts and circumstances of the case, the instant writ petition being devoid of merit is accordingly dismissed.

However, before parting with the records, in the event the said posts currently manned by the petitioners are advertised, the respondents may allow the petitioners to participate in the regular selection process by relaxing their age as a one-time measure in the interest of justice, which however shall not in any manner be treated as a precedent.