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Judgment
By way of the present petition, the petitioners seek quashing of the Notification dated 27th July, 2010 issued by the Secretary to the
Government of Meghalaya, Revenue and disaster Management Department and the office order No. SY/G/76/92-93 dated 25th August, 2010
issued by Additional Director Surveys, Meghalaya, Shillong and order No. RDG.3/96/220 dated 29th May, 2012 issued by the Government of
Meghalaya, Revenue and disaster Management Department. The petitioners also pray for a direction to the respondents to consider their case for
regularisation of their service and grant pensionary benefits and provide them the same service benefits at par with the employees (Tindals and
Khalasis) working under the Survey School of Tura.
Succinctly stated, the case of the petitioners is that they were appointed as temporary/seasonal Khalasis w.e.f. 1979 on different dates with the
Directorate of Land Records and Survey, Meghalaya, Shillong. They were continuing in service for more than 25/30 years without break in service
with Grade-IV pay scale, but without annual increment and pensionary benefits.
It is stated by the petitioners that the Directorate of Land Records and Survey, Shillong was requested by Government of Meghalaya to furnish
clarification in respect of service condition/draft service rules of the Tindal and Khalasi vide letter dated 2nd March, 2005, 1st July, 2005 and 5th
September, 2005 but the respondent failed to furnish the requisite information.
The petitioners have also stated that despite there being 12 sanctioned posts of Tindal and 112 posts of Khalasi under Non- Plan and Plan lying
vacant in the year 1998, the respondents did not absorb the petitioners against the sanctioned posts.
It is further stated by the petitioners that a scheme being, ""The Meghalaya Regular Tindal and Khalasi Employees Scheme, 2008"" was
introduced by an Office Memorandum dated 4th September, 2009 by the Secretary, Government of Meghalaya, Revenue and Disaster
Management Department, Shillong which was published in the Gazette of Meghalaya.
In terms of Rule 3 of the aforesaid Scheme, it stated that a Tindal/Khalasi Employee who was immediately before the date of coming into force
of the Scheme may be conferred with a status of a regular Tindal/Khalasi Employee from such date, not being the date earlier than the date this
Scheme came into force, as the appointing authority may by order specify and in Rule 3 (3) only the existing Tindal/Khalasi Employee should be
conferred with the status of Regular Tindal/Khalasi Employee status and no substitute shall be appointed in his place. It was further provided in the
Scheme that any appointment to the contrary would be viewed seriously and the authority making such appointment should be held personally
responsible for violation of the provisions of the Scheme.
The petitioners have also stated that despite the aforesaid Scheme the respondents did not regularise the services of the petitioners from the date
of their continuous service or even from the date of publication of the Scheme of 2008.
It is further stated that the respondents, thereafter, issued the impugned Notification dated 27th July, 2010 also calling ""The Meghalaya Regular
Tindal and Khalasi Employee Scheme, 2008"". Although the contents of both the Schemes were same, but in the last line it was mentioned that
This supersede the Department''s O.M. No. RDG.3/96/152 dated 4th September, 2009"". According to the petitioners the respondents with an
ulterior motive and with a view to deprive the petitioners'' right to avail Old Pension Scheme i.e. Old ""Meghalaya Pension Rules, 1983"" which was
abashed w.e.f. 1st April, 2010 and introduced the New Define Contribution Pension Scheme, 2010 for those employees who would be appointed
on or after 1st April, 2010 and thereafter the respondents issued the impugned order dated 25th August, 2010 regularizing the services of the
petitioners with effect from the date of issue of the order in pursuance of the second Notification dated 27th July, 2010, which was issued without
the approval of Personnel Department AR (B) Department, Shillong, which is contrary to law and is not enforceable.
Being aggrieved by the impugned Notification dated 27th July, 2010 and orders dated 25th August, 2010 and 29th May, 2012, the petitioners
represented to the Principal Secretary to the Government of Meghalaya, Revenue and Disaster Management Department, Shillong vide letters
dated 28th August, 2012 and again on 30th November, 2012. However, no action was taken by the respondents thereby depriving the petitioners
of their legitimate rights of regularisation from the date of continuous service or at least 10 years prior to the Office Memorandum date 4th
September, 2009. Hence, the present petition.
The petition is opposed by the respondents. An affidavit-in-opposition was also filed denying the averments made in the petition by the
petitioners.
Learned counsel for the petitioners urged that the respondents have failed to consider the case of the petitioners which tantamount to violation
of their fundamental rights guaranteed under Article 14 and 16 of the Constitution of India and as such the impugned orders are liable to be set
aside and quashed.
Learned counsel for the petitioners also argued that Tindal and Khalasi employees who had been appointed and working in the same
Directorate of Tura Survey School, Tura though their services were regularised vide order dated 22nd December, 2011 w.e.f. 12th August, 2010,
but allowed them to avail all the service benefits including family pension as per the old Pension Rules, 1983 whereas the same has been denied to
the petitioners though working under the same Department which is discriminatory and not sustainable in law.
It is further argued by counsel for the petitioners that in pursuance of the decision of the Government on the recommendation of the Fourth
Meghalaya Pay Commission at Item No. 12.12 of Resolution No. F (PR)-42/2009/108 dated 17th September, 2009 relating to New Pension
Scheme, the Governor of Meghalaya was pleased to introduce ""The New Defined Contribution Pension Scheme"". The said Scheme comes into
operation w.e.f.1st April, 2010 and was applicable to all new entrants to State Government service joining on or after 1st April, 2010. It clearly
indicates that the New Defined Contribution Scheme, 2010 is not applicable to the petitioners as they were appointed since the year 1979-1988
and thereafter they have been continuing in service without break. Thus, the New Defined Contribution Scheme, 2010 is not applicable to the
petitioners and they are entitled to avail pension as per the old Pension Rules, 1983.
Learned counsel for the petitioners further contended that the respondents failed to frame any service rules for the welfare of its Tindal and
Khalasi employees under Article 309 for more than 30 years, but issued Office Memorandum in pursuance of Article 162 of the Constitution of
India vide Notification dated 4th September, 2009 and without authority of law introduced the same Scheme but on different date i.e. 27th July,
2010 by superseding the earlier Office Memorandum.
Per contra, learned counsel for the respondents contended that selection of candidates for appointment of Khalasis was purely temporary and
their services are also treated as seasonal workers as embodied under S.R. 113 of the Meghalaya Fundamental Rules and Subsidiary Rules, 1984.
It is further submitted by counsel for the respondents that regularization of the service of the Tindals and Khalasis came into force from the date
of publication in the official Gazette only on 12th August, 2010 and not from the date of initial appointment as Tindals and Khalasis and accordingly
the order dated 25th August, 2010 was issued for those Tindals/Khalasis who rendered continuous service of 10 years or more conferring the
status of regular employees w.e.f. August, 2010.
Counsel for the respondents further submitted that regularisation of service cannot be claimed as a legal right. The regularisation was done by
the Government for the better avenues of the workers and till date the petitioners have intentionally avoided the benefits given to them by the
Government.
I have heard learned counsel for both the parties and also carefully gone through the material placed on record.
At the outset, it may be mentioned that Mr. A.H. Hazarika, learned counsel for the petitioners submitted that the petitioners restrict their claim
to the pensionary benefits as per Meghalaya Civil Services (Pension) Rules, 1983 and their past service without break may be counted for
qualifying service for pensionary benefits only. He also submitted that the petitioners will not claim arrears and other related service benefits of their
past service. The counsel for the petitioners also pointed out that an affidavit of petitioner No. 1 in this regard was filed on 3rd August, 2017.
It is not disputed that the petitioners rendered services as temporary/seasonal Khalasi with effect from 1979 onwards, but without annual
increment and pensionary benefits. However, their services were regularised only on 25th August, 2010 after the issuance of the Notification dated
27th July, 2010 and not after the issuance of the first Office Memorandum on 4th September, 2009.
The Governor of Meghalaya introduced ""The Meghalaya Regular Tindal and Khalasi Employees Scheme, 2008"" vide Office Memorandum
dated 4th September, 2009 published in the Gazette of Meghalaya on 10th September, 2009 (Annexure-9 of the Writ Petition). Clause 3 of the
said Memorandum stipulated as under:-
Contentment of the Status of a Regular Tindal/Khalasi Employee-
(1) A Tindal/Khalasi Employee who has, immediately before the date of coming into force of this Scheme may be conferred with a
status of a Regular Tindal/Khalasi Employee from such date, not being a date earlier than the date this Scheme came into force, as the
appointing authority may by order specify.
(2) Conferment of a Regular Tindal/Khalasi Employee status on any Tindal/Khalasi Employee shall be made on the basis of records
available in the office of the appointing authority and, whenever necessary, further documentation for the purpose of verification of
age, initial employment and other particulars may be called for from the Tindal/Khalasi Employee concerned. Conferment of the
status shall be without reference to availability of creation of post and a Regular Tindal/Khalasi Employee will continue to perform
duties of a Casual Worker anywhere within the jurisdiction of the appointing authority. A Regular Tindal/Khalasi Employee shall be
paid the Salary as may be fixed by the State Government existing from time to time.
(3) Only the existing Tindal/Khalasi Employee shall be with the status of a Regular Tindal/Khalasi Employee and no substitute shall be
appointed in his place. Any appointment to the contrary will be viewed seriously and the authority making such appointment shall be
held personally responsible for violation of the provisions of this scheme.
(4) Subsequent appointment of the Khalasi shall not be treated under Regular Tindal and Khalasi Employee Scheme. The Appointing
Authority may appoint with the approval of Administrative Department (Revenue & Disaster Management Department) for a specific
period, that is, during the field Season only subject to the exigencies of Survey works.
The intention of the aforesaid Scheme was clear that the Tindal/Khalasi Employees be conferred the status of a Regular Employee. However,
the respondents after the issuance of the aforesaid Memorandum did not regularise the services of the petitioners. In the meantime, another
Notification dated 27th July, 2010 was issued whereby the earlier Memorandum dated 4th September, 2009 was superseded. Interestingly, the
respondents regularised services of the petitioners after about one month of the issuance of the second Notification vide order dated 25th August,
2010 thereby depriving them from the pensionary and other service benefits which were available under the old Pension Scheme which was
abolished with effect from 1st April, 2010. This action on the part of the respondents, to my mind, is not justified and the same is contrary to all
tenets of law.
Undisputedly, the petitioners served the respondents for more than 25/30 years, but without any justification or reason, their services were not
regularised for more than 10 months after the issuance of the first Memorandum dated 4th September, 2009. The respondents have also failed to
show any valid reason for not granting the status of a Regular Employee to the petitioners after the introduction of the Scheme in September, 2009.
Except a mere denial in the counter affidavit nothing has been explained or averred in this regard.
The petitioners in their writ petition have taken a specific plea that the Tindal and Khalasi Employees who have been appointed and working
under the same Directorate at Tura Survey School, Tura though their services were regularised vide order dated 22nd December, 2011 with effect
from 12th August, 2010 but they were allowed to avail other service benefits including family pension as per the old Scheme. The respondents in
the counter affidavit merely denied the averments and have not explained as to why they were granted the benefits, whereas the same has been
denied to the petitioners. There is no reason to deny the same treatment which was meted out to the persons similarly situated, as denial thereof
would amount to invidious discrimination which is anathema to the right of equality enshrined under Article 14 of the Constitution of India.
A perusal of the record also shows that the respondents themselves wrote a letter dated 23rd September, 2013 to the Principal Secretary to
the Government of Meghalaya, Revenue Disaster Management Department for considering the regularization of services of Tindal and Khalasi with
effect from the year of first publication of the Memorandum (Annexure-1 of the rejoinder affidavit). The said letter dated 23rd September, 2013 is
reproduced as under:-
GOVERNMENT OF MEGHALAYA
DIRECTORATE OF LAND RECORDS & SURVEYS
No. LRS. 34/2008/996
Dated Shillong, the 23rd September, 2013
From :- Shri. H.B. Marak, M.C.S.,
Director of Land Records & Surveys,
Meghalaya, Shillong.
To
The Principal Secretary to the Govt. of Meghalaya,
Revenue Disaster Management Department
Sub:- Regularisation of Tindal and Khalasi - reconsideration thereof.
Sir,
With reference to the above, I have the honour to request you to kindly reconsider the regularization of the services of the Tindal and
Khalasis with effect from the year, of first publication of the Office Memorandum i.e. during the year 2008 as the same was only
modified in the year 2010 in order to enable the employees to enjoy the pension and other benefits by taking into consideration the
long period of service rendered by the employees as most of them had already put in service more than 25 (twenty five) years before
publication of the Office Memorandum. Therefore, justifying their long years of service on humanitarian ground the Government is
requested to kindly reconsider the matter at the earliest possible.
Yours faithfully,
Sd/-
Director of Land Records & Surveys,
Meghalaya, Shillong
Learned counsel for the petitioners submitted that the Government of Meghalaya, did not send any reply to the letter dated 23rd September,
2013. There is no reason as to why the respondent No. 3, Principal Secretary to the Government has not sent any reply to the said letter for such
a long period.
In view of the facts and circumstances of the case and considering the submissions made by learned counsel for the petitioners and also an
affidavit of the petitioner filed on 3rd August, 2017 stating that the petitioners restrict their claim to the pensionary benefits as per Meghalaya Civil
Services ( Pension) Rules, 1983 and their past service without break may be counted for qualifying service for pensionary benefits and the
petitioners will not claim arrears and other benefits of past service, it is deemed appropriate to direct the respondents/Competent Authorities to
consider the matter regarding regularisation of the services of the petitioners in view of the first Office Memorandum dated 4th September, 2009
and to pass a reasoned order, in accordance with law, within a period of one month from the date of receipt of the copy of this judgment.
No order as to costs.
With the aforesaid observations, the petition stands disposed of.