Serial No.01
Supplementary List HIGH COURT OF MEGHALAYA
AT SHILLONG
W.A.No.47 of 2023
Reserved on: 29.02.2024
Pronounced on: 26.04.2024
Shri. Iajiedlang Rynjah Appellant
…
-vs-
1. The Union of India, represented by the
Secretary, Ministry of Health and Family Welfare,
Government of India.
2. The North Eastern Indira Gandhi Regional
Institute of Health and Medical Science, represented by
the Director, P.O-Mawdiangdiang, Shillong-793018,
Meghalaya.
3. The Assistant Administrative Officer,
General Administration, NEIGRIHMS,
P.O-Mawdiangdiang, Shillong-793018,
Meghalaya.
4. The Assistant Administrative Officer,
Establishment-I/GAD, NEIGRIHMS,
P.O-Mawdiangdiang, Shillong-793018,
Meghalaya.
5. The Assistant Administrative Officer,
Establishment-I & III, NEIGRIHMS,
P.O-Mawdiangdiang, Shillong-793018,
Meghalaya.
6. The Anatomy Department, NEIGRIHMS,
Represented by the Head of Department,
P.O-Mawdiangdiang, Shillong-793018,
Meghalaya.
7. The Chairman,
Ranger Security & Service Organisation,
Mawlai, Shillong. s
… Respondent
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Coram:
S.Vaidyanathan, Chief Justice
Hon’ble Mr. Justice
Hon’ble Mr. Justice W.Diengdoh, Judge
For the Appellant : Mr.N.Syngkon, Adv.
Ms.L.Phanjom, Adv.
For the Respondents : Dr.N.Mozika, DSG with
Ms.A.Pradhan, Adv.
Mr.S.Pandy, Adv.
i) Whether approved for Yes
reporting in Law journals etc.:
ii) Whether approved for publication Yes
in press:
J U D G M E N T
(Made by the
Hon’ble Chief Justice)
This Writ Appeal has been filed, seeking a) to set aside the order
dated 15.09.2023 passed by the learned Single Judge in W.P(C) No.424
of 2019, b) to set aside the office order dated 03.09.2019 and letter
dated 23.09.2019, c) to direct the respondents to allow the petitioner to
continue with his service in the post of Technical Assistant in the
Department of Anatomy at NEIGRIHMS and d) to direct the
respondents to regularize / absorb the service of the appellant.
Brief Facts as put forth by the Appellant:
2. The Appellant was employed in the Department of Anatomy,
NEIGRIHMS as Technical Assistant in the year 2013 and was selected
by means of selection process pursuant to the notification dated
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01.10.2012. In the year 2019, an announcement was made that the
employees, who were earlier appointed on contract basis would be
engaged through outsourcing under the terms and contract in existence;
2.1. Being aggrieved by such communication dated 02.07.2019,
terming it to be violative of Articles 14, 16 and 21 of the Constitution of
India, the appellant had filed a Writ Petition in W.P(C) No.253 of 2019,
challenging the letter dated 02.07.2019 with a prayer of equal pay for
equal work and also sought for regularization of the services of the
appellant;
2.2. The Writ Petition was disposed of on 15.07.2019,
permitting the appellant to file a comprehensive representation to the
respondents within 15 days and the concerned authority was directed to
pass a speaking order within six weeks after affording an opportunity of
being heard to the petitioner and R7. In obedience to the order dated
15.07.2019, the appellant also made a representation on 30.07.2019 and
the appellant received an Office Order dated 03.09.2019, releasing him
from service with effect from 30.06.2019. However, in the subsequent
letter dated 23.09.2019, it was stated that he would be allowed to
continue his service till 30.09.2019;
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2.3. Against the Office Order dated 03.09.2019 and the Letter
dated 23.09.2019, the appellant filed W.P(C) No.424 of 2019 with an
interim prayer that the respondents shall not disturb the service of the
appellant or replace him and also sought for regularization and
absorption in the service with equal pay for equal work;
2.4. Learned Single Judge, vide order dated 15.09.2023 disposed
of the case with the following observation:
2. During the course of hearing of the matter, the learned
“
counsel for the petitioner somehow curtailed this challenge
with regard to the aforesaid impugned letter but raised
grievance against the order No. NEIGR-GAD/1/2017/42,
dated Shillong the 02.07.2019, by which appointment on
contract basis in the institute was ordered to be made through
outsourcing. Learned counsel submits that the said order is not
in accordance with law and the respondent authority cannot do
the contractual appointment by outsourcing their authority.
3. Dr.N.Mozika, learned Sr. counsel appearing for the
respondent submits that the post held by the petitioner stood
abolished in terms of office memorandum dated 12.06.2017,
issued by the Ministry of Finance Department Expenditure,
Govt. of India, in which at Clause 5.1, it was provided that all
posts, except newly created posts, kept in abeyance or
remaining vacant for a period of more than two years in the
ministry/ department/ attached office/ subordinate office/
statutory body will be considered as “ deemed abolished”. He
further submits that the post abolished cannot be filled up
without obtaining prior revival of post from the Department of
Expenditures. The learned Sr. counsel also produces a
communication made bearing No. NEIGR-GAD
(RC)/08/2022/Pt. dated Shillong the 26.06.2023, whereby, a
proposal for revival of deemed abolished Group-C posts in
NEIGRIHMS was made by the Deputy Director
Administration, NEIGRIHMS, Shillong. The said proposal
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also includes the post which was held by the petitioner. It is
submitted by the learned Sr. counsel that in the event the
proposal for revival is accepted and the post in question is
required to be filled up, the same will be done by a regular
advertisement and selection process.
4. Mr.Syngkon, learned counsel for the petitioner in his
usual frankness submits that in the event the post in question is
filled up in future by adopting a regular process, the petitioner
would not have any further grievance to be redressed in this
matter. He however, he prays that in the event if any
advertisement is made, the petitioner’s case for age relaxation
may be considered by the department.
5. In view of the submissions made, there survives nothing
to be adjudicated by this Court. However, in the event of any
advertisement made with regard to the post in question, the
department would be at liberty to consider the claim of age
relaxation by the petitioner in case he offers himself to be a
candidate.
6. With the aforesaid submissions, this writ petition is
accordingly disposed of.
”
2.5. According to the appellant, the respondents have come
forward with an incorrect statement before the learned Single Judge that
there was abolition of post, whereas the post still exists and the same
has been filled in through outsourcing method and contractual employee
cannot be removed from service by way of appointing some other
contractual employee, as a contractual employee can be replaced only
by way of regular employee. Thus, it was pleaded that the act of the
respondents in relieving him service vide Office Order dated 03.09.2019
is illegal, unconstitutional and sought for interference by this Court.
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3. The case of the respondents was that recruitment had taken
place to fill up the post on contract basis only, as could be seen from the
advertisement dated 26.02.2019. There was a deed of agreement, which
enabled the appellant to continue in service for a period of six months
and that by giving one month notice either by the employee concerned
or Institution, services could be disengaged. The further case of the
respondents was that the post held by the appellant stood abolished by
the Ministry of Finance Department Expenditure, Govt. of India, stating
that all posts, except newly created posts, are kept in abeyance or
remaining vacant for a period of more than two years in the ministry/
department/ attached office/ subordinate office/ statutory body will be
considered as deemed abolition.
3.1. It was stated by the respondents that NEIGRIHMS has
made a representation and sent a proposal for revival of deemed
abolished Group-C posts by the Deputy Director Administration,
NEIGRIHMS, Shillong. Before the learned Single Judge, a plea was
taken by the appellant that in case the proposal for revival of the post in
question is accepted and the post in question is filled up in future by
adopting regular process,
the petitioner’s case for age relaxation may be
considered by the department. Based on the said submission, the Writ
Petition was disposed of with a direction that in the event of any
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s case for age relaxation may
advertisement being made, the appellant’
be considered.
4. Heard the learned counsel on either side and perused the
material documents available on record.
5.The appellant applied for the post of Technical Assistant based
on the advertisement dated 26.02.2019 and he was duly selected in the
recruitment. It was averred by the appellant that it has been advertised
that it was proposed to fill up the vacancy, which arose against the
sanctioned post. However, the stand of the respondents was that even
though the appellant was employed on contract basis, there was a direct
payment system and as the post itself got abolished, the case of the
appellant cannot be considered. It was stated by the respondents that in
case the post is revived in future, the appellant would be entitled to the
relief.
6. From the above submissions, it is clear that there were two
posts of Technical Assistant and one post got filled up in the year 2016
and in another post, the appellant was appointed on contract basis. The
Central Government has taken a decision to abolish the post, if it is
lying vacant for more than two years. It is very unfortunate that in a
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sanctioned post, the appellant has been asked to work on contract basis
and thereafter through outsourcing and there was a contract system as
admitted by the respondents. Admittedly, the post has not been revived.
It is seen that the appellant has confined the relief before the learned
Single Judge. This Court is of the view that in the light of the judgments
of the Apex Court in the case of Workmen of the Food Corporation of
India vs. Food Corporation of India, reported in (1985) 2 SCC 136 and
Balbir Singh vs. Kurukshetra Central Co-operative Bank Ltd. and
another, reported in (1990) 2 LLN 576, employment should be
provided, when the job is perennial in nature and the employees should
be engaged directly. The aforesaid two judgments have been rendered in
the context of industrial disputes to denote that no relief could be
obtained, if the post itself ceases to exist. By extracting work in a
sanctioned post and after direct recruitment, the appellant was employed
through Contractor and thereafter, through outsourcing. In the case on
hand, the respondents claim that the post of Technical Assistant ceases
to exist.
7. We are of the view that the action of the respondents cannot
be held to be fair, proper and bonafide. However, as the appellant has
confined his prayer before the learned Single Judge, no relief can be
granted in this appeal. It is open to the appellant to file a Review
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Application before the learned Single Judge, if so advised. Whether the
consent is made or not, it is for the learned Single Judge to decide if a
Review is filed. Certainly, the Division bench cannot decide the issue as
we are not aware whether there was an actual consent given or not. If
any such Review Application is filed, it is for the learned Single Judge
to decide, whether there is actual cessation or not and other related
issues, including the maintainability of the Review Application.
8. In the result, W.A.No.47 of 2023 is dismissed.
(W. Diengdoh) (S. Vaidyanathan)
Judge Chief Justice
Meghalaya
26.04.2024
Lam DR-
“ PS”
PRE-DELIVERY ORDER IN
W.A.No.47 of 2023
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