LOTHINA D SANGMA Vs. STATE OF MEGHALAYA
LAWS(MEGH)-2021-3-12
HIGH COURT OF MEGHALAYA
Decided on March 12,2021

Lothina D Sangma Appellant
VERSUS
STATE OF MEGHALAYA Respondents

JUDGEMENT

Biswanath Somadder, J. - (1.) The writ appeal is in respect of the judgment and order rendered by a learned Single Judge on 2nd August, 2019, in WP(C) No. 313 of 2016 (Shri Sengteng Ch. Marak & Ors. v. State of Meghalaya & Ors.). By the impunged judgment and order, the learned Single Judge dismissed the writ petition with the following observations:- '7. 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. 8. 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 and Ors. v. M.L. Kesari and 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 and 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.' 7. 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. 8. 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) 9. 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/adhoc/ 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.' 10. 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 and Ors. v. State of Jharkhand and 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.' On a plain reading of the impugned judgment and order ' relevant portion whereof has been quoted hereinabove ' it appears that it is supported with cogent and justifiable reasons. In an intra-Court Mandamus appeal, interference is usually warranted only where palpable infirmities and/or perversities are noticed on a plain reading of the impugned judgment and order. We do not notice any such palpable infirmity or perversity which would warrant interference. In such circumstances, the writ appeal is liable to be dismissed and stands accordingly dismissed. In view of dismissal of the appeal, the Miscellaneous application, being MC (WA) No. 38 of 2019, stands disposed of accordingly. ;


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