Chhakchhuak Lal Thlamuana v. State of Mizoram — 1995 DIGILAW 191 (GAU)

The petitioner was teaching at Linglei Private/Aided College since 1965. The said college was provincialised/taken over by the Government of Mizoram with effect from 1.12.1976. Thereafter three other private colleges were provincialised by the Government of Mizoram vide notification dated 16th January, 1989. At the time of taking over of Linglei College, certain terms and conditions were laid down in regard to the service conditions of the teaching staff. Condition 1 (b) was as follows : “Past services would not count for seniority.” Being aggrieved the present petitioner and 7 (seven) other Lecturers of Lunglei College approached this Court in Civil Rules 451 of 1985 to 45 8 of 1985. All the petitioners in the aforesaid writ petitions claimed that they were entitled to seniority, promotion, pension, gratuity and other retirement benefits for the services rendered by them prior to the provincialisation of Lunglei College. In otherwords, the aforesaid petitioners claimed that they were entitled to get all the service benefits including seniority for their past service rendered before Lunglei College was taken over by the Government of Mizoram. The said 8 (eight) writ petitions were disposed of by a common judgment of a Division Bench of this Court on 5.9.1989. Among other things this Court held: “It is well settled that in service jurisprudence the seniority has to be counted according to length of service in absence of any statutory rules.” This Court was of the view that the benefits of services rendered by the petitioners before Lunglei College was provincialised could not have been wiped out completely. In otherwords, this Court was of the view that the past services rendered by the petitioners should be considered for inter se seniority, promotion, pension and other retirement benefits. The aforesaid petitions were allowed and the following direction was issued: “We accordingly direct that the past services rendered by the petitioners as Lecturers before 1.12.76 shall be considered for inter se seniority, promotion, pension and other retirement benefits.” 2. The petitioner filed Civil Original Contempt (Petition) No.22 of 1990 on 16.3.90 for initiating contempt proceedings against the Chief Secretary of Mizoram for alleged non-compliance of this Court's direction issued on 5.9.89. The petitioner filed Civil Original Contempt (Petition) No.22 of 1990 on 16.3.90 for initiating contempt proceedings against the Chief Secretary of Mizoram for alleged non-compliance of this Court's direction issued on 5.9.89. It may be appropriate for me to state at this stage that on careful perusal of this Court's direction dated 5th September, 1989 by which the respondent State was directed to consider the past services of the Lecturers of Lunglei College for inter se seniority, promotion, pension and other retirement benefits, this Court had not given time limit during which the Court's direction should be carried out. 3. In the meantime the State of Mizoram had filed Special Leave Petition No. 10398-405/90A/N before the Hon'ble Supreme Court against the judgment dated 5.9.89 passed by this Court. The said petition was disposed of by the Supreme Court after hearing learned counsel of both sides on 15.4.91. The said order reads as under: “Delay is condoned. The learned counsel for the petitioner states that the new rules have been framed and also notified with effect from 19.10.76 and in that view the grievance of the writ petitioners, who are respondents before this Court, must be deemed to have disappeared. The learned counsel for the respondents states that the effect of the notification of these rules is that the present Special Leave Petitions have become infructuous and the new rules, if so advised, the respondents may have to challenge by filing a fresh case. The Special Leave Petitions must be treated to have become infructuous now and are dismissed as such.” 4. In the present writ petition the petitioner is impugning Government notification dated 18th March, 1991 which was Gazetted on 27.3.91 and another notification dated 27th March, 1991 which was also Gazetted on 27.3.1991. Notification dated 18th March, 1991 at Annexure 5 concerns Rules of Mizoram Colleges (Provincialisation) Rules, 1991 and notification dated 27th March, 1991 at Annexure 6 concerns amendment of the aforesaid Rules regarding the effective date of the enforcement. 5. The petitioner contends that the Rules of 1991 were framed by the respondent Government to defeat the purpose of the judgment given by this Court. It is further contended that the impugned Rules were framed to nullify the benefit sought to be given by this Court's judgment dated 5th September, 1989. 5. The petitioner contends that the Rules of 1991 were framed by the respondent Government to defeat the purpose of the judgment given by this Court. It is further contended that the impugned Rules were framed to nullify the benefit sought to be given by this Court's judgment dated 5th September, 1989. It is also averred that the impugned notification are violative of Article Hand 16 of the Constitution. The petitioner further contends that notification dated 27th March, 1991 by which the Rules of 1991 were amended as regard the effective date of enforcement of the rules with effect from 19.10.1976 is also arbitrary and malafide and such retrospective effect has been given to the detriment of the petitioner. 6. The petitioner is particularly aggrieved by Rule 5 (2) which reads as under: “5. (2) One third of the past service of the teaching or non-teaching staff appointed on regular basis as explained at sub-rule (1) rendered under private college and/or aided college will be counted as qualifying service under the Government for the purpose of fixation of seniority and/or promotion to next higher posts or grade, subject to a maximum of 5 years.” Mr. PC Prusty, learned counsel appearing for the petitioner has urged strenuously that Rule 5 (2) quoted above has been made in contravention to the direction given by this Court on 5th September, 1989 that the past services shall be considered for inter se seniority, pension, promotion and other retirement benefits. Mr. Prusty further submits that the petitioner has been refused seniority, promotion, pension gratuity and other retirement benefits for services rendered by him before the provincialisation. Para 4 of Government affidavit states that notification dated 18.3.1991 was also made applicable to Lunglei College which was provincialised with effect from 1.12.1976 by amendment made in the 1991 Rules by notification dated 27.3.1991. Para 6 of the Government affidavit denies that the State of Mizoram did not implement the judgment and order dated 5.9.1989. It is further stated that as directed by this Court the State Government of Mizoram initiated necessary action by framing the aforesaid Rules of 199 K Mr. KP Pathak, learned Assistant Advocate General of Mizoram submits that every action initiated by the State of Mizoram has been in order to implement the direction given by this Court. It is further stated that as directed by this Court the State Government of Mizoram initiated necessary action by framing the aforesaid Rules of 199 K Mr. KP Pathak, learned Assistant Advocate General of Mizoram submits that every action initiated by the State of Mizoram has been in order to implement the direction given by this Court. Government affidavit further states in para 9 as follows : “It is submitted that by giving due regard to the principles of natural justice, provision was made in Rule 5 (2) of the principal Rules and gave protection of 1/3 of the past services rendered under the private college and or aided college as qualifying service under the Government for the purpose of fixation of seniority, promotion etc to the next higher post or grade etc subject to a maximum of five years. It may be mentioned here that appointment of Lecturers in the Government college is by way of selection conducted by the Mizoram Public Service Commission. Whereas appointment of Lecturer in a private college before it is accorded the deficit status is made by the Governing Body constituted by the persons establishing the college, from the locally available persons whether they fully qualify or not. It is further submitted that the petitioner was first appointed as Lecturer in Lunglei College in 1965 immediately after his graduation and before he acquired the master degree. That it is against all fairness to equate the services rendered by him as a Lecturer in a private college with the services rendered by a Lecturer in a Government College. Thereafter, counting of 1/3 of the past services rendered by the teaching and non-teaching staff appointed on regular basis with a maximum of 5 years as provided in Rule 5 (2) of the principal Rules for the purpose of fixation of seniority in the grade is in order. It is pertinent to mention that the entire period of past services rendered by the teaching and non-teaching staff in the private college is counted as qualifying services for all other purposes like pension, retirement benefit, sanction of loans and advances etc. Therefore, the provisions of the Rules as made for counting past services was made not to escape the contempt proceedings as alleged by the petitioner.” The averment of fact made in the Government affidavit has not been rebutted by the petitioner. 7. Therefore, the provisions of the Rules as made for counting past services was made not to escape the contempt proceedings as alleged by the petitioner.” The averment of fact made in the Government affidavit has not been rebutted by the petitioner. 7. AIR 1984 SC1291 relates to fixation of seniority in respect of Executive Engineer who had held the post continuously on officiating basis holding that in such a case seniority be based on length of continuous officiation. Mr. Prusty submits that the facts of this case arc squarely applicable to the case at hand. It is also submitted that while giving direction on 5th September, 1989, this Court had accepted the view expressed in the above Supreme Court case. 8. Mr. KP Pathak, learned Assistant Advocate General submits that Rules have been framed in exercise of power enjoined under Article 309 of the Constitution and as such it has the force of an Act. It is therefore submitted that the Rules made under Article 309 of the Constitution can be challenged only on the ground on which an Act as such can be challenged if provisions of Article 14 and 16 are violated. It is the further submission on behalf of the Government that the State is the competent authority to lay down certain criteria in order to reconcile and settle problems which normally arise concerning conditions of service in respect of employees of private institutions and conditions of service in respect of regular Government employees. According to Mr. Pathak certain formula has to be evolved in order to set at rest any difficulty that arises in such a situation. Lunglei College was provincialised with effect from 1.12.1976. Therefore three colleges viz, (1) Champai College, (2) Serchip College and (3) Aizawl College were provincialised in 1989. The impugned Rules were framed in order to meet the needs and circumstances of all the four provincialised colleges under the same provisions of the rules. It is therefore submitted on behalf of the Govenmentthat in order to apply the Rules squarely to all the four provincialsed colleges, it became necessary on the part of the State of Mizoram to apply the provisions of the Rules of 1991 with effect from 1.12.1976 on which date Lunglei College was provincialised. It is therefore submitted on behalf of the Govenmentthat in order to apply the Rules squarely to all the four provincialsed colleges, it became necessary on the part of the State of Mizoram to apply the provisions of the Rules of 1991 with effect from 1.12.1976 on which date Lunglei College was provincialised. According to Government if it had not been done in this manner there would have been discrimination in the matter of application of rules regarding the service conditions of all the teaching and non-teaching staff of the aforesaid four colleges. It appear the State of Mizoram is the competent authority to evolve certain formula to solve the problem concerning service conditions of the provincialised colleges. No doubt it is a matter of policy to do so and the Government is in an advantageous position to examine the ground situation of each case. At the same time I am of the view that it is part of administrative policy of the Government to lay down criteria in the matter of fixation of seniority. On careful perusal of this Court's direction, it appears to me that it nowhere stated that the entire past service should be counted for seniority. All that this Court had held was that past services cannot be wiped out and that the competent authority »must consider the past services for the purpose of seniority and all other benefits. I am of the view that it is not for this Court to lay down the actual criteria for fixation of seniority. It is the duty of the State to do so. In terms of notification dated 16.1.1989 as I have quoted above the past services “would not count for seniority.” That means seniority would be reckoned only from the date of provincialisation. This was held to be bad and as such the Government was directed to consider the past services for seniority and other services benefits. What kind of formula should be evolve should, in my view, be left to the competent authority of the State of Mizoram. On careful perusal of the impugned Rules of 1991, it cannot be said that the petitioner has not been allowed benefit of seniority for the service rendered before provincialisation. What kind of formula should be evolve should, in my view, be left to the competent authority of the State of Mizoram. On careful perusal of the impugned Rules of 1991, it cannot be said that the petitioner has not been allowed benefit of seniority for the service rendered before provincialisation. The only difference is that the entire period rendered by the petitioner cannot be taken for the purpose of fixation of inter se seniority in view of the averment made in Government affidavit. As averred in the Government affidavit, when the petitioner joined service as Lecturer he had not even passed the MA Examination. I can clearly imagine how one enters into Government service. One has to go through various procedure of selection through the State Service Commission. It is not so in case of appointment in private college. At the same time, unless provincialised one who serves in a private college would never be entitled to any retirement benefit. Therefore, it appears to me that it will not be equitable to equate the entire length of service of a Lecturer in a private college with that of a Government college in view of the circumstances under which they entered into service initially. 9. In AIR 1982 SC 917 it was held that “No scheme governing matters can be full proof and some section or the other of employees is bound to feel aggrieved on the score of its expectations being falsified or remaining to be fulfilled. But the fact that the scheme does not satisfy the expectations of every employee does not render it arbitrary, irrational, perverse or malafide.” It appears the impugned rules were framed in order to resolve the various problems including fixation of inter se seniority by taking into consideration all the factors that were prevalent in private college vis-a-vis the Government colleges. It appears in the circumstances of the present case the petitioner cannot be said to have been treated unfairly. It also appears to me that if the Rules were not made applicable retrospectively to govern the service conditions of persons working in Lunglei Private College, there would have been discrimination. As I have stated above, the Rules of 1991 have been applied to all the four provincialised colleges squarely. As such in my view no case of discrimination has been made out. 10. As I have stated above, the Rules of 1991 have been applied to all the four provincialised colleges squarely. As such in my view no case of discrimination has been made out. 10. The order passed by the Hon'ble Supreme Court on 15.4.1991 clearly mentions that “new rules have been framed and also notified with effect from 19.10.76 and in that view the grievance of the writ petitioners, who are respondents before this Court, must be deemed to have disappeared.” In view of this order, it appears to me that whatever had happened in the past prior to the direction given by this Court on 5.9.1989 disappeared. As we have noticed above the Supreme Court stated that the petitioner could challenge the new Rules, if so advised by filing a fresh case. This is what has been done by the petitioner. 11. On careful perusal of the order passed by the Supreme Court it appears to me that no case of contempt can be said to have been made out. Even assuming that the competent authority did not take prompt action, in the peculiar facts and circumstances of the nature of this case I do not doubt the bonafide of the competent authority to resolve the point at issue. 12. In the result, in the light of the discussions that I have made above, this writ petition (Civil Rule No.28 of 1992) is dismissed., In view of my above findings Contempt Petition 5 of 1990 is also closed. The State of Mizoram shall prepare inter se seniority at the earliest and at any rate not later than 3 (three) months from today. I would also make it clear that any promotions issued after the direction was given by this Court on 5.9.1989 shall be subject to the inter se seniority to be prepared by the competent authority within the aforesaid period. I pass no order as to costs. This writ petition is disposed of.