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Gauhati High Court · body

1995 DIGILAW 214 (GAU)

Pu C. Lalawia v. State of Mizoram

1995-09-06

J.N.SARMA

body1995
The brief facts are quoted from the list of dates furnished by the petitioner in this writ application. 2. In the year 1975 the Govt. of Mizoram enacted Mizoram Board of School Education Act, 1975. Thereafter in the year 1977 the Govt of Mizoram framed the Mizoram Board of School Education (Appointment of President, Secretary and Controller of Examination) Rules. 1977. On 1.6.89 the petitioner No. 1 was appointed as Secretary of the Mizoram Board of School Education vide notification dated 25.9.89. On 1.6.89 the petitioner No.2 was appointed as Controller of Examination vide notification dated 22.8.89. On 1.11.89 the petitioner No.3 was appointed as Assistant Controller of Examination of the Board. 3. On 19.2.93 the petitioner Nos.l, 2 and 3 were suspended by Govt. of Mizoram and thereafter their suspension order was revoked vide order dated 4.10.93. On 5.10.93 they were allocated duties by the Board. On 11.10.93 the Mizoram Board of School Education ordered petitioner No.l to act as Vice President, petitioner No.2 as Deputy Secretary and petitioner No.3 as Academic Officer i/c Hindi. On 19.10.93 the respondent 3, i.e. the Mizoram Board of School Education by notification dated 19.10.93 made the Central Civil Services (Classification Control and Appeal) Rules, 1965 applicable to the Mizoram Board of School Education with retrospective effect. On 16.2.90 the petitioner No.l joined as Secretary of the Board and his appointment and joining was confirmed and approved by the 23rd meeting of the MBSE held on 31.7.90. On 31.10.87 the petitioner No.l was deputed to the NEHU in public interest vide order dated 31.10.87. On 27.9.89 the petitioner No.2 was duly recommended for regular appointment vide MBSE's letter dated 30.4.90 and the same was published in Mizoram Gazette Vol XIX Issue No. 18 dated 4.5.90. On 12.3.93 Hmingthahsiama confessed the guilt of stealing of question papers in connection with Aizwal PS CaseNo. 132/93/GRNo. 174/93 on 12.3.93 and in this connection statement of the wife of the accused Baikthansangi Zothantlunga and one Rozami were recorded by the Magistrate. On 28.10.87 the petitioner No.2 was an Assistant Controller of Examination and one Mr. Peter Lianhlea the then Secretary of MBSE had taken over the charge of Controller of Examination vide order dated 28.10.87. On 12.7.94 the accused has been convicted by the learned First Class Magistrate, Aizawl vide order dated 19.7.94, 4. On 28.10.87 the petitioner No.2 was an Assistant Controller of Examination and one Mr. Peter Lianhlea the then Secretary of MBSE had taken over the charge of Controller of Examination vide order dated 28.10.87. On 12.7.94 the accused has been convicted by the learned First Class Magistrate, Aizawl vide order dated 19.7.94, 4. This application has been filed praying the following reliefs - (1) issue of a Mandamus to quash the impugned orders dated 5.10.93,11.10.93 (Annexure X and XI) and the last part of orders dated 4.10.93 so far it relates to the treatment of the period of suspension vide Annexure IV, V and VI; (2) to quash the notification dated 19.10.93 (Annexure XII) so far it relates to retrospective effect to the Central Civil Services (Classification Control and Appeal) Rules, 1965 to the employees of the Board; (3) issue direction directing the respondents to allow the petitioners to do their duties as Secretary, Controller of Examination and Asstt. Controller of Examination of the Board. 5. Annexures IV, V, VI, X, XI and XII to the writ application are quoted below: " Whereas a disciplinary proceeding against Pu C. Lalawia, Secretary, MBES is contemplated. Now, therefore the Governor of Mizoram in exercise of power conferred by sub- rule (1) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 hereby places the said Pu C.Lalawia, Secretary, MBSE under suspension with immediate effect. It is further ordered that during the period of this order shall remain in force the Headquarter of Pu C.Lalawia, Secretary, MBSE shall be Aizawl and the said Pu C. Lalawia, Secretary, MBSE shall not leave the Headquarters without obtaining the previous permission of the undersigned. During the period of suspension Pu C.Lalawia, Secretary, MBSE shall be paid subsistence allowances at an amount equal to the leave salary on half average pay, and in addition Dearness Allowance as admissible on the basis of such salary. (Annexure IV)" "Whereas a disciplinary proceeding against Pu P. Thanhawala, Controller of Examination, MBSE is contemplated. Now, therefore the Governor of Mizoram in exercise of power conferred by sub-rule (1) Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 hereby places the said Pu P.Thanhawala, Controller of Examination, MBSE under suspension with immediate effect. (Annexure IV)" "Whereas a disciplinary proceeding against Pu P. Thanhawala, Controller of Examination, MBSE is contemplated. Now, therefore the Governor of Mizoram in exercise of power conferred by sub-rule (1) Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 hereby places the said Pu P.Thanhawala, Controller of Examination, MBSE under suspension with immediate effect. It is further ordered that during the period of this order shall remain in force, the headquarters of Pu Thanhawala, Controller of Examination, MBSE shall be Aizawl, and the said Pu P.Thanhawala, Controller of Examination, MBSE shall not leave the headquarter without obtaining the previous of the undersigned. During the period of suspension Pu P.Thanhawala, Controller of Examonation, MBSE shall be paid subsistence allowances at an amount equal to the leave salary on average pay, and in addition Dearness Allowances as admissible on the basis of such salary (Annexure V)" "Whereas a disciplinary proceeding against Pu S.Lalthanghuta, Assistant Controller of Examination, MBSE is contemplated. Now, therefore the Governor of Mizoram in exercise of powers conferred by sub-rule (1) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 hereby places the said Pu S. Lalthanghuta Assistant Controller of Examination, MBSE under suspension with immediate effect. It is further ordered that during the period that this order shall remain in force, the headquarter of Pu S.Lalthanghuta, Assistant Controller of Examination, MBSE shall be Aizawl and the said Pu S. Lalthanghutha Assistant Controller of Examination, MBSE shall not leave the headquarters without obtaining the previous permission of the undersigned. During the period of suspension Pu S.Lalthangutha, Assistant Controller of Examination, MBSE shall be paid subsistence allowances at an amount equal to leave salary on half average pay, and in addition Dearnes Allowances as admissible on the basis on salary. (Annexure VI)" "Sub: Temporary arrangement for allocation of duties amongst officers of MBSE. Sir, Consequent upon reinstatement of Pu C. Lalawia Secretary, Pu P.Thanhawala, Controller of Examination and Pu S.Lalthanghuta, Assistant Controller of Examination the following arrangement may be made for allocation of duties and responsibilities amongst officer of the MBSE :- (1) Pu C. Lalawia, Secretary may assist the President as Vice-President. (2) Pu P.Thanhawala, Controller of Examination may function as Deputy Secretary. (3) Pu S. Lalthanghuta, Assistant Controller of Examination may function as Academic Officer i/c Hindi. (4) Pu Bhudhi Raja may continue as Secretary on his grade pay. (2) Pu P.Thanhawala, Controller of Examination may function as Deputy Secretary. (3) Pu S. Lalthanghuta, Assistant Controller of Examination may function as Academic Officer i/c Hindi. (4) Pu Bhudhi Raja may continue as Secretary on his grade pay. (5) Pu R. Laltawnga may also continue as Controller of Examination in addition to his own duties. The above arrangement may continue until further orders and necessary office orders may be issued by you accordingly. (Annexure X)" "In pursuance of Government of Mizoram, Education, Human Resources DepartmentLetterNo.C23017/51/93-EDNdated the 5th October,1993,the President, Mizoram Board of School Education is pleased to make allocation of duties and responsibilities amongst officers of the Mizoram Board of School Education as follows: (1) Pu C. Lalawia, Secretary will assist the President as Vice-President. (2) Pu P.Thanhawala, Controller of Examination will function as Deputy Secretary. (3) Pu S.Lalthanghuta, Assistant Controller of Examination will function as Academic Officer i/c Hindi. (4) Pu Budhi Raja will continue as Secretary on his grade pay. (5) Pu R. Laltawnga will also continue as Controller of Examination in addition to his own duties. (Annexure XI)" "The President, Mizoram Board of School Education, in exercise of the power conferred by sub-section (6) of section 15 of the Mizoram Board of School Education Act, 1975 is pleased to notify for the information of all concerned that the following rules, as applicable to the employees of the Govt. of Mizoram, shall apply, on analogous basis, to all the employees of the Mizoram Board of School Education and from the date of Mizoram Board of School Education Act, 1975 came into force and until the rules are repealed or substituted by the Regulations framed by the Board of regulate the service of the employees of the Board. (1) The CCS (CCA) Rules,1965. (2) The CCS (Conduct) Rules, 1964. (3) The CCS (Leave) Rules,1972. (4) The CCS (Temporary Service) Rules, 1965. (5) The Fundamental Rules(F.R.) and the Subsidiary Rules (S.R.). (Annexure XII)" 6.1 have heard Mr. BR Dey, learned counsel for the petitioner and Mr. KP Pathak, learned counsel for the respondents. 7. Mr. (1) The CCS (CCA) Rules,1965. (2) The CCS (Conduct) Rules, 1964. (3) The CCS (Leave) Rules,1972. (4) The CCS (Temporary Service) Rules, 1965. (5) The Fundamental Rules(F.R.) and the Subsidiary Rules (S.R.). (Annexure XII)" 6.1 have heard Mr. BR Dey, learned counsel for the petitioner and Mr. KP Pathak, learned counsel for the respondents. 7. Mr. Dey submits as follows : (1) That the petitioner hold statutory posts and as soon as the suspension order was revoked, they were entitled to get back their statutory post and the works to be done by the detailed in the statute and the Govt had no power to ask them to do some works not provided in the statute. (2) That earlier to Annexure XI there was no Rule authorising the Board to place its employee under suspension and in view of that matter though the employer may have the inherent right to suspend an employee, the employee shall be entitled to full wages. The employer has a right not to offer work, but the full wages for that period must be paid. (3) That no service rule can be enforced with retrospective effect. 8. In support of his contention Mr. Dey places reliance on the following provisions of Mizoram Board of School Education Act, 1975. He draws my attention to section 13. In this connection section 13 (4) to the Act is relevant and the same is quoted below : "13. (4) The Government shall have the right to address the Board with reference to anything conducted or done by the Board and to communicate its view on any matter with which the Board is concerned and the Board shall report to the Government such action, if any, as it proposes to take or has taken upon the communication of the Government." 9. He also draws my attention to section 14. Section 14 provides that the Secretary and the Controller of Examination are statutory posts and the function of these posts are detailed in sections 17 and 18 of the Act. They are quoted below: "Section 17. (1): The Secretary and the Controller of Examination shall be whole time officer and shall be appointed by the Government on such terms and conditions as it may decide. They are quoted below: "Section 17. (1): The Secretary and the Controller of Examination shall be whole time officer and shall be appointed by the Government on such terms and conditions as it may decide. (2) The Secretary shall, (i) subject to the control of the Board, be the Chief Administrative Officer of the Board, (ii) subject to the control of the President, be responsible for seeing that the order of the Board are carried out; (iii) be empowered to enter into all contracts for and on behalf of the Board. (3) The Secretary shall be responsible for seeing that all moneys of the Board are expended for the purpose for which they are granted are allotted. (4) The Secretary shall prepare the annual statements of accounts and budget estimates. (5) The Secretary shall exercise such other powers as may be prescribed by regulations. (6) The Secretary shall be responsible for keeping the minutes of the Board meeting. (7) The Secretary and the Controller of Examination shall be entitled to be present and to speak at any meeting of the Board, but shall not be entitled to vote thereat. Section 18 : Under the overall control of the Board, the Controller of Examination shall be responsible for conduct of all examinations of the Board, issue of marksheets on payment of prescribed fees as also the certificate of the Board to successful candidates and shall for the effective performance of this duties, be delegated with adequate power by the Board." 10. On the other hand, Mr.KP Pathak, learned counsel appearing for respondents points out that the petitioner No. 1 was guilty of manipulating mark sheets of 32 students including that of his son and it was for that reason only that the petitioner No. 1 was not allotted to do work of examinations. Regarding the Controller of Examinations, the allegation was that during his tenure there were leakage of question papers and the question papers were available for purchase in the market at Aizawl and for that reason the Controller of Examinations had to be removed and he was allotted different works after revocation of the order of suspension. Mr. Regarding the Controller of Examinations, the allegation was that during his tenure there were leakage of question papers and the question papers were available for purchase in the market at Aizawl and for that reason the Controller of Examinations had to be removed and he was allotted different works after revocation of the order of suspension. Mr. Pathak draws my attention to the charge sheet issued against the petitioner Nos.l and 2 and against petitioner No.3 there was a confidential report by the Committee and on the basis of that report of the Committee they had to be allotted different works. However, Mr. Pathak is not in a position to say what is the stage of the departmental enquiry as on today. Be that as it may, the question which is relevent in the case is that whether the action of the authority in allotting different works than the works mentioned in the statute to the petitioner Nos. 1 and 2 can be supported. 11. In deciding this matter we must bear in mind the public interest involved in it as the same relates to a future of generation and the future of a generation cannot be allowed to be spoiled by the action of these three bureaucrats if the allegations made against these bureaucrates are correct. Whether it is correct or not I am not deciding that aspect to the matter at this stage as there is no necessity to decide it as it is already a subject matter of a departmental proceeding. A bare persual of section 13(4) which has been quoted above will show that Govt. has right to address the Board with reference to anything conducted or done by the Board and communicate its view on any matter with which the Board is concerned and the Board shall report to the Govt. such action if any, as proposes to take or has taken upon the communication of the Govt. So, in view of that matter it must be held that the Govt. had the right to address the Board to allot different works to these petitioners considering the gravity of the matter and no infirmity and/or illegality can be found with it. In this connection Mr. Dey places reliance on AIR 1988 SC 78 (PK Chinnasamy vs. Govt. So, in view of that matter it must be held that the Govt. had the right to address the Board to allot different works to these petitioners considering the gravity of the matter and no infirmity and/or illegality can be found with it. In this connection Mr. Dey places reliance on AIR 1988 SC 78 (PK Chinnasamy vs. Govt. of Tamilnadu & others) and he particularly relies on para 4 of the judgment wherein the Supreme Court pointed out as follows: " In a democratic polity as ours, the bureaucracy works as pivot for running the administration. So far as the State is concerned, matters of policy and the ultimate responsibility for running the administration is obviously of the apex body - the Council of Ministers and the Executive Head - the Governor. It cannot be lost sight of that every public officer is a trustee and in respect of the office he holds and the salary and other benefits which he draws, he is obliged to render appropriate service to the State. The scheme postulates that every public officer has to be given some posting commensurate to his status and circumstances should be so created that he would be functioning so as to render commensurate service in lieu of the benefits received by him from the State. If an officer does not behave as required of him under the law he is certainly liable to be punished in accordance with law but it would ordinarily not be appropriate to continue an officer against a post and provide no work to him and yet pay him out of the consolidated fund. It is with this view that we had called upon the respondent -Government to give the appellant a proper posting and extract work from him. Since the State Government has not done the needful, it has become necessary for the Court to interfere. Ordinarily in a case of this type, the Court would have no role to play." 12. That was a case where the appellant before the Supreme Court was appointed as Assistant Engineer and has confirmed in that post and he was not given appropriate work commensurate to his status and in that facts and circumstances of the case this law was laid down by the Supreme Court. The facts of the present case are different as will be evident from the facts indicated above. The facts of the present case are different as will be evident from the facts indicated above. Here is a case where these three petitioners had to be dis-associated from the works of examination in view of their past conduct. The authority is expected to maintain the probity and fairness in the field of examination and if this is not done, the whole confidence in the system of examination shall be shattered and in order to avoid this steps were taken and a bare perusal of the impugned order will show that it was done/resorted to as a temporary measure. The Court is not expected to enforce the letter of laws without looking to the background or without looking to the prevalent situation. If this is not done, instead of doing justice it will cause injustice and if such an order is passed that will amount to chaos which the Court cannot resort to. Accordingly the first part of the contention of Mr.Dey shall stand rejected. 13. The next question is that whether the Central Civil Service (Classification, Control and Appeal) Rules, 1965 can be enforced to the employee of the Board from a back date or retrospectively. This can not be done by authority. Service Rules can be enfroced from a prospective date and not from a retrospective date. In view of the matter, during the period of suspension these three petitioners shall be entitled to full wages, That part of the relief is granted to the petitioners. With regard to other claims/prayers shall stand rejected. 14. With the above directions and observations this writ application stand disposed of.