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1999 DIGILAW 394 (GAU)

Lalzidinga Sail v. State of Mizoram

1999-12-08

D.BISWAS

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The petitioner is an officer in the Mizoram Khadi and Village Industries Board. At the time of institution of this petition, he was working as Deputy Director in die Khadi and Village Industries Commission of Govt of India on deputation. The petitioner has filed this petition praying for issue of a writ directing the State of Mizoram to give effect to the recommendation of the Mizoram Public Service Commission dated 10.3.97 (Annexure XH) and to appoint the petitioner in the Junior Grade of Mizoram Civil Service w.e.f. 3.7.97. 2. I have heard Mr. George Raju, learned counsel for the writ petitioner as well as Mr. Vaiphei, learned Assistant Advocate General. 3. It would be convenient to clear the facts before the embark upon the discussion as to whether the petition has enforceable right. On 20.12.95, the Mizoram Public Service Commission notified that 2 (two) posts in Junior Grade of Mizoram Civil Service are to be filled up by absorption of Gazetted officers of various departments after selection. Officers interested were also called upon to submit their applications and particulars on or before 19.1.96. But, thereafter, in suppression of this notification, another advertisement was issued on 17.11.96 clarifying that 2 (two) posts in Junior Grade of Mizoram Civil Service would be filled up by selection from amongst the Gazetted officers working in substantive capacity in connection with the affairs of the State having served for a period of five years. The petitioner, whose name was forwarded to the Commission, was selected by Service Commission along with 4 (four) others. The recommendation for induction of the petitioner along with others was made vide letter dated 10.3.97 which reads as follows : “In inviting a reference to your letter No. cited above and the subject thereon, I am directed to send herewith 3 names of AO (NG) and 2 names of other Departmental Officers from the panel list maintained by the Commission for induction into Junior Grade of Mizoram Civil Service as below in order of their respective merit. AO(NG):l.K.Sanghmma Kauchhum 2. RS Lalzemlians. 3.C.Laizarliana Other departmental officers 1. Lalzidinga Sailo, Executive Officer, KVI Board, MGVIB. 2. Laihuacbhuana, Employment Officer, District Employment Office Labour and Employment Department.” 4. It would appear that the name of the petitioner has been shown as a candidate selected from 'other department'. AO(NG):l.K.Sanghmma Kauchhum 2. RS Lalzemlians. 3.C.Laizarliana Other departmental officers 1. Lalzidinga Sailo, Executive Officer, KVI Board, MGVIB. 2. Laihuacbhuana, Employment Officer, District Employment Office Labour and Employment Department.” 4. It would appear that the name of the petitioner has been shown as a candidate selected from 'other department'. It is obvious from the notification issued by the Commission that particulars/applications were called for filling up 2 (two) vacancies in the Junior Grade of Mizoram Civil Service from the substantive Gazetted officers having five years of continuous service. The State Govt appointed Pu Laihuachhuana, Employment Officer of the Labour and Employment Department and another to the exclusion of the petitioner and two others/The recommendation made by the Commission does not appear to be in keeping with the number of posts notified and candidates recommended have been classified into two groups without indicating their respective position on merit. However, this inconsistent recommendation by the Commission is of no significance. The State raised altogether a different question of law. The learned Assistant Advocate General referring to the affidavit filed by the State, submitted that the writ petitioner is not a Gazetted officer of the State Govt and he, being an officer of the Mizoram Khadi and Village Industries Board, is not eligible for consideration for induction to the Mizoram Civil Service. 5. Rule 7 (b) of Mizoram Civil Service (Amendment) Rules, 1992 provides for absorption of the Gazetted officer in substantive capacity having five years of service. It further appears from para 4 of the affidavit-in-opposition that writ petitioner was appointed by Mizoram Khadi and Village Industries Board in accordance with the provisions of section 14 of the Mizoram Khadi and Village Industries Board Act, 1982. Remuneration, allowances and other service condition of the petitioner are determined by the Board. It is further averred that the post held by the petitioner was also created by the Board in exercise of the power conferred under Regulation 5 of Mizoram Khadi and Village Industries Board Regulations, 1988. A Selection Committee was also constituted by the Board under Regulation 6 of the said Regulations, 1988 for recruitment of the officers in the Board. Besides the posts created by the Board are not pensionable and the holders thereof are not entitled to any benefit under the Pension Scheme/Rules of the State Govt. A Selection Committee was also constituted by the Board under Regulation 6 of the said Regulations, 1988 for recruitment of the officers in the Board. Besides the posts created by the Board are not pensionable and the holders thereof are not entitled to any benefit under the Pension Scheme/Rules of the State Govt. The posts created by the Board do not have Gazetted status and the appointment of the officers of the Board are also not notified in the Official Gazette. 6. After going through the above statement made on oath and the provisions of the Act and Regulation referred to above, this Court is of the opinion that the petitioner is not an employee/officer of the State Govt. Whether an employee/ officer is holding the office under any Govt will depend upon the following tests: (1) Whether Govt makes the appointment; (2) Whether Govt has right to remove or dismiss the holder; (3) Whether Govt pays remuneration; (4) What are the functions of the holder; and (5) Does the Govt exercise any control over the performance of these functions? 7. The said tests have been prescribed by the Supreme Court for determining the question whether an office is an office under the Govt and whether it is an office of profit. In Shivamurthy Swami Inamdar vs. Agadi Sanganna Andanappa, (1971) 3 SCC 870 , in Bihari Lal Deb Roy ( AIR 1984 SC 385 ) and in Satrucherle Chandrashakar Raju, (1992) 2 SCC 404, the ratio above has been elaborated. I have also taken into consideration the decisions rendered in Dr. SL Agarwal vs. General Manager, Hindustan Steel Ltd, ( AIR 1970 SC 1150 ); Kripasankar Chatterjee vs. Gurudas Chatterjee & others, ( AIR 1995 SC 2152 ). In Dr. SL Agarwal (supra), the Supreme Court held that Hindustan Steel Ltd, which is not a corporation is not a Department of the Govt and the employee of the corporation are not holders of civil posts under the State. Applying the same ratio, it can be said that the Board constituted by the Govt has its separate entity and is not a Department of the Govt. 8. In the instant case, it is evident that power to create post, to make appointment and to determine the question of remuneration are vested with the Board. Applying the same ratio, it can be said that the Board constituted by the Govt has its separate entity and is not a Department of the Govt. 8. In the instant case, it is evident that power to create post, to make appointment and to determine the question of remuneration are vested with the Board. Considering different provisions of the Act and the Regulations, this Court is unable to conclude that the petitioner is a Gazetted officer working under the State Govt. That being so, the petitioner is not eligible for appointment to Mizoram Civil Service. Therefore, petition for issue of a writ calling upon the respondents to appoint him in the said post can not be entertained. 9. In the result, the petition is dismissed. No order as to costs.