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Gauhati High Court · body

2000 DIGILAW 205 (GAU)

C. K. Dutta v. State of Mizoram

2000-06-09

P.C.PHUKAN

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I have heard Mr. G. Raju, learned counsel for the petitioners, Mr. N. Sailo, learned Govt Advocate for the State-respondent Nos 1 to 5 and Mr. C. Lalramzauva, learned counsel for the private respondent No.6. I have also considered the records of the case. 2. Both the petitioners are diploma holders in Mechanical Engineering and are presently serving under the Mechanical Wing of the Public Works Cadre as Sub Divisional Officers in the Mizoram Engineering Service (MES in short). The respondent No.6 is also a diploma holder in Mechanical Engineering and is presently serving under the Power and Electricity Cadre as Executive Engineer in MES. 3. The Mizoram Engineering Service Rules, 1995 (MES Rules in short) came into force with effect from 20.10.95. The persons to whom these Rules apply include those appointed in the Public Works Department and the Power Electricity Department as per Rule 2 thereof. As per Rule 4 (2), the MES consists of : (i) Public Works Cadre - which includes (b) Mechanical Wing including Mechanical Engineers under Public Works Department and Power and Electricity Department. (ii) Power and Electricity Cadre which includes all posts of electrical/electronics Engineers under Power and Electricity Department and Public Works Department." 4. As per Rule 4 (3), all Mechanical Engineers recruited under Public Works Department/Power and Electricity Department prior to the commencement of the MES Rules, 1995 shall stand allocated to the Public Works Cadre from the commencement of these Rules. Similarly, all Electrical Engineers recruited under the Power and Electricity Department/Public Works Department prior to commence­ment of these Rules shall stand allocated to the Power and Electricity Department. Rule 4 (5) provides that a member of one cadre shall not be appointed or have any right for appointment or promotion to any post included in any other cadre. In short, appointments/promotions are restricted to one's own respective cadre. 5. As per Rule 4 (3), the two petitioners, who were recruited as Mechanical Engineers under the Public Works Department prior to the commencement of MES Rules, 1995 stood allocated to the Public Works Cadre. Similarly, the respondent No.6, who was recruited as Electrical Engineer, though a diploma holder in Mechanical Engineering, under the Power and Electricity Department prior to the commencement of these Rules stood allocated to the Power and Electricity Cadre. 6. Similarly, the respondent No.6, who was recruited as Electrical Engineer, though a diploma holder in Mechanical Engineering, under the Power and Electricity Department prior to the commencement of these Rules stood allocated to the Power and Electricity Cadre. 6. The Govt of Mizoram by a notification dated 19.2.96 (Annexure P5) ordered absorption of 89 Electrical Engineers including the respondent No.6 serving under the Power and Electricity Department in their respective Engineering Grades for the constitution of the Engineering Service in its Power and Electricity Cadre. By another notification dated 24.9.97 (Annexure P6) the respondent No.6 was promoted to the post of Engineering Grade IV (Executive Engineer) in the Power and Electricity Department. Then in the Public Works Department, the notification dated 28.11.97 (Annexure P7) provisionally fixed the inter-se seniority of Engineers Grade V of Public Works Cadre in Mechanical Wing in respect of graduate and non-graduate Engineers placing the petitioner No.l and No.2 in Sl. No.l and Sl. No.2 respectively in Statement B of Non-graduate Engineers. 7. The writ petitioners have prayed for setting aside the above mentioned notifications (Annexures P5, P6 and P7) and also for inclusion of the name of the respondent No.6 in the Mechanical Wing of the Public Works Cadre fixing his seniority at the appropriate place in the said Cadre. 8. The petitioners have made prayer as aforesaid, for, according to them, the respondent No.6. a diploma holder in Mechanical Engineering, recruited under Power and Electricity Department prior to the commencement of the MES Rules, 1995 should have been allocated to the Mechanical Wing of the Public Works Cadre, just as they, being diploma holders in Mechanical Engineering, recruited under the Public Works Department prior to the commencement of those Rules stood allocated to the Mechanical Wing of the Public Works Cadre as per Rule 4 (3). This overlooks the fact that the respondent No.6, though a diploma holder in Mechanical Engineering, was recruited as Electrical Engineer and continued to serve as such under the Power and Electricity Department prior to the commencement of the Rules. 9. In his affidavit-in-opposition, the respondent No.6 states that he was appointed as Subordinate Engineer (Electrical) by Assam State Electricity Board (ASEB in short) vide CE ASEB's order No.85 dated 15.2.72. That though he was posted in Mizoram, he was under ASEB till 1975 and Mizoram" in the meantime attained the status of Union Territory in 1972. 9. In his affidavit-in-opposition, the respondent No.6 states that he was appointed as Subordinate Engineer (Electrical) by Assam State Electricity Board (ASEB in short) vide CE ASEB's order No.85 dated 15.2.72. That though he was posted in Mizoram, he was under ASEB till 1975 and Mizoram" in the meantime attained the status of Union Territory in 1972. His services were allocated to the Govt of Mizoram in 1984 and he was posted in the Power and Electricity Department of the Mizoram Govt. That he was subsequently promoted to the post of Assistant Engineer (Electrical), his service as such was regularised and confirmed and throughout his service he has been in the Power and Electricity Department as an Electrical Engineer and not as a Mechanical Engineer. 10. In the affidavit-in-opposition filed on behalf of the State-respondents, the Under Secretary to the Govt of Mizoram, Power and Electricity Department, states that the respondent No.6 was initially appointed as Engineering Subordinate (Electrical) by the ASEB and the employees of ASEB posted in Mizoram including the respondent No.6 were subsequently absorbed by the Govt of Mizoram and the respondent No.6 was allocated to the Power and Electricity Cadre on commencement of the MES Rules, 1995. 11. It is true that the petitioners as well as the respondent No.6 are diploma holders in Mechanical Engineering. Similarity, however, does not go further. The petitioners were appointed as Subordinate Engineers (Mechanical) and continued as such till the commencement of the MES Rules, 1995. The respondent No.6 was appointed as Subordinate Engineer (Electrical) and continued as such till the commencement of the said Rules, though he is a diploma holder in Mechanical Engineering. There are instance of persons with degree in Mechanical Engineering being appointed in to serve as IAS Officers and not as Mechanical Engineers. Whether a diploma holder in Mechanical Engineering should have been appointed as an Electrical Engineer is another matter and is beyond the scope of the present writ petition. The fact remains that the respondent No.6 was appointed as Subordinate Engineer (Electrical) as far back as 1972 and he continued to serve as Electrical Engineer till the commencement of the aforesaid Rules and there is nothing on record to show that his appointment as such was ever challenged. The fact remains that the respondent No.6 was appointed as Subordinate Engineer (Electrical) as far back as 1972 and he continued to serve as Electrical Engineer till the commencement of the aforesaid Rules and there is nothing on record to show that his appointment as such was ever challenged. What is important for deciding as to which cadre the respondent No.6 ought to have been included is not his educational qualification but his appointment as Electrical Engineer and continuance as such till the commencement of the aforesaid Rules. 12. In view of the above, it must be held that the respondent No.6 was rightly allocated to the Power and Electricity Cadre. I, therefore, reject the petitioners prayer for inclusion of the name of the respondent No.6 in the Mechanical Wing of the Public Works Cadre. Even if his name is so included and he is placed below the petitioners in the seniority list of the Public Works Cadre, the petitioners will not gain in any way; if he is placed above them, they will only be adversely affected. In either case, the petitioners will not gain in any way. On the other hand, the continuance of the respondent No.6 in the Power and Electricity Cadre will not adversely affect the petitioner. For, as per Rule 4 (5) of the aforesaid Rules, a member of one cadre shall not be appointed or have any right for appointment or promotion to any post included in any other Cadre. Thus the petitioners have no locus standi to challenge the notification dated 24.9.97 (Annexure P6) promoting the respondent No.6 to the post of Executive Engineer in the Power and Electricity Cadre. I have already rejected the petitioner's prayer for inclusion of the name of the respondent No.6 in the Mechanical Wing of the Public Works Cadre. Hence, there is no question of setting aside the notification dated 19.2.96 (Annexure P5) absorbing the respondent No.6 in the Power and Electricity Cadre and the notification dated 28.11.87 (Annexure P7) provisionally fixing the inter-se seniority of the Engineers in the Mechanical Wing of the Public Works Cadre, 13. There is absolutely no merit in this writ petition. The same is dismissed with costs quantified at Rs.1,000/-.