Research › Search › Judgment

Gauhati High Court · body

2002 DIGILAW 287 (GAU)

B. Sangkhumi v. State of Mizoram

2002-06-28

P.C.PHUKAN

body2002
P.C. PHUKAN, J.— I have heard Mr C. Lalramzauva, learned counsel for the petitioners and Mr N. Sailo, learned Govt. Advocate, Mizoram, appearing for the State respondent Nos. 1,2 and 3. None appeared for the private respondents Nos. 4 to 12 though notices were duly served on them. 2. The petitioner No. 1 was initially appointed as Lecturer in Govt. College, Aizawl vide notification dated 26.7.1974 (Anriexure-A/1) and is currently holding the post of Joint Director (Technical) in the Directorate of Higher Technical Education, Govt. of Mizoram. The petitioner No. 2 was initially appointed as Lecturer in Govt. Graduate Teachers' Training Institute, Aizawl, vide notification dated 10.3.1975 (Annexure-A/ 4) and is currently holding the post of Principal, College of Teachers' Education, Aizawl. The petitioner No. 3 died during the pendency of this writ petition and his name has been struck off. The petitioner No. 4 was initially appointed as Lecturer in Pachhunga University Govt. College, Aizawl as substitute vide notification dated 6.7.1976 (Annexure-A/8) and is currently holding the post of Vice-Principal, College of Teachers' Education, Aizawl. 3. The respondent Nos. 4 to 12 were initially appointed as Lecturers in Lunglei Name Respondent no. Date of appointment Mr. J.S. Pandey 4 1.3.1968 Mr.VIZuala 5 25.11.1968 Mrs. S. Pandey 9 5.9.1969 Mr. LT. Muana 7 27.8.1970 Mr. V. Suakbuanga 8 5.7.1972 Mr.VJ.Lalzuala 9 1.2.1974 Mr.A.K.Das 10 5.10.1974 Mr. Hrangdula 11 10.3.1975 Mrs. L.N. Tluangi 12 19.3.1975 4. By notification (Annexure-A/11) the provincialised Lunglei College with effect from 1.12.76. By a notification dated 14.1.77 (Annexure-A/12), respondent Nos. 4 and 6 to 12 were appointed as Lecturers in the provincialised Lunglei College with effect from 1.12.76, and by another notification dated 13.1.77 (Annexure-A/ 13) respondent No. 5 was similarly appointed with effect from the same date. 5. Since the notification dated 4.1.77 provincilaising Lunglei College did not provide for counting of past service of the teachers of the said College, the State Government treated the private respondents as freshly appointed in Govt. service with effect from 1.12.76 and placed them below the petitioner No. 1. (No. 2 & 1) placed in a separate seniority list for College of Teachers' Education), No. 2 and No. 3 in the provisional inter-se-seniority list vide notification dated 20.5.88 (Annexure-A/14). 6. Aggrieved by non-counting of their past service for seniority and deprivation of other service benefits, Chhakchhuak Lalthlamuana and seven other teachers of Lunglei College filed Civil Rule Nos. (No. 2 & 1) placed in a separate seniority list for College of Teachers' Education), No. 2 and No. 3 in the provisional inter-se-seniority list vide notification dated 20.5.88 (Annexure-A/14). 6. Aggrieved by non-counting of their past service for seniority and deprivation of other service benefits, Chhakchhuak Lalthlamuana and seven other teachers of Lunglei College filed Civil Rule Nos. 451 to 458 of 1985. A Division Bench of this Court allowed those civil rules by a common judgment and order dated 5.9.89 (Annexure-C/7 to the affidavit-in-opposition filed on behalf of the State respondents). The operative portion thereof reads: "We accordingly direct that the past service rendered by the petitioner as Lecturers before 1.12.76 shall be considered for inter-se-seniority, promotion, pension and other benefits." 7. Alleging non-compliance of the above direction, the petitioners in Civil Rule Nos. 451 to 458 of 1985 filed Contempt Petition No. 22 of 1990. On the other hand, the State Govt. filed Special Leave petition No. 10398 - 405/90A/N against the above judgment and order dated 5.9.89. The Supreme Court dismissed the said S.L.P. treating the same to have become infractions by an order dated 15.4.91. The relevant portion thereof reads: "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 state that the effect of the notification of these rules is that the present special leave petition have become infractions and the new rules, if so advised, the respondents may have to challenge by filing a fresh case." 8. Chhakechhuak Lalthlamuana, a teacher of Lunglei College, filed a fresh case Civil Rule No. 28 of 1992 challenging the new rules, viz., the Mizoram College (Provincialisation) Rules, 1991 (Annexure-A/16) brought into force with effect from 19.10.76 by notification dated 27.3.91 (Anenxure-A/17) on the ground that Rule 5(2) thereof providing for counting only one third of past service (and not entire past service) rendered in the private college for fixation of seniority etc subject to maximum of five years is in violation of this Court's order dated 5.9.89. This Court by a common judgment and order dated 23.8.95 (Anenxure-C/7 to the affidavit-in-opposition) dismissed Civil Rule No. 28 of 1992 and closed the contempt petition No. 5 of 1991. This Court by a common judgment and order dated 23.8.95 (Anenxure-C/7 to the affidavit-in-opposition) dismissed Civil Rule No. 28 of 1992 and closed the contempt petition No. 5 of 1991. The relevant portion thereof reads: "8.... On careful perusal of this Court's direction (contained in order dated 5.9.89), it appears to me that it no-where stated that the entire past service should be counted for seniority. All that this Court had held was that past service cannot be wiped out and the contempt authority must consider the past service 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 the notification dated 16.1.1989 as I have quoted above, the past service 'would not count for seniority'. That means seniority would be reckoned only from the date of provincialisation. This was held to be bad. 12..... 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 promotion 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." 9. In compliance with the above order, the State Govt. issued the following office memorandum dated 20.10.95 (Annexure-A/21):- "In pursuance of the direction of the Hon'ble High Court in Civil Rule No. 28 of 1992 in its judgment dated 28.8.95, the Government of Mizoram is pleased to determine provisionally the inter-se-seniority of Lecturers (Reader/Lecturer Grade/Senior Grade) of the Government College as shown in the enclosed statement." 10. In the above provisional seniority list, the past services of the private respondents to the extent of one-third were counted, and accordingly they were placed at SI. Nos. 5, 6, 7, 9, 11, 13, 14, 15 and 16 respectively while the petitioners were placed at SI Nos. 8, 10, 12 and 17 espectively. Then the State Govt. In the above provisional seniority list, the past services of the private respondents to the extent of one-third were counted, and accordingly they were placed at SI. Nos. 5, 6, 7, 9, 11, 13, 14, 15 and 16 respectively while the petitioners were placed at SI Nos. 8, 10, 12 and 17 espectively. Then the State Govt. issued the following office memorandum dated 19.4.96 (Annexure-A/26) impugned in the instant writ petition: "In supersession of this Departments' O.M. of even No. dated 20.10.95 and 8.1.96 and after due consideration of the representations received in response to this Department's O.M. of even No. dated 3.1.1996, the Governor of Mizoram is pleased to finally fix inter-se-seniority of Lecturers as shown in the enclosed statement." 11. In the above final seniority list also, the past services of the private respondents to the extent of one-third were counted, and accordingly they were placed at SI Nos. 4, 5, 6, 8, 10, 12, 13, 14 and 15 respectively while the petitioners were placed at SI Nos. 7, 9, 11 and 16 respectively. 12. Being aggrieved, the present petitioners have come up before this Court in the instant writ petition for a declaration that the impugned seniority list dated 19.4.96 is ultra vires Rule 5(2) and 5(6) of the Mizoram College (Provincialisation) Rules, 1991, and in the alternative, for striking down the Mizoram College (Provincialisation) (Third Amendment) Rules, 1993, in other words, for striking down Rules 5(2) and 5(6), and the impugned seniority list dated 19.4.96 drawn up in accordance therewith. Sub-Rules (2) and (6) of the Rule 5 read as under:- "(2) One-third of the past service of the teaching and non-teaching staff appointed on regular basis as explained in 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 subject to maximum of 5 years. **** **** **** (6) The inter-se-seniority of the teaching and/ or non-teaching staff of the provincialised college vis-a-vis other teaching and non-teaching employees of the existing Government College shall be determined by the Government on the basis of sub-rule (2) and such available evidence as may be necessary in accordance with the existing rules and Government instructions issued in this regard from time to time." Sub-rule(l) referred to in sub-rule (2) reads: "(1) All existing teaching and non-teaching staff of a college appointed on a regular basis as per provision of Grant-in-aid Rule, 1975 or as per Rule 3 of the Mizoram Aided College Employees Rule, 1990 shall be appointed into Government service from the date of issue of appointments after provincialisation, subject to the following condition, namely...." 13. It is contended on behalf of the petitioners that a conjointed reading of sub-rules (1), (2) and (6) of Rule 5 to show that if the private respondents were appointed as per Grant-in-aid Rules, 1975 or as per Rule 3 of the Mizoram Aided College Employees Rues, 1990, one third of their past service could have been counted for seniority subject to maximum of five years. But Grants-in-aid Rules came into force from 1.3.76 vide notification dated 18.6.76 (Anenxure-A/28) and all the private respondents were appointed before 1.3.76. Hence, they could not have been appointed either under Grants-in-aid-Rules, 1975 or as per the Mizoram Aided College Employees Rules, 1990. Since they were not so appointed, one-third of their past service could not be counted for fixation of their seniority. This contention overlooks that this Court by judgment and order dated 5.9.89 passed in Civil Rule Nos. 451 to 458 of 1985 directed that the past service rendered by the Lecturers of Lunglei College when it was a private College before 1.12.76 shall be considered for their inter-se-seniority, promotion etc. This is so irrespective of whether or not they were appointed as per the Grants-in-aid-Rules, 1975 or as per the Mizoram Aided College Employees Rules, 1990. For, this Court in the said judgment and order has not excluded those who were not so appointed from such consideration. The decision in the above judgment and order dated 5.9.89, no appeal or review having been filed against it, has attained finality and is binding on all concerned. For, this Court in the said judgment and order has not excluded those who were not so appointed from such consideration. The decision in the above judgment and order dated 5.9.89, no appeal or review having been filed against it, has attained finality and is binding on all concerned. Though the present petitioners were not impleaded as respondents in the above civil rule, they could have filed appeal/review with the leave of the Court as they claim to have been affected by the decision in the said judgment and order. They cannot plead ignorance about the said judgment and order, for, O.M. dated 20.10.95 (Annexure-A/21) enclosing therewith the provisional seniority list of Lecturers including the petitioners referred to the said judgment and order, which in turn, referred to this Court judgment and order dated 5.9.89. 14. After framing of the Mizoram College (Provincialisation) Rules, 1991 providing for counting of one-third of past service of teachers rendered in erstwhile private college as qualifying service under the Govt. for the purpose of fixation of seniority subject to maximum of five years, a teacher of Lunglei College provincialised with effect from 1.12.76 filed Civil Rule No. 28 of 1992 assailing the said rules contending that the entire past service (and not only the one-third of past service subject to maximum of five years) should be counted for seniority. And the present writ petitioners have filed the instant writ petition assailing the said rules contending that past service should not be counted at all for seniority, and that the seniority should be reckoned only from the date of provincialisation. By the judgment and order dated 23.8.95 passed in Civil Rule No. 28 of 1992 this Court rejected the contention that the entire past service should be counted for seniority and upheld the impugned rules providing for counting one-third of past service subject to maximum of five years. In para 6 of the additional affidavit-in-opposition filed on behalf of the State respondents, it is stated, "the impugned judgment and order in C.R. No. 28/1992 was delivered on 23.8.95 and the present writ petitioners, although they were not party to the said civil rule could have preferred a writ appeal since their rights and interests were affected. In para 6 of the additional affidavit-in-opposition filed on behalf of the State respondents, it is stated, "the impugned judgment and order in C.R. No. 28/1992 was delivered on 23.8.95 and the present writ petitioners, although they were not party to the said civil rule could have preferred a writ appeal since their rights and interests were affected. However, the petitioners approached this Hon'ble Court through another writ petition on the same issue and therefore the present writ petition is liable to be rejected and dismissed." This contention cannot be brushed aside as of no substance since the present petitioners cannot plead ignorance of this Court's judgment and order dated 23.8.95 passed in Civil Rule No. 28/1992, for, the office memorandum dated 20.10.95 (Annexure-A/21) enclosing therewith the provisional seniority list of lecturers including the present writ petitioners and calling from them objections referred to this Court's aforesaid judgment and order, and the memo portion thereof shows that copies of such office memorandum were sent to all concerned including the present writ petitioners. Leaving aside this aspect of the matter, it is important to note that the impugned rules were made in compliance with this Court's judgment and order dated 5.9.89 (which I have already said attained finality) directing that past services rendered by Lecturers in private college before provincialisation on 1.12.76 shall be considered for seniority etc., leaving it to the State Govt. to determine exactly what period of past service should be counted for seniority. And the State Govt. in its wisdom determined that one-third of the past service subject to maximum of five years should be counted for seniority and made the impugned rules (under Article 309 of the Constitution) having the force of law. It is a matter of policy, and the State Govt. is in advantageous position to examine the ground situation and to lay down criteria in the matter of fixation of seniority to set at rest any difficulty that may arise in such a situation. In AIR 1982 SC 917 it has been held - "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. In AIR 1982 SC 917 it has been held - "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." I find that the impugned rules were framed in compliance with the judgment and order dated 5.9.89 passed by a Division Bench of this Court in order to resolve the various problems including fixation of inter-se-seniority by taking into consideration all the relevant factors that were prevalent in provincialised private college vis-a-vis then existing Govt Colleges. 15. Having given my anxious consideration to the rival contentions made by the learned counsel Mr C. Lalramzauva for the petitioners and Mr N. Sailo, learned Govt. Advocate, Mizoram appearing for the State respondents, I am of the view that impugned rules, viz, the Mizoram Colleges (Provincialisation) Rules, 1991 as amended, and for that matter, sub-rules (2) and (6) of Rule 5 thereof do not suffer from any legal or constitutional infirmity; and the impugned seniority list dated 19.4.96 drawn up in accordance therewith does not call for any interference. In the result, this writ petition stands dismissed. No costs.