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2004 DIGILAW 143 (GAU)

J. Lalremruata v. State of Mizoram

2004-02-27

P.P.NAOLEKAR

body2004
JUDGMENT P.P. Naolekar, J. 1. The facts relevant to this case are that the petitioners were selected by the respondent Government of Mizoram to undergo training of the course of Diploma in Engineering under different disciplines at HIET (Hindustan Institute of Engineering and Technology) sometimes in the year 1982 to 1985. That after successful completion of the Diploma course in engineering under different disciplines from HIET, the petitioners on coming back to Mizoram were appointed as Junior Engineer Grade-II on ad-hoc basis on different dates between 1985 and 1987. 2. The petitioners' appointments were made under the Rules known as The Mizoram PWD (Class-III Posts) Recruitment Rules, 1975', which provides that for appointment to the post of Junior Engineer/Overseer Grade-II the educational qualification required is Matriculate/Higher Secondary with study upto the final year of diploma course, while the educational qualification required for appointment to the post of Junior Engineer/Overseer Grade-I is Diploma in appropriate branch of engineering. While the petitioners were working as Junior Engineer Grade II and while they were expecting that they would be given appointment in the post of Junior Engineer Grade I, as provided in the relevant Recruitment Rules and as was in practice, the respondent No.3 had issued the order under Memo No. P. 13011/9/88-CE(P)/43 dated 6.6.89 whereby the appointment of the petitioners as JE Grade-II were converted as Sr. Electrician Grade-II in the scale of pay of Rs.1200-2040 p.m. on the ground that the Diploma acquired by the petitioners from the HIET being only of two year course, could not be accepted to be at par with the three-year Diploma Course from other institutes recognised by the Government of Mizoram. 3. The petitioners, being aggrieved by the above mentioned order dated 6.6.89 converting their appointment from JE Grade-II to Sr. Electrician Grade-II, had approached the Gauhati High Court by filing a writ petition on the ground that the post of Sr. Electrician Grade-II was lower in rank and has a lower pay scale. The said writ petition was registered as Civil Rule No. 25/91 by the Gauhati. High Court and was disposed of vide its judgment dated 24.3.94 wherein the High Court was pleased to quash the order dated 6.6.89 passed by the respondent No. 3 and the petitioners were allowed to continue in their posts as Junior Engineer Grade-II. The said writ petition was registered as Civil Rule No. 25/91 by the Gauhati. High Court and was disposed of vide its judgment dated 24.3.94 wherein the High Court was pleased to quash the order dated 6.6.89 passed by the respondent No. 3 and the petitioners were allowed to continue in their posts as Junior Engineer Grade-II. Pursuant to the judgment dated 24.3.94 passed by the High Court, the respondent No. 3 had passed the order under Memo No. C.18012/11/91-CE(P) dated 17.8.94 quashing the earlier order dated 6.6.89 converting the appointment of the petitioners from Junior Engineer Grade-II to Sr. Electrician Grade-II with immediate effect. Aggrieved by the aforesaid order dated 17.8.94 Sh. Lalthanliana and Sh. F. Lalhmingliana, who were also amongst the petitioners in the earlier writ petition, had again filed a writ petition in the High Court for quashing of the order dated 17.8.94, apart from some other reliefs. The writ petition was registered as WP(C) No. 25/96 and by judgment and order dated 26.11.99 the High Court directed the respondents to ignore the words "with immediate effect" in the order dated 17.8.94 apart from other directions. The challenge in the writ petition was to the words "with immediate effect" taking it to be an order of appointment from the date it has been passed and not from the date 6.6.89 when the petitioners' services were converted into the post of Sr. Electrician Grade-II. As the result of the judgment of the High Court the impediment in treating the petitioners along with the writ petitioners in that case to be treated to have been appointed from the date of the issuance of the order, i.e., 17.8.94 was set at naught. 4. That, in the meantime, the government respondents had appointed the private respondents on their completion of Diploma Course of Engineers from Institutions other than Hindustan Institute of Engineer and Technology (HIET) to the Junior Engineer Grade-II in the year 1987-1988 and later on the private respondents were given promotion to the post of Junior Engineer Grade-I in the year 1989 till 1990. The date of appointment in the post of Junior Engineer Grade-II and date of promotion of Junior Engineer Grade I of the private respondents is being mentioned in paragraph 9 of the writ petition. 5. The date of appointment in the post of Junior Engineer Grade-II and date of promotion of Junior Engineer Grade I of the private respondents is being mentioned in paragraph 9 of the writ petition. 5. During the pendency of the WP(C) No. 25/96 respondent No. 3 had issued the order under Memo No. A.32016/5/92-CE (P)/83 dt.13/3/97 and the order under Memo No. A.32015/3/97-CE(P)/8 dt.12.11.97 whereby on the recommendation of the DPC the petitioners were promoted to the post of Junior Engineer (Electrical) on ad hoc basis in the scale of pay of Rs.1640-2900 per month whereas the private respondents were given promotion to the post of Junior Engineer, Grade I on the recommendation of the DPC. 6. It is the case of the petitioners that when the private respondents were promoted to the post of Junior Engineer Grade-I in the year 1989-90 the petitioners' case were not considered for promotion to the higher post of Junior Engineer Grade I alongwith the private respondents, although the petitioners are apparently senior to the respondents having been appointed in the year 1985-87, whereas the private respondents were appointed in the year 1987-88. The petitioners filed representation to the State Government for the injustice of not considering them for promotion to the higher posts although they were senior than the private respondents. The State Government by its letter dated 22nd June, 2001 informed the petitioners that the proposal for retrospective appointment of Junior Engineers has been considered as agenda for review DPC. They were requested to furnish the requisite information for consideration of their proposal. Thus, the petitioners' case was under consideration of the Government till 22nd June, 2001, as is apparent from the letter of the Under Secretary to the Government of Mizoram, Department of Power and Electricity addressed to the Chief Engineer, Power and Electricity Department, Mizoram, Aizawl, regarding retrospective appointment to the post of Junior Engineer Grade I. The petitioners thereafter having Grade I got no relief from the State Government, has filed the writ petition. It is clear from the admitted facts that the petitioners had no claim till the order dated 6.6.1989 converting their posts from the Junior Engineer Grade-II to the post of Senior Electrician Grade-II was quashed by the High Court. Further, the order appointing them to the post of Junior Engineer Grade II was clarified to be from the date of the conversion dated 6.6.1989. Further, the order appointing them to the post of Junior Engineer Grade II was clarified to be from the date of the conversion dated 6.6.1989. The petitioners thereafter approached the State Government for redressal of their grievances and the State Government vide letter dated 22.6.2001 requested the Chief Engineer, Power and Electrical Department to furnish certain clarifications as contained therein for consideration of the proposal for retrospective appointment of junior Engineers. As no step has been taken by the State petitioners have approached the High Court for redressal of their grievances by filing the petition in the year 2002. Thus the petition cannot be rejected on the ground of laches on the part of the petitioners in approaching the court. 7. The petitioners' service conditions are governed by Mizoram PWD (Class-Ill Posts) Recruitment Rules, 1975. The post of junior Engineer Grade I has to be filled in 50% by direct recruitment and 50% on promotion, failing which by transfer/deputation. The feeder post of the Junior Engineer Grade 1 is Junior Engineer Grade-II, The private respondents have not been appointed to the Grade I is Junior Engineer Grade-II. The private respondents have not been appointed to the Grade I post by direct recruitment having advertised the post to be filled in, but were appointed from the post of Junior Engineer Grade-II, that too only by promotion, although they were juniors to the petitioners. It is clear that though they are appointed on the post of junior Engineer Grade I, in fact and in law they have been promoted to the post of Junior Engineer Grade I from Junior Engineer Grade-II on the recommendation of the Departmental Promotion Committee. Admittedly the petitioners are seniors on the post of Grade-II Junior Engineer and thus they should have been considered in the DPC which took up the matter for promotion to the post of Junior Engineer Grade I. It is settled principle of law that although the government servant does not have a right to be promoted to the higher post, he certainly has a right to be considered for promotion to the higher post. As the private respondents have been given promotion their seniors have a right to be considered for promotion. It is apparent that the petitioners had not been considered for promotion on the dates the juniors were given promotion. As the private respondents have been given promotion their seniors have a right to be considered for promotion. It is apparent that the petitioners had not been considered for promotion on the dates the juniors were given promotion. Private respondents who were juniors were given promotion to the post of Junior Engineer Grade I which is contrary to the established principles of law. 8. For the aforesaid, the petition is allowed. The respondent Nos. 1, 2 and 3 are directed to hold a review DPC for considering the case of the petitioners for promotion from the post of Junior Engineer Grade-II to Grade-I, from the date the private respondents have been promoted. If the DPC finds them fit for promotion to the post of Junior Engineer Grade-I, they shall be treated to have been promoted on the date the private respondents have been promoted and shall be given notional promotion from that date with all service benefits except the salary of Junior Engineer Grade-I for the period they have not worked on the post. The exercise shall be done within the period of 3 (three) months from furnishing a copy of this order before the appropriate authority. There shall be no order as to costs. Petition allowed.