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2005 DIGILAW 486 (GAU)

H. Biakchhunga v. State of Mizoram

2005-06-27

BROJENDRA PRASAD KATAKEY

body2005
JUDGMENT B.P. Katakey, J. 1. This writ petition is filed by the petitioner, who is an Inspector of Statistics in the Government of Mizoram, challenging the final inter-se seniority list dated 10.2.1998 and for directing the respondents to prepare a fresh seniority list by placing the petitioner above private respondent Nos. 4 to 7. 2. The fact in brief is that the petitioner was initially appointed in the year 1973 as Field Assistant the Economics and Statistics Department of Govt. of Mizoram. Thereafter he was promoted to the post of Computer on 10.5.1978 and to the post of Junior Statistician, vide order dated on the basis of the recommendation Promotion Committee (DPC) held on 29.2.1984. On the basis of another selection conducted by the selection committee in its meeting dated direct recruitment to recommendation were made and in pursuant the order of appointment dated 4.7.1985 was issued appointing the private respondents along with thirteen others to the post of Junior Statistician against the quota fixed for direct recruitment. Under the relevant rules, namely, Mizoram Statistician Services (Group C Posts). Recruitment Rules, 1982 the post of Junior Statistician is required to be filed up by promotions as well as by direct recruitment and the quota fixed is 50% each. The Rule is silent about the manner in which the inter-se-seniority between the promotee and the direct recruit is to be fixed. The post of Junior Statistician and Statistician was thereafter amalgamated into the grade of Statistician with effect from 1.1.1986 and consequently the post of Statistician with effect from 1.1.1986 and consequently the post of Statistician in the department of Economics and Statistics was deemed to be abolished with effect from the said date and the incumbent of the said post was redesignated as Statistician vide order dated 9.4.1990 issued by the Development Commissioner Government of Mizoram. The said post of Statistician was thereafter redesignated as Inspector. On 1.11.1990 the seniority list of Junior Statistician was published wherein the name of the petitioner was placed at serial No. 21 and that of the private respondents were placed at serial Nos. 24 to 27. After redesignation of the post of Statistician as Inspector a provincial seniority list dated 24.7.1996 was published where in the petitioner's name was placed t serial No. 27 and that of the private respondents at serial Nos. 20, 22, 24 and 26 respectively. 24 to 27. After redesignation of the post of Statistician as Inspector a provincial seniority list dated 24.7.1996 was published where in the petitioner's name was placed t serial No. 27 and that of the private respondents at serial Nos. 20, 22, 24 and 26 respectively. The petitioner being aggrieved filed the objection on 12.8.1996 before the Director, Economics and Statistics. Another provisional inter-se-seniority list of Inspector of Statistics was published on 1.8.1997 without there being any change in the position of the petitioner and the private respondents. The petitioner against the said provincial list had not filed any objection as he has already filed the objection against tile first provisional inter-se-seniority list. The Director Economics and Statistics on 10.2.1998 published final inter-se-seniority List of Inspector of Statistic placing the petitioner at serial No. 24 and respondents at serial Nos. 18, 20, 22 and 23 respectively. The petitioner after lapse of more than two years from the date of publication of the said final inter-se-seniority list filed a representation on 31.5.2000 before the Director, Economics and Statistics objecting to the seniority list and claiming seniority over the private respondents. The said representation was disposed, of by the Director vide order dated 18.9.2000 intimating him that as the petitioner and the respondents were promoted/ appointed against the quota fixed for the promotee and the direct recruit as per the recruitment rules, the seniority has been fixed in terms of the office memorandum dated 3.7.1986 by applying the Rota rule. The petitioner again after almost two years, i.e. on 3.7.2002 filed a review petition seeking preview of the final inter-se-seniority list of Inspectors and as nothing was done by the respondents, he has approached this court by way f the present writ petition dated 8.7.2003. 3. I have heard Mr. George Raju, learned counsel for the petitioner and also Mr. N. Sailo, learned State counsel appearing on behalf of the respondent Nos. 1, 2 and 3. The respondent Nos. 4 to 7 despite service of notice did not appear and contest the writ proceeding. 4. Mr. Raju, loaned counsel for the petitioner has submitted that as he was promoted to the post of Junior Statistician on 10.4.1984 and the private respondents Nos. 1, 2 and 3. The respondent Nos. 4 to 7 despite service of notice did not appear and contest the writ proceeding. 4. Mr. Raju, loaned counsel for the petitioner has submitted that as he was promoted to the post of Junior Statistician on 10.4.1984 and the private respondents Nos. 4 to 7 were directly recruited to the said post on 4.7.1985, in the absence of any provision in the service rules for fixation of inter-se-seniority between the promotee and tine direct recruit the seniority of the petitioner vis-a-vis the private respondents was rightly fixed in the post of Junior Statistician vide the inter-se-seniority list dated 1.11.1990. The further submission of the learned counsel for the petitioner is that the authority by publishing final inter-se-seniority list of the Inspector of Statistics on 10.2.1998 has committed illegality as the private respondents are shown as senior to the present petitioner thought the petitioner was promoted more than one year before the appointment of the private respondent and in the absence of any provision in the service rules lying down the manner in which the inter-se-seniority between the promotee and direct recruit is to be fixed between them. Therefore, the learned counsel for the petitioner has submitted that the petitioner ought to have shown as senior to the private respondents, he having joined the service much earlier than the private respondents. Regarding the notification dated 3.7.1986, which according to the Government is basis for fixation of seniority, the learned counsel for the petitioner has submitted that the seniority cannot be fixed on the basis of the said notification as said office memorandum is made applicable with effect from 1.3.1986 and the petitioner as well as private respondents were appointed in the year 1984-1985 and their services were amalgamated to the post of statistician, which was redesignated as Inspector with effect from 1.1.86. The learned counsel in support of his contention has placed reliance on Direct Recruit Class II Engineering Officers’ Association State of Maharashtra and other reported in (1990) 2 SCR 900 and Niranjan Prasad Sinha and another v. Union of India and other reported in (2001) 3 SCR 636. The learned counsel in support of his contention has placed reliance on Direct Recruit Class II Engineering Officers’ Association State of Maharashtra and other reported in (1990) 2 SCR 900 and Niranjan Prasad Sinha and another v. Union of India and other reported in (2001) 3 SCR 636. Countering the stand taken by the respondents on the point of delay in filing the writ petition, the learned a counsel for the petitioner has submitted that he has filed the representations from time to time against the provisional inter-se-seniority list as well as against the final inter-se-seniority list which was published on 10.2.1998 and as nothing was done by the Government to redress his grievances he has to file the writ petition before this court. The learned, counsel, therefore, submits that as he was pursuing the matter before the Government, he did not approach this court immediately on publication of the final inter-se-seniority list on 10.2.1998 and in any case as the petitioner and the private respondents have not been promoted to the next higher post and are still working as Inspector there is no change of situation and hence the delay in filing the writ petition will c have no effect on this point the learned counsel for the petitioner has placed reliance the decision of the Apex Court in K. Thimmappa and other v. Chairman, Central Board of Directors, State Bank of India and another reported in 2001 (2) SCC 259 and also a division bench judgment of this court in Appolo Machinery Mart and other v. State of Assam & other reported in 1997 (2) GLT 213. 5. Mr. N. Sailo, learned State counsel supporting the inter-se-seniority list published by the department on 10.2.1998 has contended that the department has rightly published the said seniority list placing the petitioner below the private respondents as there are two sources of recruitment to the erstwhile post of Junior Statistician under the recruitment rules, i.e. 50% by promotion and 50% by direct recruitment. Since the quota for recruitment is fixed, the Rota rule for the purpose of fixation of inter-se-seniority between the promotee and direct recruit automatically shall apply. Since the quota for recruitment is fixed, the Rota rule for the purpose of fixation of inter-se-seniority between the promotee and direct recruit automatically shall apply. Since the process of selection from both the" sources was initiated in the same year, i.e. in 1984 and there was no breakdown of quota rule, the seniority has to be fixed between the promotee and the direct recruit by rotation of vacancies by applying rota rule against the vacancy occurred in the year 1984. The seniority between the promotee and direct recruitee has to be fixed by placing & the one promotee above one direct recruit and followed by another promotee and another direct recruit. Mr. N. Sailo, learned counsel has submitted that the posts of Junior Statistician fell vacant in the year 1984 and the process for direct recruitment against the 50% of quota reserved for direct recruit, though was initiated by intimating the Employment Exchange to furnish the list of candidates to appear in the written test, it-required sometime to complete the said process. The department in view of urgent requirement of the filling of the post decided to consider the cases of the computer/P.I. for promotion against the promotional quota of 50% and accordingly the DPC in its meeting dated 29.2.1984 recommended the name of the petitioner and other for promotion to the post of Junior Statistician. The selection committee after holding the written test for filling up of the post of Junior Statistician by direct recruitment, in its meeting dated 5.9.1984 recommended the names of the private respondents and other for appointment to the said post and ultimately the appointment orders were issued on 4.7.1985. According to the learned counsel since the process for recruitment from both sources were initiated in the same year against the vacancies of same year and there was no breakdown of the quota rule and as such the respondents were to be placed above the petitioner in the inter-se-seniority list by following the rotation of the vacancies between the promotee and direct recruit in terms of the quota fixed in the recruitment rule, even though the respondents were appointed at a later point of time than the petitioner. Mr. Mr. Sailo, in support of his contention has also placed reliance on Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and other reported in (1990) 2 SCR 900 , T.N. Saxena and other v. State of U.P. and other reported in Surjit Singh and other v. Union of India and other reported in AIR 1997 SC 2693 and M. Subba Reddy and another v. A.P State Road Transport Corporation and other reported in AIR 2004 SC 3517 . 6. Mr. N. Sailo, learned State counsel has further submitted that because of the delay and latches in approaching this court by the petitioner by way of present writ petition, the petitioner is not entitle to any relief. According to the learned State counsel though the final seniority list was published on 10.2.1998, the petitioner on 31.5.2000, i.e. after two years had filed the objection against the said final seniority list, which was rejected by the department on 18.9.2000 and again after about two years he filed a review petition. Had the petitioner been aggrieved by the final seniority list he ought to have immediately approach this court in the year 1998 itself and as he has filed the present writ petition on 8.7.2003, i.e. more than five years from the date of publication of the final seniority list, he is not entitle to any relief as the relief prayed for, if granted, would unsettle the settled position of seniority between the petitioner and the private respondents. In support of his contention the learned State counsel has placed reliance on the decision of the Apex Court in State of Haryana and other v. Ms. Ajay Walia reported in AIR 1997 SC 3007 , Jagdish Lai and other v. State of Haryana and other reported in 1997 (6) SCC 638 and Union of India and another v. S.S. Kothiyal and other (1998) 8 SCC 682 . 7. I have considered the rival submissions of the learned counsel for the parties and above and also persued the pleadings as well as the material also record. 8. 7. I have considered the rival submissions of the learned counsel for the parties and above and also persued the pleadings as well as the material also record. 8. The Government of Mizoram has framed the Rule namely Mizoram Statistician Services (Group C posts) Recruitment Rules, 1982 (hereinafter referred to as recruitment rules) laying down the procedure for recruitment to the post of Junior Statistician is to be made from two sources, i.e. by promotion and by direct recruitment the quota fixed for the both the sources is 50% each. In the 1984 a Number of posts of Junior Statistician fell vacant and the Government has initiated the process for selection of the candidates for filling up of the said posts from both the sources, i.e. by promotion and direct recruitment. According the Government for the purpose of filling up of 50% of the post from the quota of direct recruitment intimated the employment due to urgency of works in said department and the processing of the written test is a long drawn process, the DPC has decided to consider the cases of the persons from the other source, i.e. by promotion and for that purpose the selection process was initiated and the DPC ultimately in its meeting dated 29.2.1984 has selected the petitioner alongwith others for promotion to the post Junior Statistician against the 50% quota fixed for the promotee. The DPC in its meeting dated 29.2.1984 has cleanly recorded the said fact and has also recorded that the inter-se-seniority between, the direct recruit and the promotee will be decided as per the roster. The relevant portion of the said proceeding is quoted below. 1. There are 11 no of Vacant, posts of Junior Statistician in the scale of pay of Rs. 380-640 p.m. As per Recruitment Rules 50% by direct recruitment. For filling up of 50% posts of Junior Statisticians form the posts of direct recruitment, Employment Exchange were already intimated to furnish the list of candidates to appear in the written test. 1. There are 11 no of Vacant, posts of Junior Statistician in the scale of pay of Rs. 380-640 p.m. As per Recruitment Rules 50% by direct recruitment. For filling up of 50% posts of Junior Statisticians form the posts of direct recruitment, Employment Exchange were already intimated to furnish the list of candidates to appear in the written test. As filling up of the posts are urgently required due to urgently of the worlds in some Department and processing of the written Test will be long way process, the DPC decided to consider the case of Computer/P.I. for promotion to fill in 6 posts of Junior Statistician so that some posts may be filled up and the problem of some Department may be solved early. In regard to fixation of inter-se-seniority, it is decided to carefully maintain Roster and relative seniority fixed as per the roster. 9. The Selection Committee after holding the written test for filling up of the post of Junior Statistician vide direct recruitment against the quota fixed for it, in its meeting dated 5.9.1984 has selected 18 persons for direct recruitment to the said post which includes the present respondent Nos. 4 to 7. Though the selection was made in the year 1984 itself of recruitment because of the official formalities, the order of appointment to the private respondents and other were issued vide order dated 4.7.1985. 10. The case of the petitioner is that since he was appointed as Junior Statistician on 10.4.1984 and the private respondents were appointed on 4.7.1985, i.e. more than one year after the appointment of the petitioner, the petitioner cannot be held to be Junior to the private respondents, in the absence of any rule relating to the fixation to inter-se-seniority between them. The petitioner's further case is that as there is no rule regarding fixation of inter-se-seniority, the length of service is the basis on which the seniority between the promotee and the direct recruit is to be fixed and the office memorandum dated 3.7.1986 which is applicable with effect from 1.3.1986 can not be made applicable in the instant case and consequently the seniority of the private respondent can not be fixed over the petitioner as the seniority between them in the post of Junior Statistician, was already fixed 1.11.1990. 11. 11. The post of Junior Statistician was amalgamated with the post of Statistician vide order dated 9.4.1990 issued by the authority. The said post of statistician was thereafter redesignated as Inspector of Statistics. After said redesignation a provincial seniority list dated 24.7.1996 was issued wherein the name of the petitioner was reflected below the names of the private respondents. The petitioner immediately thereafter, i.e. on 12.8.1996 filed his objection for fixing such seniority. A second provisional seniority list of the Inspectors was published on 1.8.1997 by the maintaining the same position as in the first provincial seniority list and thereafter the final inter-se-seniority list was published on 10.2.1998. The petitioner for more than two years did not raise any objection after the publication of the final seniority list and on 31.5.2000 he filed an objection which was rejected by the department on 19.9.2000. The petitioner thereafter on 3.7.2002, i.e. almost after two years again filed a review petition and on 8.7.2003 has approached this court by filing the present writ petition. 12. A Constitution Bench of the Apex court in Direct Recruit Class II Engineering Officers’ Association case has extensively dealt with the manner of fixation of the seniority between the promoter and the direct recruit and also the quota and the Rota rule. The Apex Court has held that when the appointments are made from more than one source, it is permissible to fix the ratio for recruitment from different sources and if the rules are framed in that regard, though ordinarily be followed strictly, in case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so, the inference is irresistible that the quota rule had broken down and in that case the appointment made from one source in excess of the quota, but are made after following procedure prescribed by the rules for appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. The ratio laid down in the said decision is that unless the quota rule has broken down the Rota Rule will apply and the seniority is to be fixed by rotation of vacancies between the promotees and the direct recruit as per the quota fixed. 13. The ratio laid down in the said decision is that unless the quota rule has broken down the Rota Rule will apply and the seniority is to be fixed by rotation of vacancies between the promotees and the direct recruit as per the quota fixed. 13. In T.N. Sexena case the Apex Court has held that the inter-se-seniority between the promotee and the direct recruit has to be guided by the quota rule. The Apex Court has further held that where the recruitment was from two sources for a cadre and the quota rule had been prescribed, seniority had to be regulated on the basis of quota rule. The Apex Court in the said case also placed reliance on the Direct Recruit Class II Engineering Officers' Association case. The relevant portion of the said decision is quoted below: 6. We may refer to two decisions of this Court being V.B. Badami v. State of Mysore and Gonal Bihimappa v. State of Karnataka. Badami case was a decision of a three Judge bench while the other is by a two Judge bench. Both these cases have laid down the rule that where recruitment was from two sources for a cadre and a quota rule had been prescribed seniority had to be regulated on the basis of the quota. A Constitution Bench of this Court Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra (to which one of us is a party) has laid down in paragraph 47 of the judgment the guidelines to be adapted in dealing with disputes of inter-se-seniority in the same situation. The relevant guideline applicable to the present case appears to be, SCC p. 745, para 47(c) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources and if rules are framed in this regard, it must ordinarily be followed strictly. It is not in dispute that the recruitment of the cadre is subject to the rules of 1964 and recruitment to the cadre is from two sources. Therefore, inter se seniority has to be guided by the quota rule. 14. It is not in dispute that the recruitment of the cadre is subject to the rules of 1964 and recruitment to the cadre is from two sources. Therefore, inter se seniority has to be guided by the quota rule. 14. The Apex Court in Surjit Singh (supra) while dealing with the provision of Rule 13(1) and second proviso and Rule 12 of Central Secretariat Service Rules has held that is as one sixth quota has been fixed for direct, recruits, the fixation of seniority of direct recruit vis-a-vis the policy by interpolating direct recruits, i.e. sixth/fifth place after every 5/4 promotees is valid. The Apex Court in M. Subba Reddy (supra) while dealing with the A.P SRTC. Employees (Recruitment) regulation, 1996 has held that if quota is fixed for recruitment to a particular post from two sources and because of the Governmental action vacancy meant for a particular source could not be filled up, the seniority between the two sources of recruitment has to be fixed on the basis of the quota fixed and on the basis of the Number of vacancies falling in a particular category and not on the basis of the date of promotion or selection. The Apex Court has further held that the Rota rule is inbuilt in the quota prescribed under the rules and could not be deviated from. The Apex Court, therefore, has held that the promotees notwithstanding that they were regularized before the selection of the direct recruitments, could not get seniority over the direct recruit. Merely because of the inaction in or imposition or ban on direct recruitment did not mean that the quota rule was broken down. Ratio laid down in the said case, therefore, is that unless the quota rule has broken down, the Rota rule for the purpose of fixation of seniority has to be applied. 15. In Niranjan Prasad Sinha (supra) the Apex Court while dealing with the inter-se-seniority amongst the promotees has held than in the absence of the rules regarding of fixation of seniority, the seniority in a particular grade has to be determined on the basis of length of continuous service in that grade. In the said case the inter-se-seniority amongst the promotee was in question and not between the promotee and direct recruit. In the said case the inter-se-seniority amongst the promotee was in question and not between the promotee and direct recruit. There is no dispute to the legal proposition that in the absence of any service rules the inter-se-seniority amongst the officers recruited from one source has to be fixed on the basis of length of continuous service in that grade, but in the event the source of recruitment is from two sources, i.e. by promotion and direct recruitment and quota is fixed for such, the inter-se-seniority between the promotees and the direct recruit are required to be fixed on the basis of the rotation of the vacancy as per quota fixed in the recruitment rules, irrespective of whether there is any provision in the recruitment rules for the purpose of fixation seniority between them, unless the quota rule has broken down. 16. The contention of the petitioner is that the office memorandum dated 3.7.1986 which came into effect from 1.3.1986, cannot be made applicable in a instant case in fixation of seniority between promotees and the direct recruit as the petitioner and the private respondents were appointed prior to coming to said office memorandum, has also no force, in view of the fact that whether the said office memorandum dated 3.7.1986 is applicable or not, the seniority as held above between the promotees and the direct recruit has to be fixed by rotation of vacancy in accordance with the quota fixed under the recruitment rules, since it is not the case of the petitioner that the quota rule has broken down. 17. In the view of the law laid down by the Hon'ble Supreme Court, it is, therefore, clear that when any quota is fixed in the recruitment rules for recruitment to any post from two sources, unless the quota rule has broken down due to non adherence for a long period of time, the Rota rule will automatically be applied in fixation of seniority between the promotee and the direct recruit in terms of the quota fixed, irrespective of whether there is any specified provision for the purpose of fixation of seniority between them. In the instant case petitioner has not alleged that the quota rule has broken down. Therefore, the Rota rules is automatically be applied in fixation of the seniority between, the promotee and direct recruit. In the instant case petitioner has not alleged that the quota rule has broken down. Therefore, the Rota rules is automatically be applied in fixation of the seniority between, the promotee and direct recruit. As per the recruitment rules as 50% of vacancy was reserved for promotee and 50% by direct recruitment, the seniority has to be fixed by rotating the vacancy in the ratio of 1:1. 18. In the instant case, as already observed as above, the recruitment process for recruitment of the private respondents by the direct recruitment within the quota fixed for that purpose and also promotion of the petitioner against the quota fixed for the promotees was initiated in the year 1984 but as the recruitment of persons by direct recruitment will take a longer period of time because of the written examination required to be held and as there was urgent need for recruiting the person, the government has opted for recruitment from promotional source against the vacancy of 1984. However, selection, for direct recruitment was also completed in the year 1984 itself but because of necessary administrative work appointment order could be issued only on 4.7.85. Since the quota has been fixed and quota rule has not broken down, because of the delay on the part of the Government the direct recruit can not be allows to suffer and, therefore, though they were appointed later than the petitioner to the post of Junior Statistician, the seniority has to be fixed by rotation of vacancies occurred in the year 1984 and, therefore, department has rightly fixed the seniority of the private respondents vis-a-vis petitioner by rotating the vacancies. 19. As this Court has held that seniority was rightly fixed by the authority, it has not dealt with the question of delay in filling the writ petition and in challenging the seniority list dated 10.2.1998 as raised by the respondents and hence the decisions cited in that regard have not been. 20. In view of the above, I do not find merit in the writ petition and hence the same is dismissed. Appeal dismissed.