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2008 DIGILAW 603 (GAU)

Mukesh Kumar v. State of Mizoram

2008-08-14

MAIBAM B.K.SINGH

body2008
JUDGMENT Mutum B.K. Singh, J. 1. This writ petition has been filed challenging the correctness of the in terse seniority list of Head Constable (RM) of Mizoram Police Radio Organization (MPRO) dated 13th September, 2004 and for quashing the letter bearing No. A.11020/68/04-SP(W). RO/39, dated 23rd March, 2005, by which the representation of the Petitioner dated 8.11.2004 was rejected. 2. That, in the impugned in terse seniority list dated 13th September, 2004 (Annexure-6 to the writ petition), the name of the Petitioner appears at Sl. No. 21 and the names of the private Respondents are shown at Sl. Nos. 16, 17, 18,., 19 and 20 respectively. According to the Petitioner, his name ought to have been placed at Sl. No. 16, as his initial date of appointment was 21.11.1989, i.e., earlier than the dates of appointments of the private-Respondents. His representation against the said seniority list was rejected by the Respondent No. 3 wrongly vide letter dated 23rd March.2005. 3. Heard Mr. M.M. Ali, learned Counsel appearing for the Petitioner and Mrs. H. Dawngtiani, learned Govt. Advocate for the State-Respondents. None appears for the private-Respondents. 4. Facts, in nutshell, are that the Petitioner was initially appointed as Naik Operator in MPRO as per relevant recruitment rules vide office order No. 469 of 1989 dated 21.11.1989, issued by the Respondent No. 3. Thereafter, with the prior approval of the Respondent No. 2, the Petitioner along with 13 others Naik Operators including the private Respondents, were re-mustered as Head Constables (RM), Head Constables (Cipher) and Head Constables (Fitter) respectively, and assumed their duties on different dates as shown in the order dated 29th December, 2000 issued by the Respondent No. 3. The Petitioner and the private Respondents except private Respondent No. 6 were re-mustered as Head Constables (RM) w.e.f. 12.12.2000. On 13th September, 2004, the impugned in terse seniority list (tentative) of Head Constables (RM) was issued showing the names of the private Respondents above the Petitioner. Being dissatisfied with the said seniority list, the Petitioner submitted a representation to the Respondent No. 3 but the same was rejected on 23rd March, 2005. 5. Mr. On 13th September, 2004, the impugned in terse seniority list (tentative) of Head Constables (RM) was issued showing the names of the private Respondents above the Petitioner. Being dissatisfied with the said seniority list, the Petitioner submitted a representation to the Respondent No. 3 but the same was rejected on 23rd March, 2005. 5. Mr. M.M. Ali, learned Counsel appearing for the Petitioner submits that the Petitioner was appointed as Naik Operator on 21.11.1989 whereas the private Respondents were appointed on 29.11.1989, 19.7.1991, 1.8.1991 and 2.8.1991 respectively as Naik Operators and all of them were re-mustered as Head Constables (RM) on the same day i.e., 11.12.2000. There is no policy or guidelines of the Government regarding the fixation of in terse seniority of the re-mustered Head Constables. On 19.2.1991, the then Asstt. Inspector General of Police-I, Mizoram, Aizawl, informed the Respondent No. 3 that the in terse seniority of those who were re-mustered as Head Constables (CIP) and Head Constables (RM) should follow their in terse seniority as Naik Operators (Annexure-5). Mr. M.M. Ali, the learned Counsel appearing for the Petitioner submits that in view of the said instruction of the Respondent No. 2, the name of Petitioner should have been placed above the private Respondents in the impugned in terse seniority list as he was senior in the in terse seniority list of the Naik Operators. 6. That, the learned Govt. Advocate, reacting to the submissions advanced by the Petitioner's learned Counsel, submits that the Petitioner and the private Respondents together with other Naik Operators were appointed directly to the post of Head Constables (RM) and not by way of promotion from the post of Naik Operators, after conducting necessary written as well as practical tests owing to the shortage of man power for filling up the vacant posts of Head Constables (RM), Head Constables (Fitter) and Head Constables (Cipher). 7. That, out of the 17(seventeen) Niak Operators who had appeared in the tests, 14(fourteen) candidates were selected strictly on merit for filling up the vacant posts of Head Constables (RM), (Fitter) and (Cipher) respectively. Thereafter, the Respondent No. 3 issued an order on 11.12.2000, re-mustering those selected Naik Operators to fill up the vacant posts of Head Constables (RM), (Fitter) and (Cipher) respectively indicating specifically that their seniority as Naik Operator shall be counted only for pension and leave etc. According to the learned Govt. Thereafter, the Respondent No. 3 issued an order on 11.12.2000, re-mustering those selected Naik Operators to fill up the vacant posts of Head Constables (RM), (Fitter) and (Cipher) respectively indicating specifically that their seniority as Naik Operator shall be counted only for pension and leave etc. According to the learned Govt. Advocate, the impugned inter se seniority list was prepared strictly in order of merit, and as per office order dated 14.10.1988 (Annexure-K to the counter-affidavit). The earlier seniority position in the rank of Naik Operators and the letter of the Respondent No. 2 dated 19.2.1991 are not relevant in fixing the impugned in terse seniority list. 8. Upon hearing the rival submissions of the learned Counsels appearing for the parties and on perusal of the pleadings as well as the documents annexed, it is evident that the posts of Head Constables (RM), (Fitter) and (Cipher) are to be filled up by direct recruitment as per relevant Recruitment Rules. The post of Naik Operator is not the feeder post for filling up the post of Head Constable (RM), (Fitter) and (Cipher). The letter dated 21st September, 1998 (Annexure-A to the counter-affidavit) reveals that the Respondent No. 2 accepted the proposal of the Respondent No. 3 for filling up the vacant posts of Head Constables (RM), (Fitter) and (Cipher) from amongst the eligible and willing Naik Operators with the instruction that the appointment shall be made by way of direct appointment and not by promotion and they have to go for the required training. The Respondent No. 3 was also directed to devise a system of selection. 9. Pursuant to the direction of the Respondent No. 2, the selection of candidates from amongst the eligible and willing Naik Operators was conducted after holding necessary tests in General English, General Knowledge and Practical test of Message receiving on R.T. Communication with 50 marks each. The candidates were also asked to indicate their preference of trades. The Petitioner and the private Respondents were selected in order of merit and the selection was approved vide order dated 7th December, 2000 issued by the Govt. of Mizoram, Police Headquarters, Aizawl. The candidates were also asked to indicate their preference of trades. The Petitioner and the private Respondents were selected in order of merit and the selection was approved vide order dated 7th December, 2000 issued by the Govt. of Mizoram, Police Headquarters, Aizawl. On 11.12.2000, the Respondent No. 3 issued an order re-mustering the Petitioner and the private Respondents as Head Constables (RM) in order of merit and in the said order it has been clearly indicated that their seniority as Naik Operators shall be counted only for pension and leave, etc. The names of the private Respondents appear at Sl. Nos. 2, 4, 7, 8 and 10 respectively whereas the name of the Petitioner appears at Sl. No. 11 in the said order, which has not been challenged by the Petitioner. 10. That, from the above facts, it is crystal clear that the appointment of the Petitioner as well as the private Respondents to the posts of Head Constables (RM) were made after conducting various tests by way of direct appointment and strictly in order of merit in the test examinations. It is well settled principle that the in terse seniority shall be maintained in the case of direct appointment/recruitment strictly in order of merit in the absence of any Rule to the contrary. Since the Petitioner and the private Respondents were appointed directly in order of merit, their inter 'se seniority has to be fixed according to their merits and not on the basis of their seniority' position in the grade of Naik Operators. 11. That, as per office order (Annexure-K to the counter-affidavit) there will he rank-wise common seniority list irrespective of all trades without giving any effect to the trade-wise seniority. The rank-wise common seniority should be prepared based on the date of holding the rank and if the date of holding the rank is the same it should further based on the date of appointment and then the date of birth. 12. That, the trade-wise rank seniority list should be maintained basing on the date of holding the rank in order of merit of appointment/promotion to the rank. Trade-wise rank seniority for those persons who have changed their trades should be based on re-mustering them to that particular trade and the seniority of the person changed his trade will only be counted for his pension and not for promotion. 13. Trade-wise rank seniority for those persons who have changed their trades should be based on re-mustering them to that particular trade and the seniority of the person changed his trade will only be counted for his pension and not for promotion. 13. That, the learned Counsel appearing for the Petitioner, at the time of hearing, admitted the existence of the said office order but submitted that the impugned inter se seniority list is a rank-wise common seniority list, the Petitioner and the private Respondents were appointed to the same rank on the same day and the Petitioner joined the rank earlier than the private Respondent No. 6 and as such the name of the Respondent No. 6 should be placed below him. I have carefully perused the impugned inter se seniority list and of the firm view that the impugned inter se seniority list is not a rank-wise common seniority list. The learned Govt. Advocate has also produced the copies of separate inter se seniority lists of Head Constables (Fitter) and Head Constables (Cipher) issued on 13th September, 2004. The impugned inter se seniority list was also issued on the same date. That being the position, the submission of the learned Counsel appearing for the Petitioner appears to be misconceived. 14. That, I am also unable to accept the contention of the learned Counsel appearing for the Petitioner that the inter se seniority list of the Petitioner and the private Respondents shall be fixed as per the letter dated 19th February, 1991 issued by the Asstt. Inspector General of Police-I, Mizoram, Aizawl. The said letter is not applicable in the case of the Petitioner as the Petitioner was not born in the cadre of Head Constable (RM) when the said letter was issued. The Petitioner also could not produce any in terse seniority list in respect of re-mustered Head Constable (Cipher) and Head Constable (RM) published earlier as per the said letter of the Asstt. Inspector General of Police-I, Mizoram, Aizawl. 15. That, for the reasons and discussions made hereinabove, I am of the view that the impugned inter se seniority list was prepared in order of merit and in conformity with the office order at Annexure-K to the affidavit-in-opposition. Consequently, the present writ petition is dismissed being devoid of merit. No order as to costs. Petition dismissed.