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2009 DIGILAW 625 (GAU)

Lalremtluangi v. State of Mizoram

2009-09-01

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. L.H. Lianhrima, learned Counsel for the petitioner. Also heard Mr. Aldrin Lallawmzuala, learned Additional Advocate General, Mizoram for the State respondents. 2. The brief facts of the case are that the petitioner was appointed as Nursing Assistant in the Scale of Pay of Rs. 3050-75-3950-80-4590 per month plus other allowances as admissible under the rules from time to time against the existing vacancy of Nursing Assistant under 2nd I.R. Bn., Aizawl vide Office Order dated 19.2.2003 issued by the Assistant Inspector General of Police-I, Mizoram. She joined in the aforesaid post and has been working regularly till this day. The post against which the petitioner was appointed, was created by the Government of Mizdram vide Order No. A.12028/6/96-HMP dated 13.11.2000. There is only one post of Nursing Assistant and the Pay Scale for the said post is fixed at Rs. 3050-4590 per month. In the meantime, the Government of Mizoram framed the Mizoram Police Department (Group C post) Recruitment Rules, 2001 (Recruitment Rules in short) which was notified in the official Gazette dated 19.10.2001. The aforesaid Rules came into force on the date of its publication in the official Gazette. The claim of the petitioner is that the petitioner was appointed after the framing of the aforesaid Rules and as such she is entitled to pay scale of Rs. 4500-7000 per month as prescribed for the post of Nursing Assistant/Health Worker as provided under the aforesaid Rules. The petitioner submitted a representation before the authorities concerned claiming pay scale of Rs. 4500-7000 per month as per the Recruitment Rules. The same having not being considered, the petitioner had to approach this Court earlier in WP(C) No. 110 of 2008 which was disposed of vide order dated 17.11.2008 with direction to the authorities/respondents to dispose the petitioner's representation, if any, and communicate the result to the petitioner with reason thereof. 3. In compliance with the aforesaid order of this Court, the respondent Director General of Police considered the petitioner's representation and disposed of the same vide Order No. E.PHQ/A-108/V-III/218 dated 16.2.2009 rejecting his claim. The ground for rejection is quoted below: 1. The petitioner was appointed as Nursing Assistant under 2nd IR Bn. against the existing vacancy in the scale of pay of Rs. 3050-75-3590-80-4590, vide letter No. E/PHQ/HOS/161/160 date19.2.2003. The ground for rejection is quoted below: 1. The petitioner was appointed as Nursing Assistant under 2nd IR Bn. against the existing vacancy in the scale of pay of Rs. 3050-75-3590-80-4590, vide letter No. E/PHQ/HOS/161/160 date19.2.2003. The post in which the petitioner was appointed was created by Government of Mizoram, Home Deptt. Vide letter No. A.12028/6/96-HMP date 13.11.2000. It may be further mentioned that the petitioner was not appointed under the Recruitment Rules of Health Worker as claimed by the petitioner. Hence, it is clear beyond doubt that the petitioner Lalremtluangi has no right to claim a Pay scale of Health Worker before conversion of Nursing Assistant into Health Worker, i.e., vide Home Department letter No. A.11015/1/99-HMP dated 28.11.2008. 4. The State respondents have filed an affidavit-in-opposition, contending mainly that the petitioner was not appointed under the Recruitment Rules. It has also been contended that another Nursing Assistant namely: Miss Vanlalchhani, who was appointed as Nursing Assistant by an Order dated 26.3.2002, like the petitioner, was also allowed to draw pay scale of Rs. 4000-6000 per month wrongly which was subsequently corrected as Rs. 3050-4590 per month by an Order dated 8.4.2002 issued by the Commandant, 1st I.R. Bn., Mualvum, Mizoram. The petitioner's pay scale, according to the respondent authorities, has been fixed at the time of creation of the post vide order dated 13.11.2000 aforementioned and as such she is not entitled to get the pay scale of Rs. 4500-7000 per month as prescribed in the Recruitment Rules. 5. From the pleading of the parties it is found as an admitted position that the post against which the petitioner was appointed as Nursing Assistant was created vide Government of Mizoram Order dated 13.11.2000 (Annexure-IV to the writ petition). Subsequent to the order of creation of the post, the Recruitment Rules of 2001 were framed by the Government. After the framing of the said Rules, the petitioner was appointed vide office order dated 19.2.2003, in the pay scale of Rs. 3050-4590 per month. Therefore, the only issue involved in this case is whether the petitioner is entitled to pay scale of Rs. 4500-7000 per month as prescribed in the Recruitment Rules, 2001. 6. The pay scale of Rs. 3050-4590 was prescribed at the time of creation of the post. 3050-4590 per month. Therefore, the only issue involved in this case is whether the petitioner is entitled to pay scale of Rs. 4500-7000 per month as prescribed in the Recruitment Rules, 2001. 6. The pay scale of Rs. 3050-4590 was prescribed at the time of creation of the post. The Government took conscious decision to frame Recruitment Rules prescribing the pay scale for all the Group 'C' post including the post held by the petitioner with an enhanced scale of pay at Rs. 4500-7000 per month. The State respondents in their affidavit-in-opposition could not come forward with any reasonable explanation why the aforesaid pay scale as prescribed under the Recruitment Rules of 2001 should not be given to the petitioner. They have only referred to appointment of Miss Vanlalchhani as Nursing Assistant who was also given similar pay scale who has raised no objection to such pay scale. 7. In my considered view, putting no claim by a similarly situated employee for the aforesaid pay scale, cannot be a valid ground for denying the pay scale as per the Recruitment Rules to the petitioner. Although respondent authorities made statement in the aforesaid affidavit-in-opposition that the petitioner was not appointed under the Recruitment Rules, 2001, it has not stated as to under what other provision of law the petitioner was appointed. Usually when Recruitment Rules are framed, the appointment made in a particular Group or Grade, is taken as being appointed under the Rules framed by the Government authorities concerned. Here in this case also since the Government has framed Recruitment Rules and the petitioner was appointed after the said Rules came into force, it should be treated that the petitioner was appointed under the said Rules. 8. Once it is accepted that the petitioner was appointed under the Recruitment Rules 2001, she is entitled to get the pay scale as prescribed in the Rules. The respondent authorities while appointing the petitioner was not careful about the pay scale attached to the post of Nursing Assistant under the Recruitment Rules, 2001 and they quoted the pay scale which was mentioned against the post at the time of creation of the post. The aforesaid mistake/omission on the part of the respondent authorities should be corrected. The petitioner is entitled to the pay scale of Rs. The aforesaid mistake/omission on the part of the respondent authorities should be corrected. The petitioner is entitled to the pay scale of Rs. 4050-7000 per month from the date of her joining on the basis of the appointment letter dated 19.2.2003 (Annexure-VI). 9. In view of the above discussion and findings, it is directed that the respondent authorities shall make necessary correction of the pay scale as per the Recruitment Rules in respect of the petitioner which should obviously be Rs. 4050-7000 per month and also make necessary arrangement for payment of salary to the petitioner as per the said pay scale, both arrear and current, within a reasonable period of time. 10. The petition stands allowed. 11. No order as to costs. Petition allowed.