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2009 DIGILAW 840 (GAU)

Dohmingthanga v. State of Mizoram

2009-11-27

H.BARUAH

body2009
JUDGMENT H. Baruah, J. 1. Petitioner herein was initially appointed as Lecturer in Mizoram Hindi Training Institute, Aizawl under the Education Department in the scale of pay of Rs. 700-1300/- vide notification No. A-22017/2/82-EDN/95-A dated 19.7.1984 (Annexure 1) and while he was serving in such capacity by another order No. E-11011/3/88-SHS dated 1.2.1988 authorised him to look after Mizoram Special Hindi School until regular appointment of Principal or Vice-Principal. While he was holding the post as indicated above vide notification No. A-32012/17/90-EDN dated 4.12.1991 (Annexure 3) (he) was promoted and posted as Vice Principal of the Said School (Mizoram Special Hindi School) on ad hoc basis in the scale of pay of Rs. 3000-4500/-. Govt. of Mizoram vide notification No. E-12016/1/91-END dated 27.11.1995 accorded provisional permission for opening of degree classes in the Mizoram, Special Hindi School with Major subjects with the concurrence of the Finance Department. Subsequently, Mizoram, Special Hindi School was renamed as Mizoram Comprehensive School Education and Degree College. The said institute was again renamed as Mizoram Institute of Comprehensive Education by a notification dated 6.5.1997 (Annexure 7) on the recommendation of Mizoram Public Service Commission. 2. Director of College Development Council, North Eastern Hill University, Shillong vide his letter No. CDC.A/144/95-1535 dated 9.2.1999 granted provisional affiliation to Mizoram Comprehensive School of Education and Degree College for a period of two years with effect from 19.11.1998 to 18.11.2000. In the year 2000 vide notification dated 22.3.2000 (Annexure 10), the college section of the said institute was de-linked from the institute with all lecturers and staffs of Science discipline and accommodated in Government Zirtiri Women College while all lecturers and staffs of Arts discipline were accommodated in Government Aizawl College in their grade pay minus the petitioner which resulted the placement of Mizoram Institute of Comprehensive Education under School Education Department. It is contended that the petitioner was not afforded any opportunity to opt as to whether he was willing to continue and serve with the said school or join the college like others. It is also contended that he was not given any scope for promotion to the next higher grade in the school education department. 3. It is contended that the petitioner was not afforded any opportunity to opt as to whether he was willing to continue and serve with the said school or join the college like others. It is also contended that he was not given any scope for promotion to the next higher grade in the school education department. 3. The petitioner in the above facts situation has made the following prayer: In the premises aforesaid, Your humble petitioner most respectfully prays that your Lordship may be graciously pleased to admit this petition, call for the records and issue rule calling upon the respondents to show-cause as to why the writ should not be issued as prayed for and why impugned order excluding the petitioner from equivalent post under the College education or in the education department and placing the petitioner in the inter-se-seniority list prepared for the college lecturers/Principal of various colleges or in the Education department along with the persons with same grade as the petitioner or Post of the Principal, Mizoram Institute of Comprehensive Education (MICE) should not be redesignated as Principal-cum-Joint Director of School Education or Ex- officio Joint Director having the promotional avenue and past him as Joint Director in the Directorate of School Education maintaining his seniority which has to be fixed from the date of the petitioner enjoying the pay scale of Rs. 3700-5000/- or transfer and posted at Govt. Aizawl College where all other lecturers were accommodated vide notification No. A.22012/1/99-EDC dated 22.3.2000 on Selection Grade Lecturer maintaining his seniority from the date of enjoying the pay scale of Rs. 3700-5000/- or open a Hindi wing in the School Directorate or revert back the status of MICE as it was before (College). And after hearing the parties and on perusal of the cause or causes which may be shown by the respondents, Your Lordships may be pleased to make the Rule absolute by granting full relief to the petitioner and/or pass any other or further order or orders as this Hon'ble Court may deem fit and proper in the interest of justice and in the facts and circumstances of the cases, including the cost of this petition. 4. This petition has been challenged by the respondents by filing counter-affidavit. In the counter-affidavit it is contended that the petitioner was promoted to the post of Principal in irregular manner of Mizoram Special Hindi School. 4. This petition has been challenged by the respondents by filing counter-affidavit. In the counter-affidavit it is contended that the petitioner was promoted to the post of Principal in irregular manner of Mizoram Special Hindi School. It is also contended that the petitioner was promoted to the post of Principal on 28.8.1988 when the school comprised only of high school level education well before degree classes were opened and, therefore, his lien lies with the school as Principal. Unless the Special Hindi School was up graded to a degree college there was no reason for the Government to give him opportunity to exercise his option as he belongs to that school only. The degree classes were de-linked from the said school on account of administrative problems and accordingly the Government thought it appropriate to delink the degree classes. Therefore, his claim for transfer to other colleges unlike other lecturers of the Science and Arts stream of the classes commenced in the school cannot be taken into consideration nor he can be put in the seniority list of the lecturers/Principals for the promotion to the next higher grade. Though the scale of the Principal in Mizoram Poly Technic, Lunglei Poly Technic and Women Poly Technic, Aizawl are same as that of the Joint Director, Higher and Technical Education, these posts are not included in the feeder post for promotion to the post of Director, Higher and Technical Education. Since Mizoram Special Hindi School comprises up to high school level only there was no reason for the Government to transfer him out of the said school on the ground that the degree section of the school was de-linked. 5. A re-joinder was submitted by the petitioner against the contention of the respondents made in the affidavit-in- opposition. By the said re-joinder the petitioner has contended that since the school had the degree classes in both streams (Science and Arts) and since it had affiliated by the university, he being the Principal of the institution ought to have been transferred along with the lectures and staffs to the colleges when the degree classes had been de-linked from the said school on account of administrative inconvenience. The purpose of behind the opening the Mizoram Special Hindi School was for implementing the Central sponsored scheme for propagation of Hindi in Mizoram. Secretary to the Govt. The purpose of behind the opening the Mizoram Special Hindi School was for implementing the Central sponsored scheme for propagation of Hindi in Mizoram. Secretary to the Govt. of Mizoram, Department of Education has indicated the intention of the Centrally Sponsored Scheme. In the scheme it was indicated that Hindi will be the first language while Mizo and English would be the 2nd and 3rd language respectively and the said school consist class 1 to degree classes. Classes from I to IV were open in the year 1988 and it was later extended to class VII in the year 1989. In the year 1995 class XII was started while degree classes in 1998. It is contended that during his tenure as Principal of the said school degree classes started and he was a full fledged lecturer in the said school. This being the position in the face of the record, the petitioner has claimed transfer of himself from the said school as lecturer and to maintain his seniority accordingly. 6. Mr. Zochhuana, learned Counsel for the petitioner and Mr. N. Sailo, learned Addl. Advocate General for the respondents were heard at length. 7. In the face of the facts, the sole issue before us is whether the petitioner herein can be treated as the Principal of Mizoram Institution of Comprehensive Education, wherein degree classes started in both the streams per affiliation of academic council of the North Eastern Hill University, Shillong. 8. To answer this issue we must traverse back to his initial appointment and subsequent promotion to the post of Principal. As already contended by the petitioner in his writ petition his initial appointment was in Mizoram Hindi Training Institute, Aizawl and was appointed as lecturer therein. While discharging his duties as lecturer in the said institute he was also authorized to look into the affairs of Mizoram Special Hindi School until appointment of regular Principal or Vice Principal by the Government. These facts go to show that he has been authorized to look after the Mizoram Special Hindi School only. However, subsequently, he was appointed as Vice-Principal on ad hoc basis of Mizoram Special Hindi School. He was regularised in the post of Vice-Principal and thereafter promoted to the post of Principal of the said school which received various nomenclature at various time. Lastly, the said school became known as Mizoram Institute of Comprehensive Education. However, subsequently, he was appointed as Vice-Principal on ad hoc basis of Mizoram Special Hindi School. He was regularised in the post of Vice-Principal and thereafter promoted to the post of Principal of the said school which received various nomenclature at various time. Lastly, the said school became known as Mizoram Institute of Comprehensive Education. The said school received affiliation of the academic council of North Eastern Hill University, Shillong to start of degree classes for a period of two years with effect from 19.11.1998 to 18.11.2000 and accordingly degree classes started thereat. On account of administrative inconvenience degree classes in both the streams which started in the school were de-linked and the teaching staff as well as non-teaching staff were transferred to other colleges for administrative convenience. 9. The respondents in their counter-affidavit claimed that the petitioner herein was serving in the school on and from the date of his authorisation to look after the affairs of it. He was subsequently promoted to the post of Vice-Principal and thereafter to the post of Principal. Opening of degree classes in the school does not mean that the petitioner is also the Principal of the degree classes. At no point of time, the petitioner was ever appointed as lecturer of the degree classes or Principal of the degree classes which started in the school. Therefore, according to the respondents it would be wrong to say that he is the Principal of the degree classes which started at Mizoram Institute of Comprehensive Education per affiliation. It is claimed by the respondents that his lien is always with the Mizoram Special Hindi School and unless the said school was up graded to a degree college, the writ petitioner grievance cannot be taken care of. He is all along with the Principal of the said school and therefore, there was no reason for the Governments to transfer him out of the said school when the degree section of the school was de-linked. The petitioner is holding a substantive appointment in the Mizoram Special Hindi School which did not impart degree level education though he might have enjoyed a scale of Rs. 3700-5000/- per month. There is no averment in the writ petition that he was appointed as a full fledged Principal of the degree college run in the institute. The petitioner is holding a substantive appointment in the Mizoram Special Hindi School which did not impart degree level education though he might have enjoyed a scale of Rs. 3700-5000/- per month. There is no averment in the writ petition that he was appointed as a full fledged Principal of the degree college run in the institute. Hence the claim of repatriation of the petitioner to higher and technical education department does not arise. Enjoyment of the scale by the petitioner with that of the Joint Director of School education cannot entitle him for posting as Joint Director, an administrative post of the Education Department. The teaching staff the non-teaching staff were recruited specially for the degree section of the institute and hence their transfer on delinkage of the degree classes therefrom to the colleges as indicated above cannot entitle the petitioner his repatriation to some other colleges since he holds to post of Principal of the Institute (school) only. Petitioner was never appointed either as a lecturer or Principal of the degree section which ran in the institute for some time. 10. Mr. N. Salio, learned Addl. Advocate General very strenuously argued that the claim of the petitioner is totally unfounded since he is the Principal out and out of the institute only. He was never appointed in the degree section by the Government at any point of time. 11. Contrary to the submission, Mr. Zochhuana, learned Counsel appearing for the petitioner, submitted that Mizoram Institute of Comprehensive Education is an institute having degree classes and since he had appointed as the Principal of the said institute he is out and out the Principal of the said institute which after delinkage required transfer of the petitioner to some other colleges or to the colleges where the Science and Arts stream of the degree section had been amalgamated. Nowhere, in the writ petition it is contended that the petitioner was appointed as Principal for the degree classes. In that view of the matter I do not find any force in the submission of Mr. Zochhuana to hold that the writ petitioner is an integral part of the degree section, which ran in the institute as indicated above. To my humble view the petitioner's claim is not sustainable. The contention raised in the affidavit-in-opposition by the respondents have substance in the face of the facts involved in this writ petition. 12. Zochhuana to hold that the writ petitioner is an integral part of the degree section, which ran in the institute as indicated above. To my humble view the petitioner's claim is not sustainable. The contention raised in the affidavit-in-opposition by the respondents have substance in the face of the facts involved in this writ petition. 12. Having taken into consideration of all the matters in it's entirely, I am of the humble view that this petition does not have any merit. There is appears no violation of fundamental rights as granted under Articles 14 and 16 of the Constitution of India. This writ petition is accordingly dismissed. No cost.