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Gauhati High Court · body

2010 DIGILAW 24 (GAU)

Joseph Zairemmawia v. State of Mizoram

2010-01-19

C.R.SARMA

body2010
JUDGMENT C.R. Saram, J. 1. Heard Mr. Vanlalenmawia, learned Counsel appearing for the Petitioner. Also heard Mr. N. Sailo, learned Addl. Advocate General, Mizoram, and Mrs. Dinari T. Azyu. learned Government Advocate appearing for the State Respondents. None appears for the private Respondents. 2. In this writ petition, filed under Article 226 of the Constitution of India, the Petitioner has challenged the appointments of the private Respondents as Sub-Inspector (Operator) under the Mizoram Police Radio Organisation on the ground that the said appointments were made violating the law/procedure prescribed by the Mizoram Police Manual, 2006 (hereinafter called the "Manual") The Petitioners' case in brief may be stated as follows. 3. The Petitioners No. 1 to 5 were appointed as Assistant Sub-Inspectors (Operator) and the Petitioner No. 6 was appointed as the HC/Operator under Mizoram Police Radio Organisation in 1995/96 and since then, they have been working in the said capacities. According to the Petitioners, all of them being graduate, are eligible for direct recruitment to the post of Sub-Inspector (Operator). The Government of Mizoram, on 30.06.2008, made a notification for direct recruitment, for filling up of 72 vacancies of S.I. (Unarmed Branch). On the basis of the said advertisement, recruitment process initiated to fill up those vacancies, a select list of the qualified candidates was prepared and the said 72 vacancies were filled up. Alter filling up the said vacancies, out of the said select list the private Respondents were appointed as Section 1. (Operator) and thus six vacant posts of Section 1. (Operator) were filled up without notifying the vacancies and without conducting competitive examination as per the provisions laid down by the Manual. 4. Being aggrieved, the Petitioners submitted representation before the Government, which was also not considered be the Government. In view of the above, the Petitioners have come up with this writ petition, challenging the appointment of the private Respondents as illegal and for setting aside the same. 5. In spite of service of notices, the private Respondents failed to contest the Petitioners claim. The state Respondents, by filing an affidavit-in-opposition, stated that the private Respondents were appointed as Sub-Inspector (Operator) from the valid panel of Sub-Inspector (Unarmed Branch), and the said panel was prepared on the basis of the valid recruitment conducted on 28.08.2008. It is contended t lat. The state Respondents, by filing an affidavit-in-opposition, stated that the private Respondents were appointed as Sub-Inspector (Operator) from the valid panel of Sub-Inspector (Unarmed Branch), and the said panel was prepared on the basis of the valid recruitment conducted on 28.08.2008. It is contended t lat. as per the Mizoram Police Manual read with the notified Recruitment Rules, the procedure for direct recruitment of Sub-Inspector (Operator) as well as the direct recruitment of Sub-Inspector (Unarmed Branch), the authority, instead of conducting a separate recruitment only for filling up 6 (six) vacant posts, took steps for filling up the said vacancies from the panel prepared for selection of Sub-Inspector (Unarmed Branch). It is also stated that the 1 come Department asked for permission from the Government for filling up the said posts of Sub-Inspector (Operator), against direct Quota, from the on going recruitment process of Sub-Inspector c f Police (Unarmed Branch) to meet urgent requirement of staff under Mizoram Police Radio Organisation and that approval of the Government to fill up the said posts of Sub-Inspector (Operator) was obtained. 6. The learned Counsel, appearing for the Petitioners, drawing my attention to the provisions of Rules 359, 472, 473, 474 and 477 of the Manual. has submitted that the Rules regarding the recruitment of Sub-Inspector and fie Rule regarding direct recruitment to tie post of Sub-Inspector (Operator)/Radio Mechanic being different, the authority, in order to fill up the posts of Sub-Inspector Operator), should have issued separate advertisement by notifying the vacancies and also conduct separate recruitment process. It is also submitted that the authority, while making the advertisement for recruitment of candidates to fill up the posts of Sub-Inspector (Unarmed Branch), had no power to appoint. Sub-Inspector (Operator) out of the select first prepared for selection of candidate for filling up the post of Sub-Inspector (Unarmed Branch). It is further submitted that the Petitioners, being graduate in-service candidates, were expecting to appear in the direct recruitment process, to be held for filing up the vacancies of Sub-Inspector (Operator), and that the appointment of the private Respondents, out of the select list prepared for filling up the vacancies of Sub-Inspector (Unarmed Branch) that too without notifying the vacancies, deprived the Petitioners from offering their candidature for the posts of Sub-Inspector (Operator) and thus violation of natural justice and much prejudice was caused to the Petitioners. 7. 7. The learned Counsel appearing for the Petitioner concluded the argument by submitting that the appointment of the Petitioners, being made without any notification regarding the vacancies and also without holding any competitive examination, was bad in law and that the appointment made by the Assistant Inspector General-1 (AIG-1) of Police was in clear violation of the provisions prescribed by Rule 477(a). It is submitted that under the said provisions, the appointment is to be made by the Superintendent of Police, Wireless, after the list of candidates recommended is approved by the Director General of Police. It is further submitted that the Police Establishment Board had no authority to make any recommendation for appointment and as such, the appointment made in favour of the private Respondents, on the basis of the recommendation of the Police Establishment Board, was not lawful. Contesting the said argument, advanced by the learned Counsel for the Petitioners, the learned Government Advocate appearing for the State Respondents has submitted that the authority committed no illegality in filling up the 6 vacant posts of Sub-Inspector (Operator) and the said posts were filled up after receiving necessary approval from the Government. Mr. N. Sailo, learned Addl. Advocate General, Mizoram, appearing for the State Respondents, referring to the provision of Section 477(3a) and the provisions of Rule 359 of the Mizoram Police Manual, has submitted that the minimum qualifying age for direct recruitment to the post of Sub-Inspector (Operator) is 18 years while the maximum qualifying age is 28 years and as such, the Petitioners being in-service candidate, they exceeded the maximum qualifying age for being eligible to apply for the direct recruitment. Rule 477(3a) of the Manual, provides that the method and process of recruitment for direct recruitment of Sub-Inspector (Operator)/Radio Mechanic shall be same as the direct recruitment of Sub-Inspector as stated under Rule 359 of the Manual. Rule 359(1)(C) provides that the candidate must not be less than 18 years but not more than 28 years on the date of notification of the vacancies. The learned Advocate General, Mizoram, referring to the Gazette notification regarding Police Establishment Board submitted that as per the said notification, the Police Establishment Board was constituted to consider all transfers, postings, promotions and other service related matters of officers below the rank of Deputy Superintendent of Police. The learned Advocate General, Mizoram, referring to the Gazette notification regarding Police Establishment Board submitted that as per the said notification, the Police Establishment Board was constituted to consider all transfers, postings, promotions and other service related matters of officers below the rank of Deputy Superintendent of Police. The learned Additional Advocate General, Mizoram, contended that, giving the wider meaning to the said notification, the appointment of officers not below the rank of Deputy Superintendent of Police was within the domain of Police Establishment Board. It is also submitted on behalf of the State Respondents that under the provisions of Rule 359(4), the Director General of Police is empowered to constitute a Selection Board with the officers mentioned therein and the recommendation for appointment is to be made by the said Board. 8. Having heard the learned Counsels, appearing for both the parties and the considering the materials available on record, it appears that the appointment of the private Respondents were made without separately notifying the vacancies and without holding any competitive examination for the said posts. It is also found that appointment was made by the AIG-1 instead of Superintendent of Police. As per Rule 477(4), the Superintendent of Police, Wireless is the authorized person for making appointment to the post of Sub-Inspector (Operator)/Radio Mechanic. 9. This being a writ petition, filed by some of the private persons, who are presently working as Assistant Sub-Inspector (Operator) i.e., Petitioner Nos. 1 to 5 and HC/Operator i.e., Petitioner No. 6, it is required to be examined as to whether the Petitioners have been prejudiced or any violation of natural justice has been caused to the Petitioners by the impugned appointments. 10. In the advertisement dated 30th June, 2008, while mentioning the age limit it was provided that the age limit would be relaxed by 5 years for SC and ST candidates. In the said notification, it was mentioned that the minimum age should be 18 years while maximum age should be 23 years (relaxable by 5 years for ST and SC) as on 1.07.2008. The Petitioners, in the writ petition at paragraph No. 2, stated that all of them were graduate and were eligible for direct recruitment to the post of S.I. (Operator). Except mentioning that all of them were graduate, no other particulars were given to show, in what manner they were qualified for appearing in the direct recruitment. The Petitioners, in the writ petition at paragraph No. 2, stated that all of them were graduate and were eligible for direct recruitment to the post of S.I. (Operator). Except mentioning that all of them were graduate, no other particulars were given to show, in what manner they were qualified for appearing in the direct recruitment. Rule 359(1)(C) states that the minimum age prescribed for Sub-Inspector is 18 years while the maximum age is 28 years on the date of notification of the vacancies. The Petitioners being in-service candidates, even if they entered the service at the age of 18 years, in the meantime, they have crossed the maximum age limit i.e., age of 28 years. The Petitioner No. 2, who filed the affidavit in support of the writ petition stated that his age, on 07.11.2008, was about 39 years. Similarly, the Petitioner No. 1, who submitted the rejoinder affidavit stated that his age was about 36 years on 08.09.2009. In view of the above, it appears that both the Petitioner Nos. 1 and 2 have already crossed the age of 36 years. The learned Government Advocate further submitted that the Respondent Nos. 3 and 6 also crossed the age of 36 years on date. It is submitted that as per the service record, the age of Petitioner No. 4 was 32 years as on 2008 and the age of the Petitioner No. 5 would be 33 years. From the above it appears that, though the learned Counsel appearing for the Petitioners submitted that there was provision for age relaxation in case of SC and ST candidates, there is nothing on record to show that the age of the Petitioners was relaxed by granting the benefit of relaxation by 5 years. In their writ petition, the Petitioners no where stated that from the point age they were qualified to appear in the direct recruitment. Hence I find no substance in their plea that they were qualified for the said posts. Even if the benefit of relaxation of age is granted, then also the Petitioner Nos. 1, 2, 3 and 6 having already crossed the age of 36 years cannot come within the qualifying zone for direct recruitment. Hence I find no substance in their plea that they were qualified for the said posts. Even if the benefit of relaxation of age is granted, then also the Petitioner Nos. 1, 2, 3 and 6 having already crossed the age of 36 years cannot come within the qualifying zone for direct recruitment. Considering the entire facts and circumstances of this case and the age factor of the Petitioners, I am inclined to hold that the Petitioners were not qualified for appearing in the process for direct recruitment as on 30th June, 2008 i.e., the date of issuing notification for recruitment of Sub-Inspector (Unarmed Branch). As the Petitioners have already exceeded the maximum qualifying age as prescribed by Rule 359(1)(C), no prejudice or injustice appears to be caused to the Petitioners by appointing the private Respondents on the basis of the recruitment process held for selection of candidates for filling up the vacant post of S.I. (UB). 11. In view of the above discussion, I do not find that the Petitioners acquired the right to approach this Court by invoking the jurisdiction under Article 266 of the Constitution of India. Accordingly, I do not find merit in this writ petition to grant the relief prayed for. 12. In view of the above this writ petition is dismissed. Petition dismissed.