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2010 DIGILAW 353 (GAU)

B. C. Liana @ B. C. M. Liana v. State of Mizoram

2010-05-20

H.BARUAH

body2010
JUDGMENT H. Baruah, J. 1. By this writ petition under Article 226 of the Constitution of India, the Petitioner has sought for a direction to the Respondent authorities, Respondent Nos. 1 to 4 in particular to absorb and appoint him as Peon-cum-Chowkidar in the Government Bethel High School, Pangkhua from the date of appointment of private Respondent No. 5 with all service benefits after setting aside the officer order issued under Memo No. A-12011/l/2009-DTE(EDN) dated 7.8.2009 whereby and whereunder Respondent No. 5 had been temporarily appointed in the lone Grade-IV post as Peon-cum-Chowkidar created by the Government after provincialisation of the said school. 2. The facts involved in this writ petition are as follows: Bethel High School, Pangkhua was initially a private school, which, in the year 1998 received grant-in-aid under the Ad hoc Recurring Grants-In-Aid for General Maintenance of School Rules, 1997 (Annexure 1) vide notification No. B.17011/16/98-EDN dated 24.3.1998 (Annexure 2) issued by Respondent No. 2. The Managing Committee of the said school on 2.6.2003 issued an advertisement calling for applications from persons for appointment to a post of Grade-IV and after conducting the interview of the candidates, the Petitioner herein was appointed as Peon vide order under Memo No. A-11020/2/03-MC(PK)APPT/14 dated 1.9.2003 issued by the Chairman of the Managing Committee (Annexure 3) being found him fit and qualified for appointment to the said post. Appointment of the Petitioner was later approved by the District Education Officer, Lawngtali District vide office order under Memo No. A-11013/1/02-DEO(LTI) dated 15.6.2007 (Annexure 4). The Governor of Mizoram in exercise of power conferred under proviso to Article 309 of the Constitution, in the year 1994, in order to ensure sound financial basis to effect better administrative control of the Middle and High Schools in the State of Mizoram framed the Mizoram Middle Schools and High Schools (Provincialisation) Rules, 1994 and the same was notified in the official gazette vide notification No. B. 13016/9/94-EDN dated 10th October, 1994, which later received amendment in the year 2002. Under the Provincialisation Rules, 10(ten) ad hoc aided high schools and 36(thirty-six) ad hoc aided middle schools were provincialised with effect from 1.4.2008. Of the high schools so provincialised, Bethel High School, Pangkhua is one of the same and its name appears at SI. No. 10 of the notification No. B. 17011/3/2002-EDN(Vol-II)/2 dated 1.4.2008 (Annexure 7). Under the Provincialisation Rules, 10(ten) ad hoc aided high schools and 36(thirty-six) ad hoc aided middle schools were provincialised with effect from 1.4.2008. Of the high schools so provincialised, Bethel High School, Pangkhua is one of the same and its name appears at SI. No. 10 of the notification No. B. 17011/3/2002-EDN(Vol-II)/2 dated 1.4.2008 (Annexure 7). The high schools and the middle schools indicated in Annexure 7 were provincialised on account of fulfillment of the prerequisites under Rule 4(1) and 4(2) of the Rules. After provincialisation of the school aforesaid, Respondent No. 2 vide notification No. A.11013/1/2008-EDN dated 3.9.2008 (Annexure 8) created 301 posts for absorption existing teaching and non-teaching staff of the newly provincialised schools. By the aforesaid notification, 1(one) post of Headmaster, 4(four) post of teachers, 1(one) post of LDC and 1(one) post of Grade-IV were created for Bethel High School, Pangkhua. 3. Pursuant to the creation of the posts as indicated above for the schools, Respondent Nos. 1 to 4 had taken necessary steps for absorption of all the existing incumbents of teaching and non-teaching staff of such provincialised schools after necessary screening conducted by the Departmental Promotion Committee ('DPC'). Vide notification under Memo No. A. 12030/1/2004-EDN dated 12.12.2008, office order under Memo No. B.13015/4/2008-DTE(EDN) dated 3.3.2009, the headmasters, teachers and LD Cs respectively were absorbed against each provincialised high schools. However, Petitioner who had been working in Bethel High School, Pangkhua as Grade-IV was not absorbed to the post created vide notification dated 3.9.2008 (Annexure 8). On account of non-absorption of the writ Petitioner, the Chairman, Managing Committee of the Bethel High School, Pangkhua wrote a letter under Memo No. A. 11020/l/08-BHS(P) dated 7.5.2009 to Respondent No. 3 requesting him to absorb and appoint the writ Petitioner to the Grade-IV post of the said school. The State Respondents, thereafter, convened a DPC for personal interview of the eligible candidates for filling up the newly created Grade-IV post and issued call letters. The writ Petitioner herein was also directed to appear for personal interview by Respondent No. 3 vide letter No. A.12011/l/2009-DTE(EDN) dated 1.6.2009 (Annexure 13). It would be apposite to mention that Respondent No. 4 also had written a letter to Respondent No. 3 requesting him to call the Petitioner for interview for filling up the Grade-IV post in view of rendering his service in the school prior to provincialisation. It would be apposite to mention that Respondent No. 4 also had written a letter to Respondent No. 3 requesting him to call the Petitioner for interview for filling up the Grade-IV post in view of rendering his service in the school prior to provincialisation. The Petitioner thereafter appeared before the Departmental Promotion committee for personal interview conducted by the State Respondents for filling up the Grade-IV post but the Petitioner was not recommended for absorption in the post created vide Annexure 8 in Bethel High School, Pangkhua, in spite of the provisions of absorption of the existing incumbents in the Provincialisation Rules, 1994. Instead private Respondent No. 5 had been appointed against the Grade-IV post created for Bethel High School, Pangkhua vide impugned order dated 7.8.2009 (Annexure 15). It is further contended that the writ Petitioner being an existing incumbent of the Bethel High School, Pangkhua, newly provincialised, he was required to "be absorbed in the Grade-IV post by virtue of Rule 6 of the Mizoram Middle Schools and High Schools (Provincialisation) Rules, 1994. The procedure adopted by the State Respondents for filing up the Grade-IV post in the schools after calling applications from various candidates is foreign to the Provincialisation Rules, 1994 and, therefore, appointment of private Respondent No. 5 in the post, it is contended, is not in accordance with Rules, 1994. It is further contended by the writ Petitioner that he was/is existing incumbent of the school since he (Petitioner) had been offering his service as Peon-cum-Chowkider in the School way back 2003 after receipt of the grants-in-aid by the said school. The Chairman of the Managing Committee having found him (Petitioner) suitable appointed him as Peon-cum-Chowkidar and when such appointment had been approved by the District Education Officer, Lawngtlai he was/is out and out an existing incumbent under the category of non-teaching staff and, therefore, by virtue of the provisions of Rule 6 he ought to have been absorbed by the State Respondents in the Grade-IV post created by the Government vide Annexure 8. The manner in which Respondent No. 5 had been appointed in the Grade-IV post in the said school is not approved and beyond the scheme of Provincialisation Rules, 1994. The State Respondents, thus, illegally excluded the writ Petitioner from the existing incumbents of the non-teaching staff of the Bethel High School, Pangkhua in violation of the provisions of the Rules. The manner in which Respondent No. 5 had been appointed in the Grade-IV post in the said school is not approved and beyond the scheme of Provincialisation Rules, 1994. The State Respondents, thus, illegally excluded the writ Petitioner from the existing incumbents of the non-teaching staff of the Bethel High School, Pangkhua in violation of the provisions of the Rules. It is also contended that all the existing teaching and non-teaching staff of the said school including others have been absorbed per provision of Rule 6 of the Rules, 1994 except the Petitioner in Grade-IV post of the Bethel High School, Pangkhua. Absorption of Respondent No. 5 in the Grade-IV post is, thus, illegal, whimsical and discriminatory. Hence, this writ petition. 4. This writ petition has been resisted by the State Respondents by filing counter affidavit. The stand taken by the State Respondents in their counter affidavit is that absorption of the existing incumbents of the provincialised schools to the respective post is subject to their suitability for appointment in Government service in consonance with the corresponding and relevant recruitment rules framed by the department concerned as is in force on the effective date as may be determined by the competent Departmental Promotion Committee subject to availability of sanctioned post for such provincialised school. The process of absorption of the existing incumbents in the school including Bethel High School, Pangkhua could be started only after the State Government conveyed creation and promotion for filling up the Grade-IV post in the schools vide notification No. A. 11013/1/2008-EDN dated 3.9.2008 (Annexure 8) and accordingly for filling up the 10(ten) Grade-IV post for 10 provincialised schools, Employment Exchange were notified for sponsoring candidates under the provisions of Vacancy Act, 1959. Employment Exchanges sponsored as many as 595 candidates including the Petitioner. Out of 595 candidates, 195 candidates including the Petitioner appeared before the DPC for personal interview and the DPC after assessment of suitability of each of the candidates, recommended 10(ten) candidates for appointment to the post of Grade-IV in the high schools including Bethel High School, Pangkhua. Since Rule 6 of the Provincialisation Rules, 1994 mandates the absorption of the existing incumbents subject to suitability for appointment in the service in accordance with the relevant recruitment rules such procedure had been adopted for appointment of the suitable candidates through DPC from among the candidates sponsored by the Employment Exchange. Since Rule 6 of the Provincialisation Rules, 1994 mandates the absorption of the existing incumbents subject to suitability for appointment in the service in accordance with the relevant recruitment rules such procedure had been adopted for appointment of the suitable candidates through DPC from among the candidates sponsored by the Employment Exchange. Therefore, recommendation of DPC in not recommending the Petitioner for appointment to the Grade-IV post in the Bethel High School, Pangkhua cannot be called in question since such recommendation was made in accordance with the relevant rules. It is further contended by the State Respondents that out of 10(ten) existing incumbents only 8(eight) were found fit and recommended for appointment to the post of Grade-IV by DPC while 2(two) incumbents of whom the Petitioner was one of them was not found fit by the DPC for such appointment. It is contended that the State Respondents have not violated the provisions of Provincialisation Rules, 1994. 5. In reply to this stand taken by the State Respondents in their counter affidavit, the writ Petitioner has contended that the selection of the candidates for appointment to the Grade-IV post in the schools including Bethel High School, Pangkhua assumes the character of direct recruitment which has never been intended by the Provincialisation Rules, 1994. When a distinct and definite procedure is available for absorption to the post from the existing incumbent after provincialisation of the school, adherence of a different method is against the Rules, Rule 6 in particular. The Respondents, thus, illegally allowed a large number of candidates to participate in the personal interview along with the Petitioner for filling up the post in Grade-IV. Appointment so made in Grade-IV post adopting a different method other than the method recognized by the Rules cannot legally sustain and liable to be set aside and quashed. 6. We heard Mr. C. Lalramzauva, learned Counsel for the Petitioner as well as Ms. Dinari T. Azyu, learned Government Advocate for the State Respondent Nos. 1 to 4. Private Respondent No. 5, however, has not contested the writ petition by filing counter. 7. There is no dispute at the bar in regard to provincialisation of Bethel High School, Pangkhua vide notification No. B. 17011/3/2002-EDN(Vol.II)/2 dated 1.4.2008 (Annexure 8). By this notification altogether 10(ten) Nos. of high schools and 36(thirty-six) Nos. 1 to 4. Private Respondent No. 5, however, has not contested the writ petition by filing counter. 7. There is no dispute at the bar in regard to provincialisation of Bethel High School, Pangkhua vide notification No. B. 17011/3/2002-EDN(Vol.II)/2 dated 1.4.2008 (Annexure 8). By this notification altogether 10(ten) Nos. of high schools and 36(thirty-six) Nos. of middle schools were provincialised, which earlier stood in the category of ad hoc aided high school. Rule 6 of the Provincialisation Rules, 1994 provides provisions for absorption of teaching and non-teaching staff of the provincialised school. For better appreciation, it may be reproduced below: 6. By this notification altogether 10(ten) Nos. of high schools and 36(thirty-six) Nos. of middle schools were provincialised, which earlier stood in the category of ad hoc aided high school. Rule 6 of the Provincialisation Rules, 1994 provides provisions for absorption of teaching and non-teaching staff of the provincialised school. For better appreciation, it may be reproduced below: 6. All existing incumbents of the provincialised school in which they were serving on the effective date, shall be absorbed in the Government service in suitable ranks or grades with effect from the said date, subject to their suitability for appointment in government Service in consonance with the corresponding and relevant Recruitment Rules framed by the Department concerned and in force on the effective date, as may be determined by the competent Departmental Promotion Committees constituted for various categories of Government employees by the Government of Mizoram and subject to the availability of sanctioned posts for such/provincialised schools: Provided that 50 per cent of the posts of Headmaster shall be filled in by absorption of existing incumbents of the post of Headmaster of the provincialised schools, and remaining 50 per cent of the posts of headmaster shall be filled in by promotion of the eligible teachers of the Government High/Middle Schools as the case may be in accordance with the Recruitment Rules in force on the effective date: Provided further that the existing headmasters of the provincialised Schools shall not eligible to be so absorbed unless they have already put in at least 5(five) years teaching experience in any recognized school or schools: Provided also that the teaching and the non-teaching staff of the provincialised Schools so absorbed shall not be subjected to the upper age limit prescribed in the relevant recruitment rules." By an amendment in the year 2002 the proviso to Rule 6 of Provincialisation Rules, 1994 has been substituted with the following, which can be read as under: "Provided that the upper age limit prescribed in the relevant recruitment Rules shall cause no bar to any of the teaching and non-teaching staff of the provincialised Schools so absorbed: Provided further that the existing Headmasters, who are not appointed Headmasters under this rule shall be appointed teachers in their respective provincialised Schools and shall be deemed to be employees of the Government with effect from the date of Provincialisation of the Schools subject to their suitability in consonance with the relevant recruitment rules as may be determined by the Departmental Promotion Committee." By this amendment Clause (b) of Rule 7 has also been substituted with the following. It may be reproduced as under: "(b) For the purpose of fixation of inter se-seniority the services of the teaching and non-teaching staff of provincialised schools shall be counted with effect from the date of provincialisation of the school based on merit drawn by the Selection Committee, i.e., Mizoram Public Service Commission or Departmental Promotion Committee, as the case may be. In the absence of recommendation of the Selection Committee, the seniority in the past service immediately preceding the provincialisation of the concerned School shall be taken into account as a genuine seniority for the said purpose." 8. Mr. C. Lalramzauva, learned Counsel for Petitioner taking recourse to the provisions of Rule 6 submitted that the writ Petitioner being one of the existing incumbents of the category of non-teaching staff of Bethel High School, Pangkhua, whose appointment had been approved by the District Education Officer, Lanwngtlai vide Annexure 4 initially appointed by the Chairman of the Managing Committee of the school in the year 2003 being found him suitable for the purpose, ought to have been absorbed in the Grade-IV post after provincialisation of the school under the provision of Rule 6 of the Rules 1994 of course subject to his suitability to such appointment. Without testing, assessing of the suitability of the writ Petitioner by the Respondents either by them or by DPC before adhering to a different procedure other than the procedure indicated in Rule 6, denial of absorption of the writ Petitioner to the Grade-IV post of the Bethel High School, Pangkhua is illegal. It is submitted by Mr. C. Lalramzauva that though the Respondents claimed his unsuitability for absorption before adopting the procedure for direct recruitment by calling 595 candidates that too sponsored by Employment Exchange including the Petitioner in their counter affidavit, nothing virtually has been placed by the Respondents in regard to unsuitability of the writ Petitioner for absorption. A naked claim of unsuitability of the writ Petitioner without placing any documents whatsoever, such claim cannot subsists to reject the claim of absorption of the writ Petitioner by virtue of Rule 6. When it is not denied by the Respondents that writ Petitioner was/is not the existing incumbent of the Bethel High School, Pangkhua, refusal of absorption per provision of Rule 6 of the writ Petitioner in the Grade-IV post minus suitability test as violative the Rule 6 of the Rules. When it is not denied by the Respondents that writ Petitioner was/is not the existing incumbent of the Bethel High School, Pangkhua, refusal of absorption per provision of Rule 6 of the writ Petitioner in the Grade-IV post minus suitability test as violative the Rule 6 of the Rules. In the Rules it is nowhere indicated rather incorporated that over and above the Rule 6 a direct recruitment process can also be adopted rather adhered to for absorption. Mr. C. Lalramzauva, therefore, argued that adoption of a different procedure other than the procedure indicated in Rule 6 of the Rules for filling up the Grade-IV post in the schools is never sanctioned rather provided. It is submitted by Mr. C. Lalramzauva, learned Counsel for the writ Petitioner that the Department of school education does not have a separate recruitment rules for Grade-IV post and, therefore, the suitability of a particular candidate or an existing incumbent is to be assessed, scrutinized per provision of the Rules called Mizoram (Class IV Posts) Recruitment Rules, 1975 wherein qualification, disqualification, training, reservation, etc., have been provided including age. For filling up the post of Peon, Chowkidar, Dak runner, Jugali, Animal Attendant, Mali, Sweeper, Orderly and other similar post in Class-IV the essential educational and other qualifications have been indicated in Column 7 of the schedule. In column 6 of the schedule the qualifying age has been indicated. Writ Petitioner apparently possesses the requisite qualifications as indicated in Column 7 of the schedule for Class-IV post under the Government of Mizoram. By Amendment Rules, 2000 to the Rule 6 of the Provincialisation Rules, 1994, the upper age limit prescribed is done way with for the purpose of absorption of teaching and non-teaching staff of the provincialised school. In view of educational qualifications and other qualifications that possesses by the writ Petitioner and relaxation made by Provincialisation (Amendment) Rules, 2002 it was submitted by Mr. C. Lalramzauva, learned Counsel for the Appellant that alleged non-suitability of the writ Petitioner is not writ large on the basis of which a different procedure could be adopted for recruitment to the Grade-IV post can be approved. 9. C. Lalramzauva, learned Counsel for the Appellant that alleged non-suitability of the writ Petitioner is not writ large on the basis of which a different procedure could be adopted for recruitment to the Grade-IV post can be approved. 9. In order to enlarge the scope of filling up of the lone post in Grade-IV of Bethel High School, Pangkhua provincialised vide notification as indicated above by direct recruitment by calling candidates through Employment Exchanges, Respondent authorities failed to place any document whatsoever that the writ Petitioner turned unsuccessful while screening held for absorption to the post per Rule 6 of the Provincialisation Rules, 1994. 10. In support of the contention of the writ Petitioner Mr. C. Lalramzauva, learned Counsel also submitted that vide notifications (Annexure 9, 10 and 11) all the existing headmasters, teachers and LD Cs of the provincialised ad hoc aided high schools have been absorbed including Bethel High School, Pangkhua having found all of them suitable for absorption and appointment to the post, as indicated therein. But the Respondent authorities refused to take resort to the provisions of Rule 6 of the Provincialised Rules, 1994 for absorption of the existing incumbents of Grade-IV to the Grade-IV posts of the schools. By adopting a different method it was submitted by Mr. C. Lalramzauva, that a bias is writ large in the acts and omission of the Respondent authorities. Inviting 595 candidates for personal interview for filling up the post of Grade-IV in the schools [10 post, 1(one) post in the each school] out of which 195 candidates allegedly appeared for personal interview, the Respondent authorities exhibited a wish to violate the provisions of Rule 6 of the Provincialisation Rules, 1994 and adopt pick and choose policy in filling up the Grade-IV post in the school. Suitability test of existing incumbent is not required to be deviated from for the purpose of absorption of the existing incumbent in the post but to undo the suitability of the existing incumbent there must be some basis in order to actuate the court to accept the version. Claim of the Respondents that compulsory notification under Vacancy Act, 1959 is a requirement in the process of absorption to Grade-IV post in the newly 10(ten) provincialised high school by sponsoring candidates from Employment Exchange is outside the scheme of the Provincialisation Rules, 1994. Claim of the Respondents that compulsory notification under Vacancy Act, 1959 is a requirement in the process of absorption to Grade-IV post in the newly 10(ten) provincialised high school by sponsoring candidates from Employment Exchange is outside the scheme of the Provincialisation Rules, 1994. Had there been any adoption of process for assessing the suitability of the existing incumbent to the Grade-IV post in the schools before adhering to the method of selection by the Respondents, said method would have been appropriate or acceptable in view of assessment of unsuitability of the existing incumbents to the Grade-IV post earlier made. Since no such method had been adopted, the method which had been adopted on the basis of which Respondent No. 5 had been appointed cannot be approved per Rule 6 of the Provincialisation Rules, 1994. Mr. C. Lalramzauva, learned Counsel for the writ Petitioner, therefore, in view of the facts situation and the provisions of the Rules contended that the Respondent authority illegally excluded the writ Petitioner, an existing incumbent from being absorbed in Grade-IV post in Bethel High School, Pangkhua and appointed private Respondent No. 5 illegally in violation of Rule 6 of the Provincialisation Rules, 1994. Such appointment of the Respondent No. 5, therefore, it was contended, cannot legally sustain and warrants interference. 11. Ms. Dinari T. Azyu, learned Government Advocate appearing for and on behalf of the State Respondents contended inter alia that DPC while screening the suitability of the writ Petitioner for absorption in the Grade-IV post of Bethel High School, Pangkhua did not find him suitable for the post and accordingly for the purpose of filling up of the post in the school sponsoring of candidates from Employment Exchanges had been sought for personal interview, selection and appointment. Ms. Dinari T. Azyu, learned Government Advocate, therefore, contended that the method for selection and appointment is not violative of the Rule 6 of the Provincialisation Rules, 1994 and, therefore, appointment of private Respondent No. 5 cannot be called in question. In the counter affidavit it is nowhere shown supported by documents that a suitability test of the existing incumbents including the Petitioner to Grade-IV post of all the 10(ten) newly provincialised school had been conducted before adhering to the method of selection and appointment as had been adopted, therefore, claim of the Respondents failed to invite the attention of this Court. In absence of placement of requisite documents for conducting such a test is beyond the scope of acceptance. 12. When the Provincialisation Rules, 1994 provides a particular method/process for absorption of the existing incumbents of a school which are provincialised vide notification No. B.17011/3/2002-EDN(Vol.II)/2 dated 1.4.2008 diversion therefrom and adoption of a different method appears a violation of the rules framed for the purpose of absorption. The writ Petitioner who provided his services for a considerable length of time till the date of provincialisation of his school (Bethel High School, Pangkhua) after his appointment in the year 2003 approved by District Education Officer, Lawngtlai, his exclusion from absorption to the post held by him earlier and created by the Government after provincialisation without making attempt under the Rule 6 of the Provincialisation Rules, 1994 is illegal and violative of Articles 14 and 16 of the Constitution. Method of selection and appointment adopted by the Respondents through DPC is foreign to the Provincialisation Rules, 1994, selection as well as appointment made under that method would be illegal. 13. Having taken care of the facts contended by the writ Petitioner, the stand taken by the State Respondents and the relevant rules and the annexures to the writ petition, counter affidavit, I am of the considered view that the writ Petitioner has been illegally excluded from being absorbed against the Grade-IV post created vide notification No. A.11013/1/2008-EDN dated 3.9.2008 (Annexure 8) and private Respondent No. 5 has been illegally appointed by adhering a different method other than the method approved by Rule 6 of the Provincialisation Rules, 1994. There appears merit in the writ petition, which needs to be allowed. 14. In the result, the writ petition is allowed. The office order issued under Memo No. A.12011/l/2009-DTE(EDN) dated 7.8.2009 is set aside and quashed. Respondent authorities are directed to absorb and appoint the writ Petitioner in the Grade-IV post held by Respondent No. 5 in the Bethel High School in the scale prevalent at that time with all other allowance admissible thereto from the date of appointment of Respondent No. 5. Respondent authorities may, however, retain the services of Respondent No. 5 in Grade-IV if situation demands in a vacant post, if available, if not by creating a supernumerary post for the purpose. Writ petition accordingly stands disposed of. No cost. Petition allowed.