Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 439 (GAU)

H. Lalhrilmawia v. State of Mizoram

2014-04-10

LANUSUNGKUM JAMIR

body2014
Lanusungkum Jamir, J.—Heard Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel for the petitioners as well as Mr. Lalsawirema, learned Government Advocate for the respondent Nos. 1-3 and Mr. N. Sailo, learned senior counsel assisted by Mrs. Dinari T. Azyu, learned counsel for the respondent No. 4. By this writ petition, the petitioners are challenging the legality and validity of the inter se seniority of Circle Audit Officers (CAEO) under the School Education Department issued by the order dated 13th April, 2012 and also the office orders dated 4.10.1999 and 12.11.2002 by which the petitioner Nos. 1 and 2 have been shown to have been absorbed in the vacant post of Circle Adult Education Officer (hereinafter referred to as CAEO) with retrospective effect from the date of their transfer and posting to the said post from the post of Supervisor. 2. The petitioner Nos. 1 & 2 along with others were appointed temporarily as Supervisor, Rural Functional Literacy Projects (Adult Education) by an office order dated 8.1.1983 under the Centrally Sponsored Scheme (CSS). 3. The respondent No. 4 was appointed as Officiating Circle Adult Education Officer on compassionate ground by order dated 12th February, 1985 under the Directorate of Education, Government of Mizoram. Thereafter, by another order dated 25th June, 1986, the respondent No. 4 who was serving as Officiating CAEO was appointed as CAEO. The respondent Nos. 5 & 6 were appointed temporarily as Supervisor, Rural Functional Literacy Project (Adult Education) by a common order dated 12th February, 1985 under the Centrally Sponsored Scheme. Thereafter, the respondent No. 5 was temporarily transferred and posted in the office of the District Adult Education Officer, Lunglei as CAEO (Dawrpui Circle) by an order dated 3 November, 1988. The respondent No. 6 was also transferred and posted as CAEO (Lunglei Circle) w.e.f. 1st March, 1992 by an office order dated 26th February, 1992. The respondent No. 7, on the recommendation of DPC (Group 'C') for Education Department, was appointed temporarily as Officiating Supervisor, RFLP and posted in the office of the Project Officer, RFLP, Saiha (Saiha Circle) by office order dated 16th February, 1989. In the meantime, the Mizoram Education and Human Resources Department (Group 'C' post) Recruitment Rules, 1989 was published in the Mizoram Gazette on 16.01.1989 (hereinafter referred to as the Recruitment Rules of 1989). In the meantime, the Mizoram Education and Human Resources Department (Group 'C' post) Recruitment Rules, 1989 was published in the Mizoram Gazette on 16.01.1989 (hereinafter referred to as the Recruitment Rules of 1989). At Annexure-1 to the said Recruitment Rules, the post of Circle Adult Education Officer/Supervisor, RFLP are shown to be of equivalent rank. 4. By an order dated 14th May, 1991, the petitioner No. 2 was transferred and posted as Circle Education Officer in the office of the District Adult Officer, Lunglei w.e.f. 1st June, 1991. The respondent No. 7 was also transferred and posted in the office of District Adult Education Officer, Saiha as CAEO with effect from the date of joining duty by an office order dated 25th May, 1994. 5. By office order dated 4th October, 1999, the petitioner No. 1 who was serving as Supervisor, RFLP was absorbed in the vacant post of CAEO w.e.f. 10.2.1997, under the Directorate of School Education (Adult Education Wing), Government of Mizoram. The petitioner No. 2 and the respondent Nos. 6 & 7 who were serving as Supervisors were also absorbed to the post of CAEO under School Education (Adult Education Wing) with retrospective effect by an office order dated 12th November, 2002. By the said order, the effective date of absorption in respect of the petitioner No. 2 was 1.6.1991 and in respect of the respondent Nos. 6 & 7 the effective dates were shown as 1.3.1992 and 13.3.1990 respectively. The Directorate of School Education, through the respondent No. 3, by office order dated 28th June, 2001 circulated the seniority of CAEO under the School Education Department Wing, wherein petitioner Nos. 1 & 2 were shown senior to the respondent Nos. 4-7. 6. By another office order dated 23rd July, 2010, the respondent No. 3 circulated the tentative seniority list of CAEO under the School Education Wing, the petitioner Nos. 1 & 2 were shown senior to the respondent Nos. 4-7. Therein, the date of appointment to the present grade was shown as 25.1.1983 in respect of the petitioner No. 1 and 22.1.1983 in respect of petitioner No. 2. As regards the respondent Nos. 4-7, their dates of appointment to the present grade were shown as 25.6.1986, 1.3.1985, 12.2.1985 and 12.3.1990 respectively. 7. 4-7. Therein, the date of appointment to the present grade was shown as 25.1.1983 in respect of the petitioner No. 1 and 22.1.1983 in respect of petitioner No. 2. As regards the respondent Nos. 4-7, their dates of appointment to the present grade were shown as 25.6.1986, 1.3.1985, 12.2.1985 and 12.3.1990 respectively. 7. Thereafter, the respondent No. 3 issued another office order dated 28th September, 2011 reproducing the tentative seniority list of CAEO under the School Education which was provisionally fixed and conveyed by the Administrative Department and as advised by the DP & AR. By the said order, any officer aggrieved was allowed to submit representation within a period of 30 (thirty) days from the date of issue of the said order. In the Annexure appended thereto, the placements of the petitioners vis-a-vis, the private respondents were shown as under:-- Sd/-(F. LALHLUNA)Joint Director of School EducationMizoram: Aizawl. 8. Being aggrieved by the office order dated 28th September, 2011, the petitioner No. 1 submitted a representation dated 8.10.2011 before the respondent No. 3 against the said tentative seniority list contained in the office order dated 20th September, 2011. 9. By another order dated 25th January, 2012, the respondent No. 3 issued the provisional inter se seniority of Circle Education Officer under the School Education. In the said order, any officer feeling aggrieved, was required to submit representation within a period of 30 (thirty) days from the date of issue of the order. Therein the Annexure appended thereto, the petitioner No. 1 was shown junior to the petitioner No. 2 and the respondent Nos. 4-7. Being aggrieved by the provisional inter se seniority circulated vide order dated 25th January, 2012, the petitioner No. 1 submitted a detailed representation dated 2.2.2012 against the provisional inter se seniority of CAEO to the respondent No. 3. 10. Thereafter, by order dated 13th April, 2012, the respondent No. 3, as per direction of the Government, circulated the final seniority list of the Circle Adult Education Officers under the School Education Department by order dated 13th April, 2012. Therein, the petitioner No. 1 was shown junior to the petitioner No. 2 as well as the respondent Nos. 4-7. The petitioner No. 2 was also shown junior to the respondent Nos. 4 and 5. Hence, the instant writ petition. 11. Mr. Therein, the petitioner No. 1 was shown junior to the petitioner No. 2 as well as the respondent Nos. 4-7. The petitioner No. 2 was also shown junior to the respondent Nos. 4 and 5. Hence, the instant writ petition. 11. Mr. C. Lalramzauva, learned senior counsel appearing for the petitioners submits that the posts of Supervisor and CAEO is of the same grade and status and is inter-transferable within the Department of Education and the said posts also figures in the same Recruitment Rules of 1999. The educational and other qualifications for the said 2(two) posts are also similar. By the said Recruitment Rules of 1989 which came into force w.e.f. 16.1.1989 the said posts are to be filled up 100% by direct recruitment. The final inter se seniority list issued vide order dated 28.6.2001 was based on the merit list prepared by the DPC in respect of the said posts as well as length of service in the grade. The petitioners, therefore, being senior to the private respondents they were placed above them in the said seniority list. The State respondents have already settled the inter se seniority list amongst the petitioners vis-a-vis the private respondents and therefore it is no longer open for the State respondents to unsettled the already settled inter se seniority amongst them. As such, the impugned inter se seniority list of CAEO circulated vide order dated 13.4.2012 is illegal and the same should be set aside. He also submits that the State respondents have adopted a completely different criteria by taking into consideration the date of joining on initial recruitment or on being transferred to the post of CAEO without taking into consideration the length of service of the petitioners in the post of Supervisor which have discriminated the petitioners and the same is in violation of Articles 14 & 16 of the Constitution of India. The said 2 (two) posts i.e. CAEO and Supervisor are equivalent and which is also reflected in the Recruitment Rules of 1989, the question of absorbing the petitioners to the post of CAEO does not arise and therefore, the office order dated 14.10.1999 showing the petitioner No. 1 to be absorbed in the vacant post of CAEO w.e.f. 10.12.1997 and the order dated 12.11.2002 showing the petitioner No. 2 as being absorbed to the post of CAEO w.e.f. 1.6.1991 i.e., the date of joining of the petitioners 1 & 2 on transfer from the post of Supervisor to the post of CAEO respectively is without any application of mind and not based on any reasonable criteria. The Recruitment Rules of 1989 has not been amended till date and just because the Anomalies Committee in 1989 had made the pay scale for the post of CAEO higher than that of the post of Supervisor would not automatically mean that the petitioners are junior to the private respondents. No reasonable ground has been made out by the State respondents to bring about the impugned seniority list issued by order dated 13.4.2012 in supersession of the earlier settled seniority list issued vide order dated 28.6.2001. He also submits that there was also no reasonable criteria for absorbing the petitioner Nos. 1 and 2 to the post of CAEO by orders dated 4.10.1999 and 12.11.2002 w.e.f. 10.2.1997 and 1.6.1999 respectively. He, therefore, submits that the impugned orders dated 4.10.1999 and 12.11.2002 should be struck down insofar as it concerns the petitioners 1 and 2 and the impugned final; seniority list dated 13.4.2012 be also set aside and quashed. 12. The State respondents have contested the writ petition by filing affidavit-in-opposition. It is the submission of Mr. Lalsawirema, learned Government Advocate appearing for the State respondent Nos. 1-3, that the post of CAEO was never created under the Centrally Sponsored Scheme but the same was created under the State Budget as Social Education Organiser which was redesignated as CAEO in the year 1985. He submits that all posts of Supervisor, Rural Functional Literacy Project (RFLP) were created under the Centrally Sponsored Scheme and that the petitioners while being appointed as Supervisors were appointed under the CSS which is clearly borne out by their appointment orders. He submits that the respondent No. 4 was appointed as CAEO on officiating basis and his appointment was regularized later. He submits that the respondent No. 4 was appointed as CAEO on officiating basis and his appointment was regularized later. The respondent Nos. 5 & 6 were initially appointed as Supervisor, RFLP. However, they were later on transferred and posted as CAEO in the years 1998 and 1992 respectively and submits that even if the order of transfer and posting did not indicate, the same is considered as a promotion inasmuch as the pay scales of the two posts, namely, Supervisor and CAEO are different and further submits that the respondent No. 7 who was initially appointed as Supervisor on officiating basis was also transferred and posted as CAEO. He also submits that the Recruitment Rules of 1989 was published and notified on 16th January, 1989, prior to the recommendation of the pay anomaly committee which raised the pay scale of CAEO to Rs. 1640-2900 and thereafter to Rs. 2000-3500 as recommended by the Chhotopadaya Committee in January, 1989 while the post of Supervisor continued to carry the pay scale of Rs. 1400-2300. He, therefore, submits that merely because the relevant portion of the Recruitment Rules of 1989 was not amended to confirm to the existing situation, it does not mean that the 2(two) posts are same and identical. 13. The learned counsel for the State respondents also submits that the post of CAEO and the post of Project Officer RFLP are feeder posts to the next higher post of Assistant Director (Adult Education/District Adult Education), as provided under the Mizoram Education and Human Resources Development Department (Group 'A' post) Recruitment Rules, 2001. He submits that the post of Supervisor does not figure as a feeder post to that of the post of Assistant Director (Adult Education/District Education Officer). This clearly shows that the post of CAEO and Supervisors are not equivalent. He submits that, during the initial period, the post of Supervisor and CAEO had the same scale of pay and the nature of duties and responsibilities may have been the same when the Centrally Sponsored Scheme of RFLP was launched. However, over the passage of time, the pay scale of CAEO was made higher to that of the Supervisors. The petitioner No. 1 was never transferred and posted as CAEO but he was absorbed as CAEO w.e.f. 4.10.1999. However, over the passage of time, the pay scale of CAEO was made higher to that of the Supervisors. The petitioner No. 1 was never transferred and posted as CAEO but he was absorbed as CAEO w.e.f. 4.10.1999. The petitioner No. 2 though initially he joined as Supervisor in 22.1.1983, his; date of joining as CAEO was taken as 1.6.1999 i.e., the date of his transfer and posting as CAEO. Similarly, the private respondent No. 6 was also included in the list of CAEO from the date of her transfer and posting i.e., 1.3.1992 though she initially joined the post of Supervisor on 1.3.1985. The State respondents have been maintaining separate seniority list for the post of Supervisor and CAEO. This is evident from the office order dated 31.8.1992 wherein the seniority list of CAEO and Supervisors are shown separately. Further, by office order dated 16.5.1994, the final seniority list of the CAEO and Supervisors were brought out. There too, the CAEO and Supervisors were shown in separate Annexures. Again by office order dated 24.5.1999 another inter se seniority list of CAEO and Supervisors under School Education Department was brought out, wherein, the CAEOs and the Supervisors were shown separately. He, therefore, submits that the post of CAEOs and Supervisors are not the same which is also borne out by the pay scales attached to the said 2 (two) posts. The petitioners, therefore, on being absorbed as CAEO from the respective dates given to them were taken as CAEO only from those dates. He also submits that the impugned orders dated 4.10.1999 and 12.11.2002 was never challenged by the petitioners and they have accepted the same and have joined to their respective posts. The effective dates i.e., 10.2.1997 and 1.6.1991 have been accepted by the petitioners as their dates of absorption to the post of CAEO and the same have attained finality and therefore the petitioners are estopped from challenging the same in the year 2012. The criteria adopted for fixation of seniority of CAEO was based on the date of joining to the post of CAEO and therefore, the Department of DP & AR had rightly directed the Department of School Education to arrange the seniority of CAEO as was projected by the impugned order dated 13.4.2012. He, therefore, submits that there is no merit in the present writ petition and the same should be dismissed. 14. Mr. He, therefore, submits that there is no merit in the present writ petition and the same should be dismissed. 14. Mr. N. Sailo, learned senior counsel appearing for the private respondent No. 4 while adopting the submissions made by the learned counsel appearing for the State respondents submits that the petitioners as well as the other private respondents except the private respondent No. 4 were not only transferred and posted as CAEO but were absorbed in the grade of CAEO by the orders dated 4.10.1999 and 12.11.2002. The petitioner No. 1 was sought to be transferred and absorbed to the post of CAEO from his post of Supervisor on three occasions, viz., 19.4.1991, 29.1.1992 and 5.5.1994 but he declined to be posted as CAEO as the said vacancies occurred at Lunglei and Saiha. It was only when the vacancy at Aizawl came out that the petitioner accepted to join the post of CAEO and was subsequently absorbed by office order dated 4.10.1999 w.e.f. 10.2.1997. He also submits that similarity of the post of CAEO and Supervisor cannot be drawn merely on the ground that they are performing the similar natures of duties and responsibilities by simply relying upon their assignment to inspect Middle Schools, Primary Schools etc. but the pay scale of CAEO is much higher than that of the Supervisor despite the Recruitment Rules of 1989. He also submits that the CAEOs and the Supervisors never had a common seniority list and that separate seniority list has been prepared for the said 2 (two) posts as early as 4.1.1988 and since then up to 28.6.2001 there has been 3 (three) provisional seniority lists and 5 (five) final seniority lists. In the seniority list published by order dated 24.4.1999 the petitioner was placed amongst the Supervisors as she was not yet absorbed in the post of CAEO. All promotions made to the next higher post from the post of CAEO were from amongst the direct appointees and none of the Supervisors who were absorbed to the grade of CAEO has been promoted. All Supervisors who were absorbed to the post of CAEO were arranged at the bottom of seniority list of CAEO prior to 28.6.2001. However, from 28.6.2001, the State respondents had determined the date for fixing seniority by reckoning the services rendered while serving as Supervisors. All Supervisors who were absorbed to the post of CAEO were arranged at the bottom of seniority list of CAEO prior to 28.6.2001. However, from 28.6.2001, the State respondents had determined the date for fixing seniority by reckoning the services rendered while serving as Supervisors. The State respondents having come to know of the mistake committed by them, have tried to rectify the said error by bringing out the seniority list published by the order dated 13.4.2012. As such, there is nothing wrong in the order dated 13.4.2012 inasmuch as the State respondents are trying to rectify the error that has been committed by them for which there is no bar in law. The petitioners, therefore, cannot claim that the question of seniority has already been settled as early as 2001. Further submission has been forwarded by the learned senior counsel appearing for the respondent No. 4 that from the Mizoram Education & Human Resources Development Department (Group 'A' posts) Recruitment (First Amendment) Rules, 2001 it can be seen that amongst the feeder posts for promotion to the post of Assistant Director Adult Education/District Adult Education Officer there is no mention of the post of Supervisor. The feeder post that has been mentioned, is the post of Project Director (RFLP)/CAEO. This would go to show that the post of Supervisor and CAEO cannot be equated and therefore, these posts are not equivalent. The seniority list contained in the office order dated 28.6.2001 was accordingly rectified after following due process. In the facts and circumstances of the case, he also submits that the present writ petition has no merit and the same should be dismissed. He has also placed reliance in the case of V.K. Dubey and Others Vs. Union of India (UOI) and Others, . 15. I have considered the submissions forwarded by the learned counsel appearing for the respective counsels. It is not in dispute that the post of Supervisor held by the petitioner Nos. 1 & 2 was created under the Centrally Sponsored Scheme. The petitioner Nos. 1 & 2 were absorbed by the orders dated 4-10-1999 and 12-11-2002 w.e.f. 10-2-1997 and 1.6.1991 as CAEO respectively along with the private respondent Nos. 6 & 7. The orders of absorption dated 4.10.1999 and 12.11.2002 was accepted by the petitioner Nos. 1 & 2 was created under the Centrally Sponsored Scheme. The petitioner Nos. 1 & 2 were absorbed by the orders dated 4-10-1999 and 12-11-2002 w.e.f. 10-2-1997 and 1.6.1991 as CAEO respectively along with the private respondent Nos. 6 & 7. The orders of absorption dated 4.10.1999 and 12.11.2002 was accepted by the petitioner Nos. 1 & 2 and they have not challenged the same at any point of time except in the present writ petition which was filed in the year 2012. 16. The Hon'ble Supreme Court in the case of Dhyan Singh and Others Vs. State of Haryana and Others, has held that the continuance/engagement of the appellants under a specific scheme cannot be held to be an employment under any establishment of the Government. Such schemes are taken up for certain contingencies when money for the same is provided either by the Central Government or at times by some foreign country but the employment under such scheme not being a part of the formal cadre of the State Government, it is difficult to hold that the period for which an employee renders service under such scheme can be counted either for the purpose of deciding their pensionary benefits or even for fixing of their salaries in the scale of pay once they are regularly absorbed. 17. The petitioner Nos. 1 & 2 came under the employment of the State Government w.e.f. 10.2.1997 and 1.6.1991 i.e., the dates of their absorption as CAEO. Prior to their absorption into the State cadre, the petitioners were serving as Supervisors under the Centrally Sponsored Scheme. The petitioner Nos. 1 & 2 came into the State employment only w.e.f. 10.2.1997 and 1.6.1991 and therefore, their seniority in the post of CAEO can be reckoned only with effect from the date of absorption into the State services and not prior to that. The State respondents have also treated the case of the respondent Nos. 6 & 7 in the same manner as that of the petitioner Nos. 1 & 2. Accordingly, this Court sees no reason to interfere with the orders dated 4.10.1999 and 12.11.2002 and therefore, the challenge made to the said orders is rejected. 18. The State respondents have also treated the case of the respondent Nos. 6 & 7 in the same manner as that of the petitioner Nos. 1 & 2. Accordingly, this Court sees no reason to interfere with the orders dated 4.10.1999 and 12.11.2002 and therefore, the challenge made to the said orders is rejected. 18. The Mizoram Education & Human Resources Development Department (Group 'A' posts) Recruitment (First Amendment) Rules, 2002 at Annexure-I therein stipulates that the feeder post to the post of Assistant Director Adult Education/District Adult Education Officer is the Project Officer (RFLP)/CAEO. The post of Supervisor does not figure in the said feeder post. 19. This Court, having come to the finding that the services of the petitioner Nos. 1 & 2 under the State employment can only be counted with effect from the dates of their absorption, the only question left is whether the order dated 13.4.2012 by which the seniority position amongst the petitioners and the private respondents were rectified by the State respondents can be held to be illegal. 20. From a perusal of the affidavit filed by the State respondents as well as the respondent No. 4 it becomes apparently clear that in the various seniority lists (both provisional and final), the State respondents had been maintaining separate seniority list for the post of CAEO and Supervisor wherein the names of the petitioners and some of the private respondents had figured in their respective posts. It was only after the absorption of the petitioner Nos. 1 & 2 that the respondents have come up with the final seniority list circulated by order dated 28.6.2001 wherein the petitioners 1 & 2 were shown senior to the private respondents. From a perusal of the said order dated 28.6.2001, it appears that the respondents have taken the date of joining of the petitioners in the post of Supervisors as the date for reckoning their seniority in the post of CAEO. By the order dated 13.4.2012 the State respondents had rightly rectified the error in the order dated 28.6.2001. This Court, therefore, finds no illegality in the action of the respondents by rectifying the seniority positions of the petitioners vis-a-vis the private respondents. In view of the facts and circumstances of the case as discussed hereinabove, there is no merit in the writ petition and the same is accordingly dismissed. No cost.