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2014 DIGILAW 481 (GAU)

Rebek Lalnunmawii v. State of Mizoram and Ors.

2014-05-02

L.S.JAMIR

body2014
1. Heard Mr. N. Sailo, learned senior counsel assisted by Mrs. Dinari T. Azyu, learned counsel appearing for the petitioner. Also heard Mr. B. Lalramenga, learned counsel appearing for the respondents 2, 3, 4, 5 and 6. None appears for. the respondents 1 and, 7. . 2. Notice was issued to the respondent No. 7 on 11.2.2014 and A/D card has been received back after being duly served upon the respondents. Accordingly, this case is taken up for final disposal today. 3. The petitioner was engaged on Muster Roll basis w.e.f. 1.3.2003 to 28.5.2003 by order dated 27.5.2003. The said engagement of the petitioner on Muster Roll basis was extended continuously and she was placed at SI. No. 27 in the final seniority list of Muster Roll Employees under the Department of Environment and Forests as on October 2011. By an order dated 30.9.2011, the petitioner was discharged from her duty w.e.f. 1.10.2011 with further direction to vacate the Forest Department quarter within 30 days from the date of discharge. The said order was passed by the respondent No. 6, i.e., Range Forest Officer, Seling Forest Range, Seling. Being aggrieved, petitioner submitted a representation to the Addl. Principal Chief Conservator of Forests on 30.5.2012 stating that she has been discharged from service and the respondent No. 7 has been appointed in her place. The Deputy Conservator of Forests (Hqrs.) by letter dated 7.6.2012 had asked the Divisional Forest Officer, Aizawl Forest Division for explanation with regard to the termination of the petitioner and the engagement of the respondent No. 7 in her place. By another letter dated 3.8.2012, the Deputy Conservator of Forests (Hqrs.) had conveyed to the Divisional Forest Officer, Aizawl Forest Division that the order dated 30.9.2011 issued by the Range Officer, Seling has been nullified as the Range Officer was not competent to issue the office order in question and that the petitioner was terminated not because she was found unfit for retention but merely to make room for the respondent No. 7 and that the action taken by the Range Officer was most unfair and cannot be justified. By the same letter dated 3.8.2012, the petitioner was directed to immediately report to the Range Officer, Seling Forest Range for duty. By the same letter dated 3.8.2012, the petitioner was directed to immediately report to the Range Officer, Seling Forest Range for duty. Bv another letter dated 6th August, 2012, the Divisional Forest Officer, Aizawl Forest Division, Aizawl, Mizoram while enclosing the letter/chit of the Home Minister, informed the Principal Chief Conservator of Forests, Mizoram that the consent of the Home Minister who is also the local MLA, Seling may be required, if me petitioner was to resume her duty as I.B. Chowkidar, Seling. The petitioner, therefore, again made representations before the Minister of the Department concerned on 21.8.2012 and also to the Deputy Conservator of Forests (Hqrs.) on 5.10.2012 expressing her grievances and requesting for taking necessary steps to enable her to resume service. The petitioner also submitted another representation dated 29.1.2012 to the Deputy Conservator of Forests (Hqrs.) stating that she is being prevented from resuming her duty as Chowkidar by the respondent No. 6 and that she was also denied of her monthly salary while the salary of the respondent No. 7 was regularly prepared by the respondents. Being aggrieved by the action of the respondents, the present writ petition has been filed. 4. Mr. N. Sailo, learned senior counsel appearing for the petitioner submits that there was no cogent reason to terminate the service of the petitioner by the respondent No. 6 but the same was done only to accommodate the respondent No. 7 at the behest of the Home Minister. The petitioner has been continuously rendering more than 14 years of service as Chowkidar which includes 8 years on Muster Roll basis. Till the date of her discharge, there were no adverse remarks or observations against the petitioner. In fact, the petitioner was otherwise eligible to be considered for regularization in terms of the Regularization of Muster Roll Employees Mizoram Scheme, 2000 (as amended) which was formulated by the State respondents. He also submits that from a perusal of the letters dated 7.6.2012 and 3.8.2012 written by the Deputy Conservator of Forests (Hqrs.), it is apparent that the termination of the petitioner was illegal and the same was done by the respondent No. 6 who was not competent-to do so. The said letters also clearly indicate that the action of the respondent No. 6 was purely mala fide with the intention of accommodating the respondent No. 7. The said letters also clearly indicate that the action of the respondent No. 6 was purely mala fide with the intention of accommodating the respondent No. 7. The illegal action of the respondent No. 6 is exposed by none others but by the superior officers of the respondent No. 6 in the letters dated 7.6.2012 and 3.8.2012. This being the position, he submits that the communication dated 6.8.2012 should be set aside and the respondents should be directed to allow the petitioner to resume her duties in her appointed post as Muster Roll Chowkidar in place of the respondent No. 7. In Support of his case, the learned senior counsel has placed reliance in the case of Madan Singh and Others v., State of Haryana and Others, (2006) 1 SCC 693 . 5. Mr. B. Lalramenga, learned Standing Counsel, Forest Department, has fairly submitted that considering the nature of the case, appropriate orders may be passed as deemed fit and proper. 6.1 have considered the submissions made by the learned counsel appearing for both the parties. For a proper adjudication of the case in hand, the letter dated 7.6.2012 and 3.8.2012 are reproduced hereinbelow : “NO.A. 12026/30/2012-PCCF GOVERNMENT OF MIZORAM OFFICE OF THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS MIZORAM:::: AIZAWL Tuikhuahtlang, Aizawl -- 796001 7th June, 2012. To The Divisional Forest Officer, Aizawl Forest Division. Aizawl. Sub: Termination of engagement of Muster Roll (Approved) employee. Sir, It is learnt that the engagement of Rebek Lalnunmawii, I.E. Chowkidar, Seling was terminated with effect from 1.10.2011 and in her place C. Laramthara is engage vide Order No. 3 of 2011 issued by Pu V. Zaithanzuala, Range Officer, Seling Forest Range under No. D. 11023/1/2009-RO(SL)/300 dated 30.9.2011. In this regard, you are requested to - (i) state whether the order was issued with your knowledge and approval; (ii) state in a precise and unambiguous terms the ground on which Rebek Lalnunmawi’s engagement was terminated; (iii) state whether Rebek Lalnunmawii has ever been reprimanded/warned on account of incompetence, lack of devotion to duty and immoral conduct as the case may be; and, (iv) state why C. Lalramthara is engage with effect from 1.10.2011, i.e., the date from which Rebek Lalnunmawii’s engagement was terminated. Kindly furnish the require information latest by 13.6.2012. Kindly furnish the require information latest by 13.6.2012. Yours faithfully, Sd/- (VANLALCHUAILOVA) Deputy Conservator of Forests (Hqrs.).” Further, the letter dated 3.8.2012 reads as under : “NO.A. 12026/30/2012-PCCF GOVERNMENT OF MIZORAM OFFICE OF THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS MIZORAM:::: AIZAWL Tuikhuahtlang, Aizawl -- 796001 3rd August, 2012. To The Divisional Forest Officer, Aizawl Forest Division, Aizawl. Sub: Muster Roll I.B. Chowkidar at Seling -- regarding. Sir, I am to inform you that decision has been taken by appropriate and competent Authority to nullify the Office Order No. 3 of 2011 issued by the Range Officer, Aizawl Forest Divn., Seling Forest Range under No. D. 11023/1/2009-RO(SL)/300 dt.30.9.2011 for the following reasons: (i) it is beyond the competence of a Range Officer to issue the Office Order in question; (ii) it is observed that Rebek Lalnuanmawii’s engagement was terminated not because she is found unfit for retention but merely to make room for Lalramthara. The action taken by the Range Officer was most unfair and cannot be justified. Yours faithfully, Sd/- (VANLALCHUAILOVA) Deputy Conservator of Forest (Hqrs.) Memo No. A. 12026/30/2012-PCCF: Dated Aizawl, the 3rd August, 2012 Copy to: (1) Range Officer, Seling Forest Range for information. (2) Rebek Lalnunmawii for information. She is directed to immediately report herself to the Range Officer, Seling Forest Range for duty. This has reference to her letter dated 30.5.2012. Sd/- Deputy Conservator of Forest (Hqrs.).” 7. Again, the letter dated 6th August, 2012 written by the respondent No. 5 is also reproduced hereinbelow : “GOVERNMENT OF MIZORAM OFFICE OF THE DIVISIONAL FOREST OFFICER, AIZAWL FOREST DIVISION AIZAWL:: MIZIORAM No. A. 12012/3/2011-DFO(A)/92 Dated Aizawl the 6th Aug/2012. To The Principal Chief Conservator of Forests, Mizoram, Aizawl. Sub: Muster Roll I.E. Chowkidar at Seling -- regarding. Ref: Your letter No. A.12026/30/2012-PCCF dated 3.8.2012 Sir, With reference to above, I have the honour to inform you that the consent of the hon’ble Home Minister, etc., who is also Local MLA, Seling may be required if Rebek Lalnunmawii has to resume her duty as I.E. Chowkidar, Seling. Original letter/chit addressed to the undersigned written by the said hon’ble Home Minister is enclosed for kind information and reference. Enc.: As above. Yours faithfully, Sd/-(V.LALFALA) Divisional Forest Officer Aizawl Forest Division Aizawl: Mizoram.” 8. Original letter/chit addressed to the undersigned written by the said hon’ble Home Minister is enclosed for kind information and reference. Enc.: As above. Yours faithfully, Sd/-(V.LALFALA) Divisional Forest Officer Aizawl Forest Division Aizawl: Mizoram.” 8. The translated version of the chit written by the Home Minister dated 14.6.2012 is also reproduced hereinbelow : “English Translation MINISTER 209, New Civil Secretariat Khatla, Departments of Aizawl- 796001 HOME, RURAL DEVELOPMENT, Mizoram PRISON SECRETARIAT Office : 0389-2323257 ADMINISTRATION, FISHERIES Residence: 0389-2325827 GOVT. OF MIZORAM FAX : 0389-2310452” Sh. Fala Let the Rest House Chowkidar of Seling Forest Post remain manned as it is. . -Sd/-14.6.2012.” 9. The letters dated 7.6.2012 and 3.8.2012 make it crystal clear that it was beyond the competence of the respondent No. 6 to have issued the order dated 30.9.2011 discontinuing the service of the petitioner w.e.f. 1.10.2011. From the sequence of events, it becomes abundantly clear that the termination of the petitioner was done only to accommodate the respondent No. 7. The order dated 30.9.2011 also does not indicate that the service of the petitioner was not required any further. It is already well settled principle of law that an ad hoc employee cannot be replaced by another ad hoc employee unless it is sought to be done by a regularly selected employee. This being the settled position of law, the action of the respondent No. 6 to discontinue the service of the petitioner in order to accommodate the respondent No. 7 is held to be illegal and also that the order dated 30.9.2011 was passed without competence. 10. The hon’ble Supreme Court in the case of Madan Singh (supra) at paragraph 4 therein has also held as under : “4. It is contended that termination of their services under executive instructions was not justifiable, particularly when they had put in such a long period of service and while persons junior to them in such service have been retained. It has further been contended that while the services of all these appellants have been terminated, fresh recruitment has been made almost simultaneously, which goes to show that there was need for such services and there was, therefore, no justification for termination of services of the appellants.” 11. The hon’ble Supreme Court has held in the case of State of Haryana and Ors. The hon’ble Supreme Court has held in the case of State of Haryana and Ors. v. Piara Singh and Ors., (1992) 4 SCC 118 that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority. In the case in hand the service of the petitioner was discharged not by the appointing authority but by an officer (respondent No. 6) who had no competence and that a muster roll employee is sought to be replaced by another muster .roll employee. 11. In the facts and circumstances of the case, the order dated 30.9.2011 and the letter dated 6th August, 2012 are set aside and quashed. The petitioners have: failed to produce the appointment order of the respondent No. 7. However, from a perusal of the materials available on records it is seen that the order appointing the respondent No. 7 has been nullified by the letter dated 3rd August, 2012. Under the circumstances, this court upholds the letter dated 3rd August, 2012 written by the Deputy Conservator of Forests (Hqrs.). 12. The respondents are now directed to act in conformity with the letter dated 3rd August, 2012 by allowing the petitioner to forthwith resume her duties in her appointed post as Muster Roll Chowkidar. Accordingly, this petition is allowed. No cost.