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Gauhati High Court · body

2014 DIGILAW 531 (GAU)

George Lalromawia v. State of Mizoram and Ors.

2014-05-17

L.S.JAMIR

body2014
1. On 13.1.1988, the petitioner joined as Assistant Soil Conservation Officer in the Department of Soil and Water Conservation Department, Govt. of Mizoram pursuant to the appointment order dated 17.12.1987. The respondent No. 3 was also appointed by the same order dated 17.12.1987 and he joined to the post on 11.2.1988. The Mizoram Soil Conservation (Group ‘A’ post) Recruitment Rules, 1987 (‘the Recruitment Rules of 1987’) provides that the post of Director is to be filled up by promotion from Joint Director with not less than 5 years regular service in the grade. If there are no eligible candidates, the post of Director is to be filled on deputation from officers or from Central/State Govt./U.T. Administration holding analogous post: The respondent No. 3 on the retirement of the then Director of Soil and Water Conservation Department, Mr. Ngurliana Sailo was allowed to hold the charge of Director, Soil and Water Conservation, Government of Mizoram by notification dated 2.7.2009. At that relevant point of time, the respondent No. 3 was holding the post of Joint Director in the Department of Soil and Water Conservation but he was not promoted to the post of Director as he did not have the qualifying 5 years of service as required on 2.7.2009. Thereafter, by notification dated 4.8.2010, the respondent No. 3 was promoted to the post of Director, Soil & Water Conservation Department, Government of Mizoram. The petitioner was also promoted to the post of Joint Director, Soil and Water Conservation Department by notification dated 20.8.2010. The date of superannuation of the respondent No. 3 falls on 31.12.2013. However, the respondent No. 3 wrote a letter dated 8,7.2013 stating that as the petitioner was having only 3 years and 4 months of service as Joint Director on 1.1.2014, he requested that Government approval may be obtained in order to enable the petitioner to take charge of the post of Director when the respondent No. 3 was released from service. By another letter dated 20.8.2013, the respondent No. 3 again requested the respondent No. 1 for extending his service beyond his date of superannuation as the petitioner did not have the qualifying length of service to be promoted to the post of Director. He also requested, by the same letter, for extension of his service on the ground that certain project works and schemes were still to be pushed through. He also requested, by the same letter, for extension of his service on the ground that certain project works and schemes were still to be pushed through. After considering the request of the respondent No. 3, the respondent Nos. 1 and 2 were of the opinion that as the petitioner would still require another two years of service as on 1.1.2014 to be able to be considered for promotion to the post of Director and that the request made by the respondent No. 3 was found to be genuine and relevant, the extension of service as sought for by the respondent No. 3 as Director was accordingly approved. The petitioner, therefore, has approached this court alleging violation of Fundamental Rule 56 and also the Office Memorandum dated 19.8.2008 issued by the respondent No. 1. 2. Heard Mr. M. Zothankhuma, learned senior counsel assisted by Mr. Lalfakawma, learned counsel appearing for the petitioner as well as Mr. Lalsawirema, learned Government advocate appearing for the State respondents. None appeared for the respondent No. 2 despite service of notice being complete. 3. Mr. M. Zothankhuma, learned senior counsel appearing for the petitioner submits that the respondent No. 3 was allowed to hold the charge of Director, Soil and Water Conservation Department when the then incumbent had retired, though he did not have the qualifying 5 years of service as required by the Recruitment Rules of 1987. He also submits that the extension of service given to the respondent No. 3 was in violation of the Central Fundamental Rule 56 (FR 56) which is applicable to the Government employees of Mizoram. He submits that FR 56(d) clearly stipulates that no government servant shall be granted extension in service beyond the age of retirement of 60 years except under certain circumstances. The manner in which the service of respondent No. 3 has been extended beyond his date of superannuation is not covered by the exception provided under FR 56(d). It is also the further submission of learned senior counsel that the respondent No. 1 has issued an office memorandum dated 19.8.2008 completely banning extension of service beyond the age of superannuation consequent upon the raising of age of retirement from 58 years to 60 years. It is also the further submission of learned senior counsel that the respondent No. 1 has issued an office memorandum dated 19.8.2008 completely banning extension of service beyond the age of superannuation consequent upon the raising of age of retirement from 58 years to 60 years. The said OM dated 19.8.2008 also provides that extension of service to the superannuating officers is to be resorted only in really exceptional circumstances and for such cases, it should be in public interest and should satisfy one of the following two conditions namely, that other officers are not ripe enough to take over the job; or that the retiring officer is of outstanding merit. He, therefore, submits that the extension of respondent No. 1 does not fall under any category stipulated under the OM dated 19.8.2008 and that the said extension was not in public interest but the same was done to accommodate the respondent No. 3 beyond his period of superannuation. Such action of the respondent has frustrated and affected the moral of the employees in the Department. He also submits that in the year 2009, the official respondent had allowed respondent No. 3 to hold the charge of Director, Soil and Water Conservation Department even if he did not have the qualifying 5 years length of service as required by the Recruitment Rules of 1987. If the same could have been done for respondent No. 3 in 2009, there was no reason why the official respondent could not have considered the case of the petitioner in 2014 when the respondent No. 3 was supposed to retire w.e.f. 31.12.2013. It is, therefore, his submission that the impugned notification dated 18.10.2013 by which the respondent No. 3 was given extension of service w.e.f. 1.1.2014 to 30.6.2014 should be set aside and quashed. At this stage, the learned senior counsel submits that he is not pressing the Additional Affidavit filed by the petitioner. 4. The State respondents have filed their counter affidavit. Mr. Lalsawirema, learned Govt. At this stage, the learned senior counsel submits that he is not pressing the Additional Affidavit filed by the petitioner. 4. The State respondents have filed their counter affidavit. Mr. Lalsawirema, learned Govt. advocate submits that the petitioner who was the senior most in the feeder grade did not have the qualifying length of service as on 1.4.2013 and taking into account that the Soil & Water Conservation Department plays a vital role for implementing various projects of the Government, the official respondents had decided that the respondent No. 3 be given extension of service without appointing an officer who would not be fully qualified for the post. He submits that under the Recruitment Rules of 1987, the post of Director can be filled up on promotion from the post of Joint Director only after completing 5 years of regular service. The petitioner was promoted on 20.8.2010 to the post of Joint Director and, therefore, was not eligible for promotion. While not disputing the facts that FR 56(d) prohibits extension of service beyond the date of superannuation except in certain special circumstances, he submits that the OM dated 19.8.2008 provides for- granting of extension of service on two conditions as submitted by the learned senior counsel for the petitioner. As there was no availability of eligible officer in the feeder grade of Joint Director and considering the competency of the respondent No. 3, the said extension order was given in the interest of public service from 1.1.2014 upto 30.6.2014. In the fact and circumstances of the case, he submits that no case has been made out by the petitioner calling for the interference of the impugned order dated 1.8.10.2013. 5.1 have considered the submissions forwarded by the learned counsel for both the parties. 6. In the fact and circumstances of the case, he submits that no case has been made out by the petitioner calling for the interference of the impugned order dated 1.8.10.2013. 5.1 have considered the submissions forwarded by the learned counsel for both the parties. 6. FR 56(d) is reproduced hereinbelow : “(d) No Government servant shall be granted extension in service beyond the age of retirement of sixty years: Provided that a Government servant dealing with budget work or working as a full-time member of a Committee which is to be wound up within a short period of time may be granted extension of service for a period not exceeding three months in public interest; Provided further that a specialist in medical or scientific fields may be granted extension of service up to the age of sixty-two years, if such extension is in public interest and the grounds for such extension are recorded in writing: Provided also that an eminent scientist of international stature may be granted extension of service up to the age of 64 years, if such extension is in public interest and the grounds for such extension are recorded in writing: Provided also that notwithstanding anything contained in any rule, the Central Government may, if considered necessary in public interest so to do, give extension in service to a Cabinet Secretary in the Central Government for such period or periods as it may deem proper subject to the condition that his total term as such Cabinet Secretary does not exceed (four) years: Provided also that the Central Government may, if considers necessary in public interest so to do, give extension in service to the Defence Secretary, (Foreign Secretary), Home Secretary, Director, Intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation, in the Central Government for such period or periods as it may deem proper, on a case-to-case basis, subject to the condition that the total term of such Secretaries or Directors, as the case may be, who are given such extension in service under this rule does not exceed two years: Provided also that notwithstanding anything contained in the fifth proviso, the Central Government may, if considers it necessary, in public interest, so to do, give an extension in service for a further period not exceeding three months beyond the said period of two years to the Home Secretary and the Defence Secretary: Provided also that, the Central Government may, if considered necessary in public interest so to do, give extension of service to the Secretary, Department of Space and the Secretary, Department of Atomic Energy, for such period or periods as it may deem proper subject to a maximum age of 66 years: Provided also that the Appropriate Authority shall have the right to terminate the extension of service before the expiry of such extension by , . giving a notice in writing of not less than three months in the case of a permanent or a quasi-permanent Government servant/ or, of one month in the case of a temporary Government servant, or pay and allowances in lieu of such notice.” 7, The O.M. dated 19.8.2008 issued by the Department of Personnel and Administrative Reform, Government of Mizoram is also reproduced hereinbelow : “A. 12034/2/2007-P&AR(GSW) GOVERNMENT OF MIZORAM DEPARTMENT OF PERSONNEL & ADMINISTRATIVE REFORMS (GENERAL SERVICE WING) OFFICE MEMORANDUM Dated Aizawl, the 19th August, 2008. Instances have come to the notice of the Government that some Departments are in the habit of submitting proposal for extension of services beyond the age of superannuation pension neglecting the conditions laid down by the Rules under FR 56(d) wherein it is clearly stated that no Government servant shall be granted extension of service beyond the age of 60 years. However, provisions exit in the Rules to grant extension of service to certain category of Government servant such as specialist in Medical or Scientific fields, eminent Scientist of International stature. A Government servant dealing with budget work or working as a full time member of a committee which is to be wound up within a short period of time may also be granted extension of service for not exceeding three months in public interest. Extension of service not only delay the promotional chance of the immediate junior but affect several people all along the hierarchy. Consequent upon raising the age of retirement from 58 years to 60 years there shall be complete ban on extension of service beyond the age of superannuation. However, all concerned authorities should ensure that extension in service to the superannuating officers is resorted to only in really exceptional circumstances and for grant of extension in such case., it must be in the public interest and in addition, satisfy one of the following two conditions: . (1) That other officers are not ripe enough to take over the job; or (2) That the retiring officer is of outstanding merit. All administrative Departments/All Heads of Department are informed to bring the contents of this O.M. to their subordinate offices for strict compliance. Sd/-C. ROPIANGA Commissioner & Secretary to the Government of Mizoram.” 8. (1) That other officers are not ripe enough to take over the job; or (2) That the retiring officer is of outstanding merit. All administrative Departments/All Heads of Department are informed to bring the contents of this O.M. to their subordinate offices for strict compliance. Sd/-C. ROPIANGA Commissioner & Secretary to the Government of Mizoram.” 8. Under the Recruitment Rules of 1987, the post of Director is shown to be a selection, post and the same is a promotional post failing which by transfer on deputation. The said post of Director is to be filled up on promotion from the of post of Joint Director of Soil and Water Conservation Department with not less than 5 years regular service in the grade or transfer on deputation. Rule 7 of the Recruitment Rules of 1987 provides for power to relax any of the provisions of the said rules with respect to any class or category of persons with reason to be recorded in writing in consultation with Mizoram Selection Board. 9. From a reading of FR 56(d), it is seen that except in certain exceptional cases, no extension of service should be granted to government servant beyond the age of retirement of 60 years. 10. After considering the materials available on record as well as the impugned order dated 18.10.2013, the case of the petitioner does not fall under any of the exceptions provided under FR 56(d) nor does the case of the petitioner falls under any of the exceptional circumstances stipulated by the O.M dated 19.8.2008. 11. From the affidavit-in-opposition filed by the State respondents, there is no whisper about the outstanding merit of the respondent No. 3 necessitating for further requirement of his, service as Director of Soil and Water Conservation: Department. All that is stated in the affidavit of the State respondents is that the petitioner does not have the required length of service and that for implementing various projects the services of the respondent No. 3 was required. This court is-not impressed. The reasons given by the respondents for continuation of the respondent No. 3 beyond his date of superannuation does not fall under any exceptions provided by FR 56(d) or by the OM dated 19.8.2008. 12. This court is-not impressed. The reasons given by the respondents for continuation of the respondent No. 3 beyond his date of superannuation does not fall under any exceptions provided by FR 56(d) or by the OM dated 19.8.2008. 12. This court also cannot ignore the fact that in the year 2009 when the then incumbent had retired, the respondent No. 3 was allowed to hold the charge of Director of Soil, and Water Conservation Department even if he did not have the required qualifying 5 years length of service. In the present case in hand the petitioner .also did not have the qualifying length of service., However,, the same treatment was not given to the petitioner by the respondent for reason best, known to them and which is also not at all explained in the affidavit-in-opposition filed. 13. In the facts and circumstances of the case, this court is of the opinion that the case of the petitioner does not fall under any of the special exceptions stipulated in FR 56(d) nor any of the conditions provided under OM dated 19.8.2008 and, therefore, impugned order dated 18.10.2013 could not have been issued allowing respondent No. 3 to continue in service w.e.f. 1.1.2014 up to 30.6.2014. 14. However, considering the fact that the respondent No. 3 would be completing the period of 6 months within a short period from today, this court is not interfering with the impugned order dated 18.10.2013. Had the hearing of this case been taken a few months earlier, the notification dated 18.10.2013 would have been quashed and set aside by this court. 15. In the light of the discussion and observation made hereinabove, the respondents are hereby directed to forthwith take up the case of the petitioner for consideration and, thereafter, passed appropriate order on or before 30.6.2014. It is further directed that beyond 30.6.2014, the respondent No. 3 shall not be given any further extension of service, under any circumstances. No cost.