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2014 DIGILAW 732 (GAU)

Laldingliani Hlychho v. State of Mizoram and Ors.

2014-07-23

L.S.JAMIR

body2014
1. The petitioner has filed WP(C) No. 46 of 2012 for her promotion to the post of State Librarian and WP(C) No. 48 of 2012 has been filed for grant of enhanced pay scale and accordingly these two writ petitions are taken up together and disposed of by this common judgment and order. 2. Heard Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the petitioners in both the writ petitions as well as Mr. Aldrin Lallawmzuala, learned Addl. A.G., Mizoram for the State respondents. Mr. M. Zothankhuma, learned senior counsel assisted by Mr. Lalfakawma, learned counsel, appears for the respondent No. 6, i.e., the Mizoram Public Service Commission. None appears for the private respondent No. 7. On 4.7.2013, this court in WP(C) No. 48 of 2012 had given permission to the learned counsel for the petitioner to personally serve upon respondent No. 7 in WP(C) No. 46 of 2012 and thereafter to file affidavit. Affidavit was filed showing dasti service upon the respondent No. 7 and the same was accepted by this court on 25.6.2014. By the same order dated 25.6.2014, it was directed that if respondent No. 7 is not represented, the case shall be taken up ex parte. Till date, none has appeared for respondent No. 7. However, the case is accordingly taken up and disposed of in view of the earlier orders passed by this court. 3. Mr. C. Lalramzauva, learned senior counsel appearing for the petitioner submits that the petitioner was initially appointed as a teacher in Government High School, Saiha and thereafter by an order dated 8.2.1978, the petitioner was appointed temporarily on transfer as District Librarian at Saiha in the scale of Rs. 425-800 per month under the Directorate of Education. By another order dated 5th March, 1985, the petitioner along with 20 (twenty) others were confirmed in the service with effect from the date shown against their names. The name of the petitioner appears at SI. No. 2 in the Annexure appended to the said order dated 5.3.1985 and her date of confirmation is shown as 1.10.1984. Since then, the petitioner has been serving in the capacity of District Librarian till date without any further promotion. The name of the petitioner appears at SI. No. 2 in the Annexure appended to the said order dated 5.3.1985 and her date of confirmation is shown as 1.10.1984. Since then, the petitioner has been serving in the capacity of District Librarian till date without any further promotion. The private respondent No. 7 was appointed on the recommendation of the DPC temporarily as Assistant Librarian in the scale of pay of Rs.1640-2900 per month and posted at State Library, Aizawl under the Directorate of Art and Culture. At this stage, learned senior counsel submits that the Art and Culture Directorate was earlier under the Directorate of Education which was later trifurcated into Directorate of School Education, Directorate of Higher and Technical Education and Directorate of Art and Culture. In view of the trifurcation, the petitioner was also brought under the administrative control of the Education and Human Resources Department. While the petitioner was serving as District Librarian and the respondent No. 7 as Assistant Librarian under , the Directorate of Art and Culture, the State respondents enacted the Mizoram Education & Human Resources Department, Group 'B' Non-Gazetted Recruitment Rules, 1996 (the Group 'B' Rules of 1996). Therein, at Annexure I appended to the said Group 'B' Rules of 1996, the post of Assistant Librarian is shown as 100% direct recruitment and District Librarian as 50% by promotion and 50% by direct recruitment. For the purpose of direct recruitment, the essential qualifications were a degree in B.Lib. from a recognized University, Knowledge of Mizo language up, to Middle School standard with desirability in experience in Library Administration. He also submits that the State respondents had also enacted the Mizoram Education & Human Resources Department, Group 'A' Gazetted Recruitment Rules, 1996 wherein in the Annexure appended thereto, the post of State Librarian at column 6 is shown as 100% promotion failing which by direct recruitment and at column 12 therein, the feeder post for promotion to the post of State Librarian is shown as Deputy State Librarian with five years regular service in the grade. Thereafter, the State Group 'A' Recruitment Rules of 1996 was amended by the Mizoram Education & Human Resources Development (Group 'A' post) Recruitment (First Amendment) Rules, 2005 (the Group 'A' Amended Rules of 2005). Thereafter, the State Group 'A' Recruitment Rules of 1996 was amended by the Mizoram Education & Human Resources Development (Group 'A' post) Recruitment (First Amendment) Rules, 2005 (the Group 'A' Amended Rules of 2005). By the said Group 'A’ Amended Rules of 2005, Column 12 was amended by showing the feeder post to the post of State Librarian as from Assistant Librarian, Mizoram State Library and District Librarian with not less than 8 (eight) years regular service in the grade. He submits that by the time the said Group 'B' Rules of 1996 and the Group 'A' Rules of 1996 were enacted, both the petitioner and the respondent No. 7 were already in service. It is also submitted that the petitioner having entered service in the year 1976, she was already qualified for promotion to the post of State Librarian by the time the Group 'A' Rules of 1996 was enacted. Further, when the Rules of 1996 was amended by the Group 'A’ Amended Rules of 2005, the petitioner had a qualifying length of eight years regular service as stipulated by the said Rules. 2005. It is the submission of the learned counsel for the petitioner that pursuant to a decision taken by the council of ministers on 18.4.1994, a Cabinet Sub-Committee was constituted to look into the claims of Government employees for upgradation of pay scales or posts. On the basis of such constitution, the Cabinet Sub-Committee submitted its report and with regard to the Education & Human Resources Department at para 5, more particularly 5(d) Art and Culture, the Sub-Committee considered the demand for upgradation of pay scales of different categories of posts and was of the view that the standard conversion of pay scales worked out by the Sub-Committee will take care of the demands insofar as the Directorate of Art and Culture was concerned. Under the standard conversion of pay scales of Group D, C and B at SI. No. 10, the Cabinet Sub-Committee had recommended that for the ROP of 1986, Rs. 1640-2900, the recommended pay scale is Rs. 2000-3200. He submits that when the petitioner was initially appointed as District Librarian in the pay scale of Rs. 425-800 the same was revised by the ROP of 1986 to Rs. 1240-2600. He, however, submits that when the Cabinet Sub-Committee made its recommendation in the year 1994, the petitioner was also enjoying the scale of Rs. 2000-3200. He submits that when the petitioner was initially appointed as District Librarian in the pay scale of Rs. 425-800 the same was revised by the ROP of 1986 to Rs. 1240-2600. He, however, submits that when the Cabinet Sub-Committee made its recommendation in the year 1994, the petitioner was also enjoying the scale of Rs. 1640-2900 and the recommendation of Rs. 2000-3500 was, therefore, automatically applicable to her. He submits that the respondent No. 7 as well as the petitioner were enjoying the same scale of pay of Rs. 1640-2900 and, therefore, as per the standard conversion of the cabinet Sub-Committee, she was entitled to the recommended pay scale of Rs. 2000-3500. However, the case of the petitioner was not considered and only the respondent No. 7 was considered. This was done based on the letter dated 1.6.2005 issued by the Director of Art and Culture Department wherein it was stated that the service book of the respondent No. 7 was returned along with approved statement of fixation of pay under CCS(R.P.) CSC Rules 1994 in the scale of pay of Rs. 2000-3500 p.m. on 10.12.1994 and CCS(R.P.) Rules 1997 at Rs. 6500 in the scale of pay of Rs. 6500-10500 p.m. on 1.1.1996. By the said letter dated 1.6.2005, the effective date for drawing enhanced pay as per the CCS(R.P.) Rules 1997 was on 1.5.1999. Learned senior counsel for the petitioner submits that this letter was written in complete violation of the Government of Mizoram (Transaction of Business) Rules, 1987 inasmuch as the Finance Department was never consulted nor approval of the Finance Department was taken. Under such circumstances, the Directorate of Art and Culture could not have issued the said letter dated 1st June, 2005 approving the recommendation of pay scale made by the Cabinet Sub-Committee in the year 1995 in respect of respondent No. 7. He also submits that assuming that this letter is acceptable, the same should have been done for the petitioner but instead the respondents applied a different yardstick in favour of the respondent No. 7 while ignoring the case of the petitioner. 4. The learned senior counsel appearing for the petitioner submits that the petitioner had joined service in the year 1976 and the respondent No. 7 had joined in the year 1990. 4. The learned senior counsel appearing for the petitioner submits that the petitioner had joined service in the year 1976 and the respondent No. 7 had joined in the year 1990. However, by an order dated 28th July, 2009 the respondent No. 3 brought out the provisional inter se seniority of Group 'B' officers who are holding feeder post of State Librarian. Therein, the petitioner was shown in SI. No.2 and respondent No. 7 at SI. No. 1. The date of appointment to the present post as regards the petitioner was shown as 1.3.1976 and the date of joining to the present post as 1.3.1978. As regards the respondent No. 7, his date of appointment was shown as 15.10.1990 and his date of joining to the post is shown as 26.11.1990. While the petitioner and the respondent No. 7 are holding the same feeder post, i.e., the Assistant Librarian and District Librarian their scale of pay in the order dated 28.7.2009 is shown as 7450-11500 for respondent No. 7 and 6500-10500 for the petitioner. The petitioner represented against the order dated 28.7.2009 by a representation dated 13.8.2009. This was followed by another representation dated 28.8.2009. The respondent No. 3 responded to the representation made by the petitioner stating that the provisional inter sc seniority order dated 28.7.2009 concerning the feeder posts with a pay scale of Rs. 7450-11500 and 6500-10500 who can be promoted to the post of State Librarian has been replaced by two orders both dated 2.9.2009. It was also reflected in the response that the new order is for those falling within Rs. 7450-11500 and 6500-10500. He submits that initially there was a common seniority lists but by these two orders both dated 2nd September, 2009, two seniority lists were issued wherein the respondent No. 7 maintained a separate seniority list and the petitioner along with another had a different seniority list without citing any reasons. However, the facts still remained that both the petitioner as well as the respondent No. 7 were holding feeder posts for further promotion to the post of State Librarian and, therefore, both orders dated 2.9.2009 could not have been issued by the respondent No. 3. Not being satisfied, the petitioner had made several representations before the respondents. However, none of her representations bore any fruits. Not being satisfied, the petitioner had made several representations before the respondents. However, none of her representations bore any fruits. Subsequently, on 5th October, 2009, the respondent No. 3 wrote a letter to the Under Secretary to the Government of Mizoram, Art and Culture Department forwarding copy of the representations submitted by the petitioner and also laying down facts about the pay fixation of the petitioner. The letter dated 5th October, 2009 also referred the matter to the Government of Mizoram to settle the case and copies of the representation filed by the petitioner were also enclosed therein. In spite of such reference being made to the Government for settling the issue at the Government level, the respondent No. 3 again proceeded by issuing office order dated 28th June, 2011 wherein the respondent No. 7 was again shown senior to the petitioner whereas the date of appointment and the date of joining to the post clearly indicates that the petitioner was much senior to the respondent No. 7 in the provisional inter se seniority. The order dated 28.6.2011 was again made final by order dated 1st August, 2009 wherein the inter se position of the petitioner vis-a-vis respondent No. 7 continued to be same. The Mizoram Public Service Commission, respondent No. 6 held a meeting on 6.2.2012 to consider promotion to the post of State Librarian under the Art & Culture Department. By the said minutes, the respondent No. 7 was recommended for promotion after the assessment of ACRs of Assistant Librarian, Mizoram State Library/District Librarian, i.e., the respondent No. 7 and the petitioner. Consequently, the impugned order dated 10th February, 2012 was issued whereby the respondent No. 7 was promoted to the post of State Librarian in supersession of the petitioner. 5. It is the Submission of Mr. C. Lalaramzauva, learned senior counsel appearing for the petitioner that as the petitioner entered service in the year 1976 and was thereafter appointed temporarily on transfer as District Librarian, the seniority position of the petitioner and the respondent No. 7 does not stand on the same footing, inasmuch as respondent No. 7 was appointed only in the year 1990 as Assistant Librarian. Though the petitioner was, enjoying a lower scale of pay at the initial stage of appointment, her scale of pay was later revised and upgraded. Though the petitioner was, enjoying a lower scale of pay at the initial stage of appointment, her scale of pay was later revised and upgraded. Thereafter, the petitioner and the respondent No. 7 continued to enjoy the same pay scale of Rs. 1640-2900. He also submits that under the Group 'B' Recruitment Rules of 1996, scale of pay for the post of Assistant Librarian and the post of District Librarian are shown as Rs.1640-2900, respectively. Therefore, the scale of pay of the petitioner and the respondent No. 7 are statutorily fixed and, therefore, when the Rules of 1996 are still in force, the respondents could not have differentiated the case of the petitioner from that of the respondent No. 7, more particularly, when the letter dated 1.6.2005 issued by the respondent No. 3 approving the fixation of the pay scale of respondent No. 7 was done in violation of the prescribed procedures and more particularly, the Government of Mizoram (Transaction of Business) Rules, 1997. He, therefore, submits that the letter dated 1.6.2005 is illegal and without jurisdiction and the same should also be set aside and quashed. Coming to the seniority position of the petitioner and the respondent No. 7, learned senior counsel submits that the date of appointment of the petitioner and the respondent No. 7 being not disputed, the seniority position of the petitioner and the respondent No. 7 could not have been tinkered by the respondent No. 3 in the manner that has been done. It was on the basis of such mala fide exercise on the part of the respondent No. 3 by issuing the orders whereby the seniority position of the petitioner was shown below the respondent No. 7, the respondent No. 6 was also misled and thereby had given its recommendation for promoting respondent No. 7 to the post of State Librarian. Under the circumstances, it is submitted that the impugned promotion order dated 10.2.2012 should be set aside and quashed. He strenuously submits that when the respondent No. 3 by its letter dated 5.10.2009 had referred the matter for settling the issue of seniority as well as fixation of pay with regard to the petitioner and the respondent No. 7 by the Government, it was incumbent upon the respondent No. 3 to have waited for a final decision of the State Government. The action of the respondent No. 3 has discriminated the petitioner and has caused irreparable loss to her service career. He also submits that the petitioner will be retiring within a short period of time and that she has been victimized unnecessarily whereas she should have been enjoying the fruits that the respondent No. 7 is presently enjoying. 6. Mr. Aldrin Lallawmzuala, learned Addl. A.G., Mizoram appearing for the State respondents submits that the petitioner and the respondent No. 7 were enjoying different pay scale inasmuch as when the petitioner was appointed, her pay scale was Rs. 425-800 per month and the respondent No. 7 at his initial appointment was given the pay scale of Rs. 1640-2900. He also submits that when the provisional seniority list was issued by order dated 28.6.2011, the petitioner had not represented and, therefore, the final inter se seniority list was issued on 1.8.2011. He submits that when the report of the Cabinet Sub-Committee was published in the Gazette on 15.12.1995, it was clearly stated therein that standard conversion shall not affect the pay scale of the posts which had been revised earlier by the Government. However, the standard conversion may be used to rectify certain pay scales which are lower than the comparable scale indicated in the conversion. Under the circumstances, the scale of the petitioner having been already revised by the ROP of 1973 and ROP of 1986, the standard conversion and recommended pay scale by the Cabinet Sub-Committee would not be applicable to the petitioner. In view of the above, the letter dated 1.6.2005 was issued by the respondent No. 3. It is also submitted that as the Cabinet Sub-Committee had already made its recommendation, there was no necessity for consultation of the Finance Department and the letter dated 1.6.2005 has been rightly issued by the respondent No. 3. He also submits that the petitioner does not possess a B. Lib. degree thereby her promotion to the post of State Librarian could not be considered inasmuch as the Amended Rules of 2005 describes the essential qualification for the post of State Librarian as degree in Library Science amongst others. He, therefore, submits that there was nothing wrong when the respondent No. 7 was promoted to the post of State Librarian by the order dated 10.2.2012 more particularly when he had a B. Lib. degree. 7. Learned Addl. He, therefore, submits that there was nothing wrong when the respondent No. 7 was promoted to the post of State Librarian by the order dated 10.2.2012 more particularly when he had a B. Lib. degree. 7. Learned Addl. A.G., Mizoram also drawn attention of this court to the Swamy's seniority and promotion wherein at page No. 11 para 1 it provides that "Among the persons in the feeder grades given the same grading, those in the higher Scales of pay will rank senior to those in the Lower Scale of Pay". 8. Mr. M. Zothankhuma, learned senior counsel appearing for the respondent No. 6 submits that the role of the Mizoram Public Service Commission is very limited inasmuch as they had only considered on the basis of the agenda paper submitted which consists of factors like seniority of the candidate, Relevant Recruitment Rules, Vigilance Clearance etc. Therein the agenda paper, the respondent No. 7 was senior to the petitioner and, therefore, they have recommended the respondent No. 7 for promotion after considering all the required papers. 9. I have considered the submissions forwarded by the learned counsel for the parties. 10. The petitioner was appointed as a teacher and thereafter, appointed temporarily on transfer as a District Librarian by order dated 8.2.1976 in the scale of Rs. 425-800 and subsequently confirmed on 1.10.1984. Respondent No. 7 was appointed on 15.10.1990 as Assistant Librarian in the scale of pay of Rs. 1650-2900. It is not disputed that the pay scale of the petitioner was subsequently revised and thereafter prior to the report of the Cabinet Sub-Committee both the petitioner and the respondent No. 1 were enjoying the pay scale of Rs. 1645-2900. It is also not disputed that the Recruitment Rules of 1996 provides that the pay scale of Assistant Librarian and District Librarian Would be Rs. 1640-2900. The Amended Group 'A' Rules of 2005 prescribes that Assistant Librarian and District Librarian are feeder posts to the post of State Librarian. This Amended Rules of 2005 still holds the field today. This being the position, there is no doubt that both the petitioner and the respondent No. 7 are holding the feeder post for being considered for promotion to the post of State Librarian. This Amended Rules of 2005 still holds the field today. This being the position, there is no doubt that both the petitioner and the respondent No. 7 are holding the feeder post for being considered for promotion to the post of State Librarian. When the petitioner was appointed in the year 1978 and the respondent No. 7 being appointed in the year 1990, it becomes amply clear that the petitioner is much senior to the respondent No. 3. From the materials available on record, it appears that the sole criteria adopted by the respondents making the respondent No. 7 senior to the petitioner was on the basis of pay scale and not on the basis of entry into service to the feeder post. No proper explanation has been given in the affidavit on what basis the seniority of the petitioner and the respondent No. 7 has been fixed in the manner that has been done. When the Amended Rules of 2005 holds the field and the Group 'B' Recruitment Rules provides the pay scale of Assistant Librarian and District Librarian as 1640-2900, the respondents cannot indirectly alter these Rules which has been enacted under article 309 of the Constitution of India. This being the position and the appointment of the petitioner in the year 1978 not being disputed, this court has no hesitation to come to the finding that merely on the basis of pay scale, the respondents could not have made the respondent No. 7 senior to the petitioner. In fact, by the time the Amended Rules of 2005 came into being, the petitioner was already in the zone of consideration for promotion to the post of State Librarian. 11. The submission of the learned Additional A.G. as regards the requirement of degree in Library Science for being considered to be promoted to the post of State Librarian has been considered. This court is of the opinion that the required educational qualification of degree in Library Science prescribed by the Amended Rules of 2005 is required only when the respondents resort to direct recruitment. 12. In the facts and circumstances of the case, when the post of Assistant Librarian and District Librarian are equivalent with the same duties and responsibilities, the respondents could not have made the respondent No. 7 senior to the petitioner only on the basis of a higher scale of pay. 12. In the facts and circumstances of the case, when the post of Assistant Librarian and District Librarian are equivalent with the same duties and responsibilities, the respondents could not have made the respondent No. 7 senior to the petitioner only on the basis of a higher scale of pay. Accordingly, the impugned order dated 10.2.2012 promoting the respondent No. 7 to the post of State Librarian is set aside and quashed. 13. This court has also considered the submissions made by the learned senior counsel for the petitioner that the post of Assistant Librarian and District Librarian are inter- transferable and enjoy equal status inasmuch as they also discharge the same duties. This has not been controverted by the respondents in their affidavit. Under such circumstances, it will be deemed that the State respondents have accepted the averments made by the petitioner. This court also subscribes to the decision of the hon'ble Supreme Court in the case of Sub-Inspector Rooplal and Another v. Lt. Governor through Chief Secretary, Delhi and Others, (2000)1 SCC 644 at para 17 and in the case of S. Sivaguru v. State of Tamil Nadu and Others, (2013) 7 SCC 335 at para 58. 14. On 3rd July, 2014, when this case was taken up, this court had directed the learned Addl. A.G., Mizoram to obtain instructions as to whether the letter dated 1.6.2005 was issued after taking the approval/concurrence of the appropriate authorities. Today, the learned Addl. A.G., Mizoram on instructions submits that concurrence of the Finance Department for fixation of pay is not in practice. These instructions given to the Addl. A.G., Mizoram by the respondents in the opinion of this court is contrary to the Government of Mizoram (Transaction of Business) Rules of 1987. 15. This court is of the considered opinion that the letter dated 1.6.2005 issued by the respondent No. 3 by allowing the respondent No. 7 to enjoy the recommended pay scale of the Cabinet Sub-Committee was not based on any approval of the Government and, therefore, is in violation of the Government of Mizoram (Transaction of Business) Rules of 1997. However, the fixation of pay as regards the petitioner shall be considered by the appropriate authority, i.e., the Finance Department. However, the fixation of pay as regards the petitioner shall be considered by the appropriate authority, i.e., the Finance Department. Such consideration shall be done within a period of two months from the date of receipt of the certified true copy of the judgment and order of this court. The petitioner is given liberty to furnish certified true copy of this judgment and order to the appropriate authorities and these writ petitions are accordingly disposed of. 16. The impugned order dated 10.2.2012 promoting the respondent No. 7 being already set aside, the respondents are directed to forthwith take appropriate steps including constituting of a Review DPC, if found necessary to consider the case of the petitioner along with any other eligible persons, if any, for promotion to the post of State Librarian. Such consideration be done at the earliest and not later than two months from the date of receipt of a copy of the judgment and order of this court. 17. With the above observations and directions, these writ petitions are disposed of. No cost.