Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 773 (GAU)

A. A. Laskar v. State of Mizoram

2014-08-06

LANUSUNGKUM JAMIR

body2014
JUDGMENT 1. Heard Mr. C. Lalramzauva, learned senior counsel assisted by Ms. Abigail Hmingthanpari, learned counsel appearing for the petitioner. Also heard Mr. Aldrin Lallawmzuala, learned Addl. Advocate General appearing for the respondent Nos. 1 to 4 and Mr. N. Sailo, learned senior counsel assisted by Mrs. Dinari T. Azyu, learned counsel appearing for the respondents. None appears for the respondent No. 5 i.e. Mizoram Public Service Commission and respondent No. 7. Mr. C. Lalramzauva, learned senior counsel submits that the present writ petition is directed against the order dated 9.7.2013 passed by the respondent No. 1 and the notification dated 2.8.2013 whereby the respondent No. 7 was transferred and posted as Dy. SP CPW from Dy. S.P Security. He submits that the petitioner was appointed as ASI (Mechanic) on 21.3.1984 and subsequently promoted temporarily to the post of SI (Mechanic) by order dated 30.1.1990. The petitioner was again temporarily promoted to the rank of Inspector (Mechanic) by order dated 26.11.2002 and has been continuing in that capacity till today without any further promotion to the next promotional post of Dy. S.P. Central Police Workshop. He submits that the post of Dy. SP (CPW) was created after receiving sanction from the Governor of Mizoram by a letter dated 21.3.1984. Alongwith the said post of Dy. S.P, another 11 (eleven) posts were also created. Thereafter, the post of Dy. SP (CPW) continued to be a duty post under the Mizoram Police Service in the Junior Grade. The State respondents by a notification enacted the Mizoram Police Service Rules, 2008 (hereinafter MPS Rules, 2008) which was notified in the Mizoram Gazette on 30.9.2008. In schedule 1 appended to the said MPS Rules of 2008, the post of Deputy SP in the Central Police Workshop continued to be a duty post under the Mizoram Police Service Rules, 2008 in the Junior Grade. Thereafter, the State respondents enacted the Mizoram Home Department (Group 'A' post) Recruitment Rules, 2012 which was published in the Mizoram Gazette on 10.10.2012 (hereinafter referred to as Home Department Recruitment Rules, 2012). By the said Home Department Recruitment Rules, 2012, the post of Deputy S.P (Mechanic) which was earlier under the Mizoram Police Service was brought under the Home Department wherein the post of Dy. SP (Mechanic) appeared in Annexure-5. The method for promotion to the post of Dy. By the said Home Department Recruitment Rules, 2012, the post of Deputy S.P (Mechanic) which was earlier under the Mizoram Police Service was brought under the Home Department wherein the post of Dy. SP (Mechanic) appeared in Annexure-5. The method for promotion to the post of Dy. SP (Mechanic) was from the feeder post of Inspector (Mechanic) having not less than 5 years regular service in the cadre grade. Thereafter, by a notification dated 3.1.2013, the Dy. SP (Mechanic) was de-cadred from the duty post of Mizoram Police Service. By another notification dated 31.1.2013, the post of Dy. SP (Mechanic) was corrected as Dy. SP, Central Police Workshop. The Mizoram Police Service Rules of 2008 was amended by the Mizoram Police Service (Amendment) Rules, 2012 (MPS Rules of 2012) which was also notified in the Mizoram Gazette on 21.3.2013. By the said MPS Rules of 2012, the post of Dy. SP (CPW) was removed from the Junior Grade. It is therefore the submission of Mr. C. Lalramzauva, learned senior counsel for the petitioner that with the MPS Rules of 2012 being brought into force, the post of Dy. SP (CPW) came under the Home Department and was the next promotional post from the post of Inspector (Mechanic). The petitioner who is serving as Inspector (Mechanic) since the year 2002 was therefore eligible to be promoted to the post of Dy. SP (CPW). Accordingly, some time in the early part of 2013, a vacancy arose for filling up the post of Dy. SP (CPW) under Home Department and therefore the State respondents had proposed the name of the petitioner for consideration to the respondent No. 5 i.e. Mizoram Public Service Commission. On such proposal, the respondent No. 5 by a letter dated 12.4.2013 conveyed the recommendation of the MPSC for promotion of the petitioner to the post of Dy. SP (CPW) under Home Department. The recommendation of the respondent No. 5 was also forwarded to the Home Department by the Department of Personnel & Administrative Reforms by ID note dated 19.4.2013. Learned senior counsel for the petitioner submits that despite such steps being taken by the State respondents, the case of the petitioner has been stalled without giving any reason by the respondents thereby depriving the petitioner to be promoted to the higher post of Dy.SP (CPW). 2. Mr. Learned senior counsel for the petitioner submits that despite such steps being taken by the State respondents, the case of the petitioner has been stalled without giving any reason by the respondents thereby depriving the petitioner to be promoted to the higher post of Dy.SP (CPW). 2. Mr. C. Lalramzauva, learned senior counsel also submits that the respondent No. 6 as writ petitioners had also approached this Court by way of WP(C) No. 36/2013 challenging the notification dated 3.1.2013 by which the post of Dy. S.P (Mechanic) was decadred from the duty post of Mizoram Police Service and also the notification dated 31.1.2013 correcting the name of the post of Dy. SP (Mechanic) to that of Dy. SP(CPW). This Court by order dated 23.4.2013 had disposed of the WP(C) No. 36/2013 directing the respondent No. 1 to consider the representation dated 8.4.2013 filed by the writ petitioner therein/respondent No. 6 and pass appropriate order thereon in accordance with law after giving reasonable opportunity of hearing to the representative of the petitioner within a period of 1 (one) month from the date of receipt of the certified copy of the order. Consequently, the respondent No. 1 i.e. Chief Secretary to the Government of Mizoram had passed an order dated 9.7.2013 disposing of the representation dated 8.4.2013 in compliance of the order of this Court. In the said order dated 9.7.2013, amongst others, it is also reflected that the representation of the Association/respondent No. 6 are found to be genuine and that the respondent No. 1 is of the view that the post of Dy. SP (CPW) shall be re-encadred to the duty post of Mizoram Police Service (Amendment) Rules, 2012. It was also stated that the process for amendment of the Schedule-I of the Mizoram Police Service Rules shall be initiated forthwith. He submits that the order dated 9.7.2013 is not tenable in law inasmuch as Mizoram Police Service (Amendment) Rules, 2012 cannot be amended by the respondent No. 1 by the order dated 9.7.2013. The respondent No. 1 had also exceeded its jurisdiction by making the observation in the order dated 9.7.2013 and therefore the same should be set aside and quashed. The learned senior counsel for the petitioner also submits that as the post of Dy. The respondent No. 1 had also exceeded its jurisdiction by making the observation in the order dated 9.7.2013 and therefore the same should be set aside and quashed. The learned senior counsel for the petitioner also submits that as the post of Dy. SP (CPW) still continues to be under the Home Department Recruitment Rules, 2012 till date, it was incumbent upon the respondents to promote the petitioner to the post of Dy. SP(CPW), more particularly when the Mizoram Public Service Commission has already given its recommendation in favour of the petitioner. However, by the impugned notification dated 2.8.2013, the respondents have illegally posted the respondent No. 7 on transfer and posting against the post of Dy. SP (CPW). This is not permissible in law inasmuch as the respondent No. 7 is outside the cadre of the petitioner. This being the admitted position, the respondents could not have issued the impugned notification dated 2.8.2013 transferring and posting the respondent No. 7 to the post of Dy. SP (CPW). He therefore, submits that the impugned order dated 9.7.2013 and the impugned notification dated 2.8.2013 be set aside and the respondents be directed to promote the petitioner to the post of Dy. SP (CPW). He has also placed reliance in the cases of:-- "a) A. Manoharan & Ors. v. Union of India & Ors. reported in (2008) 3 SCC 641 b) State of Rajasthan v. R. Dayal & Others reported in (1997) 10 SCC 419 c) K. Kuppusamy &Anr. v. State of T. N. & Ors. reported in (1998) 8 SCC 469 d) S. Sivaguru v. State of Tamil Nadu & Ors. reported in (2013) 7 SCC 335 ." 3. Mr. Aldrin Lallawmzuala, learned Addl. Advocate General, Mizoram submits that the order dated 9.7.2013 passed by the respondent No. 1 was in compliance of the direction of this Court's order dated 23.4.2013 while disposing of WP(C) No. 36/2013. There is nothing wrong in the order dated 9.7.2013 inasmuch as the observation made by the respondent No. 1 therein cannot be taken to be final as further steps subsequent to the order dated 9.7.2013 will have to be taken in accordance with laid down procedures. Therefore, no interference is called to the order dated 9.7.2013. There is nothing wrong in the order dated 9.7.2013 inasmuch as the observation made by the respondent No. 1 therein cannot be taken to be final as further steps subsequent to the order dated 9.7.2013 will have to be taken in accordance with laid down procedures. Therefore, no interference is called to the order dated 9.7.2013. He also submits that the impugned notification dated 2.8.2013 was by way of an interim measure inasmuch as the State respondents are contemplating for amending the Mizoram Police Service (Amendment) Rules, 2012. It is also the submission of the learned Addl. A.G that the notification dated 2.8.2013 was stayed by this Court and, therefore all steps consequent to the order dated 9.7.2013 were stopped as the State respondents were under the impression that the same is sub-judiced before this Court. He therefore submits that the notification dated 2.8.2013 also requires no interference. 4. Mr. N. Sailo, learned senior counsel appearing for the respondent No. 6 submits that the members of the Association are facing heavy stagnation in their service for their next promotion. When the notification dated 3.1.2013 was issued decadring the post of Dy. SP (CPW) from the Mizoram Police Service and the name of the post of Dy. SP (Mechanic) being corrected to Dy. SP (CPW) by the notification dated 31.1.2013, the respondent No. 6 being aggrieved had approached this Court by WP(C)No. 36/2013. After considering the grievances made in the said writ petition, direction was given by the order dated 23.4.2013 to the respondent No. 1 to dispose of the representation dated 8.4.2013 within one month. The order dated 9.7.2013 was therefore an order of compliance of the direction of this Court and therefore it would not be in the interest of justice if the said order is interfered with at this stage. He submits that all along, after the creation of the post of Dy. SP (CPW) in the year 1998, the said post was under the Mizoram Police Service as a duty post. Even when the MPS Rules of 2008 was enacted by the State respondents, the post of Dy. SP (CPW) continued to be a duty post as a Junior Grade under the Mizoram Police Service. It was only by the notification dated 3.1.2013 that the said post of the Dy. SP (CPW) was decadred and the subsequent re-naming of Dy. SP (Mechanic) to that of Dy. SP (CPW) continued to be a duty post as a Junior Grade under the Mizoram Police Service. It was only by the notification dated 3.1.2013 that the said post of the Dy. SP (CPW) was decadred and the subsequent re-naming of Dy. SP (Mechanic) to that of Dy. SP (CPW) by the notification dated 31.1.2013. The said decadrement of the post of Dy. SP (CPW) was also done without taking into confidence the members of the respondent No. 6. He submits that the letter dated 29.3.1998 does not specify the post of Dy. SP as being under the Mechanic Wing. This being the position, the post of Dy. SP under the Central Police Workshop continued to be under the Mizoram Police Service till the MPS Rules 2012 was enacted amending the MPS Rules 2008. The members of the respondent No. 6 were illegally deprived of their promotional avenue when 1 (one) post of Dy. SP (CPW) was wrongly taken away. Therefore, the respondent No. 1 after hearing the respondent No. 6 and after considering the genuine grievances and difficulties faced by the members of the Association had rightly reflected in his order dated 9.7.2013 that the respondent No. 6 had a genuine case and that the post of Dy. SP (CP W) should be again en-cadred under the Mizoram Police Service (Amendment) Rules, 2012. 5. I have heard the submission forwarded by the learned counsel appearing for the respective parties. 6. From a perusal of the materials available on record, it is seen that after the amendment of the MPS Rules of 2008 by the MPS Rules of 2012, the post of Dy. SP (CPW) stood deleted from the Mizoram Police Service and was en-cadred under the Mizoram Home Department (Group 'A' post) Recruitment Rules, 2012. Till date, the said MPS Rules of 2012 nor the Home Department Recruitment Rules, 2012 has been amended. In other words, the aforesaid Rules are still in force. The vacancy to the post of Dy. SP (CPW) arose in the early part of 2013 when the aforesaid two Rules were in force. The State respondents had thereafter proposed the name of the petitioner for consideration by the respondent No. 5 i.e. Mizoram Public Service Commission which had also given its recommendation for promotion of the petitioner to the post of Dy. SP (CPW). 7. SP (CPW) arose in the early part of 2013 when the aforesaid two Rules were in force. The State respondents had thereafter proposed the name of the petitioner for consideration by the respondent No. 5 i.e. Mizoram Public Service Commission which had also given its recommendation for promotion of the petitioner to the post of Dy. SP (CPW). 7. The law is settled in so far as what rules would apply when vacancy of a particular post arises at a relevant point of time. In the case of A. Manoharan (Supra), the Supreme Court has held that vacancy which occurred prior to the amendment of the Rule would be governed by the original Rule and not by the Amendment Rule. Further, in the case of K. Kuppusamy(Supra), the Hon'ble Supreme Court has held that statutory rules cannot be overridden by executive orders or executive practice. Merely because the Government had taken a decision to amend the rules does not mean that the rule stood obliterated. Till the rule is amended, the rule applies. 8. In the present case in hand, it is not disputed that the vacancy to the post of Dy. SP (CPW) arose in the early part of 2013 when the Home Department Recruitment Rules, 2012 was in force. The respondents thereafter had also taken further steps for considering the case of the petitioner which culminated in the recommendation of the petitioner for promotion by the respondent No. 5. This being the position and the law being settled in this respect, this Court is of the opinion that consideration of the case of petitioner for promotion to the post of Dy. SP (CPW) must be made under the Home Department Recruitment Rules, 2012. The State respondents are directed to forthwith take steps for consideration of the case of the petitioner for promotion to the post of Dy. SP(CPW) basing on the recommendation of the Mizoram Public Service Commission contained in the letter dated 12.4.2013. While considering the case of the petitioner, the respondents shall also take into consideration that the respondent No. 5 had made its recommendation as early as 12.4.2013. 9. SP(CPW) basing on the recommendation of the Mizoram Public Service Commission contained in the letter dated 12.4.2013. While considering the case of the petitioner, the respondents shall also take into consideration that the respondent No. 5 had made its recommendation as early as 12.4.2013. 9. As regard the next contention of the learned senior counsel appearing for the petitioner for setting aside and quashing the order dated 9.7.2013, this Court is of the considered opinion that the observation made impugned order dated 9.7.2013 was by way of disposing of the representation dated 8.4.2013 which had been submitted by the respondent No. 6. The observation made therein appears to be not final as no final decision has been taken by the State respondents. Therefore, this Court sees no reason to interfere with the order dated 9.7.2013 passed by the respondent No. 1. It is left to the State respondents to take any appropriate steps if it deems fit. However, the same should be in accordance with law. If the State respondents take such steps, the communication dated 14.3.2013 which was reflected in the order dated 23.4.2013 of this Court in WP(C) No. 36/2013 may also be taken into consideration. With the above observation and direction, this writ petition is partially allowed. No cost. Petition Partly allowed