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2014 DIGILAW 900 (GAU)

Z. R. Thasangzuala v. State of Mizoram & ORS.

2014-09-22

L.S.JAMIR

body2014
1. Heard Mr. A.R. Malhotra, learned counsel appearing for the petitioner as well as Mr. Aldrin Lallawmzuala, learned Additional Advocate General, Mizoram appearing for the State respondents. 2. By this writ petition, the petitioner is challenging the impugned office memorandum dated 30.4.2004 issued by the Financial Commissioner, Government of Mizoram whereby it was provided that no incentive for acquiring higher/fresh qualification shall be admissible except for the qualification listed in the annexure appended thereto. 3. Mr. A.R. Malhotra, learned counsel appearing for the petitioner submits that the petitioner on recommendation of Mizoram Public Service Commission was appointed to Grade ‘V’ of Mizoram Engineering Service (PHE Cadre) by a notification dated 14.12.2000. Subsequently, petitioner was confirmed as Engineering Grade-V by order dated 28.2.2003 w.e.f. 16.12.2002. Thereafter, the petitioner was nominated and selected by the respondents for pursuing PG Course for the session 2003-04 at the All India Institute of Hygiene and Public Health Engineering/ Environmental Engineering, Kolkata. Accordingly, the petitioner was released from his office w.e.f. 16.7.2003 to enable him to join PG Course of M.E.(PH) at AIIH & PH, Kolkata by office order 16.7.2003. Further, by another order/notification dated 16.7.2003, the Department of PHE, Government of Mizoram in relaxation of rule 50(5)(1) of CSS (Leave) Rules, 1972, the petitioner was granted 24 months study leave w.e.f. 11.7.2003 or with effect from the date of availing for pursuing P.G. Course for the Session 2003-04 at All India Institute of Hygiene and Public Health Engineering/Environmental Engineering, Kolkata. The petitioner proceeded for pursuing P.G. Course and completed the same in the year 2004 and a certificate to that effect was issued to the petitioner in the year 2006. 4. Mr. A.R. Malhotra, learned counsel appearing for the petitioner submits that while the petitioner entered service, he was governed by the Mizoram Engineering Service Rules, 2001 ('the Rules of 2001'). Therein,, rule 26(2)(ii) provides that the members of the service who obtained higher education than the prescribed qualification for direct recruitment under clause (a) of rule 12, after joining Mizoram Engineering Service may be given incentives of 2 increments. While the petitioner was about to complete his P.G. course, the Department of Finance Department (PRU) had issued the impugned office memorandum dated 30.4.2004 whereby such incentive provided under rule 26 of the Rules of 2001 was curtailed. While the petitioner was about to complete his P.G. course, the Department of Finance Department (PRU) had issued the impugned office memorandum dated 30.4.2004 whereby such incentive provided under rule 26 of the Rules of 2001 was curtailed. He also submits that by the same OM dated 30.4.2004, all Administrative Heads and Head of department concerned with the framing of Service Rules and Regulations were expected to suitably amend the Service Rules and Regulations which contain provisions for grant of incentive for acquiring higher/fresh qualification. The office memorandum dated 30.4.2004 was made effective from 1.4.2004. He also, submits that thereafter, the respondents had enacted the Mizoram Engineering Service Rules, 2013 (‘Rules of 2013') by which the Rules of 2001 was repealed. The said Rules of 2013 also stipulates at rule 29 that the members of the service who obtained higher technical educational qualification than the prescribed qualification for direct recruitment under clause (a) of rule 11 shall be given incentive. The case of the petitioner falls under rule 29(ii) where it provided for two increments after acquiring Post Graduate Degree. 5. Mr. A.R. Malhotra, learned counsel for the petitioner submits that when the Rules of 2001 provided for incentives after obtaining higher education than the prescribed qualification, the respondents could not have issued the OM dated 30.4.2004 by which the Rules of 2001 was indirectly being amended. He also submits that executive instructions cannot override the Rules or Regulations which has been framed under article 309 of the Constitution of India and he places his reliance in the case of State of Gujarat v. Akhilesh C. Bhargav and Others, (1987) 4 SCC 482 . 6. Mr. A.R. Malhotra, learned counsel appearing for the petitioner submits that the OM dated 30.4.2004 was issued only after the petitioner had proceeded for higher course in the year 2003. He, therefore, submits that such office memorandum could have no retrospective effect thereby depriving the petitioner of getting his two increments which was provided by rule 26(2)(ii) of the Rules of 2001. Further submission has been made that after the respondents had issued the OM dated 30.4.2004, they had again enacted the Rules of 2013 under Article 309 of the Constitution by which the same incentive provided under the Rules of 2001 was retained. Further submission has been made that after the respondents had issued the OM dated 30.4.2004, they had again enacted the Rules of 2013 under Article 309 of the Constitution by which the same incentive provided under the Rules of 2001 was retained. This being the position, he submits that the OM dated 30.4.2004 requires interference with a further direction to the State respondents to allow, the petitioner to enjoy two increments as was provided by the Rules of 2001. Lastly, Mr. A.R. Malhotra, learned counsel submits that when the OM dated 30.4.2004 was issued with the cutoff date as 1.4.2004, the State respondents has given no basis for having the said cutoff date. This being the position, the cutoff date of 1.4.2004 is not tenable in law and places reliance in the case of State of Tripura and Others v. Bijay Choudhury and Others, 2010 (5) GLT 447. 7. Mr. Aldrin Lallawmzuala, learned Additional Advocate General submits that by the OM dated 30.4.2004, the State respondents has provided for giving a lump-sum incentive as provided under the Rules of 2001. This was done in conformity with the Government of India's order No. 15 below Rules 27 of the Fundamental Rules. He also submits that the OM dated 30.4.2004 was issued before the petitioner had completed his P.G. Course and, therefore, there was nothing wrong in the said OM and the petitioner has no ground for agitating against the said OM. As the OM dated 30.4.2004 had come into effect prior to the completion of acquiring the P.G. Degree of Engineering, the petitioner was entitled to only lump-sum incentive that was available in the said OM dated 30.4.2004. Under these circumstances, he submits that OM dated 30.4.2004 requires no interference and the present writ petition is liable to be dismissed. 8. I have heard learned counsel appearing for the parties. 9. When the petitioner had entered service in the year 2000 as well as completed the P.G. Degree in the year 2004, the Rules of 2001 was in force. Rule 26 of the Rules of 2001 provides as under: "26. (1) The members of the service shall be entitled to such scales of pay and allowances as may be authorized by the Government from time-to-time. Rule 26 of the Rules of 2001 provides as under: "26. (1) The members of the service shall be entitled to such scales of pay and allowances as may be authorized by the Government from time-to-time. (2) The members of the service who obtained higher education than the prescribed qualification for direct recruitment under clause (a) of rule 12, after joining Mizoram Engineering Service may be given incentives as follows: (i) Post graduate diploma in Engineering/ Architecture relevant to the work of Officer. - 1 increment (ii) Post Graduate degree in Eng./Arch, relevant to the work of Officer. - 2 increments (iii) Doctor of philosophy in Eng./Arch. Relevant to the work of Officer. - 3 increments Provided that the advance increment shall not affect the inter-se- seniority of the member of the service.” 10. While the said Rules of 2001 was in force, the Department of Finance issued the impugned OM dated 30.4.2004. The said OM is also reproduced herein below for proper adjudication of the matter: "GOVERNMENT OF MIZORAM FINANCE DEPARTMENT (PRU) OFFICE MEMORANDUM Dated Aizawl, the 30th April, 2004 No. A. 26019/1/99-FIN(PRU): The issue of granting incentive to Government employees for having acquired higher/fresh qualification has been engaging the attention of the Government for quite some time and the undersigned is directed to bring the following to the notice of all Administrative Heads and I leads of Departments for information and compliance: (i) No incentive is admissible to Government employees who acquired higher/fresh qualification by taking study leave and/or who are sponsored by the Government though they may be entitled to the incentive in terms of Service Rules/ Regulations applicable to them. (ii) No incentive for acquiring higher /fresh qualification shall be admissible except for the qualifications listed in the Annexure appended herewith. (iii) Payment of incentive to Government employees who acquired higher/ fresh qualification by taking study leave /sponsored by the Government should be stopped w.e.f. 1.4.2004. (iv) All Administrative Heads and Head of Departments concerned with the framing of Service Rules and Regulations are expected to suitably amend the Service Rules and Regulations which contain provisions for grant of incentive for acquiring higher/fresh qualifications, so as to conform to Government of India's order No. 15 below rules 27 of the Fundamental Rules (Swamy’s Compilation of FR&SR, 16th Edition, 2003). (v) No proposal for grant of incentive for acquiring higher/fresh qualification should be submitted to Finance Department unless the employees to whom the incentive is proposed to be granted fulfill(s) the eligibility criteria mentioned in sub-para (i) and (ii) above. This Office Memorandum shall take effect from 1.4.2004. Sd/- ROCHILASAIAWI Financial Commissioner, Government of Mizoram." From the above, it is noted that the OM dated 30.4.2004 intends to amend the Rules of 2001. Further, the OM provides that the effective date would be 1.4.2004. 11. In the case of Akhilesh C. Bhargav (supra), the hon'ble Supreme Court at paragraph 7 while referring to the ratio laid down by the Constitutional Bench judgment in Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910 has quoted as under: "... .We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.” 12. Again, in the case of Ajaya Kumar Das v. State of Orissa and Others, (2011) 11 SCC 136 , the hon'ble Supreme Court has held as under: .. It is well settled that the statutory rules framed under article 309 of the Constitution can be amended only by a rule or notification duly made under article 309 arid not otherwise. Whatever be the efficacy of the executive orders or circulars or instructions, statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace the statutory rules. The Rules made under article 309 of the Constitution cannot be tinkered by the administrative instructions or circulars.” 13. Whatever be the efficacy of the executive orders or circulars or instructions, statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace the statutory rules. The Rules made under article 309 of the Constitution cannot be tinkered by the administrative instructions or circulars.” 13. Further, in the case of Union of India v. Somasundaram Viswanath and Ors., (7989) 1 SCC 175, the hon'ble Supreme Court further held as under: "If there is a conflict between the executive instructions and the rules made under the proviso to article 309 of the Constitution of India, the rules made under proviso to article 309 of the Constitution of India prevail, and if there is a conflict between the rules made under the proviso to article 309 of the Constitution of India and the law made by the appropriate Legislature the law made by the appropriate Legislature prevails.” 14. In the present case in hand, what is noticed is that there is a conflict between the OM dated 30.4.2004 and the erstwhile Rules of 2001 and the present Rules of 2013. In such a conflict, the OM dated 30.4.2004 has to make way in order to allow the Rules framed under the proviso to Article 309 of the Constitution to prevail. 15. This being the settled position of law, the State respondents cannot amend the Rules of 2001 by way of issuing an administrative instructions under the guise of the OM dated 30.4.2004. The same is not permissible in law and, therefore, the OM dated 30.4.2004 is held illegal. 16. The OM dated 30.4.2004 was made effective from 1.4.2004. The State respondents have given no explanation on what basis the said cut-off date has been drawn. The affidavit-in-opposition is also silent to that effect. In the case of Bijoy Choudhiiry (supra), the Division Bench of this court has held that notwithstanding the power and authority of the Government to choose a particular date as cut-off date while extending certain benefits, when questioned in court of law such choice has to be justified. In absence of such justification, selection of cut-off date was held to be arbitrary. 17. Another important point of note is that after the issuance of the OM dated 30.4.2004, the State respondents have enacted the Rules of 2013 whereby the Rules of 2001 was repealed. In absence of such justification, selection of cut-off date was held to be arbitrary. 17. Another important point of note is that after the issuance of the OM dated 30.4.2004, the State respondents have enacted the Rules of 2013 whereby the Rules of 2001 was repealed. The Rules of 2013 was to come into force from the date of publication in the Official Gazette. The same was published in the Mizoram Gazette on 23.9.2013. By the said Rules of 2013, the incentive that was allowed by rule 26 the Rules of 2001 is still retained in rule 29 of the Rules of 2013. This would go to show that the Stale respondents still intends to give incentive to those employees who obtains higher technical educational qualification than the prescribed qualification for direct recruitment. 18. In the facts and circumstances of the case, the OM dated 30.4.2004 which has already been held to be illegal is set aside and quashed. 19. The State respondents are directed to take steps forthwith to allow the petitioner to enjoy the incentives provided under rule 26 of the Rules of 2001 i.e. two increment. Such steps be completed within a period of three months with effect from the date of receipt of a certified copy of the judgment and order of this court. 20. Writ petition is allowed. No cost.