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2015 DIGILAW 1122 (GAU)

C. VANLALZARA v. SECRETARY OF MIZORAM

2015-09-01

MICHAEL ZOTHANKHUMA

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JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. J.C. Lalnunsanga, counsel for the petitioner. Also heard Mr. Aldrin Lallawmzuala, learned Additional Advocate General, Mizoram for the respondents. 2. The petitioner's counsel submits that the petitioner was appointed as M.R. Driver by the Director, Institutional Finance and Small Savings, Finance Department on 4.6.1999. The private respondent was appointed as Muster Roll Driver in the same Department on 20.4.2000. 3. The petitioner along with 13 other M.R. employees had filed W.P.(C) No. 68 of 2008 praying for regularisation under the Regularisation of M.R. Employees Mizoram Scheme, 2000. This Court disposed of W.P.(C) No. 68 of 2008 vide Order dated 25.7.2008 directing the respondent authorities to consider regularisation of the petitioner and the other 13 petitioners as per the Regularisation of M.R. Employees Mizoram Scheme, 2000. 4. The petitioner's counsel submits that in pursuance to the Judgment & Order dated 25.7.2008 passed in W.P.(C) No. 68 of 2008, a DPC meeting was held on 29.8.2011 wherein candidates including the petitioner and respondent No.4 were considered for regularisation to the post of driver. The respondent No.4 was recommended for appointment to the post of Driver under Directorate of Institutional Finance and State Lottery. The petitioner's counsel submits that the DPC meeting held on 29.8.2011 made it's selection on the basis of the performance report for the last 5 years i.e. 2006-07, 2007-08, 2008-09, 2009-10, 2010-11. 5. The petitioner's counsel submits that the DPC recommendation of the respondent No.4 is illegal and unfair inasmuch as the petitioner joined the post of M.R. Driver in the same Department prior to the respondent No.4. Thus, the petitioner being senior, the petitioner should have been selected and appointed as driver. The 2nd point urged by the petitioner is the fact that the performance reports of the candidates which are annexed to the affidavit-in-opposition have been back dated and that the said performance report do not have any dates. The 3rd point submitted by the petitioner's counsel is that the contents of the performance report made in the year 2007-2011 should have been communicated to the petitioner, so as to enable him to improve his performance. In this matter he relied upon the Judgment of the Apex Court in Dev Dutt v. Union of India, reported in 2008 8 SCC 725 . In this matter he relied upon the Judgment of the Apex Court in Dev Dutt v. Union of India, reported in 2008 8 SCC 725 . The petitioner's counsel at this stage submitted that as per of Dev Dutt v. Union of India and others (supra), the petitioner being an employee of the State, he should have been given the performance report as has been stipulated by the Apex Court so as to enable him to improve his work. 6. The petitioner's counsel also submits that he had been involved in an accident on 24.03.2009. He also submits that Dr. Lily Chhakchhuak had given a certificate on 17.11.2009 to the effect that the petitioner had recovered from his illness and was fit to resume his duties. Accordingly, the petitioner was allowed to resume his duties w.e.f. 1.12.2009 on production of the medical fitness certificate. The petitioner's counsel also submits that despite being certified as medically fit to resume his duties, the petitioner's service was utilised as Peon contrary to his engagement as a Driver. 7. The petitioner's counsel thus submits that the impugned Order dated 14.9.2011 appointing the respondent No.4 as Driver on regular basis should be set aside and the petitioner should be regularised as per Regularisation of M.R. Employees Scheme, 2000. 8. Mr. Aldrin Lallawmzuala, learned Addl. Advocate General, Mizoram submits that the petitioner as M.R. Driver was being paid @ Rs.65/- per day w.e.f. 12.4.1999 and not 4.6.1999. He also submits that the petitioner met with an accident on 24.3.2009 in which he had suffered head injury and he could not perform his duties for 7 (seven) months and 22 days. The Addl. Advocate General, Mizoram also submits that the petitioner was subsequently allowed to resume his duty on production of medical certificate. On resumption of his duties, the petitioner was deputed to the Finance Department as Driver to the then Deputy Secretary who later reported that the petitioner was not fit to drive and hence the petitioner was sent back to the Directorate of Institutional Finance and State Lottery where he is serving as a peon. 9. The Addl. Advocate General also submits that the performance report in respect of the petitioner was not satisfactory and he was not found fit for regularisation as driver under Clause 4 of the Regularisation of M.R. Employees Scheme, 2000, herein after referred to the 2000 Scheme. 9. The Addl. Advocate General also submits that the performance report in respect of the petitioner was not satisfactory and he was not found fit for regularisation as driver under Clause 4 of the Regularisation of M.R. Employees Scheme, 2000, herein after referred to the 2000 Scheme. Clause 4 of the 2000 Scheme is reproduced below : "4. Regularisation (i) Any person who has been continuously engaged in Muster Roll Employees capacity in Group 'C' or 'D' categories in the Department for at least 7 (seven) years shall be eligible for regularisation in corresponding regular post prescribed for direct recruitment in the concerned Recruitment Rules, subject to availability of vacancy. Provided that such Muster Roll employees should possess the required educational and other qualifications prescribed in the relevant Recruitment Rules. Provided further that such regularisation shall be made subject to satisfactory performance reports for the last 5 years prepared by the Controlling Officers. (ii) such regularisation shall be considered in order of the length of service in the Muster Roll Employees capacity. (iii) 25% of vacant posts under direct recruitment may be reserved for Muster Roll employees or as the Government may determine from time to time." 10. The Addl. Advocate General also submits that due to humanitarian ground, the petitioner was allowed to work as Muster Roll Peon as he was not fit to drive a vehicle after his accident. The Addl. Advocate General submits that the respondents have not committed any illegality in appointing respondent No.4, which is as per 2000, Scheme. 11. I have heard the learned counsel for the parties and have perused of the materials on records. 12. One of the questions that has to be decided is as to whether the objective assessment made by the authorities can be challenged in a writ proceeding. It is clear that, though the decision making process can be challenged in a writ proceeding, a Court cannot substitute its own view with regard to an objective assessment. 13. The question that has to be decided is as to whether the respondents were justified in not regularising the petitioner as a driver even though he was senior to the private respondent. The fact that the petitioner suffered head injuries on 24.3.2009 and that he could not perform his duties for 7 months and 22 days is not in dispute. The question that has to be decided is as to whether the respondents were justified in not regularising the petitioner as a driver even though he was senior to the private respondent. The fact that the petitioner suffered head injuries on 24.3.2009 and that he could not perform his duties for 7 months and 22 days is not in dispute. It is also not in dispute that on resuming his service as a Driver, the petitioner was deputed to the Finance Department to work as a Driver. However, due to the complaint made by the Deputy Secretary, Finance Department, the petitioner was sent back to the Directorate of Institutional Finance and State Lottery. There, the petitioner was made to work as a Peon and not as a Driver. Though, no materials have been shown as to why the petitioner was made to work as a Peon. This Court cannot lose sight of the fact that the petitioner had met with an injury in the year 2009 and a complaint has been made when he rejoined the post of Driver after nearly 8 months. The petitioner has also not challenged at any time his change of engagement from Driver to Peon after he rejoined the Directorate of Institutional Finance w.e.f. 1.12.2009. The petitioner not having worked as a Driver thereafter, it is clear that the performance of the petitioner as a Driver cannot be evaluated after 2009. 14. The petitioner's counsel contention that the Doctor had given a certificate on 17.11.2009 to the effect that the petitioner recovered from his illness and was fit to resume his duties does not show that the petitioner is fit to resume his duties as a Driver subsequent to his rejoining on 01.12.2009, i.e. after his accident. The petitioner has also submitted a certificate dated 22.5.2008 issued by the Director, Institutional Finance and State Lottery, Mizoram which states as follows :- "To Whom It May Concern This is to certify that Mr/Mrs C. Vanlalzara S/o/D/o C.H. Hranglura(L) is working as Muster Roll Driver with effect from 4.6.1999 till date. Sd/- Director Institutiional Finance & State Lottery Mizoram : Aizawl" 15. The above certificate also does not show that the petitioner worked as a driver beyond 22.05.2008 or that he was fit to work as a driver after his accident. Sd/- Director Institutiional Finance & State Lottery Mizoram : Aizawl" 15. The above certificate also does not show that the petitioner worked as a driver beyond 22.05.2008 or that he was fit to work as a driver after his accident. The petitioner's counsel submits that the performance report of the candidates have been back dated cannot be proved by this Court and is a disputed question of fact. With regard to the petitioner's contention that he should have been given the performance report each every year so as to enable to improve his work as per the Apex Court decision in Dev Dutt v. Union of India (supra), I find that as the petitioner has not been able to work as a Driver from the time of his accident on 24.3.2009 where he suffered head injuries, the communication of the performance report to the petitioner would not have been much use to the petitioner. Also the respondent authorities are in a better position to observe the petitioner and it would not be prudent for this Court to substitute it's view on the assessment made by the respondent authorities on the performance of the petitioner vis-a-vis the respondent No. 4. The further point to be considered is as to whether a muster-roll employee is a Govt. servant. There are regular Govt. employees and temporary Govt. employees. M.R employees do not come within the ambit of a regular or temporary employee. They are employees employed on a daily wage basis and are on the muster roll of their employers for a limited period of time. In my view, the directions passed in Dev Dutt v. Union of India (supra), which are meant for regular and temporary Govt. employees, cannot include M.R. employees. The directions passed in Dev Dutt (supra) cannot be stretched that far to include daily wage labourers (MR employees). The analogy of the Dev Dutt (supra), to my understanding, cannot be applied in the present case. 16. In view of the above reasons, I do not find any reasons to interfere with the impugned Order dated 14.9.2011 by which the service of the respondent No. 4 as a driver has been regularized. 17. In view of the above reasons, this writ petition is dismissed.