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2015 DIGILAW 1334 (GAU)

Hemsat Chongloi v. State of Mizoram

2015-10-13

B.K.SHARMA, M.R.PATHAK

body2015
JUDGMENT : B.K. Sharma, J. Both the appeals involved against the same judgment & order dated 5th September, 2012 passed in WP(C) No.72/2011, one preferred by the private respondents and the other preferred by the State of Mizoram, have been heard together and are being disposed of by this common judgment & order. 2. By the aforesaid judgment & order dated 5th September, 2012, the writ petition that was preferred by the respondent Nos.5 and 6 in Writ Appeal No.3/2012 has been allowed by setting aside and quashing the minutes of the Mizoram Public Service Commission (MPSC) meeting held on 4th August, 2011 and the consequential recommendation of the MPSC also dated 4th August, 2011. The official respondents were also directed to convene a review DPC to consider the case of the writ petitioners along with the respondent Nos.5 and 6, who are the appellants in Writ Appeal No.3/2012. 3. The matter pertains to promotion to the post of Assistant Engineer from amongst the Junior Engineers, who are diploma holders. As per the Recruitment Rules, 35% of the total posts of each cadre in the Mizoram Engineering Service shall be reserved for filling up from the panel of Junior Engineers or Draughtmen Grade-I who may be considered fit for promotion by the Government after passing examinations in Engineering and Accounts for Junior Engineers, unless exempted by special or general order. For a ready reference, the relevant Rule, namely, Rule 11(2) of the Mizoram Engineering Service Rules, 2001 is quoted below: "11.(2) Departmental Promotion: 35% of the total posts in Engineering Grade-V of each cadre in the Mizoram Engineering Service shall be reserved for filling up from the panel of Junior Engineers or Draughtmen Grade-I who may be considered fit for promotion by the Government after passing Examinations in Engineering and Accounts for Junior Engineers, unless exempted by special or general order as under: (a) By selection from candidates possessing Diploma in appropriate line from recognised Institute(s) who had already completed 5 years of regular service as Junior Engineer or equivalent, and (b) By selection from Non Diploma Junior Engineers who have completed 12 years regular service in the rank of Junior Engineers or Draughtmen Grade-I as the case may be." 4. In the instant case, the writ petitioners, i.e. the respondent Nos.1 and 2, were found ineligible for consideration for promotion to the post of Assistant Engineer because of the cut off date that was fixed for eligibility vide the Office Memorandum dated 15th July, 2010 (Annexure-5). Prior to that also another cut off date was fixed vide Office Memorandum dated 24th January, 2005 (Annexure- 3). Be it stated here that the Mizoram Engineering Service Rules, referred to above, came into being 2001 with its publication in the Official Gazette on 6th December, 2001. 5. As per the first Office Memorandum dated 24th January, 2005, the crucial date for determining eligibility for promotion was 1st April of the vacancy year. However, the said Office Memorandum was superseded by Annexure-5 Office Memorandum dated 15th July, 2010 laying down the crucial date for determining eligibility as 1st January immediately preceding the vacancy year. For instance, the crucial date for the vacancy year 2009-10 would be 1st January, 2009. 6. In the case in hand, the selection for promotion was conducted on 4th August, 2011 by the Mizoram Public Service Commission. Thus the crucial date for determining the eligibility was 1st January, 2011. It will be pertinent to mention here that as indicated in the minutes of the meeting of the MPSC, 1(one) vacancy had arisen during the year 2010-11 and 2(two) during the year 2011-12. Thus, for the writ petitioners the crucial date for determining their eligibility was 1st January, 2010 in respect of 1(one) vacancy and 1st January, 2011 in respect of the remaining 2(two) vacancies. When the petitioners came to know about the selection likely to be conducted, they made the Annexure-6 representation dated 5th May, 2011 praying for relaxation of the eligibility in respect of clearing the departmental examination. By the time they made the representation, they had cleared the departmental examination, 2011, results of which were declared on 2nd May, 2011. The examination was held on 10th and 11th March, 2011. Their representation was forwarded by Annexure-7 communication dated 13th June, 2011. However, the same came to be rejected vide the Annexure-8 letter dated 12th July, 2011. For a ready reference, Annexure-8 is quoted below:- "Government of Mizoram Department of Personnel & Administrative Reforms (General Service Wing) Sub: Relaxation of Clause 6 of Office Memorandum issued by DP & AR. Their representation was forwarded by Annexure-7 communication dated 13th June, 2011. However, the same came to be rejected vide the Annexure-8 letter dated 12th July, 2011. For a ready reference, Annexure-8 is quoted below:- "Government of Mizoram Department of Personnel & Administrative Reforms (General Service Wing) Sub: Relaxation of Clause 6 of Office Memorandum issued by DP & AR. With reference to Under Secretary, P & E Department's letter No.32013/8/2010-P&E dated 13.6.2011 on the above subject, DP & AR regrets its inability to approve the proposal for relaxation of Clause 6 of O.M. No.A.32012/1/2003-P&AR (GSW) dated 15.7.2010 issued by this Department." (K. Laldingliana) Under Secretary to the Government of Mizoram Deptt. of Personnel & Adve. Reforms" 7. With the aforesaid development when the Selection Committee meeting was held on 4th August, 2011, the Selection Committee did not consider the case of the writ petitioners, i.e. respondent Nos.5 and 6 in this appeal, although they were senior to the present two appellants. The Selection Committee recommended the case of the appellants for promotion to the post of Assistant Engineer, who had cleared the departmental examination before the crucial date. 8. Being aggrieved, the petitioners preferred the writ petition being WP(C) No.72/2011. The learned Single Judge having allowed the writ petition with the aforesaid direction to convene the review DPC for consideration of the case of all the incumbents, i.e. the writ petitioners and the private respondents, the said respondents and so also the State of Mizoram have filed the instant appeals. 9. We have heard Mr. N. Sailo, learned senior counsel assisted by Mrs. Dinari T. Azyu, learned counsel representing the appellants. We have also heard Mr. A. Lallawmzuala, learned Additional Advocate General, Mizoram. 10. Mr. Sailo, learned senior counsel for the appellants, who were private respondents in the writ petition, has submitted that the learned Single Judge has committed manifest error of law as well as of fact in allowing the writ petition. He submits that the Office Memorandum laying down the crucial date of eligibility having not been challenged in the writ petition, the learned Single Judge could not have interfered with the said Office Memorandum so as to order for review DPC. He further submits that the recruitment Rules being silent regarding the procedure of selection to be followed, there is nothing wrong in laying down the procedure vide the Office Memorandum dated 15th July, 2010. 11. Mr. He further submits that the recruitment Rules being silent regarding the procedure of selection to be followed, there is nothing wrong in laying down the procedure vide the Office Memorandum dated 15th July, 2010. 11. Mr. Lallawmzuala, learned Additional Advocate General, Mizoram has also submitted that the impugned judgment is not sustainable in law. He also submits that the particular criteria had to be laid down vide the aforesaid Office Memorandum in absence of any procedure laid down in the service Rules itself. 12. We have given our anxious consideration of the submissions made by the learned counsel appearing for the parties and have also perused the entire materials on record. 13. If we go by the service Rules holding the field, referred to above, 35% of the total posts in Engineering Grade-V in the Mizoram Engineering Service shall be reserved for filling up from the penal of Junior Engineer, who may be considered fit for promotion by the Government after passing examinations in Engineering and Accounts for Junior Engineers, unless exempted by special or general order, as indicated in Rule 11(2)(a) and (b), quoted above. It is under the said provision coupled with the inbuilt relaxation clause (Rule 31), the writ petitioners prayed for relaxation towards consideration of their case for promotion. For a ready reference, Rule 31 is reproduced below:- "Power to Relax-31 Where the Governor is of the opinion that it is necessary or expedient so to do, he may, by order and for reasons to be recorded in writing in consultation with the Commission, relax any of the provisions of these rules with respect to any class or category of persons." 14. There is no manner of doubt that the departmental examination was not conducted during the years 2008; 2009 and 2010. In the writ petition, the petitioners categorically contended that they did not get the opportunity to appear in the examinations earlier also because of their remote locality posting. They also contended that had the departmental examination been conducted in 2008; 2009 and 2010, they could have appeared and cleared the same making them eligible for consideration in the selection held in July, 2011. 15. In the counter affidavit filed by the respondents denying the aforesaid plea of the petitioners, it was contended that the departmental examination was held even in the years 2008; 2009 and 2010. 15. In the counter affidavit filed by the respondents denying the aforesaid plea of the petitioners, it was contended that the departmental examination was held even in the years 2008; 2009 and 2010. However, such statement made in paragraph 4 of the counter affidavit was found to be not based on record as will be evident from the further clarification made by the official respondents by filing an additional affidavit. The writ petitioners also made the position clear in their affidavit-in-reply with the statement that apart from the fact that they did not get the opportunity to sit in the earlier examinations, they also could not sit in the examinations in 2008; 2009 and 2010 as no examination was held during those years. It is in the aforesaid circumstances, the learned Single Judge has held that the writ petitioners were illegally deprived of their chances of appearing in the departmental examination for 3(three) years, i.e. 2008; 2009 and 2010. Coupled with this, the learned Single Judge has also held that the service Rules itself having not provided for any cut off date for clearing the departmental examination, the official respondents could not have introduced a cut off date by an executive order. 16. As per Rule 9 of the Services Rules, recruitment to various grades of the service after the commencement of the Rules shall be regulated as per the table shown in Schedule 'B'. Rule 11 also provides for the modes of recruitment. Recruitment referred to in Rule 9 shall, after the commencement of the Rules, be made in accordance with the table at Schedule 'B'. Schedule 'B' dealing with the Engineering Grade-V service cadre provides for promotion to the post of Assistant Engineer by selection with the requisite length of service. However, as per Rule 11(2), an incumbent is also entitled to get consideration for promotion after passing the departmental examinations in Engineering and Accounts, unless exempted by special or general order. Thus, the Government is empowered to exempt by special or general order from clearing the said examination. Coupled with this, Rule 31 also specifically provides for relaxation of any of the provisions of the Rules in respect of any clause or category of persons. As noted above, the prayer for relaxation of the Rules made by the petitioners was rejected by very cryptic order without assigning any reason. Coupled with this, Rule 31 also specifically provides for relaxation of any of the provisions of the Rules in respect of any clause or category of persons. As noted above, the prayer for relaxation of the Rules made by the petitioners was rejected by very cryptic order without assigning any reason. On the other hand, the Government, as per the Recruitment Rules is empowered to provide exemption from appearing in the examination by a special or general order. As per the requirement of Rule 31 also, the Government is empowered to extend the relaxation for the reasons to be recorded in writing in consultation with the Commission. 17. The Apex Court while dealing with the Rules of relaxation in Amrik Singh v. Union of India & ORS. reported in (1980) 3 SCC 393 held that there is nothing unreasonable and/or capricious in such rules of relaxation. In M. Venkateswarlu v. Government of A.P. & Ors. reported in (1996) 5 SCC 167 , the Apex Court dealing with the concept of relaxation of Rules held that the Government in an individual case also can relax in appropriate case, the conditions of service. In the said case, a reserved category candidate was falling short of the required length of service. Upholding the relaxation in respect of the same, the Apex Court held that such power of relaxation was validly exercised in the interest of justice and equity. In the instant case, there is no dispute that no departmental examination was held in 2008; 2009 and 2010 and thus, the writ petitioners could legitimately contend that they would have cleared the examination had the same been held. Coupled with this, no fault can be attributed to them in respect of delay in publication of the results of the departmental examination. As noted above, they appeared on the said examination on 10th and 11th March, 2011 and the results were declared in May, 2011. 18. The requirement provided in the Rules is to clear the departmental examination. The Rules itself does not provide for any cut off date. However, by the aforesaid Office Memorandum, the cut off date was introduced firstly as April of the vacancy year and thereafter, as January of the vacancy year. 18. The requirement provided in the Rules is to clear the departmental examination. The Rules itself does not provide for any cut off date. However, by the aforesaid Office Memorandum, the cut off date was introduced firstly as April of the vacancy year and thereafter, as January of the vacancy year. In between from 2001 to 2005, no such cut off date was earmarked inasmuch as from 2001 to 2005 there was no such Office Memorandum issued by the Government of Mizoram. 19. It is in such circumstances, the learned Single Judge while pointing out the very objectivity attached to the requirement to clear the departmental examination, made the following observation in paragraph 32 of the impugned judgment:- "32. Considering the above, the approach of the respondents appears to be hyper-technical. The objection is more of form than of substance. A careful reading of the Rules would indicate that the petitioners were eligible and there were wrongly denied consideration." 20. In view of the above, while not interfering with the impugned judgment dated 5th September, 2012 passed by the learned Single Judge in WP(C) No.72/2011, the writ appeals are disposed of directing the Government to dispassionately consider the case of the writ petitioners/private respondents by invoking the aforesaid provision of the Rules towards relaxation of the Rules of relaxation and thereafter, to convene the review DPC as of 4th August, 2011, as has been ordered by the learned Single Judge, so as to consider the case of all the incumbents for promotion from the due dates. 21. Let the required exercise in terms of this judgment & order shall be carried out and completed as expeditiously as possible, preferably within 3(three) months from today. 22. With the above direction, both the appeals stand disposed of.