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2015 DIGILAW 1356 (GAU)

Lalthansangi v. State of Mizoram

2015-10-16

B.K.SHARMA, M.R.PATHAK

body2015
JUDGMENT : B.K. Sharma, J. This appeal is directed against the judgment & order dated 23rd April, 2008 of the learned Single Judge passed in WP (C) No. 21/2006. By the said judgment, the writ petition filed by the present appellant has been dismissed. In the writ petition, the petitioner made the following prayer :- "In the premises aforesaid, it is, therefore, respectfully prayed that Your Lordships may be pleased to admit this petition, call for the records and issue a Rule calling upon the Respondents to show cause as to why: (a) A writ in the nature of certiorari shall not be issued to set aside/quash the impugned inter se seniority fixed between the petitioner vis-a-vis the Respondent Nos. 4, 5 and 6 vide office order No.312 of 2005 dated 12.7.2005 and Office order No. 320 of 2005 vide Memo No. G. 23014/29/04'DFCS (AE)/179 dated 27.07.2005 (Annexure-29 & 32) and/or (b) A writ, order or direction in the nature of Certiorari setting aside and quashing the respondent No.3s letter dated 27.7.2005 (Annexure-31) and issuing a writ or Mandamus directing the State respondent to count the officiating service of the petitioner w.e.f. 20.8.1984 to 23.8.1986 for the purpose of seniority. (c) A writ in the nature of Mandamus directing the Respondents to forthwith correct the inter se seniority of the Petitioner vis-a-vis the Office Order No.320 of 2005 vide Memo No. G. 23014/29/04/DFCS (AE)/179 dated 27.07.2005 (Annexure-32) and...." (Emphasis added) 2. We have heard Mr. Vanlalngaka, learned counsel for the appellant and Mr. A. Lallawmzuala, learned Additional Advocate General, Mizoram representing the respondent Nos. 1 to 3. None has appeared for the private respondents in spite of service of notice. 3. The petitioner was selected for direct recruitment for the post of Accounts Assistant, as will be evident from the Annexure-2 minutes of the meeting of the DPC held on 5th July, 1984. The Department had placed before the DPC the case of direct recruitment for the post of Accounts Assistant and altogether 193 candidates had been sponsored by the Employment Exchanges, out of which 125 candidates appeared for written examination held on 26th May, 1984, in which 33 could qualify for oral interview. The DPC after assessing the performance of the candidates in the written examination and personal interview, recommended 15 candidates for appointment as Accounts Assistant in order of merit. The DPC after assessing the performance of the candidates in the written examination and personal interview, recommended 15 candidates for appointment as Accounts Assistant in order of merit. The writ petitioner/appellant occupied merit position at serial No. 1. 4. Pursuant to the above selection, the petitioner/appellant was appointed against a leave vacancy vide order dated 16th August, 1984. Although the leave granted to the incumbent was for 60 (sixty-days), but the appellant continued in her services and also earned annual increment as will be evident from Annexure-5 order dated 23rd August, 1985. By Annexure-6 order dated 23rd October, 1986, she was appointed against a regular vacancy of Accounts Assistant. As against the aforesaid position relating to the petitioner, the respondent Nos. 4, 5 and 6 were selected by subsequent DPCs on 21st August, 1986; 15th July, 1988 and 15th July, 1988, respectively. This aspect of the matter is evident from the Annexure-19 letter dated 10th May, 2002 of the Director of Food & Civil Supplies, Mizoram, addressed to the Under Secretary to the Government of Mizoram in the Food & Civil Supplies Department. As per the service particulars of Accounts Assistants furnished in order of DPCs merit list, while the writ petitioner/appellant was shown to have been selected by the DPC held on 5th July, 1984 with date of appointment as 23rd October. 1986, the respondent Nos. 4, 5 and 6 were shown to have been selected by the DPC on 21st August, 1986 and 15th July, 1988, with the respective dates of appointment on 8th January, 1987, 7th February, 1989 and 21st February 1989. All the appointment dates pertain to regular appointments. 5. Pursuant to the above position, when the seniority lists were drawn from time to time, the petitioner/appellant was shown senior to the private respondents. However, the said position was altered vide Annexure-29 order dated 12th July, 2005, by which the final inter-se-seniority list of Assistant Superintendent of Accounts was published. In the said list, while the petitioner was shown at serial No. 15, the private respondents were shown at serial Nos.9, 8 and 10, respectively. Being aggrieved by assignment of such seniority position, the petitioner made the Annexure-30 representation dated 14th July, 2005, which was disposed of by Annexure-31 order dated 27th July, 2005. In the said list, while the petitioner was shown at serial No. 15, the private respondents were shown at serial Nos.9, 8 and 10, respectively. Being aggrieved by assignment of such seniority position, the petitioner made the Annexure-30 representation dated 14th July, 2005, which was disposed of by Annexure-31 order dated 27th July, 2005. For a ready reference, the said order is quoted below:- Directorate of Food, Civil Supplies & Consumer Affairs Mizoram::: Aizawl No. A. 23021/1/2001/ACS/DTE(SPY)/160 Dated Aizawl, the 27th July/05 To, 1. Pi Lalthansangi, A.S.A Directorate of Food & Civil Supplies & Consumer Affairs, Mizoram, Aizawl. 2. Pi Vanlalmalsawmi, A.S.A., DCSO EOffice, Aizawl. Sub:- Regularisation of officiating period. This is to inform you that your representation for regularisation of your officiating period prior to your regular appointment as Accounts Assistant has been carefully examined and in view of the fact that seniority is determined on basis of the order of merit as per D.P.C. recommendation your representation for counting your officiating period for the purpose of seniority cannot be acceded to. Yours faithfully, Sd/- (K. Riachho) Director, Food, Civil Supplies & Consumer Affairs Mizoram, Aizawl." (Emphasis added) 6. As will be evident from the above referred Annexure-19 letter dated 10th May, 2002, the respondent Nos.4. 5 and 6 obtained graduation in 1989. It is submitted that the petitioner has also obtained graduation in 1994. Since the impugned seniority list was published in reference to the judgment dated 7th March, 2005 passed in WP(C) No. 6/2004 and order dated 12th May, 2005 passed in WP(C) No. 83/2003, a little reference to the said 2(two) judgments will be relevant. In the first writ petition, the petitioner prayed for seniority position above the private respondents involved therein, which included the present appellant but excluded the private respondents involved in this proceeding. The writ petition was allowed by quashing the seniority list in question in which she was shown junior to the present appellant. Following the said judgment, the subsequent order dated 12th May, 2005 was passed in WP(C) No. 83/2005 disposing of the writ petition in terms of the earlier writ petition. In the said writ petition also, the 5(five) petitioners involved, claimed seniority over the present appellant. Both the writ petitions did not involve the question as to whether the respondent Nos. 4, 5 and 6 would rank senior to the petitioner or not. 7. In the said writ petition also, the 5(five) petitioners involved, claimed seniority over the present appellant. Both the writ petitions did not involve the question as to whether the respondent Nos. 4, 5 and 6 would rank senior to the petitioner or not. 7. The learned Single Judge by the impugned judgment & order dated 23rd April, 2008 up holding the impugned seniority list in which the private respondents were shown senior to the petitioner, also held that the petitioner is not entitled to count her service from 20th August, 1984 to 23rd August, 1986. For a ready reference, paragraph 14 of the said judgment & order is quoted below:- "14. In the writ petition the petitioner has also prayed for a writ of mandamus so as to direct the State respondents to count the officiating service of petitioner with effect from 20.8.1984 to 23.8.1986 for the purpose of seniority. I find that the State respondents have rejected this plea on the ground that seniority has been fixed on the basis of the order of merit as per DPC recommendation. Besides this the writ petitioner was appointed against a regular vacancy with effect from 23.10.1986 (Annexure-6) vide order of even date. There is no mention of giving retrospective effect in the order so as to count her officiating period, the petitioner was working purely on officiating basis against leave vacancy. Hence, I am of the view that since there was no regular vacancy at the time of petitioners officiating appointment no direction for retrospective regularisation can be given by this Court and that too at this belated stage." (Emphasis added) 8. As per the above finding, the appellants plea for counting of her service for the period from 20th August, 1984 to 23rd August, 1986 is not acceptable as the seniority had been fixed on the basis of the order of merit as per the DPC recommendation. The petitioner is aggrieved by this finding recorded in the impugned order. 9. Above finding recorded in the impugned judgment is in tune with the Annexure-31 order dated 27th July, 2005, quoted above. By the said order, the representation made by the petitioner was rejected on the ground that seniority was determined on the basis of the order of merit as per the DPC recommendation. 9. Above finding recorded in the impugned judgment is in tune with the Annexure-31 order dated 27th July, 2005, quoted above. By the said order, the representation made by the petitioner was rejected on the ground that seniority was determined on the basis of the order of merit as per the DPC recommendation. Such finding, both in the impugned order dated 27th July, 2005 and in the impugned judgment & order dated 23rd April, 2008 is contrary to the actual fact situation discussed above. As noted above, the petitioner was recommended by the DPC for direct recruitment on 5th July, 1984 and she occupied merit position at serial No. 1. Although, she was appointed against a leave vacancy for 60 (sixty) days, but she continued in her services even to the extent of earning annual increments. Thereafter, she was regularly appointed vide order dated 23rd October, 1986. As against the said position, the respondent Nos. 4, 5 and 6 were appointed to the service on 8th January, 1987; 7th February, 1989 and 21st February, 1989 based on the date of the DPC, which are 21st August, 1986; 15th July, 1988 and respectively. 10. We have given our anxious consideration to the submissions advanced by the learned counsel appearing for the parties and have also considered the entire materials on record. 11. Law is well settled that a person selected in an earlier selection will always rank senior to the persons selected in a later selection. This aspect of the matter was not considered by the State respondents while disposing of the representation made by the petitioner vide Annexure-31 order dated 27th July, 2005. It is for this reason the appellant had challenged the said order in the writ petition. In the impugned judgment also, the said aspect of the matter was not considered inasmuch as while rejecting the prayer of the petitioner to count the officiating services for the period from 20th August, 1984 to 23rd August, 1986 what was noticed is the said impugned order dated 27th July, 2005. 12. All the above aspects of the matter would require fresh consideration of the departmental authority towards consideration of the case of the petitioner in respect of the claim for assigning seniority above the respondent Nos. 4, 5 and 6. 12. All the above aspects of the matter would require fresh consideration of the departmental authority towards consideration of the case of the petitioner in respect of the claim for assigning seniority above the respondent Nos. 4, 5 and 6. Accordingly, the impugned judgment & order dated 23rd April, 2008 passed in WP(C) No. 21/2006 along with the impugned Annexure-31 order dated 27th July, 2005 stands interfered with and the matter shall go back to the State Government for a fresh decision, consistently with the observations made above. 13. Let the required exercise towards arriving at a fresh decision be carried out as expeditiously as possible, preferably within 3 (three) months from today. 14. With the above direction, writ appeal stands disposed of.