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2015 DIGILAW 774 (GAU)

Lalrokhawma v. State of Mizoram

2015-06-18

L.S.JAMIR

body2015
JUDGMENT AND ORDER L.S. Jamir, J. Heard Mr. N. Sailo, learned senior counsel assisted by Mrs. Dinari T. Azyu, learned counsel for the petitioners. Also heard Mr. A.R. Rokhum, learned Additional Advocate General, Mizoram appearing for the State respondents as well as Mr. M. Zothankhumna, learned senior counsel assisted by Ms. A. Laltanpuii, learned counsel appearing for the respondent No. 4 i.e. Mizoram Public Service Commission. 2. The petitioners are aggrieved against the action of the respondents for not conducting Limited Departmental Examination (in short 'LDE') to fill up the post of Functional Manager in the Industries Department, Government of Mizoram (Group 'A' posts) as per the Mizoram Industries Department (Group 'A' posts) Recruitment Rules, 1990 (in short 'Recruitment Rules of 1990'). 3. Mr. N. Sailo, learned senior counsel appearing for the petitioners submits that the petitioner No.1 was appointed as Economic Investigator (in short 'EI') on the recommendation of Departmental Promotion Committee (in short ' DPC') by Office Order No. 153 of 1988. Thereafter, the petitioner was confirmed to the said post by Notification dated 11-06-1991. The petitioner No. 1 was again promoted to the post of Industrial Promotion Officer (in short 'IPO') on the recommendation of DPC by Office Order No. 339 of 2005 dated 11-10-2005. The petitioner No. 2 was also temporarily appointed to the post of Extension Officer (in short 'EO') on the recommendation of the DPC by Office Order No. 11 of 1991 dated 27-08-1991 and was subsequently confirmed to the said post by Notification dated 5th July, 2000. The petitioner No. 2 was appointed temporarily to the post of Extension Officer under the Scheme Administration and Supervision of SSI (N.P), Directorate of Industries, Aizawl on the recommendation of DPC by Office Order No. 70 of 1992 dated 24-03-1992. 4. Learned senior counsel for the petitioners submits that the respondents under Article 309 of the Constitution of India has framed the Recruitment Rules of 1990. By the said Rules, the next promotional post from the post of I.P.O. or EO/EI/Depot Manager including Assistant Director of Industries is the Functional Manager (in short "FM'). The post of F.M is a selection post and the same is to be filled up by way of 25% by promotion 50 % by LDE and the remaining 25% by direct recruitment. The post of F.M is a selection post and the same is to be filled up by way of 25% by promotion 50 % by LDE and the remaining 25% by direct recruitment. By the said Recruitment Rules of 1990, those eligible to sit for the LDE are Assistant Directors of Industries with three years regular service in the grade, IPO with five years regular service in the grade including the services rendered as EO/EI/Depot Manager and EO/EI/Depot Manager with ten years regular service in the grade. 5. By a Notification dated 20-09-1991 which was published in the Gazetted, the said Recruitment Rules of 1990 was amended wherein the Recruitment Rules of 1990 was made effective with retrospective effect from 14-03-1984. He also submits that the respondents had created four posts of Manager which was conveyed by the Under Secretary to the Government of Mizoram, Industries Department to the Director of Industries, Mizoram by communication dated 13-10-1978. Out of the said four posts, two posts of Manager was for the District Industries Centre, Aizawl and the other two posts were for the District Industries Centre, Lunglei. Thereafter, the respondents had further created four additional posts of F.M two each i.e. for the District Industries Centre (CSS) Aizawl and Lunglei by an order dated 14-03-1984. Subsequently, the post of Manager was re-designated as F.M by an order dated 11-08-1986. Further, due to the opening of new District Industries Centre for the Chhimtuipui District, the respondents again created another four posts of F.M. by Notification dated 26-08-1986. The State respondents thereafter by Order dated 12-12-2001 upgraded ten posts of EO/EI to the post of IPO and accordingly by the same order, two posts of FM at District Industries Centre, Saiha and District Industries Centre, Lunglei were abolished. 6. It is submitted that despite the Recruitment Rules of 1990 which provides for the method of recruitment to the post of FM, the respondents had not been strictly following the stipulation contained in the Recruitment Rules of 1990 and the post of FM has been filled up on promotion on regular promotion as well as adhoc appointment followed by regularisation from time to time. The respondents have failed to conduct any LDE for filling up the post of FM and therefore, the EO/EI Unit of Mizoram Industries Services Association submitted a representation dated 28-01-2004 to the respondent No.3 expressing their grievances and requested to look into the matter for conducting LDE in terms of the Recruitment Rules of 1990. However, the respondents had failed to address the said representation and no action was taken in that regard. Therefore, a reminder was again submitted by the said Association on 07-07-2005 which was followed by another representation dated 22-05-2008. 6.1 After a lapse of a considerable period of time, the respondents finally took steps to conduct LDE and the respondent No. 4 by Notification dated 19-09-2008 notified that five vacant posts of FM were to be filled up through LDE and those interested were asked to submit their willingness to sit for the exams along with the requisite examination fee before 31-10-2008. The petitioners therefore, responded to the said notification and submitted their willingness to the respondent No. 4 by submitting the requisite examination fee. The respondents had thereafter furnished a list of vacant posts of FM year-wise with eligible candidates at the relevant point of time to the respondent No. 4 by office letter dated 30-10-2008, 18-12-2008, 26- 06-2009, 17-05-2010 and 04-06-2010. In terms of the detailed list of vacancy notified by the State respondents to the MPSC more particularly, by communication dated 17-05-2010, the respondent No. 4 issued a Notification dated 04-06- 2010. By the said Notification, the petitioner became ineligible to sit for the examination as the date of vacancy shown in the Notification dated 04-06-2010 was shown as four posts for the vacancy year 1993-1994 and one post for the vacancy year 1996 to 1997. Being aggrieved, the petitioner No. 1 submitted a representation dated 28- 06-2010 to the respondent No. 4 complaining about the date of vacancy forwarded by the Department and also requested that he be allowed to sit for the LDE. In the said representation dated 28-06-2010, the petitioner No.1 depicted the correct date of vacancy. In response to the said representation, the respondent No. 4 again by a communication dated 28-07-2010 sought clarification from the Industries Department. In reply, the Under Secretary to the Government of Mizoram by communication dated 10-08-2010 clarified that there were eight vacant posts and the year of vacancy was between 30-08-2004 to 06-01-2009. In response to the said representation, the respondent No. 4 again by a communication dated 28-07-2010 sought clarification from the Industries Department. In reply, the Under Secretary to the Government of Mizoram by communication dated 10-08-2010 clarified that there were eight vacant posts and the year of vacancy was between 30-08-2004 to 06-01-2009. 7. It is further submitted that despite the clarification dated 10-08-2010 made by the Department of Industries, Mizoram, the respondent No. 4 again convened a joint meeting on 09-09-2010 with the officials of the Industries Department for discussing on the issue. In the said meeting held on 09-09-2010, a decision was taken that the post of FM be filled as notified by the respondent No. 4 by Notification dated 02-06-2010 which was made pursuant to the Government letter dated 17-05-2010. Further, in the said meeting, it was decided that the Government letter dated 10-08-2010 issued in connection with the said LDE should be withdrawn by the Government. 8. Learned senior counsel for the petitioners submits that till date LDE has not been conducted since the framing of the Recruitment Rules of 1990 and the petitioners have completed more than 20 years of service in their respective posts i.e feeder post to the post of FM. Instead of considering the case of the petitioners, the respondents without maintaining any roster has filled up the post of FM by regularising the adhoc promotion of the officers and by other means. When the respondents had decided to conduct the LDE in terms of the Recruitment Rules of 1990, the respondents had again shown the wrong vacancy position in their various communications except the communication dated 10-08-2010 thereby illegally depriving the petitioners to participate in the said LDE. He submits that the vacancy position as depicted in the communication dated 10-08-2010 is correct and therefore the respondents should be directed to fill up the post of FM by way of LDE as per the vacancy position indicated in the communication dated 10-08-2010. He also submits that the vacancy position indicated in the communication dated 17- 05-2010 is misconceived and therefore the Notification dated 04-06-2010 issued by the respondent No. 4 pursuant to the said communication is incorrect and the same should be interfered with. He also submits that the vacancy position indicated in the communication dated 17- 05-2010 is misconceived and therefore the Notification dated 04-06-2010 issued by the respondent No. 4 pursuant to the said communication is incorrect and the same should be interfered with. He further submits that a direction should be issued to the respondents to conduct the LDE in terms of the communication dated 10-08-2010 and the impugned communication dated 17-05-2010, the Notification dated 04-06-2010 issued by the respondent No. 4 as well as the meeting minutes dated 09-09-2010 should be set aside and quashed. In support of his case, learned senior counsel has relied in the case of (i) B.L. Gupta and Another v. M.C.D, reported in (1998) 9 SCC 223 (ii) Council of Scientific and Industrial Research and Another, reported in (1998) 4 SCC 635 and (iii) in the case of State of Tripura v. K.K. Roy, reported in (2004) 9 SCC 65 . 9. Mr. A.K. Rokhum, learned Additional Advocate General, Mizoram appearing on behalf of the State respondents submits that while it is correct that the Recruitment Rules of 1990 provides for filling up the post of FM by way of 25% reservation for promotion, 50% by LDE and 25% by direct recruitment, the said Rules was found to be defective and extremely inappropriate inasmuch as, the post of FM carries a pay scale of Rs. 3,000-Rs. 4,000/- which is the pay scale given to Deputy Director, Under Secretary, Executive Engineer and Senior Grade of MCS. He also submits that in other Departments or services under the Government of Mizoram there is no scope for promotion to the level of FM by direct recruitment or by LDE inasmuch as, such posts are filled up by 100% promotion from the feeder post. He therefore submits that the appropriate method to fill up the post of FM should be 100% promotion from the feeder post and therefore the present Recruitment Rules of 1990 is found to be defective and inappropriate as the same is capable of creating unhealthy atmosphere amongst the employees. Considering the defects in the said Recruitment Rules of 1990, a proposal for amendment of the Recruitment Rules of 1990 to the post of FM by providing 100% promotion from the Assistant Director/Sub-Divisional Industries Officer has been submitted to the Government and the matter is under consideration. Considering the defects in the said Recruitment Rules of 1990, a proposal for amendment of the Recruitment Rules of 1990 to the post of FM by providing 100% promotion from the Assistant Director/Sub-Divisional Industries Officer has been submitted to the Government and the matter is under consideration. The Recruitment Rules of 1990 is found to be incomplete and discriminatory and therefore the final outcome with regard to the amendment sought to the said Rules should be awaited for filling up of the post of FM. 10. Mr. M. Zothankhuma, learned senior counsel assisted by Ms. Laltanpuii, learned counsel appearing for the respondent No. 4/MPSC submits that consequent upon the Notification dated 19-09-2008 issued by the respondent No.4 a number of serving IPO/AD/ etc had submitted representation expressing their grievances regarding the year of vacancy to the Secretary to the Government of Mizoram, Industries Department. In response to such representation, the Under Secretary to the Government of Mizoram, Industries Department had written a letter dated 27-10-2008 to the Director, Industries Department requesting him to identify year wise breakup of the five vacant posts of FM proposed to be filled up by LDE. In reply to the letter dated 27-10-2008, the Director of Industries Department had submitted a list of vacancies to the Commission intimating a copy to the Under Secretary, Industries Department by letter dated 30-10-2008 wherein it has been indicated that a total of nine vacant posts of FM exists from 10-06-1997 to 10-04-2008. However, as the Department has failed to indicate the number of vacancy to be filled up by LDE and direct recruitment, the respondent No. 4 again by letter dated 05-112-2008 requested the Secretary, Industries Department to identify the vacancy which were ear-marked for filling up by LDE. In reply, the Industries Department by letter dated 17-05-2010 furnished the required information indicating that four vacancies belongs to the vacancy year of 1993-1994 and the remaining one vacancy for the year 1996-1997. Consequent to the new information received, the respondent No. 4 issued a fresh Notification dated 04-06-2010 inviting willingness for filling up of five vacant posts of FM by LDE indicating the vacancy year and the categories of officers eligible to appear for the LDE. Consequent to the new information received, the respondent No. 4 issued a fresh Notification dated 04-06-2010 inviting willingness for filling up of five vacant posts of FM by LDE indicating the vacancy year and the categories of officers eligible to appear for the LDE. Against the Notification dated 04-06-2010, representations were again received from six candidates holding the post of EO stating that the vacant post of FM as indicated in the Notification dated 01-06-2010 by the respondent No.4 has been filled up on adhoc basis at that relevant point of time and therefore a correction was required in the Notification dated 04-06-2010. Therefore, the Department was again requested to clarify the position and in response, the Department by letter dated 10-08-2010 furnished information with regard to eight vacancies of FM indicating from 30-08-2004 to 06-01-2009. Out of the eight vacancies, five vacancies belong to 2004-2005 vacancy year, one vacancy for the 2006-2007 and two vacancies during 2008 to 2009. As the number of vacancy and the year wise breakup furnished on 17-05-2010 and 10-08-2010 were contradictory, a decision was taken to discuss the matter and accordingly a meeting was convened with the officers of Industries Department on 09-09-2010. In the meeting, the contradictory statements of the vacancy and the two separate correspondences were discussed and the representative of the Industries Department had confirmed that the vacancy indicated in the letter dated 17-05-2010 was correct and the vacancy indicated in the subsequent letter dated 10-08-2010 is incorrect. Therefore, it was decided that the respondent No. 4 would proceed with conducting of the LDE as per the Notification dated 04-06-2010 with the condition that the Department of Industries would withdraw its letter dated 10-08-2010. However, as the Department of Industries is yet to withdraw the letter dated 10-08-2010, the Commission is not in a position to proceed with conducting the LDE for recruitment to the post of FM. 11. I have considered the submission forwarded by the learned counsel for the parties. 12. This Court has considered the communication dated 17-05-2010 as well as the communication dated 10-08-2010 by which different year wise vacancy has been indicated by the Department of Industries. The representation dated 28-01-2004 as well as the representation dated 28-06-2010 submitted by the petitioner No.1 to the respondent No. 4 has been considered. 13. 12. This Court has considered the communication dated 17-05-2010 as well as the communication dated 10-08-2010 by which different year wise vacancy has been indicated by the Department of Industries. The representation dated 28-01-2004 as well as the representation dated 28-06-2010 submitted by the petitioner No.1 to the respondent No. 4 has been considered. 13. I have also considered the submission of the learned Additional Advocate General, Mizoram concerning anxiety of the State respondents with regard to the Recruitment Rules of 1990 for conducting LDE. It is within the prerogative of the State respondents to amend the Recruitment Rules of 1990. However, till such amendment is made, the respondents has no other option but to follow the Rules framed under the Recruitment Rules of 1990. By the said Rules, method of recruitment to the post of FM is 25% by promotion, 50% by LDE and 25% by direct recruitment. As the vacancy to be filled up by way of LDE to the post of FM has arisen when the present Recruitment Rules of 1990 is in force, it is incumbent upon the respondents to proceed in terms of the said Rules of 1990 for filling up the vacant post of FM by way of LDE. In the case of B.L. Gupta (supra), Hon'ble Supreme Court has held as under:- "9. When the statutory rules had been framed in 1978, the vacancies had to be filled only according to the said Rules. The Rules of 1995 have been held to be prospective by the High Court and in our opinion this was the correct conclusion. This being so, the question which arises is whether the vacancies which had arisen earlier than 1995 can be filled up as per the 1995 Rules. Our attention has been drawn by Mr. Mehta to a decision of this Court in the case of N.T. Devin Katti v. Karnataka Public Service Commission. In that case after referring to the earlier decisions in the cases of Y.Y. Rangaiah v. J. Sreenivasa Rao, P. Ganeshwar Rao v. State of A.P. and A.A. Calton v. Director of Education, it was held by this Court that the vacancies which had occurred prior to the amendment of the Rules would be governed by the old Rules and not by the amended Rules. Though the High Court has referred to these judgments, but for the reasons which are not easily decipherable its applicability was only restricted to 79 and not 171 vacancies, which admittedly existed. This being the correct legal position, the High Court ought to have directed the respondent to declare the results for 171 posts of Assistant Accountants and not 79 which it had done." The present case in hand is solely covered by the ratio laid down by the Hon'ble Supreme Court and therefore it becomes inconsequential whether the respondents amends that Recruitment Rules of 1990 or not inasmuch as, it will be incumbent upon the respondents to fill up the vacant post of FM by way of LDE as per the Recruitment Rules of 1990 as the vacancies arose when the said Rules is in force. 14. This Court has also considered the inconsistency in the communication dated 17-05-2010 and 10-08-2010 where different year wise break up regarding the vacancies has been indicated. The meeting minutes held on 09-09-2010 does not indicates as to why the communication dated 17-05-2010 showing a different year wise breakup then that contained in the communication dated 10-08-2010 has been accepted. It is also not indicated as to why a decision has been taken that the communication dated 10-08-2010 should be withdrawn by the Government. The respondent No. 4 has tried to explain the minutes of the meeting dated 09-09-2010 in the counter-affidavit. In the case of Mohinder Singh Gill and Another v. The Chief Election Commissioner, reported in (1978) 1 SCC 405 , the Hon'ble Supreme Court has held as under:- "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it come to Court on account of a challenge, get validated by additional grounds later brought out. Otherwise, an order bad in the beginning may, by the time it come to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji: Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." Further in the case of Dipak Babaria and Another v. State of Gujarat and Others, reported in (2014) 3 SCC 502 , the Hon'ble Supreme Court has held as under:- 64. That apart, it has to be examined whether the Government had given sufficient reasons for the order it passed, at the time of passing such order. The Government must defend its action on the basis of the order that it has passed, and it cannot improve its stand by filing subsequent affidavits as laid down by this Court long back in Commr. of Police v. Gordhandas Bhanji, in the following words: "9. ...public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." 15. In the present case in hand, the meeting minutes dated 09-09-2010 is still silent about the reasons why the communication dated 17-05-2010 has been accepted and the communication dated 10-08-2010 has been decided to be withdrawn by the Government. In the absence of any reasons in the minutes dated 09-09-2010, this Court is unable to accept the explanation given by the respondent No. 4 in the counter-affidavit. The meeting minutes may not be an Order/Notification however the same was the basis for not being able to conduct the LDE till date. In the absence of any reasons in the minutes dated 09-09-2010, this Court is unable to accept the explanation given by the respondent No. 4 in the counter-affidavit. The meeting minutes may not be an Order/Notification however the same was the basis for not being able to conduct the LDE till date. This Court is therefore of the considered opinion that the principles of the aforesaid ruling of the Hon'ble Supreme Court would apply in the present case. 16. This Court is also not in a position to give a decision as to correctness of the vacancy position and the year wise breakup as indicated in the communications dated 17-05-2010 or the communication dated 10-08-2010 inasmuch this Court does not have the expertise to determine the same. It is the concern of the State respondents more particularly, the respondent Nos. 2 and 3 to give a clear and correct picture with regard to the same. 17. In the facts and circumstances of the case, a direction is issued to the respondent Nos. 2 and 3 to reconsider the matter afresh with regard to the number of vacancy and the year wise breakup and thereafter furnish the exact and correct figure to the respondent No.4 for issuing appropriate notification for conducting LDE to fill up the post of FM as provided under the Recruitment Rules of 1990. While considering the matter, the respondents shall also take into account the representation dated 28-06-2010 submitted by the petitioners to the respondent No.4. The petitioners shall be at liberty to furnish a copy of the said representation to the respondent Nos. 2 and 3. Such exercise should be completed within a period of two months from the date of receipt of a copy of the order of this Court. 18. Consequently, the impugned Notification dated 04-06-2010 issued by the respondent No. 4 and the meeting minutes dated 09-09-2010 are accordingly set aside and quashed. Considering that the petitioners have put in more than twenty years of service in their respective post, it is expected that once the State respondents provides a clear and exact figure of the number of vacancy and the year wise break up, the respondent No.4 shall forthwith take steps for conducting LDE in terms of the Recruitment Rules of 1990 but not later than 2(two) months after receipt of such clarification/communication from the respondent Nos. 2 and 3. 19. 2 and 3. 19. With the above observations and directions, this writ petition is disposed of. 20. No costs.