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2017 DIGILAW 1255 (GAU)

K. LALTHANPARA v. STATE OF MIZORAM

2017-09-07

MICHAEL ZOTHANKHUMA

body2017
JUDGMENT : Zothankhuma, J. Heard Mr. C. Lalramzauva, learned senior counsel for the petitioners assisted by Mr. H. Zodinsanga. Also heard Mr. Rosangzuala Ralte, for the State respondents. 2. The petitioners, who are presently working as Assistant Registrars in the Cooperative Societies Department, Government of Mizoram have made a prayer for directing the respondents to invoke the relaxation Clause, i.e., Rule 18 of the Mizoram State Cooperative Service Rules, 2007, so as to enable the petitioners to make up their deficiency in qualifying service for promotion to the post of Deputy Registrar of Cooperative Societies. The other prayer made by the petitioners is for a direction to the respondents to count their officiating promotion as Assistant Registrars for the purpose of seniority from their dates of appointments, i.e., 13.05.2005 and 13.10.2008. 3. The petitioners case in brief is that they were appointed as officiating Junior Inspectors of Cooperative Societies vide Office Order No.27/1983 dated 04.02.1983. The petitioner No. 1 was thereafter regularized in the post of Junior Inspector w.e.f., 05.02.1983 vide order dated 07.11.1984. The petitioner No. 2 was regularized in the post of Junior Inspector w.e.f., 08.02.1983 vide Order dated 20.10.1984. The petitioners were thereafter confirmed in the post of Junior Inspectors w.e.f., 01.08.1998 vide Order dated 29.08.1989. The petitioners were thereafter promoted to the posts of Senior Inspector of Cooperative Societies vide Order dated 28.07.1997. 4. The petitioner No. 1 was thereafter promoted to the post of Assistant Registrar of Cooperative Societies vide notification dated 13.05.2005 while the petitioner No. 2 was promoted to the post of Assistant Registrar vide Notification dated 13.10.2008. The promotion orders stated that the promotion of the petitioners was on officiating basis and would not bestow upon the petitioners any claim for regular appointment to the post. 5. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Mizoram made the Mizoram State Cooperative Service Rules, 2007, herein after referred to as the 2007 Rules. The 2007 Rules was made to regulate the recruitment and conditions of service of persons appointed to the Mizoram State Cooperative Service. Thereafter, the Mizoram State Cooperative Service (Amendment) Rules, 2014, herein after referred to as the 2014 Rules, was published in the Mizoram Gazette on 05.02.2015 wherein it was shown that the post of Assistant Registrar of Cooperative Societies was a Grade-IV post. Thereafter, the Mizoram State Cooperative Service (Amendment) Rules, 2014, herein after referred to as the 2014 Rules, was published in the Mizoram Gazette on 05.02.2015 wherein it was shown that the post of Assistant Registrar of Cooperative Societies was a Grade-IV post. As per the 2014 Rules, vacancies to a Grade-III post i.e., Deputy Registrar of Cooperative Societies, was to be filled by promotion from the members of the service in Grade-IV, who had rendered not less than 5 (five) years regular service in the grade. The method of promotion was to be by way of selection. 6. In the inter-se-seniority list of Assistant Registrar of Cooperative Societies, published vide Notification dated 22.02.2011, the petitioner Serial No. 1 & 2 were listed at serial No. 16 and 18 respectively. Subsequently, with passage of time, the petitioners became the senior most Assistant Registrars of the Cooperative Societies, as early as on 01.12.2015. 7. The petitioners counsel submits that the State respondents had allowed a one time relaxation of the service rules, in favour of 4 seniors of the petitioners, for promotion to the post of Deputy Registrar, by doing away with the required number of regular years of service required to be done in the grade of Assistant Registrar (feeder grade). 8. The petitioners counsel submits that 2 (two) of the 4 (four) seniors of the petitioners who had been promoted on the basis of relaxation of the service rules have subsequently been promoted to Grade-II posts, thereby, leaving 2 (two) vacancies in the Grade-III post. In view of their being vacancies in the promotional posts of the petitioners, the Registrar of Cooperative Societies had written letters to the State Government to relax the service rules, for condonation of the qualifying regular years of service required for promotion to the post of Deputy Registrar of Cooperative Societies, in favour of the 2 (two) senior most Assistant Registrar, i.e., the petitioners. The Government however, rejected the proposal for relaxation of the service rules in favour of the petitioners. 9. The service of the petitioners as Assistant Registrars was regularized w.e.f. 05.08.2014. The petitioner's counsel submits that as the petitioner Nos. The Government however, rejected the proposal for relaxation of the service rules in favour of the petitioners. 9. The service of the petitioners as Assistant Registrars was regularized w.e.f. 05.08.2014. The petitioner's counsel submits that as the petitioner Nos. 1 and 2 had been promoted to the post of Assistant Registrar on officiating basis on 13.05.2005 and 13.10.2008 respectively and their services having been subsequently regularized, the period of officiating service as Assistant Registrars has to be counted for the purpose of seniority. In this respect he has relied upon the judgments of the Apex Court in Direct Recruit Class-III Engineering Officers Association v. State of Maharashtra & Ors., reported in (1990) 2 SCC 715 (Para 13 & 14), Union of India & Anr. v. Lalita S. Rao & Ors., reported in (2001) 5 SCC 384 (Para-73, Page-399 'E') and in the case of Amarendra Kumar Mahapatra v. State of Orissa, reported in (2014) 4 SCC 583 (Para-68). 10. The counsel for the respondents submits that as the petitioners service as Assistant Registrars of the Co-operative Societies was regularized only w.e.f. 05.08.2014, the petitioners service prior to their regularization cannot be counted for the purpose of seniority. This has been clearly clarified in the promotion orders issued to the petitioners and this has been made clear in the regularization orders dated 05.08.2014 issued by the State respondents. The respondent's counsel also submits that in view of the Office Memorandum dated 08.09.2009 issued by the Commissioner & Secretary to the Government of Mizoram, Department of Personnel & Administrative Reforms, regularisation of officiating service would only be allowed to the extent of counting their service towards leave, pay and other pensionary benefits, but not for seniority. (Page-16 of the affidavit-in-opposition). 11. The counsel for the respondents also submits that the petitioner has no legally enforceable right to pray for the relaxation of the service rules for condoning the deficiency of the required length of service for promotion to the Grade-III posts. 12. I have heard the learned counsels for the parties. 13. The respondents counsel's submission is that the petitioners officiating promotion prior to their regularization cannot be counted due to the O.M dated 08.09.2009 cannot be accepted as the said O.M dated 08.09.2009 is with regard to officiating promotions made under Regulation (4)(c) of the MPSC (Limitation of Function), Regulation 1994. I have heard the learned counsels for the parties. 13. The respondents counsel's submission is that the petitioners officiating promotion prior to their regularization cannot be counted due to the O.M dated 08.09.2009 cannot be accepted as the said O.M dated 08.09.2009 is with regard to officiating promotions made under Regulation (4)(c) of the MPSC (Limitation of Function), Regulation 1994. The promotion orders of the petitioners does not state anywhere that the promotion of the petitioners has been made on the basis of Regulation (4)(c) of the MPSC (Limitation of Function), Regulation 1994. The promotion orders however, state that the promotions have been made on the recommendation of the Mizoram Public Service Commission. 14. In Amarendra Kumar Mahapatra (Supra), the Apex Court has again reiterated the propositions made by the Apex Court in Direct Recruit Class-III Engineering Officers Association (Supra). The culled out the propositions A and B stated in Para-47 in Direct Recruits case is as follows:- "(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only adhoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted." 15. In the case of Union of India & Anr. v. Lalita S. Rao & Ors. (Supra), the Apex Court has held at Para-73 as follows:- "Obviously the Court had in mind Principle 'B' evolved by the Constitution Bench in Direct Recruit Engineering Officers' Assn. case. If the initial appointment had not been made in accordance with the prescribed procedure laid down by the Recruitment Rules, and yet the appointee Medical Officers were allowed to continue in the post uninterruptedly and then they appeared in the selection test conducted by the Union Public Service Commission, and on being selected their services stood regularised then there would be no justification in not applying Principle 'B' of Direct Recruit Class II Engineering Officers' Assn. case and denying the period of officiating services for being counted for the purpose of seniority". 16. At the time of officiating promotion of the petitioner No. 1 on 13.05.2005, the Mizoram Cooperative Department (Class II post) Recruitment Rules, 1975 (herein after referred to as the 1975 Rules) was in force. At the time of officiating promotion of the petitioner No. 2 as Assistant Registrar of Cooperative Societies, the 2007 Rules was in force. The promotion orders of the petitioner Nos. 1 and 2 as Assistant Registrars show that their promotions have been made on the basis of recommendations made by the Mizoram Public Service Commission. There is nothing brought on record to show that the petitioners promotion on officiating basis as Assistant Registrars have not been made as per the relevant rules in force at the relevant period of time. 17. In view of the propositions culled out by the Apex Court in Direct Recruits case, the petitioners are deemed to have been appointed as Assistant Registrars on the basis of the 1975 Rules and 2007 Rules. Accordingly, on regularisation of the continuous officiating service of the petitioners as Assistant Registrars, the period of officiating service, in the case of the present petitioners herein, have to be counted for the purpose of seniority. Accordingly, the petitioners officiating service as Assistant Registrars will be deemed to be regular service in the grade-IV, i.e. the posts of Assistant Registrars. 18. In view of the above, the petitioners would be deemed to have acquired the qualifying regular service required for consideration for promotion to the next higher grade as per the 2007 Rules. Though a Govt. employee does not have the right to be promoted, but he has a right to be considered for promotion. As it is their right to be considered for promotion, subject to their being vacancies, the State respondents are directed to consider the case of the petitioners for promotion to the posts of Deputy Registrars of Cooperative Societies as per the 2007 Rules and subject to the finances of the State. 19. The cases of the petitioners for promotions should be considered within a period of four months from the date of receipt of a certified copy of this order. 20. Writ Petition is accordingly disposed of.