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2017 DIGILAW 426 (GAU)

LALREMTHANGA v. STATE OF MIZORAM

2017-04-04

MICHAEL ZOTHANKHUMA

body2017
JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. C. Lalramzauva, learned senior counsel assisted by Mrs. K. Lalramnghaki, counsel for the petitioners. Also heard Mr. Rosangzuala Ralte, learned counsel for the respondent Nos. 1 to 3. 2. The two cases are being decided by this common Judgment and Order as the issues in question are analogous to each other. 3. The writ petitioners in WP(C) No. 47 of 2016 are Group 'A' Officers/employees of the erstwhile 'Mizoram Handloom & Handicrafts Development Corporation Limited' (hereinafter referred to as ZOHANDCO). ZOHANDCO was a Private Limited Company and registered under the Companies Act, 1956. As per the Memorandum of Association, the Secretary, Industry Department, Government of Mizoram, (whosoever he or she may be by person) shall be permanent Director. The other subscribers to the Memorandum of Association would be deemed to be the Directors of the Company who will hold office until such time as the Directors are nominated by the State Government. Except the Secretary, Industries Department, all other subsequent Directors were to be nominated from time to time by the State Government. 4. The writ petitioners in WP(C) No. 54 of 2016 are Group 'A' Officers/employees of the erstwhile 'Mizoram Agricultural Marketing Corporation Limited' (hereinafter referred to as MAMCO), a company registered under the Companies Act, 1956. As per the Memorandum of Association, the Secretary, Trade & Commerce Department and Director, Trade & Commerce Department shall be permanent Directors. Except the Secretary and Director, Trade & Commerce Department, all other subsequent Directors shall be nominated from time to time by the State Government. 5. The petitioners' counsel submits that the two companies, namely, ZOHANDCO and MAMCO started winding up proceedings in the end of 2015. Consequent upon the winding up of the two companies, the Government of Mizoram, with an object to accommodate employees of the erstwhile two companies made two different Schemes, which are, 1) Appointment into Government Service Scheme and 2) 'Mizoram State Public Sector Enterprises' Early Retirement Rules, 2015, hereinafter referred to as ERR Scheme. 6. The petitioners' counsel submits that options were invited from the employees of the two companies, as to which of the Schemes they would choose/opt for and depending upon the chosen Scheme, the employees were to be either accommodated into either of the two Schemes. 7. 6. The petitioners' counsel submits that options were invited from the employees of the two companies, as to which of the Schemes they would choose/opt for and depending upon the chosen Scheme, the employees were to be either accommodated into either of the two Schemes. 7. As per the "Appointment into Government Service Scheme", the employees of the companies were to be accommodated into vacant Group 'B', 'C' and 'D' category posts lying vacant in different departments of the Government of Mizoram. If the employees opted for the ERR Scheme, the employees would be given retirement benefits under the said Scheme. The two Schemes that were pressed into service for accommodating the employees of the companies or for giving retirement benefits was enumerated in the OM dated 30.09.2015 issued by the Finance Commission to the Government of Mizoram. It was also provided in the OM dated 30.09.2015, that if the employees did not choose an option, they would be given retirement benefits as per the ERR Scheme. 8. The case of the petitioners in WP(C) No. 47 of 2016 is that they did not exercise their options for either of the Scheme, inasmuch as, the State respondents did not make any provision for accommodating Group 'A' Officers of the company into an equivalent Group 'A' post under the Government of Mizoram. 9. The petitioners' counsel submits that the appointment into Government Service Scheme was discriminatory, inasmuch as, the company was funded and controlled by the Government of Mizoram. As such, the State respondents had a duty to accommodate the petitioners into a Group 'A' post under the Government of Mizoram on closure of the companies, which had been done on the direction of the State Government. The petitioners' counsel submits that the direction of the State Government to close the companies had been done by following the recommendation of the Deloitte & Touche Consulting India Private Limited. 10. The petitioners' counsel submits that as per the OM dated 30.09.2015, employees accommodated under the appointment into Government Service Scheme were to be treated as new employees and even a Group 'A' employees of the company could be accommodated only to a Group 'B', 'C' and 'D' category post under the Government of Mizoram. He also submits that there was no pay protection for the petitioners. He also submits that there was no pay protection for the petitioners. The petitioners' counsel also submits that those employees who are not appointed into Government Service were to be retired under the ERR Scheme. 11. The petitioners' counsel submits that the "Appointment into Government Service Scheme" is liable to be set aside in view of the fact that the policy decision of the Council of Ministers approving the Second Supplementary Memorandum on Public Sector Enterprise Restructuring had not been followed by way of a notification expressed to be taken under the name of the Governor under Article 166 of the Constitution. 12. The petitioners' counsel thus submits that the impugned OM dated 30.09.2015 with respect to the "Appointment into Government Service Scheme" should be set aside and a direction should be issued to accommodate the petitioners into a Group 'A' post under the Government of Mizoram. 13. In respect of WP(C) No. 54 of 2016, the petitioners' counsel submits that the petitioners had opted for appointment into Government service as per the OM dated 30.09.2015. The petitioners therein have also been appointed to various Group 'C' post under the Government of Mizoram, vide Office Orders dated 18.01.2016 and 29.01.2016. The petitioners in WP(C) No. 54 of 2016 have also submitted their joining reports with the condition that the same would not prejudice their case pending in the High Court. In respect of the petitioner No. 4 in WP(C) No. 54 of 2016, petitioner No. 4 took part in the selection process for appointment to the Government post but did not join. Accordingly, the petitioner No. 4 was retired as per ERR. In WP(C) No. 54 of 2016, the petitioners' counsel prays for absorption of the petitioners to a Group 'A' post with past service benefits, pay protection, seniority etc, by interfering with the Second Supplementary Memorandum on Public Sector Enterprise Restructuring approved by the Council of Ministers in its meeting held on 18.02.2015 and by setting aside the OM dated 30.09.2015. 14. Mr. Rosangzuala Ralte, learned Government Advocate submits that the petitioners were employees of the registered companies, who have a separate existence and are separate legal entities. The Government Advocate submits that the company is not an extension of the Government and the pay of the employees of the companies are not paid through the Consolidated Fund of the State. 14. Mr. Rosangzuala Ralte, learned Government Advocate submits that the petitioners were employees of the registered companies, who have a separate existence and are separate legal entities. The Government Advocate submits that the company is not an extension of the Government and the pay of the employees of the companies are not paid through the Consolidated Fund of the State. He also submits that the CCS(CCA) Rules is not applicable to a company employee as they are governed by their Memorandum/Articles of Association and their own guidelines, while the same is applicable to a Government servant. He submits that the State Government with a view to help the employees of the wound up companies had made the two Schemes and no fault or illegality can be attributed to the State Government in trying to help the employees of companies that were going to be wound up. He also submits that no right accrues to the petitioners to be accommodated/appointed to a Group 'A' post under the Government. 15. I have heard the learned counsels for the parties. 16. It is an admitted fact that there is no dispute with regard to the winding up of the two companies. The petitioners are also not aggrieved with the winding up of the two companies as no representation has been made by them to any person or even before the companies itself. The petitioners' submission with regard to the legality of the "Appointment into Government Service Scheme", wherein they state the same is not in conformity with the requirement of law, is at variance with the submission made in respect to the case in WP(C) No. 54 of 2016. 17. In the case of Cauvery Coffee Traders, Manglore v. Hornor Resources (International) Co. Ltd., (2011) 10 SCC 420 , the Apex Court has held that a person cannot blow hot and cold at the same time. In WP(C) No. 47 of 2016, the petitioners have prayed for setting aside the "Appointment into Government Service Scheme" while in WP(C) No. 54 of 2016, the petitioners have been appointed on the basis of the "Appointment to Government Service Scheme" and the petitioners in WP(C) No. 54 of 2016 have also joined in their posts, after having opted for "Appointment into Government Service Scheme". 18. 18. In respect of the petitioner No. 4 in WP(C) No. 54 of 2016, the petitioner No. 4 took part in the selection process but refused to join the post and was accordingly given retirement benefits under the ERR Scheme. 19. The above fact goes to show that the petitioners in WP(C) No. 54 of 2016 have not made a challenge to their selection process as per the "Appointment to Government Service Scheme". In any event, the Apex Court in the case of Ramesh Chandra Shah and Others v. Anil Joshi and Others reported in (2013) 11 SCC 309 , has held that a person who took part in the process of selection, cannot thereafter turn around and question the method of selection and its outcome. 20. In respect of WP(C) No. 47 of 2016, this Court finds that many persons/employees of the erstwhile ZOHANDCO company had been appointed to Government posts under the "Appointment to Government Service Scheme". Though the petitioners in WP(C) No. 47 of 2016 have made a challenge to the said Scheme, the persons appointed to Government Service under that Scheme have not been impleaded as parties in the present case. 21. In the case of Prabodh Verma and Others v. State of Uttar Pradesh and Others reported in AIR 1985 SC 167 , the Apex Court has held that a High Court ought not to decide a writ petition under Article 226 of the Constitution of India without the presence of those persons who would be vitally affected by its judgment. 22. This Court finds that the petitioners have not been able to show under what basis/right the petitioners should be appointed to a Group 'A' post under the Government, just because they are Group 'A' Officers under a company. An employee of the company has no vested right to be appointed to a Government post on the closure of the company, just because the company is having Directors, who are Government Officers. A company is a different legal entity having a separate existence from the Government. Further, there being no challenge to the 'Mizoram State Public Sector Enterprises' Early Retirement Rules, 2015, this Court finds no infirmity in the implementation of the said ERR Scheme. 23. In view of the reasons stated above, this Court does not find any merit in the two writ petitions and accordingly, the writ petitions are dismissed. Further, there being no challenge to the 'Mizoram State Public Sector Enterprises' Early Retirement Rules, 2015, this Court finds no infirmity in the implementation of the said ERR Scheme. 23. In view of the reasons stated above, this Court does not find any merit in the two writ petitions and accordingly, the writ petitions are dismissed. However, in view of the facts of the case, which shows that the petitioners in WP(C) No. 47 of 2016, have not exercised their options with regard to the "Appointment to Government Service Scheme" or the ERR earlier, which may have been due to any number of reasons, this Court is of the view that an option should be offered again to the petitioners in WP(C) No. 47 of 2016. Accordingly, the State respondents are directed to offer options to the petitioners of WP(C) No. 47 of 2016, as to whether they would want to opt for the "Appointment to Government Service Scheme" or the ERR Scheme. The State respondents will thereafter act upon the options, as far as possible. 24. The same should be done within a period of 1 (one) month from the date of receipt of a copy of this order. 25. Consequently, the Office Order dated 10.03.2016 is hereby set aside to the extent that it is relatable to the petitioners in WP(C) No. 47 of 2016.