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2018 DIGILAW 1141 (GAU)

Jacinta Laltanpuii v. State of Mizoram

2018-08-03

ACHINTYA MALLA BUJOR BARUA, SUMAN SHYAM

body2018
JUDGMENT : A.M. Bujor Barua, J. Heard Mr. A.R. Malhotra, learned counsel appearing for the appellant. Also heard Ms. Mary L. Khiangte, learned counsel for the authorities in the Government of Mizoram and Mrs. Dinari T. Azyu, learned counsel for the authorities in the Mizoram Public Service Commission. None appears for the respondent No.6, in spite of notice being duly served. 2. The appellant was appointed to the post of Assistant Engineer/Sub-Divisional Officer (AE/SDO) in the Minor Irrigation Department of the Government of Mizoram, in the scale of Pay Band-3 Rs. 15600-39100/- Grade pay-5400/- plus other allowances as per the notification dated 26.09.2011 of the Secretary to the Government of Mizoram, Minor Irrigation Department. The appointment was made on the recommendation of the Mizoram Public Service Commission (in short, MPSC). By the same notification, several other persons were also appointed to the post of AE/SDO, including that of the respondent No.6. The notification shows that the candidates were appointed in order of merit and accordingly, it is to be construed that in the appointment process the appellant was the No.1 candidate in order of merit. 3. It is an admitted factual position of the parties that at the relevant point of time, when the two posts in the cadre of Executive Engineer (EE) fell vacant on 07.07.2011 and 31.07.2012, respectively, the Government of Mizoram Minor Irrigation Department (Group 'A' posts) Recruitment Rules, 2009 was in force. Rule 4 thereof, provides that the method of recruitment to the various posts shall be in accordance to the provisions of column 5 to 14 of Annexure-I of the Rules. Annexure-I provides that the posts in the cadre of EE shall be filled up 100% by promotion, out of which 75% shall be filled up by Graduate Engineers and the other 25% by Diploma Engineers and in the event, if appropriate candidates are not available, it may also be filled up by deputation. Annexure-I also provides that the AE/SDO who have not less than 5 years of regular service are eligible for such promotion and that the Departmental Promotion Committee (DPC) for the purpose would be the Mizoram Public Service Commission (MPSC). 4. Annexure-I also provides that the AE/SDO who have not less than 5 years of regular service are eligible for such promotion and that the Departmental Promotion Committee (DPC) for the purpose would be the Mizoram Public Service Commission (MPSC). 4. As already noted, the two posts in the cadre of EE had fallen vacant on 07.07.2011 and 31.07.2012 and therefore, as on 07.07.2011 when the first post had fallen vacant, the appellant was not even appointed in the service and when the other posts had fallen vacant on 31.07.2012, the appellant had hardly completed 10 months of service in the cadre of AE/SDO. 5. The Rules of 2009 stood repealed by the Mizoram Engineering Service Rules, 2013 (in short the Rules of 2013). As per the Rules of 2013 promotion to the Senior Grade, which also includes the cadre of EE is to be made from amongst the eligible candidates from the Junior Grade, who had completed not less than 5 years of continuous regular service in the Grade, where the Junior Grade also includes the cadre of AE/SDO, with a further requirement that such candidates must have passed the departmental examinations in Engineering and Accounts conducted by the MPSC. 6. On an inter-se comparison between the provisions of the Rules of 2009 and the Rules of 2013 in respect of promotion from the cadre of AE/SDO to EE, it is discernable that under the Rules of 2009 also, there was a requirement of a qualifying service of 5 years, which is also incorporated in the provisions under the Rules of 2013. But under the Rules of 2013, a further requirement had been included that in order to be eligible for such promotions, the candidates would also have to pass a departmental examination in Engineering and Accounts to be conducted by the MPSC. In other words, under the Rules of 2013, in the event a candidate acquires the eligibility of 5 years of qualifying service, but still if the candidate does not pass the departmental examination in Engineering and Accounts to be conducted by the MPSC, such candidates would remain ineligible for the promotion. 7. In other words, under the Rules of 2013, in the event a candidate acquires the eligibility of 5 years of qualifying service, but still if the candidate does not pass the departmental examination in Engineering and Accounts to be conducted by the MPSC, such candidates would remain ineligible for the promotion. 7. In the instant case, although the appellant herein was appointed as AE/SDO on 26.09.2011 and had completed 5 years of continuous service but she had not passed the departmental examination in Engineering and Accounts and therefore, was considered to be ineligible when the DPC had considered from amongst the eligible candidates for promotion to the cadre of EE under the Rules of 2013. In the resultant promotion process, the respondent No. 6 was so promoted as an EE. 8. Being aggrieved by the promotion of the respondent No. 6, the appellant preferred WP(C) No. 60/2017, assailing the promotion primarily on the ground that at the relevant point of time when the vacancies had arisen, the Rules of 2009 was in force and therefore, as per the principles laid down by the Supreme Court in Y.V. Rangaiah & Ors v. J. Sreenivasa Rao & Ors, reported in 1983 (3) SCC 284 and Kulwant Singh v. Daya Ram, reported in (2015) 3 SCC 177 , the promotional process ought to have been undertaken under the Rules of 2009 and not the Rules of 2013. According to the appellant, as the Rules of 2009 did not have the requirement of passing the departmental examination in Engineering and Accounts, the appellant would have been eligible also otherwise, even if she had not passed out the departmental examination. Therefore, as the respondent authorities had conducted the promotional process under the Rules of 2013 in violation of the established principles as laid down by the Supreme Court, the entire promotional process is vitiated and the appellant was illegally left out from being considered for promotion. 9. The learned Single Judge by the Judgment & Order dated 24.05.2017 arrived at a conclusion that even though the Rules of 2009 was in force when the vacancies had occurred, but the appellant was not eligible for promotion during the period when the Rules of 2009 was still in force and that by the time, the appellant had acquired the eligibility for being considered under the Rules of 2009, the Rules of 2013 was already in force. According to the learned Single Judge, in the circumstance the promotional process for filling up the vacant post in the cadre of EE could not have been made under the Rules of 2009. The learned Single Judge also took into consideration that as the appellant had passed the departmental examination after the Rules of 2013 came into force, therefore, he was unable to show that his rights were violated by not considering his case for promotion under the Rules of 2009. 10. Being aggrieved by the Judgment & Order of 24.05.2017 in WP(C) No. 60/2017, the present appeal has been preferred. 11. Mr. A.R. Malhotra, learned counsel for the appellant firstly reiterates his earlier submission before the learned Single Judge that by following the principles of law laid down by the Supreme Court in Y.V. Rangaiah (Supra), the promotional process for the two vacant posts in the cadre of EE ought to have been done under the Rules of 2009, inasmuch as, the two vacancies had occurred when the Rules of 2009 were in force. He further refers to an Office Memorandum dated 21.02.2017 of the Government of Mizoram in the Department of Personnel & Administrative Reforms wherein, it is provided in Clause 4 thereof, that any vacancy should be filled up in accordance with their Recruitment Rules/Service Rules in force on the date of occurrence of the vacancy. A further submission has also been made that when the required steps were taken by the departmental authorities for filling up the two posts of EE in April 2017, the appellant had already completed 5 years of service as AE/SDO, as required by the Rules of 2009, and therefore her promotion ought to have been considered under the Rules of 2009. 12. Ms. Mary L. Khiangte, learned counsel appearing for the authorities in the Government of Mizoram, by referring to the seniority list of the AE/SDO as indicated in the Notification dated 07.06.2013 submits that all the AE/SDO in the department were appointed as such on 26.09.2011. Therefore, as on 07.07.2011 and 31.07.2012, when the two vacancies had arisen, none of the AE/SDO were in service when the first vacancy had arisen and in respect of the second vacancy, none of them had the qualifying period of 5 years for being promoted as EE. Therefore, as on 07.07.2011 and 31.07.2012, when the two vacancies had arisen, none of the AE/SDO were in service when the first vacancy had arisen and in respect of the second vacancy, none of them had the qualifying period of 5 years for being promoted as EE. In such view of the matter, the departmental authorities were not in a position to consider the promotion to the two vacant posts of EE at the relevant point of time when the vacancies had arisen or immediately thereafter. According to the learned counsel, because of such factual circumstance, where none of them could have been considered for promotion when the vacancies had arisen, the principles of law laid down by the Supreme Court in Y.V. Rangaiah (Supra), would not be applicable in the present case. It is the further submission of Ms. Mary L. Khiangte, that the Office Memorandum of 21.12.2017 merely reiterates the principle of law laid down by the Supreme Court in the aforementioned cases, and therefore, for the same reason, the provision of the Office Memorandum would also not be applicable in the case of the appellant. 13. On a consideration of the rival submissions, one of the aspects for determination would be as to whether the principle of law laid down by the Supreme Court in Y.V. Rangaiah (Supra) and the other decisions, lays down an inflexible rule of law that under all circumstance, without any exception, the provisions of the Rules in force when the vacancies had arisen would be invariably applicable. 14. In paragraph-6 of the Judgment of the Supreme Court in Y.V. Rangaiah (supra), the factual matrix upon which the decision was rendered is recorded in paragraph-6, wherein it is stated that although the authorities were required to prepare a panel for filling up the vacancies that had arisen between December 1975 and April 1977, but for no apparent reason, the required panel was not prepared. The Supreme Court further took note of that had the appropriate panel been prepared by the authorities, the eligibility of the candidates necessarily would have been considered under the Rules that were in force prior to the amendment. The Supreme Court also took note that not preparing the panel for the year 1976-1977 was in violation of the Rules. 15. The Supreme Court further took note of that had the appropriate panel been prepared by the authorities, the eligibility of the candidates necessarily would have been considered under the Rules that were in force prior to the amendment. The Supreme Court also took note that not preparing the panel for the year 1976-1977 was in violation of the Rules. 15. In the aforesaid circumstance in paragraph-9, the Supreme Court arrives at a conclusion that under the old Rules, the panel was required to be prepared every year in the month of September and on that panel been prepared in the required manner, the promotions could have been made from the panel. As the promotion to the incumbents therein were denied as because the departmental authorities had not perform their required duty of preparing the panel in time, therefore under the circumstance, the principle of law was laid down that the vacancies, which had occurred prior to the amended Rules would have to be governed by the old Rules and not by the amended Rules. The said principle laid down in paragraph-9 of Y.V. Rangaiah (Supra), had been reiterated in many other subsequent decisions. 16. When the circumstance prevailing in the present appeal is been examined, it is noted that although the vacancies may have arisen on 07.07.2011 and 31.07.2012 and ordinarily, the said two vacancies ought to have been filled up under the Rules of 2009, but during the period for which the Rules of 2009 was in force, the appellant could not have been considered for promotion, as she did not have the required qualifying service of 5 years in the post. It being so, it cannot be said that the departmental authorities had not performed its duties of considering the appellant for such promotion at the relevant point of time when the vacancies had arisen and therefore, in order to mitigate the injuries that she may had suffered because of such violation, the promotional process be taken up under the Rules of 2009. If the appellant could not have been considered for promotion during period for which the Rules of 2009 was in force, in such event no legal right of the appellant had been violated by not considering the case of the appellant for promotion under the Rules of 2009. 17. If the appellant could not have been considered for promotion during period for which the Rules of 2009 was in force, in such event no legal right of the appellant had been violated by not considering the case of the appellant for promotion under the Rules of 2009. 17. Accordingly, the contention of the appellant that the promotional process for the two vacant posts of EE ought to have been undertaken under the Rules of 2009 is unacceptable and the promotional process undertaken cannot be faulted with, in the facts and circumstance of the present case, merely by adopting the principle laid down by the Supreme Court in Y.V. Rangaiah (Supra) that the Rules prevailing at the time when the vacancies had arisen should govern the process for promotion for the concerned vacancies. Accordingly, we are also of the view that the provisions of the Office Memorandum dated 21.02.2017 also cannot be made the basis to conclude that the promotional process undertaken as per the Rules of 2013 in respect of the vacancies that had arisen on 07.07.2011 and on 31.07.2012 is vitiated, inasmuch as, the said Office Memorandum is not an independent provision but merely a reiteration of the law laid down by the Supreme Court in Y.V. Rangaiah (Supra) and other related cases. 18. Accordingly, we find the appeal to be devoid of any merit and the same is dismissed. 19. It is stated that in the meantime, the appellant had successfully completed the departmental examination in Engineering and Accounts and that there are two further vacancies available in the cadre of EE, which has also been admitted by the learned counsel for the authorities in the State Government. Accordingly, we provide that the dismissal of the appeal shall not be a bar for the authorities to consider the appellant for promotion to the said two available vacancies, if otherwise found eligible.