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2018 DIGILAW 1539 (GAU)

S. ZOTHANSANGA v. STATE OF MIZORAM

2018-10-12

ACHINTYA MALLA BUJOR BARUA, SUMAN SHYAM

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JUDGMENT : A.M. BUJOR BARUA, J. 1. Heard Mr. C. Lalramzauva, learned senior counsel for the petitioners as well as Ms. Linda L. Fambawl, learned counsel appearing for the authorities in the State Government. 2. The petitioner Nos. 1 to 5 were appointed as Overseer Grade-II (WC) respectively on 10.05.1994 and 12.05.1994, on a work charge basis, whereas the petitioner No. 6 was appointed as Junior Engineer (WC) on 27.06.1996 also on a work charge basis. Having so worked, by the Office Order dated 05.06.2009 under the signature of the Chief Engineer Public Health Engineering Department (PHED) and on the recommendation of the Departmental Promotion Committee, they were regularized against the regular post of Overseer Grade-II (for short, OS-II). The service condition of the Overseer was earlier governed by the Recruitment Rules as provided under the Notification No. PWE 97/73/225 dated 31.10.1975. But subsequently on the framing of the Mizoram Public Works Department and Public Health Engineering Department (Group "C" post) Recruitment Rules, 2000 (hereinafter to be referred to as the Group C Rules of 2000) under the proviso to Article 309 of the Constitution of India, the earlier recruitment Rules stood repealed. The said Rules were notified as per the Notification No.A.12018/29/80-APT(B) dated 20.09.2000, and published in the Mizoram Gazette dated 18.10.2000. Under the Group C Rules of 2000, the posts of OS-II are to be filled up 100% by promotion, out of which 97% of the posts are to be filled up from Trained Section Assistant (TSA) with 5 years of regular service in the grade and 3% of the posts from the Trained Surveyor (TS) with 5 years regular service. 3. Another set of Rules also under the proviso to Article 309 of the Constitution of India called the Mizoram Public Works Department and Public Health Engineering Department (Group "B" Post) Recruitment Rules 2000, (hereinafter to be referred to as the Group B Rules of 2000) were also framed. Under the Group B Rules of 2000, the posts of Junior Engineer (Civil) (JE for short) are required to be filled up 90% by direct recruitment and 10% by promotion. For the purpose of promotion, the feeder post provided was OS-II with 5 years of regular service in the grade, after having passed the departmental examination in Engineering and Accounts. 4. For the purpose of promotion, the feeder post provided was OS-II with 5 years of regular service in the grade, after having passed the departmental examination in Engineering and Accounts. 4. A conjoint reading of the Group C Rules of 2000 and Group B Rules of 2000 goes to show that the TSA and TS would be a feeder post for being promoted to the cadre of OS-II and OS-II would be a feeder post for promotion to the cadre of JE. It is taken note of that the qualifying service for promotion from TSA/TS to OS-II and also from OS-II to JE are both 5 years. Therefore, having the total qualifying period of 10 years i.e., 5 years as TSA/TS and 5 years as OS-II, upon promotion, an incumbent would be qualified for promotion to the cadre of JE. 5. Prior to the 5th Pay Commission, the post of OS-II carried a pay scale of Rs. 1400-2300, whereas the post of TSA/TS carried the pay scale of Rs. 1350-2200. Upon revision by the 5th Pay Commission, the respective pay scales stood at Rs. 4500-7000 for OS-II and also Rs. 4500-7000 for TSA/TS. In the year 2008, the respective pay scales were changed to Rs. 5500-92000 for OS-II and Rs. 5000-80000 for TSA/TS. Subsequently under the Mizoram Revision of Rules, 2010, the pay scale of OS-II stood at Rs. 5200-20,200 + GP 2800 and in respect of TSA/TS also it stood at Rs. 5200-20,200 + GP 2800. But later on, as per pay upgradation bought in by the Government of Mizoram Employees Rules, 2012, the pay scale applicable to OS-II was increased to Rs. 9300-34800 + GP 4200, whereas the pay scale in respect of TSA/TS remained at Rs. 5200-20200 + GP 2800. 6. As already indicated after the 5th Pay Commission, the pay scale applicable to OS-II and TSA/TS both stood at 4500-7000, meaning thereby that both the posts carried the same scale of pay. 7. 9300-34800 + GP 4200, whereas the pay scale in respect of TSA/TS remained at Rs. 5200-20200 + GP 2800. 6. As already indicated after the 5th Pay Commission, the pay scale applicable to OS-II and TSA/TS both stood at 4500-7000, meaning thereby that both the posts carried the same scale of pay. 7. As Group C Rules of 2000 and Group B Rules of 2000 provides that the posts of OS-II are to be filled up by promotion from TSA/TS and on the other hand, the posts of JE are to be filled up by promotion from OS-II meaning thereby, the TSA/TS is a feeder cadre of OS-II and OS-II is the feeder cadre of JE, an anomalous situation had arisen that inspite of it being so, both the post of TSA/TS and OS-II carried the same scale of pay. 8. In order to remove the anomaly, the Mizoram Public Health Engineering Department (Group "B" Post) Recruitment Rules 2006 (for short, Rules of 2006) were framed, which was also under the proviso to Article 309 of the Constitution of India. As per the Rules of 2006, the cadre of JE is to be filled up by 75% by direct recruitment and 25% by promotion. For the purpose of promotion, the feeder cadre was provided to be both OS-II and TSA/TS with atleast 5 years of regular service in the cadre. The Rules of 2006 were notified by the Notification dated 20.04.2006 and published in the Mizoram Gazette dated 25.04.2006. It was further provided that the Rules of 2006 substituted the earlier Group B Rules of 2000 as regards the post of JE. 9. From the above, it is discernible that the Rules of 2006 had repealed the Group B Rules of 2000, although no express provision was made that the Rules of 2006 also repealed the Group C Rules of 2000. But when the provisions of the Rules of 2006 is examined, it is noticed that the said Rules provides that the feeder cadre for the cadre of JE would be OS-II as well as TSA/TS, the implication whereof would be that the provision of Group C Rules of 2000 providing for the cadre of TSA/TS to be a feeder cadre for OS-II also impliedly stood repealed. 10. 10. Accordingly, we are of the view that although it has not been specifically provided in the Rules of 2006 it also repeals the Group C Rules of 2000, but there is an implied repeal/amendment of the Group C Rules of 2000. In other words, the Rules of 2006 had repealed both the Group B Rules of 2000 as well as the Group C Rules of 2000. As indicated above, apparently, the Rules of 2006 had removed the anomaly of the cadre of TSA/TS being a feeder cadre for promotion to OS-II, although both the cadres carried the same scale of pay. But although the earlier anomaly of TSA/TS being the feeder cadre of OS-II, at the same time, carried the same scale of pay as that of OS-II had been removed, but a further anomalous situation that continued to exist even after the Rules of 2006 were framed was not addressed. The post of OS-II required the essential qualification of 3 years diploma in Engineering after matriculation whereas for TSA/TS the required qualification was matriculation with a six months training course. 11. Accordingly, by bringing in an equivalence between the cadres of OS-II and TSA/TS by providing them equal opportunity of promotion to the cadre of JE as per the Rules of 2006, another disparity was created whereby the two different cadres having a distinctly different eligibility qualification was brought at par and made equivalent to each other. The further anomaly that got created by the equivalence brought in by the Rules of 2006 was again addressed by the Notification dated 04.07.2012 of the Secretary to the Government of Mizoram in the Finance Department whereby in exercise of power under the proviso to Article 309 read with Article 162 of the Constitution of India, the pay scale of OS-II was upgraded to Rs. 9300-34800 + GP 4200, whereas the pay scale in respect of TSA/TS was retained Rs. 5200-20,000 +GP 2800. The said upgradation of the pay scale in respect of OS-II was perhaps made in view of the fact that the eligibility qualification for the cadre of TSA/TS is lower than that of the cadre of OS-II. 12. 9300-34800 + GP 4200, whereas the pay scale in respect of TSA/TS was retained Rs. 5200-20,000 +GP 2800. The said upgradation of the pay scale in respect of OS-II was perhaps made in view of the fact that the eligibility qualification for the cadre of TSA/TS is lower than that of the cadre of OS-II. 12. The resultant situation was that under the Rules of 2006, both OS-II and TSA/TS would be a feeder cadre for promotion to the cadre of JE with an apportionment of 50% each, but at the same time, the cadre of OS-II would carry a higher pay scale of Rs. 9300-34800 +GP 4200, whereas the cadre of TSA/TS would carry the pay scale of Rs. 5200-20200 + GP 2800. 13. In the circumstance, the provision of the Rules of 2006 giving equivalence to the cadre of TSA/TS and OS-II for the purpose of promotion to the cadre of JE has been assailed in this writ petition. 14. The ground of assailing the provision of Rules of 2006 which provides for an equivalence in the aspect of being a feeder cadre for promotion to the cadre of JE to the extent that both TSA/TS and OS-II are the feeder cadres for promotion with an apportionment of 50%, although the pay scales for the posts in the two cadres and also their eligibility qualification are different is that would violate Article 14 of the Constitution of India. 15. The Rules of 2006 had been assailed in the background of the facts that by a letter dated 23.11.2016 of the Deputy Director (Administration) in the office of the Engineering Chief of PHED, the five available vacant posts in the cadre of JE are sought to be filled up by promotion from amongst the TSA/TS and for the purpose the date of the next DPC had already been fixed. 16. The State respondent authorities in their affidavit-in-opposition stated that in view of the difference in the pay scale for the posts in the cadres of OS-II and TSA/TS, necessary steps were taken by the Department to study and examine the existing recruitment rules and for the purpose a committee was constituted. 16. The State respondent authorities in their affidavit-in-opposition stated that in view of the difference in the pay scale for the posts in the cadres of OS-II and TSA/TS, necessary steps were taken by the Department to study and examine the existing recruitment rules and for the purpose a committee was constituted. The committee expressed the view that 50% of the promotional post in the cadre of JE shall be reserved for OS-II, who had rendered atleast 5 years continuous service in the Grade and the other 50% in the promotional quota to be reserved for TSA/TS who had rendered atleast 10 years of regular service in the Grade. But the said proposition made by the committee had not yet been approved by the Government of Mizoram. In the affidavit, another stand has been taken that there is no bar in placing the posts carrying different scales of pay as the feeder grade for promotion of a higher grader and further framing an amendment of Recruitment Rules is the prerogative of the Governor under Article 309 of the Constitution of India. 17. We have considered the submissions made by the parties. The sequence of events leading to the present situation is that initially when the Group B Rules of 2000 and Group C Rules of 2000 were in force, the TSA/TS was a feeder cadre for promotion to the cadre of OS-II, whereas OS-II was a feeder cadre for promotion to the cadre of JE. In other words, the hierarchy of post was JE-OS-II-TSA/TS. But for some reason, the 5th Pay Commission made the scale of pay applicable to OS-II and TSA/TS the same, inspite of the factor that OS-II required a higher eligibility qualification than TSA/TS. But be that as it may, as the pay scale applicable was made the same, there was also a corresponding requirement to give equal promotional avenue to both the cadres. Consequent thereof, the Rules of 2006 was framed making both OS-II and TSA/TS to be a feeder cadre for JE. But again the difference in the eligibility qualification between the two cadres remained, which stood remedied by the Notification of 2012 making the scale of pay applicable to OS-II higher than that of TSA/TS. Consequent thereof, the Rules of 2006 was framed making both OS-II and TSA/TS to be a feeder cadre for JE. But again the difference in the eligibility qualification between the two cadres remained, which stood remedied by the Notification of 2012 making the scale of pay applicable to OS-II higher than that of TSA/TS. Although the disparity between the OS-II, TSA/TS was restored by upgrading the scale of pay of OS-II, while retaining the same pay scale for TSA/TS but the earlier equivalence brought in by the Recruitment Rules of 2006 making both OS-II and TSA/TS to be a feeder cadre for promotion to the next higher cadre of JE still remained. 18. Although the suggestion of the committee constituted for the purpose that 50% of the promotional quota to the cadre of JE be reserved for OS-II with 5 years experience and the other 50% be reserved for TSA/TS with 10 years experience may have restored the disparity between the cadres of OS-II and TSA/TS, but no view is expressed on the same, inasmuch as, the said suggestion has not yet been given a consideration by the Government of Mizoram. 19. Again the stand of the Government of Mizoram that there is no bar in placing the post carrying different scales of pay as feeder grade for promotion to a higher grade would also have to be unacceptable inasmuch as, if two cadres carrying different scales of pay are to be equally placed for being the feeder cadre for promotion to a higher cadre, the same would definitely be a case where two unequals are made equal. Such a situation, in our view would violate Article 14 of the Constitution of India. In the resultant situation, where the cadre of OS-II is presently carrying a higher scale of pay and having a higher eligibility qualification has been placed on a equal footing as that of TSA/TS for the purpose of promotion to the next higher cadre of JE, a situation has arisen where two unequal classes are being subjected to an equal treatment which would violate Article 14 of the Constitution of India. 20. In this respect, reference is made to the proposition laid down by the Supreme Court in paragraph-23 of Venkateshwara Theatre Vs. State of A.P,, (1993) 3 SCC 677 , which is as follows:- "23. 20. In this respect, reference is made to the proposition laid down by the Supreme Court in paragraph-23 of Venkateshwara Theatre Vs. State of A.P,, (1993) 3 SCC 677 , which is as follows:- "23. Just as a difference in the treatment of persons similarly situate leads to discrimination, so also discrimination can arise if persons who are unequals, i.e. differently placed, are treated similarly. In such a case failure on the part of the legislature to classify the persons who are dissimilar in separate categories and applying the same law, irrespective of the differences, brings about the same consequence as in a case where the law makes a distinction between persons who are similarly placed. A law providing for equal treatment of unequal objects, transactions or persons would be condemned as discriminatory if there is absence of rational relation to the object intended to be achieved by the law." 21. The class of TSA/TS having a pay scale of Rs. 5200-20200+GP 2600 with a required eligibility condition of matriculation and six months training course would be in a different class than that of OS-II, having a pay scale of Rs. 9300-34800 + GP 4200 with a required qualification of three years diploma in Engineering after matriculation. There being a reasonable classification with an intelligible differentia, OS-II and the TSA/TS cannot be placed similarly and if done, would not succeed the test of equality under Article 14 of the Constitution of India. 22. For the reasons stated herein above, we are of the considered opinion that Rules of 2006 treats two unequal category of officials, viz. OS-II and TSA/TS in the same footing for the purpose of considering their cases for promotion to the next higher grade of JE and is therefore, held to be discriminatory in nature in so far as the rights of Officers in the grade of OS-II is concerned. As the provisions of Rules of 2006 providing for both OS-II and TSA/TS to be a feeder cadre for promotion to the next higher cadre of JE would be unacceptable for there being a reasonable classification between the cadres of OS-II and TSA/TS, the principle of equality under Article-14 would be violated. In the result, the provisions of the Rules of 2006 providing for TSA/TS to be also a feeder cadre for promotion to the cadre of JE are set aside. In the result, the provisions of the Rules of 2006 providing for TSA/TS to be also a feeder cadre for promotion to the cadre of JE are set aside. As a conclusion was arrived that there was an implied repeal of the Rules of 2006 as because of the provisions in the Rule of 2006 providing for a promotional avenue from the cadre of TSA/TS to the cadre of JE and the said provision having been set aside, the conclusion of implied repeal of the Group-C Rules of 2000 also accordingly ceases to exist. 23. We clarify that as a consequence of the determination made above, the process of promotion initiated by the respondents under the Rules of 2006 would also stand interfered with. 24. The writ petition stands allowed to the extent indicated above.