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2018 DIGILAW 1708 (GAU)

K. Vanlalhmangaihi v. Mizoram University

2018-12-06

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : Michael Zothankhuma, J. 1. Heard Mr. C. Lalramzauva, learned senior counsel for the petitioners. Also heard Mr. Aldrin Lallawmzuala, learned counsel for the respondent Nos. 1 to 3 and Mrs. Dinari T. Azyu, learned counsel for the respondent Nos. 4 and 5. 2. The petitioners' grievance in the present writ petition is with regard to the appointment of the respondent Nos. 4 and 5 as Section Officers in the Mizoram University, on the ground that the private respondents do not have the eligibility criteria for being appointed to the said post, as per the eligibility qualifications laid down in the Employment Notice dated 15.09.2015. 3. The petitioners' case in brief is that an Employment Notice dated 15.09.2015 was issued by the Mizoram University asking for filling up of one post of Section Officer having the pay scale of PB-2, Rs. 9300-34800 with Grade Pay of Rs. 4600/-. The educational/ desirable/other qualifications required for appointment to the post of Section Officer, as given in the Employment Notice dated 15.09.2015 is as follows:- "Educational/Desirable/Other Qualifications Essential: (i) Bachelor's degree from a recognized University with working knowledge of computer applications. (ii) 3 years' experience as Assistant or equivalent in the PB-2 Rs. 9300-34800 with GP Rs. 4200 in the Central/State Government/PSUs/Statutory/Autonomous Bodies. (iii) 8 years' experience as UDC or equivalent in the PB-1 Rs. 5200-20200 with GP Rs. 2400 in the Central/Sate Government/PSUs/Statutory/Autonomous Bodies. Desirable: Master's degree from a recognized Institution/University." 4. The private respondent Nos. 3 and 4 were thereafter appointed as Section Officers in the Mizoram University vide Order dated 14.06.2016 issued by the Registrar of Mizoram University (‘MZU’ in short). 5. The petitioners' counsel submits that as per the Office Order No. 910 dated 19.12.2013 issued by the Indira Gandhi National Open University, New Delhi, the respondent No. 4 was appointed to the post of Assistant in PB-I of Rs. 5200-20200 + GP Rs. 2400/-. The respondent No. 4 has never had any experience as an Assistant in PB-2, Rs. 9300-34800/- with GP 4200/-. Further, the respondent No. 4 has not had 8 years experience as UDC or equivalent in PB-1, Rs. 5200-20200/- with GP 2400/- as can be seen in the Office Order No. 910 dated 19.12.2013 and No Objection Certificate dated 20.11.2015 issued by the Indira Gandhi National Open University, Maidan Garhi, New Delhi. 9300-34800/- with GP 4200/-. Further, the respondent No. 4 has not had 8 years experience as UDC or equivalent in PB-1, Rs. 5200-20200/- with GP 2400/- as can be seen in the Office Order No. 910 dated 19.12.2013 and No Objection Certificate dated 20.11.2015 issued by the Indira Gandhi National Open University, Maidan Garhi, New Delhi. He also submits that the respondent No. 5 worked as a Computer Operator on Muster Roll basis since 2003 i.e. on daily wages. The counsel for the petitioners accordingly submits that though the respondent No. 5 might have had the experience of working in an equivalent post of Assistant, i.e., as a Computer Operator, he has not been given the equivalent pay scale of an Assistant, as required in the Employment Notice dated 15.09.2015. As such, the respondent No. 5 did not have the eligibility criteria to be appointed to the post of Section Officer. 6. The counsel for the respondent Nos. 4 and 5 submits that a reading of the eligibility criteria required for appointment to the post of Section Officer, does not require a person who has worked as an Assistant to be given the scale of pay of PB-2, Rs. 9300-34800/- with GP 4200/-. The counsel for the private respondents submits that the eligibility criteria only requires a candidate to be an Assistant and if not an Assistant, the said candidate should have been working in a post, which is equivalent to an Assistant in the pay scale of PB-2, Rs. 9300-34800 with GP 4200/-. The counsel for the respondent Nos. 4 and 5 thus submits that as the respondent No. 4 has been working as an Assistant for more than 3 years, i.e. since 10.09.2012 in IGNOU, though in a pay scale lower than PB-II Rs. 9300-34800/- with G.P. Rs. 4200/- the respondent No. 4 has the required eligibility criteria for the appointment to the post of Section Officer. In respect of the respondent No. 5, the counsel submits that the Under Secretary to the Government of Mizoram, Secretariat Administration Department had issued an Experience Certificate dated 24.09.2015, which is to the effect that the respondent No. 5 had been working as a Computer Operator on Muster Roll basis w.e.f. 05.07.1999 to 31.01.2011, wherein he was engaged against the sanctioned post of Computer Operator having the scale of pay of PB-2, Rs. 9300-34800 with GP 4400/- which is equivalent to the post of Assistant Grade carrying the same pay scale. The counsel for the private respondents thus submits that the respondent No. 5 has the required eligibility criteria for appointment to the post of Section Officer, though he may not have been given the equivalent pay scale of an Assistant, as he is working in a post, which is equivalent to an Assistant. The counsel for the respondent Nos. 4 and 5 also submits that the petitioners having taken part in the selection process, they cannot challenge the method of selection and its outcome, just because they were not selected. 7. Mr. Aldrin Lallawmzuala, learned counsel for the respondent Nos. 1 to 3 submits that the petitioner Nos. 1 and 2 do not have the eligibility criteria to be appointed as Section Officer, as per the eligibility qualifications enumerated in the Employment Notice dated 15.09.2015. He submits that the petitioner No. 1 was holding the post of Assistant under KVK, which is not treated as equal in rank and status with the post of Assistant under the Government of Mizoram, as can be seen from the Notification dated 15.11.2013 issued by the Principal Secretary to the Government of Mizoram, Agriculture Department He also submits that the petitioner No. 2 has been working as an Assistant Engineer for 8 years in the same scale of pay, as reflected in the Employment Notice dated 15.09.2015. However, the work of an Assistant Engineer is in the teaching line while, the work required of a Section Officer is clerical work. He accordingly submits that the petitioners do not have the eligibility qualifications to be appointed as Section Officers, as required in the Employment Notice dated 15.09.2015. As the petitioners do not have the eligibility criteria to be appointed as Section Officers, they cannot be said to be aggrieved by the appointments of the private respondents, as they have no locus-standi to file this case. 8. I have heard the learned counsels. 9. A reading of the qualification required for appointment to the post of Section Officer, as provided in the Employment Notice dated 15.09.2015 is to the effect that the candidates should have 3 years experience as Assistant or equivalent in PB-II Rs. 9300-34800/- with GP Rs. 4200/- in the Central/State Government/PSUs/Statutory/Autonomous Bodies. 8. I have heard the learned counsels. 9. A reading of the qualification required for appointment to the post of Section Officer, as provided in the Employment Notice dated 15.09.2015 is to the effect that the candidates should have 3 years experience as Assistant or equivalent in PB-II Rs. 9300-34800/- with GP Rs. 4200/- in the Central/State Government/PSUs/Statutory/Autonomous Bodies. On a bare perusal of the qualification required for appointment to the post of Section Officer, as laid down in the Employment Notice dated 15.09.2015, the only common thread between the use of the word Assistant and equivalent is PB-II Rs. 9300-34800/- with GP Rs. 4200/-. Also the pay scale of an Assistant is PB-II Rs. 9300-34800/- with GP Rs. 4200/-. In the case of S.I. Rooplal and Another vs. Lt. Governor through Chief Secretary, Delhi and Others, AIR 2000 SC 594 , the Apex Court has held that equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts, many factors other than pay will have to be taken into consideration, like the nature of duties, the responsibility and power, the minimum qualification and the salary of the post. In the present case, the Employment Notice dated 15.09.2015 has provided for only two qualifications, one is the minimum educational qualification and the second is the experience in the post of Assistant or equivalent in the PB-II Rs. 9300-34800/- with GP Rs. 4200/- in the Central/State Government/PSUs/Statutory/Autonomous Bodies. As stated earlier, the only common thread between the equivalency of a post vis-a-vis the post of an Assistant in this case is the pay scale. In view of the above, the only basis for determining whether a post is equivalent to the post of Assistant can be decided only on the basis of the pay scale given in the Employment Notice, which is PB-II Rs. 9300-34800/- with GP Rs. 4200/-. Further, the Notification dated 15.11.2013, issued by the Principal Secretary to the Government of Mizoram, Agriculture Department is to the effect that the post of Assistant under the KVK is not treated as equal in rank and status with the post of Assistant under the Government of Mizoram. As per the affidavit-in-opposition filed by the respondent Nos. 1 to 3, the Pay Band and Grade Pay of an Assistant under the Government of Mizoram is PB-II, Rs. 9300-34800/- with GP Rs. 4400/-. As per the affidavit-in-opposition filed by the respondent Nos. 1 to 3, the Pay Band and Grade Pay of an Assistant under the Government of Mizoram is PB-II, Rs. 9300-34800/- with GP Rs. 4400/-. The above being said, the Employment Notice dated 15.09.2015 does not clarify whether the qualification of experience as Assistant required, pertains to an Assistant under the KVK or under the Government of Mizoram. The further question that arises is whether an Assistant working under the Mizoram University would have the same rank and status with that of Assistant in the KVK or the Government of Mizoram. As per the Mizoram University Cadre Recruitment (Non-Teaching) Rules, 2013, the eligibility criteria required for appointment to the post of Section Officer is the same as is given in the Employment Notice. As stated earlier, the only common thread between the word Assistant and or equivalent in the Employment Notice is the scale of pay given therein, which is PB-II Rs. 9300-34800/- with GP Rs. 4200/-. Accordingly, in view of the above reasons, this Court is of the view that to be eligible for the post of Section Officer, as required under the Employment Notice dated 15.09.2015, the persons must have worked as an Assistant or in another equivalent post, both of which should be having the pay scale of PB-II Rs. 9300-34800 with GP Rs. 4200/- and should have been enjoying the said pay scale. Thus, the equivalent Grade of an Assistant would depend upon whether the candidate works in a post having the equivalent pay scale of PB-II Rs. 9300-34800/- with GP Rs. 4200/- and should have been enjoying the said pay scale. 10. In the present case, though the respondent No. 4 worked in the post of Assistant, he was enjoying the pay scale of PB-I, Rs. 5200-20200/- with GP Rs. 2400/- which is less than the pay scale stipulated in the employment notice. Thus, the respondent No. 4 cannot be said to have the qualification required for appointment to the post of Section Officer, as he did not work as an Assistant enjoying the scale of pay of PB-II Rs. 9300-34800/- with GP Rs. 4200/-. 11. The respondent No. 5, on the other hand, worked as Computer Operator on Muster Roll basis i.e. on daily wages. Though the pay scale of a Computer Operator might have been PB-II Rs. 9300-34800/- with GP Rs. 9300-34800/- with GP Rs. 4200/-. 11. The respondent No. 5, on the other hand, worked as Computer Operator on Muster Roll basis i.e. on daily wages. Though the pay scale of a Computer Operator might have been PB-II Rs. 9300-34800/- with GP Rs. 4400/- the respondent No. 5 having worked on Muster Roll basis, i.e. on daily wage basis, the respondent No. 5 could not be said to be enjoying the pay scale of PB-II Rs. 9300-34800/- with GP Rs. 4400/-. The above goes to show that the respondent No. 5 never worked as an Assistant but worked as a Computer Operator on Muster Roll basis. The Employment Notice required a candidate to have experience as an Assistant or equivalent in PB-II, Rs. 9300-34800/- with GP Rs. 4200/-. Though the respondent No. 5 worked in a post having the pay scale PB-II, Rs. 9300-34800 with GP Rs. 4400/- the respondent No. 5 was not given the above pay scale as he was engaged on Muster Roll basis. The respondent No. 5 not having been given the pay scale of PB-II, Rs. 9300-34800/- with GP Rs. 4200/- the respondent No. 5 cannot be said to be having the essential minimum qualification required for selection to the post of Section Officer. Accordingly, as the respondent Nos. 4 and 5 do not have the qualification of working as an Assistant in the pay scale of PB-II Rs. 9300-34800/- with GP Rs. 4200/- as required in Employment Notice dated 15.09.2015, this Court finds that they do not have the eligibility criteria required for being appointed to the post of Section Officer. 12. With regard to whether the State respondents could have filled up two posts of Section Officers, while the Employment Notice had notified only one vacancy to be filled up, the learned counsel for the respondent Nos. 4 and 5 submits that the Apex Court, in the case of Prem Singh and Others vs. Haryana State Electricity Board, (1996) 4 SCC 319 , had taken a lenient view by allowing the filling up of the posts, which had become vacant due to retirement, during the selection process. The learned counsel for the private respondents accordingly submits that the same leniency should be shown by this Court in this case. The learned counsel for the private respondents accordingly submits that the same leniency should be shown by this Court in this case. On perusal of the Judgment of the Apex Court in Prem Singh and Others (Supra), it is seen that while 62 posts were advertised, appointments had been made to 138 posts. As the Electricity Board had not taken into account the anticipated vacancies, i.e. 13 posts and 12 posts because of deaths, the Apex Court held: "Therefore, strictly speaking, the Board was not justified in making more than 62 appointments pursuant to the advertisement published." However, the Apex Court did not invalidate the appointments made on those 25 additional posts which were filled up, by showing leniency in the facts and circumstances of the case, but invalidated the appointments made beyond the 87 appointments made against future vacancies. The above shows that posts beyond the notified vacancies should not be ordinarily filled up. The short question that was to be answered in the above case was whether a Sub-Inspector who was appointed as such in the Border Security Force (for short the BSF) when transferred on deputation to Delhi Police in the cadre of Sub-Inspector (Executive) on being permanently absorbed in the transferred post, is entitled to count his substantive service as Sub-Inspector in the BSF for the purpose of his seniority in the Cadre of Sub-Inspector (Executive) in Delhi Police or not. In the case of Mukul Saikia and Others vs. State of Assam and Others, (2009) 1 SCC 386 and in the case of Rakhi Ray and Others vs. High Court of Delhi and Others, (2010) 2 SCC 637 , the Apex Court has held that the State cannot be allowed to fill up more posts than the notified vacancies, as that would be in violation of Articles 14 and 16 of the Constitution. In the present case, the Employment Notice dated 15.09.2015 had called for filling up of only 1 (one) post of Section Officer. However, the State respondents have filled up 2 (two) posts. In view of the law laid down by the Apex Court in Mukul Saikia and Others (Supra) and Rakhi Ray and Others (Supra), this Court finds that the appointment of 2 (two) posts of Section Officers against only one notified vacancy is illegal and unsustainable. 13. In respect of the submission made by the learned counsel for the respondent Nos. In view of the law laid down by the Apex Court in Mukul Saikia and Others (Supra) and Rakhi Ray and Others (Supra), this Court finds that the appointment of 2 (two) posts of Section Officers against only one notified vacancy is illegal and unsustainable. 13. In respect of the submission made by the learned counsel for the respondent Nos. 4 and 5 that the petitioners having taken part in the selection process, they could not be allowed to challenge the method of selection and its outcome, this Court finds that the said submission has no application to the case in hand, inasmuch as, the petitioners have not challenged the method of selection. Rather, they have challenged the decision-making process of the respondent Nos. 2 and 3 on the ground that the same is not inconformity with the criteria for selection, as laid down in the Employment Notice. In the present case, the determining factor for deciding the equivalency of a post vis-a-vis the post of an Assistant is the enjoyment of the pay scale given in the Employment Notice. Accordingly, the same had to be followed by the respondents. 14. The Employment Notice dated 15.9.2015 having required the candidates to have an eligibility criteria, as set out in the employment notice, the candidates were required to have the said eligibility criteria. As the respondent Nos. 4 and 5 do not have the said eligibility criteria, the appointments of the respondent Nos. 4 and 5 are illegal and accordingly, their appointments are set aside. 15. The petitioner No. 1 has been holding the post of Superintendent-cum-Accountant (KVK) under the Directorate of Agriculture, Government of Mizoram since 29.05.2008 in the pre revised scale of pay of Rs. 5500-175-9000/- which is equivalent to PB-II Rs. 9300-34800/- with G.P. Rs. 4200/-. The same was re-designated as Assistant and the petitioner No. 1 had already completed 7 years of service in the month of October, 2015. There is nothing in the Employment Notice dated 15.09.2015, which disqualifies the petitioner No. 1 from being appointed to the post of Section Officer. The petitioner No. 2 is an Assistant Engineer, which is equivalent to the post of Assistant enjoying the pay scale of PB-II Rs. 9300-34800/- with GP Rs. 4200/-. There is nothing in the Employment Notice dated 15.09.2015, which disqualifies the petitioner No. 1 from being appointed to the post of Section Officer. The petitioner No. 2 is an Assistant Engineer, which is equivalent to the post of Assistant enjoying the pay scale of PB-II Rs. 9300-34800/- with GP Rs. 4200/-. The qualification required for the post of Section Officer, as given in the Employment Notice dated 15.09.2015, does not bar a person who is working in a teaching line from being appointed as a Section Officer, even though, the work of a Section Officer may be clerical work. Further, just because the petitioner No. 2 is in the teaching line does not mean that he is ineligible to perform clerical work. Be that as it may, the eligibility of the petitioners cannot be challenged in this writ petition by the private respondents. Further, nothing has been brought on record to show that the petitioners were ineligible for consideration for appointment to the post of Section Officer. As this Court has held that the appointment of the respondent Nos. 4 and 5 as Section Officers are illegal and in violation of the Employment Notice dated 15.9.2015, the respondents are directed to consider the case of the petitioners alongwith all other remaining eligible candidates, in pursuant to the Employment Notice dated 15.09.2015 against the one notified post of Section Officer, as provided in the Employment Notice dated 15.09.2015. If the respondent Nos. 1 to 3 want to fill up the 2nd vacant post of Section Officer, they will have to issue a fresh advertisement for the same. 16. As stated earlier, the Apex Court in S.I. Rooplal and Another (Supra) has held that while determining the equation of two posts, many factors other than pay will have to be taken into consideration, like the nature of duties, the responsibility and power and the minimum qualification. Though the counsel for the respondent Nos. 1 to 3 has stated that the job of a Section Officer is basically to do clerical work, the respondent Nos. 1 to 3 have not clarified the meaning of the said clerical work. Though the counsel for the respondent Nos. 1 to 3 has stated that the job of a Section Officer is basically to do clerical work, the respondent Nos. 1 to 3 have not clarified the meaning of the said clerical work. In the case of Management of M/s. Sonepat Co-operative Sugar Mills Ltd. vs. Ajit Singh, AIR 2005 SC 1050 , the Apex Court has held that the job of a clerk ordinarily implies stereotype work without power of control or dignity or initiative or creativeness. However, even to a prudent man, it is clear that the clerical work that is expected of a Grade-IV employee and a Section Officer cannot be the same, simply because the qualification of a Section Officer, which is a much higher post, requires having the experience of an Assistant or its equivalent in a particular Grade Pay. The Employment Notice shows that a Section Officer is holding a much higher post than a Grade-IV employee. Accordingly, the averments made by the respondent Nos. 1 to 3 in their affidavit-in-opposition stating that the petitioner No. 2 cannot do clerical work is not sound but speculative. However, this Court is of the view that the so called clerical work of a Grade-IV employee and the Section Officer cannot be the same. As the question of whether the candidates are capable of performing the duties of a Section Officer, regard being had to the nature of duties, responsibility and power, minimum qualification etc., being the responsibility of the Selection Committee, it is not the role of the Court to put any fetters on the power of the Selection Committee, while making the selection. However, the Selection Committee will have to give proper justification for choosing the selected candidate. Consequently, the Order dated 14.06.2016, issued by the Registrar of the Mizoram University appointing the respondent Nos. 4 and 5 as Section Officers is hereby set aside. 17. Writ petition is accordingly disposed of.