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2018 DIGILAW 278 (GAU)

LALZAWMLIANA v. STATE OF MIZORAM

2018-02-14

NELSON SAILO

body2018
JUDGMENT : N. Sailo, J. Heard Mr. Lalremtluanga, the learned counsel for the writ petitioners. Also heard Mr. A.K. Rokhum, the learned Addl. Advocate General appearing for the respondent Nos. 4 and 5. Mr. B. Lalramenga, the learned Standing Counsel, Environment & Forest Department represents the respondent Nos. 1, 2 and 3. 2. The case of the writ petitioners in brief is that they were appointed either as officiating or ad hoc Drivers under the establishment of the respondent No. 1 between the years 1990 to 1992. Subsequently, a Departmental Promotion Committee (DPC) was held on 17.07.1997 and following the recommendation of the DPC, the petitioners were regularized in the post of Drivers w.e.f. 17.07.1997 vide Office Order No. 271/1997 (Annexure-VIII). 3. It is the case of the writ petitioners that regularization of their services in the post of Driver should have been done with effect from the date they were appointed either as officiating or ad hoc Drivers. In this connection, the petitioners submitted their representations as early as on 17.09.2001 before the respondent No. 1 (Annexure-X). The State respondents in the Finance Department vide Notification dated 03.05.1994 (Annexure-VII) notified the creation of 3 (three) Grades for Government Drivers with appropriate pay scale attached to each Grade. According to the Notification, Drivers who have not completed 5 years of service would be placed in the Driver Grade-III Grade while those who have completed 5 years of continuous regular service as Driver Grade-III as on 1.1.1986 and subsequently would be placed in the Driver Grade-II (Non-functional categories). In case of Drivers who have completed 15 years of regular service as on 1.1.1986 or subsequently with effect from the date of entry into regular service would be categorized as Driver Grade-I (Non-functional). 4. A DPC was held on 12.08.2002 to consider Drivers who have completed 5 years of regular service which included the writ petitioners. Accordingly, the DPC recommended the petitioners for promotion to Driver Grade-II on completion of 5 years of regular service as Driver Grade-III. The promotion order was issued vide Office Order No. 232/2002 (Annexure-XV). 5. Be it stated herein that a DPC was held for filling up the post of UDC, LDC, Forester-II, Driver and P.T. Instructor under the Environment & Forest Department at Aizawl, Saiha and Lunglei on 23.08.1993, 25.08.1993 and 27.08.1993 respectively (Annexure-VIA). 6. The promotion order was issued vide Office Order No. 232/2002 (Annexure-XV). 5. Be it stated herein that a DPC was held for filling up the post of UDC, LDC, Forester-II, Driver and P.T. Instructor under the Environment & Forest Department at Aizawl, Saiha and Lunglei on 23.08.1993, 25.08.1993 and 27.08.1993 respectively (Annexure-VIA). 6. In the DPC that was held by the Department at Aizawl, against 4 vacant posts of Drivers to be filled up by way of Direct Recruitment, the DPC considered as many as 21 candidates including the petitioner Nos. 1, 2 and 3. Consequently, the DPC amongst others recommended four persons against the 4 vacant posts of Drivers with petitioner No. 3 at serial No. 3. In addition, 4 other persons including the petitioner Nos. 1 and 2 were kept in a panel list at serial Nos. 4 and 3 respectively for future vacancy. The DPC Minutes is undated and annexed as Annexure-VI to the writ petition. Pursuant to the representation submitted by the petitioners, the respondent No. 2 vide his communication dated 31.05.2002 (Annexure-XIV) wrote to the respondent No. 3 informing him that the Department had committed a mistake by omitting the petitioners who were officiating Drivers when DPC was held on 28.08.1993 (23.08.1983). However, the omission was brought to the notice of the subsequent DPC held on 17.07.1997 with a request that the representation of the petitioners being genuine the same may be considered favourably. Pursuant to the communication, the Deputy Secretary to the Government of Mizoram, Department of Personnel & Administrative Reform (GSW) (DP&AR(GSW)) vide I.D. No. GSW.12/2010/1859 dated 6.10.2010 (Annexure-XVI) informed the respondent No. 1 to consider holding of a review DPC if the names of the petitioners had been omitted in the DPC held on 28.08.1993(23.08.1983). But despite the advice, no review DPC was held and the petitioners on their part submitted representation to the respondent No. 1 on 18.04.2011 (Annexure-17) for considering regularization of their officiating period of service and to conduct a review DPC as was advised by the DP&AR(GSW). 7. The representation of the petitioners was thereafter also given a response by the Deputy Director (Administration) under the establishment of the respondent No. 1 vide communication dated 26.04.2013 (Annexure-XX). 7. The representation of the petitioners was thereafter also given a response by the Deputy Director (Administration) under the establishment of the respondent No. 1 vide communication dated 26.04.2013 (Annexure-XX). By the said communication, the petitioners were informed that the DP&AR(GSW) vide I.D. No. GSW.12/2013/3167 dated 19.03.2013 informed the Department that the proposal for counting of officiating service in respect of 3 Drivers which included the petitioner Nos.1, 2 and 4 was examined but their request could be acceded to since there is no provision for counting of officiating service for upgradation to higher grade. The petitioners thereafter being aggrieved filed WP(C) No. 139/2013 before this Court which however was withdrawn with liberty to file afresh vide Order dated 31.03.2016 (Annexure-XXX). After such withdrawal, the petitioners have now filed the present writ petition. 8. Appearing for the writ petitioners, the learned counsel Mr. Lalremtluanga submits that there is no reason as to why the appointment of the petitioners on officiating or ad hoc basis should be counted to reckoning their length of service in the post of Driver upon their regularization pursuant to the DPC recommendation dated 17.07.1997. He submits that the State respondents in fact in respect of the Health & Family Welfare Department and the Urban Development & Poverty Alleviation Department had permitted the officiating Drivers in the said Departments to count their officiating period as regular service in the post of Driver. As a result, the length of service rendered on officiating basis have been reckoned for promotion to the next higher grade of Driver. Therefore, the action of the State respondents in permitting the petitioners to count their officiating period for regular service in the post of Driver is highly unjust and arbitrary. 9. Mr. Lalremtluanga, the learned counsel further submits that when the petitioners were appointed either on officiating or ad hoc basis as Driver in the Department, there was clearly existing vacancies in the Department. In this connection, he refers to the communication dated 19.02.2002(Annexure-XIII) written by the respondent No. 2 to the respondent No.3 requesting the regularization of the officiating period of service rendered by the petitioners. In this connection, he refers to the communication dated 19.02.2002(Annexure-XIII) written by the respondent No. 2 to the respondent No.3 requesting the regularization of the officiating period of service rendered by the petitioners. He submits that the vacancy position against which the petitioners have been appointed on officiating or ad hoc basis having been clearly indicated that there is no reason as to why their services rendered on officiating basis should be counted as regular service in the post of Driver and thereafter be reckoned for promotion to the next higher grade. 10. Mr. Lalremtluanga, the learned counsel submits that if an appointment either on officiating or ad hoc basis is followed by the regular appointment, the period rendered on officiating or ad hoc basis prior to such regularization should be counted for all purposes including seniority. The same having been done in the case of the petitioners, the petitioners, therefore, have challenged the Office Order dated 23.12.1997 in so far as their regularization has been allowed only w.e.f. 17.07.1997 (the date of the DPC). The petitioners have also challenged the communication of the Under Secretary to the Government of Mizoram, DP&AR (GSW) conveyed to the Department of Environment & Forest vide I.D. No. GSW.12/2013/3167 dated 19.03.2013 (Annexure-XVIII) which was thereafter conveyed to the petitioners on 26.04.2013. 11. Mr. Lalremtluanga, in support of his submission has relied upon the following judicial pronouncements (i) Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and others, (1990) 2 SCC 715 , (ii) Dipak Saha v. State of Tripura & Others, WP(C) Nos. 139 and 324 of 2012 decided on 14.12.2015, (iii) Lalthansangi v. State of Mizoram and Others, 2016 (1) GLT 585 and (iv) G.P. Doval and others v. Chief Secretary, Government of U.P. and others, (1984) 4 SCC 329 . 12. Mr. B. Lalramenga, appearing for the Environment & Forest Department at the outset submits that the writ petition suffers from delay and laches inasmuch as the petitioners despite having been regularized in service way back in 23.12.1997 have approached this Court only in the year 2013 and, therefore, the writ petition should be dismissed on this ground alone. On merit, he submits that from the DPC that was held on 23.08.1993, it can be seen that the case of the petitioner Nos. 2 and 3 was indeed considered. On merit, he submits that from the DPC that was held on 23.08.1993, it can be seen that the case of the petitioner Nos. 2 and 3 was indeed considered. In fact, the petitioner No. 3 was recommended for appointment to the post of Driver against the 4 vacancies that was considered by the DPC. In case of the petitioner Nos. 1 & 2, they were kept in the panel list for future vacancies. He, therefore, submits that it is the case that the petitioners apart from the petitioner No. 4 were considered by the DPC held on 23.08.1993. He submits that the subsequent DPC held on 17.07.1997 duly considered the case of the petitioners and, therefore, recommended them for regularization. He further submits that the Department concerned duly referred the matter to the DP & AR (GSW) to consider the counting of their services rendered on officiating or ad hoc basis but however, such proposal was turned down by the DP & AR (GSW) and, therefore, in the absence of any provision for regularizing the officiating or ad hoc basis, the petitioners cannot have a claim for regularizing the period of officiating or ad hoc service prior to their regularization. He further submits that as per the Recruitment Rules formulated by the State respondents i.e., the Mizoram Drivers Recruitment Rules, 2009 (Rules of 2009), there are 3 (three) grades of drivers. The entry grade is Driver Grade-III which is to be filled up 75% by direct recruitment and 25% by promotion by selection method from amongst Handyman who have rendered 5 years of service. Upon completion of 5 (five) years of regular service as Driver Grade-III, one would be eligible to be promoted to Driver Grade-II by selection method. Likewise, upon completion of 10 years as Driver Grade-II, one will be eligible to be promoted to Driver Grade-I. Therefore, going by the Rules of 2009, the petitioners having 5 (five) years of regular service as and when the DPC was held on 17.07.1997 have been rightly placed in the entry grade of driver i.e., Driver Grade-III. In fact, upon completion of 5 (five) years of their service as Driver Grade-III, the petitioners were duly considered by the DPC held on 12.08.2002 and they were promoted to Driver Grade-II. 13. Mr. In fact, upon completion of 5 (five) years of their service as Driver Grade-III, the petitioners were duly considered by the DPC held on 12.08.2002 and they were promoted to Driver Grade-II. 13. Mr. B. Lalramenga, in support of his submission places his reliance upon the decision of the Apex Court rendered in the case of Suraj Prakash Gupta and Others v. State of Jammu & Kashmir and Others, (2000) 7 SCC 561 . Referring to the said Judgment, Mr. B. Lalramenga submits that ad hoc or stopgap appointees upon being regularized cannot claim the benefits of their past service prior to their regularization inasmuch as they were born in the service. He submits that seniority cannot be claimed from a date when one is born in the service. Likewise, the petitioners entered into the regular service only w.e.f 17.07.1997 and, therefore, there is no question of counting the period of their officiating or ad hoc service rendered since the year 1990 or 1992. He thus submits that the grievances of the writ petitioners being without any substance, the writ petition should be dismissed. 14. Mr. A.K. Rokhum, learned Addl. Advocate General appearing for the respondent Nos. 6 & 7 adopting the arguments of Mr. B. Lalramenga submits that the petitioners cannot claim the counting of their officiating or ad hoc service prior to their regularization on 17.07.1997 inasmuch as their appointments was only on a stopgap basis and temporary in nature. He submits that all other benefits besides counting of the period of officiating service have been allowed them to like service increment for leave and pension benefits but for seniority. He submits that the respondents concerned have committed any illegality in allowing the petitioners to count their officiating period of service since counting of officiating or ad hoc period is impermissible as held by the Apex Court in the case of State of Tamil Nadu and Another v. E. Paripoornam and Others, 1992 Supp (1) SCC 420. By referring to the said decision, Mr. A.K. Rokhum, the learned Addl. Advocate General submits that it is open for the petitioners to claim their period of service rendered on officiating or ad hoc basis upon regularization for determination of seniority in the post of Driver in absence of any such rule in this regard. By referring to the said decision, Mr. A.K. Rokhum, the learned Addl. Advocate General submits that it is open for the petitioners to claim their period of service rendered on officiating or ad hoc basis upon regularization for determination of seniority in the post of Driver in absence of any such rule in this regard. The services rendered on officiating or ad hoc basis can be counted only for earning increment, leave and pensionary benefits and for seniority. 15. In the case of E. Paripoornam and Others (Supra), the Apex Court has held that the respondents therein who were writ petitioners before the High Court were temporarily appointed and otherwise than in accordance with the rules, they were later selected alongwith others for direct recruitment by the Public Service Commission. They were entitled to count their temporary service for seniority since their appointments was a stopgap appointment, emergency and a fortuitous arrangement. Therefore, their case cannot be an exception since regularization was only for the limited purpose. 16. Mr. A.K. Rokhum, learned Addl. Advocate General, therefore, submits that since the petitioners were only appointed on temporary or officiating basis as a stopgap arrangement, they cannot claim the period of service rendered on officiating or ad hoc basis for the purpose of seniority in the post of Driver. 17. Mr. A.K. Rokhum, learned Addl. Advocate General further refers to the affidavit-in-opposition filed by the State respondents on 11.10.2017, wherein it has been stated that since the officiating service of the petitioners are regular service, their services on officiating capacity cannot be counted for promotion to the higher grade. Reliance has also been placed by the State respondents to the Office Memorandum dated 08.09.2009, whereby DP&AR (GSW) upon noticing that there were many instances wherein officiating promotion under Regulation 4 (c) of the MPSC (Limitation of Functions) Regulations, 1994 or otherwise had been regularized with retrospective effect even prior to the date of recommendation of the DPC/MPSC. Therefore, the Office Memorandum was issued to reiterate that regular promotion are to be made only with prospective effect and retrospectively in terms of the existing DPC guidelines that was issued earlier vide Office Memoradum dated 24.01.2005. Therefore, the Office Memorandum was issued to reiterate that regular promotion are to be made only with prospective effect and retrospectively in terms of the existing DPC guidelines that was issued earlier vide Office Memoradum dated 24.01.2005. He submits that the ratio of officiating promotion and the manner in which the effective date is to be reckoned as provided in the Office Memorandum can be applied to the case of the petitioners with regard to their claim for regularization of their officiating appointments. He, therefore, submits that the petitioners have been given all the benefits as permissible including service increment, leave and pension except seniority. Therefore, there can be no legitimate grievance under the facts and circumstances and the writ petition being without merit should be dismissed. 18. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record. 19. The point to be decided is as to whether the services rendered by the petitioners either on officiating or ad hoc basis can be counted towards seniority in service in the post of Driver and as to whether the delay in approaching this Court is futile and that the writ petition should be dismissed on this ground alone. 20. For convenience, the second issue is being taken up before proceeding with the first issue. It may be noticed that the petitioners, except the respondent No. 4 were considered by the DPC which was held on 23.08.1993 against the 4 (four) vacant post of Drivers under the Environment & Forest Department at Aizawl. The DPC recommended petitioner No. 3 for appointment to the post of Driver while placing the petitioner Nos. 1 and 2 in the panel list. However, the respondents have acted upon the recommendation of the DPC at least in so far as the petitioners are concerned and it was only on 17.07.1997 that they were considered by a duly constituted DPC for regularization. Accordingly, they were regularized with effect from the date of the DPC i.e. 17.07.1997 and they were allowed to count their previous service towards increment, leave and pension benefits only. 21. The petitioner No. 2 thereafter on 17.09.2001 submitted a representation to the respondent No. 1 seeking regularization of his service with effect from the date he was appointed to the post of Driver on officiating basis. 21. The petitioner No. 2 thereafter on 17.09.2001 submitted a representation to the respondent No. 1 seeking regularization of his service with effect from the date he was appointed to the post of Driver on officiating basis. Similar representation was made by the petitioner No. 3 on the same date. Pursuant to their representations, the respondent No. 2 forwarded the representations to the Under Secretary to the Government of Mizoram, Environment & Forest Department. Details of their appointment was accordingly forwarded in the process vide communication dated 19.02.2002 (Annexure-XIII). Although the petitioners were promoted to the post of Driver Grade-II vide Office Order dated 26.09.2002, the issue regarding the counting of the previous service rendered on officiating or ad hoc basis remain unconsidered. The Deputy Secretary to the Government of Mizoram, DP&AR (GSW) vide his I.D. No. GSW.12/2010/1859 dated 6.10.2010 (Annexure-XVI) having regard to the non-consideration of the petitioners in the DPC held on 28.08.1993 (23.08.1993) advised the Department to consider holding a review DPC. However, despite such advice and representations submitted by the petitioners, no review DPC was held and it was only vide I.D. No. GSW.12/2013/3167 dated 19.03.2013 that the request for counting the past service rendered on officiating/ad hoc basis was turned down by the DP&AR (GSW) and was conveyed to the petitioners. The writ petitioners thereafter approached this Court by filing a writ petition in the year 2013 which however was withdrawn with liberty to file afresh on 31.03.2016 and, therefore, under such circumstances, I am of the considered opinion that the writ petition should be rejected on the ground of delay. 22. As regard the second issue, it may be noticed that vide the communication dated 19.02.2002 (Annexure-XIII), the respondent No. 2 in his communication to the respondent No. 3 clearly indicated the vacancy position against which the petitioners came to be appointed on officiating and ad hoc basis. The petitioners therefore were all appointed against such vacancies till they were regularized w.e.f. 17.07.1997 vide Order dated 23.12.1997. Although their appointments do indicate that their appointments on officiating or ad hoc basis was preceded by a selection, the petitioners were appointed against available vacancies and since then they have been continuing as such uninterruptedly until they were regularized w.e.f. 17.07.1997 on the recommendation of a duly constituted DPC. Although their appointments do indicate that their appointments on officiating or ad hoc basis was preceded by a selection, the petitioners were appointed against available vacancies and since then they have been continuing as such uninterruptedly until they were regularized w.e.f. 17.07.1997 on the recommendation of a duly constituted DPC. The Apex Court in the case of Direct Recruit Class II Engineering Officers' Association (Supra) has held that if the initial appointment is made by following the procedures laid down by the Rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the Rules, the period of officiating service will be counted. 23. The said decision has been relied upon by the Tripura High Court in the case of Dipak Saha (Supra) and the relief of counting officiating service was granted to the petitioners. It may also be noticed that the respondents Government in the Departments of Health & Family Welfare as well as the Urban Development & Poverty Alleviation has given the Drivers concerned in the Department the benefit of counting the period of their officiating service for the purpose of seniority and, therefore, it can be seen that there is no consistent procedure adopted. The Office Memoradum dated 08.09.2009 (Annexure-A of the affidavit-in-opposition of the State respondents) pertains to officiating promotion. However, the instant case is with regard to counting of past service rendered on officiating or ad hoc basis and, therefore, the Office Memorandum appears to be relevant for the purpose of the instant controversy. As regard the citation relied upon by Mr. B. Lalramenga i.e. Suraj Prakash & Ors (Supra), it can be seen that in that case the matter was regarding the quota for direct recruitment and promotees. The promotees occupied the post in question in excess by occupying the direct recruitment quota. It is in that context that the Apex Court has held that the seniority of direct recruit is to be counted from the date of appointment. As can be seen, there is no dispute as regard quota in the present case and therefore, the said decision would be relevant. With regard to the case of E. Paripoornam and Others (Supra) as relied upon by the learned Addl. As can be seen, there is no dispute as regard quota in the present case and therefore, the said decision would be relevant. With regard to the case of E. Paripoornam and Others (Supra) as relied upon by the learned Addl. Advocate General, it may be noticed that there was a particular provision under the Service Rules i.e. Rule 23 of the Tamil Nadu State and Subordinate Services Rules, 1955 which provided that on commencement of probating of person appointed temporarily, the appointee shall be eligible to draw increment in the time scale of pay applicable to him from the date of commencement of his probation. In the present case as may be noted, there are no such specific provisions or rules which provides for making temporary appointments and, therefore, in view of the Apex Court decision in Direct Recruit Class II Engineering Officers' Association (Supra), the decision relied upon by the learned Addl. Advocate General is found to be applicable as well. 24. Having opined that the petitioners would be entitled to count their services rendered on officiating and ad hoc basis, dwelling upon the remaining decisions refer to by the petitioners is found unnecessary. 25. In the result, the writ petition is disposed of with the direction to the respondents to give the petitioners the benefits of counting the services rendered by them on officiating and ad hoc basis prior to their regularization on 17.07.1997 for seniority and for grade promotion. Consequently, the impugned communication of the DP&AR (GSW) vide I.D. No. GSW.12/2013/3167 dated 19.03.2013 (Annexure-XVIII) is set aside and the order of regularization dated 23.12.1997 (Annexure-VIII) in so far as denial of seniority to the petitioners concerned also stands interfered with. 26. The writ petition stands allowed. No cost.