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2018 DIGILAW 378 (GAU)

Lalthangkimi v. State of Mizoram

2018-03-01

SONGKHUPCHUNG SERTO

body2018
JUDGMENT & ORDER : 1. This is a writ petition filed by 107 Health Workers in the Health & Family Welfare Department, Govt. of Mizoram praying for issuance of appropriate writ or direction or order directing the respondents to recall the approval order of Department of Personnel & Administrative Reforms dated 17.12.2015 approving the proposal of the Health & Family Welfare Department to fill up 61 posts of Health Supervisor, lying vacant through promotion, 19 number of posts and through limited departmental examination, 42 posts and also to direct the respondents to promote the petitioners to the posts of Health Supervisor as per the Recruitment Rules, 2011 under the Health & Family Welfare Department. 2. Heard Mrs. Dinari T. Azyu, learned counsel for the petitioners. Also heard Mrs. Linda L. Fambawl, learned Govt. Advocate for the State respondents. 3. The issue to be decided in the present case is as to whether the break-up in the percentage of post to be filled up through promotion and limited departmental examination from Health Worker as given in the Rules is to be read as against the total sanctioned post or the vacancy that arises from time to time. 4. Before the 2011 Rules came into force, the service condition of the Health Supervisor under Health & Family Welfare Department was governed by 1987 Rules and the Amended Rules of 2006. Admittedly, the two Rules provided for filling up the post of Health Supervisor, 100% by promotion. However, in the Rules of 2011, which holds the field today, it has been given as 75% of posts by promotion from Health Worker and 25% of posts by limited departmental examination from Health Worker. In order to fill up the vacancies of 61 posts of Health Supervisor, the Health & Family Welfare Department sought for approval of the Department of Personnel & Administrative Reforms (ARW), Govt. of Mizoram as per the following break-up; through promotion 19 posts and 42 posts through limited departmental examination. As stated above, the DP&AR (ARW), Govt. of Mizoram approved the proposal by the impugned approval note. Being aggrieved, the petitioners have approached this Court by filing the present Writ petition, challenging the same. 5. The case of the petitioners submitted by Mrs. As stated above, the DP&AR (ARW), Govt. of Mizoram approved the proposal by the impugned approval note. Being aggrieved, the petitioners have approached this Court by filing the present Writ petition, challenging the same. 5. The case of the petitioners submitted by Mrs. Dinari T. Azyu, learned counsel for the State respondents is that if the vacancies in the post of Health Supervisor are to be filled up as per the proposal of the Health & Family Welfare Department and approved by the DP&AR (ARW), so many of the petitioners would be deprived of their promotion/opportunity since it would mean taking into account the post already filled up as per the earlier Rules wherein, the post of Health Supervisor was filled up through 100% promotion. 6. The learned counsel submitted that law has to be prospective and it should be interpreted that it has all the prospective effect. It is also submitted by the learned counsel that in a similar case of the same department and same post, the Single Bench of this Court in WP (C) No. 130/2014 vide Judgment & Order dated 26.08.2015 had held the same view and directed the State respondents to fill up the vacancies in existence at the time in the post of Health Supervisor in the manner as submitted in this case and thereafter, the Government of Mizoram had given promotion the petitioners in the said writ petition. Therefore, this case is a covered case. 7. Mrs. Dinari T. Azyu, learned counsel also submitted that in a similar facts and circumstances, the Honble Supreme Court in the case of Saroj Kumari & Others v. Kiran Paruthi & Others, reported in 2008 17 SCC 663 had upheld the decision of the High Court, which had held the same interpretation. The Judgment cited by the learned counsel is very short, therefore the whole judgment is reproduce is below: "1. The dispute in the present appeal relates to promotion to the post of Child Development and Project Officer (Female). The channel of promotion is from the post of supervisors. The appellant and the private respondents had been appointed as supervisors in the department sometime in 1980. Initially there was no provision for promotion of the supervisors to the post of Child Development and Project Officer (Female). The channel of promotion is from the post of supervisors. The appellant and the private respondents had been appointed as supervisors in the department sometime in 1980. Initially there was no provision for promotion of the supervisors to the post of Child Development and Project Officer (Female). For the first time in 1984, the Rules were amended and source of recruitment to the post of Child Development and Project Officer (Female) was provided 50% by promotion from amongst the graduate supervisors and the remaining 50% by direct recruitment. There was also requirement of seven years experience then. 2. So far as matriculate supervisors are concerned, there was no provision made for their promotion to the post of Child Development and Project Officer and the same position continued even in 1987, when once again the Rules were amended but the only change made was that the experience of seven years was reduced to five years, with which we are not concerned in this case. Then comes the amendment of 1997. According to this amendment, the post of Child Development and Project Officer (Female) was to be filled up, as provided earlier, 50% by direct recruitment and 50% by promotion, but out of that 50% promotion posts, 90% were to be filled up from amongst the graduate supervisors and 10% from amongst matriculate supervisors, that is to say, 10% of the promotee quota was for the first time earmarked for matriculate supervisors. Before 1997, obviously there existed no such provision nor had the matriculate supervisors any such right to be promoted against the posts whichever may have been filled prior to 1997. After the amendment of 1997, undisputedly, 9 posts of Child Development and Project Officer were created. As against these newly created 9 posts, 5 posts were to be filled up by promotion of supervisors and the remaining 4 posts by direct recruitment. 3. All the 5 newly created posts earmarked for promotion were filled up from amongst the matriculate supervisors which gave cause of grievance to the graduate supervisors, according to whom only 10% of the 5 promotion posts were liable to be given to the matriculate supervisors, that is to say, at best, 1 post as against 5 posts was available for promotion from amongst matriculate supervisors. This contention has been accepted by the High Court and we feel rightly. 4. This contention has been accepted by the High Court and we feel rightly. 4. According to the learned counsel for the appellants, since the number of graduate promotees from 1984 to 1997 is 56, or may be more, the promotion quota for matriculate supervisors should be calculated keeping in mind the vacancies filled up since 1984. We find no force in this submission made on behalf of the appellants. As noted earlier, before 1997, matriculate supervisors had no right to be considered for promotion to the post of Child Development and Project Officer (Female). That right was conferred upon them only by amendment in the 1997 Rules. Therefore, the matriculate supervisors can lay their claim only against the promotions which are to be made against the promotee quota only after the amendment in 1997 in the Rules. The promotion of matriculate supervisors as against all the 5 posts is rightly held to be not sustainable by the High Court. We find no reason to interfere with the order passed by the High Court. 5. We find no merit in this appeal, it is accordingly dismissed. No costs." 8. Mrs. Linda L. Fambawl, learned Govt. Advocate for the State respondents submitted that the word mentioned in the Rules is Post and not vacancy. Therefore, the Rules have to be read and interpreted with the words that are given in it. Therefore, 75% and 25% given in the Rules has to the percentage of the total sanctioned strength of the cadre of Health Supervisor. As per the above the department had submitted their proposal and the DP&AR (ARW) had approved the same. There is nothing illegal or wrong in it. The learned Govt. Advocate also submitted the Judgment passed in WP (C) No. 130/2014 is under challenged in a Division Bench of this Court. Therefore, it cannot be taken as precedence. She also submitted that the persons who were promoted after the case was disposed by the Single Bench of this Court were due for promotion and not as per the direction given as sought to be projected by the learned counsel for the petitioner. 9. The learned Govt. Advocate also submitted if the petitioners are not satisfied with the Rules of 2011, the petitioners should challenge the same, otherwise the hands of the respondents are tied by the said Rules. 10. 9. The learned Govt. Advocate also submitted if the petitioners are not satisfied with the Rules of 2011, the petitioners should challenge the same, otherwise the hands of the respondents are tied by the said Rules. 10. I have considered the submissions of both the learned counsels for the parties, contents of the Rules referred to and also the Judgments of this Court and the Honble Supreme Court mentioned above. 11. It is settled that in the Rules of 2011, the word post is given, but the difficulty is whether to read it as the total strength of the cadre or the vacancies that arises from time to time. Rules has to be read to give meaning and purpose to the extension of the legislature. In this case, it is an admitted fact that the posts of Health Supervisor were filled up as per the Rules, i.e. Rules of 1987 and the amended Rules of 2006. In both the Rules, it is provided that the post of Health Supervisor is to be filled up, 100% through promotion. Now with the coming of the new Rules, if the percentage of posts to be filled up has to be counted against the total sanctioned posts, it would be quite unreasonable because of 2 reasons; (i) the first reason being that persons who are eligible in future for promotion would be deprived of the chance of being promoted to the post of Health Supervisor. (ii) because it would mean giving retrospective effect to a law. Generally, laws are to be given prospective effect unless it is specifically mentioned in the Rule or Act itself. Therefore, the word post has to be understood or read as vacancy that arises from time to time. 12. Considering the facts and circumstances of the case, I am of the view that the petitioners case find support in the two judgments cited by the learned counsel for the petitioners. In view of the above, I am unable to accept the submission of the learned Govt. Advocate. Therefore, the writ petition is allowed and the respondents are directed to recall the approval accorded to the proposal of Health & Family Welfare Department by the Department of Personnel & Administrative Reforms (ARW) in the Note I.D. No. ARW/HFW-21/2015-2016/D-227 dated 17.12.2015. In view of the above, I am unable to accept the submission of the learned Govt. Advocate. Therefore, the writ petition is allowed and the respondents are directed to recall the approval accorded to the proposal of Health & Family Welfare Department by the Department of Personnel & Administrative Reforms (ARW) in the Note I.D. No. ARW/HFW-21/2015-2016/D-227 dated 17.12.2015. The respondents are also directed to fill up 61 posts of Health Supervisor which existed then but has increased to 84 posts as per the percentage given in the 2011 Rules i.e. 75% by promotion from Health Workers and 25% by limited departmental examination from Health Workers. 13. It has been submitted by the learned counsel for the petitioners that these Health Workers have never been promoted in their service career and some of them are soon to retire. 14. In view of the above submission, which is not objected to by the respondents, the process of promotion should be completed within 3 (three) months from today. A copy of this Judgment & Order be furnished to the learned Govt. Advocate for early communication and their compliance to the State respondents. Writ petition is accordingly disposed of.