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2018 DIGILAW 387 (GAU)

Seipuia v. State of Mizoram

2018-03-05

SONGKHUPCHUNG SERTO

body2018
JUDGMENT & ORDER : 1. This is a Review petition filed under Section 114 and Order 47 read with Section 151 of the Code of Civil Procedure, 1908 seeking review of the Judgment & Order dated 31.05.2013, passed by this Court in WP (C) No. 57/2012. 2. Though under the relevant Rules, a Review petition has to be placed before the same Judge, permission was sought from the Honble Chief Justice of this Court to place the matter before any other Judge, sitting at Aizawl Bench. The Hon’ble Chief Justice granted permission to do so vide his Order dated 06.10.2016. Accordingly, the matter has been placed before me for hearing and disposal. 3. A writ petition was filed before this Court being WP (C) No. 57/2012, challenging the seniority list of High School Teachers under the Government of Mizoram, which was notified vide Office Order dated 19.03.2007 on the ground that the seniority of the High School Teachers should have been fixed based on their date of birth. After the parties were heard, the judgment sought to be reviewed was passed and in the said judgment, Government of Mizoram was directed to re-determine the inter-se-seniority of the Teachers of provincialised Schools in accordance to the provisions of the Provincialisation Rules and the criteria adopted by the State Government within a period of 4 (four) months. The operative portions of the judgment i.e., para 18, 19 & 20 are reproduced below: "18. It is true that the inter-se-seniority list was published on 19.3.2007. But petitioner has asserted that no copy of such seniority list was furnished to him and that he became aware of it only in the month of May, 2012. Immediately after he collected a copy of the seniority list, he submitted a representation and then filed the writ petition. The private respondents, despite service of notice, have not come forward to contest the case. Therefore, only on the basis of the statement of the state respondents that a copy of the provisional seniority list was given to all concerned officials, the petitioner cannot be disentitled from maintaining the present challenge. It is also true that challenge to a gradation list should not be entertained after a reasonable period unless sufficient ground can be shown by the party challenging it. It is also true that challenge to a gradation list should not be entertained after a reasonable period unless sufficient ground can be shown by the party challenging it. In the facts and circumstances of the case, I am of the view that petitioner has shown sufficient cause which prevented him from challenging the gradation list earlier. Accordingly, the challenge made to the gradation list is entertained. 19. The stand taken by the state respondents that while fixing the inter-se-seniority of the teachers of the provincialised High Schools, the date of entry into service in the deficit/aided schools p W.P. (C) No. 57 of 2012 Page 17 of 18 provincialisation was taken into consideration is contrary to Rule 7 (b) of the Provincialisation Rules. Petitioners assertion that the schools of the petitioner and the private respondents were provincialised with effect from the same date i.e. 1.12.1991, which is based on the documents on record, has remained uncontroverted. If that be the position, namely the date of entry into Government service is the same, seniority of the teachers is required to be determined on the basis of their respective dates of birth as per criteria adopted by the Government which is in tune with the overall scheme of the Provincialisation Rules. Fixation of inter-se- seniority without conforming to the above requirements has vitiated the inter-se-seniority list dated 19. 03.2007 in so far teachers of provincialised High schools are concerned. 20. That being the position, I am of the considered opinion that the petitioner has made out a case for interference by the Court. Since under the Provincialisation Rules, Director of School Education, Mizoram is the authority to determine the interse-seniority of the teachers of the provincialised schools, the said authority is directed to re-determine the inter-se-seniority of the teachers of the provincialised schools in accordance with the provisions of the Provincialisation Rules and the criteria adopted by the State Government. The said exercise shall be carried out in accordance with law within a period of four months from W.P. (C) No. 57 of 2012 Page 18 of 18 the date of receipt of a certified copy of this order. The said exercise shall be carried out in accordance with law within a period of four months from W.P. (C) No. 57 of 2012 Page 18 of 18 the date of receipt of a certified copy of this order. Since there is no dispute to the seniority position of the teachers of the Government schools which is upto the seniority position 151, the State respondents may proceed with the filling up of the 55 posts of Headmaster of Government High Schools from the said seniority list dated 19.03.2007 from amongst the teachers of the Government Schools, whose seniority position is not disputed." 4. After the above judgment was passed, the Government of Mizoram issued a fresh seniority list vide Office Order No. A.23012/1/10/DTE (EDN), dated 27.06.2014 and in that the date of birth of the Teachers was taken as the determining factor for fixing inter-se-seniority among them. 5. Some of the petitioners in this Review petition, who were private respondents in the said Writ petition and some others have come to this Court seeking for a review of the above stated judgment and at the same time praying for consequential order for rectification of the seniority list, issued by the Government of Mizoram, Directorate of School Education vide Office Order No. A.23012/1/10/DTE (EDN), dated 27.06.2014 in pursuance of the same Judgment and Order. 6. Heard Mr. Victor L. Ralte, learned counsel for the petitioners. Also heard Mr. Samuel Vanlalhriata Chhangte, learned Govt. Advocate for the State respondents. None of the private respondents appeared inspite of the fact that notice were issued and published in the local newspapers. 7. According to Mr. Victor L. Ralte, learned counsel for the petitioners, for the first time the Government of Mizoram made a Rule under Article 309 of the Constitution of India in 1991 namely, the Mizoram Middle Schools & High Schools (Provincialisation) Rules, 1991 and in Rule 7 (b) of the said Rule, it was provided that inter-se-seniority of the teaching staff of provincialised school shall be fixed by taking into account the date of provincialisation of the school, but a new Rule was made in place of that Rules and the same was called Mizoram Middle Schools & High Schools (Provincialisation) Rules, 1994. And in Rule 7 (b) of the said Rule, it was provided that the inter-se-seniority of the teaching staff of the provincialised schools was to be as determined by the Government from time to time. The learned counsel further submitted that the said Rules was amended by the Rules of 2002 namely, the Mizoram Middle Schools & High Schools (Provincialisation) (Amendment) Rules, 2002 and in that Rules, Rule 7 (b) of the earlier Rule was amended as follows: "3. Amendment of Rule 7: (b) For the purpose of fixation of interse-seniority in the services of the teaching and non-teaching staff of the provincialised school shall be counted with effect from the date of provincialisation of the school based on merit drawn by the selection Committee i.e., Mizoram Public Service Commission or Departmental Promotion Committee, as the case may be. In the absence of recommendation of the Selection Committee, the seniority in the past service immediately preceding the provincialisation of the concerned School shall be taken into account as a genuine seniority for the said purpose." The learned counsel submitted that this Rule was not brought to the notice of the Court while passing the judgment sought to be reviewed. Therefore, the Court was of the view that inter-se-seniority of High School Teachers was to be determined based on their date of birth. Accordingly, the new seniority list was published vide order dated 27.06.2014. 8. The learned counsel further submitted that the petitioners are conscious of the fact that some persons have been promoted based on the seniority list, notified vide order dated 27.06.2014, therefore, their prayer is limited only to the extent of re-fixation of seniority for teachers who have not been promoted. The learned counsel also submitted that passing appropriate order directing re-determination of inter-se-seniority of the High School Teachers is necessary as per the existing Rule since a wrong committed cannot be allowed to continue. 9. Mr. Samuel Vanlalhriata Chhangte, learned Govt. Advocate submitted that he has no different opinion in the interpretation of Rule 7 (b) of the Mizoram Middle Schools & High Schools (Provincialisation) (Amendment) Rules 2002 which clearly provides that inter-se-seniority of Teachers of provincialised schools has to be determined based on the date of entering into Government Service immediately prior to the provincialisation of the concerned school. 10. Advocate submitted that he has no different opinion in the interpretation of Rule 7 (b) of the Mizoram Middle Schools & High Schools (Provincialisation) (Amendment) Rules 2002 which clearly provides that inter-se-seniority of Teachers of provincialised schools has to be determined based on the date of entering into Government Service immediately prior to the provincialisation of the concerned school. 10. Considering the submissions of both the learned counsels for the parties, the facts and circumstances and the relevant rules which hold the field in matters regarding determination of inter-se-seniority of provincialised High Schools, I am of the view that inter-se-seniority of provincialised High School Teachers should have been determined as provided under para 3 of the amended Rules, 2002, by which clause (b) of Rule 7 of the earlier Rule of 1994 has been amended. As stated above, the amended Rule has made it unambiguously clear that determination of inter-se-seniority has to be based on the merit list prepared by the DPC, if it was ever constituted and if not, from the date of entry to Government Service immediately preceding the provincialisation of the concerned School. It appears to me that this Rule was not brought to the notice of this Court by the parties when the said judgment sought to be reviewed was passed. 11. In view of the said provision of the Rules of 2002, which is applicable in the case of the petitioners and the private respondents and keeping in view the submissions of the learned counsel for the petitioners and the learned Govt. Advocate Mr. Samuel Vanlalhriata Chhangte, the Judgment & Order dated 31. 05.2013 passed in WP (C) No. 52/2012 stands reviewed to the extent provided in the said Rules. Accordingly, the Government respondents are directed to re-determine and fix inter-se-seniority of the provincialised High Schools under the Government of Mizoram, particularly those who were provincialised vide Order No. I.12016/3/85-DTE (EDS) dated 30.04.1992, issued by the Director of School Education, Mizoram in accordance with the amended Rules of 2002, relevant portion of which is reproduced above. However, it is made clear that the seniority position of the Teachers who have already been promoted to a higher post shall not be disturbed since it would not be fair and proper to do so at this stage. Review petition is accordingly disposed of.