Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 402 (GAU)

Vanlalhluna v. State of Mizoram

2018-03-07

SONGKHUPCHUNG SERTO

body2018
JUDGMENT & ORDER : 1. This is a petition praying for issuance of appropriate writ or direction or order directing the respondents to regularize the petitioner to the post of Group Instructor in Industrial Training Institute at Saiha (hereinafter referred to as ITI). 2. I have heard Mr. C. Lalramzauva, learned senior counsel assisted by Ms. Vanlalhriatpuii, learned counsel appearing for the petitioner and also Mr. A.K. Rokhum, learned Addl. Advocate General, Mizoram appearing on behalf of the State respondents. 3. The case of the petitioner in brief is that vide Order No. A. 11013/1/92-DTE (L&E)/Vol-I, dated 02.09.2005, he was appointed as Vice Principal of ITI, Saiha on Contract basis with a fix pay of Rs. 5500/- per month and thereafter, on upgradation of the post of Vice Principal to the post of Principal, he was appointed to the post of Group Instructor vide Government approval conveyed by the Under Secretary to the Government of Mizoram, Labour, Employment & Industrial Training Department, Government of Mizoram to the Director of the same department vide letter No. A.11017/1/2009-L&E, dated 05.09.2011. And soon after his appointment as Group Instructor, he submitted his representation to the Secretary, Labour, Employment and Industrial Training, Government of Mizoram dated 13.07.2012, requesting for regularization in the post of Group Instructor by taking into account his past services as Vice Principal of ITI, Saiha without having to go through Departmental Promotion Committee for the purpose. There was no response from the respondents, however, his contractual employment to the post of Group Instructor was extended from time to time and he is still serving till date. Having served the Government for more than 12 years and yet not regularized, he have no choice but to approach this Court praying for issuance of appropriate writ or direction or order directing the respondents to regularize him to the post he have been serving. 4. Learned counsel for the petitioner submitted that there is a scheme which is known as "The Government of Mizoram Regularization of Contract Employees Scheme, 2008" (hereinafter referred to as Scheme of 2008) for regularizing people appointed on adhoc/contract to Government service which was issued by the Department of Personnel & Administrative Reforms (Administrative Reforms Wing) vide their Notification No. A. 11019/5/2008-P&AR (ARW)/51, dated 10th October, 2008. And according to that scheme, contract employees can be regularized against 20% of the vacant posts reserved for direct recruitment, provided the persons under contract service have been engaged on contract basis for atleast 5 years, and such initial engagement had been done through duly authorized Departmental Promotion Committee (DPC), and if he or she possesses the requirement educational and other qualifications prescribed in the relevant recruitment rules. 5. The learned counsel further submitted that at the moment, there is only one vacant post of Group Instructor as such, the same cannot be reserved for regularization of the petitioner but as per Clause 4 of Rule 4 of the said Scheme of 2008, the Government is empowered to relax such provision. Therefore, this Court may direct the respondents to exercise the power given under the relaxation clause taking into account the facts and circumstances of the case. The learned counsel submitted also that in appropriate case, writ courts may issue directions or orders to appointing authorities to exercise relaxation clause as may provided in the Schemes for regularization of Contract employees who have served for a long time in the post. In support of his submission, learned counsel cited the judgment/order of the Division Bench of this High Court dated 13.10.2015, passed in WP (C) No. 96/2012, Sh. Lalsangzuala Ralte-vs- State of Mizoram & 3 Ors. The relevant portion of the judgment/order is reproduced here below:- "By now, it is settled position of law that the power of relaxation can be invoked to meet the particular hardship even in individual case. In Amrik Singh Vs. Union of India and others reported in (1980) 3 SCC 393 , the Apex Court dealing with the rules relating to relaxation held that such rules cannot be said to be arbitrary. In M. Venkateswarlu and others Vs. Govt. of A.P. and others reported in (1996) 5 SCC 167 , the Apex Court observed that it is settled law that in individual case, the Government can relax the condition of service in appropriate case. The basic grievance of the petitioner is that he has been made to stagnate in his service career because of insistence of the degree qualification. of A.P. and others reported in (1996) 5 SCC 167 , the Apex Court observed that it is settled law that in individual case, the Government can relax the condition of service in appropriate case. The basic grievance of the petitioner is that he has been made to stagnate in his service career because of insistence of the degree qualification. In view of the above, we are of the considered opinion that the Recruitment Rules itself having providing for invoking the power of relaxation in a given case, the respondents should dispassionately consider the case of the petitioner by invoking the power of relaxation as per the provision of the Rule 8 quoted above, and taking into account the stagnation being faced by him. The required exercise in terms of this order shall be carried out and completed as expeditiously as possible, preferably within three months from the date of furnishing the certified copy of this order. The writ petition is disposed of with the above directions and observations. There shall be no order as to costs." 6. In conclusion, the learned counsel for the petitioner submitted that the petitioner has exceeded the age of 46 by now, as such, unless he is regularized in the post of Group Instructor where he has been serving so faithfully for a long time, his chance of getting Government employment elsewhere is no longer there. Therefore, in such peculiar circumstances, to meet the ends of justice, the respondents may be directed to regularize him by exercising the relaxation clause given in the Scheme of 2008. 7. Mr. A.K. Rokhum, learned Addl. Advocate General, Mizoram submitted that there is no sufficient number of post of Group Instructor in the ITI at Saiha from which 20% of post can be curved out for regularization of the petitioner as provided in the Scheme of 2008. Therefore, the petitioner cannot be regularized in the post in which he has been serving. If there were sufficient number of vacant posts, the respondents would not have any objection or problem of regularizing him taking into account the fact that he had completed more than 5 years of service in the same post and he is educationally qualified for the same. 8. The learned Addl. If there were sufficient number of vacant posts, the respondents would not have any objection or problem of regularizing him taking into account the fact that he had completed more than 5 years of service in the same post and he is educationally qualified for the same. 8. The learned Addl. Advocate General also submitted that a contract employee cannot claim as a matter of right for regularization to the post where he or she has been appointed. Therefore, except as provided under the Scheme of 2008, such regularization cannot be rightfully claimed. 9. It is also submitted by the learned Addl. Advocate General that the case cited by the learned counsel for the petitioner is not applicable as the facts and circumstances of the two cases are totally different from each other. 10. Lastly, the learned Addl. Advocate General submitted that the claim of the petitioner for regularization to the post of Group Instructor based on the DPC faced by him for entry to the post of Vice Principal on contract basis is not tenable since the requirements of the two posts are different. 11. Mr. C. Lalramzauva, learned senior counsel for the petitioner in reply submitted that in case the Government or the respondents are willing to hold fresh DPC for regularization of the petitioner, the petitioner would not be averse to the idea of facing such DPC for regularization to the post of Group Instructor. 12. I have gone through the writ petition and the affidavit-in-opposition filed by the respondents along with the documents submitted by both the parties in support of their respective case. I have also considered the submissions of both the learned counsels for the petitioner and the respondents. From the submission of the learned counsel for the petitioner, what has clearly emerged are as follows:- (i) that the petitioner was first appointed on contract basis as Vice Principal in the year 2005 and on the upgradation of the post of Vice Principal to the post of Principal, he was appointed to the post of Group Instructor in the same Institution and the qualification required for Vice Principal and Group Instructor are same and the two posts are equivalent though slightly different in their functioning as the Vice Principal has administrative responsibility. (ii) that there is a scheme adopted by the Government of Mizoram for regularization of contract employees to give them a chance of being regularized in service, by virtue of the length of their service, provided they have the requisite qualification or qualifications. However, the only hitch appears to be is that as per the Scheme of 2008, only 20% of the vacancies are to be reserved for regularization of such contract employees eligible for regularization under the said Scheme and (iii) there is only one post of Group Instructor vacant in the ITI at Saiha, as such, curving out 20% from that is not tenable. 13. From the facts and circumstances stated above, the petitioner has served at the ITI, Saiha under the Government of Mizoram uninterruptedly for more than 12 years. This shows that the service of the petitioner has been utilized as required and, therefore, he has been allowed to continue till date. Further, the petitioner by now has attained the age of 46 years therefore, has well past the eligibility age for recruitment to any Government service. It would be inhuman and unjust to throw a person out from the post in which he has been serving for so long that too at such age. Ours is a welfare state where the Governments paramount duty is to look after the welfare of the people. Therefore, after serving for so long in the Government service and to tell a citizen that he is not entitled for regularization because sufficient post are not available would be not only unreasonable but against the very principles for which a Welfare State stands for. Keeping in view such situations which were expected to arise from time to time, the framers of the scheme of regularization have rightly put the relaxation clause by which appointing authorities are empowered to relax such conditions as and when they found fit. 14. Taking into consideration the overall facts and circumstances of the case, I am of the considered view that the case of the petitioner is also a fit case for exercising the relaxation clause as given in the scheme of 2008 to meet the ends of justice. Therefore, as a one time measure, the respondents are directed to exercise the power given under the relaxation clause and hold a DPC for regularization of the petitioner. Therefore, as a one time measure, the respondents are directed to exercise the power given under the relaxation clause and hold a DPC for regularization of the petitioner. It is made clear that this DPC should be a special DPC wherein only candidates falling in the category of the petitioner are called for interview. The whole exercise of regularization should be completed within a period of 3 (three) months from the date of receipt of a certified copy of this order. 15. With this, the writ petition stands disposed of. No cost.