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Gauhati High Court · body

2019 DIGILAW 835 (GAU)

Goverdon Sailo v. State of Mizoram

2019-07-18

NELSON SAILO

body2019
JUDGMENT : Heard, Mr. Lalbiaknunga Hnamte, learned counsel for the writ petitioners as well as Mrs. H. Lalmalsawmi, learned Government Advocate appearing for the State respondents. Also heard Mrs. Dinari T. Azyu, learned counsel appearing for the private respondent Nos. 4 to 15. 2. 7 (seven) writ petitioners have joined hands in filing the present case against the State Government as well as the private respondents. 3. Brief facts of the case is that the petitioners have been appointed to the Junior Grade of the Mizoram Police Service (MPS) by way of promotion. The petitioner No. 1 was promoted on 17.08.2011, while the petitioner Nos. 2 to 7 were promoted on 07.03.2012. The private respondent Nos. 4 to 15 on the other hand are all direct recruits. The respondent Nos. 4, 5 & 6 were appointed on 03.05.2012, while the respondent Nos. 7 to 15 were appointed on 17.01.2013. The dispute between the two rival parties is with regard to fixation of their inter-se-seniority in the Junior Grade of MPS. 4. Mr. Lalbiaknunga Hnamte, the learned counsel submits that the petitioner No. 7 during the pendency of the writ petition has expired and therefore the cause of action subsists only in respect of the petitioner Nos. 1 to 6. The learned counsel submits that a provisional inter-se-seniority of the Junior Grade of MPS was notified vide Office Memorandum dated 22.01.2015 (Annexure-I), wherein the petitioners were placed at serial Nos. 17, 20, 22, 23, 24, 25 & 26 respectively. As for the private respondents, they were placed below the petitioners. The provisional inter-se-seniority list was thereafter, finalized vide Notification dated 11.12.2015 (Annexure-I of the additional affidavit filed by the State respondents on 17.09.2018), wherein the respective position of the petitioners as well as the private respondents as in the provisional inter-se-seniority list was maintained. However, to the surprise of the petitioners, the respondent authorities vide Office Memorandum dated 30.08.2016 (Annexure-III), published yet another provisional inter-se-seniority list of the Junior Grade of the MPS purportedly due to certain representation received from the incumbents concerned. As per the said list, the petitioners were placed at serial Nos. 22, 28, 32, 34, 36, 38 and 39 respectively, while the private respondents were placed at serial Nos. 15 to 17, 19, 21, 23, 25, 27, 29, 31, 33 and 35 respectively. As per the said list, the petitioners were placed at serial Nos. 22, 28, 32, 34, 36, 38 and 39 respectively, while the private respondents were placed at serial Nos. 15 to 17, 19, 21, 23, 25, 27, 29, 31, 33 and 35 respectively. Being aggrieved, the petitioners filed a representation before the Director General of Police requesting the said authority that the inter-se-seniority list, as published on 22.01.2015 be maintained. However, vide Notification dated 17.02.2017 (Annexure-V) a final inter-se-seniority list of the Junior Grade of the MPS was published, whereby the petitioners were placed at serial Nos. 17, 23, 26, 28, 30, 31 and 32 respectively. The private respondents were placed at serial Nos. 11, 12, 13, 15, 16, 18, 20, 22, 24, 25, 27 and 29 respectively. Being highly aggrieved with their placement in the final inter-se-seniority list, the petitioners are before this Court. 5. Mr. Lalbiaknunga Hnamte, learned counsel submits that the petitioner No. 1 was appointed by promotion to the post on 17.08.2011 and the remaining petitioners on 07.03.2012. The private respondents, on the other hand, were appointed on 03.05.2012 and 17.01.2013. He submits that Rule 2 (m) of the Mizoram Police Service Rules, 2008 (Service Rules) defines ‘year’ to mean as completed 12 months. Therefore, as the private respondents were recruited or appointed in a different year and after the petitioners, the petitioners cannot be placed below them in the inter-se-seniority list. He therefore submits that the impugned Notification dated 17.02.2017 cannot be sustained and the same should be set aside. The learned counsel further submits that although the respondent Nos. 4, 5 and 6 were appointed on 03.05.2012 against the vacancy created due to the resignation of the three candidates, who were selected, pursuant to the Advertisement No. 11/2010-2012, since Advertisement No. 1/2012-2013 had already been issued on 13.04.2012 for filling up of 10 posts of the Junior Grade of the MPS, the respondent Nos. 4, 5 and 6 could not have been appointed for the vacancy year of 2010-2011. As such, it is a fit case for this Court to interfere in the matter by setting aside the impugned inter-se-seniority list dated 17.02.2017. 6. Ms. 4, 5 and 6 could not have been appointed for the vacancy year of 2010-2011. As such, it is a fit case for this Court to interfere in the matter by setting aside the impugned inter-se-seniority list dated 17.02.2017. 6. Ms. H. Lalmalsawmi, learned Government Advocate, on the other hand, submits that initially vide the final inter-se-seniority list dated 11.12.2015, the seniority was fixed as per the date of appointment but due to certain complaints received, the same had to be re-examined, more particularly in the light of the Service Rules and the guidelines issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievances & Pension. She submits that as per the Service Rules, more particularly Rule 15 (c), the relative seniority of direct recruits and promotees are to be determine according to the rotation of the vacancies between the two source i.e., promotion and direct recruitment, based on quota of posts reserved and provided that the appointments of both direct and promotees fall within the same vacancy year. She submits that the petitioners were appointed for the vacancy year 2011-2012, including the private respondents except for the respondent Nos. 4, 5 and 6, who were appointed for the vacancy year 2010-2011. As such, in terms of the criteria for fixation of inter-seseniority between direct and promotees as provided by the Service Rules, the final interse- seniority list dated 17.02.2017 came to be published and that too, after giving opportunities to all concerned to file a representation against the provisional inter-seseniority list that was published earlier on 30.08.2016. She therefore submits that the petitioners cannot have any legitimate grievance against the impugned seniority list dated 17.02.2017. 7. Mrs. Dinari T. Azyu, learned counsel appearing for the private respondents supporting the submission of the learned Government Advocate submits that the petitioner Nos. 1 and 6 were in fact recommended for promotion to the Junior Grade of the MPS vide the Under Secretary, Mizoram Public Service Commission (MPSC) letter dated 06.03.2013 and they were only given retrospective promotion against the vacancy year of 2011-2012. She submits that Rule 2 (m) of the Service Rules cannot be construed to mean either as a financial year or a calendar year. All that it provides is that ‘year’ means completed 12 months. She submits that Rule 2 (m) of the Service Rules cannot be construed to mean either as a financial year or a calendar year. All that it provides is that ‘year’ means completed 12 months. The respondent authorities in the Home Department in reply to the information sought through RTI, vide letter dated 12.04.2016 (Annexure-IV of the counter affidavit of the private respondents dated 27.04.2018) clarified that the vacancy year against which, both the petitioners as well as the private respondents were appointed was 2011-2012. As for respondent Nos. 4, 5 and 6, they were appointed against the vacancy year, 2010-2011. 8. The learned counsel further submits that the respondent Nos. 4, 5 and 6 responded to the Advertisement No. 11/2010-2011 published on 01.02.2011 and after participating in the selection process, they were kept in the panel which was valid for 1 year vide the merit list prepared on 16.12.2011. The panel list was made in order of merit and the private respondent Nos. 4, 5 and 6 were placed at serial Nos. 3, 1 and 2 respectively. Subsequently, three candidates amongst the 10 selected candidates resigned from their posts and that is how the private respondent Nos. 4, 5 and 6 came to be appointed and which was very much during the validity of the panel list. Therefore, the private respondents have only been placed in their rightful position vis-àvis the petitioners in the final inter-se-seniority list dated 17.02.2017 and the writ petition thus being without any merit, the same should be dismissed. 9. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 10. The petitioners as can be seen have prayed for the following reliefs in their writ petition :- “In the circumstances, it is most humbly prayed that Your Lordships may graciously be pleased to admit this petition, call for records and issue Rule to the Respondents to show cause as to why writ of certiorari and/or any other appropriate Writ, and/or directions(s) or order(s) of the like nature for protection of rights of the petitioners as guaranteed under the Constitution of India shall not be issued and upon hearing the parties, Your Lordship may be pleased to make the Rule so issued be absolute, to set aside and quashed the notification dated 17.02.2017 via. No. A.23022/1/2014-HMP issued by the respondent No. 1 and also directing the Respondents to upheld the office memorandum dated 22nd January, 2015 which is issued in accordance with Rule 15 (c) of the Mizoram Police Service Rules 2008 and/or to pass any other order as this Hon’ble Court may deem fit and proper in favour of the petitioners. AD INTERIM it is also prayed that your Lordship may be pleased to stay the operation of notification dated 17.2.2017, Via. No. A.23022/1/2014-HMP issued by the respondent No. 1 until final disposal of this instant petition.” 11. From the abstract made above, it can be noticed that the petitioners have prayed for upholding the inter-se-seniority list published vide Office Memorandum dated 22.01.2015, which in fact is a provisional inter-se-seniority list of the Junior Grade of the MPS. The final inter-se-seniority list was published on 11.12.2015 after the provisional inter-se-seniority list dated 22.01.2015 was published. Since the learned counsel for the petitioners submit that while filing the writ petition, the final inter-se-seniority list dated 11.12.2015 was not in their possession and therefore, I am not inclined to dismiss the writ petition on this count and more over, another provisional inter-se-seniority list had been published on 30.08.2016 and thereafter, the impugned final inter-se-seniority list on 17.02.2017 had been published. The point to be considered therefore, is as to whether the petitioners can be said to have any grievance against the impugned final seniority list dated 17.02.2017. 12. Since the Service Rules provide for the manner in which the inter-se-seniority of direct recruits and promotees should be determined at Rule 15 (c), the same may be reproduced below for ready perusal:- “(c) The relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruitment and promotion which shall be based on quotas of posts reserved for direct recruitment and promotion respectively, provided that the appointments of both direct and promotion fall within the same vacancy year.” 13. As can be seen from the above abstract, the relative seniority between direct recruits and promotees is to be determined according to the rotation of vacancies based on the quotas reserved for both the source and provided that the appointments are in the same vacancy year. The petitioners have sought to dispute the vacancy year or the year of recruitment of the respondent Nos. The petitioners have sought to dispute the vacancy year or the year of recruitment of the respondent Nos. 4, 5 and 6 by contending that since advertisement for 10 posts of the Junior Grade of the MPS having already been published vide Advertisement No. 1/2012-2013 on 13.04.2012, they cannot be said to be recruited for the vacancy year 2010-2011. However, a perusal of the affidavit-in-opposition of the respondent Nos. 4 to 15 dated 27.04.2018 at Annexure-II, would go to show that the respondent Nos. 4, 5 and 6 were kept in the panel list, which was valid for a period of one year. Due to the resignation of three of the candidates, who were selected, the respondent Nos. 4, 5 and 6 came to be appointed on 03.05.2012 and against the vacancy year of 2010-2011. Their appointments were within the validity of the panel and as such, the advertisement No. 1/2012-2013 published on 13.04.2012 cannot vitiate their appointment. At the same time, it may be seen that 10 posts of the Junior Grade of the MPS was advertised on 13.04.2012, while the resignation tendered by the three selected candidates was accepted vide Notification dated 24.04.2012. Therefore, the Advertisement dated 13.04.2012 clearly does not cover or include the vacancy caused by resignation. 14. Insofar as the vacancy year of the remaining private respondents and the petitioners are concerned, the same undisputably is 2011-2012. Therefore, having regard to the provision of Rule 15 (c) of Service Rules, it can be very well seen that the inter-se-seniority fixed between the petitioners and the private respondents is in order. 15. Under the facts and circumstances, I do not find any merit in the writ petition and the same is accordingly dismissed. No cost.