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2019 DIGILAW 991 (GAU)

Laltlanliani v. State of Mizoram

2019-09-04

NELSON SAILO

body2019
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. Jonathan L. Sailo, learned counsel for the petitioners and Mrs. Linda L. Fambawl, learned Government Advocate appearing for the respondent Nos. 1 to 4. None appears for the respondent Nos. 5 and 6. 2. Two petitioners have joined hands to file the present writ petition, as their grievances against the said respondents are identical and similar. 3. The case of the petitioners in brief is that the petitioner No. 1 has completed Class-XII, while the petitioner No. 2 is a graduate in Arts. The petitioner No. 1 was appointed as Gangman on Muster Roll basis and he joined his post on 01.06.1999 in the Department of Minor Irrigation, now renamed as Irrigation and Water Resources Department (the Department). The petitioner No. 2 was also appointed as Muster Roll Gangman w.e.f. 01.06.2000 in the same Department. Although both the petitioners were engaged as Gangman, they have been working as Lower Division Clerk (LDC)-cum-Computer Operator from their initial appointment till date. The petitioners also contend that though they were appointed as Gangman but there was never any sanctioned post or recruitment rules for the post of Gangman under the Department from the time of their initial appointment till date. 4. The respondent Nos. 5 and 6 according to the petitioners were also appointed as Gangman under the same Department. The respondent No. 5 was initially engaged as Gangman w.e.f. 01.03.1994, while the respondent No. 6 was engaged as such w.e.f. 01.08.1996 as per the Engagement Card issued to her on 08.10.2002. It also transpires from the Office Order dated 28.08.2000 (Annexure-2), that the respondent No. 6 was allowed to continue working as Gangman, after an artificial break for 1 (one) day after completion of 89 days engagement at a stretch. The same office order shows the petitioner No. 1 to be a LDC-cum-Typist with her name at serial No. 5. 5. In the year 2010, the State respondents circulated a final inter-se-seniority list of Muster Roll employees under the Department, vide a covering letter dated 25.03.2010 (Annexure-3), wherein the names of respondent Nos. 5 and 6 were shown at serial No. 15 and 17 respectively and the two petitioners at serial Nos. 21 and 22 respectively. Both the petitioners as well as the private respondents were shown as Gangman except for respondent No. 6, who was shown to be a Computer Operator. 5 and 6 were shown at serial No. 15 and 17 respectively and the two petitioners at serial Nos. 21 and 22 respectively. Both the petitioners as well as the private respondents were shown as Gangman except for respondent No. 6, who was shown to be a Computer Operator. The respondent Nos. 5 and 6 submitted their applications to the State respondents for changing the nomenclature of their engagement from Gangman to LDC. Consequently, approval was given by the Government in the Minor Irrigation Department vide memo No. A-23021/3/2013-MI dated 10.12.2013, for change of nomenclature of the appointment of the respondent No. 5 from Muster Roll Gangman to LDC. The same was communicated by the Deputy Director (Administration), Minor Irrigation Department, Aizawl to the Executive Engineer, Kolasib Division, Minor Irrigation Department vide letter dated 10.01.2014 (Annexure-4). 6. The Under Secretary to the Government of Mizoram, DP&AR (ARW) vide Office Memorandum dated 18.12.2015 (Annexure-5), published the final inter-se-seniority list of Muster Roll LDCs under the Department whereby, the respondent Nos. 5 and 6 were shown at serial Nos. 1 and 2 respectively. The two respondents having been shown as Muster Roll LDCs, they were regularized under the Regularization of Muster Roll Employees Mizoram Scheme, 2000 (Regularization Scheme) vide Order dated 30.11.2017 (Annexure-7). 7. Mr. Jonathan L. Sailo, learned counsel submits that the petitioners ever since their initial engagement have been functioning as LDC-cum-Typist/Computer Operator and discharging their duties with utmost sincerity and devotion. They both are fully competent and qualified to be appointed as LDCs. In fact the Divisional Agriculture Engineer vide Order dated 12.09.2006, had prepared an order of work distribution amongst technical and ministerial staffs for the smooth functioning of the office, in which the petitioner No. 1 was placed at serial No. VIII to perform the work and duties of Muster Roll LDC. In the same order, the respondent No. 6 was placed at serial No. VI to operate the office computer and was shown as Muster Roll Computer Operator. Likewise, vide office order dated 05.04.2007 (Annexure-9), the petitioner No. 2 was assigned the work of operating computer/typing along with the personal files of the employees mentioned in the said order. 8. In the same order, the respondent No. 6 was placed at serial No. VI to operate the office computer and was shown as Muster Roll Computer Operator. Likewise, vide office order dated 05.04.2007 (Annexure-9), the petitioner No. 2 was assigned the work of operating computer/typing along with the personal files of the employees mentioned in the said order. 8. The petitioners by comparing themselves to the case of the respondent No. 6, whose nomenclature was changed from Gangman to Computer Operator, submitted a joint representation to the respondent No. 4 on 07.04.2016 (Annexure-12) through the Executive Engineer, Minor Irrigation Department, Kolasib Division. The respondent No. 4 after obtaining the comments of the said Executive Engineer submitted the proposal to the Administrative Department, which was then sent to the DP&AR (ARW). However, the DP&AR regretted the proposal and the same was communicated by the Deputy Secretary to the Government of Mizoram, Minor Irrigation Department to the respondent No. 4 vide communication dated 27.09.2016 (Annexure-14). 9. Mr. Jonathan L. Sailo further submits that despite the regret expressed by the DP&AR (ARW), the petitioners still hoping to get their nomenclature converted from Gangman to LDC submitted their representation to the respondent No. 4, through the Executive Engineer concerned. The matter was again taken up between the Administrative Department of Minor Irrigation and the office of the Chief Engineer. The list of the engaged muster roll Gangman under the Department showed that there were as many as 6 of them including the petitioners in all. All the engaged muster roll Gangman including the petitioners themselves submitted their statement of consent for the change in nomenclature of the petitioners from Muster Roll Gangman to Muster Roll LDC. However despite this, as nothing could materialize in favour of the petitioners, the petitioners approached this Court by filing WP (C) No. 132/2017. This Court considering the process undertaken by the State respondents for change of nomenclature disposed the writ petition by directing the State respondents to take a decision on the proposal for change of nomenclature from Muster Roll Gangman to Muster Roll LDC. In terms of the direction of this Court, the State respondents in the DP&AR (ARW) vide their ID No. ARW/I&WR-9/2018-2019/B-1 dated 04.04.2018, declined to change the nomenclature from Muster Roll Gangman to Muster Roll LDC. In terms of the direction of this Court, the State respondents in the DP&AR (ARW) vide their ID No. ARW/I&WR-9/2018-2019/B-1 dated 04.04.2018, declined to change the nomenclature from Muster Roll Gangman to Muster Roll LDC. It was further opined that as the two posts are not equivalent, the Department may identify vacant posts of Group "D" for conversion of all existing Muster Roll Gangman to Group "D" post, since Gangman was a Group "D" post under the Central Government. The learned counsel submits that the petitioners being aggrieved, are again before this Court through this writ petition. 10. Mr. Jonathan L. Sailo, the learned counsel submits that the State respondents in case of the respondent Nos. 5 and 6, allowed change of their nomenclature from Muster Roll Gangman to Muster Roll LDC and therefore, there is no reason as to why the petitioners should not be given similar benefit. In fact denial of such benefit would be clear violation of Article 14 and 16 of the Constitution of India. 11. Mrs. Linda L. Fambawl, the learned Government Advocate by referring to the affidavit-in-opposition filed by the respondent Nos. 1 to 4 on 10.10.2018, submits that the respondent Nos. 5 and 6 were in fact initially appointed as Muster Roll LDCs w.e.f. 01.03.1994 and 19.08.1996 respectively. It was only due to clerical mistake that they were shown as Muster Roll Gangman and Muster Roll Computer Operator in the final inter-se-seniority list issued on 19.03.2010. As soon as the mistake was detected, the same was rectified by showing their designation as Muster Roll LDCs. He further submits that the question of the petitioners being qualified for the post of LDC is irrelevant, inasmuch as, they were appointed as Muster Roll Gangman and not as Muster Roll LDCs. In fact, there are large numbers of employees in the Department, who are over qualified. There are instances of graduates applying for Group "D" Muster Roll Typist. She also submits that the State Government at one point of time did consider the possibility of converting the engagement of the two petitioners from Gangman to LDC and the four other Gangman also on Muster Roll basis to Group "D" post. However, as the petitioners claimed seniority from their initial engagement once they get converted to Muster Roll LDC, the attempt did not materialize, as there was objection from the already existing Muster Roll LDCs. However, as the petitioners claimed seniority from their initial engagement once they get converted to Muster Roll LDC, the attempt did not materialize, as there was objection from the already existing Muster Roll LDCs. Under the circumstance, she submits that the petitioners cannot be re- designated as Muster Roll LDCs and at best, they may be considered for adjustment against any Group "D" post that may be available in the Department, since the post of Gangman is categorized as Group "D" post under the Central Government. 12. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 13. As may be noticed, the issue to be decided is as to whether the petitioners can be said to have a right to be considered for conversion from the post to which they were appointed i.e. Gangman to the post of LDC change in the nomenclature of the post to which they were engaged i.e. Muster Roll Gangman to Muster Roll LDC. Further, on conversion whether they will be entitled to count their service from the date of their initial engagement as Muster Roll Gangman. The petitioners have made their claim as the respondent Nos. 5 and 6, who were also initially engaged as Gangman were given the benefit of change of their nomenclature to Muster Roll LDC and thereafter, regularized in service in terms of the Regularization Scheme. A perusal of the engagement card dated 08.10.2002, annexed to the writ petition as Annexure-1 would go to show that the respondent No. 6 was engaged as Gangman since 01.08.1996. Similarly, Office Order dated 28.08.2000 issued by the Sub-Divisional Agricultural Engineer, Kolasib Minor Irrigation Sub-Division, Kolasib annexed as Annexure-2 to the writ petition also shows that the designation of the respondent No. 6 is Gangman. The seniority list of Muster Roll employees of the Department published by the office of the Additional Chief Engineer of the Department on 25.03.2010, which is annexed as Annexure-3 to the writ petition also shows the respondent No. 5, who is at serial No. 15 of the seniority list to be a Gangman. The State respondents in their affidavit-in-opposition have sought to explain this as a clerical mistake and maintain that the same was rectified after it was brought to the notice of the DP&AR (ARW). The State respondents in their affidavit-in-opposition have sought to explain this as a clerical mistake and maintain that the same was rectified after it was brought to the notice of the DP&AR (ARW). However, despite such stand, there are no documents on record showing the rectification. 14. Be it stated herein that during the course of hearing of the case, the learned Government Advocate was asked to produce initial appointment of the respondent Nos. 5 and 6, so as to appreciate the nature of their appointment. However, despite several opportunities given, the learned Government Advocate could not produce the same. The learned counsel for the petitioner, on the other hand, has produced a communication of the Deputy Secretary to the Government of Mizoram, Minor Irrigation Department to the Chief Engineer of the same Department vide Memo No. A-23021/3/2013-MI dated 10.12.2013 whereby, the change of nomenclature from the post of Gangman to LDC in respect of the respondent No. 5, was approved by the DP&AR (ARW). The contents of the said communication may be reproduced below for ready perusal:- "No. A. 23021/3/2013-MI, dated Aizawl, the 10th December, 2013 To, The Chief Engineer, Minor Irrigation Department, Aizawl, Mizoram. Subject: Change of nomenclature of Gangman to LDC. Reference: Your No. A. 12031/1/2013-CE (MI) dated 13.09.2013. Sir, With reference to the above, I am directed to convey Government approval against change of nomenclature of the post of Gangman to LDC in respect of Pi Vanrammawii vide DP&AR(ARW) I.D. No. ARW/MI/2013-2014/Esst.34 dated 27.11.2013. Further, you are informed to expedite submission of acceptance of the existing Group "D" employees towards inclusion of Gangman and Pump Operators in the Group "D" category for the purpose of probable regularization in the future. Dated: 10.12.2013 Sd/- (R. ROHNUNA) Deputy Secretary to the Govt. of Mizoram. Minor Irrigation Department." 15. From the above abstract, it may be seen that the respondent No. 5 was given the change of nomenclature from Gangman to LDC by the DP&AR (ARW). It is further noticed that the said communication dated 10.12.2013 has clearly been mentioned in the communication dated 10.01.2014 written by the Deputy Director, Administrative of the Department to the Executive Engineer of the same Department, which is annexed as Annexure-4 to the writ petition. 16. It is further noticed that the said communication dated 10.12.2013 has clearly been mentioned in the communication dated 10.01.2014 written by the Deputy Director, Administrative of the Department to the Executive Engineer of the same Department, which is annexed as Annexure-4 to the writ petition. 16. Insofar as the initial appointment of the respondent No. 6 as Muster Roll Gangman, the State respondents have failed to produce any document to show that she was appointed as Muster Roll LDCs and not Muster Roll Gangman. Therefore, the document annexed by the petitioner at Annexure-1, 2 and 3 will have to be accepted. 17. The respondent Nos. 1 to 4 in their affidavit-in-opposition have also taken the stand that for reasons unknown, the Department had engaged the petitioners and four others as Gangman on Muster Roll basis under Kolasib Division, though such post do not exist under the Government of Mizoram. They further contend that they have learnt that the post of Gangman is a Group "D" post under the Ministry of Railways and the duty of the Gangman is to find inconsistencies in railway tracks. While such being the position, the undisputed fact is that since their initial engagement, the petitioners have been performing their services, the work of LDC or Computer Operator. 18. Under the circumstance, I am of the considered view that the petitioners have made out a case for them to be considered for conversion from Gangman to LDC on Muster Roll basis. It may also noticed that it is the case of the State respondents that both Gangman and LDC are classified as Muster Roll Skilled-II and therefore, there should not be any impediment in making such conversion as both the posts being classified as skilled-II would be enjoying similar wage/pay. 19. In the result, upon considering the case in its entirety and having taken the view as above, the writ petition is disposed of with a direction to the State respondents to consider the case of the petitioners for their conversion from Muster Roll Gangman to Muster Roll LDC, within a period of 2 (two) months from the date of receipt of a certified copy of this order. While making this direction, this Court has also considered the fact that no dispute is raised that the petitioners are not qualified to be appointed as LDC. While making this direction, this Court has also considered the fact that no dispute is raised that the petitioners are not qualified to be appointed as LDC. In so far as seniority on conversion is concerned, I deem it appropriate that it should be left to the State respondents to device an appropriate method so that the petitioners do not lose the entire period of their service rendered as Muster Roll Gangman and they stand a fair opportunity to be considered for regularization as per the Regularization Scheme. It is ordered accordingly. 20. The impugned communication dated 27.09.2016 (Annexure-14) and the stand of the DP&AR (ARW) is thus interfered with. The communication dated 10.12.2013 produced by the learned counsel for the petitioners shall be kept on record and marked as "X" for identification. 21. Under the given facts and circumstances, there shall be no order as to cost.