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2020 DIGILAW 734 (GAU)

Laldawngliana v. State of Mizoram

2020-10-27

MICHAEL ZOTHANKHUMA

body2020
JUDGMENT : Michael Zothankhuma, J. 1. Heard Mr. Victor L. Ralte, the learned counsel for the petitioners, Ms. Mary L. Khiangte, the learned Government Advocate for the respondent Nos. 1 to 5 and Mr. J.C. Lalnunsanga, the learned counsel appears for the respondent No. 6. 2. The petitioners who are Trained Graduate High School Teachers, are aggrieved with the impugned Notification dated 08.11.2019, by which 76 posts of Headmaster of Government High Schools, which became vacant, subsequent to the coming into force of the Mizoram School Education Department (Group 'A' post) Recruitment Rules, 2016, (hereinafter refer to as the 2016 Rules), is sought to be filled up solely by Limited Departmental Examination (LDE), while as per the 2016 Rules, 50% of the post is to be filled up by promotion from Trained Graduate High School Teachers with not less than 5 years of regular service in the Grade and 50% by LDE from Trained Graduate High School teachers with not less than 5 years of regular service in the Grade. 3. The petitioners' counsel submits that the petitioners have been working as Government High School Teachers for almost 30 years and that the petitioners are now the senior most teachers amongst the Trained Graduate Government High School teachers in the State. He submits that out of 199 regular sanctioned posts of Headmaster in the Government High Schools of the State, 76 posts of Headmaster became vacant after the promulgation of the 2016 Rules, which came into effect on 09.09.2016. He submits that while the State respondents had to fill up the 76 vacant posts as per the 2016 Rules, i.e., 50% by promotion and 50% by way of LDE, the State respondents have taken a decision to fill up all 76 vacant posts by way of LDE. He submits that the decision of the State respondents is de hors the 2016 Rules and the same has to be set aside. In support of his submission, the learned counsel has relied upon the Judgment and Order passed by this Court in the case of Lalthangkimi and Others Vs. State of Mizoram, reported in 2019 (5) GLT 462 and the Judgment and Order dated 27.11.2018, passed in WP(C) No. 51/2018 (Smt. Rotluangi Chawngthu and Another Vs. State of Mizoram & 3 Others). 4. Ms. Mary L. Khiangte, the learned counsel for the respondent Nos. State of Mizoram, reported in 2019 (5) GLT 462 and the Judgment and Order dated 27.11.2018, passed in WP(C) No. 51/2018 (Smt. Rotluangi Chawngthu and Another Vs. State of Mizoram & 3 Others). 4. Ms. Mary L. Khiangte, the learned counsel for the respondent Nos. 1 to 5 submits that filling up of the post of Government High School Headmaster was earlier governed by the Mizoram Education and Human Resource Department (Group 'A' post) Recruitment Rules, 1997, (hereinafter refer to as the 1997 Rules) and the Mizoram Education and Human Resources Development Department (Group 'A' posts) Recruitment (Amendment) Rules, 2002, (hereinafter refer to as 2002 Rules). She submits that as per the old 1997 Rules and 2002 Rules, the method of recruitment to the post of Headmaster was 100% by way of promotion. The 2016 Rules, which repealed the 1997 Rules and 2002 Rules, provides that recruitment to the post of Headmaster would be 50% by promotion and 50% by LDE from Trained Graduate High School teachers. As 76 vacant posts of Government High School Headmaster arose after the coming into force of 2016 Rules and as 122 out of 199 posts of Headmaster had already been filled up by promotion, as per the old 1997 and 2002 Rules, the 76 vacancies had to be filled up only by LDE, so that the number of posts of Headmaster filled up by way of LDE was as per the percentage prescribed in the 2016 Rules. She submits that as the recruitment to the post had earlier all been done by way of promotion, in terms of the old Rules and as at least 99 out of 100 posts were to be filled by way of LDE, the anomaly in the percentage of Headmasters appointed through LDE had to corrected as per the 2016 Rules. 5. The counsel for the respondent Nos. 1 to 5 also submits that there was no infirmity with the decision of the State respondents to fill up the 76 vacancies by way of LDE, as it was in terms of paragraph 3 of the Office Memorandum No. A-12018/50/2019-P&AR(GSW) dated 20.03.2020, issued by the Government of Mizoram, Department of Personnel and Administrative Reforms (GSW). The Government Advocate thus submits that there is no merit in the writ petition and the same should be dismissed. 6. Mr. The Government Advocate thus submits that there is no merit in the writ petition and the same should be dismissed. 6. Mr. J.C. Lalnunsanga, the learned counsel for the respondent No. 6 submits that he has got no comments to make with regard to the above case and that the Mizoram Public Service Commission will only conduct the recruitment process in terms of the Judgment rendered by this Court. 7. I have heard the learned counsels for the parties. 8. The repealed 1997 Rules and the 2002 Rules provided for recruitment to the post of Headmaster by way of 100% promotion. The above two Rules were repealed in terms of Rule 10 of the 2016 Rules, which came into force on 09.09.2016. The 2016 Rules provides the method of recruitment for filling up the regular sanctioned posts of Headmaster in the ratio of 50% by promotion and 50% by Limited Departmental Examination, from Trained Graduate High School Teachers having not less than 5 years service in the grade. 9. Paragraph 3 of the Office Memorandum dated 20.03.2020, which the learned Government Advocate is relying upon to support her case that all 76 posts have to be filled up through LDE, is reproduced below:- "3. Paragraph 7(c) of the OM of even no. dated 07.01.2020 ordered that "vacancies which are left unfilled as on the date of issue of this Office Memorandum but which fell vacant in previous vacancy years shall also be filled up by following the vacancy based roster in case there are more than one methods of recruitment to a post/grade as per the relevant recruitment rules". The above provision has been reviewed and it has been decided that the same shall be withdrawn ab initio and paragraph 7(c) shall be substituted as follows: "Vacancies which are left unfilled as on the date of issue of the Office Memorandum of even number dt. 07.01.2020 including vacancies which fell vacant in previous vacancy years with calculations on the basis of post based roster shall continue to belong to such method of recruitment as assigned to such vacant post(s) on the basis of post based roster in such vacancy year in case there are more than one methods of recruitment to a post/grade as per the relevant recruitment rules". Illustration: For instance, for vacancies falling under direct recruitment quota and limited departmental examination quota for the vacancy year 2018-19 with calculations on the basis of post based roster and which remain unfilled as on 07.01.2020 shall continue to belong to the roster point for direct recruitment and limited departmental examination respectively in such vacancy year and the vacancies shall be filled up accordingly." 10. As per the 2016 Rules, there are 199 regular sanctioned posts of Government High School Headmaster. All the existing incumbents to the post of Headmaster have been recruited to the said post by way of promotion as per the 1997 Rules and the 2002 Rules. The 76 vacant post of Headmaster, which the State respondents are intending to fill up as per the 2016 Rules had become vacant after the 2016 Rules came into force. The provisions of the 2016 Rules having clearly provided the manner in which recruitment has to be made to the vacant sanctioned post of Headmaster, the filling up of the same would have to be done as per the 2016 Rules. The State respondents intention to fill up all the 76 vacancies by way of LDE, is on the ground that 50% of the existing 199 sanctioned post would have to be filled up by promotion and 50% by LDE. As 122 existing incumbents to the post of Headmaster have been promoted to the said post as per the old Rules, the filling up of the 76 vacancies by LDE was justified in terms of the 2016 Rules, as the number of posts already filled up by promotion would still exceed the 50% quota reserved for promotees, even if the 76 posts were filled up through LDE. This understanding of the State respondents is incorrect as the same is not in sync with 2016 Rules. The ultimate end result of a continuous process of fresh recruitment to the post of Headmaster, in terms of the 2016 Rules, would gradually result in all the 199 posts of Headmaster being filled up by 50% promotion and 50% by LDE. The State respondents are however trying to achieve the end result in a flash, without following the quota/percentage provided in the 2016 Rules, wherein vacancies have to be filled up, i.e. 50% by promotion and 50% by LDE. The State respondents are however trying to achieve the end result in a flash, without following the quota/percentage provided in the 2016 Rules, wherein vacancies have to be filled up, i.e. 50% by promotion and 50% by LDE. Just because the post of Headmaster had earlier been filled up only by way of promotion as per the old Rules, does not justify the Government's intention to fill up all the 76 vacant posts of Headmaster by way of LDE, in violation of the 2016 Rules. 11. In the case of Pune Municipal Corporation and Another Vs. Harakchand Misirimal Solanki and Others reported in (2014) 3 SCC 183 , the Apex Court has held that it is a settled proposition of law that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. 12. On a perusal of paragraph 3 of the Office Memorandum dated 20.03.2020, this Court is unable to understand as to how the said paragraph supports the case of the State respondents, inasmuch as, the said paragraph clearly states that vacancies which are left unfulfilled in previous vacancies shall continue to belong to such method of recruitment as assigned to such vacant post on the basis of post based roster as per the relevant recruitment Rules. In this respect, the counsel for the State Government has produced a purported roster for the post of Headmaster showing that 126 posts have been filled up by promotion as per the old recruitment rules and that all the other vacancies from serial No. 127 to 197 were proposed to be filled up by way of LDE in terms of the 2016 Rules. This document that has been produced cannot be said to be a post based roster by any stretch of the imagination. Further, paragraph 3 of the OM dated 20.03.2020 goes to show that all vacancies that have arisen, year to year, subsequent to the 2016 Rules, would have to be filled up in terms of the 2016 Rules, i.e. 50% by promotion and 50% by LDE. Further, paragraph 3 of the OM dated 20.03.2020 goes to show that all vacancies that have arisen, year to year, subsequent to the 2016 Rules, would have to be filled up in terms of the 2016 Rules, i.e. 50% by promotion and 50% by LDE. Even if it is assumed that the OM dated 20.03.2020 allows the State respondents to fill up the 76 posts by way of LDE, as submitted by the counsel for the State respondents, this Court is of the view that the Office Memorandum would be void to the extent it does not conform with the 2016 Rules. In any event, it is settled law that circulars, administrative and executive instructions etc., cannot override statutory rules. One of the many cases, in which the Apex Court has laid down the above law is the case of Dilip Kumar Ghosh and Others Vs. Chairman and Others, reported in (2005) 7 SCC 567 . 13. In the case of Saroj Kumari and Others vs. Kiran Paruthi and Others reported in (2008) 17 SCC 663 , the Apex Court held that the promotion to the 5 vacant posts of Child Development & Project Officer (Female), CDPO(F) in short, from matriculate supervisors had to be done within the 10% quota earmarked for matriculate supervisors, as per the amended Rules of 1997. In the above case, earlier to the amended Rules of 1997, i.e. as per the 1984 Rules, there was no provision for promotion of matriculate supervisors to the post of CDPO(F). In fact, from 1984 to 1997, 50% quota had been fixed for promotion to the post of CDPO(F) by way of promotion from graduate supervisors and the rest 50% of the posts were to be filled up by direct recruitment. Thereafter, as per the amended Rules of 1997, out of the 50% quota reserved for promotion to the post of CDPO(F), 90% was reserved for graduate supervisors and 10% earmarked for matriculate supervisors. Thus, promotion to the post of CDPO(F) from matriculate supervisors was possible only as per the amended Rules of 1997. After the amended Rules of 1997 came into force, 9 posts of CDPO(F) were created. As against these newly created 9 posts, 5 posts were to be filled up by promotion from supervisors and the remaining 4 posts by direct recruitment. After the amended Rules of 1997 came into force, 9 posts of CDPO(F) were created. As against these newly created 9 posts, 5 posts were to be filled up by promotion from supervisors and the remaining 4 posts by direct recruitment. All the 5 newly created posts earmarked for promotion were filled up from amongst matriculate supervisors. The same was challenged on the ground that only 10% of the 5 promotional posts were liable to be filled up by matriculate supervisors and the remaining 4 from graduate supervisors, that is to say, at best, one post as against 5 available posts for promotion for matriculate supervisors. The stand of the State was that since the number of graduate promotees from 1984 to 1997 was 56 or more and keeping in mind that the vacancies filled up since 1984 had been done by promoting only graduate supervisors, the promotion of matriculate supervisors to the 5 newly created posts reserved for promotees would be within the 10% quota earmarked for promotion of matriculate supervisors, out of the over-all 50% quota/promotional posts reserved for supervisors. The said contention of the State Government was not accepted by the High Court and the Apex Court. The Apex Court held that the rights conferred upon matriculate supervisors, to be considered for promotion to the post of CDPO(F), arose only by way of the amended Rules of 1997 and as such, the filling up of all the 5 vacant promotional posts from matriculate supervisors only was not sustainable. Accordingly, promotion to the posts of CDPO(F) was directed to be done as per the ratio/percentage earmarked for graduate and matriculate supervisors. The decision of the Apex Court in the above case supports the petitioners' case, as the decision of the Government to fill up all the 76 vacant posts by LDE is akin to filling up all the 5 promotional posts by matriculate supervisors. In the present case also, the 2016 Rules does not state that the break up of all the regular sanctioned posts would be 50% by way of promotion and 50% by way of LDE, though the same would be achieved in time by following the recruitment process provided in 2016 Rules. The 2016 Rules only provides for the method of recruitment against the vacancies that arise after the coming into force of the 2016 Rules. The 2016 Rules only provides for the method of recruitment against the vacancies that arise after the coming into force of the 2016 Rules. It is in that context that the 2016 Rules will have to be understood. 14. In the case of Lalthangkimi & Ors. Vs. State of Mizoram & Others, reported in: 2019 (5) GLT 462, this Court was to consider whether the 61 vacant posts of Health Supervisor was to be filled up in terms of the 2011 Rules, which provided recruitment to the said posts as follows: 75% by promotion and 25% by LDE. The Government however approved the proposal to fill up the 61 vacant posts of Health Supervisor, 19 posts by promotion and 42 posts by LDE, the percentage of which comes to 31.15% by promotion and 68.85% by way of LDE. Prior to the 2001 Rules, the post of Health Supervisor was governed by the 1987 Rules and the amended Rules of 2006, which provided recruitment through 100% promotion. This Court in the above case of Lalthangkimi vs. State of Mizoram & Others (Supra) held that the percentage of posts to be filled up as per the 2011 Rules could not be counted against the total sanctioned posts, because it would deprive persons who are eligible to be promoted to the post of Health Supervisor in future, the chance of being promoted and secondly, the filling up of the "post" had to be understood and read as "vacancy". Also, the filling up of the post of Health Supervisor beyond the quota earmarked by LDE would amount to giving retrospective effect to the 2011 Rules, which had no retrospective force. This Court accordingly directed that the 61 vacant posts were to be filled up as per the percentage given in the 2011 Rules. 15. The facts of the case in the case of Smt. C. Lalhmingmawii & Another Vs. The State of Mizoram & 4 Others, WP(C) No. 130 of 2014, which was disposed of on 26.08.2015 was that while 30 vacancies arose in the post of Health Supervisor and while the 2011 Recruitment Rules provided that the said post should be filled up 75% by promotion and 25% by LDE, the State Government had taken a decision to fill up all the 30 vacancies by LDE. This Court in the above case also took note of the fact that though the earlier Rules, prior to the 2011 Rules, provided for filling up the post of Health Supervisor by way of 100% promotion, the 30 vacancies that had occurred subsequent to the coming into force of the 2011 Rules would have to be filled up in terms of the 2011 Rules, i.e. 75% by promotion and 25% by LDE. This Court, in the above case, also held that the submission of the learned Addl. Advocate General that a considerable number of posts had already been filled up by way of promotion in terms of the old Rules was not acceptable, as vacancies which arose when a particular Rule were in force had to be filled up by way of the prevailing recruitment Rules and not otherwise. 16. In the case of Smt. Rotluangi Chawngthu & Anr. Vs. State of Mizoram & 3 Ors., WP(C) No. 51/2018, which was disposed vide Judgment & Order dated 27.11.2018, this Court had taken note of the fact that as per the earlier 2009 Rules, promotion to the post of Principal was to be filled up 100% by promotion from Vice Principals, which was a withering post. As the new 2017 Rules, which repealed the 2009 Rules, provided that the posts of Principal had to be filled up, 50% by promotion and 50% by LDE, both from Selection Grade/Senior Grade Lecturers, the 2 (two) vacancies to the post of Principal were directed to be filled up as per 2017 Rules. Though the facts in WP(C) No. 51/2018 are not similar to the facts of the present case, there is a certain similarity, inasmuch as, the question as to whether the percentage already filled up by promotion in terms of the old Rules would bar the filling up of new vacancies by way of 50% promotion in terms of the new Rules, as the percentage of post already filled up by way of promotion was beyond 50% of the regular sanctioned posts. This Court, then directed that recruitment to new vacancies that occurred after the 2017 Rules came into force, had to be filled up as per 2017 Rules. 17. This Court, then directed that recruitment to new vacancies that occurred after the 2017 Rules came into force, had to be filled up as per 2017 Rules. 17. In view of the reasons stated above and keeping in mind the judgments of the Apex Court and the fact that the judgments of this Court have not been set aside till date, this Court finds that there is no justification for the State Government's decision to fill up all the 76 vacant posts of Headmasters by way of LDE, which would be de hors the 2016 Rules. The approval of the State respondents for filling up the 76 vacant posts of Headmaster, in terms of the impugned Notification dated 08.11.2019 being unsustainable, the same is accordingly set aside. 18. The State respondents are accordingly directed to fill up the 76 vacant posts of Headmaster and any other future vacancies that may arise, strictly in terms of the 2016 Rules, i.e., 50% of the vacancies shall be filled up by way of promotion and the remaining 50% shall be filled up by way of LDE. 19. The entire recruitment process should be completed at the earliest and preferably within a period of 3 (three) months from the date of receipt of a copy of this order. The writ petition is accordingly allowed.