Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 742 (GAU)

P. Lalnunthara v. State Of Mizoram

2020-11-06

NELSON SAILO

body2020
JUDGMENT Nelson Sailo, J. - This order will dispose of both the writ petitions as they involve similar and identical issues. There are 4 (four) petitioners in WP(C) No. 96/2017 while there is only 1 (one) petitioner in WP(C) No. 90/2018. As for the respondents, they are one and the same in both the cases. 2. Heard Mr. A.R Malhotra, learned counsel for the writ petitioners and Ms. Mary L. Khiangte, learned Government Advocate appearing for the State respondent Nos. 1 to 4. Also heard Mr. J.C Lalnunsanga, learned Standing Counsel, Mizoram Public Service Commission (MPSC) appearing for respondent No. 5 and Mr. L.H Lianhrima, learned Senior Counsel assisted by Ms. Ruth Lalruatfeli, for the respondent No. 7. 3. The case of the writ petitioners in brief is that on the recommendation of the MPSC, they were appointed to the post of Asst. Engineer/Sub-Divisional Officer (AE/SDO) in the Minor Irrigation Department (Irrigation Department), Government of Mizoram in order of merit and with effect from the date of their joining service. The post of AE/SDO is classified as General State Service, Group "A" Gazetted and Non-ministerial. The State Government, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, framed the Mizoram Engineering Service Rules, 2013 (MES Rules) and the same came into force with effect from the date of its publication in the Mizoram Gazette i.e., 23.09.2013. Apart from the Irrigation Department, the MES Rules is applicable to other Departments such as Public Works, Public Health Engineering, etc. 4. That with the framing of the MES Rules, the petitioners and the private respondents were en-cadred in the Junior Grade (AE/SDO) of the service. Rule 22(5) of the MES Rules provides for the criteria for promotion from the Junior Grade is to the Senior Grade. In order to be eligible for promotion, one must have completed not less than 5 (five) years of continuous regular service in the Junior Grade and should have passed Departmental Examination in Engineering and Accounts conducted by the MPSC. Rule 22(5) of the MES Rules provides for the criteria for promotion from the Junior Grade is to the Senior Grade. In order to be eligible for promotion, one must have completed not less than 5 (five) years of continuous regular service in the Junior Grade and should have passed Departmental Examination in Engineering and Accounts conducted by the MPSC. According to the petitioners, against the 2 (two) posts available in the Senior Grade meant for graduate engineers, despite being qualified in terms of the MES Rules, they were not considered for promotion on the ground that they did not pass the Departmental Examinations on the crucial date i.e. 01.04.2017 as provided in the Office Memorandum dated 11.05.2012 (Annexure-14), issued by the Department of Personnel and Administrative Reforms (General Service Wing) [DP & AR (CSW)]. As such, they have challenged the said Office Memorandum and also the earlier Office Memorandum dated 15.07.2010 (Annexure-13) issued by the same Department, by which 1st of January of the vacancy year was fixed as the cut-off date for determining the eligibility for promotion. 5. Mr. A.R Malhotra, the learned counsel, by referring to the Notification dated 26.09.2011 (Annexure-1) submits that the petitioners as well as the private respondents were appointed by the said notification. The names of petitioner Nos. 1 to 4 in WP(C) No. 96/2017 appear at serial No. 2, 3, 5 & 6 respectively while the petitioner in WP(C) No. 90/2018 at serial No. 1. The private respondent No. 6 is at serial No. 7 and in case of the respondent No. 7, he was appointed on 28.02.2012. The learned counsel by further referring to the Notification dated 15.07.2010 (Annexure-13) submits that a final inter-se seniority list of AE/SDO was fixed by the respondent No. 3 where the petitioner in WP(C) No. 90/2018 is placed at serial No. 4 and the petitioners in WP(C) No. 96/2017 are placed at serial Nos. 5, 6, 8 & 9 respectively. As for the private respondent Nos. 6 & 7, they are placed at serial No. 10 & 12 respectively. There is therefore no dispute to the fact that both the private respondents are junior to the petitioners in service. 5, 6, 8 & 9 respectively. As for the private respondent Nos. 6 & 7, they are placed at serial No. 10 & 12 respectively. There is therefore no dispute to the fact that both the private respondents are junior to the petitioners in service. However, in view of the impugned Office Memorandum dated 11.05.2012 fixing 01.04.2017 as the cut-off date for being eligible to be considered for promotion, the petitioners have been deprived of their right to be considered against the 2 (two) Senior Grade posts sought to be filled up. 6. Mr. A.R Malhotra submits that the MPSC in terms of Rule 22(5) conducted Departmental Examination in Engineering and Accounts for the first time w.e.f 24th to 27th May, 2016, and the results were declared vide Communication dated 08.08.2016 of the Controller of Examination, MPSC, to the Joint Secretary to the Government of Mizoram, Irrigation Department (Annexure5). As per the said Communication, all the petitioners failed in Engineering paper-1 while the private respondent Nos. 6 & 7 passed in all the papers. Thereafter, the Deputy Secretary to the Government of Mizoram, Irrigation Department vide his Communication dated 23.09.2016 informed the Secretary, MPSC, that the last exam conducted on 24th to 27th May, 2016 being the first exam conducted in Engineering and Accounts for AE/SDO of the Irrigation Department after the adoption of the MES Rules, another Departmental Examination before the expiry of the current financial year be conducted again to enable the Officers concerned to be considered for promotion before the crucial date i.e. 01.04.2017. However, as the request was not acceded to, the Deputy Secretary to the Govt. of Mizoram, Irrigation Department once again wrote to the Secretary, MPSC requesting the said authority to conduct Departmental Examination within the current financial year for considering those Officers in the Junior Grade to be promoted in the Senior Grade of the MES. However, despite the said letter, the MPSC vide its Letter dated 29.11.2016 wrote back to the Irrigation Department informing that the MPSC has already decided not to conduct Departmental Examination within the current financial year. The Departmental Examination was then conducted with effect from 21st to 24th March, 2017 wherein all the petitioners participated and they managed to clear all the papers. The results were declared vide Notification dated 01.05.2017 by the MPSC. 7. Mr. The Departmental Examination was then conducted with effect from 21st to 24th March, 2017 wherein all the petitioners participated and they managed to clear all the papers. The results were declared vide Notification dated 01.05.2017 by the MPSC. 7. Mr. A.R Malhotra by referring to the Agenda Note prepared by the Secretary to the Government of Mizoram, Irrigation Department and which was sent to the DP&AR (GSW) on 05.07.2017 (Annexure-11) submits that as on that date, the result of the Departmental Examinations having already been declared on 01.05.2017, all petitioners had passed the Examination. Therefore, they could not have been left out from being considered for promotion to the Senior Grade of the service. He further submits that the statements made in the short Agenda Note to the effect that the vacant posts meant for graduate quota arose due to the promotions of 2 (two) Executive Engineers to the post of Superintendant Engineers is not correct. In fact, as on the date when the Agenda Note was prepared, the incumbent Executive Engineers holding the 2 (two) posts concerned were yet to be promoted. He therefore submits that the Agenda Notes are misleading and it has curtailed the rights of the petitioners to be considered for their promotion to the Senior Grade of the service. As such, the same should be interfered with by this Court. 8. The learned counsel further submits that in fact, a coordinate Bench of this Court vide Judgment and Order dated 05.09.2012 passed in WP(C) No.72/2011 (Annexure-15) had already decided the issue regarding fixation of the cut-off date by the impugned Office Memorandum. The learned counsel submits that it was held that the MES Rules do not provide for a cut-off date to determine the eligibility of officers for promotion. Therefore, the cut-off date provided in the impugned Office Memorandum at best can be considered to be made only for administrative convenience. The petitioners passed the Departmental Examinations as on 01.04.2017 while the Agenda Note was forwarded to the DP&AR (GSW) on 05.07.2017 and therefore, the respondent authorities could not have denied the petitioners from being considered for promotion to the next higher grade. 9. The learned counsel submits that the decision of the writ Court was put to challenge in Writ Appeal Nos. 2 & 3 of 2013 which was filed by the State respondents as well as by the aggrieved private respondents. 9. The learned counsel submits that the decision of the writ Court was put to challenge in Writ Appeal Nos. 2 & 3 of 2013 which was filed by the State respondents as well as by the aggrieved private respondents. However, both the appeals were disposed of vide a common Judgment & Order dated 13.10.2015 by not interfering with the finding and decision of the Writ Court. The appellate Court only went a step further in directing the respondent authorities to invoke the relaxation clause provided in the MES Rules. Mr. A.R Malhotra therefore submits that the finding of the Writ Court that the fixation of the cut-off date was not provided in the Service Rules and therefore, the same could not be enforced to deprive the writ petitioners from being considered for promotion was not interfered with by the Division Bench. As such, the present case is squarely covered by the said decision and therefore, the writ petitions may be allowed. 10. The learned counsel, by referring to the Communication dated 14.07.2017 of the MPSC at Annexure-4 of the writ petition, submits that the meeting of the Departmental Promotion Committee (DPC) scheduled to be held on 27.07.2017 to consider the promotion of Engineers from Senior Grade to the Junior Administrative Grade was preponed to 20.07.2017. That to the knowledge of the petitioners, the case for promotion of the private respondent Nos. 6 & 7 was also taken up by the same DPC on 20.07.2017. Therefore, it is clear that the 2 (two) vacancies said to be available in the Senior Grade as per the short Agenda Note attached to the Agenda Note dated 05.07.2017 is not the correct position. It is only after the incumbent officers holding the 2 (two) posts in the Senior Grade were promoted that the vacancy which is reflected in the short Agenda Notes arose. He thus submits that the impugned Office Memorandum dated 15.07.2010 and 11.05.2012, insofar as, the fixation of the crucial date for determining eligibility of officers for promotion is concerned, should be set aside by this Court and the respondent authorities be directed to re-convene a review DPC by including the petitioners in the zone of consideration for promotion from Junior Grade to Senior Grade of the service. In support of his submission, Mr. In support of his submission, Mr. A.R Malhotra, the learned counsel relies upon the following authorities:- (i) Sarva Uttar Pradesh Gramin Bank & Ors. Vs. Manoj Kumar Chak, (2013) 6 SCC 287 . (ii) Veerendra Kumar Dubey Vs. Chief of Army Staff & Ors., (2016) 2 SCC 627 . 11. Ms. Mary L. Khiangte, learned Government Advocate appearing for the State respondents submits that the petitioners, unlike the petitioners in WP(C) No. 72/2011, did not submit any representation seeking relaxation of the eligibility criteria i.e. passing of Departmental Examination in Engineering and Accounts. Therefore, the said writ petition and the connected writ appeal relied upon by the learned counsel for the petitioners cannot be applied to their case. The learned Government Advocate by referring to para 10 of the counter affidavit filed by the State respondents in WP(C) No. 90/2018 submits that the Irrigation Department prepared the Agenda Note for considering the promotion of Officers from Junior Grade to Senior Grade of the service on 24.04.2017 and the DP&AR (ARW) approved the proposal on 20.06.2017. At the relevant time, the petitioners neither submitted a representation nor did they pass the Departmental Examination and therefore, there was no question of considering their case for promotion. The learned Government Advocate submits that the State Government has every right to fix a cut-off date for considering the case of eligible candidates for promotion and in the instant case, such cut-off date was fixed as far back as in the year 2012 and that the same cannot be said to be arbitrary in any manner. In fact, the State respondents have tried their best to help the petitioners by writing to the MPSC for re-conducting the Examination. As the Examination was conducted again and the results declared only on 01.05.2017 and by which time, the agenda paper for promotion was already processed, the petitioners therefore, could not be included for consideration. The petitioners as well as the private respondents had equal opportunities to appear and clear the Departmental Examinations when the same was conducted on 24th to 27th May, 2016. As the petitioners failed to clear all the papers, no blame can be put on the State respondents for not forwarding their names for considering their case for promotion to the Senior Grade. She therefore submits that the writ petitions are without any merit and should be dismissed. As the petitioners failed to clear all the papers, no blame can be put on the State respondents for not forwarding their names for considering their case for promotion to the Senior Grade. She therefore submits that the writ petitions are without any merit and should be dismissed. The learned Government Advocate, in support of her submission, has relied upon the following authorities:- (i) Council of Scientific & Industrial Research & Ors. Vs. Ramesh Chandra Agarwal & Anr., (2009) 3 SCC 35 . (ii) Ramrao & Ors. Vs. All India Backward Class Bank Employees Welfare Association & Ors., (2004) 2 SCC 76 . (iii) State of Punjab & Ors. Vs. Amar Nath Goyal & Ors., (2005) 6 SCC 754 . (iv) Govt. of Andhra Pradesh & Ors. Vs. N. Subbarayudu & Ors., (2008) 14 SCC 702 . 12. Mr. L.H Lianhrima, learned Senior Counsel for the respondent No. 7 in WP(C) No. 96 of 2017 submits that as per Rule 22(5) of MES Rules, the criteria for promotion from Junior Grade to the Senior Grade of the service is that the officer concerned should have completed not less than 5 (five) years of continuous regular service in the Junior Grade and should have passed Departmental Examination in Engineering and Accounts conducted by the MPSC. The petitioners, however, did not clear the Departmental Examination conducted on 24th to 27th May, 2016 and therefore, when the process for filling up of 2 (two) posts of Senior Grade of service was initiated by the respondent authorities, the petitioners were not eligible and as such, they were rightly not placed in the zone of consideration. Therefore, there is no question of there being any illegality in action of the official respondents. The learned Senior Counsel also submits that the Office Memorandum dated 11.05.2012, which provides for the crucial date for determining eligibility of officers for promotion i.e. the first date of the vacancy year was never questioned by the petitioners and therefore, it is not open for them to challenge the same at this belated stage. Moreover, the petitioners never sought for relaxation of the MES Rules to accommodate them in the zone of consideration for being promoted to the next higher Grade. 13. Moreover, the petitioners never sought for relaxation of the MES Rules to accommodate them in the zone of consideration for being promoted to the next higher Grade. 13. The learned Senior Counsel further submits that there is no similarity between the case of the present petitioners and that all the petitioners in WP(C) No. 72/2011, inasmuch as, the case of the petitioners in that case was for relaxation of the MES Rules so as to accommodate them in the zone of consideration for promotion. He submits that fact of the said writ petition being a case for relaxation of the MES Rules can be further appreciated from the Judgment & Order dated 13.10.2015 rendered by the writ appellate Court when the Judgment & Order of the writ Court was further put to challenge. The writ appellate Court by its Judgment & Order directed the respondent authorities to invoke the regularization clause provided in the MES Rules to consider the case of the petitioners. Therefore, the present case clearly being not covered by the earlier Judgment, the writ petitioners cannot be said to have any legitimate grievance and as such, the writ petitions may be dismissed by this Court. In support of his submission, the learned Senior Counsel relies upon the following authorities:- (i) J & K Public Service Commission & Ors. Vs. Dr. Narinder Mohan & Ors., (1994) 2 SCC 630 . (ii) State of Madhya Pradesh & Anr. Vs. Dharam Bir, (1998) 6 SCC 165 . (iii) R. Prabha Devi & Ors. Vs. Government of India, through Secretary, Ministry of Personnel and Training, Administrative Reforms & Ors., (1988) 2 SCC 233 (iv) Delhi Jal Board Vs. Mahinder Singh,2007 7 SCC 210. (v) Nagpur Improvement Trust vs. Yadaorao Jagannath Kumbhare, (1999) 8 SCC 99 . 14. Mr. J.C Lalnunsanga, learned Standing Counsel, MPSC appearing for the respondent No. 5 submits that the State Government vide Office Memorandum dated 11.05.2012 has prescribed for the crucial date for determining the eligibility of officers for promotion as 1st of April of the vacancy year. He submits that the MES Rules does not provide for the crucial date for determining the eligibility and as such, the MPSC has relied upon the Office Memorandum. He submits that from the projected stands of the petitioners, two (2) questions may arise for the MPSC to answer. He submits that the MES Rules does not provide for the crucial date for determining the eligibility and as such, the MPSC has relied upon the Office Memorandum. He submits that from the projected stands of the petitioners, two (2) questions may arise for the MPSC to answer. The first is as to why exams were not conducted by the MPSC on earlier occasions and secondly, why the petitioners were not considered for promotion. With regard to the first question, the learned Standing Counsel submits that the petitioners were appointed to the Junior Grade of the service on 26.09.2011 and even before they completed 5 (five) years of service in the Grade, Departmental Examination was conducted by the MPSC w.e.f 24th to 27th May, 2016. Therefore, there is no substance in the grievance of the petitioners that the MPSC did not conduct the Examination in time. With regard to the second question, he submits that the case of the petitioners were not considered for the simple reason that their names were not forwarded by the State Government to the MPSC for considering their promotion. Therefore, there cannot be any grievance against the MPSC in this regard. Also responding to the submission made that despite several communications to the MPSC for conducting/re-conducting Departmental Examination, the MPSC did not conduct the same as requested, the learned Standing Counsel submits that the MPSC in fact had already prepared its schedule by fixing certain dates for conducting direct recruitment examination for various Departments. Therefore, with the infrastructure and man-power the MPSC has, it was not possible to prioritize the Irrigation Department alone. Nevertheless, the MPSC conducted the second Departmental Examination as soon as it was possible i.e w.e.f. 21st to 24th March, 2017. As such, the respondent MPSC cannot be faulted with in any manner. To substantiate his submission, the learned Standing Counsel refers to paragraph No. 6 and appended annexure of the affidavit-in-opposition filed by the MPSC in WP(C) No. 96/2017. 15. Mr. A.R Malhotra, learned counsel for the petitioners in response to the submissions made by the learned counsels for the respondents submits that the Division Bench of this Court in passing the Judgment & Order dated 13.10.2015 in W.A Nos. 15. Mr. A.R Malhotra, learned counsel for the petitioners in response to the submissions made by the learned counsels for the respondents submits that the Division Bench of this Court in passing the Judgment & Order dated 13.10.2015 in W.A Nos. 2 & 3 of 2012 did not interfere with the findings of the learned Single Judge in WP(C) No. 72/2011 but only went a step further by directing the Departmental Authorities to invoke the relaxation clause provided in the MES Rules. The learned counsel also submits that the Agenda papers for filling up the 2 (two) posts of Senior Grade of the service was sent to the DP&AR (GSW) on 05.07.2017 and by that time, the petitioners had already passed the Departmental Examination. He also submits that non filing of representation by the petitioners seeking condonation or relaxation of the MES Rules, cannot be a ground to reject their claim for promotion. Insofar as the cut-off date or fixation of the crucial date for determining eligibility for promotion is concerned, the respondent authorities have nowhere explained the reason behind fixing 1st of April of the vacancy year as the date. At any rate, fixation of such cut-off date cannot prevent the exercise of judicial review by the High Court. Mr. A.R Malhotra lastly submits that the petitioners did not challenge the Office Memorandums dated 15.07.2010 and 11.05.2012 as there was no occasion or reason to challenge the same. It was only after the petitioners were denied from being considered for promotion by invoking the Office Memorandums that the cause of action arose. As such, they have filed the present writ petitions challenging the same. Under the facts and circumstances, the learned counsel prays that Court may interfere in the matter and grant the petitioners relief as prayed for. 16. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the authorities relied by the parties. 17. Under the facts and circumstances, the learned counsel prays that Court may interfere in the matter and grant the petitioners relief as prayed for. 16. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the authorities relied by the parties. 17. From the case projected by the parties before this Court, the issue to be decided is as to whether the petitioners have been wrongly deprived from being considered for promotion from Junior Grade to the Senior Grade of the service by relying upon the Office Memorandum dated 11.05.2012 wherein the crucial date for determining the eligibility of officers for promotion has been fixed as the 1st of April of the vacancy year, the vacancy year for the present case being 2017- 2018. 18. From the materials available on record, it is seen that the Irrigation Department in order to fill-up two (2) posts of Senior Grade (Executive Engineer) in the Department prepared an Agenda Note on 05.07.2017 (Annexure-11) and forwarded the same to the Under Secretary DP&AR (GSW). As per the Short Agenda Notes enclosed as Annexure-1 to the aforesaid Communication dated 05.07.2017, the crucial date for considering the Officers for promotion was mentioned as 1st of April, 2017. The State respondents against the averments made by the petitioners in paragraph No. 30 of WP(C) No. 96/2017 mentioning about the forwarding of the Agenda Note to the DP&AR (GSW) on 05.07.2017 has given the following reply in their affidavit-in-opposition dated 24.01.2018:- "6. That with regard to the statements made in paragraph No. 13 of the writ petition, I say that on many occasions, recommendation of DPC/MPSC would be obtained in advance for filling up of anticipated vacancies to enable the departments for issue of promotion order as and when vacancy occurred." 19. From the above abstract, it may be noticed that the averments of the petitioner has not been denied. From the above abstract, it may be noticed that the averments of the petitioner has not been denied. It may, however, be further noticed that in the case of WP(C) No. 90/2018, where similar averment has been made by the petitioner, the State respondents in their affidavit-in-opposition filed on 14.03.2019 has stated that the Department forwarded the names of all eligible candidates who had passed mandatory Departmental Examination as prescribed by the MES Rules on the crucial date i.e. 01.04.2017 for considering their case for promotion to the Senior Grade of the service. Paragraph No. 10 of the affidavit-in-opposition may be abstracted as below:- "10. That with regard to the statements made in paragraph No. 21 of the writ petition, I say that Irrigation & Water Resources Department prepares Agenda Notes for consideration of promotion to Senior Grade of MES to DP&AR(GSW) on 24.04.2017 and DP&AR(ARW) approves the proposal for filling up of 2 posts of Senior Grade of MES(EE) under Irrigation & Water Resources Department on 20.06.2017. At the time, there is no representation submitted by petitioner as she had not passed departmental examination. The petitioner clearly did not acquire the right to be considered for promotion as on the crucial date of the vacancy year 2016-2017 in terms of rule 22(5) of the MES Rules, 2013 and hence, no illegality was committed." 20. From the above abstract, it may be seen that according to the Irrigation Department, Agenda Notes were prepared and sent to the DP&AR (GSW) on 24.04.2017 and subsequent thereto, DP&AR approved the proposal on 20.06.2017. The State respondents have however not annexed any document to the affidavit-in-opposition in support of their stand that Agenda Note was prepared and sent to the DP&AR (GSW) on 24.04.2017. The petitioner against the affidavit-in-opposition, filed her affidavit-in-reply on 24.04.2019 denying the stand of the State respondents that the Agenda Note was sent to the DP&AR (GSW) on 24.04.2017 and reiterated that it was a fact that the Agenda Note was sent to the DP&AR (GSW) on 05.07.2017 and which was then approved on 20.06.2017. The Agenda Note dated 05.07.2017 as may be noticed is annexed in both the writ petitions as Annexure-11 and which is followed by the approval given by the DP&AR (ARW) on 20.06.2017. The Agenda Note dated 05.07.2017 as may be noticed is annexed in both the writ petitions as Annexure-11 and which is followed by the approval given by the DP&AR (ARW) on 20.06.2017. Therefore, in absence of any documents to substantiate the stand of the State respondents about the preparation and sending of Agenda Note to the DP&AR (GSW) on 24.04.2017, the Communication dated 05.07.2017 will have to be accepted. 21. There is no dispute at the bar that the petitioners appeared for the Departmental Examination when it was conducted again w.e.f 21st to 24th March, 2017 and following the exams, the results were declared vide Notification dated 01.05.2017. The said notification is annexed as Annexure-10 in both the writ petitions and it is seen from the said notification that all the petitioners have passed the Departmental Examination. It is therefore, clear that as on the date of sending the Agenda Note to the DP&AR (GSW) i.e., 05.07.2017 and/or when the DP&AR(ARW) had given its approval for filling up the two (2) posts on 20.06.2017, all the petitioners had cleared the Departmental Examination in Engineering and Accounts. Therefore, the only impediment for considering the case for promotion is the fixation of the crucial date to determine the eligibility through the Office Memorandum dated 11.05.2012. As may be noticed, this issue was dealt with by a Coordinate Bench of this Court in WP(C) No. 72/2011. Besides the fact that the petitioners in that writ petition had submitted representation seeking relaxation of MES Rules to make them eligible to be considered for promotion, this Court had also gone into the admissibility of fixation of the cut-off date imposed by the O.M dated 15.07.2010. According to the said Office Memorandum, the cut-off date was fixed as 1st of January of the vacancy year to determine the eligibility of officers to be included in the zone of consideration. This Court, however, came to a finding that the fixation of the cutoff date is only for the purpose of administrative convenience and there is nothing sacrosanct about it. The only requirement under the MES Rules is that when the consideration takes place, the candidate should have passed the Departmental Examination. Relevant portion of the said Judgment & Order may be abstracted herein below for ready perusal:- "30. There are two aspects which needs to be considered. The only requirement under the MES Rules is that when the consideration takes place, the candidate should have passed the Departmental Examination. Relevant portion of the said Judgment & Order may be abstracted herein below for ready perusal:- "30. There are two aspects which needs to be considered. Firstly, the requirement of the Rules is only of passing the Departmental Examination. Whoever passes the Departmental Examination would be eligible for consideration for promotion. The question therefore arises is as to whether a condidate who is otherwise eligible in terms of the Rules, can be rendered ineligible by an administrative instruction in the form of Office Memorandum. In the considered opinion of this court, such a course of action would be beyond the Rules and clearly untenable. Secondly, the cut off date of 1st January was brought in by the Office Memorandum dated 15.7.2010. The Rules were notified in the Mizoram Gazette on 6.12.2001, from which date it came into force. From 6.12.2001 to 24.01.2005, there was no cut off date. From 24.01.2005, when the first office memorandum was notified, the first day of April of the vacancy year was fixed as the cut off date for determining eligibility, which was thereafter changed to the first day of January of the vacancy year by the office memorandum dated 15.07.2010. Thus, initially there was no cut off date, then it was 1st April and now 1st January. The court understands that this fixation of cut off date is only for the purpose of administrative convenience and there is nothing sacrosant about it. Only requirement under the Rules is that when the consideration takes place, the candidate should have passed the Department Examination. 31. It is an admitted position that the Departmental Examinations were not conducted in the years 2008, 2009 and 2010. Therefore, during that period, the petitioners could not have got themselves qualified. When it was conducted in 2011, it was for the first time after the Office Memorandum dated 15.7.2010 was framed. As noticed above, examination was held in March, 2011 and the result was declared in May, 2011 in which the petitioners came out successful. Therefore, when the MPSC held its meeting on 4.08.2011, the petitioners had passed the Departmental Examination. 32. Considering the above, the approach of the respondents appears to be hyper-technical. The objection is more of form than of substance. Therefore, when the MPSC held its meeting on 4.08.2011, the petitioners had passed the Departmental Examination. 32. Considering the above, the approach of the respondents appears to be hyper-technical. The objection is more of form than of substance. A careful reading of the Rules would indicate that the petitioners were eligible and there were wrongly denied consideration. 33. In view of the finding that the petitioners were wrongly treated as ineligible candidates, deliberation on the rejection of their representation by a non-speaking order may not be necessary. 34. For the reasons indicated above, this writ petition deserves to be allowed and it is accordingly allowed. The minutes of the MPSC meeting held on 4.8.2011 and the consequential recommendation of the MPSC also dated 4.08.2011 stands set aside and quashed. The respondents shall convene a review DPC to consider the case of the petitioners alongwith Respondent Nos. 5, 6 & 7 and other eligible candidates. 35. This court had initially passed an order dated 11.08.2011 directing the State respondents not to issue promotion orders in respect of respondents 5, 6 & 7. The said order was subsequently modified by this court on 26.08.2011 providing that promotion of respondents 5, 6 & 7 will be subject to the outcome of the writ petition. In view of above and as the writ petition has been allowed, the promotion of respondents 5, 6 & 7 and that of petitioner No. 1 will now be treated as adhoc promotion and would abide by the decision to be taken by the review DPC, which shall be done within a period of 3 (three) months from the date of receipt of a certified copy of this order. 36. Writ petition stands allowed." 22. Aggrieved with the above decision, the State respondents as well as the private respondents in the writ petition filed W.A Nos. 2 & 3 of 2012 before the Division Bench of this Court. Both the writ appeals came to be considered and disposed of by a common Judgment & Order dated 13.10.2015. As per the said Judgment & Order, the decision of the writ Court was not interfered with but the State Government was directed to invoke the relaxation clause of the MES Rules to include the writ petitioners in the zone of consideration and to convene a review DPC as directed by the writ Court. As per the said Judgment & Order, the decision of the writ Court was not interfered with but the State Government was directed to invoke the relaxation clause of the MES Rules to include the writ petitioners in the zone of consideration and to convene a review DPC as directed by the writ Court. Relevant portion of the Judgment & Order of the Division Bench may be abstracted herein below for ready perusal:- "18. The requirement provided in the Rules is to clear the departmental examination. The Rules itself does not provide for any cut off date. However, by the aforesaid Office Memorandum, the cut off date was introduced firstly as April of the vacancy year and thereafter, as January of the vacancy year. In between from 2001 to 2005, no such cut off date was earmarked inasmuch as from 2001 to 2005 there was no such Office Memorandum issued by the Government of Mizoram. 19. It is in such circumstances, the learned Single Judge while pointing out the very objectivity attached to the requirement to clear the departmental examination, made the following observation in paragraph 32 of the impugned judgment:- "32. Considering the above, the approach of the respondents appears to be hyper-technical. The objection is more of form than of substance. A careful reading of the Rules would indicate that the petitioners were eligible and there were wrongly denied consideration." 20. In view of the above, while not interfering with the impugned judgment dated 5th September, 2012 passed by the learned Single Judge in WP(C) No. 72/2011, the writ appeals are disposed of directing the Government to dispassionately consider the case of the appellants by invoking the aforesaid provision of the Rules towards relaxation of the Rules of relaxation and thereafter, to convene the review DPC as of 4th August , 2011, as has been orderd by the learned Single Judge, so as to consider the case of all the incumbents for promotion from the due dates. 21. Let the required exercise in terms of this judgment & order shall be carried out and completed as expeditiously as possible, preferable within (three) months from today. 22. With the above direction, both the appeals stand disposed of." 23. 21. Let the required exercise in terms of this judgment & order shall be carried out and completed as expeditiously as possible, preferable within (three) months from today. 22. With the above direction, both the appeals stand disposed of." 23. From the above abstract, it may be seen that the findings and the decision of the writ Court in WP(C) No. 72/2011 were not disturbed and that a further direction was given to the State authorities to invoke the relaxation clause of the MES Rules to accommodate the writ petitioners in the zone of consideration for being promoted to the next higher Grade. Although it may appear that the main issue or grievance of the petitioners in that case was with regard to the rejection of their representation for relaxation of the MES Rules in their favour, this Court nevertheless had gone into the issue with regard to the admissibility of applying the cut-off date as prescribed by the O.M dated 15.07.2010 and came to a finding and conclusion that the same cannot be a bar for considering the case of officers for promotion as long as they have completed minimum 5 (five) years of regular service in the lower Grade and have passed Departmental Examination in Engineering and Accounts. As already noticed, the finding of the writ Court has not been disturbed by the Division Bench in its Judgment & Order dated 13.10.2015. 24. The decision of the writ appellate Court appears to be final, inasmuch as, none of the parties have informed this Court that the decision was further challenged before the Apex Court. However, before making a conclusion, let us examine the various authorities relied upon by the parties. In the case of Sarva Uttar Pradesh Gramin Bank & Ors. (supra), the Apex Court reiterated the settled principle in law that statutory rules can be supplemented but they cannot be supplanted. In the given facts of that case, the Apex Court held that there was no provision in the Rules which debarred an employee/officer, who had been punished in 5 (five) years preceding the selection process or given an adverse remark or graded "D" to be considered for promotion. Therefore, the circular which laid down such condition was found to be not the requirement provided by the statutory rules concerned. Therefore, the circular which laid down such condition was found to be not the requirement provided by the statutory rules concerned. Accordingly, the appeal preferred by the Bank challenging the relief granted by the High Court in favour of the employee concerned was rejected. 25. In the case of Veerendra Kumar Dubey (supra), the Apex Court in the given facts of that case held that it may have been possible to assail the circular instructions if the same had taken away something that was granted to the individual by the rule. But if an administrative authority prescribes a certain procedural safeguard to those affected against arbitrary exercise of powers, such safeguards or procedural equity and fairness will not fall foul of the rule or be dubbed ultra vires of the statute. 26. In the case of counsel of Council of Scientific and Industrial Research & Ors (supra), the issue was regarding fixation of cut-off date for absorption of Researches under the Absorption Scheme framed pursuant to the direction of the Central Administrative Tribunal and the Apex Court. The Apex Court held that the State is entitled to fix a cut-off date and the same can be struck down only when it is arbitrary and when there is no rational nexus with the object sought to be achieved. In the given facts of that case, a particular date was fixed and the reason behind was that it was the date when the Court had directed the appellants to consider framing of an absorption scheme. Therefore, the Apex Court found that there was no reason to interfere with the fixation of such and cut-off date. 27. In the case of Ramrao & Ors. (supra), the Apex Court in the given facts of that case held that if a cut-off date can be fixed, indisputably those who fall within the purview thereof would form a separate class. Such a classification has a reasonable nexus with the object which the decision of the Bank to promote its employees seeks to achieve. Such classifications would neither fall within the category of creating the class within a class or an artificial classification so as to offend Article 14 of the Constitution of India. Such a classification has a reasonable nexus with the object which the decision of the Bank to promote its employees seeks to achieve. Such classifications would neither fall within the category of creating the class within a class or an artificial classification so as to offend Article 14 of the Constitution of India. The Apex Court in coming to such a finding had also appreciated the case of University Grants Commission vs. Sadhana Chaudhary, (1996) 10 SCC 536 , where it was held that it is a settled law that a choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. 28. In the case of State of Punjab & Ors. vs. Amar Nath Goyal & Ors (supra), the Apex Court held that the financial constraint of the Government would be a valid ground for fixation of cut-off date for grant of benefit of increased quantum of death-cum-retirement gratuity. That the fixation of a particular cut-off date in the given circumstance of that case was not found to be arbitrary, irrational or violative of Article 14 of the Constitution of India. Similarly, in the case of Govt. of Andhra Pradesh & Ors. Vs. N. Subbarayudu & Ors. (supra), the Apex Court had taken a similar view by holding that the cut-off date may be fixed in view of the economic conditions, financial constraint and many other administrative and other attaining circumstances and that the same was within the domain of the Executive and Court should normally not interfered with the same, unless there appears to be on the face of it, blatant discrimination and arbitrariness. 29. In the case of J & K Public Service Commission & Ors (supra), the Apex Court held that regularization of persons appointed on adhoc basis in violation of statutory rules by relaxing the same was ultra vires to the rules. In other words, Government cannot use its executive power to circumvent the requirements of Statutory Recruitment Rules. Therefore, once statutory rules have been made, appointment has to be made only in accordance with the rules. 30. In the case of State of Madhya Pradesh & Anr. Vs. In other words, Government cannot use its executive power to circumvent the requirements of Statutory Recruitment Rules. Therefore, once statutory rules have been made, appointment has to be made only in accordance with the rules. 30. In the case of State of Madhya Pradesh & Anr. Vs. Dharam Bir (supra), the Apex Court in the given facts of that case held that the Court and also the Tribunals have no power to overide the mandatory provisions of the Rules on sympathetic consideration that a person, though not possessing the essential educational qualifications, should be allowed to continue on the post merely on the basis of his experience by adopting a "human approach". That such an order would amount to altering or amending statutory provisions made by the Government under Article 309 of the Constitution. 31. In the case of R. Prabha Devi (supra), the Apex Court in the given facts of that case held that the requirement of the service rules are equally applicable to both direct recruitments and promotees and that mere seniority alone in a particular cadre does not entitle a public servant promotion to a higher post unless he fulfills the eligibility condition prescribed by the relevant rules. 32. In the case of Delhi Jal Board (supra), the Apex Court held that the right to be considered by the Departmental Promotion Committee is a Fundamental Right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. 33. In the case of Nagpur Improvement Trust (supra), the Apex Court held that the High Court while interpreting Section 21 of the Nagpur Improvement Trust Act, 1936, had lost sight of the general principle of service jurisprudence that in the absence of any statutory rules governing the service conditions of the employees, the executive instructions and/or decisions taken administratively would operate in the field and appointments/promotions can be made in accordance with such executive instructions. 34. On going through the various judicial pronouncements of the Apex Court as relied upon by the rival parties, it can be seen that in service jurisprudence, in the absence of statutory rules governing the subject matter, executive or administrative instructions can be applied to supplement the rules holding the field but in no case to supplant them. In other words, administrative instructions/executive instructions cannot override the statutory rules. In other words, administrative instructions/executive instructions cannot override the statutory rules. In the present case, the State respondents have introduced a cut-off date/crucial date for determining the eligibility of officers for promotion to the next higher grade through the Office Memorandums dated 15.07.2010 and 11.05.2012. By the earlier Office Memorandum, 1st of January of the vacancy year was fixed as the crucial date and later, vide the Office Memorandum dated 11.05.2012, 1st of April of the vacancy year was fixed as the crucial date. There is no dispute to the fact that the petitioners participated in the Departmental Examination conducted w.e.f 21st to 24th March, 2017 and that in the results declared on 1st of May, 2017, they cleared all the papers. This Court has also accepted the fact that the Agenda Note for filling up of 2 (two) posts of Senior Grade was prepared and sent to the DP&AR (GSW) on 05.07.2017 and therefore, as on that date, the petitioners had already qualified themselves as required by Rule 22 (5) of the MES Rules i.e., passing the Departmental Examination on Engineering and Accounts. This apart, the finding and decision of a Coordinate Bench of this Court that the cut-off date fixed by the Office Memorandum is more of a form than of substance was upheld by the writ appellate Court when it was challenged by the aggrieved parties. As already noticed, by the time the Agenda Note was prepared and sent to the DP&AR (GSW) on 05.07.2017 and/or when the DP&AR(ARW) had given its approval on 20.06.2017, all the petitioners had cleared the Departmental Examination. Therefore, upon due consideration of the case in its entirety, I find substance in the grievance projected by the petitioners and importantly, in view of the fact that the issue is covered by the decision render in WP(C) No. 72/2011 and W.A Nos. 2 & 3/2013. 35. Thus, in view of the conclusion arrived at as above, the Office Memorandums dated 15.07.2010 and 11.05.2012 insofar as the fixing of crucial date for determining eligibility of officers' promotion to the next higher grade is concerned is found to be unsustainable and the same is set aside. 2 & 3/2013. 35. Thus, in view of the conclusion arrived at as above, the Office Memorandums dated 15.07.2010 and 11.05.2012 insofar as the fixing of crucial date for determining eligibility of officers' promotion to the next higher grade is concerned is found to be unsustainable and the same is set aside. The respondent authorities shall now proceed to convene a review DPC by including the petitioners in the zone of consideration along with those, who are eligible to be considered as on 05.07.2017 within a period of one month from the date of receipt of a certified copy of this order. The recommendation made in favour of the respondent Nos. 6 & 7 by the DPC held on 20.07.2017 stands compromised only to give way to a fresh consideration as directed herein above. The interim order passed earlier also stands merged with this order. 36. With the above observations and directions, both the writ petitions are disposed of as allowed. Parties are directed to bear their own cost.