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2021 DIGILAW 251 (GAU)

State Of Mizoram v. Lalfamkima

2021-03-12

MANISH CHOUDHURY, NELSON SAILO

body2021
JUDGMENT Nelson Sailo, J. - This Order will dispose of both the writ appeal as well as the Interlocutory Application. 2. Heard Mrs. Linda L. Fambawl, learned Government Advocate for the State appellants and Mr. A.R Malhotra, learned counsel for the respondent No. 1/writ petitioner. 3. This writ appeal is directed against the Judgment & Order dated 18.02.2020 passed by the learned Single Judge in WP(C) No. 39/2016 whereby the learned Single Judge, in allowing the writ petition, directed the respondent authorities to allow the petitioner to count the service rendered by him as Driver on officiating basis w.e.f. 01.09.1990 till 06.08.1993 for the purpose of his upgradation to Driver Grade-II and subsequent upgradation to Driver Grade-I and Driver Special Grade with all service benefits by following the provisions of the Mizoram Driver Recruitment Rules, 2009 (Rules of 2009), within a period of 3 (three) months from the date of receipt of a certified copy of the order. 4. Brief facts of the case as projected by the writ petitioner is that he was appointed as officiating IV Grade for utilization of his service as Driver vide Office Order No. 336/1990. Thereafter, vide Order dated 06.08.1993, he was appointed as Driver in the pay scale of Rs. 950-1500 per month with other admissible allowances from the date of joining. Subsequently, the writ petitioner was promoted as Driver Grade-II (Non-functional) in the pay scale of Rs. 1200-2040 per month w.e.f. 06.08.1998 vide Office Order dated 14.08.1998. Thereafter, vide Order dated 11.10.2000, the petitioner along with 16 (sixteen) others came to be confirmed w.e.f. 06.08.1993. Upon completing 15 years of regular service as Driver Grade-II, the petitioner was upgraded as Driver Grade-I (Non-functional) vide Office Order dated 18.07.2008. Under the Rules of 2009, upon completion of 25 years of regular service calculated from the date of entry into Driver Grade-III, the incumbent holding the post of Driver Grade-I (Non-functional) can be promoted to Driver Special Grade (Non-functional). 5. The grievance of the petitioner is that although his services were utilized as Driver from the date of his initial appointment on 06.09.1990 till the date of his confirmation on 06.08.1993, the said period has not been counted by the respondent authorities for the purpose of determining his length of service as Driver for upgradation to the higher grades. 5. The grievance of the petitioner is that although his services were utilized as Driver from the date of his initial appointment on 06.09.1990 till the date of his confirmation on 06.08.1993, the said period has not been counted by the respondent authorities for the purpose of determining his length of service as Driver for upgradation to the higher grades. However, in case of the respondent No. 2, although he was given regular appointment, on the recommendation of the DPC Meeting held on 21.01.2000 with effect from the date of the recommendation, the services rendered by him w.e.f. 01.09.1990 as officiating Driver has been counted for upgrading him to the post of Driver Special Grade. As such, on completion of 25 years of service, the DPC Meeting held on 23.09.2015 recommended his promotion to the post of Driver Special Grade. The petitioner, therefore, contends that since he is similarly placed and if not better, he should be allowed to count the period he rendered his service as Driver on officiating basis for his upgradation to the post of Driver Special Grade. The learned Single Judge upon considering the rival contentions vide impugned Judgment & Order dated 18.02.2020 allowed the writ petition, as already indicated herein above. Aggrieved with the said decision, the State has filed the instant appeal. 6. Mrs. Linda L. Fambawl, learned Government Advocate by referring to the grounds taken in the writ appeal submits that the writ petitioner had taken the stand before the writ Court that the respondent No. 2 was allowed to count the period of his service, which he rendered as officiating Driver for his upgradation to the next higher grade in the post of Driver. She submits that the respondent No. 2 was initially appointed as officiating Grade-IV on 27.02.1987 and thereafter, he was allowed to officiate as Driver w.e.f. 01.09.1990 vide Office Order No. 335/1990 dated 06.09.1990. Therefore, it is not the case that the respondent No. 2 was allowed to count the service rendered by him as officiating Grade-IV for his upgradation to the next higher Grade in the post of Driver. The learned Government Advocate submits that the writ petitioner, on the other hand, was appointed as officiating Grade-IV vide Office Order No. 335/1990 dated 06.09.1990 for utilization of his service as Driver. Thereafter, he was appointed as Driver vide Office Order No. 321/1993 dated 06.08.1993. The learned Government Advocate submits that the writ petitioner, on the other hand, was appointed as officiating Grade-IV vide Office Order No. 335/1990 dated 06.09.1990 for utilization of his service as Driver. Thereafter, he was appointed as Driver vide Office Order No. 321/1993 dated 06.08.1993. Therefore, as the petitioner was appointed as officiating Grade-IV vide Office Order dated 06.09.1990, the period of such officiation cannot be counted as qualified service for upgradation in the post of Driver. She, therefore, submits that the impugned Judgment & Order may be set aside. 7. Mr. A.R Malhotra, the learned counsel, on the other hand, submits that although the petitioner was appointed as officiating Grade-IV, his services were utilized as Driver since his initial appointment and therefore, he is similarly placed with the respondent No. 2. If the respondent No. 2 is given the benefit of counting the period of service rendered as officiating Driver, similar benefit cannot be denied to the petitioner. Under the circumstance, the learned counsel submits that the impugned Judgment & Order should be upheld. He also submits that the direction passed by the learned Single Judge has already been complied with. However, the compliance was kept in abeyance because of certain contradiction in the first date of joining in Government service and not because of the instant writ appeal filed by the State Government. 8. We have heard the submissions made by the learned counsels for the rival parties and have perused the materials available on record including the record produced by the learned Government Advocate. 9. In the Interlocutory Application filed by the appellants for submission of additional documents, Office Order No. 335/1990 dated 06.09.1990 has been annexed. As per the said order, as many as 6 (six) persons including the respondent No. 2, who were found to be qualified Drivers and entertained against Grade-IV post were allowed to officiate the post of Driver w.e.f 01.09.1990. Having noticed that these 6 (six) persons including the respondent No. 2 had been entertained earlier against Grade-IV post, we directed the learned Government Advocate to produce the Departmental records. Accordingly, the learned Government Advocate has produced the Departmental records. 10. Having noticed that these 6 (six) persons including the respondent No. 2 had been entertained earlier against Grade-IV post, we directed the learned Government Advocate to produce the Departmental records. Accordingly, the learned Government Advocate has produced the Departmental records. 10. A perusal of the Office Order dated 09.10.2015 annexed to the writ petition showing the details of the service rendered by the respondent No. 2 and the Departmental records produced by the learned Government Advocate reveals that the respondent No. 2 entered into Government service on 27.02.1987 as Grade-IV. Thereafter, vide Communication dated 17.08.1987, the Employment Officer, Labour & Employment Department, Govt. of Mizoram, Aizawl forwarded a list of candidates for the post of Driver to the Director of Health Services, Govt. of Mizoram. Amongst the enclosed candidates, the name of the respondent No. 2 appeared at Serial No. 4. Apparently, the respondent No. 2 alongwith other similarly placed candidates underwent a selection process. Subsequently, vide Office Order No. 335/1990 dated 06.09.1990, the respondent authority concerned in the Health & Family Welfare Department allowed the enlisted qualified Drivers to officiate in the post of Driver w.e.f. 01.09.1990. In respect of the writ petitioner has already stated herein above, he was allowed to officiate the post of IV Grade vide Office Order No. 336/1990 dated 06.09.1990. Besides this, it was additionally mentioned that the enlisted persons in the said office order including the writ petitioner were qualified Drivers. Therefore, unlike the respondent No. 2, who was allowed to officiate the post of Driver, the writ petitioner was allowed to officiate the post of IV Grade. Besides this, the respondent No. 2 had also undergone a selection process for the post of Driver on being sponsored by the Employment Exchange, after he was initially appointed as Grade-IV w.e.f. 27.02.1987. Therefore, the case of the respondent No. 2 is not similar with the case of the writ petitioner. Moreover, the period of officiating service rendered by the respondent No. 2 w.e.f. 27.02.1987 up to 31.08.1990 was not counted for his upgradation to the next higher grade in the post of Driver. It is also noticed that the compliance of the direction of the learned Single Judge has been kept in abeyance but that by itself would not be a ground for us to entertain or not to entertain the writ appeal in view of the conclusion that we have reached. It is also noticed that the compliance of the direction of the learned Single Judge has been kept in abeyance but that by itself would not be a ground for us to entertain or not to entertain the writ appeal in view of the conclusion that we have reached. Therefore, upon due consideration of the materials placed before us, we are of the considered view that the writ petition could not have been allowed. We, accordingly, set aside the impugned Judgment & Order dated 18.02.2020 passed in WP(C) No. 39/2016. 11. The writ appeal and the Interlocutory Application thus stands disposed of.