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2021 DIGILAW 301 (GAU)

Er R Lalrinkima v. State Of Mizoram

2021-03-22

SONGKHUPCHUNG SERTO

body2021
JUDGMENT Songkhupchung Serto, J. - Heard Mr. S. Pradhan, learned counsel for the petitioner, Ms. Mary L. Khiangte, learned Government Advocate appearing for the State respondents and Mrs. Dorothy Lalrinchhani, learned counsel for the respondent No. 6. 2. The Power & Electricity Department, Government of Mizoram had only 2(two) sanctioned post of Superintending Engineer (Civil) and they were filled up by one Er. T. Thanzagin and one Er. N. Ranjit Singh (respondent No. 7). In the year 2017, the rule namely, the Mizoram Engineering Services Rules 2013 was amended and the same rule governs all the Engineering Services in the State. As per the schedule of the new rule, the cadre strength of Selection Grade (Superintending Engineer) was only two. The respondent Nos. 5 and 6, who were Superintending Engineers but posted in other departments filed a writ petition praying for a direction to bring them to the Power & Electricity Department. Following the disposal of the writ petition, the Government of Mizoram vide Notification No. A. 11013/7/2007-P&E, dated 17.02.2012, created 2(two) supernumerary posts of Superintending Engineer (Civil) in the Office of Engineer-in-Chief, P & E Department and in those 2(two) posts, the respondent Nos. 5 and 6 were accommodated. In the said notification, a rider was added which stated as follows:- "The posts shall stand abolished as and when vacated either by promotion or supernumerary pension of the incumbents whichever is earlier." 3. On 31.03.2020, Er. T. Thanzagin, who was occupying a substantive post of the Superintending Engineer retired on superannuation and to the post vacated by him, the respondent No. 5 was absorbed and thereafter on 17.12.2020, he was promoted to the post of Chief Engineer. After his absorption, one of the supernumerary post was abolished and in the meantime, the respondent No. 7 retired on 30.09.2020. The petitioner is praying for consideration of his case for promotion to the post of Superintending Engineer vacated by Er. N. Ranjit Singh. 4. It is submitted by Mr. S. Pradhan that the petitioner has been serving in the post of Executive Engineer which is Junior Administrative Grade (Non-Functional) since 2008 and he is the senior most in that grade. Therefore, he is eligible and most deserving person for promotion to the post of Superintending Engineer as per Rule22(3) of the Mizoram Engineering Service (Amendment) Rules 2017, which prescribes 5(five) years of service in the grade of E.E. (Non-functional). Therefore, he is eligible and most deserving person for promotion to the post of Superintending Engineer as per Rule22(3) of the Mizoram Engineering Service (Amendment) Rules 2017, which prescribes 5(five) years of service in the grade of E.E. (Non-functional). However, the respondents are trying to fill up that post by absorbing the respondent No. 6 who is still holding the supernumerary post, thereby depriving him of his chance of being considered for promotion. The learned counsel further submitted that, since the petitioner has been serving in the grade of Executive Engineer for a longtime he deserves to be considered for promotion. 5. The learned counsel further submitted that in the notification issued for creation of the 2(two) supernumerary posts of Superintending Engineer the rider added was that the post shall stand abolished as and when vacated either by promotion or supernumerary pension of the incumbents whichever is earlier. Therefore, if the respondent No. 6 continues in that post he will not suffer any disadvantage including the chance of being promoted. Hence, he should be allowed to continue in that post without being shifted to the substantive post vacated by Er. N. Ranjit Singh till he retired or till he is promoted. The learned counsel continued and submitted that according to the letter dated 22.01.2020 of the Engineer-in-Chief, P & E Department addressed to the Commissioner & Secretary, all the 3(three) posts of the Superintending Engineer are still required for proper and efficient functioning of the Department. Therefore, it can be concluded that the supernumerary post of Superintending Engineer is still required and the occasion for abolishing the same has not arisen. 6. The learned counsel, in support of his submissions relied on the Judgment of the High Court of Himachal Pradesh dated 13.08.2019, passed in the case of Dhanpat Lal Sharma -Vs- Bhakra Beas Management Board (BBMB) & Anr., wherein at paragraph-19 of the judgment of Hon'ble Supreme Court passed in the case of Ajit Singh & Ors(II) -Vs. State of Punjab & Ors, (1999) 7 SCC 209 was cited. The contents of the paragraph are reproduced herein below; "19. In Ajit Singh and other (II) Vs. State of Punjab and others, (1999) 7 SCC 209 , the Hon?ble Supreme Court held as under: "22. Article 14 and Article 16 (1) are closely connected. They deal with individual rights of the person. The contents of the paragraph are reproduced herein below; "19. In Ajit Singh and other (II) Vs. State of Punjab and others, (1999) 7 SCC 209 , the Hon?ble Supreme Court held as under: "22. Article 14 and Article 16 (1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws". Article 16 (1) issues a positive command that "there shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the State". It has been held repeatedly by this Court that sub-clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said sub-clause particularizes the generality in Article 14 and identifies, in a constitutional sense "equal opportunity" in matters of employment and appointment to any office under the State. The word "employment? being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion which is his personal right." 7. Ms. Mary L. Khiangte, learned Government Advocate on the other hand submitted that the government who issued the order creating the supernumerary post of Superintending Engineer has the power to issue another order abolishing the same. It is a policy matter and it is within its domain. Therefore, there is no reason for this Court to interfere. Ms. Mary L. Khiangte also submitted that when it comes to policy making, Courts rarely interfere because it is the Government who knows what is the best to do in the interest of the administration. The learned Government Advocate relied on the judgment of the Hon'ble Supreme Court passed in the case of Balco Employees Union (Regd.) -Vs-. Union of India and Others, (2002) 2 SCC 333 particularly, paragraph No. 92 of the judgment. The learned Government Advocate relied on the judgment of the Hon'ble Supreme Court passed in the case of Balco Employees Union (Regd.) -Vs-. Union of India and Others, (2002) 2 SCC 333 particularly, paragraph No. 92 of the judgment. The contents of the paragraph 92 are reproduced below; "92. In a democracy, it is the prerogative of each elected Government to follow it's own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the Court." The learned Government Advocate further referred to another judgment of the Hon'ble Supreme Court passed in the case of Parisons Agrotech Private Limited and Another -Vs- Union of India and Others, (2015) 9 SCC 657 . The portion of the judgment mainly relied upon is paragraph No. 14. Contents of the paragraph are reproduced here below:- "14. No doubt, the writ court has adequate power of judicial review in respect of such decisions. However, once it is found that there is sufficient material for taking a particular policy decision, bringing it within the four corners of Article 14 of the Constitution, power of judicial review would not extend to determine the correctness of such a policy decision or to indulge into the exercise of finding out whether there could be more appropriate or better alternatives. Once we find that parameters of Article 14 are satisfied; there was due application of mind in arriving at the decision which is backed by cogent material; the decision is not arbitrary or irrational and; it is taken in public interest, the Court has to respect such a decision of the Executive as the policy making is the domain of the Executive and the decision in question has passed the test of the judicial review." 8. Ms. Mary L. Khiangte further submitted that just because the petitioner is eligible for promotion to higher post it does not mean that he has the right to be promoted. Promotion is an incident of service and it is not a vested right of an employee. Therefore, the petitioner cannot claim for promotion as a matter of right. Ms. Mary L. Khiangte further submitted that just because the petitioner is eligible for promotion to higher post it does not mean that he has the right to be promoted. Promotion is an incident of service and it is not a vested right of an employee. Therefore, the petitioner cannot claim for promotion as a matter of right. In support of her submission, the learned counsel referred to the judgment of the Hon'ble Supreme Court passed in the case of Jai Singh Dalal and Others -Vs State of Haryana and Another, (1993) Supp2 SCC 600. The relevant portion of the paragraph Nos. 7 & 10 are reproduced here below:- "7. In the State of Haryana v. Subash Chander Marwaha and Ors., this Court held that the mere fact that certain candidates were selected for appointment to vacancies pursuant to an advertisement did not confer any right to be appointed to the post in question to entitle the selectees to a writ of mandamus or any other writ compelling the authority to make the appointment. In that case, an advertisement was issued stating that there were 50 vacancies in the Haryana Civil Service (Judicial Branch). An examination was held by the HPSC and 40 candidate passed the said examination with the required minimum 45% marks. Their names were published in the Government Gazette. The State Government, the appointing authority, made seven appointments out of the said list in the order of merit. Respondents, who ranked 8, 9 and 13 respectively in that list, did not get an appointment although there were vacancies. The reason for not appointing the respondents was that in the view of the State Government, which was incidentally identical to that of the High Court, candidates getting less than 55% marks in the examination should not be appointed as Subordinate Judge in the interest of maintaining high standards of competence in judicial/ service. Respondents 1 to 3 challenged this decision on the ground that the State Government was not entitled to pick and choose only seven out of them for appointment, because to do so Tanta mounted to prescribing a standard which was not contemplated. The State Government on the other hand contended that the rules did not oblige them to fill in all the vacancies and it was open to them to appoint the first seven candidates in the interest of maintaining high standards. The State Government on the other hand contended that the rules did not oblige them to fill in all the vacancies and it was open to them to appoint the first seven candidates in the interest of maintaining high standards. It was further contended that there was no question of picking and choosing and since the rules did not preclude it from selecting from the list the candidates for appointment to set a higher standard, the State Government could not be said to have infringed, any legal right of the selectees for appointment. In the background of these facts this Court came to the conclusion that the mere fact that the candidates were chosen for appointment in response to the advertisement did not entitle them to appointment. To put it differently, no right had vested in the candidates on their names having been entered on the select list and it was open to the Government for good reason not to make the appointments there from and fill in the vacancies. In a recent decision in Shankarsan Dash v. Union of India, the Constitution Bench of this Court reiterated that even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do/not acquire any indefeasible right to appointment against the existing vacancies, It was pointed out that ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. The State is under no legal duty to fill up all or any of the vacancies by appointing candidates selected for that purpose. Albeit, the State must act in good faith and must not exercise its power mala fide or in an arbitrary manner. The Constitution Bench referred with approval the earlier decision of this Court in Subash Chander's case. Therefore, the law is settled that even candidates selected for appointment have no right to appointment and it is open to the State. Government at a subsequent date not to fill up the posts or to resort to fresh selection and appointment on revised criteria. In the present case the selection was yet to be made by the HPSC. Therefore, the petitioners cannot even claim that they were selected for appointment by the HPSC. Government at a subsequent date not to fill up the posts or to resort to fresh selection and appointment on revised criteria. In the present case the selection was yet to be made by the HPSC. Therefore, the petitioners cannot even claim that they were selected for appointment by the HPSC. The selection process had not been completed and before it could be completed the State Government reviewed its earlier decision and decided to revise the eligibility criteria for appointment. It is, therefore, clear from the settled legal position that the petitioners had no right to claim that the selection process once started must be completed and the Government cannot refuse to make appointments of candidates duly selected by the HPSC. 10. .To so hold would mean that even if the State Government has committed a mistake it has no power to rectify or correct the same. The authority which has power to specify the method of recruitment must be deemed to have the power to revise and substitute the same in the same manner." 9. Lastly, Ms. Mary L. Khiangte submitted that supernumerary post are normally created to accommodate the lien of an officer, who in the opinion of the authority competent to create such a post is entitled to hold a lien against a regular permanent post but due to non availability of a regular permanent post cannot have his lien against such a post. She also submitted that such post are created for accommodating a permanent officer till he or she is absorbed in a regular permanent post but it should not be created for an indefinite period as other permanent post are and it should normally be created for a definite and fixed period sufficient for the purpose in view. The learned counsel also submitted that it is also personal to the officer for whom it is created and no other officer can be appointed against such a post and it stands abolished as soon as the officer for whom it was created vacates it on account of retirement or confirmation in another regular permanent post or for any other reason. The learned counsel referred to the guiding principles issued in the Office Memorandum No. F.8 (4)-E.G.I/61, dated 15.03.1961 of the Government of India, Ministry of Finance, Department of Expenditure in support of her submission. The learned counsel referred to the guiding principles issued in the Office Memorandum No. F.8 (4)-E.G.I/61, dated 15.03.1961 of the Government of India, Ministry of Finance, Department of Expenditure in support of her submission. Thereafter, the learned counsel continued and submitted also that it was following this principle that DP&AR of the Government of Mizoram advised the Department of Power & Electricity to absorb the 2(two) Superintending Engineers, who were appointed to the supernumerary post of Superintending Engineer as and when the two permanent posts become vacant. In support, she referred to the Office note sheet of the DP&AR. 10. Ms. Dorothy Lalrinchhani, learned counsel appearing for the respondent No. 6 submitted that the respondent No. 6 for whom one of the supernumerary post of Superintending Engineer was created and who has served in that post for want of sanction post deserves to be absorbed in the permanent post vacated by the respondent No. 7. In fact, it was his right to be appointed to a sanction post of Superintending Engineer since he was already in that same grade before he was brought in to the department. As such, now that the permanent post has become vacant his interest cannot be ignored. In support of her submission, the learned counsel referred to the judgment dated 01.06.2017, passed by this Court in WP(C) No. 102/2016. The two paragraphs particularly relied upon by the learned counsel are reproduced here below; "7. The petitioner submitted a representation before the Commissioner & Secretary, Power & Electricity Department, Aizawl stating that the post to which the petitioner has been transferred by Notification dated 09.06.2016 is a supernumerary post allotted to the respondent No. 5 and placed before the authority that by the Notification dated 17.02.2012, the State respondents in the Power & Electricity Department created 2 supernumerary posts of Superintending Engineer (Civil) of the said department in terms of an Order passed by this Court on 30.03.2010, wherein it was categorically mentioned that those 2 supernumerary posts shall stand abolished as and when vacated by those 2 Superintending Engineers, including the present respondent No. 5, either by promotion or supernumerary pension of the incumbents, whichever is earlier. And as such, since the petitioner is holding a sanctioned post, he cannot be transferred to such supernumerary post that was earlier held by the respondent No. 5. And as such, since the petitioner is holding a sanctioned post, he cannot be transferred to such supernumerary post that was earlier held by the respondent No. 5. However, the respondents did not consider the said aspect of the matter and by Communication dated 11.07.2016 directed the petitioner to comply with the said Order issued under Order dated 09.06.2016. Hence, this Writ petition. 12. It is settled that transferred is always to post and as a same cadre. Post means a vacant sanction post but it does not say in the service jurisprudence regarding any such supernumerary post. Considering the above, the order issued on 09.06.2016 transferring the petitioner from a sanction post of Superintendent Engineer Project Circle-II, Power & Electricity Department to a supernumerary post created only to accommodate the respondent No. 5 in the Civil Wing in the office of Engineer-in-Chief, Aizawl, is bad in law and accordingly set aside for quash." 11. I have considered the submissions of the learned counsels in the light of the facts and circumstances and the relevant principles of law. 12. Some of the undisputed facts which are relevant for consideration are; (i) That, so far there has been only 2(two) sanctioned posts of Superintending Engineer in the Department of P&E Department and out of them only one is lying vacant after the promotion of respondent No. 5 to the post of Chief Engineer following his absorption to one of the substantive post of superintending Engineer, (ii) That the 2(two) supernumerary post were created to accommodate the respondent No.5 and 6, only to meet a special circumstance which arose at that time and one of them has been abolished since the time the respondent No.5 was absorbed to one of the substantive post, and (iii) That the respondent No.6 who has been in one of the supernumerary post of the Superintending Engineer is senior to the petitioner. What can be deduce from the above given facts and the submissions of the learned counsels is that there are 3(three) posts of Superintending Engineer at present, in the PH & E Department and out of them two are substantive and one is supernumerary, and one among the two substantive post is lying vacant. What can be deduce from the above given facts and the submissions of the learned counsels is that there are 3(three) posts of Superintending Engineer at present, in the PH & E Department and out of them two are substantive and one is supernumerary, and one among the two substantive post is lying vacant. Therefore, if there is no change of policy the petitioner who is stated to be the senior most in the feeder post and is eligible for promotion to such post as per the service rule would have had the right of being considered for promotion to the vacant (substantive) post. Therefore, the issues before this Court are; (i) Whether the Government's decision to absorb the respondent No.6 to one of the substantive post of Superintending Engineer lying vacant and to abolish the remaining one supernumerary post of Superintending Engineer is within the domain of its policy making power or not. (ii) Whether petitioner has a vested right to be promoted to the post of Superintending Engineer or not. 13. In a country governed by democratic form of government, policy making which includes changing or alteration or modification of the same is the domain of the government which is elected by the people. Creation of post and services is also a policy matter and decision to such policy matters are taken by governments primarily for serving public interest and not only for providing employment and promotion. Therefore, to decide whether a post is still required or is no longer required and to take a call to either retain or abolish it is a policy matter and, it is very much within the domain of the government. As long as policy or policies made by governments are not violative of fundamental rights or civil rights or are not so unreasonable, arbitrary and bias, Courts by exercising self restraint have rarely interfered in that domain of governments. In this case, the petitioner has not shown in any way that the decision of the government has violated any of his fundamental rights or civil rights or the policy decision is unreasonable, bias and arbitrary. Nor has this Court find any of it. Rather, it appears to be fair enough and is in the interest of the public because for a small State like Mizoram stream lining of cadre strength is required so that limited public resource is not wasted. Nor has this Court find any of it. Rather, it appears to be fair enough and is in the interest of the public because for a small State like Mizoram stream lining of cadre strength is required so that limited public resource is not wasted. As stated already the 2(two) posts of supernumerary Superintending Engineer were created to meet a certain situation which arose at that time and that situation is going to be no more if and when the respondent No.6 is absorbed in the vacant post of substantive/sanction post of Superintending Engineer. Therefore, at the cost of repetition it may be stated once again that the Government of Mizoram would be within its policy making power if it takes a call to absorb the respondent No.6 to the vacant substantive or sanction post and to abolish the supernumerary post. The learned Government Advocate has referred to the right judgments of the Hon'ble Supreme Court regarding the limitations of judicial review jurisdiction when it comes to policy matters therefore, I do not find the need to further refer to any more judgment or to discuss any further except to say that no ground for interference has been made out by the petitioner. Coming to the second issue, it is a settled principle of service jurisprudence that promotion to higher post is only an incident of service and no Government servant has a vested right to be promoted to higher post. To put it differently, though a Government servant may have the right to be considered for promotion at certain time or stage of his or her service career he or she has no vested right to be promoted. Promotion to higher post would depend on many factors or conditions and unless those are satisfied or fulfilled, by being merely eligible does not necessarily confer a government servant the right to be promoted. Therefore, the policy decision of the Government of Mizoram to absorb the respondent No.6 to the substantive post and to abolish that supernumerary post held by him would not violate any legal right of the petitioner. As such, this Court cannot stop the Government from absorbing the respondent No. 6 to the sanctioned post so that the petitioner can be promoted. As such, this Court cannot stop the Government from absorbing the respondent No. 6 to the sanctioned post so that the petitioner can be promoted. It is true that since the respondent No. 6 has been occupying a supernumerary post duly created, even if he is not absorb to the substantive or sanction cadre post he will neither suffer any disqualification or disadvantage in regards to promotion nor in regards to any entitlement. In other words, even if he is not absorb in the vacant sanctioned post, he has nothing to lose. But that cannot be a reason good enough for this Court to interfere. It appears from that chart shown by the parties that the date on which the respondent No. 6 would superannuate is 30.09.2022, whereas Er. R. Lalrinkima (the petitioner) would superannuate on 30.04.2025. Therefore, the petitioner will have the opportunity of being considered for promotion and if promoted, he would also still have sufficient time to serve as Superintending Engineer. 14. Taking into account all the above, I am of the view that the petitioner has not made out a case strong enough for this Court's interference. Therefore, the writ petition is dismissed. 15. However, since the final decision has not been notified, in case there is change of policy by the government depending on the exigency of the service and other considerations, taking into account the long period of service the petitioner has rendered, his claim for promotion should be considered as per service rules and at the earliest. 16. The writ petition is disposed.