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2021 DIGILAW 750 (GAU)

David Lallawmkima Fanai v. State of Mizoram

2021-11-30

NELSON SAILO

body2021
JUDGMENT : Heard Mr. F. Lalengliana, learned counsel for the petitioner, Mr. C. Zoramchhana, learned Addl. Advocate General appearing for respondent Nos. 1, 2 & 3 and Mr. A.R. Malhotra, learned counsel for the respondent No. 4. 2. By filing this writ petition, the petitioner seeks for a direction to the respondent authorities to make appropriate modification in the inter-se-seniority list of the officers and staff of the Mizoram Board of School Education (MBSE) in respect of him and the respondent No. 4. According to him, he and the respondent No. 4 should be placed at par in their seniority. He also prays for stay of the process for filling up the post of Secretary, MBSE till final disposal of the writ petition. 3. This Court on 09.03.2021, while issuing notice of motion passed an interim order to the effect that the respondent authorities may go ahead with the process of selection for filling up the post of Secretary, MBSE but the same should not be finalized without leave of the Court till the returnable date. It is noticed that since then, the respondent authorities have not sought for any leave for finalizing the selection process and therefore, the matter rests at that. 4. The case of the petitioner in brief is that the constituted Selection Committee for selecting and appointing Group–A & B Officers held its meeting on 4th & 5th October, 2005 under the Chairmanship of the President of MBSE for filling up of one post of Academic Officer (English) and another post of Academic Officer (Mathematics). The Selection Committee selected the respondent No. 4 against the post of Academic Officer (English) while the petitioner was selected for the post of Academic Officer (Mathematics). Following the selection, they were both given an offer of appointment on 06.10.2005. The respondent No. 4 in response to the offer submitted her letter of acceptance on 07.10.2005. Thereafter, an Order of Appointment was issued separately to both the petitioner as well as the private respondent No. 4 on 10.10.2005. The respondent No. 4 submitted her joining report on the same date while the petitioner submitted his joining report on 14.10.2005. The petitioner as well as the private respondent No. 4 were then confirmed in service vide Order dated 11.04.2008 (Annexure-B) with effect from the date of the order. The respondent No. 4 submitted her joining report on the same date while the petitioner submitted his joining report on 14.10.2005. The petitioner as well as the private respondent No. 4 were then confirmed in service vide Order dated 11.04.2008 (Annexure-B) with effect from the date of the order. The petitioner was then promoted to the Grade-III post i.e. Deputy Controller of Examinations under the MBSE on 13.10.2011 (Annexure-E). Similarly, on the same date, the respondent No. 4 was promoted as Senior Academic Officer which is also a Grade-III post under the MBSE. Subsequently, the petitioner was promoted to the Grade-II post of Director (Academic) on 29.10.2015 and on the same date, the respondent No. 4 was also promoted to a Grade-II post i.e., the post of Controller of Examinations. According to the Mizoram Board of School Education (Recruitment) Regulations, 2017 (2017 Regulations), promotion from Grade-II post to Grade-I post under the MBSE i.e. the post of Secretary is 100% by way of promotion and failing which, by deputation through selection method. Both the petitioner as well as the respondent No. 4 in terms of the 2017 Regulations, are qualified to be considered for promotion to the said post. The respondent authorities started initiating the process of selection for filling up the said post but in the meantime, the petitioner has approached this Court with his grievance through the instant writ petition. 5. The grievance projected by the petitioner is that after he and the respondent No. 4 entered service as Academic Officer, the respondent MBSE came up with a provisional inter-se-seniority list for the officers and staff under the MBSE vide Notification dated 29.07.2011 (Annexure D-I). Against the list of officers in Grade-IV, the respondent No. 4 was placed at Serial No. 12 while the petitioner was placed at Serial No. 13. Thereafter, a final seniority list was published vide Notification dated 27.09.2011 wherein, the private respondent No. 4 was placed above the petitioner at Serial No. 7 and the petitioner at Serial No. 8. 6. Both the petitioner as well as the respondent No. 4 were promoted to the Grade-III post under the MBSE on 13.10.2011 and the respondent MBSE came up with a provisional inter-se-seniority list of officers and staff under the MBSE including the officers in the Grade-III post vide Notification dated 10.08.2015. 6. Both the petitioner as well as the respondent No. 4 were promoted to the Grade-III post under the MBSE on 13.10.2011 and the respondent MBSE came up with a provisional inter-se-seniority list of officers and staff under the MBSE including the officers in the Grade-III post vide Notification dated 10.08.2015. In the said list, the respondent No. 4 placed at Serial No. 1 against the Grade-III post while the petitioner was placed at Serial No. 2. Thereafter, vide Notification dated 21.08.2015 a final seniority list was published in which, the inter-se-seniority position of the petitioner and the private respondent as was fixed in the earlier provisional inter-se-seniority list was maintained. 7. After the petitioner as well as the respondent No. 4 were promoted to Grade-II posts under the MBSE on 29.10.2015, a provisional inter-se-seniority list in respect of the officers and staff under the MBSE, including those in Pay Matrix-12 was notified vide Notification dated 16.09.2019 (Annexure-G) wherein, the respondent No. 4 was placed at Serial No. 1 while the petitioner was placed at Serial No. 2. As per the said notification, 10 (ten) days’ time was given for those who wanted to submit a complaint or representation. The petitioner accordingly submitted his representation to the Secretary, MBSE on 25.09.2019 (Annexure-H) but the same was rejected vide Communication dated 15.11.2019 (Annexure H-1). A final inter-se-seniority list was then published vide Notification dated 20.11.2019 (Annexure-I) wherein, the respondent No. 4 remained at Serial No. 1 in the seniority list and the petitioner at Serial No. 2. 8. Be it stated herein that the petitioner submitted his first representation on 12.11.2017 (Annexure-F) against fixation of seniority. By that time, the petitioner and the respondent No. 4 were already promoted in the Grade-II post enjoying pay level in pay matrix-12. He submitted his second representation on 25.09.2019 and which came to be rejected vide Communication dated 15.11.2019. 9. According to the petitioner, both he and the respondent No. 4 were appointed to the post of Academic Officer on the same date and therefore, their seniority has to be treated at par. In other words, either of them should not be placed above the other in seniority. Mr. 9. According to the petitioner, both he and the respondent No. 4 were appointed to the post of Academic Officer on the same date and therefore, their seniority has to be treated at par. In other words, either of them should not be placed above the other in seniority. Mr. F. Lalengliana, learned counsel submits that seniority has to be counted from the date of the appointment and since the date of appointment of the petitioner and the respondent No. 4 are one and the same, the fixation of seniority by placing the respondent No. 4 above the petitioner cannot be sustained. He, therefore, submits that Court may direct the respondent authorities concerned to consider the case of promotion of the petitioner and the private respondent No. 4 by treating their seniority at par. In support of his submission, the learned counsel relies upon the case of C. Lalrozami & Ors. vs. State of Mizoram & Ors., GLT 2009 (5) 153, Desoola Rama Rao & Anr. vs. State of Andhra Pradesh & Ors., 1988 Supp. 1 SCC 221 and also Chairman, Puri Gramya Bank & Another vs. Ananda Chandra Das & Ors., (1994) 6 SCC 301 . 10. Mr. C. Zoramchhana, learned Addl. Advocate General, on the other hand, submits that seniority of the Officers concerned has been fixed in terms of the appointment order wherein it is clearly provided the appointment will take effect from the date of joining of post. Since the private respondent No. 4 had joined 4 (four) days earlier to the petitioner, she is placed above the petitioner in the seniority list. He also submits that there is delay and laches on the part of the petitioner as he did not submit any representation for 6 (six) long years after the first provisional inter-se-seniority list was published on 29.07.2011. He submits that by the time, the petitioner submitted his first Representation on 12.11.2017, there were already 2 (two) provisional inter-se-seniority list and 2 (two) final inter-se-seniority list. Therefore, the settled position cannot be unsettled at this belated stage and that his representation filed on 25.09.2019 was rightly rejected vide Communication dated 15.11.2019. In support of his submission, the learned Addl. Advocate General relies upon the following decisions:- (i) Direct Recruit Class II Engineering Officers’ Association vs. State of Maharashtra & Ors., (1990) 2 SCC 715 . Therefore, the settled position cannot be unsettled at this belated stage and that his representation filed on 25.09.2019 was rightly rejected vide Communication dated 15.11.2019. In support of his submission, the learned Addl. Advocate General relies upon the following decisions:- (i) Direct Recruit Class II Engineering Officers’ Association vs. State of Maharashtra & Ors., (1990) 2 SCC 715 . (ii) Chandrakishore Singh vs. State of Manipur & Ors., N. Bijoy Singh vs. State of Manipur & Ors., Vandana Karki & Ors. vs. Chandrakishore Singh & Ors., (1999) 8 SCC 287 and (iii) Prabhakar vs. Joint Director, Sericulture Department & Anr., (2015) 15 SCC 1 . 11. Mr. A.R. Malhotra, learned counsel for the respondent No. 4 adopts the argument made by the learned Addl. Advocate General. He further submits that since the appointment order of both the petitioner and the private respondent No. 4 specifically provides that the date of submitting joining report would be reckoned as a date of appointment, there is nothing wrong in the fixation of the inter-se-seniority list. He also submits that the petitioner has raised his grievance on seniority belatedly and therefore, even on this ground the writ petition should be dismissed. He submits that the petitioner has not even challenged the Communication dated 15.11.2019 by which his representation was rejected. Likewise, the stand taken by the petitioner that he was not aware about the various seniority lists published is only an afterthought and in fact, he was never posted out of station and he remained very much within the State capital. Even if he had gone out on leave for some training, the same was only for a few weeks or months and he could have always submitted his representation upon joining back. Lastly, he submits that the petitioner has never taken the stand in his representation that he was not aware about the fixation of the seniority list or that he was not served a copy of the seniority list and therefore, the averments made belatedly through the present writ petition cannot be sustained. He thus submits that the writ petition should be dismissed. In support of his submission, the learned counsel relies upon the Apex Court decision rendered in Dr. Akshya Bisoi & Anr. vs. All India Institute of Medical Sciences & Ors., (2018) 3 SCC 391 . 12. He thus submits that the writ petition should be dismissed. In support of his submission, the learned counsel relies upon the Apex Court decision rendered in Dr. Akshya Bisoi & Anr. vs. All India Institute of Medical Sciences & Ors., (2018) 3 SCC 391 . 12. From the above narration, what can be understood is that the petitioner has prayed for appropriate modification of his seniority vis-à-vis the seniority position of the private respondent No. 4. According to him, his seniority should be at par with that of the respondent No. 4. It may be seen that the respondent MBSE came up with the first provisional inter-se-seniority list of officers and staff vide Notification dated 29.07.2011 while inviting objections or representations against the same from anyone who wished to submit the same within a period of 15(fifteen) days from the date of the notification. In the said list, amongst the Grade-IV Officers, the petitioner was placed at Serial No. 13 while the respondent No. 4 was placed at Serial No. 12. A final inter-se-seniority list was thereafter notified vide Notification dated 27.09.2011 wherein, amongst the Grade-IV officers, the petitioner was placed at Serial No. 8 while the respondent No. 4 was placed at Serial No. 7. Admittedly, the petitioner did not raise any grievance against the said two lists. 13. Thereafter, vide Notification dated 10.08.2015, a provisional inter-se-seniority list of officers and staff under the MBSE was published and by that time, both the petitioner as well as the respondent No. 4 were in the Grade-III post of the MBSE. The petitioner was placed at Serial No. 2 while the respondent No. 4 was placed at Serial No. 1 against the list for Grade-III post. As per the notification, a period of 10 days’ time, counting from the date of the issuance of the notification was given for anyone interested to file representation. Thereafter, a final inter-se-seniority list was published vide Notification dated 21.08.2015 wherein, the position of the petitioner and the respondent No. 4 remained the same as was fixed in the provisional inter-se-seniority list dated 10.08.2015. Both the petitioner and the respondent No. 4 were then promoted to Grade-II post under the MBSE on 29.10.2015. Thereafter, the petitioner for the first time on 12.11.2017 submitted his representation to the respondent No. 3, complaining about his seniority position and asking the respondent authority to make appropriate rectification. Both the petitioner and the respondent No. 4 were then promoted to Grade-II post under the MBSE on 29.10.2015. Thereafter, the petitioner for the first time on 12.11.2017 submitted his representation to the respondent No. 3, complaining about his seniority position and asking the respondent authority to make appropriate rectification. However, there was no response to his representation. That the respondent No. 3 again vide Notification dated 16.09.2019 published a provisional inter-se-seniority list of the officers and staff under the MBSE and by this time, the pay level of both the petitioner as well as the respondent No. 4 was in pay matrix-12. The petitioner was placed in Serial No. 2 in the list for the said pay matrix while the respondent No. 4 was placed at Serial No. 1. The petitioner being aggrieved filed his second representation before the respondent No. 3 on 25.09.2019 and prayed for rectification of the provisional inter-se-seniority list. The petitioner’s representation came to be rejected vide Notification dated 15.11.2019 as communicated by the Under Secretary to the Govt. of Mizoram, School Education Department to the respondent No. 3. The same is abstracted below:- “No.B.11035/61/2014-EDN GOVERNMENT OF MIZORAM SCHOOL EDUCATION DEPARTMENT Mizoram Secretariat Building, Mizoram New Capital Complex Aizawl – 796001 ... Dated Aizawl, the 15th November, 2019 To, The Secretary, Mizoram Board of School Education (MBSE) Aizawl, Mizoram. Subject : Representation submitted against the provisional inter-se-seniority list of MBSE-regarding. Reference : No.A.12011/2018/MBSE-GEN/16 dt.27.9.2019 Sir, With reference to the above, I am directed to state that in the absence of a common merit list at the time of initial appointment to the post of Academic Officer and there being no representation at the time of fixation of inter-se-seniority in the lower grade, there appear to be hardly any material fact to alter the seniority list published by the MBSE. The Board is therefore, informed to maintain status quo on the matter as advised by DP & AR (GSW) vide their I.D. No.GSW.8/2019/972 dt.6.11.2019. Yours faithfully, Sd/- (K.M. LALRINDIKA) Under Secretary to the Govt. of Mizoram School Education Department” 14. From the above abstract, it may be seen that the main grounds for rejection of the petitioner’s representation is the absence of common merit list at the time of initial appointment and lack of representation at the time of fixing seniority in the lower grade. of Mizoram School Education Department” 14. From the above abstract, it may be seen that the main grounds for rejection of the petitioner’s representation is the absence of common merit list at the time of initial appointment and lack of representation at the time of fixing seniority in the lower grade. As already stated earlier, the first provisional inter-se-seniority list in the Grade-IV post under the MBSE was published as far back as on 29.07.2011 by inviting complaints/objections from anyone who wanted to do so. Thereafter, a final inter-se-seniority list was published on 27.09.2011. Again on 10.08.2015, a provisional inter-se-seniority list was published and by which time, the petitioner and the respondent No. 4 were in the Grade-III post under the MBSE. A chance for submitting representation was also given against the said list. Thereafter, a final list was prepared and published on 21.08.2015. Even at this time, there was no complaint from the petitioner and it was only on 12.11.2017, i.e., after more than 6 (six) years from the date of publication of the provisional inter-se-seniority list in the Grade-IV post on 29.07.2011 that the petitioner submitted his representation. The petitioner has tried to explain that it was on account of he being out of station and for one reason or the other, he was unaware about the publication of the seniority list and therefore, he could not file his representation. However, it is seen that the petitioner has somehow not taken this particular stand while submitting his representation on 12.11.2017 and later on, on 25.09.2019 as well. Besides this, it is not even the case of the petitioner that he was posted out of the State capital to some interior location and for which reason, he was unaware of the publication of the inter-se-seniority list. Therefore, it only appears that there is inordinate delay on his part to submit his representation. 15. It may further be noticed that both the petitioner as well as the respondent No. 4 were selected for appointment vide the Meeting Minutes dated 4th & 5th October, 2005. They both were given an offer of appointment and then the order of appointment on the same date. But it may further be noticed in the order of appointment given to them, it was indicated that they are appointed with effect from the date they submit their joining report. They both were given an offer of appointment and then the order of appointment on the same date. But it may further be noticed in the order of appointment given to them, it was indicated that they are appointed with effect from the date they submit their joining report. Undisputedly, the petitioner submitted his joining report on 14.10.2005, while the respondent No. 4 submitted her’s on 10.10.2005. Thereafter, they were both confirmed on the same date and further promoted to the higher grades on the same date as well. In the seniority list for Grade-IV post and thereafter, in Grade-III post, the respondent No. 4 was placed above the petitioner. Since the respondent No. 4 joined 4 (four) days earlier to the petitioner, the respondent authority concerned apparently has placed her above the petitioner in the seniority list and this was the accepted position, until the petitioner submitted his first representation on 12.11.2017. Having regard to the stipulation of effective date of appointment in their appointment Orders dated 10.10.2005 and the dates of their initial joining the post concerned, it only appears that the seniority of both the petitioner and the respondent No. 4 has been appropriately fixed. 16. In the case of Dr. Akshya Bisoi (supra), the Apex Court in the given facts of that case held that an institution of a case and challenging the inter-se-seniority position after a delay of 12 (twelve) years cannot be accepted. The delay on the part of the party concerned in seeking recourse to legal remedies must weigh against them particularly when they were aware of the consistent position of seniority. In the present case as well, the petitioner did not challenge the seniority position for over 6 (six) years and that too without any reasonable explanation. Therefore in my considered view, the same principle as laid down by the Apex Court herein above will apply. 17. In the case of Prabhakar (supra), the Apex Court held that it is now a well-recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases Courts have coined the doctrine of laches and delay as well as doctrines of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases Courts have coined the doctrine of laches and delay as well as doctrines of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity “delay defeats equities”. I find the above ratio laid down by the Apex Court applicable to the present case as well. 18. In the case of direct recruitment Direct Recruit Class II Engineering Officers’ Association (supra), a Constitution Bench of the Apex Court laid down the guidelines for fixing seniority in service. One such guidelines is that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. In the present case, it may be seen that the date of appointment of the rival parties concerned is one and the same and so is the date of confirmation. However, their appointment orders specifically provided that their appointment will be effective from the date of joining. Undisputedly, the respondent No. 4 joined 4 (four) days early to the petitioner and this in the considered opinion of this Court is a reasonable basis for fixation of inter-se-seniority. It may further be added that even if there is similarity in the service particulars of any 2 (two) persons, including their date of joining, their date of birth which is also an accepted criteria will have to be taken into consideration for the purpose of fixing their inter-se-seniority. As for the other authorities relied upon by the learned counsel for the petitioner, in view of the conclusion arrived at, the same are found to be not applicable and therefore, they are not being discussed. 19. Thus, upon due consideration of the case in its entirety, I do not find merit in the writ petition and the same is accordingly dismissed. The interim order which was passed earlier also stands vacated. 20. Under the given facts and circumstances, parties are directed to bear their own costs.