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2021 DIGILAW 91 (GAU)

C. Lalengzauva v. State of Mizoram

2021-02-05

NELSON SAILO

body2021
JUDGMENT : Heard Mr. L.H. Lianhrima, learned Senior Counsel assisted by Ms. Ruth Lalruatfeli, learned counsel for the petitioners in WP(C) No.60 of 2019 and Mr. A.R. Malhotra, learned counsel for the respondent Nos. 5 to 9. Also heard Mr. Joseph L. Renthlei, learned counsel for the petitioner in WP(C) No.62 of 2019 and Mr. A.R. Malhotra, learned counsel for the respondent Nos. 5 to 11. Mr. C. Zoramchhana, the learned Addl. Advocate General, Mizoram appears for the State respondents in both the writ petitions. [2.] WP(C) No. 60 of 2019 pertains to Public Works Department (PWD for short) while WP(C) No. 62 of 2019 pertains to Public Health Engineering Department (PHE Department for short). Since the issue involved in both the cases are similar i.e., seniority between Diploma and Graduate Engineers, they are being disposed of by this common judgment and order. [3.] The brief facts of the case in WP(C) No. 60 of 2019 is that the petitioners, who are 28 in numbers are Graduate Engineers and they were directly appointed to the Mizoram Engineering Service (MES for short). They are aggrieved with the fixation of separate seniority list for Graduate Engineers and Diploma Engineers in the Senior Grade of the MES under the PWD. According to them, reservation between Graduate and Non-Graduate Engineers is to be discontinued after all the present incumbent Non-Graduate Engineers in the Junior Grade as on the date of the commencement of the Mizoram Engineering Service Rules, 2013 (Rules of 2013 for short) get promoted, expired, retired or have quitted the service by any means. They contend that all the Non-Graduate Engineers in the Junior Grade of the MES as on the date of the commencement of the Rules of 2013 except for one Mr. O. Hari Mohan Singha have either been promoted or have retired from service and therefore, fixation of separate seniority list between Graduate Engineers and Diploma Engineers is not justified. [4.] The petitioners therefore contend that the instruction issued by the DP&AR(GSW) vide Communication dated 26.07.2018 (Annexure-15), which is in response to the representation made against the fixation of inter-se-seniority of Senior Grade of the MES (PW cadre) cannot be sustained and should be set aside. [4.] The petitioners therefore contend that the instruction issued by the DP&AR(GSW) vide Communication dated 26.07.2018 (Annexure-15), which is in response to the representation made against the fixation of inter-se-seniority of Senior Grade of the MES (PW cadre) cannot be sustained and should be set aside. The learned Senior Counsel by referring to the Notification dated 10.08.2018 (Annexure-18) submits that it can be seen from the provisional inter-se-seniority list of Senior Grade of MES under PWD cadre (Civil) (Promotee) as on 06.08.2018, Sh. O. Hari Mohan Singha retired on superannuation pension on 31.08.2018 and therefore, there can no longer be any reservation between Graduate and Diploma Engineers and that there should be a common seniority list in the Senior Grade of the MES (PW cadre). [5.] The petitioners further contend that under the PHE Department, placement to the Functional Post of the Senior Grade of the service is done on the basis of seniority as provided by the proviso to Rule 22(5)(b) of the Mizoram Engineering Service (Amendment) Rules, 2017 (Rules of 2017 for short). The said criteria having been followed in respect of the PHE Department, the same should be followed by the PWD as well. [6.] Mr. C. Zoramchhana, learned Addl. Advocate General appearing for the State respondents on the other hand submits that the reservation of posts for Graduate and Diploma Engineers has to be maintained inasmuch as, there still are Diploma Engineers in the Junior Grade who are not yet promoted to the Senior Grade till date. Therefore, in view of Rule 22(5)(a) of the Rules of 2017, fixation of separate seniority list for Graduate Engineers and Diploma Engineers is fully justified and as per the Rules. [7.] Mr. A.R. Malhotra, learned counsel appearing for the private respondent Nos. 5 to 9 in WP(C) No. 60 of 2019 adopts the argument of Mr. C. Zoramchhana, learned Addl. Advocate General and he submits that since there are Junior Grade Engineers who are not yet promoted to the Senior Grade, the quota system/reservation still exist as provided by Rule 22(5)(a) of the Rules of 2017. Therefore, a seniority list is required to be maintained for Graduate and Diploma Engineers separately. [8.] The case of the petitioner in WP(C) No. 62 of 2019 as projected through her counsel Mr. Joseph L. Renthlei is that she is a Diploma Engineer and she should be placed above the private respondent Nos. Therefore, a seniority list is required to be maintained for Graduate and Diploma Engineers separately. [8.] The case of the petitioner in WP(C) No. 62 of 2019 as projected through her counsel Mr. Joseph L. Renthlei is that she is a Diploma Engineer and she should be placed above the private respondent Nos. 5 to 11 (respondent Nos.5 to 8 are Graduate Engineers) in the common inter-se-seniority list of Senior Grade of the MES (Diploma and Graduate) under the PHE Department on the strength of she being posted in a Functional Post i.e., Executive Engineer in the Senior Grade of the MES. She therefore prays for setting aside the letters rejecting her representations dated 02.08.2018 (Annexure-18), 05.10.2018 (Annexure-20) and 29.10.2018 (Annexure-22). She further prays for setting aside the Final inter-se-seniority of Engineers in the Senior Grade of the MES PHE Department, issued vide Notification dated 13.11.2018 (Annexure-23) in so far as the petitioner has been placed junior to the private respondents. In support of his submission, the learned counsel relies upon the following authorities - i) Tripura Bar Association, Agartala & Anr. Vs. State of Tripura & Ors. (1992) 1 GLR 94 ii) Sanjay K. Sinha-II & Ors. Vs. State of Bihar & Ors. (2004) 10 SCC 734 iii) Dr. Rashmi Srivastava Vs. Vikram University & Ors. (1995) 3 SCC 653 iv) Union of India & Anr. Vs. S.S. Ranade (1995) 4 SCC 462 v) Keshav Chandra Joshi & Ors. Vs. Union of India & Ors. 1992 Supp (1) SCC 272 [9.] The State respondents on the other hand in their affidavit-in-opposition contend that since the petitioner as well as the private respondents were promoted to the Senior Grade of the MES on the same day, their inter-se seniority was drawn on the basis of the date of their entry in the Junior Grade of the MES. The Private Respondents in their affidavit-in-opposition contend that according to Rule 22(5)(a) and (b) of the Rules of 2017, there is no difference between promotion to the Senior Grade of the MES on Functional and Non-Functional basis and that both have been kept in an equal footing by the State respondents. [10.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. [10.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. [11.] From the projection made by the petitioners in WP(C) No.60 of 2019 and from the response of the respondents, the issue to be decided is as to whether there should be a common seniority list between Graduate and Diploma Engineers in the Senior Grade of the MES (PW cadre). In respect of WP(C) No.62 of 2019, whether the petitioner should be placed above the private respondents in the inter se seniority list for having been placed in a Functional Post at an earlier point of time. [12.] Rule 22 (5)(a) of the Rules of 2017 provides for functional promotion from Junior Grade to Senior Grade. The same may be abstracted hereunder for ready perusal:- “Rule 22 (5)(a) 5) Senior Grade : Pay Band-3 in the scale of Rs. 15,600+39,100/- with Grade pay Rs. 6,600/- p.m. a) To fill up vacancy(ies) in this Grade, a member of the Service in the Junior Grade who have completed not less than 5 years continuous regular service in the Junior Grade and have passed Departmental Examinations in Engineering and Accounts conducted by the Commission shall be eligible for consideration for promotion by Selection Method. Provided that 80% of the posts shall be reserved for direct quota and 20% for promotion quota. Provided further that the reservation system shall be discontinued after all the incumbents in Junior Grade from promotion quota as on the date of Commencement of the Principal Rules i.e. 23.09.2013 either get promotion or died while in service or retired on superannuation pension or resigned from the Service or removed/dismissed from Service.” [13.] From the above abstract, it may be seen that the eligibility criteria for promotion from Junior Grade to Senior Grade of the MES is that the member of the MES should have completed not less than five (5) years of continuous regular service in the Junior Grade and should have passed Departmental Examination in Engineering and Accounts conducted by the MPSC. Further, 80% of the post is reserved for direct quota and the remaining 20% for promotion quota. Further, 80% of the post is reserved for direct quota and the remaining 20% for promotion quota. The Rule provides that this quota or reservation system shall be discontinued after all the incumbents in Junior Grade from promotion quota as on the date of Commencement of the Principal Rules i.e. 23.09.2013 either get promotion or died while in service or retired on superannuation pension or resigned from the Service or removed/dismissed from Service. The question therefore is as to whether there are any non-graduate engineers as on the date of commencement of the Rules of 2013 left in the Department who has not been promoted from Junior Grade to the Senior Grade of the MES. [14.] This Court after hearing the parties for some time was of the view that the official respondents should clarify the above issue i.e., whether there are any Non-Graduate Engineers as on the date of commencement of the Rules of 2013 left in the Department who has not been promoted from Junior Grade to the Senior Grade of the MES. Accordingly, the learned Addl. Advocate General on 15.10.2020 was asked to obtain written instructions in the matter. Pursuant thereto, the State respondents have filed additional affidavits for PWD and PHE Department separately on 04.11.2020. Relevant portion of the affidavit in respect of PWD i.e., paragraph No.2 may be abstracted hereunder- “2. That as of today there are eighteen (18) numbers of Junior Grade MES Officers (Diploma) under the Public Works Department, Government of Mizoram who were appointed before 23.09.2013 and have not been promoted to Senior Grade MES as below:- Sl. No. Name of Officers Date of Promotion to Junior Grade Remarks 1. Sapdawla 24.9.2003 Departmental Exam not cleared 2. R. Lallianzuala 19.10.2004 -do- 3. Lalzawmliana 19.10.2004 -do- 4. Lalhmachhuana sailo 13.10.2006 -do- 5. Vanramchhuanga 13.10.2006 -do- 6. Kiddy TM Lalrintluanga 02.10.2007 -do- 7. Joel Solo 08.09.2008 -do- 8. Philip Muankima 08.09.2008 -do- 9. K. Thangliankhuma 08.09.2008 -do- 10. B. Lalthanzuala 07.07.2009 -do- 11. K. Vanlalliana 27.11.2009 -do- 12. K. Ramhlumsanga 27.11.2009 -do 13. F. Rohmingthanga 25.02.2010 -do- 14. Lalbiakengi 16.03.2010 -do- 15. H.C. Zirliana 25.08.2010 Agenda papers for promotion to Sr. Grade (NF) is being submitted to DP&AR(GSW) 16. H. Lalnunmawia 09.12.2011 Department Exam not cleared 17. Lalbiakdiki 14.03.2012 -do- 18. K. Thangliankhuma 08.09.2008 -do- 10. B. Lalthanzuala 07.07.2009 -do- 11. K. Vanlalliana 27.11.2009 -do- 12. K. Ramhlumsanga 27.11.2009 -do 13. F. Rohmingthanga 25.02.2010 -do- 14. Lalbiakengi 16.03.2010 -do- 15. H.C. Zirliana 25.08.2010 Agenda papers for promotion to Sr. Grade (NF) is being submitted to DP&AR(GSW) 16. H. Lalnunmawia 09.12.2011 Department Exam not cleared 17. Lalbiakdiki 14.03.2012 -do- 18. Rinkhumi 14.05.2012 -do- [15.] Likewise, the relevant portion of the affidavit in respect of PHE Department i.e., paragraph No.2 may be abstracted hereunder- “2. That as of today there are seven (7) numbers of Junior Grade MES Officers (Diploma) under the Public Health Engineering Department, Government of Mizoram who were appointed before 23/09/2013 and have not yet been promoted to Senior Grade MES as below; Sl. No. Name of Officers Date of Promotion to Junior Grade Date of Superannuation Remarks 1. David Lalawmpuia 15.10.2004 28.2.2025 Departmental Exam not cleared 2. L.H. Lalmama 20.10.2004 30.4.2023 Passed on 12.3.2020 3. K. Lalhmingmawia 21.10.2004 28.2.2025 Departmental Exam not cleared 4. Zoramliana 12.11.2008 30.6.2023 Departmental Exam not cleared 5. Michael Vanlalhlua 29.8.2013 30.6.2025 Departmental Exam not cleared 6. Lalrosiama 29.8.2013 31.1.2026 Passed on 12.3.2020 7. Augustine Tlangrinkhuma 29.8.2013 31.3.2027 Departmental Exam not cleared [16.] From the above abstracts, it can be seen that as on date, there are 18 (eighteen) numbers of Junior Grade MES Officers (Diploma) under the PWD and there are as many as 7 (seven) Junior Grade MES Officers (Diploma) under the PHE Department who were appointed before 23.09.2013 and have not yet been promoted to the Senior Grade of the MES. Therefore, in view of the clarification made by the State respondents through the said affidavit, it becomes clear that the quota system/reservation between Graduate Engineers and Diploma Engineers still subsists in terms of Rule 22(5)(a) of the Rules of 2017. If the quota system subsists, then having a seniority list for Graduate and Diploma Engineers separately is only justified. [17.] The Communication dated 26.07.2018 of the DP&AR(GSW) impugned by the petitioners in WP(C) No. 60/2019 is being reproduced below for ready perusal:- “GOVERNMENT OF MIZORAM DEPARTMENT OF PERSONNEL & ADMINISTRATIVE REFORMS (GENERAL SERVICE WING) Subj : Representation on fixation of inter-se-seniority of Senior Grade of MES (PWD Cadre) - regarding. Ref : (i)No.B.17011/2/2015-PWD(E), dated 01.06.2018 (ii) I.D. No.B.17011/2/2015-PWD(E), dated 17.07.2018 With reference to the letter no. Ref : (i)No.B.17011/2/2015-PWD(E), dated 01.06.2018 (ii) I.D. No.B.17011/2/2015-PWD(E), dated 17.07.2018 With reference to the letter no. and subject cited above, Public Works Department is informed that the problem in fixing common inter-se-seniority of Senior Grade of MES (PW Cadre) is examined. The Department is informed to consider fixing common inter se seniority list of Senior Grade of MES for both the direct recruits and promotes within a particular Wing of the PW Cadre only after all the incumbents in the Junior Grade of MES (PW Cadre) from the promotion quota as on the date of commencement of the Mizoram Engineering Service Rules, 2013, i.e. 23.09.2013 either get promotion or died while in service or retired on superannuation pension or resigned from the service or removed/dismissed from service in line with the provision in Rule 22(5)(a) of the MES Rules, 2013 as amended. The seniority inter se of officers in the Senior Grade of MES within the direct recruitment quota and the promotion quota in each Wing of the PW Cadre may be fixed separately by the Department till such time the condition stated above is fulfilled by taking into consideration the order of merit as recommended by the respective Departmental Promotion Committee/Departmental Screening Committee/MPSC and the instructions of DoPT on the subject matter of seniority issued from time to time. Sd/- (LALRINSANGA) Joint Secretary to the Govt. of Mizoram DP & AR (GSW)” [18.] As already noticed herein above, Rule 22(5)(a) provides that the reservation of post in the ratio of 80:20 between direct and diploma engineers will be discontinued after all the incumbents in the junior grade from the promotion quota as on the date of the commencement of the principle rules i.e., 23.09.2013 either get promoted or died while in service or retired on superannuation pension or resigned from the service or removed/dismissed from service. The additional affidavit filed by the PWD as well as PHE Department on 04.11.2020 clearly indicates that there as many as 18 and 7 Junior Grade MES Officers (Diploma) respectively but have not yet been promoted to the Senior Grade of the MES. As such, in view of Rule 22(5)(a), a separate seniority list for Graduate and Diploma Engineers is only justified. As such, in view of Rule 22(5)(a), a separate seniority list for Graduate and Diploma Engineers is only justified. [19.] As such, upon having regard to the case in its entirety, I do not find the petitioners in WP(C) No. 60 of 2019 to have any legitimate grievance and the writ petition being found without merit, the same is dismissed. [20.] Further, the admitted position is that the MES being an organized service, the Rules of 2013 and the Rules of 2017 are common and equally applicable to four (4) cadres of the service, which includes the PWD and the PHE Department amongst others. Therefore, if a separate seniority list is maintained in respect of the Graduate and Diploma Engineers in the PWD, the same should also be adopted in the PHE Department particularly, when the quota or reservation of post for Graduate and Diploma Engineers in the ratio of 80:20 as per Rules of 2017 is still being maintained. It is also noticed that the PHE Department as on 15.07.2016 was maintaining a separate seniority list for Graduate and Diploma Engineers in the Senior Grade of the MES. So long as a separate seniority list was maintained, there appears to have been no dispute on seniority in between the Graduate and Diploma Engineers. [21.] Thus, having regard to the nature of the controversy in WP(C) No.62 of 2019, this Court is of the considered view that the relief be moulded by directing the respondent authorities to fix a separate inter-se-seniority list between Graduate and Diploma Engineers in the Senior Grade of the MES after giving due opportunities to all the stakeholders to raise their objection if any, within a specified time by issuing a provisional inter se seniority list. [22.] It is ordered accordingly. [23.] Having come to the above finding in WP(C) No. 62/2019, there will be no requirement to dwell upon the authorities relied upon by the learned counsel for the petitioner which are in fact with regard to the manner in which seniority is to be reckoned in a case of regular promotion or officiating promotion or promotion to a non-existent post. [24.] In the result, the Notification dated 23.02.2018 is set aside and the official respondents shall complete the exercise as directed herein above within a period of two (2) months from the date of receipt of a certified copy of this order. No cost.