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2022 DIGILAW 558 (GAU)

Lalmuanpuia v. State of Mizoram

2022-05-30

NELSON SAILO

body2022
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. Lalremsanga Nghaka, learned counsel for the petitioners. Also heard Ms. Mary L. Khiangte, learned Government Advocate appearing for the respondents Nos. 1, 2 and 3 and Mr. A.R. Malhotra, learned counsel for the respondent Nos. 5 to 10. None appears for the respondent No. 4 i.e. the Mizoram Public Service Commission (MPSC). 2. Brief facts of the case is that the petitioners were directly appointed to the Junior Grade of the Mizoram Finance and Accounts Service under the Finance Department on 08.09.2011 except for the petitioner No. 5, who was appointed on 02.05.2012. The private respondents were all appointed by promotion to the same Grade on 09.11.2010 after being selected through Limited Departmental Examination (LDE). 3. As per Rule 23 (2) of the Mizoram Finance and Accounts Service Rules, 2008 (Rules of 2008) which governs the service condition of all the petitioners and the private respondents, a member of the service in the Junior Grade is eligible for promotion to the Senior Grade after rendering regular service in the Junior Grade for a minimum period of 5 years subject to Rule 18. Rule 18 prescribes for departmental examination which is required to be cleared by all probationers. According to the petitioners, as they were recruited and appointed to the Junior Grade of the service alongwith the private respondents in the same vacancy year of 2009-2010, they ought to have been considered for promotion to the Senior Grade of the service. They are also one of the senior-most incumbents in the Junior Grade of the service alongwith the private respondents in the final seniority list notified on 14.07.2016. While it took about two months for conducting the LDE for promotion to the Junior Grade of the service, it took about 10 months to finalize the direct recruitment process to the said grade and for this reason, the petitioners claim that they should have been considered for promotion to the Senior Grade by invoking the relaxation clause provided by Rule 27 of the Rules of 2008. The same having not been done, they are before this Court challenging the Agenda Note and the attached documents sent to the MPSC and the rejection of their Representation and the promotion order of the private respondents. 4. Mr. The same having not been done, they are before this Court challenging the Agenda Note and the attached documents sent to the MPSC and the rejection of their Representation and the promotion order of the private respondents. 4. Mr. Lalremsanga Nghaka, learned counsel submits that as per Rule 2(l) of the Rules of 2008, the definition of “year” is 12 months and therefore, the crucial date for considering promotion from Junior Grade to the Senior Grade of the Service should have been the first of January of the relevant year i.e. 2016. However, according to the State respondents, the crucial date was taken as 01.04.2016. If 01.01.2016 was taken as the crucial date, the petitioners would have been eligible to be considered for promotion to the Senior Grade of the service. He submits that even otherwise as Rule 27 of the Rules of 2008 provides for the relaxation clause and the State respondents in order to take care of the hardship faced by the petitioners, ought to have invoked the same for condoning the deficiency in the required length of service which is only for about four months. The learned counsel submits that the representation of the petitioner No. 1 dated 19.08.2016 submitted in this regard came to be rejected by the Department of Personnel and Administrative Reforms (General Service Wing) [DP&AR(GSW)] vide Communication dated 13.09.2016 made to the Finance Department. However, the Finance Commissioner vide his Communication dated 13.10.2016 wrote back asking the DP&AR (GSW) to re-examine the proposal for condoning the shortage in the required length of service of the petitioners for promotion to Senior Grade of the service. But again the same came to be rejected vide the impugned Communication dated 08.11.2016. 5. The learned counsel submits that in rejecting the proposal, the DP&AR(GSW) had quoted the DOPT guidelines dated 03.07.1986 and 04.03.2014 which otherwise are not relevant to the points raised by the petitioners. But again the same came to be rejected vide the impugned Communication dated 08.11.2016. 5. The learned counsel submits that in rejecting the proposal, the DP&AR(GSW) had quoted the DOPT guidelines dated 03.07.1986 and 04.03.2014 which otherwise are not relevant to the points raised by the petitioners. The learned counsel submits that the relevant guidelines in this regard is the amendment to the Office Memorandum dated 18.03.1988 issued by the Ministry of Personnel, PG and Pensioner, Department of Personnel and Training, Government of India on 25.03.1996 which provides that where Juniors who have completed their qualifying/ eligibility service are being considered for promotion, their Seniors are also to be considered provided they are not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less and have successfully completed their probation period for promotion in the next higher grade alongwith their Juniors who have already completed such qualifying/eligibility service. The learned counsel submits that amendment was made pursuant to the Judgment of the Supreme Court in R. Prabha Devi and Others vs. Government of India, (1988) 2 SCC 233 . The learned counsel submits that the State respondents ought to have considered the case of petitioners for promotion to the Senior Grade of the Service by applying the said guidelines. 6. Mr. Lalremsanga Nghaka, learned counsel further submits that since the direct recruitment process to the Junior Grade of the service took longer than the time taken for conducting the LDE, the State respondents ought to have taken this into consideration and considered the petitioners for their promotion to the Senior Grade of the service. In support of his submission, the learned counsel relies upon the case of Pilla Sitaram Patrudu and Others vs. Union of India and Others, (1996) 8 SCC 637 . 7. Ms. Mary L. Khiangte, learned Government Advocate on the other hand submits that although the petitioners have impugned the Agenda Note sent to the MPSC in respect of the private respondents but the petitioners have not raised any grievance against the seniority list, wherein the date of their appointment to the Junior Grade of the service in respect of petitioner Nos. 1 to 4 was clearly shown as 08.09.2011 and 02.05.2012 in respect of the petitioner No. 5. 1 to 4 was clearly shown as 08.09.2011 and 02.05.2012 in respect of the petitioner No. 5. Since Rule 23(2) of the Rules of 2008 stipulates 5 years of regular service in the Grade, the petitioners did not have the same as on 01.04.2016 which is the crucial date for determining eligibility. She submits that the petitioners have also not challenged the determination of the crucial date. She submits that at any rate, the determination of crucial date vide Office Memorandums dated 15.07.2010 and 11.05.2012 was put to challenge before a Coordinate Bench of this Court in WP (C) No. 96/2017 and WP (C) No. 90/2018. The same was disposed of by common order dated 06.11.2020 by setting aside the determination of the crucial date as given in the two Office Memorandums. In the appeal filed by the State respondents and the private respondents separately, the Judgment and Order of the learned Single Judge dated 06.11.2020 was set aside and the determination of crucial date as provided by the two Office Memorandums were restored. Therefore, the present petitioners do not have the scope to challenge the determination of the crucial date through the instant writ petition. 8. The learned Government Advocate further submits that during the pendency of the writ petition, the petitioner No. 1 was promoted to the Senior Grade of the service and the petitioner Nos. 2, 3, 4 and 5 were promoted on officiating basis and thereafter their promotions were regularized except for petitioner No. 5. Therefore, considering the prayer of the writ petitioners in the writ petition, the cause of action does not survive. The learned Government Advocate also submits that although there is a provision for relaxation in the Rules of 2008, the same cannot be claimed by the petitioners to be invoked in their favour as a matter of right. She submits that while the petitioners did not have the requisite years of service to be considered for promotion, there were others such as the private respondents who possessed the requisite years of service as on the crucial date and therefore, the relaxation clause cannot be invoked to the detriment of those who possessed the qualification. In support of her submission, the learned Government Advocate also relies upon the case of R. Prabha Devi and Others (Supra). 9. Mr. In support of her submission, the learned Government Advocate also relies upon the case of R. Prabha Devi and Others (Supra). 9. Mr. A.R. Malhotra, learned counsel for the private respondents adopts the arguments advanced by the learned Government Advocate and further submits that Rule 23(2) of the Rules of 2008 has not been challenged by the petitioners. The petitioners have also not challenged the seniority list of the Junior Grade of the Mizoram Finance and Accounts Service wherein their date of appointment has clearly been reflected. He submits that seniority cannot be given to an employee from a date when he or she is not born in the cadre. He also submits that relaxation clause in the service rules cannot be claimed as a matter of right. Even if the same is to be invoked, the condition of service may be relaxed but not the condition of recruitment. In the present case, having 5 years minimum of regular service in the Junior Grade of the service being a precondition for being considered for promotion to the next higher post and the same being a condition for recruitment, the same cannot be relaxed. He submits that at any rate, relaxation clause cannot be invoked merely because those who are juniors in the service are going to catch up in the absence of eligibility being possessed by the seniors. In support of his submission, Mr. A.R. Malhotra relies upon the following authorities: (1) Palure Bhaskar Rao and Others vs. P. Ramaseshaiah and Others, (2017) 5 SCC 783 (2) K. Meghachandra Singh and Others vs. Ningam Siro and Others, (2020) 5 SCC 689 (3) Sudhakar Baburao Nangnure vs. Noreshwar Raghunathrao Shende and Others, (2020) 11 SCC 399 (4) Noel Prakash vs. State of Arunachal Pradesh and Others, 2007 (2) GLT 1000 10. 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 upon by the parties. As may be noticed, the claim of the petitioners is that since they were recruited against the same vacancy year alongwith the private respondents, they ought to have been considered for promotion to the Senior Grade of the service alongwith the private respondents. As may be noticed, the claim of the petitioners is that since they were recruited against the same vacancy year alongwith the private respondents, they ought to have been considered for promotion to the Senior Grade of the service alongwith the private respondents. The admitted position is that the crucial date for being considered for promotion was taken as 01.04.2016 and on which date, the petitioners fell short of the requisite 5 years of regular service in the Junior Grade of the service, as prescribed by Rule 23(2) of the Rules of 2008. The petitioners have neither challenged the said provision nor the final seniority list published vide Notification dated 14.07.2016. The final seniority list clearly indicates their date of appointment to Junior Grade of the service as 08.09.2011 in respect of petitioner Nos. 1, 2, 3 and 4 and 02.05.2012 in respect of petitioner No. 5, as he was initially in the Panel list and was subsequently appointed after one of the selected candidate rejected the offer of appointment. Rule 27 of the Rules of 2008 provides for relaxation of the rules to overcome any such hardship faced by a particular employee or employees and the petitioners themselves and the Department of Finance had requested for relaxation of the Rules, but the same was refused by the DP&AR (GSW). Although, no particular reason was mentioned in the first Communication dated 30.09.2016 by which the relaxation was regretted, the reason mentioned in the second Communication dated 08.11.2016 was that the interse seniority list was prepared taking into account the guidelines provided by the Office Memorandums dated 03.07.1986 and 04.03.2014 by the Department of Personnel and Training, Government of India, wherein a situation can arise where a junior promotee can be considered for promotion ahead of the direct recruit when the latter does not possess the minimum qualifying service as on a crucial date. 11. Further, the stand taken in the counter affidavit is that the relaxation clause cannot be invoked in favour of ineligible officers at the cost of eligible officers. It is noticed that the Office Memorandum dated 18.03.1988 was amended through the Communication dated 25.03.1996 written by the Under Secretary to the Government of India, Ministry of Personnel, PG and Pensioners, Department of Personnel and Training, Government of India on the basis of the Apex Court’s judgment in the case of R. Prabha Devi and Others (Supra). It is noticed that the Office Memorandum dated 18.03.1988 was amended through the Communication dated 25.03.1996 written by the Under Secretary to the Government of India, Ministry of Personnel, PG and Pensioners, Department of Personnel and Training, Government of India on the basis of the Apex Court’s judgment in the case of R. Prabha Devi and Others (Supra). The modified guidelines has been relied upon by the learned counsel for the petitioners to contend that seniority has to be given due consideration in a situation where juniors have completed the qualifying years of service for promotion to the next higher grade while those who are otherwise senior have not. However, a perusal of the case in R. Prabha Devi and Others (Supra) would go to show that the issue raised for consideration by the Apex Court was as to whether Articles 14 and 16 of the Constitution of India had been violated by the framers of the relevant service Rules and its amendment in providing certain concession to some group of employees in the number of years of service to be rendered in order to be eligible to be considered for promotion to the next higher post. Answering the question in the negative, the Apex Court held that the rule making authority is competent to frame rules laying down eligibility condition for promotion to a higher post and the concession provided by the relevant Service Rules and the amendment cannot be questioned and therefore, they were upheld. 12. Coming to the present case, there is no such provision in the Rules of 2008 which provides for concession in the number of years to be put in by either the direct recruit or the promotees for promotion to the next higher grade. All that Rule 23(2) of the Rules of 2008 provides is that one should have 5 years of regular service in the Junior Grade of the service in order to be eligible to be considered for promotion to the Senior Grade of the service. However, applying the same ratio, the petitioners cannot question the absence of such concession for direct recruits in the Service Rules. However, applying the same ratio, the petitioners cannot question the absence of such concession for direct recruits in the Service Rules. In so far as the ratio laid down by the Apex Court in respect of seniority vis-a-vis eligibility is concerned, the case of R. Prabha Devi and Others (Supra) in fact, supports the case of the respondents inasmuch as the Apex Court held that seniority in a particular cadre by itself does not entitle a public servant for promotion to a higher post unless he fulfills the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor can it override it in the matter of promotion to the next higher post. 13. The Apex Court in the case of Palure Bhaskar Rao and Others (Supra) in the given facts of that case held that seniority and eligibility are distinct concept. As far as promotion or recruitment by transfer to a higher category or different service is concerned, if the method of promotion is seniority-cum-merit or seniority per se, there is no question of eligible senior being superseded. Other things being equal, senior automatically gets promoted. But in the case of selection based on merit-cum-seniority, it is a settled principle that seniority has to give way to merit. Only if merit being equal, senior will get promotion. Merely because a person is senior, if the senior is not otherwise eligible for consideration as per the rules for promotion, the senior will have to give way to the eligible juniors. In addition to this, the earlier decision rendered in R. Prabha Devi and Others (Supra) was also relied upon by the Apex Court. 14. In the case of K. Meghachandra Singh and Others (Supra), the Apex Court accepted and upheld the rules that was considered which provided that seniority in the service is to be determined by the order in which appointments were made to the service. 14. In the case of K. Meghachandra Singh and Others (Supra), the Apex Court accepted and upheld the rules that was considered which provided that seniority in the service is to be determined by the order in which appointments were made to the service. The Apex Court also held that the law laid down in Union of India vs. N.R. Parmar and Others, (2012) 13 SCC 340 conferring back dated notional seniority with reference the years in which recruitment process was undertaken cannot be applied contrary to the expressed statutory recruitment rules applicable to the case being considered. 15. In the case of Sudhakar Baburao Nangnure (Supra), the Apex Court reiterated the law laid down in the case of R. Prabha Devi and Others (Supra) and Palure Bhaskar Rao and Others (Supra). The Apex Court in the facts of that case further held that even if the contention of the appellant on the applicability of the catch-up rule were to be accepted, that will not obviate the requirement of his fulfilling the condition of eligibility for promotion to the next higher post, on the date when the vacancy occurred. 16. In the case of Noel Prakash (Supra), a Co-ordinate Bench of this Court in the given facts of that case held that 6 years in the post of Executive Engineer was the minimum period of service required for being eligible to be promoted to the post of Superintending Engineer and the same being a condition of the appointment by promotion, the same cannot be relaxed. This conclusion was arrived at by applying the ratio laid down by the Apex Court in the case of Syed Khalid Rizvi and Others vs. Union of India and Others, 1993 Supp. (3) SCC 575, wherein it was held that the condition of recruitment and the condition of service are distinct and the latter is preceded by an appointment according to rules. The former cannot be relaxed. 17. In the case of Pilla Sitaram Patrudu and Others (Supra), the ratio laid down by the Apex Court importantly is also that once a person is found to be eligible according to the rules, then his seniority is required to be determined as per the procedure prescribed in the rules invoked. The former cannot be relaxed. 17. In the case of Pilla Sitaram Patrudu and Others (Supra), the ratio laid down by the Apex Court importantly is also that once a person is found to be eligible according to the rules, then his seniority is required to be determined as per the procedure prescribed in the rules invoked. Therefore, in the given facts of that case, the attempt by the petitioners to raise a dispute regarding the seniority of the 5th respondent was rejected in view of he being selected by direct recruitment, he was entitled to be appointed according to rules. Therefore, I find that this decision which is relied upon by the learned counsel for the petitioners does not support the case of the petitioners and in fact, the facts involved are not similar and visibly distinct. 18. In the case of State of Uttar Pradesh and Others vs. Vikash Kumar Singh and Others, (2022) 1 SCC 347 , the Apex Court in the given facts of that case held that the learned Single Judge of the High Court while quashing and setting aside the eligibility list, issued a writ of mandamus directing the competent authority to grant relaxation in qualifying service, as permissible under the relevant relaxation rules. The word used in the relaxation rules is “may” and therefore, the same would mean that relaxation may be given at the discretion of the competent authority. The relaxation cannot be prayed as a matter of right. If a conscious decision is taken not to grant the relaxation, merely because the Rule permits relaxation, no writ of mandamus can be issued directing the competent authority to grant relaxation in qualifying service. The Apex Court therefore held that the High Court committed grave error in issuing the writ of mandamus commanding the competent authority to grant relaxation in the qualifying service. Accordingly, the decision of the learned Single Judge as well as of the Division Bench which upheld the decision of the learned Single Judge was interfered with. 19. Coming to the present case, it may be seen that the word used in Rule 27 of the Rules of 2008 for relaxation is also “may.” Relaxation therefore is not to be given on the mere asking. 19. Coming to the present case, it may be seen that the word used in Rule 27 of the Rules of 2008 for relaxation is also “may.” Relaxation therefore is not to be given on the mere asking. It is the discretion of the competent authority who should first satisfy itself that the operation of any of the rules has caused undue hardship and accordingly take a decision to dispense or relax the particular rule to such extent considered necessary to deal with the case in a just and equitable manner. It can be seen from the materials available on record that the competent authority to grant relaxation has taken a conscious decision not to grant relaxation and therefore, under the given facts and circumstances, this Court finds no reason to take a different view. The ratio laid down in Vikash Kumar Singh and Others (Supra) in my considered view would squarely apply to the present case. 20. Thus, upon due consideration of the matters in its entirety and the authorities referred to herein above, the writ petition is found to be without merit and accordingly, the same is dismissed. No cost.