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2022 DIGILAW 657 (GAU)

V. L. Zirchhuanawmi v. State of Mizoram

2022-06-17

NELSON SAILO

body2022
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. A.R. Malhotra, learned counsel for the petitioners, Mrs. H. Lalmalsawmi, learned Govt. Advocate for the respondent Nos. 1, 2, 3 and 4 and Mrs. Dinari T. Azyu, learned counsel for the respondent Nos. 6, 7, 8 and 9. No one appears for the respondent No. 5 i.e. the Mizoram Public Service Commission. On 12.01.2022, on the submission made by the learned Standing Counsel for the respondent No. 5, it was recorded that the respondent No. 5 will not be filing any affidavit-in-opposition against the writ petition. 2. The 2 (two) writ petitioners have filed the instant writ petition with the following prayer: “In the premises it is most humbly prayed that your Lordships may graciously be pleased to admit this petition, call for the records and issue rule calling upon the Respondents to show cause as to why the impugned Order Memo No. A.32014/1/2008-PWD(E)/Pt dated 1.8.2019 promoting the Respondents No. 6, 7, 8 and 9 to the Senior Grade of MES (Civil) under PW Cadre either on Functional or non-Functional basis shall not be set aside and quashed and after hearing the parties be further pleased to make the rule absolute by allowing the Writ Petition and to pass any other orders as your Lordships may deem fit and proper.” 3. Facts essential for disposal of the writ petition is that the petitioner Nos. 1 and 2 vide Notifications dated 05.09.2008 and 25.05.2010 respectively were appointed as Assistant Engineer/Sub-Divisional Officer (AE/SDO) (Civil) under the Public Works Cadre of the Mizoram Engineering Service under the Public Works Department (PWD) which is catergorized as Grade-V of the Engineering Service. The respondent Nos. 6 to 9 were also appointed as AE/SDO (Civil) under the Public Works Cadre of the Public Works Department vide Notification dated 25.05.2010, similar to the petitioner No. 2. As per the final inter-se-seniority of AE/SDO Grade-V or Junior Grade published vide Office Memorandum dated 02.06.2015, the names of the petitioner Nos. 1 & 2 appear at Serial Nos. 53 and 59 respectively. The names of the private respondent Nos. 6, 7, 8 and 9 appear at Serial Nos. 58, 61, 62, 63 respectively. As per the final inter-se-seniority of AE/SDO Grade-V or Junior Grade published vide Office Memorandum dated 02.06.2015, the names of the petitioner Nos. 1 & 2 appear at Serial Nos. 53 and 59 respectively. The names of the private respondent Nos. 6, 7, 8 and 9 appear at Serial Nos. 58, 61, 62, 63 respectively. As per Rule 22 (5) of the Mizoram Engineering Service Rules, 2013 (Rules of 2013) which came into force with effect from 23.09.2013, the next higher grade i.e. Senior Grade of the Engineering Service can be filled up from amongst the members of the service in the Junior Grade who have completed not less than 5 years of continuous regular service in the grade and have passed departmental examinations in Engineering and Accounts conducted by the MPSC by selection method. 80% of the posts are reserved for graduate engineers while 20% of the posts are meant for the non-graduate engineers. 4. The Rules of 2013 was thereafter, repealed by the Mizoram Engineering Service (Amendment) Rules, 2017 (Rules of 2017) which came into force with effect from 30.11.2017. As per Rule 22 (5) (a) of the Rules of 2017, vacancies in the Senior Grade of the Engineering Service can be filled up from amongst the members of the service in the Junior Grade who have completed not less than 5 years of continuous regular service in the grade and have passed departmental examination in Engineering & Accounts conducted by the MPSC by selection method. 5. Rule 22 (5) (b) of the Rules of 2017 further provides that notwithstanding anything in sub-rule (5) (a) of the Rules, a member of the service in the Junior Grade who have completed not less than 10 years of continuous service in the Junior Grade and have passed departmental examination in Engineering and Accounts conducted by the MPSC shall be eligible for Non-Functional promotion without linkage to vacancies by selection method provided that the provision for Non-Functional promotion shall be irrespective of the reservation system between direct recruits and promotes and shall be effective from the date of issue of Notification dated 04.08.2015. Provided further that the posting of officers to the Functional pot in Senior Grade of the service shall be done as far as possible on the basis of seniority or as determined by the Government from time to time. 6. Provided further that the posting of officers to the Functional pot in Senior Grade of the service shall be done as far as possible on the basis of seniority or as determined by the Government from time to time. 6. The private respondent No. 6 having passed the departmental examination in Engineering and Accounts conducted by the MPSC on 28.04.2016 and the private respondent Nos. 7, 8 and 9 all having passed such examination on 16.01.2012 were considered for promotion to the Senior Grade of the Engineering Service under Rule 22 (5) (a) of the Rules of 2017 by the MPSC. Upon being recommended for promotion, they were all promoted vide Notification dated 01.08.2019 (Annexure-10) with immediate effect. As for the two petitioners, they having passed the departmental examination in Engineering and Accounts only on 09.03.2020 were promoted to the Senior Grade of the Engineering Service in terms of Rule 22 (5) (b) of the Rules of 2017 on Non-Functional basis vide Notification dated 29.07.2020 (Annexure-16). The grievance of the petitioners is that although the private respondents were said to have been promoted under Rule 22 (5) (a) of the Rules of 2017, they continue to hold the same post where they were posted prior to their promotion. Therefore, they having not being given any Functional post, their promotion is only a Non-Functional promotion. However, in order to be eligible for non-Functional promotion, one is required to render at least 10 years of regular service in the Junior Grade which the private respondents did not have at the time of their promotion on 01.08.2019. Therefore, their promotion is neither under Rule 22 (5) (a) or Rule 22 (5) (b) of the Rules of 2017. The petitioners submitted a representation before the respondent authorities concerned for appropriate relief but the same was rejected and therefore, they are before this Court. 7. Mr. A.R. Malhotra, learned counsel for the writ petitioners submits that Rule 22 (5) (a) of the Rules of 2017 contemplates filling up of vacancies in the Senior Grade of the Engineering Service from amongst the members of the service in the Junior Grade who have completed 5 years of continuous regular service in the Junior Grade and have passed departmental examination in Engineering and Accounts. The pre-condition for invoking this provision is that there should be vacancies. The pre-condition for invoking this provision is that there should be vacancies. However, the private respondents although said to have been considered for promotion in terms of Rule 22 (5) (a) of the Rules of 2017, they have not been posted against any Functional post after being promoted but continued to remain in their respective posts which are in fact, the posts meant for Junior Grade of the service. As such, the promotion of the private respondents is only a promotion on Non- Functional basis as provided under Rule 22 (5) (b) of the Rules of 2017. However, as the private respondents did not have the required length of service of 10 years in the Junior Grade, their promotion order is not sustainable and should be set aside and quashed. In support of his submission, the learned counsel relies upon the case of State of Jharkhand vs. Bhadey Munda and Another, (2014) 10 SCC 398 . 8. Mrs. H. Lalmalsawmi, learned Govt. Advocate by referring to affidavit-in-opposition filed by the State respondents on 24.08.2021 submits that promotion from Junior Grade to Senior Grade of the Engineering Service in terms of Rule 22 (5) (a) and Rule 22 (5) (b) of the Rules of 2017 does not necessarily bestow upon the promotee the right to hold a Functional post of Senior Grade. Posting of officer in the Functional post is to be done as far as possible on the basis of seniority or as determined by the Government from time to time in terms of the second proviso of Rule 22 (b) of the Rules of 2017. She submits that the private respondents were promoted to the Senior Grade of the service as per the provision of Rule 22 (5) (a) of the Rules of 2017 pursuant to the approval of the Department of Personnel & Administrative Reforms (DP&AR) dated 15.05.2019 and the recommendation of the MPSC. The private respondents were promoted against vacancies caused by the retirement and promotion of incumbents. As for the posting to the Functional post, the same is to be done as per the second proviso to Rule 22 (5) (b) of the Rules of 2017. She therefore submits that the writ petition has no merit and the same should be dismissed. 9. Mrs. Dinari T. Azyu, learned counsel for the private respondents submits that she adopts the arguments of the learned Govt. Advocate. She therefore submits that the writ petition has no merit and the same should be dismissed. 9. Mrs. Dinari T. Azyu, learned counsel for the private respondents submits that she adopts the arguments of the learned Govt. Advocate. She further submits that from a bare perusal of the pleadings of the writ petitioners, the petitioners besides seeking the cancellation of the promotion orders of the private respondents have nowhere stated that they are eligible to be considered for promotion in place of the private respondents. She submits that the petitioners having passed the departmental examination only on 09.03.2020, they were not eligible to be considered for promotion to the Senior Grade of the service along with the private respondents in the year 2019. She submits that not only were they not eligible to be considered under Rule 22 (5) (a) but also under Rule 22 (5) (b) of the Rules of 2017 as they did not pass the departmental examination in Engineering & Accounts prior to 09.03.2020. She submits that even assuming or argument’s sake that the private respondents were wrongly promoted, the petitioners have no right to challenge the promotion order of the private respondents as none of their rights have been affected and that the instant writ petition is not a public interest litigation. She also submits that even otherwise, a public interest litigation is not maintainable on service matters as per the High Court Rules. The learned counsel therefore submits that the petitioners have no locus-standi to file the instant writ petition and the writ petition should therefore be dismissed. In support of her submissions, the learned counsel has relied upon the following authorities: (i) Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra, (2013) 4 SCC 465 (ii) K. Manjusree vs. State of Andhra Pradesh and Another, (2008) 3 SCC 512 10. I have heard the learned counsels for the rival parties and I have also perused the materials available on record. As can be seen, the prayer of the petitioners is to set aside the promotion order of the private respondents. According to them, the private respondents could not have been promoted under Rule 22 (5) (a) of the Rules of 2017 as promotion under the said provision should only be against existing vacancies. As can be seen, the prayer of the petitioners is to set aside the promotion order of the private respondents. According to them, the private respondents could not have been promoted under Rule 22 (5) (a) of the Rules of 2017 as promotion under the said provision should only be against existing vacancies. The private respondents were not promoted against vacancies and this can be seen from the fact that they continued to hold their original post even after their promotion. In other words, they have not been posted against any Functional post in the Senior Grade of the service. 11. Against this contention, it may be seen from the note sheet for initiating the promotion process which is annexed to the writ petition as Annexure-6, there were in all 6 vacancies to be filled up in the Senior Grade of the service. Out of the 6 vacancies 3 posts were chain vacancies while 3 posts were due to superannuation of the incumbents. Since the Rules of 2017 provide for 80% reservation for graduate engineers and 20% reservation for diploma engineers, 4 posts were filled up from engineers having degrees and the remaining 2 were from diploma holders. On being promoted vide Notification dated 01.08.2019, the private respondents have been given Level-11 of the pay matrix with all other admissible allowance attached to the Senior Grade of the service. However, despite their promotion, the private respondents have continued to remain in their earlier place of posting which admittedly are the posts meant for incumbents in the Junior Grade of the service. This has happened due to the fact that according to the State respondents, posting of officers to the Functional post in Senior Grade of the service is to be determined on the basis of seniority or as determined by the Government from time to time in terms of the second proviso to Rule 22 (5) (b) of the Rules of 2017. However, this proviso in my considered view can only be the guiding factor for making posting to Functional post in the Senior Grade for those who have been promoted on Non-Functional basis under Rule 22 (5) (b) of the Rules of 2017. The State respondents admittedly have applied this proviso for the promotions made under Rule 22 (5) (a) of the Rules of 2017 as well. 12. The State respondents admittedly have applied this proviso for the promotions made under Rule 22 (5) (a) of the Rules of 2017 as well. 12. It would be relevant to see that it is not the private respondents who have approached this Court with the grievance that despite being promoted under Rule 22 (5) (a) of the Rules of 2017, they have not been given any Functional post but rather it is the petitioners who have sought for setting aside the promotion order of the private respondents issued on 01.08.2019. However, in making such prayer, the petitioners have nowhere stated or taken the stand that they should be promoted instead of the private respondents. Facts not in dispute is that the petitioners were not eligible to be considered for promotion at the time the private respondents were considered either in terms of Rule 22 (5) (a) or Rule 22 (5) (b) as they did not pass the departmental examination in Engineering and Accounts as mandated by the relevant provisions of Rules of 2017. Therefore, in absence of any such prayer, the writ petition cannot be maintainable. Although in the interpretation of Rule 22 (5) (a) and (b) of the Rules of 2017, the State respondents appear to have made inconsistent statements in their affidavits but the same in my considered view, cannot have an impact on the finding of this Court already recorded herein above that the petitioners do not have the locus standi to file the writ petition with the prayer made by them. 13. The Apex Court in Ayaaubkhan Noorkhan Pathan (supra) in the given facts of that case held that it is a settled legal position that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. Coming to the present case, it may be seen that it is not even the case of the petitioners as already stated herein above that they are eligible to be considered for promotion under Rule 22 (5) (a) of the Rules of 2017 instead of or along with the private respondents. in a court of law. Coming to the present case, it may be seen that it is not even the case of the petitioners as already stated herein above that they are eligible to be considered for promotion under Rule 22 (5) (a) of the Rules of 2017 instead of or along with the private respondents. Therefore, the petitioners cannot be persons aggrieved, warranting the interference of this Court in exercise of its extra ordinary powers under Article 226 of the Constitution of India. 14. In the case of State of Jharkhand vs. Bhadey Munda and Another (supra), the Apex Court held that a promotion can only be made if there is an existing vacancy. In the present case, the same has only been applied by the State respondents as the consideration for the promotion of the private respondents was against existing vacancies as can be seen from the note sheet annexed to the writ petition itself as ‘Annexure-6’. It is only that after being recommended for promotion, the private respondents have not been given their posting against Functional posts as according to the State respondents, their turn for Functional posting will come on the basis of their seniority. The private respondents have only accepted this position. 15. Therefore, under the facts and circumstance, the petitioners cannot be considered as party aggrieved. The writ petition is thus found to be without any merit and is therefore dismissed. No cost.