JUDGMENT : Heard Mr. A.R. Malhotra, learned counsel for the petitioner. Also heard Ms. Mary L. Khiangte, learned Government Advocate for the State respondents. 2. The petitioner, by way of this writ petition, has prayed for setting aside the letter dated 12.11.2012, by which the petitioner’s request for regularization in terms of the Regularisation of Muster Roll Employees Mizoram Scheme, 2000 has been declined. The petitioner has also put to challenge the impugned Order dated 22.05.2013 issued by the respondent No. 2, whereby it has been held that the petitioner who is a Muster Roll employee, does not deserve to be reengaged. 3. The facts of the case in brief is that the petitioner had been engaged as a Muster Roll worker in the Mizoram House, Silchar, Assam since 15.04.1998. However, the petitioner was dismissed from service vide impugned Order dated 27.04.2012 issued by the respondent No. 3, on account of a lost key that went missing from a bunch of keys pertaining to the Dak Bungalow building of Mizoram House, Silchar. The said key was found in the possession of the petitioner and was retrieved from the top drawer of the desk, as pointed out by the petitioner. The petitioner was thus dismissed from service as LDC (MR) on the ground of his integrity was found to be doubtful and as he was found to be untrustworthy. 4. Being aggrieved, the petitioner filed WP(C) No. 54/2012 before this Court praying that the impugned Order dated 27.04.2012 should be set aside, as no notice/opportunity of hearing had been provided to the petitioner. WP(C) No. 54/2012 was disposed of vide Order dated 03.09.2012 by this Court, wherein it was held that the order being stigmatic and as no notice was issued to the petitioners, the petitioner should have been given an opportunity to have his say before passing of the dismissal order. 5. This Court thus, set aside the impugned dismissal order. This Court further held that the respondents were to look into the prayer of the petitioner for regularization in terms of the Regularisation of Muster Roll Employees Mizoram Scheme, 2000. 6. 5. This Court thus, set aside the impugned dismissal order. This Court further held that the respondents were to look into the prayer of the petitioner for regularization in terms of the Regularisation of Muster Roll Employees Mizoram Scheme, 2000. 6. In compliance with the Order dated 03.09.2012 passed in WP(C) No. 54/2012, the respondents issued the impugned Order dated 12.11.2012, stating that the petitioner’s request for regularization was declined, as only 25% of the sanctioned post could be filled up from eligible Muster Roll employees who had rendered not less than 7 years in terms of para 4(iii) of the Regularisation of Muster Roll Mizoram Scheme, 2000 (hereinafter referred to as the 2000 Scheme). As there was only 1 post of LDC in Mizoram House, Silchar, 25% of 1 post rounded off to the nearest digit worked out to be ‘zero’. Thus, no post was available, which could be filled up under the quota of regularization. 7. The respondents thereafter issued a show cause notice dated 21.11.2012 to the petitioner stating that his acts and commissions were grave misconducts unbecoming of a Government servant and the same exhibited his unfitness and lack of integrity for service under the Government of Mizoram. He was therefore, directed to give a reply to the show cause notice as to why he should be re-engaged as LDC on Muster Roll basis. The acts and commissions enumerated as grave misconducts in the show cause notice dated 21.11.2012 is reproduced below:- “That Pu Z. Khawzawl knowingly and secretly detached the key of the Liaison Officer’s Office door-lock from the bunch of keys kept in the room of the Liaison Officer on 26.4.2012. There was no reason for doing so unless he intends to enter the L.O’s Office Chamber with ulterior motives”. “That Pu Z. Khawzawl had aided one guest of Mizoram House Silchar to access the Office Computer in the Establishment room in the morning before opening of office, without prior permission of the concerned authority”. “That Pu Z. Khawzawl had, time and again, threatened his colleagues with dire consequences inspite of having been reprimanded by the Liaison Officer on several occasions”. “That Pu Z. Khawzawl was in the habit of discharging his official duties under the influence of intoxicating drinks and was often a nuisance to others”. “That Pu Z. Khawzawl had, time and again, threatened his colleagues with dire consequences inspite of having been reprimanded by the Liaison Officer on several occasions”. “That Pu Z. Khawzawl was in the habit of discharging his official duties under the influence of intoxicating drinks and was often a nuisance to others”. “That inspite of repeated warnings, though verbally Pu Z. Khawzawl has no intention of improving himself and is not amenable to discipline”. 8. The petitioner thereafter submitted his reply dated 01.12.2012, denying the charges listed out in the show cause notice dated 21.11.2012. Thereafter, the respondent No. 2 issued the impugned Order dated 22.05.2013, wherein it was decided that the petitioner did not deserve to be re-engaged as a Muster Roll employee, on the ground that the misconduct of discharging duty under the influence of alcohol was supported by the statements of his colleagues. 9. The petitioner’s counsel submits that a perusal of the 2000 Scheme shows that 25% post reserved for regularization of Muster Roll employees would have to be considered in terms of the sanctioned strength of the Department and not of a single office. With regard to the impugned Order dated 22.05.2013, wherein the respondent No. 2 has stated that the petitioner did not deserve to be re-engaged, the petitioner’s counsel submits that as the charge of discharging duty under influence of alcohol was a misconduct and as the same had been allegedly proved by the statements made by 16 other employees, the petitioner should have been given an opportunity to cross examine those 16 witnesses. He submits that due to the petitioner not being given an opportunity to cross examine those witnesses, there has been violation of the principles of natural justice. Accordingly, he prays that the impugned Order dated 22.05.2013 and the letter dated 12.11.2012 should be set aside. In support of his submission, the learned counsel has relied upon the judgment of the Apex Court in State Bank of India & others Vs. Palak Modi & Another, reported in (2013) 3 SCC 607 . 10. Ms. Mary L. Khiangte, learned Government Advocate appearing for all the respondents, on the other hand submits that the petitioner’s request for regularization of his service had been correctly declined in view of the fact that there was only one post of LDC in Mizoram House, Silchar. Palak Modi & Another, reported in (2013) 3 SCC 607 . 10. Ms. Mary L. Khiangte, learned Government Advocate appearing for all the respondents, on the other hand submits that the petitioner’s request for regularization of his service had been correctly declined in view of the fact that there was only one post of LDC in Mizoram House, Silchar. Further, 25% of 1 post works out to be ‘zero’ and as such, there was no infirmity with the decision not to regularise the petitioner’s case in terms of the 2000 Scheme. She also submits that as per the Notification dated 18.01.2013 issued by the respondent No. 2, the Notification dated 18.01.2013 which came into effect from 03.08.2010 will be treated as a separate entity and shall form a separate cadre in the unit where he/she has been posted. 11. The learned Government Advocate submits that there is no infirmity with the decision of the respondent No. 2 in coming to a decision that the petitioner did not deserve to be re-engaged as a Muster Roll employee, as the petitioner was found to be discharging duty under the influence of alcohol on many occasions. She submits that the respondent No. 2 had given an opportunity of hearing to the petitioner with regard to his illegal acts by issuing a show cause notice dated 21.11.2012 and the petitioner had replied to the same vide Reply dated 01.12.2012. The Government Advocate also submits that a Muster Roll employee is not a Government servant and is thus not governed by the CCS (CCA) Rules. As such, the procedure enumerated for conducting a departmental proceeding against the Government servant, cannot be claimed by a Muster Roll employee. 12. I have heard the learned counsels for the parties. 13. At the outset, this Court finds that there has been some delay on the part of the petitioner in approaching this Court. The impugned orders have been issued on 12.11.2012 and 22.05.2013, while the writ petition has been filed only on 10.03.2016 i.e., after a lapse of nearly three years. 14. 13. At the outset, this Court finds that there has been some delay on the part of the petitioner in approaching this Court. The impugned orders have been issued on 12.11.2012 and 22.05.2013, while the writ petition has been filed only on 10.03.2016 i.e., after a lapse of nearly three years. 14. With regard to the petitioner’s challenge to the rejection of the petitioner’s regularization of his service vide the impugned letter dated 12.11.2012, this Court finds that in terms of the Second Amendment (2011) to the Regularisation of Muster Roll Employees Mizoram Scheme, 2000, (hereinafter referred to as the Second Amendment, 2011) which came into effect on 20.01.2011, 25% of the total sanctioned posts under direct recruitment quota may be reserved for Muster Roll employees or as the Government may determine from time to time. As such, as per the Second Amendment to the 2011, 25% of the total sanctioned post under Direct Recruitment could be reserved for Muster Roll employees. The State respondents have taken a stand that there is only 1 post of LDC in Mizoram House, Silchar. The Notification dated 18.01.2013 issued by the respondent No. 2 states that the staff namely, UDC/LDC/Driver/CA/Group ‘D’ (Duftry, Peon, Chowkidar, Sweeper, Mali, Scaleman, Room Waiter, Cook, Attendant, Potdar, Khansama, Dhobi, Paniwala, Masalji, Liftman, Handyman, Jamadar, Telex Operator) working in a District or Mizoram House or Aviation Wing or Protocol & Hospitality Wing under GAD shall be treated as separate entity and shall form separate cadre in the unit where they have been posted. 15. The Notification dated 18.01.2013 came into force from 03.08.2010 and a reading of the same clearly shows that UDC (Upper Division Clerk) is a separate entity and as such forms a separate cadre in the unit. Similarly, LDC (Lower Division Clerk) is to be treated as a separate entity and shall form a separate cadre in the unit. Similarly, Driver, CA and Group ‘D’ are separate and distinct entities. As there is only one post of LDC in Mizoram House, Silchar, there is no infirmity with the rejection of the petitioner’s request for regularization, as 25% of one post would come to ‘zero’ when being rounded off. Similarly, Driver, CA and Group ‘D’ are separate and distinct entities. As there is only one post of LDC in Mizoram House, Silchar, there is no infirmity with the rejection of the petitioner’s request for regularization, as 25% of one post would come to ‘zero’ when being rounded off. Though an attempt is being made to show that all the LDC posts in all the Mizoram Houses, all over India, would have to be considered as one entity, this Court is of the view that such an interpretation is not the intention of the Notification dated 18.01.2013, inasmuch as, the appointments are made to specific Mizoram Houses in various States, all over India. The relevant para 3 of the Notification dated 18.01.2013 is reproduced below:- “3. Now, the government has, for administrative convenience, decided that the staff namely, UDC/LDC/Driver/CA/Group ‘D’ (Duftry, Peon, Chowkidar, Sweeper, Mali, Scaleman, Room Waiter, Cook, Attendant, Potdar, Khansama, Dhobi, Paniwala, Masalji, Liftman, Handyman, Jamadar, Telex Operator) working in a District or Mizoram House or Aviation Wing or Protocol & Hospitality Wing under GAD shall be treated as separate entity and shall form separate cadre in the unit where they have been posted.” Further, no such averment is made in the petitioner’s pleadings. Also, the petitioner’s averments with regard to the Notification dated 18.01.2013 is in paragraph 9 of the affidavit-in-reply, which is as follows : “9. That with regard to the statement made in para No. 12 of the affidavit-in-opposition, I beg to state that even if there is no vacancy for regularization of MR employees as per the Scheme at this stage, at least I ought not to have been illegally removed from my engagement as such so that I may be regularized as and when there would occur vacancy for my regularization.” 16. With regard to the second challenge made in this writ petition by the petitioner i.e. to the impugned Order dated 22.05.2013 issued by the respondent No. 2, this Court finds that while a show cause Notice dated 21.11.2012 had been issued to the petitioner, giving the petitioner an opportunity to reply to the misconducts committed by him, this Court finds that the petitioner was not given any copy of the statements made by the 16 witnesses, on the basis of which the respondents had taken a decision that the petitioner did not deserve to be re-engaged as a Muster Roll employee. This Court is of the view that the State Government has the right to terminate the services of the Muster Roll employees, as and when the services of the said Muster Roll employees is not required any longer, beyond the period of engagement. In that case, no notice need be sent to the said Muster Roll employee and his service can be disengaged at the end of his service period. However, in the present case, the petitioner service was disengaged, prior to his service period coming to an end and due to the petitioner being found to be untrustworthy, besides his questionable integrity. The dismissal of the petitioner being stigmatic, this Court in WP(C) No. 54/2012 had directed that notice had to be issued to the petitioner, prior to his termination. In the show cause notice dated 21.11.2012, the State respondents have used the word ‘misconduct’ and also stated that his acts and commissions were unbecoming of a Government servant. The use of the words ‘misconduct’ and ‘unbecoming of a Government servant’ by the State respondents in the show cause notice dated 21.11.2012, in the view of this Court, does not mean that the petitioner is to be treated as a Government servant, as because a Muster Roll employee is not a Government servant. A Government servant is selected and appointed to a Civil post as per Service (Recruitment Rules) and a Muster Roll employee is not appointed to a Civil post, but is engaged on a roll. A Muster Roll employee does not come within the definition of the Government servant in terms of Rule 2(h) of the CCS (CCA) Rules or the Government servant within the CCS (Conduct) Rules, which have been adopted by the State of Mizoram. In view of an MR employee not being a Government servant, this Court is of the view that the procedure to be followed in a departmental proceeding against a Government servant, cannot be applied to the case in hand, inasmuch, the petitioner cannot have the right to cross examine the 16 other employees/colleagues of the petitioner, who had given their statements to the effect that the petitioner used to be under the influence of alcohol while on duty. The above being said, the fact remains that the petitioner was not re-engaged as an MR employee on the basis of the statements made by the 16 colleagues of the petitioner, which was recorded by the State respondents on 03.05.2013. The show cause notice was issued to the petitioner on 21.11.2012, enumerating the various misconducts of the petitioner, one of which was that the petitioner was in the habit of discharging his duties under the influence of intoxicating drinks and was often a nuisance to others. This particular misconduct, on the basis of which the petitioner has not been re-engaged as an MR worker, has been made on the basis of the statements of the 16 other employees. As stated earlier, while the show cause notice was issued on 21.11.2012, the statements of the 16 colleagues of the petitioner were recorded in the year 2013. As the impugned Order dated 22.05.2014 has been made on the basis of the statements made by 16 colleagues of the petitioner, this Court is of the view that the statements made by the 16 colleagues of the petitioner, who had stated that the petitioner used to be under the influence of alcohol and was drinking during office hours, should have been furnished to the petitioner, to enable him to make a reply to the said statements made by the 16 colleagues of the petitioner. 17. In the case of State Bank of India & others Vs. Palak Modi & Another (Supra), the Apex Court was to decide the issue as to whether a regular inquiry was to be held for discharging a probationer. The Apex Court held that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation, on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking a decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice. 18. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice. 18. On considering the decision of the Apex Court in State Bank of India & others Vs. Palak Modi & Another (Supra), this Court reiterates that an MR employee, not being a Government servant, the procedure to be followed in a departmental proceeding would not be applicable to an MR employee. However, the principles of natural justice would have to be applied to the case of an MR employee, if the termination or disengagement from service is of a punitive nature. 19. In view of the reasons stated above, this Court holds that the respondents decision not to re-engage the petitioner as an MR employee on the basis of the statements made by the 16 colleagues of the petitioner, without giving the petitioner a chance to make a reply to the statements made by the 16 colleagues of the petitioner, is in violation of the principles of natural justice. 20. The relevant paragraphs of the impugned Order dated 22.05.2013, which is at paragraphs 8, 9, 10 and 11 is reproduced below:- “8. In their statements 16(sixteen) employees namely, (1) Mrs. Hasina Begum, Assistant, (2) Mr. SC Dey, Sweeper (3) Mr. Kalu Mia, Room Waiter (4) Mr. A.H. Majumder (MR) LDC (5) Mr. H. Lalhruaitluanga, MR LDC (6) Mrs. Swapna Das, MR LDC (7) Mr. M.K. Ghosh, Peon (8) Mr. Ram Prakash Balmiki, Sweeper (9) Mr. J.M. Das, Cook (10) Mr. Romani Deka, Sweeper (11) Mr. Arun Malakar, Driver (12) Mr. Chawnghmingthanga, Room Waiter (13) Mr. K.P. Nayak, Peon (14) Mr. Monorajan Roy, Plumber (15) Mr. Dhonanjooy Das, Room Waiter, (16) Mr. Amar Das, Room Waiter deposed that when he was working as muster roll employees, Shri Z. Khawzawl used to be under the influence of alcohol even during office hours/intimidated his fellow colleagues. 9. 7 (seven) employees, namely (1) Mr. Lalramzauva, (MR) LDC (2) Mr. Monoranjan Malakar, Peon (3) Mr. Nepal Das, Room Waiter (4) Mr. UR Majumder, Room Waiter (5) Mr. Babus Das, Mali (6) Mrs. Sahanara Begum Laskar, Copy Writer (7) Mr. Mohan Lal Balmiki, Sweeper did not speak anything adverse against the said Shri Z. Khawzawl. 10. Out of the remaining 4 employees, Mr. Lalramzauva, (MR) LDC (2) Mr. Monoranjan Malakar, Peon (3) Mr. Nepal Das, Room Waiter (4) Mr. UR Majumder, Room Waiter (5) Mr. Babus Das, Mali (6) Mrs. Sahanara Begum Laskar, Copy Writer (7) Mr. Mohan Lal Balmiki, Sweeper did not speak anything adverse against the said Shri Z. Khawzawl. 10. Out of the remaining 4 employees, Mr. A.H. Barbhuiya, LDC (Rtd.) deposed that the said Shri Z. Khawzawl consumed alcohol, but he was otherwise an efficient worker and his consumption of alcohol did not affect his duties and hence, dismissal would be a severe penalty. Mr. N.L. Goala, Electrician and Mr. Moinul H. Barbhuiya, Sweeper deposed that they heard about the said Shri Z. Khawzawl consuming liquor and giving threat to his colleagues. Only Mr. B. Bhattacharjee, UDC deposed that the Dy. Resident Commissioner initially trusted Shri Z. Khawzawl but later developed personal disliking for him. He also stated that the Deputy Resident Commissioner is of suspicious mind and arrogant in style of functioning. He attributed dismissal to personal disliking by the Dy. Resident Commissioner of the said Shri Z. Khawzawl. 11. It is seen that the misconduct of discharging duty under influence of alcohol, is very much supported by the statements of many of his colleagues. Even the said Shri Z. Khawzawl admitted to consuming liquor but denied that he did so in the office. Seven employees played neutral while deposing. Only one employee, namely Mr. B. Bhattacharjee, UDC attributed the action of termination to the disliking of the said Shri Z. Khawzawl developed by the Dy. Resident Commissioner at a later stage after taking the charge of the Silchar House. The misdemeanor of the kind reported by the employees including the Dy. Resident Commissioner, in the office that runs the Mizoram House, Silchar, where public-men, women and children and government officials, make temporary halt would be wholly unacceptable. Of course, the said Shri Z. Khawzawl has spent substantial time as muster roll employee. But the fact that he has continued on muster roll for such as long time may not be because he has been a disciplined worker. Perhaps the system ignored his infractions. On consideration of all the facts brought on record, it is concluded that re-engagement of Shri Z. Khawzawl as Muster Roll employee under Mizoram House, Silchar would subversive to discipline in the office. Perhaps the system ignored his infractions. On consideration of all the facts brought on record, it is concluded that re-engagement of Shri Z. Khawzawl as Muster Roll employee under Mizoram House, Silchar would subversive to discipline in the office. It is therefore hereby decided that the said Shri Z. Khawzawl, ex-Muster Roll employee in Mizoram House Silchar does not deserve to be re-engaged.” 21. Accordingly, in view of the reasons stated above, the impugned Order dated 22.05.2013 issued by the respondent No. 2 is hereby set aside. However, as there is some delay and laches in approaching this Court, no order for re-engagement is being issued by this Court. The respondents are directed to serve copies of the statements of the 16 other employees/colleagues of the petitioner, who had stated that the petitioner was under the influence of alcohol during office hours and that he consumed liquor during office hours. The petitioner should then be given an opportunity of making a representation against the statements made by the 16 other employees mentioned above. The respondents shall thereafter take a fresh decision with regard to whether the petitioner should be reengaged as an MR employee. The State respondents shall furnish copies of the statements of the 16 employees and other employees mentioned in the impugned Order dated 22.05.2013, within a period of three weeks from the date of receipt of a certified copy of this order, giving the petitioner reasonable time to make a representation against the same. The respondents shall thereafter take a decision on the petitioner’s representation within a further period of three weeks from the date of receipt of the petitioner’s representation and decide whether the petitioner is be reengaged as an MR employee. The writ petition is accordingly disposed of.