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2024 DIGILAW 720 (GAU)

Aldrin Malsawmtluanga v. State of Mizoram

2024-05-20

MICHAEL ZOTHANKHUMA

body2024
JUDGMENT : Heard Mr. A.R. Malhotra, learned counsel for the petitioner. Also heard Mrs. Mary L. Khiangte, learned Government Advocate appearing for the respondent Nos. 1 to 5 and Mr. B. Lalramenga, learned counsel appearing for the respondent No. 7. None appears for the respondent No. 6. 2. The petitioner is aggrieved with the final inter-se-seniority list dated 18.01.2019 of Scientific Officers under the Science & Technology Department, Government of Mizoram, wherein the petitioner had been placed at Serial No. 3 and the respondent Nos. 7 & 8 have been placed at Serial No. 1 & 2 respectively. The petitioner is also aggrieved with the relaxation of Column 12 of Annexure-1 of the 2016 Rules for consideration of promotion of the private respondents to the post of Senior Scientific Officers in the Directorate of Science & Technology and their consequential promotion order. 3. The petitioner’s counsel submits that the respondent Nos. 7 & 8 had been appointed to the post of Scientific Officers under the Mizoram Council of Science, Technology & Innovation, which was subsequently renamed as Mizoram Science, Technology & Innovation Council, herein after referred to as MISTIC (respondent No. 5) on 18.07.1994 and 28.09.2001 respectively. The appointments of the respondent Nos. 7 & 8 had not been made through any selection process and the same had not been made in pursuant to any advertisement being issued in the electronic media and the newspapers. On the other hand, the petitioner was appointed as Scientific Officer in the respondent No. 5 organisation on 19.08.2002, in pursuant to an advertisement and a proper selection process. 4. The petitioner’s counsel submits that the respondent Nos. 7 & 8 were subsequently promoted to the post of Senior Scientific Officers in MISTIC on 09.05.2013 and 23.05.2013 respectively. Thereafter, the respondent Nos. 7 & 8 and the petitioner were attached to the Directorate of Science & Technology as Senior Scientific Officers and Scientific Officer respectively, vide office Order dated 13.05.2013. The respondent Nos. 7 & 8 and the petitioner were subsequently posted as Scientific Officers under the Directorate of Science & Technology on deputation, vide Notification dated 29.12.2015 issued by the Secretary to the Government of Mizoram, Planning and Programme Implementation Department, after relaxation of para 2.2 of the OM dated 02.07.2014 in relation to the respondent Nos. 7 & 8. 5. 7 & 8 and the petitioner were subsequently posted as Scientific Officers under the Directorate of Science & Technology on deputation, vide Notification dated 29.12.2015 issued by the Secretary to the Government of Mizoram, Planning and Programme Implementation Department, after relaxation of para 2.2 of the OM dated 02.07.2014 in relation to the respondent Nos. 7 & 8. 5. The petitioner’s counsel submits that in terms of para 2.2 of the OM dated 02.07.2014, a person in a higher grade pay/scale of pay than a Scientific Officer, could not be appointed on deputation to a post in a lower grade pay/scale of pay. As such, the respondent Nos. 7 & 8, who were Senior Scientific Officers having a higher pay scale, could not ordinarily be deputed as Scientific Officers in the Directorate of Science & Technology. Accordingly, Clause 2.2 of the OM dated 02.07.2014 was relaxed for the respondent Nos. 7 & 8, to enable them to be sent on deputation. He submits that the relaxation of Clause 2.2 of the OM amounted to the respondent Nos. 7 & 8 foregoing their promotion as Senior Scientific Officers and as such, the respondent Nos. 7 & 8 would have to be considered as Scientific Officers prior to their deputation for all purposes. He further submits that the vide notification dated 20.12.2017, the deputation period of the petitioner and the private respondents was extended for 2 years. As the service of the respondent Nos. 7 & 8 in MISTIC was not preceded by any advertisement or selection, their service as Scientific Officers in MISTIC was not regular service. As such, they were to be considered junior to the petitioner as Scientific Officers, who was selected after having undergone a selection process, pursuant to an advertisement. 6. The petitioner’s counsel also submits that the Mizoram Planning & Programme Implementation Department (Science & Technology) (Group A Post) Recruitment (Amendment) Rules, 2016, herein after referred to as the ‘2016 Rules’, provided that the post of Scientific Officer was to be filled up by direct recruitment or by deputation. The 2016 Rules was thereafter amended vide the Mizoram Planning & Programme Implementation Department (Science & Technology) (Group A Post) Recruitment (Amendment) Rules, 2017, herein after referred to as the ‘2017 Rules’, by which column 11 & 12 of Annexure-1 was amended. The 2016 Rules was thereafter amended vide the Mizoram Planning & Programme Implementation Department (Science & Technology) (Group A Post) Recruitment (Amendment) Rules, 2017, herein after referred to as the ‘2017 Rules’, by which column 11 & 12 of Annexure-1 was amended. Annexure-1 was amended by including absorption as a means for recruitment to the post of Scientific Officer. Further, the absorption was to be made from the Officers on deputation against the post of Scientific Officer, Directorate of Science & Technology. 7. Thereafter, an advertisement dated 23.01.2018 was issued for filling up 4 post of Scientific Officer in the Directorate of Science & Technology, by way of absorption. The petitioner and the private respondents were considered by the MPSC and on their recommendation, the Government issued Notification dated 30.07.2018, absorbing the private respondents and the petitioner as Scientific Officers in the Directorate of Science & Technology. 8. The petitioner made a representation to place him above the private respondents in the seniority list to be made by the Government. However, in the provisional inter-se-seniority list of Scientific Officers issued vide Notification dated 03.09.2018 by the Planning & Programme Implementation Department, herein after referred to as the ‘PPID’, the respondent Nos. 7 & 8 were placed at Serial Nos. 1 & 2 and the petitioner was placed at Serial No. 3. Despite a representation being made by the petitioner against the provisional inter-se-seniority list, the placement of the parties herein remained unchanged in the impugned final inter-se-seniority list dated 18.01.2019. 9. The petitioner’s counsel submits that subsequent to the impugned final inter-se-seniority list, the Governor of Mizoram was pleased to allow one time relaxation of Column 12 of the Annexure-1 of the 2016 Rules and its amendment in favour of the respondent Nos. 7 & 8, for consideration of their promotion from Scientific Officers to Senior Scientific Officers in the Directorate of Science & Technology. The 2016 Rules and its amendment required Scientific Officers to have 5 (five) years of regular service in the Grade, to be promoted to the post of Senior Scientific Officers. As the respondents had only 2 (two) years of services in Scientific Officers after their absorption, the relevant Rule was relaxed to consider them for promotion to the post of Senior Scientific Officers. Subsequently, on the recommendation of the MPSC, the Governor of Mizoram was pleased to promote the respondent Nos. As the respondents had only 2 (two) years of services in Scientific Officers after their absorption, the relevant Rule was relaxed to consider them for promotion to the post of Senior Scientific Officers. Subsequently, on the recommendation of the MPSC, the Governor of Mizoram was pleased to promote the respondent Nos. 7 & 8 as Senior Scientific Officers, vide Notification dated 30.12.2020. 10. The petitioner’s counsel submits that the final inter-se-seniority list shows that the seniority of Scientific Officer has been made on the basis of their appointment/promotion to the post of Scientific Officer. As the appointment of the private respondents in MISTIC had been made in the absence of any advertisement and without any selection process, the services undergone by them in MISTIC cannot be counted, while fixing the seniority of Scientific Officers under the Directorate of Science & Technology. Consequently, the petitioner would have to be considered to be senior to the private respondents, as he was appointed as Scientific Officer on the basis of an advertisement and a selection process in MISTIC. Thus, the petitioner should have been senior to the private respondents and he should have been considered for promotion to the post of Senior Scientific Officer in the Directorate of Science & Technology. 11. In support of his submission, he has relied upon the judgment of the Supreme Court in the case of Sub-Inspector Rooplal and Another Vs. Lt. Governor through Chief Secretary, Delhi and Others, reported in (2000) 1 SCC 644 (para 19, 20 & 23) and in the case of Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and Others, reported in (2006) 2 SCC 482 (para 12). 12. Mrs. Mary L. Khiangte, learned Government Advocate appearing for the respondent Nos. 1 to 5 submits that in terms of para 6 of the affidavit-in-opposition filed by the State respondents on 16.08.2021, the seniority of Scientific Officers absorbed into Government service had been made on the recommendation of the MPSC and was fixed as per the order of merit duly recommended by the MPSC. She further submits that the petitioner has not challenged the appointment orders of the private respondents as Scientific Officers under the MISTIC and as such, the petitioner cannot be allowed to challenge any consequential orders. She further submits that the petitioner has not challenged the appointment orders of the private respondents as Scientific Officers under the MISTIC and as such, the petitioner cannot be allowed to challenge any consequential orders. She also submits that the meeting minutes of the MPSC shows that the petitioner and the private respondents had been considered for absorption, after the ACR’s of the candidates were carefully scrutinized and details of the assessment were made. It was on the basis of this assessment that the MPSC had recommended absorption of the candidates to the post of Scientific Officers under the PPID as follows:- 1. K. Lalrammuana 2. F. Lalramchuana 3. Dr. Aldrin Malsawmtluanga (petitioner) 4. Edward Lalzuithanga. 13. The learned Government Advocate submits that there were no Recruitment Rules at the time the petitioner and the private respondents were appointed as Scientific Officers under the MISTIC and as such, the petitioner cannot claim that he should be made senior to the private respondents in the absence of Rules. She further submits that the petitioner cannot be allowed to agitate the selection of the private respondents as Scientific Officers in the MISTIC, inasmuch as, there were no trained personnel who could be appointed to the said post at the relevant point of time. The private respondents were sent by the State Government for training and an advertisement had been issued for selection of candidates for training purposes in respect of the respondent No. 8. She accordingly submits that there was no infirmity with the selection of the private respondents as Scientific Officers under the MISTIC, vide the Notification and Order dated 18.07.1994 and 28.09.2001. She further submits that the petitioner cannot be allowed to blow hot and cold, as the petitioner was not appointed as per any Recruitment Rules also. 14. Mr. B. Lalramenga, learned counsel for the private respondents, on the other hand submits that the private respondents have been appointed as the Scientific Officers on 18.07.1994 and 28.09.2001 in the MISTIC and they have continued uninterrupted service since then, till their promotion as Senior Scientific Officers in the year 2013. He submits that there was a selection process for the selection of the private respondents to undergo training, which was a required eligibility criteria for holding the posts of Scientific Officers. He submits that there was a selection process for the selection of the private respondents to undergo training, which was a required eligibility criteria for holding the posts of Scientific Officers. He submits that the appointment of the private respondents as Scientific Officers and their promotion as Senior Scientific Officers not being challenged by the petitioner, the petitioner cannot have any claim on being senior to the private respondents, as their substantive posts in the MISTIC was one grade higher than the petitioner. He also submits that the pay of the private respondents as Senior Scientific Officers were protected, as per the Notification dated 27.05.2019 issued by the Secretary to the Government of Mizoram, PPID. 15. He further submits that the private respondents have been working since 1994 and 2001 as Scientific Officers in MISTIC, till their promotion as Senior Scientific Officers in the year 2013 in MISTIC. Even after their absorption to the posts of Scientific Officers in the Directorate of Science & Technology, their pay as Senior Scientific Officers have been protected, vide Notification dated 27.05.2019 issued by the Secretary to the Government of Mizoram, PPID, where it shows that the basic pay of the respondent Nos. 7 & 8 is higher than the basic pay of the petitioner. As such, the petitioner cannot be said to be senior to the private respondents for the service rendered by them in the MISTIC. 16. Mr. A.R. Malhotra, learned counsel for the petitioner submits that he has no comments to make in relation to the Notification dated 27.05.2019 issued by the Secretary to the Government of Mizoram, PPID. 17. I have heard the learned counsels for the parties. 18. The facts of the case, as narrated by the petitioner’s counsel shows that the respondent Nos. 7 & 8 have been appointed prior to the petitioner in MISTIC, as Scientific Officer. No Recruitment Rules had been made during the appointment of the private respondents and the petitioner as Scientific Officers in MISTIC. The petitioner has not put to challenge the appointments of the private respondents as Scientific Officers and their promotion orders as Senior Scientific Officers in MISTIC. The only prayer the petitioner has made in the writ petition is that the inter-se-seniority list dated 18.01.2019 should be set aside and he should be placed above the private respondents. The petitioner has not put to challenge the appointments of the private respondents as Scientific Officers and their promotion orders as Senior Scientific Officers in MISTIC. The only prayer the petitioner has made in the writ petition is that the inter-se-seniority list dated 18.01.2019 should be set aside and he should be placed above the private respondents. The second prayer is for setting aside the Notification dated 21.10.2020, by which the Governor of Mizoram was pleased to allow one time relaxation of Column 12 of Annexure-1 of the 2016 Rules in favour of the private respondents, for consideration of their promotion from Scientific Officer to Senior Scientific Officer, after their absorption in the Directorate. The third prayer made by the petitioner is for setting aside the Notification dated 30.12.2020, by which the private respondents have been promoted to the post of Senior Scientific Officers on the recommendation of the MPSC. 19. In the case of Amarjeet Singh Vs. Devi Ratan, reported in 2010 1 SCC 417 (28-31), the Supreme Court has held that unless the basic order is challenged, the consequential order/s cannot be challenged. In the case of Roshan Lab Vs. International Airport Authority of India, reported in 1980 Supp SCC 449, the Supreme Court held that a party is under a legal obligation to challenge the basic order and only if the same is found to be wrong, consequential orders may be examined. In this case, the consequential orders would be the subsequent promotion of the private respondents as Senior Scientific Officers in the MISTIC on 09.05.2013 and 23.05.2013 respectively. The final inter-se-seniority list that is under challenge is also a consequential order. 20. In the case of Sub-Inspector Rooplal and Another(supra), the Supreme Court was to consider whether a Sub-Inspector appointed in the Border Security Force, when transferred on deputation to the Delhi Police and being permanently absorbed in the transferred post, is entitled to count his substantive service as Sub-Inspector in the BSF for the purpose of his seniority, in the cadre of Sub-Inspector (Executive) in the Delhi Police. The Supreme Court held that any rule, regulation or executive instruction which has the effect of taking away the service rendered by a deputationist in an equivalent cadre in the parent department, while counting his seniority in the deputed post, would be violative of Articles 14 and 16 of the Constitution. The Supreme Court held that any rule, regulation or executive instruction which has the effect of taking away the service rendered by a deputationist in an equivalent cadre in the parent department, while counting his seniority in the deputed post, would be violative of Articles 14 and 16 of the Constitution. It held that the right of persons to count their service from the date of their regular appointment in the post of Sub-Inspector in BSF, while computing their seniority in the cadre of Sub-Inspector (Executive) in the Delhi Police, was to be restored. 21. In the case of Union Public Service Commission(supra), the Supreme Court has held that the appointment to any post under the State can only be made after a proper advertisement has been made and after having a proper selection process. Any regular appointment made on a post under the State or Union, without issuing any advertisement and without holding a selection process would be violative of Article 16 of the Constitution. 22. As can be seen from the facts stated above, the respondent Nos. 7 & 8 had been appointed as Scientific Officers in MISTIC before the petitioner. Even if this Court is to assume that the private respondents were appointed as Scientific Officers in MISTIC, without any advertisement being issued or any selection process having taken place, the petitioner has failed to challenge the appointment of the private respondents as Scientific Officers in MISTIC. The subsequent promotion of the private respondents as Senior Scientific Officers in MISTIC has also not been put to challenge. As the impugned final inter-se-seniority list of Scientific Officers in the Science & Technology Department, showing the private respondents above the petitioner, is taken to have been made on the basis of length of service under MISTIC, the petitioner has no case. The reason being the petitioner has not put to challenge the appointment orders of the private respondents as Scientific Officers, their promotion as Senior Scientific Officers in MISTIC and the seniority list dated 20.10.2015 of Senior Scientific Officers/Scientific Officers in MISTIC. This is in tune with the judgment of the Supreme Court in the case of Amarjeet Singh(supra),wherein it has held that unless the basic order is challenged, the consequential order/s cannot be challenged. 23. This is in tune with the judgment of the Supreme Court in the case of Amarjeet Singh(supra),wherein it has held that unless the basic order is challenged, the consequential order/s cannot be challenged. 23. The stand taken by the State Government is that the seniority of Scientific Officers in Science & Technology Department, Government of Mizoram, had been made on the basis of the recommendation made by the MPSC, which had been made in order of merit. Even if it is assumed that the appointments of the private respondents as Scientific Officers in MISTIC has not been made in pursuant to an advertisement or a selection process, their appointment orders and promotion as Scientific Officers and Senior Scientific Officers in MISTIC, not having been put to challenge, the consequential order/s cannot be challenged. This is due to the fact that all official decisions are presumed to be valid, unless it is set aside or otherwise held to be invalid by a Court of competent jurisdiction, as held by the Supreme Court in the case of Supreme Court in the case of State of Kerela Vs. M.K. Kunhikannan Nambiar, reported in (1996) 1 SCC 435 . 24. In view of the reasons stated above, this Court is of the view that if the seniority of the parties had been made on the basis of their dates of appointments in MISTIC, the private respondents would have to be considered to be senior to the petitioner. As stated earlier, the private respondents had been promoted to the post of Senior Scientific Officers in MISTIC. The final inter-se-seniority list of Senior Scientific Officers in MISTIC, published on 20.10.2015, shows that the private respondents were placed at Serial Nos. 1 & 2. On the other hand, in the final inter-se-seniority list of Scientific Officers in MISTIC, published on 20.10.2015, the petitioner was placed at Serial No. 1, while one Mr. Samuel Lalmalsawma was placed at Serial No. 2. The above two final inter-se-seniority lists were never put to challenge by the petitioner also. Be that as it may, by amending para 2.2 of the OM dated 02.07.2014, the private respondents were allowed to go on deputation as Scientific Officers in the Directorate of Science & Technology, vide Notification dated 29.12.2015, along with the petitioner. The above two final inter-se-seniority lists were never put to challenge by the petitioner also. Be that as it may, by amending para 2.2 of the OM dated 02.07.2014, the private respondents were allowed to go on deputation as Scientific Officers in the Directorate of Science & Technology, vide Notification dated 29.12.2015, along with the petitioner. The private respondents and the petitioner had thereafter been absorbed in the Directorate of Science & Technology on the same date, i.e., when the private respondents were holding the posts of Senior Scientific Officers in MISTIC, while the petitioner was one grade below, i.e., Scientific Officer. The private respondents accordingly did not forego their promotion as Senior Scientific Officers in MISTIC. As such, the petitioner’s prayer that the private respondents’ service in MISTIC cannot be counted is misplaced. The seniority of the private respondents over the petitioner after absorption in the Science & Technology Department, Government of Mizoram is clear, as has been stated by the State respondents in their affidavit, which is to effect that the parties herein were recommended for absorption by the MPSC, in order of merit. The MPSC recommendation shows the private respondents being placed above the petitioner. 25. As stated above, the service of the private respondents as Scientific Officers in MISTIC would have to be considered to be regular service, as no challenge to their appointment, promotion orders and final inter-se-seniority lists in MISTIC, has been made by the petitioner. Further, the pay of the private respondents in MISTIC was protected, in terms of the Notification dated 27.05.2019 issued by the Secretary to the Government of Mizoram, PPID, which shows the basic pay of the private respondents is higher than the basic pay of the petitioner. The Notification dated 27.05.2019 is made a part of the record and marked as Annexure-‘X’. 26. In view of the reasons stated above, this Court does not find any ground to interfere with the impugned final inter-se-seniority list dated 18.01.2019. 27. Column 12 of Annexure-1 of the 2016 Rules had been relaxed to enable the private respondent Nos. 7 & 8 to be considered for promotion as Senior Scientific Officers in the Science & Technology Department, Government of Mizoram, as they had only 2 (two) years of service in the Department after their absorption. 27. Column 12 of Annexure-1 of the 2016 Rules had been relaxed to enable the private respondent Nos. 7 & 8 to be considered for promotion as Senior Scientific Officers in the Science & Technology Department, Government of Mizoram, as they had only 2 (two) years of service in the Department after their absorption. The same goes to show that their seniority as Scientific Officers in the Science & Technology Department, Government of Mizoram been counted only with effect from their date of absorption in the Department. 28. The MPSC Meeting Minutes dated 28.12.2020, which recommended the promotion of the private respondents as Senior Scientific Officers in the Department of Science & Technology, shows that the post of Senior Scientific Officers is a selection post. If that be the case, there was no justification for not considering the case of the petitioner and any other eligible candidate/s for promotion to the post of Senior Scientific Officer, inasmuch as, the private respondents and the petitioner had been absorbed in the Directorate of Science & Technology on the same date and as such, the petitioner had the same years of service as Scientific Officer, as the private respondents. The seniority of the private respondents over the petitioner is clear, as their absorption had been made on the recommendation of the MPSC, in order of merit. 29. As it has been stated at the bar that usually 3 (three) candidates are considered for promotion for 1 (one) post, this Court is of the view that the non-consideration of the petitioner along with the private respondents for the post of Senior Scientific Officer does not appear to be fair. The relaxation of Rules for the petitioner should have been done along with the private respondents, as they were having the same length of service after absorption, the only difference being that the private respondents were not only senior to the petitioner in MISTIC, but they were in a higher grade than the petitioner. This Court is of the view that the non-consideration of the petitioner and other similarly situated persons may be unfair and unreasonable, if more than one candidate is required to be considered for promotion to the post of Senior Scientific Officer as per the rules and guidelines. This Court is of the view that the non-consideration of the petitioner and other similarly situated persons may be unfair and unreasonable, if more than one candidate is required to be considered for promotion to the post of Senior Scientific Officer as per the rules and guidelines. Accordingly, a review DPC should be held, to consider the case of the petitioner and other eligible persons, along with the private respondents, for promotion to the 2 posts of Senior Scientific Officers, from the date the private respondents were promoted, provided the length of service of other persons in the Department is the same as the private respondents. 30. Accordingly, the State respondents are directed to relax Column 12 of Annexure-1 of the 2016 Rules for the petitioner and other similarly situated persons, by relaxing the qualifying years of service required as Scientific Officer, for consideration for promotion to the post of Senior Scientific Officer. The State respondents should consider not only the petitioner, but also other eligible candidates for the said post of Senior Scientific Officer, in which the private respondents have been promoted, by giving the same relaxation as given to them. Further, the length of service of the other candidates as Scientific Officer, should have been the same as the private respondents. The same should be done by way of a review DPC. 31. The above direction is subject to the condition that in terms of the guidelines and rules followed by the State Government, more than 1 (one) candidate are required to be considered for promotion for 1 (one) vacant post of Senior Scientific Officer. The promotion of the private respondents as Senior Scientific Officers will be subject to the outcome of the review DPC. The entire exercise should be concluded at the earliest and preferably within a period of 3 (three) months from the date of receipt of a certified copy of this order. 32. The writ petition is accordingly disposed of.