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2013 Supreme(Gau) 582
Gauhati High Court
C.R. Sarma, J.
P.L. Liandinga and Ors. -Appellant
Versus
State of Mizoram and Ors. -Resopndent
WP(C) No.52 of 2011
Decided On : 20-09-2013
For the petitioner: Mr. RC. Prusty
For the respondents: Mr. Aldrin Lallawmzuala and Mr. A.R.Malhotra
Headnote:
Constitution of India, 1950 – Article 226 – Service Laws – Seniority List – By preferring this Writ petition, under article 226 of Constitution of India, the petitioners, who are working as Programme Officer, Integrated Child Development Scheme under Social Welfare Department, Government of Mizoram, have challenged the Inter se seniority List, issued – By the Government of Mizoram, Social Welfare Department vide Notification whereby the private respondent No. 6 has been placed at Serial No. 1 and the petitioners have been placed at Serial Nos. 2, 3 and 4, respectively – Petitioners have also prayed for a direction for drawing up a Final Common Inter se seniority List, counting the services of the petitioners from the date of their joining in the post of P.O., i.e., with effect from 10.8.1986, 21.8.1986 and 6.8.1993 in respect of writ petitioner Nos. 1, 2 and 3, respectively and placing them above the private respondent No. 6 – Held, Petitioners’ claim for seniority over private respondent cannot be accepted, because by virtue of his promotion to a higher post, prior to the attaining the same rank of the petitioners, the private respondent acquired seniority in the rank – Persons allowed to hold such higher post at subsequent period, in fixation of seniority – Because by virtue of promotion prior to the person enjoining similar pay scale, the date of promotion should be the determining factor and not the pay scale – Petitioners’ appointment as CDPO and P.O. was not made as per any service rules, inasmuch as, no rule was inexistence at the relevant time – Rules come into force with effect from 2002 – But the promotion of the private respondent, as Centre Director, was made as per rules, i.e., on recommendation of the MPSC – Seniority attained by private respondent, by virtue of such promotion cannot be denied – That apart, in view of holding higher post by the private respondent, prior to the petitioners, the length of service in feeder post rendered by the petitioners cant be criteria for determining their seniority over the private respondent – No error by showing the private respondent as senior to the petitioners, in the seniority list – Court find no merit in this writ petition, requiring interference with the impugned Inter se seniority List – Writ Petition Dismissed
2.1 have heard Mr. PC. Prusty, learned counsel, appearing for the writ petitioners. I have also heard Mr. Aldrin Lallawmzuala, learned Additional Advocate General, Mizoram, appearing for the State respondent Nos. 1,2,3,4 and 5 and Mr. A.R. Malhotra, learned counsel, appearing for the private respondent.
3. The writ petitioners' case, in brief, as may be required for disposal of this writ petition, may be stated as follows:
(i) By Notification No. SWD. 18/79/81, dated 16.12.1982 (Annexure 6 to the writ petition), the Government of Mizoram appointed the - writ petitioners as Child Development Project Officers (hereinafter referred to as, "CDPO") under ICDS Projects, on Ad hoc basis for a short period, subject to regularization in accordance with the Recruitment Rule to be approved by the Government in due course.
(ii) By another Notification No. SWD. 28/80/106, dated 13.09.1983 (Annexure 7 to the writ petition), the private respondent was appointed, on Ad hoc basis, as District Social Welfare Officer ('DSWO'), on the same terms and conditions, as has been made in respect of the writ petitioners. The writ petitioners' services were confirmed as CDPO with effect from 16.12.1984 and the services of Private respondent, as DSWO was confirmed with effect from 14.9.1985.
(iii) By letter dated 20.3.1986 (Annexure 11 to the writ petition), the Government of India, Ministry of Human Resource (Department of Women's Welfare) confirmed the following suggestions that "(i) only the posts of CDPOs should be the feeder posts for promotion as Programme Officer under ICDS, (ii) so long as pay scales of Programme Officer and CDPO are the same, the seniormost CDPO should be kept as Programme Officer and (iii) if the pay scale of Programme Officer becomes higher than that of CDPO, the post of Programme Officer should be filled up on a promotion basis".
(iv) In view of the said clarification and pay scale being identical, the Government by Notification No, SWD. 28/80/158, dated 17.6.1986 (Annexure 12 to the writ petition), transferred and posted the petitioner Nos. 1 and 2 as P.O of State ICDS Cell and District ICDS Cell respectively. Similarly, by Notification No. A. 11012/20/93- SWD, dated 27.7.1993 (Annexure 13 to the writ petition), the petitioner No. 3 was transferred to the post of P.O. Div. ICDS Lunglei.
(v) By Notification, dated 30.12.2003, the private respondent was posted as Centre Director with effect from 26.6.2003 and subsequently, the date of giving effect to the said promotion was modified as the date of joining, i.e., 2.1.2004.
(vi) By Notification No. A. 13011/2/93--SWD, dated 10.2.2004 (Annexure 18 to the writ petition), services of the petitioner Nos. 1, 2 and 3 as P.O.ICDS, were regularized with effect from 10.8.1986, 21.8.1986 and 6.8.1993 respectively.
(vii) By Notification dated 28.1.2004, while upgrading the pay scale of P.O. to the scale of Rs. 10,000-325-15,000 p.m., i.e., the scale of the Centre Director with effect from 2.1.2004, it was clarified that the post of P.O. would cease to be the feeder post for the post of Centre D
