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IN THE HIGH COURT OF GAUHATI (AIZAWL BENCH)
Songkhupchung Serto, J.
Er R Lalrinkima - Appellant
Versus
State Of Mizoram - Respondent
Writ Petition (C) No. 74 of 2020
Decided On : 22-03-2021
Promotion - Mizoram Engineering Services Rules 2013 - Rule22(3) - Judgment of the High Court of Himachal Pradesh - Article 14 and Article 16(1) of the Constitution - Policy making power of the government - Supernumerary post - Service jurisprudence
Fact of the Case:
The petitioner, an Executive Engineer, sought promotion to the post of Superintending Engineer vacated by another officer. The government had created supernumerary posts of Superintending Engineer, leading to a dispute over the promotion.
Finding of the Court:
The Court held that the government's decision to absorb the respondent to the vacant substantive post and abolish the supernumerary post was within its policy making power. It emphasized that promotion is an incident of service and not a vested right of an employee.
Issues: 1. Whether the government's decision to absorb the respondent to the vacant substantive post and abolish the supernumerary post is within the domain of its policy making power. 2. Whether the petitioner has a vested right to be promoted to the post of Superintending Engineer.
Ratio Decidendi: The Court emphasized the government's policy making power and the absence of a vested right to promotion, ultimately dismissing the writ petition.
Final Decision: The writ petition was dismissed, but the Court noted that the petitioner's claim for promotion should be considered as per service rules and at the earliest if there is a change of policy by the government.
JUDGMENT
Songkhupchung Serto, J. - Heard Mr. S. Pradhan, learned counsel for the petitioner, Ms. Mary L. Khiangte, learned Government Advocate appearing for the State respondents and Mrs. Dorothy Lalrinchhani, learned counsel for the respondent No. 6.
2. The Power & Electricity Department, Government of Mizoram had only 2(two) sanctioned post of Superintending Engineer (Civil) and they were filled up by one Er. T. Thanzagin and one Er. N. Ranjit Singh (respondent No. 7). In the year 2017, the rule namely, the Mizoram Engineering Services Rules 2013 was amended and the same rule governs all the Engineering Services in the State. As per the schedule of the new rule, the cadre strength of Selection Grade (Superintending Engineer) was only two. The respondent Nos. 5 and 6, who were Superintending Engineers but posted in other departments filed a writ petition praying for a direction to bring them to the Power & Electricity Department. Following the disposal of the writ petition, the Government of Mizoram vide Notification No. A. 11013/7/2007-P&E, dated 17.02.2012, created 2(two) supernumerary posts of Superintending Engineer (Civil) in the Office of Engineer-in-Chief, P & E Department and in those 2(two) posts, the respondent Nos. 5 and 6 were accommodated. In the said notification, a rider was added which stated as follows:-
"The posts shall stand abolished as and when vacated either by promotion or supernumerary pension of the incumbents whichever is earlier."
3. On 31.03.2020, Er. T. Thanzagin, who was occupying a substantive post of the Superintending Engineer retired on superannuation and to the post vacated by him, the respondent No. 5 was absorbed and thereafter on 17.12.2020, he was promoted to the post of Chief Engineer. After his absorption, one of the supernumerary post was abolished and in the meantime, the respondent No. 7 retired on 30.09.2020.
The petitioner is praying for consideration of his case for promotion to the post of Superintending Engineer vacated by Er. N. Ranjit Singh.
4. It is submitted by Mr. S. Pradhan that the petitioner has been serving in the post of Executive Engineer which is Junior Administrative Grade (Non-Functional) since 2008 and he is the senior most in that grade. Therefore, he is eligible and most deserving person for promotion to the post of Superintending Engineer as per Rule22(3) of the Mizoram Engineering Service (Amendment) Rules 2017, which prescribes 5(five) years of service in the grade of E.E. (Non-functional). However, the respondents are trying to fill up that post by absorbing the respondent No. 6 who is still holding the supernumerary post, thereby depriving him of his chance of being considered for promotion. The learned counsel further submitted that, since the petitioner has been serving in the grade of Executive Engineer for a longtime he deserves to be considered for promotion.
5. The learned counsel further submitted that in the notification issued for creation of the 2(two) supernumerary posts of Superintending Engineer the rider added was that the post shall stand abolished as and when vacated either by promotion or supernumerary pension of the incumbents whichever is earlier. Therefore, if the respondent No. 6 continues in that post he will not suffer any disadvantage including the chance of being promoted. Hence, he should be allowed to continue in that post without being shifted to the substantive post vacated by Er. N. Ranjit Singh till he retired or till he is promoted.
The learned counsel continued and submitted that according to the letter dated 22.01.2020 of the Engineer-in-Chief, P & E Department addressed to the Commissioner & Secretary, all the 3(three) posts of the Superintending Engineer are still required for proper and efficient functioning of the Department. Therefore, it can be concluded that the supernumerary post of Superintending Engineer is still required and the occasion for abolishing the same has not arisen.
6. The learned counsel, in support of his
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