The court emphasized that the Notifications dated 04.08.2015 and 12.08.2015 did not require passing the Departmental Examination for Non-Functional promotion from Junior Grade to Senior Grade of the MES, and directed the State respondents to count the petitioners' seniority w.e.f. 04.08.2015 as per the Notifications.

JUDGMENT

Nelson Sailo, J. - This order will disposed of all the three (3) writ petitions since common questions and identical issues are involved.

2. Heard Mr. A.R. Malhotra, learned counsel for the petitioners in WP(C) Nos. 98 & 102/2018 and Ms. Vanlalhriati, learned counsel for the petitioners in WP(C) No. 100/2018. Also heard Mr. L.H. Lianhrima, learned Senior Counsel assisted by Ms. Ruth Lalruatfeli, learned counsel for the respondent Nos. 5 to 29 in WP(C) No. 98/2018 and for the respondent Nos. 5 to 26 in WP(C) No. 100/2018. I have also heard Mrs. Linda L. Fambawl and Ms. Mary L. Khiangte, Govt. Advocates for the State respondents in all the writ petitions.

3. The dispute involved in these writ petitions is with regard to interse-seniority between the petitioners and the private respondents in the Senior Grade of the Mizoram Engineering Service (MES for short). In WP(C) Nos. 98 and 100 of 2018, the dispute on seniority is between Graduate Engineers while in WP(C) No. 102 of 2018, it is between the Diploma Engineers. The facts set out in WP(C) No. 98 of 2018 are being narrated for the sake of brevity and convenience.

4. The case of the writ petitioners is that the respondents on account of stagnation of Engineers in the Junior Grade of the MES came up with a Notification dated 04.08.2015 (Annexure-3), wherein it was provided that Engineers in the Junior Grade of the MES will be allowed Non-Functional up-gradation to the Grade Pay of Rs. 6,600/- subject to completion of unblemished continuous service for at least 10 years in the Junior Grade. On such up-gradation, they will be designated as Senior Sub-Divisional Officer/Senior Assistant Engineer. Besides this, any member of the Junior Grade of the MES who have already availed the Second Stage in the MACP, 2010 shall be deemed to have been upgraded on Non-Functional basis to the Senior Sub-Divisional Officer/Senior Assistant Engineer Grade. In fact, Notification dated 04.08.2015 was issued in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India.

5. In continuation to the Notification dated 04.08.2015, a Screening Committee was constituted to consider eligible Junior Engineers for NonFunctional up-gradation vide Notification dated 12.08.2015 (Annexure-4). Besides constituting a Screening Committee through the said Notification, a bench mark for such up-gradation as prescribed under paragraph 3.5 (i) of the DPC guidelines issued vide Office Memorandum dated 15.07.2010 was also notified. Paragraph 3.5 (i) of the Office Memorandum provides that "Very Good ? shall be the bench mark for Group-A and Group-B Gazetted posts while "Good ? shall be the bench mark for Group-B and Group-C posts.

6. While up-gradation of the Junior Engineers of the MES including the petitioners were being considered, a clarification was sought by the Deputy Secretary, Public Works Department (PWD) from the Department of Personnel & Administrative Reforms (General Service Wing) [DP&AR (GSW)] (respondent No. 3) vide communication dated 27.08.2015 (Annexure-6). The Under Secretary, DP&AR vide ID No. A 12018/28/2013- P&AR (GSW) dated 06.10.2015 (Annexure-7) while giving the clarification also informed the PWD that the eligibility criteria for promotion to Senior Grade of the MES as per Rule 22(5) of the Mizoram Engineering Services Rules, 2013 (Rules of 2013) should be duly followed irrespective of the reservation for Graduate and Non-graduate Engineers.

7. Rule 22(5) of the Rules of 2013 provides that vacancies in the Senior Grade is to be filled up from members in the Junior Grade who have completed not less than 5 years continuous regular service in the grade and who have passed Departmental Examinations in Engineering and Accounts. According to the petitioners, such was not the requirement as per Notification dated 04.08.2015 and therefore, it cannot be introduced by way of administrative instruction since Notification dated 04.08.2015, was issued in exercise of their power