The fixation of the crucial date for determining eligibility for promotion through the Office Memorandums dated 15.07.2010 and 11.05.2012 was found to be unsustainable and was set aside, as it was held to be only for administrative convenience and not a requirement under the MES Rules.

JUDGMENT

Nelson Sailo, J. - This order will dispose of both the writ petitions as they involve similar and identical issues. There are 4 (four) petitioners in WP(C) No. 96/2017 while there is only 1 (one) petitioner in WP(C) No. 90/2018. As for the respondents, they are one and the same in both the cases.

2. Heard Mr. A.R Malhotra, learned counsel for the writ petitioners and Ms. Mary L. Khiangte, learned Government Advocate appearing for the State respondent Nos. 1 to 4. Also heard Mr. J.C Lalnunsanga, learned Standing Counsel, Mizoram Public Service Commission (MPSC) appearing for respondent No. 5 and Mr. L.H Lianhrima, learned Senior Counsel assisted by Ms. Ruth Lalruatfeli, for the respondent No. 7.

3. The case of the writ petitioners in brief is that on the recommendation of the MPSC, they were appointed to the post of Asst. Engineer/Sub-Divisional Officer (AE/SDO) in the Minor Irrigation Department (Irrigation Department), Government of Mizoram in order of merit and with effect from the date of their joining service. The post of AE/SDO is classified as General State Service, Group "A" Gazetted and Non-ministerial. The State Government, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, framed the Mizoram Engineering Service Rules, 2013 (MES Rules) and the same came into force with effect from the date of its publication in the Mizoram Gazette i.e., 23.09.2013. Apart from the Irrigation Department, the MES Rules is applicable to other Departments such as Public Works, Public Health Engineering, etc.

4. That with the framing of the MES Rules, the petitioners and the private respondents were en-cadred in the Junior Grade (AE/SDO) of the service. Rule 22(5) of the MES Rules provides for the criteria for promotion from the Junior Grade is to the Senior Grade. In order to be eligible for promotion, one must have completed not less than 5 (five) years of continuous regular service in the Junior Grade and should have passed Departmental Examination in Engineering and Accounts conducted by the MPSC. According to the petitioners, against the 2 (two) posts available in the Senior Grade meant for graduate engineers, despite being qualified in terms of the MES Rules, they were not considered for promotion on the ground that they did not pass the Departmental Examinations on the crucial date i.e. 01.04.2017 as provided in the Office Memorandum dated 11.05.2012 (Annexure-14), issued by the Department of Personnel and Administrative Reforms (General Service Wing) [DP & AR (CSW)]. As such, they have challenged the said Office Memorandum and also the earlier Office Memorandum dated 15.07.2010 (Annexure-13) issued by the same Department, by which 1st of January of the vacancy year was fixed as the cut-off date for determining the eligibility for promotion.

5. Mr. A.R Malhotra, the learned counsel, by referring to the Notification dated 26.09.2011 (Annexure-1) submits that the petitioners as well as the private respondents were appointed by the said notification. The names of petitioner Nos. 1 to 4 in WP(C) No. 96/2017 appear at serial No. 2, 3, 5 & 6 respectively while the petitioner in WP(C) No. 90/2018 at serial No. 1. The private respondent No. 6 is at serial No. 7 and in case of the respondent No. 7, he was appointed on 28.02.2012. The learned counsel by further referring to the Notification dated 15.07.2010 (Annexure-13) submits that a final inter-se seniority list of AE/SDO was fixed by the respondent No. 3 where the petitioner in WP(C) No. 90/2018 is placed at serial No. 4 and the petitioners in WP(C) No. 96/2017 are placed at serial Nos. 5, 6, 8 & 9 respectively. As for the private respondent Nos. 6 & 7, they are placed at serial No. 10 & 12 respectively. There is therefore no dispute to the fact that both the private respondents are junior to the petitioners in service. However, in view of the impugned Office Memorandum dated 11.05.2012 fixing 01.04.2017 as the cut-off date for being eligibl