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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) AIZAWL BENCH : AIZAWL
NELSON SAILO, J.
Smt. Laltlanthangi Ralte and Ors. – Appellants
Versus
The State of Mizoram & Ors. – Respondent
WP(C) No. 98, 100, 102 of 2018
Decided on : 15-01-2021
Constitution of India - Article 309 – Circumstantial evidence - Sake of brevity and convenience – Jurisdiction - Dispute involved in these writ petitions is with regard to inter-se-seniority between petitioners and the private respondents in Senior Grade of the Mizoram Engineering Service - In dispute on seniority is between Graduate Engineers while in it is between the Diploma Engineers - Facts set out in are being narrated for the sake of brevity and convenience - Case of writ petitioners is that the respondents on account of stagnation of Engineers in Junior Grade of MES came up with a Notification wherein it was provided that Engineers in Junior Grade of the MES will be allowed Non-Functional up-gradation to Grade Pay subject to completion of unblemished continuous service for at in the Junior Grade –
Finding of the Court: From a plain reading of the two (2) Notifications, it is clear that there is no requirement for one to pass Departmental Examination in order to be considered and given Non-Functional promotion from Junior Grade to Senior Grade. This can be clearly appreciated from the fact that the requirement to pass Departmental Examination in order to be given Non-Functional promotion from Junior Grade to Senior Grade of the MES only came to be prescribed in the MES Rules of 2017, which came into force - This would therefore go to show that there was no stipulation for passing of the Departmental Examination in Accounts and Engineering in order to get promotion on Non-Functional basis for the period between admitted position is that all the petitioners have been screened by the constituted Screening Committee and thereafter they were given Non-Functional promotion but only from the date of passing Departmental Examination. There can be no argument with the well settled principle of law that administrative or executive instruction cannot override the statutory provision of law and that it is only where the statute is silent that such administrative or executive instruction can be invoked to compliment and not override the statute - Clarification of the DP&AR impugned by the petitioners in my considered view is not an executive or administrative instruction but merely a reiteration of the provisions of Rule 22(5) of Rules of 2013 as rightly pointed out by learned Senior Counsel. However, the fact remains that the petitioners were given Non-Functional promotion to the Senior Grade of the MES in terms of the Notifications - Therefore, Rule 22(5) of the Rules of 2013 which provides for Functional promotion will have no application to their case –
Result: Order accordingly
JUDGMENT :
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 inter-se-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 Non-Functional 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 a
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