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2021 Supreme(Gau) 67

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM : NAGALAND:MIZORAM & ARUNACHAL PRADESH) AIZAWL BENCH
SONGKHUPCHUNG SERTO, J.
Er. R. Lalrinkima, Senior Executive Engineer (Civil), Power & Electricity Department – Appellant
Versus
The State of Mizoram – Respondent
WP(C) No. 74 of 2020
Decided on : 22-03-2021

Advocate Appeared:
For the Appellant :Mr. S. Pradhan, Ms. Vanneihsiami, Ms. Lalthanmawii. Advocates
For the Respondent: Ms. Mary L. Khiangte, Mrs. Dorothy Lalrinchhani

Point of law: Promotion to higher post is only an incident of service and no Government servant has a vested right to be promoted to higher post. To put it differently, though a Government servant may have the right to be considered for promotion at certain time or stage of his or her service career he or she has no vested right to be promoted

Headnote:
Promotion to the post - Post by absorbing – Condo nation of delay - Whether the Government’s decision to absorb the respondent substantive post of Superintending Engineer lying vacant and to abolish the remaining one supernumerary post of Superintending Engineer is within the domain of its policy making power or not –
Finding of the Court: In a country governed by democratic form of government, policy making which includes changing or alteration or modification of the same is the domain of the government which is elected by the people. Creation of post and services is also a policy matter and decision to such policy matters are taken by governments primarily for serving public interest and not only for providing employment and promotion - Therefore, to decide whether a post is still required or is no longer required and to take a call to either retain or abolish it is a policy matter and, it is very much within the domain of the government - As long as policy or policies made by governments are not volatile of fundamental rights or civil rights or are not so unreasonable, arbitrary and bias, Courts by exercising self restraint have rarely interfered in that domain of governments. In this case, the petitioner has not shown in any way that the decision of the government has violated any of his fundamental rights or civil rights or the policy decision is unreasonable, bias and arbitrary - Nor has this Court find any of it. Rather, it appears to be fair enough and is in the interest of the public because for a small State like Mizoram stream lining of cadre strength is required so that limited public resource is not wasted - As stated already posts of supernumerary Superintending Engineer were created to meet a certain situation which arose at that time and that situation is going to be no more if and when the respondent No.6 is absorbed in the vacant post of substantive/sanction post of Superintending Engineer - Therefore, at the cost of repetition it may be stated once again that the Government of Mizoram would be within its policy making power if it takes a call to absorb the respondent vacant substantive or sanction post and to abolish the supernumerary post –
Result: petition is disposed

JUDGMENT :

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 Rule-22(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 submissions relied on t

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2021 Supreme(Gau) 67

Cases Referred (4)