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IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
MANISH CHOUDHURY, S. HUKATO SWU, JJ.
Sh. Zonunthara S/o Lalbiaksanga R/o – Khatla, Aizawal - Petitioner
Versus
The State of Mizoram - Respondents
Writ Petition no. 13/2017
Decided On : 02-03-2021
Constitution of India - Article 226 – Employment and service - Public Service Commission – Claim of compensation - case of the petitioner, as projected in the writ petition, is that petitioner was initially appointed as a Laboratory Bearer in the office of the Science Promotion Officer, under the Directorate of Education, Mizoram by an order against a post sanctioned - By an order petitioner was promoted as Laboratory Assistant on ad-hoc basis against a post sanctioned vide no. with effect from the date of his joining duties until further orders or till regular appointment was made, whichever was earlier. The ad-hoc appointment of the petitioner in the post of Laboratory Assistant in the office of the Science Promotion Officer came to be regularized with retrospective effect by an office order passed by the Director of School Education, MIZORAM –
Finding of the Court: Reverting back to the case in hand, it is found that the petitioner has been serving in the post of Science Consultant since services of the respondent no. 4 and the respondent no. 5 who were earlier serving as contractual employees, were regularized to the post of Science Consultant by an order - It is stated that post of Deputy Director Science Promotion Wing had fallen vacant on and on retirement of the then incumbent on superannuation - Post of Science Consultant is the feeder post for filling up the post of Deputy Director, Science Promotion Wing by way promotion - Upon consideration of aforesaid facts and circumstances, more particularly, the fact that the petitioner has been serving in the post of Science Consultant for a period of more than 9 years, we are of the considered opinion that as 2013 Rules itself has provided for the power of relaxation of any of the provisions of Rules with respect to any class or category of persons, the respondents should consider the case of the petitioner in terms of the provisions of Rule 8 quoted above, by taking into account all the relevant factors into consideration for purpose of further consideration of his case for promotion to the post of Deputy Director Science Promotion Wing and it is accordingly directed –
Result: Petition is disposed of
JUDGMENT & ORDER :
Manish Choudhury, J.
Heard Mr. A.R Malhotra, learned counsel for the petitioner and Ms. Linda L. Fambawl, learned Government Advocate for respondent nos. 1 to 3. Though service of notice on the respondent nos. 4 & 5 was deemed to be complete on 30.08.2017, none has appeared for the said two respondents since then as well as today on call.
2. The petitioner has preferred this writ petition under Article 226 of the Constitution of India challenging, inter-alia, the vires of that part of the Mizoram School Education Department (Group ‘A’ posts) Recruitment Rules, 2013 [‘the 2013 Rules’, for short] wherein it has been prescribed that the post of Deputy Director, Science Promotion Wing (SCERT) under the School Education Department, Govt. of Mizoram is to be filled up 100% by way of promotion from the grade of Science Consultant who possesses the minimum requisite qualification for direct recruitment for Science Consultant, with not less than 5 years of regular service in the grade. In the alternative, the petitioner has sought a direction to the respondents for consideration of his case for promotion to the post of Deputy Director, Science Promotion Wing (SCERT) with the invocation of relaxation clause contained in Rule 8 of the 2013 Rules.
3. The case of the petitioner, as projected in the writ petition, is that the petitioner was initially appointed as a Laboratory Bearer in the office of the Science Promotion Officer, Aizawl under the Directorate of Education, Mizoram by an order dated 31.07.1982 against a post sanctioned on 01.04.1981. By an order dated 29.04.1988, the petitioner was promoted as Laboratory Assistant on ad-hoc basis against a post sanctioned vide no. FMC.44/85(A) dated 18.07.1986 with effect from the date of his joining duties until further orders or till regular appointment was made, whichever was earlier. The ad-hoc appointment of the petitioner in the post of Laboratory Assistant in the office of the Science Promotion Officer came to be regularized with retrospective effect from 16.01.1989 by an office order dated 05.07.1989 passed by the Director of School Education, Mizoram. According to the petitioner, the order of promotion of the petitioner to the post of Laboratory Assistant was made in consonance of the provisions in the relevant recruitment rules existing at that point of time.
3.1. In the year 2004, the State Government, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, framed a set of rules viz. the Mizoram Education & Human Resources Development Department (SCERT Wing) (Group ‘B’ posts) Recruitment Rules, 2004 [‘the 2004 Rules’, for short] to regulate the matters relating to recruitment to the post of Science Supervisor under the Education and Human Resources Development Department (SCERT Wing), Govt. of Mizoram. As per the said 2004 Rules, the post of Science Supervisor was to be filled up 100% by way of promotion from the grade of Laboratory Assistant of Science Promotion Wing with 3 (three) years regular service in the grade and there was no specific prescription with regard to educational qualifications.
3.2. In terms of the said 2004 Rules and pursuant to direction made by this Court in a writ petition, W.P.(C) no. 63/2006 [Sri Zonunthara vs. State of Mizoram & 3 others] preferred by the petitioner, the petitioner was promoted to the post of Science Supervisor, SCERT (Science Promotion Wing) by an office order dated 30.05.2007 on the recommendation of the Departmental Promotion Committee (DPC).
3.3. When the petitioner was serving in the post of Science Supervisor, the Mizoram Education & Human Resource Department (Group ‘B’ posts) Recruitment Rules, 1988 [‘the 1988 Rules’, for short], framed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, were in force. In the said 1988 Rules, it was provided that the 331/3% of posts in the grade of Science Consultant were to be filled up by promotion from th
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