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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH AT AIZAWL BENCH
NELSON SAILO, J.
V.L. Zirchhuanawmi – Petitioner
Versus
State of Mizoram and Others – Respondents
WP (C) No. 76 of 2020
Decided On : 17-06-2022
Mizoram Engineering Service Rules, 2013 - Rule 22 (5) – Mizoram Engineering Service (Amendment) Rules, 2017 - Rule 22 (5) (a), 22 (5) (b) - Public Works Department - Writ petition is that petitioner Notifications respectively were appointed as Assistant Engineer/Sub-Divisional Officer (AE/SDO) (Civil) under Public Works Cadre of Mizoram Engineering Service under Public Works Department (PWD) which is categorized as Grade-V of Engineering Service - It is a settled legal position that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies Authority/Court, that he falls within the category of aggrieved persons - Only a person who has suffered, or suffers from legal injury can challenge act/action/order etc. in a court of law. (Para 13)
Findings of the Court :
It would be relevant to see that it is not private respondents who have approached this Court with grievance that despite being promoted under Rule 22 (5) (a) of Rules of 2017, they have not been given any Functional post but rather it is petitioners who have sought for setting aside promotion order of private respondents - However, in making such prayer, petitioners have nowhere stated or taken stand that they should be promoted instead of private respondents. Facts not in dispute is that petitioners were not eligible to be considered for promotion at time the private respondents were considered either in terms of Rule 22 (5) (a) or Rule 22 (5) (b) as they did not pass departmental examination in Engineering & Accounts as mandated by relevant provisions of Rules of 2017 - Therefore, in absence of any such prayer, writ petition cannot be maintainable - Although in interpretation of Rule 22 (5) (a) and (b) of Rules of 2017, State respondents appear to have made inconsistent statements in their affidavits but same in Court considered view, cannot have an impact on finding of this Court already recorded herein above that petitioners do not have locus standi to file writ petition with the prayer made by them.
Result : Writ petition dismissed.
JUDGMENT :
NELSON SAILO, J.
1. Heard Mr. A.R. Malhotra, learned counsel for the petitioners, Mrs. H. Lalmalsawmi, learned Govt. Advocate for the respondent Nos. 1, 2, 3 and 4 and Mrs. Dinari T. Azyu, learned counsel for the respondent Nos. 6, 7, 8 and 9. No one appears for the respondent No. 5 i.e. the Mizoram Public Service Commission. On 12.01.2022, on the submission made by the learned Standing Counsel for the respondent No. 5, it was recorded that the respondent No. 5 will not be filing any affidavit-in-opposition against the writ petition.
2. The 2 (two) writ petitioners have filed the instant writ petition with the following prayer:
3. Facts essential for disposal of the writ petition is that the petitioner Nos. 1 and 2 vide Notifications dated 05.09.2008 and 25.05.2010 respectively were appointed as Assistant Engineer/Sub-Divisional Officer (AE/SDO) (Civil) under the Public Works Cadre of the Mizoram Engineering Service under the Public Works Department (PWD) which is catergorized as Grade-V of the Engineering Service. The respondent Nos. 6 to 9 were also appointed as AE/SDO (Civil) under the Public Works Cadre of the Public Works Department vide Notification dated 25.05.2010, similar to the petitioner No. 2. As per the final inter-se-seniority of AE/SDO Grade-V or Junior Grade published vide Office Memorandum dated 02.06.2015, the names of the petitioner Nos. 1 & 2 appear at Serial Nos. 53 and 59 respectively. The names of the private respondent Nos. 6, 7, 8 and 9 appear at Serial Nos. 58, 61, 62, 63 respectively. As per Rule 22 (5) of the Mizoram Engineering Service Rules, 2013 (Rules of 2013) which came into force with effect from 23.09.2013, the next higher grade i.e. Senior Grade of the Engineering Service can be filled up from amongst the members of the service in the Junior Grade who have completed not less than 5 years of continuous regular service in the grade and have passed departmental examinations in Engineering and Accounts conducted by the MPSC by selection method. 80% of the posts are reserved for graduate engineers while 20% of the posts are meant for the non-graduate engineers.
4. The Rules of 2013 was thereafter, repealed by the Mizoram Engineering Service (Amendment) Rules, 2017 (Rules of 2017) which came into force with effect from 30.11.2017. As per Rule 22 (5) (a) of the Rules of 2017, vacancies in the Senior Grade of the Engineering Service can be filled up from amongst the members of the service in the Junior Grade who have completed not less than 5 years of continuous regular service in the grade and have passed departmental examination in Engineering & Accounts conducted by the MPSC by selection method.
5. Rule 22 (5) (b) of the Rules of 2017 further provides that notwithstanding anything in sub-rule (5) (a) of the Rules, a member of the service in the Junior Grade who have completed not less than 10 years of continuous service in the Junior Grade and have passed departmental examination in Engineering and Accounts conducted by the MPSC shall be eligible for Non-Functional promotion without linkage to vacancies by selection method provided that the provision for Non-Functional promotion shall be irrespective of the reservation system between direct recruits and promotes and shall be effective from the date of issue of Notification dated 04.08.2015. Provided further that the posting of office
The Non-Functional promotion under Rule 22(5)(b) is not a regular promotion and is different from the promotion made under Rule 22(5)(a), which is linked to vacancies and the reservation/quota system....
Date on which the private respondents were placed in the Functional Post of the Senior Grade under PHE Department. On such consideration, if the petitioners are found eligible to be promoted or to be....
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 ....
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 the ....
The main legal point established in the judgment is that the reservation system between Graduate and Diploma Engineers, as provided by Rule 22(5)(a) of the Mizoram Engineering Service (Amendment) Rul....
Promotion for eligible employees based on qualifications must be timely and fair, not delayed arbitrarily, upholding the principles of legitimate expectation and constitutional rights.
The court emphasized that promotions must adhere to principles of natural justice and proper application of seniority rules, invalidating the Tribunal's decision due to lack of notice to affected par....
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