IMPORTANT POINT
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.

JUDGMENT :

MICHAEL ZOTHANKHUMA, J.

1. Heard Mr. Joseph L. Renthlei, learned counsel for the petitioners. Also heard Mrs. Linda L. Fambawl, learned Addl. Advocate General for the State respondents. No one appears for the private respondents even though notice has been deemed to be served upon them.

2. These three writ petitions are being disposed of by a common Judgment and Order in view of the fact that the subject matter in issue is the same in all the three writ petitions, involving the same writ petitioners.

3. At the outset, Mr. Joseph L. Renthlei, learned counsel for the petitioners submits that the petitioner No. 2 has retired and as such, he does not wish to press the case of the petitioner No. 2.

4. The case of the petitioners is that in terms of the schedule to the 2013 Rules, there were 51 posts of Senior Grade (Civil) of the MES, who are Executive Engineers. As such, 41 posts of the Junior Grade were reserved for Graduate Engineers, while 10 posts were reserved for Non-Graduate Engineers. However, the Graduate Engineers have been promoted beyond their quota in the Senior Grade of the MES, thereby usurping the quota reserved for Non-Graduate Engineers. The petitioners have been promoted to the Senior Grade post (Non- Functional), which is not really a promotion, while the private respondents have been promoted to Senior Grade post (Functional). The case of the State respondents, on the other hand, is that promotion to the Senior Grade of the MES, whether functional or Non-Functional is the same. It is a promotion and they are intra-transferable posts.

5. That in terms of Rule 22(5) of the Mizoram Engineering Service Rules, 2013 (hereinafter referred to as the 2013 Rules), for consideration for promotion to the Senior Grade post of the Mizoram Engineering Service (hereinafter referred to as MES), required a member of the MES of the Junior Grade to have completed not less than 5 years continuous regular service in the Junior Grade and to have passed the Departmental Examination in Engineering & Accounts.

6. The proviso to Section 22(5) of the 2013 Rules stated that 80% of the posts shall be reserved for Graduate Engineers, while 20% would be reserved for Non-Graduate Engineers.

7. The Second Proviso to Rule 22(5) of the 2013 Rules provided that the reservation would be continued after all the present incumbent Non-Graduate Engineers in the Junior Grade as on the date of commencement of the 2013 Rules were promoted, died, retired or had quitted the service by any means.

8. The petitioners herein are Non-Graduate Engineers i.e. Diploma holders, who had been promoted to the post of Junior Grade of the MES at the time of commencement of the 2013 Rules.

9. The 2013 Rules were thereafter amended vide the Mizoram Engineering Service (Amendment) Rules, 2017 (hereinafter referred to as Amended Rules) and Rule 22(5) of the 2013 Rules became Rule 22(5)(a) of the Amended Rules. Rule 22(5)(b) was also inserted, which stated that a member of the MES in the Junior Grade who had completed 10 years of continuous regular service in the Junior Grade and who had passed Departmental Examination in Engineering and Accounts, shall be eligible for Non-Functional promotion without linkage to vacancies by Selection Method.

10. The proviso to Rule 22(5) (b) of the Amended Rules provides 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.

11. The Second Proviso to Rule 22(5)(b) of the Amended Rules provided that the posting of Officers to the functional posts in Senior Grade of the service shall be done, as far as possible, on the basis of seniority or as determined by the Government from time to time.

12. The Schedule to the Amended Rules shows that posts of Senior Grade included Functional and Non-Functional posts. There were 51 Functional posts of Senior Grade (Functional), without giving the numbe