Gauhati High Court
Sh. K. Hema & 22 Others vs The State Of Mizoram & 4 Others on 4 July, 2017
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
AIZAWL PERMANET BENCH AT AIZAWL
(EXTRAORDINARY WRIT JURISDICTION)
WP(C) No.215 of 2016
Sh. K. Hema & 22 others .... ... Petitioners
-Versus-
The State of Mizoram & 4 others. ... ... Respondents
BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM For the petitioners : Mr. C. Lalramzauva, Sr. Advocate.
Ms. Priya Zohmangaihi, Advocate.
For the respondents : Mr. Rosangzuala Ralto,
Government Advocate, Mizoram.
(For respondent Nos.1 to 4)
Mr. K. Lalchhainliana, Advocate
(For respondent No.5).
,
Date of hearing : 04.07.2017.
Date of Judgment : 04.07.2017.
JUDGMENT AND ORDER (Oral)
1. Heard Mr. C. Lalramzauva, learned senior counsel appearing for the writ petitioners. Also heard Mr. Rosangzuala Ralte, learned Government Advocate, Mizoram, representing the respondent Nos.1 WP(C) No.215/2016 Page 1 of 13 to 4 as well as Mr. K. Lalchhanliana, learned counsel appearing for the respondent No.5.
2. This is the third round of litigation arising out of the Government Notification dated 01.08.1994 by means of which all the Government and non-Government Middle Schools in existence as on 01.08.1994 in the Chhimtuipui District were transferred and placed under the control of the respective Autonomous District Councils within whose jurisdictions, they were located and the services of the existing incumbents serving under the aforesaid schools were also placed under the control of the Autonomous District Councils in terms of the terms and conditions appended as Annexure-B to the said Notification. The teaching and non-teaching staff of the Government Middle Schools located in the aforesaid area were affected by the Notification dated 01.08.1994 to the extent that their services had been placed at the disposal of another autonomous body without obtaining their consent in the matter. Situated thus, the affected employees had earlier approached this Court by filing WP(C) No.136/2000 which was disposed of by the learned Single Judge by making the following observations and directions :-
"5. Therefore, this Court, for the time being, is disposing of this petition with the following direction:
(i) The petitioners will have the right to agitate the matter if and when an acceptable solution is not WP(C) No.215/2016 Page 2 of 13 invented or evolved by the Govt. or at least a reasonable solution is not effected.
(ii) The Respondents will consider within a reasonable period from the date of disposal of this petition whether it is possible to remove the word 'deputation' from the transfer orders or to modify the transfer orders in such way as to benefit the petitioners so that their services condition before the transfer was effected.
(iii) The respondents Govt. shall also take necessary steps to amend the terms and conditions of the transfer in such away as to remove all types of doubts and confusions and with a view to ensure that the petitioners are not deprived of the privilege enjoyed by them prior to their transfer to the Autonomous District Council, the said modification will also suggest the authority who will be competent to grant such benefits to the petitioners as and when they become eligible for such benefits."
3. In the wake of the order dated 15.05.2002 passed in WP[(C) No.136/2000 the Government had issued a Notification dated 05.03.2003 revising the terms and conditions for absorption of the teaching and non-teaching staff of Government Middle Schools, who had earlier been transferred on the basis of the original Notification dated 01.08.1994. According to the Notification dated 05.03.2003, the services of the teaching and non-teaching employees of the Government of Mizoram serving under the Middle schools under the WP(C) No.215/2016 Page 3 of 13 jurisdiction of the three Autonomous District Councils were placed at the disposal of the respective District Councils for permanent absorptions with effect from the date and as per the terms and conditions as indicated in the Annexure-A appended to the Notification. The effect of the Notification dated 05.03.2003 was that instead of transfer, the services of all these Government employees had now been placed at the disposal of the Autonomous District Councils for permanent absorption.
4. Since the teaching and non-teaching staff of the Government Middle Schools were originally appointed under the Department of Education, State of Mizoram, they were aggrieved by the decision of the State to put their services at the disposal of the Autonomous District Councils for permanent absorption more particularly since the prior consent of these employees were never obtained by the Department before doing so. As such, the affected teaching and non- teaching staff of the Government Middle Schools were compelled to approach this Court once again in a representative capacity by filing WP(C) No.115/2003 agitating their grievances in the matter. Taking note of the stand of the petitioners therein as well as the official respondents, the learned Single Judge had disposed of WP(C) No.115/2003 by the order dated 10.08.2007 by making the following directions and observations contained at paragraph 10 of the said order which is quoted herein below for ready reference :- WP(C) No.215/2016 Page 4 of 13
"10. The upshot of the above discussions may now summed up for decisions as follows:-
(i) By notification dated 1/8/1994 only the Government Middle Schools had been legally transferred. The part of the notification transferring non Government Middle Schools is not in terms of para 6(2) of the Sixth Schedule and, therefore, the same is set aside and quashed. All such non Government Middle Schools and the teaching and non-teaching staff including the petitioners concerned herein shall stand restored to their earlier position before 1/8/1994.
(ii) The teaching and non teaching staff of the Government Middle Schools so transferred including the petitioners concerned working in those institutions shall enjoy the status of Government servants on deputation to the District Councils without any deputation allowance;
(iii) The period of deputation cannot be indefinite. The State respondents shall obtain their consent and gradually withdraw them (at the first phase those who are unwilling) from deputation within a definite time frame. If there exist no vacancy in the Govt. Middle Schools to withdraw and post the petitioners, incumbents of other Govt. Middle Schools may be sent on deputation by rotation in their places to create required vacancies. If, however, there exist vacancies to withdraw them from deputation, the vacancies created in the transferred Middle Schools due to such withdrawal shall be filled up by the respective district councils only in accordance with their recruitment procedure;
(iv) If it is considered necessary so to do for the purpose of gradual withdrawal of the petitioners from deputation, the WP(C) No.215/2016 Page 5 of 13 State Government may issue a direction that vacancies which may arise in the Government Middle Schools should be filled up only by the deputationist and till the withdrawal process is completed no fresh recruitment to those vacancies shall be made.
(v) The notification dated 5/3/2003 providing terms and conditions for permanent absorption in the district councils of the teaching and non-teaching employees including the petitioners of Govt. Middle Schools placed on deputation is unsustainable in law and, therefore, the same is set aside and quashed."
5. As would be apparent from the narrations made herein before, the learned Single Judge had clearly held that the policy decision of the Government of Mizoram to place the services of the teaching and non-teaching staff of the Government Middle Schools at the disposal of the Autonomous District Councils on the basis of permanent absorption was unsustainable in law. The notification dated 05.03.2003 was accordingly set aside. In the order dated 10.08.2007, it was further observed that there cannot be an indefinite period of deputation and therefore, the State respondents were directed to obtain the consent of the employees and gradually withdraw them from deputation within a definite timeframe.
6. Pursuant to the judgment and order dated 10.08.2007 passed in WP(C) No.115/2003, the Director of School Education, Mizoram, Aizawl had also issued a communication dated 16.07.2009 addressed to the WP(C) No.215/2016 Page 6 of 13 Secretary, Government of Mizoram, Department of Education and Human Resources Development (School Education), recommending that the order of this Court dated 10.08.2007 be implemented. Thereafter, a meeting was convened under the chairmanship of the departmental Minister in presence of the affected persons so as to find a solution to the vexed issue in the light of the judgment and order dated 10.08.2007 passed by this Court. After a threadbare discussion of the issues, the meeting held on 14.10.2014 under the chairmanship of the departmental Minister adopted a resolution to place the matter for appropriate discussion with the departmental Secretary and for consultation with the legal expert so as to find appropriate means for implementation of the Court order. Thereafter, on 20.10.2014 a meeting was held in the office chamber of the departmental Secretary in presence of the representatives of all the affected parties whereby it was categorically agreed that the judgment and order dated 10.08.2007 passed by this Court shall be implemented to the extent possible and steps to that effect shall be taken immediately.
7. The grievance of the writ petitioners, numbering 23 in total, who are the teaching and non-teaching staff of the Government Middle Schools under the Mara Autonomous District Council (MADC), is that despite the categorical directions contained in the order dated 10.08.2007 passed in WP(C) No.115/2003 and notwithstanding the resolution dated 20.10.2014 adopted in the meeting held with the WP(C) No.215/2016 Page 7 of 13 departmental Secretary unanimously agreeing to implement the Court order, no effective steps have been taken by the authorities till date for rotating the services of the writ petitioners even after the expiry of nearly 10 (ten) years since the order dated 10.08.2007 had been passed.
8. Mr. C. Lalramzauva, learned senior counsel representing the writ petitioners, submits that it is not in dispute that the writ petitioners are all Government servants and hence, their terms and conditions of service would be governed by the rules and regulations applicable to such Government employees. After the judgment and order dated 10.08.2007 passed by this Court it is now apparent that the petitioners will have to be treated as Government servants and they will have to be offered rotational posting outside the schools placed under the control of the Autonomous District Council. Notwithstanding the same, the Government has failed to take appropriate measures for effective implementation of the Court order as a result of which the writ petitioners are suffering immensely in as much as they have been denied the benefit of medical reimbursement, GPF and pension facilities which is available to the employees working under the Mizoram Government.
9. To buttress his argument Mr. C. Lalramzauva has also invited the attention of this Court to para 4.2 of the Office Memorandum dated 02.07.2014 which makes it clear that in case of those employees who WP(C) No.215/2016 Page 8 of 13 are transferred on deputation to posts outside the Government department, payment of leave salary and pension contribution by the borrowing department to the State Government shall not be required. Notwithstanding the same, submits the learned senior counsel, the department has not redressed the grievances of the petitioners as a result of which they have been compelled to approach this Court once again by filing the present writ petition.
10. Mr. Rosangzuala Ralte, learned Government Advocate, Mizoram, submits that the decision of the Government is to implement the order of this Court dated 10.08.2007 to the extent the same is possible and therefore, the petitioners do not have any reason to feel apprehensive about their entitlement under the Rules. The learned counsel submits that the writ petition itself is liable to be held to be not maintainable since the purpose of the present writ petition is nothing but to implement the earlier judgment and order dated 10.08.2007 in a manner which is impermissible in the eye of law.
11. Mr. K. Lalchhanliana, learned counsel representing the respondent No.5, has also questioned the maintainability of the writ petition on the ground that in the absence of any contempt proceeding, the petitioners cannot allege violation of the Court order. The learned counsel submits that since, the petitioners are guilty of laches and negligence, no equitable relief can be granted to them in the facts and circumstances of the case. The learned counsel has WP(C) No.215/2016 Page 9 of 13 further argued that the writ petitioners are all employees of the State Government and therefore, the MADC is not liable to pay medical reimbursement, GPF or pension to the writ petitioners.
12. I have considered the submissions made by the learned counsel for the parties and have also perused the materials available on record.
13. As has been mentioned herein before, the entire controversy in the matter was triggered by the Notification dated 01.08.1994 by means of which the Government of Mizoram had not only transferred the existing Government Middle Schools and non Government Middle Schools and place them at the disposal of the respective Autonomous District Councils but even the services of the Government employees were placed under control of the Autonomous District Councils without obtaining their consent. The employees who had joined service as State Government employees did not agree to such decision of the Government and resisted the transfer on the ground that their services could not have been transferred to another Autonomous body without obtaining their consent thereby altering the conditions of their service. Taking note of the aforesaid position, the learned Single Judge had rightly declared the entire exercise as illegal by the judgment and order dated 10.08.2007.
WP(C) No.215/2016 Page 10 of 13
14. The State has not preferred any appeal against the judgment and order dated 10.08.2007 and hence, the said order has attained finality in the eye of law. Therefore, it was incumbent upon the departmental authorities to implement the order dated 10.08.2007 in its letter and spirit. But it is sad that despite the lapse of nearly ten years since the order dated 10.08.2007 was passed and notwithstanding the decision of the Government to implement the Court order, the respondent authorities have apparently not initiated effective measures to redress the grievance of the petitioners as per the mandate of the order dated 10.08.2007. As a result of such inaction of the departmental authorities, not only have the petitioners been made to suffer unduly but also a considerable amount of confusion still persists amongst the affected employees as to the rules and regulations that would govern the conditions of their services.
15. It is no doubt correct that ordinarily a writ petition would not be the proper recourse for implementation of an earlier order passed by the Court on the same subject matter. But in the present case, I find that considerable amount of discussions and deliberations has taken place over the past few years centering around the question of implementation of the order dated 10.08.2007 passed in WP(C) No.115/2003 and a decision was finally taken by the authorities to implement the Court order dated 10.08.2007 which is reflected in the resolution dated 20.10.2014. In the present writ petition the prayer of WP(C) No.215/2016 Page 11 of 13 the petitioners is for issuance of a writ of mandamus for implementation of the decision adopted on 20.10.2014 as well. Hence, the Writ Petition is held to be maintainable in the facts of the present case.
16. I have noticed that the petitioners had earlier submitted a representation on 14.09.2015 ventilating their grievances in the matter but no action has been taken till date on the said representations. Under the circumstances and having regard to the submissions advanced by the learned counsel for the parties I am of the view that the present is a fit case where a direction can be issued to the respondents for redressal of the petitioners' grievances in light of the order dated 10.08.2007 as accepted by the decision adopted on 20.10.2014. This writ petition, therefore, stands disposed of with a direction upon the respondent Nos.1 to 4 to take note of the grievances of the petitioners and pass appropriate orders giving rotational postings to the petitioners as per the order dated 10.08.2007 passed by this Court in WP(C) No.115/2003. For the above purpose, the department shall take necessary steps for calling options from the petitioners so as to decide on their future posting if the same has not been done already. The above process shall be completed within a period of three months from the date of receipt of a certified copy of this order.
WP(C) No.215/2016 Page 12 of 13
17. It is further made clear that with effect from their respective dates of appointments in the Government Middle Schools till their retirement from service on attaining the age of superannuation, all the petitioners shall be treated to be in continuous Government service and they hall be entitled to all the benefits and privileges that may accrue under the rules and regulations applicable to the Government servants of equal rank and category.
With the above observation this writ petition stands disposed of. No order as to cost.
JUDGE T U Choudhury WP(C) No.215/2016 Page 13 of 13