Gauhati High Court
Page No.# 1/15 vs Shri P. Lalnunthara And 6 Ors on 14 December, 2021
Bench: Sudhanshu Dhulia, Soumitra Saikia
Page No.# 1/15
GAHC010014082021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/37/2021
THE STATE OF MIZORAM AND 3 ORS.
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF MIZORAM, AIZAWL,
MIZORAM- 796001.
2: THE SECRETARY TO THE GOVT. OF MIZORAM
DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS
AIZAWL
MIZORAM
PIN- 796001.
3: THE COMMISSIONER/SECRETARY TO THE GOVT. OF MIZORAM
IRRIGATION AND WATER RESOURCES DEPARTMENT
AIZAWL
MIZORAM
PIN- 796001.
4: THE CHIEF ENGINEER
IRRIGATION AND WATER RESOURCES DEPARTMENT
AIZAWL
MIZORAM
PIN- 796001
VERSUS
SHRI P. LALNUNTHARA AND 6 ORS.
S/O- VANLALRUATA, R/O- VENGLAI, DIST.- KOLASIB, MIZORAM, PIN-
796070.
2:SMT. MELONY ZOREMSANGI
D/O- PAUL THANGZIKA
R/O- MUALPUI
AIZAWL
MIZORAM
Page No.# 2/15
PIN- 796001.
3:SMT. MAINA LALNUNZIRI
D/O- LALTHANGKHUMA GANGTE
R/O- MISSION VENG
AIZAWL
MIZORAM
PIN- 796001.
4:SHRI VANLALPEKHLUA SAILO
S/O- LALZARA SAILO
R/O- COLLEGE VENG
LUNGLEI
MIZORAM
PIN- 796701.
5:SHRI LALZUITLUANGA
SUB-DIVISIONAL OFFICER
SERCHHIP SUB-DIVISION
IRRIGATION AND WATER RESOURCES DEPARTMENT
NEW SERCHHIP
PIN- 796181.
6:SMT. RUATKIMI VARTE
ASSISTANT ENGINEER (MONITORING)
OFFICE OF THE CHIEF ENGINEER
IRRIGATION AND WATER RESOURCES DEPARTMENT
KHATLA
AIZAWL
MIZORAM
PIN- 796001.
7:THE MIZORAM PUBLIC SERVICE COMMISSION
REP. BY ITS CHAIRMAN
NEW SECRETARIAT COMPLEX
AIZAWL
MIZORAM
PIN- 796001
Advocate for the Petitioner : MR A D CHOUDHURY
Advocate for the Respondent : MR. D J DAS
Page No.# 3/15
Linked Case : WA/74/2021
THE STATE OF MIZORAM AND 3 ORS.
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF MIZORAM
AIZAWL
MIZORAM-796001
2: THE SECRETARY TO THE GOVT. OF MIZORAM
DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS
AIZAWL
MIZORAM
PIN-796001
3: THE COMMISSIONER/SECRETARY TO THE GOVT. OF MIZORAM
IRRIGATION AND WATER RESOURCES DEPARTMENT
AIZAWL
MIZORAM
PIN-796001
4: THE CHIEF ENGINEER
IRRIGATION AND WATER RESOURCES DEPARTMENT
AIZAWL
MIZORAM
PIN-796001
VERSUS
JACINTA LALTANPUII AND 3 ORS.
W/O RONALD LALCHHUANAWMA
R/O TLANGNUAM
DAM VENG
DIST. AIZAWL
MIZORAM
PIN-796005
2:RUATKIMI VARTE
ASSISTANT ENGINEER (MONITORING)
OFFICE OF TE CHIEF ENGINEER
IRRIGATION AND WATER RESOURCES DEPARTMENT
KHATLA
AIZAWL
MIZORAM
PIN-796001
3:LALZUITLUANGA
SDO
SERCHHIP SUB-DIVISION
IRRIGATION AND WATER RESOURCES DEPARTMENT
NEW SERCHHIP
DIST. SERCHHIP
Page No.# 4/15
MIZORAM
PIN-796181
4:THE MIZORAM PUBLIC SERVICE COMMISSION
REP. BY ITS CHAIRMAN
NEW SECRETARIAT COMPLEX
AIZAWL
MIZORAM
PIN- 796001.
------------
Advocate for : ADDL. A.G. MIZORAM Advocate for : MR. J PATOWARY (R-1) appearing for JACINTA LALTANPUII AND 3 ORS.
Linked Case : WA/16/2021 LALZUITLUANGA S/O- LALHMUCHHUAKA R/O- MISSION VENG AIZAWL P.O. KULIKAWN DISTRICT AIZAWL MIZORAM PIN- 796005 PRESENTLY SERVING AS THE SUB-DIVISIONAL OFFICER SERCHHIP SUB-DIVISION IRRIGATION AND WATER RESOURCES DEPARTMENT NEW SERCHHIP DISTRICT SERCHHIP MIZORAM PIN- 796181.
VERSUS P. LALNUNTHARA AND 9 ORS.
S/O- VANLALRUATA R/O- VENGLAI DISTRICT- KOLASIB MIZORAM PIN- 796070 2:SMT. MELONY ZOREMSANGI D/O- PAUL THANGZIKA R/O- MUALPUI AIZAWL Page No.# 5/15 MIZORAM PIN- 796001.
3:SMT. MARINA LALNUNZIRI D/O- LALTHANGKHUMA GANGTE R/O- MISSION VENG AIZWL MIZORAM PIN- 796001.
4:SHRI VANLALPEKHLUA SAILO S/O- LALZARA SAILO R/O- COLLEGE VENG LUNGLEI MIZORAM PIN- 796701.
5:THE STATE OF MIZORAM REP. BY THE CHIEF SECRETARY TO THE GOVT. OF MIZORAM AIZAWL MIZORAM- 796001.
6:THE SECRETARY TO THE GOVT. OF MIZORAM DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS AIZAWL MIZORAM PIN- 796001.
7:THE COMMISSIONER/SECRETARY TO THE GOVT. OF MIZORAM IRRIGATION AND WATER RESOURCES DEPARTMENT AIZAWL MIZORAM PIN- 796001.
8:THE CHIEF ENGINNER IRRIGATION AND WATER RESOURCES DEPARTMENT AIZAWL MIZORAM PIN- 796001.
9:THE MIZORAM PUBLIC SERVICE COMMISSION REP. BY ITS CHAIRMAN NEW SECRETARIAT COMPLEX AIZAWL MIZORAM PIN- 796001.
10:SMT. RUATKIMI VARTE ASSISTANT ENGINEER (MONITORING) OFFICE OF THE CHIEF ENGINNER IRRIGATION AND WATER RESOURCES DEPARTMENT KHATLA AIZAWL MIZORAM PIN- 796001.
------------
Page No.# 6/15 Advocate for : MR. P D NAIR Advocate for : SR. GA MIZORAM appearing for P. LALNUNTHARA AND 9 ORS.
Linked Case : WA/20/2021 LALZUITLUANGA S/O- LALHMUCHHUAKA R/O- MISSION VENG AIZAWL P.O. KULIKAWN DISTRICT AIZAWL MIZORAM PIN- 796005 PRESENTLY SERVING AS THE SUB-DIVISIONAL OFFICER SERCHHIP SUB-DIVISION IRRIGATION AND WATER RESOURCES DEPARTMENT NEW SERCHHIP DISTRICT SERCHHIP MIZORAM PIN- 796181.
VERSUS SMT. JACINTA LALTANPUII AND 6 ORS.
W/O- RONALD LALCHHUANAWMA R/O- TLANGNUAM DAM VENG DISTRICT AIZAWL MIZORAM PIN- 796005.
2:THE STATE OF MIZORAM REP. BY THE CHIEF SECRETARY TO THE GOVT. OF MIZORAM AIZAWL MIZORAM- 796001.
3:THE SECRETARY TO THE GOVT. OF MIZORAM DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS AIZAWL MIZORAM PIN- 796001.
4:THE COMMISSIONER/SECRETARY TO THE GOVT. OF MIZORAM IRRIGATION AND WATER RESOURCES DEPARTMENT AIZAWL MIZORAM PIN- 796001.
Page No.# 7/15 5:THE CHIEF ENGINEER IRRIGATION AND WATER RESOURCES DEPARTMENT AIZAWL MIZORAM PIN- 796001.
6:THE MIZORAM PUBLIC SERVICE COMMISSION REP. BY ITS CHAIRMAN NEW SECRETARIAT COMPLEX AIZAWL MIZORAM PIN- 796001.
7:SMT. RUATKIMI VARTE ASSISTANT ENGINEER (MONITORING) OFFICE OF THE CHIEF ENGINEER IRRIGATION AND WATER RESOURCES DEPARTMENT KHATLA AIZAWL MIZORAM PIN- 796001.
------------
Advocate for : MR. P D NAIR Advocate for : SR. GA MIZORAM appearing for SMT. JACINTA LALTANPUII AND 6 ORS.
BEFORE HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE SOUMITRA SAIKIA Oral 14.12.2021 Heard Mr. D. Das, learned Senior Advocate, appearing for the appellants in WA 37/2021 and WA 74/2021, who also appears for the State respondents in WA 16/2021 and WA 20/2021, as well as Mr. P. D. Nair, learned counsel appearing for the appellant in WA 16/2021 and WA 20/2021. Also heard Mr. J. Patowary, learned counsel appearing for the private respondents in WA 37/2021, WA 20/2021 and WA 74/2021.
2. Out of these four writ appeals, WA 37/2021 and WA 74/2021 have been Page No.# 8/15 filed by the State of Mizoram and WA 16/2021 and WA 20/2021 have been filed by private individuals, who are aggrieved by the order passed by the learned Single Judge in WP(C) 96/2017 and WP(C) 90/2018, which were disposed of by the common order dated 06.11.2020.
2. Since the issue raised and the parties in these writ appeals are common, yet for the sake of convenience we would be referring to WA 37/2021 while dealing with the present writ appeals.
3. The brief facts of the case are that all the private respondents before this court were inducted in service in the Department of Minor Irrigation, Government of Mizoram, in the years 2011 and 2012. In the year 2013, the Government of Mizoram, vide Gazette Notification dated 23.09.2013 framed the "Mizoram Engineering Service Rules, 2013 (hereinafter referred to as the "Service Rules"), which governs the service of engineers under the Mizoram Government including the engineers in the Minor Irrigation Department. The private respondents joined service as "Junior Grade Engineer" in the cadre of Mizoram Engineering Service. Their next promotional post being "Senior Grade Engineer" which includes the post of Executive Engineer. As per Rule 22(5) of the Service Rules, which prescribes the eligibility conditions for promotion to the post of Executive Engineer from the post of Assistant Engineer, one must have completed not less than five years continuous regular service in the Junior Grade and have passed Departmental Examinations in the subjects of Engineering and Accounts conducted by the Mizoram Public Service Commission (hereinafter referred to as "MPSC").
On 15.07.2020, an Office Memorandum was issued by the Government of Mizoram which, inter alia, provides for fixation of the crucial date for Page No.# 9/15 determining the eligibility of officers for promotion as the 1 st January of the year in which the vacancy arises. What is necessary for our purpose is paragraph 6 of the Office Memorandum dated 15.07.2010, which reads as under:
"6. Crucial date for determining eligibility:
The Crucial date for determining the eligibility of officers for promotion would be the first day of the vacancy year i.e. 1 st January immediately preceding such vacancy year. For instance, the crucial date for the vacancy year 2009-2010 would be 1st January, 2009. The crucial date indicated above would be applicable to only such service and posts for which statutory Service Rules/Recruitment Rules do not prescribe a crucial date."
Subsequently, by another Office Memorandum dated 11.05.2012, the crucial date for determining the eligibility of officers for promotion was changed to 1 st day of April of the year in which the vacancy arises.
4. In May, 2016 a Departmental Examination was conducted by the MPSC wherein the private respondent nos. 5 and 6 passed in all papers, however, the private respondent nos. 1 to 4 could not clear the Examination. Thereafter, in March, 2017 the MPSC again conducted another Departmental Examination for the Junior Grade of Mizoram Engineering Service, the result of which was declared in May, 2017, wherein the private respondent nos. 1 to 4 again appeared and this time they cleared all the papers.
5. In the year 2017 two vacancies in the post of Executive Engineer (Senior Grade) in the Irrigation Department were to be filled up. Amongst the private respondents, the private respondent nos. 5 and 6 were considered by the Page No.# 10/15 Irrigation Department as eligible for promotion to the post of Executive Engineer since both of them were eligible on the crucial date, i.e. 01.04.2017 as per the aforementioned Office Memorandum. Accordingly, their names were sent to the Government for approval. Although, at the time of sending the proposal to the Government the private respondent nos. 1 to 4 also acquired the eligibility conditions, they were not considered by the department for promotion since they did not possess the required eligibility criteria on the crucial date, i.e. 01.04.2017 as, admittedly, they had not passed the Departmental Examination on 01.04.2017. Aggrieved by the non-consideration of their name for promotion, the private respondent nos. 1 to 4 filed the aforementioned two writ petitions before the learned Single Judge challenging the promotions of the private respondent nos. 5 and 6 to the post of Executive Engineer. Apart from the above, the writ petitioners had also challenged the aforesaid Office Memorandum dated 15.07.2010 and 11.05.2012.
6. The learned Single Judge, while relying on an earlier decision of the court in WP(C) 72/2011, came to the conclusion that the Office Memorandum dated 15.07.2010 and 11.05.2012, which fix the crucial date for determining the eligibility of officers for promotion to the next higher post are unsustainable and, consequently, the aforesaid Office Memorandum were set aside. The learned Single Judge further directed the respondent authorities to convene Departmental Promotion Committee (DPC) meeting taking the writ petitioners into the zone of consideration along with other eligible candidates as on 05.07.2017, i.e. the date on which Agenda Notes were prepared by the Irrigation Department for filling up the two vacant posts of Executive Engineer by way of promotion. The respondent authorities were directed to complete the exercise within one month.
Page No.# 11/15 Aggrieved by the order of the learned Single Judge the State of Mizoram has filed the aforementioned two appeals inasmuch by the impugned order the learned Single Judge has held the aforesaid Office Memorandum dated 15.07.2010 and 11.05.2012 unsustainable and has set aside the same.
7. Mr. D. Das, learned Advocate General, Mizoram, would argue that the Office Memorandum dated 15.07.2010 and 11.05.2012 relate not only to the Minor Irrigation Department but is also applicable to all the Government Departments as and when promotional exercise is to be undertaken by the Government of Mizoram in these departments. Moreover, there is always rational behind fixing a cut-off date, or eligibility date, and the reason behind it is that in a given promotional exercise only such candidates will be liable to be considered who have acquired the eligibility criteria on or before the cut-off date. This is a fair procedure and it causes prejudice to none. Moreover, it is being followed in all the Government Departments. In the case of Council of Scientific and Industrial Research and Other vs. Ramesh Chandra Agrawal and Another , reported in (2009) 3 SCC 35 the Hon'ble Apex Court held that the State is entitled to fix a cut-off date and such a decision can struck down only when it is arbitrary, or when it is shown that it has no rational nexus with the object sought to be achieved by such fixing of cut-off date. The observations made by the Hon'ble Supreme Court in paragraph 29 and 30 of the judgment in the aforementioned case reads as under:
"29. A `State' is entitled to fix a cut-off date. Such a decision can be struck down only when it is arbitrary. Its invalidation may also depend upon the question as to whether it has a rational nexus with the object sought to be achieved. 2.5.1997 was the date fixed as the cut-off date in terms of the scheme. The reason assigned therefor Page No.# 12/15 was that this was the date when this Court directed the appellants to consider framing of a regularization scheme. They could have picked up any other date. They could have even picked up the date of the judgment passed by the Central Administrative Tribunal. As rightly contended by Mr. Patwalia, by choosing 2.5.1997 as the cut- off date, no illegality was committed. Ex facie, it cannot be said to be arbitrary.
30. The High Court, however, proceeded on the basis that the cut- off date should have been the date of issuance of the notification. The employer in this behalf has a choice. Its discretion can be held to be arbitrary but then the High Court only with a view to show sympathy to some of the candidates could not have fixed another date, only because according to it, another date was more suitable. In law it was not necessary. The court's power of judicial review in this behalf although exists but is limited in the sense that the impugned action can be struck down only when it is found to be arbitrary. It is possible that by reason of such a cut-off date an employee misses his chance very narrowly. Such hazards would be there in all the services. Only because it causes hardship to a few persons or a section of the employees may not by itself be a good ground for directing fixation of another cut-off date."
8. In the present case, nothing has been shown to us, which may give an impression that there was any arbitrariness in fixing the particular cut-off date by the Government of Mizoram by the aforesaid Office Memorandum. We find that the fixing of the cut-off date has a rational and the object sought to be achieved here is that there should be a certainty as to the date when the Page No.# 13/15 qualification is to be determined . Had there been no cut-off date for determining the competitors' eligibility, the process can then be abused inasmuch as then it will always be possible in a given case not to hold the promotion exercise till some candidate have gained the eligibility. The employer, for extraneous consideration, may not undertake the promotional exercise immediately to fill up the vacancy but may postpone it till a particular employee acquires the eligibility criteria.
9. In the case of UCO Bank vs. Madhav Anant Koparkar, reported 1999 SCC (L7S) 1174, the Hon'ble Supreme Court has observed in paragraph 5 of its judgment on the aspect of validity and purpose of cut-off date, which reads as under:
"The respondent contended before the High Court that in July 1987, he acquired an additional qualification which entitles him to two more marks. If this qualification had been taken into account, he would have secured the necessary marks for selection. The cut-off date for considering seniority, qualifications and performance, however, was 31.12.1986 as per the modified promotion policy. Hence, the additional qualification acquired by the respondent in July 1987 has not been considered. In the impugned judgment, however, the High Court has granted to the respondent the benefit of the additional marks on the basis that when qualifications for promotion are required, the qualifications at the date of promotion should be considered and not the qualifications at any date prior to it. This reasoning of the High Court is fallacious. When a promotion policy is framed setting out the cut-off date for considering qualifications, this is a decision taken for administrative reasons making it possible, inter alia, for the employing authority to examine the numerous applications, process Page No.# 14/15 them and grade them. It may be that some other cut-off date was possible. But that does not mean that a cut-off date once fixed can be ignored or considered as arbitrary or unreasonable. In the present case, looking to all the circumstances in which the policy was relaxed and the reasons why modifications had to be made in the policy relaxing the minimum length of service, we do not see any infirmity in continuing to retain 31.12.1986 as the cut-off date for giving marks for qualifications, seniority and performance."
10. In view of the above, as far as cut-off date in the present case is concerned, we are of the opinion that cut-off date has a purpose and it cannot be said that the decision of the concerned authorities to have a cut-off date was arbitrary and therefore it is unsustainable. The purpose here is to bring a certainty for the candidates as they must know on what date they must attain eligibility. For this reason we respectfully do not agree with the findings of the learned Single Judge who has held this cut-off date to be unsustainable. We therefore set aside the order of the learned Single Judge dated 06.11.2020.
11. We direct the State Government, Mizoram, to initiate the promotional exercise afresh in respect of the vacancies in question. As already noted above, there are already departmental recommendations for promotion of the respondent nos. 5 and 6.
12. At this stage Mr. Patowary, learned counsel appearing for respondent no. 1 in the present appeal [writ petitioner in WP(C) 96/2017] as well as for respondent no. 1 in WA 20/2021 [writ petitioner in WP(C) 90/2018] has submitted that the respondents may be given the liberty to move application before the State Government of Mizoram for relaxation of the eligibility criteria as they did become eligible in May, 2017 and the vacancies had come up later in Page No.# 15/15 July, 2017.
The writ petitioners, who are private respondents in these appeals, may move an application before the concerned authority seeking relaxation as stated above. The authorities concerned will take a decision on the application so moved in accordance with law.
13. The writ appeals stand disposed of in terms of the above.
JUDGE CHIEF JUSTICE Comparing Assistant