Gauhati High Court
Vanhnuaithanga And Ors. vs State Of Mizoram And Ors. on 13 October, 1999
JUDGMENT
1. Heard Mr. H. Lalrinthanga, learned counsel for the petitioners and Mr. T. Vaiphei, learned Assistant Advocate General for the State of Mizoram and Mr. G. Raju, learned counsel and Mr. M.M. Ali, learned counsel for the private respondents.
2. With the consent of the parties Writ Petition (C) No. 16/94 and Writ Petition (C) No.5/95 are heard and disposed of by this common order. The five petitioners in both the cases are the same person. It may be mentioned here that during the pendency of this writ petition the petitioner No.5 Shri Sangkamlova died and as such no relief has been sought in his favour. Respondent Nos. 5-9 in Writ Petition (C) No. 16/94 are the persons who were initially recruited as Scriptwriter in the year 1981 and for the purpose of convenience hereinafter referred as Respondents Group I (RG I), the respondent No. 5, 6 and 7 in the Writ Petition (C) No. 5/95 are the persons who are initially recruited as Script Writers in the year 1984-1986 and hereinafter referred as Respondent Group II (RG II).
3. The Facts : Petitioner Nos. 1-4 were recruited as Sub Divisional Information and Public Relations Officer (SDIPRO) under Mizoram Information and Public Relations and Tourism Department (Class III Posts) under Recruitment Rules, 1973 and their respective date of joining is as under petitioner No. 1-12.5.83 petitioner No. 2- 26.4.83 petitioner No. 3-30.4.84 and petitioner No. 4- 7.4.84. At the time of joining their services the post of SDIPRO was the only feeder post for the purpose of promotion to Group 'B' and Group 'A' post. There was no rules for recruitment for the post of Script Writers as a matter of fact these posts were created in the year 1981 for the first time without framing any rules. The posts of Script Writer was re-designated as Assistant Information Officer by the State Government vide order dated 29.8.87. The post of SDIPRO was also re-designated as Assistant Public Relations Officer (APRO). Although initially Script Writers were given a higher scale of pay after the re-designation both the post i.e. Assistant Information Officer and Assistant Public Relations Officer were given the same pay scale (revised) of Rs. 1640-2900. Thereafter the State Government vide notification dated 12.10.89 clubbed the post of Assistant Information Officer and Assistant Public Relations Officer and re-designated the same as Assistant Information and Public Relations Officer (AIPRO). New Recruitment Rules, called the Mizoram Information Public Relations and Tourism Department (Group 'B') Posts Recruitment Rules, 1976 were framed.
4. On 19.1.1989 the officers of RG I were promoted as Public Relation Officer/Press Information Officer etc. in the pay scale of Rs. 2000-3500. According to the petitioners this was done considering the period of service put in by the RG. I as Script Writer and without considering the case of the writ petitioners. The petitioners filed representations but without any result, whereupon Writ Petition (C) No. 16/94 was instituted. Final inter-se-seniority list was published on 26.4.94 placing the officers of RG II at Sl. No. 1, 2 and 3 and the writ petitioners at Sl. No. 4, 5, 6, and 7. According to the petitioners their seniority has to be counted from the date of their appointment/ joining in the service and the above fixation is illegal, mala fide and has effected the petitioners adversely. The petitioners thereafter prayed for necessary direction for fixation of inter-se-seniority on the basis of the appointment according to the rules and date of joining the post.
5. The case of the private respondents RG I and RG II is that, they were appointed as Script Writers in the pre-revised scale of Rs. 500-900 which is higher than that of writ petitioners. Their appointment was made by the State Government and the State Government has necessary power to include them in the concerned rules for promotion etc. and accordingly they were brought in the common cadre, they have also defended the inter-se-seniority fixed by the State Government claiming the same to be in accordance with law.
6. The stand of the respondent Government is that the final inter-se-seniority of the officers has been fixed on the basis of the principle of fixation and the inter-se-seniority can not be fixed with effect from date of joining without taking into consideration, the other factors like status, pay scale enjoyed by the officer immediately before entering to the grade etc.
7. The learned counsel for the writ petitioners has submitted that the petitioners entered into the service under the Recruitment Rules and under the accepted principles of law when their appointment was made according to the rules, seniority has to be counted from the date of such appointment. In support of the submission, the learned counsel has relied on decision of the Apex Court in the case of Direct Recruit Class II Engineering Officer's Association v. State of Maharashtra and others 1990 2 SCC 715. The Apex Court held :
"Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. Seniority cannot be determined on the sole test of confirmation, for, confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter-se-seniority has to conform to the principles of equality spelt our by Articles 14 and 16. The corollary of the above rule is that where the initial appointment is only as hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
The experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uniterruptedly till the regularisatlon of his service in accordance with the rules, the period of officiating service will be counted."
8. In this case, there is no dispute that the officers of RG I had Joined the service as Script Writer in the year 1981 where as the petitioners have joined the service in the year 1983-84. So far officers of RG II are concerned they are definitely Junior to the writ petitioners in the sense that they joined as Script Writer after the petitioners had joined their service. So far the appointment of the writ petitioners is concerned it was in accordance with the existing rules whereas there was no rules for recruitment for the post of Script writer and those posts were grouped for the first time and as per the Government, they were appointed to meet with the heavy public relations work load of the department and their duty included coverage of VIP's and assisting the VIP's on tour. Admittedly the post of Script writer was not a feeder post for the purpose of promotion to the post of Information Officer/Public Relations Officer. So far the power of the State Government to constitute a new cadre by merging some existing cadre or by amalgamation of two cadres is concerned, it is well settled that it is within the scope of Article 309 and this being a case of policy decision, the scope of review by the court is a limited one. In the case of Union of India and others v. S.L. Dutta and another, AIR 1991 SC 363 the Apex Court held that in such matter the court should rarely interfere. The said view was reiterated in the case of S.P. Shivprasad Pipal v. Union of lndia and others AIR 1998 SC 1882.
9. In the case of State of Maharashtra v. Chandrakant Anant Kulkarni AIR 1981 SC 1990, the Apex Court laid down that the following factors will be taking into consideration in determining the equation of posts :-
"(a) Nature; and duties of a post;
(b) Powers exercised by the officers holding a post the extent of territorial or other charge held or responsibilities discharged ;
(c) The minimum qualifications, if any, prescribed for recruitment to the post and ;
(d) The salary of the post.
This Court further observed that it is not open to the court to consider whether the equation of posts made by the Central Government is right or wrong. This was a matter exclusively within the province of the Central Government. Perhaps the only question the Court can enquire into is whether the four principles cited above had been properly taken into account. This is the narrow and limited field within which the supervisory jurisdiction of the Court can operate."
10. The only stand taken by the respondents is that the initial pay of the RG I and RG II was higher than the initial pay of the writ petitioners and as such they, have been given seniority vis-a-viz the writ petitioners. So far the educational qualification natural of duty of the posts and power exercise is concerned, these are more or less same or identical. In support of his submission the learned counsel has referred the decision of the Apex Court in the case of R.S. Makashi and ors. v. M. Menon and others AIR 1982 101 and the case of K.C. Gupta and others v. Lt Governor of Delhi and others 1994 (Supp) 3 SCC 408 the facts in K. C. Gupta [supra] were altogether different as it related to promotion of two different cadres of teachers teaching in Middle School and High School having different pay scales. So far the present case is concerned, the petitioners were brought into the pay scale of Rs. 1640-2900 p.m. vide notification dated 29.6.87 whereas the officers of RG I and RG II were given the said pay scales vide Notification dated 29.7.1987 although with retrospective effect from 29.6.1987 i.e. the date on which the petitioners were given the above pay scales. The merger of two posts took place vide Notification dated 12.10.1989 only and on the date of merger or much prior to that both the writ petitioners and RG I and RG II were accorded identical pay scale. This is not a case where the writ petitioners have been given a higher pay scales in view of the merger of the service. Hence the ratio in K.C. Gupta & Ors (Supra) is not applicant in the present case.
11. The next submission by the learned counsel for the petitioners is that the petitioners joined their services as per the then existing rules they were the only officers who are eligible for promotion to the post of Information Officer or Public Relations Officer as SDIPRO was only feeder post and 100% promotion was to be made from the said feeder post only. Thus, they had legitimate expectation that in due course they will be promoted to the post of District Information Officer/District Public Relations Officer. There is no dispute to the above proposition, admittedly, the Script Writer had no Recruitment Rules and they are not included in the feeder post for promotion. It is further submitted that as there was no promotional avenue to the Script Writer they were given a higher initial pay scale but in view of the promotional prospect the writ petitioners choose to opt for post of SDIPRO instead of Script Writer. The learned counsel has placed reliance on the decision of the Apex Court in the case of Union of India and others v. Hindustan Development Corporation and others (1993) 3 SCC 499. The question of legitimate expectation in the matter of State action was the subject matter for consideration in the case of Food Corporation of India v. M/S. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 and also in the case of K.C. Gupta and others v. Lt. Governor of Delhi and others. In Food Corporation of India (Supra) the Apex Court observed :
"The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration to a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent."
12. The State respondents have submitted that the fixation of the inter-se-seniority by putting the RG II ahead of the petitioners have not effected the writ petitioners adversely or any other way. I am unable to subscribe to the above submission as because due to the above fixation, the petitioners who were already in the service, have been placed below the RG II officers who had joined the service long afterwards and that too in a non-cadre post, on ad hoc basis. There is no justifiable reason to place the writ petitioners below the RG II officers and the fixation of the inter-se-seniority is definitely arbitrary. The length of service put in by the writ petitioners has been given a complete go bye without any reason and the claim of higher pay scale only for placing the RG II officers above the writ petitioners, A stated above, is also not found on sound footing, as, much before the merger/amalgamation of two services, both the writ petitioners and RG I and RG II officers were given indentical pay scale. It is also submitted that this is not the case of merger or amalgamation in the true sense of term because the officers of RG I and RG II have no service Rules and they have just been brought into the ambit of petitioners service Rules.
13. In view of may foregoing discussion I find that so far RG I officers are concerned, they were promoted vide order dated 19.1.1989 prior to the merger of service and they are also senior in the service, in the sense, that they had joined the government service about three years prior to the writ petitioners. As such I find no material to interfere with the order of their promotion. In the result, Writ Petition (C) No. 16/94 stands dismissed.
14. So far Writ Petition (C) No. 5/95 is concerned, in view of my finding that the fixation of seniority of the RG II officers was illegal and arbitrary and the same is set aside ; the writ petitioners are entitled to be placed above the RG II officers as per their date of Joining the service. In the Writ Petition (C) 5/95 an interim order was passed on 14.6.1995 in the following manner :
"If necessity arises for consideration of promotion to the next higher post viz, Information and Public Relations Officer, no such order of promotion shall be issued without obtaining orders from this Court."
Hence, it is needless to state that in view of the order in this writ petition, if any order of promotion was issued in favour of the RG II officers, it will stand null and void. Writ Petition (C) No. 5/95 stands allowed to the extent stated above. There will be no order as to costs.