C. Tawnluaia and Others vs State of Mizoram and Others

J. Sangma, J.—The only point for determination in these civil Rules is whether a High Court in a petition under Article 226 of the Constitution can upset the order of seniority of officers fixed by the Government on the basis of the positions placed by the Selection Board.

Concisely the facts are as follows: While Mizoram was a Union Territory, the Petitioners, the Respondents 4 to 8, and some other persons were appointed to Duty Post under the Mizoram Civil Services Rules, 1977, hereinafter for short the ''MCS'' All those appointments were made on ad-hoc, but the appointed persons were allowed to continue for years without break by extending each time for 6 months. In the Duty Post of the Subordinate Civil Service, the Petitioners Shri C. Tawnluaia, was appointed from 1.4.78; Lalmawia Chhakehhuak from 1.7.78; the other Petitioners, Lalhnuna Chcnkual, Remmawia, S. Rohinglova and F. Hmingthanga from 9.1.82. The Respondents No. 447 i.e P. Lungliana, H. Liangsailova, C. Ropinga and Vencgmawia. were appointed from 9.1.82 and Respondent No. 8. N. Zokunga, from 23.5.88. By a notification dated 29.7.85 (Annexure-7) issued by Respondent No. 3 (the Secretary, Department of Personnel and Administrative Reforms) Government of Mizoram, declared final inter se seniority list of 47 Subordinate Civil Service (Group B) officers wherein the gradation of the Petitioners and Respondents 4 to 8 were shown as follows:

Sl. No. Names

C. Tawnluaia (Petitioner)

P. Lungliana (Respondent)

Lalmawia Chhakchhuak (Petitioner)

S. Ronghinglova (Petitioner)

F. Hmingthanga (Petitioner).

H. Liansailova (Respondent)

Remmawia (Petitioner)

Lalhnuna Chenkual (Petitioner)

C. Ropianga (Respondent)

Venegmawia (Respondent)

N. Zokunga (Respondent)

These officers became eligible for consideration for inducting into MCS Grade 2 posts on substantive basis. According to this list (Annexure 7) C. Tawnluia was senior to Respondents 4 to 8. Lalmawia; S. Rochhunga, F. Hmingthanga were senior to Respondents 5 to 8, Remmawia and Lalhnuna were senior to Respondents 6 to 8. This gradation was accepted by the Petitioners and Respondents 5-8. But thereafter, by notification dated 17th March/87 (Annexure-8) issued by Respondent No. 2 (the Chief Secretary, Government of Mizoram) appointed 25 officers of the Subordinate Civil Service Group B to MCS Grade 2 on substantive basis in the order of merit placing their gradation as per recommendation of the Selection Board appointed under the Rules, In this appointment the seniority was as follows:

Sl. No. Names

P. Lungliana (Respondent)

H. Liansuilova (Respondent)

C. Ropianga (Respondent)

Venegmawai (Respondent)

N. Zokunga(Respondent)

C. Tawnlaiu (Petitioner)

Lalmawia (Petitioner)

S. Ronghinglova (Petitioner)

F. Hmingthanga (Petitioner)

Remmavia (Petitioner)

Lalhnuna.

The Petitioners came to be aggrieved as it has altered the position of the final seniority list dated 29.7.85 (Annexure-7). Hence this petition for refixing the position of the Petitioners and Respondents 5-8 on the basis of Annexure-7.

Mr. D.K. Das, the learned Counsel, first contended that since the Petitioners were senior in the final seniority list of the duty post, dated 29.7.85 (Annexurc-7) and the Government them selves were at fault for not regularising their service for long period of 8 years, the Petitioners cannot now be made to suffer by losing their seniority. He emphatically submitted that the subsequent notification (Annexure-8) is clearly discriminatory and violative of Article 14 and 16 of the Constitution and, as such, liable to be quashed. To support this contention he placed The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, There it was held that where officers were promoted without following the procedure described in the rules and they worked continuously for long periods without being reverted, then their period of continuous officiation should be counted for seniority; and other view would be arbitrary and violative of Articles 14 and 16. The second case is Union of India Vs. M.P. Singh and others, There it was held that once review DPC were held it was incumbent on it to include these persons and if necessary to evaluate their services or get it evaluated by appropriate authority, regularise them and then determine seniority, The third Case is Delhi Water Supply and Sewage Disposal Committee and Others Vs. R.K. Kashyap and Others, There it was held that length of continuous ad-hoc service must be counted in determining inter se seniority. The fourth case is State of Maharashtra Vs. Jagannath Achyut Karandikar, wherein it was held that incumbent should not be penalised for Government''s lapse to hold examination in certain years though rules enjoin Government to hold examination every year.

Mr. K.P. Pathak, learned Government Advocate, Mizoram, appearing for Respondents 1 to 3 stated that Annexure-8 had been challenged earlier by one Shri Riachao in Civil Rule No. 84/90 and that in that case this Court had refused to interfere with the impugned notification (Anncxure-8). Shri Riachao, the Petitioner in that case was not selected by the Selection Board and his name did not appear in Annexure-8. That case, therefore, is not identical in the instant case, So, it cannot be applied to the instant case. The only portion which applies to the instant case is the observation made therein i.e. "Appointment to MCS Grade II were made after due selection by a Selection Board and as such seniority (meaning in Annexurc-7) by itself was not the only criteria". Mr. Pathak then relied on Dalpat Abasaheb Solunke and Others Vs. Dr. B.S. Mahajan and Others, There it was held:

It is not the function of the Court to hear appeals over the decision of the Selection Committees and to scrutinise the relative merits of the candidates. Whether a candidate is fit for a particular post or not ''has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interferred with only on limited grounds, such as illegality or patent material irregularity in constitution of the committee or its procedure vitiating the selection, or proved malafides affecting the selection etc. It is not disputed that in the instant case the University had constituted the committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant materials before it. Therefore, setting aside the selection on the ground of the so called comparative merits of the candidates, as assessed by the Court while sitting in appeal over selection so made would not be permissible.

The selection made by the Selection Board is on the record (page 103 of File AAG 5/78). In the instant case there being no dispute that the Respondent No. 2 issued the notification (Annexure-8) on the basis of, and in the order placed by the Selection Board in their recommendation and there being no allegation of material irregularity in the constitution of the Committee or its procedure or of malafide, affecting the selection etc. the decision in 1990 SC (supra) relied on by Mr. Pathak applied and in view of that decision I see no force in the petitions. The decision relied on behalf of the Petitioners do not apply because they do not say that in selecting the officers for promoting to superior posts, the Selection Board is bound to maintain the order of former seniority list irrespective of the merits. In view of the decision of Supreme Court in Dalpat Abasaheb''s case, I hold that a High Court in a petition under Article 226 of the Constitution cannot upset the order of seniority determined by Selection Board on assessment of merits.

In the result, the petition is dismissed; the rules are discharged, but I make no order as to costs.