Hav. Saisang Salio and Others vs State of Mizoram and Others

D. Biswas, J.—The 3 (three) writ Petitioners who are G.D. Havildars have preferred this writ petition invoking powers of this Court under Article 226 of the Constitution for vindicating their rights for consideration for promotion to the post of SI. Mizoram Armed Police. The factual matrix available in the writ petition is that the 3 (three) writ Petitioners along with about 3 (three) hundred others were initially recruited as Constables in the Mizoram Armed Police Battalions. Gradually they were promoted to the post of Lance Naik, Naik and thereafter, to the post of Havildar after putting in about 15(fifteen) years of service. There next promotion is to the post of Sub-inspector of Mizoram Armed Police for which they are entitled to consideration for promotion as per provision of Rule 41 of the Armed Police Manual, Part-III. It is submitted that as per provision of Rule 41, 20% of the posts are to be filled up by recruitment whereas 80% to be filled up by promotion. Their right for promotion to the post of Sub Inspector of Mizoram Armed Police has been clouded when the Government of Mizoram framed and published the Mizoram Armed Police Battalions (Group-C posts) Recruitment Rules, 1992, wherein provisions have been made to treat the Havildar Clerks recruited directly at par with them for promotion to the post of Sub-Inspector of Mizoram Armed Police.

I have heard in details the argument advanced by Mr. George Raju, learned Counsel for the Petitioners as well as the learned Government Advocate. While Mr. Raju tried to project the provisions incorporated in the Recruitment Rules of 1992 as violative of Petitioners'' rights under Articles 14 and 16 of the Constitution, the Learned Government Advocate controverted the same on the ground that right for consideration for promotion to the next higher grade as per provision of Article 41 of the Assam Police Manual, Part-III, does not in any way denude the State of its Executive Powers to adopt a policy to go for direct recruitment. According to learned Govt. Advocate, the right for consideration for promotion of the writ Petitioners may be treated as mere expectation and not a right vested in them. According to him, the decision of the Government reflected in the Rules of 1992 to treat the Cadre of Havildar Clerks as a feeder cadre to the post of Sub Inspector of Mizoram Armed Police cannot be accepted as violative of Petitioners'' rights under Articles 14 and 16 of the Constitution.

Formulation of policy in respect of recruitment is a matter exclusively pertaining to the Executive functions of the State and a decision to treat a particular cadre at par with General Duty Havildars cannot be questioned by this Court since it is a matter which calls for scrutiny of technical details for which the Government has the necessary technical expertise. Therefore, the reasons for equating the Havildar Clerks with that of G.D. Havildars for the purpose of promotion to the next higher grades cannot be interfere with by this Court in exercise of its powers under Article 226 of the Constitution.

That apart, after a careful consideration of the submission made by the learned Government Advocate, this Court is of the opinion that an expectation for promotion is not a right vested, and the State may at any time formulate policy in variation of the said expectation. Policy decision taken on administrative exigency is not open to judicial review unless it is proved to be malafide, arbitrary and without discernible principle. It is the principle of law laid down by the Apex Court in Director, Lift Irrigation Corporation Ltd. and Others Vs. Pravat Kiran Mohanty and Others, that when the right for consideration for promotion is not affected and only chances of promotion is receded, there isnoviolation of Articles 14 and 16 since the right to promotion is not a fundamental Right. In the instant case, I do find that the right of the writ Petitioners for consideration for promotion is still there as it was before with the only variation that the Havildar Clerks recruited directly will also be considered for promotion along with them. Reduction in chances of promotion is not violative of any right and not open to judicial review. In the instant case, the writ Petitioners have not been able to prove that the policy decision was malafide, arbitrary or without any discernible principle in view of the fact that the Havildar Clerks are also required to undergo a lot of training as provided in Note 5 appened to Annexure-1 of the Rules of 1992.

The Rules was framed and published on 29th January, 1992 and it has already been given effect to. This writ petition was filed in the month of May, 1997 i.e. after 5 (five) years. This writ petition, because of this long delay, cannot be entertained to reverse the process which is in force for last 5(five) years. This argument that representations were made to the Government is not a satisfactory explanation to take care of the delay. The law laid down by the Supreme Court in Rabindranath Bose and Others Vs. The Union of India (UOI) and Others, and in State of Orissa v. P. Samentaraj AIR 1976 SC 1617 makes it abundantly clear that the plea of representations pending with the Government is not a satisfactory explanation of delay and, therefore, this petition could be dismissed alone on this ground.

In the result, the writ petition is dismissed. Before parting with the records, it is, however, made clear that the appropriate authority in the State Government may like to reconsider the provisions of the impugned Rules of 1992 and make necessary changes prescribing provisions of ratio of percentage for promotion from the two(2) groups of Havildars to the post of Sub Inspector, Mizoram Armed Police.

No order as to costs.