K. Riachho vs State of Mizoram and Others

J.M. Srivastava, J.—These two petitions under Article 226 of the Constitution of India by the same Petitioner Sri K. Riachho raise and involve the question of Petitioner''s/seniority in service were heard together and are being decided by this common judgment.

The Petitioner filed petition C. R 121 of 1986 (re-numbered 73 of 1990 Mizoram Bench) Challenging the seniority lists Annexures IV to Annexure VIII and claimed seniority above Respondents 6 to 23, on the allegations that the Petitioner belonged to Lakher minority community, an economically, socially and educationally most backward scheduled tribe In the State of Mizoram. The first written competitive examination was held for recruitment to various Class II posts under the Government of Mizoram in November, 1973. According to Government press release dated 9th April, 1974 (Annexure-1) successful candidates in the written test 120 from general category and 32 from minority community of Lakhers, Pawis and Chakmas were called for interview. For the minority communities two posts each were reserved. The Petitioner was placed first In the separate list of Lakhers for reserved scats Reserved lists for Pawis and Chakmas Were separately prepared. Thirty six persons from the general list were selected.

The Petitioner by order dated 16.7.74 (Annexure-II) was appointed Administrate Officer against one of the posts reserved, for Lakhers and joined on 16.7.74. Besides seventeen persons from the general list and one from the reserved list for Chakmas were Appointed during the life of the penal. No one from Pawis reserved list was appointed. The Petitioner stated that Respondent Smti Lalkangi Hnamte although appointed along with the Petitioner did not join during the life time of panel but Respondents 2 to 5 allowed her to join on 6.6.75. The Petitioner further stated that Respondent No. 7 was appointed on 15.10.74 and joined on 16.10.74. The Respondent no 8 not in the panel was appointed illegally on 15.10.74 and joined on 16.10.74. The Respondent No. 9 was appointed on 15.10.74 and joined on 16.10.74. The other Respondent 10 and 15 were appointed on the last date of the life of the panel on 8.4.75 and joined after the expiry of the life of panel and as such the appointments were illegal. The Respondent No. 18 was appointed on 4.12.74 and joined on 4.12.74. The Respondents 16, 1, 719, 20 and 21 were appointed after the expiry of the life of the panel on 10.7.71. The Respondent No. 22 was appointed on 29.10.75 and joined on 21.11.75. The Respondent No. 23 was appointed in 1981 on ad-hoc basis but later given retrospective effect from 14.4.75.

The Petitioner further submitted that in the inter se seniority list of Group B (former class II) Officers holding civil posts in Schedule II of Mizoram Civil Service Rules 1977 published on 19.12.80 (Annexure-IV) the Petitioner was shown at sl. No. 44 and the persons Mentioned earlier who were, junior to him having had joined service after him were placed above him. The Petitioner raised objection Another final seniority list Was published on 11.7.81 (Annexure-V). The Petitioner''s name was shown at sl. No. 41 Another seniority list was published on 8.6.83 (Annexure-VI) In which the Petitioner was shown at sl. No. 35. Again, another seniority list was published on 16.1.84 (Annexure-VII) which was the same as seniority list dated 8.6.83, yet another seniority list dated 29.7.85 (Annexure-VIII) was published cancelling the list dated 11.7.81 (Annexure V) and 8.6.83 (Annexure-VI) and declaring the seniority list dated 19.12.80 Annexure IV valid and final.

The Petitioner, therefore, filed the petition and the main contention was that even though be had Joined service on 16.7.74 earlier, even much earlier than the Respondents 6 to 23 and that some of them joined and were appointed after the expiry of the panel he has been placed below them which was highly illegal and prejudicial to his interest.

In Civil Rule No. 1076 of 1987, the Petitioner besides that already stated above stated that the Mizoram Civil Service Rules 1977 were framed and Mizoram Civil Service was constituted. The Petitioner and the Respondents Were holding posts which were feeder posts for Mizoram Civil Service, hereafter referred as MCS Grade-II.

The Petitioner along with seven others was appointed by order dated 3.12.83 to officiate in MCS Grade-II (Annexure-II). By order dated 17.3.87 (Annexure-III) 25 persons from Mizoram Subordinate Civil Service were appointed on substantive basis to Grade-II of MCS with effect from 7.1.87 and by order of the same date and also with effect from the date 7.1.87, 26 others including the Petitioner at sl. No. 7 were appointed on officiating basis to MCS Grade-II.

The Petitioner''s contention which follows from the contention in the earlier petition is that since his seniority was wrongly and illegally fixed, the order dated 17.3.87 for his officiating appointment to MCS Grade-II was wrong because his junior had been given substantive appointment and he should have been appointed with effect from 16.7.76.

The Respondents 2 to 5 in Civil Rule No. 121 of 1986 in the affidavit- in-opposition refuted the contentions and submitted that the Petitioner was No. 45 in the, merit list at the examination held for recruitment to Mizoram Subordinate Civil Service Class-II. The appointments were made to the available posts as per the merit list, but the members of Lakhers, Pawis, and Chakma community were given appointment before their seniors in the merit list as a policy of the Government to uplift the weaker section of the society. The Petitioner was appointed for that reason, before his seniors in the merit list were appointed. The appointments to all the selected candidates could not be given at the same time due to non-availability of the posts and as and when posts were available appointments from the merit list were made. However, the Government had taken the policy decision that the seniority of the candidates was to be governed by the order of merit and not the date of appointment that in regard to direct results inter se seniority was always fixed according to the marks obtained at the competitive examination. The Respondent No. 6 Smti Lalkangi Hnmate was found by the medical board not fit being the time in a family way and hence was allowed to join when she was fit and with the approval of the Government of India (at the time Mizoram was a Union Territory) retained her seniority. The validity of the panel had been extended by the Government. The name of the Respondent No. 8 had been left out from the merit list duo to bona fide mistake. The Respondent No. 23 a teacher had been working under the Government since 1968 as Block Development Officer and had been allocated by the Government of Assam to the Govt. of Mizoram and was regularised With effect from 14.4.75 and accordingly his seniority was fixed at sl. No. 37. In view of the representations received seniority lists had to be issued on a few occasions. The Respondents 2 to 5 in the other Civil Rule, in their affidavit-in-opposition in addition stated that the Petitioner was considered by the Section Board for appointment to MCS Grade-II, but since the Petitioner did not substantively hold the post in Schedule II of MCS Rules, 1977 the Petitioner could not be appointed. However, after relaxation allowed, the Petitioner and other were considered. The Selection Board in its meeting on 7.1.87 for 51 posts, 25 for promotion quota recommended 25 others for appointment on substantive basis and Anr. 26 others including the Petitioner, on officiating basis and the orders were issued accordingly.

The Petitioner filed affidavit-in-reply in both the Civil Rules.

We have heard Sri M.M. Ali, learned Counsel for the Petitioner and Sri K.M.M. Khan, learned Assistant Advocate General for the Respondents, considered the submissions made and the materials on record.

The main question which requires consideration is the fixation of seniority of the Petitioner, inter se the officers holding Civil Posts class-II, which later constituted the Mizoram Subordinate Civil Service or which posts were the feeder posts in Schedule II of MCS Rules, 1977 for the constitution of MCS Grade-II.

The basis of the Petitioner''s contention is that following the examination held and result declared he had joined on 16.7.74 and the seniority should have been fixed in accordance with length of service, i.e. reference to the date of commencement of service, because there Were no rules for fixation of seniority, Sri M.M. Ali, learned Counsel for the Petitioner also submitted with reference to press note Annexure-1 that the result of the recruitment examination did not give a combined merit list, but that merit list for reserved seats for minority communities Lakhers, Pawis & Chakma were prepared, separately from the list for general candidates and as, such the merit list could not be the basis of fixation of seniority, more so when marks obtained were not published and so there was a possibility of manipulation therein.

The Respondents have produced Annexure-A with affidavit-in opposition in Civil Rule No. 121/86 the combined result sheet with marks obtained in support of their contention that the Petitioner had 45th rank in the combined merit list which shows that the Petitioner had a total of 2291/2 marks and bears out the Respondents'' contention in regard to the rank in combined merit list the Petitioner had secured. It was on the basis of this result sheet that the press note had been issued. We do not and any substance in the Petitioner''s submission that the result sheet was not reliable. The fact that the marks were not published did not mean that the marks were manipulated. In view of the fact that a competitive examination had been held and merit list had been prepared and the seniority list later prepared from time to time had close nexus with the merit list, we find absolutely no good or sufficient reason not to accent the Respondents'' contention. The result sheet Annexure-A was reliable and the rank of the Petitioner in the combined merit list was 45.

The learned Counsel for the Petitioner has laid great emphasis on preparation of separate list for three minority communities, but as, has been explained by the Respondents it was done, to facilitate appointment of candidates from said weaker communities in the services and we find the explanation quite reasonable for otherwise there was no need to do so and accordingly we accept the explanation. However just because said separated lists were prepared, it did not follow that the combined merit list was not available of could be ignored.

The Respondents have also, we think, reasonably explained that the Petitioner had been given appointment on 16.7.74 to give representation to said minority community even when others higher up in merit list were not appointed due to then don-availability of posts for otherwise again we see no other good reason why it was so done.

While It is true that in the absence of rules for fixation of seniority the criteria of length of service in suitable cases may be reasonable basis for determination of seniority as was held in D.P. Sharma v. Union of India AISLJ v. 1989 (2) page 56, and in B. Gohain v. NEEPCO (1988) 2 GLR (NOC) 23 cited for the Petitioner, yet where a competitive examination was held for recruitment to posts and the merit list was prepared as a result of such examination we think fixation of seniority in accordance with merit list was on the basis of criteria which was sound and was correct. It may also however be noted that the Respondent No. 6 when appointed was in a family way and later was allowed to join. The Government of India had clarified that despite later joining the post she was to retain her position in the seniority list in the order of merit vide letter of February 1978 Annexure-B. The Respondents having determined inter se seniority of the Petitioner vis a vis others recruited as a result of said examination, at least did not commit any error as may call for interference in exercise of jurisdiction under Article 226 of the Constitution of India.

The Respondent No. 23 alone was not recruited on the basis of said examination but he had been in service from long before under the Government of Assam and by order dated 20.1.75 (Annexure-E) in pursuance of provisions under the North Eastern Areas Reorganisation Act, 1971 whereby the Union Territory of Mizoram was constituted, Sri P. Hlychho (Respondent No. 23) was allocated to Mizoram. He was later inducted into the Civil Service Class II and assigned seniority at sl. No. 37 in view of the service record, etc. We think no error was committed in the induction and fixation of seniority of Respondent No. 23 in Civil Service Grade-II.

The learned Counsel for the Petitioner made grievance of some of the Respondents having had joined later even after life of panel had expired. The Respondents have said that the life of panel had been extended. In any case in so far as the appointments of said Respondents were concerned the Petitioner had not questioned the appointments at the time. It was only when the seniority lists Annexure-IV and VIII were made final the same were challenged in Civil Rule No. 121 of 1986 and while so doing the Petitioner questioned the legality of appointments. We are not inclined to consider such belated challenge to the validity of appointments and hold accordingly.

For the aforesaid reasons we think the fixation of seniority of the Petitioner does not require any interference.

As regards the questions raised in the other civil rule, when the examination was held in 1973 there were even no recruitment rules for the said posts with the result that later the Selection Boards for appointment to MCS Grade-II did not consider the incumbents of the posts in Schedule II of MCS Rules, 1977 as even qualified because the posts were not held on substantive basis but only on ad-hoc basis. The relevant rules had to be relaxed and the selection board which met on 7.1.87 at New Delhi made selections for appointment to MCS Grade-II and on the basis of its recommendations 25 were appointed on substantive basis and 26 others including the Petitioner were appointed on officiating basis. We haves seen the records produced which bear out the Respondents version. The Chief Secretary, Govt. of Mizoram in his exchaustive note dated 13.11.86 had projected the matter in pursuance to which after approval, further action, to place the matter before the Selection Board referred above was taken. The appointments to MCS Grade-II were made after due selection by a selection Board and as such seniority by itself was not the criteria. In any case, since the fixation of Petitioner''s seniority was justified and correct the orders of substantive appointment of 25 officers (Annexure-III) and officiating appointment of officers including the Petitioner (Annexure-IV) were correct and require no interference.

For the aforesaid reasons, both the petitions fail and are dismissed. We make no order as to costs.