Lalthangvunga vs State of Mizoram and Others

D. Biswas, J.—In application under Article 226 of the Constitution, the Petitioner has prayed for issue of a writ calling upon the Respondents to regularise the services of the Petitioner as Lecturer in Geography with effect from the date of his initial appointment without any break and with all other consequential benefits including back-wages, seniority, promotion etc.

I have heard Mr. George Raju, learned Counsel for the Petitioner and Mr. Vaiphei, Learned Asst. Advocate General for the State of Mizoram.

Before the claim of the Petitioner is dealt with, I propose to reproduce herein below in a nutshell the facts of the case which eventually culminated in this petition.

The Petitioner joined as Lecturer in Geography in Lunglei Government College in pursuance of the appointment order dated 20.1.1984. Thereafter, the Petitioner appeared before the Departmental Promotion Committee on 18.4.1989 for consideration of his case for regular appointment. Despite recommendations having been given for regularisation of his services, the State extended his services from time to time while Respondents No. 4 and 5 who were appointed on ad-hoc basis in the like manner was considered and appointed as Lecturer on regular basis. Thereafter the services of the writ Petitioner was terminated with effect from 1.1.1986. Again on 28.1.1986 the Departmental Promotion Committee recommended the case of the writ Petitioner for appointment to the post of Lecturer in Geography, but the Respondent State refused to appoint the Petitioner arbitrarily. The Petitioner''s case is that he had resumed the post as per direction of the Respondent Stale at Lunglei after appearing before the Departmental Promotion Committee on 28.1.1986 and he had continued as such till March, 1986. Alleging violation of the provisions of Articles 14 and 16, the Petitioner has sought for directions, as mentioned above. In his additional affidavit, the Petitioner has enclosed certain documents in support of his claim.

The State in their affidavit denied the averments made by the Petitioner and pleaded that the Petitioner was appointed on officiating basis only for a period of three months till the post was filled up after regular selection. It is submitted that the Departmental Promotion Committee which met on 18.4.1984 recommended the Petitioner for appointment on ad-hoc and trial basis for a period of six months and, accordingly, the Petitioner was appointed vide notification dated 29th August, 1984 for a period of six months only as per recommendation of the Departmental Promotion Committee. According to the State Respondent, the Departmental Promotion Committee which met on 28.1.1986 also recommended the case of the Petitioner for appointment on ad-hoc basis and, therefore, question of regularisation of the services of the Petitioner did nor arise. According to them Petitioner did not possess minimum requisite qualification and his case is completely different from that of Respondents No. 4 and 5. The maintainability of the petition has been controverted on the ground that the Petitioner not only failed to prefer an appeal under Rule 23 of the C.C.S. (C.C.A.) Rules, 1965 but also failed to move the petition under Article 226 of the Constitution within a reasonable time. It is further pleaded that recommendation of the Departmental Promotion Committee is not binding on the appointing authority i.e. the then Lieutenant Governor of the State of Mizoram and, as such, the case of the Petitioner for regularisation was rejected by the then Lieutenant Governor on the ground that the Petitioner did not possess requisite qualification as per recruitment rules in force at the relevant time. According to them, the tenure of ad-hoc appointment of the Petitioner expired on 31.12.1985 and, therefore, the claim of salary of two months subsequent thereto on the plea that he had resumed duties at Lunglei Government College on direction from the State is not entertainable in as such as the State never passed any order directing him to resume duties.

It would appear from the notification dated 20.1.1984 (Annexure-I) that the Petitioner was initially appointed for three months on officiating capacity till regular recruitment is made. Thereafter, by notification dated 29th August, 1984(Annexure-II) he was again appointed for a period of six months on trial basis. The notification dated 31st October, 1985 (Annexure-III) shows that his appointment was extended on trial basis for a period expiring on 31.12.1985 or till regular appointment is made which ever is earlier. The above three documents clearly indicate that he being an ad-hoc employee appointed on trial basis, might have been recommended by the Departmental Promotion Committee, had no right to continue after 31.12.1985. It, therefore, appears that the Petitioner did not have any right enforceable in a court of law. That apart, the proceedings of the meeting of the Departmental Promotion Committee held on 18.4.1984 shows that Petitioner was recommended for ad-hoc appointment on trial basis for a period of six months. This recommendation dated 18.4.1984 appended as Annexure-III in the affidavit filed by the State shows that the Petitioner was not found suitable for regular appointment as he did not possess Honours Degree in Graduation level. However, considering the immediate need of a Lecturer, the Committee recommended his appointment for the specified period of six months only. This recommendation obviously does not confer any right on the Petitioner for regularisation of his services. The proceedings of the meeting of the Departmental Promotion Committee held on 28.1.1986 shows that the Petitioner had submitted an application before the Committee for consideration of his case. The recommendation of the Committee is as follows:

Present: (1) Shri Lalkhama, Chief Secretary ... Chairman (2) Shri Narendra Prasad, Fin. Secy. ... Member (3) Shri Lallunghnema, Secy. Education ... Member (4) Shri Hranthanga, Director, Education ... Member (5) Shri J.Malsawma, Dy. Secy. DP&AR ... Member

The Education Department proposed filling up of one vacant post of Lecturer in Geography in the scale of Rs. 700--1300/- p.m. for Government Lunglei College. According to the Draft Recruitment Rules for the post, 100% of the post is to be filled up by direct from candidates possessing First Class Master. Degree in the subject or Second Class Masters Degree with Honours in the subject at Degree level. Age limit prescribed is 21 years to 30 years relaxable for Govt. servant and also for candidates belonging to Scheduled Caste/Scheduled Tribe. The post was duly advertised in National as well as local papers in response to which only one candidate namely:

Shri Laithangvunga submitted his application.

In course of interview, the D.P.C. carefully gone through the Educational Certificate of the candidate and based on his performance in course of the interview, the D.P.C. found him to be fit for appointment and accordingly recommends him for ad-hoc appointment to the post of Lecturer in Geography for Government Lunglei College.

It would appear from para-2 of the aforesaid proceedings that the D.P.C. did not recommended him for regular appointment. Lecturers in Government Colleges in the State of Mizoram is recruited on the basis of selection by the Departmental Promotion Committee as per provisions of Mizoram Education & Human Resources Department (Group ''A'' posts) Recruitment Rules, 1987. The essential qualification prescribed for the post of Lecturer is First Class Master Degree in the subject concerned and allied subject or Second Class Master Degree with Honours at Graduation level. This notification was amended in 1992 and it was provided that Master Degree in the relevant subject with atleast 55% marks or its equivalent grade and good academic record should be the minimum qualification for the post of Lecturer. The pleadings on record is silent as to the minimum qualification which was prescribed under the previous Rule. However from the Rules of 1987 it appears that prior to the framing of this Rule the provisions of the relevant Rules in force in Assam was also in force in the State of Mizoram. The D.P.C. in their proceedings clearly indicated that he was not qualified as per provisions of the Rules. The extracts of the office file which the Petitioner has appended also shows that his case was rejected for want of requisite qualifications.

It is, therefore, clear from the above that the Petitioner was appointed purely on ad-hoc basis and his tenure as ad-hoc Lecturer expired on 31.12.1985 and that he did not possess requisite qualification for the purpose of appointment as Lecturer. It is also clear from the above discussion that the D.P.C. never recommended the Petitioner for regular appointment. The position as emerges shows that under no circumstances he had any right vested in him for appointment on regular basis.

Mr. George Raju, learned Counsel for the Petitioner wanted to make out a case of discrimination by referring to the case of Respondents No. 4 and 5 who were regularised in their respective posts. In this connection we may refer to the averments made in para-23 of the affidavit filed by the State where it has been stated that the Petitioner did not possess requisite educational qualification and that the case of the Respondents No. 4 and 5 were completely different from that of the Petitioner. This reply by the State is inadequate and does not help the court to distinguish the case of the Respondents No. 4 and 5 from that of the Petitioner. However, from the documents annexed to the additional affidavit filed by the Petitioner, it is evident that the Respondent No. 4 and 5 were also not better situated. Therefore, this Court has no doubt that the Petitioner has been discriminated and denied justice by the State. But this is not enough. In order to succeed in a writ petition in the given circumstances of the case, the Petitioner ought to have exercised due diligence and promptitude in moving the Court for appropriate relief. The ad-hoc appointment given to him expired on 13.12.1985. He did not preferred any appeal under the C.C.S. (C.C.A.) Rules, 1965. After a gap of about nine years, he filed Civil Rule No. 42 and 1994 for the similar relief sought in this petition. The learned Single Judge vide Judgment and Order dated 27.11.1996 disposed of the said Civil Rule directing the Respondent State to consider the case of the Petitioner and pass necessary orders after taking into consideration the representations filed by the Petitioner. As there was delay in disposal of the representations, the Petitioner also moved a petition for contempt. But eventually, the contempt pardon was dropped in view of the disposal of the representation submitted by the writ Petitioner. But the law is quite settled in this behalf. In State Bank of Indore Vs. Govindrao, the Supreme Court did not entertained a petition which was filed after 10 years from the date of dismissal. Similarly in State of Haryana and Others Vs. Miss Ajay Walia, The Supreme Court held that representations filed in succession do not furnish fresh cause of action. In Union of India (UOI) and Another Vs. S.S. Kothiyal and Others, the Supreme Court held that belated writ petition deserves no consideration and repeated representations filed do not extend cause of action. From the judgment dated 27.11.1996 it appears that the Civil Rule was disposed of not on merit. The direction was to consider the representation submitted to the Government. The factum of delay of nine years in preferring the writ petition awaiting for decision of two representations for a period of nine years would have been otherwise a sufficient grounds for outright rejection of the earlier writ petition. Perhaps for his reason the learned Single Judge instead of issuing any writ disposed of the petition calling upon the Respondents to consider the representation submitted by the writ Petitioner. The Respondent State, thereafter, considered the representations and obviously they cannot be flauted for rejecting the claim of the Petitioner after lapse of nine to ten years. In State of Madhya Pradesh Vs. Bhailal Bhai and Others, the Supreme Court held that the maximum period fixed by the Legislature as time within which relief by a suit in Civil Court must be brought shall ordinarily be construed as reasonable for entertaining a petition under Article 226. The Petitioner has not been able to tender any reasonable explanation for this long delay. By now fifteen years have elapsed from the date of expiry of the tenure of his ad-hoc appointment. It would therefore be Completely unjust to relate the present settled position fifteen years back. Consequently, the petition has to fail. The petition stands dismissed.

No order as to costs.