Sh. Vanhnuailiana vs State of Mizoram amd Ors.

J. Sangma, J.—By this petition under Article 226 of the Constitution the Petitioner has prayed for quashing the final inter se seniority list (Annexure VI) which the Director of Accounts and Treasury, Government of Mizoram (Respondent No. 3) published on 17.8.83 and for declaring himself as senior to Respondents No. 5 to 12.

In short the Petitioner''s case is this: From 22.8.73 the Petitioner was serving as Accountant in the office of the Inspector General of Police, Mizoram. By a memo dated 1.5.75 (Annexure I) the Director of Community Development, Mizoram appointed him as Internal Auditor in his Directorate office. This appointment was made with approval of the DPC. In this appointment it was stated:

The appointment is purely temporary and may be terminated at any time without notice or assigning any reason thereof. The Petitioner joined this post on 19.5.75. Thereafter, by notification dated 17.3.81 (Annexure-II) the Government of Mizoram in Finance Department amalgamated the Petitioner''s post (i.e. Internal Auditor) in Finance &. Accounts Service (Group A, B and D) and there the Petitioner was made equal to Assistant Auditor. In this notification it was stated that inter so seniority of the officers would be mixed as per Rule and procedure. Then by order No. 306/1981-82 dated 14.10.81 (Annexure III) the Respondent No. 3 published a provisional inter se seniority list as on 25.7.83 showing the Petitioner as junior to Assistant Auditors (Respondents No. 5-12). This was done by counting the Petitioner''s service only from 17.3.81 i.e. the date on which he was amalgamated in Finance & Accounts Service. In this order it was stated that persons aggrieved could make representation to him within 30 days for necessary correction for publishing the final seniority list.

The Petitioner submitted representation on 12.11.81 (Annexure-IV) stating that he became Internal Auditor in CD. Office from 19.5.75 and as the Government amalgamated his post in Finance and Accounts Service making his post equal to Assistant Auditors he is entitled to be made senior to Respondents 5-12 who became Assistant Auditors in Finance and Accounts officer after 19.5,75.

By order No. 38.1983-84 dated 17.8.83 (Annexure VI) the Respondent No. 3 published final seniority list in which the Petitioner was again shown as junior to Respondents No. 5 to 12. The Petitioner preferred another representation on 1.9.83 (Annexure VIII) to Respondents No. 3 for review of the final seniority list and in this representation he referred to letter No. CDE. 5/pt dated 15.5.80 addressed by the Director of Community Development to Under Secretary to the Government of Mizoram Finance Department, slating that in this letter (No. CDE. 5/pt) the Director communicated that the Internal Auditor accepted amalgamation "with a view to counting seniority in the cadre from the date of approval of the proposal for amalgamation or the dale of appointment in the present cadre, whichever is earlier".

By letter dated 13.9.83 (Annexure-X) the Joint Director, Accounts and Treasuries, informed that his representation dated 1.9.83 had been thoroughly considered and that in view of the Government of India''s clear instruction on fixation of seniority on ex-cadre persons into cadre post there was no ground to change the order.

Being dissatisfied, the Petitioner gave advocate''s notice on 1.8.85 u/s 80 CPC having failed to get relief he filed this petition under Article 226 on 3.3.86 before this Court (Guwahati) reiterating the claim which he made before Respondents 1-4, namely, that as he was appointed Internal Auditor in CD. office with approval of DPC and he joined the post on 19.5.75 and the Government subsequently amalgamated his post in Finance & Accounts office, he is entitled to be made senior to Respondents No. 5 to 12 who admittedly became Assistant Auditor in Finance & Accounts office alter 19.5.75. In other words, he contended that grading him below Respondents 3-12 without counting his service from 19.5.75 is discriminatory and illegal and it violates Articles 14 and 16 of the Constitution.

This Court al Gauhati gave rule to lire Petitioner on 4.3.86 and later on transferred the case to this Bench (Aizawl Bench) for disposal.

Respondent No. 3 (Director, Accounts &. Treasuries) filed counter affidavit on 22.2.91 on behalf of Respondents 1-4, Respondents 5-12 neither appeared nor filed affidavits. In the counter affidavit Respondent No. 3 stated that the Petitioner''s appointment as Internal Auditor in CD. office being purely temporary and terminable without notice and the same not having been made according to the recruitment rules no right has accrued to him to claim seniority from 19.5.75 and therefore the Petitioner''s service as Assistant Auditor was rightly counted only from 17.3.81 i.e. the date on which he was eneadred as Assistant Auditor in the Finance & Accounts department. He stated that even the provisional list was prepared in accordance with the instruction of Finance Department conveyed under U.O. No. FIN (E) 24/81 dated 14.7.81 (Annexure-A) showing the Petitioner at serial No. 10. Furthermore he stated that on the advice of Appointment Department the Petitioner was placed in the final seniority list at serial No. 9 below the Respondents 5-12. Thus the Respondents desired dismissal of the petition.

The Petitioner filed affidavit in reply on 25.8.92 stating that his service as Internal Auditor of CD. office had been subsequently made permanent by Government order dated 18.8.78 (Annexure XVI) and that the amalgamation having been made by Government themselves and not at his request he is entitled to get seniority on the basis of his service in the previous (CD.) office.

Mr. D.K. Das, learned Counsel for the Petitioner, has argued that as the Petitioner was appointed Internal Auditor in the Directorate of C.D. with approval of DPC and he joined the post on 19.5.75 which; though temporary, was made permanent from 18.8.78 he is entitled to count his service for seniority from 19.5.75 and therefore he is senior to Respondents 5-12 who joined as Assistant Auditors after 19,5.75. To support this he placed V.S. Murty and Others Vs. Deputy Chief Accounts Officer and Others, There it was held:

If the transfer was on administrative ground from one department or office to another, the seniority of the transferred Government servant shall be fixed with reference to the date of his first appointment in the former department or office from where he is transferred. If on the other hand, the transfer is at the request of the concerned Government servant, his seniority will be determined with reference to the date of his appointment in the department to which he is transferred.

The other placed by Mr. Das, is Davinder Singh v. Punjab State Electricity Board 1990 (3) SLR 113 (P & H) There the Respondent No. 2 whose name was Jaspal Singh was appointed Sectional officer in the Haryana State PWD (B&R) on 22.10.68. He served there and came over to Punjab Slate Electricity Board Patiala, as Sectional Officer on 5.5.70 and was promoted to Assistant Engineer on 11.12.75. The Board in the tentative seniority list showed his gradation without taking into consideration the service rendered by him from 1968 to 1970 in the PWD (B&R). On his representation the Board revised his case by counting his earlier service under State Government towards his total length of service. This was challenged by a writ petition on the ground that the service rendered by him under the State Government could not be taken into account for the purpose of fixation of seniority and that even if it was to be counted he (Respondent No. 2) still remained junior to the Petitioner. It was found that Respondent No. 2 completed 5 years service on 21.10.73, on which he acquired eligibility for being considered for promotion us Assistant Engineer, under the Board against 10 percent seat meant for the promotees and as this had not been done by the Board before issuing the tentative seniority list the board has now granted necessary relief by him as his total service (by adding the service rendered by him under the State Government) works out to lie longer than that of each of the Petitioners. It was held that the mistake was corrected by the Board and the same could not be called in question.

Mr. Neihchlunga, learned Government Advocate for Mizoram, contended that gradation was fixed by Respondent No. 3 according to the instruction of Finance Department dated 14.7.81 (Annexure-A of the counter affidavit). It appears dial Annexure-A is a photostat copy of a note sheet of certain file in Finance office which reads as follows:

U.O. No. FIN (E) 24/81 dt. 14.7.81

As per provision of the Recruitment Rules the posts of Asstt. Auditors are to be filled up by open competition. The Internal Auditors of C.D. Deptt. were not recruited accordingly, as such their seniority as Asstt. Auditor may be fixed in the cadre from the date or issue of the order en-cadering the posts.

Sd/- Illegible

Director/AC

14.7.81

On this ground he supported the final seniority list (Annexure VI).

In the instant case on recommendation of the DPC which was approved by Government on 29.4.75 (Annexure XIV) the Petitioner was appointed Internal Auditor of C.D. Department on 1.5.75 and he joined the post on 19.5.75. The post though temporary was converted into a permanent post by order dated 18.8.78 of the Development Commissioner (Annexure XVI). He did net make a request to transfer him to Finance & Accounts office; but the Government for administrative reasons, amalgamated his service in Finance and Accounts office as Assistant Auditor by notification dated 17.2.81 (Annexure II). So the two decisions placed by the Petitioner apply to his case and there can be no escape from holding that the Petitioner''s service as Assistant Auditor must be counted from 19.5.75 on which lie joined as Internal Auditor in C.D. office and as admittedly the Respondents No. 5-12 joined as Assistant Auditor after 19-5-75 the Petitioner should have been made senior to them in the final seniority list. In the face of the above two decisions Annexure A is of no avail to Respondents 1 -4.

In the result, the petition is allowed and the final seniority list (Annexure VI) is quashed and set aside. The Respondents No. 1-4 are directed to republish the final seniority list by showing the Petitioners as senior to Respondents 5-12. The rule is made absolute but without costs.