Shri Lalthuamliana vs Union Territory of Mizoram and Others

K.N. Saikia, J.—By Government of Mizoram, Appointment ''B'' Department''s Notification No. ABR. 30/77/1, dated 30th April, 1977(Auncxure II to the Pertition), consequent upon the decision of the Government of India, to implement the scheme foe reorganisation of the ministerial cadres of Mizoram Government, finding it necessary to maintain common seniority lists of the Superintendents, Assistants including Head Assistants of some district level offices and Upper Division Clerks and to fix inter se seniority among the incumbents of the above three categories of posts, a committee was appointed by the Government of Mizoram to lay down the principles for fixation of inter se seniority for the existing incumbents and to prepare common seniority lists for the above three categories of the ministerial staff. By Government of Mizoram, Appointment Department, Re-Organisation Cell, Office Memorandum No. A-23021/l/80-API(R) dated 4th June, 1981 (Annexure ''V'' to the petition), the Lt. Governor (Administrator) of Mizoram after giving due consideration to the representations received in response to that Department Office Memorandum No. A.l2011/1/80-AAT(R) dated 6th March, 1981, was pleased to fix the Inter se seniority of 22 Superintendents in the scale of Pay of Rs. 550-900/- p. m. in the Mizoram Adminstration. The Petitioner was shown at Serial No. 14, in this notification. The Petitioner impugns the recommendation of the Departmental Committee made in the pay Committee Report creating a common cadre of Superintendents and the above Notification is well as the Office Memorandum containing the inter se seniority list.

The Petitioner joined the Assam Civil Secretariat at Shillong as Lower Division Clerk on 22.8.1957; was confirmed in that posten 22.8.1961; was promoted as Upper Division Assistant on 22 9.1970 and he joined the post on 28.9.1970. After the Union Territory of Mizoram was curved out of Assam, the Secretary to the Government of Assam, T. A. P. (Mizo Cell, released the Petitioner on 1.5.72 under the North Eastern Areas (Reorganisation) Act, 1971 to enable him to report to the Chief Secretary to the Government of Mizoram immediately, On 6.5.1972 order was issued by the Deputy Secretary to the Government of India, Ministry of Home Affairs, in exercise of the powers conferred by Section 64(2) of the said Act allocating the Petitioner alongwith others belonging to the Government of Assam to join the Union Territory of Mizoram; and the Petitioner joined the Mizoram Secretariat at Aizawl on 31.5.1972 as an Upper Division Assistant and on 13.1.1975 be was promoted to the post of Assistant Superintendent in the Mizoram Secretariat, This much was before the impugned reorganisation on basis of the pay Committee''s report. In 1975 as per its pay Committees Report, the Government of Mizoram, merged the post of non-gaztted Superintendents in the Departments with those of Assistant Superintendents in the Secretariat and all those posts were redesignated at Superintendents on 30.4.1977, The impugned notification dated 90.4.1977 (Annexure II to the petition) was issued pursuant to that decision for its implementation. It appears that for its statutory basin service rules ware to be made, By notification dated 24.11.78 the posts of Superintendent in the Secretariat in the scale of Rs. 550-to 900/- P.M. was declared to be gazetted posts.

By Notification No. ABR.84/77/23-28 dated 29th August, 1979 published in the Mizoram Gazette Extra-ordinary dated 28.9.1979, in exercise of the powers conferred by the proviso of Article 339 of the Constitution of India read with the Government of India, Ministry of Home Affairs Notification No. 14/21/71-HMT (ii) dated 21st January, 1972 and all other powers enabling him in that behalf the Administrator of Mizoram was pleased to make the Mizoram Secretaries Group ''A'' Recruitment Rules, 1977 governing the recruitment to the posts of Deputy Secretaries and Under Secretaries in the Mizoram Secretariat. The Under Secretaries'' posts were to be filled up by promotion, 50% of the vacancies from the Secretariat Superintendents who are confirmed as such and have rendered not less than 3 years experience for Senior Superintendent and 5 years experience for Superintendent in their grades, and 50% of the vacancies from Civil Service Officers. It may be noted that the 1977 Rules, were published in 1979 which were given effect to from the date of publication.

By a notification dated l6th September, 1980 (Annexure IV to the petition) It was notified tout the Government of India had informed that the recommandation of the Departmental Pay Committee for effecting the changes in the ministerial cadres its Mizoram were accepted by the Government of India ; and that the said recommendations could be implemented by the Government of Mizoram under their own power ; and that with a view to implementation of the reorganisation all future recruitments/promotions should be made strictly according to the decisions indicated in that notification ; and that a com non Recruitment Rule for the ministerial cadres in Mizoram under examination and would be circulated in due Courts. This notification contained decision as regards recruitment at of L.D.O., U.D.Cs and to have common cadre for Assistants and Superintendents for all affairs under the Government and to plaee the management of the cadres of Assistant and Superintendent centralised under the charge of a Secretary, and it fixed the date of reorganisation as 14.4.76. Meanwhile the Government having prepared a provisional seniority list the Petitioner relied a representation against it on 15.1.1981, when the second provisional seniority list was prepared, the Petitioner submitted another representation dated 14.3.1981. By the impugned office memorandum dated 4.6 1981 the common seniority list was published where the Petitioner was shown at SI. No. 14 as stated above. Hence this petition.

The petitioned contentions, inter alia, are : that the impugned inter se seniority list made by the Government by making a common cadre and taking into consideration the services of all the Superintendents of the Secretariat, Directorates, or Heads of Departments without making any rules under Article 309 of the Constitution of India is illegal, ultra vires and without jurisdiction and is liable to be set aside and quashed that the purported recommendation made by the Pay Committee in its Report of 1975 for making common cadre of Superintendents, and Assistants in the Mizoram Secretariat has no reasonable basis and is discriminatory and violative of fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India ; that the Superintendents of the Mizoram Secretariat being entitled to be promoted to the post of under Secretary in the Secretariat by the virtue of the Recruitment Rules of 1977, the impugned notification dated 30.4.77, if implemented, would make the Recruitment Rules, 1977 nugatory ; that the notification dated 16.9.1980 proposing to make a common cadre of Assistants and Superintendents of all the offices in the Mizoram Government and further proposing to make common Recruitment Rules for the Ministerial cadre for the purpose of determination of inter se seniority inspite of the existence of the Rules of 1977, is illegal and without any authority of law ; that the impugned seniority list purported to have been prepared by the Government is violative of Articles 14 and 16 of the Constitution of India, and the Recruitment Rules of 1977, and is dearly violative or the principles of natural justies.

The petition has been resisted by the Respondents No. 1, and 3, namely the Union Territory of Mizoram, its Chief Secretary, and Secretary by filing an affidavit-in-opposition stating that the Association of the employees in Mizoram and the Government of Mizoram exercised option for switching over to the Central Pay Scale instead of the Assam Pay scale on 10.9.1974. In consequence of the above the Government of India constituted Departmental Pay Committee on 4.11.1974 to examine the whole matter and the terms of reference of the committee were (1) to suggest the Central Scale of pay for the various posts and service existing In Mizoram ; (2) to examine the organisational structure and recommend, If It was considered necessary, organisational changes or cadre re-structure so that the posts were remunerated equitably ; (3) to examine the various allowances then admissible to the employees of Mizoram and suggest suitable central allowances keeping in view the difficult Additions prevailing there. To do away with the multiplicity of pay scales, identical series of pay for the posts of Superintendents of the Directorate and the Assistant Superintendents the Secretariat (Re-designated as Superintendent) was recommended by the said Committee and the Government of India (sic)imated the Government of Mizoram thair acceptance of the said recommendation and also informed that the recommendation could be implemented by the Mizoram Government under their own powers and requested that the necessary changes in the ministerial cadre as suggested by the said committee could made and the action intimated to the Government of India due course ; and further informed that the employees could draw pay on the central scales with effect from 1.1.1973. The employees it is stated have accordingly been drawing the central scales from that day. The arrear dues have also been paid, It is further stated that the Petitioner Joined Mizoram Civil Secretariat on 31.5.1972 as Upper Division Assistant now redesignated by reason of the re-organisation as Assistant and is promoted as Assistant Superintendent, now re-designated by reason of the re-organisation as Superintendent on 13.1.1975. The said posts were re-designated and were given higher status and pay by reason of the reorganisation and that but for the re-organisation, the said changes would not have taken place and employees would not have been entitled to a higher status and salary and that the Petitioner having accepted the raid changes status and salary and having received the arrears of pay on that basis be was not entitled to resile from that position and contend that the said changes were not applicable to him, It has further bean stated that on the implementation of the reorganisation scheme a new set of Recruitment Rules, namely. Mizoram Ministerial Group B Post Recruitment Rules, 1980 for Suprintendents was prepared and finally approved by the Government of India on 19.11.1981. In pursuance of the Recruitment Rules at the draft stage a common provisional inter se seniority list of the Superintendents carrying the scale of pay of Rs. 550-900/- p. m. was prepared and circulated under memorandum dated 20.12.1980 and representations were invited from the officers concerned and after considering the representations received, the second provisional seniority list was prepared and representations were invited and on consideration of the representations received, the final inter st seniority list was published on 4.6.1981 by the impugned office memorandum and the Petitioner''s name appeared at SI. No. 14. It has also been stated that the re-organisation scheme of the Ministerial staff with regard to the creation of the common cadre of the Ministerial staff was initiated as far back as in 1975 and the Petitioner accepted the benefits under the said scheme and further that on 2.5.1981 there was a joint meeting of the Secretariat Service. Association, of which the Petitioner has always been a member Mizoram Directorate Ministerial Staff Association, and the District Ministerial Association at which the criterion for fixation of inter se seniority of the Mizoram Ministerial Staff follow the re-organisation scheme was discussed and the creation of a common cadre of Ministerial Staff was accepted and certain guideline for fixation of seniority was proposed by letter No. CDDS/1981 dated 4.5.1981 and the said proposal was accepted by the Government with certain modification and in the light of the said proposal as modified the subsequent seniority lists were prepared. In the circumstances it is submitted that it is no longer open to the Petitioner to contend that the said reorganisation scheme relating to the creation of a common cadre of ministerial staff is not acceptable to him.

Resisting, the petition another a(sic)vit-in-opposition was filed by the Respondent No. 14 on behalf of himself and Respondent No. 4, 5, 6, 7, 10, 11 and 13 who are all Superintendents. It is stated third this after the Union Territory of Mizoram was formed the ministerial posts in the Secre(sic). Directorate and District level Departments were filled by hitherto ministerial staff of the Mizoram District Council and ministerial staff of the Directorate and Secretariat of the Government of Assam ; and that the ministerial staff thus employed and posted in the Secretariat, Directorate and District level Departments of the Government of the Union Territory of Mizoram were initially put in a comma Ministerial service: and that the common seniority list of the entire ministerial staff under the Government of the Union Territory of Mizoram fixing inter se seniority of the staff in their respective cadre was published by the Government under Memo No. MP (IR)/82/72/49 dated 1.11.72 and that on the basis of the said common seniority list, promotions to the posts of Superintendents (Gazetted) in the Secretariat, Superintendents in the Directorates, Assistant Superintendents in the Secretariat and U.D.A. in the Secretariat, Directorate and District irrespective of whether an incumbent was employed in the Secretariat or in the Directorate or In the District were made till 14.2.1973. Thus, there was a common seniority list till 14.2.1973. it is stated that only after the Government tentatively decided to maintain separate ministerial services on 14.2.1973 amotions in the Secretariat and in the Directorates were made separately which caused grave injustice to Senior staff of the Directorate and the District level Departments. However, after the implementation of the recommendatin of Pay Committee and making a common miulsterial service cadre throughout Mizoram such injustice to senior staff in the Directorate and District level Offices has been mitigated. It is further stated that the Third Pay Commission was appointed by the Government of India in April, 1970 for revision of pay scales etc. of the Central Government employees and one of the terms of reference of this Third Pay Commission was to make recommendation regarding the pay scales of the employees of the Union Territory. It submitted its recommendation sometime in the month of July, 1973 which recommended revised scale of pay replacing the existing scales or pay ; and it also recommended that If the employees of the Administration of Union Territory of Mizoram expressed preference for Central pay scale, after the pay scales in other Union Territories and the Assam pay scale hid been revised, the matter could be reconsidered and entrusted to departmental committee comprising the representative of the Ministry of Home Affairs, the Ministry of Finance, and the administration concerned. The committee could examine the organisation structure and related to the pay scales it recommended and even suggest organisational change, if it considered necessary to do so. It is categorically stated in this affidavit-in-opposition that the employees of the Union Territory of Mizoram through their association as well as the administration, having given their option for switching over to the Central Government scales of pay, the Government of India as per afore said recommendation of their Pay Commission constituted the Departmental Committee. As per recommendation of the Departmental Committee, the Assistant Superintendents of the Secretariat having the scale of pay of Rs. 330-550/- p.m. and Superintendents in the major and minor departments having the pay scale of Rs. 375-575/- p.m. were brought under common cadre of Superintendent and their seniority was provisionally fixed and original incumbents holding the posts of Superintendent in the Secretariat were allowed to hold the same as ex-cadre posts personal to themselves. It is further stated that when the common seniority list of all ministerial staff in the Mizoram were made in 1972 the position of the Petitioner was 92nd and some Superintendents who were senior to him were in the serial positions of 8, 10, 13,14. 21,25, 28, 41 and 43. The Superintendents in the Directorate, it is stated, had higher scale of pay than that of the Assistant Superintendents in the Civil Secretariat in the previous scales of pay. Besides, the appointment of the Petitioner was made as Assistant Superintendent only on ad-hoc basis due to non-availability of approved recruitment rules in the Civil Secretariat, whereas the Superintendents in the Directorates were regular appointees on the basis of the above recruitment rules. The position of the Petitioner was never No. 1 amongst the Superintendents in the Secretariat after re-organisation.

It is further stated that following the decision, the Secretary to the Government of Mizoram, Appointment ''B'' Department issued a notification dated l6th September, 1980 for Implementation of ministerial staff re-organisation scheme and accordingly the common recruitment rules for Croup A wet made and published in the Official Gazette on 10th October, 1980 and for Group B employees i.e. Superintendent, draft recruitment rule was submitted to the Government of India for their scrutiny and necessary approval and the said rule was recently been approved by the Government of India vide their D.O. No. 114012/14/80-MZ dated 19.11.1981 pending framing of the rules. Appointment of Superintendents was done on ad-hoc basis only subject to regularisation as per approved recruitment rules which was the normal practice in the Union Territories.

It has also been stated that after the implementation of the Central pay scales and reorganisation of the Ministerial services in the Union Territory of Mizoram as per recommendation of the Pay Commission, the Government correctly fixed the inter se seniority of the Superintendents in the Mizoram ministerial services on the basis of their appointment in that cadre either in the Secretariat or in the Directorate; that after the common cadre of ministerial services was formed in the Union Territory of Mizoram on the basis of the recommendation of the Pay Committee, there could be no question of having separate cadre of Superintendents is the Secretariat of the Government of Mizoram; and that the Mizoram Secretariat (Group-A) Recruitment Rules, 1977 were framed before the re-organisation of the ministerial services and finally accepted by the Government and consequent upon the re-organisation of the ministerial services in the Union Territory of Mizoram, the said Rules bad become obsolete and inoperative; and that revised rules were being framed by the Government ; that the recuitment rules for Group C posts of the Mizoram Ministerial services bad already been framed and published in the gazette and the recruitment rules for the Group B posts bad already been framed and the Government of India bad approved the rules recently and the same was being published in the gazette; that thus the Government bad already framed the recruitment rules for Group B posts and Group C posts of the Ministerial services; and that while recruitment rule; for Group C posts had already been published in the gazette, the recruitment rules for Group B posts had recently been approved by the Central Government. Thus it was submitted that the amalgamation of the posts and the creation of the common cadre and preparation of the common seniority list were absolutely legal.

In his affidavit-in-reply to the affidavit in opposition of Respondents 1, 2 and 3 the Petitioner does not deny that he has been paid the Central pay scale and that as per recommendation of the Pay Committee for revision of scales of pay of all employees serving in the Mizoram Government including the employees of the Mizoram Secretariat, the Executive Committee of the Federation of the Mizoram Government employees and workers agreed in principle to switch over to the Central Government pattern of pay scales as per its resolution dated 6.9.1974. However, It is urged that the acceptance of the Central Government pattern of scales of pay cannot be construed in any way to mean that the employees of tie Secretariat agreed to the amalgamation of the ministerial staff of the Secretariat with the ministerial staff of the Directorates and other district level offices for the purpose of preparation of a combined seniority list. It is submitted that the employees agreed to switch over to the Central Government pattern of pay scales as such pay scales were benefical to all the employees including employees of the Mizoram Secretariat, but in the resolution dated 6.9.1974 there was nothing to show that the employees of the Secretariat made any concesssion for amalgamation of the employees of the Secretariat with the employees of the Directorates and other District level officers and that he has challenged the recommendation of the Departmental Pay Committee mads in its report, of 1975 for merging the posts of no-gazetted Superintendents in the different departments with those of the Assistant Superintendents of the Secretariat and for redesignating all those posts as Superintendents by making a common cadre; and that such recommendation was not acceptable to the Ministerial staff of the Secretariat; and that the ministerial staff did not in any way make any concession for acceptance of such recommendation of the Departmental Pay Committee, He further states that the so called Mizoram Ministerial Staff Co-ordination Committee which bad purported to pass the resolution dated 2.5.1981 was not a recognised organisation and the said committee had no authority to pass any resolution for creation of a common cadre of all the Ministerial staff including that of the Secretariat and for determination of Inter se seniority on the basis of such common cadre; and that the final seniority list prepared by the Mizoram Government tinder the office memorandum dated 4.6.1981 is liable to be set aside and quashed. It is further stated that the Mizoram Ministerial Group B post Recruitment Rules, 1980 did not provide for fixation of inter se seniority of the Superintendents; and that the said Recruitment Rules got approval of the Central Government only on 19.11.1981 and have been published in the Mizoram Gazette dated 7.12.1981 during the pendency of the present writ application in this Hon''ble Court and those rules cannot now be taken advantage of by the Respondents. According to him, the services conditions attached to the posts of Superintendents in the Secretariat were distinct and different and could not be equated with the service conditions of the Superintendents working in the Directorate and in the Mizoram Assembly Secretariat, and therefore, the common final seniority list purported to have been prepared by the Government on 4.6.1981 before the Mizoram Ministerial Group B post Recruitment Rules, 1980 got the approval from the Central Government; and that under the circumstances the impugned final seniority list was illegal and void.

In his affidavit in reply to the affidavit in opposition of the other Respondents the Petitioner admits that immediately after the creation of the Union Territory of Mizoram under the provisions of North Eastern Areas (Re-Organisation) Act, 1971 all ministerial employees working in the erstwhile district of Mizo Hills and Mizo District Council were brought together under a common list; and that from the said list employees were posted to different offices. He also says that his services alongwith two others who were serving in the Assam Secretariat at the relevant time were allocated to the Union Territory of Mizoram; and that he was posted in the newly created Mizoram Secretariat as Upper Division Clerk which was subsequently redesignated as Assistant. He does not deny that he was promoted to the post of Superintendent in the Secretariat with effect from 13.1.1975 as a result of re-organisation scheme and that since then he had been working as such in the Mizoram Secretariat. He states that the Government decided to maintain a separate cadre with effect from 14.2.1973; and that since then Government was maintaining separate ministerial services cadres till the impugned recommendation of the pay committee for maintaining the common cadre of different categories of employees which could not be legally attained. According to him, the common Recruitment Rules for Group C post published in the Mizoram Gazette dated 1.10.1980 was not applicable to his case, and that the Mizoram Ministerial Group a post Recruitment Rules,1980 which had been published on 17.2.1981 were not there at the time of reorganisation; and that there was no question of appointment of Superintendents on adhoc basis subject to the regularisation as per approved Recruitment Rules and those Rules were published only during the pendency of this writ petition. According to him, the Mizoram Secretariat Group ''A'' Recruitment Rules, 1977 were operative and working in the field and he was entitled to get the benefit thereof under the law and it was absolutely untrue and incorrect to say that the said Rules had become obsolete and inoperative; and that the revised Rules were being framed by the Government. According to him the Recruitment Rules for Group C post of Mizoram ministerial services have no relevence to all. Thus the Petitioners claim is mostly based on the 1977 Rules, which came into force in 1979, as those Rules contemplated only Superintendents for the purpose of promotion to Under Secretary.

Mr. J.P. Bhattacharjee, the learned Counsel for the Petitioner, submits that under column 10 of the schedule, 100% of the posts of Under Secretary were to be filled up by promotion i.e. 50% of the vacancies from the Secretariat service, officers and 50% of the vacancies from the Civil Services officers failing which by transfer on deputation. Under column 11 the promotion was to bo from superintendents (a) who were confirmed as such and have rendered not less than 3 (three) years experience for Sr. Superintendent and and 5 (five) years experience for Superintendent in their grades; and that under this provision the Petitioner had definitely a chance of promotion to the post of Under Secretary. This position, It is submitted, continued, until by notification No. A 12018/79/80/APT (B) dated 3rd March, 1932 published in the Mizoram Gazette same day the Mizoram Secretariat (Group A) Recuritment First Amendment Rules, 1982 amended the Schedule of the Mizoram Secretariat (Group ''A'') Recruitment Rules, 1977 was substituted as follows: In column 10(a) for the post of under Secretary the following proviso was subuituted, namely. ''Eight posts or not less than 25 per cent of posts (whichever number is greater) shall be filled by officers belonging in MCS Grade-III", and column 10(b) was substituted as follows: "The remaining posts (but not more than 75 per cent of the total posts) shall be filled by promotion from Superintendents in the scale of Rs. 550-900 filling which by transfer on deputation". The column 11 for the post of Under Secretary the following proviso was substituted, namely,-

(a) Promotion-Superintendents who have rendered not less than 5 years service in the grade.

(b) Members of Civil Service Officers in their grade pay.

(c) Transfer on deputation:....

Mr. Bhattacharjee submits that the Petitioner definitely had a better chance of promotion under the 77 Rules : and that these Rules are basically recruitment rules and there are no provisions for determination of inter se sensiority and therefore separate lists for Superintendents should hove been there. He also points out that there are incongruities between provisions in columns 10(a) and 10(b). The Mizoram Secretariat (Group-A) Recruitment First Amendment Rules, 1982 came into force with effect from the date of their publication in the official gezette, namely, 3rd March, 1982. The Under Secretaries'' posts have thereunder been made as selection posts.

Mr. Bhattacharjee makes his submissions on the two imparts namely, first, the jurisdiction part and secondly, the seniority part. As regards the jurisdiction, his main submission is that when the Mizoram Secretariat (Group-A) Recruitment Rules, 1977 were in force it was beyond jurisdiction of the State Government to have prepared the common seniority list on the basss of the notification in September, 1980. On'' the seniority part, his main submission is that the seniority list prepared vide the impugned office memorandum does not disclose any basis for fixation of seniority and there are incongruities and anomalies in respect of the officers included in the list.

Mr. N.M. Lahiri, the learned Counsel for the Respondents, submits, inter alia, that there is no inter se grievance amongst the incumbents in SI. No. 1 to 13 though some anomaly seems to be there amongst themselves, The anomaly is due to what was accepted by the employees themselves and, therefore, they have not challenged the list. The Petitioner has not challenged the competence of the legislature to frame and substitute the Rules. He only alleges violation of Articles 14 and 16. It is submitted that the Petitioner got the status of Superintendent on redesignation which was itself consequent upon the impugned re-organisation. The Petitioners promotion to the post of Superintendent was not earned by him but it was consequent upon the Impugned re-organisation itself, Before the Pay Committee''s recommendations there was no promotion for Assistant Superintendents to the posts of under Secretary and the Petitioner could not have proceeded on that basis in the writ petition. He was Assistant Superintendent of Secretariat and became Superintendent of amalgamated establishment. Under column 10(a) of the 1977 Rules, before substitution the Petitioner was not eligible. Under 11(a) also he was not within the promotion zone. As regards, the Rules, Mr. Lahiri submits that owing to re-organisation of the State curving the Union Territory of Mizoram out of Assam comprising the erstwhile Mizo Hills District of Assam, a larger number of Acts were passed and the status of the employees had to be raised without waiting for the appropriate rules to be framed and the whole thing was taken up by the legislature only in 1980, but the employees including the Petitioner already enjoyed the benefit of higher scale of pay, The re-organisation of the service was done on a rational bails, The State re-organisation was effected in 1972 and the Petitioner joined the service of the Union Territory on 1.5.1972 and was allotted to it on 6.5.72 and at that time there was a common cadre and later is was decided to maintain separate ministerial services and only on recommendation of the Central pay scale now the Government has reverted to that of the common cadres and that the Assam pattern continued only for a temporary period, in the common list of 1972 the Petitioner''s position was 92nd and all those in SI. No. 1 to 13 in the impugned seniority list were above him, and so he cannot have a grievance on that score. It was agreed by tie Joint Committee that the seniority already fixed in the common list upto 14.2.1973 should continue and that is the explanation of the apparent anomalies in the impugned seniority list as amongst serial Nos. 1 to 13 ; and the Petitioner, therefore, cannot resile from that position, the Secretariat Services Association having already agreed to that seniority in principle. The 1977 Rules alto do not give the Petitioner any right of promotion. In the inter se seniority lilt prepared after re-organisation, the Petitioner''s position is No. 14. He filed his objection against the first provisional seniority list and also against the second provisional list, and his representations were also considered. As the continuity from the earlier seniority lift was followed and the position was accepted by the Petitioner''s Association, the Petitioner cannot now make any grievance, Mr. Lahiri admits that in between SI. Nos. 1 to 13 in the list there is no Superintendent from the Secretariat, and this was because the Secretariat was established only in 1972, The Petitioner has not made any grievance against the Association which agreed at the joint meeting, It is submitted that even if there was any temporary irregularity for a period in bringing about the re-organisation without making corresponding changes to the rules, the intervening position has been regularised by substitution of the 1982 Rules. However, it should be noticed that the amendment of 1982 did not frame separate set of rules, but only brought about certain amendments.

Mr. Bhattacharjee, in reply submits that the Petitioner still has a grievance even if the. Rules are valid. The office memorandum, according to him, cannot be valid an there were two sets of Rules for Superintendent In the Directorate and Superintendent in the Secretariat, and on that ground alone it must be void. The office memorandum is stated to have been prepared on the basis of the policy decision dated 16.9.1980, but at that time the 1977 Rules were in force ; how could the policy decision proceed the statutory rules ? Besides the seniority list disclosed inconsistent principles of fixation of seniority.

There are also discrepancies between Government affidavit and the affidavit of other Respondents. The statement that the 1977 Rules have become obsolete and inoperative after the reorganisation, is not to be found in the Government affidavit and the material time, The 1977 Rules came into force in 1979. It provides for recruitment of two posts, namely, Under Secretary and Deputy Secretary. Column 10 and Column 11 provide for experience of three years and five years, These rules contemplated Superintendents and this position continued until 2nd March, 1982 when these columns came to be changed although separate list for Superintendents was envisaged and Under Secretary''s post was a non-selection post, According to him there is incongruity between Columns 10(a) and 10(b).

The questions to be decided in thin writ petition, therefore, are, firstly, whether the Mizoram administration had the Jurisdiction to prepare the common seniority list of all Superintendents of the Mizoram Secretarial and other Directorates and District level offices under the Mizoram Government and fix the inter se seniority of all the Superintendents in the scale of pay of Rs. 550 - 900/- p.m. by the impugned office memorandum dated 4.6.1981 without framing any Rules empowering, such preparation and fixation; secondly whether, even if the common seniority list has been validly prepared, It must be set aside because of lack of any consistent principle of seniority, such as date of appointment and at violative of Articles 14 and 16 of the Constitution. A third question also arises, namely, as to whether the Petitioner would be estopped from questioning the reorganisation, be having been made a Superintendent and having enjoyed the higher scale of pay consequent upon the reorganisation which was also agreed to by the organisations of the employees?

We are of the view that the validity of the Rules was not affected by disturbance, if any, in the relative prospects of promotion and the Petitioner has not shown the re-organisation to be arbitrary, capricious or unfair or without any nexus with the purpose sought to be achieved. Besides, the old Rules now have been substituted by the new Rules published in 1982.

In Firm A.T.B. Mehtab Majid and Co. Vs. State of Madras and Another, it has been ruled that once the old rule has been substituted by the new rule, it ceases to exist and it does not automatically get revived when the new rule is held to be invalid. So, when columns 10 and 11 of the Schedule to the Rules of 1977 have now been substituted in 1982, the old Rules ceased to be in force and it is the new Rules that will have to be applied; and it is accordingly clear that even if the Petitioner had some grievance during the intervening period be cannot have any grievance after the new Rules have been validly framed substituting old provisions or the 1977 Rules. It was ruled in Koteswar Vlttal Kamath v. R. Rangappa Baliga and Co. AIR 1909 S.C. 504 that there Is distinction between supersession of a rule and substitution of a rule. The process of substitution consists of two steps. First, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. Even if the new rule be invalid, the first step of the old rule ceasing to exist come into effect. In the instant case the Rules have not been challenged on the ground of lack of compentence of the legislature, but on the ground of their being violative of Articles 14 and 16 of the Constitution of India, To our mind this contention is not acceptable. It is settled law that the absence of arbitrary power is the first essential of rule of law upon which our constitutional system it bated. As was held in S.G. Jaisinghani Vs. Union of India (UOI) and Others, in a system governed by rule of law, discretion, when conferred upon the executive authorities must be continued within clearly defined limits. The rule of law from this point of view means that decision should be made by the application of known principles and rules and, in general, such decision should be predictable and the citizen should know where he is. If a decision is taken without any principles or without any rule, it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law, However, as was observed in Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, by Hegde, J., a law passed by a competent legislature in bound to be presumed to be valid until it is struck down by a competent Court. The instant substituted rules have not been struck down in the case at hand.

The submission that the preparation of a common seniority list of the Superintendents of the Secretariat and Superintendents of the Directorates is arbitrary and/or discriminatory hence, violative of Articles 14 and 16 of the Constitution of India, is also not tenable in law, In Reserve Bank of India v. N.C. Paliwal AIR 1979 S.C 2343, dealing with a similar combined seniority scheme it has been ruled that it is open to the State to lay down any rule which it thinks appropriate for determining seniority in service and "it is not compete it to the Court to strike down such rule on the ground that in its, opinion another rule would have been better or more appropriate. The only enquiry which the Court can make is whether the rule laid down by the State is arbitrary and irrational so that it results in any inequality of opportunity amongst employees belonging to the same class". In that case, the optee scheme of 1965 which was introduced by the Reserve Bank of India by the impugned circular with the object of equalising the promotional opportunities of of Grads it clerks in the Specialised Departments with those of Grade it clerks in the Specialised Departments by giving an option to the former to be absorbed in the latter, the Petitioners and other Grade it clerks of the Central Departments opted to be transferred to the Specialised Departments and they became Grade II Clerks of the Specialised Departments having the same promotional opportunities as the original Grade II Clerks i.e. the Specialised Departments. But before their turn for promotion as Grade I Clerks in Specialised Departments could come, some vacancies occurred in the cadre of Grade 1 clerks of General Departments and naturally they were filled up by promotion of Grade II Clerks in the General Departments and some of them who were thus promoted were juniors to the Petitioners. This was the position when the combined Seniority Scheme was Introduced by the Reserve Bank by its circular dated 13.5.72 which the Petitioner challenged as violative of Articles 14 and 16. It was held that there was no assurance given by the Reserve Bank that the promotional opportunities available to Grade II Clerks in its Specialised Departments would not be diminished. The Combined Seniority Scheme affected the promotional opportunities of all Grade II Clerks in its Specialised Departments, irrespective of whether they were original or transferee Grade II Clerks. It did not discriminate between transferee Grade II Clerks and the original Grade II Clerks. It treated them alike in bringing about total integration of the employees in the several Departments. Under the Combined Seniority Scheme, the integration could only be as on grade basis and therefore, if by the time the Combined Seniority Scheme came into force, Grade II clerkes, junior to the Petitioners had become Grade I Clerks in the General Departments, they could be equated only with Grade I Clerks in the Specialised Department and to these equation, no valid objection could be taken on behalf of the Petitioners. "Though it would cause heart burning among the Petitioners, it is a necessary consequence of integration. Whenever services are integrated some hardship is bound to result. Reasonable anticipation may be belied". It was competent to the Reserve Bank to Introduce the combined Seniority Schema for the purpose of integrating the clerical staff in all the departments and the Reserve Bank was not bound to welt until all the transferee Grade II clerks under the optee Scheme of 1965 were promoted as Grade I Clerks in their respective Specialised Departments. The Reserve Bank did not undertake that it will not take any for bringing about total integration of the clerical services until all the transferee Grade II Clerks were promoted. The Reserve Bank was entitled to introduce the Combined Seniority Scheme at any time it thought fit and the validity of the Combined Seniority Scheme cannot be assailed on the ground that it was introduced at a time when some of the transferee of the Grade II Clearks still remained to be promoted and was discriminatory against them. In that case some of the Transferee Grade II Clerks bad already been promoted as Grade I Clerks by the time the Combined Seniority Scheme was introduced, while others like the Petitioners had not. But that could not be helped. It was all part of the incidence of services in law; and no grievance could be made against it. Articles 14 and 16 of the Constitution could not stand in the way of the Reserve Bank in that case integrating different cadres into one cadre. It was entirely a matter of the State to decide whether to have several different cadres or one integrated cadre in its services. It was a matter of policy which did not attract the applicability of the equality clause. The integration of non-clerical services with clerical services sought to be effectuated by the Combined Seniority Scheme could not in the circumstances be assailed as violative of the constitutional principle of equality.

In R.S. Makashi v. I.M. Memon and Ors. AIR 1982 S.C. 191 : (1982) Lab. I.C. 38 where the Bombay Rationing Organisation (Fixation of Seniority) Rules, 1968 were challenged on the ground that the Rule 4 and the proviso to Rule 7 of those Rules created the Bombay Rationing Organisation by merging employees of erstwhile FOODGR Ains Distribution Organisation and employees of various departments, and seniority lists were prepared under the Rules of 1968 and their validity on ground of violation of Articles 14 and 16 of the Constitution being challenged after long delay, the High Court allowed the petition and directed the Government to prepare fresh seniority lists without taking into consideration the aforesaid provisions and to give the Petitioners consequential benefit including promotion and emoluments on the bills of such revised seniority gradation list, the Supreme Court reversing the High Court judgment held that the view expressed by the High Court that Clauses (a) and (c) of Rule 4 and the proviso to Rule 7 of the impugned Government resolution dated March 22, 1968 ware violative of the provisions of Articles 14 and 16 of the Constitution, was unsustainable in law and that the direction given by the High Court to the State Government to prepare a fresh seniority list without taking into consideration the aforesaid provisions of the impugned Government Resolution and to five the Petitioners consequential benefits, was not called for, Their Lordships also did not find any substance in the attack; levelled by the Petitioners against the legality and validity of the seniority principles laid down in the Government resolution dated 22.3.1968 and it was observed that the High Court was wrong in assuming that there was an invariable normal rule that the seniority should be determined only on the basis of the respective dates of appointment to the post that any departure from the said rule would be prima facie unreasonable and illegal. The assumption was devoid of any legal sanction. It was open to the rule-making authority to take a note of relevant circumstances obtaining in relation to each department and determine with objectivity and fairness what rules should govern the inter se seniority and ranking of the personnel working in the concerned departments arid the Courts would only insist that the rules so formulated should be reasonable, just and equitable. Similarly in V.T. Khanzode and Others Vs. Reserve Bank of India and Another, where the Reserve Bank of India Administrative Circular No. 8 dated 7.1.1978 and Office Order No. 679 of 27.4.1978 introduced a common seniority and intergroup mobility amongst defferent grades of Bank officers of Groups I, II and III, giving retrospective effect by combined seniority list and choosing 22.5.1974 as relevant date wore challenged as violative of Articles 14 and 16 of the Constitution of India, dismissing the petition, the Supreme Court observed that the system of grouping had many drawbacks bearing on the promotional opportunities of officers in the various Groups, The various departments of the Reserve Bank were grouped and regrouped from time to time. Such adjustments in the administrative affairs of the Bank were a necessary sequel to the growing demands of new situations which were bound to arise in any developing economy. The groups system had never been a closed or static chapter and it was wrong to think that the officers of the various groups were kept, as it were, in quarantine. The groups system bad been a continous process.

In Prabhat Chandra Das v. Unian of India 1984 Lab. I.C. 1763 where the amendment to Column 11 of the Schedule to the Arunachal Pradesh Secretariat Services (Recruitment to the post of Under Secretary) Rules, 1977 was challenged as violative of Articles 14 and 16 of the Constitution as the amendment added Stenographers as an additional source of recruitment to the post of Under Secretaries and thereby affecting the chances of promotion of Superintendents who were alone eligible earlier for promotion and retrospective effect was given to the amendment, a Division Bench of this Court rejected the petition observing that a rule which merely affected the chances of promotion could not be regarded as varying conditions of services. There was no dispute in that case that under the unamended Rules promotion to the post of Under Secretary would have been only from the Superintendents and the amendment had added the Stenographers as an additional source of rectuitment and that would surely affect the Petitioner''s chance of it promotion, it is now well settled by the decision of the supreme Court in the State of Mysore v. G.N. Purohit 1967 (1) SLR 733 (SC) and reiterated in R.S. Deodhor v. State of Maharashtra AIR 1974 S.C. 359 : (1974) Lab. I.C. 165 the though the right to be considered for promotion is a condition of service mere chances of promotion are not. A rule which merely affects the chances of promotion cannot be regarded as varying condition of service. In Purohit''s case the district-wise seniority of the Sanitary Inspectors was changed to State-wise seniority and as a result thereof the Respondent went down in seniority and became very junior and accordingly it was urged that it affected their chances of promotion. The contention was negatived holding that chances of promotion were not conditions of service. In Wing Commander J. Kumar Vs. Union of India (UOI) and Others, it has been held that it is settled that the service conditions pertaining to seniority are liable to alteration by subsequent changes that may be introduced in the rules and except to the extent of protecting promotions that have already been earned under the previous rules, the revised rules will operate to govern the seniority and future promotion prospects of all the persons in the concerned service. The contention that it was not open to the Government to introduce a new principle of seniority by promulgation of new rules to as to effect his right for future promotion was rejected. On the basis of the Reserve Bank of India Vs. N.C. Paliwal and Others, it is settled that it is open to the State to lay down any rule which it thinks appropriate for determining seniority and it is not competent to the Court to strike down such rule on the ground that in its opinion another rule would have been better or more appropriate. It was also settled as a result of the decision in the Seth Jamnadas Daga and Others Vs. Commissioner of Income Tax, South Bombay, that Articles 14 and 16 do not forbid creation of different cadres for Government service. It is entirely a matter for the State to decide whether to have the several cadres or one Integrated cadre in its services. That is a matter of policy which does not attract the applicability of the equality clause. The only enquiry which the Court can make is whether the rule laid down by the State is arbitrary and irrational so that it results in inequality of opportunities amongst the emyloyees belonging to same class. The contention that seniority is civil right and the State cannot interfere with it to the prejudice of the employee without giving an opportunity to be heard and that since the combined seniority scheme adversely affected the seniority of the Petitioners it was void and inoperative in law, was also rejected.

Applying the above rulings to the facts of the instant case the Petitioner''s contention that as the re-organisation scheme of the preparation of the common seniority list has affected his chance of promotion and, therefore, it is discriminatory, violative of the principles of natural justice and void, has to be rejected. He has not challenged the legislative competence.

We are of the view that as no single set of Rules dealt with the subject of merger of different cadres and the re-organisation of the service, the Government Instructions to that effect could not be said to be without Jurisdiction, At any rate even if for a temporary period there was any irregularity, the same bat now been validated by the amendment of the Rules published in 1982.

We ate also of the view that the Petitioner should not be heard against what was agreed to by the joint meeting of the employees in the interest of greater good of the larger number. However, we are not rejecting petition on this ground.

In the result, this petition is found to be without merit and hence is dismissed but without cost. The Rule is discharged.