Allowed

Smt. Hmingthanzauvi and 2 Ors. v. Sh. J. Lalsangzuala and 11 Ors.

Gauhati HC7 Sept 2022I.A.(Civil)/142/2022

Case brief

AI extract

What is this about?

This court set aside the impugned final inter-se-seniority list which placed promoted 2008 batch lecturers senior to 2007 direct recruits, directing the state to issue a fresh list conforming to the 2010 seniority list.

What did the court decide?

Impugned final seniority list dated 30.11.2021 set aside to the extent of seniority of petitioners and respondent Nos. 5, 7, 8, 9. State directed to publish fresh list showing petitioners senior. Proc

Smt. Hmingthanzauvi and 2 Ors. Vs Sh. J… — Pension and Retirement Benefits | Gauhati HC (2022)

¶1

Page No.# 1/12

¶2

GAHC030004592021

¶3

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

¶4

Case No. : WP(C)/127/2021

¶5

J. Lalsangzuala and 2 Ors. S/o Lalchawia Presently posted as Lecturer DIET, Aizawl DIET Campus, Chaltlang, Aizawl

¶6

VERSUS

¶7

State of Mizoram and 11 Ors. r/b The Chief Secretary

¶8

Advocate for the Petitioner : Mr Lalfakawma

¶9

Advocate for the Respondent : Mrs. Linda L Fambawl, G.A., Mizoram for R10 - R12

¶10

Linked Case : I.A.(Civil)/142/2022

¶11

Smt. Hmingthanzauvi and 2 Ors. Aizawl

¶12

VERSUS

¶13

Sh. J. Lalsangzuala and 11 Ors. Aizawl

¶14

Advocate for the Petitioner : Mrs. Linda L Fambawl Advocate for the Respondent : Mr Lalfakawma

Page No.# 2/12

ORDER

Date : 15.09.2023

BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

¶19

Heard Mr. Lalfakawma, learned counsel for the petitioners. Also heard Mrs. Linda L. Fambawl, learned Government Advocate appearing for the respondent Nos. 1 to 4. Mr. Victor L. Ralte, learned counsel appears for respondent Nos. 5, 7, 8 and 9. No one appears for respondent Nos. 6, 10, 11 and 12.

¶20

2. The issue is with regard to the placing of the private respondent Nos. 5, 7, 8 and 9 above the petitioners, in the impugned final seniority list dated 30.11.2021 of Lecturers, DIET, though the petitioners have initially been made senior to the private respondents in the three earlier final inter-se-seniority lists of Lecturers, DIET, issued on 09.11.2010, 10.06.2016 and 26.02.2021. The respondent No. 6 has retired from service during the pendency of this case and respondent Nos. 10 to 12 have no role to play in the dispute between the petitioners and the respondent Nos. 5 to 9. They had been impleaded as parties only on the ground that due to a stay order being issued in the present case, the respondent Nos. 10 to 12, who were seniors to the petitioners and respondent Nos. 5 to 9, could not be promoted to the next higher post of Senior Lecturers, DIET.

¶21

3. The brief facts of the case is that pursuant to the Minutes of the Special Recruitment Board/DPC for filling up of 9 posts of Lecturer, DIET dated 29.06.2007, the petitioner Nos. 1 and 2 were directly appointed to the post of Lecturer, DIET on 13.07.2007, while the petitioner No. 3 was directly appointed

¶22

Page No.# 3/12

¶23

on 30.07.2007. As per the Mizoram Education and Human Resources Development Department (Group A posts) Recruitment Rules, 1999 (herein after referred to as the 1999 Rules), the post of Lecturer, DIET is to be filled up 100% by promotion, failing which by way of direct recruitment. If the same cannot be filled up by promotion or direct recruitment, it was to be filled up by way of transfer on deputation. As there were no Officers eligible and willing from SCERT and DIET to fill up the vacant post of Lecturers, DIET as per the Minutes of the Special Recruitment Board dated 25.06.2007, the post was filled up by way of direct recruitment in terms of the 2011 Rules, pursuant to an advertisement published on 16.03.2007. The appointment orders of the petitioners clearly stated that their appointment as Lecturers, DIET was made on co-terminus basis with the scheme, since the posts were under a Centrally Sponsored Scheme (CSS).

¶24

4. The respondent Nos. 5 to 9 were promoted to the post of Lecturers, DIET on 08.10.2008 and their promotion orders also stated that their promotions were made on co-terminus basis with the scheme, since the posts were wholly under the CSS.

¶25

5. Subsequent to the above facts, the School Education Department, Government of Mizoram issued three Final inter-se-seniority list of Lecturers, DIET on 09.11.2010, 10.06.2016 and 26.02.2021, wherein the petitioners were all placed above the private respondents. However, the State respondents thereafter published a provisional seniority list of Lecturer, DIET on 26.07.2021, wherein the petitioners were placed below the private respondents. Being aggrieved, the petitioners submitted a representation dated 28.08.2021. Despite the representation submitted by the petitioners, the State respondents

¶26

Page No.# 4/12

¶27

published the impugned final seniority list of Lecturer, DIET on 30.11.2021, wherein the petitioners were placed at Serial Nos. 11, 15 and 17, while the private respondents were placed between Serial Nos. 4 to 8.

¶28

6. The impugned final seniority list had apparently been made on the basis of a Mutual Agreement dated 31.08.2020 executed between the petitioners and the private respondent Nos. 5 to 9.

¶29

7. The contents of the Mutual Agreement dated 31.08.2020, which is reflected in paragraph 15 of the writ petition is reproduced below as follows:-

¶30

“An understanding in the matter of the DIET Inter-se-Seniority between DIET Aizawl and DIET Lunglei Lecturer, 2007 & 2008.

¶31

On 31st August, 2020, the Lecturers of DIET Aizawl and Lunglei who were directly appointed in the year 2007 and DIET Lecturers who were promoted in the year 2008, taking into consideration the directions and request given by our colleague regarding the matters of Inter-se Seniority of Lecturers of DIET which is still pending before the Gauhati High Court, we are of the opinion that the matter should be under a fair law of agreement. The followings are the understanding that we have made:

¶32

DIET Aizawl and DIET Lunglei would very much appreciate it if no changes were to be made on No.A.32013/1/2010- EDN, dt. 9^th Nov, 2 010 of the "Combined Inter-se Seniority of Lecturer".

¶33

We discussed the matter regarding the verbal request made by those working at the six (6) District Resource Centres which was upgraded as a DIET in 2013 wherein they had verbally requested that in the interest of amicable resolution, promotees may be placed in the senior post. In the interest of a settlement, 2007 direct recruits hereby agree that the five promotees in the year 2008 may be promoted ahead i.e. Sh. Lalduhawma, Sh. R. Partira, Smt. Laldinmawii, Sh. TBC Lalniliana and Smt. Jane C. Vanlalmuanpuii.

¶34

Not only that, if there is a chance to recruit the DIET faculty in the State Plan, we the 2007 & 2008 promotee have agreed to give the post to the Direct recruits.

¶35

If Inter-se seniority of Lecturers of DIET is to fixed, we believe the

¶36

Page No.# 5/12

¶37

following order should be followed:

¶38

i) DIET Aizawl and Lunglei "Combined Inter-se Seniority of Lecturers2010

¶39

ii)Inter-se Seniority of Lecturers, Telescopic DIETs/DRC 2006

¶40

iii)Lecturers of Telescopic DIETS/DRC who entered service after 2006

¶41

iv) DIET Lecturers appointed on 2017

¶42

This is exclusive of those who, by nature of law are not included in the Inter-se Seniority of Lecturers of DIET, and those who have left our service due to certain reasons death, joining other service, pension, etc and those promoted to Senior Lecturer.

¶43

Currently, there are around 118 DIET Lecturer. The following are the names which we think are arranged in a particular order (Sl.No.4).

¶44

i) Sl.No.1-18

¶45

K.Hmingthanzauvi

¶46

2.. Vanlaltluangi Renthlei

¶47

Lalhunlawma

¶48

H.Lalchhandama

¶49

Lalremruati Fanai

¶50

Lalhrilliani

¶51

J.Lalsangzuala

¶52

Lalrinsangi Fanai

¶53

V.Lalliansangi

¶54

LalromawiiLailung

¶55

H.Lalhruaitluanga

¶56

Mary Vanlallawii

¶57

D.Sangzuala

¶58

Lalduhawma

¶59

R.Partia

¶60

Page No.# 6/12

¶61

Laldinmawii

¶62

TBC Lalniliana

¶63

Jane C.Vanlalmuanpuii ”

¶64

8. Mr. Lalfakawma, learned counsel for the petitioners submits that petitioner Nos. 1 & 3 have been offered jobs elsewhere and as such, petitioner Nos. 1 & 3 have resigned from their posts of Lecturer, DIET.

¶65

9. The learned counsel for the petitioners submits that the Mutual Agreement dated 31.08.2020 clearly provides that the seniority position of the petitioners and the private respondents in the final seniority list of Lecturers, DIET, should be on the basis of the final inter-se-seniority list dated 09.11.2010. However, the impugned final seniority list dated 30.11.2021 had not been made on the basis of the Mutual Agreement made, which is reflected in paragraph Nos. 1 and 4 of the said Mutual Agreement. He accordingly submits that the impugned final seniority list should be set aside and a new final seniority list should be redrawn, showing the petitioners as senior to the private respondents in consonance with the final inter-se-seniority list dated 09.11.2010.

¶66

10. Mr. Victor L. Ralte, learned counsel for the respondent Nos. 5, 7, 8 & 9 submits that though paragraph Nos. 1 and 4 of the Mutual Agreement provides that the petitioners would be senior to the private respondents, paragraph No. 2 of the said agreement provides that the private respondents would be promoted to the next higher post of Senior Lecturer, DIET, ahead of the petitioners. Accordingly, to enable the State respondents to act upon the 2^nd paragraph of the mutual agreement, it was necessary to place the private respondents above the petitioners in the impugned final inter-se-seniority list. He also submits that

¶67

Page No.# 7/12

¶68

there is no challenge made by the petitioners to the Mutual Agreement dated 31.08.2020, as well as the Meeting Minutes of the State Recruitment Board dated 12.07.2021, wherein it was decided to place the private respondents above the petitioners in the impugned final inter-se-seniority list.

¶69

11. Mr. Victor L. Ralte, learned counsel also submits that he has received information that as on date, there are 11 vacancies in the post of Senior Lecturer, DIET, wherein the petitioners and the private respondents are likely to be accommodated. He submits that that the person at Sl. No. 5 of the impugned final inter-se-seniority list has retired. He submits that Sl. No. 5 is the respondent No. 6 in the present writ petition.

¶70

12. Mrs. Linda L. Fambawl, learned Government Advocate appearing for the respondent Nos. 1 to 4 submits that the impugned final inter-se-seniority list dated 30.11.2021 has been made in pursuance to paragraph No. 2 of the Mutual Agreement dated 31.08.2020 and not in terms of paragraph Nos. 1 & 4 of the said Mutual Agreement.

¶71

13. On hearing the counsels for the parties and perusing the documents on record, it is quite apparent that the petitioners are senior to the private respondents in the cadre of Lecturer, DIET, inasmuch as, the Meeting Minutes of the Special Recruitment Board/Departmental Promotion Committee (DPC) held on 25.06.2007 clearly states that there were no eligible Officers to be promoted to the post of Lecturer, DIET at the relevant point of time and there was also no willing Officers from SCERT, DIET to fill up the quota reserved for SCERT and DIET. The petitioners, having been borne into the cadre prior to the private

¶72

Page No.# 8/12

¶73

respondents, and there being no quota/rota being applied for filling up the said posts, there is no dispute to the fact that the petitioners are senior to the private respondents. However, the issue is with regard to paragraph Nos. 1, 2 & 4 of the Mutual Agreement dated 31.08.2020. While paragraph Nos. 1 & 4 provides that the seniority of the parties will have to be in terms of the final inter-se-seniority list dated 09.11.2010, paragraph No. 2 provides/implies that the private respondents will be promoted ahead of the petitioners to the next promotional post.

¶74

14. The learned Government Advocate had been directed to obtain instructions with regard to the number of vacancies in the post of Senior Lecturer, DIET and whether the Government was intending to fill up all the said vacant posts. This direction had been made as the counsel for the petitioners and the private respondents had submitted that if all the 11 vacant posts of Senior Lecturer, DIET were to be filled up by promotion, the remaining petitioners and the private respondent Nos. 5, 7, 8 & 9 would come within the consideration zone for promotion to the said vacant posts, as they would come within Sl. Nos. 1 – 11. The Final inter-se-seniority list of Lecturers, DIET to be made, in line with the seniority list dated 09.11.2010. In this regard, the learned Government Advocate has submitted letter No. C.18011/1/2022/EDN dated 13.09.2023, issued by the Under Secretary to the Government of Mizoram, School Education Department which states that the State Government is intending to fill up all vacancies to the posts of Senior Lecturer, DIET. The letter dated 13.09.2023 issued by the Under Secretary to the Government of Mizoram, School Education Department is made a part of the record and marked as Annexure-‘X’. The same states as follows:-

¶75

Page No.# 9/12

¶76

“Subject: WP (C) 127/2021 (J. Lalsangzuala -vs- SOM) Reference: No. WP(C) 127/2021-AG(M) dt. 11.09.2023.

¶77

Madam,

¶78

With reference to the above and in compliance of Order dt. 6.9.2023 passed by the Hon'ble Court in WP (C) 127/2021 (J. Lalsangzuala -vs- SOM), I am directed to inform you that there are 11(Eleven) clear cut vacancies out of 12 (Twelve) posts of Senior Lecturer, DIET, Mizoram and the State Government intends to fill up all the vacancies as soon as amicable inter-se-seniority is fixed among Lecturer of DIET.

¶79

Further, I am directed to request you to bring to the notice of the Hon'ble Court that Lecturer of DIET, 2005 & 2008 Batch comprising of 68 Lecturers submitted their representation withdrawing their Mutual Agreement agreeing to place the petitioners in the instant WP (C) 127/2021 before them in the last seniority drawn by the Government.”

¶80

15. On a perusal of the above letter dated 13.09.2023, it is clear that the Government is intending to fill up the 11 clear cut vacancies of the posts of Senior Lecturer, DIET. The above being said, the 2^nd paragraph of the letter dated 13.09.2023 shows that there was a dispute with regard to seniority involving Lecturers of DIET belonging to the 2005 & 2008 batch comprising of 68 Lecturers. With regard to the same, it is seen that the 2005 & 2008 batch of Lecturers had been shown as senior to the petitioners and the respondent Nos. 5, 7, 8 & 9 in the Final inter-se-seniority list dated 10.06.2016, even though, they were borne into the cadre of Lecturer, DIET only in the year 2013. This 2005 & 2008 batch of Lecturers were initially working as Lecturers in the District Resource Centers under DIET from the year 2005 & 2008. The petitioners and the respondent Nos. 5, 7, 8 & 9 herein challenged the seniority list dated 10.06.2016, vide WP(C) No. 125/2016, on the ground that the 2005 & 2008

¶81

Page No.# 10/12

¶82

batch of Lecturers could not have been made senior to them.

¶83

WP(C) No. 125/2016 was allowed, vide Order dated 21.02.2018, by setting aside the Final inter-se-seniority list dated 10.06.2016, by holding the petitioners and the private respondents herein were senior to the 2005 & 2008 batch of Lecturers, DIET. As such, the dispute with regard to seniority in the grade of Lecturer, DIET is now only in relation to the petitioners and the respondent Nos. 5, 7, 8 & 9.

¶84

16. Paragraph Nos. 1 & 4 of the Mutual Agreement dated 31.08.2020 provides that the seniority list of Lecturers is to made in consonance with the Final inter-se-seniority list dated 09.11.2010.

¶85

17. As the petitioners are apparently senior to the private respondents in the posts of Lecturer, DIET, having been borne into the cadre of Lecturer, DIET, prior to the promotion of the private respondent Nos. 5, 7, 8 & 9, the inter-seseniority position of the petitioners and the private respondents, which have been finalized, vide Final inter-se-seniority list dated 09.11.2010 cannot be changed arbitrarily. As such, there being no justification placing the private respondents above the petitioners in the impugned Final inter-se-seniority list dated 30.11.2021, the impugned Final inter-se-seniority list same is set aside. The State respondents are directed to publish a fresh inter-se-seniority list of Lecturer, DIET in relation to the petitioners and the respondent Nos. 5, 7, 8 & 9, in consonance with the Final inter-se-seniority list of Lecturer, DIET issued on 09.11.2010.

¶86

18. The question of placement of the parties herein, in the Final inter-se-

¶87

Page No.# 11/12

¶88

seniority list of Lecturer, DIET having been decided, the next question to be decided is with regard to whether the private respondents can be allowed to steal a march over the petitioners for promotion to the next higher post of Senior Lecturer, DIET. It is settled law that when a candidate comes within the consideration zone, he or she will have to be considered for promotion, along with all other persons who come within the consideration zone. Though paragraph No. 2 of the Mutual Agreement dated 31.08.2020 had provided for the private respondent Nos. 5, 7, 8 & 9 to have been promoted earlier over the petitioners’ herein, the said private agreement made between the parties has now been repudiated by the petitioners. The stand of the private respondents, for being promoted ahead of the petitioners, is on the ground that they have no chance for being promoted beyond the post of Senior Lecturer, DIET, as they are going to retire in a few years time. On the other hand, the apprehension of the petitioners is that the delay in their promotion would eventually be an obstacle in getting further promotion beyond the post of Senior Lecturer, DIET due to loss of seniority in the promotional grade.

¶89

19. As stated earlier, the petitioners herein are senior to the private respondents in the grade of Lecturer, DIET and the next promotional post for the petitioners and the private respondents is the post of Senior Lecturer, DIET. As the parties herein have taken a stand that they would all come within the consideration zone for promotion to the post of Senior Lecturer, DIET, even if their seniority position is made in accordance with the Final inter-se-seniority list dated 09.11.2010 and as the State Government has, vide their letter dated 13.09.2023, stated that they intend to fill up all the 11 clear cut vacancies of the post of Senior Lecturer, DIET, this Court is of the view that the question of the private respondents stealing a march over the petitioners for promotion to the

¶90

Page No.# 12/12

¶91

post of Senior Lecturer, DIET, is no longer an issue.

¶92

20. In view of the above facts, this Court holds that the inter-se-seniority position of Lecturer, DIET between the petitioners and the respondent Nos. 5, 7, 8 & 9 would have to be maintained in terms of the Final inter-se-seniority list dated 09.11.2010. The petitioners and the private respondent Nos. 5, 7, 8 & 9, who would be within Sl. Nos. 1 – 11, in terms of the new seniority list to be published ,would be in any event, be in the zone of consideration for the promotion to the next higher post of Senior Lecturer, DIET. Consequently, the impugned Final inter-se-seniority list of Lecturer, DIET dated 30.11.2021 is set aside only to the extent that it involves the seniority position of the petitioners and the respondent Nos. 5, 7, 8 & 9. The State respondents are directed to issue a new Final inter-se-seniority list of Lecturer, DIET, showing the petitioners to be senior to the respondent Nos. 5, 7, 8 & 9. Accordingly, the State respondents are directed to start the process for filling up the 11 clear cut vacancies of Senior Lecturer, DIET, in terms of the seniority list to be made in line with the Final inter-se-seniority list dated 09.11.2010. The process for promotion should be completed at the earliest and preferably within a period of 3 (three) months from the date of receipt of a copy of this order.

¶93

21 . The writ petition is accordingly disposed of.

¶94

JUDGE

¶95

Comparing Assistant

Smt. Hmingthanzauvi and 2 Ors. v. Sh. J. Lalsangzuala and 11 Ors.

Case brief

What is this about?

What did the court decide?

Smt. Hmingthanzauvi and 2 Ors. v. Sh. J. Lalsangzuala and 11 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Meena Lalthanzuali and 58 Ors. Vs The General Manager Power Grid Corporation of India Ltd. and 4 Ors.

Central Administrative Tribunal Vs Union of India and 3 Ors.

Sh Lalrinawma and 4 Ors. Vs The State of Mizoram r/b the Secretary to the Govt. of Mizoram, Lad Deptt. and 6 Ors.

Smt. a. Vanlalzawni and Anr. Vs Dr. Renu Sharma and 4 Ors.

Sh. Lalnuntluanga Vs Union of India and 6 Ors.

Sakir Uddin Vs State of Mizoram