ER LALMUANZOVA Vs. STATE OF MIZORAM

JUDGEMENT

(1.) The petitioner, who is serving as Executive Engineer in Public Health Engineering Department, Govt. of Mizoram by the present writ petition has challenged the order dated 5.9.2002 issued by the Secretary to the Govt. of Mizoram, Public Health Engineering Department, promoting the respondent No. 5 to the post of Executive Engineer with effect from 4.4.91 i.e. the date when the petitioner was promoted to the said post and also for setting aside inter-se-seniority list of Executive Engineers in the said department issued vide notification 9.4.03, placing the respondents No. 5 over the petitioner.

(2.) The facts leading to the filing of the present writ petition, in brief, is that the respondents No. 5 as well as the petitioner were initially appointed Asstt. Engineer/Sub- divisional Officer, Public Health Engineering Department on adhoc basis on 3.12.85 and 6.5.86 respectively. Services of the petitioner and the respondent No. 5 in the cadre of Asstt. Engineer/Sub-divisional Officer was regularized with effect from 28.7.86 on the recommendation of the selection board constituted as per provision of Mizoram Public works /Public Health Engineering Departments, (Group 'B' post) Recruitment Rules, 1979, wherein the respondent No. 5's name was placed at serial No. 12 and that of the petitioner at serial No. 18. The petitioner was a graduate in Civil Engineering and respondent No. 5 was a Graduate in Mechanical Engineering. The petitioner thereafter on 7.12.88, had passed the departmental examination in Engineering and was considered for promotion to the post of Executive Engineer along with the respondent No. 5 and others by the DPC in its meeting hetld on 22.3.91, wherein the petitioner was recommended for promotion but the respondent No. 5 was not recommended as he: had not passed the Departmental examination in Accounts and Engineering. Accordingly, order of promotion dated 4.4.91 was issued promoting the petitioner to the post of Executive Engineer. The Commissioner arr.d the Secretary to the Govt. of Mizoram PHE department on 18.8.92 has passed an order to the effect that Asstt. Engineer/Sub- divisional Officers working in PHE department are required to pass the departmental examination in engineering and accounts for the purpose of promotion to the next higher rank or to allow to cross efficiency bar at any stage of time scale of pay. The Commissioner vide notification dated 5.6.92 for the first time constituted a board of departmental examination in engineering and accounts for engineering officer of PHE department and requiring the board to prepare the draft syllabus for conducting departmental examination in the level of Asstt. Engineer/ Sub-divisional officer and also to conduct the departmental examination yearly starting from the year 1992. Accordingly the departmental examination was conducted by the PHE department for the first time in the year 1992 wherein the respondent No 5 appearing in the departmental examination in engineering and has passed the same on the first attempt on 25.9.92. The respondent No. 5 was there after promoted to the post of Executive Engineer by order dated 7.1.93. The Government of Mizoram vide order dated 14.11.95 relaxed the condition prescribed for passing departmental examination, as condition of eligibility for promotion, to the post of Executive Engineer, in respect of the respondent No. 5 and another with retrospective effect and adviced the department to place the matter before the Public Service Commission for consideration of their promotion to the post of Executive Engineer with retrospective effect. The said decision was taken as no departmental examination was held in respect of mechanical and electronic engineers in Public Health Engineering department prior to 1992. Accordingly, the DPC in its meeting held on 22.12.95 recommended the names of the; respondent No. 5 and another for promotion to the post of Executive Engineer with retrospective effect from 4.4.91 i.e. the date: on which the petitioner was promoted to the: said post. The Govt, after the accepting the recommendation of DPC, vide order dated 25.1.96 promoted the respondent No. 5 and another to the post of Executive Engineer with effect from 10.4.91 by wrongly taking the date of joining of this petitioner as 10.4.91 The Government thereafter issued a notification dated 5.9.2002 in supersession of the notification dated 21.1.96 giving the promotion to the respondent No. 5 with effect from 4.4.91 i.e. the date on which tha petitioner took over the charge of Executive Engineer. The petitioner thereafter submitted a representation dated 16.9.2002 against the said order dated 5.9.2002. The final inter- se-seniority list of Executive Engineer was published on 9.4.2003 placing the respondent No. 5 at serial No. 4 and the petitioner at serial No. 5 and the other person who was promoted with the respondent No.5 at serial No. 6. The petitioner therefore filed the present writ petition challenging the retrospective promotion of respondent No. 5 and fixation of his seniority over him in the rank of Executive Engineer.

(3.) I have heard Mr. M. Zothankhuma, learned counsel for the petitioner, Mr. N. Sailo learned State counsel appearing on behalf of respondents No. 1 to 3 and Mr. George Raju appearing on behalf of respondent No. 5.