Hrishikesh Roy, J.(CAV) - Heard Mr. K.N. Choudhury, the learned Senior Counsel appearing for the appellants (writ petitioners). Also heard Mr. A. Sarma, the learned Addl. Advocate General, Mizoram, who represents the respondent Nos.1 � 5. The 6th respondent is represented by the learned Senior Counsel Mr. D. Das.
2. This case is an inter-se seniority dispute arising from the Gradation List dated 21.12.2010 (Annexure-XIX), whereby the private respondent No. 6 was placed at Sl. No.1 and the writ petitioners were placed at Sl. Nos. 2, 3 & 4 respectively. The challenge to the lower placement of the 3 writ petitioners was dismissed by the judgment and order dated 20.9.2013 (Annexure-XXV) in the WP(C) No. 52/2011 of the Aizawl Bench and that is how this Writ Appeal is filed by the three aggrieved writ petitioners.
Background
3. The writ petitioners were appointed as Child Development Project Officers (hereinafter referred to as "the CDPO" in short) under the Integrated Child Development Scheme in the Social Welfare Department of Mizoram through the Notification dated 16.12.1982. The appointments were made on ad hoc basis for a short period subject to regularisation in due course. Likewise, the respondent No. 6 was appointed as the District Social Welfare Officer (hereinafter referred to as "the DSWO" in short) on ad hoc basis, vide Notification dated 13.9.1983.
4. Subsequently through the Notification dated 17.6.1986, the first two CDPOs were posted as Programme Officers and by the next Notification dated 27.7.1993, the 3rd writ petitioner too was posted as a Programme Officer. The three writ petitioners were then confirmed in the cadre of CDPO w.e.f. 16.12.1984, through the Notification dated 15.9.1993 (Annexure-VII). On the other side the respondent No.6 was confirmed as the DSWO w.e.f. 14.9.1985 (Annexure-VIII) through another Notification dated 15.9.1993.
5. On 28.1.2004 (Annexure-XIII), the Mizoram Government upgraded the Scale of Pay of the Programme Officers from Rs. 8000/- � 13,500/- to Rs. 10000/- � 15,200/- P.M. w.e.f. 2.1.2004. Following such up-gradation of Pay Scale, the post of Programme Officers was brought out of the feeder cadre, for considering promotion to the post of Centre Director, under the Mizoram Social Welfare Department (Group-''A'' Post) Recruitment Rules, 2002 (hereinafter referred to as "the 2002 Rules"). Thereafter the service of the three writ petitioners in the cadre of Programme Officers were regularised w.e.f. 10.8.1986, 21.8.1986 and 6.8.1993 respectively, through the Notification dated 10.2.2004.
6. In the meantime, the 6th respondent was promoted to the higher post of Centre Director, on the basis of the recommendation made by the MPSC w.e.f. 26.6.2003 under the Notification dated 30.12.2003. But on account of the judgment dated 7.2.2008 (Annexure-XVII) in the WP(C) No. 5/2007 of the Aizawl Bench, the promotion of the 6th respondent to the post of Centre Director was given effect from 2.1.2004, by interfering with the Government''s decision to promote him from 26.6.2003, by quashing the Government Notification dated 4.10.2006. Subsequently, the Mizoram Government finalised the inter se seniority of the Group-''A'' Officers under the Social Welfare Department, through the Notification dated 21.12.2010, where the respondent No.6 was placed in the 1st position above the writ petitioners and the writ petitioners were placed at Sl. No. 2, 3 & 4 respectively, in the Gradation List.
7. Aggrieved by the gradation list notified in the cadre of Group-''A'' Officers, the WP(C) No.52/2011 was filed in the Aizawl, Bench by the three Programme Officers to challenge the placement of the 6th respondent above them, in the Gradation List dated 21.12.2010 (Annexure-XIX).
Contention before the writ Court
8. According to the writ petitioners, their seniority should have been fixed on the basis of the length of service and since the writ petitioners joined service as CDPO prior to the 6th respondent, who joined as DSWO, they ought to be considered senior to the private respondent.
9. On the other hand, the respondent No. 6 claimed that he was promoted to the higher post of Centre Director and at that stage even after promotion of the private respondent, the writ petitioners served as Programme Officers which is a feeder cadre post. Therefore the respondent No. 6 submitted that he was rightly declared senior to the writ petitioners by virtue of his joining the higher post of Centre Director. Thus the reflection of the inter-se seniority of the incumbents in Group-''A'' service in the Gradation List of 21.12.2010 was contended to be correct.
Observation of the writ Court
10. The learned Single Judge noted that the respondent No. 6 was promoted as Centre Director from the post of DSWO on the basis of recommendation of the MPSC, through the notification dated 30.12.2003 and his promotion in the higher cadre is to be reckoned from the 2.1.2004, on account of the judgment rendered in the WP(C) No. 5/2007 (P.L. Liandinga and others v. State of Mizoram and others, (2014) LabIC 602). On the other hand, the writ petitioners were serving as Programme Officer (feeder cadre for the post of Centre Director) as on 2.1.2004, which was the effective date of promotion of the 6th respondent to the higher post of Centre Director. Thus, the learned Single Judge found that the writ petitioners served in the lower cadre of programme officers on the date of promotion (2.1.2004) of the 6th respondent to the higher post of Centre Director. On this basis, the higher seniority placement of the 6th respondent in the Gradation List was found to be justified on account of the earlier promotion to the higher rank, of the private respondent.
Submissions in the writ Appeal
11. The appellants question the legality of the impugned verdict by placing reliance on the Notification dated 28.1.2004 (Annexure-XIII), whereby the post of Programme Officer was brought out from the feeder cadre posts, for considering promotion to the post of Centre Director. Under this Notification, the Pay Scale of Programme Officers was also upgraded w.e.f. 2.1.2004. Mr. K.N. Choudhury, the learned Senior Counsel argues that this Government Notification of 28.1.2004 was erroneously construed and that is why a wrong verdict was given against the writ petitioners. He submits that when the Pay Scale of the Programme Officers was upgraded w.e.f. 2.1.2004, they are entitled to be treated at par with the 6th respondent for the purpose of seniority, as the promotion to the respondent No.6 in the post of Centre Director was made effective only from 2.1.2004 in terms of the judgment in the WP(C) No. 5/2007. Thus when the writ petitioners have received up gradation benefits under the Notification dated 28.6.2004 and the 6th respondent has been promoted to the higher post from the same date i.e. 2.1.2004, their respective length of service according to Mr. Choudhury should determine the inter-se seniority.
12. On the other hand, Mr. A. Sarma, the learned Addl. Advocate General on behalf of the State of Mizoram submits that the 6th respondent was promoted and joined the post of Centre Director on 2.1.2004 and till then, the three writ petitioners were still serving in the lower cadre of Programme Officers. Therefore he argues that the writ petitioners by virtue of their length of service in the lower rank, can''t claim seniority over the private respondent, who was promoted to the higher post w.e.f. 2.1.2004.
13. The higher seniority placement for the 6th respondent through the Notification dated 21.12.2010 (Annexure-XIX) is supported by Mr. D. Das, the learned Senior Counsel by projecting that promotion of respondent No. 6 was made on the basis of recommendation made by the MPSC and that is how, he was promoted to the post of Centre Director w.e.f. 2.1.2004. At that stage, the writ petitioners served only as Programme Officers which was a feeder cadre post. He further submits that only by up gradation of the Pay Scale of the Programme Officers, through the Notification dated 28.1.2004, they can''t claim seniority in the higher cadre, by computing their length of tenure in the lower cadre post of Programme Officers.
Discussion and decision
14. The inter se seniority issue in the present case was answered in favour of the 6th respondent by the learned Single Judge on the basis of the prior promotion of the 6th respondent as Centre Director and the Court opined that the length of service in the lower post rendered by the writ petitioners can''t be the criteria for determining their seniority over the private respondent. The relevant question before us is whether the implication of the Government Notification dated 28.1.2004 (Annexure-XIII) was appropriately construed by the learned Single Judge, in determining the seniority question.
15. From the 2002 Rules, it is apparent that promotion to the Centre Director''s post is to be made from the feeder cadre constituted by Programme Officers/Superintendent(Homes)/CDPOs/Asstt. Director/Special Officer (Nutrition)/District Social Welfare Officers with 5 years regular service, in the respective grade. But following the up-gradation of the Pay Scale of Programme Officers, the post of Programme Officers was brought out from the feeder cadre for considering the promotion to the post of Centre Director, through the Notification dated 28.1.2004. But this exit from the feeder cadre for the Programme Officers was made effective from the date of Notification i.e. 28.1.2004. But what is significant is that the 6th respondent was promoted to the superior post of Centre Director w.e.f. 2.1.1004 and therefore it is obvious that by the time the post of Programme Officer was excluded from the feeder cadre, the 6th respondent was already serving in the superior post of Centre Director.
16. That apart, the post of Programme Officer was made equivalent to the post of Centre Director only w.e.f. 4.1.2010, through the Mizoram Social Welfare Department (Group-''A'' Post) Recruitment (1st Amendment) Rules, 2009 (hereinafter referred to as "the 2009 Amendment Rules") and until the amendments were incorporated in the Rules, the status of the Programme Officer was reflected below that of the Centre Director''s post. Thus the post of Programme Officer (notwithstanding the notification of 28.1.2004) was formally excluded from the feeder cadre for the higher post of Centre Director, only through the 2009 Amendment Rules, brought about by the Government Notification dated 4.1.2010.
17. In our understanding, the Government Notification dated 28.1.2004 doesn''t ipso facto result in promotion of the Programme Officer to the higher cadre of Centre Director and the maximum benefit that the Programme Officer can claim from the said notification is that their Pay Scale was upgraded to a higher level, through the Government Notification dated 28.1.2004. But as already noted, the 6th respondent was promoted to the higher grade post of Centre Director w.e.f. 2.1.2004 and in that context, the pay up-gradation to a higher pay scale without their being corresponding movement from a lower position to a higher grade, can''t justify a claim for higher seniority placement under service jurisprudence by those, who are yet to move on that date to the higher post, from the feeder level cadre.
18. It must also be borne in mind that the respondent No.6 was recommended for promotion to the higher post by the Public Service Commission through a legitimate exercise whereas the writ petitioners continued to remain in the feeder cadre post of Programme Officer. Just because the Programme Officer were brought out from the feeder cadre post through the Government Notification dated 28.1.2004, the actual amendment to upgrade the post of Programme Officer to that of the Centre Director was made only through the 2009 Amendment Rules, notified on 4.1.2010. Thus when we construe the implication of the belated changes in the Rules, it is obvious that without the formal amendment of the Rules, the Programme Officers do not get upgraded to the cadre of Centre Director, until the schedule of the Rules were appropriately amended in 2009.
19. That apart, if maximum benefit is conferred upon the Programme Officers under the Government Notification of 28.1.2004, the writ petitioners exited out of the feeder cadre (for making promotion to the post of Centre Director) only from the date of notification i.e. 28.1.2004. But as earlier noted, the 6th respondent was promoted to the higher post of Centre Director w.e.f. 2.1.2004 itself and therefore in our opinion, those who claim a right to the higher post on the strength of the notification dated 28.1.2004, can''t steal a march over an incumbent, who is already promoted to the higher post of Centre Director w.e.f. 2.1.2004.
20. Under service jurisprudence, the tenure of service can be a basis for determination of seniority only amongst those, who are in the same cadre but the length of service in two different grades can''t naturally be the criteria for determination of seniority in the higher post. In certain circumstances, pay up-gradation can be construed as promotion but in the facts of the present case, where the 6th respondent was regularly promoted to the higher post whereas the writ petitioners simply secured the benefit of pay up-gradation, it would be incorrect in our opinion to deny seniority to the person, who was placed in the higher post ahead of the Programme Officers.
21. When we analyse the logic of the impugned judgment, we find that the learned Single Judge rightly concluded that the person promoted to a higher post must get precedence in determination of seniority, over those who are brought at par with the higher post, on subsequent date. Moreover the length of service in a feeder cadre post can''t be a criterion for determining the seniority in the higher post. Therefore we express our concurrence with the conclusion and the reasoning in the impugned judgment and finding the Writ Appeal to be devoid of merit, the same is hereby dismissed without any order on cost.
