Lanusungkum Jamir, J.@mdashHeard Mr. A.R. Malhotra, learned counsel appearing for the petitioners as well as Mr. Lalsawirema, learned Government Advocate appearing for the State respondents 1 and 2. Mr. M. Zothankhuma, learned senior counsel assisted by Mr. Lalfakawma, learned counsel appears for the respondent No. 3. By this writ petition, the petitioners are aggrieved for non-consideration of their cases for promotion to the post of Junior Grade of Mizoram Civil Service in accordance with the provisions of the Mizoram Civil Service Rules, 2002.
2. Mr. A.R. Malhotra, the learned counsel appearing for the petitioners submits that the petitioner No. 1 is presently serving as Inspector of Food, Civil Supplies & Consumer Affairs, Government of Mizoram since 1997. Petitioner No. 2 is also serving as Inspector of Taxes, Taxation Department, Government of Mizoram since 25.07.2006. Both the petitioners are under the Group ''B'' Gazetted Posts of the Mizoram Civil Service.
At this stage, the learned counsel for the petitioners submits that the State respondents had enacted the Mizoram Civil Service Rules, 2000 (hereinafter the Rules of 2000) regulating conditions and service of persons appointed under the Mizoram Civil Service. Under the Rules of 2000, recruitment to the Junior Grade was by way of direct appointment and selection wherein Rule 8 of the Rules of 2000 provides that 66% of the vacancies shall be filled up by direct recruitment through competitive examination to be conducted by Public Service Commission and 331/3% of the vacancies shall be filled by selection amongst officers who hold gazetted posts in a substantive capacity in connection with the affairs of the State with not less than 5 years of service, in such grade and A.Os. (NG) with not less than 8 years of service shall be eligible for induction into the Service by selection method for this quota (in the manner as may be prescribed by M.P.S.C). The said Rules of 2000 was amended by the Mizoram Civil Service (Amendment) Rules, 2002 (hereinafter the Amended Rules of 2002) which was gazette on 23.1.2002.
Rule 8(b) of the said Amended Rules of 2002 stipulates that 1/3rd of the vacancies shall be filled up by selection from amongst Officers who hold Gazetted posts in a substantive capacity in connection with the affairs of the State with not less than five years of service in such grade and the Administrative Officer (Non-Gazetted) with not less than eight years of service shall be eligible for induction into the service by selection method for this quota in the matter as may be prescribed by the Commission.
3. By Notification dated 19.11.2010, the respondent No. 3 issued a Notification notifying to fill up 5(five) vacant posts of Junior Grade of Mizoram Civil Service by induction from amongst officers who hold Gazetted posts in a substantive capacity in connection with the affairs of the State Government of Mizoram with not less than 5 years of service in such grade. All interested officers were directed to submit their willingness in plain paper indicating their Name, Father''s name, Present post held, Length of service in the grade duly certified by a competent authority through proper channel addressed to Secretary, Mizoram Public Service Commission before 16.01.2011.
Pursuant to the Notification 19.11.2010, the petitioner No. 1 submitted his willingness. In the meantime, the Addl. Secretary to the Government of Mizoram, Department of Personnel and Administrative Reforms had made a communication dated 22nd March, 2011 to the respondent No. 3 stating that the New Mizoram Civil Service Rules are being prepared and therefore, respondent No. 3 was requested to stall the process of selecting 5(five) Departmental Officers for MCS till the Rules are prepared. Thereafter, by another letter dated 10th May, 2011, the respondent No. 3 was informed that the proposal for filling up 5(five) vacancies in Junior Grade of MCS by induction from eligible officers of other Departments/Services stands withdrawn/cancelled since the process of examination of the proposed changes in the provision of induction of eligible officers of other Departments/Services amongst others in the Draft MCS Rules, 2010 is at a critical stage.
Pursuant to the letter dated 10.5.2011, no further steps were taken by the respondent No. 3 with regard to the Notification dated 19.11.2010. It is the submission of Mr. A.R. Malhotra, learned counsel for the petitioners that the process for filling up of the posts under the Mizoram Civil Service was initiated on 19th November, 2010 and the same was stalled/cancelled thereafter by the communications dated 22.3.2011 and 10.5.2011 on the pretext that the MCS Rules of 2010 is at a critical stage. He submits that the action of the State respondents to stall the process of filling up the Junior Grade of MCS on the ground that the New Draft MCS Rules is at a critical stage is not tenable in law inasmuch as the vacancies and process for filling up the posts had started taken in the year 2010 which were covered by the Amended Rules of 2002. As the vacancies arose while the Amended Rules of 2002 was in force, the respondents are duty bound to fill up such posts under the Amended Rules of 2002 and not otherwise. The petitioners being highly aggrieved by the action of the State respondents, have approached this Court for quashing the said two communications and also for a direction to consider their cases for filling up the Junior Grade post of Mizoram Civil Service under the Amended Rules of 2002.
4. Mr. Lalsawirema, the learned Government Advocate appearing for the respondents 1 and 2 submits that the Department of Personnel and Administrative Reforms has issued a Notification dated 24.1.2011 wherein it stipulates that the post based roster only should be maintained by all Departments/Offices under the State Government of Mizoram while calculating vacancies under two or more reservations/quotas. During the vacancies year 2010-2011, there were 21 persons who were promoted to the post of MCS Junior Grade from AO''s (NG) and inductees and only 5(five) posts out of the total strength of 89(eighty-nine) posts of MCS Junior Grade could be filled up by way of induction from amongst officers who held gazetted posts with not less than 5 years of services in such posts. At the same time, he also submits that as the Amended Rules of 2012 has already come into effect from 28th March, 2013 i.e., the date of publication in the Gazette and therefore filling up the post of Junior Grade under the MCS shall be governed by the Amended Rules of 2012 and not otherwise. He, therefore, submits that petitioners cannot claim for filling up the post of Junior Grade of MCS under the Amended Rules of 2002 which has been amended by the new Amended Rules of 2012. Under such circumstances, he submits that the present writ petition is devoid of merit and be dismissed.
5. Mr. M. Zothankhuma, learned senior counsel assisted by Mr. Lalfakawma, learned counsel appearing for the respondent No. 3 submits that the Mizoram Public Service Commission has no comments in the present case inasmuch as the case pertains to whether the old rules or the new rules will be applicable to the petitioners.
6. I have considered the submissions forwarded by the learned counsel appearing for the parties. A perusal of the Notification dated 19.11.2010 would indicate that 5(five) vacant posts of Junior Grade of Mizoram Civil Service arose when the Amended Rules of 2002 was in force and such process for filling up the post by the respondent No. 3 could not be taken up due to the communications dated 22.3.2011 and 10.5.2011. It is also not under dispute that the 5(five) vacant posts of Junior Grade of MCS arose when the Amended Rules of 2002 was in force. Perusal of the communications dated 22.3.2011 and 10.5.2011 clearly indicates that the process of filling up the 5(five) vacant posts of Junior Grade under the Mizoram Civil Service Rules was stalled/cancelled for the simple reason that the New Draft MCS Rules was at a critical stage. The action of the State respondents appear to have been taken only for the reason that the New Draft MCS Rules was under preparation.
7. The only consideration before this Court is whether the Amended Rules of 2002 or the new Amended Rules of 2012 would apply to the petitioners as regard the vacancies that arose in the year 2010. It is trite that any vacancies arising when a particular Rule is in force, such vacancies should be considered under that particular Rule which is in force and not under the new amendment/enactment inasmuch as such New amendments/enactments cannot be applied retrospectively.
8. In the case of
"25. Furthermore, the Regulations have been amended only with effect from 11-8-2004. It would have a prospective effect. It cannot be applied retrospectively. Any vacancy which has arisen prior to coming into force of the said amended Regulations must be filled up in terms of the law as was existing prior thereto. (State of Rajasthan v. R. Dayal 12, SCC para 8.)"
9. The Hon''ble Supreme Court in the case of
10. Again in the case of Hemraj Singh Chauhan & Ors. (supra) relied upon by the learned counsel for the petitioner, the Hon''ble Supreme Court has held has under:
"35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government are to act as model employers, which is consistent with their role in a welfare State.
36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution."
11. In the present case in hand, the Amended Rules of 2002 was in force when the Notification dated 19.11.2010 was issued. It was therefore, incumbent on the respondents to have considered the case of the petitioners under the Amended Rules of 2002 and not otherwise. This is a settled position of law.
In view of the above, this Court does not find any necessity to make any further discussion but to direct the State respondents to consider the case of the petitioners strictly in accordance with the provisions provided by the Amended Rules of 2002. Such consideration of the petitioners for filling up the posts of Junior Grade under the Mizoram Civil Service should be done within a period of 3(three) months under the Amended Rules of 2002 after following the prescribed procedures in this respect.
12. In view of the above, the impugned communications dated 22.3.2011 and 10.5.2011 are set aside and quashed. Writ petition is allowed. No cost.
