Annette Lalrinsangi vs State of Mizoram

Michael Zothankhuma, J.(Oral) - Heard Mr. A.R. Malhotra, learned counsel appearing for the petitioners. Also heard Mr. Aldrin Lallawmzuala, learned Addl, Advocate General, Mizoram appearing for the respondent Nos. 1 to 3. Mr. Nelson Sailo, learned senior counsel assisted by Ms. Vanhmingliani, learned counsel appearing for the respondent No. 4 and the respondent No. 5 Mizoram Bar Association is represented by Mr. L.H. Lianhrima, learned senior counsel, assisted by Ms. H. Lalmalsawmi.

The petitioners'' prayer in the present Writ Petition is to allow them to apply for the vacant post of Junior Administrative Grade and Senior Grade of the Mizoram Legal Service through limited competitive examination to be conducted by the respondent No. 4 by relaxing Rule 8 (1) & (2) of the Mizoram Legal Service Rules, 2014, by invoking Rule 19 of the Mizoram Legal Service Rules, 2014, herein after referred to as 2014 Rules.

The petitioners'' counsel submits that the petitioner No. 1 had been practicing as an advocate since 17.03.2011, petitioner No. 2 since 21.09.2010 and the petitioner No. 3 since 26.08.2008. Thereafter, the petitioners were appointed to the Junior Grade by the Mizoram Legal Service vide Notification dated 24.02.2015 in accordance with the 2014 Rules.

On coming to learn that the respondent Nos. 1 to 3 had approved the filling up of 1 post of Junior Administrative Grade and Senior Grade of the Mizoram Legal Service, the petitioners submitted a representation dated 15.02.2016 to the respondent Nos. 1 to 3 praying for permission to appear in the examination for recruitment to the post of Junior Administrative Grade and Senior Grade of the Mizoram Legal Service by relaxing the 2014 Rules.

The respondent No.2 vide letter dated 19.2.16 after holding that the prayer made by the Petitioners was reasonable had requested the Respondent No.3 to relax Rule 8(1) & (2) of the Mizoram Legal Service Rules, 2014 by invoking Rule 19. The Respondent No.3 vide ID dated 29.2.16 advised the Respondent No. 2 to furnish length of service rendered by the petitioners as practicing a Advocate under the appropriate Bar Council and to furnish a copy of the Bar Licenses and clarify from the appropriate Bar Council whether the petitioners can be treated as practicing Advocate. The Respondent No. 2 vide ID dated 17.3.16 informed the Respondent No.3 that the length of practise as an Advocate is equated with the seniority of the individual Advocate and also clarified that as per letter dated 17.3.16 received from the Bar Council, the Petitioners were not practicing Advocates. The Respondent No 3 vide letter dated 4.4.16 had informed the Respondent No.4 about the proposal made by the Respondent No.2 to allow the Petitioners to apply for one each vacant post of Junior Administrative Grade and Senior Grade and had also informed the Respondent No. 4 about the decision to waive the requirement of being "a practicing advocate" may be made by relaxing Rule 8(1)4 (2) of the Mizoram Legal Service Rules, 2014 invoking Rule 19 and had further requested the Respondent No.4 to offer its comments The Respondent No. 4 in reply by letter dated 12.4.16 had disagreed with the decision of the Respondent No. 3. The Respondent No.3 vide impugned ID dated 29.4.16 had informed the Respondent No. 2 that the proposed relaxation of the Service Rule in favour of the Petitioners was regretted.

The petitioners'' counsel submits that the decision of the respondent No. 4 in not agreeing to the proposal of the respondent Nos. 1 to 3 to waive the requirement under Rule 8(1) & (2) of the 2014 Rules by invoking Rule 19 vide the impugned I.D. dated 29.04.2016 is illegal, arbitrary and in violation of Article 14 & 16 of the Constitution of India.

The petitioners'' counsel submits that the reason given by the respondent No. 4 for not agreeing to the proposal of the respondent Nos. 1 to 3 to relax the requirement of being a practicing advocate as required under Rule 8 (1) & (2) is no reason at all and there being a difficulty in implementing the 2014 Rules in respect of the petitioners eligibility to participate in the selection process, the decision of the respondent No. 4 not to relax the Rule 8 (1) & (2) of the 2014 Rules has to be set aside.

The petitioners'' counsel submits that the respondent Nos. 1 to 3 having decided to relax the provisions of rule 8 (1) & (2) of 2014 Rules, enabling the petitioners to apply for the vacant post, the reason given by the respondent No.4, in disagreeing with the decision of the respondent Nos. 1 to 3 to relax the Rules was arbitrary and was not binding on the respondent Nos. 1 to 3. The petitioners'' counsel submits that the decision of the respondent No. 4 in rejecting the proposal for relaxing the Rules was only directory and not mandatory and accordingly, there was no reason why the petitioners should not be allowed to apply and participate in the selection process for appointment to the vacant post of Junior Administrative Grade and Senior Grade of the Mizoram Legal Service. The petitioners'' counsel also submits that as held by the Apex Court in the case of Union Public Service Commission v. Gyan Prakash Srivastava reported in (2012) 1 SCC 537, the actions and decisions of Public Service Commission is not immune from judicial review even though the commission is a constitutional body. He also submits that as per the decision of the Apex Court in the case of J.C. Yadav & Ors. v. State of Haryana reported in (1990) 2 SCC 189, the Apex Court has held that the power of relaxation having been inserted in the Rules with a view to mitigate undue hardship or to meet a particular situation, strict application of the service rules creates a situation where a particular individual or a set of individuals may suffer undue hardship. The Apex Court thus held that in the above case that the Government has the power to relax the requirement of the Rules. Thus the petitioner''s counsel submits that the impugned letter dated 12.04.2016 issued by the respondent No. 4 and the I.D dated 29.04.2016 issued by the respondent No. 3 should be set aside and quashed. A further direction should be issued to allow the petitioners to apply and take part in the selection process for appointment to the vacant post of JAG and Senior Grade of the Mizoram Legal Service by relaxing Rule 8 (1) & (2) of the 2014 Rules by invoking Rule 19 of the 2014 Rules.

Mr. Aldrin Lallawmzuala, learned Addl. Advocate General, Mizoram appearing for the respondent Nos. 1 to 3 submits that the respondent No. 2 had taken the view of the Bar Council of Assam, Nagaland, Mizoram.... etc as to whether the petitioners were "practicing advocates" and the Bar Council had informed the respondent No. 2 that the petitioners were not practicing advocates. As Rule 8 (1) & (2) of the 2014 Rules required the candidate to be a practicing advocate, the respondent Nos. 1 to 3 had made a proposal for relaxation of Rule 8 (1) & (2) of the 2014 Rules. The Addl. Advocate General further submits that in view of the provisions of Rule 19 of the 2014 Rules, the State respondents were bound to consult the respondent No.4, i.e. Mizoram Public Service Commission, with regard to whether Rule 8 (1) & (2) of the 2014 Rules could be relaxed. The Addl. Advocate General submits that though the advice of the respondent No.4 is not binding upon the Government, the respondent No. 4 had to be consulted for the purpose of relaxation of the Rules. The Addl. Advocate General submits that the respondent No. 4 had disagreed with the proposal of the Government for relaxation of the Rules and the Governor being the sole authority to relax the Rules had accordingly concurred with the decision of the respondent No. 4.

The Addl. Advocate General further subrn its that the question of relaxation of the Rules is the discretion of the Government and the petitioners having no legal right to claim that relaxation has to be made to the Recruitment Rules.

Mr. Nelson Sailo, learned senior counsel appearing for the respondent No. 4 submits that the respondent No. 4 carefully examined the proposal of the respondent Nos. 1 to 3 to waive the requirement of being a practicing advocate as required by Rule 8(1) & (2) of the 2014 Rules. The respondent No. 4 came to the conclusion that relaxation should not be done and was to be applied only in cases of exceptional difficulty in the implementation of the 2014 Rules. The learned senior counsel also submits that a bare perusal of Rule 8 (1) & (2) of the 2014 Rules shows that the same provides for lateral entry into the post of Junior Administrative Grade and Senior Grade of the service from amongst practicing members of the Bar. He also submits that the Rules having been framed by the State respondents, there was no occasion for the State respondents to flout their own Rules as Rule 19 of the 2014 Rules can be applied only for the purpose of removing an exceptional difficulty in the implementation of the Rules, which is not the case in the present case. The counsel for the respondent No. 4 also submits that there being promotional avenues for the petitioners in the 2014 Rules, there was no occasion for the proposal to relax the Rules to enable the petitioners to apply for the vacant posts of Junior Administrative Grade and Senior Grade. In this respect, the counsel for the respondent No. 4 submits that Rule 9 (4) of the 2014 Rules provides for 70% reservation for the Junior Grade Officers of the Mizoram Legal Service, who have completed 5 years of service in the Grade, to be promoted to the Senior Grade of the Mizoram Legal Service. The learned senior counsel also submits that the proposal of the State Government to relax the Rules was not in consonance with the reasons provided for in Rule 19 of the 2014 Rules to relax Rule 8 (1) & (2). The counsel for the respondent No.4 also submits that numerous applications have been received for the selection process for lateral recruitment to the post of Junior Administrative Grade & Senior Grade of the Mizoram Legal Service and as such, there was no difficulty in the implementation of the 2014 Rules.

Mr. L.H. Lianhrima, learned senior counsel appearing for the respondent No. 5 submits that he supports the arguments of the learned Addl. Advocate General and the counsel for the respondent No. 4. He submits that the minimum eligibility/requirement of a candidate under Rule 8 (1) & (2) is to be a practicing advocate or a Judicial Officer who is qualified to be appointed as Chief Judicial Magistrate shall be eligible to compete the examination. The petitioners cannot claim relaxation of the Rules as a right as they were not practicing advocates with effect from the date of their appointment as Junior Grade Officers in the Mizoram Legal Service, i.e. w.e.f 24.02.2015. Mr. L.H. Lianhrima, learned senior counsel also submits that the last (two) lines of the respondent No. 4 letter dated 12.04.2006 states that:

"The commission is of the opinion that the recruitment process may go according to the rules and in case of any difficulties, amen may subsequently be made."

He submits that the above clearly goes to show that there was no difficulty in implementation of the 2014 Rules. The learned senior counsel also submits that as per the Judgment of the Apex Court in the case of Sushma Suri v. Govt, of National Capital Territory of Delhi & Anr. reported in 1999 (1) SCC 330 the Apex Court has held that if a person on being enrolled as an advocate ceases to practise law and takes up an employment, such a person can by no stretch of imagination be termed as an advocate. He also submits the Apex Court in the case of State of West Bengal & Ors v. Debashish Mukherjee & Ors. reported in AIR 2011 SC 3667 has held I that:

"if the rules provide that premature increment could be granted in exceptional circumstances, there should be reference to the existence of exceptional circumstances and application of mind to those exceptional circumstances. When neither the recommendation considered by Chief Justice nor the order of the Chief Justice referred to any exceptional circumstances and did not even refer to the Rule relating to grant of the relief in exceptional circumstances, the question assuming exceptional circumstances does not arise."

He submits that the ratio of the above judgment can be applied to the present case. The proposal of the State Government to initially waive the requirement of being a "practicing advocate" by invoking Rule 19 of the 2014 Rules required that a reference to the existence of an exceptional difficulty for the implementation of the 2014 Rules should be made. However, as the facts of the case clearly show that there was no difficulty in implementation of the Rules and a proposal was made only due to the ineligibility of the petitioners to participate in the selection process. He thus submits that the respondents have rightly taken the decision that Rule 19 of the 2014 Rules could not be invoked.

I have heard the learned counsel for the parties.

For proper appreciation of the case in hand, Rule 8 (1) & (2) and Rule 19 of the 2014 Rules are reproduced below:

"8. Qualifications for lateral entry into Senior Grade and Junior Administrative Grade. Any person to be appointed directly to the service by lateral entry through limited competitive examination must be qualified in the following manner:

(1) In relation to recruitment to the Junior Administrative Grade of the service, a member of the Bar practicing as an Advocate for not less than 5 years or a judicial Officer who is qualified to be appointed as Chief Judicial Magistrate shall be eligible to compete the examination;

(2) In relation to recruitment to the Senior Grade of the service, a member of the Bar practicing as an Advocate not less than 3 years or a Judicial Officer of at least of 3 years'' standing;

Power of relaxation; For the purpose of removing any exceptional difficulty in the implementation of these rules, the Governor may in consultation with the Mizoram Public Service Commission relax any of the provision of these rules to resolve such difficulty."

Rule 8 (1) & (2) of the 2014 Rules clearly stipulates the requirement of a candidate to be a practicing advocate. The petitioners herein, are not practicing advocates as they have been appointed to the Junior Grade in the Mizoram Legal Service w.e.f 24.02.2015. A perusal of Rule 19 of the 2014 rules requires the Governor to consult the respondent No. 4 before relaxation of the Rules. The power of relaxation of the Rules is only for the purpose of removing in exceptional difficulty in the implementation of the 2014 Rules. A bare perusal of the records shows that neither the petitioners or the respondents have shown that there is an exceptional difficulty in implementing the 2014 Rules. As such, there is no ground for invoking Rule 19 of the 2014 rules. The initial proposal of the respondent Nos. 1 to 3 to relax Rule 8 (1) & (2) of the 2014 Rules which is enumerated in the letter dated 04.04.2016 issued by the Under Secretary to the Government of Mizoram, DP & AR (GSW) is reproduced below:

"It is observed that if the 3 (three) Officers are not afforded an opportunity in the instant recruitment through relaxation of the MLS Rules, 2014 candidates who were not found suitable in the latest recruitment for Senior Grade and Junior Administrative Grade will have to be considered, thus, surpassing the Law Officers who were recruited in February, 2015 only. Thus, it has been decided that the requirement of being a "practicing Advocate" mandated by Rules 8(1) and (2) may be waived by invoking Rule 19 of the Mizoram Legal Service Rules, 2014 in favour of the 3 (three) incumbent probationary Law officers under Law & Judicial Department Comments of the Commission may kindly be offered at an early date."

A perusal of the reasons given in the letter dated 04.04.2016 issued by the Under Secretary to the Government of Mizoram, DP & AR (GSW) shows that the requirement for invoking Rule 19 of the 2014 Rules is absent as there is no statement regarding an exceptional difficulty in implementing the 2014 Rules. The only reason given in the said letter is the apprehension that some candidates who had taken part in the earlier recruitment would now somehow be appointed to the post of Junior Administrative Grade/Senior Grade of Mizoram Legal Service, thereby, surpass, rig the petitioners, who would be in a lower grade then the newly appointed persons. This reasoning is only relatable to heart-burn and to my mind, does not fulfil the condition precedent to invoke Rule 19 of the 2014 Rules.

The use of the words "practicing Advocate" in Rule 8 (1) and (2) of the 2014 Rules along with the years of experience required connotes that being a "practicing Advocate" is the minimum criteria of eligibility. The additional norms required as laid down in the Rules is the years of experience. The petitioners not having the minimum eligibility of being a practicing Advocate, they cannot apply for recruitment for the reason that the same would be contrary to the statutory rules and would therefore be void in law, unless of course there is some exceptional difficult y in implementing the Rules.

In the case of State of Gujarat & Ors. v. Arvind kumar T. Tiwari & Anr. reported in (2012) 9 SCC 545, the Apex Court has held that lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to a serious illegality and not be a mere irregularity. Such a person cannot approach the Court for any relief for the reason that he does not have a right which can be enforced through Court.

In the case of J & K Public Service Commission & Ors. v. Dr. Narinder Mohan & Ors. reported in (1994) 2 SCC 630, the Apex Court has held as follows:

Therefore, it was held that rule of relaxation cannot be exercised in matters of recruitment. It would be only to remove undue hardship that the power to relax the conditions of service should be exercised and rules relating to recruitment of the service should not be relaxed. In Syed Khalid Rizvi v. Union of India (CA No. 823 of 1989 etc. dated November 20, 1992) it was reiterated that appointment to a post in accordance with the Rules is a precondition mi the conditions of the rules of recruitment cannot be relaxed. Rule 3 of the Residuary Rules, though empowers the Government to relax the rules, it cannot be availed nor have power to relax conditions of recruitment."

In the present case, it may be reiterated that Rule 19 of the 2014 Rules can be invoked for the purpose of relaxation of the Rules only when there is an exceptional difficulty in the implementation of the Rules. This is not the case in hand. In view of the above, I do not find any illegality or infirmity in the respondents not invoking Rule 19 of the 2011 Rules for relaxing Rule 8(1) and (2) of the 2014 Rules. Assuming that the requirement of being a ''practicing Advocate'' was waived by invoking Rule 19 of the 2014 Rules, then the result would be that the minimum eligibility criteria would have been done away with all together. It may be stated herein that power to relax the eligibility criteria does not include the power to do away with the criteria all together. The learned counsel for the petitioners had submitted that rules could be relaxed and strict application of service rules creates a situation where a particular individual or set of individual may suffer undue hardship and in this respect, he relied upon the judgment of the Apex Court in J.C. Yadav v. State of Haryana (Supra). The fact situation in J.C. Yadav v. State of Haryana (Supra) is different from the fact situation in the present case. In the case of J.C. Yadav v. State of Haryana, the appellants and the respondent were members of the Haryana Service Engineers Class-II in the Public Health Branch. Rule 6 (b) of the Haryana Rules of 1961 prescribed 8 years of completed Class-II service and passing of professional examination of the department as essential qualifications for promotion to Class-I post. In the relevant year, no qualified Officers of Class-II for promotion to Class-I were available though a number of vacancies existed in Class-I post. While the appellants possessed the requisite educational qualification, they did not complete 8 years of service in Class-II. On the other hand, the respondent had completed 8 years service in Class-II but he did not possess the requisite educational qualification. It was in these circumstances that Rules had been relaxed in favour of the appellants so that a member of Class-II service having completed 4 years service was qualified for being considered for promotion to Class-I post. In this case, the petitioners do not have any right to be recruited to Junior Administrative Grade or Senior Grade through lateral entry. They already have an avenue for promotion as per Rule 9 (4) of the 2014 Rules. Thus, the case of J.C. Yadav v. State of Haryana (Supra) is not applicable to the case in hand. In the present case, the only hardship created to the petitioners is that they are ineligible to participate in the selection process.

The Government has the discretion to relax the rules for the right reasons and the petitioners'' prayer for relaxation of the rules does not come within the condition required for invoking Rule 19 of the 2014 Rules.

Rule 8 (1) & (2) of the 2014 rules provides for lateral entry of a practicing advocate or judicial officer. The petitioners already have the right to be promoted and the question of lateral entry cannot be applied to their case. There being no challenge to the Rules, the rules have to be applied in To. The law laid down by the Apex Court that the Public Service Commission is not immune for judicial review is not disputed at all by this Court. However, this Court also finds no infirmity with the Government consulting the respondent No. 4 as the same is in conformity with Rule 19 of the 2014 Rules. The petitioners also do not have an enforceable right that the rules should be relaxed. For all the reasons stated above, I do not find any merit in the writ petition and accordingly, the writ petition is dismissed.