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Judgment
Heard Mr. A.R. Malhotra, learned counsel for the petitioners. Also heard Mrs. Linda L. Fambawl, learned Govt. Advocate for the respondent Nos.
1 to 4 and Mr. Zochhuana, learned counsel for the respondent No. 6. No one appears for the respondent Nos. 5 & 7.
The petitioners are aggrieved by the impugned Notification dated 24. 08.2015, by which Rule 10 (1) & (3) of the Mizoram Health Service Rules,
2009, herein after referred to as the MHS Rules, 2009, has been relaxed to enable absorption of the respondent No. 6 to the Mizoram Health Service
and the impugned Notification dated 01.09.2015, by which the respondent No. 6 has been absorbed to Grade â€" I of the Mizoram Health Service
under GDMO Sub-Cadre on permanent basis w.e.f. 11.05.2015.
 3. The petitioners counsel submits that Mizoram Health Service Rules, 2009, does not have any provision for absorption of a person into the service
from outside the service cadre and as such, even if Rule 10 (1) & (3) of the Mizoram Health Service Rules, 2009 has been relaxed, the absorption of
the respondent No. 6 is dehors the Mizoram Health Service Rules, 2009. The petitioners counsel submits that the respondent No. 6 had initially been
brought on deputation to the Government of Mizoram under the Health & Family Welfare Department from the “Employees State Insurance
Corporationâ€, Ministry of Labour & Employment, Government of India, vide Notification dated 10.05.2011, issued by the Under Secretary to the
Government of Mizoram, Health & Family Welfare Department. The respondent No. 6 was accordingly posted at Civil Hospital, Aizawl, in the Pay
Band of Rs. 15,600 â€" 39,100 + Grade Pay Rs. 6,600/- for a period of 3 (three) years.
The deputation of the respondent No. 6 was thereafter extended for a further period of 1 (one) year, vide Notification dated 06.06.2014. The
petitioner’s counsel submits that as per Rule 20 of the MHS Rules, 2009, the deputation of the respondent No. 6 was to have been done with the
concurrence of the Mizoram Public Service Commission (MPSC). However, the same not having been done with the approval of the MPSC, the said
deputation period of the respondent No. 6 was illegal. He also submits that the absorption of the respondent No. 6 to the Mizoram Health Service was
also illegal as the same was dehors the Mizoram Health Service Rules, 2009, as there was no provision for absorption of the service of the respondent
No. 6 under any other statutory rule or guideline. In support of his submissions, the learned counsel for the petitioners relies upon the judgment of the
Apex Court in the case of Kunal Nanda v. Union of India and Another, reported in (2000) 5 SCC 362 and the judgment of this Court in Swapan
Kumar Malik v. Union of India, reported in 2015 (5) GLT 25.
The petitioners counsel further submits that no reasons have been given by the State respondents for relaxation of the Mizoram Health Service
Rules, 2009, to arbitrarily absorb the respondent No. 6. In this respect, he relies upon the judgments of the Apex Court in the case of Bhupendra Nath
Hazarika And Another v. State of Assam And Others, with Bibekanan Das v. State of Assam And Others, reported in (2013) 2 SCC 516, State of
Gujarat And Others v. Arvindkumar T. Tiwari And Another, reported in (2012) 9 SCC 545 and the judgment of this Court in S. Sumnyan & Others v.
Limi Niri & Others, reported in 2010 (2) GLT 116.
Mrs. Linda L. Fambawl, learned Govt. Advocate for the respondent Nos. 1 to 4 submits that there was no infirmity or illegality in the absorption of
the respondent No. 6 to the Health & Family Welfare Department, Govt. of Mizoram, as the same was done as per Rule 20 of the Mizoram Health
Service Rules, 2009. She also submits that as per the Mizoram Health Service Rules, 2009, the only mode of appointment to the Mizoram Health
Service is by way of application of Rule 10 of the Mizoram Health Service Rules, 2009. As Rule 10 (1) & (3) of the Mizoram Health Service Rules,
2009 has been relaxed, there was no illegality in the absorption of the respondent No. 6 to the Mizoram Health Service. She also submits that “No
Objection Certificate†was obtained from the parent department of the respondent No. 6, prior to his deputation and also prior to absorption of the
respondent No. 6 to the Mizoram Health Service under the Mizoram Government. She also submits that the comments and views of the Mizoram
Government Doctors Association was taken, prior to absorbing the respondent No. 6 into the Mizoram Health Service, to which they replied vide letter
dated 20.07.2015, that they did not have any objection to the prayer for absorption of the respondent No. 6. The learned Govt. Advocate also submits
that the relaxation of the Rules, which enabled the respondent No. 6 to be absorbed into the Mizoram Health Service, should be liberally interpreted. In
support of her submissions, the learned Govt. Advocate has relied upon the judgment of the Apex Court in Dr. Sandeep Kumar Sharma v. State of
Punjab & Others, reported in (1997) 10 SCC 298.
Mr. Zochhuana, learned counsel for the respondent No. 6 reiterates the submissions made by the learned Govt. Advocate. He further submits that
Rule 10 (1) & (3) of the Mizoram Health Service Rules, 2009 having been relaxed, Rule 8 of the Mizoram Health Service Rules, 2009, does not
become applicable. He further submits that Rule 8 of the Mizoram Health Service Rules, 2009, is only for recruitment to Grade â€" III post and not
applicable for recruitment to posts higher than Grade â€" III, to which the respondent No. 6 had been absorbed. He submits that as the State
Government has the power to absorb the respondent No. 6 into the Mizoram Health Service, the writ petition being devoid of any merit, should be
dismissed.
I have heard the learned counsels for the parties.
Rule 8 & 10 of the Mizoram Health Service Rules, 2009, states as follows:
“8. Recruitment to the Service:
Recruitment to the service after the commencement of these rules shall be by the following methods:
(a) 100% of the substantive post in the grade III of GDMO, Dental Surgeon and AYUSH Sub-Cadres shall be filled by direct recruitment through the
commission as specified in Schedule III.
(b) Lateral entry for Specialist, Public Health and Dental Specialist Sub Cadres, will be made in Grade II by direct recruitment through the commission
as specified in Schedule III.
(c) Lateral entry for Super Specialist Sub-Cadre will be made in Grade I by direct recruitment through the commission as specified in Schedule III.
Appointment to the service:
1) All appointments to the service, after commencement of these Rules, shall be made and notified in the Gazette by the Government and no such
appointments shall be made except in the manner specified in rule 8.
2) All appointments to the service shall be made in the appropriate grades of the service and not against specified posts.
(3) All appointments to the service in the higher grades of time-scale of Pay shall be made only by promotion in accordance with the appropriate
provisions under these rules except those holder of degrees or diplomas of specialities/super specialities in a particular discipline as specified in rule
9(6) of these rules.
(4) Other things being equal, preference will be given to those persons having Rural Area experience of at least one year.â€
Rule 30 of the Mizoram Health Service Rules, 2009 gives the power of relaxation, which is as follows:
“30. Power of the Governor to Dispense with, amend, repeal or Relax any Rule:
Where the Governor is satisfied that the operation of any of these Rules cause undue hardship in any particular case or that in the exigencies of Public
Service as well as for effective implementation of these Rules it is so necessary, he may dispense with or relax or amend and repeal such particular
rule or rules or any of the schedules to these Rules, to such extent or subject to such conditions as he may consider necessary, in consultation with the
Commission through the Department of Personnel & Administrative Reforms from time to time.
Provided that the case of any person shall not be dealt with in any manner except under article 311 of the Constitution, as may be less favourable to
him than that provided by any of these Rules.
Provided further that any such dispensation or relaxation in any individual shall not be a precedent or a binding policy for the Government in any other
case.â€
A perusal of Rule 30 of the Mizoram Health Service Rules, 2009 shows that the Governor, if satisfied that the operation of any of the Rules
causes undue hardship in particular case or exigencies of service as well as for effective implementation of the Rules, he may relax any particular
Rule in consultation with the Commission through the Department of Personnel & Administrative Reforms from time to time. In this particular case,
though the affidavit of the Government and the Mizoram Public Service Commission states that the Mizoram Public Service Commission was
consulted with regard to the proposal for absorption of the respondent No. 6, nothing has been produced by the State respondents as to why the
respondent No. 6 has been absorbed into the Mizoram Health Service. The respondents have also not shown under what statutory rule, regulation or
order having the force of law, the respondent No. 6, who was on deputation to the Government of Mizoram, has been absorbed into the Government
of Mizoram in the Mizoram Health Service.
The relaxation of rules specifically provides that the rules may be relaxed if it causes any undue hardship in a particular case or in the exigencies
of public service as well as for effective implementation of the rules. Accordingly, the State respondents were duty bound to give proper reasons for
absorption of the respondent No. 6. The State respondents have not produced any documents, giving the reasons as to why the respondent No. 6 was
absorbed into the Mizoram Health Service, except by stating in their affidavit-in-opposition that the Rules were relaxed for absorption of the
respondent No. 6 for effective implementation of the RSBY and MSHC Scheme.
In the case of Bhupendra Nath Hazarika & Anr v. State of Assam & Others, reported in (2013) 2 SCC 516, the Apex Court has held that
“That apart, whenever there has to be relaxation about the operation of any of the rules, regard has to be given to the test of causation of undue
hardship in any particular case. That apart, the authority is required to record satisfaction while dispensing or relaxing the requirements of any rule to
such an extent and subject to such conditions as he may consider necessary for dealing with the case in a just and equitable manner. The language of
the Rule really casts a number of conditions. It provides guidance. It cannot be exercised in an arbitrary manner so as to dispense with the procedure
of selection in entirety in respect of a particular class, for it has to be strictly construed and there has to be apposite foundation for exercise of such
power. It is to be borne in mind that if a particular rule empowers the authority to throw all the rules overboard in all possibility, it may not withstand
close scrutiny of Article 14 of the Constitution.â€
In the case of State of Gujarat & Others v. Arvindkumar T. Tiwari & Another, reported in (2012) 9 SCC 545, the Apex Court has held in para 10
as follows :
“10. In a particular case, where it is so required, relaxation of even educational qualification(s) may be permissible, provided that the rules
empower the authority to relax such eligibility in general, or with regard to an individual case or class of cases of undue hardship. However, the said
power should be exercised for justifiable reasons and it must not be exercised arbitrarily, only to favour an individual. The power to relax the
recruitment rules or any other rule made by the State Government/Authority is conferred upon the Government/Authority to meet any emergent
situation where injustice might have been caused or, is likely to be caused to any person or class of persons or, where the working of the said rules
might have become impossible.â€
A reading of the above judgments of the Apex Court show that whenever there has to be relaxation of the operation of any rule, the authority is
required to record its satisfaction for the same. The power of relaxation should be exercised for justifiable reasons and cannot be exercised arbitrarily
only to favor an individual. Rule 30 of the MHS Rules, 2009 requires that the rules can be relaxed only if it causes undue hardship in any particular
case or in the exigencies of the public service as well as for effective implementation of the rules.
In the present case, there is nothing to show that the RSBY and MSHC Scheme being implemented by the Government will falter or will not be
implemented if the respondent No. 6 is not absorbed into the Mizoram Health Service. The reason for absorption of the respondent No. 6 cannot be
generalized and justifiable reasons have to be given for the same. Special reasons have to be given for invoking the relaxation clause. In the case of
Sandeep Kumar Sharma v. State of Punjab & Others, reported in (1997) 10 SCC 298, the Apex Court has held that “The power of relaxation even
if generally included in the service rules could either be for the purpose of mitigating hardships or to meet special and deserving situations. Such rule
must be construed liberally, according to the learned Judges. Of course arbitrary exercise of such power must be guarded against. But a narrow
construction is likely to deny benefit to the really deserving cases. We too are of the view that the rule of relaxation must get a pragmatic construction
so as to achieve implementation of a good policy of the government.â€
In the above case of Sandeep Kumar Sharma (supra), the issue that arose was with regard to the appellant, who was one of the candidates before
the Punjab Public Service Commission for selection to the cadre of Deputy Superintendent of Police. He was found fit in all respects, except the
height factor, for which he was found deficient by 1.20 cms. However, he was selected as the Government of Punjab relaxed the requirement of
physical fitness for him in special consideration of the meritorious service rendered by his brother. In this respect, the Government had formulated a
policy to show special consideration towards relatives of those who had suffered due to terrorism or had faced terrorism boldly and had contributed
towards overcoming it. The appellant thus moved the Government for relaxation of his height deficiency, which was allowed.
The challenge made to the appellant’s selection was allowed by the High Court on the ground that the policy evolved by the Government for
relaxation of the rules was solely to help the appellant, which amounted to an act of sheer favouritism. The Apex Court however, in Sandeep Kumar
Sharma (supra), held that the appellant could not be blamed for being the only candidate available seeking relaxation of physical standards. The same
benefit could be enured to anyone else situated in the same position as the appellant had been in. The Apex Court also held that policy wise, it was not
possible to think that the appellant would have been the only kith and kin of those who suffered on account of the activities of the terrorist in Punjab or
those who faced terrorism bravely. The Apex Court thus held that if any particular occasion has alerted the Government to the necessity for taking a
policy decision, it was hardly sufficient to attribute malfide or favouritism to the Government. It was in the above context that the Apex Court in
Sandeep Kumar Sharma (supra), has held that relaxation of rules should be construed liberally so as achieve effective implementation of a good policy
of the Government.
In the present case, the State Government does not seem to have made any policy for absorption of persons who are similarly situated as the
petitioner. In fact, the absorption of the respondent No. 6 into the Mizoram Health Service has been made solely for the purpose of the respondent
No. 6. No justifiable or special reason has been given by the respondents for relaxation of the rules only for the petitioner. Though Rule 10 (1) (3) of
the Mizoram Health Service Rules, 2009 have been relaxed, the State respondents have not made any other statutory rule, regulation, scheme or order
having the force of law, by which the respondent No. 6 could have been absorbed into the Mizoram Health Service. In view of above, the reliance of
the State respondents in the case of Sandeep Kumar Sharma (supra) is misplaced, as the same is not applicable to the present case.
The State respondents cannot act in an arbitrary manner in absorbing the respondent No. 6 to the Mizoram Health Service. By relaxing Rule 10
(1) (3) of the Mizoram Health Service Rules, 2009, no other mode of recruitment or appointment to the Mizoram Health Service remains, except by
way of promotion. For absorption of the respondent No. 6, the State respondents were duty bound to make some statutory rule, regulation, scheme or
order having the force of law, by which the respondent No. 6 could have been absorbed into the Mizoram Health Service. However, as the same not
been done, the absorption of the respondent No. 6, vide Notification dated 01.09.2015, is arbitrary and the same is accordingly set aside. Any
consequential order/s are also set aside. In this regard, it would be profitable to state the law laid down by the Apex Court in Union of India &
Another v. Tulsiram Patel & Others, reported in (1985) 3 SCC 398, wherein, it has held that the source of power must exist for its exercise.
In the present case, the State respondents have not been able to show this Court, under what source of power the respondent No. 6 has been
absorbed into the Mizoram Health Service, as there is nothing in the Mizoram Health Service Rules, 2009, by which power has been given to the State
respondents to absorb a person into Grade â€" I of the Mizoram Health Service. The State respondents will have to take steps for repatriation of the
respondent No. 6 to the parent department, i.e., the respondent No. 7, if his term of deputation is over or unless his period of deputation is extended as
per law.
In view of the reasons stated above, the writ petition stands allowed.