Page No.# 1/10 GAHC030003192023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/69/2023 Smt. C. Thanpari and 13 Ors. D/o C. Sapsiama, R/o Khatlakawn, Aizawl. 2: Sh. Micky Lalremruata 3: Sh. M.C Lalnunsanga 4: Sh. Ramnunthara 5: Sh. Laltanpuia 6: Sh. P.C Lalbiaksiama 7: Smt. C. Lalawmpuii 8: Sh. David Zonuntluanga Zadeng 9: Sh. Vanlalchhanhima 10: Smt. F. Lalhlimpuii 11: Smt. Lalsangzuali 12: Sh. T. Malsawma Page No.# 2/10 13: Sh. Chawngthangvunga 14: Sh. Lalawmpuia Khiangt VERSUS State of Mizoram and 4 Ors. R/b the Chief Secretary to the Govt. of Mizoram, Aizawl, Mizoram. 2:The Secretary to the Govt. of Mizoram Public Works Dept. 3:The Secretary to the Govt. of Mizoram Dept. of Personnel and Administrative Reforms 4:The Secretary to the Govt. of Mizoram Finance Dept. 5:The Engineer-in-Chief Public Works Dept. Govt. of Mizora Advocate for the Petitioner : Ms Dinari T Azyu Advocate for the Respondent : Addl. AG/GA, Mizoram for R1 - 5 Page No.# 3/10 ::: B E F O R E ::: THE HON’BLE MR. JUSTICE NELSON SAILO J U D G M E N T & O R D E R (Oral) 22.04.2025 Heard Mr. Victor L. Ralte, learned counsel for the petitioners and Ms. Lalnunhlui, learned Govt. Advocate for the respondents. By filing this writ petition, the petitioners have challenged the Office Memorandum dated 22.10.2020 by which the Modified Assured Career Progression Scheme for the Mizoram Government Employees, 2020 (MACPS, 2020) has been made to be retrospective effect from 01.09.2018. The petitioners have also challenged the Communication dated 19.05.2022 (Annexure - 11) and the Notification dated 27.08.2018 (Annexure - 12). [2.] It is the case of the petitioners that they were appointed as Junior Engineer (Civil) under the Public Works Department on contract basis vide Order dated 16.06.2009. Thereafter, they were regularized on 17.12.2018 and subsequently confirmed with effect from 17th and 18th December, 2019. The State Government had notified the MACPS, 2010 vide Office Memorandum dated 24.08.2011 by which three (3) financial upgradations could be given to the employees concerned on completion of 10, 20 & 30 years of service. However, Page No.# 4/10 the MACPS, 2010 was discontinued with effect from 01.09.2018 vide Notification dated 27.08.2018 and therefore, the petitioners could not get the benefit of the MACPS, 2010. [3.] Subsequently, the State Government introduced the MACPS, 2020 vide Office Memorandum dated 01.06.2020 by which the petitioners became eligible to be granted financial upgradation in terms of the provisions contained in Annexure – 1 to the MACPS, 2020 more particularly Clause – 15. While the petitioners were expecting to be given the benefit of financial upgradation upon completing 10 years of service from the date of their initial appointment. The same having not been given to them, they submitted their representation before the respondent authorities. However, their representation came to be rejected in terms of the impugned Communication dated 19.05.2022. Being aggrieved, they have filed the instant writ petition. [4.] Mr. Victor L. Ralte, learned counsel for the petitioners submits that the MACPS, 2020 was introduced vide Office Memorandum dated 01.06.2020 and the petitioners in terms of Clause – 15 of Annexure – 1 to the said Office Memorandum are eligible to be given the financial upgradation upon completing 10 years of regular service from the date of their initial appointment. However, the respondent authorities by coming up with the impugned Office Page No.# 5/10 Memorandum dated 22.10.2020 have made the MACPS, 2020 to be effective retrospectively from 01.09.2018 and thereby, depriving the petitioners of the opportunity to be considered for financial upgradation upon completion of 10 years of service. That by giving the MACPS, 2020 retrospective effect from 01.09.2018, the petitioners have been made to be covered by Clause – 16 of Annexure – 1 of the MACPS, 2020 which permits counting of only one third of the service rendered on Adhoc/contract basis followed by regularization without interruption of service for the purpose of granting financial upgradation for those regularized after the effective date of the scheme. Since the effective date of the scheme has been given retrospective effect from 01.09.2018, the petitioners who were otherwise regularized on 17.12.2018 have been greatly prejudiced. The learned counsel submits that the petitioners have the vested right to be considered in terms of the MACPS, 2020 with effect from the date of its publication on 01.06.2020 and their right cannot be taken away by coming up with a subsequent Office Memorandum making the MACPS, 2020 effective retrospectively from 01.09.2018. In support of his submission, the learned counsel relies upon the case of Union of India & Ors. Vs. Tushar Ranjan Mohanty & Ors. 1994 (5) SCC 450. The learned counsel therefore submits that the impugned Office Memorandum dated 22.10.2020, the impugned Communication dated 19.05.2022 and the Notification dated 27.08.2018 should Page No.# 6/10 be set aside. Further, the respondent authorities should be directed to grant the petitioners the benefit of MACPS, 2020 in terms of Clause – 15 of Annexure – 1 of the MACPS, 2020. [5.] Ms. Lalnunhlui, learned Govt. Advocate on the other hand submits that the earlier MACPS, 2010 was discontinued with effect from 01.09.2018 and therefore to bring in the continuity of the MACPS, the MACPS, 2020 was made effective retrospectively from 01.09.2018. The learned Govt. Advocate referring to the counter affidavit submits that in respect of other similarly situated employees referred to by the petitioners, they had been regularized on 26.08.2014 and 15.07.2015 while the MACPS, 2010 was in force. As such, their entire past contractual service were taken into account for granting them financial upgradation. In respect of the present petitioners, since the MACPS, 2020 is deemed to have come into force with effect from 01.09.2018 which is prior to the regularization of the petitioners, only one third of their service rendered on adhoc or contract basis can be counted for the purpose of granting financial upgradation. [6.] The learned Govt. Advocate submits that as already stated earlier, in order to maintain the continuity of the MACPS, the effective date has been fixed as 01.09.2018 which is the date on which the earlier MACPS, 2010 had been Page No.# 7/10 stopped. She submits that the petitioners cannot claim to have any vested right in the grant of MACPS to them and that the scheme is applicable to everyone alike provided they fulfill the criteria stipulated therein. She therefore submits that the writ petition has no merit and the same should be dismissed. [7.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. MACPS, 2010 undisputedly ceased to operate with effect from 01.09.2018 in terms of Notification dated 27.08.2018. The petitioners were initially appointed on contract basis on 16.06.2009 and as on 01.09.2018, they did not have 10 years of service in their appointed post. They came to be regularized only on 17.12.2018 and by which time, the MACPS, 2010 had already ceased to operate. The Notification dated 27.08.2018 was not challenged by the petitioners and in fact, they could not have challenged the same since they were yet to complete 10 years in service counting from their initial appointment in order to be considered for grant of the benefit of the said scheme. The petitioners have now through the instant writ petition challenged the Notification dated 27.08.2018 along with the impugned Office Memorandum dated 22.10.2020 to claim the benefit of MACPS, 2020. [8.] The fact however remains that the MACPS, 2020 ceased to exist on Page No.# 8/10 01.09.2018 and without the said scheme, the petitioners did not have any right to claim financial upgradation. With the introduction of MACPS, 2020 vide Office Memorandum dated 01.06.2020, the same has only provided the basis for the petitioners to claim for the benefit of financial upgradation. However, by making the effective date as 01.09.2018, the petitioners are to be considered for grant of financial upgradatiojn as per Clause – 16 of Annexure – 1 of MACPS, 2020. According to the petitioners, they already have the vested right to be considered for grant of MACPS in terms of the MACPS, 2020 but it may be seen that MACPS, 2020 was notified vide Office Memorandum dated 01.06.2020 and the retrospective effect to the Office Memorandum was given from 01.09.2018 vide Office Memorandum dated 22.10.2020. In other words, the effective date was changed just after about four (4) months from the date of issuance of the MACPS, 2020. Between 01.09.2018 to 01.06.2020, no scheme for financial upgradation existed and therefore, it cannot be said that the petitioners have already acquired a vested right to be extended the financial upgradation after completion of 10 years of service from the date of initial appointment without any deduction. [9.] Reliance has been placed by the learned counsel for the petitioners on Union of India & Ors. Vs. Tushar Ranjan Mohanty & Ors. (supra) on the scope Page No.# 9/10 and concept of vested right. In that case, the Apex Court noticed that Rule 13 of the Indian Statistical Service Rules, 1961 was sought to be amended by the authority concerned with effect from 27.11.1972 vide Notification dated 20.02.1989. Therefore, the Apex Court held that the party concerned already had a vested right under the unammended rules which could not be taken away by retrospective amendment. The Apex Court had also referred to its earlier decision rendered in P.D Aggarwal Vs. State of Uttar Pradesh 1987 (3) SCC 622 wherein, the party concerned was found to have already acquired the vested right to be given the benefit conferred by the Rules of 1936 and that the amended Rules of 1969 and 1971 took away the right already acquired. However, in the instant case, as already stated in the foregoing paragraphs, the rights of the petitioners to be given financial upgradation has only germinated with the introduction of MACPS, 2020 vide Office Memorandum dated 01.06.2020 and which was shortly thereafter made effective from 01.09.2018 through the impugned Office Memorandum dated 22.10.2020. The fact situation is clearly distinguishable. Prior to 01.06.2020, the petitioners had no basis to claim for any financial upgradation. Therefore, this Court is unable to accept the stand that the petitioners have the vested right to be considered for financial upgradation as per the original effective date of the Office Memorandum dated 01.06.2020 and not from 01.09.2018. Page No.# 10/10 [10.] Thus, upon hearing the parties and considering the materials available on record, I do not find merit in the writ petition and accordingly, the same is dismissed. No cost. JUDGE Comparing Assistant