Page No.# 1/10 GAHC030005152024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/85/2024 Sh. V. Lalthlamuana and 26 Ors. S/o KV Tlangmawia R/o Zuangtui, Aizawl 2: Sh. Samuel Laldinpuia 3: Sh. K. Lalruatfela 4: Smt. Zothanpuii 5: Smt. H. Lalthanpuii 6: Sh. Valtea Notlia 7: Sh. F. Lalsangzuala 8: Smt. T. Lalrengpuii 9: Smt. V. Salemthari 10: Smt. Zothanpari 11: Smt. Laldawngliai Hmar Page No.# 2/10 12: Smt. F. Lalrinmuani 13: Smt. K. Lalkhawngaihthangi 14: Sh. Kenneth Lalremmawia 15: Sh. R. Zodingliana 16: Sh. Vanlalthanga Hnamte 17: Smt. Ponty Vanlalchhuangi 18: Smt. Zorengpuii 19: Sh. Remlalfela 20: Smt. R. Lalthazuali 21: Sh. Ramnunsanga 22: Sh. C. Zirthangzela 23: Sh. Robert Malsawmkima 24: Smt. Remsangpuii Khawlhring 25: Sh. Thansiama 26: Sh. Lalnghinglova Sailo 27: Sh. Francis Vanlalruat VERSUS Page No.# 3/10 State of Mizoram and 4 Ors. R/b the Chief Secretary to the Govt. of Mizoram, Aizawl 2:The Secretary to the Govt. of Mizoram School Education Dept. 3:The Secretary to the Govt. of Mizoram Dept. of Personnel and Administrative Reforms (DPand AR) 4:The Secretary to the Govt. of Mizoram Finance Dept. 5:The Director of School Education Govt. of Mizora Advocate for the Petitioner : Ms Dinari T Azyu Advocate for the Respondent : Addl. AG/GA, Mizoram B E F O R E HON’BLE MR. JUSTICE NELSON SAILO ORDER 13.05.2025 Heard Mr. Victor L Ralte, learned counsel for the petitioners and Ms. Lalnunhlui, learned Government Advocate for the respondents. Having regard to the projection made by the petitioners and the response made by the respondents, the writ petition is taken up for disposal at the admission stage. [2.] The case of the petitioners is that they were appointed as Middle School Teachers on contract basis between 04.09.2011 to 31.08.2012. They were regularized in service on 01.02.2018 and thereafter, all except the petitioner No. Page No.# 4/10 14 were confirmed in service on 01.02.2022. The petitioner No. 14 was confirmed subsequently on 26.05.2022. According to the petitioners, having continuously served as Middle School Teacher since their initial appointment, they are eligible to be considered for upward movement to the Senior Grade Middle School Teacher in terms of Notification dated 19.07.2013 (Annexure-7). The said notification provides that a regular or confirmed Government School Teacher or Headmaster having 8 years of service shall be eligible for enjoying the scale of pay of Senior Grade. Further, as per paragraph No. 1(b) of the same notification for the purpose of counting 8 years of service, the service rendered on ad-hoc/deficit basis continued with regularization into Government service without a break in service shall be counted as qualifying service. Subsequently, vide Corrigendum dated 02.07.2014, the service rendered under CSS could also be counted for computing the 8 years of service. However, vide Office Order dated 28.09.2022, the petitioners were allowed to count only one third of their past service in terms of the provision of the Mizoram Government Employees (Counting of Past Service) Rules, 2020 (Rules of 2020). The representation submitted by the petitioner No. 1 on his behalf and on behalf of other teachers was rejected vide I.D dated 15.09.2022 (Annexure-12) of the DP&AR and which was communicated to the petitioner No. 1 on 02.08.2023 (Annexure-11). Aggrieved, the petitioners are before this Court. Page No.# 5/10 [3.] Mr. Victor L Ralte, learned counsel for the petitioners submits that similar to Primary School Teacher who were given the benefit of counting their past service for movement to the Senior Grade of their service, the petitioners are eligible to be allowed to count their past services rendered on contract basis as per the Notification dated 19.07.2013. In fact, the said notification does the make any distinction between regularization and confirmation and that either of the two is applicable. The same can be appreciated from the benefit given to the Primary School, Middle School and High School Teachers, which has been annexed by the petitioners at Annexure-14, 15 & 16 respectively. The learned counsel submits that the State respondents in the DP&AR came up with O.M dated 22.01.2021 making certain clarifications on the implementation of the Rules of 2020. Clause-2(i) of the Office Memorandum provides that the application of the Rules of 2020 covers all employees with prior services rendered as specified under Rule 2 of the Rules of 2020, irrespective of their date of regularization, where or before or after the said Rules came into force. Clause-2(iii)(a) further provides that the determination of effective date for benefit under the Rules of 2020 may differ on case to case basis and in case of employees not yet confirmed on the day the Rules came into force, his eligibility will only be effective from the date he is declared as confirmed. The learned counsel submits that by applying the Rules of 2020 and also the subsequent Page No.# 6/10 clarification issued vide O.M dated 22.01.2021, the respondents have deprived the petitioners from counting their past services rendered on contract basis for movement to Senior Grade Middle School Teacher. He submits that since the Notification dated 19.07.2013 which permits counting of past service rendered on contract basis without any deduction having been issued in exercise of the powers conferred by the proviso Article 309 of the Constitution of India, the O.M dated 22.01.2021 which is only an executive instructions cannot override the earlier notification. He, therefore, submits that the impugned action of the respondents should be interfered with and the petitioners should be allowed to count their past service rendered on contract basis, without any deduction. In support of his submission, the learned counsel has relied upon the case of Ajay Kumar Das vs. State of Orissa & Ors., (2011) 11 SCC 136. [4.] Ms. Lalnunhlui, learned Government Advocate, on the other hand, by referring to the affidavit-in-opposition filed by the respondents submits that all the petitioners except the petitioner No. 14 were confirmed on 01.02.2022 and the petitioner No. 14 was confirmed on 26.05.2022 whereas, the Rules of 2020 came into force on the day of its publication in the Mizoram Gazette i.e. 29.05.2020. Thereafter, the Office Memorandum clarifying the implementation of the Rules of 2020 was issued on 22.01.2021. Therefore, the petitioners Page No.# 7/10 having been confirmed post the issuance of the Notification dated 29.05.2020 and the O.M dated 22.01.2021, they are eligible to count only one third of their service rendered on contract basis in terms of the Rules of 2020. She submits that the same has been clearly stipulated in Clause-2(iii)(a) of the O.M dated 22.01.2021. Therefore, the petitioners were rightly given the benefit of counting only one third of their past service vide Office Order dated 28.09.2022. She also submits that unlike the petitioners only those contract appointees who were engaged prior to the commencement of the Government of Mizoram Regularization of Contract Employees Scheme, 2008 are exempted from the application of the Rules of 2020. She thus submits that the writ petition has no merit and the same should be dismissed. [5.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. [6.] The issue to be decided is as to whether the Rules of 2020 and the O.M dated 22.01.2021 can be applied to the petitioners to enable them to count their past services rendered on contract basis for upward movement to the Senior Grade Middle School Teachers. The respondents through the Notification dated 19.07.2013 issued in exercise conferred by the proviso to Article 309 of the Constitution of India had permitted counting of 8 years of service either Page No.# 8/10 rendered on ad-hoc basis or on deficit basis, without any break and which is continued by regularization for getting the benefit of Senior Grade pay. Thereafter, vide Corrigendum dated 02.07.2014 employees who had earlier rendered service under the CSS came to be included to get such benefit. It may be noticed that even the corrigendum was issued in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. The Rules of 2020 par se does not appear to debar, the petitioners from counting their past services for movement to the Senior Grade pay scale since the same is made effective from the date of its publication in the Mizoram Gazette i.e., 29.05.2020. The petitioners had been regularized in their services on 01.02.2018 and since the Notification dated 19.07.2013 permits a regular or confirmed Government School Teacher, benefit of counting of past service rendered on ad-hoc/deficit/CSS, the petitioners admittedly would be governed by the Notification dated 19.07.2013. However, when the O.M dated 22.01.2021 was issued and which provided for the applicability of the Rules of 2020 to everyone irrespective of the date of regularization and also the necessity of being confirmed in service in order to avail for the benefit of counting past service, the situation has changed. The petitioners, therefore, have been brought under the ambit of Rules of 2020 and they have been allowed to count only one third of their past service from the date they have been confirmed in Page No.# 9/10 service. However, the fact remains that the O.M dated 22.01.2021 has been issued in the form of an executive instructions and that the law is with regard is that the Rules framed under Article 309 of the Constitution cannot be amended by way of executive order circular or instructions. The Apex Court in Ajay Kumar Das (supra) under the given facts and circumstances of that case held that it is well settled that the statutory rules framed under Article 309 of the Constitution can be amended only by a rule or notification duly made under Article 309 and not otherwise. Whatever be the efficacy of the executive orders or circulars or instructions, statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace the statutory rules. The Rules made under Article 309 of the Constitution cannot be tinkered by the administrative instructions or circulars. [7.] Upon perusal of the affidavit-in-opposition filed by the State respondents, the specific averments made with regard to the impugned O.M dated 22.01.2021 being an executive instructions and therefore cannot be override the earlier notification issued in exercise of the powers conferred by Article 309 of the Constitution of India has not been rebutted and is silent. This Court has also noticed that the respondents have also extended the benefit of the notification dated 19.07.2013 to Primary School, Middle School and High School Teachers, Page No.# 10/10 who are similarly situated and were only regularized a little ahead of the present petitioners. [8.] Thus, upon due consideration of the materials available on record, this Court finds that the impugned O.M. dated 22.01.2021 is not sustainable and the petitioners are also eligible to be granted the benefit of counting their entire past service to move to the Senior Grade pay scale in terms of the Notification dated 19.07.2013. Having come to such a finding, the Office Order dated 28.09.2022 is interfered with insofar as it grants only one third of the past service to the petitioners for counting to move to the Senior/Selection Grade Middle School Teacher. The respondents shall grant the petitioners the benefit as provided by the notification dated 19.07.2013 by issuing an appropriate order within a period of eight (8) weeks from the date of receipt of a certified copy of this order. The impugned Communication dated 02.08.2023, 15.09.2022 as well as the O.M dated 22.01.2021 are (Annexure-11, 12 & 13) also set aside. [9.] With the above observation and direction, the Writ Petition stands disposed of as allowed. No cost. JUDGE Comparing Assistant