Gauhati High Court
WA/236/2018 on 7 August, 2025
Page No.# 1/14
GAHC010175632018
2025:GAU-AS:10389
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WRIT APPEAL NO.236 OF 2018
Dr. Chhakchhuak Lalthanpara
Son of C. Laldanga,
Resident of Mission Vengthlang, Aizawl, Mizoram.
.....Appellant
-Versus-
1. Dr. Lairuatpuli Hiawnmual,
Wife of Jims Lalsangzuala, Resident of Zarkawt,
Aizawl, Pin - 796001.
2. Dr. Vanzarlianai,
Daughter of Dr. Vanlalsiama,
Resident of Mission Veng, Aizawl, Pin - 796001.
3. Dr. Malsawmtluangi Ralte,
Wife of R. Zoremsiama,
Resident of Durtlang Leitan, Aizawl, Pin - 796001.
4. Dr. Lalhriatzuali Ralte,
Wife of R. Lalthazuala,
Resident of Zonuam, Aizawl, Pin - 796001.
5. The State of Mizoram, represented by the Chief
Secretary to the Government of Mizoram, Aizawl.
6. The Secretary, Dp & Ar, Government of Mizoram,
Aizawl.
7. The Secretary, Health and Family Welfare Department,
Government of Mizoram, Aizawl.
Page No.# 2/14
8. The Principal Director, Health and Family Welfare
Department, Government of Mizoram, Aizawl.
9. The Mizoram Public Service Commission, represented
by its Secretary.
10. The Director General, Employees State Insurance
Corporation, Panchdeep Bhawan, C.i.g. Marg, New Delhi
- 110002.
.....Respondents
-B E F O R E -
HON'BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
For the Appellant(s) : Mr. D. Saikia, Senior Advocate, assisted by Mr. B. Gogoi,
Advocate.
For the Respondent(s) : Mr. K.N. Choudhury, Senior Advocate, assisted by Mr. N.
Gautam, Advocate for respondent Nos.1 to 4.
: Ms. P. Bhattacharya, Additional Advocate General, Mizoram
for respondent Nos.5 to 8.
Date of Hearing : 07.08.2025.
Date of judgment : 07.08.2025.
JUDGMENT & ORDER (ORAL)
(Ashutosh Kumar, CJ)
Heard Mr. D. Saikia, learned Senior Advocate, assisted by Mr. B. Gogoi,
learned Advocate for the appellant; Mr. K.N. Choudhury, learned Senior
Advocate, assisted by Mr. N. Gautam, learned Advocate for the respondent
Nos.1 to 4/writ petitioners and Ms. P. Bhattacharya, learned Additional
Advocate General, Mizoram for the respondent Nos.5 to 8/State.
Page No.# 3/14
2. The appellant has questioned the judgment & order dated 10.07.2018
passed by a learned Single Judge of this Court (Aizawl Bench) in WP(C)
No.29/2016, whereby the absorption of the appellant in the Mizoram Health
Service has been held to be de hors the Mizoram Health Service Rules, 2009
(hereinafter to be referred as the "Rules of 2009") and unsustainable in the
eyes of law.
3. The learned Single Judge has directed the State respondents to take
steps for repatriation of the appellant to his parent Department if his term of
deputation is over or unless his period of deputation is extended as per law.
4. 4(four) Medical Officers (Grade-II) under General Duty Medical Officer
(GDMO) Sub-Cadre of Mizoram Health Service had challenged the Notification
No.A.35018/1/ 2015-HFW dated 01.09.2015, whereby the appellant was
absorbed to Grade-I of Mizoram Health Service under GDMO Sub-Cadre, Health
& Family Welfare Department, Government of Mizoram on permanent basis
with effect from 15.11.2015, in the Scale of Pay Band-3, Rs.15,600 -
Rs.39,100/- + Grade Pay of Rs.7,100/-.
5. The appellant had been working as Insurance Medical Officer (Grade-I)
under the Employees' State Insurance Corporation (hereinafter to be referred
as "ESI Corporation"). He was deputed to the Health & Family Welfare
Department, Government of Mizoram, for a period of 3(three) years and was
posted at Civil Hospital, Aizawl.
6. After the completion of 3(three) years on deputation, on a
representation made by the appellant for his absorption as a regular employee
under the Mizoram Government, his deputation was extended for a further
period of 1(one) year with effect from 11.05.2014 to 10.05.2015.
Page No.# 4/14
7. Before the expiry of the extended period of 1(one) year, another
representation was filed by the appellant, seeking absorption as a regular
employee of the Government.
This representation was forwarded to the Principal Secretary, Health &
Family Welfare Department, Mizoram. While forwarding the request of the
appellant, the Principal Director, Health & Family Welfare Department noted
that the appellant had tendered great efforts to ensure successful
implementation of both Rashtriya Swasthya Bima Yojana (RSBY) and Mizoram
State Health Care Scheme.
8. The Government of Mizoram, after duly examining the request of the
appellant, sought the permission of the ESI Corporation for issuing No
Objection Certificate (NOC) for absorption of the appellant in the Mizoram
Health Service, which permission/NOC was granted by the ESI Corporation.
While making such a request, the good performance of the appellant,
his family problems and the approval of the Hon'ble Minister of the Department
was also considered.
9. Thereafter, as it appears from the records, the Department of
Personnel & Administrative Reforms (General Service Wing), Government of
Mizoram, submitted a proposal to the Secretary, Mizoram Public Service
Commission, Aizawl, seeking its comments on the absorption of the appellant.
The Mizoram Public Service Commission concurred with the proposal of
the Government for relaxation of the Recruitment Rules for absorption of the
appellant in Mizoram Health Service. Thereafter, the Recruitment Rules dated
24.08.2015 [Rule 10(1) and Rule 10(3) of the Rules of 2009] were relaxed for
absorption of the appellant to Grade-I under GDMO Sub-Cadre of Mizoram
Health Service.
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10. It was only thereafter, it has been argued on behalf of the appellant,
that the Health & Family Welfare Department came out with a Notification
dated 01.09.2015, absorbing the appellant to Mizoram Health Service.
The appellant was posted in the Directorate of Health Services,
Mizoram State Health Care Society.
11. The 4(four) private respondents/writ petitioners, referred to above,
challenged such absorption of the appellant on the ground that the Rules were
relaxed arbitrarily only to favour the appellant, without there being any
provision in the Rules of 2009 for absorption of an employee working under
deputation and that such absorption had adversely affected their promotional
avenues, who, at the relevant time, were working as Grade-II Officers under
GDMO Sub-Cadre.
12. The sum and substance of the contention of the private
respondents/writ petitioners before the learned Single Judge was that the
absorption of the appellant, without relaxation of Rule 8 of the Rules of 2009,
is illegal and arbitrary. Rule 30 of the Rules of 2009 was invoked even without
consulting the Mizoram Public Service Commission before absorption of the
appellant. It was only the Health & Family Welfare Department, which had
consulted the Commission.
13. The further contention of the private respondents/ writ petitioners was
that Rule 10(1) and Rule 10(3) of the Rules of 2009 were relaxed without any
justifiable reason, thus, offending Articles 14 and 16 of the Constitution of
India. This, the private respondents/writ petitioners contended, had impinged
on their rights to be considered for promotion to Grade-I under GDMO Sub-
Cadre.
Page No.# 6/14
14. In order to appreciate the contention of the private respondents/writ
petitioners, it would be apposite to cull out Rules 8, 10 and 30 of the Rules of
2009 for the sake of ready reference as also for completeness.
15. Rules 8, 10 and 30 of the Rules of 2009 are being reproduced herein
below:
"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."
"10. 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 appointment 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 again specific 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."
Page No.# 7/14
"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."
16. A bare reading of the afore-noted Rules would demonstrate the
manner in which recruitment to the Service is to be made. All appointments to
the Service in the higher grades or time scale of pay, according to the Rules,
are to be made only by promotion in accordance with the appropriate
provisions under the Rules.
17. With respect to the power of the Governor to relax the Rules, Rule 30
of the Rules of 2009 envisages that if the Governor is satisfied that the
operation of any of the Rules caused any undue hardship in any particular
case; or for the exigencies of public service or for effective implementation of
the 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 the 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.
Page No.# 8/14
18. The State respondents submitted before the learned Single Judge that
the deputation of the appellant and his ultimate absorption in the service was
for successful implementation of Rashtriya Swasthya Bima Yojana (RSBY) and
Mizoram State Health Care Scheme as per the provisions of Rule 20 of the
Rules of 2009.
19. It was reiterated by the State that on the representation of the
appellant for his absorption, the Department of Personnel & Administrative
Reforms, Mizoram advised the Health & Family Welfare Department to obtain
the views of the Mizoram Government Doctors' Association; take no objection
from the ESI Corporation, New Delhi and secure approval from the Hon'ble
Minister, Health & Family Welfare Department, Mizoram.
An advisory was also made to identify a suitable vacant post of the
appropriate grade of the relevant Sub-Cadre under the Mizoram Health Service.
20. The Health & Family Welfare Department, Government of Mizoram,
duly obtained the views of the Mizoram Government Doctors' Association; NOC
from the ESI Corporation, New Delhi, as also the approval of the Departmental
Minister and the vacant post also was identified for absorption of the appellant.
The Mizoram Public Service Commission was also consulted for relaxation of
the Service Rules, which gave its consent and it was only thereafter that the
Governor, in public interest, relaxed Rule 10(1) and Rule 10(3) of the Rules of
2009 for absorption of the appellant to Grade-I GDMO Sub-Cadre.
The family hardships of the appellant, as also his exemplary service
record and his efforts at implementation of important Government Policies were
taken into account for carrying out the process of absorption of the appellant.
21. The State respondents also contended that with the absorption of the
Page No.# 9/14
appellant, the private respondents/ writ petitioners would not in any way be
prejudiced as they would be considered for non-functional promotion within the
respective Sub-Cadre by way of financial up-gradation even without linkage to
the vacancies.
22. During the pendency of the writ petition, it appears that the private
respondents/writ petitioners were granted non-functional promotion/up-
gradation from Grade-II to Grade-I of Mizoram Health Service under GDMO
Sub-Cadre on 05.10.2016.
23. The stand of the Mizoram Public Service Commission is that the
Commission, before giving necessary concurrence for relaxation of Rule 10(1)
and Rule 10(3) of the Rules of 2009 for absorption of the appellant, thoroughly
examined the circumstances which necessitated relaxation of the relevant
Rules.
24. The learned Single Judge, vide the judgment impugned, however,
observed that, from the affidavits of the State and the Commission, there was
no evidence of any undue hardship to the appellant or was there any service
exigency justifying the relaxation of the Rules. It was also observed that even
the deputation of the appellant from ESI Corporation to the Government of
Mizoram was without any Rules in that regard.
25. Relying upon the decisions of the Supreme Court in Bhupendra Nath
Hazarika & Anr. -Vs- State of Assam & Ors., (2013) 2 SCC 516 and
State of Gujarat & Ors. -Vs- Arvindkumar T. Tiwari & Anr., (2012) 9
SCC 545, the learned Single Judge doubted whether the authorities pandered
to the test of causation of undue hardship in case of the appellant. He did not
find any recorded satisfaction of the Governor before relaxing the Service
Page No.# 10/14
Rules.
26. It may be noted here that in the afore-noted decisions of the Supreme
Court, it has been held that the language of the Rule with respect to the
relaxation has may caveats. It only serves as the guidelines. It cannot be
exercised in any arbitrary manner so as to dispense with the procedure of
selection in its entirety in respect of a person. Such relaxation has to be made
only for justifiable reasons and not for favouring any individual. It could be
relaxed for any emergent situation or in a 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.
27. Differentiating the facts of the case in Sandeep Kumar Sharma -Vs-
State of Punjab & Ors., (1997) 10 SCC 298, where in case of an employee,
physical fitness standard was relaxed against a policy to give special
consideration to the relatives of those who had suffered acts of terrorism, the
learned Single Judge found that there was no such policy for relaxation of the
Rules.
28. It may be noted here that in Sandeep Kumar Sharma (supra), the
Apex Court had held that the power of relaxation could either be for the
purpose of mitigating hardship or to meet special and deserving situations,
which provision must be construed liberally, but not arbitrarily. No narrow
construction ought to be given to such enabling provision which may ultimately
lead to denial of benefit to the really deserving persons. The Supreme Court
went on to explain in Sandeep Kumar Sharma (supra) that the rule of
relaxation must get a pragmatic construction so as to achieve implementation
of a good policy of the Government.
Page No.# 11/14
29. The other reasoning given by the learned Single Judge against the
absorption of the appellant was that in the absence of any source of power,
such power of deputation and absorption could not have been exercised by
relaxation of the Rules.
30. Mr. K.N. Choudhury, learned Senior Advocate for the private
respondents/writ petitioners, by referring to the judgments of the Supreme
Court in G. Muniyappa Naidu -Vs- State of Karnataka & Ors., (1976) 4
SCC 543; Suraj Prakash Gupta & Ors. -Vs- State of J&K & Ors., (2000)
7 SCC 561 and Kunal Nanda -Vs- Union of India & Ors., (2000) 5 SCC
362, has submitted that under the cadre and Recruitment Regulations, without
there being any provision, there could be no absorption and that in the facts of
this case, the relaxation of the Rules is bad in the eyes of law.
31. Mr. Choudhury further submitted that in Kunal Nanda (supra), it has
categorically been held that a deputationist cannot assert and succeed in his
claim for permanent absorption in the Department where he worked on
deputation, unless his claim is based upon a statutory Rule, Regulation or
Order having the force of law. A deputationist can always and at any time be
repatriated to his parent Department, at the instance of either borrowing
Department or the parent Department. There is no vested right in such a
person to continue for long on deputation or get absorbed in the borrowing
Department.
32. On the issue of relaxation of Rules in favour of an employee, it was
argued by Mr. Choudhury that the State must behave like a model employer
and should act fairly, giving due regard and respect to the Rules framed by it.
Under no circumstances, such Rules be permitted to be atrophied.
Page No.# 12/14
33. From a conspectus of facts and the arguments advanced on behalf of
the parties, it appears that the deputation of the appellant in the Mizoram
Health Service was without any specific Rule of deputation but the same was
never questioned by anyone. The deputation was with the concurrence of the
Mizoram State in its Health Department and the parent organization where the
appellant worked.
34. It further appears that the appellant remained on deputation for
3(three) years, whereafter he was granted another extension of a year, but
before the expiry of the extended period of deputation, the request made by
the appellant for his absorption was acceded to but only after taking all
clearances from various Departments and obtaining concurrence of the
Mizoram Public Service Commission. It was only thereafter that a decision was
taken by the Governor for relaxation of Rule 10(1) and Rule 10(3) of the Rules
of 2009, by invoking the powers under Rule 30.
35. The wife of the appellant had died during the deputation period of the
appellant and his two children, residing in Mizoram, had to be taken care of by
him. During the period of deputation, the appellant had made tireless efforts to
effectively implement the Government Schemes for Health Care and his
services were needed for taking such Schemes to fruition.
36. The contention of the private respondents/writ petitioners that the
decision of relaxing the Rules was not taken by the Governor, is untenable. The
Governor acts on the aid and advice of the Government in its concerned
Ministry.
37. The records are replete with necessary clearances and the reasons for
relaxation of the Rules.
Page No.# 13/14
38. We do not find that the Rules were relaxed only for unduly favouring
the appellant. The absorption of the appellant in the Mizoram Health Service
has not, in any manner, infringed the promotional avenues of the private
respondents/writ petitioners who have been granted non-functional promotion
within the respective Sub-Cadres.
39. The records clearly reveal that the efficient handling of the Health Care
Projects/Schemes of the Government made it imperative for the State to allow
the appellant to be absorbed in Mizoram Health Service.
40. We have also noted the fact that after the absorption of the appellant,
his seniority has been counted with effect from the date when he was
appointed on regular basis to the Grade of Chief Medical Officer in his parent
Department, i.e. from 19.04.2013, and that he has been placed at the bottom
of the seniority list of Grade-I of the GDMO Sub-Cadre.
41. The major concern of the private respondents/writ petitioners of the
wrong invocation of Rule 30 of the Rules of 2009 remains unsubstantiated.
42. A conscious decision was taken by the Governor on the aid and advice
of the Government for relaxing the Rules for permanent absorption of the
appellant, which power can be located in Rule 30 of the Rules of 2009, about
which reference has been made earlier.
43. We have not found any arbitrariness in the decision of the Governor in
relaxing the Rules for absorption of the appellant in Mizoram Health Service.
44. The argument that there is no provision for absorption in the Rules of
2009 is of no consequence as relaxation of any part of the Rules is permissible
under the circumstances enumerated under Rule 30, which includes relaxation
Page No.# 14/14
of the Rules for absorption as well.
45. True it is that the State, as a model employer, must conduct itself with
high probity and candour, ensuring the Rule of law but we have not found any
noticeable disregard of the Rules so as to justify any interference.
46. For the afore-noted reasons, we do not find ourselves in agreement
with the opinion of the learned Single Judge and, therefore, we set aside the
judgment impugned in the present appeal.
47. The absorption of the appellant in the Mizoram Health Service stands
ratified.
48. The writ appeal is allowed.
JUDGE CHIEF JUSTICE
Comparing Assistant
