High Court
Case Details
WA 244/2012 BEFORE HON’BLE MR.JUSTICE T. VAIPHEI HON’BLE MR. JUSTICE P.K. SAIKIA JUDGMENT AND ORDER(CAV) 1. This writ appeal is directed against the judgment and order dated 5-7-20 12 passed by the learned Single Judge of this Court in W.P.(C) No. 63 of 2011 qu ashing the panel list dated 20-6-2011 and directing the respondent authorities t o prepare a fresh panel list of contractual employees who were serving as Assist ant Auditors by placing the private respondent above the appellants and thereaft er to consider their case for regularization in terms of the Regularization Sche me. 2. The facts of the case giving rise to this appeal, shorn of unnec essary details, are that the appellants were appointed to the post of Assistant Auditors during 2007 and 2008 on contractual basis on the recommendation of DPC/ Selection Committee after the posts were duly advertised in the leading local da ilies whereas the private respondents No. 6 to 24 were appointed on contract bas is on various dates between 2001 and 2006 in the Directorate of Accounts and Tre suries, Aizawl for a period of one year without adhering to the recognized recru itment process and when there was complete ban on any appointment. It may be not ed that the request of the respondent No. 5 to the respondent No. 3 for regulari zing the services of these respondents was turned down on 4-7-2008. It would app ear that the Government of Mizoram had issued the notification dated 6-8-2008 dr awing up a scheme known as (cid:28)The Government of Mizoram Regularization of Contract Employees Scheme, 2008 (cid:29) for the purpose of regularizing contract employees to v acant posts. As some defects were found in this Scheme, the Government of Mizora m again drew up an amended scheme known by the name of (cid:28)The Government of Mizora m Regularization of Contract Employees Scheme, 2008 (cid:29) ( (cid:28)the Scheme (cid:29) for short). C lause 3(1) of the Scheme is relevant for our purpose, and the same reads as unde r: (cid:28)3. Application: This scheme shall apply to the Contractual Employees under vari ous Department of the Government of Mizoram whose engagements have been made through the duly authorized Departmental Promotion Committee (DPC) with the prior approval of DP & AR and the Finance Department. Besides these, contractua l appointments whose engagements had been made through the duly authorized Depar tmental Promotion Committee (DPC) with the prior concurrence of the Finance Depa rtment alone before 6th December, 2005 (i.e. before issue of DP & AR’s OM No. A. 11016/1/88-P&AR(ARW)45 dated 6-12-2005) and whose services are still retained by executing a Deed of Contractual Agreement shall also be eligible for regulariza tion under this Scheme. This shall not apply to the contractual employees under CSS. (cid:29) 3. From the Scheme extracted above, it becomes clear that in order to avail of regularization of contractual services under the Scheme, the followi ng conditions shall have to be satisfied, namely, (i) the contractual appointmen ts shall have to be engaged through a duly constituted DPC; (ii) such contractua l engagement must have been made with the prior approval of the Department of Pe rsonnel & Administrative Reforms as well as the Finance Department. Under the sa me Scheme, regularization of contractual appointees is also admissible if their engagements had been made through a duly constituted DPC with the prior approval of the Finance Department and their services are still retained by executing a Deed of Contractual Agreement. There can be no dispute that the Appellants had b een appointed as contractual appointees through DPC and with the prior approval of both the Department of Personnel and Administrative Reforms and Department of Finance. There is also not dispute that none of the private respondents had bee n appointed on contract basis through DPC but with the concurrence only of the D epartment of Finance. This is confirmed by the letter dated 4-12-2008 of the res pondent No. 3 addressed to the respondent No. 5 while rejecting the request for regularizing the services of the private respondents. 4. It may be noted that such request made thereafter also met the s ame fate. Subsequently, a special DPC was convened for the purpose of regularizi ng the services of those contractual appointees who did not fulfil the requireme nts of the Scheme. On the recommendation of the special DPC held on 10-6-2009, t he respondent No. 4 (The Chief Controller of Accounts, Accounts & Treasuries, Go vt. of Mizoram) submitted a proposal to the respondent No. 3 (Secretary, Finance ) for approving the filling up of 41 vacant posts of Assistant Auditors to accom modate the existing contractual employees by indicating therein that sufficient fund was available for that purpose. The respondent No. 2 by his letter dated 26 -8-2009 informed the respondent No. 4 that contract employees engaged without ro uting through DPC should be examined and screened by the duly authorized DPC to assess their suitability for engagement on contract basis as per the extant recr uitment rule so to enable them to come within the purview of the Scheme and that those who did not qualify should not longer be engaged or continued in the post . 5. To cut the long story short, special examinations were held on 2 -9-2010 and 3-9-2010 for regularization of 46 contractual employees who were app ointed without following the established process of selection. The DPC/Selection Committee in its sitting held on 8-10-2010, after scrutinizing the examination results, recommended the respondent Nos. 6 to 24 for appointment as Assistant Au ditor on contract basis. The respondent No. 3 by his letter dated 22-11-2010 add ressed to respondent 4 conveyed the approval of the Government to these recommen dations. On the recommendation of the said Selection Committee, the Government i ssued fresh appointment orders for the respondent No. 6 to 24 for the post of As sistant Auditors on contract basis in the month of December, 2010. This was foll owed by the problem of fixing the inter-se seniority between the appellants and the private respondents. Finally, the Under Secretary to Government of Mizoram i n the Finance Department issued the letter dated 2-5-2011 informing the responde nt No. 4 that the seniority of contract employees who were appointed without rou ting through a formal DPC should be counted with effect from the date of the min utes of the Selection Committee recommending such appointment and requested him to fix the inter-se seniority of contractual employees accordingly.
Legal Reasoning
6. In pursuance of the aforesaid instruction, the respondent No. 4 prepared the inter-se seniority list of the contract employees under the Directo rate of Accounts and Treasuries including the appellants and the private respond ents vide the letter dated 12-5-2011, which was then circulated on 20-6-2011. In this inter-se seniority list, the appellants were at serial No. 1 to 4 and 6 to 16 whereas the private respondents were placed below the appellants at serial N o. 17 to 35. Aggrieved by this, the private respondents filed the writ petition which resulted in the impugned judgment dated 5-7-2012. The learned Single Judge
Decision
allowed the writ petition and quashed the inter-se seniority list by holding th at the private respondents, having been appointed earlier in point of time, are senior to the appellants. The correctness of the view taken by the learned Singl e Judge is called into question in this appeal. 7. Unfolding his submissions, Mr. KN Choudhury, the learned senior counsel for the appellants, submits that the learned Single Judge has overlooked the glaring fact that the appointments of the private respondents were made whe n there was a complete ban on appointment imposed by the State-respondents and h as in the process committed illegality in counting the past services rendered by them during their illegal appointments. It is further contended by the learned senior counsel that the appointments of the private respondents, unlike the appo intments of the appellants, were de hors any established principles of service j urisprudence: their appointments were made by adopting the policy of pick and ch oose without the approval of the Department of Personnel & Administrative Reform s and the Department of Finance; the posts held by them were never advertised no r were they ever recommended by a duly constituted DPC; they were also appointed at a time where ban on appointment was imposed by the Government. On the contra ry, maintains the learned senior counsel, though the appointments of the appella nts were on contract basis, they were appointed after the posts were duly advert ised and, that too, on the recommendation of a duly constituted DPC and, as such , they have every right to be placed above the private respondents in the inter- se seniority list. He, therefore, contends that the learned Single Judge has gro ssly erred in upsetting the inter-se seniority list and in allowing the private respondents to steal a march over the appellants. 8. On the other hand, Mr. Arup Sarma, the learned Additional Advoca te General of Mizoram, supports the impugned judgment and submits that the learn ed Single Judge does not commit any illegality in holding that the past services rendered by the private respondents should be counted for determining their int er-se seniority. He maintains that when the appellants themselves were appointed on contract basis like the private respondents, no artificial distinction can b e made between them for the purpose of determining their inter-se seniority. 9. Mr. GN Sahelwala, the learned senior counsel for the private res pondents, while adopting the submissions of the learned Additional Advocate Gene ral, also contends that as the contractual appointments of the private responden ts are earlier in point of time, much earlier than that of the appellants, the a ppellants cannot be allowed to steal a march over them. He further submits that the subsequent recommendation of the private respondents by the DPC for contract ual appointment preceded by examination was merely a device to enable the State- respondents to remove any deficiency in their initial appointments so as to brin g them within the purview of the Scheme. He also assails the supercession of the earlier Regularization Scheme dated 6-8-2008 under which the private respondent s were eligible for regularization of their services by contending that the sam e was done away with to confer undue benefits upon the appellants. As both the p rivate respondents and the appellants are contractual appointees and are, theref ore, similarly situated, upholding the impugned inter-se seniority will amount t o treating equals as unequals. The learned senior counsel, therefore, submits th at the impugned judgment does not suffer from any infirmity warranting the inter ference of this Court. 10. Undoubtedly, the appellants were appointed as Assistant Auditors in acco rdance with the procedure laid down by (cid:28)The Mizoram Subordinate Finance & Accoun ts Service (Group ’B’ Non-Gazetted post) Recruitment Rules, 2006 (cid:29) i.e. after the vacant posts had been duly advertised in local dailies, after their selection b y the Selection Committee and after duly obtaining the approval of the Departmen t of Personnel and Administrative Reforms and the Finance Department. It may, ho wever, be noted that the appointments of the appellant had been made only on con tract basis even though their recruitment had been made in accordance with the n ormal recruitment process consistent with Articles 14 and 16 of the Constitution . These contractual appointments had to be resorted to as the Government of Mizo ram, according to the State-respondents, was (cid:28)facing serious financial hardship (cid:29) and they (cid:28)could not entertain any proposal for filling up vacant on regular bas is by direct recruitment (cid:29).? See para 6 of their affidavit. Be that as it may, th e irrefutable fact remains that the appellants had been given contractual appoin tments in the post of Assistant Auditor after following due process of appointme nt, and not arbitrarily or by adopting a policy of pick and choose. 11. As already noticed, the appellants have also fulfilled the criteria for regularization of their services provided for in the Scheme. Once the appellants have been found to be appointed to the post of Assistant Auditor in accordance with the recruitment rules, they will be entitled to count their past contractua l services after regularization of their services. In any view of the matter, ex cept for regular appointees, if there are any, the seniority of the appellants m ust be counted from the dates of their respective entry into contractual service through DPC. In other words, the past services rendered by them on contract app ointment through DPC cannot be wiped out altogether. Coming now to the case of t he private respondents, what is the character of their appointments as Assistant Auditor? The case of the private respondents is that they had been initially ap pointed as Assistant Auditors on Muster Roll basis and were subsequently appoint ed as Assistant Auditors on contract basis on various dates between 2001 and 200 6 with the concurrence of the Finance Department and the Department of Personnel & Administrative Reforms in accordance with the Orders/Notifications/Office Mem oranda issued by the State respondents from time to time. 12. The State-respondents through the Department of Personnel & Administrati ve Reforms in their affidavit have denied that they were appointed in accordance with Orders/Notifications/Office Memoranda. On the contrary, they asserted that the appointments of the private respondents were made without advertising the v acant posts, without routing through the duly authorized DPC and against the ext ant recruitment rules. Since the private respondents were appointed without adve rtising the posts and without convening formal DPC and without the concurrence o f the Finance Department and Department of Personnel and Administrative Reforms, they could not fulfil the criteria laid down by the Scheme for regularizing the ir services like the appellants. This position is made clear by the letter dated 10-10-2006 of the respondent No. 5 (Director of Accounts & Treasuries) to the U nder Secretary to the Government of Mizoram, Finance Department (E) (See Annexur e-19 to the writ petition), which may be reproduced below: (cid:28)GOVERNMENT OF MIZORAM DIRECTORATE OF ACCOUNTS & TREASURIES MIZORAM, AIZAWL. No. A.13015/2/2007-DAT(EST)336 Dated Aizawl, the 10th Oct 2006 To Sir, The Under Secretary to the Govt. of Mizoram, Finance Department ‹ Sub: Ref: Proposal for regularization of contract A.A./A.T.A. Tour letter No. A.13016/1/2002-F-EST/Pt. dt. 18-9-08. With reference to above, I have the honour to furnish herewith the follo wing information regarding proposal for regularization of contract employees und er the Government of Mizoram Regularization of Contract Employees Scheme, 2008 f or further action. 1. Those contract employees have been engaged without recruiting through DP C, but the engagement had been made with the prior concurrence of Finance Depart ment and Department of Personnel and Administrative Reforms. Yes. However, permission for engagement has been obtained only from Fina 2. nce Department before DP&AR (ARW) issue Office memorandum for the Recruitment/en gagement of officer and staff on regular/work charge/officiating/contract basis and engagement of casual staff vide their No. A.11016/1/88-P&AR(ARW)/45 dt. 6.12 .2005. Performance Reports of contract employees i.e. 14 Assistant Auditors (Co ntract) and 13 Assistant Treasury Accountants (Contract) for the last five years is enclosed herewith. Further, additional list of 6 (six) Assistant auditors (Contract) is als o enclosed herewith along with their Performance Reports for favour of your kind consideration as they had almost completed required length of 5(five) years ser vice. Enclo: As stated. Yours faithfully, Director Accounts & Treasuries (cid:29) ( Vanlalphena) It may be noted that the proposal of the respondent No. 5 for regularizi 13. ng the services of the private respondents were rejected from time to time by th e Finance Department, the last correspondence in this behalf is found at Annexur e-22. Ultimately, the meeting to consider regularization of contract employees i ncluding the private respondents was held at the chamber of the Chief Secretary, govt. of Mizoram on 10-6-2009 wherein it was recommended that a Special DPC be constituted to look into the legality/propriety of such type of contractual empl oyment for regularization and collect the required information from the concerne d Departments latest by 3rd July, 2009 and place the papers before the special D PC for regularization by the government. The special DPC held in the meeting on 8-10-2010 recommended all the private respondents for appointment as Assistant A uditors and 26 others as Assistant Treasury Accounts on contract basis on merit. Thereafter, the Under Secretary to the Government of Mizoram in the Finance Dep artment by the letter dated 22-11-2010 conveyed the approval of the Government f or the appointments of the said recommended persons. As already noticed, the sam e Under Secretary issued the letter dated 2-5-2011 informing the respondent No. 4 that the seniority of contract employees without routing through formal DPC sh ould be counted with effect from the approval of the minutes of the Selection Co mmittee recommending such person on such basis and, as such, seniority of contra ct employees might be fixed accordingly. The provisional inter-se seniority was accordingly published on 20-6-2011 placing the names of the appellants above the private respondents. 14. Thus, from the facts enumerated above, it becomes crystal clear that the appellants were appointed on contract after the posts held by them were duly ad vertised and on the recommendation of the Selection Committee/DPC and after obta ining the approval of both the DP & AR and Finance Department, and have, therefo re, satisfied the criteria laid down by the Scheme for regularization of their s ervices. Interestingly, they were not given regular employment despite fulfillin g the criteria for regular appointment on the ground that Mizoram was facing fin ancial hardship. Unfortunately, the private respondents do not stand on the same footing. They were appointed as contractual appointees on various dates between 2001 and 2006 without undergoing the selection process conducted by the Selecti on Committee/DPC and when there was admittedly ban on recruitment imposed in Miz oram. In other words, they were appointed arbitrarily and, most likely, picked a nd chosen by the authorities concerned at their whims and caprice in violation o f Articles 14 and 16 of the Constitution. In our opinion, the appellants by virt ue of the character of appointments form a separate class by themselves and cann ot be clubbed together with the private respondents whose appointments fell foul of Articles 14 and 16 of the constitution. They apparently, unlike the appellan ts, declined to apply for the posts through competitive examination, which were advertised in local dailies on two occasions i.e. on 1-3-2007 and on 22-8-2007 v ide Annexures 9 and 10 of the writ petition. In other words, both the appellants and the private respondents are as different as a cheese from a chalk and canno t obviously belong to the same class. Article 14 of the Constitution only prohib its class legislation and such prohibition does not extend to different classes. In this context, we may profitably refer to the leading authority on a c 15. ase of this nature rendered by a three-Judge Bench of the Apex Court in State of WB v. Aghore Nath Dey, (1993) 3 SCC 371. To appreciate the nature of controvers y, we shall refer to the facts of the case therein more elaborately. In that cas e, the writ petitioners were regularly appointed as Sub-Assistant Engineers. Som e of them were appointed as temporary Assistant Engineers on ad-hoc basis, initi ally for six months between 1974 and 19765 in Public Works Department and others between 1972 to 1978 in Irrigation and Waterways Department. There was also a m ention in the appointment order that the candidate concerned (cid:28)will have to rever t & if he is not selected for regular appointment as Assistant engineer through PSC (cid:29). The initial ad-hoc appointment was extended periodically on the existing t erms during the entire period up to 26-2-1980. Several opportunities were given to the petitioners to appear in the PSC examination but they declined to do so. State Government attempted to get the appointments made by it approved from the PSC but the Commission not only refused to do so but also criticised the appoint ments as violative of rules. Subsequently, the State Government amended the recr uitment rules, dispensed with the requirement of appearing in PSC examination an d the petitioners were absorbed as regular Assistant Engineers. Seniority was gi ven to them from 26-2-1980 and accordingly placed below the private respondents. They claimed seniority for previous ad-hoc service also prior to their regular appointments. 16. At this stage, it may be noted that the Apex Court therein had referred to the conclusions of its earlier decision in Direct Recruit Class II Engineerin g Officers’ Association v. State of Maharashtra, (1990) 2 SCC 715 (or (cid:28)Maharasht ra Engineers case (cid:29) or (cid:28)Direct Recruit case (cid:29) for short), which are as follows: (cid:28)(A) Once an incumbent is appointed to a post according to rule, his seni ority has to be counted from the date of his appointment and not according to th e date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the senior ity. (B) If the initial appointment is not made by following the procedure lai d down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of o fficiating service will be counted. (cid:29) 17. The Apex Court in Direct Recruit case found the need to read the Conclus ions (A) and (B) harmoniously and held that conclusion (B) cannot cover cases wh ich are expressly excluded by conclusion (A). This is what it said in paragraphs 21, 22, 23, 24 and 25 of the judgment: (cid:28)22. There can be no doubt that these two conclusions have to be read harmon iously and conclusion (B) cannot cover cases which are expressly excluded by con clusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial a ppointment and not according to the date of confirmation, the incumbent of the p ost has to be initially appointed (cid:28)according to the rules (cid:29). The corollary set ou t in conclusion (A), then is, that ’where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such posts cannot be taken into account for considering the seniority’. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made on ly as a stop-gap arrangement. The case of the writ petitioners squarely falls wi thin this corollary in conclusion (A), which says that the officiation in such p osts cannot be taken into account for counting the seniority. 23. This being the obvious inference from conclusion (A), the question is w hether the present case also falls within conclusion (B) which deals with cases in which period of officiating service will be counted for seniority. We have no doubt that conclusion (B) cannot include, within its ambit, those cases which a re expressly covered by the corollary in conclusion (A), since the two conclusio ns cannot be read in conflict with each other, 24. The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclus ion (A). 25. In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the def iciency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, ’if the initial appointme nt is not made by following the procedure laid down by the ’rules’ and the latte r expression ’till regularisation of his service in accordance with the rules’. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing va cancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements pr escribed by the rules for adjudging suitability of the appointee for the post be ing cured at the time of regularisation, the appointee being eligible and qualif ied in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of appointment, for determining whethe r it falls in this category, has to be made on the basis of the terms of the ini tial appointment itself and the provisions in the rules. In such cases, the defi ciency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the ap pointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not blam e for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed per iod of time is intended to be a regular appointment subject to the remaining pro cedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of th e appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for whi ch he is not blame. This category of cases is different from those covered by th e corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stop gap arrangement and not according to rules. It is, therefore, not corr ect to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A). 18. For better understanding of the correct legal position, we, even at the cost of somewhat lengthy reproduction, are tempted to further reproduce paras 26 and 27 of the judgment as well: (cid:28)26. In view of the above, it is clear that the claim of writ petitioners ( respondents in all these appeals) for treating their entire period of service pr ior to February 26, 1980 are regular service for the purpose of seniority, and f ixation of their seniority accordingly, is untenable. The submission of Shri San ghi that their initial ad hoc appointment must be treated as having been made in accordance with the rules since the selection by an alternative mode, namely, b y a committee of five Chief Engineers was resorted to on account of emergency, c annot be accepted. Rule 11 of the 1959 Rules provides for appointments to be mad e during emergency, and lays down that such appointments during emergency can be made only ’by advertisement and interview, through the Public Service commissio n, West Bengal’. Admittedly, this express requirement in rule 11 was not followe d or fulfilled subsequently, and, therefore, the initial ad hoc appointments can not be treated to have been made according to the applicable rules. These ad hoc appointments were clearly not in accordance with the rules, and were made only as a stopgap arrangement for fixed period, as expressly stated in the appointmen t order itself. (Underlined for emphasis) (cid:28)27. Thus, there is no escape from the conclusion that the present cases fa ll squarely within the ambit of the corollary in conclusion (A) of Maharashtra E ngineers case and, therefore, the period of ad hoc service of writ petitioners r espondents) on the post of Assistant Engineer prior to February 26, 1980,cannot be counted for reckoning their seniority. (cid:29) 19. The net effect of the paragraphs extracted in the foregoing is that wher e the all ad hoc appointments made dehors the rules do not confer any right to s eniority. They acquire their rights only from the date of their regular employme nt according to rules. If, however, the initial appointments are according to ru les, though on ad hoc or contractual basis, then the seniority would be counted from the dates of initial appointment. The appellants were indisputably appointe d in accordance with the recognised method of recruitment consistent with Articl es 14 asnf 16 of the Constitution although. Due to financial hardships, their ap pointments were made not on regular basis but on contractual basis. The fact tha t their initial appointments were made on contract basis does not change the cha racter of their appointments which had been done in accordance with the rules go verning a regular appointment. We may add, they have also fulfilled the criteria laid down by the State-respondents for regularization of their services in term s of the Scheme, 2008, and if and when their services are regularized in accorda nce therewith, they are entitled to count their previous contractual services fo r the purpose of seniority. 20. On the other hand, the case of the private respondents falls within the four corners of corollary to conclusion (A) of Direct Recruits case. In other wo rds, if and when their services are also regularised, their past contractual ser vices cannot be counted for the purpose of seniority and, at any rate, they cann ot steal a march over the appellants. Therefore, selectees like the appellants a nd non-selectees like the private respondents do not, and cannot belong to the s ame class: those who are appointed by following due recruitment process and thos e who were appointed de hors the rules and arbitrarily cannot be treated alike. In our judgment, the State-respondents are correct in placing the appellants abo ve the private respondents in the inter-se seniority list. In the view that we h ave taken, the impugned judgment cannot be sustained in law and is liable to be set aside. 21. For what has been stated in the foregoing, this appeal is allowed. We, a ccordingly, set aside the judgment dated 5-7-2012 passed by the learned Single J udge in WP(C) No. 63 of 2011. Resultantly, the panel/seniority list dated 20-6-2 011 of contractual employees stands restored. We, however, leave the parties to bear their respective costs.