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1989 DIGILAW 43 (GAU)

Enibomo Lotha : S. Ezung: P. Chakhesang: R. P. Lotha: Emilovio Lotha: S. Eswang: N. Phyobmo Lotha: Pyoi Lotha v. Nagaland Public Service Commission

1989-03-15

B.P.SARAF, J.M.SRIVASTAVA

body1989
Srivastava J .— These eight petitioners raise the same question of facts and law and are disposed of by this common judgment. 2. The petitioners, Extension Officers in the Industries Department Government of Nagaland challenge the advertisement No. 3/87-88 dated 12th May. 1987 by the Nagaland Public Service Commission, for recruitment to seven posts of Functional Manager/Assistant Director of Industries at Item No. 3 of the said advertisement (Annexure-B) on the ground that the said posts are reserved for recruitment by promotion, i.e. that there could be no direct recruitment. The respondents have refuted the contention and stated that the said posts are not reserved for recruitment by promotion, and the peti­tioners' challenge to action being taken to Gil the posts, is not 3. We have heard Shri N. N. Saikia, learned counsel for t the petitioners, and Shri D.K. Mishra, learned Senior Government Advocate, Nagaland. 4. The main thrust of the submission of Shri Saikia for the petitioners is on the basis of 'a remark' in coloumn No. 5 at page 86 of the Nagaland Services Revision of pay Rules, 1984 against the post at Serial No. 4-Assistant Director. By notification No. FIR/Rop/22/84 dated 3rd May, 1985 Functional Manager was also inserted. The remark reads "there shall be no direct recruitment to this post" and Shri Saikia submits that the said "remark" being part of the 'pay rules' has the force of law because the rules had been framed in exercise of the powers under Article 309 of the Constitution of India. The submission for the respondents is that the aforesaid rules were for 'revision of pay' and that Annexure-VI in which the said 'remarks' relating to the post of Assistant Director, are is only to show the revised scales of pay and nothing more, that accordingly it could not be construed as 'rule* framed under Article 309 of the^ Constitution of India. The further submission is that the 'remark' was only a recommendation of the pay Commission and it could not be said that the said remark could be considered as a rule for reservation of posts for recru­itment only by promotion. 5. The learned counsel on both the sides submit that there are no Recruitment Rules for the posts, and that there are no Government orders for reservation of posts for recruitment only by promotion. 6. 5. The learned counsel on both the sides submit that there are no Recruitment Rules for the posts, and that there are no Government orders for reservation of posts for recruitment only by promotion. 6. The Nagaland Services Revision of Pay Rules, 1984, hereafter the pay rules were framed in exercise of the powers under Article 309 of the Constitution of India and so far as matters relating to revision of pay are concerned are law. The object and purpose of the rules was to give effect to the revision of pay scales of its employees. Annexure VI is referred in rules 5 (a), 11 (a) ll(b) and 16 of the said rules which refer only to the revision of pay in Annexure-VI, which to our mind clearly indicates that Annexure VI forms part of the rules only in so far as it relates to the revision of scale of pay. We are inclined to take the view that the 'remark' on which Shri Saikia, learned counsel for the petitioners has placed reliance, in the absence of any thing more, should not be construed as 'rule' for it has no connection whatsoever with revision of pay scales. It relates to a different service matter, i.e. recruitment, with which the revision of pay rules had ho gexus. We are inclined to think that such a 'remark' should not be considered as part of the rule. 7. Shri Saikia has referred to Dev Raj Sarma vs. The State of Haryana (1981) 2 SLR, 798 where it was held that 'explanation' and 'notes' under the rules have as much validity as the rule itself. Shri Saikia has also relied upon Baladev Raj Chadha vs. Union of India, 1980 (3) SLR I-in which similar view has been expressed. The said authorities have no application on the facts of this case. The explanation or a note under a 'rule' obviously explains or relates to the rule itself and therefore has as much force as the rule itself, but the said principle cannot be applied to a 'remark' without anything more pertaining to recruitment, against a post in an Annexure meant clearly for the purpose of pay scales prescribed in the pay rules. The 'remark' in the context of its 'place' is a 'lone' 'stray' remark, which does not explain or elucidate any main provision. 8. The 'remark' in the context of its 'place' is a 'lone' 'stray' remark, which does not explain or elucidate any main provision. 8. Shri Saikia has further submitted that two other similarly situated Extension Officers have been promoted, and that therefore the posts should be considered as reserved for promotion. From the mere fact that the two persons similarly situated have been promoted, we are unable to infer that all the posts are reserved for recruitment only by promotion, for it is upto the Government to decide as to how the recruitment to the post, i. e. by promotion or by direct recruitment, shall be made. 9. Moreover if the posts are for recruitment by promotion, there is no material at all to show from which feeder post the promotion is to be made to the post of Functional Manager, and what shall be the criteria for eligibility for promotion such as period of service in the lower post from which the promotion could be made,, seniority or merit -cum-seniority and the like. 10. We are, for the aforesaid reasons, unable to accept the submission for the petitioners that the said posts are reserved for recruitment by promotion. The petitioners have not merit, and are dismissed. Parties to bear their own costs.