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Gauhati High Court · body

1992 DIGILAW 161 (GAU)

A. Yanger Ao v. State of Nagaland and Ors.

1992-12-04

H.K.SEMA

body1992
This Civil Rule reveals a disquieting feature as to how the authorities are making appointments/promotions in wanton and deliberate deviation from the prescribed rules. In this writ petition, the petitioner has assailed the promotions and appointments of respondents 5 to 11 as Inspectors of Supply. 2. I have heard Mr.RS Bedi, learned counsel for the petitioner as well as Mr.EY Renthungo, learned Junior Govt Advocate. 3. The petitioner on the basis of selection by the Board in its meeting held on 29.4.1974 and 1.5.1974, was appointed as Sub Inspector of Supply by an order dated 17.8.74. The petitioner joined the post on 16.9.74. Thereafter, the petitioner obtained the degree of graduate, in the year 1976.Admittedly, there was no service rule in existence in the Department of Nagaland Civil Supplies when the petitioner was appointed. However, ia 1977, the Governor of Nagaland in exercise of the power conferred by the provisio to Article 309 of the Constitution was pleased to make the Rules, the Nagaland Civil Supplies Services Rules, 1977 (hereinafter the Rules). The service condition of the petitioner and respondents thereafter are governed by the said Rules. 4. Before I advert further, it will be appropriate to deal with the provisions of Rules in so far relevant for the present purpose. This tiny Rules consists only 19 Rules and III Schedules. Therefore, there should be, I am of the view, no difficulties in carrying out the Rules. 5. Rule 5 of the Rules deals with the method of recruitment and prescribed two methods of recruitment, (a) By direct recruitment by competitive examination/selection, (b) By promotion from lower grade. The quota allotted to each source of recruitment under (a) and (b) above and the minimum educational standard and condition for recruitment was provided in Schedule II to the Rules. At this stage, it would be pertinent to mention that Rule 6 of the Rules deals with the appointment to the service and says that all the appointments to the service after the commencement of the Rules shall be made by the respective appointing authority and no such appointment shall be made except after selection by one of the method of recruitment specified in Rule 5. Therefore no other method of recruitment was prescribed by the Rules except the methods mentioned in (a) and (b) of Rule 5. Therefore no other method of recruitment was prescribed by the Rules except the methods mentioned in (a) and (b) of Rule 5. Further in Schedule II appended to the Rules for appointments/promotions in category IV (Inspector of Supply) which we are concern in this writ petition, the quota for direct recruitment and departmental promotion is 50% each and the qualification for direct recruitment is Graduate in Arts, Commerce or Science. Further, for promotion to the post of Inspector of Supply a candidate must be a substantive incumbent of the immediate lower category of post with 5 years of continuous service in the category. The immediate lower category of post for promotion to the post of Inspector of Supply is the post of Sub Inspector of Supply. In otherwords, Sub Inspector of Supply is the feeder post for promotion to the post of Inspector of Supply. Further, Schedule II of the Rules listed VII categories of post for promotion to the various categories. 6. Rule 7, 8. 9,10 and 11 of the Rules deals with the procedure for direct recruitment by competitive examination. Besides others, it says that examination shall be conducted by the Commission and the Commission shall forward to the appointing authority the names and other details of candidate considered most suitable duly arranged in order of preference- Rule 13 deals with selection for promotion to non-Gazetted post and says that Selection Committee consisting of (1) Director of Supply, Nagaland, (2) Under Secretary to the Government of Nagaland, Supply Department, (3) Under Secretary to the Government of Nagaland, P & AR; (4) Deputy Director of Supply,Nagaland and says that the Departmental Promotions Committee for promotion to the noc-Gazetted posts shall consider for promotion of the incumbent cm the basis of seniority cum merit. The Rule further stipulate that the event a senior member of the service is superseded by his junior the committee shall record its reason. 7. Now let us see how the respondents are promotted/appointed to the post of Inspectors in flagrant violation of the Rules mentioned above. The fifth respondent, as confirmed Accountant of Directorate of Supply was promotted to the post of Inspector of Supply by to order dated 31.3.82. 7. Now let us see how the respondents are promotted/appointed to the post of Inspectors in flagrant violation of the Rules mentioned above. The fifth respondent, as confirmed Accountant of Directorate of Supply was promotted to the post of Inspector of Supply by to order dated 31.3.82. In the first place the fifth respondent was not qualified for promotion to the post of Inspector of Supply as under Schedule II for promotion to the post of Inspector of Supply he must be a substantive incumbent of the immediate category of post with 5 years of continuous service in the category. The immediate lower category of post is Sub Inspector of Supply. This apart no Departmental Promotion Committee was constituted for selection for promotion to the non-Gazetted post as enjoined under Rule 13 of the Rules. Likewise, the 6th, 7th 8th and 9th respondents who were Accountant/UDAs and cashier were promoted to the post of Inspector of Supply of 8th Sept' 87 and 13th June'88 respectively in flagrant violation of the Rules as stated above. 8. The appointment of 10th respondent as Inspector of Supply is somewhat more peculiar than the others. The 10th respondent was appointed as Inspector of Supply on ad-hoc basis for 4 months by an order dated 18th Feb' 86. By another order dated 16th June 89, the l0th respondent was appointed again as Inspector of Supply on contract basis for a. period of one year or till the vacancy is filled up by the regular promotion or regular recruitment whichever is earlier. From the letter dated. 12th Jan 90 4t Annexure 9 it appears that the post held by the 10th respondent was already submitted to the NPSC with a requisition for selecton of candidate. However, the regularisation of the service of the I0th respondent was sought to be obtained at the instant of the Chief Minister. Accordingly by an order, dated 15th March, 1990 the cqntract service of the I0th respondent was regularised with immediate effect. It is to be seen that the service rules does not stipulate either on ad-hoc appointment or contract appointmeat, On the otber hand the vacancies clearly appears to be the quota of direct recruitment and if so, the provision of Rule 7, 8, 9, 10 and 11 which deal .with the recsruitment by a competitive examination ought to have been resorted to 9. Now comes to the 11th respondent, The 11th respondent was appointed on contract basis for one year against the existing vacancy by an order dated 8th June'80. By another order dated 27th Feb' 91 the contract appointment of the 11th respondent as Inspector of Supply was regularised with effect from the date of the order. As said earlier, the Rules prescribed two methods of appointment to the post of Inspector of Supply, one by direct recruitment through competitive examination and the other through Depapttmental Promotion Cotnmittee. No other methed, has been prescribed by the Rules. This apart, the appointments and promotions of respondents 5 to 11 are made in wanton violation of mandate of Rule 6 of the Rules which says that ao appointment shall be made except after selection by one of the methed of recruitment specified in Rule 5. At the risk of repetition, Rule 5 prescribed only two methods of recruitment, by direct recruitment by competitive examination, which means through NPSC and by promotion from lower grade, which means by selection through Departmental Promotion Committee as enjoined under Rule 13 of the Rules. 10. More than once, this Court as well as the Apex Court has observed that Rules are meant to be followed and not to be violated. It is high time that the authorities should discipline themselves to adhere to the Rules, Violations of the Rules in promotion and seniority would not only defeats the ends of justice but also create artificial disorder and frustration among the members of the services. 11. In the result, I hold that the appointment of respondents 5 to 11 as Inspectors of Supply are in contravention of the Rules and are illegal. However, considering the facts that some of them have been holding the post as far back as in 1982, I do not wish to quash their appointments. It is however, made clear that further regularisations and promotions in respect of the aforesaid respondents shall be made only following procedure prescribed under the Rules. I may also hasten--to and that the conditions are attached with regard to the appointment/promotions of 10 and 11 respondents and it would be- open to the competent authorities to deal with them in accordance with the conditions of their appointments. 12. Now comes to .the question as to what relief the petitioner is entitled to. I may also hasten--to and that the conditions are attached with regard to the appointment/promotions of 10 and 11 respondents and it would be- open to the competent authorities to deal with them in accordance with the conditions of their appointments. 12. Now comes to .the question as to what relief the petitioner is entitled to. It is really a sad state of affairs that the petitioner has been made to suffer for no: fault of his. The petitioner is a holder of graduate and was qualified for promotion to the post of Inspector of Supply, either by direct recruitment or .through Departmental Promotion Committee. Even after the introduction of the Rules which was made effective; from 29.4.77, the petitioner has served qualifying length of service-in. the immediate lower grade by 1982, It is unfortunate that the petitioner has also overslept. Mr. Bedi has taken me to .various representations filed by the petitioner in the interregnum. I am not impressed. Remedy under Article 226 of the Constitution is an equitable ,remedy and delay defeats equity. However considering the facts and circumstaoces of-the case that the petitioner Us otherwise qualified and no adverse report against him, I now direct the competent authority to consider the case of the petitioner for promotion to the post of Inspector from the date prior to the respondents are promotted subject to the availability of the post from promotion quota. This direction also subject to the seniority of the petitioner, for example, if in a case of vacancies arises in a particular year from the promotion quota is filled up by an incumbent senior to the petitioner the same shall be adjusted against the petitioner. It is submitted by Mr, Bedi that the petitioner has now been promotted to the post of Inspector of Supply. Even so, his seniority as Inspector of Supply shall be considered in terms of the above direction. To carry out the above direction the respondents are directed to constitute Departmental Promotion Committee in respect of the petitioner within two months from the date of receipt of this order. With this observation and direction this petition is disposed of order as to costs.