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1998 DIGILAW 825 (SC)

Allem Longkumer v. Medokerhe Terhuja

1998-07-30

S.RAJENDRA BABU, SUJATA V.MANOHAR

body1998
ORDER : Sujata V. Manohar, J. The appellant after regular selection through the Public Service Commission, was holding the post of Compiler under the District Gazetteer Unit with effect from 25-11-1975. 2. The posts in the District Gazetteer Unit which were originally attached to the Education Department were detached from that Department and were attached to the Department of Art & Culture by the notification of 31-10-1974. 3. The appellant was sent on deputation to the post of District Cultural Officer in the Department of Art & Culture (i.e., the same Department) w.e.f. 1-11-1978. A proposal was thereafter made by the Director of Art & Culture for absorption of the appellant in the post of District Cultural Officer. The proposal set out that prior to his appointment as District Cultural Officer, the appellant had worked as a Compiler on a higher scale than that of an Investigator, the latter being the normal feeder post from which promotions are made to the post of District Cultural Officer. In view of the fact that the Department was in need of a District Cultural Officer for which there were no departmental candidates available for promotion, and in view of the quality of service of the appellant, it was recommended that he should be absorbed and regularised with effect from the date of his appointment as District Cultural Officer. 4. Pursuant to this recommendation by an order of the Government of Nagaland dated 19-10-1982, the appellant was regularised in the post of District Cultural Officer with immediate effect. However, on the appellant's further representations which were supported by recommendations from the Department, a proposal was put before the Cabinet for absorption of the appellant against the post of District Cultural Officer with effect from the date he was appointed, i.e., 1-11-1978. This proposal was accepted by the Cabinet. Pursuant to this decision, a notification dated 13-7-1984 was published in the Gazette, Government of Nagaland, approving the absorption of the appellant as District Cultural Officer, Department of Art & Culture, Nagaland, with effect from 1-11-1978. The notification stated that this superseded the departmental notification of 19-10-1982. 5. Both the respondents were appointed as District Cultural Officers subsequent to 1-11-1978. For the first time, in 1991 they challenged the notification of 13-7-1984 regularising the appellant with effect from 1-11-1978, by filing a writ petition. The notification stated that this superseded the departmental notification of 19-10-1982. 5. Both the respondents were appointed as District Cultural Officers subsequent to 1-11-1978. For the first time, in 1991 they challenged the notification of 13-7-1984 regularising the appellant with effect from 1-11-1978, by filing a writ petition. Apparently, the occasion for the writ petition was the promotion of the appellant to the post of Deputy Director and the publication of the provisional seniority list. Prior thereto, the appellant had also been promoted as Assistant Director. The High Court has upheld this challenge only on the ground that under a notification of 12-8-1975, when a person is on deputation from one department to another, if he is absorbed in the department where he is on deputation, his seniority will count from the date of his absorption. There is an earlier office memorandum of 27-1-1967 relating to absorption from one post, cadre or service to another being governed by a similar provision. Such absorption is subject to Cabinet approval. In the case, however, of the appellant, there was an express Cabinet decision taken, looking to the special circumstances in which the appellant had been appointed as District Cultural Officer on 1-11-1978, absorbing him with effect from 1-11-1978. This decision had been notified and published in the Government Gazette as far back as in July 1984. We do not see why a challenge to the regularisation of the appellant with effect from 1-11-1978 should have been entertained after a lapse of 7 years from the date of the notification. 6. Undoubtedly, the notification of 12-8-1978 on which the High Court relies has dealt with the manner of fixing seniority of employees who are absorbed in another department. Strictly, the notification does not apply as the appellant's absorption is in the same Department in a different cadre. But there appears to be an earlier office memorandum of 27-1-1967 providing that in the case of absorption in any post, cadre or service, seniority will be from the date of absorption. The procedure for Cabinet approval will continue. Nevertheless, if the Cabinet has taken a specific decision, looking to the special circumstances in a given case, to absorb the appellant w.e.f. 1-11-1978, and that decision is backed by appropriate recommendation from the department concerned setting out all the circumstances in which the proposal is made, the decision cannot be called arbitrary or unreasonable. 7. Nevertheless, if the Cabinet has taken a specific decision, looking to the special circumstances in a given case, to absorb the appellant w.e.f. 1-11-1978, and that decision is backed by appropriate recommendation from the department concerned setting out all the circumstances in which the proposal is made, the decision cannot be called arbitrary or unreasonable. 7. The Cabinet decision in the instant case to absorb the appellant with retrospective effect from 1-11-1978 was taken in the light of special circumstances as set out in the departmental recommendation. This was a bonafide decision which cannot be challenged after a lapse of 7 years, looking to all the facts and circumstances. 8. We, therefore, allow the appeals and set aside the impugned order of the High Court. There will, however, be no order as to costs.