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Gauhati High Court · body

1999 DIGILAW 164 (GAU)

S. K. Saikia v. State of Nagaland

1999-05-17

H.K.SEMA

body1999
This petition has been filed by 4 (four) petitioners-in number. Petitioner No. 1 is presently working as Deputy Inspector General of Prisons, petitioner No. 2 is Assistant Inspector General of Prisons, and petitioner No. 3 is the Deputy Superintendent of Jail. Whereas, petitioner No. 4 is the Assistant Jailor. They are aggrieved by the impugned notification dated 1st November, 1996 (Annexure-I) appointing the respondent No. 3 as Additional Director General of Prisons, and the notification dated 10.11.98 (Annexure-II) appointing the respondent No. 4 as Inspector General of Prisons. While issuing a Notice of Motion, this Court on 18.11.98 suspended the notification dated 10.11.98 appointing the 4th respondent h as Inspector General of Prisons on deputation, and pursuant to the interim order dated 18.11.98 it is stated that the respondent No. 4 has not taken over charge as Inspector General of Prisons. 2. Before I proceed further on the contentions raised by the parties, I may at this stage observed that the notification dated 1st November, 96 has been assailed in this writ petition at belated stage. It is stated that pursuant to the aforesaid notification, the respondent No. 3 has been functioning as Additional Director General of Prisons till to date, and at this stage it would be difficult to dislodge the respondent No.3 from the post of Additional Director General of Prisons. Mr. BN Sarma also submits that the petitioners would not press for quashing of the impugned notification dated 1st November, 96 appointing the respondent No. 3 as Additional Director General of Prisons, therefore, so far with regard to the prayer of the petitioners for quashing the impugned notification dated 1st, November, 96 is rejected. 3. With regard to the impugned notification dated 10.11.98 appointing the 4th respondent as Inspector General of Prisons on deputation, the following contentions have been raised by Mr. Sarma : (a) That while considering the promotion to the post of Inspector General of Prisons, the case of the departmental candidate was not at all considered and therefore, the notification dated 10.11.98 suffers from bias and mala fide. (b) That in the constitution of the committee, no departmental head of the petitioners was represented as is normally done in all the Departmental Promotion Committee, and therefore there was nobody to project the case of the departmental candidate. 4. (b) That in the constitution of the committee, no departmental head of the petitioners was represented as is normally done in all the Departmental Promotion Committee, and therefore there was nobody to project the case of the departmental candidate. 4. Counter on behalf of the respondents 1 and 2 has been filed., Apart from denying the allegations made in the writ petition, the respondent also filed the minutes of the committee dated 25.9.97 where the case of the 4th respondent along with others have been recommended. The minutes of the committee has an important bearing in disposal of this writ petition, and it is extracted : “In pursuance of CM's instructions in file, Chief Secretary, DGP and Home Commissioner met on 25th September, 1997 at 1000 hours to finalise the selection of the new IG Prisons, Nagaland. The discussions broadly centered around the following parameters : 1. General deterioration of Jail Administration in the State; 2. Frequent jail-breaks and escapes and the resultant criticisms at large; 3. Need to thoroughly review the entire system of functioning of Jail department; and 4. Appointment of a competent IG Prisons from any service. The Members accordingly considered the general unsettled law and order situation in the State, the risk factor involved in handling highly classified prisoners/ detenus of especially the NSA category and above all the need on the part of the officer concerned to possess the right sense of dynamism and the will to face the challenge of day to day pressure from extraneous quarters and at the same time to have the vision and foresight to revamp the working ethos and culture of the Jail Department as a whole. Further the need, to constantly liaise with especially the counter parts in States of UP Rajasthan, Delhi etc on equal footing and be able to closely oversee the conditions and general welfare of the fairly large number of NSA detenus lodged in jails in these States was also taken into account. Further the need, to constantly liaise with especially the counter parts in States of UP Rajasthan, Delhi etc on equal footing and be able to closely oversee the conditions and general welfare of the fairly large number of NSA detenus lodged in jails in these States was also taken into account. Thereafter the consensual opinion was that Jail Department being a uniformed service, and in a good number of States headed and manned by officers from amongst the IPS cadre, it was felt that posting of an IPS officer, at a juncture when the functioning of the State Jail Administration was undergoing a very critical phase and in dire need of thorough streamlining, would definitely be a necessary imperative in affording better equation when man to man co-ordination would be required to be made while formulating the system for revamping the Jail Administration. Therefore on the basis of the foregoing premise, it was decided to recommend the names of the following eligible IPS officer in order of seniority for selection as IG Prisons on deputation for an initial period of 1 (one) year: (1)NN Walling, DIG (HQRS), PHQ, (2) M. Anochet, DIG (TRG), Chumukedima, (3) C. Kikon, D IG (INT), and (4) K. Kire, DIG (Range), Kohima. Sd- DGP Home Commissioner 5. From the minutes of the committee therefore appears that the committee has been constituted pursuant to the-instruction of the Chief Minister in file. However, the file was not made available before this Court at the time of hearing of this writ petition. Be that as it may, a perusal of the minutes of the committee, it clearly appears that no case of the departmental candidate has been considered before recommending the case of the 4th respondent for appointment to the post of Inspector General of Prisons. Mr. Sarma has submitted that on earlier occasion, the departmental candidate namely, TN Ngullie was promoted to the post of Inspector General of Prisons and the same formula should be followed. I am not on this point. The point which deserves to be considered is that, whether the departmental candidate has been considered for promotion before any other candidate was considered on deputation. 6. I am not on this point. The point which deserves to be considered is that, whether the departmental candidate has been considered for promotion before any other candidate was considered on deputation. 6. It has been emphasized and reemphasized by the Supreme Court that denial of promotion avenue affects the efficiency of the Govt servant, and refusal to give promotion avenue would breed stagnation and frustration thereby affecting the efficiency of the Govt servant. In a service jurisprudence, one works for the future security. When a Govt servant joins the post he also had a legitimate expectation of further promotion and service prospects. Keeping this principle in mind, it is always desirable to have considered the case of eligible departmental candidate before considering anybody from outside on deputation, of course subject to the possessing requisite qualification and falls within the zone of consideration. 7. It is an admitted fact that Jail Department does not have any recruitment rules, but that does not debar the concerned competent authority from deviating the general principle of service jurisprudence in matters of promotion. Once the committee considered the case of the departmental candidate and found unfit for reasons to be recorded, it is well and good, but when the committee did not at all consider the case of the departmental candidate and went ahead to recommend the other candidate on deputation to fill up the post, it amounts to arbitrary exercise /j of power. It is only on this sole question the notification dated 10.11.98 recommending the case of the 4th respondent for appointment to the post of Inspector General of Prisons ie liable to be quashed which I hereby do. 8. The second contention of Mr. BN Sarma is that, in normal service jurisprudence, when the departmental candidate is considered for promotion or otherwise the Head of the department is represented in the committee is also deserves to be considered. It is however, submitted by Mr. CT Jamir that the Jail Department is under the Administrative control of Home Department, and in the committee, Home Commissioner is a member, and therefore, there is no question of adding another member to the committee. It is however, submitted by Mr. CT Jamir that the Jail Department is under the Administrative control of Home Department, and in the committee, Home Commissioner is a member, and therefore, there is no question of adding another member to the committee. While it is true that the Jail Department is functioning under the control of Home Department, day to day administration of the department is carrying on under the administrative control of Additional Director General of Prisons who is immediate boss of the department. Therefore, in my view, besides Home Commissioner being member of the Committee, it is incumbent that Additional Director General of Prisons is necessarily a member of the committee while considering the case of the departmental candidate. 9. Mr. BN Sarma has also forcefully argued that the Director General of Police need not be put as a member of the committee, as according to him putting the Director General of Police as a member of the committee could project the interest of the Police Department. There are already three independent members in the committee, and therefore, Director General of Police influencing the views of other members would be far fetched. At the same time, the committee being the responsible committee consisting of senior members of the service, it is expected to function uninfluenced by any other consideration rather than the merit of each candidate. At the same time the administration of Jail being involved with security related matters there is nothing wrong in making the Director General of Police as a member of the committee while selecting suitable candidate. Even from the other angle, inclusion of Director General of Police as member is not at all bias as this Court has already observed that the departmental candidate must be considered before the case of any other candidate from other department is considered. 10. In the facts and circumstances as stated above, the impugned notification dated 10.11.98 appointing the 4th respondent as Inspector General of Prisons is hereby quashed. Consequently, the recommendation of the committee in its meeting held on 25th September 97 is also quashed. The respondents 1 and 2 are directed to consider the eligible available departmental candidate first for appointment to the post of Inspector General of Prisons. This direction is subject to the availability of suitable candidate possessing requisite qualification for such post in the department. The respondents 1 and 2 are directed to consider the eligible available departmental candidate first for appointment to the post of Inspector General of Prisons. This direction is subject to the availability of suitable candidate possessing requisite qualification for such post in the department. While considering the case of the departmental candidate, Additional Director General of Prisons shall be a member of the committee besides others. It is open to the committee to recommend any other candidate from other department if the committee is of the view that there is no suitable candidate from the department for appointment to the post of Inspector General of Prisons. Such decision must be supported with reasons. With the aforesaid direction, this petition is disposed. No costs. The aforesaid direction is also subject to the availability of vacancy of the Inspector General of Prisons in the Department of Prisons.