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Gauhati High Court · body

2002 DIGILAW 116 (GAU)

Purakhu Angami v. State of Nagaland and Ors.

2002-03-13

B.LAMARE

body2002
B. LAMARE, J.- Heard Mr. B. N. Sarma, learned counsel for the petitioner, Mrs. Y. Longkumer, learned Govt. Advocate for the respondents 1 and 2 and Mr. A. Zhimomr , learned counsel for the respondent No. 3. 2. The petitioner was originally appointed as Plantation Manager in the Nagaland Plantation Crops Development Corporation ( for short NPCDC). Subsequently, the Government decided to absorb the services the petitioner and others working in the NPCDC to various Departments as per the decision of the Cabinet. The Cabinet passed the following resolutions :- " The Cabinet approved the proposal of the Horticulture Department for absorption of NPCDC Employees, who have not been accommodated in any Govt. Departments. The Cabinet decided that the concerned departments absorbing the staff should create the posts in their respective departments. However, at the time of regularising their services in the various departments, the concerned departments should regularise the services strictly according to existing rules and regulations and also apply the formula of 3:1 for fixation of seniority." 3. Following the above Cabinet decision, a post of Assistant Director was created in the Deprt. of Tourism and the petitioner was appointed as Assistant Director of Tourism, Nagaland with the prior approval of the Nagaland Public Service Commission ( for short NPSC) vide letter dated 13.7.94. In accordance with the said Cabinet decision, the petitioner was given the benefit of fixation of seniority according to 3:1 formula and accordingly, the petitioner was given one year benefit although according to the said formula he was entitled to get 3 (three) years benefit for the purpose of fixation of his seniority. 4. In consonance with the said Cabinet decision, the appointment order was issued vide Notification dated 2.9.94 to the petitioner. The benefit of 3:1 formula was given to the petitioner and also the benefit of his seniority of one year was given to the petitioner vide Notification dated 12.6.98 which is reproduced below :- " Government of Nagaland Department of Tourism Notification Dated Kma, the 12th June1 98 No. IPT (TOUR)-1/10/94: The Governor of Nagaland is pleased to allow 1 (one) year benefit of seniority to Shri p. Angami, Asstt. Director, Tourism on the basis of 3:1 of his past service to be counted in round figure up to 30.4.93. He is entitled to all other allowances as are admissible under Govt. Director, Tourism on the basis of 3:1 of his past service to be counted in round figure up to 30.4.93. He is entitled to all other allowances as are admissible under Govt. rules from time to time in Nagaland with effect from the date of this order. This issues with approval of the P & AR Department vide their U.O. 42 dated 15.5.98. Sd/- (Khekiye Sema) IAS Secretary to the Govt.of Nagaland." 5. In the Tourism Department, Govt. of Nagaland, there are 2 (two) posts of Assistant Director, one post of Deputy Director, one post of Joint Director and one post of Director. The feeder post to the post 'of Deputy Director is the Assistant Director. The petitioner is the holder of one of the post of Assistant Director and the other post was held by the respondent No. 3. The question for promotion to the post of Deputy Director, therefore, arises as to whether the petitioner or the respondent No. 3 is entitled to be promoted. 6. The question for regularisation of the service of the respondent No. 3 as Assistant Director was considered by the DPC which sat on 16.4.97 and the DPC has recommended that the respondent No. 3 Shri K. T. Thomas is fit for regular appointment to the post of Assistant Director with effect from 17.7.93. Despite of the recommendation of the DPC, the Addl. Secretary to the Govt. of Nagaland, Tourism Department issued a notification dated 27th May' 97 (Annexure- VI to the writ petition) showing the date of regularisation of the respondent No. 3 with effect from 17.1.93. This notification was however superseded by a corrigendum dated 2.2.99 correcting the date of promotion of the respondent No. 3 as 17.7.93 instead of 17.1.93. This corrigendum was again cancelled by notification dated 30.8.99 (Annexure-VIII to the writ petition). 7. Therefore, the position as emerged from the above facts is that whether the promotion of the respondent No. 3 is taken as on 17.1.93 and the appointment of the petitioner as on 30.4.93. It is therefore reguired to be examined whether the respondent No.3 is senior to the petitioner in the capacity as Assistant Director in the Tourism Department. 8. I have heard learned counsel for the parties and also perused the records. 9. It is therefore reguired to be examined whether the respondent No.3 is senior to the petitioner in the capacity as Assistant Director in the Tourism Department. 8. I have heard learned counsel for the parties and also perused the records. 9. A bare perusal of the records shows that the respondent No. 3 was allowed to officiate temporarily to the post of Assistant Director by notification dated 17.7.93 and consequent to that notification, he has taken over charge of the same on the same date i.e. 17.7.93. The said notification and the certificate of handing and taking over charge (Annexures- III & IV to the writ petition) are reproduced below :- "Government of Nagaland Department of Tourism Notification Dt. Kohima, the 17th July' 93 No. IPT (TOUR) - 5/24/92:- The Governor of Nagaland is pleased to allow Shri K. T. Thomas, Tourist officer to officiate temporarily to the post of Assistant Director Class I Gazatted in the establishment of the Directorate of Tourism in the scale of pay of Rs. 1175-50-1775-EB-50-1975-55-2305/- P. M. Plus inner line compensatory allowance @ 25% of basic pay and all other allowances as are admissible from time to time in Nagaland with effect from the day he takes over charge. Sd/- ( K. M. Chadha) Commr. & Secretary to the Govt. of Nagaland." "From No. G. F. R. ( See Rule 78 ) Certificate of Transfer of Charge Certified that we have in the forenoon of this day 17th July* 93 respectively made over and received charge of the office of Asstt. Director (Tourism) in pursuance of order No. IPT (Tour) -5 /24/92 dated 17.7.93. Releived officer (For use in the Audit office only) Noted in A/R at page Noted in the leave A/C at page... Signature ... Sd/- Name in Block letters (K. T. THOMAS) Leave salary certificate/ statement issued on .. . Designation- Assistant Director, Tourism, Nagaland, Kohima. Auditor Supdt. A A C/ A A O Proceeding on transfer / leave/retirement. AAO AAO Noted in A/R at page... Noted in leave A/ C at page pay slip issued on ... Relieving officer- Sd/- Name in Block Letters Illegible Designation- Illegible. AAG AAO Auditor Supdt. Station-Kohima Dated 17th July193 Whether transfer of charge precedes the issue of formal orders by the competent authority/ s suitable indication to that effect may be given. Relieved Officer Sd/-1 llegible Reliving Officer No. TOUR/ pers- 69/85/580 Dt. Relieving officer- Sd/- Name in Block Letters Illegible Designation- Illegible. AAG AAO Auditor Supdt. Station-Kohima Dated 17th July193 Whether transfer of charge precedes the issue of formal orders by the competent authority/ s suitable indication to that effect may be given. Relieved Officer Sd/-1 llegible Reliving Officer No. TOUR/ pers- 69/85/580 Dt. Kohima the 17th July1 93." 10. The respondent No. 3 however claimed that as per the said notification dated 27.5.97 he was allowed promotion and his service was regularised with effect from 17.1.93 as Assistant Director and that it was also confirmed by the notification dated 30.8.99 which cancelled the corrigendum dated 2.9.99. 11. From the affidavit in opposition filed by the State respondents, it is stated that for all purposes, the respondent No. 3 being senior most Tourist officer in the Department was allowed to take charge as Assistant Director on 24.11.92 officially as per the charge report. However, the notification for his promotion could be issued only on 17.7.93. Therefore, according to the State respondents, the seniority of the petitioner should be taken from 24.11.92. The State respondents also contended that from the DPC held on 16.4.97 it was found that the regularisation date of respondent No. 3 is 17.1.93 and not 17.7.93. The Government in support of their affidavit have also shown that the handing and taking over charge as Assistant Director of respondent No.3 was on 24.11.92 vide (Annexure - A to the Affidavit in Opposition). To support this contention , the State respondents have also annexed the letter dated 14.12.94 issued by the Director of Tourism to the Secretary, Tourism Deptt. Nagaland , intimating that actually, for all practical purposes, the respondent No. 3 was functioning as Assistant Director since 24.11.92 but his officiating promotion could be issued only on 17.7.93 therefore , the seniority of the respondent No. 3 should be counted from 24.11.92 and not from 17.7.93. From the affidavit filed by the State respondents, it is seen that there is contrary stand taken by the State respondents as regards the seniority of the respondent No. 3. 12. It is an admitted fact that the promotion of the respondent No.3 was issued on 17.7.93 and he has also taken over charge on the same date as per the notification dated 17.7.93 and handing and taking over charge ( Annexures-III & IV to the Writ petition). 12. It is an admitted fact that the promotion of the respondent No.3 was issued on 17.7.93 and he has also taken over charge on the same date as per the notification dated 17.7.93 and handing and taking over charge ( Annexures-III & IV to the Writ petition). The stand taken by the Government vide notification dated 27.5.97 (Annexure- VI to the writ petition) indicating the period of regularisation of the petitioner from 17.1.93 as Assistant Director is therefore contrary to the statement that he was promoted on 24.11.92. To make the matter clear, the office memorandum dated 30.9.77 (Annexure-XI to the writ petition) is reproduced below: - "Government of Nagaland Department of Personnel and Administrative Reforms Personnel Branch Office Memoandum. NO. PAR-2/3/77(PT) Dated Kohima the 30th Sept1 1977 Sub: Promotion to Higher post with retrospective effect. A few cases have come to the notice of the Government where promotion to higher post was given by various departments of the Government with retrospective effect. 2. Under F. R. 17 (1) an officer shall begin to draw the pay and allowances attached to his post with effect from the date when he assumes the duties of that post. Thus unless an officer actually holds charge of the higher post on the crucial date from which promotion is made effective, the officer does not become entitled to the pay of the higher post merely because an order has been issued at a later date giving a retrospective date. In view of this it is irregular to make orders of promotion effective from a retrospective date unless there is a written direction from the competent authority on that date ( retrospective date) requiring an officer to take over full charges of the higher post. 3. The undersigned is therefore directed to impress upon all the Administrative Departments of the Government to ensure that such practice of giving promotion with retrospective effect is discontinued forthwith. 4. The receipt of this office Memorandum may kindly be acknowledged. A SHANMUGAN Joint Secretary to the Govt. of Nagaland." 13. The above office memorandum shows that unless and officer hold charge of the higher post from the date of promotion is made effective, the officer/ petitioner does not become entitled to the pay of higher post. 4. The receipt of this office Memorandum may kindly be acknowledged. A SHANMUGAN Joint Secretary to the Govt. of Nagaland." 13. The above office memorandum shows that unless and officer hold charge of the higher post from the date of promotion is made effective, the officer/ petitioner does not become entitled to the pay of higher post. From the promotion order of the petitioner it does not indicate that the petitioner was promoted with retrospective effect and it is for this reason he has taken over charge on 17.7.93, the date on which the promotion order was issued. There is also no order promoting the respondent No.3 as Assistant Director immediately after the post fell vacant i. e. 20.4.92. 14. In the case of Union of India and others, Appellants v. K. K. Vadera and others, Respondents AIR 1990 SC 442 , the Apex Court has held that after the post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post fall vacant. 15. Similarly, in the case of Ramakant Shripad Sinai Advalpalhar, Appellant v. Union of India and others, Respondents reported in AIR 1991 SC 1145 , the Apex Court has held that asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion. In such a case he does not get the salary of the higher post but gets only that in service parlance is called a "charge allowance." Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. 16. Keeping in mind the above law laid down by the Apex Court, it is therefore a settled law that the seniority of a person shall be counted from the date the promotion order was issued. Even if a person discharged the duties of a higher posts he is not entitled to seniority without an order promoting him to that posts. 17. Even if a person discharged the duties of a higher posts he is not entitled to seniority without an order promoting him to that posts. 17. From the materials available on records it is clear that the seniority of the petitioner is to be counted with effect from 30.4.93 after giving the benefit of one year seniority by applying the formula of 3:1 of his past service and that the seniority of the respondent No. 3 will be counted from the date of his promotion and his taking and handing over charge officially as per Annexures -111 and IV to the writ petition. Therefore, it is undoubtedly clear that the petitioner is senior to the respondent No. 3. 18. In the result , the petitioner is entitled to be promoted to the post of Deputy Director. Consequently, the notification dated 27th May1 97 (Annexure- VI) showing the date of regularisation of the petitioner from 17.1.93 and the letter dated 19.9.2000 (Anncxure-X to the writ petition ) stands set aside and quashed. 19. This writ petition therefore succeeds and it is accordingly allowed. However, considering the facts and circumstances of the case, there shall be no order as to costs.