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2002 DIGILAW 58 (GAU)

State of Nagaland v. Nagaland School Education

2002-02-01

A.K.PATNAIK, R.S.MONGIA

body2002
R.S. MONGIA, CJ. — Nagaland School Education Administrative Officers' Association had filed W.P.(C) No. 4000 of 2001 challenging the appointment of respondent No. 2, Shri K.T. Sukhalu, NCS, Director of Food and Civil Supplies, Nagaland, as Director, School Education, Nagaland, vide order dated 31.5.2001. The primary grievance raised was that as per Nagaland (Administrative) Education Service Rules, 1977, Shri K.T. Sukhalu could not be appointed as Director, as he did not have the requisite qualifications etc. as per the rules. The learned Sessions Judge, while dealing with the prayer for interim stay, observed as under in the order dated 6.6.2001 :- "Mr. Misra prays for an interim suspension of the order impugned in the present writ application, namely, order dated 31.5.2001 (Annexure-D) by which the respondent No. 4 on promotion has been transferred and posted as Director of School Education. Mr. Misrahas drawn my attention to the provisions of Nagaland (Administrative) Education Class-I Service Rules, which provides that the post of Director of School Education would be filled up by promotion from the cadre of Joint Director only. Considering that the petitioner has been able to make a prima facie case in view of the averments made in paragraph 7 to the effect that the respondent No. 4 has not joined the post till filing of this petition, so far the post of Director of School Education is concerned, it is considered fit and proper to suspend the operation of the impug-ned order dated 31.5.2001 (Annexure-D) until further orders." 2. The State of Nagaland prayed for Vacation of the interim direction. However, the learned Sessions Judge declined to vacate the stay, vide order dated 1-9.9.2001, which reads as under: "I do not find any merit in the application to vacate the earlier interim order. Accordingly this matter shall stand rejected." 3. It is against the aforesaid interim directions that the present appeal has been filed by the State of Nagaland. 4. The learned Advocate General, appearing for the appellant submitted that the 1977 Rules were amended, vide Notification dated 22.9.1989, whereby, apart from certain other amendments, the entries in Rule 4(1) (i) were substituted in the following terms: "3. The entries against Rule 4(1)(i) shall be substituted by the following: (i) Nagaland (Administrative) Education Service (Class-I) Grade A (a) Director of School Education. (b) Addl. Director of School Education." ........ ....... "5. The entries against Rule 4(1)(i) shall be substituted by the following: (i) Nagaland (Administrative) Education Service (Class-I) Grade A (a) Director of School Education. (b) Addl. Director of School Education." ........ ....... "5. The entries made against the post of Director of Schedule-II to the Nagaland (Administrative) Eduction Service Rules, 1977 shall be substituted by the following: SCHEDULE-11 (see Rule 6) Name of the post Percentage of the post to be filled in - by direct recruitment. Departmental promotion Qualifications for direct recruitment/departmental promotion Eligibility and other conditions for promotion 1.(a) Director of School Education x 100% Graduate of an approved University mentioned on Schedule-IV The post of Director of School Education should be filed up by Govt. by promotion on the recommendation of the committee, Selection will be made from among the confirmed Officers mentioned under Rule 4(1)(i) Grade A(b) provided that the Officers have completed the qualifying service of not less than fifteen years in the Education Department on the first day of January of that year of which at least two years should be in the grade of Addl. Director of School of School Education or its equivalents.” 5. The learned Advocate General submitted that the Joint Director was omitted by the amendment brought about on 22.9.1989 as the feeder post for promotion to the post of Director. On this basis, the learned counsel submitted that the learned Sessions Judge was not right in observing that it is only a Joint Director who can be considered for promotion to the post of Director of School Education. From the reading of the amendment in the Rules (supra), we find that it was not brought to the notice of the learned Single Judge that the 1977 rules underwent amendment in 1989, whereby Joint Director did not remain a feeder post for the purpose of promotion to the rank of Director of School Education. Learned counsel further submitted that under the Nagaland (Administrative) Education Service Rules, 1977 (as amended in 1989), at present and even when the impugned order dated 31.5.2001 was passed, no person was eligible in the cadre for consideration for promotion to the rank of Director of School Education. Learned counsel further submitted that under the Nagaland (Administrative) Education Service Rules, 1977 (as amended in 1989), at present and even when the impugned order dated 31.5.2001 was passed, no person was eligible in the cadre for consideration for promotion to the rank of Director of School Education. Since, according to the learned counsel, there was no person eligible in the cadre for consideration for promotion to the post of Director of School Education, the Government thought of appointing a person de hors of the cadre as a temporary measure. As per the pleadings made, the appointment of Shri K.T. Sukhalu is to last for two years, though no period has been mentioned in the appointment order dated 31.5.2001. 6. Learned counsel for the respondent No. 1 submitted that if no person is eligible in the cadre for consideration for promotion, the temporary arrangement cannot last indefinitely, or for a period of two years. At the most it can last till a person in the department becomes eligible for consideration for promotion in accordance with the Rules. In passing we may observe that as per the Rules, the post of Director of School Education is to be filled only by promotion. Learned counsel for the appellant submitted that the posting of Shri K.T. Sukhalu as Director of School Education would continue till a person in the Department becomes eligible for consideration for promotion to the post of Director in accordance with the Rules. 7. After hearing the learned counsel for the parties, we are of the view that there cannot be any bar with the State Government appointing a person who may not be belonging to the cadre, if no person is eligible for consideration for promotion within the cadre. However, such a temporary arrangement cannot continue indefinitely. As and when a person in the cadre becomes eligible for consideration for promotion, the process must start immediately regarding filling up the post by promotion by considering the eligible person(s). If a person is found suitable for promotion, naturally, the temporary arrangement must come to an end. 8. In view of what has been observed above, we allow this appeal and set aside the interim directions of the learned Single Judge, dated 6.6.2001 as also the order dated 19.9.2001. If a person is found suitable for promotion, naturally, the temporary arrangement must come to an end. 8. In view of what has been observed above, we allow this appeal and set aside the interim directions of the learned Single Judge, dated 6.6.2001 as also the order dated 19.9.2001. However, we make it very clear that as and when any person in the Nagaland (Administrative) Education Service becomes eligible for promotion, the process of filling up the post of Director of School Education, as per the rules, must start immediately and the process also must come to an end within one month of the initiation of the process. If any of the eligible persons is found suitable for promotion, naturally, he would get the promotion and the present arrangement ordered on 31.5.2001 would come to an end. 9. The appeal stands disposed of accordingly. In view of what has been observed above while disposing of the appeal, in fact, the Writ Petition (C) No. 4000 of 2001 itself stands disposed of in terms of the aforesaid directions. A copy of this order be kept in the record of Writ Petition (C) No; 4000 of 2001 as well.