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2004 DIGILAW 258 (GAU)

Hugie Zoliang v. State of Nagaland

2004-04-06

B.LAMARE

body2004
JUDGMENT B. Lamare, J. 1. Heard Mr. T. Koza, learned Counsel for the Petitioners, Mrs. Y. Longkumer for the Respondents 1 and 2 as well as Mr. C.T. Jamir for the private Respondents 3 to 6. 2. The Petitioner No. 1 Shri Hugie Zeliang was initially appointed as Computer by order dated 9.3.82. He was subsequently promoted to the post of Investigator vide order dated 5.12.87. Subsequently by notification dated 10.6.94 he was promoted to the post of Evaluation Officer. 3. The Petitioner No. 2 Miss N. Miachie-o was initially appointed as Computer by order dated 4.12.82. She was promoted to the post of Investigator by order dated 3.7.87 with effect from 22.6.87. Subsequently, she was again promoted to the post of Evaluation Officer. 4. The Respondents 3 to 6 were originally appointed as Inspector in the Economics and Statistics and Assistant Teachers in the Education Department. However, they were taken into Directorate of Evaluation as Evaluation Officer after the Directorate of Evaluation was bifurcated from the Planning and Co-ordination Department. The Respondent No. 3 was taken on deputation w.e.f 31.10.86. The Respondent No. 4 was taken on deputation w.e.f 3.11.86. The Respondent No. 5 was taken on deputation on 9.4.87 and the Respondent No. 6 was taken on 2.12.89. After the private Respondents has served for a period ranging from 13 to 16 years of service as Evaluation Officers in the Directorate of Evaluation, they were finally absorbed in the Directorate by notification dated 19.12.02. They were absorbed with retrospective effect from the date of their actual joining on deputation in the Directorate of Evaluation. The Petitioners being aggrieved by this notification absorbing the private Respondents with retrospective effect have approached this Court by this writ petition. 5. The case of the Petitioners is that they were originally appointed in the Directorate of Evaluation as Computer and thereafter they were promoted to the post of Evaluation Officer which post they were holding till date. By absorbing the private Respondents with retrospective effect the private Respondents were made senior to the Petitioners. Therefore, according to the Petitioners the private Respondents should not have been absorbed with retrospective effect. In support of their claim the Petitioner hare relied specifically on the Office memorandum No. AR-2/10/7 dated 12.8.75 and also the office memorandum No. AR-7/8/86 dated 13.9.86. By absorbing the private Respondents with retrospective effect the private Respondents were made senior to the Petitioners. Therefore, according to the Petitioners the private Respondents should not have been absorbed with retrospective effect. In support of their claim the Petitioner hare relied specifically on the Office memorandum No. AR-2/10/7 dated 12.8.75 and also the office memorandum No. AR-7/8/86 dated 13.9.86. According to the Petitioner by virtue of this two office memorandums the private Respondents cannot be absorbed with retrospective effect. It is also the case of the Petitioners that the Cabinet decision approving that the private Respondents to be absorbed with retrospective effect have violated the said office memorandum. 6. The State Respondents resisted the claim of the Petitioners and stated in paragraph 5 of the affidavit that the office memorandum had to be considered alongwith the fact that the private Respondents were taken on deputation to the Evaluation Department since the year 1986-87 and that the Department has agreed to absorb them on regular basis and the process for absorbing them has been initiated by the Department since the year 1987-88. However, due to this delay in the process in finalising their case for absorbing them, the matter could be finalised only in the year 2002. It is also contended by the Respondents that the contention of the Petitioners that there was only one tentative seniority list dated 13.3.02 is not correct According to the Respondents they were 3 tentative seniority list but no final seniority list has been published till date. The private Respondents were absorbed by the Department when it was found that they were well qualified, sincere and diligent in their work as Evaluation Officers and that they have been in continuous service on deputation for a long time, therefore as a special case their case was considered for absorption with retrospective effect. The Cabinet memo was prepared after obtaining clearance from the P and AR Department, Finance Department and Vigilance Department and only after obtaining clearance the Cabinet has made a policy decision to absorb the private Respondents with retrospective effect. Therefore, the decision of the Cabinet to absorb the private Respondents is not violative of any statutory provisions. Moreover, no rules have been framed by the Department till date. Therefore, the decision of the Cabinet to absorb the private Respondents is not violative of any statutory provisions. Moreover, no rules have been framed by the Department till date. The Respondents also contended that the matter for inter-se-seniority is to be decided by the DPC but since no DPC could be held the final inter-se-seniority could not be published. 7. The private Respondents also resisted the claim of the Petitioners and stated that after the Directorate of Evaluation was bifurcated from the Planning and Coordination Department on 11.12.68 the Directorate has to take Officers on deputation from the Planning Commission and also from the different Departments from the Government to man the department with sufficient staff. Therefore, the private Respondents were taken on deputation by new Department and their services were extended from time to time as it was found that the services of the Respondents were needed by the Department. The Respondents also contended that after they were taken on deputation in the Evaluation Department their lien in their parent Department was no longer maintained by the parent Department. Besides, the private Respondents were not given any deputation allowances and this shows that they were given regular appointment in the Department of Evaluation for many years. The Respondents also contended that besides the tentative seniority list issued on 13.3.2002 there were other tentative seniority lists issued on 12.1.2002 and 17.1.2003. However, no final seniority list has been published till date. According to the Respondents in the seniority list dated 12.1.02 the private Respondents were shown senior to the Petitioners and also in the seniority list dated 17.1.2003 the name of the Petitioners were shown at serial Nos. 1, 2, 3 and 4 and the name of the Petitioners were shown at serial Nos. 5 and 6. Therefore, in both the seniority list dated 12.1.02 and 17.1.2003 the private Respondents were shown as senior to the Petitioners. This seniority list were not assailed by the Petitioners in this writ petition. The Respondents also contended that absorption of the private Respondents was done after following due procedure and the Cabinet had approved the same after obtaining the clearance from P and AR Department, Finance Department and Vigilance Department. It was only after the procedure was followed the Cabinet memo was placed and it was approved by the Cabinet. The Respondents also contended that absorption of the private Respondents was done after following due procedure and the Cabinet had approved the same after obtaining the clearance from P and AR Department, Finance Department and Vigilance Department. It was only after the procedure was followed the Cabinet memo was placed and it was approved by the Cabinet. Therefore, in absence of the rules, policy decision taken by the Cabinet is not violative of any guidelines or notification. 8. Mr. Koza, learned Counsel for the Petitioners submitted that the office memorandum dated 13.8.75 and 13.9.86 are still in force up till date. According to the office memorandum dated 13.9.86 the case of the Petitioners can be absorbed only after obtaining clearance from the Nagaland Public Service Commission and that too when it is considered necessary and justified and the absorption can be made only after due advertisement/circular of the vacancy calling for the selection of the candidate by the Selection Board. The case of the Respondents was not considered by the DPC and therefore the absorption of the private Respondents was against the policy contained in the said office memorandum. The learned Counsel also contended that the said office memorandum of 1975 and 1986 were not superseded till date and therefore, the said office memorandums are still holding field. 9. Mrs. Y. Longkumer, learned Govt. Advocate submitted that the absorption of the private Respondents was done after following due procedure after taking into consideration the length of service rendered by the private Respondents in the Department. Their case was processed for absorption immediately after they were taken on deputation but due to delay in finalizing their case for absorption they could not be absorbed earlier. The private Respondents can be absorbed only in the year 2002 after the matter was drag on in the Deptt. for many years. The absorption of the private Respondents with retrospective effect was fully considered and examined by the Deptt. and thereafter, the matter was placed before the Cabinet for making a policy decision. The Cabinet also has approved the same after obtaining the clearance from the P and AR Deptt., Finance Deptt. and Vigilance Deptt. Therefore, according to the learned Govt. Advocate the policy decision made by the Cabinet is not violative of the office memorandum. 10. Mr. and thereafter, the matter was placed before the Cabinet for making a policy decision. The Cabinet also has approved the same after obtaining the clearance from the P and AR Deptt., Finance Deptt. and Vigilance Deptt. Therefore, according to the learned Govt. Advocate the policy decision made by the Cabinet is not violative of the office memorandum. 10. Mr. C.T. Jamir, learned Counsel for the private Respondents submitted that the private Respondents have served in the Department for a period ranging from 13 to 16 years by the time they were absorbed. The private Respondents were also not given any deputation allowances and this shows that they were on regular appointment in the Evaluation Department The private Respondents have also not maintained their lien in the parent Department and this is clear from the letter dated 2.3.2000 from the Additional Director of Economics and Statistics, Nagaland and also from the letter dated 13.3.2000 of the Addl. Director of School Education, Nagaland. Therefore, since the lien of the private Respondents were no more maintained in the parent department they are to be treated as regular staff of the Evaluation Department. 11. In order to appreciate the matter in hand the office memorandum dated 12.8.75 and 13.9.86 are re-produced below: GOVERNMENT OF NAGALAND HOME DEPARTMENT ADMINISTRATIVE REFORMS (O and M) BRANCH OFFICE MEMORANDUM Subject: Seniority of the Employees who are sent on Deputation to another Department of the State Government and are subsequently confirmed there. The undersigned is directed to refer to this Department's office Memorandum No. 11/APA/2/65 dated the 27th January, 1967 and to say that a question has been raised whether an employee of the State Government who is appointed on deputation to another post/service in a different Department under the State Government and is subsequently confirmed in the deputation post will count his service for seniority from the date of confirmation in the deputation post or from the date of joining the post on deputation. It has been decided that in such cases services for seniority shall be confirmed from the date on which decision is taken to absorb the deputationist in the deputation post. I. LONGKUMER Secretary to the Government of Nagaland GOVERNMENT OF NAGALAND PERSONAL AND ADMINISTRATIVE REFORMS DEPARTMENT (ADMINISTRATIVE REFORMS BRANCH) OFFICE MEMORANDUM Sub: Filling up of vacancies on Deputation-regular absorption of Deputationist. Instances have been brought to the notice of the Govt. I. LONGKUMER Secretary to the Government of Nagaland GOVERNMENT OF NAGALAND PERSONAL AND ADMINISTRATIVE REFORMS DEPARTMENT (ADMINISTRATIVE REFORMS BRANCH) OFFICE MEMORANDUM Sub: Filling up of vacancies on Deputation-regular absorption of Deputationist. Instances have been brought to the notice of the Govt. that, often appointments on deputation basis to various posts are being made by the concerned appointing authorities without proper advertisement/circulation for the vacancy and the following the laid down procedure for selection of candidates. It has also been brought to the notice of the Government that, while absorbing the deputationists in the Department on a regular basis, the Department do not consult/obtain clearance of the NPSC/DPC as it required. This in effect amounts to, circumventing/contravening the provisions of the rules and orders in force. After careful consideration of the matter and with a view to enforce uniform procedure in the matter, it has now been decided that henceforth, appointment on deputation basis, when considered necessary and justified, shall be made only after due advertisement/circulation of the vacancy asking for applications, in selection of the candidate by the Selection Board. Similarly in case of regular absorption of the deputationists in the Departments, the concerned appointing authority should obtain the prior clearance of the NPSC in case of the posts coming under the purview of NPSC under the NPSC (LF) regulation, in the prior clearance of the DPC in other cases which do not come within the purview of the NPSC. These instruction may be strictly be adhered to. (T.P. IMCHEN) Additional Secy. to the Govt. of Nagaland 12. Admittedly, there is no service rules framed in the Department under Article 309 of the Constitution of India. Therefore, the matter has to be examined on the facts and circumstances of the case. The date of entry of the private Respondents into Government service and their deputation are as follows: Name of the Deputationist Date of first entry into the service Parent Deptt. Designation Name of the post to which appointed Date of appointment on deputation Qualification 1.Chungpongchiten Jarnir 1.4.85 Ecos and Stats Inspector E.O. 31.10.86 MA(Eco) 2. W. Chubala Aier 9.8.79 Edu. A/T E.O. 3.11.86 M.A. (Rural Ecos) 3. Viheshe Zhimomi 28.6.77 Ecos and Stats Inspector E.O. 9.4.87 B.A. 4. Shinito Sema 25.9.84 Edu. A/T E.O. 2.12.89 B.A. 13. Since the date of their services being taken into the Evaluation Department the private Respondents were in continuous service in the Department. W. Chubala Aier 9.8.79 Edu. A/T E.O. 3.11.86 M.A. (Rural Ecos) 3. Viheshe Zhimomi 28.6.77 Ecos and Stats Inspector E.O. 9.4.87 B.A. 4. Shinito Sema 25.9.84 Edu. A/T E.O. 2.12.89 B.A. 13. Since the date of their services being taken into the Evaluation Department the private Respondents were in continuous service in the Department. Their lien in the parent Department was also discontinued as seen from the letter dated 2.3.2000 from the Additional Director of Economics and Statistics and the letter dated 13.3.2000 from the Additional Director of School and Education, Nagaland. Since their lien in the parent Department has already been discontinued the private Respondents cannot be taken back into their parent Department. 14. From the records produced by the learned Govt. Advocate it is seen that the case of the private Respondents for absorption was initiated since 22.9.88 as note appearing at page 1 of the note in record. Since then, the matter has been drag on throughout and inspite of the matter having been pursued by the Department their absorption could not be finalised. On the other hand, records show that the services of the private Respondents were extended from time to time. However, from the note at page 30 of the records it is seen that the matter was taken seriously from 17.8.2002 which is as follows: "The above five officers including R. Kikon have all put more than fifteen years of continuous service and are all occupying the sanctioned posts. These are officers who are sincere and dedicated. P and AR also has given its clearance." After the above note the clearance from the Finance Department was also obtained and also the clearance from the Vigilance Department. It was after this procedure was followed the Cabinet memo was prepared in the note at page 32 of the file. Thereafter, the Cabinet has approved the absorption of the deputationist Evaluation Officers (the private Respondents) with retrospective effect and the impugned notification dated 19.12.2002 was issued. The Cabinet memo and the notification dated 19.12.2002 are reproduced below: GOVERNMENT OF NAGALAND PLANNING AND COORDINATION DEPARTMENT (EVALUATION BRANCH) CABINET MEMORANDUM Sub: Permanent absorption of deputationist service in respect of (1) Lt. R. Kikon (2) W. Chubala (3) Chungpongchiten Jamir (4) Shinito and (5) Vihishi Zhimomi, District Evaluation Officers in the Evaluation Department. The Cabinet memo and the notification dated 19.12.2002 are reproduced below: GOVERNMENT OF NAGALAND PLANNING AND COORDINATION DEPARTMENT (EVALUATION BRANCH) CABINET MEMORANDUM Sub: Permanent absorption of deputationist service in respect of (1) Lt. R. Kikon (2) W. Chubala (3) Chungpongchiten Jamir (4) Shinito and (5) Vihishi Zhimomi, District Evaluation Officers in the Evaluation Department. The Directorate of Evaluation under the Government of Nagaland established on 11.12.1968 from the Planning and Coordination Department. Since the establishment of new Directorate almost all officers were taken on deputation from the Govt. of India especially from the Planning Commission. But from the mid-eighties local employees were taken on deputation and today the officers and staffs are all from the State of Nagaland. Under the establishment of Directorate there are five Evaluation Officers including Lt. R. Kikon who were taken on deputation since mid eighties. These officers have put 11 to 16 years of continuous service. They performed the duties of evaluating the various developmental schemes particularly the Centrally Sponsored Schemes. Based on their findings many guidelines from the Govt. of India have been amended in order to suit the local environment. Though there is no monitory contribution from these employees, with their hard work, flow of central assistance from various Centrally Sponsored Schemes, are always substantial. Unfortunately, inspite of their commitment, devotion and loyalty to their job assignment these officers are yet to permanently absorb in the department. Though they are on deputation because of long continuous service in the department, there is no lien with their respective parent department. Unless they are permanently absorb, their future becomes uncertain as they all are over aged for getting any other Govt. jobs and may also affect the smooth functioning of the department. The Department, therefore, keeping in view of above facts and circumstances have processed for their regular absorption with retrospective effect. The detail of the 5 (five) Evaluation Officers is attached as Annexure 'A'. The P and AR Department and Finance Department has given their clearance which is furnished at Annexure 'B' and 'C respectively. Further, Vigilance Clearance for the 5 (five) officers has also been obtained which may be seen at Annexure 'D'. Their integrity and performance are good and satisfactory. This has the approval of the Minister, Planning and Coordination and Evaluation, Nagaland. The matter is submitted to Cabinet for approval. (IMKONGLEMBA)IAS Secretary to the Govt. of Nagaland. Further, Vigilance Clearance for the 5 (five) officers has also been obtained which may be seen at Annexure 'D'. Their integrity and performance are good and satisfactory. This has the approval of the Minister, Planning and Coordination and Evaluation, Nagaland. The matter is submitted to Cabinet for approval. (IMKONGLEMBA)IAS Secretary to the Govt. of Nagaland. GOVERNMENT OF NAGALAND PLANNING AND COORDINATION DEPARTMENT GENERAL BRANCH NOTIFICATION Dated Kohima, the 19th Dec., 2002 NO.PLN/EVL-10/92/360 Consequent upon approval of the Cabinet vide Memo No. CAB-1/2001 dated 18th December, 2002, the Governor of Nagaland is pleased to absorb the following officers (who are on deputation to Evaluation Directorate) as Evaluation Officers, under the establishment of Evaluation Department in the scale of pay of Rs. 6500-200-10,500/-p.m. with effect from the date mentioned against each name: Sd/- (IMKONGLEMBA) IAS Secretary to the Govt. of Nagaland 15. A reading of the above Cabinet Memorandum and the notification will show that the matter was considered in all aspects and that only after consideration of the matter from all angles the Cabinet has approved the absorption of the private Respondents with retrospective effect. The Office memorandum dated 12.8.75 and 13.9.86 are only guidelines for general absorption of deputation and in absence of the Rules the authority is at liberty to examine the facts and circumstances of each case and make independent decision. In this case the Respondents have considered the special characteristics of the case and made decision by getting the Cabinet approval. 16. Considering that the private Respondents have no more lien in their parent department and that they have rendered long period of service in the Evaluation Department this Court is of the opinion that the policy decision taken by the Cabinet cannot be said to be against the of office memorandum dated 12.8.75 and 13.9.86. Moreover, there is no service Rules in the department till date. If the private Respondents are to be sent back to the parent department they could not be accommodated as they have no more lien in the parent department. By allowing the private Respondents to continue on deputation for long years the matter has been settled by finally absorbing them with retrospective effect. If the private Respondents are to be sent back to the parent department they could not be accommodated as they have no more lien in the parent department. By allowing the private Respondents to continue on deputation for long years the matter has been settled by finally absorbing them with retrospective effect. If that is not done, the long years of service rendered by the private Respondents would have no value and that they shall be made to suffer for no fault of theirs as the delay in their absorption was done by the department and not by the private Respondents. The matter has been finally settled by the Cabinet decision and if the settled matter is unsettled at this stage, it will create more complications rather than to settle the matter once and for all. Needless to say that the private Respondents have a right to claim for the service which they have rendered in the Department though on deputation. 17. In absence of the rules framed under Article 309 of the Constitution of India the Executive is at liberty to make its own policy decision in the matter provided that such policy decision is not in contravention of any law or that it is against the principle of natural justice. In the instant case, admittedly, the Petitioners were promoted as Evaluation Officers on 10.6.94 and 27.6.95 respectively much after the private Respondents were taken on deputation to the Department. Therefore, admittedly the private Respondents held the post of Evaluation Officers prior to the Petitioners and are senior in service as Evaluation Officers to the Petitioners. The private Respondents therefore deserve to be absorbed with retrospective effect as they had rendered long years of service in the department. The Cabinet decision and the order absorbing the Petitioner with retrospective effect vide notification dated 19.12.02 can not therefore be said to be unjust and improper. 18. In view of the facts and circumstances of the case, I am of the opinion that the action taken by the Respondents in absorbing the private Respondents with retrospective effect is not against the guidelines contained in the office memorandum dated 12.8.75 and 13.9.86. 19. For the aforesaid reasons, the Cabinet decision and the contents in the Office Memorandum dated 18.12.02 and the Notification dated 19.12.02 absorbing the private Respondents with retrospective effect are upheld and this writ petition is dismissed. Petition dismissed.