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2004 DIGILAW 433 (GAU)

Chikhuta Puro v. State of Nagaland

2004-07-01

B.LAMARE

body2004
JUDGMENT B. Lamare, J. 1. Heard Mr. E.Y. Renthungo, learned Counsel for the Petitioner, Mr. L.S. Jamir, learned Addl. Sr. Govt. Advocate for the Respondents Nos. 1, 2 and 3, Mr. A. Zhimomi, learned Counsel for the Respondents Nos. 4 and 5 and Mr. C.T. Jamir, learned Counsel for the Respondent No. 6. 2. The Petitioner was appointed as Assistant Project Officer, Class-II Gazetted under the State Rural Development Agency vide order dated 25.11.83. After rendering about 5 years of service the Petitioner was promoted to the post of Deputy Project Officer Class-I Gazetted vide order dated 13.7.87. By order dated 4.12.90 the Petitioner was further promoted to the post of Deputy Project Director Class-I Gazetted. Thereafter the Petitioner was promoted to the post of Officer on Special Duty vide order dated 5.5.93. 3. In the year 1996 the Government constituted a High Power Committee with the following terms and reference: (1) To review the structural organization of the Directorate of rural Development and recommend suggestions if any for future set up. (2) The Committee to submit report within 45 days from the date of notification. The Committee accordingly, submit its report on 8.8.96 along with its recommendation. One of the recommendation of the Committee is to absorb the entire staff of the DRDA into the Department of rural Development by creating appropriate numbers and level of posts and thereafter the department to redeploy new man power into the DRDA set up. After the said recommendation was made by the Committee the Cabinet vide office memorandum dated 5.11.96 in Agenda No. 13 decided to absorb the DRDA staff both Gazetted and Non-Gazetted into the Rural Development Department. The said Cabinet decision was slightly modified by the Corrigendum dated Nil November 1996 by providing for up gradation of 28 posts of Joint BDO and BDO and for creation of new posts. 4. After the above decision was made to absorb the service of the DRDA into the Rural Development Department a notification dated 3.5.97 was issued by the Commissioner and Secretary, Rural Development Department making provision for regularization of the employees of the DRDA through the respective Departmental Promotion Committee in due course and also the employees of the DRDA on their absorption into the Rural Development Directorate shall rank below the Officers/Staff of the Rural Development Directorate drawing identical pay scale in their respective grade of services. 5. 5. After the above decision was made by the Rural Development Department, 200 posts under Rural Development Department were sanctioned vide notification dated 24.7.97 for the period from 1.5.97 upto 28.2.98. After creation of the posts by the aforesaid notification, the Commissioner and Secretary, Rural Development Department issued a notification dated 25.7.97 appointing and absorbing the employees of the DRDA into the Rural Development Department. The notification dated 24.7.97 for creation of the post to absorb the employees of the DRDA was modified by notification dated 16.4.99. 6. After the creation of the post and the absorption of the employees of the DRDA into the Rural Development Department a tentative seniority list dated 18.11.99 was published as on 1.1.99. The name of the Petitioner is shown at serial No. 6 of the said tentative seniority list. Whereas the name of the Respondents 4, 5 and 6 were shown at serial Nos. 2, 3 and 4. Being aggrieve by this tentative seniority list, the Petitioner has submitted representation to the Respondents to consider his case as according to the Petitioner he was senior to the said Respondents. The Petitioners having received no response has approached this Court for quashing of the office memorandum, corrigendum and the notification showing the name of the private Respondents as senior to the Petitioner. 7. The case of the Petitioner is that by the Cabinet decision contained in the office Memorandum dated 5.11.96 it was stated that the absorption of the DRDA employees will take effect from 1.11.96 and that their inter se seniority shall be fixed in their respective grade through Government notification. The contention of the Petitioner is also that according to the recommendation of the committee set up by notification dated 20.11.96 in its recommendation dated 8.8.96 it is recommended that the seniority of officers who are Deputy Project Officer and Project Director in the DRDA set up should be governed by 3:1 rule that is to say for every 3 (three) years service in this rank in the DRDA set up should count as 1 (one) year in the corresponding rank in the re-organised Department. The service of the Petitioner as Deputy Project Officer and Project Director in the DRDA has to be counted accordingly. The service of the Petitioner as Deputy Project Officer and Project Director in the DRDA has to be counted accordingly. The Petitioner also contended that the cabinet decision dated 5.11.96 was tampered with and that the decision to absorb the employees of the DRDA with effect from 1.11.96 has been changed by the Cabinet Memo dated 8.10.96 in item No. 10 of the Cabinet Memo. 8. The Respondents resisting the above contention of the Petitioner filed an Affidavit in opposition and contended that there was no such Cabinet decision dated 8.10.96. The Respondents also contended that the Cabinet decision is that the seniority of the employees of the DRDA shall be fixed by Government notification. The service of the Petitioner could not be absorbed from 1.11.96 as there was no post at the relevant time. The posts were created only by notification dated 24.7.97 and subsequently the employees of the DRDA were absorbed and appointed in the Rural development Department vide notification dated 25.7.97. The employees of the DRDA including the Petitioner have therefore become the employees of the Rural Development Department only from the date of their appointment and absorption. They cannot therefore claim their seniority with effect from 1.11.96. The Respondents also contended that before absorbing the employees of the DRDA, an option was obtained from the employees and that the Association of the employees or the DRDA known as The Nagaland District Rural Development Agency Employees Association" (NDRDAEA) had made their option on 12th March 1997. In the said option the Petitioner has also given his signature as one of the Executive Committee Member of the Association. This option submitted by the Association also included a condition that the entire service rendered by the Agency's employees in the past be counted for retirement benefits and pay protection. The Respondents therefore contended that the employees of the DRDA including the Petitioner cannot claim the benefit of their past services towards seniority. 9. In order to appreciate the matter, the Cabinet decision in Agenda No. 13 as contained in office memorandum dated 5.11.96 is reproduced below: Agenda No. 13 Merger of DRDA employees with Rural Development: The Cabinet approved the proposal of the Rural Development Department for regular absorption of the DRDA staff-both Gazetted and Non-Gazetted. 9. In order to appreciate the matter, the Cabinet decision in Agenda No. 13 as contained in office memorandum dated 5.11.96 is reproduced below: Agenda No. 13 Merger of DRDA employees with Rural Development: The Cabinet approved the proposal of the Rural Development Department for regular absorption of the DRDA staff-both Gazetted and Non-Gazetted. The Cabinet also directed that the absorption of the DRDA employees will take effect from 1st November, 1996 and their inter-se-seniority shall be fixed in their respective grades through Government Notification. 10. There is a dispute by the Petitioner about the office memorandum dated 5.11.96 as it is alleged that this office memorandum was tampered with and another Cabinet decision dated 8.10.96 was issued. By the said Cabinet decision of 8.10.96 it is provided that seniority may be fixed from the date they are absorbed through a notification. As the question was raised by the Petitioner that this office memorandum dated 8.10.96 has tempered with the Cabinet decision of 5.11.96, the original Cabinet decision was called for by this Court and the same was produced by the learned Government. 11. On perusal of the Cabinet decision produced by the Government Advocate there was no such Cabinet decision of 8.10.96. It is also not possible that the Cabinet decision of 5.11.96 was superseded or tampered with by a Cabinet decision of 8.10.96 which was before the office memorandum dated 5.11.96. Therefore, there cannot be such Cabinet decision of 8.10.96 in existence. After the above Cabinet decision dated 5.11.96 was taken the notification dated 24.7.97 was issued creating 200 posts under the Rural Development Department as per annexure-A of the said notification. On the basis of this notification creating the posts, the notification dated 25.7.97 was issued appointing and absorbing all the 200 employees of the DRDA into the Rural Development Department. Thereafter, a tentative seniority list dated 18.11.99 was issued. 12. In order to appreciate the fact as to from which date the inter-se-seniority of the employees of the DRDA including the Petitioner is to be counted, reference may be made to the office memorandum dated 5.11.96 and the corrigendum dated Nil November 1996. In the Agenda No. 13 of the office memorandum dated 5.11.96 it is seen that the Cabinet decided that the absorption of the DRDA employees will take effect from 1.11.96 and their inter-se-seniority shall be fixed in their respective grades through Govt. notification. In the Agenda No. 13 of the office memorandum dated 5.11.96 it is seen that the Cabinet decided that the absorption of the DRDA employees will take effect from 1.11.96 and their inter-se-seniority shall be fixed in their respective grades through Govt. notification. Similarly, in the corrigendum dated Nil November 1996 in clause B of the corrigendum it is provided that the inter-se-Seniority shall be fixed in their respective grades through Govt. notification. Therefore, by these two Cabinet decisions the inter-se-seniority of the DRDA employees after absorption shall be made through Govt. notification. 13. On the basis of the above office memorandum and corrigendum, the notification dated 3.5.97 was issued. The said notification reads as follows: Government of Nagaland Rural Development Department No. RD/DRDA-7/95-96 Dated, Kohima, the 3th May/97 Notification On having been approved by the Cabinet (Agenda No. 13) of their meeting held on 14.11.1996, absorption of all the 200 (two hundred) regular employees of the District Rural Development Agencies into Rural Development Directorate as per Annexures A.B.C.D.E.F.G. and H attached with effect from the date of this notification against the posts created vide this Department's letter of even number dated 6th 8 May/1997 is ordered under the following terms and conditions: (i) The employees of DRDAs are absorbed in their present grade of service of identical pay scale in the R.D. Directorate. (ii) Past services under DRDA and erstwhile SRDA shall be counted for the purpose of pension benefit only. (iii) Their GPF contributions shall be withdrawn and deposited with the Accountant General. Nagaland as their GPF contributions as per provisions of relevant rules. (iv) The normal pay and allowances which they have been drawing before absorption shall be allowed to be drawn by allowing "Pay Protection" as per rules. (v) This en masse absorption of DRDA employees into Rural Development Directed shall be regularized through respective DPCs in due course. (vi) The DRDA employees on their absorption into Rural Development Directorate shall rank next below the officers/staff of the Rural Development Directorate drawing identical pay scales in their respective grade of services. (vii) Other issues not specifically covered with the above mentioned terms and conditions shall be sorted out/finalized as per rules governing Civil Service matters. (C.K. Sangtam, IAS) Commissioner and Secretary to the Govt. of Nagaland" 14. (vii) Other issues not specifically covered with the above mentioned terms and conditions shall be sorted out/finalized as per rules governing Civil Service matters. (C.K. Sangtam, IAS) Commissioner and Secretary to the Govt. of Nagaland" 14. In Clause (ii) of the notification it is provided that the past service under DRDA and erstwhile SRDA shall be counted for the purpose of pensionary benefit only. Clause (vi) of the notification provided that the DRDA's employees on their absorption into Rural Development Department shall rank next below the officers/staff of the Rural Development Directorate drawing identical scale of pay. The above notification was followed by another notification dated 25.7.97 whereby the employees of the DRDA were appointed and absorbed into the Rural Development Department. In the said notification in Clause (vi) the same provision is made with regard to the seniority of the DRDA as per the notification dated 3.5.97 that is to say the employees of the DRDA shall rank next to the officer/staff of the Rural Development Department. 15. In accordance with the Cabinet decision and the aforesaid notifications dated 3.5.97 and 24.7.97 option of the employees of the DRDA was also obtained and the DRDA employees had opted that they are not entitled to count their past service in the erstwhile SRDA and DRDA towards seniority after absorption. Therefore, the notification dated 3.5.97 and 24.7.97 was issued purely according to the Cabinet decision dated 5.11.96 and corrigendum dated Nil November 1996. 16. It is, however, contended by the learned Counsel for the Petitioner that the Petitioner is entitled to count his past service towards seniority on the basis of the report of the High Power Committee dated 8.8.96. By this report of the High Court Committee it is recommended that the seniority of the officers who are presently the Deputy Project Officer and Project Director in the DRDA should be governed by 3:1 rule. This recommendation of the Committee was not taken into consideration by the Cabinet while passing the Cabinet decision dated 5.11.96 and also while issuing the corrigendum dated Nil November 1996. In both the Cabinet decision and corrigendum the inter-se-seniority shall be fixed through Govt. notification which was done in this case. This clearly shows that the recommendation of the Committee with regard to this effect was not accepted by the Cabinet. In both the Cabinet decision and corrigendum the inter-se-seniority shall be fixed through Govt. notification which was done in this case. This clearly shows that the recommendation of the Committee with regard to this effect was not accepted by the Cabinet. Therefore, the submission of the Petitioner to count his past service on the basis of the recommendation of the High Power Committee cannot be taken into consideration and it is rejected. 17. The next contention of the learned Counsel for the Petitioner is that after the Cabinet decision of 5.11.96 the Chief Minister alone can not issue the corrigendum dated Nil November 1996. The answer to this question raised by the Petitioner is met in Rule 21(1) of the Rules of Executive Business. Rule 21(1) of the Rules reads as follows: 21. (1) When a case has been decided by the Cabinet after discussion at a meeting the Minister concerned shall take action to give effect to the decision. If, however, any deviation (sic) proposed to be made from that decision, the case shall be submitted to the Chief Minister by the Minister concerned and further action on it will be taken according to any directions of the Chief Minister. By this provision of the Rules, the issue of corrigendum is within the power of the Chief Minister. There is no illegality in it. 18. The next contention of the learned Counsel for the Petitioner is that the Petitioner is entitled to the benefit of the notification dated 12.8.1975 issued by the Secretary, home Department, Administrative Reforms (O and M) Branch. The said notification reads as follows: Government of Nagaland Home Department Administrative Reforms (O and M) Branch No. RB-2/10/71 Dated Kohima the 12th August 1975 Subject: Seniority of Employees who are sent on Deputation to another Department of the State Government and are subsequently confirm there. The undersigned is directed to this Department's Office Memorandum No. 11/APA/ 2/65 dated 27th January 1967 and to say that a question has been raised whether an employee of the state Govt. 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 joining the post on deputation. 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 joining the post on deputation. It has been decided that in such cases services for seniority shall be counted from the date on which decision is taken to absorb the deputationist in the deputation post. I. Longkumer Secretary to the Government of Nagaland 19. The above notification speaks about the absorption of the persons who are on reputation from one Government Department (sic) another department and their seniority will be counted from the date the decision was taken to absorb the deputationist into a regular post in the Department to which he is on deputation. The Petitioner was never on deputation to the Rural Development Department and his service was directly absorbed on the policy decision taken by the Government. Therefore, the aforesaid notification is not applicable is case of the employees of the DRDA including the Petitioner after absorption into the Rural Development Department. 20. From the facts and circumstances as discussed above, a clear picture has now emerged that the seniority of the service of the Petitioner and other employees of the DRDA should be counted after their absorption into the Rural Development Department as per the notifications dated 31.5.97 and 24.7.97. The Respondents may therefore issue the final seniority list in terms of the aforesaid notifications. There is no merit in this writ petition and accordingly it is dismissed. Before parting with the records, it is however observed that in the Cabinet decision in Agenda No. 13 it was decided that the absorption of the DRDA employees will take effect from 1.11.1996. This Cabinet decision stands till date. The employees of the DRDA including the Petitioner are, therefore, entitled to count their services in the Rural Development Department with effect from 1.11.1996 for pensionary and other benefits admissible under the Rules. Petition dismissed