Research › Search › Judgment

Gauhati High Court · body

2005 DIGILAW 689 (GAU)

UBSI Biren Lotha v. State of Nagaland

2005-09-16

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. The five writ Petitioners presently working as Unarmed Branch Sub-Inspector (UBSI) are aggrieved by alleged denial of promotion to the rank of Unarmed Branch Inspector (UBI) and their alleged super-session by the Respondents No. 4 to 13. 2. The facts on the basis of which such grievance has been raised are as follows: 3. The five writ Petitioners entered into the services of the Respondents as UBSI during the years 1991-94. On completion of the 8 years of service as such, by Annexure-A movement order dated 2.7.02, they along with others were directed to appear in the Central Promotion Test (CPT) to be conducted at PTS Chumukedima. Accordingly, they appeared in the CPT and altogether 65 candidates were selected as fit for promotion to the rank of UBI subject to availability of vacancies, clean ACRs and vigilance clearance. (emphasis added). The fit list was published by order dated 22.7.2002. The Petitioners were also found fit and their names were included in order of merit at serial No. 30, 33, 27, 44 and 38 respectively. 4. By Annexure-C notification dated 13.5.03, 20 UBSIs were promoted as UBI. Such promotion was made maintaining the merit position as per the CPT list dated 22.7.02. Thereafter three more UBSIs were promoted by notification dated 21.8.03. This time also the merit positions in the CPT list were maintained. 5. After the aforesaid promotions of 23 personnel it was the expectation of the Petitioners that according to their merit positions in the CPT list, their turn would come for promotion. However, they could come to know that the State Government was proposing to review the CPT merit list and to grant promotion on the basis of the seniority in service and not on the basis of the merit positions obtained in the CPT merit list. The representations submitted by the Petitioners on 2.11.04 yielded no result and by the impugned order dated 12.1.05 (Annexure-H), the modified CPT list rearranging the same in order of service seniority of the candidates as per the recommendation of the review committee was published. Based on such rearranged CPT list as per the recommendation of the review committee, further promotions were made promoting 10 UBSIs to the next higher rank of UBI vide order dated 13.1.2005. These 10 UBSIs are the Respondents in this proceeding. 6. Based on such rearranged CPT list as per the recommendation of the review committee, further promotions were made promoting 10 UBSIs to the next higher rank of UBI vide order dated 13.1.2005. These 10 UBSIs are the Respondents in this proceeding. 6. It is the grievance of the Petitioners that CPT merit list could not have been modified so as to make a list of successful candidates based on the principle of seniority cum merit although the same was prepared on the basis of the principle of merit cum seniority. Their further grievance is that when the CPT list drawn on merit cum seniority basis was acted upon by granting promotions to 23 UBSIs, the Respondents could not have modified the same so as to rearrange the positions of the selected candidates, applying the principle of seniority cum merit. To buttress their such stand, the Petitioners have placed reliance on the interim orders dated 5.6.98 and 25.11.98 passed by this Court in a W.P. (C) being C.R. No. 47(K) of 1998. In the said case, dealing with an earlier CPT list, an interim order was passed directing the State Govt. not to consider the case of any other officers before the CPT list is exhausted. It was submitted that the CPT list was exhausted by providing promotion to all the candidates included in the list and secondly writ petition was withdrawn as recorded in the final order dated 25.1.2000. 7. The State as well as the private Respondents have filed their counter affidavits. In both the affidavits, a preliminary objection has been raised regarding maintainability of the writ petition on the ground that the CPT list published on 25.1.02 which was expressly stated to be valid for one year having expired on 21.7.03, the writ Petitioners by filing the writ petition in 2005 cannot enforce the same. Be it stated here that while publishing the CPT list dated 22.7.02 by Annexure-B order, it was specified that the list would be kept valid for one year from the date of publication unless otherwise revalidated by the Government. (Emphasis added) 8. In the counter affidavit filed by the State Respondents apart from raising the preliminary objection, following pleas have been raised: (i) The CPT list is not final merit list for effecting promotion, but the same is a list containing the names of the officers fit for promotions. (Emphasis added) 8. In the counter affidavit filed by the State Respondents apart from raising the preliminary objection, following pleas have been raised: (i) The CPT list is not final merit list for effecting promotion, but the same is a list containing the names of the officers fit for promotions. Such test is conducted to ascertain the fitness of the officers for promotion from UBSI to UBI and such test includes both physical and professional. The persons securing the bench mark are considered fit and their names are included in the CPT list for promotion subject to fulfillment of other conditions. (ii) After the list is prepared the suitability of the officers for promotions on the basis of their ACRs, vigilance report and availability of vacancies in considered by the Police Establishment Board which is the Departmental Promotion Committee (DPC) consisting of (a) Chief Secretary, (b) Home Commissioner, (c) Home Secretary (Police Branch), (d) Secretary in the P & AR Department and (f) Director General of Police. (iii) Prior to 1996 promotion to the rank of UBI was made on the basis of the principle of seniority cum merit, but by notification dated 24.6.96 the Government of Nagaland adopted the principle of merit cum seniority for such promotion. Such principle remained valid till 19.8.04 when the Government of Nagaland issued Office Memorandum dated 19.8.04 by which the principle of merit cum seniority was done away with and the system of fit and unfit based on the bench mark to be obtained by a candidate was introduced. (iv) On the basis of such new criteria adopted by the aforesaid memorandum dated 19.8.04 the CPT merit list was reviewed by the Review Committee pursuant to which the impugned list was published. As per the new guidelines, the officers who are found fit for promotion were included in the impugned list in order to their seniority. (v) The CPT merit list dated 22.7.02 created resentment amongst the senior officers inasmuch as by the time they could earned their promotions, they would have retired from service. As against the appointments of the private Respondents during the period of 1982-89, the Petitioners having been appointed during the period of 1991-94, granting of promotions to the Petitioners on the basis of the CPT merit list would have earned resentments among their seniors. As against the appointments of the private Respondents during the period of 1982-89, the Petitioners having been appointed during the period of 1991-94, granting of promotions to the Petitioners on the basis of the CPT merit list would have earned resentments among their seniors. While promoting the 23 officers on the basis of the CPT merit list, the flaws in the fit list were not noticed and when the flaws became clear which resulted in deprivation of senior persons although got selected for promotion, the Government decided to reexamine the matter and constituted a Review Committee for the purpose. Accordingly, the Review Committee recommended the impugned list by way of modification of the earlier CPT list based on the new guidelines formulated and circulated on 19.08.04. 9. The private Respondents in their affidavit have supported the action of the State Respondents in reviewing the CPT merit list apart from the plea of expiry of the list after one year of its publication. 10. The Petitioners have filed their rejoinder affidavit to the counter affidavit filed by the State Respondents. Their basic thrust in the rejoinder affidavit is that there was no question of reviewing the CPT merit list altogether adopting a different criteria. They have asserted that once the CPT merit list was acted upon by promoting 23 personnel, the Petitioners could not have been discriminated by adopting another criteria modifying the CPT list on that basis. They have highlighted as to how the CPT was conducted for promotion to the rank of UBI based on distribution of marks category wise such as turn out, drill weapon, law with books, law without books, service records and viva-voce. Referring to the recommendation made by the Review Committee, the Petitioners have highlighted as to how the Review Committee made the recommendations for promotion of all the UBSIs with retrospective effect by creating supernumerary posts and thereto maintain seniority as per the revised/modified fit list. 11. I have heard Ms. Z. Zhimoni, learned Counsel for the Petitioner and Mr. B.N. Sarmah, learned Sr. Counsel assisted by Mr. A. Pongener, learned Advocate for the official Respondents. Mr. A. Zho, learned Counsel made submissions on behalf of the Respondents No. 4 to 13. 12. There is no manner of doubt that the CPT list published vide order dated 22.7.02 was specified to be valid for one year unless otherwise revalidated by the Government. Counsel assisted by Mr. A. Pongener, learned Advocate for the official Respondents. Mr. A. Zho, learned Counsel made submissions on behalf of the Respondents No. 4 to 13. 12. There is no manner of doubt that the CPT list published vide order dated 22.7.02 was specified to be valid for one year unless otherwise revalidated by the Government. Nothing could be brought on record by the Petitioner so as to suggest that the said list was revalidated by the Government beyond the prescribed period of one year. However, the learned Counsel for the Petitioner strenuously argued placing reliance on Annexure-E notification dated 21.8.03 by which 3 candidates included in the select list at serial Nos. 23, 24 and 25 were promoted that the notification having been issued beyond the prescribed period of one year, it can safely be presumed by necessary implication that the CPT list was revalidated by the Government. However, in absence of any order revalidating the CPT list, it cannot be said merely on the basis of the said notification dated 21.8.03 that the list got revalidated. Apart from the fact that 3 persons included in the notification are not parties to this proceeding, if any illegality was committed by issuing the said notification dated 21.8.03, such illegality cannot give rise to any cause of action to the writ Petitioners. If the benefits extended to the said 3 candidates are also to be extended to the Petitioners, same will be a case of negative equality. 13. There is another aspect of the matter. In both the orders of promotion dated 13.5.03 (Annexure-C) and 21.8.03 (Annexure-E) the recommendations of the Police Establishment Board were mentioned. It is on that basis, it was argued by Mr. Sarmah, learned Sr. Counsel for the State Respondents that the promotions were not effected solely on the basis of the CPT merit list, but the recommendations of the Police Establishment Board were also taken into consideration. As noticed above, it is the stand of the Respondents that while the CPT list is a list of candidates who are fit for promotion, the recommendations made by the Police Establishment Board on the basis of the CPT list is the foundation of such promotion. Even in the CPT list, the promotion to be given was subject to validity of vacancies, clean ACRs and vigilance clearance. 14. Even in the CPT list, the promotion to be given was subject to validity of vacancies, clean ACRs and vigilance clearance. 14. After the aforesaid development, the Government of Nagaland issued the Office Memorandum dated 19.8.04 laying down a different criteria for promotion. As per the criteria, the candidates are to be classified as fit and unfit based on bench mark they obtained. Once the incumbents is declared to be fit by the recommending authority, they are to be promoted in order of their seniority in the substantive grade. Pursuant to the said notification dated 19.8.04, the case of the Petitioners and others was considered by the review selection Board and after such review selection the impugned list as contained in Annexure-H order dated 12.1.05 was issued. While it is true that the CPT list was made the foundation for such review, but at the same time the Review Committee also took into account the new promotion policy adopted vide office memorandum dated 19.8.04. 15. If the CPT merit list was not revalidated and the same has spent its force with the expiry of one year as stipulated in the order publishing the list, the Petitioner cannot claim that they should be promoted on the basis of the said list. However, it appears that the Respondents made the said CPT merit list as the foundation for carrying out a review by the Review Committee, which will be evident from the impugned order dated 12.1.05 itself. 16. The whole basis of such policy decision of the Government of Nagaland was the purported inadvertent omission towards consideration of the case of the seniors in its true perspective. As highlighted in the counter affidavit, while drawing the CPT merit list, that aspect of the matter was not taken into consideration leading to deprivation of many seniors from their promotion in due time although were included in the CPT list. 17. It is in the above context, the Respondents in paragraph of the counter affidavit have highlighted as to how the Review Committee took into consideration the following aspects of the matter: (a) In the fit list of 2002 the senior officers were put to great disadvantage and in fact some of the seniors were made junior to those who secured higher marks. For example, in one case a UBSI namely, Shri Fudqo, Mao, who was at serial No. 2 in the seniority list of the S.Is., was listed at serial No. 65 in the Fit list in terms of merit which from the point of equity is unjust and unfair as an officer of the 1982 batch cannot be expected to compete equally with another of the 1994 batch whether it is physical fitness or professional activities. This is particularly important because the senior most UBSI joined service in 1982 and completed 20 years of service in 2002 while the junior most joined service in 1994 and completed only 8 years of service. Therefore, the fit list led to the promotion of very junior officers to the rank of UBI while the senior ones continued to stagnate. This was considered to be unjust and unfair by the Respondents. (b) As per guidelines the total number of officials to be considered for promotion list should be thrice the number of vacancies while in the fit list of 2002 the total number UBSI's found fit for promotion was 65 and all the UBSI's who had completed 8 years of service were called for the CPT although the number of vacancies at the relevant time was only 13-15 only. This made the Fit List unnecessarily long and practically speaking, if the fit list were to continue it would have taken about 5 years or so to promote all the 65 officials listed in the fit list. If the CPT had concluded only 3 officials in order of seniority for every single vacancy in the fit list, the number of candidates would have been in the range of 40-45 only and if the 40-45 officers in order of seniority were called for the CPT, the competition would have been between individuals of similar, if not the same, age group and the competition would have been balanced and fair. (c) When the number of officials invited to the CPT was unusually large the competition for the bench mark became unfair as those who completed 20 years or so of service as UBSIs were made to compete with those who completed only 8 years of service as the latter group while younger in age was better qualified educationally. (c) When the number of officials invited to the CPT was unusually large the competition for the bench mark became unfair as those who completed 20 years or so of service as UBSIs were made to compete with those who completed only 8 years of service as the latter group while younger in age was better qualified educationally. In fact, in earlier years due to the backwardness of the State less qualified individuals were appointed to the service while in the later years due to advancement of education qualified individuals have come to occupy the posts in the same grade. This gave an undue advantage to the junior officers. (d) If the principle of seniority and/or the principle of limiting the fit list only to 3 officials against every single vacancy were followed in preparation of the fit list in 2002 by the Central Promotion Board, it would not have put anybody to disadvantage. Therefore, the fit list of 2002 was not even in accordance with the Memorandum No. AR-12/03/89 dated 24.06.96 although it was stated to be so. (e) In the fit list of 2003 for promotion from ABSI to ABI the Central Promotion Board adopted the criterion of 1:3 for nomination to appear in the CPT and altogether 68 ABSIs appeared for 34 vacancies and the fit list contained only 34 names arranged in order of marks and the last candidates got 105.10 while the first candidates got 145.95. (f) The CPT is a means of weeding out the unfit while selecting the fit officers for promotion and as such those who secure the bench mark should be included in the fit list in order their seniority as this would protect seniority without affecting merit. 18. The Petitioners in their rejoinder affidavit, have highlighted as to how the Review Committee apart from the aforesaid recommendations, also made the following recommendations: (a) All those UBSI in the fit lists so far not promoted, be promoted with retrospective effect by creating supernumerary posts and the seniority in the rank of UBI be maintained as it appears in the revised fit list of UBSI. This arrangement will do away with the injustice done to the senior UBSIs and prevent litigations. This arrangement will do away with the injustice done to the senior UBSIs and prevent litigations. The financial implications on this account will be minimal since the UBSIs are already drawing pay scales equivalent to the scale of Inspectors because of the increments earned in the lower scale and the expenditures will be limited to the amount on account of fixation of pay. (b) That these supernumerary posts of Inspectors may continue till all UBSIs promoted against these supernumerary posts are adjusted against sanctioned posts of UB inspectors in due course of time as and when vacancies arise in regular sanctioned posts. It is absolutely necessary to do so in the interest of justice and fair play and to protect the service seniority of those UBSIs who are senior in service and declared eligible for promotion on the basis of results of the CPT held in 2002 but denied promotion till date due to the defective "Fit List" which has been reviewed now. The Committee is of the view that these supernumerary posts will gradually be reduced and abolished as all the UBSIs thus promoted to UBIs will eventually be adjusted against sanctioned posts over a period of time. 19. Although the Government of Nagaland has acted on the recommendation of the Review Committee, nothing has been stated in respect of the above recommendations. However, during the course of hearing, the learned Sr. Counsel for the State Respondents submitted that the aforesaid recommendations made by the Review Committee was not accepted by the Government of Nagaland. Apart from such submissions made, nothing was placed on record so as to bring home such an argument. 20. Although the Respondents have pleaded that the CPT was not the final list to be acted upon for promotion as UBI, in reality they acted upon the same for promotion as will be evident from Annexure-C and E orders of promotion. In all probability the CPT merit list was placed before the Police Establishment Board who in turn simply endorsed the list for promotion. In all probability the CPT merit list was placed before the Police Establishment Board who in turn simply endorsed the list for promotion. The whole basis of preparing the CPT list was merit cum seniority and it is in this context, the learned Counsel for the Petitioner strenuously argued that the list having been drawn on merit cum seniority and the promotions having been effected on that basis vide Annexures-C and E orders dated 10.5.03 and21.8.03, at a later point of time the Respondents could not have adopted the principle of seniority cum merit so as to rearrange the CPT merit list. Such an argument cannot be said to be wholly unjustified. However, having regard to the fact that the Government of Nagaland, in the meantime took a policy decision and adopted a different criteria for promotion vide office memorandum dated 19.8.04, irrespective of making the CPT merit list the foundation in drawing the impugned list dated 12.1.05, such an action on the part of the State Respondents cannot be said to be wholly unjustified. It is not the case of altogether obliterating the chance of promotion of the Petitioners. The Respondents in their counter affidavit have highlighted as to how the CPT merit list was drawn in excess of vacancies. 21. There is another aspect of the matter. If the CPT merit list is to remain valid for all the times to come till the same is exhausted by appointing the candidates against future vacancies without any review of the same, the import and purport of drawing such a fit list would be frustrated. The candidates included in the CPT merit list will have to have continued fitness and suitability for promotion. It is in this context, periodical review of the select list is emphasized. Possibly keeping in that view of the matter in mind the list was specified to be valid for one year unless revalidated by the Government. Although the CPT merit list was made the foundation for drawing the impugned list dated 12.1.05, the State Respondents could not be oblivious of the new promotion policy adopted by office memorandum dated 19.8.04. 22. During the course of hearing of the case, Mr. Sarma, learned Sr. Although the CPT merit list was made the foundation for drawing the impugned list dated 12.1.05, the State Respondents could not be oblivious of the new promotion policy adopted by office memorandum dated 19.8.04. 22. During the course of hearing of the case, Mr. Sarma, learned Sr. Counsel for the State Respondents submitted that the Government of Nagaland is seriously proposing and engaged in the process for upgradation of all the left out incumbents in the CPT merit list who have been included in the impugned list dated 12.1.05 with change of positions compared to the CPT merit list. He also submitted that in view of the ban on creation of new posts, such a course of action has been adopted by the Government of Nagaland. He submitted that once the incumbents are upgraded to the next higher rank of UBI, they will maintain their seniority in their substantive grade. 23. In view of the above, it will be seen that the promotion of the contained altogether 65 names, none others have approached this Court making a grievance against the revised list dated 12.1.05 except the five Petitioners. As regards the promotion made vide Annexures-C and E orders dated 13.5.03 and 21.8.03, such promotions having been effected in respect of the candidates whose merit positions were above the Petitioners in the CPT list, the Petitioners are not affected by such promotions and fixation of their seniority on the basis of the CPT merit list. 24. With the upgradation of the Petitioners along with other, they will maintain their seniority in their substantive grade. Thus, while not interfering with the impugned revised list dated 12.1.05 and the order of promotion dated 13.1.05, it is hereby provided that the Respondents will take decision in respect of the aforesaid recommendation of the Review Committee as quoted above. 25. The whole situation giving rise to the present litigation was the creation of the State Respondents and the heart burning on the part of the Petitioners can well be appreciated, but at the same time, it is a settled position in service jurisprudence that all the employees can not be made happy in a given situation and resentment will always remain with some of the employees. It will be for the Government of Nagaland to remove such resentment as far as possible taking into account the aforesaid recommendations of the Review Committee. 26. It will be for the Government of Nagaland to remove such resentment as far as possible taking into account the aforesaid recommendations of the Review Committee. 26. With the above recommendations and observations, the writ petition stands disposed of. However, there shall be no order as to costs.