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2006 DIGILAW 1042 (GAU)

Kelhousatuo Angami v. State of Nagaland

2006-11-24

MAIBAM B.K.SINGH

body2006
JUDGMENT M.B.K. Singh, J. 1. Heard Mr. A. Zho, learned Counsel appearing on behalf of the petitioner, Mr. C.T. Zamir, learned Counsel appearing on behalf of the respondent No. 4 and Ms. Lucy, learned Govt. Advocate appearing on behalf of the respondents 1, 2 and 3 (State respondents). The petitioner is aggrieved by the order being No. ED/TPT/C/47/91-92 dated 19.3.05 issued by the Additional Director, Directorate of School Education Nagaland, Kohima by which the private respondent, who, according to the petitioner was junior to him at the relevant time, was promoted to the post of Head Driver w.e.f. 1st March, 2005 in the establishment of the said Directorate. He is also aggrieved by the tentative seniority list dated 29.7.05, which, according to him, was prepared illegally showing the private respondent No. 4 as the senior-most Driver amongst the Drivers attached under the establishment of the said Directorate. This writ petition has been filed praying, mainly, for quashing the above-said promotion order as well as the said tentative seniority list. 2. There is no dispute that the petitioner's service, which had been started as a Driver on an ad hoc basis under an order of the Director of Education, Nagaland, Kohima dated 17.9.79, was regularised w.e.f. 26.9.79 under an order issued by the same authority. There are two seniority lists of Drivers under the Directorate of School Education. One is dated 21.6.85 and filed by the petitioner as Annexure-B to the writ petition and the other is dated 22.6.85 filled by the private respondent No. 4 as Annexure-B to his affidavit-in-opposition. In both the lists, the petitioner is above the private respondent indicating 26.9.79 and 3.11.79 as the dates from which their respective seniorities are to be counted. Accordingly, as per the above-said lists, the petitioner is senior to the private respondent. Even if the subsequent list dated 22.6.85 is taken as the correct one, as per the said list, the petitioner is senior to the private respondent. 3. As per affidavit-in-opposition filed 6n behalf of the respondents 1, 2 and 3, there are two separate seniority lists of Drivers, one is common for the Department, another is from its individual office Department. 3. As per affidavit-in-opposition filed 6n behalf of the respondents 1, 2 and 3, there are two separate seniority lists of Drivers, one is common for the Department, another is from its individual office Department. Further, according to the respondents 1, 2 and 3, though the petitioner was senior to the private respondent in the common seniority list, the latter was the senior-most in the list of the Directorate Pool Education and as such, the private respondent's case was considered for promotion by taking into account his seniority position in the latter seniority list. It is also the case of the Govt. respondents that the private respondent was given promotion according to the tentative seniority list of Drivers attached under the establishment of the Directorate of School Education, Nagaland, Kohima dated 27.7.05 which is Annexure-F to the writ petition. 4. It is to be noted that though the petitioner was appointed as a Driver in the Directorate of School Education Nagaland, Kohima, his name was not included in the said tentative seniority list dated 27.7.05 (Annexure-F to the writ petition), apparently on the ground that he was attached to the Engineering Wing of the Directorate of School Education at the relevant time and not to the Directorate Pool. Thee is a need to examine the legality or otherwise of the classification of Drivers of the Directorate of School Education as those in the Directorate Pool and those attached to different offices and of treating the Drivers belonging to the said two different categories differently. The legality or otherwise of the said tentative seniority list dated 27.7.05 will be determined on the findings of the above examination. 5. Apart from the question of legality or otherwise of the said tentative seniority list dated 27.7.05, the impugned promotion order dated 19.3.05 passed in favour of the private respondent, said to have been passed according to the said tentative seniority list dated 27.7.05, cannot be considered as a valid order in the eyes of law. There is an attempt to convince me that though the said tentative seniority list was published/notified only on 27.7.05, it was in fact in existence at the time of passing the impugned promotion order dated 19.3.05. There is no basis for such an assumption. There is an attempt to convince me that though the said tentative seniority list was published/notified only on 27.7.05, it was in fact in existence at the time of passing the impugned promotion order dated 19.3.05. There is no basis for such an assumption. Since the said tentative seniority list was notified only on 27.7.05, it should be considered to have come into existence only from 27.7.05 and as such the impugned promotion order could not have been and should not have been based on seniority list which came into existence subsequently. There is a room for having reasonable doubt about the propriety of the manner in which the petitioner was deprived of his chance of getting promotion. 6. The private respondent takes substantially the same stand taken by the state respondents. According to the private respondent, he was appointed as a Pool Driver and he cannot be treated at par with the petitioner who was appointed only as a Field Driver. It is the case of the private respondent that the said post of Head Driver is meant for Directorate Pool Driver and as such the petitioner cannot claim promotion to the said post on the basis of the common seniority list. Further, according to the private respondent, the petitioner is wrongly shown as attached to Pool in the seniority list dated 21.6.85 and he was in fact attached to the District Adult Education Officer, Meluri at the relevant time as shown in the seniority list dated 22.6.85. In short, it is the case of the private respondent that he and the petitioner belonged to two different cadres and as such no discrimination was made when the private respondent was promoted to the post of Head Driver on the basis of the seniority list of Pool Drivers dated 27.7.05. 7. There is no any Rule or Law to the effect that the Drivers working under the Directorate of School Education Nagaland, Kohima should be of two cadres or classified as filed drivers and pool drivers. There is nothing to show that only persons having certain special qualification are entitled to be recruited as pool drivers. There is also nothing to show that there are different modes of recruitment and different pay scale in respect of the said two categories of drivers. There is nothing to show that only persons having certain special qualification are entitled to be recruited as pool drivers. There is also nothing to show that there are different modes of recruitment and different pay scale in respect of the said two categories of drivers. In the light of the above circumstances and having regard to the facts that the appointing authority of both the petitioner and the private respondent, who are alleged to belong to two different categories, is one and the same and that they have been drawing the same scale of pay under the same Head Account, one cannot reasonably claim that they belong to two different cadres merely on the basis of the fact of difference in matter of postings after appointment as Drivers of the said Directorate of School Education, Nagaland. In my considered opinion, the said classification of drivers of the said Directorate as field drivers and pool drivers depending on their fortuitous postings cannot be considered as fair, reasonable and just. Accordingly, the impugned promotion order in favour of the private respondent is one passed in violation of Articles 14 and 16 of the Constitution of India and as such it is not sustainable in the eyes of law. There is no any valid reason as to why the benefit of promotion should be confined only to those working as pool drivers in the said Directorate and should not be extended to other drivers working in different Section/Offices of the same Directorate. The impugned seniority list is also not sustainable in the eyes of law. 8. In the result, the impugned promotion order dated 19.3.05 passed in favour of the private respondent and the impugned tentative seniority list dated 29.7.05 are hereby quashed. The concerned Govt. respondents may take appropriate steps for filling up the said post of Head Driver afresh in accordance with relevant law. I pass no order as to the cost.