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2008 DIGILAW 723 (GAU)

Toholi Zhimomi v. State of Nagaland

2008-09-23

P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. Heard Mr. A. Zhimomi, Learned Counsel for the petitioner and also heard Mr. L.S. Zamir, learned senior Government advocate for the official respondents and Mr. C.T. Zamir, Learned Counsel for the private respondents. 2. Both these petitions are being heard together and being disposed of by this common judgment and order as they involve similar facts and questions of law. The facts essential for disposal of these two petitions are taken from the WP(C) No. 259(K) of 2006. The post of Assistant Divisional Accountant and Junior Divisional Accountant were recruited by the respective government departments through the Accountant General, Nagaland. The petitioners were so recruited in the year 1980. There was no statutory rule governing the services of this set of post of accountants. As opposed to this, there was another set of service known as the Nagaland Finance and accounts service governed by the Nagaland Finance and Accounts Service Rules, 1982 ('1982 Rules' only) framed under Article 309 of the Constitution of India. In the said rules, the post of Junior Accounts Officer were included in the Class-II services and the post of Sub-Treasury Officer and Audit Officer were latter included in the Class-II service by amending the aforesaid 1982 Rules vide notification dated 29.9.1988. This was the first steps of the government to bring the accounts service appointed through the Accountant General, Nagaland and the Finance and accounts services recruited under 1982 rules into one cadre. This was because the functions and duties performed by the persons in the said services are of similar nature. The government ultimately amalgamated these two services into a single service by constituting a new service known as Nagaland Subordinate Finance, Accounts and Audit service under the control of the Directorate of Treasuries and Accounts under Finance Department vide notification No. FIN/TA/1-5/88 dated 8.3.1990. There were six categories of posts in the new service including the Divisional Accountant and Junior Divisional Accountant and Assistant Divisional Accountant which are commonly known as Subordinate Service, i.e., Class III (non-gazetted). Consequently, the Government vide O.M. No. FIN/TA/105/88 dated 10.5.1990 directed the departments not to make further recruitments, transfer, promotion etc. as was done earlier in respect of the posts brought under the Directorate of Treasuries and Accounts. Consequently, the Government vide O.M. No. FIN/TA/105/88 dated 10.5.1990 directed the departments not to make further recruitments, transfer, promotion etc. as was done earlier in respect of the posts brought under the Directorate of Treasuries and Accounts. The process of amalgamation was brought to final stage by re-designation/up-gradation of the posts of Divisional Accountant (the post held by the petitioners) as Junior Divisional Accounts Officer (post which belongs to Class II junior grade gazetted) under the establishment of Finance and Accounts Service, Nagaland. Accordingly, as many as 33 Junior Divisional Accountants, including the petitioners, were promoted to the post of Junior Divisional Accounts Officer (Class II junior grade gazetted) vide notification No. FIN/TA/1-23/92 dated 8.5.1992. By another Government notification No. FIN/TA/1-5/83(Pt.) dated 1.7.1995 (Annexure-F), the post of Junior Divisional Accounts Officer was re-designated as Divisional Accounts Officer and by virtue of this re-designation, the petitioners are now holding the post of Divisional Accounts Officers. 3. The further promotion of the petitioners from Class II junior grade gazetted post to Class I junior grade gazetted has been denied, although, such promotion has been given to many other Class II officers like Sub-Treasury Office, Junior Accounts Officer and Audit Officer belonging to Nagaland Finance and Accounts Service. Against this alleged discrimination, the petitioners filed several representations before the authority, which was replied by the government, vide letter No. FIN/TA/1-3/94(Pt.) dated 6.6.2003 to the effect that the Sub-Treasury Officer/Junior Accounts Officer/Audit Officer form a different cadre from the cadre of Divisional Accounts Officer and the promotion to next higher grade would be made on 50:50 basis. Being aggrieved, the petitioners filed representation against this decision of the government. Without considering the petitioners prayer, the government promoted some more officers (private respondents) to Class I junior grade posts namely. Assistant Director of Accounts and Treasuries, Treasury Officer and Accounts Officer and some of them were even further promoted to Class I (senior grade ID like Deputy Director of Accounts and Treasuries, Senior Treasury Officer and senior Audit Officers. 4. Mr. Assistant Director of Accounts and Treasuries, Treasury Officer and Accounts Officer and some of them were even further promoted to Class I (senior grade ID like Deputy Director of Accounts and Treasuries, Senior Treasury Officer and senior Audit Officers. 4. Mr. Zhimomi, Learned Counsel for the petitioners submits that with the constitution of new service i.e., the Nagaland Subordinate Finance, Accounts and Audit Services under the control of Directorate of Treasuries and Accounts under Treasuries, Finance, Accounts and Audit were amalgamated into one single services, i.e., Class III (non-gazetted) and no distinction between the post of Divisional Accounts Officers being held by the petitioners under the accounts services and the others in the Treasuries, Finance and Audit Services can be made in all matters including promotion to higher grade/posts. Mr. Zhimomi further submits that in view of this Government decision as reflected in the Government notification dated 8.3.1990, all the posts in the Directorate of Treasuries, Finance, Accounts & Audit were amalgamated into a single service cadre i.e., Class III (non-gazetted) and no distinction between the post's of Divisional Accounts Officer, being held by the petitioners, in the accounts services and the others in the Treasuries, Finance and Audit Services can be made for promotion to higher grade/class and post. Mr. Zhimomi further submits that in view of this government, decision as reflected in the notification dated 8.3.1990, the 1982 Rules have been rendered redundant and the same cannot be enforced for the purpose of denying seniority over the said respondents and the legitimate promotion to the petitioners. Moreover, according to Mr. Zhimomi, the 1982 rules is no longer in force with the framing of new service Rule namely "The Nagaland Treasury, Accounts and Audit Service Rules, 2002 (Part-I)" ('the 2002 Rules') which were framed under Article 309 of the Constitution of India. The notification dated 6.6.2003 issued by the Government placing the post of Divisional Accounts Officer being held by the petitioners and the equivalent post of Sub-Treasury Officer/Junior Accounts Officer/Audit Officer at different cadre and requiring to have separate seniority lists, has also become redundant, with the framing of the 2002 Rules. 5. The notification dated 6.6.2003 issued by the Government placing the post of Divisional Accounts Officer being held by the petitioners and the equivalent post of Sub-Treasury Officer/Junior Accounts Officer/Audit Officer at different cadre and requiring to have separate seniority lists, has also become redundant, with the framing of the 2002 Rules. 5. It is also submitted by the Learned Counsel for the petitioners that the promotion to the private respondents have been given in contravention of provision under Rule 8 of the 2002 Rules inasmuch as, the respondent authorities promoted them without holding the DPC and as such, the promotion made dehors the rules are liable to be quashed by this Court with a direction to the respondent authorities to hold DPC for regularization of services of the petitioners as well as the private respondents in the grade of Divisional Accounts Officer, Sub Treasury Officer/Junior Accounts Officer/Audit Officer and accordingly give promotion to the next higher grade, i.e., the Assistant Director/Treasury Officer/Accounts Officer under the provision of 2002 Rules. The following decisions have been cited and relied upon by Mr. Zhimomi, Learned Counsel for the petitioners (i) Union of India and Ors. v. Somasumdaram Viswanath and Ors. (1989) 1 SCC 175 , wherein, it has been held that if there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the Rules made under the proviso to Article 309 of the Constitution prevail and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by an appropriate Legislature, the law made by an appropriate Legislature prevail. The Apex Court also held that unless there is anything in the Rules made under proviso to Article 309 of the Constitution, which is redundant to instructions contained in office memorandum, which is apparently issued under Article 73 of the Constitution of India is entitled to be treated as valid and binding from all concerned. In the case of C. Rangaswamaiah and Ors. In the case of C. Rangaswamaiah and Ors. v. State of Karnataka (1998) 6 SCC 66 , wherein, it has been held by the Supreme Court that the administrative orders even creating post can be issued so long as they are not inconsistent with rules that is to say, so long as there is no prohibition in the Statutory Rules for creation of such posts. 6. The submissions of the Learned Counsel for the petitioners, Mr. Zhimomi have been countered by Mr. L.S. Zamir, learned senior government, advocate based on the averments made in the affidavit-in-opposition filed by the official respondent Nos. 1 to 3 as under: (i) The posts of Auditor/Assistant Auditor were created by the government under the Directorate of Treasuries and Accounts vide notifications No. FIN/TA/6-21/80 dated 5.6.1987 and No. FIN/TA/3-2/85 dated 23.11.1986 and thereafter, the post of auditor was upgraded to audit officer and the same was added as a new entry in Schedule 1(A) of the Nagaland Finance and Accounts Service Rules, 1982 by an amendment made in the said Rules. (ii) The posts of Treasury Accountant, Auditors and Assistant Auditors were not amalgamated from various Departments but the same were created for the Directorate of Treasuries and Accounts from the beginning for which, it has been provided in para 4 of the said notification dated 8.3.1990 clearly stipulating that "each of the grade of posts incorporated in the service shall form a separate cadre under the service", i.e., in the grade of Class-III (non-gazetted). (iii) No provision has been made in the letter No. FIN/TA/1-3/94(Pt) dated 6.6.2003 and 1982 Rules for promotion of Divisional Accounts Officer to the post of Accounts Officer/Treasury Officer and the posts of Sub-Treasury Officer/Junior Accounts Officer/Audit Officer form a different cadre distinct/different from the cadre of Divisional Accounts Officers. The initial appointment in the lower grade of Junior Divisional Accountant (entry point) and the job description of the incumbents in this cadre are quite different and distinct from the Junior Accounts Officers/Sub-Treasury Officer and as such, maintenance of a common seniority list for Divisional Accounts Officer/Junior Accounts Officer/Sub-Treasury Officer etc. is neither practicable nor desirable. The initial appointment in the lower grade of Junior Divisional Accountant (entry point) and the job description of the incumbents in this cadre are quite different and distinct from the Junior Accounts Officers/Sub-Treasury Officer and as such, maintenance of a common seniority list for Divisional Accounts Officer/Junior Accounts Officer/Sub-Treasury Officer etc. is neither practicable nor desirable. Further the line of promotion of Junior Divisional Accountant on one hand and the Junior Accounts Assistant on the other are quite distinct up to the level of Divisional Accounts Officer/Junior Accounts Officer/Sub-Treasury Officer for which, two different seniority lists are being maintained and for this reason, it was decided to give promotion to this grade of officers on 50:50 basis, i.e., 50% of the vacancies will be filled up from the cadre of Divisional Accounts Officer and the remaining 50% from the cadre of Sub Treasury Officer/Junior Accounts Officer. This criteria of 50:50 basis is an administrative decision of the Government and not based on any rules. (iv) The departmental promotion to the post of Junior Accounts Officer/Sub-Treasury Officer is restricted to only 50% of the vacancies in that grade while the other 50% is meant for direct recruitment through the Nagaland Public Service Commission ('NPSC') but in the case of Divisional Accounts Officer, 100% of the vacancies are filled up only by promotion from the departmental candidates in the rank of Senior Divisional Accountants. (v) The promotions under challenge are made as per the seniority list in the respective cadre purely on officiating and temporary basis subject to regularization by the DPC and such promotions have been made purely for administrative convenience to ensure smooth functioning of the department. 7. Mr. C.T. Zamir, Learned Counsel for the private respondents raises preliminary objection on the maintainability of the writ petitions on the ground of inordinate delay in approaching the court, on the locus standi and omnibus prayer. 7. Mr. C.T. Zamir, Learned Counsel for the private respondents raises preliminary objection on the maintainability of the writ petitions on the ground of inordinate delay in approaching the court, on the locus standi and omnibus prayer. He submits that the promotion of some of the private respondents were made as far back as in 1999 and no explanation has been offered by the petitioners for filing the instant petitions on such a belated stage, the petitioners have no locus standi to challenge the promotion of the private respondents prior to 15.7.2004 i.e., the date when the 2002 Rules came into force and there is no provision in the 1982 Rules for promotion to the petitioner to the higher post along with the private respondents. Moreover, the petitioners were borne in the Department of Treasuries and Accounts only when the 2002 Rules came into force. Mr. C.T. Zamir, Learned Counsel for the private respondents adopts and endorses the contention and submissions of the State respondents. 8. The first question, as could be understood from the contentions/submissions made by the parties is as to whether the accounts service in which the petitioners were borne, being recruited through the Accountant General, Nagaland long before the framing of 1982 Rules was amalgamated with the Nagaland Finance and Accounts Service, which was created under the said rules. 9. In para 2 of the writ petition, the petitioners have stated, amongst other as follows: ...Earlier, Assistant Divisional Accountants, Junior Divisional Accountants and Divisional Accountants formed a separate service. Assistant Divisional Accountants and Junior Divisional Accountants were recruited by the Departments themselves and the Divisional Accountants were recruited through the office of the Accountant General, Nagaland. This service to which the petitioners belonged was not governed by any statutory rules. As opposed to the petitioners' service, there was another service known as the Nagaland Finance and Accounts Service. The members of this service were governed by the Nagaland Finance and Accounts Service Rules, 1982 ("the 1982 Rules"). 10. This service to which the petitioners belonged was not governed by any statutory rules. As opposed to the petitioners' service, there was another service known as the Nagaland Finance and Accounts Service. The members of this service were governed by the Nagaland Finance and Accounts Service Rules, 1982 ("the 1982 Rules"). 10. No doubt, vide notification dated 29.9.1988, the post of Junior Accounts Officer/Sub-Treasury Officer/Audit Officer were included in Class II posts of the Nagaland Finance and Accounts Service Rule, 1982 but it has not been specifically Mentioned whether the post of Junior Accounts Officer/Sub-Treasury Officer/Audit Officer referred to in the said notification actually meant to include the posts of (i) Assistant Divisional Accountant, Junior Divisional Accountant and Divisional Accountant against which the petitioners were working or (ii) the identical post under various government departments or (ii) the identical posts under erstwhile Directorate of Treasuries and Accounts alone or (iv) all the identical posts recruited by the Accountant General, Nagaland namely the petitioners and the identical posts recruited by the Director of Treasuries and Accounts namely the private respondents before framing of 1982 Rules, The said 1982 Rules were amended vide notification No. FIN/6-6/77 dated 28.10.1986. Sub-rule (1) of Rule 3 of the amended Rules provides that the Nagaland Finance and Accounts Service Class II includes the post of (i) Sub-Treasury Officer and (ii) Junior Accounts Officer. Important to note is the provision made under Rule 3(2), which is quoted below: 3(2). Each of the 6 grades in Sub-rule (1) shall form a separate cadre and the member of any lower grade shall have no claim for appointment to the higher grade except in accordance with the provision of this Rules. 11. As per the 1982 Rules, there is no Class III post. So, the Government of Nagaland vide notification dated 8.3.1990 constituted the "Nagaland Subordinate Finance, Accounts and Audit Service" under the control of the Directorate of Treasuries and Accounts under Finance Department. The subordinate service consists of the posts of Treasury Accountant/Auditor/Asstt. Auditor/DA/JDA/ADA in the various works Divisions under the different Departments of the Government. So, the Government of Nagaland vide notification dated 8.3.1990 constituted the "Nagaland Subordinate Finance, Accounts and Audit Service" under the control of the Directorate of Treasuries and Accounts under Finance Department. The subordinate service consists of the posts of Treasury Accountant/Auditor/Asstt. Auditor/DA/JDA/ADA in the various works Divisions under the different Departments of the Government. These posts belong to Class III (non-gazetted) and by the said notification dated 8.3.1990, according to the petitioners, the distinction between the employees in the accounts services to which the petitioners belong and the Nagaland Treasuries, Finance and Audit Service to which the private respondent belong, has been removed and both the services have been amalgamated and the petitioners claim the similar benefit from this notification dated 8.3.1990 and it would be therefore, appropriate to quote the said notification as under: GOVERNMENT OF NAGALAND FINANCE DEPARTMENT TREASURIES AND ACCOUNTS. NOTIFICATION Dated Kohima, the 8th March, 1990. No. FIN/TA/1-5/88: The Governor of Nagaland is pleased to constitute a service namely; "the Nagaland Subordinate Finance, Accounts and Audit Service" under the control of the Directorate of Treasuries and Accounts under the Finance Department with effect from the date of issue of this notification. 2. The service will include the posts as enumerated in the Schedule attached, subject to the condition that the number of posts with designation thereof, will be the same as to be incorporated in the Nagaland Subordinate Finance, Accounts and Audit Service Rules. 3. All posts is shown in the Schedule attached and included in the service now constituted including those posts in existence under the various Departments may be deemed to have been created by the competent authority. 4. Each of the Grades of posts incorporated in the Service shall form a separate cadre under the service. 5. The Director of Treasuries and Accounts, under the Administrative control of the Finance Department will be the cadre controlling authority. The posts with designation as incorporated in the Service under those orders shall not henceforth be created by any other Department. 6. The Governor of Nagaland is further pleased to order that the initial recruitment to the service shall be made from amongst the incumbents holding the posts at the time of constitution of the service, in accordance with the terms and conditions to be specified in the Nagaland Subordinate Finance, Accounts and Audit Service Rules, to be framed in due course. The Governor of Nagaland is further pleased to order that the initial recruitment to the service shall be made from amongst the incumbents holding the posts at the time of constitution of the service, in accordance with the terms and conditions to be specified in the Nagaland Subordinate Finance, Accounts and Audit Service Rules, to be framed in due course. Sd/- S.S. Ahlumalia Finance Commissioner 12. The subsequent O.M. No. FIN/TA/1-5/88 dated 10.5.1990 issued under the Financial Commissioner (Annexure-C) made the above position very much clear, which is also appropriate to quote as under: GOVERNMENT OF NAGALAND FINANCE DEPARTMENT TREASURIES AND ACCOUNTS No. FIN/TA/1-5/55 Dated Kohima, the 10th May, 1990 OFFICE MEMORANDUM Sub: Constitution of Nagaland Subordinate Finance Accounts and Audit Service The undersigned is directed to say that the Nagaland Subordinate Finance Accounts and Audit Service under the Administration control of Finance Department has been constituted vide this Department Notification of even number dated 8.3.1990. This service includes the posts of Treasury Accountant/Auditor/Asstt. Auditor/DA/JDA/ADA in the various works Divisions under the different Departments of the Government with effect from the date of issue of the above notification, all such posts in the different Departments are deemed to have been brought under the control of Finance Department. The Director of Treasuries and Accounts under the Administrative control of Finance Department will be the cadre controlling authority. The above notification was issued with the approval of the Cabinet. 2. It has now been brought to the notice of the Government that some of the Department are resorting to recruitments, transfer, promotion, etc. to these posts in contravention of the notification constituting service indicated above. The concerned Departments are, therefore, requested not to take any action for recruitment, posting, promotion, etc., which will be done henceforth by the Finance Department and Directorate Treasuries and Accounts. 3. The concerned Departments are also requested to transfer all the documents relating to creation of posts and all relevant matters in respect of the posts indicated in the Nagaland Subordinate Finance, Accounts and Audit Service, to the director of Treasuries and Accounts immediately. 4. Receipt of this memorandum may please be acknowledged. Sd/- S.S. Ahlumalia Financial Commissioner. From the above Government Notification and Office Memorandum, one thing is now abundantly clear that by constituting Nagaland Subordinate Finance, Accounts and Audit Service, the Class III (non-gazetted) posts have been amalgamated into one single service. 13. 4. Receipt of this memorandum may please be acknowledged. Sd/- S.S. Ahlumalia Financial Commissioner. From the above Government Notification and Office Memorandum, one thing is now abundantly clear that by constituting Nagaland Subordinate Finance, Accounts and Audit Service, the Class III (non-gazetted) posts have been amalgamated into one single service. 13. In terms of the aforesaid amalgamation, the Government in Finance Department vide notification dated 8.5.1992 allowed officiating promotion to as many as 33 including the petitioners from the post of Junior Divisional Accountants Subordinate Service under Finance and Accounts Service, Nagaland to the post of Junior Divisional Accounts Officer (Class II gazetted). The Government in its letter No. FIN/TA/1-3/94(Pt.) dated 6.6.2003 admitted that all the 66 posts of DAO's were upgraded to Class II gazetted rank en-masse in the year 1992 consequent upon the withdrawal of Divisional Accountant (Class III non-gazetted) by the Accountant General, Nagaland. So, the amalgamation of Accounts Service with the Treasuries, Finance and Accounts Service and promotion/upgradation to Class II gazetted rank have become an admitted position. 14. The Government, therefore, thought it desirable to give them some avenues of promotion and proposed to fill up the vacancies in the grade of Accounts Officer/Treasury Officer (Class II gazetted) by promoting officers from the grade of Sub-Treasury Officer/Junior Accounts Officer/Audit Officer and Divisional Accounts Officers equally on 50:50 basis. Based on this ratio, the Government promoted 21 officers out of which, 09 are from the petitioners' cadre of DAO's, 03 from the Audit Branch and 09 from the Nagaland Finance and Accounts Service. This has been reflected in the government, letter No. FIN/TA/1-3/94(Pt.) dated 6.6.2003, from which, the relevant portion may be quoted below: Notwithstanding all the above facts it was considered, since the DAO's have been brought under this service it was desirable to given them some avenues of promotion and accordingly pending finalization of revised service Rules, it was proposed that the vacancies in the grade of AO/TO will be filled up by promoting officers from the grade of SDO/JAO/Audit Officer and DAO's equally on 50:50 basis. And since 1999 the year when it was agreed in principle to promote these cadre of officers on 50:50 basis, so far 21 officers belonging to Accounts/Audit/DAO's have been promoted. Out of 21 officers, 9(nine) officers belong to the DAO Cadre. 3(three) in the Audit Branch and 9(nine) from the Nagaland Finance and Accounts Service. And since 1999 the year when it was agreed in principle to promote these cadre of officers on 50:50 basis, so far 21 officers belonging to Accounts/Audit/DAO's have been promoted. Out of 21 officers, 9(nine) officers belong to the DAO Cadre. 3(three) in the Audit Branch and 9(nine) from the Nagaland Finance and Accounts Service. This being the case the contention of the DAO's that they have been bypassed in promotion and that their juniors have been promoted is untenable.... 15. But in spite of all these, the further promotion of the petitioners to the post of Class I (Junior grade) has been stopped by the Government saying that the ratio provided in the aforesaid letter dated 6.6.2003 has provided no provision for promotion of DAO's as they form a separate cadre different from the cadre of STO/JAO/AO and moreover, separate seniority lists are being maintained in their respective cadres. The other ground for denying promotion to the petitioners is that the 1982 Rules do not provide promotion for the petitioners to higher post and the petitioners can claim such promotion under the new Rules of 2002, which came into effect only on 15.7.2004. Even under Rules of 2002, the petitioners are entitled to claim promotion only on and after 15.7.2004 and they cannot challenge the promotion of private respondents, which were made prior to 15.7.2004. 16. This point needs a careful examination and consideration. It is an indisputable position that the 1982 Rules do not provide promotion from the petitioners' cadre to the next higher post but at the same time, it is also an indisputable position that the petitioners were promoted from the Subordinate Service (Class III non-gazetted) to Class II junior grade by a policy decision approved by the State Cabinet as reflected from the Office Memorandum dated 10th May, 1990. The Government had a clear intention to make provision of further promotion for the petitioners' cadre post and the same has been provided in the new Rules of 2002. The said Rules of 2002, no doubt were given effect much latter i.e., from 15.7.2004 but in the interim period between the framing of 2002 Rules and giving effect to the rules from 15.7.2004, the Government proposed to provide further promotion for petitioners' cadre post to the Class I (Junior grade gazetted) on the ratio of 50:50 as reflected in the Government letter dated 6.6.2003. 17. 17. The posts of Class II (Junior grade gazetted) held by the petitioners are feeder post for promotion to Class II (senior grade gazetted). The petitioners, in terms of the aforesaid Government policy decision, made in absence of provision under the 1982 Rules, have accrued the right of being considered for promotion to the next higher post in Class II Senior Grade. The State respondents having taken the policy decision to that effect cannot deny such chance of promotion to the petitioners on the ground of non-existence of provision under the 1982 Rules because as soon as the integration of service has been given effect, the equation of post has been made and consequently the petitioners should also get the benefit of the 1982 Rules. Denial of such benefit, would amount to denial of equal opportunities to the persons holding different post in the same grade and infringement of Article 16 of the Constitution of India. 18. In the present cases, a discrimination has been made in the matter of promotion without any rational basis between the petitioners and the private respondents after integration of the posts into a one single grade/cadre carrying same scale of pay for doing the same kind of work in the same amalgamated department under the same controlling officer. The settled position is that the matters relating to employment or appointment to any officer are wide enough to include the matter of promotion and inequality of opportunity for promotion as between the citizens holding different post in the same grade may be an infringement of Article 16 of the Constitution of India. It is so held by a 5-Judge Bench of the Apex Court in the case of Kishori Mohanlal Bagshi v. Union of India as AIR 1962 SC 1139 . In a similar context, the Supreme Court in deciding the case of the State of J&K v. Triloki Nath Khosa, AIR 1974 SC 1 , once observed that discrimination is the essence of classification and thus violence to the Constitutional guarantee of equality only if it rest on an unreasonable basis and that being the position, it would be for the party assailing such classification to establish that classification is unreasonable and bears no rational nexus with its purported object. Here in the present cases, the petitioners have been able to demonstrate with sufficient materials that discrimination meted against them, as a result of which, they have been subjected to stagnation at a particular stage, i.e., Class II Junior Grade. Such stagnation, in my considered view, is unreasonable and unjust for it would create lasting bickering in the mind of the petitioners and it would not be conducive to administrative efficiency. 19. The objection to maintainability of those petitions on the ground of inordinate delay as raised by the private respondents is not found to be sound and impressive taking into consideration that the petitioners have been making consistent and persistent requests to give the benefit of integration of service and give them promotion on the basis of 1982 Rules., and the Government notification dated 8.3.1990 and the O.M. dated 10.5.1990. Moreover, temporary promotion given to the private respondents are also yet to be regularized by the Departmental Promotion Committee (DPC) in accordance with the rules and no prejudice would be caused in any manner to the private respondents if the petitioners' cases are also taken up for consideration by the DPC along with the private respondents and other similarly situated eligible persons. Alter all, the petitioners have accrued their right to be considered for promotion by the DPC and it is also a fundamental right as held by the Apex Court in the case of Delhi Jal Board v. Mahinder Singh AIR 2000 SC 2767 . To extract the relevant portion of Para 5 of the said case. 5. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration.... 20. The State respondents are, therefore, bound to hold the DPC forthwith for settlement of the entire matter of promotion in respect of the petitioners along with private respondents and other similarly situated eligible persons. The State respondents should rectify the mistake and give benefit of service to the petitioners on the basis of 1982 Rules as well as the 2002 Rules taking into account, the government notification dated 8.3.1990, government, letter dated 6.6.2003 and Office Memorandum dated 10.5.1990, which may involve giving promotion to the petitioners with retrospective effect. The State respondents should rectify the mistake and give benefit of service to the petitioners on the basis of 1982 Rules as well as the 2002 Rules taking into account, the government notification dated 8.3.1990, government, letter dated 6.6.2003 and Office Memorandum dated 10.5.1990, which may involve giving promotion to the petitioners with retrospective effect. In doing so, it may appear to disturb, the settled position in respect of the private respondents, as some of them have been prompted to the next higher post as far back as in 10.11.1999 and further promotion to the post of Dy. Director/Senior Treasury Officer/Senior Accounts Officer in the Class I Jr. grade gazetted on 1.4.2004 and latest on 12.9.2006 but all those promotions granted to the private respondents are on temporary basis subject to recommendation by the DPC. Admittedly, no DPC has been held as yet to regularize those promotions and as such, it would cause no real disturbance or destabilization of any settled position of the private respondents if the petitioners' cases are also placed before the DPC for its consideration for promotion to the related higher posts. 21. In view of the above position, both these petitions are disposed of with a direction to the respondent authorities particularly, the respondent No. 2, namely, Finance Commissioner, Government of Nagaland, Kohima to take necessary steps for holding the DPC within a period of two months from the date of receipt of this order and place the relevant records before the DPC in respect of the petitioners along with private respondents and other similarly situated eligible persons for its consideration for giving promotion to the respective related higher posts as per the provision under 1982 Rules and 2002 Rules as well as the Government notification dated 8.3.1990, Government, letter dated 6.6.2003 and also the office memorandum dated 10.5.1990. The entire process shall be completed within a period of 4(four) months from the date of receipt of this order. Petition disposed of.