Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 467 (GAU)

Imlitemjen Tsudir v. State of Nagaland

2009-07-15

MAIBAM B.K.SINGH

body2009
JUDGMENT Mutum B.K. Singh, J. 1. This petition has been filed for issuance of a writ of Certiorari for quashing the conditions and recruitment method provided in para 2 (b) of the Government's Notification bearing No. SAB-5/68/05, dated 14.12.07, recommendation of the Special Selection Committee and the promotion order of the Respondent Nos. 10 to 37 dated 2.6.08, coupled with a prayer for giving a direction to fill up all 27 upgraded posts on seniority-cum-merit basis without conducting any examination. 2. Heard Ms. Z. Zhimomi, learned Counsel appearing for the Petitioners and also heard Mrs. Y. Longkumer, learned Government Advocate for the Respondent Nos. 1 to 9 and Mr. C. T. Jamir, learned Counsel for the Respondent Nos. 10 to 17, 22, 27 to 36. None appears for the remaining Respondents. 3. Facts, avoiding unnecessary details, are that the Petitioners are Grade-IV employees and members of Nagaland Secretariat Grade-IV Employees Association. On persistent demand of the Association for providing promotional avenue to the higher grade, the Government of Nagaland upgraded 5% of the sanctioned strength of the Grade-IV posts i.e. 27 in numbers to the level of Grade-Ill post, prescribing 3 (three) different scales of pay (hereinafter referred to as Scale-A, B & C posts respectively), vide Notification bearing No. SAB-5/68/05 dated 14.12.07. As per the said Notification, Scale-A posts, 20 in numbers are to be filled up on the basis of seniority-cum-merit from amongst the Grade-IV employees. The remaining 7 (seven) posts under the Scale-B & C are to be filled up on the basis of merit-cum-seniority through a Special Selection Committee from amongst the Grade-IV employees who have put in minimum 10 years of regular service and possessed Class-VIII educational qualification. The Special Selection Committee conducted test, both written and interview on 12.3.08 without giving general notice to all the Grade-IV employees in Nagaland Civil Secretariat and recommended Respondent Nos. 10 to 36 for appointment on promotion against the upgraded posts on promotion solely on the basis of Confidential Memorandum dated 29.2.08, which was issued only to some office peons on pick and choose basis. 10 to 36 for appointment on promotion against the upgraded posts on promotion solely on the basis of Confidential Memorandum dated 29.2.08, which was issued only to some office peons on pick and choose basis. The recommended candidates were subsequently appointed/promoted against the upgraded posts vide order dated 12.6.08 issued by the Government of Nagaland, Secretariat Administrative Branch-B. The Petitioners are aggrieved by the conditions and the method of recruitment provided in para 2 (b) of the Government Notification dated 14.12.07 stating that the said conditions are quite arbitrary and unreasonable. The Special Selection Committee recommended 50% of the A-Scale posts on merit-cum-seniority basis contrary to the Government Notification dated 14.12.07 and the recommendation list was also manipulated by overwriting. Hence, the entire election process and the impugned appointment/promotion order are liable to be quashed. 4. The State Respondents as well as the private Respondents contested the petitions by filing affidavit-in-opposition denying almost all the allegations made by the Petitioners. The State Respondents however, admitted in their affidavit-in-opposition that 50% of the A-Scale posts were recommended by the Special Selection Committee on merit-cum-seniority basis but stated that the said recommendation was made under extreme necessity due to the existence of an intermediary post in between Grade-IV and Grade-III posts. The Respondents stated that Petitioner Nos. 1, 2, 3, 4, 8 & 18 appeared in the interview but failed to qualify and as such they have no right to challenge the proceeding of the Special Selection Committee. 5. Having heard the submissions advanced by the rival parties and on perusal of the writ petition as well as affidavit-in-oppositions, the examination of the said Notification dated 14.12.07 has become necessary for determination of the disputes involved in this case. The said Notification runs as follows: The Governor of Nagaland is pleased to upgrade 5% of the sanctioned strength of 533 posts (five hundred thirty three) i.e. 27 posts (twenty seven) of Grade-IV posts in the Nagaland Civil Secretariat to that of the Record Supplier, Gestetner Operator/Photostat Operator, Dispatch Rider, Messenger, Telephone Operator/Attendant and Store man in the level of Grade-III as follows: Category of Post Total No. of Posts Scale of Pay A. 1. Record Supplier 11 (eleven) Posts 2.Gestetner/Photostat Operator 6 (six) posts Rs. 2750-70-3800-75-4400/-p.m 3.Dispatch rider 3 (three) posts B. 1. Messenger 2 (two) posts 2 Telephone Operator/Attendant 2 (two) posts Rs. 3050-75-3950-80-4590/-p.m. C. 1. Record Supplier 11 (eleven) Posts 2.Gestetner/Photostat Operator 6 (six) posts Rs. 2750-70-3800-75-4400/-p.m 3.Dispatch rider 3 (three) posts B. 1. Messenger 2 (two) posts 2 Telephone Operator/Attendant 2 (two) posts Rs. 3050-75-3950-80-4590/-p.m. C. 1. Store Man 3 (three) Posts Rs. 4125-100-4725-125-6475/-p.m Total posts : 27 (twenty seven) 2. The upgrade posts shall be filled up from the existing regular Grade-IV employees in the Nagaland Civil Secretariat subject to the following: (a) Promotion/Selection as regard to Scale 'A' above, will be determined on the basis of seniority-cum-merit. (b) In respect of scale of 'B' & 'C, selection will be made from amongst the Grade-IV employees on the basis of Merit-cum-Seniority through the Special Selection Committee, who have put in minimum of 10 (ten) years of regular service, passed Class VIII and who has proficiency which will be tested through selection process. 6. A bare perusal of the above Notification clearly indicates that A-Scale posts, 20 in numbers are to be filled up on seniority-cum-merit basis and the remaining Scale-B & C posts on merit-cum-seniority through the Special Selection Committee subject to the fulfillment of the eligibility criteria mentioned in para 2 (b). The relevant minutes of the Special Selection Committee meeting held on 12.3.08 are reproduced hereinbelow: 1. A meeting of the Special Selection Committee was held on 12.3.08 under the chairperson of Smt. Khrievotuo-u, Additional Secretary, Home (SAB), to consider filing of the 5% Upgraded posts of Grade IV i.e. 27 (twenty seven) posts out of the existing total sanctioned strength of 533 Grade IV posts to that of Grade-II post under the Secretariat Administration Branch (SAB), Home Department, Nagaland Civil Secretariat. 2. The following officers attended the meeting: .... .... .... 3. The details of the 27 (twenty seven) Upgraded posts of Grade IV to that of Grade-III post as notified vide No. SAB-5/68/05 dated 14.12.2007 is as given below: .... .... .... 4. As per the Notification No. SAB-5/68/05 dt. 14.12.2007, the Committee decided to fill up the post under Category 'A' above, 50% on the basis of Seniority-cum-Merit and 50% on Merit- cum-Seniority, and the posts under Category 'B' & 'C alongwith 50% of category 'A', purely on Merit with due consideration of their Seniority, who have put in minimum of 10 (ten) years of regular service, passed Class-VIII and who has proficiency to be tested through Selection Process, both Oral and Written test. 5. 5. The Committee members on 29.2.08, examined all applications received and found 39 (thirty nine) Applicants eligible to appear both oral and Written test for the posts under category of 'B' & 'C and 50% under category 'A'. Accordingly, the SSC conducted both Oral and Written interview on 12.3.08 by allotting to each of the Committee Members, 10 (ten) marks for the written test and 10 (ten) marks for the Oral test, the aggregate of which was taken for determining the suitability of the candidates to the categorized posts. 6. For 20 (twenty Posts) under Category 'A'. the Committee decided to fill up 50% of the post basing on Seniority from amongst the existing Duftries and Jamadars, Grade IV higher scale) and 50% on Merit based on the marks obtained in the interview (oral/written) from amongst the Applicants. 7. The Special Selection Committee was constituted to test the proficiency of the eligible candidates and recommend the suitable candidates for promotion to the upgraded posts as per the guidelines given in the Notification dated 14.12.07. The Special Selection Committee has no jurisdiction to adopt any other procedure other than the procedure prescribed in the said notification while recommending candidates for promotion. The minutes of the Special Selection Committee indicates that the Committee adopted, without sanction of the Government and recommended for filling up of 50% of the A- Scale posts on merit basis. The Special Selection Committee ought to have recommended candidates for filling up of all A- Scale posts on seniority-cum-merit basis. Mrs. Y. Longkumer, learned Government Advocate, in support of the decision of the Committee, has submitted that the Committee took the decision for filling up of 50% of the A-Scale posts on coming to know the presence of an intermediary post of higher scale i.e. the posts of Jamadars and Duftries in between Grade-III and Grade-IV posts. According to the learned Counsel, the said decision was taken in order to avoid direct supersession of the incumbents in the intermediary post by general Grade-IV employees. I am not at all convinced by the above submission advanced by the learned Counsel appearing for the State Respondents as the Jamadars, Duftries, office Peons, Malis, Sweepers etc. are all Grade-IV employees whether the Jamadars and Duftries enjoy higher scale of pay than the other Grade-IV employees or not. I am not at all convinced by the above submission advanced by the learned Counsel appearing for the State Respondents as the Jamadars, Duftries, office Peons, Malis, Sweepers etc. are all Grade-IV employees whether the Jamadars and Duftries enjoy higher scale of pay than the other Grade-IV employees or not. If the Jamadars and Duftries are seniors to the other Grade-IV employees as submitted by the learned Counsel appearing for the Respondents, they may be recommended along with other senior Grade-IV employees for filling up of all 20 A-Scale posts. I do not find any justification for recommending 50% of the A-Scale posts on merit-cum-seniority basis from amongst the candidates who have applied for Scale-B & Scale-C posts. Situated thus, the recommendation of Respondent Nos. 27 to 36 by the Special Selection Committee on merit-cum-seniority basis and their subsequent promotion orders to the upgraded posts need to be interfered with by way of judicial review. 8. In so far as the eligibility criteria and method of recruitment provided in para 2 (b) of the Notification dated 14.12.07 is concerned, I do not find any unreasonableness or irrational in it. Indisputably, there is no service rules for filling up the upgraded posts of Grade IV on promotion from amongst the Grade-IV employees. It is settled proposition of law that the Government has every right/ jurisdiction to lay down certain terms and conditions or guidelines for filling up of the said upgraded posts in the absence of service rules. Thus, it is the policy matter of the Government to frame guidelines for filling up of the upgraded posts and eligibility criteria of the candidates. of course the policy matters of the Government are also subject to judicial review and such policy matters can be interfered with on the grounds of irrationality or opposed to constitutional or statutory provision or suffers from manifest arbitrariness, unreasonable or unfair or ultra vires. It appears that the Government took the decision as a matter of policy requiring some qualifications and experience for filling up of the said 7 (seven) upgraded posts for smooth and effective functioning of the system in the Nagaland Civil Secretariat. The said 7 upgraded posts also carry higher scale of pay then the remaining 20 upgraded posts and the nature of the works are also different though all the 27 upgraded posts are in the level of Grade III. The said 7 upgraded posts also carry higher scale of pay then the remaining 20 upgraded posts and the nature of the works are also different though all the 27 upgraded posts are in the level of Grade III. The learned Counsel appearing for the Petitioners however, submitted that the said conditions were imposed as suggested by the Grade-IV employees representatives in order to deprive the right and interest of other senior Grade IV employees. I do not find sufficient force to the above submission for the simple reason that it is the policy decision of the State Government to prescribe certain conditions, whether it was on the basis of the suggestions from the Grade IV Association or not. Such policy decision of the Government prescribing certain terms and conditions for filling up the said 7 upgraded posts appears to be quite reasonable and rationale. 9. As regards the point raised by the learned Counsel appearing for the Petitioners that the State Respondents never issued any general circular or notification for filling up of the upgraded posts and that the Special Selection Committee recommended the candidates on the basis of the confidential memorandum dated 29.2.08, I have carefully perused the relevant proceeding file of the Special Selection Committee and the office file as produced by the learned Government Advocate. Records reveal that on 18.1.08, a general notice was issued to all the Grade IV employees in the Nagaland Civil Secretariat indicating the eligibility criteria for filling up the upgraded 27 posts of Grade IV and inviting all eligible employees to submit original documents of educational qualification and appointment orders on or before 31.1.08. Pursuant to the said notification, many interested and eligible Grade IV employees including the Petitioner Nos. 1, 2, 3, 4, 8 & 18 submitted their original documents to the concerned authorities. On scrutiny of the applications so received, the concerned authorities shortlisted 39 Applicants and called for interview. The said Petitioners and the private Respondents were included in the list and appeared in the interview before the Special Selection Committee however, the Petitioner Nos. 1, 2, 3, 4, 8, & 18 failed to qualify in the interview. Thus, the contention of the Petitioners' learned Counsel that the State Respondents had not issued any circular for filling up of the upgraded posts holds no water. 1, 2, 3, 4, 8, & 18 failed to qualify in the interview. Thus, the contention of the Petitioners' learned Counsel that the State Respondents had not issued any circular for filling up of the upgraded posts holds no water. The office Memorandum dated 29.2.08 was issued along with an attached format to the respective Controlling officer with whom the Grade-IV employees were working for obtaining their performance and integrity report in the enclosed confidential form. It was never issued directly to any of the Grade-IV employees. In the said enclosed confidential form, the Controlling/Reporting officer were directed only to tick mark against the appropriate column only. Thus, the contention of Ms. Z. Zhimomi, counsel for the Petitioners appears to be misconceived. 10. In so far as the recommendation of Respondent Nos. 17 to 26 is concerned, I do not find any illegality and infirmity as they were recommended purely on seniority-cum-merit basis. Likewise, I see no infirmity or otherwise to the recommendation and the appointment of the candidates against the 7 (seven) upgraded B & C scale posts, as they were recommended strictly on merit-cum-seniority basis as per the relevant minutes of the Special Selection Committee meeting held on 12.3.08. So far alleged manipulation and overwriting in the selection list, I have curiously checked the marks obtained by each of the candidates both in the written and oral and of the opinion that the alleged overwriting appearing in the recommendation list were rightly done under the signature of the Chairman of the Special Selection Committee on the basis of the marks obtained by each of the candidates. 11. Mr. C. T. Jamir, learned Counsel appearing for the private Respondents submits that the Petitioner Nos. 1, 2, 3, 4, 8 & 18 appeared before the interview without any protest against the eligibility criteria specified in Government Notification dated 14.12.07 and thus, those Petitioners having failed in the interview, have no right or cannot question the said notification as well as the selection process. True, the said Petitioners, after appearing before the interview without any protest to the said notification as well as the selection process cannot turn around and question the legality of the notification and selection process. They are stopped by the principle of estoppel. 12. True, the said Petitioners, after appearing before the interview without any protest to the said notification as well as the selection process cannot turn around and question the legality of the notification and selection process. They are stopped by the principle of estoppel. 12. It appears from the Special Selection Committee proceeding that the Committee took the pain in recommending some of the Grade IV employees for promotion to the posts of Jamadars and Duftries as 10 (ten) Jamadars and Duftries were recommended for promotion to the upgraded posts. The learned Counsel appearing for the Petitioner has also challenged the said recommendation on many grounds but I am not inclined to interfere with the said recommendation and the matter is left open as the aggrieved parties by the said recommendation are not before this Court. 13. That, considering the facts of the case in its entirety and for the reasons and discussions made hereinabove, I have no alternative except to set aside/quash the recommendation of the Special Selection Committee for appointment/promotion in respect of the Respondent Nos. 27 to 36 and their subsequent appointment/promotion orders to the upgraded A-Scale posts in the level of Grade III. The State Respondents are accordingly directed to fill up the said 50% of the upgraded A-Scale posts, strictly adhering to the guidelines given in para 2 Clause (a) of the Government Notification dated 14.12.07. The entire exercise shall be carried out within a period of 4 (four) months from the date of receipt of the copy of this judgment. The Petitioners are directed to furnish a copy of this judgment to the State Respondents at the earliest for necessary compliance. 14. In the result, this writ petition is partly allowed to the extent indicated above. No order as to costs.