Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 544 (GAU)

Er. Hotokhu Achumi v. State of Nagaland

2011-06-23

BIPLAB KUMAR SHARMA

body2011
JUDGMENT B.K. Sharma, J. 1. The 18 (eighteen) Petitioners in the rank of Assistant Engineer/SDO in the department of Works and Housing, Govt. of Nagaland, are aggrieved by the minutes of the Selection Committee dated 20.11.2007, by which recommendations were made for regularisation of officiating promotion of the 9(nine) incumbents indicated therein. The Petitioners are concerned with the recommendation made in favour of the Respondent NO. 5 for regularisation of his officiating promotion in the rank of Executive Engineer. For a ready reference, the minutes of the meeting held on 20.11.2007 is reproduced below: Minute of the meeting of the departmental promotion committee of works % housing department. A meeting of the DPC to consider the case of regularisation and promotion of officers of the Deptt. of Works & Housing was held on 20.11.07 at 1500 hrs. in the Office Chamber of the Chairman, NPSC. The following were present: 1. Dr. V. Hokuto Zhimomi, Chairman, NPSC - Chairman. 2. Sri Kevisiezoiie Souku, Member, NPSC - Member. 3. Dr. K. Chuba Ao, Secretary (Fisheries)(representing Chief Secretary) - Member. 4. Shri H. Lungalang, Under Secy, P&AR - Member. 5. Shri K.L. Yanger, Jt. Secy, (W&H) - Member. 6. Er. N. Chielie, E-in-Chief, NPWD Member Secy. The DPC after thorough discussion and examination of all the available relevant documents/records have approved and recommended for regularisation of officiating promotions of the following 9(nine) Executive Engineers out of 13 (thirteen) Executive Engineers on officiating promotion with effect from the date of the sitting of the DPC i.e. 20.11.2007. Name 1. Er. Thungdemo Patton. 2. Er. Neilabizo Angami. 3. Er. P. Imrongkumden Ao. 4. Er. C.K. Chang. 5. Er. N. Sanchio Lotha. 6. Er. Vekho Swuro. 7. Er. K. Pieto Shohe. 8. Er. Hotokhu Achumi. 9. Er. I. Asangba Ao. The cases of other following 4 (four) EEs on officiating promotions could not be considered for regularisation. 1. Er. Khutovi Sema due to pending Court cases over the seniority. 2. Er. Hokato Sema due to pending Court case over the seniority. 3. Er. Toba Angami due to non finalisation of seniority dispute. 4. Er. C. Kelhoupu Rio for want of further clarification in respect of his seniority. 1. Er. Khutovi Sema due to pending Court cases over the seniority. 2. Er. Hokato Sema due to pending Court case over the seniority. 3. Er. Toba Angami due to non finalisation of seniority dispute. 4. Er. C. Kelhoupu Rio for want of further clarification in respect of his seniority. The DPC further advised the department to bring up proper final seniority list from the level of Engineer-in-Chief to the level of Junior Engineers to consider the remaining cases of regularisation of officiating promotions at various levels in the next DPC meeting. Sd/- (Dr. V. Hokuto Zhimomi) Chairman Sd/- Shri Kevisiezolie Shohu) Member Sd/- (Dr. K. Chuba Ao) Member 2. According to the Petitioners they being senior in service, could not have been ignored for promotion to the post of Executive Engineer. Referring to the Nagaland Engineering Service Rules, 1997, it is the case of the Petitioners that there has been wholesome violation of the provisions of the said rules governing promotion to the post of Executive Engineer from Assistant Engineer/SDO. 3. The Petitioners are the direct recruits to the post of Assistant Engineer/SDO. They were so appointed pursuant to their selection by the NPSC in the year 1995-96. On the other hand, the Respondent No. 5 was first appointed as Computer/Draftsman Grade-I in the year 1985 and his service was regularised on 21.7.1986. Upon such regularisation, he was appointed as Overseer Grade-I (Civil). Be it stated here that the Respondent No. 5 at the relevant time was only a diploma holder unlike the Petitioners who are Degree holder. Consequent upon granting of study leave, the Respondent No. 5 also obtained degree in Civil Engineering and consequently he was given officiating promotion to the post of Assistant Engineer by an order dated 1.4.1997. Thereafter, his service was regularised as Assistant Engineer through the DPC by order dated 19.2.2002 w.e.f. 1.4.1997. As to whether such regularisation of service as Assistant Engineer w.e.f. 1.4.97 will also confer seniority from the said date or such regularisation is for the purpose of increment, benefit of pension etc., is not the issue involved in this proceeding. His service having been regularised w.e.f. 1.4.97, admittedly he is junior to the Petitioners. 4. Mr. As to whether such regularisation of service as Assistant Engineer w.e.f. 1.4.97 will also confer seniority from the said date or such regularisation is for the purpose of increment, benefit of pension etc., is not the issue involved in this proceeding. His service having been regularised w.e.f. 1.4.97, admittedly he is junior to the Petitioners. 4. Mr. Taka Masa, learned Counsel for the Petitioners submits that the DPC instead of considering the case for promotion of all eligible candidates, considered the case of the Respondent No. 5 for regularisation of his officiating promotion as Executive Engineer, which is contrary to the relevant rules. Referring to the earlier judgment of this Court dated 4.4.2005 in WP(C) No. 156(K)/2004, he submits that in the said judgement, there being clear cut direction to hold DPC within 4 (four) months, the authority could not have convened the DPC only to regularise the officiating promotions. He submits that the DPC ought to have considered the cases of all the eligible candidates instead of confining the same only to the incumbents who were officiating as Executive Engineer. 5. Placing reliance on the decisions of the Apex Court as reported in (2004) 3 SCC 734 Chandravathi P.K. and Ors. v. C.K. Saji and Ors; (2007) 6 SCC 704 Union of India and Ors. v. Sangram Keshari Nayak and (2000) 7 SCC 67 Sarabjit Singh v. Ex-Major B.D. Gupta and Ors. he submits that there should have been a meaningful consideration on the part of the DPC instead of adopting a mechanical approach only to the extent of regularisation of the officiating promotion. 6. Mr. N. Mozhui, learned Counsel representing the NPSC has produced the letter dated 5.10.2007, addressed to the NPSC by the Deputy Secretary to the Govt. of Nagaland in the Works and Housing Department, forwarding therewith a list of officers and staff stated to be in the promotion zone in order of seniority. In the letter, the number of vacancy was indicated as 13 (thirteen). Interestingly, against those 13 vacancies, the remark was "regularisation of EEs". In the purported seniority list, altogether 13 EEs were named, who were holding the promotional post on officiating basis. The list contained as many as 69 (sixty nine) names. 7. In the letter, the number of vacancy was indicated as 13 (thirteen). Interestingly, against those 13 vacancies, the remark was "regularisation of EEs". In the purported seniority list, altogether 13 EEs were named, who were holding the promotional post on officiating basis. The list contained as many as 69 (sixty nine) names. 7. From the above letter and the list and the indication "regularisation of EEs", what has transpired is that the authority in the Works and Housing Department forwarded the list and in the top of it indicated the 13 incumbents, who were already officiating as EEs. Thus, the whole exercise was for regularisation of the officiating promotions without adhering to the true spirit and requirement of the statutory rules, about which discussions will be made little later. 8. Mr. L.S. Jamir, learned Addl. Advocate General, Kohima, in his usual fairness has submitted that if anything wrong was committed towards consideration of the cases of the eligible candidates, same will have to be remedied by holding a fresh DPC strictly by following the statutory rules. 9. Mr. Apok Pongener, learned Counsel representing the Respondent No. 5 submits that although the Respondent No. 5 may be junior to the Petitioners in the rank of Asstt. Engineer but considering his past services in the grade of Overseer, he was given officiating promotion to which there was no objection. He submits that there was nothing wrong in regularisation of such officiating promotion. Another submission made by him is if for any reason the minutes of the DPC dated 20.11.2007 is interfered with, the officiating promotion granted to the Respondent No. 5 should not be interfered with. 10. I have considered the rival submissions made by the learned Counsel for the parties and the entire materials on record. 11. Rule 8(b)(ii) of the Nagaland Engineering Service Rules, 1997 (here-in-after referred to as the Rules) provides that 75% of the total strength of EEs shall be filled up by promotion from amongst the serving degree holder having 7(seven) years of continuous service in the next lower grade and 25% of the total strength of EEs will be filled up by promotion from amongst the serving diploma holders with minimum of 9(nine) years of continuous service in the lower grade. Rule 17(2) provides that whenever any vacancy/vacancies arise(s) in the service to be filled in by promotion, the HOD shall furnish the following particulars together with his comments, if any, to the Secretary in the given proforma prescribed by the Commission, for the purpose: (i) Final upto date and undisputed seniority list of the cadre from which promotion is to be given. The list should contain at least twice as many names as the number of existing vacancy/vacancies available. (ii) Dossiers of the persons concerned. (iii) Annual Confidential Reports at least for the last 3 (three) years duly reviewed and accepted by the concerned authorities. (iv) Recommendation of the Head of the Department including Integrity Certificates. With clearance from the Vigilance Commissioner separately in respect of each eligible candidates. 12. Rule 17(3) provides as follows: On receipt of the particulars under Sub-rule (2), the Government shall furnish such particulars with comments, if any indicating the number of vacancy/vacancies and other relevant matters as may be necessary to the Commission. The Committee when called upon, the Commission shall meet and prepare a list of Officer (s) equal to the number of vacancy/vacancies in order of preference, to be filled by promotion. The selection shall be based on merit and suitability with due regard to seniority. Whenever a junior Officer is selected in preference to a senior one, the Committee shall record in writing the reason (s) of such supersession. The select list shall be valid for one year from the date of its approval by the Commission under Sub-rule (5) of this rule. All vacancies arising during the period and intended to be filled by promotion shall be filled from that list. 13. On perusal of the above, what is seen is that the DPC is required to consider the incumbents on the basis of the upto date and undisputable seniority list, but in the instant case, as is evident from the minutes of the DPC impugned in this proceeding, the DPC said to have considered the cases of the incumbents though there was no proper and final seniority list. This is precisely the reason as to why the DPC had to advise the Department to draw a proper final seniority list to consider the remaining cases of regularisation of officiating promotions at various level in the next DPC meeting. This is precisely the reason as to why the DPC had to advise the Department to draw a proper final seniority list to consider the remaining cases of regularisation of officiating promotions at various level in the next DPC meeting. Apart from the fact that there was no properly drawn final seniority list, what has appeared is that the DPC was convened with the sole purpose of regularisation of officiating promotion and not the regular promotion to be effected on the basis of the criteria laid down in Rule 17 of the Rules, referred to above. 14. Officiating promotions may be effected for various reasons. Normally, in case of officiating promotion also, the seniority positions is to be maintained. However, in the instant case, it appears that although the Respondent No. 5 was by far junior to the Petitioners but he was given officiating promotion and eventually his such promotion was regularised by the DPC vide its impugned minutes of the meeting held on 20.11.2007. 15. Another aspect of the matter is that as per Rule 17(3), there is requirement of recording reasons whenever a junior officer is selected in preference to a senior one. The promotion criteria is merit and suitability with due regard to seniority. Thus, seniority has a definite role to play. Be that as it may, the requirement being to record the reasons for supersession of a senior by his junior, it was incumbent on the part of the DPC to record such reason. However, on perusal of the minutes of the meeting held on 20.11.2007, I do not find any reason recorded in the said minutes, by which the Respondent No. 5 superseded his seniors. 16. At this stage, it will be pertinent to record the submissions made by Mr. Apok Pongener, learned Counsel appearing for the Respondent No. 5 that if any adverse comment is made in respect of the minutes of the Selection Committee held on 20.11.2007, same will effect not only the Respondent No. 5 but all the other incumbents numbering 8(eight), who are not party Respondents in this proceeding. 17. It has been brought to the notice of this Court that out of the 9 (nine) incumbents, whose services have been regularised, 4 (four) are diploma holders and 5 (five) are degree holders. Mr. 17. It has been brought to the notice of this Court that out of the 9 (nine) incumbents, whose services have been regularised, 4 (four) are diploma holders and 5 (five) are degree holders. Mr. Taka Masa, learned Counsel for the Petitioner submits that so far as the diploma holders are concerned, the Petitioners cannot have any grievance against them because they form a different class unlike the degree holders. As regards the degree holders, he submits that the remaining 4 (four) degree holders mentioned in the impugned minutes of the DPC, they are all senior to the Petitioners, they cannot have any grievance against them. 18. It will be pertinent to mention there that the name of the Petitioner No. 1 finds place in the impugned minutes of the DPC at Sl. No. 8. Thus, the plea of the Petitioners is that so far as the diploma holders are concerned, they form a class apart from that of the degree holders and thus Petitioners cannot have any grievance against the said diploma holders. As regards the degree holders, the stand of the Petitioners is that the persons who have been favoured with the regularisation of their officiating promotion, being all seniors, the Petitioners cannot have any grievance against them. 19. In Chandravathi (supra), the Apex Court dealing with the case of degree holder and diploma holder Engineers, observed that once a diploma holder opts to join the stream of the degree holders, he would be placed at the bottom of the seniority list. However, this aspect of the matter need not detain us in view of the fact that even otherwise also the Respondent No. 5 will rank junior to the Petitioners in view of his appointment in 1997 as Asstt. Engineer/SDO as against appointment of the Petitioners as such in 1995-96. 20. The case of Sangram Keshari Nayak (supra), has been pressed into service so as to emphasise the need for meaningful consideration by the DPC. In the said decision, it has been held that the right to be considered for promotion is a fundamental right and it involves effective, purposeful and meaningful consideration. Promotion can be denied only on the basis of valid rules. 21. In the said decision, it has been held that the right to be considered for promotion is a fundamental right and it involves effective, purposeful and meaningful consideration. Promotion can be denied only on the basis of valid rules. 21. In Sarabjit Singh (Supra), the Apex Court again emphasised the need for DPC to have meaningful consideration for promotion, held that the fundamental right to be considered for promotion, is available to a candidate only if he falls within the prescribed zone of consideration. 22. In the instant case, 13 (thirteen) vacancies were there and applying the ratio of 1 : 2 as per rule, altogether 26 candidates in the rank of AE/SDO were to be considered. However, no such consideration was made and the DPC only considered the cases of officiating promotees for regularisation. 23. In the rules, there is no provision for officiating promotion. However, if in the exigencies of service, such officiating promotion had to be effected, but for the purpose of regular promotion, the authority ought to have considered the same in strict compliance of the provisions of the rules. However, the DPC only considered the cases of the incumbents who were on officiating promotion for regularisation. The minutes of the DPC absolutely do not disclose anything as to how the cases of the incumbents were considered for regularisation. It gives an impression that it was an empty-formality for regularisation of the officiating promotion. The DPC also did not consider as to whether the Respondent No. 5 was within the zone of consideration for such promotion. 24. Pursuant to the impugned minutes of the DPC, the Respondent No. 5 has also been promoted on regular basis vide order dated 28.11.2007. While it is submitted by Mr. Taka Masa, learned Counsel for the Petitioners that consequent upon setting aside the minutes of the DPC dated 20.11.2007, as a natural consequence, the order of regular promotion of the Respondent No. 5 shall cease to have its effect, Mr. Apok Pongener, learned Counsel for the Respondent No. 5 submits that even if the regular promotion of the Respondent No. 5 is set aside but his officiating promotion w.e.f. 2006 may be allowed to continue till such time a regular DPC is held in compliance of the provisions of the Rules. 25. Apok Pongener, learned Counsel for the Respondent No. 5 submits that even if the regular promotion of the Respondent No. 5 is set aside but his officiating promotion w.e.f. 2006 may be allowed to continue till such time a regular DPC is held in compliance of the provisions of the Rules. 25. Without expressing any opinion on the above aspect of the matter and having regard to the prayer made in the writ Petition and for the reasons recorded above, I am inclined to set aside and quash the minutes of the DPC dated 20.11.2007, so far as the same relates to the Respondent No. 5. As a result thereof, the consequential order/action will also cease to have its effect. 26. Now, the Departmental Authorities will convene a DPC to consider the cases of the incumbents who are within the zone of consideration for promotion to the post of Executive Engineer in compliance with the provisions of the Rules. Since, already a considerable time has elapsed ever since the direction was issued in the aforesaid judgment and order dated 4.4.2005 passed in WP(C) 156(K)/2004, direction is hereby issued to convene a regular DPC, as expeditiously as possible but at any rate not later then 31.8.2011. 27. With the above directions and observations, the writ Petition stands disposed of, without however, any order as to costs.