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2013 DIGILAW 263 (GAU)

Er. Inaho P. Awomi v. Er. Thungpemo Ezung

2013-04-24

I.A.ANSARI, P.K.MUSAHARY

body2013
ORDER Iqbal Ahmed Ansari, J. 1. Aggrieved by the judgment and order, dated 21.11.2012, passed by a learned Single Judge of this Court, in W.P. (C) No. 94(K)/2012, whereby the learned Single Judge has held the respondent No. 1 herein, namely, Er. Thungpemo, as senior to the appellant herein in the post of Project Officer and has, therefore, set aside and quashed the Notification, dated 18.04.2012, which formed the subject-matter of controversy in the writ petition, made under Article 226 of the Constitution of India, this appeal has been preferred. We have heard Mr. S. Dutta, learned counsel for the appellant (who was private respondent No. 5 in the writ petition), and Mr. P. Khatoniar, learned counsel, appearing for respondent No. 1 in the appeal, who was the writ petitioner in the writ petition. None has appeared on behalf of the State respondents. 2. The material facts, leading to this appeal, may, in a nutshell, be set out as under: (i) The respondent No. 1 herein (who is hereinafter referred to as the 'private respondent') holds a degree in civil engineering. On being selected by Nagaland Public Service Commission (in short, 'NPSC'), the private respondent was appointed, vide Notification, dated 15.12.2000, to the post of Junior Engineer (Civil), Class-II (Gazetted) under the Department of Power, Government of Nagaland. Later on, an order was issued, on 13.07.2004, appointing the private respondent, on deputation, in the post of Project Officer, Non Conventional Energy (in short, 'NCE'), under the Rural Development Department, Government of Nagaland, for a period of one year. The deputation of the respondent No. 1 was, however, kept on being extended from time to time and, by Notification, dated 14.09.2011, he, along with two others, was, eventually, absorbed under the NRE department, w.e.f. 26.05.2011, in the regularly sanctioned post of Project Officer. (ii) Initially, the administration of the New and Renewable Energy Department (in short, NRE department') was under the Rural Development Department; but, in the month of July, 2009, the Directorate of Non Conventional Energy was created under the Rural Development Department. (iii) As far the appellant herein is concerned, he was appointed as a Project Officer, on contract basis, under a Centrally Sponsored Scheme of the Rural Development Department, Government of Nagaland. (iii) As far the appellant herein is concerned, he was appointed as a Project Officer, on contract basis, under a Centrally Sponsored Scheme of the Rural Development Department, Government of Nagaland. From time to time, the contractual appointment of the appellant herein was renewed and, lastly, by Notification, dated 22.11.2011, the service of the present appellant, whose original appointment was contractual in nature, came to be regularised as Project Officer, w.e.f. 26.05.2011, under the Department of NRE, Government of Nagaland. 3. We may briefly pause here to point out that though absorbed/regularized by two different Notifications, namely, Notification dated 14.09.2011, and Notification dated 22.11.2011, which we have mentioned above, the fact of the matter remains that both, the appellant as well as the private respondent, stood permanently absorbed and regularized in the posts of Project Officer under the NRE Department, Government of Nagaland, w.e.f. the same date, i.e., 26.05.2011. Neither the correctness nor the legality of the absorption of the private respondent in the deputation post of Project Officer and/or regularization of the present appellant in the regularly sanctioned post of Project Officer was ever disputed or questioned. 4. One has to, therefore, proceed on the premises that both, the appellant as well as the private respondent, came to be regularly appointed, as Project Officers, under the NRE Department, w.e.f. 26.05.2011. 5. The question, however, which arose, in the writ petition, was as to who, between the two, namely, the appellant herein and the private respondent, was senior in the post of Project Officer inasmuch as a Notification, dated 18.04.2012, was issued by the NRE Department granting officiating promotion to the present appellant as Assistant Director subject to regularization by the Departmental Promotion Committee under the NRE Department, Government of Nagaland. It was this Notification, dated 18.04.2012, which came to be challenged by the private respondent herein by way of writ petition on the ground that since his selection to the post of Junior Engineer was regular in nature, whereas the present appellant's initial appointment was contractual in nature, he (private respondent) ought to have been treated as senior to the appellant. It is this contention, which has prevailed upon the learned Single Judge and having, thus, concluded that the private respondent is senior to the present appellant, the impugned Notification, dated 18.04.2012, has been set aside and quashed. 6. It is this contention, which has prevailed upon the learned Single Judge and having, thus, concluded that the private respondent is senior to the present appellant, the impugned Notification, dated 18.04.2012, has been set aside and quashed. 6. While considering the present appeal, what needs to be borne in mind, as already indicated above, is that neither the legality and correctness of the absorption of the private respondent, on regular basis, in the post of Project Officer, nor the regularization of the service of the present appellant, in the post of Project Officer, was ever questioned by any of the parties to the present appeal. We have to, therefore, proceed, if we may reiterate, on the basis of the fact that the appellant as well as the private respondent have been regularly appointed, in the post of Project Officer, w.e.f. 26.05.2011. Thus, the date of absorption, on deputation, of the private respondent and the date of regularization of the appellant being one and the same, who, between the two of them, is senior was the question, which arose in the writ petition and which has also been raised in the present appeal. 7. While considering the question, posed above, it needs to be noted that, according to the Office Memorandum, dated 12.08.1975, issued by the Government of Nagaland, Home Department, Administrative Reforms (O & M) Branch, seniority of a deputationist shall be counted from the date on which the decision is taken to absorb the deputationist in the deputation post meaning thereby that in terms of the Office Memorandum, dated 12.08.1975, aforementioned, seniority of a deputationist shall be counted from the date the Government decides to absorb the deputationist in the deputation post. Consequently, in the light of the Office Memorandum, dated 12.08.1975, the previous service of a deputationist shall not be counted, while fixing the seniority of such a deputationist. Consequently, in the light of the Office Memorandum, dated 12.08.1975, the previous service of a deputationist shall not be counted, while fixing the seniority of such a deputationist. This decision of the Government was, however, partially modified by subsequent Office Memorandum, dated 27.03.2001, issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training, adopted by the Government of Nagaland, to the effect that though, ordinarily, the seniority of a deputationist shall be counted from the date of taking of the decision of his absorption in the deputation post, his past services, if any, rendered in the same or equivalent grade, on regularly basis, in his parent department, shall be taken into account, while fixing his/her seniority Yet another Office Memorandum was issued, on 21.07.2004, by the Government of Nagaland, Personnel and Administrative Reforms Department (Administrative Reforms Branch), laying down that the seniority of a person, who is absorbed in a deputation post, shall be counted from the date of such absorption only. This Office Memorandum, dated 21.07.2004, makes it explicitly clear that the seniority of a deputationist, in a deputation post, shall be counted from the date of his/her absorption only (i.e., from the date of Cabinet approval). 8. What logically follows from the above discussion is that the private respondent was, initially, appointed as a Junior Engineer in the Department of Power, Government of Nagaland, and, then, he was taken, on deputation, to the post of Project Officer in the Rural Development Department, he was, admittedly, brought, on deputation, to a higher post, namely, the post of Project Officer, from the lower post, namely, the post of Junior Engineer. 9. Thus, on absorption of the private respondent, in the deputation post of Project Officer, w.e.f. 26.05.2011, his seniority was required to be counted w.e.f. 26.05.2011. 10. Similarly, as far as the present appellant is concerned, his seniority was also to be counted, on regularization of his service, in the post of Project Officer, w.e.f. 26.05.2011. The reference, therefore, made, in this regard, by Mr. S. Dutta, to the case of Director, Central Bureau of Investigation and another v. D.P. Singh, reported in (2010) 1 SCC 647 , is not incorrect inasmuch as it has been laid down therein that seniority of a deputationist will be counted from the date of his absorption. The reference, therefore, made, in this regard, by Mr. S. Dutta, to the case of Director, Central Bureau of Investigation and another v. D.P. Singh, reported in (2010) 1 SCC 647 , is not incorrect inasmuch as it has been laid down therein that seniority of a deputationist will be counted from the date of his absorption. To the same effect is the decision of this Court, in Fineson Pojar and Ors. v. State of Nagaland and Ors., reported in 2010 (1) GLT 338, which was rendered by one of us (Hon'ble P.K. Musahary, J). 11. In short, what emerges from the above discussion is that the seniority of the appellant as well as the private respondent were to be counted from the date of their absorption/regularization w.e.f. 26.05.2011. 12. What is, now, imperative to note is that the appellant is, admittedly, older than the private respondent and this aspect was pointed out during the course of hearing of the writ petition and has been taken note of by the learned Single Judge. However, what appears to have escaped the attention of the learned Single Judge is that when two persons are appointed, on regular basis, by way of absorption or otherwise, in a given post, with effect from the same date, the older between the two would be treated as senior to the other. The reference, in this regard, made to the case of D.P. Das v. Union of India and others, reported in (2011) 8 SCC 115 , is wholly correct inasmuch as the Supreme Court has clearly held, in D.P. Das (supra), that as the seniority of the officers had been recommended on the same date, their respective seniority must be decided by their respective age. 13. Situated thus, there can be no escape from the conclusion that as far as the present appellant is concerned, he is, and shall be, regarded, for all purposes, senior to the private respondent in the post of Project Officer and since he is senior, there was, ordinarily, no impediment in giving him officiating promotion to the post of Assistant Director. 14. What has, however, been brought to our notice by Mr. 14. What has, however, been brought to our notice by Mr. Khatoniar, learned counsel, is that the State respondents, in their affidavit-in-opposition, while justifying the officiating promotion of the appellant, have stated, at paragraph 12, that the State respondents had taken conscious decision to grant officiating promotion to the present appellant not only on the basis of the fact that the appellant was senior to the private respondent, but also on the basis of merit. 15. Taking a cue from the above averments made in the affidavit-in-opposition of the State respondents, Mr. Khatoniar, learned counsel, submits that the comparative merit of the present appellant and the private respondent was never decided and, hence, the stand of the Government that the appellant has been granted officiating promotion to the post of Assistant Director not merely because of the fact that he is senior to the private respondent, but also because of his merit cannot be sustained and that the private respondent's case ought to have been considered. Though, at the first blush, the argument of Mr. Khatoniar appears to be attractive, what needs to be borne in mind is that there is, admittedly, no Rule or Executive instructions or Departmental Policy or Guidelines for promotion from the post of Project Officer to the post of Assistant Director and, in the absence of any such policy decision, promotion shall, ordinarily, be given on the basis of seniority unless the State Government lays down the criteria for promotion. 16. While granting officiating promotion to the appellant, the Government was required to promote him on the basis of seniority provided that he was not found unfit. The stand of the State respondents shows that the officiating promotion to the appellant has been given not merely on the basis of seniority, but also on the basis of suitability. The moment, therefore, the suitability of an officer is required to be considered, the question of merit will invariably arise. To some extent, therefore, the grievance of the private respondent cannot be said to be wholly untenable in law. The moment, therefore, the suitability of an officer is required to be considered, the question of merit will invariably arise. To some extent, therefore, the grievance of the private respondent cannot be said to be wholly untenable in law. The appropriate course of action, in the absence of any further guideline(s), which may be issued by the State respondents, the promotion to the post of Assistant Director, from the post of Project Officer, shall be on the basis of seniority-cum-suitability and if the appellant is found suitable, he needs to be promoted and the case of the private respondent can be considered for promotion if, and only if, the appellant, though senior, is found unsuitable for promotion to the post of Assistant Director. 17. Because of the fact that the appellant is senior to the private respondent and the State respondents have found him suitable, his officiating promotion, granted by Notification, dated 18.04.2012, ought not to have been interfered within the writ petition. 18. Because of what have been discussed and pointed out above, we set aside the decision reached in the writ petition, whereby the impugned Notification, dated 18.04.2012, has been interfered with. We accordingly restore the Notification, dated 18.04.2012, aforementioned. 19. Considering, however, the fact that the officiating promotion to the present appellant was granted as far back as on 18.04.2012 and more than a period of one year has passed, the Government has to take a decision as to whether it shall fill up the post of Assistant Director or not and, if it decides to fill up the post of Assistant Director by way of promotion, then, the case of the appellant for regular promotion to the post of Assistant Director shall be considered on the basis of seniority-cum-suitability unless any guideline is, otherwise, issued and/or Rule is, otherwise, framed and if the appellant is found not suitable despite his seniority over the private respondent, then and then only the case of the private respondent shall be considered for promotion to the post of Assistant Director. The whole exercise, so directed, shall be completed within a period of three months from the date of receipt of a copy of this order by respondent No. 2 herein, namely, Chief Secretary to the Government of Nagaland, Kohima. 20. With the above observations and directions, this appeal stands disposed of. No order as to costs.