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2014 DIGILAW 437 (GAU)

S. HOVITO CHOPHY v. STATE OF NAGALAND

2014-04-10

N.CHAUDHURY

body2014
JUDGMENT AND ORDER (ORAL) The writ petitioner, who was initially appointed on ad-hoc basis as Overseer Grade-I along with respondents No. 5 to 20 and was subsequently regularized by regular process of selection undertaken by the Nagaland Public Service Commission, has approached this court challenging officiating promotions granted to respondents No. 5 to 20 on various dates during the period from 2002-2013 superseding the petitioner. 2] The petitioner is a Diploma Engineer in Civil Engineering. He was appointed as Overseer Grade-I on 16.07.1994 on ad-hoc basis. Subsequently pursuant to advertisement issued by the Nagaland Public Service Commission he appeared before the authority and thereupon he was selected. On the basis of such selection, the service of the petitioner was regularized vide Office Order dated 23.03.1996 along with 175 others. His regularization was made with effect from his initial date of joining as was done to other similarly situated candidates. The Overseer Grade-I staffs working under P.W.D. were re-designated as Junior Engineers by Letter dated 13.03.1997. Thereafter the Government issued an Office Memorandum on 24.01.2012 for the first time, declaring tentative seniority list of Junior Engineers under N.P.W.D. as on 01.09.2011 and in that list name of the petitioner appeared at serial No. 131. The name of respondent No. 5 did not figure in the said list as he was not working as Junior Engineer as on the cut-off date of 01.09.2011. Respondents No. 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 are all juniors to the petitioner and their names were shown at serial Nos. 143, 164, 201, 141, 145, 136, 139, 151, 157, 161, 162, 174, 176, 177 and 189 respectively as their dates of initial appointment fell much later than that of the petitioner. It is also stated in the writ petition that respondent No. 5 entered service as Junior Engineer after the petitioner. Although respondent No. 5 has been described as junior to the petitioner, but the writ petitioner has failed to furnish the date of initial appointment of the said respondent No. 5 and thus claim of the petitioner of being senior to the respondent No. 5 remains unsubstantiated. 3] It is the further case of the petitioner that while all the aforesaid private respondents are junior to him but they have been given officiating promotion to the post of S.D.O./Assistant Engineer on various dates. 3] It is the further case of the petitioner that while all the aforesaid private respondents are junior to him but they have been given officiating promotion to the post of S.D.O./Assistant Engineer on various dates. The said promotion orders are available from Annexure-E to Annexure-G6 to the writ petition. By furnishing the officiating promotion orders as annexures to the writ petition, the petitioner has contended that in making the aforesaid officiating promotions the official respondents No. 1 to 4 did not consider the entitlement of the petitioner despite repeated representations. Except respondent No. 6 no other respondent has put up appearance in this writ petition despite service of notice. Affidavit-in-opposition has been filed on behalf of respondents No. 1 to 4. Respondent No. 6 has also filed an affidavit-in-opposition. In the affidavit-in-opposition of the respondent No. 6 stand has been taken that being aggrieved at his supersession by juniors he had earlier approached this court vide WP(C) No. 62(K)/2009. In that writ petition the petitioner challenged officiating promotions of as many as 5 (five) private respondents. Out of the aforesaid 5 (five) private respondents it is stated at the Bar that respondent No. 3 has expired and the remaining 4 (four) private respondents, namely, respondents No. 5, 6 and 7 of WP(C) No. 62(K)/2009 have been impleaded as respondents in the present writ petition as well. 4] The aforesaid writ petition came up for decision on 26.03.2011 whereupon this court after hearing learned counsel for the parties allowed the writ petition directing the official respondents to consider the case of the petitioner at par with the private respondents and to grant officiating promotion applying the same yardstick and parameter as were applied to them. It was also directed that he should be placed properly at par with his juniors from the date of supersession in the matter of promotion. Of course, it was clarified in the matter that the petitioner would not have entitlement of back-wages in case promotion is given to him notionally to bring him at par with the private respondents. 5] I have heard Ms. Z Zhimomi, learned counsel for the petitioner, Ms. Luci for the respondents No. 1 to 4 and Mr. I Longjem for respondent No. 6. 6] Mr. 5] I have heard Ms. Z Zhimomi, learned counsel for the petitioner, Ms. Luci for the respondents No. 1 to 4 and Mr. I Longjem for respondent No. 6. 6] Mr. Longjem submits that even after passing of judgment dated 20.06.2011 by this court the Government did not consider the case of the petitioner for which he had to file a contempt petition before this court vide No. CORGL(Contempt) PETN. No. 29(K)/2011. The said contempt petition came up for consideration before this court on 24.06.2013 on which date the learned Addl. Advocate General assured the court that the department had already decided to restore the seniority of the contempt petitioner and till such time the case of private respondents would not be taken up for D.P.C. for regularization. On such undertaking being made, the contempt application was closed with the observation that the Government would give benefit of promotion to eligible candidates strictly following the rules without any discrimination by way of regularizing promotion of the persons who are already promoted with effect from retrospective dates on which they had to be given promotion. It is stated at the Bar that in the mean time the respondent No. 6 was given promotion on 14.01.2013 7] Ms. Z Zhimomi, learned counsel for the petitioner submits that it is apparent on the face of record that the petitioner is senior to all the respondents but yet, in gross violation of Article 16 of the Constitution of India, the case of the petitioner was not considered for promotion while his juniors were favoured with officiating promotions. Ms. Zhimomi submits that as per the current practice of Government of Nagaland, officiating promotion is granted to Junior Engineer and thereafter he is favoured with successive officiating promotions till he retires. In that view of the matter, according to Ms. Z Zhimomi, rampant discrimination has been meted out in this present case by granting officiating promotions at random by pick and choose policy. 8] The services of engineers under the Government of Nagaland was initially governed by Nagaland Engineering Services (Class-I & II) Rules, 1997 which came into effect on 01.01.1997. In that view of the matter, according to Ms. Z Zhimomi, rampant discrimination has been meted out in this present case by granting officiating promotions at random by pick and choose policy. 8] The services of engineers under the Government of Nagaland was initially governed by Nagaland Engineering Services (Class-I & II) Rules, 1997 which came into effect on 01.01.1997. Rule 8(iii) of the Rules provides that 40% of total vacant posts of Assistant Engineers at the time of requisition would be filled up from the panel of serving Junior Engineers by promotion from the candidates possessing degree and diploma from recognized institutes and having completed 8 (eight) years of service as Junior Engineer. Rule 17(3) further provides that the Departmental Promotion Committee shall make selection based on merit and suitability with due regard to seniority. In terms of the Rule 8(iii) the petitioner became eligible for being considered for promotion in the year 2002 after he had put up 8 years of service. But his case was never considered for promotion and representations submitted by him went on collecting dust while private respondents one after another, though juniors to him, were promoted to the rank of S.D.O., albeit, on officiating basis. Naturally no D.P.C. was held and no selection was made and pick and choose policy was adopted by the authority for giving officiating promotions to the private respondents. When the practice was being perpetrated in the manner then the aforesaid Nagaland Engineering Services (Class I & II) Rules, 1997 was repealed on 13.12.2012 and a fresh set of rules known as the Nagaland Engineering Services (Group A and Group B) Rules, 2012 has been amalgated. However, the promotion quota and yardstick for promotion from the rank of Junior Engineer to that of Assistant Engineer/S.D.O. remained the same. Under schedule VII of the aforesaid rules, it has been mentioned at Clause-(6) that 40% of posts shall be filled up by promotion from amongst the degree/diploma holders in the concerned engineering discipline and who have completed a minimum of 7 (seven) years of continuous service in immediate lower grade in case of diploma holders and 4 (four) years in case of degree holders on the basis of merit cum seniority. So upon promulgation of 2012 rules promotion to the rank Assistant Engineer/S.D.O. became available on completion of 7 years of service. So upon promulgation of 2012 rules promotion to the rank Assistant Engineer/S.D.O. became available on completion of 7 years of service. However, merit cum seniority still continues to remain as the basis for promotion. 9] It is the case of the petitioner that neither merit nor seniority has been taken into consideration by the official respondents and mere choose and pick policy has been resorted for last 12 years. In the process respondents No. 5 to 20 who are junior to the present petitioner have been given the benefit of promotion to the next higher rank and petitioner though senior to them has been working in the lower grade. To give a label of legitimacy to such discriminatory promotions, the Government has named such promotion as officiating promotion, but in practice they are considered to be regular promotion for all practicable purposes and finally these promotions are likely to be regularized. The petitioner, therefore, has prayed for giving him the benefit of officiating promotion at par with his juniors by maintaining the same yardstick as has been done to the private respondents. 10] After hearing the learned counsel for the parties it appears that the Government has not been holding D.P.C. in regular course and consequent to this large scale discrimination is being committed. While no promotion can be made without following procedure prescribed under the rules the oblique system of granting officiating promotion by passing the regular procedure is not permissible. What cannot be done directly, cannot be done indirectly. Even if regular promotions are not granted and Government chooses to continue ad-hocism by making officiating promotion, in that event also some rational and reasonable procedure ought to have been followed. In that event nothing except seniority could have been the yardstick for granting officiating promotion. This is because unless a D.P.C. is held the authority is not in a position to arrive at a decision as to comparative merit of the employees falling in the zone of consideration. In that event seniority can only be the basis for granting such officiating promotion. Once it is held that though merit cum seniority is the basis for granting regular promotion and no D.P.C. is held, seniority will be only criteria for the purpose of taking a decision in regard to the promotion on officiating basis. In that event seniority can only be the basis for granting such officiating promotion. Once it is held that though merit cum seniority is the basis for granting regular promotion and no D.P.C. is held, seniority will be only criteria for the purpose of taking a decision in regard to the promotion on officiating basis. The authorities, therefore, ought to have strictly maintained the order of seniority while granting promotion on officiating basis. The records show that the first tentative seniority list of Junior Engineers was published on 24.01.2012 and it is only thereafter the petitioner could realize that the persons who have been granted officiating promotions since 2000 till date are junior to him. The petitioner realized that atleast respondents No. 5 to 20 are all juniors to him but they have been enjoying higher status and salary. Having so realized, the petitioner has approached this court by filing the writ petition. Same was the step taken by the respondent No. 6 on earlier occasion when he approached this court through WP(C) No. 62(K)/2009. The delay in filing this writ petition challenging officiating promotion either in 2007 or before cannot be fatal, inasmuch as, the petitioner was not aware as to whether his juniors were promoted to the higher post in supersession to his claim. 11] On consideration of the totality of circumstances, this court feels that it is necessary for the Government immediately to take a decision for holding regular promotions to the post of Assistant Engineer/S.D.O. from eligible junior Engineers including the private respondents and/or other persons who have been promoted on officiating basis. The respondents No. 1 to 4 after holding D.P.C. shall pass orders for regular promotion strictly following Nagaland Engineering Services (Group A and Group B) Rules, 2012 which is in force. As pointed above, the yardstick for promotion and the quantum of promotion quota as laid down in Nagaland Engineering Services (Gr. A & B) Rules, 2012 is same as that of Nagaland Engineering Services (Class I & II) Rules, 1997. As pointed above, the yardstick for promotion and the quantum of promotion quota as laid down in Nagaland Engineering Services (Gr. A & B) Rules, 2012 is same as that of Nagaland Engineering Services (Class I & II) Rules, 1997. Regularization of any of the respondents No. 6 to 20 even if done by holding D.P.C. without considering the case of the petitioner and other similarly situated persons shall not be valid until and unless they are given due consideration for the purpose of regular promotion in accordance with the rules in making regular promotion to the posts of S.D.O. as indicated above. The official respondents shall consider the case of all similarly situated Junior Engineers including the petitioner who are in the zone of consideration for regular promotion. The whole exercise will be completed within a period of 3 (three) months from today. 12] This writ petition is allowed. 13] No order as to cost.