Z. Lovikali Yepthomi & Anr. v. State of Nagaland &Ors.
2014-07-17
P.K.SAIKIA
body2014
DigiLaw.ai
1. This proceeding has been initiated seeking following prayers: A. Quash and set aside the notification No. TPT-TC-10-2004 dated 8. 10. 2007 (Annexure E) insofar as it relates to the transfer and posting of respondent No. 4 as District Transport Officer, Dimapur. B. Quash and set aside the final seniority list circulated vide letter No. TPT/ TC/Estt-4/2004(Pt.) dated 15.6.2010 (Annexure F) insofar as it concerns the respondent No. 4. C. Direct the State respondents to fix the seniority of respondent No. 4 in the grade/cadre of District Transport Officer from the date on which she was appointed/posted as District Transport Officer, i.e., 8.10.2007. 2. The facts, necessary, for disposal of the present proceeding, in brief, are that the petitioner No. l was directly appointed as the District Transport Officer (‘DTO’) in the Motor Vehicles Department (‘the Department’) on the recommendation of Nagaland Public Service Commission (‘the NPSC’) vide order dated 3.5.2005. The petitioner No. 2 also initially appointed as Motor Vehicles Inspector (‘MVI’) on the recommendation of the NPSC vide order dated 17.9.1991. Thereafter, the petitioner No. 2 was promoted to the post of DTO vide order dated 20. 4.2005 3. The respondent No. 4 was originally appointed as Enforcement Officer (‘EO’) on 20.12.2002 and same was done also on the recommendation of the NPSC. After working for some time, vide notification dated 8.10.07, the respondent No. 4 was transferred and posted as DTO, Dimapur. 4. It has been stated that since the Motor vehicles Department (‘the Department’) has no Service Rules, enacted under article 309 of the Constitution of India to regulate the matters relating to the recruitments and other conditions of service, a Draft Service Rules, known as the Nagaland Motor Vehicles Department Service Rules, 1990 (‘the Rules 1990’) had all along been followed in matters of recruitments and other conditions of service in the Department. 5. In that connection, it has also been stated that a Draft Rules 2009 was also formulated (‘the Rules 2009’) but same has never been notified as required so as to govern the recruitments and other conditions of service in the Motor vehicles Department. 6.
5. In that connection, it has also been stated that a Draft Rules 2009 was also formulated (‘the Rules 2009’) but same has never been notified as required so as to govern the recruitments and other conditions of service in the Motor vehicles Department. 6. As per the Rules 1990, 50% of the posts of DTO are to be filled up by promotion from ‘MVT’, whereas 50% of the post of ‘EO’ are to be filled up by Senior Enforcement Inspector Therefore, the feeder channels to the post of ‘DTO’ and ‘EO’ are different. While the former belongs to Licensing wing, the later belongs to Enforcement wing meaning thereby that the ‘DTO’ and ‘EO’ form two independent cadres pf the Motor Vehicles Department. 7. In support of such contention that the post of the DTO and the post of the EO constitute two different cadres, it has been contended that the duties and responsibilities, assigned to the ‘DTO’ and ‘EO’ are fundamentally different since the ‘DTOs’ are saddled with the duty of licensing, registering and compounding of the offences whereas the ‘Eos’ are entrusted only with the duty of supervising the enforcement staff and compounding of offences. These are, according to the petitioners, prolific testimonies of the duties, assigned to ‘EO’ and ‘DTO’ being fundamentally different, same being one of the prime criteria for determining if different posts constitute a common cadre. 8. Since the duties, assigned the ‘DTO’ and ‘EO’ are fundamentally different and since such difference, based on duties and responsibilities, assigned to the ‘DTO’ and ‘EO’, has been maintained till date, the posting of respondent No. 4 as ‘DTO’ and counting her seniority in the cadre of ‘DTO’ from the date of her initial appointment of ‘EO’ was not only against all the principles of service jurisprudence but same is profoundly illegal as well. 9. In fortifying their claim that the DTO and EO always constituted two different and independent cadres, more and more, it has been submitted that Eos, unlike the DTOs, have no promotional prospects at all whereas a person who ever works as DTO has prospect of promotion up to the level of the Regional Commissioner This is one more testimony of the post of “DTO” and the post of “EO” being the posts of two independent cadres. 10.
10. However, considering the difficulties, faced by the incumbent in the post of ‘EO’, a proposal peeking merger of two cadres of the ‘EO’ and ‘DTO’ was initiated in 2003. However, such a proposal has never been brought to its logical conclusion. According to the petitioners, a proposal attains its finality only when it is approved by Head of the department and only when such decision has been notified in terms of article 166 of the Constitution of India. Unfortunately, there is nothing on record to show that such a proposal had ever reached the stages as contemplated in article 166 of the Constitution.’ 11. Contending that the separate identity of ‘EO and ‘DTO’ has all along been maintained, the petitioners refer me to the-case of one Sri L. Allen Ao, EO. It is submitted that Sri L. Allen Ao had been languishing in the post of ‘EO’ over a long period of time since, as stated above, unlike the DTO’, there was no post for further promotion of the incumbent in the post of ‘EO’ for which Sri L. Allen Ao, EO had to run from pillar to post seeking promotion or seeking some financial up gradation. 12. The Government considered his case and ultimately, a post of Asstt. Transport Commissioner, (in short, ATC), personal to Sri Ao, had to be created to address his grievance. The case of Mr. Ao was classic example of the post of ‘DTO’ and the post of ‘EO’ being the post of different cadres although the salary wise both the posts, are equal. In support of such contention, my attention has been drawn to the letter at Annexure T, Annexure E, notification at Annexure V and the order at Annexure W. 13. In spite of situation being such, in 2007, a final seniority list of DTOs was circulated and published wherein the name of the private respondent No. 4 was shown at SI, No. 7 whereas the names of the petitioner No. 1 and 2 were shown at SI. Nos. 9 and 10, respectively. In view of placing their names below the respondent No. 4 in the aforesaid seniority list, the petitioners herein felt extremely aggrieved since the private respondent No. 4, who joined as ‘DTO’ in 2007, could not have been shown senior to the petitioners in the final seniority list of the ‘DTOs’. 14.
Nos. 9 and 10, respectively. In view of placing their names below the respondent No. 4 in the aforesaid seniority list, the petitioners herein felt extremely aggrieved since the private respondent No. 4, who joined as ‘DTO’ in 2007, could not have been shown senior to the petitioners in the final seniority list of the ‘DTOs’. 14. Being aggrieved for their placements below the respondent No. 4, the petitioner No. l had submitted a representation dated 7. 5. 2010 to the Chief Secretary to the Government of Nagaland Similar representation was also submitted by the petitioner No. 2 highlighting their grievances and seeking redress to the same. The representations of the petitioners were forwarded by Joint Transport Commissioner to the Secretary Transport Department vide letter dated 1.6.2010. 15. In the letter forwarding the representations of the petitioners, the Joint Transport Commissioner had highlighted the back, grounds leading to approval of the proposal of merger of the post of ‘EO’ with the post of ‘DTO’ quoting various paragraphs from the letter dated 12.9.2003. It has been stated in the letter dated 1.6.2010 that the stagnancy of the incumbent in the lone post of ‘EO’ was the prime reason for initiating the proposal seeking merger of the post of ‘EO’ with the post of ‘DTO ‘. 16. In due course, the representations of the petitioners was considered and rejected. The rejection was made on the following grounds: (i) “The pay scale of the E.O. and DTO are same and they have similar duties. (ii) Government has conveyed administrative approval by letter dated 6.5.2005 for merger of the two posts. (iii) The post of E.O. has been brought under the category of ‘DTO’ and made inter transferrable vide letter dated 27.8.2007. (iv) Respondent No. 4 was appointed as an ‘EO’ prior to the appointment of the petitioners as ‘DTO”. 17. According to the petitioners, the grounds on which representations of the petitioners were rejected were wholly baseless arid incorrect. In that connection, it has been pointed out that the contention of the State respondents that on the merger of the post of ‘EO” with the post of ‘DTO’, the grievances of the petitioners so highlighted in their representations became irrelevant was without any basis since, according to the petitioners, till date, the post of ‘EO’ has not been merged with the post of ‘DTO’ as required under the law. 18.
18. In support of such contention, my attention has been drawn to the letter dated 6.5.2005 (Annexure M), letter dated 13.9. 2006 (Annexure N), letter dated 2. 3. 2007 (Annexure O), letter dated 22.3.2007 (Annexure P), letter dated 21.6.2007 (Annexure Q), letter dated 2.8.2007 (Annexure R) and letter dated 27.8.2007 (Annexure S). In the letter at Annexure M, the Government sought for some clarifications regarding conversation of non-technical post of ‘EO’ to technical post of ‘DTO’. 19. In reply to the letter at Annexure M, the Additional Transport Commissioner, Motor Vehicles Department submitted that the lone post of ‘EO’ was to be merged with the post ‘DTO’ to ensure progression of career of the incumbent in the post of ‘EO’. Once again, the Government sought more clarification from the Additional Transport Commissioner through the letter at Annexure O. Clarification, sought for through the letter at Annexure O if the incumbent in the post of ‘EO’ had experience and qualification to hold the technical post of ‘DTO’. 20. In reply to the letter at Annexure O, the Addl. Transport Commissioner through his letter at Annexure P informed that the incumbent in the post of ‘EO’ was an officer competent enough to man the post of ‘DTO’. In the letter at Annexure Q, the Addl. Transport Commissioner further notified the Government that later had not thence been issued any notification in respect of conversion of non-technical post to technical post 21. In the letter at Annexure R, the Addl. Transport Commissioner again complained that though the proposal for merger of ‘DTO’ and ‘EO’ had been approved yet necessary notification in that regard had not been issued till then. By the letter at Annexure S, the Government had informed the Addl. Transport Commissioner that post of ‘EO’ and ‘DTO’ had been incorporated under the same category and the posts are made inter transferable in the Motor Vehicles Department Rules which was, however, under active consideration of the Government. All these, according to the petitioners, are fluent testimonies of the proposal for merger of the post of ‘DTO’ and ‘EO’ still being in the stage of the proposal only. 22. Contending that the Government decision attains finality affecting its officers/staff only when such decisions are expressed and authenticated as required under the law.
All these, according to the petitioners, are fluent testimonies of the proposal for merger of the post of ‘DTO’ and ‘EO’ still being in the stage of the proposal only. 22. Contending that the Government decision attains finality affecting its officers/staff only when such decisions are expressed and authenticated as required under the law. But in the case at hand, the decision to merge the post of DTO and the post of EO in to one common cadre has never been affected as required under the law. Such a decision remains confined in the noting of the official files. 23. In support of such contention, my attention has been drawn to the decision of the Apex Court in the case of State of Bihar v. Kripalu Shankar, (1987) 3 SCC 34 . The relevant part is reproduced below: “15. Article 166(1) requires that all executive action of the State Government shall be expressed to be taken in the name of the Governor. This clause relates to cases where the executive action has to be expressed in the shape of a formal order or notification. It prescribes the mode in which an executive action has to be expressed. Nothing by an official in the departmental file will not, therefore, come within this article nor even noting by a Minister. Every executive decision need not be as laid down under article 166(1) but when it takes the form of an order it has to comply with article 166 (1). Article 166(2) states that orders and other instruments made and executed under article 166(1), shall be authenticated in the manner prescribed. While clause (1) relates to the mode of expression, clause (2) lays down the manner in which the order is to be authenticated and clause (3) relates to the making of the rules by the Governor for the more convenient transaction of the business of the Government. A study of the article, therefore, makes it clear that the notings in a file get culminated into an order affecting right of parties only when it reaches the head of the department and is expressed in the name of the Governor, authenticated in the manner provided in article 166(2). ” 24. Similar view was rendered in the case of Puranjit Singh v. U.T. of Chandigarh, (1994) Supp 3 SCC 471. The relevant part is reproduced below: “11.
” 24. Similar view was rendered in the case of Puranjit Singh v. U.T. of Chandigarh, (1994) Supp 3 SCC 471. The relevant part is reproduced below: “11. The petitioners seniority has therefore, to be counted in his parent Department which is the Engineering Department of the Chandigarh Administration, and he has also to earn his promotions in the said Department according to the Rules and, as and when the appointments are made to the a vacancies which become available in the Department. He can neither count his seniority on the basis of his service prior to his fresh career as a direct recruit nor can he claim his promotion on the basis of the post or posts that he had held in the organizations to which he was deputed. However, in spite of the clear position in law, he has been pursuing his misplaced claim for counting his seniority prior to his fresh career of Assistant Engineer as a direct recruit and for promotions on the basis of the promotions which he had earned in the organization where he was sent on deputation. For this purpose he is relying upon certain notings either of the Chief Engineer or the Home Secretary of the Chandigarh Administration. Although it is not known how he came in possession of the said notings it was improper on his part to produce these notings in the court proceeding assuming that he had come in possession of them authorisedly. As a responsible officer he ought to know that notings in the departmental files did not create any rights in his favour. It is the orders issued by the competent authorities and received by him which alone can create rights in his favour. This is apart from the fact that even those notings did not spell out any order in his favour. In the circumstances, the authorities on which the learned counsel for the petitioner relied are inapplicable to the facts of the present case.” 25. In the face of above, the post of ‘DTO’ and the post of ‘EO’ continue to be posts in different cadres in Motor Vehicles Department.
In the circumstances, the authorities on which the learned counsel for the petitioner relied are inapplicable to the facts of the present case.” 25. In the face of above, the post of ‘DTO’ and the post of ‘EO’ continue to be posts in different cadres in Motor Vehicles Department. Situation being such, the decision of the State respondents allowing the respondent No. 4 to count seniority from the date of her initial appointment as EO and her transfer and posting as ‘DTO’ Dimapur are profoundly illegal and as such, the transfer order aforesaid as well as the seniority list under which private respondent stood placed above the petitioners are liable to be interfered with. 26. It is also the case of the«petitioners even if one assumes for the sake of argument for a moment that on the basis of the letter dated 6.5.2006, the post of EO stood merged with the post of DTO to form a common cadre, yet then, the respondent No. 4 cannot be placed above the petitioners in the seniority list of DTO since the petitioners joined the cadre of DTO well before such merger which allegedly took place on 6.5.2006. Being so, the respondent No. 4 ought to have been placed not above the petitioners but at the bottom of the aforesaid seniority list. 27. In support of such contention, the learned counsel for the petitioners has referred me to the decisions of the hon’ble Supreme Court in the case of Sushama Mutreja v. Union of India, (2001) 6 SCC 428 where it was held that when a person is brought from one cadre to other and joins a new cadre then he must be treated to be the lowest in the cadre”. 28. Same view has been rendered in the case of Amurjit Singh v. Deviratan, (2010) 1 SCC 417 , the relevant portion is reproduced below: “27. The late comers to a regular stream cannot steal a march over the earlier arrivals in the regular queue. An officer cannot be given seniority prior to his birth in the cadre adversely affecting the seniority of other officers who had been appointed prior to him. ” 29. Notice of the proceeding, was served on the respondents. The State respondents as well as private respondent (respondent No. 4) having received the notice filed separate counter affidavits and contested the proceeding.
” 29. Notice of the proceeding, was served on the respondents. The State respondents as well as private respondent (respondent No. 4) having received the notice filed separate counter affidavits and contested the proceeding. In their common counter affidavit, the State respondents did not dispute the fact that the respondent No. 4 was appointed as ‘EO’ on 20.12.2002 nor did they deny the appointment of the petitioner No. l and petitioner No. 2 as ‘DTO’ on 3.3.2005 and 26.4.2005, respectively. 30. While admitting that the Draft Service Rules, 1990 ( ‘the Rules of 1990’) was there over a long period of time, the State respondents have further claimed that in 2007, the Draft Service Rules, 2007 ( ‘the Rules of 2007 ‘) and in 2009, the Draft Service Rules, 2009 ( ‘the Rules of 2009 ‘) had also been put in place But then, all those Rules have remained in the State of Draft Rules only since they were never approved in accordance with requirement of law. 31. Ultimately, the Nagaland Motor Vehicles Service Rules, 2010 (‘the Rules of 2010’) were prepared and same was notified on 30.8.2010. It has been stated that since then, the new Rules of 2010 have been followed in matter of recruitments and other conditions of services of the officers. Therefore, the procedures which were followed under the Draft Rule, 1990 becomes irrelevant and cannot be relied upon any more. 32. Narrating the circumstances which lead to enactment of the Rules of 2010, it has beet stated that since 2001, the Motor Vehicles Department has undergone-major reorganization. The State respondents admitted that before restructuring, the department had maintained two separate wings, they being Licensing wing and Enforcement Wing, with different methods of recruitment of officers to man the Licensing wing and Enforcement wing. 33. However, in 2001, the recruitment policy of Enforcement Officer has been changed and the respondent No. 4 was recruited as ‘EO’ through the NPSC. Since the qualification, prescribed for recruitment to the post of ‘EO’, the pay, attached to such post and the status thereof are very similar to the post pf DTO, the post of ‘EO’ was merged with the DTO with the approval of the Government vide letter dated 6.5.2005. 34.
Since the qualification, prescribed for recruitment to the post of ‘EO’, the pay, attached to such post and the status thereof are very similar to the post pf DTO, the post of ‘EO’ was merged with the DTO with the approval of the Government vide letter dated 6.5.2005. 34. Since the merger/conversion of the post of ‘EO’ with the post of DTO was done strictly in accordance with the principles, incorporated in service jurisprudence and since it was done with due approval of the State Government there was no infirmity whatsoever in either transfer and posting of respondent No. 4 as ‘DTO’ or counting her seniority in the post of ‘DTO’ from the date of her initial appointment as ‘EO’. 35. In that connection, it has been pointed out that in his letter dated 22.3.2007, the Addl. Transport Commissioner had stated that the prescribed qualifications for ‘DTO’ as well as ‘EO’ is a Bachelor Degree. Even the incumbents in and both posts are sent to the same institute for similar training. Since pay scales and status of the ‘DTO’ and ‘EO’ are similar, since the qualifications, prescribed for both the posts are same and since they are sent to same institute to undergo similar training, the Addl. Transport Commissioner had all along implored the Government to merge the post of ‘EO’ with the post of DTO. 36. In paragraph 24 of the counter affidavit, the State respondents claim that after restructuring the Transport department, the post of DTO and the post of ‘EO’ stood merged and they become part of a common cadre and, therefore, the seniority of the officers in the common cadre is to be counted from the date of their initial joining in their respective post. 37. The respondent No. 4 too filed separate counter affidavit to contend that the petition filed by the petitioners needs to be rejected outright since the petitioner No. 1 never disclosed anywhere that he had successfully completed the 2 years of probation. Similarly, petitioner No. 2 did not utter a single word if in the grade of ‘DTO’ his service was ever regularised. In view of above, the petition in hand needs to be rejected outright. , 38.
Similarly, petitioner No. 2 did not utter a single word if in the grade of ‘DTO’ his service was ever regularised. In view of above, the petition in hand needs to be rejected outright. , 38. It is also the case of private respondent that she has successfully completed her probation period and on completion of the period on probation, her service was regularised with immediate effect, vide notification dated 16.11.2006. Since her service was regularised ahead of the regularization of the services of the petitioners, the later cannot claim seniority over her in the rank of ‘DTO’. 39. Her further case was that it is not true that at all the material point of time, the Draft Rules of 1990 had held the field. Rather in 2006, the Nagaland Motor Vehicles Department Service Rules, 2006 had been framed under which the post of ‘DTO’ and ‘EO’ are made equivalent and the post of Asstt. Transport Commissioner/Regional Transport Officer are made next promotional post to the incumbent in the post of ‘DTO’ and ‘EQ’. 40. In that connection, it is being submitted that even before the rule of 2006 came into being, the post of ‘EO’ in view of restructuring of the Motor Vehicles Department, could be filled up only by direct recruitment - and - not by promotion from lower grade as has been done under the Rules of 1990. Similarly, under the Rules of 2007; the post of ‘DTO’ and ‘EC’ were graded as Junior Grade and the incumbents in the both the post were made eligible for promotion to the senior grade, provided they are confirmed in such post and completed not less than 5 years of service in such grade: 41. Admitting that up to certain point of time, ‘DTO’ ‘and ‘EO’ were treated as the members of two different cadres, it has been contended that after restructuring of the Department in 2001 and under all the Rules framed after 2006, such distinction was done away with and the post of DTO and the post of EO are made posts of a common cadre. In support of such contention, it is being pointed out that the responsibility and duties, attached to the ‘DTO’ and ‘EO’ are same and same qualifications are also prescribed for recruitment to the post of ‘DTO/ EO. Even the incumbents in those posts are to undergo similar in-service training in same institute.
In support of such contention, it is being pointed out that the responsibility and duties, attached to the ‘DTO’ and ‘EO’ are same and same qualifications are also prescribed for recruitment to the post of ‘DTO/ EO. Even the incumbents in those posts are to undergo similar in-service training in same institute. 42. According to private respondent, since the incumbent in the post of ‘EO’ had faced some problems in past, on 12.9.2003. the department has forwarded the Government as many as 40 proposals for restructuring the Motor Vehicles Department and by the letter dated 6.5.2005, the Government had approved the proposal for the merger of the post of ‘DTO’ with the post of ‘EO’ More important, such merger stood affirmed under the Service Rules of 2010 as well. 43. It is also the contention of the private respondent that the seniority is to be counted not from the date of entry into cadre - but - on the date on which a particular officer makes entry to the grade. Since the post of the DTO and the Post of the EO are of same grade and since the respondent No. 4 made entry into grade on 20.12.2002, well ahead of the petitioners, no wrong had been committed by the State Respondents by placing the respondent above the petitioners in the seniority list of ‘DTO’. 44. I have considered the rival submissions having regard to the pleaded cases of the parties. We have already found that the petitioners painstakingly claim that the post of ‘EO’ and ‘DTO’ belong to two different cadres and such distinction has always been maintained. Though, a process has been initiated to merge the post of ‘DTO’ with the post of ‘EO’, yet, such process has never been brought to a logical end. 45. The State respondents admitted that though the post of ‘EO’ and the post of DTO’ carry similar pay, yet, they were placed in two different independent cadres up to certain point of time. However, since the incumbent in the post of ‘EO’ did not have further career prospects, in course of time, the department was restructured and the post of ‘EO’ was merged with the post of ‘DTO’ vide letter dated 6.5.2005.
However, since the incumbent in the post of ‘EO’ did not have further career prospects, in course of time, the department was restructured and the post of ‘EO’ was merged with the post of ‘DTO’ vide letter dated 6.5.2005. Since the post of ‘EO’ stood merged with the post of ‘DTO’, they form a common cadre and therefore, seniority of the petitioners and the respondent No. 4 is to be counted from the initial date of their joining in the respective post. 46. On the other hand, the respondent No. 4 took a little different stand since the private respondent in her counter affidavit claims that though up to certain point of time, the separate identity of ‘DTO’ and ‘EO’ was maintained - yet - from 2001, for all practical purposes, the post of DTO and the post of ‘EO’ are treated as posts of a common cadre. 47. On considering the above submissions in the light of material on record, it is found that in past, the post of ‘DTO’ and the post of ‘EO’ had always been treated as the posts of two different cadres The case of Sri L. Allen Ao, ‘EO’ is a clear pointer to such a conclusion. The letters/orders at Annexure E to Annexure W un-mistakeably demonstrate that Shri Ao, ‘EO’, unlike the incumbent in the post of ‘DTO’, had to run from pillar to post seeking promotion or promotional benefits. 48. However, according to State respondents, with the issuance of the letter dated 6.5.2005, both the post stood merged into one cadre. Does such a contention bear any truth? But then, such a query is closely connected with some other questions as well such as; (a) Did the posts of DTO and the post of EO merge into one cadre? And, if so,(b) when? 49. In that context, one may profitably peruse the decision of hon’ble Supreme Court in the case of Gulabrao Keshavrao Patil and Ors. v. State of Gujarat and Ors., (1996) 2 SCC 26 (SC). The relevant part of the decision is reproduced below: “166. Conduct of business of the Government of a State. - (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
v. State of Gujarat and Ors., (1996) 2 SCC 26 (SC). The relevant part of the decision is reproduced below: “166. Conduct of business of the Government of a State. - (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor”. In other words, article 166 (1) and (2) expressly envisage authentication of all the executive actions and shall be expressed to be taken in the name of the Governor and shall be authenticated in such manner specified in the rules made by the Governor. Under article 166(3), the Governor is authorised to make the rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is hot business with respect to which the Governor is by or under the Constitution required to act in his discretion. In other words, except in cases when the Government in his individual discretion exercises his constitutional functions, the other business of the Government in his individual discretion exercises his constitutional functions, the other business of the Government required to be conveniently transacted as per the Business Rules made by article 166(3) of the Constitution. If the action of the Government and the order is duly authenticated as per article 166(2) and the Business Rule 12, it is conclusive and irrefutable presumption arises that decision was duly taken according to Rules”. “The responsibility to the Governor and accountability to the people collectively by the Council of Ministers is through and by the Chief Minister. It would, therefore, be clear that the decision of the Minister under the Business Rules is not final or conclusive until the requirements in terms of clauses (1) and (2) of article 166 are complied with.
“The responsibility to the Governor and accountability to the people collectively by the Council of Ministers is through and by the Chief Minister. It would, therefore, be clear that the decision of the Minister under the Business Rules is not final or conclusive until the requirements in terms of clauses (1) and (2) of article 166 are complied with. Before ‘the action or the decision is expressed in the name of the Governor in the manner prescribed tinder the Business Rules and communicated to the party concerned it would always be open by necessary implication, to the Chief Minister to send for the file and have it examined by himself and to take a decision, though the subject was allotted to a particular Minister for convenient transaction of the business of the Government. The subject, though exclusively allotted to the Minister, by reason of the responsibility of the Chief Minister to the Governor and accountability to the people, has implied power to call for the file relating to a decision taken y a Minister The object of allotment of the subject to a Minister is for the convenient transaction of the business at various levels through designated officers. ” The ultimate object is to secure an impartial, pure and efficient administration as pro-founded by Dr. Ambedkar in the Constituent Assembly vide Constituent Assembly Debates, Vol. VIII page 546. In Bachhittar Singh v. The State of Punjab, (1962) Supp 3 SCR 713) a Constitution Bench of this court was to consider whether the order of the Revenue Minister could not be reviewed and set aside by the Chief Minister. In that context it was held that the order must be expressed in the name of the Governor as required by clause (f) of article 166 and then it has to be communicated. Until such an order is draw up by the State Government in accordance with article 166 (1), the State Government cannot be regarded as bound by what was stated in the file. The business of State is a complicated one and has necessarily to be conducted through the agency of large number of officials and authorities. The action must be taken by the authority concerned in the name of the Raj Pramukh.
The business of State is a complicated one and has necessarily to be conducted through the agency of large number of officials and authorities. The action must be taken by the authority concerned in the name of the Raj Pramukh. The Minister is no more than an advisor and as head of the State the Governor or the Raj Pramukh has to act with the aid and advice of the Council of Ministers Until the advice is accepted by the Governor, whatever the Minister or the Council of Ministers may say with regard to a particular matter, does not become the action of the State until the advice of the Council of Ministers is accepted by the head of the State. Until order is drawn up in the manner indicated by article 166(1) and communicated to the person who would be affected by the order it would be open to the Council of Ministers to consider the matter over and even again and, therefore, till its communication, the order cannot be regarded as anything more than provisional in character. Even if the rule does not contemplate that the Chief Minister would be entitled to pass an order but when the rule envisages that he is entitled to call for the file for issue of order, it clearly implies that he has the right to interfere and make such order as he may deem appropriate. The Chief Minister may call any file and deal with it himself. The order passed by the Chief Minister even though it is a matter pertaining to the portfolio of the Revenue Minister will be deemed to be an order of Council of Ministers. So deemed, its contents would be the Chief Minister’s advice to the Governor for which the Council of Ministers would be collectively responsible. This view was reiterated by a larger Bench of seven - Judges of this court in State of Karnataka v. Union of India and Anr., AIR 1978 SC 68 .
So deemed, its contents would be the Chief Minister’s advice to the Governor for which the Council of Ministers would be collectively responsible. This view was reiterated by a larger Bench of seven - Judges of this court in State of Karnataka v. Union of India and Anr., AIR 1978 SC 68 . In paragraph 46 this court held that the object of collective responsibility is to make the whole body of persons holding ministerial office collectively or if one may so put it, vicariously responsible for such acts or the other as are referable to their collective volition so that even if an individual may not be responsible for it he will be deemed to share the responsibility with those who may have actually committed the wrongful act. In paragraph 48 the court observed that responsibility to Parliament only means that the Minister may be compelled by convention to resign. Out of this responsibility arose the principle of collective responsibility. The Government has to be carried on as a unity rather than by a number of advisers of the Sovereign action separately. ” 50. Similar view has been rendered by the Apex Court of the country in the case of State of Bihar (supra) wherein the Apex Court held that noting in a file gets culminated into an order affecting right of the parties only when it reaches the Head of the Department and is expressed in the name of the Governor and is authenticated in the manner as provided in the article 166 (2) of the Constitution of India. The proposition of law, so enunciated, was again affirmed by Apex Court in case of Puranjit Singh (supra). 51. What is quite interesting to note is that in many other cases too, State respondents followed the law so laid down in the case of Gulabmo Keshavrao Patil (supra) and cases, referred to above. In that connection, my attention has also been drawn to the notification dated 26.11.1998. For ready reference the aforesaid notification is reproduced below - “GOVERNMENT OF NAGALAND TRANSPORT & COMMUNICATION DEPARTMENT ORDER Dated Kohima, the 26th November, 1998 No. TPT/TC/ESTT-6/81: The Governor of Nagaland is pleased to order the up-gradation of one post of Enforcement Officer (Class-II Gazetted) in the scale of pay of Rs. 1800-3700 which was originally created as Astt.
For ready reference the aforesaid notification is reproduced below - “GOVERNMENT OF NAGALAND TRANSPORT & COMMUNICATION DEPARTMENT ORDER Dated Kohima, the 26th November, 1998 No. TPT/TC/ESTT-6/81: The Governor of Nagaland is pleased to order the up-gradation of one post of Enforcement Officer (Class-II Gazetted) in the scale of pay of Rs. 1800-3700 which was originally created as Astt. Regional Transport Officer, Class-II Gazetted vide Order No. TPT/TC/1/79 dated 9.12.1980 and subsequently redesignated as Enforcement Officer vide Order No. TPT/TC/1/79 (Pt-II) dated 15.4.1984 to that of Asstt. Transport Commissioner (Class I Gazetted) in the scale of pay of Rs. 2350-9032-150-100-4450 p.m. plus special Compensatory (Remote Locality) Allowance @ 15% of basic pay and all other allowances as are admissible from time-to-time in the State under the establishment of Transport Commissioner, Nagaland w.e.f. 3rd November 1998 (FN). 2. This up-gradation of post shall be personal to Shri L. Allen Ao and will be reverted back to Enforcement Officer on his retirement. 3. This issues with the clearance of P & AR Department (O.M. Cell) vide their U.O. No. 47 dated 20.11.1997 and concurrence of Finance Department vide RFCE No. 34 dated 17.12.1997 and Cabinet decision on 3.11.1998”, SD-/ J. VISWEDEL Secretary to the Govt. Nagaland. ” 52. Conning back to our case, I have already found that the post of ‘EO’ and the post of ‘DTO’ are the posts of two different wings or the Motor Vehicles Department, I have also found that a process had been initiated for the merger of the pest of ‘EO’ with the post of ‘DTO’. Now, it is to be seen if such a proposal had ever been expressed and authenticated in the terms of article 166 of the Constitution of India as well as law laid down in Gulabreo Keshavrao Patil (supra) and Puranjit Singh (supra) to attain its finality. 53.
Now, it is to be seen if such a proposal had ever been expressed and authenticated in the terms of article 166 of the Constitution of India as well as law laid down in Gulabreo Keshavrao Patil (supra) and Puranjit Singh (supra) to attain its finality. 53. In that connection, I have very carefully considered the letters/orders having huge bearing on the matter under consideration, they being letters/ orders/notifications at Annexure W to Annexure W For ready reference, some of those letters/orders/notifications, more particularly, the letter at Annexure R and letter at Annexure S are reproduced below: “GOVERNMENT OF NAGALAND MOTOR VEHICLES DEPARTMENT OFFICE OF THE TRANSPORT COMMISSIONER NAGALAND KOHTMA No. TC148/78/Pt/604 Dated Kohima, the 2nd August, 2007 To The Secretary to the Government of Nagaland Transport & Communication Department Nagaland, Kohima Sub: Re-structuring of Motor Vehicles Department Sir, I am to refer to your letter No. TPT/TC-7/2003 dated 6th May, 2005 and to state that Government has conveyed Administrative approval for merger of lone Enforcement Officer post with District Transport Officer cadre, the two cadre being the same scale of pay and undergoing same training programme. Although the merger of the cadre has been approved, no notification to the effect has been issued till date. as the posting of District Transport Officer shall be required at Dimapur consequent upon promotion of the present District Transport Officer, the senior most in the cadre to Regional Transport Officer which is under process, it may be necessary to issue a notification to the merger of the cadre so that the pre Enforcement Officer is also included in the transfer and posting. Yours faithfully T. MERENPAUL Additional Transport Commissioner. ” “GOVERNMENT OF NAGALAND TRANSPORT & COMMUNICATION DEPARTMENT No. TPT/TC-7/2003 Dated Kohima, the 27th August, 2007 To The Addl. Transport Commissioner Motor Vehicles Department Nagaland, Kohima. Sub: Re-Structuring of Motor Vehicles Department Sir, I am directed to refer to your letter No. TC-148/78/Pt/604 dated 2.8.2007 on the above cited subject and to say that we have incorporated the post of Enforcement Officer under the same category of District Transport Officer With same pay scale and inter-transferable in the Nagaland Motor Vehicles Deptt. Service Rules which is under the Government for finalization. Yours faithfully (T. IMNUKIMCHEN) Deputy Secretary to the Govt. of Nagaland. ” 54.
Service Rules which is under the Government for finalization. Yours faithfully (T. IMNUKIMCHEN) Deputy Secretary to the Govt. of Nagaland. ” 54. Since the State respondents as well as the private respondent had also placed enormous reliance on the letter dated 6.5.2005 to show that the post of ‘DTO’ and the post of ‘EO’ stood emerged to form a common cadre, I also find it necessary to reproduce the aforesaid letter as well. “GOVERNMENT OF NAGALAND TRANSPORT & COMMUNICATION DEPARTMENT NO. TPT/TC-7/2003 Dated Kohima, the 6th May, 2005 To The Addl. Transport Commissioner, Motor Vehicles Department Sub: Re-Structuring of Motor Vehicle Department Sir, I am directed to invite a reference of your letter No. TC-148/78 (Pt/129 dated 12.9.2003). On the subject cited above and convey administrative approval of the proposal. It is requested to submit a separate proposals for each of the matters for further examination/consideration by the Government as follows: 1. Paras 5 to 12: Conversion of non-technical to technical post and re-designation along with financial implications. 2. Paras 22 to 29: Rectification of pay anomalies of different grades. Yours faithfully (T. IMUKIMCHEN) Under Secretary to the Govt. of Nagaland.” 55. On the perusal of the aforesaid letters/orders/notifications at Annexure N to Annexure Q, more particularly, letter at Annexure N, Annexure R and Annexure S, I have found that all those communications clearly demonstrate that there was a proposal for merger of the post of ‘EO’ with the post of ‘DTO’ but said proposal has always remained in the stage of proposal only since there is absolutely nothing on record to show that the proposal for the merger of the post of “EO” with the “DTO” had ever been expressed and authenticated as required under article 166 of the Constitution of India. 56. Being so, there cannot be any escape from the conclusion that the a proposal for merger of the post of “EO” with the “DTO” has never been brought to its logical conclusion. In other words, on the date, on which the Notification dated 8.10.2007 and Notification dated 15.6.2010 were issued which are impugned in the present proceeding, the post of DTO and the Post of EO in the Department remain the post of two different cadres which make, both the Notification aforesaid unsustainable in law. 57.
In other words, on the date, on which the Notification dated 8.10.2007 and Notification dated 15.6.2010 were issued which are impugned in the present proceeding, the post of DTO and the Post of EO in the Department remain the post of two different cadres which make, both the Notification aforesaid unsustainable in law. 57. Even one considers for one reason or other that the post of ‘EC’ was merged with the post of ‘DTO’ with effect from 6.5.2005, even then, he needs to conclude that the private respondent was born in the cadre of ‘DTO’ only with effect from 6.5.2005 and - not a day before. Since the petitioners had joined the Department as ‘DTO’ well before 6.5.2005, the respondent No 4 cannot be made senior to the petitioners inasmuch as it is a settled law that no one can claim seniority in a cadre from the date on which he was not born in such cadre. 58. One may note here that the private respondent claims that since her service was regularised well before the regularisation of services of the petitioners, she needs to be given seniority above the petitioners and having given her seniority above the petitioners, the State respondents committed no wrong whatsoever We have already found that the post of ‘EO’ and the post of ‘DTO’ form two separate cadres in the Motor Vehicles Department and such posts have not yet been merged to form one cadre. 59. In view of above, the regularisation of the service of the respondent No. 4 before the regularisation of the service of the petitioners cannot give the respondent No. 4 seniority over the petitioners fn the cadre of the DTO. Being so, aforesaid claim of the respondents is also found to be without any substance and same is, therefore, required to be rejected. 60. Here, it may be mentioned that the respondents claim that under the Rules of 2010, the distinction between the post of ‘DTO’ and the post of ‘EO’ has been done away with and as such, in terms of the Rules of 2010, the respondent No. 4 became senior to the petitioners. This proposition has been disputed by the petitioners stating that under the Rules, 2010 to the distinction between the post of ‘EO’ and the post of ‘DTO’ has been maintained. 61.
This proposition has been disputed by the petitioners stating that under the Rules, 2010 to the distinction between the post of ‘EO’ and the post of ‘DTO’ has been maintained. 61. Without entering into the merit of the aforesaid claims, it needs to be stated that it is a cardinal principle Service Jurisprudence that the Service Rules cannot have retrospective effect. It is prospective in operation. Therefore, even if the post of ‘DTO’ and the post of ‘EO’ stood merged in to one cadre in view of the Rules of 2010, said service Rules had nothing to do with insofar the seniority of the petitioners and the respondent is concerned. 62. It may be stated here that in her counter affidavit, the respondent No. 4 had contended that the seniority of an employee is to be counted - not from the date on which he/she joined the cadre - but - from the date on which he joined the grade Since the respondent No. 4 joined the grade which includes the ‘DTO’ and ‘EO’ on 20.2.2002, her seniority is to be counted from the date of her joining in the post of ‘EC’. Therefore, according to the respondent No. 4, the State respondents committed no wrong in counting her seniority in the grade of ‘DTO’ and ‘EO’ with effect from 20.12.2002. 63. Does such an argument hold water? In order to answer this query, we need to know the exact meaning of the term “Grade” and “Cadre”. According to Webster’s New Twentieth Century Dictionary, the term “Grade” means a step, degree, rank. 64. According to same dictionary, “Cadre” means “1. . . . . . . . . . . . . . . . . . . . . . . . . . 2. . . . . . . . . . . . . . . . . . . . . . . . . 3. Staff/officers” 65. The Oxford Dictionary, “Cadre” means “1. a small group of people trained for particular purpose or profession, 2. . . . . . . . . . . . . . . . . . . . . . . .” 66. According to same Dictionary “Grade” means (1) as a particular level of rank quality, proficiency or value, 2. . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . .” 66. According to same Dictionary “Grade” means (1) as a particular level of rank quality, proficiency or value, 2. . . . . . . . . . . . . . . . . . . . . . . . . 3. . . . . . . . . . . . . . . . . . . . 4. . . . . . . . . . . . . . . . . . . . . . . . . 67. On the perusal of the definition of the words cadre’ and ‘grade’, as rendered in Webster’s New Twentieth Century Dictionary as well as the Oxford English Dictionary, it becomes clear that while the term ‘grade’ is generic, the term ‘cadre’ is a specific one. In other words, the ‘cadre’ is one of the constituents which form a particular ‘Grade’. 68. When such analogy has been issued in the context of the present case, one would definitely find that the date of joining in the grade may not be the deciding factor for determining the seniority of the Government servant in a particular cadre. Rather, the date of joining in the cadre would determine the seniority among the officers of the same cadre. 69. Consequently, the notification dated 8.7 2007 insofar it relates to posting of respondent No. 4 as ‘DTO’, Dimapur as well as the final seniority list dated 15.6.2010 insofar it relates to respondent No. 4 stand quashed and set aside. 70. In view of the above, the State respondents are directed to prepare a fresh seniority list assigning the petitioners appropriate positions in such seniority list as indicated above. 71. With the above-observations and directions, this writ petition stands disposed of. No costs.