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Gauhati High Court · body

2015 DIGILAW 1030 (GAU)

A. Tamjen Jamir v. State of Nagaland

2015-08-14

SUMAN SHYAM

body2015
Judgment : Heard Mr. I. Longjem, learned counsel for the petitioner. Also heard Mr. K. Sema, learned Addl. Advocate General, Nagaland as well as Mr. R. Iralu, learned Sr. counsel appearing on behalf of respondent No. 15. The remaining respondents did not enter appearance despite service of notice. 2. The instant writ petition has been filed by the petitioners, two in number, who are officiating in the post of General Manager/ Deputy Director under the Directorate of Industries and Commerce, Nagaland, inter -alia, challenging the validity of the final seniority list dated 26-07-2011 in so far as the grade of Functional Manager/ Assistant Director is concerned and also the notification dated 19-08-2011 by means of which the respondent No. 3 to 13 have been given officiating promotion to the post of Deputy Director/ General Manager under the Directorate of Industries, Nagaland. 3. The case of the petitioners, in brief, is that by the notification dated 19-12-1988 issued by the Under Secretary, Nagaland Public Service Commission (NPSC), Kohima, recommendations were made in favour of 8 (eight) numbers of candidates for appointment against the vacant posts of Inspector of Industries/ Extension Officer (Class-III non-gazetted) under the Industries and Commerce Department, Govt. of Nagaland. Pursuant to the said recommendation, the Director of Industries, Kohima, Nagaland had issued order dated 19-04-1989 appointing all the eight candidates including the petitioners. In the aforesaid list dated 19-12-1988 the respondent No. 7, 13 and one Smti. Anjali G. Kachari were placed above the petitioners in the order of merit whereas the respondent No. 6 and 12 had been shown below the petitioners. 4. Thereafter, by issuing the notification dated 19-07-1996 the Joint Director of Industries (Administration), Nagaland had published the final seniority list of the Extension Officers/ Inspector of Industries as on 18-07-1996. In the said list the names of the petitioner No. 1 and 2 appeared in Sl. No. 8 and 9 respectively whereas the name of the respondent No. 12 appeared at Sl. No. 10. In the seniority list dated 19-17-1996 the name of the respondent No. 6 did not even figure. 5. It is the admitted case of the petitioners that as per date of joining in service the respondent No. 3, 4, 5, 7 and 13 are senior to both the petitioners herein. However, the petitioners have firmly contended that the respondent Nos. In the seniority list dated 19-17-1996 the name of the respondent No. 6 did not even figure. 5. It is the admitted case of the petitioners that as per date of joining in service the respondent No. 3, 4, 5, 7 and 13 are senior to both the petitioners herein. However, the petitioners have firmly contended that the respondent Nos. 6, 8, 9, 10, 11, 12 and 14 are all juniors to both the petitioner No. 1 and 2 whereas the respondent No. 15 is junior to petitioner No. 1 but senior to petitioner No. 2. Notwithstanding the same, the names of the said respondents have been shown at a higher position in the impugned seniority list. 6. In support of the aforesaid claim, the petitioners have further stated that the respondent No. 6 was placed below the petitioners in the order dated 19-12-1988 issued by the NPSC as well as the appointment order dated 19-04-1989 prepared in order of merit. Yet, the said respondent No. 6 has been shown to be senior to the petitioners in the impugned seniority list. The respondent No. 8 had been initially brought to the Department of Industries for a period of two years on deputation basis vide order dated 31-05-1988 but thereafter he was absorbed in the post of Inspector of Industries on regular basis w.e.f. 21-11-1990 by issuing Government Order dated 12-12-1990 in contravention of the relevant rules. In the said order it was also mentioned that the seniority of the respondent No. 8 in the cadre will be counted from the date of absorption under the Department that is w.e.f. 21-11-1990. Even assuming that his appointment was valid in the eye of law, since the petitioners were appointed before 21-11-1990 in the grade of Inspector/ Extension Officer, hence, the respondent No. 8 could not have been shown to be senior to the petitioners. The respondent No 12 is also evidently junior to the petitioners in the grade of Inspector/ Extension Officers. Despite the same the respondent Nos. 6, 8 and 12 have not only been given officiating promotion to the post of Functional Managers/ Assistant Directors ahead of the petitioners but they have also been shown as seniors to the petitioners in the impugned seniority list. 7. The petitioners have further stated that respondent Nos. Despite the same the respondent Nos. 6, 8 and 12 have not only been given officiating promotion to the post of Functional Managers/ Assistant Directors ahead of the petitioners but they have also been shown as seniors to the petitioners in the impugned seniority list. 7. The petitioners have further stated that respondent Nos. 9 and 10 had also been brought on deputation as Assistant Directors/ Functional Managers by order dated 01-06-1993 when they were holding the substantive post of Upper Division Assistant in their parent department. These respondents have been shown to be senior to the petitioners on the basis of their deputation posting in the borrowing department without their being any regular absorption as per the Rules. The respondent No. 10 was initially reverted to the parent department by order dated 19-07-1996 but the said order was subsequently revoked on 27-08-1996. Subsequently, the respondent Nos. 9 and 10 were absorbed in the Industries Department with effect from 15-05-1997 without following the provisions of the Rules. The respondent No. 11 was a contractual employee who was regularized in service in the post of Functional Manager w.e.f. 06-12-1997 without holding any selection process. 8. It is also the case of the petitioners that the respondent No. 14 was initially appointed as Food Technologist/ Chemist (Fruit and Vegetable Processing and Cold Storage Plant) on contractual basis by the order dated 26-10-1995. Subsequently, by the order dated 23-03-2000, the services of the respondent No. 14 had been regularized with effect from 18-02-2000 without following the due process of law. They have further stated that the respondent No. 15 was initially appointed as Assistant Director by the order dated 28-02-2002 based on the recommendation of the NPSC. However, since the post of Assistant Director was required to be filled up only by way of promotion from amongst the Inspectors/ Extension Officer having more than 7 years of experience as per the existing rules, and since there were eligible candidates available for being promoted to the post of Assistant Director at the relevant point of time, hence, the appointment of respondent No. 15 was in clear contravention of the Rules. As such, the respondent No 15 cannot claim seniority over either of the petitioners his appointment itself being in contravention of the rules. 9. As such, the respondent No 15 cannot claim seniority over either of the petitioners his appointment itself being in contravention of the rules. 9. The petitioners have further contended that the officers in the rank of Inspector of Industries/ Extension Officer have been promoted to the rank of Functional Manager/ Assistant Director (Grade-I/ Gazatted) on officiating basis. The petitioner No. 1 was given officiating promotion to the post of Functional Manager by the notification dated 23-07-2001 whereas the petitioner No. 2 was given officiating promotion to the said post by the notification dated 14-05-2002 giving effect to such promotion from 06-05-2002. However, promotion of none of such officers have been regularized by holding DPC in accordance with the provisions of the Rules. Thereafter, the respondent No. 3 to 13 had been further promoted on officiating basis to the next higher rank of Deputy Director/ General Manager under the Directorate of Industries and Commerce by issuing Government Notification dated 19-08-2011 ahead of the petitioners although many of them are junior to the petitioners in service. 10. The further case of the petitioners is that as per the relevant service rules the authorities were required to regularize the officiating promotions granted to the candidates to the rank of Functional Manager/ Assistant Director by holding DPC and thereafter prepare a inter-se seniority list of all the officers under the rank of Functional Manager/ Assistant Director (Class-I/ Gazetted) before considering the case of any of the candidates for further promotion to the rank of Deputy Director/ General Manager under the Directorate of Industries and Commerce. Notwithstanding the same the department has till date not held a single DPC but has continued with the practice of giving officiating promotion beginning from the rank of Inspector of Industries/ Extension Officers up to the rank of Director without holding any DPC. As result of the same the promotion of all the officers, all along, remained officiating in nature and consequently the inter-se seniority of the officers had never been fixed in accordance with the Rules in the cadre of Functional Manager/ Assistant Directors. 11. As result of the same the promotion of all the officers, all along, remained officiating in nature and consequently the inter-se seniority of the officers had never been fixed in accordance with the Rules in the cadre of Functional Manager/ Assistant Directors. 11. The petitioners, therefore, submit that the promotion granted by the notification dated 19-08-2011 not being based on any inter-se seniority of the eligible candidates and the final seniority list dated 26-07-2011 not having been prepared in accordance with the applicable Rules, both the notifications stood vitiated in the eye of law and are liable to be declared so by this court. 12. The respondent Nos. 1 and 2 have filed counter affidavit virtually admitting the correctness of the averments made in the writ petition on the factual count. The official respondents have admitted that no DPC has been held in the department till date but have also submitted that the seniority list dated 26-07-2011 is only a provisional list which has not been approved by the Government. The averment made in the counter-affidavit at paragraph 4 is quoted here-in below for ready reference: “4. That with regard to the statements made in paragraph 2 of the writ petition, the deponent respectfully states that vide letter No. IND/EST/S-List/99/2000 (pt) dated 26.07.11 (Annexure-1 to writ petition) in which the Director of Industries & Commerce prepared the said final seniority list of the Gazetted Officers of the Department for approval is only a proposal. However, till date the Government is yet to approve the same. Further, it may be mentioned herein that the said proposed final seniority list will be examined by the Government as and when the Nagaland Public Service Commissioner(NPSC) after through scrutiny of any anomalies will give its assent to the Government for holding the DPC. Therefore, only when all the aforesaid formalities are completed the Government will issue the final seniority through a notification. However, the aforementioned formalities have been kept in abeyance due to the pendency of several writ petitions relating to seniority in the department, the petitions being:- 1. W.P.(C) No. 209(K) 2011, Shri T. Wati Ao –Vrs- State of Nagaland & Ors. 2. W.P.(C) No. 232(K) 2011, Shri Nungshimeren –Vrs- State of Nagaland & Ors. 3. W.P.(C) No. 233(K) 2011, Shri T. Mayang Jamir –Vrs- State of Nagaland & Ors. 4. W.P.(C) No. 209(K) 2011, Shri T. Wati Ao –Vrs- State of Nagaland & Ors. 2. W.P.(C) No. 232(K) 2011, Shri Nungshimeren –Vrs- State of Nagaland & Ors. 3. W.P.(C) No. 233(K) 2011, Shri T. Mayang Jamir –Vrs- State of Nagaland & Ors. 4. W.P.(C) No. 234(K) 2011, Shri E. Jon Ezung –Vrs- State of Nagaland & Ors. Therefore, the deponent submits that the Hon’ble Court may allow the State respondents to convene the DPC so that the seniority issues may be settled.” 13. The respondent No. 15 has filed counter affidavit contending inter-alia that the respondent No. 15 had been appointed in the post of Assistant Director (Engineering) my means of direct recruitment. While denying the contention that the post of Assistant Director is required to be filled up 100% by promotion, the said respondent had contended that under the rules the appointment order issued to the respondent no 15 does not suffer from any illegality warranting interference. 14. Mr. Longjem submits that since there is a set of service rules governing the conditions of service of the employees of the Industries Department, the authorities ought to have followed the same while making the initial appointments in the department as well as at the time of considering the cases of the eligible candidates for promotion to higher grades. However, from the facts and circumstances of the case it would be evident that the departmental authorities have given a complete go bye to the rules at every stage more particularly while giving promotion and/ determining the inter-se seniority of the officer in a particular grade which has resulted into serious prejudice to the interest of the petitioners. 15. Mr. K. Sema, learned Addl. Advocate General, Nagaland submits that it is a fact that no DPC has been held in the Department till today and all the promotions had been given on officiating basis. He, agrees that unless the promotion given on officiating basis to the grade of Functional managers/ assistant Directors are regularized by holding DPC it may not be correct to say that there has been a proper determination of inter-se seniority in respect of the officers belonging to that particular cadre. Mr. He, agrees that unless the promotion given on officiating basis to the grade of Functional managers/ assistant Directors are regularized by holding DPC it may not be correct to say that there has been a proper determination of inter-se seniority in respect of the officers belonging to that particular cadre. Mr. Sema, however, submits that omission to hold the DPC and to fix the inter-se seniority in accordance with the provisions of the Rules by itself cannot invalidate the appointment made to any of the respondents inducting them to the Department. Mr. Sema, therefore, submits that if the entire matter is remanded back to the Government, then the Department can consider the entire matter in accordance with Rules by holding the DPC and thereafter, fix the seniority of the officers in the different cadres as per their entitlement under the Rules. 16. Mr. R. Iralu, learned Sr. counsel appearing for the respondent No. 15 submits that his clients has been directly appointed as Assistant Director by following the provisions of the Rules. Therefore, he submits that the there is no illegality either in the final seniority list dated 26-07-2011 nor is the notification dated 19-08-2011 in any way bad in the eye of law. He, therefore, submits that writ petition is devoid of any merit and as such the same is liable to be dismissed. 17. It is not in dispute that the conditions of services of the petitioners as well as the respondent No. 3 to 13 is governed by the “The Nagaland Industries Service Rules, 1986” (hereinafter referred to as Rules of 1986). The Rules of 1986 have been framed under the proviso of Article 309 of the Constitution of India and as such would be equally binding upon the Department of Industries and Commerce, Nagaland. It is also not in dispute that promotion given to the officers in the Department of Industries to the rank of Functional Manager/ Assistant Director as well as Deputy Director/ General Manager has all along been officiating promotion without there being any substantive promotion given to any of the officers on the basis of regular DPC. 18. The petitioners submit that as per the aforesaid Rules services would mean Nagaland Industries (Class-I) Services, the Nagaland Industries (Class-II) Services and Nagaland Industries (Subordinate) Services. Rule 5 of the Rules of 1988 provides for the method of requirement which reads as follows: “5. 18. The petitioners submit that as per the aforesaid Rules services would mean Nagaland Industries (Class-I) Services, the Nagaland Industries (Class-II) Services and Nagaland Industries (Subordinate) Services. Rule 5 of the Rules of 1988 provides for the method of requirement which reads as follows: “5. METHOD OF RECRUITMENTS: (1) Recruitment to the Service, after commencement of these rules, shall be by the following methods, viz:- (a) by direct recruitment. (b) by promotion from lower grade. (2) The quota allotted to each source of recruitment under (a) and (b) of Sub-Rule (1) of Rule 5 and the minimum education standard and other conditions for direct recruitment by competitive examinations/ selection and promotion shall be as mentioned in Schedule-II. (3) Notwith-standing anything contained in sub-Rule (1), if in the opinion of the Government the exigencies of the Service so require, the Government may, by order, after consulting the Commission, adopt any other method of recruitment to the Services other than these specified in the said sub-Rule.” 19. Rule 13 of the Rules of 1988 lays down the procedure for recruitment by promotion. Rule 13 is quoted herein below for ready reference: “13. PROCEDURE FOR RECRUITMENT BY PROMOTION: (a) Promotion to various posts in the service shall be considered by a Departmental Promotion Committee consisting of the following: (1) Chairman, Nagaland Public Service Commission or in his absence a Member of the Nagaland Public Service Commission nominated by the Chairman. ……Chairman (2) Chief Secretary to the Government of Nagaland. …….Member (3) Commissioner, Nagaland. …….Member (4) Development Commissioner, Nagaland. ……..Member (5) Secretary to the Govt. of Nagaland, Industries Deptt. …….Member (6) Director of Industries, Nagaland, Kohima. ……Member-Secy. (b) Whenever any vacancy/ vacancies arises to be filled by promotion under Rule 5(1)(b), the Head of the Department shall furnish the following particulars together with his comments, if any, to the Government:- (i) 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 vacancies available. (ii) Dossiers of the persons concerned. (iii) Annual Confidential Reports of the three consecutive proceeding years. (iv) Recommendation of the Head of the Department including Integrity certificate with the clearance of the Vigilance Commission separately in respect of each eligible candidates. The list should contain at least twice as many names as the number of existing vacancies available. (ii) Dossiers of the persons concerned. (iii) Annual Confidential Reports of the three consecutive proceeding years. (iv) Recommendation of the Head of the Department including Integrity certificate with the clearance of the Vigilance Commission separately in respect of each eligible candidates. (c) On receipt of the particulars under Sub-Rule (b) above, 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 by 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 in by promotion. Whenever a junior Officer is selected in preference to a senior one, the Committee shall record in writing the reasons of such supersession. The select list shall be valid for one year from the date of its approval by the Commission under Sub-Rule (e) below of this Rule. All vacancies arising during the period intended to be filled by promotion shall be filled up from that list. The selection shall be based on Seniority-cum-Merit in the following aspects of the candidates. (i) Personality and character; (ii) Tact, energy and general intelligence; (iii) Integrity; (iv) Performance; (v) Minimum three years records of service. (d) On receipt of the above list the Government shall forward the same to the Commission together with the documents mentioned at Sub-Rule (b) above of this Rule. (e) The Commission shall consider the list prepared by the Committee along with the other documents received from the Government or on receipt of other documents as may be called for by them and, unless it considers any change(s) necessary, approve the list. (f) If the Commission consider it necessary to made by change(s) in the list received from the Government, the Commission shall inform the Government of the change(s), proposal and after taking into account the comments, if any, of the Government may approve the list finally with such modifications, if any, as may be in their opinion, be just and proper. (g) The select list drawn under Sub-Rule (c) will be valid for one year from the date of its approval by the Commission under Sub-Rule (e) above. (g) The select list drawn under Sub-Rule (c) will be valid for one year from the date of its approval by the Commission under Sub-Rule (e) above. All vacancies arising in the grade during that period and intended to be filled by promotion shall be filled up from that list. (h) The Committee shall meet once a year to review the select list drawn under Sub-Rule (c). In the event of any great lapse in the conduct or performance of duties on the part of any candidate in the select list, the Committee may, if it so think fit, remove any such candidates from the select list.” 20. It is settled law that the officiating promotion would not confer any right upon the candidate to claim seniority unless the rules provide for otherwise. A substantive promotion can be made against an available vacancy and the same is required to be made from amongst the eligible candidates by following the provisions of the Rules. In the instants case since the criteria for promotion is seniority-cum-merit, the cases of the eligible candidates obviously cannot be considered under the rules unless the inter-se-seniority of the officers belonging to the feeder cadre is first determined. Such seniority would have to be fixed by adhering to the provisions of Rule 18 of the Rules of 1986, which, inter-alia provides that seniority in the grade is to be normally determined with reference to the date of joining in that grade. As per Rule 18(a)(i) the seniority of the promotes who are promoted under Rules 13 and 14 of the Rules is required to be determined in order of preference given by the Committee. The term committee in the context of the Rules would naturally imply the DPC. Therefore, in the absence of DPC having regularized the promotion of the candidates in a particular cadre, the inter-se-seniority of the candidates in that cadre cannot be finalized. Consequently, the question of further promotion to the next higher grade also cannot arise under the Rules. Needless to mention here that while determining the seniority of a person in a cadre, the date on which the candidate had been legitimately borne in the cadre would be of utmost significance. 21. Consequently, the question of further promotion to the next higher grade also cannot arise under the Rules. Needless to mention here that while determining the seniority of a person in a cadre, the date on which the candidate had been legitimately borne in the cadre would be of utmost significance. 21. From the facts and circumstances of this case it is evident that the department of Industries had resorted to absolute ad-hocism in the matter of promotion of departmental candidates notwithstanding the facts that there were a set of Service Rules available since 15-11-1986. Such ad-hocism would always carry the prospect of multiplicity of litigations besides having a demoralizing effects upon the employees. Such a situation neither serves the interest of the State nor the employees and is best avoided. Be that as it may. In view of the stand taken by the official respondents to the effect that the seniority list dated 26-07-2011 is only a proposal which is yet to be approved by the Government and that the Government is ready to hold DPC as per the rules for determining the seniority issues, interference with the impugned seniority list is not called for at this stage. 22. Further, the Notification dated 19-8-2011 being an order granting officiating promotion dehors the Rules, the same cannot confer any right upon any of the candidates named therein. The right to be considered for regular promotion to the post of Deputy Director/ General Manager would depend upon fulfillment of the eligibility criteria under the Rules based on the seniority position of the candidates in the feeder grade of Functional Manager/ Assistant Director, which seniority position is yet to be finalized by the Departmental authorities. Therefore, the officiating promotion granted to the respondent Nos. 3 to 13 by the order dated 19-08-2011 being a temporary arrangement, the said notification also does not call for any interference for the present, more so when the petitioners have also been given officiating promotion to the post of Deputy Director/ General Manager. 23. Having regard to the facts and circumstances of the case and in view of the stand taken by respondent Nos. 23. Having regard to the facts and circumstances of the case and in view of the stand taken by respondent Nos. 1 and 2 as noticed above, I am of the view that without expressing any opinion on the merit of the claims and counter-claims made by the parties, ends of justice will be met if this writ petition is disposed of with the following directions:- (i) The Departmental authorities would now convene DPC for the purpose of making recommendations for regularizing the officiating promotions made to the grade of Functional Managers/ Assistant Director as per the entitlement of the respective candidates and by strictly adhering to the Rules of 1986. (ii) On the basis of the DPC recommendations, the inter-se seniority of the officers in the grade of Functional Managers/ Assistant Directors would be finalized by bearing in mind the mandate of the Rules 18 of the Rules of 1986. (iii) The steps mentioned in sub-paras (i) and (ii) above be completed within a period of 6 (six) months from today. (iv) Pending completion of the aforementioned steps, no regular promotion would be made to the grade of Deputy Director/ General Manager under the Directorate of Industries and Commerce, Government of Nagaland. With the above observation this writ petition stands disposed of.