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2015 DIGILAW 1155 (GAU)

Chonbenodyuo v. State of Nagaland

2015-09-08

L.S.JAMIR

body2015
JUDGMENT AND ORDER L.S. Jamir, J. - The petitioner No. 1 was appointed as Assistant Research Officer (in short ’ARC)') by Notification dated 31.08.2012. The petitioner Nos. 2, 3 and 4 were also appointed as Women Resource Development Officer (in short 'WRDO') by Notification dated 31.08.2012. All the appointment of the petitioners were made under the Women Resource Development Department after being recommended by the Nagaland Public Service Commission (in short' NPSC). The post of ARO and WRDO are equivalent posts. While the petitioners were serving as ARO and WRDO, a resultant vacancy of Assistant Director arose in the Department. The petitioners therefore made representation requesting the concerned authority to fill up the post by way of promotion. However, instead of considering the case of the petitioners for promotion to the post of Assistant Director, the respondents had appointed the private respondent No.6 to the post of Assistant Director on deputation. Being aggrieved, the present writ petition. 2. Heard Mr. C.T. Jamir, learned senior counsel assisted by Mr. N. Longkumer, learned counsel for the petitioners. Also heard Mr. K. Sema, learned Additional Advocate General. Nagaland assisted by Mr. N. Angami, learned Government Advocate appearing for the State respondents and Mr. Imti Longjem, learned counsel appearing for the respondent No.5 i.e the NPSC as well as Mr. Taka Masa, learned senior counsel assisted by Mr. Arenlong, learned counsel appearing for the private respondent No.6. 3. Mr. C.T. Jamir, learned senior counsel appearing on behalf of the petitioners submits that the Service Rules of 2006 was published in the gazette on 15.06.2006 and came into force on the same date. He submits that the petitioners are from the Junior Grade, Group-B and the next promotional post is to the post, of Assistant Director. Under the Service Rules of 2006, the post of Assistant Director is 100% by promotion and Schedule II to the Service Rules of 2006 provides that the post of Assistant Director shall be filled by promotion from amongst the confirmed members of the Service who had rendered not less than 6 years of service in Junior Grade (Group B) (viz. STCPC). All the petitioners in the present writ petition are confirmed members of the service and therefore they are eligible for promotion to the post of Assistant Director. learned senior counsel for the petitioners submits that the Government of Nagaland has enacted. STCPC). All the petitioners in the present writ petition are confirmed members of the service and therefore they are eligible for promotion to the post of Assistant Director. learned senior counsel for the petitioners submits that the Government of Nagaland has enacted. The Nagaland Retirement from Public Employment (Second Amendment) Act, 2009 (in short The Act of 2009) and the said Act of 2009 provides that the State employees will retire from public employment on attaining the age of 60 years of age or 35 years length of service whichever is earlier. While implementing the said Act, certain dislocation and gaps arose in the administrative functioning in all the Departments and therefore in order to fill up the lacunae, the State respondents had issued an Office Memorandum dated 20.07.2009 formulating a policy for relaxation of qualifying years for officiating promotion of officers to the next higher grade up to minimum of one year in each grade where there are vital gaps in the hierarchy of certain Departments as a result of the implementation of the Act of 2009. However, on noticing that certain Departments had misused the Office Memorandum dated 20.07.2009, the State respondents had issued another Office Memorandum dated 18.05.2012 indicating that the benefits of one time relaxation prescribed in the Office Memorandum dated 20.07.2009 cannot be given without prior consultation with the P & AR Department. Thereafter, the State respondents had again issued another Office Memorandum dated 17.12.2014 superseding the earlier Office Memorandum dated 20.07.2009 and 18.05.2012. By the said Office Memorandum dated 17.12.2014, the State respondents have laid down certain conditions under Clause 4 therein with regard to relaxation of qualifying length of service for promotion. 4. Mr. C.T. Jamir, learned senior counsel for the petitioners submits that in 2013 due to the retirement in the higher echelon of service and consequent promotion to the higher grade in the Department, a vacancy of Assistant Director arose and in view of the Office Memorandum dated 20.07.2009 and 18.5.2012, the petitioners became eligible to be considered for promotion to the post of Assistant Director. The petitioners in the meantime, came to learn that the State respondents were intending to fill up the said post of Assistant Director by way of deputation and therefore they made a representation on 22.09.2014 before the respondent No.4 requesting not to fill up the said post of Assistant Director by way of deputation and that to consider the case of the petitioners for promotion to the said post. Further, as the petitioner No. 1 was the senior most amongst the petitioners, he has submitted an application on 24.09.2014 requesting the authority for consideration of his case for promotion. How ever, the respondents failed to address the representation dated 22.09.2014 and also the application of the petitioner No. 1 submitted on 24.09.2014. Accordingly, the petitioners submitted another representation dated 05.05.2015 requesting the respondents to look into their grievances. However, the State respondents instead of considering the representation made by the petitioners, had instead issued the impugned Notification dated On.05.2015 appointing the respondent No. 6 on deputation to the post of Assistant Director. He submits that the impugned Notification dated 06.05.2015 was issued ignoring the claims of the petitioners and also in violation of the Service Rules of 2006 as well as the prescribed procedures laid down for filling up of posts on deputation as provided by the Office Memorandum dated 21.08.04. The impugned Notification dated 06.05.2015 appointing the respondent No. 6 on deputation was issued without first consulting the respondent No. 5 i.e the NPSC. No advertisement was made with regard for appointment to the post of Assistant Director on deputation and there was no screening board constituted for selection for appointment to the said post of Assistant Director as stipulated under the Office Memorandum dated 21.08.2004. It is also submitted that the respondent No.6 had not applied for the post of Assistant Director to be filled up on deputation and therefore in the absence of any application, the respondent No. 6 could not have been appointed. Further submissions is made that there is ho provision under the Service Rules of 2006 for appointment on deputation to the post of Assistant Director. It is submitted that the petitioners after being appointed in the year 2012 were confirmed by a Notification dated 22.10.2014. Further submissions is made that there is ho provision under the Service Rules of 2006 for appointment on deputation to the post of Assistant Director. It is submitted that the petitioners after being appointed in the year 2012 were confirmed by a Notification dated 22.10.2014. He further submits that though the Service Rules of 2006 provides for rendering not less than 6 (six) years of service in Junior Grade (Group-B), however as the respondents had issued the Office Memoranda dated 18.05.12 and 20.7.09, the petitioners became eligible for consideration for promotion to the post of Assistant Director as the petitioners were appointed in the year 2012 and subsequently confirmed thereafter. As such, they have served for nearly three years and therefore the respondents ought to have considered the case of the petitioners for promotion. However, the respondents had adopted a policy of pick and choose by appointing the respondent No. 6 on deputation to the post of Assistant Director in violation of all laid down procedures more particularly the Service Rules of 2006 as well as the Office Memorandum dated 21.08.2004. In that view of the matter, learned senior counsel for the petitioners submits that the impugned Notification dated 06.05.2015 should be struck own and the respondents should be directed to fill up the vacant post of Assistant Director by promotion from amongst the petitioners who are holding the feeder post to the post of Assistant Director. 5. Mr. K. Sema, learned Additional Advocate General, Nagaland at the outset submits that the petitioners have no locus standi to challenge the appointment of respondent No. 6 on deputation inasmuch as they are not qualified for being promoted to the post of Assistant Director. He also submits that by Office Memorandum dated 17.12.2014, it is clearly provided that the said relaxation of qualifying length of service for promotion would not be applicable for those officers in the entry level/direct recruitment posts as the incumbent holding these posts are required to gain adequate experience in terms of prescribed length of qualifying service before being promoted to the next higher level. That being the position, the petitioners who were appointed as ARO and WRDOs by direct recruitment through the NPSC were not eligible for consideration in view of Office Memorandum dated 17.12.2014 and also as per the Service Rules of 2006. That being the position, the petitioners who were appointed as ARO and WRDOs by direct recruitment through the NPSC were not eligible for consideration in view of Office Memorandum dated 17.12.2014 and also as per the Service Rules of 2006. He also submits that the Service Rules of 2006 more particularly Rule 6 (iii) provides that if qualified and eligible candidates for recruitment to the post from any source of recruitment specified under Sub-rule (i) are not available in the course of recruitment, the Government may fill up the post through any other source or method of recruitment with the prior approval of the commission. In the present case, as there were no eligible candidates from the feeder post, the respondents had taken the recourse to Rule 6 (iii) and had thereafter appointed the respondent No.6 after consultation and approval of the NPSC. Therefore, no constitutional, statutory' or legal rights of the petitioners have been infringed inasmuch as they are not eligible for consideration and therefore the present writ petition is devoid of any merits and is liable to be dismissed. Learned Additional Advocate General, Nagaland further submits that the respondent No. 6 was not the sole applicant and that there were other four applicants for the post of Assistant Director. Initially, the respondent No. 3 had written to the respondent No. 2 by letter dated 25.09.2014 and forwarded the names of four applicants for filling up the post of Assistant Director, Class-I Gazetted on deputation. Thereafter, the respondent No. 6 had also applied for the said post and accordingly his name was also forwarded. After considering the credentials of the five applicants, the respondents had decided to appoint the respondent No.6 on deputation and the same was also done after taking the approval of the NPSC. In that view of the matter, he submits that no interference is required in the impugned Notification dated 06.05.2015 and the writ petition should be dismissed. He also places reliance in the case of (i) Dr M. Laitphlang & Ors. v. State of Meghalaya & Ors. reported in 2004 (1) GLT 308, (ii) Mina Ram Kumar v. State of Assam, reported in 2014 (2) GLT 480, (iii) Ayaaubkhan Noorkhan Pathan v. State of Maharashtra & Ors., reported in (2013) 4 SCC 465 , (iv) Union of India (UOI) & Ors. v. State of Meghalaya & Ors. reported in 2004 (1) GLT 308, (ii) Mina Ram Kumar v. State of Assam, reported in 2014 (2) GLT 480, (iii) Ayaaubkhan Noorkhan Pathan v. State of Maharashtra & Ors., reported in (2013) 4 SCC 465 , (iv) Union of India (UOI) & Ors. v. Soma sundaram Viswanath and Ors, reported in AIR 1988 SC 2255 (v) R. Abdulla Rowther v. The State Transport Appellate Tribunal Madras & Ors., reported in AIR 1959 SC 896 and in the case of Runu Devi v. State of Assam, reported in 2009 (2) GLT 679. 6. Mr. ImtiLongjem, learned counsel appearing for the respondent No. 5 i.e. the NPSC while endorsing the submission made by the learned Additional Advocate General. Nagaland submits that the petitioners has no locus standi to challenge the appointment of the respondent No.6 on deputation inasmuch as, they are not eligible or qualified for filling up the post of Assistant Director either under the Service Rules of 2006 or the various Office Memoranda issued by the State respondents relaxing qualifying length of service for promotion. The State respondents had written to the respondent No.5 by letter dated 15.04.2015 seeking approval for appointment of Assistant Director on deputation basis under the Department of Women Resource Development. Thereafter, after considering Rule 6 (iii) of the Service Rules of 2006 as well as the Office Memoranda, the respondent No.5 had given its clearance for appointment of respondent No.6 on deputation to the post of Assistant Director for a period of two years with effect from the date of taking over charge. Therefore, all required formalities and procedures were carried out before issuance of the impugned Notification dated 06.05.2015 and therefore as no rights of the petitioners has been infringed, the writ petition should be dismissed. 7. Mr. Taka Masa, learned senior counsel appearing (or the respondent No.6 also adopts the submissions made by the learned Additional Advocate General, Nagaland and further submits that the petitioners were born in the cadre only when the Service Rules of 2006 was amended and published in the Gazette on 15.04.2015. Prior to the amendment of the Service Rules of 2006, the post of ARO and WDRO does not figure in the Service Rules of 2006. Prior to the amendment of the Service Rules of 2006, the post of ARO and WDRO does not figure in the Service Rules of 2006. He submits that the vacancy of Assistant Director arose prior to the amendment of the Service Rules of 2006 and all decisions and steps were taken prior to the amendment of the Service Rules of 2006. He further submits that the representation filed by the petitioners has no legal basis inasmuch as, at that relevant point of time, they had no legal basis to claim for promotion as they were not born in the cadre. Learned senior counsel for the respondent No. 6 submits that Rule 23 of the Service Rules of 2006 provides only for relaxation of the conditions of service and not for the conditions of recruitment. In that view of the matter, learned senior counsel for the respondent No.6 submits that the writ petition is devoid of any merit and therefore the same is liable to be dismissed. Learned senior counsel for the respondent No. 6 also places reliance in the case of Prestige Lights Ltd. v. State Bank of India. reported in (2007) 8 SCC 449 . 8. In reply, Mr. C.T. Jamir, learned senior counsel for the petitioners submits that the Department has also failed to certify that no suitable candidate from the feeder post is available or likely to be available in the near future for promotion as stipulated under the Office Memorandum dated 21.08.2004. The respondents had also failed to follow Rule 7 of the Service Rules of 2006 which provides for recruitment by promotion. As the appointment of respondent No.6 on deputation has adversely effected the rights of the petitioners for the future promotion, the writ petitioners have locus standi to file the present writ petition by challenging the appointment of respondent No.6 on deputation as well as to claim for consideration for their promotion to the said vacant post of Assistant Director. 9. I have considered the submissions forwarded by the learned counsel appearing for the parties. 10. The Service Rules of 2006 was notified in the Nagaland Gazetted on 05.06.2006. Rule 6 of the Service Rules of 2006 reads as under:- “6. Method of Recruitment: (i) Recruitment to the service shall be made by either of the following methods:-. (a) By promotion of persons from lower grade in terms of Rule-7. 10. The Service Rules of 2006 was notified in the Nagaland Gazetted on 05.06.2006. Rule 6 of the Service Rules of 2006 reads as under:- “6. Method of Recruitment: (i) Recruitment to the service shall be made by either of the following methods:-. (a) By promotion of persons from lower grade in terms of Rule-7. (b) By direct recruitment through the Commission as prescribed under Rule-8. (ii) The quota allotted to each source of recruitment under clause (a) and (b) of sub-rule 6 (i) and the minimum educational qualifications, length of service and other conditions of eligibility for direct recruitment and promotion shall be as prescribed in Schedule-II (iii) If qualified and eligible candidates for recruitment to the posts from any source of recruitment specified under sub-rule (i), above are not available in the course of recruitment, the Government may fill up the posts through any other source or method or recruitment with the prior approval of the Commission." Again, rule 23 of the Service Rules of 2006 also reads as under:- “23. Power to Relax:- Where undue hardship is likely to be cause to any member of the service by the application of any of this Rules, the Government shall have the power to relax the application of that rules in respect of that member for good and sufficient reason, which shall be without prejudice to the interest of any other member of the service." 11. This Court has also considered the Office Memorandum dated 20.07.2009, 18.05.2012 and 17.12.2014 which were issued by the State respondents after enforcement of the Act of 2009. The Office Memoranda dated 20.07.2009 and 18.05.2012 were superseded by Office Memorandum dated 17.12.2014. The relevant portion of the Office Memorandum dated 17.12.2014 is also extracted herein below:- “4. The position has been further reviewed by the Government as gaps in administrative hierarchy of Departments may continue to occur under the Nagaland Retirement from Public Employment (Second Amendment) Act, 2009 (for example, such gaps could occur if officials recruited in a particular batch or year retire together on completing 35 years of public employment). The position has been further reviewed by the Government as gaps in administrative hierarchy of Departments may continue to occur under the Nagaland Retirement from Public Employment (Second Amendment) Act, 2009 (for example, such gaps could occur if officials recruited in a particular batch or year retire together on completing 35 years of public employment). It has been decided, therefore, to continue with the policy of relaxation of qualifying length of service for promotions, subject to the following conditions: (i) The relaxation of the prescribed qualifying length of service for promotions will be permitted only for those Government employees who have been confirmed in service and have been occupying the post on regular capacity for a minimum period of 1 (one) year. It shall not be available in entry-level/direct recruitment posts as the incumbents holding these posts are required to gain adequate experience in terms of prescribed length of qualifying service before being promoted to the next higher level. (ii) Relaxation of prescribed qualifying length of service for promotions can be permitted on more than one occasion only on completion of minimum service of 1 (one ) year in the respective post by the Government employee and regularisation of the previous officiating promotion by the Departmental Promotion Committee (DPC) (iii) The relaxation of prescribed qualifying length of service for promotions will be permitted only on the basis of prior clearance of P & AR Department in each case. Failure to obtain prior clearance of P & AR Department will be viewed seriously." 12. A consideration of the Service Rules of 2006 more particularly, Schedule-II thereto would indicate that for filling up of the post of Assistant Director (Junior Grade. Group-A) is by way of 100% promotion from amongst the confirmed members of the service who had rendered not less than six years of service in Junior Grade (Group-B) Superintendent (TCPC) i.e Superintendent Training-cum-Production Centre. This Court has also considered Rule 6 of the Service Rules of 2006 more particularly. Rule 6 (iii) which provides that if qualified and eligible candidates for recruitment to the posts from any source of recruitment are not available, the Government may fill up the posts through other source or other methods of recruitment with the prior approval of the Commission i.e NPSC. Rule 6 (iii) which provides that if qualified and eligible candidates for recruitment to the posts from any source of recruitment are not available, the Government may fill up the posts through other source or other methods of recruitment with the prior approval of the Commission i.e NPSC. It is not disputed that the petitioners were appointed as ARO and WRDO on the recommendation of the NPSC by way of direct recruitment in the year 2012. Considering the Service Rules of 2006, though the petitioners may have been confirmed in the service, they are still not eligible for promotion to the post of Assistant Director inasmuch as, they have completed only three years of service whereas, the Rules provides for six years of service in Junior Grade (Group-B). 13. Considering the Office Memorandum dated 17.12.2014, the relevant portion of which has been already extracted herein above would indicate that relaxation of qualifying length of service for promotion is not applicable in the entry level/direct recruitment posts for reasons as already indicated in the said Office Memorandum. Here too, the petitioners do not come under the preview of the said Office Memorandum dated 17.12.2014 inasmuch as, it is not disputed that their first entry into service under the Department of Women Resource Development is to the post of ARO and WRDO on the recommendation of the NPSC which is the entry level/direct recruitment post. Therefore, taking into consideration either the Service Rules of 2006 or the Office Memorandum dated 17.12.2014, the petitioners do not qualify for promotion to the post of Assistant Director under the Department of Women Resource Development. In the case of Anand Sharad Chandra Oka v. University of Mumbai, reported in (2008) 5 SCC 217 , the Hon’ble Supreme Court has held that if a person claiming relief is not eligible as per requirement, than he can not be said to be a person aggrieved regarding the election or the selection of other persons. 14. As the petitioners are not eligible for promotion either under the Service Rules of 2006 or the Office Memorandum dated 17.12.2014, this Court is therefore of the considered opinion that it was well within the competence of the State respondents to have invoked Rule 6 (iii) of the Service Rules of 2006. 14. As the petitioners are not eligible for promotion either under the Service Rules of 2006 or the Office Memorandum dated 17.12.2014, this Court is therefore of the considered opinion that it was well within the competence of the State respondents to have invoked Rule 6 (iii) of the Service Rules of 2006. Further, a consideration of the affidavit-in-opposition filed by the respondent No. 5 would clearly indicate that the appointment of respondent No. 6 was made only after the clearance was given by the respondent No. 5 for appointment of respondent No. 6 on deputation to the post of Assistant Director. This Court has also considered the authorities relied upon by the learned Additional Advocate General, Nagaland as well as by the learned senior counsel for the respondent No.6. After considering the matter in its entirety, this Court is of the considered opinion that as the petitioners are not eligible for promotion either under the Service Rules of 2006 or the Office Memorandum dated 17.12.14, none of the petitioners legal or statutory rights have been infringed and therefore they have no locus standi to challenge the appointment of respondent No. 6 on deputation to the post of Assistant Director. In K. Manjusree v. State of A.P, reported in (2008) 3 SCC 512 , the Hon’ble Supreme Court has also held that the applicant before the High Court could not challenge the appointment of a person as she was in no way aggrieved, for she herself could not have been selected by adopting either method. Having already came to the conclusion that the petitioners has no locus standi, this Court does not intend to enter into the issue as to whether the appointment of respondent No. 6 has been done in terms of the Office Memo-randum dated 21.08.2004 inasmuch as, if there is any challenge with regard to violation of the said Office Memorandum dated 21.08.2004, the same can be done only by a person who has a legally enforceable right to challenge the same. In that view of the matter, there is no merit in the present writ petition and the same is accordingly dismissed. 15. No costs.