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Gauhati High Court · body

2015 DIGILAW 331 (GAU)

Moanungden v. State of Nagaland & Ors.

2015-03-18

L.S.JAMIR

body2015
1. Heard Mr. Justin Magh, learned counsel appearing for the petitioner as well as Ms. Vilika Chishi, learned Government advocate for the State respondents, Mr. R. Iralu, learned senior counsel assisted by Ms. Alemla, learned counsel for private respondent No.5, Ms. Esther, learned counsel for respondent No.4 (NPSC) and Mr. Renpemo, learned counsel for pro forma respondent Nos. 1 and 2. 2. Mr. Justin, learned counsel for the petitioner submits that the petitioner was appointed temporarily on contract basis to the post of Foreman against existing vacancy in the Nagaland Civil Secretariat, Transport Pool Kohima by an order dated 25.3.2003. The said appointment was subject to regularization by the Nagaland Public Service Commission ('NPSC')- Thereafter, his service was extended from time to time and was subsequently regularized as Foreman w.e.f. 12.5.2009 by notification dated 11.6.2009. The said regularization was done on the basis of recommendation made by the committee constituted for conducting suitability test in respect of the petitioner. While the petitioner was functioning as such, one post of Assistant Mechanical Engineer became vacant due to the retirement of one Shri I. Nihokhe and, therefore, the petitioner made an application on 17.11.2009 requesting for promotion to the said post. While the petitioner was awaiting a positive response from the respondents, the private respondent No.5 was appointed on contract basis to the said post of Assistant Mechanical Engineer vacated due to the retirement of Shri I. Nihokhe. The said appointment of the private respondent No.5 on contract basis was made by a notification dated 17.3.2010 for a period of one year. The appointment of private respondent No.5 was thereafter extended by a notification dated 16.3.2011 for a period of one year w.e.f. 18.3.2011 to 17.3.2010 or till the post is filled up on regular appointment through NPSC whichever is earlier and thereafter the contract service of private respondent No.5 was further extended from time to time. Being aggrieved, the petitioner made a representation dated 12.10.2012 requesting the respondents to consider his case for promotion. However, such representation was not considered and instead the contract service of the private respondent No.5 continued to be extended from time to time. Being aggrieved, the petitioner made a representation dated 12.10.2012 requesting the respondents to consider his case for promotion. However, such representation was not considered and instead the contract service of the private respondent No.5 continued to be extended from time to time. Being apprehensive that the service of the private respondent would be regularized and thereby affect his promotional avenue, the petitioner submitted another representation on 14.3.2013 requesting the respondents not to extend the contract service of the private respondent No.5 and further prayed for considering his case for promotion. The learned counsel for the petitioner also submits that there is no service rules in the department. However, in the past, the respondents had promoted one Nihokhe, Foreman to the post of Assistant Mechanical Engineer (Class-I Gazatted) on the reversion of one Shri Zuvcho Vero, Assistant Mechanical Engineer to his parent department. The said Shri Nihokhe Sema had continued to hold the post of Assistant Mechanical Engineer till his retirement. The learned counsel for the petitioner also submits that the petitioner is holding a degree in Mechanical Engineering and, therefore, he is qualified to hold the post of Assistant Mechanical Engineer. However, without considering the case of the petitioner, the respondents had instead appointed private respondent No.5 on contract basis. 3. Mr. Justin Magh, learned counsel for the petitioner submits that the department has framed draft rules in the year 2013. However, the same is yet to be approved and finalized. He submits that as per the draft rules, the post of Assistant Mechanical Engineer shall be filled up by promotion from amongst the Foreman/JTA provided that they have completed probation/qualifying service of 3 years in that grade on the first day of that year on merit-cum-seniority basis and provided the Foreman/JTA has the requisite qualification. Being aggrieved by non-consideration of the case of the petitioner for promotion to the post of Assistant Mechanical Engineer and also due to the appointment of private respondent No.5 on contract basis to the post of Assistant Mechanical Engineer and the subsequent notification issued thereafter extending the contract service of the private respondent No.5, the petitioner had filed the present writ petition for a direction to the respondents to consider his case for promotion to the post of Assistant Mechanical Engineer and to set aside the contract appointment of the private respondent No.5. 4. Ms. 4. Ms. Vilika Chishi, learned Government advocate appearing on behalf of the official respondents submits that after the retirement of the said Nihokhe, Assistant Mechanical Engineer w.e.f. 31.10.2009, the department has received the application for promotion by the petitioner as well as application for appointment submitted by the private respondent No.5. She submits that regularization order of the petitioner clearly indicates in at his seniority as Foreman would be counted w.e.f. 12.5.2009. Therefore When the petitioner made his representation on 17.11.2009 it was considered that he was holding the post of regular Foreman only for about 6 months. Therefore, after consideration of the said applications, the private respondent No.5 was appointed on contract basis to the post of Assistant Mechanical Engineer. She submits that the department does not have service rules and, therefore, the claim of the petitioner praying for promotion could not be considered. While acknowledging that there has been an incident in which one person was promoted from the post of Foreman to the post of Assistant Mechanical Engineer, she submits, that such cannot be set as a precedent to allow the petitioner to be promoted as Assistant Mechanical Engineer. She also submits that the case of private respondent No.5 has already been considered by a Screening Committee and his name has been recommended for regularization to the post of Assistant Mechanical Engineer. 5. Mr. R. Iralu learned senior counsel appearing for private respondent Xo.5 submits at the outset that the writ petition is not maintainable inasmuch as the petitioner has no locus standi to approach this court invoking article 226 of the Constitution of India as the petitioner has no existing legal right nor has the petitioner accrued any right for being promoted to the post of Assistant Mechanical Engineer. He submits that no enforceable legal or fundamental right has accrued to the petitioner and, therefore, the petitioner cannot allege infringement of any fundamental right belonging to him. He submits that no enforceable legal or fundamental right has accrued to the petitioner and, therefore, the petitioner cannot allege infringement of any fundamental right belonging to him. He also submits that it is already settled legal position that in matter relating to creation and abolition of posts, formation and structuring/re-structuring of cadres prescribing the source/mode of recruitment and qualification, etc., falls within the domain of the employer and, therefore, what steps should be taken for improving efficiency of the department is also the preserve of the employer and this court cannot sit in appeal over the judgment of the employer and further give a direction that a particular post be filled up in a particular manner more particularly when there are no service rules in the department. He submits that the promotion of one Shri Nihokhe to the post of Assistant Mechanical Engineer on reversion of Zuvcho Vero to his parent department was a solitary incident and that would not create a right on the petitioner to claim for promotion more particularly in the absence of rules. He also submits that the private respondent No.5 was appointed in the month of March 2010 and the petitioner had filed the present writ petition only in the month of November, 2013 and, therefore, there is delay and laches on the part of the petitioner and on this ground also the writ petition deserves to be dismissed. The learned senior counsel submits that on the basis of the existing norms and regulations, the suitability test of the private respondent No.5 was conducted by a duly constituted committee on 26.8.2013 and his case has been recommended for regularization. Further, he submits that the private respondent No.5 is also holding a degree of Bachelor of Technology in Mechanical Engineering and, therefore, he is qualified to hold the post. Countering the submissions made by the learned counsel for the petitioner, Mr. R. Iralu, learned senior counsel submits that the draft rules has not been finalized till date and, therefore, in the absence of any concrete rules, the petitioner cannot take the help of the draft rules for claiming promotion to the post of Assistant Mechanical Engineer at this stage. Countering the submissions made by the learned counsel for the petitioner, Mr. R. Iralu, learned senior counsel submits that the draft rules has not been finalized till date and, therefore, in the absence of any concrete rules, the petitioner cannot take the help of the draft rules for claiming promotion to the post of Assistant Mechanical Engineer at this stage. In that view of the matter, learned senior counsel submits that since no indefeasible and enforceable legal right exist in favour of the petitioner, there can be no mandamus or any writ that can be issued in favour of the petitioner and submits that the present writ petition should be dismissed. 6. In reply, the learned counsel for the petitioner submits that non-consideration of the case of the petitioner for promotion to the post of Assistant Mechanical Engineer is arbitrary, unfair and unconstitutional inasmuch as the private respondent No,5 is an irregular appointee and such irregular appointee cannot be allowed to block the promotional avenue of the petitioner who is a regular member of service. He also submits that by office notification dated 22.1.2004 issued by the NPSC, it is provided that all departments having vacant post carrying the scale of Rs.4125-6475 and above are required to submit requisition to the NPSC for direct recruitment. This has not been followed by the respondents and, therefore, the appointment of private respondent No.5 is against the said notification dated 22.1.2004. He also submits that the admitted position that Shri Nihokhe was promoted to the post of Assistant Mechanical Engineer earlier should be accepted principle for allowing the petitioner to be promoted to the said post. More particularly, when there is no rule, the respondents are bound to act fairly and as the petitioner was qualified for being considered to be promoted, there was no necessity on the part of the respondents to have appointed the private respondent No.5 on contract basis to the post of Assistant Mechanical Engineer. 7. I have considered the submissions forwarded by the learned counsel for the parties. 8. It is an admitted position that there are no service rules governing the service of the petitioner in the department. Further, as appended to the counter affidavit filed by private respondent No.5, the case of the respondent No.5 was considered on 29.8.2013 by the department regarding his suitability to the post. 8. It is an admitted position that there are no service rules governing the service of the petitioner in the department. Further, as appended to the counter affidavit filed by private respondent No.5, the case of the respondent No.5 was considered on 29.8.2013 by the department regarding his suitability to the post. The committee after examining the case of private respondent No.5 had recommended for regularization to the post of Assistant Mechanical Engineer. This has not been denied by the petitioner. Thereafter, the case of the private respondent No.5 was put up to the Department of P&AR for regularization of his service. 9. The recommendation of the committee after conducting suitability test for regularization of the private respondent No.5 to the post of Assistant Mechanical Engineer has not been challenged before this court. The learned counsel for the petitioner submits that such recommendation were not known to the petitioner and, therefore, they were not in a position to challenge the said recommendation. He further submits that as the appointment of private respondent No.5 on contract basis is under challenge, therefore, the recommendation of private respondent No.5 for regularization by the said committee being consequential in nature is not required to be challenged inasmuch as if the contract appointment of private respondent No.5 is interfered with then the other consequential action taken by the State respondents would automatically become invalid. This court finds no force in the submissions made by the learned counsel for the petitioner inasmuch as the suitability of the private respondent No.5 was done pursuant to the notification dated 23.8.2007 and further after conducting such suitability test, the committee had recommended for his regularization. In the absence of such challenge to the recommendation made by the committee, this court is not in a position to grant any relief to the petitioner. 10. Another point of note is that the appointment of the private respondent NTo.5 on contract basis to the post of Assistant Mechanical Engineer was made by notification dated 17.3.2010. The petitioner has preferred to challenge the said notification dated 17.3.2010 only through this writ petition which was filed in the month of November 2013. This court is of the considered opinion that there is delay in challenging the contract appointment of the private respondent No.5. The petitioner has preferred to challenge the said notification dated 17.3.2010 only through this writ petition which was filed in the month of November 2013. This court is of the considered opinion that there is delay in challenging the contract appointment of the private respondent No.5. In the case of Roshan Lal and Others v. International Airports Authority of India and Others, 1980 (Supp) SCC 449, the hon'ble Supreme Court has held at paragraph 4 as under : "4. One of the principal submissions made by Smt. Shymla Pappu, learned counsel for the petitioners was that the appointment of respondents as Airport Officers (Operations) was made at a time when there was no sanction for such posts and, therefore, their appointment was illegal. Other reasons were also advanced in support of the claim that the respondents were irregularly appointed as Airport Officers. We are afraid that it is rather late in the day for the petitioners to question the appointment of the respondents as Airport Officers (Operations). The respondents were appointed as Airport Officers in 1975 and the present writ petitions were filed in 1978. We do not think we will be justified in reopening the question of the legality of the appointment of the respondents as Airport Officers several years after their appointment. We also notice that the prayer in the writ petitions also is confined primarily to the seniority list and the consequences flowing from the seniority list." 11. This being the position of law, this court is also of the considered opinion that it would not be proper at this stage to interfere with contract appointment of the private respondent No.5 which was made as early on 17.3.2010 and more particularly, when he has been already considered by a committee for his suitability for regularization to the post of Assistant Mechanical Engineer and that the said committee having already recommended the case of private respondent No.5 for regularization to the said post. 12. In the facts and circumstances of the case, this court is of the considered opinion that there is no merit in the writ petition and the same is accordingly dismissed. 13. No cost.