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2017 DIGILAW 1137 (GAU)

Rongsentemjen v. State of Nagaland

2017-08-19

L.S.JAMIR

body2017
JUDGMENT : L.S. Jamir, J. This writ petition is directed against the order dated 17.5.2011 by which the respondent No. 3 along with seven others were promoted to the rank of S.I and also for a direction to the respondents to consider the case of the petitioner for promotion to the post of Sub-Inspector from the date similarly situated persons were promoted. 2. This writ petition was initially heard and disposed of by order dated 10.5.2013 whereby the impugned order dated 17.5.2011 was set aside. The State respondents preferred an appeal against the order dated 10.5.2013 and the said appeal was registered as WA No. 3(K) of 2014. During the pendency of the appeal, the State respondents again complied with the order dated 10.5.2013 by passing the order dated 13.3.2014 by which the promotion of the respondent No. 3 effected by the order dated 17.5.2011 was cancelled and the petitioner was promoted to the rank of SI (RM). Accordingly, WA No. 3(K) of 2014 was closed by order dated 3.4.2014. 2A. The respondent No. 3 also filed a writ appeal against the order dated 10.5.2013 and the same was registered as WA No. 10 (K) of 2014. The said appeal was disposed of on 17.10.2016 by setting aside the order dated 10.5.2013 holding that the writ petition should be reconsidered again after hearing the present respondent No. 3 as service of notice on the present respondent No. 3 was not properly effected. The order dated 17.10.2016 passed in WA No. 10(K) of 2014 further provided that the order dated 13.3.2014 issued by the State respondents shall be subject to the outcome of the present writ petition. 3. Heard Mr. Taka Masa, learned senior counsel assisted by Mr. Arenlong, learned counsel for the petitioner. Also heard Mr. K. Wotsa, learned senior Government advocate appearing for the State respondent Nos. 1 and 2 as well as Mr. A. Zho, learned counsel appearing for the respondent No. 3. 4. Mr. Taka Masa, learned senior counsel appearing for the petitioner submits that the petitioner was initially appointed as Constable (Workshop Hand) under the establishment of Deputy Inspector General (Communication), Nagaland by order dated 1.10.1997. Thereafter, the petitioner completed his basic training and a certificate dated 20.5.1998 was also issued to that effect. The petitioner was again promoted to the rank of Havildar (Radio Mechanic) along with 17 others by order dated 9.5.2000. Thereafter, the petitioner completed his basic training and a certificate dated 20.5.1998 was also issued to that effect. The petitioner was again promoted to the rank of Havildar (Radio Mechanic) along with 17 others by order dated 9.5.2000. Thereafter, the petitioner was further promoted to the post of Assistant Sub-Inspector (RM) along with 13 others (including the respondent No. 3) by an order dated 25.7.2006. It is the submission of the learned senior counsel for the petitioner that the Nagaland Police Telecommunication Organization ('NPTO') is purely a technical wing and possessing the requisite technical qualification is the pre-requisite for inclusion in the seniority list and promotion. There is no service rule and it is governed by the executive notifications/instructions issued from time-to-time. To that effect, the respondents had issued a Memorandum dated 29.6.1996 providing that separate seniority list for different trades shall be maintained. Grade-I qualification is prescribed for promotion to the rank of Sub-Inspector, Grade-II qualification is prescribed for promotion to the rank of Assistant Sub-Inspector and Grade-III qualification is prescribed for promotion to Havildar. Personnel's without the requisite technical qualifications shall be kept outside the regular seniority list till they qualify the prescribed technical grade. He submits that a mere reading of the Memorandum dated 20.6.1996 amply makes it clear that counting of seniority shall be from the date of qualifying the prescribed technical trade and promotion is on seniority basis subject to availability of vacancy. 5. Learned senior counsel for the petitioner submits that the petitioner passed Grade-III course which was declared by the Office Order Part-1 dated 24.3.2000. The petitioner cleared his Grade-II course as declared by Office Order Part-1 dated 23.11.2001. By the same Office Order dated 23.11.20001, it is also shown that the respondent No. 3 had failed in Part-1 course. Further, as declared by D.O No. 262 on 5.12.2003 the petitioner passed the Grade-1 course and the private respondents cleared the Grade-1 course only on 7.9.2007 as indicated by the order dated 19.2.2008. Therefore, it is crystal clear that the petitioner had passed the Grade-I course by over four years ahead of the respondent No. 3. 6. It is also submitted that the respondents has issued a Memorandum dated 4.7.2003 wherein, a tentative seniority list of SI/ASI and Havildar of all trades were circulated. Therefore, it is crystal clear that the petitioner had passed the Grade-I course by over four years ahead of the respondent No. 3. 6. It is also submitted that the respondents has issued a Memorandum dated 4.7.2003 wherein, a tentative seniority list of SI/ASI and Havildar of all trades were circulated. In the said memorandum, from amongst the Radio Mechanic (RM), the petitioner is shown to have passed the Grade-II qualification and the respondent No. 3 is shown to have passed the Grade-III qualification. Thereafter, the final seniority list of NPTO was circulated by Notification dated 5.8.2004 wherein, the name of the petitioner appeared in the list of Havildar who has passed Grade-1 and the name of the respondent No. 3 appeared in the list of Havildar (RM) who has qualified Grade-III. Again, the respondents have issued another final seniority list through a Notification dated 22.4.2008 wherein, the name of the petitioner appeared in the list of Grade-I qualified ASI (RM) and the respondent No. 3 appeared in the list of Grade-II qualified ASI (RM). He, therefore, submits that the seniority list would clearly indicate that the petitioner is senior to the respondent No. 3 and that he had qualified Grade-1 ahead of the respondent No. 3. As the petitioner had also cleared the Grade-I examination on 5.12.2003, he was promoted to the post of Assistant Sub-Inspector on 21.7.2006. However, the respondent No. 3 was wrongly promoted to the post of Assistant Sub-Inspector on 21.7.2006 without clearing the Grade-I examination. It is submitted that the respondent No. 3 had cleared the Grade-I only on 7.9.2007 and, therefore, he could not have been promoted to the post of ASI on 21.7.2006 inasmuch as, he has cleared the Grade-I examination only on 7.9.2007. 7. Learned senior counsel for the petitioner submits that on coming to learn that the respondents were considering to promote some juniors of the petitioner without considering his case to the rank of Sub-Inspector and, therefore, the petitioner submitted a representation dated 12.5.2011. However, despite the representation, the respondents had issued the impugned order dated 17.5.2007 whereby, the respondent No. 3 along with seven others were given promotion to the rank of SI (Tech) and SI (Cy). However, despite the representation, the respondents had issued the impugned order dated 17.5.2007 whereby, the respondent No. 3 along with seven others were given promotion to the rank of SI (Tech) and SI (Cy). He submits that the said impugned order dated 17.5.2011 was issued without considering the case of the petitioner and the same was also done in violation of the Memorandum dated 29.6.1996 as well as the final seniority list that were issued from time-to-time. Being aggrieved by the action of the respondents in issuing the impugned order dated 17.5.2011, the petitioner again made a representation dated 7.6.2011. However, the said representation has not been considered by the respondents. 8. Learned senior counsel for the petitioner submits that the petitioner is senior over the respondent No. 3 in the rank of Assistant Sub-Inspector (RM) and, therefore, he was entitled to be promoted to the post of Sub-Inspector. It is also the further case of the learned senior counsel for the petitioner that the petitioner had passed Grade-III, Grade-II and Grade-I examinations much ahead of the respondent No. 3 and, therefore, he has been senior all along. In that view of the matter, learned senior counsel for the petitioner submits that the impugned order dated 17.5.2011 requires to be set aside insofar as, the respondent No. 3 is concerned and a direction be issued to the official respondents to consider the case of the petitioner for promotion to the next higher rank of Sub-Inspector. 9. Mr. K. Wotsa, learned senior Government advocate appearing on behalf of the State respondents submits that the NPTO is a technical wing however, the requisite technical qualifications are prescribed for promotion only and not for determining seniority. He also submits that there is no service rules for the NPTO and, therefore, seniority is determined by the date of promotion/appointment and norms generally applied to other Government employees. He submits that clause 4 of the Memorandum dated 29.6.1996 is specific to Wireless Operators, Radio mechanics, Fitters, Store men and Cryptographers who are holding personnel rank without prescribed technical qualification. Further, clause 6 is meant for the Assistant Sub-Inspectors (Operators) who are recruited directly without prescribed technical qualification. The case of the petitioner who is ASI (RM) nor the respondent No. 3 who is SI (RM) falls under clauses 4 and 6 of the Memorandum dated 29.6.1996. Further, clause 6 is meant for the Assistant Sub-Inspectors (Operators) who are recruited directly without prescribed technical qualification. The case of the petitioner who is ASI (RM) nor the respondent No. 3 who is SI (RM) falls under clauses 4 and 6 of the Memorandum dated 29.6.1996. He submits that the petitioner as well as the respondent No. 3 were promoted to the rank of Havildar and ASI after they passed the prescribed technical grade and, therefore, counting of seniority from the date of qualifying the prescribed technical trade is not applicable to them. He also submits that passing of respective grade of technical course is only a qualifying criteria for promotion and not for determining seniority. It is submitted that the respondent No. 3 was appointed as Constable on 1.6.1987 whereas, the petitioner was appointed as Constable only on 1.3.1998. Further, the respondent No. 3 was promoted to the rank of Havildar on 22.2.1996 and the petitioner was promoted to the rank of Havildar only with effect from 1.1.2000. Further, both the respondent No. 3 and the petitioner were promoted to the rank of Assistant Sub-Inspector on 21.7.1996. Therefore, as the respondent No. 3 had entered service earlier to the petitioner, the respondent No. 3 would rank senior to the petitioner in the rank of ASI. As such, the respondent No. 3 was promoted to the rank of ASI ahead of the petitioner. In that view of the matter, he submits that there is no merit in the writ petition and the same deserves to be dismissed. 10. Mr. A. Zho, learned counsel appearing for the respondent No. 3 while endorsing the submissions made by the learned senior Government advocate further submits that the respondent No. 3 was senior to the petitioner in all stages starting from the rank of constable. He submits that the respondent No. 3 was senior to the petitioner by about 11 years in the rank of Constable and in the rank of Havildar, the respondent No. 3 is senior by about 4 years to the petitioner. However, both the respondent No. 3 and the petitioner were given promotion to the rank of Assistant Sub-Inspector by a common promotion order dated 21.7.2006. However, both the respondent No. 3 and the petitioner were given promotion to the rank of Assistant Sub-Inspector by a common promotion order dated 21.7.2006. As such, the respondent No. 3 would stand senior in terms of the appointment order and other further promotion order up to the rank of Assistant Sub-Inspector and merely, because the petitioner had passed the qualifying trade earlier to the respondent No. 3, the same would not disturb the seniority position of the respondent No. 3 vis-a-vis the petitioner. He also submits that clause 5 of the Memorandum dated 29.6.1996 provides only about qualification for promotion to the ranks of Sub-Inspector, Assistant Sub-Inspector and Havildar and the same does not provide for seniority. Therefore, when the respondent No. 3 has already qualified for promotion to the rank of Sub-Inspector by passing the Grade-I there is nothing wrong in the order dated 17.5.2011 more particularly, when the respondent No. 3 was senior to the petitioner in all the earlier grades. As the NPTO is purely a technical wing of the Police Department, passing of technical course is relevant only for the purpose of future promotion. While not denying the fact that the petitioner had qualified Grade-I and Grade-II earlier to the respondent No. 3 however, the same does not effect the seniority position. It is also submitted that the only relevant consideration before the Departmental Promotion Committee for considering to the next higher promotional post is whether the respondent No. 3 was senior to the petitioner in the feeder grade and had qualified the Grade-I course. Therefore, while considering for promotion to the post of Sub-Inspector, the respondent No. 3 was found senior to the petitioner and had also qualified the Grade-I course and, therefore, the respondent No. 3 was rightly promoted to the post of Sub-Inspector by order dated 17.5.2011. It is also submitted that the tentative seniority list dated 4.7.2002, the final seniority list dated 5.8.2004 and 22.4.2008 were arranged and published Grade wise for administrative convenience and that the same does not indicate that Grade-I qualified personnel in a particular post are senior to those who have qualified Grade-II though holding the same post. Therefore, passing of technical grade courses is only a qualifying criteria for promotion and not for determining seniority. Therefore, passing of technical grade courses is only a qualifying criteria for promotion and not for determining seniority. In his support, learned counsel for the respondent No. 3 has placed reliance in the case of (i) Desoola Rama Rao and Another v. State of Andhra Pradesh and Others, 1988 (Supp) SCC 221, (ii) The Direct Recruit Class-II Engineering Officers' Association and Others v. State of Maharashtra and Others, AIR 1990 SC 1607 , (iii) State of Madhya Pradesh v. Anand Kumar Jain and Others, 1999 (2) MPLJ 134 , (iv) Union of India v. B. Jayaraman and Others, 1994 Supp (1) SCC 95 and (v) Sushanta Ghosh v. State of Tripura and Others, (2002) 3 GLR 509 ; 2002 (3) GET 504. 11. I have considered the submissions forwarded by the learned counsel for the parties. 12. There is no dispute that the respondent No. 3 had entered into service as Constable much ahead of the petitioner. Further, the respondent No. 3 has been promoted to the post of Havildar ahead of the petitioner. The petitioner had cleared the Grade-I qualification ahead of the respondent No. 3. Therefore, the issue involved in this matter is whether passing of Grade-I qualification would be the criteria for determining the seniority between the petitioner and the respondent No. 3. 13. Clauses 4 and 5 of the Memorandum dated 29.6.1996 is reproduced herein below : "4. The Wireless Operators, Radio Mechanic, Fitters, Storeman and Cryptographers holding personal rank of Inspector, Sub-Inspector and Asstt. Sub-Inspector as the case may be without the requisite technical qualification shall be kept outside the regular seniority list till they qualify to the prescribed technical grade. Personnel holding rank of Sub-Inspector shall ha veto qualify in the Grade-II and Grade-I to be included in the regular seniority list of qualified Sub-Inspector. 5. Grade-I qualification is prescribed for promotion to the rank of Sub-Inspector and Grade-II qualification is prescribed for promotion to the rank of Asstt. Sub-Inspector in the respective Grade. Personnel qualified in Grade-III shall be promoted to Havildar subject to availability of vacancies." 14. 5. Grade-I qualification is prescribed for promotion to the rank of Sub-Inspector and Grade-II qualification is prescribed for promotion to the rank of Asstt. Sub-Inspector in the respective Grade. Personnel qualified in Grade-III shall be promoted to Havildar subject to availability of vacancies." 14. A reading of clause 4 of the Memorandum dated 29.6.1996 clearly indicates that for the Wireless Operators, Radio Mechanic, Fitters, Store man and Cryptographers holding personal rank of Inspector, Sub-Inspector and Assistant Sub-Inspector as the case may be without the requisite technical qualifications shall be kept outside the regular seniority list till they qualify to the prescribed technical grade. Further, a reading of clause 5 of the Memorandum dated 29.6.1996 indicates that the qualification of Grade-III, Grade-II and Grade-I are prescribed for promotion to the next higher rank. The same does not talk about seniority position. 15. In the case of Desoola Rama Rao (supra), the hon'ble Supreme Court had held that in the absence of Rules, length of service is the basis for effecting inter-se seniority. 16. The High Court of Madhya Pradesh in the case of Anand Kumar Jain (supra) has also come to the conclusion that once a person was appointed to a post in accordance with rules, his seniority is to be counted from the date of his appointment and not from the date of his confirmation or for that matter, from the date of passing any departmental examination. Further, the hon'ble Supreme Court in the case of The Direct Recruit Class-II Engineering Officers' Association (supra) has held that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. 17. A consideration of the Memorandum dated 29.6.1996 does not in any manner indicate that the date of passing of the grade qualification would disturb the seniority position of the incumbent. It only prescribes that the qualification of different grade examination is a requirement for being promoted to the next higher post. 18. This court has also considered the tentative seniority list dated 4.7.2003, the final seniority list dated 8.8.2004 and 22.4.2008. From the said lists both tentative and final, it can be seen that the same has been issued only on the basis of incumbents who have passed respective technical grade. 18. This court has also considered the tentative seniority list dated 4.7.2003, the final seniority list dated 8.8.2004 and 22.4.2008. From the said lists both tentative and final, it can be seen that the same has been issued only on the basis of incumbents who have passed respective technical grade. The law being already settled that when an incumbent is appointed as per rules, the date of appointment will have to be counted for the purpose of seniority and not from the date from which the departmental examination has been passed, this court is of the considered opinion that though the respondent No. 3 may have passed Grade-I technical qualification later than the petitioner, the respondent No. 3 has been senior to the petitioner from the date of entry into service up to the rank of Havildar and, therefore, the respondents had rightly considered the case of the respondent No. 3 for promotion ahead of the petitioner to the rank of Sub-Inspector. 19. In that view of the matter, there is no merit in the writ petition and the same is accordingly, dismissed. 20. Consequently, the order dated 13.3.2014 issued by the State respondents cancelling the promotion of the respondent No. 7 and promoting the petitioner to the rank of SI (RM) is also set aside. 21. No costs.