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2017 DIGILAW 1295 (GAU)

T. Yanger Ozukum v. State of Nagaland

2017-09-15

LANUSUNGKUM JAMIR, SONGKHUPCHUNG SERTO

body2017
JUDGMENT : Lanusungkum Jamir, J. 1. The petitioners were initially appointed as Language Translator in the Directorate of Information and Public Relations, Nagaland for the purpose of translating the official language (Hindi and English) into local dialect. While serving as Language Translator, the Department enacted the Nagaland Information and Public Relation Service Rules, 2013 ("the Rules of 2013" in short). In the Rules of 2013, the post of Language Translator has been abolished and the petitioners are also denied further promotion to the post of Sub-Divisional Information Officer/Assistant Public Relation Officer. The petitions have therefore, approached this Court challenging the Rules of 2013 by the present writ petition. Heard Mr. A. Zho, learned counsel appearing for the petitioners. Also heard Mr. K. Sema, learned Senior Additional Advocate General, Nagaland assisted by Ms. Livika, learned Government Advocate appearing for all the respondents. 2. Mr. A. Zho, learned counsel appearing for the petitioners were appointed as Language Translator from the 16 recognized Schedule Tribes in the State of Nagaland for the purpose of translating the official language (Hindi and English) into their respective local dialect. The petitioners were appointed between the years 1983 to 2011 and some of the petitioner have already completed 30 years of service as Language Translator without any further promotion to the next higher rank. It is also submitted that some of the petitioners are likely to retire from service without getting any promotion during the whole career of their service which is contrary to administrative fair play. He submits that in the erstwhile Service rules, the post of News Assistant, Information Assistant-cum-Librarian, Library Assistant and Language Translator were treated as the same grade and the minimum qualification for all the posts was matriculation. Therefore the Department also maintained a common seniority list for all those posts and to that effect, the respondents had published a tentative seniority list of Information Assistant-cum-Librarian, News Assistant, Language Translator and Library Assistant as on November, 1988. The said tentative seniority list was circulated by communication dated 18.11.98. On the basis of the said seniority list, one Smt. Neikhwepeu Khalo who was the senior most Language Translator was promoted to the post of Sub-Divisional Information Officer (Non-Gazetted) by a Notification dated 5.11.2001 with effect from 01.11.2001. Similarly, one Shri L. Lamnyah, Language Translator was also promoted to the post of Sub-Divisional Information Officer by a Notification dated 20.10.2011. 3. Similarly, one Shri L. Lamnyah, Language Translator was also promoted to the post of Sub-Divisional Information Officer by a Notification dated 20.10.2011. 3. Learned counsel for the petitioners submits that consequent upon upgradation and re-designation of various posts under the Directorate of Information and Public Relations, the respondents by Notification dated 1.5.13 ordered for promotion of 9 Assistant Public Relation Officers to the upgraded/re-designated posts and to the existing vacant posts of District Public Relation Officer/Assistan Director (Class-I Gazetted) wherein, the name of Smti. Neikhwepeu Khalo, who was earlier promoted by Notification dated 05.11.2011 also figures. He, therefore, submits that the Language Translators were given fair opportunity in case of promotions. However, with the enactment of the Rules of 2013, the State respondents have completely denied any promotion to the Language Translator and besides that, the post of Language Translator stands abolished on the date the present incumbent retires from service. In the present writ petition, the petitioners are challenging the Rules of 2013 inasmuch as, the post of Language Translator has been abolished and the petitioners have been denied promotion as stipulated at Schedule II to the Rules of 2013. Being aggrieved with the Rules of 2013, the petitioners submitted representations including the representation dated 29.06.2013 to the Director of Information and Public Relations, Kohima/respondent No. 3, questioning the action of the Government for denying promotion to the petitioners as well as for abolishing the post of Language Translator. However, the representations made by the petitioners were rejected by the State Government without any application of mind. 4. It is submitted that under the Rules of 2013, the post of Language Translator is completely abolished and the same is converted into Information Assistant which is not in the interest of existing 16 recognized Schedule Tribes in the State of Nagaland. He submits that Nagaland consists of various tribes with distinct dialect living mostly in the rural areas and the majority of the villagers in the rural areas do not understand English or Hindi. Under such circumstances, the function of the Language Translator is necessary to disseminate information to the people up to the village level in different tribal dialect Therefore, abolishing the post of Language Translator is against the larger interest of the public. Under such circumstances, the function of the Language Translator is necessary to disseminate information to the people up to the village level in different tribal dialect Therefore, abolishing the post of Language Translator is against the larger interest of the public. This was noticed by several Parliamentary Secretaries and Members of the Legislative Assembly representing different districts and therefore, they have made separate letters to the Department to review the Rules of 2013. Further, almost all the Naga Tribes in the State of Nagaland opposed to the abolishing of the post of Language Translator by the Rules of 2013 and in this regard, 11 leaders representing their tribal organization have also written to the Department not to abolish the post of Language Translator in public interest. However, all the letters and the representations were not considered by the State Government without any cogent reasons. He submits that in view of the hardship caused to the petitioners by the application of the Rules of 2013, a situation has also arisen as to whether a direction is required for relaxing of the Rules of 2013 more particularly, the Schedule II appended thereto and by doing so, it would not cause any prejudice to any other members of the service. Further, there is good and sufficient reasons for relaxing Schedule II of the Rules of 2013 inasmuch as the same has completely sealed the future promotion of the petitioners after serving for more than 20 to 30 years of service. 5. Learned counsel for the petitioners also submit that the Rules of 2013 is arbitrary and discriminatory inasmuch as, no prudent person properly instructed in law can make such law which is against the principles of equity. It is submitted that in the past, some of the Language Translators have been promoted to the post of District Public Relation Officer which is equivalent to the rank of Assistant Director (Class-1 Gazetted) and is still continuing in service. By the Rules of 2013, the petitioners are not given an opportunity of advancement/promotion which is a normal incident of service and if there is no channel of promotion in respect of the petitioners, the same would result in stagnation over the years thereby, reducing efficiency in service. By the Rules of 2013, the petitioners are not given an opportunity of advancement/promotion which is a normal incident of service and if there is no channel of promotion in respect of the petitioners, the same would result in stagnation over the years thereby, reducing efficiency in service. In that view of the matter, he submits, that the Rules of 2013 be declared un-constitutional and violative of Article 14 and 16(1) of the Constitution of India and accordingly, the same be set aside. Learned counsel for the petitioners placed reliance in the case of :- (i) Food Corporation of India & Ors. v. Parashotam Das Bansal & Ors., reported in (2008) 5 SCC 100 (ii) The State of Tripura & Ors. v. K.K. Roy, reported in (2004) 9 SCC 65 (iii) Dr. Ms. O.Z. Hussian v. Union of India & Ors., reported in 1990 Supp (1) SCC 688 (iv) Council of Scientific and Industrial Research & Anr. v. K.G.S. Bhatt & Anr., reported in (1989) 4 SCC 635 . 6. Mr. K. Sema, learned Senior Additional Advocate General, Nagaland appearing on behalf of the State respondents submits that the service under the Department of Information and Public Relations is governed by the Rules of 2013. Prior to the Rules of 2013, the service conditions of the officers serving in Department were regulated by the Nagaland Information and Publicity Service Rules, 1983 ("the Rules of 1983" in short). The Department thad drafted a draft rules called the Nagaland Information and Publicity Subordinate Service Rules, 1983 ("the "Draft Rules of 1983" in short) and the Nagaland Information and Public Relations Service Rules, 1983 (Revised) ("Revised Service Rules of 1983" in short) and forwarded to the Government for necessary action but they were never approved and notified inasmuch as both the Draft Service Rules of 1983 and the Revised Service Rules of 1983 were found inconsistent with the present administrative set up. Therefore, the Department proposed to come up with a new Service Rules and accordingly, a Committee was set up consisting of members from all concerned Departments for making a new Service Rules. Thereafter, the Rules of 2013 was enacted and notified by the Government of Nagaland. Therefore, the Department proposed to come up with a new Service Rules and accordingly, a Committee was set up consisting of members from all concerned Departments for making a new Service Rules. Thereafter, the Rules of 2013 was enacted and notified by the Government of Nagaland. Learned Senior Additional Advocate General, Nagaland while admitting that the Language Translators in the past were given promotion prior to the Rules of 2013, however, he submits that the same was only an exception rather than the rule. While framing the Rules of 2013, the Cadre Review Committee found that the services of the Language Translator are almost redundant in the present context and they are languishing without any work at the expense of the Government. On the other hand, it was found that the need to post Information Assistants to numerous administrative headquarters all over the State was a necessity and therefore, the Cadre Review Committee recommended that the post of Language Translator be converted to Information Assistant as and when, the present incumbent retires. However, appointment to the post of Information Assistant shall initially be tribe specific to the Language Translator who had retired so that in the event of any language translation is required, the same can be done by the Information Assistant appointed tribe wise against the post of Language Translator retired. 7. Learned Senior Additional Advocate General, Nagaland submits that creation and abolition of post, formation and structuring/re-structuring of cadre etc are matters which falls within the exclusive domain of the employer. Whether a particular post is required or not, is a matter depending upon the exigencies of the situation and administrative necessity. Therefore, while framing the Rules of 2013, the Cadre Review Committee fell that the services of Language Translators are almost redundant and therefore, it was recommended that the post of Language Translator be converted to Information Assistant as and when, the present incumbent retires. It is also submitted that though the Rules of 2013 shows that the post of Language Translators have been abolished, the petitioners are allowed to continue till they attain the age of superannuation/retirement and therefore, the petitioners cannot agitate that they are being aggrieved by the abolishing of Language Translator and therefore, they have no locus standi to challenge the same. It is submitted that when the post of Language Translators have been abolished, the question of providing promotion avenues for the Language Translators under the Rules of 2013 does not arise however, the petitioners are entitled to Assured Career Progression Scheme (ACP). It is also submitted that except for some Disaster Awareness Campaign in the year 2008-2009, the Department of Information and Public Relations, Nagaland is not doing any translation work for which the service of Language translator is required. In that view of the matter, he submits that there is no merit in the present writ petition and the same deserves to be dismissed. 8. The submissions of the learned counsel for the parties have been considered. 9. A consideration of the materials available on records as well as the submissions of the learned counsel appearing for the parties would clearly indicate that the challenge to the Rules of 2013 is made only on the ground that the post of Language Translator has been abolished and that there is no future promotional scope for the petitioners. 10. Whether a post should be retained or abolished is essentially a matter for the Government to decide as long as such decision of the Government is taken in good faith and the same cannot be set aside by the Court. It is our considered opinion that it is not open for the Court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished. However, it is also open to the Court to consider whether abolishing of the post of Language Translator has been taken in good faith and which should not be used as a cloak or pretence to terminate the services of a person holding the post. The decision of the Government to retain the petitioners as Language Translator till they retire would clearly indicate the intention of the Government that abolishing the post of Language Translator has been done in good faith. 11. In the case of State of Haryana & Ors. v. Navneet Verma, reported in (2008) 2 SCC 65, the Hon'ble Supreme Court has culled the following principles:- "17. 11. In the case of State of Haryana & Ors. v. Navneet Verma, reported in (2008) 2 SCC 65, the Hon'ble Supreme Court has culled the following principles:- "17. We summarise the power of the Government in abolishing a post and rule of the Court for interference: (a) the power to create or abolish a post rests with the Government; (b) whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity; (c) creation and abolition of posts is a matter of government policy and every sovereign government has this power in the interest and necessity of internal administration; (d) creation, continuance and abolition of posts are all decided by the Government in the interest of administration and general public; (e) the Court would be the least competent in the face of scanty material to decide whether the Government acted honestly in creating a post or refusing to create a post or its decision suffers from malafides, legal or factual; (f) as long as the decision to abolish the post is taken in good faith in the absence of material, interference by the Court is not warranted". 12. Further, in the case of Official Liquidator v. Dayanand & Ors., reported in (2008) 10 SCC 1 , the Hon'ble Supreme Court has held as under :- "59. The creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source and mode of recruitment and qualifications and criteria of selection etc. are matters which fall within the exclusive domain of the employer. Although the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode of recruitment and laying down the qualification, etc. is not immune from judicial review, the Court will always be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by malafides". 13. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by malafides". 13. The reasons projected by the learned Senior Additional Advocate General, Nagaland with regard to the abolishing of the post of Language Translator has been considered by this Court. Further, at the cost of repetition, we would like to emphasize that the Government has taken a decision that the present petitioners would not fee removed from their post despite the post of Language Translator being abolished by the Rules of 2013 and such decision clearly indicate the good intention of the Government. As the law is already settled that abolishing or creation of post is the prerogative of the Government provided such decision is taken in good faith, we see no reason to interfere with the decision of the Government and also to interfere with the Rules of 2013. Accordingly, there is no merit in the writ petition and the same is dismissed. 14. However, notwithstanding the dismissal of the writ petition, we are also constrained to observe that some of the petitioners have been serving as Language Translator for more than 20 to 30 years in the same post and that by the Rules of 2013, there is no promotional scope for the petitioners till they retire. It is to be pointed out that the provision for promotion increases efficiency of a public servant while stagnation reduces efficiency and makes the service ineffective. Therefore, promotion is a normal incidence of service. We have already noticed that by the Rules of 2013, the petitioners are left with no scope for future promotion. We have also taken into consideration the submission of the learned Senior Additional Advocate General, Nagaland that the petitioners though may not have promotional scope, are entitled to the Assured Career Progression Scheme (ACP). As the ACP Scheme is in force in the State of Nagaland, we deem it appropriate that a direction be issued to the respondents to grant the petitioners the ACP/MACP Scheme within a time frame in order to prevent that their efficiency in their service is not effected. The respondents, therefore, shall consider the case of the petitioners and grant them the ACP/MACP Scheme as applicable to the respective petitioners, if not already granted. The respondents, therefore, shall consider the case of the petitioners and grant them the ACP/MACP Scheme as applicable to the respective petitioners, if not already granted. Such exercise should be completed within a period of six months from today. 15. Writ petition is accordingly disposed of. No costs.