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Gauhati High Court · body

2017 DIGILAW 1399 (GAU)

Er. Chonrothung Ezung v. State of Nagaland

2017-11-01

SONGKHUPCHUNG SERTO

body2017
JUDGMENT : 1. These three writ petitions were heard together and being disposed of by this common judgment as the cause of action is same. In the two writ petitions, i.e., W.P.(C) No. 283(K) of 2011 and W.P.(C) No. 69(K) of 2012, the petitioner is the same but in the third writ petition, i.e., WP(C) No. 22(K) of 2017 the petitioner in the earlier two writ petitions is the private respondent. 2. The facts and circumstances leading to the filing of the three writ petitions are briefly stated here below: The writ petitioner in the two writ petitions who is a graduate in Electrical Engineering was appointed as Junior Engineer in the Department of Power, Government of Nagaland, vide order dated 16.10.1989, on contract basis for a period of 1 year. While he was serving as such, the Nagaland Public Service Commission (‘the NPSC’) advertised 16 posts of Overseer Grade-I (Electrical). In response, the petitioner also applied for the post and appeared in the examination conducted by the Commission. Having been selected he was appointed to the post of Overseer, vide order dated 21.10.1991, and was posted in the Office of Executive Engineer, Kohima. Vide Notification, dated 8.6.1998, issued by the Department of Power, Government of Nagaland, the post of Overseer Grade-I was redesignated as Junior Engineer Grade-II (Gazetted), w.e.f. 1.4.1997. The petitioner was promoted to the post of SDO (Electrical) on officiating basis with the clearance of P&AR Department, vide Notification dated 15.10.2004, issued by the Department of Power subject to regularization by Departmental Promotion Committee. Against the officiating promotion of the petitioner, the All Nagaland Diploma Engineers Service Association (Power) and 34 others J.Es filed two separate writ petitions which were registered as WP(C) No. 191(K) of 2004 and WP(C) No. 250(K) of 2004. The two writ petitions were disposed of by a common judgment and order dated 3.6.2005, wherein the State respondents were directed to fill up the post of SDO(E) in strict compliance of the relevant rules within a period of 3 months from the date of receipt of the copy of the judgment and order. It was also directed that the appointment of the petitioner shall stand terminated in case the State respondents failed to fill up the post of SDO(E) within the period given above. It was also directed that the appointment of the petitioner shall stand terminated in case the State respondents failed to fill up the post of SDO(E) within the period given above. Pursuant to the direction given in the common judgment, a DPC was held on 5.8.2005 for consideration of promotion of Officers of various posts including the post of SDO(E) held by the petitioner in the two writ petitions. The DPC recommended one Shri Mokokchiba, J.E. (Electrical) for promotion to the post of SDO(E) held by the petitioner. Aggrieved by the recommendation of the DPC, the petitioner submitted a representation dated 6.8.2005, to the Commissioner &. Secretary, Department of Power, Nagaland, Kohima. In response to the said representation another DPC was held on 11.8.2005. The DPC considered the case of the petitioner but decline to review the recommendation of the earlier DPC on the ground that no new facts which can justify for such review has arisen but at the same time recommended 5 J.Es. of the department for promotion to the post of SDO(E). Out of those 5, 4 were arrayed as respondent Nos. 5, 6, 7 and 8 in the first writ petition. In that DPC, one Shri Zhodi Angami, who was J.E. but not qualified to be promoted to the post SDO(E) as he have not acquired minimum qualification was also recommended. Therefore, another DPC was held on 5.12.2005, the DPC reviewed the recommendation of the earlier DPC relating to the case of Shri Zhodi Angami and withdrew his name from the recommendation but affirmed the recommendation of the earlier DPC in respect of the respondent Nos. 5, 6, 7 and 8 in the WP(C) No. 283(K) of 2011 and also recommended one more J.E. for promotion to the post of SDO(E), namely, Shri Yekevi Serna, who also has been arrayed as the respondent No. 11 in the first writ petition. The petitioner feeling aggrieved filed two writ petitions one after the other but withdrew both for one reason or the other and finally filed this first writ petition WP(C) No. 283(K) of 2011 challenging the proceedings of the 3(three) DPCs stated above, i.e., the DPCs held on 5.8.2005, 11.8.2005 and 5.12.2005, at the same time praying for regularization of his officiating promotion to the post of SDO(E). In spite of the direction given in the order dated 3.6.2005, passed in WP(C) No. 191(K) of 2004 and VVP(C) No. 250(K) of 2004, the petitioner was allowed to continue to the post of SDO(E) on officiating basis. While he was serving as such, the Government of Nagaland, Department of Power, vide Notification dated 22.03.2012, cancelled his officiating promotion in the post of SDO(E) and reverted him to his substantive post, i.e., J.E. (Electrical) with immediate effect in pursuance of the order dated 3.6.2005, of this court passed in WP(C) No. 191(K) of 2004 and WP(C) No. 250(K) of 2004. 3. Being aggrieved by the said notification, the petitioner approached this court by filing the WP(C) No. 69(K) of 2012 challenging the same and praying for quashing and setting aside the notification. When the writ petition was moved, the same was admitted and vide order dated 4.4.2012, passed in the writ petition and the operation of the impugned notification was stayed until further order but liberty granted to the respondents to approach this Court for modification or cancellation of the stay order, if so desire. While the two writ petitions were still pending for disposal, on 25.2.2017, the Chief Engineer, Department of Power Transmission & Generation, Nagaland, Kohima, sent a proposal dated same to the Secretary of Department of Power, Nagaland, Kohima, for promoting Officers of the department to different posts in the department including the name of the petitioner to the post of Executive Engineer. Due to the apprehension that the writ petitioner may be promoted to the post of Executive Engineer in pursuance to the proposal, 6 SDOs of the department claiming themselves to be senior to the petitioner in the two writ petitions filed a writ petition in this High Court challenging the proposal and praying for quashing and setting aside of the same and also praying for an interim order restraining the authorities from acting in pursuance of the impugned notification. In that writ petition, besides the State respondents, the writ petitioner in the above two writ petitions was made a party as the respondent No. 5. On the day the petition was moved, i.e., 16.3.2017, notice was issued to the respondents and the authorities were directed not to proceed with the proposal for promotion of the petitioner in the two writ petitions (the respondent No. 5) in the said writ petition. On the day the petition was moved, i.e., 16.3.2017, notice was issued to the respondents and the authorities were directed not to proceed with the proposal for promotion of the petitioner in the two writ petitions (the respondent No. 5) in the said writ petition. The writ petition was registered as WP(C) No. 22(K) of 2017. 4. I have heard Mr. C.T. Jamir, learned senior counsel who appeared on behalf of the petitioner in the two writ petition, i.e., VVP(C) No. 283(K) of 2011 and WP(C) No. 69(K) of 2012 and the respondent No. 5 in the third writ petition WP(C) No. 22(K) of 2017. I have also heard Mr. K. Wotsa, learned senior Government advocate who appeared on behalf of the State respondents in all the three writ petitions. Mr. Apok Pongener, learned counsel who appeared on behalf of the petitioners in WP(C) No. 22(K) of 2017 and Mr. Hisnlo, learned counsel who appeared for the private respondent Nos. 5 to 11 in WP(C) No. 283 of 2012 have also been heard. 5. It is submitted by Mr. C.T. Jamir, learned senior counsel that vacancy in the post of SDO(E) has to be filled up in accordance with rule 8 of the Nagaland Engineering Service Rules, 1997, which provides that: (i) 60% of the vacancies is to be filled by direct recruitment, and (ii) 40% by promotion from the penal of serving J.Es. possessing degree/diploma from recognised institution and having completed 8 years of service as J.E. The learned senior counsel further submitted that clause-V of the rule 8 provides for giving preference to those J.Es. who have earned degree certificate from recognised institutions and have completed 5 years of service as J.Es. The learned senior counsel contended that though the rules provided for incentive to those J.Es. having degree certificate, the State respondents have given the benefits of the rule only to those J.Es. with diploma certificate thereby ignoring those J.Es. who have already acquired degree certificate. This is against the letter and spirit of the said provisions of the rule. Therefore, the State respondents may be directed to regularise the service of the writ petitioner in the two writ petitions, i.e., WP(C) No. 283(K) of 2011 and WP(C) No. 69(K) of 2012. The learned senior counsel, Mr. who have already acquired degree certificate. This is against the letter and spirit of the said provisions of the rule. Therefore, the State respondents may be directed to regularise the service of the writ petitioner in the two writ petitions, i.e., WP(C) No. 283(K) of 2011 and WP(C) No. 69(K) of 2012. The learned senior counsel, Mr. C.T. Jamir further submitted that the petitioner in the two writ petitions have been granted Modified Assured Career Progression Scheme (MACPS) because of his long tenure in the service which is in a way an acknowledgement by the department that he is qualified to be promoted, therefore, the petitioner is a deserving person to be regularised in his post of SDO(E). The learned senior counsel also submitted that as per the seniority list issued by the department, the petitioner is the senior most among the J.Es. with degree certificate and has also been placed higher in the seniority list of SDOs(E) then the petitioners in WP(C) No. 22(K) of 2017, therefore, his name was recommended for promotion to Executive Engineer. Therefore, merely, because his service has not been regularised in the post of SDO(E) which is not because of any fault of his, he cannot be deprived of promotion to the post of Executive Engineer. Lastly, the learned senior counsel submitted that seniority list once settled cannot be unsettled. In support of his submissions as stated above, Mr. C.T. Jamir, learned senior counsel cited the following judgments of the hon'ble Supreme Court passed in different cases. The relevant portions of the judgments are reproduced one after the other: (i) Bimlesh Tanwar v. State of Haryana, (2003) 5 SCC 604 , para 54: “54. Furthermore, it is now well settled that a settled seniority position should not be unsettled. The respondents had already been posted to the post of Additional District Judge. As would appear from the report to the Sub-Committee that the seniority list was published in the year 1992. Representations were, however, made only in the year 1997 which was rejected by the High Court on 22-8-1997. The writ petition was filed in March 1998 which was dismissed by reason of the impugned judgment dated 18-8-1999.” (ii) Rajendra Pratap Singh Yadav v. State of U.P., (2011) 7 SCC 743 , paras 44,45 and 46: “44. Representations were, however, made only in the year 1997 which was rejected by the High Court on 22-8-1997. The writ petition was filed in March 1998 which was dismissed by reason of the impugned judgment dated 18-8-1999.” (ii) Rajendra Pratap Singh Yadav v. State of U.P., (2011) 7 SCC 743 , paras 44,45 and 46: “44. Respondent No. 4 did not join the armed forces during emergency and, thus, stealing a march over 181 officers is not only contrary to the Rules but is discretionary and arbitrary and violative of articles 14 and 16 of the Constitution. We are clearly of the view that respondent No. 4 and similarly placed employees could not have been given the benefit of the 1973 Rules. These Rules were not in existence when they were appointed. Therefore, they could not have derived any benefit from the 1973 Rules. Consequently, we are constrained to set aside the impugned judgment of the High Court. We have no hesitation in holding that respondent No. 4 — Rakesh Kumar Jolly, Rajendra Singh and Sudhir Kumar were wrongly given the benefit of the 1973 Rules. 45. We deem it appropriate to reiterate that in service jurisprudence there is immense sanctity of a final seniority list. The seniority list once published cannot be disturbed at the behest of a person who chose not to challenge it for four years. The sanctity of the seniority list must be maintained unless there are very compelling reasons to do so in order to do substantial justice. This is imperative to avoid avoidable litigation and unrest and chaos in the services. 46. We, therefore, direct the respondent-State of U.R to prepare a fresh seniority list and place all three of them on their respective positions as they had not received the benefit of 1973 seniority. There has been a considerable delay in this matter, therefore, we direct the State of U.P. to publish a fresh seniority list as expeditiously as possible, in any event within two months from the date of this judgment.” (iii) Union of India v. S.P. Nayyar, (2014) 14 SCC 370 , para 11: “11. It is settled that the High Court under article 226 of the Constitution of India cannot sit in appeal over the assessment made by the DPC. It is settled that the High Court under article 226 of the Constitution of India cannot sit in appeal over the assessment made by the DPC. If the assessment made by the DPC is perverse or is not based on record or proper record has not been considered by the DPC, it is always open to the High Court under article 226 of the Constitution to remit the matter back to the DPC for recommendation, but the High Court cannot assess the merit on its own, on perusal of the service record of one or the other employee.” (iv) Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465 , paras 9,10 and 11: “Person aggrieved: 9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order, etc., in a court of law. A writ petition under article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the court. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the court. The legal right that can be enforced must ordinarily be the right of the appellant himself, which complains of infraction of such right and approaches the court for relief as regards the same — Vide State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12 ; Saghir Ahmad v. State of UP., AIR 1954 SC 728 ; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal, AIR 1962 SC 1044 ; Rajendra Singh v. State of Madhya Pradesh, (1996) 5 SCC 460 : AIR 1996 SC 2736 and Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar, (2009) 2 SCC 784 . 10. A “legal right”, means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, “person aggrieved” does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized — Vide Shanti Kumar R. Chanji v. Home Insurance Co. of New York, (1974) 2 SCC 387 : AIR 1974 SC 1719 and State of Rajasthan v. Union of India, (1977) 3 SCC 592 : AIR 1977 SC 1361 . 11. In Anand Sharadchandra Oka v. University of Mumbai, (2008) 5 SCC 217 : AIR 2008 SC 1289 , a similar view was taken by this Court, observing that, if a person claiming relief is not eligible as per requirement, then he cannot be said to be a person aggrieved regarding the election or the selection of other persons.” 6. Mr. K. Wotsa, learned senior Government advocate who appeared on behalf of the official respondents submitted that the petitioner in the two petitions, i.e., WP(C) No. 283(K) of 2011 and WP(C) No. 69(K) of 2012 cannot claim the benefits of rule 8(v), since the same was intended to give benefits to J.Es. Mr. K. Wotsa, learned senior Government advocate who appeared on behalf of the official respondents submitted that the petitioner in the two petitions, i.e., WP(C) No. 283(K) of 2011 and WP(C) No. 69(K) of 2012 cannot claim the benefits of rule 8(v), since the same was intended to give benefits to J.Es. who acquired degree certificate during their service carrier and also have completed 5 years as J.E. The learned senior Government advocate further submitted that this provision was inserted in the rule to give incentive to those diploma holders who entered service as J.E. to earn higher degree in order to increase their knowledge and efficiency. Mr. K. Wotsa also submitted that regularisation of the petitioner's service to the post of SDO(E) was not considered in the DPC proceedings which have been challenged in the first writ petition because he was not in the zone of consideration. Mr. K. Wotsa further submitted that at the level of J.E. all the Officers be it a person with degree certificate or diploma holder are clubbed together and are placed in the common seniority list as per their date of entry into service. As such, the petitioner and other degree holders who entered service much later than those with diploma holders including those who were considered for promotion by the 3 DPCs and eventually got promoted were placed much below in the seniority list of J.Es. Therefore, the petitioner has no case against them. However, he would be considered for promotion if he is within the zone of consideration as and when vacancies arise. 7. In regard to the 2nd writ petition Mr. K. Wotsa submitted that the Notification dated 22.3.2012, impugned therein was issued in pursuance of the common judgment and order dated 3.6.2005, passed by this High Court in WP(C) No. 191(K) of 2004 and WP(C) No. 250(K) of 2004. Therefore, there is neither illegality in the said order nor is there anything which infringed the right of the petitioner, as such, the same cannot be interfered with. 8. Mr. K. Wotsa also submitted in connection with the last writ petition that the proposal of the Chief Engineer, Department of Power, Transmission and Generation, Nagaland. Kohima, had mentioned the name of the respondent No. 5 in the writ petition inadvertently and unintentionally. 8. Mr. K. Wotsa also submitted in connection with the last writ petition that the proposal of the Chief Engineer, Department of Power, Transmission and Generation, Nagaland. Kohima, had mentioned the name of the respondent No. 5 in the writ petition inadvertently and unintentionally. Thereafter, he went on to submit that the respondent No. 5 is not eligible for promotion to the post of Executive Engineer as he is yet to be regularised in the post of SDO(E). In support of his submissions, Mr. K. Wotsa cited the judgment of the hon'ble Supreme Court passed in the case of Bal Kishan v. Delhi Administration, 1989 Supp (2) SCC 351, paras 9 and 10. The relevant portions of the judgment are reproduced here below: “9. In service, there could be only one norm for confirmation or promotion of persons belonging to the same cadre. No junior shall be confirmed or promoted without considering the case of his senior. Any deviation from this principle will have demoralising effect in service apart from being contrary to article 16(1) of the Constitution. 10. It is not shown that the seniors were not eligible for confirmation when the appellant was confirmed. Nor it is shown that the seniors were not suitable for promotion when the appellant was promoted. The appellant, therefore, could not complain against the corrective action taken by the respondents.” 9. Mr. Hisnlo, learned counsel appearing for the private respondent Nos. 5 to 11 in WP(C) No. 283(K) of 2011 submitted that the respondents were senior to the writ petitioner, therefore, they were considered and recommended by the DPC for promotion. As such, no illegality was committed by the DPC for recommending the private respondents for promotion to the post of SDO(E). The learned counsel also submitted that the writ petitioner was not eligible for promotion to the post of SDO(E) as he was down below in the seniority list of the J.Es. in the department at that time. 10. Mr. As such, no illegality was committed by the DPC for recommending the private respondents for promotion to the post of SDO(E). The learned counsel also submitted that the writ petitioner was not eligible for promotion to the post of SDO(E) as he was down below in the seniority list of the J.Es. in the department at that time. 10. Mr. Apok Pongener, learned counsel appearing for the petitioners in WP(C) No. 22(K) of 2017 submitted that while the writ petitioners in WP(C) No. 22(K) of 2017 are regular promotees in their respective post, the respondent No. 5 [the writ petitioner in WP(C) No. 283(K) of 2011 and WP(C) No. 69(K) of 2012] is only in officiating capacity in the post of SDO(E), therefore, he cannot be considered for promotion to the post of Executive Engineer ahead of them. As such, the proposal of the Chief Engineer, Department of Power, Transmission & Generation, Department of Power, Nagaland, Kohima, dated 25.02.2017, deserves to be quashed and set aside. The learned counsel also submitted that a person's seniority in a particular cadre has to be counted from the date he is bomed in the cadre. However, in the case of respondent No. 5 (the writ petitioner in the two writ petitions, i.e., WP(C) No. 283(K) of 2011 & WP(C) No. 69(K) of 2012) he is yet to be confirmed or regularise in the post, therefore, he cannot claim seniority in that cadre. The learned counsel in support of his submissions cited the following judgments of hon'ble Supreme Court in different cases. The relevant portions of the judgments are reproduced one after the other: (i) Union of India v. Gajindra Singh, etc., (1973) 3 SCC 797 : AIR 1972 SC 1329 , paras 7 to 9. “7. Appointment to a post on an officiating basis is, from the nature of employment, itself of a transitory character and in the absence of any contract or specific rule regulating the conditions of service to the contrary, the implied term of such an appointment is that it is terminable at any time. The Government servant so appointed acquires no right to the post. The Government servant so appointed acquires no right to the post. But if the order entails or provides for forfeiture of his pay or allowance or the loss of his seniority in the substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that though in form the Government had purported to exercise its undoubted right to terminate the employment, in truth and reality, the termination was by way of penalty (see Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 . 8. We do not understand how the respondent lost his seniority in his substantive rank of Kanungo by the mere fact that some of his juniors were allowed to continue in the post of Naib Tehsildar on an officiating basis. His juniors were not promoted on a regular basis. Like the respondent they were also promoted to officiate in the post of Naib Tehsildar under para 37(H). We do not see how their retention in the posts on an officiating basis would entail loss of seniority of the respondent in his substantive rank. No provision in the Standing Order or any other rule has been brought to our notice to show that by allowing the juniors of the respondent to continue to officiate in the posts of Naib Tehsildar the respondent lost his seniority in his substantive rank. We do not, therefore, think that the order of reversion was attended with any penal consequences so as to attract the provisions of article 311(2). 9. The respondent, no doubt, was appointed to officiate in the post of Naib Tehsildar in pursuance of para 37(ii) of the Standing Order and that did not provide that he could be reverted for his not passing the departmental examination within any specified time but that would not 'in any way vitiate the order of reversion as the respondent had no right to hold the post and the 2nd appellant had the undoubted power to revert him. The fact that the 2nd appellant give a wrong reason for reverting the respondent would not in any way affect the power which he undoubtedly possessed to revert him". (ii) B.S. Vadera v. Union of India, AIR 1969 SC 118 , para 15: “15. We have referred to the relevant orders, promoting these two, petitioners, in the first instance, as Upper Division Clerks and, later, as Assistants. (ii) B.S. Vadera v. Union of India, AIR 1969 SC 118 , para 15: “15. We have referred to the relevant orders, promoting these two, petitioners, in the first instance, as Upper Division Clerks and, later, as Assistants. The order promoting the petitioners, as Assistants, Annexure 5, dated 1st February, 1958, has been referred to, already, and that order clearly shows that the promotion was only a short-term, temporary arrangement, on an officiating basis, and that no claim could be based-upon that promotion. No doubt, the order, Annexure 3, dated 1st February, 1957, promoting the petitioners, as Upper-Division Clerks, may, on a superficial reading of that order, give the impression that the promotion, is on a permanent basis, and from which further promotion is to be made, to the Grade of Assistants, but, in view of what is stated, on behalf of the Railway Board, the promotion, under Annexure 3, is again, a temporary promotion, because the Scheme, Annexure 4, was to come into force, within a very short time, and that the promotions were made, only on a provisional basis. The regular promotions, or appointments, to Upper Division Grade, which is styled as Grade 1, were to be made, as envisaged under the Scheme, Annexure 4, dated 5th February, 1957. Both the petitioners have, categorically, averred in their petitions, that Annexure 4, as modified by Annexure 7, has retrospective effect, from 1st December, 1954.” (iii) Jarnail Singh v. State of Punjab, (1996) 1 SCC 527 : AIR 1996 SC 755 , paras 3, 4 and 5: “3. The witnesses then took injured Sukhdev Singh and Surjit Singh to their house nearby but by then they had succumbed to their injuries. Dhanwant Singh then went to Majithia police station and lodged a First Information Report. S.I. Janak Raj (PW12) registered a case on that report and left for village Khatra Khurt. He first went to the house of the deceased and after holding inquest upon the dead bodies sent them for post mortem examination. He then went to the place of occurrence and seized some blood stained earth and also some pellets found embedded on the walls of the house of Ajit Singh. After receipt of the report of the post mortem examination held on the two dead bodies by Dr. He then went to the place of occurrence and seized some blood stained earth and also some pellets found embedded on the walls of the house of Ajit Singh. After receipt of the report of the post mortem examination held on the two dead bodies by Dr. Harish Chander Vaid (PW 5) and on completion of investigation S.I. Janak Raj submitted charge sheet and in due course the case was committed to the Court of Sessions. 4. The accused persons pleaded not guilty to the charges levelled against them and contended that they had been falsely implicated. 5. To prove its case prosecution examined twelve witnesses of whom Dhanwant Singh (PW 4) and Manohar Singh (PW6), the two brothers of the deceased, figured as eye witnesses; and in their defence the accused persons examined five witness, including Swaran Singh (DW 5) who also claimed to have witnessed the occurrence.” 11. Before I go any further, it would be appropriate to reproduce here the relevant provisions of the rule 8(iii) and (v) of the Nagaland Engineering Service Rules, 1997. Therefore, the same are given here below: “(iii) 40% of the total vacant post of Assistant Engineers at the time of requisition will filled up from the panel of serving Junior Engineers by promotion from the candidates possessing Degree/Diploma from recognised institutes and having completed 8 years of service as Junior Engineer. (v) Serving Diploma holders in the rank of Junior Engineers who have improved their technical qualification, i.e., acquiring degree or equivalent qualification will be given preference for further promotion with a minimum length of 5 years of continuous service as Junior Engineer.” On careful reading on two sub-clauses of rule 8, it is quite clear that 40% of the vacancies in the post of Assistant Engineer/SDO(E) in the Department of Power has to be filled up by promotion from among the J.Es. who possess degree/diploma from recognised institutes and who also have completed 8 years of service in that cadre. However, for those J.Es. who are holders of diploma if they acquired degree certificate or equivalent while serving and, if they have completed 5 years of continuous service in the cadre of J.E. they will be given preference for promotion to the post of SDO(E). There is no indication from the above that such preferential treatment is also extended to those who are already holding degree certificate. There is no indication from the above that such preferential treatment is also extended to those who are already holding degree certificate. It appears that intention of the rule is to give incentive to those diploma holders to earn higher degree to increase their knowledge and efficiency. The petitioner in the first writ petition, i.e., WP(C) No. 283(K) of 2011 have not challenge the rule. Therefore, this court has to go by the provision of law as it is given. In view of the provision of the rules given above, the writ petition in the two writ petitions could not have been given any preferential treatment in regard to promotion or regularisation in the post of SDO(E) ahead of his seniors in the cadre of J.E. In fact for the same reason, this court in the two writ petition in WP(C) No. 191(K) of 2004 and WP(C) No. 250(K) of 2004 had directed that DPC be held for promotion to the post of SDO(E) held by the petitioner within 3 months. In other words, the issue had been already decided by this court in the order dated 3.5.2005, passed in the two writ petitions. Therefore, without wasting much space, it is concluded that the petitioner was not eligible for promotion at the time the 3 DPCs were held on 5.8.2005, 11.8.2005 and 5.12.2005, as such, he could not have been considered for promotion to the post of SDO(E). Accordingly, the first writ petition being WP(C) No. 283(K) of 2011 is dismissed. However, so much time has gone by since the 3 DPCs were held and, therefore, so much change must have taken place in the department specially in the seniority position of the petitioner in the cadre of J.E. In fact Mr. K. Wotsa, learned senior Government Advocate admitted that the petitioner is the senior most among the J.Es now. If that be so, the State respondents should hold DPC as soon as possible but not later than 2 months from today and consider the case of the writ petitioner for regularisation in the post of SDO(E). 12. K. Wotsa, learned senior Government Advocate admitted that the petitioner is the senior most among the J.Es now. If that be so, the State respondents should hold DPC as soon as possible but not later than 2 months from today and consider the case of the writ petitioner for regularisation in the post of SDO(E). 12. Corning to the second writ petition in WP(C) No. 69(K) of 2012, there is no doubt that as per the order dated 3.6.2005, of this High Court, passed in WP(C) No. 191(K) of 2004 and WP(C) No. 250(K) of 2004, the petitioner should have been reverted to his substantive post that is, J.E. but to do so after 8 years that too when so many change had taken placed appears to be quite unreasonable because by then those who were senior to the petitioner have already been placed to their rightful places and post held by the petitioner could have been one to which he could have been considered for regularisation. The authorities should have looked into all such facts and circumstances, and acted accordingly so that no injustice is caused to anybody including the petitioner. Further, since the petitioner is stated to have continued in the same post, though on officiating basis, in view of the stay order passed by this court in that writ petition there is no need of removing him from that post of SDO(E) and to revert him to his substantive post specially when his case for regularisation to the post of SDO(E) is ripen and has been directed to be considered within 2 months in the above writ petition. As such, the Notification dated 22.03.2012, is quashed and set aside. 13. In regard to the third writ petition, it has been stated by Mr. K. Wotsa, learned senior Government advocate that the name of the respondent No. 5 [the writ petitioner in the earlier two petitions, i.e., WP(C) No. 283(K) of 2011 and WP(C) No. 69(K) of 2012], was mentioned or included inadvertently, therefore, the respondents are prepared to review the same and to issue necessary order. Mr. C.T. Jamir, learned senior counsel for the respondent No. 5 submitted that if such plea is allowed to be taken so many Government orders can be withdrawn and in such situation there would be chaos and uncertainty in the society. Mr. C.T. Jamir, learned senior counsel for the respondent No. 5 submitted that if such plea is allowed to be taken so many Government orders can be withdrawn and in such situation there would be chaos and uncertainty in the society. The learned counsel also submitted that since the respondent No. 5 (the writ petitioner in the earlier two writ petitions) has been serving in the post of SDO(E) though on officiating basis for a long time, the same cannot be ignored while considering his seniority among the serving SDO(E) of the department. Considering the same, the department had placed him higher in the seniority list above the writ petitioners [WP(C) No. 22(K) of 2017]. The learned counsel referred to the Memorandum dated 21.7.2016, issued by the department which is nothing but tentative seniority list of SDOs in support of his submission. The learned counsel thereafter continued his submission by stating that, therefore, the Chief Engineer, Department of Power, Nagaland, Kohima, was right in having proposed the name of the respondent No. 5 for promotion to the post of Executive Engineer. Mr. Apok Pongener, learned counsel as stated above had submitted that the respondent No. 5 is yet to be born in the cadre, therefore, his name cannot be counted among the names of the persons who are holding the post of SDO(E) on regular basis, as such, he cannot be eligible for promotion to the post of Executive Engineer. Since, the respondent No. 5 is yet to be regularised in the post of SDO(E), it is premature at this stage to propose his name for promotion to the post of Executive Engineer. As rightly pointed out he is yet to be bom in the cadre of SDO(E). Only when the exercise for regularisation of his promotion to the post of SDO(E) is completed his seniority in that cadre would be determined which would in turn revealed as to whether he would be eligible for promotion to the post of Executive Engineer. Therefore, it is concluded that the proposal is premature. As such, it cannot be acted upon. Accordingly, the same is quashed and set aside in respect of the respondent No. 5. With the above conclusions, observations and directions, these three writ petitions are disposed.