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2017 DIGILAW 345 (GAU)

I. Sino Phom v. State of Nagaland

2017-03-17

L.S.JAMIR

body2017
JUDGMENT & ORDER : L.S. Jamir, J. This writ petition is filed challenging the Notification dated 22.12.2015 by which the post of Officer on Special Duty (OSD) (Skill Development) is continued on permanent basis in the Planning and Coordination Department as Ex-Cadre post with immediate effect. By the same notification, the service of the petitioner is absorbed to the Ex-Cadre post of OSD (Skill Development) in the pay hand of Rs. 15,600-39,100 plus Grade Pay of Rs. 6,600/- P.M. The Notification further provides that the ex-cadre post of OSD (Skill Development) so created shall be personal to the petitioner. The private respondent Nos. 3 to 24 have filed an I.A. being I.A. No. 11 (K) of 2016 in the present writ petition seeking leave for impleadment as party respondents in the writ petition. The petitioner had raised the issue of locus standi of the private respondent Nos. 3 to 24 to participate in the present writ petition. After hearing the parties, the I.A No. 11 (K) of 2016 was allowed by order dated 02.03.2016 allowing the applicants to be impleaded as party respondents Nos. 3 to 24. However, the locus standi of the private respondent Nos. 3 to 24 was kept open. 2. Heard Mr. A. Zhimomi, learned counsel for the petitioner. Also heard Mr. T.B. Jamir, learned Senior Additional Advocate General, Nagaland appearing for the State respondents as well as Mr. C.T. Jamir, learned senior counsel assisted by Mr. Wati Jamir, learned counsel appearing for the private respondent Nos. 3 to 24. 3. Mr. A. Zhimomi, learned counsel for the petitioner at the outset submits that the private respondents have no locus standi in the present case inasmuch as they had already filed a writ petition being W.R(C) No. 53(K)/2013 wherein they had challenged the Cabinet decision dated 12.12.2012 in respect of Agenda No. 13 and the impugned Notification dated 25.03.2013 by which the Ex-cadre post of OSD (Skill Development) in the Planning & Co-ordination Department, Nagaland Kohima was converted into a regular cadre w.e.f. 19.12.2012. Further, by the same Notification, the present petitioner who was the respondent no. 7 in the said writ petition was absorbed permanently as OSD (Skill Development). This Court, after hearing the parties had dismissed the said writ petition by judgment and order dated 30.6.2015. Further, by the same Notification, the present petitioner who was the respondent no. 7 in the said writ petition was absorbed permanently as OSD (Skill Development). This Court, after hearing the parties had dismissed the said writ petition by judgment and order dated 30.6.2015. Further, as no appeal was filed against the judgment and order dated 30.06.2015 the same had attained finality and therefore the private respondents being without any locus standi should not be heard. On merits, learned counsel for the petitioner submits that the petitioner has been serving as OSD (Skill Development) which was created under the Department of Planning and Coordination in the year 2011. He submits that pursuant to the formulation of the National Policy on Skill Development and launching of the Coordination Action on Skill Development, the Government of Nagaland set up a Skill Development Mission to address issues relating to skill development in the State. The Department of Planning and Coordination was required to coordinate and give impetus to the multi-sectoral task of skill development. Therefore, a proposal was submitted for creation of a post of OSD (Skill Development), The Personal and Administrative Reforms Department accorded approval for creation of the post of OSD on Ex-Cadre basis for a period of two years which was equivalent to the rank and status of Assistant Development Commissioner under the Planning and Coordination Department. The Finance Department accorded to the proposal by a note dated 09.11.2010 for creation of the post of OSD on Ex-Cadre basis for a period of two years. Thereafter, the Post Creation Committee in its meeting held on 14.01.2011 recommended for creation of one post of OSD (Skill Development) in the Planning and Coordination Department which was communicated by Memorandum dated 25.01.2011. Accordingly, the proposal for creation of OSD (Skill Development) was placed before the Cabinet by way of Cabinet Memorandum dated 03.02.2011. The said Cabinet Memorandum proposed for creation of the post of OSD, Ex-Cadre (Skill Development) in the rank and status of Assistant Development Commissioner in the Planning and Coordination Department for two years. It was also mentioned in the said Memorandum that the department desires to appoint the petitioner who was at the relevant point of time serving as Assistant Professor in the Department of Mass Communication under the Nagaland University. It was also mentioned in the said Memorandum that the department desires to appoint the petitioner who was at the relevant point of time serving as Assistant Professor in the Department of Mass Communication under the Nagaland University. The Memorandum further indicated that the petitioner has a Master Degree in Mass Communication and that her academic experience suited the responsibility. 4. It is submitted that the Cabinet approved the proposal in its meeting held on 26.5.2011 and the same was communicated by letter dated 31.05.2011 from the Cabinet Secretariat (Cabinet Cell). Thereafter, the post of OSD (Skill Development) under the Planning and Coordination Department was created which was also communicated to the Office of the Accountant General, Nagaland by letter dated 12.07.2011. The petitioner was appointed to the said post of OSD (Skill Development) under the Planning and Coordination Department, Government of Nagaland by order dated 16.11.2011. The appointment was on deputation basis for a period of two years. In the meantime, a proposal was made by another Cabinet Memo dated 18.12.2012 by the Department of Planning and Coordination proposing for making the post of OSD (Skill Development) a permanent post under the Department. It was stated in the said Memorandum that the skill development has been identified as an important priority for the 12th Plan and therefore, the post of OSD (Skill Development) may be made a permanent post. Further, the Cabinet Memorandum mentioned that the petitioner who is on deputation from Nagaland University to the post of OSD (Skill Development) may be allowed to continue on deputation for a period of another two years. Die Cabinet in its meeting held on 18.12.2012 took a decision that the post of OSD (Skill Development) under the Planning and Coordination Department should continue on a permanent basis and further decision was taken to absorb the deputation service of the petitioner as OSD (Skill Development). The said decision of the Cabinet was communicated by Office Memorandum dated 19.12.2012 and since then the post of OSD (Skill Development) became a permanent service under the Department of Planning and Coordination. There were some confusion and therefore, the Department of Planning and Coordination by letter dated 13.02.2013 sought clarification from the Cabinet Secretariat as to whether the post of OSD (Skill Development) should be an Ex-Cadre post. The Cabinet Secretariat by letter dated 27.02.2013 replied back stating that the Cabinet. There were some confusion and therefore, the Department of Planning and Coordination by letter dated 13.02.2013 sought clarification from the Cabinet Secretariat as to whether the post of OSD (Skill Development) should be an Ex-Cadre post. The Cabinet Secretariat by letter dated 27.02.2013 replied back stating that the Cabinet. In its meeting held on 18.12.2012, decided that the post of OSD (Skill Development) under the Planning and Coordination Department was continued on permanent service (regular cadre) and also approved for absorption of service of the petitioner against the post of OSD (Skill Development) under the Planning and Coordination Department on a permanent service (regular cadre) on the ground that she hails from a backward tribe. Thereafter, the ex-cadre post of OSD (Skill Development) in the Planning and Coordination Department was converted into regular cadre with effect from 19.12.2012 by Notification dated 25.03.2015. Further, by the same Notification, the service of the petitioner was absorbed permanently against the said post of OSD (Skill Development) with effect from 19.12.2012. 5. Learned counsel for the petitioner submits that the Department of Planning and Coordination does not have service rules for regulating the recruitment and conditions of service of its employees and there are many instances where posts have been filled up by deputationist who were subsequently absorbed in the Department. It is also submitted that the Draft Service Rules called the Nagaland Planning Machinery Service Rules, 2010 is yet to be notified till date for the said draft service rules been followed in the past. In the meantime, some employees under the Department took grievances against the absorption of the petitioner and therefore, challenged the Cabinet decision dated 18.12.2012 and Notification dated 25.03.2013 by filing W.P (C) No. 53 (K) of 2013. The petitioner w as also arrayed as respondent No.7 in the said writ petition. Thereafter by judgment and order dated 30.06.2014, WP(C)No. 53 (K) of 2013 was dismissed. As such, the Notification dated 25.03.2013 by which the post of OSD (Skill Development) was made a regular cadre and the absorption of the petitioner against the said post was upheld by this Court. He also submits that no appeal has been filed against the judgment and order dated 30.06.2014 passed in W.P (C) No. 53 (K) of 2013 and therefore, the same had attained finality. He also submits that no appeal has been filed against the judgment and order dated 30.06.2014 passed in W.P (C) No. 53 (K) of 2013 and therefore, the same had attained finality. It is submitted that there was a campaign in the Department by some persons to circumvent the decision of this Court and to get the Notification dated 25.03.2013 modified. Therefore, the matter was placed again before the Cabinet and the Cabinet in its meeting held on 05.08.2015 decided and directed that appropriate action be taken by the Planning and Coordination Department in terms of the earlier decision of the Cabinet taken on 18.12.2012 and the verdict of this Court. The same was communicated by the Cabinet Secretariat by Office Memorandum dated 12.08.2015. However, by Notification dated 22.12.2015 the earlier Notification dated 25.03.2013 was superseded and modified whereby the post of OSD (Skill Development) was continued on a permanent basis but as an ex-cadre post. He submits that the said Notification is purported to have been issued on the basis of the Cabinet decision dated 19.12.2012 and 12.08.2015 and the judgment and order of this Court dated 30.06.2015. Further, the Notification dated 22.12.2015 absorbed the petitioner to the ex cadre post of OSD (Skill Development) with effect from 19.12.2012 and further provided that the ex-cadre post of OSD (Skill Development) so created shall be personal to the petitioner. 6. Learned counsel for the petitioner submits that the Cabinet decision dated 18.12.12 and the Notification dated 25.03.2013 were questioned in W.P (C) No. 53 (K) of 2013. Therein, the State respondents had strongly contended that the said post of OSD (Skill Development) is a regular cadre and had therefore, defended their action while issuing the Notification dated 25.03.2013 whereby, the ex-cadre post of OSD (Skill Development) in the Planning and Coordination Department was converted into a regular cadre with effect from 19.12.2012. However, in the present case, when the facts and circumstances of the case remains the same taken and now, the State respondents are taking a very different stand which is not permissible in law. Learned counsel for the petitioner places reliance in the case of: (1) P. Sambamurthy & Ors. However, in the present case, when the facts and circumstances of the case remains the same taken and now, the State respondents are taking a very different stand which is not permissible in law. Learned counsel for the petitioner places reliance in the case of: (1) P. Sambamurthy & Ors. v. State of Andhra Pradesh & Anr., reported in (1987) 1 SCC 362 (2) Bhanu Kumar Jain v. Archana Kumar & Anr., reported in (2005) 1 SCC 787 (3) Ishwar Dutta v. Land Acquisition Collector & Anr., reported in (2005) 7 SCC 190 (4) Ataur Rahman (MD) v. State of Assam, reported in 2014(4) GLT 90 (5) Mulin Kant a Paul v. State of Tripura reported in 2004 (3) GLT 56 (6) U. Mangapati Sarma v. State of Andhra Pradesh & Ors., reported in (2009) 16 SCC 248 (7) Canara Bank & Anr. v. Chairman and Managing Director, Canara Bank & Ors., reported in (2015) 7 SCC 412 (8) State of Madhya Pradesh & Ors. v. Mala Banerjee, reported in (2015) 7 SCC 698 (9) Parisons Agrotech Private Limited & Anr. v. Union of India & Ors. reported in (2015) 9 SCC 657 (10) Union of India & Ors. v. Flight Cadet Ashishi Rai reported in (2006) 2 SCC 364 (11) Shri Loyalakpa Wahengbam Ananta v. The State of Manipur & Ors., reported in 2010 (3) GLT 150. (12) Balbir Singh v. State of H.P. & Ors., reported in (2000) 10 SC 166 (13) State of Haryana ors. v. MP Mohila, reported in (2007) 1 SCC 457 (14)Nisha Devi v. State of Himachal Pradesh & Ors. reported in (2014) 16 SCC 392 (15) Balco Captive Power Plant Mazdoor Sangh & Anr v. National Thermal Power Corporation & Ors., reported in (2007) 14 SCC 234. (16) Ayaaubkhan Noorkhan Path v. State of Maharashtra & Ors.. reported in (2013) 4 SCC 465 (17) Mohinder Singh (all & Anr. v. The Chief Election Commissioner, New Delhi & Ors, reported in AIR 1978 SC 851 (18) Jitendra Kumar & Ors. v. State of Haryana & Anr., reported in (2008)2 SCC 161 (19) Union of India & Anr v. Arulmozhi Iniarasu & Ors., reported in (2011) 7 SCC 397 and in the case of I (20) Official Liquidator v. Dayan and & Ors., reported in (2008) 10 SCC 1 7. Mr. v. State of Haryana & Anr., reported in (2008)2 SCC 161 (19) Union of India & Anr v. Arulmozhi Iniarasu & Ors., reported in (2011) 7 SCC 397 and in the case of I (20) Official Liquidator v. Dayan and & Ors., reported in (2008) 10 SCC 1 7. Mr. T.B. Jamir, learned Senior Additional Advocate General, Nagaland submits that for the members serving under the Department, the requisite qualification is degree post graduate in Economies Statistics/Commerce and Mathematics. However, for the post of OSD (Skill Development), no such mandatory requisite qualification is prescribed and the petitioner who possesses a Degree in Mass Communication and was serving as Assistant Professor was appoints as OSD (Skill Development) considering experience. Therefore, the post of OSD (Skill Development) has been rightly created as Ex-Cadre post in the Department. He submits that the Cabinet Memorandum dated 18.12.2012 prepared by the Department was for making the post of OSD (Skill Development) an Ex-Cadre to a permanent post and not as a regular cadre in the Department. The decision of the Cabinet in its meeting held on 18.12.2012 has approved the proposal of Planning Department for absorption of the deputation service of the petitioner under the Planning and Coordination Department and the Cabinet further decided that the post of OSD (Skill Development) under the Planning and Coordination Department may be continued on a permanent basis. He, therefore, submits that the Cabinet has decided only for absorption of the writ petitioner to the post of OSD (Skill Development) and for continuance of the post of OSD (Skill Development) on a permanent service and that the Cabinet had never approved for making the post of OSD (Skill Development) as a regular cadre. However, the word regular cadre has been added by the Cabinet Secretary in his clarification letter dated 27.02.2013 which is not in consonance with the Cabinet decision. Therefore, the Notification dated 25.03.2013 cannot be given a different and larger meaning with what has been approved by the Cabinet. He has drawn the attention of this Court to FR 9 (4), 9 (22) and 9 (30) which defines cadre, permanent and temporary post. He argues that just because the post of OSD (Skill Development) has been made permanent, the same would not automatically imply that it is a post under regular cadre. He has drawn the attention of this Court to FR 9 (4), 9 (22) and 9 (30) which defines cadre, permanent and temporary post. He argues that just because the post of OSD (Skill Development) has been made permanent, the same would not automatically imply that it is a post under regular cadre. It is submitted that in W.P (C) No. 53 (K) of 2013, this Court did not give any finding that the post of OSD (Skill Development) is a regular post. As such, the impugned Notification dated 22.12.2015 does not circumvent the judgment and order dated 30.06.2014 passed in W.P (C) No. 53 (K) of 2013. It is submitted that from the period 25.03.2013 till the issuance of the Notification dated 22.12.2015 there has been change of circumstances in view of the judgment and order dated 30.06.2014 passed in W.P (C) No. 53 (K) of 2013 and the third Cabinet decision taken on 05.08.2015. The State respondents has been constantly taking a stand which is substantially the same in both the writ petition and there is no contrary stand, on the part of the State respondents. He also submits that any vested right of the petitioner shall have to be traced back to the Cabinet decision dated 18.12.2012 and the petitioner cannot claim a better right than what has been decided by the Cabinet as there has been no decision to make the post of OSD (Skill Development) into a regular cadre. The respondents have issued the Notification dated 22.12.2015 which is in terms of the Cabinet decision dated 18.12.2012. He also submits that the State respondents has issued a tentative seniority list of officers and staff from the level of Additional Development Commissioner to Planning Assistant by Memorandum dated 25.08.2015. Therein, the name of the petitioner does not appear in any of the cadre and the petitioner very significantly has made no objection against non-inclusion of her name in the said tentative seniority list. The conduct of the petitioner would therefore clearly indicate that she never considered herself to be under the Planning and Coordination Department. 8. Learned Senior Additional Advocate General, Nagaland further submits that the judicial review of the Court should confine only to the decision making process and not the correctness of the decision. The conduct of the petitioner would therefore clearly indicate that she never considered herself to be under the Planning and Coordination Department. 8. Learned Senior Additional Advocate General, Nagaland further submits that the judicial review of the Court should confine only to the decision making process and not the correctness of the decision. As the decision is rational, no interference is required more particularly when the Cabinet decision dated 18.02.2012 has not been challenged. Therefore, in the absence of any challenge to the Cabinet decision, the question of judicial review of the decision of the respondents does not arise. He also submits that by issuing the Notification dated 22.12.2015, the rank and status of the petitioner has not been effected and therefore, no constitutional right of the petitioner has been violated. Accordingly, he argues that as the Notification 22.12.2015 has been issued in consonance with the Cabinet decision dated 18.12.2012 no further interference is required by this Court and the writ petition should be dismissed. He has placed reliance in the case of:- (1) Union of India v. Pushpa Rani & Ors., reported in (2008) 9 SCC 242 , (2) State of Haryana v. Piara Singh & Ors., reported in (1992) 4 SCC 118 (3) State of Madhya Pradesh & Ors. v. Shardul Singh, reported in (1970) 1 SCC 108 , (4) The State of Jammu & Kashmir v. Shri Triloki Nath Khosa & Ors., reported in (1974) 1 SCC 19 (5) Gayatri Buragohain & Ors. v. State of Assam & Ors. reported in 2014 (4) GLT 564 (6) CMD/Chairman, Bharat Sanehar Nigam Limited & Ors. v. Mishri Lal & Ors., reported in (2011) 14 SCC 739 , (7) Ispat Industries Ltd. v. Commissioner of Customs, Mumbai, reported in (2006) 12 SCC 583 . (8) Sethi Auto Service Station & Anr. v. Delhi Development Authority & Ors., reported in (2009) 1 SCC 180 , (9) Delhi Development Authority & Anr. v. UEli Electricals Engg. (P) Ltd & Anr., reported in (2004) 11 SCC 2151 and in the case of (10) Mamleshwar Prasad A Anr. v. Kanahaiya Lai (Dead) through LRs, reported in AIR 1975 SC 50 " 9. Mr. C.T. Jamir, learned senior counsel appearing for the private respondent Nos. v. UEli Electricals Engg. (P) Ltd & Anr., reported in (2004) 11 SCC 2151 and in the case of (10) Mamleshwar Prasad A Anr. v. Kanahaiya Lai (Dead) through LRs, reported in AIR 1975 SC 50 " 9. Mr. C.T. Jamir, learned senior counsel appearing for the private respondent Nos. 31 to 24 while responding to the submissions made by the learned counsel for the petitioner that the private respondents has no locus standi, submits that the question of whether OSD (Skill Development) and ADC are of the same cadre and also as to whether their promotional avenues have been affected by permanent absorption of the present writ petitioner has been discussed and a final finding has been given in the judgment and order dated 30.6.2014 in WP(C) No.53(K)/2013. Therefore in the event of allowing the writ petition without hearing the present private respondents would prejudice their rights and interest and therefore the private respondents have locus standi. On merits, learned senior counsel while endorsing the submissions made by the learned Senior Additional Advocate General, Nagaland submits that the impugned Notification dated 22.12.2015 was issued after consideration of the representation made by the private respondents as well as the judgment and order dared 30.06.2014 passed by this Court in WP (C) No. 53(K) of 2013. He submits that if the relief as prayed for, by the petitioner in the present writ petition is granted, the same would effect the promotional avenues of the private respondents. He submits that there has been no representation submitted by the petitioner and that if there is any representation, the same has been made only by the ENPO, ENSF and the Gazetted Officers of ENPO. Learned senior counsel submits that the Notification dated 25.3.2013 has been superseded by the Notification dated 22.12.2015. Therefore, even if the Notification dated 22.12.2015 is quashed by this Court, the Notification dated 25.03.2013 cannot be revived. He strenuously contends that in the absence of any prayer for restoration of the Notification dated 25.3.2013 no relief can be granted to the petitioner inasmuch as, the prayer made in the writ petition is by itself defective. It is also submitted that the impugned Notification has been issued on the basis of the Cabinet decision dated 05.08.2015. The said Cabinet decision dated 05.08.2015 is also not under challenge and therefore, no relief can be granted to the petitioner. It is also submitted that the impugned Notification has been issued on the basis of the Cabinet decision dated 05.08.2015. The said Cabinet decision dated 05.08.2015 is also not under challenge and therefore, no relief can be granted to the petitioner. Learned senior counsel for the private respondents also submits that the post of OSD (Skill Development) may be a permanent post but the incumbent is not permanent and therefore, cannot be brought into regular cadre. He has also referred to paragraph 3, 51, 52, 55 and 56 of the judgment and order dated 30.06.2014 passed in W.P (C) No. 53 (K) of 2013. He contends that no case has been made out by the petitioner for violation of any of her fundamental right by the action of the respondents and therefore, in the absence of such, the writ petition deserves to be dismissed. He submits that the Notification dated 22.12.2015 has been passed on the basis of the Cabinet decision dated 05.08.2013 and the judgment and order dated 30.06.2014 passed by this Court in WP (C) No. 53 (K) of 2013 and therefore, no show cause is required prior to the passing of the impugned Notification dated 22.12.2015. In the facts and circumstances of the case, he submits that if the present writ petition is allowed, it would amount to creation of a post which is not permissible in law and therefore, the same would be contrary to the judgment and order dated 30.06.2014 passed by this Court in W.P (C) No. 53 (K) of 2013. In that view of the matter, he submits that there is no merit in the writ petition and the same should be dismissed and further, places reliance in the case of- (1) Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel & Ors., reported in (2006) 8 SCC 200 , (2) Union of India & Ors. v. Flight Cadet Ashish Rai, reported in (2006) 2 SCC 364 , (3) State of Uttaranchal & Anr. v. Sunil Kumar Vaish & Ors., reported in (2011) 8 SCC 670 , (4) P.U. Jos hi & Ors. v. Accountant General Ahmedabad & Ors., reported in (2003) 2 SCC 632, (5) State of Himachal Pradesh & Ors. v. Flight Cadet Ashish Rai, reported in (2006) 2 SCC 364 , (3) State of Uttaranchal & Anr. v. Sunil Kumar Vaish & Ors., reported in (2011) 8 SCC 670 , (4) P.U. Jos hi & Ors. v. Accountant General Ahmedabad & Ors., reported in (2003) 2 SCC 632, (5) State of Himachal Pradesh & Ors. v. Himachal Pradesh Nizi Vyavsasyik Prishikshan Kendra Sangh, reported in (2011) 6 SCC 597 , (6) Manohar Lal (Dead) by LRS v. Ugrasen (Dead) by LRS & Ors., reported in (2010) 11 SCC 557 and in the case of (7) Amarjeet Singh & Ors. v. Devi Ratan & Ors., reported in (2010) 1 SCC 417 10. I have considered the submissions forwarded by the learned counsel for the parties. 11. The first issue that requires to be considered at this stage is the locus standi of the private respondent Nos. 3 to 24. The private respondents as writ petitioners had filed W.P (C)No. 53 (K) of 2015 challenging the appointment of the present writ petitioner as OSD (Skill Development). The said writ petition was disposed of by judgment and order dated 30.06.2014 with the following findings:- "18. Since there is no regular Service Rules, put in place, it cannot be said that the post of the OSD (Skill Development) Ex-Cadre when converted to a regular post, it becomes a cadre post in the Department in the rank of ADC. Since the petitioners could not establish that the OSD (Skill Development) is a cadre post and since the petitioners also fail to show that incumbents in the post of ADC and OSD are inter-transferable, on this count alone, the present proceeding is liable to be dismissed. 22. However, the Cabinet found her service to be too essential and too indispensable and as such, the Cabinet while making the post of OSD permanent in terms of Cabinet Memo dated 18.12.2012, also absorbed the respondent No. 7 against the post of the OSD (Skill Development) which was made permanent with effect from 19.12.2012. Therefore, one cannot find fault with the Cabinet in filing up the post of the OSD by absorbing the respondent No. 7 against such post. 27. Therefore, one cannot find fault with the Cabinet in filing up the post of the OSD by absorbing the respondent No. 7 against such post. 27. In regard to the contention that the post of OSD (Skill Development) is a cadre post in the Department in the rank of ADC which needs to be filled up exclusively by promotion, it has been stated that such a contention is without any substance. In support of such claim, it has been stated that though the rank pay and status of the ADC and the OSD (Skill Development) are similar, yet, those factors alone do not determine if two posts belong to the same cadre. 28. According to the State respondents, duties, responsibilities and functions assigned to a post, are some factors which are to be considered alongside since such factors could play a decisive role in showing if two posts are of same cadre. According to State respondents, the duties, responsibilities and functions assigned to OSD (Skill Development) and to ADC are fundamentally different and as such, on this count alone, this proceeding needs to be rejected holding that the OSD (Skill Development) and the ADC are not the posts of same cadre. 31. The inter-transferability of the incumbents in different posts is yet another factor which could play significant role in determining if two posts are very similar in all respect. But there is nothing on record to show that the incumbent in those two posts are inter-transferable. Rather, all materials available show that the post of ADC and the post of OSD (Skill Development) are not inter-transferable since the functions assigned to those two posts are constitutionally different which strongly demonstrates that the aforesaid two posts are not identical. 50. When the Cabinet Memo dated 3.02.20111 and the Cabinet Memo dated 18.12.2012 is read together with the order dated 24.10.2012, ill would appear more than clear that the functions, duties and responsibilities assigned to OSD (Skill Development) is completely different from the functions, duties and responsibilities, assigned to ADC, otherwise, with the initiation of the aforesaid policies and programmes, the department would have gone for the creation of the post OSD (Skill Development) or it would not have made a search for someone to execute the functions, duties and responsibilities which stood entrusted to the Department under the aforesaid policies and programmes. 51. 51. Inter-transferability between the posts is one important criterion to ascertain if two posts are of same cadre. We have already found that the functions, duties and responsibilities, assigned to the post of ADC and OSD, are fundamentally different. This coupled with the fact that the department had to search for an officer to man the post of OSD (Skill Development) as well as the fact that there is no mention what so-ever in the Draft Service Rules about the post of OSD (Skill Development) clearly serve to show that the incumbent in the post of OSD (Skill Development) and incumbent in the post of ADC are not inter-transferable. 52. Once it is found that the functions, duties and responsibilities, assigned to the incumbent in the post of OSD and AIX are different and once it is found that the post incumbents in the post of OSD and the post of the ADC are not inter-transferable, they being some very vital criteria which determine if two posts are of same cadre, there cannot be any escape from the conclusion that the post of OSD (Skill Development) and incumbent in the post of ADC are not inter-transferable. 53. One may note here that there is no evidence whatsoever to show that when the post of OSD was created, anyone from the Department had volunteered to be considered for appointment to the post aforesaid. Rather, all available materials reveal that the Department had to make vigorous search for an officer capable enough to man the post of OSD (Skill Development) effectively and efficiently. Why no one from the Department volunteered to work as OSD? Why did the Department have to make an all out search to find an officer to man the post aforesaid? 54. Reasons are not far to find. The only answer to the above queries is that the department did not have the officer with necessary resources to handle the post of OSD (Skill Development) effectively and efficiently. There are, in my considered opinion, more and more testimonies to the fact that the functions, duties and responsibilities, entrusted to the incumbent in the post of OSD and the functions, duties and responsibilities, commended to the incumbent in the post of ADC are different which again establishes that those two posts are not the posts of same cadre. 55. There are, in my considered opinion, more and more testimonies to the fact that the functions, duties and responsibilities, entrusted to the incumbent in the post of OSD and the functions, duties and responsibilities, commended to the incumbent in the post of ADC are different which again establishes that those two posts are not the posts of same cadre. 55. One may note here that the order under which the post of OSD stood created says that such a post was created in the rank and status of ADC with similar pay scale, yet, it did not speak anything about the mode of filing up of such post. Nor does it speak about the qualification experience etc necessary for vying for such a post. Such disclosure, in the fact and circumstances of the present case, only serves to show that the post of OSD (Skill Development) and the post of ADC are not the posts of same cadre. 56. The petitioners strenuously contend since that the post of ADC is 100% promotional post and since the post of OSD is also a post in the cadre of ADC, it cannot be filled up by deputation. The only mode of filing up of such post is by promotion from the feeder channel. Since the contention that the post of ADC and post of OSD are of same cadre has found to have fallen through, the claim that the post of ADC/OSD are to be filled up only by promotion is also found to be without any substance. 78. Since the recommendation requiring the State respondents to appoint the respondent No. 7 against the post of OSD (Skill Development) or the Notification appointing the respondent No.7 against the post aforesaid pertain to Policy matters, since such policy matters fall in exclusive domain of the executive, since this Court could not notice any infirmity in the impugned recommendation or Notification, this Court is of the opinion that there is no scope for judicial review, the scope of which over matter in question is otherwise very' limited" From the aforesaid, this Court has already came to the finding that functions, duties and responsibilities assigned to OSD (Skill Development) is completely different from the functions, duties and responsibilities assigned to ADC. It was also held that the incumbent in the post of OSD (Skill Development) and the incumbent in the post of ADC are not inter-transferable and that the said two posts are not identical. Further, the writ petition was rejected holding that the post of OSD (Skill Development) and the ADC are not the post of same cadre. As this Court in W.P.(C) No. 53(K)/2013 has already held that the post of OSD (Skill Development) and the ADC are not of the same cadre and that the promotional avenues of the present private respondents shall in no way be effected by absorption of the writ petitioners and more particularly, the judgment and order dated 30.6.2014 having attained finality, this Court is of the considered opinion that no legal rights of the present private respondents shall be effected and they have no locus standi in the present case. 12. On merits, this Court has reconsidered the Cabinet decision dated 18.12.2012 and the Notification dated 25.03.2013 which were the subject matter of W.P (C) No. 53 (K) of 2013. While considering W.P (C) No. 53 (K) of 2013, the letter dated 27.02.2013 of the then Cabinet Secretary was also considered. 13. The records submitted by the learned Senior Additional Advocate General, Nagaland as well as the Cabinet Memo dated 27.7.2015 which is available in the record furnished by the learned Senior Additional Advocate General, Nagaland has also been considered. 14. The issuance of the Notification dated 25.03.2013 by which the Ex-Cadre post of OSD (Skill Development) in the Planning and Coordination Department, Nagaland, Kohima was converted into a regular cadre with effect from 19.12.2012 was on the basis of the Cabinet decision dated 18.12.2012. The same was also issued after clarification was given by the Cabinet Secretary in the communication dated 27.02.2013. Thereafter, W.P (C) No. 53 (K) of 2013 came to be filed by the present private respondents which was dismissed. This would indicate that the Cabinet decision dated 18.12.2012 and the Notification dated 25.03.2013 were not interfered with after being reviewed by this Court. 15. Thereafter, W.P (C) No. 53 (K) of 2013 came to be filed by the present private respondents which was dismissed. This would indicate that the Cabinet decision dated 18.12.2012 and the Notification dated 25.03.2013 were not interfered with after being reviewed by this Court. 15. The only question that arises is whether there was a change of circumstances necessitating the issuance of the impugned Notification dated 22.12.2015 by which the post of OSD (Skill Development) is continued on permanent basis in the Planning and Coordination Department as Ex-Cadre post and that said Ex-Cadre post of OSD (Skill Development) being made personal to the petitioner. On consideration of the records more particularly, the Cabinet Memorandum dated 27.07.2015, this Court does not find any change of circumstances permitting the respondents to issue the said impugned Notification dated 22.12.2015. The Cabinet Memorandum dated 27.07.2015 on a detail scrutiny by this Court does not indicate any ground for converting the post of OSD (Skill Development) into an Ex-Cadre post. There is no mention in the said Cabinet Memorandum with regard to converting the post of OSD (Skill Development) into an Ex-Cadre post. It was for this reason that the Cabinet in its meeting held on 05.08.2015 had directed the Planning and Coordination Department to take action in terms of the earlier decision of the Cabinet taken on 18.12.12 and the verdict of this Court. 16. In the facts and circumstances as discussed herein above this Court is of the considered opinion that there was no change of any circumstances since the issuance of the Notification dated 25.03.2013 to permit the respondents more particularly, the respondent No. 2 to issue the impugned Notification dated 22.12.2015. Further, a consideration of the decision of the Cabinet in its meeting held on 05.08.2015 would clearly indicate that the respondent No.2 had exceed its jurisdiction while issuing the impugned Notification dated 22.12.2015. 17. In the facts and circumstances of the case, this writ petition succeeds and accordingly the impugned Notification dated 22.12.2015 is set aside and quashed and the Notification dated 25.03.2013 is brought back to force. 18. Writ petition is allowed. 19. No costs. 20. Return the records to Mr. T.B. Jamir the learned Sr. Addl. Advocate General, Nagaland.