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2018 DIGILAW 1001 (GAU)

T. Jamedi Longkumer v. State of Nagaland

2018-07-02

SONGKHUPCHUNG SERTO

body2018
JUDGMENT & ORDER : S. Serto, J. This is a petition under Article 226 of the Constitution of India praying for quashing and setting aside the impugned notifications (i) dated 29.06.2010 (at Annexure -M of the Writ petition), (ii) Notification dated 21.03.2011 (at Annexure-L of the writ petition) and, (iii) Notification dated 30.03.2017 (at Annexure-H of the writ petition). And further praying for a direction directing the respondent authorities to fix the seniority of petitioners above the private respondents as per merit list notified by Nagaland public Service Commission (NPSC). 2. Heard Mr. C.T. Jamir, learned senior counsel for the petitioners assisted by Mr. Wati Jamir, learned counsel and also heard Ms. S. Mere, learned Govt. Advocate appearing for the official respondents. 3. The brief facts and circumstances reading to the filing of the writ petition are as follows: In the year 2004, Nagaland Public Service Commission (NPSC) conducted a recruitment examination for filling up various vacancies in the post of lecturer under the Department of Education, Government of Nagaland. The petitioners and the Respondent No. 4 and 5 also appeared in that examination and all of them were selected. In the selection/merit list published by Nagaland Public Service Commission (NPSC) the petitioners and the respondents 4 and 5 were placed as follows:- Sl. No. In the merit list Name of the petitioners/respondents 1 1 Dr. T. Jamedi Longkumer (petitioner No. 1) 2 11 Smti. Vivi Swu (petitioner No. 2) 3 22 Ms. Jane Roseline Yimchunger (Respondent No. 4) 4 23 Dr. Benjongkumba (petitioner No. 3) 5 29 Smti. Sutoli Sema (petitioner No. 4) 6 37 Smti Imtikokla Ozukum (petitioner No. 5) 7 46 Mr. Veta Nyienu (respondent No. 5) 4. Soon after the result was declared and recommendation was made, Department of Higher and Technical Education, Government of Nagaland, by appointment Order No. HTE/5-3/2004, dated 30.09.2004, appointed the successful candidates including the petitioners No. 1, 3 & 4 and the two private respondents i.e. the respondent Nos. 4 and 5 to the post of Lecturer/Assistant Professor. For the petitioners No. 2 and 5, their appointment was deferred due to pending litigation. 4 and 5 to the post of Lecturer/Assistant Professor. For the petitioners No. 2 and 5, their appointment was deferred due to pending litigation. However, when the litigation was finally over, vide order dated 20th December 2006, No. HTE/5-13/2004 issued by the Principle Secretary to the Government of Nagaland, Department of Higher Education, they were also appointed to the post of Lecturer/Assistant Professor and vide Notification No. HTE/5-13/2004 dated 12th April 2007 issued by the same authority, their seniority was protected as per the merit list published by NPSC in 2004. 5. In the year 2016, a tentative seniority list of officers under department of Higher and Technical Education was circulated vide circular dated 24.06.2016. In that circular the private respondents No. 4 and 5 were placed higher above the petitioners in the list of Seniority. Being aggrieved by the seniority list representation dated 30.06.16 was submitted by 10 persons including the petitioners. However, without taking into consideration the facts and circumstances stated in their representation, Secretary to the Government of Nagaland, department of Higher and Technical Education issued another tentative seniority list of Officers under Higher Education vide Memorandum No. HTE/HE-8-91/201/854, dated 30th August 2017. In that seniority list the name of respondent No. 4 figured at serial No. 185 and that of the respondent no. 5 figured at Serial No. 184 while the names of the petitioners figured at serial No. 203, 213, 223, 218 and 236 respectively. Being aggrieved by the said tentative seniority list, the petitioners along with other lecturer's submitted another representation, dated 18th September 2017 to the Secretary, Department of Higher and Technical Education Government of Nagaland, praying for rectification of the seniority list based on the merit list published by the NPSC 2004. No positive responds came forth from the department nor from the government. Therefore, the petitioners along with 651 others who were aggrieved by the said tentative seniority list submitted another representation on 28 September 2017, to the Secretary of Higher and Technical Education government of Nagaland, reiterating their objection and their claims submitted earlier against the tentative seniority list. No positive responds came forth from the department nor from the government. Therefore, the petitioners along with 651 others who were aggrieved by the said tentative seniority list submitted another representation on 28 September 2017, to the Secretary of Higher and Technical Education government of Nagaland, reiterating their objection and their claims submitted earlier against the tentative seniority list. The said representation also did not yield any result, therefore, the petitioners has come to this court by filing the instant writ petition and praying for quashing and setting aside of the impugned tentative seniority list and at the same time praying for issuance of appropriate writ or direction directing the respondents to determine their seniority vis-a-vis the respondent No. 4 and 5 in accordance with the merit list published by NPSC in 2004. 6. Mr. C.T. Jamir, learned senior counsel submitted that by ignoring the merit list declared by the NPSC in pursuance of which the petitioners and the respondents were appointed to the post of Lecturer, and by ignoring the settled principles of law, but by taking into account the past contract services of the two respondents, the State respondents have illegally placed the two private respondents i.e respondent No. 4 and 5 above the petitioners in the seniority list. Therefore, the impugned seniority list is not sustainable in law and the same deserves to be quashed and set aside. It is also submitted by the learned senior counsel that it was only after the tentative seniority list of 2017 was published, the petitioners came to know that the benefit of past services of the two private respondents have been taken into account while determining the seniority of the Lecturers, therefore, the petitioners did not have any opportunity or occasion to challenge the Notification No. EDS/THE/1-21/98 dated 21/3/2011 wherein and whereby the private respondents were given benefit of their past services regularising their service w.e.f. 31/9/2003 i.e. the date on which they were appointed on contract basis. Therefore, the petitioners cannot be blamed for not challenging the said Notification dated 21/3/2011 earlier. Therefore, the petitioners cannot be blamed for not challenging the said Notification dated 21/3/2011 earlier. The learned senior counsel also further submitted that by application of the Notification dated 21/3/2011 the seniority of the private respondents cannot be counted from the date of their appointment to the post of Lecturers on contract basis, because their appointment was on contract basis and it cannot be linked with their appointment given by virtue of the result of the competitive examination conducted by the NPSC, and, because the formula of giving benefit of one year service in Government service for every 3 or 4 years of continuous past adhoc/contract service cannot be applied in the case of the respondents since they have not even completed one year's contract service when they were appointed in 2004, in pursuance of the merit list published by the NPSC. The learned senior counsel also submitted that Notification dated 21/3/2011 itself was issued without taking into account the purpose and ambit of the scheme/formula adopted by the Government. According to the learned senior counsel the Notification dated 21/3/2011 was published for determining the inter-se seniority of the Lecturers of the private colleges taken over by the Government, therefore, the same cannot be the basis for determining the seniority of the private respondents in the cadre of Lecturers in Government colleges. 7. Mr. C.T. Jamir further submitted that the petitioners also came to discover after the tentative seniority list was published in 2017 that vide Notification No. EDS/THE/1-21/98 dated 29/6/2010, the private respondents were also given the benefit of the same formula or scheme mentioned in the previous paragraph. According to him, for the same reasons mentioned above, the private respondents cannot be given the benefit of the past services. Further more, the learned senior counsel submitted that the appointment of the private respondents in 2004 was in pursuance of the merit list published by the NPSC and not a case of regularisation of their contract service, therefore, they cannot come under the category of regularised contract employees by which they can claim the benefit of the formula of 3:1 or 4:1 as mentioned above. Lastly, the learned senior counsel submitted that the scheme of giving benefit of one year in Government service for every 3 years of continuous adhoc/contract services or in the ratio of 4:1 has been put to challenge in W.P.(C) No. 24(K)/2008, W.P.(C) No. 91(K)/2008 and W.P.(C) No. 70(K)/2007 and this Court vide order dated 28/5/2009 had quashed and set aside the Notification dated 16/11/2006 by holding that retrospective seniority cannot be given from a date when the incumbent had not been born in a cadre and more particularly when it would effect others who are already borned in the cadre. Therefore, the whole basis of putting the private respondents above the petitioners in the seniority list of Lecturers has already been removed, as such, they cannot be placed above the petitioners in the seniority list. 8. Ms. S. Mere, learned Government Advocate appearing for the State respondents submitted that the private respondent No. 4 and 5 were granted the benefit of the scheme of 3:1 and 4:1 given in the Notification dated 21/3/2011, since they were already in service on contract basis in private colleges, therefore, there is nothing illegal or wrong in the tentative seniority list under challenged. The learned Government Advocate further submitted that the seniority list under challenge in any case is tentative and subject to modification/changes after hearing all the Stake holders and after taking into consideration all the relevant documents, as such, the writ petition is pre-mature and uncalled for. 9. From the submissions of both the learned counsels the admitted facts which are relevant for deciding this case are as follows; That the petitioners and the private respondents appeared together in the competitive examination conducted by the NPSC for recruitment to the post of Lecturer and as per the merit list, the petitioner No. 1 and 2 were placed above the respondent No. 4 and 5 and the petitioner Nos. 3 and 4 were placed below the respondent No. 4 but above the respondent No. 5 in the merit list declared by the NPSC vide Notification dated 29/7/2004. Further, that the petitioners and the private respondents were appointed to the post of Lecturers in pursuance of the merit list published by the NPSC. That the private respondent Nos. 4 and 5 were appointed on contract as Lecturers in private college before they were appointed in pursuance of the recommendation of NPSC. Further, that the petitioners and the private respondents were appointed to the post of Lecturers in pursuance of the merit list published by the NPSC. That the private respondent Nos. 4 and 5 were appointed on contract as Lecturers in private college before they were appointed in pursuance of the recommendation of NPSC. And that in the impugned seniority list published vide Memorandum No. HTE/HE/8-91/2017-854, dated 30/8/2017 the private respondents were placed above the petitioners by giving them the benefit of their past services as contract employees based on Notifications No. EDS/THE/1-21/98 dated 21/3/2011 and Notification No. EDS/THE/1-21/98 dated 29/6/2010. 10. From the above facts what can be seen is that the two appointments of the private respondents i.e. their appointment on contract and their later appointment by virtue of having been selected on the basis of merit in the examination conducted by the NPSC are totally different and not connected at all. To make it more clear it may be stated that the appointment given on the basis of the result of the examination conducted by the NPSC was not a process undertaken for regularisation of their contract service. Therefore, benefit intended to be given by the two Notifications of 2010 and 2011 could not have been extended to them. Moreover, the scheme or formula of 3:1 and 4:1 i.e giving the benefit of 1 year in Government service for every 3 or 4 years of continuous service in the past cannot be applied in the case of the 2 private respondents because of the simple reason that they have neither completed 3 nor 4 years in service on contract when they were appointed in 2004 on the basis of merit list published by the NPSC. Further, the scheme under which the private respondents were given benefits of their past services has been quashed and set aside by this Court in the 3 writ petitions mentioned by the learned senior counsel for the petitioner i.e. W.P.(C) No. 24(K)/2008, W.P.(C) No. 91(K)/2008 and W.P.(C) No. 70(K)/2007. Therefore, the scheme no longer survives, as such, benefits intended to be given under the same could not have been extended any longer to any person or persons. Lastly but not the least as per the settled principle of law a government servant can not be given seniority in retrospective because seniority will be counted only when a person is borned in the cadre. Lastly but not the least as per the settled principle of law a government servant can not be given seniority in retrospective because seniority will be counted only when a person is borned in the cadre. On this the relevant portion of the judgment of Hon'ble Supreme Court passed in the case of Uttaranchal Forest Rangers' Association (Direct Recruit) and Others v. State of U.P. and Others reported in (2006) 10 SCC 346 , may be extracted for easy reference. "38. This Court has consistently held that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime." 11. In view of the above, the tentative seniority list is quashed and set aside, and the respondent authorities in accordance with settled principle of law are directed to determined the seniority of the petitioners and the respondents as per their standing in the merit list published by NPSC. And as for the two Notifications, since this Court had already set aside the scheme they are non-est in the eye of law, therefore, need for quashing or setting them aside does not arise. It is made clear that the respondents by taking into account the observation and conclusion drawn shall place the petitioners and private respondents in their right place in the seniority list which should be finalised at the earliest but not later than three months from the date of receipt of a copy of this judgment and order. 12. With this, the writ petition is disposed of.