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2018 DIGILAW 675 (GAU)

Kozo Lasuh v. State of Nagaland

2018-04-19

LANUSUNGKUM JAMIR

body2018
JUDGMENT : Lanusungkum Jamir, J. 1. The Government of Nagaland enacted the Directorate of Ministerial Service Rules, 2006 (herein after "the Rules of 2006") under Article 309 of the Constitution. At Schedule-1 of the Rules of 2006, for promotion to the post of UDA, 100% reservation is made by promotion. In the mode of recruitment with regard to the promotion to the post of UDA Directorate, it is provided that the promotion to UDA Directorate shall be made by the appointing authority on the basis of Seniority-cum-Merit from amongst the LDAs in the Directorate who have rendered not less than 5 years and from UDAs of the District/Sub-Divisional Officer having requisite qualifications with total length of service of 12 years (including the service rendered as LDA) and have successfully undergone such training and passed such examinations as may be prescribed by the Government from time to time. The percentage for promotion to the post of Directorate UDA was to be made on the basis of 60% by departmental promotion for Directorate LDA and 40% by promotion from the Districts/Sub-Divisions. The Department of Personnel and Administrative Reforms (Administrative Reforms Branch), Government of Nagaland issued an Office Memorandum dated 02.09.2009 whereby, Schedule-1 to the Rules of 2006 was amended by providing that instead of 40% of vacancies in the cadre of Directorate UDAs, the number is reduced to 25% of vacancies arising in a calendar year for promotion from eligible District/Sub-Division UDAs with immediate effect. However, the total length of service of 12 years (including the service rendered as LDA) for promotion to the rank of UDAs in the Directorate was to continue. Another Office Memorandum dated 17.03.2015 was again issued by the Personnel and Administrative Reforms Department, Administrative Reforms Branch, Government of Nagaland superseding the earlier Office Memorandum dated 02.09.2009 by providing that the vacancies arising in a calendar year for promotion of eligible District/Sub-Division UDAs to come to the Directorate as UDAs should reserve 15% of posts instead of 25% with immediate effect. However, the total length of service of 12 years (including the service rendered as LDA) for promotion to the rank of UDA in the Directorate was to continue. 2. The present writ petition pertains to filling up of one post of UDA in the Directorate by the respondent No. 4 from the District in the vacancies arising in the year 2014. 2. The present writ petition pertains to filling up of one post of UDA in the Directorate by the respondent No. 4 from the District in the vacancies arising in the year 2014. The petitioners alleges that the promotion of the respondent No. 4 from the District UDA to the Directorate UDA has been done in violation of the Office Memorandum dated 17.03.2015 which provides for only 15% reservation of posts arising in a calendar year to the District/Sub-Division UDA's to come to the Directorate as UDAs. 3. Heard Mr. C.T. Jamir, learned senior counsel assisted by Mr. Wati Jamir, learned counsel appearing for the petitioners. Also heard Ms. Inaholi, learned Government Advocate appearing for the State respondent Nos. 1 to 3 as well as Mr. Apok Pongener, learned counsel appearing for the respondent No. 4. 4. Mr. Apok Pongener, learned counsel appearing for the respondent No. 4 at the outset has raised preliminary objection to the maintainability of the writ petition on the ground that the petitioners, except the petitioner No. 5 has no locus standi to challenge and question the absorption of the respondent No. 4 in the Grade of Directorate UDA inasmuch as, they did not have the qualified length of service of minimum of 5 years in the lower grade of LDA to be considered for promotion to the post of UDA at the relevant point of time when the respondent No. 4 was absorbed as UDA Directorate by the order dated 22.09.2015. He submits that the petitioner Nos. 1, 2, 6, 7, 8 and 9 were all appointed/regularized as Directorate LDAs in the year 2011 and the petitioner No. 3 was regularized in the year 2013 as LDA Directorate and the petitioner No. 4 was regularized as LDA on 28-09-2010 and therefore, they have not completed the qualifying service of 5 years as stipulated in Schedule-1 of the Rules of 2006 which was continued by the Office Memorandum dated 2.9.2009 and 17.03.2015. As such, the petitioners do not have the locus to institute the present writ petition against the respondent No. 4 inasmuch as, no legal right of the petitioners have been infringed. It is also submitted that the petitioners have stated that they have a common cause of action and therefore the writ petition has been filed jointly. As such, the petitioners do not have the locus to institute the present writ petition against the respondent No. 4 inasmuch as, no legal right of the petitioners have been infringed. It is also submitted that the petitioners have stated that they have a common cause of action and therefore the writ petition has been filed jointly. He however, submits that there is no common cause of action inasmuch as no legal rights of the petitioners except the petitioner No. 5 has been infringed and therefore on this ground too, the writ petition should be dismissed. Learned counsel for the respondent No. 4 has placed reliance in the case of (i) Aya Aub Khan Noorkhan Pathan Vs. State of Maharashtra & Ors., reported in (2013) 4 SCC 465 , (ii) Dimasa Associates & Ors. Vs. North Cachar Hills Autonomous Council & Ors., reported in 2009 (3) GLT 442, (iii) Saikat Debbarma & Ors. Vs. State of Tripura & Ors., reported in 2011 (2) GLT 811 and in the case of Mina Ram Kumar & Ors. Vs. State of Assam & Ors., reported in 2014 (2) GLT 480. In reply, Mr. C.T. Jamir, learned senior counsel for the petitioners submits that at the time the respondent No. 4 was illegally promoted, all the petitioners were eligible to be considered for promotion to the posts of UDA Directorate as they have fulfilled the eligibility criteria provided under the Rules of 2006. However, as the right of the petitioners for consideration for promotion under the 85% quota reservation was not done and instead the respondent No. 4 was illegally promoted against the quota meant for the LDAs of Directorate by the impugned order dated 22.09.2015, and therefore, the petitioners have locus to file the present writ petition and the preliminary issue raised by the learned counsel for the respondent No. 4 is frivolous. He also submits that the Rules of 2006 is silent as to whether the 5 years length of service is to be computed from the date of promotion/joining as LDA or on regularization. Therefore, in the absence of any provisions with regard to computing of the length of service of 5 years, the respondent No. 4 cannot take the ground that such length of service has to be computed only from the date of regularization. On this ground, the preliminary issue deserves to be rejected. 5. Therefore, in the absence of any provisions with regard to computing of the length of service of 5 years, the respondent No. 4 cannot take the ground that such length of service has to be computed only from the date of regularization. On this ground, the preliminary issue deserves to be rejected. 5. On merits, learned senior counsel for the petitioners submits that the petitioner Nos. 1, 2 and 3 are the senior most LDAs and their next promotional post is to the post of Directorate UDA. The petitioner Nos. 4, 5, 6, 7, 8 and 9 were recently promoted as Directorate UDAs and the petitioners are commonly aggrieved by the illegal absorption of the respondent No. 4 to the post of Directorate UDA in violation of the Rules of 2006. He submits that the earlier Service Rules of 2006 provides that 60% of the posts of UDAs are to be filled up by promotion from amongst the Directorate LDAs who has rendered not less than 5 years and 40 % by promotion from District/Sub-Division UDAs with total length of service of 12 years (including the service rendered as LDA). The Government thereafter had issued the Office Memorandum dated 02.09.2009 reducing the 40% promotion quota for District/Sub-Division Division UDAs for promotion to the post of UDAs Directorate by 25% of the vacancies arising in a calendar year. Further, another Office Memorandum dated 17.03.2015 was issued providing that 15% of the posts of Directorate UDAs that arose in a calendar year should be reserved for promotion of District/Sub-Division UDAs instead of 25 % as provided by the earlier Office Memorandum dated 02.09.2009. Therefore, 85% of the posts of Directorate UDAs have to be filled up by the Directorate UDAs and 15% of the posts by District/Sub-Division UDAs. 6. It is submitted that the respondent No. 4, who was serving as District UDA has been posted and deployed in the State Mission Authority (SMA), Sarva Shikshya Abhiyan (SSA) as Office Assistant-cum-Accountant on 03.11.2003 under the Directorate of School Education. Attempts were made for conversion of the post held by the respondent No. 4 to that of Directorate UDA. However, such proposal was turned down by the P & AR Department by its office noting dated 07.04.2014 which was also communicated to the respondent No. 3 by letter dated 11.04.2014. Attempts were made for conversion of the post held by the respondent No. 4 to that of Directorate UDA. However, such proposal was turned down by the P & AR Department by its office noting dated 07.04.2014 which was also communicated to the respondent No. 3 by letter dated 11.04.2014. He submits that one Smti Khriezomeno serving as UDA in the Directorate was promoted to the rank of Assistant Superintendent by Notification dated 20.02.2014. Against the vacancy caused by the promotion of the said Smti Khriezomeno, the Department of School Education conveyed the approval for absorption/promotion of the respondent No. 4 who was serving as UDA District to the post of UDA Directorate which has been done in violation of the 85:15% reservation quota. The said absorption/promotion of the respondent No. 4 was also made without considering the case of the petitioners for promotion to the post of UDA Directorate. As the absorption of the respondent No. 4 to the post of Directorate UDA had serious implications for all the ministerial staff under the Directorate, the matter was taken up by the Ministerial Staff Welfare Association, Directorate of School Education and thereafter, submitted a representation dated 10.09.2015 requesting for a review of the impugned approval order dated 14.08.2015. Another representation dated 21.09.2015 was submitted by the Nagaland Directorate Ministerial Service Association against the impugned approval order dated 14.08.2015 highlighting their grievances that the same was made against the prevailing rules and requested the concerned authority to revoke the approval for absorption of the respondent No. 4. Considering the grievances of the association, the Director of School Education by letter dated 22.09.2015 forwarded the representation of the Association to the Government with comments to review the decision of the Government for approval of the respondent No. 4. However, on the same date, the respondents issued the impugned order dated 22.09.2015 by absorbing/promoting the respondent No. 4 to UDA Directorate. He also submits that on receipt of the representation made by the Association as well as the letter dated 22.09.2015 written by the Director, the Government directed the Director of School Education to examine the case of absorption of respondent No. 4 and to furnish necessary comments by letter dated 03.10.2015. He also submits that on receipt of the representation made by the Association as well as the letter dated 22.09.2015 written by the Director, the Government directed the Director of School Education to examine the case of absorption of respondent No. 4 and to furnish necessary comments by letter dated 03.10.2015. In response to the Government letter dated 03.10.2015, the Director of School Education by letter dated 17.10.2015 addressed to the respondent No. 2 stated that the respondent No. 4 is not eligible for absorption/promotion to the post of UDA under 15% quota and that the Department without properly examining the rules, had forwarded the case of the respondent No. 4 for absorption/promotion to the post of UDA Directorate. It was also requested in the same letter to review the case of the respondent No. 4 in order to redress the genuine grievances of the Association. However, the Government turned down the representation submitted by the Association on the ground that this is the first time that a UDA from the District has been brought to the Directorate and that the respondent No. 4 is rendering valuable service to the Department and therefore, the earlier decision of the Government in respect of the respondent No. 4 shall stand. 7. Learned senior counsel for the petitioners submits that in the meantime, the petitioner Nos. 4, 5, 6, 7 and 8 were given promotion to the post of UDA Directorate by order dated 31.03.2016 and the petitioner No. 9 was also given officiating promotion to the post of UDA Directorate by an order dated 20.05.2016. The respondents had also published a tentative seniority list of UDAs-cum-Computer Assistant under the Directorate of School Education as on 01.05.2015 by Notice dated 12-05-2015. Therein, the name of the petitioner Nos. 4, 5, 6, 7, 8 and 9 are reflected at Serial Nos. 1, 2, 3, 4, 7 and 8. However, the petitioner Nos. 4 to 9 are still aggrieved by the absorption of the respondent No. 4 inasmuch as, their seniority in the cadre of UDAs Directorate has been adversely effected. He also submits that the petitioner Nos. 1, 2 and 3 are the senior most LDAs Directorate and their names are also reflected in Serial Nos. However, the petitioner Nos. 4 to 9 are still aggrieved by the absorption of the respondent No. 4 inasmuch as, their seniority in the cadre of UDAs Directorate has been adversely effected. He also submits that the petitioner Nos. 1, 2 and 3 are the senior most LDAs Directorate and their names are also reflected in Serial Nos. 5, 6 and 7 of the tentative seniority list circulated by the Notice dated 12.05.2015 and they are also aggrieved by the illegal absorption of the respondent No. 4. 8. Learned senior counsel submits that the Government could not have conveyed its approval for absorption/promotion of the respondent No. 4 by the letter dated 14.8.2015 nor could they have absorbed/promoted the respondent No. 4 to the post of UDA Directorate by the order dated 22.09.2015 inasmuch as, after the issuance of the Office Memorandum dated 17.03.2015, only 15% of the posts arising in a calendar year can be filled up from the District/Sub-Division UDAs. The exercise taken by the State respondents to convert the post held by the respondent No. 4 in the Directorate of School Education which was ultimately turned down by the Department of Personnel and Administrative Reforms would clearly demonstrate the intention of the respondents to absorb/promote the respondent No. 4 to the Directorate cadre at all cost by applying any method. Further, as the absorption/promotion of the respondent No. 4 has been done in blatant violation of the Rules of 2006 amended by the Office Memorandum dated 17.03.2015, the approval letter of the Government dated 14.08.2015 and the order absorbing/promoting the respondent No. 4 to the post of UDA Directorate by the order dated 22.09.2015 are liable to be set aside and quashed. Learned senior counsel for the petitioners has placed reliance in the case of Hari Bansh Lal Vs. Sahodar Prasad Mahto & Ors., reported in (2010) 9 SCC 65 to demonstrate that the State Government cannot approbate or reprobate in the absence of any change of circumstances. 9. Ms. Inaholi, learned Government Advocate appearing on behalf of the State respondents submits that though the Rules of 2006 was in existence, none of the UDA District has been absorbed/promoted to UDA Directorate in the Department till date and therefore, considering the backlog quota of District/Sub-Division UDAs for promotion/absorption to Directorate UDA, the absorption/promotion of the respondent No. 4 is justified. Inaholi, learned Government Advocate appearing on behalf of the State respondents submits that though the Rules of 2006 was in existence, none of the UDA District has been absorbed/promoted to UDA Directorate in the Department till date and therefore, considering the backlog quota of District/Sub-Division UDAs for promotion/absorption to Directorate UDA, the absorption/promotion of the respondent No. 4 is justified. Therefore, the respondent No. 4 was absorbed/promoted to the post of UDA by order dated 22.08.2015 in accordance with the 15% reservation quota for District/Sub-Divisional UDAs. It is also submitted that except the petitioner No. 5, none of the petitioners were eligible for promotion against the vacancies that arose neither in the calendar year 2015 nor against the vacancy where the respondent No. 4 was promoted. As the petitioners did not have the qualifying length of service specified in the Rules of 2006 and that the promotion/absorption of the respondent No. 4 to UDA Directorate has been done in accordance with the Rules of 2006 and the Office Memorandum dated 17.03.2015, no interference is required and therefore, the writ petition should be dismissed. 10. Mr. Apok Pongener, learned counsel appearing for the respondent No. 4 submits that the respondent No. 4 was initially appointed as Lower Divisional Assistant by an order dated 08.07.1992. Thereafter, he was promoted along with two others as UDA District by an order dated 20.03.2001. Thereafter, by an order dated 03.11.2003, the respondent No. 4 was transferred and posted as Office Assistant-cum-Accountant under the Directorate of School Education (SMA) in the same grade and same time scale. As the respondent No. 4 had completed about 15 years of length of service, he made a representation dated 13.10.2009 to the concerned authority for consideration of his case for absorption/promotion as UDA Directorate on the basis of 25% reservation for District LDA as provided by the Office Memorandum dated 02.09.2009. However, the respondents had erroneously processed the case of the respondent No. 4 for attachment and therefore, the respondent No. 4 by another representation dated 22.05.2012 had approached the concerned authority stating inter-alia that the authorities in the Directorate had inadvertently proposed his name for attachment which actually should have been for absorption. However, the respondents had erroneously processed the case of the respondent No. 4 for attachment and therefore, the respondent No. 4 by another representation dated 22.05.2012 had approached the concerned authority stating inter-alia that the authorities in the Directorate had inadvertently proposed his name for attachment which actually should have been for absorption. The Director of School Education by letter dated 10.07.2015 forwarded the case of the respondent No. 4 stating that the Directorate had not taken up a single case till date and also showing the vacancy position at that relevant point of time which were six vacancies. It was thereafter that the Government by its letter dated 14-08-2015 issued the letter of approval for absorption of the respondent No. 4 as UDA Directorate and thereafter, the order dated 22.09.2015 absorbing/promoting the respondent No. 4 was issued. He, therefore, submits that the respondent No. 4 had, as early as 2009 represented for considering his case for absorption in terms of the Rules for which he was eligible at that point of time. The State respondents had also appreciated and considered the case of the respondent No. 4 in terms of the relevant Rules and therefore, had passed the order dated 22.09.2015 absorbing/promoting the respondent No. 4. He submits that none of the legal right of the petitioners have been violated inasmuch as, the absorption/promotion of the respondent No. 4 has been done in accordance with the Rules and therefore, there is no cause of action for the petitioners to challenge the order of absorption/promotion of respondent No. 4. Learned counsel for the respondent No. 4 also submits that the noting of the P & AR Department dated 07.04.2014 was made conveying its regret to convert the post of UDA District held by the respondent No. 4 to that of UDA Directorate inasmuch as, the proposal sent by the State respondents was inadvertently done which was also brought to the notice of the respondents by the respondent No. 4 by representation dated 22.05.2012. In that view of the matter, he submits that there is no merit in the present writ petition and the same should be accordingly dismissed. 11. I have considered the submissions forwarded by the learned counsel for the parties as well as perused the records submitted by the learned Government Advocate. 12. In that view of the matter, he submits that there is no merit in the present writ petition and the same should be accordingly dismissed. 11. I have considered the submissions forwarded by the learned counsel for the parties as well as perused the records submitted by the learned Government Advocate. 12. As regards the preliminary objection to the locus standi of the petitioners raised by the learned counsel for the respondent No. 4 with regard to maintainability of the writ petition, it is seen that the petitioner No. 5 at the relevant point of time was eligible for being considered to be promoted to the post of UDA Directorate. Further, the petitioner Nos. 4, 5, 6, 7 and 8 were also given promotion to the post of UDA Directorate. Statements has also been made at para 16 of the writ petition that they are aggrieved not only with the absorption/promotion of the respondent No. 4 as UDA Directorate but they are also aggrieved with regard to the seniority in the cadre of UDA Directorate in view of the absorption/promotion of the respondent No. 4. In that view of the matter, this Court is of the considered opinion that the petitioners has locus to file the present writ petition and that there is common cause of action. 13. On merits, it is noticed that one Smti Khriezomeno, UDA was promoted to the rank of Assistant Superintendent by Notification dated 20.02.2014. The same is annexed as Annexure-P1 to the affidavit-in-re-ply filed by the petitioners to the affidavit-in-opposition field by the respondent No. 4. The approval letter dated 14.08.2015 clearly indicates that the approval for absorption/promotion of the respondent No. 4 was made against the post of the said Smti Khriezomeno, UDA who was promoted to Assistant Superintendent Directorate. This would clearly indicate that the vacancy against which the respondent No. 4 was considered arose in the year 2014. The approval letter dated 14.08.2015 clearly indicates that the approval for absorption/promotion of the respondent No. 4 was made against the post of the said Smti Khriezomeno, UDA who was promoted to Assistant Superintendent Directorate. This would clearly indicate that the vacancy against which the respondent No. 4 was considered arose in the year 2014. To a pointed question made by this Court to the learned Government Advocate as to how many vacancies were available and in which year such vacancies arose in the Department with regard to the post of UDA Directorate, learned Government Advocate has produced a letter dated 22.02.2018 written by the Director of School Education which projects that out of a total of six vacancies of posts of UDAs, 4 (four) arose in the calendar year 2014 and 2 (two) arose in the calendar year 2015. As already indicated above, the case of the respondent No. 4 was considered against the vacancy that arose in the year 2014. 14. This Court has also considered the unamended Rules of 2006, the Office Memorandum dated 02.09.2009 as well as the Office Memorandum dated 17.03.2015. The Office Memorandum dated 02.09.2009 provides for 25% reservation of vacancies arising in a calendar year for promotion of eligible District/Sub-Division UDAs with immediate effect. The said Office Memorandum was in force when the vacancy arose, against which the respondent No. 4 was considered and the absorption/promotion of the respondent No. 4 was made by the impugned order dated 22.09.2015. The said Office Memorandum dated 02.09.2009 was superseded by the Office Memorandum dated 17.3.2015 by providing 15% reservation against the vacancies arising in a calendar year for promotion of eligible District/Sub-Division UDAs to Directorate UDAs. 15. In the present case, it is not disputed that the Rules of 2006 was amended by the Office Memoranda dated 02.09.2009 and 17.03.2017 insofar as the reservation quota for filling up of the post of Directorate UDA is concerned. It is a settled position of law that vacancies which occurred prior to the amendment of rules will be covered by the old rules and not by the amended rules. 16. In the case of Kulwant Singh & Ors. Vs. Daya Ram & Ors. reported in (2015) 3 SCC 177 the Hon'ble Supreme Court has held as under:- "40. It is a settled position of law that vacancies which occurred prior to the amendment of rules will be covered by the old rules and not by the amended rules. 16. In the case of Kulwant Singh & Ors. Vs. Daya Ram & Ors. reported in (2015) 3 SCC 177 the Hon'ble Supreme Court has held as under:- "40. In R. Dayal the Court was considering the effect of Rule 24-A of the Rajasthan Service of Engineers (Building and Roads Branch) Rules, 1954 (as amended). It pertained to the vacancies which were filled up prior to the amended Rule. Question arose whether the vacancies were prepared to be filled up under the amended Rule or unamended Rule. On behalf of the respondents therein reliance was placed on Y.V. Rangaiag. The Court, appreciating the factual scenario and the rule position, came to hold as follows: '8. ...But the question is whether selection would be made, in the case of appointment to the vacancies which admittedly arose after the amendment of the Rules came into force, according to the amended Rules or in terms of Rule 9 read with Rules 23 and 24-A, as mentioned hereinbefore. This Court has considered the similar question in para 9 of the judgment above-cited. This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in accordance with the law existing as on the date when the vacancies arose. 41. In B.L. Gupta the Court reiterated the principle stated in Y.V. Rangaiah, P. Ganeshwar Rao and A.A. Calton v. Director of Education wherein it had been held that the vacancies which had occurred prior to the amendment of rules were governed by the old rules and not by the amended rules. In Arjun Singh Rathore the view stated in Y.V. Rangaiag and R. Dayal were reiterated." 17. In Arjun Singh Rathore the view stated in Y.V. Rangaiag and R. Dayal were reiterated." 17. From a reading of the instructions given to the learned Government Advocate by the communication dated 22.02.2018, it is clear that the 4 (four) vacancies arose in the calendar year 2014. This is also not disputed by the parties. This Court is of the considered opinion that as the said 4 (four) vacancies arose in the calendar year 2014, they shall be covered by the Office Memorandum dated 02.09.2009 that was in force at that relevant point of time. The Office Memorandum dated 02.09.2009 provides for 25% vacancies arising in a calendar year for promotion of eligible UDAs of District/Sub-Division UDAs to Directorate UDAs. As there were 4 (four) vacancies in the calendar year 2014, applying the ratio of 75:25 as provided under the Office Memorandum dated 2.9.2009, this Court is of the considered opinion that the absorption/promotion of the respondent No. 4 by the order dated 22.9.2015 cannot be faulted inasmuch as, the same was made in accordance with the Office Memorandum dated 02.09.2009. In that view of the matter, as discussed herein above, this Court finds no merit in the writ petition and the same is accordingly dismissed. Return the records to Ms. Inaholi, learned Government Advocate.