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2019 DIGILAW 1065 (GAU)

T. Hosheli Sema v. State of Nagaland

2019-09-18

NANI TAGIA

body2019
ORDER : Nani Tagia, J. 1. Heard Ms. Z. Zhimomi, learned counsel for the petitioners in WP(C) 152 (K) 2016, WP(C)254(K)2017, WP(C)281(K) 2017 & WP(C) 49(K)2018; Mr. Taka Masa, learned senior counsel for the petitioner in WP(C) 249 (K) 2017; Mr. C.T. Jamir, learned senior counsel for the petitioner in WP(C) 251 (K) 2017; Mr. Tongpok Pongener, learned counsel for the petitioner in WP(C) 244 (K) 2017 & WP(C) 250 (K) 2017; Ms. Esther, learned counsel for the petitioner in WP(C)252(K)2017 & WP(C) 253 (K)2017; Mr. Wati Jamir, learned counsel for the petitioner in WP(C) 315 (K) 2017, WP(C) 100 (K) 2018, WP(C)263(K)2017 & WP(C) 265 (K) 2017; Mr. Limawapang, learned counsel for the petitioner in WP(C) 255(K)2017, WP(C)260(K)2017, WP(C) 261(K) 2017 & WP(C) 262 (K) 2017; Mr. N. Longkumer, learned counsel for the petitioner in WP(C) 269(K) 2017, WP(C) 270 (K) 2017 & WP(C)05(K)2018; and Mr. P. Surien, learned counsel for the petitioner in WP(C) 109 (K)2018. Also heard Mr. R. Iralu, learned senior counsel, appearing on behalf of the respondent authorities. 2. In WP(c)152(K)2016, the writ petitioner has put to challenge the impugned order, dated 06.08.2016, issued by the Sub-Divisional Education Officer-cum-District Education Officer, Zunheboto, vide EDN/DEOZ/EST-23/2016-17, whereby the writ petitioner who had been attached to the District Education Officer, Zunheboto, since September, 2008, have been redeployed and transferred to the GHSS Zunheboto as Graduate Teacher(Science). In all other writ petitions, the petitioners have put to challenge the impugned letter, dated 03.10.2017 issued by the Under Secretary to the Government of Nagaland to the Principal Director, School Education, Nagaland, Kohima, vide DSE/GEN-41/2012-13; and impugned order, dated 31.10.2017, issued by the Principal Director, Directorate of School Education, Nagaland, Kohima, vide ED/EST-1/DETACHMENT/2017, by which order, the petitioners who were working as Ministerial Staff in the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, have been redeployed as Teachers, in their respective grades to the respective schools indicated in the impugned order. 3. 3. The short question which requires determination of this Court, in this bunch of writ petitions, is whether the petitioners who had been substantively appointed in the post of Teachers in various grades, subsequently attached to the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, as Ministerial Staff, would have any indefeasible right to remain and continue to work as Ministerial Staff in the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, despite their substantive post(s) being Teachers. 4. The facts leading to the filing of the present writ petitions may be stated as follows: The petitioners in all these writ petitions, who were either appointed as Primary Teachers/Graduate Teachers/Assistant Teachers, etc., by the Department of Education, Government of Nagaland, on different dates and years, were brought to the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, as Ministerial Staff, initially, for a limited period of time, was extended periodically and thereby, the petitioners have been working as Ministerial Staff in the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices since they were brought in. 5. Assailing the impugned order of detaching the petitioners from the Directorate of School Education, District Education-Offices and Sub-Divisional Education Offices and reverting them back to their substantive posts of Teachers, as indicated in the impugned order, the learned counsels have, advanced their various arguments. 6. Leading the arguments on behalf of the petitioners, Mr. Taka Masa, learned senior counsel, as well as Mr. C.T. Jamir, learned senior counsel, have submitted that at the time when the petitioners were appointed as Teachers in various grades, under the Department of School Education, Government of Nagaland, there was no recruitment rules for the Teachers in the State of Nagaland. 7. In the absence of any such recruitment rules, the respondent authorities in exercise of its executive powers was well within the competence to bring the petitioners to the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, as Ministerial Staff, and that is how the petitioners continued to work as Ministerial Staff in the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, although they were substantively appointed as Teachers. 8. 8. Having regard to the long period of service the petitioners have rendered as Ministerial Stan in the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, the learned senior counsels, have submitted that the respondent authorities vide O.M. dated 03.05.2013, issued by the Cabinet Secretary, Government of Nagaland, vide Memo. No. CAB-2/2013; Notification dated 05.06.2013, issued by the Commissioner and Secretary to the Government of Nagaland, Kohima, vide Memo. No. DSE/CAB/POLICY/2013; and also the Notification, dated 06.06.7013, issued by the Commissioner and Secretary to the Government of Nagaland, vide DSE/CAB/POLICY/2013, the State Government had directed the Department to make a detailed study of the Teachers attached as Ministerial Staff in the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, and submit an appropriate proposal to the State Government in consultation with the P&AR Department and Finance Department in conjunction with their relative pay and status and thereafter, submit the requirement of Ministerial Staff as per the entitlement for district, Sub-Divisional, Higher Secondary School and High School level offices in conjunction with their relative pay and status. The recommendation was directed to be submitted to the Principal Director, School Education, Government of Nagaland, Kohima, latest by 31.08.2013, for decision of the State Government, subject to clearance of the Department of Personnel and Administrative Reforms and concurrence of the Finance Department. In pursuance thereof, the petitioners were also asked to give an undertaking to forego the claim of seniority and promotion in the cadre of Teachers, etc., which the petitioners did accordingly. 9. The learned senior counsels further submitted that the aforesaid exercise having been undertaken by the respondent authorities to absorb the petitioners in the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, the respondent authorities ought to have taken a final decision as regards the absorption of the petitioners in the said Directorate of School Education, District Education Offices and Sub-Divisional Education Offices. By not taking a decision, by concluding the process so started, as indicated above, and instead, by issuing the impugned order, dated 31.10.2017, whereby the petitioners have been detached and reverted back to the posts of Teachers, the respondent authorities have acted arbitrarily, which requires interference by this Court in exercise of powers under Article 226 of the Constitution of India. 10. While endorsing the above submissions made by the learned senior counsels, Mr. 10. While endorsing the above submissions made by the learned senior counsels, Mr. Tongponk Pongener, learned counsel, appearing for the petitioners in WP(C)244(K)2017 and WP(c)250(K)2017 has submitted that after the undertakings given by the petitioners, the petitioners would be deemed to be decadred from the posts of Teachers. Learned counsel has further submitted that once the petitioners having been allowed to work for such a long time, as Ministerial Staff, and also the respondent authorities having undertaken a process of absorption vide Office Orders issued on 03.05.2013, 05.06.2013, and 06-06-2013, respectively, as indicated above, and the petitioners having acted in pursuance of the aforesaid exercise undertaken by the respondent authorities, the respondent authorities are now estopped from acting contrary to the steps that have been taken for absorption of the petitioners as Ministerial Staff. 11. In support of his case, Mr. Pongener, learned counsel, has relied on the decision of the Apex Court rendered in the case of M/s. Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh & Ors., reported in AIR 1979 SC 621 . 12. Ms. Esther, learned counsel, appearing for the petitioners in WP(c)252(K)2017 and WP(c)253(K)2017, while endorsing the arguments advanced by the learned senior counsels Mr. Masa and Mr. Jamir, has, however, submitted that the petitioners in these writ petitions, although were initially appointed as Teachers, have, subsequently, suffered disability due to motor vehicle accidents and having regard to the physical disability the said writ petitioners have suffered, the respondent authorities ought have placed them in the Directorate of School Education, District Education Offices or Sub-Divisional Education Offices inasmuch as they are now not in a position to teach in the schools because of their disability that have been suffered by them due to motor vehicle accidents. 13. In support of her case, Ms. Esther, learned counsel, has relied on the decisions of the Apex Court rendered in the cases of Narendra Kumar Chandla v. State of Haryana & Ors., reported in (1994) 4 SCC 460 : ( AIR 1995 SC 519 ) and Risal Singh v. State of Haryana & Ors., reported in 2014 (5) GLT (SC) 98 : ( AIR 2014 SC 2922 ) 14. All other learned counsels have endorsed the submissions made by the learned senior counsels appearing for the petitioners. 15. Mr. All other learned counsels have endorsed the submissions made by the learned senior counsels appearing for the petitioners. 15. Mr. R. Iralu, learned senior counsel, appearing on behalf of the State respondents, on the other hand, by referring to the counter affidavits filed, has submitted that the decision to revert back the petitioners as well as other teachers who were attached in the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices as Ministerial Staff, were taken by the Government of Nagaland, as far back as on 03.02.2009 by a Notification, issued on that date, by the Additional Chief Secretary to the Government of Nagaland, vide Memo. No. EDS/SSA-DT/001-2006 and it was in pursuance of the decision taken on 03.02.2009 by the State Government that subsequent steps to revert the petitioners as well as other Teachers working as Ministerial Staff in the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, was initiated vide Notification dated 03.04.2013, issued by the Commissioner and Secretary to the Government of Nagaland, Department of School Education, Kohima, vide Memo. No. EDS/MISC/-9/2010; O.M. dated 03.05.2013, issued by the Cabinet Secretary, Government of Nagaland, under Memo, No. CAB-2/2013; Notification dated 05.06.2013, issued by the Commissioner and Secretary to the Government of Nagaland, Department of School Education, Kohima, under Memo. No. DSE/CAB/POLICY/2013; Notification dated 06.06.2013, issued by the Commissioner and Secretary to the Government of Nagaland, Department of School Education, Kohima, under Memo. No. DSE/CAB/POLICY/2013; letter dated 15.10.2013, written by the Under Secretary to the Government of Nagaland, to the Principal Director, School Education, Government of Nagaland, Kohima, under Memo. No. DSE/GEN-REP/2013; letter dated 22-08-2016, written by the Addl. Director(HOD), Directorate of School Education, Government of Nagaland, Kohima, to the Commissioner and Secretary to the Government of Nagaland, Department of School Education, Kohima, vide Memo. No. ED/GHSS/C/32/2015-16; and letter dated 22.08.2017, written by the Principal Director, School Education, Government of Nagaland, Kohima, to the Principal Secretary to the Government of Nagaland, Department of School Education, Kohima, vide Memo. Director(HOD), Directorate of School Education, Government of Nagaland, Kohima, to the Commissioner and Secretary to the Government of Nagaland, Department of School Education, Kohima, vide Memo. No. ED/GHSS/C/32/2015-16; and letter dated 22.08.2017, written by the Principal Director, School Education, Government of Nagaland, Kohima, to the Principal Secretary to the Government of Nagaland, Department of School Education, Kohima, vide Memo. No. ED/EST-1/B/16/2014; in which letters, it had been consistently approved that there shall be no attachment of Teachers to any other assignments or establishments outside the Educational Department and to redeploy the Teachers who had been attached as Ministerial Staff in the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, to their respective schools, which eventually culminated into the letter, dated 03.10.2017, issued by the under Secretary to the Government of Nagaland, Kohima, written to the Principal Director, School Education, Government of Nagaland, Kohima, vide Memo. No. DSE/GEN-41/2012-13; and the order, dated 31.10.2017, issued by the Principal Director, School Education, Government of Nagaland, Kohima, vide Memo. No. ED/EST-1/DETACHMENT/2017, by which order, as many as 523 Teachers who were attached to the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, as Ministerial Staff, have been reverted back to their respective schools indicated therein including the present writ petitioners. 16. Mr. Iralu, learned senior counsel, has further submitted that the redeployment or reversion of the petitioners along with all others to their respective substantive posts of Teachers was necessitated in view of Section 27 of the Right to Education Act, 2009, which prohibits deployment of Teachers for any non-educational purposes other than for the purpose of decennial population census, disaster relief duties or duties relating to elections to the local authority or State Legislatures or Parliament, as the case may be. As Section 27 of the Act prohibited the deployment of Teachers for any non-educational purposes other than those mentioned therein, the petitioners along with others had to be reverted back to their substantive posts of Teachers in their respective grades. And accordingly, Mr. Iraki, learned senior counsel, submits that redeployment of the petitioners as Teachers which are the substantive posts of the writ petitioners, have been correctly made by the respondent authorities and there is no illegality committed by the respondent authorities in issuing the impugned order of redeployment of reversion, dated 31.10.2017. 17. And accordingly, Mr. Iraki, learned senior counsel, submits that redeployment of the petitioners as Teachers which are the substantive posts of the writ petitioners, have been correctly made by the respondent authorities and there is no illegality committed by the respondent authorities in issuing the impugned order of redeployment of reversion, dated 31.10.2017. 17. Rival submissions advanced at the Bar have received due consideration of this Court. 18. Admittedly, the petitioners in all these writ petitions, were substantively appointed as Teachers in various grades and posted in different schools in the State of Nagaland. The petitioners, therefore, belong to a definite cadre of Teachers of their respective grades. Under the service jurisprudence, the only way for an appointment or transfer to be made outside the cadre is by way of a deputation which is also for a limited period of 3 years, extendable by another 2 years. Except the appointment/transfer on deputation, and the subsequent absorption thereof in the borrowing department, there is no other mode of shifting of the employee from one cadre to another cadre. 19. In the present case, the writ petitioners were brought to the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, as Ministerial Staff, without any legal basis. If the petitioners had been brought to the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, as Ministerial Staff, without any legal basis, the continuance of the petitioners as Ministerial Staff, howsoever, long a period may be, the continuance of the petitioners as Ministerial Staff in the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, would remain illegal and unauthorized. 20. It is also noticed, from the counter affidavit of the State, that the Ministerial Staff in all other Departments of the Government of Nagaland, including the Education Department, is filled-up in accordance with the Recruitment Rules called the "Nagaland Directorate Ministerial Service Rules, 2006" whereunder, Rule 7(i) provides for filling-up the post of Lower Division-cum-Computer Assistant, by 100% direct recruitment through a selection to be made by a selection committee. Therefore, it is noticed that under the related Recruitment Rules, the only way to get into the Ministerial Staff of the Education Department, like all other Departments of the Government of Nagaland, is by way of direct recruitment, the selection of which would be made by the Selection committee of the Department concerned. Therefore, it is noticed that under the related Recruitment Rules, the only way to get into the Ministerial Staff of the Education Department, like all other Departments of the Government of Nagaland, is by way of direct recruitment, the selection of which would be made by the Selection committee of the Department concerned. If that be the only mode of entering into as Ministerial Staff in the Education Department, the process undertaken by the respondent authorities by way of a Cabinet decision, dated 03.05.2013 and the subsequent Notifications, dated 05.06.2013 and 06-06-2013, and the subsequent undertakings given by some of the petitioners in pursuance thereof, as referred to and relied on by the learned senior counsels appearing for the petitioners, neither, would be of any consequence conferring any right to the petitioners nor, it would cast any duty on the respondent authorities to conclude the process undertaken for absorption of the writ petitioners as Ministerial Staff inasmuch as the process undertaken by the respondent authorities would be contrary to the Recruitment Rules governing the recruitment of Ministerial Staff in the Departments of the Government of Nagaland, namely the "Nagaland Directorate Ministerial Service Rules, 2006," besides being in violation of Section 27 of the Right to Education Act, 2009, which prohibits deployment of Teachers for any non-educational purposes other than the purposes that are mentioned in Section 27 of the said Act of 2009. 21. With regard to the contention advanced by Mr. Tongpok Pongener, learned counsel, by referring to the case of M/s. Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh & Ors., reported in AIR 1979 SC 621 , that the Government having taken steps to retain the petitioners as Ministerial Staff in the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices and the petitioners having acted in terms of the proposal of the Government, thereby altering the position of the petitioners, by giving undertakings to forego the seniority and promotion in the cadre post(s) of Teachers, the Government is liable to be held bound to act as per the proposal which was in the nature of a promise, needs mention only to be rejected in as much as the doctrine of promissory estoppel, cannot be invoked against the Government if the promise made/proposal initiated was contrary to law. As have been noticed hereinabove, the proposal or steps initiated by the Government to retain the petitioners as Ministerial Staff in the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, was contrary to the mandate of Section 27 of the Right to Education Act, 2009, and Nagaland Directorate Ministerial Service Rules, 2006; the petitioners, therefore, cannot be legitimately permitted to invoke the doctrine of promissory estoppel against the Government inasmuch as "estoppel" cannot operate against the mandate of law. 22. For the reasons and discussion made hereinabove, I do not find any rights of the petitioners to remain as Ministerial Staff in the Directorate of School Education, District Education Offices and Sub-Divisional Education Offices, have been violated by the respondent authorities while issuing the impugned order, dated 31.10.2017. 23. In that view of the matter, I find no infirmity in the impugned order, dated 31.10.2017. These writ petitions lacks merit and the same are hereby dismissed being devoid of merit. The interim orders passed by this Court, earlier, stands vacated. 24. However, as far as the petitioners in WP(c)252(K)2017 and WP(c)253(K)2017 are concerned, who are stated to be, in the meanwhile, suffered physical disability due to motor vehicle accidents, are given liberty to file appropriate representations to the appropriate authority as envisaged under the Rights of Persons with Disabilities Act, 2016. As and when, such representation(s) is filed by the petitioners to the appropriate authority, the same shall be dealt with by the authority concerned in accordance with law, within a period of 2(two) months. It is hereby made clear that the writ petitioners of WP(c)252(K)2017 and WP(c) 253 (K) 2017 shall make appropriate representations to the appropriate authority only after they have joined as Teachers at their respective places of posting as indicated in the order, dated 31.10.2017. 25. The writ petitions are disposed of in terms above.