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Gauhati High Court · body

2019 DIGILAW 809 (GAU)

Ruokuosazo Sachu v. State of Nagaland

2019-07-05

MANISH CHOUDHURY

body2019
ORDER : MANISH CHOUDHURY, J. 1. By this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the decision of the State respondents in fixing his seniority in the cadre of Lower Division Assistant (LDA), subsequently re-designated as Junior Secretariat Assistant (JSA), in Nagaland Secretariat Service (NSS) w.e.f. 29.06.2007, instead of w.e.f. 29.06.2006, thereby, placing his inter se seniority position below the respondent Nos. 5 to 50. 2. I have heard Mr. C.T. Jamir, learned senior counsel assisted by Ms. Nukshinaro, learned counsel for the petitioner. Also heard Ms. S. Mere, learned Government Advocate for the State respondents and Mr. Taka Masa, learned senior counsel assisted by Mr. Arenlong learned counsel for the respondent Nos. 5 to 44. 3. Before proceeding further, a brief narration of facts leading to the institution of the writ petition is necessitated. By an order dated 17.12.2003 issued under the hand of the Additional Chief Secretary (Home), Home Department, Secretariat Administration Branch, Government of Nagaland, the petitioner came to be appointed to the post of Account Assistant, a post transferred from the erstwhile Nagaland Workshop Organization Office and attached to the Nagaland Civil Secretariat, Home Department, in the scale of pay of Rs. 4,125 - 7,475/- p.m. plus other allowances from the date of his joining in the post. The said order further mentioned that the appointment was made against the post vacated by one Smti. Zaseie-u Angami on her retirement from service on superannuation on 31.10.2003 and was on temporary basis, subject to regularisation through D.P.C. in course of time. 4. A proposal was mooted on 15.09.2005 by the Personnel & Administrative Reforms (P.&A.R.) Department advising the Home Department to move for permanent absorption/encadrement of those 5 (five) posts which were in the erstwhile Nagaland Workshop Organisation, into the Nagaland Secretariat Service (NSS), subject to up-gradation of post. Such proposal was made as without permanent absorption/encadrement into the NSS, those posts were maintained as District-level staffs, which arrangement was termed undesirable. It was further advised to ensure regularisation of the incumbents in their respective posts by following the laid down procedure and to propose the manner by which the inter se seniority would be decided upon absorption/encadrement into the Secretariat. It was further advised to ensure regularisation of the incumbents in their respective posts by following the laid down procedure and to propose the manner by which the inter se seniority would be decided upon absorption/encadrement into the Secretariat. By a Memorandum dated 06.10.2006, it was agreed by both the P.&A.R. Department and the Finance Department to encadre the post of Account Assistant, held by the petitioner, into the NSS as Lower Division Assistant (LDA) in the same scale of pay and to count the seniority w.e.f. 17.12.2003 i.e. the date of the petitioner's appointment to the post of Account Assistant. The petitioner was asked to give option either to remain in the ex-cadre post or to accept the proposed encadrement. The petitioner opted for the proposed encadrement into the NSS as LDA in writing. Pursuant to exercise of option by the petitioner, a Cabinet Memorandum was prepared on 15.05.2007 for up-gradation and conversion of posts. Amongst others, the Home Department sought consideration and approval of the Cabinet on the point as to whether the post of Account Assistant, held by the petitioner, be converted to LDA and to encadre it into the NSS along with the incumbent petitioner, and as to whether his seniority be counted from the date of his appointment i.e. 17.12.2003. The Cabinet held its meeting on 29.06.2007 and approved the up-gradation and conversion of post of District LDAs and Account Assistant in the Secretariat and absorption of their services into the NSS/NSSS. The Cabinet further observed that their inter se seniority shall be determined on the ratio 3:1, as notified by the Government. The decision of the Government to sanction up-gradation and conversion of one post of Account Assistant to that of LDA in the NSS along with the incumbent in the Nagaland Civil Secretariat in the scale of pay of Rs. 4,125 - 6,475/- p.m. w.e.f. 29.06.2007 and the consequent transfer and attachment of the post, held by the petitioner, to the Nagaland Civil Secretariat was conveyed to the Accountant General, Nagaland by a communication dated 20.07.2007 by the Commissioner, Home Department, Government of Nagaland. 4,125 - 6,475/- p.m. w.e.f. 29.06.2007 and the consequent transfer and attachment of the post, held by the petitioner, to the Nagaland Civil Secretariat was conveyed to the Accountant General, Nagaland by a communication dated 20.07.2007 by the Commissioner, Home Department, Government of Nagaland. Later on, by a Corrigendum dated 06.09.2007, the Home Department had corrected the words "upgraded to" contained in the communication dated 20.07.2007 as "encadred into", meaning thereby, the post of Account Assistant was encadred as LDA (NSS) and as a result, the petitioner who was holding the post of Account Assistant till then, got encadred as LDA into the Nagaland Secretariat Service (NSS) w.e.f. 29.06.2007. 5. The Home Department, by a Memorandum dated 21.08.2008 published a final seniority list of LDAs (NSS) in the Nagaland Civil Secretariat as on 31.07.2008, which was stated to have been finalized after publication of the tentative seniority list on 20.05.2008 and examining the representations submitted by LDAs (NSS) in that regard. In the said final seniority list, the petitioner's name figured at serial No. 36 showing his date of joining as 29.06.2006 purportedly applying the ratio of 3:1, approved by the Cabinet decision dated 29.06.2007. Subsequently, the post of LDA (NSS) had been re-designated as Junior Secretariat Assistant (JSA). 6. It transpires that on 24.07.2009, 192 (one hundred and ninety two) posts of Junior Secretariat Assistant (JSA) stood upgraded to that of Secretariat Assistant (SA). Consequent upon such up-gradation, the then existing 85 JSAs were allowed to hold the post of Secretariat Assistant (SA), Class - III (Non-Gazetted) in the scale of pay of Rs. 5,000 - 8,000/- p.m. with immediate effect by a Notification dated 04.08.2009 and the petitioner was included amongst those 85 (eighty five) incumbents so upgraded. But when on 13.11.2009, a tentative seniority list of Secretariat Assistants (SAs), as on 01.11.2009, was published by a Memorandum of even date, the petitioner found his name figuring at serial No. 196 fixing and showing his date of joining in the NSS as 29.06.2007 instead of 29.06.2006. 7. Aggrieved by such fixation of his seniority, the petitioner submitted a representation on 18.12.2009 with the prayer to fix his seniority in terms of the Cabinet decision dated 29.06.2007 by applying the ratio of 3:1. 7. Aggrieved by such fixation of his seniority, the petitioner submitted a representation on 18.12.2009 with the prayer to fix his seniority in terms of the Cabinet decision dated 29.06.2007 by applying the ratio of 3:1. Responding to his such representation, the R&A.R. Department, vide Memorandum dated 12.04.2010 informed the petitioner that the Home Department's decision to accord seniority benefit to the petitioner in the ratio of 3:1 was not tenable because such provision, contained in Office Memorandum (O.M.) No. A.R-5/ASSO/98 dated 20.05.2008, was applicable only in respect of contract employees whose services were subsequently regularised in accordance with the procedure laid down in O.M. No. AR-5/ASSO/98 dated 23.08.2007. It was conveyed to the petitioner that such benefit could not be bestowed on him because the post of Account Assistant which he was holding, was merely absorbed and not regularised and therefore, the petitioner's seniority in the NSS cadre should be counted from the date of his absorption into the cadre i.e. 29.06.2007. Thereafter on 08.08.2011 and 29.08.2012, the petitioner submitted representations in respect of his seniority position fixed by the tentative seniority list dated 13.11.2009. In response, the R&A.R. Department, Government of Nagaland by its Memorandum dated 09.06.2014 informed the petitioner that the seniority benefit of 1 (one) year for every 3 (three) years of service rendered against the post of Account Assistant shall be conferred to him in terms of the Cabinet decision dated 29.06.2007 and his ranking in the inter-se seniority list shall be below Sri Michael Metmei (serial No. 38) and above Smti. L. Nzaho Humtsoe (serial No. 39), who has been impleaded in the present writ petition as party-respondent No. 5. 8. Consequent to the Memorandum dated 09.06.2014, the petitioner once again submitted a representation on 30.06.2014 to review his position of seniority in the tentative seniority list of Secretariat Assistants (SAs). The said representation was not responded to by the State respondents and on 08.02.2016, another tentative seniority list of Secretariat Assistants (SAs), as on 05.02.2016, was published by the R&A.R. Department. The said list was stated to have been prepared after examining all relevant documents by a Special Committee constituted by the Government vide Notification dated 15.07.2015 under the Chairmanship of the Chief Secretary to the Government of Nagaland to examine, inter aha, issues of seniority disputes amongst the Secretariat Assistants (SAs). The said list was stated to have been prepared after examining all relevant documents by a Special Committee constituted by the Government vide Notification dated 15.07.2015 under the Chairmanship of the Chief Secretary to the Government of Nagaland to examine, inter aha, issues of seniority disputes amongst the Secretariat Assistants (SAs). The Memorandum also asked for objection to be submitted through a representation supported by documentary proof within a period of 30 (thirty) days. Accordingly, the petitioner submitted a representation ventilating his grievances in respect of fixation of his inter se position of seniority. 9. By a Memorandum dated 25.04.2016, the P.&A.R. Department informed the petitioner that the mode of recruitment to Secretariat LDA under the Nagaland Secretariat Subordinate Service Rules, 1972 with amendments made up to 1993, was by way of 100% direct recruitment through the Nagaland Public Service Commission (NPSC). It was mentioned that the post of Account Assistant where the petitioner was initially appointed, was encadred into the NSS LDA in violation of the extant Service Rules and the ratio of 3:1, as per O.M.s dated 16.11.2006 and 20.05.2008, was applicable only in respect of regularised contractual employees and not in respect of encadrement of the post of Account Assistant. After re-examination, the P.&A.R. Department reiterated its earlier decision taken on the matter vide Memorandum dated 12.04.2010 in respect of the petitioner's representation dated 18.12.2009. When the petitioner further represented about the matter before the Chief Secretary on 13.05.2016, the P.&A.R. Department apprised the petitioner by its Memorandum dated 09.12.2016 that after re-examination of the matter in consultation with the Justice & Law Department, it was decided to count the seniority of staff from other services/cadre absorbed into the NSS from the date of absorption and, thus, the seniority of the petitioner shall be counted w.e.f. 29.06.2007, in consonance with the judgment passed in W.P.(C) No. 24(K)/2008. A Notification dated 12.12.2016 came to be published by the P.&A.R. Department, whereby, 61 (sixty one) nos. of Secretariat Assistants (SAs) including the petitioner at serial No. 56 were given officiating promotion to the post of Junior Section Officer (JSO) in Pay Band (PB)-2 (Rs. 9,300 - 34,800/-) with Grade Pay (GP) of Rs. 4,600/- p.m., subject to regularization by the DPC in due course of time. of Secretariat Assistants (SAs) including the petitioner at serial No. 56 were given officiating promotion to the post of Junior Section Officer (JSO) in Pay Band (PB)-2 (Rs. 9,300 - 34,800/-) with Grade Pay (GP) of Rs. 4,600/- p.m., subject to regularization by the DPC in due course of time. The petitioner once again submitted a representation on 10.03.2017 seeking review of his inter se position of seniority which was denied by the P.&A.R. Department by its Memorandum dated 21.02.2018 reiterating its earlier decision conveyed by the Memorandum dated 09.12.2016. 10. Mr. Jamir, learned senior counsel by referring to the facts stated above, has submitted that the matter of the petitioner's absorption/encadrement was initiated at the instance of the P.& A.R. Department and the Home Department was advised accordingly. It is clear from the Memorandum dated 06.10.2006 that the matter of encadrement of the post of Account Assistant was agreed to by both the P.& A.R. Department and the Finance Department with consequential seniority of the petitioner w.e.f. 17.12.2003. Accordingly, the matter was placed before the Cabinet which approved the encadrement of the post of Account Assistant along with the incumbent i.e. the petitioner in the Nagaland Civil Secretariat. While not accepting the counting of seniority of the petitioner w.e.f. 17.12.2003, the Cabinet approved the counting of seniority in the ratio 3:1, meaning thereby, for every 3 (three) years of service, 1 (one) year would be counted towards seniority. As the Cabinet decision was taken on 29.06.2007, the period of petitioner's service from 17.12.2003 i.e. the date of his appointment was taken into consideration and accordingly in the final seniority list in respect of LDAs in the Nagaland Civil Secretariat, published vide the Memorandum dated 21.08.2008, the date of his joining was shown as 29.06.2006 at serial No. 36, purportedly applying the ratio of 3:1, as decided by the Cabinet. As the dates of joining of the party-respondent Nos. 5 to 50 in the cadre of LDA were subsequent to 29.06.2006, their positions were rightly fixed below the petitioner in the Final Seniority List. It is submitted by him that once his seniority had been decided pursuant to a Cabinet decision, the same could not have been superseded in any manner save and except by another subsequent Cabinet decision. 5 to 50 in the cadre of LDA were subsequent to 29.06.2006, their positions were rightly fixed below the petitioner in the Final Seniority List. It is submitted by him that once his seniority had been decided pursuant to a Cabinet decision, the same could not have been superseded in any manner save and except by another subsequent Cabinet decision. The list published by the Memorandum dated 21.08.2008 was a Final Seniority List of LDAs in the Nagaland Civil Secretariat and the same could not have been interfered with by any other authority other than the Court and the same should have been treated to have attained finality. In such view of the matter, the inter-change of positions made by the respondent authorities in respect of inter se seniority positions between the petitioner and the party-respondent Nos. 5 to 50 by the Notification dated 04.08.2009 was illegal and unjustified by showing the date of his joining as 29.06.2007, instead of 29.06.2006. For the decision of the P.&A.R. Department contained in the Memorandum dated 06-10-2006, the petitioner was entitled to be given seniority benefit for the service rendered from 17.12.2003 and the Cabinet having taken cognizance of the said fact, had, however, taken the decision to confer benefit of seniority in the ratio of 3:1. Thus, the date of seniority of the petitioner is to be counted from 29.06.2006 on the basis of the Cabinet decision and the stand so taken by the respondents in that respect holds no water and the same being distinguishable and the Cabinet decision dated 29.06.2007 being independent, the basis of the Government decision taking shelter under the judgment and order dated 28.05.2009 of this Court passed in W.P.(C) No. 24 (K)/2008 was misconceived. Once the Cabinet decision is taken, no contrary decision can be taken by any other authority subsequently and if such practice is allowed, a Cabinet decision can be reviewed time and again having no end to it. In the Cabinet meeting held on 29.06.2007, decisions were also taken in respect of two other employees of erstwhile Nagaland Workshop Organisation for their encadrement but it was only the petitioner who had been treated arbitrarily and discriminatorily. The representations by the Nagaland Secretariat Services Association on behalf of the party-respondent Nos. In the Cabinet meeting held on 29.06.2007, decisions were also taken in respect of two other employees of erstwhile Nagaland Workshop Organisation for their encadrement but it was only the petitioner who had been treated arbitrarily and discriminatorily. The representations by the Nagaland Secretariat Services Association on behalf of the party-respondent Nos. 5 to 50 was misconceived and the decision of according seniority to the petitioner by the Cabinet on 3:1 ratio could not have been changed on the basis of such representation. He has further submitted that if Rules are silent in any aspect, executive instruction can be issued to fill up such gap. In absence of any change in circumstances, the Cabinet decision is bound to stand the same being an independent decision. To buttress his submissions, the learned senior counsel for the petitioner has placed reliance on the following decisions: (i) (2010) 9 SCC 655 : ( AIR 2010 SC 3515 ): Hari Bansh Lal v. Sahodar Prasad Mahto and others; (ii) AIR 1978 SC 851 , Mohinder Singh Gill and others v. The Chief Election Commissioner, New Delhi and others; (iii) (2008) 4 SCC 171 : ( AIR 2008 SC 1913 ) Dhananjay Malik and others v. State of Uttaranchal and others; (iv) (2013) 16 SCC 147: Union of India and another v. Ashok Kumar Aggarwal; (v) (2006) 1 SCC 368 : (2005 AIR SCW 6113): Union of India and another v. Major Bahadur Singh; and (vi) (2018) 5 SCC 798 : ( AIR 2018 SC 1478 ): Union of India and others v. Chaman Rana. 11. The State respondent Nos. 1 to 4 has filed its affidavit-in-opposition opposing the contentions of the petitioner. Referring to the averments made in the said affidavit, Ms. Mere has submitted that the appointment of the petitioner was made against the post vacated by one Smti. Zaseie-u Angami, which post was under the erstwhile Nagaland Workshop Organization and the said post was brought to the Nagaland Civil Secretariat when the Nagaland Workshop Organization was wound up. The petitioner was appointed against the said post without following the prescribed norms as there was no open advertisement. The move initiated by the Home Department was contrary to the Service Rules. The Notification regarding 3:1 seniority benefit was in respect of regularised contract employees appointed against sanctioned posts but the same was already quashed by the High Court. The petitioner was appointed against the said post without following the prescribed norms as there was no open advertisement. The move initiated by the Home Department was contrary to the Service Rules. The Notification regarding 3:1 seniority benefit was in respect of regularised contract employees appointed against sanctioned posts but the same was already quashed by the High Court. The Cabinet decision for absorption of the petitioner with seniority benefit in ratio of 3:1 was against the concerned Service Rules of the Nagaland Secretariat Service (NSS) and the motive behind such decision was questionable. The petitioner was initially appointed temporarily to an ex-cadre post of Accounts Assistant under the Home Department in the Nagaland Secretariat Service (NSS) by the decision of the Cabinet on 29.06.2007. The decision of the Cabinet in favour of the petitioner was in operation until the time the members of the Nagaland Secretariat Services Association represented against it on 11.09.2008. The seniority list of the LDAs issued by the Home Department vide Memorandum dated 21.08.2008, where the date of joining of the petitioner had been entered as 29.06.2006, was changed to 29.06.2007 vide Memorandum dated 13.11.2009 pursuant to a decision taken by the Department in consultation with the OM Cell and the Law Department. It was further mentioned that there was no provision in the Service Rules of the NSS to accommodate ex-cadre members. However, the petitioner's seniority upon his absorption into the NSS cadre had been reckoned w.e.f. the date of Cabinet approval which was an extraordinary encadrement overriding the existing Service Rules of NSS. It was reiterated that the Notification dated 16.11.2006 had granted the service benefits of 3:1 i.e. 1 (one) year of service benefit for every 3 (three) years of continuous service for counting of seniority in respect of regularised contractual employees, which stood set aside by a common judgment and order dated 28.05.2009 in a batch of writ petitions including W.R(C) No. 24(K)/2008. There was no provision that allowed encadrement/absorption of employees of other service to the NSS cadre under the Nagaland Secretariat Service Rules. However, the petitioner had been encadred into the NSS in violation of the Service Rules and was given the opportunity to be a part with the members of the NSS cadre. Thus, the petitioner's claim for fixation of his seniority w.e.f. 29.06.2006 above 46(forty six) other employees was termed as unjustified. 12. However, the petitioner had been encadred into the NSS in violation of the Service Rules and was given the opportunity to be a part with the members of the NSS cadre. Thus, the petitioner's claim for fixation of his seniority w.e.f. 29.06.2006 above 46(forty six) other employees was termed as unjustified. 12. The employees whose seniority positions were from serial Nos. 150 to 195 in the tentative seniority list of Secretariat Assistants, as on 01.11.2009, published by the Memorandum dated 13.11.2009, are impleaded as party-respondent Nos. 5 to 50 as they were placed above the petitioner, whose name figured at SI. No. 196 in the said list. On receipt of notice, published by way of paper publication, the party-respondent Nos. 5 to 44 had filed their affidavit-in-opposition opposing the prayer made by the petitioner. Appearing for the party-respondent Nos. 5 to 44, Mr. Taka Masa, learned senior counsel has contended that initial appointment of the petitioner by order dated 17.12.2003 was a back-door appointment dehors the rules and he had no right to claim seniority over the party-respondent Nos. 5 to 44. The same was in contravention of the Nagaland Secretariat Subordinate Service Rules, 1972, as amended, which provided only for 100% direct recruitment to the post of LDA (later on, JSA) through the Nagaland Public Service Commission (NPSC). The proposal of the authorities for upgradation/absorption of the Account Assistant as LDA, NSS was in violation of statutory rules and thus, illegal. He has submitted that the petitioner has only challenged the Memorandum dated 09.12.2016 (Annexure-25) and the Memorandum dated 21.02.2018 (Annexure-28) while seeking a direction for fixation of his seniority from 29.06.2006 in terms of the Cabinet decision dated 29.06.2007 after dismissal of the petitioner's representation dated 01.11.2009 against the tentative seniority list of Secretariat Assistant circulated vide Memorandum dated 13.11.2009 (Annexure-12) by Memorandum dated 12.04.2010. The said position was reiterated in the Memorandum dated 25.04.2016 (Annexure-23) whereby and wherein the position as regards the prevalent Service Rules was clarified and the Memorandum dated 12.04.2010 was referred to. The same having not been challenged in writ petition, the writ petition is not maintainable. He has further submitted that the Cabinet sought to grant seniority to the petitioner in the ratio 3:1, as "notified" by the Government. The same having not been challenged in writ petition, the writ petition is not maintainable. He has further submitted that the Cabinet sought to grant seniority to the petitioner in the ratio 3:1, as "notified" by the Government. Since there was no other Notification except the Notification in respect of contract employees and the same having being set aside, there was no basis to grant such seniority to the petitioner in the ratio of 3:1. It is submitted on behalf of the said respondents that the post of Account Assistant was only encadred as LDA in the NSS and the petitioner being not regularised in the post of Account Assistant, such encadrement of post did not imply regularisation of service of the petitioner in the post of LDA. The Final Seniority List in respect of LDAs was corrected by a Committee headed by Chief Secretary and thus, the fixation of seniority of the petitioner cannot be said to be arbitrary and illegal as the same was done only by the Special Committee after examination of all relevant documents as regards the appointments of the LDAs. The learned senior counsel appearing for the party-respondent Nos. 5 to 44 has also placed reliance on the following decisions:- (i) (2010) 1 SCC 417 : ( AIR 2010 SC 3676 ) Amarjeet Singh and others v. Devi Ratan and others; (ii) (2013) 2 SCC 516 : ( AIR 2013 SC 234 ) Bhupendra Nath Hazarika and another v. State of Assam and others; (iii) (2007) 9 SCC 337 : (2007 AIR SCW 6301) Punjab State Warehousing Corpn., Chandigarh v. Manmohan Singh and another; (iv) (2007) 1 SCC 683 : (2006 AIRSCW 6371): State of Uttaranchal and another v. Dinesh Kumar Sharma. 13. I have duly considered the submissions made by the parties and also perused the materials on record. 14. It transpires that in the year 1983, the Nagaland Workshop Organisation was abolished. At the time of such abolition, it was decided to bring some of the posts of the Nagaland Workshop Organisation, so abolished, by way of transfer and attachment to the Home Department in Nagaland Civil Secretariat. Accordingly, 5 (five) posts of different categories of Nagaland Workshop Organisation were brought to the Nagaland Civil Secretariat. With the transfer of those posts, the incumbents of those posts were also transferred and attached to the Nagaland Civil Secretariat. Accordingly, 5 (five) posts of different categories of Nagaland Workshop Organisation were brought to the Nagaland Civil Secretariat. With the transfer of those posts, the incumbents of those posts were also transferred and attached to the Nagaland Civil Secretariat. At the time of abolition, those posts were maintained as district-level staff and the incumbents of those posts were drawing their pay and allowances level in the district-level scale of pay. Subsequent to the transfer and attachment of the posts to the Nagaland Civil Secretariat along with the incumbents occupying those posts, they continued drawing their pay in the district-level scale. The services of those employees occupying the posts of erstwhile Nagaland Workshop Organisation were not governed and regulated by any rules or guidelines. Out of the 5 (five) posts so transferred from the erstwhile Nagaland Workshop Organisation, one was the post of Account Assistant. One Smti. Zaseie-u Angami was occupying the said post of Account Assistant. It transpires that Smti. Zaseie-u Angami, Account Assistant retired from service on superannuation on 31.10.2003. It was in that resultant vacancy that arose in the post of Account Assistant, the petitioner came to be appointed by an order dated 17.12.2003. It has been asserted by the State respondents that the petitioner was not appointed pursuant to any open advertisement. 15. Till the year 2005, the posts so transferred from the Nagaland Workshop Organisation and attached to the Home Department, Nagaland Civil Secretariat continued in the same manner with the incumbents of the posts drawing district-level pay scale. It was in such situation, as. could be seen from the Cabinet Memorandum dated 15.05.2007, it was felt that there should be some kind of service security and career progression for the incumbents occupying those posts. It was suggested by the P.&. A.R. Department to the Home Department to move for permanent absorption/encadrement of those posts into the Nagaland Secretariat Service, subject to upgradation of those posts. The Home Department was also asked to ensure regularisation of the incumbents in the respective posts by following laid down procedure. As the scale of pay of the Account Assistant, Rs. 4,125 - 6,475/- in the erstwhile Nagaland Workshop Organisation at the district-level pay scale was the same as that of a Secretariat LDA in the Nagaland Secretariat Service (NSS), the Finance Department agreed for the conversion. As the scale of pay of the Account Assistant, Rs. 4,125 - 6,475/- in the erstwhile Nagaland Workshop Organisation at the district-level pay scale was the same as that of a Secretariat LDA in the Nagaland Secretariat Service (NSS), the Finance Department agreed for the conversion. Accordingly, the offer was made to the petitioner to exercise his option either to remain in the ex-cadre post of Account Assistant or to accept encadrement into the NSS. Upon exercise of option in favour of his encadrement into the NSS as LDA, a Cabinet Memorandum was prepared on 15.05.2007, placing, inter alia, the issues as to whether the post of Account Assistant be converted to LDA and be encadred in the NSS along with the incumbent petitioner by counting his seniority from the date of his appointment i.e. 17.12.2003, for decision of the Cabinet. In the meeting of the Cabinet held on 29.06.2007, followed by a corrigendum dated 06.09.2007, the Cabinet approved encadrement of the post of Account Assistant as LDA into the NSS along with the incumbent of the post i.e. the petitioner. The Cabinet had further approved the upgradation and conversion of 2 (two) other posts of District LDAs in the erstwhile Nagaland Workshop Organisation as LDA (NSS) and Stenographer Grade-(III) (NSSS). The Cabinet also observed that their inter se seniority shall be determined in the ratio 3:1, notified by the Government, meaning thereby, the 3 (three) incumbents including the petitioner, were to be given service benefit of 1 (one) year for every 3 (three) years of continuous service in the earlier posts for counting seniority in the NSS where they had been encadred and the basis of the Cabinet's decision to confer such seniority benefit to the incumbents of ex-cadre post on encadrement was made traceable to something which were -already notified by the Government. Thus, the decision of the Cabinet to confer benefit of seniority was not unqualified. 16. It was by taking into consideration the approval of the Cabinet as regards counting of seniority in the ratio 3:1, the date of joining of the petitioner was shown as 29.06.2006, in the Final Seniority List in respect of LDAs in the NSS, as on 31.07.2008, circulated by the Memorandum dated 21.08.2008. 16. It was by taking into consideration the approval of the Cabinet as regards counting of seniority in the ratio 3:1, the date of joining of the petitioner was shown as 29.06.2006, in the Final Seniority List in respect of LDAs in the NSS, as on 31.07.2008, circulated by the Memorandum dated 21.08.2008. It was this fixation of inter se seniority of the petitioner w.e.f. 29.06.2006 in the NSS which had aggrieved the directly appointed LDAs in the NSS including the party-respondent Nos. 5 to 50. Though the party-respondent Nos. 5 to 50 were appointed as LDAs prior to 29.06.2007, none of them were appointed before 29-06-2006. Accordingly, they through their Association, Nagaland Secretariat Services Association represented before the Chief Secretary to the Government of Nagaland on 10.09.2008 against such fixation of seniority of one Smti. Kevisedeno Angami and the petitioner at, serial Nos. 35 and 36 in the Final Seniority List of LDAs. 17. In order to regulate recruitment and conditions of service of persons appointed to the non-gazetted ministerial staff of the Nagaland Secretariat, the Government of Nagaland has framed a set of rules, "the Nagaland Secretariat Subordinate Service Rules, 1972" (hereinafter referred to as the Rules, 1972 and/or the 1972 Rules, in short), framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. The said 1972 Rules have been amended from time to time. As per Rule 2, the status of the staff is that of non-gazetted (Class-III) ministerial service and as per Rule 3 (ii), "Nagaland Secretariat" includes all departments of the Nagaland Secretariat including Chief Minister's Secretariat. Rule 3 (i) defines "Appointing Authority" as the Secretary/Joint Secretary incharge of the Home Department, Government of Nagaland and "Service", as per Rule 3 (xiv), means the Nagaland Secretariat Class-III (non-gazetted) Ministerial Service. The post of LDA, later on re-designated as JSA, is included in the Junior Service category. Rule 6(2)(a) provides the sources of recruitment to the post of LDA. Originally, there were 3 (three) sources of recruitment to the post of LDA viz. (i) 50% by direct recruitment; (ii) 30% by promotion on merit-cum-seniority basis from amongst the typists of the Secretariat; and (iii) 20% from LDAs in services other than the Secretariat. Rule 6(2)(a) provides the sources of recruitment to the post of LDA. Originally, there were 3 (three) sources of recruitment to the post of LDA viz. (i) 50% by direct recruitment; (ii) 30% by promotion on merit-cum-seniority basis from amongst the typists of the Secretariat; and (iii) 20% from LDAs in services other than the Secretariat. By the Nagaland Secretariat Subordinate Service 2nd (Amendment) Rules, 1984, Rule 6(2)(a) was amended by doing away with the provision of recruitment to the post of LDA by way of promotion from amongst the typists of the Secretariat. Consequently, the ratio by way of direct recruitment and from LDAs other than Secretariat Service was made 80:20. Rule 6(2)(a) was further amended by the Nagaland Secretariat Subordinate Service Rules, 1992 and upon such amendment, the source of recruitment to the post of LDA in NSS/NSSS from LDAs from services other than Secretariat Services was done away with by deleting the same. As a result, as per the 1972 Rules, as amended, the only mode of recruitment to the post of LDA in the NSS is by way of direct recruitment. The position obtaining on 29.06.2007 i.e. when the Cabinet decision was taken for encadrement of the posts of erstwhile Nagaland Workshop Organisation including that of the Account Assistant, was that there was no provision in the 1972 Rules, as amended, for recruitment to the post of LDA by any other mode save and except by way of direct recruitment. 18. Under Article 309 of the Constitution of India, the legislature is empowered to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. The proviso to Article 309, inter alia, empowers the Governor, in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment and conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate legislature. It is settled that rules made under the proviso to Article 309 to the Constitution of India are legislative in character and, thus, such rules are constitutional rules, not like rules under a statute. They have the same force as a statute, though made by the executive. It is settled that rules made under the proviso to Article 309 to the Constitution of India are legislative in character and, thus, such rules are constitutional rules, not like rules under a statute. They have the same force as a statute, though made by the executive. It is not a piece of delegated legislation like a rule made under a statute. (CMD/Chairman, Bharat Sanchar Nigam Limited and others v. Mishri Lal and others (2011) 14 SCC 739 ). 19. There is no material on record wherefrom it is discernible that the petitioner was appointed to the post of Account Assistant on 17.12.2003 in the erstwhile Nagaland Workshop Organisation, since abolished, in the vacancy which arose due to the retirement on superannuation of the earlier incumbent, Smti. Zaseie-U Angami, pursuant to a process of selection after an open advertisement in consonance with Article 16 of the Constitution of India. The post of Account Assistant was an ex-cadre post to the NSS prior to 29.06.2007 and after encadrement of the said post as a post of LDA in the NSS w.e.f. 29.06.2007, the post had become a part of the NSS cadre. The decision to encadre the posts of the erstwhile Nagaland Workshop Organisation were to provide service security and scope for career progression so as to motivate the incumbents of the posts to better their performances. 20. Insofar as the issue regarding encadrement of the ex-cadre post of Account Assistant in the erstwhile Nagaland Workshop Organisation by the Cabinet decision dated 29.06.2007 as a post of LDA in the NSS is concerned, a decision to merge an ex-cadre post to the cadre of NSS is essentially a matter of policy. By the Cabinet decision dated 29.06.2007, the petitioner was not recruited to the NSS. What was done by the Cabinet was that an addition of 1 (one) post was made to the cadre of NSS by converting the post of Account Assistant into LDA and the incumbent of the post was also brought into cadre along with the post. By such encadrement, the total number of posts in the cadre of LDA in the NSS was increased by 1 (one) post which did not affect the existing LDAs in any manner. By such encadrement, the total number of posts in the cadre of LDA in the NSS was increased by 1 (one) post which did not affect the existing LDAs in any manner. The conditions of service of the existing members of the NSS were not altered or affected to their prejudice in any manner with such encadrement in so far as the matter of their inter se seniority was concerned. It is noticed that at the time of the Cabinet decision, the ex-cadre post of Account Assistant carried the same pay scale as that of an LDA in the NSS. The Cabinet decision being a policy decision did not supplant the 1972 Rules by not going contrary to any of the provisions of the Rules. It is not impermissible for the State Government to merge a post which it considered to be equivalent in rank by an executive fiat. Nobody had mounted any challenge to the Cabinet decision to merge the ex-cadre post of Account Assistant as an LDA in the NSS. 21. The bone of contention between the petitioner vis-à-vis the party-respondent Nos. 5 to 50 was that part of the decision of the Cabinet by which it approved for determination of inter se seniority of the incumbents of the posts of the erstwhile Nagaland Workshop Organisation on their encadrement into the NSS/NSSS in the ratio 3:1, as notified by the Government. It is the categorical assertion of the State respondents as well as the party-respondent Nos. 5 to 44 that there was no notification which provided for 1 (one) year service benefit for every 3 (three) years of continuous service for counting of seniority applicable in the matter of encadrement. Referring to the Notification No. AR-5/ASSO/98 dated 16-11-2006(Annexure-15 to the writ petition), it is submitted that the Government, by the said Notification, granted service benefit in the ratio of 3:1 i.e. 1 (one) year service benefit for every 3 (three) years of continuous service for counting of seniority, to the regularised contract employees who were regularized in pursuance of Notification No. AR-5/ASSO/98 dated 18.02.2004. Having perused the contents of the aforesaid two Notifications dated 18.02.2004 and 16.11.2006, I am of the opinion that the matter of extending service benefit in the ratio of 3:1 provided for regularised contract employees cannot be extended in the instant case to provide the service seniority benefit to the petitioner on his encadrement into the NSS/NSSS. Apart from the said Notification dated 16.11.2006, no other notification is shown by the petitioner wherein it was notified by the Government to extend the service benefit in the ratio of 3:1 in respect of newly encadred employee. The contention of the petitioner that the decision of the Cabinet to grant service benefit to him in the ratio of 3:1 was an independent decision and the same was not qualified in any manner being subservient to any notification, is not acceptable. 22. It may be mentioned that in Meivilhou Angami and others v. State of Nagaland and others, reported in 2009 (3) GLT 692 : (2009 Lab IC 3092 (Gau)) the notification No. AR-5/ASSO/98 dated 16.11.2006 giving service benefit of 1 (one) year for every 3 (three) years of continuous service for counting seniority to the regularised contract employees who were regularized pursuant to Notification dated 18.02.2004, was put to challenge. The impugned Notification dated 16.11.2006 was set aside and quashed as illegal and unsustainable in law. In such view of the matter, if the Cabinet had placed any reliance on the Notification dated 16.11.2006 in granting service seniority then the same is not acceptable as the very basis of the Notification dated 16.11.2006 was found to be illegal and unsustainable in law. 23. Rule 26 of the 1972 Rules prior to its amendment by the Nagaland Secretariat Service Rules, 1992, provided, inter aha, for inter se seniority of LDAs recruited from 3 (three) sources in a recruitment year and as per the said Rule, the appointees to the post of LDA from other offices were to be placed below the direct appointees. If the same is assumed to be in existence in the 1972 Rules, then, in that case, the, petitioner was to be placed below the party-respondent Nos. 5 to 50. 24. If the same is assumed to be in existence in the 1972 Rules, then, in that case, the, petitioner was to be placed below the party-respondent Nos. 5 to 50. 24. What is discernible from Dhananjay Malik ( AIR 2008 SC 1913 ) supra relying on the decision of the Constitution Bench in Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910 , is that the Government cannot amend or supersede the rules framed under Article 309 of the Constitution of India or under the proviso to Article 309 of the Constitution of India by way of administrative instructions. Only if such rules are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules in force. The decision in Ashok Kumar Agarwal (supra) reiterates the same position of law. Though the above decisions have come in aid of the petitioner in the matter of merger of the ex-cadre post as LDA in the NSS, the same are of no help to him in the matter of conferring him any seniority in the cadre of LDA in the NSS from a date prior to his encadrement as the 1972 Rules, as amended, do not provide for conferment of service seniority to such a person who has been encadred from an ex-cadre post. As mentioned above, the 1972 Rules, subsequent to amendment by the Nagaland Secretariat Subordinate Service Rules, 1992, do not provide for appointment of persons to the post of LDA from other offices and as such, the question of granting seniority benefit on the basis of past services in other offices does not arise. The question of filling up anything in that regard by way of administrative instruction does not arise. 25. In Amarjeet Singh and others, AIR 2010 SC 3676 (supra), it is laid down that an employee cannot be granted seniority prior to his birth in the cadre adversely affecting the seniority of other employees who had been appointed prior to him. The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. In Dinesh Kumar Sharma (2006 AIR SCW 6371) (supra) it has been observer that seniority must be reckoned from the date of substantive appointment under the relevant rules and an employee would be considered as a member of a cadre from the date of his/her substantive appointment in the cadre after selection. Seniority has to be decided on the basis of rules in force on the date of appointment and no retrospective seniority can be granted from a date when an employee has not even been born in the cadre. In Pawan Pratap Singh and others v. Reevan Singh and others, reported in (2011) 3 SCC 267 : (2011 AIR SCW 1365) the Apex Court after going through a number of decisions in the field, has culled out certain principles with regard to determination of seniority in service. It has been observed that inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure there from in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. Ordinarily, notional seniority may not be granted from the back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. 26. The ratio laid down in Punjab State Warehousing Corporation, Chandigarh v. Manmohan Singh and another (2007 AIR SCW 6301) supra) is that when the terms and conditions of the services of an employee are governed by the rules made under a statute or the proviso appended to Article 309 of the Constitution of India laying down the mode and manner in which the recruitment would be given effect to, even no order under Article 162 of the Constitution of India can be made by way of alterations or amendments of the said rules. A fortiori if the recruitment rules could not be amended even by issuing a notification under Article 162 of the Constitution of India the same cannot be done by way of a circular letter. 27. The petitioner was born in the cadre of LDA (JSA) in the NSS only on and from 29.06.2007 when the Cabinet decided to bring the post of Account Assistant he was occupying by converting it to a post of LDA. While this Court cannot delve into the matter of equation of the post of Account Assistant with that; of LDA the same being not subject-matter of challenge, it is also not the case of the petitioner in the matter of his claim for seniority that there was wholesome identity between the 2 (two) posts including the duties and responsibilities associated with the posts, prior to the encadrement. The Cabinet took its decision for encadrement of the petitioner in the cadre of LDA only in its meeting held on 29.06.2007 in a post which was added in the cadre of LDA in the NSS only w.e.f. 29.06.2007. The service of the petitioner was not regularised till then and he was born in the cadre only w.e.f. 29.06.2007. Thus, his seniority could not have been counted from a date anterior to a date when neither the post was in the cadre nor his encadrement was done. From the minutes of the meeting of the Cabinet held on 29.06.2007, as forwarded by the O.M. dated 02.07.2007 (Annexure-7), it is clear that the provisions of 1972 Rules were either not brought to the knowledge of the Cabinet or not considered by the Cabinet. 28. On the other hand, the party-respondent Nos. 5 to 44 were appointed by different orders passed on 17.05.2007, 28.05.2007, 30.05.2007, 04.06.2007, 11.06.2007 and 14.06.2007 pursuant to a process of selection undertaken by the NPSC. These party-respondents being direct appointees, were born in the cadre of LDA (JSA) on the dates of their respective joining which were prior to 29.06.2007. As could be seen from the decisions cited above, the normal rule is that a person is entitled to seniority in a cadre only from the date when the said person actually joins the post. These party-respondents being direct appointees, were born in the cadre of LDA (JSA) on the dates of their respective joining which were prior to 29.06.2007. As could be seen from the decisions cited above, the normal rule is that a person is entitled to seniority in a cadre only from the date when the said person actually joins the post. An exception can only be made to grant seniority from a date anterior to his being regularly appointed only if he had worked against such post even if it be on temporary of officiating or ad hoc, etc. and provided the rules regulating the service permits so and even if the rules enable the State to grant seniority with retrospective effect, the same cannot be granted at the cost of some others. Such an action is anti thesis to Article 14 and Article 16 of the Constitution of India. The petitioner having been born in the cadre of LDA in the NSS only from 29.06.2007, is, thus, not entitled to seniority w.e.f. 29.06.2006 to steal a march over the other LDAs including party-respondent Nos. 5 to 50, who were directly recruited to the cadre of LDA at a date prior to 29.06.2007. A Cabinet decision taken either in violation or in ignorance of the extant Service Rules is non-est in law. As such, the decision of the Cabinet, even when the same is deemed to be independent, to grant seniority benefit to the petitioner in the ratio 3:1 is in violation of the rules and not supplemental to the rules. If the same is allowed to stand, the same would amount to supplanting the rules. 29. The decision in Chaman Rana ( AIR 2018 SC 1478 ) (supra) is also of no assistance to the petitioner as the facts involved therein are distinguishable to the facts of the case in hand. Prayers for retrospective consideration for promotion of the respondents were made after repeated filing of representations. The direction for retrospective consideration for promotion made by the High Court was found to be unsustainable as the respondents had approached the Court belatedly after over 17 to 20 years after they were superseded. In Hari Bansh Lal ( AIR 2010 SC 3515 ) (supra), it has been held that it is not permissible for Government to take different stands unless there is change of circumstances. In Hari Bansh Lal ( AIR 2010 SC 3515 ) (supra), it has been held that it is not permissible for Government to take different stands unless there is change of circumstances. The said decision cannot be said to be applicable in the instant case in that any stand taken contrary to the rules cannot be held to be acceptable when primacy of the rules is not in question. The decision in Major Bahadur Singh (2005 AIR SCW 6113) (supra) is on the binding precedent wherein it is said that the Courts should not place reliance without discussing as to how the factual situation fits in with the factual situation of the decision on which reliance is placed. The ratio laid down in Mohinder Singh Gill ( AIR 1978 SC 851 ) (supra) is too well known requiring any further dilation. In the decision of Bhupendra Nath Hazarika and other ( AIR 2013 SC 234 ) (supra), it is held that when appointment is made dehors the rules, the appointee cannot claim seniority even if his appointment is later on regularized. 30. In view of the above circumstances of the case in hand, as it has been discussed above, and in the light of the legal position summed up above, I am of the considered opinion that the petitioner is not entitled to be granted seniority from a date anterior to 29.06.2007 i.e. the date when he was born in the cadre of Nagaland Secretariat Service, in view of the Cabinet decision. Any retrospective seniority to the petitioner would be contrary to the provisions of the Nagaland secretariat Subordinate Service Rules, 1972, as amended,-and any such fixation of seniority over the direct recruitees who were already in the cadre, is not permissible. Resultantly, the instant writ petition is found to be bereft of merit arid accordingly, the same stands dismissed. There shall, however, be no order as to cost.