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2022 DIGILAW 387 (GAU)

Veduzo Sasu v. State of Nagaland

2022-04-08

NELSON SAILO

body2022
JUDGMENT : Nelson Sailo, J. 1. The dispute involved in the present writ petition is with regard to the inter-se-seniority between the writ petitioners and the private respondents. According to the petitioners, they were directly appointed as Block Development Officers (BDO) through a selection process while the private respondents have been absorbed and regularized to the said post after they were either appointed on contract basis or brought on deputation from other Departments except for respondent No. 17, who was promoted from a lower post to the post of BDO. 2. Heard Mr. A. Zhimomi, learned counsel for the petitioners and Mr. Taka Masa, learned Senior Counsel assisted by Mr. Arenlong, learned counsel appearing for respondent Nos. 4 to 16. Also heard Mr. K Wotsa, learned Senior Government Advocate appearing for the respondent Nos. 1, 2 and 3. None appears for the respondent No. 17 despite notice. 3. Brief facts of the case essential for disposal of the writ petition may be noticed at the outset. Pursuant to the advertisement floated by the Nagaland Public Service Commission (NPSC) vide Addendum dated 12.07.2012 for 16 posts of BDO under the Rural Development Department which was responded to by the petitioners, they participated in the selection process and were selected and appointed as BDOs between 04.07.2013 and 31.01.2014. As for the private respondent Nos. 4 to 16, they were either initially serving as Assistant Teacher, Graduate Teachers, Lower Division Assistant and Supervisor (Class-III) Non-Gazetted in other Departments of the State Government or were appointed as Rural Development Officer (RDO) on contract basis for a specified period between 03.12.1999 to 18.03.2010. As for the respondent No. 17, she was initially appointed as Mukhya Savika (MS) on 10.12.2003 for initial period of 6 (six) months and her service was regularized w.e.f. 19.02.2009 vide Order dated 07.04.2009. Thereafter, she was given officiating promotion to the post of BDO/RDO Vide Order dated 11.11.2013. The petitioner No. 17 is placed below the petitioner Nos. 1 to 14 in the Tentative Seniority List issued vide Memorandum dated 19.10.2015 but above the petitioner No. 15. The State Government in the Rural Development Department vide Memorandum dated 19.10.2015 issued a tentative seniority list of officers under the establishment of Rural Development Department as on 01.10.2015 (Annexure-12) and thereafter, another Tentative Seniority List vide Memorandum dated 23.04.2018 (Annexure-16). 1 to 14 in the Tentative Seniority List issued vide Memorandum dated 19.10.2015 but above the petitioner No. 15. The State Government in the Rural Development Department vide Memorandum dated 19.10.2015 issued a tentative seniority list of officers under the establishment of Rural Development Department as on 01.10.2015 (Annexure-12) and thereafter, another Tentative Seniority List vide Memorandum dated 23.04.2018 (Annexure-16). In both memorandums, the petitioners have been placed below the private respondents in the seniority and aggrieved with the same, a representation was submitted to the respondent authorities concerned, which however came to be rejected by the Rural Development Departmental Seniority Dispute Committee in its meeting held on 16.10.2018. Aggrieved, the petitioners are before this Court. 4. Mr. A. Zhimomi, learned counsel for the petitioners submits that as per the Nagaland Rural Development Service Rules, 2006 (Rules of 2006), the post of BDO can be filled up 25% by way of promotion from amongst the confirmed Research Assistants/Mukhya Savikas/Investigators, who have rendered not less than 5 years of continuous service in the Grade on merit-cum-seniority basis provided such candidate has a Bachelors' Degree in any discipline from any University recognized by the Association of Indian Universities and the remaining 75% of the posts by way of direct recruitment through NPSC from amongst candidates possessing the Bachelors Degree in any discipline from any University recognized by the Association of Indian Universities. He submits that the private respondents were not appointed to the post of BDO in terms of the Service Rules of 2006 and therefore, dehors the said Rules of 2006. He submits that as for the petitioners, they were appointed directly to the post on the basis of a selection conducted by the NPSC and in terms of the Rules of 2006 and therefore, the private respondents could not have been placed above the petitioners in the Tentative Seniority List of 2015 and 2018. He further submits that although the State respondents have not published a final inter-se-seniority list but the Tentative Seniority List of 2018 has been accepted as the final inter-se-seniority list, since the same has been acted upon by the State respondents for promoting Officers in various grades under the Rural Development Department. He further submits that although the State respondents have not published a final inter-se-seniority list but the Tentative Seniority List of 2018 has been accepted as the final inter-se-seniority list, since the same has been acted upon by the State respondents for promoting Officers in various grades under the Rural Development Department. He also submits that although the rejection of the representation of the petitioners has not been formally communicated to them but the meeting minutes dated 16.10.2018 of the Rural Development Department Seniority Dispute Committee speaks for itself. As such, an appointment made dehors the rules and also giving seniority over the persons who have been appointed in terms of the relevant service rules, such as the petitioners, cannot be sustained and therefore, the interference of this Court is called for. In support of his submission, the learned counsel has relied upon the decision of a Division Bench of this Court in M. Nakhro vs. State of Nagaland and Others, 2008 (Supp.) GLT 676. 5. Mr. Taka Masa, learned Senior Counsel appearing for respondent Nos. 4 to 16 submits that the petitioners have only challenged the Tentative Seniority List issued vide Memorandum dated 23.04.2018 and not the tentative seniority issued vide Memorandum dated 19.10.2015. Since the Tentative Seniority List of 2018 is not in super-session of the earlier Tentative Seniority List of 2015, even if the Tentative Seniority List of 2018 is interfered with by this Court, the Tentative Seniority List of 2015 in which all the private respondents have been placed senior to the petitioners will remain. As such, no relief can be given to the petitioners under the given facts and circumstances of the case. He further submits that the writ petition is also pre-mature since no final inter-se-seniority list has been published by the State respondents and that there is no formal communication made to the petitioners about the rejection of their claim of seniority over the private respondents. Therefore, even for these two reasons, the writ petition is not maintainable and should be rejected. 6. The learned Senior Counsel also submits that the private respondents were all regularized and absorbed to the service as BDO even before the petitioners were born in the cadre and therefore, the petitioners have no locus-standi to raise any grievance on their seniority insofar as the private respondents are concerned. 6. The learned Senior Counsel also submits that the private respondents were all regularized and absorbed to the service as BDO even before the petitioners were born in the cadre and therefore, the petitioners have no locus-standi to raise any grievance on their seniority insofar as the private respondents are concerned. By referring to Rule 3 of the Rules of 2006, the learned Senior Counsel submits that the application of the Rules is on persons recruited to the service before or after the commencement of the Rules and therefore, the private respondents are clearly covered by the said Rules of 2006. He submits that in absence of any specific provision for absorption to the service, the same can be supplemented by way of executive instructions in the form of Office Memorandums. He submits that the State Government has issued various Office Memorandums, such as Office Memorandums dated 19.11.1975, 09.07.2004, 21.07.2004, etc. by which, those persons appointed on contract basis or transferred in on deputation can be absorbed to the post in which they are appointed or deputed subject to being screened prior to such absorption and regularization. He submits that the private respondent Nos. 4 to 16 were accordingly screened and were found to be suitable to be absorbed against the post in question. As such, they were all regularized and absorbed prior to the appointment of the petitioners. The petitioners therefore cannot have any grievance against the seniority position of the private respondents. 7. Mr. Taka Masa, learned Senior Counsel also submits that the petitioners have not challenged the regularization and absorption of the private respondents as BDOs and therefore, they cannot have the right to question their seniority vis-à-vis the private respondents since their seniority position as per the Tentative Seniority List of 2015 and 2018 is only the benefit flowing out of their absorption and regularization to the post in question. Under the circumstance, he submits that the writ petition is without any merit and the same should be dismissed. Under the circumstance, he submits that the writ petition is without any merit and the same should be dismissed. In support of his submission, the learned Senior Counsel has relied upon the following authorities: (i) Amarjeet Singh and Others vs. Devi Ratan and Others, (2010) 1 SCC 417 (ii) S. Sumnyam and Others vs. Limi Niri and Others, (2010) 6 SCC 791 (iii) Ganga Vishan Gujarati and Others v. State of Rajasthan and Others, (2019) 16 SCC 28 (iv) Vinod Verma vs. Union of India and Others, (2019) 20 SCC 576 (v) Sethi Auto Service Station vs. Delhi Development Authority, (2009) 1 SCC 180 (vi) Er. Fineson Pojar and Others vs. Er. Hokato Sema and Others, W.A. No. 8(K)/13-14(K)/13, dated 30.11.2017 8. Mr. K. Wotsa, learned Senior Government Advocate appearing for the State respondents adopts the arguments of Mr. Taka Masa, learned Senior Counsel for the private respondents. He submits that the petitioners have not challenged the absorption and regularization of the private respondents to the post of BDO and therefore, they have no locus-standi to challenge their seniority as published in the Tentative Seniority List of 2015 and 2018. He submits that the State's action in regularizing and absorbing the private respondents is guided by the guidelines issued through various Office Memorandums which are supplementary to the Rules of 2006 and not contrary to the same. Therefore, under the circumstance, the writ petition being without any merit, the same should be dismissed. 9. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 10. Rule 8 of Rules of 2006 provides for the method of recruitment and qualification etc. for appointment to various posts under the Rural Development. Serial No. 6 of Schedule-II of the Rules of 2006 provides that the post of RDO/BDO/Assistant Project Officer (APO) is to be filled up 25% by way of promotion from the feeder cadre and the remaining 75% by way of direct recruitment subject to fulfillment of the educational qualification as prescribed in both cases. There is no dispute to the fact that all the petitioners have been appointed pursuant to the recruitment process that was initiated following the NPSC advertisement vide Addendum dated 12.07.2012. All the petitioners have been appointed to the post of BDO between 04.07.2013 and 31.01.2014. There is no dispute to the fact that all the petitioners have been appointed pursuant to the recruitment process that was initiated following the NPSC advertisement vide Addendum dated 12.07.2012. All the petitioners have been appointed to the post of BDO between 04.07.2013 and 31.01.2014. There is also no dispute to the fact that the private respondents were appointed to the post in question by way of absorption, regularization and promotion in case of the respondent No. 17 prior to the petitioners being appointed to the post in question. As already noticed earlier, the respondent No. 17 was promoted on officiating basis on 11.11.2013 to the post of BDO/RDO from the post of Mukhya Savika (MS) and she has been placed above the petitioner No. 15 only. 11. Although Rules of 2006 do not provide for absorption to the service but Rule 3 of the same Rules otherwise provides that the Rule shall apply to the persons: (i) who, at the commencement of the Rules, are holding substantively Gazetted posts specified in the schedule-I appended to the rules, (ii) those recruited to the service before or after the commencement of the Rules, (iii) those recruited to the service in accordance with the provision of the Rules. As already noticed herein above, the State Government has come up with the Office Memorandum dated 19.11.1975 insofar as counting of service for seniority is concerned by providing that seniority will be counted from the date of absorption on regular basis. The same has again been reiterated in the Office Memorandum dated 09.07.2004. In case of absorption in the deputation post, seniority of the person being absorbed is to be counted with effect from the date of absorption i.e. from the date of the approval given by the competent authority/the Cabinet vide Office Memorandum dated 21.07.2004. 12. What can be noticed is that the petitioners have not challenged the absorption and regularization of the private respondents against the post of BDO. Likewise, they have also not challenged the Office Memorandum by which it has been provided that seniority in the post in question will be counted from the date of absorption or from the date on which absorption is approved by the Cabinet. Therefore, in absence of any challenge to the same, the petitioner cannot be said to have any grievance on their seniority position. Therefore, in absence of any challenge to the same, the petitioner cannot be said to have any grievance on their seniority position. Further, the Tentative Seniority List of 2015 and 2018 not being a final inter-se-seniority list, it would be only pre-mature to challenge the same though promotions may have been made on the basis of the same. 13. A Division Bench of this Court in Er. Fineson Pojar and Others (supra) in the given facts of that case held that although appointment of the private respondents on contract basis were dehors the rules, they were regularized pursuance to the Cabinet decision and the same having not been challenged, they are therefore to be considered as members of the Nagaland Engineering Service and governed by the relevant rules. 14. A reference has been made by the learned counsel for the petitioners to the case of M. Nakhro vs. State of Nagaland and Others (supra) to contend that as the private respondents were absorbed and regularized dehors the Rules of 2006, they cannot be given seniority position above the petitioners. The learned counsel has also drawn the attention of this Court to the observation made in the said judgment that although absorption of the appellant in that case was not challenged, the Court could still interfere with the same in exercise of its extraordinary powers conferred on a writ Court. However, a perusal of the said judgment would go to show that the writ appellant was the respondent No. 6 in the writ proceedings and the respondents in the writ appeal were the writ petitioners. By Notification dated 29.09.2005, the writ appellant was absorbed into the service where he served as deputationist and vide Notification dated 07.12.2005, he was given seniority w.e.f. 06.10.1993 i.e. the date in which he was appointed in his parent Department. The said 2 (two) notifications were put to challenge by the writ petitioners. The writ Court did not interfere with the Notification dated 29.09.2005 but it set aside the Notification dated 07.12.2005 by which, the writ appellant was given seniority with effect from the date he joined his parent Department. The writ appeal filed by the respondent No. 6 was found to have no merit and was dismissed however, without interfering his permanent absorption vide the Notification dated 29.09.2005. 15. The writ appeal filed by the respondent No. 6 was found to have no merit and was dismissed however, without interfering his permanent absorption vide the Notification dated 29.09.2005. 15. Coming to the present case, as already noticed herein above, the petitioners have not challenged the absorption and regularization of the private respondents but have only prayed for re-fixation of their seniority position above the private respondents in the Tentative Seniority List of 2018 apart from seeking the setting aside of Item No. 44 of the meeting minutes dated 16.10.2018. The Apex Court in the case of Sumnyam and Others Vs. Limi Niri and Others (supra) in the given facts of that case held that the respondents in their writ petition neither challenged the initial appointment order of the appellants on temporary or adhoc basis nor did they challenge the subsequent order passed by the State Government on the recommendation of the Public Service Commission regularizing the services of the appellant and therefore, such orders have become final and binding on all concerned. 16. The Apex Court in Ganga Vishan Gujarati and Others vs. State of Rajasthan and Others (supra) held that a consistent line of precedent made by the same Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. The said principle merged from the decision of the Constitution Bench of the Apex Court in Direct Recruitment Class-II Engg. Officers' Assn vs. State of Maharashtra, (1990) 2 SCC 715 , which was reiterated in State of Bihar vs. Akhouri Sachindra Nath, 1991 Supp. (1) SCC 334 and State of Uttaranchal vs. Dinesh Kumar Sharma, (2007) 1 SCC 683 . 17. The Apex Court in Amarjeet Singh and Others (supra) in the given facts of that case has held that seniority cannot be given to an officer prior to his birth in the cadre. Similar was the view taken by the Apex Court in Ganga Vishan Gujarati and Others (supra). 17. The Apex Court in Amarjeet Singh and Others (supra) in the given facts of that case has held that seniority cannot be given to an officer prior to his birth in the cadre. Similar was the view taken by the Apex Court in Ganga Vishan Gujarati and Others (supra). In the present case as well, as already stated herein above, the private respondents were absorbed into the service before the petitioners were selected and appointed to the post in question and therefore, claiming seniority even prior to being appointed to the service, in view of the decision reflected herein above, will not be tenable. 18. Insofar as the grievance expressed by the petitioners in respect of Item No. 44 of the meeting minutes dated 16.10.2017 is concerned, it may be seen that the recommendations made against the said item and also in the rest of the items was to be circulated to all concerned within a time frame for further examination and necessary action. Therefore, having regard to the same, Item No. 44 cannot be said to be conclusive and thus, considered to be a decision taken by the Government. In Sethi Auto Service Station and Another vs. Delhi Development Authority and Others (supra), the Apex Court referred to the Constitution Bench Judgment of the same Court in Bachhittar Singh vs. State of Punjab, AIR 1963 SC 395 wherein, the effect of an order passed by a Minister on a file and which was not communicated to the person concerned was considered. By referring to Article 166(1) of the Constitution, the Apex Court held that order of the Minister could not amount to an order by the State Government unless it was expressed in the name of the Raj Pramukh as required by the said Article and was then communicated to the party. The Apex Court therefore held that opinion becomes a decision of the Government only when it is communicated to the person concerned. The ratio laid down in my considered view would also apply to the facts and circumstances of the present case as well. 19. Thus, upon due consideration of the case in its entirety, I do not find merit in the writ petition and the same is accordingly dismissed.