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2022 DIGILAW 495 (GAU)

Kewepe Kapfo v. Speaker, NLA

2022-05-12

NELSON SAILO

body2022
JUDGMENT : 1. Heard Mr. C.T. Jamir, learned Senior Counsel assisted by Mr. I. Imchen, learned counsel for the petitioners and Mr. T.B. Jamir, learned Senior Addl. Advocate General for the respondent Nos. 1 & 2. Also heard Mr. Taka Masa, learned Senior Counsel assisted by Mr. Sentilong, learned counsel for the respondent No. 3. 2. Claiming to have a common and identical grievance, the 4 petitioners have joined hands to file the instant writ petition. They have assailed the Office Memorandum dated 01.11.2021 (Annexure- D) by which the respondent No. 1 has directed restructuring of the cadre of the up-graded post of Addl. Secretary (TPT) held by the respondent No. 3 by encadrering the same to the 3rd Schedule –A from the 3rd Schedule-D of the Nagaland Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1999 (Rules of 1999) as amended in 2012. Upon such encadrement, the respondent No. 3 is to be accommodated against the substantive post of Addl. Secretary, subject to availability of vacant post. The petitioners have also assailed the Notification dated 01.11.2021 (Annexure-E) by which upon the restructuring and encadrement through the Office Memorandum dated 01.11.2021, the service of the respondent No. 3 was regularized as Addl. Secretary (Transport) against the sanctioned post of Addl. Secretary, Nagaland Legislative Assembly (the Assembly) with effect from forenoon of 01.11.2021. 3. Brief facts of the case as projected by the petitioner is that they are regular employees under the Assembly Secretariat. The petitioner No. 1 is the seniormost Joint Secretary who is to become eligible for promotion to the post of Addl. Secretary on 27.11.2021. Be it stated herein that the writ petition was filed by the petitioners on 24.11.2021. The petitioner No. 2 is the Deputy Secretary in the Assembly Secretariat and will become eligible for being included in the zone of consideration for promotion to the post of Joint Secretary upon the retirement of the 2 seniormost incumbents due to retire on 28.02.2022 and 31.01.2022. As for the petitioner No. 3, he is the seniormost Under Secretary of the Assembly Secretariat and eligible to be promoted to the post of Deputy Secretary as and when vacant post arises. Similarly, the petitioner No. 4 is also the seniormost in the post of Section Officer and is eligible to be considered for promotion to the next higher post of Under Secretary as and when vacancy arises. Similarly, the petitioner No. 4 is also the seniormost in the post of Section Officer and is eligible to be considered for promotion to the next higher post of Under Secretary as and when vacancy arises. According to the petitioners, once the vacancy in the highest post is filled up, they are eligible to be considered for promotion in the resultant chain vacancies in the next lower post concerned. They contend that the Departmental Promotion Committee (DPC) constituted under the Rules of 1999 as amended in 2012 is required to consider all eligible candidates who are within the zone of consideration for promotion to the next higher post but in the instant case, without doing so, the respondent authorities have filled up the post of Addl. Secretary by promoting and regularizing the respondent no. 3 in violation of all the norms and rules. 4. The petitioners contend that the pre-existing Nagaland Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1966 (Rules of 1966) was repealed by the Rules of 1999 and it came into force with effect from 17.11.1999. The Rules of 1999 was thereafter amended by the Nagaland Legislative Assembly Secretariat (Recruitment and Conditions of Service 1st Amendment) Rules, 2005 (1st Amendment) which came into force with effect from 23.02.2005. Subsequently, the Rules of 1999 was again amended by the Nagaland Legislative Assembly Secretariat (Recruitment and Conditions of Service 2nd Amendment) Rules, 2012 (2nd Amendment) which also came into effect from the date of its Notification i.e., 21.08.2012. 5. Mr. C.T. Jamir, learned Senior Counsel for the petitioners submit that as per the 2nd Amendment, Rule 10(a) and Rule 10(b) were added. He submits that as per Rule 10(b), inter-transfer of posts between the various schedules in the Rules in the event of similar scale between the cadres is prohibited. He submits that the respondent No. 3 belongs to the 3rd Schedule-D and therefore, cannot be promoted or transferred amongst the post provided in 3rd Schedule-A. However, by the impugned Office Memorandum dated 01.11.2021, the respondent No. 3 has been illegally encadred with the post held by her into the 3rd Schedule-A in violation of Rule 10(b) of the Rules of 1999 as amended in the year 2012. Mr. Mr. C.T. Jamir, learned Senior Counsel further submits that as per Rule 9 of the Rules of 1999 there are only 3 methods of recruitment to the posts in the Assembly Secretariat i.e., by way of promotion, deputation or direct recruitment. As stated earlier, Rule 10 (b) provides for streamlining of existing cadre and that the respondent authorities have only flouted their own rules. 6. Mr. C.T. Jamir, learned Senior Counsel submits that the respondent No. 3 was initially appointed as Assistant Transport Officer vide Notification dated 01.10.1996 and in the year 2004, the post was upgraded to Deputy Transport Officer and the respondent No. 3 was appointed to the upgraded post by treating the upgraded post as personal to her. It was provided that the post will automatically revert to the original post of Assistant Transport Officer as and when the incumbent vacates the post. Again by an order dated 04.03.2021, the respondent No. 3 was appointed to the upgraded post of Transport Officer with similar terms and conditions as in the post of Deputy Transport Officer. Subsequently, vide Notification dated 30.10.2014, the respondent No. 3 was again promoted to the upgraded post of Senior Transport Officer and thereafter, to the upgraded post of Joint Secretary, Transport and Addl. Secretary, Transport vide Notifications dated 30.11.2017 and 30.11.2019 respectively. All the promotions were personal to the incumbent and would be reverted to the original post when the incumbent vacates the post. Within a span of 25 years, the post held by the respondent Nos. 3 was upgraded for as many as 5 times and promotion was given to her against the upgraded post by making it personal to the incumbent. 7. The learned Senior Counsel submits that the post of Addl. Secretary as provided under 3rd Schedule-A of the Rules of 1999 as amended in 2012 is to be filled up by promotion from the Grade of Joint Secretary having minimum 2 years continuous service in the grade or as is deemed fit and proper. Rule 12 provides that the Secretary and the Addl. Secretary shall be appointed by the Governor in consultation with the Speaker. However, the respondent No. 3 has been appointed as Addl. Secretary in violation of the said provision. 8. Rule 12 provides that the Secretary and the Addl. Secretary shall be appointed by the Governor in consultation with the Speaker. However, the respondent No. 3 has been appointed as Addl. Secretary in violation of the said provision. 8. The learned Senior Counsel further submits that the respondent No. 3 submitted a representation dated 27.08.2020 to the respondent No. 1 for considering her case to be posted anywhere other than Transport Department of the Assembly Secretariat and to allow her to exercise option so that she can be posted in any other branches of the Assembly Secretariat. However, as her representation was not considered and disposed by the said authority, she filed WP(C) No. 20(K)/2021 before this Court and the same was disposed of vide order dated 09.07.2021 with a direction to the respondent No. 1 to consider and dispose the representation of the respondent No. 3 within a time frame and by way of a speaking order. The representation of the respondent No. 3 thereafter came to be considered and disposed of with the issuance of the impugned Office Memorandum and Notification both dated 01.11.2021. 9. The learned Senior Counsel submits that the entry level of the post held by the respondent No. 3 and the petitioners is totally different and likewise, their channel of promotion is also different. The post held by the respondent No. 3 as Addl. Secretary (TPT) is within the Transport Department of the Assembly Secretariat. The post of Addl. Secretary in the Assembly Secretariat is to be filled by 100% by way of promotion from the grade of Joint Secretary with minimum 2 years of continuous service in the grade or as deemed fit and proper. The petitioner No. 1 is currently serving as the Joint Secretary in the Assembly Secretariat and he is eligible to be promoted to the post of Addl. Secretary. However, the respondent authorities hastily restructured and encadred the upgraded post of Addl. Secretary (TPT) held by the respondent No. 3 to that of Addl. Secretary in the general cadre and regularized the service of the respondent No. 3 in violation of the Rules of 1999 as amended in 2012. 10. Mr. Secretary. However, the respondent authorities hastily restructured and encadred the upgraded post of Addl. Secretary (TPT) held by the respondent No. 3 to that of Addl. Secretary in the general cadre and regularized the service of the respondent No. 3 in violation of the Rules of 1999 as amended in 2012. 10. Mr. C.T. Jamir, learned Senior Counsel submits that in the impugned Office Memorandum dated 01.11.2021, reference of the High Court’s order dated 14.07.2021 passed in WP(C) No. 20(K)/2021 has been made to show as if the Office Memorandum was issued as directed by the High Court. He submits that by doing so, the official respondents have only used the direction passed by the High Court as a cover to do things indirectly which otherwise they could not have done directly only to favour the respondent No. 3. He submits that the impugned Office Memorandum dated 01.11.2021 and Notification impugned also dated 01.11.2021 have been purportedly issued in exercise of Rule 19 and Rule 22 of the Rules of 1999 as amended in the 2012 which pertains to relaxation in exceptional cases and residuary powers of the Speaker respectively. He submits that the relaxation of any provision of the Rules have to be considered and exercise only in exceptional cases and that too, in a just and equitable manner and not to favour an individual or a particular section of the Assembly Secretariat. In the present case, the impugned Office Memorandum and the Notification has been issued in a most arbitrary manner and is detrimental to the interest of the petitioners. As such, the same is liable to be set aside. In so far as the background of the case by which the post of ATO was created and the decision of the then Hon’ble Speaker said to have been taken on 06.08.1996, the same are only opinions rendered and notings made in the file. Therefore, unless the same are translated into a formal order of notification, they cannot have any bearing and effect to the case projected by the petitioners. Mr. C.T. Jamir, the learned Senior Counsel in support of his submission have relied upon the following authorities:- (1) Raju Ramsing Vasave Vs. Mahesh Deorao Bhivapurkar & Ors. (2008) 9 SCC 54 (2) Charulata Behera Vs. Pravati Parida & Ors. (2015) 4 SCC 30 (3) Asangla Taier Vs. Thungdeno Mozhui & Ors. Mr. C.T. Jamir, the learned Senior Counsel in support of his submission have relied upon the following authorities:- (1) Raju Ramsing Vasave Vs. Mahesh Deorao Bhivapurkar & Ors. (2008) 9 SCC 54 (2) Charulata Behera Vs. Pravati Parida & Ors. (2015) 4 SCC 30 (3) Asangla Taier Vs. Thungdeno Mozhui & Ors. 2021 (2) GLT 710 (4) Pimpri Chinchwad New Township Development Authority Vs. Vishnudey Cooperative Housing Society & Ors. (2018) 8 SCC 215 (5) Shanti Sports Club & Anr. Vs. Union of India & Ors. (2009) 15 SCC 705 . 11. Mr. T.B. Jamir, learned Senior Addl. Advocate General appearing for the respondent Nos. 1 & 2 submits that the petitioners do not have any locus standi to file the writ petition inasmuch as, none of them were eligible to be considered for promotion to the post of Addl. Secretary at the time of filing the writ petition. He submits that the petitioner No. 1 did not have the requisite length of service under the Rules of 1999 as amended in 2012 for promotion to the post of Addl. Secretary. The petitioner No. 2 is due for superannuation in November, 2023 and being the juniormost officer in the post of Deputy Secretary and considering the remaining years of service left before he superannuates, he does not have the length of service left to be eligible to be considered for promotion to the post of Addl. Secretary. Similarly, the petitioner No. 3 who is in the post of Under Secretary will be due for superannuation in 3 years time and will not be having the length of service required for being considered for promotion to the post of Addl. Secretary. Lastly, the petitioner No. 4, who is the seniormost Section Officer and having about 7 years of service left before her superannuation also does not have the required length of service left in order to be considered for promotion to the post of Addl. Secretary. In fact, during the pendency of the writ petition, she has been promoted to the post of Under Secretary vide Notification dated 14.02.2022. Mr. T.B. Jamir submits that it is a well settled principle of law that only a person aggrieved can invoked the writ jurisdiction under Article 226 of the Constitution of India for enforcement of his/her constitutional rights. In fact, during the pendency of the writ petition, she has been promoted to the post of Under Secretary vide Notification dated 14.02.2022. Mr. T.B. Jamir submits that it is a well settled principle of law that only a person aggrieved can invoked the writ jurisdiction under Article 226 of the Constitution of India for enforcement of his/her constitutional rights. As none of the petitioners at the time of the filing of the writ petition were eligible to be considered for promotion to the post in question, none of their Constitutional rights have been infringed and therefore, they have no locus standi to file the writ petition. 12. Mr. T.B. Jamir further submits that with the concurrence of the Finance Department conveyed on 10.07.1995, the post of Assistant Transport Officer (ATO), the Assistant Committee Officer (ACO) and Assistant Research Officer (ARO) were created in the Assemble Secretariat. All the posts are Class-II Gazetted and carry identical pay of Rs. 1800-3700/-. Therefore, the 3 posts are the same in status and the only difference is their designation. He submits that in the preexisting Rules of 1966, the post of ATO and ARO were non-existent but after the said posts were created, the Secretary of the Assembly put up a file on 06.08.1996 to the then Hon,ble Speaker stating that the 3 posts being identical, it would be appropriate to assign capable person to man the posts if all the posts are treated as one in the general cadre. He submits that even in the Advertisement dated 20.12.1995 issued by the Assemble Secretariat for filling up the post of ARO and ATO, the qualifications prescribed were similar. Pursuant to the Advertisement, the respondent No. 3 was appointed and in her appointment order, nothing has been stated about her cadre and that besides the duties in the Transport Branch, the respondent No. 3 has been also assigned with other responsibilities such as, looking after various Assembly committees. Similarly, the staffs and officers from the general branch over the years have also been assigned duties and responsibilities in the Transport Branch. In other words, the officers and staffs in the Assembly Secretariat were interchangeable from 1 branch to another. Similarly, the staffs and officers from the general branch over the years have also been assigned duties and responsibilities in the Transport Branch. In other words, the officers and staffs in the Assembly Secretariat were interchangeable from 1 branch to another. However, with the amendment of the Rules of 1999 in the year 2012, Rule 10(b) was incorporated providing that there shall be no inter-transferability between the various schedules in the event of similar scale between the cadres. The respondent No. 3 being aggrieved submitted her representation for giving her a chance to exercise option for being transferred in other branches of the Assembly Secretariat other than the Transport Department. As the same was not considered, the respondent No. 3 approached this Court through WP(C) No. 20(K)/2021 seeking for a direction to the respondent authorities to dispose of her representation. 13. Consequently, a direction was issued by this Court and in compliance with the same, the Office Memorandum dated 01.11.2021 restructuring the cadre of the upgraded post held by the respondent No. 3 was passed by encadrering the same to 3rd Schedule-A of the Rules. Accordingly, Notification was issued regularizing the services of the respondent No. 3 against the sanctioned post of Addl. Secretary. The said exercise having been done by invoking the powers conferred upon the respondent No. 1 by Article 187 of the Constitution of India and also Rule 19 and 22 of the Rules of 1999 as amended in 2012 may not be interfered with by this Court. The writ petition rather being without any merits should be dismissed. Mr. T.B. Jamir in support of his submission has relied upon the following authorities:- (1) Union of India Vs. N.Y. Apte & Ors. (1998) 6 SCC 741 (2) National Highways Authority of India Vs. Ganga Enterprises & Anr. (2003) 7 SCC 410 (3) State of Jharkhand Vs. Bhadey Munda, (2014) 10 SCC 398 (4) S.P. Shivprasad Pipal Vs. Union of India, (1998) 4 SCC 598 (5) Dr. Khagendra Nath Baishya Vs. State of Assam & Ors. (1995) 2 GLR 1 (6) Union of India Vs. Pushpa Rani (2008) 9 SCC 242 (7) State Jammu & Kashmir Vs. Triloki Nath Khosa & Ors. (1974) 1 SCC 19 (8) Inbasagaran & Anr. Vs. S. Natarajan, (2015) 11 SCC 12 14. Mr. Taka Masa, learned Senior Counsel submits that he adopts and relies upon the arguments made by Mr. (1995) 2 GLR 1 (6) Union of India Vs. Pushpa Rani (2008) 9 SCC 242 (7) State Jammu & Kashmir Vs. Triloki Nath Khosa & Ors. (1974) 1 SCC 19 (8) Inbasagaran & Anr. Vs. S. Natarajan, (2015) 11 SCC 12 14. Mr. Taka Masa, learned Senior Counsel submits that he adopts and relies upon the arguments made by Mr. T.B. Jamir, learned Senior Addl. Advocate General. He further submits that the petitioners before filing the writ petition did not file any representation before the respondent authorities and for that reason, the writ petition is not maintainable. He submits that the Rules of 1999 as amended in the year 2012 is only prospective in nature and the same cannot take away the vested right of the respondent No. 3 which already existed prior to the framing of the Rules of 1999 and its amendment particularly by 2012 amendment. He submits that the respondent No. 3 was appointed vide Notification dated 01.10.1996 under the Rules which existed then and therefore, her appointment cannot be equated with the appointments made after the framing of the Rules of 1999 and its subsequent amendments. 15. Referring to the affidavit-in-opposition filed by the respondent No. 3, the learned Senior Counsel submits that from the documents and information provided to the respondent No. 3 on her application made through RTI, is amply clear that the creation of the post of ARO and ATO was always with a mind for treating the said post as a general cadre. Both the posts were filled up by a common process and having a common criteria and qualification. While the posts of ARO being filled up by the incumbent concerned, had the opportunity to advance higher up in the service, the respondent No. 3 as ATO was put in a disadvantageous position with the enactment of the Rules of 1999 and its subsequent amendment. Therefore, the respondent No. 3 submitted her representation on many occasions to place her in the common cadre so that she may have the opportunity to advance in her service career. Although considerations favourable to the respondent No. 3 had always been there prior to the issuance of the impugned Office Memorandum but the same was never decided in a formal manner. Although considerations favourable to the respondent No. 3 had always been there prior to the issuance of the impugned Office Memorandum but the same was never decided in a formal manner. Subsequently, as directed by the High Court, vide order dated 14.07.2021 in WP(C) No. 20(K)/2021, the respondent after considering all aspects including the decision already taken by the then Hon’ble Speaker on 06.08.1996, issued the impugned Office Memorandum dated 01.11.2021 and the impugned Notification dated 01.11.2021. The petitioners therefore cannot have any grievance against the same more particularly when they have not challenged the earlier decision of the then Hon’ble Speaker taken on 06.08.1996 and which was also reflected in the Office Memorandum dated 01.11.2021 challenged by the petitioners. Therefore, merely challenging the consequential order will be of no avail to the petitioners. The learned Senior Counsel in support of his submission has relied upon the following authorities:- (1) State of Punjab Vs. Davinder Pal Singh Bhullar & Ors. (2011) 14 SCC 770 (2) Bharat Sanchar Nigam Limited Vs. R. Santhakumari Velusamy & Ors. (2011) 9 SCC 510 (3) Amarjeet Singh & Ors. Vs. Devi Ratan & Ors. (2010) 1 SCC 417 (4) Judgment & Order dated 01.02.2022 passed by the Supreme Court in Civil Appeal Nos. 823-827/2022 (State of Manipur & Ors. Vs. Surjakumar Okram & Ors). (5) J.S. Yadav Vs. State of Uttar Pradesh & Anr. (2011) 6 SCC 570 (6) Lekh Raj & Ors. Vs. RAnjit Singh & Ors. (2018) 12 SCC 750 . (7) Shripal Bhati & Anr. Vs. State of Uttar Pradesh & Ors. (2020) 12 SCC 87 . 16. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. All the learned counsels for the rival parties have strenuously placed their arguments both on the maintainability as well as on the merit of the case. Since the counsel for the respondents have raised the issue of maintainability, the same shall be considered first. 17. Mr. T.B. Jamir, learned Senior Addl. Advocate General has relied upon the Apex Court decision in Union of India Vs. N.Y. Apte & Ors. (supra) to contend that the petitioners do not have the locus standi to file the writ petition as none of them were eligible for consideration for promotion to the post of Addl. Secretary in the Assembly Secretariat. T.B. Jamir, learned Senior Addl. Advocate General has relied upon the Apex Court decision in Union of India Vs. N.Y. Apte & Ors. (supra) to contend that the petitioners do not have the locus standi to file the writ petition as none of them were eligible for consideration for promotion to the post of Addl. Secretary in the Assembly Secretariat. In the given facts of that case, the Apex Court was of the view that at the time when the respondents filed the writ petition before the High Court of Delhi, they were not in the zone of consideration for promotion to the post of MG-I. Therefore, when the respondents approached the Court, they could not even claimed that they had a chance of promotion at that point of time and therefore, the writ petition ought not to have been entertained at their instance. 18. In the case of National Highways Authority of India Vs. Ganga Enterprises & Anr. (supra), the Apex Court in the given facts of that case was of the view that 2 questions arose for the High Court to decide namely, (a) whether the forfeiture of security deposit is without authority of law and without any binding contract between the parties and also contrary to Section 5 of the Contract Act and (b) whether the writ petition is maintainable in a claim arising out of breach of contract. According to the Apex Court, the High Court should have decided question (b) first as the same goes to the root of the matter since it was a settled law that disputes relating to contracts cannot be agitated under Article 226 of the Constitution of India. 19. Applying the above two (2) decisions to the present case, it may however be seen that the writ petition could have been dismissed at the motion stage for want of locus standi since admittedly at that point of time, none of the petitioners were eligible to be considered for promotion to the post of Addl. Secretary in the Assembly Secretariat. The petitioner No. 1 being the closest for consideration fell short of 3 days to complete the minimum 2 years of service in the feeder grade. Secretary in the Assembly Secretariat. The petitioner No. 1 being the closest for consideration fell short of 3 days to complete the minimum 2 years of service in the feeder grade. However, as can be seen, the writ petition was not dismissed and in the meantime, the petitioner No. 1 has acquired the minimum length of service required for being considered for promotion to the post in question. Likewise, the present case is not a case of contract between the parties so as to determine the maintainability of the writ petition. Nevertheless, the issue of maintainability perhaps should have been taken up in the earlier stage of the writ proceedings but the same was not done. 20. The Apex Court in Raju Ramsing Vasave Vs. Mahesh Deorao Bhivapurkar & Ors. (supra) in the given facts of that case opined that the Court could have dismissed the application on the simple ground that the appellant has no locus standi. However, the same was not done as the Court felt that as a Constitutional Court, it was the duty of the Court to lay down the law correctly so that similar mistakes are not committed in the future. Apart from the general power of the superior Court vested in it under Article 226 or Article 32 of the Constitution of India, the Supreme Court is bestowed with a greater responsibility by the maker of the Constitution in terms of Article 141 and 142 of the Constitution. Decisions are galore wherein, the Court unhesitatingly exercise such jurisdiction to resort to the creative interpretation to arrive at a just result in regard to the societal and/or public interest. 21. Coming to the facts of the present case, the learned counsels for the respondents are correct in saying that none of the petitioners were eligible to be considered for promotion to the post in question at the very inception of the writ petition. However, the same is not the case now since the petitioner No. 1 in particular, with the passage of 3 days from the date of filing of the writ petition has acquired the minimum length of service required in the feeder grade for being considered to the post. However, the same is not the case now since the petitioner No. 1 in particular, with the passage of 3 days from the date of filing of the writ petition has acquired the minimum length of service required in the feeder grade for being considered to the post. As for the remaining petitioners, they may not be eligible to be considered for promotion to the post in question but they belong to the lower echelons of the service and once the post in question is filled up by an office belonging to the general cadre of the service i.e., 3rd Schedule-A, they will be eligible to be considered for promotion in the resultant vacancies in the lower grades. Therefore, having regard to the issue involved, maintainability alone otherwise cannot be the deciding factor at this stage. As such, the issue of maintainability is decided in favour of the petitioners. 22. Coming to the merit of the case, as may be noticed, the issue to be decided is as to whether the restructuring of the cadre and encadrement of the post of Addl. Secretary (TPT) in the 3rd Schedule- A from 3rd Schedule-D in the manner it was done through Office Memorandum dated 01.11.2021 is sustainable in law. Further, whether the respondent No. 3 could have been regularized to the sanctioned post of Addl. Secretary pursuant to the restructuring of the cadre vide the impugned Notification. It may be seen that under the Rules of 1966, there was no post of Assistant Transport Officer and that the post of ATO, ACO and ARO were created with concurrence of the Finance Department on 10.07.1995 and the posts were classified as Class-II Gazetted and carrying identical pay scale and status. Accordingly, an Advertisement was issued on 20.12.1995 for filling up the post of ARO and ATO. The respondent No. 3 responded to the Advertisement and she was accordingly appointed to the post of ATO vide Notification dated 01.10.1996 in exercise of the powers conferred upon the Speaker of the Assembly vide Rule 9 (2) of the Rules of 1966. The Rules of 1966 came to be repealed by the Rules of 1999 which came into force with effect from 17.11.1999. The posts of ARO and ATO came to be mentioned for the first time in the Rules against the 3rd Schedule. The Rules of 1966 came to be repealed by the Rules of 1999 which came into force with effect from 17.11.1999. The posts of ARO and ATO came to be mentioned for the first time in the Rules against the 3rd Schedule. It may be seen that the post of ACO and ARO have been mentioned together in the 3rd Schedule while the post of ATO has been placed separately. In other words, the post of ACO and ATO admittedly had been placed in the general line wherein, the incumbents holding the said post can rise to the rank of Secretary by promotion. In so far as the post of ATO is concerned, there appears to be no further scope for promotion beyond ATO. 23. The Rules of 1999 came to be amended for the first time vide Notification dated 23.02.2005, which came into force with immediate effect. Under the said amendment, the post of ATO and also Deputy Transport Officer (DTO) had been categorized under 3rd Schedule – C whereas, the post of ACO and ARO have been placed against the 3rd Schedule-A, which appears to be the schedule for the general category. It may be further be noticed that the post of DTO, ATO have been placed in the same schedule along with posts such as, Librarian, Receptionist Senior Librarian, Senior Receptionist etc. One noticeable feature of the first amendment of the Rules is that the amendment has been made in exercise of powers conferred by Rule 21 of the Rules of 1999 upon the Speaker whereas, the Principal Rules i.e., the Rules of 1999 was framed in exercise of powers conferred by Clause (3) of Article 187 of the Constitution of India upon the Governor of the State. Subsequently, the Rules of 1999 was further amended vide Notification dated 21.308.2012 by the Speaker in exercise of the powers conferred by Rule 22 of the Rules of 1999 (residuary powers). The said amendment came into force with effect from the date of Notification i.e., 21.08.2012 and Rule 10(a) and Rule 10(b) came to be inserted. The same may be abstracted hereunder for ready perusal:- “Rule 10 (a) Consequent upon additional rules of recruitment and condition No. 10, Streamlining of the cadre, imperatively conditionalised to appoint fresh recruitment to the lower post of the same cadre. Through facilitating the incumbent to the higher relevant post. The same may be abstracted hereunder for ready perusal:- “Rule 10 (a) Consequent upon additional rules of recruitment and condition No. 10, Streamlining of the cadre, imperatively conditionalised to appoint fresh recruitment to the lower post of the same cadre. Through facilitating the incumbent to the higher relevant post. (b) Whereas, irrespective of the relativity of post, there shall be no inter transferability between the various schedules in the event of similar scale between the cadres.” 24. What can be seen from the above abstract is that as per Rule 10(b), irrespective of the relativity of the post, inter-transfer between the various schedules in the event of similar scale between the cadres is not permissible. With the insertion of this provision, the incumbents in the post of DTO or ATO or for that matter, Transport Officer (TO) having placed in 3rd Schedule-D cannot be considered for transfer and promotion against any of the post mentioned in the other Schedules and particularly, against 3rd Schedule-A for the purpose of the present case. What was relatively not clear and not certain in the Principal Rules of 1999 and the first Amendment in the year 2005 have been made clear by the second Amendment made in 2012. The respondent No. 3 as pointed out by the petitioners has been enjoying promotions from the post originally held by her as ATO after the same was upgraded to the post of TO and thereafter, with similar upgradation to Senior TO, Joint Secretary and Addl. Secretary. Such upgradation and promotion made in favour of the respondent No. 3 has however been made personal to her and the post is to be automatically reverted back to the original post once she vacates the said post. According to the petitioners, that is why they have not challenged the promotion of the respondent No. 3 as her promotion was personal to her. What has caused the dispute now is the issuance of the impugned Office Memorandum and the impugned Notification, regularizing the respondent No. 3 as Addl. Secretary against the sanction post of Addl. Secretary. 25. The Rules of 1999 was framed in exercise of the powers conferred by Clause (3) of Article 187 of the Constitution of India by the Governor of Nagaland in consultation with the Speaker of the Legislative Assembly. Rule 24 of the said Rules provides for repeal and saving. Secretary against the sanction post of Addl. Secretary. 25. The Rules of 1999 was framed in exercise of the powers conferred by Clause (3) of Article 187 of the Constitution of India by the Governor of Nagaland in consultation with the Speaker of the Legislative Assembly. Rule 24 of the said Rules provides for repeal and saving. It states that the Rules of 1966 has been repealed by the said Rules and that all the orders and actions taken prior to the enforcement of the Rules in respect of matter for which there was no specific provisions in the Rules shall be deemed to have been validly made or taken. Therefore, the services of the respondent No. 3 came to be governed by the Rules of 1999. Rule 10 of the Rules of 1999 states that the qualifications for recruitment and promotion to any post or clause shall be such as specified in the 3rd Schedule. Although, the Schedule does not provide for the categorization of the posts under the Assembly Secretariat but the post of ATO has been mentioned separately and that it is not a feeder post for promotion to any higher grade or post. As for the post of Assistant Superintendent/ATO/ARO, they are mentioned as the feeder post for promotion to the post of Superintendent/Committee Officer (CO)/Research Officer (RO) in the 3rd Schedule and further, the post of Superintendent/CO/RO has been provided as the feeder post for promotion to the post of Under Secretary. Therefore, there is clearly a distinction drawn between the post occupied by the respondent No. 3 at the relevant time i.e., ATO and the other posts in the general category such as, ACO, ARO or Assistant Superintendent. 26. The Rules of 1999 then came to be amended vide Notification dated 23.02.2055 and it was known as the 1st Amendment. The 1st Amendment came into force with immediate effect from the date of its notification. It may however be noticed that the 1st Amendment was made in exercise of the powers conferred by Rule 21 of the Rules of 1999 by the Speaker. Rule 21 is the residuary powers conferred upon the Speaker of the Assembly. It provides that all matters where incidental and auxiliary to the provision of Rules or otherwise shall be regulated in accordance with such orders as the Speaker from time to time make. Rule 21 is the residuary powers conferred upon the Speaker of the Assembly. It provides that all matters where incidental and auxiliary to the provision of Rules or otherwise shall be regulated in accordance with such orders as the Speaker from time to time make. From the language of the said provision, what can be understood is that matters which are incidental or auxiliary to the provision of Rules of 1999 can be regulated in accordance with the orders as the Speaker may make. The said provision otherwise does not confer powers upon the Speaker to amend the Rules framed under Clause (3) of Article 187 of the Constitution of India. All that the provision provides is residuary powers upon the Speaker. 27. It may further be seen that a 2nd Amendment to the Rules of 1999 was affected with the publication of the Notification dated 21.08.2012 and the same was made in exercise of the powers conferred by Rule 22 of the Rules of 1999 upon the Speaker which again is the residuary powers conferred upon the Speaker. With the insertion of the new rules at Rule 10 under the heading “Streamlining of existing cadre”, the residuary powers of the Speaker which was earlier provided under Rule 21 came to be shifted under Rule 22. Be that as it may, as already noticed herein above, the residuary powers conferred upon the Speaker by the Rules of 1999 cannot be construed as the power to amend the principal Rules which otherwise has been framed in exercise of the powers conferred by Clause (3) of Article 187 of the Constitution of India. Mr. Taka Masa, learned Senior Counsel for the respondent No. 3 has also argued that the 1st Amendment and 2nd Amendment of the Rules of 1999 cannot be sustained since the same was made in exercise of the residuary powers conferred upon the Speaker. 28. The learned Senior Counsel is correct in saying so but the fact remains that even under the principal Rules i.e., Rules of 1999, a distinction has been drawn on the post of ATO, Vehicle Inspector, Senior Grade Driver etc. which has no scope for promotion to the higher echelons of the service up to the rank of Secretary to the Legislative Assembly. which has no scope for promotion to the higher echelons of the service up to the rank of Secretary to the Legislative Assembly. Therefore, under the Rules of 1999, the respondent No. 3 having been appointed under the Transport Wing cannot come under the General Wing. Although argument has been made on behalf of the respondent No. 3 that she having been appointed under the erstwhile Rules of 1966, she has the vested right to be considered for promotion to the higher post such as the post of Addl. Secretary and that the Rules of 1999 cannot take away her vested right. However, the fact remains that the erstwhile Rules of 1966 has been repealed by the Rules of 1999. The Rules of 1999 as already stated herein above has placed the post of ATO and the feeder post to ATO separately but under the 3rd Schedule. It also provides that the post of ATO is not a feeder post for promotion in other higher grade. The Rules of 1999 has not been challenged by the respondent No. 3 and therefore, the claim for having her vested right to be promoted to higher post cannot be accepted and in fact, misconceived. 29. The impugned Office Memorandum dated 01.11.2021 (Annexure-D) restructuring the cadre of the upgraded post held by the respondent No. 3 i.e., Addl. Secretary (TPT) and encadrering the same from 3rd Schedule – D to 3rd Schedule – A has been done in exercise of the powers conferred upon the Speaker by Rule 19 and 22 of the Rules of 1999 as amended in 2012. Rule 19 provides for relaxation of the Rules in exceptional case while Rule 22 is the residuary powers. The Office Memorandum also provides that the same is also issued in exercise of the powers conferred by the proviso to Article 187 of the Constitution of India upon the Speaker of the State Assembly. For ready perusal, Article 187 of the Constitution of India may be abstracted hereunder:- “187. Secretariat of State Legislature.- (1) The House or each House of the Legislature of a State shall have a separate secretarial staff: Provided that nothing in this clause shall, in the case of the Legislature of a State having a Legislative Council, be construed as preventing the creation of posts common to both Houses of such Legislature. Secretariat of State Legislature.- (1) The House or each House of the Legislature of a State shall have a separate secretarial staff: Provided that nothing in this clause shall, in the case of the Legislature of a State having a Legislative Council, be construed as preventing the creation of posts common to both Houses of such Legislature. (2) The Legislature of a State may by law regulate the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the House or Houses of the Legislature of the State. (3) Until provision is made by the Legislature of the State under clause (2), the Governor may, after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the Assembly or the Council, and any rules so made shall have effect subject to the provisions of any law made under the said clause. 30. From the above abstract, it may be seen that Article 187(1) provides that the House or each House of the Legislature of a State shall have a separate secretarial staff and nothing in this clause shall, in the case of the Legislature of a State having a Legislative Council, be construed as preventing the creation of posts common to both Houses of such Legislature in case of a State Legislature having a Legislative Council. Article 187(2) provides that the Legislature of a State may by law regulate the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the House or Houses of the Legislature of the State. Article 187(3) provides that until provision is made by the Legislature of the State under clause (2), the Governor may, after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the Assembly or the Council, and any rules so made shall have effect subject to the provisions of any law made under the said clause. 31. 31. The Rules of 1999 was framed in exercise of the powers conferred under Clause (3) of Article 187 of the Constitution of India after it was laid before the State Assembly. As for the Office Memorandum dated 01.11.2021, the same does not indicate as to under which particular proviso has the powers been exercised by the Speaker. Moreover, the power to relax the rules from the language of the said provision has to be exercised only in exceptional cases when the Speaker is satisfied with the operation of any rule or provision in the matter of condition of service of an Officer or staff serving in the Assembly Secretariat has caused undue hardship in any particular case/cases and therefore, by an order dispense with or relax the requirements of rule or provision to such extend and subject to such conditions as may be considered necessary for dealing with the case in a just and equitable manner. 32. In the present case, the impugned Office Memorandum is not in respect of relaxation of rules or condition of service of the rules but a process of restructuring cadre by encadrering the post from a particular schedule to another schedule. Further, such exercise has to be done in a just and equitable manner which means that undue hardship should not be caused to other employees while relaxing certain provisions of the rules. As for Rule 22 of the Rules of 1999 as amended, it has already been held herein above that the residuary powers given to the Speaker does not include the powers to amend the rules and therefore, invoking the said rules to restructure the cadre of the posts under the Assembly Secretariat service cannot be sustained. As for Rule 22 of the Rules of 1999 as amended, it has already been held herein above that the residuary powers given to the Speaker does not include the powers to amend the rules and therefore, invoking the said rules to restructure the cadre of the posts under the Assembly Secretariat service cannot be sustained. To appreciate the contents of the Office Memoradum dated 01.11.2021, the same is abstracted hereunder:- “NAGALAND LEGISLATIVE ASSEMBLY SECRETARIAT KOHIMA NO:AS/ESTT/CRT/15/2021/ Dated Kohima, the 1st November, 2021 OFFICE MEMORANDUM In exercise of the powers conferred by the proviso of Article 187 of the Constitution of India and in accordance with the authority vested under Rules 19 & Rules 22 of the Nagaland Legislative Assembly Secretariat (Recruitment and Conditions of Service Rules) 1999 (2nd Amendment Rules 2012 Incorporated) the Speaker, Nagaland Legislative Assembly is pleased to restructure the Cadre of the Upgraded post held by Smt. K. Rio, Additional Secretary (TPT) vide this Secretariat Notification NO: AS/ESTT/9/2006/1372 dated 30/11/2019 and accordingly, decided to order for the encadrement of the upgraded Post of Additional Secretary (TPT) presently figuring in Third Schedule-D and placed in the Third Schedule-A of this Secretariat Service Rules, hereinafter called as the General Cadre, with immediate effect. Consequently, Smt. K. Rio, Additional Secretary, shall be accommodated against the substantive Post, subject to availability of vacant position in the same rank. She shall also be assigned/allocated with additional responsibilities as deemed required and necessary by the Administrative Authority. The Competent Authority had also decided that, in view of the above revised Cadre Restructure exercise, the Post of Transport Officer, substantively held by Smt. K. Rio, and currently figured in Third Schedule-D, shall be automatically placed at Third Schedule-A and the Post of T.O shall be filled up by the subordinate Officers in the next immediate lower rank enlisted under Third Schedule-A, through promotion after due scrutiny by the DPC. The category of Post, other than those mentioned/referred to this O.M, remains unaltered and shall continue to be categorized as per the existing Third Schedule-A to Third Schedule-H of this Secretariat Service Rules in force. The Notification of concomitant amendment in the Recruitment & Conditions of the Service Rules for the above Post will follow. The category of Post, other than those mentioned/referred to this O.M, remains unaltered and shall continue to be categorized as per the existing Third Schedule-A to Third Schedule-H of this Secretariat Service Rules in force. The Notification of concomitant amendment in the Recruitment & Conditions of the Service Rules for the above Post will follow. This issues with the direction of the Hon’ble Gauhati High Court, Kohima Bench, in the Case No. WP(C) 20/2021 dated 14/07/2021 and relying on the decision given by the then Hon’ble Speaker on 06.08.1996, where the nature of the Post was intricately defined as the General Cadre. Dr. P.J. ANTONY Commissioner & Secretary” 33. From the above abstract, it may also be seen that the upgraded post of Addl. Secretary (TPT) held by the respondent No. 3 has been restructured and encadred from 3rd Schedule – D to 3rd Schedule – A (General Cadre). With such encadrement, the post of Transport Officer has been brought over to the 3rd Schedule – A and that the same shall now be filled up by the Subordinate Officers in the next immediate lower rank enlisted under the 3rd Schedule-A by promotion through DPC. The Office Memorandum however does not specify as to what the next immediate lower rank to the post of Transport Officer is and importantly, what would be the post for promotion for those who were placed below the post of Transport Officer under the 3rd Schedule – D originally. Therefore, the impugned Office Memorandum appears to have been issued in haste and without considering all these aspects. It also appears to be only an attempt to accommodate the respondent No. 3 for her promotion and regularization as Addl. Secretary in the General cadre to the exclusion of all others eligible to be considered. 34. In the case of State of Manipur & Ors. Vs. Surjakumar Okram & Ors. (supra), the Apex Court held that an unconstitutional law, be it either due to lack of legislative competence or in violation of fundamental rights guaranteed under Part III of the Constitution of India, is void ab initio. In the case of Shanti Sports Club & Anr. Vs. Union of India & Ors. (supra), the Apex Court held that noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. In the case of Shanti Sports Club & Anr. Vs. Union of India & Ors. (supra), the Apex Court held that noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Article 77(1) and (2) or Article 166(1) and (2). 35. Therefore upon due consideration of the matter in its entirety, and the findings arrived at in the preceding paragraphs, it cannot be said that the rights of the respondent No. 3 has crystallized in any manner or that she has acquired a vested right under the Rules of 1966 or the Rules of 1999. Therefore, the case of Lekh Raj & Ors. (supra) and the case of J.S. Yadav (supra) are found to be not applicable to her case and moreover, the facts and circumstances involved are also not similar. In the result, the impugned Office Memorandum dated 01.11.2021 (Annexure-D) and the impugned Notification dated 01.11.2021 (Annexure-E) are found to be unsustainable and are hereby set aside. However, the same shall not debar the respondent authorities concerned from considering the restructuring of the various posts under the Assembly Secretariat, which should otherwise only be done in accordance with the relevant provisions of law and by taking into consideration the rights and interest of all stakeholders. 36. With the above observations and directions, the writ petition stands disposed of.