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2022 DIGILAW 879 (GAU)

Sashinaro Kohima v. State of Nagaland

2022-08-11

DEVASHIS BARUAH

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JUDGMENT : Heard Mr. Imti Longchar, the learned counsel for all the three writ petitioners and Mr. Pfosekho Pfotte, the learned counsel appearing on behalf of the respondent Nos. 7 to 17 and 41 to 43. Also heard Ms. V. Suokhrie, the learned Additional Senior Government Advocate, Nagaland. 2. As the three writ petitions in question arise out of common facts and common questions of law are involved, all the three writ petitions are disposed of by the common judgment and order. 3. The facts of the instant there cases are that the Government of Nagaland under the Scheme of Re-Organization of State Special Branch by Office Letter No.POL-1/ESTT/54/93(1) dated 15.09.1997 written by the Secretary to the Government of Nagaland, Kohima, Home Department created and sanctioned a total of 264 posts including 16 posts of Assistant Sub-Inspectors (ASI) (Women). For the purpose of recruitment to the post of ASI, the compulsory educational qualification was graduate. 4. Vide Office Order No.PHQ(B-I)ADV/IGP/(INT)97 dated 03.12.1998 issued by the Director General of Police, Nagaland, Kohima on the recommendation of the Selection Board, 9 graduate ASI (Female) were directly recruited/appointed against the existing vacancy of IGP(INT) establishment. The petitioner in WP(C) No.84(K)/2016 was at Sl. No.3. The petitioner in WP(C) No.85(K)2016 was at Sl. No.4 and the petitioner in WP(C) No.86(K)/2016 was at Sl. No.5 in the said order dated 03.12.1998. 5. Subsequent thereto, vide an order No. PHQ(B-II)2/10/90 CPT/98, passed by the Inspector General of Police (Headquarter), Nagaland, Kohima 8 Constables( Women Police) were promoted to the rank of ASI (Women Police) against the newly created sanctioned post. The direct recruits who were appointed on the basis of the order dated 03.12.1998 submitted a representation against the tentative seniority list demanding for ranking en-masse above those promoted on 16.12.1998. However, the said representation was rejected on the ground that tentative seniority list was to be published as per the provisions of the Office Memorandum No.11/APA/1/66 dated 09.06.1996. At this stage it may be relevant to refer to Clause 4 of he said Memorandum dated 09.06.1966 which relates to ‘Relative Seniority of Promotees and Direct recruits’. In the explanation to Clause 4, it was mentioned that where the reservation for each source is 50% the order of seniority shall be (i) promotee (ii) direct recruitment and so on. At this stage it may be relevant to refer to Clause 4 of he said Memorandum dated 09.06.1966 which relates to ‘Relative Seniority of Promotees and Direct recruits’. In the explanation to Clause 4, it was mentioned that where the reservation for each source is 50% the order of seniority shall be (i) promotee (ii) direct recruitment and so on. It was also mentioned that where 75% vacancies are reserved for promotees and 25% for direct recruitment, each direct recruit shall rank in seniority below three promotees. It was also mentioned that if for any reasons, a direct recruit or a promote ceases to hold the appointment in grade, the seniority shall not be re-arranged merely for the purpose of ensuring the proportion referred to herein above. 6. By an Office Memorandum bearing No.PHQ(B-II)2/10/90(PT) dated 28.09.2007, the Director General of Police, published the final Seniority List of ASI (Women Police) where the petitioner in WP(C) No.84(K)/2016 was at Serial No. 6. The petitioner in WP(C) 85(K)/2016 was at Sl. No.8 and the petitioner in WP(C) No.86(K)/2016 was at Sl. No.10. 7. Subsequent thereto, the Home Commissioner vide communication bearing No.POL-1/ESTT/507/99 dated 02.11.2007 wrote to the Accountant General, Nagaland, Kohima conveying sanction of the Governor of Nagaland for creation of 99 posts of Women Police against the Police Stations in each district of Nagaland. Consequently, in view of the said communication for each of the 11 districts in Nagaland, one Women Police Sub-Inspector posts was created. In other words, there was an addition of 11 posts of Sub-Inspector for Women Police. 8. Subsequent thereto, on 22.01.2008 vide an Office Order bearing No.PHQ(B-I)I/II/2002 the Director General of Police, Nagaland, Kohima directly recruited 11 Unarmed Branch Sub-Inspectors (Female). In doing so however the explanation in Clause 4 of the Memorandum dated 09.06.1996 was admittedly not followed. Be that as it may, the Petitioners herein sat over the matter and did not challenge the said transgression then or even immediately after they were qualified to be considered for promotion. 9. By an Office order No.IGP.INT/IX-47-2007-08 dated 05.02.2008, issued by the Inspector General of Police (INT), Nagaland, Kohima, the petitioners along with 7 other ASI (Women Police) were sent for CPT (Central Promotion Test) to be held on 11.02.2008 at Nagaland Armed Police Training Centre (NAPTC), Chumukedima. 9. By an Office order No.IGP.INT/IX-47-2007-08 dated 05.02.2008, issued by the Inspector General of Police (INT), Nagaland, Kohima, the petitioners along with 7 other ASI (Women Police) were sent for CPT (Central Promotion Test) to be held on 11.02.2008 at Nagaland Armed Police Training Centre (NAPTC), Chumukedima. In pursuance of the said order dated 05.02.2008, the petitioners herein along with 7 others were released w.e.f. 08.02.2008 (forenoon) to enable them to report to Commandant NAPTC for CPT scheduled to commence on 11.02.2008. 10. On 31st March, 2008, two orders were passed by the Director General of Police, Nagaland. The first order bearing No.PHQ(B-II)2/1090 (CPT)/1756 dated 31.03.2008 whereby the 3 ASIs (Women Police) were promoted to the rank of Unarmed Branch Sub-Inspector (Women Police). Vide the other order No.PHQ(B-II)2/10/90 (CPT), the remaining 7 ASIs (Women Police) including the petitioners were declared to have passed and were kept in the Fit list for promotion to the rank of UBSI (Women Police). It was mentioned that the list was prepared as per seniority-cum-merit from among the qualified ASI (Women Police) and promotion will be given effect as and when vacancy comes up subject to good ACRs for the preceding 5 years. 11. Subsequent thereto, vide order dated 24.10.2008 and 1st April, 2011, the persons mentioned in Sl Nos.1 & 2 of the order dated 31.03.2008, i.e. the Fit list for promotion to the rank of UBSI (Women Police) were promoted to the rank of Sub-Inspector (Women Police). 12. In the meantime on 30th September, 2009, the Inspector General of Police (Headquarters), Kohima issued a Memorandum of the tentative seniority list of AB Sub-Inspector, UB Sub-Inspector and Asstt. Sub-Inspector of Nagaland Police Department. In the said tentative seniority list, it would be seen that the petitioner in WP(C) No.84(K)/2016 and the petitioner in WP(C) No.86(K)/2016 were put at Sl. No.48 & 50 respectively and the petitioner in WP(C) No.85(K)/2016 was nowhere in the said list. It would be relevant to take note of from a perusal of the said tentative seniority list that it was a seniority list of both male and female police personnel. 13. Subsequent thereto, the Governor of Nagaland issued a Memorandum on 09.03.2010. The contents of the said Memorandum are relevant in as much as per the respondents, the same forms the basis of the impugned action of the respondents challenged in the instant writ petitions. 13. Subsequent thereto, the Governor of Nagaland issued a Memorandum on 09.03.2010. The contents of the said Memorandum are relevant in as much as per the respondents, the same forms the basis of the impugned action of the respondents challenged in the instant writ petitions. From a perusal of the said Memorandum dated 09.03.2010, it reveals that the said Memorandum was issued regarding the determination of inter-se seniority in the rank of Sub-Inspectors and Inspectors. It was mentioned that the matter relating to fixation of seniority of officers in the grade of Inspector of Police has been an issue for long and in fact there has been several litigations involving the issue in the Court. The Department in order to settle the matter had placed the matter before the Cabinet but the Cabinet referred the matter back to the Department to decide according to the Rules. However, upon examination, it was found that there were no Rules to govern the seniority of officers in the grade of Inspector of Police/Sub-Inspector of Police in Nagaland, and hence, it became necessary to lay down the principle of seniority at the Executive Level. It would also be seen from the said Memorandum that the Government of Nagaland had constituted a Review Committee vide order dated 02.08.2004 to examine the matter relating to review of the Fit list and the proposals for promotion to the grade of Inspectors made to the Government on the basis of the Fit List, following the preparation of a Fit list by the Central Promotion Test Board, in order of merit which led to wide spread discontent as the older officers who had served for long could not compete with the younger officers who were not only junior in age but also junior in terms of seniority in service and as such if the promotion were to be given on the basis of the Fit List prepared on the basis of merit, the senior officers would stagnate in the same grade while the junior officers would be sitting over them. It was also mentioned that the Fit list is a list of officers who meet the minimum standard of fitness and are fit for promotion and as such the comparative merit was relevant. It was also mentioned that the Fit list is a list of officers who meet the minimum standard of fitness and are fit for promotion and as such the comparative merit was relevant. Under such circumstances, the Review Committee so constituted, on due consideration of these aspects submitted a report recommending (a) that the officers in the grade of Sub-Inspector whose names were in the fit list but were not promoted while the junior officers whose names were above their names in the fit list were promoted should be promoted with retrospective effect by creating supernumerary posts, (b) that, seniority in the grade of UBI should be maintained as it appears in the revised fit list (which list was prepared in terms of seniority of the fit officers and not on the basis of merit) and (c) that the supernumerary post of Inspector should continue till all the UBSIs who are promoted to supernumerary posts are adjusted against sanctioned posts of UBI in course of time. It was further mentioned that the said recommendations of the Committee had received the approval from this Court in WP(C) No.5(K)/2005. 14. Subsequent thereto, another Memorandum dated 17/8/2010 was issued. The said Memorandum was in respect to a tentative seniority list of ASI as on 30.06.2010. It would show that it was a mixture of both male and female police personnel of Nagaland Police. The petitioners herein were further pushed down to Sl. Nos.99, 101 & 103 respectively. 15. Subsequent thereto vide an order dated 15.09.2010 issued by the Director General of Police, Nagaland, 11 (eleven) Asstt. Sub-Inspectors who were kept in the fit list dated 03.12.2009 were promoted to the rank of UB Sub-Inspector. It may be relevant herein to mention that those 11 (eleven) Asstt. Sub-Inspectors were in the fit list dated 03.12.2009. 16. Subsequent thereto, vide another order dated 14.04.2011, 13 (thirteen) Asstt. Sub-Inspectors who were in the fit list dated 03.12.2009 were also promoted to the rank of UBSIs. It is also not known under what basis the tentative seniority list was prepared vide Memorandum dated 30.09.2009 and 17.08.2010 which was a mixture of both male and female police personnel although prior thereto both the male and the female police personnel had their separate seniority list. It is also not known under what basis the tentative seniority list was prepared vide Memorandum dated 30.09.2009 and 17.08.2010 which was a mixture of both male and female police personnel although prior thereto both the male and the female police personnel had their separate seniority list. The promotions which have been mentioned herein above were done on 15.09.2010 and 11.04.2011 was also on the basis of the said tentative seniority list based upon the fit list dated 03.12.2009, although there was no decision of the Government to en-cadre the seniority list of the male and female police personnel till then. Relevant herein to mention that the Petitioners then also did not challenge the tentative seniority lists published vide Memorandum dated 30/9/2009 and 17/8/2010, although the tentative seniority lists so published were a combined seniority list of both male and female ASI’s and the Petitioners were pushed down the list. At this stage, it is relevant to note that the Petitioners were included in the Fit List dated 31/3/2008. This action was again not challenged then. 17. It was only on 17.06.2011 that a notification was issued bearing No.POL-1/ESTT/14/2010 dated 17.06.2011 whereby on the approval of the cabinet vide No.CAB-2/2008/(Pt) dated 31.05.2011 the Governor of Nagaland was pleased to en-cadre all posts of Un-Armed Branch Inspector (Women Police) with the General Un-Armed Branch Inspector (Male) so that a common channel by promotion for both male and women police are maintained. Therefore, it would be seen that it was only after the said notification dated 17.06.2011 there was en-cadrement of all posts of Un-Armed Branch Inspector (Women Police) with the General Un-Armed Branch Inspector (Male). 18. Subsequent to the said notification dated 17.06.2011, there was a meeting of the Senior Police Officers in connection with en-cadrement of Women Police Sub-Inspectors and Assistant Sub-Inspectors on 28.06.2011 in the Office Chamber of DGP, Nagaland. In the said meeting, the following was unanimously decided - (i) As in the case of UBI posts above, only one common seniority list shall be maintained in the rank of UBSI and ASI rank for both women and male officers for all future promotions. This list will be maintained strictly on seniority basis which will be as per entry to service of the individual. (ii) The existing sanctioned posts of Women Police for UBSI and ASI will remain the same for purpose of recruitment. This list will be maintained strictly on seniority basis which will be as per entry to service of the individual. (ii) The existing sanctioned posts of Women Police for UBSI and ASI will remain the same for purpose of recruitment. However, once recruitment is made against the said quota, the common seniority list will be followed. (iii) The date of appointment/promotion will form the basis for fixation of seniority in the common list. 19. From the minutes of the meeting dated 02.07.2011 it would be seen that for the first time there was a decision being taken that there would be one seniority list maintained in the rank of UBSI and ASI rank for both female and male officers for all future promotions and the said list will be maintained strictly on seniority basis which will be as per the entry to the service of the individual. These very minutes have been impugned in the instant proceedings. 20. Subsequent thereto, an Office Memorandum was issued by the Director General of Police, Nagaland on 05.07.2011 with the following instructions:- 1. There will be a common seniority list maintained for Male and Female ABSI/UBSI and ASI. 2. Separate seniority for the Armed Branch and Unarmed Branch shall continue. 3. ASI (Women Police) who were kept on the Fit List but not promoted vide Order No.PHQ(B-II)2/10/90(CPT) dated 31st March, 2008 will now be given promotion in their own turn as per the common seniority list. 4. The common seniority list is for the purpose of promotion only so that an individual is promoted to the next higher rank as per his/her seniority. 5. Concerned Branch will prepare the tentative seniority list and circulate to all the Units at the earliest. This Office memorandum has also been impugned in the instant proceedings. 21. Subsequent to the said Office Memorandum dated 05.07.2011, a revised tentative seniority list was published on the basis of a Memorandum dated 15.07.2011 thereby superseding the tentative seniority lists dated 13.09.2009 and 17.08.2010. On the basis of the said seniority list so prepared, the petitioners herein were further pushed done to Sl. Nos.103, 104 & 105 vide a notification dated 21.09.2011; 15 (fifteen) Unarmed Branch Sub-Inspectors were promoted to the Unarmed Branch of Inspectors. On the basis of the said seniority list so prepared, the petitioners herein were further pushed done to Sl. Nos.103, 104 & 105 vide a notification dated 21.09.2011; 15 (fifteen) Unarmed Branch Sub-Inspectors were promoted to the Unarmed Branch of Inspectors. It appears from the record that the petitioners submitted individual representations to the Director General of Police, Nagaland, Kohima on 14.10.2011 ventilating their grievances for not being granted promotion. There was no response to the said representations. However, on 29.11.2011, an order was issued by the Director General of Police whereby three persons were appointed as direct recruits to the post of Unarmed Branch Sub-Inspectors against the existing vacancies. At this juncture, it is relevant to take note that vide a Memorandum dated 20/12/2011, the Director General of Police published the final seniority list of UBSI and ASI upto 31/12/2009. The Petitioners were at Serial Nos.101,102 and 103 of the final seniority list. Though the representations dated 14/10/2011 submitted by the Petitioners remained unanswered and the Respondent Authorities continued to proceed in terms with the Memorandum dated 5/7/2011, the Petitioners sat over the matter and did not approach this Court. 22. The record further reveals that on 4th of October, 2013, the Director General of Police, Nagaland issued an order whereby on the basis of the Central Promotion Test of ASIs conducted on 25.09.2012 and 26.09.2012 recommendations were made to the Board that the ASIs mentioned therein were declared passed in the Central Promotion Test and they were to be kept in the fit list for promotion to the next higher rank of UBSI. The petitioners’ names duly figured in the said list at Sl. Nos.43, 44 & 45 and shown as exempted. It was also mentioned in the said order that the ASIs in the fit list would be given promotion as per the above sequence arranged in the order of seniority-cum-merit to the rank of UBSIs against the vacancies as and when vacancy arises subject to clear Annual Confidential Report for the preceding 5 years. 23. Subsequent thereto, vide an order dated 09.10.2013, thirteen more ASIs who were kept in the fit list dated 05.10.2013 were promoted to the rank of UBSIs. The petitioners, being aggrieved, again submitted representation to the Director General of Police on 26.10.2013. 23. Subsequent thereto, vide an order dated 09.10.2013, thirteen more ASIs who were kept in the fit list dated 05.10.2013 were promoted to the rank of UBSIs. The petitioners, being aggrieved, again submitted representation to the Director General of Police on 26.10.2013. The said representation was forwarded to the Inspector General of Police (INT) and the Inspector General of Police (Crime) by the Deputy Inspector General of Police (Headquarter) vide communication dated 16.11.2013. In the said communication, it was mentioned that the decision taken by the Police Headquarter in regard to en-cadre of post and maintenance of common seniority list for male and female UBSI/ABSI/ASI for the purpose of promotion cannot be undone/reviewed now. It was also mentioned that the petitioners be informed, if the officers are not satisfied they are given the liberty to seek justice in the Court of Law as sought. Pursuant thereto, the petitioners herein filed three writ petitions separately, i.e. WP(C) 9(K) 2014, WP(C) No.10 (K) 2014 and WP(C) No.11(K)2014. The said writ petitions were duly admitted by this Court and an order was passed that any appointment made to the posts of UBSIs by the respondent shall be subject to the outcome of the writ petitions. 24. Subsequent thereto, on 30.03.2015 another ten ASIs who were kept in the fit list dated 05.10.2013 were promoted to the post of UBSI. The petitioners thereafter withdrew the said writ petitions, i.e. WP(C) 9(K) 2014, WP(C) No.10 (K) 2014 and WP(C) No.11(K)2014 with liberty to file afresh. Vide an order dated 10.02.2016, the said writ petitions were permitted to be withdrawn with a liberty to file afresh. It is under such circumstances, the present three writ petitions were filed challenging the office order dated 22.01.2008, Office Memorandum dated 30.09.2009, Office Memorandum dated 17.08.2010, Office order dated 15.09.2010, Office Order dated 14.04.2011, minutes of the meeting dated 02.07.2011, Office Memorandum dated 05.07.2011, Office Memorandum dated 15.07.2011, Office Order dated 29.11.2011, Office Order dated 04.10.2013, Office Order dated 09.10.2013, Office Letter dated 16.11.2013 and Office order dated 30.03.2015. Further to that the petitioners also prayed that the petitioners be promoted to the rank of UBSIs (WP) with retrospective effect as per CPT fit list dated 31.03.2008 with all benefits. 25. Further to that the petitioners also prayed that the petitioners be promoted to the rank of UBSIs (WP) with retrospective effect as per CPT fit list dated 31.03.2008 with all benefits. 25. All the three writ petitions upon being filed, this Court issued notice vide the order dated 01.06.2016 and further directed the respondents not to make any further promotion to the post of ASI without the leave of the Court till the next date. It is relevant to take note that applications were filed in all the three writ petitions for vacating the order dated 01.06.2016. This Court vide order dated 09.11.2016 modified the interim order to the extent that the respondents are free to give promotion to 11 persons including the writ petitioners who have been found fit for promotion to SI/UBSI on officiating basis subject to the outcome of the writ petitions. Subsequent thereto, on the basis of separate Interlocutory Applications filed before this Court in the three writ petitions, this Court vide orders dated 08.12.2016 again allowed the State respondents to proceed with the promotion of 11 (eleven) persons to the posts of SI/UBSI strictly within the parameter of the order dated 09.11.2016. 26. The State respondent Nos.1 to 6 filed a joint affidavit-in-opposition. In the said affidavit-in-opposition, it was mentioned that there was no statutory rules for regulating recruitment and other conditions of service of ASI/UBSI/ABSI and recruitment to these posts is done as per the notification AR-8/26/81/(Pt) dated 24.09.2004 issued by the Government of Nagaland whereby the power of recruitment of UBSI/ABSI in the Nagaland is delegated to the Director General of Police. It was mentioned that the Office Memorandum dated 09.03.2010 issued by the Government of Nagaland, Home Department, Police Establishment Branch where it was ordered that the seniority of Inspector of Police shall be determined on the basis of Sub-Inspector of Police and the principle of seniority shall apply to all cases of promotion to the grade of Inspector whether prior or subsequent to the revision of the fit list by the Review Committee. It was also mentioned that the Memorandum dated 09.03.2010 was issued after minutely examining the wide discontentment of senior officers against the Central Promotion Test based on merit. It was also mentioned that the Memorandum dated 09.03.2010 was issued after minutely examining the wide discontentment of senior officers against the Central Promotion Test based on merit. Subsequent to the issuance of the Memorandum dated 09.03.2010, the Government vide notification dated 17.06.2011 by which all posts of Unarmed Branch Inspector (Women Police) were en-cadred with the General Unarmed Branch Inspector (Male) for maintaining a common channel of promotion to the next higher post. Further to that, it was mentioned that in tune with the Memorandum dated 09.03.2010 and the notification dated 17.06.2011, the Director General of Police, Nagaland convened a meeting of PHQ Senior Officers on 28.06.2011 and took a conscious decision for maintaining a common seniority list for both male and female officers in the rank of UBSI and ASI as per the entry in the service without disturbing the existing sanctioned post for recruitment of female UBSI and ABSI. Subsequent to the said minutes, the Office Memorandum dated 05.07.2011 was issued. On the basis of the said Office Memorandum dated 05.07.2011 a revised common tentative seniority list of UBSI/ASI superseding the tentative seniority list dated 13.09.2009 and 17.08.2010 was issued . It was thereafter that the common final seniority list of UBSI/ASI as on 31.12.2009 was issued vide Memorandum dated 20.12.2011 after examining all claims and objections. 27. In paragraph No.10 of the said affidavit-in-opposition, it was mentioned that there are no statutory rules for regulating recruitment and other conditions of service of ASI/UBSI/ABSI and recruitment to these posts is done as per notification No.AR-8/26/81/(Pt) dated 24.09.2004 issued by the Government whereby the power of recruitment of UBSI/ASI/ABSI in the Nagaland Police is delegated to the Director General of Police. Further to that, it was mentioned that when the Government has taken a decision that the seniority of the Inspector of Police shall be determined on the basis of seniority in the grade of Sub-Inspector of Police in accordance with the principle of seniority and had en-cadred all posts of Unarmed Branch Inspector (Women Police) with the General Unarmed Inspector (male) for maintaining Common Cell of promotion for both male and female posts, it was within the competence of the Director General of Police to maintain the same uniformity in the lower hierarchy of the post of UBSI/ABSI/ASI. 28. 28. In paragraph Nos.19 & 21 it has been mentioned that the decision of the Government to have a common seniority list of male and female officers in UBSI/ASI was way back in the Office Memorandum dated 05.07.2011 and the same was circulated to all concerned. However, the petitioners chose to sit over the matter and approached the Court only some time in the later part of January, 2014 by filing the writ petitions which was however withdrawn vide the order dated 10.02.2016. It was further mentioned that in the instant writ petitions also there was no explanation whatsoever as to why there was a delay in challenging the Office Memorandum dated 05.07.2011. It was also mentioned that the tentative seniority list published by the Department vide Memorandums dated 30.09.2009, 17.08.2010 and 15.07.2011 though had been challenged by the writ petitioners but the petitioners have not challenged the Memorandum dated 20..12.2011 wherein the common final seniority list of UBSI and ASI was published and in absence of any challenge to the Memorandum dated 20.12.2011, the petitioners do not have the legal rights to challenge the promotion of the senior ASIs to UBSIs which have been affected by the impugned orders. It was mentioned in the affidavit-in-opposition that placing the petitioners in the Fit List for promotion do not give the petitioners an indefensible right to be promoted ahead of the senior ASIs, more particularly, when the Government/Department have introduced seniority as per the criteria for promotion under which the seniors are first eligible to be considered for promotion to the vacant posts provided they qualified after crossing the Bench Mark of the CPT examination. 29. It was further mentioned that the seniority as criteria for promotion has only affected the chances of promotion of the petitioner but had not altogether left out the petitioner from being considered for promotion as and when their turn comes and under such circumstances, no legal grievances are therefore made out by the petitioners on the ground that they were denied promotion despite first qualifying the CPT than the senior promotees. On the basis thereof, the Respondent Nos. 1 to 6 sought for dismissal of the writ petitions. 30. The Respondent Nos. 7 to 17 filed an affidavit-in-opposition stating inter alia that they are all Graduates and qualified in terms with the Office Letter No. POL-1/ESTT/54/93(1) dated 15/9/1997. On the basis thereof, the Respondent Nos. 1 to 6 sought for dismissal of the writ petitions. 30. The Respondent Nos. 7 to 17 filed an affidavit-in-opposition stating inter alia that they are all Graduates and qualified in terms with the Office Letter No. POL-1/ESTT/54/93(1) dated 15/9/1997. It was further mentioned that the said Respondents have undergone the entire stage of valid selection process on merit and as such, the petitioners cannot find faults against the said Respondents. The Respondent Nos. 41 to 43 also filed an affidavit-in-opposition in similar lines to the affidavit-in-opposition filed by the Respondent Nos. 7 to 17. 31. The Petitioners filed a common affidavit-in-reply to the affidavit-in-opposition filed by the Respondent Nos. 1 to 6, 7 to 17 and 41 to 43. It was stated that the paragraph Nos.6 and 9 of the affidavit in opposition of the Respondent Nos. 1 to 6 were misconceived and misleading inasmuch as the Government of Nagaland, Home Department, Office Memorandum dated 9/6/1966 was very much in existence which clearly mentioned that the post of UBSI(Women Police) should be filled up on the basis of 50:50 by promotion and direct recruit. It was further stated that the Government had created and sanctioned the post of ASI’s (Women Police), UBSI’s(Women Police) and hence en-cadrement of Women Police with that of the General/Male police personnel was totally illegal. Furthermore, the principle is clear that those who were kept in the CPT Fit List should be promoted first than the personnel who passed subsequent CPT/selection. 32. It also appears from the record that the Petitioners have filed an additional affidavit wherein it was mentioned that in the Nagaland Police Department, there was no Service Rules framed under the proviso to Article 309 of the Constitution of India governing the service conditions of non-Gazetted Officers. The service conditions of non-Gazzetted Officer in the Department are governed by the Assam Police Manual which had been adopted by the Department. Rule 40 of the Assam Police Manual was referred to. 33. I have heard the learned counsel for the parties and perused the materials on record. 34. The Petitioners herein have specifically challenged the minutes of the meeting dated 2/7/2011 as well as the Memorandum dated 5/7/2011, challenging the authority of the Director General of Police, Nagaland to maintain a common seniority list for male and female ABSI, UBSI and ASI. I have heard the learned counsel for the parties and perused the materials on record. 34. The Petitioners herein have specifically challenged the minutes of the meeting dated 2/7/2011 as well as the Memorandum dated 5/7/2011, challenging the authority of the Director General of Police, Nagaland to maintain a common seniority list for male and female ABSI, UBSI and ASI. This issue is pivotal inasmuch as it is because of the maintaining of the common seniority list, the Petitioners who were at Serial Nos. 6, 8, and 10 in the final seniority list dated 28th September, 2007 had been pushed back to Serial No. 103, 104 and 105 in the tentative seniority list dated 15/7/2011 and Serial Nos. 101, 102 and 103 in the final Seniority List of ASI’s upto 31/12/2009. 35. It appears from the records that the tentative seniority list so prepared on the basis of the Office Memorandum dated 30/7/2009 for both male and female police personnel of ASI vide the Office Memorandums dated 30/9/2009 and 17/08/2010 were being made, the Respondent Authorities have not been able to show under what power or authority the same was done. Subsequent thereto, on 17th June, 2021 on the basis of the approval of the Cabinet, a notification was issued showing inter alia that the Governor of Nagaland was pleased to encadre all posts of Unarmed Branch Inspector Women Police with the General Unarmed Branch Inspector Male so that a common channel by promotion for both men and women police are maintained. This notification however has not been put to challenge by the Petitioners acknowledging the fact that the State of Nagaland being the employer would have the jurisdiction and authority to merge different cadres on the basis of administrative exigencies and convenience. 36. It however appears that basing upon the Notification dated 17/6/2011 in the minutes of a meeting of PHQ Senior Officers, it was decided that one common seniority list shall be maintained in the rank of UBSI and ASI rank for both women and male police officer for all future promotions. This decision so taken in the minutes of the meeting held on 2/7/2011 was brought into effect by an Office Memorandum dated 5/7/2011 issued by the Director General of Police, Nagaland, Kohima whereby instructions were issued that there shall be a common seniority list maintained for Male and Female ABSI/UBSI/ASI. This decision so taken in the minutes of the meeting held on 2/7/2011 was brought into effect by an Office Memorandum dated 5/7/2011 issued by the Director General of Police, Nagaland, Kohima whereby instructions were issued that there shall be a common seniority list maintained for Male and Female ABSI/UBSI/ASI. It was also mentioned therein that the ASI(Women Police), who were kept in the Fit List but not promoted vide Order No. PHQ/B-II)/2/10/90 (CPT) dated 31/3/2008 would now be given promotion at their own turn as per the common seniority list. It is on the basis of the said Office Memorandum dated 5/7/2011, the Memorandum dated 15/7/2011 was issued whereby a revised tentative seniority list of ASI was prepared upto 30/6/2010 batch and the Petitioners’ rank as regards the seniority was pushed back to Serial Nos. 103, 104 and 105. It is also on the basis of the Memorandum dated 20/12/2011 that the final seniority list was prepared upto 31/12/2009 37. As already stated hereinabove, the Respondent State have not shown any authority on the basis of which the Office Memorandum dated 30/9/2009 and 17/8/2010 were issued thereby publishing the tentative seniority list of combined Male and Female Officers of the Nagaland Police. However, the Office Memorandum dated 15/7/2011 as well as the subsequent Memorandum dated 20/12/2011, whereby the tentative seniority list and the final seniority list were published, have been said to have been done by the Director General of Police on the basis of the delegation of authority issued by the notification dated 24/9/2004. As the said notification has spinal significance to the dispute herein, the said notification is quoted herein below :- 24th September, 2004 No. AR-8/26/81(Pt): In relaxation of Regulation 3(a)(i) of the Nagaland Public Service Commission (Limitation of Function) (Third Amendment) Regulations, 2001, notified vide this Department’s Notification No.PAR- 5/1/84 dated 23.04.2001, the Governor of Nagaland is pleased to delegate to the Director General of Police, the power of recruitment of UBSI/ABSI in the Nagaland Police under the Police Department with immediate effect. The Director General of Police will conduct the recruitment through a Selection Committee, consisting of representatives of Home and P&AR Department. 38. From the above quoted notification, it would transpire that the Governor of Nagaland had delegated to the Director General of Police, the power of recruitment of ABSI/UBSI in the Nagaland Police under the Police Department with immediate effect. The Director General of Police will conduct the recruitment through a Selection Committee, consisting of representatives of Home and P&AR Department. 38. From the above quoted notification, it would transpire that the Governor of Nagaland had delegated to the Director General of Police, the power of recruitment of ABSI/UBSI in the Nagaland Police under the Police Department with immediate effect. It is only on the basis of such notification the Respondent Authorities claim that the Director General of Police have the authority to merge the seniority list of the Male and the Female Cadre of the ABSI, UBSI and the ASI, although on the face of it, the said notification does not say anything about the ASI. Now the question therefore, arises as to whether the said power of recruitment of UBSI/ABSI of Nagaland Police would extend to merging the seniority list of Male and Female cadre of ABSI/UBSI as well as the ASI. Relevant at this stage also to take note of that it is the Secretary to the Government of Nagaland, Home Department, who had intimated the Director General of Police, Nagaland, Kohima vide Annexure-1 to the Writ Petitions of re-organization of State Special Branch and it was the Home Commissioner, Government of Nagaland, Home Department who conveyed the sanction of the Government of Nagaland in creation of 99 posts of Women Police vide Annexure-6 to the writ petitions. 39. In the backdrop of the above, let this Court therefore take into account what is meant by the power of recruitment. The word “recruitment” as defined in the shorter Oxford Dictionary Vol. II 1978 Edition means “in reinforcement, the act and process of recruiting.” In Oxford Advanced Learner Dictionary, 8th Edition the term “recruit” means to find new people to join a Company, an Organisation, the armed forces etc. 40. The Supreme Court in the case of Prafulla Kr. Swain Vs. Prakash Chandra Mishra and Anr. reported in (1993) Supp.(3) SCC 181 dealt with the meaning and effect of the terms “recruitment” and “appointment”. The Supreme Court observed that the term “recruitment” connotes and clearly signifies enlistment, acceptance, selection or approval for appointment. It was further observed that the term “recruitment” would not include actual appointment or posting in service. The Supreme Court further observed that in contradistinction the word “appointment” means an actual act of posting a person to a particular post. The Supreme Court observed that the term “recruitment” connotes and clearly signifies enlistment, acceptance, selection or approval for appointment. It was further observed that the term “recruitment” would not include actual appointment or posting in service. The Supreme Court further observed that in contradistinction the word “appointment” means an actual act of posting a person to a particular post. Further to that, the Supreme Court also observed that recruitment is just an initial process that may lead to eventual appointment in service but that cannot tantamount to appointment. Paragraphs Nos. 29 and 30 of the said judgment being relevant are quoted herein below : - “29. At this stage, we will proceed to decide as to the meaning and effect of the words “recruitment” and “appointment”. The term “recruitment” connotes and clearly signifies enlistment, acceptance, selection or approval for appointment. Certainly, this is not actual appointment or posting in service. In contradistinction the word “appointment” means an actual act of posting a person to a particular office. 30. Recruitment is just an initial process. That may lead to eventual appointment in the service. But, that cannot tantamount to an appointment. No doubt, Rule 5 talks of recruitment to Class II Service. We consider these are two sources of recruitment. Nowhere in the Recruitment Rules of 1959 it is specified that the services of a direct recruit under the Government shall be reckoned from the date of selection in the competitive examination. On the contrary, Regulation 12(c) is very clear that the period of training is not to be reckoned as Government service. It is admitted before us that after the successful completion of training when the appointment order is issued the direct recruits are put on probation. Similar is in the case of the promotees. Both of them undergo probation. Therefore, in the light of these provisions it is not possible for us to accept the contention advanced on behalf of the direct recruits that their seniority must be reckoned from the date of their recruitment.” 41. In the backdrop of the above observations of the Supreme Court, the power to recruitment as delegated to the Director General of Police vide the notification dated 24/9/2004 would only include the initial process of enlistment, acceptance, selection or approval for appointment for the posts of UBSI/ABSI in Nagaland Police and nothing more than that. In the backdrop of the above observations of the Supreme Court, the power to recruitment as delegated to the Director General of Police vide the notification dated 24/9/2004 would only include the initial process of enlistment, acceptance, selection or approval for appointment for the posts of UBSI/ABSI in Nagaland Police and nothing more than that. This would be further clear from the language of the said notification dated 24/9/2004, wherein it was also observed that the Director General will conduct recruitment through the selection committee consisting of representatives of the Home P& T Department. It is also relevant to take note of that the act to merge the seniority list of the ABSI, UBSI and the ASI is an act which comes into effect after appointment takes place in the cadre of ABSI, UBSI and ASI and the same would come within the fold of conditions of service of the persons appointed. This power however has not been conferred upon the Director General of Police. Therefore the act of the Director General of Police to issue the minutes of Meeting dated 2/7/2011 and the Office Memorandum dated 5/7/2011 cannot be traced back to the power conferred upon the Director General of Police vide Notification dated 24/92004. It is only the State Government who being the employer has the authority to take such actions as was done in the case of encadering all posts of UB Inspector Male vide the notification dated 17/6/2011. 42. Now the question which arises as to whether the act of having a common seniority list for both male and female police officers in the rank of UBSI/ABSI and ASI is ultra vires. Admittedly there is no statutory Rules framed under Article 309 of the Constitution as have been submitted by the counsels for both the parties. At this stage, it would be relevant to take note of the Office Memorandum dated 9/3/2010 issued by the Home Commissioner, Government of Nagaland. The said Office Memorandum is a decision and policy of the Government of Nagaland for determination of inter se seniority of Sub Inspector and Inspectors. At this stage, it would be relevant to take note of the Office Memorandum dated 9/3/2010 issued by the Home Commissioner, Government of Nagaland. The said Office Memorandum is a decision and policy of the Government of Nagaland for determination of inter se seniority of Sub Inspector and Inspectors. It is seen from the Office Memorandum that there was a decision that entry point of subordinate officers in the Nagaland Police being at the level of Sub-Inspector and the next higher promotional grade being the grade of Inspectors, the seniority in the grade of Sub-Inspectors which is the feeder grade should be taken into account in determining the seniority of Inspector of police subject to passing Departmental Examination. (CPT). Further to that, it was also mentioned that a decision was taken to issue a notification in the matter of determining the seniority of the subordinate officers of Nagaland Police based on their seniority in the grade of Sub-Inpsector. It is also relevant to mention that by the Office Memorandum dated 9/3/2010, the seniority of the Inspectors were to be determined on the basis of seniority in the grade of Sub-Inspector of Police and the seniority list of Inspectors of Police would be prepared/finalized in accordance with the principle of seniority and the said principle would apply to all the cases of promotion made in the grade of Inspectors whether prior or subsequent to revision of the fit test by the Review Committee. 43. Therefore it would be seen that pursuant to the said Government Decision, the Notification dated 17/06/2011 was issued. The impugned minutes of the meeting dated 2/7/2011 and the Office Memorandum dated 5/7/2011 were nothing but a continuation and follow-up action of the Government decision dated 9/3/2010 and the Notification dated 17/6/2011. Though the power cannot be traced to the Notification dated 24/9/2004 but as the said minutes of meeting dated 2/7/2011 and the Office Memorandum dated 5/7/2011 were in consonance and accordance with the Office Memorandum dated 9/3/2010, the said minutes of the meeting dated 2/7/2011 and the Office Memorandum dated 5/7/2011 cannot be held to be ultra vires. This aspect of the matter could be seen from another angle. This aspect of the matter could be seen from another angle. The decision in the minutes of the meeting dated 2/7/2011, the Office Memorandum dated 5/7/2011 and the subsequent action of the Respondents till date have not been disturbed or interfered with by the Government who is the employer and therefore such actions were deemed to have been accepted by the Government. 44. Now the question therefore arises what is the relief that can be granted to the petitioners in the facts of the instant case. In that regard, it would be relevant to take note of an order being passed by this Court on 20/4/2018, whereby this Court directed the parties to file their documents indicating the number of vacancies that existed in the post of SI and ASI, for male and female at the relevant time before the merger of ASI and SI into one cadre. In pursuance to the said order passed by this Court an additional affidavit was filed by the Respondent No.1 to 6. It was mentioned in the said additional affidavit that vide the Memorandum dated 27/10/2006, issued by the Office of the Director General of Police, Nagaland, Kohima, the final seniority list of UBSI(W/P) was published. 45. As per the said final seniority list there were 13 posts of UBSI(W/P) as on 27/10/2006 which were all filled up by the Women Police. Subsequent thereto vide another Memorandum dated 28/9/2007 issued by the Office of the Director General of Police, Nagaland, Kohima, the final seniority list of ASI(Women Police) was published. As per the said final Seniority List there were 27 posts of UBSI(W/P) as on 28/9/2007 which were all filled up by Women Police. From the said final seniority list, it appears that the Petitioners herein were at Sl. Nos. 6, 8 and 10. Subsequent thereto, vide a letter dated 2/11/2007, 11 posts of SI(Women Police) and 11 posts of ASI(Women Police) were created against the Police Stations in each districts of the State. All the 11 posts of UBSI(W/P) were directly filled up by the female candidates vide order dated 22/1/2008. Nos. 6, 8 and 10. Subsequent thereto, vide a letter dated 2/11/2007, 11 posts of SI(Women Police) and 11 posts of ASI(Women Police) were created against the Police Stations in each districts of the State. All the 11 posts of UBSI(W/P) were directly filled up by the female candidates vide order dated 22/1/2008. It was mentioned that the cumulative reading of the seniority list UBSI(W/P) published by the Memorandum dated 27/6/2006, the seniority list of the ASI(W/P) published by the Memorandum dated 28/9/2007 and the order dated 22/1/2008 directly recruiting 11 UBSI would show that, in the month of January 2008 there were 22 posts of UBSI(W/P) and 38 posts of ASI under the Establishment of the Director General of Police, Nagaland, all of which were filled up by female candidates. It was mentioned that the petitioners herein were directly appointed to the post of ASI vide the order dated 31/12/1998 against the posts created by the Government vide letter dated 15/9/1997. Vide an order dated 5/2/2008 the Petitioners along with 7 others were released to enable them to report to the Commandant, NAPTC for Central Promotion Test scheduled to commence from 11/2/2008. All the 10 ASI(W/P) qualified the CPT for promotion to the post of UBSI(W/P). Consequently, vide order dated 31/3/2008, 3 out of 10 of the ASIs as per their seniority in the final seniority list of ASI(W/P) were promoted to the rank of UBSI, this promotion was made against the vacancies caused by the promotion of senior most UBSI(W/P) which was affected by the notification dated 6/6/2007. 46. Thereafter vide an order dated 24/10/2008, the person at Serial No.4 of the final seniority list of ASI dated 28/9/2007 and who was at Serial No. 1 of the order dated 31/3/2008 was promoted to the rank of SI(W/P). The said promotion of the ASI was against the existing vacancies caused by the promotion of one UBSI(W/P) to Inspector (W/P) vide notification dated 29/5/2008. Subsequent thereto on 1/4/2008 the person at Serial No. 5 of the final seniority list dated 28/9/2007 and who was at Sl. No. 2 of the notification dated 31/3/2008 was promoted to the rank of UBSI (W/P). The promotion was against the existing vacancies caused due to the retirement of a UBSI on 30/11/2010. It was mentioned in the said additional affidavit that subsequent to the promotion of the person at Sl. No. 2 of the notification dated 31/3/2008 was promoted to the rank of UBSI (W/P). The promotion was against the existing vacancies caused due to the retirement of a UBSI on 30/11/2010. It was mentioned in the said additional affidavit that subsequent to the promotion of the person at Sl. No. 5 of the final Seniority List dated 28/9/2007, no vacancies accrued in the post of UBSI(W/P) till merger of the male and female UBSI. It was mentioned that prior to the issuance of the notification dated 17/6/2011 there were only 4 posts of unarmed Branch Inspector(W.P.) and promotion to these 4 posts could be made only against promotion and/or retirement of the 4 incumbents from amongst the senior UBSI(W.P.) and not otherwise. It has been mentioned that on 24/3/2017 the Petitioners herein were promoted to the rank of UBSI. 47. At this stage, it is also relevant to take note of that there is no right to promotion. A person only has a fundamental right to be considered for promotion. Even if this Court looks into the order dated 31/3/2008, it would be seen that the Petitioners along with others have passed the Central Promotion Test and was kept in the Fit List in the rank of UBSI(W.P.) but the said promotion was subject to vacancy having arisen as well as good ACRs for the preceding 5 years. Therefore, the question of granting relief to promote the Petitioners to the rank of UBSI (W.P) with retrospective effect as per the CPT Fit List dated 31/3/2008 cannot be granted unless and until any vacancy arises. 48. The next question therefore, arises as to whether the Petitioners could have been granted all benefits if vacancy arises in the rank of UBSI (W/P) prior to the merger. The law in this regard is well settled. From the various judgments of the Supreme Court that even if a direction is given for notional promotion from a deemed date, the promotee is not entitled to arrears of pay from the deemed date to the date of their posting in promotional post as they had not worked out during that period in the promotional post (see State of Haryana Vs O.P. Gupta reported in (1996) 7 SCC 533 ; Union of India Vs. Tarsem Lal and Ors. reported in (2006) 10 SCC 145 ; Union of India Vs. Tarsem Lal and Ors. reported in (2006) 10 SCC 145 ; Union of India Vs. B.M. Jha reported in (2007) 11 SCC 632 and A.K. Soumini Vs. State Bank of Travancore and Anr. reported in (2003) 7 SCC 238 ). 49. Before further proceeding on deciding the question of the relief that can be granted, it would also be relevant to take note of the question of delay and laches. The appointment of the Respondent Nos.7 to 17 as direct recruits was made on 22/1/2008. The said appointment though contrary to the Memorandum dated 09/06/1966 of the Government of Nagaland Home Department and more particularly Clause (4) therein, but the said appointments were sought to be challenged firstly in the year 2014 and thereafter by way of the present Writ Petitions. In the opinion of this Court, the said challenge on the face of it suffers from delay and laches. It is also relevant herein to mention that it is trite law that where appointments are made from one source but are made after following the procedure prescribed by the Rules for appointment, the appointees should not be pushed down below the appointees from other source inducted in service at a later date (see Direct Recruit Class II Engineering Officers’ Association Vs. State of Maharashtra reported in (1990) 2 SCC 715 ). 50. The next aspect of the matter would be as regard to the challenge to the minutes dated 2/7/2011 and 5/7/2011, on the basis of which the seniority list of male and female personnel of Nagaland Police were merged; and consequently on 15/7/2011 and 20/12/2011 the tentative seniority list and the final seniority list were published. The record shows that on 14/10/2012 representations were submitted by the Petitioners. The Respondent Authorities did not consider the said representations and the Petitioners sat over the matter. Subsequent thereto, the Respondents took various steps for appointment as well as also issued an order dated 04/10/2013 whereby the Petitioners were put in the fit list at Serial Nos. 43, 44 and 45. The Petitioners submitted representations again on 26/10/2013. On 16/11/2013 the Petitioners were duly informed that their representations cannot be accepted as the decision taken by the police Headquarters as regards the encadre of post and maintenance of common seniority list from male and female UBSI/ABSI/ASI and for the purpose of promotion cannot be undone and reviewed. 43, 44 and 45. The Petitioners submitted representations again on 26/10/2013. On 16/11/2013 the Petitioners were duly informed that their representations cannot be accepted as the decision taken by the police Headquarters as regards the encadre of post and maintenance of common seniority list from male and female UBSI/ABSI/ASI and for the purpose of promotion cannot be undone and reviewed. Thereafter, on January 2014 the Petitioners for the first time approached this Court by filing three separate Writ Petitions i.e. W.P.(C) No. 9(K)/2014, W.P.(C) No. 10(K)/2014 and W.P.(C) No.11(K)/2014. While the said petitions were pending, there were further promotions made to the rank of UBSI, for which the Petitioners withdrew the said writ petitions on 10/02/2016 and after 3 months filed the present writ petitions on 31/5/2016. 51. The Petitioners have not assigned any reasons as to why there has been a delay of almost 3 years in challenging the minutes of the meeting dated 2/7/2011, the memorandum dated 5/7/2011 and the impugned seniority list dated 15/7/2011. In view of such delay, rights have accrued upon others, while the Petitioners were sitting idle. It would also be seen that it was after more than 1 year the Petitioners filed the first representation and thereafter the second representation was filed on 26/10/2013. The impugned minutes of the meeting dated 2/7/2011 and Memorandum dated 5/7/2011 and subsequent Memorandum dated 15/7/2011 were known to the Petitioners and there was nothing which prevented the Petitioners from approaching this Court. An interference with the actions of the Respondents at this stage would unsettle settled matters, which would lead to several complications. Consequently, this Court therefore holds that, on account of delay and laches no writ can be issued as regards the relief so sought for in the instant Writ Petitions. 52. In view of the above, the three writ petitions stands dismissed. However, no costs. 53. The Registry is directed to forthwith transmit the records to the Kohima Bench.