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2025 DIGILAW 1571 (GAU)

Samuel Ao v. State of Nagaland

2025-09-12

KALYAN RAI SURANA, YARENJUNGLA LONGKUMER

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JUDGMENT : K.R. Surana, J. Heard Mr. A. Zho, learned counsel for the petitioners in all the three writ petitions. In connection with W.P.(C) No. 222/2022, heard Mr. E. Thiba Phom, learned Govt. Advocate, appearing for the State respondent nos. 1 and 3 and Mr. T.B. Jamir, learned special counsel for the State respondent nos. 2, 4 and 5. In connection with W.P.(C) No. 232/2021, heard E. Thiba Phom, learned Govt. Advocate, appearing for the State respondent nos. 1, 2 and 3, and Mr. Wati Jamir, learned counsel for the private respondent nos. 7, 11, 22, 23, 27, 41, 44 and 54. None appears for other private respondents. In connection with W.P.(C) No. 237/2021, heard E. Thiba Phom, learned Govt. Advocate, appearing for the State respondent nos. 1, 2 and 3. None appears for other private respondents. Brief facts of the case: 2) The petitioners are all police personnel in the Unarmed Branch of Nagaland Police. They are aggrieved by limited scope of promotional avenues for police personnel from Unarmed Branch and project that while only few limited police personnel from Unarmed Branch have received promotion more than once in their service career, for most of the Unarmed Branch personnel, they have received only one promotion in their career. It is projected that their counterparts, who were recruited in the same year and under same selection process, but posted under the Armed Branch, have got multiple promotions and have even reached the rank of Deputy Superintendent of Police in Nagaland Police and thus, are several rank superior to the petitioners. Accordingly, by filing W.P.(C) Nos. 232/2021 and 237/2021, the petitioners have, inter alia, prayed for a direction upon the State respondents to prepare a combined seniority list of both the Armed Branch and Unarmed Branch of Nagaland Police and for other consequential reliefs. However, by filing W.P.(C) No. 222/2022, the petitioners have questioned the legality of Rule 33(b) of Part-III of Nagaland Police Manual and have also prayed for quashing the said provision. Submissions of the learned counsel for the petitioners: 3) The learned counsel for the petitioners has submitted that for convenience of the Court, and in consonance with the statements made in the writ petition, he has prepared and produced a chart, containing the position of the petitioners vis-à-vis the private respondents in W.P.(C) 232/2021, projecting as follows:- a. The petitioner nos. 1, 2, 9 and 10 had got promotion from the post of Sub-Inspector after 14 years to the post of Unarmed Branch Inspector; the petitioner nos. 3, 4, 5, 7, 8, 11 to 17 had been promoted after 15 years; and the petitioner no. 6 got his promotion after 16 years. b. From the said chart, comparing the position of the petitioners with the private respondent nos.6 to 15 in W.P.(C) 232/2021, it has been submitted that the respondent nos. 6 to 10, 13, 14 and 15 got their first promotion to the post of Armed Branch Sub-Inspector after 3 years; the private respondent nos. 11 and 12 got promoted to the post of Armed Branch Sub-Inspector after 2 years. c. It has been projected that all the said respondents got their second promotion to the next higher post of Armed Branch Inspector after 7 years of their first promotion. d. From the said chart, it is further projected that the respondent no.6 got his next and third promotion to the post of Deputy Superintendent of Police after 12 years of his first promotion; the respondent nos. 8, 9, 10, 13, 14, 15, got their next promotion after 13 years; and the respondent nos. 7, 11 and 12 got their next promotion after 15 years. 4) It has been submitted that the petitioners as well as the private respondents in the said W.P.(C) 232/2021, had applied for being appointed as Constables in the Nagaland Police pursuant to advertisement dated 23.03.1999. However, upon selection, while the police authorities had posted the petitioners in the Unarmed Branch but posted the private respondents therein were arbitrarily posted in the Armed Branch of Nagaland Police. 5) It has also been submitted that it was not disclosed in the recruitment advertisement that the police authorities will, at their discretion, appoint selected candidates in two different branches of Nagaland Police, i.e. Armed Branch and Unarmed Branch. It was further submitted that as per his instructions, the meritorious selected candidates were posted in desk jobs by classifying them as Unarmed Branch Police personnel and those who were less meritorious, were posted as personnel in the Armed Branch. It has been submitted that while applying for recruitment to the post, the petitioners had not given any preference for being appointed in the Unarmed Branch. It has been submitted that while applying for recruitment to the post, the petitioners had not given any preference for being appointed in the Unarmed Branch. 6) It has also been submitted that the Nagaland Police Manual was not published in the Nagaland Gazette and was not given wide publicity and accordingly, it has been submitted that the Nagaland Police Manual itself was non est and void ab initio in the eye of law. It has been submitted that there being no rules governing employment and service police personnel of the Armed Branch and Unarmed Branch of Nagaland Police, the classification of police personnel as police in Armed Branch and Unarmed Branch was illegal and thus, the entire Nagaland Police Manual was not sustainable. In the said regard, by referring to the case of Collector of Central Excise v. New Tobacco Co. & Ors., (1998) 8 SCC 250 , decided by the Supreme Court of India, it has been submitted that as per the well settled legal proposition laid down in the said case, the State respondents were not only required to publish the entire Nagaland Police Manual in the Nagaland Gazette, but it was also incumbent on part of the State respondents to give wide publicity to the same and invite objections or comments from public, and in the absence of compliance of those essential ingredients, the Nagaland Police Manual as well as Clause 33(b) of Part-III of the said Manual was liable to be declared as illegal and ultra vires and were liable to be set aside and quashed. Accordingly, it has also been submitted that consequential directions also should be issued upon the State respondents to prepare a common seniority list effective from the respective dates when the petitioners and the private respondents in W.P.(C) 232/2021 and W.P.(C) 237/2021, had entered in service in Nagaland Police with further directions to the State respondents to give consequential benefit of promotion to the police personnel in Unarmed Branch, including the petitioners. Submissions by the learned counsel for the respondents: 7) Per contra, the learned counsel for the respondents as well as the learned special counsel for the Home Department, and Govt. Advocate for the State have all opposed the prayers made in all the writ petitions. It has been submitted that these writ petitionsare misconceived. Submissions by the learned counsel for the respondents: 7) Per contra, the learned counsel for the respondents as well as the learned special counsel for the Home Department, and Govt. Advocate for the State have all opposed the prayers made in all the writ petitions. It has been submitted that these writ petitionsare misconceived. It has been submitted that the petitioners in W.P.(C) 222/2022, have annexed a portion of the photocopy of the Gazette notification dated 31.08.2018, which discloses that by a Notification dated 08.03.2010, in exercise of the powers conferred under the Article 309 of the Constitution of India, the Governor of Nagaland was pleased to notify the Nagaland Police Manual containing 6 (six) parts for regulating the recruitment and conditions of the service of personnel appointed to the Nagaland Police Force. Thus, it had been submitted that notwithstanding that the Nagaland Police Manual had been notified on 08.03.2010, the notification was published in the Nagaland Gazette on 31.08.2018. It was also submitted that the said Manual was followed since it was notified on 08.03.2010 and therefore, the petitioners do not suffer any prejudice. 8) It has been submitted that in W.P.(C) 232/2021, the petitioners have annexed a copy of the order dated 15.03.2017, passed by this Court in W.P.(C) 129(K)/2015, where reference has been made to Rule 33(b) of the Nagaland Police Manual Part-III. Therefore, the petitioners in these three writ petitions do not have any ground or basis to dispute the existence of Nagaland Police Manual . In this regard, it has been submitted that Shri Bendangsangba Jamir, the petitioner no. 9 in W.P.(C) No. 129(K)/2015 is arrayed as the petitioner no. 12 in W.P.(C) 232/2021 and that in W.P.(C) No. 129(K)/2015, the Nagaland Police Manual has been referred to. Therefore, it has been submitted that all the three writ petitions deserve to be dismissed. Discussion and decision: 9) Considered the materials available in the file of these three writ petitions and also considered the submissions made by the learned counsel for all appearing parties. 10) Pleadings available on record: In the proceedings of WP(C)222/2022, the State respondent nos. 2, 4 and 5 have filed a joint affidavit-in-opposition against which the petitioners have filed their affidavit-in-reply. In the proceedings of W.P.(C) 232/2021, the respondent nos. 10) Pleadings available on record: In the proceedings of WP(C)222/2022, the State respondent nos. 2, 4 and 5 have filed a joint affidavit-in-opposition against which the petitioners have filed their affidavit-in-reply. In the proceedings of W.P.(C) 232/2021, the respondent nos. 1, 2 and 3 had filed a joint affidavit-in- opposition, against which the petitioners have filed their affidavit-in-reply; the private respondent nos.7, 11, 22, 23, 27, 41, 44, 54 and 66 have filed a joint affidavit-in-opposition against which the petitioners have filed their affidavit-in-reply. In the proceedings of WP(C)237/2021, no affidavit-in-opposition has been filed. 11) The prayers made in the three writ petitions are as follows: a. In WP(C)222/2022, the petitioners have prayed for striking down the provisions of Rule 33(b) being the general rules for promotions of Non-Gazetted Officers under Part-III of the Nagaland Police Manual and direct the respondent authorities to maintain common inter se seniority list on the basis of seniority in the grade of Sub-Inspector of Police. b. In WP(C)232/2021, the petitioners have prayed for a direction upon the respondent authorities to maintain a common inter se seniority list on the basis of seniority in the grade of Sub- Inspector of Police; to implement the State Government Office Memorandum dated 09.03.2010 while determining the seniority in the grade of Inspector of Police; quash and set aside the impugned Memorandum dated 14.03.2014 by which a distinction has been made for the first time between UB and AB Inspectors and Notification dated 18.06.2020 by which the ratio of 28:22 between AB and UB Inspectors has been laid down; quash and set aside the promotion/impugned Notification dated 22.01.2016 in respect respondent nos. 5, 18 & 19 and promotion/ Notification dated 28.06.2021 in respect of respondent nos. 6, 20 and 21; and quash and set aside the impugned tentative seniority list circulated vide O.M. dated 09.04.2021 and ABI/UBI in the ratio of 28:22. 5, 18 & 19 and promotion/ Notification dated 28.06.2021 in respect of respondent nos. 6, 20 and 21; and quash and set aside the impugned tentative seniority list circulated vide O.M. dated 09.04.2021 and ABI/UBI in the ratio of 28:22. c. In WP(C)237/2021, the petitioners have prayed for a direction upon the respondent authorities to maintain a common inter se seniority list on the basis of seniority in the grade of Sub- Inspector of Police; to implement the State Government Office Memorandum dated 09.03.2010 while determining the seniority in the grade of Inspector of Police; quash and set aside the impugned Memorandum dated 14.03.2014 by which a distinction has been made for the first time between UB and AB Inspectors and Notification dated 18.06.2020 by which the ratio of 28:22 between AB and UB Inspectors has been laid down; quash and set aside the promotion/impugned Notification dated 18.06.2020; quash and set aside the impugned Notification dated 23.06.2020 in respect private respondent nos. 5 and 6; quash and set aside the impugned Notification dated 28.06.2021 in respect of the private respondent nos. 4, 7 and 8. 12) The State of Nagaland has an enactment called the “Nagaland Armed Police Act, 1966. None of the learned appearing counsel could inform the Court if there is any other Police Act in force in the State of Nagaland. It appears that the said Act had received the assent of the Governor of Nagaland on 24.11.1966 and published in the Nagaland Gazette- Extraordinary, dated 26.11.1966. 13) It is noted that in the order dated 15.03.2017, passed by this Court in W.P.(C) 129(K)/2015, Nagaland Police Manual has been referred to. Therefore, as on 15.03.2017, the said Manual was being acted upon in the State of Nagaland. 14) As per the copy of notification that is annexed as Annexure-Lto W.P.(C) 222/2022, discloses as follows:- The Nagaland Gazette 31, August, 2018 PART-IIA NOTIFICATION Dated Kohima, the 8 th Mar’ 2010 NO.POL-I/ESTT/99/2003:: In exercise of the powers conferred under the Article 309 of the Constitution of India, the Governor of Nagaland is pleased to notify the Nagaland Police Manual containing 6 (six) parts for regulating the recruitment and conditions of the service of personnel appointed to the Nagaland Police Force. Sd/ SASHINARO Deputy Secretary to the Govt. of Nagaland. Sd/ SASHINARO Deputy Secretary to the Govt. of Nagaland. 15) As per Rule 1(ii) of Part-III of the Nagaland Police Manual , the Armed Branch comprises the following, viz., (a) A force specially trained in the quelling of disturbances and quasi-military duties, known as the Armed Police Reserve; (b) A force for the supply of guards and armed escorts; (c) Certain miscellaneous personnel, as armourers and buglers; and (d) An ordinary reserve in the rank of Constable, to provide for leave, sickness, training and other vacancies. 16) As per Rule 1(iii) of Part-III of the Nagaland Police Manual , the scope of Unarmed Branch Companies are as follows, viz., (a) The staffs of investigating centers and outpost, including beat posts; (b) The staffs of Court Officers, including Constables provided for guarding prisoners in the Court lock-up, or property in the Court Malkhana; (c) A force specially trained in Traffic Regulation and Surveillance; (d) The Criminal Investigation Department; (e) Certain miscellaneous personnel, such as orderlies and patrol parties; and (f) As ordinary reserve, in the rank of Constable, to provide for leave, sickness, training and other vacancies. 17) Thus, from a conjoint reading of Rule 1(ii) and Rule 1(iii) of Part-III of the Nagaland Police Manual , as referred hereinbefore, the duties entrusted to the personnel of the Unarmed Branch Police personnel are not similar to the duties entrusted to the police personnel in the Armed Branch. Hence, in these writ petitions, the petitioners have not been able to successfully show and/or demonstrate that the nature of job that are performed by the Armed Branch and the Unarmed Branch are similar and therefore, the Court is constrained to hold that no case of discrimination by the State has been made out by the petitioners. 18) It is seen from the copy of Notification No. POL- 1/ESTT/22/2011 dated 18.06.2020 [Annexure-I to WP(C) 222/2022] that the Governor of Nagaland had been pleased to accord approval for maintaining the 28:22 ratio between Armed Branch Inspectors and Unarmed Branch Inspector for promotion to the grade of Deputy Superintendent of Police and equivalent grade out of 50% promotion quota. It is found mentioned in the said notification that the same was issued after Cabinet approval. It is found mentioned in the said notification that the same was issued after Cabinet approval. 19) Contrary to the projections made by the petitioners that they all had applied for being appointed in the Nagaland Police, on a perusal of the advertisement bearing No. PHQ(B-I)1/IRB/99 dated 23.03.1999 [Annexure-A to WP(C) 232/2021], it is seen that vide the said advertisement, applications were invited from male indigenous inhabitants of Nagaland to fill up vacancies in the rank of Sub-Inspector, Assistant Sub-Inspector and Havildar under the direct quota in the India Reserve Battalion and also some posts under Nagaland Police. Therefore, the submissions made by the learned counsel for the petitioners that they were arbitrarily placed in the Unarmed Branch is found contrary to the record as in the said advertisement it has merely been stated that there were some vacancies in the Nagaland Police to be filled up, without specifying for which posts the said advertisement had been issued. Thus, the petitioners had joined in service in the Nagaland Police with full knowledge that they could be employed in any of the vacancies that then existed in the Nagaland Police. Therefore, the deployment of the petitioners in the Unarmed Branch was duly accepted by the petitioners and was never questioned and/or objected to by the petitioners either before or immediately after joining in their respective posts in the Unarmed Branch of Nagaland Police. Thus, the petitioners had enjoyed working in their respective places of posting for several years without any demur. Therefore, by applying the principles of waiver, estoppel and acquiescence, the Court is of the considered opinion that it is not open to the petitioners to question their appointment in the Unarmed Branch of Nagaland Police, which according to the petitioners, was sometime in the year 1999. 20) The learned counsel for the petitioners has cited the case of Collector of Central Excise (supra). The said case is not found to apply on the facts and circumstances of the present case or help the petitioners in any manner. In factual matrix on which the said case was decided is that the respondents therein, being the manufacturer of cigarettes, were required to pay central excise at the rate that was fixed by notification dated 11.03.1978. The said rates was rescinded by notification dated 30.11.1982 and new rates were levied. In factual matrix on which the said case was decided is that the respondents therein, being the manufacturer of cigarettes, were required to pay central excise at the rate that was fixed by notification dated 11.03.1978. The said rates was rescinded by notification dated 30.11.1982 and new rates were levied. The respondent before the Supreme Court of India was issued show cause notice to pay the differential amount of central excise. The demand was upheld by the Collector (Appeals). However, the Tribunal held that publication cannot be equated to mere printing and it is availability of printed materials to general public that constitutes required publication. Thus, in the context of Central Excise notification, the Supreme Court of India had held to the effect that “Central Excise notification” can be said to have been published when it is so issued as to make it known to public, except when it provided otherwise. The provision of Section 38 of the Central Excise Act, 1944 mandates that notifications should be published in Gazette. Therefore, the said judgment, held in the context of publication of Central Excise notification, cannot be applied to publication of a Gazette notification regarding exercise of power of the Governor of the State under Article 309 of the Constitution of India regarding notifying of the Nagaland Police Manual . The existence and applying of the Nagaland Police Manual was even prior to the issuance of notification dated 30.08.2018, as is evident from the order dated 15.03.2017, passed by this Court in W.P.(C) 129(K)/2015. 21) The learned counsel for the petitioners has not been able to show any provisions in the relevant Act constituting and/or governing the Police establishment in the State of Nagaland, which mandates issuance of Gazette Notification to bring into force the Police Manual for the State of Nagaland, and by giving it wide publicity. 22) In light of the issue raised by the petitioners, in a quest to find an answer, a little academic research was done by us. Just for illustrative and academic purpose, it may be mentioned here that there is no provision in the Indian Penal Code providing that the said Act would come into effect only after its publication in the official Gazette. Just for illustrative and academic purpose, it may be mentioned here that there is no provision in the Indian Penal Code providing that the said Act would come into effect only after its publication in the official Gazette. Moreover, Clause (3) of Article 13 of the Constitution of India “law” includes, amongst others, “rule”, but the said Article does not mandate that Rules must mandatorily be notified in the Official Gazette. From the internet and from the EBC Reader website, information could not be gathered if there is any enactment in the Country regarding Gazette of India, However, it is seen that there is information regarding three Acts relating to Gazette in the internet, they are (i) Official Gazettes Act, 1863, which was repealed by Act 1 of 1938; (ii) The Jammu and Kashmir Government Gazette Act, 1945 (sanctioned by the then Maharaja-in-Council), and (iii) The Rajasthan Gazette (Rajpatra) Act, 1956. The said information was shared with the learned counsel for the parties in course of hearing, but the attention of the Court would not be drawn to existence of any such Act in the State of Nagaland. The purpose of examining such Acts was to see if it is mandatory that for a “law” within the meaning of Article 13 of the Constitution of India to be in force, it has to be published in the official Gazette, but at least the said three Acts do not make it mandatory that all laws, to be brought in force, were to be published therein. However, it is clarified that this is a mere passing observation, made with little research and therefore, the observations made in this paragraph is not intended to be a conclusive finding of the Court and the point is left for being decided in a more appropriate case. 23) Be that as it may, the petitioners have not been able to demonstrate that vide employment advertisement dated 23.03.1999, they were enticed to apply for only one class of post. The petitioners have also failed to demonstrate that they were arbitrarily and without any basis, posted in the Unarmed Branch of Nagaland Police. 23) Be that as it may, the petitioners have not been able to demonstrate that vide employment advertisement dated 23.03.1999, they were enticed to apply for only one class of post. The petitioners have also failed to demonstrate that they were arbitrarily and without any basis, posted in the Unarmed Branch of Nagaland Police. The petitioners have also failed to show that they had suffered any prejudice merely because the State had been following the Part-III of the Nagaland Police Manual even prior to the publication of a notification in the Nagaland Gazette on 31.08.2018 and appointed them in Unarmed Branch of Nagaland Police. The petitioners have also failed to show that in view of the nature of work assigned to the Armed Branch and Unarmed Branch of Nagaland Police, the ratio of promotion contained in the notification dated 18.06.2020 [Annexure-I to WP(C) 222/2022] was illegal, bad or arbitrary in any manner whatsoever. Moreover, the petitioners have also failed to demonstrate why a common gradation list and/or inter se seniority list for police personnel in the rank of Sub-Inspector and above in respect of two separate and distinct branches of the Nagaland Police. 24) This Court, in exercise of writ jurisdiction under Article 226 of the Constitution of India, would not undertake the task of examining as to whether the ratio of promotion in two branches of Nagaland Police, being 28:22 was right or wrong or there could be another ration that would be better. That exercise is one of the essential functions of the State Administration to determine how the promotions were to be made from two different cadres, being Armed Branch and Unarmed Branch of Nagaland Police. The Court does not have the expertise to venture to that arena, which is reserved for the Executive. Therefore, the Court would not impose its wisdom on the decision of the State, which is demonstrated to be backed by a Cabinet decision of the State, as mentioned hereinbefore. 25) Therefore, in light of the discussions above, the Court is constrained to hold that the petitioners have not been found entitled to any of the reliefs claimed in all the three writ petitions. 26) Accordingly, these writ petitions fail and the same are dismissed, leaving the parties to bear their own cost.