Lily Tep and Others vs State of Nagaland and Others

B. Lamare, J.—I have heard Mr. E.Y. Renthungo, learned counsel for the petitioners, Mr. I. Jamir, learned Addl. Advocate General for respondent Nos. 1 to 4, MR. C.T. Jamir, learned counsel for the respondent No. 6, and Mr. A. Zhimomi'', learned counsel for the respondent Nos. 5, 7 8 and 9.

All the writ petitions are taken up together as it relates to the same question of facts and law as all the petitioners have assailed the absorption of respondent No. 6 and regularisation of respondents Nos. 5, 7, 8 and 9 and the officiating promotion of respondent Nos. 10 and 11, and also the validity of Sub-rule (c) of Rule 6 of the Nagaland Soil & Water Conservation Service Rules, 1997.

Smt. Lily Tep, writ petitioner in WP (C) 118 (K) 2000 was appointed as Instructor, Class-III non-gazetted by order dated 6.1.1987 in the Department of Soil and Water Conservation, Nagaland. Her service was converted into Class-II gazetted by Notification dated 29,9.1997 w.e.f. 1.6.1990.

Shri N. I. Toshi Ozukum, writ petitioner in WP (C) 127(K)2000 was appointed as Ranger, Class-Ill non-gazetted in the Soil and Water Conservation Department by order dated 6.1.1987. His post was converted into Class-II gazetted by Notification dated 8.8.1988 w.e.f. 12.9.1987.

Smt. Senlichila, writ petitioner in WP(C) 128(K) 2000 was appointed as Inspector, Class-Ill non-gazetted by order dated 6.1.1987 in the Directorate of Soil and Water Conservation, Nagaland. Her post was converted into Class-II gazetted by Notification dated 28.3.2000 w.e.f. 1.6.1990.

Smt. Lochumi Venuth, writ petitioner in WP(C) 129(K)2000 was appointed as Asstt. Soil Survey Officer by Memorandum dated 28.2.1992 and joined her service on 1.3.1993. Earlier she was appointed as Inspector on Contract basis w.e.f. 17.1.1987.

Shri Z. Amenba, writ petitioner in WP(C) 130(K) 2000, was appointed as Asstt. Soil Survey Officer in the Directorate of Soil and Water Conservation, Nagaland by Office Memorandum dated 28.2.1992.

All the petitioners herein are graduate in Agriculture Science (B.Sc. Agri). The case of the petitioners in brief is that, as per Schedule-II of the Nagaland Soil and Water Conservation Service Rules, 1997, the quote system for filling of the posts of S.D.O./S.S.O./Soil Chemist/ A.S.C.O.(R) having prescribed and that, according to the said Rules, the quota for direct recruitment is 331/2% and the remaining 662/3% quota is to be filled up by promotion. Out of 662/3% 50% of the posts are to be filled up by persons having B.Sc. Agri, B.Sc. Agri. Engg. Degree holders having completed not less than 5 (five) years of service in the grade of Inspector. The other 50% of the promotion quota is to be filled up by Inspectors who are not degree holders and who have completed not less than 10 (ten) years of service as Inspector. In accordance with the said Rule, the respondents are bound to fill up the posts of S.D.O./ S.S.O./Soil Chemist/A.S.C.O.(R) by following the rules.

The petitioners also contended that, the Nagaland Soil and Water Conservation and Engineering Service Rules, 1988 (1988 Rules, for short) superseded by the Nagaland Water and Soil Conservation Service Rules 1997 (1997 rules, for short), and that according to the 1988 Rules, the said post of S.D.O. (B.Sc. Agri)/A.S.C.O.(R), A.S.C.O. (Forest) and S.S.O. were to be filled up by 50% direct recruitment and 50% by promotion. If taking the 1988 rules into consideration the respondents have violated the Service rules by absorbing the respondent No. 5 who does not belong to the department and also regularising the services of the respondents 6, 7, 8 and 9 and also by officiating promotion to the respondent 10 and 11.

The petitioners were aggrieved by the action of the respondents in not promoting them, have made representation to the respondent No. 2. The writ petitioner Smt. Lily Tep and Smt. Senlichila Ao submitted their representations to the respondent No. 2 on 15.7.1992, the writ petitioner Shri N. I. Toshi Ozukum submitted his representations on 5.1.1999, 21.10.1999 and 3.12.1999 to the respondent No. 2 expressing his grievances requesting the authorities to consider his case as well as other eligible Agriculture graduate serving as Inspectors and other equivalent posts in the same department. Smt. Lochumi Venuh also submitted her representation on 15.7.1992 to the respondent No. 2. Shri Z. Amenba also submitted several representations along with others to the respondent No. 2 for non-consideration of their case.

The respondent No. 5 Shri Imlongchaba Chang who was on contract service was regularised in the post of Soil Survey Officer w.e.f. 10.6.1996 by Notification dated 5.7.1996. The respondent No. 6 who was serving as VEW in the Agriculture department was brought on deputation as Soil Survey Officer in the Soil and Water Conservation department for a period of one year by Notification dated 10.5.1995 w.e.f. 1.5.1995. Subsequently, he was absorbed in the department. The respondent Nos. 7.8 and 9 who were earlier working as Asstt. Proj ect Officer under Jhum control (Centrally sponsored scheme) were terminated from service on the expiry of such scheme w.e.f. 31.12.1992. However, the respondents 7, 8 and 9 were re-appointed on contract basis for a period of one year w.e.f. 25.2.1994. Subsequently, the services of the respondents 7, 8 and 9 were regularised vide Notification dated 20.2.1998 the respondents 10 and 11 were given officiating promotion by Notification dated 25.11.1999.

By the above absorption/regularisation and officiating promotions of the respondents 5, 6, 7, 8, 9, 10 and 11, the services of the petitioner remained stagnant and they were not promoted although they are graduate in Agriculture Engineering. The petitioner therefore, assailed the said action of the respondents 1, 2 and 3 by not following the 1997 Rules.

The respondents 1, 2 and 3 have filed a common Affidavit covering all the facts of the writ petitions. The respondents 5, 6, 7, 8 and 9 are all B.Sc. Agriculture graduates who were regularised and absorbed as per the 1998 Rules against direct recruitment quota. The respondents 10 and 11 are B.Sc. (General) and having the requisite qualification they were promoted as Soil Survey Officer and Sub-Divisional Officer against the promotion quota as per their seniority in accordance with 1988 Rules.

Before proceeding further, it would be better to examine the grievances of the petitioners. In all the writ petitions, the prayer of the petitioners are limited for the purpose of setting aside and quashing the regularisation of respondent No. 5 by Notification dated 5.7.1996, absorption or respondent No. 6 by Notification dated 18.12.1997, regularisation of respondents 7, 8 and 9 by Notification dated 20.2.1998 the officiating promotion of respondents 10 and 11 by Notification dated 25.11.1999 and also for declaration of Sub-rule (c) of Rule 6 of the Nagaland Soil and Water Conservation Rules, 1997 as ultra vires.

In the Soil and Water Conservation department, two sets of rules have been made so far, namely :

"The Nagaland Soil and Water Conservation and Engineering Service Rules, 1988" and

"The Nagaland Soil and Water Conservation Service rules, 1997" (hereinafter called 1988 Rules and 1997 Rule).

The 1988 Rules came into force w.e.f. 23.5.1988. Although the same were framed in 1997, however, as per Rule 1(b), the 1997 Rules came into force w.e.f. 30.6.1999 the date of publication in the Nagaland Gazette. The relevancy of the said Rules relating to the present petitioners has to be decided first.

The regularisation /absorption and officiating promotions of the respondents 5 to 11 in this case was done within a period from 5.7.1996 to 25.11.1999. Therefore, insofar as the regularisation/absorption of the respondents 5, 6, 7, 8 and 9 on 5.7.1996, 18.12.1997 and 20.2.1998 are governed by the 1998 Rules. Insofar as the officiating promotions of respondents 10 & 11 are governed by 1997 Rules as the impugned order was issued on 25.11.1999 after the 1997 rules have become effective.

Rule 6 of 1998 Rules, provided as follows :

"METHOD OF RECRUITMENT.

(i) Recruitment to the Service after the commencement of these Rules shall be by the following methods :

(a) Director recruitment by selection in accordance with the provisions of the Rules.

(b) Promotion from amongst the members of the Service in the manner and to the extend laid down in the Rules.

The quota allotted to each source of recruitment under (a) and (b) of Sub-rule (1) and the minimum educational qualification standard and conditions for recruitment as mentioned in Schedule-II.

Notwithstanding anything contained in Sub-rule (II) if in the opinion of the Government the exigencies of the service so required, the Govt. may, by order, after consulting the Commission, if necessary adopt any method of recruitment to the service other then those specified in the said sub-rule.

If sufficient number of candidates for post pertaining to any source of recruitment in Sub-rule (I) above is not available in course of recruitment in a calendar year, the quota pertaining to that source shall lapse."

Clause 3 of Rule 6 clearly shows that the Government is given the power to adopt any method of recruitment other than specified in Sub-rule 2, and in doing so, the Government may consult the Commission if necessary. Consultation with the Commission is not mandatory, and it is the discretion of the Government whether to consult the Commission or not.

The regularisation of respondent No. 5 Shri Imlongehaba Chang was done by Cabinet decision, and the absorption of respondent No. 6 was done in terms of Clause 3 of Rule 6 of 1988 Rules after obtaining clarification from P &AR department, vide U.O. No. 14 dated 20.10.1997 after consultation with the NPSC, vide NPSC letter U.O. No. 95 dated 2.11.1997 and Cabinet approval dated 12.6.1997.

The respondents 7, 8 and 9 who were holding the post of Asstt. Project Officer under Jhum cultivation scheme and whose services were terminated on expiry of the scheme were again appointed as A.P.O. on contract basis. Their services were extended from time to time and ultimately by Notification dated 14.10.1998 their services were regularised in the post of S.D.O. (AC) under Jhum Control (State).

From the records, it shows that the petitioners had submitted their representations on 15.7.1992 and thereafter, represented to the respondents on several occasions for their promotion to the next promotional post. Inspite of their representations, the respondents authority has made the aforesaid regularisation and absorption of respondents 5 to 9. The first regularisation has been done on 5.7.1996 followed by absorption of respondent No. 6 on 18.7.1997 and regularisation of respondents 7, 8 and 9 by Notification dated 20.2.1998.

The petitioners, right from 1992 has made representations and although the aforesaid respondents were regularised/absorbed, they did not approach this Court for reddressal of their grievances. They have preferred to remain silent and approached this Court only in February, 2000. In such a situation, the Apex Court in the case of Roshan Lal and Others Vs. International Airport Authority of India and Others, in para 4 of the Judgment has held as follows :-

"We are afraid that it is rather late in the day for the petitioners to question the appointment of the respondents as Airport Officers (Operations). The respondents were appointed as Airport Officers in 1975 and the present writ petitions were filed in 1978. WE do not think we will be justified in reopening the question of the legality of the appointment of respondents as Airport Officers several years after their appointment. We also notice that the prayer in the writ petitions also is confined primarily to the seniority list and the consequences flowing from the seniority list."

The facts situation of the said case is fully applicable in the instant case. When the first regularisation of respondent No. 5 was made on 5.7.1996 and absorption of respondent No. 6 on 18.7.1997 and the regularisation of respondents 7, 8 and 9 was made on 20.2.1998, whereas, these writ petitions were filed in July, 2000. More than two years after the regularisation of respondents 7, 8 and 9 and more than four years after regularisation of respondent No. 5. The limited prayer of the petitions to set aside and quash the regularisation/absorption of respondents 5, 6, 7, 8 and 9 after the lapse of many years cannot be accepted as it would not be justified to reopen the question of legality of the action of the respondent authority at this belated stage.

As regards the officiating promotion of respondents 10 and 11, this Court by order dated 18.7.2000 has directed that the officiating promotion of the respondents 10 and 11 shall not be regularised without permission of this Court. As observed above, their promotion is governed by Rule 6 of the 1997 Rules. Sub-rule (b) of Rule 6 provides quote for such recruitment as per Schedule-II of the Rules. Since their services have not been regularised by order of this Court, their cases will be considered by the respondents authority in accordance with the Rules.

As regards the validity of Clause (c) of Rule 6 of 1997 Rules, the 1997 Rules were made in exercise of legislative power under Article 309 of the Constitution. The Rule making authority is competent to make the Rule, relaxing the method of recruitment and give power to the Government to deviate from the Rules and adopt any other method of recruitment by consulting the NPSC if necessary. Such a power given to the appointing authority is within the ambit of the Rule making authority and is not against the provisions of Article 14 and 16 of the Constitution.

Keeping in view the limited prayer of the writ petitioner in these writ petitions and for the reasons discussed and observed above, I am of the view that the impugned orders and Sub-rule (c) of Rule 6 deserves no interference by this Court. The writ petitions are therefore devoid of merit, and secondly the same and dismissed.

Considering the facts and circumstances of the case, I make no order as to costs.