Nagaland Assembly Secretariat Staff Association vs State of Nagaland and Another

W.A. Shishak, J.—The Petitioner is an Association known as the Nagaland Assembly Secretariat Staff Association represented by its President Shri K. Tep and General Secretary Shri A.E. Lotha.

The bone of contention is as regards the appointment in one post of Assistant Protocol officer in the Assembly Secretariat.

A few posts including one post of Assistant Protocol Officer were created vide Govt. letter dated 3rd July, 1997 addressed to the Secretary, Nagaland Legislative Assembly. The main relief sought in this Writ Petition is that while filling up the lone post of Assistant Protocol Officer the competent authority should consider all the eligible persons holding feeder post in the Assembly Secretariat such as Assistant Superintendent, Assistant Committee Officer, Assistant Transport Officer and Assistant Research Officer. Three posts including one post of Assistant Protocol Officer(Class-I Gazetted) were advertised on 23.7.1997. The scale of pay mentioned in the said advertisement for the post of Assistant Protocol Officer is Rs 2350-Rs. 4450/- p.m. Para 4 (b) of the said advertisement states:

A Candidate must have degree in any discipline from a recognised University.

Preference will be given to the person who have rendered 3(three) years of continuous service either in the Govt./Semi Govt. Departments.

The members of the Petitioner association submitted a representation to the Secretary, Nagaland Legislative Assembly, Respondent No. 2 herein stating among other things that the post of Assistant Protocol officer should be filled up from amongst the eligible persons of the serving candidates in the feeder posts from the Secretariat. It was also further stated that if favourable decision was not taken within 7 (seven) days they would seek legal action in a competent court. However, examinations for selection of candidate to fill up the said post and other posts were held on25.11.97. Results of the said examination however, have been stayed.

I have heard Mr. Taka Masa, learned Counsel for the Petitioner as well as Mr. A.R. Barthakur, learned Advocate General, Nagaland at length, Respondents have filed counter affidavit. I have pursued the said counter affidavit and all relevant documents filed on behalf of the parties. There is no dispute regarding the fact that the Recruitment Rules and the conditions of service of persons to be appointed to the secretarial staff of the State Legislature are to be regulated by the Legislature in terms of Article 187 of the Constitution of India. Recruitment Rules of the Legislative Assembly of Nagaland have been framed known as. The Nagaland Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules 1966.

Method of recruitment is prescribed under Rule 7 of the said Recruitment Rules. Rule 7 reads:

Method of recruitment :- (1) Recruitment to a post or class of posts may be made by anyone of the following method namely:

(a) by promotion of a person employed in the Secretariat.

(b) by permanent transfer or deputation of a person serving outside the Secretariat in connection with the affairs of the Union or of a state, and

(c) by direct recruitment;

(2) The speaker may, by order, from time to time,

(a) Specify the method of methods, by which a post or class of posts, may be filled;

(b) determine the proportion of vacancies to be filled by each method; and

(c) in case of recruitment by promotion specify the class of officers who, and the conditions subject to which they shall be eligible for such promotion.

In terms of Rule 7(2) as stated above the speaker may by order from time to time specify the method or methods by which a post or Class of posts may be filled. He may also determine the proportion of vacancies to be filled by each method. Further in terms of above Rule, the speaker may also issue order from time to time and specify in case of recruitment by promotion, the class of officer and the conditions subject to which they shall be eligible for such promotion. Mr. Taka Masa, learned Counsel for the Petitioner submits that no order as such has ever been issued by the speaker of Nagaland Legislative Assembly in exercise of power vested in him under Rule 7(2). According to Mr. Taka Masa, in such a situation the only possible provision under which the post of Assistant Protocol Officer could have been filled up is as envisaged under Rule 12 of the said Rules, although in such event also the Speaker of the Assembly has not issued any order in consultation with the Finance Department, Rule 12 runs as under:

Other condition of service:- In respect of all other matters regulating the conditions of service of officers and all other persons serving in the Secretariat for which no provision or insufficient provision has been made in these rules they shall be governed by such rules as are applicable to the officers and other persons of the corresponding rank in Nagaland Government Secretariat or corresponding posts as specified in the second schedule annexed to these rules, subject to such modifications, variations or exceptions, if any, in such rules as the Speaker may after consultation with the Finance Department, by order from time to time specify.

Mr. Taka Masa refers me to Schedule 2 of the said Rules and states that the post of Superintendent in the Assembly Secretariat is equal to the post of Assistant Protocol Officer in as much as the same scale of pay i.e. Rs 2350/- -Rs. 4450/- has been prescribed and that this fact as contended on behalf of the Petitioner has not been controverted on behalf of the Respondents.

The Petitioner contends in para 11 of this writ petition that the feeder posts to the post of Assistant Protocol Officer are Assistant Superintendent/Assistant Committee Officer/Assistant Transport officer/Assistant research officer, Class-II Gazetted in the scale of pay of Rs. 1800-Rs. 3700/- p.m. It is contended that some of the members of the Petitioner Association have already put in more than ten years in the feeder grade and most of them are now over 35 years of age and therefore, if the advertisement which prescribes the age as not less than 18 years and not more than 30 years as on 1.1.97 is to be accepted, there is absolutely no scope for the members of the Petitioner Association for consideration for the post of Assistant Protocol Officer. Therefore, it is submitted that in such a situation the members of the Petitioner Association would suffer irreparable loss and hardship. And in this view of the matter it is submitted that impugned advertisement is most unreasonable and uncalled for inasmuch as none of the serving officers of the Secretariat would have any benefit for consideration in the matter of filling up the post of Assistant Protocol Officer. The main contention of Mr. Taka Masa is that since the Speaker of the Legislative Assembly has not specified by issuing order as to the method and manner in which the post of Assistant Protocol officer which was a newly created post should be filled up, the issuance of advertisement is of no consequence. At the same time it has also been submitted on behalf of the Petitioner that in fact the officers of the Secretariat who are holding the feeder posts have on various occasions been assigned protocol duties and they have done well. Therefore, it is submitted that there is no reason why the post should not be filled up from amongst the eligible persons who are serving in the Secretariat.

Mr. A.R. Barthakur, learned Advocate General, Nagaland appearing on behalf of the Respondents draws my attention to paragraph 3 of the counter affidavit filed on behalf of the Respondents. With reference to Article 187 of the Constitution of India it is stated in the counter affidavit that the Nagaland Legislative Assembly Secretariat is an autonomous and independent institution and that the said Legislative Assembly Secretariat has its own Recruitment and conditions of service Rules of 1966 to which reference has already been made above. The counter affidavit further states" As per Rule 7 of the above Rules, the Speaker, Nagaland Legislative Assembly has been specifically vested with the power very clearly to determine the proportions of vacancy to be filled up by promotion, permanent transfer, deputation, direct recruitment." The counter affidavit further states that Rule 12 relied upon by the Petitioner is only subservient to Rule 7 and as such Rule 12 is not mandatory in nature. It is Mr. Taka Masa''s submission that there is failure of exercise of power under Rule 7(2) by the Speaker of the Legislative Assembly. However, as against this Mr. Barthakur''s submission is that Rule 7 has been exercised properly by the Speaker by the very fact of advertisement which was issued by the Secretariat on 23rd July, 1997. According to Mr. Barthakur it is not necessary for the Speaker to issue a separate order in terms of Rule 7(2) as regards the manner or method of recruitment to the post of Assistant Protocol officer. Referring to Govt. file which has been produced before me Mr. Barthakur submits that the Hon''ble Speaker had already directed that the post be advertised by his order dated 15.7.97. According to Mr. Barthakur this is sufficient compliance with the requirement of the provision of Rule 7 of the said Rules. Another submission of Mr. Barthakur is that the action of the Respondents is bonafide and no malafide can be imputed and the whole exercise has been made in public interest. It is also further submitted that the members of the Petitioner Association could have applied themselves for the post as age in respect of serving candidates is relaxable by five years.

It is also further stated in the counter affidavit that since the post in question is a new one, the Speaker decided to fill this post by direct recruitment as there is no feeder cadre for the post of Assistant Protocol Officer. It is also further stated that the post of Assistant Protocol officer is not a promotional post.

On careful perusal of the counter affidavit filed on behalf of the Respondents, it appears to me that the whole exercise of the Speaker has purportedly been made under Rule 7 of the Recruitment and conditions of Service rules of 1966. Therefore, the question is whether the very fact of advertisement issued under the direction of the Speaker should be deemed to be in compliance with the provisions of Rule 7 of the said Rules.

It has also been submitted by Mr. Taka Masa that any noting in the Government file cannot be said to be an order. According to him there must be a specific order in compliance with statutory Rules, may be in terms of the desire or direction of the Speaker of the Nagaland Legislative Assembly, I have carefully perused the Government file concerning the advertisement no reason whatsoever has been given as to why the post of Assistant Protocol officer should be filled up by direct recruitment. If there is any compelling reason for doing so, such reason, in my opinion should be recorded.

On careful perusal of Rule 7(2) of the said Rules I am of the view that specific order should be issued in compliance with the Rule 7(2). In other-words, the very fact that advertisement has been issued under the direction of the speaker cannot be said to have been in compliance with Rule 7(2) of the said Rules. In this view of the matter Mr. Barthakur''s submission that Rule 7 does not say that any order issued under this provision would be a speaking order and therefore the issuance of advertisement under the direction of the speaker should be deemed to be in compliance with Rule 7 is not acceptable.

I have carefully perused Rule 12 also. It appears Rule 12 has been incorporated to meet a peculiar situation. One difficulty that may arise is that in order to take re-course to Rule 12 also the Speaker is to issue order regarding modifications, variations or exceptions to Rule 12, if any and such is to be done after consultation with the Finance Department. No such order has been issued by the Speaker under Rule 12. What is otherwise clear is that in terms of Nagaland Secretariat Service Rules the post of Superintendent being of the equal rank with Assistant protocol officer the officers who are serving as Assistant Superintendent/Assistant Committee officer/Assistant Transport officer/Assistant Research Officer could have been considered for promotion to the post of Assistant Protocol officer.

In the result, in the premises aforesaid, I am of the view that the impugned advertisement dated 23rd July, 1997 is not sustainable in so far as the post of Assistant Protocol Officer is concerned. Accordingly, it is set aside for non-compliance with the provision of Rule 7 of the said Rules. Consequently the test which was conducted in November, 1997 shall stand quashed. The Respondents are directed to make the recruitment strictly in terms of and in compliance with Rule 7 of the Nagaland Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1966.

With the above directions and observations this petition is disposed of.