R. Kuovio Korhuo vs State of Nagaland and Others

H.K. Sema, J.—The Petitioner was appointed as Lower Division Assistant in the Secretariat at Kohima on 4th June 1966 and later confirmed in that post. In 1965, the Petitioner was promoted to the post of Upper Division Assistant. By an order dated 9th December, 1971, the Petitioner was further promoted to officiate as Assistant Superintendent in the same Secretariat, Home Department with effect from 22.11.71. He was confirmed in the post of Asst. Superintendent by an order dated 27th June, 1986 with effect from 1.4.76.

Thereafter, by an order dated 13th January, 1979, the Petitioner was allowed to officiate temporarily to the post of Superintendent (Class II Gazetted) with effect from 3.9.78. The 5th and 6th Respondents whose seniority has been questioned in this writ petition were confirmed Superintendents in the Work and Housing Directorate and Education Directorate respectively, were appointed to the post of Superintendent in the Nagaland Civil Secretarial with effect from the date of their assumption of charge in the Secretariat by an order dated 22nd June, 1979. Pursuance to the aforesaid appointment the 5th Respondent joined the post in the Secretariat on 2.7.79 and the 6th Respondent joined the post in the Secretariat on 30.6.79.

By a notification dated the 11th May, 1981 the Petitioner''s officiating promotion to the post of Superintendent was regularised along with the others on the recommendation of the Selection Committee with effect from 3.9.78. the date on which the Petitioner was promoted to the post on officiating capacity. The aforesaid notification was superseded subsequently by another notification dated 29th June, 1984 and the regularisation of the Petitioner service along with others was made effective from 9.2.81 dated on which the Selection committee held its sitting. Being aggrieved the Petitioner made several representation stating the grievances of the Petitioner without any success. Hence this petition.

We have heard Miss C. Jajo, learned Counsel for the Petitioner and Mr. I. Jamir, learned Senior Govt. Advocate for Respondent Nos. 1st, 2nd and 3rd and Mr. R. Iralu, learned Counsel for the 4th Respondents.

It was contended by Miss C. Jajo, learned Counsel for the Petitioner that as the Petitioner''s officiating promotion to the post of Superintendent was regularised on the recommendation of the Selection Committee with effect from 3.9.78 by a notification dated 11th May, 1981, there was no occasion for the Respondents to issue another notification dated 29th June, 84 superseding the earlier notification and thereby regularising the officiating promotion of the Petitioner to the post of superintendent with effect from 9.2.81, the date on which the selection committee held its meeting without any reason. The thrust of the Petitioner''s case claiming seniority over the 5th and 6th Respondents is that when the Selection Committee held its sitting on 2.12.78 to consider the case of the 5th and 6th Respondents along with others, the Petitioner was eligible for consideration for the post of Superintendent, but for the erroneous interpretation of Rule 9(1) of the Nagaland Secretariat Services Rules, 1968 (hereinafter referred to as the Rules), the Petitioner''s case was not considered by the Selection Committee on 2.12.78. The further case of the Petitioner is that, had the Petitioner''s case been considered by the Selection Committee along with 5th and 6th Respondents the Petitioner has to be placed above the 5th and 6ih Respondents in terms'' of Rule 28(2). It is further argued that even otherwise the Petitioner having been promoted on officiating basis to the post of Superintendent with effect from 3.9.1978 and the case to the 5th and 6th Respondents was recommended by the Selection Committee in its meeting held on 2.12.78 and they joined the posts on 2.7.79 and 30.6.79 respectively, the Petitioner is senior to the 5th and 6th Respondents. They joined the posts on 2.7.79 and 30.6.79 respectively, the Petitioner is senior to the 5th and 6th Respondents.

Two important questions arise in this case for our consideration is that (1) whether the Petitioner was eligible for consideration for the promotion to the post of Superintendent by the Selection Committee in its meeting held on 2.12.78 in terms of Rule 9(1) of the Rules and (2) if so, whether the 5th and 6th Respondent shall be junior to the Petitioner in terms of Rule 28(2).

For our present purpose to decide the above two issues Rule 9(1) and Rule 28(2) of the said Rules are relevant. Rule 9 deals with the recruitment to the post of Superintendent and Rule 28(2) deals with the inter se seniority of the Superintendents appointed under Rule 9(1) and Rule 9(2). We now proceed to examine Rule 9 of the Rules. We shall consider Rule 28 later at the Appropriate stage. Rule 9 is extracted in extenso:

Superintendent Recruitment to the post of Superintendent shall be made:

By promotion on the basis of Selection from amongst the confirmed members of the Nagaland Secretariat Subordinate Service holding the post of Assistant Superintendent continuously for not less than three years at the time of the year in which the selection is made.

By selection from amongst the permanent superintendents in the offices of the Heads of Deptt. Under the Government of Nagaland who are of outstanding merit and ability and who have completed not less than five years continuous service as Superintendent.

Not more than 70% of the vacant posts of Supdt. which occur in a calendar year shall be filled in by promotees from amongst the confirmed members of the Nagaland Secretariat Subordinate Service holding the posts of Asstt. Superintendent vide Rule 9(1)

Not more than 30% of the vacant posts of superintendent which occur in a calendar year shall be filled in by promotion of those confirmed and efficient Superintendents on transfer from the offices of the heads of Departments vide Rule 9(2).

From the language used in Rule 9(1), it clearly posits that the Rules consists two parts first the incumbent must be confirmed members of the Nagaland (sic) subordinate Service and secondly at the time of selection he must be ding the post of Asstt. Superintendent continuously for not less than 3 years.

Now let us examine whether the Petitioner fulfilled these two criterias laid down under Rule 9(1) for recruitment to the post of Superintendent on 2.12.78 en the Selection Committee held its sitting. There is no dispute that the Petitioners confirmed members of the Nagaland Secretarial Subordinate Service. So, the Petitioner fulfilled first criteria. The Petitioner was promoted to officiate to the post Asstt. Superintendent in the Secretarial by an order dated 9th December, 1971 the effect from 22nd November, 71. Therefore, the Petitioner was holding the post Asstt. Supdt. continuously for not less than 3 years at the time when the Selection committee held its silting on 2.12.78 for selection to the posts of Superintendent,, therefore, fulfilled second criteria also.

Minutes of the Selection Committee constituted under Rule 18 of the Rules its meeting held on 2.12.78 has been annexed in this writ petition as Annexure (sic) We have gone through the entire minutes minuted by the Selection Committee its meeting held on 2.12.78. In para-2 of the said minutes, it is Stated that as per (sic) (meaning Rule 9(1) Asstt. Superintendents not confirmed in the grade cannot be considered for promotion to the post of Superintendent in the Secretariat, re lies the wrong. As said earlier Rule 9(1) does not stipulate for promotion to the post of Superintendent from amongst the confirmed Asstt. Superintendents. What the rule postulates was that the (sic) must be confirmed members of the Nagaland Secretariat Subordinate Service and holding the post of Asstt. Superintendents continuously for not less than 3 years at the time of the year in which the selection is made. It is because of this erroneous interpretation of Rule 9(1) the Petitioner''s case was illegally not considered by the Selection Committee in its inciting held in 2.12.78. This is exactly the Petitioner''s case. At the time when the Selection Committee constituted under Rule 18 held its silting on 2.12.78 there were 11 posts of Superintendent lying vacant out of which 8 posts were reserved for promotion of Asstt. Superintendents in the Secretariat in terms of Rule 9(3) and 3 posts were reserved for promotion from amongst the confirmed Superintendents from Heads of the Departments in terms of Rule 9(4). Out of 8 vacant posts from the Secretariat quota only 4 confirmed Asstt. Superintendents were considered by the Selection Committee. Therefore, there were still 4 existing vacancies and the Petitioner''s chance stood at Sl. No. 6 in the existing vacancies of 8 posts but because of the erroneous interpretation of Rule 9(1) by the Selection Committee, the Petitioner''s case was shut out from the zone of consideration. It will be pertinent to mention herein that the case of the 5th and 6th Respondents was recommended by the Selection Committee in the said meeting held on 2.12.78. It is, therefore, the case of the Petitioner that, had the Petitioner not illegally shut out from the zone of consideration, the Petitioner and the 5th and 6th Respondents ought to have been appointed in the same year and in a particular cadre and in that event, the Petitioner ought to have been senior to the 5th and 6th Respondents in terms of Rule 28(2). This argument in our opinion is well founded and must prevail. As said earlier, the Petitioner had fulfilled requisite conditions to be considered for promotion to the post of Superintendent by Selection Committee when it meets on 2.12.78. First, he was a confirmed member in the Nagaland Secretariat Subordinate Service secondly he was holding the post of Asstt. Superintendent continuously for more than 3 years and lastly he had no adverse remarks in his A.C.Rs. By not considering the case of the Petitioner the Petitioner was denied equal opportunity in the mailer of employment and he was thus treated un-equal in equally circumstanced. The Petitioner should not made to suffer for no fault of his.

Respondents 1 to 3 filed affidavit in opposition, Tie case of the Respondents is taken in paragraphs 6 And 7. In a nut shell, it is stated that the Petitioner''s service as Asstt. Superintendent was confirmed by an order dated 27.6.86 with effect from 1.4.76 and thus the Petitioner was not eligible for consideration to the post of Superintendent on 2.12.78 in terms of Rule 9(1) of the Rules. We have already held that the interpretation of Rule 9(1) given by the Selection Committee was erroneous, It is not the ease of the Respondents that there was no post in existence it was clearly admitted that of the relevant time the 11 vacant posts of the Superintendent were in existence, out of which 8 posts were reserved for the Nags land Secretariat Service and 3 posts were reserved for the confirmed Super intended from the other Heads of the Departments, It is also not disputed that out of 8 posts only 4 posts were filled up from Secretariat quota and the 4 vacancies were still in existence and that dip Petitioner was within the Zone of consideration and in that view of the matter we hold that the Petitioner''s case shall be (teemed to have been considered and recommended by the Selection Committee in its sitting held on 2.12.78, on which date the case of the 5th and 6th Respondents were also considered and recommended.

Before we proceed to examine Rule 28 of the Rules, we may refer to Rule 9 of the Rules once more. The Rules stipulate two methods of recruitment to the posts of Superintendents in the Nagaland Secretariat Service. The method prescribed by the Rules was by promotion on the basis of selection from amongst the confirmed members of the Nagaland Secretariat Subordinate Service holding the post of Asstt. Superintendents continuously for not less than 3 years and also by selection from amongst the permanent Superintendent in the offices of the Heads Of the Departments who are of outstanding merit and ability and who have completed not less than 5 years continuous service as Superintendent. Rule further stipulates that 70% of the vacant posts of the Superintendent has to be filled up by promoters from amongst the confirmed members of the Nagaland Secretariat Sub-ordinate Service etc. and 30% of the vacant posts to be filled up in by promotion of the confirmed and efficient superintendents from the Heads of the Departments. It thus shows that the Rule contemplates recruitment from two sources on the basis of quota system, 70% for those confirmed members of Nagaland Secretariat Subordinate Service etc. and 30% of the vacant posts for the confirmed Superintendents of the Heads of the Departments.

In the back ground of the provisions of Rule 9 of the Rules we now proceed to examine the provision of Rule 28 of the Rules. Rules 28 deals with the seniority which is extracted as under:

Seniority

The seniority of members of the services recruited in any year in a particular cadre shall be in the order in which their names are arranged in the select list approved Under Rule 20.

The seniority of the confirmed Superintendents from the offices of the, Heads of the Departments appointed under Rule 9(2) shall be all junior to the promotees from the members of the Nagaland Secretariat Sub-ordinate Service in any year iii a particular cadre and their seniority shall be in the order in which their names are arranged in the select list and approved under Rule 20

Provided further that if a probationer fails to be confirmed even on completion of two years from the date of his being placed on probation, he shall lose his original seniority and his seniority shall be fixed at the top of the probationers of the year previous to the year of his confirmation.

It is thus adequately clear from the language used in Rule 28(2) of the Rules that the Rules contemplates a combined seniority list of Superintendents drawn from two sources as referred to under Rules 9(1) and (2) and that in computing the seniority of the candidates from two sources the promotees from the members of the Nagaland Secretariat Subordinate Service are to be placed above the confirmed. Superintendents from the offices of the Heads of the Departments, appointed under Rule 9(2), in any year in a particular cadre and their seniorities shall be in the order in which their names are arranged in the select list and approved under Rule 20. We have already held that the case of we Petitioner for promotion to the post of Supdt. shall be deemed to have been considered and recommended by Selection Committee in its meeting held on 2.12.78 wherein the cases of the 5th and 6th Respondents were also considered and recommended. If that be the case, the Petitioner and the 5th and 6th Respondents were appointed in the same year in a particular cadre i.e. the cadre of the Superintendents and therefore, Rule 28(2) will come into play.

The result is that the Petitioner shall be senior to the 5th and 6th Respondents treating the Petitioner''s case as selected by Selection committee on 2.12.78.

Before we part with the record, we expressed our displeasure the master in which the department has dealt with the present case. The Nagaland labile Service Commission has been arrayed as the 4th Respondent in this writ petition. A detailed affidavit-in-opposition has been filed by the 4th Respondent making its position very clear. Mr. R. Iralu, learned Counsel for the 4th Respondent took pain and drawn our attention to the various correspondences taken place between the 4th Respondent and the Respondent Government at different levels. From the various annexures, annexed in the affidavit-in-opposition, we found that the Commission declined to approve the select list before examining all the documents as per provisions of the Rules. Avoiding the details, Rule 18 of the Rules prescribed the Constitution of the Selection Committee Rule 19 lays down the detailed procedure of the selection for recruitment by promotion and selection to their services. Rule 20 speaks about reference to the Commission. Amongst others, it says that the Commission shall consider the list of names along with other documents received under Rule 19. From the various correspondences between the Commission and the Government annexed in this affidavit-in-opposition on behalf of the 4th Respondent it transpired that the documents submitted under Rule 19 and considered by me Selection Committee was not forwarded to the Commission for its consideration along with the list of names. To cite one instance we are tempted to quote one paragraph of letter 22nd December, 1978 written by Chairman (N.P.S.C.) to the Special Secretary (P&AR)(Annexure G-2) to the counter filed by the 4th Respondent.

In the present case of recruitment to the posts of Superintendents in the Secretariat, the possibility of exclusion of qualified and deserving candidates may not be ruled out totally unless all the documents are made available for a comparative study.

Obviously the paragraph referred to above was referring to the Selection Committee held on 2.12.78. It is needless to say that more than once this Court as well as the Apex Court had held that Rules are framed to be followed and not to be violated.

In the midst of the argument of this ease, it is submitted by Mr. I, Jamir, learned Senior Govt. Advocate that the present case is squarely covered by the decision of this Court in Civil Rule No. 54(K)89 decided on 27.9.91. We are unable to accept the submission simply because the facts in the present case are entirely different from the facts of that case. In that case we dismissed the petition on the ground that the Petitioner and the 5th and 6th Respondents were not appointed in the same year and they were not in the same batch and in that view of the matter Rule 28 of the Rules was not dealt with.

As the Petitioner has succeeded on this ground alone, it may not be necessary for us to go into the other grounds urged before us.

For the aforesaid reasons, we allow this petition. The Respondents are directed to re-arrange the impugned seniority list placing the Petitioner above the 5th and 6th Respondents herein, taking the Petitioner''s case as being selected by the Selection Committee in its meeting held on 2.12.78. We further direct that this order shall be implemented within a period of two months from today.

Petition allowed. No order as to costs.