High Court
Case Details
WP(C) 6255/2012 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) UJJAL BHUYAN J
Legal Reasoning
Heard Mr. S. Dutta, learned Counsel for the petitioner and Ms. T. Khro, learned Government Advocate, Nagaland for the respondents. 2. Case of the petitioner is that he is a Diploma Holder in Civil E ngineering. He was initially appointed as Draughtsman on adhoc basis by the Dire ctor of School Education, Nagaland. Thereafter, he was temporarily appointed as Draughtsman under the establishment of the Principal, Nagaland Polytechnic, Atoi zu. Petitioner successfully completed a diploma course known as Diploma in Techn ical Teaching in the Technical Teachers Training Institute, Calcutta, on being d eputed by the Government. 3. Thereafter, petitioner was promoted and appointed as Lecturer in Civil Engineering (Class-II gazetted) in the Khelhoshe Polytechnic, Atoizu. Whi le serving in that capacity, petitioner was transferred and posted as Controller of Examinations, State Council for Technical Education under the Directorate of Higher and Technical Education. According to the petitioner, the post of Contro ller of Examination and the post of Lecture are equivalent, having the same scal e of pay. 4. Thereafter, vide notification dated 13-10-2000 issued by the Com missioner and Secretary to the Government of Nagaland, Higher and Technical Educ ation Department, petitioner was sent on deputation for appointment as Project D irector, State Project Implementation Unit for the World Bank assisted Third Wor ld Technical Education Project in the State of Nagaland. It was stated that peti tioner would also hold the charge of Controller of Examinations till further ord ers. It was further stated that petitioner would continue to hold the charge of Project Director, State Project Implementation Unit during the duration of the p roject and would be liable to be reverted to the directorate on withdrawal/termi nation of the project. 5. Petitioner has stated that the State Project Implementation Unit has since been terminated on completion of the project. 6. On termination of the above project, petitioner was given offici ating promotion to the post of Principal subject to regularization by Department al Promotion Committee (DPC) vide notification dated 03-09-2008 issued by the Se cretary to the Government of Nagaland, Department of Higher and Technical Educat ion. Petitioner was posted as Principal of Institute of Communication and Inform ation Technology (ICIT), Mokokchung, which after reorganization of the Education Department, is now under the Directorate of Technical Education. 7. While the petitioner was serving as Principal, ICIT, Mokokchung, he was served with a show-cause notice dated 18-07-2012 issued by the Commissio ner and Secretary to the Government of Nagaland as to why his officiating promot ion should not be cancelled. It was contended that petitioner doesnot possess th e prescribed educational qualification for appointment as Lecturer or as Princip al of a polytechnic. The Up-gradation of Post Committee in its meeting held on 14-01-2011 did not recommend up-gradation of Project Director to that of Princip al, ICIT, Mokokchung as the current Project Director does not have the requisite qualification. 8. Petitioner submitted his reply dated 01-08-2012 to the show caus e notice dated 18-07-2012 requesting the authority to revoke the show cause noti ce dated 18-07-2012 with a further prayer not to cancel his appointment as Princ ipal, ICIT, Mokokchung. 9. Government of Nagaland in the Department of Higher and Technical Education decided to place the matter regarding regularization of service of of ficers who were serving on officiating basis under the Directorate of Technical Education before the DPC. In this connection, proposal of nine such officers inc luding the petitioner were forwarded to the Nagaland Public Service Commission o n 10-10-2012. Meeting of the DPC was held on 19-10-2012. DPC recommended regular ization of the officiating promotion of seven officers but did not recommend the case of the petitioner on the ground that there is no sanctioned post and the c andidate (petitioner) does not fulfill the AICTE norms for appointment as Princi pal. 10. Following the decision of the DPC, Commissioner and Secretary to the Government of Nagaland, Department of Higher and Technical Education issued order dated 12-11-2012 reverting the petitioner as Project Director and posting him in the Directorate of Technical Education. 11. Petitioner submitted representations dated 19-11-2012 and 13-12- 2012 before the said authority requesting him not to revert him. He pointed out that he would be retiring shortly and therefore at the fag end of his career, he may not be reverted as persons much junior to him have been given promotion as Principal of polytechnic. 12. As no decision was taken by the authority on his aforesaid two r epresentations, petitioner has approached this Court by filing the present writ petition. 13. This Court by order dated 20-12-2012 while directing the learned State Counsel to obtain necessary instruction, ordered maintenance of status-qu o as regards holding of the post of Principal, ICIT, Mokokchung. By virtue of th e status-quo order, petitioner continued as Principal, ICIT, Mokokchung. Status quo order was continued by various orders passed from time to time. On 02-04-201 3, learned State Counsel was directed to obtain instruction regarding possibilit y of accommodating the petitioner in his present post in view of his superannuat ion stated to be due on 31-05-2013. Ms. Khro, learned State Counsel submitted on instructions that it would not be possible to accommodate the petitioner in the present post any further. 14. the motion stage itself and today is fixed for delivery of order. Consequently, the matter was heard yesterday i.e. 09-04-2013 at 15. An affidavit-in-opposition has been filed by the respondents. St and taken is that officiating promotion of the petitioner to the post of Lecture r was never regularized by DPC. Petitioner does not have the qualification for t he post of Lecturer in polytechnic as the minimum qualification as per All India Council of Technical Education (AICTE) norms is first class in BE/B.Tech. It is , however, admitted that service rule of the Directorate of Technical Education has not been finalized. Officiating promotion of petitioner vide notification dated 03-09-2008 was made subject to regularization by DPC. DPC did not recomme nd regularization of the officiating promotion of the petitioner as there is no sanctioned post and as the petitioner does not fulfill the AICTE norms for appoi ntment as Principal. All polytechnics in the State are given recognition by AICT E and, therefore, not following AICTE norms will invite de-recognition of such i nstitute. Impugned order has been issued on the basis of the decision of DPC. Pe titioner was directed to hand over charge to the newly posted Principal but peti tioner instead filed the instant writ petition. Honouring the status-quo order p assed by this Court, Commissioner and Secretary to the Government of Nagaland, H igher and Technical Education Department issued notification dated 21-01-2013 ke eping in abeyance the impugned order dated 12-11-2012. However, the representati ons submitted by the petitioner were duly considered but rejected by a speaking order dated 11-01-2013. Petitioner has filed reply affidavit. Petitioner has contended t 16. hat State of Nagaland has not adopted AICTE norms and service rule is still in d raft form. Therefore, there is no minimum qualification fixed for Lecturers in p olytechnic. AICTE norms were notified only in the year 2010. Therefore, when the petitioner was appointed as Lecturer, AICTE norms were non-existent. Petitioner has also raised an objection that when the Court is examining the matter, the r espondents ought not to have taken a decision on the representations submitted b y the petitioner. 17. Mr. Dutta, learned Counsel for the petitioner submits that respo ndents have adopted a different yardstick in respect of the petitioner, subjecti ng him to hostile discrimination. According to him, two candidates who have been recommended for promotion as Principal of polytechnics, namely, Shri Longmetang and Shri Razou Vizo do not possess norms prescribed by AICTE in as much as both have second class BE degree. He, therefore, submits that petitioner has filed a n application for impleading the above two persons as respondents in the writ pr oceeding. He submits that the authorities have a closed mind towards the petitio ner which is reflected by rejection of his representations when the Court is in seisn of the matter. According to Mr. Dutta, since the petitioner would be retir ing on superannuation very shortly, which according to the respondents is due on 31-05-2013, at this fag end of his career, petitioner should not be made to suf fer the ignominy of being demoted to a lower post. 18. Opposing the submissions of learned Counsel for the petitioner, Ms. T. Khro, learned Government Advocate submits that in the notification dated 03-09-2008 itself whereby petitioner was given officiating promotion it was made clear that it was subject to regularization by DPC. Since DPC has not recommend ed regularization of the petitioner, the respondents were bound to issue the imp ugned order dated 12-11-2012 which is only consequential in nature. She submits that petitioner does not possess the minimum qualification prescribed by the AIC TE for the post of Principal and no relaxation can be made by the State Governme nt in this regard. She submits that writ petition is devoid of merit and is liab le to be dismissed. 19. Submissions made have been considered. 20. Short point for consideration is the correctness or other wise o f the decision of the DPC in not recommending regular promotion of the petitione r as Principal of ICIT, Mokokchung and the consequential reversion of the petiti oner. 21. As seen from the documents placed on record, petitioner was give n officiating promotion as Principal of ICIT, Mokokchung vide notification dated 03-09-2008 subject to regularization by DPC. DPC did not recommend regularizati on or regular promotion of the petitioner as Principal, ICIT, Mokokchung on two grounds- firstly, there is no sanctioned post of Principal, ICIT and secondly, p etitioner does not fulfill the AICTE norms for appointment as Principal. 22. Coming to the first ground that there is no sanctioned post of P rincipal, ICIT, it can only be said that question of recommendation for regulari zation or for regular promotion will arise only when there is a regular sanction ed post which is vacant. When post is not sanctioned, in other words, when there is no existing post, the question of any regularization or regular promotion to such non-existent post does not arise. Infact, in the absence of any existing v acant sanctioned post, the question of regularizing the officiating promotion of the petitioner as Principal, ICIT, Mokokchung did not arise as the same was cle arly outside the purview of the DPC. In the absence of any sanctioned post, the State Government could not have placed the case of the petitioner before the DPC . Again, since there is no post, the question of having or fulfilling the norms prescribed for such post does not arise. Only when the post is created and sanct ioned, it will come within the regular cadre which will require fulfillment of t he prescribed qualification by the holder of the post. In such circumstances, pe titioner’s present engagement as Principal of ICIT appears to be in the nature of a stop gap ad-hoc arrangement. Till such time the post of Principal, ICIT, Mo kokchung is created and sanctioned by the Government, the question of any recomm endation for regular promotion by the DPC does not arise. 23. In view of above, the decision of the DPC in not recommending re gular promotion of the petitioner as Principal of ICIT, Mokokchung is of no lega l consequence. Consequently, the impugned order of reversion dated 12-11-2012 wh ich is based on the decision of the DPC also becomes legally untenable. The same is accordingly quashed. Till such time the post of Principal, ICIT, Mokokchung is create 24. d and sanctioned, there cannot be any regular promotion to such non-existent pos t. 25. Petitioner has been given the designation and allowed to work as Principal of ICIT, Mokokchung since 03-09-2008 and he has continued as such for more than four and half years now. As according to the respondents, petitioner would be retiring on attaining the age of superannuation on 31-05-2013 which is a little more than a month away, the respondents may consider maintaining the pr esent arrangement till such time, as it would not be proper to replace an ad-hoc stop gap arrangement by another stop gap arrangement. 26. to bear their own cost. Writ petition is accordingly allowed. However, parties are left