High Court
Case Details
WA 354/2012 BEFORE THE HON’BLE MR JUSTICE I A ANSARI THE HON’BLE MR JUSTICE P K MUSAHARY
Legal Reasoning
Aggrieved by the judgement and order, dated 21.11.2012, passed by a lear ned Single Judge of this Court, in WP(C) No. 94(K)/2012, whereby the learned Sin gle Judge has held the respondent No. 1 herein, namely, Er. Thungpemo, as senior to the appellant herein in the post of Project Officer and has, therefore, set aside and quashed the Notification, dated 18.04.2012, which formed the subject-m atter of controversy in the writ petition, made under Article 226 of the Constit ution of India, this appeal has been preferred. 2. We have heard Mr. S. Dutta, learned counsel for the appellant (who was p rivate respondent No. 5 in the writ petition), and Mr. P. Khatoniar, learned cou nsel, appearing for respondent No. 1 in the appeal, who was the writ petitioner in the writ petition. None has appeared on behalf of the State respondents. 3. ut as under: The material facts, leading to this appeal, may, in a nutshell, be set o (i) The respondent No. 1 herein (who is hereinafter referred to as t he ’private respondent’) holds a degree in civil engineering. On being selected by Nagaland Public Service Commission (in short, ’NPSC’), the private responden t was appointed, vide Notification, dated 15.12.2000, to the post of Junior Engi neer (Civil), Class-II (Gazetted) under the Department of Power, Government of N agaland. Later on, an order was issued, on 13.07.2004, appointing the private r espondent, on deputation, in the post of Project Officer, Non Conventional Energ y (in short, ’NCE’), under the Rural Development Department, Government of Nagal and, for a period of one year. The deputation of the respondent No. 1 was, howe ver, kept on being extended from time to time and, by Notification, dated 14.09. 2011, he, along with two others, was, eventually, absorbed under the NRE departm ent, w.e.f. 26.05.2011, in the regularly sanctioned post of Project Officer. (ii) Initially, the administration of the New and Renewable Energy De partment (in short, ’NRE department’) was under the Rural Development Department ; but, in the month of July, 2009, the Directorate of Non Conventional Energy wa s created under the Rural Development Department. (iii) As far the appellant herein is concerned, he was appointed as a Project Officer, on contract basis, under a Centrally Sponsored Scheme of the Ru ral Development Department, Government of Nagaland. From time to time, the cont ractual appointment of the appellant herein was renewed and, lastly, by Notifica tion, dated 22.11.2011, the service of the present appellant, whose original app ointment was contractual in nature, came to be regularised as Project Officer, w .e.f. 26.05.2011, under the Department of NRE, Government of Nagaland. 4. We may briefly pause here to point out that though absorbed/regularized by two different Notifications, namely, Notification dated 14.09.2011, and Notif ication dated 22.11.2011, which we have mentioned above, the fact of the matter remains that both, the appellant as well as the private respondent, stood perman ently absorbed and regularized in the posts of Project Officer under the NRE Dep artment, Government of Nagaland, w.e.f. the same date, i.e., 26.05.2011. Neithe r the correctness nor the legality of the absorption of the private respondent i n the deputation post of Project Officer and/or regularization of the present ap pellant in the regularly sanctioned post of Project Officer was ever disputed or questioned. 5. One has to, therefore, proceed on the premises that both, the appellant as well as the private respondent, came to be regularly appointed, as Project Of ficers, under the NRE Department, w.e.f. 26.05.2011. 6. The question, however, which arose, in the writ petition, was as to who, between the two, namely, the appellant herein and the private respondent, was s enior in the post of Project Officer inasmuch as a Notification, dated 18.04.201 2, was issued by the NRE Department granting officiating promotion to the presen t appellant as Assistant Director subject to regularization by the Departmental Promotion Committee under the NRE Department, Government of Nagaland. It was th is Notification, dated 18.04.2012, which came to be challenged by the private re spondent herein by way of writ petition on the ground that since his selection t o the post of Junior Engineer was regular in nature, whereas the present appella nt’s initial appointment was contractual in nature, he (private respondent) ough t to have been treated as senior to the appellant. It is this contention, which has prevailed upon the learned Single Judge and having, thus, concluded that th e private respondent is senior to the present appellant, the impugned Notificati on, dated 18.04.2012, has been set aside and quashed. 7. While considering the present appeal, what needs to be borne in mind, as already indicated above, is that neither the legality and correctness of the ab sorption of the private respondent, on regular basis, in the post of Project Off icer, nor the regularization of the service of the present appellant, in the pos t of Project Officer, was ever questioned by any of the parties to the present a ppeal. We have to, therefore, proceed, if we may reiterate, on the basis of the fact that the appellant as well as the private respondent have been regularly a ppointed, in the post of Project Officer, w.e.f. 26.05.2011. Thus, the date of absorption, on deputation, of the private respondent and the date of regularizat ion of the appellant being one and the same, who, between the two of them, is se nior was the question, which arose in the writ petition and which has also been raised in the present appeal. 8. While considering the question, posed above, it needs to be noted that, according to the Office Memorandum, dated 12.08.1975, issued by the Government o f Nagaland, Home Department, Administrative Reforms (O & M) Branch, seniority of a deputationist shall be counted from the date on which the decision is taken t o absorb the deputationist in the deputation post meaning thereby that in terms of the Office Memorandum, dated 12.08.1975, aforementioned, seniority of a deput ationist shall be counted from the date the Government decides to absorb the dep utationist in the deputation post. Consequently, in the light of the Office Mem orandum, dated 12.08.1975, the previous service of a deputationist shall not be counted, while fixing the seniority of such a deputationist. This decision of t he Government was, however, partially modified by subsequent Office Memorandum, dated 27.03.2001, issued by the Government of India, Ministry of Personnel, Publ ic Grievances & Pensions, Department of Personnel and Training, adopted by the G overnment of Nagaland, to the effect that though, ordinarily, the seniority of a deputationist shall be counted from the date of taking of the decision of his a bsorption in the deputation post, his past services, if any, rendered in the sam e or equivalent grade, on regularly basis, in his parent department, shall be ta ken into account, while fixing his/her seniority. Yet another Office Memorandum was issued, on 21.07.2004, by the Government of Nagaland, Personnel and Adminis trative Reforms Department (Administrative Reforms Branch), laying down that the seniority of a person, who is absorbed in a deputation post, shall be counted f rom the date of such absorption only. This Office Memorandum, dated 21.07.2004, makes it explicitly clear that the seniority of a deputationist, in a deputatio n post, shall be counted from the date of his/her absorption only (i.e., from th e date of Cabinet approval). What logically follows from the above discussion is that the private res 9. pondent was, initially, appointed as a Junior Engineer in the Department of Powe r, Government of Nagaland, and, then, he was taken, on deputation, to the post o f Project Officer in the Rural Development Department, he was, admittedly, broug ht, on deputation, to a higher post, namely, the post of Project Officer, from t he lower post, namely, the post of Junior Engineer. 10. Thus, on absorption of the private respondent, in the deputation post of Project Officer, w.e.f. 26.05.2011, his seniority was required to be counted w. e.f. 26.05.2011. 11. Similarly, as far as the present appellant is concerned, his seniority w as also to be counted, on regularization of his service, in the post of Project Officer, w.e.f. 26.05.2011. The reference, therefore, made, in this regard, by Mr. S. Dutta, to the case of Director, Central Bureau of Investigation and anoth er vs. D. P. Singh, reported in (2010) 1 SCC 647, is not incorrect inasmuch as i t has been laid down therein that seniority of a deputationist will be counted f rom the date of his absorption. To the same effect is the decision of this Cour t, in Fineson Pojar and ors. vs. State of Nagaland and ors., reported in 2010 (1 ) GLT 338, which was rendered by one of us (Hon’ble P. K. Musahary, J). 12. In short, what emerges from the above discussion is that the seniority o f the appellant as well as the private respondent were to be counted from the da te of their absorption/regularization w.e.f. 26.05.2011. What is, now, imperative to note is that the appellant is, admittedly, o 13. lder than the private respondent and this aspect was pointed out during the cour se of hearing of the writ petition and has been taken note of by the learned Sin gle Judge. However, what appears to have escaped the attention of the learned S ingle Judge is that when two persons are appointed, on regular basis, by way of absorption or otherwise, in a given post, with effect from the same date, the ol der between the two would be treated as senior to the other. The reference, in this regard, made to the case of D. P. Das vs. Union of India and others, report ed in (2011) 8 SCC 115, is wholly correct inasmuch as the Supreme Court has clea rly held, in D. P. Das (supra), that as the seniority of the officers had been r ecommended on the same date, their respective seniority must be decided by their respective age. 14. Situated thus, there can be no escape from the conclusion that as far as the present appellant is concerned, he is, and shall be, regarded, for all purp oses, senior to the private respondent in the post of Project Officer and since he is senior, there was, ordinarily, no impediment in giving him officiating pro motion to the post of Assistant Director. What has, however, been brought to our notice by Mr. Khatoniar, learned 15. counsel, is that the State respondents, in their affidavit-in-opposition, while justifying the officiating promotion of the appellant, have stated, at paragraph 12, that the State respondents had taken conscious decision to grant officiatin g promotion to the present appellant not only on the basis of the fact that the appellant was senior to the private respondent, but also on the basis of merit. 16. Taking a cue from the above averments made in the affidavit-in-oppositio n of the State respondents, Mr. Khatoniar, learned counsel, submits that the com parative merit of the present appellant and the private respondent was never dec ided and, hence, the stand of the Government that the appellant has been granted officiating promotion to the post of Assistant Director not merely because of t he fact that he is senior to the private respondent, but also because of his mer it cannot be sustained and that the private respondent’s case ought to have been considered. Though, at the first blush, the argument of Mr. Khatoniar appears to be attractive, what needs to be borne in mind is that there is, admittedly, n o Rule or Executive instructions or Departmental Policy or Guidelines for promot ion from the post of Project Officer to the post of Assistant Director and, in t he absence of any such policy decision, promotion shall, ordinarily, be given on the basis of seniority unless the State Government lays down the criteria for p romotion. 17. While granting officiating promotion to the appellant, the Government wa s required to promote him on the basis of seniority provided that he was not fou nd unfit. The stand of the State respondents shows that the officiating promoti on to the appellant has been given not merely on the basis of seniority, but als o on the basis of suitability. The moment, therefore, the suitability of an off icer is required to be considered, the question of merit will invariably arise. To some extent, therefore, the grievance of the private respondent cannot be sa id to be wholly untenable in law. The appropriate course of action, in the abse nce of any further guideline(s), which may be issued by the State respondents, t he promotion to the post of Assistant Director, from the post of Project Officer , shall be on the basis of seniority-cum-suitability and if the appellant is fou nd suitable, he needs to be promoted and the case of the private respondent can be considered for promotion if, and only if, the appellant, though senior, is fo und unsuitable for promotion to the post of Assistant Director. Because of the fact that the appellant is senior to the private responde 18. nt and the State respondents have found him suitable, his officiating promotion, granted by Notification, dated 18.04.2012, ought not to have been interfered wi
Decision
th in the writ petition. Because of what have been discussed and pointed out above, we set aside 19. the decision reached in the writ petition, whereby the impugned Notification, da ted 18.04.2012, has been interfered with. We accordingly restore the Notificati on, dated 18.04.2012, aforementioned. Considering, however, the fact that the officiating promotion to the pre 20. sent appellant was granted as far back as on 18.04.2012 and more than a period o f one year has passed, the Government has to take a decision as to whether it sh all fill up the post of Assistant Director or not and, if it decides to fill up the post of Assistant Director by way of promotion, then, the case of the appell ant for regular promotion to the post of Assistant Director shall be considered on the basis of seniority-cum-suitability unless any guideline is, otherwise, is sued and/or Rule is, otherwise, framed and if the appellant is found not suitabl e despite his seniority over the private respondent, then and then only the case of the private respondent shall be considered for promotion to the post of Assi stant Director. The whole exercise, so directed, shall be completed within a pe riod of three months from the date of receipt of a copy of this order by respond ent No. 2 herein, namely, Chief Secretary to the Government of Nagaland, Kohima. 21. With the above observations and directions, this appeal stands disposed of. 22. No order as to costs.