Gauhati High Court
Rukongutuo And Ors. vs State Of Nagaland And Ors. on 12 October, 2007
Equivalent citations: 2008(1)GLT129
JUDGMENT M.B.K. Singh, J.
1. Heard Mr. C.T. Jamir, learned Counsel appearing on behalf of the petitioners, Mrs. Lucy, learned Govt. Advocate appearing for respondents 1 to 5 and Mr. T. Koza, learned Counsel appearing on behalf of respondent No. 6.
2. In this writ petition, the petitioners, who were directly recruited as SDO (Electrical) under the relevant service rules are praying for quashing the Govt., order/notification dated 29.9.05 by which the respondent No. 6, who had been serving as Lecturer, Khelhoshe Polytechnic Atoizu under Higher and Technical Education and then serving as SDO (Electrical) on deputation, was absorbed in the Department of Power as SDO (Electrical) w.e.f. 15.9.05 and the Govt, order/notification dated 7.12.05 by which the seniority of the said respondent was ordered to be counted from the date of his regular appointment as Lecturer in the parent department i.e. 6.10.93 instead of the date of his absorption to the Power Department.
3. There is no dispute in respect of the following facts. The petitioners and respondent No. 6 are BE/B Tech Degree holders in Electrical Engineering. The petitioners were appointed as SDO (Electrical) in the Power Department as direct recruits through the selection process conducted by the Nagaland Public Service Commission (in short, the NPSC) during the period from 25.1.94 to 16.3.05. The respondent No. 6 participated in the selection process for the post of SDO (Electrical) conducted by the NPSC in 1992 but he was not selected. However, in 1993, respondent No. 6 was recommended by the NPSC for the post of Lecturer and as such he was appointed as Lecturer in Electrical Engineering, Class-II (Gazetted) in Khelhoshe Polytechnic Atoizu vide Government order being No. EDS(A)-47/82 dated 6.10.93. There is no provision in the relevant Nagaland Engineering Service Rules, 1997 for filling up the post of AE/SDO (Electrical) by absorbing a deputationist. As per the said Rules, 60% of the total vacant posts of AE/SDOs at the time of requisition shall be filled up by direct recruitment through the Commission and 40% of the total vacant posts shall be filled up by promotion of serving Junior Engineers possessing requisite qualification prescribed in the Service Rules. However, by order/notification dated 15.12.98, issued by the Commissioner and Secretary to the Government of Nagaland, the respondent No. 6, who was serving as Lecturer in Khelhoshe Polytechnic Atoizu, was appointed as SDO (Electrical) in the Department of Power on deputation. On 31.10.02, the Association of Power Engineers (in short, APEN) submitted a representation to the Chief Engineer with copies to all the concerned respondents requesting for immediate stoppage and not to allow further extension of the services of the deputationists in the Department. On 5.6.03, another representation was submitted by the APEN to the Chairman, NPSC objecting to absorption of deputationists in Power Department in violation of the relevant Service Rules and Government's memorandum.
4. On 1.7.03, the State Government issued a notification being No. POWER/W-61/2002 releasing the respondent No. 6 and two other deputationists from Power Department. However, in respect of respondent No. 6, in supersession of the above said notification dated 1.7.03, the State Government extended the term of deputation of the said respondent from 1.9.03 till WP (C) No. 162 (K) 03 filed by the said respondent was settled by the High Court. This Court vide order dated 23.3.05, disposed of the said case directing the State respondents to consider the case of the petitioner (the present respondent No. 6) as to whether to absorb him or not in the Power Department within a period of 2 (two) months from the date of receipt of the order. Then, on 29.9.05, the State Government issued the impugned notification No. POWER/W-61/2002 absorbing the respondent No. 6 as SDO (Electrical) in the Power Department w.e.f. 15.9.05. It was also stated in the said notification to the effect that the seniority of respondent No. 6 would be counted from the date of Cabinet decision i.e. 15.9.05. Thereafter, the other impugned notification being No. POWER/W-61/2002 dated 7.12.05 was issued superseding the earlier notification dated 29.9.05 and making the seniority of respondent No. 6 to be counted from the date of his regular appointment as Lecturer in his parent Department i.e. 6.10.93.
5. According to the petitioners, the impugned notification/order dated 29.9.05 by which the respondent No. 6 was absorbed in the Department of Power as SDO (Electrical) and the impugned notification/order dated 7.12.05 by which the seniority of the said respondent was ordered to be counted from the date of his appointment as Lecturer in the parent Department i.e. 6.10.93 are illegal and liable to be quashed for violation of the relevant Service Rules and the relevant Office Memorandum No. AR-7/8/86 dated 21.8.04 issued by the Personnel & Administrative Reforms Department, Government of Nagaland. The learned Counsel appearing on behalf of the petitioners submits that since there is no provision in the relevant Service Rules for filling up the said post of SDO (Electrical) by absorbing a deputationist, the impugned notification dated 29.9.05 is not sustainable in the eye of law. Further, the learned Counsel for the petitioners draws the attention of this Court to the terms and conditions mentioned in the memorandum mentioned above and submits that the impugned notification dated 7.12.05 is also not sustainable in the eye of law. For convenience, the said Office Memorandum dated 21.8.04 is reproduced below:
Government of Nagaland Personnel and Administrative Reforms Department (Administrative Reforms Branch) OFFICE MEMORANDUM No. AR-7/8/86 dt. Kohima, the 21st Aug. 2004 Subject: Procedure for filling up of vacancies on Deputation regular absorption of Deputationists The undersigned is directed to refer to the subject cited above and to state that inspite of laid down rules on deputation, many departments appoint persons on deputation without following the existing Government orders and later in several cases absorb them. The Government after examining this matter has decided to issue to following instructions to be followed while filling up any vacancy on deputation.
1. Before deciding to fill up the post on deputation consultation with the NPSC (in case the post comes within the purview of the NPSC) shall be necessary before appointing a person on deputation basis.
2. Normally a Department should fill up a vacancy on deputation only if there is provision for this in the relevant Service Rules or if the Department requires an officer with specific qualification for a specialized job or personnel with required qualification and seniority within the Department are not available for specific reasons.
3. Such a vacancy will be invariably advertised through newspaper and official circulars indicating qualifications, experience, other eligibility conditions, last date of receipt of application etc.
4. The candidates will be selected by a Screening Board which will be chaired by the Secretary of the Department with representative of the P & AR Department and representative of the concerned Directorate and an expert in the relevant discipline.
5. A person shall be eligible to apply for a deputation post only if he is in the same or equivalent grade or, if the candidate is in the next lower grade, he should have fulfilled the qualifying years and other criteria for promotion to the next higher grade and possess the specified qualification/experience for the deputation post. The Department must also certify that no suitable candidate from the feeder service is available or going to be available in the near future for promotion.
6. The period of deputation shall be ordinarily 2 (two) years except in those cases where a longer period of tenure is prescribed in the Service Rules. If the post falls within the direct recruitment quota as per the recruitment rules, such deputation shall not exceed a period of 2 years or the recruitment by the NPSC, whichever is earlier. The extension beyond the period laid down can only be granted with the prior approval of the lending Department, P & AR Department and the NPSC (for the posts under their purview).
7. An officer on deputation will not be normally granted promotion while on deputation. The officer will revert to the parent cadre to avail promotion and another officer will be deputed to that post if the necessity continues to exist. In exceptional situations, an officer can be promoted by the borrowing Department after obtaining the approval of the cadre controlling authority, NPSC and the P & AR Department.
8. On the date of completion of the deputation period, an officer shall get reverted automatically to the parent Department even if no release order has been issued unless an order extending his/her deputation has been issued before the expiry of the deputation period.
9. Any proposal to absorb a candidate must have the prior clearance of the NPSC, P& AR and the Cabinet stating that no suitable candidate is available from the feeding cadre for promotion to that post. The consent of the person concerned and the lending Department will be mandatory before considering permanent absorption.
10. The seniority of the person so absorbed in the deputation post, shall be counted from the date of such absorption only (i.e. from the date of Cabinet approval).
Sd-
V.V. GAUR Principal Secretary to the Government of Nagaland
6. The petitioners are aggrieved that as a result of the impugned notifications/orders though they were appointed as SDO (Electrical) on regular basis on the recommendation of the NPSC after selection process before the said absorption of respondent No. 6 in the Power Department as SDO (Electrical), they have been superseded by the respondent No. 6, who was absorbed in the Department vide Cabinet decision made on 15.9.05 only.
7. In the Affidavit-in-Opposition filed on behalf of respondents 1 to 5, the following facts and circumstances are stated in paragraph 10:
10. That as regard to statement made in paragraph 12 of the writ petition this deponent respectfully submitted that any proposal for appointment of Class-I Gazetted post need to be obtained prior clearance of P & AR department under Rules of Executive Business, Rule 57D of (3) and also First Schedule 2(c) similarly in the case of regular absorption of deputationist in other department the concerned appointing authority should obtain prior clearance of the NPSC in case of the post (s) coming under the purview of NPSC (Limitation & Functions) Regulation. There is no specific provision of Rules for appointment on deputation basis against the vacancy post of direct quota. However, this is the general and accepted pattern of filling up of posts which requires experienced hands or where qualified candidates for promotions from lower feeder are not readily available. Further, this Hon'ble High Court have directed to consider the case of the private respondent No. 6 for permanent absorption against the recruitment quota. The private respondent No. 6 seniority has to be fixed with effect either on the date of Cabinet approval or the date of issue of the Notification by the Department in accordance with OM of the State Government issued from time to time. In the instant case of the private respondent No. 6 has applied for counting of his seniority (fixation of seniority) from the date of regular appointment in the parent post of date of joining the deputation posts whichever is earlier. Accordingly his case has been reviewed and he was allowed to count his seniority from the date of joining service in the parent department. It is stated that the same clearance has been reiterated by the department vide UO. No. 46 of 11.11.2005 and UO No. 226 of 13.3.2006 respectively since the same provision has been applied in the similarly situated persons in the recent past, other candidates of deputationist namely: (1) Shri Kezholel Rhetso absorbed to the post of SDO (PWD) from parent department of Kheloshe Polytechnic, (2) Shri Toba Angami absorbed to the post of SDO (PWD) from parent department of Kheloshe Polytechnic Atoizu, (3) ShriH. M. Rawther, Stenographer in Nagaland Civil Secretariat.
8. It is the case of respondents 1 to 5 that though there is no specific provision in the relevant Service Rules for appointment on deputation basis against a vacant post of direct recruitment quota, such an appointment is the general and accepted pattern of filling up of post, which require experienced hands and where qualified candidates for promotion from lower feeder are not readily available. Further, according to respondents 1 to 5, despite provisions/instructions in the relevant office memorandum about fixing of seniority of an absorbed employee to the contrary, on the basis of application of the respondent No. 6 himself, his case was reviewed and his seniority was counted with effect from the date of his joining of service in his parent Department as done in the case of the other deputationists mentioned in the counter affidavit.
9. According to respondent No. 6, the impugned notifications/orders were issued after obtaining clearance from P & AR Department with approval of the State Cabinet and also as per order of the High Court passed in WP (C) No. 162 (K) 03 on 23.3.05. Further, according to respondent No. 6, he was absorbed in the Power Department by the Government as he was having requisite qualification as well as practical teaching experience. It is also the case of respondent No. 6 that the said fixing of his seniority with effect from the date of his regular appointment as Lecturer in the parent Department i.e. 6.10.93 was done in consonance with the Apex Court's decision in S.I. Rooplal and Anr. v. Lt. Governor Delhi and Ors. . An additional Affidavit-in-Opposition is also filed by the respondent No. 6. According to him, the post of Lecturer in Higher and Technical Department and the post of SDO/Assistant Engineer in the Power Department are equivalent post carrying identical scale of pay and he was brought on deputation with approval of the NPSC. It is also alleged that when he (respondent No. 6) submitted his application for absorption of his service in the Power Department, the same was recommended by the Executive Engineer, Transmission Division, Mokokchung.
10. As noted earlier, there is no provision in the relevant Service Rules for filling up the vacant post of SDO (Electrical) in the Power Department by way of deputation or by way of absorbing a deputationist. At the same time, in the said Nagaland Engineering Service Rules, 1997, there is no specific provision prohibiting the State from filling up the vacant post of SDO (Electrical) in the Power Department by way of deputation or by way of absorbing a deputationist. It is also well settled that a State cannot compel an employee to go on deputation from its parent department to another department unless a statutory rule exist in this behalf. There is no such provision in the relevant Service Rules.
11. In these situations, one may reasonably say that the State Government has power to fill up the vacant post of SDO (Electrical) by way of deputation or by way of absorbing a deputationist in order to meet the exigency of service. In the absence of any provision in the relevant Service Rules, prohibiting the State Government from filling up the said post by way of deputation or by way of absorbing a deputationist, there is no appreciable reason as to why the State Government should not be having power to do so to meet the exigency of service and the said mode of filling up the post of exceptional circumstances in accordance with the relevant official memorandum in this regard is to be considered as a supplement to the other modes of recruitment prescribed in the Service Rules. No doubt, one may also say that since the relevant Service Rules prescribe modes of recruitment in respect of the said post of SDO (Electrical), the State Government has authority to fill up the post only in the manner/modes prescribed by the Service Rules and not otherwise. It is also to be noted that in the present case, the petitioners, who are all direct recruits are not directly affected by the said filling up of the post of SDO (Electrical) by way of absorption of the deputationist (respondent No. 6) but they are affected only when the said deputationist has been made senior to them. In my considered opinion, it will be reasonable to conclude that despite absence of any provision in the relevant Service Rules allowing the State Government to fill up the said post by way of deputation or by way of absorbing a deputationist, in view of the absence of any provision prohibiting it to fill up the post in the above said manner, it will be having jurisdiction to do so to meet exigency of services. At the same time, since the State Government has the said jurisdiction, when it allowed respondent No. 6 to serve as SDO (Electrical), Power Department on deputation and when it further appointed him (respondent No. 6) to the post of SDO (Electrical) by way of absorption, unless there are materials to show to the contrary, it is to be presumed that the State Government was doing so regularly and properly in accordance with the relevant existing Government Memorandum etc. In the present case, having regards to all the relevant considerations including the case of respondent No. 6 to the effect that he was absorbed in the Power Department as SDO (Electrical) as required by the said Department after getting clearance from all the concerned authorities as well as the fact that apart from the issue of seniority, the petitioners are not directly affected by the impugned absorption order dated 29.9.05, no interference is called for in respect of the impugned order/notification dated 29.9.05.
12. It is however, to be noted that in view of the absence of any provision in the relevant Service Rules for filling up the post of SDO (Electrical) in the Power Department byway of absorption of a deputationist, respondent No. 6 was not having any legal right to claim for the said absorption to the Power Department. At the same time, it is to be noted that there is no provision in the relevant Service Rules under which the State Government can compel the respondent No. 6 to go on deputation from his parent department to the Power Department. In these circumstances, having regard to the fact that respondent No. 6 sought for the said absorption and the State Government also decided to absorb him, it is to be concluded that respondent No. 6 elected to get himself absorbed to Power Department with approval of the State Government. Presumably, the respondent No. 6 was aware that he was not born in the cadre of SDO (Electrical) in the Power Department. In the absence of any provision in the Service Rules for appointment on permanent absorption of a deputed employee, the said appointment of respondent No. 6 by way of absorption was a fresh appointment to be governed by the term and condition of the then existing Government's memorandum in that regard. Respondent No. 6 exercised his right of election. If he did not like to be governed by the said terms and conditions, he could have rejected the said absorption but apparently, the respondent No. 6 accepted the said appointment by way of absorption under the said existing terms and conditions. After obtaining entry into service as SDO (Electrical) he cannot be allowed to turn around and contend that the terms and conditions are illegal. In fact, the respondent No. 6 never challenged the legality or otherwise of the said terms and conditions. Since he (respondent No. 6) accepted the said appointment by way of absorption without any compulsion, consequences attached thereto would ensue and he was bound by the said terms and conditions. Accordingly, the seniority of respondent No. 6 should have been determined on the basis of the then existing memorandum.
13. As per instruction in serial No. 10 of the relevant office memorandum dated 21.8.04, the seniority of a person so absorbed in the deputation post shall be counted from the date of such absorption only i.e. from the date of Cabinet approval. In view of the said instruction, when the State Government mentioned in the impugned order/notification dated 29.9.05 to the effect that the seniority of respondent No. 6 in the Power Department would be counted from the date of Cabi -net decision i.e. 15.9.05, there was no illegality. Accordingly, it was illegal and improper on the part of the State Government to issue the other impugned notification/order dated 7.12.05 superseding the earlier notification/order thereby saying to the effect that the seniority of respondent No. 6 in the Power Department would be counted from the date of his regular appointment as Lecturer in his parent department i.e. 6.10.93.
14. The reasons given by the State Government in their counter affidavit for re-fixing of seniority of respondent No. 6 contrary to the instruction/provisions of the relevant Office Memorandum dated 21.8.04 are not acceptable in law. Merely on the basis of the application of respondent No. 6 and on the ground of seniority having been fixed in respect of other deputationists the seniority of respondent No. 6 should not have been changed and thereby violating the terms and conditions mentioned in the relevant Office Memorandum and also thereby affecting the interest of the writ petitioners adversely. This Court is not in a position to express any opinion about legality or otherwise of the alleged counting of seniority of other deputationists mentioned in the counter affidavit of respondents 1 to 5 with effect from their respective dates of joining their respective services in their respective parent departments.
15. In my considered opinion, the decision of the Apex Court in S.I. Rooplal v. Lt. Governor Delhi will not be applicable in the facts and circumstances of the present case. In the said case, the appellants were deputed on transfer from BSF to the Delhi Police (Appointment and Recruitment) Rules, 1980, which empowered the authority to appoint the employees of other departments drawn by way of deputation depending on the need of the Delhi Police. In the absence of any seniority rules, seniority was sought to be determined by way of an executive order, which was issued on the basis of a memorandum dated 29.5.86 issued by the Government of India. It was found that the memorandum in question was neither made public nor the existence thereof was made known involved in the dispute. The said memorandum was not made ipso facto applicable to the employees. In the said background, the Apex Court observed at paragraph 19 as follows:
Therefore, it is reasonable to expect that a deputationist when his service is sought to be absorbed in the transferred department would certainly have expected that his seniority in the parent department would be counted. In such a situation, it was really the duty of the respondent, if at all the conditions stipulated in the impugned memorandum were applicable to such person, to have made the conditions in the memorandum known to the deputationist before absorbing his services, in all fairness, so that such a deputation would have had option of accepting the permanent absorption in the Delhi Police or not.
16. The facts and circumstances of the present case are quite different from the facts and circumstances of the said S.I. Rooplal's case (supra). In the present case, there was no deputation on transfer of the respondent No. 6 under any provision of the relevant Service Rules. The respondent No. 6 elected to get himself absorbed to Power Department with approval of the State Government. By accepting the said absorption without any compulsion from the said of the State Government, respondent No. 6 decided to be governed by the terms and conditions of the relevant office memorandum in regard to such absorption. It has already noted that he never challenged the terms and conditions of the said office memorandum dated 21.8.04 as illegal. It is also not the case of respondent No. 6 that he was not knowing the terms and conditions before absorbing his services. At the same time, in my considered opinion, the post of Lecturer in the said Polytechnic cannot be considered as equivalent to the post of SDO (Electrical) in the Power Department. Apart from the fact that the two posts are governed by separate Service Rules, the post of Lecturer, which is basically a teaching job is not equivalent to the post of SDO (Electrical) in the Power Department in the State. The two posts cannot be considered as an extension or a segment of each other.
17. In the facts and circumstances of the present case as per principle of law laid down by the Apex Court in Indu Sekhar Singh and Ors. v. State of U.P. and Ors. , the seniority of respondent No. 6 must be counted as per terms and conditions of the said Office Memorandum dated 21.8.04 with effect from the date of absorption only i.e. from the date of Cabinet approval i.e. 15.9.05. As per the decision of the Apex Court in Indu Sekhar Singh and Ors. (supra), the past services can be taken into consideration only when the Rules permit the same or where a special situation exist which would entitle the employee to obtain such benefit of past service. There is no any special situation which would entitle respondent No. 6 to obtain the benefit of past service in the present case. The impugned notification dated 7.12.05 having the effect of counting the seniority of respondent No. 6 with effect form the date of his regular appointment as Lecturer in his parent department i.e. 6.10.93 is not sustainable in the eye of law.
18. In the result, the impugned notification dated 7.12.05 is hereby set aside. No interference is made in respect of the impugned notification dated 29.9.05 and as such it is to be given effect to in respect of the matter of counting seniority of respondent No. 6. This writ petition is accordingly disposed of. No order as to costs.