Allowed

Tarachu Fithu v. State of Nagaland AND7 Ors.

Gauhati HC8 Apr 2022WP(C)/71/2010

Case brief

AI extract

What is this about?

The petitioner challenged a seniority list placing him junior to a respondent appointed earlier but redesignated later. The Court held that seniority cannot be grante retrospectively if the employee was not borne in the cadre at the time the other officer entered service.

What did the court decide?

The impugned seniority list dated 26.02.2010 is set aside and quashed, and the petitioner is declared senior to the respondent with restoration of seniority.

Tarachu Fithu Vs State of Nagaland AND7 Ors. — Service and Employment | Gauhati HC (2022)

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Page No.# 1/18

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GAHC020000012010

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH

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Case No. : WP(C) 71/2010

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1:TARACHU FITHU ASST.DIRECTOR

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DIRECTORATE OF URBAN DEVELOPMENT,KOHIMA

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VERSUS

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1:STATE OF NAGALAND AND7 ORS. KOHIMA

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2:ADDITIONAL CHIEF SECRETARY AND DEVELOPMENT COMMISSIONER KOHIMA

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3:SECRETARY URBAN DEVELOPMENT DEPTT. KOHIMA

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4:THE DIRECTOR URBAN DEVELOPMENT

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KOHIMA

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5:COMMISSIONER AND SECRETARY WORKS AND HOUSING DEPTT. KOHIMA

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6:CHIEF ENGINEER WORKS AND HOUSING DEPTT. KOHIMA

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7:COMMISSIONER AND SECRETARY PAND AR DEPTT. KOHIMA

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8:TEMJENRENLA ASST.DIRECTOR DIRECTORATE OF URBAN DEVELOPMENT KOHIM

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Page No.# 2/18

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Advocate for the Petitioner : I. APOK PONGENER

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Advocate for the Respondent : GOVT ADV NL

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BEFORE

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THE HON’BLE MR JUSTICE ARUN DEV CHOUDHURY

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For the Petitioner : Mr. I. Apok Pongener, Advocate For the respondents : Ms. T. B. Jamir, Senior Additional Advocate General. Mr. C.T.Jamir, Advocate. Mr. I. Imchen, Advocate. Mr. A. Zhimomi, Advocate. Date of hearing : 09.03.2022, 21.03.2022 & 22.03.2022

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Date of Judgment & Order : 08.04.2022

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JUDGMENT & ORDER (CAV)

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Heard Mr. I. Apok Pongener, the learned counsel assisted by Ms.

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Anungla, the learned counsel for the petitioner. Also heard Mr. T. B. Jamir, the learned Senior Additional Advocate General for the State respondents, Mr. C. T. Jamir, the learned intervenor assisted by Mr. I. Imchen and Mr. A. Zhimomi, the learned counsel for the respondent No. 8.

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The present petition is filed by the petitioner challenging the following:-

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I. Notification dated 20.09.2006 issued by the Planning and Coordination Department re-designating the post of Asst. Architect in the department of Works & Housing to that of the Asst. Town

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Page No.# 3/18 Planner in the planning and Coordination Department, creation of the post of Asst. Town Planner (re-designated from Asst. Architect).

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II. Incorporated in Schedule-II of the Nagaland Town & Country Planning Service Rule 2004 and appointment of the respondent No. 8 in the re-designated post.

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III. The Officer memorandum dated 26.02.2010 issued by the Urban Development Department publishing the final seniority list of the gazette officers (Planners) as on 01.02.2010 in the Directorate of Urban Development.

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As the Schedule-II of the Service Rules, 2004 was under challenge, the matter was placed before and taken up by the Hon’ble Division Bench. However, the challenge to the Service Rules, 2004 was withdrawn and a submission was made before the Hon’ble Division Bench that the petitioner will confine his challenge to the inter-se-seniority position between the petitioner and the respondent No. 8, the Division Bench by its order dated 26.10.2016, directed the present writ petition to be placed before the Single Bench. Accordingly, this matter is before this Court.

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The dispute now to be determined is the inter-se-seniority between the petitioner and the respondent No.8. The undisputed fact regarding the initial entry into service of both the petitioner and the respondent No. 8 are as under:-

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I. On 17.01.2000, the respondent No. 8, after due selection by Nagaland Public Service Commissioner (in short NPSC) was appointed as Assistant Architect (Class I Gazetted), under the Nagaland Public Works Department and was posted as Assistant Architect in the office of the Chief Town Planner, Nagaland Kohima.

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Page No.# 4/18

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II. Pursuant to a selection the petitioner was appointed on 19.03.2004 to the post of Assistant Town Planner (Class-I Gazetted) under the establishment of Urban Development Department and was posted as Assistant Town Planner, Junheboto.

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III. Thus, at the entry into the service, the parent department of the respondent No. 8 was Public Works Department and it is worth mentioning that at the time of appointment of the petitioner and the respondent No. 8, the Town Planning establishment was under Planning and Coordination Department but subsequently the same was brought under Urban Development Department.

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On the basis of such background fact, the learned counsel for the petitioner Mr. I. Apok Pongener submits the following:-

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I. The respondent No. 8 belongs to Public Works Department and she was selected and recruited under the said department. Therefore, even if she is posted under Town and Country Planning Department, her service is governed by the Nagaland Engineering Service Rules, and not the Service Rules, 2004.

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II. The respondent No. 8, all throughout remained as an employee of Work and Housing Department. In support of such contention, the learned counsel for the petitioner submits that even when the respondent No. 8 was posted under Urban Development Department, while going for higher studies the respondent sought permission from and was granted on 21.07.2000, by the Works and Housing Department, and after completion of such study the respondent No. 8 joined in her parent department i.e. Works and

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Page No.# 5/18 Housing Department on 22.02.2002. Accordingly, the learned counsel submits that for all meaning and purport, the respondent No. 8 remained as cadre under Works and Housing Department and her service condition was regulated initially by Nagaland Engineering Service Rules, 1997 and latter by the Nagaland Engineering Service Rules, 2006.

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III. In view of such admitted facts, the respondent No. 8 cannot be treated as a cadre under the Service Rules, 2004 and she cannot be made senior to the petitioner under Town and Country Planning Department.

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IV. The respondent No. 8 has also all throughout been treated as Junior to the petitioner till the publication of impugned seniority list, submits the learned counsel for the petitioner. In support of his contention, he relies on the seniority list of 2007 and 2009 and submits that in the said seniority list the petitioner was placed at Sl No. 12 and the respondent No. 8 was placed at Sl. No. 13. Such seniority position has long been settled and was affirmed through the seniority list dated 04.08.2009 wherein the petitioner was shown at Sl. NO. 11 and the respondent No. 8 was at Sl. No. 12, taking her date of appointment as from 20.09.2006 i.e. the date of redesignation of the post in her favour. Such settled position cannot be unsettled by the impugned decision of the respondents, the learned counsel submits. He further submits that till 2009 he was treated to be senior accordingly, there was no occasion to approach this Court till 26.02.2010 when the respondent No. 8 was placed at SL. No. 11 and the petitioner was placed at Sl. No. 12.

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Page No.# 6/18

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V. The learned counsel also submits that the respondent No. 8 and the petitioner appeared in the selection process conducted by NPSC for the post of Assistant Planner, in which examination, the petitioner became successful and the respondent No. 8 failed. Accordingly, the petitioner was appointed. Now by virtue of the impugned decision, the State respondents are seeking to make respondent No. 8 senior to the petitioner, whereas she even could not compete with and beat the petitioner in the entry level exam conducted by the NPSC, submits the learned counsel for the petitioner.

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VI. The learned counsel for the petitioner further submits that, the Rule, 2004 mandates that the post in question need to be filled up by way of direct recruitment (50%) and by way of promotion from the feeder cadre (50%). Therefore, by change of designation, the respondent No. 8 could not have been encadred and made senior to the petitioner. The whole exercise is beyond the scope of the Rules, 2004 and till date no order absorbing the respondent No. 8 in the department has been passed and therefore, the entire decision to make the respondent No. 8 senior to petitioner is liable to be struck down being violative of Rule, 6 of the Rules, 2004.

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VII. It is the further case of the learned counsel for the petitioner that even if assuming that the respondent No. 8 is absorbed in the department by virtue of the notification dated 20.09.2006 and incorporation of the schedule re-designating Assistant Town Planner to Assistant Architect, the same came into existence with effect from 30.09.2008 and at best the respondent No. 8 service can be considered from that date not prior to 30.09.2008. The learned counsel submits that the seniority cannot be counted from a date

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when the respondent No. 8 was not even borne into the service.

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Mr. T. B. Jamir, the learned Senior Additional Advocate General supporting the state action submits the following:-

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I. The respondent No. 8 was directly posted at the office of Town Planner and it cannot be said to be on deputation. Therefore, here seniority must be counted for initial date of posting.

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II. The learned Additional Senior Advocate General further contends that the particular post of Assistant Architect was created after amalgamation of All Engineering Services, on 06.12.1988 and there is no record of inclusion of the said particular post in the amalgamated list of post under Common Engineering Services. Therefore, the same cannot be said to be solely under Engineering Service.

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III. In view of such situation and due to the fact that the department was confronted with the problem of determining the seniority, it was proposed for re-designation of the post. Approval was given by the P&AR Department, the learned counsel submits.

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IV. Mr. T. B. Jamir, the learned counsel further submits that as dispute regarding effective date of re-designation and resultant dispute regarding seniority arose, it was decided by the competent authority that re-designation be done for the lone post for the lone incumbent. Accordingly, it was decided that as both the persons i.e. the petitioner and the respondent No. 8 were selected through NPSC, the respondent No. 8 being selected and appointed at earlier point

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Page No.# 8/18 of time, the respondent No. 8 was treated to be senior counting her period of service from her initial appointment and not from the date of re-designation inasmuch as she continued to serve in Urban Development Department (Town and Country Planning) since her initial appointment.

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V. Mr. Jamir, the learned counsel further submits that creation, abolition or re-structuring of post are policy decisions and same should be left to the wisdom of the policy maker and this Court may not like to judicially review the same in exercise of its power under Article 226 of the Constitution of India.

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Mr. A. Zhimomi, the learned counsel representing the respondent No. 8 while supporting and adopting the argument of the learned Senior Additional Advocate General further submits the following:-

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I. The post was created in the year 1988 and the re-designation of the same should relate back to the original date of creation and resultantly the state has rightly decided the respondent No. 8 to be senior.

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II. Mr. Zhimomi, the learned counsel further submits that the petitioner and the respondent No. 8, both had been selected by the NPSC, both the posts were similar in scale and rank, the respondent No. 8 was selected and appointed in the year 2000 and the petitioner in the year 2004 and therefore, even without re-designation the respondent No. 8 is senior to that of the petitioner in service and she cannot be deprived of her seniority and accordingly the State has taken a right decision to redress her grievance.

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Page No.# 9/18

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III. He further submits that matters relating to creation/mode of recruitment prescription of qualification etc. are matters which fall under employer’s domain and this Court in exercise of its jurisdiction of judicial review should not upset such decision. In support of his argument he has relied upon the judgments of the Hon’ble Apex Court in Union of India –Vs- Pushpa Rani and Others reported in 2008 9 SCC 242 and P.U. Joshi and Others –VsAccountant General, Ahmadabad and Others reported in 2003 2 SCC 632 .

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Mr. C. T. Jamir, the learned Senior Counsel representing the intervenor while supporting the arguments advanced by the learned counsel for the petitioner submits that the Rule 6 of the Rules, 2004 mandates that 50% of vacancy in respect of the post in question needs to be filled up through promotion and 50% through direct recruitment. However, only to favour the respondent No. 8, a new mode of recruitment by way of re-designation was done by the State and blocked the vacancy, which otherwise would have been available to other persons belonging to the feeder cadre. The action of the State authority is in total violation of the Rules, 2004. The respondent No. 8 was neither on deputation nor on lien or has been absorbed in the department. Therefore, in the interest of the other employees i.e. the feeder cadres, the respondent No. 8 need to be reverted back to her parent department and the same will protect the interest of the other employees belonging to the feeder cadre.

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I have given anxious consideration to the arguments advanced by the learned counsel for the parties and also perused the materials available on record.

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Page No.# 10/18 10. Before coming to the final determination, in considered opinion of this Court, certain facts and provisions of Rules are required to be discussed and put on record, which can be summarized as follows:-

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I. On 17.01.2000, the respondent No. 8, after due selection by the NPSC was appointed as Assistant Architect (Class I Gazetted), under the Nagaland Public Works Department and was posted as Assistant Architect in the office of the Chief Town Planner, Nagaland Kohima.

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II. Pursuant to a selection by the Nagaland Public Service Commission (in short NPSC), the petitioner was appointed to the post of Assistant Town Planner (Class-I Gazetted) under the establishment of Urban Development Department and was posted as Assistant Town Planner, Junheboto.

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III. Thus, at the entry into the service, the parent department of the respondent No. 8 was Public Works Department and of the petitioner was under the establishment of Urban Development Department.

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IV. Since, September, 2006 i.e. from 20.09.2006, the Urban Development Department (Town Planning) was segregated from Planning and Coordination Department (General Branch) and brought the same under Urban Development Department.

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V. The Nagaland Town and Country Planning Service Rules, 2004 came into effect from 30.09.2008 i.e. the date of publication of the said Rule in the Nagaland Gazette. Such Rule was enacted under the proviso to Article 309 of the Constitution of India for regulating recruitment and condition of services of the persons appointed to the Nagaland Town and Country Planning services.

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Page No.# 11/18 VI. The Rule 3 of the said Rules of 2004 provides for constitution and classification of service. The Assistant Town Planner is categorized as Class I service.

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VII. The Rule 6 provides source of recruitment and the Schedule II of the said Rules, 2004 provides that 50% posts of Assistant Town Planner is to be recruited through direct recruitment and the remaining 50% by promotion from Planning Assistant/ Draftsman Grade-I, Surveyor Grade-I having the requisite qualification for the post with at least seven years of experience.

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VIII. The Nagaland Engineering Service Rules, 1997 (in short Rules, 1997) was enacted in exercise of Power under proviso to Article 309 of the Constitution of India and the same came into effect from 01.04.1997. Such Rule was enacted for regulating recruitment and condition of service of persons appointed to the Nagaland Engineering Service (Class-I and Class-II). The said Rule, 1997 was made applicable to all the Class-I and Class-II Engineering services in Public Works Department, Public Health Engineer Department and Department of Power.

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IX. The Rule 5 of the Rules, 1997 provides that Assistant Architect to be a Class-I service.

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X. The Nagaland Engineering Service (Class-I and Class-II), Rules, 2006 (in short Engineering Rules, 2006) was made for regulating the recruitment and condition of service appointed to Nagaland Engineering Service (Class –I and Class-II) and same came into effect from 31.10.2007. The Rule 5 categorizes Assistant Architect under Class-I service.

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Page No.# 12/18 It is worth mentioning that prior to framing the Rules, 1997, All Engineering Wings under various Government Departments except State Transport, Geological Mining, Agriculture works and Housing Department were amalgamated with effect from 01.04.1989. Subsequently Works and Housing Department was bifurcated into two Wings namely Road & Bridges and Housing.

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In the aforesaid backdrop on 20.09.2006, the impugned notification was issued designating the Assistant Architect to Assistant Town Planner under the Urban Development Department which was held by the respondent No. 8 with immediate effect. The said post of Assistant Town Planner was also incorporated in the Schedule II of the Rules which came into effect 30.09.2008.

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In the above backdrop, this Court is now to determine the inter-seseniority between the petitioner and the respondent No. 8.

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Law is well settled that seniority is to be reckoned not from the date of the vacancy arose but from the date on which appointment made into the post. Law is also settled that retrospective seniority cannot be granted from a date when an employee is not even borne in the cadre as the same may adversely impact those who were already in the service duly and validly appointed. Such proposition can be found in the Judgment of the Hon’ble Apex Court in State Of Bihar And Others –vs- Akhouri Sachindra Nath And Others. reported in AIR 1991 SC 1244.

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In the case of Pawan Pratap Singh & Ors vs Reevan Singh & Ors , reported in 2011 3 SCC 267 the Hon’ble Apex Court after discussing different earlier judgments on this point held at paragraph 45 as under:-

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“45(ii)….. Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the

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Page No.# 13/18 safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirement of Articles 14 and 16 of the Constitution.

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(iv)……. The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been bornee in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.”

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Coming to the case in hand, from the order of appointment of the petitioner clearly shows that the petitioner was appointed to the post of Assistant Town Planner (Class I Gazetted) under the establishment of Urban Development Department by order dated 19.03.2004. Thus the petitioner was borne into the cadre of Urban Development Department as Class-I Gazetted. The appointment of the petitioner was issued by the Department of Planning and Coordination Department on the recommendation of NPSC. The service conditions are governed by Rules, 2004.

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The order of appointment dated 17.01.2000 issued by the Works and Housing Department reflects that on the recommendation of NPSC, the respondent No. 8 was appointed to the post of Assistant Architect (Class I Gazetted) under Nagaland Public Works Department. Thus the respondent No.8 borne into Class-I Gazetted cadre under Public Works Department, though the respondent No. 8 was posted in the office of Chief Town Planner.

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The Service Rules, i.e. Engineering Rules, 1997 was holding the field while the respondent No. 8 was selected and appointed. The Rule 5 declares the Grade and Status of the Assistant Architect as Nagaland Engineering Service (Class-I).

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The Rule 22 of the Engineering Rules, 1997 read with Engineering Rules,

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Page No.# 14/18

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2006 mandates that the seniority of a person who are recruited by way of direct recruitment under Rule 8 (a) i.e. through direct recruitment, shall be fixed in accordance with the merit list prepared by the Commission. Thus, it is clear that the post in which the respondent No. 8 was appointed, is a cadred post under the said Engineering Service Rules, 1997 read with Engineering Rules, 2006, and the seniority, scales of pay and all other service conditions are determined under the said Service Rules, 1997 read with Engineering Rules, 2006.

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The Rule 1(iv) of Service Rules, 2004 provides that the Rule is applicable to the member of service of Nagaland Town and Country Planning Department appointed before or after commencement of this Rule. Thus, though the Rule came into effect on 30.09.2008, the same is applicable to the petitioner who was appointed in the Nagaland Town and Country Planning Department prior to framing of the Rules, 2004. As stated herein before, Rule 3 (I) of the Rules, 2004 brings the post of Assistant Town Planner, which the petitioner was holding, under Class-I service and the same is also reflected in the appointment order of the petitioner, though at that point of time, this Rules, 2004 was not holding the field. Thus it is apparent that the petitioner was borne into the cadre of Class-I service under the Town and Country Planning Department with effect from his date of appointment.

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From the aforesaid it is further clear that the petitioner and the respondent No. 8 were borne into two different cadres under two different Departments and on two different dates. Therefore, their seniority cannot be compared until and unless one of them is brought into the other service / cadre by following due process of law inasmuch as Rule 16 of the Rules, 2004 provides that those persons who are directly recruited into the service, their seniority shall be fixed as per merit list prepared by NPSC.

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Page No.# 15/18 19. From the Rule of seniority in both the Service Rules i.e. Engineering Service Rules, 1997 read with Engineering Rules, 2006, and Service Rules, 2004, governing the service condition of the respondent No. 8 and the petitioner respectively, it can be conclusively held that seniority between the petitioner and the respondent No. 8 cannot be determined as both of them were selected and appointed by NPSC by different selection process and they do not belong to the same merit list.

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In view of the aforesaid factual matrix, settled proposition of law, even if this Court helds that the respondent No. 8 was brought/borne into the cadre under the Service Rules, 2004 either by virtue of the notification dated 20.09.2006 or by virtue of the framing of Service Rules, 2004, which came into effect from 30.09.2008, the respondent No. 8 cannot be granted seniority over the petitioner who was already working in the Department by virtue of his due selection by NPSC.

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This Court also cannot be oblivious of the fate of the respondent No. 8. The respondent No. 8 was posted under the Town and Country Planning Department not by her own but under direction of the competent authority and she continued to work under the Department, without any due process of law, like putting her under deputation or under lien. She continued to be under the control of her parent Department which is clearly reflected from the grant of study leave and her joining before the parent Department after returning from such study leave. The State respondents are at liberty to regularize her service or to absorb her in the Town and Country Planning Department in exigencies of services. However, same need to be done by following due process of law, which has not been done by the respondent authorities. However, their intent is discernable from the notification dated 20.09.2006. In any of the event, the petitioner cannot be treated as senior to the respondent No. 8. Therefore,

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Page No.# 16/18 without interfering with the communication dated 20.09.2006, it is held that the respondent No. 8 cannot be treated as senior to the petitioner herein, when the petitioner entered into the service on 19.03.2004 and the respondent No. 8 was borne into the service on 20.09.2006.

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Therefore, the argument advanced by the learned Senior Additional Advocate General and supported by Mr. A. Zhimomi, the learned counsel that that the entire exercise was done in exigencies of service, does not hold good inasmuch as action of the respondents exercised exigencies of service must also in conformity with the Rules, which in the case in hand has not been followed, as discussed hereinabove. The respondents also cannot be permitted to act, even in exigencies of services, to violate right of others, which has been done in the case in hand depriving the petitioner from his establish seniority and made him junior to the respondent No. 8 whereas, the respondent No. 8 did not borne into the cadre under the Service Rules, 2004 when the petitioner was appointed after due selection by NPSC.

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There is no quarrel with the argument of Mr. A. Zhimomi, the learned counsel and the proposition of law laid by the Hon’ble Apex Court in Pushpa Rani (supra) and P. U. Joshi (supra) but the same are not applicable in the present case. In Pushpa Rani (supra), the Hon’ble Apex Court in no unambiguous term held that policy matters relating to creation and abolition of post, formation of qualification, selection criteria, evaluation of service record are matters which fall under the domain of employees and also laid down that such policy matters can be judicially reviewed when the State action is contrary to constitutional or statutory provision or patently arbitrary. Therefore, the said judgment nowhere debars the judicial review rather permits it when the same is violative of Rules, Acts, and Constitutional provision. Same is the ratio of the Hon’ble Apex Court declared in P.U.Joshi (supra). The paragraph 10 relied

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upon by Mr. A. Zhimomi, the learned counsel relates to change in service conditions and the Hon’ble Apex Court held that the employees are having no right to claim that Rules governing the condition of service should forever be same as the one when the employee entered into the service. However, the Hon’ble Apex Court in the said paragraph further held that the employees will have a right for ensuring his rights or benefits already earned, acquired or accrued at a particular point of time. Such judgment helps the case of the petitioner inasmuch as the right of the petitioner to protect his seniority accrued by virtue of his selection by NPSC and appointment into the Department under the Service Rules, 2004 are sought to be taken way making the respondent No. 8 senior counting her seniority from the original date of posting whereas at best she was borne into the service on 20.09.2006 and the petitioner was borne into the said service on 19.03.2004.

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The argument of Mr. Jamir, the learned Senior Counsel for the intervenor that the Rule of recruitment has been flouted by virtue of the notification dated 20.09.2006 and resulting in deprivation of feeder cadre from promotional avenues and further argument that the respondent No. 8 needs to be sent back to her parent Department, this Court is of the view that such prayer cannot be acceded to as same has been done at the behest of the intervenor and not at behest of any aggrieved party and intervenor cannot be recognized as party aggrieved in the given facts of the present case.

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In view of the aforesaid discussions, reasons, the impunged seniority list 26.02.2010 is set aside and quashed, and declared that the petitioner is senior to the respondent No. 8 and resultantly the seniority of the petitioner be restored.

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In the aforesaid terms, the writ petition is allowed. However, no order

Page No.# 18/18

as to cost.

JUDGE

Comparing Assistant

Tarachu Fithu v. State of Nagaland AND7 Ors.

Case brief

What is this about?

What did the court decide?

Tarachu Fithu v. State of Nagaland AND7 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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