Shri. Waluniba and 2 Ors. Vs the State of Nagaland and 8 Ors.

5:SMTI. KHRIETHONO NORNA ZASHIIMO LDA CUM COMPUTER ASSISTANT DIRECTORATE OF LEGAL METROLOGY AND CONSUMER PROTECTION GOVT. OF NAGALAND 6:SMTI. VIKHONO SAKHRIE LDA CUM COMPUTER ASSISTANT DIRECTORATE OF LEGAL METROLOGY AND CONSUMER PROTECTION GOVT. OF NAGALAND 7:SMTI. DRUSSILA KEZ RENGMA LDA CUM COMPUTER ASSISTANT DIRECTORATE OF LEGAL METROLOGY AND CONSUMER PROTECTION GOVT. OF NAGALAND 8:SHRI. HONWANG LDA CUM COMPUTER ASSISTANT DIRECTORATE OF LEGAL METROLOGY AND CONSUMER PROTECTION GOVT. OF NAGALAND 9:SMTI. LIMAPONGLA KICHU LDA CUM COMPUTER ASSISTANT DIRECTORATE OF LEGAL METROLOGY AND CONSUMER PROTECTION GOVT. OF NAGALAN

¶17

Advocate for the petitioner : Mr. Imti Longjem Advocate for the respondent No.1,2 & 3 : Mr. K. Angami, Sr. Govt. Adv Advocate for respondent No. 6,7 & 8 : Mr. Hisinlo Himb Advocate for the respondent No. 9 : Mr. Supongwati Walling Advocate for respondent No. 4 & 5 : Mr. A. Zho, Sr. Adv

¶18

BEFORE

¶19

HON'BLE MR. JUSTICE PRANJAL DAS

¶20

Date on which judgment is reserved : 28.04.2026

¶21

Date of pronouncement of judgment : 16.07.2026 Whether the pronouncement is of the : No. operative part of the judgment ?

¶22

Whether the full judgment has been : Yes

¶23

Page No.# 3/27

¶24

pronounced?

¶25

JUDGMENT & ORDER( CAV)

¶26

Date : 16-07-2026 ( Pranjal Das, J )tra

¶27

Heard Mr. Imti Longjem, learned counsel for the petitioner. Also heard Mr. K. Angami, learned Sr. Government Advocate for the State respondents; Mr. Hisinlo Himb, learned counsel for the respondent No. 6, 7 & 8; Mr. Supongwati Walling, learned Counsel for the respondent No. 9; Mr. A. Zho, learned Sr. counsel assisted by Mr. V. Koza, learned counsel for the respondent No.4 & 5.

¶28

Facts projected by the petitioners

¶29

2. The three petitioners herein namely, Shri. Waluniba, Smti. Diethoseno and Shri. T. Lumli Thongtsar filed the instant writ petition invoking the jurisdiction of this Court under Article 226 of the Constitution of India, aggrieved primarily by the placing of respondent No.4 to 9 being the private respondents above them in the seniority list with regard to their service as LDA-cum-Computer Assistant in the Directorate of Legal Metrology and Consumer Protection under the Government of Nagaland.

¶30

3. It is contended by the petitioners that they are working as LDA- cum-Computer Assistant in the Directorate of Legal Metrology and Consumer Protection under the Government of Nagaland and they are governed by the Nagaland Directorate Ministerial Service Rules 2006 (herein after the 2006 Rules).

¶31

4. It is stated that they have been appointed in accordance with Service Rules through an open competitive recruitment process conducted by NPSC. It is stated that the private respondents being respondent No. 4 to 9 are also serving as LDA-cum-Computer Assistant in the same department. It is stated that the 2006 Rules was notified to be implemented by the Personal and Administrative Reforms Department of the Government of Nagaland vide Office Memorandum No.AR-8/19/84 dated 16/03/2006. It is stated that as per the said 2006 Rules, specifically Rule-7, the recruitment has to be

¶32

Page No.# 4/27

¶33

by way of direct recruitment through a selection committee on the basis of marks obtained written examination/viva voce. It is also provided that under Rule 7(3) of the 2006 Rules that direct recruitment shall be in accordance with Executive Instructions and policy decisions issued in this behalf by government from time to time including reservation. Regulation Rule-10 provides that the minimum academic qualification for the post would be a graduate degree with working knowledge of computer and that the candidate also will have to undergo a test on basic use of computer.

¶34

5. It is further stated by the petitioners that vide Advertisement No.NPSC-1/2018 dated 29/06/2018, applications were invited to fill up three posts of LDA-cum-computer Assistant in their Directorate whereupon the petitioners applied and after the written examination followed by typing test the petitioner No. 1 & 3 were declared successful along with one, who however did not accept the appointment. Thereafter, the petitioner No.2 also came to be appointed.

¶35

6. It is stated that the petitioner No. 1 & 3 were appointed by the order No. CLMCP/Estt-242/11 dated 02/07/2019 and subsequently, due to non-acceptance of the selection by one candidate, the petitioner No.2 was also appointed by order No.CLMCP/Estt-242/11 dated 16/07/2019. It is stated that all the three petitioners had the requisite educational qualifications of a graduate degree. Thus, vide order No. CLMCP/Estt-242/11 dated 02/07/2019, the petitioner No. 1 & 3 were appointed and vide order No.CLMCP/Estt-242/11 dated 16/07/2019, the petitioner No. 2 also came to be appointed.

¶36

7. It is stated by the petitioners that the respondent No. 3 vide letter dated 05/06/2022 submitted a proposal for regularization of UDAs and LDA-cum-Computer Assistant in the Directorate but in the said letter the names of private respondents being respondent No. 4 to 9 appeared as Sl. No. 4 to 9 and the from the letter it came to be deciphered that their services had not been the regularized. However, subsequently by letter No. CLMCP/Estt-01/2022/773 dated 04/08/2022, the respondent No. 3 submitted a seniority list to the respondent No. 2 wherein respondent No. 4 to 9 are placed at Sl. No. 1 to 6

¶37

Page No.# 5/27

¶38

respectively and the petitioners were placed at Sl. No.7, 8 & 9 respectively. In other words, the private respondents were placed above the petitioners in the seniority list. The petitioners’ further state that from the seniority list and the letter dated 04/08/2022, it was revealed that respondent No. 4, 5, 8 and 9 were appointed permanently and the respondent No. 6 & 7 were appointed w.e.f 01/09/2005 on casual basis and 01/10/2011 on contract basis respectively and that thereafter respondent No. 6 & 7 were regularized with effect from 10/12/2014 and 12/12/2014.

¶39

8. It is stated that the petitioners subsequently obtained the orders of appointments and regularizations of the private respondents. It was revealed therefrom that respondent No.4 was appointed by the order dated 23/05/2013 with effect from 23/05/2013.The respondent No. 5 was appointed by the order dated 26/11/2014 with effect from 01/12/2014. The respondent No. 6 was appointed on casual basis by the order dated 30/08/2005 and was regularized vide order dated 10/12/2014 with effect from the same date. The respondent No.7 was appointed on contract basis for one year by the order dated 18/10/2011 and regularized by the order dated 12/12/2014 from the same date. The respondent No.8 was appointed by the order dated 07/04/2016 with effect from 01/04/2016 and respondent No. 9 appointed by the order dated 30/03/2017 with effect from 01/04/2017.

¶40

9. It is stated by the petitioners that though the appointments of respondent No. 4, 5, 8 and 9 were treated by the department as permanent and regular, but they were to be in fact appointed in total disregard to the Constitutional scheme of open selection and also dehors the Service Rules. The petitioners further contended that the regularization of respondent No. 6 & 7 is also in violation of the Service Rules and the Constitutional provisions. It is further stated that the appointments of respondent No. 4, 5, 8 and 9 also are in violation of the Office Memorandum bearing No. AR-5/ASSO/98(C) dated 26/02/2001 issued by the Personal &Administrative Reforms Department, Government of Nagaland.

¶41

10. That, the Executive Instruction of the said Office Memorandum clearly provides

¶42

Page No.# 6/27

¶43

that all the appointments have to be in accordance with the rules in force through NPSC or through open advertisement or through employment exchange.

¶44

11. It is stated by the petitioners that though respondent No. 6 was regularized by the order dated 10/12/2014, but the Service Rules did not provide for regularization of LDA-cum-Computer Assistant serving on ad-hoc/contractual or casual basis. Even the Executive Instructions being Memorandum dated 23/08/2007 and Memorandum dated 04/08/2008 provide that for such regularization of employees having five to ten years of service, the employees sought to be regularized should fulfill the eligibility criteria, including educational qualifications and they should also pass the suitability examination conducted by the department.

¶45

12. In this context, it is stated that respondent No. 3 has been regularized without following stipulations of the Memorandum dated 23/08/2007 and Memorandum dated 04/08/2008. It is stated that respondent No. 6 does not even have the requisite qualifications of a graduate degree. The petitioner also assails the regularization of respondent No. 7 vide order dated 12/12/2014 contending that her regularization is in violation of Article 14 and 16, and also dehors the Service Rules. It is stated that Office Memorandum dated 04/08/2008 issues instructions for regularization of contractual employees having three years of continuous service, but even here, suitability test has to be passed as conducted by the department under the Chairmanship of the Head of the Administrative Department with representation from P&AR Department and ATI. It is stated that respondent No.7 was not regularized in terms of the said memorandum.

¶46

13. The petitioners state that the Directorate vide Office Memorandum No. CLMCP/Estt-01/2022/900 dated 29/08/2022 circulated a tentative seniority list as on 01/08/2022 of LDA-cum-Computer Assistant and invited objections. In the said seniority list, the names of respondent No. 5 to 9 were placed above the petitioners, counting the seniority of the said private respondents from the date of their initial appointment and the seniority of respondent No. 6 and 7 have been counted from the date of their regularization. Pursuant thereof, the petitioners have submitted

¶47

Page No.# 7/27

¶48

representations dated 30/08/2022. In para-17 of the writ petition, the petitioners have stated that the respondent No.3 vide letter dated 19/09/2022 have written to respondent No. 2 furnishing particulars relating to the appointments or regularizations of the private respondents and that in the said letter, it was clearly mentioned that the private respondents have been appointed without open advertisement or departmental examination. The petitioners have also referred to an Office note of the Personnel & Administrative Reforms Department dated 01/05/2023 stating that when respondent No. 6 was appointed in 2005, it was prior to the implementation of the Service Rules and she had the requisite educational qualification of P.U at that time. It was stated in the said Note that the status-quo of seniority has to be maintained as petitioners were appointed in 2019, whereas their seniors were appointed or regularized between 2013 to 2017 which is prior to 03/08/2018, i.e the date on which the court had nullified Office Memorandum dated 01/08/2016, O.M dated 04/08/2008 and Office Memorandum dated 27/09/2019.

¶49

14. The petitioners have stated that the State respondents have not disposed of their representation and they have come to know that the seniority list circulated in which the private respondents were shown as senior to the petitioners is to be treated as settled and therefore, they have approached this court to ventilate their grievances. That, appointment of the respondent No. 4, 5, 8 and 9 was in violation of Service Rules, but also in violation of Executive Instructions and constitutional scheme and therefore, the service rendered by them pursuant to such illegal appointments should not be counted towards their seniority. Alternatively, it is also contended and pleaded that even if their appointments are not interfered with, they must rank below the petitioners in the seniority list.

¶50

15. In this context, the petitioner stated that the seniority issue between the private respondents and the petitioners arose for the first time when the Office Memorandum dated 29/08/2022 was issued circulating the tentative seniority list as on 01.08.2022. It is stated that as far as their knowledge goes, there is no previous seniority list of LDAcum-Computer Assistants under the Directorate.

¶51

Page No.# 8/27

¶52

16. The petitioners have contended in para-23 that the respondent No. 6 & 7 were regularized by the order dated 10/12/2014 and 12/12/2014 respectively but by that time the Service Rules were already in force and the said Service Rules does not provide for regularization of casual or contractual employees and therefore, such regularization was dehors the Rules. In these facts and circumstances, the writ petitioners have sought interference with the appointment of respondent No. 4, 5 8 & 9 and the regularization of respondent No. 6 & 7. The petitioners have also sought interference with the seniority list as on 01.08.2022 circulated by Office Memorandum dated 29.08.2022 by placing the petitioners above the private respondents.

¶53

Affidavit of the State respondents & petitioners’ reply thereof

¶54

17. The State respondents, being respondents No. 1, 2 and 3, filed a joint affidavit-inopposition through the Secretary, Government of Nagaland, Department of Legal, Metrology and Consumer Protection. It is stated in the affidavit that though the proposal for regularization was submitted by the Directorate to the Government but no action was taken by the Government, as the service of respondent No. 6 was confirmed on a permanent post, vide order dated 27/02/2020. It is stated that the services of the respondent No. 4, 5, 7, 8 and 9 were also confirmed similarly to permanent post, on recommendation of Medical Board and fulfillment of eligibility criteria vide order dated 01/03/2022.

¶55

18. The State respondents pleaded that the appointments of respondent No. 4, 5, 8 and 9 were between 2013 and 2017, with the approval of the Government and thus, vide appointment order and letter dated 23/05/2013 and letter and appointment order dated 26/11/2014 the appointments of respondent No. 4 and 5 were accorded Government approval. Similarly, vide letter dated 26/03/2016 and appointment order dated 07/04/2016, the appointment of respondent No. 8 was accorded Government approval. With regard to respondent No. 9, Government approval was accorded to the appointment vide letter dated 28/03/2017 and appointment order dated 30/03/2017.It is further stated that respondent No. 6 was appointed on casual basis as LDA on

¶56

Page No.# 9/27

¶57

30/08/2005 and subsequently, her service regularized on 10/12/2014 due to sincerity and efficiency and that her length of service was to be counted from the date of her appointment on 30/08/2005. Regarding her educational qualification, it was pleaded in the affidavit that her appointment being prior to the implementation of the Service Rules 2006, she had the requisite qualification of P.U at that time.

¶58

19. With regard to respondent No. 7, it was stated in the affidavit that she was temporarily appointed on contract basis as LDA-cum-Computer Assistant on 18/10/2011 and subsequently regularized on 12/12/2014 due to sincerity and efficiency in service. It is stated that though respondent No. 4 has been already promoted to UDA on 09/08/2022 and officiating promotion regularized and therefore, her name did not figure in the tentative seniority list but in compliance with this Court’s order dated 07/06/2023, her promotion as UDA has been put on hold.

¶59

20. In Para-10 of the affidavit, the State respondents have clearly stated that the seniority list was prepared as per the date of appointment and regularization. In para-14, it is stated that the P&AR department, the Government of Nagaland advised the Department of Metrology to maintain status-quo of the seniority list as the petitioners were appointed in 2019 while private respondents were appointed or regularized between 2013 and 2017. In para-14, however, the State respondents clarified and admitted that there was no seniority list for the Directorate Office staff in the past and seniority was always considered according to the date of appointment and regularization. The various documents were annexed with the affidavit of the State respondents.

¶60

21. The petitioners filed an affidavit-in-reply dated 12/10/2024 against the affidavit-inopposition filed by the State respondents. In the said reply affidavit, the petitioners contended and reiterated that as per the Rules of 2006, recruitment to the post of LDAcum-Computer Assistant was to be 100% direct recruitment and only a person so directly recruited in terms of Rule-7 could be confirmed in the service upon completion of the probation period.

¶61

Page No.# 10/27

¶62

22. In this context, the petitioners stated in the reply affidavit that the private respondents not having been appointed in accordance with Rule-7 of the 2006 Service Rules, their services could not have been confirmed as has been done and therefore, such confirmation is dehors the Service Rules. It is stated that the proposal of the respondents for regularization vide letter dated 05/06/2022 is itself indicative of the fact that their services need to be regularized and that the confirmation orders issued by the authorities is not regularization of the service.

¶63

23. The petitioners also stated in the reply affidavit that with regard to the contention of the State respondents that private respondent No.4, 5, 8 and 9 have been appointed with approval of the Government, the petitioners reiterated in the reply affidavit that their appointments were in violation of the Service Rules and so also the appointments of respondent No. 6 and 7. In para-6 of the reply affidavit, the petitioners stated that respondent No. 6 was appointed as LDA on casual basis on 30/08/2005 and after the coming in force of the Service Rules in 2006, when the respondent No. 6 was regularized on 10/12/2014, such regularization could not have been dehors the Rules.

¶64

24. Similarly, respondent No. 7 appointed on contract basis on 18/10/2011, was regularized on 12/12/2014, by which time the 2006 Service Rules were already in full force and therefore, the respondent No. 7 could not have been regularized dehors the Service Rules. In para-7 of the reply affidavit, the petitioners stated that as the initial appointment itself of respondent No. 4 was defective and not in accordance with Service Rules of 2006, the said private respondent could not have been given officiating promotion. In this context, the petitioners denied that the officiating promotion of respondent No. 4 was put on hold pursuant to order of this Court dated 07/06/2023. It is stated that rather by letter date 02/09/2022, the Government initiated for cancellation of the officiating promotion as it was in violation of the procedure prescribed.

¶65

25. The petitioners have contended in the reply affidavit that the initial appointments and subsequent regularizations of the private respondents being illegal, the services rendered by them cannot be counted towards their seniority and they cannot be placed

¶66

Page No.# 11/27

¶67

above the petitioners in their seniority list who have been appointed duly in accordance with the procedure prescribed by law. In para-8 of the reply affidavit, the petitioners have contended that though the petitioners were appointed in 2019 through direct recruitment and the private respondents were appointed between 2013 and 2017, but as their appointments and regularizations were illegal and dehors the Service Rules – therefore, the services counted by them cannot be reckoned towards their seniority placing them above the petitioners.

¶68

26. The respondents No. 4 and 5, both private respondents, who have been placed in the seniority list above the petitioners, leading the petitioners to assail the said seniority list in this writ petition. It is a different matter that the petitioners have also questioned the appointment and regularization of the private respondents. But their primary grievance is placing of the private respondents above the petitioners in the seniority list.

¶69

Affidavit-in-opposition of respondent No. 4 and 5 & petitioners’ reply thereof

¶70

27. In the affidavit-in-opposition filed by respondent Nos. 4 and 5, they stated that the respondent No. 4 was initially appointed as LDA -cum-Computer Assistant against the vacancy caused by the promotion of one incumbent and that the appointment was with the government approval order dated 23/05/2013 issued by Joint Secretary to the Government of Nagaland and corresponding appointment order dated 23/05/2013 was issued by the Controller, Legal Metrology and Consumer Protection Nagaland, Kohima. Similarly, respondent No. 5 was appointed in an identical post upon a vacancy caused by resignation vide government approval date dated 26/11/2014 and appointment order dated 26/11/2014. The respondents have referred to the seniority list dated 04/08/2022 wherein they were placed at Serial No. 1 and 2 above the petitioners. Subsequently, by the Office Memorandum dated 29/08/2022, a draft seniority list was also circulated seeking objections and the petitioners submitted the objection. It is stated that vide letter dated 19/09/2022, clarification regarding the mode of appointment in respect of seniority was conveyed to the Commissioner and Secretary, Department of Legal

¶71

Page No.# 12/27

¶72

Metrology, Government of Nagaland and in the same letter, the mode of appointment was clarified with justification.

¶73

28. The private respondents have contended in their affidavit that the petitioners were appointed in 2019, whereas the private respondents were appointed between 2013 and 2017. It is also stated about the officiating promotion to UDA given to respondent No.4 vide order dated 09/08/2022 which was subsequently cancelled vide order dated 29/09/2022. It is stated in paragraph-6 of the affidavit that the private respondent No. 4 and 5 were appointed vide order dated 23/05/2013 and 26/11/2014 respectively against existing posts with approval of government but the petitioners were appointed only in 2019 and that the private respondents were senior to the petitioners by several years. It is stated that the appointment of the respondents have in no way obstructed the appointment of the petitioners and therefore, they do not have locus standi to challenge the same. It is also stated that the seniority list dated 29/08/2022 does not have any legality or infirmity and that placing of senior employees above junior employees was justified procedure of law.

¶74

29. It is stated that the seniority of the petitioners cannot be claimed when they were yet to be born in the cadre. The petitioners submitted an affidavit-in-reply to the aforesaid affidavit-in-opposition by respondent No. 4 & 5. In the said reply affidavit, it is stated that as regards respondent No. 4, her entry into the service was dehors the Governing Service Rules, which is Nagaland Directorate Ministerial Service Rules, 2006 and therefore, her appointment was illegal from the outset. It is stated that the officiating promotion given to the respondent No. 4 was illegal, violative of the procedure and therefore, it was subsequently rescinded.

¶75

30. The petitioners have stated that prior to 29/08/2022 whereby the seniority list was circulated, there was no other seniority list of LDA-cum-Computer Assistant and the same has also been admitted by the State respondents in their affidavit-in-opposition. It is stated that their cause of action arose only when the private respondents were shown higher up in the seniority list than the petitioners and therefore, there is no delay or

¶76

Page No.# 13/27

¶77

laches on part of the petitioners in preferring the writ petition. The petitioners have reiterated and contended that the appointment of the respondent No. 4 and 5 were dehors the Rules and therefore, they cannot be placed above the petitioners in the seniority list.

¶78

Affidavit-in-opposition of respondent No. 6, 7 and 8 & petitioners’ reply thereof.

¶79

31. The respondent No. 6, 7 and 8 who are also private respondents have filed a joint affidavit-in-opposition. It is stated therein that respondent No. 6 was appointed on 27/08/2005 on casual basis and thereafter, regularized on 10/12/2014. Similarly, respondent No. 7 was temporarily appointed as LDA-cum-Computer Assistant on contract basis by order dated 18/10/2011 and thereafter, regularized on 12/12/2014. The respondent No. 8 was appointed as LDA-cum-Computer Assistant on 07/04/2016 against an existing vacancy caused by promotion of one Smti. Avita, who was promoted to the post of UDA. It is further stated that vide order dated 27/02/2020, the service of respond No. 6 was confirmed. Similarly, vide order dated 17/10/2022, the services of respondent No. 7 and 8 were also confirmed. It is stated that to their surprise, the department forwarded letter dated 05/06/2022 proposing to regularize the initial appointment as LDA-cum-Computer Assistant of respondent No. 6, 7 and 8 as well. These respondents were kept in the dark about this proposal and that their services had already been regularized by order dated 10/12/2014, 12/12/2014 and 07/04/2016 respectively. It is stated that on 08.01.2022, seniority list was prepared wherein respondent No. 6, 7 and 8 were mentioned as Serial No. 3, 4 and 5 and the petitioners as Serial No. 7, 8 and 9. It is further stated that on 29/08/2022, vide Office Memorandum, a tentative seniority list as on 01.08.2022 was circulated with 30 days to file an objection failing which the list was to be treated as final. It is also stated that subsequently vide letter dated 19/09/2022, clarification was issued regarding the mode of appointment in respect of seniority list with regard to the private respondents.

¶80

32. The respondent No. 6, 7 and 8 have contended that they were appointed and regularized much before the petitioners came into service and therefore, there is no

¶81

Page No.# 14/27

¶82

infirmity in placing them higher up in the seniority list above the petitioners. Against this affidavit of respondent No. 6, 7 and 8, the petitioners filed an affidavit-in-reply. In the said reply affidavit, the petitioners reiterated their stand that the respondent No. 6, 7 and 8 were appointed dehors the rules and therefore, they cannot claim seniority over the petitioners when the petitioners have been appointed following due process in terms of Rule 7 of the 2006 Rules governing the field.

¶83

Affidavit-in-opposition of respondent No. 9 & petitioners’ reply thereof

¶84

33. The respondent No. 9, one of the private respondents in the writ petition has also filed a separate affidavit in which she has stated that she was appointed vide order dated 30/03/2017 with effect from 01/04/2017 which is prior to the appointment of the petitioners who were appointed only in 2019. Interestingly, in the affidavit the respondent No. 9 has stated that the Office letter dated 05/06/2022 proposing regularization of her appointment was unacceptable and that she was not aware of the same and that it came to her knowledge only after filing of the present writ petition. The respondent No. 9 in her affidavit has stated that the source of employment of the petitioner and the respondent No. 9 may be different but they are all temporary employees and in this context, it is further stated that the respondent was appointed on 30/03/2017 whereas, the petitioners were appointed only in 2019 and therefore, the respondent is senior to the petitioners. It is stated that the petitioners are direct recruits whereas, the respondent is not but both are temporary employees and therefore, the direct recruits cannot be treated on a higher pedestal in matters of seniority which has to be counted from the date of initial appointment.

¶85

34. The petitioners have filed an affidavit-in-reply to the affidavit of the respondent No. 9. The petitioners have stated that the letter dated 05/06/2022 laying down the proposal for regularization of LDA-cum-Computer Assistant and UDA under the Director Legal Metrology & Consumer Protection was made and that the respondent figured as Serial No. 9. In this context, the petitioners in their reply affidavit stated that the said proposal could be made only because the department did not treat the initial

¶86

Page No.# 15/27

¶87

appointment of the respondent No. 9 as a regular appointment. It was further stated and reiterated that respondent was appointed in derogation of the service rules and therefore, it does not confer any right upon the respondent. It is stated that the petitioners were appointed through a selection process in terms of the Rules and therefore, the respondent who was appointed dehors the rules cannot be placed above the petitioners in seniority. It is stated that the approval letter of the Government dated 23/08/2017 would not confer any right to the respondent No. 9 in the context of the defect in her appointment. The petitioners reiterated and contended that due to such infirmity in the selection in the appointment of the respondent No. 9, the petitioners cannot be placed below the said respondent as has been sought to be done by the impugned seniority list.

¶88

Submissions of the learned counsels

¶89

35. The learned counsel for the petitioners submits that irregularity cannot be cured if the person does not qualify to be appointed in the first place. It is further submitted that the 2006 Rules, which are the governing rules – do not have any provision for regularization. It is admitted by the learned counsel as part of its submissions that it is the aspect issue of seniority which led to the immediate grievance of the petitioners. It is submitted that the letter dated 23/05/2013 does not give any right of appointment to respondent No. 4. It is submitted that the judgments indicated in the affidavit-inopposition of respondent Nos. 1, 2, and 3 do not help the case of the private respondents or the State respondents.

¶90

In support of his contentions, the learned counsel for the petitioners cites the following decisions:-

¶91

State of U.P. -vs- Rafiquddin , reported in 1987 (Supp) SCC 401 , paragraph 19.

¶92

Bhupendra Nath Hazarika -vs- State of Assam. (2013) 2 SCC 516 , paragraph 60.

¶93

Page No.# 16/27

¶94

Rubul Sarmah -vs- Simanta Pradip Choudhury. 2023 (3) GLT 786 , paragraph-27 to 30.

¶95

Nagaland Public Service Commission -vs- C.N. Moe & 3 Ors . WA No/17/2018, paragraph 19.

¶96

Monya Taipodia -vs- State of Arunachal Pradesh reported in (2012) 4 GLR 786 , paragraph 44.

¶97

M. Nakro -vs- State of Nagaland reported in (2009) 5 GLR 162 , paragraph 62 and 63.

¶98

State of Orissa -vs- Sukanti Mohapatra reported in (1993) 2 SCC 486 , paragraph 10.

¶99

Sanjay K. Sinha-II -vs- State of Bihar reported in (2004) 10 SCC 734, paragraph 12 and 17.

¶100

State of Bihar -vs- Chandradreshwar Pathak reported in ( 2014) 13 SCC 232 , paragraph 13.

¶101

Government of A.P. -vs- K. Brahmanamdam reported in (2008) 5 SCC 241 , paragraph16.

¶102

Secretary, State of Karnataka -vs- Umadevi(3) and Ors.,reported in (2006) 4 SCC 1 , paragraphs 15, 16, 34, 37, 43 and 53.

¶103

Ayaaubkhan Noorkhan Pathan -vs- State of Maharashtra reported in (2013) 4 SCC 465 , paragraph 9, 10 and 17.

¶104

Ajaya Kumar Das -vs- State of Orissa reported in (2011) 11 SCC 136 , paragraph 14.

¶105

K. P. Sudhakaran -vs- State of Kerala reported in (2006) 5 SCC 386 , paragraph 14.

¶106

Page No.# 17/27

¶107

36. The learned Sr. Government Advocate representing respondent Nos. 1, 2, and 3 submits that seniority has been computed in the instant case on the basis of the date of appointment and regularization and that there is no infirmity in the same and as the petitioners were born in service after the appointment and regularization of the petitioners, therefore, it is not justified on their part to claim seniority over the private respondents.

¶108

37. The learned counsel for respondent Nos. 4 and 5 submits that the petitioners cannot be aggrieved by the appointment of the respondents as they were not born in service at that time. It is submitted that respondent Nos. 4 and 5 were appointed as LDA-cumComputer Operator and have discharged 10 years in service. It is submitted that quashing of the appointment in the circumstances would not be in public interest. It is also submitted that the government approval dated 20/03/2013 is not under challenge by the petitioners. It is submitted that the respondent Nos. 4 and 5 are senior to the petitioners by more than 5 years and that seniority would be as per the settled law. In support of his contentions, the learned counsel for respondent nos. 4 and 5 cites the following decisions –

¶109

(i) Dr. Abolu N Yeptho & Ors. vs. State of Nagaland & Ors., 2025:GAUNI:355.

¶110

(ii) Mukul Saikia & Ors. vs. State of Assam & Ors., reported 2007(1) GLT 96.

¶111

38. The learned counsel for respondent Nos. 6, 7 and 8 submits that the respondent Nos. 6, 7 were appointed prior to the coming in force of the ministerial rules and that the said rules are not against regularization. It is submitted that the initial appointment of the respondent No. 6 is not under challenge by the petitioners. It is submitted that respondent No. 7 was appointed on 18/10/2011 and regularized on 12/12/2014 prior to the coming into service of the petitioners. It is also submitted that the approval to the appointment and regularization given by the government has not been challenged by the petitioner side. It is submitted that respondent Nos. 6 and 7 are senior to the petitioners

¶112

Page No.# 18/27

¶113

by 4 years and 6 months and that respondent No. 8 is senior to the petitioners by 3 years from the date of regularization. It is also submitted that the challenge to their appointment on the part of the petitioners after so many years is untenable. It is submitted that a subsequent order cannot be challenged without challenging the basic order in terms of the settled principle in administrative law. In support of his contentions, the learned counsel for respondent nos. 6, 7 and 8 cites the following decision:-

¶114

(i) K. Meghachandra Singh vs. Ningam Siro, reported in (2020) 5 SCC 689.

¶115

39. The learned counsel for respondent No. 9 submits that the petitioners have not challenged the approval order dated 28/03/2017 and have filed a writ petition challenging the appointment after 6 years delay. It is submitted that the appointment of the private respondents may not be disturbed.

¶116

40. The learned counsel for the petitioner replying to the submissions of the respondent side contends and submits that the appointments of the petitioners of the private respondents were illegal in terms of the law laid down by the Constitutional Bench and therefore, the same cannot confer the right of seniority to the private respondents over and above the petitioners. It is submitted by the petitioner side that the petitioners did not challenge till the issue crystallized owing to the infirm seniority list and therefore, they have locus-standi to file the writ petition. It is further submitted in this context that there is also no delay in filing the writ petition. It is submitted that the main order is the appointment order and that is under challenge and the nature of the appointment is also under challenge from the petitioner side. It is reiterated and submitted that the regularization of respondent Nos. 6, 7 and 8 is contrary to the service rules and that the petitioners have also challenged the regularization order.

¶117

41. It is submitted by the learned counsel for the petitioners that they challenge appointment along with the challenge to the seniority list. It is submitted that it is not essential to challenge the confirmation in view of the challenge mounted to the nature of appointment and to the seniority list.

¶118

Page No.# 19/27

¶119

Discussion and Decision

¶120

42. I have perused the pleadings of the writ petition and the annexed documents, the pleadings of the affidavits filed by the parties on both the sides, including the annexed documents thereof.

¶121

43. I have perused the relevant portions of the Nagaland Directorate Ministerial Service Rules, 2006.

¶122

44. I have considered the submissions of the learned counsels on both the sides and perused the decisions cited at the Bar.

¶123

45. There is no dispute that the governing rules of the subject matter are the Nagaland Directorate Ministerial Service Rules, 2006—which have been referred to earlier as the 2006 Rules in this judgment.

¶124

46. The procedure for selection to the post of LDA-cum-Computer Assistant has been provided in Rule 7. The said rule provides for 100% direct recruitment to the said post on the basis of aggregate marks obtained by candidates in the written exam/viva voce. The said Rule 7 needs to be gainfully extracted herein below:

¶125

“ PROCEDURE-7

¶126

For Direct Recruitment :

¶127

(i) There shall be a Selection Committee consisting of the persons mentioned under the Rule 6(i) above to select suitable candidates to the posts of Lower Division-cum-Computer Assistant which shall be by 100% Direct recruitment.

¶128

Direct recruitment to the posts of Lower Division Assistant shall be made according to the following procedure:

¶129

Page No.# 20/27

¶130

(1) The Appointing Authority shall make an annual assessment of the vacancies in this Cadre and inform the Committee as the case may be on the basis of vacancies required to be filled up by direct recruitment.

¶131

(2) The Selection Committee shall prepare a list of successful candidates in order of merit which shall be determined in accordance with the aggregate marks obtained by each candidate in the written exam/viva voce and recommend the names of such candidates to the Appointing Authority for appointment to the Service. The list as drawn up shall be valid for a period of six months from the date of its drawal.

¶132

(3) Principles underlying direct recruitment to various categories of posts shall be in accordance with the executive instructions/policy decisions issued in this behalf by the Government from time to time including reservation for Backward Tribes/Persons with Disabilities.

¶133

( ii) All persons shall be appointed to the service in the order in which their names are arranged in the list prepared in accordance with Rule 7 (i)(2).

¶134

( iii ) A person recruited under Rule 7 (i)(ii) shall join within thirty days from the date of issue of the order of appointment failing which and unless the Appointing Authority extend the period, which shall not exceed two months, the appointment shall be treated as can-celled.”

¶135

(emphasis added)

¶136

47. The petitioners have challenged the appointment as well as regularization of the private respondents, contending that such appointment and/or regularization is dehors

¶137

Page No.# 21/27

¶138

the 2006 Rules. However, despite such challenge to the appointment/regularization, it has been admitted by the petitioners that their primary grievance is the seniority list whereby they have been placed below the private respondents. In fact, during the submissions, the learned counsel for the petitioners has contended that the petitioners are primarily aggrieved by the aforesaid nature of the seniority list and that they would be satisfied if the seniority list is interfered with by placing them above the private respondents. This prayer of the petitioners is based on their primary contention that, as they have been recruited in terms of the rules (Rule 7), their rightful place in the seniority list is above the private respondents who, as contended by the petitioners, have been appointed/regularized dehors the 2006 Rules.

¶139

48. It would be relevant to look at Rule 16 pertaining to seniority, specially Rule 16(2), which provides that the seniority of persons recruited under Rule 7 shall be determined in accordance with their position in the merit list drawn up by the Selection Committee (SLC).The 2006 Rules ends with Rule 20 pertaining to repeal and savings.

¶140

49. On perusing the provisions of the said rules, this Court is unable to find any provision for recruitment and appointment to the post of LDA-cum-Computer Assistant other than by way of direct recruitment through written examination/viva voce. This Court is also unable to find any provision in the 2006 Rules regarding regularization.

¶141

50. As far as the private respondents (respondent Nos. 4 to 9) are concerned, it is an admitted position from the pleading of the parties and the annexed document in this regard, that they were not selected pursuant to any direct recruitment envisaged under Rule 7 of the 2006 Rules.

¶142

51 . In the writ petition, the petitioners has annexed as Annexure-25, a letter No. CLMCP/Estt-01/2002/498 dated 19/09/2022, addressed by the Additional Controller and HOD, Legal Metrology and Consumer Protection, Nagaland, to the Commissioner and Secretary of the said department of the Government of Nagaland. It has been stated that respondent Nos. 4, 5, 6, 7, 8, 9 respectively in the writ petition – have been appointed on departmental level without advertisement or departmental examination. The aforesaid

¶143

Page No.# 22/27

¶144

document dated 19/02/2022 has not been disputed by the State respondents or the private respondents. As per the said document, clarifying that the appointments of the respondents was on departmental level without open advertisement or departmental examination, it has been stated that respondent No. 4 was appointed on 23/05/2013; respondent No. 5 by orders dated 26/11/2014 and 01/12/2014; respondent No. 6 on 01/9/2005 and regularised on 10/12/2014; respondent No. 7 appointed on 01/10/2011 on contract basis and regularised on 12/12/2014; respondent No. 8 appointed on 26/3/2016 and 1/4/2016; respondent No.9 appointed on 28/3/2017 with effect from 01/04/2017.

¶145

52. Thus, I find that except for respondent No. 6, Vikhono Sakhrie, who was appointed on casual basis on 01/09/2005 and regularised in December 2014; all the other private respondents were appointed much after the coming into force of the 2006 Rules. Even the regularisation of respondent No. 6 on 12/12/2014 was after the coming into force of the 2006 Rules.

¶146

53. Thus, it is abundantly clear, as contended by the petitioners, that the private respondents were not appointed pursuant to any advertisement, departmental examination, or by way of any direct recruitment process. Except for respondent No. 6, the appointments of the other private respondents were made after the coming into force of the 2006 Rules, wherein Rule 7 provides for 100% direct recruitment to the post of LDA-cum-Computer Assistant. Even with regard to respondent No. 6, though she was appointed in 2005, her regularization took place in 2014, when the 2006 Rules were already in force. As already mentioned earlier, no provision for regularization was noticed in the said 2006 Rules. Now, that being the position, it remains to be adjudicated as to whether the seniority list dated 01.08.2022 placing the petitioners below the private respondents would be tenable in law.

¶147

54. In this regard, certain case laws relied upon by the petitioners may be looked at. In Rafiquddin (supra) , the Hon’ble Apex Court, in paragraph 19, referring to an earlier decision in Shitla Prasad Shukla v. State of UP, reported in 1986 Supp. SCC 185, referred to the earlier case wherein it was held that employees must belong to the same

¶148

Page No.# 23/27

¶149

stream before claiming seniority over others, and that those appointed irregularly belong to a different stream and cannot claim seniority over those who have been regularly and properly appointed. The relevant paragraph-19 of Rafiquddin (supra) may be reproduced herein below:

¶150

“ 19. The unplaced candidates were appointed to the service in breach of the Rules and they form a separate class. They cannot be equated with those who were appointed to the service from the first and second list of 1970 examination as their appointment was made on the recommendation of the Public Service Commission. They remain unchallenged. Similarly, candidates appointed to the service on the basis of the result of the competitive examination of 1972 before the unplaced candidates were appointed, formed separate class as they were also appointed in accordance with the Rules. The "unplaced candidates" of 1970 examination cannot claim seniority over them en the basis of Rule 22 as their appointment was not made on the basis of the list approved by the Commission under Rule 9. In Shitla Prasad Shukla v. State of U.P. and Ors. See JT 1986 S.C. 357 - Ed 1986 Supp. SCC 185, this court held that an employee must belong to the same stream before he can claim seniority vis-a-vis others. Those appointed irregularly belong to a different stream and they cannot claim seniority vis-a-vis those who may, have been regularly and properly appointed.”

¶151

(emphasis added)

¶152

55. In Sukanti Mohapatra (supra) , the Hon’ble Apex Court upheld—the decision of the Tribunal to not disturb the regularization done dehors the rules due to long service put in by the persons; however, the Hon’ble Apex Court clarified that the same would not have the effect of disturbing the seniority of the regular employees who rank senior to the irregular appointees. The relevant paragraph-10 may be reproduced herein below:

¶153

“ 10. Now even though the Tribunal came to the conclusion that Rule 14 did not permit regularisation made under the impugned orders of January 3, 1985 and February 14, 1985, it, having regard to the long service put in by the employees

¶154

Page No.# 24/27

¶155

named in the said two orders and on compassionate considerations has supported the regularisation under Article 162 of the Constitution. It has moulded the relief on such consideration. Since that part of the order has not been assailed and since the appellants cannot be worse of by appealing, we cannot interfere with that part of the order. It will, therefore, be worked out as directed by the Tribunal but we may clarify that it will not have the effect of disturbing the seniority of regular appointees who will rank senior to the irregular appointees. We may also clarify that any benefit derived by the irregular appointees under any interim orders contrary to the relief moulded by the Tribunal shall be adjusted and brought in tune with the said relief The benefit of this relief, to the extent relevant, will be given to irregular appointees covered under both the impugned orders of January 3, 1985 and February 14, 1985.”

¶156

(emphasis added)

¶157

56. Paragraph-17 of Sanjay K. Sinha-II (supra) is also relevant to the present adjudication and may be reproduced herein below:

¶158

“ 17. It is settled law that appointments made contrary to the rules are merely fortuitous and do not confer benefit of seniority on the appointees over and above the regular/substantive appointees to the service.

¶159

See C.K. Antony v. B. Muraleedharan and Others, [1998] 6 SCC 630, M.S.L. Patil, Asstt. Conservator of Forests, Solarpur (Maharashtra) and Others v. Sate of Maharashtra and Others, [1996] 11 SCC 361 and State of Maharashtra and another A. W. Dhope and Others v. Sanjay Thakre and Others, [1995] Supp 2 SCC 407.”

¶160

(emphasis added)

¶161

57. The Constitutional Bench judgment in Uma Devi (3) and Ors . (supra) is a watershed decision on the subject of regularization in service jurisprudence. With this

¶162

Page No.# 25/27

¶163

decision, the law on regularization in service law took a new direction, and thereafter, it meant that any regularization post- Uma Devi (supra) has to be within the ambit of the principles laid down in that decision.

¶164

58. In Ajaya Kumar Das (supra), the Hon’ble Apex Court made it clear that the rules framed under Article 309 of the Constitution cannot be tinkered with by administrative instructions or circulars. The relevant paragraph 14 is extracted herein below:

¶165

“ 14. Neither the Circular dated June 18, 1982 nor the subsequent Circular dated March 19, 1983 modifying the earlier Circular dated June 18, 1982 can override the statutory provision contained in Rule 74(b) of the Code if it results in reduction of pay of the employee on promotion. That Orissa Service Code has been framed under Article 309 of the Constitution of India is not in dispute. It is well settled that Statutory Rules framed under Article 309 of the Constitution can be amended only by a Rule or Notification duly made under Article 309 and not otherwise. Whatever be the efficacy of the Executive Orders or Circulars or Instructions, Statutory Rules cannot be altered or amended by such Executive Orders or Circulars or Instructions nor can they replace the Statutory Rules. The Rules made under Article 309 of the Constitution cannot be tinkered by the administrative Instructions or Circulars.”

¶166

(emphasis added)

¶167

59. Even in K.P. Sudhakaran (supra ), it was held in paragraph-14 that where statutory rules govern the field, prior executive instructions cease to apply .

¶168

60. In A.K Bhatnagar v. Union of India, reported in (1991) 1 SCC 544 , the Hon’ble Apex Court upheld the decision to place regularized candidates below the regularly selected candidates/recruits. The relevant paragraph may be reproduced hereinbelow.

¶169

Page No.# 26/27

¶170

61. In Dr. Abolu N Yeptho & Ors (supra), the Court noticed the settled legal position that consequential orders cannot be challenged without challenging the basic order, which in that case was the way the Cabinet decisions of 2020 and 2022. This decision relied upon by the learned counsel for respondent No. 4 and 5 would not in my view come to the aid of the respondents, as the petitioners cannot be placed lower in rank on the either seniority list to the private respondents, as petitioners have been regularly selected by way of direct recruitment vide Rule 7, whereas the private respondents have been appointed and regularized in a manner which is not provided for by the said Rules.

¶171

62. Similarly, the decision in Mukul Saikia (supra) would also not come to the aid of the respondents for a similar reason.

¶172

63. The decision in K Megha Chandra Singh (supra) relied upon by the learned counsel for the respondent No. 6, 7 and 8, notices the settled legal position that a person is disentitled to claim seniority from a date he was not borne in service. In my considered opinion, the said decision again would not help the respondents to defeat the case of the petitioners. The seniority of the petitioners is not being counted from prior to their date of appointment. However, Rule 7 of the 2026 Rules provides for only one mode of recruitment, i.e. direct recruitment and the petitioners have been directly recruited in terms of the said rule; various the respondents have been appointed without any advertisement or departmental examination as revealed by the communication dated 19-09-2022. Moreover, the 2006 Rules do not have any provision for regularization. As per Rule 7, recruitment to the post of LDA-cum-Computer Operator has been prescribed by direct recruitment to the extent of 100%. Therefore, in no circumstances, the private respondents could have been made senior to the petitioners who have been duly recruited by way of direct recruitment under Rule 7 of the 2006 Rules. This would also be so in view of the principles on seniority laid down by the Hon’ble Supreme Court in the above noticed case laws, pertaining to regularly recruited employees.

¶173

64. Thus, from the above, the legal position is clear that employees who have been duly recruited as per the statutory rules would be entitled to be placed higher in seniority

¶174

Page No.# 27/27

¶175

to employees who were appointed dehors the rules or regularized subsequently, even though their original appointments were not in keeping with the rules.

¶176

65. Keeping in mind the contention of the petitioners that their primary grievance is the aspect of seniority, this Court is not proceeding to interfere with the appointments or regularization of the private respondents.

¶177

66. However, in terms of the factual matrix vis-à-vis the legal position that has emerged, the seniority list dated 01.08.2022 is required to be interfered with. Accordingly, the said seniority list as on 01.08.2022, issued by Addl. Controller & HoD Legal Metrology & Consumer Protection Nagaland, Kohima vide Memorandum No. CLMCP/Estt-01/2022/900 dated 29.08.2022, whereby the petitioners have been placed below the private respondents, is set aside and quashed. The department shall prepare a fresh seniority list wherein the petitioners shall be placed above the private respondents (respondent Nos. 4 to 9). The above exercise shall be carried out within a period of 2(two) months from the date of this judgment.

¶178

67. In view of the above discussion, the writ petition stands allowed to the extent indicated above.

¶179

JUDGE

¶180

Comparing Assistant

Shri. Waluniba and 2 Ors. v. the State of Nagaland and 8 Ors.

Case brief

What is this about?

Shri. Waluniba and 2 Ors. v. the State of Nagaland and 8 Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Afjal Ali Vs the State of Assam and Anr.

Poragmoni Nath Vs the State of Assam

Matiur Rahman Vs the State of Assam

Muzammel Hoque and 2 Ors. Vs the State of Assam

Sanidul Islam Vs the State of Assam

Shri. Tibet Assumi Vs the State of Nagaland and Anr.