I. Chuba Jamir & Ors vs State Of Nagaland & Ors

2. Appellant no.1, I. Chuba Jamir was writ petitioner no.2 before the High Court, appellant nos. 2 to 2/4 are the heirs and legal representatives of writ petitioner no.3 who died in the course of litigation before the High Court and appellant no.3 Vilapral Aja was writ petitioner no.4 before the High Court. Appellant No.1 is reported to have retired during the pendency of the appeal.

3. The two appellants and the deceased writ petitioner sought to challenge the appointment/promotion of respondent No.3, who was earlier posted as Statistician-cum- Economist in the PWD and Housing department, as Assistant Director in the Nagaland Economics and Statistical Service as a consequence of the encadrement of the post held by him in the PWD and Housing department with the E & S Service. They also challenged the tentative gradation list of the officers of the Service issued on October 26, 1998 in which respondent No. 3 was placed above them.

4. Appellants 1 and 3 and writ petitioner No. 3 (since deceased) were all appointed as direct recruits, through Nagaland Public Service Commission as Statistical Officer (Class II Gazetted) in the Economics and Statistical Service of the State. Writ petitioner No. 3 was appointed on June 21, 1984 and appellants 1 & 3 on June 28, 1984. On July 25, 1990 five posts of Assistant Directors fell vacant when incumbents on those posts were promoted as Deputy Directors (Class I Gazetted) in the Directorate of Economics and Statistics. According to the appellants, by that time they had completed more than five years in service and were otherwise eligible for promotion as Assistant Directors in terms of the Nagaland Economics and Statistics Service Rules. They were, however, not considered for promotion at that time.

5. On February 2, 1988, on the recommendation of the Public Service Commission, the 3rd respondent was appointed to the post of Statistician-cum- Economist (Class I Gazetted) in the department of PWD and Housing. There being no avenues for his promotion in the department of PWD and Housing he made representations for transferring him along with the post to the State Economics and Statistical Service, giving an undertaking in writing that he would not claim the benefit of past service for the purpose of seniority. On December 21, 1992 the Government of Nagaland in the department of Planning and Co-ordination issued an order conveying "the approval of the Governor of Nagaland to the encadrement of the post of Statistician-cum-Economist (Class I Gazetted), Traffic Engineering Cell, under the department of Works and Housing Nagaland, created on 17.3.1980, with the Nagaland Economics and Statistics Service along with the incumbent Shri Y. Sacheo Ovung in the cadre of Assistant Director in the pay scale and with all other allowances admissible to that post. The order further stated that Y. Sacheo Ovung (respondent No. 3) was accordingly transferred to the department of Economics and Statistics but consequent upon the encadrement he would have no claim of seniority over the other officers already posted as Assistant Directors (E/S). His seniority in the cadre of Assistant Director (E/S) would be counted from August 13, 1992. He was posted in the department of Works and Housing as Assistant Director (E/S) with immediate effect. The order further stated that it was issued with concurrence of the Governor's Executive Council vide Agenda No.8 dated August 13, 1992.

7. On August 6, 1996 respondent No.3 was promoted to the post of Deputy Director in officiating capacity. On the same date appellants1 and 3 and writ petitioner no.3 were promoted as Assistant Directors. On October 26, 1998 a tentative seniority list of officers of the Economics and Statistical Service was circulated in which respondent No.3 was shown at serial No.7 and the writ petitioners were shown below him. The two appellants and the deceased writ petitioner spent the next two years in filing departmental representations and finally approached the Gauhati High Court by writ petition being W.P. (C) No.22(k)/1999, in substance challenging the respondent's encadrement as Assistant Director in the State Economics and Statistical Service that took place about 7 years ago in the years 1992-93. The writ petition was opposed by the State and respondent No.3 on the plea that it was a case of encadrement which was a matter of policy decision by the Government. Moreover, the writ petitioners had sat over the matter for more than 7 years and the writ petition was, therefore, liable to be rejected on grounds of delay and laches alone. A learned Single Judge of the High Court disposed of the writ petition by judgment and order dated July 14, 2000 with a number of directions in favour of the writ petitioners. The learned Single Judge accepted the case of the State that the encadrement of the post of Statistician-cum- Economist in the department of PWD and Housing along with its incumbent, respondent No. 3 with the State's Economics and Statistical Service was effected after due consultation with the concerned departments and with the approval of the Nagaland Public Service Commission. Further the decision of encadrement was taken at the highest level in the State Government. The learned Single Judge concluded that the decision of encadrement having been taken by the highest authority in the government of the State no interference in the matter was called for. The learned Single Judge also noted the contention on behalf of the respondents that the matter was being agitated after about 7 or 8 years and any interference at that stage would lead to a lot of dislocation. But he did not make any pronouncement on that issue whether for that reason the writ petition was liable to be dismissed or whether in the facts of the case the delay of seven or eight years was of no consequence. From this stage the learned Single Judge went on to hold that vacancies in the post of Assistant Director had arisen in the year 1990 itself when the writ petitioners were already eligible for promotion to that post. He further observed that had they been promoted as Assistant Directors in 1990 they would have ranked senior to respondent No.3. On that reasoning he directed that the writ petitioners should be deemed to have been promoted to the posts of Assistant Director notionally one day prior to the date on which respondent no.3 was appointed/promoted as Assistant Director. He further directed that the inter se seniority of the writ petitioners and respondent no.3 should be re-fixed accordingly. Further, following the redetermination of their inter-se seniority the post of Deputy Director, then held by respondent No. 3, would be filled up on regular basis taking into consideration the writ petitioners with their restored seniority.

20. In the light of the discussions made above, we find no merit in this appeal. It is accordingly dismissed but with no order as to costs.

..................................J. [TARUN CHATTERJEE] ..................................J. [AFTAB ALAM] New Delhi, July 17, 2009.

DATE : 17/07/2009 This matter was called on for pronouncement of judgment today.

Hon'ble Mr. Justice Aftab Alam pronounced the judgment of the Bench comprising Hon'ble Mr. Justice Tarun Chatterjee and his Lordship.

The appeal is dismissed with no order as to costs in terms of the signed judgment which is placed on the file.