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IN THE HIGH COURT OF GAUHATI (KOHIMA BENCH)
P.K. Musahary, J.
I. Ayangla Imchen - Appellants
Vs.
State of Nagaland and Ors. – Respondent
Decided On: 06.08.2008
Appointment - Challenge to validity of order - Nagaland Higher Education Service Rules, 2003 - Rule 8, Schedule II(3)(i) - Administrative posts - Fair selection for appointment - Unjust denial of right - Quashing of impugned order
Fact of the Case:
The petitioner, a senior Grade Lecturer, challenged the appointment of a junior Selection Grade Lecturer as Joint Director of Higher Education, alleging that the appointment was made without fair selection and in an arbitrary manner.
Finding of the Court:
The court found that the appointment of the junior Selection Grade Lecturer as Joint Director without fair selection was unjust, unfair, arbitrary, and illegal, and accordingly quashed the impugned order. The court directed the respondent-authorities to issue detailed guidelines for selection of candidates and initiate a fresh process of selection within a specified timeframe.
Issues: Validity of the appointment of a junior Selection Grade Lecturer as Joint Director without fair selection and in an arbitrary manner.
Ratio Decidendi: The court held that the appointment of administrative posts such as Joint Director should be made through fair selection from eligible members of the cadre based on merit and seniority, even if the existing rules do not specifically provide for such selection. The court emphasized the need to prevent unjust denial of the right of equally eligible or senior members of the cadre and to ensure fairness and justice in appointments to administrative posts.
Final Decision: The impugned order appointing the junior Selection Grade Lecturer as Joint Director was quashed, and the respondent-authorities were directed to issue detailed guidelines for selection and initiate a fresh process of selection within a specified timeframe. The petitioner's case was also to be considered along with other similarly situated and eligible candidates for transfer and posting as Joint Director.
P.K. Musahary, J.
1. By this application under Article 226 of the Constitution of India, the petitioner challenges the validity of the order dated 1.9.2006 (Annexure-F to the writ petition) passed by the Principal Secretary, Government of Nagaland, Higher Education Department.
2. To state the brief facts; the petitioner was appointed as a Lecturer through Nagaland Public Service Commission ('NPSC') w.e.f. 9.12.1978 in the Department of Higher and Technical Education and was subsequently placed as a Selection Grade Lecturer w.e.f. 9.12.1994 vide an order No. EDS/THE/1-12/94 dated 31.8.1995 issued by the Commissioner and Secretary to the Government of Nagaland, Department of Higher and Technical Education. She was transferred and posted at Dimapur Government College. Thereafter, the petitioner was transferred and posted as Principal of Sao Chang College, Tuensang by a Government Notification dated 19.10.2001 but she declined the post and presently serving as senior Grade Lecturer at Dimapur Government College.
3. The petitioner, being the senior most selection Grade Lecturer applied for appointment to the post of Joint Director of Higher Education under the provision of Nagaland Higher Education Service Rules, 2003 ('Rules'). The name of the petitioner was recommended along with the names of other two Senior Grade Lecturer for the said post and a proposal/panel was sent by the Additional Director, Higher Education to the respondent, Commissioner and Secretary vide letter No. HED/ADMN-APPTT/2005-06 dated 24.3.2006 (Annexure-E to the writ petition). The name of the private respondent No. 3, a Selection Grade Lecturer, was not recommended for the said post but she was transferred and posted as Joint Director of Higher Education against the vacant post vide impugned order No. EDS/THE/9-2/98 dated 1.9.2006.
4. Mr. Taka Masa, learned Counsel appearing for the petitioner submits that the respondent No. 3 is comparatively much junior in the cadre of selection Grade Lecturer and she does not come to the zone of consideration for the post of Joint Director and for that reason, her name was not included in the panel of eligible candidates sent by the Director to the Government. According to Mr. Taka Massa, the post of Joint Director of Higher Education is required to be filled up by selection from amongst the selection Grade Lecturer/Readers on the basis of merit cum seniority in-accordance with Rule 8 read with Schedule II(3)(i) of the rules. The respondents-authorities did not consider the case of the petitioner and other candidates whose names found placed in the panel sent by the Additional Director as aforementioned and appointed/posted the respondent No. 3 de hors the rules in a pick and choose manner and as such submits Mr. Taka Massa, learned Counsel for the petitioner, that the impugned order dated 1.9.2006 posting the respondent No. 3 as Joint Director is illegal and liable to be quashed.
5. No counter affidavit has been filed by the State respondents and also by the private respondent No. 3. No records have also been produced by the respondents-authorities in this case.
6. Mr. B.N. Sarma, learned senior Counsel appearing for the State-respondents submits that no counter affidavit is required for disposal of this matter because there is no controversy on facts and the matter is required to be disposed for on the basis of provision under the existing Service Rules namely, Nagaland Higher Education Service Rules, 2003. Mr. Sarma, learned senior Counsel refers to Rule 4 which provides gradation of post under Nagaland Higher Education Service comprising of 5(five) grades. Rule 4(i)(c) provides for Selection Grade which consists of several posts namely Joint Director, Selection Grade Lecturer, Reader and Selection Grade Librarian. These posts carry the same scale of pay of Rs.12,000-420-18,300 (UGC) as per Schedule I attached to the said rules. The post of Joint Director, according to Mr. Sarma, is not a promotional post as the post
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