Back
2008 Supreme(Gau) 19
IN THE HIGH COURT OF GAUHATI (KOHIMA BENCH)
IQBAL AHMED ANSARI, J.
Nitoli and Ors. – Appellant
Vs.
State of Nagaland and Ors. – Respondent
Decided On: 08.01.2008
The main legal point established in the judgment is that appointments and regularization of employees must adhere to the relevant recruitment rules, and irregular appointees cannot claim seniority over regular appointees.
Headnote:
Recruitment Rules - Absorption of Contractual Employees - Nagaland Taxation Service Rules, 1976 - Rule 5, Rule 6, Rule 7, Rule 8 - Seniority List - Regularization - Competitive Examination - Direct Recruitment
Fact of the Case:
The case involved the regularization and seniority of ad-hoc and contractual employees in the Nagaland Taxation Service. The petitioners sought to set aside the regularization orders and the final seniority list, and to restore their seniority over the ad-hoc employees.
Finding of the Court:
The court found that the appointments of the ad-hoc and contractual employees were de hors the relevant rules and were illegal. It held that the regularization of their services was against the law and not permissible. However, the court did not set aside the regularization orders but directed the state respondents to treat the ad-hoc employees as junior to the writ petitioners.
Issues: The main issues were the legality of the appointments and regularization of ad-hoc and contractual employees, and the determination of seniority in the cadre of Income Tax Inspector.
Ratio Decidendi: The court relied on the Nagaland Taxation Service Rules, 1976, and established that the appointments and regularization of the ad-hoc and contractual employees were illegal. It also cited the principle that irregular appointees cannot claim seniority over regular appointees and directed the state respondents to treat the ad-hoc employees as junior to the writ petitioners.
Final Decision: The court set aside the impugned seniority list and directed the state respondents to treat the ad-hoc employees as junior to the writ petitioners in the cadre of Income Tax Inspector.
I.A. Ansari, J.
1. The moot question, raised in the present writ petition, is this: In the absence of any provision, in the relevant recruitment rules, for absorption of contractual or ad-hoc employee in a given cadre and/or in the absence of any provision, in the relevant recruitment rules, for relaxation of the conditions of recruitment, is it possible to absorb and/or regularize the service of an ad-hoc or contractual employee, particularly, when the conditions of recruitment are governed, in the given case, by the recruitment rules framed under the proviso to Article 309 of the Constitution of India? Yet another question of immense importance, raised in the present writ petition, is this: whether an employee, who has been absorbed in a cadre contrary to the relevant recruitment rules, can be allowed to become senior to a regularly recruited person in the same cadre?
2. Before I endeavour to answer the questions posed above, the undisputed material facts, which have given rise to the present writ petition, may be set out as under:
(i) The recruitment to the various cadres in the Nagaland Taxation Service is governed by the Nagaland Taxation Service Rules, 1976, framed by the Government of Nagaland in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. The members of the Nagaland Taxation Service, Class-Ill (Non-Gazetted), who are called Inspector of Taxes, constitute a separate cadre under the Nagaland Taxation Service Rules, 1976 (in short, 'the Service Rules, 1976'). Rule 5 of the Service Rules, 1976, prescribes two distinct and separate modes of recruitment to the said cadre, namely, (a) by promotion in accordance with Rule 7 and (b) by competitive examination in accordance with Rule 8. Rule 6 lays down that 25% of the vacancies in the cadre of Inspector of Taxes shall remain reserved for departmental promotion and the remaining 75% shall be filled up through direct recruitment. Thus, under the Service Rules, 1976, one can be appointed as Inspector of Taxes either by way of departmental promotion or by direct recruitment through a selection process to be conducted by the Nagaland Public Service Commission.
(ii) By order, dated 30.01.1996, issued by the Commissioner of Taxes, Government of Nagaland, while respondent No. 3 herein was appointed, on ad-hoc basis, as an Inspector of Taxes, respondent No. 4 herein was appointed as an Inspector of Taxes, on contract basis, by order, dated 23.07.2001, issued by the Commissioner of Taxes, Government of Nagaland. As far as the petitioner Nos. 1 to 8 herein are concerned, they were appointed, following a due process of recruitment as contemplated under the Service Rules, 1976, as Inspector of Taxes on regular basis, by order, dated 27.11.2002, issued by the Commissioner of Taxes, Government of Nagaland. So far as the petitioner No. 9 to 11 herein are concerned, they came to be appointed as Inspector of Taxes, on the basis of the regular recruitment, in terms of the order, dated 18.02.2004, issued by the Commissioner of Taxes, Government of Nagaland. On 09.02.2004, a tentative Seniority List, showing the seniority of the Inspectors of Taxes, as on 31.12.2004, was published by the Government of Nagaland. However, in the aforesaid Seniority List, the names of the private respondents did not figure at all. By two separate orders, both, dated 08.07.2004, issued by the Commissioner of Taxes, Government of Nagaland, while the service of respondent No. 3 was regularized in the cadre of Inspector of Taxes with effect from 01.02.1996, the service of respondent No. 4 was regularized with effect from 24.07.2001. Both these regularization were, however, subject to the passing of a departmental examination by the respondent Nos. 3 and 4 within a period of two years from the date of the issue of the orders, dated 08.07.2004, aforementioned. Though none of these two private respondents appeared in any selection process for direct recruitment as contempl
