Back
2008 Supreme(Gau) 515
IN THE HIGH COURT OF GAUHATI (KOHIMA BENCH)
Iqbal Ahmed Ansari and H. Baruah, JJ.
M. Nakro - Appellants
Vs.
State of Nagaland and Ors. - Respondent
Decided On: 22.07.2008
The Supreme Court reiterated the principles of service jurisprudence laid down in the Constitution Bench decision in Secretary, State of Karnataka v. Uma Devi and held that public employment must be governed by the constitutional scheme and that appointments must be made in accordance with the relevant Recruitment Rules. The Court also held that 'absorption' of 'deputationists' is not permissible unless it is provided for in the Recruitment Rules or unless there is a specific provision in the law authorizing such 'absorption'. The Court further held that past service cannot be counted towards 'seniority' unless the two posts are equivalent and that retrospective grant of 'seniority' is discriminatory and violative of the principles of natural justice.
Headnote:
[KEYWORD] - Public employment - Recruitment - Appointment - Absorption - Seniority - Office Memorandum - Recruitment Rules - Constitution Bench decision in Secretary, State of Karnataka v. Uma Devi - Principles of service jurisprudence - Legitimate expectation - Past service - Equivalence of posts - Retrospective effect - Discrimination - Regularization of service - Constitutional scheme of public employment - Article 309 of the Constitution of India.
Fact of the Case:
The appellant, who was appointed as a Lecturer in a Polytechnic College, was brought on 'deputation' to the Department of Power, Government of Nagaland, as SDO (Electrical). Subsequently, he was 'absorbed' in the Department of Power and granted 'seniority' with retrospective effect from the date of his appointment as a Lecturer. The private respondents, who were SDOs (Electrical) in the Department of Power, challenged the appellant's 'absorption' and the grant of 'seniority' to him.
Finding of the Court:
The High Court set aside the subsequent notification granting 'seniority' to the appellant with retrospective effect, but upheld the appellant's 'absorption' in the Department of Power. The appellant challenged the High Court's order in the Supreme Court.
Issues: (i) Whether the appellant's 'absorption' in the Department of Power was valid and in accordance with the relevant Recruitment Rules and the Office Memoranda issued by the State Government; (ii) Whether the appellant was entitled to 'seniority' with retrospective effect from the date of his appointment as a Lecturer; (iii) Whether the appellant's 'absorption' and the grant of 'seniority' to him were discriminatory towards the private respondents.
Ratio Decidendi: (i) The Supreme Court held that the appellant's 'absorption' in the Department of Power was not valid and in accordance with the relevant Recruitment Rules and the Office Memoranda issued by the State Government. The Court held that the Recruitment Rules did not provide for 'absorption' of 'deputationists' and that the Office Memoranda could not override the Recruitment Rules. (ii) The Court held that the appellant was not entitled to 'seniority' with retrospective effect from the date of his appointment as a Lecturer. The Court held that the appellant's past service as a Lecturer could not be counted towards his 'seniority' as an SDO (Electrical) as the two posts were not equivalent. (iii) The Court held that the appellant's 'absorption' and the grant of 'seniority' to him were discriminatory towards the private respondents. The Court held that the appellant had been given an unfair advantage over the private respondents, who had been appointed as SDOs (Electrical) through the regular recruitment process.
Final Decision: The Supreme Court dismissed the appellant's appeal and upheld the High Court's order setting aside the subsequent notification granting 'seniority' to the appellant with retrospective effect. The Court also held that the appellant's 'absorption' in the Department of Power was not valid and in accordance with the relevant Recruitment Rules and the Office Memoranda issued by the State Government.
I.A. Ansari, J.
1. Before we deal with this appeal on merit, certain facts, which were relevant and not in dispute in WP(C) No. 30(K)/2006, are set out as under:
(i) The five writ petitioners and respondent No. 6 in the writ petition (i.e., the present appellant) are B.E./B.Tech degree holders in Electrical Engineering. The petitioners were appointed as SDO (Electrical), in the Power Department, Govt. of Nagaland, as direct recruits, through selection process conducted by the Nagaland Public Service Commission ('the NPSC') during the period from 25.1.1994 to 16.3.2005. The respondent No. 6 (i.e., the present appellant) had participated, in the selection process, for the post of SDO (Electrical), conducted by the NPSC, in the year 1992, but failed to get selected. In the year 1993, respondent No. 6 (i.e., the present appellant), having been recommended by the NPSC for the post of Lecturer, was appointed, vide Govt. order, dated 6.10.1993, as Electrical Engineer, Class II (Gazetted), in Khelhoshe Polytechnic, Atoizu.
(ii) The service conditions of the petitioners, as employees of the Power Department, Govt. of Nagaland, are governed by Nagaland Engineering Service Rules, 1997 [Class I and Class II] ('the recruitment rules'), the recruitment rules having been framed by the state Government in exercise of powers under the proviso to Article 309 of the Constitution of India. Rules 7 and 8 of the Recruitment Rules provide for direct recruitment to the posts of Assistant Engineer/SDO, through NPSC, to the extent of 60% and 1 40% of the total vacant posts of Assistant Engineer/SDO are to be filled up by promotion from the Grade of Junior Engineers, who may possess requisite qualification as laid down under the Recruitment Rules. There is no provision, in the Recruitment Rules, for bringing any officer to the level of Assistant Engineer/SDO on 'deputation' nor do the rules provide for appointment to the post of Assistant Engineer/SDO, on 'transfer', from any other department or service. The Recruitment Rules also do not have any provision for 'absorption' of persons, brought, on 'deputation', to the posts aforementioned.
(iii) For the purpose of regulating the filing up of the vacant posts on 'deputation' and on permanent 'absorption' of the 'deputationists', in general, the Govt. of Nagaland issued an office memorandum as far back as on 17.9.1986. Under this memorandum, appointment on 'deputation', when considered necessary and justified, shall be made only after due advertisement/circulation of the vacancy and the selection of the candidates has to be done by a Selection Board. The conditions precedent for appointment on 'deputation', which office memorandum, dated 17.9.1986, aforementioned, embodies, were, however, not followed, when respondent No. 6, (i.e., the present appellant), who was, at the relevant point of time, serving as a lecturer, as stated hereinbefore, was appointed as SDO Electrical, in the Department of Power, on 'deputation', by order, dated 15.12.1998, issued, in this regard, by the Commissioner and Secretary to the Govt. of Nagaland, Department of Power.
(iv) On 31.10.2002, the Association of Power Engineers, commonly known as 'APEN', submitted a representation to the respondents/authorities concerned requesting them to stop bringing officers on 'deputation' and not to extend further services of the deputationists, in the Department concerned. As the representation, so made, did not yield requisite result, the APEN submitted another representation, dated 5.6.2003, to the Chairman, NPSC, pointing out to him the violation of the Recruitment Rules in the matter of bringing of 'deputationists' and their 'absorption'. By this representation, dated 5.6.2003, the APEN drew, in particular, attention of the Chairman, NPSC, to the case of respondent No. 6, by stating. Inter alia, that the respondent No. 6 (i.e., the present appellant), had earlier failed to qualify in the selection process meant for filing up of the pos
