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GAUHATI HIGH COURT
V.Dutta Gyani, H.K.Kumar Singh, JJ.
Lukhevi Sema -Appellant
Versus
State of Nagaland -Respondent
Writ Appeal Nos. 505 and 494 of 1995
Decided On : 07-04-1998
NAGALAND EDUCATION SERVICE - VGCO POST - EX CADRE POST - SENIORITY - QUALIFICATION - APPOINTMENT - PROMOTION - ROP RULES - NAGALAND (ADMINISTRATIVE) EDUCATION SERVICES RULES, 1977 - ARTICLE 14 AND 16 OF THE CONSTITUTION.
Fact of the Case:
The petitioner, a graduate teacher, was appointed as Social Education Officer, a Class II Gazetted post, on probation for a period of one year, subject to training in the NCERT. The post was later re-designated as Vocational Guidance and Counselling Officer (VGCO). The petitioner claimed seniority above other officers in the Class I Gazetted list, contending that the post of VGCO was a Class I post and that he was eligible for promotion to the next higher post. The State Government contended that the post of VGCO was an ex cadre post and that the petitioner was not eligible for promotion.
Finding of the Court:
The Court held that the post of VGCO was an ex cadre post and that the petitioner was not eligible for promotion to the next higher post. The Court also held that the petitioner did not possess the requisite qualification for holding the post of VGCO, which required a Master's Degree in Education/Psychology with a minimum of 48% marks. The Court further held that the petitioner had misled the department by submitting a joining report stating that he had completed the Diploma course in VGCO, when in fact he had only been awarded a certificate of attendance.
Issues: 1. Whether the post of VGCO was an ex cadre post? 2. Whether the petitioner was eligible for promotion to the next higher post? 3. Whether the petitioner possessed the requisite qualification for holding the post of VGCO?
Ratio Decidendi: 1. The Court held that the post of VGCO was an ex cadre post, as it was created for a specific purpose and period, and the petitioner had been holding the post since 1985 without going through the proper selection process. 2. The Court held that the petitioner was not eligible for promotion to the next higher post, as he did not belong to the regular service of the Education Department and did not possess the requisite qualification for the post of VGCO. 3. The Court held that the petitioner did not possess the requisite qualification for holding the post of VGCO, as he did not have a Master's Degree in Education/Psychology with a minimum of 48% marks.
Final Decision: The Court allowed the appeals filed by the State of Nagaland and the aggrieved officers, and quashed the impugned order passed by the learned Single Judge.
This writ appeal is directed against the judgment dated 10.8.95 passed by the learned Single Judge of this Court in Civil Rule No.129 (K) of 1994 thereby holding that (1) the post of Vocational Guidance and Counselling Officer, for short VGCO in the Directorate of School Education, Nagaland was not an ex cadre post; (2) appointment order dated 20.12.85 appointing the writ petitioner respondent No.3 to the post of VGCO was a Class I post and that he was senior to the other private respondents and eligible for consideration for promotion to the next higher post. Aggrieved by the same, the appellants have preferred this appeal.
2. Heard Mr.Mislira, learned counsel for the appellants and Mr. Saikia, learned counsel assisted by Mr. J. Chutia and learned Govt. Advocate, Mr.Khataniar for the respondents. Few basic facts now be noted.
3. The writ petitioner respondent Tohoshe Sema working as VGCO, filed writ petition No. 129(K)/94 challenging the seniority list of Class I Gazetted officers as on 1.1.93 published vide order dated 9.7.93, Annexure G to the writ petition. By this seniority list of Class I Gazetted officers of the Education Department of the Govt. of Nagaland was fixed. The writ petitioner also challenged order dated 5.4.94, Annexure H to the petition whereby the respondents Govt. of Nagaland informed him that the post of VGCO was and ex cadre post and the writ petitioner respondent was appointed to the said post out of his cadre of graduate teachers. By the same letter dated 5.4.94 he was further informed that his representation for promotion to the post of Deputy Director, Education cannot be considered in view of the above fact.
4. It was the petitioner's case that he joined in the Education Department as Headmaster of Govt. Middle School on 1.6.78. In February, 1981 he was posted at Zunheboto as a graduate teacher and as claimed by him, he is also entrusted with the additional responsibility of promoting qualitative education for all round development of the students designating him as Education Secretary. Admittedly there was no order to this effect. He joined in the Directorate of Education in 1982 as Education Secretary in the same scale of pay as that of a graduate teacher. It is the petitioner's claim that as Education Secretary it was his duty to coordinate the students and the community relations promoting individual character of the students which, necessitated his frequent visit to different educational institutions in the State to impart self discipline and moral values and organise students talent programmes and inter action activities between the teachers and the parents. On his own showing by order dated 20.12.85 he was given officiating promotion to the post of VGCO by redesignating the existing post of Social Officer which was admittedly Class II Gazetted post. By yet another order of even dated (20.12.85) the petitioner was promoted as Social Education Officer in the scale of pay of Rs.900-30-2,080/- per month. The appellants have filed copies of the order dated 20.12.85 as Annexure 1 and 2 respectively.
5. It was the writ petitioner's case that the order appointing him as Social Education Officer was an erroneous one, which was corrected by corrigendum dated 11.11.87 replacing the post of VGCO to be read in place of 'Social Education Officer' in order dated 20.12.85.
6. Mr. Mishra, learned counsel appearing for the appellants contended that the post of VGCO is conspicuously missing from the list of posts either in Class I or Class II of the Nagaland (Administrative) Education Service which definitely states various cadre posts under the Directorate of School Education. The post of Social Education Officer thus figured in Nagaland Education Service Rules, 1977 as Class II post under Rule 4 which also prescribes the qualification and scale of pay. Mr. Saikia, learned senior counsel appearing for the petitioner-respondent on the other hand maintained that the petitioner was drawing the pay
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