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2018 Supreme(Gau) 1595
IN THE HIGH COURT OF GAUHATI AT KOHIMA BENCH
KALYAN RAI SURANA, J.
Limayanger Ao and Ors - Appellant
Versus
State of Nagaland and Ors - Respondent
WP(C) Nos. 87 (K) and 88 (K) of 2017
Decided On : 31-10-2018
For the Appellant :Taka Masa Ao, Sr. Advocate, Arenlong Longkumer and Khrievono Seletsu, Advocates
For the Respondent:K. Wotsa, Sr. G.A., R. Iralu, Sr. Advocate, K.L. Solo, L. Iralu, Mhabeni and Mhechete-u, Advocates
Headnote:
Constitution of India, 1950 - Articles 226, 14 and 16 - Educational - It is projected that there are different grades of post of Pharmacists Pharmacist Grade-n Pharmacist Grade-I Senior Pharmacist Head Pharmacist District Pharmacy Officer/Deputy Chief Pharmacist Chief Pharmacist/Deputy Director - Case projected in writ petition is that petitioner is now serving as District Pharmacy Officer - At time of his appointment as a Pharmacist by order petitioner was then a Diploma holder in Pharmacy and while in service having availed due permission from authorities he had obtained Degree of Bachelor of Pharmacy on 02 -12 -2006 and was placed in First Class - It is projected that private respondents who are also holders of Degree of Bachelor of Pharmacy were initially appointed as Pharmacist by various orders passed as appears from Tentative Seniority List of Pharmacist notified by order - It is projected that three classes of Pharmacists had made their entry in service being Certificate holders Diploma holders and Degree holders and in absence of any Service Rules seniority of Pharmacists were reckoned from date of initial appointment irrespective of educational qualification of Pharmacists - Held, Thus comes into eligible pool earlier and is ranked higher for purposes of consideration for promotion date of his having acquired degree becoming material - No doubt earlier norms being adopted as per an affidavit filed by respondent No - 1 was of seniority having precedence but then that was not when this rule providing for accelerated possibility of promotion to diploma holders on acquiring a degree was in question - promotion rules were amended in pursuance to representations received from diploma holders who wanted to shift stream by acquiring a degree and thus a quota was carved out for them - If they want to get promotion through this quota then their seniority in this quota would alone be criteria date of acquiring degree and not period rendered in service as a diploma holder that is why some period of service has to be post acquiring degree - Writ petitions are dismissed.
KALYAN RAI SURANA, J.
1. Heard Mr. Taka Masa Ao, the learned Senior Advocate, assisted by Mr. Arenlong, the learned Advocate for the petitioners in both writ petitions. Also heard Mr. K. Wotsa, the learned Senior Govt. Advocate appearing for State Respondents No. 1 and 2 in both the writ petitions and Mr. R. Iralu, the learned Senior Advocate, assisted by Mr. L. Iralu, the learned Advocate for the private respondents No. 3 to 7 in W.P.(C) No. 87(K)/2018 and private respondents No. 3 to 16 in W.P.(C) No. 88(K)/2018.
2. By W.P.(C) No. 87(K)/2018, filed under Article 226 of the Constitution of India, the petitioner has challenged the impugned (i) order No. HFW-7/A/12/2007/504 dated 09.06.2016 (Annexure-18) issued by the Commissioner & Secretary to the Govt. of Nagaland, Health & Family Welfare Department (hereinafter referred to as H & FW Department); (ii) order No. HFW-7/A/12/2007/504 dated 09.06.2016 (Annexure-19) issued by the Commissioner & Secretary to the Govt. of Nagaland, H & FW Department; (iii) order No. HFW-7/A/12/2007/504 dated 09.06.2016 (Annexure-20) issued by the Commissioner & Secretary to the Govt. of Nagaland, H & FW Department; and (iv) HFW-7/A/12/2007/118 dated 27.04.2017 (Annexure-21) issued by the Commissioner & Secretary to the Govt. of Nagaland, H & FW Department. By challenging the said orders, the petitioner is seeking restoration of the seniority of the petitioner over the private respondents to the post of Senior Pharmacist, Head Pharmacist, Deputy Chief Pharmacist/District Pharmacy Officer, and for a direction to the authorities to consider the case of the petitioner for promotion to the post of Chief Pharmacist/Deputy Director under the Directorate of H & FW Department.
Case in the writ petition:
3. As requested by the learned Senior Advocate for the petitioner and agreed to by the learned Senior Advocate for the private respondents and the learned Senior Govt. Advocate, the facts of W.P.(C) No. 87(K)/2017 is taken as a lead case.
4. It is projected that there are different grades of the post of Pharmacists, (i) Pharmacist Grade-n, (ii) Pharmacist Grade-I, iii) Senior Pharmacist, (iv) Head Pharmacist, (v) District Pharmacy Officer/Deputy Chief Pharmacist, (v) Chief Pharmacist/Deputy Director (Pharmacy).
5. The case projected in the writ petition is that the petitioner is now serving as District Pharmacy Officer, Mon, Nagaland. At the time of his appointment as a Pharmacist by order dated 13.03.2000, the petitioner was then a Diploma holder in Pharmacy and while in service, having availed due permission from the authorities, he had obtained the Degree of Bachelor of Pharmacy on 02.12.2006, and was placed in the First Class.
6. It is projected that the private respondents who are also holders of Degree of Bachelor of Pharmacy were initially appointed as Pharmacist by various orders passed between 28.07.2003 to 20.09.2006, as appears from the Tentative Seniority List of Pharmacist, notified by order dated 19.04.2012. It is projected that three classes of Pharmacists had made their entry in service, being (i) Certificate holders, (ii) Diploma holders, and (iii) Degree holders and in the absence of any Service Rules, the seniority of the Pharmacists were reckoned from the date of the initial appointment, irrespective of the educational qualification of the Pharmacists.
7. It is projected that there was no Service Rules for the Pharmacists in the State. Hence, the State Govt. by notification dated 13.09.2010, had constituted a Cadre Review Committee to restructure the pharmacy cadre. Thereafter, by an order dated 03.09.2012, a Board was constituted for Cadre Review. The said Board by a Minutes of Meeting held on 04.09.2012, had submitted a proposal showing details of requirement of Pharmacists covering various programmes in the Department. Accordingly, the Principal Director, Health & Family Welfare Department, by a letter dated 09.11.2012, submitted the observations of the Board to the Govt. on Cadre Re
