2019 Supreme(Gau) 1081

IN THE HIGH COURT OF GAUHATI AT KOHIMA BENCH
N. KOTISWAR SINGH, J.
Augustine M. Yanthan and Ors. - Appellant
Versus
State of Nagaland and Ors.- Respondent
W.P. (C) No. 222 (K) of 2017
Decided On : 20-05-2019

Headnote:

Constitution of India – Article 14 16 166 309 – Nagaland Planning Machinery Service Rules, 2010 – Nagaland Planning Machinery Service Rules, 2013 – Recruitment, Promotion and Seniority in Service – Learned senior counsel for the petitioners submits that this Court in the earlier writ petition, W.P.(C) No. 53(K) had already given a judicial finding that the post of OSD (Skill Development) and the post of ADC are different and are not in the same cadre and as such, contrary to such a judicial finding, the Cabinet or the State Government could not have taken such a decision to the effect that the post of OSD shall be treated as a regular post in the rank and pay of Assistant Development Commissioner, which is impermissible in view of law laid down by the Honble Supreme Court in the State of Tamil Nadu Vs. State of Kerala & Anr., (2014) 12 SCC 696, in which it has been held that no statute can be enacted which would nullify the judgment of the Court – From the rival contentions as discussed above, the following legal issues are also required to be considered by this Court while deciding the other co-related issues – (i). Whether a cabinet decision can be challenged before the Court and be interfered by the Court? – (ii). Whether the cabinet can take a decision contrary to a judicial finding arrived at by the Court on any issue? – Held, It is now well settled that a Cabinet decision cannot be challenged unless it violates any statutory or Constitutional provision, as normally cabinet decisions pertain to policy matters of which the scope of judicial review is limited – However, there is no settled law that a Cabinet decision can never be challenged and is beyond the scope of the judicial review – If the Court finds that the same is contrary to law or any statutory or legal provisions, the Court certainly can examine and if necessary, interfere with the same, more so, if it violates any Constitutional provision – From the above, what can be clearly inferred is that a policy decision taken by the State would normally not interfered by the Courts – However, if the same is in violation of any statutory provision or of the Constitution, more particularly any fundamental right, certainly it would be subject to judicial review, and these can be challenged before the Court of law – What this Court had concluded in the said writ petition was that these two posts are not in the same cadre – Equivalence of post and being in the same cadre are two separate aspects though they are inter-linked – Merely because the Court held that these two posts do not belong to the same cadre, does not necessarily mean that they cannot be at the same rank which is that what the Cabinet had decided – Accordingly, this Court is of the view that the aforesaid Cabinet decision treating the post of OSD (Skill Development) to be in the same rank as the post of ADC cannot said to be contrary to the decision of this Court in the aforesaid writ petition, WP(C) 53(K) – Even if the State Government may have a wide discretionary power to make rules to regulate the mode of appointment and conditions of service, nevertheless, it must be subject to other provisions of the Constitution including Article 14 of the Constitution of India which mandates equality of opportunity to all citizens – The mandate of Article 14 or 16 is not confined to idea of equal opportunity, but is also about absence of arbitrary or discriminatory actions on the part of the State – Therefore, if the action of the State is found to be arbitrary, unreasonable and discriminatory, such action in exercise of the powers under Article 309 of the Constitution of India would be liable to be interfered with by the Court – As regards the contention of the respondents that the petitioners themselves had entered service in a similar manner without facing regular selection process, this Court is of the view that it does not have much merit for the reason that the State authority had never framed the service rules and even if they had entered service in the aforesaid fashion, this will not justify any action on the part of the authority vis-à-vis the Respondent No. 4, if such action is not in accordance with law – For the reasons discussed above, the present petition is partly allowed by declaring the aforesaid second Cabinet decision to make the Respondent no. 4 eligible for promotion to the post of Deputy Development Commissioner in advance to be illegal, and as regards the third Cabinet decision, the same is modified to the extent that the authorities will be at liberty to frame the necessary draft service rules in respect of all the posts in accordance with law without any specific reference to the second decision of the Cabinet – It goes without saying that the petitioners would be at liberty to challenge the service rules, if the same are found to be arbitrary, discriminatory and the issues not specifically decided in this petition are left open to be decided in appropriate proceedings – Petition Partly Allowed