IMPORTANT POINT
The debarring of the petitioners from promotion based on their engineering discipline violated their fundamental rights under Articles 14 and 16 of the Constitution, and was deemed arbitrary and unreasonable.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. A. Zhimomi, the learned counsel appearing on behalf of the Petitioners and Ms. Livika V. Sumi, the learned Government Advocate appearing on behalf of the Respondents.

2. The jurisdiction under Article 226 of the Constitution have been invoked by the two petitioners challenging the Memorandum dated 26.03.2018 whereby the Petitioners who were at Serial Nos. 471 and 472 have been held to be not eligible for further promotion to the higher grade.

3. The Petitioner No. 1 was initially appointed as a Sectional Officer, Grade-I on the basis of an office order dated 15.06.1998. The said appointment was made on contract basis. The said engagement of the Petitioner No. 1 was extended from time to time. Subsequently, vide an order dated 14.12.2006, the services of the Petitioner No. 1 was regularized w.e.f. 26.10.2006.

4. The Petitioner No. 2 was initially appointed on the basis of an office order dated 09.06.2003 and was appointed as Sectional Officer, Grade-II on provisional basis. In the year 2007, vide an order dated 14.12.2007, the Petitioner No. 2 was offered officiating promotion to Sectional Officer, Grade-I. Subsequent thereto, on 15.06.2009, the services of the Petitioner No. 2 was also regularized. At this stage it is very pertinent to mention that both the Petitioners are Diploma holders in Mechanical Engineering as would appear in the Memorandum dated 26.03.2018 itself.

5. On 24.01.2012, a tentative seniority list of Junior Engineers serving in the Department of Works and Housing was circulated. In the said seniority list, the names of the Petitioners were at serial No. 285 and 305. Sometime in the year 2016, the Petitioners came to learn that their names would be removed from the seniority list. Accordingly, the Petitioners along with two others submitted a representation on 21.03.2016 for inclusion of their names in the seniority list. Thereupon, on 26.03.2018, the seniority list was published wherein the Petitioners’ name though were found at Serial Nos. 471 and 472 but a Note was appended in the said list wherein it was recorded that the persons at Serial Nos. 442 to 503, certificate course and others shall not be eligible for further promotion to the higher grade. It is also relevant to mention that subsequent thereto, vide an order dated 28.11.2019, the services of the Petitioners along with other Junior Engineers were confirmed by Government of Nagaland on completion of the probation period and on the recommendation of the State Medical Board. The Note-3 appended to the Memorandum dated 26.03.2018 had been assailed by the Petitioners on the ground that the said is contrary to the Nagaland Engineering Service (Group-A and Group-B) Rules, 2012 (for short “the Rules of 2012”) and more particularly Rule 7 which stipulates the method of recruitment and the eligibility for the purpose of promotion to the post have also been stipulated in Schedule-VII.

6. Mr. A. Zhimomi, the learned counsel appearing on behalf of the Petitioners has drawn the attention of this Court to Schedule-VII and submitted that to the post of Sub-Divisional Officer/Assistant Engineer/Assistant Architect, the method of recruitment is 60% direct recruitment and 40% by way of promotion. The promotion has to be made from amongst the Degree/Diploma holders in the concerned engineering discipline and who have completed minimum of 7 (seven) years of continuous service in the immediate lower grade in case of Diploma holders and 4 (four) years in the case of Degree holders on the basis of merit-cum-seniority. The learned counsel therefore submits that a perusal of Rule 3(9) of the Rules of 2012 defines the term “Diploma” to mean Diploma from a recognized Polytechnic/Institute. He therefore submits that admittedly, the Petitioners being Diploma holders in Mechanical Engineering as could be seen from the Memorandum dated 26.03.2018, the Petitioners could not have been debarred from promotion. He therefore submits that the said