FINESON POJAR Vs. STATE OF NAGALAND

JUDGEMENT

(1.) THESE are analogous matters. For the sake of convenience, the short facts in WP(C) No. 76 (K)/2008 and WP (C) No. 112 (K)/2009 are narrated hereunder. There is a lone petitioner in the first petition while there are 37 petitioners in the second petition. All the petitioners are degree holders in Civil Engineering and they were directly recruited through the Nagaland Public Service Commission (NPSC for short) during 1995-2001 to the posts of SDO/Assistant Engineer (Class I Gazetted) in the Works and Housing Department, Government of Nagaland.

(2.) THE respondent No. 5, Mr. V. Vikheho Chishi and respondent No. 7, Mr. K. Tosuho Sema in the first petition are Diploma holders in Civil Engineering. THEy have neither filed any response nor engaged any counsel to represent them. One Mr. Kezholel Rhesto, has been impleaded as respondent No. 6 in the first petition and as Respondent No. 5 in the second petition (hereinafter referred to as private respondent only). This private respondent is a Degree Holder in Civil Engineering. He was initially appointed as a Lecturer, Class II Gazetted on 07.05.93 in Polytechnic under the Department of Higher and Technical Education, through NPSC by Notification dated 17.05.93, along with one Mr. Toba Angami. THEy were brought on deputation on 02.06.1994 as SDO/Asstt. Engineer, Department of Works and Housing by a Notification dated 02.06.1994. A Cabinet Memorandum dated 18.06.2001 was prepared with prior clearance of the Personnel & Administrative Reforms Department (P&ARD in short) and the NPSC for their absorption in accordance with the OM No. AR-2/10/71 dated 12.08.75 and OM No. AR-07/08/86 dated 17.09.86. THE State Cabinet took decision on 20.06.2001 to absorb the private respondent along with said Shri Toba Angami with effect from 20.06.2002 and an OM No. CAB-1/2001 dated 21.06.2001 was issued by the Cabinet Secretariat followed by a Government notification dated 03.07.2001 to that effect issued by the Commissioner & Secretary Works and Housing Department. Subse-quently, Notification No. WH/ESTT/54/95 dated 15.11.02 was issued by the Secretary to the Government of Nagaland, Works & Housing Department, superseding the earlier Notification dated 03.07.2001 providing absorption of private Respondent in the Nagaland Engineering Service with effect from 13.06.1994 and counting of his seniority as Asstt. Engineer in the NPWD from 13.06.94 i.e. the date of deputation. THE interse seniority of Assistant Engineers was re fixed and the private Respondent was given officiating promotion to the post of Executive Engineer vide Notification No. WA/ESTT/22/98 dated 10.12.07. Similarly the Resp-ondents No. 5 and 7 in the first petition were also given officiating promotion to the post of Executive Engineer vide separate orders/ notification dated 19.09.2007. THE aforesaid notification dated 15.11.02 absorbing the private Respondent with effect from 13.06.94 (date of deputation) and 10.12.07 giving him officiating promotion to Executive Engineers are under challenge in these petitions. WP(C) No. 113 (K) 2010 (hereinafter referred to as the third petition) has been filed by the private respondent challenging the constitutional validity of OMs dated 12.08.75 and 17.09.86. In this writ petition prayer has been made for issuing direction to Respondent authorities to give full effect to the notification dated 15.11.2002.

(3.) IN these writ petitions following legal issues have been posed for determination:-