PUDUSUL LUHO Vs. STATE OF NAGALAND

JUDGEMENT

(1.) The challenge in this writ petition is to the Notifications dated 16.11.2006 granting benefit in the ratio of 3:1 which was adopted by the Government with the approval of the Cabined dated 3.10.2006; orders dated 28.11.2007 regularizing the contact services of respondents No. 4 and 5 and 20.5.2008 whereby the earlier Notification dated 16.11.2006 which was revoked has been reintroduced to the advantage of respondents No. 4 and 5. The facts relevant for the purpose of disposal of this petition are narrated as under: The petitioners, numbering 16 in all were appointed as Planning Assistant (PA in short under the Planning Department through regular process of selection conducted by the Nagaland Public Service Commission (hereinafter referred to as NPSC), except petitioners No. 4 and 5, but were initially appointed on ad-hoc basis and subsequently regularized in the year 1990. All the petitioners were promoted to the post of Assistant Planning Officer (in short APO) during 2006-7 and they are still working in the said post till date. A tentative seniority list of officers and staff was published by the Government, Department of Planning and Co-ordination vide Office Memorandum (O.M.) dated 21.4.2008 showing the seniority position with detailed service particulars in respect of the petitioners well as the respondents including others. Unlike the petitioners, the private respondent No. 4 was initially appointed as APO on contract basis for a period of one year by the order dated 23.9.1997. Similarly the respondent No. 5 was also appointed as APO on contract basis initially for a period of six months by an order dated 9.2.1999. The said appointments were extended from time to time allowing the petitioners to continue till the posts are filled up through recruitment by NPSC whichever is earlier. By the impugned Notification dated 28.11.2007 the services of private respondent Nos. 4 and 5 were regularized and granted benefit of seniority ever the petitioners by applying the ratio 3:1 i.e. one year service benefit of every three years of continuous service for counting of seniority to private respondents in terms of OM dated 16.11.2006. For counting of seniority of Government servant who are appointed on contract who are appointed on contract basis and subsequently regularized, the Government of Nagaland issued OM dated 19.11.1975 in which it was provided that the seniority shall be counted from the date of absorption on regular basis. While the said OM was in force, the State-respondents issued another Notification dated 16.11.2006 by which the Government granted service benefits in the ration of 3:1 to regularize the service of contract/ad-hoc employees. The said OM introducing 3:1 ratio, as pleaded in the writ petition, is contrary to the other Government standing OMs inasmuch as it has granted undue seniority benefits to the private respondents giving retrospective effects. The petitioners pleaded that the said OM is contrary to the provisions under the Draft Service Rules called Nagaland Planning Machinery Service Rules, 2007 framed under proviso to Article 309 of the Constitution of India, which provides for filling up of 75% by promotion and 25% by direct recruitment and there is no provision for filling up of posts of APO either by contract or by regularization of service of contract employees. It is also contended that the private respondents No. 4 and 5 were appointed without any selection process and dehors the rules through backdoor.

(2.) I have heard Mr. C.T. Jamir, learned senior counsel assisted by Mr. Wati Jamir, learned counsel for the petitioners, Mrs. Lucy, learned Government Advocate for State-respondents No. 1 to 3 and Mr. Apok Panger, learned counsel appearing for respondents No. 4 and 5.

(3.) Shri Apok Pongener, learned counsel appearing for the respondents No. 4 and 5 raises preliminary objections in regard to maintainability of the writ petition on account of non-joinder of necessary parties. On non-joinder of necessary parties, he submits that the Government Notification dated 28.11.2007 2007 is in relation to regularization of as many as nine persons but the petitioners have challenged the regularization of the present 2(two) respondents only without making other seven persons as parties. Since the prayer in the writ petition is for quashing and setting aside the said Notification, in the event of setting aside or quashing the same by this Court, the aforesaid seven persons who are not before this Court, would be affected with immense consequences which is not permissible under the law. The petition, according to learned counsel for the private respondents, is, therefore, liable to be dismissed on that ground alone. He also submits that the impugned Notification under challenge was issued as a public policy adopted by the State cabinet and such Circulars/policy cannot be a subject matter of judicial review as per various judicial pronouncements of the Apex Court as well as this Court and therefore, the present writ petition is liable to be dismissed at the threshold.