VICHOSUNUO KINTSO Vs. STATE OF NAGALAND

JUDGEMENT

(1.) Whether Nagaland Services (Revision of gay) Rules, 1999 (hereinafter referred to as 'the ROP Rules 1999') did not stand amended vide Office Memorandum dated 09.10.2002 issued under proviso to Article 309 of the Constitution of India because of its non-publication in official gazette and whether consequently the writ appellants are entitled to pay scale under the unamended ROP Rules, 1999 w.e.f. their initial date of joining in the service as lecturers of Govt. Polytechnics are the two questions in issue in the present writ appeal.

(2.) Brief facts involved in this writ appeal are required to be stated at the threshold for better understanding of the case. The two writ petitioners are Government servants working as lecturers in two Polytechnics in the State of Nagaland. Pursuant to recommendation made by the Nagaland Public Service Commission (for short, the NPSC), they were appointed by a common appointment order dated 13.9.2004 as lecturers of Government Polytechnics in the pay scale of Rs. 7450-225-11,500/ - plus all other allowances as are admissible to the employees of the State Government under the rules in force from time to time with effect from the date of their joining at their respective places of posting. The petitioners immediately joined to their respective places of posting and started drawing salary. At the time of joining, the petitioners were not aware that under the ROP Rules, 1999, lecturers of Govt. Polytechnics are entitled to pay scale of Rs. 8000-13500 although their appointment letter disclosed that they were appointed in the pay scale of Rs. 7450-225-11,500/-. Subsequently, having come to know about the same, they submitted representation before the Additional Director, Higher and 'Technical Education, Kohima on 12.02.2010 claiming that they should be paid at the pay scale of Rs. 8000-275-13500 with effect from their initial date of joining as per the provision of ROP Rules, 1999. The Additional Director forwarded the representation to the Commissioner and Secretary to the Government of Nagaland, Higher and Technical Education, Kohima to consider the case of the petitioners. Another representation on 20.07.2010 to the same effect was submitted by the appellants before the Commissioner and Secretary, Higher and Technical Education, Kohima with the same prayer wherein they mentioned that similarly situated lecturers appointed either in 2001 or in 2006 were getting scale as per ROP Rules, 1999 whereas their salary was being paid on allover and unrevised pay scale. Upon such representation being filed, Government asked the office of the Additional Director and respective Heads of the Departments as to why different scales are being applied to similarly situated lecturers. In course inquire', it came to light that as per the ROP Rules, 1984. the pay scale of Polytechnic Lecturers were Rs. 2100-4000 and subsequently by the ROP Rules, 1999, it was raised to Rs. 8000- 13500/-. The Government, however, subsequently issued an office memorandum on 9.10.2002 and thereby made an amendment to ROP Rules, 1999 under proviso to Article 309 of the Constitution of India and thereby downgraded the scale to Rs.7400-11500/-. The Additional Director, therefore, requested the Government either to consider the case of the appellants for granting financial benefits or to come out with a clear direction that they are not entitled to the same as they had appeared before the NPSC knowing the pay scale to be Rs. 7450-11500/-. Again with effect from 1.4.2007, the Govt, restored the pay scale of polytechnic lecturers at Rs.8000-13500/- but still the petitioners were being paid at the scale of Rs. 7400-11500/-. So, the Government, by letter dated 27.09.2011 asked the Director, Department of Technical Education to explain as to why these two officers were not brought over the re-revised pay scale in 2007 and were still being paid in the pay scale of Rs. 7450-13500/-. The Director by his reply dated 25.10.2011 stated in no uncertain words that the appellants are entitled to Rs. 8000-275-13500 from the date of their initial appointment in Class-I Gazetted Scale. However, even thereafter by reply communication dated 19.03.2012, the Under Secretary to the Government of Nagaland, Higher and Technical Education Department in formed the Director that the appellants are not entitled to pay scale of Rs. 8000-275-13500/-.

(3.) Situated thus, the petitioners preferred W.P (C) No. 139 (K) of 2013 before this Court asking for an appropriate direction for giving them pay scale of Rs. 8000-275-13500/- from their initial date of joining with consequential benefits by setting aside the office memorandum dated 09.10.2002 w hereby amendment of ROP Rules, 1999 had been ordered. The impugned Notification dated 09.10.2002 has been annexed as Annexure-M to the writ petition which goes to show at Serial No. 3 that the salary of lecturer in Government Polytechnic was revised to Rs. 7450-255-11,500 from the existing pay scale of Rs. 1800-60-2400-3100-75-3475/-. However, at the 2nd page of the Notification, it is also mentioned that lecturer of Polytechnic who have been paid at the existing pay scale of Rs. 2100-4000/ - would be revised to Rs. 7450-11500/ - by amending the existing Entry No. II of Annexure-II of ROP Rules, 1999. According to the writ petitioners this Notification was never published in official gazette or elsewhere and so, it never came into force.