M TOSHIMEREN AIER Vs. STATE OF NAGALAND

JUDGEMENT

(1.) This is an appeal against the judgment dated 9.9.94 of the learned single Judge in Civil Rule No. 82(K) 92 of the Kohima Bench of this Court.

(2.) The facts briefly are that the Appellant joined service as Lower Division Assistant in the office of the Deputy Commissioner, Mokokchung in the State of Nagaland on 16.11.65 and was confirmed as Lower Division Assistant on 3.11.73. Thereafter the appellant was allowed to act as Upper Division Assistant with effect from 23,2.74 and his service as Upper Division Assistant was regularised with effect from 5.11.74. On being selected for training course of Accountancy, he was sent by the Government of Nagaland for such training course in the year 1978. On 5.2.79, the appellant was confirmed as Upper Division Assistant. Thereafter, on 26.6.85, the appellant was allowed to takeover charge in the post of Accountant in the office of the Deputy Commissioner, Mokokchung where a post of Accountant had fallen vacant on retirement of the earlier incumbent. The appellant took over charge of Accountant on 30.6.85 and thereafter, he was promoted and appointed as Accountant in scale of pay of Rs. 670 -1160/- PM, but in the said order it was stipulated that the appointment of the appellant to the post of Accountant will not affect the existing interse seniority with regard to promotion to Head Assistant etc. On 20.3.89 a seniority list of Upper Division Assistant was published wherein the respondent No.3 was shown against serial No. 3 and the name of the appellant was not included in the said seniority list. On 22.2.91, the appellant was confirmed and declared as permanent in the post of Accountant with effect from 1.12.90. The appellant tbsn made a representation dated 29.7.91 to the Deputy Commissioner, Mokokchung to consider his case for promotion to the post of Superintendent. But the Deputy Commissioner, Mokokchung, in his letter dated 18.9.91 after stating the cases of both the appellant and the respondent No.3 for promotion to the post of Upper Division Assistant recommended the case of the respondent No.3 who was then the seniormost Upper Division Assistant for promotion to the post of Superintendent. In the circumstances, the appellant submitted a representation dated 29.9.91 before the Commissioner, Nagaland and the said representation of the appellant was forwarded by the Home Commissioner, Nagaland. The Deputy Secretary, Home Department, General Administration Branch, sought for a clarification from the Deputy Commissioner. Mokokchung and the Deputy Commissioner, Mokokchung by his letter dated 11.11.91 gave the said clarification. Thereafter a notification dated 30.3.92 was issued by the Home Commissioner, Nagaland, promoting the respondent No.3 to Class - n Gazetted post of Superintendent in the scale of pay of Rs.775 - 1675/- PM. Aggrieved, the appellant filed a writ petition under Article 226 of the Constitution which was numbered as Civil Rule No.82(K) 92 in the Kohima Bench of this Court and the learned single Judge after hearing the learned counsel for the parties, dismissed the Civil [Rule by the impugned judgment.

(3.) Mr. A .K. Bhattacharjee, learned counsel for the appellant, contended that the learned single Judge has held in the impugned judgment that the post of Head Assistant which was the promotional post for Upper Division Assistants was the same post as Superintendent Class-II post. He relied on the Nagaland Services (Revision of Pay) Rules, 1993 to show that the aforesaid two posts carried different scale of pay and were distinct from each other . He further argued that after the appellant was promoted and appointed as Accountant, he was drawing scale of pay of Rs. 670 - 1160/- PM which was higher than the scale of pay of Rs.220 - 330/- PM of an Upper Division Assistant and hence the appellant was superior in rank than the respondent No.3 who was only an Upper Division Assistant and not an Accountant. The appellant was thus entitled to be considered for promotion to the rank of Superintendent in preference to the respondent No.3. Mr. Bhattacharjee pointed out that the Deputy Commissioner, Mokokchung in his letter dated 18.9.91 to the Commissioner Nagaland has stated that the appellant once promoted to the post of Accountant ought to have been placed above the respondent No.3 as senior most Upper Division Assistant but it was stipulated in the promotion and appointment order of the appellant as Accountant that his promotion will not affect the inter-se seniority amongst the Upper Division Assistants with regard to promotion to Head Assistant, etc. He urged that what appears to have been weighed with the authorities for not considering the case of the appellant for promotion to the post of Superintendent is the condition in the promotion order dated 26.7.85 of the appellant as Accountant that the promotion was made on the condition that his appointment will not affect his interse seniority with regard to the promotion to the post of Head Assistant ,etc. But the authorities have failed to realise that in the order dated 22.2.91 by which the appellant was confirmed in the post of Accountant no such condition was stipulated. Mr. Bhattacharjee vehemently argued that in case it is held that the promotion to the post of Superintendent is to be made from amongst the Upper Division Assistants and from amongst the Accountants then as the appellant has ceased to be an Upper Division Assistant since 1985 after his appointment as Accountant would be deprived of an opportunity to be considered for promotion to the post of Superintendent. In this context Mr. Bhattacharjee referred us to the seniority list of Upper Division Assistants published on 20.3.89 and 17.3.92 after the appointment of the appellant as Accountant and stated that in the said seniority list of Upper Division Assistants, the appellant's name did not find place presumably because he was no longer an Upper Division Assistant. This has given rise, according to Mr. Bhattacharjee, to an anomalous situation in which the appellant has absolutely no further prospect of promotion after he was appointed as Accountant. In these peculiar facts of the case, the Court should hold that the fundamental rights of the petitioner for equality and equal opportunity in the matters of public employment has been violated and this Court should quash the impugned notification promoting the respondent No. 3 to the post of Superintendent or in the alternative direct the respondents to consider and promote the appellant to the post of Superintendent with retrospective effect and give consequential service benefits.