TOULVI KIBAMI Vs. STATE OF NAGALAND

JUDGEMENT

(1.) This is a proceeding for review of the judgment and order delivered by us on 4.9.95 in Writ Appeal No. 142 of 1993.

(2.) The facts briefly are that the review applicant has been working as Superintending Engineer in the department of Public Health Engineering, Government of Nagaland and holds a degree in Civil Engineering. The respondent No.3 was; also working as a Superintending Engineer in the said department and holds a diploma in Engineering and was promoted to the post of Additional Chief Engineer Subject to regularisation by the Departmental Promotion Committee by a notification dated 26.3.91 issued by the Secretary to the Government of Nagaland, Department of Public Health Engineering. The review applicant as writ petitioner challenged the said notification dated 26.3.91 in Civil Rule No. 119 (K)/92 filed before the Kohima Bench of this Court on the ground that the respondent No.3 was only a diploma holder and did not hold a degree in Engineering which was the qualification prescribed under the Nagaland Engineering Service Rules, 1984, (for short, 'the 1984 Rules') for appointment to the post of Additional Chief Engineering. The learned single Judge of the Kohima Bench after hearing the parties held in his judgment and order dated 16.7.93 that the 1984 Rules were abundantly clear that the post of Addiitional Chief Engineer was to be filled up 100% by degree holders and that the 1984 Rules which were framed under the proviso to Article 309 of the Constitution were statutory Rules and could not be by passed by executive orders. By the said judgment and order, the learned single Judge also quashed the order of promotion of respondent No.3 the post of Additional Chief Engineer contained in the notification dated 26.3.91 and allowed the writ petition.

(3.) Aggrieved by the said judgment and order of the learned single Judge of the Kohima Bench in Civil Rule No. 119(K)/92, the State-respondent Ncs. 1 and 2 filed writ Appeal No. 142/93. The said writ appeal was taken up for hearing by this Bench on 4.9.95 when the counsel for the State-respondent No. 1 and 2 and the counsel for the respondent No. 3 were present but the counsel for the review applicant who was the respondent No.1 in the said writ appeal was not present. At the said hearing of the writ appeal, Mr. D.K. Mishra, learned counsel for the State- respondent Nos. 1 and 2 and the appellants in the said/writ appeal, contended, inter alia, that the 1984 Rules as originally framed and in particular column-4 against serial-2 in Schedule-VI of the said Rules expressly provided that even Those with exceptional meritorious service from amongst the Superintending Engineers who were not degree holders could be promoted to the post of Additional Chief Engineer, but some how in the Gazette notification dated 22.9.84 in which the 1984 Rules were notified, the words " cases of exceptionally meritorious service" came to be deleted and, as a result, a confusion arose with regard to the exact words used in Schedule-VI of the 1984 Rules and the learned single Judge interpreted the 1984 Rules as notified in the Gazette and held that under Schedule-VI to the 1984 Rules only degree holders or equivalent were qualified to be promoted to the post of Additional Chief Engineer. Mr. G. N. Sahewalla, learned counsel appearing for the respondent No. 3 who was respondent No. 2 in the said writ appeal, supported the aforesaid contention of Mr. D.K. Mishra. Considering the fact that the promotion of respondent No. 2 (respondent No. 3 in the writ Appeal) was subject to regularisation by the Departmental promotion Committee, we disposed of the writ Appeal by our judgement and order dated 4.9.95 with a direction that the Departmental promotion Committee as well as the Government would examine as to what were the act words used in Schedule VI as originally framed and decide the question of eligibility of respondent No. 3 ( respondent No.2 in the writ appeal) as well as the review applicant ( respondent No.1 in the writ Appeal) and other Superintending Engineers for promotion to the post of Additional Chief Engineer besides their suitability for promotion to the said-post and that the aforesaid consideration would be completed within six months from the date of judgment.