IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) KOHIMA BENCH 1. Mr. N. Asangba, Presently serving as Surveyor Grade-II, PHE Central Store, under the establishment of Executive Engineer, Public Health Engineering Department,Dimapur, Nagaland. Ph-9774199232. 2. Mr. T. Imli Aier, presently serving as Surveyor Grade-II, Chuchuyimlang Sub-Division, under the establishment of Executive Engineer, Public Health Engineering Department, Mokokchung Division, Mokokchung, Nagaland. Ph-9436824883. 3. Mr. Supongmayang, presently serving as Surveyor Grade-II, under the establishment of Executive Engineer, Urban Division, Dimapur, Public Health Engineering Department, Dimapur, Nagaland. Ph-9436431321. 4. Mr. Sakutemsu Jamir, presently serving as Surveyor Grade-II, under the establishment of Executive Engineer, Urban Division, Dimapur, Public Health Engineering Department,. Dimapur, Nagaland. Ph-9856744339. 5. Imyangluba Ao, presently serving as Draftsman Grade=-II, under the establishment of Executive Engineer, Wokha Division, Public Health Engineering Department, Wokha, Nagaland. ph-9856038411....petitioners Page 1 of 7
-Versus- 1. The State of Nagaland, represented by the Chief Secretary to the Government of Nagaland, Kohima, Nagaland. 2. The Secretary, Government of Nagaland, Department of Public Health Engineering, Nagaland, Kohima. 3. The Chief Engineer, Public Health Engineering Department, Government of Nagaland, Kohima, Nagaland....Respondents. BEFORE HON BLE MR.JUSTICE S.SERTO For the Petitioners : Mr. Imti longjem, Ms. Esther, Ms. Vinitoli, Advs. For the Respondent No.1-3 : Ms. S. Mere, Govt. Adv. Date of hearing : 28.04.2017 Date of judgment : 29.05.2017 JUDGMENT & ORDER (CAV) This is a writ petition under Article 226 of the Constitution of India, praying for quashing and setting aside the impugned office order No. CE/PHE/EST-1/2014/507-31, dated 12.04.2016, issued by the Additional Chief Engineer, PHED, Government of Nagaland, wherein, the petitioners promotion to the post of Surveyor Grade-I and Draftsmen Grade-I, were cancelled and they were reverted to the post of Surveyor Grade-II and Draftsmen Grade-II. 2. The brief facts and circumstances which led the petitioners to approach this court are as follows; Page 2 of 7
The petitioners No. 1 to 4, were appointed as Surveyor in the department of PHE, Government of Nagaland, vide Order No. CE/PHE/EST/6, dated 31.10.1984, Order No. CE/PHE/EST/6, dated 17.01.1985, and Order No. CE/PHE/EST/6, dated 29.08.1985, respectively, and the petitioner No. 5, was appointed as Draftsmen Grade- II vide Order No. CE/PHE/EST/6, dated 14.05.1991. Thereafter, the petitioners No. 1 to 4, were promoted to the post of Surveyor Grade-II by a common order No. CE/PHE/EST/42, dated 19.08.1993. However, no promotion was given to the petitioners thereafter, though they were eligible for the same, therefore, they submitted a representation dated 20.01.2009, praying for promotion to the higher post. No positive response came forth from the respondents, as such another representation dated 03.07.2010, was submitted to the authority concerned. After a long time the Government considered their representations and the petitioner No. 1, 2 and 3, were promoted as Surveyor Grade-I vide a common order No. CE/PHE/EST/101/2013/740-747, dated 29.04.2014, and petitioner No. 4, was also promoted to the post of Grade-I vide order No. CE/PHE/EST/101/2013/754-757, dated 29.04.2014. On the same date petitioner No. 5, was also promoted to the post of Draftsmen Grade-I, vide order No. CE/PHE/EST/101/2013/712-722. 3. However, to their utter shock and dismay, by the impugned order No. CE/PHE/EST-1/2014/507-31, dated 12.04.2016, their promotions were cancelled and they were reverted back to their earlier post of Surveyor Grade-II and Draftsmen Grade-II. The impugned order is reproduce here in below:- GOVERNMENT OF NAGALAND OFFICE OF THE CHIEF ENGINEER NAGALAND : KOHIMA OFFICE ORDER Dated Kohima, the 12 th April/2016. No. CE/PHE/EST-1/2004 : In supersession of T.O Order of Even No./712-722,723-735, 736-739 & 740-747; dated 29/04/2014, and in accordance to Govt. letter No.PHE- 1/ESTT/22/2001 dated 30/03/2016. The promotion of the following staffs Grade-II to Grade-I stands cancelled; and are reverted back to the post of Grade-II with immediate effects as under:- Sl. No. Name Present designation Reverted back Remarks Page 3 of 7
1 Hempao Khiamniungan S.O Gr-I S.O Gr-II 2 Along Jamir S.O Gr-I S.O Gr-II 3 Imsumongla Imsong S.O Gr-I S.O Gr-II 4 Noklenmeren Longkumer S.O Gr-I S.O Gr-II 5 Kedonei-u Lhoungu S.O Gr-I S.O Gr-II 6 Hinoto Chisho S.O Gr-I S.O Gr-II 7 N. Sasi Computer Gr-I Computer Gr-II 8 I. Kanili Sema Draftsman Gr-I Draftsman Gr-II 9 Ngosayi Draftsman Gr-I Draftsman Gr-II 10 Toholi Sema Draftsman Gr-I Draftsman Gr-II 11 Imyangluba Draftsman Gr-I Draftsman Gr-II 12 Sakutemsu Surveyor Gr-I Surveyor Gr-II 13 Supongmayang Surveyor Gr-I Surveyor Gr-II 14 T. Imli Aier Surveyor Gr-I Surveyor Gr-II 15 N. Asangba Surveyor Gr-I Surveyor Gr-II However, they will not be liable to recover the amount that was drawn during the promoted period. Sd/- (J. WALTER LONGCHAR) Additional Chief Engineer O/o the Chief Engineer PHED Nagaland, Kohima. Aggrieved, they have come to this court under Article 226 of the Constitution of India, praying for quashing and setting aside the impugned order and for any other order or orders this court may deem fit and proper. 4. The main ground on which the petitioners have come to this court is that since they have served for about 2 years in the post to which they were promoted, they should have been given the opportunity of being heard but since that was not givene, principles of natural justice have been violated by the respondents while issuing the impugned order. It is also submitted that the impugned order is arbitrary, unfair and illegal and as such, interference of this court is called for. 5. The State respondent No. 1 to 3 filed a joint affidavit-in-opposition and submitted that the orders at Annexure-15, 16 and 17, were orders of up-gradation from Grade-II to Grade-I of Surveyor and Draftsmen and was not that of promotion. And that the up-gradation was done in order to give opportunity to those who rose from ranks to fill up 10% of the post of Junior Engineer, reserved for them. However, since there was procedural lapse, the P& AR Department, Government of Nagaland, Page 4 of 7
advised the department to cancel the orders, therefore the department as per the direction issued the impugned order. 6. Ms. Vinitoli, learned counsel for the petitioner, submitted that since the wording of the promotion orders clearly mentioned the word promotion, it has to be accepted as such and the respondents cannot change the same to suit their purpose, that too after a lapse of 2 years. In support of her submission the learned counsel cited para-8 of the judgment passed in Mohinder Singh Gill & Anr. Vs- The Chief Election Commissioner, New Delhi & Ors., by the Supreme Court of India, reported in (1978) 1 SCC 405. The contents of the same are reproduced here under;- 8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought, out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." 7. The learned counsel also submitted that since the petitioners have served for about 2 years and enjoyed the benefits of their promotion, before issuing such order the respondents should have given them an opportunity of being heard. Since, they have not done so, there was clear breach of the principles of natural justice. Therefore, the impugned order deserves to be quashed and set-aside on that ground alone. The learned counsel in support of his submission cited judgment of the Hon ble Supreme Court passed in the case of Gajanan L. Pernekar -vs- State of Goa And Anr., reported in (1999) 8 SCC 378, particularly, para-8 of the judgment. The same is reproduced here below;- Page 5 of 7
8. The manner in which the order dated 21-1-1999/22-1-1999 came to be made was, to say the least, not proper. The appellant was denuded of the benefits of the order dated 16.2.1994 unheard. There has been a breach of the principle of natural justice and a violation of fair play in action. The earlier order made in favour of the appellant as early as on 16.2.1994 was rescinded without giving any opportunity to the appellant to show cause against it. Absorption of the appellant as Headmaster of Government High School by the order dated 16.2.1994 had not been put in issue through any proceedings by any party at any point of time. That benefit could not have been taken away from the appellant without affording him any opportunity of hearing, even where the absorption as Head Master of High School had been put in issue. The principles of natural justice have been respected in their breach. The order dated 21 st /22 nd January, 1999 was made by the respondents influenced by the observations contained in para-2 of the order of the High Court (supra), which observations, we have already found, were not at all called for. In the facts and circumstances of the case, the order dated 21 st / 22 nd January, 1999 cannot be sustained and we accordingly set it aside. Consequently, we allow this appeal and set aside the observations of the High Court contained in para-2 of its judgment dated 14 th July, 1998 (supra) as well as the follow-up order made by the State on 21 st /22 nd January, 1999. As a result the order dated 16.2.1994 would stand revived. We grant liberty to the appellant to make a representation to the State Government for grant of consequential benefits flowing from the order of 16.2.1994, as was directed by the High Court itself. In case a representation is filed by the appellant before the concerned department within six weeks from the date of this order, the same shall be decided by the department within a period of twelve weeks from the date of the receipt of the copy of the representation. The representation shall be decided by the department uninfluenced by the order made on 21 st /22 nd January, 1999 as well as the observations made in para-2 of the High Court order (supra), which, we have set aside. 8. The learned Government Advocate Ms. S. Mere, who appeared on behalf of the state respondents, submitted that the promotion orders were issued by the department without obtaining the approval of P & AR department, as required under Page 6 of 7
Memorandum No. AR-3/GEN/58/2001, dated 03.02.2001, therefore, it was rightly cancelled by the impugned order. 9. Admittedly, the orders promoting the petitioners were issued by competent authority and they have been allowed to continue in their respective posts for 2 years since then. Therefore, it would amount to travesty or absurdity in law to say now that the orders were issued without following the prescribed procedures, and as such they have to be reverted to their post from where they were promoted. Moreover, to let the innocent petitioners suffer for no fault of theirs would be against equity and fair play. If government orders can be altered at anytime on such grounds it would lead to uncertainty and chaos in administration. Those who have been settled by an order issued by a competent authority should not be unsettled on whatever ground unless it is absolutely necessary in the interest of the service and public interest. Besides, to issue such an order without giving a chance of being heard to people who have been settled that too for a period of 2 years, without giving any reason and prior notice, would be in violation of the principles of natural justice. This is in consonance with the principles of natural justice followed in the case cited by the learned counsel of the petitioners as given in para-7 of this judgment. In fact the facts and circumstances of the two cases are quite similar. The plea of the State respondents that the orders promoting the petitioners were not promotion orders but orders upgrading their earlier posts to higher posts do not appear to be correct as the wordings of the order itself makes it crystal clear that it was promotion orders. 10. In view of what has been stated above, the impugned order is not sustainable in law, therefore, the same is quashed and set aside. Accordingly, the writ petition is allowed. No order as to cost. JUDGE kevi Page 7 of 7