IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) KOHIMA BENCH W.P (C) No. 232 (K) of 2015 1. Shri Ailong Phom, Forest Ranger, Office of the Range Forest Officer, Sitab Range, Tuensang Division. 2. Shri Punseni Khing Forest Ranger, Office of the Range Forest Officer, Merapani Range, Wokha Division. 3. Shri Imkongsunep Longchar Forest Ranger, Office of the Range Forest Officer, Longtho Range, Mokokchung Division. -Versus-.Petitioners 1. The State of Nagaland, Through the Chief Secretary to the Government of Nagaland, Kohima, Nagaland. 2. The Principal Secretary to the Govt. of Nagaland, to the Government of Nagaland, Department of Forest, Ecology, Environment & Wildlife, Nagaland, Kohima. 3. The Principal Chief Conservator of Forest & Head Forests Force, Nagaland, Kohima. 4. Shri Keviyiebei, Forest Ranger, Office of the Range Forest Officer. Dimapur Range, Dimapur Nagaland. 5. Shri Bendangtemsu, Forest Ranger, State Environment & Forestry Training Institute Dimapur Nagaland. 6. Shri Bokato Forest Ranger, B.O Medziphema Beat Dimapur, Nagaland. W.P.(C) No.232(K)/2015 Page 1 of 12
.Respondents -BEFORE- HON BLE MR. JUSTICE S. SERTO For the Petitioners : Mr. C.T. Jamir, Sr. Adv. Mr. Wati Jamir, Mr. N. Logkumer, Mr. Imkong Jamir, Mr. Pokyim Yaden, Mr. Yalemsen, Advs. For the respondent : Ms. V. Suokhrie, Nos. 1 to 3 Addl. Sr. Govt. Adv. For respondent Nos. 4 to 6. : Mr. Tomgpok Pongener, Mr. Thiba Phom, Mr. S.Reopi Sangtam, Ms. Alika Achumi, Ms. Purnima Paul, Advs. Date of hearing : 02-05-2017 Date of judgment : 26-05-2017 JUDGMENT & ORDER (CAV) This is a writ petition under Article 226 of the Constitution of India challenging 3 orders issued by the Government respondents viz; (i) Notification dated 20/12/2011, particularly, paragraph-6 (III) issued by the Department of Forest, Ecology, Environment & Wildlife, Government of Nagaland, wherein, it was stated that private respondent Nos. 4, 5 and 6 will be above the direct recruit Rangers appointed in the year 2011, in seniority. (ii) Memorandum dated 21/3/2014, issued by the same Department, wherein, the private respondents were placed above the petitioners in the tentative seniority list of the Forest Rangers of the State, and (iii) the letter dated 4/7/2014, of the Deputy Secretary to the Government of Nagaland addressed to the Principal Chief Conservator of Forest, Nagaland, wherein, it was stated that placement of the private respondent Nos. 4, 5 and 6 above the direct recruits of 2011, was done as per the general rules on inter-se seniority of promotees and direct W.P.(C) No.232(K)/2015 Page 2 of 12
recruits in a calendar year and as the vacancies to which the private respondents were promoted already existed prior to the requisition of the post for direct recruitment. 2. Heard Mr. Wati Jamir, learned counsel for the petitioners. Also heard Ms. V. Suokhrie, learned Addl. Sr. Government Advocate on behalf the State respondents and Mr. Tongpok Pongener, learned counsel on behalf of the private respondent Nos. 4, 5 and 6. 3. The facts of the case which has emerged from the submissions of the learned counsels as well as from the pleadings of the parties are as follows:- In the year 2011, by the impugned order dated 25/10/2011, the petitioners were appointed to the post of Forest Rangers (Class-II Gazetted) in the Department of Forest, Ecology, Environment & Wildlife, Government of Nagaland on the recommendation of Nagaland Public Service Commission (NPSC). In the same year, vide Notification No. FOR/ESTT-1/2009, dated 20/12/2011, the Department promoted the private respondents to the post of Forest Rangers and at the same time, placed them above the direct recruits of the same year in the seniority list. On 21/3/2014, the same Department issued a memorandum being No. FOR/ESTT-3/97, in which, the tentative seniority list of Forest Rangers as on 1/1/2014 was published. In that seniority list, the private respondent Nos. 4, 5 and 6 were placed at Sl. No. 25, 26, 27 and the petitioners were placed at Sl. No. 29, 30 and 31, respectively. Aggrieved by the above stated notification and memorandum, the petitioners submitted a representation each, dated 21/3/2014, to the Principal Chief Conservator of Forest (PCCF), Nagaland, stating that they should be placed above the private respondents in the seniority list of Forest Rangers. However, their representations did not bear any fruit. Thereafter, purportedly, on the clarification sought by the PCCF, the Deputy Secretary to the Government of Nagaland, Department of Forest, Ecology, Environment & Wildlife, Nagaland, vide letter dated 4/7/2014, clarified as follows:- (1) Regarding Seniority List SL.No.25,26 and 27 the Government, through its Notification no. FOR/ESTT-1/2009 dated 20 th October, 2011(enclosed), has placed them above the direct recruits for the year W.P.(C) No.232(K)/2015 Page 3 of 12
2011 as per the general rule of inter-se seniority of promotes and direct recruits in a calendar year. Moreover, it may be mentioned that promotion vacancies existed before direct recruitments was requisitioned but promotion was delayed for want of ACRs/APARs. (2) Regarding Seniority list SL.No.No.28, NPSC, through its letter No. NPSC/C-34/2008(enclosed), clarified that the candidate in the waiting list viz Shri Moamongba replaced the resigned merit list candidate for the year 2011 Nagaland Public Service Commission Examination. The rest 3 candidates viz. Ailong Phom, Punseni Khing and Imkongsunep Lonchar were selected through reservation i.e. Backward Tribe and Forestry Graduates quotas. 4. The petitioners, being aggrieved has come to this Court praying for quashing and setting aside the said impugned notification, memorandum and the letter and also prayed for a direction to the Government respondents No. 1 to 3 to rectify the seniority list of Forest Rangers published in the memorandum which was issued in pursuance of the notification dated 20/12/2011, particularly, paragraph-6 (III). 5. Mr. Wati Jamir, learned counsel for the petitioners submitted, at length in support of the case of the petitioners, the gist of the same are as follows: (i) That the petitioners were appointed before the private respondents were promoted, therefore, there is no reason why the respondents should have been made senior to them. (ii) That seniority should be counted from the date on which an employee is born in the cadre. Therefore, the act of the State respondents in counting the seniority of the private respondent Nos. 4, 5 and 6, from the date of vacancy of the post to which they were promoted, is against the principles of service jurisprudence. (iii) That in the year 1977, the Government of Nagaland notified the Nagaland Forest Service (Class-II) Rules 1977 which came into effect from the date it was published in the official Gazette. In clause 1 and 2 of Rule 3 of the said Rules, 1977, it is stated that the service shall consist of Assistant Conservator of Forest and any other equivalent post existing or created in future in the Nagaland Forest Department and status of the service will be Class-II Gazetted to the Government of Nagaland. And in Rule 20 (b) of the W.P.(C) No.232(K)/2015 Page 4 of 12
same Rules, it is stated that members of the service appointed by promotion shall rank in the general list immediately below the last recruited candidates selected for training in the forest college in that particular year and inter-se seniority according to the order in which they have been promoted to the service. (iv) That in the Notification dated 9/10/1987, No. FOR-58/78, it is stated that the Governor of Nagaland is pleased to upgrade the status of Forest Rangers from Class-III Non Gazetted in the scale pay of Rs. 680-25-790-30- 880-EB-35-1055-EB-40-1095-45-1590/- Pm to Gazetted Class-II (Junior) in the scale of pay of Rs. 850-26-980-40-1300-EB-40-1660-45-1840/- w.e.f.12/9/1987. By this notification the post/service of Rangers has been upgraded to Class-II Gazetted, therefore, as per the service rules of 1977, Rule 3 clause 1 and 2 had become a part of the Nagaland Forest Service as such, the rule of 1977 has become applicable to the service of Rangers, and thus, Rule 20 Clause (b) of the same rule which provides that a member of the service appointed by promotion shall rank below the direct recruit of the same year shall also apply. Therefore, the petitioners should have been placed higher in the seniority list than the private respondents No.4, 5 and 6. The learned counsel cited the judgment of the Hon ble Supreme Court in the case of Uttaranchal Forest Rangers Assn (Direct Recruit) and others -vs- State of U.P and others reported in (2006)10 SCC 346, more particularly, paragraph-38, 39 and 40. The same are reproduced here below:- 38.This Court has consistently held that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime. In, State of Bihar & Ors v. Akhouri Sachidananda Nath & Ors, 1991 Suppl. (1) SCC 334, this court observed that, "12. In the instant case, the promotee respondents 6 to 23 were not born in the cadre of Assistant Engineer in the Bihar Engineering Service, Class II at the time when the respondents 1 to 5 were directly recruited to the post of Assistant Engineer and as such they cannot be given seniority in the service of Assistant Engineers over the respondents 1 to 5. It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, seniority inter-se amongst the Assistant Engineers in Bihar Engineering Service, Class W.P.(C) No.232(K)/2015 Page 5 of 12
II will be considered from the date of the length of service rendered as Assistant Engineers. This being the position in law the respondents 6 to 23 cannot be made senior to the respondents 1 to 5 by the impugned Government orders as they entered into the said Service by promotion after the respondents 1 to 5 were directly recruited in the quota of direct recruits. The judgment of the High Court quashing the impugned Government orders made in annexures, 8, 9 and 10 is unexceptionable. 39. In Vinodanand Yadav & Ors v. State of Bihar on an issue regarding the inter-se seniority among the direct recruits and promotees the Court applying the ratio of State of Bihar v. Akhouri Sachindranath held that the appellants who were direct recruits shall be considered senior over the promotees not borne on the cadre when the direct recruits were appointed in service. Hence the gradation list drawn under which promotees where given seniority over direct recruits could not be sustained and was thereby set aside". 40. The High Court, in the impugned judgment dated 26.11.2001 has proceeded on the basis that vacancies arose in 1987-88 and, therefore, should be given retrospective effect. The said submission, in our opinion, has no force and import. In our view, the date on which vacancies arose cannot without more be made a basis of giving retrospective promotion and seniority. In Jagdish Ch. Patnaik & Ors v. State of Orissa & Ors, 1998(4) SCC 456, this Court observed: 32. The next question for consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited? Mr. Banerjee's contention on this score is that since the appellant was recruited to the cadre of Assistant Engineer in respect of the vacancies that arose in the year 1978 though in fact the letter of appointment was issued only in March 1980, he should be treated to be a recruit of the year 1978 and as such would be senior to the promotees of the years 1979 and 1980 and would be junior to the promotees of the year 1978. According to the learned Counsel since the process of recruitment takes a fairly long period as the Public Service Commission invites application, interviews and finally selects them whereupon the Government takes the final decision, it would be illogical to ignore the year in which the vacancy arose and against which the recruitment has been made. There is no dispute that there will be some time lag between the year when the vacancy accrues and the year when the final recruitment is made for complying with the procedure prescribed but that would not give a handle to the Court to include something which is not there in the Rules of Seniority under Rule 26. Under Rule 26 the year in which vacancy arose and against which vacancy the recruitment has been made is not at all to be looked into for determination of the inter se seniority between direct recruits and the promotees. It merely states that during the calendar W.P.(C) No.232(K)/2015 Page 6 of 12
year direct recruits to the cadre of Assistant Engineer would be junior to the promotee recruits to the said cadre. It is not possible for the Court to import something which is not there in Rule 26 and thereby legislate a new Rule of Seniority. We are, therefore, not in a position to agree with the submission of Mr. Banerjee, the learned senior counsel appearing for the appellants on this score. 6. Ms. V. Suokhrie, learned Addl. Sr. Government Advocate representing the State respondents reiterated the statements made at paragraph 6-7 of the affidavit-in-opposition filed on behalf of the state respondents, which are reproduced here below:- 6. That the statements made in paragraph 6 and 7 of the writ petition is misconceived and hence, denied. Rule 3 of The Nagaland Forest Service (Class-II) Rule, 1977 hereinafter referred to as the Service Rules, clearly stipulates that the service shall consist of the Assistant Conservator of Forest and any other equivalent post existing or created in future in the Nagaland Forest Department. The post of Forest Ranger being lower in grade than the post of Assistant Conservator of Forests, cannot be construed as being equivalent to the post of Assistant Conservator of Forests. Therefore, the Service Rules has no application in respect of petitioners. The deponent further states that as regard determination of inter se seniority between the promotes and direct recruits of the same batch, the promotes are placed above the direct recruits as per the practice in the Department. 7. That the statement made in paragraph 8,9,10 and 12 of the writ petition being matter of records, are admitted by the answering deponent to the extent borne by the records. It is pertinent to mention herein that by Notification No. FOR/ESTT-1/2009 dated 20.12.2011, the respondents No. 4, 5 and 6 whose names appears at Sl. No. 1 to 3 were promoted to the post of Forest Ranger. In para III of the said Notification, it is clearly provided that the seniority of the officers at Sl. No. 1 to 3 will be above the direct recruit Ranger appointed in the year 2011. The deponent further respectfully states that in absence of Service Rules, the seniority of the petitioners vis-à-vis the private respondents, has been fixed as per the said Notification dated 20.12.2011. The letter dated 04.07.2014 (Annexure-F, to the writ petition), issued under the signature of the Deputy Secretary to the Govt. Nagaland and addressed to the principal Chief Conservator of Forests, Nagaland is in connection with the representation submitted W.P.(C) No.232(K)/2015 Page 7 of 12
by the petitioners for rectification of the Seniority List of Forest Ranger. In the said letter it has been explained that the private respondents were placed above the direct recruit for the year 2011 as per the general rule of inter-se seniority of promotes and direct recruits in a calendar year. Moreover, the promotion vacancies existed before requisitioned was made for direct recruitment but promotion of the private respondents was delayed for want of ACRs/APARs. 7. The learned Government Advocate in support of her submission cited the judgments of Hon ble Supreme Court passed in the case of Union of India - vs- H.R. Patankar and others reported in 1984 (Supp) SCC 359, particularly paragraph-4 and in the case of Bimlesh Tanwar -vs- State of Haryana and others reported in (2003) 5SCC 604, particularly paragraph-47. The relevant portions are given here below:- (I) Union of India -vs- H.R. Patankar and others reported in 1984 (Supp) SCC 359. 4. It is now well settled law that even if there are no statutory rules in force for determining seniority in a service or even if there are statutory rules but they are silent on any particular subject, it is competent to the Government by an executive order to make appropriate Seniority Rules or to fill in the lacuna in the statutory rules by making an appropriate seniority rule in regard to the subject on which the statutory rules are silent (II) Bimlesh Tanwar -vs- State of Haryana and others reported in (2003) 5SCC 604. 47. It is also well settled that in the absence of rules governing seniority an executive order may be issued to fill up the gap. Only in the absence of a rule or executive instructions, the Court may have to evolve a fair and just principle which could be applied in the facts and circumstances of the case. 8. Mr. Tongpok Pongener, learned counsel who appears on behalf of the private respondent Nos. 4, 5 and 6 while supporting the submission of the learned Government Advocate submitted that there is no rule of Forest Rangers, therefore, the Government by following the general principles of law applicable in the case of inter-se seniority had issued the impugned order wherein the private respondents have been placed in the seniority list above W.P.(C) No.232(K)/2015 Page 8 of 12
the petitioners. Therefore, there is nothing illegal or irregular in the order issued by the Government respondents. The learned counsel also submitted that in the absence of any act or rule framed under Article 309 of the Constitution of India, the Government by executing orders or instructions can regulate the service of its employees. Therefore, the Government had issued the instruction regarding the placement of private respondents in the seniority list of Forest Rangers as such there is no infirmity or illegality in the order. The learned counsel in support of his submission cited the decision of Division Bench of this High Court passed in W.A. No.6/1994. The relevant portion of the judgment cited by the learned counsel is found at paragraph-6. The same is reproduced here below:- 6..Admittedly no statutory rule or rules under Article 309 of the Constitution have been framed providing for appointment or promotion to the post of Head Assistant or Superintendent. In the absence of such statutory rule or rules framed under Article 309 of the Constitution, the executive is fully empowered to follow a procedure for appointment or promotion to the post of Head Assistant or Superintendent so long as the procedure does not violate the rights of equality in matters of public employment under Article 14 and 16 of the Constitution. In our considered opinion, the procedure followed in the present case for promoting the senior most Upper Division Assistant with merit to the post of Superintendent cannot be held to be violative of the rights of the appellant under Article 14 and 16 of the Constitution... 9. The learned counsel further submitted that though the private respondents were promoted by notification dated 20/12/2011 to the post of Ranger, the vacancies to which they were promoted were already in existence in the year 2008 and process for their promotion was initiated in the same year. The learned counsel in support of his submission drew my attention to the letter of the PCCF (Hqrs.) Nagaland, dated 21/12/2008, addressed to the Director State Environment & Forestry Training Institute, Nagaland and the Divisional Forest Officer, Dimapur, Dimapur Division asking them to submit ACR in respect of Shri Bendangtemsu, Dy. Ranger (respondent No.5) and Shri Bokato, Dy. Ranger (respondent No.6), and the letter of PCCF addressed to the Commissioner & Secretary to the Government of Nagaland, Department of W.P.(C) No.232(K)/2015 Page 9 of 12
Forest, Ecology, Environment & Wildlife by which the PCCF submitted proposal for promotion of Dy. Ranger to the post of Forest Ranger. In that letter, the name of the private respondent Nos. 4, 5 and 6 were mentioned at Sl. No. 1, 2 and 3 respectively. The learned counsel also submitted that the seniority list in which the private respondents were placed above the petitioners was issued on the instruction issued by the Commissioner and Secretary, Department of Forest, Ecology, Environment & Wildlife, in accordance to the general principles of law applicable in determining the inter-se-seniority of persons appointed through direct recruitment and promotion, therefore, there is no illegality in it. 10. The learned counsel also submitted that the facts and circumstances of this case is different from the cases cited by the petitioners learned counsel, therefore, the judgment of the Hon ble Supreme Court in those cases are not applicable. The learned counsel further submitted that the delay in promotion of the private respondents was not due to any fault of theirs but it was due to the lapse committed by the Government respondents. Therefore, they should not be allowed to suffer. He also submitted that after realizing the lapses committed by themselves and the injustice caused to the private respondents in consequence there to, the respondents have taken corrective measures and issued the notification, memorandum and the letter, therefore, there is nothing illegal in them and, in doing so, the respondents have acted within the ambit of their power and authorities permissible in law, therefore, there is no illegality committed. The learned counsel cited two cases in support of his submissions; (I) in the case of P.N. Premchandran -vs- State of Kerala and others reported in (2004) 1 SCC 245, paragraph-7. The same is reproduced here below:- 7. It is not in dispute that the posts were to be filled up by promotion. We fail to understand how the appellant, keeping in view the facts and circumstances of this case, could question the retrospective promotion granted to the private respondents herein. It is not disputed that in view of the administrative lapse, the Departmental Promotion Committee did not hold a sitting from 1964 to 1980. The respondents cannot suffer owing to such administrative lapse on the W.P.(C) No.232(K)/2015 Page 10 of 12
part of the State of Kerala for no fault on their part. It is also not disputed, that in ordinary course they were entitled to be promoted to the post of Assistant Directors, in the event, a Departmental Promotion Committee had been constituted in due time. In that view of the matter, it must be held that the State of Kerala took a conscious decision to the effect that those who have been acting in a higher post for a long time, although on a temporary basis, but were qualified at the time when they were so promoted and found to be eligible by the Departmental Promotion Committee at a later date, should be promoted with retrospective effect. (II) Vireshwar Singh and others vs- Municipal Corporation of Delhi and others reported in (2014) 10 SCC 360. This judgment is not applicable in the facts and circumstances of this case as the cited case deals with regularization of some employees from the date of their initial appointment, whereas, in this case we are dealing with promotion and inter-se-seniority of the petitioners and the private respondents, therefore, there is no need to reproduce and refer to the same. 11. Admittedly, the petitioners were appointed to the post of Forest Rangers, before the private respondents were promoted to the same cadre. It is also admitted by the respondents that there is no service rule governing the service conditions of the Forest Rangers in Nagaland. In the absence of specific rule or rules, I am unable to agree with such a view that promotees should be placed higher in the seniority list as per general rules of inter-se-seniority of promotees and direct recruits in a calendar year. Because, it would be unreasonable, illogical and unfair to place someone who was not even borne in the cadre above the person who was already serving in the cadre at a relevant time. On this I am of the opinion that the judgment of the Hon ble Supreme Court cited by the petitioners, i.e. Uttaranchal Forest Rangers Assn (Direct Recruit) and others vs- State of U.P and others reported in (2006) 10 SCC 346 is squarely applicable. The relevant portion is reproduced here below: This Court has consistently held that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime. W.P.(C) No.232(K)/2015 Page 11 of 12
12. Secondly, the submission of the learned counsels of the respondents that the process for promotion of the private respondents started earlier than that of the direct recruits, as such, the promotees were placed higher in the seniority list than the direct recruits, is something unknown in the service jurisprudence. Moreover, as stated in the above para, there is no Service Rule of Forest Rangers, which provides as such. Dealing with seniority of employees one should be fair and reasonable otherwise, it is sure to create heart burn and anomalous situation which would lead to indiscipline in the service and chaos in the administration. 13. On the third contention of the Respondents i.e. petitioners were selected and appointed to reserved quotas, as such, they were placed lower in seniority list, this court is of the opinion that the same is unreasonable and totally against the reservation policy. Reservation to posts and services are made to ensure adequate representation in such posts and services from backward communities. It can never be used to determine seniority especially, in situation like the present case. 14. In view of the reasons given above, the writ petition is allowed and the impugned Notification dated 20/12/2011, Memorandum dated 21/3/2014, and the letter dated 4/7/2014, at Annexure-C, D and F, of the writ petition, respectively, are quashed and set aside. Accordingly, the state respondents are directed to prepare and issue a fresh seniority list keeping in view the dicta of various judgments of the Hon ble Supreme Court that a person s seniority has to be counted only from the day he is borne in the cadre. The writ petition is disposed. No order as to cost. JUDGE kevi W.P.(C) No.232(K)/2015 Page 12 of 12