KOHIMA BENCH - Gauhati High Courtghconline.gov.in/Judgment/WPC252011(K).pdf · 2017. 7. 4. · But...

IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA,

MIZORAM AND ARUNACHAL PRADESH)

KOHIMA BENCH WP(C) No. 25(K) 2011

1. Smti.Chubayangla Longkumer

Selection Grade Lecturer (SGL),

Fazl Ali College,

Mokokchung, Nagaland.

2. Shri. Imliwati Imchen,


Fazl Ali College,

Mokokchung, Nagaland. :::: Petitioners

-Versus -

1. The State of Nagaland

represented by the Chief Secretary to the Govt.

of Nagaland, Kohima.

2. Commissioner & Secretary to the Govt. of Nagaland,

Department of Higher & Technical Education,

Nagaland, Kohima.

3. The Director,

Higher Education Department,

Kohima, Nagaland.

4. Dr. Watinungsang Aier,

Reader,

Sao Chang College,

Tuensang, Nagaland.

WP(C) No.25(K)2011

With WP(C) No.86(K)2010

2

5. Smti.Chubasangla Chang


Sao Chang College,

Tuensang, Nagaland. :::: Respondents

WP(C) No. 86(K)2010

1. Smti.Chubayangla Longkumer


Fazl Ali College,

Mokokchung, Nagaland.

2. Shri. Imliwati Imchen,


Fazl Ali College,

Mokokchung, Nagaland. :::: Petitioners

-Versus -

1. The State of Nagaland

represented by the Chief Secretary to the Govt.

of Nagaland, Kohima.

2. Commissioner & Secretary to the Govt. of Nagaland,

Department of Higher & Technical Education,

Nagaland, Kohima.

3. The Director,

Higher Education Department,

Kohima, Nagaland.

4. Dr. Watinungsang Aier,

Reader,

Sao Chang College,

Tuensang, Nagaland.

WP(C) No.25(K)2011


3

5. Smti.Chubasangla Chang


Sao Chang College,

Tuensang, Nagaland. :::: Respondents

B E F O R E

THE HON’BLE MR. JUSTICE P. K. SAIKIA

Advocate for the Petitioners: Mr.C.T. Jamir, Sr. Adv,

Mr.Wati Jamir,

Mr. N. Lkr,

Mr. A Jamir,

Mr.W. Walling,

Mr.I. Jamir,

Mr. T. Walling, Advs

Advocate for the Respondents: GA, Nagaland for respondent No.1-3.

Mr. T. Koza,

Mr.A. Zho,

Mr.M.S. Kichu,

Ms. I. Kinny,

Ms. Rosemary,

Ms. Chemya, Advs

Ms. Aseno, Adv for respdt No.4.

Date of hearing :- 16.10.2012

Date of Judgment & order :- 07.12.2012

JUDGMENT AND ORDER (CAV)

These proceedings bearing WP(C)No.25(K)2011 and

WP(C)No.86(K)2010 having been filed on almost similar facts and

circumstances which raised some common question of laws and facts and

WP(C) No.25(K)2011


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therefore, with the consent of the parties, they are disposed of by this common

order.

2. The writ petitioner in WP(C)No.86(K)2010 was preferred mainly on the

following prayers:-

“In the premises aforesaid, it is most respectfully prayed that your Lordship may be pleased to admit this petition, call for the records and issue Rule calling upon the respondents to show cause as to why a writ in the nature of certiorari and/or Mandamus and/or any other appropriate writ/order or direction should not be issued quashing and setting aside the impugned notification dated 10.05.94 (Annexure-F to the writ petition), the impugned letter dated 15.03.10 (Annexure-H to the writ petition) and impugned Notification dated 15.06.10 (Annexure-J to the writ petition) in respect of private respondents figured at serial No.V & VI of the notification dated 15.06.10 and further direct the respondent authorities to fill up the post of Principals from amongst the senior most officers in the department in accordance with the seniority position provided under seniority list dated 09.05.88 and in accordance with law and on cause or causes being shown and hearing the parties, be pleased to make the rule absolute, and/or pass any such further or other orders as your Lordship may deem fit and proper in the facts and circumstances of the case

A N D

In the interim, pending disposal of the instant writ petition be pleased to stay/suspend the operation of the impugned notification dated 10.05.94 (Annexure-F to the writ petition), the impugned letter dated 15.03.10 (Annexure-H to the writ petition), and impugned notification dated 15.06.10 (Annexure-J to the writ petition) in respect of private respondents figured at serial No. V & VI of the notification dated 15.06.10, till the disposal of this writ petition. And/or may be pleased to pass such further order or orders as your Lordship may deem fit and proper in the facts and circumstances of the case.”

3. The writ petitioner in WP(C)No.25(K)2011 was preferred seeking, among

other things, following reliefs:-

“In the premises aforesaid, it is most respectfully prayed that your Lordship may be pleased to admit this petition, call for the records and issue Rule calling upon the respondents to show cause as to why a Writ in the nature of Certiorari and/or Mandamus and/or any other appropriate Writ/order or direction should not be issued quashing and setting aside the impugned Notification No. EDS/THE/1‐21/98 Dated Kohima, the 29th June 2010 (ANNEXURE‐‘L’ to the writ petition), the impugned Corrigendum No.EDS/THE/1‐21/98 dated Kohima the 7th October, 2010 (ANNURE‐‘M’ to the writ petition) and on cause or causes being shown and hearing the parties, be pleased to make the rule absolute, and/or pass any such further or other orders as your Lordship may deem fit and proper in the facts and circumstances of the case.”

WP(C) No.25(K)2011


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4. The facts necessary for disposal of these writ petitions, in short, are that

on the basis of competitive examination, conducted by the Nagaland Public

Service Commission (hereinafter referred to as the ‘NPSC’) and also on the

recommendation of NPSC, the petitioners were directly recruited to the post of

Lecturer in the erstwhile Higher & Technical Education Department vide

Notification No.EDS(A)106/80 dated Kohima 25.05.1984.

5. By the said Notification, some other Lecturers were also appointed in

different colleges in the State of Nagaland w.e.f. 26.03.1984 and the names of

the petitioners figured at Sl.No. 3 & Sl.No 5 respectively of the said Notification.

The petitioner No.1 at the time of filing of this writ petition was working as Vice

Principal of Fazl Ali College, Mokokchung while the petitioner No.2 was serving

as Selection Grade Lecturer (SGL) in the same college.

6. It has been stated that the present Higher Education Department, of

which the petitioners are members, had been carved out from erstwhile Higher &

Technical Education but the new department, as stated in the writ petition, has

still been working under the administrative control of the Higher & Technical

Education Department, Government of Nagaland. In 1983, by a policy decision of

the Govt. of Nagaland, a number of private colleges in the State of Nagaland had

been taken over by the Government.

7. Tuensang private college was one of such colleges, so taken over by the

Government. In view of taking over of the private colleges, the respondent No.4

and 5 who were working as Lecturer in Tuensang college were given fresh

appointment along with others vide the Govt. Notification No.EDS(A)/1/83 dated

Kohima 06.09.1983. In the said Notification, the name of the respondent No.4

appears at Sl.No.2 and the name of the respondent No.5 appears at Sl.No.3.

8. It has also been stated that the appointment of the respondent No.4 & 5

were made on purely adhoc basis for a period of four months or till the

recruitment to the post is finalised by the Commission whichever is earlier.

9. For ready reference, the said Notification at Annexure-B is reproduced

herein below:-

WP(C) No.25(K)2011


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“GOVERNMENT OF NAGALAND

EDUCATION : DEPARTMENT

N O T I F I C A T I O N

Dated: Kohima, the 6th Sept./03.

No.EDS(A)/1/83 : The Governor of Nagaland is pleased to appoint the following persons to the post of Lecturer (Class-I-Gazetted) in Tuensang College, in the Department indicated against their names in the scale of pay of Rs.700-40-110-50-1300-Assessment-504-7600/-(SIC) pm plus Innerline compensatory Allowances @20% of basic pay subject to a maximum of Rs.400/- pm and all other allowances as are admissible under rules issued from time to time with effect from the date of their taking overcharge of their duties.

Sl.No. Name Department

1. Shri.S.N. Singh Lecturer in English

2. Shri.Watisangba Aier “ “ Economics

3. Miss.S.Chubasangla Chang “ “ -do-

4. Mrs.Hutoli Sema “ “ History

5. Shri. A.C. Choudhury “ “ -do-

6. Dr. C. Singh “ “ Pol. Science

7. Shri.Ngangshikekba “ “ English.

2. The appointment are made on purely adhoc basis for a period of 4 months or till the recruitment to the post is finalised by the Commission whichever is earlier.

3. Shri. S.N. Singh, Lecturer in English will look after the current charges of the Principal, Tuensang College in addition to his duties.

Sd/- A.M. Gokhale

Secretary to the Govt. of Nagaland.”

10. On 16.10.1987, the Higher Education Department, Govt. of Nagaland,

published a tentative seniority list in respect of (i) Principal (Non UGC) (ii) Vice

Principal (Non UGC) (iii) Professor (Non-UGC) and (iv) Lecturer (UGC) inviting

claims and objections, if any, to the said tentative seniority list and on

consideration of the objections, received from the concerned officers, by a

subsequent Memorandum No.EDS(C)88/87 dated Kohima 09.05.1988, a final

seniority list for (i) Principal (Non UGC) (ii) Vice Principal (Non UGC) (iii)

Professor (Non-UGC) and (iv) Lecturer (UGC) as on 01.01.1987 was published.

11. In the aforesaid seniority list, the name of the petitioner No.1 & 2 and the

name of the respondent No.4 & 5 appeared at Sl.No.63, 66, 83 & 84 respectively.

WP(C) No.25(K)2011


7

The date of regularization of the private respondents therein had been shown as

08.05.1985 and same was said to have been done on the recommendation of the

NPSC. Said seniority list was circulated by the Memorandum, dated 09.05.1988.

But the seniority list of Vice Principal and Professor, aforesaid, had been

published as tentative seniority list.

12. However, by issuing Corrigendum No.EDS(C)88/87 dated, Kohima

31.05.1988, the word “tentative” had been deleted meaning thereby that

tentative seniority list dated 16.10.1987 became final. Thereafter, the said

seniority list was circulated in the year 2006. In such seniority list, circulated in

2006, the position of the respondent No.4 & 5 herein was shown at Sl.No.83 &

84. It has also been stated that prior to the issuance of the Notification dated

15.06.2010 all promotions were considered on the basis of final seniority list

dated 09.05.1988.

13. However, in the month of December, 2009, vide letter No.H.ED/ADMN-

A/3/2006-07 dated, Kohima 03.12.2009 the Director of Higher Education

Department submitted a proposal to the Commissioner & Secretary, Higher

Education Department, Nagaland, Kohima seeking appointment to the post of

Principal at Pfutsero College, Pfutsero. In the letter dated 03.12.2009, it has been

stated that on the basis of the representations, received from the private

respondents and on examination of their claim in the light of documents, they

furnished, the Director found that the services of private respondents need to be

regularised from 15.04.1983.

14. On the basis of the aforesaid findings, pending, updating and short listing

of the seniority list of 1988, the respondent No.4 & 5 had been recommended for

promotion to the post of Principal showing the date of regularisation of their

services as 15.04.1983 thereby making them senior to the petitioners and also

showing the petitioner No.1 below the private respondents. A copy of the said

letter was at Annexure-E to the writ petition.

15. On coming to know about the aforesaid developments, the petitioners

made an enquiry and on such enquiry, they stumbled upon the Notification

WP(C) No.25(K)2011


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No.EDS(O)7/83 dated Kohima 10.05.1994, issued by the Commissioner &

Secretary to the Govt. of Nagaland whereby the private respondents were

regularised retrospectively with effect from 15.04.1983 meaning thereby that they

were regularised in services even before they were regularly appointed to the

post of Lecturer.

16. By the said Notification, it was also provided that the services rendered by

them before the taking over of the college in which they were working would also

be counted for all purposed including counting of the services for the purpose of

fixation of seniority. The petitioners contend that the Notification dated

10.05.1994 at Annexure-F to the writ petition was never published in the

Nagaland Gazetted. Nor was it notified in accordance with the prevailing rules

and procedures.

17. Rather same was issued in hush-hush manner in order to oblige the

private respondents and that too with ulterior motive. In that process, it affected

adversely the petitioners as their seniority got downgraded and their future

prospect became more and more bleak, more so, when all those were done

without affording them an opportunity of being heard. The petitioners therefore

drabbed such conduct on the part of official respondents as arbitrary, illegal and

against the principle of natural justice.

18. Being aggrieved, on 20.02.2010, the petitioners submitted a

representation to the Director, Higher Education Department, Kohima, Nagaland

with a copy thereof to the Commissioner & Secretary, Govt. of Nagaland, Higher

Education Department requesting the former to restore their seniority in terms of

the list dated 09.05.1988 and to promote them to the post of Principal. In their

representations, they had also mentioned that their positions in the original

seniority list were far above the positions of the private respondent No.4 & 5.

19. The Director, Higher Education Department, Kohima, instead referring the

matter to the Government, as required under the existing procedure, rejected the

representation without examining the same on the ground that the private

respondents were regularized w.e.f. 15.04.1983 on the strength of Notification

WP(C) No.25(K)2011


9

dated 10.05.1994. It has further been argued that the Director has no authority to

dispose of the representation as the Government, being the appropriate

authority, could have disposed of such representations.

20. It has been pointed out by the petitioners that the Director in his letter

dated 03.12.1993 had stated that “the seniority list of 1988 has been outdated

and has been short listed”. As the petitioners were not aware of such updating

and short listing of seniority list 1988, so the petitioner No.1 requested by her

representation dated 12.04.2010 as to whether there was any updating and short

listing of seniority list aforesaid. Similar clarification was sought for by

representation dated 03.12.2009. But the petitioner No. 1 is yet to receive any

reply to such representations.

21. While the petitioners are expecting the disposal of the representations

dated 20.02.2010 and 12.04.2010, the respondent authorities issued a

Notification dated 15.06.2010 whereby and where-under altogether six officers

including the private respondents were given officiating promotion to the different

posts in the Department of Higher Education bypassing the claim of the

petitioners to such posts and such promotion has been given on the basis of

Notification dated 10.05.1994 by which the private respondents along with others

were given seniority with retrospective effect.

22. Referring to the Notification dated 06.09.1975 at Annexure-6 to the

affidavit-in-opposition, the petitioners have contended that originally, the private

respondents were regularized in services w.e.f. 08.05.1985 and same was done

on the recommendation of the NPSC. But by the impugned Notification dated

10.09.1994, the private respondents were regularized w.e.f. 15.04.1983 which is

clear violation of the Office Memorandum dated 08.07.1975.

23. For ready reference, the Notification is reproduced below:-

“GOVERNMENT OF NAGALAND

HOME DEPARTMENT: ADMINISTRATIVE REFORMS (O&M) BRANCH

No.AR-13/21/74 Dated Kohima, the 8th July, 1975

WP(C) No.25(K)2011


10

MEMORANDUM

Sub : Counting of Seniority for service rendered on Adhoc Appointment. The undersigned is directed to refer to the subject cited above and to say that it has been brought to the notice of this Department for clarification that whether the services rendered by an official on adhoc appointment should count towards seniority including leave, increment and pension etc. After careful examination it has been decided that if such adhoc services is continuous followed by regular appointment/confirmation the period of adhoc services thus rendered will count for increment, leave pension and other services benefit. But seniority in the particular cadre should count only from the date of regular appointment and should follow the order of merit given by the Nagaland Public Service Commission or the Selection Board. Sd/- A.K. BISWAS Under Secretary to the Government of Nagaland.”

24. As the Notification dated 10.05.1994 is in total contradiction of Notification

dated 08.07.1975, same also offends the policy decision incorporated in

Notification 08.07.1975. According to the petitioners, the notification dated

10.05.1994 also violates the various pronouncements made by the Apex Court of

the country on the point of regularization of services of officials rendered on

contract/adhoc basis.

25. The petitioners therefore, filed the proceeding seeking relief as aforesaid

which was numbered as WP(C) No. 86(K) /2010. Here, it needs to be mentioned

that during the pendency of the proceeding above, the Notification dated

29.06.2010 at Annexure-L to the writ petition No.25(K) 2011 as well as the

Corrigendum dated 07.10.2010 were issued.

26. The Notification dated 29.06.2010 was designed to give the service

benefits to as many as 44 officers including the private respondent No.4 & 5 in

WP(C)No.86(K)2010 in the ratio of 3:1, i.e. one year of service benefits for three

years of continuous service towards the counting of seniority. On the other hand,

the Corrigendum dated 07.10.2010 was issued partially modifying the

Department Notification dated 29.06.2010.The writ petitioners also wants those

notifications to be set aside citing similar infirmities therein.

27. The State respondents as well as respondent No. 4 have contested the

proceeding having filed separate counter affidavits. In their counter affidavit, state

respondents have denied all the allegations made against them. According to

WP(C) No.25(K)2011


11

them, the respondent No.4 submitted the Director, Higher Education Department

a representation dated 24.12. 93 contending that though his services were

regularized in 1983, some other lecturers whose services were regularized in

1984 only had been promoted as Principal depriving him from the benefit of such

promotion.

28. On making the scrutiny of the allegation in the representation in the light

of information, furnished in the documents, submitted along with such

representation, the Director found that six lecturers junior to the private

respondents had been promoted as Principal although respondent No. 4 whose

services was regularized from 15.04.1983 was not given such promotion. As

such, the Director, Higher Education Department extended similar benefits to

respondent No. 4 as well as to respondent No. 5 and one Dr. C.Singh, vide

Notification dated 10.05.1994 at Annexure-3 to the counter affidavit.

29. In that context, it has been stated that as per the Government policy in

notification dated 14.10.1994, the services of lecturers of private colleges are to

be regularized basically from the date on which the private colleges were taken

over by the Government. But such Notification also recognized the services

rendered by lectures of such colleges while they were still in the private state for

all purposes , off course on fulfillment of certain conditions, mentioned therein.

30. Since Sao Chang College, Tuen chang was taken over by the

Government on and from 15.04.1983, respondent No. 4 & 5 become government

servants from such a date and as such, the services of respondent No. 4 & 5

who were the lecturers of aforesaid college was required to be regularized w.e.f.

15.04.1983 and that needs to be done despite the notification dated 6.09.1985

which conveyed the government decision to regularize the services of private

respondents w.e.f. 08.05.1985 only.

31. In the meantime, the proposal for appointment of Principal at Pfutsero

College, Pfutsero had come up for consideration. While the matter relating to the

appointment of Principal of Pfutsero was under consideration, vide his letter

dated 3rd December, 2009 at annexure E to the writ petition, the respondent No.3

WP(C) No.25(K)2011


12

has pointed out that on the examination of the representation received from the

respondent No.4, the seniority list have been upgraded and same was as follows:

i) Dr. Wattingsang Aier, Reader, Sao Chang College (ii) Smti.S.

Chabangla Chang as SLG and (iii) Smti. Chubyangla Longkumer as SLG

Fazl Ali College.

32. On getting information about the submission of proposal for filling the post

of Principal at Pfutsero College vide letter dated 05.03.2009, the petitioners

submitted a representation dated 20.02.2010 claiming seniority over the private

respondent No.4 & 5. The respondent No.3 on examining the representation

aforesaid found the claim of the petitioner not tenable in law and as such,

reiterated the seniority position submitted to the Govt. earlier.

33. Referring to the seniority list of 1988, the State respondents claim that the

seniority positions of lecturers keeps on changing and lists is, therefore, required

to be updated from time to time. Many a change, which occurred since the issue

of seniority list of 1988, were unfortunately were not incorporated in the seniority

list of 1998. Therefore, the list of 1988 cannot be considered to be the final

document on seniority of the lecturers for all time to come so as to make

promotion only on the basis such a seniority list.

34. Regarding the allegation that the Notification dated 10.05.1994 was

brought into existence in a hush-hush manner in order to give some education

Officers undue benefits, more particularly, respondent No.4 & 5, it has been

submitted that same was duly circulated since a copy of the same was forwarded

to all concerned including to the publisher, Nagaland Gazette, Kohima.

Therefore, the allegation that said Notification was brought into existence into

hush-hush manner is nothing but a down right falsehood.

35. Referring to the Office Memorandum dated 08.07.1975, it has been

stated there was no contradictions between the office Memorandum and

Notifications aforesaid. But even one assumes for the sake of arguments that

there is contradictions between the O.M. dated 08.07.1975 and notification dated

10.05.1994, same cannot be challenged at this belated stage. On the above

WP(C) No.25(K)2011


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contention, the respondents have prayed for dismissal of these writ petitions filed

by the petitioners.

36. On the other hand, the respondent No.4 having filed counter affidavit

supported all the contentions advanced by state respondents. He further submits

that there are three modes of appointment to the post college lecturer.

37. For ready reference relevant part of his counter affidavit is reproduced

below:-

“…………. a) The different mode of appointment procedure followed for the post of lecturers by the Government is as follows:-

(i) through selection process conducted by the Nagaland Public Service Commission (NPSC).

(ii) when private Colleges are taken over by the State Government

(iii) absorption of service for those who have completed three years and above in adhoc/contract basis by applying the principles of 3:1.”

38. He therefore, submits that none of the notifications impugned in WP(C)

No. 86(K) 2010 and WP(C) No. 25(K) 2011 are open to the charge of being

illegal, arbitrary and against the principles of natural justice. He therefore, urges

this court to dismiss both the writ proceedings initiated by petitioners aforesaid.

39. The writ petitioners have filed their affidavit-in-reply in response to the

affidavit filed by the respondents No.1 to 3 and respondent No. 4 refuting the

counter -allegations made therein. On admitting that the Govt. has full

competence to take policy decision on matters of public importance, they

contend that under the grab of taking the policy decision, the Govt. could not

ignore the existing rules and law which already hold the field.

40. However, the Notification dated 10.05.1994 had encroached a space

already occupied by Office Memorandum dated 08.07.1975 which laid down a

clear policy regarding the regularization of services of official working on

adhoc/contract employees. This apart, the Apex Court also clearly pronounces

the law on the field which is quite in consonance with the policy incorporated in

O.M. dated 08.07.1975. Therefore, notifications, aforesaid, cannot escape being

found illegal, arbitrary and against the principles of natural justice.

WP(C) No.25(K)2011


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41. Referring to the necessity of making change in the seniority list, it has

been submitted that seniority list once finalized may be reviewed from time to

time but such review needs to be done to accommodate the genuine changes in

accordance with rules and procedures. It cannot be done to further interest of

someone in the good book of Govt. and that too adversely affecting the genuine

interest of some other officers. But that was not done in our instant case, alleged

learned counsel for the petitioners.

42. Here it needs to be mentioned that during the pendency of this

proceeding on 30.06.2010, the University Grant Commission (in short ’UGC’) has

drawn a policy for prescribing minimum qualification for appointment and career

advancement of lecturer, reader and professor in the university and college and

as per the said policy, no one can be appointed Principal of a Govt. college

unless he/she possesses certain qualifications and securing at least 55% marks

in Master’s or equivalent grade is one of such qualifications.

43. It has been pointed out that the petitioner No.1 did not possess such

qualification and therefore, even if she succeeds in getting the relief, sought for

in this writ petitions, she cannot be appointed as Principal due to her not having

requisite qualifications. This is another ground why this writ petition in respect of

the petitioner No.1 needs to be rejected.

44. In trying to refute such a contention , advanced by the learned counsel

for the respondent No. 4, it has been pointed out that the promotion of the

petitioners became due long before the aforesaid Notification came into

operation and as such, she cannot be deprived of such benefits banking on a

Circular which came into being long after her promotion became due, more so,

when her juniors were promoted to the post of Principal without having all the

qualifications, mentioned in the aforesaid UGC Notification. The petitioners,

therefore, urge this court to granting them the reliefs, sought for.

45. I have given my anxious consideration to the rival submissions having

regard to the pleadings of the parties and documents annexed therewith. But

before could we proceed further, I find it necessary to know if there is any

WP(C) No.25(K)2011


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contradiction between the Notifications aforesaid and the Office Memorandum

dated 08.07.1975 and various pronouncements made by the Apex Court of the

country on the point covered by Office Memorandum aforesaid.

46. I have already found that writ petitioners consider the Notification dated

10.5.1994 or for that matter the Notification dated 14.10.1993 to be Notification in

stark contradiction with the Office Memorandum dated 6.5.75, particularly in

matter of counting of past service, rendered on adhoc/contract basis for the

purpose of fixation of seniority.

47. In that connection, it has been pointed out that the Office Memorandum

dated 6.5.75 prohibits the authority concerned from regularizing the services of

the officials from the date on which they enter service on contract or adhoc basis

in so far counting of seniority is concerned. But the Notification dated 10.5.1994

or for that matter the Notification dated 14.10.1993, tries to enforce what the

Office Memorandum dated 6.5.75 prohibits so assiduously.

48. The petitioners seem to have entertained such an opinion because of the

assumption that though Notification dated10.5.1994 principally tries to regularize

the services of lectures of private colleges on and from the date on which such

colleges were taken over by the State Govt. but it also gives weightage to the

service, so rendered to such colleges before they were taken over by the

government.

49. More important, such past services are to be counted even for the

purpose fixation of seniority of those college lectures. According to petitioners,

there cannot be any quarrel over the regularization of services of lectures of

private college from the date on which such colleges were taken over by the

Government. Being so, up to that extent they did not question the legality of the

notifications aforesaid.

50. But concession ,granted, goes that far and no further since , according to

the petitioners , the making of provisions for counting of services, rendered to

such colleges by the lecturers before they were taken over by the Government

even for the purposes of counting seniority is clearly violative of Office

WP(C) No.25(K)2011


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Memorandum dated 06.09.1975 as well as various decisions rendered by the

Hon’ble Apex Court which prohibit the regularization of past service on

adhoc/contract basis for the purpose of fixation of seniority.

51. However, such assumptions/presumptions, in my considered opinion, are

totally unfounded. In order to appreciate problem under consideration well, one

needs to know the background in which such Notifications came into being. It is

a well known fact that the most of the teachers of all private colleges had to

render years of services before such colleges were taken over by the

Government.

52. It is also in the every body’s knowledge month rolls into years, years slips

into decade and decades into perpetuity but the dreams of lectures of private

colleges becoming government servants one day on regularization of their

services remain dreams and dreams only and in that process, many of the

lectures get retired from jobs serving on an honorary basis or on nominal salary.

The sacrifice, so made, is, therefore, simply enormous in the term of time, energy

and above all, the loss of years of productivity in those teachers.

53. Instances may not be few and far between when such teachers had to

call it a day after years of voluntary services without touching a fording coming to

them from the Government treasury. What is worse, they had to suffer such

agony, misery, wretchedness despite they being far too well equipped with all

wherewithal, necessary to make live and living comfy cozy and comfortable .

54. This is nothing but some sorts of human tragedy, more so, when the

teachers sacrifice their today to secure the tomorrow of the students who are

aptly called the future of the country. It is in those settings, when one considers

the policy, incorporated in the Notification under scrutiny, he cannot but conclude

that policy aforesaid tries to address huge human problem with profound

sympathy. Such a policy is quite in tune with principles of natural justice and

constitutional dicta as well.

55. Being so, in my considered opinion, such a policy cannot be drabbed as

arbitrary, illegal and against all established rules and procedures and to that

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extent, the contention of the petitioners that the policy, so incorporated, in the

Notification dated 10.04. 1994 and the Notification dated 14.10.1993, particularly

Notification dated 10.04.1994 is arbitrary, illegal and against all established rules

and procedures cannot be accepted.

56. Policy in the Notification dated 10.04. 1994 and the Notification dated

14.10.1993 having been found well fortified on moral ,ethical and social

consideration , let me consider whether it offends Office Memorandum dated

6.5.75 and various pronouncements, made by the Apex Court of the country on

the matter under consideration. Coming back to the Notification dated

10.05.1994 and 14.10.1993, I have found that said Notifications stipulate certain

conditions for regularization of services of lecturers in private colleges. They are:-

(i) Services of such lecturers would be regularised basically on the date

on which such colleges are taken over by the Govt.;

(ii) They must serve such college for certain length of time before being

taken over by the Govt. in order to get the benefit of past services, more

particularly, in matter of fixation of seniority.

(iii) The period, so prescribed, is minimum 3(three) in case of teachers

who had UGC norms and 4(four) years in case of teachers who are not

having such norms.

(iv) For every three years of service, one year would be counted towards

fixation of seniority of such teacher and

(v) Such services must be continuous.

57. As a corollary to the above conditionalities, the lecturers of private college

must fulfill some other conditions as well. They are:-

(i) They must be appointed by some authority in those colleges who had

competence to do so and

(ii) The appointments, they were given by such authority, must be for

indefinite period as against appointment on adhoc/contract basis.

58. When those conditionalities are considered in the background in which

those Notifications were brought into being, one cannot find fault with

Governments giving some weightages to the past services, rendered by

teachers of private colleges even for the purpose of fixation of seniority, more so

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,when those Notifications intend to address huge human problem with a touch of

humanity in order to wipe out, if not all, some of the problems which cripple their

lives and living of teachers of private colleges over a very long period of time.

59. Viewed from that angle, there cannot be any escape from the conclusion

that the Notifications which give some weightages to the past services, rendered

by teachers of private colleges even for the purpose of fixation of seniority no

way offend either various judicial pronouncements or the policy incorporated in

the Office Memorandum dated 6.5.75 propagated by the Government to carry out

interest of public importance.

60. Situation being such, let us see how far the policy, incorporated in the

Notification dated 10.05.1994 or for that matter the Notification dated 14.10.1993

cover the cases of the respondent No.4 & respondent No. 5. On perusal of the

letter dated 06.09.1983, it would appear clear that they were appointed as

lecturers on adhoc basis for a period of four months or till the recruitment to the

post was regularized by the Nagaland Public Service Commission or whichever

was earlier.

61. The Notification dated 06.09.1985 at Annexure-6 to the counter affidavit

further fortifies that the respondents No. 4 & 5 were regularized with effect from

08.05.1985 and as indicated in the letter dated 06.09.1983, same was done on

the recommendation of NPSC, vide their letter dated No.NPSC/REG/1/85 dated

08.05.1985. There is absolutely nothing on record to show that the Notification

dated 08.05.1985 had been ever withdrawn or recalled subsequently by the

concerned authority.

62. Letter dated 06.09.1983 and Notification dated 06.09.1985, therefore,

very firmly demonstrate that the respondent No.4 & respondent No. 5 were at

first appointed as lecturers on adhoc basis and on the recommendation of the

NPSC, they were subsequently regularized in their services with effect from

08.05.1985. To put it slightly differently, the respondent No. 4 and respondent

No. 5 were regularized in service only on and from 08.05.1985. Any other

conclusion would be incompatible with materials available on record.

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63. Since they were appointed on adhoc basis and since they were

regularized in service with effect from 08.05.1985 and that too on the basis of the

recommendation of the NPSC, their case cannot be said to have been covered

by the policy, incorporated in the Notification dated 14.10.1993 or for that matter

the Notification dated 10.04.1994 and as such, they cannot claim regularisation

of their services on and from the date on which the college in which they were

working as lectures was taken over by the Government.

64. However, the case of the petitioner is different altogether. I have found

that the petitioners herein were duly appointed to the posts of lecturer in Fazl Ali

College with effect from 26.03.1984 and same was done on the recommendation

of the NPSC. Situated as such, their seniority needs to be counted from

26.03.1984 itself. They are, therefore, certainly and surely much senior to the

respondent No.4 & 5 in services since respondent No.4 & 5 got regularized in

service with effect from 08.05.1985 only.

65. However, the respondent No.3 or for that matter other official

respondents, on wrong interpretation of the facts on record, issued the

Notification dated 10.05.1994 regularizing the services of the respondent No.4 &

respondent No. 5 with effect from 15.04.1983, being the date on which Sao

Chang College, Tuensang was taken over by the Government. But such an

interpretation, being totally unfounded, cannot be allowed to sustain.

66. However, official respondents labouring under same wrong notion,

issued a Notification dated 29.06.2010 at Flag-L to the petition in WP(C)

25(K)/2011 showing the date of contract appointment of Respondent No. 4 and

Respondent No. 5 as 03.10.1979 and 0.08.81 respectively wherein the date of

regularization of their services was shown as on from 15.04.1983.

67. Worse still, by the Corrigendum, dated 07.10.2010 at Flag-M to the same

petition, the dates of contract appointment of the respondent No. 4 & respondent

No. 5 has again been shown as 01.03.1983 and 01.08.1981 respectively

whereas the dates of their regular appointment to the posts aforesaid were

shown as 01.03.1984 (1983?) and 15.04.1983.

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68. Notification dated 29.06.2010 at Flag-L and the Corrigendum, dated

07.10.2010 at Flag-M, in my considered opinion, instead of advancing the cause

of the of respondent No. 4 and Respondent No. 5 makes their claim that

respondent No. 4 and Respondent No. 5 were regularised on and from

01.03.1984 and 15.04.1983 respectively more and more unreliable and

untrustworthy. The fact that their original appointments were shown as

contractual appointment only makes such a conclusion inevitable.

69. Learned counsel for the respondents have submitted that even if one

assumes for the sake of argument for a moment that a incorrect interpretation is

given vis-a-vis regularization of services of respondent No. 4 and respondent No.

5, yet, for the failure of the petitioners to agitate such matter in time, they have

forfeited their rights to come up before this Court with a writ petition after a gap of

almost 16 years since the writ court never sides with the indolent.

70. I have found that the petitioners in their writ petitions repeatedly contend

that they came to know about the existence of the Notification dated 10.05.1994

only when the respondent No.4 & 5 were recommended for promotion to the post

of Principal on the basis of the Notification aforesaid. The moment, they came to

know about the same, they come up before the Court and agitated their

grievances seeking appropriate relief as well.

71. They also claim that the aforesaid Notification was never circulated to the

authorities concerned including the publisher of Nagaland Gazette. As they were

not published as required under the rules and procedures, they remained in the

dark about the existence of such Notifications over a long period of time. In such

a scenario, no offence can be taken for their not coming to the writ court

immediately after the alleged publication of the Notifications, aforesaid.

72. In that context, learned counsel for the respondents has submitted that

since it is apparent from the Notification aforesaid that same was forwarded to all

concerned including the publisher of Nagaland Gazette, it needs to be presumed

that it was duly published. However, such an argument is found to be farfetched

WP(C) No.25(K)2011


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one since the official respondents made no effort whatsoever to show that such

Notifications were really circulated as required.

73. Same could have been done merely by calling someone from the

concerned authorities who are all under the administrative control of some of the

respondents. But they did nothing to discharge the obligations which sit heavily

on their shoulder for the strong denial on the part of petitioners. In the face of

above failure on the part of the respondents, there cannot be an escape from the

conclusion that the Notifications in question were not properly published for

information of all concerned, more particularly, affected ones. In such a scenario,

I have no other option but to turn down attack mounted on this count.

74. I have also found that in his affidavit, respondent No.4 tries to resist their

claim for seniority of the petitioners saying that there are three modes of

appointment to the post of college lecturers which are indicated in his affidavit

and taking over the private college with all the teachers and staff is one of such

modes of recruitment. According to him, the respondent No.4 & respondent No. 5

became regular lecturers of Government College when Sao Chang College,

Tuensang was taken over by the Government on 15.04.1983.

75. Respondent No.4 again submits that on considering the services,

rendered by him at Tuensang college till the date of taking over by the

Government, a weightage was given to the past services, rendered by the

respondent No. 4 for the purposes of counting his seniority on the basis of

formula fixed and thus, his service seniority was actually counted on the basis

aforesaid formula and on doing so, his service was regularized with effect from

01.03.1984 (1982?).

76. Therefore, it does not lie in the mouth of the writ petitioners to say that the

respondent No.4 & respondent No. 5 are not senior to them in service. But the

aforesaid matter has been dealt in detail in our forgoing discussion and same

needs no further reiteration here. Suffice it to say that the contention of the

respondent No.4 that the date of regularization of services of respondent No. 4

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and respondent No. 5 from 1.3.1984 (1982?) and 15.04.1983 respectively is

found to be totally devoid of substance.

77. It is again been contended in view of the Circular dated 30.05.2010

issued by UGC, the petitioners, more particularly, the petitioner No.1 became

ineligible to the post of Principal since she did not have the requisite qualification

in the form of marks, to be obtained at Masters Degree and also for not having

Ph.D. which were sine quo non to be considered for appointment to the post of

Principal under the new guidelines, issued by the UGC.

78. I have found that the guidelines came into operation on and from

30.05.2010. But the promotion of the petitioners to the post of Principal became

due even before the Circular dated 30.05.2010 became effective. Being so, the

matter relating to her promotion needs to be considered, not under new Circular,

but under one, which held the ground during the time under consideration.

79. The fact that teachers, junior to her were already considered for

promotion and in fact, they were already granted officiating promotion only

confirms that the petitioners need to be considered under the old Circular only

and if they are found otherwise qualified to be promoted to the post of Principal,

they are required to be promoted to the post of Principal on and from the date on

which their juniors were promoted to such post.

80. In view of above, I am of the opinion that the Notification dated

10.05.1994 at Annexure-F, letter dated 15.03.2010 at Annexure-H, Notification

dated 15.06.2010 at Annexure-J to the writ petition in WP(C)No.86(K)2010 and

Notification dated 29.06.2010 at Annexure-L and Annexure-M to the writ petition

in WP(C) No.25(K) 2011 in so far they relate to the respondent No.4 & 5, are

required to be set aside, same being illegal, arbitrary and without any basis

whatsoever.

81. Consequently, the aforesaid Notifications stand set aside and the position

of the petitioners No.1 & 2 as well as respondent No.4 & 5 stands restored to the

places as shown in the final seniority list of 2008.

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82. Further, the State respondents are directed to conduct a special DPC to

consider the promotion of the petitioners to the post of Principal and to make

necessary recommendation to the concerned authority, if they are otherwise

found eligible for promotion to the post of Principal.

83. Needles to say that Respondent No.4 and Respondent No.5 may also be

considered for promotion to the post of Principal provided there are vacancies

and provided they are otherwise qualified.

84. With the above directions and observations, both the writ petitions are

accordingly disposed of.

JUDGE

lk / V.Lyndem

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