Jamir & Ors. Vs. State of Nagaland & Ors.  INSC 1238 (17 July
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4486 OF
2009 (Arising out of S.L.P. (C) No.10895 of 2005) I. Chuba Jamir & Ors.
.....Appellants Versus The State of Nagaland & Ors. .....Respondents
Appellant no.1, I. Chuba Jamir was writ petitioner no.2 before the
High Court, appellant nos. 2 to 2/4 are the heirs and legal representatives of
writ petitioner no.3 who died in the course of litigation before the High Court
and appellant no.3 Vilapral Aja was writ petitioner no.4 before the High Court.
Appellant No.1 is reported to have retired during the pendency of the appeal.
The two appellants and the deceased writ petitioner sought to
challenge the appointment/promotion of respondent No.3, who was earlier posted
as Statistician-cum- Economist in the PWD and Housing department, as Assistant
Director in the Nagaland Economics and Statistical Service as a consequence of
the encadrement of the post held by him in the PWD and Housing department with
the E & S Service. They also challenged the tentative gradation list of the
officers of the Service issued on October 26, 1998 in which respondent No. 3
was placed above them.
Appellants 1 and 3 and writ petitioner No. 3 (since deceased) were
all appointed as direct recruits, through Nagaland Public Service Commission as
Statistical Officer (Class II Gazetted) in the Economics and Statistical Service
of the State. Writ petitioner No. 3 was appointed on June 21, 1984 and
appellants 1 & 3 on June 28, 1984.
25, 1990 five posts of Assistant Directors fell vacant when incumbents on those
posts were promoted as Deputy Directors (Class I Gazetted) in the Directorate
of Economics and Statistics. According to the appellants, by that time they had
completed more than five years in service and were otherwise eligible for
promotion as Assistant Directors in terms of the Nagaland Economics and Statistics
Service Rules. They were, however, not considered for promotion at that time.
On February 2, 1988, on the recommendation of the Public Service
Commission, the 3rd respondent was appointed to the post of Statistician-cum-
Economist (Class I Gazetted) in the department of PWD and Housing. There being
no avenues for his promotion in the department of PWD and Housing he made
representations for transferring him along with the post to the State Economics
and Statistical Service, giving an undertaking in writing that he would not
claim the benefit of past service for the purpose of seniority. On December 21,
1992 the Government of Nagaland in the department of Planning and Co-ordination
issued an order conveying "the approval of the Governor of Nagaland to the
encadrement of the post of Statistician-cum-Economist (Class I Gazetted),
Traffic Engineering Cell, under the department of Works and Housing Nagaland,
created on 17.3.1980, with the Nagaland Economics and Statistics Service along
with the incumbent Shri Y. Sacheo Ovung in the cadre of Assistant Director in
the pay scale and with all other allowances admissible to that post. The order
further stated that Y. Sacheo Ovung (respondent No. 3) was accordingly
transferred to the department of Economics and Statistics but consequent upon
the encadrement he would have no claim of seniority over the other officers
already posted as Assistant Directors (E/S). His seniority in the cadre of
Assistant Director (E/S) would be counted from August 13, 1992. He was posted
in the department of Works and Housing as Assistant Director (E/S) with
further stated that it was issued with concurrence of the Governor's Executive
Council vide Agenda No.8 dated August 13, 1992.
Later on in supersession of this order a Notification was issued
on October 27, 1993 that reads as under:
No.STAT/P-17/92 Dated Kohima, the 27th Oct. 1993 In supersession of this
Department's order of even number dated 21.12.1992 the Government of Nagaland
is pleased to encader the Services of Shri Y.S.Ovung
Statistician-cum-Economist, Department of Works and Housing as Assistant
Director in the Directorate of Economics and Statistics in the scale of pay
Rs.1175-50-1775-EB-50-1975-55-2305/-p.m. (Class I Gazetted) Plus Innerline
compensatory Allowance 25% of the basic pay and all other allowances as are
admissible under the Rules issued from time to time w. e. f.
subjected to the following conditions:-
seniority in the new cadre shall be counted w.e.f. 13.8.1992 only.
pay in the new cadre shall be fixed under the provisions of F.R.C.
Y.S. Ovung has been posted to the Department of Works and Housing as Assistant
Director (E/S) with effect from 21.12.1992.
issues with the concurrence of the Governor's Executive Council vide Agenda
No.8 of No.CA8-34/92dated 13.8.1992 and clearance of P and A.R. vide their U.O.
No.2826 dated 6.10.1993."
On August 6, 1996 respondent No.3 was promoted to the post of
Deputy Director in officiating capacity. On the same date appellants1 and 3 and
writ petitioner no.3 were promoted as Assistant Directors. On October 26, 1998
a tentative seniority list of officers of the Economics and Statistical Service
was circulated in which respondent No.3 was shown at serial No.7 and the writ
petitioners were shown below him. The two appellants and the deceased writ
petitioner spent the next two years in filing departmental representations and
finally approached the Gauhati High Court by writ petition being W.P. (C)
No.22(k)/1999, in substance challenging the respondent's encadrement as
Assistant Director in the State Economics and Statistical Service that took
place about 7 years ago in the years 1992-93. The writ petition was opposed by
the State and respondent No.3 on the plea that it was a case of encadrement
which was a matter of policy decision by the Government. Moreover, the writ
petitioners had sat over the matter for more than 7 years and the writ petition
was, therefore, liable to be rejected on grounds of delay and laches alone. A
learned Single Judge of the High Court disposed of the writ petition by
judgment and order dated July 14, 2000 with a number of directions in favour of
the writ petitioners. The learned Single Judge accepted the case of the State
that the encadrement of the post of Statistician-cum- Economist in the
department of PWD and Housing along with its incumbent, respondent No. 3 with
the State's Economics and Statistical Service was effected after due
consultation with the concerned departments and with the approval of the
Nagaland Public Service Commission. Further the decision of encadrement was
taken at the highest level in the State Government. The learned Single Judge
concluded that the decision of encadrement having been taken by the highest
authority in the government of the State no interference in the matter was
called for. The learned Single Judge also noted the contention on behalf of the
respondents that the matter was being agitated after about 7 or 8 years and any
interference at that stage would lead to a lot of dislocation. But he did not
make any pronouncement on that issue whether for that reason the writ petition
was liable to be dismissed or whether in the facts of the case the delay of
seven or eight years was of no consequence. From this stage the learned Single
Judge went on to hold that vacancies in the post of Assistant Director had
arisen in the year 1990 itself when the writ petitioners were already eligible
for promotion to that post. He further observed that had they been promoted as
Assistant Directors in 1990 they would have ranked senior to respondent No.3.
On that reasoning he directed that the writ petitioners should be deemed to
have been promoted to the posts of Assistant Director notionally one day prior
to the date on which respondent no.3 was appointed/promoted as Assistant
Director. He further directed that the inter se seniority of the writ
petitioners and respondent no.3 should be re-fixed accordingly.
following the redetermination of their inter-se seniority the post of Deputy
Director, then held by respondent No. 3, would be filled up on regular basis
taking into consideration the writ petitioners with their restored seniority.
Against the judgment and order passed by the learned Single Judge
respondent No.3 filed an internal court appeal being Writ Appeal No. 347 of
2000 which was allowed by judgment and order dated December 20, 2004 passed by
a Division Bench of the High Court. The Division Bench noted that in 1992 when
respondent No. 3 came to the Economics and Statistical Service as Assistant
Director following the encadrement of his post held in the PWD and Housing
department with the Economics and Statistical Service the writ petitioners were
working as Superintendents and, therefore, there was no question of their
deemed promotion as Assistant Directors one day prior to the date respondent
No. 3 came to that post. It, accordingly, allowed the appeal observing as
order of encadrement dated 21.12.1992 has been challenged in the writ petition
filed in the year 1999 by the writ petitioners who were working as
Superintendents on 21.12.1992. They were promoted to the post of Assistant
Director by orders passed on 6.8.196 i.e. about four years after encadrement and
appointment of the appellant to the post of Assistant Director.
the private respondents cannot claim seniority over the appellant who had
joined as Assistant Director much earlier in point of time."
Mr. P. K. Goswami, learned Senior Advocate appearing for the
appellants took us through the different provisions of the Nagaland Economics
and Statistics Service Rules, 1973. Learned counsel submitted that Schedule-II
of the Rules provides that the post of Assistant Director in the E & S Service
would be filled up only by promotion and the eligibility and other conditions
for promotion to the post is "five years in continuous service as
Statistical Officer/District Statistical Officer." Mr. Goswami submitted
that in 1990 when vacancies arose in the posts of Assistant Director in the E
& S Service the appellants and the deceased writ petitioner had completed 5
years continuous service as Statistical Officers and were eligible for the
they were denied promotion and respondent no.3, who was in another government
department, was promoted as Assistant Director and brought in to the E and S
Service above the appellants and the deceased writ petitioner.
Mr. Goswami then referred to the method of recruitment under Rule
5 which earlier provided as follows:- 5. "Method of recruitment:
Recruitment to the service shall be made by any or all of the following a) by
direct recruitment b) by promotion of persons of lower grade and c) by
permanent/temporary transfer or selection of personnel employed under the
(C) of Rule 5 was deleted by Notification issued in December 1976 and
thereafter, learned Counsel contended, it was no longer permissible to fill up
the post of Assistant Director by transfer or selection of a person employed in
any other government department.
Mr. Goswami also referred to Rule 14 dealing with `Seniority"
and Rule 16 dealing with "Gradation List" that provides as follows:-
"There shall be prepared every year of (sic) a gradation list consisting
of the names of all members of the service arranged in the order of
Counsel submitted that the expression "all members of the service"
legal connotation and it would include only those who were validly appointed in
substantive capacity under the provisions of Rule 5 read with Schedule-II. (In
support of the submission he relied upon an observation made in a decision of
this Court in State of U.P. vs. Rafiquddin and Others, AIR 1988 SC 162 (172).
He submitted that since the appointment/promotion of respondent No.3 on the
post of Assistant Director was not made validly and legally, he could not be
considered as a member of the service and his name could not figure in the gradation
list, much less above the two appellants and the writ petitioner.
Mr. Goswami next submitted that the Division Bench of the High
Court was patently in error in non-suiting the two appellants and the deceased
writ petitioner on grounds of delay and laches. He submitted that the learned
single Judge of the High Court had entertained and adjudicated upon their
claims on merits and had given them material reliefs. It was, therefore, no
longer open to the Division Bench to throw out their case on grounds of delay
and laches. In support of the submission he relied upon a number of decisions
but we need take note of only some of them.
In R.S. Deodhar vs. State of Maharashtra, AIR 1974 SC 259, it is
indeed true that this Court entertained a writ petition filed under Article 32
of the Constitution after ten or twelve years of the accrual of the cause of
complaint and granted suitable reliefs to the petitioners but from paragraph 9
of the judgment it appears that there was ample justification for the delay by
the petitioners in coming to the Court. Further, paragraph 9 of the judgment
made it very clear that the Rule which says that the Court may not enquire into
belated and stale claim is not a rule of law but a rule of practice based on
sound and proper exercise of discretion. In other words, whether or not delay
and laches would be fatal to the claim of the seeker would depend a great deal
on the facts and circumstances of each case. The decision in R.S. Deodhar
certainly does not lay down an inviolable rule that once a writ petition is
entertained on merits the appellate court is powerless in going into the
questions of delay and laches, the conduct of the writ petitioner(s) and the
consequences of granting the reliefs sought for at the highly belated stage.
Hirday Narain vs. Income Tax Officer, Bareilly, AIR 1971 SC 33,
was a case arising under the Income-Tax Act and the issue in that case was not
delay or laches but the availability of an alternative remedy to the appellant.
The decision has no application to the facts of the present case.
L. K. Verma vs. HMT Ltd. and Another, (2006) 2 SCC 269, was a case
of removal from service of an individual employee and the issue before the
Court (in paragraph 21 of the judgment) was not delay or laches but the
existence of alternative remedy.
Kanak (Smt) and Another vs. U.P. Avas Evam Vikas Parishad and
Others, (2003) 7 SCC 693 was a case arising from a land acquisition proceeding
and in that case also the issue was not delay or laches but the existence of
On a careful consideration of the materials on record and the
submissions made by Mr. Goswami we are unable to accept the claims of the
appellants-writ petitioners. In our view the inordinate delay of 7 or 8 years
by the appellants-writ petitioners in approaching the High Court was a very
valid and important consideration. This aspect of the matter was also brought
to the notice of the Single Judge but he proceeded with the matter without
saying anything on that issue, one way or the other. It was, therefore,
perfectly open to the Division Bench to take into consideration the conduct of
the appellants-writ petitioners and the consequences, apart from the legality
and validity, of the reliefs granted to them by the learned single Judge.
Moreover, we find that the submissions of Mr. Goswami are based on
the premise that respondent no.3 was brought to the post of Assistant Director
in the E and S Service of the State by giving him promotion. This basic premise
is unfounded. It was not a case of promotion at all but it was a case of merger
of the post held by him in the department of PWD and Housing with the post of
Assistant Director in the E and S Service of the State. In the interest of
administration it is open to the State Government, as a matter a policy, to
bring about merger of posts/cadres and, ordinarily, the matter does not want
any interference by the Court. (See: Vinay Kumar Verma and Others vs. State of
Bihar and Others, (1990) 2 SCC 647; S.P. Shivprasad Pipal vs. Union of India
and Others, (1998) 4 SCC 598).
We may also add here that the validity and legality of the
Government Order and the Notification effecting the encadrement of the post
held by respondent no.3 in the PWD and Housing Department with the E and S
Service does not seem to have been squarely challenged before the High Court.
One can understand that the Court, on scrutiny, might find that the encadrement
was wrong and illegal. In that case the Court would undoubtedly strike down the
encadrement resulting in the posting of respondent No. 3 as Assistant Director
in the E & S Service notwithstanding the fact that the decision was taken
at the highest level in the government and the notification was issued with the
approval of the highest government functionary. But the learned Single Judge
accepted the validity of the encadrement and yet proceeded to direct the deemed
promotion of the appellants-writ petitioners as Assistant Directors from a date
prior to the appointment of respondent no.3 as Assistant Director. The only
ground for passing such extra ordinary order was that when vacancies arose in
the post of Assistant Director the appellants-writ petitioners were eligible
for promotion. It is elementary and well settled that mere eligibility does not
confer any right for promotion. The direction of the learned Single Judge,
viewed from any angle was unsustainable. The Division Bench was perfectly right
in setting aside the order of the learned Single Judge.
In the light of the discussions made above, we find no merit in
this appeal. It is accordingly dismissed but with no order as to costs.
..................................J. [TARUN CHATTERJEE]
..................................J. [AFTAB ALAM]
July 17, 2009.
1-A ( For COURT No.4 SECTION XIV Judgment ) SUPREME COURT OF INDIA RECORD OF
PROCEEDINGS Civil Appeal No.......of 2009 @ SLP(C) No. 10895 of 2005 I. Chuba
Jamir & Ors. .. Appellant(s) Versus The State of Nagaland & Ors. ..
Respondent(s) DATE : 17/07/2009 This matter was called on for pronouncement of
Appellant(s) Mr. Rajiv Mehta, Adv.
Respondent(s) Mr. Rajesh Singh, Adv.
Mr. Justice Aftab Alam pronounced the judgment of the Bench comprising Hon'ble
Mr. Justice Tarun Chatterjee and his Lordship.
appeal is dismissed with no order as to costs in terms of the signed judgment
which is placed on the file.
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