Meyalemla and 22 Ors v. The State of Nagaland and 10 Ors

i IN THE GAUHATI HIGH COURT CfXe HlCn COUnf OF ASSAtvt, NAGILAND, MIZOR'a'nA 1NO ARUNACHAL PRADESH) [KOIIINAI BENCHI WRIT PETITIoN (c) N9. I?6(R oF 29le

¶1Smti Meyalemla, Sr. Supervisor, CDPO Office, Dimapur (U), Nagaland.

¶2Smti Unice Sema, Sr. Supervisor, CDPO Office, Dansitrpat, Drmapvr.

¶3Smti Reyivolu Kezo, Sr. Supervisor, CDP O Ttrbal, Kohima'

¶4Shri ZubemoJamr, Sr. Supervisor, DWO Office, Wokha

¶5Shri Alongla Aonok, Sr. Supervisor, Special Home & ObservationHonte, Pherima'

¶6Smti Khonbent'Jamt, Sr. Supervisor, CDPO Office, Dimapur (U).

¶7Smti Limasangla, Sr. Supervisor, AWTC Dtphubar, Drmapur

¶8Shri SunePwaPanS, Sr. Supervisor, DWO Office, Mokokchung'

¶9Shri M. LakiumonS, Sr. Supervisor, DWO Office, Shamator'

¶10Smti R. Lanuakum Walling, Sr. Supervisor, CDPO Office, Chantongya, Mokokchung.

¶11Smti MeYangla Pongner, Sr. Supervisor, CDPO Office, Chukitong, Wokha.

¶12Shri L. Nikuto Chishi, Sr. Supervisor, CDPO Office, Dimapur (U).

¶13Shri Zachamo Ngullie, Sr. Supervisor, CDPO Office, Jakahama, Kohima.

¶14Smti Amilo Yanthan, Sr. Superwisor, CDPO Office, Sanis, Wokha.

¶15Shri LongshithrnS, Sr. Supervisor, CDPO Office, Wozhuro.

¶16Smti Atsole Khalo, Sr. Supervisor, CDPO Office, Ongpangkong (N).

¶17Smti Erenbeni Kikon, Sr. Supervisor, CDPO Office, Wokha.

¶18Shri Bendangtemsu, Sr. Supervisor, CDPO Office, Wakching, Mon. 1 9. Shri A. Nzanb emo Jamr, Sr. Supervisor, CDPO Office, Chukitong, Wokha.

¶20Shri Vishiho AYe, Sr. Supervisor, CDPO Office, SatakarZunheboto.

¶21Shri Emlitenzuk, Sr. Supervisor, CDPO Office, Mangkol emba, Mokokchung.

¶22Shri Obed Magh, Sr. Supervisor, CDPO Office, Tseminyr, Kohima.

¶23ShrrChubamercn, Sr. Supervisor, CDPO Office, longchem, Mokokchung. Petitioners Versus The State of Nagaland, Representedby the Chief Secretary to the Government of Nagaland.

2.The Secretary, Department of Social Security &Welfare, Nagaland, Kohima.

¶3The Director, Department of Social Security &Welfarc, Nagaland, Kohima.

¶4Shri Moba Wenkhang, Probation Officer, Special Home & Observation Home, Pheima, D istrict, D rmaPur .

¶5Shri Venedule Vero, Research Officer, Director ate of Soci al W elf are, Kohima, Nagaland.

¶6Shri Rukevoto Ringa, - Superintendent Special Home & Observation, Pherrma, D istrict - D Lmaqlut .

¶7Shri Kelevinu Naleo, Chief Instructo r, Anganw adi Truining Centre, Drphub at, D i strict - DrmaPur . J L4

¶8Smti Anuo Longho, Child Development Proj ect Officer, ICDS Project, Chizami, District Phek.

¶9Shri Vezhotso Khamo, Probation Officer, Special Home & Observation, Pherima, D istrict - D imapur .

¶10Shri Kedozokho Peseyie, Child Development Project Officer, ICDS Project, Dhansirip ar, Dimapur, Nagaland 1 1. Shri Junito K. Zhimo,, Child Development Project Officer, ICDS Project, Satal<ha, District Zunheboto. Respondents. PRESENT HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR For the petitioners For the private respondents For the State respondent Date of hearing Date of Judgment : Ms. Z. Zhimomi, Advocate. :Mr. R, Iralu, Sr. Adv., L. Iralu, Advocate. :Mr. N. Mozhui, Advocates. :22.10.2022 :22.12.2023 JUDGMENTAND ORDER lc.A.vl The petitioner Nos. 1 to 4 were appointed as Supetvisors under the Directorate of Social Security and Welfare, Nagaland on temporary basis by an order dated 10th March, 2003. The petitioner Nos. 5 to 16 were also appointed as Superuisors under the establishment of the Directorate of Social Security and Welfare, Nagaland on temporary basis by an order dated lTth May,2003. The petitioner Nos. 17 and 18 were also appointed as Superuisors under the establishment of the Directorate of Social Security and Welfare, Nagaland on temporary basis by order dated 1't July, 2003. The petitioner Nos. 19 to 22 were also appointed as Superuisors on temporary basis by an order dated 1$ May, 2006 and the petitioner No. 23 was also appointed to the post of Superuisor on temporary basis by order dated 22"d Februdry,2008. It is peftinent to mention here that the appointment of the petitioner Nos. 1 to 18 were made against Co-terminus post created by Government letter dated 24.02.1997 .

¶2The respondent No.4 was appointed as Child Development Project Officer (CDPO in shoft) under the Social Welfare Department (CIass-II Gazetted) on contract basis for a period of l(one) year by an order dated 14th June, 2010. The seruice of the respondent No.4 was regularised by Notification dated 11th March,2015 on the approval of the Cabinet w.e.f 25.02.20t5. The respondent Nos. 5, 6 and 7 were appointed as CDPO on contract basis for a period of l(one) year by an order dated 7th June, 20LL. The seruices of the respondent Nos. 5 to 7 were regularised by Notification dated 17th October, 2016 w.e.f 26.09.20L6 on the approval of the Cabinet. The Notification further stipulates that the seruices rendered by the respondent Nos. 6 to 7 on contract basis prior to

26.09.2016 will be counted for increment, leave, pension and other seruice benefits except seniority. The respondent No. B was also appointed to the post of CDPO (Class-II Gazetted) on contract basis for a period of 2(two) years or till the post is filled up by direct recruitment through the Nagaland Public Service Commission (NPSC in short) by Notification dated 31* October, 2008. The seryice of the respondent No.8 was regularised by Notification dated 11th March,2015 w.e.f 25.02.20L5 i.e, the date of approva! of the Cabinet. lr) The respondent No.9 was appointed to the post of Probation Officer (Class-II gazetted) for a period of l(one) year or till the post is filled up by direct recruitment through NPSC by Notification dated 10h December, 20L2. The respondent No.10 was also appointed to the post of CDPO (Class-I) on contract basis for a period of l(one) year or till the post is filled up by direct recruitment through NPSC by Notification dated 9th April, 20L3. The respondent No.11 was also appointed as CDPO on contract basis for a period of l(one) year or till the post is filled up by direct recruitment through NPSC by Notification dated 28th May, 2013.

¶3The respondent Nos. 5, 6 and 7 were transferred as Research Officer, Directorate of Social Welfare, Superintendent, Special Home & Obseruation Home and Chief Instructor, Anganwadi Training Centre respectively vide a common Notification dated 31.08.2012. The said 3(three) posts of Research Officer, Superintendent, Child Instructor along with the post of Probation Officer were all CIass-II Gazetted and equivalent and transferable with the post of CDPO as per the Nagaland Social Security & Welfare Service( Revised ) Rules, L997 (the Rules of L997 in short).

¶4In the meantime, the Post of CDPO which was Class-II Gazetted was upgraded to Class-I Gazetted by a Notification dated 21.09.20L2. However, the post held by the respondent Nos. 5, 6 and 7 including the Probation Officer which are al! equivalent to CDPO were not accorded up-gradation at that point of time. Accordingly, the Director of Social Welfare by a communication dated 14.LL.20L2 wrote to the Secretary to the Government of Nagaland, Department of Social Welfare, Kohima proposing for up-gradation of the post of Research Officer, Superintendent, Special Home, Probation Officer Special Home and Chief Instructor, AWTC for up-gradation to that of Class-I inasmuch as these posts were equivalent to that of the post of CDPO. Thereafter, a Cadre Review Committee was constituted on 02.09.2013 and the recommendation of the Cadre Review Committee was fonruarded to the Secretary to the Government of Nagaland, Depaftment of Socia! Welfare, Nagaland by forwarding letter dated 28.04.20L4, wherein, the Cadre Review Committee had mentioned that up-gradation of the post of Superintendent, Research Officer, Chief Instructor and Probation Officer were overlooked due to oversight at the time of upgrading the post of CDPO. The Committee therefore recommended that the four posts tle also upgraded to ensure fairness and to restore parity that existed prior to up-gradation of post of CDPO to Class-I. s. Consequently, the Personnel and Administrative Reforms Depaftment, the Planning Department and the Finance Department accorded the approval on 11.08.2014, 28.09.2014 and 04.08.2015 for up-gradation of the posts held by the respondent Nos.S, 6 and 7. Thereafter the Committee on creation and up-gradation of posts in its meeting held on 06.11.2015 recommended to upgrade the post of Superintendent, Research Officer, Chief Instructor and Probation Officer from Class-II to Class-I in order to enable proper management of the cadre. fu)

¶6While the post up-gradation process was continuing, there was a series of litigation and on the basis of the Cabinet decision dated

06.05.2019, the Social Welfare Department issued two Notifications both dated 11th June, 2019, whereby, the post of Chief Instructor AWTC, the post of Superintendent, Research Officer and Probation Officer were upgraded to that of Class-I Gazetted, equivalent to the post of CDPO and also by fixing the seniority of the Officers holding the upgraded post, wherein, the private respondent Nos. 5, 6 and 7 were kept at the bottom of the seniority Iist of CDPO. t. The Depaftment of Social Welfare by a letter dated 20.03.2020, forwarded an inter-say seniority list of both Officers and Ministerial staffs of Social Welfare Department, wherein, the names of the respondent Nos. 4,5,6,7 and 8 appeared at Sl. No. 67,69,68,70 and 55 respectively (Class-I Gazetted) and the names of the petitioners appeared from Sl. No. 89 downwards.

¶8Heard Ms. Z. Zhimomi, learned counsel for the petitioners. Also heard Mr. N. Mozhui, learned counsel for the State respondents as well as Mr. R. Iralu, learned Senior counsel, assisted by Mr. L. Iralu, learned counsel for the private respondents.

¶9Ms. Z. Zhimomi, learned counsel for the petitioners submits that the seruices of the petitioners and the private respondents are strictly governed by the Rules of 1997, wherein, it is clearly provided that the Head of Depaftment shal! send the requisition to the NPSC through the Government in the forrn prescribed by the NPSC and the NPSC shall advertise the post specifying the terms and conditions. However, the Officia! respondents in absolute violation of the Rules of 1997 had i appointed the respondent Nos. 4 to 8 through back door and subsequently, regularised the contract seruices of the said respondents. She also submits that the State respondents had issued Office Memoranda dated 07.07.1976, 24.08.L994, 26.02.200L,

18.02.2004 and 13.01.2010, wherein, it was specifically provided that no direct recruitment shall be made by the Depaftments without publicly inviting applications in prescribed procedure. However, the official respondents in total contravention of the Rules of t997 and the Office Memoranda had appointed the private respondent Nos.4 to 11 without adveftisement and thereafter continued to regularise their seruices. The action of the official respondents in regularising the back door appointment of the respondent Nos. 4 to 8 is an abuse of Iaw. She submits that regularisation is not permissible in exercise of the executive powers of the Government in contravention of the Rules and any benefit bypassirrg the constitutional scheme cannot be perpetuated by passing of illegal Orders/Notifications.

¶10She also submits that after the up-gradation of the post of CDPO Class-II Gazetted to that of Class-I Gazetted, discrepancies arose with regard to the promotion channe! and accordingly the AII Nagaland Social Welfare Field Staff Association (ANSWFSEA in shoft) submitted representation to the respondent No.3 demanding for up-gradation of Superintendent Officer/ Welfare Inspector/ Child Guide Class-III Non-Gazetted to Class-II Gazetted. The Association fufther contended that the post of CDPO are being filled up to direct recruitment/ deputation/ contract basis by persons who have no knowledge and skills to man the child development and welfare programs for successful implementation of the ICDS Schemes and further, 50o/o of the post of CDPO and equivalent posts are reserved for Supervisors/Welfare Instructors/ Chlld Guide Instructor for promotion. However, the reserued quotas are being filled up by back door appointees on deputation/ contract basis and accordingly stagnation of the seruice of the Superuisors. It is submitted that by a Notification dated 29th September, 2016, the State respondents upgraded 60 (sixty)posts of Superuisors (Class-III Non-Gazetted) to Senior Superuisors (Class-II Gazetted) who have completed ten years and above continue seruice in the post of Supervisor. The said up-gradation was done on the basis of the recommendation made by the Post Creation and Up-gradation /. Committee. She therefr:re submits that the illegal appointment of the private respondents has blocked the promotion avenues of the petitioners and therefore, their appointment orders as well as regulation orders should be set aside and quashed. The learned counsel for the petitioners also placed reliance in the cases of M.p. State Coop. Bank Ltd., Bhopal -vs-Nanuram Yadav and others, reported in (2007) 8 scc 264; Renu and otherc -vs-District and Sessions Judge, Tis Hazari Courts, Delhi and others, reported in (ZOfl) ''' 14 SCC 50; Union Public Service Commission -vs-Girish Jayanti Lal Vaghela and others, repofted in (2006) 2 SCC 482; State of Manipur and others -vs-Y. Token Singh and others, reported in IZOOZ; 5 SCC 65; State of Uttar Pradesh and others -vs-Rekha Rani, repofted in 1ZOffl \ 11 SCC 44U State of Bihar and others -vs-Chandreshwar Pathak, reported in (2014) 13 SCC 232; K. Shekar -vs-V. Indiramma and others, repofted in (2002) 3 SCC 586; B. Thirumal -ys-Ananda ,, Sivakumar and others, repofted in (2014) 16 SCC 593; Nagendra lti /r. Chandra and others -vs-State of Jharkhand and others, reported in

(2008) 1 SCC 798; Binod Kumar Gupta and others -vs-Ram Ashray Mahoto and others, reported in 1zOO5) 4 SCC 209; State of Karnataka and others -vs-M.L. Kesari and others, reported in (2010) I SCC 247 and the case of Neidilhou Angami and orc. -vs-State of Nagaland and ors., repofted in 2009 (3) GLT 692.

¶11Mr. N. Mozhui, learned counsel for the Socia! Welfare Depaftment submits that the respondent Nos. 9, 10 and 11 are still working on contract basis after their seruices were extended by various orders and the post held by the respondent Nos. 10 and 11 have already been requisitioned to the NPSC for direct recruitment. He submits that the appointment of the private respondents were made under the direct recruitment quota and therefore, such appointment does not infringe into the promotional quote i.€, the promotional avenues of the petitioners. He fufther submits that after the up-gradation of the post of Supervisors to Senior Superuisors, the Rules of t997 is yet to be amended and therefore, no post of Senior Superuisor figures in the Rules of t997. Drawing the attention of this Court to the Judgement and Order dated 07.06.20L8 passed in WP(C) 183(K)2017, he submits that this Court had already made an obseruation that there is no provision in the Rules of t997 for promotion of Senior Supervisors to the post of CDPO. He therefore submits that as the ) appointment of the private respondents does not infringe into the \ promotional quota of the petitioners, they have no locus standi to challenge the appointment orders/regularisation orders of the private respondents and therefore there is no merit in the writ petition and the same deserues to be dismissed. ll ts L2. Mr. R. Iralu, learned counsel for the private respondents while endorsing the submissions made by Mr. N. Mozhui, learned counsel for the Social Welfare Department submits that the President and General Secretary of the Petitioner's Association along with the Association filed the writ petition being WP(C)1247(K)120t6 challenging the appointments of the respondent Nos. 5, 6 and 7. However, the said writ petition was dismissed by judgment dated

06.06.2018, on the ground that the petition filed by the Association was not maintainable. The petitioners being members of the said Association knew the filing of WP(C) 1247(K)12016 and as the same was also dismissed, they are now barred by the principle of constructive res judicata to file the present writ petition against respondent Nos. 5, 6 and 7. It is also submitted that the petitioners have no locus to challenge the appointment of the private respondents inasmuch as the appointment made was against the direct recruitment quota and as the petitioners were already serving as Superuisors, they required 7(seven) years of continue service to be considered for eligible for promotion to the post of CDPO. However, none of the petitioners were in the zone of consideration as they did not have the requisite 7(seven) years of continuous seruice as Superuisors. He also submits that the respondents were appointed as early as from the year 2010 onwards and making a challenge to the appointment of the private respondents at this stage is hit by the principles of delay, laches, and acquiescence. It is further submitted that the petitioners are holding the post of Superuisor (Class-II), whereas, the private respondents are Class-I Gazetted Officers and therefore, challenge being made to the appointment of the petitioners is an abuse of the t2 process of Court and therefore, the writ petition deserues to be dismissed. The learned Senior counsel for the private respondents also submits that the post of CDPO is responsible for the implementation of the Centrally Sponsored Scheme (CSS) namely, Integrated Child Development Scheme (ICDS) under the Ministry of Women and Child Development, Government of India. The said Ministry has issued a framework for the effective implementation of the ICDS and in that respect, the respective States have been allowed to fill up vacant post on contract basis and therefore, there is nothing wrong in the appointment of the private respondents as CDPOs, Project Officers etc,. Accordingly, the present writ petition has no merits and the same deserues to be dismissed. The learned counsel for the respondent Nos. 4, 5, 6,7, 8, lti and 11 has also placed reliance to (i) ArR 1965 sc 1lso [Devilal Modi - vs-Sales Tax Officer, Ratlam and othersl (ii) (2009) 10 SCC 273 [Ramchandra Dagdu Sonavane (Dead) by LRS. and otherc -vs-Vithu Hira Mahar (Dead) by LRS. and othersl (iii) (2017) 15 SCC 333 [x.s. Varghese and others -vs-Saint Peter's and saint Paul's Syrian ofthodox church and othercl (iv) (2007) 8 SCC 329 [Saro5a -vs-Chinnusamy

(Dead) by LRS. and anotherl (v) (2013) 5 SCC 252 lxatinsa Minins Corporation -vs-Union of India and othercl (vi) (2008) 10 SCC 187 [fnfA Industries Limited and another -vs-Grasim Industries timited]

(vii) 198a SCC Online Bom 66 [namrao Dayanu Pawar and othens -vs-Shankar Bhau Alrekar and anotherl (viii) (1998) 3 SCC 573 [r.r. Modi - - vs-K.N, Modi and othersl (ix) (2008) 1 SCC 560 [Uaayami Evam Khadi Gramodyog Welfare Sanstha and another -vs-State of Uttar Pradesh and othersl (x) 202L SCC On Line SC lL94 [x. layaram and Otherc -vs-Bangaalore Development Authority and Othersl (xi) (20t4) 4 SCC 108 l3 h )^ [Chennai Metropolitan Water Supply and Sewerage Board and others - vs-T.T. Murati Babul (xii) 1980 Supp SCC 449 [Roshan Lal and otherc - vs-International Airport Authority of India and others] (xii) (2003) 2 GauLR 28 [t-ily rep & Ors. -vs-State of Nagaland & Ors.] (xiii) (2020) 5 SCC 732 [Chander Mohan Negi and others -vs-State of Himachal) Pradesh and others] (xv) (2020) 12 SCC 87 [Strripal Bhati and another - vs-State of Uttar Pradesh and othersl (xvi) (2006) 4 GLT 503 [Smt. Baphindalin Giri, Chief Judicial Magistrate, Shillong and otherc -vs-State of Meghalaya, represented by the Additional Chief Secretary to the Govt. of Meghalaya Cum Special Secretary Law (A) Depaftment and othersl

(wii) 2013 SCC On Line P&H 6859 [union Territory, Chandigarh and others -vs-Shri Arun Kumar and othersl

¶13I have considered the submission made by the learned counsel for the pafties. The respondent Nos.4 to 11 were appointed by different Notification from the year 2010 up to May, 2013. In the meantime, some attempts were made by the petitioners'Association to challenge the appointments of the private respondent Nos. 5, 6 and 7 by way of filing WP(C)1247(K)120L6, which was however dismissed by order dated 06.06.2018 on the ground of maintainability. No appeal was filed against the said judgment dated 06.06.2018, passed in WP(C)1247(K)12016 and therefore, in the considered opinion of this Court, the said judgment dated 06.06.2018 has attained finality. - t4. This Couft has also noticed that the private respondent Nos. 5, 6 and 7 had filed WP(C)/83(K) 12017, whlch was disposed of by order dated 07.06.2018, wherein, this Court had made an obseruation. ' that there is no provision in the Rutes of 1997 for promotion of Senior i r4 yq Superuisors to the post of CDPO and therefore, any proposal made by the State Government for promotion of the Senior Superuisors to the post of CDPO shall be acted upon only if the Rules of t997 permits such action. What this court has noticed is that the Rules of 1997 is yet to be amended till date.

¶15This Court has also considered t'The Broad Framework for Implementation" for ICDS Mission issued by the Ministry of Women and Child Development, Govt. of India, wherein, at Clause 2.2.1 (ii) (c) it is stated that for the success of ICDS programs and to overcome the difficulty and as a temporary and interim arrangement, the Stale Government would have powers to fill up vacant post through job contract from outsource/placement agencies on a temporary basis till such time the regular posts are filled to avoid any interruption in the services. The States/Ul s may also explore the possibility of filling up such vacancies on deputation basis on temporary basis.

¶16It is an undisputed fact that all the petitioners were appointed as Superuisors by various orders from the year 2003 ,p_!.-o. year 2008. What is to be noted is that they were appointed as direct recruits to the post of Superuisors Class-III post Gazetted in different batches. The private respondents were appointed as CDPO Class-II Gazetted from the year 2010 onwards. Schedule-Il to the Rules of t997 provides that for Superuisors to be eligible to be promoted to the post of CDPO and other equivalent post requires 7(seven) years of continuous seruice in that grade provided the Officials have undergone training in their respective subject matters. Further, Rule 5(2) provides-that for filling up the post of CDPO and any other equivalent Class-II l5 Gazetted post, the same shall be done by way of 50o/o by direct recruitment and 50o/o by departmental promotion. In the case in hand, what is noticed is that if the petitioners are to be promoted to the post of CDPO, they will have to come under the 50o/o promotional quota. However, it is seen that the private respondents were appointed against direct recruitment quota which becomes more evident by thd fact that the post held by the respondent Nos. 10 and 11 has been requisitioned to the NPSC for filling up by way of direct recruitment. In that view of the matter, this Court is of the considered opinion that the petitioners have no locus to challenge the appointment of the private respondents by way of the present writ petition. Another important aspect of the matter is that the challenge made to appointment of the private respondents as CDPO and other equivalent post is madg belatedly and accordingly, the actions of the petitioners are hit by the principles of delay, laches and acquiescence. L7. In view of the discussions made hereinabove, this Couft is of the considered opinion that there is no merit in the present writ petition and the same is accordingly dismissed. No costs. h .IUDGE V1-a/i44lPil.l