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Allem Longkumer v. Medokerhe Terhuja And Others
Factual and Procedural Background
The appellant was appointed as a Compiler on 25-11-1975 through the Public Service Commission in the District Gazetteer Unit. By a notification dated 31-10-1974, posts in that Unit were transferred from the Education Department to the Department of Art & Culture. On 1-11-1978 the appellant was sent on deputation within the same Department to serve as a District Cultural Officer.
Because no eligible departmental candidates were available and owing to the appellant’s prior experience and higher pay scale, the Director of Art & Culture recommended his absorption and regularisation in the deputation post. The Government initially regularised him “with immediate effect” by order dated 19-10-1982. At the Department’s further request, the Cabinet later approved retrospective absorption from 1-11-1978, and a Gazette notification to that effect was issued on 13-07-1984, expressly superseding the 1982 order.
The two respondents, who became District Cultural Officers after 1-11-1978, filed a writ petition in 1991 challenging the 1984 notification. The High Court allowed their writ, relying on a Government notification dated 12-08-1975 and an office memorandum dated 27-01-1967 dealing with seniority on absorption. The present appeal is against that High Court decision.
Legal Issues Presented
- Whether the appellant could lawfully be absorbed and granted seniority as District Cultural Officer with retrospective effect from 1-11-1978 despite Government instructions that seniority on absorption counts only from the date of absorption.
- Whether the High Court was correct in entertaining and upholding the 1991 challenge to the 1984 notification after a delay of seven years.
Arguments of the Parties
Appellant's Arguments
- The Cabinet took a specific, bona fide decision—based on departmental recommendation and special circumstances—to absorb the appellant with effect from 1-11-1978; that decision is neither arbitrary nor unreasonable.
- The 12-08-1975 notification and the 27-01-1967 office memorandum, which govern absorption from one department to another, are inapplicable because the appellant remained within the same Department but shifted cadre.
- The writ petition was filed after an unexplained delay of seven years and should therefore have been dismissed.
Respondents' Arguments
- Under the 12-08-1975 notification and the 27-01-1967 office memorandum, an employee absorbed on deputation acquires seniority only from the date of absorption; the appellant’s seniority should therefore run from 19-10-1982, not 1-11-1978.
- The retrospective regularisation unfairly prejudices officers appointed after 1-11-1978, including the respondents.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court noted that the notification of 12-08-1975, relied on by the High Court, addresses seniority where an employee is absorbed into another department. Since the appellant’s absorption occurred within the same Department but a different cadre, the notification did not strictly apply. Although an earlier office memorandum dated 27-01-1967 contains a similar seniority rule, that memorandum also contemplates Cabinet approval for exceptions.
The Cabinet had expressly approved the appellant’s absorption with effect from 1-11-1978, after the Department documented the lack of eligible promotees and the appellant’s superior qualifications. The Court held that this constituted a special, bona fide decision that could not be characterised as arbitrary or unreasonable.
Additionally, the respondents challenged the 1984 notification only in 1991. The Court viewed this seven-year delay as an additional ground for refusing relief, observing no justification for entertaining such a belated claim.
Holding and Implications
Appeals Allowed; High Court order set aside.
The appellant’s absorption and seniority as District Cultural Officer stand effective from 1-11-1978. The immediate consequence is the restoration of the appellant’s position in the departmental seniority list and validation of his subsequent promotions. The judgment turns on the unique facts and a specific Cabinet decision; it sets no new general precedent beyond reaffirming that long-delayed challenges and departmental deviations expressly approved by the Cabinet may be sustained when justified by special circumstances.
Order
1. The appellant after regular selection through the Public Service Commission, was holding the post of Compiler under the District Gazetteer Unit with effect from 25-11-1975.
2. The posts in the District Gazetteer Unit which were originally attached to the Education Department were detached from that Department and were attached to the Department of Art & Culture by the notification of 31-10-1974.
3. The appellant was sent on deputation to the post of District Cultural Officer in the Department of Art & Culture (i.e, the same Department) w.e.f 1-11-1978. A proposal was thereafter made by the Director of Art & Culture for absorption of the appellant in the post of District Cultural Officer. The proposal set out that prior to his appointment as District Cultural Officer, the appellant had worked as a Compiler on a higher scale than that of an Investigator, the latter being the normal feeder post from which promotions are made to the post of District Cultural Officer. In view of the fact that the Department was in need of a District Cultural Officer for which there were no departmental candidates available for promotion, and in view of the quality of service of the appellant, it was recommended that he should be absorbed and regularised with effect from the date of his appointment as District Cultural Officer.
4. Pursuant to this recommendation by an order of the Government of Nagaland dated 19-10-1982, the appellant was regularised in the post of District Cultural Officer with immediate effect. However, on the appellant's further representations which were supported by recommendations from the Department, a proposal was put before the Cabinet for absorption of the appellant against the post of District Cultural Officer with effect from the date he was appointed, i.e, 1-11-1978. This proposal was accepted by the Cabinet. Pursuant to this decision, a notification dated 13-7-1984 was published in the Gazette, Government of Nagaland, approving the absorption of the appellant as District Cultural Officer, Department of Art & Culture, Nagaland, with effect from 1-11-1978. The notification stated that this superseded the departmental notification of 19-10-1982.
5. Both the respondents were appointed as District Cultural Officers subsequent to 1-11-1978. For the first time, in 1991 they challenged the notification of 13-7-1984 regularising the appellant with effect from 1-11-1978, by filing a writ petition. Apparently, the occasion for the writ petition was the promotion of the appellant to the post of Deputy Director and the publication of the provisional seniority list. Prior thereto, the appellant had also been promoted as Assistant Director. The High Court has upheld this challenge only on the ground that under a notification of 12-8-1975, when a person is on deputation from one department to another, if he is absorbed in the department where he is on deputation, his seniority will count from the date of his absorption. There is an earlier office memorandum of 27-1-1967 relating to absorption from one post, cadre or service to another being governed by a similar provision. Such absorption is subject to Cabinet approval. In the case, however, of the appellant, there was an express Cabinet decision taken, looking to the special circumstances in which the appellant had been appointed as District Cultural Officer on 1-11-1978, absorbing him with effect from 1-11-1978. This decision had been notified and published in the Government Gazette as far back as in July 1984. We do not see why a challenge to the regularisation of the appellant with effect from 1-11-1978 should have been entertained after a lapse of 7 years from the date of the notification.
6. Undoubtedly, the notification of 12-8-1978 on which the High Court relies has dealt with the manner of fixing seniority of employees who are absorbed in another department. Strictly, the notification does not apply as the appellant's absorption is in the same Department in a different cadre. But there appears to be an earlier office memorandum of 27-1-1967 providing that in the case of absorption in any post, cadre or service, seniority will be from the date of absorption. The procedure for Cabinet approval will continue. Nevertheless, if the Cabinet has taken a specific decision, looking to the special circumstances in a given case, to absorb the appellant w.e.f 1-11-1978, and that decision is backed by appropriate recommendation from the department concerned setting out all the circumstances in which the proposal is made, the decision cannot be called arbitrary or unreasonable.
7. The Cabinet decision in the instant case to absorb the appellant with retrospective effect from 1-11-1978 was taken in the light of special circumstances as set out in the departmental recommendation. This was a bona fide decision which cannot be challenged after a lapse of 7 years, looking to all the facts and circumstances.
8. We, therefore, allow the appeals and set aside the impugned order of the High Court. There will, however, be no order as to costs.
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