REPORTABLE

IN THE 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

J U D G M E N T

AFTAB ALAM,J.  

1. Leave granted.  

2. 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.

3. 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.  

4. 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.  

On July 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.  

5. 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 immediate effect.  

The  order  further  stated  that  it  was  issued  with  concurrence  of  the  Governor’s  

Executive Council vide Agenda No.8 dated August 13, 1992.

6. Later on in supersession of this order a Notification was issued on October  

27, 1993 that reads as under:

“NOTIFICATION

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.  13.8.1992 subjected to the following conditions:-

1. His  seniority  in  the  new cadre  shall  be  counted  w.e.f.  13.8.1992  only.

 2. His pay in the new cadre shall be fixed under the provisions of F.R.  

22-C.

3. Shri Y.S. Ovung has been posted to the Department of Works and  Housing as Assistant Director (E/S) with effect from 21.12.1992.

4. This  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.”  

7. 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.  

Further,  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.    

8. 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 follows:   

“The 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.  Obviously, the private respondents cannot claim seniority over the appellant  who had joined as Assistant Director much earlier in point of time.”  

9. 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 promotion.  

Nevertheless, 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.  

10. Mr. Goswami then referred to the method of recruitment under Rule 5 which  

earlier provided as follows:-

5. “Method of recruitment:

(1) 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 Government”.

Clause (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.

11. 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 seniority”.

Learned Counsel submitted that the expression “all members of the service”  

had a 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.

12. 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.

13. 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.  

14. 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.

15. 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.

16.   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 alternative remedy.   

17. 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.

18. 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).  

19.  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.   

20. 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]

New Delhi, July 17,  2009.

ITEM NO. 1-A           ( For  Judgment )

           COURT No.4     SECTION  XIV

              S U P R E M E   C O U R T   O F   I N D I A                            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                        judgment today.  

                                                                                For Appellant(s) Mr. Rajiv Mehta, Adv.

   For Respondent(s) Mr. Rajesh Singh, Adv.

              --- Leave granted.

Hon'ble  Mr.  Justice Aftab Alam pronounced the judgment of  the Bench  

comprising Hon'ble Mr. Justice Tarun Chatterjee and his Lordship.

The appeal is  dismissed with no order as to costs in terms of  the signed  

judgment which is placed on the file.

[ S. Thapar ]     PS to Registrar

   [ Madhu Saxena ]    Court Master

[ Signed reportable judgment is placed on the file ]