Holding

Encadrement of posts is a policy matter not amenable to judicial interference, mere eligibility does not confer a right to promotion or seniority, and the appellants are not entitled to seniority over the transferred officer.

Summary

The appellants, who were Class II officers in the Nagaland Economics and Statistics Service, challenged the seniority of a fellow officer (respondent No. 3) who had been transferred from the PWD and Housing Department to their cadre through an encadrement (post‑merger) order in 1992‑93. They claimed that, being eligible for promotion to Assistant Director in 1990, they should have been deemed promoted before the transferred officer and thus enjoy seniority over him. The High Court’s Single Judge had granted this relief, but the Division Bench set it aside, holding that the encadrement was a policy decision and that eligibility alone does not create a right to promotion or seniority. The Supreme Court affirmed the Division Bench, noting the appellants’ inordinate delay of seven‑eight years and reiterating that the merger of posts is a matter of administration not subject to judicial interference. Consequently, the appeal was dismissed and the respondents’ seniority upheld.

Issues considered

Whether the encadrement (merger) of a post from one department into another cadre is a policy decision beyond judicial review.
Whether eligibility for promotion confers a legal right to promotion and seniority over a transferred officer.
Whether the seven‑to‑eight‑year delay in filing the writ petition bars the appellants from obtaining relief (laches).
Whether the validity of the Government Order effecting the encadrement can be challenged in court.
Whether the seniority list can be altered to give seniority to the appellants over the transferred officer.

Subjects

service lawencadrementpost mergersenioritypromotion eligibilitydelaylachesadministrative policyjudicial review

Judgment

A
[2009] 11 S.C.R. 118

I. CHUBA JAMIR & ORS. +
..
v.
THE STATE OF NAGALAND & ORS.
(Civil Appeal No. 4486 of 2009)
JULY 17, 2009
B
[TARUN CHAITERJEE AND AFTAB ALAM, JJ.)

Service Law - Encadrementlmerger of post - Affecting
seniority - Employees in the cadre seeking seniority over the
c employee whose post was merged - Ground taken that they
were eligible for promotion to the post before the date of
merger - Held: Employees in the cadre not entitled to
seniority over the employee whose post was merged - Mere
eligibility does not confer right to promotion - Encadrement,
D being a policy decision, does not warrant interference ,by the
court - On facts, the challenge was delayed - Nagaland
.
Economics and Statistics Service Rules, 1973. '
Appellant Nos.1 and 3 and predecessor of appellant
No. 2 were appointed as directed recruits as Class II
E
officers in State Economics and Statistics Service in the
year 1984. 3rd respondent was appointed as Statistician-
cum-Economist (Class I officer) in the department of PWD
and Housing in the year 1988. In the year 1990, though
the post of Assistant Directors (Class I) in the department · )

F of Economics and Statistics fell vacant, the appellants
were not considered for promotion. Respondent No.3
made representation for his transfer alongwith the post
to the State Economics and Statistics Service. The post
of Statistician-cum-Economist under department of PWD
G and Housing was merged with Economics and Statistics
'>
Service. Accordingly, respondent No.3 was transferred to
the department of Economics and Statistics in the cadre ~ ,_
of Assistant Director. However, his seniority in the cadre

H 118
I. CHUBA JAMIR & ORS. v. STATE OF NAGALAND & 119
• ORS.
·~ was to be counted from the year 1992. In the year 1996 A
respondent No.3 was promoted as Deputy Director in
officiating capacity. Appellants were also promoted to the
post of Assistant Directors on the same date. In a
tentative seniority list, respondent No.3 was shown
above the appellants. Appellants challengeed B
respondent's seniority over them. Single Judge of High
Court disposed of the writ petition in favour of the
appellants holding that they should be deemed to have
been promoted to the posts of Assistant Director
notionally one day prior to the date on which respondent c
No.3 was appointed as Assistant Director. In intra-court
appeal, Division Bench of High Court held that appellants
were not entitled to seniority over re.spondent No.3.
Hence the present appeal.

Dismissing the appeal, the Court D

HELD: 1.1. The present case 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 Economi'cs and E
Statistics 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 warrant any
interference by the Court. [Para 18] [129-G-H; 130-A] F

Vinay Kumar Verma and Ors. vs. State of Bihar and Ors.
(1990) 2 SCC 647 and S.P. Shivprasad Pipal vs. Union of
India and Ors. (1998) 4 sec 598, relied on.

1.2. The validity and legality of the Government Order G
and the Notification effecting the encadrement of the post
held by respondent no.3 in the PWD and Housing
Department with the Economics and Statistics Service
does not seem to have been squarely challenged before
H
120 SUPREME COURT REPORTS [2009) 11 S.C.R.

A the High Court. 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 Economics and Statistics Service
B 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 Single Judge accepted the validity
of the encadrement and yet proceeded to direct the
c 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.
0
It is elementary and well settled that mere eligibility does
not confer any right for promotion. The direction of the
Single Judge was unsustainable. The Division Bench
was right in setting aside the order of the Single Judge.
E [Para 19] [130-C-G]

2. 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
F 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
G and validity, of the reliefs granted to them by the single
Judge. [Para 17] £129-E-F]

R.S. Deodhar vs. State of Maharashtra AIR 1974 SC
259; Hirday Narain vs. Income Tax Officer, Bareilly AIR 1971
SC 33; L. K. Verma vs. HMT Ltd. and Anr. (2006) 2 SCC 269
H
I. CHUBA JAMIR & ORS. v. STATE OF NAGALAND & 121
ORS.
and Kanak (Smt) and Anr. vs. U.P. Avas Evam Vikas A
Parishad and Ors. (2003) 7 SCC 693, distinguished.

State of U.P. vs. Rafiquddin and Ors. AIR 1988 SC 162,
referred to.

Case Law Reference: B

AIR 1988 SC 162 Para 11 referred to

AIR 1974 SC 259 Para 13 distinguished

AIR 1971 SC 33 Para 14 distinguished c
(2006) 2 sec 269 Para 15 distinguished

(2003) 1 sec 693 Para 16 distinguished

(1990) 2 sec 647 Para 18 relied on
D
1" (1998) 4 sec 598 Para 18 relied on

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4486 of 2009.

From the Judgment & Order dated 20.12.2004 of the High E
Court of Guwahati, in Writ Appeal No. 347 of 2000.

P.K. Goswami, Rajiv Mehta and A. Henry for the
Appellants.
F
K.B. Sinha, D. Stephen K. Yanthan and Rajesh Singh for
the Respondents.

The Judgment of the Court was delivered by

AFTAB ALAM, J. 1. Leave granted. G
2. Appellant no.1, I. Chuba Jamir was writ petitioner no.2
~ ~
before the High Court, appellant nos. 2 to 214 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
H
/
122 SUPREME COURT REPORTS [2009] 11 S.C.R.

A 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
B
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
c 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
D deceased) were all appointed as direct recruits, through
Nagaland Public Service Commission as Statistical Officer ·r
(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
E 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
F 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
G 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
H
(
I. CHUBA JAMIR & ORS. v. STATE OF NAGALAND & 123
ORS. [AFTAB ALAM, J.]

~ undertaking in writing that he would not claim the benefit of past A
service for the purpose of seniority. On Decen\ber 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 B
Engineering Cell, under the department of Works and Housing
Nagaland, created on 17 .3.1980, with the Nagaland Economics
J-
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 c
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
D
Director (EIS) would be counted frorn 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.
E
6. Later on in supersession of this order a Notification was
issued on October 27, 1993 that reads as under:

"NOTIFICATION
F
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 G
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 lnnerline
compensatory Allowance 25% of the basic pay and all
other allowances as are admissible\mder the Rules issued H
124 SUPREME COURT REPORTS (2009) 11 S.C.R.

A from time to time w. e. f. 13.8.1992 subjected to the t
followingcond itions :-

1. His seniority in the new cadre shall be counted w.e.f.
13.8.1992 only.
B 2. His pay in the new cadre shall be fixed under the
provisions of F.R. 22-C.
-lo
3. Shri Y.S. Ovung has been posted to the Department
of Works and Housing as Assistant Director (EIS)
c with effect from 21.12.1992.

4. This issues with the concurrence of the Governor's
Execl.(tive Council vide Agenda No.8 of No.CAB-
34/92dated 13.8.1992 and clearance of P and A.R.
vide their U.O. No.2826 dated 6.10.1993."
D
7. On August 6, 1996 respondent No.3 was promoted to t
the post of Deputy Director in officiating capacity. On the same
date appellants 1 and 3 and writ petitioner no.3 were promoted
as Assistant Directors. On October 26, 1998 a tentative
E 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
• I

F 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
G 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
H
I. CHUBA JAMIR & ORS. v. STATE OF NAGALAND & 125
ORS. [AFTAB ALAM, J.]

judgment and order dated July 14, 2000 with a number of A
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 B
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 c
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. D
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 oh to hold that vacancies in the post of
Assistant Director had arisen in the year 1990 itself when the E
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 F
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 infor-se seniority G
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 H
126 SUPREME COURT REPORTS [2009) 11 S.C.R.

A 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
B 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
c 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
D 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
E 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
F 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
G 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 -
H the promotion. Nevertheless, they were denied promotion and
I. CHUBA JAMIR & ORS. v. STATE OF NAGALAND & 127
ORS. [AFTAB ALAM, J.]
respondent no.3, who was in another government department, A
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 8
recruitment under Rule 5 which earlier provided as follows:-

I. 5. "Method of recruitment:
(1) Recruitment to the service shall be made by any or
all of the following c
(a) by direct recruitment

(b) by promotion of persons of lower gra9e and

(c) by permanent/temporary transfer or selection of D
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
E
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:- F

"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 G
of the service" had a legal connotation and it would include only
.J 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 H
128- -.-·-SUPREME COURT REPORTS (2009] 11 S.C.R.

A 1988 SC 162 (172). He submitted that since the appointmenU
promotion of respondent No.3 on the post of AssistantDirector
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
B 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 peceased writ petitioner on grounds of delay
and laches. He submitted that the learned single Judge of the
c High Court had entertained and adjudicated upon their claims
on merits and hacl 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
D 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
E 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
F 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. De6dhar certainly does not
G ~-
lay down an inviolable rule that Ol]Ce 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 wr1t
.petitioner{s) and the consequences of granting the reliefs
sought for at the highly belated stage. \ ·
H
I. CHUBA JAMIR & ORS. v. STATE OF NAGALAND & 129
..... ORS. [AFTAB ALAM, J.]
14. Hirday Narain vs. Income Tax Officer, Bareilly, AIR A
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.
B
15. L. K. Verma vs. HMT Ltd. and Another, (2006) 2 SCC
269, was a case of removal from service of an individual
i>
employee and the issue before the Court (in paragraph 21 of
the judgment) was not delay or laches but the existence of
alternative remedy.
c
16. Kanak (Smt) and Another vs. UP. Avas Evam Vikas
Parishad and Others, (2003) 7 sec 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. D
17. Oh 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 E.
important consideration. This aspect of the matter was also
brought to the notice of the Single Judge but he proceeded with
the matt~r without saying anything on that issue, one way or the
1,..-~

.; other: It was, therefore, perfectly open to the Division Bench to
take into consideration the conduct of the appellants-writ F,
petitioners and the consequences, apart from t~e 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
G
brought to the post of Assistant Director in the E and S Service
J 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 peld by him in the department of
PWD and Housing with the post of Assistant Director in the E H
130 SUPREME COURT REPORTS [2009] 11 S.C.R.
....
A and S Service of the State. In the interest of administration it t

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
8 SCC 647; S.P. Shivprasad .,Pipal vs. Union of India and
Others, (1998) 4 sec 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
c and Housing Department with the E and S Service d~es 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
D 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 g~wernment functionary.
But the learned Single Judge accepted the validity of the·
E 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
F 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
G aside the order of the learned Single Judge.
~
20. In the light of tt)e discussions made above, we find no \

merit in this appeal. It is accordingly di$missed but with no order > ...
as to costs.

H N.J. Appeal dismissed.