STATE OF NAGALAND AND ANR.versusTOULVI KIBAMI AND ANR.

A                    STATE OF NAGALAND AND ANR.
                                        V.
                         TOUL VI KIBAMI AND ANR.

                              OCTOBER 16, 2003

B                  [V.N. KHARE, CJ. AND S.B. SINHA_, J.]

         Review-Maintainability of-Subsequentevent-High Court-Letters
    Patent Appeal-Judgment by Letters Patent Bench directing to amend
    Nagaland Engineering Service Rules, so as to include in eligibtlity criteria
    cases of exceptionally meritorious persons who were diploma holders for
C   promotion to the post ofAdditional ChiefEngineer-Government amended
    the Rules and promoted the officer-Review petition filed-Division Bench
    allowing the review and setting aside the earlier judgment under review-
    Held, in view ofthe subsequent event that had taken place consequent upon
    the judgment of the Division Bench, the review petition was not
D   maintainable-In fact the judgment of the Letters Patent Bench was acted
    upon and it stood exhausted-The review petition was futile, and ought not
    to have been entertained and decided on merits.

         Service Law :

E         Nagaland Engineering Service Rules, I 977 (Class I & II)-Additional
    ChiefEngineer-Promotion to-On directions ofHigh Court rules amended
    so as to include in eligibility criteria cases of exceptionally ·meritorious
    diploma holders for promotion as Additional Chief Engineer-Officer
    accordingly promoted-Later, review petition allowed andjudgment under
F   review set aside-Held, review petition was not maintainable-Impugned
    judgment of High Court set aside-However, on merits, all questions of
     law relating to eligibility left open.

         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2533 of
    1998.
G
         From the Judgment and Order dated 8.1.98 of the Gauhati High Court
    at Assam in Review Application No. 31/97 in W.A. No. 142 of 1993.

                                      WITH

H        C.A. No. 2536 of l 998.
                                        862



                                                                                   .   .'
                      STATE v. TOUL VI KIBAMI                          863
    S. Ravindra Bhat, Naveen R. Nath, Sanjay Sharawat, Ms. Hetu Arora, A
Ms. Lalit Mohini Bhat, Vijay Kumar and Ms. V. Mohana, for the
Appellants.

     Vijay Hansaria, Sunil Kumar Jain and Jayesh K.U. for the Respondents.

     The following Order of the Court was delivered :
                                                                             B

      In the State of N agaland, the promotion of Superintending Engineer
to the post of Additional Chief Engineer in the Department of Public Health
and Engineering is governed by the service rules known as Nagaland
Engineering Services Rules, 1977 (Class I & II) (hereinafter referred to as C
"the rules"). The Respondent No. 2 in C.A. No. 2533/1998 (and appellant
in C.A. No. 2536/1998) is a diploma-holder and at the relevant time was
working as officiating Superintending Engineer. On 26.3 .1991, the
Government ofNagaland promoted respondent No. 2 as Additional.Chief
Engineer. This promotion was challenged by respondent No. 1 who is a D
degree-holder by means ofa petition under Article 226 of the Constitution
on the ground that respondent no. 2 was not eligible for being promoted
to the post of Additional Chief Engineer as the said post is to be filled up
 100 per cent from amongst the degree-holders. This contention of respondent
No. 1 was accepted by the learned Single Judge of the High Court. E
Consequently, the promotion ofrespondent No. 2 was set aside. Aggrieved,
the State of Nagaland preferred a letters patent appeal which was allowed
and order and judgment of the learned Single Judge was set aside. The
Division Bench while allowing the appeal directed the State Government
to decide whether the diploma-holders could also be promoted to the post
of Additional Chief Engineer under the relevant Rules on the basis of they F
having rendered meritorious service. It is not disputed that consequent
upon the direction of the High Court, the Government took a decision in
the year 1997 whereby the Government appropriately amended the relevant
Ruler on the basis of they having rendered meritorious service. It is not
disputed that consequent upon the direction of the High Court, the           G
Government took a decision in the year 1997 whereby the Government
appropriately amended the relevant rules and brought in the line with the
original approved Rules so as to include the reference to eligibility of cases
of exceptionally meritorious person who are diploma-holders for promotion
to the post of Additional Chief Engineer with retrospective effect i.e. from fl
                                                                                       ,,


    864                 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A 12.9.1996. In the view of the matter, respondent No. 2 was promoted to
    the post of Additional Chief Engineer. In between time, respondent No.
    I filed an application before the Division Bench for review of the order
    and judgment dated 4.9.1995. The Division Bench allowed the review                      •
                                                                                            '


    petition and dismissed the appea!. It is against the said judgment and order
B   of the High Court dated 8.1.1998, the appellants are in appeal before us.

          Having heard learned counsel for the parties, we are of the view that
    in view of the subsequent events that had taken place consequent upon the
    judgment of the Division Bench, the review petition filed by respondent
    No. I was not maintainable. In fact the judgment of Letters Patent Bench
C   was acted upon and it stood exhausted and the review petition was futile.
    Under such circumstances, the review petition ought not to have been
    entertained and decided on merits.

           For the aforesaid reasons, we set aside the order and judgment under
D challenge. The appeals are allowed. However, it will be open to respondent
    No. I to challenge the promotion of respondent No. 2 afresh by a separate
    petition under Article 226 of the Constitution of India if he is so advised.
    In case such a petition is filed, it shall be entertained and decided on merits.
    We leave all questions of law open to be decided in that case.

E          No costs.

    R.P.                                                         Appeals allowed.