- (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 25th November, 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 Notification of 31st October 1974. 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. 1st of November, 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 fo- which there were no departmental candidate 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. Pursuant to this recommendation by an order of the Government of Nagaland dated 19.10.82 the appellant was regularised in the post of District Cultural Officer with immediate effect. However, on the appellant's further representation 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. 1.11.73. This process was accepted by the Cabinet. Pursunt to this decision, a Notification dated 13.7.84 was published in the Gazette, Goovernment of Nagaland approving the absorption of the appellant as District Cultural Officer, Department of Art & Culture, Nagaland, with effect from 1.11.78. The Notification stated that this superseded the departmental notification of 19.10.82.
(3.) BOTH the respondents were appointed as Distract Cultural Officers subsequent to 1.11.78. For the first tune, in 1991 they challenged, the Notification of 13.7.84 regularising the appellant with effect from 1.11.78, 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 12.8.75, 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 27.4.67 relating to absorption foom one post, cadre of 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 1.11.78, absorbing him with effect from 1.11.78. 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 1.11.78 should have been entertained after a lapse of 7 years from the date of the Notification. Undoubtedly, the Notification of 12.8.78 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 27.1.67 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. 1.11.78, and that decision is backed by appropriate recommendation from the concerned department setting out all the circumstances in which the proposal is made, the decision cannot be called arbitrary or unreasonable.;