JUDGMENT
B. Lamare, J.
1. Heard Mr. C. T. Jamir, learned counsel for the petitioners and Mrs. Y. Longkumer, learned Government Advocate for the respondents.
2. The petitioners and the respondent No. 5 were recruited directly through Nagaland Public Service Commission (for short NPSC) in the year 1988 and posted as Deputy Superintendent of Police in the Nagaland Police Service Class-I Gazetted under the Home Department, Government of Nagaland, and they are still serving till date as Addl. Superintendent of Police/Deputy Commandant in the
department. The services of the petitioner are governed by the Nagaland Police Service (Class-I and Class-II) Rules, 1977 (for short 1977 Rules).
3. The grievance of the petitioners is that, the respondent No. 5 while posted as Personal Security Officer to the Chief Minister in the rank of Deputy Superintendent of Police, he was given out-of-turn promotion to the rank of Addl. Superintendent of Police by order dated 26.5.2000, Out of the said out-of-turn promotion order, the seniority of the respondent No. 5 was to be counted from 29.11.1999. However, by order dated 2.6.2000 the petitioners were also promoted to officiate as Addl. Superintendent of Police/Deputy Commandant in the Department: However, in spite of promotion granted to them, they are still aggrieved by the impugned order dated 26.5.2000 by which the respondent No. 5 was given out-of-turn promotion and also granting him the seniority w.e.f. 29.11.1999. The petitioners, therefore, have assailed the said order in this writ petition.
4. The respondents 1 to 4 have filed Affidavit in opposition. In their Affidavit the respondents have admitted that there is no provision in the 1977 Rules to give out-of-turn promotion on account of gallantry, however, in order to motivate and encourage the Police Officers to tackle grave situations with courage, the Cabinet after careful consideration decided to give out-of-turn promotion to respondent no. 5 who had shown such courage. The respondents also contended that the post of Personal Security Officer was upgraded to the post of Addl. Superintendent of Police in order to accommodate the respondent No. 5, and as such, question of promoting any other Officers against that post does not arise.
5. I have heard learned counsel for the parties and perused the records.
6. Mr. C.T. Jamir, learned counsel for the petitioners contended that the respondent No. 5 cannot be given out-of-turn promotion without amendment of 1977 Rules, since there is no such provision of out-of-turn promotion in the 1977 Rules. Learned counsel further contends that, even if the respondent No. 5 is promoted it must be done in accordance with the rules and not by administrative order. Learned counsel further contends that for such exemplary courage shown by the respondent No. 5, he deserves recognition by the State Government, but not by giving out-of-turn promotion in violation of the rules.
7. Mrs. Y. Longkumer, learned counsel for the respondents on the other hand contended that the order giving out-of-turn promotion to the respondent No. 5 was made as per Government policy and after having obtained the Cabinet approval for the purpose. In support of her contention, Mrs. Y. Longkumer also produced a file by which a decision was taken by the Cabinet to give out-of-turn promotion to the respondent No. 5.
8. In the instant case, it is not disputed that the services of the petitioners as well as respondent No. 5 are governed by 1977 rules. According to Rule 4, the cadre of the Nagaland Police Service Class-I and Class-II are of two categories. Rule 4 reads as follows :
“4. Cadre. – The Cadre of the service shall comprise the following categories of posts :
(i) Nagaland Police Service Class-I :
(a) Additional Superintendent of Police/Deputy Commandant,
and
(b) Such other posts as may be declared by the Governor as equivalent to any of the posts mentioned in (a) above.
(ii) Nagaland Police Service Class-11 :
(a) Deputy Superintendent of Police/Sub-Divisional Police Officer.
(b) Assistant Commandant/Adjutant/Quarter/Master/ Company Commandant.
and
(c) Such other posts as may be declared by the Governor as equivalent to the posts mentioned at (a) and (b) above.
(iii) The number and nature of posts in each cadre shall be as determined by the Governor from time to time. On the commencement of these rules, the sanctioned strength in each cadre shall be as given in Schedule-I.
Note : Members of the lower cadre shall have no claim for appointment to the higher cadre except in accordance with the provisions made in these rules.”
9. The Schedule-I to the rules also indicates 2 (two) categories of Class-1 and Class-11 as prescribed in Rule 4. Rule 19 of the rules speaks of promotion and Rule 20 indicates of seniority in the Class-I service. For convenience. Rules 19 and 20 are reproduced below :
“19. Promotion to Class-I Service : – (1) All posts in the Class-1 services as shown in the Schedule-I of these rules shall be filled by promotion under from among the members of the Class-II service. A confirmed me’mber of the Class-II serviceshall be eligible for promotion to the Class-I service but no one shall be so promoted unless he has served in the Class-II Service for a minimum period of 7 years and the Governor is satisfied about his ability integrity and character.
(2) Promotion to the Class-I service shall be made by the Governor from a list of suitable members of the Class-II service as prepared from time to time and reviewed as and when necessary by the departmental promotion committee consisting of the members named under rule 7 of these rules.
20. Seniority in the Class-I Service. – The seniority of the members of the Nagaland Police Service Class-I shall be in the order in which the names are arranged by the Departmental Promotion Committee under Sub-rule 2 of Rule 19 for the purpose of promotion to that grade.”
10. In the instant case, the petitioners and the respondent No. 5 were directly recruited in the Class-I service of the Police Department. It is also admitted by the respondents in their Affidavit in para 6 that there is no provision for giving out-of-turn promotion on account of gallantry. It is also not disputed that the said 1977 rules were not amended to make any provision for out-of-turn promotion.
11. In view of the above position, the only point to be seen is that, whether out-of-turn promotion can be given to the respondent No. 5 by passing administrative order by the Cabinet. The 1977 rules were made by the Government in exercise of power conferred by provision of Article 309 of the Constitution of India. The Cabinet decision is no doubt made in exercise of the executive power vested to the Cabinet under Article 162 of the Constitution of India. It is a settled law that the administrative order cannot over-ride the legislative power conferred on the Governor which has been exercised under Article 309 of the Constitution of India. That being so, if any power is sought to be exercised by the State Government under Article 162 of the Constitution, the requirement of amending the rules is attracted. In other words, the Executive power giving out-of-turn promotion to the respondent No. 5 cannot be exercised without amendment of the rules which was not done in the instant case.
12. Considering the observations and discussions made above, I am of the considered view that the out-of-turn promotion given to the respondent No. 5 of order No. POL-1/ESTT/12/91(2) dated 26.5.2000 was made without jurisdiction and contrary to the provisions of the rules and can not stand the test of law. Needless to say that the respondent No. 5 was also given seniority w.e.f. 29.11.1999 without authority of law.
13. Accordingly, the said out-of-turn promotion dated 26.5.2000 granted to the respondent No. 5 and his seniority w.e.f. 29.11.1999 are hereby set aside and quashed. Petition is allowed and the rule is made absolute.
14. Since the petitioners and the respondent No. 5 were already promoted on officiating basis, it is open to the State respondents to regularise their services in accordance with the said 1977 rules.
15. Before parting with the records it is however, expressed my appreciation to the respondents for recognition of the gallantry show by the respondent No. 5 in performing his duties in such a grave situation with courage and ability at the risk of his own life to save a person under his guard. Such gallantry and courage should be rewarded in any manner according to the wisdom of the State Government. It is also an example to be shown by the State Government to the other Officers serving in the force who are also expected to do the same in such situation while performing their duties.
16. With the above directions and observations, the petition is disposed of.
The file submitted by Mrs. Y. Longkumer is returned back to her.