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2005 DIGILAW 253 (GAU)

Prasanta Chaudhari v. State of Nagaland

2005-03-23

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. By this writ application the Petitioner has assailed the legality and validity of the order dated 10.06.03 by which it was intimated that his ad hoc service as Hindi Teacher would not be extended beyond 30.06.03. In fact, by the said order the term of ad hoc appointment of the Petitioner along with Ors. was extended for the period from 01.02.03 to 30.06.03. 2. The facts material to resolve the controversy involved in this writ proceeding are that the Petitioner was appointed as Hindi Teacher at St. David School, Panso vice one Shri Arun Mall, Hindi Teacher transferred. The Petitioner was so appointed by order dated 06.06.02 purportedly issued by the Director of School Education, Nagaland. The appointment was purely on ad hoc basis and was terminable without any prior notice. It was further indicated that the Petitioner would continue in his service from the date of joining till interview was conducted. It was also indicated that ad hoc appointment would confer no right to claim for regularization without routing the case through interview board. 3. Pursuant to the aforesaid order of appointment dated 06.06.02, the Petitioner joined his service as Hindi Teacher and while was continuing as such, by the impugned order dated 10.06.03 it was intimated that the services of the incumbents including the Petitioner named in the order were extended for the period from 01.02.03 to 30.06.03. According to the Petitioner the order dated 10.06.03 is contradictory to the order dated 06.06.02 by which appointment was made in favour of the Petitioner. It is the case of the Petitioner that there was no question of extension of the term of the service of the Petitioner for the period of 01.02.03 to 30.06.03 with further stipulation that there would be no further extension, since in the order of appointment dated 06.06.02 it was clearly indicated that his service would continue till the interview was conducted. Thus, in a nutshell, it is the case of the Petitioner that he is entitled to continue in his service till the interview is conducted by the Respondents in accordance with rules. 4. The Petitioner in support of his case has placed reliance on the letter dated 29.11.02 (Annexure-7) by which the Govt. Thus, in a nutshell, it is the case of the Petitioner that he is entitled to continue in his service till the interview is conducted by the Respondents in accordance with rules. 4. The Petitioner in support of his case has placed reliance on the letter dated 29.11.02 (Annexure-7) by which the Govt. of Nagaland in the Education Department instructed the Director of School Education, Nagaland not to forward or entertain any appointment on ad hoc basis till December, 2002. By the said communication it was also instructed that applications for resultant vacancies of G/T which had due to promotion etc. would also be taken up only after cut of date according to need. Thus, as per the said communication made on 29.11.02, a restriction was imposed towards making any ad hoc appointment till December, 2002. The Petitioner having appointed by order dated 06.06.02, he asserts that this communication dated 29.11.02 cannot have any restrictive application so far his case is concerned. According to the Petitioner the said communication dated 29.11.02 on the basis of which the impugned order dated 10.06.03 was issued is not applicable to his case and thus, on this ground alone the impugned order dated 10.06.03 falls through. 5. The Respondents have filed their counter affidavit controverting the claim of the Petitioner. According to them, the Petitioner having been appointed on ad hoc basis, such appointment cannot confer any indefeasible right to the Petitioner to continue in his service. It is the stand of the Respondents that the Petitioner having been informed well in advance that his service would no longer be extended beyond 30.06.03, there was no infirmity in the action on the part of the Respondents. Further stand of the Respondents in the counter affidavit is that the Petitioner and Ors. were appointed in a most illegal manner de hors the recruitment rules. According to the Respondents an enquiry was conducted pertaining to the appointment of the Petitioner and Ors. and the enquiry report has revealed that illegal appointments were resorted to de hors the recruitment rules. According to them such appointments were not even processed in the file and that as per the own statement of the Petitioner, he obtained his appointment by incurring an expenditure of Rs.10,000/-. 6. An affidavit in reply has been filed on behalf of the Petitioner controverting the stand of the Respondents in their counter affidavit. According to them such appointments were not even processed in the file and that as per the own statement of the Petitioner, he obtained his appointment by incurring an expenditure of Rs.10,000/-. 6. An affidavit in reply has been filed on behalf of the Petitioner controverting the stand of the Respondents in their counter affidavit. In his reply affidavit, the Petitioner has stated that due to his busy schedule he could not approach the Respondents and for that purpose he entrusted the task relating to his appointment to one Shri Rocky Kent (Chairman of Old Tsemenyu Town and President of Rengma Area) by paying him Rs.10,000/-. He asserts that such expenditure was incurred towards journey etc. and that there was no question of paying any illegal gratification to anyone. 7. Heard Mr. R. Iraki, learned Counsel for the Petitioner and Ms. Lucy learned State counsel for the Respondents. Mr. Iralu elaborating his argument, submits that the Petitioner having been appointed by order dated 06.06.02 with the stipulation that he would continue in his service till interview was conducted towards regularization of his service, there could not have been alteration of such condition by issuing the impugned order dated 10.06.02 purportedly extending the period of service from 01.02.03 to 30.06.03 with further stipulation that his service would not be extended any further. He submits that the alleged irregularity committed in respect of the appointment of the Petitioner cannot be said to be any irregularity. As regards the payment of Rs.10,000/- to said Shri Rocky Kent, he submits that nowhere in the enquiry report furnished by the Respondents, it was indicated that the Petitioner paid the said amount by way of illegal gratification towards procuring his appointment. 8. Mr. Lucy, learned State counsel, on the other hand supporting the action of the Respondents, submits that the very basis of the appointment of the Petitioner being illegal, there was no infirmity in issuing the impugned order dated 10.06.03. Referring to the enquiry report annexed to the counter affidavit, she submits that the Petitioner obtained the appointment in an illegal manner and thus, there was no question of further extension of his service which he admittedly obtained through illegal means. Referring to the enquiry report annexed to the counter affidavit, she submits that the Petitioner obtained the appointment in an illegal manner and thus, there was no question of further extension of his service which he admittedly obtained through illegal means. She submits that in any public employment same will have to be proceed by advertisement and selection, but in the instant case the Petitioner obtained his appointment by incurring an expenditure of Rs.10,000/- which the Petitioner himself admitted. 9. Thus in a nutshell, her submission is that the Petitioner having been appointed on ad hoc basis and such appointment always being dependent on further extension as per the need of the Respondents, the Petitioner cannot claim that his service should be extended for all the times to come. She also submits that the very foundation of the appointment of the Petitioner being illegal, there was no question of extending the service of the Petitioner and thus, there was no illegality in issuing the impugned order dated 10.06.02. 10. I have considered the submissions made by the learned Counsel for the parties and have perused the materials available on record. The Petitioner was appointed by order dated 06.06.02. The terms and conditions of the appointment have already been discussed. He was appointed without specifying any duration. It is true that he was appointed on ad hoc basis specifying that his service would be terminated without any prior notice. At the same time, in the order of appointment it was also indicated that his service would continue till the interview was conducted. It is nobody's case that interview for the post has been conducted and that the Petitioner has been found unsuitable. 11. The impugned order dated 10.06.03 was issued on the basis of the Annesure-7 communication dated 29.11.02. The said communication reads as follows: Government of Nagaland Education Department No. EDS/1-2/2002/491::Dated Kohima the 29th Nov. 2002 To, The Director School Education Nagaland, Kohima Sub: Restriction for appointment of any category posts in the month of December, 02/Jan/03 Sir, I am directed to invite a reference on the above subject and to say that there is an incessant flow of proposals for appointment on ad hoc basis for various categories posts in the Department in spite of the fact that there is a decision made that there will be a break service of 1 (one) month for January. Therefore, you are requested not to forward or entertain any appointment on ad hoc basis till Dec., 02. Any applications for the resultant vacancies of G.T due to promotion etc. would also be taken only after the cut of date according to need basis. This may brought to the notice of your subordinate officers dealing with the matter. Yours faithfully, Sd/- Deputy Secretary to the Govt. of Nagaland. 12. A bare perusal of the said communication dated 29.11.02 would go to show that what was provided in the said communication was not to entertain any fresh ad hoc appointment upto December, 2002. Naturally, the said communication dated 29.11.02 could not have any retrospective application so as to take into account the appointment made in favour of the Petitioner by order dated 06.06.02. In the said communication dated 29.11.02 it was further requested that any application for resultant vacancies of G/T due to promotion etc. would also be filled up only after the cut of date according to need basis. Thus, I am of the considered opinion that the said communication dated 29.11.02 could not have been made the basis to pass the impugned order dated 10.06.02. 13. By the time the said communication was issued, the Petitioner was already appointed by order dated 06.06.02. In his order of appointment it was clearly indicated that he was to continue in his service till the interview was conducted. Even otherwise also, the content of the said communication dated 29.11.02 could not have been made applicable to the case of the Petitioner same being not at all applicable to his case. There was no question of extension of service to the Petitioner w.e.f. 01.02.03 to 30.06.03. The Petitioner was not appointed for any specified period by the order of appointment dated 06.06.02. Had it been the case of making appointment for a limited duration and thereafter to extend the same for a specified period, things would have been different. However, same is not the case on hand. The Petitioner was appointed on ad hoc basis and thus, there was no question of granting or extending his service for the period from 01.02.03 to 30.06.03. However, same is not the case on hand. The Petitioner was appointed on ad hoc basis and thus, there was no question of granting or extending his service for the period from 01.02.03 to 30.06.03. Be that as it may, once it is held that the very basis of issuance of the impugned order dated 10.06.03, i.e. the communication dated 29.11.02 was not applicable to the case of the Petitioner, the impugned order itself falls through. 14. There is Anr. aspect of the matter. The impugned order was issued on 10.06.03 and the purported enquiry against the Petitioner was carried out in August, 2003. The Respondents in their counter affidavit have stated that since the Petitioner was appointed in a most illegal manner, his service could be terminated. I have failed to understand such a reasoning adopted by the Respondents in their counter affidavit, firstly because in the impugned order dated 10.6.03 there is no mention about the illegal appointment of the Petitioner. No ground has been assigned except extending the service of the Petitioner and Ors. for the period from 01.02.03 to 30.06.03. Secondly, the enquiry which was conducted against the Petitioner in August, 2003, i.e. after issuance of the impugned order dated 10.06.03, could not have been made applicable towards issuance of the impugned order. As has been emphasized by the Apex Court in the case of Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. as reported in (1978) 1 SCC 405 , the impugned action of the Respondents must not be judged by the reasons so mentioned in the impugned order and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. It was emphasized by the Apex Court that if such a course of action is allowed, an order bad in the beginning, by the time it goes to the Court, on account of a challenge, get validated by additional grounds later brought out. 15. In the instant case also the very basis of the impugned order dated 10.06.03 being the impugned communication dated 29.11.02 as clearly reflected in the impugned order itself, the Respondents could not have supplemented the grounds beyond the grounds assigned in the impugned order by way of filing a counter affidavit. Even otherwise also, the grounds assigned in the counter affidavit are not sustainable for passing the impugned order dated 10.06.03. Even otherwise also, the grounds assigned in the counter affidavit are not sustainable for passing the impugned order dated 10.06.03. Thus, I am of the considered opinion that the ground on which the impugned order dated 10.06.03 was issued are not sustainable and accordingly the impugned order is set aside and quashed so far as the Petitioner is concerned. 16. After answering the writ petition in the above manner in so far as the impugned order dated 10.06.03 is concerned, thus the matter be left like that. The answer is "no" since the counter affidavit has made the shocking revelation in respect of the appointment of the Petitioner. The Petitioner himself has admitted in his reply affidavit that he entrusted the job for procuring appointment to said Shri Rockey Kent. During the course of enquiry conducted by the Respondents, he made the following statements: I have received my appointment order as Hindi Teacher through Shri Rockey Kent (Chairman and President of the Rengma Area) at Tsemingu old Town, dated on 11th June, 2002. As journey expenditure I have paid Rs.10,000/- (Rupees Ten thousand) to him. This statement is true to the best of my personal knowledge. I have declared this statement in front of joint Director. Prasanta Choudhury H/T St. David School, Panso 17. Now the explanation sought to be furnished by the Petitioner is that since he was busy elsewhere, he could not pursue the matter personally and accordingly paid the aforesaid amount of Rs.10,000/- to said Shri Kent as a journey expenditure. Needless to say that in any public employment, same will have to be preceded by advertisement and selection giving equal opportunity to all eligible candidates. But in the instant case, the Petitioner simply made an application before the Respondents and pursued the matter through said Shri Kent paying him an amount of Rs.10,000/- who in turn procured the order of appointment in favour of the Petitioner. The enquiry conducted by the Respondents in respect of the alleged illegal appointment reflects that the matter relating to the appointments of the Petitioner and Ors. were not processed in the official file. As regards the Petitioner, it has been stated in the inquiry report that he did not appear before the enquiry committee in spite of receipt of notice. The enquiry conducted by the Respondents in respect of the alleged illegal appointment reflects that the matter relating to the appointments of the Petitioner and Ors. were not processed in the official file. As regards the Petitioner, it has been stated in the inquiry report that he did not appear before the enquiry committee in spite of receipt of notice. However, he made a statement in writing that he had incurred the aforesaid expenditure of Rs.10,000/- as journey expenditure made in favour of the said Shri Kent. Thus, the Petitioner could get his appointment incurring an expenditure of Rs.10,000/- which is admitted by the Petitioner himself. Although he tried to justify such action stating that he was busy elsewhere, same does not stand to reason. 18. As emphasized above that in any public employment same will have to be processed giving equal opportunity to all eligible candidates. It is nobody's case that the Petitioner was appointment pursuant to any selection conducted by the Respondents, rather it is the stand of the Respondents that the Petitioner obtained the appointment order in a most illegal manner. In this connection, they have furnished the specimen signature of Shri Khukiye Sema, Joint Director of School Education, Nagaland, Kohima, who had allegedly issued the appointment order in favour of the Petitioner. According to the Respondents the signatures of Shri Sema, Joint Director of School Education, Nagaland, Kohima, in the order of appointment dated 06.06.02 and the specimen signature of said Joint Director furnished in the counter affidavit do not tally each other and thus, it is the stand of the Respondents that the appointment order dated 06.06.02 was obtained by the Petitioner by fraudulent means. I have verified the signatures of said Shri Khukiye Sema, Joint Director, appearing in the order of appointment dated 06.06.02 and in the counter affidavit. Some variations are apparent in both the signatures. 19. In view of the above, when the appointment of the Petitioner has been obtained on the basis of efforts through Ors. , the Respondents are entitled to take action against the Petitioner in accordance with rules. Some variations are apparent in both the signatures. 19. In view of the above, when the appointment of the Petitioner has been obtained on the basis of efforts through Ors. , the Respondents are entitled to take action against the Petitioner in accordance with rules. Since the impugned order dated 01.06.03 has been set aside and quashed and in view of the interim order, the Petitioner is still continuing in his service, it will be open for the Respondents to deal with the case of the Petitioner appropriately on the basis of the findings arrived at pursuant to the enquiry conducted against the Petitioner. They will be entitled to take into account the own statement of the Petitioner and the variation in the signatures of Shri Khukiye Sema, Joint Director, appearing in the appointment order and in the counter affidavit. 20. Needless to say that nobody can be rewarded on technical grounds, if he has committed any fraud in the matter of appointment. If the Petitioner has obtained hi s appointment by fraudulent means, appropriate action will have to be taken against the same by the Respondents. Merely because, the impugned order dated 10.06.03 has been set aside and quashed, same will not mean that the Petitioner will continue in his service in spite of fraudulent means allegedly adopted by him towards procuring the appointment. The Respondents will be at liberty to deal with the matter in accordance with law by putting the Petitioner to notice. What is emphasized is that the Respondents will be at liberty to terminate the service of the Petitioner by following the principles of natural justice. The Respondents shall issue notice to the Petitioner highlighting the facts narrated in the counter affidavit, i.e. the alleged fraud committed by him towards getting the appointment order asking for his explanation in the matter. If such reply is furnished by the Petitioner, the Respondents shall take into account the same and pass appropriate order in accordance with rules. Entire exercise shall be carried out as expeditiously as possible. 21. Subject to the above directions, the writ petition partly succeeds. There shall be no order as to costs.