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2008 DIGILAW 770 (GAU)

W. Manlem Konyak v. State of Nagaland

2008-11-05

P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. None appears for the Petitioner. Heard Mrs. Y. Longkumer, learned Govt. advocate appearing on be of the state Respondents. 2. The Petitioner was appointed as a Primary Teacher at Govt. Primary School, Chingkao village under the establishment of Deputy Inspector of Schools, Aboi, Mon against an existing vacancy on ad hoc basis vide order No. ED/EL/C-1/2002-03(Pt-III) dated 4.10.2006 (Annexure-A to the writ petition) issued by the Addl. Director of School Education The said, appointment was made from the date of joining up to 31.3.2007 vice late H. Langpho who expired on 6.5.2006. But before 31.3.2007, the Addl. Director of School Education appointed Respondent No. 4, Mr. H. Samuel as Primary Teacher on ad hoc basis vide order No. ED/EL/C-1/2002-03 (Pt-III) dated 14.2.2007 superseding the ad hoc appointment of the writ Petitioner. The Petitioner has challenged the impugned order dated 14.2.2007 appointing the Respondent No. 4 by replacing him. 3. This Court while issuing notice of motion on 5.3.2007 stayed the aforesaid impugned order dated 14.2.2007 (Annexure-B to the writ petition) till 31.3.2007 or till the disposal of this writ petition, whichever is earlier. The Petitioner by virtue of the aforesaid stay order has been continuing in service as Primary Teacher till this date. 4. An affidavit-in-opposition has been filed by Respondent No. 2, Director of School Education Nagaland, Kohima. In para 5 of the said counter affidavit, it is stated that the Respondent No. 4 was appointed on the approval of the Govt.; but in view of the fact that the Respondent No. 4 was also appointed on ad hoc basis, the matter was rectified and the appointment of the Respondent No. 4 has been Kept in abeyance vide order No. ED/EL/C/1/2002-03(Pt-III) dated 2.4.2007 and on the same day the service of the present Petitioner has been extended upto 31.3.2007 or till disposal of the writ petition whichever is earlier vide order No. ED/EL/C/1/2002-03(Pt-III) dated 2.4.2007. 5. None appears for the private Respondent No. 4. An affidavit-in-opposition has been filed, by private Respondent No. 4 in which averments, have been made inter alia, that he is the first cousin of Late H. Langpho Konyak who was serving as the Primary Teacher of the aforesaid school and died in harness. 5. None appears for the private Respondent No. 4. An affidavit-in-opposition has been filed, by private Respondent No. 4 in which averments, have been made inter alia, that he is the first cousin of Late H. Langpho Konyak who was serving as the Primary Teacher of the aforesaid school and died in harness. Being cousin of the foresaid school teacher, the Respondent No. 4 was appointed on compassionate ground against the said vacancy occurred due to death of late H. Langpho Konyak. 6. The contention of the Respondent No.4 has been countered by the Petitioner in the affidavit-in-reply filed on 28.6.2007. In paragraphs 4 and 5 of the affidavit-in-reply, it is stated as follows: 4. That the Respondent No. 4 has held himself out to be the son of late H. Langpho konyak and as a result his appointment order stands in the name of late H. Langpho Konyak is evident from Annexure-C to the affidavit in opposition. The Respondent No. 4 is married to the sister of late H. Langpho Konyak and therefore he is also not the first cousin of late H. Langpho Konyak as claimed by him. 5. That the Respondent No. 4 has made false statements and twisted facts in a vain attempt to being himself within the scheme for compassionate appointment. In terms of the said scheme issued vide Memorandum No. AR-8/8/78 dated 13.2.2002, the Respondent No. 4 is not entitled to be considered for appointment on compassionate ground. A copy of the memorandum dated 13.2.2002 is hereto annexed and marked as Annexure-A. 7. I have perused the office Memorandum dated 13.2.2002 (Annexure-B to the rejoinder) which contains the scheme of compassionate appointment for dependants of deceased Govt. servants. According to this scheme appointment on compassionate grounds is applicable only to (a) spouse or (b) son or (c) daughter or (d) brother or sister. The cousin is not included in the aforesaid scheme and as such in my considered view the Respondent No. 4 cannot, claim appointment, on compassionate ground and any appointment made on compassionate ground, in respect of the Respondent No. 4 would be illegal and unauthorised. 8. At the time of hearing. Mrs. Y. Longkumer, learned Govt. The cousin is not included in the aforesaid scheme and as such in my considered view the Respondent No. 4 cannot, claim appointment, on compassionate ground and any appointment made on compassionate ground, in respect of the Respondent No. 4 would be illegal and unauthorised. 8. At the time of hearing. Mrs. Y. Longkumer, learned Govt. advocate submits that the present writ petition has become infructuous in view of the fact that the appointment of Respondent No. 4 has been kept in abeyance and the Petitioner has been allowed to continue in service. 9. Although the Petitioner has been allowed to continue in service by virtue of the said order dated 5.3.2007, the issue involved in this case would not be treated as adjudicated Indisputable fact is that the Petitioner was appointed on ad hoc basis for a particular period of time and before expiry of the aforesaid period his ad hoc appointment has been cancelled/superseded and the Respondent No. 4 was appointed Vide impugned order dated 14.2.2007. It is clear that the ad hoc appointment of the Petitioner has been replaced by another ad hoc appointment of Respondent No. 4. The settled position of law is that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee. There are several decisions in this regard by the Apex Court. I may only cite the case of State of Haryana and Ors. v. Piara Singh and Ors., (1992) 4 SCC 118 . In view of the aforesaid well settled position of law, the impugned appointment of Respondent No. 4 vide order dated 14.2.2007 cannot be allowed to operate and it is livable to be quashed and accordingly the same is quashed. Interim order dated 5.3.2007 is made absolute and the Petitioner shall be allowed to continue in service till regular appointment is made in accordance with law and existing procedure. This writ petition stands allowed. Petition allowed