Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 773 (GAU)

Yashimenla v. Addl. Chief Secretary to the Govt. of Nagaland

2008-11-06

P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. Heard Mr. Wati Jamir, learned Counsel for the Petitioner and also Mrs. Lucy, learned Government Advocate for the State Respondents. 2. In this case, notice of motion was issued on 8.9.2008 making it returnable within four weeks. No response was filed by the State Respondents. Thereafter, rule was issued on 14.10.2008 making it returnable in three weeks. No counter affidavit has been filed till this date by the State Respondents. 3. The Petitioner has challenged the impugned order No. ED/HT/C/26/2006-07 (Vol. B) dated 19.8.2008 terminating the service of the Petitioner from the post of Hindi teacher w.e.f. 1.1.2007. In the petition, it is stated that she was initially appointed as Hindi teacher at King David School, Atoizu, Government Middle School, Zunheboto, under Deputy Inspector of Schools on Ad hoc basis by an order dated 16.7.2001 and her appointment was extended from time to time till 31.12.2006 vide last extension order dated 14.3.2006 (Annexure-E5 to the writ petition). The Petitioner has been serving as Hindi teacher in the same school without any break. Although, the extension order was made only up to 31.12.2006, the Petitioner was allowed to serve in the said school as Hindi teacher till August 2008 and no salary was paid to her w.e.f. 1.1.2007 to August 2008. 4. In one of the extension order, namely, Office order No. EH/HT/A/18/2002-03 dated 27.2.2004 (Annexure-E3), it is stated that the services of 73 Hindi teachers including the Petitioner are extended w.e.f. 2.1.2004 up to 31.12.2004 or till interview is conducted which ever is earlier. Same was stated in the next extension order No. ED/HT/C/6/2004-05 dated 14.2.2005 (Annexure-E4). From the aforesaid orders, it can be gathered that the State Respondents are contemplating to initiate regular recruitment by conducting interview for filling up the vacant post against which the Petitioner and other persons have been appointed temporarily. It can reasonably be presumed that the vacant posts are required to be filled up as per the existing rules and procedures. There is reason to believe that since the Petitioner and other persons similarly situated have been allowed to continue as Hindi teacher for more than 7 years, there is need for Hindi teachers and the posts are required to be filled up by regular process of recruitment. 5. There is reason to believe that since the Petitioner and other persons similarly situated have been allowed to continue as Hindi teacher for more than 7 years, there is need for Hindi teachers and the posts are required to be filled up by regular process of recruitment. 5. It is evident that the Respondent authorities have not yet been able to initiate recruitment process but they have terminated the Petitioner from service before resorting to recruitment process. The Petitioner has been terminated without giving any notice or opportunity of hearing before the termination order was issued which is against the basic principle of natural justice and rule of law. 6. The Petitioner having served for a period of more than 7 years and has accrued a right to be considered for appointment to the post and her service cannot be terminated without giving her notice and opportunity of hearing. Although no allegation has been made by the Petitioner that the Respondent authorities are making an effort to appoint some other persons in place of the Petitioner she can reasonably apprehend that the Respondent authorities may appoint some one in her place. It is a settled law that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee and she must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority. The Apex Court held so in the case of State of Haryana v. Piara Singh, (1992) 4 SCC 118 . Although, no steps have been taken by Respondent authorities, the action of the Respondent authorities in terminating the service of the Petitioner cannot be sustained. The impugned termination order dated 19.8.2008 (Annexure-N) is therefore, liable to be quashed, and accordingly the same in so far it relates to the writ Petitioner is quashed. 7. It may be made clear that the Petitioner may be reinstated with immediate effect and may be allowed to continue as Hindi teacher till regular appointment is made. It may be made clear that the Petitioner shall not be entitled to back wages. 7. It may be made clear that the Petitioner may be reinstated with immediate effect and may be allowed to continue as Hindi teacher till regular appointment is made. It may be made clear that the Petitioner shall not be entitled to back wages. It is also further made clear that the Respondent authorities shall verify as to whether the Petitioner rendered her services w.e.f. 1.1.2007 to August 2008, and if it is found that she has been really rendering his services as Hindi teacher, she may be paid her due salary for the said period. 8. This Court expresses serious concern over the lapses of the State Respondents in initiating process for regular recruitment of Hindi teacher for last over 7 years. The State Respondents are expected to initiate recruitment process, immediately so as to prevent inflow of unnecessary litigations and also prevent vicious circles from indulging incorruption in the matter of employment. 9. Petition stands disposed of. 10. A copy of this order may be furnished to Mrs. Lucy, learned Government Advocate who shall transmit the same to the concerned official Respondents for taking necessary action. Petition allowed