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2010 DIGILAW 452 (GAU)

Village Education Committee v. State of Nagaland

2010-06-28

UTPALENDU BIKAS SAHA

body2010
JUDGMENT U.B. Saha, J. 1. The instant writ petition is filed by the Village Education Committee, New Jalukie Village, ('VEC') a committee formed under the Nagaland Communitisation of Elementary Education Institutions and Services Rules, 2002 ('Rules') for quashing the order of ad hoc appointment of the Respondent No. 3 as the said order of appointment was issued without the recommendation of the VEC and also to consider the appointment of one Mr. Irangbui as Primary Teacher in terms of the Rule 6(1)(xii). 2. Heard Mr. N. Mozhui, learned Counsel for the Petitioner-VEC as well as M/s. Lucy, learned GA for the Respondent Nos. 1 and 2. None appears for the Respondent No. 3, even after receipt of notice. 3. The case of the Petitioner in a nut-shell is as follows: The Petitioner-VEC was constituted under the Rules and as per the provisions of Rule 6(1)(xii) of the said Rules for appointment of a substitute teacher by the Respondent State, recommendation by the Petitioner-VEC is mandatory. The Respondents without any recommendation from the VEC appointed Respondent No. 3 on ad hoc basis to the post of Primary Teacher vide order dated 11.6.2007 (Annexure-G to the writ petition) at Government Primary School, New Jalukie Village under the establishment of the Deputy Inspector of Schools, Peren in the scale of pay of Rs. 1250-30-1400-35-1630-40-2280 plus special compensatory remote locality allowances @ 15% basic pay with all other allowances at the rates prescribed by the Government of Nagaland from time to time with effect from the date of joining up to 6(six) months vice Shri. K.D. Namty P/T retired with effect from 31.3.2007. It is also contended that the State Respondents conveyed its approval for ad hoc appointment of primary teacher at Government Primary School, New Jalukie vide letter dated 22.5.2007 which is contrary to the provisions of the Rules. Being aggrieved by the action of the State Respondents, the Petitioner-VEC filed the instant writ petition. 4. The Respondents, by way of filing affidavit-in-opposition denied the allegation of the Petitioner stating, inter alia, that the provisions of Rule 6(1)(xii) of the Rules has no application in the instant case as Respondent No. 3 was not appointed as a substitute teacher in the school within the jurisdiction of the Petitioner-VEC. Rather he was appointed as a primary teacher against the clear vacancy after the retirement of Mr. Rather he was appointed as a primary teacher against the clear vacancy after the retirement of Mr. K.D. Namty, Primary Teacher, though the appointment was on ad hoc basis as a stop gap arrangement till the selection on regular basis. 5. The Respondents also raised the question that the recommendation of the VEC is necessary only in the case of appointment of substitute teacher not for appointment of a teacher against the regular vacancy either on regular or ad hoc basis and as the case in hand is totally different from the plea of the Petitioner-VEC, the recommendation of the Petitioner is not necessary. 6. Mr. Mozhui submits that when the statute prescribes a particular mode of appointment the government cannot by-pass the same using a different terminology. According to him, Respondent No. 3 is appointed vice K.D. Namty, Primary Teacher retired from Government Primary School, New Jalukie for which the Petitioner-VEC is constituted and it is only the VEC who can recommend the name of a teacher in place of the said K.D. Namty, not the Respondents. 7. He also contended that the appointment of any teacher in place of Mr. K.D. Namty should be considered as appointment of substitute teacher. Therefore, the provisions of Rule 6(1)(xii) are applicable and any appointment without the recommendation of the VEC is contrary to the provisions of Rule 6(1)(xii) and is liable to be set aside. 8. Per contra, M/s. Lucy while resisting the submissions of Mr. Mozhui would contend that there is a difference between ad hoc teacher and substitute teacher. Substitute means one who stands in another's place and ad hoc means an immediate arrangement. In the instant case, Respondent No. 3 was appointed against the permanent vacancy due to retirement of Mr. K.D. Namty, Primary Teacher and not in place of a person who is still in service. Therefore, the said appointment cannot be considered appointment of substitute unless the appointment is substitute in nature the provisions of Rule 6(1)(ii) has no application even if the appointment is either for six months or one year. 9. K.D. Namty, Primary Teacher and not in place of a person who is still in service. Therefore, the said appointment cannot be considered appointment of substitute unless the appointment is substitute in nature the provisions of Rule 6(1)(ii) has no application even if the appointment is either for six months or one year. 9. She also contended that the present Petitioner earlier also filed a writ petition before this Court being WP(C) 97(K)/2007 challenging the communication of approval dated 22.5.2007 (Annexure-F to the writ petition) and this Court though initially granted an interim order staying the approval for ad hoc appointment of the Respondent No. 3 but subsequently the said writ petition was withdrawn on 27.6.2007 and no liberty was granted to the Petitioner for filing a fresh petition. In support of her aforesaid contention she placed reliance on Annexure-A to the writ petition from which it appears that the court though closed the writ petition but no liberty was granted. 10. She further contended that it would not be proper for the court to quash the appointment of Respondent No. 3 as the same was issued in the year 2007 and his service was subsequently extended vide order dated 2.5.2008 (Annexure-I to the additional affidavit filed by the Respondent No. 2) w.e.f. 1.1.2008 to 31.12.2008 and the said order of extension is also not under challenge in the instant writ petition. 11. She finally contended that the State Respondents are issuing order of ad hoc appointment only in case of urgent necessity till the regular selection is completed, as advertisement and holding of interview would require considerable amount of time. According to her, it would be proper for this Court to dismiss the writ petition with a simple direction to the State Respondents to fill up the post of primary teachers in the Government Primary School, New Jalukie under the establishment of the Deputy Inspector of Schools, Peren, i.e., the School within the jurisdiction of the Petitioner-VEC. 12. Having heard the learned Counsel for the parties and on going through the records available as well as the Rules, this Court is of the opinion that for disposal of the instant writ petition it would be profitable to reproduce the provisions of Rule 6(1) (xii) of the Rules. Accordingly, the same is reproduced hereinunder: 6. POWER AND FUNCTIONS OF THE VILLAGE EDUCATION COMMITTEE: 1. Administrative: (i) ........................ (ii) ........................ Accordingly, the same is reproduced hereinunder: 6. POWER AND FUNCTIONS OF THE VILLAGE EDUCATION COMMITTEE: 1. Administrative: (i) ........................ (ii) ........................ (iii) ........................ (iv) ........................ (v) ........................ (vi) ........................ (vii) ........................ (viii) ........................ (ix) ........................ (x) ........................ (xi) ........................ (xii) Appointment of substitute teachers for period of three months to one year, subject to the existing Government rules, shall be made only on the recommendations of the VEC. 13. From the Rule reproduced supra it is clear that the respective VEC is no doubt the recommending authority for appointment of substitute teachers subject to the condition that such teacher is appointed for a period of three months to one year subject to the existing government rules. Now question arises for decision in the instant writ petition is whether the Respondent No. 3 is a substitute teacher or an ad hoc teacher against the regular vacancy for a particular tenure. 14. Substitute teacher means a teacher appointed in place of another teacher, i.e., when a teacher is either on leave or went for training then in his place if anybody is engaged/appointed for a period as mentioned in the provisions of Rule 6(1)(xii) of the Rules. In the instant case, the Respondent No. 3 was appointed though vice one Mr. K.D. Namty a primary teacher, who has already retired but against the regular vacancy. Therefore, it cannot be said that Respondent No. 3 is a substitute teacher, rather as he is appointed against the regular vacancy without following the regular procedure to fulfill the immediate need of the School for public interest, hence, the same can be treated as an ad hoc appointment for which recommendation of the VEC is not necessary and the authority also rightly used the terminology, 'ad hoc' while appointing the Respondent No. 3. 15. According to this Court, the government should not go for filling up a post against a regular vacancy by way of substitute appointment or by way of ad hoc appointment unless such appointment is immediately called for in the public interest. And even if a substitute appointment and/or ad hoc appointment is made that, should be for a limited period preferably for six months and within the aforesaid six months the government should fill up the post on regular basis following the prescribed procedure of public employment, i.e., by way of public advertisement and proper interview by the selection committee. 16. And even if a substitute appointment and/or ad hoc appointment is made that, should be for a limited period preferably for six months and within the aforesaid six months the government should fill up the post on regular basis following the prescribed procedure of public employment, i.e., by way of public advertisement and proper interview by the selection committee. 16. More so, none of the learned Counsel is in a position to inform this Court whether the Respondent No. 3 was selected through proper interview by a proper selection committee while he was appointed on ad hoc basis. This Court is of the view that whenever any person is appointed without proper interview and selection by a proper selection committee then the government should not allow him/her to continue in service for an unlimited period depriving the unemployed youths who are in queue and ready to face the proper interview for getting a Job. 17. As M/s. Lucy fairly submits that the government is ready to fill up the post of primary teacher in the Government Primary School, New Jalukie on regular basis by way of regular selection, more so, when there is no document available on record regarding the subsequent extension of service of Respondent No. 3 after 2008, in that view also it would not be proper to interfere with the order of appointment of Respondent No. 3, but this Court hope and trust that the government will fill up the post fallen vacant due to retirement of an officer presently being held by an ad hoc appointee on regular basis by way of following the proper public employment policy, i.e., proper advertisement and interview through a proper selection committee and in case of an appointment of a substitute teacher in a school the State Respondents should also follow the provisions of Rule 6(1)(xii) framed by the State of Nagaland. 18. In view of the aforesaid discussion, the instant writ petition is dismissed as devoid of merit. No order as to costs. Petition dismissed