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2017 DIGILAW 1134 (GAU)

Viboli S. Sumi v. State of Nagaland

2017-08-18

L.S.JAMIR

body2017
JUDGMENT : 1. Heard Mr. Supongwati, learned counsel for the petitioner. Also heard Mr. K. Angami, learned Government advocate appearing for the State respondent Nos. 1 to 6 as well as Mr. N. Mozhui, learned counsel appearing for the respondent No. 7. 2. One post of sectional Assistant (‘SA’) fell vacant under the establishment of Executive Engineer, Public Works Department (Road & Bridges) [‘PWD’ ‘(R&B’)], Kiphire Division, Kiphire, Nagaland due to the voluntary retirement of one Shri H. Shihoi Yeptho. The petitioner who is the daughter of the said Shri H. Shihoi Yeptho made an application dated Nil addressed to the Engineer-in-Chief, Nagaland Public Works Department, Nagaland, Kohima for considering her case for appointment in the said vacant post. The said application was forwarded to the respondent No. 4 by the Executive Engineer, PWD (R&B), Kiphire Division by forwarding letter dated 29.8.2013. As no steps were taken, the petitioner made another application for appointment to the post of SA before the respondent No. 4 which was also forwarded by the Executive Engineer, PWD (R&B), Kiphire Division, Kiphire by forwarding letter dated 20.10.2014. In the meantime, the petitioner came to learn that the respondent No. 7 was appointed to the said vacant post of SA by office order dated 21.11.2014 in pursuance of the Government approval letter dated 21.11.2014. Being aggrieved, the present writ petition. 3. Mr. Supongwati, learned counsel for the petitioner submits that the petitioner was the only applicant to the vacant post of SA. It is submitted that her applications were forwarded to the respondent No. 4. However, no steps were taken and instead of considering the case of the petitioner, the official respondents have appointed the respondent No. 7, though no application has been made by him. In that view of the matter, he prays for setting aside the impugned order dated 21.11.2014 by which the respondent No. 7 was appointed to the post of SA. 4. Mr. K. Angami, learned Government advocate submits that it is within the prerogative of the Government for giving its approval for appointment to the post of SA. Therefore, the respondents after considering the applications made by the petitioner and the respondent No. 7 had decided in favour of the respondent No. 7. As such, there is nothing wrong in the office order dated 21.11.2014 inasmuch as, the respondent No. 7 was appointed after getting the approval of the Government. 5. Therefore, the respondents after considering the applications made by the petitioner and the respondent No. 7 had decided in favour of the respondent No. 7. As such, there is nothing wrong in the office order dated 21.11.2014 inasmuch as, the respondent No. 7 was appointed after getting the approval of the Government. 5. Mr. N. Mozhui, learned counsel appearing for the respondent No. 7, on the other hand, submits that it is not correct that there was no application made by the respondent No. 7 for appointment to the vacant post of SA. He also submits that the petitioner is the daughter of the said person Shri H. Shihoi Yeptho who had taken voluntary retirement and as per the Government Notifications/Instructions, the petitioner has no right to claim for appointment to the post held by her father. In that view of the matter, learned counsel for the respondent No. 7 prays for dismissal of the writ petition. 6. I have considered the submissions forwarded by the learned counsel for the parties. 7. The controversies as to whether the respondent No. 7 has made any application for appointment to the vacant post of SA is not the material issue in the present writ petition. The important issue is the manner by which the respondent No. 7 has been appointed. The appointment of the respondent No. 7 amounts to backdoor appointment which is not permissible in law. Once a post becomes vacant, it is incumbent upon the official respondents to advertise the same and thereafter, make appointment in accordance with law. This has not been done in the present case. Considering the manner in which the official respondents had taken steps for filling up of the vacant post of SA under the establishment of the Executive Engineer, PWD (R&B), Kiphire Division, Kiphire, this court is of the considered opinion that the respondent No. 7 cannot be allowed to continue in service. 8. In that view of the matter, this writ petition is disposed of with a direction to the official respondents, more particularly, the respondent Nos. 3 and 4 to advertise the said vacant post of S A under the establishment of Executive Engineer, PWD (R&B), Kiphire Division, Kiphire, Nagaland by allowing all eligible candidates to participate in the open competition and thereafter, fill up the said post in accordance with law. 3 and 4 to advertise the said vacant post of S A under the establishment of Executive Engineer, PWD (R&B), Kiphire Division, Kiphire, Nagaland by allowing all eligible candidates to participate in the open competition and thereafter, fill up the said post in accordance with law. This shall be done within a period of 6 months from the date of receipt of a copy of the order of this court by the respondent Nos. 3 and 4. Till the expiry of 6 months, the respondent No. 7 shall be allowed to continue in the said post of SA. However, if the official respondents fail to fill up the said vacant post within the prescribed period of six months in accordance with law, the appointment of the respondent No. 7 shall stand automatically terminated. 9. This court has also noticed that the respondent No. 7 has become overaged during the pendency of this writ petition. In that view of the matter, as and when the advertisement is made by the respondents, and if the respondent No. 7 wishes to apply for the same, he shall be allowed to participate in the open competition by the respondents by condoning his age. 10. With the above observations and directions, this writ petition is disposed of.