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2017 DIGILAW 335 (GAU)

Thepfudihoulie Shuya v. Atouzo Pienyu

2017-03-16

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT AND ORDER : Manojit Bhuyan, J. A writ petition being WP(C) 255(K) of 2011 was filed by 29 persons who are Veterinary Science Graduates without employment. Grievance raised was in respect of the inequitable mode of appointment of Veterinary Assistant Surgeons (VAS) in the State of Nagaland dehors the provisions under the Nagaland Animal Husbandry and Veterinary Service Rules, 1979 (in short 'the Rules'). It was highlighted that appointments continued to be made on contract basis arbitrarily and without asking the Nagaland Public Service Commission for issuing advertisement and for holding selection. Such employees were subsequently regularized on the basis of Office Memorandum dated 04.08.2008. The appellants herein were party respondents in the writ petition who had been appointed as VAS on contract basis and subsequently regularized against permanent vacancies. The said writ petition was answered in favour of the respondents herein/writ petitioners vide judgment and order dated 14.11.2014 by making reference to a catena of Apex Court decisions relating to the concept of regularisation of service; the validity of the practice of executive action under Article 162 of the Constitution for regularizing service dehors the procedure prescribed under the rules and the principles governing public appointment. On consideration thereof, the learned Single Judge held that when there is a set of statutory rules governing recruitment to public posts and offices, the same are to be followed scrupulously by the State authority. It was held that making departure from the procedure prescribed under the Rules without advertisement and without inviting applications from open market tantamounts to violation of Article 14 and 16 of the Constitution. It was held that it would not be a valid mode of appointment if a person had been regularized in service otherwise not appointed as per rules. It would be a backdoor entry and same cannot confer any right to regularisation in service. Also, it would be unconstitutional to circumvent the procedure prescribed under a statutory rule and take recourse to a scheme framed under Article 162 of the Constitution. Regularisation cannot take place on the strength of a Cabinet decision adopted in exercise of power under Article 162 of the Constitution. Also, it would be unconstitutional to circumvent the procedure prescribed under a statutory rule and take recourse to a scheme framed under Article 162 of the Constitution. Regularisation cannot take place on the strength of a Cabinet decision adopted in exercise of power under Article 162 of the Constitution. The learned Single Judge noticed para 53 in Secretary, State of Karnataka v. Umadevi, reported in (2006) 4 SCC 1 and held that the one-time exercise indicated therein for regularizing the services of irregularly appointed persons would not be applicable and come to the aid of the appellants herein, who were arrayed as private respondent nos. 5 and 7 to 16 in the writ petition. The writ petition was partly allowed by setting aside the regularization orders of the appellants. It was observed that the State respondents are duty bound to comply with the procedure prescribed under the rules for the purpose of filling up the vacancies held by the appellants herein along with other such vacancies. It was further observed, by making reference to para 55 of Umadevi (3) (supra), that the appellants be allowed to participate in the selection process to be undertaken for filling up the permanent vacancies of VAS by waiving age restriction, having regard to their long years of service. 2. Assailing the said judgment and order dated 14.11.2014, Mr. S. Dutta, learned senior counsel representing the appellants places strong reliance in the Office Memorandum dated 04.08.2008 of the Department of Personnel and Administrative Reforms, Government of Nagaland, as being a valid source of power validating the regularisation of service of the appellants. He, however, candidly and fairly expresses reservation on the said Memorandum in the teeth of the principles on regularisation laid down in Umadevi (supra). Mr. Dutta, however, submits that the appellants have put in long years of service and this fact cannot be ignored from due consideration. For doing complete justice, it is contended, this Court must mould the relief in a manner where their appointments/ regularisation in service is saved without creating any precedent in this regard. Reliance is placed in M.A. Murthy v. State of Karnataka¸ reported in (2003) 7 SCC 517. 3. Mr. D. K. Mishra, learned senior counsel for the private respondents/writ petitioners submit that the policy decision contained in the Office Memorandum dated 04.08.2008 impinges upon the law of the land, post Umadevi (supra) era. Reliance is placed in M.A. Murthy v. State of Karnataka¸ reported in (2003) 7 SCC 517. 3. Mr. D. K. Mishra, learned senior counsel for the private respondents/writ petitioners submit that the policy decision contained in the Office Memorandum dated 04.08.2008 impinges upon the law of the land, post Umadevi (supra) era. According to him, an executive order which is contrary to the principles laid down in Umadevi (supra) is ex-facie void and no regularisation could have been effected in favour of the appellants on the basis of the said Office Memorandum, more so, when it had been issued after 10.04.2006 i.e. the date when judgment in Umadevi (supra) was rendered. Mr. Mishra submits that each of the appellants rendered less than 10 (ten) years of service, having regard to their initial dates of appointment on contract basis and their dates of regularisation in service. The relevant dates furnished by Mr. Mishra on the basis of the materials on record are: Appellant No. Name Date of Appointment Date of Regularisation Period (approx.) 1. Dr. Thepfudihoulie Shuya 12/08/03 16.03.2009 5 Y-7 M 2. Dr. A. Moatemjen 16.05.2002 18.06.2011 9 Y-1 M 3. Dr. T. Vekuto Sema 05/09/05 18.06.2011 5 Y-9 M 4. Dr. Tolto Metha 12/06/06 18.06.2011 5Y 5. Dr. Michael Imti Imchen 12/06/06 18.06.2011 5 Y 6. Dr. Sentirenla Longchar 10/05/07 13.09.2011 4 Y-4 M 7. Dr. I. Aonungla 10/05/07 13.09.2011 4 Y-4 M 8. Dr. V. Qhelitoli Sema 10/05/07 13.09.2011 4 Y-4 M 9. Dr. Chubayangla 10/05/07 13.09.2011 4 Y-4 M 10. Dr. Yovino Mekro 13.12.2007 13.09.2011 3 Y-9 M 11. Dr. Longeronen Ao 13.12.2007 13.09.2011 3 Y-9 M It is submitted that having regard to the above and the principles laid down in para 53 of Umadevi (supra) and that of para 11 in State of Karnataka v. M.L. Kesari, reported in (2010) 9 SCC 247 , the appellants could not have been given the benefit of regularisation in service. Mr. Mishra further contends that the very appointment of the appellants on stop-gap basis were contrary to the statutory provisions under the relevant Nagaland Animal Husbandry and Veterinary Service Rules, 1979. Sub-rule (1) of Rule 6 thereof contemplates recruitment to the service only by direct recruitment by selection and by promotion from amongst the members of service, both in the manner and to the extent laid down in the Rules. Sub-rule (1) of Rule 6 thereof contemplates recruitment to the service only by direct recruitment by selection and by promotion from amongst the members of service, both in the manner and to the extent laid down in the Rules. Although concession to the method of recruitment is envisaged under sub-rule (3) of Rule 6, Mr. Mishra submits that the same are not attracted to provide any advantage to the appellants. Under the said sub-rule (3), a leeway is provided for adoption of any method of recruitment to the service other than those specified in sub-rule (1), but the same is hedged with strict conditions of the Government being of the opinion that the same is required in the exigency of service with prior consultation with the Nagaland Public Service Commission. The marked absence of compliance of such conditions, according to Mr. Mishra, goes to the root of the matter and the State respondents are estopped from raising any plea that the appointments of the appellants had been made in exercise of the power under sub-rule (3). Neither is the case that the appellants had been appointed in terms of Rule 7 of the Rules, which lays down the procedure for recruitment by competitive examination. Countering the arguments of Mr. Dutta as regards moulding of relief for having put in substantial number of years in service, Mr. Mishra submits that the appellants are not entitled to seek equity on that count also. Reliance is placed in the case of Dr. Surinder Singh Jamwal v. State of J & K, reported in (1996) 9 SCC 619 . In the said case the appellants therein had put in more than 13 years of service on ad-hoc basis and were continuing as such. They claimed regularization of service. The matter having reached the Apex Court, their claim was answered by holding that the ad-hoc appointments would be only temporary appointments dehors the rules, pending regular recruitment, without conferring any right to regularisation of service. Lastly, Mr. Mishra contends that there is absolutely no scope for making interference to the judgment of the learned Single Judge, more particularly in view of the settled principles in Umadevi (3) (supra) and M.L. Kesari (supra). 4. Mr. Lastly, Mr. Mishra contends that there is absolutely no scope for making interference to the judgment of the learned Single Judge, more particularly in view of the settled principles in Umadevi (3) (supra) and M.L. Kesari (supra). 4. Mr. V. Banerjee, learned Advocate General for the State of Nagaland, opens by saying that any interference made to the Office Memorandum dated 04.08.2008 would have far reaching consequences as benefits thereof were not only confined to the appellants herein but to many others. According to him the said Memorandum had its source in sub-rule (3) of Rule 6 of the Rules and does not militate against the principles laid down in Umadevi (3) (supra). He submits that perhaps regularisation had been made as per procedure under sub-rule (3) of Rule 6 although no materials had been placed before neither the Court nor any pleadings made in that regard in the Affidavit-in-opposition filed in the writ proceedings. Referring to the counter affidavit so filed, Mr. Banerjee submits that the belated challenge made to the regularisation orders are hit by the principles of delay and laches. Also, the respondents herein/writ petitioners never challenged the Office Memorandum dated 04.08.2008 at the relevant point of time. Further contention is that the employees of the Veterinary Department are not only governed under the Rules but also under policies/general Memorandums issued from time to time. In so far as the appellants are concerned, they were appointed against existing vacancies. It is argued that to overcome acute shortage of staff, the Department makes appointment on contract basis from amongst the candidates who applies for appointment against vacancies arising out of study leave/deputation and also against regular vacancies as stop-gap arrangements before making requisition through Nagaland Public Service Commission. In that view of the matter, there was no question of any discrimination and arbitrary action on the part of the state respondents. Such appointments had been made as per sub-rule (3) of Rule 6 or spirit thereof, in as much as, some play in the joints is to be permitted to the respondent authority. Mr. Banerjee also places reliance in Nihal Singh v. State of Punjab, reported in (2013) 14 SCC 65 for the proposition that the appointments having been made by following a rational procedure, the same do not entail interference. 5. We have heard the learned counsels for the parties and have perused the materials on record. Mr. Banerjee also places reliance in Nihal Singh v. State of Punjab, reported in (2013) 14 SCC 65 for the proposition that the appointments having been made by following a rational procedure, the same do not entail interference. 5. We have heard the learned counsels for the parties and have perused the materials on record. 6. The appointment letters of the appellants apparently shows that the same were made on contract basis, either for a period of six months or one year or unspecified period against Study Leave/Lien Vacancy/Voluntary Retirement Vacancies etc. Their service was continued beyond periods prescribed and then came to be regularized in terms of the Office Memorandum dated 04.08.2008. Their initial appointment was apparently not in terms of Rule 6 of the Rules. The method of recruitment to Nagaland Animal Husbandry and Veterinary Services, at the relevant time, was governed by Rule 6 of the 1979 Rules. The relevant aspect of Rule 6 is produced below: "1. Recruitment to the service after the commencement of these Rules shall be by the following methods:- (a) Direct recruitment by selection in accordance with the provisions of the Rules: (b) Promotion from amongst the members of service in the manner and to the extent laid down in the Rule. 2................................................................... 3. Notwithstanding anything contained in Sub-Rule (1), if in the opinion of the Government the exigencies of the service so required, the Government may, by order, after consulting the Commission, if necessary adopt any method of recruitment to the service other than those specified in the said Sub-Rule." Generally speaking, the appointment of the appellants were made dehors the procedure under Rule 6 of the Rules. Even if an argument is advanced that the same had been made in exigency of service by following the procedure under sub-rule (3) above, there is no material placed before the Court or any pleadings made to the effect that the conditions precedent for invoking sub-rule (3) had been complied with. 7. The appellants were regularized in the service by taking recourse to the Office Memorandum dated 04.08.2008. The fulcrum being such, it would now be essential to reproduce the said Office Memorandum dated 04.08.2008. "Government of Nagaland Department of Personnel and Administrative Reforms (Administrative Reforms Branch) No. AR-5/ASSO/98 Dated Kohima, the 4th August 2008. Memorandum Sub: Regularisation of Contract/Ad-Hoc appointments against sanctioned post. The fulcrum being such, it would now be essential to reproduce the said Office Memorandum dated 04.08.2008. "Government of Nagaland Department of Personnel and Administrative Reforms (Administrative Reforms Branch) No. AR-5/ASSO/98 Dated Kohima, the 4th August 2008. Memorandum Sub: Regularisation of Contract/Ad-Hoc appointments against sanctioned post. In super-session of this Department Memorandum of even number dated 18th August 2004 and dated 23/8/2007, the Governor of Nagaland is pleased to order that contract employees may be regularize by the Department's who have completed more than 3 (three) years of continuous service on contract/ad-hoc against sanctioned post only. However such regularization of contract/ad-hoc employee shall not apply to posts where there are pending court cases or where the posts have already requisitioned for filling through NPSC. The following terms and conditions will be applied for regularisation of the contract/ad-hoc employees: 1. Employees having more than ten years of service (iv) there is a sanctioned post; (v) the employee fulfils all the eligibility criteria for the post including the requisite educational qualification; and, (vi) the performance of the employee has been satisfactory in the service. The concerned Department will submit specific cases to the Government for approval after obtaining the recommendation of a Screening Committee with the following composition: Chief Secretary - Chairman Home Commissioner-Member Principal Secretary (P & AR)-Member Commissioner & Secretary (Law-Member) Joint Secretary (P & AR)-Member Secretary The Department will furnish to the Member Secretary of the Screening Committee details of the employees proposed for regularization with relevant documents like original appointment order, certificates of educational qualification, date of birth, ACRs and result of the screening test wherever stipulated. (iii) The performance of the employee has been satisfactory in the service an examination (written and viva-voce) to test their suitability should be conducted by the concerned Departments under the Chairmanship of the Head of the Administrative Department with representative from the P & AR Department and ATI, Nagaland, Kohima. Qualifying marks should be laid down in advance and only those who qualify such a screening test should be considered for regularisation by following the procedure as mentioned in the para 1 above. 3. All Departments having contract/ad-hoc employees shall consolidate and submit the names of the contract/ad-hoc employees in toto and not in piecemeal. Sd/- Lalhuma Chief Secretary to the Government of Nagaland" 8. 3. All Departments having contract/ad-hoc employees shall consolidate and submit the names of the contract/ad-hoc employees in toto and not in piecemeal. Sd/- Lalhuma Chief Secretary to the Government of Nagaland" 8. The aforesaid Office Memorandum envisages regularisation of contract/ad-hoc employees who completed more than the specified years of continuous service mentioned therein in the said capacity and against sanctioned post. Apart from the eligibility criteria, the procedure contemplated is that the department would submit specific cases to the Government for approval after obtaining the recommendation of the Screening Committee comprising of members indicated therein. Suitability of the employees were to be tested by conducting examination (written and viva-voce) by the concerned departments under the Chairmanship of the Head of the Administrative Department with representative from the P&AR Department and ATI, Nagaland, Kohima. It was further stipulated that only those who qualified in the Screening Test would be considered for regularisation. In the year 2009 and 2011, as in the Chart given above, the contract service of appellants came to be regularized. The orders of regularisation show that the same had been made only on the approval of the Cabinet. No material has also been placed as to whether the procedure prescribed for making regularisation in terms of the Office Memorandum dated 04.08.2008 had been complied with. Be that as it may, the primary issue is whether regularisation could take place on the basis of the said Office Memorandum dated 04.08.2008, having regard to the law of the land laid down in Umadevi (supra) and M.L. Kesari (supra). Pertinent to mention, each of the appellants had served less than ten years from their initial date of appointment until the date of their regularisation in service. 9. In Umadevi (supra), the Apex Court held that when persons gets engaged as contractual worker which is not based on proper selection under the relevant rules or procedure, such persons cannot invoke the theory of legitimate expectation for being confirmed in the post, in as much as, such appointment to the post can only be made by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. In such cases, it also cannot be held that the State held out any promise while engaging such persons, either to continue them where they are or to make them permanent. In such cases, it also cannot be held that the State held out any promise while engaging such persons, either to continue them where they are or to make them permanent. It was held that the State cannot constitutionally make such a promise. A caveat was also expressed that in the name of individualizing justice, it would be impermissible to turn a blind eye to the constitutional scheme and the right of the numerous as against the few who are before the Court. In this respect, such persons are not entitled to advance argument based on Article 21 of the Constitution of India. At para 53 of Umadevi, the Apex Court was alive to situations where irregular appointments had been extended to duly qualified persons in duly sanctioned vacant post where the employee continued to work for ten years or more but not under the cover of orders of the Courts or Tribunals. In such situation, a direction was made to the Union of India, the State Governments and their instrumentalities to take steps to regularize, as a one-time measure, the services of such irregularly appointed who have worked for ten years or more in duly sanctioned post without the intervention of orders of the Courts or Tribunals. The said authorities were further directed to ensure that regular recruitment's are undertaken to fill those vacant sanctioned post that are required to be filled up, in cases where temporary employees or daily wagers are being employed. The steps to be taken, as above, were directed to be set in motion within 6 (six) months from 10.04.2006, which is the date when the judgment in Umadevi was rendered. A clarificatory note was also expressed that regularisation, if any already made, but not sub-judice, need not be reopened. However, there must not be any further bypassing of the constitutional requirement and regularizing or making permanent those not duly appointed as per the constitutional scheme. 10. In M.L. Kesari (supra), a two Judge Bench of the Apex Court had considered the twofold object behind the direction in para 53 of Umadevi. First was to ensure that those who had put in more than ten years of continuous service without the protection of any interim orders of Courts or Tribunals before the date of decision in Umadevi, are to be considered for regularisation in view of long period of service. First was to ensure that those who had put in more than ten years of continuous service without the protection of any interim orders of Courts or Tribunals before the date of decision in Umadevi, are to be considered for regularisation in view of long period of service. Second was to ensure that the State authorities do not perpetuate the practice of engaging persons on daily wage/ad-hoc/casual basis for long periods and then periodically regularise them on ground that they have served for more than ten years. It was held that the true effect of the direction in para 53 of Umadevi is at all persons who have worked for more than ten years as on 10.04.2006 [the date of decision in Umadevi] without the cover of any order of any Court or Tribunal, in vacant post and possessing requisite qualification would be entitled to be considered for regularisation. It was clarified that in cases where the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi, the same will not disentitle such employees the right to be considered for regularisation as a one-time measure in terms of the directions at para 53 in Umadevi. 11. In the instant case, none of the appellants had completed the minimum ten years of service as on 10.04.2006. From the Chart above, it is seen that the Appellant Nos. 1, 2 and 3 had been appointed prior to the date of decision in Umadevi and until the said date i.e. 10.04.2006 they had barely completed three years of service. In fact, the appellant no. 3 was in employment on contract basis for only about seven months. The rest of the appellants had been appointed after 10.04.2006 and were regularised in the year 2011. The exercise so undertaken clearly amounts to perpetuating the practice of employing person on ad-hoc/casual basis and then regularizing their services subsequently. The case of all the appellants are in direct conflict with the directions in Umadevi as well as the observation made in M.L. Kesari (supra). 12. As alluded to above, the appointments of the appellants had been made dehors the Rules. Regularisation was not made as per constitutional scheme but on the basis of an executive order which is in conflict with the directions in Umadevi. 12. As alluded to above, the appointments of the appellants had been made dehors the Rules. Regularisation was not made as per constitutional scheme but on the basis of an executive order which is in conflict with the directions in Umadevi. The plea of having put in long years of service cannot stand for any consideration as this Court cannot give a licence to an illegal act. Any concession made will only be in the realm of misplaced sympathy. On the question of alleged delay and laches on the part of the respondents herein/writ petitioners for the belated challenge made to the Office Memorandum dated 04.08.2008 and the orders of regularisation of the appellants, cannot be pressed to estop the writ petitioners from challenging the same. Admittedly, the State respondents had taken recourse to illegal and arbitrary action which was all-pervasive. The action of the State respondents was clearly contrary to the law of the land. It is well settled that where an authority suffers from an inherent lack of jurisdiction, the principle of estoppel cannot apply. 13. In Nihal Singh (supra) and on the facts involved therein, the Apex Court was of the opinion that the process of selection adopted in identifying the appellants therein could not be said to be unreasonable and arbitrary. In that context, it was observed that in Umadevi the Court was dealing with appointments made without following any rational procedure in the lower rungs of various services of the Union and the States. Reliance placed on Nihal Singh (supra) by the learned Advocate General is wholly misplaced, in as much as, in the instant case no reasonable process of selection had been adopted either in the initial appointments of the appellants or at the time of regularizing their services. 14. The learned Single Judge by relying upon para 55 of Umadevi (3) held that the appellants having rendered long years of service, it would be inequitable if they are not permitted to compete along with other eligible candidates merely because they have become over aged. Direction was made for condoning the age bar of the appellants, facilitating their participation in the selection process to be undertaken. 15. Having regard to the discussions and findings above, we find no good and cogent ground to interfere with the judgment and order under appeal. Direction was made for condoning the age bar of the appellants, facilitating their participation in the selection process to be undertaken. 15. Having regard to the discussions and findings above, we find no good and cogent ground to interfere with the judgment and order under appeal. While affirming the same, the present appeal stands dismissed, however, without any order as to cost.