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2018 DIGILAW 1186 (GAU)

Imtiomen v. State of Nagaland

2018-08-10

LANUSUNGKUM JAMIR

body2018
JUDGMENT : LANUSUNGKUM JAMIR, J. 1. The petitioner is the land owner over which the Veterinary Dispensary/Veterinary Outpost at Molungkimong is located under Mokokchung District. The said Dispensary/Veterinary Outpost (VOP) was established in the year 1979 with the condition that petty contract works and appointment to Grade-IV post that may arise in the said Veterinary Dispensary/VOP at Molungkimong Village shall be given to the land owner. In terms of the agreement, construction work of office building of Veterinary Dispensary/VOP at Molungkimong was awarded to the land owner. Further, when a Grade-IV post of Chowkidar arose, the father of the petitioner nominated and recommended one Shri Lanutemjen for appointment and was accordingly appointed to the post of Chowkidar in the year 1980 who is still serving in the Department Another Grade-IV post of Medicine Carrier arose in the year 1980 and one Shri Imkonglemba was appointed to the said post on the nomination/recommendation of the father of the petitioner. The said appointments as well as the construction works undertaken for the office building by the land owners were done in terms of the verbal agreement entered between the Department and the land owner. The said Shri Imkonglemba who was appointed as Medicine Carrier under the Veterinary Dispensary/VOP in the year 1980 was to retire with effect from 30.04.2015 and therefore, the petitioner as a land owner submitted an application for appointment to the said post of Medicine Carrier at Veterinary Dispensary/VOP Molungkimong on 25.2.2015. A certificate was also issued by the Village Council of Molungkimong Village on 25.02.2015 certifying that the petitioner is the son of Shri Lidemnuken who is the land owner over which the Veterinary Dispensary/VOP at Molungkimong Village is located. A recommendation was also made by the Parliamentary Secretary, Agriculture & Chairman NSAMB, Nagaland on 25.02.2015 recommending the case of the petitioner for appointment on the basis of land ownership. However, the Government by letter dated 17.7.2015 approved the case of the respondent No. 5 who was serving as Medicine Carrier on contingency basis at VHC Chuchuyimlang under CVO Mokokchung for regularization against the retirement vacancy of the said Shri Imkonglemba. By the same approval letter dated 17.7.2015, the case of the petitioner was also approved for appointment as Medicine Carrier on contingency basis at VHC, Chuchuyimlang and temporarily attached at VOP, Molungkimong. By the same approval letter dated 17.7.2015, the case of the petitioner was also approved for appointment as Medicine Carrier on contingency basis at VHC, Chuchuyimlang and temporarily attached at VOP, Molungkimong. The said approval letter was issued on the approval of the Parliamentary Secretary, Veterinary & Animal Husbandry dated 16.7.2015. In terms of the approval letter dated 17.7.2015, the respondents issued an order dated 21.7.2015 regularizing the respondent No. 5 to the post of Medicine Carrier at VOP, Molungkimong and temporarily attached at VHC, Chuchuyimlang. By another order dated 21.7.2015, the petitioner was also appointed as Medicine Carrier on contingency basis at VHC, Chuchuyimlang and attached at VOP, Molungkimong. The present writ petition has been filed claiming that the petitioner should have been appointed as Medicine Carrier at Molungkimong on the basis of land ownership and not at Chuchuyimlang. Heard Mr. C.T. Jamir, learned senior counsel assisted by Mr. Yalemsen, learned counsel for the petitioner. Also heard Mr. T.B. Jamir, learned Senior Additional Advocate General, Nagaland appearing for the State respondents as well as Mr. Taka Masa, learned senior counsel assisted by Mr. Arenlong, learned counsel appearing for the respondent No. 5. 2. Mr. C.T. Jamir, learned senior counsel for the petitioner submits that when the land over which the Veterinary Dispensary/VOP was donated to the Department of Veterinary & Animal Husbandry for setting up the same, no compensation was taken by the father of the petitioner who was the land owner and instead, a verbal agreement was made that the contract works and Grade-IV appointment would be made to the land owner. Therefore, when the post of Medicine Carrier at Veterinary Dispensary/VOP Molungk-imong became vacant with effect from 30.4.2015, the State respondents should have appointed the petitioner to the vacant post of Medicine Carrier at Veterinary Dispensary/VOP, Molungkimong on the basis of his application dated 25.02.2015. Instead, by the approval letter dated 17.07.2015, the case of the petitioner was approved for appointment as Medicine Carrier on contingency basis at VHC, Chuchuyimlang and temporarily attached at Veterinary Dispensary/VOP, Molungkimong. By the same approval letter, the respondent No. 5 who was serving as Medicine Carrier at VHC, Chuchuyimlang was approved for regularization against the retirement vacancy of the said Shri Imkonglemba at Veterinary Dispensary/VOP, Molungkimong. By the same approval letter, the respondent No. 5 who was serving as Medicine Carrier at VHC, Chuchuyimlang was approved for regularization against the retirement vacancy of the said Shri Imkonglemba at Veterinary Dispensary/VOP, Molungkimong. It is submitted that the respondents could not have acted in terms of the approval letter dated 17.07.2015 inasmuch as, the petitioner has a right to claim for appointment on land ownership basis at Veterinary Dispensary/VOP, Molungkimong only in terms of the verbal agreement made in the year 1979. The right of the petitioner to claim for appointment on land ownership basis exists only at the Veterinary Dispensary/VOP, Molungkimong and not at VHC, Chuchuyimlang inasmuch as, the land was donated by the father of the petitioner at Molungkimong and not at Chuchuyimlang. Therefore, in terms of the approval letter dated 17.07.2015, the petitioner has been deprived to have been regularly appointed as Medicine Carrier at Veterinary Dispensary/VOP, Molungkimong. It is also submitted that the approval letter 17.07.2015 was issued on the approval of the Parliamentary Secretary, Veterinary & Animal Husbandry which is not in terms of the provision of the Rules of Executive Business. He submits that there are no specific statutory rules in the Department of Veterinary & Animal Husbandry and therefore, even if the Rules of Executive Business is not mandatory but only directory, the respondents should have adhered to the provision of the Rules of Executive Business wherein, there is no provision for the Parliamentary Secretary to give any approval. He also submits that in the meantime, the Government of Nagaland, Land Revenue Department issued a Notification dated 5.3.2018 notifying the policy with regard to appointment to Grade-IV post under the Government of Nagaland on land ownership basis. In the said Notification, Clause 3 (b) does not bar appointment on the basis of land ownership basis even if such agreements are verbally/orally made. He also submits that the Notification dated 5.3.2018 pertains to only lands donated for setting up of Administrative and Block Headquarters and therefore, as the present case pertains to the setting up of Veterinary Dispensary/VOP at Molungkimong, the Notification dated 5.3.2018 would have no application. He also submits that the Notification dated 5.3.2018 pertains to only lands donated for setting up of Administrative and Block Headquarters and therefore, as the present case pertains to the setting up of Veterinary Dispensary/VOP at Molungkimong, the Notification dated 5.3.2018 would have no application. The very action of the respondents in appointing the petitioner on contingency basis at VHC, Chuchuyimlang and ordering to be attached at Veterinary Dispensary/VOP, Molungkimong by the order dated 21.07.2015 would clearly indicate that the petitioner is the land owner of Veterinary Dispensary/VOP at Molungkimong. As the petitioner is the rightful land owner over which the Veterinary Dispensary/VOP is located at Molungkimong, the regularization order dated 21.07.2015 issued in favour of the respondent No. 5 should be set aside and quashed and a direction be issued to the respondents to appoint the petitioner as Medicine Carrier at Veterinary Dispensary/VOP, Molungkimong. 3. Mr. T.B. Jamir, learned Senior Additional Advocate General, Nagaland on the other hand, submits that the land owners over which the Veterinary Dispensary/VOP, Molungkimong is located has been adequately compensated inasmuch as, 2 (two) Grade-IV posts have already been given to the land owner as well as contract work was awarded to the land owners for construction of the office building of the Dispensary, Molungkimong. Therefore, the petitioner cannot claim for appointment on the basis of land ownership in perpetuity. It is submitted that the respondent No. 5 was the lone Medicine Carrier and therefore, considering her long service, she was regularized to the vacant post that arose at Molungkimong and was thereafter, temporarily attached at VHC, Chuchuyimlang. The petitioner is therefore, not an aggrieved person inasmuch as, the land owner has been duly compensated. He also submits that the Notification dated 5.03.2018 provides that employment of land owner, if permitted by a verifiable and valid agreement, is limited to the person first appointed as land owner in Government service and does not entitle his descendants for further employment on his retirement from service inasmuch as, it is not the policy of the Government to provide employment to the land owner in perpetuity. He therefore, submits that in terms of the new policy of the Government of Nagaland as notified in the Notification dated 05.03.2018, the petitioner has no right to claim for appointment on the basis of land ownership. 4. Mr. He therefore, submits that in terms of the new policy of the Government of Nagaland as notified in the Notification dated 05.03.2018, the petitioner has no right to claim for appointment on the basis of land ownership. 4. Mr. Taka Masa, learned senior counsel appearing for the respondent No. 5 while endorsing the submissions made by the learned Senior Additional Advocate General, Nagaland also submits that the respondent No. 5 was the only Medicine Carrier in the Department serving under the Mokokchung District and therefore, when the vacancy of Medicine Carrier arose at Veterinary Dispensary/VOP, Molungkimong, her case was regularized against the said vacancy by the order dated 21.07.2015 in terms of the approval letter dated 17.07.2015 and was temporarily attached at VHC, Chuchuyimlang. He submits that the Rules of Executive Business has been framed under Article 166 of the Constitution of India and it is only an executive instruction for transaction of executive business which is only directory and not mandatory. Therefore, any infraction of the provision of the Rules of Executive Business would not vitiate the approval letter dated 17.7.2015 nor the orders, both dated 21.7.2015. He also submits that the Notification dated 05.03.2018 has clearly notified the policy decision of the Government of Nagaland with regard to appointment on land ownership basis and therefore, the petitioner cannot claim for appointment on the basis of land ownership to the said post of Medicine Carrier at Veterinary Dispensary/VOP, Molungkimong as a matter of right. In that view of the matter, he submits that there is no merit in the writ petition and the same deserves to be dismissed. 5. I have considered the submissions forwarded by the learned counsel for the parties. 6. There is no dispute at the bar that the land for setting up of Veterinary Dispensary/VOP at Molungkimong was donated by the father of the petitioner. There was a verbal agreement for awarding petty contact works and appointment to Grade-IV post. It is also not disputed that in terms of the verbal agreement, contract works was awarded for construction of the office building of the Veterinary Dispensary/VOP, Molungkimong to the land owner. Further, one Lanutemjen was appointed to the post of Chowkidar in the year 1980 on the nomination/recommendation made by the father of the petitioner who was the land owner. It is also not disputed that in terms of the verbal agreement, contract works was awarded for construction of the office building of the Veterinary Dispensary/VOP, Molungkimong to the land owner. Further, one Lanutemjen was appointed to the post of Chowkidar in the year 1980 on the nomination/recommendation made by the father of the petitioner who was the land owner. Another person, Shri Imkonglemba was also appointed as a Medicine Carrier on the nomination/recommendation of the father of the petitioner. This would indicate that two appointments to Grade-IV posts in the year 1980 were made on land ownership basis. 7. The contention of the learned senior counsel for the petitioner that when there is no specific rules in the Department, the provision of the Rules of Executive Business should be followed has also been considered by this Court. The Rules of Executive Business framed under Article 166 of the Constitution of India are administrative in nature for governance of its business of the State Government and therefore, they are purely directive in nature and no order can be invalidated if there is breach of the said provision of the Rules of Executive Business. This has been held in the case of Crawford Bayley & Ors. Vs. Union of India & Ors, reported in (2016) 6 SCC 25. Therefore, this Court is of the considered opinion that though the approval letter dated 17.07.2015 was issued on the basis of the approval given by the Parliamentary Secretary, the same cannot vitiate the approval letter dated 17.07.2015 merely, because there has been some infringement of the provisions of the Rules of Executive Business. 8. The contention of the learned senior counsel for the petitioner that the Notification dated 05.03.2018 with regard to appointment to Grade-IV post under the Government of Nagaland on land ownership basis is applicable only to those lands donated for setting up of Administrative and Block Headquarters has also been considered by this Court. The Notification dated 05.03.2018 has to be read in its entirety and not in parts to the convenience of the parties. A reading of the Notification dated 05.03.2018 would clearly indicate that the policy of the Government of Nagaland with regard to the appointment to Grade-IV post on land ownership basis does not pertain only to Administrative and Block Headquarter but to any land that has been donated/acquired by the Government from the land owners. A reading of the Notification dated 05.03.2018 would clearly indicate that the policy of the Government of Nagaland with regard to the appointment to Grade-IV post on land ownership basis does not pertain only to Administrative and Block Headquarter but to any land that has been donated/acquired by the Government from the land owners. Therefore, the Notification dated 05.03.2018 does not pertain only to the Administrative and Block Headquarters. This is amplified by the language and the intent projected in the Notification dated 5.3.2018. In that view of the matter, the submissions of the learned senior counsel for the petitioner that the Notification dated 15.3.2018 pertains only to those Administrative and Block Headquarter is rejected. 9. A further consideration of the Notification dated 05.03.2018 would clearly indicate that compensation would be either employment or any other facilities including contract or supply orders. This would clearly indicate that the land owners are not entitled to both employment and contract works or supply orders. If the land owners avail employment they will not be entitled to contract works or supply order and vice-versa irrespective of any agreement that might have been entered between the land owners and the Government. The Notification also clearly indicates that it is not the policy of the Government to provide employment to the land owner in perpetuity. Therefore, if the land owners have been given one time appointment, the dependents would have no claim to any further Government employment on the basis of land ownership. 10. Coming to the case in hand, the land owner of the Veterinary Dispensary/VOP, Molungkimong has been awarded construction of Dispensary building as well as given appointment on land ownership basis to the post of Chowkidar and Medicine Carrier in 1980 on the basis of nominations/recommendations of the father of the petitioner. Therefore, the land owners over which the Veterinary Dispensary/VOP, Molungkimong is located are barred from claiming any Government employment on the basis of land ownership in future as they have been adequately compensated in terms of the Notification dated 05.03.2018. 11. In the facts and circumstances of what has been discussed herein above, there is no merit in the writ petition and the same is accordingly dismissed. 12. No costs.