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2018 DIGILAW 1583 (GAU)

Paukuleu v. State of Nagaland

2018-11-05

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. N. Mozhui, learned counsel for the petitioner. Also heard Mr. C.T. Jamir, learned senior counsel for respondent No. 5 and Ms. A. Ayemi, learned Government Advocate for the State respondent Nos. 1 to 4. 2. The petitioner being an indigenous inhabitant of Peren district made an application offering his candidature against a vacant post of Peon in the office of the Inspector of Taxes, Peren where the vacancy was caused upon the superannuation of one Mr. Raguidau Ndang. The petitioner makes his claim for being appointed against the vacant post of Peon on the basis of the Office Memorandum dated 4.6.2016 wherein, it is provided that all direct recruitment to the vacant post in grade-IV in the district establishment shall be filled up by an indigenous inhabitant of the respective district. Accordingly, it is the claim of the petitioner that he being an indigenous inhabitant of Peren district and vacancy of Peon having occurred in the office of the Inspector of Taxes, Peren, he is entitled for appointment under the said Office Memorandum. Another claim of the petitioner is that the grandfather of the petitioner had donated certain land over which the office of the Inspector of Taxes, Peren has been established and therefore, being the legal heir of the land owner, he is also entitled for such appointment. 3. In the present writ petition, the petitioner is aggrieved by the contents of the communication dated 12.4.2017 of the Officer on Special Duty, (Finance) of the Finance Department, Government of Nagaland addressed to the Commissioner of Taxes, Dimapur. As per the said communication, the respondent No. 5 Smti. Alemla has been approved for being appointed to the post of Peon in the establishment of the Inspector of Taxes, Peren. The petitioner is also aggrieved by the consequential order of April 2017 under the signature of Commissioner of Taxes, Dimapur whereby the respondent No. 5 is appointed as Peon in the office of the Inspector of Taxes, Peren. 4. Mr. The petitioner is also aggrieved by the consequential order of April 2017 under the signature of Commissioner of Taxes, Dimapur whereby the respondent No. 5 is appointed as Peon in the office of the Inspector of Taxes, Peren. 4. Mr. N. Mozhul, learned counsel for the petitioner assails the aforesaid communication containing the approval as well as the order of appointment of the respondent No. 5 on the ground that as per the O.M. dated 4.6.2016, the respondent No. 5 could not have been appointed as she is not an indigenous inhabitant of Peren district On the other hand, it is the contention of Mr. N. Mozhul, learned counsel for the petitioner that the petitioner who is the only indigenous inhabitant is alone entitled for such appointment. Further, the contention has also been raised that the petitioner being the legal heir of the land owner where the office of the Inspector of Taxes is located, the petitioner is entitled to be appointed by virtue of being legal heir. 5. Against the contention of the petitioner raising the claim that by virtue of being the legal heir of land owner, he is entitled to be appointed, Mr. C.T. Jamir, learned senior counsel for the respondent No. 5 submits that although the land in question was donated by the grandfather of the petitioner but such donation was made free of cost meaning thereby, the grandfather intended that no claim would be made either by him or his descendants for appointment in Government job on the basis of such donation. 6. On perusal of the document indicating the land, prima facie it appears that the contention of Mr. C.T. Jamir, learned senior counsel is acceptable inasmuch as the land was donated by the grandfather of the petitioner without retaining his claim for any appointment in Government job in lieu of the donation of land. Accordingly, the claim raised by the petitioner for appointment as Peon in the office of Inspector of Taxes, Peren on the basis of being a legal heir of the land donor is found to be unacceptable. 7. As regard the other contention of the petitioner, Mr. Accordingly, the claim raised by the petitioner for appointment as Peon in the office of Inspector of Taxes, Peren on the basis of being a legal heir of the land donor is found to be unacceptable. 7. As regard the other contention of the petitioner, Mr. C.T. Jamir, learned senior counsel for respondent No. 5 contends that presently, the office of the Inspector of Taxes, Peren is functioning from Dimapur and therefore, it no longer can be construed to be a post to be filled up by indigenous inhabitant of Peren district. Further, the respondent No. 5 is a resident of Dimapur district and the present office of the Inspector of Taxes being functioning from Dimapur, she is entitled for such appointment. 8. Mr. N. Mozhul, learned counsel for the petitioner on the other hand contents that although the office of the Inspector of Taxes Peren is presently functioning from Dimapur but the same is only a temporary arrangement as because the office building at Peren requires some re-construction. In the circumstances according to Mr. Mozhui, it cannot be said that the office of the Inspector of Taxes Peren is an office of Dimapur district. 9. Ms. A. Ayemi, learned State counsel in the circumstances was required to obtain information as to whether the office of the Inspector of Taxes now functioning from Dimapur can be construed to be an office of the district establishment of Dimapur. Further, information was also required to be obtained as to what would be the meaning of the expression district office as appearing in the O.M. dated 4.6.2016. To that extent, as required, the State respondents have filed an affidavit stating that the office of the Inspector of Taxes, Peren presently functioning from Dimapur is a district office and as such covered by the provision of O.M. dated 4.6.2016. 10. As regard the question as to whether the office of the Inspector of Taxes Peren can be construed to be an office in the district of Dimapur, as it is presently functioning from Dimapur district, we have given our consideration to the same. Admittedly, the office of the Inspector of Taxes Peren is a district office which caters to the need of the administration of the Inspector of Taxes for Peren district. Admittedly, the office of the Inspector of Taxes Peren is a district office which caters to the need of the administration of the Inspector of Taxes for Peren district. May be for certain exigencies, presently the said office is located in Dimapur district but merely because it is located in Dimapur district, it cannot be construed to be an office of the Dimapur district. 11. In our view, in order to determine as to which district a particular district office belongs, the appropriate criteria would be to which district such office administratively caters to and not where it is actually located. As the office of the Inspector of Taxes, Peren caters to the administrative need of the district of Peren although it may be located in Dimapur district, we conclude that the said office is a district office of Peren and not that of Dimapur. On the basis of the aforesaid conclusion, we are agreeable to the contention of the petitioner that the respondent No. 5, admittedly not an indigenous inhabitant of Peren district, would not be entitled to appointment to the post of Grade-IV Peon in the office of the Inspector of Taxes, Peren. Any such conclusion that the respondent No. 5 would be so entitled would make it contrary of the provisions of the O.M. dated 4.6.2016. 12. In such view of the matter, the communication dated 12.4.2017 of the Officer on Special Duty, (Finance) of the Finance Department, Government of Nagaland and the order of April 2017 of the Commissioner of Taxes, Nagaland approving and appointing respectively, the respondent No. 5 as Peon in the office of the Inspector of Taxes, Peren are accordingly set aside. On the appointment of respondent No. 5 being set aside, it will now be upon the respondent authorities to consider the claim of the petitioner for being appointed as Grade-IV Peon if otherwise she is entitled. As the appointment of the respondent No. 5 has been interfered after being appointed and continuing in office for some period of time, we also provide that the respondent authorities if otherwise agreeable and if any such post is available or may be available may consider the respondent No. 5 against such post. As the appointment of the respondent No. 5 has been interfered after being appointed and continuing in office for some period of time, we also provide that the respondent authorities if otherwise agreeable and if any such post is available or may be available may consider the respondent No. 5 against such post. Further as because of the intervening circumstances, the respondent No. 5 had in the meantime became age barred for Government job, the respondent authorities may also give a due consideration condoning the age of respondent No. 5 if otherwise so advised. 13. In terms of the above, the writ petition is allowed.