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2018 DIGILAW 992 (GAU)

C. Alem Sangtam v. N. Atovi Sema

2018-06-26

LANUSUNGKUM JAMIR, SONGKHUPCHUNG SERTO

body2018
JUDGMENT : Lanusungkum Jamir, J. 1. W.A. No. 18(K) of 2013 and W.A. No. 19(K) of 2013 are being disposed of by this common judgment and order. 2. One post of Medicine Carrier arose at the Animal Husbandry Centre at Sitimi under the establishment of District Veterinary Officer (DVO), Kiphire. By a communication dated 06.10.2010 addressed to the Director of Animal Husbandry and Veterinary, Nagaland, Kohima, Government approval for appointment of 13 (Thirteen) persons of Grade-IV under Animal Husbandry and Veterinary was conveyed by the Government, wherein the said post of Medicine Carrier was also included at Serial No. 13. By the said approval letter dated 06.10.2010, the appellant was approved to be appointed as Medicine Carrier under the District Veterinary Officer, Kiphire. The respondent No. 1, who was also claiming for appointment to the said post of Medicine Carrier at DVO, Kiphire on the basis of landownership being aggrieved with the approval letter dated 06.10.2010 filed W.P.(C) No. 166(K) of 2010 challenging the said approval letter on the ground that he is the landowner of the land where the District Veterinary Office is established on the basis of an agreement dated 07.02.2009. By order dated 24.06.2011, W.P.(C) No. 166(K) of 2010 was disposed of by the learned Single Judge directing the Official respondents to have afresh consideration of the matter and if required, both the petitioner and the respondents may be given personal hearing towards finalization of the matter. Thereafter, by a communication dated 15.09.2011 written by the Deputy Secretary to the Government of Nagaland, Animal Husbandry and Veterinary Department and addressed to the Additional Director, Animal Husbandry and Veterinary Department stated that the Government had examined both the cases and as per records, the agreement dated 7.2.2009 basing on which the present respondent No. 1 is claiming appointment as landowner is found to be unauthorised and against the policy decision of the Government stipulated in the notification dated 22.7.2005. By the said communication, the approval for appointment of the present appellants as Medicine Carrier was reaffirmed. 3. Being aggrieved by the letter dated 15.09.2011, the present respondent No. 1 as writ petitioner filed W.P.(C) No. 238(K) of 2011 challenging the letter dated 15.09.2011. The learned Single Judge by an order dated 28.09.2011 passed an interim order staying the communication dated 15.09.2011. 3. Being aggrieved by the letter dated 15.09.2011, the present respondent No. 1 as writ petitioner filed W.P.(C) No. 238(K) of 2011 challenging the letter dated 15.09.2011. The learned Single Judge by an order dated 28.09.2011 passed an interim order staying the communication dated 15.09.2011. The present appellant filed C.M.C. No. 119(K) of 2011 praying for vacation/modification/alteration of the interim order dated 28.09.2011 passed in W.P.(C) No. 238(K) of 2011. The learned Single Judge by order dated 30.11.2011 in C.M.C. No. 119(K) of 2011 vacated the interim order dated 28.09.2011 after hearing the parties. Thereafter, the state respondents by order dated 14.02.2012 appointed the appellant to the post of Medicine Carrier at Veterinary and Husbandry, Sitimi under the establishment of District Veterinary Office, Kohima an temporary basis for a period of one year w.e.f. the date of joining to the post. Being further aggrieved, the respondent No. 1 as writ petitioner again filed W.P.(C) No. 31(K) of 2012 challenging the appointment order dated 14.02.2012. The aforesaid two Writ Petitions, namely, W.P.(C) No. 238(K) of 2011 and W.P.(C) No. 31(K) of 2012 were disposed of by the learned Single Judge by a common judgment and order dated 20.09.2013 setting aside the approval letter dated 06.10.2010 and the order dated 14.02.2012 by which the appellant was appointed as Medicine Carrier in the Animal Husbandry Centre at Sitimi. Further, direction was also made to the State respondents to consider the case of the respondent No. 1/writ petitioner for appointment against Grade-IV post in the Veterinary Health Centre, Kiphire on the basis of the agreement dated 07.02.2009 as well as other documents which were attached with the Writ Petitions at the earliest but not later than 3 (Three) months from the date of receipt of a certified copy of the said judgment and order. Accordingly, the state respondents by order dated 25.11.2013, in pursuance to the judgment and order dated 11.09.2013 appointed the respondent No. 1/writ petitioner to the post of Medicine Carrier at Veterinary Health Centre, Sitimi under the establishment of District Veterinary and Animal Husbandry Officer, Kiphire. Being aggrieved by the common judgment and order dated 20.09.2013 of the learned Single Judge, the appellant has filed the present two Appeals. 4. Heard Mr. C.T. Jamir, learned Senior Counsel assisted by Mr. N. Longkumer, learned counsel appearing for the appellant. Also heard Ms. Being aggrieved by the common judgment and order dated 20.09.2013 of the learned Single Judge, the appellant has filed the present two Appeals. 4. Heard Mr. C.T. Jamir, learned Senior Counsel assisted by Mr. N. Longkumer, learned counsel appearing for the appellant. Also heard Ms. Z. Zhimomijearned counsel appearing for the respondent No. 1 and Mr. K. Sema, learned Senior Addl. AG, Nagaland assisted by Ms. Livika, learned Government Advocate for the proforma respondent Nos. 2 to 4. 5. Mr. C.T. Jamir, learned Senior Counsel appearing for the appellant submits that the only basis for challenging the appointment of the appellant by the respondent No. 1 in the Writ Petition is the agreement dated 7.2.2009. He submits that prior to the agreement dated 07.02.2009, landowners over whose lands the District Veterinary Office is located had made an agreement dated 14.2.1972 with the State respondents by donating their land for use by the Government for Sitimi Circle Headquarter and other departmental requirements. The said land was also donated as being free from all encumbrances. In the said agreement which was signed on 14.02.1972 there is no stipulation for making any appointments on the basis of land ownership. He submits that when the post of Medicine Carrier at District Veterinary Office, Kiphire fell vacant, the appellant had made his application requesting for appointment to the said vacant post. The respondent No. 1 has also made an application for the appointment to the said vacant post of Medicine Carrier on the basis of land ownership. He also submits that the state respondents on consideration of the applications of both the appellant and the respondent No. 1 had thereafter, taken a decision and conveyed its approval in favour of the appellant by the letter dated 06.10.2010. Learned Senior Counsel also submits that the agreement dated 7.2.2009 on the basis of which the respondent No. 1 is claiming for appointment on land ownership basis is not tenable in law inasmuch as the said agreement is in contravention to the notification dated 26.07.2005 issued by the Government of Nagaland, Land Revenue Department wherein it is provided that no land shall be acquired free of cost and all land shall be acquired on payment of full compensation as determined by law and that no further conditions for employment in service or contractual works should be entertained. The said notification dated 26.7.2005 was in operation when the said agreement dated 07.02.2009 was made. He therefore, submits that the agreement dated 07.02.2009 does not have any legal force and therefore, the learned Single Judge while considering the matter had erred in law by setting aside the approval letter dated 06.10.2010 as well as the appointment order dated 14.02.2012 in respect of the appellant. He submits that the learned Single Judge had erred by not taking into consideration that while the land was donated to the Government in the year 1972 there was no condition for making any appointments on the basis of land ownership and that the second agreement dated 07.02.2009 was in contravention to the notification dated 26.07.2005. The letter dated 15.09.2011 had therefore, rightly declared the agreement dated 07.02.2009 as unauthorized by the State respondents inasmuch as the agreement dated 07.02.2009 was not in consonance with the notification dated 26.07.2005. The learned Senior Counsel while relying on the affidavit filed by the state respondents wherein the Notification dated 05.03.2018 notifying the latest policy decision of the State Government with regard to appointments to Grade-IV post under the Government of Nagaland which has been annexed, submits that as the initial agreement dated 14.02.1972 was made without any conditions for appointment on land ownership basis, the case of the respondent No. 1 falls under Clause 2 of the said Notification dated 05.03.2018 wherein it is provided that all cases where Administrative Headquarters and Block Headquarters were set up in various parts of the State on lands donated freely by the individuals/villages or people of that area should not be reopened for compensation or employment in consonance with the policy brought out vide Memorandum dated 20.06.1977. He submits that in view of the new policy notified by the Government of Nagaland, the respondent No. 1 has no semblance of any claim for appointment on land ownership basis inasmuch as the agreement dated 14.02.1972 does not provide for any appointments to be made on land ownership basis while the land was donated. 6. He submits that in view of the new policy notified by the Government of Nagaland, the respondent No. 1 has no semblance of any claim for appointment on land ownership basis inasmuch as the agreement dated 14.02.1972 does not provide for any appointments to be made on land ownership basis while the land was donated. 6. Learned Senior Counsel further submits that the learned Single Judge had failed to take into consideration the materials available on record with regard to the validity and legality of the agreement dated 07.02.2009 and that the finding of the learned Single Judge had revalidated the illegal agreement, i.e., agreement dated 07.02.2009 which is also against the Government Notification dated 26.07.2005 and also that the learned Single Judge had failed to consider the fact that when the agreement dated 07.02.2009 was executed, the Notification dated 26.07.2005 was already in operation. Therefore, the impugned judgment and order dated 20.9.2013 should be set aside and the approval letter dated 06.10.2010 and appointment order of the petitioner dated 14.02.2012 should be revived. 7. Ms. Z. Zhimomi, learned counsel appearing for the respondent No. 1 submits that after the agreement dated 14.02.1972 was executed between the landowners and the official respondents, no appointment was given to any of the land owners and the respondents had appointed persons who were not land owners and therefore, when the post of Medicine Carrier fell vacant, the respondent No. 1 as a rightful landowner had approached the respondents for appointment on land ownership basis. She submits that after the agreement dated 14.02.1972 was signed, another agreement dated 07.02.2009 was signed between the respondents and the land owners, wherein it was agreed that appointment to non-technical Grade-IV employees will be given to the land owners on rotation basis starting from the landowner who have given larger area of land. She also submits that the State respondents had illegally issued the approval letter dated 06.10.2010 approving the case of the appellant for appointment as Medicine Carrier, though no application was made by the appellant. Thus, the same would indicate the arbitrary exercise of power by the State respondents while deciding to appoint the appellant as Medicine Carrier. It is also submitted that the Notification dated 05.03.2015 issued by the Government of Nagaland notifying the new policy with regard to appointments to Grade-IV post of landownership basis has only prospective effect. Thus, the same would indicate the arbitrary exercise of power by the State respondents while deciding to appoint the appellant as Medicine Carrier. It is also submitted that the Notification dated 05.03.2015 issued by the Government of Nagaland notifying the new policy with regard to appointments to Grade-IV post of landownership basis has only prospective effect. Further, she also submits that the case of the petitioner would fall under Clause 1(b) and Clause 3(b) of the Notification dated 5.3.2018, and therefore, the department should reconsider the matter by taking into consideration the agreement dated 7.2.2009. Learned Counsel also submits that there is no error in the judgment and order dated 20.09.2013 of the learned Single Judge inasmuch as the same has been passed after considering all the materials available on record and that the learned Single Judge had come to the conclusion that despite there being no agreement between the original land owners and the Government for providing any job to the owners of such land, in view of the agreement dated 07.02.2009, the State respondents cannot shed of its responsibility to provide job(s) in the establishment of the District Veterinary Office to the writ petitioner and other persons who are similarly situated in terms of the agreement dated 07.02.2009. The learned Single Judge on consideration of the facts and circumstances of the case had therefore interfered with the approval letter dated 06.10.2010 and the order dated 14.02.2012 and therefore, no interference is required in the judgment and order dated 20.09.2013. 8. Mr. K. Sema, learned Senior Addl. AG appearing on behalf of the State respondents submits that a perusal of the agreement, dated 14.02.1972 would clearly indicate that the said agreement was signed by the landowners in the presence of the Circle Officer, Kiphire, Tuensang. Further, the agreement would clearly indicate that it was the collective decision of the land owners to donate the land to the Government of Nagaland free from all encumbrances to be used by the Government. He submits that such donation was made without any consideration and it was a unilateral conveyance. Learned Senior Addl. AG further submits that a consideration of the agreement dated 07.02.2009 clearly indicates that the same is an unsworn affidavit and not an agreement. Therefore, the respondent No. 1 cannot rely on the affidavit dated 7.2.2009 for getting appointment on land-ownership basis. Learned Senior Addl. AG further submits that a consideration of the agreement dated 07.02.2009 clearly indicates that the same is an unsworn affidavit and not an agreement. Therefore, the respondent No. 1 cannot rely on the affidavit dated 7.2.2009 for getting appointment on land-ownership basis. Further, submission has been forwarded that the so called agreement dated 7.2.2009 is also in violation of the Notification dated 26.07.2005 and therefore, the Government had rightly issued the letter dated 15.09.2011 by which the agreement dated 07.02.2009 has been declared as unauthorized and against the policy decision of the Government. Learned Senior Addl. AG has also drawn our attention to Rules 11 and 12 of the Rules of Executive Business of the Government of Nagaland, wherein, it is stipulated that all orders or instruments made or executed by or on behalf of the Government of Nagaland shall be expressed to be made in the name of the Governor of Nagaland; and such orders or instruments shall be signed either by the Chief Secretary and down below up to the rank of Under Secretary or such other Officer as may be authorised by the Government and such signature shall be deemed to be the proper authorisation of such order or instrument. In the present case, learned Senior Addl. AG submits that the agreement dated 07.02.2009 cannot in any circumstance be considered to be on order or instrument to have been made or executed on behalf of the Government of Nagaland and therefore, the claim of the petitioner for appointment on land ownership basis on the basis of the agreement dated 07.02.2009 is not tenable in law. It is also submitted that the case of the petitioner is fully covered by para 2 of the new policy of the Government of Nagaland with regard to appointment of land-ownership basis as notified by the Notification dated 05.03.2018. Learned Senior Addl. AG therefore submits that the respondent No. 1 has no semblance of right to claim for appointment on the basis of landownership and therefore, the judgment and order dated 20.09.2013 be set aside and quashed. 9. We have considered the submissions made by the learned Counsel appearing for the parties. 10. Learned Senior Addl. AG therefore submits that the respondent No. 1 has no semblance of right to claim for appointment on the basis of landownership and therefore, the judgment and order dated 20.09.2013 be set aside and quashed. 9. We have considered the submissions made by the learned Counsel appearing for the parties. 10. When the present two Writ Appeals were taken up on 09.10.2015, this Court, on noticing the procedure followed in the State with regard to appointment of land ownership basis had taken a view that such procedure is not in tune with the requirements of Article 14 and 16 of the Constitution of India and that the State is under an obligation to follow the Constitutional tenets of fairness and equality of opportunity as embodied in Article 14 and 16 of the Constitution in matters of public employment. The case of Secretary, State of Karnataka Vs. Uma Devi & Ors. reported in (2006) 4 SCC 1 and the State of Orissa & Anr. Vs. Mamata Mohanty reported in (2011) 4 SCC 436 were also taken into consideration and in the light of the categorical declaration of law by the Hon'ble Supreme Court, the Chief Secretary to the Government of Nagaland was directed to file a comprehensive statement before the Court if necessary after making consultation with the political executives so that the Court can pass appropriate order in the matter. 11. The Chief Secretary to the Government of Nagaland has filed an affidavit dated 25.04.2018 annexing the new policy formulated by the Government of Nagaland with regard to appointments to Grade - IV post under the Government of Nagaland on land-ownership basis which was notified by the Notification dated 5.3.2018. The said Notification is annexed to the affidavit as Annexure 3. For a proper understanding of the matter in hand, the Notification dated 5.3.2018 is reproduced here in below: "Government of Nagaland Land Revenue Department Notification Dated Kohima, the 5.3.2018 No. LR/6-181/LIT/2015: In pursuance of approval of the Cabinet vide O.M. No. CAB-2/2013 Dt. 13.12.17, the Government of Nagaland is pleased to notify the following policy with regard to appointments to Grade-IV posts under the Government of Nagaland on landownership basis. 1(a) It has been laid down vide Notification No. LR/4-3/KOH/2003 dated 26.07.2005 that no land shall be acquired free of cost and all land shall be acquired on payment of full compensation as determined by law. 1(a) It has been laid down vide Notification No. LR/4-3/KOH/2003 dated 26.07.2005 that no land shall be acquired free of cost and all land shall be acquired on payment of full compensation as determined by law. No further condition for employment in service or contractual works should be entertained. Therefore, in case any Department has entered into any agreement shall be treated as null and void. The Department concerned shall take necessary action accordingly to nullify such agreement. (b) In case the Department concerned is of the view the agreement should not be declared null and void, it shall refer it with relevant details giving justification to the Department of Land Revenue for examination and advice in consultation with P&AR and Justice and Law Departments and thereafter submit the matter for consideration and decision of the Cabinet. 2. Old cases where Administrative headquarters and Block headquarters were set up in various parts of the State on lands donated freely by individuals, villages or people of that area should not be reopened for compensation or for employment in consonance with the policy brought out vide Memorandum No. LR/2-135/76 dated 20.06.1977. 3(a) In other cases prior to 26.07.2005 and subsequent to setting up of Administrative and Block headquarters on freely donated land, where a specific written agreement exists providing for employment to the landowner, the claim for employment should be settled in terms of such agreement. 3(b) If there is any claim for providing employment as a result of oral agreement, the Department concerned shall refer the matter to the Deputy Commissioner of the District concerned who shall examine such claim carefully including whether any employment or any other facility including contract or supply order has been given in the past. Written statements from the witnesses, that is, Government officials of the concerned department and the District Administration and Village functionaries present at the time of such oral agreement should be taken by the Deputy Commissioner. The recommendation of the Deputy Commissioner should be referred with relevant documents to the Department of Land Revenue for advice in such cases by the Department concerned. 3(c) It is also clarified that it is not the policy of the Government to provide employment to the landowner in perpetuity. The recommendation of the Deputy Commissioner should be referred with relevant documents to the Department of Land Revenue for advice in such cases by the Department concerned. 3(c) It is also clarified that it is not the policy of the Government to provide employment to the landowner in perpetuity. The employment of landowner, if permitted by a verifiable and valid agreement, is limited to the person first appointed as landowner in Government service and does not entitle his descendants for further employment on his retirement from service. After the appointed landowner retires or vacates the post, the vacancy will be filled up through open advertisement in consonance with the existing policy giving equal opportunity to all applicants. Sd/- (Pankaj Kumar) IAS Chief Secretary" 12. Coming back to the case in hand, we have considered the agreement dated 14.2.1972 as well as the affidavit dated 7.2.2009. The Notification dated 26.07.2005 has also been considered by us. 13. The agreement dated 14.02.1972 would clearly indicate that the land owners of Sitimi Village donated to the Government of Nagaland their land which is indicated in the sketch map for use by the Government for Sitimi Circle Headquarter and other Government departmental requirements. The agreement further indicates that the land donated is free from all encumbrances. No agreement was made with regard to giving appointment on the basis of land ownership. Therefore, we are of the considered opinion that no right flows down to the landowners who have donated the land as per the agreement dated 04.02.1972 to claim for any appointment on landownership basis for the lands donated by them free of cost. 14. The agreement dated 07.02.2009 would also indicate that the same has been made in the form of an affidavit which also has not been sworn before the competent authority. We are therefore, unable to accept the document dated 07.02.2009 either as an affidavit or as an agreement and therefore, the said document dated 07.02.2009 is non est in the eye of law. A consideration of the document dated 07.02.2009 would also indicate that the same is in contravention of the Notification dated 26.07.2005 which clearly provides that no land shall be acquired free of cost and all land shall be acquired on payment of full compensation as determined by law and that no further condition for employment in Government service or awarding of contractual works should be entertained. Therefore, the respondent No. 1 has no basis or locus standing to claim for appointment on the basis of land ownership to the post of Medicine Carrier at Animal Husbandry Centre, Sitimi under the establishment of District Veterinary Office, Kiphiri on the basis of the document dated 7.2.2009. 15. The Notification dated 5.3.2018 which has already been reproduced herein above also clearly indicates at Clause 2 that all cases where Administrative Headquarter and Block Headquarters were set up in various parts of the State on lands donated freely by Villages/Villagers or people of that area should not be re-opened for compensation or employment in consonance with the policy brought out by the Memorandum dated 20.6.1977. We are of the considered opinion that the case of the respondent No. 1 falls under Clause 2 of the Notification dated 5.3.2018. 16. Rule 11 and 12 of the Rules of Executive Business of the Government of Nagaland has also been considered and on consideration of the same, we are of the opinion that the document dated 07.02.2009 which is referred to by the respondent No. 1 as an agreement cannot be considered as an order or instrument of the Government of Nagaland and therefore, the said document dated 07.02.2009 has no legal validity in the eye of law. 17. In view of what we have discussed herein above, the judgment and order dated 20.09.2013 passed by the learned Single Judge in W.P.(C) No. 238(K) of 2011 and W.P.(C) No. 31(K) of 2012 is set aside and quashed. Consequently, the order dated 28.11.2013 by which the respondent No. 1 was appointed as Medicine Carrier at Veterinary Health Centre, Sitimi under the establishment of District Veterinary and Animal Husbandary Office, Kiphire is also set aside and quashed. 18. Both the Writ Appeals are accordingly allowed, however, with no order as to cost.