Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 570 (GAU)

Tovi H. Yeptho Zunheboto v. State of Nagaland

2020-06-15

NANI TAGIA, S.HUKATO SWU

body2020
JUDGMENT : NANI TAGIA, J.: 1. The court proceedings have been conducted by means of creating a Virtual Court with the help of technology so as to maintain distance between the advocates, the staffs and the Presiding Judge. 2. Heard Mr. C.T. Jamir, learned senior counsel for the appellant and Ms. Livika, learned Government advocate for the State … Respondents. 3. The instant writ appeal is directed against the judgment and order dated 6.4.2018, passed by the learned Single Judge in writ petition, being WP(C) No. 51(K)/2015 (Shri Tovi. H. Yeptho v. The State of Nagaland). 4. The case of the appellant/writ petitioner, briefly stated, is that he was appointed as Lower Division Assistant (‘LDA’) by an order dated 7.9.2011, issued by the Deputy Director of Industries and Commerce (A), Government of Nagaland, vide No. IND/PF/1417/08/659 on ad hoc basis for a period of 1 year, which was stated to be made against the vacancy caused by the voluntary retirement of Smt. L. Tovili Sema. The appointment of the appellant/writ petitioner as LDA for a period of 1 (one) year came to be extended by the respondent-authorities from time-to-time until the service of the appellant/petitioner was terminated by an order dated 3.2.2015, issued by the Director, Industries and Commerce, vide No. IND/ESTT/TER/538/2014, on the ground that the appointment of the appellant/writ petitioner in the post of LDA on ad hoc basis was made without obtaining Government approval as was required to be done under a notification dated 13.1.2010, issued by the Chief Secretary to the Government of Nagaland, vide O.M. No. AR-3/Gen-174/2007(Pt). 5. It may be noted herein that by the termination order dated 3.2.2015, along with the appellant/writ petitioner, 24 other employees were also terminated from their services on the same ground. 5. It may be noted herein that by the termination order dated 3.2.2015, along with the appellant/writ petitioner, 24 other employees were also terminated from their services on the same ground. Against the termination order dated 3.2.2015, the appellant/writ petitioner served a legal notice to the respondent-authorities on 14.9.2015 to which the respondent-authorities had replied to by an order dated 17.9.2015, wherein, it was informed to the appellant/writ petitioner that the legal notice served on the respondent by the appellant/writ petitioner was given due consideration and upon such consideration, it was informed to the appellant/writ petitioner that the decision of the Departmental Screening Board to drop the name of the appellant/writ petitioner from the list of selected candidates for the post of LDA on the ground of questionable/unauthenticated University Degree stands as the appellant/writ petitioner's degree was found to be awarded by the Bharat Shiksha University which is an unrecognized University. Thereafter, the appellant as writ petitioner filed a writ petition, being WP(C) 51(K)/2016, challenging the termination order dated 3.2.2015, issued by the Director of Industries and Commerce, whereby, the service of the appellant/writ petitioner was terminated on the ground of non-obtaining of Government approval prior to their appointment as is required to be obtained under O.M. No. AR-3/Gen-174/2007(Pt), dated 13.1.2010, issued by the Chief Secretary to the Government of Nagaland. 6. The petitioner had, inter alia, contended before the learned Single Judge that the Bharatiya Shiksha Parishad University, which is the University which had issued Degree Certificate to the petitioner, was a recognized University by the University Grant Commission. The petitioner also contended that the number of similarly situated persons who obtained degree from Bharatiya Shiksha Parishad University are still working in different Departments under the Government of Nagaland and accordingly, the petitioner cannot be discriminated by terminating his service on the ground of his Degree having been obtained from the Bharatiya Shiksha Parishad University because several other persons who had obtained Degree from the same University have been allowed to work in the Department. 7. The State respondents, on the other hand, had contended that the petitioner's service was terminated on the ground of non-obtaining of Government approval as was required to be obtained under O.M. No. AR-3/Gen-174/2007(Pt), dated 13.1.2010, issued by the Chief Secretary, Government of Nagaland. 7. The State respondents, on the other hand, had contended that the petitioner's service was terminated on the ground of non-obtaining of Government approval as was required to be obtained under O.M. No. AR-3/Gen-174/2007(Pt), dated 13.1.2010, issued by the Chief Secretary, Government of Nagaland. The State respondents further contended that as the petitioner was an ad hoc appointee for a specified term and the service of the petitioner having not been extended beyond 5.9.2014, the petitioner had no right to continue in the post and accordingly, no notice was also required to be issued to the petitioner before the order of termination dated 3.2.2015 was issued. 8. On consideration of the rival pleadings, the learned Single Judge had come to a finding that although in reply to a Legal Notice dated 14.9.2015, the respondent-authorities had given a reply, dated 17.9.2015, that the service of the appellant/writ petitioner was discontinued on account of appellant/writ petitioner possessing a degree not recognized by the University Grants Commission; yet, the reason contained in the termination order dated 3.2.2015, was for non-obtaining of the approval of the Government prior to the petitioner's appointment as LDA in the year 2011. The learned Single Judge had also recorded the finding that the actual reason for termination of the appellant/writ petitioner's service was the non-obtaining of Government approval for appointment of the petitioner in the post of LDA from the Government as was required to be obtained in terms of O.M. No. AR-3/Gen-174/2007(Pt), dated 13.1.2010, issued by the Chief Secretary, Government of Nagaland. 9. The fact that the reason for termination of the appellant/writ petitioner's service was the violation of O.M. No. AR-3/Gen-174/2007(Pt), dated 13.1.2010, namely, non-obtaining of the Government's approval, had remained undisputed before the learned Single Judge; and, accordingly, the learned Single Judge did not interfere with the impugned termination order, dated 3.2.2015, on the ground of non-obtaining of the approval from the Government which was required to be obtained as per O.M. dated 13.1.2010, referred to hereinabove. Contention of the appellant/petitioner that the degree of the petitioner from the Bharat Shiksha Parishad University was a recognized one; and, that several persons who had obtained the degree from the same University have been allowed to work by the respondent-authorities did not find favour with the learned Single Judge because the termination of the petitioner's service, vide termination order dated 3.2.2015, was on account of non-obtaining of Government's approval in terms of O.M. dated 13.1.2010 and not on account of degree from an unrecognized University. 10. Assailing the correctness of the judgment and order dated 6.4.2018, passed by the learned Single Judge in WP(C) No. 51(K)/2016, Mr. Jamir’ learned senior counsel, submits that by the impugned termination order dated 3.2.2015, apart from the appellant/writ petitioner, 24 (twenty four) other employees, who were also terminated by the same impugned order dated 3.2.2015, the State respondents have taken back into services of as many as 9 (nine) employees/persons. Mr. Jamir, learned senior counsel, further refers to an order passed by this court on 4.12.2019, wherein, the learned senior Government advocate, Mr. K. Wotsa, was directed to produce the records in which persons/employees whose names have been mentioned in Sl. Nos. 8, 10, 13, 14, 19, 20, 22, 23 and 25 in the termination order dated 3.2.2015, are stated to have been re-employed by the respondent-authorities. Mr. Jamir, learned senior counsel, also submitted that several other employees who had submitted Degree from the Bharatiya Shiksha Parishad University have been allowed to work in various Departments of the Government. 11. Ms. Livika, learned Government advocate appearing on behalf of Mr. K. Wotsa, learned senior Government advocate, submits that the record as was directed to be obtained from the Department by an order of this court, dated 4.12.2019, is not available today. 12. We have considered the submissions made by the learned counsels for the parties and also perused the materials available on record. It is not in dispute that appellant/writ petitioner was an ad hoc appointee, who was first appointed as ad hoc LDA by an order dated 7.9.2011 for a period of 1 year, which appointment was extended from time-to-time until the impugned termination order dated 3.2.2015 was issued. It is not in dispute that appellant/writ petitioner was an ad hoc appointee, who was first appointed as ad hoc LDA by an order dated 7.9.2011 for a period of 1 year, which appointment was extended from time-to-time until the impugned termination order dated 3.2.2015 was issued. From perusal of the impugned termination order dated 3.2.2015, it is evident that the appellant/writ petitioner along with 24 others were terminated from their services on the ground of their appointment being made without obtaining Government approval in terms of O.M. No. AR-3/Gen-174/2007(Pt), issued by the Chief Secretary, Government of Nagaland, dated 13.1.2010. For ready reference, the O.M. dated 13.1.2010, is quoted herein below- “Government of Nagaland Personnel and Administrative Reforms Department (Administrative Reforms Branch) No. AR-3/Gen-174/2007 (pt)Dated, Kohima, the 13th January, 2010 OFFICE MEMORANDUM Sub : Irregular appointment of Government servants by some appointing authorities- Fresh procedure for appointment of Government employees of any category. It has come to the notice of the Government that a number of unauthorized appointments have been made by certain Heads of the Department on the eve of their retirements without following the prescribed procedure. Now, the Government has taken a decision that all those irregular appointments made by them should be immediately cancelled by the concerned Administrative Heads of Departments, and also criminal prosecution of the guilty officials be taken up by filling an FIR in the Vigilance Commission and all payments of pensionary benefits should be withheld till criminal case is disposed of. Further, Notwithstanding any provision in the Delegation of Financial and Cognate Power Rules, as amended from time-to-time, the State Government have decided that henceforth, all cases of appointments of Government servants, either against regular posts and on ad hoc/fixed/contingency basis against non-existing posts, shall be done only with the prior approval of the Government to be conveyed in writing by the Administrative Head of Department. Henceforth, any appointment made without prior approval of the Government shall be considered invalid, null and void. Further, all such appointments of work-charged and casual employees without sanctioned posts shall also be done only within the strength approved by the Nagaland Work-Charged and Casual Employees Commission. Sd/- Lalthara Chief Secretary to the Government of Nagaland. No. AR-3/Gen-l74/2007 (Pt) Dated, Kohima, the 13th January, 2010.” 13. Further, all such appointments of work-charged and casual employees without sanctioned posts shall also be done only within the strength approved by the Nagaland Work-Charged and Casual Employees Commission. Sd/- Lalthara Chief Secretary to the Government of Nagaland. No. AR-3/Gen-l74/2007 (Pt) Dated, Kohima, the 13th January, 2010.” 13. On perusal of the O.M. dated 13.1.2010, which is quoted hereinabove, it is evident that the said O.M. came to be issued in the wake of large number of unauthorized appointments being made by certain Heads of the Departments on the eve of their retirement without following the prescribed procedure. It was in that context, the O.M. dated 13.1.2010, came to be issued; whereby, it was directed that henceforth all cases of appointments of Government servants either against regular posts or on ad hoc/fixed/contingency basis against non-existing posts shall be done only with the prior approval of the Government to be conveyed in writing by the Administrative Head of Departments. The fact that the appellant/writ petitioner was appointed by an order dated 7.9.2011 in the post of LDA on ad hoc basis for a period of 1 year and the subsequent extensions thereto was made without the approval of the Government, has remained undisputed. It was in that context that the writ petition, filed by the petitioner, challenging the impugned termination order dated 3.2.2015 was dismissed by the learned Single Judge. 14. On perusal of the O.M. dated 13.1.2010, issued by the Chief Secretary, Government of Nagaland, vide No. AR-3/Gen-174/2007(Pt), we find that for any appointments, be it regular/ad hoc/fixed/contingency basis, the approval of the Government has been made mandatory on and from 13.1.2010. The appointment of the appellant/writ petitioner as LDA on 17.9.2011, was made in violation of the O.M. dated 13.1.2010 have not been disputed by the learned senior counsel for the appellant in his arguments as was also not disputed before the learned Single Judge. In that view of the matter, we find no infirmity in the judgment and order dated 6.4.2018, passed by the learned Single Judge in WP(C) 51(K)/2016, dismissing the writ petition filed by the writ petitioner/appellant. 15. In that view of the matter, we find no infirmity in the judgment and order dated 6.4.2018, passed by the learned Single Judge in WP(C) 51(K)/2016, dismissing the writ petition filed by the writ petitioner/appellant. 15. The judgment and order of the learned Single Judge, dated 6.4.2018, cannot also be interfered with by this appellate court on the ground that several others who were also terminated along with the writ petitioner by the same termination order dated 3.2.2015, have been taken back in service by the State respondents. If the similarly situated persons like the appellant/writ petitioner have been taken back in service by the respondent-authorities who were also terminated by the order dated 3.2.2015, it would be open for the appellant to seek appropriate remedies against such an act of the respondent-authorities in taking back the service of similarly situated persons, who according to the writ petitioner, otherwise, ought not to have been taken back into the service. No direction can be issued by this court to the respondent-authorities to take back the appellant/writ petitioner into the service as have allegedly been taken back into service by the respondent-authorities to the persons who were terminated along with the petitioner inasmuch as if such a direction is issued by this court, it would be a direction in the nature of extending the negative equality which is not permissible under the law. Article 14 of the Constitution of India does not envisage negative equality. Wrong benefits conferred upon someone cannot be a ground to grant similar relief to others. That apart, we also notice that the appointment of the appellant/writ petitioner was made in complete violation of the articles 14 and 16 of the Constitution of India besides being in violation of the O.M. dated 13.1.2010, issued by the Chief Secretary, Government of Nagaland, for which, we find that the appellant/writ petitioner could not have been provided any relief by the learned Single Judge. 16. For the reasons and discussions made hereinabove, we find no merit in this appeal and accordingly, the same is dismissed being devoid of merit.