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2020 DIGILAW 614 (GAU)

Smti Zanabani Tungoe v. State Of Nagaland

2020-07-03

NANI TAGIA, S.HUKATO SWU

body2020
JUDGMENT Nani Tagia, J. - 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. Z. N. Ngullie, learned counsel for the appellant and Mr. Moa Imchen, learned Government Advocate representing respondent Nos. 1 to 6. 3. This intra-court appeal is directed against the order dated 13.03.2020, passed by the learned Single Judge in WP(C)/16/2018, whereby, the learned Single Judge had directed the respondent authorities to conduct recruitment examination for the post occupied by the private respondent as per the Rules of 2017 as early as possible but not later than a period of 5 (five) months from that day. The learned Single Judge had further directed that on the date the period of 5 (five) months comes to end, counting from the date of the order or on the date the recruitment process is completed, whichever is earlier, service of the private respondent shall automatically come to an end. 4. The facts leading to filing of the present intra-court appeal may briefly be stated as follows. 5. The respondent No. 7, herein, as writ petitioner, had filed a writ petition, being WP(C)/16/2018, challenging the order of approval for appointment of the appellant/respondent No. 7, in the writ petition, as Ad hoc Primary Teacher at GPS, Phiro B. Village under the establishment of Sub-Divisional Education Officer, Woka, vide order No. DSE/PT-12/WKA/2013/E, dated 10.01.2018, issued by the Under Secretary to the Government of Nagaland, Department of School Education/ respondent No. 3, herein, and also the appointment order of the appellant/respondent No. 7, in the writ petition, dated 18.01.2018, issued by the Director of School Education, Government of Nagaland, vide No. ED/EL/WKA/APPT/01/2017/01, whereby, the appellant/respondent No. 7, in the writ petition, was appointed as Primary Teacher at GPS, Phiro-B under the Establishment of Sub-Divisional Education Officer, Woka, on ad hoc basis. 6. 6. The writ petitioner/respondent No. 7, herein, contended in the writ petition that the post in which the appellant/respondent No. 7, in the writ petition, has been appointed as Primary Teacher is a post that have been vacated by her father and in that vacant post, the writ petitioner/respondent No. 7, herein, had submitted an application for appointment, dated 30.08.2017, to the Sub-Divisional Education Officer, Woka, Nagaland, which application was forwarded by the Sub-Divisional Education Officer, Woka, Nagaland, to the Principal Director, School Education, Nagaland. On receipt of the same, the Principal Director, School Education, Nagaland, further forwarded the same to the Principal Secretary to the Government of Nagaland, Department of School Education, Nagaland, vide its Letter No. ED/EL/WKA/APPT/01/2017, dated 06.10.2017. While the application of the respondent No. 7/writ petitioner was pending consideration, the appellant/respondent No. 7, in the writ petition, was appointed as Primary Teacher at GPS, Phiro-B on Ad hoc basis in a post that was vacated on the retirement of the father of the writ petitioner/respondent No. 7, herein, by an order dated 18.01.2018. The writ petitioner/respondent No. 7, herein, accordingly, prayed in the writ petition for setting aside of the appointment order dated 18.01.2018, issued in favour of the appellant/respondent No. 7 in the writ petition. 7. The writ petitioner/respondent No. 7, herein, contended that the appointment of appellant/respondent No. 7, in the writ petition, on ad hoc basis, without holding any recruitment process, was illegal and the same was contrary to the law laid down by the Hon''ble Apex Court in the case of State of Orissa & Anr. Vs. Mamata Mohanty, (2011) 3 SCC 436 . 8. The State respondents, in the writ petition, had contended that there is a Recruitment Rule, namely, Nagaland School Education Service Rules, 2017; under which Rule, the post of Primary Teachers are required to be filled up by direct recruitment twice in a year. 9. The appellant, as respondent No. 7 in the writ petition, contended that the writ petitioner, who is respondent No. 7, herein, has no right to claim the post occupied by the appellant/respondent No. 7 since no appointment order to the post, in question, had been issued by the authorities in favour of the writ petitioner and the writ petitioner cannot have any right to claim to the post on the basis of a mere recommendation made by some of the authorities in file. The appellant, as respondent No. 7 in the writ petition, however, had not denied that her appointment as Primary Teacher in GPS, Phiro-B Village was made without any selection process. 10. On consideration of the respective contentions advanced by the learned counsels for the parties, the learned Single Judge had come to a finding that there is a Recruitment Rule in place, namely, Nagaland School Education Rules, 2017, under which, the post of Primary Teachers in the Government Schools should be filled up by direct recruitment through public advertisement giving equal opportunity to all eligible candidates in the State of Nagaland. The learned Single Judge further came to a conclusion that the appointment of the respondent No. 7, in the writ petition, who is the present appellant, was admittedly made without following the Service Rule and the settled principle of law laid down in the judgment of the Hon''ble Supreme Court referred to by the learned counsel for the writ petitioner, namely, State of Orissa & Anr. Vs. Mamata Mohanty, (2011) 3 SCC 436 . The learned Single Judge had also recorded a finding on the basis of the appointment order of the appellant/respondent No. 7, in the writ petition, that the appointment of the present appellant/respondent No. 7, in the writ petition, was meant to continue only till a regular appointment was made in accordance with the Recruitment Rules. It was on the basis of the above recorded findings that the learned Single Judge had directed the respondent authorities to conduct recruitment examination for the post of Primary Teacher at GPS, Phiro-B Village, occupied by the appellant/respondent No. 7, in the writ petition, as per the Recruitment Rules of 2017 as early as possible but not later than a period of 5 (five) months from the date of the order and further directed that on the date the period of 5 (five) months comes to an end, counting from the date of the order or on the date the recruitment process is complete, whichever is earlier, the service of the appellant/respondent No. 7, in the writ petition, shall automatically come to an end. 11. Mr. 11. Mr. Z. N. Ngullie, learned counsel for the appellant, assailing the order dated 13.03.2020, passed by the learned Single Judge in WP(C)/16/2018, submits that the learned Single Judge has committed an error while directing the respondent authorities to conduct recruitment examination in accordance with rules within a period of 5 (five) months to fill up the post occupied by the appellant/respondent No.7, in the writ petition, inasmuch as the prayer of the writ petitioner/ respondent No. 7, herein, was not to conduct a recruitment examination in accordance with the Recruitment Rules to fill up the post of Primary Teacher at GPS, Phiro-B Village under the establishment of SDEO, Woka, vacated by the father of the writ petitioner/respondent No. 7, herein. In the absence of a prayer made by the writ petitioner, in the writ petition, for conducting of recruitment examination in accordance with the Recruitment Rules, the learned Single Judge could not have directed the respondent authorities to conduct recruitment examination in accordance with Recruitment Rules for filling up of the post of Primary Teacher, vacated by the father of the writ petitioner/respondent No. 7, herein. 12. Mr. Moa Imchen, learned Government Advocate representing the State respondent Nos. 1 to 6, have supported the order of the learned Single Judge and submitted that there is no any illegality committed by the learned Single Judge while directing the respondent authorities to conduct the recruitment examination in accordance with the Recruitment Rules inasmuch as the public posts, when falls vacant, undoubtedly, is required to be filled up in accordance with the Recruitment Rules. 13. We have heard the learned counsels for the parties and perused the materials available on record. 14. On perusal of the impugned order dated 13.03.2020, passed by the learned Single Judge in WP(C)/16/2018, and also on consideration of the rival submissions made by the learned counsels for the parties, it is not in dispute that in a post, namely, Primary Teacher of GPS, Phiro B. Village under the Establishment of Sub-Divisional Education Officer, Woka, which had fallen vacant on the retirement of the writ petitioner''s father, the appellant/respondent No. 7, in the writ petition, was appointed by an order dated 18.01.2018 for a period of 1 (one) year on ad hoc basis. It is also not in dispute that there is a set of Rules called Nagaland School Education Services Rule, 2017, under which, the post of Primary Teachers are required to be filled up by direct recruitment twice in a year. It is also not in dispute that the appellant/respondent No. 7, in the writ petition, was appointed as Primary Teacher on ad hoc basis by an order dated 18.01.2018 for a period of 1 (one) year without the appellant/respondent No. 7, in the writ petition, going through any selection process. From perusal of paragraph 5 of the impugned order dated 13.03.2020, passed in WP(C)/16/2018, it is evident that the appellant/ respondent No. 7, in the writ petition, had not denied the fact that her appointment was made without any selection process. 15. In the light of the findings recorded hereinabove, the learned Single Judge had come to a conclusion that appointment of the appellant/respondent No. 7, in the writ petition, was not made in accordance with the Recruitment Rules as well as in conformity with the constitutional provisions for making an appointment to the public posts. In reaching the above conclusion, the learned Single Judge had also taken note of the decision of the Hon''ble Supreme Court in the State of Orissa & Anr. Vs. Mamata Mohanty, (2011) 3 SCC 436 , relied on by the learned counsel for the writ petitioner and had referred to paragraphs 35, 36 & 55. 16. In the facts and circumstances of the present case, we deem it appropriate to reproduce paragraph 36 of the decision of the Hon''ble Supreme Court in State of Orissa & Anr. Vs. Mamata Mohanty (Supra), which is quoted hereinbelow - wxyz "36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board etc. that will not meet the requirement of Articles 14 & 16 of the Constitution. Such a course violates the mandates of Articles 14 & 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. that will not meet the requirement of Articles 14 & 16 of the Constitution. Such a course violates the mandates of Articles 14 & 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit." zyxw 17. On perusal of the law laid down by the Hon''ble Supreme Court in paragraph 36 of the judgment, quoted hereinabove, it is clear that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If such appointment is made, it would be violative of Articles 14 & 16 of the Constitution of India. 18. In the present case, admittedly, the appellant/respondent No. 7, in the writ petition, was appointed on ad hoc basis by an order dated 18.01.2018 without inviting applications from all eligible candidates and accordingly, the appointment of the appellant was dehors the Recruitment Rules as well as the constitutional scheme of making an appointment to the public posts and therefore, the ad hoc appointment of the appellant/respondent No. 7, in the writ petition, could not have been validated by the learned Single Judge nor can the same be validated by this Court. If the requirement of law is that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates, as have been held by the Hon''ble Supreme Court in paragraph 36 of the State of Orissa & Anr. Vs. If the requirement of law is that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates, as have been held by the Hon''ble Supreme Court in paragraph 36 of the State of Orissa & Anr. Vs. Mamata Mohanty (supra), no fault can be found in the order of the learned Single Judge directing the respondent authorities to conduct the recruitment examination for the post occupied by the appellant/ the respondent No. 7, in the writ petition, as per the Recruitment Rules of 2017 as early as possible but not later than a period of 5 (five) months from the date of the order with a further direction that on the date the period of 5 (five) months comes to an end, counting from the date of the order or the date the recruitment process is completed, whichever is earlier, service of the appellant/respondent No. 7 shall automatically come to an end. Accordingly, we are of the view that though no such prayer for conducting a recruitment examination was made by the writ petitioner/the respondent No. 7, herein, the direction given by the learned Single Judge to conduct recruitment examination for the post occupied by the appellant/respondent No. 7, in the writ petition, as per the Recruitment Rules of 2017, as early as possible but not later than 5 (five) months from the date of the order with a further direction that on the date the period of 5 (five) months comes to an end, counting from the date of the order or the date the recruitment process is completed, whichever is earlier, service of the appellant/respondent No. 7 shall automatically come to an end, being in conformity with the law laid down by the Hon''ble Supreme Court in State of Orissa & Anr. Vs. Mamata Mohanty (supra), needs no interference. 19. Writ Appeal, being devoid of merit, stands dismissed.