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2021 DIGILAW 429 (GAU)

Thungsumo Humtsoe v. Nagaland University

2021-07-05

S.HUKATO SWU

body2021
JUDGMENT : S. Hukato Swu, J. 1. This writ petition is filed for issuance of writ of mandamus or any appropriate writ for violation of Article 14 and 16 of the Constitution of India. 2. The petitioners are represented by learned counsel Mr. P. Pius Lotha and the University respondents are represented by Mr. C.T. Jamir, learned senior counsel assisted by Mr. N. Longkumer. 3. The prayer in the petition is for quashing and setting aside the advertisement issued by the Nagaland University which is reproduced below:- "Nagaland University (A Central University Estd. By the Act of Parliament No. 35 of 1989) Headquarters: Lumami-798627 No. F.a.238/Estt-1/2013 (Vol-III)-2966 Dated Lumami the 20th Aug, 2019 Advertisement Applications in the prescribed form are invited form eligible candidates for the posts of (1) Junior Stenographer (2) Lower Divisional Clerk (3) Work Assistant (Electrical) (4) Plumber (5) Driver (6) Cook (7) Gestener Operator (8) MTS (Library Attendant) and (9) MTS (Peon) Details of the advertisement other items and conditions and the application form are available in the University website www.nagaland university.ac.in. Last date for receipt of filled-in application is 20th September, 2019. Sd/- Registrar" 4. The facts leading to filing of this writ petition is that the present petitioners having served for several years in the Nagaland University as workcharged employees were not regularized and therefore moved this Court by filing a writ petition nomenclatured as W.P. (C) 194 (K) of 2010 whereby, this Court had given a direction that the respondents should consider the case of the petitioners for regularization as and when vacancies arise with a condition that the petitioners should also be suitable for the post. The petitioners case were however not considered. Thereafter, 2nd writ petition nomenclatured as W.P. (C) 94 (K) of 2014 was filed and the same was also disposed of on 09.02.2015 by giving similar relief to the petitioners as granted in the first writ petition i.e. W.P. (C) 194 (K) of 2010. This direction was also not complied with, therefore, 3rd writ petition was filed nomenclatured as W.P.(C) 215/2019 however, the same was withdrawn on 14.11.2019 with liberty to file afresh petition which was allowed by the Court. This direction was also not complied with, therefore, 3rd writ petition was filed nomenclatured as W.P.(C) 215/2019 however, the same was withdrawn on 14.11.2019 with liberty to file afresh petition which was allowed by the Court. While the matter was kept pending, the impugned advertisement was issued by the respondents and the petitioners are before this Court challenging propriety of this advertisement which seeks to recruit fresh candidates without considering the candidature of the petitioners in terms of the direction given by this Court in the two writ petitions mentioned above. Learned counsel for the petitioners submits that the petitioners along with others numbering 22 petitioners had originally; filed the first writ petition. After the Court had given a direction, 6 (six) petitioners were accommodated in the year 2014. They were petitioner No. 9. Mr. Makhai who was a Carpenter but was regularized as Mali in the year 2014, petitioner No. 10 Mr. Virachulie Angami who was initially appointed as Mali however was regularized as Office Peon in the year 2014, petitioner No. 6 Mr. Senokha Koza who was initially appointed as Mali however was regularized as Cook in the year 2014, petitioner No. 7 Miss. Phalkiekim, initially appointed as Hostel Attendant but was regularized as LDC in the year 2007 and petitioner No. 11 Mr. Ghokuto Sema who was initially appointed as Farm Attendant but was regularized as Sweeper in the year 2015. Likewise, petitioner No. 8 was also regularized as LDC in the year 2014. 5. Learned counsel for the petitioner argues that this being the character of the regularization of appointment whose posts were interchanged, the argument that the petitioners post does not tally with the advertisement is against the facts presented. He alleges that the University respondents are designating the post as per their convenience and accommodating preferred employees thus discriminating the petitioners who were similarly situated. Furthermore, the reply of the RTI filed by the petitioners exhibits irregularities in appointments which is reproduced as below:- "Nagaland University (A Central University Estd. By the Act of Parliament No. 35 of 1989) Headquarters: Lumami-798627 No. NU/RTI/ESTT/2017-3835 Dated Lumami the 12th October 2017 To, Thungsumo Humstoe C/o Dept. Furthermore, the reply of the RTI filed by the petitioners exhibits irregularities in appointments which is reproduced as below:- "Nagaland University (A Central University Estd. By the Act of Parliament No. 35 of 1989) Headquarters: Lumami-798627 No. NU/RTI/ESTT/2017-3835 Dated Lumami the 12th October 2017 To, Thungsumo Humstoe C/o Dept. of Agricultural Economics, NU, SASRD, Medziphema Camput, Dimapur, Nagaland Sub:- Information under RTI Act, 2005 Ref:- Your RTI application dated 05.10.2017 (Received by PIO on 05.10.2017) Sir, With reference to your RTI above, the information that you have sought for is furnished as under:- 1. Enclosed at Annexure-I. Yours faithfully, (Peter KI) CPIO" 6. It only suggests that the University respondents have been appointing employees without going through the process of advertisement Learned counsel has placed reliance upon the judgment of the Apex Court in the case of Smti. Sabita Kumari-vs-The State of Bihar & Ors, reported in (2006) AIR SC 1806 wherein, it has been ruled that the employees who were engage for ten continuous years of service was entitled to regularization. The petitioners have put in more than 22 years of service hence, the advertisement which has been published by the University respondents would dis privilege the operation of the order passed by this Court on 06.06.2012 as well as the order passed by this Court on 9.2.2015 directing the respondents University to consider the regularization of the petitioners service. The advertisement which seeks to recruit 3rd Grade employees as contained in Item Nos. 3 to 9 would work against the interest of the petitioners denying them of the privilege for being considered without regularization in terms of the Court's order mentioned above. 7. Learned counsel for the petitioners in view of the arguments presented has prayed that the impugned advertisement be quashed and set aside and consider the petitioners regularization prior to making fresh recruits in vacant post. 8. Learned senior counsel Mr. C.T. Jamir appearing for the University respondents submits that two orders passed by this Court in W.P. (C) 194 (K) of 2010 and W.P. (C) 94 (K) of 2014 were both subject to suitability and availability of vacancies. The vacancies which arise would be considered for accommodating the petitioners however, the post which are now advertised are not the post held by the petitioners. Therefore, the respondents cannot consider the case of the petitioners. The vacancies which arise would be considered for accommodating the petitioners however, the post which are now advertised are not the post held by the petitioners. Therefore, the respondents cannot consider the case of the petitioners. The posts are created by the UGC and not by the Nagaland University and since 2006 to 2007, the UGC has not created even a single post till date. Unless vacancies arise with respect to the post the petitioners are holding as of now, it would not be possible for the University to consider regularization of the service of the petitioners. It is also to be understood that the two order are subject to vacancies and suitability therefore, the candidates have to be scrutinized for suitability even if vacancy arise. 9. In terms of the Hon'ble Court order dated 06.06.2012 passed in W.P. (C) 194 (K) of 2010 and based on the recommendation of the Core Committee to examine the suitability for regularization of casual workers some casual workers were considered for regularization against available posts following the eligibility criteria for the post and performance in the selection process. However, the services of the petitioners could not be regularized as no posts were available. The respondents however are in active process for complying the Courts. 10. It has been contended that what the learned counsel for the petitioners has submitted is not correct. The six petitioners in the original petition who were regularized underwent selection process which is clearly indicated in their respective appointment orders. The posts were duly advertised and the candidates underwent regular process of selection process and they were accordingly recommended and not as contended by the learned counsel for the petitioners that they were arbitrarily picked and chosen to favour their candidature. 11. With respect to the contention that there were arbitrary appointments divulged by the reply of RTI it is replied that out of 17 candidates, 5 candidates were appointed on compassionate ground. This is the policy adopted by the University and is not a assailable. The remaining candidates were direct recruits meaning, thereby, they were recruited through regular process of advertisement and the petitioners were also given the liberty to appear for the posts. This is the policy adopted by the University and is not a assailable. The remaining candidates were direct recruits meaning, thereby, they were recruited through regular process of advertisement and the petitioners were also given the liberty to appear for the posts. Therefore, the contention that there has been pick and choose of candidates for appointment in the University is incorrect Referring to the ruling of the Apex Court, learned senior counsel for the respondents has submitted that the celebrated judgment of Uma Devi's case has superseded all other judgments of the past. By virtue of the judgment only those candidates who had been serving more than 10 years on sanctioned post would be entitled to regularization against sanctioned posts within 6 months of the passing of the order i.e. 10.04.2006. In the instant case, the petitioners are all casual employees who are not employed against sanctioned post, therefore, their case is not covered by Uma Devi's case nor have they put in 10 years of service when the referred order was passed. 12. With respect to the advertisement that has been floated by the University respondents, learned senior counsel submits that the advertisement has liberalized the aspect of age by condoning the age bar to opportune all the candidates who are otherwise fulfill the criteria and therefore this is in terms of the accepted judicial pronouncements it cannot be quashed and set aside. Even the two orders passed by this Court relied upon by the petitioners provides for condition that the petitioners should be suitable for the post. The petitioners are also allowed to appear for the said advertisement by opportuning them to overcome the age bar and therefore this is in spirit of Article 14 and 16 of the Constitution. Learned senior counsel has argued that the petition is misconceived and misplaced. 13. I have heard the learned counsel for the parties. I have also considered the documents placed before me. 14. The two orders passed by this Court which directs that the petitioners case should be considered is based on two premise as argued by the learned senior counsel for the University respondents i.e. subject to availability of the post and also subject to the suitability. I have also considered the documents placed before me. 14. The two orders passed by this Court which directs that the petitioners case should be considered is based on two premise as argued by the learned senior counsel for the University respondents i.e. subject to availability of the post and also subject to the suitability. It is my considered view that if the present petition is allowed it would run counter to the direction given in W.P. (C) 194 (K) of 2010 and W.P. (C) 94 (K) of 2014 which has the rider that candidates should be suitable. The petitioners' case is also being actively considered and the present advertisement does not bebar them from sitting in the interview if they are found to be fit as seen from the advertisement and enlisted from Item Nos. 3 to 9 which are of 3rd Grade posts. 15. The petitioners shall be allowed to sit for the interview to test their suitability as directed by this Court in the previous two orders mentioned above. It may also be mentioned that the University respondents have been in continuous use of the services of the petitioners for the past 22 years and it is the view of this Court that they are capable of discharging their duties and hence the University have been utilizing their services for so long. This aspect of the matter has to be duly considered while putting the petitioners to test in terms of the advertisement in the posts they can be accommodated. 16. As discussed above, if the present petition is allowed, it would go counter to the spirit of the two orders passed by this Court to test the suitability of the employees. 17. The petition is therefore misplaced and stands dismissed.