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2022 DIGILAW 431 (GAU)

Takuwangshi S/o Shri Imnaao v. State of Nagaland

2022-04-28

NELSON SAILO

body2022
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. Sentiyanger, learned counsel for the petitioner. Also heard Ms. V. Suokhrie, learned State counsel for the State respondents and Mr. Joshua Sheqi, learned counsel for the respondent No. 4. 2. The facts of the case in brief is that the petitioner was appointed to the post of Handyman under the establishment of the Director of Food and Civil Supplies, Govt. of Nagaland, Dimapur against the existing vacancy due to the demise of one Mr. Vitoshe Sumi in the Pay Band PB-IS-4400-17200/- and Grade Pay of Rs. 1400/- per month with other allowances as admissible with effect from the date of joining to the post vide order dated 18.12.2017 (Annexure-1). The appointment was on temporary basis and liable to be terminated after giving 1 month’s notice or 1 month pay without assigning any reason. The appointment order further stated that the same was with the Administrative approval of the Government vide No. SPLY-4/34/2017/80 dated 14.12.2017. The petitioner accordingly joined in the said post by submitting a joining report on 21.12.2017. However, vide order dated 07.01.2019 (Annexure-3), he was terminated with immediate effect along with one Sh. Lanutoshi Pongener, Driver. The termination order further indicated that the same was as per the directive of the Government vide No. SPLY-4/31/2017/504 dated 19.12.2018. 3. Against the vacancy caused by the termination of the petitioner, the respondent No. 4 was appointed in his place vide order dated 07.01.2019 (Annexure-4). The appointment order of the respondent No. 4 also indicated that the appointment was made as per the Administrative approval of the Government vide No. SPLY-4/31/2017/504 dated 19.12.2018. Aggrieved with his termination, the petitioner through his counsel served a legal notice to the respondent No. 3 on 20.07.2020 (Annexure 5). In reply to the said notice, the Additional Director, Food and Civil Supplies Department, Govt. of Nagaland vide letter dated 18.08.2020 (Annexure-6) informed the petitioner that his termination was with the approval of the Government as indicated in the order of termination. Still aggrieved, the petitioner is before this Court through this instant writ petition. 4. Mr. Sentiyanger, learned counsel for the petitioner submits that the respondents could not have terminated the service of the petitioner without following the principles of natural justice and the procedure in this regard. Still aggrieved, the petitioner is before this Court through this instant writ petition. 4. Mr. Sentiyanger, learned counsel for the petitioner submits that the respondents could not have terminated the service of the petitioner without following the principles of natural justice and the procedure in this regard. He submits that the Nagaland Government Servants (Discipline and Appeal) Rules, 1967 (Rules of 1967) provides for the procedure for imposing penalties and that such procedure have not been followed by the respondents in terminating the service of the petitioner. He further submits that on the very day of the termination of the petitioner, the respondent No. 4 was appointed in his place. In this connection, he submits that service of a temporary employee cannot be replaced by another temporary employee save and except through a regular selection procedure. He therefore submits that the termination of the petitioner cannot be sustained and should be set aside with a further direction that the petitioner be reinstated into service. In support of his submission, he relies upon the following decision: (1) Delhi Transport Corporation vs. D.T.C Mazdoor Congress, AIR 1991 SC 101 (2) State of Haryana and Others vs. Piara Singh and Others, (1992) 4 SCC 118 (3) Yashimenla vs. Addl. Chief Secretary, Govt. of Nagaland and Others, 2009 (2) GLT 559 5. Ms. V. Suokhrie, learned State Counsel referring to the affidavit-in-opposition filed by the respondent Nos. 1, 2 and 3 submits that the appointment of the petitioner was purely on temporary basis and that he was liable to be terminated without any notice or assigning any reason. The same was clearly reflected in his appointment order itself and therefore, the petitioner cannot have any grievance or insist on being given a notice. She further submits that the termination of the petitioner’s service was on the directive of the higher authorities in the Government and that the appointment of the respondent No. 4 was for the smooth functioning of the Department concerned in the absence of the petitioner whose service stood terminated. As such, the writ petition being without merit should be dismissed. 6. Mr. Joshua Sheqi, learned counsel also submits that there is nothing wrong with the termination of the petitioner and the appointment of the respondent No. 4. As such, the writ petition being without merit should be dismissed. 6. Mr. Joshua Sheqi, learned counsel also submits that there is nothing wrong with the termination of the petitioner and the appointment of the respondent No. 4. He submits that the petitioner in fact has no locus-standi to file the writ petition inasmuch as, he has been found absent unauthorisedly on many occasions and for which, explanation was called from him by the respondent authorities. In this connection, the learned counsel refers to Annexure-C of the counter-affidavit filed by the respondent No. 4. He further submits that the petitioner was also among the absentees in a social work which was organized on 27.07.2018 and that his one day salary was deducted and credited towards the Staff Welfare Fund. The petitioner therefore having not performed his work with due diligence and discipline, his service was rightly terminated by the official respondents. In so far as the respondent No. 4 is concerned, pursuant to his appointment, he has already joined the post and working diligently as on date and therefore, his service may not be disturbed. He thus submits that the writ petition is without merit and the same should be dismissed. 7. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record, including the authorities relied upon by the learned counsel for the petitioner. From the order of appointment issued to the petitioner, it can be seen that he was appointed to the post of Handyman against an existing vacancy as per the Administrative approval of the Government. He joined the said post and was working as such till he was terminated vide order dated 07.01.2019. The order of termination does not reflect any reason as to why he was terminated from service apart from indicating that it was as per the directive of the Government. There is also no dispute to the fact that the respondent No. 4 was appointed in place of the petitioner on the same day itself. Although the respondent No. 4 in his affidavit has stated that the petitioner had not been regularly attending his duties but the State respondents in their affidavit have made no such indication except for stating that since the appointment was on temporary basis and was terminable without assigning any reason or notice, his service was terminated. Although the respondent No. 4 in his affidavit has stated that the petitioner had not been regularly attending his duties but the State respondents in their affidavit have made no such indication except for stating that since the appointment was on temporary basis and was terminable without assigning any reason or notice, his service was terminated. The Apex Court in the case of State of Haryana and Others vs. Piara Singh and Others (supra) has held that ad-hoc employee or temporary employee cannot be replaced by another ad-hoc or temporary employee except by a regularly selected employee. The relevant portion of the decision at Para 45 and 46 may be reproduced hereunder: “45. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad-hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/ appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad-hoc/temporary employee. 46. Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.” 8. The above ratio laid down by the Apex Court has also been referred to and relied upon by this Court in Yashimenla vs. Addl. Chief Secretary, Govt. of Nagaland and Others (supra). It may be further be noticed that in respect of the other person who was terminated along with the petitioner vide order dated 07.01.2019, approached this Court by filing W.P. (C) No. 23/2019 and this Court vide Order dated 24.09.2019 set aside the termination of the petitioner therein and directed his reinstatement. 9. Therefore, upon due consideration and in view of the law laid down by the Apex Court, the impugned termination order of the petitioner dated 07.01.2019 (Annexure-3) is found to be unsustainable and accordingly, the same is set aside. 9. Therefore, upon due consideration and in view of the law laid down by the Apex Court, the impugned termination order of the petitioner dated 07.01.2019 (Annexure-3) is found to be unsustainable and accordingly, the same is set aside. The appointment order of the respondent No. 4 dated 07.01.2019 (Annexure-4) is also hereby set aside. The respondents are directed to reinstate the petitioner back into service till such time the post is regularly filled up by adhering to selection process as per the established guidelines. In such event, both the petitioner and the private respondent should be given a fair opportunity to participate. In so far as back wages are concerned, the petitioner on his reinstatement will not be entitled to the same on the principle of “No Work No Pay.” 10. With above observation and direction, the writ petition stands disposed of.