Zubeni Z. Kikon, D/O Shri. L. Zaremo Kikon v. State Of Nagaland Represented By The Chief Secretary
2024-12-06
MANISH CHOUDHURY
body2024
DigiLaw.ai
JUDGMENT : Manish Choudhury, J. This writ petition under Article 226 of the Constitution of India is preferred to assail a Letter no. CNE/PIMS/GENERAL/2020/37 dated 01.03.2022 [Annexure-B] issued by the respondent no. 2 and an Order no. DCWKA-ESTT-PIMS/37/2020-21 [Annexure-C] dated 09.03.2022. A further direction has been sought for to allow the petitioner to continue in service in terms of his Appointment Order dated 28.02.2017. By the order dated 09.03.2022, the petitioner’s appointment made vide Appointment Order dated 28.02.2017, came to be terminated w.e.f. 01.03.2022. 2. The factual matrix of the case in narrow compass. By an Order dated 28.02.2017 [Annexure-1] passed by the respondent no. 3, the petitioner came to be appointed as a LDA –cum- Counter Assistant on casual basis at General Administration Rest House, Wokha in a scale of pay Rs. 1,000-25-1,125-30-1425-35-1880/- per month plus other allowances as admissible from time to time w.e.f. 01.03.2017 till further order. It was specifically mentioned in the Order dated 28.02.2017 that the appointment of the petitioner was purely on temporary casual basis and was liable to be terminated without any further notice. On receipt of the Order dated 28.02.2017, the petitioner immediately joined in the post and started discharging her duties. 3. After rendering about five years of service as LDA –cum- Counter Assistant, the petitioner came across the Letter bearing no. CNE/PIMS/GENERAL/2020/37 [Annexure-2] dated 01.03.2022 of the respondent no. 2, addressed to all the Deputy Commissioners including the respondent no. 3. Apart from dilating on the issue of payment of salaries and wages through e-Pay Bill System based on Personal Information Management System [PIMS], the respondent no. 2 by in said Letter had observed that certain contingency/casual employees’ appointments were made in the Office of the Deputy Commissioners on exigency and stop gap arrangement till the conduct of recruitment processes through the District Level Recruitment Board [DLRB]. Observing that those kind of appointment being temporary, are not liable for PIMS registration, the Deputy Commissioners were intimated that the posts occupied by those contingency/casual appointees were extended only up to 28.02.2022 and thereafter, they should be terminated w.e.f. 01.03.2022. 4. Close on the heels of the Letter dated 01.03.2022 of the respondent no. 2, the respondent no. 3 issued the impugned Order bearing no. DCHKA-ESTT-PIMS/37/2020-21 dated 09.03.2022 [Annexure-3] whereby appointments of seven nos. of contingency/casual appointees made in his office on exigency and stop gap arrangement were terminated w.e.f. 01.03.2022.
4. Close on the heels of the Letter dated 01.03.2022 of the respondent no. 2, the respondent no. 3 issued the impugned Order bearing no. DCHKA-ESTT-PIMS/37/2020-21 dated 09.03.2022 [Annexure-3] whereby appointments of seven nos. of contingency/casual appointees made in his office on exigency and stop gap arrangement were terminated w.e.f. 01.03.2022. The impugned Order made mention of the Letter dated 01.03.2022 of the respondent no. 2. The petitioner is one of the seven contingency/casual appointees whose appointments were terminated by the impugned Order dated 09.03.2022 w.e.f. 01.03.2022. 5. I have heard Mr. Moa Jamir, learned counsel for the petitioner and Ms. Livika, learned State Counsel for all the respondents. 6. Mr. Jamir, learned counsel for the petitioner has submitted that in the Letter dated 01.03.2022, the respondent no. 2 had observed that the posts occupied by the contingency/casual appointees would be extended up to 28.02.2022 and such an observation was made on the premise that the advertisement for the recruitment to various posts through the DLRB would be made by that time. It is submitted by him that till date, no advertisement for filling up the posts made vacant due to the impugned Order dated 09.03.2022 has been made, meaning thereby, the appointments to those posts are going to happen in the near future and as such, the services of the petitioner can be extended till recruitment through the DLRB is complete. Mr. Jamir has also referred to a decision of the Hon’ble Supreme Court of India in Rajbinder Singh vs. State of Punjab and others, reported in [1988] Suppl. SCC 428, to buttress his submissions. 7. Ms. Livika, learned State Counsel seriously objecting to the prayer made in this writ petition, has submitted that the Department of Personnel & Administrative Reforms, Government of Nagaland issued an Office Memorandum on 06.06.2016 on the subject ‘Ban on Appointment on Contract Basis’. By referring to the said Office Memorandum, it is submitted by Ms. Livika that the State Government has decided not to fill up any post even temporarily, either on contract basis or in any other manner, other than by making an advertisement and by undertaking a selection process. By referring to another Office Memorandum dated 05.07.2019, Ms. Livika has submitted that the earlier position is reiterated in the Office Memorandum dated 05.07.2019 in that appointment on contract basis/ad-hoc/fixed/casual/work-charged, etc. are banned w.e.f. 06.06.2016.
By referring to another Office Memorandum dated 05.07.2019, Ms. Livika has submitted that the earlier position is reiterated in the Office Memorandum dated 05.07.2019 in that appointment on contract basis/ad-hoc/fixed/casual/work-charged, etc. are banned w.e.f. 06.06.2016. But despite issuance of the Office Memorandum dated 06.06.2016 under the hand of the Chief Secretary to the Government of Nagaland, the petitioner was appointed in complete disregard to the Policy notified by the State Government vide the Office Memorandum dated 06.06.2016. Thus, the appointment of the petitioner is clearly illegal and in any view of the matter, no right accrues upon a contingency/casual appointee who is appointed as a stop gap arrangement, to seek either continuous or permanency. 8. I have duly considered the submissions of the learned counsel for the parties and have also gone through the materials brought on records by the parties through their pleadings. 9. It is noticed that a policy decision taken by the State Government has been notified by the Office Memorandum dated 06.06.2016, issued under the hand of the Chief Secretary to the Government of Nagaland, and the said Office Memorandum is on the subject - ‘Ban on Appointment on Contract Basis’. From the Office Memorandum dated 06.06.2016, it can be noticed that any appointment to Government service shall be made strictly in accordance of the existing rules and procedure in force, that is, through the Nagaland Public Service Commission [NPSC] or through open advertisement or through Employment Exchanges and it has been made clear that all ad-hoc/casual/temporary/work-charged appointments are banned. Any vacancy in the Government post can only be filled up on the basis of open recruitment and no vacancy can be filled up even temporarily or in any other manner. It has been further clarified that any appointment made on ad-hoc basis would be treated as null and void. The same position has been reiterated in another Office Memorandum dated 05.07.2019 whereby instructions on the Personal Information Management System [PIMS] were notified. In the Office Memorandum dated 05.07.2019 also, it is reiterated that appointments on contract basis/ad-hoc/fixed/casual/work-charged, etc., are banned w.e.f. 06.06.2016. In the face of such policy directives of the State Government, despite notified vide Office Memorandum dated 06.06.2016, the petitioner came to be appointed as a LDA –cum- Counter Assistant on casual/temporary basis by virtue of the Order dated 28.02.2017 by the respondent no.
In the face of such policy directives of the State Government, despite notified vide Office Memorandum dated 06.06.2016, the petitioner came to be appointed as a LDA –cum- Counter Assistant on casual/temporary basis by virtue of the Order dated 28.02.2017 by the respondent no. 2, which was in clear violation of the State Policy relating to ban on any appointment, other than by way of appointment through open advertisement. 10. On perusal of the Letter dated 01.03.2022 of the respondent no. 2, it is noticed that the State Government has introduced a system for payment of salaries and wages through e-Bill Payment System based on the Personal Information Management System [PIMS]. By the said Letter, it was informed to the Deputy Commissioners that on and from March, 2022, only e-Pay Bill System based on PIMS would be operational and no other system for payment of salaries and wages would be in force. Observing that the Deputy Commissioners had made certain contingency/casual appointments in their offices on exigency and as stop gap arrangement till the conduct of the recruitment processes through District Level Recruitment Board, the Deputy Commissioners were informed not to continue with such contingency/casual appointments beyond 28.02.2022 and they were further directed to terminate all such contingency/casual appointees immediately. It was only pursuant to the Letter dated 01.03.2022 of the respondent no. 2, the respondent no. 3 passed the Order of termination on 09.03.2022. 11. It is not in dispute that the petitioner was appointed on 28.02.2017 purely on temporary and casual basis and it was specifically mentioned in the Order dated 28.02.2017 that the services of the petitioner would liable to be terminated without any notice. The petitioner has not been able to demonstrate that by virtue of her continuance as a casual LDA –cum- Counter Assistant any right has been accrued to him either to be a regular appointee or to continue in that capacity for any fixed term. Unlike a regular appointee who is protected by the constitutional provision, a casual employee like the petitioner whose appointment was not preceded by any kind of advertisement and selection process, cannot claim protection under law for continuation of her service. By very nature of appointment, period of service of a casual/contingency employee is as per the requirement of the employer. The petitioner herein was only appointed on contingency/casual basis and as a stop gap arrangement.
By very nature of appointment, period of service of a casual/contingency employee is as per the requirement of the employer. The petitioner herein was only appointed on contingency/casual basis and as a stop gap arrangement. Whether a regular selection process for filling up a post by a selection process through the District Level Recruitment Board [DLRB] is immaterial if the employer finds that there is no necessity to continue with the engagement of a casual/contingency employee, who was appointed only as a stop gap arrangement. As such, the contention advanced by the learned counsel for the petitioner on the issue, after consideration, deserves to be rejected. 12. In Rajbinder Singh [supra], the petitioner was appointed for a term as an ad-hoc lecturer. Apprehending that he was likely to be removed from service before vacation, thereby, depriving him from his vacation salary, the petitioner approached the Court. The Hon’ble Supreme Court of India found that there was a practice of the respondents to appoint fresh people every time in place of ad-hoc lecturer. Finding that a number of writ petitions were earlier disposed of allowing the ad-hoc teachers to continue in service until persons regularly selected by the Public Service Commission were appointed in those posts, it was observed to be improper on the part of the respondent Colleges to drive the ad-hoc teachers to the Court. The ad-hoc teachers were allowed to continue until regularly selected persons were appointed. The position existed at the time when the decision in Rajbinder Singh [supra] was rendered is not applicable after the Constitution Bench decision in State of Karnataka vs. Umadevi, reported in [2006] 4 SCC 1. In any view, the fact that there was necessity of teachers in the colleges was discernible from the fact that after the vacation period, the colleges used to appoint teachers afresh and previously appointed ad-hoc teachers were used to be terminated prior to the vacation period. 13. In view of the above discussion and for the reasons assigned therein, this writ petition is found bereft of any merits and deserves to be dismissed. It is accordingly ordered. There shall, however, be no order as to cost. 14. At this stage, Mr. Jamir, learned counsel for the petitioner has submitted that the petitioner still has the age to apply for post in the State services as she is about thirty years of age as on date.
It is accordingly ordered. There shall, however, be no order as to cost. 14. At this stage, Mr. Jamir, learned counsel for the petitioner has submitted that the petitioner still has the age to apply for post in the State services as she is about thirty years of age as on date. As the petitioner has gained experience of about five years, observation be made as regards giving weightage to the petitioner in the event the petitioner submits her candidature for a regular vacancy in future through regular selection process. 15. Having regard to such submission made by Mr. Jamir, it is observed that if the petitioner applies for any regular vacancy in future commensurate with her educational qualifications and participate in the selection process, the petitioner will be at liberty to submit a application to give her weightage for the experience the petitioner gained during the period from 28.02.2017 to 01.03.2022 as a LDA –cum- Counter Assistant in the Office of the General Administration Rest House, Wokha under the establishment of the Deputy Commissioner, Wokha. In the event of filing such an application by the petitioner, it is expected that the concerned appointing authority would give due consideration to such application on its own merits and having regard to the position in law.