Partly allowed

Marsupu Ao and 18 Ors. v. State of Nagaland and 43 Ors.

Gauhati HC6 Sept 2019WP(C)/162/2015

Case brief

AI extract

What is this about?

Grade-IV employees of the Health Department at Mokokchung, appointed or regularised between 2004 and 2009, were dismissed after a Vigilance report found their appointments were made without sanctioned posts, their salary having been withheld since 2012. The court declined to quash the termination but directed payment of salary for the period actually served.

What did the court decide?

State respondents directed to pay petitioners' salary for 01.05.2012 to 29.04.2015 within three months; prayer to quash the impugned orders and notices refused.

Marsupu Ao and 18 Ors. Vs State of Nagaland and 43 Ors. — Service and Employment | Gauhati HC (2019)

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Page No.# 1/36

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GAHC020000032015

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH

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Case No. : WP(C) 162/2015

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1:MARSUPU AO AND 18 ORS CHOWKIDAR,O/O CMO,MOKOKCHUNG

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2: BENDANGMONGLA AO CHOWKIDAR O/O CMO MOKOKCHUNG

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3: TEMSUWATI MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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4: TEMSUMONGLA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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5: CHUNGPONGNUNGDEN AO DRESSER O/O CMO MOKOKCHUNG

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6: IMTITOSHI CHOWKIDAR O/O CMO MOKOKCHUNG

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7: IMKONGSUNEP MEDICAL ATTENDANT

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Page No.# 2/36

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O/O CMO MOKOKCHUNG

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8: LIMASANGLA AO MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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9: IMLIYANGER CHOWKIDAR O/O CMO MOKOKCHUNG

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10: TOSHISANGLA AO MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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11: MARKENMENLA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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12: SAKUPOKLA CHOWKIDAR O/O CMO MOKOKCHUNG

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13: TSUKNUNGMEREN AO LABORATORY ATTENDANT O/O CMO MOKOKCHUNG

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14: TSUKTILA AO MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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15: M ASUNGLA AO MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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Page No.# 3/36

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16: TEMJENJONGLA AO PEON O/O CMO MOKOKCHUNG

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17: MOARENLA AO SWEEPER O/O CMO MOKOKCHUNG

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18: RISHILEMLA AO MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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19: YASHINARO AO LABORATORY ATTENDANT O/O CMO MOKOKCHUN

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VERSUS

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1:STATE OF NAGALAND AND 43 ORS REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT.OF N/L,KOHIM

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2:COMMISSIONER AND SECRETARY HEALTH AND FAMILY WELFARE NAGALAND KOHIMA

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3:PRINCIPAL DIRECTOR HEALTH AND FAMILY WELFARE NAGALAND KOHIMA

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4:CHIEF MEDICAL OFFICER HEALTH AND FAMILY WELFARE NAGALAND MOKOKCHUNG

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5:IMNAMEREN

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Page No.# 4/36

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MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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6:IMNAIENLA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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7:NUKSHISUNEP LABORATORY ATTENDANT O/O CMO MOKOKCHUNG

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8:IMTIKUMZUK PEON O/O CMO MOKOKCHUNG

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9:IMTISENLA LABORATORY ATTENDANT O/O CMO MOKOKCHUNG

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10:IMSURENLA LABORATORY ATTENDANT O/O CMO MOKOKCHUNG

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11:MEYANUNGLA LABORATORY ATTENDANT O/O CMO MOKOKCHUNG

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12:PURTEMSU CHOWKIDAR O/O CMO MOKOKCHUNG

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13:TIARENLA MEDICAL ATTENDANT O/O CMO

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Page No.# 5/36

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MOKOKCHUNG

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14:IMKUMNARO MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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15:TIAKABA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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16:TASENYANGLA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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17:R.ASANGLA AO MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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18:LANUNUKSUNG SWEEPER O/O CMO MOKOKCHUNG

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19:OZUNGKALA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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20:ASENLA JAMIR MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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21:RONGSENLAR MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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Page No.# 6/36

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22:NUKRANGTILA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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23:SUPONGTSUBA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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24:K.CHUBA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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25:MONGSENSANGLA AIER MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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26:YASHILA AIER MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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27:BENDANGNARO MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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28:AOSENLA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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29:MEDEMKALA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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30:TIATULA

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Page No.# 7/36

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SWEEPER O/O CMO MOKOKCHUNG

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31:IMLITOLA PEON O/O CMO MOKOKCHUNG

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32:TEMSUIENLA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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33:Y.MOANUNGLA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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34:I.NAROLA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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35:IMTISENLA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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36:DESTINY MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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37:PANGERMANGYANG MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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38:TEMSUNARO MEDICAL ATTENDANT O/O CMO

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Page No.# 8/36

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MOKOKCHUNG

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39:IMSUMANEN MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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40:YUDANGBA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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41:IMLIYANGER MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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42:ASENJONGBA MEDICAL ATTENDANT O/O CMO MOKOKCHUNG

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43:KILENSUNGBA BASIC H.W. O/O CMO MOKOKCHUN

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Advocate for the Petitioner : TONGPOK PONGENER

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Advocate for the Respondent : GOVT ADV NL (R 1-4)

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BEFORE

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HON'BLE MR. JUSTICE S. SERTO

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JUDGEMENT

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Date : 06-09-2019

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Heard Mr. Tongpok Pongener, learned counsel for the petitioners. Also heard Mr. K. Sema, learned Sr. Addl. Advocate General assisted by Ms. Livika, learned Government Advocate on behalf of the State respondents, Mr. C.T. Jamir, learned Sr. counsel assisted by Mr. N. Longkumer on behalf of the respondent

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Page No.# 9/36

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No.8, Ms. Esther, learned counsel on behalf of the respondents No. 6 & 12 and Mr. Supongwati, learned counsel on behalf of the respondent No.7.

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The facts and circumstances which led to the filing of this writ petition are as follows;

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Between the year 2004-2009, the writ petitioners were appointed to various Grade-IV post under the establishment of the Chief Medical Officer, Mokokchung. The post to which they were appointed and the nature of their appointment and the dates on which they were appointed along with the Office Memos are given herein below;

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Petitioner No.	Name of the post	Nature & term of appointment	Appointment Order No. & date	Order issued by
1	Chowkidar	Contingency for 6 months	DHS- 3/117/CHOW/MGK/25 99-2601, 22/06/2004	Joint Director, Health Services, Kohima
2	Chowkidar	Contingency pay for 6 months	DHS- 3/117/CHOW/MGK/81- 86/4968-71, 30/6/2004	Joint Director, Health Services, Kohima
3	Medical Attendant	Contingency for 6 months	DHS-3/117/Grd- IV/DFWO/M/86- 87/5051-84, 14/07/2004	Dy. Director of Health Service, Kohima
4	Medical Attendant	Contingency for 1 year	DHS- 3/117/MA/MKG.81- 84/Pt-II/3425-27, 14/06/2006	Joint Director, Health Services, Kohima
5	Dresser	Regular	CMO- 1/13/IVGrd/2006- 07/2262-66, 04/01/2007	CMO, Mokokchung
6	Night Chowkidar	Regular	CMO- 1/13/IV/GRD/2006- 07/2270-75, 05/01/2007	CMO, Mokokchung
7	Medical Attendant	Regular	CMO-2/8/2006- 07/1154-58, 04/01/2008	CMO, Mokokchung
8	Medical Attendant	Regular	CMO-2/8/2006- 07/1550-60, 05/06/2008	CMO, Mokokchung
9	Chowkidar	Regular	CMO-2/8/2006- 07/637-31, 05/06/2008	CMO, Mokokchung

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			Page	No.# 10/36
10	Medical Attendant	Regular	CMO- 1/13/IV/GRD/2006- 07/883-88, 10/06/2008	CMO, Mokokchung
11	Medical Attendant	Regular	CMO-2/8/2006- 07/898-202, 15/06/2008	CMO, Mokokchung
12	Chowkidar	Regular	CMO-1/13/IV/2007- 08/2944-49, 20/01/2009	CMO, Mokokchung
13	Laboratory Attendant	Regular	CMO-1/13/IV/2007- 08/3721-26, 25/02/2009	CMO, Mokokchung
14	Medical Attendant	Regular	CMO-1/13/IV/2007- 08/3578-82, 26/02/2009	CMO, Mokokchung
15	Peon	Regular	CMO-1/13/IV/2007- 08/3547-52, 27/02/2009	CMO, Mokokchung
16	Peon	Regular	CMO-1/13/IV/2007- 08/3758-62, 12/03/2009	CMO, Mokokchung
17	Sweeper	Regular	CMO-1/13/IV/2007- 08/3820-25, 16/03/2009	CMO, Mokokchung
18	Medical Attendant	Regular	CMO-1/13/IV/2007- 08/3781-85, 20/03/2009	CMO, Mokokchung
19	Laboratory Attendant	Regular	CMO-1/13/IV/2007- 08/3688-92, 20/03/2009	CMO, Mokokchung

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The service of the petitioners No. 1, 2, 3 & 4 were extended from time to time till they were regularized vide order No. CMO-1/13/IV/2007-08/3514-18, dated 25.02.2009, vide order No. CMO-2/8/2006-07/6918-202, dated 25.03.2009, vide order No. CMO-1/13/IV/2007-08/3501-06, dated 27.02.2009 and vide order No. CMO-1/13/IV/2007-08/3280-85, dated 27.01.2009 respectively.

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Thereafter, the petitioners were informed to submit a copy each of their appointment order, a copy of their birth certificate, one photograph of passport size and one copy of service book (if available). The petitioners, accordingly, submitted the aforementioned documents and their respective service books were opened.

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While they were continuing in service, the Principal Director of Health & Family Welfare, Government of Nagaland, vide her letter No. DHFW-3/117/GrIV/General/2010(Pt), dated 30.04.2012, directed the Chief Medical Officers of all the districts to hold up the salaries of 159 staffs of the Department on the ground that their matters were under investigation by the Vigilance & Anti Corruption

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Page No.# 11/36

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Commission. In the case of the petitioners, it was mentioned that they were appointed without sanction post. The contents of the letter which is impugned herein in this writ petition are reproduced here below;

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” GOVERNMENT OF NAGALAND

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DIRECTORATE OF HEALTH & FAMILY WELFARE

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NAGALAND : KOHIMA

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No.DHFW-3/117/Gd-IV/General/2010(Pt)/500-01 Dated Kohima the 30^th April 2012

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To,

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The Chief Medical Officer,

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Wokha, Kiphire, Mokokchung, Zunheboto, Mon, Longleng, Dimapur

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Sub: Appointment made without sanctioned post/suspected forged signature.

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Sir,

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I am to invite a reference to the Government letter No. MED5AE/14/2005, dated Kohima the 29th June, 2011 and to direct you to take the following steps immediately for further necessary action.

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1………………. 2………………… 3. 33 nos of staffs under CMO Mokokchung.

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4……………….

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Total- 121

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All these staffs (list enclosed) were found to have been appointed without sanctioned post by the then respective CMO’s/Civil Surgeons.

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1……………….. 2………………. 3………………. 4………………. 5………………... 6………………..

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Total-38

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The appointment orders of these 18 staffs were found to be made under suspected forged signature of the Appointing Authority.

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In view of the above circumstances, the concerned Controlling Officer of the Districts are directed to held up the salaries of all these 159

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Page No.# 12/36

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staffs immediately since the matter is under investigation with the Vigilance and Anti Corruption Commission.

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Action taken may be intimated to the undersigned at the earliest. Kindly treat this matter on priority.

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Enclosed: List of the staffs.

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Yours faithfully,

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Sd/- (Dr. K.Yangerlemla)

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Principal Director, Health & Family Welfare,

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Nagaland : Kohima”.

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Consequent upon the letter of the Principal Director, Health & Family Welfare reproduced above, the Chief Medical Officer, vide letter No. CMO-2/20/III & IV Gd-(Pt-II)/2009-10/245, dated 18.05.2012, which is impugned herein informed the petitioners that since they have been appointed without sanction post by the then Chief Medical Officer their pay/salary is held up w.e.f. 01.05.2012 till investigation is completed by the Vigilance & Anti-Corruption Commission. The contents of the impugned letter are reproduced here below;

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” GOVERNMENT OF NAGALAND

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OFFICE OF THE CHIEF MEDICAL OFFICER

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MOKOKCHUNG : NAGALAND

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No. CMO-2/20/III&IV gd/Pt-II/2009-10/309 Dated Mkg the 18^th May 2012

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To,

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Shri/Smti………………… Designation……………..

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Posting place…………….

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Pay Held up

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In pursuance of Principal Director Health & Family Welfare Nagaland, Kohima order No. DHFW-3/117/gd-IV/general/2010(pt) 500-01 Dt. Kma the 30^th April 2012 you have been appointed without sanction post by the then Chief Medical Officer as a consequence your pay/salary is held up with effect from 01.05.2012 till the investigation is completed by the Vigilance and Anti Corruption Commission.

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Sd/- (Dr. N.Bendang Jamir) Chief Medical Officer, Mokokchung Nagaland”.

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Page No.# 13/36 5. Thereafter, the petitioners were directed to report at Vigilance Police Station, Kohima through the Notice dated 24.05.2012, issued by the Chief Medical Officer, Mokokchung, vide her Office Memo No. CMO-1/2/Off Admn/Confidential/2010-12/305. The contents of the notice is also reproduced here below;5. Thereafter, the petitioners were directed to report at Vigilance Police Station, Kohima through the Notice dated 24.05.2012, issued by the Chief Medical Officer, Mokokchung, vide her Office Memo No. CMO-1/2/Off Admn/Confidential/2010-12/305. The contents of the notice is also reproduced here below;

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” GOVERNMENT OF NAGALAND

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OFFICE OF THE CHIEF MEDICAL OFFICER

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NAGALAND : KOHIMA

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No.CMO-1/2/Off Adm/Confidential/2010-12/305/ Dated Kohima the 24^th May 2012

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To, Shri/Smti………………… Designation…………….. Posting place…………….

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NOTICE

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This is to inform you that as per notice received from the Vigilance and Anti-Corruption Nagaland, Kohima vide order No. RC-6/2011, Dt. 23/5/12. You are hereby directed to report at Vigilance Police Station Kohima along with your appointment order (original) for verification on 6^th June, 2012 at 10:00 A.M. without fail.

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THIS MAY BE TREATED AS NOTICE.

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Sd/- (Dr. N.Bendang Jamir)

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Chief Medical Officer, Mokokchung Nagaland”.

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In compliance to the direction given in the notice stated above, the petitioners reported before the Vigilance Police Station, Kohima on 06.06.2012 and when they did so their appointment orders were seized by the Vigilance Police Station but they were released on furnishing personal bonds. On completion of the investigation, the Vigilance & Anti Corruption Commission, vide their letter No. R.C-6/2011/646, dated 12.12.2012,

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Page No.# 14/36 forwarded the inquiry report to the Commissioner & Secretary to the Government of Nagaland, Health & Family Welfare Department and stated that the petitioners were appointed without mentioning or indicating the specific vacancies. The relevant portion of the same are reproduced here below;

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” VIGILANCE COMMISSION

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DIRECTORATE OF VIGILANCE & ANTI-CORRUPTION

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NAGALAND : KOHIMA

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No. RC-6/2011/646 :: Dated Kohima, the 12^th Dec./2012

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To,

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The Commissioner & Secretary to the Government of Nagaland, Health & Family Welfare Department, Kohima.

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Sub:- FORWARDING OF ENQUIRY REPORT AND EXAMINATION THEREOF.

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Sir,

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I have the honour to refer to the above subject and to forward herewith the names of 31(thirty one) employees under your deptt. who were appointed as a land owner’s candidate, appointment made against retirement vacancy, disabilities, transferred vacancy and existing vacancies mention but no specific vacancies has been indicated. The particulars of the employees are given below;

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1. Chief Medical Officer, Wokha : Land owners and transferred case.

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Sl.	Name	Appointed	Appointed by
No.		against
1 -	- -	- -	- -

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2. Chief Medical Officer, Mokokchung : Land owners death case and disability

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Sl. -	No.	Name -	Appointed against -	Appointed by -

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3. Chief Medical Officer, Kiphire : Land owners or existing vacancy.

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Sl. Name	Appointed	Appointed by

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		Page No.# 15/36
No. - -	against - -

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4. Chief Medical Officer, Zunheboto : Existing vacancy, Resignation and voluntary retirement.

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Sl. No.	Name	Appointed against	Appointed by
- -	- -	- -	- -

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5. Chief Medical Officer, Mokokchung

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1	Mr. Imtitoshi, Night Chowkidar	CMO Office Mokokchung	CMO-1/13/IV- GRD/2006-07, 05/01/07	Dr. N.Mhabemo Kithan, CMO
2	Smti. Tsuktila Ao, M/A	Merepkong Sub- Centre	CMO- 1/13/IV/2007-08, 26/2/09	Lt. Dr. Sutsungkoba, CMO
3	Smti. Temsumongla Ao, M/A	Moalenden Sub- centre	CMO- 1/13/IV/2007-08, 27/1/09	-do-
4	Mr. Chongpongnungden, Dresser	Tuli CHC	CMO-1/13/IV- GRD/2006-07	-do-
5	Mr. Imliyanger, Chowkidar	Alongkima PHC	CMO-2/8/2006- 07, 5/6/08	-do-
6	Mr. Imkongsunep, M/A	Longchem PHC	CMO-2/8/2006- 07, 10/6/08	-do-
7	Smti. Limasangla Ao, M/A	Ungma PHC	CMO-2/8/2006- 07, 5/4/08	-do-
-	-	-	-	-
-	-	-	-	-
10	Smti.Sakupokla Ao, Chowkidar	Kumlong S/C	CMO- 1/13/IV/2007-08	Lt. Dr. Sutsungkoba, CMO
11	Smti.Temjenjongla Ao, Peon	CMO Office Mokokchung	CMO- 1/13/IV/2007-08, 12/3/09	-do-
12	Mr. Marsupu, Chowkidar	Merepkong Sub- Centre	CMO- 1/13/IV/2007-08, 23/3/09	-do-
13	Smti. M.Asungla Ao, Peon	DIO Office, Mokokchung	CMO- 1/13/IV/2007-08, 27/2/09

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				Page No.# 16/36
14	Smti. Rishelemla Ao, M/A	Mangkolemba CHC	CMO- 1/13/IV/2007-08, 20/3/09
15	Smti.Bendangmongla Ao, Chowkidar	Aongza Sub- centre	DHS- 3/117/CHOW/M KG/81-86	Dr. U.N. Samuel, Joint Director Medical Services Kohima
16	Smti. Makenmenla Ao, M/A, DTC	District T.B Centre Mokokchung	CMO-2/8/2006- 07, 15/06/08	Dr. N.Mhabemo Kithan, CMO
17	Smti. Moarenla Ao, Sweeper	CMS Office Mokokchung	CMO- 1/13/IV/2007-08, 16/3/09	Lt. Dr. Sutsungkoba, CMO
18	Mr. Temsuwati, M/A	Merepkong Sub- centre	CMo- 1/13/IV/2007-08, 25/2/09	-do-
19	Smti. Yashinaro Ao, Lab. Attendant	Merangkong Dispensary	CMO- 1/13/IV/2007-08, 20/3/09	-do-
20	Mr. Tsuknungmeren Ao, Lab. Attendant	Ungma PHC	CMO- 1/13/IV/2007-08, 25/2/09	-do-
21	Mr. Toshisangba Ao, M/A	Tsurangkong PHC	CMO-1/13/IV- GRD/2006-07	-do-

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Since their pays were held up for more than a year, the petitioners submitted a representation dated 02.08.2013, to the Principal Director, Health & Family Welfare requesting her to release their salary. The same was forwarded by the Principal Director to the Commissioner & Secretary to the Government of Nagaland, Health & Family Welfare Department vide his letter dated 27.11.2013.

¶170

On 05.05.2014, the Principal Director, Health & Family Welfare Department, Government of Nagaland issued an Office Memo No. DHFW-3/117/gdIV/General/2010(Pt)/924-28 dated the same as per the decision taken by the Screening Committee headed by the Chief Secretary to the Government of Nagaland held on 17.07.2013 which was in pursuant to the report submitted by the Vigilance & Anti-Corruption Department. In that Office Memorandum, the petitioners were given 1(one) month’s notice as per one of the conditions mentioned in their appointment orders. The contents of the Office Memorandum which is impugned in this writ petition are reproduced here below;

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” GOVERNMENT OF NAGALAND

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DEPARTMENT OF HEALTH & FAMILY WELFARE

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NAGALAND : KOHIMA

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Page No.# 17/36^th May

¶175

No. DHFW-3/117/gd-IV/General/2010(Pt)/ Dated Kohima the 5 2014

¶176

OFFICE MEMORANDUM

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Whereas on careful examination on regular appointment made against the different Health units under CMOs/MS Office in Nagaland, it was observed that regular appointment were made without sanction post.

¶178

And whereas, the Department of Health & Family Welfare Nagaland cannot bear such illegal appointment to continue in the Department, which is totally irregular and unfounded in Government Rules because Government has not provided any budgetary support to pay the salaries of the staffs appointed without sanction posts.

¶179

Now, therefore, in view of the given situations and circumstances, the following staffs under different CMOs/MS establishments, on regular appointment without sanction post are hereby served with 1(one) month notice as per one of the conditions mentioned in the Appointment orders.

¶180

The list of the employees are enclosed as Annexure-I for information to all concerned and therefore all the CMOs/MS are hereby directed to carry out this Memorandum. Failing to comply with this directive, individual Officer shall be answerable.

¶181

This Memorandum is issued in pursuance of the decision made by the Screening Committee headed by the Chief Secretary, to the Government of Nagaland, held on 17^th July 2013, on the basis of the Vigilance & Anti Corruption Reports.

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Sd/- (Dr. Neiphi Kire)

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Principal Director, Health & Family Welfare Nagaland : Kohima”.

¶184

7. Thereafter, on 06.05.2014, a Corrigendum No. DHFW-3/117/gdIV/General/2010(Pt)/1374-78 was issued by the Principal Director, Health & Family Welfare Department, wherein it was stated that the 3^rd paragraph of the earlier Office Memorandum should be read as;

¶185

“Now therefore in view of the given situations and circumstances, the following staffs under different CMOs/MS establishments on regular appointment without sanction post are hereby served with 1(one) month show cause notice as to why their services should not be terminated.

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The effective date of this 1(one) month notice will be counted from the date of issue of this order”.

¶187

The full contents of the Corrigendum are also reproduced here below;

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Page No.# 18/36

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” GOVERNMENT OF NAGALAND

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DEPARTMENT OF HEALTH & FAMILY WELFARE

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NAGALAND : KOHIMA

¶192

No. DHFW-3/117/gd-IV/General/2010(Pt)/ Dated Kohima the 6^th May, 2014

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CORRIGENDUM

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Please read the third paragraph of the Directorate Office Memorandum No. DHFW-3/117/gd-IV/General/2010(Pt)/909-13, dated Kohima the 5^th May 2014 as follows;

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Now therefore in view of the given situations and circumstances, the following staffs under different CMOs/MS establishments on regular appointment without sanction post are hereby served with 1(one) month show cause notice as to why their services should not be terminated.

¶196

The effective date of this 1(one) month notice will be counted from the date of issue of this order.

¶197

The error is regretted.

¶198

Sd/- (Dr. Neiphi Kire)

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Principal Director, Health & Family Welfare

¶200

Nagaland : Kohima”.

¶201

In the case of 12(twelve) persons who were appointed in the same manner and in the same district, the Government of Nagaland took a different view on the ground that they were appointed on landownership basis, therefore, the Principal Director, Health & Family Welfare, Government of Nagaland directed the CMO’s/MS of the district to rectify and authenticate their landownership. The direction was given vide Office Memo No. DHFW-3/117/gd-IV/General/2010(Pt)/924-28, dated 05.05.2014.

¶202

In reply to the Office Memo dated 05.05.2014 and the Corrigendum dated 06.05.2014, the contents of which have already been reproduced herein above, the petitioners submitted a joint reply dated 27.05.2014, stating inter alia that subsequent to issuance of the order or orders holding up their pays the Department has made 50 temporary/adhoc appointments against the existing vacancy of Grade-IV post under the Chief Medical Officer, Mokokchung. This appointment shows that (the petitioners) they were not appointed without vacancies, as such, termination of their service

¶203

Page No.# 19/36 while retaining the service of 50 newly appointed employees would not be sustainable in law. That if some employees are to be terminated then the principle of first come last go must be applied. Their representation was forwarded to the Principal Director by the Chief Medical Officer, Mokokchung, vide his letter No. CMO-1/Apptt/III & IV gd/Pt-1/201213/249, dated 27.05.2014. When no action was taken as requested, the petitioners filed W.P.(C) No. 182(K) of 2014 praying for quashing and setting aside of the impugned letter dated 30.04.2011 and 18.05.2012 and the impugned Office Memorandum dated 15.05.2014 and the Corrigendum dated 06.06.2014, issued thereafter and issuance of an appropriate direction to release their pay which was held up. The writ petition was disposed of by this Court vide order dated 16.09.2014, whereby the respondents were directed to pass a speaking order by taking into consideration all the facts and circumstances. Subsequent to the order passed by this Court, the Director, Health & Family Welfare Department, Government of Nagaland, vide his letter No. DHFW-17/Legal/15/2014/918385, dated 12.11.2014, informed the counsel of the petitioners that the Government will look into the matter and decide judiciously. Soon thereafter, the Director, Health & Family Welfare Department, Government of Nagaland issued a show cause notice dated 20.11.2014, vide letter No. DHFW-3/117/Gd-IV/General/2010 (Pt)/9548, whereby the petitioner were directed to submit individual reply to the show cause notice dated 06.05.2014. As directed, the petitioners submitted their reply separately on 05.04.2014 taking the same stand as submitted in their joint reply. On 15.03.2015 another show cause notice was published in the local daily whereby the petitioners were directed to show cause within 1 month as to why their service should not be terminated. The contents of the show cause notice dated 20.11.2014 and 12.03.2015 are reproduced here below one after the other;

¶204

” GOVERNMENT OF NAGALAND

¶205

DIRECTORATE OF HEALTH & FAMILY WELFARE

¶206

NAGALAND : KOHIMA

¶207

No.DHFW-3/117/Gd-IV/General/2010(Pt)9548 Dated Kohima the 20^h Nov. 2014

¶208

Show cause Notice (Reminder)

¶209

Where as, in reference to Government of Nagaland Health and Family Welfare Department vide No. MED-5/AE/14/2005(Pt), dated

¶210

Page No.# 20/36

¶211

Kohima, the 14^th Nov. 2014, and in compliance with Hon’ble Gauhati High Court Kohima Bench, judgment and order dated 19-09-2014, passed in W.P.(C) No. 98(K)/2014.

¶212

And whereas, show cause notice was served to you vide No. DHFW-3/117/Gd-IV/General/2010(Pt)1374-78/ dated Kohima, the 6^th May 2014. However your show cause reply was not individual but collective in a single reply, which is not acceptable, reason being that the individual appointment is made against different post and in different situation as mentioned in appointment orders, accordingly your show caused reply is also being returned.

¶213

And whereas you are hereby show caused, as to why your appointment should not be cancelled/nullified on the ground that appointment is made unauthorized and illegal.

¶214

Now, therefore, 15^th (fifteen) days time is being given as deadline to submit the Show Caused reply, failing which your appointment shall be treated null and void.

¶215

Sd/- (Dr. G.Kemp)

¶216

Principal Director, Health & Family Welfare

¶217

Nagaland : Kohima”.

¶218

” GOVERNMENT OF NAGALAND

¶219

DIRECTORATE OF HEALTH & FAMILY WELFARE

¶220

NAGALAND : KOHIMA

¶221

No. DHFW-3/117/gd-IV/General/2010(Pt)/12799-805

¶222

Dated Kohima the 12^th March, 2015

¶223

SHOW CAUSE NOTICE

¶224

Whereas on thorough scrutiny and examination on regular appointment made against the different Health Units under CMOs/MS Office in Nagaland, it was observed that regular appointments were made without sanction post.

¶225

Therefore, in pursuance of Government of Nagaland, Department of Health & Family Welfare letter No. MED-5/AE/14/05 Dated Kohima the 18^th Feb. 2015 and in consonance with the Final Report of the Vigilance & Anti Corruption Police Department letter No. RC-6/2011/761 Dated Kohima the 4^th Dec. 2014 the following personnel under different CMOs/MS

¶226

Page No.# 21/36

¶227

establishment under the Department of Health & Family Welfare are hereby issued a one month show cause notice as to why their services should not be terminated.

¶228

The list of the employees are enclosed as Annexure-I for information to all concerned and all the CMOs/MS are hereby directed to carry out this Memorandum. Failing to comply with this directive, individual Officer shall be answerable.

¶229

The effective date of this 1(one) month notice will be counted from the date of issue of this order.

¶230

No further correspondence will be entertained after the effective date is over and the appointments will be treated as null and void .

¶231

Sl. No.	Name	Designation	Health Unit	Date of Appointmen t
1	-	-	-	-
-	-	-	-	-
-	-	-	-	-
64	Imtitoshi	Night Chowkidar	CMO Office (MKG)	05.01.2007
65	Tsuktila Ao	M.A	MerepkongS/C(MKG)	26.02.2009
66	Temsumongla Ao	M.A	Moalenden S/C(MKG)	27.01.2009
67	Chongpongnungden	Dresser	Tuli CHC(MKG)	-
68	Imliyanger	Chowkidar	Alongkima PHC (MKG)	05.06.2008
69	Imkongsunep	M.A	Longchem PHC(MKG)	10.06.2008
70	Limasangla Ao	M.A	Ungma PHC(MKG)	05.04.2008
71	-	-	-	-
72	-	-	-	-
73	Sakupokla Ao	Chowkidar	KumlongS/C(MKG)	-
74	Temjenjongla Ao	Peon	CMO Office(MKG)	12.03.2009
75	Marsupu	Chowkidar	MerepkongS/C(MKG)	23.03.2009
76	M.Asungla Ao	Peon	D.I.O Office(MKG)	27.02.2009
77	Rishelemla Ao	M.A	Mangkolemba CHC	20.03.2009
78	Bendangmongla Ao	Chowkidar	Aongza S/C(MKG)	-
79	Makenmenla Ao	M.A	District Tb Centre(MKG)	15.06.2008
80	Moarenla Ao	Sweeper	CMO Office(MKG)	16.03.2009
81	Temsuwati	M.A	MerepkongS/C(MKG)	25.02.2009
82	Yashinaro Ao	Lab. Attd.	Merangkong Dispensary (MKG)	20.03.2009

¶232

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¶233

83	Tsuknungmeren Ao	Lab. Attd.	Ungma PHC(MKG)	25.02.2009
84 -	Toshisangba Ao -	M.A -	Tsurangkong PHC(MKG) -	- -

¶234

Sd/- (Dr. G.Kemp)

¶235

Principal Director, Directorate of Health & Family Welfare

¶236

Nagaland : Kohima”.

¶237

As per the direction, the petitioners once again submitted their reply on 26.03.2015. After the reply was submitted the impugned order No. DHFW-3/117/Gd-IV/General/2010(Pt)/927-33, dated 29.04.2015 was issued by the Principal Director, Health & Family Welfare Department, Government of Nagaland, whereby the petitioners along with others who were similarly situated were dismissed from service w.e.f. 30.04.2012. The relevant portions of the dismissal order which is one of the orders impugned herein are reproduced here below;

¶238

” GOVERNMENT OF NAGALAND

¶239

DIRECTORATE OF HEALTH & FAMILY WELFARE

¶240

NAGALAND : KOHIMA

¶241

No. DHFW-3/117/Gd-IV/General/2010(Pt)/Dated Kohima the 29^h April, 2015

¶242

ORDER

¶243

In pursuance of Government of Nagaland, Department of Health & Family Welfare, Nagaland, Kohima letter No. MED-5/AE/14/2005/337 Dated Kohima the 28^th April 2015, in consonance with the directive given by the Screening Committee headed by the Chief Secretary, Nagaland on 17^th July 2013, and in view of the Final Report submitted by the Vigilance and Anti Corruption Police Department letter No. RC-6/2011/761 dated 04.12.2014, the under mentioned personnel against various Health units in Nagaland whose Appointments were made on Regular basis without any sanctioned posts are hereby dismissed and declared null and void w.e.f. 30^th April 2012.

¶244

Page No.# 23/36

¶245

Sl. No.	Name	Designation	Health Unit	District
1	-	-	-	-
-	-	-	-	-
-	-	-	-	-
64	Imtitoshi	Night Chowkidar	CMO Office	Mokokchung
65	Tsuktila Ao	M.A	MerepkongS/C	Mokokchung
66	Temsumongla Ao	M.A	Moalenden S/C	Mokokchung
67	Chongpongnungden	Dresser	Tuli CHC	Mokokchung
68	Imliyanger	Chowkidar	Alongkima PHC	Mokokchung
69	Imkongsunep	M.A	Longchem PHC	Mokokchung
70	Limasangla Ao	M.A	Ungma PHC	Mokokchung
71	-	-	-	-
72	-	-	-	-
73	Sakupokla Ao	Chowkidar	KumlongS/C	Mokokchung
74	Temjenjongla Ao	Peon	CMO Office	Mokokchung
75	Marsupu	Chowkidar	MerepkongS/C	Mokokchung
76	M.Asungla Ao	Peon	D.I.O Office	Mokokchung
77	Rishelemla Ao	M.A	Mangkolemba CHC	Mokokchung
78	Bendangmongla Ao	Chowkidar	Aongza S/C	Mokokchung
79	Makenmenla Ao	M.A	District Tb Centre	Mokokchung
80	Moarenla Ao	Sweeper	CMO Office	Mokokchung
81	Temsuwati	M.A	MerepkongS/C	Mokokchung
82	Yashinaro Ao	Lab. Attd.	MerangkongDispensary	Mokokchung
83	Tsuknungmeren Ao	Lab. Attd.	Ungma PHC	Mokokchung
84 -	Toshisangba Ao -	M.A -	TsurangkongPHC -	Mokokchung -

¶246

The concerned Controlling Officers of the Districts are hereby directed to take necessary action accordingly.

¶247

Sd/- (Dr. Neikietuo Chiesotsu)

¶248

Principal Director, Directorate of Health & Family Welfare

¶249

Nagaland : Kohima”.

¶250

11. Being aggrieved by the actions of the respondents all of which culminated into their dismissal service, the petitioners has come before this Court by filing the instant writ petition praying for issuance of a writ in the

¶251

Page No.# 24/36 nature of Certiorari and or Mandamus and or any other writ or order or direction quashing and setting aside the impugned letter No. DHFW3/117/Gd-IV/General/2010(Pt), dated 30.04.2012,, the impugned letter NO. CMO-2/20/III & IV gd/Pt-11/2009-10/245, dated 18.05.2012, the impugned Office Memorandum No. DHFW-3/117/gd-IV/General/2010(Pt)/909-13, dated 05.05.2014, the impugned Corrigendum No. DHFW-3/117/gdIV/General/2010(Pt)/1374-78, dated 30.04.2012, the impugned orders appointing the respondents No. 5 to 44, dated 06.08.2012, 17.08.2012, 11.10.2012, 10.10.2012, 23.07.2012, 04.12.2012, 21.12.2012, 10.10.2012, 16.09.2013, 21.12.2013, 16.09.2013, 16.09.2013, 03.10.2012, the impugned show cause notice (Reminder) dated 20.11.2015, the impugned final enquiry report dated 04.12.2014, the impugned show cause notice dated 12.03.2015 and the impugned order dated 29.04.2015, and to direct the respondents to immediately reinstate them in service and also release their pay/salary for the period from 01.05.2012.

¶252

Mr. Tonpok Pongener, learned counsel for the petitioners submitted that the petitioners no longer have any grievance against the respondents No. 12, 29 & 44.

¶253

The learned counsel thereafter, submitted that the petitioners were appointed/regularized by the C.M.O, Mokokchung district who was competent to issue such order, therefore, there is nothing that makes the appointment/regularization of the petitioners service illegal. Further, the learned counsel submitted that the report of the Vigilance Commission only stated that in the appointment/regularization orders of the petitioners no specific vacancy was mentioned but did not state that there was no vacancy. Therefore, to conclude that the petitioners were appointed/ regularized without sanctioned post would not be justified.

¶254

Mr. Tongpok Pongener also submitted that soon after the removal of the petitioners based on the report of the Vigilance Commission, the private respondents were appointed on ad hoc against sanctioned post, therefore, to say that there was no sanctioned post when the petitioners were appointed would not be correct. The learned counsel thereafter submitted also that there were other people who were appointed at the same time

¶255

Page No.# 25/36 along with the petitioners but they were deliberately exempted from the purview of the enquiry conducted by the Vigilance Commission unlike the petitioners. This is nothing but discrimination between the similarly situated persons. To justify such action, the respondents should make reasonable classification between the two groups and unless they do so the rights of the petitioners guaranteed under Article 14 & 16 of the Constitution of India would be violated.

¶256

Mr. Tongpok Pongener referred to judgment of the Hon’ble Supreme Court in the following cases;

¶257

(i) E.P. Royappa –versus- State of Tamil Nadu & Others , reported in AIR 1974 SC 555 , para-85, and

¶258

(ii) Union of India & Others -versus- N.S. Rathnam & Sons , reported in (2015) 10 SCC 681 , para- 13 & 14.

¶259

The contents of the paragraphs of the judgments in the two cases given above are reproduced here below one after the other;

¶260

(i) E.P. Royappa –versus- State of Tamil Nadu & Others , para85.

¶261

“85. The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground, it is really in substance and effect merely an aspect of the second ground based on violation of 14 and 16. Art. 16 embodies the fundamental guarantee that Arts. 14 as there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Art. 16 is only an instance of the application of the concept of equality enshrined in Art. 14. In other words, Art. 14 is the genus while Art 16 is a species, Art. 16 gives e ffect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose J., "a way of fife", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any ;attempt to truncate its all-embracing scope and meaning, for to do so Would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed cabined and confined" within

¶262

Page No.# 26/36 traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Arts. 14 and 16 strike at arbitrariness in State action an( ensure fairness and equality of treatment. They require that State action must be based on valent relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Arts. 14 and 16. Mala fide exercise of Power and arbitrariness are different lethal radiations emanating from the same vice : in fact the matter comprehends the former. Both are inhibited by Arts. 14 and 16.”

¶263

(ii) Union of India & Others -versus- N.S. Rathnam & Sons , para- 13 & 14.

¶264

“13. It is, thus, beyond any pale of doubt that the justiciability of particular Notification can be tested on the touchstone of Article 14 of the Constitution. Article 14, which is treated as basic feature of the Constitution, ensures equality before the law or equal protection of laws. Equal protection means the right to equal treatment in similar circumstances, both in the privileges conferred and in the liabilities imposed. Therefore, if the two persons or two sets of persons are similarly situated/placed, they have to be treated equally. At the same time, the principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position. It would mean that the State has the power to classify persons for legitimate purposes. The legislature is competent to exercise its discretion and make classification. Thus, every classification is in some degree likely to produce some inequality but mere production of inequality is not enough. Article 14 would be treated as violated only when equal protection is denied even when the two persons belong to same class/category. Therefore, the person challenging the act of the State as violative of Article 14 has to show that there is no reasonable basis for the differentiation between the two classes created by the State. Article 14 prohibits class legislation and not reasonable classification.

¶265

What follows from the above is that in order to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differential which distinguishes persons or things that are grouped together from others left out of the group and (ii) that, that differential must have a rational relation to the object sought to be achieved by the statute in question. If the

¶266

Page No.# 27/36 government fails to support its action of classification on the touchstone of the principle whether the classification is reasonable having an intelligible differentia and a rational basis germane to the purpose, the classification has to be held as arbitrary and discriminatory. In Sube Singh v. State of Haryana[5], this aspect is highlighted by the Court in the following manner:

¶267

“ 10. In the counter and the note of submission filed on behalf of the appellants it is averred, inter alia, that the Land Acquisition Collector on considering the objections filed by the appellants had recommended to the State Government for exclusion of the properties of appellants 1 and 3 to 6 and the State Government had not accepted such recommendations only on the ground that the constructions made by the appellants were of 'B' or 'C' class and could not be easily amalgamated into the developed colony which was proposed to be built. There is no averment in the pleadings of the respondents stating the basis of classification of structures as 'A' 'B' and 'C' class, nor is it stated how the amalgamation of all 'A' class structures was feasible and possible while those of 'B' and 'C' class structures was not possible. It is not the case of the State Government and also not argued before us that there is no policy decision of the Government for excluding the lands having structures thereon from acquisition under the Act. Indeed, as noted earlier, in these cases the State Government has accepted the request of some land owners for exclusion of their properties on this very ground. It remains to be seen whether the purported classification of existing structures into 'A', 'B' and 'C' class is a reasonable classification having an intelligible differential and a rational basis germane to the purpose. If the State Government fails to support its action on the touchstone of the above principle then this decision has to be held as arbitrary and discriminatory. It is relevant to note here that the acquisition of the lands is for the purpose of planned development of the area which includes both residential and commercial purposes. That being the purpose of acquisition it is difficult to accept the case of the State Government that certain types of structures which according to its own classification are of 'A' class can be allowed to remain while other structures situated in close vicinity and being used for same purposes (residential or commercial) should be demolished. At the cost of repetition, it may be stated here that no material was placed before us to show the basis of classification of the existing structures on the land proposed to be acquired. This assumes importance in view of the specific contention raised on behalf of the appellants that they have pucca structures with R.C. roofing, Mozaic flooring etc. No attempt was also made from the side of the State Government to place any architectural plan of different types of structures proposed to be constructed on the land notified for acquisition in support of its contention that the structures which exist on the lands of the appellants could not be amalgamated into the plan.”

¶268

Page No.# 28/36

¶269

Mr. Tongpok Pongener then submitted that if the petitioners were to be removed from service those who were appointed after them should have been removed first according to the principle of first come last go. The learned counsel further submitted that the petitioners should have been retained atleast on adhoc.

¶270

The learned counsel further submitted that the termination order of the petitioners issued by the respondents was illegal because, it was issued with retrospective effect depriving thereby the petitioners benefits of their past service.

¶271

Furthermore, the learned counsel submitted that in the enquiry conducted by the Vigilance Commission in gross violation of the principle of natural justice no chance of being heard was given to the petitioners, therefore, the whole process taken up by the respondents for removal of the petitioners from service was illegal.

¶272

Lastly, Mr. Tonpongok Pongener submitted that the respondents were directed by this Court in the writ petition filed earlier to pass speaking order but no speaking order was passed. The learned counsel continued and submitted that the decision of the State Government is quasi judicial, therefore, reasons must be given specially when it relates to removal of Government servant from service.

¶273

The learned counsel in support of his submission cited the decision of the Hon’ble Supreme Court in the case of Kranti Associates Private Limited & Another –versus- Masood Ahmed Khan & Others , reported in (2010) 9 SCC 496 . The relevant paras-47 & 48.

¶274

The learned counsel also referred to decision of the Hon’ble Supreme Court in the case of B.A Linga Reddy & Others –versus - Karnataka State Transport Authority & Others, reported in (2015) 4 SCC 515 , para-25 to 26. The relevant paragraphs of the two judgments mentioned above are reproduced herein below one after the other;

¶275

(i) Kranti Associates Private Limited & Another –versus- Masood Ahmed Khan & Others , para-47 & 48.

¶276

“47. Summarizing the above discussion, this Court holds:

¶277

a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

¶278

b. A quasi-judicial authority must record reasons in support of its conclusions.

¶279

c. Insistence on recording of reasons is meant to serve the wider principle

¶280

Page No.# 29/36

¶281

of justice that justice must not only be done it must also appear to be done as well.

¶282

d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

¶283

f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

¶284

g. Reasons facilitate the process of judicial review by superior Courts.

¶285

h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

¶286

j. Insistence on reason is a requirement for both judicial accountability and transparency. k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.

¶287

m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".

¶288

o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement

¶289

Page No.# 30/36

¶290

of giving reasons for the decision is of the essence and is virtually a part of "Due Process".

¶291

For the reasons aforesaid, we set aside the order of the National Consumer Disputes Redressal Commission and remand the matter to the said forum for deciding the matter by passing a reasoned order in the light of the observations made above. Since some time has elapsed, this Court requests the forum to decide the matter as early as possible, preferably within a period of six weeks from the date of service of this order upon it”.

¶292

(ii). B.A Linga Reddy & Others –versus- Karnataka State Transport Authority & Others , para- 25 & 26.

¶293

“25. Now we come to the order passed in the instant case with respect to the Bellary Scheme which is to the following effect :

¶294

"The objections and representations received in this regard is examined and the arguments advanced by the representatives of the STUs and private operators for and against the modification proposed by the State Government is considered in the light of the provisions of the Motor Vehicles Act, 1988.

¶295

Sec. 102 of the M.V.Act, 1988 empowers the State Government, at any time, if it consider necessary in the public interest so to do, modify any approved scheme.

¶296

Therefore, what is paramount for modifying the scheme is that it should be in the public interest. The modification now proposed is necessitated in view of the stand taken by the Hon'ble Supreme Court of India in Ashrafulla Khan's case reported in AIR 2002 SC 629. During the period from 04.12.1995 and 14.01.2002, considering the interpretation with regard to the words "overlapping", "intersection" and "corridor restriction" of the Hon'ble High Court of Karnataka, the Transport Authorities have granted the permits to the private operators in accordance with the provisions of M.V.Act, 1988 and rules made thereunder considering the need of the travelling public, as these operators are meeting the genuine demands of the travelling public in excess of the services provided by the STUs. Hence, it has become necessary to save all the permits, granted by the RTAs which were in operation as on 1.4.2002 in the interest of the travelling public.

¶297

Therefore, on the facts and averments made before me, I do not find the sufficient grounds is established to support the objections and representations received and made in person opposing the modification of the approved Bellary and Raichur schemes published in Notification No.HD/22/TMP/64 Dated 18.4.64 and TD/140/TMI/82, dated 03.11.1987. Hence, the draft notification modifying the above schemes published in

¶298

Page No.# 31/36 Notification No.HTD/122/TMA97 dated 25.10.2002 is upheld and approved. All the permits held as on 1.4.2002 are saved with the condition that they shall not pick up of set down passengers except in the bus stands."

¶299

It is apparent that there is no consideration of the objections except mentioning the arguments of the rival parties. Objections both factual and legal have not been considered much less reasons assigned to overrule them. Even in brief, reasons have not been assigned indicating how objections are disposed of”.

¶300

17. Mr. K. Sema, learned Sr. Addl. Advocate General appearing for the State respondents defended the dismissal of the petitioners as follows;

¶301

At the very outset, the learned Sr. Addl. Advocate General submitted that the principle of law submitted by the learned counsel of the petitioners are not disputed but those principles would be applicable only if the petitioners can justify that their appointment were legal and that they have enforceable legal right. The learned Sr. Addl. Advocate General went on to submit that the petitioners have no enforceable right. Elaborating his submission, the learned Sr. Addl. Advocate General submitted that the petitioners’ appointment was illegal as they were appointed without sanctioned post, therefore, no writ can be issued to enforce their claim.

¶302

The learned Sr. Addl. Advocate General further submitted that the petitioners did not challenged the appointment of the persons with whom they claim to have been similarly situated and they did not make them party in the case. Moreover, they cannot claim equality with people whom they admitted were also illegally appointed. Equality under Article 14 of the Constitution is a positive concept and not negative concept.

¶303

The learned Sr. Addl. Advocate General submitted that the doctrine of reasonable classification can be invoked only if the petitioners can proof that their appointments were valid. Otherwise, the principle of law relied upon would not be applicable. The learned Sr. Addl. Advocate General also submitted that the case of the petitioners is covered by the judgment passed in W.P.(C) No. 105(K) of 2015 as the facts and circumstances of the petitioners in this case and in that case are similar, however, if this Court has a different opinion the matter can only be referred to a larger Bench.

¶304

Page No.# 32/36

¶305

Thereafter, the learned Sr. Addl. Advocate General submitted that the petitioners’ challenge in this writ petition includes the report of the Vigilance Commission on the basis of which their services was terminated however, the Vigilance Commission Department who authored the report have not been arrayed as a party. The learned Sr. Addl. Advocate General drew the attention of this Court to the letter dated 30.04.2012 of the Principal Director addressed to the Chief Medical Officer, Wokha, Kiphire, Mokokchung, Zunheboto, Mon, Longleng & Dimapur and pointed out that 33 numbers of staffs under Chief Medical Officer, Mokokchung were identified as appointed without sanctioned post. He then submitted that the petitioners were among those 33 staffs, therefore, an enquiry was conducted by the Vigilance Commission & Anti Corruption and it was based on the report of the Vigilance Commission that the petitioners were dismissed from service. Therefore, the petitioners have no case at all.

¶306

The learned Sr. Addl. Advocate General submitted that concerning the petitioners claim for salary for the period they have worked this Court may pass appropriate order as a Division Bench of this Court in W.A No. 11(K) of 2017 arising out of W.P.(C) No. 105(K) of 2015 and W.P.(C) No. 133(K) of 2015 has allowed the prayer of similarly situated persons.

¶307

Mr. Sema also submitted that the persons who were appointed after the dismissal of the petitioners were appointed against non sanctioned post and on adhoc to meet the exigencies and with the approval of the Government, therefore, the submission of the petitioners that their appointment shows that there was sanctioned post is without any basis. Lastly, Mr. K.Sema submitted that since the petitioners and the persons appointed after them were appointed under different circumstances, the plea that adhoc cannot be replaced by an other adhoc will not be sustainable.

¶308

18. Mr. C.T. Jamir, learned Sr. counsel appearing for the respondents No. 8 submitted that he is in agreement with the submission of the learned Sr. Addl. Advocate General, therefore, it would be more of a repeatation if he

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Page No.# 33/36

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has to submit any further. However, the learned Sr. counsel submitted that the appointment of the respondent No.8 in no way affected the petitioners’ right, therefore, their case against the respondents has no basis at all.

¶311

The learned Sr. counsel further submitted that the writ of mandamus can be issued only when a petitioner in a writ petition can show that he has legally enforceable right and his right has been violated or illegally taken away. However, in this case, since the petitioners have not shown that they have any legally enforceable right the writ of mandamus would not lie. The learned Sr. counsel further submitted that the petitioners should be able to show that they were appointed against sanctioned post but since they have failed to do so they have no legally enforceable right.

¶312

19. Ms. Esther, learned counsel appearing for the respondents No. 6 & 12 submitted that there is no reason for interference on the appointment of the respondent No.12 since the petitioners has already submitted that they have no longer any grievance against his appointment.

¶313

The learned counsel also submitted that in regard to the appointment of the respondent No.6 it was on landownership basis, therefore, she and the petitioners are not similarly situated. Moreover, her appointment was not against any of the post held by the petitioners, therefore, the petitioners cannot have any grievances against her.

¶314

20. Mr. Supongwati Walling, learned counsel appearing for the respondent No.7 submitted that the respondent No.7 was appointed against a clear vacancy arising due to the voluntary retirement of his father, therefore, his case stands on different footing then the case of the petitioners.

¶315

21. Pursued the document filed by the petitioners and considered the submissions of the learned counsels of all the parties. I have also gone through the judgment submitted by the learned counsels.

¶316

The most important issue involved in this case is whether the petitioners were appointed against duly sanctioned post or not. By going through the appointment regularization/orders of the petitioners, I find no mention made regarding the sanction order numbers of the post against

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Page No.# 34/36 which each of them were appointed/regularized. It is normal practice that whenever appointment orders are issued the sanctioned post against which such appointments are made are mentioned. Since in the case of the petitioners no such mention is made prima facie it has to be accepted that they were appointed without post, therefore, it become their burden to proof that they were appointed against sanctioned post. That burden has not been discharged by the petitioners satisfactorily.

¶318

The argument of Mr. Tongpok Pongener, learned counsel for the petitioners that right after removal of the petitioners some other people were appointed and that shows that there were sanctioned post and the petitioners were appointed against such sanctioned post does not hold much water. Because, the learned Sr. Addl. Advocate General, Mr. K.Sema has submitted that the persons who were appointed after the removal of the petitioners were appointed against non sanctioned post and on adhoc.

¶319

Secondly, existence of sanctioned post at the time the petitioners were appointed will not make any difference unless each of them were appointed against specific sanctioned post. Unless, the petitioners proof that there were vacancy and they were appointed against specific sanctioned post their claim that their legal rights have been violated has no basis and when they have no legal right no mandamus can be issued. Further, on perusal of the report of the Vigilance Commission and the other related documents, I find no reason to doubt on the findings made by the Commission. It appears to me that thorough enquiry has been conducted before arriving at the conclusion. As such, there can be no other conclusion than this that the petitioners were appointed without sanctioned post and, therefore, their appointments were illegal.

¶320

The second issue involved in this case is whether the petitioners were given chance of being heard or not. By their very admission, the petitioners were given chance of submitting representations after representations besides appearing before the Vigilance Police. Their representations were also submitted after the show cause notice was given. Perusal of the show

¶321

Page No.# 35/36 cause notice and the representations submitted by the petitioners shows that sufficient opportunity was given to the petitioners to submit their case. Therefore, the plea of the petitioners that they were denied the opportunity of being heard does not appear to be correct.

¶322

The third issue involved is whether by applying the principle of first come last go, the petitioners could have been retained on adhoc at least since they have been appointed/regularized in service rightly or wrongly. As already stated while discussing the first issue, the petitioners have no legal right over their appointment since the same was illegal, therefore, they could not have been retained on adhoc in preference to the newly appointed persons. The appointment of the private respondents has nothing to do with them. The Government has the power or right to appoint to meet exigencies and that has nothing to do with the petitioners who were dismissed from service as their appointments were not against sanctioned post.

¶323

The fourth issue involved is whether any discrimination have been committed against the petitioners or not. When such question is raised the first thing the petitioners must proof is that they had a legal right. Without that they could not have made a valid or legitimate claim of being discriminated. For the question of discrimination would arise only when one has a legal right as stated above. In other words, since the petitioners were appointed against non sanctioned post they have no legal right over their respective appointments. As such, the question of discrimination does not arise.

¶324

23. The last issue is whether the petitioners would be entitled to their pay and allowances from the date their pays were held up i.e. 01.05.2012 till the date their services were terminated i.e. 29.04.2015. This issue has been settled by a Division Bench of this High Court in W.A No. 11(K) of 2017 which arose out of two writ petitions i.e. W.P.(C) No. 105(K) of 2015 and W.P.(C) No. 113(K) of 2015. In that the Court had decided that the appellants i.e. the petitioners in the two writ petitions should be paid their

¶325

Page No.# 36/36 salary for the service rendered by them. The appeal as stated arose out of the judgment passed in the two writ petitions in which the learned Single Judge in a similar case had dismissed the prayer of the petitioners to quash and set aside the order dismissing them from service and also to direct the respondents to pay them their salary for the same period as in this case. The State respondents not being satisfied had gone to the Supreme Court by filing SLP and the same was dismissed. Following the same in other similar cases also this Court had allowed such prayers.

¶326

Taking into consideration the above facts and circumstances and the fact that the petitioners were serving and their service were utilized by the Government during the period between 01.05.2012 to 29.04.2015, this Court is of the view that they also should be paid their salary for the said period. Accordingly, the State respondents are directed to pay the salary of the petitioners for the period from 01.05.2012 to 29.04.2015 within a period of 3(three) months from the date of receipt of a certified copy of this order. However, as for the prayer for quashing and setting aside the impugned letters, O.Ms, corrigendum, show cause notice and the orders the same is not conceded to.

¶327

The writ petition is disposed in terms of what has been stated above.

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Sd/-

¶329

JUDGE

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Comparing Assistant

Marsupu Ao and 18 Ors. v. State of Nagaland and 43 Ors.

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Marsupu Ao and 18 Ors. v. State of Nagaland and 43 Ors.

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