PHYODEMO EZUNG Vs. STATE OF NAGALAND

JUDGEMENT

(1.) Heard Mr. A. Zho, learned counsel for the petitioners and Mr. K. Sema, learned Addl. A.G., Nagaland on behalf of the respondents. By this application under Article 226 of the Constitution of India, the writ petitioners have prayed for a direction to the respondents for release of their salaries to them. As many as 18 petitioners have approached this Court stating that they have been working as Grade-IV staff in different capacities since 2007-08 on being appointed by the Chief Medical Officer, Wokha (respondent No. 4 herein). The appointment letter has been annexed as Annexure-1 (series) to the writ petition. Although at paragraph 3 of the writ petition the petitioners pleaded that the State respondents stopped paying their salaries, yet at the time of argument, learned counsel for the petitioners fairly submitted that they were never paid any salary at any point of time. It is the further case of the petitioners that at least 14 similarly situated persons named in paragraph 3 of the writ petition have been receiving salaries and as such, the purported objection of the respondents in not paying salaries on the ground that the petitioners have been working against non sanctioned post is not sustainable. The petitioner further stated in paragraph 5 of the writ petition that at least 3 more persons have been appointed as Grade-IV staff during the period 2009-2011 and as such it does not fit in the mouth of the respondents to say that there was no sanctioned post to be filled up.

(2.) The respondents have filed affidavit-in-opposition. The affidavit is sworn by none other than the Commissioner & Secretary to the Government of Nagaland in the Department of Health & Family Welfare. In paragraph 3 of the affidavit-in-opposition, the respondents have categorically stated that the Department is not utilizing the services of the petitioners and that their joining was also not accepted by the Department at any point of time. Although an affidavit in reply has been filed by the writ petitioners against the affidavit-in-opposition submitted by the Government, yet no evidence could be placed on record to show that the writ petitioners really had been rendering service pursuant to their appointment by Annexure-1 (series). It is the specific case of the respondents that the then Chief Medical Officer issued the Annexure-1 (series) appointment letters without there being any selection process and more objectionably when there was no vacancy at all. In course of argument, the learned Addl. A.G. asserted that no right has accrued to the petitioners on the basis of appointment orders at Annexure-1 (series) of the writ petition in view of the fact that the said appointments are illegal and against non existent vacancies. The learned Addl. A.G. has placed reliance on the following judgments:-

(3.) In the case Sudhendu Mohan Talukdar & Ors. Vs. State of Assam & Ors., 2006 2 GauLT 216 this Court considered the claim of salaries made by adhoc teachers who were appointed against non sanctioned post. They were not appointed following the rules. While discussing a large number of cases filed by the adhoc teachers, this Court considered the claims of such teachers who though really rendered service but were not appointed by following the procedures prescribed by rules and in some cases appointment were made without there being any sanctioned post. This Court held in paragraph 16 of the said judgment that a person appointed in an unauthorized manner against non-existent vacancies cannot claim that they are entitled to get salary on the basis of such appointment. It is also held in the said paragraph that such recruitments are null and void and would not give rise to any right to such recruitees to claim salary on the basis of such recruitment. This Court held that to be a valid recruitment, it must be made against sanctioned vacancies which are basically backed up by financial budget support of the State Government. Paragraph 16 of the judgment is quoted below:-