ATOUZO PIENYU Vs. THE STATE OF NAGALAND

JUDGEMENT

(1.) As many as 29 (twenty nine) unemployed Veterinary Science Graduates of the State of Nagaland formed an association under the name and style of 'Unemployed Veterinary Graduates Association' to ventilate their grievance for inequitable mode of appointment of Veterinary Assistant Surgeons in the State giving complete go by to the provisions of Nagaland Animal Husbandry & Veterinary Service Rules, 1979 (hereinafter referred to as 'the Rules'). According to the writ petitioners, the permanent vacancies of Veterinary Assistant Surgeon (for short, VAS) can be filled up only by way of direct recruitment under Rule 6 and 7 of the Rules in view of item 1 in schedule-II to the Rules for appointment of VAS which is Class-II Gazetted Officers of Junior Grade under the Veterinary Service of the State. The State respondents went on appointing persons on contract basis on pick and choose policy without asking the Nagaland Public Service Commission (for short, NPSC) to issue advertisement and hold selection. These employees initially appointed on contract basis were subsequently regularized in service on the basis of Office Memorandum issued on 04.08.2008 vide No. AR-5/Asso/98. Resultantly, eligible candidates were denied right of equal opportunity for being considered for appointment to the State Service and in the process Article 16 of the Constitution has been grossly infringed. The writ petitioners, therefore, have approached this Court by filing this writ petition praying for appropriate direction to quash and set aside the aforesaid O.M. dated 04.08.2008 as well as notifications dated 20.11.2007 (Annexure-3), 16.03.2009 (Annexure-9), 18.06.2011 (Annexure-20) and 13.09.2011 (Annexure- 51) whereby the services of the respondents No. 4 to 16 were regularized. They have also prayed to issue consequent direction to the respondents to comply with the Rules for filling up the vacant posts of VAS by way of prescribed procedure.

(2.) Private respondent No. 4 was initially appointed on contract basis w.e.f. 10.03.1997 to 14.11.2007 by granting successive extension from time to time and subsequently by notification dated 20.11.2007 (Annexure-3) his service was regularized as VAS (Class-I Gazetted) under the establishment of Animal Husbandry and Veterinary Department of the State. Respondent No. 5 was appointed as Lecturer in VFATI, Medziphema on contract basis initially for a period of 1 (one) year against leave vacancy of one Dr. M. Catherine and this was extended successively till his service was regularized by notification dated 16.03.2009 w.e.f. his initial appointment on contract basis. The initial appointment of respondent No. 5 on 12.08.2003 was against a leave vacancy. In the subsequent extension orders issued from time to time till 24.08.2006, it was mentioned that the same appointment would remain in force till Dr. M. Catherine, the substantive incumbent of the post, returns from deputation. However, in extension order dated 19.08.2008 this rider did not find place and rather it was mentioned that the extension would be valid till 11.08.2009 or till recruitment is done, whichever is earlier. Before the expiry of this extension his services were regularized on 16.03.2009 (Annexure-9) by taking recourse to the provisions of O.M. dated 04.08.2008 referred to above.

(3.) Respondent No. 6 was initially appointed to the post of VAS on another leave vacancy in the year 1997 and subsequently by order dated 29.09.2006 his contract service was extended against a permanent vacancy. Respondents No. 8 and 9 were similarly appointed against leave vacancies but were subsequently regularized against regular vacancies. Respondent No. 10 was initially appointed on 12.06.2006 against leave vacancy and was subsequently appointed against existing vacancy on 09.07.2007 due to promotion of the regular incumbent of the post. By Cabinet approval accorded on 31.05.2011, regularization of services of aforesaid respondents No. 6 to 10 was made and consequently notification was issued on 18.06.2011 (Annexure-20) for regularizing their services. In the same process, respondents No. 11 to 16 were appointed on contract basis in the year 2007 and thereafter by notification dated 13.09.2011 (Annexure-51) their services were regularized on the strength of O.M. dated 04.08.2008. Thus, all the private respondents No. 4 to 8 were initially appointed on contract basis for fixed period of time which were extended from time to time and ultimately by taking recourse to O.M. dated 04.08.2008 their services were regularized without going for the procedure prescribed under Rule 7 of the statutory rules framed under proviso to Article 309 of the Constitution of India. These regularization orders have been challenged by the present petitioners on the ground that there being a statutory recruitment rule in existence, the Executive acted illegally, unconstitutionally and arbitrarily in invoking power under Article 162 of the Constitution to make appointment to permanent vacancies. The petitioners, therefore, have prayed for setting aside of these regularization orders and also for consequent direction to the authorities for filling up of these posts by following the procedure of the statutory rules holding the field.