THEPFUDIHOULIE SHUYA Vs. ATOUZO PIENYU

JUDGEMENT

(1.) A writ petition being WP(C) 255(K) of 2011 was filed by 29 persons who are Veterinary Science Graduates without employment. Grievance raised was in respect of the inequitable mode of appointment of Veterinary Assistant Surgeons (VAS) in the State of Nagaland dehors the provisions under the Nagaland Animal Husbandry and Veterinary Service Rules, 1979 (in short 'the Rules'). It was highlighted that appointments continued to be made on contract basis arbitrarily and without asking the Nagaland Public Service Commission for issuing advertisement and for holding selection. Such employees were subsequently regularized on the basis of Office Memorandum dated 04.08.2008. The appellants herein were party respondents in the writ petition who had been appointed as VAS on contract basis and subsequently regularized against permanent vacancies. The said writ petition was answered in favour of the respondents herein/ writ petitioners vide judgment and order dated 14.11.2014 by making reference to a catena of Apex Court decisions relating to the concept of regularisation of service; the validity of the practice of executive action under Article 162 of the Constitution for regularizing service dehors the procedure prescribed under the rules and the principles governing public appointment. On consideration thereof, the learned Single Judge held that when there is a set of statutory rules governing recruitment to public posts and offices, the same are to be followed scrupulously by the State authority. It was held that making departure from the procedure prescribed under the Rules without advertisement and without inviting applications from open market tantamounts to violation of Article 14 and 16 of the Constitution. It was held that it would not be a valid mode of appointment if a person had been regularized in service otherwise not appointed as per rules. It would be a backdoor entry and same cannot confer any right to regularisation in service. Also, it would be unconstitutional to circumvent the procedure prescribed under a statutory rule and take recourse to a scheme framed under Article 162 of the Constitution. Regularisation cannot take place on the strength of a Cabinet decision adopted in exercise of power under Article 162 of the Constitution. The learned Single Judge noticed para 53 in Secretary, State of Karnataka Vs. Umadevi(3), reported in (2006) 4 SCC 1 and held that the one-time exercise indicated therein for regularizing the services of irregularly appointed persons would not be applicable and come to the aid of the appellants herein, who were arrayed as private respondent nos. 5 and 7 to 16 in the writ petition. The writ petition was partly allowed by setting aside the regularization orders of the appellants. It was observed that the State respondents are duty bound to comply with the procedure prescribed under the rules for the purpose of filling up the vacancies held by the appellants herein along with other such vacancies. It was further observed, by making reference to para 55 of Umadevi(3) (supra), that the appellants be allowed to participate in the selection process to be undertaken for filling up the permanent vacancies of VAS by waiving age restriction, having regard to their long years of service.

(2.) Assailing the said judgment and order dated 14.11.2014, Mr. S. Dutta, learned senior counsel representing the appellants places strong reliance in the Office Memorandum dated 04.08.2008 of the Department of Personnel and Administrative Reforms, Government of Nagaland, as being a valid source of power validating the regularisation of service of the appellants. He, however, candidly and fairly expresses reservation on the said Memorandum in the teeth of the principles on regularisation laid down in Umadevi(3) (supra). Mr. Dutta, however, submits that the appellants have put in long years of service and this fact cannot be ignored from due consideration. For doing complete justice, it is contended, this Court must mould the relief in a manner where their appointments/regularisation in service is saved without creating any precedent in this regard. Reliance is placed in M.A. Murthy Vs. State of Karnataka reported in (2003) 7 SCC 517.

(3.) Mr. D. K. Mishra, learned senior counsel for the private respondents / writ petitioners submit that the policy decision contained in the Office Memorandum dated 04.08.2008 impinges upon the law of the land, post Umadevi(3) (supra) era. According to him, an executive order which is contrary to the principles laid down in Umadevi(3) (supra) is ex-facie void and no regular--isation could have been effected in favour of the appellants on the basis of the said Office Memorandum, more so, when it had been issued after 10.04.2006 i.e. the date when judgment in Umadevi (3) (supra) was rendered. Mr. Mishra submits that each of the appellants rendered less than 10 (ten) years of service, having regard to their initial dates of appointment on contract basis and their dates of regularisation in service. The relevant dates furnished by Mr. Mishra on the basis of the materials on record are: