Binod Chandra Neog vs State of Nagaland and Others

W.A. Shishak, J.—In this petition under Article 226 of the Constitution the Petitioner challenges order dated 25th April, 1990 at Annexure-6 by which Respondent No. 4 (Shri Rabindra Roy) was appointed on ad-hoc basis as Assistant Teacher in place of the Petitioner on the ground that the Petitioner was disqualified.

This petition was filed in the principal seat at Guwahati and Rule was issued on 26.6.90. Notice was received on behalf of Respondent No. 4 by his father on 28.8.90 as per service report in this regard. No counter affidavit has been filed on behalf of the Respondents. On several occasions Government was allowed time to file counter. As an affidavit was filed, learned Senior Govt. Advocate was directed to make relevant records available at the time of hearing by this Court''s order dated 23.2.93. On 17.5.93 also it was seated by learned Senior Govt. Advocate that relevant records had not been sent to him inspite of his efforts in this regard.

I have heard Mr. R.S. Bedi learned Counsel for the Petitioner. I have heard also Mr. E.Y. Renthungo learned Junior Govt. Advocate.

At the outset learned junior Govt. Advocate states that inspite of his best efforts till today relevant records pertaining to interview of the Petitioner and others have not been received from the Directorate of School Education. He produces copies of letters sent to the Department concerned in this regard. He has also shown me a letter written to the Senior Govt. Advocate by Co-ordinator from the Directorate of School Education dated 19 May, 1993. The relevant portion of the letter is as follows:

It is regretted to inform you that the papers in connection with the interview conducted could not be traced out inspite of repeated search.

In this view of the matter learned Junior Govt. Advocate has made his submission on the basis of materials available on record.

The Petitioner obtained Degree in Arts in 1977 from Dibrugarh University. As it was difficult to gel employment in Assam, the Petitioner looked for a teaching job in Nagaland. By Order dated 19.5.82 the Petitioner was appointed on ad-hoc basis to the post of Graduate Teacher in the Government Middle School, Longching under the establishment of Deputy Inspector of Schools, Mon. The said appointment was against a vacancy caused as the then incumbent left the School with effect from April, 1981. By another order dated 3rd February, 1983, the Petitioner�s appointment was extended up to 2.2.85 and also transferred him by this order to Chuhachingnyu Middle School. Also by another order dated 20th March, 1985, the Petitioner�s service was extended up to 31.3.86. By order dated 11 June, 1986 the service of the Petitioner was further extended from 3.4.86 to 31.12.86. It is stated that by yet another order dated 3rd April, 1989, the service of the Petitioner was extended for another four (4) months with effect from 1.3.89 The last extension order in respect of the Petitioner and nineteen (19) others was issued by the Director of School Education on 15 February, 1990 extending the service of the Petitioner up to 31.3.90 vide Annexure-5 of the writ petition.

As staled above the order impugned in this petition is dated 25th April, 1990 issued by the Deputy Director, Directorate of School Education by which Respondent No. 4 was appointed on ad-hoc basis for a period of four (4) months in place of the Petitioner on the ground that the Petitioner was disqualified.

It is contended on behalf of the Petitioner that in the year 1985 the Petitioner and several others were interviewed by District Selection Committee at Mon for the purpose of regularization. The result was, however, never published. However, the Petitioner came to know from some of the members of the District Selection Committee that a selection list had duly been forwarded to the authority concerned at Kohima and the Petitioner�s case was already recommended for regularization. In the said Interview held in 1985 at Mon, written test as well as oral test was taken The Petitioner was expecting that regularisation order would soon be issue but this never happened. It is further stated that strangely another interview was called for the second time at Kohima but subsequently it came to light that Interview was held at Dimapur High School. It is stated that there was no written test in the said second interview. As stated above inspite of direction by this Court to produce all the relevant records, the department has written that no such record is traceable.

Learned Junior Govt. Advocate submits that there is no proof that the Petitioner was selected by the Selection Committee in 1985. He further submits that there is also no evidence to show that second interview was also held in Dimapur Government High School as contended on behalf of the Petitioner. It appears to me that if records were made available, the controversy could have been sorted out without any difficulty. It is extremely unfortunate that inspite of such serious allegations made in the petition, the department concerned is unable to produce any document to rebutt such allegations.

On careful perusal of the petition, the initial appointment order of 1982 and all other subsequent orders of extension, I am of the view that since the Petitioner had put in ten (10) years service, it appears to me that he already stood entitled to have his service regularised as Teacher, notwithstanding whether any interview was held at all or not. It is stated that by now the Petitioner is forty (40) years old. At the same time although the nature of employment was on ad-hoc basis, since the service of the Petitioner was continued for long ten (10) years, it must be presumed that the service of the Petitioner was required. After having served ten (10) years it would be extremely harsh and unreasonable to throw the Petitioner out of employment.

I must point out a curious thing in the present case. The impugned order dated 25.4.90 was issued appointing Respondent No. 4 on ad-hoc basis in place of the Petitioner who was said to be disqualified. The Petitioner contends that he has not been informed as to how he was disqualified. Be that as it may, it appears to me that it is simply impermissible to replace the service of the Petitioner by another ad-hoc appointment. The matter would have been different if the replacement was by a regular appointment on regular basis Even assuming that the Petitioner had been found unfit by a duly constituted selection committee, the service of the Petitioner could have beer, replaced only on a regular basis and not on ad-hoc basis. As such the impugned order of appointment of Respondent No. 4 in place of the Petitioner appears to me to be highly arbitrary and unreasonable. Further, as stated above since the Petitioner has been employed for long ten (10) years, although on ad-hoc basis, when the impugned order was issued on 25.4.90 the Petitioner was already entitled to have his service regularised. It is stated at the Bar that by virtue of an order of a Division Bench of this Court dated 26.6.90 by which the impugned order dated 25th April. 1090 was suspended, the Petitioner is continuing in service as a teacher at Chenmaho under the same D.I. of Schools.

11, In the light of the facts narrated above, the petition is allowed. The impugned order dated 25th April, 1990 by which Respondent No. 4 was appointment is quashed and set aside.

The service of the Petitioner shall stand regularised and he shall continue in service. However, I make no order as to cost.

The petition is accordingly disposed of.