WP(C) No. 226(K) of 2015

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

W. P.(C) No. 226(K) of 2015

Smti. Rongsenlemla Ao, Medical Attendant, Longchem PHC, Establishment of CMO, Mokokchung, Nagaland...... Petitioner

-VERSUS-

1. The State of Nagaland represented by the Chief Secretary to the Government of Nagaland Kohima.

2. The Commissioner & Secretary Health & Family Welfare, Nagaland,Kohima.

3. The Principle Director, Health and Family Welfare, Nagaland, Kohima.

4. The Chief Medical Officer (CMO), Mokokchung, Nagaland.

5. The Inspector General of Police & Director, Vigilance & Anti Corruption Police, Nagaland, Kohima.

...... Respondents

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-BEFORE- HON’BLE MR.JUSTICE S.SERTO

For the Petitioners : Mr. Tongpok Pongner, Mr. Tongpang Jamir, Ms. Akum Longchari, Mr. E. Thiba Phom, Mr. S. Reopi Sangtam, Ms. Alika Sumi, Ms. Purnima Paul, Adv.

For the State Respondents : Ms. Vilika Chishi, Govt. Adv.

For the Respondent No. 5 Mr. N. Mozhui, Adv.

Date of hearing : 05.05.2017

Date of judgment : 30.05.2017

JUDGMENT & ORDER (CAV)

1. This a writ petition filed under Article 226 of the Constitution of , praying for quashing and setting-aside the impugned letter No. DHFW-3/117/Gd- IV/General/2010(pt), dated 30.04.2012, and letter No. CMO-2/20/III&IV Gd/pt- II/2009-10/245, dated 18.05.2012, and the order No. DHFW-3/117/Gd- IV/General/2010(Pt)/938-44, dated 29.04.2015, and for directing the state respondents to reinstate the petitioner to her service and to release the pay and allowances for the period she was ousted.

2. Heard Mr. Tongpok Pongner, the learned counsel for the petitioner and also heard Ms. Vilika Chishi, Government Advocate, on behalf of the state respondents and Mr. N. Mozhui, the learned counsel for the respondent No. 5.

3. Facts and circumstances of the case briefly stated are as follows:-

In return for the land donated by her father-in-law on which the Primary Health Centre at Longchem was constructed and established, the petitioner was appointed as Medical Attended vide Order No. CMO-1/13/IV/2005-06/2247-52, dated 21.12.2006, issued by the Chief Medical Officer, Mokokchung, against the vacancy which occurred on the death of one late Lamwati, who died on 29.11.2006.

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While continuing to serve in that post, the Principal Director H&FW, Nagaland, by the impugned letter No. DHFW-3/117/Gd-IV/General/2010(pt), dated 30.4.2012, directed all the CMOs of the districts to hold-up the salaries of 159 staffs serving in the District Medical Centre for the reason that Vigilance and Anti-Corruption Commissioner is conducting investigation to ascertain or verify, if any of those staffs have been appointed without sanction posts. In that name of 33 staffs, including the name of the petitioner, were mentioned for verification and investigation. Following the circulation of the Principal Director’s letter mentioned above, the petitioner was informed through the impugned letter No. CMO-2/20/III&IV Gd/pt- II/2009-10/245, dated 18.05.2012, of the office of the CMO that her pay and salary was being held-up from 01.5.2012 till the completion of the investigation by the Vigilance Commissioner as she was appointed without sanctioned post by the then CMO. On 06.06.2012, the petitioner as directed by the CMO, Mokokchung appeared before the Vigilance PS, Kohima along with all her documents relating to her appointment. In that she was directed to furnish information as to whether her predecessor’s family was drawing family pension or not. Based on her information the Vigilance and Anti-Corruption Commissioner, conducted enquiry and found that her predecessor’s family were enjoying pension.

Thereafter, the Commissioner reported to the authority concerned that the petitioner was appointed against clear regular vacancy. The relevant portion of the same is reproduced here below:-

“VIGILANCE COMMISSION DIRECTORATE OF VIGILANCE & ANTI CORRUPTION NAGALND ; KOHIMA. &*&*& NO.R.C-6/2011/646. ::: Dated Kohima, the 12th Dec./2012

To, The Commissioner & Secretary to the Govt. of Nagaland, Health & Family welfare Deptt. Kohima.

Sub :- FORWADING OF ENQUIRY REPORT AND EXAMINATION THEREOF:

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Sir, 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: ...... 2. Chief Medical Officer, Mokokchung:- Land owners, death case and Disability

Sl.No. NAME APPOINTED AGAINST APPOINTED BY SMTI. Rongsenlemla Ao Land owner and against the Dr. N. Mhabemo M/A Longchem PHC death of Mr. Lanuwati M/A Kithan CMO who was serving as a regular employee. Unfortunately, the CMO has disposed off the case from his level without forwarding the application to the Directorate/Govt. This is against clear regular vacancy.

4. Once again, the Vigilance Commission by an Office Memorandum No.DHFW- 3/117/Gd-IV/General/2010(pt)/924-28, dated 05.05.2014, directed all the CMOs/MS of the districts to verify and authenticate the land ownership claims of all those persons whose appointments were under investigation and to submit reports with documentary support within 15 days. Pursuant thereto the petitioner was directed by the CMO of the district to submit recommendation from the town Committee of Longchem and the Village Council countersigned by three land owners. The petitioner was directed submitted the required certificate dated 16.05.2015, issued by the Town Committee, Longchem and the recommendation dated 17.05.2014, issued by the Village Council of Aonokpu. On receipt of such documents the CMO, Mokokchung, conducted verification and submitted his report dated 31.12.2014, to the Vigilance Commission stating that the petitioner is the wife of the son of the land owner on which PHC at Longchem was established. The Vigilance Commission, after receiving all the reports from the CMOs, submitted its final report No.RC- 6/2011/1761, dated 04.12.2014, to the Commissioner & Secretary, Health & Family

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Welfare, Govt. of Nagaland. In that report the name of the petitioner was included amongst the persons who were appointed without sanctioned posts, which is contrary to the earlier finding made by the commission itself. On receipt of the Report, the Respondent No. 3, i.e. the Principal Director Health & Family Welfare, Govt. of Nagaland, issued show-cause notice No. DHFW- 3/117/Gd-IV/General/2010(pt)/12784-80, dated 12.03.2015, directing the petitioner and other similarly situated person to submit documentary proof of their land ownership within 15 days, at the same time all the concerned CMOs of the districts were also once again asked to verify and authenticate the Land Ownership Certificates of the employees under enquiry. Accordingly, the CMO, Mokokchung, vide his Notification No. CMO/2/8/Apptt/III & IV Gd/2014-15/3163, dated 17.03.2015, directed the petitioner to submit her Land Ownership Certificate signed by 3 persons of her clan and countersigned by the village Council of her village and to submit the same within 10 days. The petitioner as directed submitted the Certificates.

5. After receiving all the documents the principal Director, Health & Family Welfare, Government of Nagaland, issued the impugned order No. DHFW- 3/117/Gd-IV/General/2010(Pt)/938-44 dated 29.04.2015, whereby, 33 employees including the petitioner, whose appoints were investigated were dismissed w.e.f. 30.04.2012, on the found that their appointments were made without having sanctioned post. The contents of the impugned order are reproduced here below:

“GOVERNMENT OF NAGALAND DIRECTORATE OF HEALTH & FAMILY WELFARE NAGALAND : KOHIMA

NO.DHFW-3/117/GD-IV/General/2010(Pt)/ /Dated, Kohima, the29 th April 2015

O R D E R In pursuance of Government of Nagaland Department of Health & Family Welfare, Nagaland, Kohima letter no.MED-5/AE/14/2005/337 Dated Kohima 12th April 2015, in consonance with the directive given by the Screening Committee headed by the Chief Secretary, Nagaland on 17th July 2013 and in view of the Final Report submitted by the Vigilance and Anti-Corruption Police Department Letter

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No.RC-6/2011/761 dated 04.12.2014, the under mentioned personnel against various Health units in Nagaland whose Regular Appointments were made on landowner basis without any sanctioned posts are hereby dismissed and declared null and void w.e.f. 30th April 2012.

Sl.NO. NAME DESIGNATION HEALTH UNIT DISTRICT 1 T. Wobemo Yanthan M.A Sunglup S/C Wokha 2 Zuchanbeni Ezung Peon T.B Centre Wokha 3 Nyimtseno Odyuo M.A Englan PHC Wokha 4 Loyibeni Ngullie Ayah Lakhuti PHC Wokha 5 N. Renben Tsopoe M.A Morakjo PHC Wokha 6 Bejano Jami M.A Morakjo PHC Wokha 7 B. Lechanbeni Odyuo M.A Englan PHC Wokha 8 Zuchamo Shetire Peon Chutikong PHC Wokha 9 Janthongo Lotha FA Chutikong PHC Wokha 10 Hannah Patton Ayah Englan PHC Wokha 11 Rongsenlemla Ao M.A Longchem PHC Mokokchung 12 Limaienla Ao Mali Tsurangkong Mokokchung PHC 13 Chamikumba M.A Longnak S/C Mokokchung 14 Salangtuba M.A Molungyimsen Mokokchung S/C 15 Lipokkumzuk Ao M.A Tuli PHC Mokokchung 16 Sakulila M.A Salulemang S/C Mokokchung 17 Imtitongzuk Chowkidar Meyilong S/C Mokokchung 18 Lipong Chowkidar Debuia S/C Mokokchung 19 Imliyanger M.A Mangmetong S/C Mokokchung 20 Tiatula Sweeper Tsuramgkong Mokokchung PHC 21 Bendangsenla Ao Ayah Changtongya Mokokchung CHC 22 Aochalu Ao M.A Big Dispensary Mokokchung Longkum 23 T. Kiretongshe M.A Amahator S/C Kiphire Sangtam 24 Aliba Sangtam M.A Kichang S/C Kiphire 25 R. Selithong Sangtam M.A CMO Office Kiphire 26 K. Ghukali Swu Mali Satakha PHC Zunheboto 27 Khetoni Yah Shoipu S/C Zunheboto 28 Hiketoli H. Yepthomi Sweeper Yemishe S/C Zunheboto 29 T. helito Jimo M.A Sukhai S/C Zunheboto 30 ......

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31 Smti. Visheli Sema M/A Subordinate ... Establishment CMO Office 32 Mr. Atoshe Sumi Dresser Satoi PHC Zunheboto 33 Smti. Kalika Sumi Ayah Yezami S/C Zunheboto

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

Sd/- (DR. NEIKIETUO CHIESOTSU) Principal Director, Directorate of Health & Family Welfare, Nagaland: Kohima”.

Aggrieved the petitioner has come to his court praying as stated above.

6. The case of the petitioner as submitted by her learned counsel is as follows: That the purported reason for her suspension and dismissal from her service as clearly mentioned in the impugned order was that she was appointed without any sanctioned post. But, it has been proven by the appointment order itself and also the findings of the Vigilance Commission, that she was appointed against the post that fell vacant due to the demise of the previous occupant of the post, therefore, the impugned dismissal order deserves to be quashed and set-aside.

Further, the learned counsel submitted that since the purpose and the reason of the petitioner’s suspension and dismissal from her service was stated to be for having been appointed against a non-sanctioned post, the respondents cannot now change or improve their case by stating in their affidavit that she was removed because her appointment was issued by the CMO without the approval of the government. On this point the learned counsel cited the judgment of the Hon’ble Supreme Court passed in the case of Dipak Babaria -Versus- State of Gujarat, reported in (2014) 3 SCC 503, particularly para-64 and 65 of the same. The same is reproduced here below:-

“64. That apart, it has to be examined whether the Government had given sufficient reasons for the order it passed, at the time of passing such order. The Government must defend its action on the basis of the order that it has passed, and

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it cannot improve its stand by filing subsequent affidavits as laid down by this Court long back is Commr. Of Police v. Gordhandas Bhanji28 in the following words: (AIR p.18,para 9)

”9...public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”

This proposition has been quoted with approval in para-8 by a Constitution Bench in Mohinder Singh Gill v. Chief Election Commr.29 wherein Krishna Iyer, J. has stated as follows: (SCC p.417)

“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be Judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out”.

65. In this context it must be noted that the Revenue Minister’s direction merely states that it is a private land, and the Government’s Letter dated 18-12- 2009 speaks of the financial incapability of Indigold. Neither the Letter dated 18-12- 2009 from the Government to the Collector, nor the order passed by the Deputy Collector on 15-1-2010 mention anything about:

1. The mineral policy of the Government of Gujarat.

2. The time-taking nature of the process of acquiring the land and re-allotting it.

3. That the second sale was under the authority of the Collector available to him under the first proviso to Section 89(1) read with Condition (4) of the permission dated 1-5-2003 granted to Indigold to purchase the lands concerned.

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In the absence of any of these factors being mentioned in the previous orders, it is clear that they are being pressed into service as an afterthought. The Government can not be allowed to improve its stand in such a manner with the aid of affidavits.”

7. The learned counsel also submitted that the claim of the respondents that the petitioner was appointed by the CMO not empowered to issue such appointment order and without approval of the government, is not based on facts but only a ploy to deviate the course of justice. To substantiate this the learned counsel referred to a document issued by Secretary, Medical and Public Health of Nagaland, in which amendment of the Delegation of Financial Cognate Power Rules, 1964 is shown to have been made to the effect that district level officers of various departments were given the power to issue appointment order of Class-IV Staffs. The learned counsel also referred to appointment orders of 43 Grade-IV employees, out of which at least seven appointment orders of Grade-IV employees were issued by the CMO, . After referring to such appointment orders the learned counsel submitted that the petitioner cannot be singled out and treated differently from others who are similarly situated.

8. Ms. V. Chishi, learned Government Advocate, submitted on behalf of the state respondents No.1 to 4, that CMO has no power to issue such appointment orders and, moreover, the appointment of the petitioner was issued without obtaining the approval of the Government, therefore, the same was null and void.

9. Mr. N. Mozhui, learned counsel who appeared on behalf of respondent No.5, submitted that CMO and Civil Surgeon are two different posts and while Civil Surgeon was given the power of issuing appointment order of Grade-IV employees, CMO was not given such power, therefore, the appointment of the petitioner was not a valid appointment. The learned counsel further submitted that the CMO should have forwarded the case of the petitioner to the Directorate who would have done the needful for issuance of a valid appointment order for the petitioner. But, the CMO instead of doing that directly issued the appointment order. As such the appoint order of the petitioner was not valid in law.

10. Admittedly, the reason for suspension of the petitioner and the enquiry that followed was to find out, whether the petitioner was a genuine land owner and, as

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to whether she was appointed against a sanctioned post or not. It is also admitted by all that the petitioner was found to have been a genuine landowner and was appointed against sanctioned post. As such, there was no more reason for her dismissal and therefore, she should not have been dismissed.

Further the words of the dismissal order make it crystal clear that the same was issued on the ground that the petitioner was appointed without a sanctioned post. Therefore, to say now that she was dismissed because she was appointed by the CMO without following the due process would amount to adding or substituting a new ground of dismissal which was not there in the dismissal order. This cannot be allowed. Because, a government servant can only be dismissed after holding proper enquiry that too after giving sufficient opportunity of being heard. To dismiss a Government servant on a ground which is proved to have been non-existent or not proven, and thereafter, to tell him that he has been dismissed on a ground totally different from the one mentioned in the order itself would amount to punishing him without giving him the opportunity of being heard and also shifting of the goal while the game is on. And to allow such order and plea to subsist would be in violation of Principles of Natural Justice, rights guaranteed under Part-III and Article 311 of the Constitution of India. Therefore, the same cannot be allowed to stand.

Furthermore, there is no denying of the plea of the petitioner that CMO is the head of the Medical Department in the district and that amendment to Delegation of Financial Cognate Power Rules, 1964 was made, and by that the power to appoint Grade IV employees was conferred to district level officers. There is also no denying on the claim of the petitioner that at least 7 appointment orders of Grade-IV employees were issued by the CMO, Mokokchung at that time and that their appointments have never been questioned. All these shows that CMO was also empowered to issue appointment orders of Grade-IV employees in the district. Otherwise also to question the appointment of a Grade-IV employee after a lapse of 6 years that too issued by its own officer was a little too late in the day.

11. In view of the discussions and the conclusions drawn, the impugned order dated 29.04.2015, (at Annexure-P of the writ petition), in respect to the present

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petitioner is not sustainable in law, therefore, the same is quashed and set aside as far as the petitioner is concerned. Accordingly, the writ petition is allowed.

The respondents are directed to reinstate the petitioner to her service from the day she was dismissed and to pay all her salary and allowances for the period she was kept under suspension till the date of her reinstatement. It is also made clear that the period of her suspension should be treated as on duty. The respondents shall complete the exercise within a period of three month from the date of receipt of a copy of this judgment and order.

No order as to cost.

JUDGE

kevi

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