WP(C) No. 226(K) of 2015 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, 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 WP(C) No. 226(K)/2015 Page 1 of 11 WP(C) No. 226(K) of 2015 -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 India, 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. WP(C) No. 226(K)/2015 Page 2 of 11 WP(C) No. 226(K) of 2015 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: WP(C) No. 226(K)/2015 Page 3 of 11 WP(C) No. 226(K) of 2015 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 WP(C) No. 226(K)/2015 Page 4 of 11 WP(C) No. 226(K) of 2015 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 WP(C) No. 226(K)/2015 Page 5 of 11 WP(C) No. 226(K) of 2015 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.