HC Kohima Bench set aside appointment without open advertisement in AH&VS Dept

Morung Express News
Dimapur | May 2

In a significant judgment, the Gauhati High Court Kohima Bench, on April 28, has set aside appointment of a ‘Bull Attendant’ under the establishment of the Chief Veterinary Officer (CVO), Zunheboto, the Department of Animal Husbandry and Veterinary Services (AH&VS) without floating any open advertisement as required under the relevant guidelines of the State Government.

In his order, Justice Nelson Sailo directed the respondent authorities to initiate the process of filling up the post in question by strictly following the Office Memorandum (OM) issued by the Personnel and Administrative Reforms Department (Administrative Reforms Branch) on June 4, 2016 dealing with recruitment of Grade-III & IV posts in the District Offices, apart from any other relevant guidelines that may be relevant under the establishment of the CVO, Zunheboto.

Disposing off a writ petition on the matter, the Court also directed the State respondents to start and complete the said process within the outer limit of 2 months from the date of receipt of a copy of the court’s order by the respondent authorities. The State respondents were State of Nagaland, represented by the Chief Secretary; Secretary, AH&VS; Director, AH&VS; and CVO Zunheboto.

Background of the case
The case pertains to a writ petition challenging the administrative approval dated February 5, 2019 issued by the Joint Secretary, AH&VS for the appointment of ‘Bull Attendant’ under the CVO Zunheboto and the subsequent appointment on February 19, 2019.

The counsel for the petitioner submitted that the appointment has been made without floating any open advertisement as required under the relevant guidelines of the State Government.

While challenging the same, the counsel pointed out that the June 4, 2016 OM, among others, stipulated all vacancies excepting Grade-III posts in the district are to be filled up by the Head Department through open advertisement and via District Selection Committee constituted by the respective Deputy Commissioners.

As the process was not followed, the counsel argued that the appointment cannot be sustained.

While the Court had been approached earlier regarding the same issue, the counsel contended that the petitioner cannot not barred from approaching again as the issue of open advertisement was not raised and decided in the previous petition.

It only dealt with claim for appointment by the petitioner being a ‘land donor,’ the counsel added.

Res adjudicate?
The State counsel, meanwhile, argued the petition res adjudicate or a case already decided or settled by court and hence, not maintainable.

He submitted that the prayers made in the earlier round of litigation and in the present writ petition are ‘one and the same,’ and called for dismissal of the petition by the principles of res adjudicata.

The counsel for the private respondent (the Bull Attendant appointed on February 13, 2019) also contended that the petition was clearly barred by res adjudicate.

After hearing the submissions, Justice Sailo said that the issues to be considered are whether the matter of advertisement is barred by the principles of res adjudicata and whether the appointment is sustainable in view of the June 4, 2016 OM.

While similar prayer were made in both the writ petitions, the issue regarding non-advertisement was not raised or decided in the earlier writ petition, the judge noted, adding that it solely considered petitioner’s claim for appointment as a ‘land donor.’

Although the petitioner has not clearly specified in his writ petition as to what guidelines would apply for undertaking such process, the same has been answered by the State respondents in their affidavit-in-opposition where the June 4 OM was annexed, he added.

Based on the OM, the judge noted that all vacancies in the Grade-IV posts occurring in the districts except for Grade-III posts, has to be filled up by the Heads of Department through open advertisement. In addition, the OM stipulated that the District Selection Committee has to be constituted by the Deputy Commissioner concerned, who shall be the chairperson of such committee. The committee should include District Level Officers, an Administrative Officer and the Principal or Senior Lecturer of the Local College as nominated by the DC.

While such is the procedure laid down, the State respondents in their affidavit-in-opposition have only stated that the Grade-IV post has to be filled up by the indigenous inhabitant of the district and there was no restriction to appoint private respondent as he was an indigenous inhabitant of Zunheboto district.

This reasoning in my considered view cannot be accepted in view of the fact that the petitioner admittedly is also an indigenous inhabitant of Zunheboto district, Justice Sailo observed.

It is no longer res integra (a case not been examined or passed upon) that in matters of public employment, all persons who are eligible are to be given a chance to participate in the process of selection, he said.

The June 6, 2016 OM clearly stipulated that an open advertisement should be made for vacancies in the Grade-IV post and that a selection process has to be initiated under the chairmanship of the Deputy Commissioner concerned and the same admittedly has not been done, he pointed out.

As the issue of non-publication of advertisement has not been decided in the earlier round of litigation, the present writ petition, also cannot be barred by the principles of res adjudicate, Justice Sailo added.

Accordingly, finding merit in the petition, he stated: “The petitioner may not have the right to be appointed against the said post, but he definitely has a right to be considered for being appointed to the post along with all other eligible candidates in terms of the relevant guidelines.”

Source: https://morungexpress.com/hc-kohima-bench-set-aside-appointment-without-open-advertisement-in-ahvs-dept