ACAUT and PSAN clarify

ACAUT and PSAN clarify

Dimapur, August 6: Reacting to reports that HC has dismissed ACAUT & PASN backdoor writ petition, both the organizations today clarified that the case was not dismissed but disposed off by the court with binding observation.
In the writ petition, ACAUT and PSAN challenged O.M. dated 4.8.08 and O.M. dated 11.8.16 (that provided for regularization of contract appointments after 3 years of continuous service) in addition to the 51 persons who were appointed after the state government issued O.M. dated 6.6.16 that put a ban on contract appointments.
The Court while disposing off the writ petition by judgement and order dated 26.7.2018 in W.P.(C) NO. 145 (K)/2017 (ACAUT & 7 Ors -Vrs- State of Nagaland &137 Ors) observed that the state respondents should, after applying para 53 of Umadevi(3), take steps for filing up regular vacant posts, which are manned by contract/adhoc employees, as per the recruitment Rules enforced.(Para 26)
The state government’s plan to regularize employees who have completed 3 years on contract/adhoc as per the O.M. dated 11.8.16 and O.M. dated 4.8.08 is violation of the law in Uma Devi’s case (Para 21)
The Court observed that the state government should not regularize any person having completed 3 years in contract/adhoc basis in terms of O.M. dated 11.8.2016 and O.M. dated 4.8.2008. (Para.29)
If any of the private respondents is being appointed on contractual/temporary basis in violation of O.M. 6.6.16, the same would have to be deemed to be null and void. (Para17), it stated.
The Court stated that as one time measure, the state government can only regularize the services of those irregularly appointed on contract/adhoc who had served more than 10 years as on 10.4.06, the date Uma Devi judgement was passed. Thus, the O.M. dated 11.8.16 and O.M. dated 4 .8.16 negate the laws laid down in Uma Devi and M.L. Kesari, and can not apply to the state government. If the state government acts in violation of the law laid down by the Apex court, the same would be illegal and can be challenged and regularization would be null and void. (Para 24)
Stating that it is a settled law that no person can be appointed even on temporary or adhoc basis without inviting applications from all eligible candidates, the Court stated that any contractual/temporary or adhoc appointment made without prior advertisement in the media including news papers is violation of Article 14 and 16 and liable to be quashed and set-aside and the posts be filled up as per law.(Para28)
ACAUT and PSAN make it clear that the judgement and order at para 17-29, having been sealed with Apex court decisions, it cannot be impeached.
As a precaution, to avail the benefit of regularization at para 53 of Uma Devi’s case, a person must have been irregularly appointed(not illegal) and had served on contract/adhoc for more than 10 years as on 10.4.06, which would mean, a person must have been appointed before 9.4.1996. To this effect, none of the 706 +58 would come under the benefit as they were all appointed (2006-2016) after Umadevi’s judgement, it stated
On maintainability issue, ACAUT and PSAN decided not to challenge the appointments of 655 appointed before O.M. 6.6.16. The prayer was only for a direction to the 22 HoDs impleaded, to take step for requisitioning the contract posts to NPSC within a time-bound period, they said.
ACAUT and PSAN intended in good faith that their appointments would not be quashed so as to enable them to continue in service till regular recruitment is made through NPSC, and they also be allowed to participate in the recruitment process with relaxation of age, if any.
They said the respondents raised objection for non impleadment of 655 individuals and sought for dismissal of the writ petition.
To this effect, liberty to the petitioners has been granted to agitate afresh by adding necessary parties.
The ACAUT & PSAN urged the urge the state government to immediately restructure the deplorable system in matters of appointments.
“Be it in administrative exigency where contract/adhoc/retainership/temporary/casual appointments are to be made, it is mandatory that advertisements have to be issued, and all the posts being held on contract must be advertised to let all qualified Nagas participate in the recruitment process as per constitutional schemes and statutory rules,” a release issued by its media cell stated. (Page News Service)