Morung’s Legal Digest: Appointment of assistant professors, POCSO & health issues

A weekly roundup of ‘law in action’ in HC Kohima Bench

Moa Jamir
Dimapur | June 9

A challenge to the appointment of assistant professors to various Government colleges in Nagaland, issues related to healthcare, and a POCSO bail application were among the diverse legal matters heard at Nagaland's highest court, the Gauhati High Court Kohima Bench, from June 3-7.

Appointment without Ads
On June 7, the single-judge Bench of Justice Devashis Baruah granted both the State and private respondents to a writ petition challenging the appointment of assistant professors to various colleges in Nagaland until July 3 to file affidavits.

The judge noted that the writ petition challenged the appointments of the private respondents (assistant professors) on the grounds that these appointments were made by the State Authorities without issuing any advertisements and that the assistant professors do not have the required qualifications.

Justice Baruah observed that while all the respondents had already appeared and notice had been served, none of the respondents, including the State, had filed their affidavits in the matter. Granting time until July 3 in the interest of justice, the judge scheduled the matter for further hearing on July 11.

The State of Nagaland, represented by the Chief Secretary, Commissioner & Secretary and Director, Department of Higher and Technical Education, Secretary, Nagaland Public Service Commission, and 32 assistant professors serving in various Government colleges in Nagaland, are respondents to the case. The petition was initially filed in 2022.

Court Denies bail for accused in POCSO Case
On June 6, the High Court denied bail to an accused in the Kiphire Women Police Station case involving charges under sections 376(2)(C)(L)(3) of the IPC and sections 6/10 of the Protection of Children from Sexual Offences (POCSO) Act. The accused, Ajij Pathan @ Pathan Ajij, who has been in custody since June 20, 2023, totaling around 283 days, had sought bail on the grounds of chronic liver disease and the completion of the charge sheet phase. 

The defense argued that the accused's continued detention was unnecessary, especially since the case is awaiting charge framing in the Special Court under the POCSO Act. However, the prosecution strongly opposed the bail application, revealing that the Assam Rifles had previously attempted to influence the informant and his family to withdraw the FIR. This, coupled with the family's vulnerable economic status, raised concerns about potential witness tampering if the accused were released. 

The court referenced a prior trial court order from February 15, 2024, which also highlighted the risk of witness influence by the Assam Rifles. 

After hearing both sides and considering the gravity of the offense alleged against the accused and the prima facie materials on record, and in view of the fact that the Assam Rifles authority had admittedly attempted to influence the informant to withdraw the FIR, Justice Budi Habung noted that there is every likelihood that the accused might influence the prosecution witness, including the victim, if he is released on bail. 

Accordingly, citing the prime importance of protecting the interest of the victim to ensure she can give her evidence before the Court freely and fearlessly without being influenced from any corner, the judge denied the bail. Such protection to the minor victim is necessary at least until her evidence is recorded by the trial Court, he added.

ULBs E-roll Issue
On the issue of the Final Electoral Roll published by the Nagaland State Election Commission on April 12, 2024, the Court allowed a petitioner to withdraw her petition with the liberty to re-file and challenge the rejection in the list on June 7. 

The petitioner had challenged her exclusion from the Final Electoral Roll, arguing that her name was listed in the Legislative Assembly Constituency No. 1, Dimapur, but was missing from the final roll

. Despite the respondent detailing the publication dates and actions taken, including a rejection due to late submission, the Court found she had not acted diligently. However, the Court allowed her to withdraw her petition with the liberty to re-file and challenge the rejection.

Meanwhile, in another related case, the Court on June 3 dismissed three writ petitions concerning the non-inclusion of petitioners' names in the electoral roll for the Zunheboto Town Council elections. 

The petitioners argued that their applications, submitted through Gaon Burahs, were ignored, and they challenged the publication adequacy of the draft rolls under Rule 6 of the Nagaland Municipal Rules, 2023.

The court found that the petitioners failed to act within the required timeframe and concluded that the procedures for electoral roll revisions had been properly followed.

Health-Related Matters: Challenge to Ban on Private Practice
On June 6, the High Court permitted petitioners to withdraw a writ petition challenging the ban on private practice by government doctors via an Office Memorandum dated July 31, 2023. 

This memorandum, issued by the Nagaland Health and Family Welfare Department, prohibits in-service government doctors from engaging in private practice and directs private healthcare establishments not to employ in-service government health workers.

The petitioners, who are doctors in various health institutions, argued that this memorandum infringes their rights under Article 19(1)(g) of the Indian Constitution, which guarantees the right to practice any profession. 

However, they acknowledged that without challenging the Nagaland Healthcare Establishment Act, 1997, under which the memorandum was issued, their petition would not succeed. The Court agreed that a challenge to the 1997 Act was necessary for contesting the memorandum. 

Consequently, it allowed the petitioners to withdraw their current petition and granted them the liberty to file a fresh one, challenging the 1997 Act and seeking related reliefs. Meanwhile, the Gauhati High Court Kohima Bench on June 5 directed the State of Nagaland to ensure that all necessary tests for the diagnosis and treatment of Hepatitis C Virus (HCV) are provided free of cost. 

The Division Bench of Justice Devashis Baruah and Justice Budi Habung also directed the State of Nagaland to keep the Model Testing Centres (MTCs) fully functional so that patients can obtain the necessary facilities as provided in the National Viral Hepatitis Control Programme (NVHCP).

In another case, the Division Bench of the Gauhati High Court Kohima Bench on June 5 dismissed an appeal against the ruling of a single-judge bench of the Court on May 14, which upheld the Nagaland Government's decision to conduct a Special Recruitment Drive for three Junior Dental Surgeon posts. Disposing of a writ petition, the May 14 order directed the State to amend its November 2, 2022 notification, reducing the recruitment posts for Junior Dental Surgeons from five to three. 

On the same day, the High Court removed the financial caps on benefits under the Janani Shishu Suraksha Karyakram (JSSK) in Nagaland.