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2011 DIGILAW 535 (GAU)

P. Aheshe Sema v. State of Nagaland

2011-06-21

BIPLAB KUMAR SHARMA

body2011
JUDGMENT B.K. Sharma, J. 1. Heard Mr. K. Sema, learned Counsel for the Petitioner. Also heard Mr. L.S. Jamir, learned Addl. Advocate General, Nagaland as well as Mr. I. Longjem, learned Counsel appearing for Respondent No. 5. 2. By means of this writ Petition, the Petitioner has challenged the orders dated 13.12.2006 (Annexure-15), by which the Respondent No. 5 was appointed as Dak Runner on contingency basis at a fixed pay of`2,000/-per month. According to the Petitioner, he being a land donor, he is entitled to get preference in the matter of appointment. It is the stand of the Petitioner that the office of the EAC is located on the plot of land he had donated for the purpose. Although, the Petitioner in that capacity made an application seeking appointment but instead of considering his case, the official Respondents appointed the Respondent No. 5. 3. In the counter filed by the Respondent No. 5, it has been stated thus: (a) Two persons from the Petitioners family, viz., Mr. Hevito and Smt. Hosheli, Dobashi and Gardener respectively have already been appointed at the office of the Extra Assistant Commissioner, Sitimi on the basis of land ownership. Therefore, to say that all vacancies in Grade IV posts should be given to land owners in perpetuity is a claim contrary to constitutional and statutory provisions and in direct conflict with Part III of the Constitution of India. (b) Though initially set up in the land belonging to the Petitioners family/clan, for the last 10(ten) years, the office of the Extra Assistant Commissioner, Sitimi has been functioning from the land of the Chishi clan, the clan of the answering Respondent. Therefore, the claim of the Petitioner is misconceived and untenable in law. (c) In addition to two appointments given to the Petitioners family on land ownership basis, the contract for the construction of the quarters of the Extra Assistant Commissioner, Sitimi was also been awarded to one Mr. Isac Sema, another person who is also from the Petitioners family/clan. The Petitioner has concealed these material facts and these can be ascertained from a Certificate dated 29.3.07 issued by the Village Council of Sitimi Village. 4. The further stand of the Respondent No. 5 is that he having been appointed on compassionate ground against the vacancy caused by voluntary retirement of his father on medical ground. 5. The Petitioner has concealed these material facts and these can be ascertained from a Certificate dated 29.3.07 issued by the Village Council of Sitimi Village. 4. The further stand of the Respondent No. 5 is that he having been appointed on compassionate ground against the vacancy caused by voluntary retirement of his father on medical ground. 5. In the counter affidavit filed by the official Respondents it has been stated that the State of Nagaland has not adopted any clear cut policy to appoint the person who has donated land to the Govt. As regards the appointment of the Respondent No. 5, it has been stated that he has been appointed on contingency basis and that the post may be filled up on regular basis. 6. As regards the aforesaid stand of the Respondent No. 5 regarding appointment of family members of the land donor i.e. the Petitioner, the Petitioner in his affidavit-in-reply filed against the counter affidavit filed by the Respondent No. 5, it has been stated that the persons named by the Respondent No. 5, were appointed on their own merit and not because of the donation of land. 7. From the above, what is seen is that while in one hand the claim is for appointment on the ground of land being donated but on the other hand the claim is for appointment on compassionate ground. The official Respondents considered the case of the Respondent No. 5 for appointment on contingency basis and he has been continuing as such for the last five years. As per the stand of the Govt. in its affidavit, the post is required to be filled up on regular basis. While doing so, the Respondents will also have to consider the fact that the Respondent No. 5 has been continuing in the post and that he was appointed on compassionate ground. 8. In the counter affidavit, the official Respondents have also stated that the Govt. of Nagaland has not adopted any policy as such for appointment of the land donors. On being asked as to whether there is any such provision in the recruitment rules, learned Counsel for the Petitioner submits that there is no such provision in the recruitment rules but in the Education Department, a policy has been adopted for appointment of land donors. 9. On being asked as to whether there is any such provision in the recruitment rules, learned Counsel for the Petitioner submits that there is no such provision in the recruitment rules but in the Education Department, a policy has been adopted for appointment of land donors. 9. In the instant case, we are concerned with the appointment of Dak Runner in the office of the EAC, Sitimi. If the recruitment rules does not provide for appointment of land donors, merely because a practice is being followed for appointment as such, the Petitioner cannot claim as a matter of right for appointment. Moreover, as reflected in the counter affidavit filed by the Respondent No. 5, some of his family members have already been appointed and that their such appointment are not on the basis of the fact that the land was donated but the fact of the matter is that some of the family members are in Govt. employment. 10. As per the stand of the Govt. in their counter affidavit, the post is required to be filled up on regular basis. While doing so, the Govt. may consider the case of the eligible candidates consistently with the observations made above and in respect of the Respondent No. 5. 11. The regular appointment to the post may be made as expeditiously as possible, preferably within 4(four) months. 12. With the above directions and observations, the writ Petition stands disposed of. There shall be no order as to costs.