1. Two writ petitioners who have been working as Labour Inspector on contract basis for more than 7 years have approached this court by this writ petition claiming regularization of their services on the basis of Office Memorandum issued on 4.8.2008 vide No. AR-5/ASSO/98 by the Joint Secretary to the Government of Nagaland in the Department Personnel and Administrative Reforms. 2. 1 have heard Mr. S. Temjen, learned counsel for the petitioner, Mr. I. Lingjem, learned counsel appearing for respondent Nos. 5 and 6 and Ms. Vilika Chishi, learned State counsel appearing for respondent Nos. 1 to 4. 3. The petitioner No. l was initially appointed on 6.8.2004 and petitioner No. 2 was initially appointed on 13.12.2006 on contract basis. Their appointments were extended from time-to-time and till now they have been holding posts of Labour Inspector. From the appointment letters issued to the petitioners it is clear that the said two posts were sanctioned posts although petitioners have been working on contract basis. The Government of Nagaland issued a notification on 4/8/08 in partial modification of its earlier Office memorandum dated 23.8.2007 for regularization of all such ad hoc/contract employees who completed more than 3 years of continuous service provided they were working against sanctioned posts. By paragraph 2 of the said Office Memorandum, as many as four terms and conditions were laid down and they are as follows: (i) There should be a sanctioned post. (ii) The employee should fulfill all the eligibility criteria for the post including the requisite educational qualification. (iii) The OM shall not apply to post where there is pending court case. (iv) The OM shall not apply where the post has already been requisitioned for filling up through NPSC. 4. It is provided in the said OM that suitability test should be conducted by the concerned Department under the Chairmanship of the head of the administrative department with representation from the P&AR Department and Administrative Training Institute (ATI), Nagaland. The procedure for constitution of screening committee has also been prescribed under the OM. Upon screening of the candidature, the report is to be submitted before the concerned head of administrative department for necessary orders. The procedure for constitution of screening committee has also been prescribed under the OM. Upon screening of the candidature, the report is to be submitted before the concerned head of administrative department for necessary orders. According to the petitioners, even after they had completed the requisite period of 3 years of continuous service against sanctioned posts, the authorities did not apply the OM in their cases although similarly situated candidates were favoured with the benefit of the OM. Rather three out five such vacancies were requisitioned for filling up through NPSC on 22.2.2008. One of similarly situated Labour Inspector, namely, Yolise Sangtam approached this court through WP(C) No. 110(K)/2011 and there upon a Single Bench of this court by order dated 29. 3. 2012 issued direction to the Government for considering her regularization in terms of the aforesaid OM dated 4. 8. 2008. The Government challenged the decision of the Single Bench before Division Bench vide WA No. 9(K)/2012 but the appeal was dismissed on 2.12.2013. In the meantime/the Government constituted screening committee on 2.11.2012 and the process of regularization of the service of said Yolise Sangtam is either complete or is being completed. The petitioner No. l was appointed before said Yolise Sangtam was appointed on contract basis and as such, regularization of the service of Yolise Sangtam without considering the case of petitioner No. l and for that the similarly situated candidate, namely, the petitioner No. 2 betrays apparent discrimination. The petitioners, therefore, claim that their cases should be treated at par with Yolise Sangtam and their services also be regularized on the basis of OM dated 4.8.2008. 5. The Government as well as the NPSC has submitted separate affidavits-in-opposition in this case. The respondent Nos. 5 and 6 represented the NPSC and the affidavit submitted on behalf of them is of utmost importance in this case. From the affidavit-in-opposition submitted by respondent Nos. 5 and 6, it appears that although 3 posts of Labour Inspector was requisitioned to the NPSC for direct recruitment consequent to which addendum was issued by the NPSC on 26.5.2008, the Government recalled the requisition and requested for re-advertisement on 14.9.2010. Pursuant to this, re-advertisement was issued on 31.3.2011 by the NPSC and selection was held but result was kept withheld in view of the pendency of the earlier writ petition. 6. Pursuant to this, re-advertisement was issued on 31.3.2011 by the NPSC and selection was held but result was kept withheld in view of the pendency of the earlier writ petition. 6. The Joint Secretary to the Government of Nagaland wrote a letter to the Secretary NPSC on 4.4.2012 informing that Government was contemplating to regularize the services of all the 4 Labour Inspectors who have been continuously working on contract basis for more than 3 years. The relevant paragraph of the said letter is quoted below: “However, in response to another writ petition WP(C) No 110(K) /2011 filed by the petitioner Shri Yoiise Sangtam, Labour Inspector on Contract basis, the hon’ble High Court has further given judgment for regularization of the petitioner basing on the O.M. served by the P&AR Department vide No. AR-5/ASSO/98 dated 4th August, 2008 for regularization of the incumbents serving more than three years on con tract basis. It is further to be mentioned that there are 5 Labour Inspectors on contract basis out of which four of the incumbents have served for more than 3 years. As such the department may be compelled to apply the same yardstick for regularization of the incumbents on contract basis who have “already served for more than 3 years.” 7. Thereafter, on 10.4.2012 a specific request was made by the Government of Nagaland to the NPSC for withdrawal of the 3 posts of Labour Inspector from the advertisement issued on 31.3.2011. The aforesaid letter dated 4.4.2012 and 10.4.2012 are available on record as Annexure F and G respectively of the affidavit-in-opposition submitted on behalf of the NPSC. It is also brought on record by the same affidavit that the NPSC refused to allow withdrawal of requisition for 3 posts of Labour Inspector from the advertisement and selection was already made. Thus from this affidavit of the NPSC it crystallizes that in view of previous judgment of this court the Government of Nagaland is no longer against applying the OM dated 4.8.2008 in case of the present petitioners for the purpose of maintaining parity. The Government initially opposed the process and fought the earlier writ petition unsuccessfully and continued the opposition by preferring writ appeal. The writ appeal was ultimately dismissed by the Division Bench of this court as stated above. Although by filing a separate affidavit-in-opposition in this case, the respondent Nos. The Government initially opposed the process and fought the earlier writ petition unsuccessfully and continued the opposition by preferring writ appeal. The writ appeal was ultimately dismissed by the Division Bench of this court as stated above. Although by filing a separate affidavit-in-opposition in this case, the respondent Nos. 1 to 4 have taken a stand that the present petitioners could not be accommodated and that recruitment should be made following the statutory rules, namely, Nagaland Labour Services (Amendment Rule), 2003 and Nagaland Labour Service (2nd Amendment Rules), 2008 yet, from the correspondence brought on record by Annexure F and 3 of the affidavit-in-opposition submitted by respondent Nos. 5 and 6, it is clear that the Government is not against maintaining parity. Under the aforesaid conspectus of circumstances, the question boils down to the point as to whether NPSC could have objected to withdrawal of the 3 posts of Labour Inspector advertised by the NPSC. This is because had the NPSC conceded to the request of the Joint Secretary to the Government of Nagaland for withdrawal of these 3 posts, the case of all the 5 Labour Inspectors including the present 2 petitioners also would have been taken up for regularization by the Government while doing so in case of Yolise Sangtam who is one of the 4 of the Labour Inspectors working on contract basis for more than 3 years. 8. A Public Service Commission is appointed under article 320 of the Constitution of India for assisting the Government in regard to recruitment, promotion, pension and disciplinary proceeding of the holders of civil post. The recommendation made by a Public Service Commission is merely advisory in nature (D ‘Silva AN v. Union of India AIR 1960 SC 1130). Such recommendation of public service commission cannot be mechanically accepted by the Government for taking action. The Government being the ultimate authority for appointment is to apply mind and thereupon to accept fully or partly or to reject fully or partly such recommendation made by a Public Service Commission. It has already been settled by the hon’ble Apex Court of the country in the case of Jatinder Kumar v. State of Punjab, AIR 1984 SC 1850 that recommendation of Public Service Commission being advisory in nature, is not binding on the Government. It has already been settled by the hon’ble Apex Court of the country in the case of Jatinder Kumar v. State of Punjab, AIR 1984 SC 1850 that recommendation of Public Service Commission being advisory in nature, is not binding on the Government. Now, question arises as to whether a Public Service Commission can object to the stand taken by the Government as has been done in the present case by way of refusing the request of the Government to withdraw 3 posts of Labour Inspector from the advertisement. The power, authority and jurisdiction of public service commission came up for consideration in the case of Jaiswal P.K. v. Debi Mukherjee, AIR 1992 SC 749 . In that case, the decision of the Government to withdraw requisition was not accepted by the Public Service Commission. Relying on the case of Jatinder Kumar (supra), the hon’ble Supreme Court observed that an independent body like Public Service Commission is established to initiate selection of best available talent for appointment to the post in question to avoid arbitrariness and nepotism in the matter of appointment. The selection by Commission is only recommendatory in nature and the official authority for appointment is the Government and if the Government declines to accept the recommendation and the Government prefers to place on the table of the Legislature its reasons and report for so doing Government is made answerable to the elected representation under the Constitution. This does not clothe a selectee with any right to appointment that is to say that he cannot force the Government to accept the recommendation of the Commission. It is further observed therein that once the decision of the Government for withdrawing from the process of selection by advertisement by public service commission was communicated to the Commission, it was not proper on the part of the Commission to ignore the communication of the Government and to go ahead with the selection. The hon’ble Supreme Court ultimately held such stand of the Commission to be hasty and unjustified. On the face of such finding of the hon’ble Supreme Court, there is no difficulty to hold in the present case that the respondent Nos. 5 and 6 committed jurisdictional error in not complying with the request of the Government for withdrawing 3 posts of Labour Inspector from the advertisement of the NPSC. On the face of such finding of the hon’ble Supreme Court, there is no difficulty to hold in the present case that the respondent Nos. 5 and 6 committed jurisdictional error in not complying with the request of the Government for withdrawing 3 posts of Labour Inspector from the advertisement of the NPSC. Besides, even if it is assumed for the sake of argument that the NPSC makes selection and recommends names of some persons for filling up 3 advertised of Labour Inspector, yet, it would have been open on the part of the Government to ignore such recommendation and go for applying me OM dated 4.8.2008 for the reasons mentioned in the letter dated 4.4.2012 (Annexure F to the affidavit-in-opposition submitted by respondent Nos. 5 and 6). 9. Although the letter dated 4.4.2012 written by the Joint Secretary to the Government of Nagaland to the NPSC shows that the Government was willing to apply OM dated 4.8.2008 in case of the present petitioners for regularization of their services by holding eligibility test, yet Ms. Vilika Chishi, learned Government Advocate argued that even in terms of the OM dated. 4.8.2008, the petitioners are not entitled to the benefit of the OM for non-compliance of its clause (iv). Requisition having been made already for selection through NPSC, the cases of the petitioners went beyond the scope of OM. Even for argument sake, such a stand taken by the learned Government Advocate cannot be accepted. There is no dispute that the petitioners are eligible for the post of Labour Inspector. There is no dispute that they have put in more than 3 years of service before the requisition was made. There is no dispute that the requisition made on 22.2.08 was subsequently withdrawn. Requisition dated 22.2.2008 having been withdrawn by the Government the effect thereof will be as if there was no recommendation at all. Thereafter fresh requisition was made only in the year 2010. Under such circumstances, the Government has failed to clarify as to why the cases of the present petitioners could not be taken up for regularization immediately after they had completed 3 years on continuous service on contract basis against the sanctioned post. Since the subsequent recommendation was made in. Thereafter fresh requisition was made only in the year 2010. Under such circumstances, the Government has failed to clarify as to why the cases of the present petitioners could not be taken up for regularization immediately after they had completed 3 years on continuous service on contract basis against the sanctioned post. Since the subsequent recommendation was made in. September 2010 before which the representation of the petitioner for regularization on the basis of OM was filed on 30.8.2010, the possibility that this representation was the driving force for issuing requisition cannot be ruled out. At least, there is scope for misuse of clause (iv) of the OM. In a given case, a not so fair person occupying pivotal position in the decision making process may subvert the normal flow of events under the OM in question so as to perpetrate discrimination to an ill fated employee not having a protective umbrella over his head. Such possibility of unfairness in executive action can be obviated by reading clause (iv) of the OM dated 4.8.2008 in the limited sense that such a bar under clause (iv) shall arise only if the requisition is made prior to completion of 3 years of continuous service on contract basis against existing vacancy. 10. The Government has not withdrawn the OM dated 4.8.2008 and it is also not the case of the Government that they have not applied this recommendation for similarly situated candidates. Even one such candidate, namely, Yolise Sangtam has either been regularized or is being regularized by applying the same OM. This Yolise Sangtam was appointed after the petitioner No. l was appointed. Regularization of service of Yolise Sangtam, therefore, is a clear prejudice to the interest of petitioner No. l. If the case of Yolise Sangtam was found to be eligible by this court for regularization under OM dated 4.8.2008, there is no reason as to why the present petitioners also should not be given the same benefit. In that view of the matter, letter dated 4.4.2012 (Annexure F to the affidavit-in-opposition submitted by respondent Nos. 5 and 6) issued by the Government for maintaining parity appears to be justified. 11. Accordingly, this writ petition is allowed and Government is directed to consider the case of the petitioners in the light of the aforesaid letter dated 4.4.2012 issued by the Government to NPSC expressing desire to maintain parity. 5 and 6) issued by the Government for maintaining parity appears to be justified. 11. Accordingly, this writ petition is allowed and Government is directed to consider the case of the petitioners in the light of the aforesaid letter dated 4.4.2012 issued by the Government to NPSC expressing desire to maintain parity. The whole exercise shall be completed within 3 months from today. No order as to cost.