Against Corruption & Unabated Taxation (ACAUT) v. State of Nagaland
2018-08-03
MICHAEL ZOTHANKHUMA
body2018
DigiLaw.ai
JUDGMENT : Michael Zothankhuma, J. 1. Heard Ms. Zhimomi, learned Counsel for the petitioners. Mr. K. Sema, learned Sr. Addl. Advocate General appears for the State Government assisted by Ms. Livika for respondent Nos. 1 to 26, except 7 and 19. Mr. Taka Masa, learned Counsel appears for the respondent No. 7. Mr. C.T. Jamir, learned Senior Counsel appears for the respondent Nos. 80 to 137. Mr. K. Ndang, learned Counsel appears for the respondent Nos. 64 to 68 and 70 to 73. Ms. Naomy Sale, learned counsel appears for the respondent Nos. 21 and Mr. K. Kire, learned Counsel appears for the respondent No. 19. 2. The petitioners' case in brief is that the State respondents have been making rampant backdoor appointments to various Class I, Class II, Class III and Class IV posts under the Government of Nagaland on contract/ad hoc basis and regularizing the said appointees by way of the impugned O.M. dated 04.08.2008 and O.M. dated 11.08.2016, which is in violation of the directions of the Apex Court in the case of State of Karnataka Vs. Umadevi, reported in 2006 (4) SCC 1 . 3. The petitioner's counsel submits that no advertisements have been issued by the State respondents before appointing persons on contract/ad hoc basis and without following the recruitment rules made for the said post. She submits that the appointments made on contract/ad hoc basis by the State respondents are being made on a pick and choose policy and as the same has been done without any selection process, the same has resulted in depriving thousands of educated youth of the State from participating in the selection process. The petitioner's counsel has produced recruitment rules pertaining to various posts under all the Departments under the Government of Nagaland, except the Art and Culture Department. She submits that as recruitment rules have been framed, the vacancies should be filled up as per rules, after vacancies are notified and advertised. 4. The petitioner's counsel thus prays for setting aside the impugned OMs dated 4.8.2008 and 11.8.2016. She has also prayed for setting aside appointments orders made on contract/ad hoc basis and to terminate the services of 706 backdoor appointees, appointed before and after 06.06.2016, including the impleaded 110 private respondents and to fill up the said posts as per the recruitment rules, after calling for advertisements.
She has also prayed for setting aside appointments orders made on contract/ad hoc basis and to terminate the services of 706 backdoor appointees, appointed before and after 06.06.2016, including the impleaded 110 private respondents and to fill up the said posts as per the recruitment rules, after calling for advertisements. The petitioner's Counsel also submits that though the petitioner No. 1 is an unregistered association/body, the petitioner No. 1 has the locus standi to file this writ petition as they stand on behalf of the people of Nagaland and in support of her submission, she has relied upon the case of the State of Himachal Pradesh & Ors. Vs. Himachal Pradesh Nizi Vyanysayik Prishikshan Kendra Singh, reported in 2011 (6) SCC 597 . In support of her submission that regularization of contractual employees are sought to be made in violation of the directions laid down by the Apex Court, the learned counsel for the petitioners has relied upon the Judgment of the Apex Court in State of Karnataka Vs Uma Devi, reported in 2006 (4) SCC 1 . 5. Mr. K. Sema, learned Senior Addl. Advocate General submits that the writ petition is not maintainable and the same is defective due to non joinder of necessary parties, inasmuch as, the writ petitioners have prayed for terminating the appointments of 706 persons, while impleading only 110 persons in the writ petition. He also submits that the petitioner No. 1 is an unregistered body and accordingly, the petitioner No. 1 has no locus standi to file the writ petition. He further submits that the other petitioners are not aggrieved persons, they have no locus standi to file the writ petition, as no legal or fundamental right of theirs has been violated. He also submits that as the writ petition is not a Public Interest Litigation, the writ petition, not being maintainable, should be dismissed. 6. In support of his submissions, the learned Senior Addl. Advocate General has relied upon the Judgments of the Apex Court in the case of R.K. Jain Vs. Union of India reported in 1993 (4) SCC 119 (74), (ii) 2006 11 SCC 731 , (iii) Mina Ram Kumar & Ors. Vs. State of Assam & Ors. reported in 2014. (2) GLT 480, (iv) S.P. Gupta Vs. Union of India & Anr. reported in 1981 (Supp) SCC 87, (v) Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra & Ors.
Union of India reported in 1993 (4) SCC 119 (74), (ii) 2006 11 SCC 731 , (iii) Mina Ram Kumar & Ors. Vs. State of Assam & Ors. reported in 2014. (2) GLT 480, (iv) S.P. Gupta Vs. Union of India & Anr. reported in 1981 (Supp) SCC 87, (v) Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra & Ors. reported in 2013 (4) SCC 465 and (vi) Udit Narain Singh Malpaharia Vs. Additional Member Board of Revenue, Bihar & Anr. reported in AIR 1963 SC 786 . 7. Mr. Taka Masa, learned Senior Counsel appears for the respondent No. 7 and reiterates the submission made by Mr. K. Sema. He also submits that the petitioner No. 1 had earlier filed PIL No. 11 (K)/2015 with regard to the same issue and this Court vide Order dated 05.08.2016, had disposed of the same in view of the O.M. dated 06.06.2016 issued by the State Government. He submits that this Court in its Order dated 05.08.2016 passed in PIL No. 11(K)/2015 had allowed the petitioner to approach this Court by filing an appropriate petition in the event that there was a violation of the clauses contained in the O.M. dated 06.06.2016. He submits that as the O.M. dated 06.06.2016 imposed a complete ban on contractual appointments subsequent to 06.06.2016, all posts that had been filled up prior to O.M. dated 06.06.2016 have been left untouched and thus; the same has become a closed chapter. He submits that the petitioners have not shown how they are aggrieved by the appointments made and as to whether they were eligible to be considered for the posts when the contractual/ad hoc appointments were made in the various grades/cadres of all the Departments under the Government of Nagaland. He also submits that there has been no violation of the O.M. dated 06.06.2016 by the Rural Development Department. 8. Mr. C.T Jamir, learned Senior Counsel, who appears for the respondent Nos. 80 to 137 also reiterates the submissions made by the earlier 2 (two) counsels for the respondents. He also states that the petitioners not having impleaded all the 706 persons whose appointments are under challenge in the writ petition, the writ petition suffers from non-joinder of necessary parties. In this regard, he relies upon the judgment of the Apex Court in the case of Public Service Commission, Uttaranchal Vs. Mamata Bisht & Ors.
He also states that the petitioners not having impleaded all the 706 persons whose appointments are under challenge in the writ petition, the writ petition suffers from non-joinder of necessary parties. In this regard, he relies upon the judgment of the Apex Court in the case of Public Service Commission, Uttaranchal Vs. Mamata Bisht & Ors. reported in 2010 (12) SCC 204 . He further submits that the issues that had been settled vide the Order dated 05.08.2016 passed in PIL No. 11(K)/15 cannot be re-opened by the petitioners, as the Order dated 05.08.2016, passed in PIL No. 11 (K)/l 5 has attained finality. He also submits that the O.M. dated 06.06.2016 only bars future contractual appointments and the challenge to the O.Ms dated 04.08.2008 and 11.08.2016 are misplaced, as they only relate to regularization of persons who have already been appointed on contractual basis, prior to the issuance of the O.M. dated 06.06.2016. 9. Mr. Imti Longchar, learned counsel for the respondent Nos. 64 to 68 and 70 to 73 submits that the petitioners have not been appointed on contract basis but have been appointed on retainer basis as standing counsels/Government pleaders subsequent to the O.M. dated 06.06.2016. He submits that the petitioners have not taken the stand that they were eligible to be appointed to such posts and accordingly, it cannot be said that the petitioners are aggrieved persons. He also submits that there is no prayer in the writ petition for terminating the appointments of the respondent Nos. 64 to 68 and 70 to 73. The other learned counsels for the respondents reiterate the submissions made by the other counsels for the respondents. 10. I have heard the learned counsels for the parties. 11. In the present case, it is an admitted fact that the petitioner No. 1 is an unregistered body. In the case of Meghalaya Wine Dealers Association & Anr. Vs. State of Meghalaya & Ors., reported in 2010 (2) GLT 673, the Division Bench of this Court has held that unless an association or body of persons obtains the character of a juristic person or legal person by registering itself under a statute, the said association cannot file a writ petition. In the case of State of Himachal Pradesh & Ors. Vs.
In the case of State of Himachal Pradesh & Ors. Vs. Himachal Pradesh Nizi Vyanysayik Prishikshan Kendra Sangh, reported in 2011 (6) SCC 597 , the Government of Himachal Pradesh had created the State Council of Vocational Training (SCVT) for establishing and awarding Trade certificates for Craftsman and by prescribing standards and curriculum for craftsman training in pursuance to a Policy of the Government. Letters of intent had been issued to the members of the respondents' association, permitting them to run various courses including Art and Craft, Hotel Management, etc. The permission to run the institution for running the vocational courses for the academic sessions for the 2007-2008 was not accorded by the State Government to the respondents' association. It was in that context that the respondents' association, which was not a registered Body, had filed a writ petition against the State Government and the SCVT. The Court had entertained the writ petition. The petitioners' counsel has, by relying upon the above judgment, sought to impress upon this Court that an unregistered body/association can file a writ petition. However, on a further reading of the above case, it is seen that the respondent association had been recognized by the Himachal Pradesh SCVT, which had been created by the State Government and permission had been given to it for running vocational courses earlier. Thus, there was no infirmity in the filing of a writ petition by the respondent in the above case. The above facts clearly goes to show that the fact situation in the present case and in the case of State of Himachal Pradesh & Ors Vs. Himachal Pradesh Nizi Vyanysayik Prishikshan Kendra Sangh (supra) are different. It is settled law that a judgment is an authority for the case it decides and not what logically follows from it. A little difference in facts can change the entire complexion of the case and the precedential value of a case may lose its meaning due to differences in facts. Similarly, the present case is distinguishable, as there is a difference in the factual situation. In this case, the petitioner No. 1 is an unregistered body and is also not recognized by the Government of Nagaland. Accordingly, this Court is of the view that the case of State of Himachal Pradesh & Ors. Vs. Himachal Pradesh Nizi Vyanysayik Prishikshan Kendra Sangh (supra) is not applicable to the present case in hand.
In this case, the petitioner No. 1 is an unregistered body and is also not recognized by the Government of Nagaland. Accordingly, this Court is of the view that the case of State of Himachal Pradesh & Ors. Vs. Himachal Pradesh Nizi Vyanysayik Prishikshan Kendra Sangh (supra) is not applicable to the present case in hand. 12. In the case of Udit Narain Singh Malpaharia Vs. Additional Member Board of Revenue, Bihar & Anr, reported in AIR 1963 SC 786 , the Apex Court has held that if the person is likely to suffer from an order of the Court in which he is not a party, the order so made could not be an effective one, as the same would be against all principles of natural justice. The same ratio was reiterated by this Court in the case of Public Commission, Uttaranchal Vs. Mamta Bisht & Ors., reported in 2010 (12) SCC 204 . In the case of R.K. Jain Vs. Union of India, reported in 1993 (4) SCC 119 , the Apex Court has held at para 74 as follows:- "74. This writ petition is also not a writ of quo warranto. In service jurisprudence it is settled law that it is for the aggrieved person i.e. non-appointee to assail the legality of the offending action. Third party has no locus standi to canvass the legality or correctness of the action. Only public law declaration would be made at the behest of the petitioner, a public-spirited person." 13. In the case of S.P. Gupta Vs. Union of India & Union of India & Anr., reported in 1981 (Supp) SCC 87, the Apex Court has held in para 25 as follows:- "25. Before we part with this general discussion in regard to locus standi, there is one point we would like to emphasise and it is, that cases may arise where there is undoubtedly public injury by the act or omission of the State or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals.
In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission, but if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action, for the effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want." "10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one whose right or interest has been adversely affected or jeopardized." 14. In the case of Mina Ram Kumar & Ors. Vs. State of Assam & Ors., reported in 2014 (2) GLT 480, this Court has held that a person lacking requisite qualification for a post has no locus standi to assail appointment of others. 15. In the case of Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra & Ors., reported in 2013 (4) SCC 465 , the Apex Court held that only a person who has suffered from a legal injury can challenge the same under article 226 of the constitution. The Apex Court held that the Court can, of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court.
The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. 16. The present writ petition had been initially filed by 2 writ petitioners. There were initially only 51 private respondents. Subsequent impleadments have raised the number of writ petitioners to 8 and private respondents to 110. The petitioner No. 1 is an unregistered body. In view of the law laid down by the Division Bench of this Court in the case of Meghalaya Wine Dealers Association & Anr. Vs. State of Meghalaya & Ors. (Supra), this Court holds that the petitioner No. 1 does not have the locus-standi to file the writ petition as it is an unregistered Association/body. With respect to the other petitioners, it is seen that the challenge made in this writ petition is for termination of 655 alleged backdoor appointments appointed prior to 06.06.2016 and 51 appointees made subsequent to the O.M. dated 06.06.2016. It is settled law that it would not be proper for a Writ Court to decide an issue to the detriment of the persons, who are not parties to the case. Besides the above, there has been no prayer to set aside the termination of some of the private respondents in the writ petition, specifically the respondent Nos. 64 to 68 and 70 to 73. The petitioner has made a general and sweeping prayer for terminating the services of 706 appointments without giving specifics and particulars as to why the appointments should be terminated. Further, these are only 137 respondents in the case, out of which respondent Nos. 1 to 27 are State respondents. The main ground of challenge by the writ petitioners for termination of the petitioners of 706 contractual/ad hoc appointees is that they were not appointed as per Rules and also without issuance of any advertisements.
Further, these are only 137 respondents in the case, out of which respondent Nos. 1 to 27 are State respondents. The main ground of challenge by the writ petitioners for termination of the petitioners of 706 contractual/ad hoc appointees is that they were not appointed as per Rules and also without issuance of any advertisements. However, the question of which among the 706 appointees are regularized employees have also not been specified by the petitioners in this case. 17. It is also noticed that the writ petitioner No. 1 had earlier filed PIL No. 11 (K) of 2015, whereby it had challenged the contractual appointments made by the State Government. It had also made a prayer for quashing the O.M. dated 04.08.2008, by which contract and ad-hoc appointments were regularized against sanctioned posts. This Court, vide order dated 05.08.2016, disposed of PIL No. 11 (K) of 2015 as follows: "On 04.08.2016, an affidavit sworn by the Chief Secretary to the Government of Nagaland has been brought on record by enclosing a copy of the OM bearing number AR-5/ASSO/98 dated 06.06.2016 issued by the Chief Secretary to the Government of Nagaland inter alia imposing a complete ban on contractual appointment. The said OM further provides that henceforth, all posts coming within the purview of NPSC shall be filled up only through a proper recruitment process and the said posts cannot be filled up even on temporary basis in any other manner. The notification dated 06.06.2016 also provides that any appointment made on contract basis henceforth, shall be deemed to be null and void. The affidavit discloses that the office memorandum dated 12.05.2016 has been issued on the basis of Cabinet decision and in terms of the decision of the Supreme Court in Uma Devi's case." "In view of the office Memorandum dated 06.06.2016, the grievance expressed in the PIL stand substantially redressed and therefore, this Court is of the opinion that for the present nothing survives for adjudication in this PIL. At this stage, Mr. Aier, learned Counsel for the petitioner submits that similar O.M. issued in the past have not been implemented by the Government in letter and spirit and therefore, prays for a direction upon the Government to strictly adhere to the O.M. dated 06.06.2016. Mr.
At this stage, Mr. Aier, learned Counsel for the petitioner submits that similar O.M. issued in the past have not been implemented by the Government in letter and spirit and therefore, prays for a direction upon the Government to strictly adhere to the O.M. dated 06.06.2016. Mr. Sema, on the other hand, submits that the Government is committed to the cause as highlighted in the affidavit and therefore, the apprehension of the petitioner is totally unfounded. In view of the averments made in the affidavit filed by the Chief Secretary undertaking to go by the O.M. dated 06.06.2016 there is no reason for this Court to doubt the intention of the Government in this regard. As such, no further direction is called for at this stage. This Court hopes and expects that henceforth, the Government of Nagaland would scrupulously adhere to the criteria laid down by Notification dated 06.06.2016 in the matter of appointment made in public offices. It is, however, made clear that the PIL petitioner would be at liberty to approach this Court by filing appropriate petition in the event there is any violation of the Clauses contained in the Notification dated 06.06.2016. With the above observation, this PIL stands closed." In the case of Union of India Vs. Rajpal Singh, reported in 2009 (1) SCC 216 , the Apex Court has held that the authority is bound by the standard it professes and any departure from the professed standards would vitiate the decision making process. Accordingly, the State respondents would have to bear in mind the fact that in the event of any of the private respondents being appointed on a contractual/temporary basis, in violation of the O.M. dated 06.06.2016, the same would have to be deemed to be null and void. 18. The above order dated 05.08.2016 passed in PIL No. 11 (K) of 2015 shows that no contractual or temporary appointments are to be made by the State respondents subsequent to the issuance of the O.M. dated 06.06.2016 and any such appointments made subsequent to the O.M. dated 6.6.2016 are to be deemed to be null and void.
18. The above order dated 05.08.2016 passed in PIL No. 11 (K) of 2015 shows that no contractual or temporary appointments are to be made by the State respondents subsequent to the issuance of the O.M. dated 06.06.2016 and any such appointments made subsequent to the O.M. dated 6.6.2016 are to be deemed to be null and void. Subsequent to the order dated 05.08.2016 passed in PIL No. 11 (K) of 2015, the State Government has issued O.M. dated 11.08.2016, by which it has been decided that cases of Government employees appointed on contractual basis prior to the Notification vide O.M. dated 06.06.2016 shall be taken up for regularization, on completion of 3 years of continuous service on contract/ad-hoc basis in terms of the O.M. dated 04.08.2008. 19. The O.M. dated 11.08.2016 is reproduced here below: "Office Memorandum No. AR-5/ASSO/98 Dated, Kohima the 11th Aug, 2016 Sub: Ban on Appointments on Contract basis Following the ban on appointments on contract basis imposed vide this Department's O.M. of even number dated 6th June, 2016, the matter has been reviewed and it has been decided that the existing ban on Contract and ad-hoc appointments shall continue, and all appointments should be done only by following the prescribed procedure. 2. It has been further decided that the Departments shall estimate the number of vacancies likely to arise during the next one year on account of retirement, promotion etc. and place requisition for filling up of such vacancies to the Nagaland Public Service Commission (NPSC) to enable timely recruitment. 3. Keeping in view the ban on appointment on contract basis and the need to clear earlier, cases pending for regularization, it has also been decided that the cases of Government employees appointed on contract basis prior to the ban notified vide P&AR Department's O.M. No. AR-5/ASSO/98 dated 06.06.2016 shall be taken up for regularization on completion of 3 years of continuous service on contract/ad-hoc basis in terms of O.M. No., AR-5/ASSO/98 dated 04.08.2008 and in supersession of O.M. No. AR-5/ASSO/98 dated 20.10.2015. 4. This has the approval of the Cabinet vide Memorandum No. CAB-2/2013 dated 12th July, 2016. Sd/- Pankaj Kumar Kumar, IAS Chief Secretary to the Government of Nagaland, Dated, Kohima the 11th Aug, 2016" 20.
4. This has the approval of the Cabinet vide Memorandum No. CAB-2/2013 dated 12th July, 2016. Sd/- Pankaj Kumar Kumar, IAS Chief Secretary to the Government of Nagaland, Dated, Kohima the 11th Aug, 2016" 20. The O.M. dated 04.04.2008 is reproduced here below: "Office Memorandum Dated Kohima, the 4th July, 2008 Subject: Regularization of Contract/Ad-Hoc appointments against sanctioned post In partial modification of this Department Office Memorandum of even number dated 23rd August, 2007, the Governor of Nagaland is pleased to order that Contract employees who have completed more than 3 (three) years of continuous service on Contract/Ad-hoc, will be eligible for regularization against sanctioned post. 2. The following terms and conditions will be applied for regularization of the contract/ad-hoc employees: (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) This OM shall not apply to posts where there are pending court cases; (iv) This OM shall not apply where the posts have already been requisitioned for filling up through the NPSC; 3. The suitability Test should be conducted by the concerned Departments under the Chairmanship of the Head of the Administrative Department with representative from the P&AR Department and ATI, Nagaland, Kohima. Qualifying marks should be laid down in advance and only those who qualify such a screening test should be considered for regularization. 3. The concerned Departments will then submit specific cases to the Government for approval after obtaining the recommendations of the Screening Committee which will compose of: (i) Chief Secretary - Chairman (ii) Addl. Chief Secretary (Home) - Member (iii) Principal Secretary (P&AR)- Member (iv) Commissioner& Secretary (Law) - Member (v) Joint Secretary (P&AR) - Member Secretary The Departments will furnish to the Member Secretary of the Screening Committee details of all employees proposed for regularization with relevant documents like creation of posts order, original appointment order, certificates of educational qualification, date of birth, ACRs and result of the screening test wherever stipulated. 4. All Departments having contract/ad-hoc employees shall consolidate and submit the names of all contract/ad-hoc employees cumulatively and not in piecemeal to the concerned Head of the Administrative Department. Sd/- Lalhuma Chief Secretary to the Government of Nagaland Dated Kohima, the 4th July, 2008" 21.
4. All Departments having contract/ad-hoc employees shall consolidate and submit the names of all contract/ad-hoc employees cumulatively and not in piecemeal to the concerned Head of the Administrative Department. Sd/- Lalhuma Chief Secretary to the Government of Nagaland Dated Kohima, the 4th July, 2008" 21. On pursuing the conditions of the O.M. dated 11.08.2016 read with the O.M. dated 04.08.2008, this Court finds that the State Government are going to consider regularization of employees who have completed 3 years of continuous service on contract/ad-hoc basis. This Clause, which is inserted in the O.M. dated 11.08.2016 and the O.M. dated 04.08.2008 is in violation of the law laid down by the Apex Court in the case of the State of Karnataka & Ors. Vs. Uma Devi, reported in 2006 (4) SCC 1 . 22. The Apex Court in the case of State of Karnataka & Ors. Vs. Uma Devi, reported in 2006 (4) SCC 1 has held that regular appointments must be a Rule while filling regular vacancies. It has further stated that where statutory Rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the Rules so framed. It has also held that regularization of ad-hoc, contractual, casual employees etc. cannot be used as an alternative mode of recruitment. However, the Apex Court at para 53 has held that the Union of India and the State Governments should take steps to regularize, as a one time measure, the services of such irregularly appointed (not illegally appointed) persons, who have worked for 10 (Ten) years or more, as on date of the judgment, i.e. 10.04.2006, in duly sanctioned posts that are required to be filled up.' 23. In the case of State of Karnataka & Ors. Vs. M.L. Kesari & Ors. reported in 2010 (9) SCC 247 , the Apex Court has held at para 8, 9, 10 and 11 as follows: "8. Umadevi casts a duty upon the Government or instrumentality concerned, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.04.2006). 9.
Umadevi directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.04.2006). 9. The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services. 10. At the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequentially, several departments and instrumentalities did not commence the one-time regularization process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi, will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi has expired. The one-time exercise should consider all daily-wage/ad hoc/casual, employees who had put in 10 years of continuous service as on 10.04.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi , the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi , are so considered. 11. The object behind the said direction in para 53 of Umadevi is twofold.
The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi , are so considered. 11. The object behind the said direction in para 53 of Umadevi is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision of Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily wage/ad hoc/casual basis for long periods and periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.04.2006 [the date of decision of Umadevi] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision of Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure." 24. Thus, on a reading of the law laid down by the Apex Court in Uma Devi (supra) and M.L. Kesari (supra), it is clear that the State Government can only regularize the services of those irregularly appointed contract/ad-hoc employees, who have served for more than 10 years, without the benefit of any interim orders of the Courts or Tribunals, as on the date the judgment was rendered in Uma Devi (supra), i.e. on 10.04.2006. The upshot of the above is that as a one time measure, the State Government can regularize the services of those irregularly appointed contract/ad hoc employees who have served for a period of 10 years as on 10.04.2006. Thus, no irregularly appointed contract employee can be considered for regularization if he has not completed 10 years of contractual/ad-hoc employment as on 10.04.2006.
Thus, no irregularly appointed contract employee can be considered for regularization if he has not completed 10 years of contractual/ad-hoc employment as on 10.04.2006. Thus, the O.M. dated 11.08.2006 and the O.M. dated 04.08.2008, insofar as it is inconsistent with the law laid down in Uma Devi (supra) and M.L. Kesari (supra) cannot be applied by the State Government. If the State Government act in violation of the law laid down by the Apex Court, the same would have to be considered to be illegal and a challenge to the same can be made as the said regularization will be null and void. 25. In the case of Jammu and Kashmir Vs. District Bar Association Bandipura, reported in 2017 (3) SCC 410 , the Apex Court has held that Uma Devi (supra) is not an authority for the proposition that the executive or the legislature cannot frame a scheme for regularization. The above clearly stipulates that the executive or the legislature can make a fresh scheme for regularization of its contractual/ad-hoc employees. However, the said scheme will again have to be in consonance with para 53 of Uma Devi (supra). Otherwise, the same will be arbitrary and violative of Article 14 of the Constitution. Thus, the State would have to bear in mind the fact that besides the conditions imposed in para 53 of Uma Devi (supra), the regularization of only irregular appointments can be made and regularization of illegal appointments cannot be made. 26. As the issue raised in the present writ petition is important, keeping in view the fact that of appointments have been made to various Class -I, Class - II, Class- III and Class - IV Grades on contractual/ad-hoc basis, without issuance of any advertisement and dehors the Recruitment Rules holding the field, the State respondents should, after applying the para 53 of Uma Devi (supra), take steps for filling up the regular vacant posts, which are manned by contract/ad-hoc employees, as per the recruitment Rule in force. In the case of Union Public Service Commission Vs. Girish Jayanti Lal Vagera, reported in 2006 (2) SCC 482 , the Apex Court has held at para 12 as follows: "12.
In the case of Union Public Service Commission Vs. Girish Jayanti Lal Vagera, reported in 2006 (2) SCC 482 , the Apex Court has held at para 12 as follows: "12. Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment' or 'appointment' cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation, etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution (see B.S. Minnas v. Indian Statistical Institute)." 27. In the case of State of Orissa Vs. Mamata Mohanty, reported in 2011 (3) SCC 436 , the Apex Court has held at para 35 and 36 as follows: "35. At one time this Court had been of the view that calling the names from employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, it came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
But, later on, it came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely calling the names from the employment exchange does not meet the requirement of the said article of the Constitution. 36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary, For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit." 28. The judgments of the Apex Court, as quoted above, thus, clearly gives primacy to advertisements before filling up vacant posts as per the recruitment Rules in force. The State respondents should, accordingly consider filling up the regular vacant posts under the State Government as per the law laid down by the Apex Court and any contract/ad-hoc employee who is appointed to the post on contract basis should also be able to participate in the selection process, provided the person is eligible for the same as per Recruitment Rules and is not regularized as per para 53 of the case, Uma Devi (supra).
In view of the law laid down by the Apex Court, any contractual, temporary or ad hoc appointments made, without prior advertisements being issued in the media, including newspapers, will be violative of Article 14 and 16 of the Constitution and liable to be set aside and the said post filled up as allowed as per law. However, the question of filling up the said posts will come into play after the State respondents have taken recourse to para 53 of Uma Devi (supra). 29. The petitioners will have to show that they are aggrieved by the appointments made. Thus, they will have to give material particulars to challenge the appointments made, keeping in mind the relevant recruitment rules. The petitioners have, however made a sweeping challenge to appointments made in various grades of posts pertaining to approximately 25 Government Departments, thereby trying to brush aside all alleged irregularities and illegalities with one sweep of the broom. It is very difficult for this Court to sift through the facts of this case in the absence of complete material facts, in respect to the challenge made to 706 allegedly irregular/illegal appointments. The petitioners will have to file separate petitions making a challenge to the various appointments by giving specific particulars, as their grievance relates to different appointments in various department of the Government of Nagaland. Further, this writ petition cannot be decided piece meal. They shall also have to implead all persons whose rights may be affected by the petitions. In view of the reasons stated above, this Court finds that the present petition is not maintainable in its present form. The State respondents should not regularize any person if he has completed only 3 years of continuous service on contract/ad-hoc basis in terms of the O.M. dated 11.08.2016 and the O.M. dated 04.08.2008. The petitioners are, however given the liberty to make a fresh challenge to the appointments of the impleaded respondents and other persons as per law, as the present writ petition has not been dismissed on merit, but only on the issue of maintainability.
The petitioners are, however given the liberty to make a fresh challenge to the appointments of the impleaded respondents and other persons as per law, as the present writ petition has not been dismissed on merit, but only on the issue of maintainability. With regard to the contention of the respondents that the issues that had been settled vide the Order dated 05.08.2016 passed in PIL No. 11(K)/15 cannot be re-opened by the petitioners, as the Order dated 05.08.2016 passed in PIL No. 11 (K)/15 has attained finality, this Court finds that the Order dated 05.08.2016 passed in PIL No. 11 (K)/15 can at best, be applicable to the petitioner no. 1 only and not to the other petitioners. 30. The writ petition, accordingly stands disposed of with the above observations.