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2019 DIGILAW 134 (GAU)

TSUKTINUNGBA S/O ALEMYAPANG v. LIMATOSHI

2019-01-30

A.K.GOSWAMI, A.S.BOPANNA

body2019
JUDGMENT : A.S. BOPANNA, J. 1. Heard Mr. Manabendra Nath, learned counsel for the appellant. 2. Mr. Tia Ao, learned Government Advocate, Nagaland accepts notice on behalf of Respondent Nos. 2 to 4. Considering the nature of the dispute raised, notice on Respondent No.1 is dispensed. 3. The appellant is before this Court assailing the order dated 30.11.2018 passed by the learned Single Judge in W.P. (C) No.189 (K) of 2016. The Respondent No.1 herein was before the learned Single Judge seeking that his case be considered for appointment on the ground that his grandfather had donated land to the Government. In addition, in the said writ petition, the petitioner had also questioned the appointment of Respondent No.4 therein, i.e. the appellant herein, by contending that his appointment was made without following due process of law. The learned Single Judge having made a detail consideration of the matter was of the opinion that the prayer of the petitioner seeking a direction to appoint him would not arise. However, while considering the validity of the appointment of Respondent No.4 therein, i.e. the appellant herein, the learned Single Judge was of the opinion that the appointment of appellant herein was made without advertising the post and calling for applications. In that view, the learned Single Judge being of the opinion that in matter of public employment, such procedure not being followed, would not be sustainable and, accordingly, the appointment of Respondent No.4, the appellant herein, was held as illegal. Hence, the appointment order dated 11.02.2016 was set aside and a direction was issued to advertise the post and liberty was granted to the petitioner as well as to Respondent No.4 to apply and respond to such advertisement and the official respondents were directed to complete the process. It is against such order, the appellant is before this Court. 4. Though the learned counsel for the appellant has sought to assail the order passed by the learned Single Judge, the factual position as depicted therein, in any event, would not be disputed. The learned counsel for the appellant is unable to produce any material to show that the appointment of the appellant through the order dated 11.02.2016 was made after following due process of law. The learned counsel for the appellant is unable to produce any material to show that the appointment of the appellant through the order dated 11.02.2016 was made after following due process of law. Hence, insofar as the learned Single Judge had arrived at the conclusion that the order dated 11.02.2016 being not sustainable, the conclusion reached is in accordance with law, more particularly when the learned Single Judge has taken into consideration the position of law and has thereafter arrived at such conclusion. In any event, insofar as the conclusion as reached by the learned Single Judge to decline the writ petitioner a mandamus to appoint him, the petitioner therein has accepted that portion of the order and the same does not call for consideration. 5. At this stage, the learned counsel for the appellant would submit that if an advertisement, as directed by the learned Single Judge is issued, the appellant would participate in the said process. He would further submit that till the process of selection and advertisement is made, the appellant be permitted to discharge his duties since he has been appointed as far back as on 11.02.2016 and was discharging his duties till the order of the learned Single Judge has set aside such appointment. In that view, in a matter of present nature, since in any event the order of the learned Single Judge will have to be implemented and the process of selection is to be made by issuing fresh advertisement and till such time since, in any event, the official respondents may also require to extract the work, only in order to balance the equity, we find it appropriate to allow the appellant to continue with the post subject to further clarification that the process of selection after issue of advertisement be completed in a time frame. 6. In that view, we direct that the official respondents will comply with the direction issued by the learned Single Judge and, shall, in any eventuality, issue such advertisement within one month from the date of this order. The process of selection shall be completed within a period of three months thereafter. In other words, the entire process of selection pursuant to the order passed by the learned Single Judge shall be completed within a period of four months from the date of this order. The process of selection shall be completed within a period of three months thereafter. In other words, the entire process of selection pursuant to the order passed by the learned Single Judge shall be completed within a period of four months from the date of this order. Until such time, the appellant shall be permitted to discharge his duties. It is clarified that if the process of selection is not completed and in the said process if the appellant does not succeed, the official respondents shall, in that event, relieve the appellant at the end of four months from the date of this order. In terms of the above direction, the instant appeal stands disposed of.