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2019 DIGILAW 331 (GAU)

Limaakum v. State of Nagaland

2019-03-11

MICHAEL ZOTHANKHUMA

body2019
ORDER : Michael Zothankhuma, J. 1. Hard Ms. Esther, learned counsel for the petitioner as well as Mr. V. Vero, learned Government Advocate for the respondent Nos. 1 to 3. No one appears for respondent No. 4, though this Court vide Order dated 25.10.2018 has held that there is deemed service of notice on respondent No. 4. 2. The petitioner's case in brief is that the petitioner belongs to the descendants of Terasangba of Kichu Clan of Mokokchung Village, which had given land to the Government, for establishment of the office of the Executive Engineer, PWD (Housing), Mokokchung Division. On the retirement of one Sh. Mir Singh Bahadur, who worked as a Carpenter Helper on 30.4.2018, the petitioner made an application dated 2.4.2018 praying to be appointed to the said vacant post, on the basis of being the descendant of the land owner/donor. The name of the petitioner, along with 2 others, was forwarded to the Government for consideration by the office of the Executive Engineer, PWD (H), Mokokchung Division. However, the respondent No. 4 was approved by the Government and he was appointed against the said vacant post, even though the name of the respondent No. 4 was not amongst the list of persons forwarded for appointment by the office of the Executive Engineer, PWD (H), Mokokchung Division. Further, the respondent No. 4 was not a land owner/donor, nor did he belong to the clan, which had donated the said land. Accordingly, the approval and appointment given by Government of the respondent No. 4 is under challenge in the present writ petition. 3. The petitioner's counsel submits that it has been the practice in the State of Nagaland that the land owners are given Grade-IV appointment under the Nagaland Government in lieu of donated land in the office establishment that has been built. Accordingly, the petitioner being a descendant of the land owner/donor, the petitioner has got a right to be considered for appointment to the said post in which the respondent No. 4 has been appointed. 4. The petitioner's counsel also submits that no descendant of the land owner/donor has ever been provided employment in the office of the Executive Engineer, PWD (H), Mokokchung Division, in lieu of the donated land till date. 5. Mr. 4. The petitioner's counsel also submits that no descendant of the land owner/donor has ever been provided employment in the office of the Executive Engineer, PWD (H), Mokokchung Division, in lieu of the donated land till date. 5. Mr. V. Vero, learned Government Advocate has submitted a letter dated 1.3.2019, issued by the Engineer-in-Chief, NPWD, which states that the case of the respondent No. 4 had been reviewed. Thereafter, the Government approval letter dated 22.6.2018 and the appointment of the respondent No. 4 to the vacant post vide appointment Order dated 28.6.2018 have been cancelled vide Cancellation Order dated 17.11.2018. He accordingly submits that the present matter has become infructuous. 6. I have heard the learned counsels for the parties. 7. In the present case, there is nothing to show that the land owner/donor had entered into any oral or written agreement with the Government, which incorporated a condition to appoint the land owner/donor or his descendants to a Grade-IV post, in lieu of the land donated for construction of the office of the Executive Engineer, PWD (H), Mokokchung Division. In light of the above, this Court is of the view that no legal or fundamental right of the petitioner has been violated. Accordingly, the petitioner cannot be said to be an aggrieved person. Further, the Government of Nagaland have issued a Notification dated 5.3.2018, with regard to the manner of appointments to be made to a Grade-IV post under the Government of Nagaland on land ownership basis. This Notification dated 5.3.2018 has been taken into consideration by the Division Bench of this Court, while deciding WA No. 18(K)/2013, "Shri C. Alem Sangtam Vs. Shri N. Atovi Sema" vide Judgment & Order dated 26.6.2018. 8. The Notification dated 5.3.2018 is reproduced below:- "Government of Nagaland Land and Revenue Department Notification Dated Kohima, the 5th March, 2018 No. LR/6-181/LIT/2015: In pursuance of approval of the Cabinet vide O.M. No. CAB-2/2013 Dt. 13.12.17, the Government of Nagaland is pleased to notify the following policy with regard to appointments to Grade - IV posts under the Government of Nagaland on landownership basis. 1(a) It has been laid down vide Notification No. LR/4-3/KOH/2003 dated 26.07.2005 that no land shall be acquired free of cost and all land shall be acquired on payment of full compensation as determined by law. No further condition for employment in service or contractual works should be entertained. 1(a) It has been laid down vide Notification No. LR/4-3/KOH/2003 dated 26.07.2005 that no land shall be acquired free of cost and all land shall be acquired on payment of full compensation as determined by law. No further condition for employment in service or contractual works should be entertained. Therefore, in case any Department has entered into any agreement shall be treated as null and void. The Department concerned shall take necessary action accordingly to nullify such agreement. (b) In case the Department concerned is of the view the agreement should not be declared null and void, it shall refer it with relevant details giving justification to the Department of Land Revenue for examination and advice in consultation with P&AR and Justice and Law Departments and thereafter submit the matter for consideration and decision of the Cabinet. 2. Old cases where Administrative headquarters and Block headquarters were set up in various parts of the State on lands donated freely by individuals, villages or people of that area should not be reopened for compensation or for employment in consonance with the policy brought out vide Memorandum No. LR/2-135/76 dated 20.06.1977. 3(a) In other cases prior to 26.07.2005 and subsequent to setting up of Administrative and Block headquarters on freely donated land, where a specific written agreement exists providing for employment to the landowner, the claim for employment should be settled in terms of such agreement. 3(b) If there is any claim for providing employment as a result of oral agreement, the Department concerned shall refer the matter to the Deputy Commissioner of the District concerned who shall examine such claim carefully including whether any employment or any other facility including contract or supply order has been given in the past. Written statements from the witnesses, that is, Government officials of the concerned department and the District Administration and Village functionaries present at the time of such oral agreement should be taken by the Deputy Commissioner. The recommendation of the Deputy Commissioner should be referred with relevant documents to the Department of Land Revenue for advice in such cases by the Department concerned. 3(c) It is also clarified that it is not the policy of the Government to provide employment to the landowner in perpetuity. The recommendation of the Deputy Commissioner should be referred with relevant documents to the Department of Land Revenue for advice in such cases by the Department concerned. 3(c) It is also clarified that it is not the policy of the Government to provide employment to the landowner in perpetuity. The employment of landowner, if permitted by a verifiable and valid agreement, is limited to the person first appointed as landowner in Government service and does not entitle his descendants for further employment on his retirement from service. After the appointed landowner retires or vacates the post, the vacancy will be filled up through open advertisement in consonance with the existing policy giving equal opportunity to all applicants. Sd/- (Pankaj Kumar) IAS Chief Secretary" 9. A perusal of the above Notification dated 5.3.2018 clearly shows that unless there is an agreement providing for giving employment to a Government post, in exchange for the donated land, the question of considering a person for appointment to a Government post, on the basis of being a land owner/donor or descendants of the land owner/donor does not arise. The Division Bench in its Judgment & Order dated 26.6.2018, passed in WA No. 18(K)/2013, has also held in para 13 that no right flows to the land donors who have donated land, free from all encumbrances and where there is no provision for giving appointment on the basis of land ownership. In the present case, the petitioner's counsel has not been able to state as to when the land was donated by Terasangba of Kichu Clan of Mokokchung Village for establishment of the office of the Executive Engineer, PWD (H), Mokokchung Division. Further, as per the submission made by the petitioner's counsel, no descendant of the land owner/donor had been appointed to a Government post in the above Government office in lieu of the donated land. This clearly goes to show that the land was donated without any encumbrance and accordingly, keeping in view the decision made by the Division Bench in WA No. 18(K)/2013, this Court is also of the view that no right for appointment to a Government post flows to the petitioner. This clearly goes to show that the land was donated without any encumbrance and accordingly, keeping in view the decision made by the Division Bench in WA No. 18(K)/2013, this Court is also of the view that no right for appointment to a Government post flows to the petitioner. Further, as the original land owner/donor did not make any claim for appointment to a Government post for himself and his descendants on the basis of the donated land and keeping in view the fact that there was no agreement to that effect, no right accrues to the petitioner to be appointed on the basis of being the descendant of the land donor. Accordingly, as the petitioner cannot be said to be an aggrieved person, the petitioner has no locus standi to claim appointment on the basis of land ownership. 10. The Apex Court in the case of State of Orissa & Anr. Vs. Mamata Mohanty, reported in (2011) 3 SCC 436 , has held at paragraph 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. Even if the names of the 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 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 merely inviting names from 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. If any appointment is made merely inviting names from 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." Keeping in mind the decision of the Apex Court in State of Orissa Vs. Mamata Mohanty, reported in (2011) 3 SCC 436 , the State respondents are directed to publish an advertisement for filing up the vacant post of Carpenter Helper in the office of the Executive Engineer, PWD (H), Mokokchung Division, calling for all eligible candidates to apply for the same. Thereafter, a proper selection process should be held, wherein the petitioner and the respondent No. 4 should also be allowed to participate, if they are eligible as per the rules for appointment to the said post. 11. The State respondents are directed to publish the advertisement and complete the entire selection process within a period of 4 (four) months from the date of receipt of a certified copy of this order. 12. The writ petition is accordingly disposed of. 13. The letter dated 01.03.2019 issued by the Engineer-in-Chief, NPWD and the Cancellation Order dated 07.11.2018 are made a part of the record and marked as Annexure 'X' and' Y' respectively.