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2019 DIGILAW 332 (GAU)

Toingam Konyak v. State of Nagaland

2019-03-11

MICHAEL ZOTHANKHUMA

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JUDGMENT : Michael Zothankhuma, J. 1. Heard Mr. Taka Masa, learned senior counsel for the petitioner. Also heard Mr. V. Zhimomi, learned Government Advocate appearing for the respondent Nos. 1 to 3 and Mr. C.T. Jamir, learned senior counsel appearing for the respondent No. 4. 2. The petitioner has prayed for setting aside the impugned letter dated 28.06.2016, issued by the Under Secretary to the Government of Nagaland, Art and Culture Department, letter dated 15.07.2016, issued by the Deputy Secretary to the Government of Nagaland, Art and Culture Department and the impugned order dated 21.07.2016 appointing the respondent No. 4 to the post of Sweeper in the District Cultural Office, Mon. The petitioner is claiming appointment to the post of Sweeper on the ground that he belongs to the family of the land owner/donor, while the respondent No. 4 does not belong to the family of the land owner/donor. 3. The petitioner's counsel submits that the State of Nagaland entered into an agreement with Chi and Mon villagers for establishment of Mon District Headquarters on 21.02.1964. Though there was no provision in the agreement of 1964, which required the State respondents to appoint land owners to Grade-IV post in the Government Departments of Mon District Headquarters, the right of the petitioner to be appointed to the post was recognized vide the order dated 30.05.2011, passed by this Court in W.P.(C) No. 105(K)/2011. 4. The petitioner's counsel submits that subsequent to the order dated 30.05.2011 passed in W.P.(C) No. 105(K)/2011, the representative of Mon and Chi villagers executed a review agreement of the agreement made in 1964, wherein the Deputy Commissioner, Mon represented the Government of Nagaland. The petitioner's counsel submits that in the review agreement dated 25.2.2015, the parties agreed that preference should be given to Chi and Mon villagers for appointment to Grade-IV posts in Government Department felling under Mon District Headquarters. He also submits that though Mon and Chi villagers had donated 744.558 acres of land for establishment of Mon District Headquarters, the State Government did not implement the agreement of 1964, inasmuch as, the percentage of tax realized as house or business taxes were not given to the villagers of Mon and Chi. Due to the above reason, the review agreement dated 25.02.2015 was executed. Due to the above reason, the review agreement dated 25.02.2015 was executed. He submits that in pursuance to the review agreement dated 25.02.2015, the petitioner has to be considered for appointment to the post of Sweeper under the establishment of District Cultural Office Mon, as per his entitlement and set aside the appointment order of the respondent No. 4. He also submits that there was no advertisement or selection process made by the State respondents prior to appointment of the respondent No. 4. 5. Mr. V. Zhimomi, learned Government Advocate submits that Mon and Chi villagers had donated land freely for establishment of the Mon District Headquarters. He accordingly submits that as the land was freely donated, the petitioner has no right to make any claim beyond the conditions laid down in the agreement of 1964. As the question of giving preference to Chi and Mon villagers for appointment to Government posts was not a part of the 1964 agreement, the petitioner has no right to claim the post of the respondent No. 4. He also submits that as the review agreement dated 25.2.2015 was made in violation of the Notifications dated 26.7.2005 and 5.3.2018, the said review agreement could not be said to be valid and binding agreement. He accordingly submits that as there was no right of the petitioner to make a claim for being given preference in respect of appointment to a Grade-IV post under the 1964 agreement, the present writ petition being devoid of merit should be dismissed. 6. Mr. C.T. Jamir, learned senior counsel appearing for the respondent No. 4 submits that as the Deputy Commissioner, Mon, who had executed the review agreement dated 25.02.2015 has not been made a party in the writ petition, the writ petition is liable to be dismissed for non-joinder of necessary party. He also submits that the Addl. Deputy Commissioner, Mon, who had executed the earlier Agreement dated 21.02.1964 has also not been made a party in the writ petition. He submits that the State Government had issued a Notification dated 26.07.2005, wherein it was laid down that in respect of acquisition of land free of cost, no condition for employment in service or contractual work should be entertained. He submits that the State Government had issued a Notification dated 26.07.2005, wherein it was laid down that in respect of acquisition of land free of cost, no condition for employment in service or contractual work should be entertained. The review agreement having being made on 25.2.2015, i.e., subsequent to the Government Notification dated 26.7.2005, the subsequent review agreement was illegal and not in conformity with the Government Notification dated 26.7.2005. He also submits that the State Government has not approved the Review Agreement dated 25.2.2015 and that the same was not made with the prior permission of the State Government. 7. I have heard the counsels for the parties. 8. With regard to the contention of the private respondent's counsel that the writ petition should be dismissed for non-joinder of necessary party, as the Deputy Commissioner, Mon who executed the Review Agreement dated 25.02.2015 is not a party in this writ petition, this Court does not find the said submission to be tenable, in view of the fact that it is not disputed by the parties herein that the Review Agreement dated 25.02.2015 had been signed by the Deputy Commissioner, Mon. Further, it is also an admitted fact that the earlier Agreement dated 21.02.1964 had been executed by the then Addl. Deputy Commissioner, Mon. 9. The 1964 agreement executed between the Additional Deputy Commissioner, Mon, representing the State Government on one side and the Chi and Mon villagers on the other side is reproduced below:- "Agreement By the common consent of the Angs and elders of Chui and Mon and the Additional Deputy Commissioner, Monb the following agreement has been drawn up for the boundary other particulars of Mon Townships. 1. The boundary lines of the Mon Town shall be as follows:- (a) North:- From the Sonari-Mon Motorable road boundary follows the Thechen river to a point roughly two furlongs and then follows the old track that is the Techa river in the East On the right hand side while coming from Sonari to Mon and from the motorable road the boundary line runs in the Nulla known as Santhem river. (b) East:- Thecha river. (c) South:- River Thenak and river the chak and following up a nulla and cross at the Dhapong saddle in the Block area and then follows a small nulla that the river thecha at the south of Mon-Champang road. (b) East:- Thecha river. (c) South:- River Thenak and river the chak and following up a nulla and cross at the Dhapong saddle in the Block area and then follows a small nulla that the river thecha at the south of Mon-Champang road. (d) West:- From Santhem River in the Northwest boundary follows up a small nulla uo to Changmolong saddle and then enters Themko river of Naisnatonger meeting Mon-Wakening Road and then follows the River meeting River Thenak. 2. The Angs of Chui and Mon with all the village representatives assured that no compensation for the land shall be required. 3. The land within the boundary is given to the Govt. freely by the Government. 4. For all practical purpose the Government shall the rights of ownership of the land within the town boundary for any Government purpose. 5. The Mon and Chui people are deprived of disposing of any portion of the land or its natural resources within the town area to any individual or group of individuals. 6. Chui and Mon shall enjoy a certain percentage of tax realized as house or business taxes from private persons residing within the town boundary. 7. These taxes shall be realized by the office and the amount of which shall be fixed by the office from time to time accordingly to necessity arises. 8. The percentage of Mon and Chi shall be fixed by this office in due consultation with the two villages but not over 50% and not less than 30% of the taxes realized. 9. The allotment of sites and giving accommodation to individual private persons within the town area shall remain at the discretion of the Government. 10. If Government so desires this agreement could be reviewed after 25 (twenty five) years". 10. The original agreement of 1964 states that the land had been given to the Government by the villagers of Chi & Mon villagers freely and that no compensation for the land was to be paid. There is nothing in the said agreement stipulating a condition that Chi & Mon villagers would be given preferential treatment for appointment to Grade-IV post in Government departments in Mon District Headquarters. Thus, this Court finds that the petitioner has got no right to claim preferential treatment for appointment to a Grade-IV post on the basis of the 1964 agreement. 11. Thus, this Court finds that the petitioner has got no right to claim preferential treatment for appointment to a Grade-IV post on the basis of the 1964 agreement. 11. The review agreement dated 25.2.2015 executed between the Deputy Commissioner, Mon on one side and the villagers of Mon and Chi on the other side are reproduced below:- "Memorandum of Understanding in respect of review of the 1964 Agreement. As per the sub-clause 6 of the Agreement of 1964 between the Government of Nagaland and "Chi & Mon Village, Chi & Mon village shall enjoy a certain percentage of taxes realized as house or business taxes from private persons residing within the town boundary". However, the Government was unable to implement the said agreement. Therefore, by the common consent of the Anghs, GBs, Elders of Chi & Mon Village with the District Administration headed by the Deputy Commissioner of Mon, a thorough review of the 1964 Agreement was done on this day, the 25th of February, 2015. The reviewed points as having agreed upon by both parties are enshrined as under; 1. Through the instrument of this review agreement, clause 6, 7 & 8 of the 1964 Agreement made on behalf of the Government of Nagaland with Chi & Mon village is hereby deleted. 2. Preference shall be given to Chi & Mon Village for appointment of Grade-IV staffs to the Government Departments falling under Mon Hq only. 3. There shall be a nominee each from Chi & Mon Village as members in Mon Town Council (MTC). 4. There shall be a member each from Chi & Mon village as members in the District Planning & Development Board, Mon. 5. A site/land in Mon Town is allotted for construction of Chi & Mon Land Owners Association Office." 12. The review agreement dated 25.2.2015 states that preference shall be given to Chi & Mon villagers for appointment to Grade-IV post in Government departments falling under Mon Headquarters. This Court is of the view that this review agreement dated 25.02.2015 cannot be binding upon the State Government, unless the State Government approves the same. There is nothing in the records to show that the review agreement dated 25.02.2015 had been executed by the Deputy Commissioner, Mon with the prior approval of the State Government or that the Deputy Commissioner, Mon had signed the review agreement on behalf of the State Government. There is nothing in the records to show that the review agreement dated 25.02.2015 had been executed by the Deputy Commissioner, Mon with the prior approval of the State Government or that the Deputy Commissioner, Mon had signed the review agreement on behalf of the State Government. Nothing has been produced, which would show that the Government desired that the Agreement dated 21.02.1964 should be reviewed, as per Clause 10 of the Agreement dated 21.02.1964. 13. Further, the notification dated 26.07.2005 issued by the Government of Nagaland states that in respect of acquisition of land free of cost, no further condition for employment in service or contractual works should be entertained. The review agreement having been made on 25.02.2015, i.e., subsequent to the notification dated 26.07.2005, this Court is of the view that the condition for giving preference to Chi & Mon villagers for appointment to Grade-IV posts was not in conformity with the Policy Decision of the Government as reflected in the notification dated 26.07.2005. The Government being bound to adhere to the standard/guidelines it has professed and laid down in the Notification dated 26.07.2005, the Deputy Commissioner, Mon could not have executed the Review Agreement dated 25.02.2015 in violation of the conditions laid down in the Notification dated 26.07.2005. Further, on perusal of the Order dated 30.05.2011 passed in WP(C) No. 105(K)/2011, this Court finds that no right for appointment or preferential treatment for appointment to a Grade-IV post has been recognized by this Court in respect of Chi & Mon villagers. The agreement reflected in the above Order dated 30.05.2011 can relate only to the 1964 agreement, wherein there is no clause for giving preferential treatment to Chi & Mon villagers for appointment to Grade-IV post. This Court, in the order dated 30/5/2011 passed in W.P.(C) No. 105(K)/2011, has held as follows:- "From the submissions of the learned counsel for the parties, I find that there is no dispute on the entitlement of the land owners to appointment in the Grade-IV post. The basis of claim is to be supported by certificate issued by the Village Council Chairman and the Agreement signed between the district administration and the land owner. Once it would be found that the petitioner donate/provided land for public purpose and an agreement was signed, accordingly he/she must get the employment opportunity. The basis of claim is to be supported by certificate issued by the Village Council Chairman and the Agreement signed between the district administration and the land owner. Once it would be found that the petitioner donate/provided land for public purpose and an agreement was signed, accordingly he/she must get the employment opportunity. In view of the above, as agreed upon by the learned counsel for the parties, this writ petition is disposed of at the motion stage itself directing the Deputy Commissioner, Mon District to cause an on the spot enquiry through the SDO (C) Mon, Headquarter and obtain a report within a period of 30 days from the date of receipt of the certified copy of this order and he shall submit a report to the Principal Director, Health and Family Welfare Department (Respondent No. 2) who shall take appropriate decision and pass necessary order on the basis of the said report. It is needless to say that there shall be no appointment to the post of Medical Attendant in question till final decision is taken by the respondent No. 2 on the basis of the report to be submitted by the Deputy Commissioner." This Court accordingly finds that the Order dated 30.05.2011 passed in WP(C) No. 105(K)11, had been passed on the belief that an agreement had been signed between the parties, whereby land had been donated and in lieu of the same, employment opportunity was to be given to the land owner/donor. However in reality, there was no such condition for giving employment opportunity to the land owner/donor in the Agreement dated 21.02.1964 executed between the State Government and Chi & Mon villagers, which is prior to the Order dated 30.05.2011. Further, as the petitioner has not been able to show that the review agreement dated 25.02.2015 was made with the approval of the State Government, this Court finds that the review agreement dated 25.02.2015 cannot be said to be a valid agreement or an enforceable agreement, for giving preference to Chi & Mon villagers for appointment to Grade-IV post in various Government departments falling under Mon District Headquarters. 14. In light of the above reasons, this Court finds that the petitioner has got no right to claim appointment to the Grade-IV post on the basis of him being a land owner, which has been filled up by the appointment of the respondent No. 4. 14. In light of the above reasons, this Court finds that the petitioner has got no right to claim appointment to the Grade-IV post on the basis of him being a land owner, which has been filled up by the appointment of the respondent No. 4. It should also be kept in mind that the agreement of 1964 has served its purpose and no party had made any claim with regard to the agreement for more than 50 years. 15. With regard to the petitioner's counsel's contention that no selection process was undertaken by the State respondents, prior to the appointment of the respondent No. 4, this Court takes recourse to the law laid down by the Apex Court, which forbids appointments to vacant post without their being any advertisement issued and without their being any selection process. In this regard, para 35 & 36 of the Judgment of the Apex Court in the case of State of Orissa & Anr. Vs. Mamata Mohanty, reported in (2011) 3 SCC 436 is reproduced below:- "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." 16. In view of the law laid down by the Apex Court, as stated above, it would not be proper for this Court to close its eyes to the alleged illegality committed by the State respondents in appointing the respondent No. 4 without issuance of any advertisement and without any selection process having being undertaken. The submission made by the petitioner's counsel in this regard has not been controverted by the counsels for the respondents. Accordingly, in view of the above, the Director, Art & Culture Department, Nagaland is directed to initiate a fresh selection process for appointment, for the post of Sweeper, by publishing an advertisement for the said post, which can be applied for by all eligible persons, including the petitioner and the respondent No. 4, if eligible. The issuance of an advertisement for filling up the post held by the respondent No. 4 and the selection process should be completed within a period of 4 (four) months from the date of receipt of a certified copy of this order. Consequently, the appointment Order dated 21.7.2016 appointing the respondent No. 4 as Sweeper and any regularisation/further orders are hereby set aside. However, till the selection is made to the post of Sweeper as per the above directions and within the time period specified above, the State respondents may allow the respondent No. 4 to continue in the said post of Sweeper on a temporary basis, which in any event shall not be for more than 4 (four) months from the date of receipt of a certified copy of this order. 17. The writ petition is accordingly disposed of.