Shri Sheyao Konyak Vs the State of Nagaland and 4 Ors.

Heard Mr. Wati Jamir, learned counsel for the petitioner. Also heard Mr. Mosemsa Longkumer, learned State counsel for the respondent nos. 1 to 4 as well as Mr. Hisinlo Himb, learned counsel for the respondent no. 5.

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2. By filing this writ petition, the petitioner has put to challenge the communication dated 16.08.2024 issued by the Deputy Secretary to the Government of Nagaland to the Principal Director, Directorate of Health & Family Welfare, Government of Nagaland whereby the approval of the government for appointment of one Shri. Yenso Poangba T, the respondent no. 5 herein, to the post of Medical Attendant at Tamkoang Sub Centre under the Chief Medical Officer, Mon against the vacancy caused due to the retirement of Shri C. Nokyiang Konyak on 31.05.2022 is conveyed.

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3. The case of the petitioner in brief, is that in the year 1987, the father of the petitioner had donated the land for setting up of the Tamkoang Sub Centre at Tamkoang Village under the Chief Medical Officer, Mon with an oral agreement that the Government would

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provide Grade-IV post in lieu of the donation of the land. Accordingly, the said medical sub centre was established and is functioning till date on a land measuring about 120 ft x 80 ft. The petitioner claims that none of the family members of the petitioner has availed the appointment on landownership basis till date. The father of the petitioner was appointed as Medical Attendant who had retired on 31.05.2022, but was a general appointment under general category and not on landownership basis.

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4. The petitioner after the retirement of his father has submitted an application for appointment to the resultant vacancy on landownership basis as none of the family member was appointed in any Grade-IV post, in lieu of the land donated by the family. The ownership of the aforesaid land for establishment of the medical sub centre as donated by the father of the petitioner is supported by the certificates of the Village Council and the Gaonburas who have also recommended for appointment of the petitioner.

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5. It is the contention of the petitioner that only the petitioner and one Smti. Shitse were the two candidates who have applied for the post of Medical Attendant under Tamkoang Sub Centre, Mon. Accordingly, the respondent authorities particularly the respondent no. 3 in the year 2022 had compiled and prepared the list and forwarded the same to the Chief Medical Officer for constitution of a Screening Committee for verification. The respondent authorities were required to take steps for screening their candidatures in terms of the said list prepared by the respondent no. 3, for appointment

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on landownership basis. However, in the year 2023, the name of the respondent no. 5 has been placed illegally before the District Screening Committee, who is not a land owner and whose name was not in the list. The name of the respondent no. 5 was inserted only at the behest of the recommendation made by the local MLA of his constituency, thereby illegally the Screening Committee vide letter dated 10.07.2023 recommended the name of the respondent no. 5 for appointment to the post of Medical Attendant on a post for appointment on land owner basis.

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6. Aggrieved, the father of the petitioner had filed a complaint before the respondent no. 3 clearly stating that no family members of the petitioner has been appointed on landownership basis and objected to the recommendation made by the Screening Committee in favour of the respondent no. 5 and requested to consider the case of the petitioner on the basis of land ownership. Thereafter, when no response was received, again on 22.05.2024, a representation was submitted by the petitioner, however the same was also not considered. And, vide the impugned communication dated 16.08.2024, the Deputy Secretary to the Government of Nagaland has conveyed to the Principal Director, Directorate of Health & Family Welfare, the approval of the government for appointment of the respondent no. 5 to the post of Medical Attendant at Tamkoang Sub Centre under the Chief Medical Officer, Mon. Hence, this writ petition.

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7. Mr. Wati Jamir, learned counsel for the petitioner submits that

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there is no dispute that the father of the petitioner has allowed the department of Health & Family Welfare to establish the Tamkoang Sub Centre under the Chief Medical Officer, Mon on his land. The father of the petitioner was appointed as Medical Attendant on his own merit under the general category and not on land ownership basis, who had retired on 31.05.2022. The petitioner being the son is entitled to be appointed as Medical Attendant in lieu of the land provided by his father in terms of the notification regarding appointment on land ownership basis to Grade-IV post which provides that if there is any claim for providing employment as a result of an oral agreement, the department concerned shall refer the matter to the Deputy Commissioner of the district concerned who shall examine such claim carefully and to recommend for appointment on land ownership basis.

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8. He submits that the case of the petitioner for appointment on land ownership basis is duly recommended by the concerned Village Council as well as by the District Administrative certifying that the petitioner is the genuine land owner. Therefore, the recommendation of the respondent no. 5 who is not a land owner and its impugned consequential approval by the Government is illegal inasmuch as, as per the policy of the State government, it is only the land owner who is entitled to be appointed in Grade-IV post even if the agreement is in oral.

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9. Mr. Wati Jamir, learned counsel referring to the provisions of the notification providing appointment on landownership basis submits

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that though, it is not the policy of the State government to provide employment to the land owners in perpetuity, the father of the petitioner having being appointed on his own merits on general category, there is no impediment for the State respondents to appoint the petitioner as Medical Attendant in terms of the policy of the State. Therefore, he submits that the recommendation of the District Screening Committee and the impugned consequential approval which has been conveyed by the impugned communication dated 16.08.2024 may be set aside and a direction may be issued to the respondent authorities to consider the case of the petitioner for appointment as Medical Attendant at Tamkoang Sub Centre under Chief Medical Officer, Mon on land ownership basis.

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10. Mr. M. Longkumer, learned State counsel for the respondent nos. 1 to 4 submits that the father of the petitioner has already availed the benefit of employment on land ownership basis, as the father of the petitioner was appointed on land ownership basis and served as Medical Attendant under the establishment of Tamkoang Sub Centre, Mon who has joined service on 19.05.1987 and retired on 31.05.2022, upon completion of 35 years of service. He submits that as per clause 3 (c) of the notification dated 05.03.2018, it has been clarified that it is not the policy of the Government to provide employment to the land owner 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. Therefore, the question of appointment of

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the petitioner on land ownership basis does not arise as it will be tantamount to violation of the standing policy of the State.

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11. He submits that as regards the recommendation and approval of the respondent no. 5 is concerned, the Department has processed the matter in due manner, observing all nodal formalities for employment in public service. The District Screening Committee considering the application of the 3 (three) applicants including the petitioner and the respondent no. 5 has found the respondent no. 5 to be most eligible among the 3 applicants and accordingly, recommended the name of the respondent no. 5. Thereafter, the government has approved the name of the respondent no. 5 for appointment to the post of Medical Attendant on the basis of the recommendation of the Screening Committee. He submits that since the petitioner cannot be considered for appointment on land ownership basis, as the father of the petitioner has already availed such benefit in terms of the policy of the State, the respondent authorities have fairly considered all the applications. Therefore, there is no illegality in the recommendation and approval of the Screening Committee and the Government.

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12. Mr. Hisinlo Himb, learned counsel for the respondent no. 5 while endorsing the submissions of the learned State counsel submits that a circular was issued for convening of Screening Committee. The Screening Committee considered and verified all the applications of the candidates including the petitioner and the respondent no. 5 in a fair and transparent manner. Accordingly, the

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Screening Committee having found the respondent no. 5 more suitable to be considered for appointment to the post of Medical Attendant has recommended the name of the respondent no. 5. He submits that since the father of the petitioner has already availed the appointment on land ownership basis and as the policy does not permit the appointment on perpetuity, the petitioner has no right to claim for appointment to the post of Medical Attendant and therefore, the writ petition is liable to be dismissed.

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13. I have considered the submissions of the learned counsel for the parties and also perused the materials available on record.

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14. Undisputedly, the father of the petitioner has allowed the department of Health & Family Welfare, for establishment of the Tamkoang Sub Centre under the Chief Medical Officer, Mon in the year 1987. It is also an undisputed position that the father of the petitioner was appointed as Medical Attendant in the same year, i.e., in 1987, who has joined his service on 19.05.1987 and had retired on 31.05.2022. Further, it is undisputed that the respondent no. 5 is not a land owner in respect of the land which has been donated by the father of the petitioner for establishment of the said sub centre at Tamkoang under the Chief Medical Officer, Mon.

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15. Record reveals that initially, the case of the petitioner and one Smti. Shitse was forwarded by the Principal Director, Directorate of Health & Family Welfare to the Deputy Commissioner for conducting a Screening Committee. Thereafter, the Screening Committee vide

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its minutes dated 07.07.2023 consisting of 6 (six) members namely Area Administrative Officer, Chief Medical Officer, Deputy Chief Medical Officer, Senior Medical Officer, Medical Officer and District Program Manager after screening and verification of 3 (three) candidates including the petitioner and the respondent no. 5, has recommended the name of the respondent no. 5 for appointment to the post of Medical Attendant at Tamkoang Sub Centre under Chief Medical Officer, Mon. The government on the basis of such recommendation had approved the appointment of the respondent no. 5 against the vacancy caused due to the retirement of the father of the petitioner. However, it does not indicate whether the Screening Committee has considered the cases of the candidates for consideration on land ownership basis or on general appointment.

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16. The State of Nagaland has framed a policy which has been notified vide notification dated 05.03.2018 by the Chief Secretary to the Government of Nagaland, which is extracted herein below:-

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“ “ GOVERNMENT OF NAGALAND LAND REVENUE DEPARTMENT

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NOTIFICATION

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Dated Kohima, the 5^th March, 2018

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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.

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1(a) It has been laid down vide Notification No. LR/43/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.

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1(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.

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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.

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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.

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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

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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.

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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.

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Sd/(PANKAJ KUMAR) IAS Chief Secretary”

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17. Reading of the above shows that the State has framed a policy with regard to appointment to Grade-IV posts under the Government of Nagaland on landownership basis. It shows, interalia, that 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 dated 20.06.1977. Other cases prior to 26.07.2005 and subsequent to

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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. 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. For that written statements from the witnesses, including the Government officials and the District Administration as well as 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.

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18. It clarified that the policy is not to provide employment to the landowner in perpetuity. The appointment on landownership basis shall be limited to the person first appointed as landowner and does not entitle his descendants for further employment on his retirement from service. On the retirement of such appointed landowner, the vacancy will be filled up through open advertisement in consonance with the existing policy giving equal opportunity to all applicants.

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19. Though the petitioner claims that the appointment of his father as Medical Attendant at Tamkoang Sub Centre under Chief

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Medical Officer, Mon was not on the basis of land ownership but on its own merit, it is not discernible whether the said appointment of his father was actually in accordance with the constitutional scheme of public employment or the appointment was on a general category or on landowner basis. It is also equally not discernible whether the Screening Committee or for that matter the respondent authorities have proceeded with the filling up of the said post of Medical Attendant in accordance with the relevant law or policy, as the same does not indicate that the consideration was on the basis of landowners who have freely donated the land for the government establishment. Hence, it is difficult for this Court to come to a conclusion as regards the exact nature of selection process which has been undertaken by the respondent authorities while recommending the case of the respondent no. 5 out of the 3 (three) applicants, whereas there are thousands of people standing in the queue to participate in the selection process for public employment.

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20. It is true that in the State of Nagaland, by way of State policy, if a person freely donated his land for Government establishment, he/she is entitled to be appointed on any Grade-IV post in terms of the notification dated 05.03.2018. At the same time, such appointment cannot be made on perpetuity, in other words, such appointment is limited to the person first appointed as landowner and does not entitle his descendants for further employment on retirement of such appointee. On his retirement and after the appointed landowner vacates the post, the vacancy would be filled up through open advertisement with the existing policy giving equal

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opportunity to all the applicants.

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21. In the present case, there appears to be only 3 (three) candidates out of the thousand aspirants who are waiting in the queue to participate in the selection process and such a process would be against the scheme of public employment in view of the fact that the selection does not indicate as to whether the process was undertaken in terms of the policy or a general recruitment process. If it is a general recruitment process, same would not be permissible as the consideration was only of 3 (three) candidates that too, on a mere filing of applications for appointment. If the selection process was undertaken in terms of the notification dated 05.03.2018 providing appointment to Grade-IV post to those persons who have donated the land freely for government establishment, same would also be illegal as the consideration and recommendation and its consequent approval is of a person who is admittedly not a land owner. In any case, the exercise appears to be neither of the two. Thus, such selection process cannot be allowed as the same would not be permissible for filling up of public post which would run contrary to the constitutional scheme of public employment.

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22. In view of what has been discussed herein above, I am of the considered view that the entire selection process of recommendation by the Screening Committee dated 10.07.2023 and the impugned approval vide communication dated 16.08.2024 are not sustainable, as the same are not in accordance with the constitutional scheme of

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public employment. Accordingly, the same are set aside and quashed. However, considering that neither the petitioner nor the respondents could establish that the appointment of the father of the petitioner was on landownership basis, it would be appropriate to direct the State respondents to reconsider as to whether the appointment of the father of the petitioner was on landownership basis in actuality or not. If the appointment is found to be in terms of the relevant rules, and not in terms of the notification dated 05.03.2018, the case of the eligible landowners including the petitioner may be reconsidered strictly in terms of the said notification. In the event the appointment was on the basis of landownership, the post in question be filled up by following the constitutional scheme of public employment through open advertisement, so as to provide equal opportunity to all the candidates.

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23. The writ petition stands disposed of in terms of the above.

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JUDGE

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Comparing Assistant

Shri Sheyao Konyak v. the State of Nagaland and 4 Ors.

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Shri Sheyao Konyak v. the State of Nagaland and 4 Ors.

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