PANGSANGLIBA IMCHEN Vs. STATE OF NAGALAND

JUDGEMENT

(1.) Heard Mr. C.T. Jamir, learned senior counsel for the petitioner assisted by Mr. Wati Walling, learned counsel. Heard also Ms. Lucy, learned Government Advocate for the State respondents as well as Mr. Azho learned counsel for the respondent No.4.

(2.) In this writ proceeding, the petitioner has challenged the order dated 9.5.2008, issue by the Deputy Commissioner, Mokokchung, Nagaland appointing the respondent No.4 to the post of Dobashi-II ('DB-II') against the vacancy caused on the death of one Temsujongba. The aforesaid deceased was working as Dobashi-II who died in harness leaving behind the present petitioner and other legal heirs. The petitioner is the son of the aforesaid deceased (Government Servant). He applied for appointment on compassionate ground against the post of his father. Before any consideration could be made on his prayer for compassionate appointment, the impugned appointment letter was issued to the respondent No.4.

(3.) Mr. Jamir, learned Senior counsel for the petitioner submits that the appointment of respondent No.4 is illegal, inasmuch as, the respondent No.4 was selected and his name was placed at SI. No.1 in the waiting list prepared by the Deputy Commissioner, Mokokchung, Nagaland, after conducting interview, but the respondent No.4 has been appointed against the post occurred due to death of the petitioner's father which was not advertised. According to him, advertised posts of DB-II were already filled up and respondent No.4 has been appointed against the post which was not advertised and as such, the appointment of the respondent No.4 is illegal and dehors the rule. In this regard Mr. Jamir, learned senior counsel has referred to case of State of U.P. and Others v. Rajkumar Sharma and Ors., 2006 3 SCC 330, in which it has been held amongst other that - filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights granted under articles 14 and 16 of the Constitution of India. He has further referred to case of Rakhi Ray and Ors. v. High Court of Delhi and Ors., 2010 2 SCC 637, wherein the aforesaid law has been affirmed. If the aforesaid settled position of law is to be followed, the appointing authority should go for fresh recruitment process by way of issuing new, advertisement, etc. Moreover, it is submitted that the post of DB-II is not Grade-II post in true sense inasmuch as, it carries the pay scale of Grade-Ill post. The petitioner has passed the HSLC Examination and as such, he is eligible for appointment to the post of DB-II. Mr. Jamir, learned Senior counsel also submits that the respondent No.4, although he belongs to the District of Mokokchung, he does not belong to the local area under Mangkolemba Sub-Division.