Heard Mr. N .Mozhui ,learned counsel for the petitioners and Mrs. Lucy, learned Government Advocate, Nagaland. Also Heard Mr. C.T.Jamir, learned senior counsel assisted by Mr. N Longkumar, learned counsel for the respondent No.5.

2. The instant writ petition arises out of election /selection of the respondent No.5 as Village Council Member ( in short “VCM”) of Phiro Village in Wokha District for a tenure of 2011-2015. The petitioners are the newly elected VCMs and Head Gaonbura ( in short “HGB”) and Goan Buras (G.B in short) of the said village. In the year 2008, the respondent No.5, while serving as chairman of the said Village Council along with the Secretary of Village Development Board (VDB), allegedly misappropriated/ misused an amount of Rs.1,68,962/- only meant for implementation of National Rural Employment Guarantee Scheme ( in short “NREGS”). The alleged act of misappropriation was detected by the Special Audit Committee of the Department and accordingly the Village Council headed by its seasonal Chairman deliberated over the matter and by a resolution adopted in the meeting held on 29.8.2008 removed the respondent No.5 from the office the Chairman of the Village Council. The Respondent Deputy Commissioner on being intimated took up the matter and by an order dated 22.1.2009 (Annexure-C), convicted the respondent No.5 as well as the then VDB Secretary by way of directing them to deposit the misappropriated/misused amount of Rs.15,000/- each with simple imprisonment of five months. The Respondent No.5 deposited the misappropriated amount and no further action was initiated against him. On completion of the previous tenure of the Village Council, a process for constitution of new Village Council for the period 2011-2015 was initiated. Accordingly, a new team of VCMs including the petitioners were selected/elected, wherein the respondent No.5 was also selected /elected as VCM. The names of the newly elected VCMs including the name of the respondent No.5, were forwarded to the Respondent -Deputy Commissioner on 11.4.2011 for necessary action. The petitioners simultaneously filed a written complaint dated 21.4.2011 to the Respondent-Deputy Commissioner against respondent No.5 and requested him not to forward the name of respondent No.5 to the Government for approval as the respondent No.5 was convicted under Section 16(4) of the Nagaland Village and Area Councils Act, 1978 (hereinafter in short, referred to as “VC Act”). But inspite of such complaint and request the Respondent-Deputy Commissioner forwarded the name of respondent No.5 along with the names of the petitioners and others as newly elected VCMs to the Secretary Home Department (Local Self Government),Government of Nagaland, Kohima vide letter dated 17.5.2011. The petitioners apprehend that the name of respondent No.5 would be approved along with other legally elected/selected VCMs in violation of the provision under Section 16(4) of the VC Act. They have filed the present writ petition to -

“ A. Quash and Set aside :

“(i) Letter dated 11.4.2011 submitted by the Head GB, the name of selected VCMs in so far as it relates to respondent No.5 appearing at Sl. No.18 (Annexure-E);

(ii) Letter bearing No. COUNCIL-1/2010-11 Dated 17.5.2011 forwarding the names of selected/elected VCM in so far it relates to respondent No.5 appearing at sl No.18 (Annexure-G);

B. Direct the State Respondent not to approve the name of respondent No. 5 as VCM in view of the letter dated 11.4.2011 Annexure -E) and 17/5/2011 (Annexure-G) “

3. Mr. Mozhui, learned counsel for the petitioners referring to provision under Section 16(4) of the VC Act submits that respondent No.5 has become disqualified to hold the post of VCM for a period of five years or such less period as the State Government may determine inasmuch as , he has been convicted for misappropriation and misuse of Village Council fund. As to how the respondent No.5 has been convicted , he has taken me through order da