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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MICHAEL ZOTHANKHUMA, J.
Nipa Kumar Chakma and 2 Ors – Appellant
Versus
CADC, r/b Chief Executive Member and 33 Ors – Respondents
WP(C) 43 of 2020
Decided on : 15-09-2021
Constitution of India, 1950 - Article 14 & 16 - Chakma Autonomous District Council (Constitution, Conduct of Business etc) Rules, 2002 - Rule 28 and 28 (2)(g) - Chakma Autonomous District Council (Constitution, Conduct of Business etc)(Amendment) Rules, 2012 - Recruitment Rules, 1992 - Voluntary Retirement Scheme - Notification - Employee of Chakma Autonomous District Council - Whether CADC, i.e. respondent Nos. 1 & 2 could have considered and appointed only nominees of retiring employees of CADC who opted for VRS, in terms of Notification and Order issued by respondent No. 1, this Court is of view that said 2 (two) documents should be reproduced for a better understanding of issue - Impugned Notification a Voluntary Retirement Scheme had been made for employees of CADC who had a minimum of 3 years of service for reaching superannuation pension. If employee of Chakma Autonomous District Council (CADC) opts to go on voluntary retirement, a family member nominated by employee who opts for Voluntary Retirement Scheme (VRS) could be considered for appointment to a vacant equivalent post held by employee who went on voluntary retirement. Thus, person nominated effectively replaces the person who opts for VRS.
Finding of the Court :
No person can be appointed even on a temporary or adhoc basis without inviting applications from all eligible candidates and any appointment made in violation of the same would violate the mandate of Article 14 & 16 of Constitution - Power given to CADC to appoint persons nominated by retiring Government officials, who have opted for Voluntary Retirement Scheme, without giving any opportunity to other eligible candidates to compete for said posts, may be an internal policy matter, Court finds same to be arbitrary - No advertisements having been issued to enable candidates from open market to participate in selection process for the specific posts to which private respondents were appointed and appointment of private respondents being done in violation of 1992 Rules, the appointment orders of all private respondents are hereby set aside. impugned Notification and Order are also set aside - Appointments of the respondent Nos. 3 to 33, which had been made without any advertisement for said posts in question are arbitrary and not sustainable in law. Accordingly, they would have to be set aside.
Result: Writ petition allowed
JUDGMENT :
Heard Mr. A.K. Rokhum, the learned counsel for the petitioners and Mr. Lalchhanliana Khiangte for the respondent Nos. 1 to 33.
2. The respondent No. 1 is the Chakma Autonomous District Council (CADC in short) constituted and governed by the 6th Schedule to the Constitution. The respondent No. 2 is the Executive Secretary, Chakma Autonomous District Council, Kamalanagar, Lawngtlai District, Lawngtlai. The respondent Nos. 3 to 33 are the private respondents, who have been appointed to Group C & D posts in pursuance to the impugned Notification dated 24.10.2019 and the Order dated 26.11.2019, without the respondent Nos. 1 & 2 issuing any advertisements for filling up the vacant sanctioned posts.
3. Mr. A.K. Rokhum, the learned counsel for the petitioners submits that the impugned Notification No. 12032/41/2017-2018 (CADC)(G) dated 24th October, 2019 issued by the respondent No. 1 should be set aside, inasmuch as, the same provides that the State respondent Nos. 1 & 2 shall appoint only those persons to vacant sanctioned posts under the CADC, who have been nominated by employees of the Chakma Autonomous District Council (CADC in short) and who have availed the Voluntary Retirement Scheme, thereby excluding consideration of candidates from the open market. He submits that as per the impugned Notification dated 24.10.2019, a Voluntary Retirement Scheme had been made for the employees of the CADC who had a minimum of 3 years of service for reaching superannuation pension. If the employee of the Chakma Autonomous District Council (CADC) opts to go on voluntary retirement, a family member nominated by the employee who opts for the Voluntary Retirement Scheme (VRS in short) could be considered for appointment to a vacant equivalent post held by the employee who went on voluntary retirement. Thus, the person nominated effectively replaces the person who opts for the VRS.
4. The petitioners’ counsel further submits that in terms of the Notification dated 16.08.2016, issued by the Government of Mizoram, District Council & Minority Affairs Department, recruitment and filling up of all categories of post under the CADC, required the respondent Nos. 1 & 2 to obtain the concurrence and prior approval of the Governor of Mizoram. However, as no prior concurrence or prior approval of the Governor had been obtained by the respondent Nos. 1 & 2, prior to appointing the respondent Nos. 3 to 33 to vacant sanctioned posts under the CADC, in terms of the impugned Notification dated 24.10.2019, the appointments of the private respondent Nos. 3 to 33 were invalid/void.
5. The learned counsel for the petitioners also submits that as per paragraph No. 20 BB of the 6th Schedule to the Constitution, the CADC was required to obtain the approval of the Governor, so that the impugned Notification dated 24.10.2019 could come into force. In this respect, the learned counsel has referred to Rule 28 of the Chakma Autonomous District Council (Constitution, Conduct of Business etc) Rules, 2002, hereinafter referred to as the “2002 Rules” and the Chakma Autonomous District Council (Constitution, Conduct of Business etc)(Amendment) Rules, 2012, hereinafter referred to as the “2012 Amendment Rules”.
6. The learned counsel for the petitioner submits that the appointment of the private respondents to vacant sanctioned post in terms of the Notification dated 24.10.2019 is in violation of Article 16 and in support of his submission, he has relied upon the decision of the Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi (3) & Ors., reported in (2006) 4 SCC 1 and in the case of Principal, Mehar Chand Polytechnic & Anr. Vs. Anu Lamba & Ors., reported in (2006) 7 SCC 161.
He accordingly prays that the appointment orders of the respondent Nos. 3 to 33 to vacant sanctioned posts under the CADC should be set aside.
7. Mr. Lalchhanliana Khiangte, learned
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