Gauhati High Court - Kohima
Shri Avituo Albert Mere And 13 Ors vs State Of Nagaland And 34 Ors on 6 March, 2026
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GAHC020005272024 2026:GAU-NL:99
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
KOHIMA BENCH
Case No. : WP(C)/194/2024
SHRI AVITUO ALBERT MERE AND 13 ORS
S/O SHRI KRUZOLIE MERE
R/O P KHEL, KOHIMA VILLAGE
KOHIMA NAGALAND
2: SMTI. NEIMENUO NELLY
D/O KHRIEVITUO MERE
R/O P KHEL
KOHIMA VILLAGE
KOHIMA NAGALAND
3: SHRI DZIESEVOTUO MERE
S/O KESUOLEHIE MERE
R/O P KHEL
KOHIMA VILLAGE
KOHIMA NAGALAND
4: SHRI MENGUZELIE RAME
S/O NEIBA-O RAME
R/O P KHEL
KOHIMA VILLAGE
KOHIMA NAGALAND
5: SHRI KEDUONEITUO SOTE
S/O LT. VILASIELIE SOTE
R/O P KHEL
KOHIMA VILLAGE
KOHIMA NAGALAND
6: SHRI RUVUOZELHOU LUCIAN SOTE
S/O KEDUONEIZO SOTE
R/O P KHEL
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KOHIMA VILLAGE
KOHIMA NAGALAND
7: SHRI KHRIEZOTOULIE MERE
S/O KETOULHOUVI MERE
R/O P KHEL
KOHIMA VILLAGE
KOHIMA NAGALAND
8: SHRI RUSOKHRIELIE MERE
S/O THALHOU MERE
R/O P KHEL
KOHIMA VILLAGE
KOHIMA NAGALAND
9: SHRI KENEISETUO BERNEDID
S/O LT. KEDUOPIELIE PAUL
R/O P KHEL
KOHIMA VILLAGE
KOHIMA NAGALAND
10: SHRI MENGUKHRIEZO METHODIUS RAME
S/O MESELHOU RAME
R/O P KHEL
KOHIMA VILLAGE
KOHIMA NAGALAND
11: SMTI. DZIESEVINUO ROSA
D/O MEDOKHRIELIE SOTE
R/O P KHEL
KOHIMA VILLAGE
KOHIMA NAGALAND
12: SHRI KEZHAKHRIETUO
S/O VIZOVOLIE MERE
R/O P KHEL
KOHIMA VILLAGE
KOHIMA NAGALAND
13: SHRI KEVISILIE SOTE
S/O APFHE-O SOTE
R/O P KHEL
KOHIMA VILLAGE
KOHIMA NAGALAND
14: SMTI KEVITSEINUO CELESTINA SOTE
D/O SUOSAHIE GREGORY SOTE
R/O P KHEL
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KOHIMA VILLAGE
KOHIMA NAGALAN
VERSUS
STATE OF NAGALAND AND 34 ORS
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF
NAGALAND
NAGALAND KOHIMA
2:THE PRINCIPAL SECRETARY TO THE CHIEF MINISTER
NAGALAND KOHIMA AND CHAIRMAN
GOVERNING COUNCIL
NIMSR
KOHIMA NAGALAND
3:THE COMMISSIONER AND SECRETARY
HEALTH AND FAMILY WELFARE
NAGALAND KOHIMA AND CHAIRMAN
EXECUTIVE
COMMITTE
NIMSR
KOHIMA NAGALAND
4:THE DIRECTOR-CUM-DEAN
NIMSR
KOHIMA NAGALAND
5:SHRI PENTUN KONYAK
S/O SHRI MENNEI KONYAK
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
6:SHRI LEIRONG KONYAK
S/O SHRI AJEI KONYAK
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
7:SMTI. PHAMSA KONYAK
D/O SHRI ANYAK KONYAK
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
8:SMTI. NAOHI BECHAM
D/O SHRI NAKLENM BECHAM
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MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
9:SMTI. NGUNCHAI KONYAK
D/O LT. TAMANG KONYAK
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
10:SHRI SHANGHAL
S/O SHRI NOKHUM KONYAK
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
11:SHRI PHANGHI KONYAK
S/O SHRI ZOTING KONYAK
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
12:SMTI LHOULANEINUO TAOTSU
D/O SHRI ABOU YAOTSU
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
13:SMTI KECHANGUNUO RIO
D/O SHRI ZHAHELIE RIO
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
14:SMTI RUOKUOZONUO HUOZHA
D/O SHRI KEVIZETUO HUOZHA
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
15:SMTI VIKUONUO KEDITSU
D/O SHRI NEILAO KEDITSU
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
16:SHRI KALEB METRHA
D/O SHRI KHRIEHULIE METRHA
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MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
17:SHRI SENTITOSHI
S/O SHRI LIMAWATI
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
18:SHRI IMTIYANGER
S/O SHRI SOSANGTEMJEN
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
19:SHRI KAMDONG LAM
S/O SHRI PAIUE LAM
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
20:SMTI SHAYHUNLE APON
D/O SHRI PHAKIA APON
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
21:SMTI TOLIKA CHOPI
D/O SHRI KIEVI CHOPHI
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
22:SMTI. TIANARO PONGEN
D/O SHRI IMTIRAMOK
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
23:SHRI LUMDEBA SANGTAM
SHRI YANGKHUMSE SANGTAM
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
24:SMTI SENTIKOKLA
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D/O SHRI TINUKIMZUK
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
25:SMTI. TSHEWUZOU KENYE
D/O SHRI NEIWEZO KENYE
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
26:SMTI BEZO CHIRHAH
S/O SHRI TSHELHI CHIRHAH
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
27:SHRI TOKITO ACHUMI
S/O SHRI HEKISHE ACHUMI
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
28:SHRI HOSHIKA ACHUMI
S/O SHRI KHUIVI
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
29:SHRI VILOTO YEPTHO
S/O SHRI HOKHEYI YEPTHO
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
30:SHRI VIKATO KIBA
S/O SHRI VISHITO KIBA
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
31:SMTI VIZA N SUMI
D/O SHRI NIKI SUMI
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
32:SHRI S. TEILEI KONYAK
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S/O LT SHANGKAM KONYAK
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
33:SHRI RAOPHA KONYAK
S/O SHRI MENNEI KONYAK
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
34:SHRI SHNPHA KONYAK
S/O SHRI KHAMHI KONYAK
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAND
35:SHRI VAPHIZO RUTSA
S/O SHRI NEISAKHOTUO RUTSA
MULTI TASKING STAFF (MTS)
NIMSR
KOHIMA NAGALAN
Advocate for the Petitioners : Moa Jamir; M Jemu; Akhrieu Chusi;
Asenla Longkumer; M Solo; Manheih
Konyak; Thejanuo Metha; T. Metsieo;
Shisa Jamir
Advocate for the Respondents : Govt Adv; Philip; Lorin Nenli Kez (R/N 5
to 8 & 10 to 35); Benison V Shohe; Berta
Tep; Keneisenuo Rutsa
Linked Case : WP(C)/312/2024
SHRI DZIESEVITUO MERE AND 2 ORS
S/O SUOLEHIE MERE
R/O P. KHEL KOHIMA VILLAGE
NAGALAND
2: SHRI AVITUO ALBERT MERE
S/O SHRI KIKRUZOLIE MERE
R/O P. KHEL KOHIMA VILLAGE
NAGALAND
3: SHRI KEDUONEITUO SOTE
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S/O LT VILASIELIE SOTE
R/O P. KHEL KOHIMA VILLAGE
NAGALAND
VERSUS
STATE OF NAGALAND AND 26 ORS
REPRESENTED BY THE CHIEF SECRETARY
GOVT. OF NAGALAND
2:THE PRINCIPAL SECRETARY
TO THE CHIEF MINISTER NAGALAND KOHIMA AND CHAIRMAN
GOVERNING COUNCIL
NIMSR NAGALAND KOHIMA
3:THE COMMISSIONER AND SECRETARY
HEALTH AND FAMILY WELFARE
NAGALAND KOHIMA AND CHAIRMAN
EXECUTIVE COMMITTEE
NIMSR
KOHIMA NAGALAND
4:THE DIRECTOR CUM DEAN
NIMSR
KOHIMA NAGALAND
5:SHRI TSENWANG KONYAK
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
6:SHRI THRENLONG KONYAK
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
7:SHRI KHOSYON WANGSA
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
8:SHRI AKHAM KONYAK
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
9:SHRI YETWANG KONYAK
MULTI-TASKING STAFF
NIMSR
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NAGALAND KOHIMA
10:SHRI MANLIH KONYAK
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
11:SHRI ANGAP KONYAK
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
12:SMTI. EYEWETE AKAMI
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
13:SHRI ORENTHUNG LOTHA
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
14:NAGAHO Z
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
15:SMTI YEPETOLI AYEMI
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
16:SMTI. NYANBENI TSOPOE
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
17:SMTI I. TOHOLI
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
18:SMTI YILOBENI N EZUNG
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
19:SMTI TSHEZOTEU THOPIH
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MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
20:SHRI KENEILEZO ZUMU
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
21:SHRI MHASIZOTUO ZUMU
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
22:SHRI KENEIZOLIE SOPFU
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
23:SHRI MENUOVILIE RUTSA
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
24:SHRI MENGUZELIE PIENYU
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
25:SHRI KENEIZENYU SOTE
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
26:SHRI THEZHIEROVI O RAME
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
27:SHRI DZIESEKUOLIE MECHULHO
MULTI-TASKING STAFF
NIMSR
NAGALAND KOHIMA
------------
Advocate for petitioners : Moa Jamir; M Jemu; Akhrieu Chusi; Asenla Longkumer; M Solo; Manheih Konyak;
Thejanuo Metha; T.Metsieo; Shisa Jamir Page No.# 11/29 Advocate for respondents : L Likhase Sangtam(R-4);Hisinlo Himb(R- 5 -
27); Philip Lorin;Nenli Kez; Benison V Shohe;
Berta Tep :::BEFORE:::
HON'BLE MR. JUSTICE KARDAK ETE Date on which judgment is reserved : N/A Date of pronouncement of judgment : 06.03.2026 Whether the pronouncement is of the Operative part of the judgment : No Whether the full judgment has been Pronounced : Yes Judgment &Order (Oral) Heard Mr. Moa Jamir, learned counsel for the petitioners. Also heard Mr. N. Angami, learned Senior Government Advocate for the respondent Nos. 1 to 3; Mr. L. L. Sangtam, learned counsel for the respondent No. 4 and Mr. H. Himb, learned counsel for the respondent Nos. 5 to 8 and 10 to 35 in WP(C) No. 194 of 2024 and respondent Nos. 5 to 27 in WP(C) No. 312 of 2024. None appears for the respondent No. 9 in WP(C) No. 194 of 2024 despite service of notice.
2. By filing these writ petitions, the petitioners have assailed the appointment orders of the private respondents as Multi-Tasking Staff (MTS), vide order dated 19.12.2023 and 31.08.2024 issued by the Commissioner & Secretary to the Government of Nagaland and Chairman, Executive Committee, NIMSR, Kohima, on the ground that Page No.# 12/29 the said appointments were made in violation of the constitutional scheme of public employment, as the appointments were done without issuing any open advertisement, thereby depriving eligible candidates of an opportunity to participate in the selection process.
3. Considering that both the writ petitions involve similar questions of fact and law, same are heard analogously and are being disposed of by this common judgment and order.
4. The case of the petitioners, in brief, is that they are indigenous inhabitants of the State of Nagaland and unemployed youths possessing the requisite qualifications and are eligible to be recruited as Multi-Tasking Staff (MTS) (Grade-IV post). The petitioners are having the educational qualifications of HSSLC, Bachelor of Arts and Master of Arts (Education).
5. The Nagaland Institute of Medical Sciences & Research (hereinafter referred to as 'NIMSR') is a Society registered under Section 3 of the Societies Registration Act, 1860, as amended vide Societies Registration (Nagaland Third Amendment) Act, 2008 , having its Office at Phriebagie, Kohima. The objectives of the Society, inter alia, are to establish, manage and operate Medical College and other institutes under the Society for imparting medical education, training and research. The Society has a Governing Council and an Executive Committee. The Governing Council is headed by the Chief Minister of Nagaland, the Chairman and the Minister (Health & Family Welfare), Government of Nagaland, as the Vice-Chairman and other Government Officers as members. The Principal Secretary/Commissioner & Secretary, Health & Family Page No.# 13/29 Welfare, Government of Nagaland, functions as the Chairman of the Executive Committee. The Governing Council is the highest authority empowered to take all measures necessary for the attainment of the objectives of the Society, subject to directives issued by the State Government from time to time.
6. Upon establishment of NIMSR, the respondent authorities, vide the impugned order dated 19.12.2023 issued by the Commissioner & Secretary to the Government of Nagaland and Chairman, Executive Committee, NIMSR, Kohima, appointed as many as 31 persons to the post of Multi-Tasking Staff (MTS). Thereafter, vide order dated 31.08.2024, another 23 persons were appointed to the said post. The said appointments were made on a regular basis on a probation period of one year from the date of joining. Admittedly, no advertisement was issued inviting applications for filling up the said posts of MTS in NIMSR.
7. It is the contention of the petitioners that the appointment of the private respondents to the post of Multi-Tasking Staff (MTS) is in violation of the constitutional scheme of public employment, inasmuch as the same were made without issuing any advertisement inviting eligible candidates to participate in the selection process.
8. Mr. Moa Jamir, learned counsel for the petitioners, submits that the illegal appointments of the private respondents have resulted in eligible candidates like the present petitioners being denied the right of equal opportunity for being considered for appointment to such public posts, thereby infringing Articles 14 and 16 of the Constitution of India. The petitioners are all unemployed youths possessing the Page No.# 14/29 requisite qualifications and eligible to be recruited as MTS (Grade IV post).
9. Mr. Jamir, learned counsel submits that the respondent authorities, without providing an opportunity to all eligible unemployed youths, have appointed the private respondents on a pick-and-choose basis, through back-door entry, thereby depriving the petitioners and other similarly situated persons from participating and competing in an open selection process. He submits that any appointment made without issuing an advertisement inviting applications from eligible candidates and without holding a selection process where all eligible candidates get a fair chance to compete for public employment, violates the fundamental rights of thousands of eligible youths. Therefore, such an appointment, being dehors the rules and contrary to the constitutional scheme of public employment, is not permissible under the law. Therefore, he submits that the impugned appointment orders are liable to be set aside and the respondent authorities be directed to undertake the recruitment process afresh in accordance with the constitutional scheme of public employment by issuing a public advertisement and conduct a fair and transparent selection process.
10. In support of his submission, Mr. Moa Jamir, learned counsel for the petitioners, has placed reliance on the following judgments of the Hon'ble Supreme Court:
(i). Ajay Hasia & Ors. Vs. Khalid Mujib Sehravardi & Ors., reported in (1981) 1 SCC 722.
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(ii). Secretary, State of Karnataka and Ors. Vs. Umadevi (3) and Ors. reported in (2006) 4 SCC 1.
11. Mr. N. Angami, learned Senior Government Advocate for the respondent Nos. 1 to 3; Mr. L. L. Sangtam, learned counsel for the respondent No. 4 and Mr. H. Himb, learned counsel for the respondent Nos. 5 to 8 and 10 to 35 in WP(C) No. 194 of 2024 and respondent Nos. 5 to 27 in WP(C) No. 312 of 2024, submit that the NIMSR is a society registered under the Societies Registration Act, 1860 and the appointments of the private respondents were made on exigency of service and hence the appointments cannot be said to have been done in violation of the constitutional scheme of public employment. It is submitted by the learned counsels for the respondents that the NIMSR commenced functioning from the Session 2023-24, and there was a dire need of manpower to run and manage the newly established lone Medical College. Therefore, the appointment of the private respondents to the post of Multi-Tasking Staff (MTS) was made on exigency basis for proper and efficient management of the Medical College.
12. It is submitted that NIMSR being a registered society is governed by Memorandum of Association and its Bye-laws and the Society is empowered to frame Rules and Regulations or Bye-laws to efficiently administer and conduct the affairs of the Medical College and Institutes established and operated/administered by NIMSR, including the conduct of examinations, appointments and management of various categories of personnel under its employment, management of property and finance and to do all Page No.# 16/29 such lawful acts as are conducive or incidental to the attainment of its objectives.
13. Learned counsels for respondents submit that Section 22 of the Bye-laws deals with appointment of teaching faculty and other employees of the Institute. Section 22(b) provides that the Governing Council shall have the discretion to approve appointment of employees either on permanent, temporary, or contractual basis as required for the efficient and economical management of NIMSR. Section 22(e) provides that the Governing Council shall prescribe Rules and Regulations for regulating service conditions of all employees, including appointment, age of superannuation and promotion, keeping in view the prevailing State Government Guidelines for similar posts.
14. It is submitted that appointments of employees under NIMSR are to be made in view of the prevailing State Government Guidelines for similar posts. Under the State Government, similar posts exist and are guided by the notifications. One of such guidelines, for filling up Group-D posts in the Department, was issued by the Government of Nagaland, Personnel and Administrative Reforms Department (Administrative Reforms Branch), Kohima, through an Office Memorandum dated 03.03.2022, which provides inter alia, that the procedure of filling up Grade-IV posts in the Government has been laid down vide Office Memoranda dated 26.10.2017 and 24.03.2018, requiring that applications for recruitment to the posts should be called through open advertisement.
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15. It is submitted that certain difficulties were highlighted by various Departments, particularly with regard to the filling up of Group-D posts. In many cases, such posts, including those of Chowkidars, Malis and Peons, are filled by landowners, on compassionate grounds, or locally at the District, Sub-Division or Village Level. The matter was considered by the Cabinet in its meetings held on 09.02.2022 and 22.02.2022. In order to remove such difficulties, it was directed that the requirement of advertisement may be dispensed with wherever such difficulties are faced by a Department, provided that a fair and transparent eligibility criteria and process is followed and in all such cases approval of the Government is obtained. Pursuant thereto, by the Office Memorandum dated 03.03.2022, the requirement of advertisement in respect of the category of posts in question was dispensed with, provided that approval of the Government is obtained. The appointment orders of the private respondents have been made after the approval of the competent authority.
16. It is submitted that the appointment orders of the private respondents are not regular in nature but are made under certain terms and conditions. Further, Schedule-1 of the Bye-laws of NIMSR provides the Delegation of Powers and at Schedule-1(23) it is provided that for all engagements or appointments other than on a regular basis, the Director of the Institute shall have full power in respect of Group C and D, subject to approval of the Executive Council. When any appointment is made in accordance with the Office Memorandum of the State Government, which is to be Page No.# 18/29 followed while making such appointments and also when the appointment is made by an authority competent, such appointment is not in violation of the constitutional scheme of public employment. It is further submitted that since the appointments have been made on exigency of service by the authority competent under clause 22(b) of the Bye-Laws of the registered Society, same may not be amenable to writ jurisdiction as the NIMSR is a registered society governed by its Bye-Laws.
17. I have considered the submissions of the learned counsels for the parties and also perused the materials available on record.
18. The respondent authorities, on establishment of NIMSR, have, vide the impugned orders dated 19.12.2023 and 31.08.2024, appointed the private respondents as MTS providing Scale of Pay with Grade Pay and all other applicable allowances for a probation period of one year from the date of joining. The tenor of the appointment orders indicates that the appointments are on a regular basis. It is an undisputed position that the impugned appointment orders were made without issuing any advertisement by providing an opportunity to all the eligible candidates to participate in the selection process.
19. Although the appointment orders have been issued by the Commissioner & Secretary of the Government of Nagaland & Chairman, Executive Committee, NIMSR, Kohima, same does not indicate under what authority and provisions, appointments were made. However, considering the submissions of the learned counsel for the respondents, it appears that NIMSR has Memorandum of Page No.# 19/29 Association, which inter alia, provides that the method of recruitment and the conditions of service of the Officers and Staff of the Society and the Medical College are to be in accordance with the State Government and MCI/National Medical Commission (NMC) Regulations, Bye-laws and any Rules and Regulations that may be framed.
20. As per Clause 22 of the Bye-Laws of NIMSR regarding the appointment of teaching faculty and other employees of the Institute, the Governing Council shall have the discretion to approve appointments of employees on a permanent, temporary, or contractual basis, as required for the efficient and economical management of the Institute. Schedule-I of the Bye-Laws lays down the Delegation of Powers, which inter alia, states that for all engagements or appointments other than on a regular basis, full power in respect of Group C and D posts rests with the Director of the Institute, subject to the approval of the Executive Council. The powers and functions of the Executive Committee, indicate that the Committee has the authority to recommend the creation and abolition of posts to the Governing Council as may be necessary and to ensure that appointments are made in accordance with the Rules and Regulations of the Society. As per the Bye-Laws, it is true that the Governing Council has the discretion to approve appointments of employees on a permanent, temporary, or contractual basis, as required for the efficient and economical management of the Institute. However, nothing has been brought on record to show that the appointments were made following the due process of selection, Page No.# 20/29 except for the invocation of Clause 22(b), which is a provision to grant approval for such appointments subject to due process. The power to approve appointment would not mean that no selection process is required to be followed.
21. No doubt, Clause 22(b) empowers the Governing Council to approve appointments, but it does not indicate the manner or method of the recruitment process. Any appointment to a public post must be preceded by a minimum selection process; otherwise, it would violate the well-recognized constitutional scheme of public employment. It appears that the appointments were made without following the due process of selection, resulting in a violation of the constitutional scheme of public employment, as all eligible persons, including the petitioners, were not provided an opportunity to participate or compete for the post of MTS, as required under Article 14 read with Article 16 of the Constitution of India.
22. The NIMSR is a Society with its own Bye-laws, which has been established for the purpose of imparting medical education and research and serves a public purpose. It is under deep and pervasive control of the State, which is clearly indicated in the composition of the Governing Council, which includes the Chief Minister of Nagaland; the Minister (H&FW), Nagaland; the Chief Secretary, Government of Nagaland; Additional Chief Secretary/Principal Secretary/Commissioner & Secretary, Finance; Additional Chief Secretary/Principal Secretary/Commissioner & Secretary, Development; Principal Secretary/Commissioner & Secretary, H&FW; Principal Secretary/Commissioner & Secretary, Higher & Technical Page No.# 21/29 Education; and Principal Secretary/Commissioner & Secretary, Works & Housing, Government of Nagaland. The Executive Committee consists of the Principal Secretary/Commissioner & Secretary (H&FW), Government of Nagaland; Principal Director (H&FW), Government of Nagaland; Director, Family Welfare (H&FW), Government of Nagaland; Director, Health Services (H&FW), Government of Nagaland; Director of Medical Education (H&FW), Government of Nagaland; Director, NIMSR; Dean of the Medical College, NIMSR; Medical Superintendent, NIMSR Medical College Hospital; Registrar, NIMSR; Two Professors and Heads of Departments of the Medical College on a rotation basis; and the Head of other Institutions established under the Society. It is funded by the State and any action is required to be approved by the Government.
23. As regards the test for determining when a Corporation or Society can be considered an instrumentality or agency of the Government, the Hon'ble Supreme Court in Ramana Dayaram Shetty v. International Airport Authority of India, reported in (1979) 3 SCC 489, laid down certain tests. Though not exhaustive, these serve as indicia, indicating that if the entire share capital of the corporation is held by the Government, it suggests that the corporation may be an instrumentality or agency of the Government, particularly where the financial assistance of the State meets almost the entire expenditure of the corporation. Consideration is also given to whether the corporation enjoys a State-conferred or State- protected monopoly, and whether its functions are public in nature Page No.# 22/29 and closely related to governmental functions. If, on consideration of these factors, it is found that the corporation or society is an instrumentality or agency of the Government, it would be considered a "State" within the meaning of Article 12 of the Constitution. The Hon'ble Supreme Court in the case of Ajay Hasia (Supra), culled out the above tests and observed that they are not conclusive or clinching, but merely indicative indicia which must be used with care and caution. While stressing the necessity of a wide meaning to be placed on the expression "other authorities," it must be realized that it should not be stretched so far as to bring within its sweep every autonomous body that has some nexus with the Government. A wide enlargement of the meaning must therefore be tempered by a wise limitation, which is reproduced herein below:
"...9. The tests for determining as to when a corporation can be said to be an instrumentality or agency of Government may now be culled out from the judgment in the International Airport Authority's case (AIR 1979 SC 1628). These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression "other authorities", it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government with the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority's case as follows :
(1) One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.
(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated Page No.# 23/29 with governmental character."
(3) It may also be a relevant factorwhether the corporation enjoys monopoly status which is the State conferred or State protected.
(4) Existence of "deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.
(5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.
(6) Specifically, if a department of Govt. is transferred to a corporation, it would be a strong factor supportive of this inference" of the corporation being an instrumentality or agency of Government.
If on a consideration of these relevant factorsit is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the International Airport Authority's case, be an authority and, therefore, State within the meaning of the expression in Article 12."
24. In Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and Ors., reported in (2002) 5 SCC 111, A Constitution Bench by Majority of 5:2, after consideration of all the earlier cases including the case of Sabhajit Tewary, reported in (1975) 1 SCC 485, held that the tests to determine as formulated in Ajay Hasia (Supra) are not a rigid set of principles such that a body falling within any one of them must be considered a "State." The question in each case is whether, on the facts, the body is financially, functionally and administratively dominated by, or under the control of, the Government. Such control must be specific to that body and must be pervasive; however, mere regularity of control, whether statutory or otherwise, would not be sufficient. The case of Sabhajit Tewary (Supra) has been overruled. The relevant Page No.# 24/29 paragraph is reproduced herein under:
"...40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within anyone of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be - whether in the light of the cumulative facts as estab- lished, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State."
25. In the present case, NIMSR is a registered Society governed by its Bye-Laws, including the power to approve appointments. Nevertheless, a careful consideration of the relevant factors indicates that NIMSR would still fall within the category of "other authorities"
or an instrumentality of the State within the meaning of "State"
under Article 12 of the Constitution, as it is subject to deep and pervasive control of the State Government. Moreover, its objective of imparting medical education and conducting research involves functions of public importance that are closely related to governmental functions. Thus, same would be amenable to writ jurisdiction. Therefore, the constitutional scheme of public employment enshrined under Article 14 read with Article 16 of the Constitution must invariably be followed.
26. This Court is not oblivious to the fact that NIMSR has been newly established with the objective of imparting medical education and research in the State. It is under the deep and pervasive control of the State Government. Given its public purpose and the indispensability of manpower for the functioning of the institute, the Page No.# 25/29 authorities naturally have the power to appoint faculty and staff, even on a temporary basis. However, it would not be permissible for the respondents to make appointments haphazardly or arbitrarily, without following the due process of selection, as such actions would be contrary to the constitutional scheme of public employment.
27. As noted above, the Bye-laws clearly lays down that the Executive Committee is empowered to recommend the creation and abolition of posts to the Governing Council and to ensure that appointments are made in accordance with the Rules and Regulations, which indicates adherence to the due process of selection. The impugned appointments of private respondents by the respondent authorities therefore, appear to be not in consonance with the constitutional scheme of public employment, except for the bald submission of invoking Clause 22 and Schedule-I of the Bye Laws of NIMSR.
28. In the case of Umadevi (3)(Supra), the Hon'ble Supreme Court has held as under:
"...2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme.
3. A sovereign government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted. The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a Page No.# 26/29 family for hundred days in an year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule.
6. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See Basu's Shorter Constitution of India). Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appointment etc. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules. The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure. Normally, statutory rules are framed under the authority of law governing employment. It is recognized that no government order, notification or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the Constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed.
43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering Page No.# 27/29 the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constellational scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the by-passing of the constitutional and statutory mandates."
29. The Hon'ble Supreme Court has laid down that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of the Constitution, Page No.# 28/29 a Court would be precluded from passing an order upholding a violation of Article 14 read with Article 16 of the Constitution. Therefore, unless an appointment is made in accordance with the relevant rules and following a proper competition among eligible candidates, it cannot confer any right on the appointee.
30. There would not be any quarrel with the power of the authorities of NIMSR to appoint employees in terms of the Bye- Laws, Rules and Regulations of the Society. However, such appointments are to be made by following the due process of selection by providing opportunity to all eligible persons. As noted above, the appointments are not in accordance with law, much less following the due process of selection. Thus, the manner and method in which the respondent authorities issued the impugned orders appointing the private respondents to the post of MTS would not be permissible under the law as no semblance of a selection process is shown to have been followed.
31. In view of the discussions made hereinabove, I am of the considered view that the appointments of the private respondents are not in accordance with the constitutional scheme of public employment, as no due process of selection has been followed in their appointments. Consequently, the impugned orders dated 19.12.2023 and 31.08.2024, issued by the Commissioner & Secretary to the Government of Nagaland and Chairman, Executive Committee, NIMSR, Kohima, are hereby set aside and quashed. The respondent authorities are accordingly, directed to fill the post of MTS on a regular basis by following the due process of selection in Page No.# 29/29 accordance with the applicable Bye-Laws, Rules and Regulations of NIMSR, through public advertisement, providing an opportunity to all eligible candidates to participate in the selection process. The recruitment exercise so directed shall be completed within a period of 6 (six) months from the date of receipt of the certified copy of this order. However, in view of the objectives and functions of NIMSR being of public importance and the necessity of adequate manpower to ensure the uninterrupted and efficient functioning of the Institution, the private respondents shall be allowed to continue in their present posts until the regular selection process for filling up the post of MTS as directed hereinabove is completed.
32. The writ petitions are allowed and stand disposed of, accordingly. Cost(s) made easy.
JUDGE Comparing Assistant