Chiangmong Khiamniungan
Introduction: In the spirited agitation that the state government’s decision to regularise the appointments of 147 contract Assistant Professors and Librarians has incited, numerous references have been made to office memorandums of the state government, constitutional provisions as well as court cases and judgments. The purpose of this piece is to explain, in as clear and simple terms as possible, the constitutional, legal, and administrative issues that are pertinent to this discussion.
Over the course of this explainer, we will find that the state government has, from the appointment of these employees to their recent regularisation, indulged in multiple layers of illegalities and breached not just its own memorandums, but also violated specific outstanding orders of the High Court, and contravened multiple High Court and Supreme Court judgments, not to mention the very elementary constitutional provision of right to equal opportunity.
Right to equal opportunity
While specific issue is the regularisation of the 147 contract employees, it is important not to forget that the general issue is public employment, i.e., employment in and by government. And this is not an issue affects only the aspirants seeking to become assistant professors, but everyone in Nagaland who has or will have an interest in government service. This would therefore include not just current aspirants but also younger students, many of whom will be aspirants in the future. It would also include parents as well as villages, communities, etc., who are concerned about the prospects of children and members. In short, it is an issue that concerns, ultimately, every single one of us even if we might personally not be eligible for or be interested in government service.
Public employment is governed by Article 16 of the Constitution which grants the fundamental right to ‘equality of opportunity in matters of public employment’. This article has been explained by the courts as a facet of the much broader fundamental ‘right to equality’ (Article 14).
Obviously, it would not be possible to completely prevent state agencies and officials from indulging in surreptitious practices which contravene prescribed rules and procedures. The human capacity to creatively bypass equitable rules when lured by monetary benefits, or moved by concerns of family, friendship, etc., cannot be underestimated.
Nevertheless, the constitutional scheme, specifically outlined in Article 16, obliges the state to, as the barest minimum, advertise vacant posts publicly so that everyone qualified and interested has the equal opportunity to apply and compete for the posts. Any appointment to a public post, whether contract or regular, made without open advertisement will violate this fundamental right to equality of opportunity. To quote the Supreme Court, which laid down a number of principles to be followed in the matter of public appointments in M.P. State Cooperative Bank vs Nanuram Yadav, 2007: ‘appointments made … without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India’ (para 24).
Now, in the appointment of these contract employees who were recently regularised, was this elementary requirement fulfilled? How many of these contract employees were appointed based on an open advertisement?
If the statement of the Minister of Higher Education that these appointments were not ‘backdoor’ is correct, the department has to demonstrate it. But it has failed to defend their appointments either in public or in court as having been done in consonance with the prescribed rules and procedures. It is therefore likely that most, if not all, of the appointments were done surreptitiously, or as we say, through the back door. And for that reason they are liable to be set aside as illegal ab initio, i.e., from the beginning. To quote the Supreme Court again, ‘those who come by the back door should go through that door’ (M.P. State Cooperative Bank vs Nanuram Yadav, 2007, para 20 [4]).
The other bare minimum, intended to ensure equality of opportunity, is that the state must appoint only those who satisfy the requisite qualifications. After examining the details of the 147 employees available in the Suo-Motu Disclosure made by the Higher Education Department for the year 2021¬-22 (under the RTI Act of 2005) — and I take the disclosure to be accurate — at least 70 do not have either NET or PhD. The Supreme Court is clear on this as well, and has stipulated, in M.P. State Cooperative Bankvs Nanuram Yadav, 2007, that ‘an appointment made …. ignoring the minimum educational qualification and other essential qualification would be wholly illegal’ (para 20 [3]).
Going by these, it is clear that most, if not all, of the 147 appointments which were recently regularised were illegal.
Recruiting assistant professors
In addition to fulfilling these elementary constitutional requirements, the process of recruitment must fulfil the statutory rules in place. Statutory rules are those framed by the government in exercise of powers granted by the constitution. In the current case, the statute governing the recruitment and terms of service of assistant professors in Nagaland is The Nagaland Higher Education Service Rules, 2015 (hereafter, NHES Rules). This statute was framed under Article 309 which authorises the Legislature or the Governor to regulate the recruitment and conditions of service of those appointed to public posts in the state.
It is necessary here to refer to Dr. Kevileno Sakhrie’s discussion of Article 309 and the role of the Executive regarding appointments in her piece ‘An Appeal’ (The Morung Express, 21 April 2025). There, the learned and experienced Dr. Sakhrie says that Article 309 grants the ‘recruiting authorities’ the power to frame rules. This is completely wrong. In the case of assistant professors, as indeed in the civil services generally, the recruiting authority is the Nagaland Public Service Commission (NPSC). But contrary to what Dr. Sakhrie has said, Article 309 gives the power to frame rules of recruitment and conditions of service, not to the NPSC, but to the Legislature (which ideally includes the opposition), or by the Governor in the absence of an Act of Legislature. Needless to say, the rules that are framed cannot contravene the provisions of the Constitution. And the NPSC is bound by the rules so framed.
Yes, it is true, as Dr. Sakhrie says that the Executive (more specifically, the Cabinet or Council of Ministers) has the final authority to sanction/create or even abolish posts. However, the Executive, very importantly, is not given the power of recruitment. For obvious reasons: they will misuse it to favour friends, family, well-wishers, etc. (Dr. Sakhrie’s statement that ‘the executive is vested with the power to recruit persons to government services’ is misleading at best.) Instead, the Constitution gives the power of recruitment to Public Service Commissions (in our case, the NPSC, see Article 315) which are independent constitutional bodies whose members are not beholden to the Executive. In fact, members of PSCs can only be removed by the President and that too only after an enquiry by the Supreme Court (Article 317, Clause 1). All this to ensure that the Executive cannot exercise undue pressure on the Public Service Commission.
To come back to the NHES Rules, only two modes of recruitment are envisaged in these statutory rules: direct recruitment and promotion (rule 6). Promotion would relate to the elevation of assistant professors to associate professors, and then professors, principals, and other posts in the directorate. They are not the issue here. What is relevant is direct recruitment of assistant professors. The NHES Rules (rules 7 and 8) specify in detail the manner in which NPSC will carry out the recruitment. Briefly, and as we all know, the department shall requisition the NPSC when there is a vacancy or expected vacancy; the NPSC shall then advertise the posts; eligible candidates will apply before the set date; a written exam and interview shall be conducted by the NPSC; and the NPSC shall on the basis of merit recommend the successful candidates for appointment.
When such statutory rules regarding recruitment exist, the government cannot resort to any other mode of recruitment. To quote the landmark judgment of the Constitutional bench of the Supreme Court in Secretary, State of Karnataka vs Uma Devi: ‘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’ (para 6).
Contract employment
It must be noted that the courts have not held contractual appointments as such to be unconstitutional. They may be necessary in certain emergencies: say, there is a time-bound central government project which the state needs to implement or complete as soon as possible. Because contract appointments happen under such circumstances, they are temporary in nature and liable to be terminated when the circumstances improve or, ideally, when a regular appointment is made to take their place. Contract employees are given very low pay and, given their temporary nature, do not offer any job security. They are therefore considered problematic and even exploitative.
It is true, and I agree with Dr. Sakhrie here, that contract appointments may be absolutely necessary in colleges and universities. They are actually quite common. For example, in the case of colleges and universities, a contract teacher might need to be hired to teach a class because the regular teacher is on leave, or because a new course has suddenly been introduced in pursuance of a new government policy (such as the New Education Policy 2020), or the teacher-student ratio needs to be maintained to fulfil UGC rules, etc. However, the necessity of contract employment does not at all mean that the authorities making the appointments can forego the prescribed procedures of appointment.
The University Grants Commission (UGC) Regulations, 2018, which governs the functioning of institutions of higher education in India, in fact allows universities and colleges to make contract appointments ‘when it is absolutely necessary and when the student-teacher ratio does not satisfy the laid-down norms’ (Regulation 13). I refer to the UGC Regulations because the State government used it to justify its appointment of contract teachers before the Gauhati High Court, Kohima Bench (hereafter, High Court) (in NNQF vs State of Nagaland, 2019, para 31).
Assuming that it is the UGC Regulations and not the NHES Rules that govern the appointment of contract teachers, it must be noted that the same UGC regulation (i.e. Regulation 13) specifies that ‘such appointments should not exceed 10% of the total number of faculty positions in a College/University’. Moreover, it also lays down that ‘the qualifications and selection procedure for appointing them [contract teachers] should be the same as those applicable to a regularly-appointed teacher’. The minimum eligibility is Masters with NET for assistant professors and the selection procedure includes open advertisement, screening, presentation, interview.
If it was the UGC regulations that the Department of Higher Education really followed, were these other stipulations adhered to? Or did the state merely pick and choose only portions of the regulation favourable to them and ignored the rest?
Contract appointments: banned after 6 June 2016
Now, can the state government actually make contract appointments? Not after 6 June 2016. The Office Memorandum (OM) of that date specifies: ‘Appointment on contract basis is banned’. Moreover it states that ‘a post coming within the purview of NPSC can be filled only by appointing a candidate recommended by the NPSC on the basis of open recruitment and it cannot be filled up, even temporarily, in any other manner. Any appointment made on contract basis, henceforth, shall be null and void’.
While we might question the wisdom of such a blanket ban on contract appointments given their necessity in certain cases, the OM is clear and leaves no room for confusion. Assistant professor posts in the Department of Higher Education come under the purview of the NPSC. Therefore, going by this OM, the appointment of contract assistant professors made after 6 June 2016 are, in the words of the same OM, ‘null and void’.
This is pertinent because the state is obliged to apply and practice the standards it professes. In this regard, the High Court has observed, in ACAUT vs State of Nagaland, 2018:
The Apex [i.e. Supreme] Court has held that the authority is bound by the standard it professes and any departure from the professed standards would vitiate the decision making process. Accordingly, the State respondents [i.e. the departments and other officials against whom the case was filed] would have to bear in mind the fact that in the event of any of the private respondents [i.e. the assistant professors against whose appointments the case was filed] being appointed on a contractual/temporary basis, in violation of the OM dated 6.6.2016, the same would have to be deemed to be null and void (para 17).
However, among the 147 contract teachers regularised, almost half of them were appointed after 6 June 2016, in contravention of the State’s own memorandum. The same Suo-Motu Disclosure relied upon above provides the details of dates of appointment of all the 147 contract teachers except nine. Of the 138 teachers whose details are available in the disclosure, 64 were appointed after 6 June 2016. These appointments would be, in the words of the government OM as well as the High Court, ‘null and void’.
Contract appointments: possible before 6 June 2016
Contract appointments were possible before 6 June 2016. An OM of 26 February 2001 had a provision for making contract appointments in cases of ‘extreme urgency to fill a vacant [i.e. sanctioned] post’. That’s to say, contract appointments were possible before 6 June 2016 but only against vacant [i.e. sanctioned] posts.
Sanctioned posts, to clarify, are regular posts that the government creates. Such posts may have already been created and lying vacant because of death or retirement or resignation. The government may also sanction (i.e., create) new posts keeping in mind on its own financial condition and the needs of the departments.
According to the 2001 OM, it is only against such sanctioned posts that contract appointments can be made. Now, the Minister of Higher Education has maintained that the 147 posts to which the contract teachers were recently regularised were sanctioned specifically for them (Global Window, https://www.youtube.com/watch?v=zSZ5v6bjhiE). Without going into the obvious illegality of the government’s action of sanctioning more than a hundred Class-1 gazetted posts for specified or pre-selected employees, does the Minister’s statement — that the posts were sanctioned for them — imply that they are occupying non-sanctioned posts? If so, such appointments against non-sanctioned posts are illegal by the government’s own memorandum.
Quite apart from the statements of the Minister, which might be legally and factually ill-advised, in NNQF vs State of Nagaland, 2019, where 175 contract assistant professors/librarians were impleaded (including almost all of those recently regularised), the petitioners submitted that only 40 of them were appointed against sanctioned posts and that the rest were appointed against non-sanctioned posts (para 2).Even if we assume that the 40 sanctioned posts were held by those recently regularised, it would still leave over 100 contract employees who had been appointed to non-sanctioned posts.
Quite apart from the violation of the June 2016 ban on contract appointment, their appointments to non-sanctioned posts would also violate the provisions of the government’s OM of February 2001. And they are subject to the same observation of the High Court noted above: that because they depart from the government’s own professed standards, they are liable to declared as null and void.
More strongly, appointment to an unsanctioned post would render the appointment illegal. The High Court, in the landmark Atouzu Pienyu vs State of Nagaland, 2014, specifies that, inter alia, ‘illegal appointments are those where there is no sanctioned vacancy yet appointment has been made’ (para 20).
The legality of regularisation
Is regularisation constitutionally valid? In brief, no. For the following simple reason: if allowed, it would become a parallel recruitment process. That’s to say, in our case, apart from the regular mode through the NPSC, there would exist another mode of recruitment into service: i.e., via regularisation of contract appointments. In such a case, the executive would itself become a recruiting authority in addition to the NPSC. If such a parallel mode of recruitment exists, the existence of the NPSC as well as the rules regulating recruitment become unnecessary.
Because of this, a Constitution bench of Supreme Court held, in its landmark judgment in State of Karnataka vs Uma Devi, 2006, that ‘regularization is not and cannot be a mode of recruitment by any State … or any body or authority governed by a statutory Act or the Rules framed there under’ (para 27). It stated that ‘when rules framed under Article 309 of the Constitution of India are in force [in our case, the NHES Rules, 2015], no regularization is permissible in exercise of the executive powers of the Government’ (para 14).
One misinformed write-up circulated on social media has referred to the same judgment, i.e., State of Karnataka vs Uma Devi, 2006,to argue that one-time regularisation of those who had been serving for more than 10 years was allowed. That judgment had directed that ‘the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts’ (para 44).
A subsequent judgment of the Supreme Court, State Of Karnataka vs M.L. Kesari, 2010,clarified what this ‘one-time measure’ means: ‘The one-time exercise should consider [those]who had put in 10 years of continuous service as on 10.4.2006’ (para 7).The Supreme Court, thus, allows a one-time regularistion but only for those who had completed ten years of continuous service by 10 April 2006, the date of the judgment in State of Karnataka vs Uma Devi. Not even a single one of those who were recently regularised had completed 10 years of service by 10 April 2006.
Moreover, note that State Of Karnataka vs Uma Devi allows the regularisation of those who were ‘irregularly’ appointed to ‘duly sanctioned posts’. (We have seen already that most of the contractual appointees recently regularised must have been appointed to non-sanctioned posts.) The judgment clarifies what it means by irregularity: ‘An appointment which was made throwing all constitutional obligations and statutory rules to the winds would render the same illegal whereas irregularity presupposes substantial compliance with the rules’ (para 10).
The minimal ‘constitutional obligations’ to be fulfilled, as we saw above, are open advertisement and the appointment of qualified candidates. Otherwise, the recruitment would contravene the fundamental right to equality of opportunity. And the ‘statutory rules’ (in our case, the NHES Rules) specify that the appointment must have been done against sanctioned posts and through the NPSC.
But as already explained, most, if not all, of those recently regularised fail to fulfil one or some or all of these conditions. As such, their appointments are grossly illegal, not merely irregular. Therefore, the question of their regularisation does not even arise. In the same judgment, the Supreme Court held: ‘when appointments were made in contravention of mandatory provisions of the Act and statutory rules framed there under and by ignoring essential qualifications, the appointments would be illegal and cannot be regularized by the State’ (State of Karnataka vs Uma Devi, 2006, para 27). Such illegality, the Supreme Court has further laid down, ‘cannot be cured by taking recourse to regularization’ (M. P. State Cooperative Bank vs Nanuram Yadav, 2007, para 20[3]).
State government Office Memorandums on regularisation
It might be apt to note here that there are at least two state government OMs (one from 4 July 2008 and another from 11 August 2016) which do provide for regularisation of those contract employees who have been serving continuously for three years. Technically, these would not apply to the contract teachers as their services are terminated after a year and restarted after a day’s gap. Meaning, they cannot claim ‘continuous’ service. In universities, contract teachers are terminated after each semester and they go through the entire recruitment process again.
In any case, the 2008 OM, affirmed by the August 2016 OM, provides that ‘Contract employees who have completed more than 3 years of continuous service on Contract/ad hoc, will be eligible for regularization against sanctioned post’. Similarly, two very recent OMs, both released on 16 March 2024, envisage a large scale regularisation drive of contract appointments made against sanctioned posts prior to 6 June 2016 throughout all departments at all levels (Group A, B, C and D). These OMs are likely to effect, in the not too distant future, the regularisation of many thousands of government employees appointed on contract.
However, the High Court has held in ACAUT vs State of Nagaland,2018 that these OMs (of 2008 and August 2016) are unconstitutional. The same would potentially apply even to the OMs of March 2024. Specifically, the High Court observed: (a) that the regularisation clause in these OMs ‘is in violation of the law laid down by the Apex Court’ (para 29, referring to State of Karnataka vs Uma Devi, 2006) and (ii) that the regularisation clause being ‘inconsistent’ with the law laid down by the Supreme Court, ‘if the State Government Act in violation of the law laid down by the Apex Court, the same would have to be considered to be illegal and a challenge to the same can be made as the said regularization will be null and void’ (para 24).
Having held these to be unconstitutional, the High Court actually issued the following direction to the state government: ‘the State respondents should not regularize any person … in terms of the OM dated 11.8.2016 and the OM dated 4.8.2008’ (para 29). The state government challenged this direction, but the challenge was dismissed.
The basis of the government decision
If these are the illegalities that the government has already indulged in, on what basis did it carry out the regularisation? The regularisation notifications of December 2024 invoke Rule 28 of the NHES Rules which provides the following: ‘Where undue hardship is likely to be caused to any person by the application of any of these rules, the Governor shall have the powers to relax the application of that rule in respect of that person for good and sufficient reason which shall be without prejudice to the interests of any other member of the service’.
Now, when, as we have already seen, the initial appointment itself is illegal, the question of the relaxation of rules for persons in such appointments — regardless of the hardships they may be facing or the ‘good and sufficient reason’ the government may produce — do not arise at all.
Moreover, the NHES Rules were framed under Article 309 which gives the state Legislature or Governor the authority to regulate ‘the recruitment, and conditions of service of persons appointed to public services’ under the State. The Supreme Court has held in R. N. Nanjundappa vs T. Thimmiah, 1971, that rules drafted under Article 309 ‘are not for the purpose of validating an illegal appointment’. It went on to specify that ‘regularisation by way of rules under Article 309 … [is] in itself violation of the rules’. In short, the state cannot invoke Rule 28 of the NHES Rules 2015 to regularise appointments when those very appointments were made in contravention of the rules (specifically, Rules 6–8) laid down in the same NHES Rules. Such blatant contradictions — where one rule is used in violation of other rules within the same statutory law — cannot be allowed as they would destroy the very point of having rules in the first place.
In prior cases, the government (and other state governments too) have also taken recourse to Article 162 to justify their powers of regularisation (e.g. Atouzo Pienyu vs State of Nagaland, 2014, para 3). Article 162 provides that ‘the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws’. The Supreme Court has held that ‘there was no power in the State under Article 162 of the Constitution of India to make appointments and even if there was any such power, no appointment could be made in contravention of statutory rules’ (State of Karnataka vs Uma Devi, 2006, para 29). The same point was reiterated by the High Court in Atouzu Pienyu vs State of Nagaland, 2014:
Even taking recourse to a scheme framed under Article 162 of the Constitution to circumvent the procedure prescribed under a statutory rule would be contrary to the constitutional mandate. It is established law that no regularization is permissible on the strength of a Cabinet decision adopted in exercise of power under Article 162 of the Constitution of India and consequently such regularization is liable to be struck down. (para 19)
Long serving employees
Given the fact that many of the contract teachers have served for so many years, can’t they be regularised out of ‘sympathy’, on ‘humanitarian’ grounds? In this regard, the Supreme Court has warned courts not to act out of ‘misplaced sympathy’. Sentiment, it commented, ‘is a dangerous will o’ the wisp to take as a guide in the search for legal principles’ (State of Karnataka vs Uma Devi, 2006, para 28).This is particularly so when the appointments were illegal to begin with — i.e., when they were made in contravention of constitutional and statutory provisions. They are infact liable to be terminated. Such illegal appointees cannot expect any sympathy. Around a decade ago, to give one example, a number of policies made by the Haryana government which sought to implement ‘a one time measure’ of regularisation on ‘humanitarian grounds’ were struck down by the Punjab-Haryana High Court (Yogesh Tyagi vs State of Haryana, 2014).
Existing court cases
A number of petitions had already been filed challenging these contract appointments before the High Court. Some of the early petitions were disposed on technical grounds— such as, lack of maintainability and lack of locus standi — but not because the issue raised lacked merit. As an example, we can look at NNQF vs State of Nagaland, 2019. In this petition, the Nagaland NET Qualified Forum (NNQF) along with 20 aspirants took the State of Nagaland and 175 contract teachers to court.
The case was that all the contract employees impleaded (i.e., against whose appointments the petition was filed) were appointed without following the due process mandated by law (i.e. the constitution as well as the NHES Rules). The request, inter alia, was that their appointments, since illegal, be set aside. To use legal jargon, the Writ Petition (Civil), appealed the High Court to use the powers granted by the Constitution under Article 226and to issue, among others, a writ of mandamus asking the state to terminate the appointment of the contract employees.
After hearing the arguments, the court held that there was ‘no scope for entering into the merits of the case and that the writ petition has to fail on the [technical] grounds of maintainability and locus standi’ (para 42).
To say that a case is not maintainable is to say that the petition does not fulfil the criteria which must be met for legal proceedings to happen in the first place. To illustrate, the state and some of the contract teachers argued, validly, that the petition was filed by the NNQF which is not a registered body, and therefore not a ‘person’ recognised by law. Therefore, NNQF could not file a writ petition (para 4).
Locus standi is a legal principle which requires that the petitioners demonstrate a genuine interest in the case. This principle exists in order to prevent just anybody from filing a case against anybody else. Using this principle, some contract teachers argued that they were holding posts in ‘Botany, Zoology or Anthropology’(para 4), ‘Computer Science and Statistics’ (para 5), ‘Tenyidie’ (para 6), ‘Chemistry’ (para 8), etc., whereas none of the 20petitioners had NET in any of these subjects. Surely, they argued, these petitioners can have no interest— did not possess any locus standi — with regard to their appointments as the petitioners cannot be appointed to those posts at all (e.g., para 4).
Other contract teachers argued that while the petitioners may have Masters and NET in the required subject, they (contract teachers) had been appointed before the petitioners cleared the NET exam. Again, the petitioners did not therefore have any locus standi with regard to the appointment of the contract teachers as the petitioners could not have applied for these posts at that time they were appointed (e.g., para 9).
For these reasons, the merits of the case could not be adjudicated. The court however gave liberty to the petitioners to file fresh cases which could not be simply dismissed on technical grounds. As a result, 13 fresh and more specific petitions challenging the appointments of as many as 115 assistant professors appointed on contract have been filed and they are now pending before the High Court.
In each of these cases, the High Court had issued interim orders not to regularise the contract teachers impleaded. However, in a brazen violation of judicial authority, the state government went ahead and regularised all of them. Had the state government not kept the regularisation orders in abeyance, this action would have invited contempt of court proceedings and state officials would be liable to be jailed or fined.
What now?
There was a similar case, viz., Atouzo Pienyu vs State of Nagaland, 2014, where the appointment of 13 veterinary surgeons on contract and their subsequent regularisation under the 4 July 2008 OM (see above) were challenged. The High Court upheld the regularisation of two employees who had completed 10 years of service before their regularisation but struck down the regularisation of the other 11 employees (para 20).In order to fill these vacancies, the state was directed (para 21) to comply with the rules framed for the recruitment of surgeons (namely Rule 7 of the Nagaland Animal Husbandry & Veterinary Service Rules, 1979 framed under Article 309). The High Court ordered that those employees whose regularisation had been struck down and had become over-aged be, nevertheless, allowed to compete.
In the current case, among the 147 contract employees who were recently regularised, at least one has been serving for nearly twenty years and more than 50 have served for at least 10 years (as of 28April 2025). It is possible that the court might look favourably towards some of these candidates in the interest of the students or the larger public interest, even if most of them may have been appointed illegally.
There is precedent on the matter. In a very recent judgment, A. Venkatram Reddy vs The State of Telangana, 2024, the Telangana High Court struck down as unconstitutional one section (specifically 10 [A]) of The Telangana (Regulation of Appointments to Public Services) Act, 1994, which prescribed a scheme of regularisation. This section had been added by a government order made in 2016. The court not only struck down the section as unconstitutional (see para 64), but also held that the regularisation of around 5500 employees, all appointed in 2009, was not in consonance with law (see para 61). However, it did not order the termination of the employees citing the already 15 years of service and in favour of the ‘larger public interest’ (para 63) even though ‘the contractual appointments were against public policy’ (para 61).
While some among the 147 might therefore get relief, the High Court is unlikely to have the same sympathy for those appointed more recently (some as recently as 2020). To what extent the Court may invoke the larger public interest— given that the case in Telangana involved more than 5000 employees and we are dealing with less than 150 — is an open question and for the court to decide.
More practically, and as a useful compromise, 6 June 2016, the date of the government’s OM prohibiting contract employment, may be taken as an appropriate cut-off date. That has in fact been the demand of the CTAN (Combined Technical Association Nagaland) and NNQF who have been leading the agitation from the beginning. The services of those appointed after that date may be terminated and the vacant posts filled through the proper procedure via the NPSC. In consonance with precedent, these employees, even if over-aged, may be allowed to compete in the exam.
Concluding note
This unfortunate chronicle reveals a deep-rooted and dangerous culture of administrative caprice and impunity that appears to characterise the way the Government of Nagaland functions. While it is the Department of Higher Education in the current case, it is unlikely that such a culture limited to this department alone. Of course, the circumvention of statutory rules and the passing of unconstitutional orders by the government is not unique to our government. However, a number of friends from other states whom I have spoken to, and who are well aware of the illegalities perpetrated by governments in their own states, have been shocked by the sheer breadth and depth of the illegalities that the government of Nagaland has resorted to in this fiasco.
Such actions must not be tolerated. Otherwise, the message to the people, especially the young students, will be the following. That in matters of public employment, it is the whims and fancies of those who happen to be in power that will determine who gets appointed, even to Class-1 gazetted posts, even if such appointment might be against its own orders, statutory laws, or constitutional provisions. That if you have the right contacts and connections in high enough places, you may get to be appointed even against non-sanctioned posts and then be regularised to a post that is specifically sanctioned for you. That, on the other hand, if you don’t have such connections, you may not even get to learn that there is a vacancy at all, even if there actually is one!
The state government is currently on the backfoot. While it is not for anyone of us to say what the 5-member committee it has constituted to examine the matter will discover in the course of its work, it is difficult to see what it can come up with except a depressing and shameful litany of missteps and illegalities. It is equally difficult to imagine any other recommendation other than that these grave mistakes be rectified promptly and correctly.
The author can be reached at chiangmong.k@gmail.com for comments, corrections, queries or to request the material used.
