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To promote “EQUALITY” let us remember a quotation by ARISTOTLE – “Injustice arises when equals are treated unequally and also when unequal are treated equally”. Article 16 of the Constitution of India states that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. Several associations especially the eligible candidates fight for equal opportunity as they were mostly deprived of their rights to sit for open competition as advertisements were rarely seen. In Nagaland it is very disheartening to learn from these aggrieved candidates that many of them didn’t get a chance to participate in open competition just because of the fact that the departments don’t requisite the vacant post to Nagaland Public Service Commission (NPSC) and many of these posts were occupied through backdoor appointment. It came to light through RTI that a good number of posts were yet to be sent to NPSC for the conduct of open competition and few hundred posts were occupied through backdoor appointment in almost all the departments under the Govt. of Nagaland. Supreme Court of India remarked that the cases of backdoor appointments are disgusting. The entry of these appointees into the service having been achieved through back door cannot acquire any right and so regularisation of their service would amount to negating the prescribed procedure at the cost of Article 14 & 16 of the Constitution of India and even the Cabinet decision in exercise of power under 162 of Indian Constitution of such regularisation is still liable to be struck down. Public employment involves corruption such as; i) abuse of power – using position or status to discriminate somebody or gain something from that person. ii) nepotism – giving jobs to relatives and family members. iii) favoritism – giving unfair opportunity to friends, awarded contract works or supplies in table tender to own choice of people. iv) extortion – obtained by force, threats or unfair means. v) bribery – taking money to give people’s job, profession, treatment or dishonestly persuade someone for help through cash. Selling government jobs, etc. vi) embezzlement – stealing money or resources that is under one’s control. vii) fraud – making false claims for benefits, etc.
To ensure equal opportunity in public employment let us first question as to whether the state government adhered to Article 14 & 16 of the Constitution of India in the process of public employment by way of issuing advertisement inviting applications from all eligible candidates and holding a proper selection where all eligible candidates get a fair chance to compete?. Secondly, whether NPSC has constituted by a body of sufficient experts and its members are fair and impartial while holding the selection process through written examination & interview maintaining proportionate/reasonable ratio of total markings of written and interview?. Any appointment made without advertisement and without inviting applications from open market is backdoor appointment/irregular and amounts to infringement of Article 14 & 16 of Indian Constitution.
The fight against backdoor appointment is to mete out justice by ensuring “Equality of appointment in matters of public employment” enshrined as a fundamental right in Article 16 of Indian Constitution to the many educated/meritorious/qualified/unemployed youths so as to bring about a positive change in public administration and achieve the goals/ideals laid down in the Constitution. It is also the fight against all those employed who have been appointed/recruited in various departments of the Govt. of Nagaland bypassing the Constitutional schemes of public employment through the modus operandi of illegal, backdoor, contractual, ad hoc, casual, temporary, deputation, irregular, etc, modes of appointment in collusion between the bureaucrats and the politicians. The Govt. of Nagaland O.M ,NO. AR-3/Gen-179/2007(Pt) dated 13th January 2010 on the subject – “irregular appointment of Govt. servants by some appointing authorities” reveals the naked truth about the most unethical ‘department ethics’ that has taken a stranglehold on governance in the State which is stated as follows – “It has come to the notice of the Government that a number of unauthorised appointments have been made by certain Heads of Departments on the eve of their retirements without following the prescribed procedure. Now, the Government has taken a decision that all those irregular appointments made by them should be immediately cancelled by the concerned Administrative Heads of Depts. And also criminal prosecution of the guilty officials be taken up by filing an FIR in the Vigilance Commission (now Nagaland Lokayukta) and all payments of pensioner benefits should be withheld till criminal case is disposed off”.
The apex court of the country reported in several case such as; (a) “regularisation is not and cannot be the mode of recruitment by any State” ..... “regularisation cannot give permanence to an employee whose services are ad hoc in nature” (b) “The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisements made ...”. “Any regular appointment made in a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution”.
The entry of any appointee into the service having been achieved through back door cannot acquire any right and so regularisation of his/her services would amount to negating the prescribed procedure at the cost of Article 14 and 16 of the Constitution to circumvent the procedure prescribed under a statutory rule would be contrary to the constitutional mandate. It is the established law that no regularisation 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 regularisation is liable to be struck down. The adherence to Article 14 and 16 of the Constitution is a must in the process of public employment.
Recently the Madras High Court asked the state government to stop regularising back door appointment in government jobs stating that regularising backdoor entry in public services violates the fundamental rights of those aspiring for public employment especially rural and semi-urban citizens and ordered the State Government to immediately stop back door appointment in public services in order to ensure that equal opportunity is provided to all eligible candidates through open competitive process.
Kezhokhoto Savi
Advocate & Social Activist