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CASE NO.: Appeal (civil)  849 of 2007

PETITIONER: State of Manipur & Ors

RESPONDENT: Y. Token Singh & Ors

DATE OF JUDGMENT: 20/02/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  WITH [Arising out of SLP (C) No. 19110-19112 of 2005] CIVIL APPEAL NO.850 OF 2007 [Arising out of SLP (C) No. 19375-19376 of 2005]

S.B. SINHA,  J :

       Leave granted.   

       The State of Manipur is in appeal before us questioning the judgment  and order dated 29.07.2005 passed by a Division Bench of the Guwahati  High Court in WA Nos. 61, 78, 79, 95 and 100 of 1999 upholding a  judgment and order of a learned Single Judge of the said Court dated  19.02.1999 in C.R. Nos. 324, 1012, 568, 1022 and 1023 of 1998.

       One Shri A.J. Tayeng was the Revenue Commissioner of Government  of Manipur.  The State of Manipur had not framed any recruitment rules for  appointment inter alia in the Revenue Department and in particular the field  staff thereof.  The Commissioner of Revenue Department was conferred  with a power of being the cadre controlling authority for non-ministerial post  of the Revenue Department.  He was also to be the Chairman of the  Departmental Promotion Committee for non-ministerial post of the Revenue  Department.   

       The Commissioner allegedly made certain appointments in the posts  of Mandols, Process-Servers and Zilladars which was not within the  knowledge of the State.  The said appointments were made on temporary  basis.  Appointments were made on 11.09.1997, 22.11.1997 and 5.12.1997.   A sample copy of the offer of appointment reads as under:

"No. 1/14/97 \026 Com (Rev) : On the  recommendation of D.P.C. and under the  directives issued by the Hon’ble Gauhati High  Court, the following persons are hereby appointed  as Mandols on temporary basis in the scale of pay  of Rs. 950-20-1150-EB-25-1400/- per month with  usual allowances against thereto existing clear  vacancies of Mandals under Revenue Department  from the date of their joining on duties.

2.      Further, they are posted at the places  indicate against their names:-

***                     ***                             ***

3.      The expenditure is debitable under  Appropriate Heads of Accounts of the

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Departments/ Offices concerned."

       No record in regard to the said recruitments was maintained.  An  inquiry was, therefore, made to find out the authority which had issued the  said offers of appointments.  Shri Tayeng by a UO Note dated 12.01.1998  denied to have made such an appointment stating:

"CONFIDENTIAL U.O. No. 2/15/93-Com (R) Pt. Imphal, the 12th Jan., 1998

Sub:    Submission of report.

With reference to the U.O. letter No. 2/15/93- Com(R) Pt. Dated 6th January, 1998 regarding the  alleged appointment of ad-hoc/ regular  appointment to the post of Lambus/ Mandols etc.  of the Hon’ble Minister (Revenue), I am to say that  I am not all aware of such appointments made by  me except for 3 Lambus who were kept in panel  for appointment, and accordingly the S.O.  (Revenue) Shri Robert Shaiza was instructed to  take care.  I, therefore, deny making of such  appointments.

       On the other hand, Md. A.R. Khan,  Secretary (Revenue) has made many appointments  of Mandols/ Process Servers/ Zilladars in the  recent months against which I have been  complaining that the Secretary (Revenue) has no  power or authority to make any appointments of  field staff as per Rules provided under M.L.R. Act,  1960.  In this regard, I have apprised the matter to  the Hon’ble Minister (Revenue) already and also  informed the Chief Secretary, Manipur explaining  that the Secretary (Revenue) cannot make such  appointments of field staffs, even if he wanted to  do so, all the relevant files should have been routed  through the undersigned so that the same may be  brought to the notice of the Hon’ble Minister  (Revenue).  His action has created lots of  misunderstanding and confusion.  He has been  making false and wrong allegations against the  Commissioner (Revenue) and putting him false  position.  It is for this reason, I have been writing  to all the Deputy Commissioners in the Districts  even by sending W/T messages clarifying the  actual position of making any appointment of  Revenue field staff.

       I still deny that I have made any  appointment of field staffs of Revenue Department  during the recent months.

       Submitted for information and  consideration.

Sd/- 12/1/98 (Annayok J. Tayeng) Commissioner (Revenue) Govt. of Manipur

Minister (Revenue)"

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       In view of the aforementioned stand taken by the said Shri Tayeng,  the offers of appointment issued in favour of the Respondents were  cancelled by an order dated 17.02.1998.  A corrigendum thereto was,  however, issued on 21.02.1998 stating:

"No. 2/15/93-Com(Rev) Temp-I: Please read as  "August/97" in place of "October/97" occurring in  the 4th line of this Government order No. 2/15/93- Com(Rev) Temp-I dated 17-2-1998."

       In Civil Appeal arising out of SLP (C) No. 19375-19376 of 2005, the  respondents were appointed on ad hoc basis for a period of six months.   Their appointments were also cancelled on similar grounds.   

       The respondents herein filed writ petitions before the High Court on  4.06.1998 questioning the said order of cancellation of their appointments.   The said Shri Tayeng retired on 28.02.1998.  Despite the fact that he, in his  UO Note dated 12.02.1998 addressed to the Minister of Revenue, denied to  have made any appointment, when approached by the writ petitioners \026  respondents, he affirmed in their support an affidavit in the High Court  stating:

"3. That, while I was functioning as Revenue  Commissioner, Manipur, matters relating to  appointment on the recommendation of the D.P.C.,  transfer etc. were put-up to me in files and I used  to pass order on the basis of facts presented to me  in file.  I also issued appointment order under my  signature.  After my retirement from service I have  no access to such files.  As stated above, I was  transferred and posted to the Manipur Electronics  Development Corporation during 1997.

4. That after my retirement, some of the writ  petitioners civil Rule No. 568 of 1998, came to me  and show copy of the writ petition and the counter  affidavit of the respondent No. 1, 2 and 3.  I have  gone through the copy of the writ petition and the  counter-affidavit and annexures thereto.  The  Xerox copy of the cyclostyled appointment order  bearing No. 1/14/97 \026 Com (Rev.) dated 11.9.97  (annexure A/1 to the writ petition) appointing 3  persons to the post of Mandol and No. 1/14/97-  Com. (Rev.) dated 11.9.97 (Annexure A/2 to the  writ petition) appointing 4 persons to the post of  Mandol, are perused by me minutely.  I submit that  these appointment orders (annexures A/1 and A/2)  bear my signature (initial) and appear to have been  issued under my signature.  It appears that the  appointment orders were issued after complying  the formalities prescribed therefor which can be  ascertained from the relevant official file.  Since I  have retired from service, I have no access to the  file and do not know what might have been in the  file and where is the file.

       Verified that the above statements are true to  the best of my knowledge and no part of it is  false."

       The writ petitions filed by the respondents herein were allowed by a  learned Single Judge of the High Court opining:

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(i)     The principles of natural justice having not been complied with,  the impugned orders cannot be sustained. (ii)    Whereas, in the impugned order, the appointments of the  respondents were said to have been passed without the knowledge  of the Administrative Department (Revenue Department); in the  counter affidavit, it was stated that no records were available in  respect thereof and, thus, the said plea being inconsistent with each  other, the orders of cancellation of appointment would be bad in  law in the light of a decision of this Court in Mohinder Singh Gill  and Anr. v. Chief Election Commissioner, Delhi and Ors. [AIR  1978 SC 851].                            However, it was observed:

"However, it is further made clear that the State  respondent are at liberty to initiate or take up any  appropriate legal action in the matter pertaining to  their alleged fake appointments in their respective  posts in accordance with law and pass necessary  order after affording reasonable opportunity of  being heard to them."

(iii)  So far as the matter relating to Civil Appeal arising out of SLP (C)  No. 19375-19376 of 2005 is concerned, it was directed that as the  appointment of the respondents were made for a period of six  months, the employees were only entitled to the salary for the said  period.

       The writ appeals preferred thereagainst by the appellants herein were  dismissed.   

       Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the  appellants, would submit that the High Court went wrong in passing the  impugned judgment insofar as it failed to take into consideration that in a  case of this nature it was not necessary to comply with the principles of  natural justice.  Strong reliance in this behalf has been placed on Kendriya  Vidyalaya Sangathan and Others v. Ajay Kumar Das and Others [(2002) 4  SCC 503].   

       It was argued that the question, as to whether appointments were  made without the knowledge of the Department or for that matter whether  any record was available therefor was of not much significance as in effect  and substance they lead to the same inference and in that view of the matter,  the decision of this Court in Mohinder Singh Gill (supra) was not attracted.

       Mr. S.B. Sanyal, learned counsel appearing on behalf of the  respondents, on the other hand, would submit that the question as to whether  the appointments of the respondents were nullities or not having not been  raised before the High Court, this Court should not permit the appellants to  raise the said contention at this stage.  The learned counsel would submit  that even in a case of this nature, it was incumbent upon the appellants to  comply with the principles of natural justice.  Strong reliance in this behalf  has been placed on Parshotam Lal Dhingra v. Union of India [AIR 1958 SC  36], Murugayya Udayar and Another v. Kothampatti Muniyandavar Temple  by Trustee Pappathi Ammal [1991 Supp (1) SCC 331] and Kumari Shrilekha  Vidyarthi and Others v. State of U.P. and Others [(1991) 1 SCC 212].

       The State while offering appointments, having regard to the  constitutional scheme adumbrated in Articles 14 and 16 of the Constitution  of India, must comply with its constitutional duty, subject to just and proper  exceptions, to give an opportunity of being considered for appointment to all  persons eligible therefor.

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       The posts of field staffs of the Revenue Department of the State of  Manipur were, thus, required to be filled up having regard to the said  constitutional scheme.  We would proceed on the assumption that the State  had not framed any recruitment rules in terms of the proviso appended to  Article 309 of the Constitution of India but the same by itself would not  clothe the Commissioner of Revenue to make recruitments in violation of  the provisions contained in Articles 14 and 16 of the Constitution of India.

       The offers of appointment issued in favour of the respondents herein  were cancelled inter alia on the premise that the same had been done without  the knowledge of the Revenue Department of the State.  No records therefor  were available with the State.  As noticed hereinbefore, an inquiry had been  made wherein the said Shri Tayeng, the then Commissioner of Revenue  stated that no such appointment had been made to his knowledge.  The State  proceeded on the said basis.  The offers of appointment were cancelled not  on the ground that some irregularities had been committed in the process of  recruitment but on the ground that they had been non-est in the eye of law.   The purported appointment letters were fake ones.  They were not issued by  any authority competent therefor.

       If the offers of appointments issued in favour of the respondents  herein were forged documents, the State could not have been compelled to  pay salaries to them from the State exchequer.  Any action, which had not  been taken by an authority competent therefor and in complete violation of  the constitutional and legal framework, would not be binding on the State.   In any event, having regard to the fact that the said authority himself had  denied to have issued a letter, there was no reason for the State not to act  pursuant thereto or in furtherance thereof.  The action of the State did not,  thus, lack bona fide.

       Moreover, it was for the respondents who had filed the writ petitions  to prove existence of legal right in their favour.  They had inter alia prayed  for issuance of a writ of or in the nature of mandamus.  It was, thus, for them  to establish existence of a legal right in their favour and a corresponding  legal duty in the respondents to continue to be employed.  With a view to  establish their legal rights to enable the High Court to issue a writ of  mandamus, the respondents were obligated to establish that the  appointments had been made upon following the constitutional mandate  adumbrated in Articles 14 and 16 of the Constitution of India.  They have  not been able to show that any advertisement had been issued inviting  applications from eligible candidates to fill up the said posts.  It has also not  been shown that the vacancies had been notified to the employment  exchange.   

       The Commissioner furthermore was not the appointing authority.  He  was only a cadre controlling authority.  He was merely put a Chairman of  the DPC for non-ministerial post of the Revenue Department.

       The term "DPC" would ordinarily mean the Departmental Promotion  Committee.  The respondents had not been validly appointed and in that  view of the matter, the question of their case being considered for promotion  and/ or recruitment by the DPC did not and could not arise.  Even assuming  that DPC would mean Selection Committee, there is noting on record to  show who were its members and how and at whose instance it was  constituted.  The Commissioner, as noticed hereinbefore, was the Chairman  of the DPC.  How the matter was referred to the DPC has not been disclosed.   Even the affidavit affirmed by Shri Tayeng before the High Court in this  behalf is silent.

       The appointing authority, in absence of any delegation of power  having been made in that behalf, was the State Government.  The  Government Order dated 12.01.1998 did not delegate the power of  appointment to the Commissioner.  He, therefore, was wholly incompetent  to issue the appointment letters.

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       The respondents, therefore, in our opinion, were not entitled to hold  the posts.  In a case of this nature, where the facts are admitted, the  principles of natural justice were not required to be complied with,  particularly when the same would result in futility.  It is true that where  appointments had been made by a competent authority or at least some steps  have been taken in that behalf, the principles of natural justice are required  to be complied with, in view of the decision of this Court in Murugayya  Udayar (supra).

       We, as noticed hereinbefore, do not know as to under what  circumstances the orders of appointments were issued.

       The said decision is not an authority for the proposition that the  principles of natural justice are required to be complied with in all situations.

       In Kumari Shrilekha Vidyarthi (supra), this Court was dealing with a  question in regard to continuance of the Law Officers.  The question which  arose herein was not raised.  It was held:

"34. In our opinion, the wide sweep of Article 14  undoubtedly takes within its fold the impugned  circular issued by the State of U.P. in exercise of  its executive power, irrespective of the precise  nature of appointment of the Government Counsel  in the districts and the other rights, contractual or  statutory, which the appointees may have. It is for  this reason that we base our decision on the ground  that independent of any statutory right, available to  the appointees, and assuming for the purpose of  this case that the rights flow only from the contract  of appointment, the impugned circular, issued in  exercise of the executive power of the State, must  satisfy Article 14 of the Constitution and if it is  shown to be arbitrary, it must be struck down.  However, we have referred to certain provisions  relating to initial appointment, termination or  renewal of tenure to indicate that the action is  controlled at least by settled guidelines, followed  by the State of U.P., for a long time. This too is  relevant for deciding the question of arbitrariness  alleged in the present case. 35. It is now too well settled that every State  action, in order to survive, must not be susceptible  to the vice of arbitrariness which is the crux of  Article 14 of the Constitution and basic to the rule  of law, the system which governs us. Arbitrariness  is the very negation of the rule of law. Satisfaction  of this basic test in every State action is sine qua  non to its validity and in this respect, the State  cannot claim comparison with a private individual  even in the field of contract. This distinction  between the State and a private individual in the  field of contract has to be borne in the mind."

       We in the facts and circumstances of this case do not see any  arbitrariness on the part of the State in its action directing cancellation of  appointments.

       We may, on the other hand, notice that Kumari Shrilekha Vidyarthi  (supra) has been distinguished by this Court in State of U.P. and Others v.  U.P. State Law Officers Association and Others [(1994) 2 SCC 204] stating:

"\005The reliance placed by the respondents in this  behalf on Shrilekha Vidyarthi v. State of U.P. is

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misplaced for the obvious reason that the decision  relates to the appointment of the District  Government Counsel and the Additional/Assistant  District Government Counsel who are the law  officers appointed by the State Government to  conduct civil, criminal and revenue cases in any  court other than the High Court. Their  appointments are made through open competition  from among those who are eligible for  appointment and strictly on the basis of merit as  evidenced by the particulars of their practice,  opinions of the District Magistrate and the District  Judge and also after taking into consideration their  character and conduct. Their appointment is in the  first instance for one year. It is only after their  satisfactory performance during that period that a  deed of engagement is given to them, and even  then the engagement is to be for a term not  exceeding three years. The renewal of their further  term again depends upon the quality of work and  conduct, capacity as a lawyer, professional  conduct, public reputation in general, and character  and integrity as certified by the District Magistrate  and the District Judge. For the said purpose, the  District Magistrate and the District Judge are  required to maintain a character roll and a record  of the work done by the officer and the capacity  displayed by him in discharge of the work. His  work is also subject to strict supervision. The  shortcomings in the work are required to be  brought to the notice of the Legal Remembrancer.  It will thus be seen that the appointment of the two  sets of officers, viz., the Government Counsel in  the High Court with whom we are concerned, and  the District Government Counsel with whom the  said decision was concerned, are made by  dissimilar procedures. The latter are not appointed  as a part of the spoils system. Having been selected  on merit and for no other consideration, they are  entitled to continue in their office for the period of  the contract of their engagement and they can be  removed only for valid reasons. The people are  interested in their continuance for the period of  their contracts and in their non-substitution by  those who may come in through the spoils system.  It is in these circumstances that this Court held that  the wholesale termination of their services was  arbitrary and violative of Article 14 of the  Constitution. The ratio of the said decision can  hardly be applied to the appointments of the law  officers in the High Court whose appointment  itself was arbitrary and was made in disregard of  Article 14 of the Constitution as pointed out  above\005"                                                 [Emphasis added]

       In Parshotam Lal Dhingra (supra), this Court held that whoever holds  civil posts would be entitled to protection of their services in terms of Clause  (2) of Article 309 of the Constitution of India in the event any disciplinary  action is taken against them stating:

"\005The underlying idea obviously is that a  provision like this will ensure to them a certain  amount of security of tenure. Clause (2) protects  government servants against being dismissed or

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removed or reduced in rank without being given a  reasonable opportunity of showing cause against  the action proposed to be taken in regard to them.  It will be noted that in clause (1) the words  dismissed and removed have been used while in  clause (2) the words dismissed removed and  reduced in rank have been used. The two  protections are (1) against being dismissed or  removed by an authority subordinate to that by  which the appointment had been made, and (2)  against being dismissed, removed or reduced in  rank without being heard. What, then, is the  meaning of those expressions dismissed removed  or reduced in rank? It has been said in Jayanti  Prasad v. State of Uttar Pradesh that these are  technical words used in cases in which a persons  services are terminated by way of punishment.  Those expressions, it is urged, have been taken  from the service rules, where they were used to  denote the three major punishments and it is  submitted that those expressions should be read  and understood in the same sense and treated as  words of Art\005"

       In Dhirender Singh and Others v. State of Haryana and Others [(1997)  2 SCC 712], termination of an order of promotion in favour of the appellant  was not interfered with by this Court as the same had not been approved by  the DIG, being the competent authority.

       In M.C. Mehta v. Union of India and Others [(1999) 6 SCC 237], this  Court developed the "useless formality" theory stating:

"More recently Lord Bingham has deprecated the  useless formality theory in R. v. Chief Constable  of the Thames Valley Police Forces, ex p Cotton  by giving six reasons. (See also his article Should  Public Law Remedies be Discretionary? 1991 PL,  p. 64.) A detailed and emphatic criticism of the  useless formality theory has been made much  earlier in Natural Justice, Substance or Shadow by  Prof. D.H. Clark of Canada (see 1975 PL, pp. 27- 63) contending that Malloch and Glynn were  wrongly decided. Foulkes (Administrative Law,  8th Edn., 1996, p. 323), Craig (Administrative  Law, 3rd Edn., p. 596) and others say that the court  cannot prejudge what is to be decided by the  decision-making authority. de Smith (5th Edn.,  1994, paras 10.031 to 10.036) says courts have not  yet committed themselves to any one view though  discretion is always with the court. Wade  (Administrative Law, 5th Edn., 1994, pp. 526-30)  says that while futile writs may not be issued, a  distinction has to be made according to the nature  of the decision. Thus, in relation to cases other  than those relating to admitted or indisputable  facts, there is a considerable divergence of opinion  whether the applicant can be compelled to prove  that the outcome will be in his favour or he has to  prove a case of substance or if he can prove a real  likelihood of success or if he is entitled to relief  even if there is some remote chance of success. We  may, however, point out that even in cases where  the facts are not all admitted or beyond dispute,  there is a considerable unanimity that the courts  can, in exercise of their discretion, refuse

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certiorari, prohibition, mandamus or injunction  even though natural justice is not followed. We  may also state that there is yet another line of cases  as in State Bank of Patiala v. S.K. Sharma,  Rajendra Singh v. State of M.P. that even in  relation to statutory provisions requiring notice, a  distinction is to be made between cases where the  provision is intended for individual benefit and  where a provision is intended to protect public  interest. In the former case, it can be waived while  in the case of the latter, it cannot be waived."           In Kendriya Vidyalaya Sangathan (supra), it was held:

"\005It is clear that if after the termination of  services of the said Dr. K.C. Rakesh, the orders of  appointment are issued, such orders are not valid.   If such appointment orders are a nullity, the  question of observance of principles of natural  justice would not arise\005"                  In Bar Council of India v. High Court of Kerala [(2004) 6 SCC 311],  it was stated:

"\005Principles of natural justice, however, cannot  be stretched too far.  Their application may be  subject to the provisions of a statute or statutory  rule."

       In R.S. Garg v. State of U.P. and Others [(2006) 6 SCC 430], it was  stated:

"A discretionary power as is well known cannot be  exercised in an arbitrary manner.  It is necessary to  emphasize that the State did not proceed on the  basis that the amendment to the Rules was not  necessary.  The action of a statutory authority, as is  well known, must be judged on the basis of the  norms set up by it and on the basis of the reasons  assigned therefor.  The same cannot be  supplemented by fresh reasons in the shape of  affidavit or otherwise."         

       For the reasons aforementioned, the impugned judgments cannot be  sustained.  They are set aside accordingly.  The appeals are allowed.  No  costs.