Manipur & Ors Vs.
Y. Token Singh & Ors  Insc 177 (20 February 2007)
S.B. Sinha & Markandey Katju
[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 :
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 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.
Further, they are posted at the
places indicate against their names:- *** *** ***
The expenditure is debitable under Appropriate Heads of Accounts of the
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
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
"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 respondents, he
affirmed in their support an affidavit in the High Court stating:
"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.
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 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:
The principles of natural justice
having not been complied with, the impugned orders cannot be sustained.
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."
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
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
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.
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
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:
"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.
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:
"The reliance placed by the respondents in this behalf on Shrilekha
Vidyarthi v. State of U.P. is 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"
[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:
"The 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 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"
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 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:
"It 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"
In Bar Council of India v. High Court of Kerala [(2004) 6 SCC 311], it was
"Principles of natural justice, however, cannot be stretched too far.
Their application may be subject to the provisions of a statute or statutory
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.
Pages: 1 2