STATE OF MANIPUR AND ORS. v. Y. TOKEN SINGH AND ORS

Citation: [2007] 2 S.C.R. 965

Court: Supreme Court of India

Bench: S.B. SINHA, MARKANDEY KATJU

Case summary

STATE OF MANIPUR AND ORS. v. Y. TOKEN SINGH AND ORS.pdf

Judgment text

" - STATE OF MANIPUR AND ORS. --'r v. Y. TOKEN SINGH AND ORS. FEBRUARY 20, 2007 [S. B. SINHA AND MARKANDEY KATJU, JJ. ] Service Law: - ~ Constitution of India, 1950: Articles 14, 16 and 309.

Revenue department-Field staff -Appointments of -Without the knowledge ofthe State Government-Validity of-No recruitment rules framed for appointment in the Revenue department particularly the field staffthereof -The Commissioner (Revenue) allegedly appointed some persons to the posts of Mandols, Process-Servers and Zilladars which was not within the knowledge of the State Government-The said appointments were made on a temporary basis-No record in regard to the said appointments was ~ maintained-Subsequently, the Commissioner denied having made the said appointments-Hence, the said appointments were cancelled-However, the • High Court allowed the writ petitions filed by the said persons on the ground that the principles of natural justice were not complied with-Correctness of-Held: Although the State had not framed any recruitment rules in terms ofthe proviso appended to Article 309, 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-The purported appointment letters were fake ones-They were not issued by any authority competent -\ therefor-Jn a case ofthis nature, where the facts are admitted, the principles ~~ ofnaturaljustice were not required to be complied with-High Courtjudgment set aside.

The State Government 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 ,.. the power of being the cadre controlling authority for non-ministerial post of the Revenue Department. He was also the Chairman of the Departmental promotion Committee for non-ministerial post of the Revenue Department. .. 965 y ":> The Commissioner allegedly appointed the respondents to the posts of ,--. _ Mandols, Process-Servers and Zilladars which was not within the knowledge ' of the State. The said appointments were made on a temporary basis. 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. The Commissioner (Revenue) denied having made any appointment of field staffs of the Revenue Department.

In view of the stand taken by the Commissioner (Revenue), the offers of appointment issued in favour of the respondents were cancelled. >- The writ petitions filed by the respondents were allowed by the High Court on the ground that the principles of natural justice having not been complied with, the impugned orders could not be sustained. Hence the appeal. Allowing the appeal, the Court HELD: 1. 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 Ipersons eligible thereof. (Para 141 2. 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.

Although 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 ofthe provisions contained in Articles 14 and 16 of the Constitution oflndia: [Para 15) t 3. The offers of appointment issued in favour of the respondents were cancelled inter alia on the premise that the same had been done without the knowledge ? fthe Revenue Department of the State. No records therefor were available with the State. An inquiry had been made wherein 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 ofappointment ""' were cancelled not on the ground that some irregularities had been committed in the process of recruitment hut 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. (Para 161 .. STATE OF MANIPUR v. Y. TOKEN SINGH 967 4. 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 bonafide. [Para 17] 5. Moreover, it was for the respondents who had filed the writ petitions to prove existence of a legal right in their favour. They had inter a/ia 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 establishing 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. [Para 18] Kendriya Vidyalaya Sangathan v. Ajay Kumar Das, [2002] 4 SCC 503, Parshotam Lal Dhingra v. Union ofIndia, AIR (1958) SC 36 and Murugayya Udayar v. Kothampatti Muniyandavar Temple by Trustee Pappathi Ammal, (1991] Supp. 1 SCC 331, referred to. 6.

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 nothing on record to show who its members were and how and at whose instance it was constituted. The Commissioner was the Chairman of the DPC. How the matter was referred to the DPC has not been disclosed. Even the affidavit affirmed by the then Commissioner (Revenue) before the High Court in this behalf is silent. [Para 20] 7. The appointing authority, in the absence of any delegation of power ~ ~ having been made in that behalf, was the State Government. The Government Order did not delegate the power of appointment to the Commissioner. He, 'f therefore, was wholly incompetent to issue the appointment letters. (Para 211 State ofU. P. v. U. P.

State Law Officers Association, (1994( 2 SCC 204, Dhirender Singh v. State ofHaryana, (199712 SCC 712, MC. Mehta v. Union ofIndia, [1999) 6 SCC 237, Bar Council ofIndia v. High Court ofKera/a, [2004) 6 S 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. )- 19. 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. 20. The term "DPC" would ordinarily mean the Departmental Promotion Committee. The respondents had not been validly appoiqted 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 noth1g on record to show who were its members and how and at whose instance it was constituted. The STATE OF MANIPURv. Y. TOKEN SINGH (S. B. SINHA, J. ] 975 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. 21. 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. • - --f' 22. 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). 23. We, as noticed hereinbefore, do not know as to under what circumstances the orders of appointments were issued. 24. 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. 25.

In Kumar/ 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 p 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. " 26.

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. 27. We may, on the other hand, notice that Kumari Shrilekha Vidyarthi (supra) has been distinguished by this Court in State ofU. P. and Ors. v. U. P. State Law Officers Association and Ors. , [1994) 2 SCC 204 stating: "... The reliance placed by the respondents in this behalfon Shrilekha, Vidyarthi v. State ofU. P. , is misplaced for the obvious reason that the decision relates to the appointment ofthe Distr. ict 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 ofwork 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 STATEOFMANJPUR v. Y. TOKEN SINGH [S. B. SINHA, J.

] 977 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 andfor no other consideration, they are entitled to continue in their office for the period ofthe contract oftheir 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 addedJ 28. 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 (I) 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 (I) 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... " 29. In Dhirender Singh and Ors. v. State ofHaryana and Ors. , [1997] 2 sec,712, termination ofan order ofpromotion in favour ofthe appellant was not interfered with by this Court as the same had not been approved by the DIG, being the competent authority. 30. In MC. Mehta v. Union ofIndia and Ors. , [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 ofthe 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 ofthe useless formality theory has been made much earlier in Natural Justice, Substance or Shadow by Prof. D. H. Clark of Canada (see J975 PL, pp. 27-63) contending that Malloch and Glynn were wrongly decided. Foulkes (Adrninistrative 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 decisionmaking authority. de Smith (5th Edn. , 1994, paras I0. 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 STATEOFMANIPUR v. Y. TOKEN SINGH [S. B. SINHA,J. ] 979 injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank ofPatiala v. S. K. Sharma, Rajendra Singh v. State ofM. 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. " 31. In Kendriya Vidyalaya Sangathan (supra), it was held: - -f· "...... 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" 32. In Bar Council ofIndia v. High Court ofKera/a, [2004] 6 SCC 311, it was stated: "... Principles of natural justice, however, cannot be stretched too far. Their application may be subject to the provisions of a statute or statutory rule. " 33. In RS. Garg v. State ofUP. and Ors.

, [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. " 34. For the reasons aforementioned, the impugned judgments cannot be sustained. They are set aside accordingly. The appeals are allowed. No costs. v. s. s. Appeals allowed.