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1996 DIGILAW 148 (GAU)

Tosole Vitsu v. State of Nagaland

1996-07-08

W.A.SHISHAK

body1996
The petitioner was appointed as Assistant Presenting Officer (Class II) on casual basis in the Vigilance Commission for a period of 6 (six) months in the scale of pay of Rs.960 - Rs.1605 PM plus 25% of basic pay as Inner Line Compensatory Allowance and others allowances as are permissible under Rules from time to time in Nagaland. This appointment was issued by the Vigilance Commission by order dated 9th November, 1993. While continuing in the aforesaid post of APO the petitioner sometime in January, 1994 requested the Vigilance Commission to regularise her service as Assistant Presenting Officer in the State Vigilance Commission. Considering the request of the petitioner, the Vigilance Commissioner issued another order on 4th February, 1994 to the following effect: "Miss Tosolo Vitsu, APO (casual basis) is hereby temporary appointed as APO (Class III non gazetted) in the scale of pay of Rs.960-30-1110-35-1285-EB-40- 1650/- PM plus all other allowances as are admissible under rates from time to time in Nagaland with immediate effect. 2. The appointment is purely on temporary basis and terminable by one month's notice in writing from either side." 2. On 30th March, 1994 a letter addressed to the Editor of the Nagaland Post (a local daily) by one Temjen Longkumer was published under the caption 'Secret Interview'. It was stated in the said letter that in 1992 there was an advertisement to fill up the post of APO, but it was learnt that one person had been already appointed by the Vigilance Department and regularisation had already been issued. It was further stated in the said letter that the appointment to the post of the rank of APO/Inspector is within the purview of the NPSC. On 15th April, 1994, Secretary, NPSC wrote to the Secretary, Vigilance Commission regarding regular appointment to the post of Assistant Presenting Officer under Vigilance Commission. It was stated in the said letter that: "The Commission had advised you to fill up the post by short term appointment only vide this office letter of even number dated 21.9.1993. We have received more than 300 applications in response to the advertisement released by the Commission and the written examination for the same is Scheduled to be held early next month. We have received more than 300 applications in response to the advertisement released by the Commission and the written examination for the same is Scheduled to be held early next month. It is presumed that the present appointment shall be terminated as soon as Commission recommends a suitable name for this post on the basis of a combined competitive examination 1994." The appointment referred to above is in respect of the petitioner. 3. The petitioner by letter dated 6.5.94 sent a protest letter to the Vigilance Commissioner regarding the content of the letter written to the Commission by the Secretary, NPSC as stated above. However, in June, 1994 the following order of termination was issued by the Vigilance Commissioner : "As per Central Civil Services (Temporary Service) Rules, 1965 in Rule 5(1) (a) the service of Miss Tosole Vitsu, APO of the State Vigilance Commission Nagaland Kohima is hereby terminated with immediate effect. 2. She is allowed to draw one month's pay in lieu of one month's notice vide Rule 5 (1) (b) of the Central Civil Services (Temporary Service) Rules, 1965." 4. The petitioner contends that the action taken by the Vigilance Commissioner as advised by the NPSC is uncalled for inasmuch as the Vigilance Commission being an autonomous body and not a Government Department cannot be brought under the purview and jurisdiction of NPSC. It is further contended that the employees of the State Vigilance Commission are not Government servants and the posts held under the State Vigilance Commission do not come within the purview of the NPSC. It is further contended that under Article 320 of the Constitution, NPSC cannot exercise powers over any local authority or other bodies corporate or public institutions unless a statutory provision is made by the Legislature under Article 321 of the Constitution. It is also contended that even Regulation 3 of the Nagaland Public Service Commission (Limitation of Functions) Regulations, 1965 speaks of consultation only' and that too in relation to methods of recruitment of civil service and posts, or the suitability of the candidates for such appointment but does not refer to conduct of examinations for appointment. It is also contended that even Regulation 3 of the Nagaland Public Service Commission (Limitation of Functions) Regulations, 1965 speaks of consultation only' and that too in relation to methods of recruitment of civil service and posts, or the suitability of the candidates for such appointment but does not refer to conduct of examinations for appointment. It is also contended that in terms of sub-regulation (2) of Regulation 3 (1) it is provided that when an appointment is to be made to a post outside the cadre of any service and for which there is no recruitment rules and when the post is solitary and it is not practicable to frame recruitment Rules for the lone post, it shall not be necessary for the NPSC to be consulted. It is in this context the petitioner contends that the post is outside the cadre of any service, there is no recruitment rules, the post is solitary and therefore, it is not practicable to frame recruitment rules for the lone post and as such Regulation 3 (1) (2) of the said Regulation should apply. Another contention made by the petitioner is that the post held by her is not mentioned in the Schedule and the appointing authority is the Vigilance Commissioner and not the Governor and as such the present case is governed by the Regulation 3(1). 5. Mr. BN Sarma, learned counsel for the petitioner submits that while issuing the initial order of appointment of the petitioner as APO on casual basis on 9th November, 1993 and also the subsequent order of temporary appointment Issued on 4th February, 1994, the Commission was aware that such appointment could have been issued only by the Vigilance Commissioner and not through the NPSC. In this view of the matter, it is submitted by the learned counsel that the very fact that the post had been earlier advertised is illegal inasmuch as appointment to the post of APO would come within the purview of the Vigilance Commission only. It has also been contended that the impugned termination issued by the Vigilance Commissioner is bad inasmuch as the provisions of Central Services (Temporary Service) Rules, 1965 would not at all be applicable to the Vigilance Commission. It has also been contended that the impugned termination issued by the Vigilance Commissioner is bad inasmuch as the provisions of Central Services (Temporary Service) Rules, 1965 would not at all be applicable to the Vigilance Commission. It is further submitted that even if some advice have been tendered to the Vigilance Commission by the NPSC, such advice cannot be said to be binding upon the Vigilance Commission inasmuch as the Vigilance Commission has its separate entity within the meaning of Article 12 of the Constitution. It is submitted that the Vigilance Commission cannot be subordinate to any Department inasmuch as to do so will lose the independence ^ and autonomy of the Vigilance Commission. It has been contended that the State Public Service Commission and the State Vigilance Commission are on the same footing as far as autonomy and independence are concerned. As such the reliefs sought for in the present petition are that the letter issued by the NPSC on 15.4.1994 advising the Vigilance Commission to terminate the service of the petitioner as soon as recommendation of a suitable name is made and the c subsequent order dated 3.6.1994 issued by the Vigilance Commissioner should be set aside the quashed. 6. Counter affidavits have been filed on behalf of the NPSC and also on behalf of respondents 1 and 2.1 have heard Mr. BN Sarma, learned counsel for the petitioner, Mr. I. Jamir, learned Senior Govt Advocate and Mr. RS Bedi, learned counsel for the NPSC at length. Para 3 of the counter affidavit filed on " behalf of respondents 1 and 2 states that the post of APO was vacant under the Vigilance Commission and in order to fill up the said post a requisition was made on 15.9.1992. However, as NPSC could riot sent recommendation, Vigilance Commissioner wrote a letter to the NPSC to expedite the matter vide letter dated 5.5.93 and also another letter dated 9.9.93. According to this affidavit the petitioner was given appointment on casual basis for a period of 6 (six) months for the smooth functioning of the office. Even during that period no recommendation was received from the NPSC. "As a result the Department had given temporary appointment to the petitioner on 4.2.94. According to this affidavit the petitioner was given appointment on casual basis for a period of 6 (six) months for the smooth functioning of the office. Even during that period no recommendation was received from the NPSC. "As a result the Department had given temporary appointment to the petitioner on 4.2.94. This was done to allow the petitioner to continue till the Department receive recommendation from the NPSC for regular appointment." According to the respondents 1 and 2 the f Vigilance Commissioner has no authority to give regular appointment in the post of APO. According to the Mr. I. Jamir learned Senior Govt Advocate the Vigilance Commission has no jurisdiction to recruit an officer whose scale of pay exceeds Rs. 1445/-. The present scale of pay of APO is stated to be Rs. 1605/-. Para 10 of the counter affidavit of respondents 1 and 2 further states among other things : "The Commissioner is subordinate executively to the Government of Nagaland g and it is kept attached to Home Department vide Resolutaion No.5 of the Resolution No.CON.58/75 dated 9th April, 1976." It is further stated by Mr. Jamir that with regard to investigation of vigilance case the Commission is autonomous and independent, but it is not so in case of appointment of staff. 7. It appears one point that is to be considered is whether the autonomy of Vigilance Commission is only in respect of investigation and not in other matters including appointments of staff. At this stage it may be stated that obviously the staff of the Nagaland Public Service Commission are appointed by the Chairman. Some officers are drawn from different Departments of the Government. It appears, no Office Assistant or no officer upto the rank of Superintendent is appointed through Public Service Commission. In otherwords the entire staff is appointed by the Commission itself. Of course Secretary of the Public Service Commission is brought from another Govt Department from time to time. At the same time it appears, the Secretary of NPSC is not really of the rank of a Secretary of a Government Department. At the same time, it is clear that Nagaland Public Service Commission is not a Government Department as such. It has its own independent entity. In otherwords Nagaland Public Service Commission is I an autonomous body having its independent function. 8. At the same time, it is clear that Nagaland Public Service Commission is not a Government Department as such. It has its own independent entity. In otherwords Nagaland Public Service Commission is I an autonomous body having its independent function. 8. The affidavit filed on behalf of the NPSC simply supports the action it has already taken as regards the requisition and also the manner in which advertisement is to be made and the selection to be followed. Although every communication with the Vigilance Commission is stated to have made according to "the requirements of rules" no rule as such has been produced before this Court at the time of hearing. On careful perusal of the affidavits filed on behalf of the parties and also the various documents relating to the appointment of Assistant Presenting Officer, it appears to me that, except in the present case such post was not filled up in consultation with the State Public Service Commission. Of course a plea has been taken on behalf of the Government that because of the scale of pay, the post should necessarily by recruited through the State Public Service Commission. 9. The matter concerns autonomy of Vigilance Commission. By Resolution dated 9th April, 1976, State Vigilance Commission was established. Para 3 states: "The State Vigilance Commission shall have jurisdiction over public corporation, statutory bodies and undertaking in the jurisdiction of the Commission." Para 4 is as regard the State Vigilance Commissioner. Para 4 (a) states that the Vigilance Commissioner "will be appointed by the Governor normally from among retired Judges of High Courts or retired Senior/Executive Officers". It further states that Commissioner will hold office for a term of five years or till he attains the age of 65 years whichever is earlier. It further states that the Vigilance Commissioner "will not be removed or suspended from office except in the manner provided for removal or suspension of Chairman or a member of the State Public Service Commission under Article 317 of the Constitution." It further contemplates that on ceasing to hold the office of the State Vigilance Commissioner, one shall not accept any further employment under the Union or a State Government or accept any political public office except in accordance with Article 319 of the Constitution. It is further stated "the State Vigilance Commission will, for the present, be attached to the Home Department, but in exercise of its powers and functions it will not be subordinated any Department and will have the same measure of independence and autonomy as the State Public Service Commission". It is also further contemplated that "the State Vigilance Commission will be provided with such staff as may be necessary for the proper discharge of its duties and responsibilities." 10. Mr. I. Jamir, learned Senior Govt Advocate submits that Vigilance Commission is also a Govt Department inasmuch as the Commission has been placed under Personnel and Administrative Reforms Department. At this stage it may be stated that it is the submission on behalf of the petitioner that since the State Vigilance Commission has to function within the State of Nagaland, it must have administrative relationship with the State Department. However, this does not mean that the Vigilance Commission comes under the control of any State Department. It has been submitted further on behalf of the petitioner that , all matters relating to High Court and other Courts are also to be dealt with by the Law Department in terms of the Rules of Executibe Business of the State of Nagaland. This, however, does not mean that the High Court is under Law Department of the State of Nagaland. The link established between the High Court and the Law Department is for convenience of Administration of Justice. The question of subordination of the High Court to a Government Department i does not arise. In like manner it is argued that subordination of the State Vigilance Commission too to a Government Department, such as Personnel and Administrative Reforms of the Govt of Nagaland would not arise. The State Vigilance Commission has not been listed in the Rules of Executive Business as a Government Department. As such it is submitted that even deputationists are appointed by the Vigilance Commission and not by the Govt of Nagaland as it is done in case of the State Public Service Commission. 11. This matter has landed up in a peculiar situation. In the present case the Commission has not been consulted nor has it been requested to render any help in the matter of recruitment of its staff. It appears the State Service Commission has volunteered to suggest certain method of recruitment to the Vigilance Commission. 11. This matter has landed up in a peculiar situation. In the present case the Commission has not been consulted nor has it been requested to render any help in the matter of recruitment of its staff. It appears the State Service Commission has volunteered to suggest certain method of recruitment to the Vigilance Commission. It is contended oh behalf of the petitioner that the step taken by the State Public Service Commission in regard to the recruitment of the post of APO is on the basis of the letter which was published in the newspaper. It is the further contention of the petitioner that State Vigilance Commissioner is not a Govt servant and as such the employees of the Commission cannot be said to be State employee. The petitioner's contention is that application for appointment . to the post was made to the Vigilance Commission and not to the State Govt. At one stage it was suggested that the learned counsel for the State Public Service Commission should furnish a copy of staff pattern of the Commission including scales of pay, designations etc. Unfortunately no such information has been furnished to this Court. 12. On careful perusal of the pleadings of the parties and the submissions made at the Bar, it appears that admittedly Vigilance Commissioner is not a Government servant/State employee inasmuch as he cannot be said to be under a State Department. It has not really been challenged that Vigilance Commission has no authority to appoint its staff. It seems to me that it is for the Vigilance Commission to see as to how its staff will be appointed inasmuch as only Commission has the absolute control and authority over its staff. 13. In the facts and circumstances that 1 have discussed above, it appears to me that the State Vigilance Commission is on the same footing as the State Public Service Commission as regards its autonomy and also as regards the power and jurisdiction to make appointment of its staff. In my view State Vigilance Commission cannot be considered to be another Government Department of the State of Nagaland. If that is so the petitioner's service could not have been terminated under Central Civil Services (Temporary Service) Rules, 1965. 14. The result is that this writ petition succeeds. The impugned order of termination dated 3rd June, 1994 is quashed and the Rule is made absolute. If that is so the petitioner's service could not have been terminated under Central Civil Services (Temporary Service) Rules, 1965. 14. The result is that this writ petition succeeds. The impugned order of termination dated 3rd June, 1994 is quashed and the Rule is made absolute. Petition is disposed of.