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2005 DIGILAW 698 (GAU)

Ch. Lalnghakmawia v. State of Mizoram

2005-09-20

I.A.ANSARI, MAIBAM B.K.SINGH

body2005
JUDGMENT I.A. Ansari, J. 1. By order, dated 23.3.2004, the appellant was appointed to the post of Head Constable (Operator) against an existing vacancy in 'the Mizoram Police Radio Organisation. The appellant submitted his joining report on the very day on which the appointment Order was issued. However, barely four days thereafter, i.e., by order, dated 27.2.2004, issued by the Superintendent of Police, Wireless, Mizoram, the, said Order of appointment of the petitioner was cancelled. 2. Aggrieved by the said order, dated 27.2.2004, aforementioned, the petitioner came before this Court with a writ application, which gave rise to W.P.(C) No. 32 of 2004, wherein the petitioner/present appellant contended, inter alia, that cancellation of his appointment, without affording him any opportunity of showing cause or hearing, was illegal and the same may be interfered with. The State respondents resisted the writ petition by pointing out, inter alia, that the appointment of the petitioner was void ab initio, the same having been made in violation of the relevant Recruitment Rules as well as the Government c instructions contained in the Office Memorandum dated 21.8.1991, 23.11.1993,13.6.2000 and 11.7.2002, and, hence, the Order terminating the service of the petitioner being just and proper, the same may not be interfered with. By judgment and order, dated 29.3.2005, the learned Single Judge turned down the prayer of the petitioner on the ground, inter alia, that since the petitioner's appointment was de hors the rules, cancellation of his appointment by the State respondents cannot be termed as arbitrary or illegal. Dissatisfied with the rejection of the writ petition, the petitioner has preferred the present writ appeal. 3. We have heard Dr. C.V.L. Auva, learned Counsel appearing on behalf of the writ petitioner/appellant herein, and Mr. N. Sailo, the learned Govt. Advocate, Mizoram, appearing on behalf of the State respondents. 4. Before entering into the merit of this appeal, it needs to be noted that writ appeal is not really a statutory appeal preferred against the judgment and Order of an inferior Court to the superior Court. N. Sailo, the learned Govt. Advocate, Mizoram, appearing on behalf of the State respondents. 4. Before entering into the merit of this appeal, it needs to be noted that writ appeal is not really a statutory appeal preferred against the judgment and Order of an inferior Court to the superior Court. The appeal inter se in a High Court from one Court to another is really an appeal from one coordinate Bench to another co-ordinate Bench and it is for this reason that a writ cannot be issued by one Bench of the High Court to another Bench of the High Court, Thus, unlike an appeal, in general, a writ appeal is an appeal on principle and that is why, unlike an appeal, in an ordinary sense, such as, a criminal appeal, where the whole evidence on record is examined anew by the appellate Court, what is really examined, in a writ appeal, is the legality and validity of the judgment and/or Order of the Single Judge and it can be set aside or should be set aside only when there is a patent error on the face of the record or this judgment is against the established or settled principles of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever, appealing such a view may be to the Division Bench, it is the view adopted by the Single Judge, which should, normally, be allowed to prevail. 5. Coming to the facts and circumstances of the present case, what we notice is that the petitioner's appointment as Head Constable (Operator) is, admittedly, not in terms of the relevant Recruitment Rules and, in fact, in violation of the instructions issued in connection therewith, such as, the Office Memoranda aforementioned. In short, thus, the petitioner's appointment to the post of Head Constable (Operator), being de hors the rules, was illegal, arbitrary and, as noted by the learned Single Judge, "through the back door". The question, therefore, is as to whether such an appointment, if terminated by the State, shall be interfered with by a writ Court. 6. In short, thus, the petitioner's appointment to the post of Head Constable (Operator), being de hors the rules, was illegal, arbitrary and, as noted by the learned Single Judge, "through the back door". The question, therefore, is as to whether such an appointment, if terminated by the State, shall be interfered with by a writ Court. 6. It has been brought to our notice, on behalf of the appellant, that according to the statistics available, as may as 178 number of police personnel have been recruited without advertisement in the State of Mizoram between the year 2001 and 2005. By citing the gross violation of the Recruitment Rules in respect of appointment of police personnel by the State of Mizoram, it has been contended, on behalf of the appellant, that since the Government has ignored the relevant rules, while making as many as 178 appointments, it will not be fair and just to single out the case of the petitioner alone and remove him from service on the ground that his appointment was de hors the rules. The submission, so made on behalf of the appellant, appears, at the first blush, quite attractive. However, as a Court, exercising powers under Article 226 of the Constitution of India, we have to be conscious of the fact that a writ Court shall not direct any illegality to be perpetuated. With this view in mind, the Apex Court deprecated in Chandigarh Administration and Anr. v. Jagjit Singh and Anr. reported in [1995] 1 SCR 126, has held that the mere fact that an authority has passed a particular Order in the case of another person, similarly situated, cannot be made a ground for issuing a writ in favour of the petitioner on the plea of discrimination if the Order in favour of other the person is found to be contrary to law or not warranted in the facts and circumstances of his case. Noticing that the High Courts, in exercise of their writ jurisdiction, have been passing orders to remove discrimination and thereby asking the authorities concerned to repeat the illegality, the Apex Court has expressed its anxiety on such an approach and has laid down the position of law in Chandigarh Administration (supra) in the following words: 8. Noticing that the High Courts, in exercise of their writ jurisdiction, have been passing orders to remove discrimination and thereby asking the authorities concerned to repeat the illegality, the Apex Court has expressed its anxiety on such an approach and has laid down the position of law in Chandigarh Administration (supra) in the following words: 8. We are of the opinion that the basis of the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a title length. Generally speaking, the mere fact that the respondents-authority has passed a particular Order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The Order in favour of the Order person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the Order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted Order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat b the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law-indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/Order nor can such illegal Order constitute the basis for a legitimate complaint of discrimination. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/Order nor can such illegal Order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interests. It will be a negation of law and the rule of law. Of course, if in case the Order in favour of the other person if found to be a lawful and justified on it can be followed and similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court f to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the Order made or action taken in another person's case, which other person is not before the case nor is his case in our considered opinion, such a course-barring exceptional situations-would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular Order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an Order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments the Supreme Court and High Courts nor can they be elevated to the level of the precedent, as understood in the judicial world. (What is the position in the case of orders passed by authorities in exercise of their quasi-judicial power, we express no option. That can be dealt with when a proper case arises.) 7. (What is the position in the case of orders passed by authorities in exercise of their quasi-judicial power, we express no option. That can be dealt with when a proper case arises.) 7. It is, no doubt, true as projected on behalf of the appellant, that the present appellant is not the only one, whose appointment, as a member of the police force in the State of Mizoram, is illegal; but in view of the fact that the petitioner's appointment is arbitrary, de hors the rules, termination thereof could not have been interfered with by the writ court in the name of removing the discrimination, for, setting aside and or interfering with the termination of service of the petitioner would amount to commanding the State respondents to perpetuate illegality, which is impermissible under the law. 8. Turning, now, to the question as to whether this Court should have had interfered with the impugned Order terminating the service of the petitioner on the ground that the petitioner had not been afforded any opportunity of showing cause or hearing before his appointment came, to be cancelled, it may be noted that ordinarily, an order, which may adversely affect a person, shall not be passed, and, if challenged before a writ Court, shall not be allowed to survive if, while passing the order, the principles of natural justice have been given a go by. There was a time, as has been noted in M.C. Mehta v. State of T.N. and Ors. reported in (1996) 6 SCC 237, when, in the light of the position of law laid down in Ridge v. Boldwin, reported in (1963) 2 All ER 66 (HL), breach of the e principles of natural justice was, in itself, treated, as prejudice and no other 'de facto' prejudice needed to be proved. Over a period of time, however, adherence to this concept, which is popularly referred to as 'useless formality 'theory, has become an exception. That is to say, if the non-compliance and/or violation of the principles of natural justice in passing any Order has not caused any prejudice, interference with such an Order only on the ground of violation of principles of natural justice as a formality, is not warranted. That is to say, if the non-compliance and/or violation of the principles of natural justice in passing any Order has not caused any prejudice, interference with such an Order only on the ground of violation of principles of natural justice as a formality, is not warranted. This aspect of the matter has been taken note of in Mansoor AH Khan (supra), wherein observed and held the Apex Court as follows : - There can be certain situations in which an Order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example, where no prejudices is caused to the person concerned, interference under Article 226 is not necessary. In Ridge v. Boldwin, it was held that breach of principles of natural justice was in itself treated as prejudice and that no other 'de facto' prejudice need to be proved. But, since the rigour of the rule has been relaxed not only in England but also in India. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed by the Supreme Court on several cases. Since K.L. Tripathi case, the Supreme Court has consistently applied the principles of prejudice in several cases. The "useless formality" theory is an exception. Apart from the class of cases of "admitted" or undisputable facts leading only to one conclusion" as discussed in S.L. Kapoor v. Jag Mohan there has been considerable debate on the application of that theory in other cases. In the ultimate analysis, the applicability of the theory depends on the facts of a particular case. (emphasis is supplied by me) 9. From what has been pointed out by the Apex Court in Aligarh Muslim University (supra), it is clear that an administrative Order can be interfered with on the ground of breach of principles of natural justice provided that the non-compliance of the principles of natural justice has caused prejudice. It is also trite that prejudice has to be pleaded and proved by the person, who seeks relief on the ground of having suffered prejudice. 10. It is also trite that prejudice has to be pleaded and proved by the person, who seeks relief on the ground of having suffered prejudice. 10. In the case at hand, when the petitioner's appointment is, admittedly, de hors the rules, it logically follows that even if an opportunity of hearing had been given to the petitioner, the illegality committed in appointing him and the arbitrariness with which the petitioner's normal appointment suffered from, would have remained without being cured. In a situation, such as the present one, no prejudice can be said to have been caused to the petitioner when, his Order of appointment was cancelled by the impugned order, dated 27.2.2004, aforementioned. At any rate, when the learned Single Judge has chosen not to interfere with the impugned Order dated 27.2.2004, aforementioned and when we are satisfied that the omission to give notice to the petitioner before cancellation of his appointment has not caused any prejudice to the petitioner, the judgment and order, dated 29.3.2005, which has been appealed against, deserves, in our firm opinion, no interference at all. 11. We, therefore, find the appeal wholly without merit and same shall, accordingly, stand dismissed. 12. No costs. Appeal dismissed