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Gauhati High Court · body

2007 DIGILAW 657 (GAU)

Yangkhom Shyamkishore Singh v. State of Manipur

2007-09-28

MAIBAM B.K.SINGH

body2007
JUDGMENT Maibam B.K. Singh, J. 1. These cases, being WP(C) No. 212 of 2006, WP(C) No. 213 of 2006, WP(C) No. 214 of 2006, WP(C) No. 215 of 2006, WP(C) No. 216 of 2006 and WP(C) No. 938 of 2006, wherein common and related question of lows and facts are involved, have been heard jointly. 2. Being aggrieved by the order being No. DC/DRDA(IE)/1/51/2001 dated 1st March, 2006 of the Executive Director, DRDA, Imphal East District, by which promotions of the petitioners of WP(C) No. 212 of 2006 and WP(C) No. 216 of 2006 to the posts of Project Officer and Accounts Officer respectively of DRDA, Imphal East and regularization orders of the petitioners of WP(C) No. 213 of 2006, WP(C) No. 214 of 2006 and WP(C) No. 215 of 2006 in respect of some posts of DRDA, Imphal East District were cancelled purportedly on the recommendation of the State Vigilance Commission, Government of Manipur and direction of the State Government, the said writ petitioners have been filed praying mainly for quashing the said order dated 1.3.2006. In WP(C) No. 938 of 2006, the above said petitioners and others affected by the above said order of the Executive Director, DRDA, Imphal East District dated 1.3.2006 are praying for directing the respondents to release the withheld salaries of the petitioners with effect from April, 2006. 3. I have heard Mr. H.S. Paonam, Learned Counsel appearing on behalf of the petitioners, Mr. N. Kumarjit Singh, Learned Counsel appearing on behalf of the respondents 1 and 2 and Mr. R.K. Lalit Singh, Learned Counsel appearing on behalf of the respondent No. 3 in all the cases. 4. Facts and circumstances leading to the passing of the impugned order dated 1.3.2006 are clearly mentioned in the impugned order itself. A copy of the impugned order is at Annexure-A/17 of the writ petitions. The same is reproduced below for better appreciation of the cases: OFFICE OF THE DISTRICT RURAL DEVELOPMENT ACENCY: IMPHAL EAST DISTRICT:POROMPAT ORDERS Porompat, the 1st March, 2006. No. DC/DRDA(IE)/1/51/2001: Whereas, the State Vigilance Commission, Government of Manipur made a recommendation in consequence of vigilance enquiry No. 20/SP-V/2004 vide its letter dated 26th December, 2005. The contents of the recommendation which is self explanatory is reproduced herein below QUOTE No. 20/SP-V/2004/1555 Government of Manipur State Vigilance Commission, Directorate of Vigilance and Anti Corruption, Manipur. To The Commissioner (RD), Government of Manipur. The contents of the recommendation which is self explanatory is reproduced herein below QUOTE No. 20/SP-V/2004/1555 Government of Manipur State Vigilance Commission, Directorate of Vigilance and Anti Corruption, Manipur. To The Commissioner (RD), Government of Manipur. Subject: - Recommendation in consequence of Vigilance Enquiry No. 20/SP-V/2004. Sir, The above Vigilance Enquiry has been held in regard to the alleged irregularities in the appointments and promotions of some posts in the DRDA with special reference to Imphal East DRDA. In the course of the probe of the Enquiry his tenure as Executive Director, DRDA, Imphal East 2003-04, Y. Surchandra Singh, IAS regularized and promoted the following DRDA officials of the district in contravention of the 1999 DRDA Guidelines on Administration and without the Government's approval vide is orders No. DC/DRDA/IE/Estt/1/5/97 (Pt.I) 433 dated 5.2.2004. I Ad hoc and contract basis appointments of the following posts and persons were regularized. (i) I. Dilipkumar TA(WEW), (2) I. Joychandra Singh, TA(SEW), (3) Smt. E. Amita Devi, TA(SEW), (4) R.K. Romen Singh, P.E., (5) Kh. Jiten Singh, Accountant. II. N. Devendro Singh, Accountant and Y. Shyamkisliore Singh, P.O. i/c were promoted to the post of Accounts Officer and Project Officer respectively on regular basis. 2. There are also definite indications that apart from the aforementioned regularisation and promotions, many other appointments, regularizations and promotions have been made in the DRDA Imphal East and other districts of the State in contravention of the said 1999 Guidelines. 3. The said Guidelines state inter alia that DRDA should not have any permanent staff nor make any direct recruitment as contained in the Col. No. 4.2 of Chapter-IV of the Guidelines. Implicit in it is that there is no provision for promotion in the DRDA administration. Functionaries of the DRDA are to be manned by officials on deputation from the other cognate departments. 4. Government of Manipur vide its orders No. 1/17/91-Dev(MC)Pt. adopted the said Guidelines on DRDA Administration on 18th November, 2002. This commission therefore, recommends removal of all the direct recruitments/appointments and cancellation of the promotions in DRDA in the State after the adoption of the 1999 Guidelines on DRDA Administration by the State on 18th November, 2002, as they are viol alive of these Guidelines. adopted the said Guidelines on DRDA Administration on 18th November, 2002. This commission therefore, recommends removal of all the direct recruitments/appointments and cancellation of the promotions in DRDA in the State after the adoption of the 1999 Guidelines on DRDA Administration by the State on 18th November, 2002, as they are viol alive of these Guidelines. Similarly the orders issued by Y. Surchandra Singh, IAS as Executive Director, DRDA Imphal East Bearing No. DC/DRDA/IE/Estt./1/5/97 (Pt.I) dated 5.2.2004 regularizing the ad hoc/contract appointments of (1) I. Dilipkumar TA(WEW), (2) I. Joychandra Singh, TA(SEW), (3) Smt. E. Amita Devi, TA(SEW), (4) R.K Romen Singh, PE, (5) Kh. Jiten Singh, Accountant, and promoting N. Devendro Singh and Y. Shamkishore Singh, should be quashed and their respective status quo ante be maintained. And if appointments of the aforesaid seven officials of DRDA, Imphal East were made in contravention of the said Guidelines i.e., after 18th November, 2002, they should be removed from the service as well. Detailed report on action taken by the Department pursuant to this aforesaid recommendation be intimated to this Commission positively within 45 days from the date of receipt of this letter. Yours faithfully, Sd/- illegible (Ch. Birendra Singh) Director of Vigilance, Manipur UNQUOTE. 1. Whereas, the Secretariat, Rural Development Department (Monitoring Cell) vide its letter No. 2/56/2005-RD(MC) dated Imphal the 10th January, 2006 directed me to take necessary action for removal of all the direct recruitments/appointments and cancellation of the orders of promotion etc. in the DRDA, as recommended by the State Vigilance Commission. 2. Whereas on perusal of the relevant records, it is found that in respect of (1) I. Dipakumar TA(WEW), (2) I. Joychandra Singh, TA (SEW), (3) Smt. E. Amita Devi, TA(SEW), (4) R.K. Romen Singh, P.E., that an interim order was passed by the hon'ble Gauhati high Court, with reference to WP(C) No. 1521 of 2001 to the effect that they shall not be outsted from service. 3. Now, therefore, in view of the recommendation of the State Vigilance Commission the regularisation order (s) No. DC/DRDA/(IE)/Estt./l/5/97-Pt-I dated 5.2.2004 in respect of the five officials namely (1) I. Dilipkumar, TA(WEW), (2) I. Joychandra Singh, TA(SEW) (3) Smt. E. Amita Devi, TA(SEW), (4) R.K. Romen Singh, P.E., and (5) Kh. Jiten Singh is/are cancelled forthwith. 4. 3. Now, therefore, in view of the recommendation of the State Vigilance Commission the regularisation order (s) No. DC/DRDA/(IE)/Estt./l/5/97-Pt-I dated 5.2.2004 in respect of the five officials namely (1) I. Dilipkumar, TA(WEW), (2) I. Joychandra Singh, TA(SEW) (3) Smt. E. Amita Devi, TA(SEW), (4) R.K. Romen Singh, P.E., and (5) Kh. Jiten Singh is/are cancelled forthwith. 4. However, in view of the aforesaid interim order of hon'ble Gauhati High Court, the aforesaid three persons (1) I. Dilipkumar TA(WEW), (2) I, Joychandra Singh, TA(SEW), (3) Smt. E. Amita Devi, TA(SEW), shall continue to remain as Technical Assistant, Shri R.K. Romen Singh as Project Economist on ad hoc as they used to prior to their aforesaid regular ration. 5. Shri Kh. Jiten Singh, Accountant shall be as Accountant on contract basis as he used to he prior to their aforesaid regularization. 6. As regards the promotion of (1) Shri N. Debendro Singh to the post of Accounts Officer vide order No. DC/DRDA/(IE)/l/5/97-Pt.I dated 5.2.2004 is cancelled for with, and (2) Shri Y. Shyamkishore Singh to the post of Project Officer vide order No. DC/DRDA/(1E)/1/5/97-Pt.I dated 5.2.2004, is also cancelled fortieth. 7. These two officials. (1) Shri N. Debendro Singh and (2) Shri Y. Shyamkishore Singh shall continue to their service as Accountant and A.P.O./U.D.C. respectively as they used to be prior to their said promotions. Sd/- 1.3.2006 (K.K. Chhetry) Executive Director, DRDA/Imphal East District. The impugned order was passed alter receiving the recommendation made in consequence of Vigilance Enquiry No. 20/SP-V/2004 and in pursuance of the Government's direction vide letter No. 2/56/2005-RD/(MS)/516 dated 10.1.2006 of the Joint Secretary (DR&PR), Government of Manipur a copy of which is at Annexure-A/16 of the writ petition. It is to be noted that the said letter of the Joint Secretary (DR & PR) dated 10.1.2006 brought the recommendations made in consequence of Vigilance Enquiry No. 20/SP-V/2004 to the notice of the Deputy Commissioner/Executive Director, DRDA, Imphal-East and directed to take up follow up actions. There is nothing to show that any decision had been taken by the DRDA, Imphal East about the cancellation of the said promotions and regularization's made in the impugned order. In fact, there is no dispute that the Governing Body of DRDA, Imphal East had not also made any decision to cancel the said promotions and regularization's. 5. There is nothing to show that any decision had been taken by the DRDA, Imphal East about the cancellation of the said promotions and regularization's made in the impugned order. In fact, there is no dispute that the Governing Body of DRDA, Imphal East had not also made any decision to cancel the said promotions and regularization's. 5. The only point which is required to be decided in this case is if the said cancellation of the said promotions and regularizations of the petitioners by the Executive Director, DRDA, Imphal East District by issuing the impugned order in pursuance of the said direction of the Government dated 10.1.2006 and its reminders, vide letter No. 2/56/2005/RD(MS)/516 dated 25.1.2006 of the Commissioner (RD & OR), Government of Manipur was permissible in law or not. 6. From the preamble of the guidelines on DRDA Administration issued by the Ministry of Rural Development, Government of India, it is ascertained that the District Development Agency (DRDA) has traditionally been the principal organ at the District Level to oversee the implementation of different Anti-poverty Programme. Keeping in view the need for an effective agency at the District level to co-ordinate the anti-poverty effort, a new centrally sponsored scheme for strengthening the DRDA has been introduced with effect from 1st April, 1999. The Administrative costs are made by providing a separate provision. This scheme which is funded on a 75:25 basis between the centre and the States, aims at strengthening a professionalizing the DRDA. Role and functions of the DRDA, organizational structure of the DRDA, Administrative Costs, Personal Policy of the DRDA, Administration of DRDA, etc. are mentioned in the said guidelines. One of the relevant guidelines at Sl. No. 4.2 of the said guidelines is reproduced: - "4.2. As a matter of policy, the DRDA should not have any permanent staff. Taking employees on deputation to the DRDA for specific periods has the advantage of better choice of staff, flexibility in staffing pattern and of motivating the staff. The objective of strengthening of DRDA is to provide them with certain professional capacity and have a flexible staffing pattern. To start with DRDA shall no longer be allowed to make any direct recruitment. In support of the staff, i.e., currently horn on the DRDA, the State Rural Development Department should immediately draw up a 3-5 year Plan for absorption of the staff into the line Departments. 7. To start with DRDA shall no longer be allowed to make any direct recruitment. In support of the staff, i.e., currently horn on the DRDA, the State Rural Development Department should immediately draw up a 3-5 year Plan for absorption of the staff into the line Departments. 7. For effective implementation of programmes, a proper staffing pattern is provided. Staffing pattern of the DRDA is given in Chapter-11 of the Guidelines. As per organizational structure of the DRDA, each DRDA should be headed by a Project Director, who should be of the rank of an Additional District Magistrate and in some States, such as, Maharastra, the C.E.O. of the Zilla Parishad should be designated as the Project Director of the DRDA and each DRDA should have, (a) Self employee Wings; (b) Women's wing; (c) Wage employment wing; (d) Engineering Wing; (e) Accounts Wing; (f) Monitoring and Evaluation Wing and (g) General Administration Wing. 8. Though DRDA Imphal East was established as an Agency of District Level for overseeing the implementation of different Anti-Poverty Programmes taken up by the Central Government in co-ordination with the State Government, it is a Society registered under the Manipur Societies Registration Act, 1989. Being a Society registered under the above said Act, DRDA, Imphal East has a separate identity and existence in law. In other words, it has a distinct legal personality of its own. The relevant act and rules, i.e., the Manipur Societies Registration Act, 1989 and the Manipur Societies Registration Rules, 2004 as well as the Memorandum of Association and Regulations of the said Society will govern its functioning. The said Society, even though Government officials and Government's nominees are its members cannot be considered as a Department of the State Government. Employees of the said Society cannot be considered as employees of the State Government. As per Sl. No. 1.5 of the above mentioned guidelines of the Central Government also clearly states that a DRDA will maintain its separate identity. It is required that a DRDA will function under the Chairmanship of the Chairman of the Zilla Parishad. It is expected to be a facilitating and supporting organization to the Zilla Parishad, providing necessary executive and technical support in respect of anti-poverty reduction efforts. Wherever the Zilla Parishad is not in existence, or is not functional, the DRDA would function under the Collector/District Magistrate/Deputy Commissioner as the case may be. It is expected to be a facilitating and supporting organization to the Zilla Parishad, providing necessary executive and technical support in respect of anti-poverty reduction efforts. Wherever the Zilla Parishad is not in existence, or is not functional, the DRDA would function under the Collector/District Magistrate/Deputy Commissioner as the case may be. Even though the Chairman of the Zilla Parishad or the Collector/Deputy Commissioner, in case of non-existence or non-functional of the former, is required to be Chairman of the DRDA, its separate identity is required to be maintained. It is also to be noted that apart from the said Guidelines of the Central Government, under the relevant Act, Rules and Memorandum of Association, the DRDA, Imphal East has certain duties to be performed and certain responsibilities to be discharged on its own. Further, as per regulation No. 19 of the DRDA, Imphal East, save as expressly provided in the regulations as having to be passed by the Agency in a General Meeting, all the duties, powers, functions and rights whatsoever or consequential and incidental to the carrying out of its objectives shall only be exercised or performed by the Governing Body subject to such limitation as the Government of India Government of Manipur from time to time imposed in respect of the expenditure of its grant. It is seen that the Governing Body of the Agency (DRDA, Imphal East) has a very wide power in respect of carrying out of its objectives. The only limitation that can be imposed by the Government of India Government of Manipur on the power of the Governing Body of the Agency is in respect of the expenditure of its grants. No doubt, Central Government/the State Government having power to direct/order that its grant to the Agency should not be expended in paying salaries of any of the employee of the Agency and such a direction will be binding to the Agency but it is for the Governing Body of the Agency, after getting such an order, to decide as to what steps are to be taken up in pursuance of the direction of the Central or the State Government. There is no provision in the relevant Act, Rules, Memorandum of Association or Regulations governing the State Agency (the DRDA, Imphal East) to the effect that any order or direction of either the Central Government or the State in respect of the matters concerning the employees of the Agency shall be binding on its own force to the said Agency thereby treading as if the State Agency is not having any separate legal personality. In case of finding that an Agency has recruited its employees or given promotions to its employees in violation of the Guidelines of the Central Government, the Central Government, the State Government can certainly direct the Agency/DRDA to take necessary remedial steps. It is for the concerned Governing body of the Agency/DRDA to take a decision and issue necessary orders in that regard. Such a procedure will be legal and in consonance with the existence of a separate legal personality of the State Agency/DRDA. 9. In the present case, the impugned order dated 1.3.2006 was issued by the Executive Director, DRDA, Imphal East canceling the promotions and regularizations on the basis of the directions of the State Government dated 10.1.2006. There is nothing to show that the Executive Director, DRDA, Imphal East was authorized to issue the impugned order dated 1.3.2006 on behalf of the DRDA, Imphal East District under any provisions of the Act, Rules, Regulations and Memorandum of Association applicable to it. There is also nothing to show that any decision was made by the General Body or the Governing Body of the DRDA, Imphal East District for cancellation of the said promotions, etc. and also authorizing the Executive Director to issue the impugned order. In my considered opinion, the impugned order was passed without jurisdiction and in violation of the provisions of the Manipur Societies Registration Act, 1986, the relevant rules and relevant memorandum of association and regulations of the DRDA, Imphal East which was having a distinct legal personality of its own at the relevant time. 10. In the result, for the reasons given above, the impugned order dated 1.3.2006 is illegal, and as such it is not sustainable in the eyes of law. Accordingly, it is hereby quashed. 10. In the result, for the reasons given above, the impugned order dated 1.3.2006 is illegal, and as such it is not sustainable in the eyes of law. Accordingly, it is hereby quashed. The writ petitions are allowed to the extend mentioned below: The petitioners shall be treated as if the impugned order has not been passed and they shall be entitled to all the consequential benefits. However, it is made clear that this decision will not stand on the way of the DRDA, Imphal East or its Governing Body to take appropriate steps permissible in law in connection with compliance of the direction of the State Government/Central Government. At the same time, the Central Government or the State Government may also take any step permissible in law in case of failure on the part of the DRDA, Imphal East or its Governing Body to take proper steps. In view of the above findings, the petitioners of WP(C) No. 938 of 2006 shall also be entitled to the withheld salaries as prayed. With this, these writ petitions are disposed of. No order as to costs.