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2008 DIGILAW 363 (GAU)

L. Suroliba Sangtam v. State of Nagaland

2008-05-21

P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. Heard Ms. V. Suokhrie, learned Counsel for the petitioners. Also heard Mr. B.N. Sarma, learned Senior Counsel appearing on behalf of the respondent authorities. 2. The writ petitioners numbering 70 claim that they were appointed as Constable by the Superintendent of Police, Kiphire, Nagaland in the month of November and December, 2005 after having been declared medically fit by the Medical Officer, Civil Hospital, Kiphire. The aforesaid appointment orders were kept in abeyance by an order dated 18.11.2005 issued by the Superintendent of Police, Kiphire till the additional fund under salary head is received from the Government. Subsequently, by an order dated 24.11.2005 issued by the Superintendent of Police, Kiphire, the earlier order of keeping the appointment orders in abeyance, were revoked. The petitioners, after the aforesaid revocation order, represented before the Director General of Police, Nagaland for release of their salaries; but the same were not paid to them. Aggrieved by the inaction by the state respondents they have approached this Court for payment of their salaries as per their service condition. 3. An affidavit-in-opposition has been filed on behalf of the official respondents by the Special Secretary to the Government of Nagaland, Home Department. In the counter affidavit, it has been stated, amongst other, that appointment orders were issued to the petitioners by Shri Lilongse Sangtam, the then Superintendent of Police, Kiphire without any sanction and without following any procedure. As a matter of fact, it is stated in the affidavit that the total strength of the Unit at all relevant times was and has been 108 and the strength of the constabulary was and has been 77 only and the strength was exceeded to the extreme in the private interest of the then Superintendent of Police, Kiphire. Having come to know about the illegality committed by the then Superintendent of Police, Kiphire, the Government initiated departmental proceedings against him and he was placed under suspension. Having come to know about the illegality committed by the then Superintendent of Police, Kiphire, the Government initiated departmental proceedings against him and he was placed under suspension. The new incumbent Shri K. Mero who joined as Superintendent of Police, Kiphire on 14.7.2006 reported the matter in details to his higher authorities by way of a report in which it was stated that while 169 excess appointments of Constables were made initially by Shri Lilongse Sangtam, the then Superintendent of Police, Kiphire, the same were followed by another 139 appointments of the same nature which included the appointments of the petitioners and as such the total illegal appointments come to 298. It has been clearly stated in the aforesaid counter affidavit that the then Superintendent of Police, Kiphire made the aforesaid appointments behind the back of the Nagaland Police Headquarters and the Government, although at the relevant time, there was no vacancy to accommodate the petitioners. Further, it is stated that there was no medical examination or test and similarly there was no physical examination or test conducted by the then Superintendent of Police, Kiphire, inasmuch as the medical test is to be conducted by the Regimental Medical officer, who is a member of the recruitment board and in the case of the present recruitment of petitioners, no such test was held. 4. It has been stated in the counter affidavit that the question of releasing salary to the petitioners does not arise since the appointments were made de hors the Rules and recruitment procedures. That apart, the petitioners were appointed in excess of the sanctioned strength of the Unit and there is no financial sanction or budgetary provision for such excess appointments. The petitioners have no right, legal or otherwise, to reap any benefit from the fraudulent or illegal action of an officer who had no power/authority to make the appointments in excess of the sanctioned strength and without following the due procedure for recruitment. 5. I have heard Mr. B.N. Sarma, learned Senior Counsel appearing on behalf of the respondent authorities. Mr. Sarma submits that once it is found that an appointment is found illegal and non est in the eye of law, the appointment authorities cannot be directed to pay the salary to the employee. In support of this submission, Mr. Sarma relies upon the case of R. Vishwanatha Pillai, appellant v. State of Kerala and Ors. Mr. Sarma submits that once it is found that an appointment is found illegal and non est in the eye of law, the appointment authorities cannot be directed to pay the salary to the employee. In support of this submission, Mr. Sarma relies upon the case of R. Vishwanatha Pillai, appellant v. State of Kerala and Ors. respondents as reported in AIR 2004 SC 1469 . Paragraph 17 of the aforesaid judgment rendered by the Supreme Court may be gainfully quoted below: 17. The point was again examined by a Full Bench of the Patna High Court in Rita Mishra v. Director, Primary Education, Bihar. The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held: (AIR p.32 para 13) 13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights, including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of the law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow from it. 6. Mr. Sarma, learned Senior Counsel for the respondent authorities submits that the appointment letters of the present petitioners have been cancelled by the Deputy Inspector General of Police, Police Headquarters, Nagalal vide order dated 28th May, 2007 and the copies of the cancellation orders were served on the petitioners individually. The petitioners have not come forward before the authorities concerned or before any forum challenging the aforesaid cancellation orders. The present application, in view of the cancellation of the appointment letters had become infructuous. 7. I have considered the submissions made by the learned Counsel for the parties. The petitioners have approached this Court for payment of their salaries. It is the well settled law that no salary can be paid to the employees whose appointments were made illegally or de hors the Rules. 7. I have considered the submissions made by the learned Counsel for the parties. The petitioners have approached this Court for payment of their salaries. It is the well settled law that no salary can be paid to the employees whose appointments were made illegally or de hors the Rules. In the present case, it is already established that the petitioners were appointed in excess of the total sanctioned strength and also without following the procedures laid down for recruitment. In view of the above, the appointments of the petitioners are non est in the eye of law and no order for payment of salary can be ordered. Accordingly, this petition dismissed. Petition dismissed.