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2009 DIGILAW 27 (GAU)

Oinam Nimai Singh v. Ningthoujam Jayanta Singh

2009-01-16

MAIBAM B.K.SINGH, T.NANDAKUMAR SINGH

body2009
JUDGMENT T. Nandakumar Singh, J. 1. Heard Mr. H.S. Paonam, learned Counsel appearing for the Appellant, Mr. Chonjon, learned Counsel for Respondent/writ Petitioner and also Mr. Jalal, learned G.A. appearing for the State Respondents. 2. The present writ appeal is filed by the third party i.e. present Appellant who is admittedly working as Assistant in the DRD A, Bishenpur, after obtaining leave against the impugned judgment and order of the learned Single Judge dated 8.1.2008 allowing the W.P.(C) No. 1029 of 2006 filed by the Respondent/writ Petitioner, Shri Ningthoujam Jayanta Singh, assailing; (1) the letter of the Director of Vigilance, Manipur being No. 36/SP-V/ 2005/8, Imphal, the 6th February, 2006, directing the Commissioner, (RD & PR), Government of Manipur to take necessary action for removal of all direct recruit/promotee and cancellation of the appointment order or/promotion as were made in violation of the guideline of DRD A adopted by the Government of Manipur, (2) order of the DC/Chief Executive Director, DRDA, Bishenpur, dated 30.08.2006 for reverting Respondent/writ Petitioner to his original post of Assistant as his appointment on promotion was not made by following the rules and without approval of the Government with immediate effect; and (3) order of the DC/Executive Director, DRDA, Bishenpur, for reverting the Respondent/writ Petitioner to his original post of Assistant as his promotion to the post of APO was made without following the Rules for appointment by promotion and without formal approval of Administrative Department and against the non-existent post of APO in the DRDA-Bishenpur. 3. The admitted fact which would be sufficient for deciding the present appeal is recapitulated. The DRDA, Bishenpur is an agency registered under the Manipur Societies registration Act for overseeing the implementation of different anti poverty programmes taken up by the Central Government in coordination with the State Government. The Central Government sponsored different schemes which are being implemented by the Bishenpur, DRDA and these schemes are funded by the Central Government as well as by the State government. The central government issued guidelines from time to time for implementation of the schemes. Admittedly, the guidelines of DRDA administration 2002 was adopted by the Government of Manipur on 8.11.2002 and also these guidelines which had been adopted by the Government of Manipur are to be strictly followed by the DRDA, Bishenpur and other agencies i.e. different DRD As under the Government of Manipur. 4. Admittedly, the guidelines of DRDA administration 2002 was adopted by the Government of Manipur on 8.11.2002 and also these guidelines which had been adopted by the Government of Manipur are to be strictly followed by the DRDA, Bishenpur and other agencies i.e. different DRD As under the Government of Manipur. 4. Para 4.2 and 4.3 of the said guidelines on DRDA Administration read as follows: 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 DRD As is to provide them with certain professional capacity and have a flexible-staffing pattern. To start with, DRD As shall No. longer be allowed to make any direct recruitment. In respect of the Staff that is currently Dome 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. 4.3 The Project Directors, Project Officers, AP Os and all technical posts are to be manned by officer with proven capability and motivation and are selected in an objective manner by specific Selection Committees. The Project Directors should be selected by a Committee headed by the Chief Secretary/Development Commissioner/Addl. Chief Secretary of the State and with the Secretary (RD) being the member convenor. Similarly, for officers at the level of AP Os and other technical officers, there should be a Selection Committee headed by Secretary (RD). For other staff too, other than ministerial and lower rank, the selection should be by an appropriate selection committee. 5. The para 4.3 of the Guidelines on DRDA Administration contemplates the composition of the selection committee for appointment to the post of Project Director, Project Officer, AP Os and other technical posts; and the selection committee for the posts of Project Director and Project Officer should be headed by the Chief Secretary/Development Commissioner/Additional Chief Secretary of the State and the Secretary (RD) being member convenor. But for the post of AP Os selection committee should be headed by the Secretary (RD). 6. But for the post of AP Os selection committee should be headed by the Secretary (RD). 6. Admittedly the Respondent/writ Petitioner, Shri N. Jayanta Singh was appointed by promotion to the post of APO on the recommendation of the selection committee, chaired by the DC/Executive Director, DRDA and consisting of AC/CEO/Bishenpur and SDO, Bishenpur, in its meeting held on 29.1.2005 vide appointment order being No. PO/DRDA (Bpr)/3(Vol-IV)/04 Bishenpur, 29.01.2005 issued by the DC/Executive Director, DRDA. 7. The Director of Vigilance, Manipur in his letter dated 6.2.2008 (impugned letter) clearly mentions that vigilance enquiry has been held in regard to the alleged irregularities in the appointment of the APO in the DRDA, Bishenpur; and in the course of enquiry it has been well established that during the tenure of Robert Disinang, Executive Director, Bishenpur issued promotion order of Shir N. Jayanta (Respondent/writ Petitioner) as APO vide order dated 29.1.2005 by violating the para 4.3 of the Guidelines on DRDA administration and recommended the Commissioner (RD & PR) for taking necessary action for removal of all direct recruits/appointees which were made in violation of the guidelines. Pursuant to the said letter of the Director, Vigilance Manipur 6.2.2008 the State Government had taken necessary steps by directing the DC/Executive Director, DRDA, Bishenpur to issue necessary order for cancellation of the appointment/promotion including the appointment by promotion to the post of APO, which was made in violation of the guidelines of the DRD A Administration. Pursuant thereto the DC/Executive Director, DRD A issued the impugned order dated 30.08.2006 and order dated 17.10.2006 for reverting the Respondent /writ Petitioner Shri N. Jayanta Singh to his original post of Assistant with immediate effect as his promotion was made without following the rules of appointment by promotion and without formal approval of the administrative department and also against the non-existent post of APO in the DRDA, Bishenpur. A copy of the DPC proceeding for recommending the Petitioner to the post of APO is available at page 107 of the memo of appeal and it is clear that composition of the DPC are: (1) DC Executive Director, DRDA; (2) AC/CEO Bishenpur and SDO Bishenpur. A copy of the DPC proceeding for recommending the Petitioner to the post of APO is available at page 107 of the memo of appeal and it is clear that composition of the DPC are: (1) DC Executive Director, DRDA; (2) AC/CEO Bishenpur and SDO Bishenpur. As stated above, as per para 4.3 of the guidelines on DRDA Administration which had been admittedly adopted by the State Government and also followed by the DRDA, Bishenpur, the selection committee for appointment to the posts of officer at the level of APO and other technical officers should be headed by the Secretary (RD & PR) Manipur and therefore, it is crystal clear that the said composition of the DPC which recommended the Respondent/writ Petitioner for appointment to the post of APO is not in consonance with the composition of the selection committee for the post of APO mentioned in para 4.3 of the guidelines on DRDA Administration which had been quoted above. 8. Mr. Jalal, learned G.A. appearing for the Respondents by referring to the decision of the Apex Court in Mahendra L. Jain and Ors. v. Indore Development Authority and Ors.: AIR 2005 SC 1252 contends that the appointment made without following the rules is void-ab-initio, therefore, the appointment of the Respondent/writ Petitioner by promotion to the post of APO on the recommendation of the selection committee which was not properly constituted is void-ab-initio. Para 18 in Mahendra L. Jain's case read as follows: 18. The posts of Sub Engineers in which the Appellants were appointed, it is nobody's case, were sanctioned ones. Concededly, the Respondent Authority before making any appointment neither intimidated the Employment Exchange about the existing vacancies, if any, nor issued any advertisement in relation thereto. Indisputably, the conditions precedent for appointment of the officers and servants of the Authority, as contained in the Service Rules had not been complied with. The appointments of the Appellants were, therefore, void-ab-initio being opposed to public policy as also violative of Articles 14 and 16 of the Constitution of India. 9. Indisputably, the conditions precedent for appointment of the officers and servants of the Authority, as contained in the Service Rules had not been complied with. The appointments of the Appellants were, therefore, void-ab-initio being opposed to public policy as also violative of Articles 14 and 16 of the Constitution of India. 9. The learned Single Judge by the impugned judgment and order dated 8.1.2006 had allowed the writ petition filed by the Respondent/writ Petitioner by setting aside the said impugned order dated 30.08.2006 and 17.10.2006 for reverting the Respondent/writ Petitioner to the original post of Assistant only for the reason and finding that the other officers who were appointed to the post of AP Os and others on the recommendation of the DPC headed by the DC/Executive Director, DRDA, Bishenpur have not been reverted by the State Government to their original post but the Respondent/writ Petitioner alone had been picked up and reverted to his original post and it is discriminatory and violative of Article 14 of the Constitution of India. 10. It is fairly well settled principles of law that 'two wrong never make a right'. Reference may be made to the decision of the Apex Court in GV. Ramanaiah v. The Superintendent of Central Jail, Rajahmundry and Ors. AIR 1974 SC 31 . The Apex Court in Harpal Kaur Chahal (Smt.) v. Director, Punjab Instructions, Punjab and Ann: 1995 Supp. (4) SCC 706 held that 'illegality once committed cannot be pleaded to legalise other illegal acts, and applying a wrong test found certain ineligible candidates to be eligible and upheld their appointment, such illegal appointment cannot be extended to other candidates by invoking the equity clause i.e. Article 14 of the Constitution of India. It is also equally well settled that illegal order cannot be the precedent and also that illegal/unwarranted orders cannot be the basis to compel the authority to repeat that illegality over again and again. Ref: Chandigarh Administration and Ann v. Jagjit Singh and Anr. AIR 1995 SC 705 . 11. Mr. Paonam, learned Counsel for the Petitioner has placed heavy reliance on the decision of the Apex Court in Bihar Public Service Commission and Ors. Ref: Chandigarh Administration and Ann v. Jagjit Singh and Anr. AIR 1995 SC 705 . 11. Mr. Paonam, learned Counsel for the Petitioner has placed heavy reliance on the decision of the Apex Court in Bihar Public Service Commission and Ors. v. Kamini and Ors.: 5 SCC 57 P wherein the Apex Court held that "equality doctrine" cannot be invoked to perpetuate the illegality merely because in the remote past some candidates possessing a particular qualification had been erroneously considered by Public Service Commission to be eligible for a post. Para 10 of the see in Bihar Public Service Commission's case (supra) read as follows: 10. In our opinion, the submission of the learned Counsel for the Commission is well founded and must be accepted. Therefore, even if in 1993, some ineligible candidates were wrongly treated as eligible, the first Respondent cannot insist that she also must be treated eligible though she is ineligible. In our considered opinion, such an action cannot give rise to equality clause enshrined by Article 14 of the Constitution. It is well settled and needs no authority that misconstruction of a provision of law in one case does not give rise to a similar misconstruction in other cases on the basis of doctrine of equality. An illegality cannot be allowed to be perpetuated under the so-called "equality doctrine". That is not the sweep of Article 14. Even that contention, therefore, has not impressed us. 12. In the above factual background and keeping in view of the ratio laid down by the Apex Court in the cases discussed above, we are constrained to observe that the illegal appointment of the Respondent/writ Petitioner to the post of APO by promotion on the recommendation of the selection committee which was not properly constituted cannot be made legal one only on the ground that appointment of the other officers of the rank of APO on the recommendation of the DPC which was not properly constituted are not disturbed by the official Respondents. And further we are also of the considered view that the impugned order for cancelling the appointment of the Respondent/writ Petitioner to the post of APO on the recommendation of the selection committee, composition of which is in total infraction of the composition mentioned in para 4.3 of the guidelines on DRDA Administration are not called for interference. And further we are also of the considered view that the impugned order for cancelling the appointment of the Respondent/writ Petitioner to the post of APO on the recommendation of the selection committee, composition of which is in total infraction of the composition mentioned in para 4.3 of the guidelines on DRDA Administration are not called for interference. Accordingly, the writ petition i.e. W.P.(C) No. 1029 of 2006 is devoid of merit and also that the reasons mentioned in the impugned judgment and order of the learned Single Judge dated 8.1.2008 for interfering with the impugned cancellation order only on the ground that the other illegal appointees/officers are not reverted to their original post is not sustainable in the eye of law. For the reasons discussed above, the impugned judgment and order of the learned Single Judge dated 8.1.2008 passed in W.P.(C) No. 1029 of 2006 and the judgment and order dated 21.02.2008 passed in Review Petition No. 4 of 2008 (Ref: W.R.(C) No. 1029 of 2006) are set aside and the writ appeal is allowed. In consequence thereto the W.P.(C) No. 1029 of 2006 is dismissed. Appeal dismissed