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2009 DIGILAW 70 (GAU)

Lisepi Sangtam v. State of Nagaland

2009-02-02

UTPALENDU BIKAS SAHA

body2009
JUDGMENT U.B. Saha, J. 1. As the facts of the case and the questions arose for decision are almost the same, both the writ petitions are taken together for hearing and disposal. 2. Heard Mr. C.T. Jamir, Learned Counsel for the petitioners and Mr. B.N. Sarma, Learned Senior Counsel assisted by Mr. Apok Pongener, Learned Counsel for the respondents. 3. In WP(C) 201 of 2007, the petitioners are twenty-six in number and in WP(C) 200 of 2007, the petitioners are fifteen in number. Writ petitioners in both the cases claim that they were appointed as constable (G D) on regular basis by the Superintendent of Police, Kiphire, Nagaland after all of them were found physically fit by the Medical Officer, Civil Hospital, Kiphire. Similar appointment orders were issued separately to the petitioners in the month of October and November, 2005. Subsequently, by an order dated 1.8.2006 issued by the Superintendent of Police, Kiphire, Nagaland, all those appointment orders were kept in abeyance. Thereafter, by order dated 24.10.2006, the earlier order dated 1.8.2006 was revoked. Consequently, the petitioners approached the respondent authorities to release their salaries, but the same were not paid to them. Aggrieved by the said action of the" respondents authorities, they approached this Court by filing the aforesaid two writ petitions, for payment of their salaries as per their service condition. 4. The State respondents by filing their counter-affidavit denied the whole allegations contending, inter alia, that the alleged appointment letters were issued by one Lilongse Sangtam, the then Superintendent of Police, Kiphire without following any procedure for recruitment of the constables laid down by the State Government and the alleged appointments were also beyond the sanctioned strength of constabulary in the District. It is also contended that Lilongse Sangtam, the then S.P. acted beyond his jurisdiction and issued appointment letters violating the Government Circular dated 23.12.1995 (Annexure-R-2 to the counter-affidavit) wherein it has been specifically mentioned that Unit Commander should form a Board of Officers of his unit to conduct such recruitments in which invariably the RMO of the Unit should be included. The District Ss.P. may requisition the service of the Battalion RMO whenever required and the recruitment of the constable should take place only once a year and at no other point of time piecemeal recruitments should be made even in the event of any vacancy arising through discharge, dismissal or death and the PHQ should be informed the date and time when such recruitments is to be carried out and accordingly the Unit Commander should make wide publicity for recruitment so that the Department can have best available material for such recruitments. In the instant case, the alleged appointing authority, Mr. Lilongse Sangtam did not take any step prescribed by the aforesaid circular dated 23.12.1995 (Annexure R-2) issued by the Director General of Police, Nagaland, Kohima, It has also been mentioned in the counter-affidavit that the appointment orders of the petitioners were made not for the public interest, but for the personal interest of Mr. Lilongse Sangtam, the then S.P. violating the public employment policy, for which, the Government initiated a disciplinary proceeding against him on the charge of making illegal and fraudulent appointment of constables like the petitioners in the District Executive Force, Kiphire in absence of sanctioned strength, but during the course of the said proceeding, Mr. Sangtam expired for which, the said proceeding could not be completed. In paragraph-6 of the counter-affidavit, it is specifically stated that it is false even to the knowledge of the petitioners that they or any of them had undergone the medical fitness test required for recruitment of constables which is a must for recruitment/appointment of constables to the Nagaland Police. As such, the appointment orders issued by Mr. Lilongse Sangtam were fraudulent as the same were issued surreptitiously behind the back of the Nagaland police head quarters and the Government of Nagaland. Not only that, at that relevant time, there was also no vacancy. It is also contended in the counter-affidavit that the recruit constables are appointed only after advertisement and selection by a Recruitment Board and soon thereafter they are sent to the Police Training Centre at Chumukidema for basic training course. In the instant case, the present petitioners were not appointed following the prescribed procedure and were never sent to any training centre as required under law. In the instant case, the present petitioners were not appointed following the prescribed procedure and were never sent to any training centre as required under law. It is also stated that the total sanctioned strength of the unit at all relevant times was, and has been, 108 and strength of the constabulary in the District Executive Force was, and has been, 77 only and that strength was exceeded to the extreme in the private interest of Mr. Lilongse Sangtam, the then Superintendent of Police, Kiphire. Long after on 14.7.2006; the new incumbent Shri K. Mero who joined as Superintendent of Police, Kiphire submitted a report dated 21.8.2006 in detail to the higher authority wherein it was stated that the appointments of the petitioners were illegal and in excess of the strength as prescribed for the District and without following the employment policies. Hence, these appointments were also illegal in the eye of law. Not only that, there was also no financial sanction for such appointment. Therefore, the petitioners have no right either legal or statutory or otherwise to get any benefit from the said fraudulent and illegal action of an officer who had issued the appointment letters of the petitioners without any authority or jurisdiction, but for his private interest. 5. Mr. Jamir would contend that even if the appointments are illegal then also the petitioners are entitled to the salaries for the period for which they worked. He also placed reliance of the order dated 1.11.2006 passed by this Court in WP(C) 158 of 2006 wherein this Court while allowing the withdrawal of the writ petition stated inter alia that in view of the withdrawal of the impugned order, it would not be a bar for the authority to release the salary of the petitioners provided they are found to be working and in the instant case, according to Mr. Jamir, the petitioners worked up to May, 2007, i.e., from the date of issuing notice for cancellation of their appointment. He also contends that even if there is any wrong committed by the then S.P., the petitioners cannot be held liable for such wrong and they cannot be punished and they are entitled to their salaries for the period they worked. He also firmly submits that the petitioners are not challenging the order/notice of cancellation of appointment issued by the Dy. He also firmly submits that the petitioners are not challenging the order/notice of cancellation of appointment issued by the Dy. Inspector General of Police, H.Q, Nagaland, they only claim the salary for the period they worked. 6. Mr. Sarma in response to the submission of Mr. Jamir submits that once it is found that orders of appointment of the petitioners were illegal and issued in violation of public employment policy, the appointing authorities cannot be directed to pay salaries of the petitioners. He. finally contends that a public servant even if worked for a period despite the fact that his appointment was illegal and fraudulent, he is not entitled to any salary for that period and in support of his aforesaid contention, Mr. Sarma placed reliance in Paras 17 and 18 in the case of R. Vishwanatha Filial v. State of Kerala and Ors. (2004) 2 SCC 105 , relying which, this Court dismissed the writ petition No. 215(K)/2006 wherein the same question arose for decision and the petitioners of that case were also appointed like the present petitioners and the appointment letters were issued by the same person following the same procedure. 7. In reply to the submission of Mr. Sarma, Mr. Jamir urges that there is a difference between two cases, namely, WP(C) 215/K/2006 and the WP(C) 201/K/2007. In the latter case, the petitioners had drawn their salaries for the period from November 2005 to June 2006, but in the earlier case WP(C) 215 of 2006, the petitioners had never drawn their salaries and he clearly submits that there is no difference between; the facts and circumstances of the case WP(C) 215/K/2006 and WP(C) 200/K/2007 as the petitioners of those cases have not drawn any salary like the earlier case. 8. This Court has gone through the records available before it and the pleadings of the parties in the writ petitions. This Court has also considered the submissions of the Learned Counsel for the parties and the decision of this Court in WP(C) 215/K/2006. 9. In the case of R. Vishwanatha Pilllai (supra), the Apex Court settled the law in paragraphs 17 and 18 as to 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. 9. In the case of R. Vishwanatha Pilllai (supra), the Apex Court settled the law in paragraphs 17 and 18 as to 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. For ready reference, Paragraphs 17 and 18 of the aforesaid report is quoted herein 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. 18. We agree with the view taken by the Patna High Court in the aforesaid case. 10. In the instant case, it is also evident from the record that the order dated 11.6.2007, i.e., the order of cancellation of the appointment of the petitioners were served on them personally and they have not come forward before any authorities, forum including this Court challenging the aforesaid cancellation of the orders. Question involve in this case is regarding payment of salary for the period they have allegedly worked. 11. Question involve in this case is regarding payment of salary for the period they have allegedly worked. 11. In support of their pleadings as regards their working, the petitioners only annexed copy of the Attendance Register (Annexure-H to the writ petition) which is denied by the State respondents by filing their affidavit contending, inter alia, that it is not correct that the petitioners have received any salary from the month of November 2005 to June 2006 when the record does not support the same while it is correct that whether before or after June 2006 the petitioners were never paid any salary. It is totally false that the petitioners attended any duty till 27th May 2007 while it is correct that they were not allowed to sign in the attendance register and none of them was assigned any duty or allowed to discharge any duty or function before or after, June 2007. The reason why no salary has been paid before or after June 2007 is that the petitioners have not worked in the unit and were appointed fraudulently and illegally and as such they are not entitled to the fruit of their fraudulent action. In fact, Annexure-H to the petition is not a genuine document and has no official sanctity and the fact that the same has been prepared as well as produced in this Court fraudulently in order to make illegal gain and to mislead the court should be clear from the very face of the same. The document is in the same hand and the ink is the same which confirms that Annexure-H to the petition was prepared by the same person on the same day and as such cannot be contemporary and the same does not have any official character or signature. In fact Annexure-H to the petition does not contain any signature of the petitioners and is also not supported by the office record. Therefore, no reliance can be placed on such a document which on its face is the product of the machinations/manipulations of the petitioners who have been guilty of committing fraud all along without any compunction. 12. In view of the aforesaid position, it is not possible for this Court to come to any conclusion that petitioners had ever received any salary from the respondents authorities for, they were not allowed to discharge their duties. 13. 12. In view of the aforesaid position, it is not possible for this Court to come to any conclusion that petitioners had ever received any salary from the respondents authorities for, they were not allowed to discharge their duties. 13. In the instant writ petition, the petitioners admittedly did not challenge the order of cancellation of their appointments, meaning thereby they themselves are aware that their appointments were illegal. When the appointment letter itself is an illegal one and on the basis of the said appointment letter, if anybody entered into service and allegedly worked for some time, then that work cannot be treated as a lawful work and when the work is not lawful, then for such work, a person is not entitled to get salary. In the instant case, the petitioners were appointed illegally. Hence, they have no right to the posts. When there is no right'" to the post, they have no right to claim the salary for the period they claim to have allegedly worked on the basis of such illegal appointment. Therefore, the petitioners are not entitled to the salaries for any period they allegedly worked. 14. A writ court can grant relief only when the petitioner can establish his lawful right to the post in which he/she was appointed. In the instant case, the petitioners failed to establish such a lawful right to the posts against which they were allegedly appointed, even for the period allegedly they worked, rather the respondents established that the petitioners were entered into service illegally by way of fraud and the alleged appointment letters for the post of constable (GD) were issued without any post and beyond the sanctioned strength and also by a person without any authority and without following the procedure laid down by the State Government. 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; However, if any amount of salary has already been paid to the petitioners, that should not be recovered by the respondents authorities, 15. In the result, the writ petitions are dismissed with no order as to costs. Petition dismissed.