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2009 DIGILAW 724 (GAU)

P. Thronhmusu Sangtam v. State of Nagaland

2009-10-12

MAIBAM B.K.SINGH

body2009
JUDGMENT Maibam B.K. Singh, J. 1. This writ petition has been filed for quashing the order dated 11.6.07, issued by the Deputy Inspector General HQ canceling the appointment orders of the Petitioners and for setting aside the order dated 22.6.07 passed by the Director General of Police, Nagaland, Kohima, rejecting the prayer for payment of salaries and allowances to the Petitioners coupled with a prayer for giving direction to pay the salaries and allowances of the Petitioners w.e.f. July 2006 with all consequential benefits. 2. Heard Mr. Taka Masa, learned Counsel for the Petitioners and also Mr. B.N. Sarma, learned Senior Advocate assisted by Mr. Apok Pongener, learned Counsel for the Respondents. 3. Facts leading to the filing of this writ petition are that the Petitioners, 22 in numbers, were appointed as Constables (GD) on regular basis in October and November 2005 on different dates by the Superintendent of Police (SP), Kiphire. The Petitioners received their salaries till the month of June 2006. On 1.8.06, the Superintendent of Police, Kiphire issued an order bearing No. DEF/KPE/RO-32/2006-07 by which all the appointments of the Petitioners were kept in abeyance. The Petitioners challenged the above abeyance order in WP (C) No. 187 (K) 06 before this Court. Pending disposal of the said writ petition, the impugned abeyance order was withdrawn by a subsequent order dated 24.10.06, being No. DEF/KPE/RO-32/2006-07/1853. Consequently, the said writ petition was closed as infructuous vide order dated 8.11.06 passed by this Court. Immediately on the next day, the Deputy Inspector General HQ, Nagaland, issued show cause notices bearing No. PHQ(B-II)3/KPE/2006 directing the Petitioners to show cause in writing within 30 (thirty) days from, the date of issue of the said notices as to why the Petitioners' appointment orders should not be cancelled. The Petitioners submitted reply to the show cause notices stating that they were appointed in accordance with the norms and conditions of the Nagaland Police Service Rules and thus prayed for allowing them to continue in service. Thereafter, the Petitioners again approached to this Court by filing second round of writ petition being WP (C) No. 76(K) 2007 for giving direction to the Respondents to release pay and allowances of the Petitioners w.e.f. the month of July 2006. Thereafter, the Petitioners again approached to this Court by filing second round of writ petition being WP (C) No. 76(K) 2007 for giving direction to the Respondents to release pay and allowances of the Petitioners w.e.f. the month of July 2006. This Court after hearing both sides, disposed of the writ petition on 12.6.07, directing the Respondents to consider the matter and pass an appropriate speaking order as to whether the Petitioners are entitled to the pay and allowances w.e.f. July 2006 till date, within a period of 2 (two) months from the date of receipt of the said order. Pursuant to the direction of the Court, the Director General of Police, issued an order on 22.6.07, bearing No. PHQ(B-II)HC/47/2007, rejecting the prayers of the Petitioners on the grounds that the Petitioners were appointed in excess of the sanctioned strength of the Unit and without following the recruitment procedure and that the appointment orders were without the authority of law. Almost on the same grounds, the appointment orders of the Petitioners were already cancelled vide order dated 11.6.07 bearing No. PHQ(B-II)HC-47/2006, issued by the Deputy Inspector General of Police HQ. Both the above orders are impugned in this writ petition and the copies of which are available as Annexure-L and M series to this writ petition. 4. The State Respondents contested the case by filing affidavit-in-opposition, contending inter-alia that at the relevant time, the sanctioned strength of the Constabulary in the District Executive Force, Kiphire was 77. However, the then Superintendent of Police, Kiphire, namely, Shri Lilongse Sangtam (now expired), surreptitiously made excess appointment to the extent of 169 Constables. Subsequently, one Shri K. Mero took over the charge of Superintendent of Police, Kiphire on 14.7.06 and discovered that the former Superintendent of Police, Kiphire, in addition to the said 169 Constables had also appointed 71 Constables including the Petitioners, whose appointments were subsequently kept in abeyance. A detailed report regarding the excess appointment was submitted to the Director General of Police by the new incumbent on 21.8.06. The appointment orders issued in the name of the Petitioners were not genuine and the same were made much later just for drawal of the salary bills. The appointment of the Petitioners were issued fraudulently without the sanctioned of the Government/Police HQ and following the due procedure for recruitment of Constables and also in excess of the sanctioned strength of the Unit. The appointment of the Petitioners were issued fraudulently without the sanctioned of the Government/Police HQ and following the due procedure for recruitment of Constables and also in excess of the sanctioned strength of the Unit. In that connection, a disciplinary proceeding was initiated against the then Superintendent of Police, Kiphire on the charge of making illegal appointments of recruit Constables in the District Executive Force, Kiphire in excess of the sanctioned strength and without following any procedure. But, the proceeding could not be completed as the then SP, Kiphire died pending completion of the said enquiry. All the alleged appointment orders of the Petitioners are illegal and the same were issued not only in excess of the sanctioned strength but also against the Government recruitment policy. Since the appointment orders of the Petitioners were made illegally, fraudulently, surreptitiously and in excess of sanctioned strength and against non-existent post without following the procedure for recruitment, their appointment orders were rightly cancelled. The Petitioners are not entitled to get any salary or benefit out of the said illegal and fraudulent appointment orders. 5. Mr. Taka Masa, the learned Counsel appearing for the Petitioners submits that the Petitioners were recruited after observing all the formalities by the competent authority. However, the appointment orders of the Petitioners were cancelled by the impugned order dated 11.6.07 on the ground that the appointments were made in excess of the sanctioned strength and without following legitimate procedure. The learned Counsel argued that along with the Petitioners, many other persons were also recruited by the then S.P. Kiphire but the appointment orders of the Petitioners were only cancelled, whereas all those other similarly situated persons are still working with all benefits. The learned Counsel further contends that the appointment orders of the Petitioners were terminated by the impugned order dated 11.6.07 but they have not been paid their pay and allowances since July 2006. The State Respondents passed the impugned orders arbitrarily, discriminatorily, illegally and without application of mind. 6. Mr. B.N. Sarma, learned Senior Counsel appearing for the Respondents countering to the above submissions submits that the Petitioners were appointed along with other 55 persons in 2005 by the then SP, Kiphire in excess of the sanctioned strength and as against the non-existent posts and contrary to the recruitment policy of the Government. 6. Mr. B.N. Sarma, learned Senior Counsel appearing for the Respondents countering to the above submissions submits that the Petitioners were appointed along with other 55 persons in 2005 by the then SP, Kiphire in excess of the sanctioned strength and as against the non-existent posts and contrary to the recruitment policy of the Government. All the said appointments were made fraudulently and illegally for the personal interest of the then SP, Kiphire and as such all the said appointments were already cancelled. Mr. Sarma, learned Senior Counsel, however, admits that there are still some other recruit constables serving in the Unit who were also recruited in excess of sanctioned strength of the Unit by the then SP, Kiphire but submits that the matters relating to the said excess recruit constables are still under active consideration of the Government for necessary action. Mr. Sarma further submits that the appointment orders of the Petitioners were rightly cancelled after giving show cause notices to them as their appointment orders were found to be illegal. The learned Counsel had also submitted that once the appointment orders are found illegal and issued in violation of public employment policy and contrary to the relating policy circular of the Government, the appointing authority cannot be directed to pay salaries and other benefits of those employees. Mr. Sarma learned Senior Advocate has also produced a copy of the order dated 2.2.09 passed in WP (C) No. 200(K) 2007 and WP (C) 201(K) 2007, by this Court, which were filed by the other Constables who were recruited along with the present Petitioners. In the said case, this Court held that the Petitioners were not entitled to the salary for any period they allegedly worked on the basis of illegal appointments. 7. It is an admitted fact by both sides that the sanctioned strength of District Executive Force under the establishment of SP, Kiphire at the relevant time was 77 only. However, the learned Counsel appearing for the Petitioners contended that the Petitioners were appointed after necessary verification of their credentials and as per norms and conditions of the Nagaland Police Service Rules. I am not convinced to the above submission that the recruitments of the Petitioners were made as per Rules. However, the learned Counsel appearing for the Petitioners contended that the Petitioners were appointed after necessary verification of their credentials and as per norms and conditions of the Nagaland Police Service Rules. I am not convinced to the above submission that the recruitments of the Petitioners were made as per Rules. As per Government recruitment policy circular dated 23.12.95, the Unit Commander should form a Board of his Unit to conduct such recruitment in which invariably the RMO (Regimental Medical Officer) of the Unit should be included. The District Ss. P. may requisition the service of the Battalion RMO wherever required. The recruitment of the Constables should take place only once a year and at no other point of time piece meal recruitment should be made even in the event of any vacancy arising through discharged/dismissal or death. Once the recruitment is made, police verification on character/antecedent of the RCs should be immediately carried out and all the recruits should be sent to the training centre for police basic training. In the instant case, admittedly, the Petitioners were not appointed on the recommendation of the Recruitment Board, they were appointed by the then S.P. Kiphire without following the said Government recruitment policy and also in excess of the sanctioned strength of the Unit. The learned Counsel appearing for the Petitioner could not establish that the Petitioners were appointed as per rules or Government recruitment policy. Therefore, the appointments of the Petitioners are nonest in the eye of law. 8. The learned Counsel appearing for the Petitioners contended that even assuming that appointment orders of the Petitioners are illegal, the Petitioners are entitled to receive their pay and allowances w.e.f. July 2006 till the date of cancellation their appointment orders i.e. 11.6.07. Mr. Sarma, learned Senior Counsel appearing for the Respondents controverting to the above submissions that the Petitioners are not entitled to get any pay and allowances for the said period as their appointment orders are found illegal. The same point was raised in WP (C) No. 200(K) 2007 and WP (C) No. 201(K) 2007 by the others Constables who were recruited along with the Petitioners but the Court decided the said point in negative against the Petitioners relying on the decision of the Apex Court, reported in R. Vishwanatha Pillai vs. State of Kerala and other (2004) 2 SCC 105 vide order dated 2.2.09. 9. 9. Upon hearing the submission of the learned Counsel appearing for the parties and on perusal of the materials on record, it is crystal clear that there was no public advertisement for recruitment of Constables under the establishment of S.P. Kiphire in 2005-06. The Petitioners and others numbering about 77 were appointed by the then S.P. Kiphire in violation of the Government recruitment policy circular dated 23.12.95, the appointments were made in excess of the sanctioned strength of the Unit and without following any established procedure and knowledge of the Government. Such type of appointments made in violation of the policy circular of the Government and in excess of sanctioned strength are illegal, nonest in the eye of law and not binding on the State Government/Respondents. Thus, the cancellation orders of such illegal appointments issued by the Deputy Inspector General of Police suffer from no illegalities or infirmities. The writ Petitioners have no right to seek a writ of Mandamus compelling the State Respondents to pay their salaries on the basis of such illegal appointments for any period whatsover. State of Manipur and other vs. Y. Token Singh and other (2007) 5 SCC 65 . 10. That the learned Counsel appearing for the Petitioners has also submitted that the impugned cancellation orders dated 11.6.07 were issued discriminatorily, illegally and on pick and choose method as many other constables who were also appointed in excess of sanctioned strength of the Unit are still allowed to work in the Unit and their appointment orders were not cancelled. In this regard, Mr. B.N. Sarma, learned Senior Advocate submits that the matter relating to the other excess appointments made in the Unit is still under active consideration of the Government. Besides, such non cancellation of the appointment orders of the other excess appointments does not at all confer/create any entitlement to the Petitioners for their continuation in services nor it can be a ground for interference with the impugned cancellation orders dated 11.6.07 on the ground of equal treatment under Article 14 of the Constitution. It is well settled proposition of law that the equality clause contained in Articles 14 and 16 of the Constitution is a positive concept and cannot be involved where any illegality has been committed or where no legal right is established. In the instant case, the Petitioners utterly failed to establish their rights to the posts. It is well settled proposition of law that the equality clause contained in Articles 14 and 16 of the Constitution is a positive concept and cannot be involved where any illegality has been committed or where no legal right is established. In the instant case, the Petitioners utterly failed to establish their rights to the posts. Thus, the submissions of the learned Counsel appearing for the Petitioners finds no sufficient force. 11. The learned Counsel appearing for the Respondents submits that the appointment orders of the Petitioners were issued fraudulently by the then S.P. for his private interest in which the Petitioners were also actively involved. I have carefully perused the relevant office records as produced by the learned Counsel appearing for the Respondents. Surprisingly, the name of the Petitioners are not found in the relevant pay rolls of the recruit constables. Most of the applications for appointment bear no date except one and the alleged medical certificates of fitness appears to have been issued after their appointments. The learned Counsel appearing for the Petitioners admits that the medical certificates were issued after their appointments but submitted that the Petitioners were medically examined by the Civil Doctor and declared medically fit before their appointments. On perusal of the above documents along with the reports of the excess appointment dated 21.8.06 submitted by the S.P. Kiphire. (Annexure-R1 to the writ petition), the appointment orders of the Petitioners are not free from doubt. Since the appointment orders of the Petitioners are found illegal on more than one counts as indicated in the above paragraphs, the question as to whether the appointment orders were fraudulently issued by the then S.P. Kiphire for his private interest in connivance with the Petitioners is left undecided as disputed question of facts are involved in such issue which cannot be decided by this Court on the basis of the pleading of the parties without taking evidence of the parties. 12. I have also carefully perused the order dated 22.6.07 passed by the Director General of Police and of the view that the Director General of Police passed the same after taking into account the entire facts and the materials on record. 12. I have also carefully perused the order dated 22.6.07 passed by the Director General of Police and of the view that the Director General of Police passed the same after taking into account the entire facts and the materials on record. It appears that the Director General of Police, Nagaland, Kohima, issued the said order in compliance of the order of this Court dated 12.6.07 passed in WP (C) No. 76(K) 2007 and also after considering the reply submitted by the Petitioners. Since the appointment orders are found to be illegal, the findings of the Director General of Police, Nagaland that the recruit constables are not entitled to payment of their salaries and allowances, suffers from no infirmities or illegalities. 13. For the reasons and the discussions made hereinabove, I do not find any ground to interfere with the orders dated 11.6.07 issued by the Deputy Inspector General of Police and 22.6.07, issued by the Director General of Police. 14. Consequently, this writ petition is dismissed being devoid of merit. No order as to costs. Petition dismissed.