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2018 DIGILAW 27 (MAN)

L. Ibomcha Singh v. State of Manipur

2018-06-12

KH.NOBIN SINGH

body2018
JUDGMENT Mr. Kh. Nobin Singh, J. - 1. Heard Shri M. Hemchandra, learned Senior Advocate appearing for the petitioner and Shri K. Jagat, learned Government Advocate appearing for the State respondents. 2. By the instant writ petition, the petitioner has prayed for issuing a writ of Mandamus or any other appropriate writ directing the respondents to release the salary of the petitioner for the whole three years period of appointment as the State Commissioner for Persons with Disabilities vide order dated 28.06.2014 issued by the Joint Secretary (Social Welfare), Government of Manipur @ Rs 20,000/- per month. 3.1. Facts of the case as narrated in the writ petition, are that a Search-cum-Selection Committee was constituted for appointment to the post of State Commissioner for Persons with Disabilities and as per the proceedings thereof in its meeting held on 27.05.2014, the petitioner was recommended as the 1st preference followed by Dr. R.K. Kumarjit Singh as the 2nd option. Accordingly, the Joint Secretary (Social Welfare) Government of Manipur, issued an order dated 28.06.2014 appointing the petitioner as the State Commissioner for Persons with Disabilities on full term basis for a period of three years from the date of which he assumed office or till he attained the age of sixty-five years, whichever was earlier. The petitioner joined the service on 2nd July, 2014 as the State Commissioner for Persons with Disabilities and started discharging his duties to the full satisfaction of all concerned including the authorities both at the Union and State level and in particular, the physically challenged persons. 3.2. Dr. R.K. Kumarjit Singh, who was recommended as the 2nd option, challenged the appointment of the petitioner vide order dated 28.06.2014 by way of a writ petition being WP(C) No. 567 of 2014 on various grounds mentioned therein. This Court was pleased to pass an interim order dated 3.11.2014 whereby the appointment order dated 28.06.2014 was directed to be kept in abeyance and further directed the State Government to make alternative arrangement during the pendency of the said writ petition for smooth functioning of the office. However, no termination order terminating the petitioner from the service was issued by the State Government for the reason best known to them. 3.3. After about one and half years, the said writ petition being WP(C) No. 567 of 2014 was withdrawn by Dr. However, no termination order terminating the petitioner from the service was issued by the State Government for the reason best known to them. 3.3. After about one and half years, the said writ petition being WP(C) No. 567 of 2014 was withdrawn by Dr. R.K. Kumarjit Singh with a liberty to file a fresh petition, if so advised, vide order dated 01.08.2016 passed by this Court. 3.4. Before completion of three years period of appointment of the petitioner and immediately after the withdrawal of the said writ petition, Dr. R.K. Kumarjit Singh who was recommended as the 2nd option, was appointed as the State Commissioner in place of the petitioner vide order dated 03.08.2016 issued by the Principal Secretary (Social Welfare), Government of Manipur by way of an interim arrangement with immediate effect until further orders. 3.5. Since the writ petition being WP(C) No. 567 of 2014 had been withdrawn and no termination order with respect to the appointment of the petitioner had been issued, the contractual appointment of three years of the petitioner would be deemed to have continued/survived till the completion of three years w.e.f. 2nd July, 2014. Although the appointment of Dr. R.K. Kumarjit Singh appeared to be arbitrary, malafide and bad in law, the petitioner did not wish to challenge his appointment as the petitioner was no longer interested in the matter and therefore, the petitioner submitted a representation dated 03.04.2017 to the competent authority for release of his salary for the whole years of service as the State Commissioner. The said representation had not been disposed of nor was the salary of the petitioner released till date without any justifiable and conceivable reason, although petitioner is entitled to his salary attached to the said post. Being aggrieved by the inaction on the part of the respondents, the instant writ petition has been filed by the petitioner. 4. In order to contest the writ petition, an affidavit-in-opposition on behalf of the respondent Nos. Being aggrieved by the inaction on the part of the respondents, the instant writ petition has been filed by the petitioner. 4. In order to contest the writ petition, an affidavit-in-opposition on behalf of the respondent Nos. 1 3 has been filed wherein it has been stated that pursuant to the order dated 03.11.2014 passed by this court, the State Government appointed Shri L. Nabakishwar Singh, IAS, Joint Secretary (Social Welfare), Government of Manipur as the State Commissioner for Persons with Disabilities on in-charge basis in addition to his normal duties until further notice; that the interim order dated 03.11.2014 passed by this Court was not challenged by the petitioner and that the petitioner was entitled to payment of his salary for the period of 4(four) months and 12(twelve) days for which the Department had already sanctioned Rs. 88,004/- (Rupees eighty eight thousand and four) only. 5. Relying upon the decisions rendered by the Hon'ble Supreme Court, Shri M. Hemchandra, the learned Senior Advocate appearing for the petitioner has vehemently contended that since the petitioner was appointed for a specific tenure and he had not been allowed to continue till the end of the tenure, he would be entitled to his salary for the whole period. The first decision, he relied upon by him, is the one rendered by the Hon'ble Supreme Court in Dr. L.P. Agarwal v. Union of India ors., (1992) 3 SCC 526 wherein the appellant was appointed as Director, AIIMS, New Delhi vide order dated 06-04-1979 which stated that he was appointed"for a period of five years or till he attains the age of 62 years, whichever is earlier". By an order dated 24-11-1980, he was retired from service, in the public interest, with immediate effect, by giving him three months pay and allowances, in lieu of notice. The Hon'ble Supreme Court, while allowing the appeal, held: "6. Unfortunately for Dr L.P. Agarwal, the Institute-Body in its meeting held on November 24, 1980 decided to prematurely retire him from service. The Hon'ble Supreme Court, while allowing the appeal, held: "6. Unfortunately for Dr L.P. Agarwal, the Institute-Body in its meeting held on November 24, 1980 decided to prematurely retire him from service. The resolution is reproduced hereunder: "RESOLUTION The Institute resolves, in the public interest, to retire Dr L.P. Agarwal, Director, All India Institute of Medical Sciences, New Delhi, with immediate effect, by giving him three months' pay and allowances, in lieu of notice." In J.S. Yadav v. State of Uttar Pradesh Anr., (2011) 6 SCC 570 , the appellant while working as a Principal Secretary and Legal remembrance, Government of UP, was appointed as a member of the State Human Rights Commission on 26-09-2006 for a period of five years i.e. till 30-06-2011. After the Chairman having completed his tenure, the State Government issued a Notification dated 28-05-2008 to the effect that the appellant ceased to hold the office as a member of the Commission. On 06-06-2008 the vacancies on the posts of Chairman and the members of the Commission were filled up. The writ petition filed by the appellant questioning the Notification dated 28-05-2008 was dismissed by the High Court. The question that arose was as to whether the State could issue the notification making a declaration that the appellant ceased to be a member of the Commission and whether the said notification could take away the accrued rights of the appellant" The Hon'ble Supreme Court allowed the appeal to the extent as explained therein. The relevant para read as under: "17. An employee appointed for a fixed period under the statute is entitled to continue till the expiry of the tenure and in such a case there can be no occasion to pass the order of superannuation for the reason that the tenure comes to an end automatically by efflux of time. (Vide L.P. Agarwal (Dr.) v. Union of India and State of U.P. v. Dr. S.K. Sinha.) 31. No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice. S.K. Sinha.) 31. No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice. The principles enshrined in the proviso to Order 1 , Rule 9 of the Code of Civil Procedure, 1908 provide that impleadment of a necessary party is mandatory and in case of non-joinder of necessary party, the petitioner-plaintiff may not be entitled for the relief sought by him. The litigant has to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise the proceedings will have to fail. In service jurisprudence if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in representative capacity. In case the services of a person are terminated and another person is appointed at his place, in order to get relief, the person appointed at his place is the necessary party for the reason that even if the petitioner-plaintiff succeeds, it may not be possible for the Court to issue direction to accommodate the petitioner without removing the person who filled up the post manned by the petitioner-plaintiff. (Vide Prabodh Verma v. State of U.P., Ishwar Singh v. Kuldip Singh, Tridip Kumar Dingal v. State of W.B., State of Assam v. Union of India and Public Service Commission v. Mamta Bisht.) More so, the public exchequer cannot be burdened with the liability to pay the salary of two persons against one sanctioned post. 32. The appellant did not implead any person who had been appointed in his place as a Member of the Commission. More so, he made it clear before the High Court that his cause would be vindicated if the Court made a declaration that he had illegally been dislodged/restrained to continue as a Member of the Commission. In view of the above, he cannot be entitled to any other relief except the declaration in his favour which had been made hereinabove that the impugned Notification dated 28-5- 2008 is illegal. 33. In view of above, the appeal is allowed to the extent as explained hereinabove. However, in the peculiar facts and circumstances of the case, the appellant is entitled for costs to the tune of Rs. 33. In view of above, the appeal is allowed to the extent as explained hereinabove. However, in the peculiar facts and circumstances of the case, the appellant is entitled for costs to the tune of Rs. 1 lakh which the respondents must pay within a period of two months from today. In Deepali Gungu Surwase v. Kranti Junior Adhyapak Mahavidyala ors., (2013) 10 SCC 324 , the question was whether the appellant was entitled to wages for the period during which she was forcibly kept out of service by the management of the school. The appellant questioned the order dated 15-06-2007 which was issued on the basis of a ex-parte proceedings, on the ground that the action taken by the management was arbitrary and violative of the principles of natural justice. The Presiding Officer of the School tribunal quashed the termination of the appellant's service order and directed the management to pay full back wages to the appellant. The learned Single Judge while allowing the management to once again hold enquiry, set aside the direction given by the School Tribunal for payment of back wages. The Hon'ble Supreme Court allowed the appeal by holding that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule and directed the management to pay back wages with interest. 6. There can be no any dispute about the law laid down by the Hon'ble Supreme Court in the aforesaid cases but since the facts of those cases are not similar to that of the present case, the same will have no application. 7. In the present case, it is not in dispute that the petitioner was appointed as the State Commissioner for Persons with Disabilities vide order dated 28-06-2014 for a period of three years. But in the writ petition being WP(C) No.567 of 2014 wherein the petitioner's appointment had been challenged by Shri R.K. Kumarjit Singh, this Court passed an interim order dated 03-11-2014 directing that the said appointment dated 28-06-2014 be kept in abeyance and that an alternative arrangement be made by the State Government during the pendency of the said writ petition for smooth functioning of the office. Moreover, while accepting the contention of the learned counsel appearing for the petitioner therein prima facie, this Court made an observation that the petitioner who does not have the qualification, should not have been appointed as the State Commissioner. Since, admittedly, no appeal had been preferred by the petitioner against the Court's order dated 03-11-2014, Shri L.Nabakishore Singh, IAS, Joint Secretary (SW), Government of Manipur was appointed as the State Commissioner in addition to his normal duties without any extra remuneration and from the day, i.e., 12-11-2014 when Shri L. Nabakishore Singh came to be appointed as the State Commissioner, the petitioner had stopped working as the State Commissioner, although there was no any formal termination order being issued by the State Government. It appears that the validity and correctness of this government order dated 12-11-2014 had not been challenged by the petitioner, may be, for the reason that the said order was issued in compliance with the court's order dated 03-11-2014. The said writ petition being WP(C) No. 567 of 2014 was allowed to be withdrawn vide this Court's order dated 01-08-2016 and on the second day thereafter, Dr. R.K. Kumarjit Singh was appointed as the State Commissioner for Persons with Disabilities as an interim arrangement, which the petitioner had chosen not to challenge it. 8. The instant writ petition has been filed by the petitioner only for claiming his salary for the whole period of three years. In the facts and circumstances of the present case, the short question that arises for consideration by this court, is as to whether the petitioner would be entitled to salary for the period for which he never worked as the State Commissioner. The answer is in the negative for two reasons - one, the interim order dated 03-11-2014 passed by this Court was not challenged by the petitioner and two, the petitioner had chosen not to challenge the government order dated 03-08-2016 appointing Dr R.K. Kumarjit Singh as the State Commissioner. The answer is in the negative for two reasons - one, the interim order dated 03-11-2014 passed by this Court was not challenged by the petitioner and two, the petitioner had chosen not to challenge the government order dated 03-08-2016 appointing Dr R.K. Kumarjit Singh as the State Commissioner. As has been stated hereinabove, although the petitioner was appointed as the State Commissioner on 28-06-2014, this Court had directed vide its interim order dated 03-11-2014 that the said order dated 28-06-2014 appointing the petitioner as the State Commissioner, be kept in abeyance with the further direction that an alternative arrangement be made till the disposal of the writ petition and in compliance therewith, the State Government had no option but to issue the order dated 12- 11-2014 appointing Shri L. Nabakishore Singh as the State Government, by which the petitioner appeared to be not aggrieved at all. Unlike the facts of the two cases namely Dr. L.P. Agarwal case and J.S. Yadav case referred to hereinabove, it is not the State Government which had, on its own, prevented/restrained the petitioner from continuing to discharge his duties as the State Commissioner but it is the Court's order dated 03-11-2014 which compelled the State Government to issue the order dated 12-11-2014 towards its compliance. Since the petitioner remained satisfied himself with the Court's order dated 03-11-2014 and the Government order dated 12-11-2014, no relief could be claimed by him nor was he entitled to any salary for the period during which the Court's order dated 03-11-2014 was in operation. In such situation, the principle of"no work no pay" would come into play and the only exception to it, as recognised in service jurisprudence, is that the said principle would not apply to a case where an employee, for no fault of his, was wrongly or illegally prevented by the employer from attending the work. The present case does not fall under the exception. As regards the second reason, it may be noted that the petitioner had chosen not to challenge the Government order dated 03-08-2016 by which Dr R.K. Kumarjit Singh was appointed as the State Commissioner. The present case does not fall under the exception. As regards the second reason, it may be noted that the petitioner had chosen not to challenge the Government order dated 03-08-2016 by which Dr R.K. Kumarjit Singh was appointed as the State Commissioner. In fact and it is true that from the day the writ petition being WP(C) No.567 of 2014 was withdrawn, the petitioner ought to have been allowed to continue as the State Commissioner, as his appointment being a tenure appointment of three years but without doing that, the State Government had issued the order dated 03-08-2016 appointing Dr. R.K. Kumarjit Singh as the State Commissioner and in the absence of any order of a competent and appropriate forum declaring the said Government order dated 03-08-2016 as illegal, it ought to be deemed to be valid. As the petitioner was not aggrieved with the said Government order dated 03-08-2016, his claim for payment of salary for the period commencing from 03-08-2016 till the end of the tenure would not be sustainable in law. In other words, no salary can be given to two persons for the same post and if given, it will affect the interest of the general public. 9. In view of the above and for the reasons stated hereinabove, the instant writ petition is devoid of any merit; it fails and is accordingly dismissed with no order as to costs.