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2022 DIGILAW 105 (MAN)

Thounaojam Priyoranjan v. State of Manipur

2022-06-08

M.V.MURALIDARAN

body2022
JUDGMENT 1. This writ petition has been filed by the petitioners seeking writ of certiorarified mandamus to quash the order dated 30.01.2021, whereby the appointment of the petitioners was cancelled by the third respondent and to direct the respondents to allow the petitioners to continue in their posts without any obstructions from any side. 2. Heard Mr.Anjan Sahu, learned counsel for the petitioners and Ms.Ch.Sundari, learned Government Advocate. 3. The case of the petitioners is that they were appointed in the teaching and non-teaching posts respectively in Residential School, Chingkheiching, Imphal East on 28.9.2012 by the Chairperson, Ad-hoc Committee. The appointment of the petitioners was done by the Ad-hoc Committee and the same was chaired by the then Member of the Legislative Assembly. According to the petitioner, the formation of the said Ad-hoc Committee was approved by the then Deputy Commissioner/Chairman, District Board of Education, SSA, Imphal East. While so, on 27.1.2021, the petitioners were served with show cause notices directing them to appear on 30.1.2021 before the Deputy Commissioner/Chairman, District Board of Education, SSA with relevant documents in support of their position. Accordingly, all the petitioners appeared before the concerned authority in person along with relevant documents. However, on the same day, the Deputy Commissioner/Chairman, District Board of Education, Imphal East passed the impugned order cancelling the appointment of the petitioners along with others thereby disengaging them with immediate effect. Challenging the same, the petitioners have filed the present writ petition. 4. The respondents 1 to 3 filed affidavit-in-opposition stating that the State Project Director, SSA/SMA, Manipur vide letter dated 30.6.2012 addressed to the Deputy Commissioners, including the Deputy Commissioner, Imphal East to make necessary arrangements in connection with opening of 7 new Residential Schools. The said letter specifically mentions that formation of an Ad-hoc Committee with the concerned District Program Manager as Chairman to run the Residential Schools. But the said Ad-hoc School Management Committee approved by the then Deputy Commissioner/Chairman, District Board of Education vide order dated 17.10.2012, the Chairperson is the then MLA, Khurai Assembly Constituency, which is contrary to the direction issued by the concerned authority. Thus, the appointment orders issued to the petitioners dated 28.9.2012 are non-est in the eye of law and allowing to continue their services will only perpetuate irregularities/illegalities. Hence, the prayer of the writ petition is liable to be rejected outright for the ends of justice. 5. Thus, the appointment orders issued to the petitioners dated 28.9.2012 are non-est in the eye of law and allowing to continue their services will only perpetuate irregularities/illegalities. Hence, the prayer of the writ petition is liable to be rejected outright for the ends of justice. 5. Assailing the impugned order, Mr. Anjan Prasad Sahu, the learned counsel for the petitioners submitted that the petitioners and others were appointed on 28.9.2012 to various teaching and non-teaching posts in Residential School, Chingkheiching, Imphal East for a period until further orders and that the same was duly signed by the Chairperson, Ad-hoc Committee. He would submit that the said appointments were made pursuant to the resolution passed by the Ad-hoc Committee chaired by the then MLA and the formation of the said Ad-hoc Committee chaired by the MLA, Khurai Assembly Constituency for the year 2011-12 was approved by the then Deputy Commissioner/Chairman, District Board of Education, SSA on 17.10.2012. 6. The learned counsel further submitted that while the petitioners are working pursuant to their appointments and status, on 27.1.2021 they were served with show cause notices directing them to appear before the Deputy Commissioner/Chairman, School Management Committee, Residential School on 30.1.2021 along with relevant records. According to the learned counsel, the petitioners were appeared before the said authority with relevant documents. However, the Deputy Commissioner/Chairman, without considering the claim of the petitioners, has cancelled the appointment and they were ordered to be disengaged with immediate effect. 7. The learned counsel for the petitioners urged that the Ad-hoc Committee which has issued the appointment orders to the petitioners comprised of (i) Superintendent of DIET (SCERT), Government of Manipur; (ii) District Program Manager, SSA, Imphal East (iii) AE, SSA, Imphal East: (iv) ZEO-II/DPO, SSA, Imphal East amongst others. Since the appointment of the petitioners was not with the approval of the aforementioned office bearers of SSA and other officials of the Department of Education, Government of Manipur and in their presence, by the impugned order, the appointment of the petitioners cannot be cancelled. In fact, the process of appointment of teachers of all the 20 schools under SSA/SMA was undertaken in the exact same manner and therefore, the act of the respondents in calling upon only the petitioners and not teachers of the other schools, amounts to undue victimization fueled by malafide. In fact, the process of appointment of teachers of all the 20 schools under SSA/SMA was undertaken in the exact same manner and therefore, the act of the respondents in calling upon only the petitioners and not teachers of the other schools, amounts to undue victimization fueled by malafide. In view of the above, the learned counsel prayed for setting aside the impugned order dated 30.1.2022 and to allow the petitioners to continue their posts. 8. Per contra, Mrs. Ch. Sundari, the learned Government Advocate submitted that the Ad-hoc Committee for opening new Residential Schools under the program of SSA/SMA, Manipur is to be chaired by the concerned District Program Managers as Chairman to run the Residential Schools as per the letter of the State Project Director, SSA/SMA. However, the then MLA of Khurai Assembly Constitution was made as Chairman and the District Program Manager as Vice Chairperson, which is in violation of the directions given by the State Project Director. 9. The learned Government Advocate further submitted that pursuant to the direction of the Secretary, Education (S) Department to review the process of selection for the contract engagement of teaching and non-teaching staff of Residential School, Chingkheiching, Khurai of which the selection process was allegedly done with then MLA as the Chairman, show cause notices dated 27.1.2021 were issued to the petitioners to appear and submit an explanation with documents in support of their claim to the Deputy Commissioner/Chairman, School Management Committee on 30.1.2021. She would submit that on a perusal of the documents produced by the petitioners and also after discovering the irregularities in the appointment of the petitioners, the Deputy Commissioner/Chairman, School Management Committee issued the impugned order cancelling their appointment thereby disengaged them with immediate effect. According to learned Government Advocate, the order impugned is well considered and there is no illegality in it and, therefore, the petitioners have no grievance over the impugned order. In view of the above, the learned Government Advocate prayed for dismissal of the writ petition. 10. This Court considered the rival submissions and also perused the materials available on record. 11. In view of the above, the learned Government Advocate prayed for dismissal of the writ petition. 10. This Court considered the rival submissions and also perused the materials available on record. 11. The respondents 1 to 3 in their affidavit themselves admitted that the appointment of the petitioners was made vide order dated 28.9.2012 pursuant to the resolution passed by the Ad-hoc Committee, Residential School, Chingkheiching, Khurai Assembly Constituency, Imphal East for different categories of posts on the recommendation of the Ad-hoc Committee. However, the respondents are contesting the writ petition by saying that the Ad-hoc Committee should be chaired by the District Program Manager as Chairman and the Committee chaired by the then MLA of Khurai Assembly Constituency as Chairperson is in violation of the directions of the State Project Director, SSA/SMA. It is the case of the respondents that no advertisement was issued by giving opportunity to all eligible candidates to compete or any selection process was undertaken before appointment of the petitioners. 12. On a perusal of the materials produced before this Court, it is clear that the Ad-hoc Committee, which had recommended the petitioners for appointment to the posts chaired by the then MLA, was admittedly approved by the then Deputy Commissioner/Chairman of the District Board of Education. 13. It appears that the meeting for formation of Ad-hoc Committee, SSA was held on 28.9.2012 at the residence of the then MLA, Khurai Assembly Constituency and the MLA has chaired the meeting wherein a resolution was passed to the effect that Dr.Ng.Bijoy Singh, MLA, Khurai A/C is the Chairperson and the District Program Manager as Vice Chairperson and the Advocate-Oath Commissioner, Imphal East District is the Member Convenor and also named the other Members. During discussion, the Adhoc Committee recommended the petitioners and others, totally 12 persons for appointment as teaching and non-teaching staff respectively and a list containing the names of the petitioners and others was also annexed. 14. The then MLA Dr.Ng.Bijoy Singh, MLA, Khurai A/C was the Chairperson of the Ad-hoc Committee is strengthened by production of the order dated 17.10.2012. On a perusal of the same, it is found that the ZEO-II/District Project Officer, SSA, Imphal East approved the formation of Ad-hoc School Management and Development Committee in respect of New Residential School, Khurai Assembly Constituency for Imphal East consisting of the following : Sl. On a perusal of the same, it is found that the ZEO-II/District Project Officer, SSA, Imphal East approved the formation of Ad-hoc School Management and Development Committee in respect of New Residential School, Khurai Assembly Constituency for Imphal East consisting of the following : Sl. No. Name Particulars Designation in the Committee 1 Takhellambam Tomba Social Worker Member 2 Kumabam Sanajaoba Singh Supt. DIET (SCERT) GOM Member 3 P.Lokeshori Devi Member, Gram Panchayat Member 4 W.Ranibala Leimu Pradhan Kangla GP Member 5 P.Ronika Devi DPM, SSA, Imphal East Vice Chairperson 6 L.Chitrasen Singh Gen Sec Youth Congress, Manipur Member 7 K.Victor Singh AE, SSA, Imphal East Member 8 Ng. Gokulchandra Singh Retd AI, GOM Member 9 Ksh ItoSingh Sol. Contractor, PWD, GOM Member 10 Th Manihar Singh Retd Director, L.D.A. Member 11 Dr.Ng Bijoy Singh MLA, Khurai A/C Chairperson 12 M.Gyanpati Singh Advocate, Oath Commissioner, I/E Member Convenor 13 M.Nalini Devi Assistant Textbook Officer Member 14 M.Mema Devi ZEO-II/DPO, SSA, Imphal East Member 15. Thus, from the perusal of the above resolution dated 28.9.2012 and the order dated 17.10.2012, it is clear that the then MLA of Khurai Assembly Constituency has been nominated as Chairperson of the Ad-hoc School Management and Development Committee in respect of the New Residential School, Khurai Assembly Constituency by the then Deputy Commissioner/ Chairman, District Board of Education, SSA, Imphal East and the plea of the respondents that the Ad-hoc Committee is to be chaired by the concerned District Program Manager as Chairman is incorrect. Further, the Committee's resolution dated 28.9.2012 and the order dated 17.10.2012 have not been challenged by anybody at the relevant point of time and in fact, they have been acted upon. In view of the above, at the distant point of time, the respondents cannot contend that the Chairman of the Ad-hoc Committee should be the District Program Manager and not the then MLA of Khurai Constituency. 16. The constitution of the Ad-hoc Committee chaired by the then MLA as Chairperson and the District Program Manager as Vice Chairperson if really cannot be done and is in violation of the order of the State Project Director, SSA/SMA as alleged by the respondents, it is the bounden duty of the respondents to establish the same. However, in that regard no material has been produced. However, in that regard no material has been produced. Further, nothing prevented the District Program Manager of Imphal East to question the same at that point of time. On the other hand, the then District Program Manager participated in the Committee Meeting held dated 28.9.2012 in the capacity as Vice Chairman and passed resolution inter alia recommending the selection of teaching and non-teaching staff for the newly established Residential School, Khurai A/C. In view of the above, this Court is of the view that at this distant point of time, the respondents cannot question the heading of the then MLA as Chairperson of the Ad-hoc Committee. 17. Coming to the appointment of the petitioners as full-time teachers, part-time teacher, accountant, supporting staff, assistant cook and peon-cum-chowkidar respectively, the appointment was done by the Ad-hoc Committee only based on the recommendation of the Committee. Though the respondents contended that no advertisement was issued giving opportunity to all eligible candidates to compete, the said contention is to be rejected on the ground that the third respondent/ Deputy Commissioner has only approved the constitution of the Ad-hoc Committee chaired by the MLA. Further, the appointment of the petitioners was not questioned by anybody at the relevant point of time or till date. 18. At this juncture, the learned Government Advocate contended that the appointment of the petitioners was made on the day of formation of the Ad-hoc Committee on 28.9.2012 and therefore, the appointment of petitioners is invalid. In support of the said contention, the learned Government Advocate has failed to produce any materials. Further, there is no prohibition on the appointing authority to appoint persons on the same day while formation of Committee and resolution thereon. No material has been produced by the respondents to show that the appointment at the relevant point of time should be made only by way of an advertisement calling for application from eligible. However, the appointment should be in due process. 19. No material has been produced by the respondents to show that the appointment at the relevant point of time should be made only by way of an advertisement calling for application from eligible. However, the appointment should be in due process. 19. By placing reliance upon the decisions of the Hon'ble Apex Court in the cases of State of Manipur and others v. Y.Token Singh and others, (2007) 5 SCC 65 and Union of India and another v. Raghuwar Pal Singh, (2018) 15 SCC 463 , learned Government Advocate submitted that the appointments being in violation of constitutional and legal scheme, they were non-est and not binding on the State and hence the cancellation order issued by the third respondent is valid. 20. On a perusal of the aforesaid decisions, this Court finds that in those cases, finding fake appointment and also since the appointments were made without following the established procedure, the same was cancelled. There is no quarrel over the propositions laid down in the said decisions. If the appointment orders issued in favour of the petitioners are forgery, the respondents are entitled to cancel the same. However, in the case on hand, nothing has been produced to show that the appointment orders issued to the petitioners are fake orders. As stated supra, the appointment of the petitioners and others is of the year 2012 that too by following due process and the petitioners have also been allowed to work for nearly 10 years. Since it has not been proved that the appointment orders issued to the petitioners are fake, the decisions relied upon the learned Government Advocate has no relevance in the facts and circumstances of the case. 21. Time and again, the Hon'ble Apex Court held that regularization in case of irregular appointments is permitted. In State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 , the Apex Court summed up the following three essentials for regularization: (1) The employees have worked for ten years or more. (2) That they have so worked in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. (3) They should have possessed the minimum qualification stipulated for the appointment. (2) That they have so worked in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. (3) They should have possessed the minimum qualification stipulated for the appointment. Subject to the aforesaid three requirements being satisfied, even if the appointment process did not involve open competitive selection, the appointment would be treated irregular and not illegal and thereby qualify for regularization. Admittedly, the petitioners are working since from September, 2012 and nobody question their appointment stating that their appointment was illegal. 22. Though the respondents contended that there is illegality in the appointment of the petitioners, the illegality so pointed out is that the then MLA, Khurai A/C as Chairperson has no authority to issue appointment orders to them and the District Program Manager is the authority to issue appointment orders. As stated supra, since the constitution of the Ad-hoc Committee and heading of the Ad-hoc Committee by the then MLA, Khurai A/C is with the approval of the Deputy Commissioner/Chairman, District Board of Education, SSA, Imphal East, the respondents now cannot contend that there is violation in the appointment of the petitioners. Since the appointment of the petitioners was made on the recommendation of the Ad-hoc Committee by a resolution dated 28.9.2012, which was also duly approved by the Deputy Commissioner/Chairman, District Board of Education, SSA, the very same Deputy Commissioner/Chairman, District Board of Education, Imphal East has no authority to issue the impugned order cancelling the appointment of the petitioners, thereby disengaging them. 23. Though the Deputy Commissioner/Chairman, SMC, Residential School, issued show cause notices prior to the issuance of the impugned order, on a perusal of the same, it is seen that the Deputy Commissioner has directed the petitioners to appear before him with relevant documents to support their position. Accordingly, the petitioners have also appeared before him with relevant documents. It is also admitted by the respondents that the petitioners have appeared before the Deputy Commissioner with relevant documents on 30.1.2021. However, in the order impugned, the Deputy Commissioner stated that no concrete/ substantial document/evidence could be produced by the staff to support their cause. Once the authority himself stated that the petitioners appeared with documents, how the said authority could say that no concrete document has been produced. However, in the order impugned, the Deputy Commissioner stated that no concrete/ substantial document/evidence could be produced by the staff to support their cause. Once the authority himself stated that the petitioners appeared with documents, how the said authority could say that no concrete document has been produced. In view of the above, this Court is of the firm view that the reasoning given in the impugned order blaming the petitioners is not convincing. 24. From the year 2012 till 2021, nobody pointed out that there is irregularities in the appointment of the petitioners. However, the Deputy Commissioner, all of a sudden, by citing the letter of the SE(S) dated 26.10.2020, issued show cause notices stating that the appointment was made irregularly without open advertisement and proper DPC. In the show cause notice, it has been stated that the appointment of the petitioner was on the basis of the recommendation of the Ad-hoc Committee chaired by the then MLA as the Chairman. When the Deputy Commissioner himself stated that the appointment was on the basis of the recommendation of the Ad-hoc Committee, turning around in 2021, the Deputy Commissioner cannot say that without open advertisement and proper DPC, the appointment was made and therefore, the same is cancelled. 25. The authority approving the resolution of the Ad-hoc Committee thereby appointing the petitioners is the then Deputy Commissioner/ Chairman, District Board of Education and the authority now cancelling the said appointment is also the Deputy Commissioner/Chairman, District Board of Education. The only difference is person by name. As stated supra, when the formation of the Ad-hoc Committee chaired by the then MLA was approved by the then Deputy Commissioner/Chairman, District Board of Education, SSA, the same authority cannot issue the impugned cancellation of the appointment order to the prejudice of the petitioners. 26. It is not the case of the respondents that the petitioners are not eligible candidates at the relevant point of time. The fact remains that only after scrutinizing the eligibility and the qualification criteria, the Ad- Committee recommended for selection and appointment of the petitioners with the approval of the then Deputy Commissioner/Chairman, District Board of Education, SSA. 26. It is not the case of the respondents that the petitioners are not eligible candidates at the relevant point of time. The fact remains that only after scrutinizing the eligibility and the qualification criteria, the Ad- Committee recommended for selection and appointment of the petitioners with the approval of the then Deputy Commissioner/Chairman, District Board of Education, SSA. Such being the situation and being appointed after going through various stages of selection and after due process, the appointment of the petitioners cannot be held to be irregular and/or illegal for the reason that their appointment was not made by the competent authority. Even if assuming but not admitting that the appointing authority made some mistake while appointing the petitioners, the petitioners cannot be held liable for the mistakes committed by the authorities. 27. It is trite law that a person cannot be penalized for the mistakes/omissions/commissions committed by the authorities. 28. The submission of the petitioners is that the services of the petitioners were cancelled and disengaged as per the resolution taken in the meeting dated 18.1.2021 chaired by the Deputy Commissioner/ Chairman, SMC, Residential School in the chambers of the MLA, Khurai A/C which itself shows that the impugned order of cancellation of services of the petitioners is illegal for the reason that any meeting which ought to be held by the SMC is supposed to be held in the office of the Deputy Commissioner/Chairman. This Court finds some force in the submissions of the learned counsel for the petitioners. 29. The cancellation of the services of the petitioners by way of the impugned order made by the third respondent is illegal and arbitrary and also is a clear malafide. The petitioners having recommended and appointed by following due process in the year 2012 and allowed them to work all along, all of a sudden in the year 2021, their appointments cannot be cancelled by the same authority who approved their appointments. The petitioners have made out a case for interference of the impugned order. Finding infirmities in the impugned order, this Court is of the view that the same is liable to be set aside. 30. In the result, (i) The writ petition is allowed. (ii) The impugned order dated 30.1.2021 passed by the third respondent is quashed. The petitioners have made out a case for interference of the impugned order. Finding infirmities in the impugned order, this Court is of the view that the same is liable to be set aside. 30. In the result, (i) The writ petition is allowed. (ii) The impugned order dated 30.1.2021 passed by the third respondent is quashed. (iii) The respondents are directed to allow the petitioners to continue in their posts without any obstructions from any side. (iv) No costs.