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2022 DIGILAW 224 (MAN)

Malemnganba Angomjambam v. State of Manipur

2022-11-16

M.V.MURALIDARAN

body2022
JUDGMENT 1. These writ petitions have been filed by the petitioners to quash the impugned show cause notices dated 6.2.2018 issued by the Under Secretary, Department of Consumer Affairs, Food & Public Distribution, Government of Manipur. 2. Brief facts are as follows: The petitioner in W.P.(C) No.211 of 2018 was appointed to the post of driver on 16.12.2016 in the Department of Consumer Affairs, Food & Public Distribution, Manipur in pursuance of the advertisement dated 27.9.2016. Subsequent upon the appointment, he was transferred and posted at the Director Office vide order dated 6.2.2017 and thereafter, he was attached with the office of the Hon'ble Minister/CAF & PD, Manipur vide order dated 17.7.2017 issued by the Director. The petitioner has been discharging his duty very sincerely, efficiently and with the full satisfaction of his senior officer. While so, to his utter shock and surprise, the Under Secretary issued the impugned show cause notice. Challenging the same, the writ petition has been filed. 2.1. The petitioner in W.P.(C) No.146 of 2018 was appointed to the post of Civil Supply Inspector on 31.12.2016 in the Department of Consumer Affairs, Food & Public Distribution, Manipur in pursuance of the advertisement dated 22.10.2016. Subsequent upon the appointment, she was posted at the office of DSO (CAF&PD), Imphal East and she has been discharging her duty very sincerely, efficiently and with the full satisfaction of her senior officer. While so, to her utter shock and surprise, the Under Secretary issued the impugned show cause notice. Challenging the same, the writ petition has been filed. 2.2. The petitioner in W.P.(C) No.152 of 2018 was appointed to the post of Quality Inspector on 07.12.2016 in the Department of Consumer Affairs, Food & Public Distribution, Manipur in pursuance of the advertisement dated 27.9.2016. Subsequent upon the appointment, he joined at the office of the Director, Department of CAF&PD and after joining, the petitioner underwent training for Quality Inspector and thereafter, he was transferred to the office of the DSO (CAF&PD), Thoubal on 11.5.2017. The petitioner is discharging his duty very sincerely, efficiently and with the full satisfaction of his senior officer. While so, to his utter shock and surprise, the Under Secretary issued the impugned show cause notice. Challenging the same, the writ petition has been filed. 2.3. The petitioner is discharging his duty very sincerely, efficiently and with the full satisfaction of his senior officer. While so, to his utter shock and surprise, the Under Secretary issued the impugned show cause notice. Challenging the same, the writ petition has been filed. 2.3. The petitioner in W.P.(C) No.231 of 2018 was appointed to the post of Store Handler on 03.01.2017 in the Department of Consumer Affairs, Food & Public Distribution, Manipur in pursuance of the advertisement dated 27.9.2016. Subsequent upon the appointment, he was posted at Director Office and has been discharging his duty very sincerely, efficiently and with the full satisfaction of his senior officer. While so, to his utter shock and surprise, the Under Secretary issued the impugned show cause notice. Challenging the same, the writ petition has been filed. 2.4. The petitioner in W.P.(C) No.241 of 2018 was appointed to the post of driver on 14.12.2016 in the Department of Consumer Affairs, Food & Public Distribution, Manipur in pursuance of the advertisement dated 27.9.2016. Subsequent upon the appointment, he was transferred and posted at the office of the (State Commission), Manipur on 1.4.2017 and he has been discharging his duty very sincerely, efficiently and with the full satisfaction of his senior officer. While so, to his utter shock and surprise, the Under Secretary issued the impugned show cause notice. Challenging the same, the writ petition has been filed. 3. Resisting the writ petitions, the respondent State filed affidavit-in-oppositions. Since the averments set out in all the affidavits are one and the same, the averments in affidavit-in-opposition filed in W.P.(C) No.146 of 2018 is taken as lead affidavit. 4. In the affidavit-in-opposition, the respondents stated that the impugned show cause notice dated 6.2.2018 was issued on the advice of the Special Investigation Team (SIT)-I and approved by the Law Department and Department of Personnel. It is stated that the SIT-I advised the Administrative Department of CAF & PD for taking necessary steps to cancel all irregular and excess appointment by issuing a speaking order on the advice of Law Department based on the findings of SIT-I. Accordingly, the Law Department advised for issuing the impugned show cause notice for reasonable opportunities of being heard in compliance with the principles of natural justice. 5. Assailing the impugned show cause notices, Mr. 5. Assailing the impugned show cause notices, Mr. M. Hemchandra, learned senior counsel for the petitioner in WP(C) No. 211 of 2018, WP(C) No. 152 of 2018, WP(C) No. 231 of 2018 and WP(C) No. 241 of 2018 and Mr. HS Paonam, learned senior counsel for the petitioners in WP(C) No. 146 of 2018 submitted that the Department of CAF&PD, Manipur issued an advertisement dated 27.9.016 inviting applications from eligible candidates for filling up of various posts, including Driver, Quality Inspector, Civil Supply Inspector, Store Handler. Pursuant to the advertisement, the petitioners applied for the posts of Driver, Quality Inspector, Civil Supply Inspector, Store Handler respectively and after participating and succeeding in the written examination, they were selected and posted at the offices mentioned in the appointment orders and that from the date of appointment, the petitioners are working to the satisfaction of their superiors. While so, they have been issued with impugned show cause notices dated 6.2.2018 calling upon them as to why their appointments should not be cancelled and reply in writing was directed to be submitted by them within 15 days from the date of receipt of the show cause notices. 6. The learned counsel further submitted immediately upon receipt of the show cause notices, the petitioner submitted RTI applications seeking documents, which forms the basis of the allegations in the show cause notices which were not provided to them. However, till date, the petitioners have not received any reply. 7. The learned counsel submitted that the impugned show cause notices violates the principles of natural justice, as the documents which forms the basis of the allegations were not provided to the petitioners and that the main document i.e. the report of the SIT-I was also not provided to the petitioners even though the finding of the said report was set out in the impugned show cause notices. Therefore, without having an opportunity to peruse the report of the SIT-I, the petitioners were unable to give reply to the show cause notices. 8. The learned counsel urged that the impugned show cause notices suffer from bias and prejudice, as there is a presumption that the petitioners were appointed against the additional approved posts which were not notified, whereas no show cause notice was issued to the other candidates, who were also appointed in pursuance of the same advertisement. 8. The learned counsel urged that the impugned show cause notices suffer from bias and prejudice, as there is a presumption that the petitioners were appointed against the additional approved posts which were not notified, whereas no show cause notice was issued to the other candidates, who were also appointed in pursuance of the same advertisement. Further, the impugned show cause is highly improper and arbitrary in the eyes of law, as it presumes that the report of the SIT-I is final and binding without providing the petitioners an opportunity to counter the said report. Thus, a prayer is made to set aside the impugned show cause notices. 9. Per contra, Mr. Y. Ashang, the learned Government Advocate appearing for the respondents submitted that due to the allegation of irregularities, procedural lapses and excess number of posts appointed beyond the advertised number of posts, a SIT-I was constituted to inquire into the matter on 8.6.2017 and that the SIT-I conducted a probe and has submitted its finding which was duly quoted in the impugned show cause notices itself. He would submit that the Administrative Department of CAF&PD issued the show cause notices on the advice of the Law Department based on the finding contained in the report of the SIT-I. 10. The learned Government Advocate further submitted that the impugned show cause notices are not termination or dismissal orders and that in the impugned show cause notices the petitioners were granted 15 days' time to submit their explanations and therefore, the question of violation of principles of natural justice canvassed by the petitioners does not arise. 11. The learned Government Advocate further submitted that it is not true that the petitioners have not been supplied a copy of the report of the SIT-I and in fact, the petitioners have collected copy of the report of SIT-I under RTI application and therefore, they knew the reason for issuance of the impugned show cause notices. 12. Qua the argument of learned Government Advocate that excess number of posts appointed beyond the advertised number of posts, the learned counsel for the petitioners, by drawing the attention of this Court to the advertisement, submitted that the vacancies shown in the advertisement will be increased or decreased according to the vacant posts available in the Department. 12. Qua the argument of learned Government Advocate that excess number of posts appointed beyond the advertised number of posts, the learned counsel for the petitioners, by drawing the attention of this Court to the advertisement, submitted that the vacancies shown in the advertisement will be increased or decreased according to the vacant posts available in the Department. Therefore, the argument of the learned Government Advocate that excess number of appointments beyond the advertised posts has no legs. 13. This Court considered the rival submissions and also perused the materials available on record. 14. The grievance of the petitioners is that the impugned show cause notices illegally seek to terminate the employment of the petitioners, who were appointed to the posts of Driver, Quality Inspector, Civil Supply Inspector, Store Handler respectively after fulfilling all the qualifications prescribed under the advertisement and having been successful in the DPC conducted by the Department. 15. On a perusal of the materials produced by the parties, this Court finds that the petitioners have applied to the posts advertised in the advertisement and upon being successful in the writ examination and based on the recommendation of the DPC, they have been appointed as Driver, Quality Inspector, Civil Supply Inspector, Store Handler, respectively. 16. The plea of the respondents is that the petitioners were appointed beyond the advertised posts and, therefore, there were irregularities and procedural lapses in the appointment of the petitioners and that is why the SIT-I advised to issue show cause notices to the petitioners. On the other hand, it is the say of the petitioners that the advertisement indicated that the vacancies shown in the advertisement will be increased or decreased according to the vacant posts available in the Department. 17. This Court perused the advertisement issued by the Director of CAF&PD and paragraph 2 stipulates as under: '2. The vacancies show above may be increased or decreased according to the vacant post available in the Department.' The advertisement is dated 27.9.2016 and the appointment of the petitioners were on 14.12.2016, 16.12.2016, 31.12.2016 and 03.01.2017, respectively. Therefore, there is every chance of increase to the vacant posts advertised. Therefore, the argument of learned Government Advocate that beyond the advertised posts, the petitioners were appointed cannot be countenanced. 18. Therefore, there is every chance of increase to the vacant posts advertised. Therefore, the argument of learned Government Advocate that beyond the advertised posts, the petitioners were appointed cannot be countenanced. 18. On a perusal of the impugned show cause notices, it is seen that the ground stated in the show cause notices itself indicates that the alleged irregularities/procedural lapses were not due to the fault of the petitioners and were in fact committed by the officials of the respondents wherein the petitioners who participated in the recruitment process through advertisement have no role to play. Admittedly, no fraud was played by the petitioners in getting the appointments. 19. At this juncture, the learned counsel for the petitioners contended that the impugned show cause notices itself is indicative of the fact that the State Government is pre-determined to cancel the appointment of the petitioners and the impugned show cause notices are mere a formality which itself was issued by an authority who is not the appointing authority in complete arbitrary exercise of power for vested interest of high functionary of political circle and, therefore, the impugned show cause notices are liable to be quashed. This Court finds some force in the said submission made by learned counsel for the petitioners. 20. The impugned show cause notices state that acting upon the report of SIT-I, the Department of P&AR (Personnel Division) has advised the Administrative Department to take necessary steps to cancel all irregular and excess appointment by issuing a speaking order after taking the advice of Law Department based on the relevant findings contained in the SIT-I report. Admittedly, the report of the SITI has not been furnished to the petitioners and there is nothing on record to show that before coming to the conclusion that there is irregular and excess appointment, no notice was issued to the petitioners by the SIT-I and the petitioners have not been heard. When the SIT-I has conducted a probe, it ought to have heard the affected parties like the petitioners during enquiry and before submitting its report. However, there is no proof to show that the petitioners have been heard by the SIT-I before submitting its report. 21. The affidavit-in-opposition filed by the respondent authorities in these writ petitions does not meet the grounds raised by the petitioners in their writ petitions. However, there is no proof to show that the petitioners have been heard by the SIT-I before submitting its report. 21. The affidavit-in-opposition filed by the respondent authorities in these writ petitions does not meet the grounds raised by the petitioners in their writ petitions. The affidavit-in-opposition simply states that it is the SIT who advised the Administrative Department of CAF & PD for taking necessary steps to cancel all the irregular and excess appointment by issuing a speaking order on the advice of the Law Department and that the Law Department advised for issuing the impugned show cause notices for affording a reasonable opportunity of being heard in compliance with the principles of natural justice. 22. On 22.2.2018, when W.P.(C) No.146 of 2018 was taken up for hearing, this Court passed the following order: 'Heard Mr. HS Paonam, learned senior counsel assisted by Mr. S.Gunabanta, learned counsel appearing for the petitioner. The present petition has been moved as an unlisted item. The grievance of the petitioner is that the petitioner though, the petitioner was appointed vide order dated 31.12.2016 on regular basis and serving as such till now and also has been given MGEL number which shows that she is a regular employee, the petitioner has been served a show cause notices dated 06.02.2018 based on certain reports of SIT-I, asking why the service of the petitioner should not be cancelled. Mr. HS Paonam, learned senior counsel for the petitioner, submits that the authority had not furnished to the petitioner a copy of the report of the SIT on the basis of which the proposed cancellation process have been initiated and petitioner will be greatly prejudiced if the petitioner is asked to submit a reply to the show cause notices without having knowledge of the SIT report. Accordingly, it has been submitted that no adverse action may be taken against the petitioner without making SIT report available to the petitioner. Let the matter be listed on 28.02.2018 to enable Mr. Athouba, learned GA to take necessary instructions. Till then, no adverse action may be taken against the petitioner on the basis of the impugned order dated 06.02.2018. List the matter on 28.02.2018.' 23. On 23.02.2018, in W.P.(C) No.152 of 2018, this Court passed the following interim order: 'Heard Mr. T.Momo learned counsel appearing for the petitioner. Issue notice to the respondents, returnable in 4 (four) weeks. Ms. Till then, no adverse action may be taken against the petitioner on the basis of the impugned order dated 06.02.2018. List the matter on 28.02.2018.' 23. On 23.02.2018, in W.P.(C) No.152 of 2018, this Court passed the following interim order: 'Heard Mr. T.Momo learned counsel appearing for the petitioner. Issue notice to the respondents, returnable in 4 (four) weeks. Ms. Sobhana, learned G.A. accepts notice on behalf of respondents No.1, 2 & 3. Hence, no formal notice is called for. List the matter on 12.03.2018 for consideration of the interim prayer. Till then, show cause notices dated 06.02.2018 shall remain suspended.' Admittedly, the said interim order is still in force. 24. Nothing has been produced by the respondents to show the vacancy position as on the date of issuing the appointments in favour of the petitioners. Admittedly, the names of the petitioners have been recommended by the duly constituted DPC. Only when the vacancies are available, the DPC has recommended the names of the petitioners for appointment. The appointment orders do not stipulate that their appointment is subject to the availability of vacancies. On the other hand, the appointment orders states that 'appointment of the candidates shall be subject to submission of complete police verification report and duly filled in offer forms by the concerned candidates to the Directorate'. Having allowed the petitioners to work for nearly one year at different places of postings, suddenly based upon the so-called report of the SIT-I, they cannot be called upon to show cause why their appointments should not be cancelled. Issuing show cause notices without supplying a copy of the report of the SIT-I to the petitioners is unsustainable in law, as there was no proof to show that the SIT-I has given adequate opportunity to the petitioners and only upon hearing the petitioners, it has submitted the report. 25. In view of the above and for the foregoing discussions, the impugned show cause notices are not sustainable in the eyes of law as the same have been issued by an authority who is not the appointing authority in complete arbitrary exercise of power. 25. In view of the above and for the foregoing discussions, the impugned show cause notices are not sustainable in the eyes of law as the same have been issued by an authority who is not the appointing authority in complete arbitrary exercise of power. Since the petitioners have been issued appointment orders based on their merit shown in the written examination as well as the recommendation made by the duly constituted DPC and since they were allowed to work for nearly one year in the posts, merely alleging irregularities, procedural lapses and surplus posts, which are not due to the fault on the part of petitioners, the appointment of the petitioners cannot be doubted or questioned by the respondents and the issuance of the impugned show cause notices to the petitioners is not warranted and the ground under which the impugned show cause notices are issued to the petitioners is unfounded and arbitrary in nature. 26. In the result, a) all the writ petitions are allowed. b) the impugned show cause notices dated 6.2.2018 in respect of the petitioners are set aside.