Manipur High Court
Shri Khaidem Narendrajit Singh vs The State Of Manipur Through The ... on 10 October, 2022
SHAMURAILATPA Digitally signed by
SHAMURAILATPAM SUSHIL SHARMA
M SUSHIL SHARMA Date: 2022.10.12 12:53:08 +05'30'
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IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C) No. 727 of 2019
1. Shri Khaidem Narendrajit Singh, aged about 24 years
old, S/O Khaidem Nilamani Singh of Sekta makha
Leikai, P.O. Lamlong, P.S. Lamlai, Imphal East District,
Manipur.
2. Shri Khaidem Dineshchandra Meitei, aged about 28
years old, S/O Khaidem Raghumani Meitei of Khurai
Konsam Leikai, P.O. Lamlong, P.S. Porompat, Imphal
East District, Manipur.
....Petitioners
-Versus-
1. The State of Manipur through the Principal
Secretary/Commissioner/Secretary/ (Consumer Affairs,
Food and Public Distribution) Government of Manipur,
Babupara, New Secretariat Building, Imphal-795001.
2. The Director, Consumer Affairs, Food and Public
Distribution, Government of Manipur, Sangaipurou,
FCS Complex, Imphal West District, Manipur-795140.
3. The Principal Secretary/Commissioner/Secretary (DP),
Government of Manipur, Secretariat Old Building,
Babupara, Imphal West District, Manipur-795001.
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4. The Secretary (Law), Government of Manipur, New
Secretariat Building, Babupara, Imphal West District,
Manipur-795001.
.....Respondents
WP(C) No. 208 of 2022
1. Shri Khaidem Narendrajit Singh, aged about 24 years
old, S/O Khaidem Nilamani Singh of Sekta makha
Leikai, P.O. Lamlong, P.S. Lamlai, Imphal East District,
Manipur-795001.
2. Shri Khaidem Dineshchandra Meitei, aged about 28
years old, S/O Khaidem Raghumani Meitei of Khurai
Konsam Leikai, P.O. Lamlong, P.S. Porompat, Imphal
East District, Manipur.
....Petitioners
-Versus-
1. The State of Manipur through the Principal
Secretary/Commissioner/Secretary (Consumer Affairs,
Food and Public Distribution) Government of Manipur,
Babupara, New Secretariat Building, Imphal-795001.
2. The Director, Consumer Affairs, Food and Public
Distribution, Government of Manipur, Sangaipurou,
FCS Complex, Imphal West District, Manipur-795140.
.....Respondents
WP(C) No. 727 of 2019 with WP(C) No. 208 of 2022 with WP(C) No 209 of 2022
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WP(C) No. 209 of 2022
1. Shri Khaidem Narendrajit Singh, aged about 24 years
old, S/O Khaidem Nilamani Singh of Sekta makha
Leikai, P.O. Lamlong, P.S. Lamlai, Imphal East District,
Manipur-795001.
2. Shri Khaidem Dineshchandra Meitei, aged about 28
years old, S/O Khaidem Raghumani Meitei of Khurai
Konsam Leikai, P.O. Lamlong, P.S. Porompat, Imphal
East District, Manipur.
....Petitioners
-Versus-
1. The State of Manipur through the Principal
Secretary/Commissioner/Secretary (Consumer Affairs,
Food and Public Distribution) Government of Manipur,
Babupara, New Secretariat Building, Imphal-795001.
2. The Director, Consumer Affairs, Food and Public
Distribution, Government of Manipur, Sangaipurou,
FCS Complex, Imphal West District, Manipur-795140.
.....Respondents
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioners :: Mr. HS Paonam, Sr. Advocate
Mrs. Ksh. Harichhaya, Adv.
For the Respondents :: Mr. Y. Ashang, GA
Date of Hearing and
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reserving Judgment & Order :: 16.09.2022
Date of Judgment & Order :: 10.10.2022
JUDGMENT AND ORDER
(CAV)
WP (C) No.727 of 2019 has been filed by the
petitioners to quash the impugned show cause notice dated
6.2.2018 and the office memorandum dated 19.8.2019 and to
direct the respondents to review and reconsider the decision of
the State Government for the proposed action against the
petitioners in terms of the impugned show cause notice as well
the office memorandum.
2. WP (C) No.208 of 2022 has been filed by the very
same petitioners to quash the impugned order dated 25.2.2021
and its corrigendum dated 26.2.2022 and consequently, direct
the respondents to allow the petitioners to join their respective
service as Store Keeper as has done in the case of other
similarly situated numbering 31 Civil Supply Inspectors, who
were appointed along with the petitioners.
3. WP (C) No.209 of 2022 has been by the
petitioners seeking a writ of mandamus directing the
respondents to consider the case of the petitioners and to issue
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necessary orders retaining the service of the petitioners as
Store Keeper in the CAF & PD Department like other similarly
situated Civil Supply, Inspectors who have been regularised
earlier.
4. Since the parties and the point for determination in
all three writ petitions are one and the same, they are taken up
together and disposed of by this common order.
5. The case of the petitioners is as follows:
The petitioners were appointed as Store Keeper
on the recommendation of a DPC held pursuant to the
advertisement dated 16.12.2016 and have joined the service
and were allowed to discharge their duties at Consumer Affairs,
Food and Public Distribution Department [CAF & PD] Office,
Sangaipurou. However, after some time, the petitioners were
not allowed to discharge duty at their posting place by the
authority without any valid reasons. Subsequently, a show
cause notice dated 6.2.2018 was served on the petitioners for
cancelling their appointment order on the basis of the report of
SIT constituted to investigate irregularities in the recruitment
process. Challenging the show cause notice, the petitioners
filed WP (C) No.797 of 2019, wherein this Court was pleased to
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restrain the respondents from acting upon the show cause
notice.
6. When the petitioners came to know that similarly
situated persons were allowed to join their posting place and
still continuing in service, the petitioners submitted
representations to the respondent authorities for allowing them
to join to their posting places as has been done in the case of
similarly situated persons. When the authority failed to consider
the representations, the petitioners filed WP (C) No.1075 of
2019 praying inter alia for allowing them to join to their posting
place, coupled with a prayer for directing the respondents to
consider and dispose of the representations. By the order dated
27.12.2019, the said writ petition was disposed of by directing
the respondents to consider and dispose of the representations.
7. However, only on the ground that pendency of the
writ petition challenging the show cause notice and the order of
the Department of Personnel to cancel the recruitment process
without considering the fact that some similarly situated persons
are allowed to join posting place, rejected the representations
of the petitioners vide order dated 13.1.2020. Challenging the
order dated 13.1.2020, the petitioners filed WP (C) No.78 of
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2020. On 19.2.2020, when the said writ petition was taken up
for hearing, the learned Advocate General produced a copy of
the order dated 18.2.2020 withdrawing and cancelling the order
dated 13.1.2020. As such, the Court observed that there is
nothing left to consider. Hence, WP (C) No.78 of 2020 was
disposed of observing that when the representations filed by the
petitioners are being considered, the observation made in WP
(C) No.1075 of 2019 dated 27.12.2019 shall be considered.
8. According to the petitioners, in total disregard of
the aforesaid orders, the representations filed by the petitioners
and other Civil Supply Inspectors have been rejected by the
authority vide order dated 25.2.2021 and its corrigendum dated
26.2.2021. Thereafter, after rejection of the representations
filed by the petitioners and other Civil Supply Inspectors, the
State authority have regularised the services of 31 Civil Supply
Inspectors, leaving aside the case of the petitioners vide orders
dated 15.10.2021 and subsequent posting orders dated
16.10.2021. Challenging the impugned order dated 25.2.2021
and its corrigendum, the petitioners filed WP (C) No.208 of
2022. The petitioners also sought direction on the respondents
to consider the case of the petitioners and issue appropriate
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orders retaining the services of the petitioners as Store Keeper
in the CAF & PD Department like other similarly situated Civil
Supply Inspectors, who have been regularised on 15.10.2021
and issued appointment orders dated 16.10.2021, WP (C)
No.209 of 2022 has been filed.
9. Resisting the writ petitions, the respondents 1 and
2 filed affidavits-in-opposition stating that in order to ascertain
the irregularities in the appointment to various posts which
undertook in 2016-2017 in CAF & PD, a special investigation
team was constituted to inquire into the matter on 27.2.2017
and the said team had requisitioned all relevant files from the
Administrative Department and Directorate of CAF & PD,
Manipur and Controller of Weights and Measures, Manipur
pertaining to recruitment process which includes the
recruitment process and subsequent appointment of 3 persons
to the post of Store Keeper vide order dated 4.1.2016 and
16.12.2016 against the vacancies of 2016-17. In the said
recruitment and appointment, the petitioners are included. The
SIT has conducted a probe and had submitted the following
findings:
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(a) Number of posts advertised and date :
3 posts notified vide notification
No.1/910/2015-DCAF&PD dated
16.12.2016.
Number of posts actually appointed : 2
posts.
Appointment Order Number :
1/910/2015-CAF&PD dated
03.01.2017.
Date of DPC : 3rd January, 2017.
(b) Appointment on 04.01.2017, on the
date of enforcement of Model Code of
Conduct, highly irregular.
(c) Marks tabulation sheets for SK-No
signature of 2nd Member.
(d) How a candidate who applied and sat
for the written examination and passed
the viva voce for a Quality Inspector
posts was recommended by the DPC
for the posts of Store Keeper can only
be explained by the members
themselves.
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10. It is stated that after taking proper advise from the
Department of Law and Legislative Affairs, Government of
Manipur, a show cause notice dated 6.2.2018 was issued and
the petitioners were not singled out and enough reasonable
opportunity of being heard was given to them by complying the
principles of natural justice and therefore, there is no infirmity in
the show cause notice.
11. It is stated that the Civil Supply Inspectors and the
petitioners are not similarly situated and 31 persons selected as
Civil Supply Inspectors in CAF & PD on 3.1.2017 were
regularised/appointed as per the Cabinet decision taken on
24.11.2021. The petitioners were appointed on 4.1.2017 i.e.
the day of the commencement of the Model Code of Conduct
and not on 3.1.2017. According to the respondents 1 and 2, it
is not true that the petitioners were discharging their duties to
the satisfaction of all concerned and after introduction of bio-
metrics in the office, the petitioners were not allowed to record
their attendance. In fact, vide letter dated 13.1.2017, the
Commissioner, CAF & PD informed the Chief Electoral Officer,
Manipur that new recruits have not been allowed to join duty.
Therefore, the statement of the petitioners are quite
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contradictory. The petitioners are not similarly situated persons.
After due consideration and pursuant to the order passed by
this Court in WP (C) No.1075 of 2019, the representation of the
petitioners was rejected vide order dated 25.2.2021 and since
there were typographical mistake in paragraph 15, a
corrigendum dated 26.2.201 was issued correcting the said
mistake. Therefore, the respondent authorities are right in
issuing the impugned order dated 25.2.2021 and a corrigendum
dated 26.2.2021. Hence, the writ petitions are liable to be
dismissed.
12. Assailing the impugned show cause notice, Mr.
HS Paonam, the learned senior counsel for the petitioners
submitted that the same has been issued without any authority
and in complete arbitrary exercise of power with a pre-
determination of terminating the petitioners from service,
inasmuch as the contents of the show cause notice which has
been actuated from the SIT report was not made available to
the petitioners and that no action has been taken on the officials
for which irregularity as contemplated in the impugned show
cause notice dated 6.2.2018 has been issued and the
subsequent office memorandum dated 19.8.2019. The learned
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counsel would submit that this Court may protect the right and
interest of the petitioners who were in service for more than 5
years after being appointed after following the constitutional
scheme of appointment.
13. Coming to the challenge made to the impugned
order dated 25.2.2021 and its corrigendum dated 26.2.2021,
the learned counsel for the petitioners submitted that the
conclusion of the SIT arrived at against the selection process
was on an inference rather than on a conclusive proof. The
learned counsel submits that as could be seen from the wording
used in the report as reflected in the show cause notice, the
recruitment process is sought to be cancelled on the basis of
suspicion of irregularity and other administrative laches not
attributable to the petitioners. Thus, before probing and taking
appropriate action against those personnel who have allegedly
committed the irregularity/procedural lapses or others, it would
be inappropriate to take action against the petitioners and
therefore, the impugned order dated 25.2.2021 and its
corrigendum dated 26.2.2021 having been actuated for vested
interest of some high political circle and in complete arbitrary
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exercise of power and therefore, the same are liable to be set
aside.
14. The learned counsel further submitted that the
action of the respondent authorities in restraining the petitioners
from joining their respective posting place and decision taken
for cancelling the recruitment in respect of appointed
candidates is barred by the principle of promissory estoppel
and, therefore, not legally sustainable in the eyes of law and
that the respondent authorities are not at liberty to play with the
source of livelihood of the petitioners in an arbitrary exercise of
powers.
15. The learned counsel for the petitioners submitted
that similarly situated persons have been allowed to join in their
post as Civil Supply Inspector vide orders dated 15.10.2021 and
16.10.2021, however, denying the petitioners to join their
posting place is smacked with the vice of arbitrariness and mala
fide and the same amounts to violation of the rights enshrined
under Article 14 and 16 of the Constitution of India.
16. On the other hand, the learned Government
Advocate submitted that pursuant to the report of the SIT and
after taking proper advice from the Department of Law and
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Legislative Affairs, Government of Manipur, impugned show
cause notice dated 6.2.2018 was issued and enough
opportunity was given to the petitioners by complying the
principles of natural justice and thereafter, rejected the
representation of the petitioners.
17. The learned Government Advocate would submit
that the representation of the petitioners could not immediately
be considered due to imposition of Covid-19 lockdown by the
Government with effect from 22.3.2021 for many successive
months and the function of the administrative section of the
Directorate of CAF & PD was paralysed. In fact, the office of
CAF & PD was compelled to focus on the distribution of
essential commodities and food grains under NFSA, PMGKAY
and OMSS and making these items available to the public as
well as stranded migrants.
18. The learned Government Advocate further
submitted that 31 persons selected as Civil Supply Inspector in
CAF & PD Department on 3.1.2017 were regularised/appointed
as per the Cabinet decision dated on 24.11.2021 and therefore,
the petitioners are not similarly situated persons and various
orders shown by the petitioners to treat them as similarly
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situated persons are not applicable to their case, as the same
were issued in different context and different posts. Thus, a
prayer is made to dismiss the writ petitions.
19. This Court considered the rival submissions and
also perused the materials available on record.
20. It is a fact on record that the notification calling for
applications from intending candidates for appointment to the
post of 21 Civil Supply Inspector, 3 Store Keeper, 14 Quality
Inspector and 16 LDC/OA Inspector was issued by the
Directorate of CAF & PD vide notification dated 16.12.2016.
Thereafter, a DPC for appointment to the posts, including the
Store Keeper was held on 3.1.2017 and result was announced
on 3.1.2017.
21. The issue involved qua the post of Store Keeper
in the present writ petition, out of 3 posts advertised, only 2 are
recommended by the DPC and accordingly appointment orders
were issued by the Directorate of CAF & PD in favour of the
petitioners on 4.1.2017 and according to the petitioners, they
joined the service as Store Keeper on 4.1.2017 fore noon.
According to the petitioners, there was no procedural lapses
while issuing the appointment orders and all norms of public
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employment was followed in the process of appointment. Most
importantly, there was no excess appointment in the case of
Store Keeper unlike in the case of Civil Supply Inspector.
22. According to the petitioners, the appointment of
one Th. Anumacha as Store Keeper has already been
cancelled by the respondent authority as he was allowed to
appear before the interview for the post of Civil Supply
Inspector, which post only the second petitioner was
recommended from the panel of merit list.
23. As could be seen from the records, in case of 31
Civil Supply Inspector who were appointed against the 21
sanctioned post by the same DPC and against whom show
cause notice dated 6.2.2018 was issued has now been
regularized/re-appointed by the order dated 16.10.2021.
24. Insofar as the issuance of the impugned show
cause notice dated 6.2.2018 is concerned, Mr. Y. Ashang, the
learned Government Advocate contended that irregularities,
procedural lapse and excess number of posts have arisen in the
appointment of various posts which undertook in 2016-17 in
CAF & PD Department and accordingly, SIT was constituted to
inquire into the matter. The SIT has conducted a probe and
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submitted its findings and after proper advice from the Law
Department, the impugned show cause notice has been issued.
The appointment of the petitioners was questioned mainly on
the ground that while the Model Code of Conduct was in force,
the appointment dated 4.1.2017 was made, which is irregular.
25. The learned Government Advocate, by placing
reliance upon the decision of the Hon'ble Apex Court in the case
of Special Director and another v. Mohd. Ghulam Ghouse
and another, AIR 2004 SC 1467, submitted that unless the
High Court is satisfied that the show cause notice was totally
non-est in the eye of law for absolute want of jurisdiction of the
authority to even investigate into fact, writ petitions should not
be entertained for mere asking and as a matter of routine and
the petitioner should invariably be directed to respond to the
show cause notice to take all stands highlighted in the writ
petition.
26. In Mohd. Ghulam Ghouse, supra, the Hon'ble
Apex Court held thus:
"5. ..... Unless, the High Court is satisfied
that the show cause notice was totally
non-est in the eye of law for absolute want
of jurisdiction of the authority to even
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investigate into facts, writ petitions should
not be entertained for the mere asking
and as a matter of routine and the writ
petitioner should invariably be directed to
respond to the show cause notice and
take all stands highlighted in the writ
petition. Whether the show cause notice
was founded on any legal premises is a
jurisdictional issue which can even be
urged by the recipient of the notice and
such issues also can be adjudicated by
the authority issuing the very notice
initially, before the aggrieved could
approach the Court. Further, when the
Court passes an interim order it should be
careful to see that the statutory
functionaries specially and specifically
constituted for the purpose are not
denuded of powers and authority to
initially decide the matter and ensure that
ultimate relief which may or may not be
finally granted in the writ petition is
accorded to the writ petitioner even at the
threshold by the interim protection,
granted."
27. In reply, by placing reliance upon the decision of
the Hon'ble Apex Court in the case of Siemens Limited v.
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State of Maharastra and others, (2006) 12 SCC 33, the
learned counsel for the petitioners submitted that when a show
cause notice is issued with premeditation, a writ petition would
be maintainable.
28. In Siemens Limited, supra, the Hon'ble Apex
Court held:
"9. Although ordinarily a writ court may not
exercise its discretionary jurisdiction in
entertaining a writ petition questioning a
notice to show cause unless the same
inter alia appears to have been without
jurisdiction as has been held by this Court
in some decisions including State of U.P.
v. Brahm Datt Sharma, (1987) 2 SCC
179; Special Director v. Mohd. Ghulam
Ghouse, (2004) 3 SCC 440 and Union of
India v. Kunisetty Satyanarayana, (2006)
12 SCC 28, but the question herein has to
be considered from a different angle viz.
when a notice is issued with
premeditation, a writ petition would be
maintainable. In such an event, even if
the court directs the statutory authority to
hear the matter afresh, ordinarily such
hearing would not yield any fruitful
purpose. (See K.I. Shephard v. Union of
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India, (1987) 4 SCC 434.) It is evident in
the instant case that the respondent has
clearly made up its mind. It explicitly said
so both in the counter-affidavit as also in
its purported show-cause notice.
29. Admittedly, the impugned show cause notice has
been suspended by this Court vide interim order dated 9.9.2019
passed in WP (C) No.727 of 2019 insofar as the petitioners are
concerned and the said interim order is still operating.
Aggrieved by the show cause notice, some of the individuals
have also filed WP (C) No.146 of 2018, wherein this Court
passed an order restraining the respondent authorities from
taking up any adverse action or proceedings pursuant to the
show cause notice.
30. After passing of the restraint order, when the
petitioners approached the competent authority by way of
representations seeking to allow them to resume their
respective duties, the said representations have not been
considered and therefore, the petitioners filed WP (C) No.1075
of 2019 praying for a direction to consider their case for allowing
them to discharge their duties at their posting place.
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31. By the order dated 27.12.2019, while disposing of
the said writ petition, this Court passed the following order:
"[7] Upon hearing the parties and taking
into consideration that the representation
submitted by the petitioners on
04.11.2019 before the respondent No.2 is
still pending for consideration, this writ
petition is disposed of at the motion stage
with a direction to the respondent No.2 to
consider the representation/application
made by the petitioners in accordance
with law and in the light of the
observations made by this Court herein
above. Let such consideration be made
within a period of one month from the date
of receipt of a copy of this order.
With the above observations and
directions, the writ petition stands
disposed of."
32. Thereafter, the respondent authority issued the
order dated 13.1.2020 whereby the representations of the
petitioners were disposed of by not granting their prayer for
allowing to join their posting place. Challenging the order dated
13.1.2020, the petitioners preferred WP (C) No.78 of 2020.
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When the aforesaid writ petition was taken up along with the
connected writ petitions being WP (C) Nos.52 and 55 of 2020
filed by the similarly situated Civil Supply Inspectors, the
learned Advocate-General, by producing an order dated
18.2.2020, submitted that the order dated 13.1.2020 has been
withdrawn and recording the submission of the learned
Advocate-General and upon perusing the order dated
18.2.2020, this Court disposed of WP (C) No.78 of 2020 on
19.2.2020 with an observation that when the representations of
the petitioners are being considered, the observation made in
WP (C) No.1075 of 2019 shall be considered. In total disregard
to the submission made by the learned Advocate-General and
recorded in the order dated 19.2.2020 passed in WP (C) No.78
of 2020, the impugned order dated 25.2.2021 and its
corrigendum came to be issued that too pending Contempt
Case (C) No.21 of 2020.
33. In the impugned order dated 25.2.2021, after
mentioning the findings of the SIT, the second respondent -
Director of CAF & PD, Manipur, in paragraphs 8 to 15, stated
as under:
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"8. Whereas, the High-Powered
Committee chaired by Chief Secretary,
Manipur was constituted to monitor steps
taken by the Administrative Department
on the SIT-I report vis-à-vis provisions
under Manipur Public Servants Liabilities
Rules, 2006;
9. Whereas, the Hon'ble High Court,
Manipur in its Order dated 19.02.2020
passed in W.P.(C) No.78 of 2020 agreed
to the prayer of the State Govt. for
allowing it to reconsider the
representations of the petitioners afresh;
10. Whereas, it is the contention of the
Department of CAF&PD, Manipur that
there is no question of discrimination
against the petitioners as all actions were
taken amidst the evolving circumstances
in compliance of Hon'ble High Court's
orders and competent Government's
orders/directives, specifically in pursuit of
complying DP's order No.27/2/17-
Election/DP(Pt.I) dated 13.09.2017
issued by the Joint Secretary (DP),
Government of Manipur to cancel all
irregular and excess appointments by
issuing speaking order after taking the
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advice of Law Department and fresh
process be initiated with approval of
cabinet;
11. Whereas, it may not be out of place to
state that the representations of the
petitioners could not be immediately
reconsidered due to Covid lockdown that
began to be imposed by the State Govt.
w.e.f. 22.03.2021 for many successive
months and the functioning of the
administration section of the office of the
Directorate of CAF&PD was paralysed as
a result;
12. Whereas, this office was compelled to
focus on the distribution of essential
commodities and foodgrains under
NFSA, PMGKAY and OMSS and making
these items available to the public during
the height of the pandemic to the effect of
rendering all other normal administrative
functions of the Department subservient
to the more urgent objective of making
PDS rice, dal and chana available to the
general public and migrants huddled and
stranded elsewhere;
13. Whereas, in the meantime, the
undersigned is in receipt of a copy of
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Contempt Petition in CONT.CASE(C)
No.21 of 2021, Ref. W.P.(C) No.78 of
2020;
14. Whereas, nothing new to influence,
guide and direct the undersigned has
emerged including but not limited to
cancellation or dilution of the SIT-I
findings;
15. Now, therefore, after proper
application of mind, without prejudice to
any individual or entity, and in
consideration of the prayers made by the
petitioners in their
representations/applications, the Director
(CAF&PD), Manipur after giving due
deference to the observations of the High
Court in this regard, the representations
of the petitioners dated 21.09.2020 have
been examined and reconsidered afresh
and it is found that their applications for
discharging their duties Store Keeper in
the Department of CAF&PD cannot be
entertained and stand rejected and are
hereby disposed in compliance of the
Hon'ble High Court, Manipur Order dated
19.02.2020 passed in W.P.(C) No.78 of
2020 (Khaidem Narendrajit and Ant) read
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with analogous Order of the High Court
dated 18.12.2019 passed in W.P.(C)
No.1026 (Shri Kunanjit & 8 Ors)."
34. It is pertinent to note that while disposing of
W.P.(C) No.78 of 2020, this Court in paragraph 4 recorded as
under:
"[4] Mr. N. Kumarjit, Leader Advocate
General, Manipur further submits that
when the representations filed by the
petitioners are being considered, the
observations made by this Court in the
order dated 27.12.2019 passed in
W.P.(C) No.1075 of 2019 shall be
considered."
35. As extracted above, while disposing of W.P.(C)
No.1075 of 2019, this Court directed respondent No.2 therein
to consider the representation of the petitioners in accordance
with law and in the light of the observations made therein. As
stated supra, though pursuant to the direction of this Court in
W.P.(C) No.1075 of 2019, the respondent authorities
considered the representation of the petitioners dated
4.11.2019 and passed orders on 13.1.2020, the said order
dated 13.1.2020 was withdrawn, thereby disallowing the
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petitioners from joining their place of posting in the Department
and also stated that it is duty bound to comply with the direction
of the Department of Personal vide letter dated 13.9.2017.
36. According to the respondent authorities, letter
dated 13.9.2017 stipulates to cancel all irregular and excess
appointments by issuing speaking order after taking the advice
of Law Department and fresh process be initiated with approval
of cabinet.
37. As stated supra, the appointment of the petitioners
is not irregular and they were appointed as Store Keeper after
obtaining approval of the Government of Manipur, Department
of CAF & PD by an order dated 4.1.2017. The petitioners have
also joined duties by submitting joining reports to the Director of
CAF & PD on 4.1.2017 forenoon.
38. When the appointment of the first petitioner
pursuant to the DPC dated 3.1.2017 for the post of Store
Keeper and when the appointment of the second petitioner from
the wait list by the same DPC for the post of Store Keeper after
cancelling the appointment of Amumacha on 4.1.2017 and the
petitioners having joined the said post at the forenoon of
4.1.2017 before enforcement of the Mode Code of Conduct, it
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cannot be contended that their appointment is irregular. In fact,
the DPC proceedings has not been cancelled and its
recommendation, the approval of which has already been
conveyed by the Government is still very much in force and is
valid. Since the Model Code of Conduct is not in force when
the petitioners joined in the fore noon of 4.1.2017, the SIT
cannot give its findings that the appointment on 4.1.2017, on
the date of enforcement of Model Code of Conduct highly
irregular. Only in pursuance of the notification dated 3.1.2017
and the letter dated 4.1.2017, the petitioners were appointed as
Store Keeper vide order dated 4.1.2017 against the three
sanctioned posts advertised vide notification dated 16.12.2016
in the Department with the approval of the State Government
and in terms of the recommendation of the competent DPC held
on 3.1.2017.
39. The case of the petitioners is also strengthened by
the production of the order passed in WP (C) No.279 of 2021
etc. batch, dated 12.4.2022, wherein the memorandum of the
Chief Secretary, Government of Manipur dated 4.1.2017 in
respect of application of Model Code of Conduct was subjected
for discussion. This Court, after thorough discussion held that
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the application of Model Code of Conduct 2017 in the said case
does not arise, as on the date of issuance of the Model Code of
Conduct the petitioners were joined service. This Court also
observed that by citing the commencement of Model Code of
Conduct, the appointment orders cannot be cancelled by the
Commissioner of CAF & PD. Aggrieved by the judgment dated
12.4.2022, the State has filed WA.No.91 of 2022 etc. batch and
by the judgment dated 26.8.2022, the Hon'ble First Bench of
this Court dismissed the appeals thereby confirming the order
of the learned Single Judge.
40. A perusal of the finding recorded by the SIT, it is
clear that the finding arrived at by the SIT is without affording
an opportunity of hearing. When an enquiry is conducted in
regard to the appointment and if any adverse finding is to be
given in the said enquiry, an opportunity must be given to a
person who is going to be affected by the said enquiry. Any
such adverse finding in the said enquiry without giving chance
to present the case shall not binding on the individual. In the
case on hand, admittedly, no such opportunity was given to the
petitioners by the SIT. Therefore, the finding of the SIT which
adversely affects the petitioners cannot be acted upon to affect
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their right for the simple reason that the same was one sided.
Since the enquiry and the report of the SIT is one sided without
affording opportunity to the petitioners, based on the report of
the SIT, the respondent authorities cannot issue show cause
notice for termination/cancellation of the service of the
petitioners on the allegation of irregularities, procedural lapses
and excess number of appointment beyond the advertised
posts.
41. As stated supra, in the case of appointment of
Store Keeper, there was no excess appointment, as out of three
advertised posts, only two have been recommended i.e. the
petitioners herein. The alleged irregularities/procedural lapses
were of no fault of the petitioners and were said to be committed
by the officials of the State Government, wherein the petitioners,
who participated in the recruitment has no role of play. That
apart, the show cause notice dated 6.2.2018 itself is indicative
of the fact that the State Government is pre-determined to
cancel the appointment of Store Keeper after a gap of more
than a year when the petitioners are discharging their duties
pursuant to the appointment order dated 4.1.2017. Thus, it has
been clearly established that the impugned show cause notice
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dated 6.2.2018 is mere formality which itself was issued by the
authority who is not the appointing authority in complete
arbitrary exercise of power. Further, the decision of the
State Government to terminate the services of the petitioners is
violative of Article 21 of the Constitution of India.
42. As far as the no signature of the second Member
in the marks tabulation sheets is concerned, the learned
counsel for the petitioners submitted that the same may be bona
fide mistake which is curable and it should not render the
proceedings of the DPC null and void. This Court finds some
force in the submission made by the learned counsel for the
petitioners.
43. There was no allegation on the part of the said
second Member that he was not present nor he did not take part
in the proceedings of the said DPC. In fact, the same is at most
a mere bona fide mistake and not an illegality. Moreover, any
such bona fide mistake on the part of the officials concerned
should not be used as a tool to cancel the appointment of the
petitioners. In their capacity as candidates of the said post, the
petitioners at most are to give their best performance in the said
DPC which they have also done. In such a situation, raising of
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ground of no signature of second Member is not a good ground
in the interest of justice, as the same is very much curable
mistake. As rightly argued by learned counsel for petitioners
that a bona fide mistake on the part of the official concerned
requires to be corrected and the same does not affect the rights
of anybody when corrected.
44. It is to be mentioned that by the interim order, this
Court suspended the show cause notice dated 6.2.2018 vide
order dated 9.9.2019. Passing of the aforesaid interim order
was also brought to the knowledge of the respondent
authorities. However, despite having knowledge about passing
of the interim order for not acting upon the said show cause
notice and also the appointment order so given to the petitioners
has not yet cancelled or terminated from service by any
authorities. Thus, in total disregard of the order of this Court,
the State authorities have restrained and/or disallowed the
petitioners to join their services. The non-consideration of the
case of the petitioners by the respondent authorities as regards
joining of their services by extending the benefits which has
already given to the similarly situated persons is an act of
discrimination. Thus, the finding of the Director of CAF&PD
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rejecting the representations of the petitioners by the impugned
order dated 25.2.2021 that their applications for discharging
their duties as Store Keeper in the Department of CAR&PD
cannot be entertained is unsustainable in the eye of law, as the
same has been passed mechanically without considering the
true spirit of the order earlier passed by this Court.
45. At the end, it is apposite to mention that pursuant
to the direction of this Court, the petitioners have submitted
representations on 21.9.2020 for consideration of their case
afresh. 31 Civil Supply Inspectors, who were appointed in
excess of vacancies have also submitted their representations.
All the representations of the petitioners and the aforesaid 31
Civil Supply Inspectors have been rejected. Aggrieved by the
rejection of the representations, the Civil Supply Inspectors
have filed WP (C) No.256 of 2021 and pending the said writ
petition, they have been regularised on 15.10.2021 and
16.10.2021 leaving aside the petitioners. The non-consideration
of the case of the petitioners, while considering the aforesaid 31
Civil Supply Inspectors, has not been properly explained. On
the ground also, the impugned order dated 25.2.2021 and its
corrigendum dated 26.2.2021 in respect of the petitioners are
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liable to be set aside. Denying the benefits of regularisation
only in respect of the petitioners is more or less a perfunctory
decision disregarding the proceedings of the DPC and
therefore, it would be appropriate to direct the respondent
authorities to consider the case of the petitioners and issue
appropriate orders regularising the service of the petitioners like
in the case of 31 Civil Supply Inspectors in the interest of justice.
46. It is also pertinent to note that the conclusion of the
SIT arrived against the selection process was on an inference
rather than on a conclusive proof. As could be seen from the
wording reflected in the show cause notice, the recruitment
process is sought to be cancelled on the basis of the suspicion
of irregularity and other administrative laches not attributable to
the petitioners. Before probing and taking appropriate action
against those officials who have allegedly committed the
irregularity, procedural lapses or otherwise, it would be
inappropriate to take action against the petitioners and,
therefore, non-consideration of the case of the petitioners
despite considering the case of other similarly situated persons
is quite unjust and arbitrary, apart from violation of Article 14
and 16 of the Constitution of India.
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47. For the foregoing discussions, this Court is of the
view that the petitioners have established their case for
interference in the impugned orders and for direction on the
respondent authorities to consider the case of the petitioners
and issue appropriate orders regularising their services.
48. In the result,
[1] The writ petitions are allowed.
[2] The impugned show cause notice
dated 6.2.2018 and the office
memorandum dated 19.8.2019 are
quashed.
[3] The impugned orders dated 25.2.201
and its corrigendum dated 26.2.2022
are also quashed.
[4] The respondent authorities are
directed to consider the case of the
petitioners and issue appropriate
order retaining the service of the
petitioners as Store Keeper in the
CAF & PD Department like other
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similarly situated Civil Supply
Inspectors, who have been
regularized vide order dated
15.10.2021 and 16.10.2021.
[5] The said exercise is directed to be
completed within a period of eight
weeks from the date of receipt of a
copy of this order.
[6] No costs.
JUDGE
FR/NFR
Sushil
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