G. Ratna Devi vs State of Manipur and Others

J.N. Sarma, J.—This writ application has been filed by the Petitioner basically challenging the order of termination dated 16.1.89 issued by the authority, By the impugned order which is Annexure A/1 to the writ application, the authority terminated the services of 5 (five) persons including that of the Petitioner. The grounds of termination are as follows:

i) That the Petitioner was not qualified under the relevant recruitment Rules to be appointed to the post held by her.

ii) That her initial appointment was on officiating basis without being considered by the D.P.C.

Initially the Petitioner was appointed on 28th November, 1986 as Assistant Project Officer, i.e., Annexure A/3 to the writ application. Thereafter, vide Annexure- A/4 the service of the Petitioner along with 5 (five) Ors. were terminated m 1st of September, 1988. These Petitioners filed Civil Rule Nos. 401 to 405 of 1988 and these Civil Rules were disposed of by the Division Bench of this Court ride judgment dated 13.12.88 and the Division Bench quashed the order of termination dated 1.9.88 and directed the authority to issue show cause notice to the Petitioner and Ors. . Accordingly, show cause notice was issued on 22.12.88 side Annexure-A/6 to the writ application and show cause was submitted. There (sic) the impugned order was passed.

The second limb of attack in the Civil Rule is the legality and validity of the (sic) i.e. Education Department Manipur (Asstt. Project Officer, Adult Education) recruitment Rule, 1985. The Rules were framed by the Authority under Article 309 in the Constitution of India and this Rule came into force from October 9,1985 as (sic) be evident from Annexure-A/7 to the writ application. So, even before the Petitioner was appointed, these Rules were in the field.

I have heard Sri Th. Ibobi singh, learned Sr. Advocate for the Petitioner and learned Advocate General for the Respondents. No. 1 and 2. None appeared for the Respondent No. 3. An affidavit in opposition has been filed on behalf of the Respondent No. 3 as well as on behalf of Respondent Nos. 1 and 2. An affidavit-in-(sic) has also been filed. The learned Advocate for the Petitioner urged the following points:

i) Whether the State Government has got the right to change and alter the basic scheme i.e., A/2 and A/9 of the Government of India, by framing a new R.R. i.e., A/7 and enforce it?

ii) Whether the R.R. i.e. A/7 framed by the Respondent Govt. was ultravires of 309 proviso of the Constitution of India and basic schemes i.e. Annexure A/2 and Annexure-A/9 framed by the Government of India ?

iii) Whether the proceding initiated way in accordance with law ?

iv) Whether the impugned order dt. 16.1.89 i.e, Annexure-A/1 was valid in law ?

The basic thrust of the argument of the learned Advocate for the Petitioner is that this scheme of adult education was introduced by the Govt. of India and the State Govt. does not have any power to frame Rules regarding recruitment etc, In order to appreciate this contention, let us have a look at Annexure-A/2 to the writ application, i.e., letter dated June 2, 1978 issued by the Govt. of India, Ministry of Education and S.W. Department of Education, New Delhi. In the appendix to this letter, the selection procedure is slated as follows:

(b) Selection Procedures: Rather than placing reliance on routine promotion of non-selective transfer from other cadres, it is important that persons who have given evidence of interest in education and those with special drive should be assigned this responsibility and necessary flexibility in the procedures should be provided. Source of selection need not be confined to the cadres of the administrative department dealing with adult education. It should be possible to draw suitable persons from other department, even open market, on deputation or contract as may seem appropriate.

So, it appears that the posts are to be created by the State Govt. and not by the Central Govt. The Central Govt. is only the funding agency for the programme and actual implementation is to be carried out by the State Govt. through employees of its own choice. After all the Petitioner is an employee of the State Govt. and if the Petitioner is an employee of the State Govt. the State Govt. shall have the power to frame Rules under Article 309 of the Constitution of India. Article 309 of the Constitution in its entirity is quoted below:

Recruitment and conditions of service of persons serving the Union or a State - Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any Slate:

Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and post until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.

Basically, the power of appointment belonging to the executive will be subject to the legislative control, The Article 309 of the Constitution does not prohibit the prescription of reasonable rules for selection or qualification for appointment for securing efficiency in service. According to Rule which was in existence, the post of Assstt. Project Officer has to be filled up by promotion from amongst the Supervisor and A.C.O. There was no provision of direct recruitment and as such the Petitioner could not be considered for appointment on regular basis as direct recruitment under the said existing rule at that point of time. Earlier, when the Petitioner approached this Court the legality and validity of this rule was not challenged. So, that will be deemed to be barred by the principle of constructive res-judicata. Further, the authority in its wisdom in the recruitment rule may make provision that certain posts shall be filled up by promotion and such a rule cannot be struck down by invoking Article 14 and 16 of the Constitution of India.

The other ground urged by the learned Advocate for the Petitioner that as the scheme was centrally sponsored scheme, the State Govt. does not have the power to frame Rules for recruitment. If this contention is accepted, there will be chaotic condition in the service jurisprudence inasmuch as the State Govt. will not have the power to frame rules with regard to its own employees. That cannot be deemed to be the purpose of Article 309 of the Constitution. It also cannot be accepted that the service of the Petitioner was not in connection with the affairs of the Stale. The scheme though may be sponsored by the Central Govt., the persons are the employees of the State Govt. and the State Govt. will have undoubted power to frame Rules. So, this contention of the learned Advocate for the Petitioner fails.

The next question is that whether the termination of service of the Petitioner vide Annexure-A/1 is legal and valid as indicated above ? The Petitioner was not appointed in accordance with the service Rule in existence and in that view of the matter, her service was terminated.

That being the position, there is no merit in this writ application and the same dismissed. Stay order, if any, passed earlier shall stand vacated.