R.K. Randhoni Devi vs State of Manipur and Others

The controversy raised in this petition revolves round the appointment to the post of Special Officer, and to be precise the appointment and regularisation of service of the respondent No. 3 to the said post in the Tribal Development Department under the Govt. of Manipur which has occasioned in the following circumstances.

Recruitment to the post of Special Officer in the Tribal Welfare Department under the State of Manipur is regulated by a set of Rules known as Manipur (Special Officer/Tribal Welfare) Recruitment Rules, 1982. The Rules apply to the posts specified in column-1 of Manipur Public Service Commission Form No.8 of the Rules. The post of Special Officer is a Class-I Gazetted post. The post was shown as a selection post. The Regulation prescribed the Masters Degree of a recognised university as an essential qualification. The method of recruitment is provided in column-10 and 11 of the Rules which reads as follows:-

''" 10. Method of rectt. whether by direct rectt. or by promotion or by deputation/transfer and percerentage of the vacancies to be filled by various methods

By promotion failing which by direct recruitment.

In case of rectt. by promotion / deputation/ transfer, grades from which promotion/ deputation /transfer to he made

Promotion Assistant-cum-ca re taker of the Tribal Welfare Department having 3 years regular service in the grade.

Note:- The promotees should fulfil the condition of qualify-ing service for promotion on the date of which the proposal is sent to the Commission provided that there is a person who possess the requisite qualifications and who are senior to him in the grade shall also be considered irrespectively of the fact whether or not they fulfil the recruitment as to the minimum period mentioned above,

Any period of ad hoc appointment prior to the regular isation of their appointment in consultation with the Commission shall not be counted in the period of service prescribed for promotion......"

The petitioner entered into the service of the Department initially as a Lower Division Assistant on 25-6.1976 who was later on promoted to the post of Librarian (Upper Division Assistant) on 7.5.1979 on the recommendation of the DPC meeting held on 20.3.1986. The petitioner was appointed on regular basis to the post of Assistant-cum-Caretaker on promotion in the pay scale of Rs. 575-25-700-EB-30-940-1380 p.m. with usual allowances admissible under the Rules with immediate effect against the post created vide order dated 19.3.1979 bearing No. 1/31/79-TW previously held by Md. Siraj Ahamad Shah, promoted to the post of Special Officer. By an order dated 30th August, 1990 said Md Siraj Ahamad Shah, Special Officer of the Deptt. along with another person was promoted to the post of Deputy Director in the Department of Tribal Development from 3rd August, 1990 against the post created from 3rd August, 1990. By order dated 30th November, 1990 the above order was-modified which reads as follows:-

"No.10/37/89-TD(Pt): In partial modification of this Govt. orders of even number dated 30.8.1990 and 30.10.1990 and on the recommendation of the DPC constituted with M.P.S.C. held on 3rd August, 1990, the Governor of Manipur is pleased to appoint the following persons on promotion to the post of Deputy Director in the Department of Development of Tribal and Backward Classes, Manipur temporarily in the scale of pay of Rs. 2800-75-400-100-4700 p.m. with usual allowances as admissible under rules with effect from 3rd August, 1990 against the vacant post created vide order Nos. shown against their names.

SI. No. Name of officer with designation Promoted Creation order No. & date

1 2 3 4

Shri O. Budha singh Asstt. Director/TD Deputy Director No. 1/368/79-TW dt. 2.8.1979

Md. Siraj Ahmed Shah Special Officer /TD Deputy Director No.1/727/81-TD dt. 26.2.1982

They will be on probation for a period of 2(two) years.

....."

According to the petitioner she became entitled for being considered for promotion to the post of Special Officer in the Department as per the rules in 1989 on completion of her 3 years regular service in the grade as Assistant-cum-Caretaker of the Department. Instead of considering the case of the petitioner for promotion as per rules the respondents 1 and 2 in amost illegal fashion appointed the respondent No. 3 and regularised the ad hoc service of the respondent No. 3 on regular basis in "temporary officiating capacity" in the scale of Rs. 800-1675 with usual allowances as admissible under the rules with effect from 24.5.86 vide order dated 7th January, 1987. By order dated 21st February 1991 the respondent No. 2 issued a corrigendum and deleted the words "and in temporary officiating capacity" in between the words ''bias'' and ''in the scale'' occurring in the order No. 10/44/83-TD dated 7.1.87. The petitioner pleaded that the respondent No. 3 could not have been regularised and appointed as a full fledged Special Officer vide the impugned order dated 7.1.1987 since on that date the said post was not held by Md. Siraj Ahmed Shah who arc the relevant time was only holding the charge of Deputy Director on ad hoc basis. The aforesaid post became vacant only on the promotion of Md. Siraj Ahmed Shah. Special Officer vide order dated 30th August, 1990 which was subsequently modified by the order dated 30th November, 1990. The petitioner questioning the legality and validity of the appointment of the respondent No.3, also claiming her promotion to the said post, submitted representation before the authority demanding justice. Petitioner also issued legal notice on the authority claiming her right to the post and on her failing to get appropriate remedy from the respondents 1 and 2 moved this court by way of this writ petition questioning the actions of the respondent No.1 in appointing the respondent No.3 to the post of Special Officer and further claimed her right to be appointed to the said post.

The respondents contested the case and filed their respective affidavits. The respondents 1 and 2, the State of Manipur and the Commissioner and Secretary, Tribal Welfare Department in its affidavit stated that the post of Special Officer became vacant in 1983 and the respondent No. 3 was appointed as Special Officer in the Directorate on ad hoc basis for a period of one year with the pay (pre revised pay) against the post fell vacant on the promotion of Md. Siraj Ahmed Shah, to the post of Deputy Director on ad hoc basis for one year. The said appointment of the respondent No. 3 was extended from time to time which was later on regularised with effect from 24.5.1986 vide order dated 7.1.1987. The respondents further stated that since the petitioner did not complete three years of service as contemplated by the Rules the question of promotion of the petitioner to the said post at that stage did not arise. The respondent No. 3 also filed an affidavit denying the disputing the claim of the petitioner. The respondent No. 3 claimed that he was initially appointed as Special Officer on ad hoc basis for a period of one year or till the post was filled up on regular basis. He was holding the said post from the date of appointment till the same was regularised. The respondent further challenged the maintainability of the writ petition on the ground of laches and delay. The respondent No. 3 stated that he was appointed as Special Officer in 1983 which was extended from time to time and finally his service was regularised in 1987. By order dated 21.2.1991 the Government only issued a corrigendum. The writ petition, according to the respondent, was therefore, liable to be dismissed on the ground of laches.

Mr I. Lalitkumar, learned counsel appearing on behalf of the petitioner questioned the legitimacy of the order of rcgularisation of service of the respondent No. 3 as Special Officer by the impugned order as arbitrary, discriminatory and violative of the equality clause guaranteed under articles 14 and 16 of the Constitution. The learned counsel referring to the Rules of Recruitment submitted that the Rules prescribe the method of appointment/recruitment of Special Officer. The Rules contemplate only one mode of appointment to the post of Special Officer by way of promotion. Other method of appointment to the post is, therefore, forbidden by the Rules. The learned counsel submitted that recruitment to the post of Special Officer by promotion is the rule and appointment by direct recruitment is an exception only after exhaustion of the procedure prescribed by the Rules. The post of Special Officer fell vacant only on the promotion of Md. Siraj Ahmed Shah, in the year 1990 when said Shah was promoted to the post of Deputy Director on the recommendation of the DPC that was held on 3rd August, 1990. The learned counsel submitted that the order of appointment of aforesaid Md. Siraj Ahmed Shah, clearly indicate that the post of Special Officer fell vacant only on 3rd August. 1990 and, therefore, question of appointing the respondent No.3 to the post of Special Officer on 24.5.1986 or 7th January, 1987 cannot/did not arise. The learned counsel referred to the office memo dated 31.5.1985 by which Govt, of Manipur formulated a policy for regularisation of ad hoc appointment. Referring to the aforesaid office memo dated 31.5.1986 Mr. Lalitkumar, learned counsel submitted that the aforesaid Rules delineated the procedure for regularising the ad hoc appointees in paragraph 2. The regularisation of the said respondent was made in derogation of the said procedure and, therefore, under no circumstances the said regularisation of the respondent No. 3 can be upheld under the law. The learned counsel in support of his contention referred to the following decisions of the Supreme Court:-

B.N. Nagarajan and Others Vs. State of Karnataka and Others,

Union of India and Others Vs. K.K. Vadera and others,

Satyanarayan Sharma and others Vs. National Mineral Development Corporation Ltd. and others,

Nalini Kant Sinha Vs. State of Bihar and others,

Union of India and another Vs. Moti Lal and others,

Mr. A. Nilamani Singh, learned Sr. counsel appearing on behalf of the respondent No. 3 first questioned the maintainability of the writ petition on the ground of laches. The learned Sr. counsel submitted that the appointment of the respondent No. 3 as a Special Officer was regularised as far hack as in 1987 and for more than 12 years the said respondent is working in the said post. The learned counsel submitted that on the ground of delay and laches the writ petition is liable to be dismissed. In support of his contention the learned counsel referred to the following decisions:-

Bhoop Singh Vs. Union of India and others,

State of Maharashtra Vs. Digambar,

Jagdish Lal and others Vs. State of Haryana and others,

(1998) 8 SCC 782 (Union oflndia & Anr v. S,S. Kothiyal & Ors.)

The learned counsel further submitted that even otherwise there is no merit in the writ petition since no injustice as such has been done to the petitioner. The petitioner was not eligible to hold the post of Special Officer when the respondent No. 3 was appointed in 1987 to the said post and that neither law nor equity can come into aid of the petitioner and, therefore, the writ petition is liable to be dismissed. The learned Sr. counsel further submitted that relief under Article 226 of the Constitution is a equitable remedy and equity was all along in favour of the respondent No. 3 who is holding the said post for more than 16 years. Mr. Nilamani Singh, learned Sr counsel lastly submitted that whatever infirmities might have been crept in appointing the respondent No. 3 as the Special Officer on and from 24.5.1986 to 30.11.1990 that is the date on which the post of Special Officer fell vacant on the promotion of Md. Siraj Ahmed Shah, who was regularised by the Cabinet'' decision on 24.7.1992 by creating a supernumerary post of Special Officer in the department for the period of 24.5.1986 to 30.11.1990 vide Govt, order dated 31st July, 1992. The learned counsel referring to the order dated 31st July, 1992 as revealed from Annexure-C/4 of the supplementary affidavit in opposition of the respondent No. 3 submitted that the State Govt. ordered the ex post facto appointment of the respondent No. 3 as a Special Officer in the department for the aforesaid period and, therefore, whatever irregularity might have been crept in earlier was remedied by the aforesaid Govt. order. From the narration of facts as mentioned above it thus emerges that the respondent No. 3 was appointed as Special Officer in the Directorate vide order dated 21st March, 1983 on ad hoc basis far the period of one year against the post vacated by Md. Siraj Ahmed Shah due to the promotion of said Shah to the post of Deputy Director in the Department on ad hoc basis for a period of one year or till the post was filled upon regular basis which was earlier. From the order of appointment dated 21st March, 1983 it thus appears that the respondent No. 3 was appointed on ad hoc arrangement to man the post that was held by Md. Siraj Ahmed Shah substantively and who was only holding the Office of Deputy Director on ad hoc basis. Md Siraj Ahmed Shah was holding the post of Deputy Director purely on ad hoc basis till 3rd August, 1990 that is till the date of his promotion and appointment against the vacant post created from 3rd August, 1990 on the recommendation of the DPC held on 3rd August, 1990 vide order dated 30th August, 1990. Till the order of promotion was passed on 30th August, 1990/30th November, 1990 promoting Md. Siraj Ahmed Shah to the post of Deputy Director Md. Siraj Ahmed Shah was holding the post of Special Officer substantively. The said Shah was holding the post of Special Officer in substantive capacity till the aforesaid order was passed. The aforementioned Md. Siraj Ahmed Shah was only holding the post of Deputy Director at the relevant time ex-temporaneously on ad hoc/stop gap arrangement. The post of Deputy Director was created on 26.2.1982 vide Govt. order No. 1/727/81-TD dt. 26,2.1982 but the same was substantively filled up on and from 3rd August. 1990 by promoting and appointing Md. Siraj Ahmed Shah vide order dated 30th August/30 November, 1990. The initial appointment order of the respondent No. 3 clearly indicates that his appointment was made on ad hoc basis against the post vacated by Md Siraj Ahmed Shah due to his promotion to the post of Deputy Director on ad hoc basis for a period of one year or till the post of Deputy Director is/was filled up on regular basis whichever was earlier. The purported order of regularisation of the ad hoc appointment of the respondent No. 3 dt. 7.1.1987 under the circumstances did not in any manner effected the nature and character of the post held by the respondent No. 3. The respondent No. 3, notwithstanding the aforesaid order, continued to be an ad hoc appointee. The said post of Special Officer on 7.1.1987 was substantively held by Md Siraj Ahmed Shah. The said infirmities are not removed by the order dated 21st February, 1991 by deleting the words "and in temporary officiating capacity" as mentioned in the order dated 7.1.1987. For all intents and purposes the respondent No. 3 was holding the post of Special Officer on ad hoc measure so much so till 3rd August, 1990 it was only Md. Siraj Ahmed Shah who was holding the post of Special Officer in substantive capacity. The office memorandum dated 31.5.1986 read with office memorandum dated 4.8.1996 cannot rescue the inherent infirmity contained in the order dated 7.1.1987 as well as the order dated 21st February, 1991. The office memorandum under No. 3/2/85-DP(I) dated 31.5.1986 as reflected in the impugned order dated 7.1.1987 is an executive instruction for regularisation of ad hoc appointment in the manner indicated in paragraph 2 of the said memorandum, paragraph 2 of the said memorandum reads as follows:-

"2. The matter has been reviewed by the Govt. and decided as under:-

A. All these ad hoc appointees,

(a) who were appointed upto 31st December, 1984 against vacancies in the direct recruitment quoted under Class-I & II posts; and

(b) who continue to hold their respective posts on ad hoc basis on 24th May, 1986; and

(c) who fulfil all the requirements excepting age limit laid down under relevant recruitment rules for appointment to such posts;

may, on the analogy of the decisions taken by the Govt. of West Bengal and Bihar in regularising such ad hoc cases, be regularised with effect from 24th May, 1986 without requisitions in such cases beings made to MPSC as these cases are pending since long and, wherever such requisitions have already been made but no recommendation on such requisitions have been made by the MPSC the same may be withdrawn.

........"

The said memorandum only covers those ad hoc appointees who were appointed upto 31st December, 1984 against vacancies in the direct recruitment quota under Class-I & II posts and who continue to hold the respective post on ad hoc basis on 24th May, 1986 and who fulfil all the requirements excepting the age limit laid down under Recruitment Rules for the appointment to such posts. The Rules of Recruitment are already alluded. The post of Special Officer is a promotional post. The recourse to direct recruitments can be carried out only on the failure of the authority to recruit person by promotion. The Rules contemplate an affirmative disposition and the appointing authority can fall back to direct recruitment in the end of failing to promote persons by adhering to Rules of Recruitment. In matters relating to employment or appointment to any office under the State, the State must conform to the equality clause guaranteed in Article 14 and 16 of the Constitution. So long the Rules remain in force a direct recruit cannot be allotted a promotional vacancy without fulfilling the conditions precedent indicate that the respondent on making a genuine effort to fill up the post by following the Recruitment Rules railed to recruit persons by promotion. The word "Failure" is to be preceded by an attempt to fill up the post by promotion and only on failure of the authority to recruit persons by way of promotion, it may resort to direct recruitment. The word "Failing" is a noun which conveys the act or state and not otherwise of one who or that fails; failure-Preposition-in the absence or default. The word conveys the idea of failure or be unsuccessful which must precede by some affirmative action. The office memorandum that speaks of regularisation is intended to condone any, if procedural irregularity or deviation from such irregularity, designed to cure only the adequacy or imperfection relating to the mechanism of appointment. The process of regularisation as provided in the office memorandum in question, is not meant as a contrivance to contravene the Recruitment Rules. As per the Recruitment Rules the normal procedure of filling up of the vacancy of the Special Officer is, was by promotion and not by direct recruitment. The office memorandum dated 31st May, 1986 read with office memorandum dated 4th August, 1986 only covers the case of filling of vacancy in the direct recruitment quota and the candidate is/ was to fulfil all requirements under the relevant recruitment rules for appointment to such posts. As mentioned earlier, in fact there was no vacancy to the post of Special Officer as on 7.1.1987 or till vacancy surfaced on the promotion of Md. Siraj Ahmed Shah on 3rd August, 1990. In this context it would be appropriate to refer to the decision of the Supreme Court in R.N. Nanjundappa Vs. T. Thimmiah and Another, wherein the Supreme Court in dealing with the term "regularisation" made the following observation:-

"Counsel on behalf of the" respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the state contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proportion would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."

The above decision of the Supreme Court is referred and relied in B.N. Nagarajan and Others Vs. State of Karnataka and Others, The purported order of regularisation of the respondent No. 3 No. 3 runs counter to the Rules of Recruitment made under Article 309 of the Constitution of India. What is not permissible in law cannot be remedied by an executive fiat. In these circumstance the impugned order of regularisation of service of the respondent No.3 vide order dated 7.1.1987 alongwith the order dated 21st February, 1991 cannot be upheld nor the same be saved by the Cabinet decision taken on 24.7.1991 as reflected vide order dated 31st July, 1992.

Mr. A. Nilamani Singh, learned Sr. counsel appearing for the petitioner sought to support the impugned order on the ground of continuance of appointment of the respondent No.3 as a Special Officer since 1987. The learned counsel in order words sought to justify the impugned order on the maxim "Communis Error Facit Jus" (Common error sometimes passes current as law). The maxim is based on the principle that the law favours the public good and in some cases it will permit a common error to pass for right. There is no doubt that there is some logical behind the above maxim. The common error repeated many times makes law. But the above maxim has its own limitation which is to be applied with great care and caution. The maxim cannot be used as a shield for wrecking or frustrating the statutory provisions delineated in the Rules of Recruitment.

Frustra legis auxilium quoerit qui in legem committit (He vainly invokes the aid of law who, transgresses the law.) It is a trite maxim of law that no one shall take advantage of its own wrong (Nullus Commodum Capere Potest De Innuria Sua Propria). No person shall take advantage of its own wrong to gain favourable interpretation of law. No one shall be permitted to gain profit by his/her own wrong or to found any claim in its inequity. The essence behind the legal policy is the well being of the citizen. "Law ought to be designed for no other end but the good of the people"- Lock. A primary aim of legal policy is to do justice and the court assumes that the State and its laws are not meant to do injustice. Indian Constitution, more particularly Article 14 of the Constitution aims at equality before law and equal protection of laws or what Dwarkin calls "equal concern and equal respect" "taking right seriously" -Prof. R Dwarkin.

On of the basic principles of legal policy is that law should be just and fair and decision of the Court should aid the advancement of the ends of Justice.

Mr. A. Nilamani Singh, learned Sr. counsel time and again urged that the writ petition is liable to be dismissed on the ground of laches and delay. Needless to say that a remedy under Article 226 is an equitable remedy and no equitable relief is permissible under Article 226 if the conduct of the petitioner is reprehensible and blame worthy because of laches, undue delay, acquiescence, waivers etc. Though there is no dispute on the principle of law in this regard, but can a petition be dismissed on the ground of delay alone? The order dated 7.1.1987 and for that matter the order dated 21.2.1991 was never served upon the petitioner nor the same was made known to the party. In addition, the purported order dated 7.1.1987 was/is a nullity. As pointed out earlier there was no substantive post of Special Officer in the Tribal Development Department as on 7.1.1987 as reflected in the impugned order. The petitioner sought appropriate remedy before the respondents 1 and 2 for her appointment to the post of Special Officer as per the Rules vide her representation dated 28th September, 1990 and 5th Oct. 1990. The post of Special Officer fell vacant only oh 3rd August, 1990 as reflected in the order dated 30th August, and 30th November, 1990 (Annexures-7 and 8 respectively). The right of the petitioner for her promotion to the post of Special Officer only accrued on the promotion of Md. Siraj Ahmed Shah-with effect from 3rd August, 1990 vide order dated 30th August/30th November, 1990 and petitioner accordingly moved the authority seeking remedy departmentally and only after exhausting the available remedy petitioner moved this court in January, 1992. In these circumstance .. the application under Article 226 of the Constitution of India cannot be rejected on the ground of laches or undue delay, acquiescence or waiver. The conduct of the petitioner cannot be held to be blameworthy for refusing the relief under Article 226 of the Constitution of India. I have given my anxious consideration of the matter and after considering all aspects of the matter I am of the opinion that the petition does not suffer from any laches and accordingly the contention of the respondent that the petition is liable to be dismissed on the ground of delay is rejected.

Mr. Kh. Nimaichand. learned Addl. Govt. Advocate submitted that in the instant case the respondent authority acted bona fide and exercised discretion lawfully. Mr Nimaichand referring to the order dated 7.1.1987 as well as the corrigendum dated 21.2.1991 submitted that the appointment on promotion was within the discretionary jurisdiction of the executive authority and in the absence of any proof of arbitrariness question of interfering with this discretion does not arise. The learned Addl. Govt. Advocate further brought my attention to the order No. 10/28/91-TD dated 31st July, 1992 which reads as follows:

"No.10/28\\91-TD: In pursuance of the decision taken by the Cabinet on 24.7.1992 at 9.30A.M., the Governor of Manipur is pleased to the creation of a supernumerary post of Special Officer in the Tribal Development Department for the period from 24.5.1986 to 30.11.1990.

Further, the Governor of Manipur is pleased to order the expost facto appointment of Shri K. Panmeni as Special Officer in the Tribal Development Department for the period from 24.5.1986 to 30.11.1990."

My attention was already drawn to the aforesaid notification by Mr. A. Nilamani, learned counsel for respondent No. 3. The discretionary power as submitted by the learned Govt. Advocate cannot be separated on the face of recruitment Rules as mentioned earlier. The executive authority is not authorised to act contrary to the rules made under Article 309 of the Constitution. Similarly the executive authority is not authorised to exercise its discretion arbitrarily. Under the Constitutional system the discretion is to be limited by reasons of law. The governmental authority that done the said power must take care not to exceed or abuse its power. It must keep itself within the limits of the authority committed to do. It must act in good faith and above all it must act reasonably. Discretion must be exercised justly, reasonably and fairly. What is unjust, unreasonable is also violative of the great equality clause enshrined in the Article 14 of the Constitution. Arbitrary power and discretion are what the court refuse to countenance. The State or any other person vested with the discretion must exercise the discretion upon reasonable grounds. Discretion does not empower the authority to do what it feel like doing or it emanate to do so. What is not reasonable or rational is extravagant and capricious and, therefore, discriminatory thus violative of the Article 14 and 16 of the Constitution of India. The impugned order dated 31st July, 1992 passed on the basis of the Cabinet decision dated 24.7.1992 for creation of a supernumerary post of Special Officer in the Tribal Development Department for the period from 24.5.1986 to 30.11.1990 and thereby granting expost facto approval of the appointment of the respondent in the circumstances cannot be held to be lawful. No good and valid reasons are given by the respondents for the generous State benefaction of the respondent No. 3. Public power is to be used with responsibility and not with extravagance. Procedural fairness and regularity are of indispensible essence of liberty and equality as enshrined in the Constitution of India. As indicated earlier that the post of Special Officer was not in existence when the said respondent was sought to be regularised to the aforesaid post vide order dated 7.1.1987 and 21.2.1991. The order dated 31st July, 1992 is a ad post litem. No good reason was shown by the respondents as to why a supernumerary post had to be created for accommodating the respondent No. 3 who was seemingly appointed on derogation of the Recruitment Rules. In the circumstances the purported order of regularisation/appointment of the respondent No. 3 by the impugned orders cannot be sustained and accordingly the same is set aside and quashed. Respondents are accordingly directed to fill up the post of Special Officer as per law by considering all the eligible officers including the petitioner as early as possible preferably within three months from the date of receipt of this judgment.

The writ petition is allowed to the extent indicated above. There shall, however, be no order as to costs.