Gauhati High Court
State Of Manipur And Ors. vs State Land Use Board Casual Employees' ... on 27 November, 2006
Equivalent citations: (2007)2GLR56, 2007(1)GLT409
Author: I.A. Ansari
Bench: I.A. Ansari, U.B. Saha
JUDGMENT I.A. Ansari, J.
1. By order, dated 12.11.1993, issued by the Secretary (Revenue), Government of Manipur, the service of the members of the petitioner-association was terminated. Aggrieved by this order of termination, the petitioner-association came to this court with the help of a writ petition, which gave rise to Civil Rule No. 1071 of 1993. By judgment and order, dated 14.3.1997, the writ petition was allowed and the order, dated 12.11.1993, aforementioned was set aside and quashed on the ground that the termination of service, having been made without affording any opportunity of showing cause or hearing to the persons against whom the order was made, is illegal. Aggrieved by the order, dated 14.3.1997, the State has preferred the present appeal.
2. We have heard Mr. R.S. Reisang, learned Additional Government Advocate, for the State appellants, and Mr. A. Mohendro, learned Counsel for the petitioner-association.
3. While considering the present writ petition, what may be noted is that this writ petition has been filed by an association, which consists of persons, whose services stand terminated by the impugned order, dated 12.11.2003. An unregistered association is not a juristic person. This apart, no legal or any other right of the said association was violated. Hence, when the said association was not an aggrieved person, it could not have maintained a writ petition. Since the grievances of the members of the said association were individual grievances, the writ petition ought to have been filed by the persons aggrieved and not by the said association, whose rights, if any, were never infringed. In such circumstances, the writ petition ought not to be entertained. However, since the learned Single Judge has entertained the writ petition, we would not like to interfere with the decision of the learned Single Judge, after about 10 years of the institution of the writ petition, merely on the ground that the writ petition was instituted by an unregistered association but we would certainly deal with the merit of the writ petition and the decision rendered therein.
4. Turning to the impugned order of termination of service, we notice that the members of the petitioner-association were appointed, admittedly, beyond the sanctioned strength, for, as many as 27 persons have been appointed as against the sanctioned strength of 9 persons and, in fact when 9 persons already stood appointed against the said sanctioned strength of 9. The impugned order, dated 12.11.1993, cancels the appointment of all the 27 persons, whose appointments were beyond the sanctioned strength. In such circumstances, the impugned order terminating the service of such appointees cannot be said to be legal.
5. It may, now, be pointed out that the said 27 persons have, admittedly, been appointed without following any selection process, in Grade IV, on a consolidated pay of Rs. 816 per month in the office of the Directorate of State Land Used Board (in short, the Board). Though the Board is being run with the financial assistance received from the Central Government, the fact remains that the appointments had been made in the Directorate of the Board, which functions under the State Government. The service rendered by the persons appointed has to be, therefore, treated as service rendered to the Government of Manipur and not to the Central Government.
6. The learned Single Judge has, we notice, relied on the decision in Shrawan Kumar Jha v. State of Bihar . In Shrawan Kumar Jha (supra), the appointments were cancelled on the ground that the appointments had been made without following the relevant reservation policy of the State Government. It was in the peculiar facts and circumstances of the case that Apex Court held that termination of service of such an appointee without giving him any opportunity of showing cause was not sustainable. Hence, the interference by the Apex Court, in Shrawan Kumar Jha (supra), was in the facts of the said case and it was not laid down therein, as a general proposition of law, that every termination of appointment, even if ex facie illegal, would have to be preceded by a notice to show cause or hearing. When an appointment is, admittedly, de hors the rules or against the non-sanctioned posts, termination of such a service, as in the present case, would not require any notice to show cause or hearing, for, such appointment does not vest any legal right in the appointee to seek retention in service. In the case at hand, all the appointments are, admittedly, without following any selection process whatsoever and against non-existent and non-sanctioned posts. In such circumstances, the appointments did not vest any legal right in the appointees to seek from the court direction to the respondents to retain such appointees in service.
7. Similarly, the learned Single Judge has also relied on the decision in H.L. Trehan v. Union of India and Ors. . The decision, in H.L. Trehan (supra), also has no application to the facts of the case at hand inasmuch as the case of H.L. Trehan (supra) involved cancellation of distributorship without giving any opportunity of hearing to the person, whose distributorship was cancelled. The persons, whose distributorship was cancelled did not admit that their appointments as distributors were illegal. It was in the facts and circumstances of such a case that the Apex Court held that post-decisional hearing would not cure the defect of not affording pre-decisional hearing to the person affected. In the case at hand, however, the fact that the appointments of the members of the respondent-association were without following any due selection process and against non-existent posts have not been in dispute. In such circumstances, the decision, rendered in H.L. Trehan (supra), has not application.
8. Having realized that the termination of service of the writ petitioner may not be interfered with by this court, Mr. A. Mohendro, learned Counsel for the petitioner-association, has submitted that the writ petitioners had rendered services from the date of their appointment until the date, when the impugned order terminating their service was passed and, hence, they need to be paid their wages or salaries for the period during which they had served. This is resisted, on behalf of the State appellants, by contending that an illegal appointee has no right to claim wages or salary. The learned State counsel submits that since appointments, in question, were made without following any selection process and far beyond the sanctioned strength, such appointments did not vest in the appointees any right whatsoever to demand retention in service or claim payment of wages or salary.
9. While considering the above aspect of the case, it needs to be pointed out that while it has been the case of the State appellants that the appointments of the members of the petitioner-association were illegal, it has not been the case of the appellants that it was within the knowledge of the members of the petitioner-association that their appointments were against non-sanctioned or non-existent posts. When services have been rendered and received by the State Government without accusing the person, rendering such service, that their appointments, even to their own knowledge, were illegal, it would not be just and fair for the State not to pay the wages or salary of such an illegal appointee for the period during which service was rendered by such an appointee. The State Government, as a model employer, cannot, therefore, be allowed to withhold the wages or salary of the members of the petitioner-association, when their services have been utilized without accusing them of their having obtained the appointments by playing fraud. Withholding of salary, in a case of present nature, would make the members of the petitioner-association victims of forced labour by a model employer. Viewed, thus, we are clearly of the opinion that there is no justification for the State Government not to pay the dues of the members of the petitioner-association for the period during which they had served the Directorate, in question, particularly, when the said Directorate is a part of the State Government.
10. Considering, therefore, the matter in its entirety and in the interest of justice, while we set aside the order, dated 14.3.1997, and restore the order of termination, dated 12.11.1993, we make it clear that the appellants shall remain liable to pay the dues of the members of the petitioner-association for the period during which they remained in service, though on the strength of illegal orders of appointment. In the facts and circumstances of this case, we direct the appellants to clear the dues of the members of the petitioner-association within a period of six months from the date of service of this order on the appellant No. 1.
11. With the above observations and directions, this writ appeal shall stand dispose of.
12. No order as to costs.