TMI Blog2007 (2) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the assumption that the State had not framed any recruitment rules in terms of the proviso appended to Article 309 of the Constitution of India but the same by itself would not clothe the Commissioner of Revenue to make recruitments in violation of the provisions contained in Articles 14 and 16 of the Constitution of India. The Commissioner furthermore was not the appointing authority. He was only a cadre controlling authority. He was merely put a Chairman of the DPC for non-ministerial post of the Revenue Department. The term DPC would ordinarily mean the Departmental Promotion Committee. The respondents had not been validly appointed and in that view of the matter, the question of their case being considered for promotion and/ or recruitment by the DPC did not and could not arise. Even assuming that DPC would mean Selection Committee, there is noting on record to show who were its members and how and at whose instance it was constituted. The Commissioner, as noticed hereinbefore, was the Chairman of the DPC. How the matter was referred to the DPC has not been disclosed. Even the affidavit affirmed by Shri Tayeng before the High Court in this behalf is silent. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess-Servers and Zilladars which was not within the knowledge of the State. The said appointments were made on temporary basis. Appointments were made on 11.09.1997, 22.11.1997 and 5.12.1997. A sample copy of the offer of appointment reads as under: No/ 1/14/97 - Com (Rev) : On the recommendation of D.P.C. and under the directives issued by the Hon'ble Gauhati High Court, the following persons are hereby appointed as Mandols on temporary basis in the scale of pay of Rs. 950-20-1150-EB-25-1400/- per month with usual allowances against thereto existing clear vacancies of Mandals under Revenue Department from the date of their joining on duties. 2. Further, they are posted at the places indicate against their names: * * * 3. The expenditure is debitable under Appropriate Heads of Accounts of the Departments/ Offices concerned. 5. No record in regard to the said recruitments was maintained. An inquiry was, therefore, made to find out the authority which had issued the said offers of appointments. Shri Tayeng by a UO Note dated 12.01.1998 denied to have made such an appointment stating: CONFIDENTIAL U.O. No. 2/15/93-Com (R) Pt. Imphal, the 12th Jan., 1998 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointed on ad hoc basis for a period of six months. Their appointments were also cancelled on similar grounds. 7. The respondents herein filed writ petitions before the High Court on 4.06.1998 questioning the said order of cancellation of their appointments. The said Shri Tayeng retired on 28.02.1998. Despite the fact that he, in his UO Note dated 12.02.1998 addressed to the Minister of Revenue, denied to have made any appointment, when approached by the writ petitioners -respondents, he affirmed in their support an affidavit in the High Court stating: 3. That, while I was functioning as Revenue Commissioner, Manipur, matters relating to appointment on the recommendation of the D.P.C., transfer etc. were put-up to me in files and I used to pass order on the basis of facts presented to me in file. I also issued appointment order under my signature. After my retirement from service I have no access to such files. As stated above, I was transferred and posted to the Manipur Electronics Development Corporation during 1997. 4. That after my retirement, some of the writ petitioners civil Rule No. 568 of 1998, came to me and show copy of the writ petition and the counter affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said period. The writ appeals preferred there against by the appellants herein were dismissed. 9. Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the appellants, would submit that the High Court went wrong in passing the impugned judgment insofar as it failed to take into consideration that in a case of this nature it was not necessary to comply with the principles of natural justice. Strong reliance in this behalf has been placed on Kendriya Vidyalaya Sangathan and Ors. v. Ajay Kumar Das and Ors. (2002)IILLJ1057SC . It was argued that the question, as to whether appointments were made without the knowledge of the Department or for that matter whether any record was available therefore was of not much significance as in effect and substance they lead to the same inference and in that view of the matter, the decision of this Court in Mohinder Singh Gill (supra) was not attracted. 10. Mr. S.B. Sanyal, learned Counsel appearing on behalf of the respondents, on the other hand, would submit that the question as to whether the appointments of the respondents were nullities or not having not been raised before the High Court, this Court should not permit the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he constitutional and legal framework, would not be binding on the State. In any event, having regard to the fact that the said authority himself had denied to have issued a letter, there was no reason for the State not to act pursuant thereto or in furtherance thereof. The action of the State did not, thus, lack bona fide. Moreover, it was for the respondents who had filed the writ petitions to prove existence of legal right in their favour. They had inter alia prayed for issuance of a writ of or in the nature of mandamus. It was, thus, for them to establish existence of a legal right, in their favour and a corresponding legal duty in the respondents to continue to be employed. With a view to establish their legal rights to enable the High Court to issue a writ of mandamus, the respondents were obligated to establish that the appointments had been made upon following the constitutional mandate adumbrated in Articles 14 and 16 of the Constitution of India. They have not been able to show that any advertisement had been issued inviting applications from eligible candidates to fill up the said posts. It has also not been shown that the vacancies had been notified to the employment ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in the districts and the other rights, contractual or statutory, which the appointees may have. It is for this reason that we base our decision on the ground that independent of any statutory right, available to the appointees, and assuming for the purpose of this case that the rights flow only from the contract of appointment, the impugned circular, issued in exercise of the executive power of the State, must satisfy Article 14 of the Constitution and if it is shown to be arbitrary, it must be struck down. However, we have referred to certain provisions relating to initial appointment, termination or renewal of tenure to indicate that the action is controlled at least by settled guidelines, followed by the State of U.P., for a long time. This too is relevant for deciding the question of arbitrariness alleged in the present case. 35. It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Government Counsel with whom the said decision was concerned, are made by dissimilar procedures. The latter are not appointed as a part of the spoils system. Having been selected on merit and for no other consideration, they are entitled to continue in their office for the period of the contract of their engagement and they can be removed only for valid reasons. The people are interested in their continuance for the period of their contracts and in their non-substitution by those who may come in through the spoils system. It is in these circumstances that this Court held that the wholesale termination of their services was arbitrary and violative of Article 14 of the Constitution. The ratio of the said decision can hardly be applied to the appointments of the law officers in the High Court whose appointment itself was arbitrary and was made in disregard of Article 14 of the Constitution as pointed out above.... [Emphasis added] 18. In Parshotam Lal Dhingra (supra), this Court held that whoever holds civil posts would be entitled to protection of their services in terms of Clause (2) of Article 309 of the Constitution of India in the event any disciplinary action is taken ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those, relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a real likelihood of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their discretion, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, Rajendra Singh v. State of M.P. AIR 1996 SC 2736 that even in relation to statutory provisions requiring notice, a distinction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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