T. Nandakumar Singh, J.
1. Heard Mr. N. Ibotombi, learned counsel for the petitioner and Mr. Jalal learned GA for the respondents.
2. These two writ petitions, i.e., WP(c) No. 658/2004 and WP(c) No. 976/2004 are filed by the same petitioner against the same respondents for challenging the wireless message (W.T. Message) dated 2.8.04 for discontinuing their services in the District Rural Development Agency, Ukhrul and also cancellation order dated 23.8.04.
3. Accordingly these writ petitioners are taken up jointly for passing a common judgment and order.
4. The District Rural Development Agency ('DRDA' for short) is a government society registered under the Societies Registration Act and funded by the Central Government and State Government to the extent of 75% and 25% respectively. The DRDA, Ukhrul has to take up schemes for development of Ukhrul District, Manipur. The DRDA, Ukhrul is also following the stalling pattern mentioned in the guidelines of the Central Government and according to the said guidelines of staffing pattern of the DRDA, Officers and other employees of the DRDA are to be appointed on the recommendation of a selection committee. Paragraph No. 4.3 of the said guidelines is quoted hereunder :
'4.3 The Project Directors, Project Officers, APOs and other technical posts are to be manned by officers with proven capability and motivation and are selected in an objective manner by specific selection committees. The Project Directors should be selected by a committee headed by Chief Secretary/Development Commissioner/Addl. Chief Secretary of the State and with the Secretary (RD) being the member convenor. Similarly, for officers at the level of APOs and other technical officers, there should be a selection committee headed by Secretary, (RD). For other staff too, other than the ministerial and lower rank, selection should be made by an appropriate selection committee.'
5. The case of the petitioners are that the petitioners who are well qualified were appointed as APOs, Project Economic Officers, Account Officer, Technical Assistants, Superintendent and Assistants respectively under different orders of the Government of Manipur on adhoc basis with immediate effect till the posts are filled up on regular basis in the office of DRDA, Ukhrul vide 4 (four) orders having same numbers, i.e., 1/17/91-Dev(MC)-Pt, Imphal, the 1st June, 2004 (Annexures-A2 colly and A3 to the writ petition). When the writ petitioners pursued for releasing their salary in the first week of September 2004, respondent No. 4, the Deputy Commissioner, Ukhrul/Chairman, DRDA, Ukhrul informed the petitioners that he received a wireless message (WT message) dated 2.8.2004 from the Government directing him to discontinue their appointment and as a result of which their pay fill cannot be prepared. The petitioners filed WP (c) No. 568/2004 against the respondents in this Court for quashing the said wireless message and this court also passed an interim order dated 17.9.2004 for staying the said WT message dated 2.8.2004. Further case of the petitioners is that the Government issued a back dated order being No. 1/17-91-Dev (MC) Pt-1 dated 23.8.2004 for cancelling their appointment without giving show cause notice to them and it was passed in violation of the natural justice. Thereafter the present petitioners filed WP(c) No. 9767 04 for quashing the said cancellation order issued by the Govt. of Manipur dated 23.8.2004 (Annexure-A/6 to the writ petition No. 9767 04). In WP(c) No. 976/04 the only grounds taken by the petitioners for quashing the impugned order dated 23.8.2004 arc that (1) the impugned order dated 23.8.2004 was issued in violation of principles of natural justice and (2) it was also issued in violation of Article 166 of the Constitution of India.
6. The respondents filed their affidavit-in-opposition. In the affidavit-in-opposition the respondent's stated that the Govt. of Manipur had taken up a policy decision for imposing ban on direct recruitment, part-time, contract, adhoc, substitute, casual basis etc in the service of Govt. of Manipur, Autonomous Bodies and the Manipur University and DRDA. They said policy decision of the Govt. of Manipur for imposing direct recruitment had been implemented by issuing order being No. 1/ 15/2000-FC, Imphal, 19.3.2001 and in the said order, it is clearly mentioned that the ban on direct recruitment is also applicable to DRDA. The said order of Govt. of Manipur dated 19.3.2001 is available at page Nos. 13 to 15 of the affidavit-in-opposition, and as such, the writ. petitioners could not be appointed on direct recruitment to different posts in the office of DRDA, Ukhrul under the said appointment order dated 1.6.2004 in violation of the said policy decision of the Govt. of Manipur for imposing ban. The respondents also stated that the petitioners were appointed in violation of the guidelines of the Central Govt. followed by the DRDA, Ukhrul, Manipur regarding the staffing pattern and procedure for appointment of staff in as in such as there was no selection committee for appointment of the petitioners and they were appointed without recommendation of the selection committee. The respondents took a serious plea in their affidavit-in-opposition that the concerned Under Secretary (DR & PR), Govt. of Manipur issued appointment orders of the petitioners without processing in the relevant Govt. file through his superior officers such as Joint Secretary and Commissioner (DRDA). Further case of the respondents in their affidavit-in-opposition is that as the appointment of the writ petitioners were issued in violation of the said policy decision of the Govt. of Manipur for imposing ban on direct recruitment and also in violation of the said guidelines of the Central Government, the matter of their appointment had been discussed in the file at different levels, i.e. Secretary (DR & PR) and Chief Secretary, Govt. of Manipur.
Serious illegality committed by the said concerned Under Secretary (DR & PR), Govt. of Manipur, Shri L. Chandramani Singh in issuing the illegal appointment order of the writ petitioners, had been brought to the notice of the Chief Minister of Manipur. The hon'ble Chief Minister. Manipur after considering the opinions of the Secretary (DR & PR), Chief Secretary, Govt. of Manipur and Secretary, Law, Govt. of Manipur had taken a decision to cancel the said illegal appointments of the writ petitioners. In other words, the Chief Minister had taken a decision to cancel the said illegal appointment of the petitioners and accordingly the impugned order dated 23.8.2004 was issued for cancelling the appointment of the writ petitioners. In order to satisfy this Court about the statements made by the respondents in their affidavit-in-opposition, the relevant file was called and the same was placed before the Court by the learned GA and on perusal, it has been found that appointment of the writ petitioners were not processed in the file by the Under Secretary (DR & PR), Govt. of Manipur, Shri L. Chandramani Singh through his superior officers, i.e. Joint Secretary and Commissioner, DRDA and the hon'ble Chief Minister, Manipur after taking opinion of the Secretary (DR & PR), the Chief Secretary. Govt. of Manipur and Secretary (Law), Govt. of Manipur had taken a decision to cancel the appointment order of the petitioners in the file. In the said the, the Chief Secretary made a noting that the concerned Under Secretary, DR & PR, Shri L. Chandramani Singh, may be placed under suspension and case be referred to the State Vigilance Commission for inquiry and investigation.
7. In the above factual ground, I would discuss the said two grounds taken by the writ petitioners for challenging the impugned cancellation order dated 23.8.2004. The Apex Court (constitution Bench) in the case of Sumsher Singh v. State of Punjab and Anr. reported in AIR 1974 SC 2192 held that decision of Minister under the rule of business is a decision of the President or the Governor. Paragraphs 48, 55 and 57 of the AIR in Samsher Singh (supra) are quoted hereunder :
'48. The President as well as the Governor is the Constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer under rules of business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation, therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor.
55. In making a report under Article 356 the Governor will be justified in exercising his discretion even against the aid and advice of his Council of Ministers. The reason is that the failure of the Constitutional machinery may be because of the conduct of the Council of Ministers. This discretionary power is given to the Governor to enable him to report to the President who, however, must act on the advice of his Council of ministers in all matters. In this context Article 163(2) is explicable that the decision of the Governor in his discretion shall be final and the validity shall not be called in question. The action taken by the President on such a report is a different matter. The President acts on the advice of his Council of Ministers. In all other matters where the Governor acts in his discretion he will act in harmony with his Council of Ministers. The Constitution does not aim at providing a parallel administration within the State by allowing the Governor to go against the advice of the Council of Ministers.
57. For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vest in the executive whether those functions arc executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally. The present appeals concern the appointment of persons other than District Judges to the Judicial Service of the State which is to be made by the Governor as contemplated in Article 234 of the Constitution after consultation with the State Public service Commission and the High Court. Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance with the rules in dial behalf under the Constitution.'
8. The ratio laid down in Samsher Singh (supra) had been followed by the Apex Court in the case of Union of India v. Sripati Ranjan Biswas reported in AIR 1975 SC 1755 and held that disposal of appeal against the penalty imposed on the Govt. servant by the Minister amounts to disposal by the government as the President or the Governor is acting on the advise of the minister. Again the said ratio laid down in Samsher Singh (supra) is followed by the Apex Court in the case of Bakshi Sardari Lal (dead) through LRs and Ors. v. Union of India and Anr. reported in AIR 1987 SC 2106 (para-6 of the AIR) that 'decision of any minister or officer under rule of business made under any of these two Articles, i.e., 77(3) and 166(3) is a decision of the President or the Governor respectively. These articles had been precluded for any delegation, therefore, decision of minister or officers under the rule of business is a decision of the President or the Governor.' The Apex Court in the case of Air India Cabin Crew Assn. v. Yeshawinee Merchant and Ors. reported in AIR 2004 SC 187 held that even if an executive action of the Central Government is not formally expressed to have been taken the name of the President, Article 77 does not provide that it would, therefore, be rendered void or invalid. Para-71 of the AIR in the case of Air India Cabin Crew Assn. (supra) is quoted hereunder :
'71. In our opinion, reference to Art. 77 is wholly inappropriate. The exercise of statutory power under Section 34 by the Central Government, even though not expressed to have been taken in the name of President, does not render it invalid. Clause 2 of Art. 77 insulates an executive action of Government formally taken in the name of President from challenge on the ground that it is not an order or instrument made or executed by the President. Even if an executive action of the Central Government is not formally expressed to have been taken in the name of President, Art. 77 does not provide that it would, therefore, be rendered void or invalid. We need not, therefore, deal with the argument advanced on the basis of Art. 77 of the Constitution because the respondent/ association itself is relying on the directive dated 16.10.1989 of the Central Government which is not formally expressed in the name of President in terms of Art. 77 of the Constitution.
9. The Apex Court (constitution Bench) in the case of State of Bihar v. Rani Sonabati Kumari, reported in AIR 1961 SC 221 held that if an order is expressed to be made in the name of the Governor and is authenticated by the Addl. Secretary/Secretary to the Government as prescribed under Article 166(2), validity of the order of instrument cannot be called in question on the ground that it is not an order or instrument made or executed by the Governor. Therefore, if an order is issued in the name of the Governor as prescribed under Article 66(2), only restriction under the law imposed to any person is that the validity of the said order cannot be called in question on the ground that it is not an order made by the Governor.
10. For the reasons mentioned above, the plea of the writ petitioners that 'as the impugned order dated 23.8.2004 was issued in violation of Article 166 of the Constitution, it is illegal' cannot be accepted. The second ground of the writ petitioners that 'the impugned cancellation order dated 23.8.2004 was issued without giving any show cause notice to the writ petitioners and as such it is illegal' is also cannot be accepted under the above factual back- ground.
11. It is settled the principles of law in the service jurisprudence that for termination/cancellation of the appointment of the employee appointed under a spoilt system, there is no requirement of giving show cause notice before issuing the termination/cancellation order. In this point we can conveniently refer to the decision of Apex Court as well as this Court, i.e., (1) Union of India v. O. Chakradhar reported in AIR 2002 SC 1119, (2) Aligarh Muslim University and Ors. v. Mansoor Ali Khan reported in (2000) 7 SCC 592 (3), (3) R. Vishwanatha Pillia v. Stale of Kerala and Ors. reported in (2004) 2 SCC 105 (paragraph 5), (4) Kenjum Riba and Ors. v. State of Arunachal Pradesh and Ors. reported in (2002) 2 GLT 15, (5) State of Assam and Ors. v. Margherita Mahakuma Prathamik Brittidhari Shikshak Sanmelani, reported in (1997) 1 GLT 167,(6) State of Manipur v. All Manipur Appointment under the die-in-harness Scheme Assn. and Ors. reported in (2004) 1 GLT 279 and (7) The State of Assam and Ors. v. Smti Pratima Das and Ors. reported in (1997) 3 GLT 71.
12. For the reasons and discussions mentioned above, these writ petitions have no merit and accordingly dismissed. No order as to costs.
Interim order, it any shall stand vacated.