Full Judgment
S.K. Kar, J.
1. Heard learned counsel appearing for the both parties. The order which has been challenged as violative of the provisions of Articles 14, 16, 31 and 311 read with CCS (CCA) Rules and CCS (Temporary Service) Rules goes as follows :
Dated Aizawl, the 1st July, 1998.
To
The Deputy Commissioner,
Aizawl District, Aizawl.
Subject : Appointment of 3 (three) Non-tribals to the post of Peon.
Ref.: 1. No. A.11020/V89-GAD dated 19.5.1998.
2. No. A. 11020/1/89-GAD dated 27.5.1998.
3. No. A. 11020/1/89-GAD dated 10.6.1998.
4. No. A.12026/12/97-DC(A)/23 dated 176.1998.
Sir,
I am directed to say that the appointment of 4 (four) Peons under your establishment in the recent past was in violation of Sections 8(1) and 4(1)(11) of the National Employment Service Manual Volume - I and II.
You are, therefore, requested to terminate the services of the following Peons immediately with intimation to this Department.
1. Shankar Katwal
2. Pramod Deka
3. A.M. Laskar
4. Dilip Kumar Yadav.
Yours faithfully,
(LALHMINGTHANGA)
Under Secretary to the Govt. of Mizoram,
General Administration Department.'
2. Petitioners were appointed by different orders passed by Deputy Commissioner, Aizawl on different dates. Petitioner Shankar Katwal was appointed as attached Peon to DC(A) against the vacancy caused by one Shri Bol Bahadur whereas Pramod Deka was appointed against the vacancy caused due to death of peon Pu Kepzola, in the Deputy Commissioner's Bungalow as cook and petitioner Dilip Kumar Yadav was appointed against the attached peon Pu Pahria due to transfer of SDO with whom Pu Pahria was attached.
3. A plain reading of the appointment letters will clearly show that these are indiscriminate orders passed without following any norms or procedure. Law is well-settled that some semblance of recruitment procedure or method at least is to be adopted before appointing a person to a public post. Nothing has been shown whether there was any 'post of cook' attached to Deputy Commissioner Bungalow and whether there was provision of appoint 'attached peon'. Equally, the order of termination was unfortunate and arbitrary in nature.
4. Be that as it may, in view of the additional counter-affidavit filed by the respondents on 1st June, 2001, the appointment of the petitioners were against the law in force at the relevant time. The main point raised in the additional-affidavit-in-opposition vide para-2 goes as follows :
'2. That the appointment of the petitioners are void ab initio inasmuch as the same were done in contravention of the mandatory provisions of the Mizoram Recruitment Rules, 1975. The aforesaid Rules categorically of Peon, Chowkidar, Dak Runner, jugsli, Animal attendant; Mani, Sweeper, Orderly of all offices and similar other posts of Class IV should be made through D.P.C. by the concerned Head of Department. There can be no dispute that the posts in which the petitioners were appointed are squarely cornered by the aforesaid Rules and that no DPC was constituted or held to appoint any of the petitioners.'
Annexure A/1 is a notification No. MAP/B/13/72/6, dated 10.2.1975 which states that in exercise of the power under Article 309 of the Constitution read with the Government of India, Ministry of Home Affairs Notification No. 14/11/71-HMT(ii) dated 21.1.1972, the Administrator of Mizoram framed the rules called the Mizoram (Posts) Recruitment Rules, 1975 and Schedule attached to the rules provides that in case of Peon, Chowkidar, Dak Runner, Jugali, Animal Attendant, Mali, Sweeper, orderly of all offices and similar other posts in Class-IV may be filled up by person in the age group of 18 to 30 years with age relaxation for Scheduled caste and tribes and essential qualification prescribed was ability to read and write and working knowledge of Mizo language and methods of recruitment was by DPC consisting of three (3) persons to be nominated by concerned Head of Department. Obviously these appointments of the petitioners in this case were done not following any of these rules.
It may be observed further that this affidavit-in-opposition presented on 1st June, 2001 has not been confronted by petitioners by filing any affidavit-in-opposition presented on 1st June, 2001 has not been confronted by petitioners by filing any affidavit-in-reply. Learned counsel appearing for the Government has referred me to citations, (1997) 2 SCC 1 and (2001) 1 SCC 143 intending to submit that illegal appointments are no appointment in the eye of the law and persons so appointed cannot enforce any right. Irrespective of the language used in passing the order of removal, it is found that initial appointment was not proper. Accordingly, such a matter cannot be agitated before the court of law to enforce such illegal appointments. It was held by enunciating the principle of law in 1997 (2) SCC 1, vide para 13, which goes as follows :
'13. ..................................................................................................... .............................................. if the initial entry itself is unauthorized and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularization or conformation is given it would be an exercise in futility. It would amount to decorating a still-born baby ...................................................................................
In (2001) 1 SCC 143 the Hon'ble Apex Court upheld the view of this court when deciding an appeal against that when there was gross irregularities and illegalities in appointments, may be purely temporary, not terminable without notice, but such appointments would not confer any right on the appointees or any such appointee could claim equitable relief from court.
6. Concluding, without further discussions, it may be held that both the appointments as well as the removal orders were casual in nature and neither has the legal sanctity to take cognigence by the court of law on the principle of law cited above.
7. Accordingly, petition is without merits and stand closed.
8. Notwithstanding the order passed as aforesaid it will be open for the concerned Government authority to reconsider the candidature of the petitioners against any available vacancy, if approached, by them, and pass appropriate orders in accordance with law.
10. No costs.
.