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2005 Supreme(Gau) 276
IN THE HIGH COURT OF GAUHATI (IMPHAL BENCH)
Maibam B.K. Singh & T. Nandakumar Singh, JJ.
Abdul Kalam – Appellants
Vs.
State of Manipur and other – Respondent
Writ Appeal Nos. 180 and 194 of 1999
Decided On: 01.04.2005
For Appellant/Petitioner/Plaintiff:B.P. Sahu, Kh. Tarunkumar & N. Jotendro, Advocates
For Respondents/Defendant:N. Promod Ch. Singh, R.S. Reisang & Jagajit Singh, Advocates
Consultation with the Public Service Commission is mandatory for framing Recruitment Rules for a post unless the post is included in the Schedule to the Manipur Public Service Commission (Exemption from Consultation) Regulations, 1972.
Headnote:
WRIT - SERVICE LAW - CONSULTATION WITH PUBLIC SERVICE COMMISSION - FRAMING OF RECRUITMENT RULES - WHETHER CONSULTATION WITH PUBLIC SERVICE COMMISSION IS MANDATORY - WHETHER COURT HAS POWER OF JUDICIAL REVIEW - WHETHER NON-CONSULTATION WITH PUBLIC SERVICE COMMISSION WOULD CAUSE SERIOUS CONSEQUENCES - MANIPUR PUBLIC SERVICE COMMISSION (EXEMPTION FROM CONSULTATION) REGULATIONS, 1972 - ARTICLES 309, 320 OF THE CONSTITUTION OF INDIA.
Fact of the Case:
The State Government of Manipur, while exercising its power under Article 309 of the Constitution of India, framed Recruitment Rules for the post of Archivist without consulting the Manipur Public Service Commission (MPSC), a Constitutional Body constituted under Article 320 of the Constitution. The Petitioner, a Record Attendant, challenged the Recruitment Rules on the ground that consultation with the MPSC was mandatory and that the State Government had failed to do so. The State Government contended that consultation with the MPSC was not mandatory and that it had the power to frame Recruitment Rules without such consultation.
Finding of the Court:
The Court held that consultation with the MPSC was mandatory in the instant case as the post of Archivist was not included in the Schedule to the Manipur Public Service Commission (Exemption from Consultation) Regulations, 1972, which specified the posts for which consultation with the MPSC was not required. The Court further held that it had the power of judicial review to pronounce upon the validity of the Recruitment Rules framed by the State Government and that non-consultation with the MPSC would cause serious consequences to the Petitioner, other government servants, and the general public.
Issues: 1. Whether consultation with the MPSC is mandatory for framing Recruitment Rules for the post of Archivist? 2. Whether the Court has the power of judicial review to pronounce upon the validity of the Recruitment Rules framed by the State Government? 3. Whether non-consultation with the MPSC would cause serious consequences?
Ratio Decidendi: 1. Consultation with the MPSC is mandatory for framing Recruitment Rules for the post of Archivist as the post is not included in the Schedule to the Manipur Public Service Commission (Exemption from Consultation) Regulations, 1972, which specifies the posts for which consultation with the MPSC is not required. 2. The Court has the power of judicial review to pronounce upon the validity of the Recruitment Rules framed by the State Government. 3. Non-consultation with the MPSC would cause serious consequences to the Petitioner, other government servants, and the general public.
Final Decision: The Court allowed the writ petition and quashed the impugned Recruitment Rules for the post of Archivist dated 19.3.1999. The Court also held that any regular appointment to the post of Archivist under the impugned Recruitment Rules had to go.
T. Nanda Kumar Singh, J.
1. In the factual context of these two writ appeals, this Court had been asked to decide two important questions of public importance, viz.
1. Whether or not the State Government (Governor of Manipur), while making the Recruitment Rules for a Gazetted post in the service of the Government of Manipur by exercising the power under Article 309 of the Constitution of India, is not at all required to consult the Constitutional Body, i.e. Manipur Public Service Commission, constituted under Article 320 of the Constitution of India even if consultation with the Public Service Commission is not required under the Manipur Public Service Commission (Exemption from Consultation) Regulations 1972 framed by the Governor of Manipur in exercise of the powers conferred by proviso to Clause (3) of the Article 320 of the Constitution of India?
2. Whether or not this Court, while exercising its writ jurisdiction under Article 226 of the Constitution of India, has no power of judicial review to pronounce upon the validity of the Rules so framed and action taken by the State Government in exercise of the power under Article 309 of the Constitution of India?
2. As stated above, these two writ appeals involve common questions of law and fact and, accordingly, being disposed of by a common judgment and order. For convenience of this Court, for the purpose of factual matrix, writ appeal No. 180 of 1999 had been discussed and referred to for passing the common judgment & order. A brief resume of fact leading to the filing of writ appeal No. 180 of 1999 is required to be discussed:
3. The Appellant, Md. Abdul Kalam (Appellant in both the writ appeal Nos. 180 of 1999 and 194 of 1999) is a Post Graduate Degree holder in History and was initially appointed as Record Attendant under the Directorate of Social Welfare, Art & Culture (Art & Culture Wing) vide order of the Director, Social Welfare, Arts & Culture, Manipur being No. 3/3/86-SE, Imphal, 30.9.1986. At the relevant time, Manipur State Archive was under the common Directorate of Social Welfare, Arts & Culture, Manipur. Under the Social Welfare, Arts & Culture, Manipur (Archivist of the Manipur State Archive), Recruitment Rules, 1983 framed by the State Government under Article 309 of the Constitution of India, method of recruitment to the post of Archivist was by direct recruitment, failing which by deputation. As such, according to the then Recruitment Rules, 1983 there was no avenue for filling up the post of Archivist by promotion from the lower post in the Directorate of Arts & Culture, Govt. of Manipur. The Director of Arts & Culture, Govt. of Manipur felt that the said Recruitment Rules for Archivist, 1983 was required to be modified in conformity with the existing Recruitment Rules for the post of Archivist of the National Archives of India. Accordingly, the Director wrote a letter being No. 6/2/82-SE (Pt), Imphal 18.1.1995 to the Under Secretary (Art & Culture), Govt. of Manipur that the then Recruitment Rules for Archivist, 1983 was required to be modified in conformity with the existing Recruitment Rules for the post of Archivist of National Archives of India and other States as well, to fit with the expansion and development of Manipur State Archives. The said letter of the Director of Art & Culture, dated 18.1.1995 was also accompanied with the Recruitment Rules for the post of Archivist for the other States i.e. Karnataka etc. and job chart of the Archivist. In reply to the said letter of the Director of Art & Culture, Manipur dated 18.1.1995, the Under Secretary (Art & Culture), Govt. of Manipur under his letter dated 23.5.1995 requested the Director, Art & Culture, Manipur to furnish proposal in the prescribed Manipur Public Service Commission Form No. 8 and 10 for further consideration at an early date. In compliance with the direction of the Govt. of Manipur under the said letter of the Under Secretary, (Art & Culture), Govt. of Manipur, the Director, Arts
