Holding

The appointments were null and void as the Commissioner lacked authority and the State was not bound to observe natural‑justice requirements, leading to the setting aside of the High Court judgment.

Summary

The State of Manipur appointed several individuals as Mandols, Process‑Servers and Zilladars in its Revenue Department without any recruitment rules and without the knowledge of the State Government. The appointments were made on a temporary basis, no records were kept, and the Revenue Commissioner later denied making them, leading to the cancellation of the offers. The respondents filed writ petitions challenging the cancellation, arguing that the principles of natural justice were not observed. The Supreme Court held that the State must adhere to the constitutional scheme of Articles 14, 16 and 309, and that the Commissioner lacked authority to make such appointments; the appointment letters were deemed forged and therefore void. Consequently, the High Court’s order was set aside and the appeal was allowed, with no requirement to comply with natural‑justice procedures in this circumstance.

Issues considered

The validity of appointments made without recruitment rules and without State Government approval under Articles 14, 16 and 309 of the Constitution.
Whether the Commissioner of Revenue possessed the authority to appoint field staff in the Revenue Department.
Whether the principles of natural justice were applicable to the cancellation of the alleged appointments.
Whether the High Court erred in granting relief to the respondents on the ground of non‑observance of natural justice.

Legislation cited

Constitution of Indias. 14, s. 16, s. 309

Subjects

Service lawAppointmentRecruitment rulesArticle 14Article 16Article 309Natural justiceNullityRevenue DepartmentState Government authority

Judgment

"
- STA TE OF MANIPUR AND ORS. A
--'r v.
Y. TOKEN SINGH AND ORS.

FEBRUARY 20, 2007

[S.B. SINHA AND MARKANDEY KA TJU, JJ.] B

Service Law:
- ~

Constitution of India, 1950: Articles 14, 16 and 309.
c
Revenue department-Field staff -Appointments of -Without the
knowledge of the State Government-Validity of-No recruitment rules framed
for appointment in the Revenue department particularly the field staff thereof
-The Commissioner (Revenue) allegedly appointed some persons to the
posts of Mandols, Process-Servers and Zilladars which was not within the
knowledge of the State Government-The said appointments were made on
D
a temporary basis-No record in regard to the said appointments was
~
maintained-Subsequently, the Commissioner denied having made the said
• appointments-Hence, the said appointments were cancelled-However, the
High Court allowed the writ petitions filed by the said persons on the ground
that the principles of natural justice were not complied with-Correctness E
of-Held: Although the State had not framed any recruitment rules in terms
of the proviso appended to Article 309, 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-The purported appointment
letters were fake ones-They were not issued by any authority competent
-\ therefor-Jn a case of this nature, where the facts are admitted, the principles F
~~
of natural justice were not required to be complied with-High Court judgment
set aside.

The State Government had not framed any recruitment rules for
appointment inter alia in the Revenue Department and in particular the field
G
staff thereof. The Commissioner of Revenue Department was conferred with
,.. the power of being the cadre controlling authority for non-ministerial post of
the Revenue Department. He was also the Chairman of the Departmental
promotion Committee for non-ministerial post of the Revenue Department.

.. 965 H
y
966 SUPREME COURT REPORTS [2007) 2 S.C.R.

":>
A The Commissioner allegedly appointed the respondents to the posts of
,--._
Mandols, Process-Servers and Zilladars which was not within the knowledge
of the State. The said appointments were made on a temporary basis.
'

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
B of appointments. The Commissioner (Revenue) denied having made any
appointment of field staffs of the Revenue Department. In view of the stand
taken by the Commissioner (Revenue), the offers of appointment issued in
favour of the respondents were cancelled.
>-

c CourtThe writ petitions filed by the respondents were allowed by the High
on the ground that the principles of natural justice having not been
complied with, the impugned orders could not be sustained. Hence the appeal.

Allowing the appeal, the Court

HELD: 1. The State, while offering appointments, having regard to the
D constitutional scheme adumbrated in Articles 14 and 16 of the Constitution
of India, must comply with its constitutional duty, subject to just and proper
exceptions, to give an opportunity of being considered for appointment to all I-

persons eligible thereof. (Para 141

2. The posts of field staffs of the Revenue Department of the State of
E
Manipur were, thus, required to be filled up having regard to the said
constitutional scheme. Although 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
F 16 of the Constitution oflndia: [Para 15)
t
3. The offers of appointment issued in favour of the respondents were
cancelled inter alia on the premise that the same had been done without the
knowledge ?fthe Revenue Department of the State. No records therefor were
available with the State. An inquiry had been made wherein the then
G Commissioner of Revenue stated that no such appointment had been made to
his knowledge. The State proceeded on the said basis. The offers of appointment
were cancelled not on the ground that some irregularities had been committed
""'
in the process of recruitment hut on the ground that they had been non-est in
the eye of law. The purported appointment letters were fake ones. They were
H not issued by any authority competent therefor. (Para 161 ..
STATE OF MANIPUR v. Y. TOKEN SINGH 967
4. If the offers of appointments issued in favour of the respondents A
herein were forged documents, the State could not have been compelled to
pay salaries to them from the State exchequer. Any action, which had not been
taken by an authority competent therefor and in complete violation of the
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 B
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
bonafide. [Para 17]

5. Moreover, it was for the respondents who had filed the writ petitions
to prove existence of a legal right in their favour. They had inter a/ia prayed C
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
establishing 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 D
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 exchange. [Para 18]

Kendriya Vidyalaya Sangathan v. Ajay Kumar Das, [2002] 4 SCC 503, E
Parshotam Lal Dhingra v. Union of India, AIR (1958) SC 36 and Murugayya
Udayar v. Kothampatti Muniyandavar Temple by Trustee Pappathi Ammal,
(1991] Supp. 1 SCC 331, referred to.

6. The term "DPC" would ordinarily mean the Departmental Promotion F
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 nothing on record to show
who its members were and how and at whose instance it was constituted. The
Commissioner was the Chairman of the DPC. How the matter was referred G
to the DPC has not been disclosed. Even the affidavit affirmed by the then
Commissioner (Revenue) before the High Court in this behalf is silent. [Para
20]

7. The appointing authority, in the absence of any delegation of power
H
~
968 SUPREME COURT REPORTS [2007] 2 S.C.R.
~
A having been made in that behalf, was the State Government. The Government
Order did not delegate the power of appointment to the Commissioner. He, 'f
therefore, was wholly incompetent to issue the appointment letters. (Para 211

State of U.P. v. U.P. State Law Officers Association, (1994( 2 SCC 204,
Dhirender Singh v. State ofHaryana, (199712 SCC 712, MC. Mehta v. Union
B of India, [1999) 6 SCC 237, Bar Council of India v. High Court of Kera/a,
[2004) 6 S<;C 311 and R.S. Garg v. State of U.P., (2006) 6 SCC 430, referred
to.

Kumari Shrilekha Vidyarthi v. State of U.P., [199111 SCC 212, held
r -
-::
inapplicable.
c
8. The respondents, were not entitled to hold the posts. In a case of this
nature, where the facts are admitted, the principles of natural justice were
·'II
not required to be complied with, particularly when the same would result in
futility. [Para 221
D Mohinder Singh Gill v. Chief Election Commissioner, AIR (1978) SC
851; held inapplicable.
i
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 849 of2007.

From the final Judgment and Order dated 29.7.2005 of the High Court
E of Gauhati (Imphal Bench) in WA Nos. 61,78 and 79/1999.

WITH

C.A. No. 850 of2007.

F Jaideep Gupta, Khwairakpam Nobin Singh for the Appellants. )·
I..

S.B. Sanyal, Aribam Guneshwar Sharma, S.K. Bhattacharya, L.K. Paonam
and H.S. Paonam for the Respondents.

The Judgment of the Court was delivered
G
S.B. SINHA, J .. 1. Leave granted.

2. The State of Manipur is in appeal before us questioning the judgment
and order dated 29.07.2005 passed by a Division Bench of the Guwahati High
Court in WA Nos. 61, 78, 79, 95 and 100of1999 upholding a judgment and
H
STATEOFMANIPUR v. Y. TOKEN SINGH [S.B. SINHA,J.] 969
order of a learned Single Judge of the said Court dated 19.02.1999 in C.R. Nos. A
324, 1012, 568, 1022 and 1023of1998.

3. One Shri A.J. Taye:ig was the Revenue Commissioner of Government
of Manipur. The State of Manipur had not framed any recruitment rules for
appointment inter alia in the Revenue Department and in particular the field
staff thereof. The Commissioner of Revenue Department was conferred with B
a power of being the cadre controlling authority for non-ministerial post of
the Revenue Department. He was also to be the Chairman of the Departmental
Promotion .Committee for non-ministerial post of the Revenue Department.

4. The Commissioner allegedly made certain appointments in the posts
ofMandols, Process-Servers and Zilladars which was not within the knowledge C

- 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 ofD.P.C. and under D
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.
E
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."
F
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:

"CONFLDENTIAL G
U.O. No. 2/15/93-Com (R) Pt.

Imphal, the 12th Jan., 1998

Sub: Submission of report. H
':

970 SUPREME COURT REPORTS [2007] 2 S.C.R.

A With reference to the U.0. letter No. 2/15/93-Com(R) Pt. Dated 6th
January, 1998 regarding the alleged appointment of ad-hoc/ regular
appointment to the post of Lam bus/ Mandols etc. of the Hon 'ble
Minister (Revenue), I am to say that I am not all aware of such
appointments made by me except for 3 Lambus who were kept in panel
for appointment, and accordingly the S.O. (Revenue) Shri Robert
B Shaiza was instructed to take care. I, therefore, deny making, of such
appointments.

On the other hand, Md. A.R. Khan, Secretary (Revenue) has made "r -
many appointments of Mandols/ Process Servers/ Zilladars in the
recent months against which I have been complaining that the Secretary
c (Revenue) has no power or authority to make any appointments of
field staff as per Rules provided under M.L.R. Act, 1960. In this
regard, I have apprised the matter to the Hon 'ble Minister (Revenue)
already and also informed the Chief Secretary, Manipur explaining that
the Secretary (Revenue) cannot make such appointments of field
D staffs, even if he wanted to do so, all the relevant files should have
been routed through the undersigned so that the same may be brought
j.
·to the notice of the Hon'ble Minister (Revenue). His action has
created lots of misunderstanding and confusion. He has been making
false and wrong allegations against the Commissioner (Revenue) and
putting him false position. It is for this reason, I have been writing to
E · all the Deputy Commissioners in the Districts even by sending WIT
messages clarifying the actual position of making any appointment of
Revenue field staff.

I still deny that I have made any appointment of field staffs of
Revenue Department during the recent months.
F
Submitted for information and consideration.

Sci/- 12/1198

(Annayok J. Tayeng)
G
Commissioner (Revenue)

Govt. of Manipur

Minister (Revenue) "
H
~

STATEOFMANIPUR v. Y. TOKEN SINGH [S.B. SINHA,].] 971
6. In view of the aforementioned stand taken by the said Shri Tayeng, A
~- the offers of appointment issued in favour of the Respondents were cancelled
by an order dated 17.02. I998. A corrigendum thereto was, however, issued on
21.02.1998 stating:

"No. 2/15/93-Com(Rev) Temp-I: Please read as "August/97" in place
of"October/97" occurring in the 4th line of this Government order No. B
2/I5/93-Com(Rev) Temp-I dated I7-2-1998."

7. In Civil Appeal arising out of SLP (C) No. 19375-19376 of 2005, the
- """ respondents were appointed on ad hoc basis for a period of six months. Their
appointments were also cancelled on similar grounds.
c
8. 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:
D

-~
"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
E
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 F
--\
·~ counter affidavit of the respondent No. I, 2 and 3. I have gone
through the copy of the writ petition and the counter-affidavit and
annexures thereto. The Xerox copy of the cyclostyled appointment
order bearing No. 1/14/97 Com (Rev.) dated 11.9.97 (annexure A/l to
the writ petition) appointing 3 persons to the post of Mandol and No.
1/14/97- Com. (Rev.) dated 11.9.97 (Annexure A/2 to the writ petition) G
appointing 4 persons to the post of Mandol, are perused by me
minutely. I submit that these appointment orders (annexures All and
A/2) bear my signature (initial) and appear to have been issued under
my signature. It appears that the appointment orders were issued after
complying the formalities prescribed therefor which can be ascertained H
972 SUPREME COURT REPORTS (2007] 2 S.C.R.

· A from the relevant official file. Since I have retired from service, I have
no access to the file and do not know what might have been in the ·~
file and where is the file.

Verified that the above statements are true to the best of my
knowledge and no part of it is false."
B
9. The writ petitions filed by the respondents herein were allowed by
a learned Single Judge of the High Court opining:

(i) The principles of natural justice having not been complied with, -,, .. ,.
the impugned orders cannot be sustained.
c (ii) Whereas, in the impugned order, the appointments of the
respondents were said to have been passed without the know ledge
of the Administrative Department (Revenue Department); in the
counter affidavit, it was stated that no records were available in
respect thereof and, thus, the said plea being inconsistent with
D each other, the orders of cancellation of appointment would be
bad in law in the light of a decision of this Court in Mohinder
Singh Gill and Anr. v. Chief Election Commissioner, Delhi and
Ors., AIR ( 1978) SC 851.

However, it was observed:
E "However, it is further made clear that the State respondent are at
liberty to initiate or take up any appropriate legal action in the matter
pertaining to their alleged fake appointments in their respective posts
in accordance with law and pass necessary order after affording
reasonable opportunity of being heard to them."
F (iii) So far as the matter relating to Civil Appeal arising out ofSLP (C)
No. 19375-19376 of2005 is concerned, it was directed that as the
appointment of the respondents were made for a period of six
months, the employees were only entitled to the salary for the
said period.
G I0. The writ appeals preferred thereagainst by the appellants herein
were dismissed.

11. Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the
appellants, would submit that the High Court went wrong in passing the
H impugned judgment insofar as it failed to take into consideration that in a case
STATEOFMANIPUR v. Y. TOKEN SINGH [S.B. SINHA,J.] 973
of this nature it was not necessary to comply with the principles of natural A
justice. Strong reliance in this behalf has been placed on Kendriya Vidyalaya
Sangathan and Ors. v. Ajay Kumar Das and Ors., [2002] 4 SCC 503.

12.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 therefor was of not much significance as in effect and B
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.
. ...
13. 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 c
raised before the High Court, this Court should not permit the appellants to
raise the said contention at this stage. The learned counsel would submit that
even in a case of this nature, it was incumbent upon the appellants to comply
with the principles of natural justice. Strong reliance in this behalf has been
• placed on Parshotam Lal Dhingra v. Union of India, AIR (1958) SC 36,
Murugayya Udayar and Anr. v. Kothampatti Muniyandavar Temple by Trustee
D
~ Pappathi Ammal, [1991] Supp I SCC 331 and Kumari Shrilekha Vidyarthi
J
and Ors. v. State of U.P. and Ors., [1991] I SCC 212].

14. The State while offering appointments, having regard to the
constitutional scheme adumbrated in Articles 14 and 16 of the Constitution E
of India, must comply with its constitutional duty, subject to just and proper
exceptions, to give an opportunity of being considered for appointment to all
persons eligible therefor.

15. The posts of field staffs of the Revenue Department of the State of
-\
Manipur were, thus, required to be filled up having regard to the said F
constitutional scheme. We would proceed 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 butthe 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. G
16. The offers of appointment issued in favour of the respondents
herein were cancelled inter alia on the premise that the same had been done
without the knowledge of the Revenue Department of the State. No records
therefor were available with the State. As noticed hereinbefore, an inquiry had
been made wherein the said Shri Tayeng, the then Commissioner of Revenue H
''
r
974 SUPREME COURT REPORTS [2007] 2 S.C.R.
.,
A stated that no such appointment had been made to his knowledge. The State
proceeded on the said basis. The offers of appointment were cancelled not J
on the ground that some irregularities had been committed in the process of ~

recruitment but on the ground that they had been non-est in the eye of law.
The purported appointment letters were fake ones. They were not issued by
any authority competent therefor.
B
17. If the offers of appointments issued in favour of the respondents
herein were forged documents, the State could not have been compelled to
pay salaries to them from the State exchequer. Any action, which had not ':;;. ....
been taken by an authority competent therefor and in complete violation of
c the 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.

D 18. 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
E 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
F vacancies had been notified to the employment exchange. )-

19. 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.

G 20. The term "DPC" would ordinarily mean the Departmental Promotion
Committee. The respondents had not been validly appoiqted 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 noth1g on record to show who
were its members and how and at whose instance it was constituted. The
H
STA TE OF MANIPUR v. Y. TOKEN SINGH (S.B. SINHA, J.] 975
Commissioner, as noticed herein before, was the Chairman of the DPC. How A
·+ 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.

21. The appointing authority, in absence of any delegation of power
having been made in that behalf, was the State Government. The Government
Order dated 12.01.1998 did not delegate the power of appointment to the B
Commissioner. He, therefore, was wholly incompetent to issue the appointment
letters.

• - --f' 22. The respondents, therefore, in our opinion, were not entitled to hold
the posts. In a case of this nature, where the facts are admitted, the principles C
of natural justice were not required to be complied with, particularly when the
same would result in futility. It is true that where appointments had been made
by a competent authority or at least some steps have been taken in that
behalf, the principles of natural justice are required to be complied with, in
view of the decision of this Court in Murugayya Udayar (supra).
D
23. We, as noticed hereinbefore, do not know as to under what
circumstances the orders of appointments were issued.

24. The said decision is not an authority for the proposition that the
principles of natural justice are required to be complied with in all situations.
E
25. In Kumar/ Shrilekha Vidyarthi (supra), this Court was dealing with
a question in regard to continuance of the Law Officers. The question which
arose herein was not raised. It was held:

"34. In our opinion, the wide sweep of Article 14 undoubtedly takes
within its fold the impugned circular issued by the State of U.P. in p
exercise of its executive power, irrespective of the precise nature of
appointment of the Government Counsel 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 G
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 H
976 SUPREME COURT REPORTS (2007] 2 S.C.R.

A 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
B 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
sine qua non to its validity and in this respect, the State cannot claim
comparison with a private individual even in the field of contract. This )- ..
distinction between the State and a private individual in the field of
c contract has to be borne in the mind."

26. We in the facts and circumstances of this case do not see any
arbitrariness on the part of the State in its action directing cancellation of
appointments.
D 27. We may, on the other hand, notice that Kumari Shrilekha Vidyarthi
(supra) has been distinguished by this Court in State of U.P. and Ors. v. U.P.
State Law Officers Association and Ors., [1994) 2 SCC 204 stating:

"... The reliance placed by the respondents in this behalf on Shrilekha,
Vidyarthi v. State of U.P., is misplaced for the obvious reason that the
E decision relates to the appointment of the Distr.ict Government Counsel
and the Additional/Assistant District Government Counsel who are
the law officers appointed by the State Government to conduct civil,
criminal and revenue cases in any court other than the High Court.
, Their appointments are made through open competition from among
F those who are eligible for appointment and strictly on the basis of
merit as evidenced by the particulars of their practice, opinions of the
District Magistrate and the District Judge and also after taking into
consideration their character and conduct. Their appointment is in the
first instance for one year. It is only after their satisfactory performance
during that period that a deed of engagement is given to them, and
G even then the engagement is to be for a term not exceeding three
years. The renewal of their further term again depends upon the
quality of work and conduct, capacity as a lawyer, professional conduct,
public reputation in general, and character and integrity as certified by
the District Magistrate and the District Judge. For the said purpose,
H the District Magistrate and the District Judge are required to maintain
STATEOFMANJPUR v. Y. TOKEN SINGH [S.B. SINHA, J.] 977
a character roll and a record of the work done by the officer and the A
capacity displayed by him in discharge of the work. His work is also
subject to strict supervision. The shortcomings in the work are required
to be brought to the notice of the Legal Remembrancer. It will thus
be seen that the appointment of the two sets of officers, viz., the
Government Counsel in the High Court with whom we are concerned, B
and the District 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 C
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 D
whose appointment itself was arbitrary and was made in disregard of
Article 14 of the Constitution as pointed out above"

[Emphasis addedJ

28. In Parshotam Lal Dhingra (supra), this Court held that whoever E
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 against them stating:

"... The underlying idea obviously is that a provision like this will
ensure to them a certain amount of security of tenure. Clause (2) F
protects government servants against being dismissed or removed or
reduced in rank without being given a reasonable opportunity of
showing cause against the action proposed to be taken in regard to
them. It will be noted that in clause (I) the words dismissed and
removed have been used while in clause (2) the words dismissed G
removed and reduced in rank have been used. The two protections
are (I) against being dismissed or removed by an authority subordinate
to that by which the appointment had been made, and (2) against
being dismissed, removed or reduced in rank without being heard.
What, then, is the meaning of those expressions dismissed removed
H
978 SUPREME COURT REPORTS [2007] 2 S.C.R.

A or reduced in rank? It has been said in Jayanti Prasad v. State of
Uttar Pradesh, that these are technical words used in cases in which
a persons services are terminated by way of punishment. Those
expressions, it is urged, have been taken from the service rules, where
they were used to denote the three major punishments and it is
submitted that those expressions should be read and understood in
B ·the same sense and treated as words of Art ... "

29. In Dhirender Singh and Ors. v. State of Haryana and Ors., [1997]
2 sec, 712, termination of an order of promotion in favour of the appellant was
not interfered with by this Court as the same had not been approved by the
C DIG, being the competent authority.

30. In MC. Mehta v. Union of India and Ors., [1999] 6 SCC 237, this
Court developed the "useless formality" theory stating:
'
"More recently Lord Bingham has deprecated the useless formality
' theory in R. v. Chief Constable of the Thames Valley Police Forces,
D ex p Cotton by giving six reasons. (See also his article Should Public
Law Remedies be Discretionary? 1991 PL, p. 64.) A detailed and
emphatic criticism of the useless formality theory has been made much
earlier in Natural Justice, Substance or Shadow by Prof. D.H. Clark of
Canada (see J975 PL, pp. 27-63) contending that Malloch and Glynn
E were wrongly decided. Foulkes (Adrninistrative Law, 8th Edn., 1996, p.,
323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that
the court cannot prejudge what is to be decided by the decision-
making authority. de Smith (5th Edn., 1994, paras I0.031 to 10.036)
says courts have not yet committed themselves to any one view
though discretion is always with the court. Wade (Administrative Law,
F 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
G 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
H
STATEOFMANIPUR v. Y. TOKEN SINGH [S.B. SINHA,J.] 979
injunction even though natural justice is not followed. We may also A
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., that even in relation
to statutory provisions requiring notice, a distinction is to be made
between cases where the provision is intended for individual benefit
and where a provision is intended to protect public interest. In the B
former case, it can be waived while in the case of the latter, it cannot
be waived."

31. In Kendriya Vidyalaya Sangathan (supra), it was held:
- -f·

" ..... .It is clear that if after the termination of services of the said Dr.
K.C. Rakesh, the orders of appointment are issued, such orders are C
not valid. If such appointment orders are a nullity, the question of
observance of principles of natural justice would not arise"

32. In Bar Council ofIndia v. High Court ofKera/a, [2004] 6 SCC 311,
it was stated:
D
" ... Principles of natural justice, however, cannot be stretched too far.
Their application may be subject to the provisions of a statute or
statutory rule."

33. In RS. Garg v. State of UP. and Ors., [2006] 6 SCC 430, it was stated:
E
"A discretionary power as is well known cannot be exercised in an
arbitrary manner. It is necessary to emphasize that the State did not
proceed on the basis that the amendment to the Rules was not
necessary. The action of a statutory authority, as is well known, must
be judged on the basis of the norms set up by it and on the basis
of the reasons assigned therefor. The same cannot be supplemented F
by fresh reasons in the shape of affidavit or otherwise."

34. For the reasons aforementioned, the impugned judgments cannot be
sustained. They are set aside accordingly. The appeals are allowed. No costs.

v.s.s. Appeals allowed. G