Shridhar
Son of Ram Dular Vs. Nagar Palika, Jaunpur & Ors [1989] INSC 352 (17 November 1989)
Singh,
K.N. (J) Singh, K.N. (J) Kasliwal, N.M.
(J)
CITATION:
1990 AIR 307 1989 SCR Supl. (2) 201 1990 SCC Supl. 157 JT 1989 (4) 327 1989
SCALE (2)1115
ACT:
U.P.
Municipalities Act, 1916: Section 71--Scope of--Whether confers power on State
Govt. to issue directions, regulating the conditions of service of Municipal
Employees.
Tax
Inspector--Appointment of--Whether to be exclusively filled by
promotion--Government's Order dated 10.4.50--Applicability of.
Practice
and Procedure: Judicial discipline--Single Judge disagreeing with another
Single Judge--Matter should be referred to a Larger Bench.
Administrative
Law--Principles of natural justice--Violation of--Effect.
HEAD NOTE:
The
Municipal Board, Jaunpur invited applications for the post of Tax Inspector.
The employees working in the Revenue Department of the Municipal Board were
eligible for consideration along with the outsiders. Respondent No. 3, the
senior most Tax Collector in Municipal Board, was called for interview but he
refused to appear on the plea that the post of Tax Inspector should be
exclusively filled by promotion and being the senior most Tax Collector he
should be promoted without considering any outsider. Ignoring his claim the
Municipal Board selected and appointed the appellant to the post of Tax
Inspector. Respondent No. 3 represented to the Commissioner challenging the
appellant's appointment. The Commissioner set aside the order of the Municipal
Board and cancelled the appellant's appointment holding that pursuant to the
directions contained in the Government's Order dated 10.4.50, Respondent No. 3
was entitled to promotion. The appellant challenged the Commissioner's order
before the High Court by filing a writ petition. Disagreeing with the decision
of another Single Judge, a Single Judge of the High Court dismissed the writ
petition, and affirmed the order of the Commissioner on the findings that the
appellant's appointment was made in violation of the Government's Order dated
10.4.50. Hence this appeal.
202
Allowing the appeal and setting aside the order of the High Court, this Court,
HELD:
1. The orders of the High Court and the Commissioner are not sustainable in
law. [208B] 1.1. It is a well-settled principle of judicial discipline that if
a Single Judge disagrees with the decision of another Single Judge, it is
proper to refer the matter to a larger Bench for an authoritative decision. But
in the instant case, the learned Single Judge of the High Court acted contrary
to the well established principles of judicial discipline in ignorning those
decisions. [205B-C]
2.
Section 71 of the U.P. Municipalities Act, 1916 before its amendment in 1964
did not confer power on the State Government to issue any direction regulating
the conditions of service of Municipal employees. [205D] Ramesher Prasad and
Ors. v. Municipal Board, Pilibhit, A.I.R. 1958 All. 363; Ram Kripal Garg v.
State of U.P., Writ Petition No. 4556 of 1965 dated 16.9.66 and Inder Bahadur
v. Municipal Board, Mirzapur and Ors., Writ petition No. 235 of 1970 dated
20.10.1972 approved.
2. I
Even after conceding supervisory power to the State Government to issue
directions laying down conditions of service of Municipal employees, there are
no directions in the Government Order dated 10-4-50 requiring a Municipal Board to fill
the post of Tax Inspector only by promotion and not by direct recruitment.
Therefore, it was open to the Municipal Board to make appointment to the post
of Tax Inspector either by direct recruitment or by promotion. [205G; 207D]
2.2 In
the instant case, the Municipal Board gave opportunity to its employees working
in the revenue class of service to appear for selection in competition with
outsiders. Respondent No. 3 however did not avail the opportunity for which he
himself is to be blamed. The Municipal Board acted within its jurisdiction in
making appointment to the post of Tax Inspector by direct recruitment. [207E]
2.3 A
Govt. Order declared ultra vires by the High Court, could not be revived by any
subsequent Govt. Order without there being any statutory power for the same.
[205E]
3. It
is an elementary principle of natural justice that no person 203 should be
condemned without hearing. The order of appointment conferred a vested right in
the appellant to hold the post of Tax Inspector, that right could not be taken
away without affording an opportunity of hearing to him. Any order passed in
violation of the principles of natural justice is rendered void. In the instant
case, there is no dispute that the Commissioner's order had been passed without
affording any opportunity of hearing to the appellant.
Therefore
the order was illegal and void. The High Court committed serious error in
upholding the Commissioner's order setting aside the appellant's appointment
without giving any notice or opportunity to him. [207G-H; 208A]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 2967 of 1986.
From
the Judgment and Order dated 28.7.1986 of the Allahabad High Court in W.P. No.
1793 of 1980.
Satish
Chandra, R.B. Mehrotra, S.K. Mehta, Atul Nanda and Aman Vachher for the
Appellant.
J.M. Khanna,
R.B. Misra and Ms. Anil Katiyar for the Respondents.
The
Judgment of the Court was delivered by SINGH, J. This appeal is directed
against the judgment and order of the High Court of Allahabad dated July 28, 1986 dismissing the appellant's petition
under Article 226 of the Constitution challenging the order of the Commissioner
Varanasi Division dated February
13, 1980 setting aside
the order of Municipal Board, Jaunpur appointing the appellant as Tax
Inspector.
The
Municipal Board, Jaunpur issued advertisement inviting applications for
appointment to the post of Tax Inspector. The advertisement stated that the
existing employees of the Revenue Department of the Municipal Board were
eligible for consideration along with outsiders. Hari Mohan Respondent No. 3
who was the senior most Tax Collector working in the Municipal Board, Jaunpur
was called for interview but he refused to appear for the interview on the plea
that the post of Tax Inspector should have been exclusively filled by promotion
and as he was the seniormost Tax Collector he should be promoted without
considering any outsider. The Municipal Board ignored, his claim and selected
the appellant, and appointed 204 him to the post of the Tax Inspector by the
order dated 11.3.78. Respondent No. 3 thereafter filed a claim petition before
the Services Tribunal constituted under the U.P.
Public
Services Tribunals Act, 1976 but subsequently he withdrew the same on 23.12.79.
Thereafter he filed a representation to the Prescribed Authority i.e. the
Commissioner Varanasi challenging appellant's appointment to the post of Tax
Inspector. The Commissioner by his order dated 13.2.80 set aside the order of
the Municipal Board and cancelled the appellant's appointment on the ground
that the Respondent No. 3 was entitled to promotion in pursuance to the
directions contained in the Government Order dated 10.4.50. The appellant filed
a writ petition under Article 226 of the Constitution before the High Court
challenging the order of the Commission. A learned Single Judge (B.D. Agarwal,
J.) of the High Court of Allahabad dismissed the writ petition and affirmed the
order of the Commissioner on the findings that the appellant's appointment was
made in violation of the Government Order dated 10.4.50. Hence this appeal.
After
heating learned counsel for the parties at length we are of the opinion that
the High Court committed manifest error in upholding the order of the
Commissioner. The basic question which arises for consideration is whether the
post of Tax Inspector, under the provision of the U.P. Municipalities Act, 1916
(hereinafter referred to as the 'Act') or any rules framed there under or under
the Government Order dated 10.4.1950 the post of Tax Inspector was required to
be filled by promotion only and not by direct recruitment. The Prescribed
Authority i.e., the Commissioner as well as the High Court both proceeded on
the assumption that the Government Order dated 10.4.50 had been issued by the
State Government in exercise of its supervisory powers under s. 71 of the Act
and as such it was binding on the Municipal Board, and the directions contained
therein required the Municipal Board to fill up the post of Tax Inspector
exclusively by promotion and not by direct recruitment. In making the
appellant's appointment as a direct recruit, the Municipal Board acted in
violation of the directions contained in the aforesaid Government Order, therefore,
the appellant's appointment was rendered illegal. The High Court upheld the
order of the Prescribed Authority on these findings. Learned counsel for the
appellant urged that the directions contained in the Government Order dated
10.4.50 were ultra vires the State Government's powers under s. 71 of the Act.
He
placed reliance on Ramesher Prasad and Other v. Municipal Board, Pilibhit, AIR
1958 All. 363. The learned counsel further urged that the aforesaid decision
was approved by two other learned Judges of the High Court in 205 Ram Kripal Garg
v. State of U.P., Writ Petition No. 4556 of 1965 dated 16.9.66 and Inder Bahadur
v. Municipal Board, Mirzapur and Others, Writ Petition No. 235 of 1970 dated
20.10.72 holding that the Government Order dated 10.4.50 was ultra vires. These
decisions were placed before the learned Single Judge but he did not agree with
the view taken in the aforesaid decisions instead he took a contrary view in
holding that the Government Order dated 10.4.50 was valid and it required the
Municipal Board to fill up the post of Tax Inspector only by promotion. It is
well settled principle of judicial discipline as has been reiterated in a
number of decisions of this Court that if a. Single Judge, disagrees with the
decision of another Single Judge, it is proper to refer the matter to a larger
Bench for an authoritative decision. But in the instant case the learned Judge
acted contrary to the well established principles of judicial discipline in
ignoring those decisions.
Section
71 of the Act before its amendment in 1964 did not confer power on the State
Government to issue any direction regulating the conditions of service of
Municipal employees. The view taken by the High Court in Ramesher Prasad case
and followed in other two cases, is correct. The High Court placed reliance on
the Government Orders dated 27.4.57, 9.12.59 and 30.1.72 in holding that the
directions contained in Government Order dated 10.4.50 were binding on the
Municipal Board. We have gone through the aforesaid Government Orders and
Notifications but we find nothing therein to clothe the Government Order dated
10.4.50 with statutory character. A Government Order declared ultra vires by
High Court could not be revived by any subsequent Government Order without
there being any statutory power for the same. Moreover the aforesaid Government
Orders and Notifications do not contain any direction requiring the Municipal
Board to fill up the post of Tax Inspector exclusively by promotion. The High
Court committed error in upholding the Commissioner's order.
We
have closely scrutinised the Government Order dated 10.4.50 (Annexure 1 to the
petition) with the assistance of the counsel for the parties. But even after
conceding supervisory power to the State Government to issue directions laying
down conditions of service of Municipal employees, we do not find any
directions therein requiring a Municipal Board to fill the post of Tax
Inspector only by promotion and not by direct recruitment. Learned counsel for
the respondent placed reliance on paragraphs 5 and 6 of the Government Order in
support of his contention that the post of Tax Inspector was required to be
filled by promotion only. Paragraphs 5 and 6 of the Government Order read as
under:
206
"5. In the case of the posts mentioned in the annexure promotions should,
as a rule, be made from the lower to the higher posts or grades, as the case
may be, in the same class of Service Subject to the general orders contained in
the above paragraphs. The prevailing practice' of transferring at random
officials in one class of service to another should be stopped.
6.
When direct recruitment to any post specified in the annexure had to be made it
will be governed by the educational qualifications shown therein. Recruitments
to posts from outside should, however, as far as possible be made by inviting
applications through advertisement in the press and making a selection there from
preferably be means of a competitive test. Local Bodies may also be advised to
form a Committee consisting of the Chairman or the President, the Executive
Officer or the Secretary, as the case may be, and the principal administrative
officer of the department concerned, to make a selection from among the
applicants for a vacant post by interviewing the after a competitive test. The
actual appointment will, however, be made by the competent authority." In
order to ascertain the correct scope of the aforesaid paragraphs it is
necessary to refer to the entire content of the Order. It appears that the U.P.
Pay Committee made certain recommendations prescribing minimum qualifications
in respect of employees of Local Bodies. The State Government accepted the
recommendations of the Pay Committee by its Resolution dated March 29, 1949 and in pursuance thereof it issued
the Government Order dated 10.4.50 prescribing minimum qualifications for the
employees of Local Bodies mentioned in the Schedule to the Order which included
the post of Tax Inspector. Paragraph 2 of the Order directed that future
vacancies on the promotion post will not ordinarily be given from a lower to
higher post unless the officials holding the lower post, possess the requisite
educational qualifications prescribed for the higher post.
Paragraph
3 directed that the posts of Head Clerks or Office Superintendent should be
filled by promotion only from among the educationally qualified Head Clerks. It
further directed that under no circumstances the posts of Head Clerks or Office
Suptdt. be filled by direct recruitment from outside.
Paragraph
4 directed the Municipal Boards to discontinue the posts of Sectional Head
Clerks and to create posts of Office Head Clerks. Paragraphs 7 and 8 of the
Order do not contain any directions 207 with regard to the question of
promotion. Paragraph 5 as quoted earlier directed that promotion as a rule
should be made from the lower to the higher post or grade in the same class of
service subject to the directions contained in other paragraphs of the Order
which means subject to the employee possessing the minimum qualifications prescribed
for the higher post and the higher post should not be filled by transferring
employees belonging to other class of service. Paragraph 6 directed that in
case of direct recruitment to any post as specified in the annexure of the
Order it should be governed by the educational qualifications prescribed in the
Order and recruitment should be made in accordance with the procedure
prescribed therein by constituting a committee and inviting applications.
Paragraphs 5 and 6 as quoted above do not contain any directions requiring
Municipal Board to fill the post of Tax Inspector exclusively by promotion.
Though paragraph 3 as already noted directed that under no circumstances the
post of Head Clerk or Office Suptdt. should be filled up by the direct recruitment
from outside, no such direction for the post of Tax Inspector was issued,
therefore it was open to the Municipal Board to make appointment to the post of
Tax Inspector either by direct recruitment or by promotion.
In the
instant case, the Municipal Board, Jaunpur gave opportunity to its employees
working in the revenue class of service to appear for selection to the post of
Tax Inspector in competition with outsiders. Respondent No. 3 however, did not
avail the opportunity for which he himself is to be blamed. The Municipal
Board, in our opinion, acted within its jurisdiction in making appointment to
the pOSt Of Tax Inspector by direct recruitment. The Commissioner, as well as
the High Court committed error in taking a contrary view.
Subsequently,
the Act was amended and the statutory rules i.e., the U.P. Palika Centralised
Service Rules have been framed regulating the conditions of service of
Municipal employees and appointment to the post of Tax Inspector is regulated
by Statutory Rules.
The
High Court committed serious error in upholding the order of the Government
dated 13.2.80 in setting aside the appellant's appointment without giving any
notice or opportunity to him. It is an elementary principle of natural justice
that no person should be condemned without hearing.
The
order of appointment conferred a vested right in the appellant to hold the post
of Tax Inspector, that right could not be taken away without affording
opportunity of hearing to him. Any order passed in violation of principles of natural
justice is rendered void. There is no dispute that the Commissioner's Order had
208 been passed without affording any opportunity of hearing to the appellant
therefore the order was illegal and void. The High Court committed serious
error in upholding the Commissioner's Order setting aside the appellant's
appointment. In this view, Orders of the High Court and the Commissioner are
not sustainable in law.
We
accordingly, allow the appeal and set aside the Order of the High Court as well
as the Commissioner.
There
will be no order as to costs.
T.N.A.
Appeal allowed.
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