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Raj Kishore Misra and anr. Vs. Zila Parishad, Unnao and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 560 of 1969
Judge
Reported inAIR1973All224
ActsUttar Pradesh Kshettra Samiti and Zilla Parishads Adhiniyam, 1961 - Sections 39(4) and 45(1)
AppellantRaj Kishore Misra and anr.
RespondentZila Parishad, Unnao and ors.
Appellant AdvocateH.D. Srivastava, ;Umesh Chandra and ;S.P. Pathak, Advs.
Respondent AdvocateR.N. Shukla, Adv. for Nos. 2 and 3 and ;Umesh Chandra Srivastava, Adv. For Nos. 5 and 6
DispositionPetition dismissed
Excerpt:
service - term of the nominated members - sections 39 (4) and 45 (1) (b) of u.p. kshettra samiti and zilla parishads adhiniyam, 1961 - whether term of member nominated by the karya samiti automatically expires after completion of one year from the date of nomination - held, does not come to an end. - - on the other hand, learned counsel for the zila parishad contends that the words quoted above do not prescribe the term of the member nominated by the karya samiti, but only require the karya samiti to make a nomination yearly so that if as long as the karya samiti fail to exercise its powers or perform its duty to make a fresh nomination, the member already nominated continues to be a member......and they were confirmed after a year in each case. when the u. p. kshettra samitis and zila parishads adhiniyam, 1961 came into force they became the servants of the zila parishad, unnao under the provisions of section 46 of the said act. the case of the petitioners is that two posts of kar nirikshaks were created on 29-7-1965 by the 'zila parishad unnao (opposite party no. 1) in exercise of the power conferred by section 39 of the act. petitioner no. 1 who was earlier working in the education section was transferred by the mukhya adhikari of the zila parishad (opposite party no. 3) to the main office of the parishad and was given, in addition to his duties as a clerk, the duties of kar nirikshak. this was under order dated 4-7-68, copy of which is annexure '1' to the writ.....
Judgment:
ORDER

G.S. Lall, J.

1. This writ petition relates to a service matter.

2. The petitioners Raj Kishore Misra and Surendra Pratap Singh were appointed clerks in the office of the Antarim Zila Parishad, Unnao, in the years 1961 and 1963 respectively and they were confirmed after a year in each case. When the U. P. Kshettra Samitis and Zila Parishads Adhiniyam, 1961 came into force they became the servants of the Zila Parishad, Unnao under the provisions of Section 46 of the said Act. The case of the petitioners is that two posts of Kar Nirikshaks were created on 29-7-1965 by the 'Zila Parishad Unnao (Opposite Party No. 1) in exercise of the power conferred by Section 39 of the Act. Petitioner No. 1 who was earlier working in the education section was transferred by the Mukhya Adhikari of the Zila Parishad (Opposite Party No. 3) to the main office of the Parishad and was given, in addition to his duties as a clerk, the duties of Kar Nirikshak. This was under order dated 4-7-68, copy of which is Annexure '1' to the writ petition. Petitioner No. 2 was transferred under an order dated 29-8-1967 to the post of Kar Nirikshak. Both were thus working as Kar Nirikshaks and getting Rs. 75/- p.m. by way of travelling allowances in addition to their salaries as clerks.

3. The appointment order (Annexure 1) relating to petitioner No. 1 shows that his appointment as Kar Nirikshak was temporary. It is not in controversy that petitioner No. 2 was also temporarily working as Kar Nirikshak. There was a regular selection for the two posts and in terms of Section 39 of the Act relating to the method of appointment to posts carrying an initial pay from Rs. 40/-, a selection committee interviewed some outsiders and some existing employees of the Zila Parishad including the petitioners for the two posts of Kar Nirikshaks. The petitioners were not selected. On the other hand, two outsiders who have been implcaded as Opposite Parties Nos. 5 and 6 in the writ petition, were selected by the selection committee and were appointed by the Adyaksha. The petitioners have challenged in the writ petition the selection and appointment of Opposite Parties Nos. 5 and 6 on the two posts of Kar Nirikshaks. The grounds for the challenge are firstly, that the selection committee was not duly constituted according to the provisions of Section 45 of the Act and, further that outsiders could not be recruited when suitable persons were available out of the exsting servants of the Zila Parishad. The constitution of the selection committee has been challenged on two grounds. One is that the term of Sri Kripa Shanker Shukla (Opposite Party No. 4), who had been nominated by the Karya Samiti to be a member of the Chunao Samiti, had come to an end on the expiry of one year from the date of his nomination and he was, therefore, incompetent to sit in the Chunao Samiti. The other is that instead of the head of the department, for which the appointment is to be made, the Mukhya Adhikari of the Zila Parishad sat in the selection committee and acted as its secretary. According to the petitioners the two posts belonged to the Tax Department and the Kar Adhikari should have taken his seat as a member and secretary of the Chunao Samiti while selecting persons for the two posts of Kar Nirikshaks.

4. The writ petition has been contested by Opposite Party No. 1 on whose behalf a counter-affidavit has been filed and by Opposite Parties Nos. 5 and 6 who have filed a common counter-affidavit. The petitioners have filed a rejoinder affidavit to the counter-affidavit of Opposite Parties Nos. 5 and 6. In the counter-affidavit of Opposite Party No. 1, it has been stated that though Sri Kripa Shanker Opposite Party No. 4, was nominated one of the members of the Chunao Samiti in 1967 but his term did not come to an end automatically on the expiry of one year from that date and he continued to be a member in the absence of a fresh nomination, there being no term fixed by the Karya Samiti in nominating Sri Shukla. It has also been said that the Hindi version of the Act does not provide for annual nomination. Sri Shukla was further again nominated on 30-7-1969. It has next been asserted that there is no Kar Adhikari in the Zila Parishad Unnao and that the Mukhya Adhikari acts also as the Kar Adhikari as he is the head of Samanya Vibhag including the Kar and Accounts Department. He is, therefore, said to have legally been a member of the Chunao Samiti for the selection in question and rightly acted as a member and secretary.

5. In the counter of Opposite Parties Nos. 5 and 6 it is stated that the two posts of revenue inspectors were created and not two posts of Kar Nirikshaks and that there was a wrong translation of revenue, inspector as Kar Nirikshak. It has also been stated that the minimum qualification for Revenue Inspector is now Intermediate though it was High School (Exam.) before and it has also been stated that there is no separate Tax Department in the Unnao Zila Parishad. Sri Shukla, Opposite Party No. 4, is said to have been rightly entitled to sit as a member in the absence of a fresh nomination.

6. I have heard the learned counsel for both the sides.

7. A preliminary point has been raised by the learned counsel for the Zila Parishad to the effect that petitioners had a remedy in the form of a representation to the commissioner under the proviso to Sub-section (2) of Section 46 of the Act and not having availed of the same, the writ petition should not be considered. I find that both sides are mistaken in thinking that Section 46 of the Act applies to the selection and appointment to the two posts of Kar Nirifcshaks in this writ petition. Section 46 deals with the question of employment of the officers and servants of the erstwhile District Board and Antarim Zila Parishad in a district. It provides that all such officers and servants shall become officers and servants of the Zila Parishad. It further provides how these officers and servants shall be fitted in the posts created under Section 39 by the Zila Parishad on its coming into existence. These posts of Kar Nirikshaks were created some years after the Zila Parishads were constituted. They were accordingly to be filled by the procedure provided in Section 39 of the Act and Section 46 of the Act was not applicable to the Riling of these posts. The Chunao Samiti does not come in the picture in the appointments under Section 46, but admittedly the Chunao Samiti made the selection and it is not the case of either party that the selection should not have been made by the Chunao Samiti. Accordingly, the preliminary objection has no merit. At this very place it may be said that this finding also rules out one objection of the petitioners, namely, that outsiders could not have been recruited to these posts unless it was found that suitable persons were not available amongst the officers and servants of the erstwhile District Board or Antarim Zila Parishad. Such provision is contained in Section 46 only which, as already held, is not applicable to the recruitment to the two posts of Kar Nirikshaks.

8. There remains now the question whether the Chunao Samiti which made the iselecfion was properly constituted or not. Under Sub-section (4) of Section 39 of the Act the work of the Zila Parishad is to be carried on in departments. As to what will be the departments and what officers will be their heads is required to be specified by rules. The petitioners have not shown that there is a Tax Department under a Kar Adhikari as its head. In the counter-affida-vits it has been asserted that there is no scparnte Tax Department and the Kar and Accounts Departments come under the General Department of which the head is the Mukhya Adhikari. A reference to the relevant rules known as U. P. Zila Parishad Heads of Departments) Rules, 1968 how-ever brings out that there is a department known as the Kar Vibhag, but its head is the Mukhya Adhikari. Accordingly the sitting of the Mukhya Adhikari in the Chunao Samiti and acting its secretary was regular and not illegal.

9. There remains the question whether Sri Kripa Shanker Shukla could rightly sit in the Chunao Samiti when he had been nominated on 28-9-1967 and the Chunao Samiti sat to make this selection on June, 1968, while the fresh nomination of Sri Shukla took place on 30-7-1969. Clause (b) of Sub-section (1) of Section 45 of the Act specifies a second member of the Chunao Samiti as 'a member of the Karya Samiti to be nominated by the Karya Samiti yearly.' The argument of the learned counsel for the petitioners is that these words mean that the term of a member nominated by the Karya Samiti will come to an end ipso facto on the expiry of one year from the date of his nomination and if no fresh nomination has been made, such member cannot continue to be the member of the Chunao Samiti till a fresh nomination is made. On the other hand, learned counsel for the Zila Parishad contends that the words quoted above do not prescribe the term of the member nominated by the Karya Samiti, but only require the Karya Samiti to make a nomination yearly so that if as long as the Karya Samiti fail to exercise its powers or perform its duty to make a fresh nomination, the member already nominated continues to be a member. The question arises whether the. term of a member so nominated automatically comes to an end on the expiry of a. year. In my view Section 45 of the Act does not in so many words fix the term of, a member nominated by the Karya Samiti, but contemplates that the Karya Samiti will make a nomination yearly. The proper and convenient interpretation will be to hold that the direction implied in Clause (b) of Sub-section (1) of Section 45 of the Act for yearly nomination is directory, giving a power to the Karya Samiti to change the nomination year after year. It could not do it earlier. There is nothing in the Act elsewhere to pin down the term of a mem-ber of the Karya Samiti to one year. It is a recognised method of legislation that even where a term is fixed for an office, the incumbent of an office is required to continue in office till the successor is elected or nominated so that work may be carried on. Such a provision may be express but even where it is not express and the circumstances are similar, an interpretation in favour of such an implied provision will be regarded more reasonable than an interpretation which will create a hurdle in the functioning of the Chunao Samiti. In a Calcutta case cited by the learned counsel for the Zila Parishad, namely, Kailash Chandra Dutt v. Jogesh Chandra Majumdar : AIR1928Cal868 it was held that if the general meeting in which, the directors are to be elected is not held, the directors elected at the previous general meeting would continue in office. The learned counsel for the petitioners, on the other hand. has cited two cases, one of which is of the Calcutta High Court itself, namely, in re Hindusthan Co-operative Insurance Society Ltd. : AIR1961Cal443 and another of the Bombay High Court, namely, Krishnaprasad Jwaladutt Pilani v. Colaba Land and Mills Co. Ltd. : AIR1960Bom312 in which a contrary view was taken in regard to the directors of companies. It was held that if a general meeting was not called the directors due to retire by rotation at the annual general meeting would still be deemed to have vacated their office on the last day on which the election would have been held. The principle underlying these decisions is different. By their own acts in not calling a general meeting the directors could extend their terms. That would be against public policy. The position is not the same in the case of nomination by the Karya Samiti of its member to act as a member of the Chunao Samiti, particularly so when no term as in the case of the directors of the companies has been prescribed for a nominee of the Karya Samiti to act as a member of the Chunao Samiti,

10. In this connection reference may be made to Halsbury's Laws of England, Third Edition, Volume 9, last but one paragraph of Note 60 at page 35 where it is said that :--

'Where the charter of a corporationprovides that a particular officer shall bechosen annually, it is directory only, andmust not be construed as terminating theoffice at the end of the year after hiselection; he will continue in office until hisdeath or removal or another is elected and(if necessary) admitted. But the constitutionof the corporation may expressly provide for the retirement of the officers at theend of the year. So where a new charter, after abolishing certain old methods,establishes a new method of election tocorporate office 'for one whole year thennext following. ' the old power of holdingover is taken away.'

11. Accordingly, Opposite Party No. 4 was entitled to act as a member of the Chunao Samiti and there was no illegality or irregularity in his sitting as a member.

12. Learned counsel for the Zila Parishad has further argued that Section 98 Sub-section (2) also applies and when two of the three members of the Chunao Samiti were duly sitting as members, the presence of a third member not renominated by the Karya Samiti would not matter. It is not necessary to discuss this argument as it has been found that Sri Shukla was duly a member of the Chunao Samiti.

13. The writ petition is, therefore, dismissed, but there is no order as to costs.


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