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Ram Chandra Vyas Vs. State of Uttar Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 1523 of 1967
Judge
Reported inAIR1969All480
ActsConstitution of India - Articles 226 and 309; Government of India Act, 1935 - Sections 211(1); Fundamental Rules - Rule 22; Uttar Pradesh Municipalities Act, 1916 - Sections 57 and 57(3)
AppellantRam Chandra Vyas
RespondentState of Uttar Pradesh and anr.
Appellant AdvocateS.N. Kackar, ;L.P. Nathani and ;R.N. Bhalla, Advs.
Respondent AdvocateN.D. Pant, Adv.
DispositionPetition dismissed
Excerpt:
.....in any other manner than that specified, or by any other person than one of those named, is impliedly prohibited'.now this principle may be applied in interpreting the provisions of section 241 of the government of india act 1935 as well as those of section 57(1} and (3) of the u. the petitioner has not based his case upon any failure of the state government to approve the terms and conditions upon which he was appointed. i am not satisfied that the petitioner had even' officiated either in a temporary or permanent post on the same time-scale as the temporary post to which he was appointed on 12-12-1957. moreover, the 'last such occasion' must be determined in relation to the date on which the petitioner was appointed substantively to a post......fundamental rule 22 applied by the state government to its own servants should be applied by the stategovernment to an executive officer of a municipal board when the matter goes up before the state government for approval under section 57(3) of the act. the petitioner has not based his case upon any failure of the state government to approve the terms and conditions upon which he was appointed. he accepted these terms and conditions and worked for a number of years on the conditions offered. it seems likely that the actual terms and conditions on which the petitioner was appointed were sent to the state government before the post to which he was appointed on 12-12-1957 was sanctioned.even if the matter was not sent up for subsequent approval, it is not possible to issue a writ of.....
Judgment:
ORDER

M.H. Beg, J.

1. The petitioner was appointed the Secretary of the Municipal Board of Allahabad (now Nagar Mahapalika, Allahabad) on 13-8-1946 on probation on a salary of Rs. 200/- per month and was confirmed on 13-8-1947 when he was drawing Rs. 210/- per month; He was appointed on 12-12-1957 as Additional Executive Officer of the Municipal Board on a salary of Rs. 500-50-750 EB-1000. The post on which he was appointed on 12-12-1957 was created on a temporary basis by the Administrator, Allahabad, who also invested the petitioner with power to perform the functions and to discharge the duties of an Executive Officer in respect of the department under his charge. This post was created after the matter had been referred to the Government and sanction obtained from it to the creation of the post. A letter dated 6-12-1957 from the Commissioner, Local Bodies, and Secretary, L. S. G. Branch, U. P. Lucknow, to the Administrator, Municipal Board, Allahabad, indicating that the creation of the temporary post was sanctioned, states that the petitioner's appointment will be a purely temporary arrangement and that, so long as the post of the Additional Executive Officer is continued, the post of the Secretary in the Municipal Board will be kept in abeyance with the petitioner's lien on it.

2. In the course of his service with, the Municipal Board, Allahabad, the petitioner was given a chance to officiate as an Executive Officer for a short period of few weeks from 12-1-1948 to 17-2-1943 drawing salary at the rate of Rs. 750/-per month which was the minimum pay then for the Executive Officer of Allahabad Municipal Board. The petitioner reverted to his post of Secretary when the Executive Officer, who had gone onleave, returned. The petitioner, however, was made a permanent Secretary of the Municipal Board drawing a salary of Rs. 260/- per month on 1-1-1950. He also officiated on three other occasions as the Executive Officer, the first of these was from 13-2-1950, the second was from 1-4-1950, and the third was from 9-6-1952, before he was appointed an Additional Executive Officer on 12-12-1957. On each of the three last mentioned occasions, when the petitioner officiated as Executive Officer for short periods, the petitioner drew the pay of the Secretary in substantive capacity together with an additional salary for officiating as Executive Officer to make up Rs. 500/-. In other words, on the three occasions following the solitary occasion which arose on 12-1-1948, when the petitioner drew salary at the rate of Rs. 750/- per month, and before the appointment of the petitioner on 12-12-1957 substantively as an Additional Executive Officer, occupying a temporary post, the petitioner drew only Rs. 500/- per 'month, altogether, while officiating as Executive Officer. On 19-9-1960, when the petitioner was drawing Rs. 650/- per month, the petitioner's post of Additional Executive Officer was given a new designation: 'Up Nagar Adhikari-II.' The petitioner has been getting his increments at the rate of Rs. 50/- per year.

3. In 1963, the petitioner became aware of the existence of Fundamental Rule 22 which was one of the rules made by the Governor of U. P. under Section 241(2)(b) of the Government of India Act, 1935, which came into force on April 1, 1942. He, therefore, made a representation on 17-3-1963 to the Mukhya Nagar Adhikari, Nagar Mahapalika (The Municipal Board had been raised to the status of a Nagar Mahapalika by then) claiming the benefit of the Rule 22 of the Fundamental Rules, as explained by the Audit Instruction No. 4. The petitioner's case was that he was entitled to a fixation of minimum salary of Rs. 750/- per month from 12-12-1957.

This matter was referred to the Government of U. P. which, after several reminders, rejected the petitioner's representation. The petitioner received a letter dated 1-2-1967 (Annexure D to the petition) informing him that the Government did not find it possible to accede to the petitioner's request. The petitioner then filed the writ petition now before me, dated 1-5-1967, praying for the quashing of the alleged order of the State Government dated 1-2-1967 (Annexure D) by means of a writ of certiorari and for a writ of mandamus to command the opposite 'party nos. 1 and 2, the State of U. P. and the Administrator, Nagar Mahapalika Allahabad, to fix the initial salary of the petitioner at Rs. 750/- with effect from 12-12-1957. The petitioner also claims increments after the initial fixation of salary at Rs. 750/- per month on 12-12-1957 and a direction to the opposite parties to pay up the arrears of all the pay due to the petitioner on the assumption that the petitioner's claim was justified.

4. The first question which arises in this case is whether the Fundamental Rule 22, relied upon by the petitioner, is applicable at all to the Executive Officer of a Municipal Board. The relevant part of Section 241(2) of the Government of India Act, 1935, under which the Fundamental Rules were made, reads:

'Except as expressly provided by this Act, the conditions of service of persons serving His Majesty in a civil capacity in India shall, subject to the provisions of this Section, be such as may be prescribed;

(a) in the case of persons serving in connection with the affairs of the Federation, by rules made by the Governor General or by some person or persons authorised by the Governor General to make Rules for the purpose:

(b) in the case of persons serving in connection with the affairs of a Province by rules made by the Governor of the Province or by some person or persona authorised by the Governor to make rules for the purpose:'

5. Section 241(2)(b) quoted above speaks of persons 'serving in connection with the affairs of a Province'. It seems tome that an Executive Officer serving the Municipal Board is not included in the class of persons dealt with in Section 241(1)(b) of the Government of India Act which has been replaced by provisions of Article 309 of the Constitution. The relevant part of Article 309 relates to rules regulating the conditions of service of persons appointed to 'services and posts in connection with the affairs of the State'. These constitutional provisions govern the conditions of services of Provincial or State Government employees. An Executive Officer of a Municipal Board was not employed by the Provincial Government before the Constitution came into force and is not employed to-day by the State Government. The manner in which he is appointed is given in Section 57(1) of the U. P. Municipalties Act, 1916 (hereinafter referred to as the Act) which provides: 'Power of Board' to appoint and employ Executive Officer and Medical Officer of health: (1) Every Board shall, unless the State Government either on its own motion or on representation made by the Board, otherwise directs, appoint an Executive Officer by a special resolution:

'Provided that in every case in which such Board has at the time of the passing of the Act a Secretary but no Executive Officer the Secretary shall be deemed to be the Executive Officer until or unless he is duly replaced.'

6. It is true that the appointments and salaries and conditions of service of Executive Officers are subject to the approval of the State Government under Section 57(3) of the Act, but that does not make the Executive Officers servants of the State Government. A Municipal Board is a statutory body functioning and exercising its powers under the statute conferring powers of Local Government upon it. On the other hand, the State Government functions under the authority vested in it by the Constitution and prior to our present Constitution, the Provincial Government derived its powers from the Government of India Act, 1935, which also contained the Constitution operating in this Country before it was replaced by the present Constitution. The mere fact that the State Government is the sanctioning or approving authority does not convert servants of a Local Authority into servants of the State Government. They remain, in my opinion, the servants of the body which appoints them and pays their salaries.

7. It may also be mentioned that the well-known maxim of interpretaion of statutes which may be applied here is: 'Expressio unius est exclusio alterius.' To quote from Crawford's Construction of Statutes, 1940 edition, Paragraph 195, at page 334 this means: 'that if a statute enumerates the things upon which it is to operate, everything else must necessarily, and by implication, be excluded from its operation and effect. .....So also,if the statute directs that certain acts shall be done in a specified manner or by certain persons, their performance in any other manner than that specified, or by any other person than one of those named, is impliedly prohibited'. Now this principle may be applied in interpreting the provisions of Section 241 of the Government of India Act 1935 as well as those of Section 57(1} and (3) of the U. P. Municipalities Act. It seems to me that Section 241(1)(b) of the Government of India Act is expressly confined in operation to Government servants who are employed by the Provincial Government (now the State Government), and Section 57 of the Act expressly and specifically deals with the manner in which the terms and conditions of service of an Executive Officer are to be laid down by the Municipal Board and by no other authority. I am, therefore, unable to see how the Fundamental Rules, which are made under the provisions of Section 241(1)(b) of the Government of India Act, can be made applicable to Executive Officers of Municipal Boards.

8. The next question which arose was whether the Fundamental Rule 22 applied by the State Government to its own servants should be applied by the StateGovernment to an Executive Officer of a Municipal Board when the matter goes up before the State Government for approval under Section 57(3) of the Act. The petitioner has not based his case upon any failure of the State Government to approve the terms and conditions upon which he was appointed. He accepted these terms and conditions and worked for a number of years on the conditions offered. It seems likely that the actual terms and conditions on which the petitioner was appointed were sent to the State Government before the post to which he was appointed on 12-12-1957 was sanctioned.

Even if the matter was not sent up for subsequent approval, it is not possible to issue a writ of mandamus as there is no mandatory duty imposed upon the Municipal Board to send the terms and conditions of appointment for approval of the State Government after an appointment. And, there is certainly no power in the Municipal Board and much less a duty cast on it to send up any terms for approval other than those on which an Executive Officer was actually appointed. Furthermore, the petitioner represented his case to the State Government which refused to accede to his prayer for the fixation of his pay on the initial scale of Rs. 750/- per month starting from 12-12-1957. The State Government would therefore, be deemed to have approved the actual terms upon which the petitioner was appointed and no other terms.

9. I do not think it is possible to compel the State Government or the Administrator, Nagar Mahapalika, Allahabad, to carry out any obligation contained in Fundamental Rule 22 retrospectively from 12-12-1957 when that Rule does not even apply to the petitioner. The terms of the Rule also do not make it applicable to the petitioner's case even if the difficulties mentioned above were not present and the petitioner was really a Government servant as he is not. This rule reads as follows:

'The initial substantive pay of a Government servant, who is appointed substantively to a post on a time-scale of pay, is regulated as follows:

(a) If he holds a lien on a permanent post other than a tenure post, or would hold a lien on such a post had this lien not been suspended -

(i) When appointment to the new post involves the assumption of duties or responsibilities of greater importance (as interpreted for the purposes of Rule 30) than those attaching to such permanent post, he will draw as initial pay the stage of the time-scale next above his substantive pay in respect of the old post;

(ii) When appointment to the new post: does not involve such assumption, he will draw as initial pay the stage of the time-scale which is equal to his substantive pay in respect of the old post, or, if there is no such stage, the stage next below that pay, plus personal pay equal to the difference and in either case will continue to draw that pay until such time as lie would have received an increment in the time-scale of the old post, or for the period after which an increment is earned in the time-scale of the new post whichever is less. But if the minimum pay of the time scale of the new post is higher than his substantive pay in respect of the old post, he will draw that minimum as initial pay:

(iii) When appointment to the new post is made on his own request under Rule I5(a) and the maximum pay in the time-scale of that post is less than his substantive pay in respect of the old post he will draw that maximum as initial pay.

(b) If the conditions prescribed in Clause (a) are not fulfilled, he will draw as initial pay the minimum of the time-scale:

Provided, both in cases covered by Clause (a) and ..... in cases, other than casesof re-employment after resignation from the public service, covered by Clause (b), that if either -

(1) has previously held substantively orofficiated in -

(i) the same post, or(ii) a permanent or temporary post on the same time-scale, or(iii) a permanent post other than a tenure post, on an identical time-scale or a temporary post on an identical time-scale, such post being on the same time-scale as a permanent post; or(2) is appointed substantively to a tenure post on a time-scale identical with that of another tenure post which he had previously held substantively or in which he has previously officiated, then the initial pay shall not be less than the pay, other than special pay, personal pay or emoluments classed as pay by the Governor under Rule 9(21)(iii), which he drew on the last such occasion and he shall count for increments the period during which he drew that pay on such last and any previous occasions. If, however, the pay last drawn by the government servant in a temporary post has been inflated by the grant of premature increments the pay which he would have drawn but for the grant of those increments shall be taken for the purposes of this proviso to be the pay which he last drew in the temporary post.'

10. Even though the post of the petitioner is temporary he could be and was appointed substantively to the post of an Additional Executive Officer inasmuch as there was no one else who held a lien on the newly created post. The petitioner did hold a Hen on his permanent post as the Secretary. But, it cannot be said that he had officiated in the same post as that of the Additional Executive Officer when he officiated in 1948. In 1948, the post to which the petitioner was appointed in 1957 did not even exist. I am not satisfied that the petitioner had even' officiated either in a temporary or permanent post on the same time-scale as the temporary post to which he was appointed on 12-12-1957. Moreover, the 'last such occasion' must be determined in relation to the date on which the petitioner was appointed substantively to a post. The date on which the petitioner was appointed substantively to the relevant post could only be 12-12-1957.

The last occasion on which he officiated as Executive Officer in relation to this appointment was in June 1952 when he drew a total monthly salary of Rs. 500/-only, out of which Rs. 300/- was the salary of the petitioner's substantive appointment and Rs. 200/- was the additional salary paid for officiating as Executive Officer. Consequently, it cannot be said that, even if the appointment of an Additional Executive Officer on 12-12-1957 could possibly be to the same post or equivalent post as that of the Executive Officer in 1948, the petitioner was not getting the scale he got on the last occasion he officiated as an Executive Officer. I am unable to accept the contention that all the occasions on which he got the lesser salary of Rs. 500/- per month must be deemed to be non-existent or must be assumed to be occasions on which the petitioner drew a salary of Rs. 750/- per month merely because the petitioner says that he ought to have drawn that salary. The Fundamental Rule does not speak of the salary which ought to have been drawn on the last such occasion but the salary which the Government servant actually drew.

11. Therefore, from whatever angle the petitioner's claim is examined, it is not possible to accept it. I, therefore, dismiss this writ petition with costs.


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