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Bhagwati Prasad Misra and anr. Vs. U.P. Government and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 821 of 1957
Judge
Reported inAIR1959All589
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC) , 1908; Uttar Pradesh District Boards Act, 1922 - Sections 26A
AppellantBhagwati Prasad Misra and anr.
RespondentU.P. Government and ors.
Appellant AdvocateG.N. Varma, Adv.
Respondent AdvocateS.S. Srivastava, Adv. and ;Standing Counsel
DispositionPetition dismissed
Excerpt:
(i) civil - dismissal of writ petition - article 226 of the constitution of india - dismissal of writ petition not on ground of merits but on its non maintainability - could not be urged as a bar to the entertainment of this petition and not possible to accept the objection on ground of suppression of material facts -once petitioner invoked the jurisdiction of government to interpret the rule it did not lie in his mouth to say that the reference was not incompetent and therefore objection must be overruled. (ii) interpretation of statutes - phrases and sentences in a section or rule - held, to be constructed according to the rules of grammar. (iii) application for appointment - rules i (2) (c) and i (2) (d) page 207 of u.p. district board manual - application for appointment of secretary.....orderj. sahai, j. 1. the petitioner no. 1 sri bhagwati prasad misra is a member of the district board of basti (hereinafter referred to as the board) and the petitioner no. 2 is a taxpayer of the said board. the board invited applications from persons qualified to be appointed as secretary of the said board by putting an advertisement in the issue of the amrita bazar patrika of 26-10-1955. the last date for receiving the applications was 10-11-1955. according to the allegations in the affidavit filed in support of the petition the respondent no. 4 along with 58 others applied for the said post. it is the petitioner's case that the respondent no. 4 sri mrigendra nath srivastva was not qualified for the said appointment, firstly, because he is the son-in-law of one sri kripa shankar,.....
Judgment:
ORDER

J. Sahai, J.

1. The petitioner No. 1 Sri Bhagwati Prasad Misra is a member of the District Board of Basti (hereinafter referred to as the Board) and the petitioner No. 2 is a taxpayer of the said Board. The Board invited applications from persons qualified to be appointed as Secretary of the said Board by putting an advertisement in the issue of the Amrita Bazar Patrika of 26-10-1955. The last date for receiving the applications was 10-11-1955. According to the allegations in the affidavit filed in support of the petition the respondent No. 4 along with 58 others applied for the said post.

It is the petitioner's case that the respondent No. 4 Sri Mrigendra Nath Srivastva was not qualified for the said appointment, firstly, because he is the son-in-law of one Sri Kripa Shankar, Parliamentary Secretary to the Chief Minister of U. P., and who was on 10-11-1955 a member of the Board and, secondly, because he (the respondent No. 4) did not file the required medical certificate as also the riding certificate.

One of the applicants for the said post was one Kailash Shankar who is said to be the grandson of the petitioner No. 2. On 6th of November. 1955, Sri Kripa Shankar submitted his resignation from the office of member of the Board and on 25-12-1955 the said resignation was accepted by the respondent No. 6 the Commissioner of Gorakhpur Division. A committee was appointed by the Board to interview the various candidates who had applied for appointment to the post of Secretary of the Board.

The said Committee is said to have consisted of Sri Tameshwar Prasad, President of the Board, and Sarva Sri Rai Jai Narain, advocate, Ram Shanker Lal, mukhtar, and Dhanuk Dhari and Ram Lal who are said to have no educational qualifications. It is further alleged that because of the influence of Sri Kripa Shanker the interview committee were interested in the appointment of the respondent No. 4 Sri Mrigendra Nath Srivastva who was at that time holding the post of Executive Officer ofthe Municipal Board, Basti (respondent No. 5) and therefore selected him.

After the selection the respondent No. 4 was appointed as the Secretary of the Board. It is also alleged that after he had been so appointed, the son of the Chairman of the Board was appointed as the Executive Officer of the Municipal Board of Basti. The petitioners have alleged that before these appointments were made it was pointed out to the respondents Nos. 1, 3 and 6 i.e., the State Government, the District Magistrate, Basti, and the Commissioner, Gorakhpur Division, that the whole matter had been pre-arranged and the appointments would not be made on merits and that it had been decided to appoint the respondent No. 4 as the Secretary of the Board and the son of the President of the Board as the Executive Officer of the Municipal Board, Basti.

It is admitted in the affidavit filed in support of the petition that before the respondent No. 4 was appointed as Secretary of the Board the Board had referred the matter to the State Government because some difficulty was felt about the interpretation of Rule 1 prescribing qualifications of District Board Secretaries given on page 207 of the District Board Manual, and the State Government answered the reference by saying that there could be no objection to the appointment of the respondent No. 4 as the Secretary of the Board on a correct interpretation of the said rule.

It is also alleged that in the meeting in which the respondent No. 4 was appointed as the Secretary of the Board, members of the Board who were not willing to support the candidature of the respondent No. 4 were prevented from entering the place where the meeting was being held as the meeting was held under a police cordon with the result that out of 57 members only 34 attended the meeting. The petitioner's case is that the respondent No. 4 was appointed on the condition that he would furnish certificates of medical fitness and outdoor service and also of being able to ride a horse as required by Rule 1 (c) of the rule mentioned above.

Sri Kailash Shanker mentioned above applied to the District Magistrate to declare the appointment of the respondent No. 4 as invalid but he declined to accept the application. It is further alleged by the petitioners that the respondent No. 4 has not resigned from the post of Executive Officer of the Municipal Board, Basti, though he joined as the Secreteary of the Board.

2. On these facts the petitioners have prayed for the issue of a writ of quo warranto commanding the respondent No. 4 to show the legal authority under which he is holding the post of Secretary of the Board. There is also a prayer for the issue of a writ of certiorari to the respondent No. 2 quashing the entire proceedings relating to the appointment of the respondent No. 4 as Secretary of the Board including the order dated 24-11-1956 appointing the respondent No. 4 to the said post.

There is also a prayer for the issue of a writ of mandamus commanding the respondents No. 1 to 3 to cancel the appointment of the respondent No. 4 and for a further writ of mandamus commanding the respondent No. 3 to declare the appointment of the respondent No. 4 as Secretary of the Board as invalid. It has also been prayed that a writ of mandamus be issued commanding the respondents Nos. 1 to 3 to reconsider the matter of appointment afresh according to law after cancelling the appointment of the respondent No. 4. There is also the usual prayer for the issue of anyother suitable writ, command or direction which the circumstances of the case may warrant.

3. Three counter affidavits have been filed in the case. One is sworn by Sri Mrigendra Nath Srivastava the respondent No. 4, the second is sworn by Sri Hathi Prasad, office superintendent of the Board, and the third is sworn by Sri Shriram Asthana. It is not necessary to mention all the allegations made in these counter affidavits. I shall take each of these counter affidavits one by one and shall mention only these facts which are relevant for the decision of the case. It is admitted by Sri Mrigendra Nath Srivastva that Sri Kripa Shanker, Parliamentary Secretary to the Chief Minister of U. P., is his father-in-law and was a member of the Board from before 10th of November, 1955.

It is alleged that he submitted his resignation on 6th November, 1955 from the membership of the said Board. It is also admitted that Sri Mrigendra Nath Srivastva had not filed a medical certificate showing that he was medically fit for outdoor active service nor had he filed a riding certificate. According to this counter affidavit Sri Kripa Shan-leer was not a member of the Board on 19th of August, 1956 when Sri Mrigendra Nath Srivastava was selected for appointment as the Secretary of the Board nor was he a member on 8th of October, 1956 when the respondent No. 4 joined the service of the Board as Secretary.

It is also alleged that there was no precedent requiring, the filing of the medical certificate or the riding certificate along with the application for appointment as Secretary of the Board and the general practice was that the said certificates were filed after a candidate had been selected for appointment. It is also alleged that in the advertisement appearing in the issue of the Amrita Bazar Patrika it was not mentioned that the application had to be accompanied by a medical certificate showing fitness for outdoor service. According to this counter affidavit the medical certificate and the riding certificate were submitted to the Board by the respondent No. 4 on 8th of October 1956 before joining the post. The allegation made in the affidavit filed in support of the petition that Sri Kripa Shanker resigned his membership on 6th of November, 1955 and his resignation was accepted on 20th of December, 1955 is admitted, but the allegation that the members of the interview committee were partymen of Sri Kripa Shanker is controverted.

It is also mentioned that Sarva Sri Dhanuk Dhari and Ram Lal, are literate persons and were at the time of the appointment of the respondent No. 4 as also on the date when the counter affidavit was filed members of the U. P. Legislative Assembly. It is further stated in the counter affidavit that the respondent No. 4 was appointed as the Secretary of the Board by a unanimous resolution. The allegation of the petitioners that Sri Kailash Shanker had applied for permission to inspect the file relating to the appointment of Secretary and that permission to inspect was refused by the President has been admitted.

It is further alleged in the counter affidavit that respondent No. 4 had Joined on 8th of October, 1956 on one year's probation and the Municipal Board, Basti, has decided to treat him as on deputation for one year with the District Board, Basti. It is admitted that the respondent No. 4 was to hold a lien on the post of Executive Officer, Municipal Board, Basti, during the said period but the allegation that he was holding two posts i.e.. one of the Secretary of the Board and the other of Executive Officer of the Municipal Board has beencontroverted and it has been stated that he was-drawing salary only from the Board.

It is also alleged in this counter affidavit that Sri Kailash Shanker had filed a writ petition in this Court (being civil miscellaneous writ No. 4191 of 1956) on allegations similar to these contained in the present petition and the said petition was rejected by Mehrotra, J., by his order dated 6th of December, 1956. It is also alleged that the petitioner Sri Bhagwati Prasad Misra is displeased with the President of the Board, Sri Tameshwar Prasad as the latter had objected to a T. A. bill submitted! by the former.

It is also alleged that Sri Bhagwati Prasad Misra petitioner tried to obtain the Congress ticket for contesting the U. P. Legislative Assembly Elections in 1952 and again in 1957 but he was not given the ticket and so he is displeased with Sri Kripa Shanker.

4. In the counter affidavit sworn by Sri Hathi Prasad it is stated that Srj Kripa Shanker was a member of the Board on 10-11-1955 and though, he had resigned on 6-11-1955 his resignation was accepted only on 20-12-1955. It is also admitted that Sri Mrigendra Nath Srivastava did not file a medical certificate as also a riding certificate though it is stated that he possessed a riding certificate dated 2-11-1956.

It is also alleged that there is no precedent for the certificates being filed along with the application for appointment and the general practice is that the same are filed after a candidate has been selected. It is also alleged in the counter affidavit that Sri Kripa Shanker ceased to be a member of the Board from 28-12-1955 on which date the order accepting his resignation was communicated to the Board. It has also been stated in the counter affidavit that Sri Kripa Shanker was not present in the meeting of the Board in which the interview committee was appointed.

The committee, according to the allegations made in this counter affidavit, was formed by a unanimous resolution dated 29-1-1956 and the petitioner No. 1 Sri Bhagwati Prasad Misra also voted for the resolution. No objection was raised either by him or by any other member to the personnel or the committee. The fact that Sri Kailash Chandra son of Sri Tameshwar Prasad, President of the Board, was appointed as the Executive Officer of the Municipal Board, Basti, has been admitted.

The allegation that the whole thing was prearranged and the interview before the committee was a farce has been controverted; so also the allegation that Sri Tameshwar Prasad and the members of the interview committee were interested in Sri Mrigendra Nath Srivastava. The allegation that some of the members of the interview committee were illiterate has also been controverted and it has been stated that Sarva Sri Dhanuk Dhari and Ram Lal were not only literate persons but were also members of the U. P. Legislative Assembly.

It is stated that the members of the interview committee were not required to select the candidate but they had only to report their impressions about the various candidates to the Board. A meeting of the Board was held on 22-4-1956 when the question of the appointment to the post of Secretary was taken into consideration and the applications of various persons were put up for consideration before the Board.

Some members suggested that the applications of Sarva Sri Mrigendra Nath Srivastava and Shatrujeet Pal Singh be not considered inasmuch as the former was a relation of Sri Kripa Shanker and thelatter a relation of Sri Ansuman Singh both of whom were members of the Board of which the term had not expired, and it was submitted bythese members that though the resignations of Sarva Sri Kripa Shanker and Ansuman Singh had been accepted and they were no longer members of the Board they had nonetheless been members of that Board within the meaning of Rule 1 of the rule relating to the appointment of Secretary.

The Board passed a unanimous resolution referring the matter to the Government for clarification about the interpretation of the rule. It is alleged that the reference was answered in a manner which would not stand in the way of appointment of Sri Mrigendra Nath Srivastava as Secretary of the Board. The allegation that the meeting of the Board held on 19-8-1956 was held under a police cordon and that some members of the Board were prevented from attending the meeting has been controverted.

It is stated that 36 and not 34 members as alleged by the petitioners out of a total strengthof 57 attended the meeting of that date. It isadmitted that three police constables were present in the verandah of the Board's office where themeeting was being held in order to 'prevent some untoward incident 'in the meeting'. The allegation that Sri Kailash Shanker applied for inspection ofthe file relating to the appointment of Sri Mrigendra Nath Srivastava and the same was refused to him has been admitted but it is said that the refusal was made in view of Rule 4 printed on page 179 of the District Board Manual.

The allegation made in the counter affidavit filed by Sri Mrigendra Nath Srivastava about Sri Bhagwati Prasad Misra petitioner being displeased with the President of the Board Sri Tameshwar Prasad has been made in this counter affidavit also, and it is stated that the present petition has beenfiled to harm the reputation of Sri Tameshwar Prasad as also that of Sri Kripa Shanker.

5. In the counter affidavit sworn by Sri Shriram Asthana, Sanitary Inspector of the MunicipalBoard, Basti, it is stated that an advertisement wasmade in the issues of the National Herald, thePioneer and the Amrita Bazar Patrika dated 11-10-1956, 12-10-1956 and 11-10-1956 respectively forthe post of Executive Officer, Municipal Board,Basti, and 39 persons including Sri K. C. Agarwalthe son of the President of the District Board hadapplied for appointment. All the 39 candidateswere interviewed and Sri K. C. Agarwal was appointed by unanimous resolution.

6. A preliminary objection has been taken tothe maintainability of the present writ petition onthe ground that an earlier petition made by Sri Kailash Shanker was rejected by Mehrotra, J., on 6-12-1956 and the present petition which is based on similar allegations could not be entertained. It was also submitted that the petitioners had suppressed the fact of the dismissal of the writ petition filedby Sri Kailash Shanker and therefore the present petition should be dismissed on the ground of suppression of material facts.

I have looked into the order passed by Mehrotra, J., on 6-12-1956 dismissing the earlier writ petition. The petition of Shri Kailash Shanker wasdismissed because Mehrotra, J., found that Sri Kailash Shanker could not come to this Court under Article 226 of the Constitution of India. The learned Judge observed as follows : --

'The petitioner cannot come to this Courtunder Article 226 of the Constitution unless he can show that he has some right to do so. The petitioner was only one of the rival candidates for appointment to that post and his application was not accepted by the opposite party. He had no right to be appointed to that post and consequently the appointment of opposite party No. 4 will not affect his rights at all. He has, therefore, no right which he can ask for being enforced under Article 226 of the Constitution.

It was strenuously contended by the petitioner's counsel that he was in fact asking for a writ of quo warranto and as he was one of the rival candidates he can come to this Court for a writ of quo warranto. There is no force in this contention of the petitioner. No right accrues to a rival candidate who applies to any post to come and challenge the appointment made by the proper authority. .....'

It would be seen that the petition of Kailash Shanker was not dismissed on merits but on the ground that he could not maintain it The dismissal of that petition cannot therefore be urged as a bar to the entertainment of the present petition. In that view of the matter it is not possible to accept the other objection of the respondents also which is to the effect that the petitioners suppressed material facts.

It was not necessary for the petitioners to have mentioned the fact of the dismissal of the writ petition of Kailash Shanker in the circumstances of the present case. Apart from it I am not satisfied that the respondents have proved that the petitioners had knowledge of the earlier proceedings and they intentionally suppressed that fact in their petition and the affidavit filed in support of it. I therefore overrule the preliminary objection.

7. Four points have been pressed before me in support of this petition by the learned counsel for the petitioners. They are : (1) that the Board had no jurisdiction to refer any matter regarding interpretation of the rules to the State Government; (2) that Sri Mrigendra Nath Srivastava was holding two posts i.e., one of Executive Officer of the Municipal Board, Basti, and the other of Secretary of the District Board, Basti, which he could not do;(3) that the proceedings for the appointment of the respondent No. 4 are bad and illegal on the ground that they are based on nepotism; and (4) that the appointment of the respondent No. 4 as Secretary of the Board could not be made in view of Rule 1 of the rules relating to the appointment of Secretary printed on page 207 of the U. P. District Broad Manual.

8. I will first take the first submission of the learned counsel for the petitioners i.e., the one relating to the power of the Board to refer any matter regarding interpretation of the rules to the State Government. It has been amply proved by the allegations made in the counter affidavits sworn by Sri Mrigendra Nath Srivastava and Sri Hathi Prasad that the matter relating to the interpretation of Rule 1 was referred by a unanimous resolution of the Board.

The petitioner No. 1 Sri Bhagwati Prasad Misra was one of the members who voted for that resolution. In my opinion even if there was no provision for referring the matter to the State Government the petitioners cannot challenge the said reference because one of them at any rate was a party to the reference. In Halsbury's Laws of England Vol. 9 (Hailsham Edition), page 879 it has been laid down as follows : --

'The writ will never be granted to remove an erroneous order at the instance of the party in whose favour the error was made.'

In as much as the petitioner No. 1 had himself invoked the jurisdiction of the Government to interpret the rule it does not lie in his mouth now to say that the reference was not competent. I therefore overrule this submission of the learned counsel for the petitioners.

9. The second ground that the respondent No. 4 was holding two posts which he could not legally do, to my mind, is also untenable. It has been fully explained in the counter affidavits that the respondent No. 4 was only occupying two posts as he was appointed on one year's probation as the Secretary of the Board. He did not resign the post of Executive Officer of the Municipal Board but was treated to be on deputation with the District Board. There is nothing illegal or improper in this act and I reject the second submission of the learned counsel for the petitioners also.

10. I am not satisfied that there is any substance in the third submission of the learned counsel also. It is true that the son of the President of the Board was appointed as the Executive Officer of the Municipal Board, Basti. It is also true that the respondent No. 4 is the son-in-law of Sri Kripa Shanker, Parliamentary Secretary to the Chief Minister of U. P., and a member of the District Board, Basti, at the time when the respondent No, 4, (who is his son-in-law) had applied for appointment as Secretary of the Board.

Though there may be some suspicion for believing that the appointment of the respondent No. 4 as Secretary of the Board was not made on merit alone there is no evidence on the record of the present case to justify a definite finding that his appointment was the result of nepotism and was brought about due to the influence of his father-in-law and because the son of the President of the District Board was provided for in the Municipal Board, Basti. I therefore reject this contention of the learned counsel also.

11. The only submission of the learned counsel for the petitioners which requires some consideration is that the respondent No. 4 could not be appointed as the Secretary of the Board because of Rule 1 of the rules relating to the appointment of Secretaries of District Boards. The said rule runs as follows :

'1. No person shall be appointed as Secretary of a district board unless -

(a) (1) he holds a degree of a recognized university in Arts, Science or Commerce and can read and write both forms of vernacular of this State fluently; or

(2) he has had at least five years' experience in responsible charge of ordinary public works and possesses a degree or diploma in Civil Engineering of any university in the United Kingdom, or of any engineering college in the United Kingdom recognized by the Government in this behalf or of an Indian University or College recognized by Government in this behalf, or a diploma of membership or associate membership of the Institution of Civil Engineers, England, or the Institution of Municipal and County Engineers, England, or the Institute of Engineers, India.

(b) he is less than 32 years of age, or has serv-ed as secretary to a board previously for at least two years;

(c) he is medically fit for outdoor active service and holds a riding certificate signed by a district officer:

(d) neither he nor any of his relations has been a member of the board in whose term the appointment takes place.

Note.-- For the purpose of Clause (d) 'relation means father, grandfather, father-in-law, paternal or maternal uncle, son, grandson, son-in-law, brother, nephew, first cousin, paternal brother or maternal wife's brother or sister's husband.

Provided that the State Government may permit the appointment of an engineering graduate as secretary without the full five years' experience in responsible charge of public works if they are satisfied that he is capable of discharging the duties of the post.'

The relevant provisions are Clauses (c) and (d). It is true that the respondent No. 4 had not filed along with his application a certificate declaring him to be medically fit for outdoor active service and a riding certificate issued by a district officer. It has however been sworn in the counter affidavit that he held a riding certificate dated 2nd of November, 1955. The rule does not require that the application for appointment as Secretary must be accompanied by a certificate of medical fitness for outdoor duties and a riding certificate.

All that is necessary is that the applicant must hold a riding certificate signed by a district officer at the time of his appointment and must be medically fit for outdoor active service. In fact under the rule it is not necessary that a medical certificate should be filed. In the present case it has been fully established by the allegations made in the counter affidavit that the respondent No. 4 did hold a riding certificate issued by a district officer at the time of his appointment and he was also medically fit for outdoor active service.

The appointment of the respondent No. 4, therefore, to my mind, is not hit by Clause (c) of Rule 1. As regards Clause (d) the question for determination is whether the words 'whose term' refer to member or to the board. If they refer to the member it is obvious that the respondent No. 4's appointment would not be hit by this clause because the term of membership of Sri Kripa Shanker came to an end on 28th December, 1955 i.e., before the respondent No. 4 was appointed as Secretary of the Board.

If however the expression 'whose term' refers to the board then the appointment of the respondent No. 4 would be hit by this clause because the term of the Board of which Sri Kripa Shanker had been a member did not expire before the respondent No. 4 was. appointed as Secretary of the Board. It is contended by the learned counsel for the petitioners that the expression 'whose term' must relate to the board because had it related to the member the expression would have been 'whose term of office.'

The submission of the learned counsel is that the whole scheme of the U. P. District Boards Act chows that whenever a reference has been made to the term of a member the expression used is 'term of office' and it is only with regard to the term of the board that the expression 'term' and not 'term of office' has been used. My attention has been invited to Section 26-A of the District Boards Act (hereinafter referred to as the Act) which runs as follow? ;

'26-A. There shall be a general election of members of all district boards every fourth year after the last general election, on such date or dates as the State Government may by notification in the official Gazette, appoint in this behalf :

Provided that the State Government may, by notification in the official Gazette extend from time to time the term of any board or boards and postpone the general election of members thereof for a period not exceeding one year at a time.

Provided also that the first election of a new Board shall he held on such date as the State Government may, by notification in the official Gazette, appoint in this behalf.'

It is contended that where the question of the term of a hoard was concerned the Legislature has used the expression 'term of any board.' Similarly my attention has been drawn to Section 32 of the Act which runs as follows :

'32. (1) A member removed under Clause (a) of Sub-section (1) of the preceding section shall, if otherwise qualified, be eligible for further election or co-option.

(2) A member removed under Clause (b) of subsection (1) of the preceding section shall not be so eligible unless and until he is again enrolled as an elector.

(3) A member removed under any other provision of preceding section shall not be so eligible until the expiry of the period of two years, or the expiry of the term of the board, whichever is later.'

It is again pointed out that with reference to the board the expression 'term of the board' has been used. As against this my attention has been invited to Section 29 of the Act which runs as follows :

'29. (1) The term of office of a member of a board shall begin from the date upon which, he is declared by the returning officer to be elected or from the date of his co-option, or from the date upon which the vacancy occurs which he is elected or co-opted to fill, when the vacancy occurs subsequent to the election or co-option.

(2) All members of a board shall vacate their offices as such on a date which shall be fixed by the State Government by notification in the official Gazette after the first day of the general election.'

It is pointed out that with reference to a member the expression used is 'term of office of a member'. My attention has also been drawn to Section 7 of the Act where again the expression used is 'term of office of that member'. In Section 36 of the Act also it would be noticed that with regard to the election of the President the words 'Terms of office' have been used. Similarly in Section 44 of the Act the expression 'term of office' has been used with regard to a Vice-President.

It cannot be denied that the expression 'term of office'' has been used in connection with the term of a member or the President or the Vice-President of the board, and the simple expression 'term' has been used with regard to the term of the board. To the various expressions used in the rules the same meaning should be given as is given to these expressions in the Act itself. It must be held that there is force in the contention of the learned counsel for the petitioners that the expression 'whose term' relates to the board and not to the member. In my opinion the use of the words 'has been a member of the board' is also very significant.

If the idea was that no person should be appointed as the Secretary of a Board at a time when any of his relations is a member the expression 'has been a member' would not have been used and Clause (d) would not have been worded as it is. The words would have been as follows : -- 'neither he nor any of his relations is a member of the board at the time when the appointment was made.' It would be noticed that the rule has now been amended and a Gazette notification has been published regarding that amendment on 6th of April, 1957 and the amended clause is as I have just mentioned above.

It would also be noticed that the expression 'whose term' is nearer to the word 'board' than the word 'member' and therefore according to the ordinary rules of grammar the expression 'whose term' should relate to the board and not to the member. It has been contended by the learned counsel for the respondents that the commonsense interpretation would be that the expression 'whose term' should relate to the member because rules of public propriety demand that a person who is either himself a member or a relation of a member of the board should not be appointed to the post of Secretary of the Board, and there was no sense in prohibiting the appointment of a person who at the date of his appointment is neither himself a member nor has any of his relations as a member of the board.

I am unable to agree with this contention. The first and most elementary rule of construction is that the phrases and sentences in a section or rule should be constructed according to the rules of grammar and it is not allowable to depart from the literal meaning of the words used. In other words, the

'underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expressions used therein rather than from any notions which may be entertained by the court as to what is just or expedient. The words cannot be construed, contrary to their meaning, as embracing or excluding cases 'merely because no good reason appears why they should be excluded or embraced. However unjust, arbitrary or inconvenient the meaning conveyed may be, it must receive its full effect. When once the meaning is plain, it is not the province of a court to scan its wisdom or its policy. Its duty is not to make the law reasonable, but to expound it as it stands, according to the real sense of the words,' (see Maxwell on Interpretation of Statutes, 1953 Ed., pages 3, 4 and 5).

In my opinion, therefore, the expression 'in whose term' relates to the board and inasmuch as Sri Kripa Shanker was a member during the term of the Board which appointed the respondent No. 4 as Secretary of the Board, the appointment is in contravention of Clause (d) of Rule 1 mentioned above.

12. It has been contended that under the District Boards Act a board has no term and therefore there could be no question of the words 'in whose term' applying to a board. I am unable to agree with this contention. Section 26-A of the Act has the effect of putting the term of a board at four years. The proviso to that section clearly uses the words 'extend from time to time the term of any board' and Section 26-A itself provides for a general election every four years.

To my mind it is quite clear from Section 26-A that the term of a District Board is four years and the argument that a board has no term does not appear to me to be correct. In any case, as I have mentioned above, the first proviso to Section 26-A does mention the term of the board and therefore it cannot be said that the Act does not contemplate any term for a board.

13. The question that now arises for consideration is whether in view of my decision that the appointment of the respondent No. 4 was in contravention of Clause (d) of Rule 1, the writ petitionshould be allowed. But before that question can be decided it is necessary to consider the provisions of Section 172 of the Act which runs as follows : --

'172 (1) The State Government shall make rules consistent with this Act in respect of the matters described in Sections 26, 123, 157 and 163.

(2) That State Government may make rules consistent with this Act-

(a) Providing for any matter for which power to make provision is conferred, expressly or by implication, on the State Government by this or any ether enactment in force at the commencement of this Act; and

(b) generally for the guidance of a board or any Committee of a board or any Government officer in any matter connected with the carrying out of the provisions of this Act.'

14. It would be noticed that Rule 1 could not have been framed under Section 172 (1) because it is not a matter connected with Sections 26, 123, 157 and 163 of the Act. Section 26 deals with matters relating to the conduct of elections. Section 123 deals with matters relating to the assessment and collection of taxes. Section 157 deals with matter relating to the authority on which money may be paid from the district fund, the conditions on which property may be acquired by a board and any other matter relating to the fund or property of the board.

Section 163 deals with matters relating to accounts and budgets. None of these sections have got anything to do with the appointment of the Secretary. It is therefore clear that Rule 1 has not been made and could not be made under Section 172(1) of the Act. The rule must have been made under Clause (b) of Section 172 (2) of the Act. A rule made under Clause (b) of Sub-section (2) of Section 172 of the Act is made only for the guidance of a board and disregard of that rule cannot be an actionable wrong. Merely because that rule has been disregarded if cannot be said that the appointment of the respondent No. 4 is an appointment made without jurisdiction.

The board had the power to appoint a secretary. Therefore the appointment of the respondent No. 4 is within the jurisdiction of the Board. Even though there has been a disregard of Rule 1 which is made only for the guidance of the Board, the appointment of the respondent No. 4 cannot be called in question nor can it be said that he has no authority to hold that office. To my mind therefore, (he petition must fail.

15. The petition is accordingly dismissed butin the circumstances of the present case I make noorder as to costs.


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