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Abdul Hafeez Khan, Abdul Gafoor Khan Vs. Government of Madhya Pradesh Local Govt. Dept. (Urban) and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 166 of 1963
Judge
Reported inAIR1965MP48
ActsBhopal State Municipalities Act, 1955 - Sections 48, 55, 55(1) and 55(3); Madhya Pradesh Municipalities Act, 1961 - Sections 94(4) and 94(6); Constitution of India - Article 311
AppellantAbdul Hafeez Khan, Abdul Gafoor Khan
RespondentGovernment of Madhya Pradesh Local Govt. Dept. (Urban) and ors.
Appellant AdvocateA.P. Sen and ;R.S. Dabir, Advs.
Respondent AdvocateR.J. Bhave, Govt. Adv. for Respondent No. 1, ;Ram Panjwani, Adv. for Respondent Nos. 2 and 3 and ;K.A. Chitaley and ;A.S. Usmani, Advs. for Respondent No. 4
DispositionPetition dismissed
Cases ReferredIn Vishweshwar v. Chairmans State Transport Authority
Excerpt:
.....every appointment to, and dismissal from, such post, shall be subject to a like approval. but an octroi superintendent is clearly not an assessment or revenue officer envisaged by section 55(1). by the expression 'an assessment or revenue officer' used in section 55 what is meant is an officer appointed in charge of assessments of all rates, taxes and duties and of all money which the municipality collects and receives from whatsoever source and in whatever manner. section 55(1) did not clearly contemplate this absurd result. 8. the post of octroi superintendent clearly fell under section 55(3); and an appointment to that post could be made either by the municipal board or any officer of the board as stated in the rules framed by the state government in that behalf. the words 'all..........by the municipal council pursuant to that resolution reverting the petitioner from the post of octroi superintendent to the post of octroi inspector.2. the applicant was first appointed to officiate as 'octroi superintendent by an order made toy the president of the municipal board on 15th february 1960. on 28th february 1961 the president passed an order confirming the applicant's appointment as superintendent, octroi. thereafter, the petitioner continued to hold the post of octroi superintendent on a permanent basis in the pay-scale of rs. 175-25-300 besides allowances. it appears that the respondent no. 4 anwarul haque, a bead-clerk in the municipal council, filed a representation to the government against the appointment of the petitioner as octroi superintendent contending that.....
Judgment:

Dixit, C.J.

1. In this application under Article 226 of the Constitution the petitioner prays for the issue of a writ of certiorari for quashing a resolution dated 4th April 1963 of the Standing Committee of the Municipal Council, Bhopal, and the order dated 24th April 1963 made by the Municipal Council pursuant to that resolution reverting the petitioner from the Post of Octroi Superintendent to the post of Octroi Inspector.

2. The applicant was first appointed to officiate as 'Octroi Superintendent by an order made toy the President of the Municipal Board on 15th February 1960. On 28th February 1961 the President passed an order confirming the applicant's appointment as Superintendent, Octroi. Thereafter, the petitioner continued to hold the post of Octroi Superintendent on a permanent basis in the pay-scale of Rs. 175-25-300 besides allowances. It appears that the respondent No. 4 Anwarul Haque, a bead-clerk in the Municipal Council, filed a representation to the Government against the appointment of the petitioner as Octroi Superintendent contending that the petitioner's appointment by the President was illegal and that he was entitled to be appointed to the post. When this representation was taken up for consideration, correspondence was exchanged between the Government and the Municipal Council, the Government taking the stand that the post of Octroi Superintendent was a post falling within the term 'an Assessment or Revenue Officer' used in Section 55(1) of the Bhopal State Municipalities Act, 1955 (hereinafter referred to as the Act) and as such the prior approval of the Government to the appointment of the petitioner to that post was necessary and as no such approvalwas obtained, the petitioner's appointment as Octroi Superintendent was illegal; and further thatrespondent No. 4 Anwarul Haque was qualified forbeing appointed as Octroi Superintendent. On theother hand, the Municipal Council took up theposition that an Octroi Superintendent was neitheran Assessment nor a Revenue Officer within themeaning of those expressions used in Section 55 (1);that there was already a Revenue Officer for theMunicipal Council and, therefore, the Government'sapproval to the appointment of the petitioner asOctroi Superintendent was not necessary; and thatunder Section 48 (e) of the Act all residuaryduties, powers and functions of the Municipal Boardhad been vested in the President and he was, therefore, competent to make the petitioner's appointment as Octroi Superintendent. Ultimately, on5th September 1962 the Government addressed aletter to the Chief Municipal Officer of the Municipal Council, Bhopal, adhering to the interpretationput by it on Section 55 (1) and adding that thematter of the appointment of a person to the postof Octroi Superintendent should bereviewed by the Municipal Council and the claimfor promotion of the respondent Anwarul Haqueshould also be considered by the Municipal Counciland that proposals for the appointment of a suitable person to the post should be sent to theGovernment through the Collector, Sehore, and theCommissioner, Bhopal.

3. After the receipt of this communication, the Standing Committee of the Municipal Council passed a resolution on 4th April 1963 appointing Anwarul Haque as Superintendent, Octroi, and reverting the petitioner to the post of Inspector, Octroi, which he occupied before he was appointed by the President's order dated 15th February 1960to officiate as Octroi Superintendent. On 22nd April 1963 the petitioner was informed by the Chief Municipal Officer of the resolution passed by the Standing Committee on 4th April 1963. On 23rd April 1963 the President of the Standing Committee passed a formal order implementing the resolution dated 4th April 1963 of the Standing Committee. On 24th April 1963 the Chief Municipal Officer of the Municipal Council passed an order appointing the respondent No. 4 Anwarul Haque as Superintendent, Octroi, and reverting the petitioner to the post of Octroi Inspector.

4. It was argued by Shri Sen, learned counsel appearing for the petitioner, that in the absence of any rules relating to appeals and representations framed under Section 55(4) of the Act the Government had no jurisdiction to entertain or decide the representation made by Anwarul Haque against the petitioner's appointment; that the applicant was not made a party to the proceedings of the hearing of the representation; that Anwarul Haque did not possess the minimum qualifications prescribed for the post of Octroi Superintendent by the Fundamental Rules for Municipal employees, 1948 and that the Government had no power to direct the Municipal Council that it should review the 'matter of the appointment of the petitioner as Octroi Superintendent and consider the claims of the fourth respondent for appointment to the post. It was also urged that the interpretation put by the Government on the term 'Assessment or Revenue Officer' occurring in Section 55(1) was altogether erroneous; that there was already a separate post of the Revenue Officer in the Municipal Council borne on a higher cadre than that of the Octroi Superintendent and filled by one Aejaz Hussain; that the post of Octroi Superintendent was not one falling either under Sub-section (1) or under Sub-section (3) of Section 55; and that, therefore, the President could, under the powers conferred on him by Section 48fa) and (e) of the Act, appoint the petitioner as Octroi Superintendent, without obtaining the Government's approval.

5. In the returns filed on behalf of the Government and the Municipal Council and its Standing Committee it has been stated that an Octroi Superintendent is, under Rule 3(d) of the Rules for the Assessment and Collection of Octroi Duty framed under the Bhopal State Municipalities Act, 1916, an Assessment Officer; that these Rules were continued by the 1955 Act, and, therefore, the Octroi Superintendent is an Assessment Officer within the meaning of that term as used in Section 55(1) of the Act; and that as under Section 55(1) an Assessment Officer could be appointed only by the Government the petitioner's appointment as Octroi Superintendent by the President was illegal. It has been further averred that if Section 55(1) did not cover the appointment of an Octroi Superintendent, then the appointment of any person to that post would fall under Sub-section (3) and could only be made by the Municipal Board and not by the President and that the President had no power under Section 48 of making the petitioner's appointment as Octroi Superintendent. The respondents say that the Government issued the direction dated 5th September 1962 to the Municipal Council in the exercise of its power under Sections 27, 29 and 31 of the Act. In the return filed on behalf of the Government no reply has been given to the petitioner's averment that there is already a separate post of a Revenue Officer in the Municipal Council and that that post is being held by one Aejaz Hussain; but in the return filed on behalf of the Municipal Council and the Standing Committee it has been admitted that there is a separate Revenue Officer. It has, however, been added in that return that the Revenue Officer is in charge of house-tax, municipal property rent, water rate etc., and has no concern whatsoever with the Octroi Department. The respondent also says that as the petitioner's appointment as Octroi Superintendent was illegal, his reversion to his substantive post of Inspector, Octroi, could not be said to be by way of punishment; and that the Standing Committee had the power to decide whether the petitioner's appointment was legal and to revert him and appoint the respondent No. 4 as Octroi Superintendent. It is also maintained by the respondents that the Fundamental Rules for Municipal Employess prescribing qualifications, for appointment to the post of Octroi Superintendent are invalid and have no binding force.

6. It is necessary at the outset to say that the communication which was addressed by the Government to the Municipal Council on 5th September 1962 did not embody any order of the Government that the petitioner should be reverted and that the respondent No. 4 should be appointed as Octroi Superintendent. In only contained a suggestion of the Government to the Municipal Council that the matter of the appointment to the post of Octroi Superintendent should be reviewed by the Municipal Council in the light of the opinion expressed by the Government in that communication. Such being the nature of that communication, the question whether the Government did or did not have the power to give the advice that it did does not really arise for determination. So also the question of the validity of the appointment of the respondent No. 4 as Octroi Superintendent does not arise for consideration in the present petition, and Shri Sen, learned counsel appearing for the petitioner did not rightly urge before us that question. The two questions that call for determination in this case are whether the petitioner's appointment as Octroi Superintendent by the President of the Municipal Council was legal, and whether the Standing Committee had the power to decide the legality of the appointment and revert the petitioner on finding that his appointment by the President was illegal. The material provisions of the Act having a bearing on these two questions are Sub-sections (1) and (3) of Section 55, and Section 48 (a) and (e); and Section 94 (4) and (6) of the Madhya Pradesh Municipalities Act, 1961, which came into force on 1st February 1962 repealing the Bhopal State Municipalities Act, 1956. The relevant provisions of the Bhopal Act run thus :

'55(1) In every Municipality there shall be anExecutive Officer, Health Officer, Engineer, Accounts Officer, and an Assessment or Revenue Officer, who shall be appointed by the Government:

* * * *(3) Subject to any general or special direction which the State Government may from time to time issue, a Board may, by special resolution,determine what servants other than those mentioned in Sub-section (1) are required for the efficient discharge of its duties. All such servantsshall be appointed either by the Board or anyofficer of the Board as determined by the rulesframed by the State Government in this behalf.

* * * *48. The following powers, duties and functions of a Board may be exercised and shall be performedor discharged by the President of the Board andnot otherwise, namely:--

(a) the powers vested in the President to appoint, punish or dismiss servants of the Board;

* * * *(e) all other duties, powers and functions of a Board, with the exception of:

(i) those vested in an Executive Officer by Section 56 and where there is a Medical Officer of Health, by Section 57;

(ii) those specified in the second column of Schedule I; and

(iii) those delegated by the Board under Section 95.'

Sub-sections (4) and (6) of Section 94 of the Madhya Pradesh Municipalities Act, 1961 are as follows :

'94(4) The appointment of Revenue Officer^ Accounts Officer, Sanitary Inspector, Overseer. Revenue Inspector and Accountant shall be subject to confirmation by the State Government and no such post or the post of any other officer as may be specified by the State Government in this behalf shall be created or abolished and no alteration in the emoluments thereof shall be made without the previous approval of the State Government, and every appointment to, and dismissal from, such post, shall be subject to a like approval.

* * * *6. Unless the State Government otherwise directs the power of appoining Municipal officers and servants other than those mentioned in or specified under Sub-section (4) shall vest in the Standing Committee.'

7. At the time when the petitioner was appointed to officiate as Octroi Superintendent and later on when he was confirmed in that post, the Bhopal State Municipalities Act, 1955, was in force. Under Section 55(1) of the Act an Assessment or Revenue Officer in any Municipality could be appointed by the Government only. But an Octroi Superintendent is clearly not an Assessment or Revenue Officer envisaged by Section 55(1). By the expression 'an Assessment or Revenue Officer' used in Section 55 what is meant is an Officer appointed in charge of assessments of all rates, taxes and duties and of all money which the Municipality collects and receives from whatsoever source and in whatever manner. It is true that a person appointed as Octroi Superintendent deals with octroi duties; but he is not entrusted' with the duties and powers of dealing with assessments of all kinds of rates, taxes and duties or with all the income of the Municipality under various heads. If the interpretation which was put by the Government in its communication dated 5th September 1962 on the expression 'Assessment or Revenue Officer' as including an Octroi Superintendent is accepted, then the result is that even an octroi-post nakedar must also be treated as an Assessment or Revenue Officer; and he too also could not be appointed by the Municipal Council but could be appointed only by the Government. Section 55(1) did not clearly contemplate this absurd result. That the Municipal Counsil itself did not regard the post of an Octroi Superintendent as indistinguishable from, the post of an Assessment or a Revenue Officer is clear from the admitted fact that there is already in the Municipal Council a Revenue Officer. The post of a Revenue Officer in the Municipal Council is of a higher cadre and is at present being filled not by the petitioner or the respondent No. 4, but by another person.

8. The post of Octroi Superintendent clearly fell under Section 55(3); and an appointment to that post could be made either by the Municipal Board or any officer of the Board as stated in the rules framed by the State Government in that behalf. It is not the case of any party that the State Government had, by rules framed under Section 55(3), conferred on the President of the Municipal Board the power to make appointments under Sub-section (3). It is thus clear that under Sub-section (3) of Section 55, the post of an Octroi Superintendent could only be filled by the Municipal Board and not by the President. Appointments to the posts falling under Sub-section (3) of Section 55 could not even be made by the Government. The reliance placed in this connection by the opponents on Rule 3(d) of the Rules for the Assessment and Collection of Octroi Duty framed under the Bhopal Municipalities Act, 1916, is altogether misconceived. That rule only gives the definition of 'Superintendent, Octroi' as meaning the Officer appointed by the Board with the sanction of the Government for supervision, assessment and collection of octroi duty imposed by the Municipal Board, It did not confer on the Government any power to appoint an Octroi Superintendent. Even if the rule were to be read as conferring on the Government the power of appointing an Octroi Superintending the rule would be inconsistent with Section 55(3) which expressly says that all municipal servants falling under Sub-section (3) shall be appointed either by the Board or by any officer of the Board as determined by the rules framed by the State Government in that behalf. It is true that under Section 342 of the Act of 1955 the Rules made under the previous Act of 1916 were saved; but they were saved only in so far as they were not consistent with the provisions of the Act of 1955. It is thus plain that the stand taken by the Government in its communication dated 5th September 1962 that the appointment of a person to the post of an Octroi Superintendent 'required' the approval of the State Government was altogether erroneous. In our judgment, the appointment to the post of an Octroi Superintendent was governed by Section 55(3) of the Act and could be made either by the Municipal Board or by any officer of the Board as determined by the rules framed by the State Government in that behalf. It could not be made either by the President or by the Government.

9. Shri Chitale, learned counsel appearing for the respondent No. 4, Anwarul Haque, was not Inclined to dispute seriously the position that an Octroi Superintendent was not an Assessment or a Revenue Officer within the meaning of Section 55(1) and that he was a municipal servant governed by Sub-section (3) of Section 55; and that the appointment to the post of an Octroi Superintendent had 'to, be made by the Board when no rules had been framed by the State Government authorizing any officer of the Board to make the appointment. He however, stressed the point that neither Clause (a) nor Clause (e) of Section 48 of the 1955 Act gave to the President the power to appoint an Octroi Superintendent. It was argued that under Clause (a) the President could exercise only that power of appointment, punishment or dismissal which had been vested in him; that the President had: not been vested with any power to appoint, punish or dismiss an Octroi Superintendent; and that in the face of the express provision contained in Clause (a), the residuary power given to the President by Clause (e) could not be invoked for clothing the President with the power which he did riot possess under Clause (a). It was further said that if the petitioner's appointment was illegal ab initio, then his reversion to the substantive post of Octroi inspector did not amount to any punishment so as to admit challenge to his reversion on the ground of non-compliance with the prescribed rules for taking disciplinary action against municipal servants and for imposing on them punishment of dismissal, removal or reduction in rank; and that Section 94(6) of the Madhya Pradesh Municipalities Act, 1961, which became operative when the impugned resolution was passed by the Standing Committee, gave to the Standing Committee the power to decide the question of the legality of the petitioner's appointment and to revert him on finding that his initial appointment was illegal.

10. In our opinion, this contention must be given effect to. It will be seen from the wording of Clause (a) of Section 48 that the President of the Board was competent to exercise and perform or discharge under that clause only those powers of appointment, punishment or dismissal in regard to municipal servants which had been vested in him. The Act of 1955 did not contain any provision vesting in the President the power to appoint an Octroi Superintendent. The petitioner did not place before us any resolution of the Board conferring on the President the power to appoint punish or dismiss an Octroi Superintendent. Indeed, on behalf of the petitioner the legality of his appointment as Octroi Superintendent by the President was sought to be justified not so much by reference to Clause (a) as by reference to Clause (e) of Section 48. This clause enabled the President to exercise and perform or discharge 'all other duties, powers and functions of the Board' with the exception of those specified in that clause. The words 'all other duties, powers and functions of the Board' used in Clause (e) clearly point to the conclusion that the residuary power could not be exercised by the President in regard to any of the matters and powers enumerated by Clauses (a) to (d). If under Clause (a) the President could exercise in regard to the appointment of municipal servants only those powers which had been vested in him, then clearly ho could not under the residuary power spoken of by Clause (e) make an appointment not covered by Clause (a). In the face of Clause (a), the President's powers to appoint, punish or dismiss municipal servants were confined to those vested in him. He could not claim, under the residuary powers given by Clause (e), the power to appoint any municipal servant.

11. From what has been stated above, it is plain that the President of the Municipal Board had no power under Section 48(3) and (e) to appoint the petitioner to the post of an Octroi Superintendent. As his appointment was not made by the Board as required by Section 55(3) of the Act, it was illegal. If the petitioner's appointment could not be regarded as valid and legal, then his reversion to his substantive post of Octroi Inspector, assuming that it was done by the competent authority, cannot amount to imposition of any punishment on him so as to require compliance of any rules with regard to dismissal, removal or reduction in rank of municipal employees. This is clear from the decision of the Supreme Court in K. S. Srinivasan v. Union of India? AIR 1958 SC 419: 1958 SCR 1295. The appellant K. S. Srinivasan in that case held 'a quasi-permanent post as Public Relations Officer in the All India Radio'. When the number of posts of Public Relations Officers was reduced to one and the remaining solitary post was filled by a permanent incumbent, Srinivasan's services were terminated. But the Government then appointed him to officiate as Assistant Station Director making the declaration that the post of Assistant Station Director offered to Srinivasan was one as held by him with a quasi-permanent status. This declaration was made without consulting the Union Public Service Commission which consultation was a condition precedent according to the Rules. When the Commission objected to the appointment as irregular and invalid, the Government cancelled its order appointing Srinivasan as Assistant Station Director and offered him an alternative inferior appointment as a matter of grace. Srinivasan refused to accept the lower post of Assistant Press Information Officer which was offered to him and later on challenged the validity of the order of the Government terminating his services by filing a petition under Article 226 in the Punjab High Court which was summarily rejected by that High Court. The matter then went to the Supreme Court, The majority of the Supreme Court held that Srinivasan's appointment to the post of Assistant Station Director was itself irregular, unauthorized and invalid; that the Government was right in terminating his services when it discovered its mistake; and that as his appointment was illegal, he was not entitled to any legal right and the termination of his appointment could not, therefore, be said to be an act of punishment. The decision of the Supreme Court in Srinivasan's Case, AIR 1958 SC 419: 1958 SCR 1295 (supra) is an authority for the proposition that if a man's appointment to a post is itself irregular, unauthorized and invalid, the termination of such appointment on discovery of mistake in the appointment cannot be said to be an act of punishment.

12. To the same effect is the decision of a Division Bench of the Allahabad High Court in G.K. Sinha v. Collector, Central Excise, (S) AIR 1957 All 152. In this case it was held that where a Government servant, who had been promoted to the selection grade, was later on demoted to his original post, not for any fault of his but because of non-compliance of rules relating to the appointments to the selection grade, there was no 'reduction in rank' within the meaning of Article 311 and the Government servant was not entitled to any opportunity of showing cause under Article 311 against the proposal to revert him. In Vishweshwar v. Chairmans State Transport Authority, M.P., AIR 1955 Nag 163 also it has been observed that the safeguard provided in Article 311 applies to cases where the appointment is validly made.

13. To the question whether the Standing Committee of the Municipal Council was competent to decide the legality of the petitioner's appointment and revert him on finding that he had not been validly appointed, Section 96(6) of the M. P. Municipalities Act, 1961, furnishes a clear answer. The resolution reverting the petitioner was passed by the Standing Committee on 4th April 1963, that is to say, after the 1961 Act came into force. For the reasons which we have already given while construing the term 'Assessment or Revenue Officer' occurring in Section 55(1), it must be held that an Octori Superintendent is not a Revenue Officer for the purposes of Sub-sections (1) and (4) of Section 94 of the 1961 Act. Under Sub-section (4) of Section 94, the appointment of a Revenue Officer, Accounts Officer, Sanitary Inspector, Overseer, Revenue Inspector and Accountant and the appointment to any other post specified by the State Government can be made only with the approval of the State Government. The post of an Octroi Superintendent does not fall under any of these categories. Now, under Sub-section (6), unless the State Government otherwise directs, the appointment of municipal officers and servants other than those mentioned or specified in Sub-section (4) can be made by the Standing Committee. The petitioner did not urge before us that the Government had made an otherwise direction under Sub-section (6). If, then, the Standing Committee had the power of appointing an Octroi Superintendent, then it has also the power to decide whether the appointment of a certain person to the post was valid or invalid and to revert the person to his substantive post on finding that his promotion to the post of Octroi Superintendent was illegal.

14. For all these reasons, our conclusion is that the petitioner's initial appointment to the post of Octroi Superintendent by the President of the Municipal Board was illegal and invalid and he had no right to that post; that the Standing Committee had the power under Section 94(6) of the M, P. Municipalities Act, 1961, to determine the legality of his appointment and to revert Mm to his substantive rank on finding that his initial appointment as Octroi Superintendent was illegal; and that the petitioner's reduction in these circumstances did not in any way constitute an act of punishment on him. The result is that this petition is dismissed. In the circumstances of the case, we make no order as to costs. The outstanding amount of the security deposit shall be refunded to the petitioner.


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