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Sudhir Kumar Mishra and ors. Vs. Municipal Corporation, Jabalpur and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 1150 of 1974
Judge
Reported inAIR1978MP65; 1978MPLJ9
ActsMadhya Pradesh Municipal Corporation Act, 1956 - Sections 58(1)
AppellantSudhir Kumar Mishra and ors.
RespondentMunicipal Corporation, Jabalpur and anr.
Appellant AdvocateGulab Gupta and ;S.K. Mukherjee, Advs.
Respondent AdvocateM. Mukherjee, Adv. (for No. 1) and ;Y.S. Dharmadhikari and ;Rajendra Tiwari, Advs. (for No. 2)
Cases ReferredAimer v. State of Rajasthan
Excerpt:
- - on the other hand, the latter division bench deciding panda's case (1966 mplj 426) (supra) took the view that the failure to consult the state public service commission in making such an appointment did not render the appointment invalid, the status of the state public service commission being merely advisory. the scheme clearly is that all such appointments requiring consultation with the commission can be made by the corporation only if the state public service 'commission and the corporation are of the same opinion......1966 mplj 426. the question for decision is whether the requirement of consultation with the state public service commission laid down by the second proviso to sub-section (1) of section 58 of the m. p. municipal corporation act, 1956, is mandatory, so that an appointment purporting to be made in accordance with the power given by sub-section (1) of section 58 without any such consultation is invalid. this question arises in the context of the validity of appointment of respondent no. 2 s. k. chaudhary as city engineer of the municipal corporation. jabalpur.2. the earlier division bench deciding dandekar's case (air 1963 madh pra 17) (supra) held that this requirement of consultation with the state public service commission is mandatory and such an appointment made by the.....
Judgment:

Verma, J.

1. This reference has been made to resolve the conflict between two Division Bench decisions of this Court reported in Narayan Keshav Dandekar v. Rule C. Rathi, AIR 1963 Madh Pra 17: 1963 MPLT 709 and Ras Bihari Pande v. Municipal Corporation, Jabalpur, 1966 MPLJ 426. The question for decision is whether the requirement of consultation with the State Public Service Commission laid down by the second proviso to Sub-section (1) of Section 58 of the M. P. Municipal Corporation Act, 1956, is mandatory, so that an appointment purporting to be made in accordance with the power given by Sub-section (1) of Section 58 without any such consultation is invalid. This question arises in the context of the validity of appointment of respondent No. 2 S. K. Chaudhary as City Engineer of the Municipal Corporation. Jabalpur.

2. The earlier Division Bench deciding Dandekar's case (AIR 1963 Madh Pra 17) (supra) held that this requirement of consultation with the State Public Service Commission is mandatory and such an appointment made by the Corporation without consultation with the Commission was invalid. On the other hand, the latter Division Bench deciding Panda's case (1966 MPLJ 426) (supra) took the view that the failure to consult the State Public Service Commission in making such an appointment did not render the appointment invalid, the status of the State Public Service Commission being merely advisory. It may be mentioned that no reference is made to Bandekar's case in this latter decision which means that the earlier Division Bench decision in Dandekar'scase was apparently not brought to the notice of the subsequent Division Bench. This is how the conflict arises which we are called upon to resolve.

3. Section 58 of the M. P. Municipal Corporation Act, 1956, reads as under:--

'58. Appointment and salary of City Engineer, etc.

(1) Subject to the provisions of this Act the Corporation shall appoint a City Engineer, a Health Officer, a Revenue Officer, a Municipal Secretary and a Municipal Accountant and may appoint a Deputy Municipal Commissioner and such other officers and servants as are necessary for the efficient carrying out of the purposes of this Act and may assign to them such duties and pay them such salaries and allowances, pensions and gratuities and make on their behalf such payments to the provident or annuity funds as the Corporation may determine by bye-laws made in this behalf under Section 427:Provided that:--

(1) the power of appointing any person on a municipal post which carries a maximum monthly salary exceeding 150 rupees shall vest in the Standing Committee;

(2) the power of appointing any person on a municipal post which carries a maximum monthly salary not exceeding 150 rupees shall vest in the Commissioner,

(3) any appointment made within his power by the Commissioner shall be reported for its information to the Standing Committee:

Provided further that the appointment to be made by the Standing Committee shall be so made in consultation with State Public Service Commission in the manner prescribed:

Provided also that in case of any difference of opinion between the Standing Committee and the State Public Service Commission, the matter shall be laid before the Corporation. If the Corporation agrees with the State Public Service Commission, the appointment shall be made accordingly. In other cases, a reference shall be made by the Corporation to the Government whose decision shall be final. (2) Notwithstanding anything contained in Sub-section (1), the Standing Committee may make appointments for a period not exceeding six months without consultation with the State Public Service Commission.'

4. Sub-section (2) of Section 58 enables the making of appointment for a period not exceeding six months without consultation with the State Public Service Commission. Obviously, these are intended to be temporary appointments. Sub-section (1) provides for the general power of appointment and specifies some particular officers include in that category. The first proviso lays down the authority in the Corporation competent to make the appointments of the several categories of officers. The second proviso then requires that the appointments which are to be made by the Standing Committee, i. e. according to Clause (1) of the first proviso, are to be made in consultation with the State Public Service Commission in the manner prescribed. The third proviso further lays down that in case of difference of opinion between the Standing Committee and the State Public Service Commission, the matter shall be considered afresh by the Corporation obviously in the light of the Commission's opinion. If the Corporation agrees with the opinion of the State Public Service Commission, the appointment will be made accordingly. In other cases where there is no such agreement by the Corporation with the opinion of the State Public Service Commission, a reference shall be made by the Corporation to the Government whose decision thereon shall be final. The scheme clearly is that all such appointments requiring consultation with the Commission can be made by the Corporation only if the State Public Service 'Commission and the Corporation are of the same opinion. In other cases where the Corporation does not agree with the opinion of the State Public Service Commission, the Corporation isbound to refer the matter to the State Government whose decision is final. In short where there is no agreement between the Corporation and the State Public Service Commission, the Corporation is given no option except to refer the matter to the State Government and await its decision since no power is given to the Corporation to ignore the opinion of the State Public Service Commission. It is obvious that the power to overrule the Public Service Commission is given to the. Government and not to the Corporation. As earlier stated, Sub-section (2) enables only temporary appointments not exceeding six months being made without such consultation with the State Service Commission, the reason for which is obvious,

5. In our opinion, the decision in Prakash Chand Maheshwari v. Zila Parishad. Muzaffarnagar, AIR 1971 SC 1696 leaves no room for any controversy on this point. In that case, the Supreme Court was called upon to decide a similar point with reference to Section 43 of the U. P, Kshettra Samitis and Zila Parishads Adhiniyam (33 of 1961) which obviously was in pari materia with Section 58 of the M. P. Municipal Corporation Act, with which we are concerned. Under that provision, the appointment of a Kar Adhikari had to be made in consultation with the State Public Service Commission and in case of a difference of opinion between the Commission and the Parishad the matter was to be referred to the State Government whose decision was to be final. The Kar Adhikari not having been so appointed in consultation with the State Public Service Commission, the appointment was held to be invalid. Their Lordships summarised the position as follows:

'The last point raised by the petitioners relates to the appointment of the Kar Adhikari on the ground that it was not done in consultation with either Public Service Commission of the State or any other Commission or body appointed in that behalf by the State Government under Section 43 of the U. P. Kshettra Samithis and Zila Parishads Adhiniyam, 1961, i. e. U P. Act XXXIII of 1961. The appointment of respondent No. 2 in this case took place on 8th Aug. 1965; the impugned assessment was made on 8th March 1968 i. e, more than two years after the date of appointment. Under Section 43 the appointment of this officer to the post which carried an initial salary of more than Rs. 200 p. m. could be made by the Parishad in consultation with the Public Service Commission or other Commission or selection body as might be constituted by the State Government and if there was a difference of opinion between the Commission and the Parishad the matter was to be referred to the State Government whose decision was to be final. Counsel for the respondents on the materials before this Court was only in a position to inform us that the State Public Service Commission had been notified of the appointment and they had not expressed any disapproval of the same. We do not think that this was sufficient compliance with Section 43. .....'

'Appointing respondent No. 2 as Kar Adhikari and merely sending the papers relating to such appointr ment to the Public Service Commission would not therefore be in compliance with Section 43 of the Act-Even if it be regarded as a temporary appointment, it could only be effective for two years and as the assessment in this case was made beyond that date it must be held that the assessment was by a person not competent to make it.'

6. The above decision of the Supreme Court concludes the point and it is obvious that there is no room for contending any longer that the provision requiring consultation with the State Public Service Commission as required by the second proviso to Sub-section (1) of Section 58 of the M. P. Municipal Corporation Act, 1956 is not mandatory. It necessarily follows that an appointment made without any such consultation with the commission where the same is mandatory, renders the appointment invalid. In the face of the above Supreme Court decision, Shri Y. S. Dharmadhikariappearing for the respondent No. 2 did not question the correctness of this conclusion. It also follows that the decision in Ras Bihari Pande v. Municipal Corporation, Jabalpur 1966 MPLJ 426 on this point as contained in paragraph 6 cannot be considered as correct and the View of the earlier Division Bench on this point in Narayan Keshav Dandekar v. R.C. Rathi, AIR 1963 Madh Pra 17 must be upheld.

7. Shri Mukerji appearing on behalf of respondent No. 1 Municipal Corporation, argued that no rules prescribing the mode of consultation with the State Public Service Commission having been framed, the second and third provisos to Sub-section (1) of Section 58 have not yet come into operation. It is not possible to accept this contention. The provision for consultation so made in Section 58 (1) is complete in itself and capable of operation without the aid of any further rules to bridge the gap. For this reason, there is no need or room to take the view that unless rules are framed specifying the details of the mode of consultation till then this provision cannot operate. The words 'in the manner prescribed' occurring in the second proviso only mean that if and when rules are framed laying down the details of procedure for consultation, they will be followed. Till then the consultation with the Commission will be made in a reasonable manner thought fit by the Corporation, Nothing more was required to be prescribed by the law when it laid down the need of consultation with the Commission as a necessary requirement of a valid appointment under Section 58 (1). It is not shown to us as to how the consultation with the State Public Service Commission cannot be made without rules being framed regulating the details of procedure and what is that thing, if any, that remains to be laid down to enable an effective consultation with the Commission.

8. We are fortified in this view which we are taking by the decision in Dargah Committee, Aimer v. State of Rajasthan, AIR 1962 SC 574. It was argued before the Supreme Court that the proceedings under Section 234 of the Ajmer Merwara Municipalities Regulation (6 of 1925) for recovery of dues was incompetent because a demand had not been made 'in the manner prescribed.' In other words the argument was that unless rules are framed and the form of notice is prescribed for making a demand under Section 222 (1), no demand could be said to have been made 'in the manner prescribed' by the rules, and an application under Section 234 was incompetent. This argument was , rejected by the Supreme Court and it was held as follows:--

'If the rules are not prescribed then all that can be said is that there is no form prescribed for issuing a demand notice; that does not mean that the statutory power conferred on the Committee by Section 222 (1) to make a demand is unenforceable.' .....

'That is the plain effect of the relevant provision of the Regulation, and so, an amount which was claimable by virtue of Section 222 (1) does not cease to be claimable just because rules have not been framed prescribing the form of making the said demand. In our opinion, the contention that the application made under Section 234 was incompetent must be rejected.'

There is, thus, no reason to construe the expression 'in the manner prescribed' in the present context to mean that framing of rules is a condition precedent to operation of the provision. We have noticed this argument simply because the point was urged by Shri Mukerji with great conviction about its correctness.

9. We are, therefore, of the opinion that the view taken by the Division Bench deciding Narayan Keshav Dandekar's case (AIR 1963 Madh Pra 17) (supra) on this point is correct. It must be said with great respect that Ras Bihari Pande's case (1966 MPLJ 426) (supra) was not correctly decided on this point. The reference is answered accordingly. The case shall now go back tothe Division Bench for decision of the petition on merits.


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