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Akhtar Mirza Vs. Commissioner of Wakfs and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1971)IILLJ439Cal
AppellantAkhtar Mirza
RespondentCommissioner of Wakfs and ors.
Cases ReferredBaidya Nath Bose v. Sudha Roy
Excerpt:
- .....4, 1962, a resolution was passed creating the post of a record keeper, carrying the salary of an upper division clerk, on the scale of rs. 130-5-180. the board also authorised the respondent no. 1 to appoint the appellant to the newly created post. on march 11, 1963, the appellant asked for permission to draw the pay of the record keeper on the scale of an upper division clerk. the commissioner of wakfs made a note on the appellant's application as follows:he may be allowed to draw according to revised scale as prayed for with retrospective effect from 1st june, 1962.2. on september 16, 1963 the deputy commissioner of wakfs (respondent no. 3) wrote to the judicial department of the government of west bengal that an appointment had been made to the post of record keeper with effect from.....
Judgment:

B.C. Mitra, J.

1. The appellant held the post of a lower division clerk in the office of the Commissioner of Wakfs (respondent No. 1). At a meeting of the Board of Wakfs held on April 4, 1962, a resolution was passed creating the post of a record keeper, carrying the salary of an upper division clerk, on the scale of Rs. 130-5-180. The Board also authorised the respondent No. 1 to appoint the appellant to the newly created post. On March 11, 1963, the appellant asked for permission to draw the pay of the record keeper on the scale of an upper division clerk. The Commissioner of Wakfs made a note on the appellant's application as follows:

He may be allowed to draw according to revised scale as prayed for with retrospective effect from 1st June, 1962.

2. On September 16, 1963 the Deputy Commissioner of Wakfs (respondent No. 3) wrote to the Judicial Department of the Government of West Bengal that an appointment had been made to the post of record keeper with effect from June 1, 1962, in anticipation of Government's sanction. The State Government was requested to grant such sanction.

3. By a letter dated December 11, 1964, the Joint Secretary to the Government of West Bengal, Judicial Department, informed the respondent No. 1 that the creation of the post of record keeper, and the appointment of the appellant to that post were illegal, and that the Board had no authority to create such a post, as the Government never sanctioned the creation of the post. It was also stated that unless previous sanction to the creation of the post was accorded, appointment to the post created by the Board would be illegal as that would be contrary to the provisions of Section 23 of the Bengal Wakf Act, 1934. The letter further directed the respondent No. 1 to revert the appellant to his original post of lower division clerk, and to recover from his salary as a lower division clerk, over-payments made to him as an upper division clerk, month by month, until over-payment made was fully adjusted. This letter was followed by a memorandum from the respondent No. 1 to the appellant dated January 12, 1965 in which it was stated that the appellant was reverted to his original post of a lower division assistant in accordance with the directions of the Government. It was also stated that payments made to him as an upper division clerk should be recovered from his pay as lower division clerk, until over-payments were adjusted. Aggrieved by this order of the respondent No. 1, the appellant challenged the order of the respondent No. 1, communicated to him by the memorandum of January 12, 1965, and obtained a rule nisi. This rule was discharged by a judgment and order dated December 4, 1969. This appeal is directed against this order.

4. The questions that arise in this appeal are firstly, whether the creation of the post of record keeper carrying the salary of an upper division clerk, without the previous sanction of the State Government, as prescribed by Section 23 of the Act is invalid. Secondly, whether the appointment of the appellant to the post of record keeper and payment of salary to him of an upper division clerk can be upheld. Section 23 of the Act is as follows:

The Board, with the previous sanction of the State Government, may from time to time determine the number, designations and grades of the officers and servants (other than employees who are paid by the day) whom the Board considers it necessary to employ for the purposes of this Act and the amount and nature of the salary, fees and allowances to be paid to each such officer and servant.

5. This section clearly requires that previous sanction of the State Government must be obtained for determining the number, the designation, and grades of officers and servants of the Board. It is therefore clear that respondent No. 2 purported to create the office of the record keeper carrying the salary of an upper division clerk in violation of the statutory provisions.

6. Counsel for the appellant contended that Section 23 of the Act did not require that Government's sanction should be obtained for the creation of each individual post, but that what was required was that such sanction should be obtained by the respondent No. 2 periodically, whenever a number of posts or offices were created. The second contention of counsel for the appellant was that under Section 24 of the Act the power of appointment and promotion was vested in the respondent No. 1, who, in exercise of such power, had given a promotion to the appellant from the post of lower division clerk to the post of an upper division clerk, the designation of which was fixed by the Board by its resolution mentioned above, as 'Record Keeper'. Promotion so granted, it was argued, could not be questioned by the State Government nor could the State Government direct the Board to revert the appellant to the post of a lower division assistant and recover moneys paid to the appellant in the scale of an upper division clerk.

7. In support of this contention learned Counsel for the appellant relied on a decision of the Supreme Court, Mulam Chand v. State of Madhya Pradesh : [1968]3SCR214 . In that case it was held that the provisions of Section 175(3) of the Government of India Act, 1935, and the corresponding provisions in Article 299(1) of the Constitution were mandatory in character and contravention of these provisions nullified the contracts and made them void. It was also held that in that case the appellant would have been entitled to compensation under Section 70 of the Indian Contract Act, if he had adduced evidence in support of his claim, but since no such evidence was adduced, the appellant was not entitled to any compensation. We do not see how this case is of any assistance to the appellant in this case. The next case relied on by counsel for the appellant was a Bench decision of this Court reported in Commissioner of Wakfs v. Hasrat Syed Shah (1955) 59 Cal. W.N. 436. That decision was relied on in support of the contention that the words 'may from time to time determine' in Section 23 of the Bengal Wakf Act, 1934, did not require a determination by the State Government in the case of every single appointment or promotion. In that case the words 'from time to time' used in Section 29 of the Act came up for consideration and the Court came to the conclusion that those words did not entail the consequence that the Board could delegate its function only by making a separate order in respect of each individual wakf when occasion arose and that no general delegation could be made. We do not think that this decision supports the contention of counsel for the appellant in this appeal. Besides the interpretation of the words 'may from time to time' must be made in the context in which they have been used in Section 23 of the Act, namely that the determination is to be made by the Board, subject to a condition precedent namely, the previous sanction of the State Government.

8. The next contention on behalf of the appellant was that even if it was held that the appointment of the appellant to the post of the record keeper in the grade of an upper division clerk was invalid by reason of non-compliance with the requirement of Section 23 of the Act, there could be no recovery of the amounts already paid to the appellant in the scale of an upper division clerk, and adjustment of the same with the appellant's pay as a lower division clerk. It was argued that the appellant had rendered services to the respondent No. 2 as a record keeper and the salary was paid to him for services so rendered, and, therefore, an order of recovery of payment already made for services rendered could not be made.

9. We are unable to accept either of the two contentions advanced on behalf of the appellant. It is clear to us that previous sanction of the State Government was not obtained by the respondent No. 2 in creating the post of a record keeper 'in the grade of an upper division clerk. The words 'previous sanction1 in Section 23 of the Act make it plain, that the grant of the State Government's sanction is a mandatory statutory requirement and that without such sanction, the number, designations and grades of officers and servants could not be determined by the Board of Wakfs. The previous sanction of the State Government is a condition precedent to the creation of a new post with a fresh designation and also to an appointment to that post. The requirement of the section is mandatory and not merely directory so as to be ignored or overlooked or so as to make non-compliance with the requirement a mere irregularity which may be cured by ratification.

10. In this case not only the question of designation of a servant but the question of his grade also is involved. A new post having the designation of 'Record Keeper' was purported to be created with the grade of an upper division assistant. It is not a case of mere promotion of the appellant to a post which was already created with the sanction of the State Government. The post in question was not in existence and was created by the respondent No. 2 at its meeting held on April 4, 1962. This proposal of the respondent No. 2 should not have been given effect to until sanction of the Government was obtained; but before such sanction was obtained the appellant was appointed to the post, and he was allowed to draw the salary of an upper division clerk, as if the post had been duly created with the prior sanction of the State Government. The letter from the State Government dated December 11, 1964, to which I have adverted earlier, makes it plain that Government's sanction was not given. Therefore, it is clear that the creation of the post itself and the appointment of the appellant to that post are invalid and the appellant was not entitled to draw the salary of an upper division clerk. The resolution of the respondent No. 2 to create the post of a record keeper carrying the salary of an upper division clerk would have remained a mere proposal if it was not acted upon, but the proposal was not a mere proposal, as it was given effect to and acted upon by the appointment of the appellant to that post, and by allowing him to draw the salary of an upper division clerk. In our view it was entirely beyond the jurisdiction of the respondent No. 1 to appoint the appellant to the post of record keeper and allow him to draw the salary of an upper division clerk without the sanction of the State Government.

11. The second contention of counsel for the appellant mentioned above is also equally without merit. It is true that Section 24 of the Act empowers the Commissioner to make an appointment and grant promotion to officers and servants of the Board. But such appointments and promotions can only be made with regard to posts which are legally in existence. If a post is not in existence in the eye of law, as it has not been created according to the statutory requirement, a promotion to such a post by the respondent No. 1 must be held to be invalid. The power conferred upon the respondent No. 1 by Section 24 of the Act does not by any means enable him to grant promotion to posts, which have not been duly created according to the mandatory statutory requirement.

12. The argument of counsel for the appellant with regard to the order of the State Government for recovery of moneys paid to the appellant in excess must also fail. As the appellant was appointed to the post carrying a higher salary, which post was not legally in existence, he cannot be allowed to retain the benefit which he had obtained by the invalid appointment or promotion. As the post of the record keeper in the grade of an upper division clerk was not in existence in the eye of law and the payment of salary to him of an upper division clerk was not lawfully made, we cannot say that the direction of State Government upon the respondent No. 1 to recover the excess payment made to the appellant had been given in contravention of law.

13. The next contention of counsel for the appellant was that provisions of Section 23 of the Act, namely, that the Board with the previous sanction of the State Government may from time to time determine the number, grade and designation of officers and servants is merely directory in nature and not mandatory. It was argued that the requirement as to previous sanction of the State Government, not being a mandatory provision, non-compliance with the requirement would not make the appellant's appointment invalid. In support of this contention reliance was placed on a decision of the Supreme Court in L. Hazari Mal Kuthiala v. The Income-tax Officer, Special Circle : [1961]41ITR12(SC) . In that case the question was whether failure of the Commissioner of Income-tax to consult the Central Board of Revenue under the Indian Finance Act, 1950 in transferring the assessment proceedings from one Income-tax Officer to another and in directing reassessment proceedings under Section 34 of the Patiala Income-tax Act was invalid. The question considered by the Court was requirement of consultation before performance of a public duty and it was held that failure to consult the Central Board of Revenue did not destroy the effectiveness of the order passed by the Commissioner, however wrong it might be from the administrative point of view. We do not think that this decision is of any assistance to the appellant in support of the contention that the provisions in Section 23 of the Act are not mandatory but directory in character. The question in that case was one of consultation by the Commissioner of Income-tax with the Board of Revenue, but what we are concerned with in this case is the provision in Section 23 of the Act which requires that the Board of Wakfs may determine the number, grade and designation of officers with the previous sanction of the State Government. The section did not enjoin mere consultation by the Board with the State Government but contains a mandatory directive that the Board may do certain things with the previous sanction of the State Government. Reliance was next placed by the counsel for the appellant on a decision of the Federal Court in Biswanath Khemka v. Emperor A.I.R. 1945 F.C. 67. That decision again is concerned with the provisions for consultation in Section 256 of the Government of India Act, 1935 and we do not think it throws any light on the question with which we are concerned in this appeal. Reliance was next placed on a decision of this Court in Baidya Nath Bose v. Sudha Roy (1966) 70 Cal. W.N. 571. In that case my Lord was dealing with an appeal arising out of a suit filed by the Head Mistress of a school for a declaration that she was a teacher in a school and that the order of dismissal was ultra vires, illegal and void.

14. The Rule 25 of the rules of management of non-Government High Schools requires that in case of aided schools, the committee's power of appointment and removal of teachers as also of granting promotion and increment shall be exercised subject to the approval of the Board of Secondary Education which should consider the recommendations of the Director of Public Instruction before granting approval in the matter. The service of the Head Mistress was terminated by letter but no approval of the Board of Secondary Education was obtained as required by Rule 25. It was held that the Managing Committee of the school could remove a teacher only subject to the approval of the Board of Secondary Education under Rule 25 and that such approval not having been obtained, the removal would not be complete unless such approval was given. Quite apart from the fact that it was an appeal arising out of a suit, the decision, to our mind, is entirely against the contention of the appellant as it was held that the order of removal would not become an effective order until approval, as contemplated under Rule 25, was obtained.

15. As we have indicated earlier the requirement of previous sanction of the State Government under Section 23 of the Act is a condition precedent to the Board's determination of the number, grade and designation of officers and servants of the Board of Wakfs and the requirement of such previous sanction is mandatory in nature and not merely directory. The contention of learned Counsel for the appellant on this point therefore fails and is rejected.

16. It seems to us, however, that there is another formidable obstacle to the grant of any relief to the appellant. The appellant asked for a writ of mandamus commanding the respondents to rescind and/or to withdraw the order as to demotion and recovery of salary contained in the memo, dated 12-1-65 and also not to give effect to and act upon the direction or order/instruction as contained in the letter of Sri K.C. Roy which is annexure 'B' to the petition. The appellant, therefore, asked for an order not to give effect to the order of the State Government dated December 11, 1964. But the State Government has not been made a party in the writ petition. There can hardly be any doubt that an order cannot be made by this Court not to give effect to the order of the State Government dated December 11, 1964, unless the State Government is a party to the application and has been heard. Faced with this difficulty, learned Counsel for the appellant submitted that his client would be content with an order for rescission or withdrawal of the memorandum from the Deputy Commissioner of Wakfs dated January 12, 1965, But this prayer cannot be acceded to because if an order is made directing rescission of the memorandum dated January 12, 1965, such an order would not be effective inasmuch as the State Government's order dated December 11, 1964, would still remain in force and binding upon the Commissioner of Wakfs and therefore such a relief, if granted, to the appellant would by no means be complete and effectual. As the order of the State Government would remain in force, the respondent No. 1 would be bound to make another order reverting the appellant to the post of lower division clerk and directing recovery of over-payments made to him, even if this Court directs rescission and withdrawal of the order contained in the memorandum dated January 12, 1965. This Court will not make an order which would be ineffective and incomplete. In the absence of the State Government, therefore, no relief whatsoever can be granted to the appellant. In our view, no ground had been made out for interfering with the judgment and order made by the Court below.

17. For the reasons mentioned above, this appeal fails and is accordingly dismissed. There will be no order as to costs.

P.B. Mukharjee, C. J.

18. I agree.


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