Shridhar Son of Ram Dular Vs. Nagar Palika, Jaunpur & Ors.
EmailAppeal: Civil Appeal No. 2967 Of 1986
Petitioner: Shridhar Son of Ram Dular
Respondent: Nagar Palika, Jaunpur & Ors.
Apeal: Civil Appeal No. 2967 Of 1986
Judges: K.N. SINGH & N.M. KASLIWAL, JJ.
Date of Judgment: Nov 17, 1989
Head Note:
ADMINISTRATIVE LAW
Natural justice – Appointment of appellant set aside without giving any opportunity of hearing – Voilation of principles of natural justice – Order setting aside the appointment held not sustainable in law.
Held:
The High Court committed serious error in upholding the order of the Government dated 13.2.80 in setting aside the appellant’s appointment without giving any notice or opportunity to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner’s Order had been passed without affording any opportunity of hearing to the appellant therefore the order was illegal and void. The High Court committed serious error in upholding the Commissioner’s Order setting aside the appellant’s appointment. In this view, Orders of the High Court and the Commissioner are not sustainable in law. (Para 8)
Cases Reffered:
1. Inder Bahadur v. Municipal Board, Mirzapur and others, Writ Petition No. 235 of 1970 dt. 20.10.72. (Allahabad) – Approved.
2. Ram Kripal Garg v. State of U.P. Writ Petition No. 4656 of 1965 Dt. 16.9.66. (Allahabad) – Approved.
3. Ramesher Prasad and other v. Municipal Board, Pilibit. AIR 1958 Alld. 363 – Approved.
2. Ram Kripal Garg v. State of U.P. Writ Petition No. 4656 of 1965 Dt. 16.9.66. (Allahabad) – Approved.
3. Ramesher Prasad and other v. Municipal Board, Pilibit. AIR 1958 Alld. 363 – Approved.
JUDGEMENT:
SINGH, J.:
1. This appeal is directed against the judgment and order of the High Court of Allahabad dated July 28, 1986 dismissing the appellant’s petition under Article 226 of the Constitution challenging the order of the Commissioner Varanasi Division dated February 13, 1980 setting aside the order of Municipal Board, Jaunpur appointing the appellant as Tax Inspector.
2. The Municipal Board, Jaunpur issued advertisement inviting applications for appointment to the post of Tax Inspector. The advertisement stated that the existing employees of the Revenue Department of the Municipal Board were eligible for consideration along with outsiders. Hari Mohan Respondent No.3 who was the senior most Tax Collector working in the Municipal Board, Jaunpur was called for interview but he refused to appear for the interview on the plea that the post of Tax Inspector should have been exclusively filled by promotion and as he was the senior most Tax Collector he should be promoted without considering any outsider. The Municipal Board ignored, his claim and selected the appellant, and appointed him to the post of the Tax Inspector by the order dated 11.3.78. Respondent No.3 therefore filed a claim petition before the Services Tribunals Act, 1976 but subsequently he withdrew the same on 23.12.79. Thereafter he filed a representation to the Prescribed Authority i.e. the Commissioner Varanasi challenging appellant’s appointment to the post of Tax Inspector. The Commissioner by his order dated 13.2.80 set aside the order of the Municipal Board and cancelled the appellant’s appointment on the ground that the Respondent No.3 was entitled to promotion in pursuance to the directions contained in the Government Order dated 10.4.50. The appellant filed a writ petition under Article 226 of the Constitution before the High Court challenging the order of the Commissioner. A learned Single Judge (B.D.Agarwal, J.) of the High Court of Allahabad dismissed the writ petition and affirmed the order of the Commissioner on the findings that the appellant’s appointment was made in violation of the Government Order dated 10.4.50. Hence this appeal.
3. After hearing learned counsel for the parties at length we are of the opinion that the High Court committed manifest error in upholding the order of the Commissioner. The basic question which arises for consideration is whether the post of Tax Inspector, under the provision of the U.P. Municipalities Act, 1916 (hereinafter referred to as the ‘Act’) or any rules framed thereunder or under the Government Order dated 10.4.1950 the post of Tax Inspector was required to be filled by promotion only and not by direct recruitment. The Prescribed Authority i.e., the Commissioner as well as the High Court both proceeded on the assumption that the Government Order dated 10.4.50 had been issued by the State Government in exercise of its supervisory powers under s.71 of the Act and as such it was binding on the Municipal Board, and the directions contained therein required the Municipal Board to fill up the post of Tax Inspector exclusively by promotion and not by direct recruitment. In making the appellant’s appointment as a direct recruit, the Municipal Board in violation of the directions contained in the aforesaid Government Order, therefore, the appellant’s appointment was rendered illegal. The High Court upheld the order of the Prescribed Authority on these findings. Learned counsel for the appellant urged that the directions contained in the Government Order dated 10.4.50 were ultra vires the State Government’s powers under s. 71 of the Act. He placed reliance on Ramesher Prasad and other v. Municipal Board, Pilibit, AIR 1958 Alld. 363. The learned counsel further urged that the aforesaid decision was approved by two other learned judges of the High Court in Ram Kripal Garg v. State of U.P. Writ Petition No. 4656 of 1965 dt. 16.9.66 and Inder Bahadur v. Municipal Board, Mirzapur and others Writ petition No. 235 of 1970 dt. 20.10.72 holding that the Government Order dated 10.4.50 was ultra vires. These decisions were placed before the learned Single Judge but he did not agree with the view taken in the aforesaid decisions instead he took a contrary view in holding that the Government Order dated 10.4.50 was valid and it required the Municipal Board to fill up the post of Tax Inspector only by promotion. It is well settled principle of judicial discipline as has been reiterated in a number of decisions of this Court that if a Single Judge, disagrees with the decision of another Single Judge, it is proper to refer the matter to a larger Bench for an authoritative decision. But in the instant case the learned Judge acted contrary to the well established principles of judicial discipline in ignoring those decisions.
4. Section 71 of the Act before its amendment in 1964 did not confer power on the State Government to issue any direction regulating the conditions of service of Municipal employees. The view taken by the High Court in Ramesher Prasad case and followed in other two cases, is correct. The High Court placed reliance on the Government Orders dated 27.4.57, 9.12.59 and 30.1.72 in holding that the directions contained in Government Order dated 10.4.50 were binding on the Municipal Board. We have gone through the aforesaid Government Orders and Notifications but we find nothing therein to clothe the Government Order dated 10.4.50 with statutory character. A Government Order declared ultra vires by High Court could not be revived by any subsequent Government Order without there being any statutory power for the same. Moreover the aforesaid Government Orders and Notifications do not contain any direction requiring the Municipal Board to fill up the post of Tax Inspector exclusively by promotion. The High Court committed error in upholding the Commissioner’s order.
5. We have closely scrutinised the Government Order dated 10.4.50 (Annexure 1 to the petition) with the assistance of the counsel for the parties. But even after conceding supervisory power to the State Government to issue direction laying down conditions of service of Municipal employees, we do not find any directions therein requiring a Municipal Board to fill the post of Tax Inspector only by promotion and not by direct recruitment. Learned counsel for the respondent placed reliance on paragraphs 5 and 6 of the Government Order in support of his contention that the post of Tax Inspector was required to be filled by promotion only. Paragraphs 5 and 6 of the Government Order read as under:
5.- In the case of the posts mentioned in the annexure promotions should, as a rule, be made from the lower to the higher posts or grades, as the case may be, in the same class of Services Subject to the general orders contained in the above paragraphs. The prevailing practice of transferring at random officials in one class of service to another should be stopped.
6.- When direct recruitment to any post specified in the annexure had to be made it will be governed by the educational qualifications shown therein. Recruitments to posts from outside should, however, as far as possible be made by inviting applications through advertisement in the press and making a selection therefrom preferably by means of a competitive test. Local Bodies may also be advised to form a Committee consisting of the Chairman or the President, the Executive Officer or the Secretary, as the case may be, and the principal administrative officer of the department concerned, to make a selection from among the applicants for a vacant post by interviewing them after a competitive test. The actual appointment will, however, be made by the competent authority.”
6. In order to ascertain the correct scope of the aforesaid paragraphs it is necessary to refer to the entire content of the Order. It appears that the U.P. Pay Committee made certain recommendations prescribing minimum qualification in respect of employees of local Bodies. The State Government accepted the recommendations of the Pay Committee by its Resolution dated March 29, 1949 and in pursuance thereof it issued the Government Order dated 10.4.50 prescribing minimum qualifications for the employees of Local Bodies mentioned in the Schedule to the Order which included the post of Tax Inspector. Paragraph 2 of the Order directed that future vacancies on the promotion post will not ordinarily be given from a lower to higher post unless the officials holding the lower post, possess the requisite educational qualification prescribed for the higher post. Paragraph 3 directed that the posts of Head Clerks of Office Superintendent should be filled by promotion only from among the educationally qualified Head Clerks. It further directed that under no circumstances the posts of Head Clerks or Office Supdt. be filled by direct recruitment from outside. Paragraph 4 directed the Municipal Boards to discontinue the posts of Sectional Head Clerks and to create posts of Office Head Clerks. Paragraphs 7 and 8 of the Order do not contain any directions with regard to the question of promotion. Paragraph 5 as quoted earlier directed that promotion as a rule should be made from the lower to the higher post or grade in the same class of service subject to the directions contained in other paragraphs of the Order which means subject to the employee possessing the minimum qualifications prescribed for the higher post and the higher post should not be filled by transferring employees belonging to other class of service. Paragraph 6 directed that in case of direct recruitment to any post as specified in the annexure of the Order it should be governed by the educational qualifications prescribed in the Order and recruitment should be made in accordance with the procedure prescribed therein by constituting a committee and inviting applications. Paragraphs 5 and 6 as quoted above do not contain any directions requiring Municipal Board to fill the post of Tax Inspector exclusively by promotion. Though paragraph 3 as already noted directed that under no circumstance the post of Head Clerk or Office Supdt. should be filled up by the direct recruitment from outside, no such direction for the post of Tax Inspector was issued, therefore it was open to the Municipal Board to make appointment to the post of Tax Inspector either by direct recruitment or by promotion.
7. In the instant case, the Municipal Board Jaunpur gave opportunity to its employees working in the revenue class of service to appear for selection to the post of Tax Inspector in competition with outsiders. Respondent No.3 however, did not avail the opportunity for which he himself is to be blamed. The Municipal Board, in our opinion, acted within its jurisdiction in making appointment to the post of Tax Inspector by direct recruitment. The Commissioner, as well as the High Court committed error in taking a contrary view. Subsequently, the Act was amended and the statutory rules i.e. the U.P. Palika Centralised Service Rules have been framed regulating the conditions of service of municipal employees and appointment to the post of Tax Inspector is regulated by Statutory Rules.
8. The High Court committed serious error in upholding the order of the Government dated 13.2.80 in setting aside the appellant’s appointment without giving any notice or opportunity to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner’s Order had been passed without affording any opportunity of hearing to the appellant therefore the order was illegal and void. The High Court committed serious error in upholding the Commissioner’s Order setting aside the appellant’s appointment. In this view, Orders of the High Court and the Commissioner are not sustainable in law.
9. We accordingly, allow the appeal and set aside the Order of the High Court as well as the Commissioner.
10. There will be no order as to costs.
1. This appeal is directed against the judgment and order of the High Court of Allahabad dated July 28, 1986 dismissing the appellant’s petition under Article 226 of the Constitution challenging the order of the Commissioner Varanasi Division dated February 13, 1980 setting aside the order of Municipal Board, Jaunpur appointing the appellant as Tax Inspector.
2. The Municipal Board, Jaunpur issued advertisement inviting applications for appointment to the post of Tax Inspector. The advertisement stated that the existing employees of the Revenue Department of the Municipal Board were eligible for consideration along with outsiders. Hari Mohan Respondent No.3 who was the senior most Tax Collector working in the Municipal Board, Jaunpur was called for interview but he refused to appear for the interview on the plea that the post of Tax Inspector should have been exclusively filled by promotion and as he was the senior most Tax Collector he should be promoted without considering any outsider. The Municipal Board ignored, his claim and selected the appellant, and appointed him to the post of the Tax Inspector by the order dated 11.3.78. Respondent No.3 therefore filed a claim petition before the Services Tribunals Act, 1976 but subsequently he withdrew the same on 23.12.79. Thereafter he filed a representation to the Prescribed Authority i.e. the Commissioner Varanasi challenging appellant’s appointment to the post of Tax Inspector. The Commissioner by his order dated 13.2.80 set aside the order of the Municipal Board and cancelled the appellant’s appointment on the ground that the Respondent No.3 was entitled to promotion in pursuance to the directions contained in the Government Order dated 10.4.50. The appellant filed a writ petition under Article 226 of the Constitution before the High Court challenging the order of the Commissioner. A learned Single Judge (B.D.Agarwal, J.) of the High Court of Allahabad dismissed the writ petition and affirmed the order of the Commissioner on the findings that the appellant’s appointment was made in violation of the Government Order dated 10.4.50. Hence this appeal.
3. After hearing learned counsel for the parties at length we are of the opinion that the High Court committed manifest error in upholding the order of the Commissioner. The basic question which arises for consideration is whether the post of Tax Inspector, under the provision of the U.P. Municipalities Act, 1916 (hereinafter referred to as the ‘Act’) or any rules framed thereunder or under the Government Order dated 10.4.1950 the post of Tax Inspector was required to be filled by promotion only and not by direct recruitment. The Prescribed Authority i.e., the Commissioner as well as the High Court both proceeded on the assumption that the Government Order dated 10.4.50 had been issued by the State Government in exercise of its supervisory powers under s.71 of the Act and as such it was binding on the Municipal Board, and the directions contained therein required the Municipal Board to fill up the post of Tax Inspector exclusively by promotion and not by direct recruitment. In making the appellant’s appointment as a direct recruit, the Municipal Board in violation of the directions contained in the aforesaid Government Order, therefore, the appellant’s appointment was rendered illegal. The High Court upheld the order of the Prescribed Authority on these findings. Learned counsel for the appellant urged that the directions contained in the Government Order dated 10.4.50 were ultra vires the State Government’s powers under s. 71 of the Act. He placed reliance on Ramesher Prasad and other v. Municipal Board, Pilibit, AIR 1958 Alld. 363. The learned counsel further urged that the aforesaid decision was approved by two other learned judges of the High Court in Ram Kripal Garg v. State of U.P. Writ Petition No. 4656 of 1965 dt. 16.9.66 and Inder Bahadur v. Municipal Board, Mirzapur and others Writ petition No. 235 of 1970 dt. 20.10.72 holding that the Government Order dated 10.4.50 was ultra vires. These decisions were placed before the learned Single Judge but he did not agree with the view taken in the aforesaid decisions instead he took a contrary view in holding that the Government Order dated 10.4.50 was valid and it required the Municipal Board to fill up the post of Tax Inspector only by promotion. It is well settled principle of judicial discipline as has been reiterated in a number of decisions of this Court that if a Single Judge, disagrees with the decision of another Single Judge, it is proper to refer the matter to a larger Bench for an authoritative decision. But in the instant case the learned Judge acted contrary to the well established principles of judicial discipline in ignoring those decisions.
4. Section 71 of the Act before its amendment in 1964 did not confer power on the State Government to issue any direction regulating the conditions of service of Municipal employees. The view taken by the High Court in Ramesher Prasad case and followed in other two cases, is correct. The High Court placed reliance on the Government Orders dated 27.4.57, 9.12.59 and 30.1.72 in holding that the directions contained in Government Order dated 10.4.50 were binding on the Municipal Board. We have gone through the aforesaid Government Orders and Notifications but we find nothing therein to clothe the Government Order dated 10.4.50 with statutory character. A Government Order declared ultra vires by High Court could not be revived by any subsequent Government Order without there being any statutory power for the same. Moreover the aforesaid Government Orders and Notifications do not contain any direction requiring the Municipal Board to fill up the post of Tax Inspector exclusively by promotion. The High Court committed error in upholding the Commissioner’s order.
5. We have closely scrutinised the Government Order dated 10.4.50 (Annexure 1 to the petition) with the assistance of the counsel for the parties. But even after conceding supervisory power to the State Government to issue direction laying down conditions of service of Municipal employees, we do not find any directions therein requiring a Municipal Board to fill the post of Tax Inspector only by promotion and not by direct recruitment. Learned counsel for the respondent placed reliance on paragraphs 5 and 6 of the Government Order in support of his contention that the post of Tax Inspector was required to be filled by promotion only. Paragraphs 5 and 6 of the Government Order read as under:
5.- In the case of the posts mentioned in the annexure promotions should, as a rule, be made from the lower to the higher posts or grades, as the case may be, in the same class of Services Subject to the general orders contained in the above paragraphs. The prevailing practice of transferring at random officials in one class of service to another should be stopped.
6.- When direct recruitment to any post specified in the annexure had to be made it will be governed by the educational qualifications shown therein. Recruitments to posts from outside should, however, as far as possible be made by inviting applications through advertisement in the press and making a selection therefrom preferably by means of a competitive test. Local Bodies may also be advised to form a Committee consisting of the Chairman or the President, the Executive Officer or the Secretary, as the case may be, and the principal administrative officer of the department concerned, to make a selection from among the applicants for a vacant post by interviewing them after a competitive test. The actual appointment will, however, be made by the competent authority.”
6. In order to ascertain the correct scope of the aforesaid paragraphs it is necessary to refer to the entire content of the Order. It appears that the U.P. Pay Committee made certain recommendations prescribing minimum qualification in respect of employees of local Bodies. The State Government accepted the recommendations of the Pay Committee by its Resolution dated March 29, 1949 and in pursuance thereof it issued the Government Order dated 10.4.50 prescribing minimum qualifications for the employees of Local Bodies mentioned in the Schedule to the Order which included the post of Tax Inspector. Paragraph 2 of the Order directed that future vacancies on the promotion post will not ordinarily be given from a lower to higher post unless the officials holding the lower post, possess the requisite educational qualification prescribed for the higher post. Paragraph 3 directed that the posts of Head Clerks of Office Superintendent should be filled by promotion only from among the educationally qualified Head Clerks. It further directed that under no circumstances the posts of Head Clerks or Office Supdt. be filled by direct recruitment from outside. Paragraph 4 directed the Municipal Boards to discontinue the posts of Sectional Head Clerks and to create posts of Office Head Clerks. Paragraphs 7 and 8 of the Order do not contain any directions with regard to the question of promotion. Paragraph 5 as quoted earlier directed that promotion as a rule should be made from the lower to the higher post or grade in the same class of service subject to the directions contained in other paragraphs of the Order which means subject to the employee possessing the minimum qualifications prescribed for the higher post and the higher post should not be filled by transferring employees belonging to other class of service. Paragraph 6 directed that in case of direct recruitment to any post as specified in the annexure of the Order it should be governed by the educational qualifications prescribed in the Order and recruitment should be made in accordance with the procedure prescribed therein by constituting a committee and inviting applications. Paragraphs 5 and 6 as quoted above do not contain any directions requiring Municipal Board to fill the post of Tax Inspector exclusively by promotion. Though paragraph 3 as already noted directed that under no circumstance the post of Head Clerk or Office Supdt. should be filled up by the direct recruitment from outside, no such direction for the post of Tax Inspector was issued, therefore it was open to the Municipal Board to make appointment to the post of Tax Inspector either by direct recruitment or by promotion.
7. In the instant case, the Municipal Board Jaunpur gave opportunity to its employees working in the revenue class of service to appear for selection to the post of Tax Inspector in competition with outsiders. Respondent No.3 however, did not avail the opportunity for which he himself is to be blamed. The Municipal Board, in our opinion, acted within its jurisdiction in making appointment to the post of Tax Inspector by direct recruitment. The Commissioner, as well as the High Court committed error in taking a contrary view. Subsequently, the Act was amended and the statutory rules i.e. the U.P. Palika Centralised Service Rules have been framed regulating the conditions of service of municipal employees and appointment to the post of Tax Inspector is regulated by Statutory Rules.
8. The High Court committed serious error in upholding the order of the Government dated 13.2.80 in setting aside the appellant’s appointment without giving any notice or opportunity to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner’s Order had been passed without affording any opportunity of hearing to the appellant therefore the order was illegal and void. The High Court committed serious error in upholding the Commissioner’s Order setting aside the appellant’s appointment. In this view, Orders of the High Court and the Commissioner are not sustainable in law.
9. We accordingly, allow the appeal and set aside the Order of the High Court as well as the Commissioner.
10. There will be no order as to costs.
