JUDGMENT
Rajendra Babu J.
1. The first respondent was appointed by the Commissioner of the Corporation of City of Bangalore – second respondent to the post of Deputy Commissioner in the establishment of the second respondent. Government made an order on 27.6.1992 appointing third respondent as Deputy Commissioner to the Bangalore City Corporation. The first respondent challenged the validity of this appointment by contending that under the Karnataka Municipal Corporation Act, 1976 (hereinafter, for short, referred to as the Act) the respondent No. 3 could not be appointed by filing a Writ Petition out of which this Appeal arises.
2. It appears, the first respondent who was a Revenue Officer was promoted to the post of Deputy Commissioner on the recommendation of the Departmental Promotion Committee on officiating basis in the vacancy arising on the retirement of one A. Shankarappa. The proposals were sent by the Commissioner to the Government for approval of the appointment. However, in anticipation of such approval the first respondent was appointed as Deputy Commissioner. Subsequently, when the appointment of the first respondent was not approved by the Government and third respondent was appointed in his place, the same has been challenged in the Petition in question.
3. The appellant contended that the Government is the Appointing Authority to the cadre of Deputy Commissioners in the establishment of the second respondent in terms of Sections 82 and 84 of the Act read with Rule 26 of the Karnataka Municipal Corporations Rules, 1977 (for short the Rules). It took the stand that the Departmental Promotion Committee in the Corporation could not have made any recommendation and it was also contended that the appointment of the first respondent could not be approved by the Government and therefore the impugned Notification came to be issued appointing the third respondent as the Deputy Commissioner. It is stated that he assumed charge of the office of the Deputy Commissioner (Revenue) on 29.6.1992.
4. The learned Single Judge took the view that under Section 82 of the Act the Government can appoint for every Corporation such Officers of the State Civil Services as it considers suitable to the post of Engineer, Health Officer, Revenue Officer, Chief Accounts Officer and Council Secretary for the efficient functioning of the Corporation and such officers shall be Heads of their Departments in the establishment of the Corporation and they shall be subordinate to the Commissioner. The learned Judge took the view that the said provision enables the Government only to appoint officers belonging to the State Civil Services to the posts referred to earlier and does not enable the Government to appoint the officers of the Corporation to any of the posts stated therein; and therefore appointment of the first respondent cannot be related to the provisions of Section 82(1). He held that Section 84 of the Act provides for appointment to the posts other than the posts referred to in Section 82 subject to the provisions of Section 85 and 86 of the Act, which relates to certain special appointments and the appointment of first respondent was in terms of Section 84 of the Act and therefore the approval of the Government for the said appointment was not required.
5. Rule 26 of the Rules provides that filling up of one post of Deputy Commissioner could be by promotion and not by direct recruitment. The learned Judge also took the view that Rule 26 of the Rules provides that the posts mentioned in column (2) of the Table thereunder shall be filled by the Government by appointment of officers to the cadre specified in the corresponding entries in column (3) thereof, leads to an anomalous position inasmuch as Section 84 of the Act enjoins that the appointment shall be made by the Commissioner. Inasmuch as Rule 26 is a subordinate piece of legislation framed in exercise of powers conferred under Section 421 of the Act, the mandatory provisions of Section 84 of the Act overrides the provisions of Rule 26 of the Rules and to the extent of its inconsistency the said Rule is invalid. On that basis, the learned Judge allowed the Writ Petition by quashing Rule 26 to the extent of inconsistency pointed out above and declared that first respondent would continue to hold the post of Deputy Commissioner in the establishment of the Bangalore City Corporation with all consequential benefits.
6. The learned Advocate General, in support of the Appeal, submitted that under Section 82 of the Act, the Government can also appoint one or more Deputy Commissioners who shaft exercise such powers and discharge such functions as may be specified and under the said Section, Government is empowered to make appointment to the post of Deputy Commissioner from any cadre and need not necessarily from the civil services. Under Rule 26 of the Rules, the post of Deputy Commissioner in the Corporation shall be filled up by Government, The Corporation made an order appointing the 1st respondent as the Deputy Commissioner with effect from 1.1.1991 pending approval by the Government. The Government, by its letter dated 27th June, 1992 informed the Commissioner of the Corporation that the Government is the Appointing Authority for the post of Deputy Commissioner and the Departmental Promotion Committee constituted by the Corporation is not competent to recommend appointment and the same should have been considered by such Committee constituted by the Government and therefore rejected the proposal to ratify the action taken by the Corporation and ordered appointment of 3rd respondent. It is contended that the second sentence of Sub-section (1) of Section 82 was totally ignored by the learned Single Judge and the said part of the Section is not controlled by the words contained in the first sentence and therefore, the Government could appoint the Deputy Commissioner either from the State Civil Services or from any other source. The learned Single Judge, it is contended, omitted to take note of certain provisions of the Act and read into it something which was not there and therefore he could see an anomaly arising between Sections 82, 84 and Rule 26. He therefore contended that the interpretation placed by the learned Single Judge is contrary to all canons of statutory construction. Even assuming for a moment that Section 82 was not applicable to appointments of Deputy Commissioners arising under Section 84, appointments could be made only under Section 84. That provision also provided that the same was controlled by the provisions of the Act, Rules and Regulations framed thereto. Again, it is submitted, even in interpreting Section 84, the learned Single Judge overlooked certain provisions of the said Section and thus erred in holding that the latter post of Deputy Commissioner to which appointment has to be made by promotion from the cadre of Revenue Officer was in the category of posts under Section 84 of the Act, whereas other two posts of Deputy Commissioners to be filled up by deputation fall under the category of posts under Section 82 of the Act. Thus, the learned Single Judge erred in bifurcating the posts of Deputy Commissioners, one on deputation and the other on promotion. It is therefore contended that the declaration made by the learned Single Judge that the 1st respondent continue to hold the post of Deputy Commissioner, is erroneous.
7. Sri U.L. Narayana Rao, learned Senior Advocate, appearing on behalf of the 1st respondent submitted that the view taken by the learned Single Judge is in accordance with the well established principles of interpretation and does not call for interference.
8. In order to appreciate the contentions put forth by the learned Advocate General, it is necessary to set out the relevant provisions of the Act and the Rules. Section 82, Section 84 of the Act and Rule 26 of the Rules read as follows :
“S.82 Appointment of Engineer, Health Officer etc.,
(1) The Government shall appoint for every Corporation such officers of the State Civil Services as it considers suitable to be the Engineer, Health Officer, Revenue Officer, Chief Accounts Officer and Council Secretary for the efficient functioning of the Corporation and such officers shall be heads of their respective departments in the Corporation and they shall be subordinate to the Commissioner. The Government may also appoint one or more Deputy Commissioners and Assistant Commissioners who shall exercise such powers and discharge such functions as may be specified in the rules. They shall be subordinate to the Commissioner.
(2) The Government shall, in consultation with the Mayor, appoint an officer not below the rank of an Assistant Commissioner to be the Council Secretary. The Officer appointed shall be on deputation ordinarily for a period of three years and if the Corporation by two thirds majority of its members so desire, he shall be withdrawn earlier and another person appointed. It shall be the duty of the Council Secretary to attend every meeting of the Corporation and the Standing Committees and he shall perform such other duties as are imposed on him by or under this Act.
(3) The officers appointed under Sub-section (1) shall be whole-time officers of the Corporation and shall not undertake any work unconnected with their offices.
(4) Every officer of the Government appointed under Sub-sections (1) and (2) shall be paid by the Corporation such salary as may be determined by the Government from time to time which shall be met out of the Corporation fund and shall be entitled to leave and other privilege in accordance with the rules and regulations applicable to the Government service to which he belongs and in force for the time being, and the Corporation shall make such contribution towards his leave allowances, pension and provident fund as may be payable under such rules and regulations by him or on his behalf;”
“Section 84 Appointment to the other posts on the Corporation establishment:-
(1) Subject to the provision of Sections 85 and 86 appointment to posts on the corporation establishment other than borne on the cadre of the Karnataka Municipal Administrative Service, and the posts referred to in Section 82 shall be made by the Commissioner in accordance with this Act, the rules and the regulations framed thereunder.
(2) If any officer appointed under Sub-section (1) is a Government servant, he shall be entitled to leave and other privileges in accordance with the rules and regulations applicable to the Government service to which he belongs and in force for the time being and the Corporation shall make such contribution towards his salary, leave allowances, pension and provident fund as may be payable under such rules and regulations by him or on his behalf.”
“Rule 26 Appointment of Officers of the Corporation:-
In each of the Corporation the posts mentioned in column (2) of the Table below shall be filled by Government by appointment of officers of the cadre specified in the corresponding entries in column (3) thereof and the number of such posts in each Corporation shall be as specified in the corresponding entries in column (4) thereof.”
9. Section 32 of the Act provides for appointment of officers of the State Civil Services to the posts of Engineer, Health Officer, Revenue Officer, Chief Accounts Officer and Council Secretary. There is another category of appointments to be made to the posts of Deputy Commissioners and Assistant Commissioners. Both sets of officers are subordinate to the Commissioner. However, one distinction is maintained that the Engineer, Health Officer, Revenue Officer, Chief Accounts Officer and Council Secretary will be heads of their respective departments in the Corporation. But, no such indication is given in respect of Deputy Commissioners and Assistant Commissioners. While for the first category of officers appointments could be made only from the State Civil Services, for the posts of Deputy Commissioners and Assistant Commissioners, the source of recruitment is not mentioned. So far as the Council Secretary is concerned, separate provision is made under Sub-section (2). Sub-section (4) thereof provides that the emoluments to be paid to the officers of the Government appointed under Sub-sections (1) & (2) shall be met out of the Corporation fund and their other terms of service will be governed by the rules and regulations applicable to Government servants and Corporation will have to make appropriate contribution towards his leave allowances, pension and provident fund. Section 84 enables the Commissioner to make appointments under the Act, Rules and the regulations thereunder to the posts on the establishment of the Corporation other than those borne on the cadre of the Karnataka Municipal Administrative Service and the posts referred to in Section 82. Once again, provision similar to Section 82(4) is made under Sub-section (2) of Section 84 of the Act. Rule 26 provides that the posts mentioned in column (2) of the Table appended thereto shall be filled by Government by appointment of officers to the cadre specified in the corresponding entries in column (3) thereof. The rule specifically provides that the Government shall make appointments of those officers viz., Deputy Commissioners and Assistant Commissioners. Thus Rule 26 merely gives effect to the provisions of Sections 82 and 84 of the Act.
10. Now the first question that falls for our consideration is whether the Deputy Commissioner referred to in Section 82(1) of the Act is confined to Deputy Commissioner to be appointed from the State Civil Services. Even plain reading of Section 82 is not to that effect. In the first part of Section 82(1) where reference is made to State Civil Services, it is specifically provided that the officers who could be appointed, such an Engineer, Health Officer and Chief Accounts Officer, shall be the Heads of department. The Deputy Commissioners and Assistant Commissioners who are to be appointed are not stated to be Heads of Department. The Government could appoint one or more Deputy Commissioners. Therefore, we must hold that Section 82(1) covers not only Deputy Commissioners to be appointed from the State Civil Services but also others and the rules also specify in that regard from what source they could be appointed because the Government may appoint one or more Deputy Commissioners as may be specified in the rules. The expression “as specified in the rules” cannot be confined only to exercise of powers and discharge of functions. It could also be with reference to the recruitment to be done to the different posts, if, in the rules, it is mentioned that appointment shall be made both from the State Civil Services and also by promotion from the cadre of Revenue Officers, it cannot be said that the same is ultra vires the provisions of the Act as in our opinion expression ‘Deputy Commissioners’ referable to in Section 82(1) is not limited to those drawn from the State Civil Services. If we take this view, then Section 84 will not be applicable at all because in Section 84, what is considered is appointments other than those referable to in Section 82. They will be such employees of the Corporation who are in cadre lower to the Commissioner and Deputy Commissioners or even Assistant Commissioners. Therefore, we do not think Section 84 has any application to the present situation and the reliance placed by the learned Single Judge on Section 84 – to state that Rule 26 is contrary to Section 84 is, in our opinion, with respect, not in conformity with the provisions of the scheme of the Act.
11. Even assuming for a moment that Section 82 does not govern the appointments to be made in respect of Deputy Commissioners and Section 84 alone is applicable, what is provided thereunder is that the Commissioner is enabled to make appointments in accordance with the Rules and regulations and the other provisions of the Act, rules and regulations to be framed will control the power of the Commissioner to make appointments. On that basis, we cannot say that Rule 26 will have to yield to Section 84. On the other hand, Rule 26 will control Section 84 because that is the plain effect of the provisions of Section 84(1) as interpreted by us. Therefore, we think the view of the learned Single Judge that it is contrary to Section 84, is also, with respect, not correct.
12. Thus, we have got to hold that rule 26 is not ultra vires the Act in any manner and it gives effect to Section 82 as held earlier and therefore is valid. If that is so, the Government was well within its powers to refuse to approve appointment of Respondent No. 1 and therefore, We uphold the order made by the Government by setting aside the order made by the learned Single Judge and dismissing the Writ Petition. Writ Appeal is allowed accordingly.