ORDER
1. Heard Mr. K. Hiriyanna, learned Counsel for the petitioner, Mrs. V. Vidya, learned H.C.G.P. for respondent 1 and Mr. S. Basavaraj, learned Standing Counsel for respondents 2 and 3.
2. The present writ petition is directed against the corrigendum dated 2-7-1996 (Annexure-D) issued by the 2nd respondent substituting the consolidated pay of Rs. 3,850/- per month instead of the time pay scale of 1520-40-1800-50-2300-75-2900 as mentioned in the order dated 15-5-1996 (Annexure-B). The second prayer of the petitioner is to direct the 2nd respondent to modify the order dated 6-4-1998 (Annexure-G) providing for ‘deputation’ of the services of the petitioner to the 3rd respondent-Airport Authority.
3. The Metropolitan Commissioner (respondent 2) of the Bangalore Metropolitan Region Development Authority (in short, the ‘BMRDA’) under his order dated 15-5-1996 (Annexure-B) appointed the petitioner along with Ms. Kalaivani as draughtsman for a period of six months. Then appointments were made in the pay scale of Rs. 1520-40-1800-50-2300-75-2900 subject to the condition that their tenure of appointment was only for a period of six months and that their appointment can be cancelled at any time without any notice.
3a. According to the then Metropolitan Commissioner, since their appointments were made purely on temporary and contract basis, therefore mentioning of the pay scale was an obvious mistake and accordingly by the impugned corrigendum dated 2-7-1996 (Annexure-D) substituted the word ‘pay scale of Rs. 1520-40-1800-50-2300-75-2900 by the word
‘fixed pay of Rs. 3,850/-‘, which was accepted by the petitioner without any demur and continued with the work.
4. Again, by another Official Memorandum dated 26-7-1996 (Annexure-3 to the statement of objections), it was specifically clarified that the appointments of the petitioner and Ms. Kalaivani were made on a fixed pay of Rs. 3,850/- that too for a period of six months from the date of their joining. However, the BMRDA in its meeting held on 11-9-1996 (Annexure-4) accorded the post facto approval to the appointments of the petitioner, Ms. Kalaivani and one tracer for a period of one year as against six months on contract basis.
5. Though the said period of one year was still in currency, by a subsequent Official Memorandum dated 21-12-1996 (Annexure-5), the services of the petitioner and Ms. Kalaivani were continued from 13-12-1996 and 10-12-1996 respectively for another period of one year on a monthly payment of Rs. 3,850/-. When the said term of one year was about to expire, the petitioner filed a representation dated 12-12-1997 (Annexure-7) before the Metropolitan Commissioner requesting him to extend his service as draughtsman in BMRDA. The Metropolitan Commissioner thereupon passed the impugned order at Annexure-G, which is to the following effect.-
“For the reasons stated in the preamble and for discharging the works of structure plan and other technical works pertaining to Bangalore Metropolitan Region, the services of the following staff have been continued in Bangalore Metropolitan Region Development Authority.-
1. Ms. Kalaivani, A. From 10-12-1997 to 31-3-1998 2. Mr. Shivakumar, B.V. From 13-12-1997 to 31-3-1998 3. Ms. Sumangala From 24-11-1997 to 31-3-1998.
After expiry of the above period, their services will be continued for a period of six months from 1-4-1998 to 30-9-1998 in the office of the Bangalore International Airport Area Planning Authority and out of the fund of Area Planning Authority, a sum of Rs. 3,850/- per month will be paid. Thereafter, no further extension will be given”.
6. Under the aforesaid circumstances, the present writ petition has been filed for the reliefs referred to in para two above.
7. The BMRDA is constituted under Section 3 of the Bangalore Metropolitan Region Development Authority Act, 1985 (in short, the ‘BMRDA Act’). Section 8 of the BMRDA Act makes provisions for officers and servants of the BMRDA. Sub-sections (1) and (2) thereof deals with officers of the higher posts with which I am not presently concerned. For the posts of either draughtsman or tracer sub-section (3) of Section 8 is material which reads as under:
8. Officers and servants.-
(1) XXX XXX XXX XXX. (2) XXX XXX XXX XXX.
(3) The Authority may, from time to time, sanction creation of such other posts of officers and servants as may be necessary for the efficient performance of the functions of the Authority. The condition of recruitment, appointment and service and the powers and duties of such officers and servants shall be such as may be determined by regulations:
Provided that no post carrying a minimum salary of one thousand five hundred rupees and above shall be created without the approval of the Government,
8. Section 30 of the BMRDA Act empowers the BMRDA to make regulations. This section reads as under:
30. Regulations.–The Authority may, by notification and with previous sanction of the Government, make regulations not inconsistent with this Act and the rules made thereunder for enabling it to perform its functions under this Act. Regulation may be made in respect of any matter which is required to be or may, in the opinion of the Authority be provided by regulations.
9. The present Metropolitan Commissioner in his personal affidavit dated 23-7-1998 has stated that so far only 6 supernumerary posts have been created in the establishment of the BMRDA, viz., (i) Metropolitan Commissioner (ii) Deputy Metropolitan Commissioner (iii) Assistant Metropolitan Commissioner, (iv) Joint Director of Town Planning (v) Deputy Director of Town Planning and (vi) Law Officer. He has further admitted that no regulations providing for the condition of recruitment, appointment and service etc., as required under Section 8(3) of the BMRDA Act have been framed as per Section 30 of the BMRDA Act. He has also stated that the BMRDA in its Executive Committee Meeting held on 18-4-1994 (Annexure-1), has resolved to adopt the Karnataka Civil Service Rules. The said resolution adopted by the BMRDA reads as under:
“After detailed discussion and until the formulation and adoption of special Regulations regarding service matters, by this Authority, it was resolved as follows:
The Bangalore Metropolitan Region Development Authority shall adopt the KCSR/KFC/KCE/CCA Rules for day to day functioning of the office as far as they are not inconsistent with the provisions of Bangalore Metropolitan Region Development Authority Act and Rules or Regulations of this Authority”.
10. From the above narrations read with the statutory provisions, it is quite clear that no posts of either draughtsman or tracer have been created in terms of Section 8(3) of the BMRDA Act since no post carrying minimum monthly salary of Rs. 1,500/- could have been created without the approval of the Government. Admittedly, in the present case no approval has been sought for from the Government. Therefore, it has to be held that mere adoption of the service rules applicable to the
Government servants by the BMRDA can be of no avail in relation to the officers and servants of the BMRDA, unless the regulations are framed in terms of Section 30 of the BMRDA Act, which requires fulfilment of two mandatory conditions for its enforcement, namely (i) obtaining of previous sanction of the State Government, and, (ii) its publication in the Official Gazette. Admittedly, none of these conditions have been fulfilled so far. Therefore, it has to be concluded that neither there are regulations for making appointment of officers and servants of the BMRDA nor there are service regulations providing for giving of salary or assignment of duties.
11. In the above view of the matter, it has to be necessarily held that the appointments given to the petitioner and two others against non est posts were ab initio void and without jurisdiction on the part of the Metropolitan Commissioner and the appointments itself were nullity. Therefore, no amount of rectification by the BMRDA could have justified their continuance. — Marathwada University v Seshrao Balwant Rao Chavan. Moreover, since the petitioner had acceded to the appointment given on purely on temporary and contract basis on a fixed salary pursuant to the corrigendum at Annexure-D and official memorandum dated 26-7-1996 (Annexure-3) therefore no interference is called for with the impugned corrigendum at Annexure-D. Further he has no right to stake any claim to remain in the employment of the BMRDA after the period for which he was temporarily appointed — Sandeep Kumar and Others v State of Uttar Pradesh and Others, Union of India and Others v Dinesh Kumar Saxena and Others and Escorts Limited v Presiding Officer and Another.
12. The facts noticed above further show that though BMRDA, in its meeting held on 11-6-1996, had ratified the temporary appointment only for a period of one year but the Metropolitan Commissioner on his own, continued it for a further period of six months. Subsequently, by showing his benevolence towards the petitioner and two others, the Metropolitan Commissioner, who was also the Chairman of the Bangalore International Airport Planning Authority (in short, the ‘Planning Authority’) pursuant to the representation filed by them, directed for transfer of their services on contract basis in the establishment of the Planning Authority by his impugned order dated 6-4-1998 (Annexure-G).
13. The Planning Authority has been constituted under Section 4-C of the Karnataka Town and Country Planning Act, 1961 (in short, the ‘Act’). Section 4-G of the Act makes provisions for staff of the Planning Authority, which reads thus.-
4-G. Staff of the Planning Authority.–(1) Subject to such control and restrictions as may be prescribed, a Planning Authority constituted under Section 4-C may appoint such number of officers and employees as may be necessary for the efficient performance of its functions and may determine their designations and grades.
(2) The officers and employees of such Planning Authority shall be entitled to receive such salaries and allowances as may be fixed by the Planning Authority and shall be governed by such terms and conditions of service as may be prescribed.
14. Rule 40 of the Karnataka Planning Authority Rules, 1965 (in short ‘the Rules’) makes provisions for appointment of officers and employees for Planning Authority, which reads thus.-
40. Appointment of officers and employees.–(1) No post at the maximum of the scale of pay of which exceeds Rs. 350 shall be created without the previous sanction of the Government and appointments to such posts shall be made in consultation with Karnataka Public Service Commission:
Provided that a person belonging to any of the Civil Services of the State may be appointed either by transfer or on deputation to any posts under the Planning Authority with the prior approval of the Government in the case of Class-I or Class-II Officers and with the prior approval of the Head of the Department concerned in other cases.
(2) The scales of pay, methods and qualifications for recruitment and other terms and conditions of services of officers and employees of the Planning Authority shall be the same as those applicable to the holders of corresponding categories of posts in the Department of Town Planning or other relevant departments of the Government of Karnataka:
Provided that the officers and members of the Planning Authority shall not be eligible for pension.
15. The above provisions clearly establish that the Chairman of the Planning Authority has no power of making appointment on any basis including contract basis except in accordance with Section 4-G of the Act read with Rule 40 of the rules framed thereunder. Therefore, for the aforesaid reasons, the impugned official memorandum dated 6-4-1998 (Annexure-G) to the extent it relates to transfer of services of the petitioner to the Planning Authority is unsustainable in law and it is accordingly.
16. So far as the petitioner’s prayer for directing the respondents to continue him in the services of BMRDA is concerned, as noticed above, it is not in dispute that the petitioner was given the appointment on temporary basis for certain period and therefore he has no right to stake claim to remain in the establishment of the BMRDA after the period for which the appointment was so given.
17. Before parting, I would like to refer to the circular dated 21-4-1997 (Annexure-6) placed on record by the present Metropolitan Commissioner along with his affidavit, which reads thus.-
“As per the Government orders and the circulars issued by the Government, the appointments on contract basis and on daily wage basis are prohibited. However, it has come to the notice of the Government that several Urban Development Authorities and the Town Planning Authorities have been making appointments on contract basis and on daily wage basis and making fixed payments to the employees in violation of the Government instructions. This action is in violation of the rules and it has been informed that the officer concerned will be made responsible. Such illegal appointments have been causing losses to the authorities. Hence, it is directed not to implement such illegal decision taken by the Commissioners and the Member Secretaries in the Meetings of the Authorities. In case such illegal decisions are taken in the meetings such decisions shall not be implemented and the report shall be made in this regard to the Government under the provisions of Section 13(2)(a) of the Karnataka Urban Development Authority Act. It is hereby informed that in case of default, the officer concerned will be made responsible and disciplinary action will be taken against him and the losses incurred by the authorities will be recovered from such officer”.
18. Coming to the facts of the present case, as discussed above, the then Metropolitan Commissioner, who is now holding the post of Secretary-I, Urban Development Department, Government of Karnataka, has prima facie acted contrary to the statutory provisions and Government directives in giving employment to the petitioner and two other persons on unsanctioned posts and therefore it will be incumbent upon the Chief Secretary of the State of Karnataka to take appropriate action against the said erring officer keeping in view the above circular in order to inspire confidence in the general masses that even the persons holding high posts in administrative hierarchy are subjected to appropriate penalties for violations committed by them and the law equally applies to the common man as well as persons placed in higher administrative echelon.
19. In my opinion, though for practical purposes Annexure-G stands quashed to the extent it purports to depute the petitioner and others in the Planning Authority but in the result the petitioner cannot derive any benefit therefrom because he ceased to be an employee of the BMRDA as well as the Planning Authority.
20. Subject to the aforesaid finding and observations, the writ petition is dismissed. No costs.