PETITIONER:
SHRIDHAR SON OF RAM DULAR
Vs.
RESPONDENT:
NAGAR PALIKA, JAUNPUR AND ORS.
DATE OF JUDGMENT17/11/1989
BENCH:
SINGH, K.N. (J)
BENCH:
SINGH, K.N. (J)
KASLIWAL, N.M. (J)
CITATION:
1990 AIR 307 1989 SCR Supl. (2) 201
1990 SCC Supl. 157 JT 1989 (4) 327
1989 SCALE (2)1115
ACT:
U.P. Municipalities Act, 1916: Section 71--Scope
of--Whether confers power on State Govt. to issue direc-
tions, regulating the conditions of service of Municipal
Employees.
Tax Inspector--Appointment of--Whether to be exclusively
filled by promotion--Government's Order dated
10.4.50--Applicability of.
Practice and Procedure: Judicial discipline--Single
Judge disagreeing with another Single Judge--Matter should
be referred to a Larger Bench.
Administrative Law--Principles of natural
justice--Violation of--Effect.
HEADNOTE:
The Municipal Board, Jaunpur invited applications for
the post of Tax Inspector. The employees working in the
Revenue Department of the Municipal Board were eligible for
consideration alongwith the outsiders. Respondent No. 3, the
seniormost Tax Collector in Municipal Board, was called for
interview but he refused to appear on the plea that the post
of Tax Inspector should be exclusively filled by promotion
and being the seniormost Tax Collector he should be promoted
without considering any outsider. Ignoring his claim the
Municipal Board selected and appointed the appellant to the
post of Tax Inspector. Respondent No. 3 represented to the
Commissioner challenging the appellant's appointment. The
Commissioner set aside the order of the Municipal Board and
cancelled the appellant's appointment holding that pursuant
to the directions contained in the Government's Order dated
10.4.50, Respondent No. 3 was entitled to promotion. The
appellant challenged the Commissioner's order before the
High Court by filing a writ petition. Disagreeing with the
decision of another Single Judge, a Single Judge of the High
Court dismissed the writ petition, and affirmed the order of
the Commissioner on the findings that the appellant's ap-
pointment was made in violation of the Government's Order
dated 10.4.50. Hence this appeal.
202
Allowing the appeal and setting aside the order of the
High Court, this Court,
HELD: 1. The orders of the High Court and the Commis-
sioner are not sustainable in law. [208B]
1.1. It is a well-settled principle of judicial disci-
pline 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 Single Judge of the High Court
acted contrary to the well established principles of judi-
cial discipline in ignorning those decisions. [205B-C]
2. Section 71 of the U.P. Municipalities Act, 1916
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. [205D]
Ramesher Prasad and Ors. v. Municipal Board, Pilibhit,
A.I.R. 1958 All. 363; Ram Kripal Garg v. State of U.P., Writ
Petition No. 4556 of 1965 dated 16.9.66 and Inder Bahadur v.
Municipal Board, Mirzapur and Ors., Writ petition No. 235 of
1970 dated 20.10.1972 approved.
2. I Even after conceding supervisory power to the State
Government to issue directions laying down conditions of
service of Municipal employees, there are no directions in
the Government Order dated 10-4-50 requiring a Municipal
Board to fill the post of Tax Inspector only by promotion
and not by direct recruitment. Therefore, it was open to the
Municipal Board to make appointment to the post of Tax
Inspector either by direct recruitment or by promotion.
[205G; 207D]
2.2 In the instant case, the Municipal Board gave oppor-
tunity to its employees working in the revenue class of
service to appear for selection in competition with outsid-
ers. Respondent No. 3 however did not avail the opportunity
for which he himself is to be blamed. The Municipal Board
acted within its jurisdiction in making appointment to the
post of Tax Inspector by direct recruitment. [207E]
2.3 A Govt. Order declared ultra vires by the High
Court, could not be revived by any subsequent Govt. Order
without there being any statutory power for the same. [205E]
3. It is an elementary principle of natural justice that no
person
203
should be condemned without hearing. The order of appoint-
ment conferred a vested right in the appellant to hold the
post of Tax Inspector, that right could not be taken away
without affording an opportunity of hearing to him. Any
order passed in violation of the principles of natural
justice is rendered void. In the instant case, there is no
dispute that the Commissioner's order had been passed with-
out 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 without
giving any notice or opportunity to him. [207G-H; 208A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2967 of
1986.
From the Judgment and Order dated 28.7.1986 of the
Allahabad High Court in W.P. No. 1793 of 1980.
Satish Chandra, R.B. Mehrotra, S.K. Mehta, Atul Nanda
and Aman Vachher for the Appellant.
J.M. Khanna, R.B. Misra and Ms. Anil Katiyar for the
Respondents.
The Judgment of the Court was delivered by
SINGH, J. 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.
The Municipal Board, Jaunpur issued advertisement invit-
ing applications for appointment to the post of Tax Inspec-
tor. The advertisement stated that the existing employees of
the Revenue Department of the Municipal Board were eligible
for consideration along with outsiders. Hari Mohan Respond-
ent 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 seniormost Tax Collector he
should be promoted without considering any outsider. The
Municipal Board ignored, his claim and selected the appel-
lant, and appointed
204
him to the post of the Tax Inspector by the order dated
11.3.78. Respondent No. 3 thereafter filed a claim petition
before the Services Tribunal constituted under the U.P.
Public Services Tribunals Act, 1976 but subsequently he
withdrew the same on 23.12.79. Thereafter he filed a repre-
sentation 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 direc-
tions 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 Commission. 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.
After heating 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. Municipal-
ities 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 Govern-
ment Order dated 10.4.50 had been issued by the State Gov-
ernment 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 acted 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 con-
tained 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, Pilibhit, AIR 1958 All. 363. The learned counsel
further urged that the aforesaid decision was approved by
two other learned Judges of the High Court in
205
Ram Kripal Garg v. State of U.P., Writ Petition No. 4556 of
1965 dated 16.9.66 and Inder Bahadur v. Municipal Board,
Mirzapur and Others, Writ Petition No. 235 of 1970 dated
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 princi-
ple 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 authori-
tative decision. But in the instant case the learned Judge
acted contrary to the well established principles of judi-
cial discipline in ignoring those decisions.
Section 71 of the Act before its amendment in 1964 did
not confer power on the State Government to issue any direc-
tion 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 Govern-
ment Order without there being any statutory power for the
same. Moreover the aforesaid Government Orders and Notifica-
tions 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.
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 super-
visory power to the State Government to issue directions
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:
206
“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
Service Subject to the general orders con-
tained 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 speci-
fied 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 adver-
tisement in the press and making a selection
therefrom preferably be 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 Secre-
tary, 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
the after a competitive test. The actual
appointment will, however, be made by the
competent authority.”
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 qualifications
in respect of employees of Local Bodies. The State Govern-
ment 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 ordi-
narily be given from a lower to higher post unless the
officials holding the lower post, possess the requisite
educational qualifications prescribed for the higher post.
Paragraph 3 directed that the posts of Head Clerks or 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 Suptdt. 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
207
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 serv-
ice. 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 pre-
scribed in the Order and recruitment should be made in
accordance with the procedure prescribed therein by consti-
tuting a committee and inviting applications. Paragraphs 5
and 6 as quoted above do not contain any directions requir-
ing Municipal Board to fill the post of Tax Inspector exclu-
sively by promotion. Though paragraph 3 as already noted
directed that under no circumstances the post of Head Clerk
or Office Suptdt. should be filled up by the direct recruit-
ment 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.
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.
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 oppor-
tunity 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
208
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 Commis-
sioner’s Order setting aside the appellant’s appointment. In
this view, Orders of the High Court and the Commissioner are
not sustainable in law.
We accordingly, allow the appeal and set aside the Order
of the High Court as well as the Commissioner.
There will be no order as to costs.
T.N.A. Appeal
allowed.
209
