JUDGMENT
R.S. Garg, J.
1. Heard learned counsel for the parties.
The petitioner was appointed as Sanitary Supervisor. The petitioner later on under Annexure-4 was allowed to work as Tax Collector with effect from 11.8.1987. The petitioner was thereafter relieved on 14.8.1987 to join the post of Tax Collector. Since thereafter, the petitioner continued to work as Tax Collector. Thereafter on 15.6.1995 vide Corporation Order No. 27/95 under Annexure-8 the petitioner and seven others were absorbed in the cadre and their services were regularised as Tax Collectors. Thereafter, the petitioner continued to work but all of a sudden on 3.4.2002 vide Memo No. 289 the Administrator, Patna Municipal Corporation Sri A.B. Prasad reviewed the matter and without giving any opportunity of hearing to the petitioner directed that Order No. 27/95 (Annexure-8) stands recalled. He also observed that in the channel of promotion Sanitary Supervisor cannot be promoted as Tax Collector, therefore, the order dated 15.6.1995 was illegal.
2. The petitioner being aggrieved by the said order has come to this Court inter alia submitting that as the petitioner was validly promoted and in that case the order of promotion, absorption and regularisation could not be cancelled ex parte and lopsided and before passing or issuing orders contrary to the interest of the petitioner, an opportunity of hearing ought to have been given to him. It is also submitted by him that vide Annexure-6 memo No. 62150 dated 26.11.1976 Parmanand Singh and Madan Lal, Sanitary Supervisors, were made Tax Collectors and similarly one Brij Nandan Mishra, Peon working in the corporation was also made Tax Collector. According to him, said Brij Nandan Mishra stands superannuated while other two are continuing to work as Tax Collector right from 1976. It is also submitted that under memo No. 82 dated 3.2.1995 Corporation Order No. 47/Estb., one Tapeshwar Singh, who was also Sanitary Supervisor, was regularised as Tax Collector in the pay scale 1200-30-1800. The petitioner has also relied upon the judgment of this Court passed in Surya Kant Jha v. The Administrator, Patna Municipal Corporation and Ors., CWJC No. 10584 of 2000, decided on 13.5.2002 (Annexure-15) to contend that on an earlier occasion certain persons were promoted as Tax Collectors and their writ was decided in their favour. It is contended by the petitioner that the order contained in Annexure-1 is patently illegal and deserves to be quashed.
3. The Respondent Corporation through its Chief Executive Officer submitted that the channels of promotions are different, therefore, the Sanitary Supervisor cannot be promoted as Tax Collector.
4. To give dent to the pleadings raised by the respondents, the petitioner has filed certain documents with his application facts sought to be brought on record that the present Chief Executive Officer has invited Sanitary Supervisors to give their consent so that they may be made temporary incharge as Tax Collectors without payment of any extra remuneration to them. When this Court asked learned counsel for the Corporation and the Chief Executive Officer, who is present in Court, that if the promotion channels are different and Sanitary Supervisors cannot be made Tax Collectors then how under the defence of augmenting revenue or generating revenue, Sanitary Supervisors can be made Tax Collectors. Today, a supplementary counter-affidavit has been filed by the respondents. According to them, Section 64 of the Act read with Rule 3 of the Rules made under the Act authorises the Chief Executive Officer to pass any order in relation to the services and service conditions of the employees of the Corporation.
5. Learned counsel for the petitioner submits that Section 64 and Rule 3 have nothing to do with the present dispute and in any case if different channels have been merged into one channel and one employee/officer of one channel is to be promoted to another channel and vice versa and no objection is raised for long twenty five years then it must be held that such policy has already been abandoned.
6. Section 64 of the Act under which the Respondent Chief Executive Officer is claiming his authority to take action in appointing Sanitary Supervisor as Tax Collector or giving charge of the office, in fact, has nothing to do with it. Section 64 relates to functions of several municipal authorities. Sub-section (2) of Section 64 says that except as in the Act is otherwise expressly provided, the municipal Government of Patna vests in the Corporation. In absence of an elected council the authority vests in the Administrator and the moment council is elected and Mayer leads the council, the Administrator becomes Chief Executive Officer. The Chief Executive Officer has certain independent roles to act and some unfettered powers have been given but those powers are not of universal nature. In a given case without consultation with the Establishment Committee before an order is passed by the Chief Executive Officer restructuring the staffing pattern it would not be within the domain of the Chief Executive Officer. If certain works are to be performed or are to be approved by the Establishment Committee then those works are to be carried out by them and consequential actions have to be taken by the Chief Executive Officer in consultation with the Establishment Committee of the Municipal Corporation. Sub-section (3) of Section 64 says that subject, whenever, it is in this Act expressly so directed, to the approval or sanction of the Corporation or of the Standing Committee, and subject also to all other restrictions, limitations and conditions imposed by this Act, the entire executive power for the purpose of carrying out the provisions of this Act vests in the Chief Executive Officer, which authorises him to perform all the duties and exercise all the powers specifically imposed or conferred upon him by the Act. He shall also exercise supervision and control over the acts and proceedings of all municipal officers and servants and subject to the rules or by-laws for the time being in force, dispose of all questions relating to the services of the said officers and servants and their pay, privileges and allowances.
7. Rule 3 of the Rules says that an officer or servant of the Corporation shall be considered as a whole time officer or servant of the Corporation and shall not undertake any other work on remuneration or otherwise without the previous sanction of the Corporation. The whole time of the employee of the Corporation shall be at the disposal of the Corporation and he may be employed without claim for additional remuneration whether the service required to him are such as would ordinarily be remunerated from the Corporation revenues, from a loan fund or from any other fund at the disposal of the Corporation.
8. I do not think that Rule 3 read with Section 64 of the Act authorises the Chief Executive Officer to appoint the Sanitary Supervisor as Tax Collector if the allegations of the respondents are true that these are different channels. Rule 3 simply says that the services of an employee of the Corporation shall be at the disposal of the Corporation and he would be whole time employee. He may be employed without claim for additional remuneration whether the services required of him are such which are to be remunerated from the Corporation revenues etc. If a particular person is asked to look after the work of higher post then the post must be in the very same channel. According to the respondents these two are different channels and if that is accepted to be correct then the respondents would be unjustified in asking one man from one channel to discharge the work of another channel. A junior employee/subordinate employee can be asked to discharge the work of higher office but the office should be in the same channel. In the present matter, according to the respondents, the channels are different.
9. The Chief Executive Officer, present in Court, says that to generate and augment revenue he required consent of the employees/Sanitary Supervisors and he has given them charge of the office of the Tax Collector without any additional burden upon the Corporation. It the earlier stand of the respondents is correct, then this action of the respondent Chief Executive Officer is bad.
10. This is to be seen from the records that in the year 1976 under Annexure-6 three persons from the cadre of Sanitary Supervisor and peon were promoted and regularised as Tax Collectors. Undisputedly, Parmanand Singh and Madan Lal are continuing to work on the said post. Similarly, under Annexure-7 one Tapeshwar Singh with effect from 3.2.1995 is continuing to work as Tax Collector and his services have also been regularised. Despite knowledge of these facts, respondent Corporation has not taken any action against those persons. Inaction or non-action on the part of the Corporation would lead to a irresistible conclusion that the Corporation accepts the factual aspect that the Sanitary Supervisor can be promoted, absorbed or regularised in the cadre of Tax Collector. It is also to be seen that on an earlier occasion an identical matter came to this Court in Surya Kant Jha v. The Administrator, Patna Municipal Corporation and Ors., CWJC No. 10584 of 2000. In the said matter vide order dated 13.5.2002 this Court repelled the contention of the respondents and observed as under :
“I am unable to agree. Though itself describing them as irregular, the Corporation appears to be in the habit of making such promotions and the last one was made in the year 1995. Though office order No. 27/95 was directed to be kept in abeyance, still the eight employees named therein are allowed to work as Tax Collectors and are treated as Tax Collectors by the Corporation.”
11. This is to be noted that the office order No. 27/95 referred to by the High Court in the earlier judgment is the order under which the petitioner and seven others were promoted. On one side, this Court had directed the respondents to consider the cases of such persons and regularise their services and at the same time the respondents contrary to the directions of this Court are trying to pass one or the other illegal orders. At this stage, it would also have to be seen by this Court that CWJC No. 10584 of 2000 was filed in the year 2000 and the order No. 27/95 was brought on record of the said writ application. To take the advantage of the situation, order No. 27/95 appears to have been recalled on 3.4.2002, a few days before the final orders were passed in CWJC No. 10583 of 2000. The High Court in the said matter observed that having regard to the facts of the said case and taking into consideration that the said petitioner was working for 18 long years, denial of his regularisation against that post would be wholly unfair, unjust and unreasonable. This Court directed the competent authority in the Corporation to regularise the petitioner on the post of Tax Collector and to give him the higher pay scale admissible to that post. The respondents do not say in the counter-affidavit that the order passed in CWJC No. 10584 of 2000 was ever challenged before the higher forum. If this order is allowed to attain finality, then the respondents cannot be allowed to say that any person who has been promoted from the cadre of Sanitary Supervisor now cannot be absorbed in the cadre or be promoted to the cadre or be regularised in the cadre of Tax Collector. If the High Court’s order was in favour of one then this Court would be justified in observing the said order for all the times to come.
13. It is also to be seen that the order contained in Annexure-1 was passed without issuing any notice to the petitioner. First of all, that order was kept in abeyance with effect from 11.7.1997 but the petitioner was allowed to continue on the post and according to the counsel for the petitioner, the petitioner is still continuing on the post.
14. It does not appear from Annexure-1 that before passing this order the Administrator, Patna Municipal Corporation ever issued notice to show cause to the petitioner, gave him any opportunity of hearing and only thereafter passed the order. The order if examined on the touchstone of natural justice, then it would again fail. In any case, in the light of the judgment of this Court in the matter of Surya Kant Jha v. The Administrator, Patna Municipal Corporation and Ors., CWJC No. 10584 of 2000, decided on 13.5.2002, the order contained in Annexure-1 memo No. 289 dated 3.4.2002 cannot be allowed to stand. It deserves to and is accordingly quashed.
15. The respondents Corporation through its competent authority shall consider the case of the petitioner and all such other persons who were promoted or were given charge of post of Tax Collector. It is, however, made clear that the cases of all such persons who have simply given their consent and agreed to work as Tax Collector would not be entitled to that facility. The respondents, I repeat, would follow the observations made in the judgment of the learned single Bench in the matter to put their house in order. They should consider the cases of their employees, either regularise them or take action in accordance with law. In any case, as the petitioner is working on the said post for 17 years, in accordance with the directions issued earlier by this Court the respondents will regularise the petitioner on the post of Tax Collector and give him the higher scale admissible to that post. Orders should be passed within three months.
16. During the course of arguments, the Chief Executive Officer so also the learned counsel for the Corporation submitted that the staffing pattern deserves to be restructured because earlier scavengers were appointed in large numbers and now with the change in the time requirement is less, therefore, the respondents be allowed to restructure the staffing pattern; some posts out of lot by promoting them or asking them to work in accordance with law so that without suffering any additional burden the respondent Corporation may get best results.
17. This Court can simply express its hope in the matter but would not issue any positive direction because that is not the subject-matter in this writ application.