Supreme Court of India
SHRIDHAR SON OF RAM DULARversusNAGAR PALIKA, JAUNPUR AND ORS.
- Citation
- 1989 INSC 352
- Decided
- 17 November 1989
- Disposal
- Appeal(s) allowed
- Bench
- K N SINGH
Holding
Section 71 did not empower the State to issue such service‑regulating directions, the 1950 Government Order was ultra vires and not binding, and the Commissioner’s order was void for lack of hearing, rendering the appellant’s direct recruitment appointment valid.
Summary
The Municipal Board of Jaunpur advertised for the post of Tax Inspector, allowing both internal revenue employees and outsiders to apply. The senior Tax Collector, Respondent No. 3, refused to attend the interview, claiming the post should be filled only by promotion under a Government Order dated 10‑April‑1950. The Board appointed the appellant, Shridhar, and the Commissioner later set aside this appointment, relying on the alleged direction that the post must be filled by promotion. The High Court upheld the Commissioner’s order, but the Supreme Court held that Section 71 of the U.P. Municipalities Act, 1916 did not empower the State to issue such a direction and that the 1950 order was ultra vires and not binding on the Board. Moreover, the Commissioner’s order was void for violating the principles of natural justice by not affording a hearing. Consequently, the Supreme Court allowed the appeal, set aside the orders of the Commissioner and the High Court, and confirmed the validity of the appellant’s appointment by direct recruitment.
Issues considered
- Whether Section 71 of the U.P. Municipalities Act, 1916 confers power on the State Government to issue directions regulating conditions of service of municipal employees.
- Whether the Government Order dated 10‑April‑1950, requiring the post of Tax Inspector to be filled exclusively by promotion, is within the statutory power and binding on the Municipal Board.
- Whether the Commissioner’s order setting aside the appellant’s appointment without affording a hearing violates the principles of natural justice.
Legislation cited
Subjects
municipal service conditionspromotion vs direct recruitmentsection 71natural justiceultra viresgovernment orderappointmentservice law
Judgment
SHRIDHAR SON OF RAM DULAR A
,
v.
NAGAR PALIKA, JAUNPUR AND ORS.
NOVEMBER 17, 1989
B
[K.N. SINGH AND N.M. KASLIWAL, JJ.]
U.P. Municipalities Act, 1916: Section 71-Scope of-Whether
confers power on State Govt. to issue directions, regulating the condi-
tions of service of Municipal Employees.
Tax Inspector-Appointment of-Whether to be exclusively filled C
by promotion-Government's Order dated J0.4.50--Applicability of.
Practice and Procedure: Judicial discipline-Single Judge disag-
reeing with another Single Judge-Matter should be referred to a Larger
Bench.
D
Administrative Law-Principles of natural justice-Violation
of-Effect.
The Municipal Board, Jaunpur invited applications for the post of
Tax Inspeetor. The employees working in the Revenue Department of
the Municipal Board were eligible for consideration alongwitb the out-
siders. 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. F
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 appel-
lant challenged the Commissioner's order before the High Court by G
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 appel-
lant's appointment was made in violation of the Government's Order
dated J0.4.50. Hence this appeal.
H
201
202 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.
A Allowing the appeal and setting aside the order of the High Court,
this Court,
HELD: J. The orders of the High Court and the Commissioner
are not sustainable in law. [208B]
B • I. I. It is a well-settled principle of judicial discipline 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~tive deci-
sion. But in the instant case, the learned Single Judge of the High Court
acted contrary to the well established principles of judicial discipline in
ignorning those decisions. [205B-C]
c 2. Section 7 J of the U.P. Municipalities Act, 1916 before its
amendment in !964 did not confer power on the State Government to
issue any direction regulating the conditions of service of Municipal
employees. [205D]
D Ramesher Prasad and Urs. 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 !6.9.66 and lnder Bahadur v. Municipal Board, Mirza-
pur and Ors.; Writ petition No. 235 of 1970 dated 20.10.1972 approved.
2. l Even after conceding supervisory power to the State Govern-
E ment to issue directions laying down conditions of service of Municipal
employees, there are no directions in the Government Order dated
J0-4-50 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 l
F
2.2 In the instant case, the Municipal Board gave opportunity to
its employees working in the revenue class of service to appear for selec-
tion in competition with outsiders. Respondent No. 3 however did not
avail the opportunity for which he himself is to be blamed. The Munici-
pal Board acted within its jurisdiction in making appointment to the
G 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]
H 3. It is an elementary principle of natural justice that no person
SHRIDHAR v. NAGAR PALIKA [SINGH, J.] 203
should be condemned without bearing. The order of appointment con-
A
ferred a vested right in the appellant to bold 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
natnral justice is rendered void. In the instant case, there is no dispute
that the Commissioner's order had been passed without affording any
opportnnity of hearing to the appellant. Therefore the order was illegal B
and void. The High Court committed serious error in upholding the
Commissioner's order setting aside the appellant's appointment with-
out giving any notice or opportunity to.him. [2U7G-H; 2U8AJ
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2967
of 1986.
c
From the Judgment and Order dated 28.7.1986 of the Allahabad
High Court in W.P. No. 1793 of 1980.
; Salish Chandra, R.B. Mehrotra, S.K. Mehta, Atul Nanda and
Aman Vachher for the Appellant. D
J.M. Khanna, R.B. Misra and Ms. Anil Katiyar for the
Respondents.
The Judgment of the Court was delivered by
E
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 challeng-
in.g the order of the Commissioner Varanasi Division dated February
13. 1980 setting aside the order of Municipal Board, Jaunpur appoint-
ing the appellant as Tax Inspector. F
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
Derartment of the Municipal Board were eligible for consideration
along with outsiders. Harl Mohan Respondent No. 3 who was the G
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 appellant, and appointed H
204 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.
him to the post of the Tax Inspector by the order dated 11.3.78.
A 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 representation to the Prescribed Authority i.e. the Commis-
sioner Varanasi challenging appellant's appointment to the post of Tax
B Inspector. The Commissioner by his order dated 13.2.80 set aside the
order of the Municipal Board and cancelled the appellant's appoint-
ment on the ground that the Respondent No. 3 was entitled to promo-
tion 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
Commission. A learned Single Judge (B.D. Agarwal, J.) of the High
C 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.
D After hearing learned counsel for the parties at length we are of
the opinion that the High Court committed manifest error in uphold- {".
ing the order of the Commissioner. The basic question which arises for
consideration is whether the post of Tax Inspector, under the provi-
sion of the U .P. Municipalities Act, 1916 (hereinafter referred to as
the 'Act') or any rules framed thereunder or under the Government
E 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 pro-
ceeded 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
F 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, there-
fore, the appellant's appointment was rendered illegal. The High
0 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, Pilibhit, AIR 1958
All. 363. The learned counsel further urged that the aforesaid deci-
H sion was approved by two other learned Judges o( the High Court in
SHRIDHAR v. NAGAR PALIKA (SINGH. J.] 205
Ram Kripa/ Garg v. State of U.P., Writ Petition No. 4556 of 1965 dated
16,9.66 and Jnder Bahadur v. Municipal Board, Mirzapur and Others, A
Writ Petition No. 235 of 1970 dated 20. 10. 72 holding that t!:ie Govern-
ment 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 B
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 ~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. c
Section 71 of the Act before its amendment in 1964 did not
confer power on the State Government to issue any direction regulat-
ing the conditions of service of Municipal employees-. The view taken
by the High Court in Ramesher Prasad case and followed in other two D
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 direc-
tions contained in Government Order dated 10.4.50 were binding on
the Municipal Board. We have gone through the aforesaid Govern-
ment Orders and Notifications but we find nothing therein to clothe
the Government Order dated 10.4.50 with statutory character. A E
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 Com- F
missioner'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 supervisory power to the
State Government to issue directions laying down conditions of service G
of Municipal employees, we do not find any directions therein requir-
ing a Municipal Board to fill the post of Tax Inspector only by promo-
tion 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 H
Order read as under:
0
206 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.
"5. In the case of the posts mentioned in the annexure
A 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 contained in
the above paragraphs. The prevailing practice of transfer-
ring at random officials in one class of service to another
B should be stopped.
6. When direct recruitment to any post specified in the
annexure had to be made it will be governed by the eddca-
tional qualifications shown therein. Recruitments to posts
from outside should, however, as far as possible be made
by inviting applications through advertisement in the press
c 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 Secretary, as the case mqy be,
and the principal administrative officer of the department
D 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 r
;"
r
competent authority."
In order to ascertain the correct scope of the aforesaid para-
E graphs 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 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 I0.4.50 pre-
F scribing munimum 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 qualifications prescribed for the higher post. Paragraph 3
G 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
H Clerks. Paragraphs 7 and 8 of the Order do not contain any directions
SHRIDHAR v. NAGAR PALIKA [SINGH, J.} 207
·. with regard to the question of promotion. Paragraph 5 as quoted
A
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 pre-
scribed for the higher post and the higher post should not be filled by
transferring employees belonging to other class of service. Paragraph 6 B
directed that in case of direct recruitment to any post as specified in
the annexure of the Otder 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 C.
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 appoint-
ment to the post of Tax Inspector either by direct recruitment or by D
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 E
for which he himself is to be blamed. The Munieipal 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 F
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 opportunity to him. It is an G
elementary principle of natural justice that no person should be con-
demned without hearing. The order of appointment conferred a vested
right in the appellant to hold the post of Tax fu~pector, 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 H
208 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.
been passed without affording any opportunity of hearing to the appel-
lant therefore the order was illegal and void. The High Court commit-
ted 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.
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.
(
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