Allahabad High Court
Dinesh Kumar Kaushik vs State Of U.P. & Others on 9 January, 2012
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 33 Case :- WRIT - A No. - 31 of 2012 Petitioner :- Dinesh Kumar Kaushik Respondent :- State Of U.P. & Others Petitioner Counsel :- B.C. Rai Respondent Counsel :- C.S.C.,V.P. Mathur Hon'ble Sudhir Agarwal, J.
1. Heard Sri B.C. Rai for petitioner, learned Standing Counsel for respondents 1 and 2 and Sri R.P. Srivastava for respondent no. 3 and perused the record.
2. Sri Rai has basically assailed the validity of 20th Amendment of U.P Palika Services (Centralized) Services Rules, 1966 (hereinafter referred to as "Rules, 1966") and contended that the same is ultra vires of Section 300 and 300-A of U.P. Municipalities Act, 1916 (hereinafter referred to as "Act, 1916") read with Section 23 of General Clauses Act, 1904 (hereinafter referred to as "Act, 1904"). He has also assailed the orders dated 5.9.2011 and 12.10.2009 (Annexures 13 and 15 to writ petition) whereby Director, Local Bodies has declined to accept the claim of petitioner for promotion on the post of Executive Officer being inconsistent with the existing Rules. Lastly he has sought a mandamus directing respondents not to proceed ahead with recruitment process initiated through U.P. Public Service Commission (hereinafter referred to as "UPPSC") pursuant to requisition dated 12.7.2007 and 28.9.2008 on the post of Executive Officer, Nagar Panchayat through direct recruitment.
3. Facts in brief giving rise to the present dispute are as under.
4. Petitioner was appointed as Clerk on 5.7.1988 in Town Area, Dasna, District Ghaziabad. It is not in dispute it was a Local Body constituted under U.P. Town Areas Act, 1914 (hereinafter referred to as "Act, 1914"). Petitioner claims that a Class III employee of Town Area was entitled to be considered for promotion to the post of Executive Officer for which Rules provided 50 per cent recruitment by promotion which has been amended now in a manner that now petitioner is excluded from the field of eligibility and zone of consideration in a wholly illegal manner, and, particularly when the amendment has not been made in accordance with the procedure prescribed in law. He further contended that the aforesaid Amendment is ultra vires and can not affect the vested rights of petitioner to be considered for promotion to the post of Executive Officer.
5. Before coming to detailed discussion of the issued raise above, it would be appropriate at this stage to have a bird eye view of statutory provisions relevant in the present case.
6. There are two types of statutory provisions pertaining to local bodies which need be considered herein. One is relating to 'Municipality' and another is 'Town Area'.
Town Area:
7. United Province Town Areas Act, 1914 (U.P. Act No. 2 of 1914) i.e. Act, 1914 was enacted under Section 40 of Indian Councils Act, 1861 with the assent of Lieutenant Governor on 24.12.1913 and Governor General on 25.2.1914. It was made initially for making better provisions for sanitation, lighting and improvement of Town Areas in the 'United Province of Agra and Oudh'.
8. The term "Town Area" was defined in Section 2(8)which read as under:
"2. (8) "town area" means any local area which the State Government has declared or defined under Section 3 to be a town area;"
9. Section 3 talks of declaration etc. of "Town Areas" and read as under:
"3. Declaration and definition of town areas.-(1) The State Government may, by notification in the Official Gazette-
(a) declare any town, village, suburb, bazar or inhabited place to be a town area for the purpose of this Act and may unite, for the purpose of declaring the area constituted by such union to be a town area, the whole or a portion of any town, village, suburb, bazar or inhabited place with the whole or a portion of any other town, village, suburb, bazar or inhabited place;
(b) define the limits of any town area for the like purpose;
(c) include or exclude any area in or from any town area so declared or defined; and
(d) at any time cancel any notification under this section;
Provided that an agricultural village shall not be declared, or included within the limits of a town area.
(2) The decision of the State Government that any inhabited area is not an agricultural village within the meaning of the proviso to sub-section (1) of this section shall be final and conclusive, and the publication in the Official Gazette of a notification declaring such area to be a town area or within the limits of a town area shall be conclusive proof of such decision."
10. With respect to employees of town area, provisions were made in Section 9 to 13 which read as under:
" 9. Establishment list.- (1) The committee shall, as soon as may be practicable, prepare an establishment list of the permanent staff of tax collectors and other servants necessary for carrying out the purposes of this Act and of the duties, salary and allowance to be attached to the respective posts entered therein.
(2) The committee shall, when so required by the prescribed authority or if none is appointed the District Magistrate from time to time, revise the establishment list prepared under sub-section (1).
(3) Every establishment list prepared under sub-section (1) or revised under sub-section (2) shall be subject to confirmation by the prescribed authority or if none is appointed, the district magistrate and in the event of that officer refusing to confirm any establishment list, it shall be altered by the committee under his direction.
10. Appointment and control of permanent staff.- (1) The chairman shall appoint the permanent staff prescribed in the establishment list, subject in the case of the bakshi to the approval of the prescribed authority or if none is appointed the district magistrate.
(2) The chairman may find, suspend or dismiss any member of the permanent staff so appointed, subject in the case of the dismissal of any member of the staff whose pay exceeds Rs. 30 a month to confirmation by the prescribed authority of if none is appointed the district magistrate, who shall give the member of the staff who has been so dismissed an opportunity of representing his case.
11. Appointment and control of temporary staff.- The committee may appoint such temporary staff as it may require to supplement the permanent staff on such remuneration as it may think proper.
11A. Appointment of Accounts Officers.- A committee, if so required by the State Government shall employ an Accounts Officer nominated by the State Government either exclusively or jointly, with one or more local authorities on such terms and conditions as may be prescribed by the State Government.
12. Prohibition of unauthorized service.- Except in the matter prescribed by Sections 9. 10 and 11, a person shall not be appointed a town servant or employed as such.
13. Town servants to be deemed public servants.- Every town tax collector or other town servant permanently or temporarily appointed under this Act shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code."
11. Section 38 conferred power upon State Government to extend to all town areas or any town area or to any part of a town area, any enactment for the time being in force in any Municipality in Uttar Pradesh, subject to such restrictions and modifications as it thinks fit. The effect of such extension, if any, would be that provisions of Act, 1914 would cease to have effect in such area so long as extension continue to remain enforced.
12. Section 39 confers power upon State Government to make rules to carry out purposes of the Act, 1914.
Municipality:
13. For governing Municipalities in this State, U.P. Municipalities Act, 1916, i.e. Act, 1916 was promulgated which came into force on 1.7.1916. Regarding staff of Municipalities, provisions have been made in Section 57 to 80 of Act, 1916.
14. In the Present case, matter relates to Centralised Services in Municipality which are governed by provisions of Section 69-B of Act, 1916 and the Rules framed thereunder.
15. Section 69-B of Act, 1916 as, amended by U.P. Act No. 5 of 1984 and U.P. Act No. 15 of 1983 read as under:
"69-B Centralization of services of Municipal Officers and servants.- (1) Notwithstanding anything contained in Sections 57, 59, 65 to 68, 69, 69-A, 71, 74, 79 and 80, the State Government may at any time, by rules provide for creation of one or more services of such officers and servants as the State Government may deem fit, common to all or some Municial Boards or to the Municipal Boards, Mahapalikas and the Jal Sansthans in the State and prescribe the methods of recruitment and conditions of service of persons appointed to any such service.
(2) Where any such service is created, officers and servants serving on the posts included in the service may, if found suitable, be absorbed in the service, provisionally or finally and the services of others shall stand determined, in the prescribed manner:
Provided that such absorption in the service shall not operate as a bar against holding or continuing to hold any disciplinary proceedings against a member of the service in respect of any act committed before the date of such absorption. (3) Without prejudice to the generality of the provisions of sub-sections (1) and (2), such rules may also provide for consultation with the State Public Service Commission in respect of any of the matters referred to in the said sub-sections. (4) Notwithstanding anything contained in the preceding sub-sections (1), (2) and (3) or any other provision of the Act, the State Government may by rules also provide for regularization of temporary and ad hoc appointments made before the prescribed date, without consultation with the State Public Service Commission."
16. Under Section 69-B, Rules for Centralized Services of Municipalities were framed applicable to Municipalities as well as Nagar Mahapalika titled as U.P. Palika (Centralized) Service Rules, 1966 (hereinafter referred to as "Rules, 1966") published in the Gazette on 9.7.1966. Rule 3 of Rules, 1966 as substituted by amendment notification dated 3.5.1983 provided several Centralised Services formed in Palikas, namely, Nagar Mahapalikas and Nagar Palikas. There were 23 centralised services therein which are as under:
1. U.P. Palika Administrative (Superior) Services
2. U.P. Palika Administrative (Subordinate) Service
3. U.P. Palika Revenue (Superior) Service
4. U.P. Palika Revenue (Subordinate) Service
5. U.P. Palika Allopathic Medical and Health Service (Men.)
6. U.P. Palika Allopathic Medical and Health Service (Women)
7. U.P. Palika Homeopathic Chikitsa Service
8. U.P. Palika Ayurvedic Chikitsa Service
9. U.P. Palika Unani Service
10. U.P. Palika Public Health Service
11. U.P. Palika Veterinary Service
12. U.P. Palika Engineering (Superior) Service
13. U.P. Palika Engineering (Subordinate) Service
14. U.P. Palika Water works Electrical and Mechanical Engineering (Superior) Service.
15. U.P. Palika Water works Electrical and Mechanical Engineering (Subordinate) Service.
16. U.P. Palika Arboriculture (Superior) Service
17. U.P. Palika Arboriculture (Subordinate) Service
18. U.P. Palika Accounts (Superior) Service
19. U.P. Palika Accounts (Subordinate) Service
20. U.P. Palika Audit (Superior) Service
21. U.P. Palika Audit (Subordinate Service)
22. U.P. Palika Public Relations Service
23. U.P. Palika Ministerial Service.
17. In the present case, we are concerned with the Administrative Services, namely, U.P. Palika Administrative (Superior) Services and U.P. Palika Administrative (Subordinate) Services. The respective posts which constituted the aforesaid two services under Rule 3 of Rules, 1966 as amended in 1983 read as Under:
1. U.P. Palika Administrative (Superior) Services:
(i) Up Nagar Adhikaris of Mahapalikas
(ii) Sahayak Nagar Adhikaris of Mahapalikas
(iii) Executive Officers of Class I Municipal Boards
(iv) Executive Officers of Class II Municipal Boards
(v) Secretaries of Class I Municipal Boards
(vi) Anubhagiya Adhikaris of Nagar Mahapalika, Kanpur
2. U.P. Palika Administrative (Subordinate) Services:
(i) Executive Officers of Class III Municipal Boards
(ii) Executive Officers of Class IV Municipal Boards
(iii) Secretaries of Class II Municipal Boards
(iv) Secretaries of Class III and IV Municipal Boards
18. Rule 6 talked of source of recruitment, absorption and determination of service of existing officers and servants. This Court is concerned with Sub-rule (1) in the present case. This Rule 6 (1) reads as under:
"6. Source of recruitment, absorption and determination of service of existing officers and servants.- (1) Subject to the provisions of sub-rule (2)-
(i) the posts mentioned in Schedule I shall be filled in by promotion in the manner laid down in Rule 20;
(ii) the posts mentioned in Schedule II shall be filled in by direct recruitment in the manner laid down in Part V, of these Rules;
(iii) the posts mentioned in Schedule III shall be filled in equally from two sources and in the manner mentioned above, so however, that the odd post, if any, shall be filled in by promotion:
Provided that if suitable candidates are not available in the number required under this sub-rule for recruitment by promotion or by direct recruitment, as the case may be, the deficiency may be made good from the other of the two sources or a temporary appointment may be made by deputation from amongst the officers serving under Government."
19. Schedule I includes Up Nagar Adhikaris of Mahapalika being part of U.P. Palika Administrative (Superior) Service; and Executive Officers of Class IV and Secretaries of Class II, III and IV Municipal Boards constituted part of U.P. Palika Administrative (Subordinate) Services, which are to be filled in by promotion in the manner laid down in Rule 20.
20. Schedule II talks of certain services with which noting in this case has any relevance, therefore, this Court deem fit to skip it.
21. Schedule III refers to certain posts which are liable to be filled in equally from both the sources, namely, direct recruitment and promotion. If we exclude the posts covered by Schedule I in respect to U.P. Palika Administrative (Superior) Services and U.P. Palika Administrative (Subordinate) Services. The posts remained to form Schedule III comprising U.P. Palika Administrative (Superior) Service are, (i) Sahayak Nagar Adhikaris of Mahapalikas, (ii) Executive Officers of Class I Municipal Boards, (iii) Executive Officers of Class II Municipal Boards, (iv) Secretaries of Class I Municipal Boards, (v) Anubhagiya Adhikaris of Nagar Mahapalika, Kanpur.
22. These are the posts in Schedule III which are to be filled in equally from two sources namely direct recruitment and promotion. If suitable candidate is not available either for direct recruitment or promotion, the deficiency may be made good from other source or a temporary appointment may be made by deputation from amongst the Officers serving under Government.
23. The only service in U.P. Palika (Subordinate) Services which comes in Schedule III is "Executive Officer of Class III Municipal Boards".
24. In the similar manner, State Government sought to create Centralised Services for Town Areas and Notified Areas. Provisions of Section 69-B were extended to Town Areas and Notified Areas and as a result thereof, as also in pursuant thereto, in purported exercise of powers under Section 39 of Act, 1914 read with Section 69-B and 296 of Act, 1916, State Government framed U.P. Town Area and Notified Area Committees (Centralized) Services Rules, 1976 (hereinafter referred to as "Rules, 1976").
25. Rule 3 of Rules, 1976 constituted two services, namely:
(i) U.P. Town Area and Notified Area Committees Administrative Services:
(a) Bakshi/Secretaries of Notified Area Committees
(b) Superintendents of the Notified Area Committees
(c) Bakshis or Secretaries of Town Area Committees
(ii) U.P. Town Area and Notified Area Committees public works services:
Overseers of Town Area and Notified Area Committees
26. Rule 6 (1) (i) provided that the posts mentioned in Rule 3 of Rules, 1976 shall be filled in by promotion in the manner laid down in Rule 20 thereof. However, in respect to newly created Town Areas and Notified Areas, it is provided that the posts in such Areas shall be filled in by "direct recruitment" as laid down in Part-V which consisted of Rule 15 to 19.
27. Though the posts of Bakshis/ Secretaries etc. in Town Areas were made promotional posts but from which source or cadre promotion would be made, was not specifically mentioned in Rules, 1976. The State Government consequently issued order dated 28.11.1990 clarifying the position as also directing the concerned officials to consider employees working in Non-Centralised Services in Town Areas and Notified Areas for promotion for the Centralised Services of Baskhis/ Secretaries etc in Town Areas/ Notified Areas for which it also required the Director, Local Bodies to get prepared a seniority list of Non Centralised employees in respective Areas. The District Magistrates concerned were required to inform persons eligible for consideration for promotion on the post of Secretaries/ Bakshi of Town Area Committees and Notified Area Committees.
28. Since petitioner was appointed as Clerk in Town Area Dasna, District Ghaziabad on 5.7.1985 and was working in a Non centralised Ministerial Cadre, pursuant to Government Order dated 28.11.1990, Chairman, Town Area Committee, Dasna recommended petitioner's name treating him eligible and suitable, for promotion to the post of Secretary in Town Area/ Notified Area.
29. However, the fact remains that consideration could not be materialized and did not proceed thereafter. In the meantime, there came to be enforced a major Constitutional amendment, i.e. Constitution (Seventy-Fourth Amendment) Act, 1992 which inserted Part IX and IX-A in the Constitution. For the present case, this Court is concerned with Part IX-A which deals with "Municipalities".
30. The term "Municipality" was defined in Article 243P (e) as under:
"(e) 'Municipality' means an institution of self-government constituted under article 243Q"
31. Constitution of "Municipalities" as defined in Article 243P (e) is provided in Article 243Q which reads as under:
"243Q. Constitution of Municipalities.--(1) There shall be constituted in every State,--
(a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area;
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part:
Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township.
In this article, "a transitional area", "a smaller urban area" or "a larger urban area" means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part."
32. In order to give effect to the Constitutional amendment relating to Municipalities, the Provincial Legislature enacted U.P. Act No. 12 of 1994, i.e. U.P. Urban Self Government Amendment Act, 1994 (hereinafter referred to as "Amendment Act, 1994") which received assent of Governor on 30th April, 1994, published in Gazette Extraordinary, Part 1, Section (Ka), dated 2nd May, 1994 at pages 37 to 76 and came into force on 30.5.1994 vide U.P. Government Gazette Notification dated 24.5.1994 issued under Section 1(2) of Amendment Act, 1994.
33. Section 2 to 71 of Act, 1994 deals with the amendments made in U.P. Nagar Mahapalika Adhiniyam, 1959 which this Court can skip having no relevance to the dispute in the present case.
34. The amendments made in Act, 1916 are contained in Sections 72 to 162 of Amendment Act, 1994. Section 3 was substituted by new Section. It contained provision with respect to "Transitional Area" and "Smaller Urban Area".
35. A Town Area under Act, 1914 came to be declared as a 'transitional area' vide newly substituted Section 3(2) (b) of Act, 1916 as amended by Amendment Act, 1994. Section 3-A inserted by Amendment Act, 1994 provided for constitution of a "Municipality" which would be known as 'Nagar Panchayat' for every 'Transitional Area' namely concerned Town Area. By inclusion of Town Areas under Act, 1916 the utility of Act, 1914 vanished and hence, the Act, 1914 was repealed by Section 163 of Amendment Act, 1994.
36. The result of the aforesaid Amendment was that "Town Area" became a kind of 'Municipality' known as 'Nagar Panchayat" and henceforth to be governed by Act, 1916.
37. The immediate effect of aforesaid amendment, as also suggested by Sri B.C. Rai, was that Secretaries of Town Area Committee came to be known as Executive Officer, Nagar Panchayat and Junior Engineer, Palika Centralised Services would become Junior Engineer, Nagar Panchayat concerned. This is not correct strictly and I shall demonstrate hereafter.
38. I find no reason to subscribe the aforesaid view inasmuch Repeal of Act, 1914 was without any exception, reservation or condition. After repeal of aforesaid Act, it would be difficult to subscribe the view that Rules, 1976 would continue to govern persons concerned despite repeal of the Principal Act under which Rules, 1976 seeks their genesis and foundation. The repeal of an enactment completely wipe out the law which is the subject matter of repeal. It is to be deemed as having existed only for those actions which were commenced, prosecuted and concluded. But pending action(s) cannot continue (See: Sylhet Cooperative Central Bank Ltd. Vs. Dhirendra Nath De AIR 1958 Bom. 507).
39. In a subsequent decision in Waheet Hasan Kahan Vs. State AIR 1960 Bom. 299, it was held, when an Act is repealed, it is the same thing as if it had never existed except with reference to such parts as are saved by repealing statute. Even if this Court conceive that the Officers of Town Area would have continued, the process of promotion of clerical Staff as Bakshi/Secretary initiated prior to the aforesaid amendment, under the provisions of Rules, 1976 read with Act, 1914, would come to an end and has to cease. In order to bring in posts which were made "Centralised Service", existing in the erstwhile Town Area Committees and Notified Areas Committee, within the province of Nagar Panchayats, and to make it consistent with the provisions of Act, 1916 read with Rules, 1966, the rules framing authority promulgated U.P. Palika Centralised Service 20th Amendment Rules, 1996 (hereinafter referred to as "Amendment Rules, 1996").
40. A draft notice inviting objections from public was issued on 1.5.1996.
41. A copy of present notification has been filed as Annexure 5 to writ petition. Para 1 and 2 of said notification read as under:
^^la0 1096&@ ukS&4&96&mRrj izns'k uxj fuxe vf/kfu;e] 1959 ¼mRrj izns'k vf/kfu;e la[;k 2 lu~ 1959½ dh /kkjk 112&d vkSj la0izk0 uaxj ikfydk vf/kfu;e] 1916 ¼la0izk0 vf/kfu;e la[;k 2 lu~ 1916½ dh /kkjk 69&[k ds v/khu 'kfDr dk iz;ksx djds] jkT;iky] ftl fu;ekoyh dks cukus dk izLrko djrs g]Sa mldk fuEufyf[kr izk:i 1959 ds mDr vf/kfu;e dh /kkjk 540 dh mi/kkjk ¼2½ vkSj 1916 ds mDr vf/kfu;e dh /kkjk 300 dh mi/kkjk ¼1½ dh vis{kkuqlkj leLr lac) O;fDr;ksa dh lwpuk ds fy, vkSj blds laca/k esa vkifRr;ka vkSj lq>ko vkefU=r djus dh n`f"V ls ,rn~}kjk izdkf'kr fd;k tkrk gSA 2& vkifRr;ka vkSj lq>ko] ;fn dksbZ gks] lfpo] mRrj izns'k ljdkj] uxj fodkl vuqHkkx&4] fodkl foHkkx] y[kuÅ dks lacksf/kr fd, tk ldrs gSaA dsoy ,slh vkifRr;ksa vkSj lq>koksa ij fopkj fd;k tk,xk tks mDr vf/klwpuk ds xtV esa izdkf'kr gksus ds fnukad ls ,d ekl dh vof/k ds Hkhrj izkIr gksaxsA^^
42. The later part of Gazette Notification contained a draft copy of Amended Rules, 1996 proposing amendment in Rules, 1966.
43. Besides above, a Government Order was also issued on 24.5.1994 (Annexure 4 to writ petition) stating that Amendment Act, 1994 would come into force on 30.5.1994 for which a separate notification is being issued and thereafter the effect in respect to the existing local bodies of different categories would be as under:
(a) All "Nagar Mahapalikas" would become "Nagar Nigam".
(b) All "Nagar Palikas" would become "Nagar Palika Parishad".
(c) All "Notified Area" and "Town Area Committees" would be called "Nagar Panchayat".
44. It also clarified that since all Nagar Panchayats, i.e. Town Areas and Notified Areas would then be governed by Act, 1916, the Secretaries and Junior Engineers in Centralised Services would be designated as Executive Officer, Nagar Panchayat and Junior Engineer, Nagar Panchayat respectively for which appropriate amendment in Rules, 1966 is also proposed.
45. Thereafter, a final Notification making amendment in Rules, 1966 was made vide Gazette Notification dated 28.6.1996 which came into force from the date of publication of the said Gazette. It's operative part reads as under:
^^la0 1096&I@ ukS&4&96& mRrj izns'k uxj fuxe vf/kfu;e] 1959 ¼mRrj izns'k vf/kfu;e la[;k 2 lu~ 1959½ dh /kkjk 112&d vkSj la0izk0 uaxj ikfydk vf/kfu;e] 1916 ¼la0izk0 vf/kfu;e la[;k 2 lu~ 1916½ dh /kkjk 296 dh mi/kkjk ¼2½ ds [kaM ¼d½ ds lkFk ifBr /kkjk 69&[k ds v/khu 'kfDr dk iz;ksx djds jkT;iky egksn; fuEufyf[kr mRrj izns'k ikfydk ¼dsUnzhf;r½ lsok ¼20oka laa'kks/ku½ fu;ekoyh] 1996 cukrs gSa ftls mRrj izns'k uxj fuxe vf/kfu;e] 1959 dh /kkjk 540 dh mi/kkjk ¼2½ vkSj la0izk0 uxj ikfydk vf/kfu;e] 1916 dh /kkjk 300 dh mi/kkjk ¼1½ dh vis{kkuqlkj vf/klwpuk la0 10@ 96 ukS&4&1996] fnukad 1 ebZ] 1996 ds lkFk izdkf'kr fd;k tk pqdk gSA^^
46. The above amendments, thus, re-classified and rationalized various posts within the ambit of U.P. Palika Administrative (Superior) Services and U.P. Palika Administrative (Subordinate) Services. Rules 3 (1) and (2) as amended vide Amendment Rules, 1996 of Rules, 1966 read as under:
^^¼1½ mRrj izns'k ikfydk iz'kklfud ¼izoj½ lsok% ¼,d½ uxj fuxeksa ds mi uxjkf/kdkjhA ¼nks½ fuxeksa ds lgk;d uxjkf/kdkjhA ¼rhu½ Js.kh& ,d dh uxj ikfydk ifj"knksa ds vf/k'kklh vf/kdkjhA ¼pkj½ Js.kh& nks dh uxj ikfydk ifj"knksa ds vf/k'kklh vf/kdkjhA ¼ikWp½ uxj fuxe dkuiqj ds vuqHkkxh; vf/kdkjhA ¼2½ mRrj izns'k ikfydk iz'kklfud ¼v/khuLFk½ lsok% ¼,d½ Js.kh&rhu dh uxj ikfydk ifj"knksa ds vf/k'kklh vf/kdkjhA ¼nks½ Js.kh&pkj dh uxj ikfydk ifj"knksa ds vf/k'kklh vf/kdkjhA ¼rhu½ uxj iapk;rksa ds vf/k'kklh vf/kdkjhA^^
47. It also made corresponding amendments in Schedules I and III referred to in Rule 6 (1) and (3) of 1966 Rules. With respect to U.P. Palika Administrative (Subordinate) Service, the Amendment Rules, 1996 substituted following in Schedule III:
^^mRrj izns'k ikfydk iz'kklfud ¼v/khuLFk½ lsok Js.kh&rhu vkSj pkj ds uxj ikfydk ifj"knksa ds vf/k'kklh vf/kdkjhA uxj iapk;rksa ds vf/k'kklh vf/kdkjhA^^
48. In substance, 1996 Amendment of Rules, 1966, included the post of Secretaries of erstwhile Town Area Committee/ Notified Area re-termed as "Nagar Panchayat" and it was made to be filled in 50 per cent by direct recruitment and 50 per cent by promotion as provided in Rule 6 (1) and (3) of Rules, 1966.
49. A confusion arose as to how promotion quota of Executive Officers, Nagar Panchayats would be filled in since there was no post lower in rank to the aforesaid posts in the same centralized service. In order to avoid any complication, a proposal was made by Director, Local Bodies for making an amendment in Rules, 1966 so as to keep the post of of Executive Officer, Nagar Panchayat in Schedule II instead of Schedule III so that under Rule 6 (1) (ii), the same may be filled in only by direct recruitment through Public Service Commission.
50. Learned counsel for petitioner also submitted that 1996 Amendment is illegal inasmuch the procedure prescribed for amendment has not been followed. This Court finds that as contemplated in Sub-section 1 of Section 300 of Act, 1916, draft amendment Rules were published in Gazette dated 1.5.1996 inviting objections from the public at large giving a month's time from the date of publication in the Gazette. It is not the case of petitioner that he filed any objection to the aforesaid proposed Amendments. It is thereafter the final amendment in the Rules was published in Gazette dated 28.6.1996 and, therefore it cannot be said that procedure laid down in Section 300 (1) has not been followed in making aforesaid amendment in the Rules. The contention otherwise is, thus, rejected.
51. Learned counsel for petitioner, however, placed reliance on certain authorities which, in my view, do not help him. First is Shri Kedar Nath Vs. Municipal Board, Gorakhpur 1956 ALJ 198 wherein with reference to Section 300 of Act, 1916 it was provided that expression 'previous publication' means publication in the manner laid down in Section 23 of U. P. General Clauses Act, 1904. There not only has to be a publication by the Board of the draft rules prepared by it under Section 133(3), but there must also be a publication by the State Government of the draft rules made by it and inviting objections and of the rules as finally approved by it.
52. In the present case, the draft rules have been published by State Government inviting objections and thereafter the same have been finalized. The procedure laid down in Section 300, therefore, in my view, has been substantially followed and observed. It is in these peculiar facts and circumstances of the case, rest of the authorities, namely, Municipal Corporation Bhopal Vs. Misbahul Hasan AIR 1972 SC 892, Durairaju Naidu Vs. State of Tamil Nadu AIR 1994 Mad. 68 and Man Singh Vs. State of Rajasthan AIR 1995 Raj. 276 also lend no support to petitioner in any manner.
53. Petitioner, however, claimed that he ought to be considered for promotion to the post of Executive Officer in Nagar Panchayat against 50 per cent promotion quota since there was no other post lower in rank constituting feeder cadre of promotion in the said centralised service, therefore, it could have been filled in from Clerical cadre of the concerned Nagar Panchayat.
54. The aforesaid claim of petitioner was negatived by Director, Local Bodies by office order dated 12.10.2009 observing that the promotion is permissible only to such persons working in centralised service constituting feeder cadre for promotion to the next higher post. Since the post of Clerk does not constitute centralised service under Rules, 1966, hence petitioner cannot be considered for promotion. Petitioner claimed to have filed an appeal against the aforesaid order of Director before Principal Secretary, Nagar Vikas on 29.5.2011 and thereafter has filed the present writ petition.
55. In my view, this argument, if accepted, would result in rewriting the provision.
56. Learned counsel for petitioner submitted that his fundamental right for consideration for promotion has been denied by the aforesaid amendment in the Rules. I do not find any merit therein.
57. There was no such right ever vested in petitioner. Admittedly, petitioner was appointed as Clerk on 5.7.1988 in Town Area Dasna, District Ghaziabad. It is admitted by both the sides that the post of Clerk in a Town Area was not a part of Centralised Service in Act, 1914 which was repealed with effect from 1.5.1994.
58. It is also true that in Rules, 1976, there was a provision for promotion, i.e. Rule 20, which reads as under:
"20. Vacancies to be filled in by promotion.- For the purpose of recruitment by promotion, a selection on the basis of inter se seniority subject to the rejection of unfit shall be made from amongst all eligible officials and a list of such officials shall be prepared."
59. However, the aforesaid provision as such does not refer to any particular service or post which could have been considered to be a feeder cadre for promotion to the post of Secretary/Bakshi in the erstwhile Town Area Committee of Notified Town Area Committee. The State Government tried to explain and clarify this gap by directing to consider clerical staff of Town Area Committee but before matter could have proceeded and got finalized, the very Act, 1914 stood repealed which had within its ambit Rules, 1976 also.
60. The power of State Government to make clarification in regard to interpretation of the provisions of Rules 1976 was conferred upon the State Government vide Rule 40 subject to the condition that either there be any dispute or difficulty arising regarding interpretation of any provisions of Rules, 1976 or the matter is not covered by the aforesaid Rules. Rules 40 reads as under:
"40. (1) If any dispute or difficulty arises regarding interpretation of any of the provisions of these rules, the same shall be referred to the Government whose decision thereon shall be final and conclusive.
(2) Matters not covered by these rules shall be governed by such orders as the State Government may deem proper to issue."
61. Once the Act, 1914 stood repealed, the subordinate legislation thereunder would also meet the same fate except to the extent any provision for saving etc. has been made. Nothing has been shown to this Court which may benefit the petitioner in any manner to support the contention raised above.
62. In 20th Amendment Rules, 1996, the post of Executive Officer, Nagar Panchayat was placed in Schedule III and a new schedule was added i.e. Schedule IV which was in respect to the Palika Hill Sub-Cadre.
63. Moreover, the procedure for promotion in Rules, 1966 was provided in Rule 20 and the relevant Sub-rule (1) thereof reads as under:
"20. Promotions.- (1) Principle for the purposes of recruitment by promotion, a selection on the basis of inter se seniority subject to the rejection of the unfit shall be made in consultation with the Commission from the lists of all eligible officers of the next lower grade of the same Centralised Service and list of officers fit for promotion shall be prepared in the matter laid down in sub-rules (2) to (11)."
64. It is nobody's case that Rule 20 Sub-rule (1) of Rules, 1966 has been amended. Petitioner does not constitute member of same Centralised Service working in the next lower grade so as to be entitled to be considered for promotion to the post of Executive Officer of Nagar Panchayat. The Act, 1914 stood repealed vide Section 163 of Amendment Act, 1994 and nothing has been placed thereafter to exist so as to support contention of petitioner that he had any semblance of right which continued in respect to his claim for consideration for post of Executive Officer in Nagar Panchayat.
65. In view thereof, neither there is any procedural irregularity nor the petitioner otherwise had any existing or vested right nor any interest of petitioner referable to any statutory provision has been deprived of by 20th Amendment Rules, 1996 and, therefore, I do not find any substance in the claim of petitioner to challenge vires of aforesaid provisions. That being so, the very basis of petitioner's claim for consideration for promotion to the post of Executive Officer in Nagar Panchayat also vanishes.
66. The writ petition, in the result, being devoid of merit, deserves to be dismissed. It is, accordingly, dismissed without there being any order as to cost.
Dt. 9.1.2012 PS