Jammu & Kashmir High Court
Manzoor Ahmed Baqal And Ors. vs Srinagar Municipality And Anr. on 5 August, 1999
Equivalent citations: (2000)IILLJ474J&K
JUDGMENT Bhawani Singh, C.J.
1. This appeal is directed against the Judgment of single Judge dated April 29, 1998 whereby the petition has been dismissed. Briefly, facts of the case are narrated hereafter.
2. Appellants Manzoor Ahmed Baqal, Ms. Qouser Jabeen, Mohammad Ayoub Alai, Ms. Yasmeen Haleem were removed from service vide order No. 1078 of 1995 dated November 15, 1995. They have challenged the order of termination on the ground that the same was violative of Articles 14 and 16 of the Constitution of India read with provisions of Jammu and Kashmir, Civil Services (Classification, Control and Appeal) Rules 1956 since the appellants were not heard before the impugned order was passed Consequently, they claim that the order is liable to be set aside and they be deemed to be in service with all consequential benefits.
3. Defence taken by the Srinagar Municipality is that their appointments are void having been made by the Executive Officer of the Municipality who was not competent to make such appointments, therefore, no right is vested in the appellants to hold these posts. Single Judge held that under Section 52 of the Municipal Act, the appointments could be made by the Council and in its absence by the Administrator. Since the Executive Officer was not competent to make the appointments, their termination was valid. On their claim for hearing prior to the taking of decision against them, it is held that they were not entitled to hearing since the appointments were void being in violation of Section 52 of the Municipal Act and Articles 14 and 16 of the Constitution. Aggrieved by this decision, this appeal has been filed by four appellants out of the eight, first two are Junior Assistants and latter two peons.
4. Shri A. Haqani, learned Counsel appearing for the appellants urged that under Section 52 of Municipal Act, Executive Officer has power to make appointments, therefore, appellants were validly appointed. Consequently, their services could not be terminated except in accordance with law. It is also contended that appointment orders of appellants plainly demonstrate that they were appointed regularly, therefore, they could not be styled Ad hoc and then terminated on that basis. This apart, action adverse to the appellants could not be passed without hearing the appellants which was not extended to them therefore, is non est being in violation of principles of natural justice. With this background, learned Counsel submits that termination order deserves to be set aside, appellants re-instated to posts held by them and entitled to other consequential benefits including the pay for the period they have remained out of service. On the other hand Shri B.A. Khan, learned Counsel for the respondents submits that appellants are not entitled to hearing since their appointments are void having been made by incompetent person. Under Section 52 of the Municipal Act, it can be made by the Council or the Administrator. Thus, appointments being void, right of hearing prior to taking of action of termination is excluded.
5. First of all we proceed to determine the authority which can make the appointments. Single Judge has not quoted Section 52 thereof fully with the result that matter has not been examined properly. Compilation, Municipal Act by Shri M.L. Sopory, Director Local Bodies in October 1979 from which learned Counsel for the respondents quotes Section 52 reads:
"Subject to the provision of this Act the Council may appoint such other officers and servants as are necessary for the efficient carrying out of the purposes of this Act and may assign to them such duties and pay them such salaries and allowances as it may determine from time to time:
Provided that while making appointments, the Council shall take into consideration the recommendation, if any, of the Executive Officer."
6. This provision is not correct and complete reproduction of Section 52 of Municipal Act contained in Jammu and Kashmir Laws (Vol VI, Fourth Edition amended upto ending December, 1989) placed before us by Shri A. Haqani, learned Counsel for appellants. In this compilation, Section 52 is as under:
"Subject to the provisions of this Act the council may appoint such other officers and I servants as are necessary for the efficient carrying out the purposes of this Act and may assign to them such duties and pay them such salaries and allowances as it may determine from time to time:
Provided that
(i) the power of appointing such officers and servants whose minimum monthly salary is less than one hundred but is not less than Rs. 75 shall vest in the President of the Council;
(ii) the power of appointing officers and servants subordinate to and working directly under the Medical Officer of Health whose monthly salary does not exceed Rs. 65 shall vest in the Medical Officer of Health;
(iii) the power of appointing all other officers and servants shall vest in the Executive Officer:
Provided further that while making appointments the Council or the President, as the case may be, shall take into consideration the recommendation, if any, of the Executive Officer."
In the absence of satisfactory material to the contrary, we have to depend on Government Publication and proceed to decide the controversy on that basis. Chapter VI deals with the Officers and servants of Srinagar Municipality. Section 49 reads that Executive Officer of the Council is appointed by the Government in consultation with the President of the Council concerned. His appointment can be renewed for a period not exceeding four years. Section 50 deals with powers of the Executive Officer and provides that the Executive Officer is Principal Executive officer of the Council and all other officers and servants of the Council are subordinate to him. He has a right to be present at the meeting of the Council or Standing Committee thereof and take part in the discussion thereat and make statement or explanation of facts at any time though he has no right to vote or move any proposition at any such meeting. Section 51 deals with those appointments which Government may make in consultation with the President of the Council such as Medical Officer of Health, the Executive Engineer, the Assistant Engineer, the Secretary, the Revenue and Khilafwarzi Officer, Horticulture Officer and Octroi Officer or any other gazetted officer required by the Council for whom the post stands.
7. Proper reading of Section 52 demonstrates that power of appointment of different categories of posts is vested in the council, President of the Council, Medical Officer of Health, and the Executive Officer. Appointment of officers and servants other than those which are to be made by authorities mentioned hereinabove is vested in him. In addition to that, the Council or the President as the case may be has to take into consideration the recommendation, if any, of the Executive Officer with respect to appointments which the Council or the President may like to make. At the risk of repetition, it can be said that the Executive Officer is competent to make certain appointments under his authority and he can make recommendations with respect to appointments which are under the competence of the Council or the President of the Council as the case may be. While making such appointments, these authorities shall have to take into consideration recommendation, if any, made by the Executive Officer.
8. Apart from the appointments before us, Shri A. Haqani has placed before us certain other appointment orders which have been made by the Executive Officer after present appointments were made. We find that certain appointments have also been made by Assistant Secretary who is below in rank to the Executive Officer. Obviously, he must have been authorised by the Executive Officer. Another facet of the question is whether the present appointments have been made after inviting applications from the public. Since single Judge has held that these appointments are bad as before filling up these posts, applications were not invited from the Public at large thereby violating Articles 14 and 16 of the Constitution. Shri B.A. Khan, learned Counsel for the respondents was confronted with large number of appointment orders on file made by the Municipality and asked whether these appointments were made after inviting applications from general Public. Learned Counsel submits that Srinagar Municipality is an autonomous body where the practice is to consider those candidates for appointment against available posts who apply to it of their own from time to time. Therefore, all the appointments have been made in that fashion. With this background, it could not be settled that the appointments of the appellants are against any rules or practice prevalent in the Municipality at Srinagar. Perusal of the appointment orders plainly demonstrate that the appointments have been made against regular pay scale and without any conditions. They have not been shown ad hoc or temporary or officiating. Therefore, they are regular appointments, liable to be terminated for justified cause and in accordance with law.
9. Next is the question whether before terminating the services of the appellants they were entitled to hearing. Shri A. Hawani places reliance on latest decision of Apex Court reported in Basudeo Tiwary v. Sido Kanhu University and Ors. (1999-I-LLJ-200)(SC). In particular, reference was made to the para 12 of this Judgment in which it is held that at pp. 204-205:
"The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, Statute, Rules or Regulations or in any irregular or unauthorised manner. The condition precedent for exercise of this power is that an appointment had been made contrary to Act, Rules, Statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, Statute, Rules or Regulations etc. a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessarily enquiry notice will have to be held and in holding such an enquiry notice to the person whose appointment is under enquiry will have to be issued to him. If notice is not given to him then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected, is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as noticed by this Court in D.T.C. Mazdoor Sabha's case (1991-I-LLJ-395)(SC). In such an event, we have to hold that in the provision there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, Statute, Rule or Regulation etc. and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how Section 35(3) in this case will have to be read."
10. Apex Court has stated that in order to arrive at a conclusion that the appointment has been made contrary to the provisions of the Act, Statute, Rule or regulation etc. a finding has to be recorded and unless such a finding is recorded, termination cannot be made; to arrive at such a conclusion, necessarily an enquiry will have to be made as to whether such an appointment is contrary to the provisions of the Act etc. To arrive at such a finding, necessary enquiry will have to be made that the person whose appointment is under scrutiny will have to be given notice otherwise the conclusion drawn in his absence would not be just, fair or reasonable.
11. Basudeo Tiwary's case (supra) aptly applies to this case, therefore, it was incumbent upon the respondents to hold enquiry, afford opportunity to the appellants before taking action. Respondents failed to do so, therefore, there is clear violation of principles of natural justice and the action taken is liable to be set aside.
12. No other point was urged.
13. For the reasons stated above, we find merit in this appeal and the same is allowed. Termination of appellants is set aside. They shall be deemed to be in service throughout and entitled to all consequential benefits.
14. We find that some of the petitioners have not filed appeal against the impugned judgment. It may be due to poverty or adjustment at some other place. In case, they offer themselves before the Administrator/ Executive Officer of the Srinagar Municipality for the treatment which the present appellants are getting by virtue of this decision, they shall also be treated similarly so that further litigation is avoided.
Cost on parties.