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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,

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   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

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   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.

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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-

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             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.

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   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