Municipal Commissioners of Baranagore vs Paresh Chandra Banerji

S.K. Mukherjea, J.—This appeal is directed against an order and judgment of D. Basu J. dated July 10, 1964, by which the learned Judge made a Rule absolute.

The Petitioner in the Rule, who is the Respondent before Us, was appointed officer-in-charge of the Public Works Department of the Baranagore Municipality on August 17, 1960, on probation for a period of six months on a salary of Rs. 130 (in the scale of Rs. 130-5-200) plus clearness allowance of Rs. 40 per month and other allowances. By the letter of appointment he was informed that the fixation of revised scale of pay for the employees was under the active consideration of the Commissioners and the benefits of the revised scales of pay, if sanctioned, were due to be implemented at the time of confirmation. Thereafter the Petitioner was confirmed in his appointment with effect from January 17, 1961, in the sanctioned scale of pay, i.e. Rs. 130-5-200, plus usual allowance. Sometime thereafter certain disciplinary proceedings were initiated by the Commissioners against the Petitioner on certain allegations. The said proceedings terminated in an order of dismissal made by the Commissioners by a resolution passed in a special meeting held on February 23. 1962. By the Rule the Petitioner challenged the validity of that resolution.

Reference may be made at this stage to Section 66(2) of the Bengal Municipal Act, 1932. Section 66 of the Act, it may be pointed out, deals with appointment of subordinate officers, Sub-section (2) of the said section reads:

66(2). Subject to the scale of establishment approved by the Commissioners under Sub-section (1) the Chairman shall have the power to appoint such persons, as he may think fit and from time to time to remove such persons and appoint others in their place:

Provided as follows:

(i) a person shall not be appointed to an office carrying a monthly salary of more than fifty rupees or a salary rising by periodical increments to more than fifty rupees without the sanction of the Commissioners at a meeting and an officer or servant whose post carries a monthly salary of more than twenty rupees shall not be dismissed without such sanction;

(ii) no appointment carrying a monthly salary of more than two hundred rupees or a salary rising by periodical increments to more than two hundred rupees shall be created without the sanction of the State Government and every nomination to and dismissal from, any such appointment shall be subject to confirmation by the State Government;

(iii) no person holding an office carrying a monthly salary of one hundred rupees or more shall be dismissed unless such dismissal is sanctioned by a resolution of the Commissioners passed at a special meeting called for the purpose and except with the consent of the (State Government) unless such resolution has been supported by the votes of not less than two-thirds of the total number of Commissioners holding office for the time being.

The appointment of the Petitioner with effect from August 17, 1960, for a period of six months on a salary of Rs. 130 in the scale of pay of Rs. 130-5-200 did not require the sanction of the State Government because the salary in that scale of pay did not rise to more than Rs. 200. The question is whether the subsequent order of the Commissioners by which the Petitioner was confirmed in his appointment with effect from January 17, 1961, in the scale of pay of Rs. 130-5-230 plus the usual allowance required such sanction. The learned Judge held that confirmation of the Petitioner in his appointment did not require any sanction. In course of his judgment he observed:

....Mr. Chakraborty contends that where a person is initially appointed on probation, the date of his confirmation is his date of appointment and not the initial date of appointment on probation. It is difficult to accept this contention, is as much as confirmation only secures to the person appointed on probation a security of tenure and certain other benefits as to conditions of service and when confirmation is ordered, it relates back to the date of initial appointment. It cannot be contended that the date of appointment in such cases is the date of confirmation and that the entire period of service during the period of probation is non est in law. Hence, if the word ''nomination'' refers to the initial appointment, the confirmation of the Government was not required in this case as the post to which he was initially appointed carried at salary below the limit specified by the statute. In the same way, the word ''nomination'' can hardly refer to a recommendation for an order of confirmation of a person who was appointed earlier and was already holding the post.

In construing proviso (ii) to Sub-section (2) of Section 66 of the Act we are in agreement with the learned Judge that ''appointment'' in the first part of the proviso must mean ''office'' having regard to the context in which the expression is used. The proviso, however, requires sanction of the State Government not only for creation of appointment, that is to say, an office or post carrying a monthly salary of more than Rs. 200 or a salary rising periodically to more than Rs. 200 but also confirmation by the State Government for every nomination to and dismissal from any such appointment. If the confirmation of the Petitioner in his appointment is treated as nomination to an appointment in the sense of proviso (ii) to Sub-section (2) of Section 66 of the Act, then his confirmation in the appointment will require confirmation by the State Government. The question, therefore, is whether the order by which the Petitioner is confirmed in his appointment is a nomination to the office of the officer-in-charge, Public Works Department of the Baranagore Municipality, or in other words a fresh appointment.

The Petitioner was appointed as a probationer for a period of six months on a salary of Rs. 130 plus usual allowances. Before the period of six months expired he was confirmed in his appointment on a scale of pay of Rs. 130-5-230 plus usual allowances per month. This, in our opinion, was not a fresh nomination to the appointment within the meaning of proviso (ii) to Section 66(2) of the Act. We are of opinion that by confirmation the initial appointment is only given a measure of permanence. It does not, in law or in fact, signify an appointment de novo.

In a recent decision of the Supreme Court in the case of The High Court of Punjab and Haryana and Others Vs. The State of Haryana and Others, , Ray C.J., speaking for the Court, observed:

Confirmation of an officer on successful completion of his period of probation is neither a fresh appointment nor completion of appointment. Such a meaning of confirmation would make appointment a continuing process till confirmation.

In that view of the matter, we are of opinion that the order by which the Petitioner was confirmed is not in the context of Section 66(2) of the Act, a fresh nomination to the post of the officer-in-charge, Public Works Department. The scale of salary applicable to the Petitioner at the time, of his initial appointment did not rise to more than Rs. 200. The Petitioner''s nomination, therefore, to the post did not require confirmation by the State Government.

It transpires that the Commissioners did not apply to the State Government for confirmation of the nomination of the Petitioner to the post. After the Petitioner was dismissed and he obtained the Rule, the Commissioners by a letter dated August 25, 1962, applied for approval of the State Government for the Petitioner''s appointment with effect from August 17, 1960 and his dismissal from service with effect from February 23, 1962. It ought to be pointed out that the Commissioners asked for approval of the appointment of the Petitioner with effect from August 17, 1960 and not from January 17, 1961. The Commissioners, therefore, did not treat the order of confirmation as an order of fresh appointment. It is quite clear, as we have said before, that no sanction of the State Government was necessary for appointment of the Petitioner on the scale of Rs. 130-5-200 which was the scale applicable to him. The Joint Secretary, Department of Local Self Government, not unnaturally" thought that, since approval to the appointment was sought for, the post must be on a scale of pay in which the salary rises to more than Rs. 200. He, therefore, in his reply stated:

Under proviso (ii) to Section 66(2) of the Bengal Municipal Act, 1932, the Municipal Commissioners have no power to make any appointment on a pay or scale exceeding Rs. 200 per month without Government approval and it is inconceivable that this was not known to the Commissioners or the executives of the Baranagore Municipality....

In the circumstances, the Government regret their inability to give ex post facto sanction to the appointment of Sri Paresh Chandra Banerji as officer-in-charge of the Public Works Department of the said Municipality from 17th August 1960 and his subsequent dismissal by them from that post with effect from 23rd February 1962.

It is quite clear from the language of the letter dated January 31, 1963, that the State Government, for all practical purposes, refused to confirm the appointment of the Petitioner or his dismissal to and from his post.

As proviso (ii) to Section 66(2) of the Act had no application to the appointment of the Petitioner with effect from August 17, 1960, sanction of the State Government to the Petitioner''s nomination to his post did not require confirmation by the State Government. On the other hand, the order of dismissal made on the basis of the resolution of the Commissioners passed at the meeting held on February 23, 1962, required confirmation by the State Government under proviso (ii) to Section 66(2) having regard to the fact that on that date the Petitioner''s post carried a monthly salary raising by periodical increments to more than Rs. 200. The State Government has refused, to confirm the order of dismissal. The order is, therefore, invalid and of no effect in law as not having been made in compliance with the statute.

Mr. S.C. Dasgupta, learned Advocate appearing on behalf of the Appellants, relied on a decision of the Supreme Court in the case of H. Lyngdoh and Others Vs. Cromlyn Lyngdoh, Judge, . In that case the Court held that where a person in Assam Judicial Service is appointed temporarily as a Judge of United Khasi-Jaintia Hills District Council Court without the sanction of the Governor and is continued in service as such even after the expiry of the age of superannuation without the sanction of the Government, the termination of the services of such a person without the sanction of the Governor is not illegal.

In our opinion, the decision has no relevance to the facts of this case. Here, the appointment did not require confirmation by or sanction of the State Government. The appointment having been valid, termination of service of the Petitioner, to be valid, required compliance with the procedure prescribed by law.

Mr. Dasgupta also relied on a decision of the Division Bench of the Allahabad High Court in Mohammad Ali Vs. The State of Uttar Pradesh and Others, . In that case, it is held that in the case of an appointment which is subject to the approval of the Government, if the Government has not accorded its approval, the appointing authority must ordinarily have the power of Rescinding the appointment before it has been approved by the higher authority. This case has no relevance for the same reason

Mr. Anilananda Mukherjee, learned Advocate appearing on behalf of the Respondent, contends that the provisos (i), (ii) and (iii) to Section 66(2) of the Act are of a directory character. The fact that the Commissioners applied for sanction of the Petitioner''s appointment after a long lapse of time, should be taken into consideration and the Petitioner should not suffer any prejudice on account of any act of omission or negligence on the part of the Municipal Commissioners. On the assumption that the appointment of the Petitioner was invalid by reason of lack of confirmation by the State Government, Mr. Mukherjee relied on a decision of the Privy Council in Montreal Street Railway Co. v. Normandin (1917) A.C. 170 and also on a decision of the Federal Court in AIR 1945 67 (Federal Court) in support of the contention that the relevant provisos are not mandatory but only directory in their nature. On that basis he argued that the absence of sanction of the appointment does not make the appointment invalid. If we are to accept this argument, we must equally hold that the absence of confirmation of the order of dismissal is likewise directory. If that view of the matter is taken, we do not see how the Petitioner will be better off. In our opinion, on a proper consideration of the matter, it must be held that the three provisos to Section 66(2) of the Act are mandatory in their character. In the case Montreal Street Railway Co. v. Normandin Supra (174) their Lordships of the Privy Council laid down certain tests for determination of the question whether provisions in a Statute are directory or not. Sir Arthur Channell observed:

The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes. 5th ed., p. 596 and following pages. When the provisions of a statute relate to performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.

It may be accepted that the Petitioner had no control over the Commissioners or the executive officers of the Municipality whose duty was to apply for confirmation of his appointment by the State Government. The neglect to discharge that obligation has resulted in working injustice to the Petitioner because the confirmation by the State Government of his dismissal, as contemplated in proviso (ii) to Section 66(2) of the Act has become unnecessary in the context of events. That factor, however, by itself is not conclusive in the determination of the question. In our opinion, the main object of the Legislature in enacting these provisos will be defeated if it be held that they are directory and not imperative. It is clear that the object of the Legislature was to retain effective control by the State Government over appointments and dismissals in certain categories of employment for more reasons than one. To hold that sanction or approval of the State Government is not mandatory in those cases will be to make serious inroads into the statute. Moreover, in applying the tests prescribed by the Privy Council, it cannot be said that neglect on the part of the Commissioners to apply for sanction in the present case has caused any general inconvenience. We are therefore, unable to hold that the provisos are directory by applying the principle enunciated by the Privy Council in the aforesaid decisions to the relevant provisions of the statute with which we are concerned in this appeal. In Biswa Nath Khemka v. Emperor Supra, the case decided by the Federal Court it was held that the directions laid sown in Section 256 of the Government of India Act to consult the District Magistrate or the Chief Presidency Magistrate, as the case may be, is directory and not mandatory and non-compliance with its provisions would not render an appointment otherwise regular and validly made ineffective or inoperative. In course of the judgment the Court observed as follows:

It seems to us that any other view would lead in many cases to results which could not have been intended by Parliament and would entail general inconvenience and injustice to persons who have no control over those entrusted with the duty of making recommendations for the grant of magisterial powers: See Montreal State Railway Company v. Normandin.

Whether a particular provision of the statute is directory or not is to be decided in the context of the statute itself, its objects and the impact it will make, if it is held to be directory. However, as we have held that the Petitioner''s appointment is valid and the order of dismissal is invalid, the rejection of the argument advanced by the Petitioner''s counsel, namely that the provisos to Section 66(2) are directory, ensures to the Petitioner''s advantage.

In the view we have taken, we must hold that the appointment of the Petitioner to the post of officer-in-charge, Public Works Department of the Municipality, made with effect from January 17, 1961, by the Commissioners was valid, sanction of the State Government not having been required to the said appointment. The order of dismissal by the Commissioners for which confirmation by the State Government was required under the statute is bad in the absence of such confirmation.

The appeal, therefore, fails and is dismissed.

We desire to make it clear that the Commissioners will be at liberty to pass a fresh order for dismissal of the Petitioner or terminate his services in accordance with law, if they are so advised and apply to the State Government for confirmation in that behalf.

There will be no order for costs. The operation of the order is stayed for a month from today.

M.N. Roy J.

I agree.