Shankerlal Chaubey vs Municipal Corporation, Jabalpur

K.L. Pandey, J.—This petition under Articles 226 and 227 of the Constitution is mainly directed against a resolution of the Municipal Corporation No. 22 dated 10 August 1963 whereby it was directed that the resolution No. 395 of its Standing dated 10 August 1963 be not implemented. The Standing Committee, by its resolution No.395 had decided to relieve the petitioner from the substantive post of Internal Audit Officer and to appoint him temporarily as Corporation.

The facts giving rise to this petition may be briefly stated. Upon the death of the permanent incumbent, B.P. Wadia, the port of Secretary of the Corporation fell vacant. On 10 August 1962, the Standing Committee directed the petitioner to hold teraporarity in addition to his own duties, the current charge of the duties of the post of Secretary. On 8 August 1963, the Commissioner of the Corporation appointed, temporarily and until further orders, M. Mukerjee, the Corporation Counsel as Secretary of the Corporation and directed that, on relief, the petitioner'' would revert to his substantive appointment as internal Audit Officer. Thereupon, the Standing Committee passed the resolution No. 395. The Corporation, by the impugned resolution No. 22 which it passed in a special meeting called on 10 August 1963, directed that the resolution of the Standing Committee be not implemented, resolved to invite applications for the post of Secretary from candidates having the prescribed qualifications and appointed M. Mukerjee to hold charge of the post, in addition to his own, until it was filled. The petitioner''s repeated request that he should be placed in charge of the post of Secretary went unheeded. Nay, the Corporation made a reference to the State Government presumably for an order suspending the operation of the Standing Committee''s resolution No. 395 u/s 421 of the Madhya Pradesh Municipal Corporation Act, 1956, as applying to the whole of Madhya Pradesh by virtue of the Madhya Pradesh Municipal Corporation Law (Extension) Act, 1960.

The petitioner has challenged the action taken by the Corporation mainly on the ground that, u/s 58 of the Municipal Corporation Act, 1956, the Standing Committee alone is authorized and competent to appoint the Municipal Secretary and that the Corporation is bound to give effect to the Standing Committee''s resolution No. 395 appointing the petitioner as the Municipal Secretary. In their return, the respondents 1 and 2 contend that, under sub-section (1) of section 58 ibid, the Corporation has inherent power to appoint the Municipal Secretary and that, in any event, the resolution No. 395 passed by the Standing Committee is otherwise not in accordance with law.

Section 58 of the Municipal Corporation Act, 1956, which admittedly governs this matter, reads as follows:

58 (1). Subject to the provisions of this Act, the Corporation shall appoint a City Engineer, a Health Officer, a Revenue Officer, a Municipal Secretary and a Municipal Accountant and may appoint a Deputy Municipal Commissioner and such of her 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, pensions and gratuities and may make on their behalf such payments to the provident or annuity funds as the Corporation may determine by bye-laws made in this behalf u/s 427:

Provided that-

(1) the power of appointing any person on a municipal post which carries a maximum monthly salary exceeding 150 rupees shall vest in the Standing Committee;

(2) the power of appointing any person on a municipal post which carries a maximum monthly salary not exceeding Rs. 50 rupees shall vest in the Commissioner;

(3) any appointment made within his power by the Commissioner shall be reported for its information to the Standing Committee:

Provided further that the appointment to be made by the Standing Committee shall be so made in consultation with the State Public Service Commission in the manner prescribed:

Provided also that in case of any difference of opinion between the Standing Committee and the State Public Service Commission, the matter shall be laid before the Corporation If the Corporation agrees with the State Public Service Commission the appointment shall be made accordingly. In other cases a reference shall be made by the Corporation to the Government whose decision shall be final.

(2) notwithstanding anything contained its sub-section (1), the Standing Committee may make appointments for a period not exceeding six months without consolation with the State Public Service Commission.

The learned counsel for the respondents urged before us that a proviso should be considered with relation to the principal matter to which it stands as a proviso, that the subject matter of the proviso should be regarded as included in the main enactment and that the proviso should be construed as something carved out of the main enactment and not comprising of anything outside the gamut of the main enactment. This, it is now well settled, is the natural presumption which has been accepted as a general rule of construction: Madras and Southern Mahrotia Railway Co., Ltd vs. Bez-wada Municipality, 71 IA 106 at page 122; Abdul Jabar Butt vs. State of Jammu and Kashmir 1957 SCR 51; The The Commissioner of Income Tax, Mysore, Travancore-cochin and Coorg, Bangalore Vs. The Indo Mercantile Bank Limited, , Tahsildar Singh vs. The State of Uttar Pradesh (1959) Supp. (2) SCR 87, and Shah Bhojraj Kuverji Oil Mills and Ginning Factory Vs. Subbash Chandra Yograj Sinha, . But there may be a section or sub section containing a proviso, which may exceptionally contain matter that is in substance a fresh enactment, adding to, and not merely qualifying, what goes before it: Rhondda Urban Council Vs. Toff Vale Railway, 1909 AC 253 at page 258 and Commissioner of income tax, Madhya Pradesh Vs. Mondial Bhandari 1962 JLJ 1015.

In the instant case, while the main enacting part of sub-section 1 of section 58 provides that the Corporation shall appoint a City Engineer, a Health Officer, a Revenue Officer, a Municipal Secretary and a Municipal Accountant and may appoint a Deputy Municipal Commissioner and such other officers and servants as are necessary" the proviso to that enactment vests the power of appointing all officers and servants, without any exception, on either the Standing Committee or the Commissioner. In our opinion, the main enacting part, which is not happily Worded, casts upon the Corporation the duty to employ the Officers and servants therein, indicated and the proviso thereto statutorily vests the power of appointing them, without any exception, on the authorities named therein which are statutory functionaries of the Corporation. The two deal with different matters, the main enacting part creating a duty to employ certain officers and servants for the purpose of efficiently carrying out the purposes of the Act and the proviso conferring powers to appoint them. It is urged that the main enacting part confers on the Corporation the power to appoint the higher officers therein named, who are not mentioned in the proviso. We are unable to accept this interpretation. If that part could be regarded as conferring such power, it is not restricted in operation to only those officers. Further, so construed, it would not only bring about a conflict between the authorities named in the two parts of sub-section (1) but would also render the proviso itself otiose. Finally, the consideration that the Corporation is required by the second proviso to the main proviso to resolve any ''difference between the Standing Committee and the State Public "Service Commission Over any appointment indicates that the Corporation was not conceived as possessing or exercising any power of appointment. In this view, we are of opinion that the Standing Committee, and note the Corporation, is competent to appoint the Secretary of the Corporation.

We would now briefly consider certain other grounds on which the validity of resolution No. 395 of the Standing Committee has been challenged before us. As provided by section (2) of section 58, consultation with the State Public Service Commission is not necessary for a temporary appointment not exceeding six months. It is, however, urged that since the petitioner was first appointed to the post on 10 August 1962 and the period of six months had already expired, he could not be continued on the post after 10 February 1963. The short answer to this is that, on 10 August 1962, the (petitioner was not-appointed to the post and was merely directed to hold charge of the current duties of that post in addition to his own. Really and substantively, he continued to function as internal-Audit even after 10 August 1962. his first temporary appointment to the post was made by the Standing Committee by its resolution No. 395 dated 10 August 1963.

It is next urged that the petitioner does not have a degree of a University and is, therefore, not qualified for the appointment within the meaning of Rule 6 of the Municipal Officers and Servants Recruitment Rules made under the Control Provinces and Berar Municipalities Act, 1922, which have been kept alive by the provisions of the City of Jabalpur Corporation Act, 1948, and the Madhya Pradesh, Corporation Law (Extension) Act, 1960. In regard to this, all that we need say is that as provided by Rule 15 of those Rules, Rule 6 has no application to a temporary appointment for a period not exceeding six months.

Since this is a temporary appointment which will not be valid after six months, the farther contention that there was a violation of Article 16 of the Constitution was not passed before us.

In the view we have taken of this case, the petition succeeds and is allowed. The order of the Commissioner dated 8 August 1963 and the resolution No, 22 of the Corporation dated 10 August 1963 are quashed and the respondents are directed to give effect to the Standing Committee''s resolution No 395 dated 10 August 1963. The respondents 1 and 2 shall bear their own costs and pay those incurred by the petitioner to whom the security amount shall be refunded. Hearing fee Rs. 100.