ivil Appeal No 2967 of 1986
From the Judgment and Order dated 2871986 of the Allahabad High Court in WP No 1793 of 1980
Satish Chandra RB Mehrotra SK Mehta Atul Nanda and Aman Vachher for the Appellant
JM Khanna RB Misra and Ms Anil Katiyar for the Respondents
The Judgment of the Court was delivered by 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 11378
Respondent No 3 thereafter filed a claim petition before the Services Tribunal constituted under the UP Public Services Tribunals Act 1976 but subsequently he withdrew the same on 231279
Thereafter he filed a repre sentation to the Prescribed Authority ie the Commissioner Varanasi challenging appellant s appointment to the post of Tax Inspector
The Commissioner by his order dated 13280 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 10450
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 BD 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 10450
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 UP Municipal ities Act 1916 hereinafter referred to as the Act  or any rules framed thereunder or under the Government Order dated 1041950 the post of Tax Inspector was required to be filled by promotion only and not by direct recruitment
The Prescribed Authority ie the Commissioner as well as the High Court both proceeded on the assumption that the Govern ment Order dated 10450 had been issued by the State Gov ernment in exercise of its supervisory powers under section 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 10450 were ultra vires the State Government s powers under section 71 of the Act
He placed reliance on Ramesher Prasad and Other vs 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 vs State of UP Writ Petition No 4556 of 1965 dated 16966 and Inder Bahadur vs Municipal Board Mirzapur and Others Writ Petition No 235 of 1970 dated 201072 holding that the Government Order dated 10450 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 10450 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 27457 91259 and 30172 in holding that the directions contained in Government Order dated 10450 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 10450 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 10450 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
When direct recruitment to any post speci 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 UP 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 10450 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
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 ie the UP 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 13280 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
TNA Appeal allowed


Summary:
These appeals are by tenants against the land owners
One Bishan Das owned considerable extent of land in Pakistan
He died on April 11 1948 after he had migrated to India
After his death the Rehabilitation Department allot ted 124 standard acres and 4 I4 units of evacuee land to Respondents Nos 2 to 5 his sons and to Nos 6  7 who were the legal heirs of one his deceased son
Each of the five sons was deemed entitled to 24 standard acres and 13 units of land and accordingly mutuation in respect of each of them was allowed by the Rehabilitation Department
Permanent rights in regard to the allotted land were also conferred by the authorities on the said respondents
Thereupon the said respondents land owners initiated ejectment proceedings under sec
91i of the Punjab Security of Land Tenures Act 1953 against the tenants who were then in occupation of the Lands in question on the ground that each one of them was a small land owner as defined in Section 22 of the Act and that they required the land for self cultivation
The Assistant Collector Hissar rejected the application
Their appeals were dismissed by the Collector on 441965
Their revision preferred before the Commissioner Ambala Division was also rejected
Land owners  further revision to Finan cial Commissioner also failed whereupon they filed a Writ Petition before the High Court on the ground that the land had been allotted to them in lieu of the land owned by their father in Pakistan and consequently the permissible area of each of them was to be computed under the proviso to section 23 of the Act and so computed the holding of each of the five was well below the permissible limit of 30 standard acres prescribed thereunder
The High Court dismissed the Writ petition
Respondents preferred Letters Patent Appeals wherein the High Court held that in view of the Explanation to the proviso to section 23 the heirs and successors of the displaced persons to whom lands were allotted could not claim the benefit of the proviso and that the permissi 210 ble area under the substantive part of section 23 was 60 ordinary acres The respondents preferred appeals to this Court
This Court confirmed the view of the High Court
However this Court accepted an argument advanced on behalf of the re spondents land owners that in computing the permissible area of each of the land owner the uncultivated area of banjar Jadid banjar Kadim and gair Mumkin lands as on April 15 1953 could not be included
As the authorities had wrongly included these types of lands their orders were set aside and the case was remanded to the Collector concerned with a direction that should ascertain the extent of banjar Jadid banjar Kadim and gair mumkin lands of the Re spondents allotted as on 1541953
When these proceedings were pending applications filed by the appellants tenants under section 18 of the Act for purchase of surplus area also came to be considered by the authorities
When the matter came up before the Financial Commissioner he set aside the orders of the Collector and remanded the appel lants tenants cases for purchase of surplus land with a direction that the Collector must decide the cases of sur plus area after allowing the permissible 60 acres to the land owners
In a subsequent proceedings the Financial Commissioner directed the Collector to determine the permis sible area after excluding all banjar lands
The tenants filed Petitions before the Financial Commissioner against the order
However by the time these cases came up for orders this Court had decided the land owners  eviction cases viz in Munshi Ram  Ors
vs Financial Commissioner
Haryana  Ors  As such the revision Petitions were dismissed and the Collector was asked to determine the permissible area with reference to relevant date viz April 15 1953
By his order dated 6582 the Collector accordingly determined the area held by each of the land owner after excluding the banjar lands as less than the permissible area and found that no area owned by them could be declared surplus and on that footing dismissed the purchase applications filed by the appellantstenants
Their Petitions having been dismissed by the Authorities under the Act they fried Writ Petitions questioning the dismissal of their purchase applications
The High Court having dismissed the Writ Petitions they have filed these appeals
Dismissing the appeals this Court HELD The Punjab Security Land Tenures Act 1953 is intended to 211 place a ceiling on holding of land by fixing a maximum area permissible to be held by a land owner
In other words the excess over the permissible area shall be available as surplus area to be dealt with under the provisions of the said Act
217H In calculating the total extent held by a person on the date of the Act for purposes of determining whether a person is small land owner the banjar lands cannot be taken into account
216C The need to make a reservation would arise only when the land owner on the relevant date held land in excess of the permissible area
217C The right of reservation given to a person who holds land in excess of the permissible area is among others to give him an option to select that land which he would like to retain for himself and avoid one of the consequences of enabling the tenant to choose under section 18 of the Act any land including that which is under the personal cultiva tion of the land owner
218B It is not necessary and the Act does not make it obliga tory on pain of consequences provided under section 5C for a small land owner to make a reservation under sections 3 4 5 5A or 5B 218C Bhagwan Das vs State of Punjab  Gurbux Singh vs State of Punjab AIR 1964 SC 502 referred to