CWP No.9953 of 1990 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.9953 of 1990 DATE OF DECISION: April 19, 2011 MADAN LAL ...PETITIONER VERSUS STATE OF PUNJAB AND ANOTHER ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? No 2. To be referred to the reporters or not? Yes 3. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR. KESHAV GUPTA, ADVOCATE FOR THE PETITIONER. MR. K.S. SIVIA, DAG, PUNJAB. MR. ANSHUMAN CHOPRA, ADVOCATE FOR MR. AMARJIT MARKAN, ADVOCATE FOR RESPONDENT NO.3. K.KANNAN, J.(ORAL) 1. The petitioner seeks for quashing of the order issued by the Deputy Director, Local Self Government staying the resolution passed by the Municipal Committee. The Resolution had been passed by the Municipal Committee on 9.5.1988, but the Deputy Director through the impugned order stayed the Resolution. The Municipal Committee expressed its competence to pass such an order in terms of Section 39 of Municipal Committee Act and further order was passed on 18.8.1988, reiterating its earlier decision holding that the Government had approved the scales of `570-`1080/- only to the post of Accountant Inspector and it was not possible to grant such a scale to the petitioner who had worked on the post CWP No.9953 of 1990 -2- of Accountant only for one year. 2. The issue of whether the Municipal Committee was competent to fix the scale for pay for persons who are not specifically in the cadre of provincialized service is no longer res integra. It has been held in earlier decision of this Court in Satish Kumar vs. State of Punjab, reported as 1987 (4) SLR 783 that Municipal Committee is competent to fill in all the posts under its administrative control by making appointments by direct recruitment or promotion so long as those posts were not specifically in the cadre of provincialized service and they are also competent to determine their own scales of pay. Section 39 of the Punjab Municipal Act, 1911 reads as follows:- “39. Employment of other officers and servants. – (1) Subject to the provisions of this Act and the rules and bye-laws made thereunder, a committee may, and if so required by the State Government shall, employ other officers and servants and may assign to such officers and servants such remuneration as it may think fit, and may suspend, remove, dismiss, or otherwise punish any officer or servant so appointed. [Provided that no person who is a member of a committee shall be employed by a committee during the tenure of his term and for a period of twelve months thereafter.] [(2) Nothing in this section shall prevent the State Government from making any provision in the rules under this Act for the reservation of appointment or posts and to lay down methods to secure such reservation in favour of members of the Scheduled Castes, the Scheduled Tribes and such other CWP No.9953 of 1990 -3- backward classes of citizens which in the opinion of the State Government are not adequately represented in the services under the Municipal Committee.]” 3. The judgment referred to above has dealt with this issue in the context of Section 236 of the Municipal Act. The said Section reads as follows :- “236. Power to State government and its officers over committees:- (1) The State Government and Deputy Commissioners, acting under the orders of the State Government, shall be bound to require that the proceedings of the committees shall be in conformity with law and with the rules in force under any enactment for the time being, applicable to Punjab generally or the area over which the committee have authority. (2) The State Government may exercise all powers necessary for the performance of this duty, and may among other things, by order in writing, annual or modify any proceeding which it may consider not to be in conformity with law or with such rules as aforesaid, or for the reasons which would in its opinion justify an order by the Deputy Commissioner under Section 232. (3) The Deputy Commissioner may within his jurisdiction for the same purpose exercise such powers as may be conferred upon him by rule made in this behalf by the State Government.” The Court held Section 236 of the Act gives wide powers of control to the CWP No.9953 of 1990 -4- Government, but these powers have to be exercised for ensuring that the Municipal Committee Act in accordance with law. Sub-Section (2) of this section authorizes the Government to exercise all powers necessary for the performance of its duties to ensure that the Committees writing annul or modify any proceedings of the Committee which appear to it to be not in conformity with law. In short, though the powers of the Government are wide yet they have to be exercised in a contingency when the action of the Committee appears to be not in conformity with law or the rules in force under any enactment which is applicable to Punjab. This power of control cannot be exercised either for an extraneous purpose or for reasons which do not exist in the eyes of law. There is yet another way of looking at the things. Section 236 of the Act entitles the Government to exercise control over the Municipal Committees and to set aside the resolutions passed by them if they are against the provisions of any law. In the garb of exercise of power under this section the Government cannot trip the Committees into errors and then to utilize that situation for annulling their resolutions. Even if the Government did have the technical power to annul the resolution of the Committee in exercise of power of control the Government will not be allowed to exercise this power if the error complained of against the Municipal Committee has been committed pursuant to a directive issued by the Government. 4. The judgement formulates the legal position as emerging in the following lines:- (1) A Municipal Committee is competent to fill in all the posts which are under its administrative control by making appointments by direct CWP No.9953 of 1990 -5- recruitment or by promotion in exercise of the powers conferred under section 39 of the Act. (2) The posts which carry the pay scales equivalent to the pay scales of the posts included in the cadre of the Provincialized Services constituted by the Municipal Committee concerned, so long as those posts are not specifically included in the cadres of the Provincialized Services. (3) Once the approval to the proposal of a Municipal Committee for the conversion of posts carrying lower pay scale to those of higher pay scale is granted by the State Government or the Director, Local Self Government, Punjab, as the case may be, the State Government and the Director, Local Self Government, become functus officio and are then estopped from annulling the orders of the Municipal Committee with regard to the filling up of those posts by promotion of its own employees; and (4) Powers under Section 236 of the Act cannot be exercised by the State Government or the Director, Local Self Government, for annulling the resolution or the order of the Municipal Committee, unless a clear and specific finding is arrived at after proper consideration of the material available on the record, that the action of the Municipal Committee concerned, was not in conformity with law. 5. The proceedings of the Government disapproving of the scales of pay fixed for the petitioner was, therefore, beyond its competence. The State will have no more role than to ensure that the activities of the Municipal Committee conform to law. The power exercised by the Municipal Committee in passing the Resolution was in consonance with the power enjoyed by it under Section 39. CWP No.9953 of 1990 -6- 6. The writ petition is allowed and the impugned proceedings are quashed. April 19, 2011 (K.KANNAN) Gulati JUDGE