Civil Writ Petition No.2594 of 1991 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.2594 of 1991 Date of decision: March 18, 2011 Suresh Kumar .....PETITIONER VERSUS State of Punjab and others .....RESPONDENTS CORAM: HON'BLE MR JUSTICE T.P.S.MANN PRESENT: Ms Heena Talwar, Advocate for the petitioner. Ms Harman Sullar, Assistant Advocate General, Punjab for respondent Nos. 1 and 2. None for respondent No.3. T.P.S. MANN, J. Instant writ petition is directed against the order dated 19.12.1990 (Annexure P-5) issued by respondent No.2 whereby it was decided to annul resolution No.16 of respondent No.3 vide which the pay scale of Accounts Clerk was granted to the petitioner. Order dated 31.1.1991 (Annexure P-6) passed by respondent No.3 on the basis of order (Annexure P-5) withdrawing the grade of Accounts Clerk has also been impugned. Directions are sought to the respondents to continue paying to the petitioner the aforementioned pay scale. According to the petitioner, he was appointed as a Clerk in the Notified Area Committee, Mohali, hereinafter referred to as 'the Committee, Civil Writ Petition No.2594 of 1991 -2- on 20.7.1977 in the pay scale of Rs.110-250. From 1.1.1978, he was paid revised pay scale of Rs.400-600. On the basis of the seniority, he was designated as Senior Clerk with effect from 1.4.1985 in the pay scale of Rs.510-880. As the petitioner was a 'B' grade qualified Accountant and working against the post of Accounts Clerk for more than five years, the Committee-respondent No.3 passed resolution No.16 on 27.3.1989 to promote him as Accounts Clerk in the scale of Rs.570-1080. He was promoted as Accounts Clerk with effect from 1.4.1989. The pay scale of Rs.570-1080 was first revised to Rs.1500-2640 and then to Rs.1800-3200. However, on 19.12.1990, the Director, Local Govt. Punjab-respondent No.2 issued a letter to the Committee that the pay scale of Rs.570-1080 and subsequently revised pay scale had been wrongly granted to the petitioner and, therefore, to show cause as to why the resolution passed by it to that effect be not annulled. Instead of submitting any reply thereto, the Committee issued order dated 31.1.1991 to the effect that the petitioner be paid the pay scale which he was getting prior to 27.3.1989 i.e. before his promotion as Accounts Clerk. Relying upon the judgment of this Court in Satish Kumar vs State of Punjab and others, 1987 (4) SLR 782, whereby the said writ petition filed by the petitioner therein for challenging order dated 9.1.1987 passed by the State Government while annulling order dated 30.7.1986 passed by the Administrator, Municipal Committee, Mansa, appointing him as Accounts Clerk was allowed, the petitioner prayed for acceptance of the writ petition by setting aside orders Annexures P-5 and P-6 and for the grant Civil Writ Petition No.2594 of 1991 -3- of consequential relief of granting him the pay scale of Rs.1500-2640, later revised to Rs.1800-3200. In the joint reply, respondent Nos. 1 and 2 raised preliminary objections that the writ petition was not maintainable as the petitioner had not availed of the statutory remedy of appeal under Section 237 of the Punjab Municipal Act, 1911 (hereinafter referred to as “the Act”). Further, the impugned order Annexure P-5 was only a show cause notice so as to annul resolution No.16 dated 27.3.1989. On merits, it was averred that the petitioner was promoted as Accounts Clerk with effect from 1.4.1989 and granted pay scale of Rs.570-1080. In fact, the petitioner was not entitled to the pay scale of Rs.570-1080 as per Government Instructions dated 15.2.1982 (Annexure R-1/A) wherein it was clearly stated that the scale of Rs.570-1080 was admissible to only those Accounts Clerks who were enjoying the scale of Rs.160-400 as on 31.12.1977, whereas as per his own showing, the petitioner was in the grade of Rs.110-250 as on 31.12.1977. The action of the Committee in granting pay scale of Rs.570-1080 to the petitioner was without the approval of the Government and also in clear contravention of the aforesaid Government instructions. This had necessitated the issuance of show cause notice Annexure P-5 calling upon the Committee to show cause as to why its resolution be not annulled. In its separate written statement, the Notified Area Committee, besides taking preliminary objection regarding maintainability of the writ petition on account of the remedy of appeal being available to the petitioner, averred that though the petitioner was promoted as Accounts Clerk with Civil Writ Petition No.2594 of 1991 -4- effect from 1.4.1989 and the pay scale of Rs.570-1080 was given to him, yet he was not entitled to the said pay scale according to the Government instructions dated 15.2.1982. As the petitioner was not eligible for the pay scale of Rs.570-1080 as stated by the government in the show cause notice dated 19.12.1990 (Annexure P-5), which was again conveyed by the Government vide its letter dated 7.1.1991 (Annexure R-2), the pay scale of Rs.570-1080 was rightly withdrawn. Having heard learned counsel for the parties, the Court finds that as on 31.12.1977, the petitioner while working as a Clerk was in the pay scale of Rs.110-250. The pay scale was revised to Rs.400-600 with effect from 1.1.1978. After his promotion as Accounts Clerk, he was granted the pay scale of Rs.570-1080 with effect from 1.4.1989. However, the said pay scale of Rs.570-1080 was required to be given only to those employees of the Committee, who were initially in the pay scale of Rs.160- 400 as on 31.12.1977. This clarification was issued by the Government of Punjab on 15.2.1982 when instructions in that regard were conveyed to all the Municipal Corporations/Municipal Committees/Notified Area Committees in the State of Punjab. As the petitioner was enjoying the pay scale of Rs.110-250 on 31.12.1977, he could not have been granted the pay scale of Rs.570-1080 upon his promotion as Accounts Clerk. Moreover, resolution No.16 dated 27.3.1989 (Annexure P-1) at no point of time had been approved by the Government. It was the Committee which had passed the said resolution and started acting upon the same. Therefore, as the pay scale of Rs.570-1080 had been wrongly granted Civil Writ Petition No.2594 of 1991 -5- to the petitioner, the Government issued notice dated 19.12.1990 (Annexure P-5) calling upon the Committee to show cause as to why the aforementioned resolution be not annulled. The Committee was given an option of submitting explanation if it so desired in that regard. If no reply was sent by the Committee, the Government was to presume that it had nothing to say and in such a situation, necessary action for annulling the resolution in question was to be taken. This was followed by letter dated 7.1.1991 (Annexure R-2) wherein it was mentioned that the Committee had not obtained the approval of the Government before granting the pay scale of Rs.570-1080 to the petitioner, who was working as Accounts Clerk. Reliance of the petitioner on the decision of this Court rendered in the case of Satish Kumar (supra) is misplaced as in that case the proposal of the Municipal Committee for conversion of posts carrying lower pay scales to those of higher pay scales had already been approved by the State Government and therefore, the annulment of the resolution of the Committee was held to be bad. On the other hand, in the present case, resolution No.16 dated 27.3.1989 (Annexure P-1) had never been approved by the State Government and therefore, could be rightly annulled. The petitioner has also challenged orders dated 19.12.1990 and 31.1.1991 (Annexures P-5 and P-6) on the ground that that they have been passed without following the principles of natural justice. Before passing the same, neither any notice nor any opportunity of hearing had been given to the petitioner. Before considering the argument raised on behalf of the Civil Writ Petition No.2594 of 1991 -6- petitioner, it would be appropriate to have a look at the provisions of Section 236 of the Punjab Municipal Act, 1911 which reads as under: “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, annul or modify any proceeding which it may consider not to be in conformity with law or 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.” It is clear from the above provisions that the State Government has all the powers to annul or modify any proceeding of the Committee which it may consider not to be in conformity with law and the rules in Civil Writ Petition No.2594 of 1991 -7- force. There is no requirement of giving of any notice to the person, who is likely to be affected by such a resolution or an order of annulment. In Baldev Raj Sharma vs. The State of Punjab and another, 1972 PLR 145, this Court while relying upon the judgment of the Hon'ble Supreme Court in Subhash Chandra Vs Municipal Corporation of Delhi , AIR 1965 SC 1275, held that Section 236(2) of the Punjab Municipal Act, 1911 does not require issuance of any notice to the Municipal Committee concerned or to any person likely to be affected by the resolution or order of the annulment. Only the Municipal Committee whose resolution is to be annulled can be said to have a grievance and the person to whom resolution related, had no right to urge that he had not been given any notice or hearing before annulling the resolution in question. The conclusion arrived at is reproduced here-in-below: “Sub-section (2) of Section 236 of the Act authorises the State Government to annul or modify any proceeding of a Municipal Committee which it considers to be not in conformity with law or with rules as are in force. It does not expressly state that before passing the order notice has to be issued to the Municipal Committee concerned or to any person who is affected by that resolution or annulment order. It is only the Municipal Committee whose resolution is annulled that can be said to have a grievance and the person to whom that resolution relates, has no right to urge that he has not been given any notice or hearing before annulling that resolution. There is no direct authority on the point but this view of mine is supported by the observations of their Lordships of the Civil Writ Petition No.2594 of 1991 -8- Supreme Court in Shri Subhash Chandra vs Municipal Corporation of Delhi, which concerns Section 235 of the Act. Their Lordships observed: “Since Section 235 does not require an opportunity to be given to parties affected by the order other than the Municipality, the petitioners are not entitled to say that the order is bad.” In the case in hand, once the Government issued show cause notice (Annexure P-5), followed by the reminder dated 7.1.1991 (Annexure R-2), the Committee vide order dated 31.1.1991 (Annexure P-6) withdrew the grade of Accounts Clerk which had been given to the petitioner in pursuance of resolution No.16 dated 27.3.1989. In view of the above, no case is made out for any interference in the order-cum-show cause notice dated 19.12.1990 (Annexure P-5) and order dated 31.1.1991 (Annexure P-6) whereby the petitioner has been denied the pay scale of Rs.570-1080. The petition is without any merit and accordingly, dismissed. However, there is no order as to costs. (T.P.S.MANN) March 18, 2011 JUDGE pds.