IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 2526 of 2008. Reserved on: 05.01.2011. Decided on: 23.02.2011. __________________________________________________________ Ganga Ram. … Petitioner. Versus Principal Secretary and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Mr. B.S. Chauhan, Advocate. For the Respondents : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General for respondents No.1 and 2. None for respondent No.3. Mr. Romesh Verma, Advocate for respondent No.4. Rajiv Sharma, Judge: Material facts necessary for adjudication of this petition are that the respondent No.3 initiated the process for filing up the post of Chowkidar in Gram Panchayat Kahnoo vide resolution dated 27.8.2008. Applications were to be received between 1st September, 2008 to 3rd September, 2008. Nineteen candidates including the petitioner submitted applications for considering their candidatures for the post of 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - Chowkidar. The interviews were fixed on 23.10.2008. Seven candidates appeared in the interview. Respondent No.4 was selected and appointed as Chowkidar as per Annexure P-4, dated 24.10.2008 on the basis of resolution Annexure P-5, dated 23.10.2008. He joined his duties on 5.11.2008. 2. Mr. B.S. Chauhan, learned counsel for the petitioner has strenuously argued that the appointment of respondent No.4 as Chowkidar in Gram Panchayat, Kahnoo is in violation of the mandatory provisions of Section 135 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as “the Act”) read with Rule 137 of the Himachal Pradesh Panchayati Raj Rules, 1997 (hereinafter referred to as “the Rules”). According to him, the Gram Panchayat, i.e. respondent No.3 has not sought the approval of respondent No.2 while making appointment of respondent No.4 to the post of Chowkidar. Mr. P.M. Negi, learned Deputy Advocate General on the basis of averments contained in the reply submitted that no prior permission has been sought by Gram Panchayat, Kahnoo before the appointment of respondent No.4. Mr. Romesh Verma, learned counsel appearing on behalf of respondent No.4 has supported his appointment on the basis of resolution dated 23.10.2008. 3. I have heard the learned counsel for the parties and gone through the pleading carefully. 4. Petitioner alongwith respondent No.4 has appeared in the interview on 23.10.2008. Petitioner secured 14 marks and respondent No.4 has secured 16 marks. Gram Panchayat, Kahnoo passed a resolution on 23.10.2008 whereby respondent No.4 was selected. Thereafter it was notified vide Annexure P-4 on 24.10.2008. Respondent - 3 - No.4 has joined his duties on 5.11.2008. It will be appropriate at this stage to consider Section 135 of the Himachal Pradesh Panchayati Raj Act, 1994 and Rule 137 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997. 5. Section 135 of the Act reads thus:- “135. Other Officers and servants of Panchayats.– (1) Subject to the provision of section 134 every Panchayat may, with the previous approval of prescribed authority, appoint such other officers and servants as it considers necessary for the efficient discharge of its duties. (2) The qualifications, method of recruitment, salaries, leave, allowances and other conditions of service including disciplinary matters of such officers and servants shall be such as may be prescribed.” 6. Rule 137 of the Rules ibid reads thus:- “137. Other officers and servants of Panchayat (section 135 of the Act.–(1) The Panchayats subject to the availability of funds in the budget, may by a resolution propose to the Director or any other officer authorised, the number of employees required by it and salary and allowances to be paid to them and duties to be assigned to each of them. The Director or any other officer authorised by him may allow the appointment of such servant as he considers necessary for the efficient discharge of the duties with following conditions:- “No person shall be employed by a Panchayat, if he is a near relative (father, grant father, father-in-law, maternal or paternal uncle, son, grandson, son-in-law, brother, nephew, brother-in-law, wife sister, sister’s husband, mother daughter, niece, mother-in-law, daughter-in-law and husband) of any of its members or if he has been convicted of any criminal offence involving moral turpitude. No employee of the Panchayat shall be retained in service after he has attained the age of 58 years. (2) …………….” - 4 - 7. It is evident from the plain language employed in Section 135 of the Act that no officer and servant of the Panchayat can be appointed without the previous approval of the prescribed authority. The prescribed authority as per Section 135 of the Act is the Director or any other officer authorised. In the instant case, the appointment of respondent No.4 is in violation of Section 135 read with Rule 137. There is difference between the words “approval” and “permission”. The words used in Section 135 of the Act are previous approval and not permission. The difference between these two words has been explained by their Lordships in U.P. Avas Evam Vikas Parishad and another versus Friends Coop. Housing Society Ltd. and another, 1995 Supp (3) SCC 456. Their Lordships have held that ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous act. Their Lordships of Hon’ble Supreme Court have held as under (para 6):- “This Court in Life Insurance Corpn. of India v. Escorts Ltd., considering the distinction between "special permission" and "general permission", "previous approval" or "prior approval" in paragraph 63 held that: "We are conscious that the word "prior" or "previous" may be implied if the contextual situation or the object and design of the legislation demands it, we find on such compelling circumstances justifying reading any such implication into Section 29(1) of the Act". Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous act. As to the word "approval" in Section 33(2)(b) of the - 5 - Industrial Disputes Act, it was stated in Lord Krishna Textiles Mills Ltd. v. Workmen, that the Management need not obtain the pervious consent before taking any action. The requirement that the Management must obtain approval was distinguished from the requirement that it must obtain permission, of which mention is made in Section 33(1).” 8. Their Lordship of Hon’ble Supreme Court in Ashok Kumar Das and others versus University of Burdwan and others, (2010) 3 SCC 616 have explained the terms “approval”, “prior approval” and “permission” as under (paras 10 to 15):- “The learned counsel for the Respondents 1 to 3, on the other hand, submitted that Section 21 (xiii) used the expression "approval of the State Government" and not "prior approval of the State Government" and it has been held by this Court in U. P. Avas Evam Vikas Parishad & Anr. v. Friends Co-operative Housing Society Ltd. and High Court of Judicature for Rajasthan v. P. P. Singh that when an approval is required, an action holds good and only if it is disapproved it loses its force. He further submitted that promotions made on the basis of Resolution of the Executive Council of the University adopted on 26.06.1995, therefore, hold good and now that the State Government has approved the Resolution of the Executive Council of the University adopted on 26.06.1995 by order dated 10.10.2002, the promotions made on the basis of the Resolution dated 26.06.1995 of the Executive Council of the University hold good and cannot be set aside by this Court. In Black's Law Dictionary (5th Edition), the word "approval" has been explained thus: "Approval.–The act of confirming, ratifying, assenting, sanctioning, or consenting to some act or thing done by another." Hence, approval to an act or decision can also be subsequent to the act or decision. - 6 - In U.P. Avas Evam Vikas Parishad (supra), this Court made the distinction between permission, prior approval and approval. Para 6 of the judgment is quoted hereinbelow: (SCC pp.458-59) "6. This Court in Life Insurance Corpn. of India v. Escorts Ltd., considering the distinction between "special permission" and "general permission", previous approval" or "prior approval" in para 63 held that: (SCC p. 313) ’63. … we are conscious that the word `prior' or `previous' may be implied if the contextual situation or the object and design of the legislation demands it, we find no such compelling circumstances justifying reading any such implication into Section 29(1) [of the Act].’ Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous Act, it was stated in Lord Krishna Textiles Mills Ltd. v. Workmen, that the Management need not obtain the previous consent before taking any action. The requirement that the Management must obtain approval was distinguished from the requirement that it must obtain permission, of which mention is made in Section 33(1)." Following the decision in U. P. Avas Evam Vikas Parishad, this Court again held in High Court of Judicature for Rajasthan v. P. P. Singh in para 40:SCC p. 255) "40. When an approval is required, an action holds good and only if it is disapproved it loses its force. Only when a permission is required, the decision does not become effective till permission is - 7 - obtained. (See U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd.)." Section 21 (xiii) of the Burdwan University Act, 1981 is quoted herein below:- "21. Powers and functions of the Executive Council.–Subject to the provisions of this Act, the Executive Council shall exercise the following powers and perform the following functions: (i) - (xii) ........................ (xiii) to determine, with the approval of the State Government, the terms and conditions of service of Librarians and non-teaching staff." The words used in Section 21 (xiii) are not "with the permission of the State Government" nor "with the approval of the State Government", but "with the approval of the State Government". If the words used were "with the permission of the State Government", then without the permission of the State Government the Executive Council of the University could not determine the terms and conditions of service of non-teaching staff. Similarly, if the words used were "with the prior approval of the State Government", the Executive Council of the University could not determine the terms and conditions of service of the non-teaching staff without first obtaining the approval of the State Government. But since the words used are "with the approval of the State Government", the Executive Council of the University could determine the terms and conditions of service of the non-teaching staff and obtain the approval of the State Government subsequently and in case the State Government did not grant approval subsequently, any action taken on the basis of the decision of the Executive Council of the University would be invalid and not otherwise.” 9. It is clearly admitted by the respondent-State in its counter that the permission of the Director was not sought before the - 8 - appointment of respondent No.4. Condition imposed under Section 135 and Rule 137 is mandatory. In view of the express provisions of Section 135 and Rule 137, the appointment of respondent No.4 as Chowkidar is illegal. 10. Mr. Romesh Verma, learned counsel appearing on behalf of respondent No.4 has also strenuously argued that since the petitioner had participated in the selection process, he cannot turn or/and challenge the same. In fact, the petitioner though has participated in the selection process, he is not precluded from challenging the appointment of respondent No.4, which is bad in law on the basis of bare perusal of Section 135 and Rule 137. 11. Their Lordships of Hon’ble Supreme Court in Ramesh Kumar versus High Court of Delhi and another, (2010) 3 SCC 104 have held as under (para 18):- “These cases are squarely covered by the judgment of this Court in Hemani Malhotra v. High Court of Delhi, wherein it has been held that it was not permissible for the High Court to change the criteria of selection in the midst of selection process. This Court in All India Judges’ Assn. (3) case had accepted Justice Shetty Commission’s Report in this respect i.e. that there should be no requirement of securing the minimum marks in interview, thus, this ought to have been given effect to. The Court had issued directions to offer the appointment to candidates who had secured the requisite marks in aggregate in the written examination as well as in interview, ignoring the requirement of securing minimum marks in interview. In pursuance of those directions, the Delhi High Court offered the appointment to such candidates. Selection to the post involved herein has not been completed in any subsequent years to the selection process under challenge. Therefore, in the instant case, in absence of any statutory requirement of securing minimum marks in interview, the High Court - 9 - ought to have followed the same principle. In such a fact situation, the question of acquiescence would not arise.” 12. In the instant case, the petitioner has challenged the procedural illegality committed by respondent No.3 by offering appointment to respondent No.4 without previous approval of the Director, Panchayati Raj. It was incumbent upon respondent No.3 to seek previous approval of the Director before permitting respondent No.4 to join his duties on 5th November, 2008. 13. Accordingly, in view of the observations and discussion made hereinabove, the writ petition is allowed. The appointment of respondent No.4 as Chowkidar in Gram Panchayat, Kahnoo is quashed and set aside. He shall forthwith cease to discharge the duties of Chowkidar in Gram Panchayat Kahnoo. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. February 23, 2011. (sck).