Case: Prakash Chand Maheshwari &amp; Anr Vs. Zila Parishad, Muzaffarnagar &amp; Ors

of the notification under Section 120 (3) of the Act of 1922.23. The last point raised by the petitioners relates to the appointment of the Kar Adhikari on the ground that it was not done in consultation with either the Public Service Commission of the State or any other Commission or body appointed in that behalf by the State Government under Section 43 of the U. P. Kshettra Samithis and Zila Parishads Adhiniyam 1961 i.e. U. P. Act XXXIII of 1961. The appointment of respondent No. 2 in this case took place on 8th August 1965: the impugned assessment was made on 8th March 1968 i. e. more than two years after the date of appointment. Under Section 43 the appointment of this officer to the post which carried an initial salary of more than Rs. 200 p. m. could be made by the Parishad in consultation with the Public Service Commission or other Commission or selection Body as might be constituted by the State Government and if there was a difference of opinion between the Commission and the Parishad the matter was to be referred to the State Government whose decision was to be final. Counsel for the respondents on the materials before this Court was only in a position to inform us that the State Public Service Commission had been notified of the appointment and they had not expressed my disapproval of the same. We do not think that this was sufficient compliance with Section 43.24. In Chandramouleshwar Prasad v. Patna High Court, 1970-2 SCR 666 = (AIR 1970 SC 370 ) this Court had to consider the question of "appointment of persons to be and the posting and promotion of District Judges" in the State of Bihar which under Article 233 (1) of the Constitution were to be made by the Governor of the State in consultation with the High Court. It appeared that there was some difference of opinion between the High Court and the Government of Bihar with regard to certain appointments and promotions of District Judges in the State of Bihar and the Government issued a notification on 17th October 1968 appointing the petitioner as temporary District and Sessions Judge Singhbhum until the appointment of a permanent officer in the vacancy caused by the retirement of an incumbent to that office. This Court found that before issuing the said notification the Government power attempted to ascertain the views of the High Court with regard to the petitioners claim or gave the High Court any indication of its views with regard thereto. It was observed that (page 674) (of SCR) - (at page 375 of AIR) :"The Governor cannot discharge his functions under Article 233 if he makes an appointment of person without ascertaining the High Courts views in regard thereto ... ... ... ... Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views."Appointing respondent No. 2 as Kar Adhikari and merely sending the papers relating to such appointment to the Public Service Commission would not therefore be in compliance with Section 43 of the Act. Even if it be regarded as a temporary appointment, it could only be effective for two years and as the assessment in this case was made beyond that date it must be held that the assessment was by a person not competent to make it.25. After the conclusion of the arguments of both parties, the respondents had an affidavit affirmed by one K. D. Banerjee, an Assistant in Panchayat Raj II Department, Government of U. P. to the effect that the State Government had created a Central transferable cadre of the class of officers, acting under Section 44 of Act XXXIII of 1961 and that the Government had also framed rules known as U. P. Zila Parishad Central Transferable Cadre Rules, 1966 which came into force with effect from December 20, 1966. According to paragraph 8 of the rules, appointment for the first time to the cadre were to be made from amongst the officers who on the 26th April 1966 were holding the posts, inter alia, Kar Adhikari. Further, according to paragraph 9 (4) of the rules, a list known as List C was to be prepared containing the names of officers who as on 26th April 1966 are holding the posts of Secretary or Kar Adhikari etc, in a temporary or officiating capacity and the list was to be arranged in order of seniority. According to the affidavit the respondent No. 2 having been appointed in a temporary officiating capacity continued to be on that post under sub-rule (4) of Rule 9 and his name was included in list C and was being considered by the Government for permanent appointment in consultation with the State Public Service Commission.26. In our view the matters relied on it the affidavit do not alter the situation or improve the position of respondent No. 2 in any way. The nonobstante clause in Section 44 of Act XXXIII of 1961 only relates to Sections 41, 42 and 43 and not to Section 47 which deals with officiating and temporary appointments to certain posts. It would therefore appear that by the inclusion of the name of respondent No. 2 in list C he still continued to be in his officiating and temporary capacity. In terms of Section 47 therefore the appointment ceased to be valid after two years, the period having expired long before the hearing of this matter.27. No argument was advanced to us on the question of the validity of Section 131 of the U. P. Zila Parishad Act and we do not express any opinion thereon.28. Although the major points raised by the petitioners are of no substance, we find ourselves unable to uphold the validity of the levy as it has not been shown to us that Kar Adhikaris appointment was valid in law.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]Clearly, that case is distinguishable from the facts of the case before us. In this case the impost remained the same between the passing of the Government of India Act, 1935 and the commencement of the Constitution. The amendment of Section 108 of the U. P. District Boards Act of 1922 in 1948 only allowed the continuance of the tax already imposed on persons assessed according to their circumstances and property. We cannot accept the argument that validation of the imposition of a tax by the Professions Tax Limitation (Validation and Amendment) Act 1949 with retrospective effect was notour view this argument has no force. The assessment was to be done by the assessing officer appointed by the District Board. Even if there was a circle but the members of the circle refused to co-operate with him, the assessment would not be invalid. After all the help which they could render would only be limited to giving information about the assessees. It was quite competent for the assessing officer to proceed with the assessment even if the members refused to help him. The situation was not altered by reason of the fact that the circle and the members hadrules laying down certain dates by which the work was directed to be taken in hand and completed were merely directory and not mandatory. There was nothing in these rules to suggest that if the dates were not strictly observed any prejudice would be caused to the assessee. We find ourselves unable to accept the observations to the contrary in a judgment of the Allahabad High Court D/- 8-1-1963 rendered in Civil Misc. Writ Petn. No. 3160 of 1962 to which reference was made in thisour view, even if there was any such irregularity in the framing of the rules, the same were cured by the publication of the notification under Section 120 (3) of the Act ofappointment of respondent No. 2 in this case took place on 8th August 1965: the impugned assessment was made on 8th March 1968 i. e. more than two years after the date of appointment. Under Section 43 the appointment of this officer to the post which carried an initial salary of more than Rs. 200 p. m. could be made by the Parishad in consultation with the Public Service Commission or other Commission or selection Body as might be constituted by the State Government and if there was a difference of opinion between the Commission and the Parishad the matter was to be referred to the State Government whose decision was to be final. Counsel for the respondents on the materials before this Court was only in a position to inform us that the State Public Service Commission had been notified of the appointment and they had not expressed my disapproval of the same. We do not think that this was sufficient compliance with Section 43.In our view the matters relied on it the affidavit do not alter the situation or improve the position of respondent No. 2 in any way. The nonobstante clause in Section 44 of Act XXXIII of 1961 only relates to Sections 41, 42 and 43 and not to Section 47 which deals with officiating and temporary appointments to certain posts. It would therefore appear that by the inclusion of the name of respondent No. 2 in list C he still continued to be in his officiating and temporary capacity. In terms of Section 47 therefore the appointment ceased to be valid after two years, the period having expired long before the hearing of this matter.No argument was advanced to us on the question of the validity of Section 131 of the U. P. Zila Parishad Act and we do not express any opinion thereon.Although the major points raised by the petitioners are of no substance, we find ourselves unable to uphold the validity of the levy as it has not been shown to us that Kar Adhikaris appointment was valid in law.