Case: Subhas Chandra And Others Vs. Municipal Corporation Of Delhi And Another

Prior to the year 1948 the Municipal Committee recruited matriculates and non-matriculates as clerks in the junior grade of Rs.35-2-65-3-95. In order to attract better qualified persons they offered Rs. 45 as starting salary for graduates in this grade. Thereafter the Committee, by its resolution dated September 16, 1948, revised the grades and scales of pay for its entire staff on the basis of the recommendations of the Central Pay Commission appointed by the Government of India. By this resolution the Committee created two junior grades for recruitment of clearks, a grade of Rs. 55-3-85-4-125-5-130 for matriculates and the grade of Rs. 45-2-55-3-95-4-105 for non-matriculates.3. According to the petitioners the Committee, in order to attract graduates and persons of higher academic qualifications and for giving an impetus to the clerical employees for pursuing higher studies, decided by the same resolution, inter alia, that graduates working in the junior grade would be paid a "graduate allowance" of Rs. 20 p. m. Further according to them, this was sanctioned by the Chief Commissioner, Delhi, by memo. No. F. 2 (102) 48-L. S. G. dated July 26/27, 1949.4. It is common ground that by resolution No. 447 dated July 16, 1954 as amended by resolution No. 550 dated July 30, 1954 the Committee stopped payment of the graduate allowance to future recruits but continued its payment to such of the permanent and temporary employees in the junior grade who were already in receipt of the allowance. Thirty employees of the Committee made representations to the Committee against confining the payment of the allowance only to those persons who were already in receipt of it and demanded that this allowance should be paid to every employee who passed his B. A. examination after 1954 as well as to every graduate employee recruited after 1954. This representation succeeded and by resolution No. 693 dated November 1, 1957 the Committee resolved that the system of payment of personal pay of Rs. 20 per mensem to all graduates in the junior grade revived and that the necessary sanction of the Chief Commissioner to this proposal be obtained. On November 8, 1957 the Committee amended the aforesaid resolution by resolution No. 701 and directed that the words "Necessary sanction of the Chief Commissioner be obtained" appearing at the end of the resolution be deleted. According to the petitioners, therefore, this resolution came into operation immediately and they became entitled to payment of Rs. 20, with retrospective effect.5. Before this resolution could be implemented the Municipal Committee of Delhi was replaced by the Municipal Corporation of Delhi by the coming into force of the Delhi Corporation Act, 1957 (66 of 1957). The petitioners, therefore, approached the Commissioner of the Corporation and requested him to give effect to the resolution of November 1, 1957 as amended by the resolution dated November 8, 1957. By Office Order No. 1343 EST (58) dated November 5, 1958 the Commissioner admitted the claim for payment of graduate allowance to those graduate junior grade clerks of the erstwhile Delhi Municipal Committee who had been granted permission to pursue higher studies before July 30, 1954, but not to the remaining 18 persons. The grievance of the petitioners is that this Order of the Commissioner is discriminatory, because there is no rational basis for excluding them from the benefit of the aforementioned resolution of the Committee. The petitioners then moved a petition under Art. 226 of the Constitution before the High Court of Punjab but eventually withdrew it. They have now come to this Court under Art. 32 of the Constitution.

Reasoning: By the aforesaid Act the words "Commissioner or the" were deleted. It has not been brought to our notice that the Amending Act was applied to the State of Delhi. We must, therefore, proceed on the footing that the word "Commissioner" was still there in S. 232 of the Act as applied to the State of Delhi. By virtue of the provisions ofthe Delhi Laws Act, 1912 contained in Schedule B as adapted by the Adaptation of Laws Order, 1950 the expression "the Commissioner" used in any enactment applicable to the State of Delhi has to be read as "the State Government of Delhi." The expression "State Government" as defined in sub-s. (60) of S. 3 of the General Clause Act 1897 shall as respects anything done after the commencement of the Constitution and before the commencement of the Constitution (Seventh Amendment) Act, 1956 mean, in a Part C State, the Central Government, "Central Government" is defined in subs. (8) of S. 3 of that Act and meant in relation to a Part C State like Delhi, the Chief Commissioner thereof. Clearly therefore, the Chief Commissioner could make an order of the kind we have to consider here under S. 232 of theis true that the section did not enable the Chief Commissioner to prohibit a Committee from passing a particular kind of resolution but it certainly empowered him to prohibit the committee from doing an act which was about to be done. Here, the order of the Chief Commissioner to which we have adverted, in fact prohibited the Committee from, among other things, granting special pay or any other pecuniary advantage to any of its employees. What was thus expressly prohibited was the doing of an act but not passing of a resolution. Even so, we think that when the doing of an act was prohibited the Committee ceased to have any power to do that act and resolution passed by it to the effect that the act be done, can have no legalthis extent, therefore, Mr. Mehta is right that S. 232 does not authorise the authorities mentioned therein to make a blanket prohibition as to the doing of an act or a series of acts unless the authority anticipated that such acts would be done. There is, however, no difficulty in the case before us because the order itself mentions that it had been made to appear to the Chief Commissioner that the Municipal Committee of Delhi, amongst other things, was about to revise the existing scales of pay of its employees, creating posts and granting advance increments or special pay or other pecuniary benefits to some of its existing employees. The obvious reason for making this order was that the Municipal Committee was soon to cease to exist and the Corporation of Delhi to take its place. The Chief Commissioner, therefore, did not want the Committee to enter into commitments which would bind its successor. A perusal of the proceedings of the Committee during the relevant period shows that the Committee had before it numerous proposals relating to the emoluments of its employees and the Chief Commissioner must have known aboutof these cases helps him but one of them goes against his contention. In the first case the Deputy Commissioner had ordered the suspension of a resolution passed by a Committee sanctioning the construction of a platform after the platform had been constructed. In order to give effect to the order the Committee ordered under S. 172 the demolition of the platform. The High Court held that as the platform could not be said to have been constructed without sanction its demolition could not be ordered under S. 172. In the second case the High Court, following the above decision, held that under S. 232 the Deputy Commissioner can prohibit the doing of an act or suspend the execution of a resolution before the act was done or the resolution carried out. In the third case the Allahabad High Court had, amongst other provisions, to consider S. 34 (1) of the U. P. Municipalities Act, 1916 whereunder the District Magistrate could prohibit the execution or further execution of a resolution passed by a Municipal Committee. The High Court pointed out that this provision did not, as did the corresponding provision in an earlier Act, empower the District Magistrate to make an order in anticipation of an act which was about to be done. This case is thusdecision cannot afford any assistance to the petitioners before us as there is no provision in the Punjab Municipal Act analogous to the above provision requiring the Government to afford an opportunity to all the persons affected, to offer an explanation Section 235 requires the State Government to give an opportunity to the municipality and to none else. No grievance is alleged to have been made by the Committee of the omission by the Government to give it the opportunity contemplated by S. 235.It has to be borne in mind that an order under S. 232 takes effect immediately and its operation is not made dependent upon the action contemplated under S. 235. Where an order is made thereunder by an authority other than the State Government that authority has to report to the State Government. But, though such authority is bound to make a report its order is not inoperative or inchoate. It has to be given effect to by the Committee. It is true that till the procedure set out in S. 235 is complied with it cannot be regarded as final. But want of finality does not vitiate the order under S. 232. The order is, unless modified or annulled by the State Government, legally effective and binding on the Committee. The Committee can, therefore, acquiesce in it and waive the non-compliance by the State Government with the provisions of S. 235. Since S. 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. The decision relied on that does not assist them. Besides, as we have already pointed out, in the present case S. 235 is wholly inapplicable because the order in question has been passed by the Chiefthem with those of S. 232 it would he apparent that though there is a certain amount of overlapping when we read in S. 232 the words State Government for Commissioner the ambits of the two provisions are not quite the same. The overlapping is due to the fact that the two provisions are contained in an Act which was passed in 1911 for being applied in the former Province of Punjab and that it was by virtue ofthe Delhi Laws Act, 1912 that they were applied to the erstwhile province of Delhi with certain modifications. In its original form the power under S. 232 was not exercisable by the Provincial Government. It is only because of the modification made in S. 232 that the words "the Provincial Government of Delhi and later "the State Government of Delhi had to be read for the word "Commissioner in S. 232. As a result of the overlapping between the two sets of provisions in their application to the State of Delhi what has happened is that two sources of power one under S. 232 and another under S. 235, are now available to the State Government and it was free to avail itself of eitherground has been raised in the petition in regard to this. That apart, here we are concerned with the competence of the State Government to make an order of the kind which the Chief Commissioner made on October 30, 1956. That provision could not have been resorted to by him and cannot, therefore, be regarded as a special provision which excluded the utilisation of S. 232. Further, it cannot be so construed as to disentitle the authorities mentioned in S. 232 from prohibiting in anticipation an action such as increasing the emoluments of its employees.We are satisfied that the order of the Chief Commissioner dated October 30, 1956 was perfectly legal and in view of that order it was not open to the Committee to sanction the payment of an allowance to any of its employees thereafter. The resolution passed by it on November 1, 1957 was therefore beyond its jurisdiction and consequently the Commissioner of the Corporation could not treat it as a basis for sanctioning the allowance of Rs. 20 p.m. to any graduate employee of the Municipal Committee who was not in receipt of the allowance till then. The order of the Commissioner dated November 5, 1958 being thus illegal no question of discrimination arises.