Case: Mohd Rashid Ahmad Etc Vs. State Of U.P. &amp; Anr

These two appeals by special leave, directed against the judgment of the Allahabad High Court dated May 12, 1969 raise common questions and therefore, are disposed of by this common judgmentBy separate notifications issued under section 3 of the U.P. Mahapalika Adhiniyam, 1959, the State Government constituted Municipal Corporations in five cities in the State, namely Kanpur, Agra, Varanasi, Allahabad and Lucknow w.e.f. February 1, 1960The appellant in the present appeal, Mohd. Rashid Ahmad was a permanent Assistant Engineer in the Development Board, Kanpur, constituted under the Cawnpore Urban Area Development Act, 1945. In 1953, an Administrator was appointed of both the Development Board and the Municipal Board, Kanpur, constituted under the U.P. Municipalities Act, 1916, under the U.P. Local Bodies (Appointment of Administrators) Act, 1953. The two local bodies, however, continued to have separate legal existence and their officers and servants continued as the employees of the respective bodies. The appellant Mohd. Rashid Ahmad was appointed as Offg. Executive Engineer by the Administrator of the Municipal Corporation, Kanpur, for a period of one year on September 12, 1960. He has since then continued to function in the same capacity, on a purely temporary arrangement under s.577(ee), that is, for so long as no substantive appointment could be made to that post under s.106. The Uttar Pradesh Public Service Commission, however, considered that he was not fit for appointment for the post of the Executive Engineer, Municipal Corporation, KanpurThe appellant in the connected appeal, Ashfaq Hussain was a permanent Sanitary Inspector in the Municipal Board, Kanpur. After the constitution of the Municipal Corporation, Kanpur, he continued to hold that post under s. 577(e). On July 24, 1967 he was transferred in the same capacity to the Municipal Corporation, Allahabad, where he was promoted temporarily as an Assistant Engineer. He, therefore, stood provisionally absorbed under s.577(e).Both the U.P. Nagar Mahapalika Adhiniyam, 1959, and the U.P. Municipalities Act, 1916 empowered these local bodies to appoint their employees subject to certain regulatory control by the State Government. By s. 12 of the U.P. Nagar Mahapalika (Sanshodhan) Adhiniyam, 1964, the State Legislature added s. 112A to the U.P. Nagar Mahapalika Adhiniyam, 1959. Similarly, by s.37 of the U.P. Municipalities (Amendment) Act, 1964, s.698 was added to the U.P. Municipalities Act, 1916, which was identical in terms to s.112A. Section 112A of the Adhiniyam empowered the State Government to provide by rules for the creation of one or more services to be known as Centralised Palika Services, as it may deem fit and proper, common to all the Municipal Corporations and Municipal Boards, and prescribe the method for recruitment and conditions of service of persons appointed to any such service.

Reasoning:
Even if the first amendment of March 30, 1967 was ineffective because it was brought into force from April 1, 1967, the second amendment of June 26, 1967, which introduced a new clause (iii) to r.6(2) with retrospective effect from July 9, 1966, was fully effective. It shifted the date for passing of the order of final absorption from March 31, 1967 to August 31 , 1967. Till the expiry of the date now fixed, i.e. August 31, 1967, the legal fiction contained in cl. (iv) of r.6(2) would not be brought into play. That is the inevitable legal consequence of the subsequent amendment made on June 26, 1967It would be clear that cl. (iii) of r. 6(2), as amended on October 10, 1966, gave power to the State Government to pass an order of absorption under s. 112A of the Adhiniyam, of an officer or servant of the Municipal Corporations provision ally absorbed under s. 577(e) if found suitable, on or before March 31, 1967. If there was a failure on the part of the State Government to pass such an order in respect of a particular officer or servant by that date, it would, unless there was a provision to the contrary, bring into play the legal fiction contained therein, and he would, by its force, be deemed to be finally absorbed in the post held by himThis was, not doubt, an ad interim arrangement until the State Government by rules framed under s.112A(1) provided for the creation of the Centralised Palika Services, common to all the Municipal Corporations and Municipal Boards, and made final absorption of officers and servants serving on the posts included in such Centralised Services under s.112A (2). In the very nature of things, the officers and servants provisionally absorbed under s.577(e) or temporarily appointed under s.577(ee) could not be automatically absorbed in the newly created Centralised Services. There had to be a screening of all such officers and servants with a view to determine their suitability or otherwise for final absorption in Centralised Services. It was particularly necessary to weed out the dead-wood to bring about an overall improvement in the municipal administration in these cities.The very nature of the functions entrusted to the State Government under r.6(2) (iii) of the U.P. Palika (Centralised) Services Rules, 1966 for purposes of final absorption under s.112A o f the Adhiniyam, implies a duty to act in a quasi-judicial manner. It cannot be denied that an officer or servant provisionally absorbed under s.577(e) or temporarily appointed under s.577(ee) had the right to be considered for purposes of final absorption. Such officers or servants, particularly those in permanent employment who had put in 20 to 25 years of service in the erstwhile Municipal Boards or Development Boards were vitally affected in the matter of final absorptionWe are unable to agree with this line of reasoning. The first circular dated January 11, 1967 was all pervasive, and it covered all categories of officers and servants either provisionally absorbed under s.577(e) or temporarily appointed under s.577(ee), irrespective of their salary. The Government policy was made quite clear in that circular, which we have quoted earlierAt this stage, the functions of the Divisional Committees were to be purely recommendatory in nature. The Committees had to make their selection of officers and servants suitable for absorption after an interview of all such officers and servants, and forward their recommendations to the Government, for finalising action in the matter of final absorption under s.112A. The subsequent circular dated January 31, 1967, making a categorisation of the officers and servants concerned, into two groups, reserving the power of selection for final absorption to the State Selection Committee in case of all Centralised Services whose starting salary was Rs. 500/- and more, and entrusting the function to the Divisional Committees in case of those whose starting salary was less than Rs.500/-, was still subject to the Government policy already laid down. It is, therefore, not right to suggest that the State Government was absolved of the "duty to hear" the officers and servants of the erstwhile Municipal Boards and other local authorities drawing Rs. 500/- and aboveAll the officers and servants of the erstwhile Municipal Boards and other local authorities provisionally absorbed under s.577(e) or temporarily appointed under s.577 (ee) were therefore, entitled to be heard in the matter of their final absorption under s.112A read with r.6(2) (iii), irrespective of the ir salaryThe requirements of a fair hearing are fulfilled in the case of officers and servants of the erstwhile Municipal Boards and other local authorities drawing a salary of less than Rs. 500/- but not in the case of those drawing Rs. 5 00/- or moreIt is accepted before us that the appellant Ashfaq Hussain was called for an interview by the Divisional Committee. The State Government in its return has placed material showing that he had a uniformly bad record an d there were adverse entries in his character rolls for several years. It is not disputed that Ashfaq Hussain had been called for an interview by the Divisional Committee. We are not impressed by the submission that the adverse remarks were not put to him when he appeared before the Divisional Committee. It is clear from the two circulars of the State Government dated January 11, 1967 and February 23, 1967 that in all cases in which the services of an officer or servant were to be determined on the ground of his unsuitability, they were to be given an opportunity of personal interview by the Committee. The whole purpose of the personal interview was that when it was proposed to declare such an official unsuitable for absorption, the Committee had to afford an opportunity to appear before it and clear up his position. It is reasonable to presume that when the appellant, Ashfaq Hussain, was called for that purpose, the adverse remarks in his character rolls must have been put to him. On an overall view of the record of service of Ashfaq Hussain, the Divisional Committee was not wrong in recommending to the Government to terminate his services, and the Government was within its rights in passing the impugned order of termination in regard to him.In the case of the appellant Mohd. Rashid Ahmad, it however appears from the return filed by the State Government that no such opportunity was afforded to him before the State Government passed the impugned order dated July 18, 1967 terminating his services. It is evident, no doubt, from the return filed by the State Government that the service record of the appellant was before the Government, on the basis whereof it was decided that he was unsuitable for being finally absorbed and also that the Secretary for Local Self-Government in his note of July 10, 1967 recommended that he was not suitable for final absorption in the Centralised Service s, but it is clear that the Minister for Local Self-Government before passing the impugned order of termination dated July 11, 1967 did not give to the appellant an opportunity of a hearing. The order of termination of his services passed by the State Government, therefore, suffers from a serious legal infirmityIt was said, however, on behalf of the State Government that under s.107(1) of the Adhiniyam no appointment to a post carrying an initial salary of not less than Rs. 500/- per mensem, could be made except after consultation with the Public Service Commission, and that the Commission did not find the appellant fit for appointment as Executive Engineer, Municipal Corporation, Kanpur. It was also pointed out that under s. 108 the appellant could not hold the post beyond the period of one year. It was, therefore, urged that the State Government was justified in terminating the services of the appellant as he could not be finally absorbed in the post of an Executive Engineer in the Centralised Services. It was said that the post had to be advertised for filling up the vacancy as required under s. 107 of the Adhiniyam. We are afraid, the contention cannot be accepted.Under s. 112A (1) of the Adhiniyam, the State Government having by U.P. Palika (Centralised) Services Rules, 1966, constituted the Centralised Palika Services, the appellant Mohd. Rashid Ahmad, who was performing the duties and functions of the post of Executive Engineer under s. 577(ee), was entitled to be considered, if found suitable, for absorption under s.112A(2). Admittedly, the appellant was not heard in the matter of his final absorption. It is also not in dispute that the procedure laid down in the U.P. Palika (Centralised) Services Rules, 1966, was not followed. If the appellant was at all found fit for absorption, it was for the State Government next to decide the suitable post on which he could be absorbed. The method of recruitment provided by r. 20 had to be followed. Evidently, this has not been doneThe two appellants and several other employees of the erstwhile Municipal Boards and District Boards challenged the validity of the various orders passed by the State Government terminating their services before the Allahabad High Court on several grounds. Amongst others, they challenged the validity of r.6(2) (iii), framed under s. 112A of the Adhiniyam, on the ground that it was ultra vires the State Government as it brings about extinction of the relationship of employer and employees between them and the erstwhile MunicipalBoards.It was also urged that the impugned orders were violative of Articles 14 and 16 of the Constitution because the classification made by the State Government by its circular dated January 31, 1967 entrusting the task of determination of the suitability or otherwise of officers and servants holding Centralised Services posts drawing less than Rs. 500/to Divisional Committees, which were enjoined to give them the right of a personal hearing to have their say in the matter of final absorption, and entrusting of such function in respect of officers and servants drawing Rs. 500/and above to the State Selection Committee without a corresponding right of hearing, was without any rational basis . It was also urged that the impugned orders were vitiated being in breach of the rules of natural justice. A Division Bench of the Allahabad High Court, however, rejected all these contentions.In view of the language of Entry 5, List II of the Seventh Schedule, the objection regarding the validity of r.6(2) (iii) was rightly not pressed before us. On the view that we take of the various circulars issued by the State Government laying down the procedure for dealing with the question of suitability or otherwise of officers and servants of the erstwhile Municipal Boards for absorption in the Centralised Services under r.6(2)(iii) the contention based on Articles 14 and 16 of the Constitution also does not arise.