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1973 DIGILAW 159 (KAR)

RAMESH v. STATE OF MYSORE

1973-07-20

V.S.MALIMATH

body1973
( 1 ) THE petitioners in these two writ petitions were working as I Division clerks of the Taluka Development Board of Gokak in the District of Belgaum. The said Taluka Board was superseded by the Government on the 22nd of November 1969 and an Administrator was appointed. After the admirustrator took charge of his office, he passed a resolution on the 15th of June 1970 creating one post of Superintendent and one post of Accountant. On the 16th of June 1970, he passed two orders promoting the petitioners in these two cases as Superintendent and Accountant respectively with effect from 16th June 1970 temporarily and subject to the condition that the creation of posts and their promotion is subject to the approval of the competent authority and that the incumbents should pass the necessary examinations within the prescribed time. In pursuance of the said orders made by the Administrator, the petitioners in these two cases joined duty in the promotional posts and also drew salaries of the higher posts. ( 2 ) ON the 23rd of July 1970 the Chief Executive Officer of the taluka Board passed the orders impugned in these cases whereby he withheld the promotions already made by the Administrator till the sanction of the Government is received and further directed that the pay already drawn by the petitioners be refunded to the Taluka Board account until further orders. It is these orders made by the Chief Executive Officer who has been impleaded as respondent 3 in these writ petitions that are challenged by the petitioners. ( 3 ) SHRI B. G. Naik, learned Counsel for the petitioners in these writ petitions contended that apart from the fact that the action taken by the Chief Executive Officer in these cases is wholly illegal and improper, if such action is not corrected and denounced in an appropriate manner, the same will have the effect of demoralising the administration. There is considerable force in the submission of Shri Naik. ( 4 ) ON the supersession of the Taluka Board and the appointment of the Administrator, the Administrator gets clothed with all the powers of the Taluka Board as provided under S. 202b (2) of the Mysore Village panchayat and Local Boards Act, 1959. The Chief Executve Officer of the taluka Board is an officer who is to carry out the resolutions and orders of the Taluka Board. The Chief Executve Officer of the taluka Board is an officer who is to carry out the resolutions and orders of the Taluka Board. S. 120 of the Act enumerates the functions of the chief Executive Officer. Clause (2) of the said section provides that taking of further action to give effect to the resolutions of the Board is one of the functions of the Chief Executive Officer. If, therefore, the Administrator passed a resolution or orders promoting the petitioners in these two cases to higher posts it was the plain duty of the Chief Executive Officer to give effect to them. The Chief Executive Officer, instead of giving effect to the orders made by the Administrator, has gone a step further in nullifying the effect of the order passed by the Administrator. Though the petitioners had in pursuance of the orders made by the Administrator joined duty and had received salary of the higher posts the Chief Executive Officer has passed orders withholding those promotions and directing the petitioners to refund the salary drawn by them in the promotional posts. Apart from the fact that the action taken by the Chief Executive Officer is wholly without jurisdiction, his action has to be denounced as clearly amounting to insubordination. It has to be noticed that the Administrator was an officer appointed by the Government in these cases. Instead of obeying and implementing the orders of the Administrator, if the Chief executive Officer goes on passing orders nullifying the effect of the orders of the Administrator, it will become impossible for the Administrator to function as the Taluka Board under the Act. It is most unfortunate that the State which has been impleaded as respondent 1 has filed a counter affidavit supporting the action of the Chief Executive Officer. ( 5 ) THE two contentions urged by Shri G. V. Shantharaju are only to be stated to be rejected. His first contention is that the orders impugned are not final orders and therefore not liable for interference under art. 226 of the Constitution. The impugned orders have the effect of depriving the petitioners of the advantage which they had secured on the basis of the orders made by the Administrator. His first contention is that the orders impugned are not final orders and therefore not liable for interference under art. 226 of the Constitution. The impugned orders have the effect of depriving the petitioners of the advantage which they had secured on the basis of the orders made by the Administrator. Merely because the Chief Executive officer has withheld the promotions ordered, till the approval of the State Governnment is obtained, it does not preclude the petitioners from approaching this Court for relief nor does that preclude this Court from exercising its jurisdiction if the circumstances of the case warrant. This is undoubtedly a fit case for interference even if the orders impugned are regarded as being not of a final character. ( 6 ) THE other contention submitted by Shri Shantharaju is, that, as under 8. 120 (7) of the Act, the Chief Executive Officer has the power to make certain appointments the impugned orders are valid. But it is necessary to note that what has been done by the Chief Executive Officer is not to make any appointment, but to nullify the effect of the orders of appointments made by the Administrator. The State Government, therefore, cannot take any assistance from sub-sec, (7) of S. 120 of the Act. ( 7 ) FOR the reasons stated above, the rules issued in both these cases are made absolute. The petitioners are entitled to their costs from respondent advocate's fee Rs. 150 in one set. --- *** --- .