Jwala Prasad v. Zila Parishad, Agra — 1974 DIGILAW 219 (ALL)

JUDGMENT H.N. Seth, J. - Jwala Prasad has filed this appeal against the judgment of a learned Single Judge dated 18th December, 1967, dismissing his petition under Art. 226 of the Constitution. 2. Petitioner was appointed as a vaccinator on an initial salary which was less than Rs. 40/-, by the District Board, Agra. He was confirmed on that post in the year 1946. By an order dated 23rd August, 1967, the Mukhya Adhikari, Zila Parishad, Agra, terminated the services of the petitioner. Item then filed the petition giving rise to the present appeal, contending that the Mukhya Adhikari was not competent to determine his employment as the power is vested either in the Adhyaksha, Zila Parishad. or in the Swasthya Adhikari, Zila Parishad Learned Single Judge did not accept this submission and dismissed the petition. 3. Ever since the issue of notification No. 261/1X-1948, dated 31st May, 1946, and as per Rule 2 of the conditions of service of vaccinators employed by District Boards in Uttar Pradesh, published at page 258 of the District Board Manual, the appointing authority of a vaccinator had been the President of the District Board concerned. In the year 1961, the State Legislature enacted Uttar Pradesh Kshettra Samitis and Zila Parishad Adhiniyam, 1961 (hereinafter referred to as the Adhiniyam), providing for the construction of Zila Parishad and Kshettra Samitis in place of the District Board, which had been functioning under the District Boards Act. Chapter IV of the Adhiniyam makes provision which consists of Secs. 39 to 55 regarding officers and servants of Zila Parishad and Kshettra Samitis. Section 39, (1) provides that subject to any special directions issued by the State Government, a Zila Parishad shall have, under the Adhiniyam posts of officers mentioned therein. Sub-sec. (2) enables the Zila Parishad to create other posts of officers and servants in connection with its affairs subject to such conditions as may be prescribed by rules or by the resolution of the Parishad. According to Sub-see. (3) certain Government servants were to be ex-officio officers of the Zila Parishad. Section 43 lays down the authority and the procedure for appointment to various posts under the Zila Parishad. Section 46 of the Adhiniyam then provides that not withstanding the provisions of Secs. According to Sub-see. (3) certain Government servants were to be ex-officio officers of the Zila Parishad. Section 43 lays down the authority and the procedure for appointment to various posts under the Zila Parishad. Section 46 of the Adhiniyam then provides that not withstanding the provisions of Secs. 39 and 43, all officers and servants in the employment of a District Board constituted under the District Boards Act, 1922, and of Antarim Zila Parishad immediately before the appointed date, shall subject to Sub-sec. (2) become officers and servants employed by the Parishad and until appointed to posts created under Section 39, they shall be entitled to same salaries and allowances and will be subject to the same conditions of service to which they were entitled or subject immediately before the appointed date. Sub-sec. (2) of Section 46 lays down the procedure that has to be followed in appointing officers and servants who were the servants of the erstwhile District Board, whose services had been continued under Section 46(1) to posts created under Section 39. This sub-section contemplates that first of all the posts created under Section 39 are to be filled by officers and servants who were the employees of the erstwhile District Board or of the Antarim Zila Parishad and who by virtue of Sub-sec. (1) became the employees of the `Zila Parishad. If, for any post, suitable persons from. out of the aforesaid officers and servants of erstwhile District Bofard or Antarim Zila Parishad are not available, the Zila Parishad has been authorised to appoint outsiders to those posts. If in any case such an officer or servant whose services had been continued under Section 46(1) declines `to accept the post to which he is appointed, on the ground that the pay attached to the post is less than his present time scale of pay, his services had to be terminated alter giving him such notice and on such terms to which he would have been entitled to on abolition of the post held by him as if the Adhiniyam had not been passed. 4. It is not disputed that the petitioner's services as a vaccinator were continued with the Zila Parishad, Agra under the provisions of Section 46(1). He became entitled to continue in the service of the Parishad till appointed to a post created under Section 39. 4. It is not disputed that the petitioner's services as a vaccinator were continued with the Zila Parishad, Agra under the provisions of Section 46(1). He became entitled to continue in the service of the Parishad till appointed to a post created under Section 39. He was entitled to draw the same salary and allowances and was subject to the same service condition to which he would have been entitled to under the provisions of the District Boards Act, 1922. It is again not disputed that Zila Parishad, Agra, has neither created any post of vaccinator under Section 39(2), nor has it absorbed the petitioners in any such post. 5. Rule 3-A(iv) of the rues regarding officers and servants of the District Board, printed at page 189 of the Manual provides that the period of office of an officer or servant of the Board could be determined by the authority competent to appoint his successor, by giving him three months' notice or pay in lieu thereof. Accordingly, services of the petitioner could be terminated by the person competent to appoint his successor and the main question that arises for consideration in this case is whether the Mukhya Adhikari of the Zila Parishad, who passed the impugned order. was competent to appoint the petitioner's successor. 6. Learned Advocate General appearing for the Zila Parishad, contended that posts of vaccinator in the District Board of Agra were created by a notification dated 25th April, 1944 issued under the District Board Act. Section 270(a) of the Adhiniyam provides that a notification issued under the District Boards Act 1922 which was in force in any local area immediately before the appointed date in so far as it is not inconsistent with the provision. of the act, continue in force until superseded by notification issued under the provisions of the Adhiniyam. As no notification under the Adhiniyam, superseding the notification dated 25th April, 1944 has been issued that notification continues to be in force with full vigour and the posts of officers created thereunder continued to exist. Since all the incumbent of those posts have become servants of the Zila Parishad as provided in See, 46(1) it necessarily means that this posts have continued to exist as posts under the Zila Parishad. See. Since all the incumbent of those posts have become servants of the Zila Parishad as provided in See, 46(1) it necessarily means that this posts have continued to exist as posts under the Zila Parishad. See. 43(2) provides that except in the case of teachers and any other class of post.-which the State Government may specify, appointments to the posts connected with any department of the Parishad specified by rules and carrying an initial salary of less than forty rupees per month, shall be made by the head of that department and appointments to all other posts carrying an initial salary of less than forty rupees for month shall be made by the Mukhya Adhikari. At the relevant time, as is evident from the affidavit filed by Prem Narain Jain in the special appeal, the post of Vaccinator, created by the notification of the year 1944 and continued by virtue of Section 270 of the Adhiniyam was not connected with any department of the Parishad specified by the State Government. Accordingly, the appointment of the posts of vaccinator, which carried an initial salary of less than forty rupees, could be made by the Mukhya Adhikari as provided in Section 43(2). The Mukhya Adhikari, therefore, was competent to appoint petitioner's successor and was as such, fully competent to determine petitioner's employment as provided in Rule 3-a(iv) printed at page 189 of the District Board's Manual. 7. After carefully considering the above argument advanced by the learned Advocate General, we arc unable to accept it. The scheme under lying Section 39 and, Section 46 is an integrated scheme which is to be read as a whole Section 39 provides as to what officers and servants would be employed by the Parishad in connection with its affairs. According to Sub-sec. (1) of Section 39, subject to special directions issued by the State Government from time to time, the Zila Parishad is bound to employ the officers enumerated therein in connection with its affairs. Sec. (2) enables the Zila Parishad, to create other posts of officers and servants in connection with its affairs Section 43, thereafter, provides the procedure for making appointments to those posts and lays down :- (1), "Appointments to the posts of Karya Adhikari, Adhiyanta and Karya Adhikari and the post created under Sub-sec. (2) of Section 39 carrying an initial salary of Rs. (2) of Section 39 carrying an initial salary of Rs. 200/- or more per month shall be made by the Parishad in consultation with the State Public Service Commission or such other Commissioner or Selection Board as may be constituted by the State Government in this behalf for all Parishad or any grounds of Parishads separately in either case (hereinafter referred to as the Commission) in the manner prescribed : Provided that if there is difference of opinion between the Commissioner and the, Parishad the matter shall be referred to the State Government whose decision shall be final. (2) "Except `in the case of teachers and any other class of posts which the State Government may specify, appointments to posts connected with any department of the Parishad specified by rules and carrying an initial salary of less than forty rupees per month shall be made by the head of that department and appointments to all other posts carrying an initial salary of less than forty rupees per month shall be made by the Mukliya Adhikari. (3). Except as otherwise provided elsewhere in this Act, appointments to posts under the Parishad, other than those covered by Sub-secs. (1) and (2) shall be made by the Adhyaksha on the advice of the Chunao Samiti, constituted under Section 45 ...." It will be seen that out of the 9 posts mentioned in Sub-sec. (1) of Section 39, 5 of them are to be occupied in ex-officio capacity by certain Government servants mentioned in Sub-sec. (3). So far as the posts of Vittar Adhikari of the Parishad mentioned in Section 39(1) is concerned, it has to he filled in by an appointment made by the State Government. Section 43(1) lays down that the remaining three posts, mentioned in Section 39(1) viz. those of Karya Adhikari, Adhiyanta and Kar Adhikari, and other posts created under Sub-sec. (2) of Section 39, carrying an initial salary of Rs. 200/- or more per month shall be made by the Parishad in consultation with the State Public Service Commission or such other Commission or Selection Board as may be constituted by the State Government in this behalf and in the manner prescribed. Sub-sec. (2) of Section 39, carrying an initial salary of Rs. 200/- or more per month shall be made by the Parishad in consultation with the State Public Service Commission or such other Commission or Selection Board as may be constituted by the State Government in this behalf and in the manner prescribed. Sub-sec. (2) of Section 43 then provides for the procedure for making appointment to the posts carrying an initial salary of less than forty rupees and appointments to the remaining posts which have been created under Section 39 are to be made by the Adhyaksha on the advice of Chunao Samiti under Sub-sec. (3). Section 43 read in its context provides for making fresh appointments to various posts in connection with the affairs of the Parishad. 8. Now Section 46, when it provides that notwithstanding the provisions of Secs. 39 and 43 of the Act, the officers and servants of the erstwhile District Board shall continue to be the employees of the Zila Parishad it merely means that notwithstanding that a post for the purpose has not been created under Section 39 and the 76 procedure for filling the manner provided by Section 43, has not been followed, all officers and servants in the employment of the District Board constituted under the District Board Act, 1922, shall continue to be servants employed by the Zila Parishad till appointed to one of the posts created under Section 39. This section further lays down the procedure for absorbing such employees in the posts created under Section 39. This clearly indicates that the Legislative intent was to give protection to the employees of the erstwhile District Board till such time as they were not absorbed in one of the posts created under Section 39 of the Act. Such posts, if at all, were to continue only for the ad-hoc purpose of accommodating their incumbents till such time as they were absorbed in the posts created under Section 39. It was never the intention of the Legislature that after the incumbent of such post is absorbed one regular post or that the post is vacated, it should be re-filled by the Zila Parishad by making fresh appointment. It was never the intention of the Legislature that after the incumbent of such post is absorbed one regular post or that the post is vacated, it should be re-filled by the Zila Parishad by making fresh appointment. The scheme of these sections read as a whole clearly indicates that the work of the Zila Parishad is to be carried on only by officers and servants appointed to the various posts mentioned in Section 39 and by no one else. However, Section 46 makes an exception to this rule and provides that a particular class of persons mentioned there in can also do the work of Zila Parishad. As the posts created by the erstwhile District Board and which had not been re-created under Section 39 of the Act were, not intended to he filled, no question of making appointments to those posts in accordance with Section 43 of the Act can possibly arise. Section 43, therefore, is necessarily limited to providing a procedure for making appointments only to posts created under Section 39 of the Act. The Mukhya Adhikari was, therefore, not competent to appoint a vaccinator, or petitioner's successor under Section 43 of the Act. Accordingly under Rule 3-4 (iv) printed at page 189 of the District Board Manual, he was not competent to give a notice and determine petitioner's employment. 9. In this connection the learned Advocate General wanted us to consider his submission that under Section 270(a) the notification creating the post of the vaccinator in the year 1949 had been continued, which necessarily meant that appointments to those posts could be made. Section 43 merely provides for a procedure for making appointment to all posts under the Zila Parishad. It does not state that appointment can be made only to posts created under Section 39 and not to posts continued as a result of Section 270(a). In this view of the matter, it is contended that the Mukhya Adhikari would have, jurisdiction to make appointments not only to the posts created under Section 39 carrying initial salary of less than Rs. 40/- but also to the posts continued under Section 270, carrying initial salary of less than Rs. 40/-. This argument proceeds on the basis that the notification creating the posts of vaccinator continued to subsist and that appointment to that post could be made. 40/- but also to the posts continued under Section 270, carrying initial salary of less than Rs. 40/-. This argument proceeds on the basis that the notification creating the posts of vaccinator continued to subsist and that appointment to that post could be made. Section 270 provides for the continuation of the notification issued under the District Boards Act only in as far as they are not inconsistent with the provisions of the Adhiniyam. When in Section 39. the Adhiniyam provides that its affairs would be managed by the officers mentioned in Sub-sec. (1) or by officers and servants appointed to the posts created under Sub-sec. (2) it means that it is not to apply any other class of officers or servants. Petitioner became the employee of the Zila Parishad, not because the post created by a notification covered by Section 270(a) was continued, but because of the specific provisions contained in Section 46 which enabled the Zila Parishad to continue his employment till he was regularly absorbed in one of the posts created under Section 39. It follows that the notification issued in the year 1949, which provided for creation of posts of vaccinator could not continue to be in force consistently with the provisions of Section 39. Accordingly, the notification of 1944 ceased to be operative after the appointed date and no question of the Zila Parishad making an appointment to the posts mentioned therein could arise thereafter. It is thus clear that the Mukhya Adhikari did not have any jurisdiction to appoint petitioner's successor as no vaccinator could be appointed till the post of vaccinator was created under Section 39. 10. Learned Advocate General then pointed out that if it is held that there is no one who can appoint petitioner's successor, it will not be possible to determine his appointment even if it becomes absolutely necessary to do so. Surely the Legislature could not have intended such a situation and no interpretation which may lead to such a incongruous situation should be accepted. In our opinion, there is no force in this submission. Section 46 merely lays down that servants of the erstwhile District Board will continue to be in the employment of the Zila Parishad until appointed to posts created under Section 39. In our opinion, there is no force in this submission. Section 46 merely lays down that servants of the erstwhile District Board will continue to be in the employment of the Zila Parishad until appointed to posts created under Section 39. on the same salaries and allowances and be subject to the same conditions of service to which they were entitled to on the appointed date. Accordingly their services can be terminated by a person who was competent to do so on the appointed date i.e. by a person who could appoint their successor on that date. According to notification dated 31st May, 1946, printed as Rule 2 at page 258 of the District Board Manual, it was tile President of the Board who could appoint a vaccinator or petitioner's successor. Accordingly, under Rule 3-a (iv), it was the President of the District Board who was competent to determine petitioner's employment on the appointed date. Section 270 of the Adhiniyam provides that save as expressly provided by the provisions of this chapter. namely chapter XIV, notifications issued under the District Boards Act in so far as they are not inconsistent with the provisions of the Act will continue. Section 266(1) (b) which finds place in chapter XIV provides that in any notification issued under the District Boards Act, reference to the President or `the Vice-President' of the District Board, shall be construed as reference to the Adhyaksha and Upadhyaksha appointed under the Adhiniyam. Accordingly, in the notification issued in the year 1946 the word `President' is to be read as Adhyaksha of the Zila Parishad. The notification of the year 1946 read also with Secs. 266 and 270 of the Adhiniyam, makes it clear that it is the Adhyaksha of the Zila Parishad who will be deemed to be the person competent to appoint petitioner's successor under Rule 3-A(iv) (printed at page 189 of the District Board Manual) and it will be he who alone will be competent to terminate the services of a vaccinator under rule. 11. We are, therefore, of opinion that the learned Single Judge was not right in holding that the petitioner's services can appropriately be terminated under Rule 3-A(iv) by Mukhya Adhikari. The notice terminating petitioner's services issued by the Mukhya Adhikari was therefore illegal and liable to be quashed. In the result, the appeal succeeds and is allowed with costs. 11. We are, therefore, of opinion that the learned Single Judge was not right in holding that the petitioner's services can appropriately be terminated under Rule 3-A(iv) by Mukhya Adhikari. The notice terminating petitioner's services issued by the Mukhya Adhikari was therefore illegal and liable to be quashed. In the result, the appeal succeeds and is allowed with costs. The judgment of the learned Single Judge dated 13th December, 1967 is set aside. The petition filed by Sri Jwala Prasad is allowed and the order dated 23rd August, 1967, passed by the Mukhya Adhikari, Zila Parishad, Agra determining his employment is quashed.