Sayeeduz Zafar v. State of Bihar — 1990 DIGILAW 292 (PAT)

ORDER 1. This writ application has been filed on behalf of the petitioner for quashing two notifications dated 18th April, 1990. By the first notification the services of the petitioner has been withdrawn with immediate effect by the Urban Development Department, Government of Bihar and by the other notification respondent no. 6, Sri Subodh Kumar Sinha, who was then Assistant Engineer in the Zila Parishad, Samastipur, has been directed to act as the Executive Officer of the Rosera Municipality in addition to his own duties. 2 There is no dispute that before the issuance of the aforesaid notifications, the petitioner, who is an employee of the Urban Development Department, had been deputed to the aforesaid Rosera Municipality to act as the Executive Officer of the said Municipality. On behalf of the petitioner it was pointed out that he has been recalled to his parent department from the post of Executive Officer, Rosera Municipality, at the instance of Sri Subodh Kumar Sinha, respondent no. 5, on whose behalf a Member of Legislative Assembly addressed a letter dated 29.3.1990 to the Minister, Urban Development Government of Bihar, requesting the Minister to withdraw the petitioner to the parent department and to post respondent no. 5, who was then Assistant Engineer in Zila Parishad, Samastipur, to act as Executive Officer of the said Municipality. A copy of that letter has been annexed to this writ application and marked as Annexure 9. The Member of the Legislative Assembly had made complaint against the acts and omissions on the part of the petitioner and suggested that the services of the petitioner be withdrawn and in his place respondent no. 5 be posted as Executive Officer as early as possible. On that letter it appears that the Minister, Urban Development, had passed on order that a note be put up in terms of the recommendation made by the Member, Legislative Assembly. It is the case of the petitioner that because of the aforesaid communication his services had been withdrawn by his parent department. 3. The other ground of attack, which has been made on behalf of the petitioner is that respondent no. 5, being an employee of the Zila Parishad, could not have been posted as Executive Officer in view of the provisions of section 37 of the Bihar & Orissa Municipal Act, 1922 (hereinafter referred to as 'the Act'). 3. The other ground of attack, which has been made on behalf of the petitioner is that respondent no. 5, being an employee of the Zila Parishad, could not have been posted as Executive Officer in view of the provisions of section 37 of the Bihar & Orissa Municipal Act, 1922 (hereinafter referred to as 'the Act'). The relevant part of section 37 of the Act is as follows:– 37. Appointment of Executive Officers:– (1) The State Government may appoint an Executive Officer in any Municipality. (2) The State Government may create a cadre of Executive Officers and may prescribe rules for appointment, qualifications, control, leave, gratuity, pension, provident fund benefits and punishment of officers borne on that cadre and other Executive Officers. Provided that till the creation of such cadre and the appointment of Executive Officers therefrom, the State Government may depute any suitable officer of Government to act as an executive Officer." It was pointed out that in view of sub section (2) the State Government is to create a cadre of Executive Officers, but till the creation of such cadre "the State Government may depute any suitable Officer of the Government to act as the Executive Officer." As the respondent no. 5 is not an officer of the State Government in view of the proviso aforesaid, he could not have been appointed to act as the Executive Officer of the Municipality in question. 4. At the stage of admission itself affidavits have been filed on behalf of the respondents including respondent no. 5. It appears to be an admitted position that no cadre of Executive Officers has been created and, as such, the State Government has been deputing its officers from time to time to act as Executive Officers in different municipalities. It also does not appear to be in dispute that respondent no. 5 is not an officer of the State Government, he had been appointed as an Assistant Engineer by the Zila Parishad, Samastipur. If he is in employee of the Zila Parishad, Samastipur, then he cannot be held to be officer of the State Government, who could have been deputed by the State Government in exercise of the power conferred by proviso to sub section (2) of section 37 of the Act. 5. Mr. Tara Kant Jha the learned counsel appearing for the respondent no. 5. Mr. Tara Kant Jha the learned counsel appearing for the respondent no. 5, however, urged that the impugned notification by which respondent no. 5 has been directed to act as Executive Officer of the said Municipality shall not be deemed to have been issued under proviso to sub section (2) of section 37A of the Act rather the said notification shall be deemed to have been issued under sub section (1) of section 37D of the Act. Sub section (1) of section 37D of the Act is as follows:– "37D. Grant of leave of absence to Executive Officer – (1) During any absence on leave or otherwise of the Executive Officer for a period exceeding fifteen days at a time the State Government may appoint a person to act as the Executive Officer." 6. According to the learned counsel for the respondent it is open to the State Government during absence of the Executive Officer on leave or otherwise which shall also cover the present case, to appoint any person to act as the Executive Officer. In our opinion, sub section (1) of section 37D of the Act shall be applicable when the post of the Executive Officer is not vacant; only the Executive Officer is on leave or otherwise absent and is not performing his duty as the Executive Officer of the Municipality in question. It need not be pointed out that the expression "otherwise" has to be read in context with "absence on leave" on the principle of ejusdem generis. To put it in a different language the Executive Officer, who has been appointed in the Municipality in question, must continue as such, but for one reason or the other he is absent either on leave or otherwise and during his temporary absence the function of the Executive Officer may be entrusted by the State Government to any person. In the instant case by the first notification the services of the petitioner were recalled from the post of Executive Officer of the Municipality to the parent department. As such, the office of the Executive Officer of the Municipality in question became vacant and there was no question of any temporary absence of the Executive Officer on leave or otherwise. Then any other person could have been deputed or appointed in accordance with sub section (2) of section 37A of the Act only. 7. As such, the office of the Executive Officer of the Municipality in question became vacant and there was no question of any temporary absence of the Executive Officer on leave or otherwise. Then any other person could have been deputed or appointed in accordance with sub section (2) of section 37A of the Act only. 7. We are of the view that the notification directing the respondent no. 5 to act as the Executive Officer of the said Municipality shall be deemed to be a notification by the State Government in exercise of the power under section 37A (2) proviso of the Act. We may point out that in the notification in question section 37A has been mentioned, but for reasons best known to the department concerned there is also reference to sub section (1) and sub section (7), which according to us, have no relevancy with the notification in question, sub section (1) of section 37A of the Act says that the State Government may appoint an Executive Officer in any Municipality. Sub Section (7) of section 37A empowers the State Government to transfer any Executive Officer from one Municipality to another. Both the aforesaid subsections will apply when appointment or transfer is being made of an Executive Officer. As admittedly a cadre of the Executive Officer as contemplated by sub section (2) of section 37A of the Act has not been created there is on occasion for exercise of power under sub section (7) of section 37 A of the Act. Any way, it is well known that wrong mention of any section or sub section is not very material. In view of the provisions aforesaid there is no escape from conclusion that respondent no. 5, who is not the officer of the State Government could not have been directed to act as the Executive Officer of the said Municipality. 8. On the finding aforesaid, we do not consider it necessary to test the validity of that notification in light of the other statement made on behalf of the petitioner that the said notification has been issued in respect of respondent no. 5 on the recommendation of a Member of Legislative Assembly without application of an independent mind by the State Government. 5 on the recommendation of a Member of Legislative Assembly without application of an independent mind by the State Government. It may be pointed out that a Bench of this Court in the case of Sri Abdul Muttalib vs. State of Bihar & other, 1985 PLJR 931, has pointed out that it is always open to the Members of Legislative Assembly and Council to bring to the notice of the State Government any act or omissions on the part of any Government servant, but that power does not extend to suggesting that a particular officer be posted on that post after the transfer of the officer, who was holding that post. It has also been pointed out in that judgment that the State Government has to apply its independent mind on such recommendations and not to act merely on the recommendations made by such representatives of people because in many cases it may amount to ouster of an officer without the complaint being examined by the State Government. 9. Accordingly, the impugned notification under memo no. 1449 dated 18.4.1990 (Annexure–l/A) issued by the State Government directing the respondent no. 5. Sri Subodh Kumar Sinha, to act as the Executive Officer of the Municipality, is quashed. 10. As regards the question as to whether the notification dated 18.4.1993. (Annexure 1) recalling the petitioner to his parent department should also be quashed, it was pointed out on behalf of the petitioner that but for the letter addressed by the Member of the Legislative Assembly to the Minister, Urban Development, there was no occasion to recall the services of the petitioner to his parent department and in this connection reliance was again placed on the aforesaid judgment of this Court in the case of Sri Abdul Muttalib (supra). It may be pointed out that the said case is in connection with an order of transfer. That principle cannot be extended where the service of an officer, who is on deputation to some other department or post, is recalled by his parent department. The principle of deputation is that an officer is deputed to act in some other department or against a post not belonging to the department for the time being. That principle cannot be extended where the service of an officer, who is on deputation to some other department or post, is recalled by his parent department. The principle of deputation is that an officer is deputed to act in some other department or against a post not belonging to the department for the time being. As such, the petitioner has no right to invoke the writ jurisdiction of this Court for issuance of a writ of mandamus directing his parent department to continue him again on the post of Executive Officer of the Municipality. 11. On behalf of the petitioner it was pointed out that there has been a misappropriation of huge amounts belonging to the municipality by the officer and the employees of the said Municipality and the petitioner was pursuing the matter so that appropriate actions are taken against the persons who are responsible for the misappropriation of several lacs of rupees belonging to the municipality. In this connection our attention was drawn to a letter dated 7.4.1990 issued by the Department of Urban Development to the District Magistrate, Samastipur, drawing the attention to a letter dated 7.3.1990 addressed by this petitioner. In that letter a direction has been given by the State Government that the Cashier of the municipality be directed to deposit Rs. 2,75,000/- immediately in the account of the municipality. It has been further directed that if the aforesaid amount is not deposited within time, a first information report be lodged against the Cashier and departmental proceeding be initiated against him. The learned Advocate General, who has appeared for the State, rightly pointed out that the State Government has already issued direction to take appropriate action in connection with the alleged misappropriation of the fund of the Municipality. It may be mentioned that another writ application (C.W.J.C. No. 2800 of 1990) has been filed on behalf of a Councilor of the Municipality that the aforesaid direction given by the State Government should be implemented by the District Magistrate. 12. Accordingly, we direct the District Magistrate, Samastipur to take necessary steps against the person or persons who may be responsible for misappropriation of the fund of the municipality or who are found to have committed any financial irregularity because that will only be in the interest of public in general. 13. 12. Accordingly, we direct the District Magistrate, Samastipur to take necessary steps against the person or persons who may be responsible for misappropriation of the fund of the municipality or who are found to have committed any financial irregularity because that will only be in the interest of public in general. 13. This writ application is allowed to the extent that the notification dated 18.4.1990 issued by the Urban Development Department directing Sri Subodh Kumar Sinha (respondent no. 5) to act as Executive Officer of the said Municipality is quashed, but the prayer to quash the notification of the same date (Annexure–1) so far recalling the service of the petitioner to the parent department is concerned, is dismissed. Allowed in part.