Manjulata v. State of M. P. — 1999 DIGILAW 1019 (MP)

ORDER Srivastava, J. -- 1. The appellant, who had been impleaded as a respondent in Writ Petition No. 240 of 1996 giving rise to the present Letters Patent Appeal, feels aggrieved by the impugned order of the learned Single Judge whereunder allowing the writ petition in part while negativing the claim of the petitioner in that case, the appointment of the present appellant had been quashed with a direction to the respondents No. 1 to 3 requiring them to advertise and fill up the vacancy if available in the post of Homeopathy Chikitsak according to law. 2. The appellant has now come up in appeal against the aforesaid order seeking redress praying for dismissal of the writ petition in its entirety setting aside that part of the order whereunder her appointment has been quashed. 3. We have heard the learned counsel for the appellant as well as the learned counsel representing the contesting respondents at some length, and have perused the record. 4. The facts in brief, shorn of details and necessary for disposal of this case lie in a narrow compass. The writ petition giving rise to this appeal had been filed by Dr. Kesav Das Sharma impleading the State of Madhya Pradesh through the Secretary, Local Self Government, Government of Madhya Pradesh; The Municipal Corporation Gwalior, through its Commissioner, the Commissioner, Municipal Corporation Gwalior and Smt. Manjulata, the present appellant. The petitioner had prayed for quashing of the order dated 18.10.1995 issued by the Commissioner, Nagar Nigam Gwalior whereunder pursuant to the resolution of Sthayee Samiti of the Municipal Corporation dated 21.8.1995 and considering the creation of the post of Homeopathy Chikitsak and the relaxation granted by the State Government to accommodate Smt. Manjulata, she had been appointed on the newly created post of Homeopathy Chikitsak in the time-scale of pay of Rs. 1600-27000 with admissible allowances on a temporary basis with immediate effect subject, however, to any further order. The petitioner had prayed for a direction to the respondents No. 1 to 3 to consider his case for promotion on the post of Homeopathy Chikitsak. 5. The Municipal Corporation Gwalior, the respondent No.2 as well as the Commissioner, Municipal Corporation, respondent No.3 filed a return/counter-affidavit in opposition to the writ petition, denying the claim of the petitioner in regard to his promotion to the post of Homeopathy Chikitsak. 5. The Municipal Corporation Gwalior, the respondent No.2 as well as the Commissioner, Municipal Corporation, respondent No.3 filed a return/counter-affidavit in opposition to the writ petition, denying the claim of the petitioner in regard to his promotion to the post of Homeopathy Chikitsak. However, so far as the first relief claimed by the petitioner about the quashing of the appointment of the present appellant was concerned, the respondents No.2 and 3 sought to justify their action asserting that the said appointment had been granted in compliance of the orders of the State Government. In paragraph No. 5.10 as well as paragraph No.5.12 of the return/counter-affidavit filed by the said respondents, it was stated in clear and categorical terms that the appointment of respondent No.4 had been made in compliance of the order of the State Government, respondent No. 1. 6. It may be noticed that in their return aforesaid, the respondents had also asserted that the appointment of respondent No.4 was made under the orders of the State Government. The State Government had relaxed the requisite eligibility criteria regarding age for appointment of respondent No. 4 and further that the appointment was not made in routine course, but it was made exceptionally...." 7. It was, however, denied that the respondent No.4 had been appointed following the due procedure asserting that this action was neither illegal nor arbitrary, malafide or against the law. 8. A perusal of the counter affidavit/return filed by respondents No.2 and 3 indicates that Smt. Manjulata, the present appellant, who was about 45 years of age had passed her under-graduate examination in the year 1986 and had obtained a degree in Homeopathy Medicine and Surgery from the State Homeopathy Parishad Madhya Pradesh on 14th December 1994. She moved an application addressed to the Minister, Local Government & Urban Welfare. Bhopal praying for granting her an appointment from the special quota pointing out that she belonged to backward class. The Under Secretary, Madhya Pradesh Shashan, Sthaniya Shashan Vibhag issued a letter thereafter on 16/19th December 1994 informing the Administrator, Nagar Palika Nigam Gwalior that he had been directed to request that the post of Ayurvedik Chikitsak sanctioned for the Nagar Palika Nigam Gwalior in the time scale of pay of Rs. The Under Secretary, Madhya Pradesh Shashan, Sthaniya Shashan Vibhag issued a letter thereafter on 16/19th December 1994 informing the Administrator, Nagar Palika Nigam Gwalior that he had been directed to request that the post of Ayurvedik Chikitsak sanctioned for the Nagar Palika Nigam Gwalior in the time scale of pay of Rs. 2000-3500 be kept in abeyance and the person who had submitted the application before the Minister, Sthaniya Shashan be appointed as Homeopathy Chikitsak in the time scale of pay of Rs. 1600-2720 complying with the order of the Minister, Sthaniya Shashan, which had already been sent and the compliance report be sent to his department by Fax. 9. On 27.1.1995, the Chief Secretary, Madhya Pradesh Shashan, Sthaniya Shashan, issued a Fax message requiring the Nigam to inform as to whether Dr. Manjulata had been appointed on the post of Homeopathy Chikitsak or not and in case she had not been appointed so far, her appointment order be issued at once and information in this regard be sent. 10. The matter in regard to the appointment of Dr. Manjulata on the post of Homeopathy Chikitsak was taken up and considered vide the resolution No. 421 dated 21.8.1995. It was found that Dr. Manjulata was aged 45 years and the State Government had issued direction prohibiting fresh appointments. In the aforesaid view of the matter it was unanimously resolved that in case the State Government was prepared to treat this matter as a special case and grants relaxation in the age and further lifts the ban imposed on fresh appointments in that event the Nagar Palika Nigam will not have any objection to appoint her on the post of Homeopathy Chikitsak. Thereafter, the Commissioner, Nagar Palika Nigam Gwalior sent a letter addressed to the Chief Secretary. Madhya Pradesh Shashan, Sthaniya Shashan, Bhopal, seeking an order for creation of post of Homeopathy Chikitsak in the time scale of pay of Rs. 16000-27000 and further an order granting relaxation in age and also to lift the prohibition against fresh appointments to accommodate and appoint Dr. Manjulata as against the said post. The State Government, thereafter vide the letter dated 13.10.1995 issued by Avar Sachiv Madhya Pradesh Shashan, Sthaniya Shashan Vibhag informed the Nagar Palika Nigam that the State Government has created a post of Homeopathy Chikitsak in the time scale of pay of Rs. 1600-2700 for granting an appointment to Dr. Manjulata as against the said post. The State Government, thereafter vide the letter dated 13.10.1995 issued by Avar Sachiv Madhya Pradesh Shashan, Sthaniya Shashan Vibhag informed the Nagar Palika Nigam that the State Government has created a post of Homeopathy Chikitsak in the time scale of pay of Rs. 1600-2700 for granting an appointment to Dr. Manjulata and has further relaxed the restrictions on tile fresh appointments and in the age as sought for. 11. The appointment order dated 18.10.1995 was thereafter issued by the Nagar Nigam in favour of the respondent No.4. 12. Inspite of the opportunity having been provided to the respondent -- State vide the order dated 23.1.1998 and 12.2.1998 no counter-affidavit/return was filed in opposition to the writ petition by the said respondent. It was indicated in the order dated 12.2.1998 passed by this Court that the State should file the return/counter affidavit positively within 10 days and in case the State does not tile any return it would be taken that the State has to me no return. On 3.3.1998 the learned Single Judge noted in the order-sheet that the State inspite of the specific order on 12.2.1998 has nut med the return and it will therefore be taken that it has to tile no return. However, on 17.11.1998 the learned-Single Judge granted a further opportunity to the State Government to file the return within three weeks but even this opportunity was not availed of and no return was med, even though as noted in the order dated 17.11.1998 it was brought to the notice of the Additional Advocate General that the appointment under controversy had been made under the orders of the Minister and it was, therefore, necessary that the return of the State Government be also placed on record. 13. Smt. Manjulata Yadav, the respondent No. 4, filed a return/counter-affidavit in opposition to the writ petition on 26.2.1998. In her return, it was asserted that she had been directly appointed by the Government on compassionate ground. It was indicated that looking to her miserable condition the Government had given a direction to respondent No.2 for giving some appointment to her according to her qualification and the Government had also relaxed the age limit. 14. The learned Single Judge after carefully considering the facts and circumstances brought on record came to the conclusion that the petitioner, Dr. It was indicated that looking to her miserable condition the Government had given a direction to respondent No.2 for giving some appointment to her according to her qualification and the Government had also relaxed the age limit. 14. The learned Single Judge after carefully considering the facts and circumstances brought on record came to the conclusion that the petitioner, Dr. Kesav Das Sharma was not eligible for promotion on the higher post and his petition for promotion could not be entertained and dismissed the same so far as the relief (ii) claimed in the writ petition was concerned. 15. The learned Single Judge further came to the conclusion that from the materials brought on record it was apparent that the selection of the respondent No.4 i.e., the present appellant was contrary to law and was made without following the norms for selection. It was observed that no appointment could be made by the respondents unless the post was advertised and the applications were received by the Municipal Corporation and further that the selection could be made amongst the candidates who had applied for the post. It was held that the respondent No.4, the present appellant had been posted without following the procedure for appointment and it was nothing else except back-door entry at the instance of the Minister of Local Self Government. Observing further that the Minister of Local Self Government had no business to direct that the applications be invited and the persons who had applied be considered. It was also observed that in the present case, no application for appointment had been submitted to the Municipal Corporation Gwalior. There was no advertisement for the post and therefore, the appointment of the respondent No.4 i.e., the present appellant was bad in law being in contravention of the settled principles of law. 16. With the aforesaid observations, the appointment of the respondent No. 4 i.e., the present appellant on the post of Homeopathy Chikitsak was quashed with a direction that if any post of Homeopathy Chikitsak was available with the respondents, it be advertised and be filled-up according to law. 17. 16. With the aforesaid observations, the appointment of the respondent No. 4 i.e., the present appellant on the post of Homeopathy Chikitsak was quashed with a direction that if any post of Homeopathy Chikitsak was available with the respondents, it be advertised and be filled-up according to law. 17. The learned counsel for the appellant has strenuously urged that no case for any interference by this Court had been made out as the petitioner had not challenged the order passed by the State Government dated 13.10.1995 whereunder after creating a post of Homeopathy Chikitsak in the time scale of pay Rs. 1600-2700, the ban imposed on the fresh appointments had been lifted and the relaxation in the age had been granted to accommodate Dr. Manjulata Yadav as against the newly created post and further the petitioner-respondent had failed to challenge even the decision of the Municipal Corporation, Gwalior taken vide its resolution No. 421 dated 21.8.1995 to appoint Dr. Manjulata Yadav on the post of Homeopathy Chikitsak. What has been contended is that the initial order having not been challenged, the same had attained the finality and therefore, there could be no justification for interfering with the consequential order dated 18.10.1995. 18. In the aforesaid connection suffice it to say that the petitioner had challenged the appointment of the respondent No.4, i.e., the present appellant on the post in question and the manner in which the service benefits had been extended to the appellant at the behest of the Minister. The appointment order issued in favour of the present appellant dated 18.10.1995 itself specifically referred to the resolution No. 421 dated 21.8.1995 as well as the order of the State Government dated 13.10.1995, and it had further been recited in the impugned order dated 18.10.1995 that the same was being issued pursuant to them. In such a situation, it cannot be said that either the resolution No. 421 dated 21.8.1995 or the order of the State Government dated 13.10.1995 had attained finality as suggested and they were not open to the judicial review. 19. It may, further, be noticed that in its decision in the case of Vrinda Devi (Smt.) v. Noor Jahan and others. 19. It may, further, be noticed that in its decision in the case of Vrinda Devi (Smt.) v. Noor Jahan and others. reported in 1998 (1) JLJ 210 rendered by a Division Bench of this Court it had been indicated that it all depends upon the facts and circumstances of the case which may be of varied nature where the interference by this Court exercising its extraordinary jurisdiction contemplated under Article 226 of the Constitution mayor may not be warranted. If a case is made out warranting an interference while exercising the jurisdiction envisaged under Article 226 of the Constitution of India expressly providing for the issuance of writs, etc., the High Court cannot shirk its responsibility to exercise its authority to take the appropriate action. In fact, the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India has to be exercised for advancing justice and not to thwart the same. 20. We are of the considered opinion that in a case where the relevant facts established on the record come to the notice of this Court which warrant an action and the intervention of equity is called for, there can be no impediment for issuing an appropriate writ or direction for undoing the wrong if it is required in the interest of justice or public interest. The contention of the learned counsel for the appellant, considering the facts and circumstances brought on record is not at all acceptable. 21. The learned counsel for the appellant has next contended that the appointment of Dr. Martjulata Yadav on the post of Homeopathy Chikitsak was well within the jurisdiction and the State Government was fully competent and the jurisdiction of the State Government in this regard in the exercise whereof the appointment order had been issued is neither justifiable nor could be said to be vitiated in law in any manner. The learned counsel in support of his submission has heavily relied upon the provision contained in section 58 of the Madhya Pradesh Municipal Corporation Act, 1956, as in force at the relevant time. 22. The relevant portion of section 58 of the Municipal Corporation Act, 1956 is to the following effect: 58. The learned counsel in support of his submission has heavily relied upon the provision contained in section 58 of the Madhya Pradesh Municipal Corporation Act, 1956, as in force at the relevant time. 22. The relevant portion of section 58 of the Municipal Corporation Act, 1956 is to the following effect: 58. Appointment and Condition of Corporation officers and servants -(1) Subject to the rules made by the State Government in respect of the set-up, strength, Recruitment, Appointment, Pay-scale, Allowances and other conditions of service of officers and servants of the Corporation, the Corporation shall appoint such officers and servants as may be necessary for the efficient performance of the functions of the Corporation: (i) the power of appointing any person on a municipal post which carries a maximum scale of pay as the State Government may, from time to time, by an order in writing specify, shall vest in the Standing Committee or the Commissioner. (ii) any appointment made within his power by the Commissioner shall be reported for information to the Standing Committee; (iii) every appointment to be made by the Standing Committee, subject to the prior confirmation for the State Government in this behalf, shall be final. (2) Notwithstanding anything contained in sub-section (1), in emergent situation, the Standing Committee may make adhoc appointments for a period not exceeding six months, with prior permission of the State Government. (3) The State Government may depute to any post under the Corporation carrying maximum scale of pay as the State Government may, from time to time, by an order in writing specify such servants of the State Government as it may consider necessary. (4) The terms and conditions of deputation of servants of the State Government including disciplinary control shall be such as may be prescribed. (5) ............ ............ ............ (6) ............ ............ ............ 23. A perusal of the aforesaid provisions indicate that subject to the rules made by the State Government in respect of the set-up, Strength, Recruitment, Appointment, Pay-scales, Allowances and other conditions of service of officers and servants of the Corporation, the Corporation shall appoint such officers and servants as may be necessary for the efficient performance of the functions of the Corporation. It is, therefore, obvious that only such officers and servants can be appointed as may be necessary for the efficient performance of the Corporation. It is, therefore, obvious that only such officers and servants can be appointed as may be necessary for the efficient performance of the Corporation. However, the power of appointing any person on a municipal post which carries a maximum scale of pay, the State Government may from time to time by an order in writing specify vest in the standing Committee or the Commissioner. In case the Standing Committee has to make any appointment, it can do so only with the prior confirmation from the State Government and the decision of the State Government in this behalf is final. 24. It has been urged by the learned counsel for the appellant that the scheme underlying section 58 of the Madhya Pradesh Municipal Corporation Act, 1956, indicates, that it is the decision of the State Government which has been made final in the matter relating to appointment to be made by the Standing Committee has to obtain from the fact that even the Standing Committee has to obtain the prior confirmation from the State Government in respect of an appointment proposed to be made by it. The contention is that since in the present case, the State Government had taken the decision, the Standing Committee was bound to follow the same and the exercise of the jurisdiction by the State Government in the matter relating to the granting of appointment to the appellant cannot be said to be either without jurisdiction or in excess of the jurisdiction. 25. We have given our anxious consideration to the aforesaid submission. 26. In the present case there is no dispute that the Standing Committee stood vested with the jurisdiction to take any decision in the matter relating to the appointment in question. The provision contained in section 58(1) proviso (iii) of the aforesaid Act requiring the obtaining of prior confirmation from the State Government before making an appointment, in our considered opinion is for ensuring that the proposed appointment is in accordance with the rules referred to in section 58(1) of the said Act and further is necessary for the efficient performance of the functions of the Corporation. In case, the State Government finds that the appointment proposed by the Standing Committee is not in accordance with the rules framed under the Act or not required to be made for the efficient performance of the functions of the Corporation, it may refuse the confirmation in which case the proposed appointment automatically gets prohibited and cannot be made. 27. The contention sought to be urged by the learned counsel for the appellant to the effect that the proviso (iii) of section 58(1) of the aforesaid Act vested the State Government with the absolute discretion to appoint any person as against any post and the decision in this regard is final and binding on the Standing Committee is totally misconceived and baseless. In fact, what is contemplated under the proviso (iii) of section 58(1) of the said Act is to ensure a check on the arbitrary, injudicious, uncalled for action of the Standing Committee in case it is found to be contrary to the rules or otherwise than in accordance with law. 28. The aforesaid proviso does not vest the State Government with any such jurisdiction so as to empower to substitute the decision of the Standing Committee with its own decision or to alter the decision exercised by the Standing Committee taken in the exercise of the jurisdiction which stands vested in it under the Act. The State Government can only interfere in the decision of the Standing Committee in case it is found to be vitiated in law and is not to be in the public interest. 29. The State Government can interfere in case it finds the decision of the Standing Committee in the matter relating to the appointment to be vitiated in law or having been reached in exercise of the power which amounts to a abuse or is in excess of jurisdiction apart from lacking in the bona fides depending upon the facts in a given case. Rule of law, it must not be lost sight of, does not completely eliminate the discretion in the exercise of power as it is unrealistic. The provision in question only makes its permissible for the State Government to control this exercise of power by the Standing Committee by refusing to accord the approval in case it comes to the conclusion that it is otherwise than in accordance with law. 30. The provision in question only makes its permissible for the State Government to control this exercise of power by the Standing Committee by refusing to accord the approval in case it comes to the conclusion that it is otherwise than in accordance with law. 30. An element which is essential for the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred and by no one else. This exercise of power by the Standing Committee is sought to be controlled by making a provision for obtaining the prior approval from the State Government. But in the garb of exercising such limited jurisdiction, the concerned authority cannot be forced to act on the dictates of an other superior authority. Authorities directly entrusted with the statutory discretions, are entitled and are often obliged to take into account consideration of public policy, and in some context the policy of a Minister or of the Government as a whole may be a relevant factor in weighing those considerations; but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given by binding instructions by a superior. 31. The State Government may lay down norms and guidelines for guidance of the Appointing Authority and violation of such norms and guidelines may, in appropriate cases, call for an action against the concerned authority but the statutory power conferred upon the Appointing Authority cannot be permitted to be usurped by any superior authority. An order which has been passed on the dictates of the superior officer by any Appointing Authority cannot be sustained in law. 32. It must be emphasised that absence of arbitrary powers is the essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law discretion when conferred upon an executive authority must be conferred with clearly defined limits. If a decision is taken without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with law. Further, the Rule of law clearly signifies that a decision should be more by the application of known principles and Rules. If a decision is taken without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with law. Further, the Rule of law clearly signifies that a decision should be more by the application of known principles and Rules. It must not be forgotten that in our present system the Government is not a "Government of men" but is a "Government of law". Law is not to be broken but it is to be obeyed and the respect for the law is not retained by demonstration of strength but by better appreciation of the reasons, better understanding of its reality and its implicit obedience. It is unfortunate that on account of lack of understanding and lack of vision and further lack of proper application in the present day affairs, the law sometimes falls in crisis. 33. In the present case the facts glaring on the record indicate that the Minister concerned directly entertained the application for appointment on a non-existing post and at his behest the Government insisted that the Corporation takes a decision to appoint the appellant. The Corporation resisted and was not prepared to accede to the demand and brought to the notice of the Government that the proposed appointee could not be given any appointment not only because there was no post but she did not satisfy the eligibility criteria and was over age. The State Government, on objection so raised, only to facilitate the making of the appointment, created a post, lifted the ban and granted a relaxation in the rules for accommodating a single person to fulfil the wishes of the Minister without realising that the appointment as envisaged under section 58 of the Act had to be necessary for the efficient performance of the functions of the Corporation and not to accommodate a person of the liking of the Minister and such appointments are not required to be made to provide, financial help to a person who was not even entitled to compassionate appointment unless the essential minimum eligibility criteria fixed by the State Government itself stood satisfied. The sequence or events noticed hereinabove unmistakably point out the undue haste and undue insistence in securing an appointment in favour of the appellant giving all norms a go by. The sequence or events noticed hereinabove unmistakably point out the undue haste and undue insistence in securing an appointment in favour of the appellant giving all norms a go by. The sanctioned post carrying a higher time scale of pay was put in abeyance and against that post a lower time scale of pay was created to accommodate the appellant treating her case as a special case. The post of a Doctor/Chikitsak is a post of great responsibility. It has to be a selection post as the effort ought to be to secure the services of a qualified experienced Chikitsak and this selection has to be on merits not on individual whims. No reason whatsoever had been indicated for putting in abeyance the duty sanctioned post of Ayurvedic Chikitsak and not appointing a qualified person on the said post on merits. No reason is forthcoming to justify the omission to make an open selection ensuring that the appointment is made on the criteria of merit. 34. It must not be lost sight of that foundation of democracy is faith in the capacities of human nature and in the human intelligence and further in the power of pooled and co-operative experience. The Standing Committee which stands vested with the jurisdiction to select and appoint a person has to take its own decision in the matter. This decision can be interfered with by the State Government in exercise of the power retained by it under the proviso (iii) to section 58 (1) of the Act. But, in the present case the reverse was done. The State Government itself took the decision and forced the standing Committee and elected body to implement the same removing all hurdles created by itself and that too for a single person ensuring that the Standing Committee may not take a decision contrary to the dictates of the Minister. Such a course of action was not permissible in law and cannot be sustained. 35. If the matter is viewed from the angle indicated hereinabove, that being the only view, we find no difficulty whatsoever in refusing to interfere in the impugned order. 36. This appeal consequently fails and is hereby dismissed. 37. There shall, however, be no order as to costs.