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2001 DIGILAW 129 (JK)

Vijay Gupta v. State Of J. &K.

2001-07-06

T.S.DOABIA

body2001
1. A Government Order issued on 22-04-1998 whereby the Commissioner & Secretary to Government, Housing & Urban Development Department has formed an opinion that the petitioners had not done any extra-ordinary work which warranted grant of advance increments, is subject matter of challenge in this petition. For facility of reference the above order is being reproduced below:- "Government of Jammu and Kashmir Civil Sectt: Housing & Urban Development Department. Government Order No: 159-HIDU (LSG) of 1998 Dated: 22-04-1998 Whereas Executive Officer, Jammu Municipality vide endorsement No. Mj/Estt/ PA/276-70 dated: 22-11-1997 has issued an Order sanctioning two advance increments in favour of S/Sh. B.S. Jamwal and Vijay Gupta Chief Khilafatwarzi Officers of Jammu Municipality. Whereas per Section 51 of the Jammu and Kashmir Municipal Act only the Government is competent to sanction such increments in favour of Municipal Officers. Whereas the Government considered this issue and is of the opinion that S/Sh. B.S. Jamwal and Vijay Gupta Chief Khilafatwarzi Officers of Jammu Municipality have not rendered any extraordinary service which warrant sanctioning of such advance increments. Therefore, the order of the Executive Officer issued vide endorsement No: MJ/ Estt/PA/267070 dated: 22-11-1997 sanctioning advance increments in their favour is hereby set aside. By order of the Government. Sd/ (P.O. DharChakrabarti) Commr & Secretary to Govt." 2. The basic contention of the two petitioners is that in the capacity of Chief Khilafatwarzi Officers they had done extraordinary work. They had shown dedication, devotion and integrity to the entire satisfaction of their superiors. On account of their distinguished service, they were allowed two advance increments. An order to this effect, copy whereof is annexure D was passed. For facility of reference this order is being reproduced below:- "Office of the Executive Officer, Jammu and Kashmir Municipality, Jammu. ORDER After having closely watched the performance of the Municipal Officers during the current financial year 1997-98, it has been noticed that Sh. B.S. Jamwal and Sh. Vijay Gupta, Chief Khilafatwarzi Officers of the Jammu Municipality have rendered extra ordinary good service to the Municipality Jammu which calls for a special mention and encouragement. They fearlessly worked for the interest of the Municipality, Jammu despite all odds and even at risk to their lives to check the menace of Khilafatwarzi/encroachment in the city. They are responsible to raise me compounding fee at a record level. They fearlessly worked for the interest of the Municipality, Jammu despite all odds and even at risk to their lives to check the menace of Khilafatwarzi/encroachment in the city. They are responsible to raise me compounding fee at a record level. They shown excellent performance and devotion to duty while removing unauthorised constructions/encroachments in the city. Now, therefore, two advance increments are hereby sanctioned w.e.f. 01 -01 -1997 as incentive each in favour of S/Sh. B.S.Jamwal and Vijay Gupta, Chief Khilafatwarzi Officers of the Jammu Municipality. By order of the Administrator, Jammu Municipality. Sd/ (Ravi Thussu) Executive Officer." 3. It is the conferring of this benefit which has been taken away by the State Government. This has basically been done on the plea that the power to grant advance increments vested in the State Government and the order issued in this regard by the Executive Officer of the Jammu Municipality is not in accordance with the law. As the State Government has exercised power under section 51 of the J&K Municipal Act of Samvat 2008, it would be apt to notice this provision also. This reads as under:- "51. Appointment and Salary of other Principal Officers- The Government may in consultation with the president of the Council, concerned, appoint fit, proper and duly qualified persons to be the Medical Officer of Health, the Executive Engineer, the Assistant Engineer, the Secretary, the Revenue and Khilafatwarzi Officer, Horticulture Officer and Octroi Officer or any other gazetted officer required by the Council for whom a post exists." Other provision which as some relevancy for the disposal of this petition is section 53. This is also being reproduced below:- "53. Payment of pension and gratuities to Municipal Officers and servants.- The Council may pay pensions, gratuities, compassionate allowances to its officers and servants and make on their behalf payments to Provident Fund, annuity funds and grant leave or acting allowances in accordance with the bye-laws to be made in this behalf." 4. Before dealing with the legal aspect, it would be apt to notice the stand taken by the Municipal Council. In the objections preferred by it, a categoric stand has been taken that the two petitioners were conferred the benefit of advance increments by the Municipality keeping in view their dedication to work. This has been described as" par excellence in performance. In the objections preferred by it, a categoric stand has been taken that the two petitioners were conferred the benefit of advance increments by the Municipality keeping in view their dedication to work. This has been described as" par excellence in performance. The Municipality is of the considered opinion that it is for the Municipality to confer this benefit on its employees. This having been done bonafide cannot be made subject matter of challenge by the State Government. What is said in the reply given in para 3-4 and 11 are reproduced below:- "3-4. That the contents of these paras are matter of record and the same can be produced before the Honble Court as and when directed. It is further submitted that officers of the Municipality conferred with the powers of allowing advance increments to employees are best judge to assess the merit, ability and dedication of its employees and as such the petitioners were rightly conferred with the benefits of advance increments. 11. That the contents of para 1 are mostly not relating to answering respondents, however, the answering respondents are best judge to assess the merit, competency and performance of their officials in the matter of extraordinary incentive to them." 5. So far as the State Government is concerned, for reasons best known to it, has not chosen to file any counter affidavit. Thus the stand of respondents 3 and 4 is that two advance increments were rightly given. It is grant of this benefit which has been taken exception to by the State Government. It be seen that so far as section 51 of the Municipal Act is concerned, it deals only with the matter of appointing persons to the post of Medical Officer of Health, the Executive Engineer, the Assistant Engineer, the Secretary, the Revenue and Khilafatwarzi Officer. After the appointments are made, the State Government so far as section 51 is concerned, would become functuous officio. So far as the grant of allowance including compassionate allowances are concerned, powers stand vested in the Council. This is apparent from section 53, therefore, when section 51 of the Municipal Act is read as it is, it becomes apparent that it confers no power on the Government to interfere in the manner which has been done in this case. So far as the grant of allowance including compassionate allowances are concerned, powers stand vested in the Council. This is apparent from section 53, therefore, when section 51 of the Municipal Act is read as it is, it becomes apparent that it confers no power on the Government to interfere in the manner which has been done in this case. The only enabling provision where the State Government could have acted is the one contained in section 258 of the Municipal Act. Sub-section(l) and (2) of section 258 are relevant and reproduced below:- "258. Power to suspend any resolution or order.- (1) If the Government are of the opinion that the execution of any resolution or order of the Council or of any other Municipal authority or officer subordinate thereto or the doing of any act which is about to be done or is being done by or on behalf of the council, is not in conformity with law or with the rules or bye-laws made thereunder, or is likely to lead to a breach of the peace or to cause injury or annoyance to the public or to any class or body of persons or is likely to cause waste or damage of Municipal Funds, the Government may, by order in writing, suspend the execution of such resolution or order or prohibit the doing of any such act. (2) A copy of such order of the Government shall thereupon be sent to the Council by the Government." No doubt, under the aforementioned section, in the exercise of power to control vested in the State Government in Chapter XXVI, the State Government could suspend any resolution or order of the Council but before this could be done an opportunity of hearing was required to be given to the Municipal Council. An opportunity of hearing was required to be given not only to the Municipal Council but also to the person likely to be affected. In this regard it would be apt to refer to decision of the Lahore High Court in a case reported as AIR 1936 Lahore 689 "Mistri Mohammad Hussain Vs. Municipal Committee, Sialkot and also the decision reported as AIR 1949 Allahabad 56 "Mahadeo Prasad Vs. U.P. Government." This precise question was also dealt with in a case reported as (1992) Punjab Legal Reports and Statutes 613, "Kanwaljit Kaur and others Vs. Municipal Committee, Sialkot and also the decision reported as AIR 1949 Allahabad 56 "Mahadeo Prasad Vs. U.P. Government." This precise question was also dealt with in a case reported as (1992) Punjab Legal Reports and Statutes 613, "Kanwaljit Kaur and others Vs. Punjab State and others." What is said in paragraph 5 & 6 is quoted below:- "5. On the other hand, learned counsel for the respondents-State, as well as for the Municipal Committee raised a preliminary objection that the petitioners had no locus standi to challenge the validity of the order of the State Government annuling the resolution of the Municipal Committee and it is only the Municipal Committee which could make any grievance regarding the annulment. They further submitted that the reasons given in the impugned order was not the only reason to annul the resolution of the Committee and there were some other grounds also which had been mentioned in the written statement and were borne from the record. In support of the preliminary objection, the learned counsel for the respondents cited Shri Baldev Raj Sharma Vs., The State of Punjab and another, 1972 PLR 144; Karam Singh Vs. The State of Punjab and others, 1979 PLR 426; Jagdish Rai Chawla Vs. The State of Punjab and others, 1988 (4) Punjab Legal Reports and Statutes 661 and Shri Subhash Chandra and others Vs. Municipal Corporation Delhi and another, AIR 1965 Supreme Court 1275. 6.1 have gone through the above-said authorities and find that in none of these cases any right had come to vest in an individual by virtue of the resolution of the Municipal Committee and further it was held that the individual had no right to be heard before the annulment of the resolution as they were not the affected persons. However, in the present case, as observed above, the petitioners had in fact joined in pursuance of the resolution of the Municipal Committee and that resolution was not subject to any approval of the State Government. A right had come to vest in them that till their services were legally terminated they would continue in service. In the present case, they are not challenging the annulment of the resolution on the ground that they were not heard prior to the passing of the impugned order by the State Government. To be fair to the learned counsel for the petitioners, he cited S.L. Kapur Vs. In the present case, they are not challenging the annulment of the resolution on the ground that they were not heard prior to the passing of the impugned order by the State Government. To be fair to the learned counsel for the petitioners, he cited S.L. Kapur Vs. Jagmohan and others, AIR 1981 SC 136 to contend that the Supreme Court had held that persons like the petitioners had a right to be heard before the State Government was to pass an order detrimental to them. It is not necessary for me to go into this aspect. For the aforementioned reasons, I overrule the preliminary objections of the respondents." 6. As per the editorial note a Letter Patent Appeal was preferred in the above case by the State and the same was dismissed. The ratio of the above decision is fully applicable to the facts of this case. 7. In the present case the opportunity of hearing was not given neither to the Municipal Council nor to the petitioners. Therefore, order dated: 22-04-1998 by which advance increments given to the petitioners were withdrawn is held to be void and the same is quashed. The Government is left free to pass fresh order after affording an opportunity of hearing to the petitioners and also to the Municipality.