C. P. Bhaskaran, Chemmarampotta House v. Kozhikode Corporation, Represented Its Secretary
2006-12-15
K.K.DENESAN
body2006
DigiLaw.ai
Judgment :- These writ petitions raise identical questions and hence they are disposed of by this common judgment. Except in WP(C) 23725/2006, the relief prayed in the other writ petitions, mainly, is for a writ of certiorari to quash Government letter dated 10.12.2004 which directs the local bodies to give effect to G.O(P)No:57/02/GAD dated 18.3.2002. The petitioners in WP(C) 23725/2006 on the other hand have prayed for directions to the respondents to enforce Ext.P8 as also G.O dated 18.3.2002 (Ext.P7 in W.P(C)26102/2005). 2. W.P(C) 26102/2005 can be taken as the leading case. The first petitioner is a trade union registered under the Trade Union's Act and the second petitioner is a person working as substitute worker in the second respondent Cochin Corporation. According to the petitioners, Ext.P7 G.O dated 18.3.2002 is meant to confer preferential right, in the matter of appointment to contingent posts in the Government Departments, to those who had worked temporarily during the period of strike by the government employees from 6.2.2002 onwards and the scope of that G.O cannot be enlarged to cover contingent posts in the local bodies. Counsel for the petitioner refers to the third paragraph of Ext.P7 G.O which reads:- "Provisional employees and daily waged employees who have attended duty during the period of strike will be sanctioned Rs.1000/- (Rupees one thousand only) as reward and they will be given experience certificate. This will be arranged by the District Collectors concerned. They will be allowed preference in future appointment for temporary vacancies in Government." Emphasis is placed on the last sentence of the above paragraph where it is stated that those who had worked during the strike period will be allowed preference in future appointment for temporary vacancies in Government. Evidently Ext.P7 is intended to apply to Government departments and the authority to monitor the same is the District Collector of the district concerned. But Ext.P7 order is sought to be extended to local bodies by issuing a direction in the nature of Ext.P8 government letter signed by the Deputy Secretary, Government of Kerala on behalf of the Secretary to the Local Self Government Department. It is contended that Ext.P8 cannot be considered as a direction which has the force of law or having any binding effect on the local bodies. It is not an order issued by the Government in exercise of its executive power under Art.162 of the Constitution of India.
It is contended that Ext.P8 cannot be considered as a direction which has the force of law or having any binding effect on the local bodies. It is not an order issued by the Government in exercise of its executive power under Art.162 of the Constitution of India. It is also contended that neither the Government nor the Secretary to the Government has the power to issue directions in the nature of Ext.P8 in contravention of the provisions contained in the Kerala Municipality Act which has incorporated specific provisions in the matter of appointment of the members of the Municipal Common Service. Reference is made to Section 224 of the Kerala Municipality Act which reads as follows:- "224. Appointing Authorities:--(1) The council shall be the appointing authority in respect of the contingent posts in the Municipal Service and appointment orders in respect of them shall be issued by the Secretary, with the approval of the Council. (2) The Government or the officer authorised by them in this behalf shall be the appointing authority in respect of all other posts whether they are included in the Municipal Common Service or not." Sections 222, 223 and 224 read together will make it clear that the statute has taken care to authorise specified authorities under the Act as the appointing authorities in respect of specified categories of posts. The power and the right to appoint eligible and qualified persons against contingent posts in the Municipal Common Service is specifically conferred on the Municipal Council concerned. Section 6 of the aforesaid Act deals with the Constitution of the Municipal Council. Sub-section (4) of Section 6 says that the Councillors of every Municipality shall be elected by direct election. It is evident from the scheme of the Act that the Municipal Council is a body democratically elected to power and has been conferred specific powers by the plenary legislation. Government is not specified as the appointing authority in respect of the contingent posts in the local bodies. Therefore Ext.P8 letter is without the sanction of law and the local bodies shall not be compelled to enforce the directions contained in that letter. 3. Counsel who represents those seeking to get the benefit of the impugned G.O, submits that the Government is not that powerless as contended by the petitioners in W.P(C) 26102/2005 and that fact is evident from Section 56 of the Kerala Municipality Act.
3. Counsel who represents those seeking to get the benefit of the impugned G.O, submits that the Government is not that powerless as contended by the petitioners in W.P(C) 26102/2005 and that fact is evident from Section 56 of the Kerala Municipality Act. Hence, directions issued in the nature of Ext.P8 are within the jurisdiction of the Government. Section 56 reads as follows:- "56. Power of Government for purposes of control:--(1) Government or the officer authorised by them in this behalf may inspect any office under the control of the Municipality or any movable property kept therein or any immovable property or any work which is in progress. (2) The Government or the officer authorised by them in this behalf may: a) call for any document in the Custody of the Municipality; b) require the (Chairperson or the Secretary) to furnish any return, plan, estimate, statement, account or statistics; c) require the (Chairperson or the secretary) to furnish any information or reports or any matter relating to the Municipality; and d)record in writing any observation for the consideration of the Council, Chairperson or Secretary, as the case may be, in regard to the proceedings or functions of the Council, Chairperson or Secretary. 3) The Chairperson, Secretary and other officers shall be liable for facilitating the exercise of the powers under sub-section (1) and for fulfilling the requirements under sub- section (2). 4) The Government or the officer authorised by them under sub-section (2) shall return to the Municipality any document, register or records received from it within ninety days from the date of its receipt and if necessary, the Government may keep certified copies of the same. 5) The Government may arrange for the conduct of periodical performance audits with respect to the administration of the Municipality and the works and schemes implemented or being implemented by the Municipality in the manner prescribed." A reading of the aforesaid Section makes it clear that the power conferred on the Government is supervisory and is intended to satisfy itself that the local bodies as also offices functioning under the local bodies exercise their powers and discharge duties, in accordance with the provisions of the Municipality Act. Section 56 does not confer power on the Government to issue whatever directions it would deem fit and proper even if those directions are in contravention of the specific provisions in the Kerala Municipality Act.
Section 56 does not confer power on the Government to issue whatever directions it would deem fit and proper even if those directions are in contravention of the specific provisions in the Kerala Municipality Act. I fail to understand how the Government can issue a direction inconsistent with the scheme of the Act and argue that such directions are in exercise of the power to supervise or control the functions of the Municipality as enjoined by Section 56 of the Act. The authority which has to control and supervise the functioning of the local body shall see that the local bodies do things consistent with the provisions of law, cannot issue a direction to the local bodies to contravene the provisions of the Act. It cannot also take away the specific power conferred by the Act to appoint eligible persons against contingent posts and impose fetters in the due exercise of that discretionary power. Any direction given to the Municipal Council to act in a particular manner in the matter of selection of contingent staff is tantamount to unauthorised interference by the Government. I have no hesitation to hold that directions in the nature of Ext.P8 cannot stand legal scrutiny. In the result Ext.P8 is liable to be set aside. I do so. 4. The scope and the area of operating Ext.P7 is confined to government departments only and the same, as such, cannot be applied to local bodies. In the above circumstances the writ petitioners in W.P(C)26102/05, 22513/06 and 7833/05 are entitled to succeed. It follows that the reliefs prayed for by the petitioners in W.P(C) 23725/06 have to be declined. W.P(C) 23725/06 is hence dismissed. Other writ petitions are allowed.