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2008 DIGILAW 2292 (ALL)

ROHINI KUMAR v. STATE OF U. P

2008-11-19

ARUN TANDON, DILIP GUPTA

body2008
JUDGMENT By the Court.—Petitioner before this Court is the elected Chairman of Nagar Palika Parishad, Ghazipur. He is aggrieved by an order of the State Government dated 10.11.2008 as communicated under the orders of the District Magistrate, Ghazipur dated 12.11.2008 whereunder in exercise of powers under Section 48 (2) Proviso of the U.P. Municipalities Act, 1916, an order has been passed suspending the financial and administrative powers of the Chairman. The only reason assigned in the impugned order is that the petitioner in his capacity as Chairman had not sanctioned the salary bill of the Class IV employees appointed by the Executive Officer in the Nagar Palika Parishad, Ghazipur for the purposes of filling up the back log vacancy and further an order was passed by him stopping the salary of such employees. The petitioner has also been asked to show cause as to why he may not be removed from the office of the Nagar Palika Parishad, Ghazipur. 2. The order passed by the State Government is being questioned on the ground that the selections held by the Executive Officer were not in accordance with the Rules. There are serious infirmities/irregularities committed in such selections which were brought to the knowledge of the State Government by the petitioner vide his letter dated 27.11.2007. Reference has also been made to the report submitted by the Chief Revenue Officer dated 22.10.2007, in that regard. 3. With reference to the Division Bench judgment of this Court in the case of Bharat and others v. Nagar Palika, Azamgarh and others, 1994 (2) UPLBEC 745, it is contended that the Chairman of the Nagar Palika Parishad in exercise of his supervisory powers under Section 50 (bb) and clauses (a) and (b) of Section 63 of the U.P. Municipalities Act, 1916 can even cancel the appointments made by the Executive Officer and, therefore, in the facts of the present case if the petitioner has reported to the State Government that the appointments are illegal, he had the competence to stop the salary till the matter was inquired by the State Government qua the appointments made. Even otherwise it is contended that the alleged action of the petitioner cannot be termed to be a misconduct as per Section 48(2) of the U.P. Municipalities Act, 1916. 4. Even otherwise it is contended that the alleged action of the petitioner cannot be termed to be a misconduct as per Section 48(2) of the U.P. Municipalities Act, 1916. 4. Faced with the aforesaid contention, Standing Counsel on behalf of the State respondents submits that since a show cause notice has been issued to the petitioner while suspending his financial and administrative powers, it would be appropriate that the petitioner may be directed to submit his reply to the notice so issued and the State Government be directed to take appropriate decision thereafter, in a time bound manner. 5. We have heard learned counsel for the parties and have gone through the records of the present writ petition. 6. Having examined the show cause notice and the order impugned in the present writ petition, we find that only charge alleged against the writ petitioner who is the elected Chairman for suspension of his financial and administrative powers under Section 48 (2) of the Act is that the petitioner has not signed the salary bill of Class IV employees and had issued orders for stopping their salary. 7. From the record it is apparently clear that the petitioner in fact has reported to the State Government vide letter dated 27.11.2007 the infirmities/irregularities which had been committed in the process of selection in question. The State Government did not examine the aforesaid matter and kept the same pending for nearly a year. 8. In view of the Division Bench judgment of this Court in the case of Bharat and others (supra), we are of the considered opinion that the powers of the Chairman to cancel the appointment of Executive Officer if the process of selection is found to be vitiated would include with its ambit the power to stop the salary, till the legality of the selections held is not examined by the State Government. The Division Bench in the case of Bharat and others in paragraph 7 has held as follows : “However, before parting with the case, we deem it appropriate to consider the other submission of the learned counsel for the appellants. The first submission is that the President had no authority in law to pass the impugned orders terminating the services of the appellants as they were appointed by the Executive Officer in exercise of the statutory authority. The first submission is that the President had no authority in law to pass the impugned orders terminating the services of the appellants as they were appointed by the Executive Officer in exercise of the statutory authority. We have considered this aspect of the matter seriously and in our opinion, Section 50 (bb) and clauses (a) and (b) of Section 63 of the Act give sufficient authority to the president to have a general supervision over the working of the officers which will include the supervision in the matter of appointment of inferior staff. It may be recalled that it is not a case of termination of service of an individual member of the inferior staff but it is a case of cancellation of the entire selection process adopted by a subordinate authority. If the process of selection was unfair, unreasonable and arbitrary, in our opinion, it could be cancelled by the president and under the Act there is no dearth of such authority in him. Further, there is yet another aspect of the matter that even assuming that the order impugned passed by the President was illegal and without authority, this Court may refuse to interfere as if the order impugned is quashed, illegal orders relating to appointments of the appellants shall be revived. This Court should refrain from interfering in such circumstances. As we agree with the conclusion of the learned Single Judge that the appointments were not legal, we do not find it a fit case for interference in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India.” 9. From the aforesaid facts, it is apparently clear that the Division Bench has clarified that it is not a case of termination of service of an individual member of the inferior staff but it is a case of cancellation of the entire selection process which was vitiated. 10. In view of the aforesaid, we are of the considered opinion that in the facts of the present case, the financial and administrative powers of the elected Chairman could not have been ceased so long as the State Government did not examine the legality or otherwise of the selections held by the Executive Engineer on the letter of the petitioner dated 27.11.2007. 11. 11. We, therefore, dispose of the present writ petition by providing as follows : (a) The petitioner shall submit his reply to the show cause notice, within two weeks from today along with a certified copy of this order. (b) The State Government shall consider the reply submitted by the petitioner and shall also examine the complaint made by him qua the selections held by Executive Engineer. The respondent No. 1 shall record a finding as to whether the selections are in accordance with law or not. (c) If the State Government find the selections to be legal and valid, it would be open to the State Government in the facts of the case to pass such further orders as may be warranted under law. (d) The order impugned in the writ petition shall remain in abeyance till the State Government takes its decision. 12. We make it clear that any observations made herein above would not effect the decision to be taken by the State Government, in any manner. 13. With the aforesaid observations, the writ petition is disposed of. ————