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Madhya Pradesh High Court · body

2012 DIGILAW 538 (MP)

Sujjet Kumar Nigam v. State of M. P.

2012-05-15

J.K.MAHESHWARI

body2012
JUDGMENT : Being aggrieved by the order Annexure-P/5 passed by Chief Municipal Officer, Municipal Council, Damon imposing the penalty of withholding one increment with non-cumulative effect as per the resolution of President-in-council, the petitioner filed the present petition. 2. Shri Ghildiyal, learned counsel for the petitioner, contends that the petitioner is a person appointed on the post of Sub Engineer as per subsection (4) of Section 94 of Municipalities Act, 1961 (hereinafter referred to as 'the Act of 1961'). Such employees are governed by the rules which are known as M.P. Municipal Employees Recruitment and Conditions of Service Rules, 1968 (hereinafter referred to as 'the Rules of 1968'). As per Rule 51, a person appointed under sub-section (4) of Section 94 of the Act, the Municipal Council is having power to impose the penalty so specified under Rule 49 of the Rules of 1968. Being Sub Engineer and appointed under subsection (4) of Section 94 of the Act, order imposing penalty so passed by the President-in- council of Municipal Council, Damoh is without jurisdiction and the order Annexure-P/5 is illegal and void-ab-initio. 3. Per contra, Shri Anshuman Singh, learned counsel for respondents 4 and 5, by filing return has stated the fact that the petitioner is governed by the rules which are known as M.P. State Municipal Service (Executive) Rules, 1973 (hereinafter referred to as 'the Rules of 1973'). Proceedings have been initiated under the said rules and after participation without raising any objection, order of penalty has rightly been passed by the Chief Municipal Officer, Municipal Council, Damoh on the resolution of President-in-council imposing penalty against the petitioner, however, the action so taken by President-in-council is under the provisions of the said rules. During the course of hearing attention of this Court has been drawn to rule making power of the Rules of 1973 as well as the Rules of 1968 referring the provisions of Section 95 and 355 of the Act of 1961 and it is urged that being an employee of State Municipal Service, the petitioner shall govern by the provisions of Section 88 of the Act and the Rules of 1973 have its application. In such circumstances, the order has rightly been passed by the authority competent. 4. In such circumstances, the order has rightly been passed by the authority competent. 4. After hearing learned counsel for the parties and to deal with the rival contentions, relevant provisions of the Act and the rules is required to be reproduced which reads as under: "94. Appointment of Staff.-(1) Every Council having an annual income of five lakhs of rupees or more shall, subject to rules framed under Section 95, appoint a Revenue Officer and an Accounts Officer and may appoint such other officers and servants as may be necessary and proper for the efficient discharge of its duties. (2) Every Council not falling under sub-section (1) shall, subject to rules framed under Section 95, appoints a Sanitary Inspector, a Sub-Engineer, a Revenue Inspector and an Accountant and may appoint such other officers and servants as may be necessary and proper for the efficient discharge of its duties: Provided that such Council may appoint a part time Health Officer or an Engineer on such terms and conditions as the State Government may approve in this behalf. (3) The State Government may - (i) in case of any Council, relax the provisions of sub-section (1) or subsection (2) as the case may be, subject to such conditions as it may think fit to impose; or (ii) grant permission to any Council to appoint whether temporarily or otherwise one person to discharge the duties of any two or all such officers. (4) The appointment of Revenue Officer, Accounts Officer, Sanitary Inspector, Sub-Engineer, Revenue Inspector and Accountant shall be subject to confirmation by the State Government and no such post or the post of any other officer or servant as may be specified by the State Government in this behalf shall be created or abolished and no alteration in the emoluments thereof shall be made without the previous approval of the State Government, and every appointment to, and dismissal from such post, shall be subject to a like approval. (5) No order of suspension for a period exceeding one month shall be passed against any officer mentioned in or specified under subsection (1) and no resignation tendered by any such officer shall be accepted without previous approval of the State Government. (6) Unless the State Government otherwise directs the power of appointing Municipal Officers and servants other than those mentioned in or specified under sub-section (4) shall vest in the President-in-council. (6) Unless the State Government otherwise directs the power of appointing Municipal Officers and servants other than those mentioned in or specified under sub-section (4) shall vest in the President-in-council. (7) The State Government may transfer any officer or servant of a Council mentioned in subsections (1) and (2) and in receipt of total emoluments exceeding one hundred rupees to any other Council. (8) The State Government may prescribe the classes or grades of officers and servants who shall have the right to appeal from any decision of the Chief Municipal Officer, the President-in-council, the prescribed authority or any other authority empowered in his behalf, inflicting any departmental punishment other than censure. (9) The authority hearing an appeal made under sub-section (8) shall have power to set aside or reduce the punishment against which the appeal is preferred. Simultaneously, Rule 2(e), 2(f) and 51 of the Rules of 1968 are also relevant which are also reproduced as under :- "2(e) "Municipal Employee" means a person appointed to or borne on the cadre of the Municipal staff other than a member of the State Municipal Service (Executive): "2(f) "Municipal service" means the service or group of posts in connection with the affairs of the Municipality other than the State Municipal Service (Executive): 51. Disciplinary authorities.- Subject to the provisions of the Act and these rules the Municipal Council shall have the powers to impose any of the penalties specified in rule 49 on any municipal employee holding post specified in sub-section (4) of section 94 of 260 Sujjet Kumar Nigam vs. State of M.P. & Ors. 2012 (IV) the Act and in the case of other municipal employees the Standing committee shall have the power to impose any of the said penalties on him. As the respondents have taken the stand that the petitioner is governed by the Rules of 1973, however, relevant provisions of the Rules of 1973 are reproduced as under: "2(b) "Appointing Authority" means State Government in respect to Select Grades, Class I, Class II and Class III Chief Municipal Officers; 2(f) "Member of the Service" means a member of the State Municipal Service (Executive). 2(i) "Service" means the Municipal Service for the State constituted under sub-section (1) of Section 86 of the Act. 2(i) "Service" means the Municipal Service for the State constituted under sub-section (1) of Section 86 of the Act. On bare reading of the aforesaid, it is apparent that under sub-section (4) of Section 94 of the Municipalities Act, it is clear that appointment of Revenue Officer, Accounts Officer, Sanitary Inspector, Sub Engineer, Revenue Inspector and Accountant shall be made subject to confirmation by the State Government. As per sub-section (6) of Section 94, it is clear that unless the State Government otherwise directs the power of appointment of Municipal employees and servants other than those mentioned in or specified under sub-section (4) shall vest in the President-in-council. However, it is clear that appointment of the aforesaid post is under sub-section (4) of Section 94 and it may be made by the Municipal Council subject to confirmation by the State Government. The appointment on the said posts cannot be made by President-in-council. 5. On perusal of the return and the submission so made by the counsel for the respondents, petitioner is not a person appointed in the cadre of State Municipal service constituted under sub-section (1) of Section 86 of the Act. As per rule 2(b) of the Rules of 1973, the appointing authority is the State Government to Class I, Class II and Class III of the Chief Municipal Officer. As per the Schedule of Rules of 1973, only the post of Municipal Officer has been specified. Simultaneously, the petitioner has made out a case that he was appointed under sub-section (4) of Section 94 of the Act and he is the Municipal Employee in the cadre of Municipal Service. In such circumstances, it is to be held that the Rules of 1973 are not applicable to the petitioner who is holding the post of Sub Engineer. It is to be further held that he shall be governed by the Rules of 1968 being municipal employee. 6. In that view of the matter, the appointment of the petitioner is made by the Municipality subject to confirmation by the State Government. Under the Rules of 1968, penalties have been specified in Rule 49 and Rule 51 deals with the disciplinary authority. 6. In that view of the matter, the appointment of the petitioner is made by the Municipality subject to confirmation by the State Government. Under the Rules of 1968, penalties have been specified in Rule 49 and Rule 51 deals with the disciplinary authority. On reading, it is clear that the Municipal Council have the power to impose any of the penalties so specified under Rule 49 on any of the employees holding the post as specified under subsection (4) of Section 94 of the Act of 1961 and in the case of other municipal employees the standing committee shall have the power to impose any of the said penalties on them. Thus, on conjoint reading of the aforesaid provisions, it is apparent that President-in-council can impose the penalty on other municipal employees except of those who were appointed under sub-section (4) of Section 94 of the Act. The petitioner has been appointed under subsection (4) of Section 94 of the Act, however, President-in-council is having no power to impose the penalty on him. In the opinion of this Court, the resolution Annexure-P/6 dated 18/5/2010 imposing penalty passed by President-in-council and the order communicating the same Annexure-P/5 passed by the Chief Municipal Officer, Municipal Council, Damon are without jurisdiction and per se illegal, therefore, quashed. 7. In view of forgoing, this petition succeeds and is hereby allowed. The resolution Annexure-P/6 dated 18/5/2010 imposing penalty passed by President-in-council and the order communicating the same Annexure-P/5 passed by the Chief Municipal Officer, Damoh are hereby quashed. As the order was passed without having jurisdiction by the President-in-council, however, petitioner is also entitled for the cost of this petition which is quantified Rs.2,500/-.