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2013 DIGILAW 561 (ALL)

Ravi Krishna Verma v. State of U. P. and Another

2013-02-18

DEVENDRA KUMAR UPADHYAYA

body2013
Devendra Kumar Upadhyaya, J.— (C.M. Application No. 3686 of 1997) This is an application seeking recall of the final judgment and order dated 17.9.1996, whereby opposite parties were directed to pay the petitioner his salary in the revised pay scale of Rs. 2000-60-2300-EB-75-3200 and other consequential benefits of pay and allowances and arrears from 18.7.1988. Sri Shashi Prakash Singh, learned counsel appearing for Nagar Nigam, Lucknow canvassing his case for recall of the order dated 17.9.1996 has submitted that at the time of hearing of the matter, Nagar Nigam, Lucknow (the then Nagar Mahapalika, Lucknow) could not be heard for the reasons indicated in the affidavit filed in support of application for recall. Sri Shashi Prakash Singh, learned counsel for Nagar Nigam was urged by the Court to address the Court on merit of the matter giving opportunity of hearing at present. Sri Singh has vehemently argued that the resolution dated 14.7.1988 which has been annexed as Annexure No.1 to the writ petition cannot be said to confer any benefit to the petitioner for the reason that though the said resolution created the post of Sports Officer under Section 106 of Municipal Corporation Act, 1959 (earlier Nagar Mahapalika Adhiniyam) but in absence of any prescription by the State Government as to the qualification for the post, the appointment of the petitioner by the same resolution could not have been made. He has also stated that the alleged appointment order dated 15.7.1988 which has been annexed as Annexure No.2 to the writ petition has been issued by the Office Superintendent (Establishment) who is not the appointing authority of the post of Sport Officer and hence, on the basis of such appointment order, no benefit regarding salary and its revision etc. can be said to have accrued in favour of the petitioner. I have heard Sri Vishal Singh, learned counsel for the petitioner and Sri Shashi Prakash Singh, learned counsel appearing for Nagar Nigam, Lucknow and have gone through the provisions contained in Sections 106, 107 and 113 of the U.P. Municipal Corporations Act, 1959. It is not disputed that Section 106 empowers the Municipal Corporation (at the relevant time Nagar Mahapalika) to create several posts as envisaged in the said Section. It is not disputed that Section 106 empowers the Municipal Corporation (at the relevant time Nagar Mahapalika) to create several posts as envisaged in the said Section. Sub-section (i) to (v) of Section 106 name the specific posts whereas Sub-Section (vi) permits and empowers the Municipal Corporation to create any other posts of Officers, Staff and other servants necessary for the efficient discharge of its functions. The resolution dated 14.7.1988 clearly reveals that the same was passed by the Administrator of the then Nagar Mahapalika which is in complete tune with the requirement of Sub-Section (vi) of Section 106 as the post of Sport Officer is being created as per the need and exigency of the work related to the said post. The resolution gives reason for creation of the post and states inter alia that creation of the post of Sport Officer is necessary for efficient discharge of functions of Nagar Mahapalika. Merely because the qualification for the post has not been prescribed by the State Government, it cannot be said that the post itself was not created. Prescription of qualification by the State Government as envisaged in Sub-section (2) of Section 106 of the U.P. Municipal Corporations Act, 1959 has to follow creation of the post. Exercise of prescribing qualification may take sometime and at the time of adhoc appointment of the petitioner on the post in question, merely because, the qualification was not prescribed by the State Government, very creation of the post will not be negatived. Thus, the Court is of the considered view that the submission being made by the learned counsel appearing for Nagar Nigam, Lucknow to the effect that the resolution dated 14.7.1988 is of no avail to the petitioner as process of creation of the post was not complete, is fallacious and hence, is hereby rejected. As regards issuance of appointment order dated 15.7.1988 appointing the petitioner on the post of Sport Officer by the authority who allegedly was not competent to do so suffice would it be to say that the resolution dated 14.7.1988 itself decided to appoint the petitioner on ad hoc basis on the post of Sport Officer. Issuance of appointment letter dated 15.7.1988 is not the decision itself; rather it is a ministerial job and a formal communication of the decision of the appointment made through the resolution dated 14.7.1988. Issuance of appointment letter dated 15.7.1988 is not the decision itself; rather it is a ministerial job and a formal communication of the decision of the appointment made through the resolution dated 14.7.1988. Thus, this contention also does not carry any force, though has been vehemently argued by Sri Shashi Prakash Singh, learned counsel for Nagar Nigam and hence is hereby rejected. In view of discussions made and reasons given above, the application for recall lacks merit and is hereby rejected. Lastly, the Court also notice that the benefits arising out of the revision of pay-scale as claimed by the petitioner has already been given to him by means of order dated 8.9.1999. In this view of the matter, there will be no order as to cost. _____________