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2014 DIGILAW 893 (CAL)

L. Karuppan v. Andaman and Nicobar Administration

2014-09-12

SUBRATA TALUKDAR

body2014
JUDGMENT : Subrata Talukdar, J. 1. The case canvassed by the Writ Petitioner in this petition is as follows:- (a) That the Petitioner is working as Senior Sanitary Supervisor with the Andaman and Nicobar Administration for the past 18 years. The petitioner is directly engaged under the Port Blair Municipal Council and was promoted to the present post in the year 1995. The name of the petitioner figures at serial no. 2 in the Seniority List of Senior Sanitary Supervisors. (b) That earlier there was no notified recruitment rule for the post of Sanitary Inspector under the Respondent Municipal Council. The Rule governing the said appointment to the Post under the Respondent Municipal Council was dated 3rd May 2005. (c) On 7th March, 2011 the Respondent Municipal Council caused to be published a draft recruitment rule being the Recruitment Rules, 2010 inviting suggestions and objections. On 13th September, 2011 vide the impugned notification No. 217 the respondent no. 2, being the Secretary, Port Blair Municipal Council on behalf of the Andaman and Nicobar Administration was pleased to frame Rules in exercise of powers conferred under sub-section (A) of Section 203 of the Andaman and Nicobar Island (Municipal) Regulation 1994 (for short the 1994 Regulation). By the said 1994 Regulation rules were made regulating the method of appointment to Group B and Group C posts under the Respondent Municipal Council being the posts of Sanitary Officer, Senior Sanitary Inspector, Sanitary Inspector, Senior Sanitary Supervisor, Sanitary Supervisor and Sanitary Jawabder. (d) It is the case of the petitioner that against the draft notification dated 7th March, 2011 he had submitted objections addressed to the respondents but, till date, such objections have not been considered. (e) The said impugned notification no. 217 dated 13th September, 2011, inter-alia, provides for essential qualifications for direct recruits. Vide Serial No. 11 of the said impugned Notification No. 217 the method of recruitment for Sanitary Inspectors has been provided which is 50 per cent by promotion failing which by direct/recruitment and 50 per cent by direct recruitment, Vide Serial No. 12 of the said impugned Notification it is provided that promotion to the post of Sanitary Inspector will , be considered from the lower post of Senior Sanitary Supervisor in the pay band of Rs. 5200-20,200 with Grade Pay of Rs. 5200-20,200 with Grade Pay of Rs. 1900 with 8 years regular service and possessing the educational qualification prescribed for direct recruits under paragraph 8. (f) It is also the case of the petitioner that in spite of possessing requisite qualifications prescribed under Serial No. 8(2), the requirement for promotion to the post of Sanitary Inspector as stipulated at Serial No. 12 of the impugned Notification No. 217, the promotional avenue of the petitioner by which his chance to be considered has been completely curtailed. (g) It is the further case of the petitioner that the impugned Notification No. 217 which has been made in terms of Section 2(A) of Section 203 of the 1994 Regulation empowers the Respondent Authorities to frame such recruitment rules in terms of the provisions of the 1994 Regulation. The 1994 Regulation being a Presidential Law promulgated under Article 240 of the Constitution of India prescribes the mode and manner in which the Rules of recruitment are required to be brought into force. According to the petitioner, Regulation 204 of the 1994 Regulation mandates that every Rule made under the Regulation shall be laid, as soon as possible after it is made, before each House of Parliament while it is in session for a total period of 30 days which may comprise in one session or two or more successive sessions and, if before the expiry of the session immediately following the sessions or the successive sessions both Houses agree for making any modification in the Rule or by Law, only upon such agreement the Rule can take effect in the form agreed to by Parliament or, shall be of no effect as the case may be. (h) Shri K.M.B. Jayapal, Ld. Counsel appearing for the petitioner asserts that the impugned recruitment Rule No. 217 has been notified on the 13th of September, 2011 without being placed before each House of Parliament as required upon a conjoint reading of the 1994 Regulation and Article 240 of the Constitution of India. Shri Jayapal points out that in the present case there has been a non-compliance of Regulation 204 of the 1994 Regulation. Shri Jayapal points out that in the present case there has been a non-compliance of Regulation 204 of the 1994 Regulation. He contends that for the 1994 Regulation, being in the nature of a special statute prescribing a particular manner in which an act is to be done or, in other words, a particular manner in which a notification must take effect, cannot be promulgated or finally published without following due process. He submits that the exercise of power in the present case is a colourable one contrary to the provisions of Article 309 of the Constitution of India. (i) The petitioner, therefore, is aggrieved by the fact that although he is continuing in the post of Senior Sanitary Supervisor since the year 1995 and having worked for nearly 18 years in the said post, his chances of being promoted to the higher post of Sanitary Inspector was not considered at all and now, after the promulgation of the impugned Rule No. 217, his promotional avenue has been completely curtailed. 2. Shri Jayapal thus prays for issuance of a writ of Mandamus setting aside and/or the quashing the impugned Notification No. 217 dated 13th September 2011 and, in particular serial No. 8 of the said impugned Notification. He also prays for a writ of Mandamus upon the Respondent Authorities to consider the candidature of the petitioner for promotion to the post of Sanitary Inspector without applying the provisions of serial No. 8 of the impugned Notification No. 217 and other interim reliefs. 3. For contra Shri Arul Prasanth, learned Counsel appearing for the Respondent Municipal Council has argued that the framing of the Recruitment Rules is in two stages. At the first stage the Respondent Municipal Council will consider the draft notification and then place the same before the Andaman and Nicobar Administration. 4. Shri Prasanth submits that the Administration shall have the liberty to add, delete or modify the draft notification. Shri Prasanth brings to the notice of this Court that the draft notification challenged by the petitioner | and appearing at Page 24 of WP No. 138 of 2014 is of the year 2010 and by the Resolution No. 219 dated 29th October, 2011 the same was amended. 5. Shri Prasanth brings to the notice of this Court that the draft notification challenged by the petitioner | and appearing at Page 24 of WP No. 138 of 2014 is of the year 2010 and by the Resolution No. 219 dated 29th October, 2011 the same was amended. 5. He furnishes before this Court a copy of the Resolution No. 219 dated 29th October 2011 amending the draft notification and submits that due process was followed in framing the Recruitment Rules. 6. Shri Prasanth also brings to the notice of this Court the judgment of an Hon'ble Single Bench of this court in connected Writ Petitions being WP No. 13673 (W) of 2013, WP No. 241 of 2013, WP No. 332 of 2013 and WP No. 339 of 2013. 7. Delivering its Judgment on 20th December 2013 the Hon'ble Single Bench of this Court was pleased to notice as follows:- (i) The batch of the above noted writ petitions were filed by petitioners engaged in varied commercial activities. For the purpose of advertisement the petitioners obtained permission from the Port Blair Municipal Council to erect hoardings at different places within the area under the jurisdiction of the Respondent Council on payment of fees. The petitioners alleged that the Respondent Council has unilaterally increased the fees for the hoardings which is illegal and arbitrary. (ii) On the legal score the petitioners had contended before the Hon'ble Single Bench that the Amendment Bye-Laws of 2012 were required to be placed before both Houses of Parliament in terms of Regulation 204 of the 1994 Regulation. In view of the admitted position that the amendment Bye-Laws of 2012 being not placed before the Houses of Parliament, the same should be declared to be void and therefore ineffective. (iii) It was argued on behalf of the Respondent Council that the increase in licence fees by way of the Amendment Bye-Laws of 2012 was lawful and the Court cannot sit in review over such decision taken by the Respondent Council regarding fiscal matters which fall exclusively within the executive domain. (iii) It was argued on behalf of the Respondent Council that the increase in licence fees by way of the Amendment Bye-Laws of 2012 was lawful and the Court cannot sit in review over such decision taken by the Respondent Council regarding fiscal matters which fall exclusively within the executive domain. (iv) It was the specific case of the Respondent Council before the Hon'ble Single Bench that non-laying of the amendment bye-Laws of 2012 before both Houses of Parliament does not render the same void and ineffective because the provision in Regulation 204 of the 1994 Regulation must be construed to be directory in the absence of any penal consequence being prescribed for non-laying of the Amendment Bye-Laws of 2012 before both Houses of Parliament. (v) In support of his contention as noted in para (iv) above the learned Counsel for the Respondent Council relied upon a decision of the Hon'ble Apex Court in AIR 1979 SC 1149 in the matter of Atlas Cycle Industries Ltd. & Others v. State of Haryana. The Hon'ble Single Bench was pleased to notice the above mentioned decision of the Hon'ble Apex Court on the point that when the further consideration of a resolution by a body does not provide for any penal consequence, the same is to be considered as directory. Therefore, the non-laying of the Amendment Bye-Laws 2012 before Parliament cannot affect its validity and it will be deemed to be effective from the date it is notified. In other words, non-laying of the amendment Bye-Laws of 2012 is not fatal to its enforcement. The decision of the Hon'ble Single Bench dated 20th December, 2013 was carried in appeal by way of MA No. 006 of 2014. However, the Hon'ble Division Bench by its judgment and order dated 10th June, 2014 was pleased not to entertain the appeal and confirmed the order of the Hon'ble Single Bench dated 20th December 2013. (vi) The Hon'ble Single Bench was also pleased to observe that the decision in Atlas Cycles (supra) followed a Constitution Bench decision of the Hon'ble Apex Court reported in AIR 1966 SC 385 in the matter of Jan Md. Nur Md. Bagban v. State of Gujarat and Another as also another Constitution Bench decision reported in 2011 9 SCC 1 in the matter of K.T Plantation (Private Ltd.) v. State of Karnataka. Nur Md. Bagban v. State of Gujarat and Another as also another Constitution Bench decision reported in 2011 9 SCC 1 in the matter of K.T Plantation (Private Ltd.) v. State of Karnataka. The Hon'ble Single Bench was, therefore, pleased to overrule the challenge to the Amendment Bye-Laws of 2012 on the above score and directed the Respondent Administration however to place the Amendment Bye-Laws of 2012 before Parliament as provided by Regulation 204. 8. Heard the parties. Considered the materials on record. 9. This Court is in respectful agreement with the ratio of the decision of the Hon'ble Single Bench as affirmed by the Hon'ble Division Bench as discussed above. On a parity of reasoning this Court finds that the Gazette Notification dated 13th September, 2011 cannot be struck down merely on the failure of the Administration to place the same before both Houses of Parliament. This Court reiterates the view that the provision under Regulation 204 is directory and non-placement of the Gazette Notification dated 13th December, 2011 before Parliament does not provide for any penal consequences. 10. This Court also notices the fact that prior to issuing the said Notification dated 13th September, 2011, the subject of framing of Recruitment Rules was placed before the Respondent Council. The Executive Instructions appearing in the Recruitment Rules of 2010 and ratified by the Council were finally notified on 13th of September 2011. 11. Therefore, this Court notices with the approval the argument of Shri Prasanth that the Executive Instructions of 2010 were adopted into the duly notified Recruitment Rules. This Court is of the further view that there was no infraction of due process in notifying the Recruitment Rules. 12. In the backdrop of the above discussion WP No. 318 of 2013 is dismissed. 13. There will be, however, no order as to costs. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities. Application is dismissed.