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Allahabad High Court · body

2023 DIGILAW 2884 (ALL)

Vimlesh Lal v. State Of U. P.

2023-12-21

J.J.MUNIR

body2023
JUDGMENT : (J.J. Munir, J.) 1. This writ petition under Article 226 of the Constitution is directed against the impugned order dated 24.05.2023 passed by the District Magistrate, Sonbhadra, setting aside the promotion granted to the petitioner by the Chairman, Nagar Palika Parishad, Sonbhadra to the post of a water works supervisor from the position of a pump attendant. 2. In consequence of the impugned order passed by the District Magistrate, the petitioner stands reverted to the post of a pump attendant. The petitioner was appointed a pump attendant vide order dated 29.11.2007 by the Executive Officer, Nagar Palika Parishad, Sonbhadra. He joined service on 04.12.2007. The petitioner was selected for the post of a pump attendant, a Group-D post vide Government Order No. (para no.4) dated 17.10.2007 after facing a duly constituted selection committee for the purpose. According to the petitioner, he is duly qualified for the post of a water works supervisor, a Class-III (Group-C) post. He has earned his Intermediate Certificate from the U.P. Board of High School and Intermediate Education and a Trade Certificate of Fitter from the I.T.I. He has apprenticed at the Thermal Training Institute, UPRVUNL, Obra, District Sonbhadra. The petitioner has been discharging his duties sincerely, honestly and with all competence at his command. Respondent No.5, on the other hand, was appointed a daily-wager on the Class-IV post of a pump attendant with the Nagar Palika Parishad, Sonbhadra on 01.01.1989. He has been regularized in service on 09.12.2014. The fifth respondent has completed his Junior High School in the year 1983 and holds a I.T.I. Trade Certificate. The fifth respondent also claims to have passed the Prathama Examination in 1997 from the Hindi Sahitya Sammelan, Allahabad (now Prayagraj). 3. It is the petitioner’s case that the Director, Local Bodies, U.P. has issued an order dated 6th December, 1980, where the minimum educational qualifications prescribed for a water works supervisor is intermediate. The post of a water works supervisor was vacant since long in the establishment of the respondent, Nagar Palika Parishad. The petitioner, qualified for the post, moved an application seeking consideration of his candidature by way of promotion. The matter was referred for guidance by the Executive Officer, Nagar Palika Parishad, Sonbhadra to the Deputy Director, Local Fund Account Department, U.P., Vindhyachal Division, Mirzapur. This reference for guidance appears to have been made vide memo dated 04.09.2020. The petitioner, qualified for the post, moved an application seeking consideration of his candidature by way of promotion. The matter was referred for guidance by the Executive Officer, Nagar Palika Parishad, Sonbhadra to the Deputy Director, Local Fund Account Department, U.P., Vindhyachal Division, Mirzapur. This reference for guidance appears to have been made vide memo dated 04.09.2020. In response, the Deputy Director, Local Fund Account Department, Mirzapur, responded vide his memo of 30th September, 2020, wherein he suggested that the following proceedings can be taken: “(1) If in the past, promotion to the post of a water work supervisor on a regular basis has been done, on the foot of whichever educational and technical qualifications, proceedings can be taken in the same manner; (2) If the post of a pump attendant constitutes a feeding cadre for promotion to the post of a water work supervisor, promotion can be made; (3) Since it is a matter of promotion, the question of reservation would not be attracted.” 4. The Nagar Palika Parishad, Sonbhadra, accordingly, went about the exercise of considering the case for promotion and vide an office note, that is annexed at Page Nos.49 and 50 of the paper-book, a list of six employees, who were eligible for promotion, was drawn up. Four out of these were occupants of the posts of beldar and two were pump attendants. Out of the six, all the other five, except the petitioner, were non-matriculates. Respondent No.5 alone held an I.T.I. Trade Certificate like the petitioner, but then his educational qualifications were only a Junior High School. The minimum educational qualification for the post of a water works supervisor, being an Intermediate Certificate, the petitioner’s case was proposed for promotion by the Executive Officer to the Chairman of the Nagar Palika Parishad. The Chairman of the Nagar Palika Parishad passed an order dated 22nd October, 2020 promoting the petitioner to the post of a water works supervisor. 5. Challenging the aforesaid promotion, respondent No.5, Kamlesh Singh, instituted a writ petition before this Court being Writ-A No.4791 of 2023, praying for the following material relief: "Issue a writ, order or direction in the nature of mandamus commanding the respondent no.2 to consider the claim of petitioner for promotion on Class III post (Jalkal Paryavekshak) within stipulated time." 6. 5. Challenging the aforesaid promotion, respondent No.5, Kamlesh Singh, instituted a writ petition before this Court being Writ-A No.4791 of 2023, praying for the following material relief: "Issue a writ, order or direction in the nature of mandamus commanding the respondent no.2 to consider the claim of petitioner for promotion on Class III post (Jalkal Paryavekshak) within stipulated time." 6. This Court disposed of the writ petition not on merits, but permitting the petitioner there to make a fresh detailed representation to the District Magistrate raising all his grievances and directing the District Magistrate to decide that representation by a speaking order within a period of two months. The precise terms of the order dated 21.03.2023 passed by this Court in Writ-A No.4791 of 2023 read: “Learned counsel for petitioner submits that grievance of petitioner would sufficiently be met in case representation of petitioner for the said purposes is considered and decided in a time bound manner. Shri Brijesh Kumar, learned counsel for respondents and learned standing counsel have no objection to the same. In view thereof, petitioner is permitted to make a fresh detailed representation to respondent no.2-District Magistrate, District Sonbhadra raising all his grievance, annexing therewith a copy of this writ petition along with annexures and all the documents in support of his claim within a period of two weeks from today along with a certified copy of this order. In case such a representation is moved by petitioner, respondent no.2 shall consider and decide the same in accordance with law by a reasoned and speaking order within a period of two months from the date a certified copy of this order along with representation is placed before him. It is made clear that this court has not applied itself on the merits of the case and all questions are left open to be considered and decided by the competent authority in accordance with law.” 7. Acting on the said representation, the District Magistrate, Sonbhadra constituted a Three Member Inquiry Committee, comprising the Additional District Magistrate (Finance and Revenue), Sonbhadra, the Senior Treasury, Sonbhadra and the Executive Officer, Nagar Palika Parishad, Sonbhadra, asking them to submit a clear report in the matter concerning the validity of the petitioner’s promotion, which they should do after personally hearing the petitioner. The Committee reported that there was nothing to show clearly that a post of water works supervisor was sanctioned for the Nagar Palika Establishment and there was no final publication of the seniority list of Class-IV employees eligible for promotion, rendering the petitioner’s promotion legally untenable. 8. The District Magistrate held on the basis of the said report that the petitioner’s promotion made by the Chairman vide order dated 22nd October, 2020 was illegal and set aside the same vide his order dated 24th May, 2023. 9. It is this order that the petitioner has impugned in the present writ petition. 10. In this case, when the matter came up for admission on 22.11.2023, the following order was passed: “The District Magistrate, Sonbhadra shall show cause by filing his own affidavit under what authority of law by which is meant the authority enjoyed under the Statute, he could cancel an order passed by the Chairman of the Nagar Palika Parishad, Sonbhadra promoting the petitioner. In putting in his answer, the District Magistrate will bear in mind that even a judicial order cannot confer jurisdiction upon an authority, which he does not posses under the law. The District Magistrate will also bear in mind that the order passed by the Chairman and set aside by him cannot lead to an approval of his action merely because the Chairman's order is for some reason, on facts or evidence, vitiated. If the District Magistrate has no jurisdiction, all inquiries undertaken by him, whether personally or through a Committee of Officers serving in the Collectorate, would be non est. The aforesaid consideration shall be borne in mind. The personal affidavit, as above indicated, shall be filed on or before 08.12.2023. Mr. H.P. Mishra, Advocate holding brief of Mr. J.N. Tripathi, Advocate accepts notice on behalf of respondent no. 5. He may seek instructions by the next date fixed. Mr. Dinesh Kumar Singh, learned Additional Chief Standing Counsel accepts notice on behalf of respondent nos. 1, 2 and 3. He will also seek instruction in the matter. Lay as fresh again on 08.12.2023 at 12:00 noon. Till then, no recovery shall be made from the petitioner pursuant to the impugned order dated 24.05.2023 passed by the District Magistrate, Sonbhadra. Let a copy of this order be communicated to the District Magistrate, Sonbhadra by the Registrar (Compliance) within 24 hours.” 11. Heard Mr. Lay as fresh again on 08.12.2023 at 12:00 noon. Till then, no recovery shall be made from the petitioner pursuant to the impugned order dated 24.05.2023 passed by the District Magistrate, Sonbhadra. Let a copy of this order be communicated to the District Magistrate, Sonbhadra by the Registrar (Compliance) within 24 hours.” 11. Heard Mr. Shailesh Pandey, learned Counsel for the petitioner, Ms. Monika Arya, learned Counsel appearing on behalf of respondent Nos. 1, 2 and 3, and Mr. H.P. Singh, learned Counsel appearing on behalf of respondent No. 5. 12. It is submitted by the learned Counsel for the petitioner that the District Magistrate has no jurisdiction or authority under the Uttar Pradesh Municipalities Act, 1916 (for short, ‘the Act of 1916’) to interfere and set aside an order of promotion relating to a Class-IV employee of the Nagar Palika Parishad, promoting him to a Class-III post. 13. Now, in compliance with the order requiring the District Magistrate to file a personal affidavit showing cause on the aforesaid plea of the petitioner, the District Magistrate has filed his personal affidavit dated 07.12.2023. In the said affidavit, he has taken three pleas. The first is that the promotion is bad because the process of publication of the final seniority list of Class-IV employees in the Nagar Palika Parishad has not been adopted and the promotion, for the said reason, is contrary to rules. The second plea is that the District Magistrate has passed the order impugned in compliance with the orders of this Court dated 21.03.2023 passed in Writ-A No.4791 of 2023, and the third is a plea of confession and avoidance, where the District Magistrate has said in Paragraph No.8 of the affidavit that he has no power under the statute to interfere in the affairs of the Nagar Palika Parishad. There is dovetailed to this plea, a plea of avoidance saying that he has acted in the matter in deference to the command of this Court to decide the fifth respondent’s representation. 14. The moot question involved in this case is: If the District Magistrate is empowered under the Act of 1916 to interfere with a promotion order relating to a Class-IV employee passed by the Nagar Palika Parishad Establishment, be it the Chairman, the Executive Officer or the Board? 15. 14. The moot question involved in this case is: If the District Magistrate is empowered under the Act of 1916 to interfere with a promotion order relating to a Class-IV employee passed by the Nagar Palika Parishad Establishment, be it the Chairman, the Executive Officer or the Board? 15. Upon hearing learned Counsel for the parties and a careful consideration of the matter, what this Court finds is that the District Magistrate has very little say in matters of the Nagar Palika Parishad or a Nagar Panchayat, functioning under the Act of 1916. Section 34 is the only source of power that the District Magistrate has to interfere with the decisions of a Nagar Palika Parishad. Section 34 reads: “34. Power of the State Government or the Prescribed Authority or the District Magistrate to prohibit execution or further execution of resolution or order of [Municipality]. - (1) [The Prescribed Authority may], by order in writing, prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a [Municipality] or a committee of a [Municipality] or a Joint Committee or any officer or servant of a [Municipality] or of a Joint Committee [if in its opinion] such resolution or order is of a nature to cause or tend to cause obstruction, annoyance or injury to the public or to any class or body of persons lawfully employed [* * *] and may prohibit the doing or continuance by any person of any act in pursuance for or under cover of such resolution or order. (1A) The District Magistrate may, within the limits of his district, by order in writing, prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a] [Municipality] or a committee of a [Municipality] or a Joint Committee or any officer or servant of a [Municipality] or of a Joint Committee if in his opinion such resolution or order is of a nature to cause or tend to cause danger to human life, health or safety, or a riot or affray, and may prohibit the doing or continuance by any person of any act, in pursuance of or under cover of such resolution or order. (1B) the State Government may, on its own motion or on report or complaint received by order prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a] [Municipality] or a committee of a [Municipality] or a Joint Committee or any officer or servant of a [Municipality] or of a Joint Committee, if in its opinion such resolution or order is prejudicial to the public interest, [or has been passed or made in abuse of powers or in flagrant breach of any provision of any law for the time being in force,] and may prohibit the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order. (2) Where an order is made under sub-section (1) or (1-A)] [* * *], a copy thereof with a statement of the reasons for making it, shall forthwith be forwarded by the Prescribed Authority 1 added bu U.P. Act no 7 of 1949 2 added bu U.P. Act no 7 of 1949 or the District Magistrate through the Prescribed Authority, as the case may be, to the State Government which may thereupon, if it thinks fit, rescind or modify the order. (3) [* * *] (4) Where the execution or further execution of a resolution or order is prohibited by an order made under sub-section (1), (1-A) or (1-B) and continuing in force, it shall be the duty of the [Municipality], if so required by the authority making the order under the said sub-sections to take any action which it would have been entitled to take, if the resolution or order had never been made or passed, and which is necessary for preventing any person from doing or continuing to do anything under cover of the resolution or order of which the further execution is prohibited.” 16. The District Magistrate’s power is traceable to sub-Section (1-A) of Section 34 alone, which authorizes him to prohibit the execution of a resolution passed by a Municipality or a Committee or an Officer etc., if he is of opinion that the resolution or the order is of a nature that may cause or tend to cause danger to human life, health or safety, or a riot or affray. That is the limited authority of the District Magistrate to interfere in the affairs of a Nagar Palika or a Municipality, as it was formerly called. There is no other power vested in the District Magistrate to interfere with any decision made by the Nagar Palika Board, its Chairman or the Executive Officer or a Committee or an Officer thereof. Rather, this Court is inclined to think that the autonomy and independence of a Nagar Palika is far more strenghtened and requires to be more zealously protected in view of inclusion of Part IX-A in the Constitution by the Constitution (Seventy-fourth Amendment) Act, 1992. This amendment elevates local bodies to a constitutional status and attempts to effect decentralization of democratic power. It provides a constitutional bulwark to strengthen local self-government, more answerable to its eloctorate than a supervising agent of the State Government. Part IX-A of the Constitution and all its provisions would require Section 34 of the Act of 1916 to be understood very differently from the way it was in the day of its enactment. The powers of the District Magistrate must, therefore, be held limited to Section 34 and not expanded in any manner. 17. The question involved here fell for consideration of a Division Bench of this Court sitting at Lucknow in President, Nagar Palika Parishad, Sultanpur, Babita Jaiswal v. State of U.P., AIR OnLine 2019 All 2407. In President, Nagar Palika Parishad, Sultanpur, Babita Jaiswal (supra), it was held by their Lordships of the Division Bench: “24. From a bare reading of said Section 34, it is clear that the District Magistrate has power to interfere with only such resolutions or orders of the Nagar Palika Parishad if the same are likely to cause or tend to cause 'obstruction, annoyance or injury to the public......' or 'danger to human life, health or safety or a riot or affray'. Awarding a contract in favour of a person cannot be matter, which may cause obstruction, annoyance or injury to the public or danger to human life, health or safety etc. Even directions to make payment with regard to contract given by the Nagar Palika Parishad or execution of resolutions passed by the Nagar Palika Parishad, which include cleaning of drains and repairing of roads etc. Even directions to make payment with regard to contract given by the Nagar Palika Parishad or execution of resolutions passed by the Nagar Palika Parishad, which include cleaning of drains and repairing of roads etc. also would not fall in the category of cases enumerated under Section 34 of the Act under which the District Magistrate can invoke the powers under Section 34 of the Act. 25. The Constitution of India as well as the Uttar Pradesh Municipalities Act, 1916 envisage that the Nagar Palika Parishads are to work independently and carry on the functions and duties, which it is obliged in law to perform. Interference by the District Magistrate or the State Government would only be permissible if the circumstances enumerated under Section 34 of the Act prevail. 26. The bye-laws dated 24.09.1994, as annexed with the writ petition as Annexure no.10, providing for registration and execution of works was published under Section 301 of the Act, 1916 inviting objections which is the previous publication envisaged under Section 300 of the Act, 1916. In the counter affidavit, it has been stated that the bye-laws in question was never published in the official gazette as required under Section 301 of the Act, 1916. This fact is not correct. The previous publication as envisaged under the aforesaid provision has been complied with and publication was made in the official Gazette inviting objections/suggestions from the general public. The State has failed proved that thereafter no final publication was made in the Official Gazette under Section 301 (2) of the Act, 1916. 27. In our considered opinion, the power, which has been exercised by the District Magistrate in the present case, would not fall within the ambit of provisions of Section 34 of the Act. The members of the Nagar Palika Parishad are duly elected and interference by the executive would only be to the extent permissible in law. Since we are of the opinion that the orders passed by the District Magistrate are outside the purview of the provisions of Section 34 of the Act, 1916 and the learned Standing Counsel has not placed any other provision of law under which the District Magistrate could have passed the said orders, which clearly interfere with the functioning of the Nagar Palika Parishad, the said orders would be liable to be quashed.” 18. The same view was expressed earlier by a learned Single Judge of this Court in Subodh Kumar Gupta and others v. State of U.P. through Principal Secretary and others, 2016 SCC OnLine All 1358. The learned Judge was considering the issue in the context of orders passed by the District Magistrate, Farrukhabad terminating the service of the petitioners there, who were Class-III and IV employees of the Nagar Palika, appointed after the Chairman’s approval. The appointments were terminated by the District Magistrate purporting to exercise powers under Section 34 of the Act of 1916. It was in the context of these facts, that my esteemed Brother Mahesh Chandra Tripathi held in Subodh Kumar Gupta (supra): “16. From a bare reading of Section 34 of the Act, it is clear that the District Magistrate has power to interfere with only such resolutions or orders of the Nagar Palika Parishad if the same are likely to cause or tend to cause ‘obstruction, annoyance or injury to the public……’ or ‘danger to human life, health or safety or a riot or affray’. Awarding a contract in favour of a person cannot be matter, which may cause obstruction, annoyance or injury to the public or danger to human life, health or safety etc. Even directions to make payment with regard to contract given by the Nagar Palika Parishad or execution of resolutions passed by the Nagar Palika Parishad, which include cleaning of drains and repairing of roads etc. also would not fall in the category of cases enumerated under Section 34 of the Act under which the District Magistrate can invoke the powers under Section 34 of the Act. The Constitution of India as well as the Act envisage that the Nagar Palika Parishads are to work independently and carry on the functions and duties, which it is obliged in law to perform. Interference by the District Magistrate or the State Government would only be permissible, if the circumstances enumerated under Section 34 of the Act prevail.” 19. In Subodh Kumar Gupta, it has further been remarked by His Lordship : “17. Section 74 of the Act provides that the President may appoint, remove or otherwise punish a servant on posts in the non-centralised services carrying scale of payment equal to or higher than the lowest scale of pay admissible to the clerical staff. In Subodh Kumar Gupta, it has further been remarked by His Lordship : “17. Section 74 of the Act provides that the President may appoint, remove or otherwise punish a servant on posts in the non-centralised services carrying scale of payment equal to or higher than the lowest scale of pay admissible to the clerical staff. The provision contained in the Act clearly mandates that in absence of Executive Officer, the Chairman will issue the appointment officers. In the present matter, the petitioners were appointed by the Chairman of the Municipality, who is the appointing authority under Section 74 of the Act.” 20. Cognizant of this position of the law, the District Magistrate here, as said earlier, conceded that he has no jurisdiction. But, as also said earlier, the District Magistrate has resorted to a plea of confession and avoidance. He has acknowledged the lack of his jurisdiction, but sought to avoid the folly of his action by saying that he acted under a command of this Court. 21. A reading of the order passed by this Court in Writ-A No.4791 of 2023 does not show that the District Magistrate was in any manner commanded to act in violation of the law. Rather, no opinion was expressed by this Court. He was just asked to decide the representation made to him by respondent No.5, questioning the petitioner’s appointment. The first issue that the District Magistrate should have examined was if he at all had jurisdiction to decide. If he had done that, he would have acted in accordance with law. The acknowledgment before this Court that he has no jurisdiction has made matters more complicated and given rise to avoidable litigation. 22. Apparently, the order passed by the District Magistrate is absolutely without jurisdiction and he could not have set aside the promotion order made in the petitioner’s favour by the Chairman of the Nagar Palika Parishad in the exercise of his power to appoint, promote etc. employees of the Nagar Palika Parishad. 23. This Court is not inclined to go into the validity of the petitioner’s promotion, as that is in no way under challenge here. It would be open to the fifth respondent to seek his remedies as advised. 24. In the result, this petition succeeds and is allowed. The impugned order dated 24.05.2023 passed by the District Magistrate, Sonbhadra is hereby quashed. It would be open to the fifth respondent to seek his remedies as advised. 24. In the result, this petition succeeds and is allowed. The impugned order dated 24.05.2023 passed by the District Magistrate, Sonbhadra is hereby quashed. There shall be no order as to costs.