Summary
Rule 6(2)(iii)-If imposed a duty on State Government to act in a quasi-judicial manner. Rules of natural justice- Applicability of.
The U.P. Nagar Mahapalika Adhiniyam 1959 as well as the U.P. Municipalities Act, 1916 empowered local bodies in the State to appoint their employees subject to certain regulatory control by the State Government. In 1964 s. 112A was added to the 1959 Adhiniyam empowering the State Government to make rules for the creation of one or more services to be known as Centralised Palika Services common to all the municipal corporations and municipal boards and prescribe the method for recruitment and conditions of service of persons appointed to any such service. Section 69B which was added to the U.P. Municipalities Act, 1916 was in identical terms as s. 112A. Section 577(e) of the Adhiniyam provided for provisional absorption of officers and servants of the erstwhile municipalities till they were finally absorbed in any centralised services created under the Act. By s. 577(ee) the Administrators of Boards etc., were authorised to make temporary appointments of officers and servants till substantive appointments were made and such officers and servants were treated as on deputation with the municipal corporations.In exercise of the powers conferred under s. 112A the State Government made the U.P. Palika (Centralised) Service Rules, 1966 which came into force on July 9, 1966. Since r.6 of the Rules was found to be contrary to the provisions of s. 112A and s. 69B, the U.P. Local Self-Government (Amendment) Ordinance, 1966 (which later became an Act) was promulgated to validate the 1966 Rules. Section 19 of the Act provided that the amendments made to the Rules might be given retrospective effect, limited to a period of one year from the commencement of the Ordinance. Thereafter the U.P.Palika (Centralised) Services (Amendment) Rules, 1966 were passed by which r. 6 was repealed and re-enacted with retrospective effect from July 9, 1966. Clause (ii) of r.6(2) empowered the State Government to pass a final order of absorption in respect of particular officers and servants of the erstwhile municipal boards if they were found suitable.Clause (iii) provided that such orders had to be made on or before March 31, 1967.827 Since the work of final absorption could not be completed by March 31, 1967, r. 6(2) (iii) was amended shifting the date to June 30, 1967. But this amendment having been made to come into effect from April 1, 1967 the legal fiction created by cl. (iv) of r. 6 that if no orders of final absorption were passed till March 31, 1967 the officer or servant concerned was to be deemed to have been finally absorbed, came into play. Clause (iii) was, therefore, again amended shifting the date of passing the order from March 31, 1967 to August 31, 1967. The rule was made with retrospective effect from July 9, 1966.For the purpose of final absorption of all officers and servants who were found suitable in the two categories viz., those appointed under s. 577(e) and s. 577(ee) of the Adhiniyam, the State Government laid down a procedure. It constituted Divisional Committees for making necessary recommendations to the State Government. On January 11, 1967 the State Government issued the first Circular stating that all officers and servants whose services were proposed to be determined on the ground of unsuitability might be given an opportunity of personal interview by the Divisional Committees. The Government divided the officers and servants into two categories, those getting salary above Rs. 500/_and those getting salary below Rs. 500/- and provided that cases of each category were to be dealt with at different levels. By this circular the Government re-constituted the composition of the divisional Committees so far as the five municipal corporations which were created under the 1959 Adhiniyam were concerned and directed that these Divisional Committees should make selections for all Centralised Services except those whose starting salary was Rs. 500/- and above. The selection for this category was to be made by the State Selection Committee.With a view to secure a reasonable uniformity in the standards to be applied by the Divisional Committees in making the selection, the third Circular dated February 23, 1967 provided that the Committees should interview the official concerned to judge his suitability for absorption in the Centralised Services and that if it was proposed to declare an official to be unsuitable for absorption on the basis of adverse entries, the Divisional Committees should afford an opportunity to the official concerned to appear before it and clear up his position. It was further provided that only those adverse remarks which were found to have been duly communicated to the official concerned might be considered against him.Thus the procedure laid down was this: The recommendations of the Divisional Committees in respect of persons drawing salary less than Rs. 500/-would be scrutinised by the State Government in the Local Self- Government Department and the necessary orders passed thereon while in respect of the second category officers drawing a salary above Rs. 500/- p.m. the Secretary to the Government Local Self-Government Department would obtain the orders of the Minister concerned in passing the final orders.The appellant RA was a permanent Assistant Engineer in the Development Board, Kanpur. Before the coming into force of the Adhiniyam he was appointed as officiating Executive Engineer and since then he continued to function in that capacity on a purely temporary arrangement under s. 577(ee).The appellant AH was a Sanitary Inspector in the Municipal Board, Kanpur and 828continued to hold that post. He was later promoted temporarily as Assistant Engineer and he stood provisionally absorbed under s. 577(e).Writ Petitions filed by the appellants and others challenging the vires of the Rules were dismissed by the High Court.On appeal to this Court it was contended that the appellants must be deemed to have been absorbed on March 31, 1967 by virtue of the fiction contained in Cl. (iv) of r.6(2), as originally enacted, because the amendment made to the Rule shifting the date of final absorption first from March 31, 1967 to June 30, 1967 and subsequently to August 31, 1967 were legally ineffective and (2) that the impugned orders were vitiated on account of the failure of the State Government to afford to the appellants an opportunity of being heard.^HELD: 1. (a) The validity of the two amendments made by the State Government in r. 6(2) cannot be questioned.Although a rule cannot be made with retrospective effect, the Legislature by enacting s. 19 of the U.P. Local Self Government (Amendment) Act, 1966 expressly conferred powers on the State Government to make retrospective rules. [837D].(b) It is well established that retrospective operation is not to be given to a statute so as to impain that existing right or obligation other than as regards matter of procedure. If the enactment is expressed in a language which is fairly capable of either interpretation, it ought to be construed as prospective only. But where it is expressly stated that an enactment shall be retrospective, courts will give it such operation. It is competent for the Legislature by retrospective legislation to make the provision contained in an carrier enactment ineffective. [838 F-G]Quinn v. Prairiedate [1958] 25 WWR 241; referred to.(c) In considering the effect of repeal of an enactment followed by reenactment in the light of s. 6 of the General Clauses Act, 1897 the line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy them. Any incompatibility in the provision has to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not conclusive. [839 B-C]In the instant case by the introduction of the new fictional date of absorption as August 31, 1967 there was a clear intention to destroy the earlier fictional date of March 31, 1967. It would clearly be incompatible, on consideration of subsequent amendments for both the provisions i.e. the original clause (iii) fixing March 31, 1967 and the new clause (iii) fixing August 31, 1967 to operate simultaneously. The effect of introduction of the new fictional date was to annihilate the earlier fictional date. The appellants, therefore, did not stand automatically absorbed by the failure of the State Government to pass the necessary orders by March 31, 1967, as its powers stood extended by the subsequent amendment to August 31, 1967.Before that date expired the State Government, in both cases, passed the necessary orders terminating the services of the appellants as they were not found fit for absorption.[839 D-F].829 2. (a) The entrustment to the State Government of the work of determining the suitability or otherwise of officers and servants of the erstwhile Municipal Boards and other local authorities for absorption in the newly created Centralised Services under s. 112A, imposed a corresponding duty or obligation on the Government to hear the officers and servants concerned. All such officers were, therefore, entitled to be heard in the matter of final absorption irrespective of their salary. [841 A; 843 F].(b) By virtue of the repealing provision contained in s. 581 of the Adhiniyam, 1959 the various Municipal Boards and other local authorities constituted under the relevant Acts ceased to exist as a result of which the existing posts held by the officers and servants in these bodies stood abolished. Consequent upon the abolition of the posts, all the officers and servants of the erstwhile local bodies lost their right to hold their posts. The Adhiniyam, however, provided by s. 577(e) and (ee) for provisional absorption or temporary appointment of these officers and servants till substantive appointments were made and these officers and servants were treated as on deputation with the Municipal Corporations. Therefore, in the very nature of things the officers and servants provisionally absorbed under these sections could not be automatically absorbed in the newly created Centralised Services. There had to be screening of all of them for determining their suitability for final absorption in the Centralised Services. [840 A; B-F](c) The very nature of the functions entrusted to the State Government under r. 6(2) (iii) of the Rules implies a duty to act in a quasi-judicial manner. Unless the State Government's orders conformed to the rules of natural justice, the orders were liable to be struck down as invalid. [840 G 841 B].(d) It is not correct to say that it is incumbent only on the Divisional Committees to give an opportunity of personal hearing and that the State Government was absolved of the duty to hear in respect of officers drawing Rs. 500/- and above. The first Circular dated January 11, 1967 was all pervasive and the Government's policy was made quite clear in it. The second Circular dated January 31, 1967 was equally subject to the Government policy. All the officers and servants of the erstwhile Municipal Boards and other local authorities were, therefore, entitled to be heard in the matter of final absorption irrespective of their salary.[843 E, A, D].In the case of AH on an overall view of the records it cannot be said that the Divisional Committee was wrong in recommending to the Government to terminate his services.The Government was within its right in passing the impugned order of termination in regard to him. [844 C]In regard to RA before passing the impugned order of termination of services, the Minister for Local Self- Government did not give him an opportunity of a hearing. The procedure laid down in the Centralised Services Rules was not followed. The State Government could decide on the question of his absorption only after he was found fit but that has not been done. The order passed by the State Government, therefore, suffers from a serious legal infirmity. [844 D-F].830See the full content of this document
Extract
Mohd Rashid Ahmad Etc. VS. State Of U.P. & Anr.
PETITIONER: MOHD RASHID AHMAD ETC.Vs.RESPONDENT: STATE OF U.P. & ANR.DATE OF JUDGMENT15/12/1978BENCH: SEN, A.P. (J)BENCH: SEN, A.P. (J)SARKARIA, RANJIT SINGHTULZAPURKAR, V.D.CITATION: 1979 AIR 592 1979 SCR (2) 826 1979 SCC (1) 596CITATOR INFO : F 1979 SC1237 (20,24)D 1988 SC1737 (8,7)ACT: U.P. Nagar Mahapalika Adhiniyam, 1959-Act abolished all municipal boards and other local authorities-Empowered State Government to constitute Centralised Palika Services prescribing method of recruitment and conditions of service of persons appointed to services-Rule 6-Scope of-Rule 6(2)(iv) provided that if no orders of final absorption passed before a certain date the officer or servant concerned deemed to have been finally absorbed-Rule retrospectively amended from time to time on two occasions extending the date of final absorption to rectify mistakes in dates-State Legislature, if had power to confer power on State Government to amend rule retrospectively.JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1724/69 and 1732 of 1971.Appeals by Special Leave from the Judgment and Order dated 12-5-69 of the Allahabad High Court in Special Appeal Nos. 492 and 437 of 1968.Naunit Lal and Faqir Chand for the Appellant in CA Nos.1724/69.G. N. Dikshit, O. P. Rana for Respondent No.1 in C.A.1724/69J. P. Goyal, S. M. Jain and S. K. Jain for Respondent No.2 in CA Nos. 1724/69 Miss Meera Bali for the Appellant in C.A. 1732/71G. N. Dikshit and O.P. Rana for the Respondents in CA 1732/71 The Judgment of the Court was delivered bySEN J. These two appeals by special leave, directed against the judgment of the Allahabad High Court dated May 12, 1969 raise common questions and therefore, are disposed of by this common judgment.By separate notifications issued under section 3 of the U.P. Mahapalika Adhiniyam, 1959, the State Government constituted Municipal Corporations in five cities in the State, namely Kanpur, Agra, Varanasi, Allahabad and Lucknow w.e.f. Feb...
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