- (1.) THIS petition under Art. 226 of the Constitution prays that the order of the State Government passed on 22 March, 1966 be quashed. The Municipal Board, Sikandrarao, Aligarh is the petitioner. It appointed Narsingh Bhan Singh, respondent 3, as a temporary toll inspector on 28 January, 1949. He was appointed to officiate as the executive officer on 25 June, 1954. On 7 June, 1955, the municipal board appointed him as the executive officer. This appointment was disapproved by the State Government on 12 October, 1955. The municipal board again resolved to appoint him as the executive officer, but this attempt also failed and the State Government rejected the proposal. On 17 February, 1956 the municipal board resolved to revert Narsingh Bhan Singh to the post of toll inspector. On 21 February, 1956 respondent 3 was suspended. On 9 April, 1956 a chargesheet was served upon him and on 25 July, 1956 Narsingh Bhan Singh was dismissed from the post of toll inspector. Respondent 3 filed an appeal to the State Government. On 25 April, 1957 the municipal board by a special resolution passed its budget, abolishing the post of toll inspector with effect from 1 April, 1967. On 25 February, 1958 the State Government set aside the order of dismissal of respondent 3 and directed the municipal board to reinstate him to the post of toll tax superintendent. The municipal board represented that respondent 3 was only a toll tax inspector and therefore he could have been directed to be reinstated to that post and not to the post of toll tax superintendent. On 22 December, 1958 the State Government appropriately modified its previous order and directed that the Narsingh Bhan Singh will be reinstated on the post of the toll tax inspector. In February, 1959, the State Government addressed a letter to respondent 3 saying that "the State Government reinstated you to the post of toll inspector, but since the post has been abolished with effect from 1 April, 1957, you are entitled to your salary from the date of your suspension till 31 March, 1957." It is also alleged that the amount of salary was subsequently paid to respondent 3.
(2.) NARSINGH Bhan Singh filed two writ petition, No. 265 of 1959 challenging the order of the State Government passed on 22 December, 1958 modifying its earlier order and No. 1375 of 1959 praying that the municipal board should at any rate be directed to implement the State Government's last order of 22 December, 1958 reinstating him to the post of toll tax inspector. The writ petitions were decided on 3 August, 1961. Writ petition No. 265 of 1959 was allowed. It was held that the State Government exercised a quasi-judicial power and hence it could not modify or vary its earlier order. The municipal board was directed to implement the first order of the State Government passed on 25 February, 1958. The counsel for respondent 3 then stated that in case the first writ petition is allowed, he would not press the second writ petition. The second Writ Petition No. 1375 of 1959 was hence dismissed without deciding it on the merits. The municipal board filed a special appeal No. 352 of 1961 against the judgment allowing Writ Petition No. 265 of 1959. The special appeal was on 5 February, 1954 allowed. It was held that the power of the State Government was administrative in nature and hence the State Government could vary its earlier order. Consequently Writ Petition No. 265 of 1959 was dismissed. The Bench observed that since the second writ petitions had been dismissed and there was no appeal against that, it would mean that neither of the reliefs claimed in the two writ petitions have been granted. It also observed that Narsingh Bhan Singh was entitled to be reinstated as toll tax inspector under the Government order and that the Bench was confident that the municipal board will give effect to that order. The municipal board took the attitude that it complied with the Government's order dated 22 December, 1958 and reinstated respondent 3 by giving him the arrears of salary till 31 March, 1957 and tendering him three month's salary in lieu of notice. Since the post stood abolished with effect from 1 April, 1957, respondent 3 could not continue in the employment of the municipal board thereafter. It appears that later on, respondent 3 made a representation to the Commissioner which is the prescribed authority, who forwarded the same to the State Government for necessary action. In the counter- affidavit filed on behalf of the State it is stated that the State Government asked the municipal board to send its comments on the representation and the municipal board submitted its comments on 11 November, 1965. After considering the comments the State Government on 22 March, 1966 passed the impugned order. It stated that the legal consequence of the State Government's order passed on 22 December, 1958 would be that Narsingh Bhan Singh should be deemed to have all along continued in the service of the board on the post of the toll inspector. While the appeal was pending, the board should not have abolished the post, but should have waited for the final orders of the State Government. The initial mistake which the board, therefore, committed was that it abolished the post without waiting for the final orders of the State Government. The State Government also observed that since the effect of the orders passed by the State Government is that Narsingh Bhan Singh continued in the board's service on the post of toll inspector, it would be deemed that the post of the toll inspector still exists for him in spite of the resolution of the board abolishing the post. That resolution of the board would have to be treated as a dead letter so far as Narsingh Bhan Singh was concerned. However, since the post of toll inspector was no longer needed by the board, the only thing that appears to be possible now is that after Narsingh Bhan Singh is reinstated on the post of toll inspector, the board should take steps to terminate his permanent services in accordance with the rules and this action should synchronize with the abolition of the post. Narsingh Bhan Singh would, therefore, have to be paid his salary throughout. In Para. 2, the order has stated that in view of the above legal opinion, the municipal board be instructed to act accordingly. In June, 1966 the municipal board made a representation, but the same was rejected by an order dated 13 October, 1966.
(3.) FOR the petitioner it has been urged that the State Government had no power to make this order or to issue these instructions to the municipal board. I have heard learned counsel for the parties and found it difficult to sustain this order with reference to any provision of the Municipalities Act. Learned counsel for the respondent has sought to sustain the order under Ss. 34 and 35 of that Act. Sub-section (1) of S. 34 is clearly inapplicable. Sub-section (1)(b) authorizes the State Government to prohibit the execution of any resolution or order of the board if in its opinion such resolution was or is prejudicial to public interest. The impugned order does not prohibit the execution of any resolution or order of the board, nor does it state that in the opinion of the State Government any prejudice has been caused to the public interest. This provision is not at all attracted. Section 35 authorizes the State Government or in the case of a board of a city and the prescribed authority in relation to a board or a municipal board other than a city to pass an order fixing the period for the performance of a duty for which the board had made a default or for carrying out any order of the State Government. It will be seen that the State Government has power only in respect of the board of a city. It is admitted that the petitioner is a board of a municipality for which the State Government has no jurisdiction. Only the prescribed authority can act in relation to the petitioner board under S. 35. The impugned order passed by the State Government was, therefore, lacking in power. It is true that Narsingh Bhan Singh made a representation to the prescribed authority but the prescribed authority transmitted it to the State Government. The State Government appears to have taken legal opinion in the matter and then passed the impugned order on 22 March, 1966. The State Government communicated its order to the prescribed authority, viz., the Commissioner, Agra, for necessary action. The prescribed authority then transmitted the State Government's order to the municipal board. It is clear that the prescribed authority did not apply its mind at all. It only acted as the transmitting authority between the State Government on the one hand and the municipal board and respondent 3 on the other. It cannot, therefore be said that the impugned order emanates from the prescribed authority.;