- (1.) Arun Kumar Sen, the respondent No.1 in this appeal and two others were initially appointed to officiate temporally as a Municipal Pleader, such Corporation of Calcutta, pending filling up of these posts permanently. On March 10, 1962 he had joined in the said post. Thereafter, the Municipal Authorities had issued advertisements inviting applications for filling up the permanent vacancies in the said posts of Municipal Pleaders. Along with others the respondent No.1 Arun Kumar Sen, had applied. The Standing Finance Committee of the Corporation of Calcutta and its meeting held on 16th September, 1963 resolved that the present respondent No.1, Arun Kumar Sen, and two others whose names had been recommended by the Municipal Service Commission "be permanently appointed to the three posts of Municipal Pleaders, Law Department in the grade of Rs.200-300/- subject to the service and other allied regulations of the Corporation." On November 4, 1963 the respondent No.1 had joined the said post. The Corporation of Calcutta has claimed that Arun Kumar Sen, the respondent No.1, was put on probation according to the Regulation 10 of the Service Regulations of the Corporation of Calcutta. On December 18, 1964 the Chief Law Officer, Corporation of Calcutta had recommended that the period of probation of the respondent No.1 be extended and the Commissioner, Corporation of Calcutta by his letter dated April 2, 1965 had extended his period of probation for further one year. The respondent No.1 and two other Municipal Pleaders had objected to the said extension of their probationary periods. They claimed inter alia that they had been permanently appointed and they were not put on probation. According to them the Order of extension of their probationary periods was illegal. On 5th July, 1965 the Chief Law Officer, Corporation of Calcutta issued a notice to the respondent No.1 stating that he had been directed by the Commissioner, Corporation of Calcutta to communicate to him the full order passed by him. "I do not consider the work of Shri A. K. Sen, Municipal Magistrate's Court lawyer, to be satisfactory. He is, therefore, not confirmed and is discharged. He may be paid one month's pay in lieu of notice." The respondent No.1 had made representations against his discharge from service. Thereafter, he moved this Court under Article 226 of the Constitution of India and obtained Civil Rule No.840(W) of 1965. D. Basu, J. made the said Rule absolute. The learned Single Judge quashed the said order and commanded and restrained the respondents therein from giving any effect to the said impugned order. The learned Judge, however, made it clear that the respondent would be at liberty to make fresh orders in accordance with law. The Corporation of Calcutta being aggrieved by the aforesaid judgment of D. Basu, J, has preferred this appeal under Clause 15 of the Letters Patent.
(2.) The principal point in this appeal is whether or not the Commissioner, Corporation of Calcutta as the Appointing Authority was entitled to discharge the respondent No.1 from service in terms of Regulation 11 of the Service Regulations of the Corporation of Calcutta. When the respondent No.1 was appointed the provision at S. 80 of the Calcutta Municipal Act before the same amended by S. 27 of the Calcutta Municipal (2nd Amendment) Act, 1964 was that appointments to the Corporation of Calcutta establishment shall be made by the Corporation of Calcutta, if the maximum salary of the office was not below rs.250/-. The Commissioner was the authority empowered to make appointments in all other cases. Therefore, when the petitioner was appointed, the Corporation of Calcutta was the authority empowered to make his appointment. Admittedly, the Standing Finance Committee had appointed the respondent No.1 as a Municipal Pleaer, D. Basu, J. has found that the respondent No.1 was appointed on probation and rejected his contention that the Standing Finance Committee had straightway permanently appointed him as a Municipal Pleader and that therefore, the question of confirmation or discharge could not and did not arise. On December 5, 1964 the Calcutta Municipal (2nd Amendment) Act, 1964 came into force. Section 27 of the said amending Act substituted the words "exceeds Rs.500/-" for the words "is not below Rs.250/-" in clause (a) of S. 80 of the Calcutta Municipal Act, 1951. The said amendment was not given retrospective effect. After the said amendment of S. 80 of the Calcutta Municipal Act, 1951, the Commissioner, Corporation of Calcutta became the authority to make appointments in the Corporation establishment except in respect of offices whose maximum salary exceeded Rs.500/- per month. Therefore, under the amended S. 80 the Commissioner became competent to make appointments to posts of Municipal Pleaders. The Commissioner, Corporation of Calcutta as already stated purported to act as the Appointing Authority of the respondent No.1 and by the impugned order discharged him from service. D. Basu, J, has inter alia held that the respondent No.1 by reason of his appointment as a probationer had acquired a vested right. The Standing Finance Committee who had appointed the respondent No.1 was alone competent to discharge or to confirm him. The expression "Appointing Authority" in Regulation 11 of the Service Regulations, Corporation of Calcutta, according to D. Basu, J, was an abbreviation for the words "authority who had appointed the respondent No.1 and not the authority competent to make appointment to the post."
(3.) Mr. Pradip Kumar Ghosh, learned Advocate for the appellant, Corporation of Calcutta, has submitted that the expression "Appointing Authority" in Service Regulation 11 means the authority for the time being competent to make appointment to the post in question and not the authority who actually appointed a corporation employee on probation. According to Mr. Ghosh, the expression "Appointing Authority" has not the same connection in the different sections of the Calcutta Municipal Act, 1951. Section 81(4) used the expression. "Appointing Authority" with reference to particular post or posts and in this section the said term means the authority empowered to make appointments. Mr. Ghosh further submitted that whenever the Legislature has intended that the expression "Appointing Authority" would mean the authority who actually made the appointment, the same has been expressly stated in the particular section. In this connection, Mr. Ghosh referred to the provisions of S. 87 of the Calcutta Municipal Act which specifies who would be the competent authorities for imposing punishments upon the municipal officers and servant. Section 87 clearly provides that 'the authority by whom such officer or servant is appointed' can impose punishments by way of fine, reduction or rank, suspension, removal or dismissal from service, withholding of increments. But in the instant case, the discharge of the respondent No.1 during his probation did not involve any punishment. Therefore, in interpreting the provisions of S. 81(4) or Regulatino 11 the concept of the word "Appointing Authority" should be disassociated from the meaning of the said expression for the purposes of punishment. Mr. Ghosh has further submitted that the Commissioner is not an authority subordinate to the Corporation of Calcutta. The Commissioner, a statutory authority exercising by his own right those powers which have been conferred by the Act upon him. Therefore, by the subsequent legislative changes the Commissioner having become the authority competent to make appointments to the post held by the respondent No.1, he was entitled to discharge him during his probationary period. Another submission of Mr. Ghosh was that the Commissioner under S. 36 of the Calcutta Municipal Act exercises supervision and control over all municipal officers and servants who had been made subordinate to him. According to Mr. Ghosh, the expression "control" would include powers either to confirm or to discharge a corporation employee appointed on probation.;