Back
1993 Supreme(MP) 508
1993 JLJ 687
Gulab C. Gupta and R.P. Awasthy, JJ.
R.P. Dubey v. State of M.P. and others
M.P. No. 882 of 1992; Decided on 24.8.1993.
Rohit Arya fur petitioner; N.C Jain and S.L. Saxena for respondents.
Headnote:(1) Municipal Corporation Ad, 1956 (M.P.) -- S. 54 – provision under -- is valid -- powers to appoint Commissioner of the Corporation -- are not unchannelised or Libratory -- provisions of Arts. 14 and 16 are /lot violated.
In order to consider whether the Act provides unchannclised and arbitrary discretion in the Government, the Court will look nut only the particular section, but the entire Act, its objects and the policy behind it and then decide whether the conferment of power was arbitrary. The functions to be performed by the Commissioner are dearly stated in various provisions of the Act. Those functions, it is not disputed, are intended to provide a truly local self-government and work the same in accordance with democratic norms. The Commissioner being the principal executive officer is required to carry out those functions and, therefore, a person to be appointed as a Commissioner must be capable of performing his duty of office. This, in the opinion of this Court, provides sufficient guideline. The proviso to section 54 clearly indicates that even a person holding a lien on any post under the Government may be appointed as a Commissioner indicating that a person with necessary administrative skill and not a novice or a beginner, is required to appointed. The fact that this power has been conferred on the State Government is the sure guarantee that the appointment will be of a person, who would be capable of performing his duties of his office. There is, therefore, sufficient guideline available in the matter and, therefore, this Court does not find any substance in the submission that the provision is violative of Articles 14 & 16 of the Constitution. The submission is rejected. AIR 1954 SC 465, AIR 1966 SC 554, AIR 1952 SC 75, AIR 1980 SC 350, 1974 JLJ 16, AIR 1989 SC 2255 and AIR 1993 SC 59 relied on. [Paras 4 & 5
(2) Constitution of India -- Arts. 14 and 16 -- M.P. Municipal Corporation Act, 1956 -- S. 54 -- provision under S. 54 of the Act -- not violative. [Para 5
(3) Municipal Corporation Act, 1956 (M.P.) -- S. 54 (1) -- appointment of Commissioner -- person capable of performing duties of the post -- can be so appointed -- person having lien on some Government post appointed as Commissioner -- he cannot said to be holding two posts. [Para 6
(4) Municipal Corporation Act, 1956 (M.P.) -- S. 423 (1) (c) -- standing committee dissolved and Administrator appointed -- all powers of committee vest ill Administrator. [Para 7
(5) Civil Services (Classification, Control and Appeal) Rules, 1966 (M.P.) -- R. 9 (1) -- appointing authority -- committee which was appointing authority dissolved and Administrator appointed -- Administrator became appointing authority for all purposes. [Para 7
(6) Civil Servants -- suspension -- order of -- Courts are reluctant to interfere if there is no breach of statutory provision or no case of malafide is made out. AIR 1993 SC 1152 and AIR 1990 SC 115 followed. [Para 8
(7) Evidence Act, 1872 -- S. 114 -- inference of malafide action -- cannot be drawn on the basis of insinuation and vague suggestions. AIR 1993 SC 1236 followed. [Para 9
Gulab C. Gupta, J. -- 1. "Mountain of a mole hill", is perhaps the best description of the petitioner's grievance, as canvassed in this writ petition, filed under Article-226 of the Constitution. He has been put under suspension pending departmental enquiry by order dated 23.11.1991 (Document No. 16) and in order to challenge legal validity thereof, he challenges vires of section 54 (1) of M.P. Municipal Corporation Act, 1956 (hereinafter referred to as the Act) and the appointment of respondent No.3 as the Commissioner, Municipal Corporation, Jabalpur, and claims a writ a/certiorari and quo-warranto for the purpose.
2. The petitioner is admittedly employed as an Engineer in the Municipal Corporation at Jabalpur. The said Municipal Corporation is governed by the provisions of the Ad and the authority thereof is now vested in the respondent administrator appointed by the State Government for the purpose. The respondent State Government has also appointed the respondent No.3 as Commissioner vide order dated 30th September, 1991 (Annexure 3-A). A perusal of this order indicates that the respondent No.3 was at that time working as Commissioner, Municipal Corporation, Dewas, which is also governed by the provisions of the Act. It appears that there were charges against the petitioner relating to performance of his duties and it was considered necessary to hold a departmental enquiry into them. Pending departmental enquiry, it was decided to put him under suspension. The order (Document No. 16) indicates that it is signed by the respondent No. 3, but it mentions that the petitioner was being put under suspension "vkns"k", in accordance with the order. The order, however, does not mention as to who was the authority, ordering the same, but a copy of this order is endorsed to the respondent administrator for information. Thereafter, on 7.1.92 a charge-sheet has been issued, leveling 5 charges, amounting to dereliction of duty, not maintaining proper control and supervision of subordinate officials causing financial loss to the Corporation and entering into compromises in an illegal manner. Before the enquiry could proceed further, the petitioner filed the present writ petition in this Court on 6.3.1992, challenging legality and validity of not only his suspension, but also the appointment of respondent No. 3 and constitutional validity of section 54 (1) of the Act.
3. The submissions of the petitioner arc: firstly, section 54 (1) of the Act is ultra vires Articles 14 & 16 of the Constitution, inasmuch as, it confers unguided discretion on the State Government to appoint a Commissioner and thereby violates the Constitutional mandate. It is specifically submitted that the said provision docs not specify the person or class of persons, who may be appointed as Commissioner and, therefore, there is complete absence of intelligible differentio, making the provision arbitrary and violative of Article-14. It is also submitted that power given to the State Govt. is very wide, uncontrolled and admits abuse or colourable exercise resulting in discrimination; secondly, it is submitted that the respondent No.3 is a Member of State Municipal Service (Executive) and holds lien on that post. His appointment as Commissioner, therefore, amounts to his holding two substantive posts at the same time, which is not only arbitrary, violating Article-14, but also against F.R. 12-B. It is further submitted that in the past, history of appointment of Commissioner, clearly establishes that persons of the rank of Dy. Collectors were usually appointed, but the respondent No. 3 does not belong to that rank and, therefore, his appointment is illegal deserving quashing by issuing a writ of quo-warranto. As regards suspension and issuance of charge-sheet, it is submitted that they are contrary to Rule-9 of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966, inasmuch as, they haw not been issued by the disciplinary authority. It is further submitted
