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High Court Of Madhya Pradesh
P.V. Dixit, C.J. and R.J. Bhave, J.
RAS BIHARI PANDEY
Versus
MUNICIPAL CORPORATION
Decided On : Jan 21,1966
On 22-3-1963 the Divisional Superintendent of Education, Jabalpur Division, issued a memorandum with regard to the qualifications of person for appointment as lecturers etc. This Memorandum was issued two days after the impugned appointment was made. The appointment made was challenged on the ground that it was not approved by the Divisional Superintendent of Education as required by the Memorandum.
Held: The appointment did not become invalid. The purpose of the memorandum was only to impress on the managers of the non-Government Higher Secondary Schools the desirability of appointing only qualified persons following the regulations contained in Chapter XI of the Board of Secondary Education Regulations, 1959. [Para 4]
(2) Municipal Corporation Act 1956 - (M.P.) - S. 58 - scope of the section - appointment of lecturer by Standing Committee of Corporation without consulting Public Service Commission - is not invalid.
The running and maintenance of Higher Secondary Schools constitute neither a mandatory nor a permissive function of a Corporation in view of the provisions of section 66 of the Act. However assuming (concluded opinion not expressed) that the matter of appointment of a lecturer in a Higher Secondary School run by the Corporation is one falling under section 58, and appointment made without consulting the Public Service Commission does not become invalid. AIR 1957 SC 912 & AIR 1962 SC 1130, referred to. [Para 5 & 6]
(3) Municipal Corporation Act, 1956 (M.P.) - S. 35 - councilor having interest taking part in the meeting - the decision not invalidated - taking part is objectionable.
Where a councilor took part in a meeting considering the appointment of his son as a lecturer, the unanimous decision appointing the lecturer is not invalid, as there is nothing in the Act which invalidates such proceedings. As the resolution was unanimous, there is no room for thinking that the vote of the Councilor would have made the decision other wise. [Para 7]
But the conduct of the Councilor was not only contrary to section 35 of the Act, but also offended all canons of propriety. [Para 9]
(4) Constitution of India - Art. 16 - Municipal Corporation Act 1956 (M.P.) - Ss. 35 and 58 - Article applies to employment under Corporation - principle of equality of opportunity applies to matter of promotion.
Article 16 (1) of the Constitution of India applies to any matter relating to employment or appointment to any office under a Corporation. It is also settled that equality of opportunity for all citizens in matters relating to employment or appointment to any office under the "State" is not confined only to initial appointments, but includes also the matter of promotion. But what is guaranteed under Article 16 of the Constitution is that in matter relating to employment or appointment, the State should apply the same standard to all persons similarly situated. AIR 1962 SC 36 & AIR 1962 SC 1139, referred to. [Para 10]
( 1. ) BY this application under Articles 226 and 227 of the Constitution, the petitioner questions the legality of the appointment by respondent 4, the standing committee of the Municipal Corporation, Jabalpur, of respondent 3, Ramakrishna Upadhyay, as lecturer In Economics in L. N. Yadav Higher Secondary School, Jabalpur, alleges that he Is usurping the office of lectureship, and contends that he, that is the petitioner, himself should have been appointed to the post. The applicant prays that a writ in the nature of quo warranto be issued against respondent 3 to show cause as to by what autherity he is functioning and acting as lecturer In Economics In the aforesaid school, that the resolutions passed by respondent 4, the standing committee, with regard to the appointment of respondent 3 be quashed by writs of certiorari, and respondent 3 be restrained from functioning and acting as lecturer, and further that a direction be issued to the Municipal Corporation, Jabalpur, and its standing committee to appoint him to the post.
( 2. ) THE material facts are that the L. N. Yadav Higher Secondary School, Jabalpur, is an institution run and managed by the Municipal Corporation, Jabalpur. The applicant, Ras Bihari Pandey, was at the material time, that is, on 20 March 1963, holding the poet of a teacher in the pay-scale of Rs. 60? 120 and was undergoing training in B. Ed. course. At that time, respondent 3, Ramakrishna, Upadhyay was a teacher in "modern (subjects" in Sanskrit Vidyapeeth, also an institution run and managed by the Corporation. He was in the pay-scale of Rs. 100?200. Early in 1963, the post of lecturer in Economics in the L. N. Yadav Higher Secondary School fell vacant. On 20 March 1963, the sanding committee of the Corporation passed a resolution promoting Ramakrishna Upadhyay to the post on the basis of "seniority," and further resolved to obtain the consent of the State Public Service Commission to the promotion. It appears that after the passing of this resolution the Corporation took no step for obtaining the consent of the Public Service Commission. On 1 October 1963, the standing committee passed another resolution saying that the committee had appointed Ramakrishna Upadhyay to the post of lecturer temporarily for a period of six months and had directed that "sis case" should be referred to the Public Service Commission, and that inasmuch as the matter had not been referred to the Public Service Commission, the period of the appointment of Ramkrlshna Upadhyay was extended till the consent of the Public Service Commission to his appointment was obtained. On behalf of the municipal corporation, It was stated before us that pursuant to the resolutions passed on 20 March 1963 and 1 October 1963 the matter of the appointment of Ramakrishna Upadhyay has been referred to the Public Service Commission and is pending for consideration before the Commission.
( 3. ) SRI Dharmadhikari, learned Counsel appearing for the petitioner, assailed the validity of the appointment of Ramakrishna Upadhyay to the post of lecturer in Economics on four grounds. First, It was said that according to the memorandum issued by the Divisional Superintendent of Education on 22 March 1963 to the managers of all non-Government higher secondary schools of Jabalpur division drawing their attention to the qualifications which persons for appointment as principals, lecturers and teachers should fulfill, Ramakrishna Upadhyay was not qualified to be appointed as lecturer whereas the petitioner was; that the said memorandum also required that the appointments of principals, lecturers and teachers in non-Government higher secondary schools should be approved by the Divisional Superintendent of Education, Jabalpur; and that no such approval of the Divisional Superintendent of Education was obtained to the promotion or appointment of Ramakrishna Upadhyay. Secondly, It was urged that under Section 58 of the Madhya Pradesh Municipal Corporation Act
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