1990 Supreme(MP) 718

IN THE HIGH COURT OF MADHYA PRADESH
P.C. PATHAK, D.M. DHARMADHIKARI, JJ.
Nirmal Kumar Mishra - Petitioner
Vs.
State of M.P. - Respondents
M.P. No. 1157 of 1983 (J)
Decided On : 21-02-1990

Headnote:(1) Municipal Employees (Recruitment and Conditions of Service) Rules, 1968 (M.P.) – R. 4, 7 and 12 – recruitment by promotion not in accordance with these rules – may be annulled by State Government.

       (2) Municipalities Act, 1961 (M.P.) – S. 94 – appointment on the post of accountant – resolution of standing committee not sufficient – only upper division clerk can be promoted.

       (3) Natural Justice – appointment illegal – may be annulled without affording opportunity of being heard.

        Short Note

       1. The petition calls in question order dated 6 – 4 – 1983 (Ann. R – 1), passed by the State Government and order dated 7 – 4 – 1983 (Ann. G), passed by the Municipal Commissioner, Satna, cancelling the petitioner's promotion to the post of Accountant and reverting him back to the substantive post of Lower Division Clerk held by him.

       Held : In exercise of powers conferred by section 355 (1) read with section 95 of the Act, the State Government made the Madhya Pradesh Municipal Employees (Recruitment and Conditions of Service) Rules, 1968. Rule 4 provides the methods of recruitment namely; (i) by direct recruitment (ii) by promotion (iii) by transfer or deputation. Rule 7 provides academic qualifications for appointment to the various categories of posts by direct recruitment or otherwise as is specified in Schedule III appended to the M.P. Municipal Services (Scale of Pay and Allowance) Rules, 1967. The post of Accountant is shown at serial No. 6, column No. 4 against the said post prescribes qualifications namely; certificate of having passed Higher Secondary School Examination with special training in account. It further provides that for promotion, the candidates will be selected from amongst Upper Division Clerk. The post of Upper Division Clerk at serial No. 7 prescribes qualification for direct recruitment to be a graduate of a recognised University and for departmental promotees the same educational qualification as for Lower Division Clerk and 3 years experience in a ministerial cadre. The qualification for appointment of AA and A Class Municipalities certificate of having passed Higher Secondary School Examination with knowledge to type writing and for B & C Class Municipalities certificates of having passed Middle School Examination. Rule 12 prescribes the procedure for recruitment by promotion. In selecting candidates for recruitment by promotion shall be made on consideration of merits seniority being taken into account where the merits are equal. The District Selection Committee selects candidates and recommends the names of the candidates found suitable for promotion to the Standing Committee. The final selection will be made by Standing Committee.

       2. The brief narration of the relevant provisions of the Act and the Rules framed thereunder, show that the final selection of the candidates rests with the Standing Committee and the appointment of officers mentioned in sub – section (4) vests in Municipal Council as provided in sub – sections (1) and (2) of section 94. The section further envisages prior approval of the appointment. whereafter the Municipal Council issues the appointment order. In other words, the resolution of the Standing Committee is not sufficient to make the appointment to the post.

       3. Learned counsel for the petitioner argued that the State Government has no power to annual the promotion. The argument has no merit. As seen above, the appointment to the post of Accountant by promotion can only be made from among the suitable candidates holding the posts of Upper Division Clerk. The Selection Committee committed a grave illegality in relying on a part of the qualification prescribed in Schedule III column 6. It completely overlooked that the field of selection was only from the Upper Division Clerk. Merely because the petitioner had passed Higher Secondary School and also completed the training in accounts, did not make him eligible for consideration and selection. Thus, the selection of the petitioner for promotion is illegal.

       4. Section 94 (4) provides that any appointment to the post of Accountant could only be made with the previous approval of the State Government. In the present case, the appointment letter (Ann. D) was issued to the petitioner in anticipation of the approval of the Director of Local Government of Madhya Pradesh. It was not brought to our notice whether the powers of the State Government were delegated to the Director or any one else. Even if there is any delegation, the State Government is not deprived of the powers conferred on it by section 94 (4) of the Act. Since the petitioner was selected from – the post of Lower Division Clerk, it was clear violation of the rules. The State Government was competent to take notice of the illegality and annul the impugned promotion so also the approval accorded by the Director, Local Bodies.

       5. It was next argued that the petitioner was a confirmed employee and before the impugned order prejudicial to him could be passed, he was entitled to an opportunity on the principles of natural justice. There is no merit in this argument. Rules of natural justice cannot he invoked by a person who was not even eligible for consideration since he did not hold the post of Upper Division Clerk. The petitioner was merely LDC. In the hierarchy of the administrative set up the promotion from the post of Lower Division Clerk could only be made to the post of Upper Division Clerk and only after becoming a UDC, he could be entitled to consideration and selection for promotion to the post of Accountant. In our opinion, principles of natural justice cannot be invoked in the matters of approval by the State Government. Such an appointment was held to be invalid in Bala Prasad Naik v. Additional Commissioner, Jabalpur Division and others (1972 JLJ 390). It will also usefully be referred to Krishan Murari Lal Sehgal v. State of Punjab (AIR 1977 SC 1233). While examining the requirement of section 115 (7) of the States Re – organization Act, 1956, the Court interpreted similar phrase "previous approval" and held that it does not contemplate subsequent ratification. Learned counsel for the petitioner relied on Municipal Committee. Dongargarh v. C.L. Verma, Secretary, M.C. Dongargarh (1962 M.P.L.J. 1138). This decision was rendered by single Member of the Board of Revenue. It does not lay down a correct law. Bala Prasad's case (supra) is specific on the question and applies to the orders involved in the present petition as well. We respectfully agree with the view since it is in the line with the view taken by the Supreme Court. 1972 JLJ 390 and AIR 1977 SC 1233 relied on. 1962 MPLJ 1138 overruled. Petition dismissed.