Ram Parkash Sharma vs State of Punjab and another

S.S. Sandhawalia, C.J.—Whether the principles of natural justice are inflexibly attracted even in the case of a Municipal employee voluntarily opting for obsorption in the newly created State level Municipal Services u/s 38 of the Punjab Municipal Act, 1911 despite the binding precedent of the Full Bench in C.W.P. No. 8497 of 1976 (Pal Singh v. State of Punjab C.W.P. 8947 of 1976) decided on April 5, 1977 holding to the contrary in the spinal question which has necessitated this reference in this set of six connected writ petitions. In essence, the issue is whether the ratio in Pal Singh''s case (supra) still holds the field after the later judgments in Mohd. Rashid Ahmad Vs. State of U.P. and Another, and Mazharul Islam Hashmi Vs. State of U.P. and Another, .

The relevant factual matrix may be briefly picked from C.W.P. No. 1263 of 1981 (Ram Parkash Sharma v. State of Punjab). The petitioner therein joined service in the Municipal Committee of Taran Taran, District Amritsar as an Octroi Moharrir in 1944 and was later promoted and confirmed in the post of Octroi Inspector. In the year 1975, the State Government constituted the Punjab Municipal Service of some categories including posts of the Inspectors of Octroi u/s 38(1) of the Punjab Municipal Act, 1911 (hereinafter called ''the Act'') vide notification dated December 17, 1975. The State Government also constituted a Screening Committee under sub-section (6) of Section 38 of the Act for considering the qualifications and the service records of the existing municipal employees for their absorption against corresponding posts in the State Level Municipal Service. On the petitioner''s own showing, he himself gave an option in 1975 to become the member of the Punjab Municipal Service. His case was duly considered by the Screening Committee, on March 6, 1981. In view of his unsatisfactory service record, he was found unfit for absorption. Accordingly, vide communication annexure P/1, dated March 26, 1981, he was informed that by virtue of the provisions of sub-section (6-A) of Section 38 of the Act, the post on which he was serving was deemed to have been abolished with effect from March 6, 1981. The writ petitioner assailed the determination of his services and the validity of annexure P/1 on a variety of grounds, including a veiled challenge to the very constitutionality of sub sections (6) and (6-A) of Section 38 of the Act, as also on the ground of the alleged infraction of the principles of natural justice in-so-far as the petitioner had not been afforded an opportunity of hearing for claiming absorption in the Superior State level Punjab Municipal Service.

In the return filed on behalf of the respondent-Municipal Committee, the broad factual position is not disputed. It is, however, highlighted that the service record of the petitioner was so poor that he was found unfit for absorption in the Punjab Municipal Service despite a close examination of the same and his qualifications by the Screening Committee. It was pointed out that the writ petitioner had himself opted to become a member of the Punjab Municipal Service and in view of this, by virtue of sub-sections (6) and (6-A), his post stood abolished simultaneously with the decision of Screening Committee finding him unfit for absorption. The validity of the relevant sub-section of Section 38 and the rules framed for the purposes of consideration and absorption of municipal employees in the state level service, have been reiterated to be valid. Particular reliance is placed on the second proviso to section 38(6) of the Act giving the right to the municipal employees of not becoming a member of the new service and therefore to continue to be governed by the same terms and conditions of service, as earlier, in case he so decides. As regards the applicability of the rules of natural justice, firm reliance was placed on the Full Bench judgment in Pal Singh''s case (supra), holding in categoric terms that in this context, no principle of natural justice is involved at all.

At the motion stage, itself, a challenge to the ratio of Pat Singh''s case (supra) was sought to be raised on the basis of Mazharul Islam Hashmi''s case (supra) as also on Mohd. Rashid Ahmad etc.''s case (supra). Consequently, the case and the connected writ petitions were directed to be heard by a larger Bench and that is how they are now before us.

Perhaps at the very threshold, it calls far notice that the validity of the relevant parts of sub-section (6) and sub-section (6-A) was also in a way one of the grounds of challenge in this set of writ petitions. However, even the learned counsel for the petitioner was compelled to concede that in view of the Full Bench judgment in Pal Singh''s case (supra) as also the subsequent precedents in Mohd. Rashid Ahmad etc.''s and Mazharul Islam Hashmi''s cases (supra), this challenge is now wholly untenable. It was conceded before us that some of the analogous provisions of the U.P. Nagar Mahapalika Adhiniyam, 1959 and the U.P. Palika (Centralised) Service Rules, 1966 which were admittedly in somewhat more stringent terms, have been held to be valid and constitutional by their Lordships in the aforesaid cases. Therefore, on this aspect, learned counsel did not press his challenge and I must consequently conclude that the provisions of sub-sections (6) and (6-A) of Section 38 of the Act art beyond the pale of challenge with regard to their constitutionality.

In the aforesaid context, Mr. M.R. Agnihotri, learned counsel for the petitioner was fair enough take the stand that the only question that now survives is whether the principles of natural justice are inflexibly attracted u/s 38(6) even in the case of municipal employees who opt for absorption in the admittedly superior Punjab Municipal Services constituted u/s 28(1) of the Act. Herein, what calls for prominent notice is the fact that this issue was specifically raised before the Full Bench in Pal Singh''s case (supra) and it was held unreservedly that no question of natural justice arises in this situation. O. Chinnappa Reddy, J. presiding and speaking for the Bench of five-Judges was somewhat categoric in the following terms :--

...... Nor does any question of giving an opportunity to the petitioner arise. No one can claim that he should be heard before the question of his fitness or unfitness for membership of a Service is determined. There is no principle of natural justice involved at all. The fitness or unfitness of a candidate is considered for membership of the new Service and not for membership of the old Service. A person may complain that a principle of natural justice has been violated if his fitness for membership of the old Service of which he is already a member is determined without any opportunity being given to him. That is not the situation here. The petitioner has himself voluntarily abandoned the membership of the old Service. If the authority constituted to determine his fitness for the membership of the newly constituted Service does not give him an opportunity to be heard, he cannot complain that there has been any violation of any principle of natural justice. We are, therefore, unable to hold that Section 38(6) offends Article 14 of the Constitution. The case will now go before a Division Bench for consideration of other questions raised in the writ petition?.

In view of the aforesaid authoritative enunciation by the larger Bench, the logic of rationality thereof is not open to challenge before us except on the limited ground that the final Court has later expressly or tacitly overruled that view. The learned counsel for the parties were fair enough to subscribe to this exiomatic position. The sole issue that, therefore, survives is whether the aforesaid ratio of Pal Singh''s case (supra) is no longer good law in view of the observations in the subsequent decisions in Mazharul Islam Hashmi and Mohd. Rashid Ahmad etc.''s cases (supra). It is within these narrow confines of the rule of precedent that the matter has now to be considered. Unless we come to the conclusion that the Supreme Court judgments have expressly or by necessary implication overruled the enunciation of law in Pal Singh''s case (supra), we would remain respectfully bound by the observations therein.

Now there is no manner of doubt that in Mohd. Rashid Ahmad etc., and Mazharul Islam Hashmi''s cases (supra), their Lordships took the view that under the relevant provisions of the Uttar Pradesh statutes, the principles of natural justice were attracted. The core question, therefore, is whether the corresponding provisions of sub-sections (6) and (6-A) of Section 38 of the Act are so pari materia therewith so as to make the legal position identical in both the cases and as a necessary consequence attract the ratio of the Supreme Court cases on all fours in the present case as well. It is, therefore, apt and indeed necessary to juxtapose the relevant corresponding provisions against each other:--

Punjab Municipal Act. 1911.

U.P. NagarMahapalikaAdhiniyam, 1959.

(1) Notwithstanding anything contained in this Act, the State Government, may, by notification, constitute in the prescribed manner, all or any of the following Municipal Services, namely:-

112-A. Centralization of Services:- (i) Notwithstanding anything contained in Sections 106 to 110 the State Government may at any time by rules provide for the creation of one or more services of such officers and servants as the State Government may deem fit, common to the Mahapalikas or to the Mahapalikas and prescribe the method of recruitment and conditions of service or persons appointed to any such service.

(i) Punjab Service of Municipal Executive Officers:

(ii) xx xxxx

(iii) xx xx

(iv) xx xxxx

(v) xx xx

(vi) xx xxxx

(2) xx xx

(2) When any such service is created, officers and servants serving on the posts included in the service may, if found suitable be absorbed in the prescribed manner in the service.

(3) xx xxxx

(4) xx xx

(5) xx xxxx

(6) Every person, who immediately before issue of a notification under Sub-section (i), is serving in a committee on a post in relation to which a Municipal Service is constituted, shall, on the issue of such notification become a member of the corresponding Municipal Service, if he is found fit by an authority appointed by the Government in

Continuation of appointments, taxes, budget estimate, assessments, etc.-Save as expressly provided by the provisions of this Chapter or by a notification issued u/s 579-

(a) xx xx

(b) xx xxxx

(c) xx xx

on the said day: (f) the following procedure shall be adopted in appointing the officers and servants referred to in CI (e) to the posts created by the Mahapalika u/s 106-

Provided that his terms and conditions of service insofar as they relate to remuneration, gratuity and provident fund shall not be varied to his disadvantage on his becoming a member of the Municipal Service; Provided further that any such person may, by notice in writing given to the State Government, within a period of thirty days of constitution of the Municipal Service, intimate his intention of not becoming a member of such Service and where such an intimation is given that person will not become a member of the corresponding Municipal Service and will continue to be governed by the same terms and conditions of service as were applicable to him immediately before the constitution of the Municipal Service.

(1) XX XXXX

(2) xx xx

(3) xx xx

(4) If any temporary officer or servant as aforesaid in found not to be suitable for any post created by the Mahapalika or he declines to accept the post to which he is appointed on the ground that its pay or time scale of the pay is less than his present pay or time scale, his service shall be terminated after giving him necessary notice as required under the terms of his service but each such officer or servant whose services have been terminated in this manner shall be entitled to such leave, pension or gratuity as he would have been entitled to take or receive on termination of his service if this Act has not been passed;

xx xx

Rule. 6 of U.P. Palika (Centralization) Service Rules, 1966. (1)- (2) The absorption or determination of the services of officers and servants of the Palika holding, or performing the duties and functions of, the posts referred to in Rule 3 immediately before commencement of these rules shall We governed by the following provisions:--

(6-A) In the case of person who is not found fit under Sub-section (6) for becoming a member of the corresponding Municipal Service, the post on which he is serving shall be deemed to have been abolished on the commencement of the Punjab Municipal (Second Amendment) Act, 1976, if the decision that he is not so fit was taken at any time before such commencement and in the case of others as and when such a decision taken; Provided that the Government may appoint such a person, with his consent, on a post in any other Municipal Service to which he may be found suitable."

(1) Permanent officers and servants of the Palika as well as officers and servants referred to in Clause (e) of Section 577 of the Uttar Pradesh NagarMahapalikaAdhiniyam, 1959, shall, unless they opt otherwise, stand absorbed provisionally subject to such orders as Government may in each case pass.

(ii) Other temporary officers and servants shall, unless they opt otherwise, stand absorbed provisionally

subject to such orders as Government may in each case pass.

(iii) Such Officers and servants as are provisionally absorbed under Clauses (i) and (ii) may by subsequent orders of the State Government to be passed before the 31st day of August, 1967, be finally absorbed, if found suitable.

(iv) If in any such case no orders to the contrary are passed by Government before the date mentioned in Clause (iii) the officer or servant shall be deemed to be finally absorbed.

(v) The services of officers and servants referred to in the preceding clauses who opt against absorption as well as of those who are found to be unsuitable for absorption shall stand determined, and they shall, without prejudice to their claim to any leave, pension, provident fund or gratuity as they would he entitled to take or receive on their retirement or termination of service, as the case may be, if these rules had not been made, be paid the following compensation.

(a) xx xx

(b) xx xx

Apart from the aforesaid statutory provisions in the U.P. case the Government had, itself issued three distinct circulars dated January 11, 1967, January 31, 1967 and February 23, 1967, on the import of which the case primarily turned in Mohd. Rashid Ahmad etc.''s case (supra). The first circular embodied the Government''s policy in these terms:--

The Government desire that all officers and servants whose services are proposed to be determined on grounds of unsuitability may be given an opportunity of personal interview by the Committee.

By the second circular, the Government divided the officers and servant who were to be considered for absorption into two categories and those drawing a salary less than Rs. 500/- were to be interviewed by the Divisional Committee while in the case of those drawing Rs. 500/- and above, selection was to be made by the State Selection Committee. Thereafter in the third circular, it was again directed as under:--

......the committee should interview the official concerned to judge his suitability or otherwise for absorption in the centralised services.

.........When it is proposed to declare an official to be unsuitable for absorption on the basis of adverse entries, the Divisional Committee should afford an opportunity to the official concerned to appear before it and clear up his position.

Now it was on the applicability and interpretation of these instructions that the result turned in favour of one of the appellants Mohd. Rashid Ahmad and against the other appellant Ashfaq Hussain. The stand sought to be taken up on behalf of the respondent State of U.P. therein was that whilst an opportunity of personal hearing was required under the circulars before the Divisional Committee, no such duty was cast on the State Government. It was this stand of the State Government which was rejected by the Court and it was held that the State Government was not absolved of the duty to hear the officers and servants of the erstwhile Municipal Boards and other Local authorities drawing Rs. 500/- and above. The clear cut finding given was that the circulars and the consequent right of personal hearing granted by them was applicable to all municipal employees irrespective of their salary. On this legal finding it was held that Ashfaq Hussain appellant had been granted a personal hearing by the Divisional Committee in accordance with the circulars and his appeal was dismissed. However, as it was the admitted position that Mohd. Rashid Ahmad appellant had not been given any opportunity of personal hearing as spelt out by the circulars, the termination of his services, therefore, suffered from a serious legal infirmity. Added to this infirmity, it was further found that the procedure laid down in the U.P. Palika Centralised Service Rules, 1966 had rot been followed in that appellants'' case and also the method of recruitment provided by rule 20 thereof had not been subscribed to. For these reasons Mohd. Rashid Ahmad appellant''s appeal was allowed.

From the aforesaid closer analysis of Mohd. Rashid Ahmad etc.''s case (supra), it seems to be more than manifest that the same would be wholly distinguishable. In the present case admittedly there is no Government circular or instruction whatsoever providing for any right of personal hearing or an opportunity to show cause. Indeed everything points to the contrary. No question, therefore, of the applicability of any such circular or interpretation, arises herein, Nor is there any other infraction of the statutory rules as was found in the Supreme Court case. On this primary ground, therefore, it has to be held that the ratio of Mohd. Rashid Ahmad etc.''s case (supra) is not in any way attracted at all.

Again keeping the issue of the Government circulars altogether apart, a plain look at the afore-quoted juxtaposed corresponding provisions would leave no manner of doubt that these are far from being in pari materia and in fact the language appears to be widely dissimilar. A closer analysis which follows here-after would disclose even a greater disparity of in port and legal effect flowing from the provisions in the U.P. case and the present case. Consequently, it cannot be possibly said that the ratio of Mohd. Rashid Ahmad etc.''s case (supra), resting as it clearly is on the specific U.P. statutory provisions with their intricacies and innuendoes would ipso facto be attracted to the entirely different provisions of sub-sections (6) and (6-A) of Section 38 of the Punjab Municipal Act. It is axiomatic that the considered and binding decision of the Full Bench in Pal Singh''s case (supra), construing the latter provisions, cannot be given the go-by unless the statutory provisions in Mohd. Rashid Ahmed etc.''s case (supra) are identical in terms and their legal effect.

The most significant matter which calls for highlighting under the U.P. provisions is the fact that after the creation of the Municipal Corporations (Mahapalikas) for the cities of Kanpur, Agra, Varanasi, and Allahabad, the corresponding posts in the earlier municipal services, were intended to be finally absorbed in the centralised service along with their incumbents and in case of the latter being found unsuitable, their services were to be determined. In the said Municipal Corporations, there were not to be two services, namely the centralised service and the old one, but one service in place of the earlier so far as the centralised posts were concerned. By virtue of section 577(e) of the U.P. Nagar Mahapalika Adhiniyam, 1959, all officers and servants in the employ of the Municipality, Improvement Trust, Development Board or local authority before the appointed day, were to become officers and servants employed by the Mahapalika in a temporary capacity. Similarly, by virtue of clause (f) (4) of the said section, any officer who was found not to be suitable for any post created by the Mahapalika or to decline the post to which he was appointed, his services were to be terminated after giving him the necessary notice subject to his right to leave, pension and gratuity as he was entitled. Again the material provisions of rule 6(2) (v) of the U.P. Palika Centralised Service Rules, 1966, in turn provide that the services of officers and servants who either opted against absorption or were found to be unsuitable for absorption, shall stand determined subject to any ancillary right, if any, to leave pension, provident fund or gratuity etc. In essence the combined result of the statutory provisions was that the officers and servants of the previous-old municipal service were first automatically absorbed provisionally in the centralised service of the Mahapalika and thereafter if they were considered to be unfit for their posts, their services were compulsorily determined. In substance, as regards persons who were not absorbed and those who opted against absorption, it amounted to a virtual removal from their earlier service of whatever length and nature and having the effect of throwing such employees on the road. Such employees had no choice or volition in the matter. As pointed out earlier, under rule 6(2) (v) of the U.P. Palika Centralised Service Rules, the services of all those who opted against absorption as well as of those who were found to be unsuitable for absorption were statutorily declared to be determined forthwith. It was in the context of such a preemptory provision as also the Government circulars issued thereunder that the attractability of the rules of natural justice had to be considered in Mohd. Rashid Ahmad etc.''s case (supra).

However, the position under the relevant provisions of the Punjab Municipal Act seems to be entirely different, if not diametrically opposite. The scheme of section 38 of the Act obviously is that it gives every former municipal employee a clear and categoric choice to join the State level municipal service or not. Under the second proviso to sub-section (6), every such person is entitled to give a notice in writing to the State Government that he does not intend to become a member of the new service and on his doing so, his earlier rights in the old service are statutorily protected. Indeed his vested right to continue in the old service subject to the same terms and conditions that were applicable to him immediately before the constitution of the State level municipal service, is herein left altogether untouched. However, if he does not exercise such a right and in essence voluntarily opts for absorption to a superior State level municipal service, then his case is to be duly considered by an authority appointed by the Government. Such consideration is directed to be based on the basis of the municipal employee''s qualifications and his earlier service record. The question of his fitness for absorption or otherwise, is therefore, to be determined by an independent body and on the basis of statutory guidelines. In case he is found fit then he is to be absorbed and in a way promoted to the State level municipal service. Not only that the first proviso to section 38(6) guarantees that his terms and conditions of service shall not be varied to his disadvantage on his becoming a member of the State level municipal service. It is well settled that in such a situation all that the law prescribes is a consideration by the authority of the employee''s case and not that he must be personally heard or given an opportunity to buttress his claim for promotion and absorption in a superior service. This aspect was succinctly highlighted by the Full Bench in Pal Singh''s case (supra) in these terms :--

.....At the very outset, the employee is given the right to continue to hold the post held by him subject to the same conditions of service as before. He will be considered for membership of the new Service only if he does not intimate his intention of not becoming a member of such service. Thus if he does not intimate his desire to continue in the existing service to which he was a member he takes the chance of not being selected for membership of the new Service if he is found unfit. The membership of the new Service is to be determined on the basis of qualifications and service record by an authority appointed by the Government in that behalf. The guidelines are there. The question of fitness is determined by an independent body. There is nothing arbitrary about it. Nor does any question of giving an opportunity to the petitioner arise. No one can claim that he should be heard before the question of his fitness or unfitness for membership of a Service is determined.

It seems manifest that in view of the altogether different nature of the provisions of section 38 of the Punjab Municipal Act and they; legal import, the aforesaid observations of the Full Bench remain unimpeachable and unassailable.

Lastly under the Punjab Municipal Act the relevant statutory provisions do not indicate any intent on the part of the Legislature to afford any opportunity of hearing in this context. Subsection (6) of Section 38 of the Punjab Municipal Act does not appear open to a construction which would necessarily attract the principles of natural justice. On the other hand, sub-section (6-A) of Section 38 of the Punjab Municipal Act indeed, by its terminology, tends to negative any such intent. The Legislature seems to have advisedly used the language that in case of the municipal employed not being found fit, his post would be deemed to have been abolished. It is well settled by a long catena of judgments'' that in the case of abolition of post there is no right of hearing or opportunity to show cause to be given to its incumbent. It is obviously in this light that sub-section (6-A) of the Punjab Municipal Act does not choose to say that the services of a municipal employee not found fit would be determined or terminated, but in express terms says that the same should be deemed to have been abolished. The intent thus seems to be to negative and exclude the principles of natural justice, if at all, they were to be attracted.

In passing, it deserves mention that Reddy, J. who presided and rendered the judgment of the Full Bench in Pal Singh''s case (supra) was himself later a party to the judgment of the Supreme Court in Mazharul Islam Hashmi''s case (supra). Though there is no reference in the latter judgment, yet any intent to expressly or tacitly override the succinctly and categoric view, which he had expressed earlier in Pal Singh''s case (supra), is not to be easily presumed.

In the light of the foregoing discussion, the answer to the question posed at the very outset is rendered in the negative and it is held that the principles of natural justice are not attracted in the case of a municipal employee opting for absorption in the Punjab Municipal Services, u/s 38 of the Act. It is further held that the rule in Pal Singh''s case (supra), still holds the field and it is no way eroded or affected by the later judgments in Mohd. Rashid Ahmad etc.''s case (supra) and in Mazharul Islam Hasshmi''s case (supra) resting as they are on the specific contents of the statutory provisions applicable in Uttar Pradesh.

As was noticed earlier, the only issue that survives in this set of cases, namely, whether the principles of natural justice were attracted, has thus to be decided against the petitioners. All the writ petitions are accordingly dismissed without any order as to costs.