Taragati Bhattacharyya vs State of West Bengal

P.K. Banerjee, J.—The Petitioner was appointed the President of the Calcutta Improvement Trust Tribunal for 2 years by the State Government by a notification dated May 24, 1966. After the expiry of the said term the Petitioner was again appointed the President of the Tribunal but the appointment was limited upto November 30, 1968. The second appointment was made on May 25, 1968. After the expiry of the said term Sri P. Basu was appointed the President of the Tribunal. When the application was moved before this Court the Petitioner was holding the office. During the pendency of the application, the term expired and Sri P. Basu was appointed the President of the Tribunal. Thereupon, the Petitioner amended the petition adding Sri P. Basu as a party Respondent and further more asked for a writ of quo-warrant against the said added Respondent. After the Petitioner was so appointed the Petitioner brought to the notice of the authority that it is not possible u/s 72(4) of the Calcutta Improvement Act of 1911 to limit the term of the appointment to less than 2 years, and the appointment must be made for a term of 2 years, whereupon the State Government replied that in an '' earlier case of appointment of Sri K. P. Mukherjee the appointment was made for a term less than 2 years and, as such, there is a precedent and the appointment of the Petitioner for 6 months and 7 days is not invalid. The Petitioner again wrote a letter by way of demand of justice and moved this Court on November 12, 1968, and obtained the Rule. Mr. Chowdhury, appearing for the Petitioner, contended that once an appointment is made the appointment must be for a term of 2 years and the re-appointment of any incumbent must be also for a term of 2 years. Therefore, any appointment made for a term less than 2. years the said fixation of term is bad in law and the appointment must be for a term of 2 years.

Mr. Advocate-General appearing for the Respondent, however, contended firstly that if the order of appointment for less than 6 months is bad, as argued by Mr. Chowdhury, then the order of appointment of the Petitioner itself was null and void and illegal. Mr. Advocate-General further contended that the Petitioner''s contention that the appointment of the President of the Tribunal for 6 months and 7 days was illegal then the whole order must be quashed. Mr. Advocate-General further contended that the writ of quo-warranto cannot be issued against the Respondent as he was duly appointed on December 2,1968, and there was no infirmity in regard to that appointment. Thirdly, Mr. Advocate-General contended that the Petitioner accepted the appointment for a term of 6 months and 7 days, took benefit of the same and cannot now challenge the order of appointment. It is argued by Mr. Advocate-General that the Petitioner has waived his right, if any.

On the question of waiver of the right Mr. Advocate General''s contention cannot be accepted. It appears in the facts of this case that the Petitioner was all along making his grievance with the Government and, the Government having turned down his plea, he moved this Court before the term expired. In that view of the matter it cannot be said that the Petitioner has waived his right to challenge the order complained of. Moreover, the Petitioner all along insisted that the appointment was valid but it must be for a term of 2 years. Therefore, he is entitled to continue in the office during the period of 6 months and he only says that the term should be enlarged to the period of 2 years, because the appointment u/s 72(4) of the Calcutta Improvement Act of 1911 must be for a term of 2 years. Therefore, it cannot be said that the Petitioner has, waived his right to challenge the order. The next point argued by Mr. Chowdhury is that appointment or re-appointment u/s 72(4) of the Calcutta Improvement Act of 1911 must be for 2 years. It is argued by Mr. Advocate-General that if an appointment is made for less than 2 years the whole order of appointment must go. Section 72(4) of the Calcutta Improvement Act runs as follows:

72(4). The term of office of each member of the tribunal shall be 2 years but any member shall subject to proviso to Sub-Section 3 be eligible for re-appointment at the end of that term provided that a member who is an assessor shall not be eligible for re-appointment for more than a further term of 2 years.

Mr. Chowdhury argued that the plain reading of the section make it clear that the appointment u/s 72(4) must be for 2 years and cannot be less than that and re-appointment also must in the circumstances be for 2 years. This view is made clear by the proviso which gives further light to the expression ''term''.

This view is supported in principle by interpretation put forward by the Supreme Court in Y. Mahaboob Sheriff & Sons v. Mysore State Transport Authority and Ors. AIR I960 S,C. 347. The Supreme Court case was, however, in respect of the Motor Vehicles Act, 1939, and while interpreting Section 58 of the Motor Vehicles Act, the Supreme Court held that stage carriage permit granted for one year is bad insofar as it limits the period of permit, directed the Regional Transport Authority to grant the permit for not less than 3 years and not more than 5 years.

Mr. Advocate General, however, contended that in the case the Supreme Court made the order only because the Regional Transport Authority made it clear that they had decided to grant a permit and so the order was made. In that view of the matter Mr. Advocate-General contended clearly that the case cannot be applied in the facts of the present case.

Mr. Advocate-General further contended that if it is held that the order of appointment cannot be made for less than 2 years the whole order will be bad or, in other words, the order of appointment is in severable and must fail as a whole. Here again on the basis of the Supreme Court''s decision (1) I must hold that Mr. Advocate-General''s contention is not correct. It appears that the Government has a power of appointment that as soon as the appointment is made u/s 72(4) it must be for a term of 2 years. As the Government fixed a term at less than 2 years that portion of order which limits the term at less than 2 years may be quashed though the order of appointment would stand. In the Supreme Court case, further, because Section 58 gave the Regional Transport Authority the discretion to grant permit for more than 3 years and less than 5 years, the matter had to be referred to the Regional Transport Authority for fixation of the term of the permit. It appears I to me that but for Section 72(6) of the Act the argument made by Mr. Chowdhury would have been unanswerable.

But it appears to me on reading Section 72 as a whole and Section 72(6) in particular that there are some power given to the State Government to make an appointment of a member for a term less than 2 years in certain contingency that is to be found in Section 72, Sub-section (6). Sub-section (6) of the said section runs as follows:

When any person ceases for any reason to be a member of the tribunal or when any member is temporarily absent in consequence of illness or any other unavoidable cause the State Government or (if the person whose place is to be filled was appointed by the corporation) the corporation, or, in default of the corporation, the State Government shall forthwith appoint a person to be a member in his place.

On the said section Mr. Bose contended that that section only empowers the State Government to make an appointment for a lesser term when a particular person is holding the post as a member of the Tribunal and the said person is temporarily absent in consequence of illness or any other unavoidable cause. It does not apply in a case when the term of 2 years of an incumbent has already expired and a re-appointment of the said person has been made. This argument, however, do not take into consideration the opening words of Section 72(6) of the Calcutta Improvement Act of 1911 where it is stated that when any person ceases for any reason to be a member of the Tribunal and in that case the State Government shall forthwith appoint a person to be a member in his place. Under the said section there was no provision for appointment for a particular fixed term and it is given to the authorities to make the appointment u/s 72(6) for any term less than 2 years. Mr. Bose, however, argued that in the Motor Vehicles Act there is a provision for a grant of temporary permits, still the Supreme Court held the order for grant of permit for less than 3 years is bad. Therefore, the argument is that though the power to grant temporary permit was to be found in the Motor Vehicles Act still the Supreme Court held that the grant of permit for one year was bad. It appears, however, in that case that the permanent permit was made for one year and the temporary permit, as is well-known, cannot be issued for more than 4 months at a time u/s 62 of the Motor Vehicles Act. This argument therefore, in my opinion, cannot assist the Petitioner. It is stated in the affidavit that the Petitioner was retired as a Judge of the City Civil and Session Court. He was given an appointment for 2 years in the first instance which ended on May 25, 1968. As the Petitioner was not still 60, a further appointment was made whereby the Petitioner was re-appointed on May 25, 1968, upto November 30, 1968, that is, upto the time when the Petitioner was completing 60 years. In my opinion, u/s 72(6) it is possible for the State Government to make an appointment when any person ceases for any reason to be a member of the Tribunal and the said appointment can be made temporarily. It is not necessary in a case falling u/s 72(6) to make an appointment for 2 years as is incumbent u/s 72(4).

It is stated that the impugned appointment was made u/s 72(4) and not u/s 72(6). It is well-settled that if the State Government has a power, the wrong citation of section in the order will not make the order bad. In my opinion, Section 72(6) empowers the State Government to make a temporary appointment in respect of any member of the Tribunal. As in my view the Petitioner cannot have any grievances in respect of appointment for a shorter period, the appointment of Mr. P. Basu cannot be challenged as illegal.

In the result the Rule is discharged. There will be no order as to costs.