The Commissioner, Corporation of Madras vs M. Dharmarajulu Naidu

Rajamannar, C.J.—This is an appeal against the order of Subba Rao, J. on an application made by the respondent under S. 45 of the

Specific Relief Act for directing the Commissioner of the Corporation of Madras to give effect to the resolution of the Council dated 8th July,

1952. By this order, the learned Judge granted the application and issued the direction as prayed. The Commissioner of the Corporation of

Madras is the appellant before us. The essential facts are not in dispute. The respondent is a doctor who had put in several years of service under

the Corporation. At the material time, he was holding the office of Medical Officer (Malaria). The scale of pay of that office originally was Rs.

200-10-300. The respondent was receiving in that time scale Rs. 270 a month. Besides his pay, he was also being paid a car allowance of Rs.

100 and other allowances amounting to Rs. 39 a month. In December, 1951, the Commissioner made a proposal that the scale of pay of the

Medical Officer (Malaria) may be revised from Rs. 200-10-300 to Rs. 200-25/2-400. The proposal eventually came before a meeting held at a

joint conference of the Standing Committees of Health, and Taxation and Finance, and they passed the following proceedings thereon :

Commissioner''s proposal recommended for acceptance subject to the proviso that the maximum be fixed at Rs. 450 instead of Rs. 400 and the

pay of the present incumbent be fixed at Rs. 350 per mensem in the revised scale with effect from 1-1-1952.

Resolved that the scale of pay of the Medical Officer (Malaria) be revised as from 1st April, 1951 to Rs. 200-25/2 350 25-450 and the pay of the

present incumbent be fixed at Rs. 350 per mensem on that date.

Resolved further that he be granted a compensatory allowance of Rs. 80 per mensem since he is totally debarred from having private practice.

The matter went up before the Municipal Council who passed a resolution on 8th July, 1952 accepting the recommendations made at the joint

Conference of the Standing Committees of Health, and Taxation and Finance. It is this resolution that the respondent wanted the Commissioner to

implement.

A copy of the above resolution of the Council was sent to the State Government on 12th September, 1952, the Commissioner apparently taking

the view that the sanction of the Government was necessary for carrying out the resolution. The Government informed the Commissioner that

sanction of the Government was not necessary. The Commissioner was evidently not satisfied with the decision of the Government and again

addressed them inviting their attention to what he considered to be a certain important point which had been overlooked by them. Meanwhile the

respondent filed the application out of which this appeal has arisen.

In our opinion, the application made by the respondent should have been allowed on a short ground, namely, that under S. 24 of the City

Municipal Act, the Commissioner was bound to give effect to every resolution of the Council unless such resolution is cancelled in whole or in part

by the State Government. It is not denied that the Government have not cancelled the resolution in whole or in part. Even if the Commissioner

considered that the resolution was not proper or valid, all that he could do was to bring the error or defect to the notice of the Council and to the

notice of the Government as well. But he cannot in the exercise of his own discretion refuse to carry out the resolution. Such a course would lead

to a deadlock and encourage indiscipline. In his counter affidavit, the Commissioner sought to escape from the effect of S. 24 by referring to S. 44.

But that section only requires the Mayor to submit to the State Government copies of all resolutions and empowers the State Government to

cancel any resolution in whole or in part on the ground that it is in excess of the powers conferred by the Act or by any rules made under the Act.

So long as any resolution has not been cancelled in whole or in part by the Government, it is incumbent on the Commissioner to give effect to every

resolution of the Council.

As, however, the merits were fully argued before Subba Rao J. and before us, and as Dr. John, learned Counsel for the Corporation of

Madras, invited us to give our opinion on the points raised by the Commissioner, we shall briefly deal with them.

To follow the contentions raised on behalf of the Commissioner, it is necessary to refer to certain provisions of the City Municipal Act. Ss. 85 to

97 of the City Municipal Act deal with the Establishment of the Corporation. Ss. 85 and 86 relate to certain important officers like the Heath

Officer, Revenue Officer, Educational Officer, and the Electrical and Waterworks Engineers, and certain special officers. We are not concerned

with any of the offices which fall under Ss. 85 and 86.

S.90 confers the power of appointment to the Corporation Establishment (a) on the Council if the maximum monthly salary of the office exceeds

Rs. 500, and (b) on the Commissioner in all other cases. This section too, is not relevant to this case, as there is no question of an appointment to

any such office. S. 91 is the most relevant section. It runs as follows :

91 (1). The Commissioner shall, from time to time, lay before the Standing Committee a schedule setting forth the designations and grades of the

officers and servants who should in his opinion constitute the corporation establishment, and embodying his proposals with regard to the salaries,

fees and allowances payable to them.

(2) The Standing Committee may either approve or amend such schedule as it thinks fit and shall lay it before the Council with its remarks, if any.

(3) The Council shall sanction such schedule with or without modifications as it thinks fit and may from time to time amend it at the instance of the

Commissioner and Standing Committee;

Provided that any amendment or modification made by the Standing Committee or Council shall relate only to alterations in, additions to, or

omissions from, the schedule previously in force, which are proposed by the Commissioner;

Provided further that no new office shall be created without the sanction of the State Government if the maximum monthly salary exceeds two

hundred and fifty rupees.

The contention of the Commissioner is that under the second proviso to Sub. S. (3) of S. 91, no new office carrying a monthly salary exceeding

Rs. 250 can be created without the sanction of the State Government and the grant of a premature increment to the appellant could be made only

by an authority who has the power to create a post in the same cadre and same scale of pay as laid down by R. 21 of the Corporation service

rules. That rule runs as follows :

An authority may grant a premature increment to a Corporation servant on a time scale of pay if it has power to create a post in the same cadre on

the same scale of pay.

As a post carrying a scale of pay as proposed by the Commissioner could not be created without the sanction of the Government, the proposal

to give a premature increment should also have the sanction of the State Government. Dr. John in the course of his argument raised a further point

as regards the compensatory allowance of Rs. 80 per month, namely, that the Council could not have granted it, because under the first proviso to

S. 91 (3) of the Act, any amendment or modification made by the Council can only relate to ""alterations in, additions to or omissions from, the

schedule previously in force, which are proposed by the Commissioner."" As this allowance was not among the proposals made by the

Commissioner, the Council had no power to sanction it. Dr. John was willing to concede that the Council had power to modify the proposal made

by the Commissioner in so far as the maximum of the scale was concerned. That is to say, instead of Rs. 200-25/2-400, the Council could fix Rs.

200-25/2-350-25-450.

But, according to the Commissioner, the Council is not competent to fix the pay of the present incumbent, namely, the respondent, at Rs. 350

in the revised scale, because the Council has no power to create a post on that scale of pay, without the approval of the Government.

It appears to us that two distinct things have been mixed up in the consideration of the validity of the impugned resolution of the Council. That

resolution covers two distinct matters :(1) the scale of pay of the Medical Officer (Malaria) and (2) the pay of the present incumbent of the post

and the allowance to be paid to him. So far the first is concerned, it undoubtedly falls within S. 91 (3) of the Act. There was a proposal by the

Commissioner for an alteration in the scale of pay of the Medical Officer (Malaria). The Council, therefore, had the power of modifying the

proposal by raising the maximum to Rs. 450. Dr. John, as already mentioned did not dispute this. The other matter relates to the present incumbent

of the post and that is not covered by S. 91 at all. The grant of compensatory allowance is provided for by R. 36 of the Madras Corporation

Service Rules which runs as follows:

Compensatory allowances :Subject to the general rule that the amount of a compensatory allowance should be so regulated that the allowance

is not on the whole a source of profit to the recipient, the Council may grant such allowances to any Corporation servant and may make rules

prescribing their amounts and the conditions under which they may be drawn.

Under this provision, it is the Council which has got the power to make the grant, and it is the Council which made it. The grant of a premature

increment is covered by R. 21 already mentioned. Under that rule, the authority empowered to grant such increment is the authority which has

power to create a post in the same cadre on the same scale of pay. That authority is the Corporation Council. Dr. John referred to S. 90 of the

Act which conferred a power on the Commissioner to make appointments to the Corporation Establishment if the maximum monthly salary of the

office does not exceed Rs. 500. But that section relates only to the appointments and not to the creation of the posts. That right is only with the

Corporation. We agree with Subba Rao, J. that this rule does not ipso facto bring in the second proviso to S. 91 (3) of the Act that no new office

shall be created without the sanction of the Government if the monthly salary exceeds Rs. 250. R. 21, as we understand it, confers full power on

the Corporation in this case to grant a premature increment to the respondent. The fact that such an increment was not among the proposals made

by the Commissioner would not curtail the power of the Council.

We may also add that we are in entire agreement with he construction placed by the Government on the second proviso to S. 91 (3) of the

Act, in dealing with this case As the office of the Medical Officer (Malaria) was not a new office, the sanction of the Government was not

necessary to enable the Council to increase the time-scale of the officer. Dr. John represented to us that there was an anxiety on the part of the

Commissioner that he might be surcharged for giving effect to any resolution of the Council which may afterwards be held to be invalid or improper

by the Government. We are clearly of the opinion that it is an unfounded apprehension. So long as the action of the Commissioner is supported by

a resolution of the Council not cancelled or modified by the Government, there can be no possibility of any surcharge against the Commissioner.

The liability if, any, would be on the Council. The appeal fails and is dismissed with costs.