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Judgment
Tejinder Singh Doabia, J.—A Government Order issued on 22/04/1998 whereby the Commissioner & Secretary to Government, Housing
& Urban Development Department has formed an opinion that the petitioners had not done any extra ordinary work which warranted grant of
advance increments, is subject matter of challenge in this petition. For facility of reference the above order is being reproduced below :
Government of Jammu and Kashmir
Civil Sectt. Housing & Urban Development Department. Government Order No. 159HIUD (LSG) of 1998
Dated : 22.4.1998.
Whereas Executive Officer, Jammu Municipality vide endorsement No. Mj/Estt/PA/26770 dated 22.11.1997 has issued an order sanctioning two
advance increments in favour of S/Sh. B.S. Jamwal and Vijay Gupta Chief Khilafwarzi Officers of Jammu Municipality.
Whereas per Section 51 of the Jammu and Kashmir Municipal Act only the Government is competent to sanction such increments in favour of
Municipal Officers.
Whereas the Government have considered this issue and is of the opinion that S/Sh. D.S. Jamwal and Vijay Gupta Chief Khilafwarzi Officers of
Jammu Municipality have not renderd any extraordinary service which warrant sanctioning of such advance increments.
Therefore, the order of the Executive Officer issued vide endorsement No. Mj/Estt/PA/26770 dated 22.11.1997 sanctioning advance increments
in the favour is hereby set aside.
By order of the Government.
Sd/
(P.G. Dhar Chakrabarti)
Commr & Secretary to Govt.
The basic contention of the two petitioners is that in the capacity of Chief Khilafwarzi Officers they had done extraordinary work. They had
shown dedication, devotion and integrity to the entire satisfaction of their superiors. On account of their distinguished service, they were allowed
two advance increments. An order to this effect, copy whereof is annexure `D' was passed. For facility of reference this order is being reproduced
below :
Office of the Executive Officer, Jammu Municipality.
Jammu.
ORDER
After having closely watched the performance of the Municipal Officers during the current financial year 199798, it has been noticed that Sh. B.S.
Jamwal and Sh. Vijay Gupta, Chief Khilafwarzi Officers of the Jammu Municipality have rendered extra ordinary good service to the Municipality
Jammu which calls for a special mention and encouragement. They fearlessly worked for the interest of the Municipality, Jammu despite all odds
and even at risk to their lives to check the menace of Khilafwarzi/encroachment in the city. They are responsible to raise the compounding fee at a
record level. They shown excellent performance and devotion to duty while removing unauthorised constructions encroachments in the city.
Now, therefore, two advance increments are hereby sanctioned w.e.f. 01/10/1997 as incentive each in favour of S/Shri B.S. Jamwal & Vijay
Gupta, Chief Khilafwarzi Officers of the Jammu Municipality.
By order of the Administrator, Jammu Municipality.
Sd /
(Ravi Thussu)
Executive Officer.
It is the conferring of this benefit which has been taken away by the State Government. This has basically been done on the plea that the power
to grant advance increments vested in the State Government and the order issued in this regard by the Executive Officer of the Jammu Municipality
is not in accordance with the law. As the State Government has exercised power under section 51 of the J&K Municipal Act of Samvat 2008, it
would be apt to notice this provision also. This reads as under :
Appointment and Salary of other Principal Officers The Government may in consultation with the president of the Council, concerned, appoint
fit, proper and duly qualified persons to be the Medical Officer of Health, the Executive Engineer, the Assistant Engineer, the Secretary, the
Revenue and Khilafwarzi Officer, Horticulture Officer and Octroi Officer or any other gazetted officer required by the Council for whom a post
exists.
Other provision which has some relevancy for the disposal of this petition is section 53. This is also being reproduced below :
Payment of pension and gratuities to Municipal Officers and servants. The Council may pay pensions, gratuities, compassionate allowance to
its officers and servants and make on their behalf payments to Provident Fund, annuity funds and grant leave or acting allowances in accordance
with the byelaws to be made in this behalf.
Before dealing with the legal aspect, it would be apt to notice the stand taken by the Municipal Council. In the objections preferred by it, a
categoric stand has been taken that the two petitioners were conferred the benefit of advance increments by the Municipality keeping in view their
dedication to work. This has been described as ""par excellence in performance"". The Municipality is of the considered opinion that it is for the
Municipality to confer this benefit on its employees. This having been done bonafide cannot be made subject matter of challenge by the State
Government. What is said in the reply given in para 34 and 11 are reproduced below :
That the contents of these paras are matter of record and the same can be produced before the Hon'ble Court as and when directed. It is
further submitted that officers of the Municipality conferred with the powers of allowing advance increments to employees are best judge to assess
the merit, ability and dedication of its employees and as such the petitioners were rightly conferred with the benefits of advance increments.
That the contents of para 11 are mostly not relating to answering respondents, however, the answering respondents are best judge to assess
the merit, competency and performance of their officials in the matter of the extra ordinary incentives to them.
So far as the State Government is concerned, for reasons best known to it, has not chosen to file any counter affidavit. Thus the stand of
respondents 3 and 4 is that two advance increments were rightly given. It is grant of this benefit which has been taken exception to by the State
Government. It be seen that so far as section 51 of the Municipal Act is concerned, it deals only with the matter of appointing persons to the post
of Medical Officer of Health, the Executive Engineer, the Assistant Engineer, the Secretary, the Revenue and Khilafwarzi Officer. After the
appointments are made, the State Government so far as section 51 is concerned, would become functous officio. So far as the grant of allowance
including compassionate allowances are concerned, powers stand vested in the Council. This is apparent from section 53. Therefore, when section
51 of the Municipal Act is read as it is, it becomes apparent that it confers no power on the Government to interfere in the manner which has been
done in this case. The only enabling provision where the State Government could have acted is the one contained in section 258 of the Municipal
Act. Subsection, (1) and (2) of Section 258 are relevant and reproduced below :
Power to suspend any resolution or order. (1) If the Government area of opinion that the execution of any resolution or order of the Council
or of any other Municipal authority or officer subordinate thereto or the doing of any act which is about to be done or is being done by or on behalf
of the council, is not in conformity with law or with the rules or byelaws made thereunder, or is likely to lead to be a breach of the peace or to
cause injury or annoyance to the public or to any class or body of persons or is likely to cause waste or damage of Municipal Funds, the
Government may, by order in writing, suspend the execution of such resolution or order or prohibit the doing of any such act.
(2) A copy of such order of the Government shall thereupon be sent to the Council by the Government.
No doubt, under the aforementioned section, in the exercise of power to control vested in the State Government in Chapter XXVI, the State
Government could suspend any resolution or order of the Council but before this could be done an opportunity of hearing was required to be given
to the Municipal Council. An opportunity of hearing was required to be given not only to the Municipal Council but also to the person likely to be
affected. In this regard it would be apt to refer to the decision of the Lahore High Court in a case reported as AIR 1936 Lahore 689 ""Mistri
Mohammad Hussain v. Municipal Committee, Sialkot"" and also the decision reported as AIR 1949 Allahabad 56 ""Mahadeo Prasad v. U.P.
Government"". This precise question was also dealt with in a case reported as (1992) Punjab Legal Reports and Statutes 613, ""Kanwaljit Kaur and
others v. Punjab State and others"". What is said in paragraph 5 & 6 is quoted below:
On the other hand, learned counsel for the respondents, as well as for the Municipal Committee raised a preliminary objection that the
petitioners had no locus standi to challenge the validity of the order of the State Government annulling the resolution of the Municipal Committee
and it is only the Municipal Committee which could make any grievance regarding the annulment. They further submitted that the reason given in
the impugned order was not the only reason to annul the resolution of the Committee and there were some other grounds also which had been
mentioned in the written statement and were borne from the record. In support of the preliminary objection, the learned counsel for the
respondents cited Shri Baldev Raj Sharma v. The State of Punjab and another, 1972 PLR 144; Karam Singh v. The State of Punjab and others,
1979 PLR 426; Jagdish Rai Chawla v. The State of Punjab and others, 1988(4) Punjab Legal Reports and Statutes 661 and Shri Subhash
Chandra and others v. Municipal Corporation Delhi and another, AIR 1965 Supreme Court 1275.
I have gone through the abovesaid authorities and find that in none of these cases any right had come to vest in an individual by virtue of the
resolution of the Municipal Committee and further it was held that the individual had no right to be heard before the annulment of the resolution as
they were not the affected persons. However, in the present case, as observed above, the petitioners had in fact joined in pursuance of the
resolution of the Municipal Committee and that resolution was not subject to any approval of the State Government. A right had come to vest in
them that till their services were legally terminated they would continue in service. In the present case, they are not challenging the annulment of the
resolution on the ground that they were not heard prior to the passing of the impugned order by the State Government. To be fair to the learned
counsel for the petitioners, he cited S.L. Kapur v. Jagmohan and others, AIR 1981 SC 136 to contend that the Supreme Court had held that
persons like the petitioners had a right to be heard before the State Government was to pass an order detrimental to them. It is not necessary for
me to go into this aspect. For the aforementioned reasons, I overrule the preliminary objection of the respondents.
As per the editorial note a Letters Patent Appeal was preferred in the above case by the State and the same was dismissed. The ratio of the above
decision is fully applicable to the facts of this case.
In the present case the opportunity of hearing was not given neither to the Municipal Council nor to the petitioners. Therefore, order dated
22.04.1998 by which advance increments given to the petitioners were withdrawn is held to be void and the same is quashed. The Government is
left free to pass fresh orders after affording an opportunity of hearing to the petitioners and also to the Municipality.