# Appointment Deparmtnet v. Vishnu

- **Citation:** (2011) 3 ILRA 1108
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-02
- **Case number:** Civil Misc. Writ Petition No. 45362 of 2011
- **Bench:** Ashok Bhushan, Bharati Sapru
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/appointment-deparmtnet-v-vishnu-42051
- **Pages:** 13

## Headnote

Sri S.G. Hasnain(A.A.G.)
Sri Syed Fahim Ahmed
Sri Anurag Kumar
Sri Manoj Mishra
C.S.C.

U.P. Municipalities Act, 1916-Section
48(2)-cessation of Administrative and
Financial Power of Chairman Nagar
Palika-on report submitted by District
Magistrate-subjective
satisfaction
recorded by the Government can not be
without
material-nor
faulty
mean
because of elapsed of one and half years
time-held order impugned warrant no
interference.

Held: Para 32

In the present case, when the State
Government has recorded its objective
satisfaction that the charges are not
groundless and the President is primafacie guilty of the charges, it cannot be
said that the cessation of financial and
administrative powers of the petitioner
3 All Sardar Javed Khan V. State of U.P. and others
1109
is illegal merely because more than one
and a half year has elapsed from the
submission of the report by the District
Magistrate.
The
consequence
as
contemplated under Section 48(2) of the
Act, 1916 shall ensue as and when the
power is exercised under Section 48(2)
of the Act, 1916 and the mere fact that
certain time has elapsed and the State
Government did not promptly take action
in any manner vitiates the proceeding in
exercise of power under Section 48(2) of
the Act, 1916.
Case law discussed:
2011
(3)
ADJ
502;
Writ
Petition
No.
16029/2011, Sanjeev Agarwal Vs. State of U.P.
& others

## Text

1108 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
concern, but condemnation. There is
something basically wrong which needs be
analysed and rectified at the earliest. The
State cannot forget that being custodian of
public funds which belong to tax payers
(people of this State), it cannot plunder
with it in such reckless and negligent
manner. Everybody has to be accountable
for spending even a single shell from
public funds. Anybody responsible for
wastage must be required to explain and
bear it. Public funds cannot be allowed to
be thrown and misused in such a manner.

10. Time and again, the Apex Court
and this Court have repeatedly said that
State should refrain from filing frivolous
petitions, wasting precious time of Court
so that other substantial matters may be
taken up and decided.

11. Recently in Writ Petition No.
474 (SB) of 2011 (State of U.P and
another Vs. Brij Bhushan Sharma),
decided on 17.03.2011, a Division Bench,
has deprecated such practice of State of
filing frivolous writ petitions :

"We deprecate such practice on the
part of the State. . . ."

12. In another matter, i.e., Writ
Petition No. 473 (SB) of 2011 (State of
U.P
through
Principal
Secretary
Appointment Deparmtnet Vs. Vishnu
Swarup Mishra and another), decided on
17.03.2011 while dismissing writ petition,
the Court said:

"We direct the Chief Secretary of
State to formulate a policy in the matter of
filing such petitions which are causing
unnecessary burden for disposal, on this
Court."

13. In view of the above, this writ
petition
is
dismissed
with
cost
of
Rs.10,000/- against the petitioners.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.09.2011

BEFORE
THE HON'BLE ASHOK BHUSHAN,J.
THE HON'BLE BHARATI SAPRU,J.

Civil Misc. Writ Petition No. 45362 of 2011

Sardar Javed Khan

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan
Sri Udayan Nandan
Sri Prem Chand

Counsel for the Respondents:
Sri S.G. Hasnain(A.A.G.)
Sri Syed Fahim Ahmed
Sri Anurag Kumar
Sri Manoj Mishra
C.S.C.

U.P. Municipalities Act, 1916-Section
48(2)-cessation of Administrative and
Financial Power of Chairman Nagar
Palika-on report submitted by District
Magistrate-subjective
satisfaction
recorded by the Government can not be
without
material-nor
faulty
mean
because of elapsed of one and half years
time-held order impugned warrant no
interference.

Held: Para 32

In the present case, when the State
Government has recorded its objective
satisfaction that the charges are not
groundless and the President is primafacie guilty of the charges, it cannot be
said that the cessation of financial and
administrative powers of the petitioner
3 All Sardar Javed Khan V. State of U.P. and others
1109
is illegal merely because more than one
and a half year has elapsed from the
submission of the report by the District
Magistrate.
The
consequence
as
contemplated under Section 48(2) of the
Act, 1916 shall ensue as and when the
power is exercised under Section 48(2)
of the Act, 1916 and the mere fact that
certain time has elapsed and the State
Government did not promptly take action
in any manner vitiates the proceeding in
exercise of power under Section 48(2) of
the Act, 1916.
Case law discussed:
2011
(3)
ADJ
502;
Writ
Petition
No.
16029/2011, Sanjeev Agarwal Vs. State of U.P.
& others

(Delivered by Hon'ble Ashok Bhushan,J).

1. Heard Shri Shashi Nandan,
learned Senior Advocate assisted by Shri
Prem Chand and Udayan Nandan for the
petitioner, Shri S.G. Hasnain, Additional
Advocate General for the respondents and
Shri Anurag Khanna for the applicant i.e.
Roop Singh who has sought impleadment
in the writ petition.

2. By this petition, the petitioner has
prayed for quashing the order dated
25/7/2011,
passed
by
he
State
Government issuing show cause notice to
the petitioner, the President Nagar Palika
Parishad, Rampur to show cause as to
why he be not removed from the office of
President on the charges as mentioned in
the notice issued under Section 48(2) of
the
U.P.
Municipalities
Act,
1916
hereinafter referred to as the "Act 1916".
The State Government also while issuing
the show cause notice directed that the
charges being serious in nature the
petitioner's financial and administrative
powers shall remain ceased till he is
exonerated from the charges.

3. The petitioner was elected as the
President Nagar Palika Parishad, Rampur
in October, 2006. Twenty Two temporary
posts of drivers were created in Nagar
Palika Parishad, Rampur by order dated
28/8/2006.
Nagar
Palika
Parishad,
Rampur issued an advertisement on
30/12/2006, inviting applications for
appointment on 22 posts of drivers from
the candidates having Driving Licence
with an ability to read and write Hindi.
143
applications
were
received
in
response to the aforesaid advertisement. A
Selection Committee consisting of the
President (Petitioner), Executive Officer,
Senior
Health
Officer,
Executive
Engineer, Assistant Tax Superintendent
and Accounts Officer was constituted by
the Chairman and the selection took place
on 21/4/2008 and 22 persons were given
appointment.

4. The State Government has
extended the appointment of the 22
selected candidates on temporary posts
which extension is up to 28/2/2012. A
complaint was submitted by one Dinesh
Sharma on 07/7/2008 and one by Ritu
Joshi on 04/8/2008 to the office of
Hon'ble The Chief Minister making
allegations against the recruitment of 22
drivers. Several Corporators of the Nagar
Palika Parishad also submitted complaints
to
the
Minister,
Nagar
Vikas
in
December, 2008 on which an order was
passed by the minister concerned to the
Principal Secretary, Nagar Vikas to
enquire into the matter and submit a
report. The State Government by the letter
dated 18/2/2009, wrote to the District
Magistrate to submit a report on a
complaint submitted by Uma Sharma,
Corporator and others. Another letter
dated 18/11/2009 was issued by the
Special Secretary, State Government
1110 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
referring to complaint submitted by one
Girish Chand, M.L.A. directing the
District Magistrate to submit a report after
giving opportunity of hearing to the
petitioner
and
also
following
the
procedure prescribed in the Government
Order dated 04/2/2003. The District
Magistrate wrote to the petitioner on
04/11/2009, to submit his explanation on
the
complaint
submitted
by
the
Corporators. The petitioner asked for the
report and copy of the complaint which
was provided to the petitioner by letter
dated 13/11/2009. The petitioner was
asked to submit his reply by 05/12/2009.
The petitioner submitted his reply dated
05/12/2009 which was received on
07/12/2009. The District Magistrate after
considering the reply of the petitioner
submitted a detail report to the State
Government by letter dated 09/12/2009,
recommending for taking action against
the President and the Executive Officer of
the Municipal Board. After receiving the
report of the District Magistrate, a notice
has been issued on 25/7/2011 by the State
Government under Section 48 (2) of the
Act, 1916 with an order that the petitioner
shall cease to exercise financial and
administrative powers.

5. Learned counsel for the petitioner
challenging the order dated 25/7/2011,
submitted that the report of the District
Magistrate dated 09/12/2009, could not
have been relied by the State Government
since the report has not been submitted in
accordance with the procedure prescribed
by
the
Government
Order
dated
04/2/2003.
He
submits
that
the
Government
Order
dated
04/2/2003,
provides for the procedure of enquiry on a
complaint against the President of Nagar
Palika Parishad and it states that enquiry
be held only when the complaint is
accompanied by an affidavit. He submits
that no affidavits were filed by the
complainant, hence no enquiry ought to
have been taken and the report of the
District Magistrate 09/12/2009, could not
form any basis for issuing any show cause
notice under Section 48 (2) of the Act,
1916. It is further submitted by the
learned counsel for the petitioner that
there was no occasion of ceasing financial
and
administrative
powers
of
the
petitioner after a lapse of 3 years from
making appointment of 22 drivers. He
submits that the appointment of 22 drivers
were made in the Nagar Palika Parishad,
Rampur
in
accordance
with
the
Government Order dated 17/3/1952 copy
of which is filed as (Annexure-9) to the
writ petition and the provisions of Uttar
Pradesh Procedure for Direct Recruitment
for Group-C Posts (Outside the purview
of
Uttar
Pradesh
Public
Service
Commission) Rules, 2001 hereinafter
called the "Rules,2001" are not applicable
with regard to appointment of drivers to
be made in the Nagar Palika Parishad. He
submits that the charges levelled against
the petitioner on the provisions of the
aforesaid Rules, 2001 are misconceived
and unfounded. He submits that the
appointment of 22 drivers were made in
accordance with the Government Order
dated 17/3/1952 as applicable in the
Municipal Board. He further submits that
minor discrepancies and the mistake
pointed out in the report of the District
Magistrate dated 09/12/2009, are not
sufficient
for
initiating
proceedings
against the petitioner under Section 48 (2)
of the Act, 1916 or to cease financial and
administrative powers. He submits that
the report of the District Magistrate was
submitted on 09/12/2009, but no action
was taken till 25/7/2011, which clearly
indicates that there was no urgency in the
3 All Sardar Javed Khan V. State of U.P. and others
1111
matter and at this late stage the cessation
of financial and administrative powers is
illegal. He further submits that it is not
necessary for proceeding under Section
48 (2) of the Act, 1916 to cease financial
and administrative powers of a President.
He has placed reliance on a Full Bench
judgment of this Court in Hafiz Ataullah
Ansari Vs. State of U.P. & Ors, 2011 (3)
ADJ 502.

6. Shri S.G. Hasnain, Additional
Advocate General appearing for the
respondents refuting the submission of the
learned
counsel
for
the
petitioner
contended that the charges levelled
against the petitioner are serious in nature.
The appointments of 22 drivers made in
the Nagar Palika Parishad, Rampur was
not made in accordance with law. He
submits that although it was claimed that
143 candidates appeared, but in the
attendance sheet there was signature of 34
persons only. He submits that one Shri
Rashid Ali was not a candidate nor he
appeared in the interview but his name
was included in the select list.

7. Shri S.G. Hasnain, Additional
Advocate General appearing for the
respondents submits that the Rules, 2001
are applicable for the recruitment of
drivers in the Nagar Palika Parishad and
neither the selection committee was
constituted properly nor any driving test
was taken of the drivers and the
recruitment of 22 drivers being wholly
illegal, the State Government has rightly
issued show cause notice to the petitioner
under Section 48(2) of the Act, 1916. He
submits
that
the
cessation
of
administrative and financial powers are
consequent to the fact that the charges
against the petitioner are serious and the
State
Government
has
initiated
proceedings under Section 48(2) of the
Act, 1916 for the removal of the
petitioner.

8. Shri Anurag Khanna appearing
for the applicant i.e. Roop Singh
submitted that the petitioner has already
submitted
his
reply
to
the
State
Government on 11/8/2011, hence the
petition has become infructuous. He
further submits that there were other
serious misconducts committed by the
petitioner including the misconduct of
financial impropriety which regard to
which the District Magistrate has already
sent his report to the State Government on
18/3/2010, 08/1/2010, 01/11/2010 and
06/3/2010. He submits that there being
serious allegations against the petitioner,
petitioner is not a fit person in whose
favour this Court may exercise its
discretion under Article 226 of the
Constitution of India.

9. We have heard learned counsel
for the parties and have perused the
record.

10. The order impugned has been
issued by the State Government in
exercise of power issued under Section
48(2) of the Act, 1916.

Section 48(2) of the Act, 1916 along
with the proviso is quoted below:

"48. Removal of President.- (1)
[omitted]

(2) Where the State Government has,
at any time, reason to believe that -

(a) there has been a failure on the
part of the President in performing his
duties, or
1112 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

(b) the President has -

(i)
incurred
any
of
the
disqualifications mentioned in Sections
12-D and 43-AA; or

(ii) within the meaning of Section 82
knowingly acquired or continued to have,
directly or indirectly, or by a partner, any
share or interest, whether pecuniary or of
any other nature, in any contract or
employment with, by or on behalf of the
Municipality; or

(iii) knowingly acted as a President
or as a member in a matter other than a
matter referred to in clauses (a) to (g) of
sub-section (2) of Section 32, in which he
has, directly or indirectly, or by a partner,
any share or interest, whether pecuniary
or of any other nature, or in which he was
professionally interested on behalf of a
client, principal or other person; or

(iv) being a legal practitioner acted
or appeared in any suit or other
proceeding on behalf of any person
against the Municipality or against the
State Government in respect of nazul land
entrusted to the management of the
municipality, or acted or appeared for or
on behalf of any person against whom a
criminal proceeding has been instituted by
or on behalf of the municipality; or

(v) abandoned his ordinary place of
residence
in
the
municipal
area
concerned; or

(vi) been guilty of misconduct in the
discharge of his duties; or

(vii) during the current or the last
preceding term of the Municipality, acting
as President or Vice- President, or as
Chairman of a Committee, or as member
or in any other capacity whatever,
whether
before
or
after
the
commencement of the Uttar Padesh
Urban Local Self Government Laws
(Amendment) Act, 1976 so flagrantly
abused his position or so wilfully
contravened any of the provisions of the
Act or any rule, regulation or bye-law, or
caused such loss or damage to the fund or
property of the Municipality as to render
him unfit to continue to be President; or

(viii) been guilty of any other
misconduct whether committed before or
after the commencement of the Uttar
Pradesh Urban Local Self Government
Laws (Amendment) Act, 1976 whether as
President or as Vice-President, exercising
the powers of President or as Vice-
President,or as member; or

[(ix) caused loss or damage to any
property of the Municipality; or;

(x)misappropriated or misused of
Municipal fund; or

(xi)acted against the interest of the
Municipality; or

(xii)contravened the provisions of
this Act or the Rules made thereunder; or

(xiii)created an obstacle in a meeting
of the Municipality in such manner that it
becomes impossible for the Municipality
to conduct its business in the meeting or
instigated someone to do so; or

(xiv)wilfully contravened any order
or direction of the State Government
given under this Act; or
3 All Sardar Javed Khan V. State of U.P. and others
1113

(xv)misbehaved without any lawful
justification
with
the
officers
or
employees of the Municipality; or

(xvi)disposed
of
any
property
belonging to the Municipality at a price
less than its market value; or

(xvii)encroached,
or
assisted
or
instigated any other person to encroach
upon the land, building or any other
immovable property of the Municipality,]

it may call upon him to show cause
within the time to be specified in the
notice why he should not be removed
from office]:

[Provided that where the State
Government has reason to believe that the
allegations do not appear to be groundless
and the President is prima-facie guilty on
any of the grounds of this sub-section
resulting in the issuance of the show
cause notice and proceedings under this
sub-section he shall, from the date of
issuance of the show cause notice
containing charges, cease to exercise,
perform and discharge the financial and
administrative powers, functions and
duties of the President until he is
exonerated of the charges mentioned in
the show cause notice issued to him under
this sub-section and finalization of the
proceedings under sub-section (2-A) and
the said powers, functions and duties of
the President during the period of such
ceasing, shall be exercised, performed and
discharged by the District Magistrate or
an officer nominated by him not below
the rank of Deputy Collector.]

11. The first submission of the
learned counsel for the petitioner is that
the report submitted by the District
Magistrate not being in accordance with
the Government Order 04/2/2003, said
report could not have been the basis for
taking any action against the petitioner.
Copy of the Government Order dated
04/2/2003 is filed as Annexure-7 to the
writ petition. The said Government Order
has been addressed to all the Divisional
Commissioners
and
the
District
Magistrates on the subject of disposal of
complaints received against the Presidents
and
Corporators
of
Nagar
Palika
Parishad/Nagar
Panchayat.
The
said
Government Order provides that the
complaints received against the said
office bearers will be entertained only
when the complainant had submitted his
own affidavit and affidavit of those
persons from whom he has obtained the
information regarding the allegations and
submit relevant documents. The said
Government Order has been issued with
an object to ward off the District
Magistrate
and
the
Divisional
Commissioner
to
entertain
frivolous
complaints which were not supported by
any
affidavit
and
which
have
no
substance. There cannot be any dispute
that the District Magistrate and the
Commissioner
had
to
consider
the
complaints received by them as per the
procedure prescribed by the Government
Order dated 04/2/2003, but present is a
case where the State Government has
initiated proceeding under Section 48(2)
of the Act, 1916 after receiving the
complaints directly from the Corporators
and other persons.

12. Section 48(2) of the Act, 1916
begins with the words "Where the State
Government has, at any time, reason to
believe that-."
1114 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

13. A Division Bench of this Court
in which one of us (Ashok Bhushan,J)
was
a
member
in
Writ
Petition
No.16029/2011, Sanjeev Agarwal Vs.
State of U.P. & Ors, decided on
25/8/2011, while considering the scope of
Section 48(2) of the Act, 1916 has laid
down following:

"Section 48 sub-section (2) of the
U.P. Municipalities Act, 1916 provides,
"Where the State Government has, at any
time, reason to believe that ............ it may
call for upon him to show cause within
the time to be specified in the notice why
he should not be removed from office."
The power under Section 48 thus can be
exercised by the State Government on its
subjective
satisfaction.
The
words
"reasons to believe" clothe the State
Government
jurisdiction
to
initiate
proceedings under Section 48(2). The
initiation of proceedings under Section
48(2) thus can be on the basis of any
material. The State Government can suomotu under Section 48(2) take cognizance
on any complaint submitted by an
individual or any information received
from the District Magistrate or the
Divisional Commissioner or any other
officer of the State. The power of the
State Government to initiate proceedings
under Section 48(2) is not hedged by any
precondition. The letter written by the
District Magistrate dated 8th June, 2009
and
the
letter
of
the
Divisional
Commissioner dated 12th August, 2009
cannot be said to be materials which were
irrelevant for initiating proceedings under
Section 48(2) of the U.P. Municipalities
Act, 1916. Thus the first submission of
learned counsel for the petitioner that the
State Government could not have issued
show cause notice dated 7th September,
2009 on the basis of the aforesaid two
letters, cannot be accepted."

14. The present is not a case where
the District Magistrate after receiving the
complaints of his own has submitted a
report
on
09/12/2009.
The
District
Magistrate has submitted his report in
pursuance of the direction issued by the
State Government.

15. In the counter affidavit filed by
the
State
Government,
letter
dated
18/2/2009 has been brought on record as
Annexure-3
by
which
the
State
Government has directed the District
Magistrate to submit his report on the
complaint of Uma Sharma and other
Corporators. The District Magistrate was
obliged to submit his report in pursuance
of the direction of the State Government
dated 18/2/2009. Although, another letter
dated 18/11/2009, was sent by the State
Government forwarding the complaint of
one Girish Chandra, M.L.A. in which the
District Magistrate was directed to obtain
affidavit of complainant after giving
opportunity to the delinquent to submit a
report but from the report of the District
Magistrate dated 09/12/2009, which has
been annexed as Annexure-10 to the writ
petition, it appears that even before the
letter dated 18/11/2009, was received,
District Magistrate had proceeded to
obtain the reply of the petitioner on the
complaints which was received from the
Corporators. The petitioner was informed
by letter dated 04/11/2009 to submit his
reply.
Thus,
the
proceeding
for
preliminary inquiry which was initiated in
pursuance of the direction of the State
Government dated 18/2/2009, was already
in progress and the mere fact that the
affidavits were not obtained from the
complainants in pursuance of letter dated
3 All Sardar Javed Khan V. State of U.P. and others
1115
18/11/2009, cannot be said to be a ground
to make the report of the District
Magistrate irrelevant.

16. Present is not a case where the
District Magistrate of his own has
submitted a report after receiving the
complaints which were not supported by
affidavits, rather present is a case where
the District Magistrate has submitted his
report under the directions of the State
Government, thus the report of the
District Magistrate dated 09/12/2009
cannot be said to be irrelevant for
exercising power under Section 48(2) of
the Act, 1916, thus the submission of the
learned counsel for the petitioner that the
report of the District Magistrate dated
09/12/2009 cannot be the basis for taking
action against the petitioner cannot be
accepted.

17. The next submission of the
learned counsel for the petitioner is that
the charges have been levelled against the
petitioner on the basis of 2001 Rules,
which
has
no
application
on
the
recruitment undertaken by the Nagar
Palika Parishad on the post of 22 drivers.
He submits that the Rules, 2001 have
been framed under the proviso to Article
309 of the Constitution of India and is
applicable on the employees of the State
Government and the entire allegations
made against the petitioner in the chargesheet regarding non-compliance of the
procedure for recruitment is unfounded.

18. The submission of the learned
counsel for the petitioner is that the Nagar
Palika Parishad proceeded to fill up the
vacancies of drivers in pursuance of the
Government
Order
dated
17/3/1952,
Annexure-9 to the writ petition which
itself provides for method of recruitment
and qualification.

19. At the first blush, the submission
made by the learned counsel for the
petitioner that the Nagar Palika Parishad
is free to make recruitment on the post of
drivers and is not regulated by the Rules,
2001 appears to be attractive, but when
the matter has been pondered by us, the
issue is not free from doubt and needs
further scrutiny.

20. Learned counsel for the
petitioner has relied on the Government
Order dated 17/3/1952, Annexure-9 to the
writ petition. By the said Government
Order,
paragraph
6
in
the
earlier
Government Order dated 10/4/1950 was
substituted which is to the following
effect:

"6. When direct recruitment to any
post specified in the annexure has to be
made it will be governed by the
educational qualifications shown therein.
Recruitments to posts from outside
should, however, be made through the
Employment Exchange; and the system of
filling up vacancies under Government
Departments should be adopted by local
bodies as already instructed in G.O.
No.3306/IX-156-47 dated June 2, 1948.
Local Bodies may also form a Committee
consisting of the Chairman or the
President, the Executive Officer of the
Secretary, as the case may be and the
principal administrative officer of the
department
concerned,
to
make
a
selection from amongst the candidates
suggested by the Employment Exchange,
for a vacant post, by interviewing them
after a competitive test, if necessary. The
actual appointment will, however, be
made by the competent authority."
1116 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

21. The important direction in the
above paragraph 6 which is relevant is to
the following effect:

"And the system of filling up
vacancies
under
Government
Departments should be adopted by
local bodies as already instructed in
G.O. No.3306/IX-156-47 dated June 2,
1948".

22. The next sentence in the
Government Order was that the Local
Bodies may also form a Committee
consisting of the Chairman or the
President, the Executive Officer of the
Secretary, as the case may be and the
principal administrative officer of the
department concerned. It is relevant to
note that the said Government Order was
issued on March,17,1952 and after the
said
Government
Order,
several
Government Orders have been issued and
an Act namely; The Uttar Pradesh Public
Services
(Reservation
for
Scheduled
Castes,
Scheduled
Tribes
&
Other
Backward Classes) Act, 1994 has been
enacted providing for reservation in posts
in a Local Authority which is being
followed by the Nagar Palika Parishad for
the selection in the posts under Nagar
Palika Parishad. There are Government
Orders and Rules regarding constitution
of
the
selection
committee
having
representatives from Reserved Category.
When the Government Order dated
17/3/1952 provides for system of filling
of
vacancies
under
Government
Department the same should be adopted
by the local bodies. It does not appeal to
reason that the Nagar Palika Parishad is
completely free to adopt its procedure for
carrying out the selection and recruitment.
It has been submitted by the learned
counsel for the respondents that the
driving test has been introduced in the
recruitment of drivers in the Government
Department and the selection committee
in the Government Department consists of
representative of the District Magistrate
and the candidate belonging to the
reserved category candidates, the question
need to be thoroughly considered as to
whether the local bodies are not obliged
to
constitute
selection
committee
accordingly.

23. We, however, hasten to add that
we are not expressing any concluded
opinion in the above regard since the
State Government has yet to take a
decision after considering the reply
submitted by the petitioner to the show
cause notice dated 25/7/2011. Present is
not a stage, where this Court may express
any concluded opinion on the aforesaid
issue. Suffice it to say, that the charges
which have been levelled against the
petitioner in the show cause notice cannot
be brushed aside without there being
thorough examination and deliberation in
the matter.

24. We, are thus of the view that the
show cause under Section 48 (2) of the
Act, 1916 for removal of the petitioner
cannot be quashed in this writ petition at
this stage.

25. The question which now needs
to be considered is as to whether while
issuing the show cause notice to the
petitioner under Section 48(2) of the Act,
the State Government was justified in
ceasing the financial and administrative
powers of the petitioner.

26. Learned counsel for the
petitioner has placed reliance on the Full
Bench judgment of this Court in Hafiz
3 All Sardar Javed Khan V. State of U.P. and others
1117
Ataullah Ansari (supra). The Full Bench
of this Court had an occasion to consider
the issues in paragraph 40. The issues
which were considered by the Full Bench
of this Court have been noted which is to
the following effect:

40. The division bench has referred
three questions. They are mentioned
under
the
heading
'QUESTIONS
REFERRED'. For convenience, we have
reformulated them into the following
points for determination and have added
preliminary objection of the respondent as
the first point.

(i) Whether the reference should be
sent back unanswered;

(ii) Can there be proceeding for
removal of a president under section 48(2)
of the Municipalities Act, without ceasing
his financial and administrative powers;

(iii) Whether any separate or specific
order is required under proviso to section
48(2) of the Municipalities Act for
ceasing
financial
and
administrative
power.

(iv) If the notice purported be given
under proviso to Section 48(2) of the
Municipalities Act does not comply with
it then what is the consequence;

(v) What are the condition precedent
(other than mentioned in the next point)
for ceasing financial and administrative
powers under proviso to section 48(2) of
the Municipalities Act;

(vi) Whether any opportunity is also
required to be afforded before ceasing
financial and administrative powers;

(vii) In case opportunity is required
to be afforded then what is its extent;"

27. The Full Bench in the case of
Hafizataullah Ansari (supra) laid down
following in paragraphs 59,60,61,79 and
84 which are quoted below:

"59. The president ceases to exercise
the financial and administrative powers as
soon as a show cause notice under section
48(2) satisfying the conditions of the
proviso to section 48(2) or a valid show
cause notice under proviso to section
48(2)of the Municipalities Act is issued.
The cessation of power is automatic: it is
so contemplated in the proviso itself.

60. Once, a valid notice under
proviso
to
section
48(2)
of
the
Municipalities Act is issued, then even if
it is not mentioned that the financial and
administrative powers of the president
have ceased, it does not mean that he can
still exercise them. The cessation of the
president's
power
is
automatic and
necessary consequence of issuance of the
valid
notice
complying
with
the
conditions under the proviso.

61. In view of above, it is not
necessary that order ceasing the right to
exercise financial and administrative
powers should be mentioned in the
separate order or in the show cause notice
itself but what is necessary is that the
notice should be valid; it should comply
with the conditions of the proviso to
section 48(2) of the Municipalities Act.

79. The notice that results in ceasing
the financial and administrative powers
under the proviso to section 48(2) of the
Municipalities Act is not a simple show
cause notice--it must contain the charges
1118 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
as well. It is only when the show cause
notice contains the charges that the
cessation
of
the
financial
and
administrative power takes place.

84. In our opinion, the cessation of
financial and administrative power can
take place only if the power under the
proviso
to
section
48(2)
of
the
Municipalities Act is rightly exercised. It
is rightly exercised only if at least the
following conditions are satisfied in the
notice/ order:

(i)
There
should
be
objective
satisfaction of the State government that:

The allegations do not appear to be
groundless; and

The president is prima facie guilty of
the ground that have to be indicated under
section 48(2) of the Municipalities Act.

(ii) The show cause notice should
contain the charges;

(iii) The show cause notice should
not only indicates the material on which
the reason to believe or objective
satisfaction is based, but the evidence by
which charges are to be proved should
also mentioned. However, in most of the
cases they might be the same and there
would not be any point in repeating
them."

28. Ultimately, the Full Bench in the
case of Hafizataullah Ansari (supra) in
paragraph 133 recorded its conclusion
which is quoted below:

"133. Our conclusions are as follows:

(a) There can be proceeding for
removal of president under section 48(2)
of the Municipalities Act without ceasing
his financial and administrative power
under its proviso;

(b) The following conditions must be
satisfied before cessation of financial and
administrative powers of a president of a
Municipality can take place:

(i)The explanation or point of view
or the version of the affected president
should be obtained regarding charges and
should be considered before recording
satisfaction and issuing notice/ order
under proviso to section 48(2) of the
Municipalities Act;

(ii) The State government should be
objectively satisfied on the basis of
relevant material that:

The allegations do not appear to be
groundless; and

The president is prima facie guilty of
any of the grounds under section 48(2) of
the Municipalities Act.

(iii)The show cause notice must
contain the charges against the president;

(iv)The show cause notice should
also indicate the material on which the
objective satisfaction for reason to believe
is based as well as the evidence by which
charges against the president are to be
proved. Though in most of the cases they
may be the same;

(c) It is not necessary to pass
separate order under proviso to section
48(2) of the Municipalities Act. It could
be included in the notice satisfying the
3 All Sardar Javed Khan V. State of U.P. and others
1119
other conditions under proviso to section
48(2). In fact it is not even necessary. It
comes into operation by the Statute itself
on issuance of a valid notice under
proviso
to
Section
48(2)
of
the
Municipalities Act.

(d) .......

(e) ..................

(f)............"

29. From the above pronouncement
made, it is clear that the cessation of
financial and administrative powers can
take place after fulfilment of the condition
and there should be objective satisfaction
of the State Government that allegations
do not appear to be groundless and the
President is prima-facie guilty of the
grounds as indicated in the show cause
notice issued under Section 48(2) of the
Act, 1916, that it should contain the
charges as well as the evidence by which
charges are to be proved.

30. Learned counsel for the
petitioner contended that there was no
occasion to cease the financial and
administrative powers of the petitioner
after more than one and a half year from
sending the report by the District
Magistrate when the State Government
did not take any action immediately. The
proviso to Section 48(2) as quoted above
indicate that the cessation of financial and
administrative powers follow when the
State Government has reasons to believe
that the allegations appear not to be
groundless and the President is primafacie guilty on any of the grounds. The
words "he shall, from the date of issuance
of the show cause notice containing
charges, cease to exercise, perform and
discharge the financial and administrative
powers, functions and duties of the
President until he is exonerated of the
charges................. clearly spells out the
above intent."

31. As noted above, the Full Bench
of this Court in Hafiz Ataullah Ansari
(Supra) has held that there is no necessity
of issuing a separate order for ceasing the
financial and administrative powers of the
petitioner and if the State Government is
satisfied that the charges do not appear to
be ground less and the President is primafacie guilty of any of the charges, the
cessation of financial and administrative
power takes place automatically.

32. In the present case, when the
State
Government
has
recorded
its
objective satisfaction that the charges are
not groundless and the President is primafacie guilty of the charges, it cannot be
said that the cessation of financial and
administrative powers of the petitioner is
illegal merely because more than one and
a half year has elapsed from the
submission of the report by the District
Magistrate.
The
consequence
as
contemplated under Section 48(2) of the
Act, 1916 shall ensue as and when the
power is exercised under Section 48(2) of
the Act, 1916 and the mere fact that
certain time has elapsed and the State
Government did not promptly take action
in any manner vitiates the proceeding in
exercise of power under Section 48(2) of
the Act, 1916.

33. We are, therefore, of the
considered opinion that the financial and
administrative powers of the petitioner
have rightly been ceased consequent to
issuance of notice under Section 48(2) of
the Act, 1916. None of the submissions
1120 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
made by the learned counsel for the
petitioner makes out any ground for
quashing
the
order
of
the
State
Government dated 25/7/2011.

34. We, however, observe that the
State Government while passing the final
order under Section 48 (2) of the Act,
shall not be influenced by any of the
observations made by us in this order
which observations have been made only
for examining the issue of issuing notice
under Section 48(2) of the Act, 1916 and
cessation of financial and administrative
powers.

35. The writ petition is dismissed
subject to observations as made above.

36. No order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.09.2011

BEFORE
THE HON'BLE ARUN TANDON,J.

Civil Misc. Writ Petition No. 51649 of 2011

C/M
Seth
Basudeo
Sahai
Inter
College,Kannauj

 ...Petitioner
Versus
State of U.P. and others

 ...Respondents

Counsel for the Petitioner:
Sri K. Shahi

Counsel for the Respondents:
Sri Mohammad Shariq
C.S.C

U.P. Intermediate Education Act 1921chapter III Regulation 101 to 106-power
of
DIOS
to
appointment
on
compassionate
ground-R-4recommended
for
appointment
on
compassionate ground by the regional
committee-DIOS
to
ensure
the
appointment
and
functioning
of
compassionate
appointee
passed
impugned
direction-challenged
by
management-held-although
DIOS
can
not visit in institution to ensure joining
of such appointee-but in furtherance for
enforcement
of
lawful
order-any
interference by writ court amounts to
perpetuating
illegal
action
of
management-petition dismissed.

Held: Para 10

So far as the insistence of the District
Inspector of Schools to ensure joining of
the
compassionate
appointee
is
concerned,
this
Court
is
of
the
considered opinion that the District
Inspector of Schools may not have acted
strictly in accordance with law even then
the action taken is in furtherance of
interest of justice and for enforcing
lawful orders. Any interference with the
order of the District Inspector of Schools
will amount to perpetuating an illegal
action of the management. Power under
Article 226 of the Constitution of India is
not to be exercised in favour of the
Committee of Management, which want
to act illegally and insists that other
courses open to law should have been
adopted with sole purpose to delay the
joining
of
the
lawfully
appointed
candidate.
Case law discussed:
(2003) SCC 669; AIR 2008 SC 1272; AIR 1977
SC 1720; (1998) 2 UPLBEC 1310

(Delivered by Hon'ble Arun Tandon,J.)

1. Petitioner before this Court is the
Committee of Management of Seth
Basudeo Sahai Inter College, Kannauj.
The
Committee
of
Management
is
aggrieved by the order of the District
Inspector of Schools, Kannauj dated
05.08.2011.