# C/M & another v. D.I.O.S., Basti & others

- **Citation:** (1999) 3 ILRA 136
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-02-26
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-another-v-d-i-o-s-basti-others-39362
- **Pages:** 5

## Text

136 THE INDIAN LAW REPORTS [1999
9.
Apart from the above this Court is seized of the matter in
exercise of its jurisdiction under Article 226, Constitution of India is
fully entitled to take notice of the illegality committed by the
Government Officer in the case. It cannot be ignored on
technicalities.

10.
The impugned order dated 26.02.1999 (Annexure-6 to the
Writ Petition) passed by DIOS, Basti is set aside. Respondents are
directed to restore the position which existed immediately on the day
of passing of the order dated 17.10.1998.

11.
Writ petition stands allowed. There will be no order as to
costs.
12.
Registry is directed to send a certified copy of this judgment to
the Advocate General for information.

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1999
------
C/M & another
 Vs.
D.I.O.S., Basti &
others
------
A.K. Yog , J.
1999
------
July, 5
3 All.] ALLAHABAD SERIES
137
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By the Court

1.
The petitioner's service was dispensed with in exercise of
Rule 56 of Financial hand Book Vol.-II Part-II by an order dated 20th
July, 1990 containing in Annexure-I to the writ petition. Mr. A.R.
Dubey, learned counsel for the petitioner has assailed the said order
on the ground that by reason of the Govt. order dated 21st December,
1989, such dispensation of service could be made under the said rule
only in accordance with the procedure laid down therein. According
to him, it could be done only after obtaining prior approval of the
Commissioner. In the present case, according to him no such
approval has been obtained.

2.
Mr. P.K. Singhal appearing with Mr. Murlidhar learned
counsel for the respondents oppose Mr. Dubey. According to Mr.
Murlidhar, there is nothing on record to show that the prior approval
of the Commissioner was obtained. But however, according to him,
the Government Order is not mandatory and therefore, no
observance thereof cannot vitiate the impugned order. He further
contends that because of the time limit of 25 days for completion of
the process and absence of approval of the Commissioner within the
stipulated time period shall be deemed to be the grant of the
approval. He further contends that consideration is dependent on the
subjective satisfaction of the appointing authority and to the
suitability of the employee to be retained in service. Here the
appointing authority having found it fit to dispense with the service,
the Court should not interfere in exercise of writ jurisdiction since
the petitioner has not alleged malafide against the appointing
authority. Therefore, this writ petition should be dismissed.

3.
I have heard both the counsel at length.
1999
------
Attar Singh
 Vs.
Ex.Officer,
Municipal Board
Kosi Kalan,
District Mathura
& others
------
D.K. Seth , J.
138 THE INDIAN LAW REPORTS [1999

4.
The Government Order dated 21st December, 1989 was issued
by the Government in respect of scrutinising of persons for
dispensing with service after attainment of 58 years but before
attainment of superannuation in terms of Rule 56 of the Financial
Hand Book. It provides that in respect of persons outside the
centralised service of the Municipal Authorities may be processed
in the manner prescribed therein. Admittedly, no such process as
prescribed in the Government dated 21st December, 1989 relating to
obtaining of approval of the Commissioner or any other Higher
Authority is provided in respect of the application of Rule 56 of the
Financial Hand Book relating to a government servant. Such process
has been prescribed specifically for the Municipal Authorities. There
is , admittedly, a difference in the characteristic and status of the
appointing authority between the appointing authority of a
Government Servant whereas the appointing authority in a
Municipal office is normally the Chairman who is an elected
representative of the people and not a government servant. There is a
difference of the characteristics in the matter of accountability in
between a government servant and the elected representative heading
the Municipal Authority. Therefore , the Government thought it fit
that there should be some safeguard or safety valve in respect of
exercise of Rule 56 of the Financial Hand Book in relation to the
service in the Municipal Office of the persons who are outside the
purview of the centralised service. While Rule 56 is being attracted
to such persons, the Government in its wisdom thought it fit to
provide a safety valve and therefore, it was provided that such action
can be taken against a municipal servant outside the purview of
centralised service only after obtaining approval of the
Commissioner. It has been provided that there should be a Screening
Committee headed by the appointing authority being the Chairman
and two of the members who had been empowered to recommend
the necessity of despensing of service after scrutinising the service
record. It is only an authority given for recommendation. The final
order can be passed by the Chairman/Appointing Authority only
after obtaining the approval of the Commissioner. It is not contended
by Mr. Murlidhar that the Government Order does not have any legal
force. But he contends that it is only an administrative instruction in
the from of executive advice and as such, it is not mandatory and
binding. But the said contention does not find any support from the
text of the Government Order which clearly indicates the purpose,
object and intention for issuing such Government Order. The
Government order has been issued within the power conferred on the
1999
------
Attar Singh
 Vs.
Ex.Officer,
Municipal Board
Kosi Kalan,
District Mathura
& others
------
D.K. Seth , J.
3 All.] ALLAHABAD SERIES
139
Government in respect of persons employed in non-centralised
service under the Municipal Authorities. If such an order is issued
within the jurisdiction, scope and ambit of the power conferred on
the executive in respect of a particular purpose with particular object
providing a safeguard alongwith the procedure to be followed in that
event it cannot be said that is only directory. When it has provided
that a Screening Committee has to be formed with the persons
mentioned in the said order and a particular procedure is prescribed
in that event, it has to be followed as it has been provided. The non
obtaining of approval cannot be said to be a formality or a technical
process. In fact the intention behind the procedure prescribed in
paragraph 3 of the said Government Order was to provide a
safeguard or safety valve. When in specifically provides that
dispensation of service under this rule could be done only after
obtaining approval from the Commissioner on the recommendation
of the screening committee in that event it cannot be interpreted to
mean anything otherwise and non-observance thereof said to be a
technical fault to the extent of irregularity. In fact is is the
jurisdiction that is conferred on the Chairman to dispense with the
service
without
following
other
procedure
even
before
superannuation only in an exceptional circumstances. Such action is
a discretionary one and as such a safeguard was felt necessary so that
the discretion may not be absolute one and is scrutinised. This
question of approval is not an embargo but is a control exercised by
the Government. This is only for the purpose of providing checks
and balance or proper exercise of the power conferred by Rule 56
which is otherwise an extra ordinary power to be exercised in an
extra ordinary situation for which an extra ordinary safeguard is
provided. In such circumstances, it is not possible for me to agree
with the contention of Mr. Murlidhar.

5.
Thus in the absence of approval of the Commissioner, the
dispensation of service of the petitioner by the impugned order
contained in Annexure-I to the writ petitioner cannot be sustained
and is liable to be quashed and is accordingly, quashed ltd. A writ
certiorari do accordingly issue.

6.
Admittedly, the petitioner was 53 years old when the order
was passed. The petitioner must have attained the age of
superannuation. Mr. Murlidhar therefore, submits that in such
circumstance, the petitioner would be entitled only to back wages or
arrears of salary as the case may be. He contends that the petitioner
did not work therefore, the Court should consider the question of
1999
------
Attar Singh
 Vs.
Ex.Officer,
Municipal Board
Kosi Kalan,
District Mathura
& others
------
D.K. Seth , J.
140 THE INDIAN LAW REPORTS [1999
payment of salary to the extent of 50% since the amount would be
paid to the petitioner in a lumpsum.
7.
Mr. A.R. Dubey on the other contends that the petitioner has
suffered the agony of dispensing with service and has suffered
enormously in respect of financial stringency on account of non
payment of salary continuously for a long period and the social
humiliation on account of such dispensation of service for which he
claims compensation for the injury suffered by the petitioner
alongwith interest payable on the salary due.

8.
On this question both of them argued at length. After hearing
both the counsel and balancing the situation, it seem that justice
would be served if the petitioner is awarded full back wages for the
period till the date of superannuation alongwith all other service
benefits without any compensation or interest as the case may be.

9.
In the circumstances, it is hereby declared that the petitioner
shall be deemed to be in service and shall retire on attainment of
superannuation with all service benefits. The respondents shall
ensure payment of back wages as well as retirement benefits as
admissible in law to the petitioner as early as possible preferably
within a period of six months from the date of receipt of a certified
copy of this order. Let writ of mandamus do accordingly issue.

10.
The writ petitioner is, therefore, disposed of. However, there
will be no order as to costs.

11.
Let a certified copy of this order be given to the learned
counsel for the petitioner on payment of usual charges.

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1999
------
Attar Singh
 Vs.
Ex.Officer,
Municipal Board
Kosi Kalan,
District Mathura
& others
------
D.K. Seth , J.

1999
------
July, 7