# Rajesh Kumar Yadav v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 393
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-06
- **Case number:** Writ A No. 13605 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-yadav-v-state-of-u-p-ors-51817
- **Pages:** 11

## Headnote

Civil Law - U.P. Municipalities Act, 1916 -
Section 34 - Constitution of India,1950 -
Part IX-A - District Magistrate's Authority
- Local Self-Governance - Service Matters
- Medical Leave - Salary Disbursement -
Principles of Natural Justice
The petitioner, Rajesh Kumar Yadav, a Zonal
Sanitary
Officer,
challenged
the
District
Magistrate, Hapur's order dated 06.04.2022,
stopping his salary for March and April 2022,
alleging unauthorized absence during medical
leave for a spinal condition and cataract
surgery. The petitioner sought quashing of the
order, release of withheld salary, and forwarding
of his medical leave applications to the
Commissioner, Meerut Division. The District
Magistrate
claimed
general
administrative
oversight, citing government orders and the
U.P. Public Health and Epidemic Diseases
Control Act, 2020. Held: (1) The petition was
allowed with costs, and the District Magistrate's
order dated 06.04.2022 was quashed as ultra
vires.
(2)
The
District
Magistrate
lacked
jurisdiction under Section 34 of the U.P.
Municipalities Act, 1916, to interfere in the
Nagar Palika Parishad's service matters, as such
powers are limited to prohibiting resolutions
causing public obstruction, injury, or danger to
life, health, safety, or public order. (3) The
394 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner's absence was supported by medical
evidence,
negating
unauthorized
absence
claims. (4) The District Magistrate's actions
violated principles of natural justice by failing to
consider the petitioner's medical condition. (5)
The autonomy of local self-governance bodies
under Part IX-A of the Constitution was
emphasized, restricting executive interference.
(6) A mandamus was issued to the Executive
Officer, Nagar Palika Parishad, Hapur, to release
the petitioner's withheld salary with 6% interest
and forward medical leave papers to the
Commissioner, Meerut Division, for sanction
within 15 days.

List of Cases cited:

## Text

4 All. Rajesh Kumar Yadav Vs. State of U.P. & Ors.
393
Distribution
Corporation
are
hereby
quashed. The respondents would, of
course, be at liberty to proceed against the
petitioner afresh from the stage of issue of
the charge sheet against him, strictly in the
manner indicated in this judgment and the
law. But, before going ahead with the
proceedings
of
inquiry
against
the
petitioner,
the
respondents
will
immediately
get
a
Medical
Board
constituted by the Chief Medical Officer of
the district, wherever the petitioner is
currently staying. The members of the
Medical Board shall proceed to the
petitioner's residence and ascertain his
medical condition, particularly, if he is
paralysed, non-ambulatory and unable to
communicate. If that be his medical
condition, fresh proceedings of inquiry will
not be taken against him, until the
petitioner is in a medically certified fit
condition to understand the consequences
of the charges against him and face the
inquiry. If, however, the petitioner is found
medically fit, the Medical Board will
examine all his certificates and medical
history, and inquiry proceedings, if elected
to be pursued, would be resumed as above
directed, taking into account the opinion
about his medical condition during the
relevant period of time. In the event the
respondents do not elect to resume fresh
proceedings against the petitioner, or his
subsisting medical condition does not
permit the resumption of such proceedings,
in either case the consequences of quashing
of the orders impugned shall follow. It is
clarified
that
if
the
petitioner
be
irredeemably indisposed, he would be dealt
with according to the relevant service rules
as to medical leave, medically incurred
disability by employees, as the case may
be.

26. There shall be no order as to costs.
----------
(2024) 4 ILRA 393
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 13605 of 2023

Rajesh Kumar Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajpal Singh

Counsel for the Respondents:
C.S.C.

Civil Law - U.P. Municipalities Act, 1916 -
Section 34 - Constitution of India,1950 -
Part IX-A - District Magistrate's Authority
- Local Self-Governance - Service Matters
- Medical Leave - Salary Disbursement -
Principles of Natural Justice
The petitioner, Rajesh Kumar Yadav, a Zonal
Sanitary
Officer,
challenged
the
District
Magistrate, Hapur's order dated 06.04.2022,
stopping his salary for March and April 2022,
alleging unauthorized absence during medical
leave for a spinal condition and cataract
surgery. The petitioner sought quashing of the
order, release of withheld salary, and forwarding
of his medical leave applications to the
Commissioner, Meerut Division. The District
Magistrate
claimed
general
administrative
oversight, citing government orders and the
U.P. Public Health and Epidemic Diseases
Control Act, 2020. Held: (1) The petition was
allowed with costs, and the District Magistrate's
order dated 06.04.2022 was quashed as ultra
vires.
(2)
The
District
Magistrate
lacked
jurisdiction under Section 34 of the U.P.
Municipalities Act, 1916, to interfere in the
Nagar Palika Parishad's service matters, as such
powers are limited to prohibiting resolutions
causing public obstruction, injury, or danger to
life, health, safety, or public order. (3) The
394 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner's absence was supported by medical
evidence,
negating
unauthorized
absence
claims. (4) The District Magistrate's actions
violated principles of natural justice by failing to
consider the petitioner's medical condition. (5)
The autonomy of local self-governance bodies
under Part IX-A of the Constitution was
emphasized, restricting executive interference.
(6) A mandamus was issued to the Executive
Officer, Nagar Palika Parishad, Hapur, to release
the petitioner's withheld salary with 6% interest
and forward medical leave papers to the
Commissioner, Meerut Division, for sanction
within 15 days.

List of Cases cited:

1. Vimlesh Lal Vs St. of U.P. & ors.,
2023:AHC:242348;

2. President, Nagar Palika Parishad, Sultanpur,
Babita Jaiswal Vs St. of U.P., AIR OnLine 2019
All 2407;

3. Subodh Kumar Gupta & ors. Vs St. of U.P.
through Principal Secretary & ors., 2016 SCC
OnLine All 1358.

(Delivered by Hon'ble J.J. Munir, J.)

1. The District Magistrate of the
district is not the Master of all that he/she
surveys. But, this case, in the company of a
variety of contemporary experience, tends
to show that the District Magistrate acts
that way. In a government, functioning
under the Constitution and the laws, there
is a division and consequential limitation
on authority, which in this case seems not
to be there on the functioning of the
District Magistrate of Hapur. The District
Magistrate, seems to have acted in the way
he has done and a successor in office,
despite being called upon to justify the
exercise of an ultra vires authority, has
attempted
to
support
it
because,
conventionally not only the ordinary
citizen, but independent officers of other
departments of the Government or even
independent
bodies
of
local
selfgovernance established by the Constitution,
pay habitual obedience to the District
Magistrate. This phenomena is a surviving
relic of the colonial era when the District
Magistrate and the Collector was the
Government's representative at the district
headquarters. This ought not to be so any
longer.

2. The petitioner, Rajesh Kumar
Yadav, is a Zonal Sanitary Officer,
currently posted at the Nagar Nigam,
Bareilly. He was earlier posted at the Nagar
Palika Parishad, Hapur as the Chief
Sanitary
and
Food
Inspector
until
27.07.2022. While posted at Hapur on the
4th of May, 2022, he was at his residence.
He experienced dizziness while using the
restroom and collapsed. He was taken to
Dr. Jeevottam Narang and the doctor
advised an MRI for his spine. The MRI was
done and a perusal of the MRI report led
the doctor to advise the petitioner to take
bed rest. The MRI report dated 04.05.2022
from the Dev Nandini Imaging Centre
records the following impressions:

"IMPRESSION

• Broad-based posterior disc
bulge at L4-L5 level causing Indentation of
the thecal sac bilateral neural foraminal
narrowing.

• Mild broad-based disc bulge at
L1-L2 and L5-S1 levels without significant
neural compression."

3. The petitioner asserts that he was
next examined at a higher centre, to wit, the
Indian Spinal Injuries Centre, Vasant Kunj,
New Delhi and advised bed rest. In this
regard, a letter dated 09.06.2022 was
addressed by the petitioner to the Executive
Officer, Nagar Palika Parishad Hapur,
District Hapur (for short, 'the Nagar
4 All. Rajesh Kumar Yadav Vs. State of U.P. & Ors.
395
Palika), with a request to sanction medical
leave for him during the period 09.06.2022
to 23.06.2022. During this period, the
petitioner underwent medical treatment and
sent applications to the Executive Officer
of the Nagar Palika, seeking an extension
of his leave up to 26.07.2022. A copy of
the application dated 12.07.2022 sent by
speed post as well as email to the Executive
Officer are on record.

4. On the 27the of July, 2022, the
petitioner was once again examined by Dr.
Aparna Gupta of the Indian Spinal Injuries
Centre, Vasant Kunj, New Delhi, who
certified him fit. He was advised to take
regular and proper treatment. The petitioner
went to his office at the Nagar Palika and
submitted a joining report dated 27.07.2022
addressed to the Executive Officer.

5. On the 30th of June, 2022, the
Government issued a transfer list for
employees, who are members of the Uttar
Pradesh
Palika
(Centralized)
Health
Service, of which the petitioner is a
member. The petitioner's name was shown
at serial No.4. He was transferred from the
Nagar Palika Parishad, Hapur to the Nagar
Nigam,
Bareilly.
The
petitioner
was
relieved on 30.06.2022 to join his new
posting at Bareilly. On the 29th of July,
2022, the petitioner joined the office of the
Nagar Nigam, Bareilly, as a Zonal Sanitary
Officer, a promotion posting. The petitioner
then addressed a memo dated 12.09.2022 to
the Executive Officer of the Nagar Palika,
Hapur, seeking sanction of medical leave
for the period 1st March, 2022 to 10th
May, 2022, so that his salary for the
relevant period could be drawn. The
petitioner says that he personally met the
Executive Officer of the Nagar Palika and
requested him to forward all requisite
papers to the Commissioner of the Division
for approval of his medical leave. The
Executive Officer is said to have extended
assurance in this regard to the petitioner
orally.

6. On the 3rd of November, 2022, the
petitioner made a representation to the
Executive Officer of the Nagar Palika,
requesting him to send all requisite papers
to
the
Divisional
Commissioner
for
approval of his medical leave, a copy
whereof was addressed to the District
Magistrate, Hapur, whom the petitioner
himself calls a higher authority. The
petitioner, while posted at the Nagar Palika,
on the 11th of March, 2022 was doing
some work on a computer, when he
experienced sudden pain in his eyes and his
vision got blurred. It was then that on 11th
of March 2022, he was rushed to the Eye
Hospital, Meerut, where the doctor advised
him an eye surgery. It was performed on
14th of March, 2022. The petitioner
informed the Executive Officer of the
Nagar Palika in this regard. A copy of the
petitioner's application dated 14.03.2022,
addressed to the Executive Officer of the
Nagar Palika with a copy endorsed to the
Chairman, seeking sanction of medical
leave on account of the eye surgery from
14.03.2022 to 19.03.2022 is on record. It
shows that the petitioner underwent a
surgical procedure at the Roop Netralaya,
Meerut. Later on, through an application of
6th April, 2022, addressed to the Executive
Officer of the Nagar Palika, the petitioner
sought extension of medical leave until
14th April, 2022. There are medical
documents
annexed
to
these
two
applications. In fact, the second one, seems
to show that the petitioner underwent a
surgery for his cataract in the right eye and
advised rest for a month from 14.03.2022
to 14.04.2022. A medical certificate in this
regard dated 15.04.2022 issued by Dr.
396 INDIAN LAW REPORTS ALLAHABAD SERIES
Roop of Acura Vision Clinics, Meerut is on
record at Page 67 of the paper-book.

7. On the 15th of April, 2022, the
petitioner was declared fit to join his duties
by the Eye Hospital, where he was treated.
On the 16th of April, 2022, the petitioner
moved an application to the Executive
Officer for sanction of medical leave
from 14.03.2022 to 15.04.2022. This
leave was sanctioned to the petitioner in
terms of a letter of the Chairman of the
Nagar Palika dated 14.04.2022 and
forwarded to the Executive Officer to
take follow-up steps.

8. On the 6th of April, 2022, while
the petitioner was away on medical leave,
the District Magistrate, Hapur, visited the
office of the Nagar Palika and issued a
letter dated 06.04.2022 saying that the
petitioner was absent. It was also said
that there was no information about his
absence from duty available with the
Nagar Palika. A show cause notice was
addressed by the District Magistrate
directly to the petitioner, an employee of
the Nagar Palika, where he was asked, on
account of his unauthorized absence, to
show cause within three days why for his
act in neglecting government work,
appropriate action be not recommended
against him to the Department of Urban
Development. Attached to this show
cause notice, which is on record as
Annexure No.13, is a report by the
District
Magistrate,
also
dated
06.04.2022, which shows that he inspected
the Establishment Counter, the Water
Works
Department
and
the
Health
Department of the Nagar Palika. He
undertook an inspection of all these
Departments, as if he were the supervising
authority of the Nagar Palika. This show
cause notice and the report was issued/
drawn up by an officer, going by the name
Anuj Singh, the then incumbent District
Magistrate of Hapur. This inspection report
dated 06.04.2022 carries an order by the
District Magistrate to the effect that the
petitioner's salary shall not be drawn. It is
this direction by the District Magistrate,
carried in the inspection report together
with the show cause notice, that has
impelled the petitioner to move this Court
through the present writ petition under
Article 226 of the Constitution.

9. The petitioner has prayed that the
inspection report of the District Magistrate,
Hapur dated 06.04.2022 be quashed, by
which this Court understands that the
petitioner means to seek quashing of that
part of the report, by which the drawing
and disbursement of his salary has been
stopped by the District Magistrate by a
direction to that effect issued to the
Executive Officer of the Nagar Palika.
The petitioner has also prayed that a
mandamus be issued to the respondents to
release the petitioner's salary for the
month of March and April, 2022. A
further direction has been sought to the
Executive Officer of the Nagar Palika to
forward the petitioner's medical leave
papers to the Commissioner, Meerut
Division, Meerut for the sanction of his
leave.

10. Heard Mr. Rajpal Singh, learned
Counsel for the petitioner and Mr.
Girijesh
Kumar
Tripathi,
learned
Additional
Chief
Standing
Counsel
appearing
on behalf
of
the
Staterespondents, to wit, respondent Nos. 1, 2,
3 and 4.

11. No notice was issued to the Nagar
Palika Parishad, Hapur in this case, because
the action that is challenged, including the
4 All. Rajesh Kumar Yadav Vs. State of U.P. & Ors.
397
impugned order, is not one made by the
Nagar Palika, but the District Magistrate,
Hapur.

12. This Court must say at once that
the petitioner by his pleadings in the writ
petition blamed the District Magistrate for
violating the principles of natural justice, in
ordering the stoppage of his salary as also
unfair action. It is also one of the objections
that the District Magistrate inspected the
Nagar Palika on the 6th of April, 2022, and,
therefore, there was no occasion for him to
order non-disbursement of the petitioner's
salary for the month of March, 2022. The
petitioner has said that there were a host of
his ailments that led him to apply for
medical leave, which on account of not
being forwarded to the Commissioner of
the Division, the competent authority,
could not be sanctioned. He has, in short,
said that there was no unauthorized absence
on his part, but compelling medical and
health issues, that kept him away from
work.

13. Interestingly, the petitioner too
has thought that the District Magistrate had
jurisdiction to walk into the Nagar Palika's
establishment, undertake a wholesome
inspection of different Departments of
theirs and pass orders, affecting service
interest of employees of the Nagar Palika.
Even in his grievance, the petitioner did not
think that the District Magistrate was
nobody to do that and he was not the
petitioner's employer. When this question
was put by this Court to the learned
Counsel for the petitioner, if the District
Magistrate would at all have jurisdiction to
pass orders in relation to a service matter of
an employee of the Nagar Palika, he
answered in the negative. This Court then
called upon the learned Additional Chief
Standing Counsel to disclose his stand. The
learned Additional Chief Standing Counsel
attempted to justify the District Magistrate's
action, whereupon this Court called upon
the District Magistrate to justify his
jurisdiction in passing the order impugned,
stopping the petitioner's salary, including
doing an inspection of the Nagar Palika
etc., by his personal affidavit. This order
was passed on the 18th of August, 2023.
The District Magistrate, Hapur, now a
changed incumbent, Ms. Prerna Sharma,
filed a personal affidavit dated 22nd of
August, 2023.

14. Sadly, in the affidavit filed by the
incumbent
District
Magistrate,
who
responded for her predecessor, not a
solitary provision of the law, that is to say,
the statute or the rules framed under the
U.P. Municipalities Act, 1916 (for short,
'the Act of 1916'), or some other law was
cited, to justify the District Magistrate's
jurisdiction in intermeddling with the
affairs of the Nagar Palika and passing
orders affecting service interest of the
Palika
employees.
What
the
District
Magistrate has said, makes this Court think
that it is her belief that the Government and
all their Departments function dehors the
laws and by the authority of Government
Orders or policy directions. The relevant
part of the District Magistrate's affidavit, in
justification
of
the
jurisdiction
to
intermeddle in the service matters of
employees of the Nagar Palika and pass an
order of the kind that is impugned, reads:

"6. That for the purpose of
redressal of the grievance of the public at
large the State Government has initiated
IGRS portal. For effective and quality
disposal of the complaints received from
the public at large the State Government
directs several administrative offices of the
district and for smooth functioning of the
398 INDIAN LAW REPORTS ALLAHABAD SERIES
offices at district level, District Magistrate
and Divisional Commissioner have been
held responsible to review their works,
planning, projects etc. of the offices at
district level vide Government Order
No.540/Chautish-Lo.Sh.-05/2021
dated
20.10.2021. For kind perusal of this
Hon'ble Court, Copy of the Government
Order dated 20.10.2021 is being filed
herewith and marked as Annexure No.1 to
this affidavit.

7. That the Chief Secretary,
Government of Uttar Pradesh, Karmik
Anubhag-1 has issued office memorandum
No.4/2022/
19 Samanya/
Ka-42022/303/2020
dated
12.02.2022
for
determination of work arrangement in
Government offices during Covid-19 with
direction that all the offices will function
cent percent w.e.f. 14.02.2022. However,
for the purpose of checking infection it was
also directed to avoid crowding and all the
office
staff
were
expected
to
use
sanitization, face mask, maintain social
distance and protective measures. For the
kind perusal of this Hon'ble Court copy of
the aforesaid office memorandum dated
12.02.2022 is being filed herewith and
marked as Annexure No.2 to this affidavit.

8. That under the Uttar Pradesh
Public Health and Epidemic Diseases
Control Act, 2020 (hereinafter referred to
as Act, 2020' for short) a committee has
been constituted in the name of District
Epidemic Control Authority to be headed
by the District Magistrate. Under the
aforesaid Act, 2020 the District Magistrate
has been conferred following powers:

(a) महामारी के रोकर्ाम एविं सनयिंत्रण
के सलए सजला में सवसभन्न सवभाग के सक्रयाकलापोिं
के सार् समिय स्र्ासपत करना,

(b)
यह
सुसनसश्चत
करना
सक
सामुदासयक कायथ के सलए आवष्यक सेवायें
सुगमतापूवथक तर्ा पयाथप्त रूप में की जाय,

(c) समस्त सरकारी या राजय
प्रासिकरण
के
आदेर्ोिं
को
सुगमतापूवथक
सक्रयाखित सकया जाय।

For the kind perusal of this
Hon'ble Court copy of the relevant extract
of the Act, 2020 is being filed herewith and
marked as Annexure No.3 to this affidavit.

That for the welfare of the public
at large, the District Magistrate has been
nominated chairman of the several district
committees constituted under different
schemes floated by the State Government
and the Central Government in view of
financial aid to be extended by the
Government for implementation of the
schemes. In this regard, for the purpose of
removing certain difficulties, the State
Government has issued letter No.677/Nau9- 16-193Ja/13 dated 18.05.2016. By the
said
Government
Order
the District
Magistrate has been given power to give
administrative and financial approval and
to
ensure
the
quality
of
the
development works at district level. For
kind perusal of this Hon'ble Court, copy of
the Government order dated 18.05.2016 is
being
filed
herewith and
marked
as
Annexure No.4 to this affidavit.

9. That from the perusal of above
facts and details stated hereinabove it is
apparent that the District Magistrate has
been
conferred
power from
different
sources to implement and make successful
the schemes of the State Government as
well as Central Government floated in
public interest at large."
(emphasis by Court)

15. There is not a word said by the
District Magistrate in her affidavit about
the source of her authority flowing from
any statute or statutory rule to interfere
with the affairs of the Nagar Palika and
issue directions in relation to the service
interests of the servants and officers of the
4 All. Rajesh Kumar Yadav Vs. State of U.P. & Ors.
399
Nagar Palika. After a wholesome reference
to the steps taken by the Government for
redressal of public grievances and smooth
functioning of government offices at the
district level, all that the District Magistrate
has to say is that the District Magistrate is
the chargé d'affaires at the District
Headquarters and the Commissioner at the
Divisional Headquarters, who can interfere
with anything and everything; with any
establishment,
whether
independent,
autonomous or elected. There is then a
reference to some directions by the Chief
Secretary relating to control of the Covid19 pandemic, which is absolutely an
irrelevant reference. There is then a vague
and useless assertion in Paragraph No.9 of
the District Magistrate's personal affidavit,
which says that the District Magistrate has
been conferred power from different
sources to implement and make successful
government schemes. None of these answer
the Court's specific question put to the
District Magistrate, to wit, the source of the
District Magistrate's authority to interfere
in the functioning of an autonomous and
elected local body, and, that too service
matters of the Nagar Palika's employees.

16. This Court is of opinion that the
District Magistrate has very limited say in
the matters of a Nagar Palika governed by
the Act of 1916. Section 34 is the only
source of power that the District Magistrate
has to interfere with the decisions of a
Nagar Palika Parishad. Section 34 reads:

"34.
Power
of
the
State
Government or the Prescribed Authority
or the District Magistrate to prohibit
execution
or
further
execution
of
resolution or order of Municipality. - (1)
The Prescribed Authority may, by order in
writing, prohibit the execution or further
execution of a resolution or order passed or
made under this or any other enactment by
a Municipality or a committee of a
Municipality or a Joint Committee or any
officer or servant of a Municipality or of a
Joint Committee if in its opinion such
resolution or order is of a nature to cause or
tend to cause obstruction, annoyance or
injury to the public or to any class or body
of persons lawfully employed and may
prohibit the doing or continuance by any
person of any act in pursuance for or under
cover of such resolution or order.

(1A) The District Magistrate
may, within the limits of his district, by
order in writing, prohibit the execution or
further execution of a resolution or order
passed or made under this or any other
enactment
by
a
Municipality
or
a
committee of a Municipality or a Joint
Committee or any officer or servant of a
Municipality or of a Joint Committee if in
his opinion such resolution or order is of a
nature to cause or tend to cause danger to
human life, health or safety, or a riot or
affray, and may prohibit the doing or
continuance by any person of any act, in
pursuance of or under cover of such
resolution or order.

(1B) the State Government may,
on its own motion or on report or complaint
received by order prohibit the execution or
further execution of a resolution or order
passed or made under this or any other
enactment
by
a
Municipality
or
a
committee of a Municipality or a Joint
Committee or any officer or servant of a
Municipality or of a Joint Committee, if in
its opinion such resolution or order is
prejudicial to the public interest, or has
been passed or made in abuse of powers or
in flagrant breach of any provision of any
law for the time being in force, and may
prohibit the doing or continuance by any
person of any act in pursuance of or under
cover of such resolution or order.
400 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) Where an order is made under
sub-section (1) or (1-A), a copy thereof
with a statement of the reasons for making
it, shall forthwith be forwarded by the
Prescribed
Authority
or
the
District
Magistrate
through
the
Prescribed
Authority, as the case may be, to the State
Government which may thereupon, if it
thinks fit, rescind or modify the order.

(3) [* * *]

(4) Where the execution or
further execution of a resolution or order is
prohibited by an order made under subsection (1), (1-A) or (1-B) and continuing
in force, it shall be the duty of the
Municipality, if so required by the authority
making the order under the said subsections to take any action which it would
have been entitled to take, if the resolution
or order had never been made or passed,
and which is necessary for preventing any
person from doing or continuing to do
anything under cover of the resolution or
order of which the further execution is
prohibited."

17. I had occasion to consider this
issue in Vimlesh Lal v. State of U.P. and
others, 2023:AHC:242348, where I held:

"16. The District Magistrate's
power is traceable to sub-Section (1-A) of
Section 34 alone, which authorizes him to
prohibit the execution of a resolution
passed by a Municipality or a Committee or
an Officer etc., if he is of opinion that the
resolution or the order is of a nature that
may cause or tend to cause danger to
human life, health or safety, or a riot or
affray. That is the limited authority of the
District Magistrate to interfere in the affairs
of a Nagar Palika or a Municipality, as it
was formerly called. There is no other
power vested in the District Magistrate to
interfere with any decision made by the
Nagar Palika Board, its Chairman or the
Executive Officer or a Committee or an
Officer thereof. Rather, this Court is
inclined to think that the autonomy and
independence of a Nagar Palika is far more
strenghtened and requires to be more
zealously protected in view of inclusion of
Part IX-A in the Constitution by the
Constitution (Seventy-fourth Amendment)
Act, 1992. This amendment elevates local
bodies to a constitutional status and
attempts to effect decentralization of
democratic
power.
It
provides
a
constitutional bulwark to strengthen local
self-government, more answerable to its
eloctorate than a supervising agent of the
State Government. Part IX-A of the
Constitution and all its provisions would
require Section 34 of the Act of 1916 to be
understood very differently from the way it
was in the day of its enactment. The powers
of the District Magistrate must, therefore,
be held limited to Section 34 and not
expanded in any manner."

18. The issue has been answered
authoritatively by a Bench decision of this
Court
in
President,
Nagar
Palika
Parishad, Sultanpur, Babita Jaiswal v.
State of U.P., AIR OnLine 2019 All 2407.
In Babita Jaiswal (supra), it was held:

"(24) From a bare reading of said
Section 34, it is clear that the District
Magistrate has power to interfere with only
such resolutions or orders of the Nagar
Palika Parishad if the same are likely to
cause or tend to cause 'obstruction,
annoyance or injury to the public......' or
'danger to human life, health or safety or a
riot or affray'. Awarding a contract in
favour of a person cannot be matter, which
may cause obstruction, annoyance or injury
to the public or danger to human life, health
or safety etc. Even directions to make
4 All. Rajesh Kumar Yadav Vs. State of U.P. & Ors.
401
payment with regard to contract given by
the Nagar Palika Parishad or execution of
resolutions passed by the Nagar Palika
Parishad, which include cleaning of drains
and repairing of roads etc. also would not
fall in the category of cases enumerated
under Section 34 of the Act under which
the District Magistrate can invoke the
powers under Section 34 of the Act.

(25) The Constitution of India as
well as the Uttar Pradesh Municipalities
Act, 1916 envisage that the Nagar Palika
Parishads are to work independently and
carry on the functions and duties, which it
is obliged in law to perform. Interference
by the District Magistrate or the State
Government would only be permissible if
the
circumstances
enumerated
under
Section 34 of the Act prevail.

(26)
The
bye-laws
dated
24.09.1994, as annexed with the writ
petition as Annexure no.10, providing for
registration and execution of works was
published under Section 301 of the Act,
1916 inviting objections which is the
previous
publication
envisaged
under
Section 300 of the Act, 1916. In the counter
affidavit, it has been stated that the byelaws in question was never published in the
official gazette as required under Section
301 of the Act, 1916. This fact is not
correct.
The
previous
publication
as
envisaged under the aforesaid provision has
been complied with and publication was
made in the official Gazette inviting
objections/suggestions from the general
public. The State has failed proved that
thereafter no final publication was made in
the Official Gazette under Section 301 (2)
of the Act, 1916.

(27) In our considered opinion,
the power, which has been exercised by the
District Magistrate in the present case,
would not fall within the ambit of
provisions of Section 34 of the Act. The
members of the Nagar Palika Parishad are
duly elected and interference by the
executive would only be to the extent
permissible in law. Since we are of the
opinion that the orders passed by the
District Magistrate are outside the purview
of the provisions of Section 34 of the Act,
1916 and the learned Standing Counsel has
not placed any other provision of law under
which the District Magistrate could have
passed the said orders, which clearly
interfere with the functioning of the Nagar
Palika Parishad, the said orders would be
liable to be quashed."

19. In Subodh Kumar Gupta and
others v. State of U.P. through Principal
Secretary and others, 2016 SCC OnLine
All 1358, the issue was considered by this
Court in the context of an order made by
the
District
Magistrate,
Farrukhabad,
terminating the service of the petitioners
there, all of whom were Class-III and IV
employees of the Nagar Palika Parishad,
appointed after the Chairman's approval.
The appointments were terminated by the
District Magistrate, purporting to exercise
his powers under Section 34 of the Act of
1916. In the aforesaid circumstances, it was
held by this Court in Subodh Kumar
Gupta (supra):

"16. From a bare reading of
Section 34 of the Act, it is clear that the
District Magistrate has power to interfere
with only such resolutions or orders of the
Nagar Palika Parishad if the same are likely
to cause or tend to cause 'obstruction,
annoyance or injury to the public......' or
'danger to human life, health or safety or a
riot or affray'. Awarding a contract in
favour of a person cannot be matter, which
may cause obstruction, annoyance or injury
to the public or danger to human life, health
or safety etc. Even directions to make
402 INDIAN LAW REPORTS ALLAHABAD SERIES
payment with regard to contract given by
the Nagar Palika Parishad or execution of
resolutions passed by the Nagar Palika
Parishad, which include cleaning of drains
and repairing of roads etc. also would not
fall in the category of cases enumerated
under Section 34 of the Act under which
the District Magistrate can invoke the
powers under Section 34 of the Act. The
Constitution of India as well as the Act
envisage that the Nagar Palika Parishads
are to work independently and carry on the
functions and duties, which it is obliged in
law to perform. Interference by the District
Magistrate or the State Government would
only be permissible, if the circumstances
enumerated under Section 34 of the Act
prevail."

20. In Vimlesh Lal (supra), where
the District Magistrate was confronted with
the patent lack of authority with him to
interfere in service matters of the Nagar
Palika, he conceded to the lack of his
authority in the matter. Here, the District
Magistrate has taken a stand about an
assumed authority and jurisdiction, not
possessed by the holder of that office.

21. In plurality of governance, like
other pluralities, powers are exercised
concerning
different
bodies
and
establishments by no unity of authority.
Sometimes, within the establishment, the
laws may invest a particular Authority with
a specific power that the other, may be a
higher up in the hierarchy, cannot exercise.
This
Court
cannot
ignore
much
misconception,
prevalent
about
the
omnicompetence of the District Magistrate,
which does not exist. Heads of independent
elected bodies, as already remarked, or
independent departments, are often seen
succumbing to orders of the District
Magistrate, which the District Magistrate
has no business to issue. The acceptability
of the District Magistrate's jurisdiction,
where he/ she possesses none, is an
unfortunate shadow of the colonial past,
again as already remarked. The sooner this
misconception is given up in favour of the
plurality of powers exercised by various
authorities functioning under different
laws, the better. All District Magistrates in
the State will, therefore, bear caution,
limiting their interference in the Nagar
Palika strictly to what the Act of 1916
permits.

22. In the result, this petition succeeds
and is allowed with costs. The order of the
District Magistrate, Hapur carried in the
inspection note dated 06.04.2022, ordering
the Executive Officer of the Nagar Palika
Parishad not to draw and disburse the
petitioner's salary, is hereby quashed. A
mandamus is issued to the Executive
Officer, Nagar Palika Parishad, Hapur to
ensure payment of all such dues on account
of salary/ emoluments to the petitioner that
have been withheld under orders of the
District Magistrate, Hapur, since quashed,
together with simple interest @ 6% per
annum till date of payment. A mandamus is
further issued to the Executive Officer,
Nagar Palika Parishad, Hapur to forward
the
medical
leave
papers
to
the
Commissioner, Meerut Division, Meerut.
The
Commissioner,
Meerut
Division,
Meerut shall be under a command to decide
the petitioner's application for sanction of
medical leave in accordance with law
within a period of 15 days of the receipt of
a copy of this order.

23. Let a copy of this order be
communicated to the District Magistrate,
Hapur and the Commissioner, Meerut
Division,
Meerut
by
the
Registrar
(Compliance).
4 All. Mahesh Kumar Vs. State of U.P. & Anr.
403
----------
(2024) 4 ILRA 403
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 13670 of 2023

Mahesh Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Harish Chandra

Counsel for the Respondents:
C.S.C., Sri Manu Saxena, Sri Radhamani
Saxena

Civil law - U.P. Municipalities Act, 1916 -
Uttar
Pradesh
Government
Servant
Conduct
Rules,
1956
-
Rule
5
-
Contractual Employment - Termination of
Service - Election Candidature - Principles
of
Natural
Justice
-
Article
226
Jurisdiction
The petitioner, Mahesh Kumar, a contractual
Safai Karmchari with Nagar Palika Parishad,
Modi Nagar, challenged the termination of his
services vide order dated 29.04.2023 by the
Executive Officer, citing his candidature for the
Chairman's post in the 2023 Nagar Palika
elections as a violation of service conditions
under the U.P. Government Servant Conduct
Rules, 1956. The petitioner claimed he had
obtained a No Objection Certificate (NOC) and
leave, and argued the termination was arbitrary,
lacking
an
opportunity
for
hearing.
The
respondents contended the appointment was
purely contractual, no NOC was issued for
contesting elections, and the petitioner was
warned against violating Rule 5. Held: (1) The
petition was dismissed. (2) The petitioner, as a
contractual employee, had no lien on the post,
and his service was governed solely by the
contract, not the U.P. Municipalities Act, 1916,
or the Rules of 1956. (3) The termination did
not violate Article 14 or 16, as it arose from a
non-statutory contract, and disputes regarding
contract breaches were outside Article 226
jurisdiction, per St. of U.P. Vs Kaushal Kishore
Shukla. (4) The petitioner's claim of an NOC was
incorrect, as he was explicitly warned against
contesting elections. (5) No opportunity for
hearing was required, as the termination was
not punitive but based on contract terms. (6)
The petitioner was granted liberty to raise an
industrial dispute under the U.P. Industrial
Disputes Act, 1947.

List of Cases cited:

1. St. of U.P. & anr. Vs Kaushal Kishore Shukla,
(1991) 1 SCC 691;

2. Parshotam Lal Dhingra Vs U.O.I., AIR 1958
SC 36;

3. St. of Orissa Vs Ram Narayan Dass, (1961) 1
SCR 606; R.C. Lacy Vs St. of Bihar, C.A. No.
590/62 (SC);

4. Champaklal Chimanlal Shah Vs U.O.I., (1964)
5 SCR 190;

5. Jagdish Mitter Vs U.O.I., AIR 1964 SC 449;

6. A.G. Benjamin Vs U.O.I., (1967) 1 LLJ 718;

7. Shamsher Singh Vs St. of Punjab, (1974) 2
SCC 831;

8. St. of Punjab Vs Sukh Raj Bahadur, (1968) 3
SCR 234.

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner, a Safai Karmchari,
engaged on contract by the Nagar Palika
Parishad, Modi Nagar, Ghaziabad, assails
the order dated 29.04.2023, determining the
contract and in consequence terminating his
services. The order aforesaid has been
passed by the Executive Officer, Nagar
Palika Parishad, Modi Nagar, Ghaziabad,
and, shall hereinafter be referred to as the
'impugned order'.