V GOPAL Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) In these two writ petitions the petitioners have called in question a notification issued by the. Government of Karnataka appointing respondents 3 and 4 as Deputy Health Officers of the Corporation of the City of Bangalore (hereinafter referred to as the 'Corporation'). The petitioners are the employees of the Corporation. By a resolution dt.5-6-1972 the Corporation resolved to appoint the petitioner in WP.3491/1973 as the Deputy Health Officer of the Corporation. By another resolution dt.19-8-1971 the "Corporation resolved to appoint the petitioner in WP.3511/ 1973 as the Deputy Health Officer of the Corporation. After parsing the above resolutions, the Corporation sought the approval of the State Government to appoint the petitioners in these two writ petitions as 'Deputy Health Officers and in the meanwhile posted them in independent charge of the posts subject to the receipt of approval from the State Government. Instead of according its approval to the resolutions passed by the Corporation or writing to the Corporation stating that the Government was not willing to accord its approval to the same, the State Government straight away proceeded to issue the impugned notification appointing respondents 3 and 4 as Deputy Health Officers of the Corporation. Aggrieved by the said notification the petitioners haye filed these two writ petitions.

(2.) The contention of the petitioners in these two petitions is that the action of the State Government in appointing respondents 3 and 4 as Deputy Health Officers of the. Corporation is wholly without jurisdiction. The relevant provisions which govern the. appointments in question are Ss. 94, 89 and 86 of the City of Bangalore Municipal Corporation Act, 1949 hereinafter referred to as the Act). S.94 empowers the Standing Committee of the Corporation to frame service regulatiqns regulating the conditions of service of the employees, prescribing educational or other qualifications in respect of those employees, regulating their conduct and generally prescribing the conditions of service. Under the first proviso to, S.94 every regulation so framed is subject to confirmation by the Corporation and that every regulation framed under Clause (b) in respect "of any offi- cer whose appointment is subject to confirmation by the Government or clause(d)or clause (e) or clause (g) should receive the sanction of the State Government in order to be effective. The Standing Committee framed the City of Bangalore Municipal Corporation Services (General) Cadre and and Recruitment Regulations 1971, (hereinafter referred to as the Regulations) in accordance with law. Under the Regulations, the post of a Deputy Health Officer of the Corporation can be filled up either by promotion or selection from the Cadre of Medical Officers of Health or by deputation from the Health Department of the State Government. The Corporation is shown as the Authority competent to appoint a Deputy Health Officer under the Regulations. The Corporation is authorised to appoint Deputy Health Officers with the approval of the State Government under S.84 of tne Corporation Act. S.89 of the Act directs that subject to the provisions o,f Ss.84, 85. 86 and 88 appointments to the Corporation establishment shall be made by the Corporation if the maximum monthly salary exceeds Rs. 250 and by the Commissioner in all other cases. Since the post of a Deputy Health Officer carries a monthly salary of not less than Rs.250, the appointment has to be made by the Corporation. S.84 of the Act is inapplicable to these cases because the post of a Deputy Health Officer is not one of those dealt with by S.84. Similarly, Ss.85 & 88 are also not applicable. The only Section which requires to be examined in this context is S.86 of the Act, which reads as follows : 86. Time within which vacancy in superior appontment must be filled up.-

(3.) As already mentioned, after parsing the resolutions to appoint the petitioners in the two writ petitions as Deputy Health Officers, the Corporation sought the approval of the State Government to those resolutions. The Government did not pass anyorder confirming the said appointments. The Government did not also intimate the Corporation that it had not confirmed the said appointments. Sub-sec. (2) of Sec.86 requires the State Government to intimate the Corporation that it has refused to confirm any appointment made by the Corporation in respect of which confirmation is sought to enable the Corporation to made a fresh appointment within 45 days from the receipt of the order refusing confirmation under the said sub-section. Admittedly, in these cases the Corporation was not given an opportunity to make a fresh appointment under the said sub-sec. The Government however proceeded to appoint respondents 3 and 4 as Deputy Health Officers of the Corporation presumably in exercise of its .power under sub-sec. (3) of S.86 of the said Act. A reading of that subsection would show that the Government can exercise power under subsec. (3) of S. 86 only in default of any appointment or fresh appointment being made in accordance with sub-sec. (1) or sub-sec. (2), as the case may be, and when the Government appoints a person to hold an office in that way such person shall be deemed to have been appointed by the Corporation. A default on the part of the Corporation would arise only when the Corporation is given an opportunity by the State Government to, make fresh, appointment by intimating it its decision to refuse to confirm the appointment made undersub-sec. (1) of S.86. No such opportunity haying been given, it cannot be said that the Corporation had committed any default which alone would confer the jurisdiction on the State Govt. to make appointments directly u/sub-sec.(3)of S.86. It was however argued on behalf of the respondents that the impugned notification can be sustained in view of the provisions in the Regulations which provide for appointment of Deputy Health Officers by deputation of officers working in the Health Department of the State Government. The said contention has to be reiected because even when the appointment is made by deputation of officers from the Health Department of the State Government, the appointment has to be made by the Corporation under S.R9 of the Act The State Government cannot therefore by virtue of the Regulations clutch at the jurisdiction to exercise the power of appointment of 'officials of the Corporation.