MANNALAL GUPTA Vs. MUNICIPAL COUNCIL, PIPARIA

JUDGEMENT

(1.) THE facts and circumstances leading to this application under articles 226 and 227 of the Constitution are that the services of the petitioner, who was appointed as Secretary of the Municipal Committee, Piparia, were first terminated by the Municipal Committee by a resolution passed on 18/19th November 1955. The decision of the Committee terminating the applicant's services was set aside in appeal by the Collector. Hoshangabad, and the applicant' was reinstated by an order made on 1st June 1959. The Committee unsuccessfully challenged the Collector's order by filling an application under articles 226 and 227 of the Constitution in this Court. Meanwhile the Committee again passed a resolution on 22nd October 1959 dismissing the applicant from service without obtaining the prior approval of the State Government which, according to the petitioner, was necessary under the proviso to section 25 (1) of the Central Provinces and Berar Municipalities Act, 1922 (hereinafter referred to as the Act). The applicant then preferred an app al before the Collector, Hoshangabad, challenging the order of dismissal on various grounds, one of them being that under the proviso to section 25 (1) of the Act he could not be dismissed from service without the previous approval of the State Government. While his appeal was pending the State Government made an order on 27th January 1962 (Annexure -5, Page 26, Paper Book), purporting to be under section 25 (l -A) of the Act, according ex post facto sanction to the termination of the applicant's services with effect from 22nd October 1959. When this order of the State Government was placed before the Collector Hoshangabad, he dismissed the appeal taking the view that as the State Government has ratified the action of the Municipal Committee, the objection that the petitioner had been dismissed without the previous approval of the Government was without any force. He did not enter into the merits of the other contentions raised in the appeal. The petitioner then filed an appeal before the Board of Revenue against the decision of the Collector. The Board of Revenue dismissed the appeal on the view that the appeal preferred before the Collector was not competent and the one filed before the Board of Revenue was also not competent.

(2.) THE applicant now contends that the order passed by the State Government on 27th January 1962 under section 25 (1 -A) granting ex post facto sanction to his dismissal was not in conformity with that provision and was this illegal; that the order of the Municipal Committee dismissing him from service was also illegal and that the Collector and the Board of Revenue erred in not hearing on merits the appeals preferred by him. He prays that the decisions of the Board of Revenue and the Collector, the order dated 27th January 1962 of the State Government, and the decision of the Municipal Committee dismissing him from service be all quashed by the issue of a writ of certiorari. In the alternative, it is prayed that the Board of Revenue and/or the Collector be directed to hear his appeal on merits.

(3.) ON behalf of the Municipal Committee, Shri Sen contended that the petitioner was only holding a temporary appointment and as such he had no right or appeal under rule 1 (c) of the Rules framed under section 25 (6). It was also said that in any case on the true construction of the proviso to section 25 (1) the previous approval of the Government was not necessary for the petitioner's dismissal. The argument was that the expression "shall be subject to a like approval" used in the proviso to section 25 (1) only meant that the approval should be of the State Government and did not imply that it should be a previous approval. Learned counsel for the Municipal committee further urged that an order made under section 25 (1 -A) relates back" and must for the purposes of an appeal under rule 1 (a) be regarded as falling under section 25 (1).