B SINGH Vs. ADMINISTRATOR MUNICIPAL CORPORATION

JUDGEMENT

(1.) BY this application under Articles 226 and 227 of the Constitution of India, the petitioner B. Singh applies for quashing an order, dated 13th December 1967, passed by the Administrator, Municipal Corporation, Raipur, with regard to his retirement from service, and for an appropriate writ or direction in the matter of his superannuation.

(2.) THE facts leading to this application, shortly stated, are these. THE petitioner was appointed as a teacher by the Municipal Committee, Raipur, on 2nd December 1940, and has been in Municipal employment since then. He was appointed as Principal of R. D. Tiwari High School, Raipur, on the 17th July 1959. THE Municipal Committee, Raipur, had framed a bye-law for regulating the conditions of services of officers and servants of the Committee, to the following effect:

(3.) IT would thus appear that the bye-law framed by the Municipal Committee, Raipur, on the 11th November 1960 regulating the conditions of service of officers and servants of the Committee remained in force despite the repeal of the M. P. Municipalities Act, 1922, until it was altered in the manner required. The Madhya Pradesh Municipalities Act, 1991, directs by section 95 that these matters shall be regulated by rules framed by the State Government. Admittedly, no rules have been framed by the Government under this section. That is because the language of that section does not make it obligatory for the State Government to make any such rules. Now, when the powers under section 95 are not exercised by the Government and no rules regulating the service conditions for the municipal employees are framed, their conditions of service were still governed by the bye law made under the repealed Act, which continued to remain in force. This is by reason of section 2 (2) (iv) (b), whereby the conditions of service, existing immediately before the commencement of the new Act, shall be deemed to be their conditions of service under the new Act, until altered in accordance with the provisions of that Act or the rules made thereunder. Furthermore, section 2 (2) (i) provides that all bye-laws made under the repealed Act shall, in so far as they are not inconsistent with the provisions of the new Act, be deemed to have been made under that Act. In that context, Explanation I to that section, declares, for removal of doubts, that any bye-law made or any thing done under the repealed Act shall not be deemed to be inconsistent with the provisions of the new Act merely on the ground that the procedure followed in making such bye-laws or doing such things was different from that prescribed under the new Act. The result is that the bye law framed by the Municipal Committee, Raipur, continued to govern the officers and servants of the Municipal Committee in the same way until it was altered "in the manner prescribed by the new Act", by virtue of section 2 (2) (iv) (b). The manner in which it could be altered is clearly provided for by section 95 which contemplated the making of rules by the State Government on the subject. The Municipal Committee had no authority to raise the age of superannuation and consequently Resolution No. 4, dated 16th September 1963, was ultra vires the Committee, and, therefore, legally ineffective to bring about a change in the age of superannuation of its servants. The position then is that so long as the bye-law notified on 2nd December 1960 stands, the age of retirement for municipal employees of the Municipal Corporation, Raipur, is 55, On this view, the order of retirement passed by the Administrator, Municipal Corporation, Raipur, was perfectly valid.