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Case Number

Misc. Petn. No. 1150 of 1974

Attorney(S)

Y.S.Dharmadhikari
S.K.Mukherjee
Rajendra Tiwari
M.Mukherjee
Gulab Gupta

Judges

Shiv Dayal, C.J
J.S Verma
C.P Sen, JJ.

Acts

Section 234 of the Ajmer Merwara Municipalities Regulation (6 of 1925)
sub-sec. (1) of Section 58 of the M.P Municipal Corporation Act, 1956
Section 56 of the M.P Municipal Corporation Act, 1956,
Section 58 of the M.P Municipal Corporation Act,
Adhiniyam, 1961, i.e U.P Act XXXIII of 1961.
sub-sec. (1) of Section 58
sub-section (1) of S. 58

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Smart Summary

Structured Summary of the Opinion (Verma, J.)

Factual and Procedural Background

This is a reference made to the Court to resolve an acknowledged conflict between two Division Bench decisions of this Court: Narayan Keshav Dandekar v. R.C. Rathi (AIR 1963 Madh Pra 17 : 1963 MPLT 709) and Ras Bihari Pande v. Municipal Corporation, Jabalpur (1966 MPLJ 426). The central statutory provision in issue is the second proviso to sub‑section (1) of Section 58 of the M.P. Municipal Corporation Act, 1956, which requires consultation with the State Public Service Commission when certain municipal appointments are made by the Standing Committee.

The specific controversy concerned the validity of the appointment of respondent No. 2, S.K. Chaudhary, as City Engineer of the Municipal Corporation, Jabalpur, where it was contended that such appointment was made without the consultation required by the proviso to Section 58(1).

The reference asks whether the consultation requirement is mandatory such that an appointment made without consultation is invalid, and also whether the words “in the manner prescribed” render the proviso inoperative until rules prescribing the mode of consultation are framed.

Legal Issues Presented

Whether the requirement of consultation with the State Public Service Commission in the second proviso to sub‑section (1) of Section 58 of the M.P. Municipal Corporation Act, 1956 is mandatory, and whether an appointment made without such consultation is invalid.
Whether the phrase “in the manner prescribed” in the second proviso to Section 58(1) means that the proviso does not operate until rules prescribing the mode of consultation are framed (i.e., whether rule‑making is a condition precedent to the operation of the consultation requirement).

Arguments of the Parties

Respondent No. 1 (Municipal Corporation) — submissions of Shri Mukerji

Argued that because there were no rules prescribing the mode of consultation with the State Public Service Commission, the second and third provisos to Section 58(1) had not yet come into operation and therefore could not be enforced.

Respondent No. 2 (S.K. Chaudhary) — submissions of Shri Y.S. Dharmadhikari

Did not contest the correctness of the conclusion that consultation is mandatory in the circumstances described (i.e., he did not dispute the consequence that an appointment without consultation was invalid in light of precedent cited by the Court).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Narayan Keshav Dandekar v. R.C. Rathi (AIR 1963 Madh Pra 17 : 1963 MPLT 709)	Earlier Division Bench decision holding that consultation with the State Public Service Commission (as required by the proviso to S.58(1)) is mandatory and that appointments made without such consultation are invalid.	The Court upheld the view taken in Dandekar and treated it as the correct interpretation of S.58(1)'s proviso for the purposes of this reference.
Ras Bihari Pande v. Municipal Corporation, Jabalpur (1966 MPLJ 426)	Earlier Division Bench decision holding that failure to consult the State Public Service Commission did not render an appointment invalid, treating the Commission as merely advisory.	The Court found that the Pande decision was not correctly decided on this point (paragraph 6 of that decision) and held that it could not be followed in view of controlling precedent.
Prakash Chand Maheshwari v. Zila Parishad, Muzaffarnagar ((1971) 2 SCC 489 : AIR 1971 SC 1696)	Supreme Court held that where a statute required appointment “in consultation” with the Public Service Commission and in case of difference a reference to the State Government, an appointment made without such consultation was invalid.	The Court relied on this Supreme Court decision as authoritative and decisive, concluding that the consultation requirement in S.58(1) is mandatory and that appointments without such consultation are invalid.
Dargah Committee, Ajmer v. State of Rajasthan (AIR 1962 SC 574)	Established that where a statute provides that something must be done “in the manner prescribed,” the absence of framed rules does not necessarily render the statutory power inoperative; the statutory power remains enforceable and the details can be carried out reasonably until rules are framed.	The Court applied this principle to reject the argument that the consultation requirement under S.58(1) could not operate until rules prescribing the mode of consultation were made; consultation may be conducted reasonably until rules are framed.

Court's Reasoning and Analysis

The Court undertook a textual and purposive reading of Section 58 of the M.P. Municipal Corporation Act, 1956. It observed that:

Sub‑section (2) of Section 58 permits temporary appointments for a period not exceeding six months without consultation with the State Public Service Commission; these are clearly intended to be temporary appointments.
Sub‑section (1) provides the general power of appointment and the three provisos allocate appointing authority among the Standing Committee and the Commissioner and then require that appointments to be made by the Standing Committee be “in consultation with the State Public Service Commission in the manner prescribed.”
The third proviso creates a specific mechanism where, if there is a difference between the Standing Committee and the State Public Service Commission, the matter is to be laid before the Corporation and if the Corporation does not agree with the Commission, a reference must be made to the State Government whose decision is final. The scheme thereby denies the Corporation power to ignore the Commission's opinion except by recourse to the State Government.

From this statutory scheme the Court concluded that the consultation requirement is integral to the appointment process for posts falling under the Standing Committee's appointing power and that appointments made without such consultation are not authorized by the statute.

The Court then relied upon the Supreme Court decision in Prakash Chand Maheshwari v. Zila Parishad, which involved a provision in pari materia and where the Supreme Court held that an appointment made without the mandated consultation was invalid. The Court treated that Supreme Court ruling as dispositive and applied its reasoning to the facts and statute before it.

Addressing the submission that the words “in the manner prescribed” meant that the proviso could not operate until rules were framed, the Court rejected that submission. Relying on Dargah Committee, Ajmer v. State of Rajasthan, the Court held that the absence of rules prescribing the precise mode of consultation does not render the statutory requirement unenforceable. Instead:

The phrase “in the manner prescribed” contemplates that rules, if and when made, will provide procedural detail; but until such rules exist consultation must be carried out in a reasonable manner thought fit by the Corporation.
There is nothing identified in the statute which remains to be supplied by rules so as to prevent effective consultation in the meantime.

On these bases the Court concluded that the earlier decision in Dandekar correctly interpreted Section 58(1) and that the contrary view in Ras Bihari Pande was incorrect on this point. The reference was therefore answered in favour of the interpretation that consultation is mandatory and that appointments made without such consultation are invalid.

Holding and Implications

Core Ruling: Reference Answered — The requirement of consultation with the State Public Service Commission under the second proviso to sub‑section (1) of Section 58 of the M.P. Municipal Corporation Act, 1956 is mandatory; appointments made without such consultation are invalid.

Direct implications stated in the opinion:

The earlier Division Bench decision in Narayan Keshav Dandekar v. R.C. Rathi is upheld on this point.
The contrary view expressed in Ras Bihari Pande v. Municipal Corporation, Jabalpur (paragraph 6 of that decision) is not correct and cannot be followed on this point.
An appointment made by the Corporation without the mandated consultation is rendered invalid where consultation is statutorily required. The statutory scheme provides that if the Corporation and the State Public Service Commission disagree, the Corporation must refer the matter to the State Government and await its final decision; the Corporation cannot itself overrule the Commission.
The absence of rules prescribing the precise mode of consultation does not prevent the proviso from operating; consultation should be carried out in a reasonable manner until rules, if any, are framed.
The reference is answered accordingly and the matter is remitted to the Division Bench for disposal on merits of the petition (i.e., the case goes back for decision on substantive issues after the reference point has been settled).

The opinion did not state any wider or novel statutory principle beyond these effects; the Court primarily applied existing precedent (including the Supreme Court) to resolve the conflict and direct further proceedings in accordance with that interpretation.

Disposition: Reference answered. Case remitted to the Division Bench for further decision on merits in accordance with this view.

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Sudhir Kumar Mishra And Others v. Municipal Corporation, Jabalpur And Another

Verma, J.:— This reference has been made to resolve the conflict between two Division Bench decisions of this Court reported in Narayan Keshav Dandekar v. R.C Rathi; AIR 1963 Madh Pra 17 : 1963 MPLT 709 and Ras Bihari Pande v. Municipal Corporation, Jabalpur, 1966 MPLJ 426. The question for decision is whether the requirement of consultation with the State Public Service Commission laid down by the second proviso to sub-sec. (1) of Section 58 of the M.P Municipal Corporation Act, 1956, is, mandatory, so that an appointment purporting to be made in accordance with the power given by sub-sec. (1) of Section 58 without any such consultation is invalid. This question arises in the context of the validity of appointment of respondent No. 2 S.K Chaudhary as City Engineer of the Municipal Corporation, Jabalpur.

2. The earlier Division Bench deciding Dandekar's case (AIR 1963 Madh Pra 17) (supra) held that this requirement of consultation with the State Public Service Commission is mandatory and such an appointment made by the Corporation without consultation with the Commission was invalid. On the other hand, the latter Division Bench deciding Pande's case (1966 MPLJ 426) (supra) took the view that the failure to consult the State Public Service Commission in making such an appointment did not render the appointment invalid, the status of the State Public Service Commission being merely advisory. It may be mentioned that no reference is made to Dandekar's case in this latter decision which means that the earlier Division Bench decision in Dandekar's case was apparently not brought to the notice of the subsequent Division Bench. This is how the conflict arises which we are called upon to resolve. Section 56 of the M.P Municipal Corporation Act, 1956, reads as under:—

“58. Appointment and salary of City Engineer, etc.

(1) Subject to the provisions of this Act the Corporation shall appoint a City Engineer, a Health Officer, a Revenue Officer, a Municipal Secretary and a Municipal Accountant and may appoint a Deputy Municipal Commissioner and such other officers and servants as are necessary for the efficient carrying out of the purposes of this Act and may assign to them such duties and pay them such salaries and allowances, pensions and gratuities and make on their behalf such payments to the provident or annuity funds as the Corporation may determine by bye-laws made in this behalf under S. 427: Provided that:—

(1) the power of appointing any person on a municipal post which carries a maximum monthly salary exceding 150 rupees shall vest in the Standing Committee;

(2) the power of appointing any person on a municipal post which carries a maximum monthly salary not exceeding 150 rupees shall vest in the Commissioner;

(3) any appointment made within his power by the Commissioner shall be reported for its information to the Standing Committee:

Provided further that the appointment to be made by the Standing Committee shall be so made in consultation with State Public Service Commission in the manner prescribed:

Provided also that in case of any difference of opinion between the Standing Committee and the State Public Service Commission, the matter shall be laid before the Corporation. If the Corporation agrees with the State Public Service Commission, the appointment shall be made accordingly. In the cases, a references shall be made by the Corporation to the Government whose decision shall be final.

(2) Notwithstanding anything contained in sub-sec. (1), the Standing Committee may make appointments for a period not exceeding six months without consultation with the state Public Service Commission.”

3. Sub-sec, (2) of S. 58 enables the making of appointment for a period not exceeding six months without consultation with the State Public Service Commission. Obviously, these are intended to be temporary appointments. Sub-sec. (1) provides for the general power of appointment and specifies some particular officers include in that category. The first proviso lays down the authority in the Corporation competent to make the appointments of the several categories of officers. The second proviso then requires that the appointments which are to be made by the Standing Committee, i.e according to Cl. (1) of the first proviso, are to be made in consultation with the State Public Service Commission in the manner prescribed. The third proviso further lays down that in case of difference of opinion between the Standing Committee and the State Public Service Commission, the matter shall be considered afresh by the Corporation obviously in the light of the Commission's opinion. If the Corporation agrees with the opinion of the State Public Service Commission, the appointment will be made accordingly. In other cases where there is no such agreement by the Corporation with the opinion of the State Public Service Commission, a reference shall be made by the Corporation to the Government whose decision thereon shall be final. The scheme clearly is that all such appointments requiring consultation with the Commission can be made by the Corporation only if the State Public Service Commission and the Corporation are of the same opinion. In other cases where the Corporation does not agree with the opinion of the State Public Service Commission, the Corporation is bound to refer the matter to the State Government whose decision is final. In short where there is no agreement between the Corporation and the State Public Service Commission, the Corporation is given no option except to refer the matter to the State Government and await its decision since no power is given to the Corporation to ignore the opinion of the State Public Service Commission. It is obvious that the power to overrule the Public Service Commission is given to the Government and not to the Corporation. As earlier stated, sub-sec. (2) enables only temporary appointments not exceeding six months being made without such consultation with the State Service Commission, the reason for which is obvious.

4. In our opinion, the decision in Prakash Chand Maheshwari v. Zila Partshad, Muzaffarnagar, (1971) 2 SCC 489 : AIR 1971 SC 1696 leaves no room for any controversy on this point. In that case. the Supreme Court was called upon to decide a similar point with reference to Section 43 of the U.P Kshettra Samitis and Zila Parishads Adhiniyam (33 of 1961) which obviously was in pari materia with Section 58 of the M.P Municipal Corporation Act, with which we are concerned. Under that provision, the appointment of a Kar Adhikari had to be made in consultation with the State Public Service Commission and in case of a difference of opinion between the Commission and the Parishad the matter was to be referred to the State Government whose decision was to be final. The Kar Adhikari not having been so appointed in consultation with the State Public Service Commission, the appointment was held to be invalid. Their Lordships summarised the position as follows:

“The last point raised by the petitioners relates to the appointment of the Kar Adhikari on the ground that it was not done in consultation with either Public Service Commission of the State or any other Commission or body appointed in that behalf by the State Government under Section 43 of the U.P Kshettra Samithis and Zila Parishads Adhiniyam, 1961, i.e U.P Act XXXIII of 1961. The appointment of respondent No. 2 in this case took place on 8th Aug. 1965; the impugned assessment was made on 8th March, 1968 i.e more than two years after the date of appointment. Under S. 43 the appointment of this officer to the post which carried an initial salary of more than Rs. 200 p.m could be made by the Parishad in consultation with the Public Service Commission or other Commission or selection body as might be constituted by the State Government and if there was a difference of opinion between the Commission and the Parishad the matter was to be referred to the State Government whose decision was to be final. Counsel for the respondents on the materials before this Court was only in a position to inform us that the State Public Service Commission had been notified of the appointment and they had not expressed any disapproval of the same. We do not think that this was sufficient compliance with S. 43…………….”

“Appointing respondent No. 2 as Kar Adhikari and merely sending the papers relating to such appointment to the Public Service Commission would not therefore be in compliance with Section 43 of the Act. Even if it be regarded as a temporary appointment, it could only be effective for two years and as the assessment in this case was made beyond that date it must be held that the assessment was by a person not competent to make it.”

5. The above decision of the Supreme Court concludes the point and it is obvious that there is no room for contending any longer that the provision requiring consultation with the State Public Service Commission as required by the second proviso to sub-sec. (1) of Section 58 of the M.P Municipal Corporation Act, 1956 is not mandatory. It necessarily follows that an appointment made without any such consultation with the commission where the same is mandatory, renders the appointment invalid. In the face of the above Supreme Court decision. Shri Y.S Dharmadhikari appearing for the respondent No. 2 did not question the correctness of this conclusion. It also follows that the decision in Ras Bihari Pande v. Municipal Corporation, Jabalpur, 1966 MPLJ 426 on this point as contained in paragraph 6 cannot be considered as correct and the view of the earlier Division Bench on this point in Narayan Keshav Dandekar v. R.C Rathi, AIR 1963 Madh Pra 17 must be upheld.

6. Shri Mukerji appearing on behalf of respondent No. 1 Municipal Corporation, argued that no rules prescribing the mode of consultation with the State Public Service Commission having been framed, the second and third provisos to sub-section (1) of S. 58 have not yet come into operation. It is not possible to accept this contention. The provision for consultation so made in Section 58(1) is complete in itself and capable of operation without the aid of any further rules to bridge the gap. For this reason, there is no need or room to take the view that unless rules are framed specifying the details of the mode of consultation till then this provision cannot operate. The words “in the manner prescribed” occurring in the second proviso only mean that if and when rules are framed laying down the details of procedure for consultation, they will be followed.

7. Till then the consultation with the Commission will be made in a reasonable manner thought fit by the Corporation, Nothing more was required to be prescribed by the law when it laid down the need of consultation with the Commission as a necessary requirement of a valid appointment under S. 58(1). It is not shown to us as to how the consultation with the State Public Service Commission cannot be made without rules being framed regulating the details of procedure and what is that thing, if any, that remains to be laid down to enable an effective consultation with the Commission.

8. We are fortified in this view which we are taking by the decision in Dargah Committee, Ajmer v. State of Rajasthan, AIR 1962 SC 574. It was argued before the Supreme Court that the proceedings under Section 234 of the Ajmer Merwara Municipalities Regulation (6 of 1925) for recovery of dues was incompetent because a demand had not been made “in the manner prescribed.” In other words the argument was that unless rules are framed and the form of notice is prescribed for making a demand under S. 222(1), no demand could be said to have been made “in the manner prescribed” by the rules, and an application under Sec. 234 was incompetent. This argument was rejected by the Supreme Court and it was held as follows:—

“If the rules are not prescribed then all that can be said is that there is no form prescribed for issuing a demand notice; that does not mean that the statutory power conferred on the Committee by S. 222(1) to make a demand is unenforceable.” … … … … … …

“That is the plain effect of the relevant provision of the Regulation, and so, an amount which was claimable by virtue of S. 222(1) does not cease to be claimable just because rules have not been framed prescribing the form of making the said demand. In our opinion, the contention that the application made under S. 234 was incompetent must be rejected.”

9. There is, thus, no reason to construe the expression “in the manner prescribed” in the present context to mean that framing of rules is a condition precedent to operation of the provision. We have noticed this argument simply because the point was urged by Shri Mukerji with great conviction about its correctness.

10. We are, therefore, of the opinion that the view taken by the Division Bench deciding Narayan Keshav Dandekar's case (AIR 1963 Madh Pra 17) (supra) on this point is correct. It must be said with great respect that Ras Bihari Pande's case (1966 MPLJ 426) (supra) was not correctly decided on this point. The reference is answered accordingly. The case shall now go back to the Division Bench for decision of the petition on merits.

11. Reference answered accordingly.

Sudhir Kumar Mishra And Others v. Municipal Corporation, Jabalpur And Another

Structured Summary of the Opinion (Verma, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondent No. 1 (Municipal Corporation) — submissions of Shri Mukerji

Respondent No. 2 (S.K. Chaudhary) — submissions of Shri Y.S. Dharmadhikari

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sudhir Kumar Mishra And Others v. Municipal Corporation, Jabalpur And Another

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