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This position is so well established that we are reluctant to hold that in enacting section 43A the Madras Legislature intended to confer power on the State Government to invade the domain of the exercise of judicial power. Ratio |
In fact, if such had been the intention of the Madras Legislature and had been the true effect of the provisions of section 43A, section 43A itself would amount to an unreasonable contravention of fundamental rights of citizens and may have to be struck down as unconstitutional. Ratio |
That is why the Madras High Court in dealing with the validity of section 43A had expressly observed that what section 43A purported to do was to clothe the Government with authority to issue directions of an administrative character and nothing more. Ratio |
It is somewhat unfortunate that though judicial decisions have always emphasised this aspect of the matter, occasion did not arise so long 13 to consider the validity of the Government order which on the construction suggested by the respondent would clearly invade the domain of quasi judicial administration. Ratio |
There is another consideration which is also important. Ratio |
If section 43A authorises the State Government to issue directions or orders in that wide sense, section 68 would become redundant and safeguards so elaborately provided by section 133 while the State Government purports to exercise its authority under section 68, would be meaningless. Ratio |
If orders and directions can be issued by the State Government which are not distinguishable from statutory rules, it is difficult to see why section 68 would have dealt with that topic separately and should have provided safeguards controlling the exercise of that power by section 133. Ratio |
It is likewise significant that the directions and orders issued under section 43A are not required to be published nor are they required to be communicated to the parties whose claims are affected by them. Ratio |
Proceedings before the Tribunals which deal with the applications for permits are in the nature of quasijudicial proceedings and it would, indeed, be very strange if the Tribunals are required to act upon executive orders or directions issued under section 43A without conferring on the citizens a right to know what tho... |
The very fact that these orders and directions have been consistently considered by judicial decisions as administrative or executive orders which do not confer any right on the citizens emphatically brings out the true position that these orders and directions are not statutory rules and cannot therefore seek to fette... |
It is, however, urged that the principles laid down in the impugned order are sound principles and no challenge can be made to the validity of the order when it is conceded that the order enunciates very healthy and sound principles. ARG |
This order, it is argued, can be considered as expert opinion the assistance of which is afforded by the State Government to ,he Tribunals dealing with the question of granting permits. Ratio |
We are not impressed by this argument. Ratio |
It is not the function of the executive to assist quasi judicial Tribunals by issuing directions in the exercise of its powers conferred under section 43A. Ratio |
Besides, if section 43A is valid and an order which is issued under it does not fall outside its purview, it would be open to the State Government to issue a direction and require the Tribunal to follow that direction unquestionably, in every case. Ratio |
It is true that in regard to the marking system evolved by the im pugned rule, liberty is left to the Tribunal not to adopt that system for reasons to be recorded by it. Ratio |
This liberty in practice 14 may not mean much; but even theoretically, if the impugned order is valid, nothing can prevent the State Government from issuing another order requiring that the marking system prescribed by it shall always be followed. Ratio |
We have already seen that section 43A itself provides that effect shall be given to the orders issued under it, and so, if an order issued under section 43A itself were to prescribe that it shall be followed, it will have to be followed by the Tribunal and no exception can be made in that behalf. Ratio |
Therefore, we cannot accept the argument strongly pressed before us by Mr. Ganapathy Iyer on behalf of respondent No. 1 that the validity of the order cannot be challenged on the ground that the principles laid down by it are sound and healthy. Ratio |
We have, therefore, come to the conclusion that the impugned order is outside the purview of section 43A inasmuch as it purports to give directions in respect of matters which have been entrusted to the Tribunals constituted under the Act and which have to be dealt with by these Tribunals in a quasi judicial manner. Ra... |
We cannot overlook the fact that the validity of the Act particularly in reference to its provisions prescribing the grant and refusal of permits, has been sustained substantially because this important function has been left to the decision of the Tribunals constituted by the Act and these Tribunals are required to fu... |
We are conscious of the fact that the impugned order was issued after and presumably in response to the decision of Madras High Court in the case of C.S.S. Motor Service(1) though it Would appear that what the High Court had suggested was presumably the making of the rules under section 68 of the Act. Ratio |
It cannot also be disputed that the main object of the State Government in issuing this order was to avoid vagaries, and introduce an element of certainty and objec tivity, in the decision of rival claims made by applicants in respect of their applications for permits. Ratio |
It may have been thought by the State Government that if the Tribunals are allowed to exercise their discretion without any guidance, it may lead to inconsistent decisions in different areas and that may create dissatisfaction in the public mind. Ratio |
It does appear, however, that in some other States the problem of granting permits has been resolved without recourse to the marking 15 system. Ratio |
But apart from that, even if it is assumed that the, marking system, if properly applied, may make the decisions in regard to the grant of permits more objective, fair and consistent, we do not see how that consideration can assist the decision of the problem raised before us If the State Government thinks that the app... |
Section 47(1)(a) requires inter alia that the interests of the public generally have to be borne in mind by the Regional Transport Authority in considering applications for stage carriage permits. Ratio |
The said section refers to other matters which have, to be borne in mind. Ratio |
It is unnecessary to indicate them for our present purpose. Ratio |
The Legislature may amend section 47 by indicating additional considerations which the Transport Authority has to bear in mind; or the Legislature may amend section 47 by conferring on the State Government expressly and specifically a power to make rules in that behalf or the State Government may proceed to make rules ... |
These are all possible steps which may be taken if it is thought that some directions in the nature of the provisions made by the impugned order must be issued. Ratio |
That, however, is a matter with which we are not concerned and on which we wish to express no opinion. Ratio |
As this court has often emphasised, in constitutional matters it is of utmost importance that the court should not make any obiter observations on points, not directly raised before it for its decision. Ratio |
Therefore, in indicating the possible alternatives which may be adopted if the State Government thinks that the marking system helps the administration of the Act, we should not be taken to have expressed any opinion on the validity of any of the courses specified. Ratio |
That leaves only one point to be considered. Ratio |
Mr. Ganapathy Iyer urged that even though the impugned order may be valid, that is no reason why the order passed by the Appellate Tribunal which has been confirmed by the High Court in the present writ proceedings should be reversed. Ratio |
He argues that what the Appellate Tribunal has done, is to act upon the principles which are sound and the fact that these principles have been enunciated by an invalid order should not nullify the decision of the Appellate Tribunal itself. Ratio |
Thus presented, the argument is no doubt plausible; but a closer examination of the argument reveals the fallacy under lying it. Ratio |
If the Appellate Transport Authority had considered these, matters on its own without the compulsive force of the impugned order, it would have been another matter , but the order pronounced by the Appellate Authority clearly and unambiguously indicates that it held and in a sense rightly, that it was bound to follow t... |
It would, We think, be idle to suggest that any Transport Authority functioning in the State would normally refuse to comply with the order issued by the State Government itself. Ratio |
Therefore, 16 we have no hesitation in holding that the decision of the Appellate Tribunal is based solely on the provisions of the impugned order and since the said order is invalid, the decision itself must be corrected by the issue of a writ of certiorari. Ratio |
In the result, we allow the appeal, set aside the order passed by the High Court in Writ Petition No. 692 of 1959 and direct that the said Writ Petition be allowed. RPC |
There would be no order as to costs throughout. RPC |
In accordance with this decision a writ of certiorari shall be issued setting aside the order passed by the Appellate Tribunal and remanding the matter to the Regional Transport Authority for disposal in accordance with law. RPC |
Appeal No. 120 of 1963. FAC |
Appeal by special leave from the judgment and decree dated December 13, 1960, of the Allahabad High Court in Special Appeal No. 204 of 1957. FAC |
H. N. Sanyal, Solicitor General of India and C. P. Lal, for the appellants. FAC |
M. C. Setalvad and J. P. Goyal, for the respondents. FAC |
March 9, 1964. FAC |
The Judgment of the Court was delivered by SHAH, J. FAC |
Audh Narain Singh hereinafter called 'Singh ' was appointed in 1949 a Tahvildar in the District of Azamgarh in the State of U.P. and worked in the Cash Department of the Government treasury of that District. FAC |
The appointment of Singh was made by Dhanpat Singh Tandon, Government Treasurer, with the approval of the District Magistrate. FAC |
By order dated April 20, 1956, Singh who was then working as a Tahvildar in the sub treasury at tahsil Lalganj in the District of Azaimarli was informed that he was, under instructions from the Collector, removed from service. FAC |
Against the order of removal, Singh preferred an appeal to the Collector but the same was rejected, and a representation made to the Commissioner of the Banaras Division was unsuccessful. FAC |
Singh then preferred a petition under article 226 of the Constitution in the High Court of Judicature at Allahabad for a writ of certiorari quashing the order of removal passed against him and for a writ of mandamus or an order directing the Collector of Azamgarh and the State of Uttar Pradesh, Dhanpat Singh Tandon, Go... |
Singh claimed that be was a member of the civil service of the State of Uttar Pradesh or 91 held a civil post under the State, and was not liable to be removed from service without being afforded a reasonable opportunity of showing cause against the action proposed to be taken in regard to him under article 311(2) of t... |
Mehrotra J., who heard the petition held that the Government Treasurer being an employee of the State, a Tahvildar employed by the Government Treasurer to carry out the work entrusted by the State, subject to the control of the State Government, was an employee of the State Government, and the impugned order of removal... |
The order of Mehrotra J., was confirmed in appeal by the High Court of Allahabad. FAC |
In the view of the High Court, no direct relationship of master and servant between Singh and the State was established because Singh was appointed by the Treasurer, but the Treasurer having authority to employ him in order to carry out the work of the State, Singh was as much under the control of the State as he was u... |
Against the order passed by the High Court, this appeal is preferred with special leave. FAC |
The question which falls to be determined is whether a Tahvildar appointed in the Cash Department in the State of Uttar Pradesh is a civil servant of the State of Uttar Pradesh or holds a civil post in the State. Ratio |
In the State of Uttar Pradesh, contracts for administering the Cash Department of the District treasuries are given to persons who are called Government Treasurer. FAC |
The Treasurer holds a post specifically created in the District Treasury: he is appointed by the Collector subject to the approval of the Finance Secretary. FAC |
On being appointed, the Treasurer enters into an engagement for the due performance of his duties, and executes a bond in favour of the State. FAC |
The tenure of a Government Treasurer is temporary and he is not entitled to privileges of leave and pension, but he performs various duties connected with the executive functions of the State. Ratio |
His appointment is made by the Collector subject to the approval of the Finance Secretary. Ratio |
He has to maintain a true and faithful account of the property entrusted to him and his dealings therewith and to submit returns as prescribed. FAC |
He is also bound by the conditions, rules and regulations of the Government and also departmental rules and orders as may be in force, especially with reference to his relations and dealings with and the right of his subordinates. Ratio |
He has to attend the Government Treasury for the purpose of discharging his duties, and to show to his superior officers whenever called upon the property entrusted to him. Ratio |
A Government Treasurer is not in 92 the position of an independent contractor; he does not merely undertake to produce a given result, without being in the actual execution under the control of the person for whom he does the work. Ratio |
He is in the execution of his duties, and in the manner, method and mode of his work under the control of the State Government. Ratio |
A Government Treasurer is entitled to appoint Tahvildars to assist him in the discharge of his duties, but the appoint ment is made 'with the approval of the District Collector. Ratio |
Originally Tahvildars were directly appointed by the Govern ment of the Province to specific posts for performing duties in the District Treasuries. Ratio |
In 1927, however, Government Order dated July 25, 1927, was issued by the Secretary to Government Uttar Pradesh, Finance Department, reciting that Tahvildars in sub treasuries were appointed on the nomination of the Treasurer of the District Treasury, who was responsible for their work and honesty, the intention of the... |
In the circumstances, the best solution was to abolish the post of Tahvildars, to increase the remuneration of the Treasurer by an amount equal to the pay given to Tahvildars and to make 'him responsible for carrying on the work at sub treasuries through his own servants. Ratio |
A reservation, however was made that the Treasurer must not employ any person in the treasury or sub treasury without the approval of the District Officer and the Treasurer shall, when required by such District Officer remove without delay any person so employed. Ratio |
Pursuant to this Government Order, in the Manual of Orders the following paragraph 1561 was incorporated: "Tahvildars at sub treasuries are no longer Government servants. Ratio |
They are employed by the Treasurer who receives an allowance from Government to cover their pay and leave salary. Ratio |
The Treasurer however, shall not employ any person as a Tahvildar without the approval of the District Officer. Ratio |
The Treasurer shall remove a Tahvildar or transfer him from one Tahsil to another if required by the District Officer to do so on any ground which in the latter 's opinion would justify such a step. Ratio |
" 93 Even after the posts of Tahvildar were abolished the Government of Uttar Pradesh did not adopt a consistent atti tude and from time to time issued orders which indicate that a ,considerable degree of control was maintained by the District Officers upon the Tahvildars in the matter of appointment, removal from serv... |
On December 9, 1939, a Government Order was issued for payment of remuneration to the Tahvildars directly from the ,Government Treasury. Ratio |
It had come to the notice of the Government that the Treasurers paid to the cashier staff of the treasuries less than what they received on their account from the Government, after obtaining receipts for full amount. Ratio |
It was therefore directed that the Treasurer should prepare a statement showing in detail the emoluments of the staff, but payment of emoluments was to be made to the persons concerned by the Treasury Officer personally and their acknowledgment taken. Ratio |
In 1945 the Government of Uttar Pradesh raised with effect from April 1, 1945, the allowance to be paid to Government Treasurers for the pay of "the cashier staff of treasuries. Ratio |
" By para 3(a) a scheme for payment of gratuity on retirement was also devised for the benefit of permanent Tahvildars. Ratio |
It was provided that when a permanent Tahvildar retired, a gratuity of one month 's pay will be given to him for ,each completed year of service, subject to a maximum of 25 years ' completed service, the gratuity being admissible to permanent incumbents of posts and also to future entrants when appointed permanently, b... |
Gratuity was to be paid in the same manner as salaries were paid to the Tahvildars, and provisions on account of the increase due to the pay of Government Treasurers and allowances payable for the pay of the cashier staff of treasuries and for the grant of gratuity to the cashier staff were made under the Heads "25 Gen... |
By ,a letter dated June 17, 1953, addressed by the Joint Secretary to the Government, it was brought to the notice of the Collectors of Districts that the Government Treasurers had frequently dispensed with the services of Tahvildars working under them without sufficient reasons justifying such a course of action and a... |
The Government therefore informed the Collectors to bring to the 94 notice of the Treasure that adverse notice of such action is likely to be taken by the Government in future in case it was established that the Government Treasurers had indulged in high handedness in their dealings with their staff. Ratio |
It was also recorded by the Collector of Azamgarh that instances had come to his notice in which the services of the employees in the Cash Department of the treasuries had been dispensed with arbitrarily without framing specific charges against them or obtaining explanations, and it was ordered that in future when serv... |
Orders have also been lately issued in 1959, by which the scale of dearness allowance of the Tahvildars was revised and certain facilities for free medical attendance were also provided. Ratio |
It also appears that in some cases in which the Tahvildars who had been dismissed or suspended were reinstated by order of the Collector. Ratio |
For instance, under Treasury Officer, Azamgarh 's order dated August 14, 1948, it was recorded that under the Collector 's order Naunidh Prasad, Tahvildar, Phulpur (under suspension), was reinstated with effect from the date of taking over charge. Ratio |
There is also an order passed by the District Magistrate, Allahabad, in 1952 deputing one Ganesh Prasad working as Tahvildar in Handia sub treasury for Kumbha Mela duty. Ratio |
There is also the record of the disciplinary proceeding held by the District Magistrate on April 12, 1948, against Tahvildar Ganesh Prasad for improper conduct. Ratio |
It is therefore clear from the record that Tahvildars were appointed to perform the duties of cashiers in Government Treasuries. Ratio |
Their appointment was made by the Government Treasurer with the approval of the District Collector, but it was made for performance of public duties, and remuneration was paid to them by the State directly. Ratio |
Tahvildars were liable to be transferred under orders of the Collector and to be suspended or removed from service under his orders. Ratio |
An instance already referred to shows that a Tahvildar who had, been suspended by the Treasurer was ordered to be reinstated by the Collector. Ratio |
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