LexNAGPUR IMPROVEMENT TRUST versus YADAORAO JAGANNATH KUMBHARA AND 10 ORS.
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A NAGPUR IMPROVEMENT TRUST v. YADAORAO JAGANNATH KUMBHARA AND 10 ORS. AUGUST 13, 1999. B [S. SAGHIR AHMAD AND G.B. PATTANAIK, JJ.] Service Law: Appointments to the post of Assistant Engineers-Made by Nagpur C Improvement Trust-Resolution of Trust confirmed by State Government-Not found invalid-Notification in 1937 authorising Trust to make appointments- Challenge to the appointment made by Trust-Held, the appointments are valid-Nagpur Improvement Trust Act, 1936. Nagpur Improvement Trust Act, 1936-Sections 21, 22, 89 (1) (c)- D Provision requiring State to frame rules-For appointment to posts requiring professional skill-No rules made-Notification in 1937 enabling Trust to make appointments to certain posts-Whether Trust can make appointments in the absence of statutory rules-Held, yes-As long as there is no rule the administrative and executive instructions operate in the field E The respondents 3 & 5 filed a writ petition before the High Court, challenging the promotions made by the Appellant to the post of Assistant Engineer on the ground that there being no statutory rules providing the criteria for promotion the appointments are made on the whims of the appellant and it cannot be sustained. The appellant contended before the High F Court that when the State Government has not framed any rules, then the Board on whom the control and management entirely vests can make appointment and it cannot be interfered with by the High Court. The High Court allowed the Writ Petition and held that under Section 21 of the Nagpur Improvement Trust Act, 1936, it is the mandatory duty of the State Government to frame rules prescribing conditions under which appointments G can be made to the post under the Trust requiring professional skill and in the absence of such rules the Trust is not empowered to make any appointment I to such posts. On appeal before this Court, the appellant contended that the view H taken by the High court in interpreting the provisions of the Trust Act is 452 NAGPUR IMPROVEMENT TRUST v. Y.J. KUMBHARA 453 wholly unsustainable and such interpretation will create an administrative A chaos in managing the affairs of the Trust, that in the.service jurisprudence. it is an accepted rule that in the absence of any statutory rules the administrative instructions operate in the field, that therefore as long as there is no rule the Board would be empowered to make appointments to different posts and such decisions cannot be interfered with, that there has B been no finding by the High Court that the resolution of the Board providing criteria for appointment to the post of Assistant Engineer and the appointments are for extraneous consideration or have been malafidely taken and that therefore the High Court should not have interfered with the appointments in exercise of jurisdiction under Article 226 of the Constitution of India. The appellant also produced a notification under Section 89(1)(c) of the Act of C 1936 issued in 1937 which clearly indicated that except for the posts of Executive Officer, Trust Engineer and Valuation Officer the power of Trust under Section 22 of the Act to appoint persons to posts requiring professional skill remain unaffected. The respondents contended that so long as no rules have been framed D by the State Government under Section 21 of the Act it was not possible for the Trust to make any appointment to different posts and therefore the High Court was fully justified in quashing such appointments. Allowing the Appeal, the Court HE'LD : 1. In view of the provisions of the Act, the conclusion is irresistible that the State Government exercises effective control over the affairs of the Board including in the matter of appointments to different posts, if made by the Board under its resolution. The State Government is required to make rules prescribing the conditions under which members of E the staff requiring professional skill could be appointed by the Trust. But F when the State Government has not made any such rules even if the rules can be held to be of mandatory nature as has been held by the High Court, then it is difficult to comprehend that the Board is denuded of its general power of appointing and promoting people to different posts as provided under Section 22 of the Act If the view of the High Court under impugned Judgment G is taken to be correct then all appointments to different posts ever since 1936 ha
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