SEC 45(1) OF HARYANA MC ACT, 1994 MANDATES GAZETTE NOTIFICATION OVER APPOINTMENT OF MC COMMISSIONER BUT IT IS NEVER EVER PUBLISHED– HC ADVOCATE
Face2News/Chandigarh
As on date, in all Eleven Municipal Corporations (MCs) in the State of Haryana viz. Ambala, Hisar, Faridabad, Gurugram, Karnal, Manesar, Panchkula, Panipat, Rohtak, Sonipat and Yamunangar, IAS officers in various ranks have been posted (appointed) as Commissioners therein.
An Advocate at Punjab & Haryana High Court, Hemant Kumar, told that firstly it is interesting to note that the post of MC Commissioner in Haryana does not finds mention in the IAS (Fixation of Cadre Strength) Regulations, 1955 which was previously issued by Department of Personnel & Training (DoPT), Government of India in respect of State of Haryana in Dec, 2018. Hence, one may conclude that the post of MC Commissioner is not an IAS Cadre post in Haryana at least as per above fixed Regulations.
Hemant further told that even otherwise in Section 45(1) of Haryana Municipal Corporation Act (HMCA), 1994, it has been mentioned that the (State) Government shall, by notification in the Official Gazette, appoint a Suitable Officer as the Commissioner of the (Municipal) Corporation. (SUBHEAD)
Now who would be the “Suitable Officer” has not been explicitly & officially defined by the State Government either by a General or Special Order till date for reasons best known to it. Noteworthy that prior to 2015, it was however provided in Section 45(1) of HMCA, 1994 that an IAS officer having a minimum service as such of at least five years, shall be appointed as MC Commissioner. Be that as it may, owing to prevalence of ambiguity as regards “Suitable Officer” to be appointed/posted as MC Commissioner, legally any non-IAS officer too can be appointed(posted) as such.
Pertinent that on 1st January this year, a senior i.e. Super Time Scale IAS of Haryana Cadre 2004 batch, Phool Chand Meena, was posted as Commissioner, MC Gurugram.
In MC Faridabad, a Selection Grade IAS officer of 2010 batch, Jitender Kumar, is posted as Commissioner. In four MCs IAS of Junior Administrative Grade (JAG) viz. Dhirendra Khadgata ( 2012 batch)- MC Rohtak, Pradeep Dahiya ( 2013 batch)- MC Hisar, Monica Gupta (2014 batch)- MC Sonipat and Virender Lather ( 2014 batch)-MC Panchkula are posted as Commissioners. In rest of five MCs IAS of Senior Time Scale viz. Mohd Imran Raza ( 2015 batch)-MC Manesar, Prashant Panwar (2015 batch)-MC Ambala, Abhishek Meena(2016 batch)- MC Karnal, Rahul Narwal (2016 batch)- MC Panipat and Ayush Sinha (2018 batch)-MC Yamunanagar are posted as Commissioners.
Meanwhile Hemant has raised another interesting but significant legal point over the appointment (posting) of Commissioners of MCs in Haryana.
The State Government of Haryana has never published in the Official Gazette the requisite Notification(s) pertaining to appointment of IAS officers in all 11 MCs in Haryana which is however is very much mandated by law i.e. which in other words is a statutory requirement.
Pertinent that Section 45(1) of HMCA, 1994 as also mentioned hereinbefore clearly stipulates that the Government shall, by notification in the Official Gazette, appoint a suitable officer, as the Commissioner of the Corporation.
Unfortunately, the practice prevalent in the State Government is that Personnel Department under the signature of Chief Secretary issues posting/ transfer orders of IAS officer(s) as Commissioner(s) of MC(s) and the concerned IAS officer immediately joins as such without the statutory Notification being published in State’s Official Gazette, asserts Hemant.
The Advocate further states that the moot but significant legal point is that sans publication of ibid Gazette Notification in the Official Gazette not only the appointment of MC Commissioner in Haryana lacks statutory sanctity but even legality of Orders/Directions etc. passed by MC Commissioner remains under legal scanner & anyone aggrieved by it may question the same in a Court of law due to non-publication of requisite Notification pertaining to appointment (posting) as MC Commissioner in State's Official Gazette.
Hemant legally opines that if duly enacted law of the State Legislature viz. HMCA, 1994 (as amended till date) expressly mandates publication of Notification in Official Gazette pertaining to appointment of MC Commissioner, then the State Government is duty bound to strictly comply with the same and there ought to be no excuse in this regard. The Advocate has also written to the State Government umpteen times in this regard in recent years but no action has been taken hitherto.
