Gujarat High Court
Dineshbhai G Chavda & 7 vs State Of Gujarat & 5 on 19 February, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/329/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 329 of 2007
In
SPECIAL CIVIL APPLICATION NO. 3561 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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DINESHBHAI G CHAVDA & 7....Appellant(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR GIRISH PATEL, SR. ADVOCATE ASSISTED BY MR MANOJ SHRIMALI
FOR GIRISH PATEL ASSOC., ADVOCATE for the Appellant(s) No. 1 - 8
Page 1 of 25
C/LPA/329/2007 JUDGMENT
MR KKASHYAP PUJARA AGP for the Respondent(s) No. 1 - 4
MR DEEPAK P SANCHELA, ADVOCATE for the Respondent(s) No. 3
MR KK SHAH, ADVOCATE for the Respondent(s) No. 5
RULE SERVED for the Respondent(s) No. 6
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 19/02/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. Challenge in this appeal filed under Clause 15 of the Letters Patent is to the judgment and order dated 23.02.2007 passed by the learned single Judge in the captioned writ petition.
2. The facts in brief are that Viramgam Municipality, respondent no.3 herein, had published an advertisement dated 17.09.1995 in a local vernacular daily, named, "Jayhind", inviting applications for Class-III and Class-IV posts in the respondent-Municipality. The last date for submission of applications was 25.09.1996. The advertisement was brief in the sense that it did not contain any details regarding the total number of vacancies, name of posts, category-wise bifurcation of posts, educational qualifications, age criteria, etc. It Page 2 of 25 C/LPA/329/2007 JUDGMENT was provided in the advertisement that decision taken by the Selection Committee and signatories of the advertisement shall be final.
3. In response to the said advertisement, the appellants, original petitioners, submitted their applications. Subsequently, the appellants and other candidates were called for interview. The appellants appeared before the Selection Committee and were selected for different posts. The Selection Committee of the Municipality approved the appointments of the appellants vide Resolution dated 06.10.1996. The appellants were issued the appointment orders dated 10.10.1996 whereby, appellants no.1 to 3, who were belonging to Scheduled Caste community, were appointed as Junior Clerks, appellants no.4 & 5 were appointed as Cleaner-cum-Driver, appellants no.6 & 7 were appointed as Peons whereas, appellant no.8 was appointed as Water-pump man.
4. It appears that on the very same day, i.e. on 10.10.1996, respondent no.5 herein, who had been a Councilor of the respondent-Municipality in the past and happened to be the brother of an employee of the respondent-Municipality, filed an application/appeal before the District Collector, respondent no.4 herein, requesting to cancel the Resolution dated 06.10.1996 u/s.258(1) of The Page 3 of 25 C/LPA/329/2007 JUDGMENT Gujarat Municipalities Act, 1963 (for short, "the Act"). Section 258(1) of the Act reads as under;
"258. Powers of Collector to suspend execution of orders, etc., of municipalities:-
(1) If, in the opinion of the Collector, the execution of any order or resolution of a municipality, or the doing of anything which is about to be done or is being done by or on behalf of a municipality, is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful, he may by order in writing under his signature suspend the execution or prohibit the doing thereof and where the execution of any work in pursuance of the order or resolution of the municipality is already commenced or completed direct the municipality to restore the position in which it was before the commencement of the work."
[emphasis supplied]
5. The said appeal was decided by respondent- Collector, vide order dated 14.12.1996 whereby, the resolutions passed by the Selection Committee of the respondent-Municipality was quashed and Page 4 of 25 C/LPA/329/2007 JUDGMENT set aside. Being aggrieved by the said order, the appellants preferred Special Civil Application No.10563/1996 before this Court. The said petition was allowed by this Court vide judgment and order dated 24.01.1997 on the ground that no opportunity of hearing was given to the appellants, original petitioners, before passing the order dated 14.12.1996.
6. In pursuance of the above order of this Court, the appellants were heard and thereafter, vide order dated 15/25.04.1997, the respondent- Collector quashed and set aside the Resolution passed by the Selection Committee of the Municipality and directed the Municipality to restore position prevailing prior to the passing of Resolution dated 06.10.1996.
7. Against the above order, the appellants preferred the captioned writ petition before the learned single Judge, which came to be rejected, by way of the impugned judgment and order. Hence, the present appeal.
8. Mr. Girish Patel learned Senior Advocate appearing with Mr. Manoj Shrimali for the appellants, original petitioners, submitted that the appointment of the appellants was against sanctioned vacant posts. Their appointment was Page 5 of 25 C/LPA/329/2007 JUDGMENT not a "back-door" entry but, was made in pursuance of the advertisement issued by the respondent-Municipality and after undergoing due selection process. Therefore, the appointments of the appellants could not be termed as illegal or irregular.
8.1 Learned counsel Mr. Patel submitted that the allegations regarding nepotism and malpractice made by respondent no.5 in her complaint filed u/s.258 of the Act are completely false and baseless. Respondent no.5 could not substantiate and prove the allegations made by her in her complaint. Without appreciating the above aspects, the respondent-Collector quashed the Resolution passed by the respondent-Municipality, which, the learned single Judge also lost sight- off. He, therefore, submitted that the learned single Judge was not justified in confirming the order passed by the respondent-Collector.
8.2 Learned counsel Mr. Patel further submitted that no prior approval of the Director of Municipalities u/s.50 of the Act was required in the instant case. It was submitted that the power of appointment to posts already sanctioned vests in the Municipality and that for filling-up vacancies in the sanctioned posts, approval of the Director of Municipalities is not necessary.
Page 6 of 25C/LPA/329/2007 JUDGMENT Further, the said appointments were approved by the General Board of the Municipality. Therefore, the very basis of the order of respondent- Collector, which has been accepted by the learned single Judge, is wrong and deserves to be quashed and set aside.
8.3 Learned counsel for the appellant further submitted that the appointments of the appellants could not be termed as "illegal" simply because the advertisement issued by the respondent- Municipality did not contain necessary details. It was submitted that at the most the appointments of the appellants could be termed as "irregular" and not "illegal" since selection was made after following due procedure.
8.4 Learned counsel Mr. Patel submitted that the learned single Judge erred in not appreciating the fact that the appointments of the appellants do not fall within the ambit of the Collector's power u/s.258 of the Act. It was submitted that the resolution did not cause any breach of peace or annoyance or nuisance to others nor was it unlawful. Therefore, there was no reason for the respondent-Collector to exercise powers u/s.258 of the Act.
8.5 Learned counsel Mr. Patel submitted that the Page 7 of 25 C/LPA/329/2007 JUDGMENT impugned judgment and order is erroneous also on the ground that the learned single Judge travelled beyond the scope of writ petition. It was submitted that the respondent-Collector had set aside the appointments only on the ground that proper procedure in the form of approval of the Director of Municipality was not obtained before granting appointment to the appellants. However, the learned single Judge exceeded the scope by concluding that advertisements were not published in two local news-papers and that the appointment orders were not signed by the Chief Officer of the Municipality but, by the President. Hence, the impugned judgment and order passed by the learned single Judge is bad in law and deserves to be quashed and set aside.
8.6 Learned counsel Mr. Patel requested the Court that looking to the length of service of the appellants, the case of the appellants may be considered sympathetically since their appointments, at the most, could be termed as irregular and not illegal. He placed reliance upon a decision of apex Court in State of Karnataka & Others v. M.L. Kesari & Others, AIR 2010 SC 2587, particularly, the observations made in para-8 therein, which reads as under;
"8. The object behind the said direction in para 53 of Umadevi is two-fold. First is to Page 8 of 25 C/LPA/329/2007 JUDGMENT ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments / instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad-hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not dis-entitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure."
8.7 Learned counsel for the appellants, therefore, submitted that the case of the appellants deserve consideration looking to the long period of service and unblemished career.
9. Mr. Kkashyap Pujara learned AGP submitted that prior approval of the Director of Municipality u/s.50 of the Act is necessary Page 9 of 25 C/LPA/329/2007 JUDGMENT before making appointments in a Municipality. He drew our attention to the provision of Section 50 of the Act, which reads as under;
"50. Appointment of other officers and servants of the municipalities:-
(1) A municipality may with the previous sanction of the Director, create such posts of officers and servants other than those specified in sub-sections (1) and (2) of section 47 as it shall deem necessary for the purposes of carrying out the duties under the Act.
(2) The recruitment of such officers and servants and their condition of service shall be such as may be determined in accordance with rules made under section 271. (3) The power to make appointment in any post referred to in sub-section (1) shall vest in the municipality or in the authority empowered by the municipality by rules made in this behalf under section 271."
9.1 It was submitted by learned AGP that the respondent-Municipality had not obtained previous sanction of the State Government as required u/s.50 of the Act. The resolutions approving such appointments were not passed as per the Page 10 of 25 C/LPA/329/2007 JUDGMENT prevailing rules and regulations. He, therefore, submitted that the respondent authority has rightly set aside the appointments made by the Municipality u/s.258(1) of the Act.
10. Mr. Deepak Sanchela learned counsel appearing for the respondent-Municipality submitted that the appointment of the appellants was not only irregular but, also illegal. He submitted that the employees who were appointed, vide Resolution dated 06.10.1996, suffered one or the other disqualification. Either the employee concerned was found to be a relative of a Board Member or he was found to be suffering from some some other disqualification or he was appointed by superseding other senior co-workers.
10.1 Learned counsel Mr. Sanchela submitted that the appointment of the appellants is also illegal for the reason that they were not appointed by the competent authority empowered to grant appointment in a Municipality. He submitted that the competent authority to grant appointment in Municipalities across the State is the Chief Officer of the concerned Municipality and not any other authority.
10.2 He drew our attention to the orders of appointments at Annexure-B to the writ petition Page 11 of 25 C/LPA/329/2007 JUDGMENT and submitted that in the present case, order of appointment was issued by the President of the Municipality, which is contrary to the Circular dated 02.08.2000 issued by the Government of Gujarat. As per the said Circular, the competent authority to issue an order of appointment is the Chief Officer and not the President or any other authority of the Municipality. Therefore, the appointments of the appellants is void ab-initio.
10.3 Learned counsel for the respondent- Municipality further submitted that the advertisement dated 17.09.1995 was published in a vernacular local daily, named, "Jayhind", which had a very limited circulation. Further, the said advertisement was ambiguous as it did not contain any details regarding the posts, category-wise distribution of posts or details pertaining to educational qualifications, age criteria, etc. The advertisement was published in such manner so that minimum applications are received, which would facilitate the appointment of choice candidates and water the events of favoritism. Learned counsel, therefore, submitted that the respondent-Collector was justified in setting aside the appointment of the appellants and the learned single Judge has rightly confirmed the same.
Page 12 of 25C/LPA/329/2007 JUDGMENT 10.4 In support of his submissions, learned counsel Mr. Sanchela placed reliance upon the
decision in Manoj Nagardas Panchhiwala v. State of Gujarat and Others, 2004(1) GLR 846 wherein, it has been held that if the person concerned, who had no authority or power to make an appointment makes the appointment, then the appointee cannot claim right to be continued in service.
11. We have heard learned counsel for both sides and have perused the documents on record. The appellants herein, original petitioners, were appointed in service of the respondent- Municipality in pursuance of the advertisement dated 17.09.1995 published in a local daily, named, "Jayhind". The rules regarding recruitment and terms and conditions of service of staff members of the Municipality are governed by the rules titled "Model Rules for recruitment and conditions of service of employees of Viramgam Municipality" (for short, "the Rules"). The said Rules were accorded sanction by the Director of Municipalities, Government of Gujarat, vide order dated 07.02.1984.
12. It is undisputed that the recruitment and / or terms and conditions of service of employees of the respondent-Municipality is governed by the Rules. Rule-7 of the Rules pertain to Page 13 of 25 C/LPA/329/2007 JUDGMENT "Appointment by Direct Recruitment". It reads as under;
"7. Appointment by Direct Recruitment:-
(1) When appointment to a Post is required to be made by direct recruitment, the Municipality shall, if the vacancy in respect of such post is likely to exceed two months, invite applications by announcing the same in at least two Gujarati news-papers having wide circulation in the area. Such announcement in the news-papers shall state the qualifications required to be possessed by the candidates and the numbers of posts to be filled in.
(2) Where a qualifying written examination for recruitment is prescribed by rules, the selection committee shall hold the examination of the candidates who possess the requisite qualifications and are prima facie eligible. The selection committee shall hold the interview of such of the candidates as may be qualified in the recruitment examination according to the standard laid down in such rules.
Provided that in any case where the Page 14 of 25 C/LPA/329/2007 JUDGMENT number of candidates qualified in the written examination is substantially larger than the number of vacancies, the selection committee may call for interview of such limited number of candidates who have qualified in the written examination in order or merit according to the percentage of marks obtained in such examination having regard to the number of vacancies to be filled in."
[emphasis supplied]
13. A plain reading of sub-rule (1) goes to show that if an appointment is to be made by way of Direct Recruitment, then an advertisement in that regard has to be published at least in "two" Gujarati local news-papers having wide circulation in the area. It is also provided that such advertisement shall state the educational qualifications, etc. required to be possessed and also the total numbers of Posts to be filled in.
14. In the present case, it is a matter of fact that the advertisement in question dated 17.09.1995 was published only in one vernacular local daily, named, "Jayhind". Further, the advertisement also did not contain details regarding the total number of posts to be filled in, name of posts and other details. It also did Page 15 of 25 C/LPA/329/2007 JUDGMENT not contain details regarding educational qualifications, age criteria, etc. required for applying to the Posts.
15. Similarly, sub-rule (2) requires that the Selection Committee should hold "written examination" of the candidates who are found to be eligible. The proviso to sub-rule (2) of Rule- 7 provides that Selection Committee may call a limited number of candidates for Interview on the basis of marks attained in the "written examination". We find that sub-rule (2) of Rule-7 has been breached in this case inasmuch as no such "written examination" was conducted by the Municipality before granting appointments to the appellants. The appellants herein never underwent any such "written examination". The appellants straight-away appeared before the Interview Committee and were selected.
16. The Interview held by the Selection Committee, before which the appellants appeared, was also without authority of law and was an eye- wash to say the least. Rule-8 of the Rules provide that suitability of a candidate called for interview shall be assessed by the Selection Committee on the basis of the result of "written examination". In the present case, it is not in dispute that the appointment of the appellants Page 16 of 25 C/LPA/329/2007 JUDGMENT was by way of "direct recruitment" and the Rules provide that in appointments by way of "direct recruitment", "written examination" is to be conducted. Admittedly, in the instant case, no such "written examination" was conducted by the respondent-Municipality. Therefore, the so-called "Interview" conducted by the Selection Committee is a nullity since the candidates who were selected never underwent any "written examination", as prescribed under the Rules. Further, on perusal of the document at Annexure- X, which is the Minutes of the Selection Committee Meeting dated 06.10.1996, it is clear that candidates, viz. the appellants herein, who were selected by the Selection Committee, happened to be in the employment of the Municipality on different posts on temporary / daily wage basis at the relevant point of time. Therefore, the Interview held by Selection Committee on 06.10.1996, in which the appellants were declared successful and which, subsequently, led to the issuance of the orders of appointment, is bad in law.
17. Under the provisions of Section 258 of the Act, the District Collector has powers to suspend execution of any order or resolution of a municipality, if such order or resolution is likely to cause injury or annoyance to public or Page 17 of 25 C/LPA/329/2007 JUDGMENT leads to a breach of peace or is unlawful. The powers of the Collector have been succinctly explained by the Full Bench of this Court in Parshottambhai G. Chavda v. State of Gujarat, 1998(1) GLH 519 wherein, it has been held that Collector would still have jurisdiction u/s.258 of the Act, if it is found that the Resolution passed by a Municipality is illegal and unlawful, even after its implementation.
17.1 In the present case, the respondent-Collector found several anomalies in the recruitment process undertaken by the Municipality in pursuance of the advertisement dated 17.09.1995. In respect of each of the individuals, the respondent-Collector carried out detailed investigation and found the following anomalies;
(a) Appellant no.1 happened to be a relative of the then Chairman of the Selection Committee of the respondent-Municipality and he was appointed by ignoring the back-log daily wagers who were senior to him.
(b) Appellant no.2 was found to be a resident of some other District and he was appointed in contravention of the terms and conditions of selection process.
Page 18 of 25 C/LPA/329/2007 JUDGMENT
(c) Both appellants no.3 & 4 had been
declared "unqualified" as daily wagers by the then District Collector. However, the said aspect was ignored by the Selection Committee.
(d) Appellant no.5 happened to be a close relative of the Board Member of the respondent-Municipality that appointed him.
(e) Appellants no. 6 & 7 were given
appointment ignoring the back-log daily
wagers who were senior to him.
(f) Appellant no.8 happened to be a close relative of the then Board Member of the respondent-Municipality.
18. In view of the above disqualifications, it was incumbent upon the respondent-Collector to set aside the Resolution dated 06.10.1996 approving the appointments of the appellants. The appellants were appointed in complete disregard of the Rules of the respondent-Municipality and the appointment was shrouded under the blanket of corruption and misdemeanor. We also find that no prior sanction of the State Government was obtained by the respondent-Municipality u/s.50 of the Act before granting appointments to the Page 19 of 25 C/LPA/329/2007 JUDGMENT appellants.
19. From the very beginning, the appointments of the appellants was marred by irregularities, which is evident from the following sequence of events;
(1) The Rules of recruitment of the respondent-Municipality provide that an advertisement of recruitment is to be published in at least two vernacular news- papers having wide circulation. However, the advertisement dated 17.09.1995 was published in only one vernacular news-paper, named, "Jayhind". It appears that the said local daily had a very limited circulation.
(2) The advertisement did not contain any details whatsoever regarding the total number of posts, name of posts, category-wise distribution of posts, educational qualifications, age criteria, etc. None of the above specifics found place in the advertisement issued by the respondent- Municipality.
(3) No written examination was conducted by the Selection Committee before asking the candidates to attend the Interview. Straight-
Page 20 of 25 C/LPA/329/2007 JUDGMENT
away, Interview was held and thereafter,
orders of appointments were issued.
20. During the selection process, none of the Rules were followed or adhered to by the Selection Committee leave aside strict compliance. The ill-intention of the Selection Committee is evident from the fact that though the Rules prescribed publication of advertisement in "at least two vernacular news-papers", the advertisement was published in only one vernacular local daily, named, "Jayhind" though it was not having wide circulation. The advertisement, as it appears to the naked eye, leads one to believe that conscious effort was made to see that advertisement receives minimum attention and comes within the knowledge of least number of candidates. The said aspect is fructified by the fact that in all only 140 candidates were interviewed by the Selection Committee for all category of posts.
21. We also find that the order of appointment issued by the respondent-Municipality is without jurisdiction. In matters of appointments, power is vested with the Chief Officer of the Municipality. The Chief Officer is vested with the executive powers of a Municipality u/s.44(2) of the Act. The Circular dated 02.08.2000 issued Page 21 of 25 C/LPA/329/2007 JUDGMENT by the Government of Gujarat has reiterated the position of law that the ultimate authority to issue appointment orders of the employees of Municipality is the Chief Officer.
21.1 In the instant case, evidently, the orders of appointment have been issued by the President of respondent-Municipality, which is contrary to the provisions of the Act. The principle rendered by the Division Bench of this Court in Manoj Nagardas Panchhiwala's case (supra) would squarely apply to the present case since the appointment of the appellants herein is found to be made by an officer not authorized to issue the orders of appointment. Looking to the facts and circumstances of the case, we are of the considered opinion that the respondent-Collector has not committed any error or illegality in quashing and setting aside the Resolutions no.1 to 4 dated 06.10.1996 of the Selection Committee.
22. Learned counsel for the appellant prayed to grant the benefit of decision rendered in M.L. Kesari's case (supra) to the appellants. We are afraid to say that the appellants could not be granted benefit of the above decision in view of the fact that they were continued in service by the orders of the Court. The appellants were appointed in service in 1996, which was set aside Page 22 of 25 C/LPA/329/2007 JUDGMENT by the Collector in 1997, against which the appellants, original petitioners, had preferred the captioned writ petition. In the writ petition, on the basis of interim relief granted by the learned single Judge, the appellants were continued in service.
23. In para-53 of the judgment rendered by Apex Court in Secretary, State of Karnataka and others v. Umadevi (3) and others, (2006) 4 SCC 01, it has been observed as under;
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in light of the principles settled by this Court in the cases above-referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure Page 23 of 25 C/LPA/329/2007 JUDGMENT that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed...."
24. Considering the principle rendered in Umadevi's case (supra), we are of the view that the appellants could not claim regularization of their services since they have been rendering service under cover of the orders of the Court. In our opinion, the learned single Judge cannot be said to have travelled beyond the scope of writ petition since the appointment of the appellants was the subject matter of writ petition and it was well within the jurisdiction of the learned single Judge to consider each and every aspect related thereto since their appointment was found to be made in complete breach of the relevant Rules and by resorting to corrupt practices. We are in complete agreement with the view taken by the learned single Judge and therefore, find no reasons to entertain this appeal.
25. For the foregoing reasons, the appeal is dismissed. Interim relief stands vacated.
(K.S.JHAVERI, J.)
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C/LPA/329/2007 JUDGMENT
(A.G.URAIZEE,J)
FURTHER ORDER
At this stage, learned counsel Mr. Patel
requested to continue the interim relief for a period of six months. Considering the facts and circumstances of the case, interim relief granted earlier is ordered to continue for a further period of Three Months from today.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) Pravin/* Page 25 of 25