Gujarat High Court
Trivedi Amthalal Laljibhai vs Collector Banaskantha & on 2 August, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/6870/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6870 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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 or any order made thereunder ?
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TRIVEDI AMTHALAL LALJIBHAI....Petitioner(s)
Versus
COLLECTOR BANASKANTHA & 1....Respondent(s)
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Appearance:
MR DILIP B RANA, ADVOCATE for the Petitioner(s) No. 1
MR. PARIKH, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1
MR MEHUL H RATHOD, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 02/08/2016
ORAL JUDGMENT
1. By this writ application under Article 226 of the Page 1 of 8 HC-NIC Page 1 of 8 Created On Sat Aug 06 01:53:43 IST 2016 C/SCA/6870/2002 JUDGMENT Constitution of India, the writ applicant, a retired employee of the Tharad Nagarpalika, has prayed for the following reliefs;
"(A) the Hon'ble Court be pleased to issue a writ of certiorari, or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 16.4.2002, at Annexure-A to the petition, passed by the Collector, and be pleased to restrain the respondents from reverting the petitioner from the post of Overseer;
(B) The Hon'ble Court be pleased to direct the respondent authorities to pay the salary and other benefits in the grade of Rs.1350-2200, applicable to the post of Overseer, with arrears of back wages, to the petitioner, from the date of his promotion to the post of Overseer until the date of payment;
(C ) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to stay the execution, implementation and operation of the order dated 16.4.2002 passed by the respondent No.1 herein, which is at Annexure-A in any manner whatsoever, and the petitioner may be allowed to perform the duty of Overseer, pursuant to the appointment order dated 8.5.2001;
(D) Your Lordships be pleased to restrain the respondent Nagarpalika from appointing any other person on the post of Overseer/Civil Engineer till the disposal of this petition;
(E) Your Lordships be pleased to pass such other orders as may be deemed just and proper in the circumstances of the case."
2. The case of the writ applicant may be summarized as under;
2.1 On 16th March, 1973, the writ applicant was appointed as the Bore Operator on monthly salary by the then Gram Panchayat.
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2.2 On 1st April, 1980, he was made permanent in the service as the Bore Operator.
2.3 In the year 1982, the writ applicant was posted as a peon, as the post of the Bore Operator came to be abolished.
2.4 On 1st April, 1987, the writ applicant was promoted as the Clerk (Technical Karkoon) and was posted in the construction department.
2.5 On 24th July, 2000, the State Government issued a notification with regard to the appointment rules of the Overseer (Class-III) (Panchayat Service) 2000.
2.6 On 19th August, 2000, a meeting of the General Body of the Nagarpalika was convened, and by resolution No.6/11, it was resolved to promote the writ applicant to the post of the Overseer.
2.7 On 8th May, 2001, the writ applicant was promoted to the post of the Overseer pursuant to the resolution referred to above and was put in the pay scale of Rs.1350-2200/-.
2.8 On 6th June, 2001, the Collector, Banaskantha, in exercise of its powers under Section 258 of the Gujarat Municipalities Act, 1963, cancelled the resolution by which the writ applicant was promoted to the post of the Overseer. The writ applicant, being dissatisfied, challenged the order passed by the Collector by filing the Special Civil Application No. 4985 of 2001. The Special Civil Application No.4985 of 2001 came to be allowed in the following terms;
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"Heard learned advocate Mr. D.B. Rana for the petitioner; Ms. Shraddha Trivedi, learned AGP for respondent No. 1 and Ms. Shah for Mr. Mehul Rathod for respondent No.2.
Rule, service of which is waived by Ms. Trivedi, learned AGP for respondent NO. 1 and Ms. Shah, learned advocate appearing for Mr. Rathod for respondent No.2. In the facts and circumstances of the case and also with the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.
By way of this petition, the petitioner has challenged the impugned order dated 6.6.2001 whereby the respondent No.1 has cancelled the resolution No. 6/11 dated 19.8.2000 passed by the respondent No.2 has been favour of the petitioner. Learned advocate Mr. Rana appearing for the petitioner has submitted that the said resolution dated 19.8.2000 passed by the respondent No.2 in favour of the petitioner has been cancelled by the respondent No.1 without affording any opportunity of hearing whatsoever and, therefore, same is contrary to the principles of natural justice and is liable to be quashed and set aside on that ground alone. He has placed reliance on the decision of this court in case of Vasantilal Ramanlal Kansara versus Viramgam Municipality and others reported in 1995 (2) GLH 436 and has submitted that in the said decision also, beneficiary of the resolution passed by the Municipality concerned was not heard by the Collector before cancelling the resolution passed by the Municipality and, therefore, following the ratio of the decision in case of H.H. Parmar v. COllector, Rajkot and Another reported in 20(2) GLR, 97, the order passed by the Collector was set aside on that ground alone. According to him, in this case also, the beneficiary of the resolution passed by the Respondent No.2 has not been heard by the Collector before cancelling the resolution dated 19th August, 2000 whereby the beneficiary namely petitioner herein was promoted to the post of Overseer. He has submitted that as a result of the order dated 6th June, 2001 passed by the Collector, the petitioner has been reverted to the post of Technical Assistant and, therefore, the petitioner ought to have been heard by the respondent Collector before passing the order dated 6th June, 2001 and, therefore, this petition is required to be allowed by quashing and setting the said order dated 6th June, 2001 Page 4 of 8 HC-NIC Page 4 of 8 Created On Sat Aug 06 01:53:43 IST 2016 C/SCA/6870/2002 JUDGMENT on that ground alone.
On the other hand, Ms. Trivedi, the learned AGP appearing for respondent No.1 Collector has submitted that the impugned order dated 6th June, 2001 was passed by the Collector in exercise of the powers under sec. 258 of the Gujarat Municipalities Act and under Sec. 258 of the Act, the only party which the Collector is bound to hear is the Municipality and, therefore, this Court should not entertain this petition.
Considering the submissions made by the learned advocates for the parties and also considering the averments made by the petitioner in the memo of petition, I am of the view that it is clear that the petitioner who is the beneficiary of the resolution dated 19th August, 2000 was not heard by the COllector before cancelling the said resolution by order dated 6th June, 2001. In light of these facts, the observations made by this Court in case of Vasantilal Ramanlal Kansara (supra) are material. Following the ratio of the decision in case of H.H. Parmar v. COllector, Rajkot reported in 20(2) GLR 97, this Court has held as under :
"3. The only contention which was canvassed at the hearing of this petition was that though the Resolution of the Municipality which was passed in favour of the petitioner was set aside, the petitioner was not heard by the Collector in the matter.
5A. The aforesaid ratio of the decision of the learned Single Judge in special civil application no. 548 of 1972 is in clear conflict with the ratio of the decision of the Division Bench rendered in the case of H.H. Parmar (supra) which lays down that in the case where the benefit is given to a third party under the Resolution of the Municipality, it was incumbent on the part of the authority to give a reasonable opportunity of being heard to such a beneficiary. In this view of the matter, the decision of the learned Single Judge in Special Civil Application No. 548 of 1972 in the case of Pratapsing (supra) is no longer a good law.
6. As the petitioner was entitled to be heard before the Collector could make an order under section 258(1) of Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Aug 06 01:53:43 IST 2016 C/SCA/6870/2002 JUDGMENT the said Act suspending the resolution under which the petitioner was a beneficiary, the impugned order of the Collector having been passed without hearing the petitioner cannot be sustained. The impugned order is, therefore, set aside and the Collector is directed to decide the matter afresh in accordance with law under section 258(1) of the Act after giving an opportunity of hearing to the petitioner. The Collector shall take a decision as expeditiously as possible. Rule is made absolute accordingly with no order as to costs."
Therefore, considering the decision of this Court in case of Vasantilal Ramanlal Kansara (supra), since the petitioner herein has also not been heard by the Collector before passing the order dated 6th June, 2001, the order dated 6th June, 2001 passed by the Collector is required to be quashed and set aside on that ground alone with a liberty to the Collector to pass the appropriate order in accordance with law under section 258(1) of the Act after giving reasonable opportunity to the petitioner.
The impugned order dated 6th June, 2001 passed by respondent No. 1 Collector is, therefore, quashed and set aside and the Collector is directed to decide the matter afresh in accordance with law under section 258(1) of the Act after giving an opportunity of hearing to the petitioner. The Collector shall take a decision as expeditiously as possible but not later than three months from the date of receipt of copy of this order. Rule is made absolute accordingly with no order as to costs."
2.9 Pursuant to the order passed by this Court referred to above, the writ applicant appeared before the Collector. The Nagarpalika also appeared before the Collector and made its submissions. The Collector, once again, by an order dated 16th April, 2002, declared the resolution No.6/11 dated 19th August, 2000 as illegal. In such circumstances, the writ applicant had to once again come before this Court by way of the present writ application.
3. None of the respondents have filed any affidavit-in-reply.
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Today, a request is being made by the learned AGP appearing for the State Government that he would like to file the affidavit-in-reply. The request is declined. It is not proper for the State Government to file affidavit-in-reply after a period of 14 years.
4. On 17th September, 2002, the following order was passed;
"Heard Mr Rana for the petitioner and Mr Mehul Rathod for respondent No. 2. Mr RV Desai, learned AGP states that he has not received instructions from the Collector.
2. There is no dispute about the fact, which is also apparent from the Collector's impugned order dated 16.4.2002, that the Rules applicable to the post of Overseer are the statutory Rules contained in the Government Notification dated 24.7.2000. As per the said Rules, a person who has rendered services as work assistant Class-III for atleast 5 years and has proved merit and efficiency and has passed such professional or departmental or any other examination as may be prescribed by the Government can be promoted to the post of Overseer Class-III. The Collector has passed the impugned order under Section 258 of the Gujarat Municipalities Act on the ground that the petitioner does not possess the educational or departmental qualification for promotion to the post in question.
3. Mr Rana, learned counsel for the petitioner points out the order dated 1.4.1996 (Annexure "B") of the Tharad Nagarpanchayat (Municipality) promoting the petitioner to the post of Technical Assistant and submits that in view of the said experience, the petitioner became eligible for promotion to the post of Overseer with effect from April, 2001 and, therefore, the order dated 8.5.2001 of the Administrator of the Tharad Municipality promoting the petitioner as Overseer was in accordance with law.
4. In view of the above submission, Rule. There shall be interim relief in terms of para 8(C). Direct Service is permitted."Page 7 of 8
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5. Thus, in view of the order passed by this Court referred to above, the impugned order was stayed from its operation, implementation and execution.
6. By a passage of time, the writ applicant has also retired from the service. He retired on 30th June, 2008. He has also received his retiral benefits on the basis that he retired from the post of the Overseer. In my view, no further adjudication on merits is required. It will be too much now at this point of time to affirm the order passed by the Collector and, more particularly, when the interim relief operated in favour of the writ applicant for all these years.
7. As a result of the aforesaid discussion, this writ application succeeds and is hereby allowed. The impugned order passed by the Collector, Banaskantha is hereby ordered to be quashed. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Aug 06 01:53:43 IST 2016