Gujarat High Court
Karamsad Municipality Through Chief ... vs Amratbhai Mohanbhai Harijan on 1 April, 2013
Author: Jayant Patel
Bench: Jayant Patel
KARAMSAD MUNICIPALITY THROUGH CHIEF OFFICER....Appellant(s)V/SAMRATBHAI MOHANBHAI HARIJAN
C/LPA/469/2013
ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL
NO. 469 of 2013
In
SPECIAL CIVIL APPLICATION NO. 1535 of 2012
With
LETTERS PATENT APPEAL
NO. 448 of 2013
In SPECIAL CIVIL
APPLICATION NO. 1536 of 2012
TO
LETTERS PATENT APPEAL
NO. 468 of 2013
In SPECIAL CIVIL
APPLICATION NO. 1556 of 2012
With
CIVIL APPLICATION NO.
3472 of 2013
In LETTERS PATENT
APPEAL NO. 469 of 2013
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KARAMSAD MUNICIPALITY
THROUGH CHIEF OFFICER....Appellant(s)
Versus
AMRATBHAI MOHANBHAI HARIJAN
& 22....Respondent(s)
================================================================
Appearance:
MR
DEEPAK P SANCHELA, ADVOCATE for the Appellant(s) No. 1
MR
TR MISHRA, ADVOCATE for the Respondent(s) No. 1
MR DHAWAN JAYSWAL AGP for Respondent No.23 in LPA 469 of 2013 &
CA 3472 of 2013 and for respondent No.2 in LPA 448 to 468 of 2013
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CORAM:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE MOHINDER PAL
Date : 01/04/2013
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. As common questions arise in all these appeals, they are heard and considered simultaneously. All the appeals are directed against the common order dated 06.11.2012 passed by learned single Judge in the respective special civil applications, whereby learned single Judge has directed the Municipality to grant the benefit of minimum time-scale of the post of sweeper to the petitioners with subsequent revision as per the 6th Pay Commission within the prescribed time-limit.
2. We have heard Mr.Sanchela, learned counsel appearing for the appellant, and Mr.Mishra, learned counsel appearing for the respondents upon advance copy.
3. It has been contended by learned counsel Mr.Sanchela that resolution dated 08.01.2001 of the General Body of Municipality, based on which letters were issued for permanent appointments, were without authority of the General Body, inasmuch as without sanction of the Director of Municipalities or of the State Government, such could not have been done. He also submitted that for filling up of the posts of sweepers, a Selection Committee was required to be constituted and, after interview and regular selection process, one can be appointed on permanent set up. He submitted that such procedure was not followed at the time when the General Body of Municipality passed the resolution and, therefore, learned single Judge ought not to have issued the direction as prayed in the petition.
4. Whereas learned counsel Mr.Mishra, appearing for the respondents, stated that the concerned sweepers, who are respondents herein-original petitioners, are working since about 20 to 25 years as daily-rated employees against permanent posts. There are 34 such permanent posts. He submitted that, not only that but on 10.01.2001, all the original petitioners were issued orders for their absorption on permanent basis. Thereafter the Municipality was required to pay regular pay-scale of sweepers and since it was not paid, petition was preferred. Learned single Judge has found that the petitioners were appointed on permanent posts and, in any case, they are in service since more than ten years, therefore, the relief has been granted.
5. In our view, as such the present appeals cannot be maintained on behalf of the Municipality by its Chief Officer, inasmuch as the Chief Officer has no power to act in contravention to the decision of the General Body of Municipality. As per section 49 of the Gujarat Municipalities Act, Chief Officer has to take steps for giving effect to all the decisions or resolutions of the Municipality. Power of Municipality vests to the General Body, subject to the supervisory power of the District Collector or the State Government, as the case may be. It is an admitted position that the concerned original petitioners had applied for regularization of their service as back as in the year 2000. It is also and admitted position that pursuant to the said applications of the original petitioners concerned, they were considered by the General Body of Municipality in its meeting held on 08.01.2001 and vide resolution No.227, it was unanimously resolved to regularize their services from 01.02.2001. It is not the case of the appellant that the said resolution of the General Body of Municipality was suspended by the Collector or the State Government under any provision of the Municipalities Act, nor is it the case of the appellant that the said resolution of the General Body of Municipality is set aside by any higher forum known to law. Not only that but based on the said resolution, appointments were also issued vide letter dated 10.01.2001 for making the concerned persons permanent with effect from 01.02.2001. Once resolutions were passed by the General Body of Municipality and they were acted upon, it would not lie in the mouth of the Chief Officer of the Municipality to contend that the General Body had no authority to pass such resolution. Apart from that, even if the matter is further considered on merits, it does appear that pursuant to the resolution of the General Body of Municipality, services of all the original petitioners were regularized as sweepers. There are 34 sanctioned posts of sweepers and as against the same, the number of petitioners are 23. Therefore, once a person is appointed on permanent basis, the Municipality is required to pay salary as per the prescribed pay-scale. Since the same was not done, learned single Judge has directed accordingly.
6. An attempt was made by learned counsel Mr.Sanchela, appearing for the appellant, to contend that as per the view taken by this Court in case of Manoj Nagardas Panchhwala v. State of Gujarat reported at 2004 (1) G.L.R.846, President of the Nagarpalika or its General Body had no power or jurisdiction to offer appointment and, therefore, it was submitted that decision of the General Body would be rendered illegal. Had it been the case where challenge to the said decision was by the party other than an officer of the Municipality, it might stand on a different footing. But, in the present case, such challenge comes from the mouth of the Chief Officer, who is an officer of the Municipality. Further, the resolution of the General Body for absorption on permanent basis is acted upon since 2001 and all the original petitioners are continuing in service since then. Such being the different fact-situation, the said decision is of no help to the appellant.
7. Under the above circumstances, we find that no case is made out for interference. Hence, all the appeals are dismissed. In view of dismissal of the main appeals, the civil application would not survive. It accordingly stands dismissed.
( JAYANT PATEL, J.) ( MOHINDER PAL, J.) (KMGThilake) Page 5 of 5