SHAH RAMANLAL SOMCHAND Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a petition by one tax payer of the Ahmedabad Municipal Corporation (hereinafter referred to as the Corporation). The petitioner challenges the appointment of the respondent No. 3 one M. J. M. Shah as the Deputy Municipal Commissioner of the Corporation. The respondent No. 1 herein is the State of Gujarat which is impleaded as a party respondent because the appointment of the respondent No. 3 as the Deputy Municipal Commissioner was accorded approval by the State Government under certain provisions of the Bombay Provincial Municipal Corporations Act 1949 (hereinafter referred to as the Act for the sake of convenience).

(2.) A few facts require to be stated. The petitioner claims to be a one time Municipal Corporator and presently a voter for the municipal elections. He is an ordinary resident within the municipal limits of the Corporation and being a vigilant citizen he claims to be interested in the fair administration of the second respondent Corporation which rightly according to him is to act within the framework of law. The third respondent was in the Municipal employment since 10th September 1968. Prior to his appointment as the Deputy Municipal Commissioner he was the Assessor and Tax Collector of the Corporation. Ever since 1961 the post of the Deputy Municipal Commissioner was created by the Corporation with the approval of the State Government as per the powers vested in the Corporation under sec. 45(2) of the Act. As a matter of facto one Mr. M. A. Panchal the Deputy Municipal Commissioner had resigned his office with effect from 1-11-1978. The Municipal Commissioner therefore made his proposal by his letter dated 24-1-1979 requesting the Standing Committee of the Corporation to fill in on a permanent basis the said post that had fallen vacant on account of the resignation of Mr. Panchal. As per sec. 45(5) of the Act the Corporation was required to fill in this office within four months from the date on which the vacancy occurred. The Commissioner in his report at page 28 surveyed the situation of work and the past history and practice of selection on earlier occasions. One Mr. Anandi Thakore and one Mr. Patel even though those of departmental promotees did not possess requisite second class degree for being promoted to the officer of the Deputy Municipal Commissioner and the auditor which it is open to the Corporation under proviso appended to Rule 2 in Chapter III of the Schedule A appended to the Act and styled as Method of Appointment of certain Municipal Officers and Servants and their Duties and Powers to fill in out of departmental employees

(3.) Accepting the recommendation of the Commissioner the Standing committee passed a resolution on 7-2-1979 selecting the Respondent No. 3 as the would be Deputy Municipal Commissioner and the general board of the Corporation passed the confirming resolution on 30-3-1979 (vide pages 37 and 38 of the petition). The Commissioner wrote to the State Government on 4-4-1979 seeking confirmation of the said proposal. The State Government approved the action on 2-8-1979 for a period of six months in the first instance and waived the requirement of the second class degree of a recogoised university (vide page 16). On 7-8-1979 the respondent No. 3 took charge of the office and when the question arose for further extension as per the Commissioners letter dated 15-1-1980 the present special civil application came to be filed on 4-2-1980 before the expiry of the respondent No. 3s six months period on 7-2-1980. This Court admitted the matter on 25-2-1980 and restrained the respondent No. 3. from acting as the Deputy Commissioner.