DINESHKUMAR G CHAVDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the legality and validity of the order passed by the Collector, Ahmedabad dated 15/25.4.1997 by which, in exercise of the powers under Section 258 (1) of the Gujarat Municipalities Act; 1963 the Collector, Ahmedabad has set aside the resolution Nos. 1 to 4 of the Selection Committee of the Viramgam Nagar Palika by which the respective petitioners were appointed/promoted.

(2.) It is the case on behalf of the petitioners that pursuant to the advertisement issued by the Viramgam Nagar Palika, all the petitioner applied for the post of Class - III and Class - IV and pursuant to such applications, all the petitioners were called for the oral interviews by the Selection Committee, which were held by the respondent - Municipality on 6th October, 1996 and that the Selection Committee held interviews for various posts in Class - III and Class - IV in the respondent No. 3 - Municipality on 6th October, 1996 and accordingly, the petitioner Nos. 1 to 3 belonging to the Scheduled Castes Community were appointed on the reserved posts as there was a backlog as Junior Clerk and the petitioner Nos. 4 and 5 were appointed as Cleaner-cum-Driver and petitioner Nos. 6 and 7 were appointed as Peons and the petitioner No.8 was appointed as Water Pump man. That on 10th October, 1996, all the petitioners were issued appointment orders in the respective posts and they joined their duties. That a past councilor - respondent No. 5 herein, whose brother was working with the Municipality, filed an application/appeal before the Collector on 10th October, 1996 requesting him to cancel the improper resolution, while exercising powers under Section 258 of the Gujarat Municipalities Act. It was contended on behalf of the said councilor / appellant that the resolution dated 6th October, 1996 issued by the respondent No.3 - Municipality was not in consonance with the legal provisions and that the Selection Committee had indulged in nepotism and corrupt practices and has selected their nearer and dearer one on the post of the Municipality. It was also submitted on behalf of the said councilor that the direct recruitment was made without the sanction of the Director of the Municipality or the State Government. Initially, the Collector, Ahmedabad passed an order dated 14th December, 1996 quashing and setting aside the resolutions passed by the Selection Committee and the appointments of the petitioners, however, as the said order was passed without giving opportunity to the petitioners and therefore, the petitioners preferred Special Civil Application No. 10563 of 1996 before this Court and the learned Single Judge of this Court vide its judgment and order dated 24.1.1997 allowed the said Special Civil Application and quashed and set aside the order passed by the Collector, Ahmedabad dated 14.12.1996 only on the ground that the said order was passed without hearing the petitioners and remanded the matter to the Collector, Ahmedabad. That thereafter, on remand and after giving an opportunity to all the concerned parties, the Collector, Ahmedabad passed the impugned order dated 15/25.4.1997 and set aside the aforesaid resolution Nos.1 to 4 of the Selection Committee and consequently the appointments of the petitioners by holding that the resolutions and the appointments are illegal and without obtaining the consent of the Directors of the Municipality/Competent Authority and that the same was in breach of the directions issued by the Director of Municipality and Deputy Secretary, Urban Development and Urban Housing Department, Gandhinagar. The Collector observed that it is also not proved that the Selection Committee of the Viramgam Nagar Palika while passing the aforesaid resolutions dated 6.10.1996 has acted in accordance with law, rules and regulations and therefore, the said resolutions are illegal. Consequently, the District Collector, Ahmedabad directed to restore the status-quo/position prior to the aforesaid resolution Nos.l to 4 dated 6.10.1996. Being aggrieved with the said order passed by the District Collector, Ahmedabad dated 15/25.4.1997 in cancelling/quashing and setting aside the resolutions Nos.1 to 4 of the Selection Committee of the Viramgam Nagar Palika dated 6.10.1996 and by further directing the Municipality to restore the position prevailing prior to the aforesaid resolutions, the petitioners have preferred the present special civil application under Articles 226 and 227 of the Constitution of India.

(3.) Shri I.S.Supehia, learned advocate appearing for the respective petitioners has vehemently submitted that the selection and appointments of the petitioners were made in accordance with law i.e. they were eligible and qualified in reserved and sanctioned posts as their appointments were made after issuing advertisement and after inviting applications and after proper selection. Relying upon the judgment of the Division Bench of this Court in case of H.H.PARMAR V/S. COLLECTOR, RAJKOT & ANOTHER REPORTED IN 1979 (2) GLR PAGE - 97, he has submitted that once the resolutions were implemented, the Collector could not have exercised powers under Section 258 (1) of the Gujarat Municipalities Act, more particularly, when the resolutions passed by the Municipalities are not unlawful. He has also further submitted that Section 50 of the Act would not apply since the posts were not created but they were filled in and that too to clear the backlog of the reserved posts. Shri Supehia has further submitted that the petitioners, except the petitioner No. 3, who has left, are working since October - 1996 under the orders of the Court and therefore, their services should not be now disturbed. Making the above submissions, he has requested to allow the present special civil application and to quash and set aside the impugned order passed by the Collector, Ahmedabad.