PANDIT BALKRISHNA CHAVAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE Petitioner joined services of Respondent no. 3 as Works Manager. On 30. 10. 1992 petitioner was appointed to the post of Additional Transport manager. That order came to be challenged before this Court in Writ Petitioner No. 4791 of 1992. Various interim applications were also moved is that petition. Record would show that they were rejected. The Petition itself came to be thereafter dismissed as withdrawn. The State government thereafter in exercise of its powers under Section 451 of the Bombay Provincial municipal Corporation Act, 1949 (hereinafter referred to as "act") by Resolution no. KMC-3094/209/sub No. 50/94/od-25 dated 16th june, 1999 set aside the resolution of the corporation appointing petitioner as Additional transport Manager. That and an other resolution of respondent No. 3 is the subject matter of the present petition.

(2.) AT the hearing of this petition, on behalf of the Petitioner various grounds have been raised to challenge the said order of the first respondent. Some of the grounds urged and which Mould be relevant would be grounds (3), (6), and7) and (9) of the petition. The grounds may be summarised as under : (1) The action of Respondent No. I in setting aside the resolution of general body of the kolhapur Municipal Corporation and of the transport Committee by taking recourse to section 453 of the Act or the face of the record is illegal, null and void. (2) A reading of Section 45 of the Act cold clearly show that the provisions of Section. 451 are not at all applicable as in the present case and consequently the action of respondent is arbitrary and or a colourable exercise of power, and (3) The reasons given for setting aside the resolution would be clearly contract to section 451 itself as there was no violation of the provisions of the Act and of the rules by Respondent No. 3. On that count also the impugned order is liable to be set aside.

(3.) ON behalf of the Respondent No. 1 an affidavit has been filed by Mr. B. S. Gujare, Deputy secretary) Government of Maharashtra, urban development Department. It is set out that the post of Additional Transport Manager is statutory post and hence, sanction to the appointment of the said post is required as per the provisions of section 40 (1) of the Act. It is further set out that right from the creation of the said post. it has been filled in by deputation after approval of the State Government. It is further set out that the Kolhapur Municipal Corporation by resolution dated 18. 6. 1988 had requested the State Government to fill in the said post of Additional Transport manager by deputation. At this state itself it may be pointed out that by Resolution No. 229 dated 14. 10. 1773 the Transport Committee has noted that the General Body had resolved to cancel the demand (Exh. E ). The qualification for appointment to the post of Additional Transport Manager it is submitted is a degree. The Petitioner is holding diploma and therefore, not eligible to be appointed to the said post. It is then pointed out that kolhapur Municipal Corporation by resolution No. 109 dated 14. 5. 1991 relaxed the qualifications required for appointment to the post of Additional transport Manager. The resolution was approved by the General Body by passing further resolution No. 35 dated 20. 7. 1771. It is then pointed out that the Municipal Corporation also passed resolution no. 227 dated 14. 10. 1993 whereby it cancelled the earlier resolution with a request to the Government to fill in the post of Additional Transport Manager by deputation. The resolution is approved by the general body by passing another resolution No. 1189. It i5 also set out by resolution No. 260 respondent No. 3 had recommended name of the petitioner for appointment to the post of additional Transport Manager. Considering that post is statutory post, in exercise of the powers under Section 451 it was decided to cancel aforesaid resolution as it pertains to a statutory post and as the decision of the Respondent No. 3 to relax educational qualifications is without any basis and cannot be sustained without the approval from the State Government. It is then set out that reliance is wrongly placed by the petitioner on resolution dated 16. 4. 1974. For the aforesaid reasons and as according to Respondent No. 1 the department has not received representations from respondent No. 3 and as subsequently they have passed further resolution letter received from the transport committee was not acted upon by the government.