SONU SAMPAT SHEWALE Vs. JALGAON BOROUGH MUNICIPALITY

JUDGEMENT

(1.) THIS is a petition filed by two elected Councillors of the Jalgaon Borough Municipality, challenging a resolution of the municipality appointing respondent No. 2 as a Chief Officer of the municipality for a period of two years.

(2.) A few facts must he stated. The municipality has 35 Councillors, out of whom some 16 Councillors resigned in February 1956, on the issue of Sam -yukta Maharashtra. In the vacancies caused by these resignations, bye -elections were held on May 18, 1956, and the results of the elections were declared on May 20, 1956. They were, however, gazetted only on June 8, 1956. Now, it appears that respondent No. 2 was the Chief Officer of the said municipality and under the Rules of the municipality relating to superannuation he was to retire upon attaining the age of 55 years, that is, from September 1, 1956. The relevant rule, however, provided that he could be retained in service after superannuation by a three -fourths majority of the whole number of Councillors on public grounds. On May 19, 1956, the Chief Officer wrote a letter to the President of the municipality pointing out that he was due to retire and could be retained in service under the said rules and also pointing out that under the existing conditions of the municipality it may not be possible to retain him under the rule by a majority of three -fourths of the whole number of Councillors. He, therefore, requested that he should be granted re -employment in the post of Chief Officer on his present pay and a three years' contract of service may be given to him under Section 48 of the Bombay Municipal Boroughs Act on terms and conditions under which he was appointed. It is to be noticed that this letter was written a day after the bye elections were held. In consequence of this letter, it appears that the President called a meeting of the municipality and the letter was considered at a meeting on May 31, 1956. The minutes of this meeting, which have been produced, show that this itself was an adjourned meeting as an earlier meeting could not take place for want of a quorum; but that is not a matter of any importance. At this meeting, 11 Councillors were present and they unanimously passed a resolution which recited the history of the appointment of respondent No. 2, the work he had done, his qualifications and also the fact that he was due to retire on September 1, 1956. It then stated that upon his retirement it would be necessary to appoint a new Chief Officer; but having regard to certain projects which the municipality had undertaken and proposed to undertake and the large outlay which these projects would involve and the necessity of having a competent person to supervise these projects, the resolution expressed doubt as to how far public interest would be served by appointing a new Chief Officer. The resolution then stated that having regard to all these facts and on the ground of safeguarding the public interest, it was necessary and expedient to appoint respondent No. 2 as Chief Officer, and therefore, a contract under Section 48 of the Municipal Boroughs Act should be entered into with him for a fresh appointment for a period of two years from September 1, 1956, on his the then salary and upon the same conditions of service as he had at the time. It will be noticed that this meeting was held and the resolution passed with knowledge that elections to 16 seats had been held and the results declared and the Councillors elected at these elections could not be present at this meeting as their names had not been gazetted as required by the rules. It appears that thereafter the President of the Jalgaon Borough Municipality passed an order of appointment on August 29/31, 1956, in terms of the resolution. Thereafter on September 10, 1956, the President made a report to the General Body that it was necessary to amend the resolution passed at the meeting of May 31, 1956, because, in his opinion, it was essential to invite tenders for doing the work of a Chief Officer under Section 50 of the Municipal Boroughs Act, and since no tenders had been invited, the resolution should incorporate the reasons for not inviting tenders and making an appointment without inviting tenders. A meeting of the municipality held on September 17, 1956, considered this report. At this meeting some of the Councillors elected at the bye -elections were present and attempted to move a number of amendments. The President ruled them all out of order and the resolution amending the original resolution by dispensing with the invitation of tenders was passed by 17 votes against 11. Thereafter, on January 29, 1957, 17 Councillors of the said municipality addressed a requisition to the President that the question of legality of this appointment should be placed for consideration on the agenda of the meeting which had been convened for February 13, 1957. The President refused to place this matter on the agenda. In the meantime, on September 14, 1956, 11 Councillors wrote to the Director of Local Authorities to take action under Section 214 of the Bombay Municipal Boroughs Act suspending the execution of the order appointing respondent No. 2. A reply was received on September. 17, 1956, stating that the application had been forwarded to the Collector and action would be taken on it 'in due course'. On two subsequent occasions, namely, November 10, 1956, and February 14, 1957, reminders were sent to the Director of Local Authorities, but no reply was elicited and none has been elicited right up to date.

(3.) WE will presently turn to the relevant provisions of the Act and the rules; but we wish to state at the outset that as a result of scrutiny of the relevant provisions of the Act and the rules, it appears to us that assuming that there was power in the municipality to appoint a person after superannuation either temporarily under Section 33 or to give him a contract of service under Section 48, such power is subject to an age -limit imposed by the rules for the purpose of recruitment; and since the age -limit has not been observed in this case, the appointment is beyond the authority of the municipality and ultra vires of the municipality. This is a pure question of law which arises on the facts proved and upon a consideration of the relevant sections of the Act and the rules; and although, therefore, it has not been specifically raised on the petition, it has been canvassed at the Bar and we propose to deal with it in due course.