NARAYAN KESHAV DANDEKAR Vs. R C RATHI

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution for the issue of a writ of quo-warrato submitted by the petitioner who is a registered voter in the electoral roll maintained by the Municipal Corporation, Indore, owns House No. 13 in Jati colony Indore and is a tax-payer paying annual taxes to the Indore City Municipal corporation. The petition is directed against one Radha Krishna Champalal Rattii who nas oeen appointed as the Assessment and Estate Officer in the indore City municipal Corporation. Indore City Municipal Corporation is impleaded as the second opponent.

(2.) THE petitioner's case is that opponent Radha-Krishna Rathi had been employed in the Indore Municipality as a Personal Assistant to the Commissioner when the madhya Bharat Municipalities Act, 1954, was in force and was applicable to the city Municipality of Indore, on 28-10-1955 Madhya Bharat Municipal Corporation act of 1956 came into force and this Act was applied to the city of Indore on 3110-1956. Prior to this application and while the Madhya Bharat Municipalities Act, 1954, was in force the Municipal Council of the Indore Municipality passed a resolution on 10-10-1958 calling applications for posts of four Assessment officers for the Indore City Municipality as the assessment of the House-tax for the entire city was to be taken in hand. Opponent No. 1 Radhakrishna Rathi was one of the applicant and he was appointed as Assessment Officer on 29-10-1956 on a salary of Rs. 250/- per month with dearness allowance and an additional Conveyance allowance of Rs. 75a per month. His appointment was temporary and officiating. There was extension of his term from time to time upto 31-3-1959. There was however no change of designation nor any alteration in the temporary and officiating character of the post. On 9-12-1958 the Municipal Commissioner submitted certain proposals to the standing Committee of the Corporation. Amongst the said proposals was a proposal that there should be a permanent assessment section under the charge of an Assessment Officer to be designated as Assessment and Estate Officer and that this Officer should look after not only the business of assessment and reassessment but also should maintain a record and look after the immoveable properties of the Corporation and from time to time draw the attention of the engineering Department to any repairs etc. , which might appear necessary. In accordance with this proposal of the Commissioner a provision was made in the budget for the financial year 1959-60 in respect of the aforesaid post. The municipal Corporation by its Resolution No. 181 dated 31-8-1959 sanctioned the creation of the said post while sanctioning the budget proposals. This provision in the budget for the year 1959-60 only constituted a non-recurring item of expenditure. Opponent No. 1 who was then working as Assessment Officer, became Assessment and Estate Officer by the change in his designation. He, however, continued to draw the same salary and allowances throughout the financial year 1959-60. For the next financial year 1960-61 the Assessment and Estate Officer was made permanent with a revised grade of Rs. 300-20-500 in pursuance of the Standing committee Resolution No. 869 dated 15-1-1961 and the Municipal Corporation's resolution No. 616 dated 19-3-1960. It was thereafter that opponent No. 1 was confirmed on this. , post by the Standing Committee's Resolution No. 243 dated 205-1960. Petitioner's compfaint is that upon a provision for a permanent municipal Post having been made by opponent. No. 2 it was incumbent upon the standing Committee of the Corporation to follow the normal procedure of seeking applications by giving public advertisement and providing equal opportunity to all who would have been eligible for the said appointment and that it was further incumbent upon the said Standing Committee to make the appointment in consultation with the State Public Service Commission; the appointment of opponent No. 1 made without reference to the Public Service Commission and without following the procedure as indicated above with retrospective effect from 1-4-1960 is illegal and ultra vires the powers of the said Standing Committee and is in abuse of their powers to the detriment of Municipal funds. The petitioner also complains that the said appointment of opponent No. 1 on a new and permanent post of Assessment and Estate Officer in the manner done is in contravention of article 16 of the Constitution. The petitioner therefore prays for the issue of a writ of quo-warranto directing him to vacate the office of Municipal servant in the post of Assessment and Estate Officer which he has usurped. He also prays for the issue of a writ of mandamus against the Municipal Corporation to remove opponent No. 1 from the post of Assessment and Estate Officer.

(3.) THE petition is opposed by both the opponents. In the returns submitted by them it is contended by them that the Standing Committee by its Resolution No. 243 dated 26-5-1960 merely confirmed the appointment of opponent No. 1 as the assessment and Estate Officer and there was no fresh and new appointment made to that post or to any new post. According to them all that happened is that a preexisting temporary post was made permanent and the pay and grade of that post was revised and a person who was-already a Municipal employee and was at that time holding that post temporarily was confirmed in that post. For such confirmation, it is said, consultation with the Public Service Commission was not necessary. Reliance was also placed upon Section 442 (2) of the Madhya Bharat municipal Corporation Act for the view that the opponent No. 1 being a permanent municipal employee of the Indore Municipality and had been posted on a temporary post as Assessment Officer of the said Municipality on 29-10-1956 should be taken to be an officer duly appointed to that post by opponent No. 2 under Section 58 of the Madhya Bharat Municipal Corporation Act.