RAM PRATAP DUBEY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) 'Mountain of a molehill', is perhaps the best description of the petitioner's grievance, as canvassed in this writ petition, filed under Article 226 of the Constitution. He has been put under suspension pending departmental enquiry by order dated 23 -11 -1991 (Document No. 16) and in order to challenge legal validity thereof, he challenges vires of Section 54(1) of M. P. Municipal Corporation Act, 1956 (hereinafter referred to as the Act) and the appointment of respondent No. 3 as the Commissioner, Municipal Corporation, Jabalpur, and claims a writ of certiorari and co -warranto for the purpose.

(2.) THE petitioner is admittedly employed as an Engineer in the Municipal Corporation at Jabalpur. The said Municipal Corporation is governed by the provisions of the Act and the authority thereof is now vested in the respondent Administrator appointed by the State Government for the purpose. The Respondent State Government has also appointed the respondent No. 3 as Commissioner vide order dated 30th September, 1991 (Annexure -3A). A perusal of this order indicates that the respondent No. 3 was at that time working as Commissioner, Municipal Corporation, Dewas, which is also governed by the provisions of the Act. It appears that there were charges against the petitioner relating to performance of his duties and it was considered necessary to hold a departmental enquiry into them. Pending departmental enquiry, it was decided to put him under suspension. The order (Document No. 16) indicates that it is signed by the respondent No. 3, but it mentions that the petitioner was being put under suspension

(3.) THE submissions of the petitioner are : firstly, Section 54(1) of the Act is ultra vires Articles 14 and 16 of the Constitution, inasmuch as, it confers unguided discretion on the State Government to appoint a Commissioner and thereby violates the Constitutional mandate. It is specifically submitted that the said provision does not specify the person or class of persons, who may be appointed as Commissioner and, therefore, there is complete absence of intelligible differentia, making the provision arbitrary and violative of Article 14. It is also submitted that power given to the State Government is very wide, uncontrolled and admits abuse or colourable exercise resulting the discrimination; secondly, it is submitted that the respondent No. 3 is a Member of State Municipal Service (Executive) and holds lien on that post. His appointment as Commissioner, therefore, amounts to his holding two substantive posts at the same time, which is not only arbitrary, violating Article 14, but also against P. R. 12 B. It is further submitted that in the past, history of appointment of Commissioners clearly establishes that persons of the rank of Dy. Collectors were usually appointed, but the petitioner does not belong to that rank and, therefore, his appointment is illegal deserving quashing by issuing a writ of co warranto. As regards suspension and issuance of charge -sheet, it is submitted that they are contrary to Rule 9 of M. P. Civil Services (Classification, Control and Appeal) Rules, 1966, inasmuch as, they have not been issued by the disciplinary authority. It is further submitted that the showing in the return that suspension is directed by the Administrator is a fraud and documents prepared only for the purposes of this writ petition. It is also submitted that it is a case of mala fide exercise of power by the respondent No. 3 and hence suspension and charge -sheet deserve to be quashed. The respondents have filed their return and have denied allegations of illegality and mala fides. In the return filed by the respondents 2 and 3, it has been specifically stated that the order of suspension was passed by the then Administrator, Shri Gopal Reddy, I.A.S. Shri Reddy has also given his affidavit dated 27 -3 -1992 (page 100 of Paper Book) stating that he has, after application of 'his mind, ordered the petitioner's suspension and enquiry into the matter by the respondent No.