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Sonu Sampat Shewale Vs. Jalgaon Borough Municipality - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 579 of 1957
Judge
Reported in(1957)59BOMLR1088
AppellantSonu Sampat Shewale
RespondentJalgaon Borough Municipality
DispositionPetition allowed
Excerpt:
the bombay municipal boroughs act (bom. xviii of 1925), sections 33 and 48-resignation of sixteen councillors out of thirty-five-appointment of chief officer after his retirement by remaining councillors-petition challenging appointment as beyond authority-whether power under section 48 subject to rules-whether municipality competent to employ superannuated officer-whether exception to rule 226 requires president to record reasons-whether municipality has power to appoint superannuated officer.;even if a municipality has power to appoint a person after superannuation either temporarily under section 33 of the bombay municipal boroughs act, 1925, 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,.....tendolkar, j.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.....
Judgment:

Tendolkar, J.

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. It is under these circumstances that the petitioners have come to Court to challenge the order of appointment, and the grounds of challenge as made out in the petition are that respondent No. 2 manoeuvred to get his term extended by inducing the non-resigning Councillors to pass a resolution for giving a contract of employment to him as a Chief Officer under Section 48 of the Bombay Municipal Boroughs Act before the Councillors elected in the bye-elections could act as Councillors. The resolution is also challenged on the ground that it was passed mala fide for the purpose of showing undue favour to respondent No. 2 and for the purpose of circumventing the rule which required a three-fourths majority of the whole number of Councillors of the municipality for retaining respondent No. 2 in service. In answer to this petition, two affidavits have been filed-one by the President of the municipality and another by respondent No. 2. They both allege that the petitioners are political opponents of the Congress, that the President of the municipality is a staunch Congressman, and that, therefore, this petition has been presented mala fide by the petitioners. They both aver in their affidavits that there is nothing either in the Bombay Municipal Boroughs Act or the rules made thereunder to prevent a municipality from giving a temporary appointment to a person who had reached the age of superannuation, and further aver that such appointments are very often made by the municipality from amongst Government servants who had retired from Government service. They also allege for the first time that the appointment of respondent No. 2 was a temporary appointment under Section 33 of the Bombay Municipal Boroughs Act, although the appointment had in terms been made under Section 48 by the resolution to which I have already referred. Both the affidavits also say that the business of the municipality could not be suspended because 16 Councillors had chosen to resign and that the remaining Councillors had every right to pass the resolution which they did before the newly elected Councillors were in a position to take their seats. They further urge that there can be no question of evading the rule which provides for continuation in service after superannuation, because the rights obtained by a servant who is retained in service without retirement and the rights obtained by a new appointee are wholly and entirely different. They also urge that it was competent to the municipality to make the appointment in the form of a contract of service under Section 48 if it is held that the appointment was not under Section 33.

4. 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.

5. Now, turning to the relevant sections of the Act, Section 33, Sub-section (1), provides that there shall be a Chief Officer and prescribes the qualifications for such an officer; but a proviso to that sub-section states that these qualifications may be dispensed with inter alia in a case in which the appointment is temporary. Therefore, quite clearly, it is competent to the municipality to make a temporary appointment of a Chief Officer. Then we have a provision for making rules in Section 58, and the relevant sub-sections of that section which refer to rules regarding the officers and servants to be employed by the municipality are Sub-sections (c), (f) and (h). Sub-section (c) relates to rules determining the staff of officers and servants to be employed. Sub-section (f) is in the following terms:

Determining subject to the limitations imposed by Sections 33, 34(5.) and 34A, the mode and conditions of appointing, punishing, or dismissing any officer or servant; and delegating to officers designated in the rules the power to appoint, fine, reduce, suspend or dismiss any officer or servant;

so that in terms the mode of appointment is one of the matters specified in respect of which the municipality shall make rules. Sub-section (h) inter alia deals with regulating the period of service, and this obviously would include a power to determine by rules the age of superannuation. In pursuance of this section rules have been made and sanctioned by the Government of Bombay as required by the Act on November 19, 1954, It is necessary to look at some of these rules for the purposes of the present petition. Rule 107 states that the staff of municipal officers and servants and their salaries, fees and allowances shall be in accordance with Schedule 'C'; and Schedule '0' contains a list of the staff. This list is the list of the permanent establishment of the municipality. As we will presently point out, there is provision for temporary establishment as well in contra-distinction to the permanent establishment or what may be called permanent municipal service. Provisos (a), (b) and (c) to Rule 107 respectively deal with extra temporary staff for not more than six months in special circumstances of strain, temporary staff for the execution of special recurring work and temporary establishment for the. purpose of carrying out work the cost of which is recoverable from private persons under Section 194. Such staff would be on what may be called temporary establishment, which is a term used in subsequent rules. Now, in this connection, it is useful to keep in mind the distinction between a permanent post or permanent service and a permanent appointment to such a post. A permanent post may be filled either by a permanent appointment or a temporary appointment, and because the post is permanent it does not follow that the appointment is permanent. To take only one instance which is apposite, the Chief Officer's post is a permanent post, as under Section 33 there must be a Chief Officer; but a person may be appointed permanently to that post or he may be appointed temporarily. Keeping this in mind, when one turns to the other rules, Rule 221 requires that no permanent appointment to certain specified posts, including that of the Chief Officer, shall be made without inviting applications by advertisement as therein provided. Then Rule 222, which apparently is the rule that both the President and respondent No. 2 had in mind when they averred in their affidavits that Government pensioners had been employed by several municipalities, is in these terms:-

So long as qualified persons are available no unqualified person shall be newly appointed to any post under the Municipality except for reasons recorded in writing by the President and approved by the Municipality, provided that Government pensioners may be employed in temporary establishment as well as on the permanent establishment for specific duties, e.g. making valuation of properties, disposal of objection application, etc. under Section 81(3) of the Act, till duly qualified men are available.

Therefore, there is absolutely no warrant for the averment made by the President of the municipality and by respondent No. 2 in their affidavits that there is nothing to prevent Government servants who have retired from service being appointed by the municipality to its staff. Except within the limitations of the proviso to Rule 222, they certainly cannot be appointed. Then we turn to Rule 226, which is in these terms:-

No person who is less than 16 or more than 30 years of age shall be admitted to the permanent Municipal service, except for special reasons to be recorded in writing by the President and approved by the General Board.

Now, the first thing to notice about this rule is that it deals with appointments to the permanent municipal service and does not deal with permanent appointments, as was sought to be contended by Mr. Kotwal on behalf of the municipality. The permanent municipal service here referred to are the posts that are enumerated in Schedule 'C' to the rules, and the permanent municipal service is in contra-distinction to the temporary establishment which is referred to in Rule 222 and is the same thing as permanent establishment also referred to in Rule 222. Therefore, this rule prescribes an age-limit for admission to the permanent municipal service in whatever manner that admission may be made, and that limit is 16 to 30 years of age. There is no doubt an exception and the exception is that for special reasons to be recorded in writing by the President and approved by the General Board, a person who does not satisfy the requirements of age may be admitted to the permanent municipal service.

6. Now, in this context, it would be convenient at this stage to refer to the rule regarding compulsory retirement as sanctioned by Government, and that rule is in the following terms:-

1(a) Except as otherwise provided in the following clause the date of compulsory retirement of a Municipal servant, other than as inferior servant, is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement only with the previous sanction of the Municipality on public grounds which shall be recorded in a resolution passed by the Municipality with the support of at least three-fourths of the whole number of Councillors,

Then Rule 2 is in these terms:-

2. Each Municipal servant's case should be taken up when he is approaching the age of superannuation and before the expiry of each extension of service. Extensions may not be granted for any period exceeding one year at one time, the first extension being given generally upto the end of the financial year. In case in which it is proposed to grant extensions of service, reports should be made to the Municipality through the controlling officer or controlling committee at least two months before the necessity for sanction or fresh sanction arises.

Now, this rule is in two parts : It prescribes the age of 55 as the age of superannuation ; it also provides that by following the procedure therein prescribed, a person who has reached the age of superannuation may be retained in service. Now, in so far as it prescribes an age of superannuation, the question arises whether it is implicit in prescribing the age of superannuation for a post or posts that no one who is past that age can be recruited to such a post. Mr. Kotwal has attempted to argue that although a person cannot be retained in service after he attains the age of 55 years, there is nothing to prevent the municipality from appointing to its service a person who may be well past that age. It appears to us to be impossible to uphold such a contention. Where the law-and, in this context, bye-laws have the force of law-prescribes an age of superannuation, it appears to us to be quite impossible to argue that a person who is past that age can for the first time be appointed to that post. Taking only one illustration, Article 217 of the Constitution provides that a Judge of the High Court shall hold office until he attains the age of 60 years. Can it possibly be suggested that a man past 60 can be appointed as Judge for the first time and that there is nothing in Article 217 to prevent such an appointment The answer must obviously be in the negative; and the very requirement that the person in service shall retire at the age of superannuation carries with it the necessary implication that nobody who is past that age can possibly be employed for the first time in that post, for otherwise he would have to retire before he is employed. In our opinion, therefore, with regard to posts which are governed by the rule as to superannuation, namely, attaining the age of 55 years, it is not competent to the municipality to appoint to such a post a person who is past that age. Mr. Kotwal attempted to argue that having regard to Rule 226, if a person is more than 30 years of age, if the General Board is prepared to make an exception in his case as provided in that rule for special reasons to be recorded in writing by the President and approved by the General Board, a man above 55 may also be appointed. We consider that such an interpretation of Rule 226 negatives the fundamental rule that no one can be recruited in service, unless specific provision is made in respect thereof, after the age of superannuation that has been prescribed; and, therefore, the exception that is set out in Rule 226 can only be made in the case of persons who, at the date of appointment, although over the age of 30, have yet not attained the age of 55, and the exception cannot be invoked if the person is in fact past the age of 55.

7. Turning now to the latter half of the rule relating to continuance in service after superannuation, it prescribes three essential requirements for such continuance: (1) that his retention must be necessary on public grounds (we presume that what is intended to be conveyed by the words 'public grounds' is 'on the ground of public interest'); (2) that a resolution to that effect must be passed by at least three-fourths of the whole number of Councillors; and (3) that extension cannot be granted for any period exceeding one year at a time, the first extension generally being up to the end of the financial year.

8. We next turn to Section 48 of the Act which deals with the power of the municipality to enter into contracts. Sub-section (1) is in these terms:-

A municipality shall be competent, subject to the restriction contained in Sub-section (2), to lease, sell or otherwise transfer any moveable or immoveable property which may, for the purposes of this Act, have become vested in or been acquired by it; and so far as is not inconsistent with the provisions and purposes of this Act, to enter into and perform all such contracts as it may consider necessary or expedient in order to carry into effect the said provisions and purposes.

Now, it is argued by Mr. Tarkunde on behalf of the petitioners that contracts of service are not within the scope of this section at all. The first part of this sub-section obviously does not include within its scope contracts of service, and the only question is whether the latter part of this sub-section includes them. The relevant words are '' all such contracts as it may consider necessary or expedient in order to carry into effect the said provisions and purposes', the word 'said' referring to the provisions and purposes of the Act; and prima facie we do not see why, where appointments of staff are necessary for the purpose of carrying into effect the provisions and purposes of the Act, if it becomes necessary to enter into a contract of service, the municipality cannot do so within this section. Mr. Tarkunde draws our attention to Sub-section (4) of this section, which provides that every contract shall be made on behalf of the municipality by the Chief Officer, and urges that this in any event shows that the Chief Officer himself could not be appointed by a contract of service under Section 48. 'We do not think that Sub-section (4) leads to that result. Ordinarily, assuming a contract of appointment was competent, the Chief Officer that would enter into such a contract would be the predecessor of the new Chief who is being appointed, and not the same individual as happens to be the case in this particular petition; and therefore, the mere fact that the Chief Officer is required to enter into a contract does not lead to the necessary consequence that there can be no contract for the appointment of a Chief Officer; and in any event, even in a case such as the present, we see nothing intrinsically wrong in an individual in one capacity entering into a contract with himself in another capacity if it is permissible by statute. In our opinion, therefore, there is power under Section 48 to enter into a contract of service if it becomes necessary to do so.

9. But what is canvassed in these proceedings by Mr. Kotwal before us is, not only that there is such a power, but that the power is not subject to the provisions of the Act or of the rules made thereunder; that it is absolute and unqualified and the municipality can enter into any contract it likes. Now, in the first instance, the fact that the municipality is entitled to enter into a contract does not determine the question of any limitations on the capacity of the municipality. The municipality must act within the framework of the Act and the Rules, and if it acts outside the Act or outside the Rules, then obviously it would be acting in a manner which would render its action ultra vires. Moreover, the very words of the section are 'so far as is not inconsistent with the provisions and purposes of this Act'. When his attention was drawn to these words, Mr. Kotwal felt constrained to concede, although he appeared to do so reluctantly, that the power may be subject to the provisions of the Act; but he still insisted that the power is not subject to the rules made which may be applicable to a particular contract which the municipality proposes to enter into. Now, in our opinion, the words 'not inconsistent with the provisions and purposes of this Act' not only make the contract subject to the provisions of the Act, but subject also to the rules made under the Act. Any other view would, in our opinion, lead to absurd results. For example, Schedule 'C', to which we have already referred, prescribes a grade for the salary of the Chief Officer from Rs. 200 to Rs. 400, and if the proposition that Mr. Kotwal canvasses is correct and the municipality was competent to enter into a contract of service with the Chief Officer and was not bound by the Rules in doing so, it can give him a salary of Rs. 4,000 instead of the maximum of Rs. 400 if it so pleased. It could equally dispense with the age of superannuation and set at nought every other rule which has been made under statutory authority under Section 58 to regulate the terms and conditions governing the appointment and continuance in service of the servants of the municipality. Therefore, in our opinion, although there is a power under Section 48 to enter into a contract of service, that power is subject not only to the provisions of the Act, but also subject to the rules which are binding on the municipality.

10. Turning next to Section 50, which the President of the municipality thought was applicable to the appointment of a Chief Officer under a contract of service, Sub-section (i) thereof provides as under:-

Except as is otherwise provided in Sub-section (3), a Chief Officer shall, before entering into any contract for the execution of any work or the supply of any materials or goods which will involve an expenditure exceeding one thousand rupees, give notice by advertisement in a local newspaper, inviting tenders for such contract:

It appears to us to be plain that this section has nothing whatever to do with a contract of service. Such a contract is not a contract 'for the execution of any work or the supply of any materials or goods.'' It was suggested that it is a contract for the execution of the work of the Chief Officer. That, in our opinion, is too far-fetched a construction of the section; and the word 'work' in this section is, in our opinion, not used in the sense of the work that an officer of the municipality has to do in the discharge of his duties. Obviously, therefore, the section has no application to the appointment on a contract basis and the amended resolution was, therefore, quite unnecessary.

11. We will now proceed to consider the questions that arise for our determination, and it appears to us that whether the municipality was acting under Section 33 or under Section 48 in making the appointment that it did, since it was making an appointment to a post which falls within the description of permanent municipal service and is included in the list in Schedule ' C', the municipality was not competent to employ any person who had passed the age of superannuation; and in so far as it did so, it acted beyond its competence and the resolution is ultra vires and unlawful. 'We have already said that we interpret the exception to Rule 226 as referring to cases of entrants to the service who are between the ages 30 and 55. But assuming for a moment that our view is not justified and it was competent to the General Board to resort to the exception and appoint a person who is above 55, it could only be done in strict conformity with requirements of that exception; and those requirements are that the President must record special reasons for waiving the age-limit and such reasons must be approved by the General Board. Now, in this particular case, the President has in his affidavit made it amply plain that there is, in his opinion, nothing either in the Bombay Municipal Boroughts Act or the Rules made thereunder to prevent a municipality from giving a temporary appointment to a person who has reached the age of superannuation. Therefore, there could be no question of the President ever applying his mind to whether the age-limit should be waived, and if so, for what reasons. That he did not in fact apply his mind to such a question cannot even be suggested, because he was not conscious that under the Rules the question of waiving the age-limit arose at all, and indeed he was firmly of the opinion that it was perfectly open to the municipality to appoint a person past the age of superannuation. There could, therefore, be no occasion for the President to record reasons either special or otherwise, nor can there be any approval by the General Board. The report made to the General Board by the President on September 10, 1956, is not a report for the purpose of waiving the age-limit under Rule 226, nor is the resolution passed by the municipality on May 31, 1956, a resolution confirming any recommendation by the President to waive the age-limit under Rule 226. Therefore, even if we were to assume that Rule 226 allowed the municipality to make an exception in the case of a person who is past the age of superannuation, in this particular case no steps have been taken which would bring the exception into play. In our opinion, therefore, on the face of it the appointment is ultra vires and unlawful and ought to be set aside,

12. However, since the question of mala fides has also been fully argued, we propose to deal with that question as well. Now, it may be that the mere juxtaposition of dates in relation to the holding of the elections, the undue haste in convening and holding a meeting on May 31, 1956, with knowledge that 16 people had already been elected Councillors but could not take their seats until their names were gazetted, may well indicate, or at any rate give rise to, an allegation of mala fides. But these facts by themselves have not been relied upon as evidence of mala fides in the petition itself, and beyond the allegation that opponent No. 2 manoeuvred to get his term extended by inducing the non-resigning Councillors of the municipality to give him a contract of employment before the other Councillors could act as Councillors, it is not alleged that this action is evidence of mala fides on their behalf. We will, therefore, not treat it as such. The specific allegation of mala fides is based on two grounds: (1) that the resolution was passed in order to oblige respondent No. 2 and (2) that it was intended to circumvent the rule relating to the continuance in service after superannuation. With regard to the first of these allegations, we have no material before us on the basis of which we could hold that the object of passing the resolution was to show undue favour to opponent No. 2. We will assume that opponent No. 2 was an exceedingly capable and competent Chief Officer of the municipality and those who voted to give him a contract of service for two years believed that he was a competent officer and did not merely wish to oblige him or to show him undue favour. But when one comes to the second particular of mala fides, namely, the attempt to circumvent the rule, it appears to us that the conclusion on the documents themselves is irresistible that there was a clear and unmistakable attempt to circumvent the rule. Now, in the first instance, one must turn to the letter of respondent No. 2 to the President dated May 19, 1956, and the letter in terms points out that he could be retained in service after the date of compulsory retirement in the manner provided by the rule to which we have already referred. Respondent No. 2 then states that because this is not possible in the present conditions, therefore a contract should be given to him. The whole genesis, therefore, of the appointment is that an extension under the rules was not possible 'under the circumstances, and, therefore, some alternative method should be found of bringing about the same result. Then when one comes to the meeting of May 30 and the resolution passed therein, all the recitals in that resolution are recitals which would be necessary and pertinent if the person was to be continued in service by a three-fourths majority of the entire body of Councillors, The resolution in terms records that his continuance in service is necessary in the public interest. But after having done so, since only 11 Councillors had assembled at this meeting and they were nowhere near the three-fourths majority of 35 Councillors, they could not proceed to act under the rule and give him an extension, and therefore resorted to the method suggested by respondent No. 2 himself of giving him a contract under Section 48.

13. Now, it was suggested in the President's affidavit that there is a difference between continuance in service after the age of superannuation and a fresh appointment such as the one that was made in this case; and the distinction sought to be pointed out in the affidavit is that whilst in the case of people who are retained in service they continue to enjoy all the rights and privileges of their original service, a newly appointed person does not do so. At first blush, this appears to be a point of distinction between continuance in service and a fresh appointment after superannuation. But when one turns to the resolution and the terms offered to respondent No. 2 for his contract of service, it is plain that he lost no rights that he could have obtained by continuance in service. He has not only been granted under the contract his salary which was already the maximum of his grade, but also in terms the same conditions of service as he enjoyed at the time of retirement. Therefore, whatever might have happened to a fresh appointment on different terms, this obviously was intended to be, and was in terms, an appointment on the same pay and conditions of service as before and in effect a continuance in service. We have, therefore, no hesitation in holding that this resolution was, assuming it was within the competence of the municipality to pass it, passed by them mala fide for the improper purpose of circumventing the provisions of the rule relating to the continuance in service after superannuation, and on that ground also the resolution is liable to be set aside.

14. It has, however, been urged-and indeed it was urged as a preliminary point on behalf of the respondents-that this petition should not be entertained by us because the petitioners have another adequate legal remedy and also because there has been delay in the presentation of the petition. Now, this petition is in the nature of a writ of quo warranto where the very right of respondent No. 2 to act in the responsible post of Chief Officer of the municipality has been questioned; and if his appointment is illegal, every day that he acts in that office a fresh cause of action arises and there can be no question of any delay in presenting a petition. So far as the availability of an adequate legal remedy is concerned, what is alleged is that under Section 214 the petitioners have already approached the Director of Local Authorities who has jurisdiction to set aside the resolution or to suspend its operation, and until the Director of Local Authorities has given his decision, in any event, the petition is not maintainable. It is also said that the State Government has power under Section 34A to take similar action and, therefore, the petition should not be entertained. Now, with regard to the remedy which the petitioners sought from the Director of Local Authorities, as we have already stated, although the petitioners addressed a letter on September 14, 1956, and on September 17 they were informed that the matter had been referred to the Collector and action would be taken 'in due course', apparently the 'due course'' has not yet been completed. 'What is more, two reminders on November 10, 1956, and on February 14, 1957, have not even elicited the courtesy of a reply. We can hardly conceive of more irresponsible conduct on the part of a highly placed administrative authority. The complaint made to it was that someone who was exercising the functions of a Chief Officer of a municipality had been unlawfully appointed and ought not to be allowed to exercise these functions; and for a long period from September, 1956 till to-day the only action that is known to have been taken is a reference to the Collector and a refusal even to acknowledge reminders sent in that regard. The State of Bombay has not chosen to offer any explanation for this conduct; but the President of the municipality, in his affidavit, states that the matter has been delayed because the municipality, which is in East Khandesh, has been transferred from the Central Division to the newly formed Aurangabad Division of the Bombay State. Now, the formation of the new State was on November 1, 1956, and ordinarily, if the Director of Local Authorities had a due sense of his responsibilities, he should have disposed of this application long before that date. But, in any event, surely an inordinate delay has taken place since November 1, 1956, in disposing of this application, and we cannot ask or expect the petitioners to wait indefinitely for the time when the Director of Local Authorities in God's good time thinks fit to dispose of the application. The pendency, therefore, of the application before the Director of Local Authorities is, in our opinion, not an adequate legal remedy at all. Indeed, it has proved to be completely inadequate so far because, if the appointment was unlawful, as we have held it to be, respondent No. 2 should have been prevented from September 1, 1956, or at any rate soon after the Director of Local Authorities was informed about it, from acting as the Chief Officer.

15. Turning next to the provisions of Section 34A, it empowers the State Government to make in its discretion an order vetoing the continuance in office of any person holding the appointment of a Chief Officer on the recommendation of a municipality supported by a resolution passed by a majority of the Councillors present. Now, in the first instance, this is not a legal remedy. A power in the local Government which it can exercise in its discretion is certainly not an adequate legal remedy. Moreover, it is conditional upon a recommendation supported by a resolution of a majority of the Councillors. If the appointment is ultra vires and illegal, even a single Councillor has a right to have it set aside whatever view the majority of the Councillors may take in that regard. Therefore, in our opinion, Section 34A does not constitute an adequate legal remedy. The preliminary objections of the respondents, therefore, to the petition must necessarily fail.

16. The result, therefore, is that the petition succeeds, the order of the municipality dated May 31, 1956, together with the resolution of September 17, 1956, will be set aside, and the municipality restrained from paying any salary or remuneration to respondent No. 2 or allowing him to continue to act as Chief Officer, and respondent No. 2 permanently restrained from acting as Chief Officer of the municipality.

17. Respondents Nos. 1 and 2 shall pay the costs of this petition.


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