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Kashinath Krishnaji Soman (Dr.) and anr. Vs. Municipal Corporation of Greater Bombay and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberAppeal No. 632 of 1980 (in Writ Petition No. 476 of 1980)
Judge
Reported in1982(1)BomCR197
ActsBombay Municipal Corporation Act, 1888 - Sections 68, 105B(1), 105B(2) and 105C(2)
AppellantKashinath Krishnaji Soman (Dr.) and anr.
RespondentMunicipal Corporation of Greater Bombay and ors.
Appellant AdvocateK.K. Singhvi, ; B.N. Singhvi ; and R.A. Shaikh, Advs.
Respondent AdvocateH.M. Seervai, ; R.J. Joshi, ; M.H. Seervai ; and M.N. Kothari, Advs. for respondent 4, S.M. Dixit and ; L.C. Chagla, Advs. for respondent Nos. 3 and 5, A.N. Chedda and ; N.V. Kamat, Advs. for responde
DispositionAppeal dismissed
Excerpt:
civil - appointment - sections 68, 105 b (1), 105 b (2) and 105 c (2) of bombay municipal corporation act, 1888 - appointment of respondent to post of deputy municipal commissioner (dmc) challenged for want of required administrative experience for 10 years - respondent held office of ward officer for 7 years and has experience as enquiry officer for 4 years - duties carried out by respondent while holding said positions admittedly of administrative nature - clubbing of respondent's experience in said two posts renders him qualified for post of dmc - challenge on said ground untenable. - - the first respondent in the petition as well as before us is the corporation while the second respondent was at all material times the municipal commissioner. therefore, the qualifications must be.....r.a. jahagirdar, j.1. this appeal is directed against the order passed by a single judge of this court dismissing a petition, being writ petition no. 476 of 1980, by which the appellants had challenged the appointment of respondent no. 4 in this appeal to the post of the deputy municipal commissioner at bombay. the bombay municipal corporation, hereinafter referred to as 'the corporation', is governed by the provisions of the bombay municipal corporation act, 1888, hereinafter referred to as 'the act'. the petition was filed on 26th of march, 1980. the appellants are also employees of the corporation and at some stage they have also been appointed as deputy municipal commissioners. the first respondent in the petition as well as before us is the corporation while the second respondent was.....
Judgment:

R.A. Jahagirdar, J.

1. This appeal is directed against the order passed by a Single Judge of this Court dismissing a petition, being Writ Petition No. 476 of 1980, by which the appellants had challenged the appointment of respondent No. 4 in this appeal to the post of the Deputy Municipal Commissioner at Bombay. The Bombay Municipal Corporation, hereinafter referred to as 'the Corporation', is governed by the provisions of the Bombay Municipal Corporation Act, 1888, hereinafter referred to as 'the Act'. The petition was filed on 26th of March, 1980. The appellants are also employees of the Corporation and at some stage they have also been appointed as Deputy Municipal Commissioners. The first respondent in the petition as well as before us is the Corporation while the second respondent was at all material times the Municipal Commissioner. The third respondent is the Maharashtra Public Service Commission, which is the body recommending the appointment of certain class of Municipal Officers to be mentioned hereinafter. The fourth respondent, as already mentioned above, is the person whose appointment to the post of Deputy Municipal Commissioner was the subject matter of challenge in the writ petition. The fifth respondent is the State of Maharashtra. For the sake of convenience we will call the appellants as 'the appellants' and will refer to the fourth respondent as 'the respondent'. The other respondents will be referred to , whenever necessary, by their appropriate character.

2. On 5th of April, 1978 the Maharashtra Public Service Commission issued a notification inviting applications for the post of a Deputy Municipal Commissioner in the Municipal superior service of the Corporation. In that notification, the educational and other qualifications of the candidates were specified. We are concerned in this appeal only with the qualifications in so far as they relate to the experience of the candidate. The requirements relating to the experience will be mentioned later in this judgment when we examine the relevant statutory provisions governing the appointment of Municipal Officers. For the present it is sufficient to mention that the respondent submitted her application for the said post. The appellants also had submitted their applications for the same post. On 23rd of August, 1978, the Maharashtra Public Service Commission selected the respondent for the said post of the Deputy Municipal Commissioner. The appellants filed a writ petition, being Writ Petition No. 1207 of 1978, challenging what they regarded was the appointment of the respondent to the post of the Deputy Municipal Commissioner and this writ petition was dismissed by a Single Judge of this Court on 25th of August, 1978. The appellants preferred an appeal, being Appeal No. 163 of 1978, which was heard and allowed by a Division Bench of this Court by its judgment and order dated 7th of October, 1978. Before this happened, however, the Corporation had on 28th August, 1978, that is after the writ petition was dismissed by the learned Single Judge, appointed the respondent to the post of the Deputy Municipal Commissioner on an ad hoc basis. After the judgment of the Division Bench allowing the appeal and setting aside the order of appointment of the respondent, the respondent was reverted to the post of the Ward Officer which she was holding before she was appointed to the post of Deputy Municipal Commissioner, hereinafter referred to as 'the DMC'.

3. The respondent preferred an appeal to the Supreme Court, being Civil Appeal No. 1954 of 1978, which was allowed by the Supreme Court by its judgment and order dated 13th of February, 1980. While so allowing the appeal, the Supreme Court pointed out that the stage of challenging the appointment of the respondent to the post of D.M.C. had not arisen at all when Writ Petition No. 1207 of 1978 was filed by the appellants. The relevant provisions governing the appointment of the post of D.M.C. show that after the recommendation of the Public Service Commission the appointment is to be made by the Corporation and to be confirmed by the State Government. Since neither of the two steps after the recommendation of the Public Service Commission had been taken, the writ petition filed by the appellants was held to be premature. With this view the Supreme Court set aside the judgment of the Division Bench of the High Court and left the matter at large. Proceeding further the Supreme Court observed as follows :---

'This means that the recommendation of the Public Service Commission will be back before the Municipal Corporation of Greater Bombay. According to law the Corporation will take its decision and thereafter in due course it will go for confirmation to the State Government. If any party is aggrieved by the appointment made it will be time enough for such aggrieved party to challenge the appointment.'

The Supreme Court also made it clear that the Corporation should arrive at its own independent judgment untrammelled by any observations on the merits made by the High Court either expressly or impliedly.

4. By Resolution No. 2239 dated 24th of March, 1980, the Corporation accepted the recommendation of the Public Service Commission subject to confirmation by the State Government. The Government of Maharashtra confirmed the appointment of the respondent on 28th of March, 1980. Before this happened, the present petition was filed on 26th of March, 1980. Technically, therefore, the present petition also suffered again from the same infirmity. However, the parties have gone to the contest on the basis that the appointment of the respondent has been made and no arguments have been advanced on the premature nature of the petition.

5. The main or rather the only ground on which the appointment of the respondent to the post of the D.M.C. is assailed is that the respondent did not, on the date of her appointment, possess the necessary experience. According to the appellants, the Rules required that a person who is to be appointed by selection to the post of D.M.C. must have, after acquiring a second class degree, administrative experience of not less than ten years. It would be appropriate at this stage to mention the qualifications required of a candidate to be appointed to the post of the D.M.C. They are as follows :---

'Qualification.---Candidate must :---(i) possess at least a second class degree in Arts, science, law, commerce or engineering or a degree in medicine of recognised University or fellow of the Surveyors Institution (F.S.I) (Valuation.) (By Examination) or Chartered Civil Engineers (By Examination) and, (ii) after acquiring the qualification Clause (i) above, have administrative experience in a large organisation for not less than 10 years of which at least five years should be in responsible capacity.

Provided that in respect of Engineering Graduates and Medical Graduates, the prescribed minimum administrative experience of ten years, should not be related wholly, or mainly to the supervision of technical matter, e.g. preparation of plans and estimates, execution of work, treatment of patients or other clinical work but should include experience related to administrative work in a large organisation for a period not less than 5 years in a responsible capacity.

Note The academic qualification and experience upto the last date prescribed for the receipt of application will be taken into account in determining the eligibility of candidates for the post and for selecting them for the interview.'

These qualifications have been mentioned in the notification issued by the Public Service Commission inviting applications for the post. All are in agreement that these qualifications are part of the rules governing the appointment of D.M.Cs., which is to be made under a statute. Therefore, the qualifications must be satisfied before a person is appointed to the post of D.M.C.

6. We may now proceed to notice the relevant statutory provisions relating to the appointment of Municipal servants and in particular of the D.M.C. Though there is no dispute about the statutory nature of this appointment, we find it necessary to mention the relevant provisions because argument which was advanced before us by the learned Counsel appearing for the respondent can be disposed of if we bear firmly in mind the mandatory nature of these provisions. Section 80-B of the Act mentions, among other things, that no person shall be appointed to a post for which the minimum monthly salary, exclusive of allowances, is Rs. 400 or more except after consultation with the Commission in accordance with the Rules made the a section. Sub-section (3) of the said section provides the State Government shall after consultation with the Corporation and Commission make Rules for prescribing the procedure to be followed by the Commission in advertising the post, calling for applications, scrutinising the same and selecting the candidates for interview. The Rules thus made are required to be published in the Official Gazette. In exercise of the powers conferred by sub-sections (1) and (3) of section 80-B of the Act and after consultation with the Corporation and the Public Service Commission, the then Government of Bombay has made the relevant Rules. Rules 4 of the said Rules provides that when recruitment to any of the posts referred to in sub-section (1) of section 80-B of the Act is to be made by selection, the procedure prescribed is to be followed. The procedure prescribed relates to the advertisement to be published in at least one local newspaper and the mentioning of the qualification in the said advertisement. It also provides that the appointing authority is the Corporation or the Municipal Commissioner the Commission shall invite the Municipal Commissioner to be present at the interview to advise the Commission. Rule 10 provides that if the appointing authority does not accept the advice of the Commission, the Municipal Commissioner or the Standing Committee, as the case may be, shall communicate to the Commission the reasons for not so accepting the advice and the Commission shall be given an opportunity of reconsidering its opinion and, if it so desires, of making a fresh recommendation.

7. We have already noticed above the qualifications required for a candidate to be appointed to the post of D.M.C. by selection. According to the prescribed qualifications, the candidate must in the first place possess of least a second class degree in arts, science, law, commerce, engineering or medicine. The candidate is further required to have, after acquiring the said educational qualification, administrative experience in a large organisation for not less than ten years; five years experience must be in a responsible capacity. In the case of engineering and medical graduates, however, the prescribed minimum administrative experience of ten years should not be related wholly or mainly to the supervision of technical matters as mentioned in the proviso referred to above. The proviso does not apply to the graduates in arts, science, law or commerce.

8. We may now refer briefly to the career of the respondent whose appointment is the subject-matter of challenge before us. She joined the municipal service on 15th of February, 1949 as a clerk. She was promoted as head clerk on 10th of March, 1955. In December, 1965 she passed L.L.B., degree examination in second class. Thereafter on 1st of November, 1966 she was appointed to the post of Enquiry Officer, which was presumably created for the first time in that year. She served as an Enquiry Officer for four years and five months when on 26th of April, 1971 she was promoted as the Ward Officer. Indisputably the post of the Ward Officer is an administrative post giving responsible administrative experience. She was in this post till 5th of April, 1978---the date of the notification of the Public Service Commission inviting applications for the post of the D.M.C. On 23rd of August, 1978 the respondent had completed 7 years and 4 months in the post of the Ward Officer. If on the date of her appointment, that is on 23rd of August, 1978, the experience which she had acquired in the post of the Enquiry Officer is considered, she had undoubtedly more than ten years' administrative experience as required for the post of the D.M.C. If, however, her experience in the post of the Enquiry Officer is excluded, there is a short fall of 2 years and 8 months in the required period of administrative experience. The appellants have challenged the appointment of the respondent on the ground that on the date of her appointment she did not possess administrative experience of ten years, though there is no dispute that her seven years' experience in the post of the Ward Officer was in a responsible capacity in a large organisation. According to the appellants, in the post of the Enquiry Officer which the respondent held from 1st of November, 1966 to 26th of April, 1971, she did not acquire any administrative experience and, therefore, her appointment to the post of D.M.C. is illegal and void being contrary to the statutory requirements of qualifications. The only question that fell to be determined before the learned Single Judge and that falls for determination before us is whether the experience or not. The learned Single Judge answered this question in this affirmative and dismissed the petition and hence this appeal.

9. Before the learned Advocate appearing in support of the appeal proceeded with his arguments, Mr. Seervai, the learned Counsel appearing for the respondent, raised a preliminary objection to the maintainability of the appeal. According to Mr. Seervai, on the date on which the Court is called upon to give relief the respondent does possess administrative experience of more than ten years and if a writ is given today it will be infructuous because the respondent can still be re-appointed as the D.M.C. He further contended that in any case this Court should not issue a writ of qua warranto or any other writ setting aside the appointment of the respondent because if the Public Service Commission has found her fit on one occasion there is nothing that will prevent if from finding her fit again when the question is to be considered by the Commission. When this occasion arises the respondent will have more than ten year' administrative experience to her credit. In such a case, namely where a person whose appointment is being the subject matter of challenge in a petition of qua warranto the Court should be loathe to issue the writ if the person concerned could be re-appointed on the date on which the Court is called upon to issue the writ.

10. In support of this submission, Mr. Seervai relied upon a judgment of the Full Bench of Delhi High Court in P.L. Lakhanpal v. A.N. Ray, : AIR1975Delhi66 . The facts of that case disclose that the petitioner had approached the High Court questioning the appointment of Justice A.N. Ray as the Chief Justice of India on the ground that only the senior most Judge of the Supreme Court could be appointed as the Chief Justice of India and then Justice A.N. Ray was appointed there were three other Judges who were senior to him. It may be recalled that after the appointment of Justice A.N. Ray as the Chief Justice of India the three Judges who were senior to him and who had been passed over had tendered their resignation. The very foundation of the challenge to the appointment of Justice Ray as the Chief Justice of India was that there were Judges who were senior to him and, therefore, Justice Ray could not have been appointed. When the petition came up for hearing, Justice Ray was the senior most Judge of the Supreme Court because those Judges who were senior to him had already resigned. If the case of the petitioner before the Delhi High Court was accepted, then again Justice Ray alone could be appointed as the Chief Justice of India. The very foundation of the petition had vanished. In such a circumstances it was held by the Delhi High Court that no useful purpose would be served by issuing a writ because on the petitioner's case itself Justice Ray alone could be appointed as the Chief Justice of India. In our opinion, that case holds no parallel to the case before us. Mr. Seervai no doubt laid great stress on the following proposition finding place in the said judgment : ---

'Even assuming the consultation contemplated by Article 124(2) of the Constitution to be mandatory, the issue of a writ of qua warranto will be futile as Justice A.N. Ray could be immediately re-appointed as the Chief Justice of India as he possesses the qualifications prescribed by Article 124(3) of the Constitution and there is no legal impediment in the way of his re-appointment.'

We are unable to uphold the preliminary objection raised by Mr. Seervai on the basis of the judgment in Lakhanpal's case because in that case the very foundation of the petition had vanished before the petition could be disposed of. Even the proposition on which Mr. Seervai has placed reliance is no bar to the maintainability of the present petition and the appeal because if the appointment of the respondent is set aside there is no certainty that she alone would be reappointed as the D.M.C. if the matter is considered afresh by the Public Service Commission. Similar contention urged before the learned Single Judge was rejected by her and we have also no hesitation in rejecting the same.

11. Nor are we inclined to sustain the preliminary objection pressed further by Mr. Seervai on the basis of a Division Bench judgment of this Court in Bhairulal Chunilal v. State of Bombay, LV Bom.L.R. 882. We have with his assistance gone through the said judgment and we find that the facts is that case were totally different and hold no analogy to the facts before us. Under the provisions of the relevant law then governing the Municipal elections, the President of the Municipality was required to supervise the election of the Municipality that were to be held. It was found that the President of the Municipality himself held the post irregularly. A writ of qua warrant to challenging the elections was prayed for. The Division Bench held that the fact that the President of the Municipality who merely supervised the election held the post irregularly did not affect the merits of the candidates who were elected. The question was disposed of by the Division Bench in the following words :---

'If he was not the de jure President, he was certainly the de facto President. There is not even a suggestion that in acting as the President under the rules he did anything which is contrary to the rules he did anything which is contrary to the rules. It is not suggested that if anyone else had been in charge of the election he would have done any better then this de facto President. Therefore, putting it at the highest, the grievance of the petitioner amount to this that a person who was elected by the Councillors as President discharged the functions under the rules when he was not in law authorised to do so because his selection by the Councillors was not a proper and valid election.'

It was also held that the writ of qua warranto was not issued as a matter of right and the delay which had occurred on the part of the petitioners in that case in approaching the High Court disentitled them to obtain the writ prayed for. We refuse, therefore, to dismiss the appeal on the so-called preliminary objection raised by Mr. Seervai.

12. We are of the opinion that if appointment of a person to a public office is initially vitiated by non-compliance with the mandatory requirements of law, the same can be set aside even though at the time when the orders setting aside the appointment is to be made the original disqualification might have disappeared. In University of Mysore v. Govinda Rao : [1964]4SCR575 , it has been mentioned as follows :---

'It is thus clear that before a citizen can claim a writ of qua warranto he must satisfy the Court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.'

If it is found, as we are required to find in the instant case, that the appointment of the respondent has not been made in accordance with law or has been made in defiance of the same, then would not be justified in refusing to issue a writ of qua warranto.

13. Before we consider the merits of the appeal, it is naturally necessary to understand the nature of the duties performed by the respondent in her post as the Enquiry Officer. It may be mentioned that the designation of Enquiry Officer is only a description of the post which she held and it does not give a full and correct ideas of the duties performed by the respondent. We must mention that the respondent has performed the duties and has exercised the powers of the Municipal Commissioner under Chapter V-A of the Act. This she has done pursuant to an order passed on 8th of May, 1969 by the then Municipal Commissioner under the provisions of section 68 of the Act. That order, copy of which has been made available to us across the bar, is in the following terms :---

'pursuant to the provisions of section 68 of the Bombay Municipal Corporation Act, I, Joseph Bain D'Souza, Municipal Commissioner of Greater Bombay, do hereby empower Smt. Kunda Sitaram Kadam, B.A., L.L.B. the Enquiry Officer, to exercise under my control and subject to my revision, the power, functions and duties vested in me by the Bombay Municipal Corporation Act, under sections 105-B, 105-C, 105-D and 105-E to take all proceedings etc., as provided under the above noted sections and to do generally all such things as may be necessary or requisite for the discharge of the duties enumerated in the sections.'

It is clear from the aforesaid order that the respondent has been invested with the powers, functions and duties which would otherwise have been discharged by the Municipal Commissioner under sections 105-B, 105-C, 105-D and 105-E of the Act. The order further makes it clear that the respondent is to take all proceedings as provided under the aforesaid sections and to do generally all such things as may be necessary or requisite for the discharge of the duties enumerated in the aforesaid sections. The only qualification mentioned is that she has to exercise those powers and functions subject to the control and revision of the Municipal Commissioner. Section 68 of the Act permits such delegation of the functions and powers of the Municipal Commissioner. It is clear to us, therefore, that the respondent was not given the powers of merely an Enquiry Officer, but she has been invested with all other powers under the four sections mentioned in the order. That the respondent though designated merely as an Enquiry Officer was entitled to and did perform all other functions and duties under the aforesaid four sections must, therefore, be accepted. Ultimately, therefore, the question as to whether she had acquired administrative experience in what had been loosely described as the post of the Enquiry Officer will have to be decided by looking to the nature of the duties which the respondent was required to do under the aforesaid four sections. This question can be decided by referring to four sources. One is the provisions of Chapter V-A itself. Second is the duty list of the Enquiry Officer prescribed by the Corporation on which the appellants themselves have placed reliance. There is an affidavit of the respondent in which she has given the details of the duties performed by her and to which there is no further reply by the appellants. There is further the affidavit of the Municipal Commissioner. We may examine the nature of the experience acquired by the respondent in the order mentioned above.

14. Chapter V-A of the Act deals with the power to evict persons from Corporation premises. Section 105-A deals with the definitions of the words used in Chapter V-A Section 105-B(1) provides that where the Commissioner is satisfied that the person in occupation of any Corporation premises is guilty of one or the other act mentioned therein, he may by a notice served in the prescribed manner order that person as well as any other person who may be in occupation of the whole or any part of the premises shall vacate the same within one month of the service of the notice. What is contemplated is an action by the Commissioner after he is satisfied that the person is guilty of on or the other of the acts mentioned in the said section. Before he takes this action, however, he has to follow the procedure prescribed in sub-section (2) and that relates to an enquiry to be held beginning with a notice to be issued. It is only after this enquiry is completed that the satisfaction which is otherwise arrived at by the Commissioner under sub-section (1) of section 105-B is reinforced and he is free to proceed with the action which he has originally tentatively decided to take. From the peculiar juxtaposition of the first two sub-section of section 105-B it appears to us that there is an administrative decision which initially tentatively taken by the Municipal Commissioner on the basis of the facts placed before him of evicting a person occupying the Corporation premises. The statute, however, requires that this administrative decision shall be taken only after a quasi judicial enquiry is held for the purpose of finding out whether the satisfaction of the Commissioner is arrived at on material which is proved to exist. If therefore, the Commissioner is taking a decision under sub-section (1) of section 105-B of initiating proceedings under sub-section (2) of the said section, there is in this process administrative action involved.

15. The nature and the scope of the provisions contained in section 105-B of the Act has been the subject-matter of an authoritative examination at the hand of this Court in Bibi Batool Jafer v. Principal Judge, City Civil Court, Bombay, 74 Bom.L.R. 22. Though the scope of the enquiry before the Division Bench of this Court in the abovementioned judgment related to the validity of the provisions, there is sufficient discussion of the relevant provisions of Chapter V-A indicate the nature of the powers exercised by the Commissioner. On page 25 of the report the following is to be found :---

'These provisions (section 105-B) indicate that the Commissioner is to be satisfied as mentioned therein at two stages, the first stage is before he issues a show cause notice and the second is before he makes his final order of eviction. The first satisfaction is a mere prima facie satisfaction, arrived at ex parte, on such material as is then placed before him. The only purpose or object for providing for such satisfaction is to prevent him issuing a show cause notice want only or out of caprice. The final satisfaction however is to be reached after duly considering all the material placed before him as a result of the inquiry held by him after notice to the occupier of Corporation premises concerned.'

That there are two stages at which the Commissioner has to arrive at satisfaction is thus clearly recognised by the aforesaid judgment. As we have already mentioned above, the satisfaction arrived at the first stage involves necessarily the exercise of an administrative power or discretion.

16. Before we proceed to examine the other provisions under Chapter V-A and the other sources from which the nature of the duties of the respondent could be spelt out, we must refer to the argument of Mr. K.K. Singhvi the learned Advocate appearing for the appellants, relating to the experience that is required to be acquired to be labelled as 'administrative experience'. He has invited our attention to certain paragraphs in 'Introduction To the Study of Public Administration' by Leonard D. White. In Chapter I of the said book it has been mentioned that the art of administration is the direction, co-ordination and control of many persons to achieve some purpose or objective. It has been further mentioned that it is a dynamic art, taking the human and physical resources available in a system of administration and bending them to the achievement of some required goal. He has also referred to Black's Law Dictionary, Fifth Edition, wherein the word 'administration' has been defined as the management or conduct of an office or employment; the performance of the executive duties of an institution, business, or the like. We are broadly in agreement with the description given in the aforesaid two books. Mr. Singhvi also invited our attention to a judgment of the Supreme Court in State of Haryana v. Haryana Co-op. Transport, : [1977]2SCR306 . In that case the appointment of a person to the post of a Presiding Officer of a Labour Court was challenged. The qualifications for the appointment to the said post included the holding of the post of a Judge. It was held that a person who was merely working in an administrative capacity in a Court did not acquire judicial experience and, therefore, could not be appointed to the post of the Presiding Officer of a Labour Court. There cannot be any manner of doubt that a person who is merely doing ministerial work in a Court cannot be said to have acquired any judicial experience. We do not think that the said judgment of the Supreme Court is in any way relevant to the facts of our case in the light of the duties of the officer under Chapter V-A of the Act.

17. As we will show presently, though under sub-section (2) of section 105-B of the Act the Commissioner or the delegate of the Commissioner exercise quasi judicial functions, under the other provisions of the said Chapter he is necessarily discharging administrative functions-in the process acquiring administrative experience. The Municipal Commissioner or his delegate is not performing some function incidental to a particular post. He is performing several functions under different sections of the said Chapter; sometimes simultaneously, sometimes alternately. Though, therefore, the Commissioner or his delegate is exercising quasi judicial functions under section 105-B(2) of the Act, it cannot be said that he is not discharging administrative functions as required by the other provisions of Chapter V-A, Referring to Burmah Shell Oil Storage and Distributing Company Ltd. v. The Burmah Shell Management Staff Association : (1970)IILLJ590SC , Mr. Singhvi pointed out that if a person is doing more than one type of work it is the dominant type of work that will determine the nature of the work he is said to be doing. There is no quarrel with this proposition. But if a person is found to be doing, by the requirements of his office, two types of work not necessarily incidental to each other, then it cannot be said that he is doing only one type of predominant work. In the light of the submissions made and the authorities cited, we will now proceed to notice the other functions which are to be performed by the Commissioner or his delegate under Chapter V-A of the Act.

18. We have already indicated above that there is administrative action involved in sub-section (1) of section 105-B of the Act. We also find that under sub-section 4 of the said section the concerned authority has to take administrative decision and to perform administrative functions. After the finding is arrived at under sub-section (2), which reinforces the satisfaction of the Commissioner under sub-section (1), the Commissioner may, after giving fourteen days' notice to the person from whom possession has been taken in execution of the order passed under sub-section (1), remove or cause to be removed, or dispose of by public auction any property remaining on such premises. Some procedure is also prescribed for the disposal of the property. This course of action mentioned in sub-section (4) does not telescope with the finding given under sub-section (2) or action taken in execution of the order passed. It is evident that the said action is independent of and subsequent to the execution of the order passed under sub-section (1). Similarly, the action which is taken under sub-section (6) of section 105-B is also, in our opinion, administrative in character. This provision provides for a situation where a person who has been ordered to vacate the premises under sub-clause (i) or (iv) of Clause (a) of sub-section (1) pays to the Commissioner rent and taxes in arrears, as the case may be, within such time as the Commissioner may allow. Then the Commissioner is empowered to cancel his order made under sub-section (1). Upon such cancellation the person concerned is allowed to continue to hold the premises on the same terms on which he held them immediately before such notice was served upon him. We do not see any judicial or quasi judicial nature in the discretion which the Commissioner is required to exercise under the provisions of sub-section (6).

19. Similarly, the Commissioner's action of requisitioning in writing any deduction of amount of rent from the salaries of the Corporation employees envisaged under section 105-D of the Act is also administrative in character. From an examination of the provisions contained in Chapter V-A of the Act, therefore we are satisfied that the functions and the duties discharged and performed by the Municipal Commissioner or his delegate under Chapter V-A of the Act are not purely judicial or quasi judicial; they are also administrative. The functions under a particular provision may be quasi judicial as, for example, under section 105-B(2) of the Act. That section alone does not exhaust all the provisions of Chapter V-A. Therefore, a person who performs the quasi judicial functions under sub-section (2) of section 105-B does not cease to do other administrative work required of him under the other provisions of chapter V-A. We must remember that the Enquiry Officer is none other than the delegate of the Commissioner and he is required to do all the functions and duties delegated to him under the order of the Municipal Commissioner referred to above and made under section 68 of the Act. Merely because in the instant case the officer concerned has been called an Enquiry Officer, indicating that he or she is doing judicial or quasi judicial work, it does not mean that when the same person discharges other functions and duties under the other provisions of the Chapter, he or she is not doing administrative work. The duties under section 105-B(2) are only part of the duties required to be performed by an officer under Chapter V-A of the Act. The judgments of the Supreme Court in State of Haryana and Burmah Shell cases are not, therefore, applicable to the facts of this case.

20. We way now refer to one document on which both the parties have placed reliance and that is annexed as Exhibit 'C' to the petition. In it duties of the Enquiry Officer have been enumerated. The very first duty mentioned therein is 'administration and enforcement of the provision of Chapter V-A of the Act'. If this is the duty of the Enquiry Officer and if, as we have found the administration of Chapter V-A includes not merely judicial or quasi judicial duties but also administrative functions, then the Enquiry Officer is necessarily performing, as a part of his or her duty, administrative work also. In this process the person concerned must also acquire administrative experience. One may comment upon the quality or the quantity of the administrative experience thus acquired, but the quantity of the administrative experience acquired is not, in our opinion, any less than the judicial or quasi judicial experience acquired by the same person under the said Chapter. The second duty in the abovementioned list is to scrutinise the presentation forms and the materials furnished in support thereof. If the Enquity Officer has been entrusted with the duty of scrutinising the materials furnished in support of the presentation forms, it prima facie shows that duty includes the power not to take action if the materials furnished do not warrant an action. Supervision of the work of the enquiry clerks and the warrant clerks is also one of the duties of the Enquiry Officer mentioned in the list. We are not prepared to say that the supervision of the work of the clerks is entirely judicial or quasi judicial. It must necessarily involves some administrative work. Ultimately, however, the nature of the work done by a person under Chapter V-A of the Act is to be judged by the provisions of the said Chapter itself. What we have mentioned above, however, finds support from enumeration of the duties in the list at Exhibit 'C' to the original petition.

21. The respondent has, in her affidavit in reply to the original petition, given the details of the work done by her as Enquiry Officer. She has also made in the said affidavit several submissions relating to the duties discharged by her under the different provisions of the Act. It is not necessary for us to examine those submissions because we have already, independent of the same, examined in great details the relevant provisions of the Act. We must, however, notice details of some of the work done by her. For example, she has mentioned that she performed duties and functions not merely sections 105-B(1) and 105-C(2), but under all other provisions of Chapter V-A. She used to hold enquires only in the afternoons from Monday to Friday. During the others hours she performed duties and functions conferred upon her by the other provisions of Chapter V-A. There is no reason to disbelieve this statement because that is borne out not only by the provisions of Chapter V-A but also by the recitals in the list of duties assigned to her. She has proceeded to mention that her work as an Enquiry Officer included meetings with Ward Officers. Assistant Assessor and Collectors. She has also mentioned that before issuing notice under section 105-B(2) it was required to be scrutinised whether in the intended cause in fact there was public interest and whether the Municipality had prima facie proof to establish its case. In the meetings she held with Ward Officers, in connection with the proposed cases, she used to give general advice to the officers and other staff concerned. After scrutinising the presentation forms in detail as mentioned by her, she says, large number of them amounting to about twenty per cent of all submitted used to be returned by her to the respective officers. This shows that she had used her administrative discretion not to proceed with those cases. Similarly, she had supervised over the work of the warrant clerks executing the warrants and on many occasions she had personally attended the execution at site. There is no need to doubt this statement because this was part of her duty under Chapter V-A of the Act.

22. The Municipal Commissioner has also filed an affidavit-in-reply to the petition wherein of course he has only enumerated the various duties assigned to the respondent. He has interpreted the duties to be quasi judicial in nature, but he has admitted that to some extent they are supervisory as he supervises the work of the staff working in his section. It is not necessary for us to examine the opinion of the Municipal Commissioner expressed in this affidavit. Ultimately that question is to be decided by us after examining the relevant provisions of the statute governing the powers and duties of the respondent and the material that is placed before the Court. On an exhaustive review of the same, we have come to the conclusion that the respondent did perform administrative duties under Chapter V-A of the Act and thus acquired administrative experience.

23. Admittedly the respondent had seven years' experience in a responsible position, that is the position of the Ward Officer, in the Corporation itself. If we add to this the administrative experience of more than four years acquired by her in the post of the Enquiry Officer under Chapter V-A of the Act she has satisfied the requirement relating to the administrative experience. One must remember that of the ten years' experience, only five years' experience is required to be in a responsible position. The qualifications do not specify the quality of experience required in the other five years. Even the experience of the balance of five years is in a large organisation though it may not be qualitatively as high as the experience of a Ward Officer, but it is not required at all.

24. We are, therefore, of the opinion that the writ petition filed by the appellants was rightly dismissed by the learned Single Judge. This appeal, therefore, must fail and is accordingly dismissed.


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