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Joshi Jashwant Hariprasad and ors. Vs. Municipal Commissioner and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR861
AppellantJoshi Jashwant Hariprasad and ors.
RespondentMunicipal Commissioner and ors.
Cases ReferredToronto Ry. Co. v. City of Toronto
Excerpt:
.....done, because the question had been pursued in all its seriousness. the secretary as well as the transport manager stated that as far as the handling of this department is concerned, it is minded only by the secretary and the transport manager and the deputy transport manager are in the overall general charge of the entire transport service. the context provides a good guide for interpretation, but the first and over-riding principle of interpretation is that if the text of the section itself is too clear and unambiguous and does not call for any extraneous assistance of such aides, like the placement of that provision in the whole set up, the text is to prevail. this argument is not open to be raised by these petitioners, who, as said above, had already subjected themselves to this..........the first question is whether the petitioners can be permitted to challenge the holding of the post of transport manager by mr. vasadia when the very existence of the petitioners in these petitions is rooted in the appointment orders issued by very mr. vasadia in their favour. in my opinion, there is considerable force in this contention put forward on behalf of the respondents. if presumptively the plea put forward by the petitioners is upheld, it would be required to be held as a matter of necessary and inevitable corollary, that the petitioners holding of the post under orders issued by mr. vasadia also would automatically fall through. the petitioners, after having availed themselves of the orders issued by the socalled unauthorised person, cannot be in a writ jurisdiction of.....
Judgment:

N.H. Bhatt, J.

1. These four petitions respectively by 9, 13, 8 and 3 petitioners are directed against the selection of clerks to be recruited for the purpose of running the administration of the Ahmedabad Municipal Transport Service, hereinafter referred to as 'AMTS' for brevily's sake. These different petitioners are similarly situated in so far as they were about the month of February 1980 were appointed as Clerks admittedly on temporary basis, but they were sought to be reverted to make room for the selectees on the selection panel made by the Transport Manager. The petitioners, therefore, filed at different times these petitions essentially for the purpose of getting it declared at 23-5-80 that the selection list of the Junior Clerks to be employed in the AMTS for appointments of Clerks was bad at law, and the respondent No. 2, the Transport Manager, should be restrained from relieving the petitioners in order to translate that list into reality.

2. A few facts require to be stated in order to comprehend the controversy. The Ahmedabad Municipal Corporation is a body floated under the provisions of the Bombay Provincial Municipal Corporations Act, 1949, hereinafter referred to as 'the Act'. This Corporation has taken upon itself a transport undertaking for last many years. In order to run this whole show of transport administration, the Junior Clerks are required to be recruited time and again. It is an admitted fact that, public advertisement was issued in the month of January 1979, inviting applications for the post of Junior Clerks. All these petitioners and many others, numbering about more than 13, 000, had made such applications. The written test was held on 18-11-79. The candidates who passed the written test, I assume, were to be further tested at the viva voce and it is the say of the Transport Manager in his affidavit that this whole gamut came to its culmination on 23-5-80. In all there were selected 300 candidates, out of whom 200 were approved for immediate appointment and the remaining 100 were kept on the waiting list, to be invited as and when the vacancies of the Junior Clerks' posts arose. It, however, so happened that in February 1980, the posts of clerks were required to be filled in. The petitioners of these petitions, who were the applicants pursuant, to the above-mentioned advertisement of January 1979 and who were under the process of being screened, were selected for holding those posts of clerks temporarily. The orders were passed appointing them temporarily with express condition that their appointments are liable to be cancelled at any time without any prior notice or without assignment of any reasons. Not only did the orders specify so, but even a writing was taken from each of these candidates appointed temporarily to the effect that their appointments were only for one month and that this period (of one month) could be extended by the Manager, if the need so arose. In the month of May 1980, 200 selectees were to be appointed and the petitioners, therefore, were required to make room for them, as the persons holding the posts temporarily and on ad hoc basis. The petitioners, therefore, knocked the doors of this Court by filing these petitions, which were heard together with the concurrence of the learned advocates appearing for the parties with a special statement that the various affidavits and rejoinders and sur-rejoinders, whatever they are, filed in one or the other of the petitions should be read for the purpose of deciding those group of petitions.

3. The petitioners in their petitions did not say that there was any fresh attempt by the Transport Manager to issue fresh advertisements subsequent to the one referred to above or there was any fresh further attempt to hold the written test and the oral test. The Corporation's affidavit also did not make this position clear, though the tender of their affidavit was suggestive of the fact that the procedure of selection that had been initiated with the issuance of a public advertisement dated 24-1-79 came to reach its culmination only in May 1980, because of a very large number of candidates being required to be tested for the purpose of selection. It is also no longer in controversy before me that the petitioners, who had appeared in that examination and viva voce, had unfortunately were declared not upto the standard and they were therefore, declared failures. The petitioners, therefore, filed these petitions in the month of May 1980. The interim relief restraining the Transport Manager from relieving the petitioners was initially granted, but had come to be vacated by our Brother Ahmadi J. by his order dated 31-7-80 on the statement having been made by Mr. G.N. Desai for the Ahmedabad Municipal Transport Service that if these petitioners succeeded in these petitions, they would be restored their position and were to be continued in service without break and without effecting their seniority.

4. Mr. S.D. Patel, who was in-charge of the attack by the petitioners, canvassed before me the following three points:

(1) The Transport Manager Mr. Vasadia was not competent to act as such and, therefore, he was not qualified to make the fresh appointments of the alleged new selectees and on that count the selection was bad;

(2) The selection Committee required to be appointed under Section 54 of the Act and which allegedly conducted the selection process, was not validly constituted in so far as Mr. Vasadia, who was incompetent to hold the post of the Transport Manager was one of the three members and secondly on the ground that the Committee, instead of four persons as required by Section 54(1) of the Act, was consisting of only three members and thirdly because the Secretary of the Transport Committee had acted as the Member of that Committee, pretending to be the head of the Department concerned, though in fact he was not;

(3) The petitioners were not appointed as temporary hands, but were permanent hands appointed to substantive posts and, therefore, could not be asked to make room for the alleged new selectees.

5. A preliminary contention to the maintainability of these petitions was raised on behalf of the respondent No. 2-Transport Manager and the Municipal Corporation and also by the new selectees, some of whom had come forward to join as the respondents in the first two of the four petitions. They contended that the petitioners, who had come to be appointed initially in the month of February 1980 themselves had been appointed by the respondent no. 2-Mr. Vasadia and that they themselves had tried their luck at the very selection at which the selectees came to be selected to the misfortune of the petitioners, who were declared failures, should not be heard by this Court, exercising its discretionary jurisdiction under Article 226 of the Constitution of India, particularly when the holding of that public post of a Transport Manager by Mr. Vasadia was sought to be called in question collaterally in these proceedings, secondly because there was no specific prayer for a writ of quo warranto in these petitions and thirdly because the petitioners had not come with clean hancs in so far as they had suppressed the fact of their having taken chance at the selection test and their having failed and also because they were on their own showing initially appointed as temporary bands. As I am taking up all the questions together because of their being interwoven, I do not think it necessary to deal with these preliminary issues separately as preliminary issues. I, therefore, proposed to take up the points canvassed by Mr. Patel in the order in which they are set out above.

6. The first question is whether the petitioners can be permitted to challenge the holding of the post of Transport Manager by Mr. Vasadia when the very existence of the petitioners in these petitions is rooted in the appointment orders issued by very Mr. Vasadia in their favour. In my opinion, there is considerable force in this contention put forward on behalf of the respondents. If presumptively the plea put forward by the petitioners is upheld, it would be required to be held as a matter of necessary and inevitable corollary, that the petitioners holding of the post under orders issued by Mr. Vasadia also would automatically fall through. The petitioners, after having availed themselves of the orders issued by the socalled unauthorised person, cannot be in a writ jurisdiction of this Court permitted to challenge the very substratum on which their alleged right stands. So on this ground, I would hold that the petitioners are not entitled to call in question the appointment of the respondent no. 2 as the Transport Manager. Secondly this question is sought to be raised collaterally without there being any prayer for issuance of a writ of quo warranto. This point also deserves to be upheld. Had the petitioners even amended their petition by seeking a writ of quo warranto, the court would have been quite loath to entrust them with the writ for the obvious reason that they themselves were the beneficiaries of the very holding of the post by very Mr. Vasadia.

7. In this connection a brief reference to the judgment of Travancore & Cochin High Court is necessary to be made. It is the case of Parameswaran Pillai Bhaskran Pillai and Am. v. State Prosecutor AIR 1951 Travancore-Cochin page 45. The Division Bench of that High Court referred to this branch of law and clearly quoted with approval the observations of the law from the case of Toronto Ry. Co. v. City of Toronto (1919) 46 (Canadian) D.L.R. 547 in Cooley's Constitutional Limitations, 8th Edition. I also would like to reproduce that quotation:

His color of right may come from an election or appointment made by some officer or body having colorable but no actual right to make it; or made in such disregard to legal requirements as to be ineffectual in law or made to fill the place of an officer illegally removed, or made in favour of a party not having the legal qualifications; or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be.

On first principles also, the position is unassailable. I, therefore, decline to permit the petitioners to raise this question of the validity or otherwise of the appointment of the respondent No. 2 to the post of the Transport Manager.

8. In order to give touch of finality to this judgment, however, I would like to deal with the questions, of course not so elaborately as I would have otherwise done, because the question had been pursued in all its seriousness. Mr. Patel in this connection invited my attention to Sections 40, 50, 50(1) and (3), 50(4), 465(1) of the Act and also to the Regulations framed for the purpose of posts of municipal transport service by the Corporations, purporting to act under Section 465(1)(a) of the Act.

Section 40 of the Act provides for the post of Transport Manager. In the event of the Corporation acquiring or establishing a Transport Undertaking, the Corporation shall, subject to the approval of the State Government, appoint a fit person to be the Transport Manager of the Transport undertaking. It is, therefore, evident that the Transport Manager is to be appointed by the Corporation as such al belt subject to the approval of the State Government. It is a common ground that the post of a Transport Manager is a statutory post. Chapter IV of the Act deals with other Municipal officers and servants, their appointments and conditions of service. This is in fact the heading of the Chapter. Below that Caption, the officers are enumerated and they are the City Engineer, Medical Officer of Health, Municipal Chief Auditor, Municipal Secretary, the Deputy Municipal Commissioner and Assistant Municipal Commissioner. The whole Chapter IV, therefore, ordinarily should be understood to have reference to these officers, that is, their appointments and conditions of service. Section 50 of the Act, which was pressed into service, reads as follow:

50(1) The Transport Manager and all officers appointed under Section 45 shall, subject to the provisions of Sub-section (2), devote their whole time and attention to the duties of their respective offices and shall not engage in any other profession, trade or business therefor.

Sub-section (3) then provides further that the Transport Manager or any other officer referred to in Sub-section (J) shall be removable at any time from office for misconduct or for neglect of, or incapacity for, the duties of his office on the votes of not less than one half of the whole number of councillors. This Section 50, therefore, refers to the Transport Manager on one hand as the officer appointed under Section 40 and other officers appointed under Section 45 on the other and Section 50 lays down that they are expected not to indulge in any other activities except the functions of the Corporation. Section 50(4), which was vehemently, pressed into service is reproduced below:

50(4) In all matters not otherwise provided for in this Act, the conditions of service of the Transport Manager and other officers specified in Sub-section (1) shall be regulated by the Regulations.

Mr. Patel urged that the conditions of service, even of the Transport Manager, could be regulated by Regulations to be made by the Standing Council under Section 465(1) of the Act. The 'conditions of services' are distinct from the 'qualifications for the post.' Conditions of service come to govern the employee from the time he is appointed till he retires and till he claims to be entitled to post retirement benefits. What qualifications are needed for the post are the requisites of the time immediately preceding the appointment of the person, that is, immediately before the commencement of the service. Qualifications for the post, therefore, by no stretch of imagination could be said to be the conditions of service. So reference to Section 50(4) and subsequent reference to Regulations framed under Section 465(1) of the Act is, therefore, uncalled for.

9. Section 465(1) of the Act also deserves to be noted. Under that section, the Standing Committee is given power to frame Regulations from time to time in respect of various matters enumerated in Clause (a) to (I) of that Sub-section (1) and other clauses of Sub-sections (2) and (3). Clause (a) clothes the Standing Committee with the power to frame Regulations, prescribing qualifications required for appointments to posts in municipal service other than those specified to Sub-clause (a) of Clause (3) of Section 457. Section 457 deals with the Government's powers as the authority exercising powers of delegated legislation to make Rules. Under Section 457(3), the State Govt. is entitled to prescribe by Rules made under Section 45 (which Rules become part of the Act itself by legal fiction), the qualifications necessary for and the method of appointment to posts the power of appointment to which vests in the Corporation. I have already said above that the power of appointment to the post of a Transport Manager vests in the Corporation and, therefore, the power to make Rules for the qualifications necessary for and the method of appointment to the post of the Transport Manager are the powers of the State Government and not of the Standing Committee under Section 465. Section 465(1)(a) specifically excludes the Standing Committee's power to make Regulations prescribing qualifications for the post of those officers, who are required by the Act to be appointed by the Corporation. The Transport Manager is an Officer required to be appointed by the Corporation and so the Standing Committee had no power to make any Regulations, prescribing qualifications for the post of the Transport Manager. It. is no doubt true that in Chapter IV of the Regulations, the Standing Committee, and as a matter of the Corporation, did purport to lay down the qualification for the post of the Transport Manager. This is an exercise without authority of law and, therefore, is required to be avoided and totally left out of consideration. I therefore, hold that neither the Standing Committee under Section 465, nor the Corporation purporting to usurp the statutory powers of the Standing Committee under Section 465(1) of the Act, was competent to prescribe any qualifications, by resort to Section 465(1)(a) of the Act and, therefore, the very substratum of the petitioners' argument in this regard about the respondent no. 2 not fulfilling the requirements of the Regulation in respect of his qualifications, stands knocked out. For want of any qualifications, laid down by the Act or prescribed by rules by the State Government by exercise of powers under Section 467, the respondent no. 2 cannot be said to be not legally appointed. In this view of my finding, I do not deal with the arguments or Mr. Desai for the respondent no. 2 that Mr. Vasadia did fulfill the requirements of that Regulation.

10. Next comes the question of the constitution of the Selection Committee under Section 54 of the Act. Section 54(1) read with Sub-section (4) of the Act requires that there shall be a Staff Selection Committee consisting of the Transport Manager or any other officer designated by him in that behalf, the Municipal Chief Auditor, the Head of the Department concerned and not more than one other officer nominated by the Transport Manager. The Committee in question consisted of three persons, namely the Transport Manager, the Chief Auditor and one Mr. S.K. Shah, the Secretary of the Transport Service. Mr. Patel urged with appreciable vehemence that the said Secretary of the Transport Service could not be said to be the 'head' of the General Administration Department, because the Transport Manager himself was the head of that Department. For the purpose of supporting his plea, he invited my attention to a Schedule published by the Ahmedabad Municipal Corporation in respect of the establishment of the Ahmedabad Municipal transport service. Under the caption of General Administration Department, there are mentioned in serial order the Transport Manager and the Deputy Transport Manager and the Secretary. Mr. Patel urged that when the Secretary was figuring at Sr. No. 3 in the General Administration Department, he could not be presumed to be the head of that particular section concerned. The Secretary as well as the Transport Manager stated that as far as the handling of this department is concerned, it is minded only by the Secretary and the Transport Manager and the Deputy Transport Manager are in the overall general charge of the entire transport service. There is no reason for me to discredit or doubt the solemn statements made by these two officers. The question of there being only three members as against four members, the answer could be found in Section 33 of the Act. Mr. Patel urged that this Section 33 had its place in Chapter II which deals with constitution of the municipal Corporation and municipal authorities. Section 33 is preceded by various sections, which deal with various duties. Section 33, therefore, in Mr. Patel's submission, should be interpreted to limit the scope only in respect of those Committees stated in that particular Chapter and cannot be lifted from that context and employed for the purpose of enlarging the scope of Section 54 of the Act. The context provides a good guide for interpretation, but the first and over-riding principle of interpretation is that if the text of the section itself is too clear and unambiguous and does not call for any extraneous assistance of such aides, like the placement of that provision in the whole set up, the text is to prevail. Section 33 of the Act provides that no act or proceeding of any Committee or sub-committee appointed under this Act shall be questioned on account of any vacancy in its body and Section 34 provides inter alia that no disqualification of or defect in the appointment of any person acting as a member of any committee or sub-committee appointed under this act shall be deemed to vitiate any act or proceeding of any such committee or sub-committee in which such person has taken part, provided the majority of the persons who were parties to such act or proceedings were entitled to act. The defect in the constitution of the Committee because of the vacancy remaining unfilled, therefore, does not vitiate the proceedings. This argument is not open to be raised by these petitioners, who, as said above, had already subjected themselves to this very Committee, had tried their luck and now they turn round and complain that the Committee was not validly constituted. Even if this plea is sustainable on its own merits, I would be reluctant to entertain it at the instance of these petitioners, who have now come with the cry that the Committee, which declared them failures, was not validly constituted.

11. This brings me to the last question regarding the petitioners having been appointed to permanent posts. The petitioners stated that their initial appointment was temporary and it was expressly stated to be so. They even admitted the fact that the undertaking, that was taken from them, showed that their services were liable to be terminated at any time without assignment of any reasons and without any notice and that their appointments were in the first instance limited to the period of one month. Simply because the Transport Manager or the authorities did not pass any express order extending the period of one month but allowed them to continue as before, would not convert their appointments into regular appointments, because as very Section 54 itself requires, they must pass through the test to be held by the Staff Selection Committee. Admittedly, the petitioners had not successfully gone through that test. Simply because they continued from March 1980 on completion of one month upto May, 1980, they cannot arrogate themselves the right to hold that post. No provision of law or logic has been brought to my notice, which would clothe them with such a right recognizable in a court of law. The Supreme Court has time and again stated that a person appointed on probation for a specific period continues to be on probation even though there is no specific order extending the period of probation. By analogy, the case of the petitioners would stand covered. The third ground also canvassed by Mr. Patel and other advocates, therefore, falls through.

In above view of the matter, all the petitions fail and stand rejected. Rule in all of them stands discharged with no order as to costs.


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