SCA/8344/1997 1/50 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8344 of 1997 With SPECIAL CIVIL APPLICATION No. 5670 of 1998 With SPECIAL CIVIL APPLICATION No. 5671 of 1998 With SPECIAL CIVIL APPLICATION No. 5675 of 1998 With SPECIAL CIVIL APPLICATION No. 4701 of 1998 With SPECIAL CIVIL APPLICATION No. 6922 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= DV SHAH & 9 - Petitioner(s) Versus AMC & 7 - Respondent(s) ========================================================= Appearance : MR GM JOSHI for Petitioner(s) : 1 – 10 in SCA No. 8344 of 1997 MR. Mukul Sinha, for Mr. M.C. Bhatt for petitioners in SCAs No. 5670, 5671, and 5675 of 1998. RULE SERVED for Respondent(s) : 2, MR SANDIP C SHAH for petitioners in SCA No. 4701 of 1998 Mr. NR SAHANI for petitioners in SCA No. 6922 of 1998 Mr. S.N. Shelat,Sr. Advocate with Mr. HS Munshaw, Mr. Prakash K. Jani for Mr. Mukund Desai, Mr. Sandip C. Shah etc. for respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 11/06/2007 SCA/8344/1997 2/50 JUDGMENT C.A.V. As common question of law and facts arise in this group of petitions and they are interconnected, they are being disposed of by this common judgment and order; 1. Special Civil Application No. 8344 of 1997 is filed by the respective petitioners who were at the relevant time working as Assistant City Engineers in Ahmedabad Municipal Corporation [hereinafter referred to as “AMC”] for an appropriate writ, direction or order quashing and setting aside the action of the respondent Corporation in issuing public advertisement dated 10th July 1997 and passing subsequent Resolution No. 997 dated 28th October 1997. It is also further prayed to quash and set aside the appointment of private respondents. It is also further prayed for an appropriate order restraining the General Body of the Corporation from approving the Standing Committee Resolution No. 997 dated 28th October 1997 and if such SCA/8344/1997 3/50 JUDGMENT resolution is passed the same may be quashed and set aside. It is also further prayed for an appropriate order or direction restraining the respondent Corporation from making any appointment from the waiting list to any vacancy in respect of which no decision is taken by the Standing Committee. By way of amendment, the petitioners also prayed for an appropriate writ, order or direction quashing and setting aside the resolution of the Standing Committee of AMC appointing respondents No. 6, 7 and 8 and also to quash and set aside the consequential orders of appointment issued in their favour. While admitting the said Special Civil Application, the learned Single Judge has granted interim relief directing that appointment of the concerned respondents as 'Deputy City Engineer' shall be ad-hoc and subject to the result of the present petition. 2. Special Civil Application No. 4701 of 1998 is also filed by the Assistant City Engineers working in the AMC for an appropriate SCA/8344/1997 4/50 JUDGMENT writ, direction or order quashing and setting aside the impugned Resolution No. 159 dated 15.5.1998 of the Standing Committee of AMC and consequently to set aside the appointment of respondents No. 5 to 10 of the present Special Civil Application on the post of Deputy Engineer. It is also further prayed for an appropriate writ, direction or order directing the respondents to operate the Resolution No. 997 dated 28.10.1997 also of Standing Committee of the AMC and to appoint the petitioners on the post of Deputy Engineer in AMC. It is also further prayed for an appropriate writ, direction or order restraining the General Board of the Corporation from approving the Standing Committee Resolution No. 159 dated 15.5.1998. It is to be noted that while admitting the present Special Civil Application the learned Single Judge granted ad-interim relief directing that the impugned resolution dated 15.5.1998 of the Standing Committee of AMC shall not be taken up for confirmation by the General Board of the Municipal Corporation and the said interim relief SCA/8344/1997 5/50 JUDGMENT has been continued till final disposal and the respondents were directed to maintain status-quo which has also been continued. 3. Special Civil Applications No. 5670 of 1998, 5671 of 1998 and 5675 of 1998 are filed by the respective petitioners who are/were working as Assistant City Engineers in AMC for an appropriate writ, direction or order quashing and setting aside the impugned resolution passed by the General Board of AMC dated 20.11.1997 as well as the Resolution dated 15.5.1998 passed by the Standing Committee of the AMC by further directing the AMC to operate the select list prepared by the Standing Committee of the AMC dated 28.10.1997 with retrospective effect and to quash and set aside the appointments of respondents No. 4 to 9 as Deputy City Engineers. 4. Special Civil Application No. 6922 of 1998 is filed by the petitioner who was at the relevant time working as In-charge City Deputy Engineer with the AMC for a declaration that all SCA/8344/1997 6/50 JUDGMENT the vacancies advertised vide Annexure A for the post of Deputy City Engineers are required to be filled-in on the basis of the list prepared by the Staff Selection Committee as reflected in Annexure B and that the Standing Committee has no power to depart from or modify the list prepared by the Selection Committee and further directing the respondent No.1 AMC to operate the said list in terms of the said declaration. It is also further prayed for an appropriate writ, direction or order quashing and setting aside the 2nd and 3rd lists prepared by the Standing Committee on 28.10.1997 and 15.5.1998. 5. At the outset, it is required to be noted that in all these petitions the dispute is with regard to appointment to the post of Deputy City Engineers in AMC. The hierarchy of the posts in Engineering Department of AMC is as under; (1) Assistant Engineer; (2) Assistant City Engineer; (3) Deputy City Engineer; SCA/8344/1997 7/50 JUDGMENT (4) Additional City Engineer; (5) City Engineer; (6) Deputy Municipal Commissioner (Engineering). The post of Deputy City Engineer was initially filled-in by promotion from the cadre of Assistant City Engineer but subsequently the policy was changed in the year 1985 and it was decided to fill-up 33% posts of Deputy City Engineers by direct recruitment and 67% posts by way of promotion from the post of Assistant City Engineers. 6. The facts and chronological events leading to the present Special Civil Applications in nutshell are as under; An advertisement was issued in 'Sandesh' daily on 10th July 1994 inviting applications for preparation of Select List + Wait List for six posts of Deputy City Engineer out of which two were reserved for Scheduled Tribes ('ST') and three were reserved for Socially and SCA/8344/1997 8/50 JUDGMENT Educationally Backward Class ('SEBC') and one for General Category. That as all the employees of the Corporation were also entitled to apply and to be appointed as direct recruits, all the petitioners applied for being recruited directly to the post of Deputy City Engineer. Pursuant to the said advertisement, 127 applications were received and 99 candidates were called for interviews. It appears that the Committee consisting of Municipal Commissioner, Deputy Municipal Commissioner (Engineering), City Engineer and Chief Auditor held interviews, out of which 89 candidates remained present. That the Municipal Commissioner prepared a list on the basis of the said interviews wherein only one candidate, i.e., Solanki Kishanlal Jayantilal (SEBC) was recommended for appointment vide proposal dated 8th September 1997 and prepared the waiting list of 11 persons for the posts which were to be fallen vacant in future on the post of Deputy City Engineers on further promotion from the post of Deputy City Engineers to Additional City Engineers. It is also required to be noted SCA/8344/1997 9/50 JUDGMENT that the Municipal Corporation also recommended that only one candidate belonging to ST has applied, however at the time of interview his performance was found not satisfactory and was not found suitable for the said post and therefore it was recommended that the efforts to get the candidates belonging to ST community be continued and till then the candidates from the waiting list should be appointed on purely ad-hoc and temporary basis. That said recommendation dated 8th September 1997 of the Municipal Commissioner was submitted before the Standing Committee of AMC for its consideration and for further forwarding it to the Corporation. The Standing Committee again interviewed all the candidates and by Resolution No. 997 dated 28.10.1997 prepared a list wherein 3 employees/candidates namely (1) Limbachia Vinod Parshottambhai (SC/ST); (2) Mahida Rashmikant Philipbhai (General category); and (3) Shah Vijay Bapalal Shah (General category) were recommended for appointment on one year probation while names of six candidates, i.e., (1) Shah Mukesh SCA/8344/1997 10/50 JUDGMENT Chinubhai; (2) Gor Dhilipbhai Shantilal; (3) Arora Dilipkumar Trilokchand; (4) Acharya Prakash Hiralal; (5) Prajapati Suresh Prabhudas; and (6) Parekh Vijay Chandulal were recommended for keeping in waiting list for 2 years subject to approval of the Municipal Corporation. That the Resolution No. 997 dated 28.10.1997 of the Standing Committee of the AMC was placed before the General Board of the AMC and General Board of the AMC did not approve of the selection made by the Standing Committee and remanded the matter to the Standing Committee for reconsideration by passing a one line resolution that the said work is sent back for reconsideration of the Standing Committee. That thereafter after a period of more than six months the Standing Committee in its meeting held on 15.5.1998 reconsidered the proposal and prepared altogether a fresh select list and made a proposal for selection of six candidates whose names are mentioned as under for one year probation and 3 candidates in waiting list; SCA/8344/1997 11/50 JUDGMENT 1. Modi Mukesh Kantilal (SEBC); 2. Mahida Rashmikant Philipbhai; 3. Vijay Bapalal Shah; 4. Vashrambhai Harjibhai Patel; 5. Dilipkumar Trilokchand Arora; 6. Patel Anand Bavabhai. The said Resolution dated 15.5.98 recommending to appoint aforesaid 6 candidates as Deputy City Engineers on one year probation was subject to approval of the AMC (General Board of the AMC) and with a further condition that appointments of candidates at Serial No. 3 to 6 were on condition that as and when the candidates belonging to ST and SEBC categories are available they are to be relieved. Inspite of the aforesaid resolution and the conditions and even before the said resolution is placed before the General Board of the AMC for its consideration/approval, on the same day i.e., 15.5.1998 itself at around 8.00 p.m. appointment orders came to be issued to the aforesaid 6 candidates who immediately resumed their duties. At that stage and before the SCA/8344/1997 12/50 JUDGMENT resolution dated 15.5.1998 could be placed before the General Board of the AMC for its approval the petitioners have preferred the present Special Civil Applications and prayed for the aforesaid reliefs and in some of the matters this Court granted interim relief directing the respondents to maintain status-quo and not to place the resolution dated 15.5.1998 before the General Board for its approval/consideration. As stated above, by interim order appointments of concerned respondents on the post of Deputy City Engineer are directed to be ad-hoc and subject to the result of SCA No. 8344/97. As stated above in SCA No. 8344/97 the respective petitioners had challenged the resolution of the Standing Committee dated 9.9.97/28.10.97 as well as subsequent resolution dated 15.5.98 of the Standing Committee of the AMC on the basis of which private respondents are appointed on the post of Deputy City Engineers. In SCA No. 4701/98 the petitioner belonging to SEBC category has challenged the resolution No. 159 of the Standing Committee of the AMC dated 15.5.98 and SCA/8344/1997 13/50 JUDGMENT to operate resolution No. 997 dated 28.10.97. In SCAs. No. 5670/98, 5671/98 and 5675/98, respective petitioners have prayed to quash and set aside the resolution passed by the General Board dated 28.11.97 and also the resolution passed by the Standing Committee of the AMC dated 15.5.98 and to operate the select lists prepared/recommended by the Standing Committee vide resolution No. 997 dated 28.10.1997. Thus it appears that in some of the petitions the prayer is to operate the resolution No. 997 of the Standing Committee dated 28.10.1997 and in some petitions the prayer it to make appointment on the basis of the recommendation by the Municipal Commissioner dated 8th September 1997. However, in all these petitions the resolution of the standing committee dated 15th May 1998 by which the private respondents are appointed on the post of Deputy City Engineers is under challenge. 7. Shri GM Joshi, learned advocate has appeared on behalf of the petitioners of Special SCA/8344/1997 14/50 JUDGMENT Civil Application No. 8344 of 1997; Shri Mukul Sinha, learned advocate has appeared for Shri MC Bhatt, learned advocate appearing on behalf of the petitioners of Special Civil Applications No. 5670 of 1998, 5671 of 1998 and 5675 of 1998; Shri Sandip Shah, learned advocate appeared on behalf of the petitioners in Special Civil Application No. 4701 of 1998; and Shri NR Sahani, learned advocate appeared on behalf of the petitioner of Special Civil Application No. 6922 of 1998. Shri SN Shelat, learned Senior Advocate appeared with Shri HS Munshaw, learned advocate on behalf of Ahmedabad Municipal Corporation and Shri Prakash K. Jani, learned advocate appeared on behalf of one of the appointees, i.e., Deputy City Engineer who is appointed pursuant to the Resolution dated 15th May 1998 of the Standing Committee of the AMC. 8. Shri GM Joshi, learned advocate for petitioners of Special Civil Application No. 8344 of 1997 has submitted that the advertisement was issued on 10th July 1997 inviting applications for SCA/8344/1997 15/50 JUDGMENT six posts of Deputy City Engineers, out of which two posts were reserved for ST candidates; three were reserved for SEBC candidates; and one for General category candidates. He has further submitted that the said advertisement was for preparation of Select list-cum-Wait list and 3 posts were to be filled in on regular basis and 3 names were to be placed in the Wait List. It is submitted that instead of doing so the Corporation has appointed candidates belonging to General Category against the posts reserved for ST and SEBC and that too by operating the Wait List which is absolutely illegal. It is also further submitted by him that after the applications were invited the Committee consisting of Municipal Commissioner, Deputy Municipal Commissioner (Engineer), City Engineer and Chief Auditor held the interviews and prepared the Select Lists and the same though not permissible was sent to the Standing Committee for its approval; the Standing Committee held fresh interviews of all the candidates and prepared another Select List which was not SCA/8344/1997 16/50 JUDGMENT approved by the General Board; again after a period of six months the Standing Committee prepared altogether a new Select List by Resolution dated 15.5.1998; though it was subject to the approval of the General Board of the Corporation and the appointments were to be made on one year probation till candidates belonging to ST and SEBC candidates are available, without waiting for approval of the General Board all of a sudden surreptitiously appointments were made on 15th May 1998 by issuing appointment orders at 8.00 p.m. whereby private respondents came to be appointed. It is submitted that the Resolutions of the Standing Committee are absolutely illegal and it is requested that appointments should be made on the basis of the recommendations of the Municipal Commissioner on the basis of the interviews held on 1st and 2nd September 1997. It is also submitted by Shri Joshi, learned advocate appearing for respective petitioners of SCA No. 8344/97 that the first affidavit on behalf of the Municipal Corporation dated 22nd January 1998 is absolutely misleading and in fact further SCA/8344/1997 17/50 JUDGMENT affidavit-in-reply was required to be filed by the Corporation explaining about the earlier affidavit and just a contrary stand has been taken in the 2nd reply. He has also further submitted that as such considering the provisions of the BPMC Act the resolutions passed by the Standing Committee are absolutely illegal and contrary to the provisions of the Statute. Therefore it is requested to allow the present Special Civil Applications. 8.1. Learned advocate appearing on behalf of respective petitioners of other Special Civil Applications have adopted the submissions made on behalf of the petitioners of Special Civil Application No. 834 of 1997 insofar as they relate to jurisdiction of the Standing Committee for making appointment on the post of Deputy City Engineers as also with respect to legality and validity of the resolutions passed by the Standing Committee of the AMC by which the private respondents are appointed on the post of SCA/8344/1997 18/50 JUDGMENT the Deputy City Engineers on the basis of the resolution dated 15th May 1998. 9. Shri SN Shelat, learned Senior Advocate appearing on behalf of the Corporation has submitted that the appointments and the Resolution dated 15th May 1998 of the Standing Committee of the AMC were subject to approval of the General Board of the Corporation, and before the said resolution could be placed before the General Board for consideration the petitioners have approached before this Court by way of these Special Civil Applications and in view of the interim order passed by this Court the General Board could not consider the said list. Thus, the present Special Civil Applications are premature. It is further submitted that since there was a time-gap between the recommendation made by the Municipal Commissioner and the reconsideration of the resolution by the Standing Committee on 15th May 1998 it was found that there were six vacancies which existed and therefore SCA/8344/1997 19/50 JUDGMENT the recommendations were made by the Standing Committee for appointment against those vacancies and the Standing Committee also recommended that against the reserved posts of ST and SEBC fresh attempts should be made by releasing advertisements. He has further submitted that out of the six candidates who were appointed on the post of Deputy City Engineers on the basis of the resolution of the Standing Committee dated 15th May 1998, Modi Mukesh Kantilal has retired on 30th September 2002 after acceptance of resignation under VRS and another candidate, namely Vijay Bapalal Shah has retired on 30th September, 2006. He has also further submitted that during the pendency of the present Special Civil Application another candidate who was appointed pursuant to the resolution of the Standing Committee dated 15th May 1998, i.e., Mahida Rashmikant Philipbhai is at present appointed as 'Additional City Engineer' through direct recruitment and so far as other candidates who are appointed pursuant to the resolution of the Standing Committee dated 15th May 1998, i.e., SCA/8344/1997 20/50 JUDGMENT Vashrambhai Harjibhai Patel; Dilipkumar Trilokchand Arora; and Patel Anand Bavabhai are concerned they are at present holding the post of Additional City Engineer by promotion from the post of Deputy City Engineer. Shri Shelat, learned Senior Advocate has further submitted that as such the Corporation is the competent authority to make appointment to the post of Deputy City Engineer and at the instance of the petitioners the Corporation is prevented from considering the list prepared by the Standing Committee. It is submitted by him that considering the decision of the Division Bench of this Court in the case of (Dr.) R.R. Shah Vs. Municipal Commissioner, Ahmedabad and Others, reported in 1993(1) GLH Page 339, if it is held that the Standing Committee was not justified in making the recommendation for appointment, in that case the Corporation be directed to consider the recommendation of the Municipal Commissioner and be directed to make its own decision in accordance with law within specified period and until then the appointment of the respondent be SCA/8344/1997 21/50 JUDGMENT continued as ad-hoc as they have been occupying the post since last several years and are qualified also. It is submitted by him that if the respondents are directed to be reverted irrespective of further consideration by the AMC, the administration will suffer great inconvenience. Shri Shelat has relied upon one order passed by the Hon'ble Supreme Court dated 3rd December 1999 in Civil Appeal No. 6966 of 1999 between Municipal Commissioner for City of Ahmedabad and Another Vs. Sansare P. Dattaram & Ors., whereunder with regard to the post of Assistant Municipal Commissioner the appointment was found to be illegal, the Hon'ble Supreme Court directed the Corporation to complete the exercise of filling up the vacancy of Assistant Municipal Commissioner in accordance with the rules applicable for appointment to that post within a period of two months and during the said period the candidate who was appointed on the post of Assistant Municipal Commissioner and whose appointment was found to be illegal and dehors the rules was allowed to function as SCA/8344/1997 22/50 JUDGMENT Assistant Commissioner subject to the result of fresh selection. Therefore it is requested to continue the private respondents as 'ad-hoc' appointees till a fresh decision is taken by the Corporation considering the recommendation of the Municipal Commissioner. 9.1. Shri PK Jani, learned advocate appearing on behalf of one of the selectees/appointees has tried to support the action of the respondents in appointing him on the post of Deputy City Engineer by submitting that as the respondents No. 7 and 8 who are at present working on promotion to the post of Additional City Engineer may not be disturbed. 10. Heard the learned advocates appearing on behalf of the respective parties and also considered the Written Submissions submitted on behalf of the petitioners of Special Civil Application No. 8344 of 1997 as well as the Written Submission on behalf of respondent No.1, SCA/8344/1997 23/50 JUDGMENT AMC. 11. The dispute is with regard to the post of Deputy City Engineer in AMC. At the relevant time the scale of pay of the Deputy City Engineer was Rs. 3000-4500. 12. Before considering the facts of the present cases and considering the controversy in the present Special Civil Applications certain statutory provisions with regard to appointment are required to be referred to. Section 53 of The Bombay Provincial Municipal Corporations Act, 1949, ['the BPMC Act' for short ] provides for power of appointment in whom to vest. In Section 53 of the BPMC Act, the Legislature has created three hierarchial levels for vesting of power for makign appointments to different posts in the Corporation. Under sub-section (1) the power of making appointments to all posts carrying pay- scale in cases of certain specified amount vest in the Corporation. So far as the post of SCA/8344/1997 24/50 JUDGMENT Deputy City Engineer is concerned, considering the pay-scale carried with the said post the power of appointments to the said posts vest in the Corporation. Section 54 of the BPMC Act provides for manner of making appointments. However in view of the fact that Section 54 of the Act would be applicable with regard to all the appointments in the municipal service other than appointments referred to in sub-section (1) of Section 53, Section 54 of the Act would not be applicable with regard to the post of Deputy City Engineer. Chapter III provides for method of appointment of certain municipal officers. It reads as under; “1. Manner of making appointments._ Save in the case of temporary appointments made under sub-section (7) of section 45 and in the case of acting appointments made under section 58 no person shall be appointed to any of the posts the power of appointment to which vests in the Corporation unless he possesses SCA/8344/1997 25/50 JUDGMENT the qualifications