SCA/2662/1984 1/52 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2662 of 1984 With SPECIAL CIVIL APPLICATION No. 4483 of 1984 With SPECIAL CIVIL APPLICATION No. 1593 of 1990 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ================================================= 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 ? ================================================= MANUBAHI M. BHATT & 3 - Petitioners Versus AHMEDABAD MUNICIPAL CORPN. & 2 - Respondents ================================================= Appearance : 1.Special Civil Application No. 2662 of 1984 SERVED BY AFFIX.(N) for Petitioners. MR BP TANNA for Respondent No. 1. SCA/2662/1984 2/52 JUDGMENT NOTICE NOT RECD BACK for Respondent(s) : 2 – 3. 2.Special Civil Application No. 4483 of 1984 GIRISH PATEL & ASSOCIATES for Petitioners. MR BP TANNA for respondent No. 1. 3.Special Civil Application No. 1513 of 1990 MRS KETTY A MEHTA WITH MR CB DASTOOR for petitioners. MR BP TANNA for respondent No. 1. =============================================== CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 24/03/2006 COMMON ORAL JUDGMENT 1.Since the subject matter of all the three petitions is inter-connected and they were earlier ordered to be heard together, they are taken up for hearing and are being disposed of by this common judgment. 2.Special Civil Application No. 2662 of 1984 is filed by in all four petitioners praying for quashing and setting aside the Resolution of the Standing Committee dated 09.05.1984 and the Resolution of the Municipal Commissioner dated SCA/2662/1984 3/52 JUDGMENT 10.05.1984. Directions were also sought for by the petitioners in this petition to promote them to the post of Valuation Officer in the pay scale of Rs. 650 – 1040 and to grant them all consequential benefits like seniority, promotion, pay, arrears of salary etc. on that basis. The petitioners have also prayed for the prohibitory order restraining the respondents from taking any valuation, survey and assessment work from the Ward Officers. 3.Special Civil Application No. 4483 of 1984 is filed by in all 23 petitioners praying for quashing and setting aside the order dated 28.08.1984 and also praying for the directions to the respondents to offer the pay scale of Rs. 700 – 1300 to the petitioners. The petitioners have also prayed for quashing and setting aside the appointments of respondent Nos. 2 to 7. By way of an interim relief, the petitioners have prayed for the directions to SCA/2662/1984 4/52 JUDGMENT the respondent No. 1 – Corporation to continue to pay salary in the pay scale of Rs. 700 – 1300 to the petitioners which they were receiving prior to 20.08.1984. The petitioners have also prayed for the suspension of the order dated 20.08.1984 and stay against the implementation of the order of reversion passed by the respondent Corporation on 20.08.1984. 4.Special Civil Application No. 1593 of 1984 is filed by in all four petitioners praying for the directions to the respondent – Corporation to offer the petitioners duties as Ward Officers or of similar such character in the services of the Corporation. The petitioners have also prayed for the direction to the respondents to grant the petitioners continuity of benefit in the scale of pay of Ward Officers w.e.f. 20.08.1984, the date on which the petitioners were reverted to the scale of Rs. 550 – 900 and that the petitioners be paid the SCA/2662/1984 5/52 JUDGMENT arrears of salary w.e.f. 20.08.1984 till 21.04.1988 in respect of petitioners No. 1 & 2 and till 31.12.1988 in respect of petitioner No. 3 when the petitioners were placed in the scale of Rs. 2200 – 4000. The petitioners have also prayed for the directions to the respondent – Corporation to grant continuity of benefit to the petitioners in the scale of Rs. 700 – 1300 w.e.f. 28.11.1981 till 21.04.1988 and till 31.12.1988 for petitioner No. 3 for the purpose of retiral benefits. 5.The brief facts giving rise to all the three petitions are as under :- With a view to bring decentralisation in the services of the Corporation and in order to meet with the demands of the public and to provide efficient services to them in the context of the expansion of the Municipal Corporation area, it was decided in 1981 that SCA/2662/1984 6/52 JUDGMENT the Corporation be divided into 9 zones and it was further decided to have Zonal Officers and Ward Officers. The personnels of the Ward Offices were to be drawn from the Corporation employees, and only those employees who were competent enough to man the services were to be selected for the posts of Ward Officers. The posts of Ward Officers were to carry the time scale of Rs. 700 – 1300, while those of Zonal Officers were to carry the time scale of Rs. 1300 – 1700 and Ward Officers were entitled to motor cycle allowance and other allowances. The main duties of the Ward Officers were maintenance, sanitation and conservancy, lease and licences and review and accounts. The proposal was mooted by the then Municipal Commissioner. The Standing Committee of the Corporation considered the said proposal and passed a Resolution on 08.09.1981. It was resolved that separate ex-cadre posts of Ward Officers in the time scale of Rs. 700 – 1300 be SCA/2662/1984 7/52 JUDGMENT created and recruitment from the Municipal employees having 7 years of experience be made and the employees so selected to these posts were to continue to have their lien in the parent cadre. The Standing Committee, vide its resolution dated 09.09.1981 approved of the recommendations made by the Municipal Commissioner. The said recommendations were placed before the General Board of the Municipal Commissioner and the General Board by its Resolution dated 29.09.1981 approved the Resolution of the Standing Committee. 6.Pursuant to the Resolution of the Standing Committee, a circular was issued by the Corporation and circulated amongst the employees of the Corporation so as to enable them to apply for the post of Ward Officers. According to the Circular, all posts of Ward Officers were permanent in the time scale of Rs. 700 – 1300 and they would be entitled to SCA/2662/1984 8/52 JUDGMENT motorcycle allowance and other allowances. The qualifications were Graduate of any branch or any equivalent qualification and that the employees must have put in at least seven years service in any department of the municipal Corporation. The appointment was to be made by selection. Pursuant to the said Circular, 800 employees of the Corporation applied for being considered for the said posts of Ward Officers. The staff selection committee prepared a list of 46 persons and the first 29 were selected and 16 were kept on the waiting list. 7.On 19.03.1982, nine more posts of Ward Officers were created and again by circular dated 29.03.1982, applications were invited for being considered for the said posts. There were 500 applicants, out of whom a list of 33 persons was prepared by the selection committee. The petitioners in Special Civil Application No. 1593 of 1990 were persons who have been SCA/2662/1984 9/52 JUDGMENT appointed to the post of Ward Officers pursuant to the said circular. 8.The Municipal Corporation on 09.05.1984 proposed conversion of the 9 Zones into 5 Zones. The proposal was accepted by the Standing Committee. The Standing Committee resolved that out of 36 Ward Officers, 24 Ward Officers were absorbed and transferred to the valuation office. Their designations were to remain as Ward Officers. On 10.05.1984, 20 Ward Officers were assigned the work of valuation and transferred to the valuation department. The petitioners in Special Civil Application No. 1593 of 1990 were transferred to the engineering department by Resolution dated 14.05.1984. On 28.08.1984, the zonal system was totally closed and the petitioners were reverted to the original cadre of Assistant Engineers by an order No. 6438 dated 29.08.1984 i.e. to the scale of Rs. 550 – 900. SCA/2662/1984 10/52 JUDGMENT 9.Some of the officers have challenged the action of the Corporation in reverting them from Ward Officers to their parent cadre by filing Special Civil Application No. 4483 of 1984 which has been admitted by the Division Bench of this Court and interim relief protecting their scale of pay has been granted on 27.09.1984. Some of the petitioners of the said Special Civil Application No. 4483 of 1984 preferred Civil Application No. 593 of 1989 for their absorption as Ward Officers or on a post of similar character, inter alia, contending that some of the petitioners were already absorbed as Administrative Officers, which were the posts equivalent to Ward Officers. When the said application came up for hearing, the learned advocate appearing on behalf of the Corporation stated that as and when the post of Ward Officers would be filled in, all the petitioners would be absorbed. SCA/2662/1984 11/52 JUDGMENT 10.During the pendency of this petition, the petitioners of Special Civil Application No. 4483 of 1984 have been absorbed either as Ward Officers or as Administrative Officers. The petitioner Nos. 1,2 & 4 of Special Civil Application No. 1593 of 1990 have been promoted as Assistant City Engineers and the petitioner No. 3 has been promoted by an order dated 31.12.1988 to the said post in the scale of Rs. 700 – 1300. 11.The first petition being Special Civil Application No. 2662 of 1984 was filed against assignment of valuation work to the Ward Officers and against the absorption of these ex-cadre Ward Officers under the Assessor and Tax Collector for doing valuation and assessment work and denial of promotion to the petitioners to the post of Valuation Officers in the pay scale of Rs. 650 – 1040. According SCA/2662/1984 12/52 JUDGMENT to the petitioners, the said action of the respondent Corporation was arbitrary, capricious, discriminatory, vitiated by malafide, both legal and factual and effect a change in contravention of Section 9A and 33 of the Industrial Disputes Act and violative of Articles 14 & 16 of the Constitution of India. The petitioner Nos. 1 to 3 of this petition were among the senior most eligible employees for the post of Valuation Officer in the pay scale of Rs.650 – 1040. The respondent Nos. 2 & 3 in this petition were the Ward Officers, ex- cadre employees who have been ordered to be absorbed under the Assessor and Tax Collector. Despite the fact that the petitioner Nos. 1 to 3 were among the senior most eligible employees for promotion, they were denied the said promotion on the abolition of the post of Valuation Officer vide Resolution of the Standing Committee dated 09.05.1984. Pursuant to this Resolution, the Ward Officers who were SCA/2662/1984 13/52 JUDGMENT ex-cadre employees, have been ordered to be absorbed under the Assessor and Tax Collector for doing the valuation and assessment work. Thus, Ward Officers never in their past have worked as a Valuation Officer and they have no experience of valuation assessment work. Vide Resolution dated 10.05.1984, 20 Ward Officers were absorbed for doing valuation and assessment work under Assessor and Tax Collector. It is the case of these petitioners that they were due and eligible for promotion to the post of Valuation Officer in the pay scale of Rs. 650 – 1040 and but for the absorption of the Ward Officers, the petitioners would have been appointed to the post of Valuation Officer in the said pay scale. It is their case that the denial of promotion to the petitioners was contrary to the award of the Industrial Tribunal. The petitioners have experience of valuation and assessment work and they have been appointed by SCA/2662/1984 14/52 JUDGMENT the respondent Corporation to the post of Valuation Officers in the past on many occasions as and when required. The post of Ward Officers was ex-cadre post. As against this, the post of Valuation Officer was the post attached with the statutory duties as laid down in Chapter 8 of Schedule A of the Bombay Provincial Municipal Corporation Act, 1949. Though the Resolution was passed, the same was not implemented. Necessary records and stationary for doing valuation, survey and assessment work was not ready and available and hence, till the date of filing of the petition, only recovery work was being done by the Ward Officers and had not been assigned the valuation, survey and assessment work. 12.Notice was issued by this Court on 22.05.1984 in this petition and ad-interim relief in terms of para 13 (a) was granted whereby the respondent – Corporation was restrained from SCA/2662/1984 15/52 JUDGMENT implementing the resolution of the Standing Committee dated 09.05.1984 and the Municipal Commissioner dated 10.05.1984. The petition was thereafter admitted and the interim relief was ordered to be continued in the same form on 27.09.1984. 13.In Special Civil Application No. 4483 of 1984, the case of 23 petitioners was that on 28.08.1984, all the Ward Officers were served with orders reverting them to their original posts. The posts of Ward Officers were permanent ex-cadre posts. The approval of the General Board of the Municipal Corporation was also sought for as required under the Act and the Municipal Corporation had approved the said proposal of the Standing Committee by Resolution dated 29.09.1981. The Standing Committee has not passed any Resolution for abolition of the posts of Ward Officers. On the contrary, the Standing Committee in its SCA/2662/1984 16/52 JUDGMENT Resolution dated 09.05.1984 has resolved that if as a result of the reorganization of the zones, some Ward Officers, Head Clerks, Peons become surplus in their zones, it was competent for the Municipal Commissioner to place them elsewhere and he was authorized to act accordingly. The definite purpose of the Standing Committee was that 24 Ward Officers were to be utilised in various establishments of the Corporation. Thus, Resolution of the Standing Committee made the provision clear that the Ward Officers would continue to have their designation as Ward Officers and that their salary would continue to be the same and that instead of being under the zonal offices, they would be working under the respective establishments of the Corporation where they were required to work. It is also their case that as Ward Officers, they were required to attend to public complaints in respect of drainage, water conservancy, building etc. SCA/2662/1984 17/52 JUDGMENT Since these duties were to be discharged by the Corporation, the order directing the reversion of the petitioners was absolutely unjustified and since the zonal system was not completely abolished and city was divided into five zones, there was no reason for reverting the petitioners from the post of Ward Officers. The petitioners have also raised a contention that even after transfer of 24 Ward Officers to valuation department and 6 Ward Officers to octroi department, still 6 Ward Officers continued to function as Ward Officers. The order reverting the said 6 Ward Officers was arbitrary and discriminatory and no valid reason existed for their reversion. It is only because of the fact that the Ward Officers' posts were made permanent by the Municipal Corporation, the petitioners had applied for being considered for the said post. The petitioners have been selected by the staff selection committee and some of the petitioners SCA/2662/1984 18/52 JUDGMENT have been selected from the post of Junior Clerks to the post of Ward Officers because of their competence. It is also their contention that the zonal system was a system whereby each Zone was to continue to work as a separate entity itself by discharging all the functions of the Corporation. It was the policy of decentralisation and even if this policy were not to be approved by the Corporation, the work that the zonal Officers and Ward Officers were performing did not vanish or disappear. The work continued and the work has to be taken by the separate Departments. It is, therefore, contended that the action of the respondent was totally illegal, unjustified and inequitable. 14.In Special Civil Application No. 1593 of 1990, the grievance of the petitioners was that these petitioners and the petitioners of Special Civil Application No. 4483 of 1984 were similarly situated. As a matter of fact, the SCA/2662/1984 19/52 JUDGMENT petitioners have been performing the duties of Ward Officers to the satisfaction of all concerned. The petitioners have worked in the property tax department, valuation department, engineering department and also in octroi department. The salary and scale of pay of Assistant City Engineers was equivalent to the scale of Ward Officers and, therefore, there was no reason why the petitioners should be denied the benefit of being Ward Officers. Even others juniors to the petitioners have been absorbed as Ward Officers in 1989. The Standing Committee of the Corporation by Resolution dated 19.01.1988, once again opted for the establishment of zonal system. Provision was also made for appointment of Ward Officers. The Corporation has also created posts of Administrative Officers in the scale of Rs. 2200 – 4000. The petitioners earned their promotion in the engineering department in the scale of Rs. 2200 – 4000 and the petitioners SCA/2662/1984 20/52 JUDGMENT were in the equivalent scale of Administrative Officers. 15.The petitioners did not institute the Special Civil Application when they were reverted to the post of Assistant Engineer since the loss occasioned to them was minimum as against the petitioners of Special Civil Application No. 4483 of 1984. Since the Corporation has reverted to the earlier policy of having zonal system and was making appointments to the post of Ward Officers, it was just and proper that the case of the petitioners should also be considered for absorption to the said post and to grant them continuity benefit. 16.Mr. B.P. Tanna, learned Senior advocate appears on behalf of the respondent No. 1 – Corporation in all the three petitions. In Special Civil Application No. 2662 of 1984, an affidavit-in-reply is filed by the Deputy SCA/2662/1984 21/52 JUDGMENT Municipal Commissioner (Administration). Mr. Tanna has submitted that there were no permanent posts of Valuation Officers in the tax department and there have never been any such posts in the said department. He has, therefore, submitted that there was no question of any one being appointed on the post of Valuation Officer in the tax department. The contentions of the petitioners, therefore, in this behalf are entirely misconceived and ill- founded. The posts of Valuation Officers were for the first time envisaged and created in the Octroi department of the Corporation in the year 1967 – 68. Thereafter, several posts were created from time to time by way of adhoc arrangement in the octroi department and in no other department, much less in the tax department of the Corporation, such posts were created. A fresh assessment book was required to be prepared every four years under the Rules contained in Chapter VIII of Schedule to the SCA/2662/1984 22/52 JUDGMENT Bombay Provincial Municipal Corporation Act, 1959 and accordingly, quadrennial revision of assessment was undertaken for the purpose of fresh assessment book. For this purpose, the Corporation has been creating posts of Chief Valuation Officer and other Valuation Officers purely on a temporary basis. As and when the work was over, the posts being temporary, stood discontinued. Further, the staff has been drawn on each occasion from various departments of the Corporation to fill in these temporary posts in the tax department for the purpose of quadrennial revision and when the work was over, the staff went back to their respective parent department in the Corporation. Thus, there have never been any permanent posts of Valuation Officers and there was no cadre, either temporary or permanent, of Valuation Officers in the tax department and under the circumstances, there were no posts which were filled in or which were vacant in the tax SCA/2662/1984 23/52 JUDGMENT department. There was no question of considering the petitioners or others for being appointed or promoted or transferred to any such posts of Valuation Officers in the tax department. 17.Mr. Tanna has further submitted that the petitioners have mainly challenged in this petition the assignment of valuation work to the Ward Officers and what they call was absorption of ex-cadre Ward Officers, under the Assessor and Tax Collector for doing valuation and assessment work and denial of promotion to the petitioners to the posts of Valuation Officers in the pay scale of Rs. 650 – 1040. There were no posts of Valuation Officers in the tax department or under the Assessor and Tax Collector and, therefore, there was no question of absorbing Ward Officers or any one or more of them on any such post or posts. Hence, there could not be any question of SCA/2662/1984 24/52 JUDGMENT denial of promotion to the petitioners, as alleged or otherwise, much less, there could be any question of promotion to any higher post, as contended by the petitioners. In this view of the matter, there was no question of application of the award of the Industrial Tribunal in Reference (IT) No. 102 of 1973 referred to by the petitioners in this petition. He has further submitted that under Section 67 (3) of the Act, the entire executive power for the purpose of carrying out the provisions of the Act vests in the Commissioner who is empowered to prescribe the duties of and exercise, supervision and control over the acts and proceedings of all municipal Officers and servants. He has, therefore, submitted that the Municipal Commissioner was competent to prescribe duties to the Ward Officers by asking them to carry out the work of valuation or such other work of the Corporation as he thought necessary at any given point of time. Since it SCA/2662/1984 25/52 JUDGMENT was decided to reorganise the administrative zones in the Municipal Corporation and since it was decided to withdraw several functions which were being given to the Zonal Officers and since the said functions were given to the parent departments in the Corporation, duties of the Ward Officers were considerably reduced and, therefore, the Commissioner thought it fit and proper to allocate other duties to such Ward Officers. Mr. Tanna has further submitted that the petitioner Nos. 1,2 & 3 have already been promoted in an acting capacity in the pay scale of Rs. 650 – 1040. They could have no grievance in this behalf. As and when vacancy arose in the posts, carrying the pay scale of Rs. 650 – 1040 in the Corporation, the same would be filled in, in accordance with the policy of the Corporation and having regard to the award of the Industrial Tribunal. 18.An affidavit-in-reply was filed on behalf of SCA/2662/1984 26/52 JUDGMENT the respondent Nos. 2 & 3. Initially, Mr. S.B. Vakil, learned Senior advocate was appearing on behalf of respondent Nos. 2 & 3. However, subsequently he has withdrawn his appearance and on issuance of fresh notice, nobody appears on behalf of the respondent Nos. 2 & 3. In affidavit-in-reply, more or less same contentions were raised which were raised by the Corporation in its affidavit-in-reply. It was reiterated at more than one place that the posts of Valuation Officers on which the petitioners might have worked in the past were temporary posts created for carrying out the valuation work in respect of quadrennial year. There was no post of Valuation Officer, much less in the pay scale of Rs. 650 – 1040 and no Ward Officers was appointed to such posts. There was no denial of any promotion to the petitioners. Moreover, the petitioners could not challenge abolition of any posts on the ground that if such posts were not abolished, SCA/2662/1984 27/52 JUDGMENT the petitioners would have been entitled to claim promotion to such posts. No posts designated as Valuation Officers have been determined under Sub-section (1) of Section 51 or set forth in any statement under sub-Section (2) of Section 51 of the Act which exists