IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4963 of 2002 For Approval and Signature: HON'BLE MR.JUSTICE AKIL KURESHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- JAYANTILAL MAKWANA TRANSPORT MANAGER Versus AHMEDABAD MUNICIPAL CORPO. -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 4963 of 2002 MR MUKUL SINHA for Petitioner No. 1 MR S.N.SHELAT, SR. COUNSEL with MR MG NAGARKAR for Respondent No. 1 MR ND GOHIL, ASSTT.GOVERNMENT PLEADER for Respondent No. 2 MR MAYUR PANDYA, SR. COUNSEL for Respondent No. 3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE AKIL KURESHI Date of decision: 20/10/2004 ORAL JUDGEMENT In this petition, the petitioner has prayed that the order dated 27.4.2002, appointing respondent No.3 to the post of Deputy Municipal Corporation, be declared illegal, discriminatory, arbitrary and in violation of Article 14 of the Constitution of India. The petitioner has therefore, prayed for quashing of the said order dated 27.4.2002. The petitioner has also prayed for a direction to the respondent No.1 for considering his case for appointment to the post of Deputy Municipal Commissioner with effect from 27.4.2002 and for grant of all consequential benefits. 2. The factual background as emerging from the pleadings on record leading to the present petition can be noted at this stage. 2.1 In the petition, the petitioner has stated and about which there is no serious dispute that he was appointed as Salvage Attendant in the respondent No.1 Ahmedabad Municipal Corporation (hereinafter referred to as "the respondent No.1 Corporation" for short) on 1.6.1977. The petitioner was thereafter posted as Transport Inspector, which also like the post of Salvage Attendant, was a Class-III post; on 14.8.1980. The petitioner was thereafter promoted to the Class-II post of Ward Officer and later on as Solid Waste Superintendent from 1.12.1981 to 15.1.1990. The petitioner was thereafter, promoted to the post of Deputy Octroi Superintendent, a Class-I cadre on 16.1.1990 and had worked on various posts in Class-I Cadre upto 29.12.2000. The petitioner had held the post of Director, Solid Waste Management in the pay-scale of Rs. 12,000 16,500. The petitioner was thereafter appointed to the post of Director, Solid Waste Management and Conservancy Services in the pay-scale of Rs. 14,300 18,300 with effect from 30.12.2000, which is the post of Head of Department. It is further stated that with effect from 11.10.2001, the petitioner has been posted as Transport Manager of the Ahmedabad Municipal Transport Services, in the pay-scale of Rs. 14,300 - 20,050. 2.2 Regarding the educational qualifications of the petitioner also there is no dispute between the parties. The petitioner holds the degree of Bachelor of Arts and Bachelor of Law. 2.3 There is also no dispute about the fact that the petitioner did not have Second Class in the Degree of Bachelor of Arts, nor did he get Second Class while passing the LL.B (General) examination. It is also not in dispute that however, the petitioner passed LL.B (Special) Examination in which he secured Second Class. 2.4 Regarding respondent No.3, whose appointment to the post of Deputy Municipal Commissioner is under challenge, the petitioner has contended that the respondent No.3 had joined the respondent No.1 Corporation as Slaughter House Superintendent in the Health Department with effect from 11.5.1989. The said post is in the pay-scale of Rs. 8,000 - 13,500. It is stated that after having worked on the said post till 30.12.2000, the respondent No.3 was promoted to the post of Assistant Municipal Commissioner, Class-I post, in the pay-scale of Rs. 12,000 - 16,500. 2.5 Regarding the educational qualifications and experience of the respondent No.3 the petitioner has stated that the respondent No.3 holds the degree of Bachelor of Veterinary Science and Animal Husbandry. It is also stated that the respondent No.3 does not possess the requisite experience and qualifications prescribed under the Rules for holding the post of Deputy Municipal Commissioner. 2.6 It is also the case of the petitioner that the respondent No.3 was promoted to the post of Deputy Municipal Commissioner with effect from 27.4.2002 in the pay-scale of Rs. 14,300 - 20,050, overlooking the claim of the petitioner who is senior to the respondent No.3 in Class-I cadre. The petitioner has stated that the respondent No.3 did not even possess the requisite experience required for the post in question. 3. The petitioner has challenged the appointment of the respondent No.3 to the post of Deputy Municipal Commissioner, on various grounds including the ground that the procedure followed by the respondent No.1 before appointing the respondent No.3 to the said post was illegal and not in conformity with the provisions of the Bombay Provincial Municipal Corporation Act (hereinafter referred to as "the said Act"). The petitioner, as noted above, has also questioned the eligibility of the respondent No.3 for being considered for appointment to the said post. 4. The respondent No.1 in its affidavit-in-reply dated 11.7.2002 has stated inter-alia that the Recruitment Rules for the post of Deputy Municipal Commissioner require a Second Class Degree in Arts, Science, Commerce or Law and a minimum of 10 years administrative experience. It is stated that Foreign Degree or Post Graduation is considered as an additional qualification. 4.1 It is stated that the appointment to the post of Deputy Municipal Commissioner is to be made under Section 45 of the said Act and the same is governed by the Rules in Chapter 3 to Appendix 4 of the said Act. It is further stated that under Rule 2 of Chapter 3 of Appendix 4 of the said Act, before making appointment to a post, applications are to be invited by advertisement in local Newspapers and such applications are to be scrutinised by the Commissioner who is required to submit to the Corporation a list arranged in order of preference of such persons out of those who have applied as he considers qualified for the post in question. It is further stated that the proviso to Rule 2 enables the Corporation to make appointment to the post, if the Corporation is of the opinion that any officer in Municipal service possessing the qualification prescribed under Rule 3 is a fit person to be appointed to the post without following the procedure prescribed in the said Rule. 4.2 It is stated that by Resolution dated 22.1.1999, the Corporation has appointed a Special Committee under Section 30 of the said Act, known as "Staff Selection and Appointment Committee" consisting of the following Members:- 1. Mayor 2. Deputy Mayor 3. Chairman, Standing Committee 4. Leader of Municipal, Bharatiya Janta Party 5. Leader of Municipal, Congress Party. It is also stated that finality is attached to the appointment made by the said Committee if it is backed by minimum half of the Members of the Committee. 4.3 It is further stated that Departmental Promotion Committee ( "DPC" for short) consists of Municipal Commissioner and two Deputy Municipal Commissioners. 4.4 It is further stated that consequent upon Shri Dixit who was holding the post of Deputy Municipal Commissioner seeking retirement with effect from 27.4.2002, a meeting of the DPC was convened on 27.4.2002 and the Committee considered the following three officers for making recommendation under the proviso to Rule 2 to Chapter 3:- 1. Shri P.K. Makwana 2. Shri Jayantilal S. Makwana 3. Capt. Dilipkumar J. Mahajan 4.5 It is stated that Shri P.K. Makwana was not found suitable for the post in question. It is stated that the representation of the petitioner was also considered by the Committee, but the Committee was of the opinion that the petitioner did not possess the eligibility qualification for consideration for the post of Deputy Municipal Commissioner. It is stated that according to the Rules, for the appointment to the post in question, a minimum Second Class Degree in Arts, Science, Commerce or Law is required and the Committee was of the opinion that the petitioner did not have the basic degree in Arts in Second Class, nor did the petitioner have the Degree in law in Second Class. It is stated that the petitioner passed LL.B Examination in compartments and though the petitioner subsequently had passed the LL.B (Special) Examination in Second Class, the Committee was of the opinion that what was required under the Rules was a Second Class Degree in Arts, Science, Commerce or Law and the petitioner acquiring a Second Class degree in Special law would not make him eligible for consideration. It is stated that the degree in Special law is required for joining the professional course. Basic degree in law does not entitle a person for being admitted as an Advocate to practice law unless he completes the Third Year of LL.B Examination. It is further stated that the students desiring to undertake Post Graduate study in law need not have a degree in special law and the Degree of Bachelor of law (General) would be sufficient. It is further stated that for the purpose of employment, what was required was a Degree of Bachelor of Law and passing of the Special Law Degree was not requisite qualification. It is therefore suggested that passing of the Special Law in Second Class would not substitute for passing of LL.B Examination in Second Class, which admittedly the petitioner had not done. The Committee therefore, found the petitioner ineligible for being considered for appointment to the post in question. It is stated that on the other hand the respondent No.3 was found fit by the Committee to carry out the responsibilities. 4.6 It is stated that the recommendations of the Committee were placed before the Special Committee (i.e. Staff Selection and Appointment Committee) consisting of five members and the said Committee, in its meeting held on 29th April, 2004, unanimously accepted the recommendation of the Departmental Promotion Committee. The Staff Selection and Appointment Committee was apprised of the representation of the petitioner and his claim that he was eligible for consideration, however, the Committee resolved to offer appointment to the respondent No.3 to the post of Deputy Municipal Commissioner. 4.7 With respect to the qualifications of respondent No.3, it is stated that he was commissioned in Indian Army as a Second Lieutenant and thereafter, appointed as a Captain. He is a Graduate from Bombay Veterinary College and possesses a Degree of Bachelor of Veterinary Science. He has attended the management course at Indian Institute of Management at Ahmedabad in the year 1988-89 and has passed a Local Self-Government Diploma in the year 1994 and he is working with the Corporation since October, 1989. He is found to be an outstanding officer, who has proved his worth in his career with the Corporation. He has assisted the Corporation in all important and emergency matters and has more than 10 years of administrative experience. 5. The averments made by the petitioner in his affidavit-in-rejoinder and those made by the respondent No.1 in the affidavit-in-sur-rejoinder need not be recorded in detail at this stage and reference would be made to such of the averments as would be necessary in the later part of this judgement. 6. One may however, note that by an affidavit dated 23rd October, 2002, one Shri Bhanubhai P. Chauhan, Secretary to the Special Committee of the respondent No.1 Corporation has stated that he is the Secretary to the Municipal Corporation and is therefore, convening the meetings of the Staff Selection and Appointment Committee. He has stated that the Committee had unanimously accepted the recommendation for appointment of the respondent No.3 to the post of Deputy Municipal Commissioner. He has further stated that the members of the Committee also had discussion with respect to eligibility of the petitioner for being appointed to the post of Deputy Municipal Commissioner. 7. On the basis of these factual averments, the petitioner has contended that the appointment of the respondent No.3 to the post of Deputy Municipal Commissioner was illegal and unlawful. Learned Counsel Shri Mukul Sinha appearing for the petitioner has submitted that Staff Selection and Appointment Committee did not have the power to consider the question of appointment to the post of Deputy Municipal Commissioner. He submits that the Committee that could have validly examined the said question was one envisaged under Section 54 of the said Act. 7.1 The Counsel has further submitted that the so-called Departmental Promotion Committee also did not have the authority to examine the eligibility of the officers in question and to make recommendations with respect to the fitness of such officers for being appointed to the post in question. He submits that the said Act or the Rules framed thereunder do not envisage creation of any such Committee. 7.2 With respect to the qualifications of the petitioner, the Counsel submits that there is no dispute about the fact that the petitioner did pass LL.B (Special) with a Second Class. He submits that there is no distinction under the Rules that the Degree in Law would mean only the Degree of LL.B (General) and would not include the Degree of LL.B (Special). He therefore submits that the fact that the petitioner did not have LL.B Second Class in General would not render him ineligible for being considered for appointment to the post in question, since admittedly the petitioner did possess the Degree of LL.B (Special) with Second Class. 7.3 With respect to the qualifications of the respondent No.3, it is suggested that the respondent No.3 did not have a Degree in Science as required under the Rule and a Graduate Degree in Veterinary Science and Animal Husbandry cannot be equated with the requisite qualification of Degree in Science. In support of this contention, the learned Counsel has placed reliance on the decision of a learned Single Judge of this High Court dated 29.11.1983, rendered in Special Civil Application No. 3328 of 1983, where the Court has come to the conclusion that the requirement that a candidate must have a Second Class Degree in Arts, Law, Science or Commerce from a recognized University would not stand fulfilled if the candidate had passed M.B.B.S Examination and therefore had a Degree in Medicine and Surgery. The Court concluded that the Degree in medicine cannot be equated with the Degree in science. 7.4 The Counsel for the petitioner has also submitted that the respondent No.3 did not have ten years of Administrative experience as required under the Rules. It is suggested that the respondent No.3 had less than 8 years of Administrative experience and his earlier experience as a Superintendent of the Slaughter House cannot be considered as Administrative experience. He has also submitted that the respondent No.3 was holding the Class-I post only for about 2 years before his consideration for the post of Deputy Municipal Commissioner and therefore, any experience prior to the said period cannot be taken into account for examining his eligibility. 7.5 The Counsel for the petitioner has also urged that the action of the respondent No.1 in declaring the petitioner as ineligible and considering the respondent No.3 to the post in question when he was not so eligible suggests that the action of the respondent No.1 was actuated by malafides and the selection of the respondent No.3 was pre-decided and pre-judged. 8. Appearing for the respondent No.1, Shri. S.N. Shelat, learned Senior Counsel has contended that the respondent No.1 has followed the requirements under the Act and after following the detailed procedure in conformity with the Act and the Rules, made appointment of respondent No.3 to the said post. He has contended that the Staff Selection and Appointment Committee is created by the Corporation in exercise of powers under Section 30 of the said Act and such a Committee enjoys the power of making appointments, if the decision of the Committee is taken by the majority of the members. He has submitted that the Committee had taken into consideration the recommendations of the Departmental Promotion Committee and had concurred with the recommendations. He has submitted that the Departmental Promotion Committee as well as the Staff Selection and Appointment Committee found that the petitioner was not possessing educational qualifications required for the post in question. He has submitted that the fact that the petitioner possesses the Degree of LL.B (Special) with Second Class would not fulfil the requisite educational qualifications since what was required was a Second Class Degree in Law and the said requirement can be said to be fulfilled only if the candidate possessed a Degree in Law (General) with Second Class. He has submitted that LL.B (General) Degree is what is needed for pursuing Post Graduate studies in Law as well as for appointments to the different public services. He therefore submitted that the decision of the Staff Selection and Appointment Committee, which upon consideration found the petitioner ineligible for the post in question, is just and proper. 8.1 With respect to the qualifications of the respondent 3, Shri S.N. Shelat, Senior Counsel submitted that the Committee had considered the eligibility of the respondent No.3. It was found that he did possess the Degree in Science and the fact that such a Degree is in the Science of Veterinary and Animal Husbandry would not render the qualification of the respondent No.3 insufficient, so far as the post in question is concerned. It is urged that the Degree in Science as required under the Rules in question would include Degree in all kinds of Science and it is not possible to exclude the Degree in Veterinary and Animal Husbandry from the purview of the requisite qualifications. 8.2 With respect to the administrative experience also, it is stated that the respondent No.3 was found to be possessing the experience required and that he had more than 10 years of administrative experience and was therefore, eligible for being considered for the post in question. 8.3 The learned Senior Counsel for the respondent No.1 has submitted that the decision of the Staff Selection and Appointment Committee, after following the procedure required under the law, would not be open to judicial review unless it is found that the decision was arbitrary or capricious. 8.4 With respect to the allegations of malafides, it is submitted that the contentions are not born out from the material on record. 9. Learned Senior Counsel Shri Mayur Pandya, appearing for the respondent No.3 has adopted the arguments of the learned Senior Counsel for the respondent No.1 and has further contended that the petitioner was correctly kept out of the consideration, since he did not fulfil the necessary qualifications required under the Rules. He has submitted that the petitioner has failed to demonstrate that the respondent No.3 did not possess requisite educational qualification or experience. 10. Learned Assistant Government Pleader Mr. N.D. Gohil for the respondent No.2 supported the arguments advanced by the learned Senior Counsel for the respondents No.1. 11. In the light of the material on record and the submissions made before the Court, following three main questions are required to be examined and answered:- (A) Whether the respondent No.1 followed the procedure as laid down under the law before making the appointment of respondent No.3? (B) Whether the petitioner possessed the requisite qualifications for the appointment to the post of Deputy Municipal Commissioner? (C) Whether the respondent No.3 fulfilled the necessary qualifications for being appointed to the post in question? 12. With respect to the first question, this Court may examine the question of formation of the Staff Selection and Appointment Committee. Section 30 of the said Act pertains to the Special Committees of the Corporation. Sub-section (1) of Section 30 provides that the Corporation may, from time to time, appoint Special Committees, which shall conform to any instructions that the Corporation may give them. Sub-section (2) of Section 30 provides that the Corporation may define the sphere of business of each Special Committee by specific Resolution passed by not less than 2/3rd of the Councillors present and voting and also permits the Corporation by like Resolution to delegate any of its powers and duties to specified Special Committees. Sub-section (2) of Section 30 reads as follows:- "30. Special Committees of the Corporation (1) xxx xxx (2) The Corporation may by specific resolution passed by the vote of not less than two-thirds of the councillors present and voting at a meeting of the Corporation define the sphere of business of each Special Committee and direct that all matters and questions included in any such sphere shall in the first instance be placed before the appropriate Committee and shall be submitted to the Corporation with such Committee's recommendation; and the Corporation may also by a like resolution delegate any of its powers and duties to specified Special Committees." 12.1 Sub-section (6) of Section 30 of the said Act provides that all the proceedings of every Special Committee shall be subject to confirmation by the Corporation. By proviso to said sub-section (6) of Section 30, it is however, provided that if while delegating any of its powers or duties to Special Committee under sub-section (2) of Section 30, the Corporation directs that the decision of such Committee shall be final, then so much of the proceedings of such Committee shall not be subject to confirmation by the Corporation, if such decision is supported by atleast half the total number of members of such Committee. Sub-section (6) of Section 30 reads as follows:- "Sec. 30 - Special Committees of the Corporation. (1) xxx (2) xxx (3) xxx (4) xxx (5) xxx (6) All the proceedings of every Special Committee shall be subject to confirmation by the Corporation. Provided that if, in delegating any of its powers or duties to a Special Committee under sub-section (2), the Corporation directs that the decision of such Committee shall be final, then so much of the proceedings of such Committee as relates to such powers or duties shall not be subject to confirmation by the Corporation, if such decision is supported by at least half the total number of members of such Committee. Provided further that any Special Committee may by a resolution supported by atleast half the whole number of members direct that action be taken in accordance with the decision of such Committee without waiting for confirmation of its proceedings by the Corporation, where such confirmation is required, if such Committee considers that serious inconvenience would result from delay in taking such action' but if the Corporation does not subsequently confirm the proceedings of such Committee, such steps as may still be practicable shall be taken without delay to carry out the orders of the Corporation." 12.2 It can thus be seen that it is within the power of the Corporation by passing necessary resolution in this regard to constitute Special Committees and to delegate any of its powers and duties to such Committees. It may also be noted that though generally proceedings of such Committees are subject to the confirmation by the Corporation, however if the Resolution by which such delegation of powers and duties are vested in the Committees directs that the decision of the Committee shall be final, to that extent the proceedings of the Committee would not be subject to the confirmation of the Corporation, if the decision is taken by at least half the total number of members of the Committee. 12.3 It is stated by the respondent No.1 in its affidavit-in-reply and pointed out by the learned Senior Counsel Shri Shelat in his submissions that in exercise of powers under Section 30 of the said Act, by a Resolution dated 22.1.1999, the Corporation has constituted the Committee called "Staff Selection and Appointment Committee". The said Resolution also specifies the sphere of business that may