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Judgment
Ashutosh J. Shastri, J
Present petition under Article 226 of the Constitution of India is filed by the petitioner for challenging the legality and validity of the resolution
No.437 dated 27.3.2002 passed by Khambhalia Municipality as well as challenging the order dated 1.4.2002 passed by the respondent No.1.
The background of facts of the present petition is that the petitioner was discharging his lawful duty as Chief Officer at the relevant point of time in
Khambhalia Municipality and somehow, the authority wanted to oust the petitioner and wanted to prevent him from discharging his function as Chief
Officer. It is the case of the petitioner that in an earlier petition, which was filed by him, being Special Civil Application No.10330 of 1998, in which
there was an challenge to the circular issued by the Government to fill up the post of Chief Officer through retired person having age of above 60
years ignoring regular eligible departmental candidates available in the service. In the said petition, an interim relief was granted by the Court on
14.12.1998, whereby the authorities were restrained from obstructing the petitioner from discharging his regular duty as Chief Officer of the
Municipality, and the said interim relief was confirmed on 18.8.1999. It is the case of the petitioner that in spite of this position, the respondent
authorities in utter disregard to the grant of such interim protection wanted to disturb the petitioner on account of the pressure of local MLA since the
petitioner demolished several unauthorized constructions of the persons who were connected with some political force.
It is the further case of the petitioner that at the instance of the local MLA, a complaint was lodged before the Vigilance Department and
independent inquiry was also conducted in which the petitioner was exonerated. So much so that at the relevant point of time, not only the Municipality
exonerated the petitioner but even the Mamlatdar also did not find anything wrong but then somehow, at the behest of the political pressure, newly
elected body which took over the affairs of the Municipality in January 2002 passed a resolution for taking steps against the petitioner and in addition
thereto, the respondent No.1 was pleased to direct the Municipality to take action against the petitioner or face with dire consequences. As a result of
this, the petitioner was constrained to challenge both the actions; one by the resolution and another by the order of respondent No.1 dated 1.4.2002, by
invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
The petition, in substance, has raised multiple grounds but, in essence, has concentrated that it is only on account of the political pressure and only
on account of the fact that the petitioner demolished several constructions and antagonized the influential persons, which has resulted into the steps
against the petitioner.
This petition was originally entertained by the Court by issuing notice and thereafter was ordered to be heard with earlier petition, i.e. Special Civil
Application No.10330 of 1998. In between, a need arose for the petitioner to seek interim relief restraining the authorities from taking any disciplinary
action but then, after hearing at length, the Court was pleased to refuse the interim relief and Civil Application No.3272 of 2002 was dismissed. Since
the said order dated 6.5.2002 is relevant to the present controversy, the Court deems it proper to reproduce the same hereunder:-
“1. Heard the learned advocates Mr. H.C. Buch and Mr. B.P. Tanna.
This Application has been taken out by the respondent no.3, the President of Khambhaliya Municipality, for vacation of interim relief granted in the
main matter.
It appears that the petitioner was serving as Shop Inspector in the applicant Municipality. Under order dated 18th October,1996, the charge of the
post of Chief Officer was given to the petitioner. The appointment of the petitioner as In-charge Chief Officer of the Municipality was subject to the
rules that may be made with respect to the cadre of Chief Officer. However, the State Government, under its Circular dated 7th September, 1998,
directed that the vacant posts of Chief Officer be filled-in by appointment of retired Government servants for a period of one year. Feeling aggrieved,
the petitioner has preferred the above writ petition and has prayed for (a) quashing and setting aside the impugned contemplated action of reversing or
substituting the petitioner vide circular at Annexure P, as being bad in law,illegal, arbitrary, unconstitutional, suffers from non-application of mind; (b)
declaring that the petitioner is regularly appointed Chief Officer of the Municipality and that subject to the rules he has all the rights of Chief Officer;
and (c) restraining the respondents, its agents and servants and officers from constructing the petitioner in due discharge of his duties as regular Chief
Officer of Khambhaliya Municipality, pending the final disposal of this petition.
Pending this petition, this Court (Coram: N.N. Mathur, J.) on 14th December, 1998 made order as under:
“Inspite of notice none appears for respondent nos.1,2 and 4.
S.O. to 19th January, 1999. Interim relief in terms of Paragraph 20(C). D.S. Permitted.â€
It is now argued that on account of the above interim order, the petitioner Municipality is unable to take disciplinary action against the petitioner.
The above interim relief, therefore, be vacated.
I see no substance in the contention raised by Mr. Buch. The interim order made by the Court has to be read in context of the challenge in the
petition. The challenge in the petition is in respect of the apprehended removal of the petitioner from the post of the Chief Officer so as to appoint a
retired Government servant on temporary basis. Neither the main petition is preferred in respect of any disciplinary action, nor the interim relief
granted by this Court restrains the applicant Municipality from holding any disciplinary action against the petitioner. The interim relief granted by this
Court does not warrant such an interpretation. In my view, the Application is misconceived. Hence, rejected. The Registry is, however, directed to
post this petition for final hearing on 17th June,2002.â€
It appears from the record that thereafter on number of occasions, the matter got adjourned from time to time and then ultimately, the same was
ordered to be heard along with the earlier petition, referred to above, and the Court was constrained to pass an order on 24.9.2002, clarifying that
there shall be no interim relief. The said order dated 24.9.2002 is quoted hereunder:-
“RULE. To be heard with Special Civil Application No.10330 of 1998.
In view of the clarification already made by this Court in the order dated 6-5-2002 in Civil Application No. 3272 of 2002 that there is no interim relief
granted by this Court restraining the Municipality from holding any disciplinary action against the petitioner, there shall be no interim relief for the
present.â€
This petition with the aforesaid background of facts was pending for final disposal and came up for consideration before this Court with yet another
petition, i.e. Special Civil Application No. 10328 of 2011. Though the said petition is with respect to challenge to the order of removal dated 23.2.2011,
both these petitions were heard together but with distinct submissions.
Learned Senior Advocate Mr. Bhaskar Tanna appearing for the petitioner in this Special Civil Application No.4113 of 2002 has vehemently
contended that despite the fact that the earlier petition of 1998 was pending, in which protection was granted to the petitioner, still with malafide intent,
ignoring the said status of Special Civil Application, an attempt is made to recommend the action against the petitioner. It was submitted that the
earlier petition, i.e. Special Civil Application No.10330 of 1998, was filed for challenging the circular issued by the Government to appoint the person
who retired and has reached the age of more than 60 years in utter disregard to the claim of regular departmental candidates. The petitioner was
discharging his function as Chief Officer in Charge and who, on the contrary, was recommended to be appointed substantively to the post but with a
view to defeat, in a contemptuous manner, a resolution came to be passed on 27.3.2002 and therefore, this is nothing but a politically motivated action
against the petitioner. Mr. Tanna has further submitted that by way of an order dated 1.4.2002, the respondent No.1 authority has termed the initial
resolution passed by Khambhalia Municipality dated 20.7.2001, recommending closure of inquiry against the petitioner and on the contrary, if action is
not to be taken against the petitioner, the Municipality was threatened with dire consequences and there was a clear want of authority in issuing such
kind of instructions and thereto, at a much belated stage. According to Mr. Tanna, there was a delay of 8 months, which further led to a credence to
the allegation of malafide since the local MLA was after that. Mr. Tanna has further submitted that the order dated 1.4.2002 has a clear signal to the
fact that somehow, the petitioner is tried to be thrown out of the service and therefore the respondent No.1 has misused his power by passing such
kind of arbitrary and malafide order, which led the petitioner to knock the doors of this Court again. According to Mr. Tanna, the order dated 1.4.2002
is nothing but a clear example of passing an order against the public policy as well as against the purity of administration, inasmuch as since twice the
petitioner has been held not guilty of the charges which are said to have been committed, according to Mr. Tanna, even passing of resolution dated
27.3.2002 and simultaneous order dated 1.4.2002 are part of the larger conspiracy against the petitioner to whom the interim relief was granted in
earlier proceedings and therefore, the reliefs, which are prayed for, deserve to be granted in the interest of justice. Mr. Tanna has further submitted
that efficiency of the petitioner was established from the fact that though he was a Shop Inspector, was given a charge of the Chief Officer and being
a Chief Officer, he has proved his efficiency and therefore, no public servant, like the petitioner, be allowed to be victimized at the behest of some
local political force and therefore, by submitting the aforesaid contention, a request is made to grant the reliefs as prayed for in the petition. No other
submissions have been made in the present petition.
As against this, Learned Assistant Government Pleader Mr. Bhargav Pandya appearing for the State authority and learned advocate appearing for
Nanavaty Advocates for respondent No.5 have vehemently opposed the stand of the petitioner and have conjointly submitted that there is no merit in
the petition. The President of the Municipality, who filed affidavit in reply from page 119, has vehemently asserted that there is a gross suppression of
material fact and on this ground alone, the petition deserves to be dismissed. The said contention of suppression of material fact has been pinpointed
specifically in Para 5 of the affidavit-in- reply which reads as under:-
“5. I say and submit that the petition is also required to be dismissed on the ground of suppression of material facts as the petitioner has
conveniently not disclosed the fact that the resolution No.340 dated 20.6.2001 (Page 28) basing upon the letter dated 18.4.2001 issued by the then
President of the respondent No.3 Municipality Nirmalaben (Page 23) has been quashed and set aside by the Collector, Jamnagar in exercise of
powers under Section 258(1) of the Gujarat Municipalities Act, 1963 vide order dated 23.11.2001 wherein the aforesaid resolution along with 37 such
resolutions passed by the respondent no.3 Municipality in the meeting dated 20.7.2001 has been quashed and set aside. A copy of the said order issued
by the Collector, Jamnagar is annexed hereto and marked as Annexure I to the present affidavit in reply.
It is pertinent to note that the Director of Municipalities way back on 16.3.2001 asked the President of the respondent no.3 Municipality to initiate
departmental proceedings against the petitioner on the basis of the report of the State Vigilance Commission. A copy of the said letter dated 16.3.2001
is annexed hereto and marked as Annexure II to the present affidavit in reply. It is further submitted that despite of such a direction, the then
President of the Municipality, in collusion with the petitioner, wrote a letter dated 18.4.2001 for not initiating any proceedings against the petitioner.
The said letter was accepted by the Municipality and resolution no.340 came to be passed on 20.7.2001. However, the said resolution has been
quashed by the Collector, Jamnagar as aforesaid. Under the circumstances, the directions given by the Director of Municipalities on 16.3.2001 to
initiate proceedings on the report made by the State Vigilance Commission still continues and those charges are still in existence as no departmental
proceedings are initiated against the petitioner on those charges and the supporting stand taken by the then President of respondent no.3 Municipality
and Resolution No.340 passed at her behest has been quashed and set aside. However, all the facts are not mentioned and mainly the fact regarding
the passing of the order dated 20.11.2001 by the Collector, Jamnagar. Hence, solely on this ground of suppression of material facts, the present
petition is required to be dismissed as the petitioner has tried to mislead this Honourable Court by placing heavy reliance on the letter dated 18.4.2001
and the resolution dated 20.7.2001 which has been quashed by the Collector under Section 258 of the Gujarat Municipalities Act, 1963.â€
Additionally, it was also submitted by the contesting respondents that on the contrary, the petitioner is irregularly appointed as Chief Officer of the
Municipality and somehow, wanted to continue himself to the post and this assignment of the petitioner has created lot many administrative
complications in smooth functioning of the Municipality. It has further been pointed out by learned advocates for the contesting respondents that the
petition upon which, a reliance is placed, is a petition which was disposed of long back at the time when the petition was heard and further, there is no
vested right in the petitioner to continue to stick to the Court. On the contrary, on account of his misdeeds, even departmental inquiry was required to
be conducted, to which also the petitioner wanted to obstruct and therefore, filed the Civil Application, which was already dismissed with a
clarification that there is no restraint in conducting the departmental inquiry.
It has further been pointed out that after conducting full- fledged departmental inquiry, even a substantive order of removal came to be passed,
which is challenged in a subsequent petition, i.e. Special Civil Application No.10328 of 2011, and therefore, the present petition does not require any
interference. On the contrary, by subsequent events and by passing a subsequent order of removal, this petition has become infructuous and
accordingly the same be dismissed. Learned advocates for the contesting respondents have submitted that an atmosphere of prejudice is tried to be
created by asserting a political pressure from the local MLA but the same has no much substance since the petitioner is faced with serious charges,
large in numbers. It was submitted that an attempt was made at the relevant point of time to sum up the inquiry by just favouring the petitioner and till
the order of removal is passed, serious attempts were made by the petitioner to see that even the departmental inquiry cannot be proceeded with. But,
be that as it may, this petition has now no legs to stand in view of the gradual development of the circumstance.
A further submission has been made to the effect that detailed affidavit-in-reply, which has been filed, is sufficient enough to indicate the ill-efforts
which are made by the petitioner to take undue advantage and retain the position of the Chief Officer. Much emphasis has been made by learned
counsel for the respondents on the assertion made in the affidavit-in-reply filed in detail. A further submission has been made that the petition, which
was relied upon of 1998, was a petition no longer survived at the relevant point of time and therefore also, there is hardly any point available with the
petitioner to ventilate the grievance. All these allegations, which are leveled, have been gone in detail and the substantive order of removal came to be
passed and therefore, this petition does not call for any interference. A reference is made to the disposal of the said petition of 1998 and thereby it has
been contended that the present petition is merit-less, the same does not deserve to be entertained any more.
Having heard learned advocates appearing for the parties and having gone through the material on record of this petition of 2002, if independently
to be examined, it would make it clear that to some extent, there appears to be some substance in the stand taken by the respondent authority. It
appears from the challenge to the order dated 1.4.2002 and the impugned resolution in substance, that an attempt was made to divert the attention
from the view point of political pressure. For the time being, even if same to be given some significance, then also, in view of the affidavit-in-reply filed
in detail by the President of the respondent No.3 Municipality, affirmed on 1.7.2002, it appears to this Court that some important issues which are
highlighted in this affidavit appear to have not been properly presented in the petition. It might be that this petition was heard with another petition of
2011, but then, the pleadings which are mentioned in the present petition of the 2002 are not sufficient enough to justify the stand of the petitioner. The
grievance raised by the authority against the petitioner about non-disclosure of the material fact and subsequent event has clearly indicated that the
resolution which was originally tried to be taken in aid was already recalled rather set aside by the Collector in exercise of the power under Section
258 of the Gujarat Municipalities Act and the petition which has been brought on, in pleading, is not disclosing any such events. From the record,
independently available against this assertion of 1.7.2002 by the respondent No.3 Municipality, there is no counter filed by the petitioner nor any
attempt is made to even explain or justify such allegation of non-disclosure and therefore, in such a situation, the Court would not like to exercise its
extraordinary equitable jurisdiction.
The Court is also of the opinion that howsoever may be a gross fact, but that would not absolve the petitioner from any manner either to explain or
clarify or disclose the facts which are encircled to the controversy in the petition. In addition to para 5 of the said affidavit-in-reply, even other
assertions which are contained in para 2, 3 and 4 are also worth enough to be considered and as such, the Court would like to reproduce some of the
relevant paragraphs of the said affidavit:-
“2. At the outset, I say and submit that the present petition is premature as no cause of action has arisen in favour of the petitioner till date and the
petitioner has approached this Honourable Court by way of filing the present petition only with a view to see that no further steps of initiating any
departmental inquiry are taken against the petitioner. I say and submit that no order initiating departmental inquiry has yet been issued to either by the
respondent no.3 Municipality or by the State Government. Therefore, it can hardly be said that the departmental inquiry is even under contemplation.
Hence, as no cause of action has arisen, the present petition is required to be dismissed as premature.
I say and submit that the petitioner has prayer for to quash and set aside the resolution no.437 dated 27.3.2002 (Page 108 of the petition) which
interlia empowers the President of respondent no.3 Municipality to process and to take an initiative for early hearing of SCA No.10330 of 1998 and/or
vacation of the interim relief granted by this Honourable Court in the said petition as the petitioner is an irregularly appointed Chief Officer of the
respondent no.3 Municipality and is creating lot of administrative difficulties in smooth functioning of the respondent no.3 Municipality. It is further
submitted that the petitioner has also prayed for to quash and set aside the order dated 1.4.2002 by the respondent no.1 herein (Page 117). However, I
beg to point out that the said annexure is not an order and it is a mere letter issued by the Director of Municipalities to the President of respondent
no.3 Municipality asking the President of respondent no.3 Municipality to initiate the proceedings against the irregularities committed by the petitioner.
Therefore, it cannot be said to be an order and the said fact is fortified by looking to the content of the said letter. Hence, the main prayer in the
petition itself is misconceived and therefore,the petition is required to be dismissed in limine.
I say and submit that the petitioner has further prayed to declare the aforesaid resolution as well as the order (which is infact a letter) as being
illegal, arbitrary and malafide. However, the said prayer is also misconceived and as the respondent no.3 Municipality is free to initiate any
proceedings for vacation of interim relief granted by this Honourable Court in SCA No.10330 of 1998 and for pressing for early hearing of the said
petition. I further submit that the respondent no.3 Municipality as well as the other respondent authorities of the State Government are free to initiate
departmental proceedings against the petitioner as there is a prima facie material against the petitioner. Therefore, there is no question of the
resolution as well as the order (infact a letter) being illegal, arbitrary and malafide as no discrimination is meted out and the Authorities are within their
power to issue the same. Under the circumstances, on this ground also as the prayer is misconceived, the present petition is required to be dismissed in
limine.
I say and submit that the petitioner also places heavy reliance on the report dated 8.11.2001 given by the Mamlatdar, Khambaliya to the Collector,
Jamnagar in which it is stated that no inquiry is required to be initiated against the petitioner. However, it is pertinent to note that heavy reliance has
been placed by the Mamlatdar, Khambaliya on the aforesaid letter of the then President as well as Resolution No.340 of the respondent no.3
Municipality while coming to the said conclusion. However, subsequently, the Collector has quashed the said resolution. Therefore, the report of the
Mamlatdar, Khambhaliya cannot be placed into service and hence, solely on this ground, the petition is required to be dismissed in limine.
I say and submit that pursuant to the letter dated 1.4.2001 issued by the Director of Municipalities, a surprise inspection was carried out by the
Regional Director of Municipalities, Rajkot on 6.4.2002 and 10.4.2002 in which several irregularities committed by the petitioner have been transpired.
Therefore, by placing reliance on several reports of the Director of Municipalities, Deputy Secretary, Urban Development Department and especially,
the report of the Collector, Jamnagar and Deputy Collector, Khambaliya, the Regional Director of Municipalities, Rajkot asked the President of the
respondent no.3 Municipality to initiate departmental proceedings against the petitioner on as many as 21 grounds in which the petitioner has prima
facie committed irregularities. A copy of the said letter dated 22.4.2002 is annexed hereto and marked as Annexure III to the present affidavit in
reply.
Therefore, it is pertinent to note that after the report of the Mamlatdar, Khambaliya on which heavy reliance is being placed by the petitioner, all the
superior authorities to the Mamlatdar have given their report against the petitioner and on surprise inspection also, it appears that the petitioner has
prima facie committed several irregularities as Chief Officer of the respondent no.3 Municipality. Hence, in view of the said letter dated 22.4.2002, it
is abundantly clear that the report of the Mamlatdar, Khambhaliya has hardly any relevance as none of his superior Authorities have accepted the said
report and therefore, even the charges mentioned in the report of the State Vigilance Commission still continues. Under the circumstances, the
departmental inquiry is required to be initiated against the petitioner on several grounds. However, only with a view to stall the proceedings, the
petitioner has approached this Honourable Court at a premature stage by suppressing material facts and hence, the petition is required to be dismissed
in limine solely on this ground.
I say and submit that in view of the aforesaid facts and circumstances, this Honourable Court may not grant any relief in favour of the petitioner as
the petitioner has not approached this Honourable Court with clean hands and at a proper stage when the departmental inquiry is yet in contemplation
and has not been initiated. The Honourable Court may not grant any relief to the petitioner so as to limit the scope of proposed inquiry which might be
initiated against the petitioner as nothing has been prayed by the petitioner in that regard. under the circumstances, the petition is required to be
dismissed as no cause of action has yet arisen in favour of the petitioner and hence, solely on this ground, the petition deserves to be dismissed in
limine.
I further submit that the respondent no.3 Municipality had filed an application for vacating interim relief granted in favour of the petitioner in SCA
No.10330 of 1998 being Civil Application No.3272 of 2002. This Honourable Court (Coram: Ms. R.M. Doshit, J.) vide order dated 6.5.2002 dismissed
he said application. However, it is clarified that the Municipality can hold any disciplinary action against the petitioner. A copy of the said order is
annexed hereto and marked as Annexure IV to the present affidavit in reply.
However, the present petition is filed only with a view to see that no inquiry is initiated against the petitioner and this Honourable Court may not grant
any relief to the petitioner and the petition is required to be dismissed in limine.â€
From the aforesaid situation, which is prevailing on record, and the background of the facts pointed out before the Court, the Court is of the opinion
that the pleadings are very much lacking on behalf of the petitioner. Even these allegations and averments have remained uncontroverted since on the
record of this petition, there is no counter filed by the petitioner though the affidavit was already long back served to the petitioner, i.e. way back on
21.7.2002. The endorsement is clearly visible from page 119 and as such, when this being the situation, looking to the significance of the proper
pleadings, this Court is not inclined to exercise its extraordinary equitable jurisdiction and as such, without much dwelling upon it, the Court is of the
opinion that in the peculiar background of facts, this petition is devoid of merit, the same is not entertainable.
So far as the contention with regard to the order which has been passed by the respondent No.1 is concerned, the Court is of the opinion that the
said order is passed in due discharge of its statutory performance and in exercise of the duty and as such, not possible to be construed as erroneous or
lack of authority in any form. This petition is also not entertained in view of the fact that the earlier petition of 1998 has already been disposed of and
the substantive submission about political pressure is of no avail to the petitioner, particularly when serious charges, large in numbers, have been
leveled against the petitioner. In addition thereto, so far as purity of administration and public policy issues are concerned, which have been raised,
they are not available to the petitioner, more particularly when the respondent No.1 in due discharge of its statutory function has passed the order.
Further, earlier summing up of inquiry attempted in favour of the petitioner has been dealt with by the Collector at the relevant point of time, which is
clarified in the affidavit-in-reply. This Court would not like to give much importance to these issues, particularly when the order of removal is assailed
in further petition of 2011, as stated above. Though an attempt is made to interlink these issues with the substantive challenge of removal order, this
Court is of the clear opinion that this petition of 2002 is not entertainable in view of the aforesaid peculiar background of facts and the Court would not
like to exercise its extraordinary jurisdiction. Hence, the petition, being devoid of merits, suffers from aforesaid infirmities, stands dismissed with no
order as to costs. Rule is discharged. Interim relief, if any, stands vacated forthwith.