Smt Anita Gurjar @APPELLANT@Hash State of Rajasthan & Ors

Heard on the application no.17420/2018 for vacation of the stay order passed by this Court dated 13-9-2017.

After hearing counsel for the parties, the stay order dated 13-9-2017 was passed by this Court which reads as under :-

“The matter comes up on applications (54211/13-9-17 by Sulochana Sharma) (54183/13-917 by Deepika Sharma) and 54184/13-9-17 by Ashapuri

Goswami) for impleadment in a petition wherein the petitioner, Chairman of the Municipal Board Chaksu (hereinafter `the Board') has challenged her

suspension by the State Government in the department of Local Self Government vide order dated 7-9-2017 by resort to Section 39(6) of the

Rajasthan Municipalities Act, 2009 (hereinafter `the Act of 2009').

In the petition where the State Government through the Director Local Self Government whose order is impugned is represented through Mr. S.K.

Gupta, AAG, it cannot be presumed that the defence of the impugned order will not be set up with full vigour. Besides the applicants cannot

conceivably defend or required to defend the State Government's impugned order. Further the petitioner claims no manner of relief against them. They

appear to be before this court not so much for vindication of justice but to agitate their own interest/ agenda. That cannot be permitted. Consequently,

the applicants are neither necessary nor property in the petition. The applications filed by them for impleadment in the petition are dismissed.

However, as a matter of practice, the applicants are allowed to intervene in the matter. More so as intervention is not seriously opposed by counsel for

the petitioner.

Mr. S.K. Gupta AAG appearing for respondents submits that following the suspension of the petitioner from the post of Chairman of the MUnicipal

Board Chaksu vide order dated 7-9-2017, the Vice Chairman Sulochana Sharma has been handed over the charge of the said post vide order dated

11-9-2017. And she had taken over the charge of the post vide order dated 12-9-2017. He placed copy of the orders on record of the petition and

prays for time to file reply to the petition.

Ms. Naina Saraf appears on behalf of respondent No.3 the Executive Officer of the Board as a caveator and prays for time to file reply to the

petition.

The matter is however heard on stay application as Mr. Kamlakar Sharma, Senior Advocate appearing with Mr. M.S. Rajpurohit has expressed

urgency. He submitted that the petitioner a duly elected Chairman of the Board has been suspended vide order dated 79-2017 is a blatant case of

abuse of the process of law by resort to Section 39(6) of the Act of 2009 on the frivolous allegation that there were irregularities at her instance in a

NIT, which was admittedly cancelled on 9-1-2017. Mr. Kamlakar Sharma submitted that there was no conceivable loss even remotely suffered by the

Board from initiation of tendering process in respect of 27 works and subsequent cancellation of entire tender process (Notice Inviting Tender) even

before its publication. Mr. Kamlakar Sharma submitted that the suspension of the petitioner as a Chairman of the Municipal Board Chaksu is evidently

at the instance of members of the Board belonging to ruling Bhartiya Janta Party, as Annexure-1 of the petition, shows. The complaint was made

against the petitioner on the letter head of the Bhartiya Janta Party addressing her as the “Congressi Chairman†inter alia with allegation that

development work was being done in the wards where congressmen were members to the exclusion of wards with Bhartiya Janta Party members.

Mr. Kamlakar Sharma submitted that this fact itself is indicative of the fact that resort to Section 39(6) of the Act of 2009 is vitiated by abuse of the

law's processes where without any prima facie misconduct or plausible reason the petitioner an elected representative has been mala fidely

suspended.

Reliance has been placed by Mr. Kamlakar Sharma on the judgment of Division Bench of this court in the case of Jan Mohd. Vs. the State of

Rajasthan [1992(2) WLC (Raj.) 463] to submit that this court has cautioned against the casual suspension of an elected representative and held that

they cannot be equated with Government Servants. It was held in the aforesaid case, submitted Mr. Kamlakar Sharma, that the court should ensure

that such suspension of an elected representative should not be arbitrary and brought about only for political motive/ consideration.

To the same effect reliance has been placed on the judgment of this court in the case of Pradeep Hinger Vs. the State of Raj. [2008(1) WLC (Raj.)

294 and Geeta Devi Narooka Vs. State of Rajasthan [2008(2) WLC (Raj.) 261].

Mr. S.K. Gupta, AAG appearing for the State has opposed the prayer of the petitioner for interim relief and submitted that the petitioner as Chairman

of the Board has been prima facie found guilty of gross carelessness, negligence and misconduct as evident from her reply to the show cause notice

where she admitted to the factum of irregularities in NIT, which NIT was though subsequently cancelled on 9-1-2017. Mr. S.K. Gupta submitted that

the petitioner merely seeks to shift the responsibility of the preparation of the NIT without appropriate and administration and technical sanction

required under the Rajasthan Transparency Public Procurement Act, 2012 and the Transparency in Public Procurement Rules, 2013 on the Executive

Officer of the Municipal Board Chaksu for failure to point out breach of rules in the readying of the NIT. He submitted that merely because the NIT

was cancelled on 9-1-2017 because of complaints, it cannot be an escape for the petitioner's dereliction of duty and attempt to put the Municipal

Board to loss through reckless and potentially corrupt motive evident from inclusion of works already completed in the fresh NIT.

Heard. Considered.

Taking into consideration the fact that the petitioner has been suspended in respect of alleged irregularities in a NIT, which has admittedly been

cancelled on 9-1-2017, I am prima facie of the considered view that the order dated 7-9-2017 suspending the petitioner from the post of Chairman of

the Board by resort to Section 39(6) of the Act of 2009 is arbitrary and an abuse of process of law. It is also very debatable as to whether resort to

Section 39(6) of the Act of 2009 could at all be had by the State Government against the petitioner in the fact of the case more so in view of the test

for suspension of an elected representative set out by this court in the case of Jan Mohd (supra), Pradeep Hinger (supra) and Geeta Devi Narooka

(supra). The mere fact that the charge of the post of Chairman of the Board has been handed over to the Vice Chairman of the Board vide order

dated 12-9-2017 is of no consequence. The impugned order dated 7-9-2017 is therefore liable to be stayed. Resultantly the consequential order dated

11-9-2017 giving the charge of the post of Chairman Municipal Board Chaksu to the Vice Chairman shall not be operative.

Consequently, the impugned order dated 7-92017, suspending the petitioner from the post of Chairman of Municipal Board Chaksu is stayed. It is

directed that the petitioner be put back on the post of Chairman of the Board and allow her to hold the charge of the post of Chairman of the Board

and work thereon till further orders.

The petition be listed on October 10, 2017. In the meantime reply to petition be filed. “

Thereafter again when the matter was listed on 11-10-2017 this Court passed the following order :-

“Reply to the petition has not been filed.

Admit, as the matter needs consideration.â€​

Since the writ petition has already been admitted by this Court vide order dated 11-10-2017 and the interim order was passed by this Court on 13-9-

017 after hearing counsel for all the parties, I am not inclined to vacate the interim order passed by this Court dated 13-9-2017.

The application for vacation of the stay order dated 13-92017 stands dismissed.

Heard on the application for early hearing of the writ petition.

For the reasons mentioned in the application, the same is allowed.

List this writ petition for hearing on 23-8-2018.