H. H. PARMAR v. COLLECTOR,rajkot — 1979 DIGILAW 113 (GUJ)

S. H. SHETH, J. ( 1 ) PETITIONER was originally appointed on 27th July 1968 as a Surveyor by Jetpur Municipality. On 11th December 1968 he was promoted to the post of an Overseer. On 1st April 1970 he was promoted to a still higher post of an Engineer. On 12th November 1971 his services were terminated by the Municipality. He challenged that termination in a writ petition which he filed in this Court. His petition was allowed. As a result thereof he was reinstated in his post of an Engineer on 10th October 1972. On the same day he was promoted to the post of a Chief Officer. On 22nd November 1973 he was suspended from service. ( 2 ) IT appears that the Jetpur Municipality passed on 4th November 1972 a Resolution appointing the petitioner to the post of the Chief Officer. When this appointment came to the notice of the Collector of Rajkot he in exercise of powers conferred upon him by sec. 258 of the Gujarat Municipalities Act 1963 stayed the operation of that Resolution. Thereafter he issued on 2nd November 1973 a notice to the Municipality to show cause why its Resolution should not be permanently stayed. It appears that Jetpur Municipality filed Special Civil Application No. 196 of 1973 in this Court in which the order of the Collector staying the implementation of the said Resolution was challenged. That petition was summarily dismissed on 13th February 1973. Letters Patent Appeal No. 15 of 1973 was filed against that order. It was dismissed on 23rd February 1973 On 10th June 1974 the Collector after hearing the municipality confirmed its interim order and permanently stayed the implementation of the said Resolution. On 29th June 1974 the municipality intimated to the petitioner that the Collector had permanently stayed the implementation of the said Resolution. It is that order which is challenged by the petitioner in this petition. ( 3 ) IT has been contended by Mr. Kothari who appears on behalf of the petitioner that the Collector had no authority to stay the implementation of the Resolution of the municipality. The first argument which Mr. Kothari has raised in this behalf is that the petitioner was not heard before the Collector made the impugned order and that therefore the principles of natural justice were violated. Kothari who appears on behalf of the petitioner that the Collector had no authority to stay the implementation of the Resolution of the municipality. The first argument which Mr. Kothari has raised in this behalf is that the petitioner was not heard before the Collector made the impugned order and that therefore the principles of natural justice were violated. The second argument which he has raised is that the appointment of the petitioner was not unlawful. Thirdly he has argued that under sec. 258 the Collector has no authority or jurisdiction to make the impugned Order. He has also argued that the impugned order was unlawful because the provisions of sub-sec. (2) of sec. 258 were not complied with. ( 4 ) IN order to examine several arguments which Mr. Kothari has raised it is necessary to turn to a few sections and to find out in light of the facts on record whether the said resolution passed by the municipality was lawful or not. Sub-sec. (1) of sec. 47 provides that for every municipality there shall be a chief officer appointed by the municipality Sub-sec. (2) which is material for the purposes of this case provides as follows:"save as otherwise provided in sub-sec (3) the person to be appointed as a chief officer shall be a graduate of a recognised University or a qualified engineer or a person who holds a diploma in Local Self Government of an institution recognised by the State Government and has experience of municipal administrative work for not less than seven years". Sub-sec. (3) carves out an exception and specifies the circumstances under which a person not eligible to be appointed as the Chief Officer under sub-sec. (2) of sec. 47 may be so appointed. Provisions of subsecs. (4) and (5) are not relevant for the purpose of the present case The eligibility which a person is required to satisfy before he is appointed as the Chief Officer of a municipality under sub-sec. (2) of sec. 47 is that he must be either a Graduate of a recognized University or a qualified Engineer or a person who holds a diploma in Local Self Government of an institute recognised by the State Government and has experience of municipal administrative work for not less than seven years. The first three qualifications are alternative. (2) of sec. 47 is that he must be either a Graduate of a recognized University or a qualified Engineer or a person who holds a diploma in Local Self Government of an institute recognised by the State Government and has experience of municipal administrative work for not less than seven years. The first three qualifications are alternative. All that is necessary for a person to be eligible is to satisfy one of them. There is no dispute about the fact that the petitioner is a qualified engineer. There is also no dispute about the fact that he holds a diploma in Local Self Government of an institute recognized by the State Government. Therefore the first part of the eligibility specified in sub-sec. (2) of sec. 47 is satisfied by him. However what has been disputed is that at the date of his appointment as Chief Officer he did not have the experience of municipal administrative work for not less than seven years. The order made by the Collector shows that at that date he had administrative experience of four years and two months. We have ascertained the facts relating to his administrative experience. It is necessary to note that what sub-sec. (2) of sec. 47 requires is experience of municipal administrative work which in our opinion is different from technical experience. The petitioner joined service of Jetpur Municipality as a Surveyor on 27th July 1968. Thereafter he became an Overseer on 11th December 1968 and was appointed as the Engineer with effect from 1st April 1970. These are the facts which have been stated by Mr. Kothari who appears on behalf of the petitioner. We are unable to accept the general proposition that a Surveyor or an Overseer has experience of municipal administrative work. He may have technical experience for discharging the duties which are assigned to him. Both a surveyor and an overseer are working under the Engineer. It is the Engineer who discharges not only the technical duties but also discharges the administrative functions. It can therefore be said without any fear of contradiction that the petitioner when he was appointed to the post of the Engineer on 1st of April 1970 started gaining the experience of municipal administrative work. He had that experience for 1 year and 7 months because his services as an Engineer were terminated with effect from 12th November 1971. It can therefore be said without any fear of contradiction that the petitioner when he was appointed to the post of the Engineer on 1st of April 1970 started gaining the experience of municipal administrative work. He had that experience for 1 year and 7 months because his services as an Engineer were terminated with effect from 12th November 1971. He was again reinstated to that post on 10th October 1972. His appointment as the Chief Officer was terminated on 22nd November 1973. He therefore further gained experience of municipal administrative work for a period of one year and one month. These facts make it clear that prior to his appointment as the Chief Officer the petitioner had the experience of municipal administrative work for a period of 1 year and 7 months only. ( 5 ) MR. Kothari has tried to argue that the expression and has experience of municipal administrative work for not less than seven years goes only with the expression a person who holds a diploma in Local Self Government of an institute recognised by the State Government and does not go with the expression a graduate of a recognised University or a qualified engineer. The argument which Mr. Kothari has raised postulates that a fresh graduate of a recognised University or a qualified engineer need not necessarily have experience of municipal administrative work at least for seven years and that such a graduate or a qualified engineer can he appointed as a Chief Officer. The expression a qualified engineer in our opinion means a person who is academically qualified to serve as an engineer. In the context in which that expression has been used it does not connote anything more than the academic qualifications. We are unable to uphold this contention raised by Mr. Kothari firstly because the language of sub-sec (2) does not warrant the conclusion which he wants us to record. ( 6 ) SO far as the legislative intent is concerned it is difficult for us to imagine that a fresh graduate of a recognized University or an academically qualified engineer without having any experience can be appointed as the Chief Officer of a municipality who bears the burden of entire administration upon him and who is the chief executive of the municipality. It cannot be gainsaid that a Chief Officer of the Municipality is required to run the entire administration of the municipality to handle and to control it. It is difficult for us to imagine that an inexperienced graduate or engineer can ably and efficiently handle the administration of the municipality. Therefore taking into account both the language of sub-sec. (2) of sec. 47 and the legislative intent we are of the view that seven years experience of municipal administrative work is the qualification which a graduate of a recognized University or a qualified engineer or a person who holds a diploma in Local Self Government of an institute recognized by the State Government is required to possess in order to be eligible to be appointed as a Chief Officer. ( 7 ) THE next argument which he has raised before us is that the petitioner was not given an opportunity of being heard before the Collector made the impugned order under sec. 258. Sub-sec. (1) of sec. 258 provides as follows:"if in the opinion of the Collector the execution of any order or resolution of a municipality or the doing of anything which is about to be done or is being done by or on behalf of a municipality is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful he may by order in writing under his signature suspend the execution or prohibit the doing thereof and where the execution of any work in pursuance of the order or resolution of the municipality is already commenced or completed direct the municipality to restore the position in which it was before the commencement of the work". The question which has arisen before us in the context of sub-sec. (1) of sec. 258 is whether the petitioner was entitled to be heard before the Collector made the impugned order. ( 8 ) THE Resolution was indeed passed by the Municipality. If the resolution affected the municipality alone the question of hearing a third party would not arise. However can it be said that a third party who has received some benefit under the resolution is not entitled to be heard before the benefit which has accrued to him is withdrawn by the Collector by making an order under sec. 258 (1) ? However can it be said that a third party who has received some benefit under the resolution is not entitled to be heard before the benefit which has accrued to him is withdrawn by the Collector by making an order under sec. 258 (1) ? ( 9 ) NOW so far as the resolutions such as one with which we are concerned in this case are passed there are three stages of procedure. The first stage consists of the municipality passing such a resolution. The second stage consists of the President of the Municipality or any other authorized officer issuing an order of appointment under such a Resolution. The third stage consists of the person assuming charge of his office to which he is appointed under such a Resolution. If the Municipality has passed such a resolution and if no order of appointment has been issued in pursuance thereof there is no doubt in our minds that it creates no right in favour of a third person and that therefore none except the municipality is required to be heard before an action is taken under sec. 258 However if an order of appointment has been issued and the appointee has taken charge of his office under the resolution a right accrues to the appointee to hold that office. Whether that right has lawfully accrued to him or unlawfully accrued to him cannot be decided against him unless he has been heard. It was therefore necessary for the Collector to issue notice to the petitioner giving him a reasonable opportunity of being heard before he made the impugned order. ( 10 ) IT has been argued by Mr. M. B. Shah and Mr. P. M. Raval that no person has a right to claim benefit from an unlawful resolution order or action and that an unlawful resolution order or action is incapable of producing any such effect. The argument which has been raised by Mr. Shah and Mr. Raval in reply creates a vicious circle. As an academic proposition it is true that an unlawful resolution or order confers no rights upon a third party nor is it capable of producing any such rights or benefits. But can the Collector decide against the beneficiary of that resolution or an appointee thereunder that it is unlawful without giving him a reasonable opportunity of being heard ? As an academic proposition it is true that an unlawful resolution or order confers no rights upon a third party nor is it capable of producing any such rights or benefits. But can the Collector decide against the beneficiary of that resolution or an appointee thereunder that it is unlawful without giving him a reasonable opportunity of being heard ? It is therefore wrong to assume against a third person in whose favour such a resolution operates and who has not been heard that it is unlawful It was not enough therefore for the Collector that he heard the municipality and took the impugned action. It was absolutely necessary for him to give a reasonable opportunity to the petitioner of being heard. Inasmuch as he did not do it the impugned order made by him was vitiated in so far as the petitioner was concerned. ( 11 ) IT has in this context been further argued by Mr. Shah and Mr. Raval that the petitioner can as well show here that the impugned action is unlawful on merits. The answer to this contention which has been raised by Mr. Shah and Mr. Raval is interlinked with the answer to the contention whether the Collector has authority or jurisdiction under sec. 258 to suspend or stay a resolution of this kind. We shall therefore examine it a little later. . . . . . . . . . . . . . . . . . . . ( 12 ) THE next argument which Mr. Kothari has raised is that under sub-sec. (1) of sec. 258 the Collector has no authority to suspend or stay the execution of the resolution in question. What the Collector can do has been specified in sub sec. (1) of sec. 258. If the execution of an order or resolution of the municipality or if an action which the municipality is about to take or is being taken is causing or likely to cause injury or annoyance to the public or to lead to a breach of peace or is unlawful the Collector can take action under sub-sec. (1) of sec. 258. Mr. (1) of sec. 258. Mr. Kothari has argued that the expression unlawful should be read only in context of the expression the execution of any order or resolution of a municipality or the doing of anything which is about to be done or is being done by or on behalf of a municipality. According to him if the expression unlawful which follows the said expression is read as preceding it then the Collector did not have the authority or jurisdiction to suspend the resolution in question. We are unable to condition the connotation of the expression unlawful in the artificial manner in which Mr. Kothari has propounded before us. In our opinion the scheme of sub-sec. (1) of sec. 258 is very clear Firtly the Collector has the authority or the jurisdiction to suspend the execution even of a lawful order or resolution of a municipality which is likely to cause injury or annoyance to the public or to lead to a breach of peace. He has also the jurisdiction and authority to prohibit the municipality from doing something which may otherwise be lawful or which is about to be done or is being done otherwise lawful if it is likely to cause or is causing injury or annoyance to the public or to lead to a breach of peace. Therefore the scheme of sub-sec. (1) of sec. 258 as we understand it is that public interest is the sole consideration while deciding whether the execution of any order or resolution of a municipality should be suspended or whether any action which it is taking or is about to take should be prohibited irrespective of whether it is lawful or unlawful and that considerations of public interest override even the lawful character of the order resolution or action of the Municipality. Therefore to transplant the expression unlawful from where it has been placed to the earlier part of sub-sec. (1) of sec. 258 and to hold that it is only an unlawful order or resolution or action which is causing or which is likely to cause injury or annoyance to the public or to lead to a breach of peace can be suspended by the Collector is to deprive sub-sec. (1) of sec. 258 of its efficacy and its purpose and to confine it to unnecessarily narrow limits. (1) of sec. 258 of its efficacy and its purpose and to confine it to unnecessarily narrow limits. In that view of the matter we are of the opinion that whereas the power of the Collector under sub-sec. (1) of sec. 258 extends to the execution of any order or resolution by a municipality lawful or unlawful or to any action which the municipality is taking or is about to take lawful or unlawful provided it causes or is likely to cause injury or annoyance to the public or to lead to a breach of the peace his authority and jurisdiction in all other cases to take action under sub-sec. (1) of sec. 258 is confined only to unlawful character of the orders or resolutions of the municipality or the actions which it is taking or is about to take. By na stretch of imagination can it be said that the resolution in question falls under the first part of sub-sec. (i) of sec. 258. The resolution in question could be suspended only if it was unlawful because by its very nature it could not cause injury or annoyance to the public or lead to a breach of peace. We have already analysed the provisions of sub-sec. (2) of sec. 47 and recorded the conclusion that at the date of his appointment under the resolution in question the petitioner did not satisfy the eligibility and that therefore that resolution was unlawful. The Collector therefore under sub-sec. (1) of sec. 258 prima facie had the authority and jurisdiction to make the impugned order. ( 13 ) MR. Kothari has invited our attention to the Full Bench decision of this Court recorded in Letters Patent Appeal No. 52 of 1969 decided on 10th January 1972 The principles laid down in that decision have no application to the instant case because this Court in that case was not concerned with defining the width and amplitude of sub-sec. (1) of sec. 258 of the Gujarat Municipalities Act 1963 This Court was called upon in that case to interpret secs. 47. 48 and 50 of the Act. In that case Palitana municipality sought to take action against its Chief Officer not because his appointment was unlawful but because of certain other reasons. ( 14 ) IT has also been argued by Mr. Kothari that the width and amplitude of sub-sec. (1) of sec. 47. 48 and 50 of the Act. In that case Palitana municipality sought to take action against its Chief Officer not because his appointment was unlawful but because of certain other reasons. ( 14 ) IT has also been argued by Mr. Kothari that the width and amplitude of sub-sec. (1) of sec. 258 must necessarily be confined to narrow limits when it is viewed in light of secs. 47 48 and 50. Sec. 47 as already pointed out above inter alia deals with the appointment of a Chief Officer and the qualification which a person is required to satisfy before he is appointed as a Chief Officer. Sec. 48 deals inter alia with the removal of the Chief Officer. Sec. 50 confers upon the State Government power to require a municipality to remove inter alia its Chief Officer. These three sections present a coordinated scheme showing how a valid appointment of a Chief Officer can be made how a validly appointed Chief Officer can be removed by a municipality and how and under what circumstances the State Government may require a municipality to remove its Chief Officer validly appointed. Secs. 47 48 and 50 do not in our opinion contemplate a case of an unlawful appointment of a person as Chief Officer. They apply to na case where a Chief Officer has been validly appointed and yet the municipality wants to remove him or where the State Government wants the municipality to remove him. It is wrong therefore to interlink secs. 47 48 and 50 with sec. 258 and to accede to the illogical argument advanced by Mr. Kothari in that behalf. ( 15 ) SEC. 258 so far as appointments are concerned operates in a field which in our opinion is altogether excluded from the field in which secs. 47 48 and 50 operate. To bring all these four sections in one concentric circle is to create confusion worse confounded. To do so is neither prudence nor rationality. ( 16 ) THE last argument which has been raised by Mr. Kothari is that sub-sec. (1) of sec. 258 does not apply to an executed resolution but that it applies only to an executory resolution. To bring all these four sections in one concentric circle is to create confusion worse confounded. To do so is neither prudence nor rationality. ( 16 ) THE last argument which has been raised by Mr. Kothari is that sub-sec. (1) of sec. 258 does not apply to an executed resolution but that it applies only to an executory resolution. In other words the argument which he has sought to raise is that if a resolution has been fully implemented and that if nothing more remains to be done then there is nothing which remains to be suspended. However if a resolution has not been executed at all or if it has been partly executed then its execution can be suspended or further execution thereof can be suspended. Pointing out the facts in the instant case about which there is no dispute he has argued that the resolution in question appointed the petitioner to the post of the Chief Officer of Jetpur Municipality ard that its execution was complete and nothing further remained to be done with the issuance of the order of appointment in pursuance thereof to the petitioner and the petitioner taking charge of his office under that resolution. The facts of the case show that the petitioner took charge of the post of the Chief Officer Jetpur Municipality on 10th October 1972 and that he held it till 22nd November 1973 a period of about 13 months. It is therefore clear that the resolution in question was fully implemented with the petitioner having taken charge of his office and that nothing remained to be done under that resolution. ( 17 ) HE has invited our attention in that behalf to the decision of the Supreme Court in Municipal Board Kannauj v. The State of U. P. and Others AIR 1971 S. C. 2147. In that case the Supreme Court was dealing with a case under sec. 34 (1-B) of the U. P. Municipalities Act (2 of 1916 ). ( 17 ) HE has invited our attention in that behalf to the decision of the Supreme Court in Municipal Board Kannauj v. The State of U. P. and Others AIR 1971 S. C. 2147. In that case the Supreme Court was dealing with a case under sec. 34 (1-B) of the U. P. Municipalities Act (2 of 1916 ). Sec. 34 (1-B) of the U. P. Act provided as follows:"the State Government may of its own motion or on report or complaint received by order prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a board or a committee of a board or a joint committee or any officer or servant of a board or of a joint committee if in its opinion such resolution or order is prejudicial to the public interest or has been passed or made in abuse of powers or in flagrant breach of any provision of any law for the time being in force and may prohibit the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order. (Emphasis supplied)". In that case the Executive Officer of the Municipal Board Kannauj had dismissed 74 sweepers of the municipality. The Governor of U. P. in exercise of the powers conferred by sec. 34 (1-B) of the U. P. Act reproduced above prohibited the execution of that order and also prohibited the municipality from doing any act under that order or to continue to do it. It was in that context that the Supreme Court laid down the principle that all that could be done under sec. 34 (1-B) was to prohibit the execution or further execution of the resolution or order or the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order. The Supreme Court further laid down that where the resolution or order does not require any acts to be performed or steps to be taken for the execution or further execution of the resolution or order of the Board or of its officer there is really nothing which can be prohibited. The material part of sub-sec. (1) of sec. 258 of the Gujarat Municipalities Act 1963 is similar to the material part of sub-sec. (1-B) of sec. The material part of sub-sec. (1) of sec. 258 of the Gujarat Municipalities Act 1963 is similar to the material part of sub-sec. (1-B) of sec. 34 of the U. P. Act. In our opinion the principle which has been laid down by the Supreme Court in the decision above referred to will govern the present case and also the interpretation of sub-sec. (1) of sec. 258. ( 18 ) MR. M. B. Shah has however argued that sec. 34 (1-B) of the U. P. Act did not contain the following provision which sub-sec. (1) of sec. 258 contains and that that expression makes all the difference in the application of sub-sec. (1) of sec. 258. The expression upon which Mr. Shah and Mr. Raval have relied is as follows: and where the execution of any work in pursuance of the order or resolution of the municipality is already commenced or completed direct the municipality to restore the position in which it was before the commencement of the work. It is true that sec. 34 (1-B) of the U. P Act as resproduced in the decision of the Supreme Court above referred to did not contain this provision. It is therefore necessary for us to find out the exact connotation of the aforesaid provision which occurs in sub-sec. (1) of sec. 258. ( 19 ) IT has been argued on behalf of the respondents that the expression the execution of any work means any action taken under any order or resolution of the municipality. In other words the word work is sought to be equated with the word action. We are unable to accede to the construction which has been placed on the aforesaid expression on behalf of the respondents. In our opinion the word work refers to public works such as construction of a building bridge road or digging the soil such as for the purpose of laying the drainage. This word does not in our opinion command such a wide amplitude as to embrace within its sweep all actions and orders taken in execution of an order. Therefore status-quo ante may be ordered to be restored where a work has already commenced or has been completed. This word does not in our opinion command such a wide amplitude as to embrace within its sweep all actions and orders taken in execution of an order. Therefore status-quo ante may be ordered to be restored where a work has already commenced or has been completed. The expression commenced or completed is more in harmony with the word work meaning a public work and is not in harmony with the word action meaning any action taken under an unlawful resolution such as one in the instant case. We are therefore unable to uphold the argument that the principle laid down by the Supreme Court in the decision above referred to will not govern the interpretation of sub-sec. (1) of sec. 258 of the Gujarat Municipalities Act 1963 In our opinion therefore since under the resolution in question the petitioner had already taken charge and functioned for a period of about 13 months there was nothing which remained to be done under the resolution and which could be suspended or stayed by the Collector. The Collector therefore had no authority or jurisdiction to make the impugned order. We may point out at this stage that if the Collector had issued to the petitioner notice to show cause he could have certainly stated to the Collector that since the Resolution in question was fully implemented and since nothing remained to be implemented thereunder he had no authority or jurisdiction to make the impugned order. In our opinion therefore the impugned order suffers from two-fold legal infirmity and is liable to be quashed. ( 20 ) OUR attention has been invited to the decision of Mr. Justice N. H. Bhatt in Shree Dasa Sorathiya Vanik Gnati v. State of Gujarat 19 G. L. R. 1000 Sec. 258 sub-sec. (1) came up for construction in that case. The learned Single Judge on a thread-bare analysis inter alia held that if under sub-sec. (1) of sec. 258 anything was already commenced or completed the municipality could be directed to restore the position which prevailed before the commencement or completion of that thing. In that case a part of the public street admeasuring 389. 1 square yards was sold by the Junagadh Municipality at a concessional rate of Re. 1/- per square yard. Several resolutions were passed by the municipality in that behalf. In that case a part of the public street admeasuring 389. 1 square yards was sold by the Junagadh Municipality at a concessional rate of Re. 1/- per square yard. Several resolutions were passed by the municipality in that behalf. By the first resolution dated 17th March 1971 it was resolved by the Junagadh municipality to sell it to the petitioner trust. By the second resolution dated 30 March 1971 the first mentioned resolution was cancelled. On 15th June 1971 a third resolution was passed by which the second-mentioned resolution was cancelled and the first-mentioned resolution was restored. Thereafter a fourth resolution was passed on 9th of August 1971 by which the third mentioned resolution was cancelled. Thereafter on 26th January 1972 a fifth resolution was passed by which after inviting the objections from the members of the public the public street was closed and the land in question was resolved to be sold to the petitioner trust. In pursuance of that resolution the consideration for the sale transaction was accepted and the sale deed was executed. The Collector of Janagadh issued notice to the petitioner trust and the Junagadh Municipality. In the enquiry which he held he recorded the conclusion that no proceedings for de-streeting the said land had been taken. He therefore made an order under sec. 258 (1) by which he cancelled the last-mentioned resolution passed by the Junagadh Municipality. It appears that thereafter the State Government acted under sec. 262 and annulled the said resolution and ordered the encroachment on the said land to be removed. It was that action of the Collector and the State Government which was challenged in that petition. The question which arose before the learned single Judge in that case was whether under sec. 258 the action which the Collector and the State Government took could have been taken. In that connection the learned single Judge has construed sec. 258 and laid down the principle to which we have referred above. We are unable to agree with the principle laid down by the learned single Judge because whereas sec. 258 refers to commencement continuance or completion of any work the learned single Judge has referred to commencement continuance or completion of the thing. In other words he has with great respect to him erroneously equated the expression work with the expression thing. 258 refers to commencement continuance or completion of any work the learned single Judge has referred to commencement continuance or completion of the thing. In other words he has with great respect to him erroneously equated the expression work with the expression thing. The expression thing may connote an action which is not a work or a public work but the expression work is incapable of connecting an action-a mere action. Therefore the analysis of sec. 258 (1) which the learned single Judge has made in that decision suffers from an error in our opinion a fatal error-inasmuch as he has read the expression thing in place of expression work. . ( 21 ) IN the result in light of the findings which we have recorded on the contentions relating to violation of natural justice and on the interpretation of sub-sec. (1) of sec. 258 we are of the opinion that the impugned order made by the Collector of Rajkot suffered from two fatal infirmities. It is therefore liable to be quashed. ( 22 ) THEREFORE the petition is allowed and a writ of mandamus shall issue directing the Collector to quash the impugned order and to desist from giving effect to it Rule is made absolute with costs. ( 23 ) WE may however add that consistently with what we have said in this judgment it is open to the Municipality or the Collector to take any other action in respect of the petitioners appointment and that this decision in such a case will lot come in their way. .