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2008 DIGILAW 515 (GUJ)

State of Gujarat v. Jayeshkumar Shantilal Panchal

2008-11-14

AKIL KURESHI, K.S.RADHAKRISHNAN

body2008
JUDGMENT : K.S. Radhakrishnan, J. 1. Special Civil Application No. 8414 of 2008 was preferred by 1st respondent Jayeshkumar Shantilal Panchal and three others, seeking a writ of certiorari to quash order dated 9.6.2008 passed by the Designated Authority and to set aside the proceedings relating to Application No. 27 of 2008, and also to grant consequential reliefs. 2. Before the learned Single Judge, contention was raised that Designated Authority Shri P.D. Waghela, Director of Tourism Corporation of Gujarat Ltd. was not holding the post of Secretary to any Department of the State Government and therefore, he cannot be designated as a Competent Authority under Section 6 of the Defection Act. Learned Single Judge accepted the contention and granted interim relief as prayed for. Aggrieved by the same, these appeals have been preferred by the State of Gujarat and others. Identical question came up for consideration in other related matters also and hence, on consent of both the parties, we posted all the matters together for an authoritative pronouncement on the issue involved. 3. Letters Patent Appeal No. 938 of 2008 was accordingly taken up as the leading case. The subject matter of that case relates to election of the President and Vice President of Borsad Nagar Palika, which was held in the year 2005. In that election, out of 36 Councillors, 11 persons got elected. Election of President and Vice President of Borsad Nagarpalika was due and notice under Section 32 of the Act, read with Rules 3 and 4 of Gujarat Nagarpalika (President and Vice President) Election Rules, 1964 was issued. It was noticed that all those Councillors who were elected on the election symbol of Bharatiya Janta Party were issued a mandate by the President of the political party to vote for the presidential candidate, however, it was stated that respondents Nos. 1 to 4 herein acted against that mandate by casting vote in favour of one Smt. Lataben Sushilkumar Dave. Consequently, respondent No. 5 herein preferred Application No. 27 of 2008 before one P.D. Waghela, I.A.S, Director of Tourism Corporation of Gujarat Ltd., an Officer Designated by the State Government, invoking Section 6 of the Defection Act, to resolve the dispute. 4. Consequently, respondent No. 5 herein preferred Application No. 27 of 2008 before one P.D. Waghela, I.A.S, Director of Tourism Corporation of Gujarat Ltd., an Officer Designated by the State Government, invoking Section 6 of the Defection Act, to resolve the dispute. 4. Application was preferred under Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986, read with Gujarat Provision for Disqualification of Members of Local Authorities of defection Rules, 1987, seeking a declaration that respondents Nos. 1 to 4 herein having elected as Councillors be declared disqualified, for violating the party whip. 5. Respondents Nos. 1 to 4 raised a contention that Managing Director of Tourism Corporation of Gujarat Ltd was not holding the post of Secretary to Department of the State Government and, therefore, not eligible to be declared as a Designated Authority under Section 6 of the Defection Act. 6. Chief Secretary to the State Government or Secretary to every Department of the State Government is indisputably eligible to be declared as a Designated Authority by the State under Section 6 of the Defection Act, to decide a question whether any Councillor of a Municipal Corporation or a Member of a Panchayat or a Councillor of a Municipality has been subjected to disqualification under the Defection Act. The question is whether the State Government can nominate an Officer not below the rank of a Secretary to any Department of the State Government as the designated authority, and whether Managing Director of Tourism Corporation of Gujarat Ltd. is below the rank of a Secretary to any Department of the State Government eligible to be declared as a Designated Authority under Section 6 of the Defection Act. Admittedly, Secretary of any Department of the State is eligible to be posted as Managing Director of Tourism Corporation of Gujarat Ltd., or such other Corporations owned by the State Government. 7. Before examining the issue further, we may quote below Section 6 of the Defection Act, for easy reference. Admittedly, Secretary of any Department of the State is eligible to be posted as Managing Director of Tourism Corporation of Gujarat Ltd., or such other Corporations owned by the State Government. 7. Before examining the issue further, we may quote below Section 6 of the Defection Act, for easy reference. "Sec.6 If any question arises as to whether,- (1) a councillor of a Municipal Corporation, or (2) a member of a Panchayat; or (3) a councillor of a Municipality has become subject to disqualifications under this Act, the question shall be referred to the Chief Secretary to the State Government or to such officer not below the rank of a Secretary of any Department of the State Government as may be designated by the State Government in this behalf and his decision shall be final." 8. Government of Gujarat issued a Resolution dated 19th September, 2005 under Rule 9(1) of the IAS (Pay) Rules, 1954, stating that ex cadre post of Managing Director, Tourism Corporation of Gujarat Ltd., Chief Executive Officer, Gujarat Disaster Management Authority should be treated as equivalent in status and responsibilities with the IAS cadre post. Relevant portion of the Resolution is extracted below for easy reference: "Under rule 9(1) of the IAS (Pay) Rules, 1954, Government is pleased to direct that the following ex cadre post should be treated as equivalent in status and responsibilities with the IAS cadre post, as mentioned in Column 3 in the below table, when held by an IAS Officer in that seniority:- Sr. No. Name of ex-cadre post Equated with 1. Managing Director Tourism Corporation of Gujarat Ltd. Gandhinagar Secretary to Govt. 2. Chief Executive Officer Gujarat Disaster Management Authority, Gandhinagar. Secretary to Govt. 2. This issues in exercise of the powers delegated to this Department vide Government Resolution, Finance Department No. Pay/10.2001/341/CH dated 9th March, 2001. By order and in the name of the Governor of Gujarat." 9. Contention was raised by the petitioner that only if an Officer functions as a Secretary of any Department of the State Government, he can be declared as a Designated Authority by the State Government and the moment an Officer ceases to function as a Secretary of any Department, he is ineligible to be declared as a Designated Authority under the Defection Act. 10. 10. Learned Single Judge, while interpreting Section 6 of the Defection Act, took the view that as State Government has to act through his Officer, legislature has identified the officer of State Government, who has to resolve such dispute. Learned Single Judge further opined that, that was the reason why the language of Section 6 of the Defection Act begins with the word Chief Secretary to the State Government, or in alternative a Secretary of any Department of the State Government. Learned Single Judge also opined that the word "not below the rank" has the relevance for not empowering any officer below the rank of a Secretary to resolve such dispute. Learned Single Judge also expressed the view that had intention of the legislature permitting designation to such officer not below rank of Secretary irrespective of the fact that whether he is working in the Department or not, the language could have been "such officer not below the rank of a Secretary of the State Government" and the legislatures would not have used words of "any Department". Learned Single Judge opined that use of the words "any Department" in Section 6 of the Defection Act would show that he must be working in any Department of the State Government. 11. Learned counsel appearing for the writ petitioners endorsed the view of the learned Single Judge, as expressed above. 12. Learned Advocate General on the other hand submitted that if the legislature wanted that only Chief Secretary and Secretary of any Department of State Government to be designated as the Competent Officer to resolve the dispute under Section 6 of the Defection Act, then there was no necessity of using the expression "not below the rank of Secretary of any Department of the State Government". Learned Advocate General submitted that only question to be examined is whether Officer designated under Section 6 of the Defection Act is an officer functioning below the rank of a Secretary of the Department of the State Government, and he need not be physically functioning as Secretary of any Department of the State Government. Learned Advocate General drew support of his reasoning from an interim order passed by the Division Bench of this Court in Special Civil Application No. 5430 of 1992. Learned Advocate General drew support of his reasoning from an interim order passed by the Division Bench of this Court in Special Civil Application No. 5430 of 1992. Learned Advocate General also referred the meaning of expression 'rank' as it appears in Black's Law Dictionary (Sixth Edition) and submitted that word 'rank' is often used to express something different from office, and hence it becomes a designation or title of honour, dignity, or distinction conferred upon an officer in order to fix his relative position in reference to other officers in matters of privilege, precedence, and sometimes of command, or by which to determine his pay and emoluments. 13. We heard learned Counsel on either side at length as also the learned Advocate General. Now, looking at the language of Section 6 of the Defection Act, we noticed that three categories of Officers could be nominated as Designated Officer by the Government while exercising powers under Section 6 of the Defection Act. They are as follows: 1. The Chief Secretary to the State Government; 2. Secretary of any Department of the State Government 3. Such Officer not below the rank of a Secretary of the Department of the State Government. Designated Officer in this case falls under third category, who is holding the office of the Managing Director of Tourism Corporation of Gujarat Ltd., though not holding the post of Secretary to any Department of the State Government. There is nothing to show that he is holding a post below the rank of a Secretary to the Department of the State Government. If the legislature wanted to confer powers to only Chief Secretary or the Secretary of the Department of the State Government, there was no necessity of using the expression "such Officer not below the rank of a Secretary of the Department of the State Government". The above expression takes in not only an Officer holding the post of a Secretary to any Department of the State Government, but also Officer holding any post not below the rank of the Secretary. 14. The petitioners could not demonstrate in any of these cases by producing any material to show that an Officer holding the post of Managing Director of Tourism Corporation of Gujarat Ltd., a fully owned Government Corporation or similar post, is holding a post below the rank of a Secretary to the Department of the State Government. 14. The petitioners could not demonstrate in any of these cases by producing any material to show that an Officer holding the post of Managing Director of Tourism Corporation of Gujarat Ltd., a fully owned Government Corporation or similar post, is holding a post below the rank of a Secretary to the Department of the State Government. Resolution dated 19th September, 2005 issued under Rule 9(1) of the I.A.S. (Pay) Rules, 1954 clearly says that post of Managing Director of Tourism Corporation of Gujarat Ltd., ex cadre post should be treated equivalent in status and responsibilities with I.A.S cadre post i.e. Secretary to the Government. Therefore, it cannot be said that Managing Director of Tourism Corporation of Gujarat Ltd is below in rank or status or responsibilities than Secretary of the Department of the State Government. 15. In N.C. Dalwad's v. State of Gujarat, AIR 1987 SC 1933 , interpreting Rule 161(1), (c), (ii)(1) of Bombay Civil Service Rules, 1959, the Court held that the word 'rank' means grade or status. In High Court v. Amalkumar, AIR 1962 SC 1704 , the Court held that expression 'rank' in Article 311(2) has reference to a person's classification and not his particular place in the same cadre in the hierarchy of the service to which he belongs and therefore, when a person loses some place in seniority, it is not tantamount to reduction in rank. Therefore, an officer need not function as a Secretary of any Department of the State Government in order to be eligible to be designated by the State Government as an Officer to resolve the dispute under Section 6 of the Defection Act, but such Officer should not hold any office below the rank of a Secretary of a Department of the State Government. In other words, to become eligible to be designated by the State Government as an Officer to resolve the dispute under Section 6 of the Defection Act, either such Officer should be the Chief Secretary or Secretary of any Department of the State Government or an Officer not below the rank of a Secretary of the Department of the State Government. Notification produced by the State Government would clearly show that Managing Director of Tourism Corporation of Gujarat Limited has been treated equal in status and responsibilities with that of the Secretary to the Government. Notification produced by the State Government would clearly show that Managing Director of Tourism Corporation of Gujarat Limited has been treated equal in status and responsibilities with that of the Secretary to the Government. In our view, Managing Director of Tourism Corporation of Gujarat Ltd. falls in the third category of Officer i.e. an Officer not below the rank of a Secretary of any Department of the State Government and hence, we see no illegality in Government designating that Officer as a Designated Authority to resolve the dispute under Section 6 of the Defection Act. We therefore, set aside order of the learned Single Judge dated 16.7.2008 and dismiss Special Civil Application No. 8414 of 2008 and all connected Special Civil Applications. Letters Patent Appeals filed by the State Government and another stand allowed. 16. We are informed that in few cases, the Designated Officer has already rendered his decision on merits. The correctness or otherwise of that decision can be questioned before the appropriate forum, subject to our declaration of the competence of State Government to designate such Officers under Section 6 of the Defection Act. 17. Appeals are allowed to the aforesaid extent. Consequently, Civil Applications also stand disposed of.