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2017 DIGILAW 2092 (RAJ)

Ashok Kumar v. State of Rajasthan

2017-09-19

VIJAY BISHNOI

body2017
JUDGMENT : Vijay Bishnoi, J. Pursuant to the order passed by this Court on 15.09.2017, Mr. Ganesh Bansal, Mr. Sumit Kumar and Mr. Anil Kumar, Councillors of Ward Nos. 1, 12 and 25 of the Municipal Council, Hanumangarh respectively are present in person, though, notice for their personal appearance before this Court has not been served upon them. 2. Learned counsel Mr. Manoj Bhandari appearing for the above named three persons undertakes that Mr. Ganesh Bansal, Mr. Sumit Kumar and Mr. Anil Kumar are going to file an undertaking along with their unconditional apology before this Court assuring that in future the happenings, which have been noted down by this Court in the order dated 15.09.2017, will not be repeated by them. 3. Mr. Manoj Bhandari learned counsel for the above named three persons has stated that his clients are also aggrieved with the action of the State Government of handing over the charge of the post of Commissioner, Municipal Council, Hanumangarh to the respondent No. 5 and, therefore, they are supporting the cause of the petitioner. 4. After taking into consideration the submissions made by learned counsel Mr. Manoj Bhandari, the unconditional apology tendered by his clients viz. Mr. Ganesh Bansal, Mr. Sumit Kumar and Mr. Anil Kumar is accepted, their undertaking and unconditional apology be taken on record. Heard on stay petition. 5. Learned counsel Mr. Kuldeep Mathur appearing for the petitioner has argued that the State Government vide order dated 11.11.2016 (Annexure-3) has specifically ordered that no subordinate employee will be given charge of the post of Commissioner of Municipal Council in the absence of a duly appointed Commissioner and the charge of the said post can only be given to the equivalent officer available in the Municipal Council. 6. It is argued by learned counsel for the petitioner that admittedly the respondent No. 5 is only an Accounts Officer of Municipal Council, Hanumangarh and, therefore, the action of the State Government of handing over the charge of the post of Commissioner of Municipal Council, Hanumangarh in the absence of regular Commissioner of Municipal Council, Hanumangarh is illegal and violative of the order dated 11.11.2016 (Annexure-3) passed by the State Government. 7. 7. It is further submitted that there are other officers available in the Municipal Council, Hanumagarh, who are superior in hierarchy than the respondent No. 5, however, the State Government without considering the said situation has illegally passed the impugned order dated 08.09.2017 (Annexure-15) while ordering that the respondent No. 5 will function as Commissioner of Municipal Council, Hanumagarh. 8. It is also argued that on earlier occasions also when the orders of similar nature were passed by the State Government, this Court has granted indulgence and stayed the effect and operations of the said orders and at that time to defeat those writ petitions, the State Government cancelled or withdrawn the said orders, however, after the dismissal of the writ petitions as withdrawn or infructuous, the State Government has again illegally passed the impugned order. 9. Learned counsel for the petitioner has, therefore, prayed that the effect and operation of the impugned order dated 08.09.2017 (Annexure-15) be stayed till the pendency of this writ petition and the respondent No. 2-Directorate Local Self Department, Rajasthan, Jaipur be directed to hand over the charge of the post of Commissioner, Municipal Council, Hanumangarh to a competent officer till the non-availability of the regular Commissioner. Per contra, learned counsel Mr. P.R. Mehta appearing for the respondent No. 3 has argued that the respondent No. 5 is the officer competent to hold the charge of the Commissioner of Municipal Council, Hanumangarh. It is submitted that the Secretary of the Municipal Council, Hanumangarh has refused to take the charge as Commissioner of Municipal Council, Hanumangarh and, therefore, the State Government considering the fact that the respondent No. 5 is the senior most officer in the Municipal Council, Hanumangarh has ordered for handing over the charge of the post of Commissioner to him. 10. Learned AAG Mr. S.S. Ladhrecha appearing for the respondent Nos. 1, 2 and 4 has submitted that the State Government has passed the impugned order dated 08.09.2017 (Annexure-15) only as a stop gap arrangement. It is also submitted that at present only the respondent No. 5 is a senior most officer available at the Municipal Council, Hanumangarh and he is also having experience of working as Commissioner on the past and looking to all these circumstances, the State Government thought it proper to hand over the charge of post of Commissioner, Municipal Council, Hanumangarh in the absence of regular Commissioner. It is also argued that as a matter of fact it is the prerogative of the State Government to hand over the charge of the post of Commissioner of Municipal Council, Hanumangarh in the absence of regular Commissioner and the said action of the State Government cannot be questioned by way of a writ petition. 11. Learned counsel Mr. Harish Purohit appearing for the respondent No. 5 has argued that as a matter of fact the present writ petition is in the nature of quo-warranto writ, however, since, vide impugned order dated 08.09.2017 (Annexure-15), the State Government has simply directed the respondent No. 5 to work as a Commissioner of the Municipal Council, Hanumangarh, it cannot be said that the State Government has appointed any Officer as Commissioner of Municipal Council, Hanumangarh on permanent basis. It is submitted that it is a stop gap arrangement and purely temporary in nature and, therefore, the writ of quo-warranto cannot be issued in such type of matters. 12. Learned counsel for the respondent No. 5 has placed reliance on the decisions of Hon'ble Supreme Court rendered in The University of Mysore v. C.D. Govinda Rao & Anr. reported in AIR 1965 SC 491 (V 52 C 80) and B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association & Ors. reported in AIR 2006 SC 3106 . Heard learned counsel for the parties. 13. It is not in dispute that the respondent No. 5 is working as an Accounts Officer in the Municipal Council, Hanumangarh. It is also not in dispute that the regular Commissioner of Municipal Council, Hanumangarh viz. Mr. Alok Choudhary is temporarily posted at Jaipur in the Directorate, Vidhan Sabha Section for upcoming Vidhan Sabha Session vide order dated 06.09.2017 (Annexure- 14). 14. Vide impugned order dated 08.09.2017 (Annexure-15), the respondent No. 5 is directed to work simultaneously as Commissioner of Municipal Council, Hanumangarh while working as Accounts Officer. The petitioner has challenged the said order of the State Government on the ground that the respondent No. 5 is not having qualification to be appointed as Commissioner of Municipal Council, Hanumangarh. 15. Prima facie it appears that the impugned order dated 08.09.2017 (Annexure-15) is an order, by which the State Government has directed the respondent No. 5 to discharge the functions of the post of Commissioner also while working as Accounts Officer. 15. Prima facie it appears that the impugned order dated 08.09.2017 (Annexure-15) is an order, by which the State Government has directed the respondent No. 5 to discharge the functions of the post of Commissioner also while working as Accounts Officer. The order impugned is temporary in nature and cannot be said to be an order appointing Commissioner of Municipal Council, Hanumangarh on permanent basis. 16. The Hon'ble Supreme Court in the case of The University of Mysore (supra) has specifically held as under:- "(7) ... ... ... ... ... ... Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the findings that the holder of the office has no valid title to it , the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public officers against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or which its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not." 17. Relying upon the aforesaid decision, the Hon'ble Supreme Court in the case of B. Srinivasan Reddy (supra) has specifically held as under:- "43. ... ... ... An appointment which is temporary remains temporary and does not become a permanent with passage of time. The finding records by the learned Single Judge that the appointment is bad for the reason that the appointment which was made on temporary basis has continued for nearly 2 years is wholly contrary to law particularly when the Act and the Rule do not stipulate maximum period of appointment. The High Court, in our view, gravely erred in issuing a Writ of Quo Warranto when there is no clear violation of law in the appointment of the appellant." 18. Learned counsel for the petitioner has failed to point out any specific provision of Rajasthan Municipalities Act, 2009, which specifies that how charge of the post of Commissioner of Municipal Council can be handed over in the absence of a regular Commissioner. 19. As observed earlier, the State Government vide impugned order dated 08.09.2017 (Annexure-15) has simply asked the respondent No. 5 to work as Commissioner of the Municipal Council, Hanumangarh along with his regular work as Accounts Officer. The said arrangement is made by the State Government till the regular Commissioner comes and joins the said post. 20. Having considered all these aspects of the matter, I am not inclined to stay the effect and operation of the impugned order dated 08.09.2017 (Annexure-15). 21. Hence, the stay petition is dismissed.