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2024 DIGILAW 1075 (GUJ)

Rasendru S. Parekh v. Lalubha B. Jadeja

2024-05-01

BIREN VAISHNAV, PRANAV TRIVEDI

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JUDGMENT : BIREN VAISHNAV, J. ORDER IN CIVIL APPLICATION NO. 2 of 2014. Heard the learned counsel appearing for the applicant. Considering the averments made in the application, prayer in terms of paragraph 5(b) is granted. The delay of 1436 days that has occurred in bringing legal heirs on record is hereby condoned. Civil application is allowed accordingly. ORDER IN CIVIL APPLICATION NO. 1 of 2014 Heard learned counsel appearing for the applicant. Having considered the averments made in the application, prayers in terms of para 5(b) is granted. Registry to amend the cause title of the main appeal, accordingly. Civil Application is allowed, accordingly. ORDER IN LETTERS PATENT APPEALS 1. These appeals have been filed by the original respondents No.2 and 3 (private respondents) and the Bhavnagar Municipal Corporation, original respondent No.1 in Special Civil Application Nos. 2987 of 1988 and 3341 of 1988. They challenged the oral judgment dated 15.09.2004 passed by the learned Single Judge which partly allowed the petitions of the original petitioner in the petition, namely, Shri Lalubha Bahadursinh Jadeja. 2 Lalubha Bahadursinh Jadeja, the sole petitioner of Special Civil Application No. 2987 of 1988, approached this Court by way of the captioned petition with a prayer that a writ be issued for quashing and setting aside the orders promoting the private appellants herein who were the original respondent Nos. 2 and 3 in the petition to the post of Octroi Valuation Officer. 2.1 It was his case that he was initially recruited as a daily wager, Clerk on 23.11.1976 and confirmed as Junior Clerk with effect from 01.04.1983. It was his case that he has passed his L.S.G.D Examination. According to the petitioner, though he was qualified and eligible for being promoted as a Valuation Officer in the grade of 500-930/-, the respondent Nos. 2 and 3 were promoted as Octroi Valuation Officers by the Commissioner. 2.2 According to the petitioner, the General Board on 04.02.1986, had sanctioned two posts of Octroi Valuation Officers in the pay-scale of Rs.500-930/-. The qualification prescribed for the said post was that of graduation in Engineering, Science or Commerce with L.L.B. It was the case of the original petitioner before the learned Single Judge that the respondent Nos. 2 and 3 were promoted as Octroi Valuation Officers though, they neither possessed the qualification of graduation in Engineering, Science or Commerce with L.L.B, instead the respondent Nos. 2 and 3 were promoted as Octroi Valuation Officers though, they neither possessed the qualification of graduation in Engineering, Science or Commerce with L.L.B, instead the respondent Nos. 2 and 3 were Arts Graduate. 2.3 According to the petitioner, therefore, the promotion of respondent Nos. 2 and 3 was contrary to the rules and therefore the same be quashed and set aside. 2.4 The Corporation filed its reply before the learned Single Judge contending that the promotions were in accordance with law. However, it was an admitted fact that the petitioner was in the seniority list at serial no. 95 whereas the private respondent Nos. 2 and 3 were at serial nos. 107 and 117 respectively. According to the Corporation, since a criminal case was pending against the original petitioner, he was considered for promotion but not promoted and since the respondent Nos. 2 and 3 were found suitable for promotion, were promoted to the posts in question. 2.5 Perusal of the order of the learned Single Judge would indicate that the learned Single Judge considered the provisions of the Bombay Municipal Corporation Act, particularly Sections 454 and 457 thereof read with Sections 59 and Sections 45 to 60 thereof. Sections 51 and 53 were also appreciated and the learned Single Judge on perusal of the provisions found that the powers to appoint Officers and Servants of the Corporation vests in the Corporation. The Standing Committee is empowered to determine the number, the designations, the grades and salaries. According to the learned Single Judge, neither Sec.51 nor Sec.53 of the Act empowered the Standing Committee to determine the qualifications required to be possessed by the Officers and Servants of the Municipal Corporation. Having found that, in the facts of the case in the petition, since the proposal was made by the Standing Committee with respect to creation of posts of Valuation Officers which came to be approved by the General Body of the Corporation, the decision of the Standing Committee to alter the decision of the General Body of the Corporation by the Resolution dated 25.05.1986 was contrary to law and in fact held to be without authority of law. The relevant paragraphs of the oral judgment are quoted as under: “On perusal of the above provisions, it is evident that power of appointment of Officers and servants of the Municipal Corporation vests either in the Corporation or in the Municipal Chief Auditor or the Municipal Secretary; as the case may be. The Standing Committee is empowered, inter alia, to determine the number, designations, grades, salaries, fees and allowances of servants immediate subordinate to the Municipal Chief Auditor and the Municipal Secretary. In case of other servants, such powers are conferred upon the Standing Committee; subject to the proposal to be made by the Commissioner. Neither section 51 nor section 53 of the Act empowers the Standing Committee to determine the qualifications required to be possessed by the Officers and servants of the Municipal Corporation. Such matters are required to be provided by the Corporation under Rule 3 of Chapter-III of Schedule-A to the Act or by rules made in exercise of power conferred by Section 454 of the Act or by the Standing Committee by regulation made in exercise of power conferred by Section 465 of the Act, as the case may be. In absence of rules or regulations made in exercise of power conferred by Section 454 or section 465 of the Act, the decision of the Corporation shall prevail. It is well settled that the Corporation acts through the body of Councillors i.e. the decision of the General Body of Councillors shall prevail. In the present case indisputably the proposal made by the Standing Committee with respect to the creation of posts of Valuation Officer and the qualifications required for appointment to the said posts made under its Resolution No. 419 dated 1st June, 1986 came to be approved by the General Body of the Corporation with modification as aforesaid. The said decision of the General Body of the Corporation shall be final and shall prevail over any previous or subsequent decision of the Standing Committee. The decision dated 4th February, 1986 was also taken note of in the Office Note dated 10th February, 1986. In view of the said legal position, the Standing Committee had no power or authority to alter the decision of the General Body of the Corporation as was done in the present case by the Standing Committee by its Resolution No. 308 dated 25th May, 1986. In view of the said legal position, the Standing Committee had no power or authority to alter the decision of the General Body of the Corporation as was done in the present case by the Standing Committee by its Resolution No. 308 dated 25th May, 1986. It is also doubtful whether such decision was taken on 25th May, 1986 as averred. The said Resolution No. 308 does not refer to such decision or to the appendix. What is produced before the Court is appendix dated 15th May, 1986. In my view, the action of the Standing Committee in modifying the required qualification was without the authority of law. The same is, therefore, illegal and inoperative. Appointments made pursuant to the said decision, contrary to the decision of the General Body of the Corporation are, therefore, illegal and void ab initio. The respondents nos. 2 & 3 admittedly did not possess the qualifications required for appointment as Valuation Officer; as determined by the General Body of the Corporation and recorded in the Office Note dated 10th February, 1986. The promotion of the respondents no. 2 & 3 to the posts of Valuation Officer was illegal and void ab initio. The Municipal Commissioner having taken note of the Office Note dated 10th February, 1986, without referring to their eligibility, promoted the respondents no.2 & 3 to the post of Valuation Officer in contravention of the aforesaid Office Note dated 10th February, 1986. Hence, the action of the Municipal Commissioner in promoting the respondents no. 2 & 3 as Valuation Officer was equally bad and illegal. The promotion of the respondents no. 2 & 3 as Valuation Officer being void ab initio, their further promotion to the post of Superintendent also is bad and illegal.” 2.6 Having held thus, the learned Single Judge quashed the orders of the respondent Nos. 2 and 3 as Valuation Officers and directed that they be demoted forthwith to the posts of Junior Clerks. The learned Single Judge further directed that the post of Valuation Officer be filled in accordance with law. The Special Civil Application was allowed, however, the prayer for retrospective promotion of the petitioner with consequential benefits was rejected. 3 Mr.B.P.Tanna, learned Senior Advocate appearing in the appeals filed by the private respondents to the petition, would take us through various orders passed by this Court while admitting the appeal. The Special Civil Application was allowed, however, the prayer for retrospective promotion of the petitioner with consequential benefits was rejected. 3 Mr.B.P.Tanna, learned Senior Advocate appearing in the appeals filed by the private respondents to the petition, would take us through various orders passed by this Court while admitting the appeal. He would submit that in the year 2004 by an order dated 29.10.2004, the order of the learned Single Judge under challenge was stayed as a result of which, the original respondents whose promotions were quashed and set aside continued to hold the posts whereas the original petitioner, the private respondent in the appeal did not get the fruits of the order and he too retired in the year 2015. He would submit that the judgment of the learned Single Judge of the year 2004 has never seen the light of the day. 3.1 Mr.Tanna, learned Senior Counsel, would also invite our attention to the order passed by this Court on 04.12.2018, recording the stand of the Corporation that the Corporation had already passed a resolution to grant the benefits to the original petitioner – private respondent herein and a proposal seeking the approval of the State Government was moved. The order dated 04.12.2018 passed by a Division Bench of this Court, reads as under: “Mr. Thacker, learned advocate for the corporation submitted that the corporation has already passed resolution to grant benefit to Lalubha B. Jadeja and the proposal seeking approval of the State Government is already forwarded to the concerned department, however the corporation has not received any reply from the State Government. The corporation is directed to mention the said details by means of affidavit and place on record copy of the said resolution as well as copy of the proposal said to have been forwarded to the State Government. The affidavit by the corporation shall be served to the learned AGP and filed in the registry on or before 10.12.2018. Learned AGP shall file an affidavit, in response to the details and clarify the stage at which the proposal is pending and if the proposal is not granted then the reason for not accepting the said proposal shall be mentioned. Said affidavit shall be filed by learned AGP on or before 13.12.2018. Learned AGP shall file an affidavit, in response to the details and clarify the stage at which the proposal is pending and if the proposal is not granted then the reason for not accepting the said proposal shall be mentioned. Said affidavit shall be filed by learned AGP on or before 13.12.2018. Office to list the Appeals for further hearing on 14.12.2018.” 3.2 Our attention was also drawn to an order passed on 15.02.2021, wherein the Division Bench after having perused the affidavit of the State in compliance of the order dated 04.12.2018, passed the following order: “1. We have perused the Affidavit of the Under Secretary, Urban Development and Urban Housing Development, Gujarat – Mr. Ishvarbhai Abechandbhai Desai dated 13.12.2018 (Page 117 to Page 120 of the Paper Book), with regard to the deemed/notional benefits to the appellants is not proper and does not give any specific provisions under which the Resolution No.108 dated 15.05.1986 of the Standing Committee of the Municipal Corporation is said to be without their jurisdiction by the said Under Secretary nor the ground No.1 given in Paragraph 5 of the Affidavit, that since the matter is pending in this Court in the present Letters Patent Appeal, therefore the benefits could not be given to some of the Valuation Officers named in that paragraph. 2. In our opinion, this Affidavit does not give any explanation from the side of the State Government for taking a view contra to the view taken by the Employer, the Municipal Corporation in question. Though learned Senior Counsel Mr. Tanna who appears for the appellants submits that since the appellants - (Rasendru S. Parekh and Gagubha V. Danger) have since retired from service and even one of the respondents unfortunately expired (Mr. N.R. Agravat), therefore, the other person left out viz. Mr. Lalubha Jadeja can be given the similar notional benefits since he has, also already retired and his pension may accordingly be revised. 3. Learned Counsel Ms. Jirga Jhaveri represents the said respondent Lalubha Jadeja. She has also supported the said submission and urged that only this person was left out of the benefit accorded to other similarly situated persons. 4. Lalubha Jadeja can be given the similar notional benefits since he has, also already retired and his pension may accordingly be revised. 3. Learned Counsel Ms. Jirga Jhaveri represents the said respondent Lalubha Jadeja. She has also supported the said submission and urged that only this person was left out of the benefit accorded to other similarly situated persons. 4. Since in principle the Municipal Corporation may grant the same benefit to others who were granted as well as given to the petitioners earlier but the State does not seem to have taken the same stand alongwith the Corporation (Bhavnagar Municipal Corporation), therefore, the said Affidavit is not complete in our opinion. 5. Therefore, Mr. Jayneel Parikh learned Counsel appearing for the State is directed to produce a more detailed Affidavit of the said Officer or other Officer Incharge from the side of the State as to whether similar benefits can be extended to the persons who are prima-facie similarly situated and whether the notional benefit can be extended to them, with revision of pension benefits. 6. If the State does not agree to the aforesaid proposition, it has to give detailed and valid reasons for the same. 7. A period of three week is granted for the respondent State for the aforesaid purpose. 8. Put up after three weeks, on MARCH 10, 2021.” 3.3 Decisions were relied upon by Mr.Tanna, learned Senior Counsel, to submit that since the petitioners who were promoted, and whose promotions were under challenge and were subsequently set aside continued to work on the promoted post as a result of an interim order by this Court, there can be no decision now to recover the amounts on the principle of quantum meruit. He would rely on the following decisions: (1) In the case of Selvaraj Vs. Lt. Governor of Island, Port Blair & Ors., reported in (1998) 4 SCC 291 . (2) In the case of Arindam Chattopadhyay & Ors. Vs. State of West Bengal & Ors., reported in (2013) 4 SCC 152 . (3) In the case of S.P.Bhatt vs. Gujarat University., rendered in Misc. Civil Application- For Orders No. 1530 of 2004 in SCA No. 6846 of 1987, dated 26.06.2006. (4) In the case of Kakrapar Anumathak Karmachari Sangathan Vs. Nuclear Power Corporation of India Ltd., rendered in Special Civil Application No. 28416 of 2007 dated 06.09.2016. (3) In the case of S.P.Bhatt vs. Gujarat University., rendered in Misc. Civil Application- For Orders No. 1530 of 2004 in SCA No. 6846 of 1987, dated 26.06.2006. (4) In the case of Kakrapar Anumathak Karmachari Sangathan Vs. Nuclear Power Corporation of India Ltd., rendered in Special Civil Application No. 28416 of 2007 dated 06.09.2016. (5) In the case of The State of Gujarat & Ors Vs. Talsibhai Dhanjibhai Patel., rendered in Special Leave to Appeal(C) No. 1109 of 2022, by which the order passed in Letters Patent Appeal No.762 of 2020 is confirmed by the Hon’ble Supreme Court. 4. Ms.Vyoma Jhaveri, learned counsel appearing for the original petitioner, would submit that the original petitioner was admittedly qualified as he was a Commerce graduate. Admittedly, as pointed out in the affidavit in reply of the Corporation, the original petitioner, now the respondent No.1 was senior to the private appellants, and therefore, was entitled to be promoted. The learned Single Judge had held that the resolutions promoting the original respondent Nos. 2 and 3 - appellants herein were promoted without authority of law. In fact, it has now come on record through an affidavit of the State that the Corporation had no authority in law to promote the private respondents in the petition as the resolution was moved by the Standing Committee and not the General Body. She would submit that the original petitioner had retired on 30.04.2015 and therefore, by mere virtue of an interim order that operated pending the appeal, the original petitioner could not be denied the fruits of the litigation. 5. Mr.A.R.Thacker, learned counsel for the appellant- Bhavnagar Municipal Corporation, would also support the submissions of the learned Counsel for the private appellants. He would submit that at the relevant time, the promotions in the perception of the Corporation were justified. That it is true that a proposal subsequent to the judgment of the learned Single Judge was moved by the Corporation extending similar benefits to the original petitioner Lalubha Jadeja and the proposal was sent to the State. 6. We have perused the affidavit-in-reply filed by the State pursuant to the order passed by this Court in the year 2018. The affidavit of the State reads as under: “5. It is respectfully submitted that pursuant to the letter/proposal dated 22.02.2006, the State Government vide letter dated 27.06.2006 rejected the proposal of the Bhavnagar Municipal Corporation. 6. We have perused the affidavit-in-reply filed by the State pursuant to the order passed by this Court in the year 2018. The affidavit of the State reads as under: “5. It is respectfully submitted that pursuant to the letter/proposal dated 22.02.2006, the State Government vide letter dated 27.06.2006 rejected the proposal of the Bhavnagar Municipal Corporation. Annexed hereto and marked as Annexure R II a copy of the said letter. It is respectfully submitted that the rejection of the proposal was on the following grounds: (i) That, aforesaid fact is sub-judice and the Hon’ble Gujarat High Court by its order dated 15.09.2004 had rejected the order of promotion of Shree Dangar and Shree Parekh and in this circumstances, the resolution of standing committee No.371 dated 16.02.2005, General Board No. 35 dated 22.06.2005 and No.225 dated 19.09.2005 passed by the Standing Committee/General Board to reach to a compromise before the Hon’ble Gujarat High Court with respect to upholding the promotion of the Shree Dangar and Shree Parekh and further to give promotion to Shree N.R.Agravat and Shree Lalubha B. Jadeja as Valuation Officer from deemed date is not proper. (ii) That, the Resolution No. 108 dated 15.05.1986 passed by the Standing Committee is not in accordance with the rules, regulations and as stipulated under the Gujarat Provincial Municipal Corporation Act, 1949, as Standing Committee has passed the said resolution beyond its jurisdiction.” 6.1 Admittedly, the affidavit-in-reply would indicate that even in the opinion of the State, which is a superior authority in law in the hierarchial administrative set up, the promotions granted to the appellants by the resolution dated 15.05.1986 passed by the Standing Committee was not in accordance with the rules and regulations stipulated by the Gujarat Provincial Municipal Corporation Act. 6.2 Based on such affidavit, therefore, it is evident that the finding of the learned Single Judge that the promotions given to the private appellants herein was contrary to law and so without authority too stands substantiated. Pursuant to the order passed on 15.02.2021, the State once again filed an affidavit on the question of the proposal in the case of the original petitioner. Paras 6 to 11 of the affidavit read as under: “6. Pursuant to the order passed on 15.02.2021, the State once again filed an affidavit on the question of the proposal in the case of the original petitioner. Paras 6 to 11 of the affidavit read as under: “6. On 04.12.2018, the Corporation represented that it had resolved to grant benefits to Lalubha B Jadeja (original petitioner No.4 in SCA No. 2987 of 1988), for which a proposal seeking approval of the State Government was made. Upon such representation by the Corporation, the State Government was called upon to file an affidavit, informing the Court of the stage at which the proposal was pending. The Hon’ble Court, also directed the State Government to state reasons, if at all it rejected the said proposal. A copy of the order dated 04.12.2018 at Annexure R2. 7. The foundation for the representation made by the corporation (as is noted in the order dated 04.12.2018) was a communication dated 22.02.2006, wherein guidance was sought from the State Government in the Urban Development and Urban Housing Department, with respect to implementation of Resolution No.371 dated 16.02.2005 passed by Standing Committee, Resolution No.35 dated 22.06.2005 passed by General Board and Resolution No. 225 dated 19.09.2005 passed by Standing Committee. 8. The above communication, which was projected as a proposal for approval, neither had any foundation in law, nor was it in furtherance of any requirements prescribed in law. 9. However, and despite the above, guidance sought by the BMC vide its communication dated 22.02.2006 was immediately responded to by the Government on 27.06.2006. It may be noted that through the response dated 27.06.2006, it was clarified and conveyed to the BMC, that seeking legal opinion of the Government on whether a resolution of the BMC must be implemented or not was inappropriate. More particularly it was instructed that such communication from the BMC was unwarranted when the consequence of such resolution were capable of being viewed as being proximate to a matter which was sub judice before the Hon’ble High Court. 10. It is most respectfully submitted that this Hon’ble Court was apprised of the exchange of the above communications interse the BMC and the State Government vide affidavit dated 13.12.2018. 11. 10. It is most respectfully submitted that this Hon’ble Court was apprised of the exchange of the above communications interse the BMC and the State Government vide affidavit dated 13.12.2018. 11. The Hon’ble Court has thereafter through its order dated 15.02.2021 reflected upon the affidavit filed by the State Government.” 6.3 According to the State, the proposal to grant the benefits by a resolution and then send it to the State for approval was inappropriate as it would amount to subversion of process of law in adjudicating the appeal. In other words, what is evident is that though the State Government admittedly was of the opinion that the order of the learned Single Judge was right and that the promotions of the private respondents, who were the private appellants before us was not in consonance with the provisions of the Act, due to the pendency of the appeals, thought it is inappropriate to grant approval to the resolution recommending promotion and granting the benefits of the judgment of the learned Single Judge to the private respondent herein who too has retired without the fruits of the litigation. 7. We need to appreciate that the order of the learned Single Judge was passed in the year 2004. The learned Single Judge did hold that the original petitioner who is the original respondent No.1 herein was entitled to the promotion to the post of Valuation Officer and the private appellants herein, the respondents in the original petition, had been promoted to the post of Valuation Officers without any authority of law. What is also to be noted is that when the private respondents in the petition challenged this order of the learned Single Judge in appeal, the operation and implementation of the order was stayed. The direct consequence thereof was that the private respondents in the petition who had to be demoted in compliance of the order of the learned Single Judge could not be so demoted and continued to work on the post till they retired. 7.1 It is in light of the judgments cited by Shri Tanna, learned Senior Counsel appearing for the private appellants that if we were to upset and implement the decision of the learned Single Judge in the facts of this case, at this stage, it would be an exercise in futility. 7.1 It is in light of the judgments cited by Shri Tanna, learned Senior Counsel appearing for the private appellants that if we were to upset and implement the decision of the learned Single Judge in the facts of this case, at this stage, it would be an exercise in futility. Though we uphold the directions of the learned Single Judge in holding on the question of the law that the promotions not being in consonance with the provisions of the Gujarat Provincial Municipal Corporation Act, which stand is also supported in the affidavit of the State Government, in light of the subsequent events of the private respondents/private appellants herein having retired from service and they having worked on the promoted posts and with passage of time, upholding the order of the learned Single Judge, we hold that no consequential orders of recoveries be made now that the private appellants who were the private respondents have retired. 7.2 Then comes the question whether the original petitioner Lalubha Jadeja who is the private respondent in the appeals of the appellants should be made to suffer as a result of the pendency of the appeal when in fact he had succeeded before the learned Single Judge and even the State Government has considered it appropriate to hold that the Corporation had no authority in law to promote the private appellants herein. Even the original petitioner, Lalubha Jadeja, the private respondent in these appeals has retired in the year 2015 without the benefit of the judgment. The State Government has thought it fit not to approve the resolution of the Corporation recommending benefit of the judgment be given to Lalubha Jadeja, the original petitioner. 8. In the interest of justice, we direct as under: (i) The Corporation to re-fix the pay of Lalubha Jadeja, the private respondent in these appeals who was the original petitioner and grant him consequential benefits as if he was promoted to the post of Valuation Officer from the date of the judgment of the learned Single Judge and his pay be fixed accordingly. (ii) Since he retired in the year 2015, the consequential revision of pay based on his promotion to the post of Valuation Officer be considered for the revision in pension and pension be refixed accordingly. (ii) Since he retired in the year 2015, the consequential revision of pay based on his promotion to the post of Valuation Officer be considered for the revision in pension and pension be refixed accordingly. (iii) By virtue of Lalubha Jadeja, private respondent being promoted as a Valuation Officer from the date of the judgment of the learned Single Judge, private respondent No.1 shall be given the notional benefits of pay on the post of Valuation Officer from the date of the judgment of the learned Single Judge till he retired. His pension be revised accordingly. No arrears of pay be given to him, but his pension be re-fixed on the basis of he having retired as a Valuation Officer pursuant to the decision of the learned Single Judge. (iv) The State also having found that the Corporation had no authority to act in promoting the private appellants herein, would substantiate the findings of the learned Single Judge that Shri Lalubha Jadeja was in fact wrongly deprived of his promotion. (v) No consequential orders of recoveries be made now that the private appellants who were the private respondents have retired. (vi) The financial burden that will entail as a result of the exercise of working out notional benefits of pay from the date of the judgment of the learned Single Judge by which we hold that the original petitioner/the private respondent is entitled to promotion and the consequential revision of pension based on such promotion, albeit without arrears, shall entirely be borne by the Corporation as it was the exercise of the Corporation in granting such a benefit to the private appellants which was found to be without authority of law. 9. Appeals are accordingly disposed of, with the aforesaid directions. The appellant Bhavnagar Municipal Corporation in Letters Patent Appeals No. 2581 and 2582 of 2004 shall see that in light of the order passed by us, the original petitioner, Lalubha Bahadursinh Jadeja, the private respondent in these appeals is given the benefit of this judgment by revising his pension based on the notional pay fixation as a Valuation Officer within a period of eight weeks from the date of receipt of copy of this order.