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In the High Court of Bombay at Aurangabad
S.V. GANGAPURWALA, J.
Ishwar S/o Vithalrao Mohite
Versus
State of Maharashtra Through the Secretary Food and Civil Supply Department & Others
Writ Petition No. 4977 of 2012
Decided on : 31-08-2012
Where petitioner, Police Patil Given licence to non-retail kerosene shop in consonance and conformity with Rule 8 of Rules 1968 therefore petitioner not to be deprived of his right to run business. - The Government Resolution dated 13.10.2006 is issued keeping in view Rule 16 of the Maharashtra Civil Services [Conduct] Rules, 1979. As per Rule 16 of the Conduct Rules of 1979, the Government servant is prohibited from engaging directly or indirectly in any trade or business or from undertaking any other employment except with the prior sanction of the Government.
Rule 16 of the Conduct Rules of 1979 will have to be read coherently with sub-rule (3) of Rule 1. The provisions of sub- rule (3) of Rule 1 succinctly and without any reservation exempts the operation of Rule 16 to the persons appointed as Police Patil under the provisions of the Act of 1967. When the statute or the rules specifically exempt the operation of particular statute, the same will have to be strictly construed, one can not import the provision, which the Legislature in its wisdom has specifically exempted from the operation. The Government servants, to whom Rule 16 of the Conduct Rules, 1979 apply, would only be deemed to be covered by the Government Resolution dated 13.10.2006. The very prelude to the said Government Resolution is clear, unambiguous. It is restricted to the Government servants covered by Rule 16 of the Conduct Rules, 1979.
1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing.
2. The petitioner, is a Police Patil and runs a retail kerosene shop at village Ghodki, Tq. Washi, Dist. Osmanabad since the year 1997.
3. The respondent no. 3 issued show cause notice to the petitioner calling explanation from the petitioner as to why the kerosene dealership should not be cancelled as he was appointed as Police Patil. The said notice was issued relying on the Govt. Resolution dated 13/10/2006. The respondent no. 3 thereafter cancelled the kerosene retail licence of the petitioner on the count that petitioner being a Police Patil is a Govt. servant and not entitled for licence of kerosene retail shop.
4. The petitioner being aggrieved by order of respondent no. 3 filed Appeal before the Commissioner [Supply]. The Commissioner [Supply] dismissed the said Appeal. The petitioner preferred Revision before the Hon’ble Minister. The Hon’ble Minister dismissed the Revision. Aggrieved thereby the present Writ Petition is filed.
5. Mr. Choudhari, learned counsel for the petitioner submits that the Govt. Resolution dated 13/10/2006 has been mis-read by the authorities. The said Govt. Resolution does not bar the Police Patil from running the business in the said village. The Govt. Resolution dated 13/10/2006 only lays down that the kerosene licence can not be in the name of Govt. servant. According to the learned counsel, the said Govt. Resolution is introduced pursuant to Rule 16 of the Maharashtra Civil Services [Discipline] Rules, 1979 [For short, ‘ Rules of 1979’] . Police Patil is not covered within said rule.
6. The learned counsel further contends that the post of Police Patil is a honorary post and he receives the honorarium and not salary. The learned counsel further contends that as per Rule 8 of the Maharashtra Village Police Patil [Recruitment, Pay, Allowances and other conditions of service] Rules, 1968 [For short, ‘ Rules of 1968 ’], the Police Patil can engage in local business in the village. The kerosene shop is run by the petitioner in the same village of which he is Police Patil.
7. The learned counsel further contends that Rule 16 of the Maharashtra Civil Services [Conduct] Rules, 1979 do not apply to the persons appointed as Police Patil under the Maharashtra Village Police Patil Act, 1967, so also sub rule (3) of Rule 1 of the Rules of 1979.
8. In view of that, the learned counsel contends that the impugned order being illegal, deserves to be set aside.
9. Mr. B.V. Wagh, learned A.G.P. supports the order and submits that the said Govt. Resolution has been issued in larger public interest. If the Police Patil carries on retail kerosene business, that would be in conflict with his performance of duties and as such the said Govt. Resolution has been issued. According to the learned A.G.P., all the facets of the matter are properly considered by the authorities.
10. With the assistance of the learned counsel, I have gone through the impugned
Orders.
11. Before adverting to the arguments canvassed by the learned counsel for the parties, it would be appropriate to refer to the relevant rules for deciding the present matter.
Rules 1,2,3,4 and 16 of the Maharashtra Civil Services [Conduct] Rules, 1979 reads as under:
“1. Short title, application and saving –
(1) These Rules may be called the Maharashtra Civil Services [Conduct] Rules, 1979.
(2) They shall come into force on the 12th day of July, 1979.
(3) Except as otherwise provided by or under these rules, these rules (and also any rules and orders in relation to matters covered by these rules duly approved by Government from time to time and not inconsistent with the provisions of these rules) apply to all persons appointed to civil services and posts in connection with the affairs of the State of Maharashtra. Provided that, only Rules 2, 3, 5, 6, 11, 15, 19, 29 and 30 shall apply to persons appointed as Polic
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