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1990 Supreme(Guj) 94
Gujarat High Court
Judgename :C.K.THAKKER, R.C.MANKAD
FIRE SERVICE STAFF ASSOCIATION - Appellant
Versus
AHMEDABAD MUNICIPAL CORPORATION - Respondent
First Appeal 226 of .
Decided On : 07/24/1990
Headnote:
Constitution of India – Article 133 134-A – Bombay Provincial Municipal Corporation Act 1949 – Manual II – Regulation 3(A) – Bombay Civil Services Rule – Rules 161 and 330 – Extension / Retention of Service – First Appeal – The controversy which we are called upon to resolve in this appeal is whether the decision of the Municipal Corporation respondent No. 1 herein to extend the services of respondent No 3 herein who was employed as Chief Officer (Fire Brigade) for a period of one year with effect from 1/05/1990 is legal – The main contention of the appellant is that the extension of one year granted to respondent No 3 is in violation of Regulation 3 (A) of the Regulations and that such extension would contravene the reservation policy of the Corporation – Held, Court therefore do not agree that the officer or servant who has retired from service cannot be retained in service under Regulation 3 (A) – There need not be continuity in service as urged on behalf of the appellant Continuity in service without break is not what is contemplated by Regulation 3 (A) – Therefore even if the relationship of employer and employee between the Corporation and its officer or servant has snapped to use the argument advanced on behalf of appellant the officer or servant can be employed in service and such employment would amount to retaining him in service within the meaning of Regulation 3 (A) – In Court’s opinion therefore mere fact that the resolution of the Corporation was passed about 11 days after respondent No 3 retired from service is of no consequence – The Corporation was empowered to retain respondent No 3 in service after his retirement within the meaning of Regulation 3 (A) – In any case when the Corporation decides to retain an officer or servant in service it would amount to granting or according previous sanction by the Corporation – In the light of the above discussion the argument that it was necessary for the Corporation to grant sanction before respondent No 3 retired from service on 30/04/1990 must therefore be rejected – The Corporation has however fully approved the decision of the Standing Committee which in clear terms has stated that it was in the interest of the Corporation and the city that it was necessary to extend the services of respondent No 3 – There is hardly any material to show that the decision of the Corporation is mala fide –Court is not inclined at this stage to consider whether or not the post of Chief Officer is to be filled up following the reservation policy and if such policy is applicable to the post in what manner the post should be filled up – For the reasons discussed above we broadly agree with the view taken by the learned Single Judge and see no reason to interfere with the order passed by him In the result this appeal fails and is dismissed – Appeal Dismissed
( 1 ) THE controversy which we are called upon to resolve in this appeal is whether the decision of the Ahmedabad Municipal Corporation (Corporation for short)- respondent No. 1 herein to extend the services of F E Dastoor (Dastoor for short)- respondent No 3 herein who was employed as Chief Officer (Fire Brigade) for a period of one year with effect from 1/05/1990 is legal
( 2 ) IN order to appreciate the rival contentions it is necessary to set out in detail the facts giving rise to this litigation Post of Chief Officer (Fire Brigade) (Chief Officer for short) is the highest post in the Fire Brigade of the Corporation Since arguments at length have been advanced on the question of reservation policy of the Corporation we may state that one S. M. Barucha was appointed as Chief Officer prior to 1/01/1972 S. M. Barucha attained the age of superannuation in December 1974 However his services were extended for a period of one year with effect from 1/01/1975 He was given further extension of one year with effect from 1/01/1976 On expiry of the period of extension of S. M. Barucha one U. U. Shaikh was appointed as Chief Officer with effect from 1/01/1977 U. U. Shaikh died in March 1977 and on his death Dastoor held charge of the post of Chief Officer it appears that there was controversy whether Dastur was qualified to be appointed as Chief Officer R C. Jadeja (Jadeja for short) respondent No. 4 herein who was a senior officer in the Fire Brigade of the Corporation claimed that he was the only officer qualified to be appointed to the post of Chief Officer on the other hand Dastoor who was senior to Jadeja claimed that he was senior to Jadeja and was qualified to be appointed as Chief Officer According to the Corporation both Dastoor and Jadeja were not qualified to be appointed as Chief Officer There was litigation in regard to the said controversy In the meantime it appears that the Corporation made attempts to directly recruit Chief Officer But these attempts failed as no suitable candidate was available The controversy arising out of rival claims made by Dastoor and Jadeja was sealed and the Corporation decided to amend the recruitment rules and to accommodate both Dastoor and Jadeja. A decision was taken to create a post of Additional Chief Officer. New recruitment rules for the posts of Chief Officer and Additional Chief Officer were framed on 20/08/1981 which were published in the Gazette of 27/08/1981 Qualifications prescribed for the posts of Chief Officer and Additional Chief Officer are same in these recruitment rules. It is not disputed that under the recruitment rules framed in 1981 both Dastoor and Jadeja are qualified to be appointed to the posts of Chief Officer and Additional Chief Officer Dastoor was appointed as Chief Officer and Jadeja as Additional Chief Officer with effect from 23/09/1981 Dastoor attained the age of superannuation in the month of April 1990 and under Regulation 3 (A) of the Regulations (Regulations for short) framed by the Standing Committee which are in Chapter IV of Manual II of the Bombay Provincial Municipal Corporation Act 1949 (Act for short) he was to retire from service after office hours on 30/04/1990 Regulation 3 (A) of the Regulations reads as follows :"3 (A) Except as provided in the following clause the date of compulsory retirement of a Municipal Officer or a servant other than an inferior servant and/or class IV (Four) servant shall be the last date (after office hours) of the month in which he attains the age of 58 years. He may be retained in service after such date of compulsory retirement if found necessary in the Municipal interests only with the previous sanction of the Corporation". It would thus appear that Municipal of Officer or an employee would retire on the last date (after office hours) of the month in which he attains the age of 58 years. He may however be retained in service after such date of compulsory retirement if found necessary
