Fire Service Staff Association Vs. Ahmedabad Municipal Corporation and ors. - Court Judgment

Excerpt:
- - are taken up for hearing today we find that it is better and convenient that special civil application no. ..we would like to post the main special civil application no. 6. special provisions are made for appointment of city engineer, medical officer of health, municipal chief auditor and municipal secretary as well as deputy municipal commissioner and transport manager in chapter iv of the act. in recruitment to various posts in municipal service so long as that quota is not satisfied, and to appoint only such candidates so long as the backlog of their vacancies is not filled up. 3a were satisfied and shri dastoor's services could be extended for a period of one year. the high court further observed that 'it must be established that the services of the retiring person are indispensable without whose services the administration of the department to which he is appointed cannot be properly and efficiently conducted or run. in this context, the learned single judge observed, inter alia, concept of public ground or public interest is not capable of a best definition for the simple reason that it may take colour from the context of the provisions and the facts and situation but that does not mean that it is a way of an orbitrary concept. the expression 'municipal interest' cannot be defined or explained mechanically like the term 'public ground'.the expression 'municipal interest' takes colour from requirement of a particular service rendered by a particular department of the municipal corporation. the interest of the fire brigade service will be best served by efficient handling of emergent situations, maintenance of internal harmony and cordial public relations, adopting a human approach and taking economy measures, which may have, directly or indirectly, a combined effect on the minds of the corporators. dastoor as well as mr. this court has merely to see whether the authorities had satisfied themselves about the need to extend services of mr. anand as well as mr. the circumstances in which the corporation could pass the resolution only after 30th april, 1990, have been indicated hereinabove and it cannot be said that simply because the corporation had to pass the necessary resolution after obtaining permission of the court, that the requirement of obtaining 'previous sanction' was not satisfied. even otherwise the requirement of 'previous sanction' is satisfied in this case. dastoor's services suffers from mala fides, personally as well as legally. it is to be borne in mind that the constitution of standing committee as well as general body of the corporation has changed from time to time at the interval of every five years during last 13 years. however from these circumstances, it cannot be inferred that the resolutions passed by the standing committee as well as municipal corporation suffer from mala fides.c.v. jani, j.1. letters patent appeal no. 198 of 1990 and letters patent appeal no. 199 of 1990 both arise from an interim order passed by the learned single judge of this high court in special civil application no. 3140 of 1990. the division bench passed the following order inter alia. 'that when both this l.p.as. are taken up for hearing today we find that it is better and convenient that special civil application no. 3140 of 1990 itself is disposed of finally instead of hearing l.p.as. for admission.... we would like to post the main special civil application no. 3140 of 1990 and also the special civil application no. 3569 of 1990 filed by the respondent no. 4 in the l.p.as. which also pertains to the same question.... in view of this arrangement made, both the special civil applications are posted for final disposal before the learned single judge specially for the purpose of hearing these two special civil applications on 20th july, 1990'. this order was passed by the division bench on 12th july, 1990. however when both the matter were taken up for final hearing, after some arguments, mr. s. k. zaveri, learned counsel appearing for respondent no. 4 submitted that he would require some time upto thursday i.e., upto 26th july, 1990 for amending special civil application no. 3569 of 1990 and so it should not be taken up for hearing with special civil application no. 3140 of 1990. respective advocates therefore agreed to start hearing of special civil application no. 3140 of 1990 which is now being decided by me as a single judge.2. in spl. c. a. no. 3140 of 1990 filed by fire service staff association of ahmedabad municipal corporation, the main challenge is to the resolutions of the standing committee of ahmedabad municipal corporation and its general body for extending the term of service of the chief officer, fire brigade, for a term of one year after his retirement. other questions are raised incidentally.3. special civil application no. 3140 of 1990 was filed on 2-4-1990 by fire service staff association, ahmedabad municipal corporation, which is a registered trade union. respondent no. 1 is the ahmedabad municipal corporation. respondent no. 2 is the state of gujarat, and respondent no. 3 is shri f. e. dastoor who is added as a party by amendment on 24th april, 1990, is chief officer (fire brigade) whose terms of service is sought to be extended after the date of his superannuation i.e. 30-4-1990. respondent shri r. c. jadeja was also added as a party by amendment as a additional chief officer, whose claim is sought to be advocated by the petitioner-association also.4. in order to appropriate the rival contentions, it is necessary to refer to various legal provisions contained in bombay provincial municipal corporations act, 1949, hereinafter referred to as the act, and its regulations.5. sub-section (1) of section 4 of the act provides that:(1) the municipal authorities charged with carrying out the provisions of this act are for each city:(a) a corporation;(b) a standing committee;(c) a municipal commissioner;and, in the event of the corporation establishing or acquiring a transport undertaking;(d) a transport committee;(e) a transport manager.6. special provisions are made for appointment of city engineer, medical officer of health, municipal chief auditor and municipal secretary as well as deputy municipal commissioner and transport manager in chapter iv of the act. no separate provision is made for the appointment of a chief officer of the fire brigade. however in section 286 of the act, it is provided that:on the occasion of a fire the chief or other officer in charge of the fire-brigade may, subject to such orders as the commissioner may from time to time issue in this behalf, take the command of all municipal officers and servants present and of any other persons who voluntarily place their services at his disposal; and may on such occasions exercise all or any of the powers specified in the rules.7. section 465 of the act empowers the standing committee to frame regulations not in consistent with the act and the rules but in consonance with any resolution that may be passed by the corporation... (g) regulating the period of service of all the said officers and servants....8. such regulations have been framed by the standing committee and they are contained in manual ii of municipal corporation act. in chapter iv of this manual, a regulation no. 3(a) reads as under:regulation 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.9. the undisputed facts which give rise to the uncontroversy are that pursuant to the municipal commissioner's proposal, the standing committee unanimously passed resolution on 26th april, 1990 recommending extention of shri dastoor's services for a period of one year after his superannuation on 30th april, 1990, in view of the record of his meritorious service as a chief officer, in the interest of municipal corporation and the city of ahmedabad. as general body of the corporation had still to pass a resolution in that connection, the municipal commissioner passed a resultant order dated 30th april, 1990 empowering deputy municipal commissioner (administration) to hold charge of the post of chief officer with effect from 30th april, 1990, as the high court was seized of the matter. thereafter on 11th may, 1990, all the 127 members of the ahmedabad municipal corporation passed a resolution approving the standing committee's resolution regarding extention of shri dastoor's service.10. in the meantime, the petitioner association had approached the high court with certain prayers by filling special civil application no. 3140 of 1990 on 2nd april, 1990, and the learned single judge (coram : a. p. ravani, j.) of this high court had passed certain interim orders on 11-4-1990. 20-4-1990, 24-4-1990 and 30-4-1990 which will be adverted at the appropriate stages.11. in this petition, the petitioner-association has made the following prayers:(a) to treat the impugned resolution at annexure 'p' and the impugned resolution annexure 'b' as unconstitutional and in law, and to fill up the post of chief officer (fire brigade) from s.c/s.t. candidates in accordance with the reservation policy.(b) to fill up other post of deputy chief officer of fire brigade also from the s.c/s.t. candidates in accordance with the reservation policy.(c) to permanently restrain the respondent-corporation from filling up the post of chief officer and deputy chief officer of fire brigade by general class candidates and further restrain them from giving extension to the present incumbant until s.c/s.t. candidates attain the quota of their respective reservation for the said post; and(d) to grant any further and other relief deemed fit in the facts and circumstances of the case.12. the petitioner has averred that ahmedabad municipal corporation has passed several resolutions i.e., annexure 'a' dated 20-8-1971, annexure 'b' dated 12-3-1976, annexure 'd' dated 14-9-1977. annexure 'e' dated 16-9-1989 and annexure 'f' dated 16-9-1989 for giving priority to the candidates of s.c/s.t. in recruitment to various posts in municipal service so long as that quota is not satisfied, and to appoint only such candidates so long as the backlog of their vacancies is not filled up. it is petitioner's grievance that no effective steps have been taken to carry out this policy. the petitioner therefore, requested municipal corporation by its letter annexure 'g' dated 16-9-1989 to invite applications from scheduled caste and scheduled tribe candidates for filling up the vacancy of chief (fire brigade) as mr. dastoor the incumbent to the said post, was to retire on 30th april, 1990. the petitioner-association apprehended that there was a plan to give extension to shri dastoor who is a general class candidate in order to defeat the claim of the other s.c/s.t. candidates who have been working in the lower posts for many years, vacancies of chief officer and deputy chief officer have never gone to scheduled caste or scheduled tribe candidates, eventhough as per reservation policy 14% of posts is reserved for scheduled tribe candidates and 10% of posts is reserved for scheduled caste candidates. it is in this background that the petitioner-association has made aforesaid prayers.13. when the petition was placed before learned single judge (coram : a. p. ravani, j.) for admission on 16-4-1990, the following order was passed:notice pending admission returnable on 19-4-1990. meanwhile respondents are directed to maintain status quo as on today regarding appointment of chief officer, fire brigade.on 20-4-1990, ad interim relief was extended and the following order was passed:ad interim relief granted earlier to continue till 24-4-1990. s.o. to 23-4-1990.14. eventhough the interim order was directed against 'appointment of chief officer' and not against extension of service or against following procedural requirement of passing resolutions, the respondent-corporation sought the court's clarification to permit standing committee to take a decision regarding the extension of service of shri dastoor. so the learned single judge (coram : a. p. ravani, j.) passed the following order on 24-4-1990.heard the learned advocates mr. m. r. anand for the petitioner, mr. b. p. tanna appearing for respondent-corporation mr. a. h. mehta, appearing for f. e. dastoor and mr. baraiya appearing for mr. r. c. jadeja.in presence of learned advocates, the following order is passed:ad interim relief granted earlier is clarified to the effect that standing committee of respondent municipality will be at liberty to take decision in respect of extension of service of mr. f. e. dastoor-respondent herein. however the decision that may be taken shall not be implemented without the permission of the court. s. o. to 13-4-1990.15. thereafter, ad interim relief was continued from time to time.16. on 26-4-1990, the standing committee unanimously passed the impugned resolution annexure 'b' and the municipal corporation unanimously passed the other impugned resolution annexure 's' on 11-5-1990 for extension of shri dastoor's services. on 14-5-1990, the learned single judge (a. p. ravani, j.) heard the parties and directed respondent-municipal corporation not to implement and act upon the standing committee's resolution dated 26-4-1990 as approved by the corporation in its meeting dated 11-5-1990. this interim order came to be challenged by the aggrieved parties who filed l.p.a. no. 198 of 1990 and l.p.a. no. 199 of 1990 respectively; but the division bench directed the main petition to be disposed of finally peremptorily so that the same questions need not to be considered in l.p.as. or application for interim stay of the learned single judge order. in view of the resolutions passed by the standing committee and ahmedabad municipal corporation, the petitioner amended prayers in paragraph 13.17. in his affidavit-in-reply, shri randhva-deputy municipal commissioner (administration) pointed out that : (i) shri r. c. jadeja-respondent no. 4 belonging to scheduled caste is in the same grade of pay as mr. dastoor viz., rs. 1100/- to rs. 1600/- revised to rs. 3000/- to rs. 4500/- both holding class i posts : (ii) that it is the privilege of the appointing authority to extend the services of an employee of distinguishing ability and merits; (iii) that the petition is filed on account of personal grade of some bearers of the association; (iv) that shri dastoor and shri jadeja both were appointed in the same grade in the year 1981 as chief officer and additional chief officer respectively; (v) that as per roster annexure 'i' eventhough roster point for scheduled castes candidates comes only at sr. no. 4, shri jadeja was appointed in the year 1981; sr. no. 3 of the roster point which was actually meant for a general class employee.18. respondent no. 3-shri f. e. dastoor has supported the stand taken by the municipal corporation; while respondent no. 4 shri r. c. jadeja has supported the petitioner-association and contended that selection of shri dastoor as chief officer in 1981 was mala fide and illegal and that he was unqualified and unfit. he referred to comparative stages of progress made by shri dastoor and shri jadeja in municipal service and contended that eventhough he gets the same grade of pay as shri dastoor, he requires to be appointed as a chief officer.19. mr. m. r. anand, learned counsel appearing for the petitioner-association and shri s. k. zaveri, learned counsel appearing for respondent no. 4 have made the following three main submissions:(1) the decision taken by the municipal corporation to extend the services of shri dastoor after the material date of 30-4-1990 was ultra vires, null and void;(2) the resolution of the standing committee and the municipal corporation would even otherwise contravene the statutory regulation no. 3a of chapter iv of the manual; and(3) the resolution to extend shri dastoor's services was mala fide and violative of articles 14 and 16 of the constitution of india.20. so far as the first contention is concerned, shri s. k. zaveri, learned counsel appearing for respondent no. 4 relies on the judgment of the supreme court in state of assam and ors. v. padma ram borah : air1965sc473 wherein. their lordships held in the facts of the case, that the state government had no jurisdiction to extend the services of an employee after termination as it could not by unilateral action create a fresh contract of service. the supreme court was dealing with a situation in which the employee, padma ram was due to superannuate on january 1, 1961; the order of suspension was passed against him on december 22, 1960 and his service was extended beyond date of his superannuation. however on january 6, 1961, a second notification was issued extending his service 'for a period of three months from 1st january, 1961, till disposal of the departmental proceedings whichever is earlier'. as per this notification, the petitioner's services came to an end on 31st march, 1965, but the departmental proceedings were not concluded before that date. on may 9, 1961, the state government passed an order extending the petitioner's services for a period of three months. the petitioner therefore challenged the order by filing a writ petition in the high court of assam which allowed the petition and directed the government not to give effect to the order dated may 9, 1961. the state of assam filed an appeal against this order; the supreme court confirmed the judgment of the assam high court on the ground that the services of the employee-padma ram had come to an end on march 31, 1961, and the state government could not by unilateral action, create a fresh contract of service to take effect from april, 1961. their lordships in term approved the decision rendered by the privy council in r. t. rangachari v. secretary of state reported in 21. the present case rests on a different footing altogether. extension of an employee's services beyond the date of his superannuation required, the authorities mentioned in section 4 of the act to take same procedural steps. the municipal commissioner was required to submit a proposal to the standing committee, the standing committee was required to pass a resolution recommending shri dastoor's extension and ultimately the corporation was required to pass a resolution approving the committee's resolution; then only necessary order for extension could have been passed. in the present case, the petitioner-association filed the petition on 2-4-1990, in order to forestall extension of shri dastoor's services and obtained ex parte order of maintaining status quo 'as regards appointment of the chief officer, fire-brigade'. when interim order was placed for hearing the learned counsel for the corporation sought clarification and the court passed another order permitting the standing committee to take a decision in respect of extension of shri dastoor's services but also issued an interim injunction restraining the corporation from implementing such decision without permission of the court. on 30th april, 1990, the municipal commissioner passed an order empowering the deputy municipal commissioner (administration) to hold charge of the post of chief officer, fire brigade; and further ordered that 'shri f. e. dastoor may take the charge of the post of chief officer, fire brigade from the deputy municipal commissioner (administration) as soon as the permission is granted by the hon'ble high court'. on 11-5-1990, 127 members of the municipal corporation unanimously passed a resolution approving of the standing committee's resolution. thus it cannot be said that the process of extension which had to be halted because of the court's order was illegal and that the employer viz., municipal corporation wanted to create a fresh contract of service by unilateral action so as to prejudice the interests of the concerned employee. thus the ratio laid down by their lordships in padma ram's case does not apply to the facts of the present case. perhaps the picture might have been different, if the petition had not been filed on 2nd april, 1990, and interim orders had not been obtained. so it cannot be held that the decision taken by the corporation to extend the services of shri dastoor after the material date 30-4-1990 was ultra vires, null and void.22. now coming to the second contention regarding legality of the standing committee's and corporation resolutions in the context of regulation no. 3a, i find that the employer corporation has power to retain shri dastoor beyond the date of compulsory retirement as the corporation found his retention in service necessary in the municipal interest.23. in fact when the commissioner proposed shri dastoor's extension, he pointed out that (i) shri dastoor was appointed as special officer on 10-9-1957; promoted as division officer on 15-9-68 and acted as chief officer (in charge) with effect from 10-3-1977. he was appointed as a representative of the state of gujarat in fire advisory committee and he had rendered services to gandhinagar fire station also; (ii) his services were appreciated by the government of india; (iii) he was awarded president's award in 1983; mayor's silver medal, gold medals in 1965 and 1971; parsi youth silver medal in 1954; purani prize gold medal in 1987 and mayor's bronze medal in 1988 and parsi panchayat silver medal in 1989. he was also awarded several certificates regarding his successful and diligent services; (iv) shri dastoor had protected lives and properties of the people during communal riots even at the cost of his personal security without being daunted by restriction of time element. the commissioner therefore proposed extension of shri dastoor's services for a period of one year from 1-5-1990 in the interest of municipal corporation and ahmedabad city.24. the standing committee consisting of 12 members unanimously resolved that considering the meritorial of shri dastoor's service it was in public interest and in the interest of the municipal corporation to retain him in service. the municipal corporation consisting of 127 members approved of this resolution unanimously. in view of this resolution, all the requirements of regulation no. 3a were satisfied and shri dastoor's services could be extended for a period of one year.25. shri m. r. anand and shri s. k. zaveri, learned counsels appearing for the petitioner-association and respondent no. 4 respectively, however, submitted that the expression 'municipal interest' found in regulation 3a was akin to the expression 'public ground' appearing in rule 161 and rule 330 of the bombay civil services rules. the relevant portion of rule 161, b.c.s.r. reads as under:except as otherwise provided in the other clauses of this rule, the date of compulsory retirement of a government other than a class iv servant, is the date on which he attains the age of 58 years.(i) (deleted).(ii) deleted.(iii) he may be retained in service after the date of compulsory retirement only with the previous sanction of government on public grounds which must be recorded in writing....clause a of rule 330 of b.c.s.r. reads as under:a person, who is in receipt of a superannuation or retiring pension, shall not be re-employed or continue to be employed, in service paid from consolidated fund of india or of state or from a local fund, except on public grounds and in a purely temporary capacity.the learned advocates have relied on certain observations made in a judgment of division bench of bombay high court in dinkar sakharam's case 1980 maharashtra lj 331, and another judgment of a learned single judge (a. m. ahmadi, j., as he then was) in ranchhodbhai s. dalwadi v. gujarat agriculture university 1987 (1) glh 484 : 1987 (1) glr 297. in dinkar sakharam's case, when the additional clerk of the district court was ordered to be re-employed in the same cadre after his retirement under rule 330 of b.c.s.r., this order was challenged by other employees, and the division bench of the bombay high court observed that undoubtedly the power under the said rule is to be exercised in favour of an individual who has reached the age of superannuation or retired on pension, for his benefit. but such an appointment of an individual while exercising the powers under rule 330, must be for the benefit of public administration and keeping in view the efficiency in the administration or streamplining the administration of public departments. in other words, the services of a person, being so re-appointed, in exercise of the power under rule 330 of the bombay civil services rules, must be indispensable and that too for the efficient working of the administration of the concerned department. the high court further observed that 'it must be established that the services of the retiring person are indispensable without whose services the administration of the department to which he is appointed cannot be properly and efficiently conducted or run. it is then alone, it can be said that the re-employment of such a person is made on public grounds.' under the circumstances of the case, the order passed by the learned district judge re-employing the respondent was held to be satisfying the public ground.26. in the present, case, we are not concerned with re-employment which comes into effect after an efficient employee retires and the department suffers due to the void created by his retirement. this is the case in which the authorities found after continuous experience about shri dastoor's services in fire-brigade department for a number of years that it was necessary to retain him in service for a temporary period in municipal interest.27. in the case of ranchhodbhai s. dalwadi v. gujarat agriculture university 1987 (1) glh 484 : 1987 (1) glr 297; the petitioner r. s. dalwadi who was serving as a superintendent in the department of agriculture was deputed as a legal assistant in gujarat agriculture university. subsequently, the petitioner applied in response to an advertisement issued by the university for recruitment to the post of legal assistant on a long term basis. he was interviewed by the selection committee and on being found fit, a letter of appointment came to be issued. while applying for the post of legal assistant, the petitioner had referred to the possibility of liberalisation of pension rules after he could retire from government service. the petitioner therefore served a notice of retirement to the government and on expiry of the notice period the government was pleased to allow the petitioner to retire voluntarily from government service. the university considered the petitioner's appointment as fresh appointment and fixed his salary accordingly. however because of an audit objection, the university changed its stand and considered the petitioner's appointment as re-employment within the meaning of rule 45(1) of rules by which rule 330 of b.c.s.rs. came to be invoked. in this context, the learned single judge observed, inter alia, 'concept of public ground or public interest is not capable of a best definition for the simple reason that it may take colour from the context of the provisions and the facts and situation but that does not mean that it is a way of an orbitrary concept...circumstances must, therefore, exist which would make it virtually obligatory on the employer to re-employ a pensioner for short duration so that administration is not adversely affected. if the immediate arrangement cannot be made or if a person of a right stamp to meet the post is not readily available and the post cannot be kept vacant without adversely affecting administration, the employer may resort to re-employment in public interest. in such cases, if the post is not manned, it would create administrative problem which would adversely affect public interest. it is only in such cases that re-employment can be resorted to under rule 330 of the bombay civil service rules. in the context of the fact situation, the court held that petitioner was not re-employed in the post from which he retired. these observation were made by the learned single judge only in order to find out whether the petitioner in that case had been re-employed as alleged. as stated earlier, the question of retaining an employee in municipal interest would have to be considered from a different angle.28. the expression 'municipal interest' is nowhere defined or explained either in relevant laws or rules or in judicial pronouncements. the expression 'municipal interest' cannot be defined or explained mechanically like the term 'public ground'. the expression 'municipal interest' takes colour from requirement of a particular service rendered by a particular department of the municipal corporation. in this particular case, it is the service of the fire brigade whose interest is to be protected. the interest of the fire brigade service will be best served by efficient handling of emergent situations, maintenance of internal harmony and cordial public relations, adopting a human approach and taking economy measures, which may have, directly or indirectly, a combined effect on the minds of the corporators. that interest will have to be considered by the corporation before taking a decision regarding retention of an employee in service. it is contended on behalf of the petitioner that the commissioner pointed out only the meritorious record of shri dastoor at the time of submitting his proposal to the standing committee, but did not refer to meritorious record of shri jadeja, nor the municipal corporation had taken appropriate decision regarding extention of shri dastoor's services. it is to be noted here that before the commissioner's proposal was put before standing committee and before municipal corporation passed the unanimous resolution, the petitioner association had already approached the high court and had obtained interim orders against shri dastoor's extension. even the corporation had to seek liberty of the court for taking any decision in respect of extension. thus, so far as members of the standing committee and municipal corporation were considered, they were very much aware about the respective cases of shri dastoor and shri jadeja and also of their respective merits and de-merits. these members had opportunity to witness the services rendered by mr. dastoor as well as mr. jadeja. as a kind of tug of war had been going between the two high officers for the last several years, it cannot be said that members of the standing committee and the municipal corporation were not aware about the merits of mr. jadeja, when they passed the resolution to extend services of shri dastoor. it is also to be remembered that the resolution was not an act of a single individual, who may err. it was the result of a joint decision taken by all the 127 councillors. the powers of this court under article 226 of the constitution of india are limited. this court has merely to see whether the authorities had satisfied themselves about the need to extend services of mr. dastoor in municipal interest. this court cannot sit in appeal over the exercise of this power of democratic bodies who had considerable opportunity to come in contact with both and appreciate the services of the two high officers of fire brigade. this court would be exceeding its jurisdiction, if it would try to substitute its own judgment in order to subvert exercise of powers by local bodies by democratic procedure.29. mr. anand as well as mr. zaveri further submitted that shri dastoor can be retained in service only with the 'previous sanction of the corporation' as stipulated in resolution no. 3a. it is therefore submitted that the expression 'previous sanction of the corporation' indicates that the corporation should have passed a resolution before the date of shri dastoor's superannuation. it is obvious that nobody's service can be extended unless the resolution is passed by the municipal corporation who is the appointing authority. the circumstances in which the corporation could pass the resolution only after 30th april, 1990, have been indicated hereinabove and it cannot be said that simply because the corporation had to pass the necessary resolution after obtaining permission of the court, that the requirement of obtaining 'previous sanction' was not satisfied. it is obvious that the corporation was unable to pass the resolution before 30th april, 1990, because of the interim orders obtained by the petitioner-association. now the petitioner cannot take advantage of that situation and take up a stand that 'previous sanction of the corporation' had not been obtained. even otherwise the requirement of 'previous sanction' is satisfied in this case. thus the expression is to be considered not in the context of the resolution but in the context of the actual order of retaining which may be passed.30. so far as the third contention is concerned, mr. m.r. anand for the petitioner-association has fairly conceded that the question of mr. jadeja's promotion does not arise in this case, as he is already placed in the same grade of pay in class i as shri dastoor since the year 1981. shri dastoor was appointed in municipal corporation as station officer on 10-9-1956, and shri jadeja was also appointed as a station officer on 2-3-1960 and shri dastoor is older than shri jadeja by four years. we are concerned with the question of extension of shri dastoor's service after april 30, 1990, and not with his initial appointment in the year 1981. it is to be borne in mind that as per the consolidated resolution dated 22nd april, 1983, issued by the government of gujarat regarding reservation of posts in government service for scheduled castes scheduled tribes, backward classes and handicapped persons, the roster is to be operated in case of promotion from class iii to class ii and from class ii to class i. so far as the present case is concerned, both shri dastoor and shri jadeja are in class i and so the question of applying the roster between them does not arise. it is further provided that if the candidates belonging to scheduled castes, scheduled tribes or backward classes are not available, their vacancies are to be carried forward for three recruitments but during that period the post is to be filled in by a general candidate. it is also provided in this resolution that the 100-points roster shown in the schedule would have to be operated from 1-1-1976. thus, the policy of making reservation for scheduled castes, scheduled tribes and backward classes as reflected in article 16(4) of the constitution of india is given a concrete shape in the schedule annexed to the government resolution dated 22nd april, 1983. as per the schedule first point of roster would go to schedule tribe candidates, the second and third point would go to general candidates, and the fourth would go to a scheduled caste candidate. the municipal corporation had produced the roster at annexure 'i' which shows that in 1977, the first point reserved for scheduled tribe candidate had to be offered to shri u. u. sheth, as no candidate of scheduled tribe was available. sheth expired within few months and mr. dastoor was placed in charge of office. he was substantively appointed as a chief officer only in year 1981 at the second point; mr. jadeja belonging to scheduled castes was simultaneously appointed as additional chief officer, eventhough he can be placed at the fourth point only. mr. tanna complains that at the most an employee of general category can make grievance against mr. jadeja's posting at the third point in the year 1981. thus, simply because no candidate of scheduled caste has been so far appointed as chief officer, we cannot jump to the conclusion that shri dastoor's extension is against the provision regarding reservation contained in article 16(4) of the constitution of india. it cannot be said that roster is not even begun to operate for nearly 19 years. the corporation itself has passed a number of resolutions for implementing reservation policy and it will be implemented whenever suitable occasion arises and mr. jadeja who has still four years to serve in the corporation will get his due place at the appropriate time. at present, he is not at disadvantage and he gets the same benefit as of mr. dastoor. an attempt was also made to show that the decision to extend mr. dastoor's services suffers from mala fides, personally as well as legally. it is to be borne in mind that the constitution of standing committee as well as general body of the corporation has changed from time to time at the interval of every five years during last 13 years. it is also pertinent to note that the decision to extend shri dastoor's service was taken by all the 127 members unanimously under the leadership of the mayor who himself belonged to scheduled castes. mr. dastoor is not a caste hindu and he bears no prejudice towards scheduled castes. so the allegation about mala fides either personal or legal therefore has no substance.31. it was argued that the very fact that till the last moment no steps were taken to bring the resolutions for extention before the corporation and the merits of shri jadeja were also not brought to the notice of the members of the corporation, was sufficient to show that the decision to extend shri dastoor's services was not bona fide. it was further urged that the earlier resolutions of the corporation regarding reservation of posts were not brought to the notice of the corporation. however from these circumstances, it cannot be inferred that the resolutions passed by the standing committee as well as municipal corporation suffer from mala fides. as indicated above, the members of the public body were very much aware about the controversy going on between two officers, particularly in view of the interim orders obtained by the petitioner-association in this very petition. having watched their performance for the last several years, they were also aware about merits and de-merits of the concerned officers and they took a decision to retain shri dastoor in service as chief officer for a temporary period in the interest of fire-brigade service of the municipal corporation. in view of the subjective satisfaction of all the members of the municipal corporation regarding necessity of retaining shri dastoor in service as chief officer in municipal corporation which is not vitiated by ignorance or non-application of mind, i had to reject the submission about mala fides also.32. as a result, the prayers contained in clauses (a) and (b) cannot be granted. the prayer for filling of the post of chief officer from s.c./ s.t. candidates and to fill up of the other posts of deputy chief officer from s.c/s.t. candidates cannot be granted as they are too general in terms, and the corporation is going to implement its own reservation policy. the prayer contained in clause (c) also cannot be granted to all the members of the standing committee and municipal corporation headed by the scheduled caste mayor had passed the impugned resolution of extention unanimously in bona fide exercise of their powers under regulations no. 3a in municipal interest after taking into consideration the relevant facts.rule is therefore discharged with no order as to costs. interim relief vacated;