Om Prakash Leela Vs. State of Rajasthan and ors. - Court Judgment

Tatia, J.

1. Heard learned counsel for the parties.

2. Learned counsel for the respondents has raised preliminary objection that the impugned order Ex.P.10 dated 26.2.2003 by which petitioner's transfer order dated 20.2.2003 was cancelled can be challenged by filing appeal before the Rajasthan Civil Services Appellate Tribunal and, therefore, when the statutory alternate remedy is available then the writ petition of the petitioner is not maintainable and here in this case, there exists no reason for exercising discretion to entertain the writ petition of the petitioner and there appears to be no reason for bye passing the statutory remedy.

3. Learned counsel for the petitioner vehemently submitted that petitioner, who was initially appointed on the post of Overseer was appointed by the Municipal Board, who is the competent authority to appoint the Overseer in the Municipal Board. The Section 308 of the Rajasthan Municipalities Act, 1959 also provides for appointment of engineers and the petitioner is an engineer. It is also submitted that in view of Sub-section (4) and (5) of Section 307 of the Act of 1959, it is also clear that the Municipal Board or Council, as the case may be, may take disciplinary action against the employees like petitioner. Learned counsel for the petitioner also submitted that there are provisions for having the municipal service in the Act and Rajasthan Municipal Service Rules, 1963, which have been framed by exercising powers under Sub-section 1 and Clause (t) of Sub-section (2) of Section 297 r/w Sections, 299, 302, 304, 305, Sub-section (2) of Section 306, 307 and 308 of the Rajasthan Municipalities Act. There is another set of Rules known as Rajasthan Municipal (Sub-ordinate and Ministerial Service) Rules, 1963. Learned counsel for the petitioner further submitted that the Pension Rules are framed under the Act of 1959, which also provides that the employees will be governed by the Pension Rules of 1989 framed under the Act of 1959. Learned counsel for the petitioner also submitted that the petitioner is not the Government servant and not covered in the definition of the Government servant given in Sub-clause (c) of Section 2 of Rajasthan Civil Service (Service Matters Appellate Tribunal) Act, 1976.

4. Sum and substance of the submission of learned counsel for the petitioner is that since the petitioner is not the Government servant as defined in Sub-clause (c) Section 2 of the Act of 1976 and since the petitioner is not the member of civil service nor holding the civil post, therefore, he cannot challenge the impugned order by filing appeal under the Act of 1976.

5. Learned counsel for the respondent relied upon several judgments after referring various provisions of the Act including Section 308, which provides that the State Government may appoint a health officer, a municipal engineer, a revenue officer or any other officer for the performance in a municipality, of such special or technical duties under the Act of 1959. Sub-section (4) of Section 307 of the Act of 1959 specifically provides that no disciplinary action can be taken by the Municipal Board or Council, as the case may be, of dismissal or removal against the officer appointed under Section 308 of the Act, which clearly means that the engineer, who is appointed as provided under Section 308 of the Act of 1959, is a Government servant holding a civil service and the Municipal Board has no authority to appoint the Asstt. Engineer.

6. Learned counsel for the respondent further vehemently submitted that even a person, who is appointed in the local body and the local body is discharging the functions under the supervision and substantial control of the State then those persons are holding the post of civil service. It is also submitted that it is different thing whether the employee is working in the Government Department or working in the local body, which will not make difference. Learned counsel for the respondent relied upon the judgment of this court reported in 1981 WLN 523 (1), wherein in detail the entire aspect of the matter has been considered, though with respect to a different service, but almost all analogous provisions are available in the Rajasthan Municipalities Act as well as in the Rules framed thereunder. It is also submitted by learned counsel for the respondent that in view of the judgments reported in (i) 1995 (4) SCC 8 (2), (ii) AIR 1984 SC 161 (3), (iii) AIR 1981 SC 53 (4), and (iv) 1989 (2) SLR 594 (5), the petitioner cannot be said to be holding a post otherwise then a post of the Government servant or it can be said that the petitioner is not holding the post of civil service.

7. I considered the rival submissions and perused the various Rules also. The Sub-clause (1) of Rule 26 of the Rules of 1963 provides that appointment of engineer of all municipalities shall be made by the Government unless power of appointment in respect of any or all posts are delegated to some other authority. Learned counsel for the respondent admitted that the appointment to the promotional post of the petitioner was given by the State Government, which is provided under Rule 25 of the Rules of 1963. The Section 308 r/w Sub-section (4) and (5) of Section 307 of the Act of 1959 makes it clear that the petitioner cannot be removed or dismissed from service by the Municipal Board or Council, as the case may be, Therefore, in view of the above facts that the petitioner was, admittedly, given appointment by the State Government on the post of Asstt. Engineer, which is permissible under law and can be removed from service only by the State Government, therefore, it cannot be said that the petitioner is not falling in the definition of Government servant given in Sub-clause (c) of Section 2 of the Act of 1976. It is also relevant to mention here that the facts, which were considered in the judgment reported in 1981 WLN 523 (supra) and the Division Bench judgment of this court and in view of the reasonings given in the judgments of the Hon'ble Supreme Court reported in AIR 1984 SC 161 and AIR 1981 SC 53, it can be safely held that the petitioner is holding the civil post through not appointed in the Government Department, but still is a Government Servant and has effective alternate remedy, which is available to the petitioner under the Act of 1976 before the Rajasthan Civil Services Appellate Tribunal.

8. Learned counsel for the respondent in these circumstances submitted that if this court comes to the conclusion that a remedy of appeal is available to the petitioner to challenge the impugned order by filing appeal before the Tribunal in view of the decision of this court reported in WLR 1991 (S) Raj. 136 it is clear that the impugned order is absolutely illegal and there is no dispute of fact involved in this writ petition, therefore, this writ petition may be dismissed only on the ground of availability of alternate remedy.

9. In the present writ petition notices were issued on 6.3.2003. The interim order was also granted on the same day. The respondents immediately in response to the notice, raised preliminary objection regarding maintainability of the writ petition and pressed it first without entering into the merit of the case. Therefore, while issuance of notice by this court itself cannot be a ground for entertaining the writ petition, particularly when, this court has taken a view that when effective alternate remedy is available then that must be exhausted first. The contention of learned counsel for the petitioner that the legality of the order can be seen by this court as the matter has been decided by this court in earlier writ petition is also available to the petitioner before the Service Appellate Tribunal. Therefore, I am not inclined to entertain the writ petition in view of the fact that there are large number of cases in which the Hon'ble Supreme Court held that the statutory remedy, if available, it should not be permitted to bye pass even in cases where no interim relief can be granted by the statutory authority hearing the appeal or revision. In these circumstances, the present writ petition of the petitioner is not maintainable and liable to be dismissed.

10. There is a force in the submission of learned counsel for the petitioner that since this court granted the interim order in view of the judgment given by this court in Narpat Singh Rajpurohit v. State of Rajasthan (6). Learned counsel for the respondent submits that once this court held that this court is not inclined to entertain the writ petition, this court cannot and should not grant any interim order even to the extent of facilitating a situation in which petitioner may approach the appropriate forum for redressal of his grievance. Learned counsel for the respondent relied upon the judgment of the Hon'ble Apex Court delivered in the case of Vice Chairman Kanpur Development Authority and Anr. v. Girja Shankar Misra and Ors. (7). The judgment relied upon by learned counsel for the respondent has no application to the facts of this case. The facts of the above referred case of Vice Chairman, Kanpur Development Authority itself reveal that a petition filed by the respondents in the Hon'ble High Court was dismissed by the High Court on merits. The State submitted review petition before the High Court and while rejecting the review petition, the High Court stayed the transfer of the respondents till his representation is decided by the State Government. The Hon'ble Supreme Court observed very specifically that High Court having not found any merit in the petition, dismissed the same and subsequently review petition was also dismissed, under such circumstances, it was erroneous exercise of power by the High Court when it stayed the order of transfer. Here in this case, the respondents raised a preliminary objection before that this Court, prima-facie found substance in the grounds raised by the petitioner and granted interim order relying upon earlier judgment of this court referred above. Learned counsel for the respondent submits that the judgment of this court referred above is per-incurrium as the relevant provisions of law were not considered. The respondent cannot object now on this ground because according to the respondent himself matter can be examined by the tribunal only. At this stage, judgment of this Court cannot be ignored.

11. In these circumstances itself it cannot be said that the controversy involved in this case deserves no consideration at all and it cannot be said that the rejection of this petition on the objection raised by the respondent itself can be treated as any decision on merit so as to deny the equitable interim relief so that petitioner may have some breathing time to avail the effective alternate remedy by filing appeal. It will be absolutely unjust if in a peculiar facts and circumstances of the case, the court will not make any arrangement to safeguard the rights of the parties looking to the facts of the case, and therefore, I while dismissing the writ petition on the ground of availability of alternate remedy extend the stay order granted on 6th March, 2003 for further period of one week so that petitioner may file an appeal before the tribunal and, thereafter, the matter will be decided by the tribunal uninfluenced by any observation made by this court in this judgment because this court has not examined the rival contentions of the parties even with respect to the effect of the judgment delivered in the case of Narpat Singh Rajpurohit v. State of Raj. (supra).

12. The writ petition of the petitioner is, therefore, dismissed with the direction and with extension of the stay for the period of seven days from today.