1. Surat Municipal Corporation is a local self Government and Urban local body under the constitution provision of article 243. Therefore it is state under the article-12 of the constitution of India.
2. As per the provisions of B.P.M.C Act 1949 under section 45, provision is made for municipal officer & servant & their appointment & their service. Under section 45(2) Corporation may from time to time at the approval of State Govt. create an appointment of Dy,Municipal Commissioner or Asst. Municipal Commissioner. Provision also says that “Corporation may appoint a fit person or fit persons to such appointments.
3. Method of appointment as provided under Chapter-3 of Annexure-A of the B.P.M.C. Act 1949 provides “No person shall be appointed to any of the post. The power of appointment to which vest in the corporation unless he possesses the qualification prescribed in this behalf under Rule-3.
4. Rule-3 categorically says that such qualifications will be in the approval of the State Govt. who may in granting such approval such modification in or addition to the qualification prescribed by the Corporation as it deems fit.
5. Powers to make such rules are given to the Corporation under section 457 (3) of the said Act which are subject to section 454 of the said Act. It also provides that power to make, add to, alter or rescind any rule under section 454 shall be subject to the sanction of the State Govt. which further provides under section 455(2) that all rules made under section 454 shall be finally published in official gazette and shall there upon have effect as narrated in this act.
6. As per the above narrated provisions Surat Municipal Corporation had prescribed the qualifications for the post of Dy.Commissioner and Asst. Commissioner vide General Board Resolution No.579/08 dtd.29/8/08 . By said resolution Corporation of Surat had created 3 posts of Dy.Commissioner and 8 posts of Asst. Municipal Commissioner, apart from 1 post of Dy.Commissioner to be filled on deputation. In response to S.M.C.'s such proposal, State of Gujarat - Urban Ministry had sanctioned all posts of Dy.Commissioner and Asst. Commissioner proposed by S.M.C. but invoking powers of State Govt. under Rule Chapter-3 of Schedule-A of the said act accompanied with the provisions of Section-455 (1) modified and altered the qualification of both the posts by making law graduation mandatory apart from qualifications proposed and sanctioned by Surat Municipal Corpn. General Board vide its resolution No dtd. 4/1/10.
7. Subsequently under provision 45 accompanied with provision of Chapter-3 of Schedule-A all the posts were to be filled by the Corporation. Corporation had invited applications vide advertisement dtd.29.12.08 but no actions were initiated to recruit a fit person on the sanctioned posts until now.
8. Under provision 45(6) in default of an appointment being made by the Corporation under sub-sec. (5) State Govt. may appoint a fit person to fill the vacancy but the same has not been done until now.
9. Mean while as per the local media report has been came to the notice that repeated efforts were made by Municipal Commissioner and not by the Corporation of Surat to alter the recruitment rules and qualifications approved by the State of Gujarat vide its Resolution dtd. 4.1.10 especially for the post of Dy.Municipal Commissioner, but fortunately State of Gujarat till date remained firm to stick the qualifications approved by State.
10. Mean while another development came in the form of up gradation of existing 2 posts of Asst. Municipal Commissioner (F) and Asst. Municipal Commissioner to upgrade it as Deputy Municipal Commissioner, which was in response to Corporation's proposal to upgrade both the posts way back in 2005 as per kwowledge available from sources. On up gradation of the post by State under section 45(2) of B.P.M.C. Act it becomes incumbent on the part of S.M.C. to fill both the posts following the procedure laid down under section 45 (1) to (7) along with provisions of rule under chapter-3 of Schedule-A. But no such procedure has been initiated. Rather both directly appointed as Deputy Municipal Commissioners which itself if challenged may be proved ultra virus act, In the case of any appointment made by other than appointing authority i.e. general board.
11. Even if appointment is to be made of a fit person on the upgraded post procedure of the regular recruitment, specifically provided under Rule-2 of Chapter-3 of the B.P.M.C. Act by mode of chapter proviso need to be scrupulously followed. Thus Proposal must be moved to the General Board who is a appointing authority for making such appointment amongst fit persons possessing required qualifications as per the Section 457 and as sanctioned by the State Govt. under section 455.
12. If look at existing provisions as stated in Para 11 Law Graduation is mandatory though one of them is being appointed as Deputy Municipal Commissioner who is not possessing the degree of law graduation till date. Thus both the deputy municipal commissioners appointed cant be said without force of law? If it is so, tantamount to revocation of such appointment ab-intio.
13. It is also pertinent to note that the invited applications to recruit the posts of Dy. Municipal Commissioner & Asst.Municipal Commissioners are still pending as per knowledge which are prior to up gradation of posts, though without processing earlier applications, cant' be said illegal appointment to two persons on two up graded posts of Dy. Municipal Commissioners? which is later development. If it is such rule of first in, first out is also not followed here.
14. It has also been noticed that out of sanctioned various posts of Dy. Municipal Commissioner, Asst. Municipal Commissioner, Addl. City Engineer etc. efforts were made to fill up post of Addl. City Engineers in the year 2010 for 4 posts while rest of the vacant posts, charge were given to 3 Junior Officers who were not in the list of scrutiny for selection of posts as per available informationas.
15. It is also pertinent that as seems from entire detils deliberately no such move initiated regarding posts of Dy. Municipal Commissioner & Asst. Municipal Commissioners. Also no efforts to fill the post of ARO for which law graduation is compulsory. Rather than filling the posts it is preferred to give charges beyond sanctioned schedule posts to the officers who are not possessing minimum recruitment qualifications prescribed for the posts.
16. Looking to all the facts narrated above does not it appears clear case of quo- warranto writ petition on following grounds?
(1) Given appointments to two persons on the posts of Dy. Municipal Commissioners without following due procedure is itself ultra virus, arbitrary, capricious, illegal and void ab- intio
(2) Posts are upgraded but if State of Gujarat has not promoted two persons holding the post of Asst. Municipal Commissioner. than it can be said arbitrary and illegal.
(3) General Board is appointing authority. So in case of appointment by other than it prima fasci it may be ultra virus. Does not it It appears from entire exercise that if it is so, it is broad day light assassination of democratic decentralization? treating Surat Municipal Corporation as fiefdom?
(4) Does it not seems that it is an intentional effort to accommodate unqualified, unfit Jr. Officers on the higher post to serve vested interest?
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