The petitioner has taken out this petition with following prayers;
(A) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction may kindly be issued directing the respondent, its officers, agents and servants to give similar treatment to the petitioner as is given to co-petitioners who filed Special Civil Application No.892/88.
(B) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction may kindly be issued directing the respondent, its officers, agents and servants to implement and give effect to the Resolution dated 28th January 2004 and make the petitioner permanent with all consequential and other benefits.
(C) Pending admission, hearing and final disposal of this petition, an interim injunction may kindly be granted restraining the respondent-Municipality from terminating the services of the petitioner.
(D) Pass such other and further orders as may deem fit in the interest of justice.
By way of amendment the following further prayer is made.
"6.(BB) Be pleased to quash and set aside the order impugned @ Annexure:R/3- dated 01.09.2004 passed by respondent no.2 being illegal and in gross violation of principles of natural justice, in the interest of justice."
Thus, in short the petitioner has agitated grievances with regard to non according of equal benefits which have been given to the fellow workmen who were fortunate to fight battle and litigation for their rights and status on account of various financial handicaps. The petitioner was not one of the litigants and, therefore, when the result came as a successful litigation, petitioner was not accorded the benefits by the respondent Municipality which was sought to be rectified by Resolution No.134 dated 28.01.2004 and petitioner was also recommended for appropriate scale and regularization in light of the same benefit being given to other employees who were part of the earlier litigation. The said resolution being Resolution No. 134 dated 28.01.2004 was subject matter of review by the District Collector in exercise of power under Section 258 of the Gujarat Municipality Act, 1963 and vide order dated 01.09.2004, the District Collector revoked the same, as it is stated hereinabove, by way of amendment even this order is now impugned in this petition.
Learned counsel for the petitioner contended that in light of the decision in case of Naynaben shantilal Pandya Vs. State of Gujarat & Ors., reported in 2006 (3) GLR 2034 the resolution before being quashed by the Collector, the learned Collector was under obligation to here the beneficiary of the resolution, as no notice or hearing was given and afforded to the petitioner. The resultant order dated 01.09.2004 is vitiated. Learned counsel for the petitioner also relied upon the decision in case of Maniben Navabhai & Ors. Vs. State of Gujarat & Ors., reported in 2000 (4) GCD 3222 (Guj).
Learned counsel for the Municipality submitted that the Municipality is not entitled to act on its own, as it is to act under the instructions of Director of Municipality and though the Municipality has passed resolution being Resolution No.134 as well as Resolution No.180, the Municipality cannot go contrary to and against the directions and instructions issued by the State and its agency in the form of instructions from Directorate of Municipalities and even in that matter Collector of the District. However, he could not dispute the proposition of law that if Municipality's resolution is taken in review by the Collector, then beneficiary under the resolution are required to be heard by giving them appropriate opportunity. The law in this behalf has now been quite settled and, therefore, it need not be elaborately discussed here.
Learned AGP, Ms. Pathak invited this Court's attention to the averments made in the affidavit-in-reply and contended that the resolution dated 28.01.2004 is of course quashed and set aside by the Collector in exercise of power under Section 258 of the Gujarat Municipality Act, but the Resolution No.180 dated 04.12.2004 is not quashed, but is expressly made subject to approval from the competent authority, as could be seen from the order dated 31.05.2005. This order was passed after taking into consideration all the relevant materials and facts, however, she could not establish that even while passing order on 31.05.2005, whether any opportunity was afforded to the beneficiary namely the petitioner.
This Court is of the considered view that the petition is required to be disposed of by issuing appropriate direction to the Collector i.e. respondent no.2, as admittedly there was no opportunity afforded to the petitioner and the resolution dated 28.01.2004 was in fact passed in favour of the petitioner who was one of the beneficiary in the resolution. Therefore, when such a resolution was undertaken for review in exercise of power conferred upon Collector under Section 258 of the Gujarat Municipality Act, then the affected party or party likely to be affected are required to be heard and reasonable opportunity was required to be given to the party. In the instant case, as it is now established beyond doubt that no opportunity whatsoever was ever given to the petitioner, the order dated 01.09.2004 as well as 31.05.2005, though cannot be sustained in eye of law. Though, the Court hasten to add here that the challenge to the order dated 31.05.2005 is not there in the petition at all, but that order shall not in any way preclude the Collector in passing appropriate order after affording opportunity of hearing to the petitioner upon Resolution No. 134 dated 28.01.2004, in my view the order dated 01.09.2004 is required to be quashed and set aside only on this limited ground and it is hereby quashed and set aside. The resolution thereunder would be reviving Resolution No. 134 dated 28.01.2004 and in case if the Collector is inclined to take it into review under Section 258 of the Gujarat Municipality Act, then it is open to him to do so. But before doing so he would have to afford an opportunity of hearing to all the concerned parties who are directly beneficiaries of the said resolution.
The petition is, therefore, partly allowed to the aforesaid extent. The Court is not opined on the merits of the matter and it is open to all the parties to take out appropriate contentions in respect of their respective stands. Rule is made absolute to the aforesaid extent. No costs.
(S.R.BRAHMBHATT, J.) Pankaj