K.D. Shah vs State of Gujarat and Others

N.H. Bhatt, J.—This is a petition by one citizen holding a civil post under the State of Gujarat. At the time he filed the petition he was working as the Personal Assistant to the Joint Director of Health Services, the respondent No. 3 herein. The second respondent, the Director, has passed the impugned order Annexure-A dated 27-12-1983 transferring the petitioner from his present post to the District Panchayat, Surat to occupy a room created by one Mr. Bhage retiring on superannuation with effect from the end of the year 1983. The respondent No. 3 had directed consequently on 30-12-1983 that the petitioner should hand over his charge to one Mr. Gurjar, the Superintendent on 30th December 1983 after office hours. The petitioner has filed this petition for quashing and setting aside the said order as the one passed by the respondent No. 2 without authority of law.

1.1. There is no controversy that the petitioner was holding a post under the State Government and all throughout be has served as such. Under the provisions of Section 207 of the Gujarat Panchayats Act, the State Government has got powers, by a general or special order to direct that certain officers of the Class-II Services of the State shall be posted under such Panchayat or allot or transfer to such Panchayat for such period and subject to such conditions as may be specified in the order and the moment such an order is passed the officer specified in the order comes to be posted under such Panchayat.

As the impugned order has been passed by the respondent No. 2, the Director, the matter was required to be admitted with stay granted. The matter was called out for final hearing today. Mr. M.A. Panchal showed me one Government Resolution dated 4-5-1981 authorising the Director, the respondent No. 2 to effect such transfers or postings. The powers of the State Government u/s 207 of the Gujarat Panchayats Act are the statutory powers and they cannot be delegated otherwise than in accordance with the provisions of the Act. The only section that envisages such delegation of powers is Section 321 of the said Act which provides that the State Government may, by Notification in the Official Gazette, authorise any officer of Government to exercise all or any of the powers exercisable by the State Government under this Act. Mr. Panchal fairly conceded that the impugned Resolution dated 4-5-1981 was not notified in the Official Gazette and if it be so, the impugned order Annexure-A passed by the respondent No. 2 herein, can be said to be an order passed without authority of law and on that ground order Annexure-A is set aside. The rule is accordingly made absolute with no order as to costs. As the charge has been taken over from the petitioner in pursuance of an unauthorised order, it goes without saying that it shall be returned to him within a period of seven days from today without any break in his service and with all attendant benefits as if he was not relieved of that charge.