Writ Petition No. 4977 of 2012

31st August, 2012

Petitioner Counsel: Mr. S.B. Choudhari
Respondent Counsel: Mr. B.V. Wagh

JUDGMENT

-Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing.

2. The petitioner, is a Police Patil and runs a retail kerosene shop at village Ghodki, Tq. Washi, Dist. Osmanabad since the year 1997.

3. The respondent no. 3 issued show cause notice to the petitioner calling explanation from the petitioner as to why the kerosene dealership should not be cancelled as he was appointed as Police Patil. The said notice was issued relying on the Govt. Resolution dated 13/10/2006. The respondent no. 3 thereafter cancelled the kerosene retail licence of the petitioner on the count that petitioner being a Police Patil is a Govt. servant and not entitled for licence of kerosene retail shop.

4. The petitioner being aggrieved by order of respondent no. 3 filed Appeal before the Commissioner [Supply]. The Commissioner [Supply] dismissed the said Appeal. The petitioner preferred Revision before the Hon'ble Minister. The Hon'ble Minister dismissed the Revision. Aggrieved thereby the present Writ Petition is filed.

5. Mr. Choudhari, learned counsel for the petitioner submits that the Govt. Resolution dated 13/10/2006 has been mis-read by the authorities. The said Govt. Resolution does not bar the Police Patil from running the business in the said village. The Govt. Resolution dated 13/10/2006 only lays down that the kerosene licence can not be in the name of Govt. servant. According to the learned counsel, the said Govt. Resolution is introduced pursuant to Rule 16 of the Maharashtra Civil Services [Discipline] Rules, 1979 [For short, 'Rules of 1979']. Police Patil is not covered within said rule.

6. The learned counsel further contends that the post of Police Patil is a honorary post and he receives the honorarium and not salary. The learned counsel further contends that as per Rule 8 of the Maharashtra Village Police Patil [Recruitment, Pay, Allowances and other conditions of service] Rules, 1968 [For short, 'Rules of 1968'], the Police Patil can engage in local business in the village. The kerosene shop is run by the petitioner in the same village of which he is Police Patil.

7. The learned counsel further contends that Rule 16 of the Maharashtra Civil Services [Conduct] Rules, 1979 do not apply to the persons appointed as Police Patil under the Maharashtra Village Police Patil Act, 1967, so also sub rule (3) of Rule 1 of the Rules of 1979.

8. In view of that, the learned counsel contends that the impugned order being illegal, deserves to be set aside.

9. Mr. B.V.Wagh, learned A.G.P. supports the order and submits that the said Govt. Resolution has been issued in larger public interest. If the Police Patil carries on retail kerosene business, that would be in conflict with his performance of duties and as such the said Govt. Resolution has been issued. According to the learned A.G.P., all the facets of the matter are properly considered by the authorities.

10. With the assistance of the learned counsel, I have gone through the impugned Orders.

11. Before adverting to the arguments canvassed by the learned counsel for the parties, it would be appropriate to refer to the relevant rules for deciding the present matter.

Rules 1,2,3,4 and 16 of the Maharashtra Civil Services [Conduct] Rules, 1979 reads as under :

"1. Short title, application and saving -

(1) These Rules may be called the Maharashtra Civil Services [Conduct] Rules, 1979.

(2) They shall come into force on the 12th day of July, 1979.

(3) Except as otherwise provided by or under these rules, these rules (and also any rules and orders in relation to matters covered by these rules duly approved by Government from time to time and not inconsistent with the provisions of these rules) apply to all persons appointed to civil services and posts in connection with the affairs of the State of Maharashtra. Provided that, only Rules 2, 3, 5, 6, 11, 15, 19, 29 and 30 shall apply to persons appointed as Police Patils under the Maharashtra Village Police Act, 1967.

(4) Nothing in these rules shall apply to members of the All India Services, who are subject to the All India Services (Conduct) Rules, 1968.

2. Definitions - In these rules, unless the context otherwise requires,-

(a) "Government" means the Government of Maharashtra.

(b) "Government servant" means any person appointed to any civil service or post in connection with the affairs of the State of Maharashtra, and includes a Government servant whose services are placed at the disposal of a company; corporation, organisation, local authority or any other Government, notwithstanding that his salary is drawn from sources other than from the Consolidated Fund of the State ;

16. Private trade or employment, (1) No Government servant shall, except with the previous sanction of the Government, engage directly or indirectly in any trade or business or undertake any other employment:

Provided that, a Government servant may, without such sanction, undertake honorary work of a social or charitable nature or occasional work of a literary, artistic or scientific character, subject to the condition that his official duties do not thereby suffer; but he shall not undertake, or shall discontinue, such work if so directed by the Government.

Explanation - (1) Canvassing by a Government servant in support of the business of insurance agency, commission agency, etc. owned or managed by his wife or any other member of his family shall be deemed to be a breach of this sub-rule.

(2) Every Government servant shall report to the Government, if any member of his family is engaged in a trade or business or owns or manages an insurance agency or commission agency,

(3) No Government servant shall, without previous sanction of the Government, except in the discharge of his official duties, take part in the registration, promotion or management of any bank or other company which is required to be registered under the Companies Act, 1956 (1 of 1956), or any other law for the time being in force or any co-operative society for commercial purposes :

Provided that, a Government servant may take part in the registration, promotion or management of a cooperative society substantially for the benefit of Government servants, registered under the Maharashtra Cooperative Societies Act, 1960 (Mah.XXIV of 1961), or any other law for the time being in force, or of a literary, scientific or charitable society registered under the Societies' Registration Act, 1860 (21 of 1860) or any corresponding law in force.

(4) No Government servant may accept any fee for any work done by him for any public body or any private person without the sanction of the prescribed authority,

(5) No Government servant in whose case permission to take up commercial employment immediately after retirement is necessary should, while still in service negotiate for any commercial employment after retirement without obtaining prior permission of Government."

Rule 8 of Maharashtra Village Police Patil [ Recruitment, Pay, Allowances and other conditions of service Rules, 1968 reads as under :

"Engagement in business or trade Notwithstanding anything contained in this order, a Police Patil may cultivate land or engage in local business or trade in the village, in such manner as is not detrimental to the performance of his duties as Police Patil, but he shall not undertake any full-time occupation elsewhere."

12. The petitioner is appointed as Police Patil pursuant to the provisions of the Maharashtra Village Police Patil Act, 1967 [For short, 'the Act of 1967']. The functioning of the petitioner as Police Patil is governed by the provisions of the Act of 1967 and the rules framed thereunder. The rights and obligations of the petitioner, as a Police Patil, is governed by the Act of 1967 and the Rules of 1968.

13. The Govt. Resolution dated 13/10/2006 is issued keeping in view Rule 16 of the Maharashtra Civil Services [Conduct] Rules, 1979 [For short, 'Conduct Rules of 1979']. As per Rule 16 of the Conduct Rules of 1979, the Govt. servant is prohibited from engaging directly or indirectly in any trade or business or from undertaking any other employment except with the prior sanction of the Govt.

14. Rule 16 of the Conduct Rules of 1979 will have to be read coherently with sub rule (3) of Rule 1. The provisions of sub rule (3) of Rule 1 succinctly and without any reservation exempts the operation of Rule 16 to the persons appointed as Police Patil under the provisions of the Act of 1967. When the statute or the rules specifically exempt the operation of particular statute, the same will have to be strictly construed. We can not import the provision, which the Legislature in its wisdom has specifically exempted from the operation. The Govt. servants, to whom Rule 16 of the Conduct rules, 1979 apply, would only be deemed to be covered by the Govt. Resolution dated 13/10/2006. The very prelude to the said Govt. Resolution is clear, unambiguous. It is restricted to the Govt. servants covered by Rule 16 of the Conduct Rules, 1979.

15. Even Rule 8 of the Rule of 1968 does not refrain the Police Patil from engaging in local business or trade in the village. It is not the subject matter of dispute that the petitioner who is Police Patil of village Ghodki is running his kerosene business in the said village itself. As such, the petitioner running the kerosene shop at Ghodki, is also in consonance and conformity with Rule 8 of the Rules of 1968.

16. The petitioner has been given licence to run the retail kerosene shop. He is entitled to the said licence as per the provisions of law and statute. The said right of the petitioner can not be taken away except in accordance with the provisions envisaged under the statute and the Rules. None of the statute, rules or order bars the Police Patil from running retail kerosene shop in the village, in which he is officiating as Police Patil. The Govt. Resolution will have to be read strictly in the manner it has been issued. The clauses of the said Govt. Resolution which are in vernacular language lay down the restrictions upon the Govt. servants covered by Rule 16 of the said Conduct Rules, 1979 to do business and no further.

17. When an action is being resorted, more particularly, which results into the consequence of taking away livelihood of the person, the same will have to be strictly in consonance with the provisions of the statute and Rules. The petitioner can not be deprived of his right to run the business except in accordance with law. The impugned order of the District Supply Officer upheld by the Commissioner [Supply] and the Hon'ble Minister can not be sustained and deserves to be quashed and set aside and they are hereby quashed and set aside.

18. In light of the above, Rule is made absolute in terms of prayer clause 'C', however with no order as to costs.

Petition allowed.