'Hostile Discrimination': Rajasthan HC Quashes Municipal Chairperson's Suspension Order Upon Noting Similar Charges Against SDO & EO Were Dropped

The Rajasthan High Court has recently quashed a suspension order against Rajgarh's Municipal Chairman, which was still in force despite revoking suspensions of the Sub Divisional Officer and Executive Officer against whom similar chargesheets were issued pursuant to an encroachment removal drive in contravention of regulations under the Municipalities Act.

The single judge bench of Justice Anoop Kumar Dhand opined that the respondent state authorities have acted in a colourable exercise of their powers while deciding to keep the suspension order of the Chairman intact for an indefinite period.

“Perusal of the suspension order of all the three persons i.e. the SDO, the EO and the petitioner indicates that similar charges have been levelled against them and for the same charges all of them were placed under suspension on the same day i.e. 25.04.2022…”, the court pointed out that both SDO and EO were later taken back into service after recalling their suspension orders.

It was noted that this was the second suspension order issued against the petitioner chairman after the initial suspension order dated 25.04.2022 was set aside by the High Court citing 'non-application of mind' by the respondent authorities.

Terming the action of the state authorities as 'arbitrary' and 'not legally sustainable', the court concluded that the chairman has been put to 'hostile discrimination' vis-a-vis the government officials including SDO and EO.

“The principle that two equals cannot be treated unequally is a fundamental principle of justice and fairness that is recognized by legal systems around the world… For example, the Universal Declaration of Human Rights, which is recognized by the United Nations as a foundational document for human rights, states in Article 7 that “All are equal before the law and are entitled without any discrimination to equal protection of the law”… According to the great philosopher and scholar Aristotle “Equals should be treated equally and unequals unequally”, the bench sitting at Jaipur further observed.

The court then went on to comment upon the 'principle of non-arbitrariness' that the government officials discharging their duties must adhere to.

It was noted that discretionary powers are meant to be exercised in good faith and in accordance with law, the court added. Expanding upon this concept, the court also opined that government officials and agencies must have a rational basis for their decisions. Their decisions must be based on 'relevant and objective criteria' and not 'personal preferences or prejudices'.

While quashing the suspension order, the state was also asked to conclude the pending enquiry against the Chairman, SDO and EO preferably within three months.

Background & Arguments Raised

Initially, the Municipal Chairman, SDO and EO were suspended in 2022 based on complaints received by the Deputy Director (Regional), Department of Local Bodies about an encroachment removal drive that was allegedly in contravention of the statutory safeguards given in the Rajasthan Municipalities Act, 2009.

Pursuant to a general body meeting which was conducted on 08.09.2021 under the chairmanship of the MLA and deputy chairmanship of the SDO, notices were issued by EO to the encroachers demanding removal of unauthorised constructions. The Municipal Chairperson was also a part of this general body meeting.

Before the High Court, Senior Counsel R.K Agarwal, argued that all three of them including the petitioner chairman, SDO and EO were similarly placed and hence the suspension order of the chairman alone can't continue till the culmination of enquiry. He also submitted that the suspension order had been motivated by political reasons.

Advocate Yashodhar Pandey on behalf of AAG submitted that many encroachments were removed without affording the stakeholders an opportunity of being heard. It was further alleged by the state that many of them had valid pattas and court decrees in their favour which were not taken into consideration during the encroachment removal drive.

As per Section 55 of the 2009 Act, a committee should have been constituted for the encroachment drive; this condition was not given due regard by the chairperson. According to the state, the chairperson also violated Section 48 of the 2009 Act which stipulates his duties and functions as well as the mandate of prior approval from state government before removing people with rightful claims over their lands.

Case Title: Satish Kumar Duhariya S/o Late Shri Moolchand v. State of Rajasthan, through Secretary, Local Self Government Department & Anr.

Case No: S.B. Civil Writ Petition No. 11706/2023

Citation: 2024 LiveLaw (Raj) 11

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