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2008 Supreme(Bom) 886
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
DR.D.Y.CHANDRACHUD, J.
Municipal Corporation of Greater Mumbai – Petitioners.
Vs.
Malen C. Perira(Smt.) – Respondents.
Writ Petition No.2373 of 2008
Decided on : June 27, 2008.
Mr. A.Y. Sakhare, Senior Advocate with Mr. A.J. Bhor i/b. Mr. S.H.
Ujjainwala for the Petitioners.
Mr. R.D. Bhat for Respondent No.1.
Mr. M.S. Oberoi i/b. Mrs. N.V. Sanglikar for Respondent No.2.
Headnote:Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Section 26-Bombay Municipal Corporation Act, 1888, Section 61(gg)- Whether revised qualifications have force of law and validity issued in super-session of regulation-Question of.-It is abundantly clear in the facts which emerged before the Court that the decision which was taken to prescribe fresh qualifications for appointment to the post of Matron by promotion in 1998 was in derogation of the qualifications and experience prescribed under the Regulations framed under Section 81(1) of the Act. The qualifications and experience provided for by the Regulations cannot be modified or superseded by an administrative act of the Municipal Commissioner, but would have to be replaced by the exercise of the power which is conferred for framing regulations under Section 81. Admittedly, that has not been done. The Municipal Corporation may have cogent reasons for determining that there is a need to revise the qualifications in the interest of the service or the public interest. But a revision of the qualifications prescribed by Regulations has to be by framing fresh regulations or amending the existing Regulations in accordance with law. That not having been done, the Industrial Court was justified in coming to the conclusion that the first respondent should not be disqualified for being considered for the promotional post of Matron in accordance with the regulations which hold the field in pursuance of C.R. 209, dated 2nd February, 1984.
Rule, by consent of Counsel returnable forthwith. Counsel appearing on behalf of the Respondents waive service. By consent of Counsel and at their request taken up for hearing and final disposal. The Municipal Corporation of Greater Mumbai has instituted proceedings under Articles 226 and 227 of the Constitution of India, in order to challenge the judgment of the Industrial Court in a complaint of unfair labour practices under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.
2. The First Respondent was the complainant in a complaint of unfair labour practices instituted before the Industrial Court. The relief that was sought by the First Respondent was a direction to the Municipal Corporation to promote her as a Matron at the KEM Hospital with effect from 1st January 2004 when the post had fallen vacant.
3. In pursuance of the duty cast upon the Municipal Corporation under Section 61(gg) of the Mumbai Municipal Corporation Act, 1888, the Municipal Corporation has established three major Hospitals, namely, (i) KEM Hospital, (ii) Nair Hospital and (iii) LTMG Hospital. There is a post of Matron on the establishment of each of these Hospitals. The post of Matron at the KEM Hospital fell vacant in December 2003 while that at the LTMG Hospital fell vacant in January 2004. The case of the First Respondent was that she had joined service with the Municipal Corporation in 1976 as a Staff Nurse and was appointed as a Sister Tutor in August 1983. Prior to 1998, the qualifications required for the post of a Matron were those that held the field in pursuance of a Resolution passed by the Municipal Corporation on 2nd February 1984. The grievance of the First Respondent is that these qualifications which were prescribed in pursuance of the statutory powers conferred upon the appropriate authority for framing Regulations were sought to be revised in 1998 retrospectively without recourse to the Standing Committee or the Municipal Corporation, by an administrative fiat of the Municipal Commissioner.
4. In order to appreciate the grievance of the First Respondent, it would be necessary to make a reference to the qualifications as they stood for the appointment of a Matron under the Resolution passed by the Municipal Corporation, C.R. 209 of 2nd February 1984. The qualifications were to the following effect :
“Matron By Promotion.
(A) Appointment to the post shall be made either: By Promotion of a suitable candidate in the Municipal Corporation of Greater Bombay possessing the qualification and experience prescribed for the appointment by selection.
(B) By selection from among candidates who:
(I) Unless already in the service of the Municipal Corporation of Greater Bombay are not more than 35 years of age.
(II) a are trained in General Nursing & Midwifery & are registered as Nurse & Midwife, with the Maharashtra Nursing Council or
b possess a Bachelor's of higher degree in Nursing of an Institution, and
(III) have held the post of an Assistant Matron or sister tutor in any of the General Hospitals to which a Nurse Training School is attached for five years after graduation in the case of candidates possessing degree in Nursing & for seven years after qualifying in the case of others. Provided that preference will be given to candidates possessing a certificate passing the Sister Tutor's course or a course in Nursing Administration. Provided further that the age limit may be relaxed in favour of candidates possessing exceptional qualification or experience or both. Provided further that, if at any stage of selection, the Maharashtra Public Service Commission is of the opinion that sufficient number of candidates possessing the prescribed period of experience are not available to fill up the vacancies reserved for candidates belonging to Scheduled Caste, Scheduled Caste converts to Buddhism, Scheduled Tribe, Denotified Tribe or, Nomadic Tribe, then the Commission may, in the matter of such sel
