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2022 Supreme(Bom) 2684
IN THE HIGH COURT OF BOMBAY
Sandeep K. Shinde, V.V. Joshi, JJ.
Ranjana - Appellant
Versus
State of Maharashtra - Respondent
Writ Petition No. 2884 of 2021
Decided On : 06-12-2022
S.V. Manohar, Advocate, Y.N. Sambre, Advocate, A.M. Kadukar, Advocate, J.B. Kasat, Advocate, M. Anilkumar, Advocate
IMPORTANT POINT
The inclusion of new posts in a promotional cadre constitutes a change in qualifications that requires state approval under the Maharashtra Municipal Corporation Act, and failure to obtain such approval renders any resultant seniority lists invalid.
Headnote:
MUNICIPAL LAW - PROMOTION AND SENIORITY IN MUNICIPAL CORPORATION - City of Nagpur Corporation Act, 1948; Maharashtra Municipal Corporation Act, 1949; Resolution No.31 dtd. 12/04/1976; Resolution No.116 dtd. 20/06/2015; Sec. 2(58); Sec. 45; Sec. 453; Sec. 454; Chapter-III of Schedule-D - The court analyzed the legal framework governing the promotion of municipal officers, emphasizing that the Rules of 1976 were the only applicable regulations for promotions to the post of Deputy Municipal Commissioner. The court interpreted that the inclusion of the Assistant Commissioner in the feeder cadre constituted a change in qualifications, which required state approval under the MMC Act. The lack of such approval rendered the common seniority lists invalid, leading to the quashing of the lists and the resolution.
Fact of the Case:
The petitioner, a Municipal Statistical Officer, challenged the legality of a seniority list and a resolution that included the post of Assistant Commissioner in the promotional cadre for Deputy Municipal Commissioner, arguing that the existing Rules of 1976 governed promotions and that the resolution lacked state approval.
Finding of the Court:
The court found that the Rules of 1976 were the only governing regulations for promotions to the Deputy Municipal Commissioner post. It concluded that the inclusion of the Assistant Commissioner in the feeder cadre was an unauthorized alteration of qualifications that required state approval, which was not obtained.
Issues: 1. Which rules govern the promotion of Municipal Officers to Deputy Commissioner? 2. Is the inclusion of Assistant Commissioners in the feeder cadre a valid alteration under the MMC Act? 3. Was the Corporation justified in drawing a common seniority list including Assistant Commissioners?
Ratio Decidendi: The court held that the Rules of 1976 govern promotions, and any changes to these rules, including the addition of posts to the feeder cadre, require state approval. The absence of such approval invalidated the common seniority lists drawn by the Corporation.
Final Decision: The court quashed the common seniority lists dated 01/01/2017 and 01/01/2022 and declared that the Resolution No.116 dtd. 20/06/2015 was invalid due to lack of state approval.
JUDGMENT/ORDER
SANDEEP K.SHINDE, J. - Rule. Rule made returnable forthwith.
2. Heard finally with the consent of learned counsel appearing for the parties.
3. This petition under Articles 226 and 227 of the Constitution of India challenges the implementation of Resolution No.116 dtd. 20/06/2015 passed by the General Body of the Nagpur Municipal Corporation AND questions the legality and validity of a combined seniority list of cadre consisting of Municipal Secretary / Octroi Superintendent / Tax Assessor and Collector / Special Desk Officer / C.A.F.O. / Statistician (Birth and Death) and Assistant Commissioner drawn, for the years 2017 and 2022 pursuant to Resolution No.116 passed by the General Body of the Nagpur Municipal Corporation and further, seeks its quashment.
Facts, essential for the decision of this petition, are as under :-
4. The petitioner is Municipal Statistical Officer (Birth and Death). In the year 1997, she was appointed as ECG Technician. In the year 2008, she was promoted as a Statistical Officer (Birth and Death). Whereafter, in the year 2012-2013, she was given additional charge as a Special Desk Officer and Transport Officer, and, additional charge of Deputy Municipal Commissioner from 28/12/2015 to January, 2022.
5. The City of Nagpur Corporation Act, 1948 was repealed by the City of Nagpur Corporation (Repeal) Act, 2001 and the Maharashtra Municipal Corporation Act, 1949 ("MMC Act", for short) came to be applied to the Areas of Nagpur Municipal Corporation, w.e.f. 21/08/2012.
6. Petitioner's case is that ;
(i) Before the repeal of the City of Nagpur Corporation Act, 1948, the recruitment and promotion of Municipal Officers was subject to Rules contained in Resolution No.31 dtd. 12/04/1976 ("Rules of 1976", for short).
(ii) In terms of said resolution, the post of Deputy Municipal Commissioner / Additional Deputy Municipal Commissioner is promotional post and its feeding cadre consists of six posts i.e. Municipal Secretary, Octroi Superintendent, Tax Assessor and Collector, Chief Accounts and Finance Officer, Special Desk Officer and Statistical Officer (Birth and Death) (hereinafter called as "feeding cadre"). Thus, officers holding the post in the feeding cadre were / are qualified to be appointed to the post of Deputy Municipal Commissioner / Additional Municipal Commissioner. As such, according to the petitioner, Rules of 1976, prescribe qualification for promotion to the Deputy Commissioner / Additional Municipal Commissioner.
(iii) The post of Assistant Commissioner / Ward Officer was not included in the said feeding cadre.
7. That, in exercise of powers under Sec. 409 (b) and other enabling provisions of the City of Nagpur Corporation Act, 1948, bye-laws, for recruitment and promotion of officers including, that of Assistant Commissioner, were framed and published in Gazette on 03/10/2001. These bye-laws were challenged by the Rashtriya Nagpur Corporation Employees Association, before the Industrial Court in Complaint (ULP) No.462/2002. The challenge was founded on the ground that, the Certified Standing Orders under the Bombay Industrial and Relations Act, 1946 were applicable to service conditions of the employees of the Corporation and therefore, it was necessary for the Corporation to hold discussion and then finalize draft of Service Rules. The learned Member, Industrial Court, Nagpur vide order dtd. 30/07/2007, declared that the respondentCorporation has committed unfair labour practice under Item 9 Schedule-IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (for short, "MRTU & PULP Act, 1971") and directed to desist from continuing the same. The operative part of the order reads as under :
"The respondent / Corporation is directed to not to act upon the Recruitment and Promotion Bye-laws in question, without following due process of law and principles of natural justice."
As such, according to the petitioner, as on date, no Rules are in force, regula
