Bombay High Court
Azizulrahaman vs The Nagpur Municipal Corporation on 4 December, 2013
Bench: B.P. Dharmadhikari, A.S. Chandurkar
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3795/1997
AND
WRIT PETITION NO.667/1999
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WRIT PETITION NO.3795/1997
PETITIONERS : 1. Azizulrahaman s/o M.A. Rafique,
aged about 40 years, Occupation -
service, Res. of 28, Anantnagar,
behind Police Line, Katol Road, Nagpur.
ig 2. Kanti Kumar L. Sonkusare,
aged about 39 years, Occ. Service,
res. of Subhedar Layout, Nagpur.
3. Vijay Wasudeo Gabhane,
aged about 39 years, Occ. Service,
Res. of 202, Dattatray Nagar,
Nagpur - 440 024.
4. S.S. Gaikwad, aged about 37 years,
Occ : Service, R/o : Plot No.12,
Satpute Layout, Somalwada, Nagpur.
5. M.R. Gupta, aged about 37 years,
Occ. Service, r/o Soni Lane,
Sitabuldi, Nagpur.
...Versus...
RESPONDENTS : 1. The Nagpur Municipal Corporation,
Mahanagar Palika Marg, Civil Lines,
Nagpur - 440 001, through its
Municipal Commissioner.
R2) Kedarnath s/o Ramlakhan Mishra,
aged Adult, Occupation - Service,
Resident of 28 Saraswati Vihar Colony,
Trimurty Nagar, Nagpur.
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R3) Prashant s/o Prabhakar Bhankar,
aged adult, Occupation - Service,
resident of 26/8 MIG Colony, Trimurty
Nagar, Nagpur.
R4) Wasudeo s/o Nathuji Gadre,
aged adult, Occupation - Service,
R/o 50, Central Excise Colony,
Khamla, Nagpur.
R5) Rajesh s/o Santoshrao Thambre,
aged adult, Occupation - Service, resident
of Plot No.3, Saibaba Colony, Koradi
ig Road, Nagpur.
R6) Anil Singh s/o Prahlad Singh Chouhan
aged-adult, Occupation - Service,
resident of Plot No.18, Adhyapak Layout,
MIDC, Hingna Road, Nagpur.
R7) Chandrakant s/o Ramchandra Gabhane
aged about adult, Occupation - Service,
resident of Plot No.30, Nandanwan,
Nagpur.
R8) Avinash s/o Nanasaheb Barhate,
aged about 35 years, Occupation - Service,
R/o Vasant Nagar, Behind Blind School,
Nagpur.
R9) Aniruddha Damodar Chouganjkar
aged about 38 years, Occupation -
R/o Laxmi Nagar, Nagpur.
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Shri M.G. Bhangde, Sr. Adv. with Shri R.M. Bhangde, Adv. for petitioners
Shri C.S. Kaptan, Sr. Adv. with S/Shri Chawhan, J.B. Kasat, Advs. for R-1
Shri A.S. Jaiswal, Adv. for R - 8 /intervenor
Shri V.A. Dhabe, Adv. for R - 9/intervenor
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WRIT PETITION NO.667/1999
PETITIONERS : 1. Ashok s/o Wasudeo Sathawane
aged about 45 years, Occupation -
service, resident of Forest Colony,
Civil Lines, Nagpur.
2. Baba s/o Vinayakrao Gudhadhe
Aged about 50 years, Occupation -
Service, Resident of Kasturba Lay-out,
Nagpur.
3. Ram son of Shamrao Gandhi,
ig Aged about 39 years, Occupation -
Service, resident of 24, Bhagwaghar Layout,
Dharampeth, Nagpur.
4. Ashok son of Natthuji Deotale,
aged about 39 years, Occupation -
Service, Resident of Nagpur Municipal
Corporation, Nagpur.
5. Shakil Ahamad Niyazi
Aged about 38 years, Occupation
Service, resident of Nagpur Municipal
Corporation, Nagpur.
6. Upendra s/o Bapurao Akojwar
aged about 42 years, Occupation -
Service, resident of Sadar, Nagpur.
...Versus...
RESPONDENT : The Nagpur Municipal Corporation,
Mahanagar Palika Marg, Civil Lines,
Nagpur - 440 001, through its
Municipal Commissioner.
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Ms K.K. Pathak, Adv. for petitioners
Shri C.S. Kaptan, Sr. Adv. with S/Shri Chawhan, J.B. Kasat, Advs. for respondent
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4
CORAM : B.P. DHARMADHIKARI AND
A.S. CHANDURKAR, JJ.
DATE : 25.11.2013, 03.12.2013 &
04.12.2013
ORAL JUDGMENT : (PER : B.P. DHARMADHIKARI, J.)
1. The challenge in Writ Petition No.3795 of 1997 filed by
three individuals is to the Resolution dated 2/12/1997 thereby promoting
the Junior Engineers as Deputy Engineers. It is not in dispute that the
present petition came to be filed on 26/12/1997 and the said Resolution
promoting the eight persons came to be implemented on 1/1/1998. The
petitioners also challenge the seniority list on the basis of which these
eight persons have been promoted and seek direction to respondent No.
1/Nagpur Municipal Corporation to prepare a cadre-wise seniority list of
Assistant Engineer-II and Sectional Engineer independently based upon
the length of service at a particular post w.e.f. 1/4/1981. On 7/10/1998
the petition has been amended to add prayer to direct the Corporation to
act upon the office note dated 1/1/1998. The persons promoted have
later on been impleaded as Intervenor/respondent Nos. 2 to 9.
2. In Writ Petition No.667 of 1999 the petitioners seeks a
declaration that the action of the Corporation in not following the
Resolution dated 5/10/1984 in toto is illegal. They also seek a direction
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to restrain it from dividing the seniority list of different cadres like Junior
Engineers, Assistant Engineers-II and Sectional Engineers. The prayer
obviously is not to subdivide the seniority list of Junior Engineers into
these different cadres. They also sought expressly a direction to the
Corporation to continue with the old policy of maintaining the seniority
list of Junior Engineers, Assistant Engineers-II and Sectional Engineers.
3. In Writ Petition No.3795 of 1997 this Court has on
16/10/1998 passed a following order :
"Heard. As the respondent Municipal Corporation
vide their Resolution No.65 dated 5.10.1984 have adopted
and accepted Government Resolution dated 16.4.1984 of
the State of Maharashtra, they are required to prepare
three separate seniority lists as prayed for, in accordance
with the Resolution of the Corporation. The application is
allowed in terms of prayer clause (a). Other reliefs sought
would be considered after separate seniority lists as
directed is prepared."
4. It is not in dispute that obeying that order the
respondent/Corporation prepared a seniority list on 6/2/1999. On
26/2/1999 this Court has passed the further orders which reads as
under :
"Heard Counsel.
There is no objection to the C.A.No.932/99 for
directions by the respondent Corporation. C.A.No.932/99 is
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allowed. Future promotions, ad-hoc or otherwise to the post
of Deputy Engineer from the post of Assistant Engineer-II shall
be made only on the basis of final seniority list published on
6.2.1999."
5. Thus, this Court on that day ordered that the future
promotions to the post of Deputy Engineer from the post of Assistant
Engineer-II shall be made by following the seniority list dated 6/2/1999.
It is, in this background, we have heard the Senior Advocate Shri M.G.
Bhangde with Advocate Shri R.M. Bhangde appearing for the petitioners
in Writ Petition No.3795 of 1997, Advocate Ku. K.K. Pathak, appearing for
the petitioners in Writ Petition No.667 of 1999, Senior Advocate Shri
Kaptan with Advocate Shri Chawhan and Advocate Shri J.B.Kasat,
appearing for respondent/Corporation, Advocate Shri V.A. Dhabe,
appearing for respondent No.9/intervenor in Writ Petition No.3795 of
1997 and Advocate Shri A.S. Jaiswal, appearing for
intervenor/respondent No.8 in Writ Petition No.3795 of 1997.
6. It is to be noted that there are few other writ petitions
placed for consideration along with these two petitions. However, those
petitions challenge the preparation of seniority list published on 6/2/1999
by following the directions of this Court issued on 6/10/1998. Thus,
norms followed for the said purpose are questioned in those petitions and,
hence, those petitions have been separated presently from this petition.
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7. The learned Senior Advocate Shri Kaptan, appearing on
behalf of the Corporation as also the Advocate Shri Jaiswal, appearing on
behalf of respondent No.8/intervenor have made their stand clear by
submitting that the respective respondents are not opposing the directions
issued on 16/10/1998.
8. Learned Senior Counsel Shri Bhangde with Adv. R.M.
Bhangde urged that the basic qualifications for recruitment to the post of
Junior Engineer or then for promotion from that post to the post of
Deputy Engineer are prescribed vide Resolution of Corporation having No.
31 dated 12/4/1976.
9. The State Government on 16/4/1984 awarded gazetted
status to the Graduate and other Junior Engineers with effect from
1/4/1981. This Resolution of State Government has been adopted by the
Corporation vide Resolution No. 65 dated 5/10/1984 passed by its
Administrator. Because of this adoption, the Graduate Junior Engineers
working with Corporation secured gazetted Class II status. Junior
Engineers with three years' Diploma became gazetted Officers after
experience of five years. Those with two years' Diploma are entitled to
become gazetted Officers after seven years and other Junior Engineers
mentioned as unqualified Junior Engineers qualify for that status after ten
years of service. The Graduate Junior Engineers were then designated as
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Assistant Engineers (Class-II) and their cadre's strength was determined at
25% of the total number of posts of Junior Engineers. The Diploma
Holders or others became Sectional Engineers (Class-II). Thus, cadre of
Assistant Engineer (Class-II) surfaced as immediate next below cadre for
the post of Deputy Engineer followed by cadre of Sectional Engineer and
lastly the cadre of Junior Engineer. Different pay scales were prescribed
for these cadres.
10.
He invites attention of the Court to revised pay scales
sanctioned in 1996 on the eve of Vth Wage Revision and states that
accordingly different pay scales were prescribed and maintained.
Graduate Engineers took objection to common seniority list of all these
cadres on 15/5/1997. One of the petitioners, who is Assistant Engineer
(Class II) also raised objection on 29/5/1997. It is in this background
that the impugned Resolution came to be passed on 2/12/1997 and eight
Junior Engineers out of common seniority list were promoted as Deputy
Engineers. Writ Petition was filed on 26/12/1997 and the orders were
issued and implemented on 1/1/1998. He points out that those orders
specifically mention the promotion to be temporary. He contends that
thus, without preparing separate seniority list or otherwise distinct cadres,
the promotions could not have been ordered. It is in this background that
he has invited Court's attention to order dated 16/10/1998 passed by it in
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the present matter and later order dated 26/2/1999.
11. The stand of respondent Corporation through its Senior
Counsel Shri Kaptan with Adv. Kasat is already briefly mentioned by us
above.
12. Learned Senior Counsel Shri Kaptan while accepting the
contention that three separate cadres emerged pointed out the
modification effected on 18/10/1999 in the ratio for the promotion to the
post of Deputy Engineer. 50% of the vacancies in the cadre of Deputy
Engineer are to be filled in through Assistant Engineers while remaining
50% are to be filled in through Sectional Engineers.
13. Adv. Dhabe appearing for respondent no.9/ intervener and
petitioner in Writ Petition No. 1592/1999 has urged that through various
Resolutions mentioned supra, there was no creation of any separate post
or cadre. The cadre remained a cadre of Junior Engineers. He has further
submitted that though referred to as Service Rules, the qualifications and
ratio are prescribed only through Resolutions and basic document dated
31/12/1976 is nothing, but a Resolution of the General Body. He has
relied upon reply-affidavit to point out previous history. He contends that
as the said previous history was not pointed out to this Court when it
passed order dated 16/10/1998, the direction to prepare a common
seniority list came to be issued. He has invited our attention to
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paragraph (7) of the counter affidavit filed by respondent no.9 for this
purpose. He has further stated that vide General Body's Resolution No.80
dated 28/11/1985, the requirement of educational qualification for
promotion has been dispensed with. He, therefore, submits that common
seniority list of Junior Engineers as prevalent in 1984 must continue and
petition must be dismissed.
14. Adv. Pathak appearing for petitioner in Writ Petition No.
667/1999 has adopted the arguments of Adv. Dhabe. She asserts that
policy framed vide Resolution No.31 dated 12/4/1976 must be
implemented. She has invited our attention to Circular dated 19/10/1984
issued by Additional Deputy Municipal Commissioner to urge that even as
per the said Circular, preparation of three different seniority lists is not
necessary though it speaks of separate pay scales. A common seniority list
of all Junior Engineers must be used while effecting promotions to the
post of Deputy Engineer. She contends that there is no creation of
separate post or cadre and it is only re-designation, which does not
necessitate preparation of different lists.
15. A communication dated 18/2/1992 sent by the Deputy
Municipal Commissioner to Graduate Engineers rejecting their
representation for separate seniority list is also pressed into service with
contention that there is no challenge to the same. Our attention is also
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drawn to the stand of Nagpur Municipal Corporation in reply dated
22/12/1992 filed before Lokayukta. She states that even in the said reply,
the cadre of Junior Engineers as a whole has been accepted as next below
cadre for the promotions.
16. The orders passed on 25/6/1999 in Writ Petition
No. 3795/1997 are also pressed into service to show that there is a
direction to respondent no.1 Corporation to frame rules for promotions
for Junior Engineers, Sectional Engineers and Assistant Engineers
expeditiously. It is contended that unless and until such Rules are framed,
the existing practice cannot be changed and Resolutions also cannot be
altered. She, therefore, prayed for allowing Writ Petition No. 667/1999
by directing Corporation to follow Resolution dated 5/10/1984 and to
continue to maintain a common seniority list.
17. Learned Senior Counsel Shri Kaptan while replying to
arguments in Writ Petition No. 667/1999 has urged that a Resolution can
be altered by later valid Resolution and all changes in basic Resolution
No.31 dated 12/4/1976 are already on record. He, therefore, prays for
dismissal of Writ Petition No.667/1999.
18. Learned Senior Counsel Shri Bhangde in his reply arguments
has stated that reliance upon three documents by petitioners in Writ
Petition No. 667/1999 is misconceived. Letter dated 18/2/1992 of
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Nagpur Municipal Corporation or stand taken by it in reply dated
22/12/1992 before Lokayukta are subject to adjudication of Writ Petition
No.3795/1997. The Circular dated 19/10/1984 is complete in itself and
has been rightly implemented. Options were invited earlier on 5/10/1984
and Circular dated 19/10/1984, therefore, only deals with the said facet.
He further contends that in view of adoption of Government policy, later
on heterogeneous groups emerged, which necessitated a balancing act
while effecting promotion to the post of Deputy Engineer. The said
equilibrium or balance has been struck by providing 50% reservation each
for Assistant Engineers (Grade-II) as also for Sectional Engineers as per
modification effected by Mayor on 18/10/1999 according to Resolution
No.100 dated 21/10/1997 of Municipal Corporation.
19. The prayers in Writ Petition No.667/1999 need to be looked
into first. There the first prayer is to direct Corporation to declare that
action of respondent Corporation in not following Resolution dated
5/10/1984 in toto is illegal. Second prayer is to direct respondents to
continue the old policy of maintaining common seniority list of Junior
Engineers, Assistant Engineers (Grade-II) and Sectional Engineers till
appropriate Rules are framed and approved. The petition has been filed
on 7/12/1998 and on that day, petitioner no.1 Ashok Sathawane therein
was working as Deputy Engineer. He is a Diploma Holder. The other five
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petitioners therein are also Diploma Holders and in para (1) they state
that after completion of five years of service, they came to be designated
as Sectional Engineers and thereafter they were promoted as Deputy
Engineers.
20. The Resolution dated 5/10/1984 is thus claimed as not fully
implemented in Writ Petition No.667/1999 while petitioners in Writ
Petition No. 3795/1997 attempt to point out that it has been completely
executed. The fact that it has been implemented from 1/4/1981 by
following Government Resolution dated 16/4/1984 is not in dispute. The
petitioners before this Court are the beneficiaries of the decision dated
5/10/1984. This Decision No.65 dated 5/10/1984 taken by Corporation
in the regime of Administrator states that from 1/4/1981 Graduate Junior
Engineers working in Corporation shall be given the status of Officers
(Class II). Junior Engineer holding three years' Diploma becomes eligible
for getting status of Officer after five years' service, Junior Engineer
holding two years or equivalent Diploma becomes eligible for that status
after seven years and other Junior Engineers become eligible for that
status after ten years. Perusal of Item No.11 of Resolution No.31 dated
12/4/1976 dealing with Rules for recruitment and promotions show that
even Certificate Holders were eligible to become Junior Engineers. This
was later on modified to relax educational qualification for Timekeepers
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and Mistry already in employment with Corporation. For them,
educational qualification of X Standard pass with ten years' experience of
working in P.W.D. was held sufficient. This modification effected on
31/12/1980 was later on cancelled on 31/7/1982. Thus, for sometime,
employees like Time Keepers and Mistry working in P.W.D. were also
eligible to aspire for the post of Junior Engineer.
21. The Resolution No. 65 dated 5/10/1984 points out Assistant
Engineer (Class - I) in pay scale of Rs.660-Rs.1250/- as the post at top.
The post of Deputy Engineer in the pay scale of Rs.600-Rs.1150/- is
below it. Thereafter, in hierarchy, the post of Assistant Engineer (Class-II)
in the pay scale of Rs.650-Rs.950/-, post of Sectional Engineer in the pay
scale of Rs.650-Rs.950/- and then post of Junior Engineer in the pay scale
of Rs.395-Rs.900/- appear. Paragraph (5) of this Resolution mentions that
appointments to these posts would be made as per rules of recruitment.
The incumbents holding posts of Assistant Engineer (Grade-II) and
Sectional Engineers were to perform their existing duties and possess
same powers. Paragraph (6) thereafter stipulates that independent orders
for creation of posts to be sanctioned in specified proportion for cadres of
Assistant Engineer (Grade-II) and Sectional Engineer as also about
appointments to those posts would be issued. The Circular dated
19/10/1984 is issued by Additional Deputy Municipal Commissioner and
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it refers to Government Resolution dated 16/4/1984 and states that all
incumbents satisfying requirements as stipulated therein would be
designated as either Junior Engineers or Sectional Engineers or Assistant
Engineers (Grade-II). It also stipulates that total number of posts of
Assistant Engineers (Grade-II) would be restricted to 25% of total number
of Junior Engineers in Corporation. Option has been given to Junior
Engineers to come over to new scales or to retain existing scales. Thus,
this Circular dated 19/10/1984 is issued in terms of paragraph (6) of the
Resolution No. 65 dated 5/10/1984.
22. In this background when the revised pay structure
sanctioned to Junior Engineers and Sectional Engineers or Assistant
Engineers (Class-II) is looked into, it shows that prior to 1/11/1996 pay
scale of Junior Engineer was Rs.1400-2300/- and they were given revised
pay scale of Rs.1640-2900/-. Sectional Engineers/Assistant Engineers
(Class-II) were in the pay scale of Rs.2000-3200/- and revised pay scale of
Rs.2000-3500/- with Class II status has been sanctioned to them by order
dated 1/11/1996. The orders stipulate that arrears becoming due and
payable for the period from 1/1/1986 to 31/12/1995 would not be paid.
The pay so fixed from 1/1/1986 as per revised pay scale and salary
becoming payable accordingly was to be released from 1/1/1996. Thus,
even when Resolution was passed by Administrator on 5/10/1984 or
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when it was implemented on 19/10/1984 and thereafter on 1/11/1996
when Municipal Commissioner sanctioned revised pay scales, it became
clear that those Junior Engineers with gazetted Status were treated
separately while others were continued as Junior Engineers. Junior
Engineers with gazetted status either became Assistant Engineers
(Class-II) or Sectional Engineers depending upon their educational
qualification.
23.
Insofar as post of Deputy Engineer is concerned, Resolution
No.31 dated 12/4/1976 prescribes that the said post would be filled in
from next below cadre (Junior Engineer) by following principle of
seniority and merit through promotion. The fact that promotion to this
cadre was to be made in proportion of 50% through Sectional Engineers
and remaining 50% from Assistant Engineers is disclosed on record in
additional affidavit by Corporation. Because of above position, on
21/10/1997 General Body of Municipal Corporation passed Resolution
No. 100 and gave authority to Mayor to take a decision regarding policy
of promotion and appropriate decision. Mayor first decided the ratio of
33:67 between Assistant Engineers (Grade-II) and Sectional Engineers.
However, it has been later on modified on 18/10/1999 to 50% each. This
ratio is still stated to be in force. The rival contentions need evaluation in
this factual background.
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24. Thus, discussion above clearly shows the fact that none of
the petitioners are against the adoption of the Government Resolution
vide Administrative Resolution No.65 dated 5/10/1984. On the contrary,
they have also been benefited because of that adoption. Some of the
Junior Engineers, working in earlier cadre with Diploma, became officers
with gazetted status after five years of service or seven years of service, as
the case may be. Hence, on a given time, in erstwhile cadre, one could get
graduate Junior Engineers, Junior Engineers who have secured Diploma
and then the Junior Engineers with other qualifications. After adoption of
said policy, graduate Junior Engineers became Assistant Engineers
(Class-II). The Junior Engineers, holding Diploma qualification, got the
same status but after putting five years of service or seven years of service.
Hence, it is only so called unqualified Junior Engineers, who could not
improve their status. None of such unqualified Junior Engineers are
before this Court in Writ Petition No.667/1999. Even an unqualified
Junior Engineer, after ten years of service, could improve his status. The
Diploma holders are not before this Court with a grievance that
discrimination has been made by designated Junior Engineers, holding
graduate qualification as Assistant Engineers (Class-II). The classification
introduced in the old cadre of Junior Engineers is not being assailed in
these petitions by anybody.
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25. Hence, unqualified Junior Engineers in pay scale of
Rs.395-900/- were at the bottom in the erstwhile cadre, where the
Sectional Engineers, who got that status after fives years and seven years
of service and thereafter the Assistant Engineers (Class-II). Pay scales of
both these cadres after re-designation were same. The next higher pay
scale is available in the cadre of Deputy Engineer. Insofar as that cadre is
concerned, Resolution No.31 dated 12/4/1976 prescribes that it has to be
filled in by promotion through immediately next below cadre.
26. The next below cadre for the post of Deputy Engineer
therefore is that of Sectional Engineer or Assistant Engineer (Class-II). We
have already noted above that 50% of the posts of Deputy Engineers are
to be filled into Sectional Engineers while remaining 50% are to be filled
in by promoting Assistant Engineers (Class-II). Thus, both Diploma
holders and Decree holders have been given equal treatment and
weightage for the purpose of said promotion. We again reiterate that no
unqualified Junior Engineer is before this Court. In any case, an
unqualified Junior Engineer gets the status of an officer after ten years of
service. Hence, in the cadre of Sectional Engineers, the length of service is
important.
27. In this situation, we find that the Junior Engineers upgraded
as Sectional Engineers and Junior Engineers upgraded as Assistant
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Engineers (Class-II) have been treated equally also for the purpose of
promotion to the post of Deputy Engineer.
28. We, therefore, do not find any substance in the grievance
being made either by Advocate Shri Dhabe or Advocate Ms Pathak.
29. The contention that posts have not been created is equally
misconceived. The Resolution dated 5/10/1984 itself specifies different
designation with pay scales. Its implementation vide Circular dated
19/10/1984 is again on same lines. Both these documents also state that
strength of cadre of Assistant Engineer (Grade - II) shall be 25% of the
total number of posts of Junior Engineers. The Circular dated 19/10/1984
also restricts the posts of Assistant Engineers (Grade-II) to 25%. Existing
posts, to the extent proposed, get converted into better posts. At this
stage, Advocate Shri Jaiswal, who appears for the petitioners in Writ
Petition No.1398/1999, states that as a particular post in the erstwhile
cadre of Junior Engineer is not earmarked either for Assistant Engineer
(Class-II) or then for Sectional Engineer, observations of this Court in the
present judgment may prejudice the contentions of the petitioners. It is
apparent that the argument can be considered on its own merit in the said
writ petition as and when it is taken up for hearing.
30. In Writ Petition No.667/1999, a prayer is to direct the
Corporation to continue common seniority list of Junior Engineers till
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appropriate Rules are framed and approved. There is no prayer to direct
the Corporation to frame such Rules. Even in Writ Petition 3795/1997
there is no such prayer. However, in that writ petition on 25/6/1999,
while passing orders on Civil Application No.4482/1998, this Court has
called upon the respondent - Corporation to frame Rules for promotion.
The recruitment Rules were framed by the Corporation on 23.11.2001,
but the same were challenged before the Industrial Court in ULPA
No.462/2002 and the Industrial Court has quashed those Rules on
30/7/2007. The Resolution No.31 dated 12/4/1976, therefore, continues
to hold the field. It is, therefore, apparent that when the situation is still
governed by the said Resolution and impugned order of promotion is also
issued in terms thereof and parties have acted upon it, the objection that
unless and until Rules are framed the Resolution cannot be changed, is
misconceived. The General Body which has passed the Resolution is
competent to change it in accordance with law. No other objection to the
changed Resolution has been raised before this Court.
31. The relevant Clause regulating promotion to the post of
Deputy Engineer in Resolution No.31 dated 12/4/1976 shows that
promotions are to be effected from next below cadre. The words "Junior
Engineer" are mentioned in bracket after the word "cadre". As we have
noted above, in the erstwhile cadre of Junior Engineer itself, one gets post
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of Assistant Engineer (Class-II), Sectional Engineer and thereafter
unqualified Junior Engineer. The later Resolution of Corporation also
prescribes the ratio of 50 : 50 and insofar as zone of consideration
stipulated therein is of Sectional Engineer and Assistant Engineer. There is
no challenge to this change before us.
32. In this situation, all these developments necessitate
maintenance of separate lists insofar as Assistant Engineers (Class-II) or
Sectional Engineers are concerned. Unless and until there are such
separate lists, the above mentioned ratio or then requirement of effecting
promotion on the basis of seniority and merit cannot be fulfilled.
33. The stand of Nagpur Corporation before Lokayukta in reply
or then a letter sent by its Deputy Municipal Commissioner cannot be of
any assistance, when the Court of law has to construct the provisions
made vide Resolution No.31 dated 12/4/1976 as amended.
34. Advocate Shri Dhabe has pointed out a General Body
Resolution No.80 dated 28/11/1985. Copy of the said Resolution is
produced on record. Copy of the same is also available as Annexure-XII in
Writ Petition No.5112/1999 filed by Advocate Shri Dhabe on behalf of
intervenor - respondent no.9.
35. Perusal of the said Resolution shows that General Body of
Corporation unanimously resolved and approved that educational
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qualification, prescribed for the post to be filled in by direct appointment,
shall be mandatory. However, for the posts to be filled in by promotion
from amongst the employees of Corporation, those qualifications will not
be necessary. The said Resolution has no application in the present facts.
The post of Deputy Engineer is to be filled in by promotion from amongst
the Corporation employees. The educational qualification for Junior
Engineer is already prescribed and that post is to be filled in by direct
recruitment. Only for two years the post was permitted to be filled in
through Mistry and Timekeepers. Even if it is held that no educational
qualification was necessary for Mistry or Timekeepers to become Junior
Engineer, that by itself will not further the cause of objectors. Here, the
Corporation is not giving any additional weightage to the Diploma holder,
Junior Engineers or to graduate Junior Engineers and on the strength of
their seniority and merit in the proportion of 50:50, promotions are being
effected to the post of Deputy Engineer. Hence, deletion of requirement
of a particular educational qualification is not relevant and decisive here.
36. In this situation, the prayers made in Writ Petition
No.667/1999 cannot be granted. Said writ petition is accordingly
dismissed. Rule stands discharged. No order as to costs.
37. Insofar as the prayers in Writ Petition No.3795/1997 are
concerned, the promotions made are on 1/1/1998 and in terms of the
wp3795.97.odt
Resolution dated 2/12/1997. These promotions were on temporary basis.
During the pendency of this petition, the Corporation itself has accepted
the directions issued by this Court on 16.10.1998 while deciding Civil
Application No.4740/1998 as final and binding upon it. The different
seniority lists were accordingly prepared and on 26.2.1999, this Court
directed that future promotions, ad hoc or otherwise to the post of Deputy
Engineer from the post of Assistant Engineer (Grade-II) shall be made
only on the basis of final seniority list published on 6.2.1999. The
respondent - Corporation is also not opposing this arrangement.
38. In this situation, it is apparent that the temporary
promotions made cannot be sustained. The Corporation has to consider
the Assistant Engineers (Class-II), Sectional Engineers as per their
seniority in their respective seniority lists and promote them against the
vacancies in the cadre of Deputy Director. We direct that the said exercise
be completed within a period of three months from today.
39. Writ Petition No.3795/1997 is accordingly partly allowed
and disposed of. Rule is made absolute accordingly. No order as to costs.
JUDGE JUDGE
Deshmukh,
Kamal Jeswani &
Wadkar
