Bombay High Court
Kailash Raghunathrao Kadu vs Director Of Municipal Council & ... on 4 May, 2016
Bench: B.P. Dharmadhikari
1 wp539.05
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.539 OF 2005
Kailash Raghunathrao Kadu,
aged about 40 years,
occupation : service,
r/o Shivaji Nagar, Chandur
Bazar, Taluq Chandur Bazar,
District Amravati. ig ... Petitioner
- Versus -
1) Director of Municipal Council
Administration, Maharashtra State,
Directorate of Municipal Council
Administration, Government Transport
Service Building, 3rd Floor,
Sir Pochkhanwala Road, Warali,
Mumbai - 400 025.
2) Regional Director of Municipal
Council Administration and
Divisional Commissioner,
Amravati Division, Amravati.
3) Director of Vocational Education
and Training, Maharashtra State,
3, Mahapalika Road, P.O. Box
No. 100 036, Mumbai 400 001.
4) Municipal Council, Chandur Bazar,
through its Chief Officer,
Municipal Council, Chandur Bazar,
Taluq Chandur Bazar, District
Amravati.
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5) Principal, Municipal Council
Junior Science College,
Chandur Bazar, Taluq Chandur
Bazar, District Amravati.
6) Faqruddin Mohd. Hussain,
Ex-Councillor Nagar Parishad,
Chandur Bazar, District
Amravati. ... Respondents
ig -----------------
Shri P.S. Patil, Advocate for petitioner.
Shri C.A. Lokhande, Assistant Government Pleader for
respondent nos.1 to 3.
Shri N.R. Saboo, Advocate for respondent nos.4 and 5.
----------------
CORAM : B.P. DHARMADHIKARI AND
P.N. DESHMUKH, JJ.
DATED : MAY 4, 2016
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
Heard Adv. Patil for petitioner, Shri Lokhande,
learned Assistant Government Pleader for respondent
nos.1 to 3 and Adv. Saboo for respondent nos.4 and 5.
Nobody appears for respondent no.6 intervener.
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2) Facts are not much in dispute. The Municipal
Council has started Minimum Competency Vocational
course (MCVC) in its Junior College and petitioner has
been appointed to teach Electronics as Trade in that
College. He was sought to be terminated by order
dated 17/1/2005 because of directions issued on
10/1/2005 by the office of respondent no.2. This Court
has on 14/2/2005 while issuing notice before admission
protected his employment and that interim order
continues to operate even today.
3) The petitioner has joined employment as per
appointment order dated 17/1/1987 and since then he
is continuing in employment.
4) Adv. Patil for petitioner submits that because
of absence of coordination between Offices of
respondent no.3 Director of Vocational Education and
Training and respondent no.1 Director of Municipal
Administration, problem has cropped up. The
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respondent no.3 granted permission to Municipal Council
to start vocational courses on 22/7/1986. Staffing
pattern and qualification were prescribed by that
Department on 31/7/1979 itself. After this permission,
Municipal Council published an advertisement on
21/12/1986. Interviews were conducted and thereafter
petitioner came to be appointed on 17/1/1987.
ig Adv.
Patil invites our attention to Resolution dated 27/4/1988
passed by General Body of Municipal Council
regularising services of petitioner from the date of his
appointment, thereby cancelling the intervening
terminations. He further states that in terms of
Government decision as incorporated in Demi Official
letter dated 16/3/1994, requirement of possessing
Certificate of Instructor's Training (C.T.I.) has been in
force in respect of appointments made in academic
session 1997-98. As appointment of the petitioner is in
earlier year, Government found that he could not have
been declined approval. This Government decision has
been also followed earlier on 5/11/1988 by District
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Vocational Officer where he has observed that in
respect of petitioner, this requirement of possessing
C.T.I. qualification has been relaxed.
5) Inviting our attention to the directions issued
by respondent no.2 on 10/1/2005, it is contended that
one of the reasons therein is absence of C.T.I.
qualification with petitioner and that reason is non
existent. The second reason is absence of approval
under Section 76(1) of The Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships
Act, 1965 (hereinafter referred to as "the 1965 Act").
Adv. Patil submits that as it is respondent no.3, which
has allowed opening of M.C.V.C. and staffing pattern as
also qualification and pay scales are prescribed by that
Department, provisions of Section 76(1) of the 1965 Act
are not attracted. He further points out that when
advertisement was issued in December 1986 or
appointment order was issued to the petitioner on
17/1/1987, Regional Subordinate Selection Board was
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not functioning. That Board came to be constituted for
the first time on 19/5/1988 with effect from 10/2/1988.
He submits that thus recruitment made after public
advertisement cannot be viewed as a back door entry.
According to him, in this situation, termination order
needs to be quashed and set aside and petitioner
needs to be treated ig as regular and permanent
Instructor.
6) Upon instructions, Adv. Patil states that though
petitioner is continuing in employment, he and one
Mr. Tiwari are being paid only basic wages as per pay
scale without dearness allowance or other allowances.
7) Shri Lokhande, learned Assistant Government
Pleader is opposing the petition. He states that as
employment is with Municipal Council, provisions of
Section 76 of the 1965 Act cannot be avoided and
allowed to be defeated.
8) Adv. Saboo appearing for respondent nos.4
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and 5 states that relaxation of C.T.I. qualification by
the competent Authority is not being disputed by
respondent no.4. However, as the Course is being run
on no grant basis, Municipal Council has to spend from
its own pocket and hence, previous permission of
Regional Director of Municipal Administration before
opening a new Course and before accepting new
liabilities was must. He submits that permission given
by respondent no.3 Director of Vocational Education
and Training only enables Municipal Council to move
respondent nos.1 and 2 for granting administrative
approval for commencing such Course so as to enable
it to incur further expenditure upon it. He contends
that on 3/12/2004 Municipal Council has accordingly
submitted a proposal to State Government under
Section 76(1) of the 1965 Act and that proposal is still
not rejected by the State Government. He, therefore,
states that in this situation, it is only because of various
Resolutions passed by General Body and Standing
Committee that Chief Officer of Municipal Council has
8 wp539.05
taken certain steps, but those steps are not binding in
law upon Municipal Council. According to him,
employment of petitioner is equivalent to back door
recruitment and hence, petition is liable to be
dismissed. He also states that directions issued by
Regional Director of Municipal Administration on
10/1/2005 are not in challenge before this Court.
9) Adv. Patil for petitioner, in reply, submits that
reasons for termination of petitioner flow from
directions in letter dated 10/1/2005. Therefore, said
letter is very much in dispute before this Court. He
reiterates that when one Department of Government
has given permission to Municipal Council and about 60
students are taking education even today in M.C.V.C.
and Municipal Council is running that course since last
about 18 years, effort to fall back on Section 76(1) of
the 1965 Act should not be sustained. However, upon
instructions and only to show bonafides, he submits
that petitioner shall not claim arrears on account of
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allowances from Municipal Council, if proposal
submitted by Municipal Council on 3/12/2004 is
directed to be considered by the State Government
within reasonable time and it is rejected by the State
Government. He states that in case of such rejection,
petitioner will approach this Court again with all
appropriate challenges and that remedy should be left
open. He points out that Mr. Tiwari appointed as
Lecturer in Electronics after similar termination
approached State Government and State Government
has already granted him relief and he continues to
function even today.
10) In the light of arguments, we find that
insistence upon C.T.I. qualification in the impugned
order is unsustainable and decision of District
Vocational Officer dated 5/11/1988 or decision
incorporated in Demi Official letter dated 16/3/1994 is
not in question before this Court.
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11) Therefore, only issue to be looked into is
whether permission under Section 76(1) of the 1965
Act for starting such course or for creation of post was
essential ? The fact that Regional Subordinate
Selection Board was not in existence at the relevant
time is also not disputed by Municipal Council. Hence,
contention that petitioner has entered service through
back door also appears to be unsustainable.
12) The provisions of Section 76(1) of the 1965 Act
stipulate that Municipal Council may, with sanction of
Director, create such posts of Officers and servants as it
shall deem necessary for efficient execution of its
duties under the said Act. Permission given by
respondent no.3 Director of Vocational Education and
Training is not in dispute. In the light of this provision,
the State Government has to find out whether
Municipal Council is in a position to shoulder additional
burden cast upon it because of new post or new
adventure being undertaken by it. The M.C.V.C.
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allowed to be commenced is on no grant basis and,
therefore, State Government is not releasing any
additional funds to Municipal Council for the said
purpose. Municipal Council is expected to arrange for
funds to pay salary and other expenditure to conduct
that course through its own sources. The State
Government has
ig also prescribed a ceiling on
administrative expenditure, which can be incurred by
Municipal Council out of its earnings. In this situation,
contention that provisions of Section 76(1) of the 1965
Act are not attracted is misconceived and erroneous.
Permission given by respondent no.3 only enables
respondent no.4 to commence the Course, but then
before undertaking any expenditure on that Course,
permission of State Government under Section 76(1) of
the 1965 Act to create necessary posts is essential.
There is no conflict in powers being exercised by
Director of Municipal Administration under Section
76(1) of the 1965 Act on one hand and respondent no.3
Director of Vocational Education and Training on the
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other hand.
13) In this situation, considering the fact that
Municipal Council is running the Course since last about
18 years and students are being benefited, we are
inclined to direct respondent no.1 to consider proposal
sent to it by Municipal Council on 3/12/2004 for its
appropriate evaluation. The petitioner before this Court
has shown his bonafides by placing on record his
readiness and willingness not to burden public revenue
further in case proposal is rejected by the State
Government.
14) Accordingly, we direct respondent no.1 to
consider proposal sent to it by respondent no.4
Municipal Council vide Outward No.631 dated
3/12/2004 at Annexure XIX with writ petition and to
take suitable decision upon it within a period of four
months after communication of this order to it. The
decision shall be taken after extending opportunity of
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hearing to respondent no.4 Municipal Council as also
present petitioner. We leave respondent no.1 free to
hear other Authorities/employees including Mr. Tiwari.
15) Subject to such consideration, the impugned
order of termination dated 17/1/2005 is quashed and
set aside.
Needless to mention that all contentions
raised by Adv. Patil for petitioner are kept open and
can be looked into in future if occasion therefor arises.
The writ petition is thus partly allowed and disposed of.
No costs.
JUDGE JUDGE
khj
