Municipal Corporation Of Greater ... vs Maharashtra Navnirman ...
2016 Latest Caselaw 5242 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION




                                                                                
                         WRIT PETITION NO. 5491 OF 2016 




                                                        
    1 Municipal Corporation of Greater Mumbai       )
    Mahapalika House, Mahapalika Marg,              )
    Mumbai 400 001                                  )

    2 Municipal Commissioner                        )




                                                       
    Municipal Corporation of Greater Mumbai         )
    Mahapalika House, Mahapalika Marg,              )
    Mumbai 400 001                                  )




                                          
    3 Asst. Municipal Commissioner                  )
    Municipal Corporation of Greater Mumbai
                                    ig              )
    Mahapalika House, Mahapalika Marg,              )
    Mumbai 400 001                                  )                  ..Petitioners
                                  
          Vs.

    1 Maharashtra Navnirman Mahapalika             )
    Kamgar Karmachari Sena                         )
            

    A Union duly registered under the Trade Unions)
    Act, 1926 having its office at Matoshree Towers)
         



    Padmabai Thakkar Marg,                         )
    Matunga, Mumbai 400 016.                       )

    2 Municipal Nursing & Para Medical Staff Union)





    A registered Trade Union, under the          )
    Trade Unions Act, 1926                       )
    having its office at 237-239                 )
    N. M. Joshi Marg, Opp Bawala Masjid,         )
    Lower Parel, Mumbai 400 013                  )                     ..Respondents 





    Mr. A. V. Bukhari, Senior Advocate a/w Ms Fauzia Bukhari and Mr. Vinod 
    Mahadik for the Petitioners

    Mr. Arshad Shaikh i/b Mr. K. S. Shetty for the Respondent No.2  

                                         CORAM :    R. M. SAVANT, J.

DATE : 14th SEPTEMBER, 2016 ORAL JUDGMENT

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1 Rule. With the consent of the Learned Counsel for the parties

made returnable forthwith and heard.

2 The Writ Jurisdiction of this Court under Article 226 of the

Constitution of India is invoked against the order dated 5-4-2016 passed by

the Learned Member of the Industrial Court, Mumbai by which order the

application Exhibit U-12 filed for interim reliefs came to be allowed and

resultantly the directions mentioned in the operative part of the said order,

came to be issued. The said operative part for the sake of ready reference is

reproduced hereinunder:-

"(1) The application Exh. U-12 is allowed.

(2) The Respondent Municipal Corporation is

directed to verify the testimonials of the 19 nurses appointed as stop gap arrangement from 2010 in

the process of 'walk in selection' and give them preference for their appointment as the staff nurses with effect from the date of appointment who were working in the various hospitals run by

the Respondent Municipal Corporation, before preparing the list of the selected candidates as per the advertisement dated 19-3-2010.

(3) The selection list of the staff nurses as per the

advertisement dated 19-2-2016 shall not be enforceable until the complainant staff nurses appointed on the contract basis are absorbed in the service from the date of their first appointment.

(4) The Respondent Corporation is at liberty to adopt any other mode for the selection of the complainant staff nurses who were appointed on contract basis, but till their selection in the

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service, their posts be kept vacant till the final decision of Complaint (ULP) No.214 of 2014.

(5) The cost of the application shall be in the main cause of the complaint.

(6) The complaint is adjourned for written statement of the Respondents."

3 It is not necessary to burden this order with unnecessary details.

Suffice it would be to state that the advertisement dated 19-3-2016 by which

the Petitioner Corporation advertised 533 posts of staff nurses triggered of the

filing of instant application for interim reliefs in the pending complaint filed by

the Respondent No.1-Union. The said pending complaint is Complaint ULP

No.214 of 2014. The said complaint has been filed by the Respondent No.1

Union espousing the cause of about 350 nurses working on contract basis in

the hospitals run by the Petitioner, Municipal Corporation. The said complaint

was filed in the aftermath of the earlier advertisement dated 12-7-2014 also

issued for recruitment of staff nurses, the post advertised then were about 887

out of which 90% of the posts were earmarked for the candidates who had

completed the nursing course from the Nursing Schools run by the Petitioner

Corporation and 10% of the posts were earmarked for the outsiders. In so far

as the said complaint is concerned, an application for interim relief being

Exhibit U-12 came to be filed therein and the interim reliefs claimed in the

said complaint were almost co-extensive with the interim reliefs sought vide

the instant application Exhibit U-12. The said application for interim reliefs

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came to be rejected by the Learned Member of the Industrial Court by order

dated 8-8-2014 for the reasons mentioned therein. The said order dated 8-8-

2014 was not carried further by the Respondent No.1 Union.

4 As indicated above the instant application Exhibit U-12 was in

respect of the 533 posts of staff nurses which were advertised vide

advertisement dated 19-3-2016, out of the said 533 posts 480 posts were

meant for the candidates from the Nursing Schools of the Petitioner Municipal

Corporation and 53 posts were meant for outsiders. The selection procedure

that was adopted was in the nature of walk in selection. The advertisement

inter-alia stipulated the dates on which the walk in selection were to be held in

respect of various categories of candidates. The said walk in selection

commenced on 29-3-2016 for the open category and thereafter on other dates

for the candidates belonging to other categories including the reserved

category candidates. The instant application Exhibit U-12 for interim reliefs

came to be filed on 4-4-2016, by the said date the walk in selection was

already over. The said application was opposed to on behalf of the Petitioner.

The Learned Member of the Industrial Court on the basis of the relief claimed

and on the basis of the pleadings of the parties framed issues which are three

in number, amongst which is the issue which is as follows : "who will suffer

greater hardship and injury". The said issue was answered in favour of the

Respondent No.1. To the said application Exhibit-U-12 was annexed a list of 19

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nurses as Exhibit U-14. The Learned Member of the Industrial Court heard the

said application and allowed the same by the impugned order dated 5-4-2016

and has issued the directions which have been mentioned in the operative part

of the impugned order and which directions have been already reproduced

hereinabove in the instant order.

5 The Learned Counsel appearing for the parties i.e. the Learned

Senior Counsel Mr. Bukhari appearing for the Petitioners and the Learned

Counsel Mr. Shaikh appearing for the Respondents, were heard at length. After

such hearing, the Learned Counsel after taking instructions from their

respective clients, i.e. the Learned Senior Counsel Mr. Bukhari from Mrs Maya

Vadgaonkar, Superintendent, Nursing Services who is in charge of the selection

process and the Learned Counsel Mr. Shaikh from Mr. Pramod Khamkar who

has been instructed by Mr. Pramod Rane the office bearer of the Respondent

No.2, are agreeable to the following order being passed:-

(i) The directions as contained in the operative part of the impugned order

dated 5-4-2016 are quashed and set aside and substituted by the following:

(a) Since by the ad-interim order dated 5-5-2016, passed in the above Petition

19 posts of staff nurses were directed to be kept vacant, the Petitioner

Corporation would consider the 19 nurses who are part of list Exhibit-U-14

annexed to the application Exhibit U-12 for appointment to the posts of staff

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nurses in terms of the eligibility and the selection procedure mentioned in the

advertisement dated 19-3-2016. The same to be done within two weeks from

date.

(b) In so far as the list of 514 nurses who have been selected is concerned,

since the appointment orders have been issued and since the appointees have

assumed their respective posts, their position would be unaffected.

(ii) The direction as contained in clause (i)(a) of the instant order is without

prejudice to the rights and contentions of the Respondent No.1 in the said

Complaint ULP NO.214 of 2014 as also without prejudice to the defences if

any of the Petitioner Corporation in the said Complaint.

(iii) However, it is clarified that the same would not be an impediment for the

Petitioner Corporation to consider the said 19 nurses for appointment as staff

nurses in terms of the advertisement dated 19-3-2016.

6 The Petition is allowed to the aforesaid extent. Rule is accordingly

made absolute with parties to bear their respective costs.

                                                                   [R.M.SAVANT, J]




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