Shri Yashwantrao Sadashiv ... vs Mira Bhayandar Municipal ...
2017 Latest Caselaw 483 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION 
                     WRIT PETITION NO.12913 OF 2016


 1. Yashwantrao Sadashiv Deshmukh,
     Age 44 years, D-203, Chandganga
     C.H.S. Ltd., Near Swami
     Vivekanand School, Gorai-1,
     Borivali (W), Mumbai-400 091.

 2. Umesh Yuvraj Avchar,
     Age 39 years,
     R/at Omkar Complex, A-Wing-404,
     Bldg. No.1, Shahad, Near R.O.B.,
     Shahad (W).

 3. Vikas Vishnu Parab, 
     Age 35 years,
     R/at 1405, Sanghavi Exotica
     C.H.S. Ltd., Maratha Colony Road,
     Near Jame Theatre, S.V. Road,
     Dahisar (E), Mumbai-400 068.

 4. Shrikrishna Sadashiv Mohite,
     Age 42 years, R/at B-1005,
     Jangid Heights, Ghodbunder Road,
     Kapurbawadi, Thane (W).

 5. Deepak Vitthal Jadhav,
     Age 39 years,
     R/at B-501, Kailas Mansarovar,
     Tembha Road, Bhayander (W),
     Thane - 401 101.

 6. Uttam Yashwant Randive,
     Age 39 years,
     R/at B-406, Sunrise Plaza,
     Kasturi Garden, Bhayander (W),

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     Thane - 401 101.

 7. Arvind H. Patil,
     Age 42 years,
     R/at 602, Prathamesh Orchid,
     Tembha Road, Bhayander (W),
     Thane - 401 101.

 8. Prashant P. Jankar,
     Age 33 years, R/at F-3,
     Vinayak Thakkar Complex,
     Opp: Vimal Dairy,
     Navghar Phatak Road,
     Bhayander (E).

 9. Yatin V. Jadhav, 
     Age 34 years, R/at A/103,
     Bhairav Srusthi, 150 Ft. Road,
     Bhayander (W).

 10.  Sachin N. Patil,
        Age 30 years, R/at Vakratund
        Apartment, J.P. Thakur Marg,
        Bhayander (W).

 11.  Sachin L. Pawar,
        Age 38 years, R/at C-712,
        Shri Salasar Radha Vallabh
        C.H.S. Ltd., Near D' Marg,
        150 Ft. Road, Bhayander (W),
        Thane - 401 101.

 12.  Chetan B. Mhatre,
        Age 39 years, R/at 303/3,
        Sector No.3, Shanti Garden,
        Opp: Surya Shopping Center,
        Mira Road (E) -401 107.

 13.  Bhupesh D. Kakade,
        Age 41 years, R/at B-103,

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      Raj Amrut, Vijay Home Complex,
      Amrutwani Sastang Marg,
      Bhayander (W).                                       ....  Petitioners

          - Versus -

 1. Mira Bhayandar Municipal Corporation
     Through the Commissioner,
     Chhatrapati Shivaji Marg,
     Bhayandar (W), Dist. Thane.

 2. The State of Maharashtra
      through Department of
      Urban Development,
      Mantralaya, Mumbai.                                  ....  Respondents


 Mr. R.S. Apte, Senior Counsel i/by Mr. Ashutosh
 R. Gole for the Petitioners.
 Mr. N.R. Bubna for Respondent No.1.
 Ms Sushma Bhende, Asstt. Government Pleader,
 for Respondent No.2.


                                     CORAM: S.C. DHARMADHIKARI &
                                                    B.P. COLABAWALLA, JJ.

DATE : MARCH 06, 2017

ORAL JUDGMENT (Per Shri S.C. DHARMADHIKARI, J.) :

1. This writ petition was argued at great length on the

last date and it was placed today for passing orders. Hence, rule.

The respondents through their respective Advocates waive

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service. By consent, rule is made returnable forthwith and the

petition is taken up for final disposal.

2. By this writ petition under Article 226 of the

Constitution of India, the petitioners, who are the employees of

the Mira Bhayandar Municipal Corporation, have challenged the

order, dated 23-6-2016, seeking to withdraw certain benefits

accruing to them when in the service of this Corporation.

3. The facts lie in a very narrow compass. The

petitioners are not disputing that they were appointed as Junior

Engineers in the first respondent/Municipal Corporation. They

were appointed by orders passed in the year 2004. One of the

orders, copy of which is at page 15 of the paper-book, invites the

attention of the petitioners to the conditions and which are

enumerated therein.

4. The petitioners submit that in the year 2006 and

particularly on 30-8-2006, the second respondent-State through

its Urban Development Department issued a circular. That

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circular, copy of which is at Annexure-B, requires the petitioners

and others to clear an examination. The circular enumerates that

the exam has to be cleared by such of those who are appointed

as Junior Engineers. For future promotions, including the career

advancement benefits the said examination would have to be

cleared. The questions which have been raised and for the

State's consideration is, whether any exemption can be granted

from appearance in the said examination? and secondly, what

would be the effect and impact on the future of such of the

employees who do not clear this examination? Both have been

answered by this circular dated 30-8-2006.

5. The petition proceeds on the footing that the

respondent/Municipal Corporation has never adopted the

Maharashtra Civil Service Rules. It is the internal Service

Regulations of the first respondent/Corporation which is

applicable to the services of the petitioners. The said circular

was never approved and ratified by the General Body of the

Municipal Corporation. The petitioners, in para 5 of the writ

petition, state that this circular was never brought to the notice

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of the petitioners by the Municipal Corporation. They were

unaware of its existence. The petitioners then say that the

Corporation's own Service Regulations, which were sanctioned

in the year 2014, came into effect from the same year. The

Service Regulations contained a provision similar to the circular

about the requirement of passing of a technical examination.

However, the Service Regulations specifically state that the

Corporation must educate the affected employees by informing

them about the curriculum and syllabus of the examination,

conduct training courses and give them at least time of three

terms to clear the examination. The Service Regulations exempt,

those who have attained the age of 45 years, from appearance at

the above examination.

6. Reliance is heavily placed upon the Service

Regulations and duly approved and published in the Official

Gazette in the year 2014. A copy of this is annexed at page 24 of

the paper-book.

7. Then the petitioners accuse the Municipal

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Corporation, the first respondent, of not informing the

petitioners about any syllabus or training programme. The 40

hours of training has never been provided.

8. The petitioners were, therefore, surprised to receive

a circular dated 30-10-2015 (Annexure-D) which mandates that

parties like the petitioners should clear this examination, else

they would not be considered for promotional benefits and

similar other perquisites. Even their increments can be stopped.

It is in these circumstances that the petitioners are informed that

the examination which has been prescribed must be cleared

within a period of four years and three attempts from the date of

issuance of the circular.

9. The petitioners also state that a further

communication to the Corporation dated 6-11-2015 (Annexure-

E) is by one Junior Engineer and he brings to the Corporation's

notice that in the appointment order there is no condition

prescribed of clearing any examination. Secondly, the circular,

dated 30-8-2006, has been issued prior to the appointment of

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the petitioners. That is why the new condition would not apply

to those who have been appointed prior to that date. Thirdly,

the Municipal Corporation's Service Regulations which were

approved by the General Body in the year 2008 have not

prescribed any examination for the prior appointees, but states

that the said requirement would come into force on the date the

Regulations are published in the Official Gazette. Lastly, none of

the arrangements and that are contemplated, namely, making

known and much prior in point of time the curriculum and

syllabus and holding of training sessions have been completed. It

is in these circumstances and in the absence of any guidance

that the said circular would not bind the petitioners.

10. It is pointed out that all but one petitioner were

appointed prior to the issuance of the circular dated 30-8-2006.

11. In para 11 of the writ petition, it is contended that

the General Body of the first respondent passed a Resolution

bearing No.103 in a meeting held on 30-1-2016, amending the

existing Regulations. Then, an exemption has been provided to

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such employees appointed prior to 2005 from clearing the

technical examination. The said amended Service Regulations

were forwarded by the Municipal Corporation to the State for

approval. The writ petition, therefore, proceeds on the footing

that the petitioners bona fide believed that they are not required

to appear and clear any examination, more so and in the light of

the Municipal Corporation's subsequent acts.

12. That is how they would challenge the impugned

order, copy of which is at page 44 of the paper-book, where-

under the Municipal Commissioner informs the petitioners that

having failed to clear the prescribed examination they would

have to be proceeded against. There is a serious irregularity and

as noticed in the Audit Report for the year 2011-12 {para 9(d)}

which states, in clearest terms, that such of those engineers who

have not cleared this examination, the increments due and

payable to them were still released. That is why they should not

be allowed to retain the benefits. That is why from 1-7-2016 the

increment which was erroneously granted would be recovered

by making appropriate adjustments from the salaries payable to

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such employees.

13. It is on this footing that the writ petition challenges

the impugned order.

14. Mr. Apte, learned Senior Counsel appearing on

behalf of the petitioners, would submit that the petitioners have

averred in the writ petition that their appointments are prior to

the issuance of the Circular dated 30-8-2006. Therefore, this

circular is inapplicable to them. However, this is without

prejudice to the contention that the Government has no power

to issue a circular of this nature so as to bind the Municipal

Corporation. The power of control and supervision vesting in the

State Government would not enable it to issue such circulars

and enforcing them. Once there is no power to issue the circular,

then, the question of its applicability does not arise.

Alternatively, it would not apply to the appointees prior to the

issuance of the circular.

15. Further alternatively, Mr. Apte would submit that

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before the impugned order was passed, the Municipal

Corporation has given no opportunity to the petitioners. He

would submit that the opportunity that is envisaged is to inform

well in advance the parties like the petitioners that they would

be required to clear the examination. They must be given

reasonable time to prepare themselves. The time to prepare can

be granted provided there is a defined curriculum or syllabus.

The word "prescribed" employed in the Government circular

would mean prescribed either by way of a prior rule or further

communication in the nature thereof setting out the complete

curriculum, programme or schedule of the examination, the

training courses and other particulars are made available. The

Municipal Corporation should make the training arrangements.

When nothing of this kind has been done, then, the petitioners

cannot be proceeded against. Now, a penalty is being imposed

on them. If such is the nature of the action, then the principle of

fairness, equity and justice requires that the impugned order be

quashed and set aside.

16. Further alternatively, he would submit that the

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Municipal Corporation has prescribed examination in its own

Service Regulations and for the first time in the year 2014. The

Service Regulations of the said Municipal Corporation were

sought to be further amended or amplified and that is clear from

the General Body Resolution No.103, dated 30-1-2016. That has

also been sent for approval of the State Government. In the

circumstances, the belief that the petitioners entertained was

that, they are not required to clear any examination as of now or

any examination provision would not apply to their

appointments; that they are not required to abide by any

circulars including that of the State Government. It is in these

circumstances that Mr. Apte would submit that the petitioners

be protected and the petition be allowed.

17. Mr. Bubna, appearing for the first respondent

contesting party, would submit that the requirement of clearing

the examination or a circular prescribing such examination for

career advancement or promotional benefit is implicit in the

power of the employer to appoint and to promote candidates. If

for judging their relative merit, a process is carved out by which

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exams are prescribed, the exams have to be cleared and on the

marks obtained in such examinations, together with the

performance in the oral interviews, promotional benefits or

career advancement opportunities are provided, then, in tune

with the mandate of Articles 14 and 16 of the Constitution of

India, the action of the Municipal Corporation, in particular, a

public body deserves to be upheld. It is a public body and which

acts in the interest of public administration. It knows how best

to arrange its affairs. Mr. Bubna would submit that in the entire

petition though a faint attempt is made to challenge the power

of the Government, there is no challenge to the circular. There is

nothing by which a legal point is raised for the first time. There

is no foundation in the pleadings for the same. How the State

Government is not empowered to prescribe this examination by

issuance of a circular is not amplified and clarified at all.

Therefore, the circular is binding. Secondly, the Municipal

Service Regulations, as proposed to be amended by the first

respondent/Municipal Corporation by a General Body

Resolution, are sent for approval but not approved by the State

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Government. Therefore, the earlier circular would be binding. In

such circumstances, Mr. Bubna would submit that there is no

merit in the writ petition and it be dismissed.

18. We have perused the petition and all the annexures

thereto with the assistance of Mr. Apte and Mr. Bubna. We have

also perused the affidavit in reply.

19. We are in agreement with Mr. Bubna that in the

entire petition though a faint attempt is made to question the

power of the Government, there is nothing indicated therein as

to which provision of the Maharashtra Municipal Corporations

Act, 1949 (for short, "the said Act") disables the State

Government from issuing such circulars. We have also not seen

any serious attempt made to question the authority of the State

Government for what we have on record are the elaborate

provisions contained in the said Act. The petitioners cannot

dispute that by Section 448 onwards, which are contained in

Chapter XXVIII, titled as Control, varied powers are conferred in

the State Government. The power of the State Government to

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require performance of duties in default of any municipal

authority are enumerated in Section 448. By Section 449,

expenses of measures enforced under section 448 can be

recovered by the State Government. By Section 450, the State

Government has been conferred with the power to call for

extract from proceedings, etc.. By Section 450A, the State

Government has been conferred with the power to issue

instructions or directions. This power is an over-riding one. It

over-rides anything contained in the Act. The State Government

has a discretion to issue to the Municipal Corporation general

instructions as to matters of policy to be followed by the

Corporation in respect of its duties and functions, and in

particular it may issue directions in the larger public interest or

for implementation of the policies of the Central Government or

the State Government and the National or the State level

programmes, projects and schemes. The issue of such

instructions or directions and which would bind the Corporation

and its duty to enforce or give effect to them, is doubted, then,

the power is to be exercised as in the State Government itself.

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Then, by Section 451, there is power of the State Government to

suspend or rescind any Resolution or order of the Corporation or

other authority in certain cases. Apart from larger power to

dissolve Corporation and conferred by Section 452 and a further

enabling power by Section 452A, what we have under Chapter

XXIX, titled, Rules, Bye-laws, Regulations and Standing Orders is

a power in the Municipal Corporation to alter or make additions

to the rules prescribed in Schedule-D. Then, by Section 455, the

Corporation has power to make rules subject to sanction of the

State government. The power to make, add to, alter or rescind

any rule under Section 454 shall be subject to the sanction of the

State Government and to the condition of the rules being made

after previous publication.

20. From Section 456 it is evident that the State

Government may at any time require the Corporation to make

rules under Section 454 in respect of any purpose or matter

specified in Section 457 and if the Corporation fails to comply

with such requisition within such reasonable time as may be

fixed by the State Government, the State Government may, after

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previous publication, make such rules and the rules so made

shall, on their final publication in the Official Gazette, have the

effect as if enacted in the said Act. There is a special power

conferred in the State Government to make rules. The argument

is that the circular in the present case is not in tune with this

legal mandate. In that regard, a careful perusal of the circular

would indicate that the Municipal Corporation has appointed

the petitioners as Junior Engineers by various orders. The

petitioners after being appointed were not informed, according

to them, about this circular of 30-8-2006.

21. We do not see how the State Government can be

said to be denuded the power of the circular merely because the

Corporation fails to reveal the contents of this circular to the

employees like the petitioners. We are not considering the

power of the State Government. That issue can be considered

provided any issue is raised in that regard by the Municipal

Corporation. The Municipal Corporation feels that the circular of

the State Government dated 30-8-2006 does bind it. In fact, if

this circular is perused, it is merely clarificatory in nature. It

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proceeds to answer certain queries of certain Municipal Councils

and Municipal Corporations. These Municipal Councils and

Municipal Corporations were of the clear opinion that the

decisions of the State Government and the directions issued by it

are binding on them. They only sought certain clarifications.

Firstly, they sought a clarification as to prescription of age-limit

or whether the Corporation is obliged to hold an examination

for such of the candidates who have completed a specified age

of their life. In answering that the Municipal Corporation's

request to pin down the requirement to 40 years has not been

accepted. The circular of the State Government says that those

of the employees who have attained 45 years or have completed

45 years of their life, they can, at best, be exempted from the

requirement. On the second question as to whether the

Corporation would have to act and recover the benefits already

accrued or granted to such of the candidates who failed to clear

the examination, it is once again reiterated in the circular that

the Corporation must stop their increments and should not grant

them any available benefits on par with the other employees if

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the appointees fail to clear the examination.

22. Then, there is a clear stipulation in this circular that

such of these employees who have not cleared the examination,

irrespective of their appointments which may be prior to the

issuance of this circular or otherwise, they must clear the

prescribed examination within a period of four years with three

chances from the date of issuance of the circular.

23. We have no doubt in our mind that this circular

alone cannot be questioned. This circular only clarifies the

doubts expressed by some Municipal Corporations and

Municipal Councils in the State. Each of such Councils and

Corporations proceed on the footing that there are enough

powers in the State Government to issue the circular and to

enforce it. Each of these Councils and Corporations in the State

proceed on the footing that the circular and equally the

clarifications bind them. We do not see how the employees can

then raise any grievance. It is inconceivable that the petitioners

who have been appointed in the year 2004 are not aware of the

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contents of the circular or the issuance thereof. They must have

noticed on several occasions candidates like them appearing for

the examination and clearing it. They relied upon the

Corporation's alleged attempts to assist them. There is nothing

on record which would indicate that the State Government lacks

the power or that the Municipal Corporation has ever

questioned the authority of the State to issue the circular and to

prescribe an examination for the candidates like the petitioners.

The petitioners then rely upon the Municipal Corporation's

Examination Rules and Regulations which have been published

in the Official Gazette (Page 24). Upon a perusal of these

Regulations, it is evident that these Regulations come into play

after the circular of the State Government. Till then the circular

of the State Government was on record. The requirement of

passing a technical examination and stipulated in the Service

Regulations of the Municipal Corporation may have been issued

in the year 2014, but merely because such an act was performed

by the Municipal Corporation in the year 2014, it does not mean

that the circular of the State Government ceases to have any

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effect. In fact in the Audit carried out in the year 2011-12, the

State Government noticed that despite its binding effect, several

Municipal Corporations and Municipal Councils in the State

have not abided by the same and conducted or held an

examination, or though such examinations have been held from

time to time, it has retained such of the employees in

promotional posts or continued their benefits, though they failed

to clear this examination. We do not see how reliance upon the

Municipal Service Regulations and Gazette Notification would

mean that the earlier stipulation and contained in the circular

was never binding on the petitioners.

24. In fact what the Municipal Service Regulations

provide is that from the date of its issuance the candidates

falling within the purview of the same should clear the

examination. The circular, at page 28, therefore enumerates

that requirement. It is in relation to that, that the petitioners

forwarded certain representation and we have enumerated the

contents thereof in the foregoing paragraphs. The other

representation and copy of which is at page 30 of the paper-

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book would indicate that the petitioners were aware that there

was circular of the State Government dated 30-8-2006. They

were further aware that the Municipal Service Regulations and

approved in the year 2008 have been forwarded to the State

Government and the Gazette Notification would apply. This

would make them applicable from the date of their publication

in the Official Gazette. It is a general complaint made by them,

without any particulars, about not providing the details of the

syllabus or the training session. They do not know the nature of

the examinations or the place where they are going to be

conducted, is just an excuse. The inevitable was known to them.

That is why we do not see any reason for the impugned order to

be struck down. We have seen that the impact of non-clearance

of the examination by employees like the petitioners was made

known to the Municipal Corporation. It still continued to

accommodate the parties like the petitioners. It did not insist on

their clearance of the examination even when it revised its

Regulations. It was clear that the audit objections were staring

at the Municipal Corporation. The audit objections were indeed

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serious. The monetary benefits continued to be extended to such

of the employees, but it did not abide by the Government

circular dated 30-8-2006 and the prior one issued in that regard.

It is, therefore, apparent that some day or the other

consequences had to fall and they indeed have now fallen,

though belatedly.

25. In the affidavit in reply the Corporation has clarified

that the circular, dated 30-8-2006, has been issued by the Urban

Development Department for clarifying the doubt expressed by

various Corporations regarding professional examination. The

circular makes it compulsory for concerned engineering

employees to clear professional examination within stipulated

time. The circular further states that increment of concerned

employees who fail to clear the examination within the

stipulated time therefor will have to be stopped. The further

circular, dated 9-11-2009, of the State Government clarified that

increment of employees who fail to clear the examination in four

years/three attempts from the date of the said circular would

have to be stopped. Thus, there is a further circular and issued

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following the earlier circular dated 30-8-2006. The further

circular is dated 9-11-2009. The State was thus very considerate

and continued to accommodate the employees like the

petitioners. The petitioners appear to be taking undue advantage

of the same. The Model Draft Recruitment Rules framed by the

State Government though were adopted by the Corporation in

the year 2008, it had to further modify them after considering

the suggestions and objections received. These suggestions and

objections were invited by a newspaper notice of 4-7-2009.

Thereafter, the Final Draft Recruitment Rules of the Corporation

were forwarded to the State Government. They were approved

in the month of March, 2014. These Rules also make it

compulsory for the professional examination to be cleared. That

is how on 30-10-2015 the concerned engineering employees

were called upon to clear this examination.

26. The Municipal Corporation's General Body, without

any approval of the Municipal Administration, passed a

Resolution to amend the Recruitment Rules. The Corporation's

General Body sought to exempt the employees appointed prior

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to 2005 from the requirement of clearing the professional

examination. This General Body Resolution has been forwarded

to the State Government and it is yet to sanction it.

27. It is in these circumstances that we are of the clear

opinion that there is no merit in the writ petition. Firstly, the

Municipal Corporation is right in its objection that there is no

challenge to the circular. Secondly and correctly the Municipal

Corporation does not question the power of the State

Government to either issue a circular or to clarify the doubts

expressed by the Municipal Corporations in the State by issuance

of another circular. Thirdly, the Municipal Corporation feels that

even the earlier circular and the clarification are binding on it.

Fourthly, it must implement this circular, particularly in the light

of the serious audit objections raised regarding its functioning

and working. Lastly, it understands that in the event it continues

to accommodate the employees, it would suffer adverse

consequences and equally the employees. Any attempt of the

General Body, therefore, to amend the existing Regulations of

the Municipal Corporation which, in any event, prescribe an

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examination from the year 2014, which also has not been taken

by the petitioners, then, it must visit the petitioners with the

consequences of not clearing the examination by depriving them

of their increments.

28. In such circumstances, ordinarily we would have

thought that the petitioners seek a final opportunity to clear the

examination and in the event that is not cleared by them, they

would be ready to face the consequences. Instead, they decided

to go ahead with their challenge, as raised in the writ petition.

29. In the circumstances aforementioned and for the

reasons set out above, we find no merit in the writ petition. It is

dismissed. Rule is discharged. There will be no order as to costs.

30. Despite our above conclusion, purely in the facts and

circumstances of the present case and peculiar to it, we direct

that in the event the professional examinations are not held as

yet, but are likely to be held in the near future, then, the

petitioners be allowed one chance to appear for the same and in

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the event the petitioners are successful, none of the

consequences as flowing from the circulars referred to above

shall be visited on them. In the event they fail to clear the

examination despite attempting or do not take the examination

at all, though permitted by us as a special case, then, all

consequences shall follow and the petitioners would be visited

with withdrawal of the benefits and already earned in the form

of increments, etc.. In such an eventuality, the Municipal

Corporation's powers under the circulars, Rules and Regulations

are duly reserved and for being exercised against the petitioners.

(B.P. COLABAWALLA, J.) (S.C. DHARMADHIKARI, J.)