Bombay High Court
Mr. Anil N. Bane And Ors vs State Of Maharashtra And Anr on 22 November, 2017
Bench: S.C. Dharmadhikari
Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No. 1944 of 2014.
Mr. Harekrishna Kalaji Teli,
202, Nilkanth Valley- "F",
Lal Chowki, Kalyan (East)
Thane and others ..Petitioners.
Versus.
1) State of Maharashtra
2) Kalyan Dombivali Municipal Corporation,
Kalyan, Through : Its Commissioner ..Respondents.
WITH
WRIT PETITION No. 1945 of 2014.
Mr. Anil N. Bande,
406, Matroshi Darshan,
Jarimari Gate, Behind Tisai
Hospital, Teesgaon, Kalyan (East)
District Thane and others ..Petitioners.
Versus.
1) State of Maharashtra
2) Kalyan Dombivali Municipal Corporation,
Kalyan, through : Its Commissioner ..Respondents.
Ms. Neha Bhide, Advocate for the petitioners.
Mr. Y.M. Pendse for the petitioners.
Mr. A.S. Rao for Respondent No.2.
1/14
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Mr. P. P. More, Asstt. Government Pleader, Writ
Cell R. No.1 for respondent.
CORAM : S.C. DHARMADHIKARI &
SMT. BHARATI H. DANGRE, JJ.
th
RESERVED ON: 30
October, 2017.
PRONOUNCED ON : 22 nd November, 2017.
JUDGMENT (Per: Smt. Bharati H. Dangre,J)
1 Both these writ petitions revolve around the same set of
facts and pray for similar reliefs, hence they are taken up together
for hearing and disposed off by this common order.
2 The petitioners have approached this court, being
aggrieved by the alleged discriminatory and arbitrary action of
Respondent No.2 - Kalyan Dombivali Municial Corporation
( hereinafter referred to as "the Corporation") in denying promotions
to the petitioners, and the petitioners have sought directions to
promote them in accordance with the seniority list published on
01.02.2013, without complying with the requirements of the Rules
framed by the State Government, pertaining to Respondent No.2 in
relation to the recruitment and classification of services.
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3 Certain facts are undisputed in both the petitions. The
petitioners are in the employment of the Corporation and occupying
various posts such as Clerk-cum-Typists cum Computer Operator and
are in continuous service of respondent no.2 Corporation for
considerably long period of time and their appointments were
effected as early as in 1974 and necessarily all the petitioners are
appointed prior to 1997. The record reflects the date of
appointment of the petitioners and the date on which they were
appointed to the posts of clerk-cum-typist cum computer operator.
The Respondent No. 2 published a seniority list of all the existing
staff with sanctioned strength of 559 posts of clerk-cum-typists cum
computer operators, working in the pay-scale of Rs.5200 - 20200
(grade pay Rs. 1900) as on 01.02.2013. The petitioners find place
in the said seniority list on the basis of their date of appointments. It
is also not in dispute that respondent no.2-corporation on
30.12.1997 forwarded a proposal to the State Government for
approval of the posts of senior typists and equivalent posts. The
eligibility for the said promotion was prescribed to be the seniority
on the existing posts. It is also not in dispute that pending
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consideration of the promotion to the post of senior typists and
equivalent posts, the respondent no.2, framed Kalyan Dombivali
Municipal Corporation (Recruitment and Classification of Service)
Rules 2010 and they were notified in the official Gazette and came
into force from its' publication w.e.f. 20 th December, 2010. The said
Rules were framed by Respondent No. 2 in exercise of its powers
conferred under section 456(A) of the Municipal Corporation Act,
1949 ("MMC Act" for short) and after obtaining necessary approval
from the State Government. The said Rules classified different
services within the purview of the Kalyan Dombivali Municipal
Corporation into various categories namely, Administrative cadre
and administrative service, Secretariat services and the services in
technical cadre. The said Rules are appended with Appendix-II
which prescribes the minimum educational qualification and
eligibility criteria for the various posts to be filled in into various
categories of services, which were classified as per the Rules of 2010
and to be filled in by way of direct recruitment and promotion. The
said Rules were made applicable w.e.f. 20.12.2010. Some of the
petitioners submitted their objections to the applicability of the said
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Rules to them and specifically being aggrieved by the fact that they
are required to pass certain examinations, which were not essential
to be passed at the time of their recruitment into the services of the
respondent no.2 and according to them the said Rules should not
have been made applicable retrospectively, since it amounted to
change in the conditions of their service. It is the case of the
petitioners that departmental promotion committee considered
the candidates for promotions to the post of senior clerks, building
supervisors, record keeper etc. and promoted 88 candidates from
the cadre of the clerks by way of promotion, by following the
procedure under section 454 of the M.M.C. Act but the petitioners
were excluded from such promotional benefits.
4 The Petitioners are aggrieved by the issuance of the
promotion order of 24th October, 2013 and their non-consideration
for the promotional posts by ignoring their seniority and it is with
this grievance, they have approached this Court by filing the writ
petitions on 7th February, 2014, seeking directions to the Respondent
No. 2 to promote the petitioners in accordance with their seniority
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and without complying the requirements of the Rules of 2010,
regulating the services of employees of respondent no. 2.
5 This Court was pleased to issue notice to the
respondents and in response to which respondent no. 2 filed an
affidavit, sworn by the Assistant Municipal Corporation
Commissioner of Kalyan, Dombivali Municipal Corporation on 17th
June, 2014. In the said affidavit, respondent no.2 has stated that
the Government of Maharashtra in exercise of powers under section
456-A of the MMC Act, gives special powers to make Rules to be
published for the purpose of recruitment in the establishment of the
respondent no.2 corporation and by the said Rule, the State had
determined the qualification etc. for the purpose for appointment to
the posts in the establishment. It is also stated in the affidavit that
as per the Rule 4B of the Recruitment Rules for the purpose of
promotion, rule of seniority cum eligibility has to be followed. It is
also stated that the corporation had decided to fill up 72 vacant
posts in the year 2013 by way of promotion and the departmental
promotion committee was constituted under the Chairmanship of
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the Municipal Commissioner and three other members which met on
25.09.2013 for deciding the promotions and after taking into
consideration the recruitment rules, eligibility criteria prescribed in
the rules, they effected the promotions under grade-III. The
affidavit further states that the grievance of the petitioners is
baseless since recruitment rules came into force on 16/20
December, 2010 by which the qualifications were prescribed. It is
further stated that the Rules in existence as on the date of the
constitution of the departmental promotion committee will have to
be taken into consideration and accordingly the departmental
promotion committee has rightly considered the eligibility criteria,
prescribed under the Recruitment Rules of 2010. It is categorically
stated in the affidavit that the petitioners are not eligible in view of
the recruitment rules as they have are not qualified in terms of the
Rules of 2010. It is also stated that they have not passed the LSGD
and Departmental examinations which have been introduced as an
essential criteria for effecting the promotions. A statement is also
made in the affidavit that the persons like the petitioners who have
completed 12 years of service in the regular course and could not be
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promoted for any reasons, they have been conferred the pay-scale
in higher grade, but they have never been given charge of the
promotional posts nor they are working on the said posts.
6 We have heard the learned counsel Mrs. Neha Bhide for
the petitioners in writ petition no. 1944 of 2014 and Advocate Mr.
Pendse for the petitioners in writ petition no. 1945 of 2014 and also
Advocate Mr. A. S. Rao, appearing for Respondent No. 2 and the
learned AGP appearing on behalf of Respondent No. 1 State.
7 The petitioners are aggrieved by non-consideration of their
candidature for promotions to the various posts like senior clerk,
building supervisor, excise supervisor, tax supervisor, record keeper,
cashier, senior supervisor etc. which were to be filled in from the
cadre of clerks. The Petitioners no doubt find placement in the
seniority list published by respondent no. 2 as on 01.2.2013 based
on their date of appointment. The Respondent No.2 has framed
Kalyan Dombivali Municipal Corporation Service (Recruitment and
Classification of Service) Rules 2010, which came into effect from
16/20 the December, 2010. However, the Respondent No. 2 has also
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framed the Kalyan Dombivali Municipal Corporations Employees
(Qualification/ Eligibility) and Departmental Examinations) Rules of
2010, which mandates every employee of respondent no.2
Corporation, working on the temporary/ permanent posts to pass the
departmental examination within the chances and time prescribed
and on failure to pass examinations, the said Rules provides for
consequences in the form of losing of seniority.
8 The Kalyan Dombivali Municipal Corporation
(Recruitment and Classification of Service) Rules, 2010 prescribe the
eligibility criteria for a particular posts to be filled in either by way
of promotion or by way of nomination. As far as the post for which
the petitioners are aspiring, are included in the administrative
services, including the post of senior clerk, excise supervisor, tax
supervisor, building supervisor, record keeper, cashier, etc. The
qualification prescribed for filling said posts through the channel of
promotion is in Appendix-II of Rules of 2010 reproduced below :
Administrative By promotion. a) 5 years experience
service of working on the
post of meter
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checker/ octroi
Senior Clerk/ checker/ clerk must
Octroi Supervisor/ have cleared.
Tax Supervisor/
Building b) Must have passed
Inspector/ departmental Lower
Record Keeper/ Grade examination.
Cashier.
c) must have cleared
LSGD examination.
d) Promotion to the
aforesaid post would
be effected on the
basis of the seniority
from the post of
meter checker/ octroi
checker/ as well as
clerk.
9 The petitioners are aggrieved by the promotion order
dated 24.10.2013 issued in favour of 88 candidates on the post of
senior clerk etc. in the pay band of Rs. 5200 to 20200 (Grade Pay
Rs.2400).
As per the Recruitment Rules of 2010, the candidates
who were working on the posts of Clerks were entitled for promotion,
on the basis of their seniority, to the said post of Senior Clerk's cadre,
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if they are having 5 years experience and also passed the
departmental examination and the L.S.G.D. (Local Self Government
Diploma Examination). The Respondents have categorically stated
in the affidavit that the departmental promotion committee, which
considered the candidates for promotion, considering their seniority
and the eligibility in terms of Recruitment Rules of 2010. The
Petitioners are making a consistent grievance that the said Rules
may not be made applicable to them and they also sought exemption
from appearing in the departmental examinations and the
respondents have admitted in their reply that on attaining the age of
45 years, they may be exempted from passing the departmental
examinations but under the prescribed requirement of 2010 Rules,
they must pass the LSGD examinations.
Though the petitioners claim that they have been
appointed long back and have continuous long length of service to
their credit, it is a fact that the Recruitment and classification service
rules came into force in 2010 and the said rules specifically mention
that they are applicable to all employees of the Corporation who are
in service on the date of coming into force of the rules barring part
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time appointments, contractual appointments or appointments on
daily wages. The petitioners have challenged the applicability of
these rules which came into force in 2010. It is not controverted that
when the departmental promotion committee met in the year 2013
to grant promotion to the candidates, the Rules of 2010 were already
in force and it was incumbent on the part of the departmental
promotion committee to adhere to the said rules, which they did. The
DPC selected candidates who were eligible in terms of the Kalyan
Dombivali Municipal Corporation (Recruitment and Classification of
Service) Rules 2010 and since the petitioners were lacking the
prescribed qualification of passing the Local Self Government
Diploma, they were not considered to be eligible for promotion.
Even if it is so, the petitioners are not really deprived of
any financial benefits as respondent no.2 in their affidavit had
categorically stated that on completion of 12 years of service, in order
to avoid stagnation in service, they have been conferred with the pay
scale of higher post and no work of the higher post is in fact extracted
from them as contended by the petitioners. The petitioners therefore
were not eligible for regular promotion in view of the lack of
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qualification in terms of recruitment rules but there is no financial
loss to them as they are getting pay scale of higher post.
10 On the last date of hearing 6th November, 2017 when the
matter was heard, the learned counsel for the petitioners has placed
before us the proposed revised rules which are forwarded by
Respondent No.2 to the State Government for its approval on 27 th
October, 2015 and according to the petitioners the proposed revised
rules include the posts which the petitioners aspiring to be. On
perusal of the said communication dated 27th October, 2015 placed
on record and which we have accepted on record vide order dated 6 th
November, 2017, it is noted by us that the proposed revised
recruitment criteria for promotion to the post of Senior Clerks etc. is
now proposed to be as follows :-
a) Degree in any faculty or equivalent
qualification of recognized University.
b) If LSGD examination conducted by Akhil
Bhartiya Sthanik Swarajya Sanstha, is passed
preference to be given.
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11 We do not intend to create any hindrance in the way of
the State Government considering the said revised rules and if at all
the State Government relaxes the existing rules and the petitioners
can be considered to be eligible in the light of the Service Rules if
approved by the State Government, respondent no.2 will be at liberty
to consider the candidature of the petitioners in the backdrop of the
revised rules if the vacancies continue to exist.
12 In the light of aforesaid discussion, we do not find any
merit in the submission advanced by the learned Counsel for the
petitioners and we are of the considered opinion that the petitioners
are not entitled for the reliefs sought by them in the writ petition. In
the result, the writ petitions are dismissed with no order as to costs.
[SMT.BHARATI H.DANGRE, J.] [S.C. DHARMADHIKARI, J.]
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