Bombay High Court
The Municipal Commissioner Pune ... vs Ms. Safia Abdul Salam Shaikh And Anr on 8 August, 2024
Author: K. R. Shriram
Bench: K. R. Shriram
Digitally
signed by
2024:BHC-AS:31980-DB
MEERA
MEERA
MAHESH
MAHESH JADHAV
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JADHAV Date:
2024.08.12
11:11:18
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 153 OF 2018
The Municipal Commissioner )
Pune Municipal Corporation, )
Pune 41 005 ) ..Petitioner
Versus
1. Ms Safia Abdul Salam Shaikh )
Age:-Adult, Occu:- Service )
R/at:- House No.373, Gharonda )
Housing Society, Phule Nagar, )
R.T.O. Yerawada, Pune 411006 )
2. Maharashtra State Minorities )
Commission )
Badriddin Tayyabji Road, Near CST )
Behind J. J. School of Arts, )
Mumbai 400 001 )
Through its chairman ) ..Respondents
----
Mr. Rishikesh M. Pethe for Petitioner.
Ms Atiya Memon for Respondent No.1.
----
CORAM : K. R. SHRIRAM &
JITENDRA JAIN, JJ.
DATED : 8th AUGUST 2024
ORAL JUDGMENT (PER K. R. SHRIRAM J.) :
1 Rule. Rule made returnable forthwith and heard.
2 Petitioner is challenging the order communicated on 8 th August 2016
passed by the Chairman, Maharashtra State Minorities Commission,
Mumbai-respondent no.2, directing petitioner to promote respondent no.1
by giving a deemed date promotion with effect from her completing the
Graduation (B.A.), i.e., 14th June 2014 alongwith all monetary benefits.
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3 Respondent no.1, at the time of filing of the petition, was working as
a peon with petitioner. Since 28th August 2019 respondent no.1 has been
promoted to the position of junior clerk. Respondent no.1's husband was
working as peon and was attached to the Octroi Department of petitioner.
He unfortunately died on 21st November 1995. On or about 25th June 1999
respondent no.1 applied to petitioner for compassionate appointment in
place of her deceased husband. At that time respondent no.1 had studied
only up to 12th Std. After respondent no.1 obtained the succession
certificate on 4th September 1999 from the Civil Court, Pune, respondent
no.1 again applied on 19th August 2003 for considering her application for
compassionate appointment in place of her deceased husband. An affidavit
was also submitted showing her willingness to work in the available post.
Accordingly, on or about 3rd June 2004 petitioner through its Establishment
Department issued appointment order and appointed respondent no.1 to
the post of peon on probation. It is Petitioner's case that probation period
was for three years and it is in consonance with the rules in force for
appointment on compassionate basis and considering respondent no.1's
educational qualification.
4 On or about 14th June 2004, the University Pune issued a certificate
to respondent no.1 declaring her as graduated in Arts faculty. Factually,
therefore, respondent no.1 became a graduate only on 14 th June 2004,
about 11 days after her appointment.
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5 Respondent no.1 applied for the post of juniot clerk with immediate
effect which was not granted. We are not going into that aspect in this
petition because short point which is required to be considered by us is
whether respondent no.2 could have passed the impugned order that was
communicated on 8th August 2016 directing petitioner to appoint
respondent no.1 as clerk with immediate effect from the date respondent
no.1 graduated, i.e., on 14th June 2004 and to grant all consequential
financial benefits within one month. An affidavit in reply has been filed
opposing the petition and justifying the action of respondent no.1.
6 Mr. Pethe submitted that respondent no.2 or it's chairman had no
power conferred upon it under the Maharashtra State Minorities
Commission Act, 2004 (the Act) to make any such adjudication on a matter
of this nature. Mr. Pethe submitted that there is no adjudicatory power
conferred on the chairperson and, therefore, by recording findings the
chairperson could not have issued the order or any directions as recorded in
the impugned order. Therefore the impugned order is without jurisdiction.
7 Ms Memon went on the merits of the matter and also submitted that
clauses (b), (e), (i) and (j) of sub-section (1) of Section 10 of the Act
empowered the chairman to pass the orders as has been done in the present
case.
8 Section 10, which provides for functions of the Commission reads as
under:
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"10. Functions of Commission:- (1) The functions of the Commission
shall be as follows:-
(a) to examine the working of various safeguards provided in the
Constitution of India and in the laws passed by the State Legislature
for the protection of minorities;
(b) to make recommendations with a view to ensuring effective
implementation and enforcement of all the safeguards;
(c)to monitor the working of the safeguards provided in the
Constitution, laws enacted by the Parliament and the State
Legislature, and policies and schemes of the State Government for
minorities;
(d) to conduct studies, research and analysis on the questions of
avoidance of discriminations against minorities;
(e) to make a factual assessment of the representation of minorities in
the services of the Government, Government undertakings, Quasi-
Government bodies, Municipal Corporations, Municipal Councils, Zilla
Parishads, Panchayat Samitis and Village Panchayats and in case, the
representation is inadequate, to suggest ways and means to achieve
the desired level;
(f) to make recommendations for ensuring, maintaining and
promoting communal harmony in the State;
(g) to make periodical reports at prescribed intervals to the
Government; (h)to study any other matter which, in the opinion of
the Commission, is important from the point of view of the welfare
and development of minorities, and to make appropriate
recommendations;
(i) to consider the grievances of the minorities and to suggest
appropriate solution, from time to time;
(j) to look into specific complaints regarding deprivation of rights and
safeguards of minorities and take up such matters with the
appropriate authorities;
(k) to co-ordinate and supervise the implementation of the Prime
Minister's 15 Points Programme for Welfare of Minorities :
Provided that, if any matter specified in sub-section (1) is undertaken
by the National Commission for Minorities constituted under section 3
of the National Commission for Minorities Act, 1992 (19 of 1992), the
State Commission shall cease to have jurisdiction in such matters.
(2) The Government shall cause the recommendations of the
Commission to be laid before each House of the State Legislature
along with the memorandum explaining the action taken or proposed
to be taken on the recommendations and the reasons for non-
acceptance, if any, of such recommendations."
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9 In our view, on a plain reading of Section 10 of the Act, it is clear that
there is no power conferred on respondent no.2 to adjudicate upon any
dispute or a lis and to pass any executable order, much less to make an
adjudication on legality and validity of the terms of employment in Pune
Municipal Corporation. Since respondent no.1's counsel has relied upon
clauses (b), (e), (i) and (j) of sub-section (1) of Section 10 of the Act, we
would restrict our views only to these provisions.
Under clause (b), the functions of commission is to make
recommendations with a view to ensuring effective implementation and
enforcement of all the safeguards. Under clause (e), the functions of
commission is to make a factual assessment of the representation of
minorities in the services of the Government .............Municipal
Corporations, .............. and Village Panchayats and in case, the
representation is inadequate, to suggest ways and means to achieve the
desired level. Under clause (i) the functions of commission is to consider
the grievances of the minorities and to suggest appropriate solution, from
time to time, and finally under clause (j), the functions of commission is to
look into specific complaints regarding deprivation of rights and safeguards
of minorities and take up such matters with the appropriate authorities.
None of these functions empowered respondent no.2 to adjudicate upon
any dispute or lis or to pass any executable order. Even on the other
provisions, our views will be the same. In our view, respondent no.2 has
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purported to exercise powers while passing the impugned order, which
were not vested in him.
10 We find support for our view in a judgment dated 6 th April 2017 of
this court in Writ Petition No.6569 of 2016 in the case of Darul Falah
Educational & Welfare Trust Vs. The State of Maharashtra & Ors.
11 Rule is made absolute in terms of prayer clause (b) which reads as
under:
"(b) Quash and set aside the order forwarded with the covering letter
dated 8th August 2016 passed by the Chairman, Maharashtra State
Minorities Commission, Mumbai at Exhibit I by issuing appropriate
writs, orders and directions."
12 We make it clear that we have made no adjudication on the issue of
additional claims lodged before respondent no.2. If respondent no.1 has
any other remedy to enforce the rights, respondent no.1 may take such
steps in accordance with law. We express no opinion.
(JITENDRA JAIN, J.) (K. R. SHRIRAM, J.)
Meera Jadhav
