[Cites 8, Cited by 0]
Bombay High Court
Municipal Corporation Of Greater ... vs Mumbai Mahanagarpalika Karyalayeen ... on 26 March, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:14405
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Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4735 OF 2013
1. Municipal Corporation of Greater Mumbai
2. The Municipal Commissioner
SHABNOOR
AYUB for Greater Mumbai.
PATHAN
Digitally signed by
SHABNOOR AYUB
PATHAN 3. Madhav Sangle, or his Successor,
Date: 2026.03.26
12:12:45 +0530
The Additional Municipal Commissioner (E.S.)
4. Rajendra Vale or his Successor
The Deputy Municipal Commissioner
(General Administration)
5. R.B.Dhas or his successor/s
The Chief Accountant (Finance) MCGM
6. K.S.Pilankar or his Successor/s
The Chief Accountant Water Supply
& Sewerage Department MCGM.
All having Offices, at Municipal
Head Offices, Mahapalika Marg,
Mumbai - 400 001. .. Petitioners
V/s.
Mumbai Mahanagarpalika Karyalayeen
Karmachari Sanghtana,
Municipal Head Office,
Mahapalika Marg, Mumbai - 400 001 .. Respondent
WITH
INTERIM APPLICATION NO.14599 OF 2024
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Mumbai Mahanagarpalika Karyalayeen
Karmachari Sanghatana
Municipal Head Office, Mahapalika Marg,
Mumbai - 400 001. .. Applicant
In the matter between:
1. Municipal Corporation of Gr. Mumbai
2. The Municipal Commissioner
for Gr. Mumbai
3. Madhav Sangle, or his Successor,
The Additional Municipal Commissioner
(E.S.)
4. Rajendra Vale or his Successor
The Deputy Municipal Commissioner
(General Administration)
5. R.B.Dhas or his successor/s
The Chief Accountant (Finance) MCGM
6. K.S.Pilankar or his Successor/s
The Chief Accountant Water Supply
& Sewerage Department MCGM.
All having Offices, at Municipal
Head Offices, Mahapalika Marg,
Mumbai - 400 001. ... Petitioners
V/s.
Mumbai Mahanagarpalika Karyalayeen
Karmachari Sanghtana,
Municipal Head Office,
Mahapalika Marg, Mumbai - 400 001 ... Respondent
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Mr. Ram S. Apte, Senior Advocate with Mr. D. R.
Kawale, for petitioner-MCGM.
Mr. Prakash Devdas with Ms. Vidula Patil, for
Respondents.
CORAM : AMIT BORKAR, J.
RESERVED ON : MARCH 7, 2026
PRONOUNCED ON : MARCH 26, 2026
JUDGMENT.:
1. By the present Petition instituted under Article 227 of the
Constitution of India, the Petitioners, who were the original
Respondents before the Industrial Court, call in question the
legality and correctness of the Judgment and Order dated 15
January 2013 passed by the Industrial Court in Complaint (ULP)
No. 225 of 2009. The said complaint had been instituted by the
Respondent, who was the original complainant, under Section 28
read with Items 6 and 9 of Schedule IV of the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971. The impugned judgment having been
rendered against the Petitioners, they have invoked the supervisory
jurisdiction of this Court under Article 227 of the Constitution
seeking interference with the said order.
2. The circumstances giving rise to the present Petition may
briefly be stated. According to the Petitioners, the Municipal
Corporation of Greater Mumbai is a statutory body constituted
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under the provisions of the Mumbai Municipal Corporation Act,
1888. The Corporation discharges various statutory duties and
public functions in accordance with the mandate of the said
enactment. Its primary responsibilities include providing civic
amenities and essential municipal services to the residents of the
metropolitan city. Among its several statutory obligations are
duties connected with the maintenance and regulation of essential
public services. The Petitioners contend that, being both a public
authority and an employer engaged in public utility services, the
Corporation is required to take such administrative measures as
may be necessary to ensure the efficient functioning of the
municipal administration and the proper discharge of its statutory
responsibilities. The Petitioners further state that certain
employees who had successfully cleared the departmental
examination conducted for the post of Head Clerk or Senior Audit
and Accounts Assistant in the years 1990, 1992 and 1998 were
placed in a waiting list for appointment. During the relevant
period, vacancies had arisen in posts reserved for candidates
belonging to backward class categories. These vacancies occurred
on account of retirement, death and other service contingencies.
However, such reserved posts could not be filled since eligible
candidates belonging to the backward class categories were not
available. It is stated that the Municipal Corporation strictly
follows the reservation policy formulated by the Government in
respect of backward classes. Owing to the continued vacancy in
these posts, the administration faced considerable difficulty in the
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conduct of routine work and day to day municipal administration.
In these circumstances, since certain employees belonging to the
open category had already passed the requisite departmental
examination and were otherwise available for appointment, such
employees were appointed on a purely ad hoc basis to the posts of
Senior Audit and Accounts Assistant against the vacancies which
were originally meant for backward class candidates. It is further
the case of the Petitioners that since the aforesaid appointments
were purely ad hoc in nature, administrative practice required that
such employees be given a break in service after every six months.
However, due to an inadvertent lapse, such break was not given,
and the employees concerned continued to work on the said posts
without interruption. In view of this situation, the administration
subsequently took a policy decision that whenever clear vacancies
in the open category became available, the services of these ad hoc
appointees would be regularised against such vacancies by
granting them a technical break of one day. Acting upon this
decision, necessary administrative steps were taken and the same
were implemented with retrospective effect.
3. The Petitioners further contend that these employees were
otherwise not entitled to promotion at the relevant time, as there
were no clear vacancies available in the open category. The only
vacancies which had arisen were in the posts reserved for
backward class candidates. Nevertheless, with a view to ensuring
that the functioning of the administration was not adversely
affected, the said employees were granted ad hoc promotions.
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According to the Petitioners, had the reserved posts continued to
remain vacant due to the non availability of eligible candidates
from the backward class categories, these employees would not
have obtained promotion to the posts of Head Clerk or Senior
Audit and Accounts Assistant. It is also their case that the
employees concerned have derived financial advantage by virtue of
the ad hoc promotions granted to them. Subsequently, when clear
vacancies arose in the open category, these employees were given a
technical break of one day and were thereafter promoted to the
available posts in accordance with the applicable service rules.
4. The Petitioners further submit that the posts of Head Clerk or
Senior Audit and Accounts Assistant are supervisory and
administrative in nature. The officers occupying these posts
exercise supervisory control over clerks and other subordinate staff
working under them. Their duties are predominantly supervisory
in character. A number of clerks, peons and other Class IV
employees function under their control and supervision. It is stated
that a Head Clerk possesses authority to recommend leave and to
maintain confidential reports of clerks, peons and other Class IV
employees. Having regard to the nature and character of these
functions, the Petitioners contend that the post of Head Clerk
cannot be regarded as falling within the definition of "workman"
as contained in Section 2(s) of the Industrial Disputes Act, 1947. It
is further stated that after hearing the parties, the learned
Industrial Court proceeded to pass the impugned Judgment and
Order dated 15 January 2013 in Complaint (ULP) No. 225 of
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2009. Being aggrieved by the said decision and disputing its
correctness, the Petitioners have invoked the supervisory
jurisdiction of this Court under Article 227 of the Constitution of
India.
5. Mr. Apte, learned Senior Advocate appearing on behalf of the
Petitioners, submits that the learned Industrial Court failed to
properly appreciate the factual and legal position governing the
case. According to him, the employees concerned in the complaint
were granted promotions only on an ad hoc basis to posts which
were otherwise reserved for candidates belonging to reserved
categories. At the relevant time, eligible candidates from the
reserved categories were not available. In such circumstances,
employees belonging to the open category were temporarily
promoted to those posts purely as an administrative arrangement
so that the work of the department did not suffer. It is contended
that such promotions were intended to operate only until
candidates from the reserved categories became available or until
vacancies arose in the open category against which the said
employees could be regularly promoted. Learned Senior Counsel
further submits that all the 47 employees were eventually
promoted in accordance with the availability of vacancies. In view
of this position, the said employees cannot claim continuity of
service on the promotional post from the date of their initial ad
hoc promotion until the date on which regular promotion was
granted. It is further submitted that the learned Industrial Court
has failed to consider that the concerned employees have already
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been granted the benefit of regular promotion and permanency as
and when vacancies became available. According to the
Petitioners, once such benefits have been extended in accordance
with the applicable service rules, the employees cannot seek to
claim continuity of service on the promotional post from the date
of their initial appointment on an ad hoc basis. It is contended that
such a claim would run contrary to the arrangement under which
the ad hoc promotions were granted.
6. The learned Advocate for the Petitioners further submits that
the learned Industrial Court committed an error in holding that the
Petitioners had engaged in an unfair labour practice under Item 9
of Schedule IV of the Maharashtra Recognition of Trade Unions
and Prevention of Unfair Labour Practices Act, 1971. According to
him, the Industrial Court wrongly concluded that by not granting
promotion with retrospective effect from the date of the initial ad
hoc appointment to the post of Head Clerk or Senior Audit and
Accounts Assistant, and by allegedly failing to implement the terms
of the Award in Reference (IT) No. 19 of 1996, the Petitioners had
violated the provisions of the said Act. It is contended that such a
conclusion is not supported either by the facts on record or by the
governing service rules.
7. Learned Senior Counsel further submits that all the
employees who were parties to the complaint had been granted ad
hoc promotions against posts reserved for candidates belonging to
reserved categories. Since suitable candidates from the reserved
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categories were not available at the relevant time, the employees
belonging to the open category were temporarily placed on those
posts purely on an ad hoc basis. These arrangements continued
either until eligible candidates from the reserved categories
became available or until posts in the open category became
available for regular promotion. It is reiterated that all the 47
employees were subsequently promoted in accordance with the
availability of vacancies. Therefore, according to the Petitioners,
the employees cannot claim continuity of service on the
promotional posts from the date of their initial ad hoc promotion
until the date when regular promotions were actually granted.
8. It is further argued that under the prevailing administrative
procedure, while granting such ad hoc promotions, it was
necessary to provide a one day technical break in service. However,
due to an inadvertent lapse, the said break was not given and the
employees continued to work on the promotional posts without
interruption. According to the Petitioners, when this fact came to
the notice of the administration in the year 2009, a decision was
taken to introduce a one day break with retrospective effect for the
period between the years 2004 and 2006. It is submitted that in
reality no direction had been issued by this Court requiring such
continuity, and the employees were permitted to continue only
because the break had not been implemented earlier. It is further
contended that the employees involved in the complaint have
already been granted the benefits of permanency as and when the
posts became vacant. However, merely for the purpose of claiming
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continuity of service, they cannot assert a right to treat their initial
ad hoc appointment as regular promotion from the very beginning.
9. Per contra, Mr. Devdas, learned Advocate appearing on
behalf of the Respondent, submits that the Industrial Court has
rightly appreciated the material placed on record and has correctly
concluded that the Petitioners have indulged in an unfair labour
practice within the meaning of Item 9 of Schedule IV of the
Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1971. On that basis, the Industrial Court
directed the Municipal Corporation of Greater Mumbai to treat the
promotions of the concerned employees as effective from the date
of their initial appointment to the posts of Head Clerk or Senior
Audit and Accounts Assistant. The Industrial Court also directed
that the said employees be granted continuity in service on the
promotional posts along with consequential seniority. It is further
submitted on behalf of the Respondent that the period of service
rendered by the concerned employees from the date of their initial
promotion on an ad hoc basis until the date of their regularisation
is required to be treated as qualifying service. According to the
Respondent, such service ought to be counted for the purpose of
extending benefits under schemes such as Time Bound Promotion
as well as other service related benefits available to the employees.
10. Learned Advocate for the Respondent further submits that
the concerned employees had been granted regular annual
increments and other service benefits applicable to the
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promotional posts during the period they were discharging duties
on those posts. According to him, the only dispute that survives
relates to the determination of the effective date of promotion. The
issue for consideration is whether the promotion of the employees
ought to be reckoned from the date on which they were initially
placed on the promotional posts on an ad hoc basis. It is further
submitted that there is no dispute regarding the eligibility of the
concerned employees for promotion to the posts of Head Clerk or
Senior Audit and Accounts Assistant. All the employees had
successfully passed the requisite departmental examinations as
prescribed under the applicable rules. It is also an admitted
position that they discharged their duties continuously on the
promotional posts without any break in service. Learned Advocate
for the Respondent also places reliance on the judgment of this
Court in Writ Petition No. 8711 of 2007, wherein it has been held
that the Model Standing Orders are applicable to the employees of
the Municipal Corporation of Greater Mumbai. It is contended that
the classification under the Model Standing Orders does not
recognise any category described as ad hoc. Consequently, even if
the promotions were described as temporary, once the employees
had been appointed and had discharged duties on those posts in
accordance with the applicable rules, they would be entitled to be
treated as regular employees from the initial date of such
promotion.
11. It is further submitted that the learned Industrial Court has
rightly observed that the decision of the Petitioners to impose a
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one day artificial break in the year 2009 with retrospective effect
from the year 2004 is illegal and arbitrary. According to the
Respondent, such a course of action is contrary to settled principles
of service jurisprudence, particularly when the concerned
employees had already been granted all benefits attached to the
promotional posts. It has also been noted that the employees are
not claiming any monetary benefits arising from such promotions.
12. Learned Advocate for the Respondent further submits that
the principal relief sought by the employees is limited in nature.
According to him, the employees only seek recognition of their
temporary service on the promotional posts as qualifying service
for the purpose of obtaining second promotions under the Time
Bound Promotion Scheme, also referred to as the Assured Career
Progression Scheme. It is submitted that the said scheme was
introduced by the Standing Committee and thereafter approved by
the General Body of the Municipal Corporation of Greater Mumbai
with effect from 1 August 2001. It is lastly submitted that a
demand had earlier been raised for removal of anomalies that
arose as a consequence of the implementation of the Sixth Pay
Commission recommendations applicable to the employees of the
Municipal Corporation of Greater Mumbai. For addressing such
issues, an Anomaly Removal Committee was constituted under the
Chairmanship of Ramanath Jha. One of the issues considered by
the said Committee was whether temporary or ad hoc service
rendered by employees ought to be treated as qualifying service.
The Committee made its recommendations in that regard, which
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were subsequently accepted by the Municipal Corporation, and the
benefits arising therefrom were extended to the employees.
13. In support of the aforesaid submissions, learned Advocate for
the Respondent has placed reliance upon the judgment of the
Delhi High Court in the case of S. C. Kohli and others v. M.C.D.
and others, decided on 29 September 2000. Reliance is also placed
upon the judgments of the Supreme Court in Dwijen Chandra
Sarkar v. Union of India, (1999) 2 SCC 119, Union of India v. V. N.
Bhat, (2003) 8 SCC 714, and Union of India v. M. Mathivanan ,
(2006) 6 SCC 57.
REASONS AND ANALYSIS:
14. I begin with the nature of the ad-hoc appointments which lie
at issue in the present dispute. The Petitioners themselves state
that the concerned employees were placed on the promotional
posts only on an ad-hoc basis. The reason for this arrangement is
also not in dispute. The posts in question were reserved for
candidates belonging to backward class categories. At the relevant
time, suitable candidates from those reserved categories were not
available. Because of this situation the posts remained vacant for
some period. The administration of the Municipal Corporation was
therefore faced with a practical difficulty. These posts were
connected with day to day functioning of the department. If they
remained vacant for a long time, the work of the department
would suffer and essential municipal services could be affected. It
was therefore decided to appoint employees belonging to the open
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category on an ad-hoc basis. Such an arrangement was clearly
taken as an administrative measure so that public work does not
stop. However, the appointments were described as ad-hoc and
temporary. They were expected to continue only till reserved
category candidates became available or till vacancies arose in the
open category which could be filled by regular promotion. Still,
merely placing the label of ad-hoc on an appointment does not
automatically decide the legal consequences of that appointment.
15. The real effect of a temporary or ad-hoc appointment
depends upon how the employer actually treated the employee
during that period. It also depends upon what kind of duties were
performed and what benefits were granted to the employee while
holding that post. When the record of the present case is
examined, it becomes clear that the employees actually worked on
the promotional posts for long periods without interruption. They
discharged the same duties which a regularly promoted employee
would perform. The material also shows that they were granted
annual increments and other service benefits attached to the
promotional posts. Their pay was fixed accordingly and they
received financial advantage because of the higher post. When an
employee continuously performs duties of a higher post and is also
given benefits attached to that post, the administration cannot
later rely only on the description of the appointment as ad-hoc to
deny the effect of such service.
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16. The Petitioners have strongly relied upon the reservation
policy. According to them, the posts were reserved and therefore
the ad-hoc arrangement was only a temporary stop-gap
arrangement. The purpose of reservation is to ensure adequate
representation of backward classes in public employment.
Therefore, the administration was justified in not permanently
filling those posts with open category candidates when the posts
were reserved. To that extent the action of the Corporation cannot
be faulted. The Petitioners have also pointed out that, as a matter
of administrative procedure, a one day technical break is normally
given when an ad-hoc employee is subsequently regularised.
According to the Corporation, such a break creates a formal
separation between temporary service and regular service. The
record however shows that this break was not given at the relevant
time. The employees continued to work on the promotional posts
without any interruption. It is only later that the administration
attempted to introduce a one day break with retrospective effect
for the period between 2004 and 2006. When employees have
already worked for several years and have been granted benefits of
the post, can the administration later impose a technical break
retrospectively in order to deny them continuity of service.
17. The Industrial Court considered this aspect in detail. After
examining the evidence, the Industrial Court came to the
conclusion that the retrospective imposition of a one day break
was arbitrary. The Industrial Court noticed that the employees had
in fact worked continuously on the promotional posts. They were
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paid increments and other benefits attached to those posts. They
were treated by the administration as if they were holding the
promotional posts. In such circumstances the Industrial Court
found that the attempt to introduce a retrospective break after
several years was contrary to law. The Industrial Court also
recorded that the employees were not claiming additional
monetary benefits on account of the retrospective date of
promotion. Their primary grievance was regarding continuity of
service and seniority. The absence of a claim for large financial
benefit shows that the employees were not attempting to take
undue advantage. At the same time, even if monetary benefits
were not claimed, the legal issue regarding continuity and
seniority still required proper adjudication.
18. Another aspect which requires consideration is the role of
the Anomaly Removal Committee. The record indicates that after
the implementation of the Sixth Pay Commission
recommendations, certain service anomalies arose in the Municipal
Corporation. In order to examine those issues, a committee was
constituted under the chairmanship of Ramanath Jha. One of the
issues considered by the committee was whether temporary or ad-
hoc service should be treated as qualifying service for certain
benefits. The committee made recommendations in that regard
and those recommendations were later accepted by the Municipal
Corporation itself. The acceptance of these recommendations
shows that the Corporation recognised the need to treat certain
temporary service as qualifying service. This decision therefore
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supports the view that, in the municipal establishment, service
rendered in a temporary capacity may in appropriate
circumstances be recognised for service benefits. When the
employer itself adopts such a policy, it becomes difficult to deny
similar treatment to the employees concerned in the present case.
19. The Petitioners have also emphasised that reservation policy
must be protected and that the reserved posts cannot be
permanently occupied by open category candidates. I fully accept
that reservation is an important constitutional policy. The
Corporation was justified in ensuring that the reserved posts were
not permanently diverted. The temporary arrangement adopted by
the Corporation was therefore understandable from an
administrative perspective. However, the existence of reservation
policy does not permit the employer to act unfairly towards
employees who have actually performed duties on those posts for
many years. The purpose of reservation is to ensure representation
of backward classes. It is not intended to create a situation where
employees who have worked continuously are deprived of
legitimate dues of their service.
20. The concept of one day technical break also needs to be
viewed in its proper perspective. Such a break is usually
introduced as a device so that the period of ad-hoc service and the
period of regular service are kept legally distinct. In ordinary
situations this may be a formality. But when such a break is
imposed retrospectively after employees have worked continuously
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for many years, the situation becomes different. Retrospective
application of such a method may result in denial of continuity of
service and loss of seniority. In the present case the break was not
given at the relevant time. It was introduced later when the
dispute arose. The Industrial Court therefore found that the
retrospective break was arbitrary. On the material available on
record, that conclusion appears justified.
21. The employees have already been regularised and are
holding the promotional posts. The dispute now concerns the
effective date from which their service on those posts should be
recognised. The record clearly shows that the employees had
passed the required departmental examinations. They actually
performed the duties of the promotional posts. They received
increments and other benefits attached to those posts.
Subsequently the administration itself recognised their position by
granting regular promotions and by accepting the
recommendations of the Anomaly Removal Committee. All these
circumstances indicate that their service on the promotional posts
was continuous service.
22. For these reasons, the facts of the present case support the
view that the period during which the employees worked on the
promotional posts from the date of their initial ad-hoc
appointment should not be ignored completely. That service
deserves recognition at least for limited purposes such as
determination of seniority and consideration under schemes like
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Time Bound Promotion or Assured Career Progression. Such
recognition does not disturb the reservation policy. In the
circumstances, the reasoning adopted by the Industrial Court
appears consistent with the material placed on record.
23. For the reasons recorded hereinabove, the Petition fails and
is accordingly dismissed.
24. The Judgment and Order dated 15 January 2013 passed by
the Industrial Court in Complaint (ULP) No. 225 of 2009 is hereby
confirmed.
25. The Petitioners shall carry out necessary corrections in the
service records of the concerned employees and extend
consequential service benefits, if any, in accordance with the
applicable rules within a period of three months from the date of
this order.
26. There shall be no order as to costs.
27. In view of disposal of the writ petition, the interim
application stands disposed of.
28. At this stage, learned Advocate for the petitioners seeks stay
of the judgment and order. However, for the reasons stated in the
judgment, the request for stay is rejected.
(AMIT BORKAR, J.)
