1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.91 OF 2010 The Municipal Corporation of Gr.Mumbai & Ors. ....Petitioners V/s. The Municipal Mazdoor Union ....Respondents Mr.R.N. Shah, Senior Counsel with Mr.M.M. Malvankar for the Petitioners. Mr.S.K. Talsania, Senior Counsel with Mr.M.D. Nagale for the Respondents. CORAM : S.J. VAZIFDAR, J. DATE : 6TH JANUARY, 2010. P.C. :- 1. Rule. Rule is made absolute forthwith and heard finally. 2. The Petitioners have challenged an interim order under Section 30(2) of the M.R.T.U. & P.U.L.P. Act by which the Petitioners have been directed during the pendency of the complaint to allow the concerned employees in the complaint working in the M.S. (Municipal Secretary) and M.C.A. (Municipal Chief Auditors) Departments to appear in the examination, test, interview etc. conducted in other departments of the Petitioners for appointment to higher posts like other municipal employees working in other departments. The order also directs the Petitioners to permit the Respondents to make an application as per a circular dated 5.11.2009. 3. Normally a policy decision unless shown to be ex-facie illegal, 2 would be permitted to be implemented at least at the interim stage. The present policy however has challenged a system which has been in existence since inception of the Bombay Municipal Corporation by prohibiting the workers in the M.S. and M.C.A. departments from applying for being appointed in other departments. The Industrial Court has held in a detailed order that prima-facie the said workers had vested in them a right to apply for such appointments/posts. The purpose of the present policy in discontinuing this system, it is alleged, is to ensure that the workers in these two crucial departments namely M.S. and M.C.A. remain uninfluenced from discharging their functions in the said departments. 4. While I do not intend setting aside the impugned order, it is necessary to modify the same to ensure that during the pendency of the complaint, the rights of neither of the parties is adversely affected. 5. As the practice has been in place for over a 100 years, prima- facie the Petitioners would not be prejudiced by the interim order, so long as the Petitioners are safeguarded in the event of the complaint being ultimately disposed of. I am informed that the examinations are to be held on 23rd and 24th of January, 2010. The appointments would normally take at least some time. The successful candidates would only be appointed on probation for a period of three years. If such candidates are not confirmed, they would be reverted to their original posts. This would apply in respect of all the employees including those of the said M.S. and M.C.A. departments. 6. The rights of both the parties therefore, can be suitably protected by directing that the appointments to be made shall be subject to 3 the outcome of the complaint and by expediting the complaint. I expedite the complaint only because of the peculiar facts of this case. 7. In the circumstances, the Writ Petition is disposed of by the following order :- i). The members of the complainant union working in the M.S. and M.C.A. departments and whose names appear in the list annexed to the complaint, shall be entitled to appear in the forthcoming examination and to be considered for appointment which shall be subject to the result of the complaint. Mr.Talsania’s undertaking that the acceptance of the appointment if made shall be subject to the outcome of the complaint, is accepted. In any event if the employee is not willing to accept, the appointment based on such undertaking, he shall not be appointed. ii). The Industrial Court is requested to dispose of the complaint on or before 31.12.2010. In the event of the complaint not being disposed of on or before 31.12.2010, the employees of the complainant union, if appointed, shall continue only on probation and shall not be entitled to be confirmed till the disposal of the complaint. 8. The Writ Petition is accordingly disposed of.