a, a $31 to54 10.05.201 1 Present: Ms. Madhu Tewatia & Ms. Sidhi Arora for the petitioner along with Mr. K.S. Mehra, Commissioner of MCD in person. Mr. Anand Nandan & Mr. Bishwajit Bhattacharji for respondents in item Nos. 31, 34 to 37, 40 to 42 and 46. Mr. Javed Ahmed for the respondents in item Nos. 32 to 35, 37, 39, 43 to 45,49 to 51, 53 & 54. W .P . (Cl Nos. 313012010. 122412011, 122512011, 1226t2011. 1227 t2011, 1228t2011. 1229t2011, 123012011. 1231t2011 . 1232t2011. 1233t2011. 123412011. 1235t2011 . 1236t2011 . 1237 t2011. 1238t2011, 1244t2011. 1248t2011. 124912011, 1250t2011, 125112011. 125212011, 125312011 & 1254t2011 By these writ petitions, the petitioner Municipal corporation of Delhi (for short 'MCD') has called in question the legal propriety of the order dated 23'd December, 2OOg passed by the central Administrative Tribunal, Principal Bench, Derhi (for short, 'the tribunal') whereby the tribunal has directed regularization of employment of the respondents, who have been engaged as Domestic Breeding Checkers. 2. lt is submitted by Ms.Madhu Tewatia, learned counsel for the MCD that the tribunal has totally erred by coming to hold that the resolution passed by the MCD has conferred a right on the respondents though there was no compliance of section 90 of \x 4. '1 i -./ -l Digitally Signed By:AMULYA Signature Not Verified \c5 \ the Delhi Municipal Corporation Act, 1957 (for brevity 'the Act) and, hence, no right could have flowed in favour of the applicant before the tribunal. 3. Mr. Anand Nandan and Mr. Javed Ahmed, learned counsel appearing for the respondents in all the writ petitions, per contra, have submitted that the Commissioner of MCD was present at the time when resolution was passed and, therefore, is a party to the resolution and, hence, his concurrence is inherent. 4. As we perceive, the controversy centers around whether a resolution was passed by the MCD conferring the status of regularized employees on the respondents who have been engaged as Domestic Breeding Checkers. In this context, we may refer to Section 89 which occurs in Chapter Vl of the Act that deals with municipal officers and other municipal employees. lt reads as follows: "89. Appointment of certain officers. - (1) The Corporation shall appoint suitable persons to be respectively 1 [***], the Municipal Engineer, the Municipal Health Officer, the Education Officer, the Municipal Chief Accountant, the Municipal Secretary and the Municipal Chief Auditor and may appoint one or more Deputy Commissioners and such other officer or officers of a status equivalent to or higher than the status of any of the officers specified earlier in this sub-section as the T I : $ Corporation may deem fit on such monthly salaries and such allowances, if any, as may be fixed by the Corporation. (2) The appointment of the Municipal Chief Auditor shall be made with the previous approval of the 2 l***f Government and every other appointment referred to in sub-section (1) except that of the Municipal Chief Accountant and the Municipal Secretary shall be subject to confirmation by that Government: Provided that the Municipal Chief Auditor shall not be eligible for any other office under the . Corporation after he has ceased to hold his office." i,-{\ t 5. Section 90 of the Act deals with schedule of permanent posts and creation of temporary posts. The said provision is as under: "90. Schedule of permanent posts and creation of temporary posts.- (1) The Commissioner shall from time to time prepare and lay before the Standing Committee two schedules of posts other than those specified in sub-section (1) of section 89 setting forth the designations and grades of municipal officers and other municipal employees who should be maintained permanently in the service of the Corporation indicating therein the salaries, fees and allowances which are proposed to be paid to such officers and other employees. (2) Of the two schedules referred to in sub-section (1), the first schedule shall deal with category A posts and the second schedule with category B and category C I a) aa posts. (3) The Standing Committee shall lay the first schedule with its comments thereon before the Corporation for its consideration and approval and shall sanction the second either without modifications or with such modifications as it thinks fit and thereafter may amend it either on its own motion after ascertaining the views of the Commissioner or at his instance. (4) The Corporation shall after considering the comments of the Standing Committee, sanction the first schedule either without modifications or with such modifications as it thinks fit and thereafter may amend it either on its own motion after ascertaining the views of the Commissioner and the committee concerned or at the instance of the Commissioner or committee. (5) The Commissioner may create for a period not exceeding six months any category C post: Provided that no such post shall be continued beyond the said period without the previous approval of the Standing Committee. (6) The Standing Committee may, on the recommendation of the Commissioner, create for a period not exceeding six months any category A or category B post: Provided that no such post shall be continued beyond the said period without the previous approval of the Corporation. (***) (8) In this section and in section 92- ../ t @ (i) "category A post" means any post, which, having regard to its scale of pay or emoluments, would, if such post had been in the Central Government, be classified as a Group A post under the Central Government in accordance with the orders issued by that Government from time to time; (ii) "category B post" means any post which, having regard to its scale of pay or emoluments, would, if such post had been in the Central Government, be classified as a Group B post under the Central Government in accordance with the orders issued by that Government from time to time; (iii) "category C post" means any post, other than a category A or category B post." 6. As there is a reference to Section 92 in Section 90, we may profitably reproduce Section 92: "92. Power to make appointments.- (1) Subject to the provisions of section 89, the power of the appointing municipal officers and other municipal employees whether temporary or permanent shall vest in the Commissioner: Provided that the power of appointing officers and other employees immediately subordinate to the Municipal Secretary or the Municipal Chief Auditor to category B posts or category C posts shall vest in the Standing Committee: Provided further that the Standing Committee may delegate to the Municipal Secretary or the Municipal Chief Auditor the power of appointing officers and other q> I A / \ ( \7 t ^q employees immediately subordinate to the said Secretary or Auditor, to category C posts. (2) The claims of the members of the Scheduled Castes shall be taken into consideration consistently with the maintenance of efficiency of administration, in the making of appointments of municipal officers and other municipal employees." 7. On a plain reading of the aforesaid provisions, it becomes quite vivid that the language employed in the provisions does confer a significant role on the Commissioner. Sub-sections (1) and (3) of Spction 90 are to be read together. They cannot be read or construed in isolatidn. On a reading of both the provisions together, it is luminescent that the Commissioner under the statutory scheme of things is required to give his views. Ascertaining the views of the Commissioner is a statutory requisite. In the case at hand, it is not disputed that the resolution was initiated by a private member which has been passed by the Corporation but as required in law the comments / .views of the Commissioner were not called for. That apart sub- section (a) of Section 90 the Corporation is required to scrutinize the comments. The same has also not been done. 8. In view of the aforesaid, we would modify the order of the tribunal that the Corporation as required in law, shall call for the I I @ ,>9 ) ,'i\ Ii views/comments from the Commissioner. We have been apprised by Mr. K.S. Mehra, Commissioner of MCD that his comments have already been called for. In view of the aforesaid, it is directed that the commissioner shall give his views / comments within six weeks. The said aspects also conceded to by Mr. K.s. Mehra. Thereafter, the corporation, as submitted by Ms. Madhu Tewatia, shall take a decision as per the provisions of the Act. Needless to emphasize, we have not expressed any opinion on any other aspect. 9. Mr. K.S. Mehra has very fairly stated that the services of the respondents shall not be terminated till the corporation takes a final decision. This court hopes and trusts the corporation shall take a decision at the earliest. 10. The writ petitions are disposed of accordingry without any order as to costs. b,y CHIEF JUSTICE 4 | a -. LL (_. SANJIV KHANNA, J. MAY 10,2011 VKR I {r,-6WVrq,,Wffi; I Crn^""dd ?"',nv 9>-h K