1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2191 OF 2008 ... Anil Shantaram Khoje & Anr. ...Petitioners v/s The Municipal Corporation of Gr.Mumbai & Anr. ...Respondents ... Mr.Aspi Chinoy, Sr.Advocate with Mr.R.R.Shetty for the Petitioners. Mr.R.S.Apte, Sr.Advocate with Ms.S.M.Modle for Respondent No.1. Mr.Ravi Kadam, Advocate General with Mr.J.S.Saluja, AGP for Respondent No.2. Mr.S.N.Pillai for Respondents Nos.3 to 5. Mr.K.K.Singhvi, Sr.Advocate with Mr.Susheel Mahadeshwar i/b Ms.Ranjana Todankar for Respondent No.6. ... CORAM: D.K.DESHMUKH, & R.G.KETKAR, JJ DATED: 7th October, 2009 ORAL JUDGMENT:(PER D.K.DESHMUKH, J.) 1. By this petition the Petitioners, who are working with the Mumbai Municipal 2 Corporation as Asst. Commissioners, seek a direction to the Mumbai Municipal Corporation to effect promotion to the vacant posts of Deputy Municipal Commissioner as per the Rules framed by the Municipal Corporation with the sanction of the State Government. There is no dispute that one post of Deputy Municipal Commissioner is vacant. It is also not in dispute that the Corporation has decided to fill in that post. There is also no dispute between the parties that the present vacancy in the post of Deputy Municipal Commissioner is to be filled in in accordance with the Rules framed under the Mumbai Municipal Corporation Act. Section 55 of the Mumbai Municipal Corporation Act lays down that the Government has power to create one or more post of Dy. Municipal Commissioner and make appoint to that post subject to confirmation by the State 3 Government. Sub-section 4 of Section 80B of the Act lays down that the Corporation in relation to the post of Dy.Municipal Commissioner which is the post included in clause (a) of sub-section 4 of Section 80B with the previous sanction of the State Government may frame Rules prescribing the qualification to be possessed by candidates for being eligible to be appointed for the said posts. Sub-section (5) of Section 80B requires that the Rules framed under sub- section 4 shall be published in the official gazette. From the record, it appears that the Rules relating to the recruitment to the post of Dy.Municipal Commissioner were framed in the year 1988. Those Rules provided that the post of Dy.Municipal Commissioner shall be filled in by promotion (a) of Head of the Department; (b) of Ward Officer; (c) and by deputation. It appears that a resolution was 4 passed by the Corporation dated 21-9-2000 proposing certain modifications in the existing Rules. That Resolution was submitted to the State Government for its sanction. But the State Government did not grant the sanction immediately. Ultimately, it appears that on 19-8-2003, the Commissioner wrote a letter to the Corporation suggesting certain modifications in the existing Rules relating to the promotion to the post of Dy.Municipal Commissioner. Pursuant to that letter, Resolution No.752 was passed by the Municipal Corporation on 20th November, 2003 deciding to approve the modification to the recruitment Ruless for the post of Dy. Municipal Commissioner as suggested by the Commissioner in its letter dated 19-8-2003. After Resolution No.752 dated 20th November, 2003 was passed, proposal was submitted to the State Government for approval of the 5 amendment to the recruitment Rules as suggested by the Resolution No.531 dated 21-9-2000 and the Resolution dated 752 dated 28-11-2003. The State Government by letter dated 4th October, 2006 granted its approval to the amendment of the Recruitment Rules suggested by the Resolution No.752 dated 20th November, 2003 with certain modifications. A compilation of resolutions passed by the Corporation from time to time in this regard, letter of the Commissioner dated 19-8-2003 and statement showing modifications suggested by the Corporation in the relevant Ruless from time to time has been made available to us. That statement reads as under:- STATEMENT - A Revised recruitment rules (Qualification) for the posts of Deputy Municipal Commissioner and Deputy Municipal Commissioner (Improvements) in M.C.G.M. Existing Recruit- ment Rules approved Revised Recruit- ment Rules sanction by Revised Recruit- ment Rules sanction by the 6 by the Corporation Resolution No. 275 dated 13.7.1987 and Govt. Resolution No.BMC-1536/4519 /CR-392/36/UD-3 dated 8.9.1987. Corporation Resolution No.531 dated 21.9.2000 Corporation Resolution No.751 of 20.11.2003 (1) (2) (3) Appointment to the post of Deputy Municipal Commissioner shall be made either - (a) By promotion from amongst the incumbents of the posts of Heads of Major Departments, or equivalent posts enumerated in the Scheduled appended to these rules, who have administrative experience for not less than 10 years in the posts not below the rank of Ward officer. OR (b) By promotion from amongst the Appointment to the post of Deputy Municipal Commissioner and Deputy Municipal Commissioner (Improvements)sha ll be made either - (a) By promotion from amongst the incumbents of the posts of Heads of Major Departments, or equivalent posts enumerated in the Scheduled incorporated in these rules, who have administrative experience for not less than 10 years in the posts not below the rank of Ward officer. OR (b) By promotion from amongst the incumbents of the Appointment to the post of Deputy Municipal Commissioner and Deputy Municipal Commissioner (Improvements)sha ll be made either - (a) By promotion from amongst the incumbents of the posts of Heads of Major Departments, or equivalent posts enumerated in the Scheduled incorporated in these rules, who have administrative experience for not less than 7 years in the posts not below the rank of Assistant Commissioner (Ward officer). OR (b) By promotion from amongst the incumbents of the 7 incumbents of the posts of Ward officers in the Municipal Corporation of Greater Bombay, who have experience for not less than 10 years in the posts not below the rank of Ward officer. OR (c) By selection from amongst the candidates who - (i) Unless already in the service of the Municipal Corporation of Greater Bombay are not more than 45 years of Age (50 years in case of candidates belonging to backward classes) (ii) Possess a degree in at least second Class or a degree in Engineering or Medicine of a Statutory University or the B.Sc. posts of Ward officer in the Municipal Corporation of Greater Mumbai, who have experience for not less than 10 years in the posts not below the rank of Ward officer. OR (c) By selection, it is only when the Municipal Administration feels necessary, then only 25% of the total pots of Deputy Municipal Commissioner from the amongst the candidates who- (i)Unless already in the service of the Municipal Corporation of Greater Mumbai are not more than 45 years of Age (50 years in case of candidates belonging to backward classes.) (ii) Possess a degree in at least Second Class in Arts, Science, Commerce or Law or a posts of Assistant Municipal Commissioner in the Municipal Corporation of Greater Mumbai, who have experience for not less than 7 years in the posts not below the rank of Assistant Commissioner (Ward officer). OR (c) By Selection, it is only when the Municipal Administration feels necessary then only 25% of the total posts of Deputy Municipal Commissioner from the amongst the candidates who - (i) Unless already in the service of the Municipal Corporation of Greater Mumbai are not more than 45 years of age (50 years in case of candidates belonging to backward classes) (ii) Possess a degree in at 8 (Estate Management) degree of London University, or are the follows of the Surveyor s Institutions (FSI) (Valuation) (by examination) or chartered Civil Engineers (India) ( By examination) AND (iii) After acquiring the qualification in clause (ii) above, have administrative experience in a large organization for not less than 10 years of which at least 5 years should be in a responsible capacity, and (iv) Possess adequate knowledge of degree in Engineering or Medicine of a Statutory University or the B.Sc.(Estate management) degree of the London University, or are the follows of the Surveyor s Institution (F.S.I.) (Valuation) by Examination) or chartered Civil Engineers (by examination) or Chartered Engineers (India) (By examination) AND (iii)After acquiring the qualification in clause (ii)above, have administrative experience in a large organisation for not less than 10 years of which at least 5 years should be in a responsible capacity, and; (iv) Possess adequate knowledge of least Second Class in Arts, Science, Commerce or Law or a degree in Engineering or Medicine of a Statutory University or the B.Sc. (Estate Management) degree of the London University, or are the follows of the Surveyor s Institution (FSI) (Valuation) (by Examination) or Chartered Civil Engineers (by examination) or Chartered Engineers (India) (By examination) AND (iii) After acquiring the qualification in clause (ii) above, have administrative experience in a large organization for not less than 10 years of which at least 5 years should be in a responsible capacity, and (iv) Possess adequate knowledge of 9 Marathi so as to be able to speak, read and write Marathi with facility; Provided that in respect of Engineering graduates and Medical graduates prescribed minimum administrative experience of 10 years should not be related wholly or mainly to the supervision of technical matters e.g. Preparation of plans and estimates execution of works, treatment of patients or other clinical works but should include experience related to administrative works in large organization for a period of not less than 5 years in a responsible capacity. Provided further that the Marathi so as to be able to speak, read and write Marathi with facility. Provided that in respect of Engineering graduates and Medical graduates prescribed minimum administrative experience of 10 years should not be related wholly or mainly to the supervision of technical matters e.g. preparation of plans and estimates execution of works, treatment of patients or other clinical works but should include experience related to administrative works in large organisation for a period of not less than 5 years in a responsible capacity. Provided further that the age limits may be relaxed by the appointing authority on the recommendation of the Maharashtra Marathi so as to be able to speak, read and write Marathi with facility; Provided that in respect of Engineering graduates and Medical graduates prescribed minimum administrative experience of 10 years should not be related wholly or mainly to the supervision of technical matters e.g. Preparation of plans and estimates execution of works, treatment of patients or other clinical works but should include experience related to administrative works in large organization for a period of not less than 5 years in a responsible capacity. Provided further that the age limits may be relaxed by the appointing authority on the 10 age limits may be relaxed by the appointing authority on the recommendation of the Maharashtra Public Service Commission in favour of candidates possessing exceptional qualifications or experience or both. 2. Appointment to the post of Deputy Municipal Commissioner (including the posts of Deputy Municipal Commissioner (Improvements) but excluding the posts of Deputy Municipal Commissioner on the Engineer side) by promotion of heads of major departments holders of equivalent posts ward officers, and by selection through the commission shall Public Service Commission in favour of candidates possessing exceptional qualifications or experience or both. (d) By transfer on deputation from State Government as Deputy Municipal Commissioner wherever Municipal Administration feels necessary. (2) Appointment to the post of Deputy Municipal Commissioner and Deputy Municipal Commissioner (Improvements) but excluding the posts of Deputy Municipal Commissioner (Engineering), Director (E.S.& P), Deputy Municipal Commissioner (Spl. Engineering) on the Engineering side by promotion of heads of major departments/holde r of equivalent posts/Ward recommendation of the Maharashtra Public Service Commission in favour of candidates possessing exceptional qualifications or experience or both. (d) By transfer on deputation from State Government as Deputy Municipal Commissioner wherever Municipal Administration feels necessary. (2) Appointment to the post of Deputy Municipal Commissioner and Deputy Municipal Commissioner (Improvements) but excluding the posts of Deputy Municipal Commissioner (Engineering), Director (E.S.& P), Deputy Municipal Commissioner (Spl. Engineering) on the Engineering side by promotion of heads of major departments/holde rs of equivalent posts/Ward 11 be made in ration 1:1, the vacancies being filled in by promotion and selection alternatively. Whether the posts earmarked for promotion be filled by promoting heads of Major departments or Ward officer shall be decided by the appointing authority on each occasion. officer shall made in the ratio 3:1 And by selection, it is only when the Municipal Administration feels necessary then only 25% of the total posts of Deputy Municipal Commissioner through the Maharashtra Public Service Commissioner and on Deputation from State Government whenever Municipal administration feels necessary. The order of promotion for the posts of Deputy Municipal Commissioner (Improvements) should as far as practicable, be as follows: Roster Points A A B A A-Promotion from Ward officer B-Promotion from Heads of Major Departments. officer shall made in the ratio 3:1. And by selection, it is only when the Municipal Administration feels necessary then only 25% of the total posts of Deputy Municipal Commissioner through the Maharashtra Public Service Commissioner and on Deputation from State Government whenever Municipal administration feels necessary. The order of promotion for the posts of Deputy Municipal Commissioner (Improvements) should as far as practicable, be as follows: Roster Points A B A A-Promotion from Assistant Commissioner (Ward officer) B-Promotion from Heads of Major 12 Schedule List of Heads of Major department of equivalent posts on the General Administration side: 1. Chief Accountant 2. Additional Chief Accountant 3. Joint Chief Accountant 4. Education Officer 5. Assessor & Collector 6. Executive Health Officer 7. Deans of Medical Colleges & Hospitals including Dental College. Schedule List of Heads of Major department of equivalent post on the General Administration side: 1. Chief Accountant/ Chief Accountant (Finance) 2. Additional Chief Accountant/Ch. Accountant (W.S.S.D.) 3. Joint Chief Accountant/Chief Accountant (Treasury) 4. Education Officer 5. Assessor & Collector 6. Executive Health Officer 7. Chief Fire Officer 8. Chief Accountant (Stores) Departments. Schedule List of Heads of Major department of equivalent post on the General Administration side: 1. Chief Accountant/ Chief Accountant (Finance) 2. Additional Chief Accountant/Ch. Accountant (W.S.S.D.) 3. Joint Chief Accountant/Chief Accountant (Treasury) 4. Education Officer 5. Assessor & Collector 6. Executive Health Officer 7. Chief Fire Officer 8. Chief Accountant (Stores) 2 Perusal of the statement quoted above shows that as per the Rules that were framed pursuant to the Resolution dated 13-7-1987, 13 the appointment to the post of Deputy Municipal Commissioner was made by promotion of a person holding the post of head of major department, by promotion of persons who are holding post of ward officer or by direct recruitment by selection of a person who is holding required qualification. The ratio was 1:1. It means that 50% of the posts were to be filled in by promoting head of major department and 50% of the posts were to be filled in by promotion of ward officer. By the Resolution No.531 dated 21-9-2000, modifications were suggested. Two categories were maintained as it is, namely promotion for ward officer and promotion for head of the major department. Appointment by selection was permitted, however, only if the Corporation thought it to be necessary and it was only to the extent of 25% of the total strength of Dy.Municipal Commissioners. One 14 more category was added, namely by transfer on deputation by the State Government. But as observed above, this proposal was not sanctioned till the Resolution No.752 dated 20th November, 2003 was passed. The modification suggested by the Resolution No. 752 dated 20th November, 2003 was that the post of Deputy Municipal Commissioner was to be filled in by promotion from head of the department from Asst.Municipal Commissioner/ Ward Officer, by direct recruitment and also by transfer on deputation. By transfer on deputation, the post was to be filled in only when the Corporation thinks it necessary. It was further provided that the quota would be 3:1. It appears from that Resolution that 75% of posts were to be filled in by promotion from Asst.Commissioners/Ward Officers and 25% posts were to be filled in by promotion of head of the Department. Though, it was 15 provided that the Corporation may fill in maximum 25% of the posts by direct recruitment, if the administration feels that it is necessary to do so and also by transfer. There was no specific quota allotted to them. The roaster that was suggested was, first vacancy to be filled in by promotion of Asst.Commissioner, second vacancy to be filled in by promotion of Asst.Commissioner, third vacancy to be filled in by promotion from Head of the Major Department. The Government by its letter dated 4th October, 2006 sanctioned the modification suggested by the Resolution No. 752 dated 20th November, 2003 with certain modifications. Relevant portion of the Government Resolution sanctioning the Resolution No.752 dated 20th November, 2003 reads as under:- The letter shown as reference No.4 16 herein above is being cancelled as far as it concern with the said Post. The Government approval to the CR No. 752 dtd.20/11/2003 of Revised Service Rules for the Entry Post of the Dy.M.C. Mumbai Municipal Corporation is being accorded as per the provision mentioned u/s 80 B (4) of the M.M.C.Act 1888 subject to the following amendment:- The Roaster point of Promotion in the proposal, be made applicable at the Ration 75:25 for A & B chronologically given as below, as proposed by the Corporation:- A- (From the Cadre Asstt.Municipal Commissioner) A. (From the Cadre of Asstt.Municipal Commissioner) B. (From HOD/Direct Recruit from 17 MPSC/Govt.Deputation) B. (From the Cadre of Asst.Municipal Commissioner) 3 It is clear that the Government did not sanction what was proposed by Resolution No.752 as it is. Modifications made by the Government were that 75% of the vacancies were to be filled in by promotion of Asst.Municipal Commissioner and 25% of the vacancies were to be filled in by promotion of head of the department, by direct recruitment and also by taking a person on deputation. Thus in the proposal though there was no specific quota earmarked for direct recruitment and personnel to be on deputation, the Government categorically laid down that 25% quota is earmarked for the Head of the Department, direct recruits and for deputation, and the Government also approved 18 the roaster accordingly. The roaster approved by the Government is that the first vacancy is to go to the Asst.Municipal Commissioner, second vacancy is also to go to the Asst.Municipal Commissioner and third vacancy will be filled either by promotion of H.O.D. Or by direct recruit by Maharashtra Public Service Commission or by accepting a person on deputation from the State Government. 4. So far as the Corporation is concerned, it does not dispute that it has to fill in the vacant post of Deputy Municipal Commissioner as per the Rules sanctioned by the State Government by its letter dated 4th October, 2006. Perusal of the relevant Rule as sanctioned by the Government s letter dated 4th October, 2006 shows that the first vacancy to be filled in according to Rules is to be filled in by promotion of a person 19 belonging to the cadre of Asst.Municipal Commsssioner. 5. As observed above, so far as the Corporation is concerned, according to the Corporation as soon as the modification in the Rule suggested by the Resolution No.752 dated 20-11-2003 was sanctioned by the State Government by letter dated 4th October, 2006, that modified Rule came into force and promotion is to be effected according to that Rule. . However, on behalf of other Respondents it was contended that even after the sanction of the State Government, the modified Rule does not come into force till the Rule is published in the Official Gazette. So far as the Corporation is concerned, the only dispute raised by it is 20 that the quota fixed by the Rules applies to the total compliments of the posts of Deputy Municipal Commissioner and not to the existing vacancy. In other words, according to the Corporation, the Corporation before effecting the promotion to the vacant post of Deputy Municipal Commissioner will have to see as to how many posts of Deputy Municipal Commissioner are presently held by the persons who were holding the post of Asst. Municipal Commissioner, how many posts are held by the persons who are holding the post of Head of Major Department or were directly recruited to that post and also as to how many posts have been filled in by taking personnels on deputation from the State Government. According to the Corporation, the first vacancy, therefore, will be used to complete the quota, if there is deficiency. 21 . In view of this submission, therefore, the question that arises for consideration is whether the quota fixed by the amended Rule and the Roaster which is a part of that Rule applies to the existing vacancy or to the total compliments of the posts. In our opinion, the submission of the Corporation that the Roaster which is given in the Rule will not operate in relation to the existing vacancy is not well founded. 6. In our opinion, that position becomes clear from perusal of the statement which we have quoted above. In paragraph 2 of Column 3 of Statement A, which we have quoted above it is stated that the post of Deputy Municipal Commissioner is to be filled in by appointment in the ratio of 3:1. It thus means that the ratio is to be applied to the vacant posts in relation to which the 22 appointment is to be made. Had the Rule making authority intended to apply the quota to the total number of posts that would have been specifically said. In the same Rule it is said By selection it is only when the Municipal Administration feels necessary then only 25% of the total post of Deputy Municipal Commissioner through M.P.S.C. Thus, when the Rule making authority wanted the total number of posts to be taken into consideration for earmarking the quota it has specifically so said. But in laying down the quota to be applied for filling in the post by promotion, the Rule making authority has not referred to the total number of the posts, but has referred to the appointment. It is further to be seen here that the State Government by its sanction letter has also prescribed the Roaster. Perusal of that Roaster does not leave one in any doubt that 23 the Roaster will have to be operated in relation to the existing vacancy and the first vacancy in the post of Deputy Municipal Commissioner, which is to be filled in after the Rule comes into force, will have to be filled in by promoting the person from the cadre of Asst.Municipal Commissioner. In our opinion, therefore, the Corporation will have to apply the roaster found in the Rules to the vacancies which are existing and are to be filled in. 7. On behalf of the Respondent Nos.3 & 5, it was contended that reading of Section 80B (4) & (5) it is clear that after obtaining previous sanction of the State Government, the Corporation has to frame Ruless and it has to be published in the official gazette. According to the learned Counsel, as the Rule which was framed by 24 Resolution No.752 dated 20-11-2003 and in relation to which the previous sanction has been given by the State Government by letter dated 4th October, 2006 is not published in the official gazette, therefore the Rule presently in force is Rule framed in 1987 and therefore promotions have to be made as per that Rule. In our opinion, the submission is not well founded. No doubt, there is a requirement of the Rule being published in the official gazette, but there is no provisions to be found that the Rule will not come into force till it is published in official gazette or that for making the Rule effective publication of that Rule in the official gazette is necessary. In our opinion, once the Corporation passes the resolution proposing amendment in the Rule and that proposal is sanctioned by the State Government, the Rule