1 261.06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.261 OF 2006 IN WRIT PETITION NO.1910 OF 2005 Shri.Yeshwant Surve & Ors. ...Petitioners Versus The Municipal Corporation of Greater Bombay & Ors. ...Respondents And Shri.Ganesh Anandrao Harane & Ors. ...Applicants ...... Mr.Arshad Shaikh with Mr.Ramesh Ramamurthy for Applicants/ Respondents 5 to 10 in support of Notice of Motion. Mrs.Anjali Purav for Petitioners. Mr.Ram Apte, Sr.Advocate with Ms.P.A.Purandare for Respondents 1 & 2. Mr.V.A.Gangal, Spl.Counsel with Mr.D.A.Nalawade, Govt.Pleader for Respondents 3 and 4. ...... CORAM:- A.M.KHANWILKAR AND MRS.MRIDULA BHATKAR, JJ. DATED:- MARCH 28, 2011. P.C. 1. By this Motion, the respondent Nos.5 to 10 in Writ Petition have asked for several reliefs. However, after hearing Counsel for the parties we would only observe that in this Motion, we can only consider prayer for 2 261.06 clarification of the order already passed on 30th June, 2005 in WP No. 1910/2005 (Lodging No.1601/2005). The said Writ Petition was not only admitted but also interim relief in terms of prayer clauses (e), (f) and (g) of the Writ Petition was granted after hearing Counsel appearing for the respective parties. The Respondents 5 to 10, however, have been impleaded at a later date on 20th March, 2006. After the said Respondents 5 to 10 came to be impleaded in the said Writ Petition, they have approached this Court by way of present Motion for the reliefs referred to therein. 2. Needless to observe that the said Respondents cannot be allowed to pray for relief which is either inconsistent with the substantive relief claimed by the Writ Petitioners and in any case, a substantive relief which the Respondents may have to pursue by way of substantive proceedings. In that sense, we would only consider the grievance of the Respondents as to whether the interim relief granted on 30th June, 2005 in terms of prayer clauses (e), (f) and (g) deserves to be clarified. 3. For persuading this Court to vacate the said interim relief, one of the argument canvassed before us is that the present Motion was filed on 4th May, 2006 but the same has remained undecided so far and by operation of 3 261.06 Article 226(3) of the Constitution of India, the Court will have to proceed on the basis that the interim relief already stands vacated by operation of law. This argument does not commend to us. 4. In the first place, there is no express relief in the Motion for vacating the interim relief granted on 30th June, 2005 in the Writ Petition. Besides, as aforesaid, the said relief was granted on 30th June, 2005 after hearing Counsel appearing for the contesting respondents, who were named as Respondents at the relevant time. For which reason, the rigours of Article 226(3) will have no application. Counsel for the Respondents 5 to 10, however, contends that the said Respondents have been impleaded only pursuant to order dated 20th March, 2006 and after being impleaded, they have moved the present Motion on 4th May, 2006. According to him, since the said Respondents were not before the Court on 30th June, 2005, it was open for these Respondents to contend that the provisions of Article 226 (3) of the Constitution would come into play. As aforesaid, we are not impressed by this submission. 5. When this opinion was indicated to the Counsel for the respondents 5 to 10, he would submit that the Court may consider the request of the said 4 261.06 Respondents to clarify the order dated 30th June, 2005. The gravamen of the grievance of the said Respondents 5 to 10, is that, before coming into force of the Act of 2004, the Corporation was following policy in terms of Resolution No.203 dated 6th May, 2005 to extend reservation for the period from 24th November, 1997 to 28th January, 2004. The said policy is not the subject matter of challenge in the Writ Petition No.1910/2005 (Lodging No. 1601/2005). However, on account of the interim relief granted by this Court on 30th June, 2005, the Corporation has stopped extending the said policy of 1997 to the said Respondents/Applicants and similarly placed persons. 6. In the affidavit in support of the Notice of Motion No.463 of 2009 filed by the Corporation, in paragraph 4, the Corporation has admitted that by Resolution No.203 dated 6th May, 2005, the Municipal Corporation of Greater Mumbai approved a policy of reservation till the post of Sub- Engineer/Office Superintendent for the Municipal employees from backward class for the period from 24th November, 1997 to 28th January, 2004. However, on adverting to the reliefs claimed in the Writ Petition, and more particularly, the interim relief granted in terms of prayer clauses (e), (f) and (g) of the Writ Petition, the writ Petitioners have confined their challenge to the Government Resolution dated 25th May, 2004 and 5 261.06 Government Resolution dated 6th May, 2005, only to the extent of applying the policy of reservation to the post above Sub-Engineer/Office Superintendent to the municipal employees from backward class for the period from 24th November, 1997 to 28th January, 2004. 7. Going by the affidavit filed by the Corporation before this Court, it is amply clear that the policy of reservation of 1997 was extended only till the post of Sub-Engineer/Office Superintendent when the Writ Petition No. 1910/2005 (Lodging No.1601/2005) came to be filed. It is indisputable that the interim relief dated 30th June, 2005 as granted by this Court restrains the Corporation from giving effect to the impugned Resolutions to apply the policy of reservation to post higher than the post of Sub-Engineer/Office Superintendent for municipal employees. Since stay has been granted after hearing the respondents at the relevant time and since the writ petition is already pending for final hearing, the question that needs to be considered in this Motion is limited to one of clarifying the scope of order dated 30th June, 2005. 8. In view of the earlier discussion, we clarify the position that the order dated 30th June, 2005 passed by this Court would mean that the Corporation 6 261.06 is free to apply the policy of reservation till the post of Sub-Engineer/Office Superintendent to the municipal employees from backward class. 9. The Counsel appearing for the State invited our attention to the order dated 9th March, 2007 passed by another Division Bench of this Court in Civil Application No.3130/2006 along with companion applications in Writ Petition No.845/2004. In his submission, the effect of the said order is to vacate the order dated 30th June, 2005 passed in Writ Petition No.1910/2005 (Lodging No.1601/2005). In the first place, the said Writ Petition is an independent Writ Petition. The said order makes no reference to vacation of order dated 30th June, 2005. In view of the fact that further order has been passed dated 9th March, 2007, which would govern the scheme of promotion in the Corporation, the Corporation as well as the State is free to pursue the matter on the basis of that order which has been modified by the Supreme Court on 28th March, 2008 in SLP (Civil) No.18534/18537 of 2007. 10. If there is any conflict while giving effect to the order dated 30th June, 2005 and the subsequent order passed by the Supreme Court on 28th May, 2008, needless to observe that the Corporation and the State will have to 7 261.06 give effect to the order of the Supreme Court. Save and except stating this, we do not think it necessary to clarify the order dated 30th June, 2005 any further. 11. At this stage, Counsel for the Respondents 5 to 10 submits that the Court may place it on record that the claim of the said Respondents is that the reservation policy of 1997 ought to apply up to the post of Executive Engineer. The said Respondents 5 to 10 are free to pursue appropriate remedy as may be advised in that regard. That contention will have to be addressed in those proceedings. 12. Notice of Motion disposed of accordingly. (MRS.MRIDULA BHATKAR, J.) (A.M.KHANWILKAR, J.)