1 caw1155-11.doc ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1155 OF 2011 IN WRIT PETITION NO.6058 OF 2010 Ashok Santram Kolekar and Another .. Petitioners Vs. Brihanmumbai Mahanagar Palika, Mumbai and Ors. .. Respondents Mr.D.A.Nalawade i/b Mr.Ravindra A. Lokhande for the petitioners Mr.R.A.Thorat i/b Mr.M.M.Malvankar for respondent nos.1 to 5 Mr.PG.Sawant, ‘B’ Panel for respondent no.6 Mr.R.V.Govilkar for respondent no.7 CORAM: K.K. TATED, J. DATE: 27th JULY, 2011 PC: 1. Heard the learned counsel for the parties. 2. This Civil Application is preferred by original petitioners seeking relief restraining the respondent Municipal Corporation from further recruitment on the basis of the Certificate issued by the All India Institute of Local Self Government on the post 2 caw1155-11.doc of Junior Overseers and direction to the Corporation to appoint the applicants on probation as Junior Overseers. 3. Initially, the Corporation issued circular dt.4.7.07 seeking applications for the post of Junior Overseers. Pursuant to the said circular, the applicants applied for the said post. As they were holding Diploma in sanitary Inspectors from Marathwada Technical Education Board, the respondent Corporation rejected their application on the ground that the said Marathwada Board of Technical Education is not recognised by the Maharashtra Board of Technical Education, Mumbai. 4. Being aggrieved by the said action of the respondents, the applicants referred the dispute to the Industrial Court by filing complaint (ULP) No.173 of 2008 under items 5 and 9 of Schedule IV of MRTU and PULP Act, 1971. The said complaint was dismissed by the Industrial Court. Being aggrieved by the order dt.19.3.2010, the applicants preferred the present writ petition. The present petition was admitted by this court on 12.10.2010 and made it clear that the selections made to the post of Junior Overseers under the select list which is challenged will be subject to the result of the writ petition. 5. During the pendency of the present petition, the respondent 3 caw1155-11.doc Corporation issued another circular dt.3.9.2010 calling upon the applicants for 164 posts of Junior Overseers. In the said circular dt.3.9.2010 the Corporation stated that the persons who have acquired the diploma of sanitary Inspector from All India Institute of Local Self Government or any other recognised Government / Institution are entitled to make application. In view of the subsequent circular dt.3.9.2010 applicants filed present application for the following reliefs: “(a) This Hon’ble Court be pleased to stay the further recruitment on the basis of the Certificate issued by the All India Local Self Institute on the post of Junior Oversees. (b) Pending the hearing and final disposal of this Writ Petition, this Hon’ble Court be pleased direct the respondent corporation to appoint the applicants on the probation as Junior Oversees. (c) This Hon’ble Court be pleased to give a fixed date of hearing. (d) Any other order deemed fit in the interest of justice be passed in favour of the petitioners/applicant.” 6. The learned counsel for the applicant submits that though the Diploma for Junior Overseers from All India Institute of Local Self Government is not recognised by the Maharashtra Board of Technical Education, respondent Corporation called upon applications from the Diploma holders from the same 4 caw1155-11.doc institution or other institutions which were recognised by the Government but they are not considering the applicants’ application as diploma is from Marathwada Board of Technical Education. He further submits that the issue whether the Corporation can deny the post of Junior Overseers to the persons who secured diploma in Sanitary Inspector from either Marathwada Board of Technical examination or from All India Institute of Local Self Government is pending before this court in the present petition. He further submits that even respondent no.7 filed their affidavit in reply stating that the course of sanitary Inspector in All India Institute of Local Self Government is not recognised by them. Therefore, the Corporation should be restrained from deputing the persons on the basis of certificate issued by All India Institute of Local Self Government for the post of Junior Overseers. 7. On the other hand, the learned counsel for respondent Corporation vehemently opposed the present Civil Application. He submits that the prayers made in the present Civil Application cannot be considered as the petitioner in the main petition challenges the order passed by Industrial Court under Articles 226 and 227 of the Constitution of India. He further 5 caw1155-11.doc submits that the prayers in Civil Application are altogether different from the main petition and therefore, the same cannot be considered. He submits that as per latest circular issued on 3.9.10 calling the applications for the post of Junior Overseers, they specifically stated that the candidates who acquired the Diploma in sanitary Inspectors either from All India Institute of Local Self Government or from any other recognised institution by the Government are entitled to file application. Therefore, there is a separate cause of action and same cannot be considered by way of Civil Application as claimed by the applicant. 8. I have gone through the impugned order passed by the Industrial Court in complaint (ULP) No.173 of 2008, circulars dt.4.7.2007 and 3.9.10. It is crystal clear from the bare reading of the previous circular wherein the respondent Corporation specifically stated that the candidates who are holding Diploma in sanitary Inspector from recognised institution are entitled to make application, whereas in the present circular dt.3.9.10, the Corporation specifically stated that the candidates who secured Diploma in sanitary Inspector from All India Institute of Local Self Government or from any other institution which is 6 caw1155-11.doc recognised by the Government are entitled to make application. This shows that in the present case, the Corporation specifically allowed the candidates who have obtained Diploma from All India Institute of Local Self Government. 9. That was not the case in previous dispute which is pending in the present Writ Petition No.6058 of 2010. Therefore, I do not find any reason restraining respondent Corporation from appointing the candidates those who are holding diploma in sanitary Inspector from All India Institute of Local Self Government for the post of Junior Overseers. Therefore, Civil Application is dismissed. (K.K.TATED,J.)