1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1629 OF 1991. 1. Nandkishor Shriram Deo, Age 35 years, Methaji Plot, Near N.S.Patil Hospital, Bhusawal, Dist. Jalgaon. 2. Bhagwat Narayan Sarode, Age 27 years, Hanuman Nagar, Near Manorama Steel Industries, Bhusawal, Dist.Jalgaon. 3. Pramod Dnyandeo Patil, Age 30 years, Sahkar Nagar, Opp.State Bank, Bhusawal, Dist.Jalgaon. 4. Ashokkumar Mehrumal Motwani, H-28, R/o Badri Plots, Bhusawal,Dist.Jalgaon. 5. Pundlik Soma Koli, Age 29 years, R/o Old Satara, Bhusawal, Dist. Jalgaon. ... Petitioners. Versus 1. Bhusawal Municipal Council, through its Chief Officer, Bhusawal, Dist. Jalgaon. 2. The President, Bhusawal Municipal Council, Bhusawal, Dist. Jalgaon. 3. The Collector, Jalgaon, Dist. Jalgaon. 2 4. The Commissioner, Nasik Region, Nasik, Post Box No.32, Nasik Road, Nasik. 5. The State of Maharashtra ... Respondents. ... Mr.L.V.Sangit, advocate holindg for Mr.V.J.Dixit, Sr.counsel, for the petitioners. Mr.G.V.Wani, advocate for the Respondent Nos.1 and 2. Mr.N.N.Jadhav, A.G.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 29.01.2010. ORAL JUDGMENT 1. The petitioners were appointed by the then President of the Municipal Council, Bhusawal, by orders dated 24.12.1986 and 22.6.1987. They were appointed as Internal auditor, telephone operator, water supply clerk, Ambulance driver and Ambulance cleaner respectively. The President issued the appointment orders under his signatures. The petitioners submitted a joint application for their confirmation in the service. For, their initial appointment was on adhoc basis and they 3 were temporary employees. The Municipal Council resolved in a meeting dated 25.1.1988 to regularise the services of the petitioners. They were confirmed under the Resolution passed by the Municipal Committee. However, no further orders of confirmation were issued to them. 2. On report of the Chief Officer, the District Collector scrutinised the Resolutions passed by the Municipal Council. The Collector considered the fact that the petitioners were not recruited by following due procedure. The Collector held that the subject pertaining to appointment of the petitioners could not be treated as the subject for discussion when it was not on agenda and was taken up at the 11th hour during course of the meeting. The Collector further held that the appointment letters were issued on 24.4.1988 in pursuance to the office note dated 24.4.1988 but the date of the office note and as well of the appointment letter was changed to 25.1.1988. The Municipal Resolution was held as bad in law and, therefore, was suspended in the exercise of powers U/s 308(1) of 4 the Maharashtra (Municipal Councils), (Nagar Panchayats) and Industrial Townships Act, 1965. The President of the Municipal Council and the Municipal Council referred the matter to the Divisional Commissioner. The Divisional Commissioner confirmed the order rendered by the Collector in the exercise of powers U/s 308(4) of the Act. 3. The petitioners impugn the orders of the Collector and the Divisional Commissioner vide the present Writ Petition. They would submit that the requirement to appear before the Selection Committee was not necessary. They would submit that the Divisional Selection Board was subsequently constituted with effect from 9.2.1988. They would submit that the Resolution No.36 was rendered on 25.1.1988 and, therefore, the petitioners were not required to be appointed through the selection process which was envisaged at later point of time. 4. The petitioners were given respite by this Court by way of interim relief as per prayer 5 clause (C). They were continued in service subject to final out-come of the present petition. They are on verge of retirement. 5. Heard learned counsel for the petitioners and the Respondent Nos.1 and 2 and learned A.G.P. for the Respondent Nos.3 to 5. 6. It is well settled that the President has no power to appoint any employee on establishment of the Municipal Council. The appointment letters must be issued by the Chief Executive Officer of the Municipal Council. What transpires from the record is that the appointments were made by the President of the Municipal Council by issuing appointment letters under his signatures. The President's power does not hold field in the process of selection and appointment of employees. The relevant provision of Section 76 of the Maharashtra (Municipal Councils),(Nagar Panchayats) and Industrial Townships Act, 1965 reads as follows : "76. Appointment of other Officers 6 and servants. - (1) A Council may, with the sanction of the Director, create such posts of officers and servants other than those specified in sub-sections (1) and (2) [of Section 75] as it shall deem necessary for efficient execution of its duties under this Act. (2) Subject to the provisions of sub-section (3), the qualifications, pay, allowances and other conditions of service and the method of recruitment of any such officers and servants, excluding the posts equivalent to Class IV posts in the State Government, shall be determined by general or special order made by the Director in this behalf. In case of posts equivalent to Class IV posts in the services of the State Government, the qualifications, pay, allowances and other conditions of service and method of recruitment shall be determined by bye-laws made 7 by the Council in this behalf. (3) Subject to any general or special orders, which may, from time to time, be made by the State Government in this behalf, appointments to the posts created under sub-section (1), shall be made by the Chief Officer from the list of the candidates selected by such selection authority or such other body, as the State Government may, by general or special order, specify. (4) No Council shall employ any person, who has not completed fifteen years, to serve as a member of its sanitary staff." A plain reading of Section 77 reveals that the Chief Officer is required to take steps to give effect to all the Resolutions of the Council. A conjoint reading of Section 75 to 77 will make it amply clear that the appointment of the staff members is required to be made in accordance with 8 the procedure envisaged under the provision of Section 76 and the Rules. The posts could not be filled in at the whims of the President of the Municipal Council. There was no advertisement of posts. There was no screening of the applications of the petitioners through a proper Scrutiny Committee. There was no selection through the nominated Selection Committee. The petitioners were working as temporary servants without any legal and valid appointment when the Municipal Council resolved to confirm their services. In other words, the Resolution NO.36 dated 25.1.1988 was adopted without considering legal status of the petitioners and without giving any thought to the powers of the President to appoint them. The Municipal Council could not have allowed such back door entry of the petitioners in the Municipal service. 7. As stated before, the learned Collector noticed that there was interpolation in the dates of the appointment letters. The office note was, in fact, dated 24.4.1988 and the letters were issued on the same date but subsequently the 9 Superintendent of the Municipal office altered the date as 20.1.1988. Thus, the Collector came to the conclusion that there was interpolation and fabrication of the relevant record. He also noticed that lists were not called from the Employment Exchange and other Departments. There were other defects. It is obvious that the Municipal Resolution hastily was brought about in order to favour the petitioners for their illegal continuation in the employment. Under these circumstances, the Collector was right while suspending the Resolution No.36 which was found to be against the public interest. The petitioners were required to be recruited by following due procedure. The State Selection Board came into existence w.e.f. 9.2.1988. It is more probable that in order to obviate the difficulty of continuing the services of the petitioners due to the requirement of selection by the State Selection Board, the Municipal Council hastily resolved to grant them benefit of permanency. Under these circumstances, the impugned orders can not be faulted with. The petitioners could not be treated as workmen for 10 the purpose of granting any benefit under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, nor they had gone to the Industrial Court in order to ventilate their grievances. 8. For the reasons aforestated, I do not find any merit in the petition. Hence, the petition is dismissed. No order as to costs. The Respondents shall not, however, initiate any recovery proceedings against the petitioners in respect of the pay received by them during the intervening period. The interim relief stands vacated. (V.R.KINGAONKAR,J.) asp/office/wp162991