Commr.Mun.Corp.Of Gr.Mumbai vs Anil Shantaram Khoje & Ors

2. Although interim orders have not been granted in the appeal arising out of SLP(C) No.15868 of 2010, in the accompanying matter it had been ordered on 01.07.2011 that any promotion that may be made would be subject to the result of the petition.

3. The writ petitioners before the High Court of Bombay were working in the Mumbai Municipal Corporation of Greater Mumbai as Assistant Municipal Commissioners and had prayed that their promotion to the vacant posts of Deputy Municipal Commissioner may be effected in accordance with the Rules framed under the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as the “M.M.C. Act”). The relevant provisions are Sections 55 and 80B of the M.M.C. Act. Section 55 authorizes the Corporation to appoint Deputy Municipal Commissioner subject to confirmation by the State Government whereas sub-Section (4) of Section 80B of the M.M.C. Act requires the Corporation to frame Rules stipulating the eligibility and qualification criteria for the post of Deputy Municipal Commissioner in the Mumbai Municipal Corporation; sub-Section (5) thereafter requires the Rules so framed to be published in the Official Gazette. It appears that the previous Rules were framed in the year 1988 and were duly published in the Official Gazette on 18.08.1988, according to which the post of Deputy Municipal Commissioner was to be filled in by way of promotion from the post of Heads of Major Department (hereinafter referred to as “HOD”) or holders of equivalent posts having administrative experience of not less than 10 years or Ward Officers on the one hand and by selection through the Maharashtra Public Service Commission on the other in the ratio of 1:1, the vacancies being filled in by promotion and selection alternatively. The Roster points indicated in the Rules were: A/C/B/C/A/C (A – promotion of Ward Officer, B – promotion from HODs and C – selection through MPSC). It was further clarified that the appointing authority will decide whether the post earmarked for promotion is to be filled in by promoting HOD or Ward Officer. Thereafter, the Corporation proposed modifications in the then existing Rules in terms of Resolution No. 531 dated 21.09.2000, which were duly submitted to the State Government for according its approval. The State Government, however, neglected to grant sanction to the said Resolution and as a consequence the Commissioner addressed a letter dated 19.08.2003 to the Corporation suggesting other modifications in the Rules relating to promotions. These suggested amendments came to be approved by the Corporation leading to the passing of Resolution No. 752 dated 20.11.2003 amending the then existing Recruitment Rules and these were then forwarded to the State Government for its approval. The State Government accorded its approval with certain modifications with respect to the chronology to be followed in the Roster and appointment by way of deputation/transfer, unfortunately almost three years later vide its letter dated 04.10.2006. The said Resolution required 75% of the said posts to be filled in by promotion from the Assistant Municipal Commissioners/Ward Officers and 25% to be filled in by promotion of HOD, direct recruitment or by deputation. The Roster fixation indicated that the first and second vacancy has to be filled in by promotion from amongst Assistant Municipal Commissioners whereas the third vacancy would be filled up by promotion of HODs or direct recruitment or by deputation and the fourth vacancy would go to the Assistant Municipal Commissioner and so on and so forth.

12. We, however, uphold the view of the High Court that, keeping the nature of the reliefs in the writ petition in perspective, the Roster has to be determined by the Mumbai Municipal Corporation in accordance with the extant Rules and all concerned officers would then be entitled to challenge the fixation, if they are aggrieved and if so advised.

13. The Appeals are allowed in the above terms, leaving all the parties to bear their respective costs.

………………………J (T.S. THAKUR) ………………………J (VIKRAMAJIT SEN) NEW DELHI;

February 28, 2014.