2015(5) ALL MR 174
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
S. V. GANGAPURWALA AND A. M. BADAR, JJ.
Sunil Sayanna Kotgire & Ors. Vs. The State of Maharashtra & Ors.
Writ Petition No.1342 of 2012
14th August, 2014.
Petitioner Counsel: Mr. AJAY S. DESHPANDE
Respondent Counsel: Mrs. M.S. PATNI, Mr. M.V. DESHPANDE, Mr. M.V. GHATGE
Bombay Provincial Municipal Corporations Act (1949), S.493 - Bombay Village Panchayat Employees (Conditions of Service) Rules (1960), Rr.4, 6 - Absorption of employees of village panchayat into Municipal Corporation - Inclusion of village panchayat into municipal limits - Service conditions as on the notified date, stand protected. (Paras 12, 13, 16)
3. The petitioners herein were employees of Grampanchayat Taroda (kh.) and Taroda (Bk.). The petitioner No.1 was appointed in Grampanchayat Taroda (Kh.) as a Junior Clerk on 30.12.1991 and promoted as Senior Clerk on 20.7.2001. The petitioner No.2 was appointed as Junior Clerk with Grampanchayat Taroda (Bk.) on 14.8.1988 and was promoted as Senior Clerk on 26.2.2009. The petitioners Nos.3 and 4 were appointed as Junior Clerks with Grampanchayat Taroda (bk.) on 18.3.1998 and promoted as Senior Clerks on 26.2.2009.
5. The services of employees of these two Grampanchayats stood transferred to the Municipal Corporation. By the impugned orders the petitioners are absorbed as Clerks and not as Senior Clerks. Aggrieved thereby, the present Petition.
A) The petitioners on the date of issuance of notification merging the Village Panchayats with the Municipal corporation were working as Senior Clerks and they are required to be absorbed as Senior Clerks. The learned counsel relies on the Resolution passed by the General Body of the Municipal Corporation dated 18.8.2009 to submit that 24 employees of these two Grampanchayats are to be absorbed and the proposal for sanction and creation of 24 posts of Class III and Class IV of these employees be forwarded.
B) Pursuant to the Resolution of the General Body, the Assistant Commissioner issued order dated 26.8.2009 and directed petitioner No.4 to work as Senior Recovery Clerk in Ward Nos.2 and 4. So also the Commissioner vide order dated 8.9.2009, directed petitioner Nos.1 and 3 to work as Senior Recovery Officer and petitioner No.2 as Office Superintendent.
C) Pursuant to Resolution No.83 and the proposal submitted by Municipal Corporation, the Government sanctioned 24 posts, so as to accommodate the employees of said two Grampanchayats i.e. Taroda (Bk.) and Taroda (Kh.) vide G.R. dt.3.7.2010. Out of these 24 posts, four posts were meant for Senior Clerks.
D) When the Government has sanctioned these posts for the employees of the Grampanchayat and the petitioners are the one who were working as Senior Clerks and the said posts were sanctioned by the Government for the petitioners then the Respondent Corporation can not pass an order absorbing the petitioners as Clerks and not Senior Clerks.
E) While working with the Municipal Corporation, the petitioners 1,3 and 4 were issued identity cards and their designation was shown as Senior Recovery Clerks, whereas that of petitioner No.2 was shown as Office Superintendent.
F) While working with the Village Panchayats the petitioners services were governed by the provisions of the Bombay Village Panchayats Act, read with Bombay Village Panchayat Employees (Conditions of Service) Rules, 1960 and as per Rule 4 the Panchayat is empowered to appoint, allocate the work, determine salary, leave, promotion etc. Pursuant to the powers vested the Village Panchayat, the petitioners were promoted as Senior Clerks. The petitioner No.1 was promoted on 20.7.2001 and other petitioners were promoted on 26.2.2009.
G) The Municipal Corporation had passed a Resolution for cancelling the earlier Resolution and absorbing the present petitioners as Clerks, however, the Government rejected the same. This has happened on three occasions, still, the Respondents are not abiding by the Government Resolution. The impugned orders deserve to be quashed and set aside and petitioners are required to be directed to be absorbed as Senior Clerks.
(A) Earlier a mistake was committed by the Municipal Corporation. Wrong information was submitted by the incharge Office Superintendent. Inquiry was also conducted against him and was found guilty and punished by order of reversion to the post of Clerk. The incharge Office Superintendent committed a mischief. There are no posts of Senior Clerks with the Village Panchayat. When there are no posts of Senior Clerks in the Village Panchayat, the petitioners could not have been designated as Senior Clerks. The learned counsel relies on the Government Resolution dated 21.1.2000 to submit that the post of Senior Clerk is not admissible.
(B) The Corporation was required to send proposal for approval by the State Government to accommodate the employees of Village Panchayat. The General Body passed the Resolution for accommodating the employees by Resolution dated 18.8.2009. This proposal was not on agenda and was proposed out of turn. In fact, the proposal is to be prepared by the administration for placing it on the agenda of the General Body but the Resolution passed was not proposal submitted by the administration. In the said proposal also it was not indicated, how many employees from Class III and Class IV with their designations were to be accommodated. The incharge Office Superintendent wrongly shown the name of employees, post held by concerned employee by showing the post of Senior Clerks as four (4) in number, Junior Clerks 11 and nine Peons of Village Panchayat, Taroda (Kh.). This sanction of four (4) posts for employees of Village Panchayat as Senior Clerks resulted into granting sanction to unqualified, undeserving employees for which the only incharge Office Superintendent is responsible.
(C) While rejecting the proposal U/s 451 of the Bombay Provincial Municipal Corporation Act, the State Government did not consider the population of Taroda (Kh.) and Taroda (Bk.) to hold that no post of Senior Clerk is admissible in said Grampanchayat. Even if the State Government has refused to rescind the resolution of the Municipal Corporation, still, this Court can consider the same. The petitioners have given undertaking by executing the bond that their seniority would be counted from the date of their absorption. They are bound by their undertaking.
8. Mr.Ghatge, learned counsel for the Respondents - employees of Municipal Corporation strenuously submits that there was conspiracy amongst the petitioners and the members of the Village Panchayats from the date of notification itself. Since 1998, there is no change of workload though petitioner No.1 is shown to have been promoted in the year 2001 as Senior Clerk, however, petitioners Nos.2 to 4 have been shown to be promoted on 26.2.2009. The learned counsel submits that on 12.12.2008 there was declaration and the merger of these Village Panchayats with the Municipal Corporation took place on 2.7.2009. These petitioners were knowing about the factum of merger and that is why they entered into the conspiracy with the Village Panchayat officials and have shown them to be promoted on 26.2.2009. The Resolutions promoting the petitioners as produced before this Court are not genuine. Even signature of Sarpanch does not appear. According to the learned counsel, the terms and conditions of service of petitioners were never changed from the date of their appointments. The learned counsel submits that as per Section 53 of the Bombay Provincial Municipal Corporation Act, the power of appointing Municipal Officers vests with the corporation and it is the prerogative of the Corporation to appoint employees. The learned counsel submits that the right of the present Respondents to be considered for promotion would be affected. The Corporation has rightly taken the decision. The petitioners were working on monthly consolidated pay with the Grampanchayats. In the Municipal Corporation they will benefited and earning much more. The communication of Chief Executive Officer, Zilla Parishad, Nanded also clearly states that the Zilla Parishad has not approved the post of Senior Clerks with the Grampanchayats. The sanction granted by the State Government is not binding upon the Corporation.
|BOMBAY PROVINCIAL MUMICIPAL
|“Sec. 493. Transitory provisions.|
|The provisions of Appendix IV shall apply to the constitution of the Corporation and other matters specified therein.”|
|1. x x x x|
|2. x x x x|
|3. x x x x|
|4. x x x x|
|5. Continuation of appointments, taxes, budget estimates, assessment, etc.|
|Save as expressly provided by the provisions of this Appendix or by a notification issued under paragraph 22 or order made under paragraph 23, -|
|(a) any appointment, notification, notice, tax, order, scheme, licence, permission, rule, bye-law or form made, issued, imposed or granted under [the Maharashtra Municipalities Act, 1965] or any other law in force in any local area constituted to be a City immediately, before the appointed day shall, in so far as it is not inconsistent with the provisions of this Act, continue in force until it is superseded by any appointment, notification, notice, tax, order, scheme, licence, permission, rule, bye-law, or form made, issued, imposed or granted under this Act or any other law as aforesaid, as the case may be;|
|(b) all budget estimates, assessments, valuations, measurements, and divisions made under [the Maharashtra Municipalities Act, 1965] or any other law in force in any area constituted to be a City immediately before the appointed day shall in so far as they are consistent with the provisions of this Act, be deemed to have been made under this Act;|
|c) all officers and servants in the employ of the said municipality or local authority immediately before the appointed day shall be officers and servants employed by the Corporation under this Act and shall, until other provision is made in accordance with the provisions of this Act, receive salaries and allowances and be subject to the conditions of service to which they were entitled to subject on such date;|
|Provided that service rendered by such officers and servants before the appointed day shall be deemed to be service rendered in the service of the corporation:|
|Provided further that it shall be competent to the Corporation to discontinue the services of any officer or servant who, in its opinion, is not necessary or suitable to the requirements of the municipal service, after giving such officer or servant, such notice as is required to be given by the terms of his employment and every officer or servant whose services are so discontinued, shall be entitled to such leave, pension or gratuity as he would have been entitled to take or receive on being invalided out of service if this Act had not been passed.”|
|51. Number, designations, grades, etc. of other municipal officers and servants.|
|(1) Subject to the provisions of sub-section (4), the Standing Committee shall form time to time determine the number, designations, grades, salaries, fees, and allowances of auditors, assistant auditors’, officers, clerks and servants to be immediately subordinate to the Municipal Chief Auditor and the Municipal Secretary respectively.|
|(2) The Commissioner shall, from time to time, prepare and bring before the Standing Committee a statement setting forth the number, designations and grades of the other officers and servants who should in his opinion be maintained, and the amount and nature of the salaries, fees and allowances which he proposes should be paid to each.|
|(3) The Standing Committee shall, subject to the provisions of sub-section (4), sanction such statement either as it stands or subject to such modifications as it deems expedient.|
|(4) No new posts of the officers and servants of the Corporation shall be created without the prior sanction of the State Government:”|
10. It is not disputed that the petitioners were employees of the erstwhile Grampanchayat Taroda (Kh.) and Taroda (Bk.). These two Village Panchayats were brought within the Municipal limits of Respondent Nanded Waghala Municipal Corporation vide notification dated 1.7.2009. Twenty four employees of these two Village Panchayats were sought to be absorbed with the Municipal Corporation. The Resolution bearing No.83 dated 18.8.2009 was also passed by the General Body of the Municipal Corporation to absorb these 24 employees of village Panchayat as employees of Municipal Corporation. Pursuant to the said resolution, the Commissioner of the Municipal Corporation on 3.5.2010 sent a proposal to the State Government in consonance with Sec. 51(4) of the B. P. M. C. Act for sanction and creation of the posts on the establishment of Municipal Corporation to accommodate the employees of these two Village Panchayats which are 24 in number and while sending the proposal had sought sanction of four posts for Senior Clerks, 11 posts of Junior Clerks and 9 posts of Peons. Upon receipt of the said proposal the State Government vide Resolution dated 3.7.2010 sanctioned four (4) posts for Senior Clerks in the pay-scale of Rs.4000-6000, 11 posts of Junior Clerks in the pay-scale of Rs.3050-4590, 9 posts of Peons in the pay-scale of Rs.2,500-3200 i.e. total 24 posts.
11. It would also be seen that the Commissioner vide orders dated 26.8.2009 and 8.9.2009 directed the petitioner Nos.1,3 and 4 to work as Senior Clerks and petitioner No.2 as Office Superintendent and these petitioners were discharging their duties as such. It is on the complaint made by one Corporator,the Corporation again took up the proceedings and it seems passed a Resolution No.37 on 30.6.2011 to transfer four posts of Senior Clerks on the establishment of Municipal Corporation and to accommodate four employees of Village Panchayats as Junior Clerks and other 20 posts as per entitlement. This Resolution was not approved by the State Government and the proposal to approve the same is rejected by the State Government. Not only that twice thereafter similar proposals were moved by the Respondent Corporation to the State Government, however, the same are rejected. The request to transfer the said posts to the establishment of Corporation is rejected and the State Government is firm that the four posts of Senior Clerks is meant for the employees who are absorbed from the Village Panchayats.
12. Apart from the aforesaid resolution being sanctioned by the State Government the matter can be viewed from other pedestal also. As per Section 493 of BPMC Act, Appendix-IV would form integral part of the Statute. Section 493 of the Act specifies that the provisions of Appendix IV shall apply to the constitution of Corporation and other matters specified therein. As per Appendix-IV clause 5(c) of the Bombay Provincial Municipal Corporation Act, 1949, all officers and servants in the employ of the municipality or local authority immediately before the appointed day shall be officers and servants employed by the Corporation under the BPMC Act and shall until other provision is made in accordance with provisions of said Act receive salary and allowances and be subject to the conditions of service to which they were entitled or subject on such date.
13. It is by operation of statute the employees of the Village Panchayat would become the employees of the Municipal Corporation on merger of the said Villages under the Corporation. Their service conditions are also protected. Until other provision is made under the Act, they will be entitled to same conditions of service as on the notified date i.e. the date when the Village Panchayats where they were working merged with Municipal Corporation. The Corporation is bound to follow the mandate laid down in Appendix IV, Clause 5(c) of the B.P.M.C. Act. Any deviation thereafrom is not permissible except as permitted in the said Appendix.
14.There is no dispute amongst the employees of the Village Panchayats that the petitioners are the Senior Clerks. Even Resolutions are placed on record showing that with discharging their duties with Village Panchayat. The petitioners have been promoted as Senior Clerks. The dispute about genuineness or otherwise of the said Resolution raised by the Respondent Nos.3 to 14 can not investigated in this Writ Petition. Village Panchayats have no where disputed the same nor Corporation had disputed it nor any of the employees of the said Village Panchayats has raised a dispute to the same.
15. The major thrust of the Respondents is on the ground that there is no post of Senior Clerk admissible with the Village Panchayats and for said purpose the respondents rely on Government Resolution dated 21.01.2000. The said Government Resolution sought to be relied i.e. dated 21.1.2000 is not in respect of admissible posts. The said Government Resolution is basically intended to provide financial assistance to the Grampanchayats i.e. to give grants to the extent of minimum wages to be paid to the employees of Village Panchayat.
16. It is within the province of the Village Panchayat to appoint its employees. Rule 4 of the Bombay Village Panchayats Employees (Condition of Service) Rules, 1960 is succinctly clear which lays down that a Panchayat shall subject to the provisions of the Act and these Rules have power in respect of appointment, allotment of duties, fixation of pay, grant of leave, promotion and punishment of any Panchayat servant. To promote a particular employee is within the realm of Village Panchayat. The said power provided by Rules cannot be abrogated by any executive instructions, nor it is impeached by the said Government Resolution dated 21.01.2000. The number of employees mentioned in the said Government Resolution is restricted to the extent of liability of Government providing grants to cater at least to the minimum wages. On many occasions the financial condition of the Grampanchayat is not good, so the Government bears the burden. The said Government Resolution only provides for maximum of six posts even where population of the village is more than ten thousand. The said Government Resolution does not provide for more than six posts. The population of the village of said Gram Panchayat is not brought on record. However, taking into consideration the best case for the respondents assuming the highest number of 6 post as detailed in the said G. R. and the population of these two Village Panchayats more than ten thousand then as per the said Government Resolution there are only 6 posts i.e. two Clerks, one Peon, one Pump Operator and two sweepers, whereas the employees absorbed from these two Village Panchayats are 24 in number i.e. there are nine Peons, eleven clerks and four Senior Clerks. The said Government Resolution dt. 21.1.2000 will have to be read as a whole and in the context with which it was issued. The said G. R. is not in respect of maximum sanctioned posts with Panchayat but is basically dealing with the contribution of the State Government for payment of at least minimum wages. As per the Rules it is for the Village Panchayat to determine the salary and number of employees. Anyhow the salary would not be more than the salary payable to a corresponding Zilla Parishad or a Government employee. The said restriction is in Rule 6 of the said Rules. The Respondent Nos.3 to 14 are appointed in the year 1999, whereas the petitioner Nos.2 to 4 are appointed in the year 1998 and petitioner No.1 in the year 1991. Even otherwise they are senior to Respondent Nos.3 to 14.
17. The petitioners right since their absorption are working as Senior Clerks. Even they are issued identity cards to that effect. This Court vide interim order had protected the services of the petitioners. This Court on September 12, 2012 had protected the services of the petitioners by passing a speaking order. The order of the State Government vide Resolution dated 3.7.2010, still holds the field. The State Government has also declined and rejected the proposal of the Respondent Corporation for recession of the Resolution adopted by General Body of the Municipal Corporation for absorbing the petitioners.