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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO.2373 OF 2008
Municipal Corporation of Greater
Mumbai & Ors. ...Petitioners.
Vs.
Smt.Malen C. Perira & Ors. ...Respondents.
....
Mr. A.Y. Sakhare, Senior Advocate with Mr. A.J. Bhor i/b. Mr. S.H.
Ujjainwala for the Petitioners.
Mr. R.D. Bhat for Respondent No.1.
Mr. M.S. Oberoi i/b. Mrs. N.V. Sanglikar for Respondent No.2.
.....
CORAM :DR.D.Y.CHANDRACHUD, J.
June 27, 2008.
ORAL JUDGMENT:
Rule, by consent of Counsel returnable forthwith. Counsel
appearing on behalf of the Respondents waive service. By consent
of Counsel and at their request taken up for hearing and final
disposal.
The Municipal Corporation of Greater Mumbai has
instituted proceedings under Articles 226 and 227 of the Constitution
of India, in order to challenge the judgment of the Industrial Court in a
complaint of unfair labour practices under the Maharashtra
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Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971.
2. The First Respondent was the complainant in a complaint
of unfair labour practices instituted before the Industrial Court. The
relief that was sought by the First Respondent was a direction to the
Municipal Corporation to promote her as a Matron at the KEM
Hospital with effect from 1st January 2004 when the post had fallen
vacant.
3. In pursuance of the duty cast upon the Municipal
Corporation under Section 61(gg) of the Mumbai Municipal
Corporation Act, 1888, the Municipal Corporation has established
three major Hospitals, namely, (i) KEM Hospital, (ii) Nair Hospital and
(iii) LTMG Hospital. There is a post of Matron on the establishment of
each of these Hospitals. The post of Matron at the KEM Hospital fell
vacant in December 2003 while that at the LTMG Hospital fell vacant
in January 2004. The case of the First Respondent was that she had
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joined service with the Municipal Corporation in 1976 as a Staff Nurse
and was appointed as a Sister Tutor in August 1983. Prior to 1998,
the qualifications required for the post of a Matron were those that
held the field in pursuance of a Resolution passed by the Municipal
Corporation on 2nd February 1984. The grievance of the First
Respondent is that these qualifications which were prescribed in
pursuance of the statutory powers conferred upon the appropriate
authority for framing Regulations were sought to be revised in 1998
retrospectively without recourse to the Standing Committee or the
Municipal Corporation, by an administrative fiat of the Municipal
Commissioner.
4. In order to appreciate the grievance of the First
Respondent, it would be necessary to make a reference to the
qualifications as they stood for the appointment of a Matron under the
Resolution passed by the Municipal Corporation, C.R. 209 of 2nd
February 1984. The qualifications were to the following effect :
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“Matron By Promotion.
(A) Appointment to the post shall be made either:
By Promotion of a suitable candidate in the Municipal
Corporation of Greater Bombay possessing the qualification
and experience prescribed for the appointment by selection.
(B) By selection from among candidates who:-
(I) Unless already in the service of the Municipal
Corporation of Greater Bombay are not more than 35 years
of age.
(II) a – are trained in General Nursing & Midwifery & are
registered as Nurse & Midwife, with the Maharashtra
Nursing Council or
b – possess a Bachelor’ s of higher degree in Nursing of an
Institution, and
(III) have held the post of an Assistant Matron or sister tutor
in any of the General Hospitals to which a Nurse Training
School is attached for five years after graduation in the
case of candidates possessing degree in Nursing & for
seven years after qualifying in the case of others. Provided
that preference will be given to candidates possessing a
certificate passing the Sister Tutor’ s course or a course in
Nursing Administration. Provided further that the age limit
may be relaxed in favour of candidates possessing
exceptional qualification or experience or both.
Provided further that, if at any stage of selection,
the Maharashtra Public Service Commission is of the
opinion that sufficient number of candidates possessing the
prescribed period of experience are not available to fill up
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the vacancies reserved for candidates belonging to
Scheduled Caste, Scheduled Caste converts to Buddhism,
Scheduled Tribe, Denotified Tribe or, Nomadic Tribe, then
the Commission may, in the matter of such selection, relax
the requirement in respect of experience set out in sub-
clause (iii) of clause (b) of Rule 2 & select suitable
candidates belonging to such castes or tribes.”
5. In the present case, the Court is essentially concerned with
appointments by promotion. The Regulations prescribe that an
inservice candidate must possess the qualifications and experience
prescribed for appointment by selection. For an appointment by
selection, the qualifications required are Training in General Nursing
and Midwifery and registration as a Nurse and Midwife with the
Maharashtra Nursing Council or a Bachelor’
s or higher degree in
Nursing, of an Institution. Moreover, the candidate must have held
the post of Assistant Matron or Sister Tutor in any of the General
Hospitals to which a Nurse Training School is attached for five years
after graduation in the case of a candidate possessing a degree in
Nursing and seven years after qualifying in the case of others.
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6. The contention of the Municipal Corporation is that prior to
1998, the posts of Matron were filled in from amongst employees in
the cadre of Sister Tutor and Assistant Matron by promotion. The
incumbent in the post of Matron had to shoulder a dual responsibility
both towards the Hospital administration as well as in the Nurse
Training Schools which were attached to the Hospital. The Municipal
Corporation stated that in 1997, a post of Principal in the Nurse
Training School was created in each of the three major Hospitals and
the work of the Matron was bifurcated between the Matron who looks
after Hospital administration and the Principal for the Nurse Training
School. The post of Principal was decided to be filled in from the
Cadre of Sister Tutor. In view thereof, according to the Corporation,
two separate promotional channels were created, one for the post of
Principal and the other for the post of Matron. According to the
Corporation, revised qualifications were prescribed for promotion to
the post of Matron and the requirements for appointment by
promotion were to the following effect:
“BY PROMOTION:
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(a) B.Sc. degree of the recognized University in Nursing
(Basic or post Basic).
(b) Has held the post of Sr.Asstt. Matron at least for a
period of 5 years after graduation in any of the Municipal
General Hospital to which Nursing Training School is
attached.
(c ) Possesses adequate knowledge of Marathi so as to
read, write and speak with facility.”
The contention of the Municipal Corporation was that in view of the
revised qualifications which came into effect in 1998, the Fourth
Respondent was not entitled to be promoted to the post of Matron
since the post of Matron could thereafter be filled in only from the
cadre of Senior Assistant Matron and not from the cadre of Sister
Tutor. Accordingly, the First Respondent was sought to be informed
by a letter dated 5th January 2004.
7. The Industrial Court allowed the complaint of unfair labour
practices by its judgment dated 12th February 2008 and while issuing
a declaration of the commission of unfair labour practices under Items
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5 and 9 of Schedule IV directed the Municipal Corporation to consider
the First Respondent for promotion to the post of Matron in either of
the three major Municipal Hospitals and to grant her all consequential
monetary benefits.
8. The essential issue upon which the decision of the
Industrial Court and the outcome of these proceedings would rest is
as to whether the revised qualifications that were prescribed in 1998
have the force of law and have been validly issued in supersession of
the Regulations which held the field. In order to appreciate the
submissions which have been urged on either side, to which a
reference would be made shortly hereafter, it would be necessary for
the Court to advert to the relevant provisions of the Mumbai Municipal
Corporation Act, 1888. Section 4 contains a description of the
Municipal Authorities which are charged with carrying out the
provisions of the Act, among them being the Corporation, the
Standing Committee and the Municipal Commissioner. Section 64(1)
provides that the respective functions inter alia of the Municipal
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Authorities shall be such as are specifically prescribed in or under the
Act. Under sub-section (3) of Section 64, all the executive powers for
carrying out the provisions of the Act vest in the Municipal
Commissioner. Clauses (a), (b) and (e ) of sub-section (3) of Section
64 are relevant for the purposes of the present case and are as
follows :
“(3) Subject, whenever it is in this Act expressly so directed,
to the approval or sanction of the Corporation or theStanding Committee or the Improvements Committee, or
the Education Committee and subject also to all otherrestrictions, limitations and conditions imposed by this Act,
the entire executive power for the purpose for the purpose
of carrying out the provisions of this act vests in the
Commissioner, who shall also –
(a) perform all the duties and exercise all the
powers specifically imposed or are conferred upon him by
this Act;
(b) prescribe the duties of, and exercise
supervision and control over, the acts and proceedings of
all municipal officers and servants immediately subordinate
to him and subject to regulations at the time being in force
under Section 81 dispose of all questions relating to theservice of the said officers and servants and their pay,
privileges and allowances;
…
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(e) be responsible for implementing the decision
of the Corporation, the Standing Committee, theImprovements Committee, the Brihan Mumbai Electric
Supply and Transport Committee and the EducationCommittee.:
Section 67 imposes a restriction on the exercise by a Municipal
Authority of any power conferred or the performance of any duty
involving an outlay of expenditure. Under Section 79, the
Commissioner has to prepare and bring before the Standing
Committee a schedule setting forth the designations and grades of
the other officers and servants (other than those under Section 61(q))
who should, in his opinion, be maintained together with the salaries
and allowances proposed to be paid. Sub-section (1) of Section 80A
stipulates that the power of appointing Municipal officers to posts
which rank equivalent to, or higher than, the post of Executive
Engineer shall vest in the Corporation. Under sub-section (2) of
Section 80A, the power of appointing municipal officers and servants
other than those of the rank of Executive Engineer and above is to
vest in the Municipal Commissioner. Section 80B inter alia provides
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that where the power of appointment to a post vests in the
Corporation or a Standing Committee and which is equivalent to, or
higher than, the post of Executive Engineer, no appointment shall be
made except after consultation with the Maharashtra Public Service
Commission. Finally, it would be necessary to refer to Section 81
under which a Standing Committee is empowered to frame
regulations. Section 81 provides as follows:
“81. (1) The Standing Committee shall from time to time
frame regulations in consonance with any resolution thatmay be passed by the corporation-
(a) fixing the amount and the nature of the security to be
furnished by any municipal officer or servant from whom itmay be deemed expedient to require security;
(b) regulating the grant of leave to municipal officers and
servants;
(c ) authorizing the payment of allowances to the said
officers and servants or to certain of them, whilst absent on
leave;
(d) determining the remuneration to be paid to the persons
appointed to act for any of the said officers or servants
during their absence on leave;
(dd) authorizing the payment of travelling or conveyance
allowance to the said officers and servants;
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(e) regulating the period of service of all the said officers
and servants;
(f) determining the conditions under which the said officers
and servants, or any of them, shall on retirement or
discharge receive pensions, gratuities or compassionate
allowances and under which the surviving spouse orchildren and in the absence of the surviving spouse or
children the parents, brothers and sisters, if any, dependent
on any of the said officers and servants, shall, after their
death, receive compassionate allowances and the amountsof such pensions, gratuities or compassionate allowances;
(g) authorizing the payment of contributions, at certain
prescribed rates and subject to certain prescribedconditions, to any pension of provident fund which may,
with the approval of the Standing Committee, be
established by the said officers and servants or to such
provident fund, if any, as may be established by thecorporation for the benefit of the said offices and servants;
(h) in general, prescribing any other conditions of service of
the said officers and servants.
(2) No regulation made by the Standing Committee
under this section shall have force or validity, unless and
until it has been confirmed by the corporation, nor, if it is
made under clause (f), unless and until it has been
confirmed by the State Government.”
9. On 2nd February 1984, the Municipal Corporation framed
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Regulations prescribing the qualifications and experience required for
appointment to the post of Matron together with several other posts in
the Nursing category. These regulations are referable to the power
conferred by Section 81 of the Act. Under clause (h) of sub-section
(1) of Section 81, the Standing Committee is empowered to prescribe
the other conditions of service of the municipal officers and servants
and under sub-section (2), the regulations made by the Standing
Committee have to be confirmed by the Municipal Corporation. The
Resolution of the Municipal Corporation is CR 209 of 2nd February
1984.
10. Now, it is an admitted position that in the year 1998, what
was sought to be done was to bring about a change in the
qualifications for appointment to the post of Matron. Counsel
appearing on behalf of the Municipal Corporation has relied upon a
compilation of documents. The compilation of documents contains a
file note of 19th May 1997 which reflects that at that point of time, the
post of Matron was to be filled in from amongst the common seniority
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of Sister Tutors and Senior Assistant Matrons. It was proposed that
the post of Matron should be filled in purely from amongst Senior
Assistant Matrons who were exposed to ward work and hospital
administration. The creation of one post of Principal in each of the
major Hospitals, namely, KEM, Nair and Sion was proposed and a
common seniority of Sister Tutors for all the three Hospitals was also
proposed. Promotion to the post of Principal, it was proposed, would
be made from the common seniority of Sister Tutors. A decision was
taken to refer the proposal to a Committee constituted by the
Municipal Commissioner for consideration. On 9th October 1997, the
Committee constituted for creation of temporary posts, accorded
sanction to the creation of additional temporary posts of three
Principals – one each for the KEM, Sion and Nair Hospitals so as to
have two separate wings, a teaching wing and a non-teaching wing
on the establishment of each hospital. The Committee accorded
sanction to filling up these posts from the common seniority of Sister
Tutors of the three major Hospitals subject to the fulfilling of the
prescribed qualifications. Finally reliance has been placed on a
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decision taken on a proposal dated 23rd February 1998. The proposal
noted that under the provisions of the Mumbai Municipal Corporation
Act, 1888, the permission of the Municipal Corporation or, as the case
may be, of the Maharashtra Public Service Commission was required
for prescribing qualifications only to the posts of Executive Engineer
and above. Since the post of Matron was below the prescribed pay
scale for the post of Executive Engineer, it was suggested that the
power to prescribe qualifications, or to modify the existing
qualifications fell within the power of the Municipal Commissioner. In
pursuance of the aforesaid proposal, a decision was then taken to
revise the qualifications for the post of Matron.
11. The effect of the revised qualifications is that only a Senior
Assistant Matron is eligible for promotion to the post of Matron.
Learned Senior Counsel appearing on behalf of the Municipal
Corporation fairly did not dispute the position that the earlier
qualifications which were prescribed in the year 1984 were laid down
in pursuance of the power conferred upon the Competent Authority to
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frame regulations under Section 81 of the Mumbai Municipal
Corporation Act, 1888. However, it was submitted that Section 80A
and Section 80B of the Act were amended by Maharashtra Act 33 of
1989 and the consequence thereof was that the power of appointing
Municipal Officers to posts which rank equivalent to or higher than the
Executive Engineer, vests in the Corporation. The power to make
appointment both to temporary and permanent posts for all other
Municipal Officers and servants vests in the Municipal Commissioner.
Hence it was urged that after the amendment of 1989, the appointing
authority to the post of Matron, which ranks below the pay scale of
Executive Engineer, is the Municipal Commissioner and, that as a
result, it is for the Municipal Commissioner to frame or modify the
Regulations pertaining to the conditions of service and eligibility for
appointment to the post of Matron.
12. The submission cannot be accepted. The Standing
Committee is vested with the power to frame regulations, in
consonance with any resolution that may be passed by the Municipal
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Corporation for prescribing conditions of service of Municipal Officers
and servants. Clauses (a) to (g) of sub-section (1) of Section 81
extend the power to frame regulations to certain specified areas
including the grant of leave, payment of allowances, the period of
service, terminal benefits and the payment of contributions to Pension
or Provident Fund. Clause (h) of sub-section (1) of Section 81 is a
residuary provision which empowers the Standing Committee to
frame regulations in general prescribing any other conditions of
service of the said officers and servants. The expression “any other
conditions of service” would refer to all conditions of service other
than those which are specifically referred to in clauses (a) to (g).
Reference to the “said officers and servants” would mean officers and
servants referred to in the earlier part of sub-section (1). In clause (a)
of sub-section (1) of Section 81, there is a reference to “any Municipal
officer or servant”. The power, therefore, to frame regulations
governing the conditions of service of Municipal Officers and servants
is vested in the Standing Committee. Under sub-section (2), a
regulation framed by the Standing Committee has to be confirmed by
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the Municipal Corporation. (A Regulation under clause (f) has to be
confirmed by the State Government before it becomes valid. Clause
(f) deals with retiral or terminal benefits).
13. The Municipal Commissioner is vested with executive
powers for the purpose of carrying out the provisions of the Act. Sub-
section (3) of Section 64, while conferring executive powers on the
Municipal Commissioner, expressly subjects them to all other
restrictions, limitations and conditions imposed by the Act. Clause
(b) of sub-section (3) of Section 64 empowers the Municipal
Commissioner to prescribe the duties of, and exercise supervision
and control over, the acts and proceedings of all municipal officers
and servants. The Municipal Commissioner is entitled to dispose of
all questions relating to service of the municipal officers and servants
and their pay, privileges and allowances, subject to the Regulations
for the time being in force under Section 81. The Municipal
Commissioner, when he exercises executive powers is subject to
the restrictions, limitations and conditions imposed by the Act and to
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the provisions contained in Regulations framed under Section 81,
where regulations governing a particular subject matter hold the field.
The Municipal Commissioner is entitled to issue administrative
directions or circulars to implement the Regulations or to act in
furtherance of the Regulations that have been framed by the Standing
Committee and approved by the Municipal Corporation. Similarly,
where no regulations hold the field, it is open to the Municipal
Commissioner to exercise his executive powers in areas which are
not dealt with. This is in consonance with the basic principle of law
that all executive powers are in aid of the implementation of
Regulations made under a statute. The executive power can fill in
the gap in areas which are not regulated by Regulations having the
force of statute or delegated legislation. The provisions of clause (b)
of sub-section (3) of Section 64 statutorily recognize that the power of
the Municipal Commissioner is subject to the regulations which hold
the field for the time being in force. By the amendment which was
made to Sections 80A and 80B, the power of appointment of
municipal officers and servants above the post of Executive Engineer,
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is vested in the Municipal Corporation and below the said post with
the Municipal Commissioner. The power to frame regulations to
prescribe the conditions of service is, however, expressly a power
which is conferred upon the Standing Committee. The power of
appointment has to be exercised in a manner which is in consonance
with the Regulations, when Regulations prescribing conditions of
eligibility, experience and qualifications have been made in
accordance with the provisions of Section 81.
14. This position in law is set out in two judgments of Division
Benches of this Court. The first judgment in Municipal Corporation
of Greater Bombay vs. Miss S.R. Dethe,1 involved a challenge to the
second proviso to Regulation 67 of the Municipal Services
Regulations under which the Competent Authority was empowered to
retire municipal servants upon the attainment of the age of 55 years.
The proviso was upheld in the judgment of the Division Bench. The
judgment also dealt with a challenge to a circular issued by the
1 1970 (73) BLR738
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Deputy Municipal Commissioner on 15th June 1967 in which it was
spelt out that Heads of Departments must ensure that “only fit
persons” were continued beyond the age of fifty five. The Division
Bench held that the circular which was issued by the Municipal
Commissioner was consistent with his power under which the entire
executive authority of the Corporation vested in him. The Division
Bench held that executive instructions must, however, be within the
framework of rules and regulations made by the Corporation and so
long as that was done, administrative instructions would remain valid.
The Division Bench held as follows :
“By virtue of these provisions, the Commissioner would be
entitled to issue instructions to the Municipal officers and
servants and those instructions would bind them. Such
instructions must, undoubtedly, be within the framework ofthe rules and regulations made by the Corporation, but so
long as the Commissioner acts within that frame-work the
instructions issued by him would have binding authority.”
(emphasis supplied).
The Division Bench noted that the circular which was issued by the
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Deputy Municipal Commissioner was in furtherance of Regulations
framed by the Corporation :
“In our opinion, therefore, the Circular issued on the
authority of the Commissioner being in furtherance of the
Regulation framed by the Corporation and not in derogation
of it, is within the competence of the Commissioner and itmust therefore bind all subordinate officers and servants
who are amenable to the jurisdiction of the Commissioner.”
In a subsequent decision in Damodar Shantaram Nadkarni vs S.E.
Sukhtankar,2 a Division Bench of this Court noted that the effect of
Section 64(3) was that the entire residuary executive power for
carrying out the provisions of the Act was vested with the Municipal
Commissioner, save and except where it was otherwise provided.
The Bench noted that the Municipal Commissioner was clothed with a
power to prescribe duties and exercise supervision and control over
all municipal officers and servants and subject to the Regulations for
the time being in force under Section 81 to dispose of all questions
relating to the service of the said officers and servants. Dealing with
the reference to Section 81 in Section 64(3), the Division Bench held
2 1973 (75) BLR 538
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as follows :
“The very reference to the Regulations made under s.81
clearly indicates that the Municipal Service Regulationswhich are made in exercise of the powers conferred by s.
81 have statutory force and the power of the Municipal
Commissioner is controlled by the said Regulations. The
ambit of the powers conferred by s.64(3) on theCommissioner is wide enough to clothe him with a power to
issue circulars, orders and directions including instructions
qua punishment of municipal officers and servants by
imposing fine, suspending them or dismissing them. Thusreading s.64 with s. 83 the Commissioner is clothed with
ample statutory powers to issue circulars, orders, directionsand instructions providing the manner in which a
disciplinary enquiry should be conducted against aconcerned municipal officer or servant before the
punishment or penalty referred to in s.83 is imposed against
him.” (emphasis supplied).
These decisions of the Division Benches of this Court were followed
in a judgment of a Learned Single Judge in Municipal Corporation of
Greater Bombay vs. Pandurang Dinkar Katkar.3 There, a circular
issued by the Municipal Commissioner for holding promotional tests
for effecting promotions in the Octroi Department was upheld. The
s case in
Learned Single Judge adverted to the judgment in Nadkarni’
3 1998(3) Bom. C.R. 444
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which there was a reference to the legal position that the executive
power of the Municipal Commissioner is subject to regulations
framed under Section 81. The judgment of the Learned Single Judge
was in a case where the action which was taken by the Municipal
Commissioner of prescribing promotional tests by a circular did not
run contrary to any regulation.
15.
In the present case, it is abundantly clear in the facts which
emerged before the Court that the decision which was taken to
prescribe fresh qualifications for appointment to the post of Matron by
promotion in 1998 was in derogation of the qualifications and
experience prescribed under the Regulations framed under Section
81(1) of the Act. The qualifications and experience provided for by
the Regulations cannot be modified or superseded by an
administrative act of the Municipal Commissioner, but would have to
be replaced by the exercise of the power which is conferred for
framing regulations under Section 81. Admittedly, that has not been
done. The Municipal Corporation may have cogent reasons for
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determining that there is a need to revise the qualifications in the
interest of the service or the public interest. But a revision of the
qualifications prescribed by Regulations has to be by framing fresh
regulations or amending the existing Regulations in accordance with law.
That not having been done, the Industrial Court was justified in coming to
the conclusion that the First Respondent should not be disqualified for
being considered for the promotional post of Matron in accordance with the
regulations which hold the field in pursuance of C.R. 209, dated 2nd
February 1984.
15A. The order passed by the Industrial Court shall not however,
prevent the Municipal Corporation from prescribing fresh qualifications
in accordance with law. This clarification is
necessary because it is for the Corporation to determine whether the
interests of the service and the public interest require the modification
or supersession of regulations. The Municipal Corporation through its
public hospitals performs an important statutory function of protecting
public health. The exigencies of administration may require a
modification of the conditions of eligibility to ensure that employees
who man posts in public hospitals are qualified to meet the complex
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problems that confront the administration. Judicial review in such
matters must recognize that the statutory authorities competent to do
so can frame and modify the existing regulations in public interest.
The Industrial Court has directed the Municipal Corporation to
consider the case of the First Respondent for promotion. The
directions for the payment of consequential benefits shall have to be
modified to mean that such benefits would be allowed to the First
Respondent subject to the First Respondent being found to be fit and
eligible to the post and being promoted to the post subject to her
fulfilling the required qualifications under the regulations. Neither the
judgment of the Industrial Court, nor the judgment of this Court shall
preclude the Municipal Corporation from revising the prescribed
qualifications in accordance with law.
16. The petition shall accordingly stand disposed of and the
order of the Industrial Court shall stand modified to the extent
indicated above. There shall be no order as to costs.
……
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