{"id":119618,"date":"2008-06-27T00:00:00","date_gmt":"2008-06-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/municipal-corporation-of-greater-vs-smt-malen-c-perira-ors-on-27-june-2008"},"modified":"2018-12-25T22:45:01","modified_gmt":"2018-12-25T17:15:01","slug":"municipal-corporation-of-greater-vs-smt-malen-c-perira-ors-on-27-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/municipal-corporation-of-greater-vs-smt-malen-c-perira-ors-on-27-june-2008","title":{"rendered":"Municipal Corporation Of Greater vs Smt.Malen C. Perira & Ors on 27 June, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Municipal Corporation Of Greater vs Smt.Malen C. Perira & Ors on 27 June, 2008<\/div>\n
Bench: Dr. D.Y. Chandrachud<\/div>\n
                                             1\n\n             IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                           APPELLATE SIDE \n\n\n\n\n                                                                                      \n                        WRIT PETITION NO.2373 OF 2008\n\n\n\n\n                                                              \n    Municipal Corporation of Greater \n    Mumbai & Ors.                                                    ...Petitioners.\n                             Vs.\n\n\n\n\n                                                             \n    Smt.Malen C. Perira & Ors.                              ...Respondents.\n                                    ....\n    Mr. A.Y. Sakhare, Senior Advocate with Mr. A.J. Bhor i\/b. Mr. S.H.\n    Ujjainwala  for the Petitioners.\n\n\n\n\n                                                 \n    Mr. R.D. Bhat for Respondent No.1.\n    Mr. M.S. Oberoi i\/b. Mrs. N.V. Sanglikar for Respondent No.2.\n                                 \n                                 .....\n                                 CORAM :DR.D.Y.CHANDRACHUD, J.\n<\/pre>\n
                                                June 27,  2008.\n<\/p>\n
    ORAL JUDGMENT:\n<\/p>\n
                 Rule, by consent of Counsel returnable forthwith.  Counsel<\/p>\n
    appearing on behalf of  the Respondents waive service.  By consent<\/p>\n
    of   Counsel   and   at   their   request   taken   up   for   hearing   and   final<\/p>\n
    disposal.\n<\/p>\n
                 The   Municipal   Corporation   of   Greater   Mumbai     has<\/p>\n
    instituted proceedings under Articles 226 and 227  of the Constitution<\/p>\n
    of India, in order to challenge the judgment of the Industrial Court in a<\/p>\n
    complaint   of   unfair   labour   practices   under   the   Maharashtra<\/p>\n
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\n                                           2<\/span><\/p>\n
    Recognition   of   Trade   Unions   and   Prevention   of   Unfair   Labour<\/p>\n
    Practices Act, 1971.\n<\/p>\n
    2.         The First Respondent was the complainant in a complaint<\/p>\n
    of unfair labour practices instituted before the Industrial Court.   The<\/p>\n
    relief that was sought by the First Respondent was a direction to the<\/p>\n
    Municipal   Corporation   to   promote   her   as   a   Matron   at   the   KEM<\/p>\n
    Hospital with effect from 1st  January 2004 when the post had fallen<\/p>\n
    vacant.\n<\/p>\n
    3.         In   pursuance   of     the   duty   cast   upon   the   Municipal<\/p>\n
    Corporation   under   Section     61(gg)   of   the   Mumbai   Municipal<\/p>\n
    Corporation   Act,   1888,   the   Municipal   Corporation   has   established<\/p>\n
    three major Hospitals, namely, (i) KEM Hospital, (ii) Nair Hospital and<\/p>\n
    (iii) LTMG Hospital.  There is a post of Matron on the establishment of<\/p>\n
    each of these Hospitals.  The post of Matron at the KEM Hospital fell<\/p>\n
    vacant in December 2003 while that at the LTMG Hospital fell vacant<\/p>\n
    in January 2004.  The case of the First Respondent was that she had<\/p>\n
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\n                                            3<\/span><\/p>\n
    joined service with the Municipal Corporation in 1976 as a Staff Nurse<\/p>\n
    and was appointed as a Sister Tutor in August 1983.   Prior to 1998,<\/p>\n
    the qualifications required for the post of a Matron were those that<\/p>\n
    held the field in pursuance of  a Resolution passed by the Municipal<\/p>\n
    Corporation   on   2nd  February   1984.     The   grievance   of   the   First<\/p>\n
    Respondent   is   that   these   qualifications   which   were   prescribed   in<\/p>\n
    pursuance of   the statutory powers conferred upon the appropriate<\/p>\n
    authority for framing Regulations were sought to be revised in 1998<\/p>\n
    retrospectively   without recourse to the Standing Committee or   the<\/p>\n
    Municipal   Corporation,   by   an   administrative   fiat   of   the   Municipal<\/p>\n
    Commissioner.\n<\/p>\n
    4.         In   order   to   appreciate   the   grievance   of   the   First<\/p>\n
    Respondent,   it   would   be   necessary   to   make   a   reference   to   the<\/p>\n
    qualifications as they stood for the appointment of a Matron under the<\/p>\n
    Resolution   passed   by   the   Municipal   Corporation,   C.R.   209   of   2nd<\/p>\n
    February 1984.  The qualifications were to the following effect :\n<\/p>\n
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\n                                    4<\/span><\/p>\n
     “Matron By Promotion.\n<\/p>\n
     (A) Appointment to the post shall be made either:\n<\/p>\n
     By   Promotion   of   a   suitable   candidate   in   the   Municipal
\n     Corporation of Greater Bombay possessing the qualification
\n     and experience prescribed for the appointment by selection.\n<\/p>\n
     (B) By selection from among candidates who:-\n<\/p>\n
     (I)   Unless   already   in   the   service   of   the   Municipal
\n     Corporation of Greater Bombay are not more than 35 years<\/p>\n
     of age.\n<\/p>\n
     (II) a –  are trained in  General  Nursing &  Midwifery  & are
\n     registered   as   Nurse   &   Midwife,   with   the   Maharashtra<\/p>\n
     Nursing Council or
\n     b – possess a Bachelor’    s of higher degree in Nursing of an
\n     Institution, and<\/p>\n
     (III) have held the post of an Assistant Matron or sister tutor
\n     in any of the General Hospitals to which a Nurse Training<\/p>\n
     School   is   attached   for   five   years   after   graduation   in   the
\n     case   of   candidates   possessing   degree   in   Nursing   &   for
\n     seven years after qualifying in the case of others.  Provided
\n     that   preference   will   be   given   to   candidates  possessing   a<\/p>\n
     certificate passing the Sister Tutor’         s course or a course in
\n     Nursing Administration.   Provided further that the age limit
\n     may   be   relaxed   in   favour   of   candidates   possessing
\n     exceptional qualification or experience or both.\n<\/p>\n
               Provided further that, if at any stage of selection,
\n     the   Maharashtra   Public   Service   Commission   is   of   the
\n     opinion that  sufficient number of candidates possessing the
\n     prescribed period of experience are not available to fill up<\/p>\n
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\n                                              5<\/span><\/p>\n
                the   vacancies   reserved   for   candidates   belonging   to
\n                Scheduled Caste, Scheduled Caste converts to Buddhism,<\/p>\n
                Scheduled Tribe, Denotified Tribe or, Nomadic Tribe, then
\n                the Commission may, in the matter of such selection, relax<\/p>\n
                the   requirement   in   respect   of   experience   set   out   in   sub-
\n                clause   (iii)   of   clause   (b)   of   Rule   2   &   select   suitable
\n                candidates belonging to such castes or tribes.”\n<\/p>\n
    5.          In the present case, the Court is essentially concerned with<\/p>\n
    appointments   by   promotion.     The   Regulations   prescribe   that     an<\/p>\n
    inservice candidate must possess the qualifications and experience<\/p>\n
    prescribed   for   appointment   by   selection.     For   an   appointment   by<\/p>\n
    selection, the qualifications required are Training in General Nursing<\/p>\n
    and   Midwifery   and   registration   as   a   Nurse   and   Midwife   with   the<\/p>\n
    Maharashtra   Nursing   Council   or   a   Bachelor’
\n                                                       s   or   higher   degree   in<\/p>\n
    Nursing, of an Institution.   Moreover, the candidate must have held<\/p>\n
    the  post  of  Assistant  Matron   or   Sister   Tutor  in   any  of   the   General<\/p>\n
    Hospitals to which a Nurse Training  School is attached for five years<\/p>\n
    after graduation in the case of a candidate possessing a degree in<\/p>\n
    Nursing and seven years after qualifying in the case of others.\n<\/p>\n
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\n                                                6<\/span><\/p>\n
    6.          The contention of the Municipal Corporation is that prior to<\/p>\n
    1998, the posts of Matron were filled in from amongst employees in<\/p>\n
    the cadre  of Sister Tutor and Assistant Matron  by promotion.   The<\/p>\n
    incumbent in the post of Matron   had to shoulder a dual responsibility<\/p>\n
    both   towards   the   Hospital   administration   as   well   as   in   the   Nurse<\/p>\n
    Training Schools which were attached to the Hospital.  The Municipal<\/p>\n
    Corporation   stated   that   in   1997,   a   post   of   Principal   in   the   Nurse<\/p>\n
    Training School was created in each of the three major Hospitals and<\/p>\n
    the work of the Matron was bifurcated between the Matron who looks<\/p>\n
    after Hospital administration and the Principal for the Nurse Training<\/p>\n
    School.   The post of Principal was decided to be filled in from the<\/p>\n
    Cadre of Sister Tutor.  In view thereof, according to the Corporation,<\/p>\n
    two separate promotional channels were created, one for the post of<\/p>\n
    Principal   and   the   other   for   the   post   of   Matron.     According   to   the<\/p>\n
    Corporation, revised qualifications were prescribed for promotion  to<\/p>\n
    the   post   of   Matron   and   the   requirements   for   appointment   by<\/p>\n
    promotion were to the following effect:\n<\/p>\n
                “BY PROMOTION:\n<\/p><\/blockquote>\n
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\n                                               7<\/span><\/p>\n
               (a)   B.Sc.   degree   of   the   recognized   University   in   Nursing
\n               (Basic or post Basic).\n<\/p><\/blockquote>\n
               (b)   Has   held   the   post   of   Sr.Asstt.   Matron   at   least   for   a<\/p>\n
               period of 5 years after graduation in any of the Municipal
\n               General   Hospital   to   which   Nursing   Training   School   is
\n               attached.\n<\/p><\/blockquote>\n
               (c   )   Possesses   adequate   knowledge   of   Marathi   so   as   to
\n               read, write and speak with facility.”\n<\/p><\/blockquote>\n
    The contention of the Municipal Corporation was that in view of the<\/p>\n
    revised   qualifications   which   came   into   effect   in   1998,   the   Fourth<\/p>\n
    Respondent was not entitled to be promoted to the post of Matron<\/p>\n
    since the post  of Matron could thereafter be  filled  in  only from the<\/p>\n
    cadre of   Senior  Assistant   Matron  and  not   from  the  cadre   of  Sister<\/p>\n
    Tutor.  Accordingly, the First Respondent was sought to be informed<\/p>\n
    by a letter dated 5th January 2004.\n<\/p>\n
    7.         The Industrial Court allowed the complaint of unfair labour<\/p>\n
    practices by its judgment dated 12th February 2008 and while issuing<\/p>\n
    a declaration of the commission of unfair labour practices under Items<\/p>\n
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\n                                               8<\/span><\/p>\n
    5 and 9 of Schedule IV directed the Municipal Corporation to consider<\/p>\n
    the First Respondent for promotion to the post of Matron in either of<\/p>\n
    the three major Municipal Hospitals and to grant her all consequential<\/p>\n
    monetary benefits.\n<\/p>\n
    8.          The   essential   issue   upon   which   the   decision   of   the<\/p>\n
    Industrial Court and the outcome of these proceedings would rest is<\/p>\n
    as to whether the revised qualifications that were prescribed in 1998<\/p>\n
    have the force of law and have been validly issued in supersession of<\/p>\n
    the   Regulations   which   held   the   field.     In   order   to   appreciate   the<\/p>\n
    submissions   which   have   been   urged   on   either   side,   to   which   a<\/p>\n
    reference would be made shortly hereafter, it would be necessary for<\/p>\n
    the Court to advert to the relevant provisions of the Mumbai Municipal<\/p>\n
    Corporation   Act,   1888.     Section   4   contains   a   description   of   the<\/p>\n
    Municipal   Authorities   which   are   charged   with   carrying   out   the<\/p>\n
    provisions   of   the   Act,   among   them   being   the   Corporation,   the<\/p>\n
    Standing Committee and the Municipal Commissioner.  Section 64(1)<\/p>\n
    provides   that   the   respective   functions   inter   alia   of   the   Municipal<\/p>\n
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\n                                                9<\/span><\/p>\n
    Authorities shall be such as are specifically prescribed in or under the<\/p>\n
    Act.  Under sub-section (3) of Section 64, all the  executive powers for<\/p>\n
    carrying   out     the   provisions     of   the   Act   vest   in   the   Municipal<\/p>\n
    Commissioner.  Clauses (a), (b) and (e ) of sub-section (3) of Section<\/p>\n
    64   are   relevant   for   the   purposes   of   the   present   case   and   are   as<\/p>\n
    follows :\n<\/p>\n
                “(3) Subject, whenever it is in this Act expressly so directed,
\n                to   the   approval   or   sanction   of   the   Corporation   or   the<\/p>\n
                Standing   Committee   or   the   Improvements  Committee,   or
\n                the   Education   Committee   and   subject   also   to   all   other<\/p>\n
                restrictions, limitations and conditions imposed by this Act,
\n                the entire executive power for the purpose for the purpose
\n                of   carrying   out   the   provisions   of   this   act   vests   in   the
\n                Commissioner, who shall also –\n<\/p><\/blockquote>\n
                          (a)   perform   all   the   duties   and   exercise   all   the<\/p>\n
                powers specifically imposed or are conferred upon him by
\n                this Act;\n<\/p><\/blockquote>\n
                            (b)   prescribe   the   duties   of,   and   exercise<\/p>\n
                supervision and control over, the acts and proceedings of
\n                all municipal officers and servants immediately subordinate
\n                to him and subject to regulations at the time being in force
\n                under Section   81 dispose of all questions relating to the<\/p>\n
                service   of   the   said   officers   and   servants   and   their   pay,
\n                privileges and allowances;\n<\/p><\/blockquote>\n
                                         …\n<\/p><\/blockquote>\n
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\n                                              10<\/span><\/p>\n
                           (e) be responsible for implementing the decision
\n                of   the   Corporation,   the   Standing   Committee,   the<\/p>\n
                Improvements   Committee,   the   Brihan   Mumbai   Electric
\n                Supply   and   Transport   Committee   and   the   Education<\/p>\n
                Committee.:\n<\/p><\/blockquote>\n
    Section   67   imposes   a   restriction   on   the   exercise   by   a   Municipal<\/p>\n
    Authority   of   any   power   conferred   or     the   performance   of   any   duty<\/p>\n
    involving   an   outlay   of   expenditure.         Under   Section   79,   the<\/p>\n
    Commissioner   has   to   prepare   and   bring   before   the   Standing<\/p>\n
    Committee a schedule setting forth the designations and grades of<\/p>\n
    the other officers and servants (other than those under Section  61(q))<\/p>\n
    who should, in his opinion, be maintained together with the salaries<\/p>\n
    and allowances  proposed to be paid.  Sub-section (1) of Section 80A<\/p>\n
    stipulates that   the power of appointing   Municipal officers to   posts<\/p>\n
    which   rank   equivalent   to,   or   higher   than,   the   post   of   Executive<\/p>\n
    Engineer     shall   vest   in   the   Corporation.     Under   sub-section   (2)   of<\/p>\n
    Section 80A, the power of appointing municipal officers and servants<\/p>\n
    other than those of the rank of Executive Engineer and above is to<\/p>\n
    vest in the Municipal Commissioner.  Section 80B inter alia provides<\/p>\n
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\n                                              11<\/span><\/p>\n
    that   where   the   power   of   appointment   to   a   post   vests   in   the<\/p>\n
    Corporation or a Standing Committee and which is equivalent to, or<\/p>\n
    higher than, the post of Executive Engineer, no appointment shall be<\/p>\n
    made except after consultation with the Maharashtra Public Service<\/p>\n
    Commission.     Finally, it would be necessary to refer to Section 81<\/p>\n
    under   which   a   Standing   Committee   is   empowered   to   frame<\/p>\n
    regulations.  Section 81 provides as follows:\n<\/p>\n
               “81.   (1)   The   Standing   Committee   shall   from   time   to   time
\n               frame   regulations   in   consonance   with   any   resolution   that<\/p>\n
               may be passed by the corporation-\n<\/p><\/blockquote>\n
               (a) fixing the amount and the nature of the security to be
\n               furnished by any municipal officer or servant from whom it<\/p>\n
               may be deemed expedient to require security;\n<\/p><\/blockquote>\n
               (b) regulating the grant of leave to municipal officers and
\n               servants;\n<\/p><\/blockquote>\n
               (c   )   authorizing   the   payment   of  allowances  to   the   said<\/p>\n
               officers and servants or to certain of them, whilst absent on
\n               leave;\n<\/p><\/blockquote>\n
               (d) determining the remuneration to be paid to the persons<\/p>\n
               appointed   to   act   for   any   of   the   said   officers   or   servants
\n               during their absence on leave;\n<\/p><\/blockquote>\n
               (dd)   authorizing   the   payment   of   travelling   or   conveyance
\n               allowance to the said officers and servants;\n<\/p><\/blockquote>\n
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\n                                       12<\/span><\/p>\n
         (e) regulating the period of service of all the said officers<\/p>\n
         and servants;\n<\/p><\/blockquote>\n
         (f) determining the conditions under which the said officers
\n         and   servants,   or   any   of   them,   shall   on   retirement   or
\n         discharge   receive   pensions,   gratuities   or   compassionate
\n         allowances   and   under   which   the   surviving   spouse   or<\/p>\n
         children   and   in   the   absence   of   the   surviving   spouse   or
\n         children the parents, brothers and sisters, if any, dependent
\n         on any of the said officers and servants, shall, after their
\n         death, receive compassionate allowances and the amounts<\/p>\n
         of such pensions, gratuities or compassionate allowances;\n<\/p><\/blockquote>\n
         (g)   authorizing   the   payment   of   contributions,   at   certain
\n         prescribed   rates   and   subject   to   certain   prescribed<\/p>\n
         conditions,   to   any   pension   of   provident   fund   which   may,
\n         with   the   approval   of   the   Standing   Committee,   be
\n         established   by   the   said   officers   and   servants   or   to   such
\n         provident   fund,   if   any,   as   may   be   established   by   the<\/p>\n
         corporation for the benefit of the said offices and servants;\n<\/p><\/blockquote>\n
         (h) in general, prescribing any other conditions of service of
\n         the said officers and servants.\n<\/p><\/blockquote>\n
         (2)        No regulation made by the Standing Committee<\/p>\n
         under this section shall have force or validity, unless and
\n         until it has been confirmed by the corporation, nor, if it is
\n         made   under   clause   (f),   unless   and   until   it   has   been
\n         confirmed by the State Government.”\n<\/p><\/blockquote>\n
    9.   On   2nd  February   1984,   the   Municipal   Corporation   framed<\/p>\n
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\n                                            13<\/span><\/p>\n
    Regulations prescribing the qualifications and experience required for<\/p>\n
    appointment to the post of Matron together with several other posts in<\/p>\n
    the Nursing category. These regulations are referable to the power<\/p>\n
    conferred by Section 81 of the Act.   Under clause (h) of sub-section<\/p>\n
    (1) of Section 81, the Standing Committee is empowered to prescribe<\/p>\n
    the other conditions of service of the municipal officers and servants<\/p>\n
    and   under   sub-section   (2),   the   regulations   made   by   the   Standing<\/p>\n
    Committee have to be confirmed by the Municipal Corporation.   The<\/p>\n
    Resolution of   the  Municipal  Corporation   is  CR  209 of  2nd  February<\/p>\n
    1984.\n<\/p>\n
    10.        Now, it is an admitted position that in the year 1998, what<\/p>\n
    was   sought   to   be   done   was   to   bring   about   a   change   in   the<\/p>\n
    qualifications   for   appointment   to   the   post   of   Matron.     Counsel<\/p>\n
    appearing on behalf of the Municipal Corporation has relied upon a<\/p>\n
    compilation of documents.  The compilation of documents contains a<\/p>\n
    file note of 19th May 1997 which reflects that at that point of time, the<\/p>\n
    post of Matron was to be filled in from amongst the common seniority<\/p>\n
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\n                                                14<\/span><\/p>\n
    of Sister Tutors and Senior Assistant Matrons.   It was proposed that<\/p>\n
    the   post   of   Matron   should   be   filled   in   purely  from   amongst   Senior<\/p>\n
    Assistant   Matrons   who   were   exposed   to   ward   work   and     hospital<\/p>\n
    administration.   The creation of one post of Principal in each of the<\/p>\n
    major Hospitals, namely, KEM, Nair and Sion was proposed and a<\/p>\n
    common seniority of Sister Tutors for all the three Hospitals was also<\/p>\n
    proposed.  Promotion to the post of Principal, it was proposed, would<\/p>\n
    be made from the common seniority of Sister Tutors.  A decision was<\/p>\n
    taken   to   refer   the   proposal   to   a   Committee   constituted   by   the<\/p>\n
    Municipal Commissioner for consideration.  On 9th October 1997, the<\/p>\n
    Committee   constituted   for   creation   of     temporary   posts,   accorded<\/p>\n
    sanction   to   the   creation   of   additional   temporary   posts   of   three<\/p>\n
    Principals – one each for the KEM, Sion and Nair Hospitals so as to<\/p>\n
    have two separate wings, a teaching wing and a non-teaching wing<\/p>\n
    on   the   establishment   of   each   hospital.   The   Committee   accorded<\/p>\n
    sanction to filling up these posts from the common seniority of Sister<\/p>\n
    Tutors   of   the   three   major   Hospitals   subject   to   the   fulfilling   of   the<\/p>\n
    prescribed   qualifications.         Finally   reliance   has   been   placed   on   a<\/p>\n
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\n                                              15<\/span><\/p>\n
    decision taken on a proposal dated 23rd February 1998.  The proposal<\/p>\n
    noted that  under the provisions of the Mumbai Municipal Corporation<\/p>\n
    Act, 1888, the permission of the Municipal Corporation or, as the case<\/p>\n
    may be, of the Maharashtra Public Service Commission was required<\/p>\n
    for prescribing qualifications only to the posts of Executive Engineer<\/p>\n
    and above.   Since the post of Matron was below the prescribed pay<\/p>\n
    scale for the post of Executive Engineer, it was suggested that the<\/p>\n
    power   to   prescribe   qualifications,   or   to   modify   the   existing<\/p>\n
    qualifications fell within the power of the Municipal Commissioner.  In<\/p>\n
    pursuance of   the aforesaid proposal, a decision was then taken to<\/p>\n
    revise the qualifications for the post of Matron.\n<\/p>\n
    11.         The effect of the revised qualifications is that only a Senior<\/p>\n
    Assistant   Matron   is   eligible   for   promotion   to   the   post   of   Matron.\n<\/p>\n
    Learned   Senior   Counsel   appearing   on   behalf   of   the   Municipal<\/p>\n
    Corporation   fairly   did   not   dispute   the   position   that     the   earlier<\/p>\n
    qualifications which were prescribed in the year 1984 were laid down<\/p>\n
    in pursuance of  the power conferred upon the Competent Authority to<\/p>\n
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\n                                             16<\/span><\/p>\n
    frame   regulations   under   Section     81   of   the   Mumbai   Municipal<\/p>\n
    Corporation Act, 1888.   However, it was submitted that Section 80A<\/p>\n
    and Section 80B of the Act were amended by Maharashtra Act 33 of<\/p>\n
    1989 and the consequence thereof was that  the power of appointing<\/p>\n
    Municipal Officers to posts which rank equivalent to or higher than the<\/p>\n
    Executive Engineer, vests in the Corporation.   The  power to make<\/p>\n
    appointment   both   to   temporary   and   permanent   posts   for   all   other<\/p>\n
    Municipal Officers and servants  vests in the Municipal Commissioner.\n<\/p>\n
    Hence it was urged that  after the amendment of 1989, the appointing<\/p>\n
    authority to the post of Matron, which ranks below the pay scale of<\/p>\n
    Executive   Engineer,   is   the   Municipal   Commissioner   and,   that   as   a<\/p>\n
    result,   it   is   for   the  Municipal  Commissioner   to  frame   or  modify  the<\/p>\n
    Regulations pertaining to the conditions of service and eligibility for<\/p>\n
    appointment to the post of Matron.\n<\/p>\n
    12.         The   submission   cannot   be   accepted.     The   Standing<\/p>\n
    Committee   is   vested   with   the   power   to   frame   regulations,   in<\/p>\n
    consonance with any resolution that may be passed by the Municipal<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 13:31:40 :::<\/span>
\n                                                17<\/span><\/p>\n
    Corporation for  prescribing conditions of service of Municipal Officers<\/p>\n
    and   servants.     Clauses   (a)   to   (g)   of   sub-section   (1)   of   Section   81<\/p>\n
    extend   the   power   to   frame   regulations   to   certain   specified   areas<\/p>\n
    including   the   grant   of   leave,   payment   of   allowances,   the   period   of<\/p>\n
    service, terminal benefits and the payment of contributions to Pension<\/p>\n
    or Provident Fund.   Clause (h) of sub-section (1) of Section 81 is a<\/p>\n
    residuary   provision   which   empowers   the   Standing   Committee   to<\/p>\n
    frame   regulations   in   general   prescribing   any   other   conditions   of<\/p>\n
    service of the said officers and servants.  The expression “any other<\/p>\n
    conditions   of   service”  would   refer   to   all  conditions  of   service   other<\/p>\n
    than   those   which   are   specifically   referred   to   in   clauses   (a)   to   (g).\n<\/p>\n
    Reference to the “said officers and servants” would mean officers and<\/p>\n
    servants referred to in the earlier part of sub-section (1).  In clause (a)<\/p>\n
    of sub-section (1) of Section 81, there is a reference to “any Municipal<\/p>\n
    officer   or   servant”.       The   power,   therefore,   to   frame   regulations<\/p>\n
    governing the conditions of service of Municipal Officers and servants<\/p>\n
    is   vested   in   the   Standing   Committee.     Under   sub-section   (2),   a<\/p>\n
    regulation framed by the Standing Committee has to be confirmed by<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 13:31:40 :::<\/span>
\n                                            18<\/span><\/p>\n
    the Municipal Corporation. (A Regulation under clause (f)  has to be<\/p>\n
    confirmed by the State Government before it becomes valid.  Clause<\/p>\n
    (f) deals with retiral or terminal benefits).\n<\/p>\n
    13.        The   Municipal   Commissioner   is   vested   with   executive<\/p>\n
    powers for the purpose of carrying out the provisions of the Act.  Sub-\n<\/p>\n
    section (3) of Section 64, while conferring executive powers on the<\/p>\n
    Municipal   Commissioner,   expressly   subjects   them   to   all   other<\/p>\n
    restrictions, limitations and conditions imposed by the Act.     Clause<\/p>\n
    (b)   of   sub-section   (3)   of   Section   64     empowers   the   Municipal<\/p>\n
    Commissioner   to   prescribe   the   duties   of,   and   exercise   supervision<\/p>\n
    and control over, the acts and proceedings of all municipal officers<\/p>\n
    and servants.   The Municipal Commissioner is entitled to dispose of<\/p>\n
    all questions relating to  service of the municipal officers and servants<\/p>\n
    and their pay, privileges and allowances, subject to the Regulations<\/p>\n
    for   the   time   being   in   force   under   Section     81.   The   Municipal<\/p>\n
    Commissioner,   when he exercises   executive powers is subject   to<\/p>\n
    the restrictions, limitations and conditions imposed by the Act and to<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:31:40 :::<\/span>
\n                                               19<\/span><\/p>\n
    the  provisions   contained  in   Regulations  framed   under  Section     81,<\/p>\n
    where regulations governing a particular subject matter hold the field.\n<\/p>\n
    The   Municipal   Commissioner   is   entitled   to   issue   administrative<\/p>\n
    directions   or   circulars   to   implement   the   Regulations   or   to   act   in<\/p>\n
    furtherance of the Regulations that have been framed by the Standing<\/p>\n
    Committee   and   approved   by   the   Municipal   Corporation.     Similarly,<\/p>\n
    where   no   regulations   hold   the   field,   it   is     open   to   the   Municipal<\/p>\n
    Commissioner to exercise his executive powers in areas which are<\/p>\n
    not dealt with.   This is in consonance with the basic principle of law<\/p>\n
    that   all   executive   powers   are   in   aid   of   the   implementation   of<\/p>\n
    Regulations made under a statute.     The executive power can fill in<\/p>\n
    the gap in areas which are not regulated by Regulations having the<\/p>\n
    force of statute or delegated legislation.   The provisions of clause (b)<\/p>\n
    of sub-section (3) of Section 64 statutorily recognize that the power of<\/p>\n
    the Municipal Commissioner is  subject to the regulations which hold<\/p>\n
    the field for the time being in force.   By the amendment which was<\/p>\n
    made   to   Sections   80A   and   80B,   the   power   of   appointment   of<\/p>\n
    municipal officers and servants above the post of Executive Engineer,<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 13:31:40 :::<\/span>
\n                                              20<\/span><\/p>\n
    is vested in the Municipal Corporation and below the said post with<\/p>\n
    the   Municipal   Commissioner.     The   power   to   frame   regulations   to<\/p>\n
    prescribe   the   conditions   of   service   is,   however,   expressly  a   power<\/p>\n
    which   is   conferred   upon   the   Standing   Committee.     The   power   of<\/p>\n
    appointment has to be exercised in a manner which is in consonance<\/p>\n
    with   the   Regulations,   when   Regulations   prescribing   conditions   of<\/p>\n
    eligibility,   experience   and   qualifications     have   been   made   in<\/p>\n
    accordance with the provisions of Section 81.\n<\/p>\n
    14.         This position in law is set out in two judgments of Division<\/p>\n
    Benches of this Court.  The first judgment in Municipal Corporation<\/p>\n
    of Greater Bombay vs. Miss S.R. Dethe,1<\/a> involved a challenge to the<\/p>\n
    second   proviso   to   Regulation   67   of   the   Municipal   Services<\/p>\n
    Regulations under which the Competent Authority was empowered to<\/p>\n
    retire  municipal servants upon the attainment of the age of 55 years.\n<\/p>\n
    The proviso was upheld in the judgment of the Division Bench.  The<\/p>\n
    judgment   also   dealt   with   a   challenge   to   a   circular   issued   by   the<\/p>\n
    1 1970 (73) BLR738<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 13:31:40 :::<\/span>
\n                                            21<\/span><\/p>\n
    Deputy Municipal Commissioner on 15th  June 1967   in which it was<\/p>\n
    spelt  out that      Heads  of Departments must  ensure that   “only   fit<\/p>\n
    persons” were continued beyond the age of fifty five.   The Division<\/p>\n
    Bench   held   that   the   circular   which   was   issued   by   the   Municipal<\/p>\n
    Commissioner was consistent with his power under which the entire<\/p>\n
    executive  authority  of the Corporation vested  in  him.    The Division<\/p>\n
    Bench held that   executive instructions must, however, be within the<\/p>\n
    framework of rules and regulations made by the Corporation and so<\/p>\n
    long as that was done, administrative instructions would remain valid.\n<\/p>\n
    The Division Bench  held as follows :\n<\/p>\n
               “By virtue of these provisions, the Commissioner would be
\n               entitled  to issue instructions  to  the Municipal officers and
\n               servants   and   those   instructions   would   bind   them.    Such
\n               instructions must, undoubtedly, be within the framework of<\/p>\n
               the rules and regulations made by the Corporation, but so
\n               long as the Commissioner acts within that frame-work the
\n               instructions   issued   by   him   would   have   binding   authority.”
\n               (emphasis supplied).\n<\/p><\/blockquote>\n
    The Division Bench noted that   the circular which was issued by the<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:31:40 :::<\/span>
\n                                            22<\/span><\/p>\n
    Deputy   Municipal   Commissioner   was   in   furtherance   of   Regulations<\/p>\n
    framed by the Corporation :\n<\/p>\n
               “In   our   opinion,   therefore,   the   Circular   issued   on   the
\n               authority of the Commissioner being in furtherance of the
\n               Regulation framed by the Corporation and not in derogation
\n               of it, is within the competence of the Commissioner and it<\/p>\n
               must   therefore   bind   all   subordinate   officers   and   servants
\n               who are amenable to the jurisdiction of the Commissioner.”\n<\/p><\/blockquote>\n
    In a subsequent decision in  Damodar Shantaram Nadkarni vs S.E.\n<\/p>\n
    Sukhtankar,2  a Division Bench of this Court noted that the effect of<\/p>\n
    Section   64(3)   was   that   the   entire   residuary   executive   power   for<\/p>\n
    carrying out the provisions of the Act was vested with the Municipal<\/p>\n
    Commissioner,   save   and   except   where   it   was   otherwise   provided.\n<\/p>\n
    The Bench noted that the Municipal Commissioner was clothed with a<\/p>\n
    power to prescribe duties and exercise supervision and control over<\/p>\n
    all municipal officers and servants and subject to the  Regulations for<\/p>\n
    the time being in force under Section  81 to dispose of all questions<\/p>\n
    relating to the service of the said officers and servants.  Dealing with<\/p>\n
    the reference to Section 81 in Section 64(3), the Division Bench held<\/p>\n
    2 1973 (75) BLR 538<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:31:40 :::<\/span>
\n                                           23<\/span><\/p>\n
    as follows :\n<\/p>\n
                “The very reference to the Regulations made under s.81
\n                clearly indicates that the Municipal Service Regulations<\/p>\n
                which are made in exercise of the powers conferred by s.
\n                81 have statutory force and the power of the Municipal
\n                Commissioner is controlled by the said Regulations.  The
\n                ambit   of   the   powers   conferred   by   s.64(3)   on   the<\/p>\n
                Commissioner is wide enough to clothe him with a power to
\n                issue circulars, orders and  directions including instructions
\n                qua   punishment   of   municipal   officers   and   servants   by
\n                imposing fine, suspending them or dismissing them.  Thus<\/p>\n
                reading s.64 with s. 83 the Commissioner is clothed with
\n                ample statutory powers to issue circulars, orders, directions<\/p>\n
                and   instructions   providing   the   manner   in   which   a
\n                disciplinary   enquiry   should   be   conducted   against   a<\/p>\n
                concerned   municipal   officer   or   servant   before   the
\n                punishment or penalty referred to in s.83 is imposed against
\n                him.” (emphasis supplied).\n<\/p><\/blockquote>\n
    These decisions of the Division Benches of this Court were followed<\/p>\n
    in a judgment of a Learned Single Judge in Municipal Corporation of<\/p>\n
    Greater Bombay vs. Pandurang Dinkar Katkar.3     There,<\/a> a circular<\/p>\n
    issued by the Municipal Commissioner for holding promotional tests<\/p>\n
    for effecting promotions in the Octroi Department was upheld.   The<\/p>\n
                                                             s case in
\n    Learned Single Judge adverted to the judgment in Nadkarni’<\/p>\n
    3 1998(3) Bom. C.R. 444<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:31:40 :::<\/span>
\n                                              24<\/span><\/p>\n
    which there was a reference to the legal position that  the executive<\/p>\n
    power   of   the   Municipal   Commissioner   is   subject   to     regulations<\/p>\n
    framed under Section  81.  The judgment of the Learned Single Judge<\/p>\n
    was in a case where  the action which was taken by the Municipal<\/p>\n
    Commissioner of prescribing promotional tests by a circular did not<\/p>\n
    run contrary to any regulation.\n<\/p>\n
    15.<\/p>\n
                In the present case, it is abundantly clear in the facts which<\/p>\n
    emerged   before   the   Court   that     the   decision   which   was   taken   to<\/p>\n
    prescribe fresh qualifications for appointment to the post of Matron by<\/p>\n
    promotion   in   1998   was   in   derogation   of   the   qualifications   and<\/p>\n
    experience  prescribed  under  the Regulations framed under  Section<\/p>\n
    81(1) of the Act.     The qualifications and experience provided for by<\/p>\n
    the   Regulations   cannot   be   modified   or   superseded   by   an<\/p>\n
    administrative act of the Municipal Commissioner, but would have to<\/p>\n
    be   replaced   by   the   exercise   of   the   power   which   is   conferred   for<\/p>\n
    framing regulations under Section  81.  Admittedly, that  has not been<\/p>\n
    done.     The   Municipal   Corporation   may     have   cogent   reasons   for<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 13:31:40 :::<\/span>
\n                                                   25<\/span><\/p>\n
    determining that there is a   need to revise the qualifications in the<\/p>\n
    interest   of   the   service   or   the   public   interest.     But   a     revision   of   the<\/p>\n
    qualifications     prescribed   by   Regulations   has   to   be   by   framing   fresh<\/p>\n
    regulations or amending the existing Regulations in accordance with law.\n<\/p>\n
    That not having been done, the Industrial Court  was justified in coming to<\/p>\n
    the conclusion that   the First Respondent should not  be disqualified for<\/p>\n
    being considered for the promotional post of Matron in accordance with the<\/p>\n
    regulations   which   hold   the   field   in   pursuance   of   C.R.   209,   dated   2nd<\/p>\n
    February 1984.\n<\/p>\n
    15A.         The   order   passed   by   the   Industrial   Court   shall   not   however,<\/p>\n
    prevent the Municipal Corporation from prescribing fresh qualifications<\/p>\n
    in   accordance   with   law.     This    clarification is <\/p>\n
    necessary because it is for the Corporation to determine whether the<\/p>\n
    interests of the service and the public interest require the modification<\/p>\n
    or supersession of regulations.  The Municipal Corporation through its<\/p>\n
    public hospitals performs an important statutory function of protecting<\/p>\n
    public   health.     The   exigencies   of   administration   may   require   a<\/p>\n
    modification of the conditions of eligibility to ensure that employees<\/p>\n
    who man posts in public hospitals are qualified to meet the complex<\/p>\n
                                                                      ::: Downloaded on – 09\/06\/2013 13:31:40 :::<\/span>
\n                                                26<\/span><\/p>\n
    problems that    confront the administration.   Judicial review  in such<\/p>\n
    matters must recognize that the statutory authorities competent to do<\/p>\n
    so can frame and modify the existing regulations in public interest.\n<\/p>\n
    The   Industrial   Court   has   directed   the   Municipal   Corporation   to<\/p>\n
    consider   the   case   of   the   First   Respondent   for   promotion.   The<\/p>\n
    directions for the payment of consequential benefits shall have to be<\/p>\n
    modified   to   mean   that   such   benefits  would   be   allowed   to   the   First<\/p>\n
    Respondent subject to the First Respondent being found to be fit and<\/p>\n
    eligible   to   the   post   and   being   promoted   to   the   post   subject   to   her<\/p>\n
    fulfilling the required qualifications under the regulations. Neither the<\/p>\n
    judgment of the Industrial Court, nor the judgment of this Court shall<\/p>\n
    preclude   the   Municipal   Corporation   from   revising   the   prescribed<\/p>\n
    qualifications in accordance with law.\n<\/p>\n
    16.         The   petition   shall   accordingly   stand   disposed   of   and   the<\/p>\n
    order   of   the   Industrial   Court   shall   stand   modified   to   the   extent<\/p>\n
    indicated above.  There shall be no order as to costs.\n<\/p>\n
                                          ……\n<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 13:31:40 :::<\/span>
\n            27<\/span><\/p>\n
                ::: Downloaded on – 09\/06\/2013 13:31:40 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Municipal Corporation Of Greater vs Smt.Malen C. Perira & Ors on 27 June, 2008 Bench: Dr. D.Y. Chandrachud 1 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-119618","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMunicipal Corporation Of Greater vs Smt.Malen C. Perira & Ors on 27 June, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/municipal-corporation-of-greater-vs-smt-malen-c-perira-ors-on-27-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Municipal Corporation Of Greater vs Smt.Malen C. 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