Bombay High Court
Sanghmitra R. Sandansing vs Municipal Corporation Of Greater ... on 4 February, 2022
Author: Madhav J. Jamdar
Bench: Prasanna B. Varale, Madhav J. Jamdar
WPL-23789-2021-.DOC
Sonali/Dusane
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 23789 OF 2021
Sanghmitra R. Sandansing ... Petitioner
Adult, Age 55 years, Occ. Service
R/at: 502, Shivshakti Co-operative
Housing Society, Opp. Bhabai Cemetery
Borivali (W), Mumbai 400092
versus
1. Municipal Corporation of Greater
Mumbai
1, Mahapalika Marg,
Mumbai-400001.
SONALI
MILIND
PATIL 2. Municipal Commissioner
Municipal Corporation of Greater
Digitally signed by Mumbai
SONALI MILIND PATIL
Date: 2022.02.04 1, Mahapalika Marg,
18:50:45 +0530
Mumbai-400001.
3. Shri. Sunil Kacheshwar Sonawane ... Respondents
Working as the Deputy Law Officer
(At present working as the i/c Law
Officer) Legal Department, Municipal
Corporation of Greater Mumbai,
Mumbai-400001.
WITH
WRIT PETITION (L) NO. 23165 OF 2021
Sanghmitra R. Sandansing ... Petitioner
Adult, Age 55 years, Occ. Service
R/at: 502, Shivshakti Co-operative
Housing Society, Opp. Bhabai Cemetery
Borivali (W), Mumbai 400092
versus
Page 1 of 68
4th February, 2022
WPL-23789-2021-.DOC
Municipal Corporation of Greater ... Respondents
Mumbai
1, Mahapalika Marg,
Mumbai-400001.
A PPEARANCES
For the Petitioner Mr. Anil Anturkar, Senior Advocate
a/w. Mr. Shubham Misar for the
Petitioner in Writ Petition (L) No.
23789 of 2021.
Dr. Uday Warunjikar for the
Petitioner in Writ Petition (L) No.
23165 of 2021.
For Respondents Mr. A. V. Bukhari, Senior Advocate
with Mr. B. V. Bukhari & Ms. Fauzia
Bukhari i/b. Mr. R. Y. Sirsikar for the
Respondent Nos. 1 and 2 in Writ
Petition (L) No.23789 of 2021.
Mr. A. V. Bukhari, Senior Advocate
with Mr. B. V. Bukhari & Ms. Fauzia
Bukhari i/b. Mr. R. Y. Sirsikar for the
Respondent-MCGM in Writ Petition
(L) No.23165 of 2021.
Mr. R. A. Thorat, Senior Advocate
with Mr. Pradeep Thorat i/b. Ms.
Aditi Naikare for the Respondent
No.3 in Writ Petition (L) No.23789
of 2021.
CORAM : Prasanna B. Varale &
Madhav J. Jamdar, JJ
RESERVED ON : 26th October, 2021
PRONOUNCED ON : 4th February, 2022
Page 2 of 68
4th February, 2022
WPL-23789-2021-.DOC
JUDGMENT:(Per Madhav J. Jamdar, J):-
1. Rule.
2. By consent, Rule is made returnable forthwith and the matter is taken up for hearing and final disposal.
3. The Petitioner is presently working in the post of Joint Law Officer in Municipal Corporation of Greater Mumbai ("MCGM"). The Petitioner in Writ Petition (L) No. 23165 of 2021 has challenged seven Show Cause Notices (Exhibit-D) issued in the month of March-2018 and Memorandum of Charges(Exhibit-I). In the said Writ Petition further relief sought seeking direction to the Respondent No.1 to the effect that the candidature of the Petitioner to the post of Law Officer be considered without getting influenced by said seven Show Cause Notices or Memorandum of Charges. In Writ Petition (L) No. 23789 of 2021, the Petitioner challenged communication dated 11 th October, 2021 issued by Deputy Commissioner-Enquiry Officer of MCGM (Exhibit-N) as well as said Memorandum of Charges (Exhibit-K). The Petitioner also challenged order dated 7th October, 2021 (Exhibit-A) by which Respondent No.3 has been appointed as Incharge Law Officer.
4. To appreciate the controversy involved in the Writ Petition some aspects as emerging from the Writ Petition and the Affidavit-in-Reply of Respondent Nos. 1 and 2 are Page 3 of 68 4th February, 2022 WPL-23789-2021-.DOC set out hereinbelow:-
i. The hierarchy in the Legal Department of the Respondent No.1-MCGM is as follows:-
(i) Law Officer (Single Highest Post)
(ii) Joint Law Officer (3 Posts)
(iii) Deputy Law Officer (13 Posts)
(iv) Asst. Law Officer (89 Posts)
(v) Junior Law Officer (4 Posts)
It has been clarified in the Affidavit-in-Reply that earlier entry post in the Legal Department was the Junior Law Officer and now only one person is working as Junior Law Officer and after retirement of said working employee, the said post would be automatically abolished. It is clarified that the Assistant Law Officer and Assistant Law Officer-
Grade II are now the entry posts in the Legal Department. The said post of Assistant Law Officer is filled up on the basis of direct recruitment. From the post of "Deputy Law Officer" upto to "Joint Law Officer" posts are filled up on the basis of promotion. The post of "Law Officer" is to be filled in on the basis of promotion as well as by selection as per the eligibility criteria as mentioned in the rules of Respondent-Corporation.
Page 4 of 684th February, 2022 WPL-23789-2021-.DOC ii. The Petitioner was initially appointed as Assistant Law Officer in the Legal Department of MCGM on 25th February, 1995. The Petitioner was promoted as Deputy Law Officer with effect from 1st June, 2012 and thereafter as Joint Law Officer with effect from 18th May, 2018.
iii. It is the contention of the Petitioner that the Petitioner was appointed as Joint Law Officer w. e.f. 18th May, 2018. In this behalf, it is the contention of the Respondent No.1 in the Affidavit-in-Reply dated 25th October, 2021 filed in Writ Petition (L) No. 23789 of 2021 that Petitioner was appointed as Assistant Law Officer on 25th February, 1995 and thereafter promoted as Deputy Law Officer w.e.f. 1 st June, 2012 as per the office order dated 6 th September, 2014. Thereafter, as per office order dated 31st May, 2018, Petitioner was made Incharge Joint Law Officer. As per the office order dated 28 th December, 2020, Petitioner was appointed on temporary basis on the post of Joint Law Officer. According to the Affidavit-in-Reply, retrospective date 1st June, 2018 of appointment of Petitioner in the post of Joint Law Officer as per the MCGM's resolution is not yet confirmed.
iv. It is the contention of the Petitioner that the appointment to the post of Law Officer is to be made Page 5 of 68 4th February, 2022 WPL-23789-2021-.DOC on the basis of amended provisions which are annexed at Exhibit-E to the petition. As per the amended provision the post of Law Officer is to be filled-in from the cadre of Joint Law Officer and who has completed minimum 3 years on the said post. As per earlier provisions before amendment, it was provided that appointment to the post of Law Officer shall be made from the cadre of Deputy Law Officers who have held said post for not less than 5 years. v. It is the contention of the Corporation that the said amendment has not yet come into force as the same is not approved by the State Government and the same has not been published in the official gazette.
vi. It is the contention of the Petitioner that to deprive her the promotion to the post of Law Officer, malafidely seven Show Cause Notices were issued in the month of March-2018 regarding alleged lacunas of the year-2009 in her work and enquiry was initiated. It is the contention of the Petitioner that the said enquiries have been initiated with malafide purpose to keep her out of the consideration for the said post of Law Officer and therefore, by impugned letter/order dated 11th October, 2021 she was directed to attend enquiry.
vii. It is also the contention of the Petitioner that for the Page 6 of 68 4th February, 2022 WPL-23789-2021-.DOC said malafide purpose, Respondent No.3 was appointed as the Incharge Law Officer by the impugned order dated 7th October, 2021, although the Petitioner is senior most.
5. We have heard Mr. Anil Anturkar, learned Senior Counsel for the Petitioner in Writ Petition (L) No. 23789 of 2021, Mr. A. V. Bukhari, learned Senior Counsel for the Respondent Nos. 1 & 2 in both Writ Petitions, Mr. R. A. Thorat, learned Senior Counsel for the Respondent No.3 in Writ Petition (L) No. 23789 of 2021 and Dr. Uday P. Warunjikar, learned Advocate for the Petitioner in Writ Petition (L) No. 23165 of 2021.
6. Mr. Anil Anturkar, the learned Senior Counsel for the Petitioner raised following contentions:-
i. The impugned Show Cause Notices issued in the month of March-2018 are with respect to the alleged defaults/deficiencies in the work which have been committed in 2009 and therefore, action of issuance of said Show Cause Notices and initiation of enquiry on the basis of same is malafide and colourable exercise of power. He submitted that said action is taken only for the purpose of denying promotion to the Petitioner as Law Officer.
ii. He relied on a resolution of MCGM approved on 17 th Page 7 of 68 4th February, 2022 WPL-23789-2021-.DOC November, 2020 by which applicable provisions relating to the appointment to the post of Law Officer were amended and submitted that the Petitioner is only person qualified for promotion to the post of Law Officer as she has completed 3 years in the post of Joint Law Officer. He submitted that Respondent No.3 does not fulfill the said criteria.
iii. He submitted that as per said amended rules, as Respondent No.3 is not qualified to be appointed to the post of Law Officer and therefore, he even cannot be appointed in the said post as Incharge.
iv. As far as the contention raised in the Affidavit-in- Reply that amended rules on which the Petitioner is relying, the same have not come into force as the same are not yet approved by the State Government and not published in official gazette as per Section 80B (4) and (5) of the Mumbai Municipal Corporation Act("the said Act"), he submitted that the said post is covered by Section 80B (4) (a) of the said Act. He submitted that circular dated 25th February, 2005 issued by the Government is applicable to the said post and therefore, it has to be held that there is previous sanction and therefore, there is no question of further sanction or approval.Page 8 of 68
4th February, 2022 WPL-23789-2021-.DOC v. As far as the Show Cause Notices issued regarding failure to take steps for filing appeal in certain suits which were decided in 2009, he submitted that action cannot be taken after delay of about 9 years. He submitted that action is taken as the Petitioner was due for getting her promotion as Joint Law Officer. He pointed out reply to Show Cause Notices given by the Petitioner on 12 th May, 2021 (Exhibit-L). He pointed out reply dated 12th May, 2021 of the Petitioner submitted to the said Memorandum of Charges. In paragraph 2 of the said reply, it is specifically contended that the said allegations are made against her purposely with malafide intention of depriving her from the post of Law Officer. He pointed out the Petitioner's assertion in reply to the effect that the Petitioner had sent all the appeal memos on 12th April, 2012 and relied on letter dated 11th June, 2012 of Clerk working in MCGM pointing out that appeals could not be filed as required expenses were not made available.
vi. He relied on the judgment of the Supreme Court reported in the case between State of Madhya Pradesh Vs. Bani Singh & Anr.1 and particularly, paragraphs 4 and 6 of the same to substantiate his 1 1990 (Supp) SCC 738 Page 9 of 68 4th February, 2022 WPL-23789-2021-.DOC contention that enquiry after inordinate delay should not be conducted. He pointed out rule 8 regarding the procedure to be followed while imposing penalties and relied on rule 8(4) and rule 8(15) and submitted that it cannot be held that MCGM has started enquiry. Thus, he submitted that sealed cover procedure cannot be adopted while considering the claim of the Petitioner to the post of Law Officer. To substantiate this contention also he relied on said judgment in the case of State of Madhya Pradesh Vs. Bani Singh & Anr. (Supra).
vii.He again reiterated that requirement of previous sanction has been satisfied in view of Government circular dated 25th February, 2005 and therefore, contended that Petitioner is only qualified for the said post of Law Officer as she is holding the post of Joint Law Officer and completed 3 years in the said post. He submitted that claim of Respondent No.3 cannot be considered for appointing him to the post of Law Officer as he is not the Joint Law Officer and therefore, there is no question of completion of minimum 3 years in the said post of Joint Law Officer.
viii. The appointment of Respondent No.3 as Incharge Law Officer is arbitrary and illegal as the Petitioner is senior most in Law Department of M.C.G.M. Page 10 of 68 4th February, 2022 WPL-23789-2021-.DOC
7. On the other hand, Mr. A. V. Bukhari, the learned Senior Counsel appearing for Respondent Nos. 1 and 2 raised following contentions:-
i. The Writ Petition is frivolous, premature and amounts to abuse of process of law. The Memorandum of Charges disclosed very serious allegations against Petitioner and the said conduct amounts to dereliction of duty on part of the Petitioner.
ii. The Petitioner has challenged notice of enquiry dated 11th October, 2021 and as the said notice is not order, the same cannot be challenged under Article 226 of the Constitution of India.
iii. Petitioner is delaying the disciplinary proceedings.
iv. He pointed out page 117, paragraph 15 of the Affidavit-in-Reply and submitted that the Petitioner had earlier faced several enquiries and her conduct is not unblemished.
v. He pointed out page 144 of Affidavit-in-Reply, part of Manuals of Law Officer wherein duties of Assistant Law Officer are set out. He pointed out that duty of Page 11 of 68 4th February, 2022 WPL-23789-2021-.DOC Assistant Law Officer is to examine judgment and orders and prepare appeals after discussing with concerned Deputy Law Officer/Law Officer for filing appeals whenever required. He submitted that in 2009, the said seven suits were decreed and Petitioner failed to take steps for filing appeal. He relied on delay condonation application filed in appeal and particularly, averments in Civil Application for delay condonation to the effect that Advocates/Municipal Officers who were attending the said matters when the same were pending before the City Civil Court did not inform the progress of the matter so also, did not inform the passing of the judgment and decree. He pointed out that the said delay condonation application has been signed by the Petitioner. He pointed out letter dated 5 th June, 2018 of the Petitioner to substantiate his case that Petitioner has acted negligently.
vi. He pointed out appointment order dated 7th October, 2021 of Respondent No.3 as Incharge Law Officer and submitted that the said order is validly passed, as Section 64(3) of the said act vests executive power with the Commissioner. He justified the order issued in favour of Respondent No.3 appointing him as Incharge Law Officer. He relied on judgment of this Court passed in case of Shashikant Page 12 of 68 4th February, 2022 WPL-23789-2021-.DOC Anant Kale Vs. Mumbai Municipal Corporation & Anr2 particularly on paragraph 26 of the said judgment. He pointed out paragraph 7 and 8 on page 109 of the Affidavit-in-Reply and submitted that the entire executive power for the purpose of carrying out the provisions of the said Act vests in the Commissioner and submitted that as per Service Regulation No. 52, Municipal Commissioner can give additional charge to the Corporation employee as deem fit and proper considering various factors. He submitted that by impugned order dated 7 th October, 2021, the Respondent No.3 who was holding a lower post was merely asked to discharge the duty of higher post which cannot be termed as promotion.
He submitted that the Respondent No.3 continued to hold the substantive post which is lower post and only discharges the duty of the higher post as stop- gap arrangement. He relied on Section 68 of the said Act and submitted that powers of Corporation are delegated to the Municipal authorities. He relied on Ramakant Shripad Sinai Advapalkar Vs. Union of India & Ors.3 vii.He submitted that as per the existing rules of promotion, appointment to the post of Law Officer 2 Writ Petition No. 1370 of 2020 decided on 23rd February, 2021.
3 (1991) Supp. 2 SCC 733 Page 13 of 68 4th February, 2022 WPL-23789-2021-.DOC shall be made by promotion from the Deputy Law Officer in the Legal Department of the Corporation inter alia who has held the said post for not less than 5 years. He relied on Section 80B (4) (a) and Section 80B (5) and submitted that previous sanction of the State Government is necessary for rules to come in force and publication of the same in the official gazette is necessary. He submitted that the rules proposed on 17th November, 2020 cannot come into force without the previous sanction and without publication in official gazette. He submitted that previous sanction and publication is mandatory. To substantiate this point he relied on judgment of Supreme Court in the case between Municipal Corporation of Greater Mumbai, through Commissioner Vs. Anil Shantaram Khoje & Ors.4 particularly, on paragraph 14 and 15 of the same. He relied on judgment of this Court passed in case of Anil Shantaram Khoje & Anr Vs. The Municipal Corporation of Greater Mumbai & Anr .5 and particularly on paragraph 5 and 7 of the said judgment which was challenged before Supreme Court and decided by aforesaid judgment reported in (2016) 15 SCC 726.
4 (2016) 15 SCC 726 5 Writ Petition No. 2191 of 2008 decided on 7th October, 2009.
Page 14 of 684th February, 2022 WPL-23789-2021-.DOC viii.He pointed out minutes of departmental promotion committee meeting held on 13 th October, 2021 and paragraph 9 of the Affidavit-in-Reply. He submitted that as per the State Government GR dated 15th December, 2017 which was adopted and circulated by Corporation by circular dated 6th May, 2019 a sealed cover procedure has been followed in respect of promotion of the Petitioner. He relied on following judgements of Supreme Court to substantiate his contention that sealed cover procedure is correctly adopted in case of the Petitioner:-
1. Union of India Vs. K. V. Jankiraman & Ors.6
2. Delhi Development Authority Vs. H. C. Khurana7
3. Union of India Vs. Kewal Kumar 8 ix. He relied on the judgment reported in the matter between Anant R. Kulkarni Vs. Y. P. Education Society & Ors.9 and particularly, paragraph 14 of the same and submitted that initiation of enquiry after long delay is not fatal. He also relied on following judgments of the Supreme Court to substantiate said contention and submitted that interference in extraordinary jurisdiction under Article 226 of the Constitution of India is not warranted:-
6 1991(4) SCC 109 7 1993 (3) SCC 196 8 1993 (3) SCC 204 9 (2013) 6 SCC 515 Page 15 of 68 4th February, 2022 WPL-23789-2021-.DOC
1. Union of India & Anr. Vs. Kunisetty Satyanarayan 10
2. State of Karnataka & Anr. Vs. N. Gangaraj.11 x. While answering the submission of learned Senior Counsel for the Petitioner and his reliance on Section 85, 85A and Section 80A (2) he reiterated that Commissioner has exercised power under Section 64(3) and therefore, contended that the impugned order dated 7th October, 2021 is within the powers of the Commissioner.
8. Mr. Thorat, the learned Senior Counsel appearing on behalf of the Respondent No.3 submitted that by the impugned order dated 7th October, 2021 neither the Respondent No.3 was promoted to the post of Law Officer nor he has been appointed to the said post. By the impugned order only additional charge is given to the Respondent No.3. He submitted that no right is created in favour of Respondent No.3 by giving additional charge. He submitted that no right of the Petitioner is infringed by the said impugned order dated 7th October, 2021 and therefore, Writ Petition be not entertained. He submitted that Writ Petition against Show Cause Notices is also not maintainable. He submitted that Petitioner was superseded 10 (2006) 12 SCC 28 11 2020 (3) SCC 423 Page 16 of 68 4th February, 2022 WPL-23789-2021-.DOC twice. He submitted that the Petitioner has not vested right of getting promotion and therefore, there is no infringement of her right and no right is claimed in the petition and the Writ Petition is not on the basis of infringement of any right. He submitted that Petitioner has replied to Show Cause Notices and participated in the enquiry and therefore, petition be not entertained.
9. In rejoinder, Mr. Anil Anturkar, learned Senior Counsel appearing on behalf of the Petitioner submitted that Section 64 (3) has no application and applicable provision will be Section 85A regarding temporary appointment and therefore, submitted that impugned order dated 7th October, 2021 is illegal. He again relied on the judgment in the matter between State of Madhya Pradesh Vs. Bani Singh & Anr. (Supra). He relied on paragraph 16 of Union of India & Anr. Vs. Kunisetty Satyanarayan (Supra) wherein, Supreme Court has held that in some very rare and exceptional cases, the High Court can quash a chargesheet or Show Cause Notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. He relied on paragraph 14 of Anant R. Kulkarni vs. Y. P. Education Society & Ors. (Supra) and submitted that in this particular case, apart from delay the action is malafide and there is victimization and therefore, submitted that the relief be granted.
10. Dr. Warunjikar, learned Counsel appearing for the Petitioner in Writ Petition (L) No. 23165 of 2021 adopted Page 17 of 68 4th February, 2022 WPL-23789-2021-.DOC arguments of Mr. Anil Anturkar, learned Senior Counsel appearing for the Petitioner in Writ Petition (L) No. 23789 of 2021. He submitted that the Corporation has not taken any steps from 2009 to 2017 against the Petitioner. He relied on circular dated 29th November, 2019 on page 33 of Writ Petition (L) No. 23165 of 2021. He submitted that admittedly, the Petitioner was assigned duties at Bombay City Civil Court at Dindoshi as Assistant Law Officer on 1 st October, 2010. He submitted that in the facts and circumstances of this case, the reliefs sought in said Writ Petition be granted and pointed out prayer clause (c) of the said Writ Petition to the effect that the candidature of the Petitioner to the post of Law Officer be considered without getting influenced by seven Show Cause Notices and Memorandum of Charges.
11. Thus, in view of the contentions raised in the Writ Petition and the Affidavit-in-Reply and the submissions of all the parties following questions arise for our consideration:-
i. Whether the modification regarding qualification for appointment to the post of Law Officer (Exhibit-E/Page 30) has come into existence and is applicable or the earlier provision before the said modification will be in existence and applicable?Page 18 of 68
4th February, 2022 WPL-23789-2021-.DOC ii. Whether impugned Show Cause Notices and Memorandum of Charges are legal and fair?
iii. Whether in Petitioner's case Sealed Cover Procedure is required to be followed?
iv. Whether impugned order dated 7th October, 2021, by which Respondent No.3 has been appointed as Incharge Law Officer is valid and legal?
12. Before going into the legality and validity of impugned Show Cause Notices and Memorandum of Charges as well as legality and validity of impugned order dated 7th October, 2021, we deem it appropriate to decide whether the modification regarding qualification for appointment to the post of Law Officer (Exhibit-E/Page 30) has come into existence and is applicable or the earlier provision before the said modification will be in existence and applicable. The earlier provision before the said amendment inter alia provides that appointment to the post of Law Officer shall be made by promotion among the Deputy Law Officer in the Legal Department of the Corporation who have held that post for not less than 5 years. However, the said amended provision provides that the appointment to the post of Law Officer shall be made by promotion from the Joint Law Officer who have held that post for minimum 3 years.
Page 19 of 684th February, 2022 WPL-23789-2021-.DOC
13. Mr. Bukhari, the learned Senior Counsel has relied on Section 80B(4) (a) and Section 80B (5) of the said Act. He contended that Section 80B(4) (a) mandates that rules prescribing the qualification to be possessed by candidates eligible for appointment to such posts shall be made with the previous sanction of the State Government and Section 80B (5) mandates that the rules made under the said Section shall be published in the official gazette. Chapter IV of the said Act is regarding Municipal Officers and Servants. Section 80A (1) provides that the power of appointment of the Municipal Officers, who are temporary or permanent to the posts which rank equivalent to or higher than post of Executive Engineer set forth in schedule shall vest in the Corporation. Section 80A (2) provides that save as otherwise provided in this Act, the power of appointing Municipal Officers and Servants, whether temporary or permanent, shall vest in the Commissioner. Section 80B is regarding manner of making appointment. Section 80B (1) provides that no person shall be appointed to a post; the power of appointment to which vests in the Corporation or the Standing Committee and which is equivalent to, or higher than, the post of Executive Engineer, except after consultation with the Maharashtra Public Service Commission in accordance with the rules made under this Section. Section 80B(2) provides that nothing in sub-Section (1) shall apply to any acting or temporary appointment for a period not exceeding six months. Section 80B (4) (a) provides that in the case of post referred to in clause (a) of sub-Section 1 of Section Page 20 of 68 4th February, 2022 WPL-23789-2021-.DOC 80B the Corporation shall with the previous sanction of the State Government make rules prescribing the qualifications to be possessed by the candidates eligible for appointment to such posts and Section 80B(5) provides that the rules made under this Section shall be published in the official gazette. There is no dispute that the post of the Law Officer is equivalent or higher than the post of Executive Engineer. Thus, it is clear that the provisions of Section 80b (4) (a) and Section 80B(5) are applicable to the present case. Thus, it is absolutely essential that in the case of Law Officer rules prescribing the qualifications to be possessed by candidates eligible for appointment to said post shall be mandatorily be required to be made with previous sanction of the State Government and such rules shall be published in the official gazette. It is settled legal position that if a statute provides a thing to be done in a particular manner then, the same is required to be done in that manner only and not in any other manner. Thus, in view of said specific provision of Section 80B (4) (a) and Section 80B (5) of said Act, it is necessary to examine the factual position and rival contentions in the present case.
14. Mr. Bukhari, the learned Senior Counsel submitted that as per Section 80B (4) (a), it is mandatory that previous sanction of the State Government shall be obtained for rules prescribing the qualifications to be possessed by the candidates eligible for appointment to the post of Law Officer. He submitted that there is no such previous sanction obtained of the State Government. He Page 21 of 68 4th February, 2022 WPL-23789-2021-.DOC submitted that there is no publication in the official gazette of such rules as per the requirement of Section 80B (5) and therefore, the said amended rules have not come into effect.
15. To counter this submission, Mr. Anil Anturkar, learned Senior Counsel for the Petitioner submitted that what is contemplated under Section 80(4) (a) is previous sanction and not the approval. He submitted that the said amended rules annexed at Exhibit-E (page 30) makes reference to Government resolution dated 25th February, 2005. He submitted that the said Government resolution is very clear and the same is previous sanction for said amended rules. He produced a copy of said resolution dated 25th February, 2005.
16. A perusal of said GR dated 25 th February, 2005 shows that by earlier GRs dated 20th July, 1981, 25th August, 1988, 31st May, 1989 and 4th September, 1999 it has been provided that for certain posts the candidates who have held immediate lower post atleast for minimum 3 years, only such candidates would be considered for promotion and therefore, by said GR it has been directed that for all posts of Class-I to Class-III candidate to be considered for promotion should have held immediate lower post atleast for minimum period of 3 years. Mr. Anturkar, learned Senior Counsel submitted that the said G.R. is applicable to Page 22 of 68 4th February, 2022 WPL-23789-2021-.DOC all Class-I to Class-III posts and therefore, the same amounts to previous sanction.
17. Thus, it is necessary to see earlier provision regarding appointment to the post of Law Officer and amended provision. The earlier provision and amended provision as set out at Exhibit-E (Page 30-32) are reproduced hereinbelow for ready reference:-
Ck`gUeqacbZ egkuxjikfydk] fof/k [kkrs fof/k [kkR;krhy dk;nk vf/kdkjh ;k inkP;k vgZrk eatwjh dzekad ,eih,e@II@8768 fn-17/11/2020 inuke o osruJs.kh fo|eku vgZrk lq/kkjhr vgZrk vfHkizk; dk;nk vf/kdkjh egkikfydk Bjko dz-822 fnukad 28- in ladsrkad ch 134 osruJs.kh ladsrkad 09-1984 ch 01 'kklu Bjko dz- ch,elh osruJs.kh¼lgkO;k osru vk;ksxkuqlkj :- 1584@5668@,eOgh@3 fnukad 08-
15600&39100 vf/kd usgehps HkRrs½ 05-1985
¼lkrO;k osru vk;ksxkuqlkj ihch3&,e lg okpko;kP;k fnukad 18-04-1991
49%78800&209200½ P;k 'kq/nhi= dza
ch,elh&1584@5678@;qlh@21
Appointment to the post shall
be made-
(A) By promotion among the
Deputy Law Officers in the v½ inksUurhus& 1½ la;qDr dk;nk vf/kdkjh
egkuxjikfydsP;k fof/k gk laoxZ uO;kus fuekZ.k
Legal Department of the
[kkR;krhy ^la;qDr dk;nk >kY;kus lnj laoxkZpk
Corporation, who- vf/kdkjh* ;k laoxkZrhy vf/ varHkkZo dk;nk
kdk&;kae/kwu [kkyhyizek.ks& vf/kdkjh ;k laoxkZP;k
(i) have held that post not less vgZrse/;s dj.;kr ;sr
than five years and vkgs-
(ii) possess adequate
knowledge of Marathi to ,d½ T;kaph ^la;qDr dk;nk
enable them to read, write vf/kdkjh* ;k inkoj fdeku 2½ egkjk"Vª 'kklu] lkekU;
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and speak that language with vkgs- dz- ,lvkjOgh&2005@iz-
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iz'uif=dk vlysyk ejkBh Hkk"kk fo"k;d vV lekfo"V
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Page 23 of 68
4th February, 2022
WPL-23789-2021-.DOC
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lknj dj.;kl lwV Ikp½ ifji=d
ns.;kdjhrk 'kklukus dz- ,eih,e@nksu@6381
osGksosGh lax.kd gkrkG.kh fn- 19-11-2005 uqlkj
okijkckcr ekU;rk fnysyk lax.kd fo"k;d Kkukph
vH;kldze iw.kZ dsysyk vV lekfo"V dsyh vkgs-
vlkok-
fdaok
OR IknksUurhus mesnokj miyC/k u
(B) By selection from along >kY;kl&
c½ ljGlsous s
candidates, who
¼tkfgjkrhOnkjs½&
(i) unless already in the ,d½ egkuxjikfydsP;k lsosr ,d½ cny ukgh
service of the Municipal vxksnjp ulY;kl o; 45
Corporation of Greater o"kkZais{kk tkLr ulkos
Mumbai, are not more than 45 ¼ekxkloxhZ; mesnokjkadfjrk
years of age to (50 years in 50 o"kZs½
case of candidates belonging
to Backward Classes)
(ii) Possess a degree in Law of
statutory University nksu½ oS/kkfud fo|kihBkph nksu½ cny ukgh
dk;nk 'kk[ksrhy inoh /kkj.k
dj.kkjk vlkok-
(iii) Possess experience of
administrative-cum-legal work rhu½ 'kkldh;] rhu½ cny ukgh
in a responsible position in a fue&'kkldh; fdaok vkS| ksfxd laLFkse/khy government, semi-government tckcnkjhP;k inkojhy establishment or an industrial iz'kkldh;&fu&dk;nsfo"k;d organisation for a period of dkekpk fdeku lgk o"kkZapk not less than ten years and vuqHko /kkj.k dj.kkjk vlkok- pkj½ ifji=d
(iv) Have adequate knowledge dz- ,eih,e@5061 fn-
of Marathi so as to be able to pkj½ mesnokj ek/;fed 27-02-2003 uqlkj ejkBh read, write and speak that 'kkykar izek.ki= fdaok rRle Hkk"kk fo"k;d vV lekfo"V fdaok mPpre ifj{ksr 100 dsyh vkgs-
language with facility. xq.kkaph iz'uif=dk vlysyk ejkBh fo"k; ¼mPp Lrj fdaok fo|eku /kksj.kkuqlkj izpfyr fuEu Lrj ?ksÅu mRrh.kZ vgZrsuqlkj vko';drk vlkok½ ukgh-
Provided that the age limit
may be relaxed in favour of oxGys
candidates having exceptional
qualifications or experience or ikp½ mesnokj Mh-vks-bZ-,-lh-
lh- lkslk;Vhps ^lh-lh-lh-
both.
¼c.c.c.½ fdaok ^vks Lrj*
Provided further that the
fdaok ^, Lrj* fdaok ^ch
requirement regarding the Lrj* fdaok ^lh Lrj*
period of experience may be Lrjkojhy izek.ki= fdaok
relaxed at the discretion of the egkjk"Vª jkT; mPp vkf.k
Maharashtra Public Service rkaf=d f'k{k.k eaMGkps
Commission, if at any stage of ^,e-,l-lh-vk;-Vh-* fdaok
selection the commissioner are ^th-bZ-lh-Vh- izek.ki=/kkjd
of the opinion that sufficient vlkok fdaok lnj izek.ki=
lknj dj.;kl lwV
number of candidates
ns.;kdjhrk 'kklukus
belonging to Scheduled Castes osGksosGh lax.kd
including Scheduled Caste gkrkG.kh@okijkckcr ekU;rk
converts to Buddhism, fnysyk vH;kldze iw.kZ
Scheduled Tribes, Denotified dsysyk vlkok- rFkkfi]
Tribes and Nomadic Tribes fu;qDrhP;k osGh
possessing experience for the mesnokjktoG lnj izek.ki=
prescribed period are not ulY;kus R;kus @frus
'kklukus fofgr dsysyh vgZrk lekIr
likely to be available to fill the
^,e-,l-lh-vk;-Vh* ph
vacancies reserved for such ijh{kk use.kwdhP;k
Caste and Tribes. fnukadkiklwu nksu o"kkZaP;k
vkr mRrh.kZ gks.ks vko';d
vkgs- vU;Fkk R;kaph lsok
Page 24 of 68
4th February, 2022
WPL-23789-2021-.DOC
lekIr dj.;kr ;sbZy-
lgh lgh lgh lgh lgh lgh
dk;nk vf/kdkjh izeq[k deZpkjh vf/kdkjh lg vk;qDr ¼fo'ks"k½ lg vk;qDr ¼lk-iz-½ vfrfjDr vk;qDr ¼'kgj½ egkuxjikfydk vk;qDr
18. A perusal of above original provision and amended provision clearly show that the amendment is beyond the scope of said G.R. dated 25th February, 2005. Assuming that the said G.R. dated 25th February, 2005 to be the previous sanction, it can at the most be said that said G.R. is only concerning with only one aspect of the proposed amendment namely prescribing 3 years service in the post of Joint Law Officer for promotion to the post of Law Officer. However, there are several other changes in the proposed amendment and therefore, it cannot be said that there is previous sanction to the said changes. Therefore, there is no substance in the contention of Mr. Anturkar, learned Senior Counsel that said amendment has previous sanction as contemplated under Section 80B (4) (a) of the said Act.
19. It is further significant to note that it is not even the case of the Petitioner that the said amended rules are published in the official gazette. Therefore, it is clear that the said amended rules have not come into force and therefore, the rules which are in force inter alia provides that appointment to the post of Law Officer shall be made by promotion from the candidates holding the post of Deputy Law Officer in the Legal Department of the Corporation and who have held that post for not less than 5 Page 25 of 68 4th February, 2022 WPL-23789-2021-.DOC years. In this behalf, Mr. Bukhari, learned Senior Counsel has rightly relied on judgment of Supreme Court in the matter between Municipal Corporation of Greater Mumbai Vs. Anil Shantaram Khoje & Ors. (Supra) particularly, on paragraphs 14 and 15 of the same. The relevant portion of the said judgment is reproduced hereinbelow for ready reference:-
"14. We are immediately reminded of the observations made in Babu Verghese vs Bar Council of Kerala, when this Court was called upon to consider a case under the Advocates Act. While doing so, we applied the principles earlier enunciated in Taylor vs Taylor and in Nazir Ahmad v. Kind Emperor. The Court observed as follows:
(Babu Verghese case, SCC p. 432, para 31) "31. It is the basic principles of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all".
15. In this conspectus we find ourselves unable to accept the position favoured by the High Court in the impugned Judgment. The extant Rules would become operative only from the date of its promulgation by publication in the Official Gazette, i.e. on 28-04-2011. Promotions made prior to 28-04-2011 under the extant Rules promoting Shri Anil Shantaram Khoje (Contesting Respondent No. Page 26 of 68 4th February, 2022 WPL-23789-2021-.DOC
1), Shri B.P. Kolekar (Contesting Respondent No. 5) and Shri P.J. Patil to the post of Deputy Municipal Commissioner could not have been effected in the absence of publication of the extant Rules in the Official Gazette."
(Emphasis supplied)
20. It is significant to note that in the said judgment of M.C.G.M. Vs. Anil Shantaram Khoje & Ors (Supra), the Supreme Court was considering challenge to the judgment and order dated 7th October, 2009 passed by a co-ordinate Bench of this Court in Anil Shantaram Khoje & Anr (supra). In the said Bombay High Court judgment, what is held in paragraph 7 that reading of Section 80B (4) and (5) shows that there is a requirement of the Rule being published in the official gazette, but there is no provision found to the effect that the Rule will not come into force till it is published in the official gazette or that for making the Rule effective publication of that Rule in the official gazette is necessary. It has been held that once the Corporation passes the resolution proposing amendment in the Rule and that proposal is sanctioned by the State Government, the Rule will come into force though there is a requirement of publication of the Rule in the official gazette. The Corporation can publish the Rule in the official gazette subsequently also. It is further held that though it is desirable for the Corporation to publish the Rule in the official gazette, implementation of the Rule cannot depend on publication of the Rule in the official gazette.
Page 27 of 684th February, 2022 WPL-23789-2021-.DOC
21. Thus, the observations of Supreme Court in the said case of MCGM Vs. Anil Shantaram Khoje & Ors (Supra) clearly show that the Division Bench Judgment of this Court holding that the rules will come into force immediately after the same are sanctioned by the State Government is expressly disapproved by the Supreme Court and it is held that publication of the same in official gazette is the mandatory requirement. Thus, we have no manner of doubt that both the requirements namely previous sanction of the State Government for making rules contemplated under Section 80B (4) (a) and publication of the same in the official gazette as required under Section 80B(5) are the mandatory requirements and unless these two mandatory requirements are complied with, the said rules cannot come into force. Therefore, the submission/contention of the Petitioner that the said amended rules as set out at Exhibit-E, (pages 30-32) have come into force cannot be accepted in the absence of compliance of aforesaid two mandatory requirements. There is nothing to show that the said rules have got previous sanction of State Government and in any case, there is nothing to show that the same are published in the official gazette. Thus, we have no hesitation in holding that the rules which are applicable are the unamended rules.
22. The next contention which is required to be considered is whether seven Show Cause Notices issued in March-2018 and the subsequent Memorandum of Charges dated 12th March, 2021 are legal or the same is malafide Page 28 of 68 4th February, 2022 WPL-23789-2021-.DOC exercise of the power. Factual position in this behalf is as follows:-
22.1. The Petitioner in her capacity as Assistant Law Officer has handled following suits before the Bombay City Civil Court, Bombay and the same were disposed of in the year 2009. The details of the same in tabular form are given by the Petitioner at Exhibit-A. The said details are reproduced hereinbelow for ready reference:-
Sr. Suit No. Plaintiff Defendant Disposed on No.
1. 2632/05 Pankaj Mehta MCGM 1/1/2009
2. 2569/05 Sanjay M. Chopra MCGM 12/10/2009
3. 2770/05 Biharilal Wadhwa MCGM 19/12/2009
4. 2795/05 Delux Polymer Pvt. Ltd. MCGM 16/10/2009
5. 242/06 M/s. Vitesse MCGM 16/10/2009
6. 2793/05 Comprade Lease Finvest Pvt. Ltd. MCGM 16/10/2009
7. 2678/05 Elegant Marbles & Granite MCGM 12/10/2009 22.2. In the Writ Petition the Petitioner has stated that she was appearing only in matters at Sr. Nos. 1 to 5 and not concerned with matters mentioned at Sr. Nos. 6 and 7.
22.3. It appears that seven separate Show Cause Notices were issued to the Petitioner in the month of March-2018.
The said Show Cause Notices are in identical forms except variation in details of aforesaid particular case. One such Show Cause Notice is reproduced hereinbelow for ready reference:-
Page 29 of 684th February, 2022 WPL-23789-2021-.DOC "SHOW CAUSE NOTICE Shri Sanjay Chopra had filed the aforesaid suit bearing No. 2569 of 2005 challenging notices issued u/s 351 of MMC Act and the order passed therein by Asstt. Municipal Commissioner. The matter is decreed by the Hon'ble Court on 12.10.2009 thereby Corporation is permanently restrained from acting upon Notice u/s 351 of MMC Act and the order passed therein. It is seen from the Decree and Judgment passed by the Hon'ble Court that you appeared and conducted the final hearing of the matter. Being the concerned Asstt. Law Officer, it was your duty to take immediate necessary steps to file First Appeal before the Hon'ble High Court. However, you have not taken steps to file First Appeal till date nor the aforesaid fact was brought to the notice of Higher-ups.
Therefore, you are responsible to ensure that necessary First Appeal should have been filed which has not been filed in the aforementioned suit till date. After examining the Roznama and the proceedings of the aforementioned suit and the final judgement and order dated 12.10.2009, it is seen that you had appeared in the said suit and therefore, it was incumbent on your part to take all possible steps to prefer First Appeal before the Hon'ble High Court. Hence, non-filing of First Appeal in the prescribed time before the Hon'ble High Court, you have defaulted in discharging the duties resulting in serious lapses in the official course of your duties. The said Act is serious nature.
You are hereby directed to explain within 7 days from the receipt of this Show Cause Notice that why steps have not been taken to challenge the said Order/Decree Page 30 of 68 4th February, 2022 WPL-23789-2021-.DOC before the competent Court of Law. If the explanation is not received within 7 days, it means you have nothing to say hence necessary action as deemed fit will be initiated including disciplinary action against you as per the service Rules and Regulation prevailing in force, which please note.
Jernold J. Xavier
Law Officer"
(Emphasis Supplied)
22.4. The Petitioner has sent common reply on 28 th March, 2018 to the seven Show Cause Notices. The said reply dated 28th March, 2018 is reproduced hereinbelow for ready reference:-
"Date: 28/03/2018 To, The Law Officer, Legal Department Sub.: 07 Show Cause Notices u/NO.LEA/1728 dtd.28/03/2018.
Sir, I am in receipt of the above notices. It is pertinent to note that I have already drafted appeals in the year 2012, in the matter mentioned in the above show cause notices.
I was transferred to Dindoshi Legal Department in January-2010 and I was promoted as Dy. Law Officer in the year-2012, having posted at Dindoshi Legal Department. I have alreadily drafted Page 31 of 68 4th February, 2022 WPL-23789-2021-.DOC the appeals and forwarded them to Appellate Section on 12/04/2012.
It is further being brought to your kind notice that though 07 Show Cause Notices were served upon me on 21/03/2018, however, only 03 briefs/proceedings were sent. The undersigned has not received remaining 05 matters i.e. L.C.Suit Nos.
1)242/2006, 2) 2668/2005, 3) 2569/2005, 4) 2632/2005 and 5) 2770/2005 till date. It is further stated that Suit Nos. 2857/2005 was conducted by A.L.O. Shri. Dhuldhule which was wrongly sent to me.
It is further stated that as my Appeals were ready in the year 2012. I have taken the copies of the Appeals and I am forwarding the same.
It is most respectfully stated that I have been issued the Show Cause Notices, by not putting the correct facts before your goodself. I am hereby submitting my explanation with an earnest request to withdraw the above Show Cause Notices and grant me relief accordingly.
Thanking you, Yours Sincerely,
s/d
(S.R. Sandansing)
Dy. Law Officer (W.S.)
City Civil Court,
Dindoshi"
(Emphasis Supplied)
Page 32 of 68
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WPL-23789-2021-.DOC
22.5. Thus, the Petitioner has raised following contentions in the said reply :-
i. The Petitioner has already drafted appeals in the year 2012 and forwarded them to appellate section on 12th April, 2012.
ii. The Petitioner was transferred to Dindoshi Legal Department in January-2010 and she was promoted as Deputy Law Officer in June-2012 having posted at Dindoshi Legal Department.
22.6. To support her contention the Petitioner has relied on letter dated 6th October, 2012 of the Managing Clerk (G/S), M.C.GM. The said letter is reproduced hereinbelow for ready reference:-
"Ck`gUeqacbZ egkuxjikfydk dz- LIR/429 fnukad 6/10/12 mi dk;nk vf/kdkjh ¼fnok.kh o l= U;k;ky;½ o tu ekfgrh vf/kdkjh Ref :LIR/429 DTD. 4.10.2012 vkiys fnukad 3.10.2012 ps Jh- yqbZl lk;eu fMlks>k ;kauk ikBfoysY;k i=kph izr dz- LIR/429 fnukad 4.10.2012 feGkyh- fodsanzhdj.k dj.;kP;k vxksnjps loZ vfiy dj.;kps lqV ~l] dk;kZy; vf/k{kd Jh- tkWulkgsckauh lkafxrY;kizek.ks VkbZi djko;kl fnys gksrs o r;k fcyk rDrk Jherh fLerk eWMedMs ,fizy 2012 efgU;krp fnysyk vkgs- rks rDrk lkscr tksMysyk vkgs- R;kps v|ki i;Zar iSls feGkysys ukghr-Page 33 of 68
4th February, 2022 WPL-23789-2021-.DOC rlsp fodszanzhdj.k >kY;kuarj fnukad 11.6.2012 jksth th@nf{k.k foHkkxkP;k dk;kZy; vf/k{kd o lgk¸;d vk;qDr th@nf{k.k ;kaP;kdMs] ykx.kk&;k dksVhP;k [kpkZlkBh vtZ dsyk gksrk- vtZ lkscr tksMyk vkgs- ¼R;krhy dzekad 4 igkok-½ ;k vtkZe/khy 1 o 3 dzekad lksMwu vtwugh R;kckcrhr [kPkkZph O;oLFkk >kysyh ukgh-
Jh- tkWulkgsckauh Qksuus lkafxrY;ko:u fnuakd 3.10.2012 jksth R;kpfno'kh lwV dz- 2616/2005 ps dkxni=s Jh- dqekj Vk;fiLV ;kaP;kdMs Vk;fiaxlkBh fnysys vkgs-
ekfgrhlkBh jokuk-
vkiyk fo'oklw] lgh@& ¼O;oLFkkiu fyfid th@n½"
(Emphasis Supplied) 22.7. The Petitioner has also relied on letter dated 11 th June, 2012 of Shri. Narsinh Joshi, Clerk of "G South Ward". In the said letter it is inter alia stated as under:-
"4. mPp U;k;ky;kr Appeal djko;kps vlY;kl ykx.kkjk [kPkZ] dkgh nkO;kackcr ekxhy nksu efgU;kaiwohZ foHkkx eq[; dk;kZy;kr [kpZ ekfxryk gksrk- ijarq] iz'kklukP;k fodszafnzdj.kkP;k /kksj.kkeqGs fn- 30.05.2012 iklwu t@nf{k.k foHkkxkr izyafcr vkgs- T;k nkO;kackcr vihy djko;kps vlY;kl [kpkZph O;oLFkk dj.;kr ;koh-"
22.8. It appears that ultimately the First Appeals in this Court alongwith Delay Condonation Applications were filed in June-2018. Mr. A. V. Bukhari, the learned Senior Counsel appearing on behalf of the Respondent Nos. 1 and 2 has Page 34 of 68 4th February, 2022 WPL-23789-2021-.DOC very strongly relied on the delay condonation applications filed in said First Appeals. He relied on contention raised in Civil Application No. 3057 of 2018 (for condonation of delay) in First Appeal (Stamp) No. 18596 of 2018 in Long Cause Suit No. 2632 of 2005 and particularly, on the following reasons given in the said delay condonation application:-
"5..... The Applicant states that the Advocate/Municipal Officers who were attending the instant matter when the same was pending before the Honourable City Civil Court, did not inform the progress of the matter so also did not inform the passing of the Judgment and Decree dated 12 th October, 2009. In the circumstances, it was immediately decided to apply for Certified Copy of the Judgment and Decree which was applied on 21/03/2018 and the same was made ready and available on 04/04/2018 and therefore there is delay of 8 years 221 days in filing the instant appeal which has caused due to lack of communication from the Advocate/Municipal Officers who was handling the matter. The Applicants states that simultaneously the Memo has also been issued against the Advocate/Municipal Officers and they have been show caused for explanation and the said memo shall be taken to its logical end and the errant officials will be appropriately punished.
6. The Applicant states that the Delay is required to be condoned as due to negligence and / or non- communication from the concerned officer/advocate, Page 35 of 68 4th February, 2022 WPL-23789-2021-.DOC the Applicant/ Appellant being Corporate and Statutory body should not suffer."
(Emphasis Supplied) 22.9. Mr. A. V. Bukhari, learned Senior Counsel emphasized that said delay condonation application has been signed by the Petitioner in her capacity as Advocate for the Applicant- MCGM. However, the learned Senior Counsel fairly admitted that the Civil Application was drafted by some other Advocate and the Petitioner has merely signed the same. It is significant to note that the Civil Application is affirmed on 19th June, 2018. The contentions raised in Civil Application for delay condonation are totally contrary to the contentions raised by Petitioner in her reply dated 28 th March, 2018 submitted to said seven Show Cause Notices, which is prior to the affirmation of said Civil Application. The contentions raised in said Civil Application for delay condonation are also contrary to contents of her reply dated 12th May, 2021 submitted to the Memorandum of Charges served on her on 12th March, 2021. In the said reply dated 12th May, 2021 she has reiterated her contentions raised in the said reply dated 12th March, 2021 to the said seven Show Cause Notices. Apart from that she has pointed out that from 2018 to 2021 no action whatsoever was taken against her. Further, the Petitioner has contended that the said action is taken malafidely, illegally and for the purpose of depriving her the promotion to the post of Law Officer.
Page 36 of 684th February, 2022 WPL-23789-2021-.DOC 22.10. Although Mr. Bukhari, the learned Senior Counsel appearing for the Respondent Nos. 1 and 2 fairly admitted that abovereferred First Appeals and Civil Applications for delay condonation were drafted by some other Advocate and the Petitioner has signed the same in her capacity as the Advocate of the Corporation, the same is also clear from letter dated 5th June, 2018 of the Petitioner addressed to the Deputy Law Officer, High Court, Appellate Side. The same is reproduced hereinbelow for ready reference:-
"The aforesaid Suit has been filed by the Plaintiff before the Hon'ble Civil Civil Court, Mumbai, CR No. 6 presiding before His Honour Judge, Shri. S.T. Mahajan, challenging the notice issued under Section 351 of MMC Act.
The above suit is decreed by His Honour Judge on 12/12/09. This Office has received the oral instructions to file the First Appeal before the Hon'ble High Court and as per the direction of Hon'ble AMC City, DMC Z-II and Law Officer the first appeal drafted by Council from the Panel A of the Corporation, and it is signed by the undersigned.
Thus, the First Appeal challenging the trial Court order is enclosed herewith with the copy of Judgment, Decree (original), First Appeal, Synopsis, Delay Application, Civil Application etc. and other plaint proceedings, same is forwarding for filing First Appeal before the Hon'ble High Court.Page 37 of 68
4th February, 2022 WPL-23789-2021-.DOC Submitted please.
Dy. Law Officer, (City Civil Court, W.S.) Dy Law Officer, High Court Appellate Side"
22.11. In the above background it is significant to note that in the said Memorandum of Charges dated 12th March, 2021 following allegations are made:-
ß2- lnj izdj.kh vki.k ojhy vuq- dz- 1 izek.ks dk;Zokgh u dsY;kckcr vkiY;kfo:/n f'kLrHkaxkph dkjokbZ dk dj.;kr ;sÅ u;s ;kckcr vki.kkoj dz-LEA/1728 fn- 20.03.2018 vUo;s izR;sd 7 izdj.kkr dkj.ks nk[kok uksVhl ctkoY;kuarj o R;k vuq"kaxkus vki.k dkj.ks nk[kok uksVh'khyk dz-Dy.LO/OD/402/WS,fn-28.03.2018 vUo;s ,df=ri.ks mRrj lknj dsY;kuarj lnj U;k;ky;hu izdj.kkae/;s vki.k foyackus Eg.ktsp ekgs twu] tqYkS o vkWxLV 2018 e/;s vihy nk[ky dsys o rs ln;fLFkrhr Pre-
Admission Lrjkoj vkgsr-Þ (Emphasis Supplied) 22.12. The Petitioner has given inter alia following reply on 12th May, 2021 to the abovereferred Memorandum of Charges :-
ßlu tkusokjh] 2010 e/;s ek>h cnyh fnaMks'kh fo/kh foHkkx ¼i-m½ ;sFks >kyh gksrh o vls vlwu ns[khy ;k loZ nkO;krhy vihy eh 12@04@2012 jksth eq[;ky;krhy vfiysV foHkkxkl ikBfoysyh vkgsr- tksMi= 1 P;k ifj- dz- 2 e/;s uewn dsY;kizek.ks eh ekgs twu] tqYkS o vkWxLV 2018 e/;s eh Page 38 of 68 4th February, 2022 WPL-23789-2021-.DOC vihy nk[ky dsys gs laiw.kZfjR;k [kksVs vkgs- ;k vf/kd lnj ckcrhr rRdkyhu O;oLFkkiu fyfid th@nf{k.k okMZ Jh- ujflag tks'kh ;kauh dk;kZy; vf/k{kd @ lgk¸¸kd vk;qDr] th@nf{k.k ;kal 11@06@2012 jksth fyfgysY;k i=kr vls uewn dsys vkgs dh lnjps vfiy nk[ky dj.;klkBh vFkZ lgk¸¸k u feGkY;keqGs vihy osGsr nk[ky dj.;kr vkys ukgh- ;ko:u vls funZ'kukl ;srs dh] lnj vihy nk[ky dj.;klkBh ;ksX; rs lgk¸¸k u feGkY;keqGs osGsr nk[ky gks Å 'kdys ukghr o ;ke/;s ek>k cstckcnkji.kk o drZO;krhy fu"dkGthi.kk fnlwu ;sr ukgh- lkscr Jh- ujfalag tks'kh ;kaps fnukad 11@06@2012 jksthps i= tksMr vkgs-Þ (Emphasis Supplied)
23. The factual position as emerging from above referred documents and circumstances on record clearly show that the conduct of the various officials of the Respondent No.1 is totally malafide. The following undisputed factual position and other reasons set out in subsequent paragraphs clearly show that action taken is malafide and taken for the purpose of depriving the Petitioner the opportunity to get considered in fair manner for promotion earlier to the post of Joint Law Officer and presently as Law Officer.
i. The above referred suits were disposed of in January-
2009, October- 2009 and December-2009. The said suits were pending in the Bombay City Civil Court, Mumbai.
Page 39 of 684th February, 2022 WPL-23789-2021-.DOC ii. The Petitioner was transferred to the Dindoshi branch of City Civil Court, Mumbai on 1st October, 2010.
iii. From 2009 till March 2018 no action whatsoever was taken against the Petitioner.
iv. For the first time seven Show Cause Notices were issued to the Petitioner in March 2018 alleging that the Petitioner had not taken steps to challenge the said decrees before the High Court. It was directed that within 7 days explanation be given. The Petitioner gave explanation on 28th March, 2018 as aforesaid.
v. The confidential reports of the Petitioner for the year 2016- 2017, 2017-2018, 2018-2019 and 2020-2021 show that she has been given remark "A" and as far as year 2019-2020 is concerned she has been given remark as "AA".
vi. For the period of March 2018 to March 2021, no action whatsoever was taken.
vii. In the meanwhile on 31st May, 2018, Petitioner was made Incharge Joint Law Officer and by order dated 28th December, 2020 the Petitioner was appointed as Joint Law Officer w.e.f. 1st June, 2018.
Page 40 of 684th February, 2022 WPL-23789-2021-.DOC There is some dispute raised by the Respondent Nos. 1 and 2 regarding whether such appointment is pending for confirmation. However, it is undisputed that the Petitioner is working in the promotional post of Joint Law Officer w.e.f. 1st June, 2008. This is done after issuance of seven Show Cause Notices against her in March-2018.
viii. On 19th June, 2018 First Appeals and Civil Application seeking delay condonation were filed by specifically taking contention that Petitioner was responsible for delay and the Petitioner in her capacity as Advocate signed the same. The contentions raised in said Civil Application are contrary to the contentions raised by the Petitioner in her reply to the Show Cause Notice and the Memorandum of Charges.
ix. The Memorandum of Charges dated 12 th March, 2021 were served on the Petitioner on 19th April, 2021.
x. The above referred undisputed factual position clearly show that authorities are using said alleged lacunas of the Petitioner as sword so that either she gives up her claim to the post of Law Officer or situation is created in such a manner that she is excluded from consideration in fair manner for Page 41 of 68 4th February, 2022 WPL-23789-2021-.DOC appointment to the post of Law Officer or in any case, show is made of existence of valid reasons for denial of promotion to the Petitioner.
We will hereinafter discuss other reasons for coming to the aforesaid conclusion.
24. There is substance in the contention of the Petitioner that the appeals were drafted by her in 2012 and were forwarded to the appellate section. The documentary evidence namely letter dated 11 th June, 2012 of Shri. Narsinh Joshi, Clerk of "G South Ward" substantiate the said contention. In any case, it is very important to note that when Petitioner has raised contention in the reply dated 28 th March, 2018 to said Show Cause Notices issued in March-2018 that she has in the year 2012 only drafted the appeals and forwarded to the appellate section, Civil Applications were filed in this Court in June-2018 in respective First Appeals challenging aforesaid decrees passed in the year 2018 by raising contentions that the Petitioner is responsible for the said delay and the Petitioner in her capacity as Joint Law Officer was asked to sign such Civil Applications clearly shows that the concerned officials of MCGM are acting in malafide manner. It is significant to note that the concerned officials of MCGM for reasons best known to them have created material against Page 42 of 68 4th February, 2022 WPL-23789-2021-.DOC the Petitioner and now capital is being made of the same by using said material to deny to the Petitioner her legitimate right. It is further significant to note that during said period the higher authority of MCGM has recorded in the confidential reports of various years that the Petitioner's work is very good/ excellent as set out hereinabove. Thus, for all these reasons, it is very clear that the said seven Show Cause Notices and the said Memorandum of Charges are illegal, unreasonable, issued malafidely and required to be quashed and set aside.
25. It is further important to note that the Petitioner at the relevant time i.e. in 2009 was working as Assistant Law Officer. Her work was to be supervised by Law Officer, Joint Law Officer and Deputy Law Officer. All these concerned officials were to supervise her work. If she would have really failed in her duty then certainly all these officials would have taken remedial action at the relevant time. The fact that all these higher officials have not taken any action substantiates one more contention raised on behalf of the Petitioner. Dr. Warunjikar, the learned Advocate appearing for the Petitioner relied on circular dated 29 th November, 2019 of MCGM (Exhibit-B Page 33 of Writ Petition (L) No. 23165 of 2021). As per said circular in personal cases or which are not concerning revenue of MCGM or there is no pecuniary loss to the MCGM then in such cases adverse decrees/orders be not challenged. Dr. Warunjikar submitted Page 43 of 68 4th February, 2022 WPL-23789-2021-.DOC that although the circular is of 2019 the MCGM was following the said policy for number of years. He submitted that therefore, although Petitioner has drafted Appeals, perhaps by considering the above aspects Appeals may not have been filed at the relevant time and now in view of mishap which took place at Kamla Mills Compound, malafidely action is being taken against the Petitioner. There is substance in the said contention and this is one more reason for coming to the conclusion that action taken against the Petitioner is malafide.
26. We are conscious of legal position as emerging from various judgments relied upon by Mr. Bukhari, the learned Senior Counsel appearing for the Respondent No.1 and 2. In Union of India & Anr. Vs. Kunisetty Satyanarayan (Supra). Supreme Court in paragraphs 13 to 16 held as follows:-
"13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramdesh Kumar Singh, Special Director v. Mohd. Ghulam Ghouse Ulagappa v. Divisional Commr., Mysore, State of U.P. vs. Brahm Datt Sharma etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of Page 44 of 68 4th February, 2022 WPL-23789-2021-.DOC action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
(Emphasis Supplied)
27. The above legal position as laid down by the Supreme Court clearly shows that in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without Page 45 of 68 4th February, 2022 WPL-23789-2021-.DOC jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.
28. We have already held that the factual position in this case clearly show that the said Show Cause Notices and Memorandum of Charges have been issued for the malafide purposes of depriving the Petitioner her claim for appointment to the post of Law Officer or fair consideration of her claim for said post. Thus, the observations of Supreme Court in Union of India & Anr Vs. Kunisetty Satyanarayan (supra) in paragraph 16 of the abovementioned case are squarely applicable to the present case.
29. Mr. Bukhari, learned Senior Counsel appearing for the Respondent Nos.1 and 2 submitted that the mishap took place at Kamla Mills Compound and therefore the Municipal Commissioner directed to prepare a list of similar illegal structures and status of legal proceedings, if any. During said enquiry, it transpired that the Petitioner has not taken steps challenging the judgment and decrees in above referred matters. He submitted that therefore there is delay from 2009 till 2018. However, it is to be noted that show cause notices were issued in the month of March, 2018. The Petitioner submitted reply to the same on 28th March 2018. The Petitioner was promoted as Joint Page 46 of 68 4th February, 2022 WPL-23789-2021-.DOC Law Officer w.e.f. 18th May 2018. The Petitioner got following remarks in her confidential reports:
Sr. No. Year Remarks
1 2016-2017 A
2 2017-2018 A
3 2018-2019 A
4 2019-2020 AA
5 2010-2021 A
30. It is further significant to note that although show cause notice is of March 2018 and the same was replied on 28th March, 2018, the memorandum of charges are dated 12th March 2021 and were served on the Petitioner on 19 th April 2021. Thus, it is clear that no action was taken for about 3 years after issuance of show cause notice. In the meanwhile, the Petitioner was granted promotion as well as her confidential report shows that her performance is very good/excellent and there is nothing adverse against her. Therefore, even if there is some explanation for delay of more than 9 years, although same is not satisfactory, there is no explanation whatsoever for further delay of 3 years and the factual position on record clearly show that the enquiry is used for the malafide purpose of denying the Petitioner opportunity to be considered in fair manner for the post of Law Officer of M.C.G.M.
31. As already set out hereinabove, in fact appeal along Page 47 of 68 4th February, 2022 WPL-23789-2021-.DOC with delay condonation application were filed in the above matters and contentions are raised that the Petitioner has admitted about non-filing of appeal. The relevant portion on page 128 of paragraph 22 of the Affidavit-in-Reply is reproduced hereinbelow for ready reference:
"Thus the Petitioner herself in the Appeal Memo admitting that she did not inform the progress of the matter passing of the Judgment and Decree dated 12.10.2009. It is also stated that due to lack of communication from Advocate (i.e. Petitioner herself) there is delay in filing Appeal and as such errant Official will be punished. Hereto annexed and marked as Exhibit "C" is the copy of the Appeal Memo alongwith the Civil Application for condonation of delay filed before the Hon'ble High Court. I further say that in one of the letter dated 5.6.2018 address by the Petitioner in clear terms she has agreed that the Appeal is drafted by the Council from the panel A. Hereto annexed and marked as Exhibit "D" is the copy of the letter address by the Petitioner. I say that Petitioner was transferred to the Dindoshi Court only on 1.10.2010 and the Judgment/Orders are passed in the month of October 2009. Therefore, she can't give excuses for not preparing Appeal and informing the Orders to the Higher Authority and discuss the matter."
(Emphasis Supplied) 31.1. The above contentions raised in affidavit-in-reply clearly show that the authorities of M.C.G.M. even before Page 48 of 68 4th February, 2022 WPL-23789-2021-.DOC conducting departmental enquiry have decided that the Petitioner is guilty. Thus, there is great substance in the Petitioner's contention that the said enquiry is being used for the malafide purpose of denying her right to be considered for the post of Law Officer in fair manner. The same is very clear from the Minutes of Meeting of Departmental Promotion Committee ("DPC") held on 13 th October 2021. A copy of Minutes of the said DPC meeting is annexed at Exhibit "A" to the affidavit-in-reply of Respondent Nos.1 and 2. The relevant portion of the Minutes of Meeting of said DPC meeting is reproduced hereinbelow for ready reference :
ßfo/kh [kkR;kdMwu izkIr >kysY;k vgokykuqlkj] mi dk;nk vf/kdkjh laoxkZP;k lsokT;s"Brk ;knhrhy vuq- dz- 1 ojhy Jhe- lankuflax la?kfe=k jkts'k] la;qDr dk;nk vf/kdkjh g;k dk;nk vf/kdkjh inkP;k vgZrk iw.kZ djrkr- rFkkfi] fo/kh [kkR;kdMwu izkIr >kysY;k pkSd'kh izek.ki=kuqlkj R;kaP;k fo:/n dz- lh,pvksbZ@MhbZ@4704@tu@4382@,lMh fn- 19-04-2021 vUo;s [kkR;karxZr pkSd'kh izyafcr vkgs- ;kLro] ifji=d dz- ,eih,e@2@5990 fn- 06-05-2019 vUo;s R;kaps izdj.k eksgksjcan ikdhVkr Bso.;kr ;sr vkgs-
vuq- dz- 2 ojhy Jh- dktjksGdj vuar ckiw] mi dk;nk vf/kdkjh gs dk;nk vf/kdkjh inkP;k fofgr vgZrk /kkj.k djhr vlwu rs dk;nk vf/kdkjh ;k Page 49 of 68 4th February, 2022 WPL-23789-2021-.DOC inkP;k inksUUkrhlkBh fu;r gksr vkgsr- rFkkfi] ifji=d dz- ,chlh@845 fn- 14-05-2021 vUo;s fn- 25-05-2004 jksthP;k lsokT;s"Brk fLFkrhuqlkj] Jh- dktjksGdj vuar ckiw] mi dk;nk vf/kdkjh gs lsokdfu"B vkgsr- ;kLro] Jh- dktjksGdj vuar ckiw] mi dk;nk vf/kdkjh g;kaps izdj.k dk;nk vf/kdkjh ;k inkojhy inksUurhlkBh fopkjkr ?ks.;kr vkys ukgh-
vuq- dz- 3 ojhy Jh- lqfuy dps'oj lksuko.ks] mi dk;nk vf/kdkjh gs [kqY;k oxkZps vlwu rs fn- 25- 05-2004 jksthP;k lsokT;s"Brk fLFkrhuqlkj lsokT;s"B vkgsr- Jh- lqfuy dps'oj lksuko.ks] mi dk;nk vf/kdkjh gs dk;nk vf/kdkjh ;k inklkBh vko';d vl.kkjh mi dk;nk vf/kdkjh ;k inkojhy 5 o"ksZ vgZdkjh lsok iw.kZ djrkr-
[kkR;kP;k pkSd'kh izek.ki= dz- ,yvks@,ybZ,@4122 fn- 15-06-2021 uqlkj rlsp fn-15-06-2021 jksthP;k lWi dk;Ziz.kkyh pkSd'kh izek.ki=kuqlkj Jh- lqfuy dps'oj lksuko.ks] mi dk;nk vf/kdkjh ;kaP;k fo:/n dks.krhgh U;k;ky;hu] QkStnkjh fdaok ykpyqpir izdj.k izyafcr ukgh- rlsp lnj vf/kdk&;kfo:/n izkFkfed vFkok [kkR;karxZr pkSd'kh izyafcr vFkok izLrkfoysyh ukgh rlsp rs f'k{kk/khu ukghr- R;kaP;k ekxhy ikp o"kkZaP;k xksiuh; vgokykaph izrokjh rikl.;kr vkyh vlrk] lnj inklkBh vko';d vlysyh izrokjh Jh- lqfuy dps'oj lksuko.ks] mi dk;nk vf/kdkjh gs /kkj.k djhr vkgsr- R;keqGs Page 50 of 68 4th February, 2022 WPL-23789-2021-.DOC R;kauk ^dk;nk vf/kdkjh* ;k fjDr vlysY;k inkoj lsokT;s"Brsuqlkj fuOoG rkRiqjR;k Lo:ikrhy inksUurhlkBh [kkyhy vVhlkis{k ik= Bjfo.;kr vkgs-Þ 31.2. The above Minutes of DPC meeting also clearly show that the said departmental enquiry is being used for denying the right of the Petitioner to be considered for the said post of Law Officer of M.C.G.M in fair manner.
31.3. It is also significant to note that the post of Law Officer is isolated post and therefore it is irrelevant whether the candidate being considered for the said post is belonging to the open category or reserved category. In the aforesaid minutes of D.P.C., it is specifically mentioned that Respondent No. 3 is from the open category. Thus, it is clear that the D.P.C. has taken into consideration the factors, which are neither relevant nor required to be taken into consideration.
31.4 It is also significant to note that the following remarks are found in the confidential reports of Respondent No. 3 and for ready reference we are also again reproducing the remarks in the confidential reports of the Petitioner:-
Sr. Year Remarks in the Remarks in the
Page 51 of 68
4th February, 2022
WPL-23789-2021-.DOC
No. Confidential Confidential Reports
Reports of the of the Petitioner
Respondent No.3.
1 2016-2017 A A
2 2017-2018 A A
3 2018-2019 B+ A
4 2019-2020 A AA
5 2010-2021 A A
If the remarks in the confidential reports of the Petitioner are compared with the remarks in the confidential reports of Respondent No.3, then it is clear that atleast from that angle, the Petitioner is superior than Respondent No. 3. Thus, it is clear that the case of the Petitioner is not considered in fair manner.
32. Mr. Bukhari, the learned Senior Counsel also submitted that in view of mishap which took place at Kamla Mill Compound, enquiry was conducted and action was taken against Petitioner and some other Assistant Law Officers at the relevant time. The factula aspects regarding said officers are not placed before us. In any case, in the facts and circumstances of this case we have found that case of the Petitioner not considered in fair manner. Thus, the said aspect is totally irrelevant.
33. Mr. Bukhari, learned Senior Counsel appearing for the Petitioner has also relied on paragraph 15 of the Page 52 of 68 4th February, 2022 WPL-23789-2021-.DOC affidavit-in-reply wherein the details of earlier enquiries and punishment awarded to the Petitioner are set out. The said details show that there are total 12 enquiries. Out of that 7 enquiries are dated 22nd February 1999, 7th September 2006, 9th March 2007, 30th April 2008, 15th October 2007, 8th November 2011 and 6th May 2013. All these enquiries are more than 7 years old, some of them are 15 to 20 years old. The punishments awarded to the Petitioner are withholding of annual increment, fine and some days are considered as absence without leave (without break in service) etc. As far as the enquiry dated 2nd May 2016 is concerned, as the allegations are not substantiated, the Petitioner was released from the charges.
As far as enquiry dated 22nd October 2018 is concerned, charge-sheet against the Petitioner was withdrawn and dropped. As far as enquiry dated 28th March 2018 is concerned, the Petitioner was awarded penalty of censure. The status of enquiry dated 26th June 2018 is not clear as in the column of punishment order, it is stated that "the employee has been informed to submit the statement." The enquiry dated 30th March 2021 is the present enquiry i.e. regarding non taking steps for filing appeals. Thus, it is clear that the enquiries on which Mr. Bukhari, learned Senior Counsel has heavily relied are either very old or where the Petitioner has been exonerated or very minor punishment is given to her. It is significant to note that during the last five years, her performance is unblemished Page 53 of 68 4th February, 2022 WPL-23789-2021-.DOC and remarks in her confidential reports show that her performance is either Very Good or Excellent. The factual position on record clearly show that in fact during the said period, she was promoted to the post of Joint Law Officer. The contention raised to the effect that in many enquiries, the Petitioner was held to be guilty and major punishments were awarded to her will be of no consequence in the year 2021 for the above reasons. In any case her case will have to be considered in fair manner by the D.P. C.
34. Therefore, the next issue will be whether the procedure of sealed cover procedure adopted by the Respondent Nos. 1 and 2 in case of the Petitioner while considering the same in D. P. C. is proper and fair.
35. Mr. Bukhari, the learned Senior Counsel appearing for the Petitioner has relied on following authorities for the purpose of pointing out relevance of sealed cover procedure:
i. Union of India Vs. K.V. Jankiraman & Ors. (supra) ii. Delhi Development Authority Vs. H.C. Khurana (supra) iii. Union of India Vs. Kewal Kumar (supra)
36. He submitted that the sealed cover procedure is to be resorted to after the charge-sheet is issued. He submitted Page 54 of 68 4th February, 2022 WPL-23789-2021-.DOC that an employee has no right to promotion and has only a right to be considered for promotion. He submitted that to qualify for promotion, the least that is expected of an employee is to have an unblemished record. He submitted that while considering an employee for promotion, entire service record of such employee has to be taken into consideration and if the promotion committee takes the penalty imposed earlier on the employee into consideration, and denies the promotion, to such an employee, such denial is not illegal and justified. He submitted that the sealed cover procedure is applicable in the cases where the disciplinary proceedings are pending. He submitted that when the decision is taken to initiate disciplinary proceedings against an employee, such employee cannot be given promotion unless exonerated.
37. We have already examined the merits regarding the disciplinary proceedings initiated against the Petitioner with respect to non-filing of appeals in above referred suits. We have given reasons for coming to the conclusion that the said action is malafide. As we have come to the said conclusion, the various judgments on which Mr. Bukhari has relied regarding the circumstances, in which the sealed cover procedure is to be resorted to, will not be relevant. There cannot be any quarrel regarding his submission that entire service record of the Petitioner will have to be taken into consideration by D.P.C. It is undisputed that the Petitioner's service record is required to be taken into consideration by the D.P.C. We are only accepting Page 55 of 68 4th February, 2022 WPL-23789-2021-.DOC submission of the Petitioner that the Petitioner's case be fairly considered for the purpose of promotion to the post of Law Officer. From that angle only, we have pointed out in earlier part of this judgment, the remarks in her confidential report for last about five years and other relevant factors, but it is for the D.P.C. to take into consideration all the factors in fair manner and to take appropriate decision and/or to make an appropriate recommendation. As we have come to the conclusion that the show cause notices/chargesheet issued against the Petitioner is malafide exercise of the power and as we are setting aside the same it is obvious that the said procedure of sealed cover followed in the case of the Petitioner is not required to be followed and is totally illegal, unfair and in any case not necessary.
38. Last issue required to be examined is regarding legality and validity of impugned order dated 7 th October 2021 by which Respondent No.3 has been appointed as Incharge Law Officer. The said order dated 7th October 2021 is reproduced hereinbelow for ready reference:.
c`gUeqacbZ egkuxjikfydk lkekU; iz'kklu foHkkx dk;kZy;hu vkns'k dz- ,eih,l@2527 ¼999½ fn- 07-10-2021 ek- egkuxjikfydk vk;qDr ;kaP;k dz- ,ethlh@,Q@5302 fn-04- 10-2021 jksthP;k eatwjhP;k vuq"kaxkus] Jh- lqfuy dps'oj lksuo.ks] mi dk;nk vf/kdkjh g;kaP;kdMs] R;kaP;k LorP;k inkP;k dkekO;frfjDr ^dk;nk vf/kdkjh* inkpk vfrfjDr dk;ZHkkj vuqKs; dk;Zhkkj HkR;klg iq<hy vkns'k izkIr gksbZi;Zar lksifo.;kr ;sr vkgs-
Page 56 of 684th February, 2022 WPL-23789-2021-.DOC lnj dk;kZy;hu vkns'k fn- 07-10-2021 iklwu fdaok R;kauh R;k inkpk dk;Zhkkj fLdkjY;kP;k fnukadkiklwu ykxw gksbZy-
lgh@&fn-06-10-2021 lgh@&fn-06-10-2021 lgh@&fn-06-10-2021 ¼Jhe- la/;k OgVdj½ ¼Jh- fefyu lkaor½ ¼MkW- latho dqekj½ izeq[k deZpkjh vf/kdkjh lg vk;qDr lk-iz- ½ vfr- vk;qDr ¼'kgj½ (Emphasis supplied)
39. Mr. Bukhari, learned Senior Counsel appearing for Respondent Nos.1 and 2 to substantiate his contention that the Commissioner has got executive power to issue impugned order dated 7th October 2021 relied on Section 64(3) of the said Act. He relied on Section 68 regarding delegation of power. In that context, he relied on Rule 52 of the Service Rules, 1989 of Respondent No.1. However, it is the contention of Mr. Anturkar, learned Senior Counsel that the Commissioner has no power and power vests with the Municipal Corporation to appoint employee even as "In- charge". He contended that the power to issue impugned order dated 7th October 2021 is of Municipal Corporation. He relied on Section 85A of the said Act.
40. For appreciating the submission of Mr. Bukhari, learned Senior Counsel, it is necessary to set out the provisions on which he is relying
(i) The relevant portion of Section 64 is as follows:
"64. Functions of the several municipal authorities (1) .......
(2) .......Page 57 of 68
4th February, 2022 WPL-23789-2021-.DOC (3) Subject, whenever it is in this Act expressly so directed, to the approval or sanction of the Corporation or the Standing Committee or the Improvements Committee, or the Education Committee and subject also to all other restrictions, limitations and conditions imposed by this Act, the entire executive power 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 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, other than the municipal secretary and the 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 the service of the said officers and servants and their pay, privileges and allowances;
(c) perform the duties and exercise the powers imposed or conferred upon the General Manager by this Act in his absence or on failure by him to perform or exercise the same;"
(3A) ........
(4) ........
(ii) "68. Delegation of powers of Municipal Authorities Any of the powers, duties and functions conferred upon, assigned to or vested in the Corporation , the [Mayor,] Commissioner or the General Manager, Brihan Mumbai Electric Supply and Transport Undertaking, by or under this Act, may be exercised, performed or discharged by any municipal officer to whom such power, duties or functions are delegated by the concerned authority by general or special Page 58 of 68 4th February, 2022 WPL-23789-2021-.DOC order made, from time to time, in this behalf.]"
(Emphasis supplied)
(iii) Rule 52 of Service Rules, 1989 of Respondent No.1- Corporation:
"52. Combination of appointments:
The Municipal Commissioner or the Standing Committee as the case may be, may appoint a Corporation employee under his or its administrative control to hold substantively, as a temporary measure or to officiate in two or more independent posts at one time. In such cases his pay and allowances are regulated as follows:-
(1) The highest pay to which he would be entitled if his appointment to one of the posts stood along may to drawn on account of his tenure of the post.
(2) For each other post he draws such reasonable additional pay, special pay, in on case exceeding 20 percent of the presumptive pay of the post as the Municipal Commissioner or Standing Committee as the case may be, may fix.
Provided further that no additional pay/special pay shall be admissible to a Corporation employee whose scale of pay is equivalent to that attached to any of the statutory post (s).
(3) If a Compensatory allowance is attached to one or more of the posts, he draws such compensatory allowance as the Municipal Commissioner or the Standing Committee as the case may be, may fix.
Provided that such allowance shall not exceed the total of compensatory allowance attached to all the posts; and Page 59 of 68 4th February, 2022 WPL-23789-2021-.DOC (4) During the absence on leave of honorary teaching staff in a Corporation Medical College, the Municipal Commissioner may appoint anyone of the staff of the Corporation Hospitals and the colleges to do the duties of the absentee in additional to his own and allow him to draw such extra remuneration as he may deem proper. This does not, however, apply to the post of part-time teaching staff on the schedule of the Corporation Medical Colleges when they are held by whole time Corporation Officers and when they take leave not exceeding one month under the Corporation Leave Regulations. During this period of leave, they may draw the Honorarium provided the Dean certifies that they have completed subsequently to his satisfaction on the teaching work and lectures allotted to them during the said period of leave.
Honorarium is not forfeited during the college vacation in the case of honorary Medical Teaching Staff who have no duties at the associated Corporation Hospitals.
Note: (a) When Corporation employee is not in a position to discharge adequately and with full responsibility the duties of the second post, he shall be appointed merely to be in charge of the current duties of the second post and his aggregate pay shall not exceed the pay draw in respect of the first post plus Additional Pay/Special Pay at a rate not exceeding 1/5th of the presumptive pay of the second post.
Provided that additional pay/Special Pay shall be admissible to a Corporation employee for looking after the duties of the second post in addition to his own, for a period of less than 16 days.
Provided further that no additional pay/Special Pay shall be admissible to a Corporation employee whose scale of pay is equivalent to that Page 60 of 68 4th February, 2022 WPL-23789-2021-.DOC attached to any of the statutory post (s).
(b) A Corporation employee appointed to hold two posts of which one is subordinate to the other is not save in exceptional Circumstances, entitled to any additional remuneration under Regulation 52(2) as it is undesirable that a Corporation employee doing the work of his subordinate in addition to his own should draw any extra allowance for that work."
(Emphasis supplied)
41. A perusal of Section 64(3) clearly shows that entire executive power for the purpose of carrying out the provisions of the said Act vests in the Commissioner subject to limitations set out in Section 64. Assuming that the power to appoint a full-fledged employee holding a substantive post to hold charge of another post for very limited period vests with the Corporation, Section 68 of the said Act is relevant and the same is regarding delegations of powers inter-alia of Corporation. A perusal of Rule 52 of Service Rules, 1989 clearly shows that Municipal Commissioner as delegate of Municipal Corporation has power to appoint a Corporation employee under his administrative control to hold substantively, as a temporary measure or to officiate in two or more independent posts at one time. Thus, there is considerable force in the submission of Mr. Bukhari that appointing Respondent No.3 as Incharge Law Officer by impugned order dated 7 th October 2021 is within the executive power of the Commissioner. He is also right in relying on Section 68 regarding power of delegation and to submit that Rule 52 is Page 61 of 68 4th February, 2022 WPL-23789-2021-.DOC such delegation. In any case looking from any angle, it cannot be said that the Municipal Commissioner has no power to issue the impugned order dated 7th October 2021.
42. To substantiate his contention, Mr. Bukhari has relied on the judgment in the matter of Shashikant Anant Kale (supra). In that matter, a Co-ordinate Bench of this Court was concerned with challenge to the order dated 25 th November 2020 issued by the Joint Municipal Commissioner as well as Municipal Commissioner of the Respondent No.1, by which, additional charge of Chief Fire Officer was withdrawn w.e.f. 25th November 2020 from the Petitioner who had filed the said Writ Petition. It was the contention of the Petitioner in said Writ Petition that the Commissioner has no such power. The MCGM has relied on Section 64(3)(b) of the said Act to contend that the Municipal Commissioner has the power. The Co-ordinate Bench of this Court in paragraphs 25 and 26 discussed the power of the Commissioner in the light of Section 64(3) (b) of the said Act. The said paragraphs are reproduced hereinbelow for ready reference:
"25. From the impugned order, it is clear that the Petitioner had been given additional charge as Chief Fire Officer on 10th August 2020 and which additional charge was withdrawn with effect from 25th November 2020. The additional charge had been given by the Municipal Commissioner which was by the impugned order withdrawn by the Municipal Commissioner. It is thus, necessary to see whether the Municipal Commissioner had in fact power to withdraw such additional charge from the Page 62 of 68 4th February, 2022 WPL-23789-2021-.DOC Petitioner. Under Section 64 of the Act the function of several Municipal Authorities have been provided. Under Sub-Section 3 of Section 64 the entire executive power for the purpose of carrying out the provisions of this Act has been vested in the Commissioner. In Clause (b) of Sub-Section 3 of Section 64, it is provided as under:-
"64(3)(b) prescribe the duties of, and exercise supervision and control over, the acts and proceedings of all municipal officers and servants, other than the municipal secretary and the 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 the service of the said officers and servants and their pay, privileges and allowances"
26. Thus, it is clear from this provision that the Municipal Commissioner exerts the power to carry out the provisions of the Act including prescribing the duties and exercise of supervision and control over the acts and proceedings of all municipal officers and servants, other than the municipal secretary and the municipal officers and servants immediately subordinate to him. Thus, the Municipal Commissioner would have the power to prescribe the duties of the Municipal Officers and servants which included the Petitioner and which would further include conferring additional charge of Chief Fire Officer to the Petitioner such as in the present case. This would clearly be within the power to be exercised by the Municipal Commissioner and likewise the withdrawal/termination of the Page 63 of 68 4th February, 2022 WPL-23789-2021-.DOC additional charge of Chief Fire Officer given to the Petitioner would be within the powers of the Municipal Commissioner."
(Emphasis supplied)
43. We are in respectful agreement with the aforesaid observations of the Co-ordinate Bench. Thus the Municipal Corporation has power to issue order dated 7th October 2021 appointing Respondent No.3 as Incharge Law Officer.
44. Mr. Anturkar, learned Senior Counsel appearing for the Petitioner in support of his submission that the power to issue the impugned order dated 7 th October, 2021 vests with the Municipal Corporation has relied on Section 85A of the said Act. Same is reproduced hereinbelow:
"[85A. Temporary appointment Notwithstanding anything contained in the foregoing provisions, when a vacancy occurs in any of the posts referred to in sub-section (1) of section 80B the corporation 2[or 3[the Brihan Mumbai Electric supply and Transport Committee,] as the case may be] may, pending the appointment of a person in accordance with the provision 4[* * *] of the said section, appoint any person to be fill such vacancy on a monthly salary not exceeding the maximum salary of the post: Provided that no appointment under this section shall extend beyond, or be made after a lapse of, six months from the date on which the vacancy occurs.]"
Section 85A is regarding appointment of a person to fill such vacancy for temporary period. In the present case, we are concerned with a Municipal employee, who is already Page 64 of 68 4th February, 2022 WPL-23789-2021-.DOC in the employment of the Corporation and to whom charge of some other post is to be given as stop-gap arrangement. Section 85A is regarding temporary appointment of a person on a monthly salary. Thus Section 85A will have no application, as far as the present case is concerned.
45. Mr. Bukhari, the learned Senior Counsel has relied on judgment of the Supreme Court in case of Ramakant Shripad Sinai Advapalkar Vs. Union of India & Ors ( Supra). He submitted that appointing Respondent No.3 as Incharge Law Officer by order dated 7 th October, 2021 is within executive power of the Commissioner. He submitted that Respondent No.3 continues to hold the substantive post, which is lower post and only discharges the duty of the higher post as stop-gap arrangement. He relied on the judgment of Ramakant Shripad Sinai Advapalkar Vs. Union of India & Ors. (supra) and particularly paragraph nos. 5 and 9 of the same. The said paragraphs are reproduced hereinbelow for ready reference:
"5. The arrangements contemplated by this order plainly does not amount to a promotion of the appellant to the post of Treasurer. The distinction between a situation where a Government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion. In such a case he does not get the salary of the higher post; but gets only that in service parlance is called a "charge allowance". Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. The person continues to Page 65 of 68 4th February, 2022 WPL-23789-2021-.DOC hold his substantive lower post and only discharges the duties of the higher post essentially as a stop-gap arrangement.
"9. The third contention is that appellant's 'in charge' arrangements in the higher post had continued for so long a period that a determination of equivalence on the basis of his lower substantive post would become arbitrary. This contention ignores the fact that an 'in charge' arrangement is not a recognition of or is necessarily based on seniority and that, therefore, no rights, equities or expectations could be built upon it. The third contention is also unmeritorious."
(Emphasis supplied)
46. There cannot be any quarrel about the proposition that there is distinction between a situation where a Government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post. It is very clear that in such a situation, the person continues to hold his substantive lower post and only discharges the duties of the higher post essentially as a stop-gap arrangement. However, it is also settled legal position that all state actions must be fair and reasonable. It is obvious that one of the factor taken into consideration while appointing Respondent No. 3 as Incharge Law Officer, although the Petitioner is senior most in the Law Department of M.C.G.M., is the pending enquiry against the Petitioner. Therefore although we are not setting aside order dated 7th October 2021 appointing Respondent No.3 as Incharge Law Officer, we are continuing the said order for a period of two months and directing Respondent Nos.1 and 2 to take appropriate decision afresh regarding Page 66 of 68 4th February, 2022 WPL-23789-2021-.DOC appointment of Incharge Law Officer. This is necessary since as a result of our above referred discussion, we are setting aside said seven Show Cause Notices and Memorandum of Charges.
47. In view of above discussion, we pass the following order:-
ORDER
(a) Seven Show Cause Notices issued in the month of March, 2018, issued to the Petitioner (Exhibit "D" to Writ Petition (Lodging) No. 23165 of 2021) and Memorandum of Charges dated 12th March 2021 (Exhibit-"I" to Writ Petition (L) No. 23165 of 2021) are quashed and set aside.
(b) It is directed that the Petitioner be considered to the post of Law Officer of Respondent No.1-M.C.G.M. without getting influenced by the said seven Show Cause Notices or Memorandum of Charges as the same are quashed and set aside.
(c) Order dated 7th October, 2021, (Exhibit "A" to Writ Petition (Lodging) No. 23789 of 2021) appointing Respondent No.3 as Incharge Law Officer is continued for a period of two months.Page 67 of 68
4th February, 2022 WPL-23789-2021-.DOC
(d) Respondent No.2- Municipal Commissioner is directed to take appropriate decision afresh regarding appointment of the Incharge Law Officer within a period of two months from today.
(e) Both the Writ Petitions are disposed of in aforesaid terms with no order as to costs.
(Madhav J. Jamdar, J) (Prasanna B. Varale, J.) Page 68 of 68 4th February, 2022