Bombay High Court
Shashikala Vasant Baviskar And Ors. vs Municipal Corporation For City Of ... on 24 September, 2004
Equivalent citations: 2005(2)MHLJ1086
Author: A.P. Deshpande
Bench: A.P. Deshpande, M.G. Gaikwad
JUDGMENT A.P. Deshpande, J.
1. Heard learned Advocates for the respective parties.
2. At the request of the learned counsel for the petitioner, leave to delete petitioner No. 23 is granted as she has already filed separate Writ Petition bearing No. 4581/2004.
3. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties.
4. The Counsel for the respondents waive service for the respective respondent.
5. As a common question of law and fact is involved in both the petitions, they are heard together and are being disposed of by this common judgment.
6. All the petitioners are Primary Teachers. The petitioners initially were, admittedly, the employees of Zilla Parishad, Jalgaon, and were working as Teachers in Primary Schools. As a result of extension of the area of operation of the respondents/Municipal Corporation (the then Municipal Council), Jalgaon,'' various schools which were under the administration and control of Zilla Parishad, were brought under the control of the Municipal Council/Corporation. Vide notification dated 30th October 1987, the Government of Maharashtra was pleased to declare that the local areas comprising of the revenue villages of Khedi (Bk.), Mehrun and Pimprale were ceased to be villages and formed part of the area of the Municipal Council/Corporation. It is not in dispute that the petitioners' seniority while being in the employment of the Zilla Parishad, was fixed on the basis of their respective dates of appointments. The main question involved in the present petition is as to how their seniority would be reckoned on their transfer from the Zilla Parishad schools to the schools administered by the Municipal Council/Corporation.
7. The petitioners heavily rely upon a Government Resolution dated 15th December 1984 which deals with the issue of preparation of the seniority list in regard to such of the Primary Teachers whose services are transferred to Municipal Council/Corporation from the Zilla Parishad as a result of extension of the area of operation of the Council/Corporation. The said Government Resolution, in the first place, lays down the criteria which ought to be followed while transferring the Primary School Teacher from Zilla Parishad to Municipal Council/Corporation. If freely translated, the criteria reads thus :
(i) According to seniority in Zilla Parishad service; (ii) If the transferred employees own immovable property in the extended area; (iii) If the native place or place of residence of the employee falls within the extended area and such an entry is taken in the service book; (iv) If on the date on which the notification in regard to the extension of the area is published, the petitioners were working in the schools located in the extended area and the length of service put in at the said place; (v) Regard be had to the percentage of reservation and if in the services of the Municipal Council/Corporation, the prescribed percentage is not fulfilled, Teachers be transferred from Zilla Parishad to the Council/Corporation with a view to fill in the percentage or reservation;
It is undisputed that all the petitioners were complying with, at least, one of the conditions from and out of the five- norms enumerated hereinabove viz. Condition No. 4. All the petitioners were working on the date on which the notification came to be published by the Government, extending the area of operation of the Municipal Council/Corporation, in schools located in the extended area of the Council/Corporation. It may not be out of place to state that some of the petitioners satisfy some other conditions, as well. In the second place, the Government Resolution provides in Clause 6 thereof thus :
No candidate who does not comply with any of the above referred norms, but join the service of the Municipal Council/Corporation by their own volition or at their own request, such Teachers shall not be entitled to have, their services rendered under the Zilla Parishad, to be counted for the purpose of seniority in the service of the Municipal Council/Corporation and such an undertaking in writing be obtained from such Teachers before effecting the transfer.
The next paragraph makes it amply clear that if the Primary Teachers are transferred from Zilla Parishad to Municipal Council/Corporation and who satisfy any of the conditions/norms laid down in the Resolution, then they would be entitled to have their earlier/past service counted for the purpose of determination of the seniority in the Municipal Council/Corporation; whereas such of the Teachers who are transferred voluntarily, and/or on personal request, such Teachers would not be entitled to claim seniority by counting the past service rendered under the Zilla Parishad.
8. It is the case of the petitioners that as the petitioners were admittedly satisfying Condition No. 4, inasmuch as, as all the petitioners were working as Primary School Teachers in schools situated within the extended area of operation of the Municipal Council/Corporation, and as none of the petitioners had requested for grant of such a transfer, and as none of them had given in writing that they are willing to forego their past service, for the purpose of seniority, their transfers need to be construed as on account of administrative exigency and they would be entitled to have their earlier service counted for the purpose of determination of seniority vis-a-vis employees working in Municipal Council/Corporation.
9. Per contra, learned Counsel appearing for the respondent/Municipal Corporation of the city of Jalgaon, has contended that all the petitioners had asked for the transfer from the Zilla Parishad to the Municipal Council/Corporation and hence the petitioners' transfer need to be construed as 'request transfer' and hence, the petitioners cannot claim the benefit of earlier service rendered by them under the Zilla Parishad. To bring home the point, he has placed reliance on an order issued by the Chief Executive Officer of the Zilla Parishad, Jalgaon, dated 1-7-1996. It is mentioned in the said order, that as a result of extension of the area of operation of the Municipal Council, the administration and control of Zilla Parishad Primary Schools has been handed over to the Municipal Council with effect from 1-7-1996. It further mentions that such of the Primary School Teachers who were actually working in Zilla Parishad Primary Schools on 1-11-1993, located in the extended area, their services are to be transferred to Jalgaon Municipal Corporation. Along with the said order, an option form was served on the concerned Teachers and their options were called for, as to whether they want to continue in the employment of Zilla Parishad or whether they choose to have their services transferred to the Municipal Council/Corporation.
10. The learned counsel for the Municipal Council, relied on Clause 9 of the option letter, which was issued by the erstwhile employer of the petitioners, viz. the Zilla Parishad. The said clause, calls upon the primary school teachers, to furnish information as to whether their posting in the school, located within the extended area of the council, was on account of administrative reason or was it at the request of the concerned employee. From the option exercised by the employees which is sought to be read in the light of the information furnished by the employee against Clause 9, it is contended that the transfers are request transfers and hence, the petitioners are not entitled to have their past service under the Zilla Parishad taken into account for determination of seniority.
11. We have considered the submissions made by the respective advocates for the parties, in the light of the Govt. Resolution dated 15th December, 1984. The thrust of the Govt. Resolution is, that if the transfer of the employee is a request transfer from the Zilla Parishad to Municipal Council, then and then alone, such an employee would be deprived of his past service, to be counted for the purpose of seniority in the employment of the Municipal Council/Corporation. Exercising of an option, can in no case, constitute a request to transfer. If the employer gives an option to an employee and if the employee opts for a particular thing, it cannot be equated with a request made by the employee, seeking transfer. At any rate, the relevance of the request or otherwise, is only when the employee came to be transferred from the services of the Zilla Parishad to Municipal Council. It is wholly irrelevant as to how and by what method, the employees/petitioners happen to come in the area, which at a latter point of time, came to be included in the extended area of the Council/Corporation. Even if an employee, while being in service of the Zilla Parishad, came to be transferred at his request, in one of the schools in the erstwhile area of operation of the Zilla Parishad, which lateron formed part of the extended area of the Municipal Council, the same will be totally irrelevant factor, to determine as to whether such an employee would be entitled to have his past service under the Zilla Parishad, counted for the purpose of seniority, on his transfer to Municipal Council/Corporation.
12. The Govt. Resolution dated 15th December 1984, did provide for certain norms for the Zilla Parishad, to be followed while effecting the transfer and such of the employees, who fulfilled even one of the norms, was liable to be picked up for transfer by the Zilla Parishad to the Municipal Council and the petitioners did satisfy Condition No. 4, i.e. all the petitioners were working in the schools located in the extended area of operation of the Municipal Council and as such, could have been transferred by the Zilla Parishad. We may hasten to add that some of the petitioners comply with more than one norm, but, we do not feel it necessary to deal with the said situation and we are of the clear view that satisfying one of the norm, is good enough compliance of the Govt. Resolution to transfer an employee by the Zilla Parishad and such a transfer cannot constitute a request transfer and deprive the employee of his past service. It is an admitted position that, from none of the present petitioners, the Zilla Parishad and/or Municipal Council, had obtained in writing, an undertaking that, the petitioners are ready and willing to forego the past service, as is contemplated to be obtained, from an employee, who seeks voluntary or request transfer. We have no doubt that the request made by the employee, for seeking transfer from Zilla Parishad to the Municipal Council, could alone be a factor that could disentitled such an employee from claiming the benefit of the past service. Any request made by an employee, prior in point of time to the Zilla Parishad, to post him in one of the school in the area, which thereafter formed part of the extended area of operation of the Municipal Council, will be wholly irrelevant consideration to determine his seniority in the service of Municipal Council/Corporation.
13. The learned counsel for the respondent/corporation, has placed reliance on a judgment of the Division Bench of this Court, reported in 2000(4) Mh.L.J. 422. The said judgment is rendered in somewhat identical facts. In the facts of the said case the Court considered the Govt. Resolution dated 9-9-1986, in the matter of fixation of seniority. In the facts of the said case, the Court held that when an employee of the Zilla Parishad, joins the service under the Municipal Council, willingly, voluntarily and with prior consent, such an employee will not be entitled to have his earlier service counted. The reasoning adopted by the Division Bench is, that such of the transfers, which are effected in due course of administration, cannot be equated with transfers effected on request or by volition of the employee. The Court proceeded to hold that benefit of prior service cannot be granted in case of voluntarily transferred employees. We are in agreement with the view taken by the Division Bench. In the facts of the present case, as we are clearly of the view that as the petitioners, barring petitioner No. 24, were, transferred in the course of administration, because of the exigency, their transfers cannot be termed as request transfer or a transfer effected at request of the employee and hence, all the petitioners, barring petitioner No. 24, Smt. Pratibha Vasant Patil, are entitled to have their past service counted, while determining their seniority in the employment of the Municipal Council/Corporation.
14. So far as the petitioner No. 24 is concerned, the respondent-corporation, has placed on record the documents, which clearly indicate that the said petitioner was transferred from Zilla Parishad to Municipal Council/Corporation, solely because she had made a request and not because the Zilla Parishad wanted her to be transferred, on compliance of the norms, laid down in the Govt. Resolution. Having realized that the petitioner No. 24 has been transferred from the Zilla Parishad to Municipal Council/Corporation at her request, the learned counsel for the Petitioner, does not press the claim of petitioner No. 24 in this petition. Hence, the prayer made by petitioner No. 24, needs to be rejected as not pressed.
15. Having held that all the petitioners, barring petitioner No. 24, are entitled to have their past service counted for the purpose of seniority, vis-a-vis employees of the Municipal Council, it needs to be stated that the Municipal Council/Corporation, while preparing the seniority list, has treated the present petitioners, who are transferred employees as a separate class, and all the petitioners are denied the benefit of past service, rendered by them under the Zilla Parishad. As a result of this, the problem that is now faced by the petitioners is that, on account of reduction of workload in the primary schools administered and managed by the Corporation, number of primary school teachers are rendered excess/surplus. In this view of the matter, the Corporation has issued orders of transfer dated 14-6-2004, seeking to transfer all the petitioners from its establishment to the erstwhile employer viz. the Zilla Parishad. These orders of transfers dated 14-6-2004, are impugned in the present petition. In the submission of the petitioners, there is no justification for the respondent Municipal Corporation, to treat the petitioners as a separate class for all time to come and to subject them to a further transfer to the erstwhile employment. In the submission of the petitioners, on account of their transfer from Zilla Parishad to Municipal Council/Corporation, as a consequence of extension of the area of operation of the Municipal Council/Corporation, they have ceased to have any relation with the erstwhile employer and they are entitled to be absorbed in the services of the Corporation and on such absorption, they are also entitled to all benefits under the service rules governing the employees of the Corporation. The petitioners' objections are that, in the first place, there are many primary school teachers, in the employment of the Municipal Corporation, who are junior to the petitioners and hence, the petitioners cannot be picked up for transfer to the services of the Zilla Parishad and in the second place, it is submitted that the transferred employees cannot be treated as a separate class and need to be treated as employees of the Corporation, once they are absorbed on transfer from the Zilla Parishad. This discriminatory treatment resulting from the impugned orders of transfers, is attacked on that ground.
16. We see merit in the submission made by the learned counsel for the petitioners. Obviously, once the petitioners are absorbed in the employment of the Municipal Council/Corporation, on extension of the area of operation of the Municipal Council/Corporation, they would stand at par with the employees of the Municipal Council/Corporation and cannot be given a differential treatment. We have already held that the petitioners are entitled to have the past service counted for the purpose of determination of seniority in the employment of the Municipal Council/Corporation and in this view of the matter, the petitioners cannot be picked up as a class and consequently subjected to a further transfer. The impugned transfers are not regulated by any law, atleast, we are not shown any provision, which permits such a transfer, that too, without the employee agreeing to the same. If and in case, such a course is to be adopted, with a view to protect services of the employees, then, the said exercise has to be carried out on the basis of some definite norms and principles. The test applied by the Corporation appears to be that the junior-most employees should be transferred. We do not, per se, find any illegality in the said decision. But, if other municipal council employees are junior to the present petitioners, and we have no doubt, that the present petitioners are senior to many municipal council employees, then, the municipal council employees, who are junior, need to be picked up for being transferred and the petitioners cannot be singled out as a class, for the reason that they happened to be erstwhile in the employment of the Zilla Parishad. We find that the orders impugned in the present petitions are unsustainable in law as the petitioners are not the junior-most employees.
17. It may not be out of place to bring on record, the fact that during the pendency of the petitions, by an interim order dated 1-7-2004, this Court had directed the parties to maintain status-quo and the Corporation was restrained from taking any adverse action against the petitioners. Some of the petitioners were relieved, but none of the petitioners had joined the services under the Zilla Parishad.
18. In the result, the writ petitions are allowed. The impugned orders of transfer are quashed and set aside. However, Writ Petition No. 3993 of 2004, to the extent it relates to petitioner No. 24, namely, Smt. Pratibha Vasant Patil, stands dismissed as not pressed.
19. Rule made absolute in the above terms.
There shall be no order as to costs.