The State of Maharashtra is vested with the power to specify a larger urban area’ of a municipal corporation under Section 3(1) of the Maharashtra Municipal Corporation Act, 1949 (in short, “MMC Act”). [(1) The Corporation for every City constituted under this Act existing on the date of coming into force of the Maharashtra Municipal Corporations and Municipal Councils (Amendment) Act, 1994, specified as a larger urban area in the notification issued in respect thereof under clause (2) of Article 243-Q of the Constitution of India, shall be deemed to be a duly constituted Municipal Corporation for the larger urban area so specified forming a City, known by the name “The Municipal Corporation of the City of….”; xxx xxx xxx (3) [(a)Subject to the provisions of sub-section (2), the State Government] may also from time to time after consultation with the Corporation by notification in the Official Gazette, alter the limits specified for any larger urban area under sub-section (1) or sub-section (2) so as to include therein, or to exclude therefrom, such area as is specified in the notification.
They too were given option for their merger in the PMC. It may be relevant to mention at this stage that with a view to regulate the conditions of service of employees who are merged from the Zilla Parishad to Municipalities, the State Government had passed a Resolution (hereinafter “GR”) dated 13.08.1990, the relevant part whereof reads as follows: – “xxx xxx xxx government was considering whether to consider service provided for Zilla Parishad by said teachers should be considered for pay fixing, seniority, retirement benefit, etc.in Municipal Council/Municipal Corporation education department. Despite the seeming clarity on this point, there arose a dispute in respect to fixation of inter se seniority between the teachers who were initially recruited in the ZP and were later on absorbed into the PMC, as opposed to the primary teachers who had been part of the services of the PMC from the very beginning.
A draft seniority list was circulated by the PMC which proposed to assign seniority to Respondent Nos.
A conjoint reading of Section 493 which provides for transitory provisions read with Clause 5 of Appendix IV clearly indicates that the service rendered by the officers and servants before in the employment of the Municipality or the local authority immediately before the appended date shall be the officers and servants employed by the Corporation under the said Act and the services rendered by such officers and servants before the appointed date shall be deemed to be service rendered in the service of the Corporation.
It is not the case of the respondent no.1 or respondent no.3 that service of any of these petitioners were discontinued by the respondent no.1 under second proviso to Clause 5 of Appendix IV on the ground of not being suitable to the requirements of the municipal service or on the ground that their services were not necessary for the respondent no.1 – Corporation. 1 by considering the date of their transfer in the schools run by the respondent no.1 as the date of appointment is totally illegal and contrary to Section 493 read with Clause S(c) of Appendix IV thereto. ”
5 to 79 in ZP towards their seniority after absorption into the PMC, has now filed this appeal.
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5 to 79 were given a choice to either seek transfer into the PMC or to continue with their services in the schools run by the ZP. Section 493 of the MMC Act read with Clause 5(c) of Appendix (IV) relied upon by the High Court will be attracted only in a case of newly constituted Municipality. Shri Navare explained that the legislative intent can be discerned from the fact that a provision similar to the first proviso to Clause 5(c) of Appendix IV, has not been added to Section 3(3)(b) of the MMC Act. Learned counsel for Respondent No 1, the PMC, also supported the cause of the Appellant and urged that in the event of granting the benefit of past service to Respondent Nos. (ii) The Government Resolution dated 13.08.1990, in no uncertain terms, provides that on inclusion of the area of a ZP within the limits of Municipal Corporation, the transferred employees shall be entitled to the benefit of their past service towards fixation of pay, seniority and retiral benefits etc. xxx xxx xxx” (iv) Neither the Appellant nor the PMC invoked Section 3(3)(b) of MMC Act before the High Court and their reliance upon this provision has been made for the first time before this Court only. In our considered view, the following two questions need to be determined to resolve the controversy: (I) Whether the inter se seniority of the primary teachers who were appointed in the ZP and were later on absorbed into PMC, vis–vis those primary teachers who directly joined PMC, is to be determined in accordance with Section 3(3)(b) of the MMC Act?; (II) Alternatively, should such inter se seniority be determined in accordance with Section 493 read with Clause 5I of Appendix IV of the MMC Act?
Article 243Q(1) mandates that, in every State, the following would be constituted: (a) A nagar panchayat, for a transitional area, namely, an area in transition from rural to urban area; (b) a municipal council for a smaller urban area; and (c) a municipal corporation for a larger urban area. It is in this context that Clause (b) of sub-section (3) provides that when an area is included within the limits of the larger urban area’, any appointments, notifications, notices, taxes, orders, schemes, licenses, permissions, rules, by-laws issued, imposed or granted, under the MMC Act or any other law which is for the time being in force in the larger urban area shall, notwithstanding anything contained in any other law, apply to and be in force in the additional area, from the date that area in question is included in the city. Clause (b) of Section (3)(3) is not concerned with the protection of conditions of service of the employees of the ZP who are absorbed into a Municipal Corporation. Clause (3) and (4) deal with ‘sums due’ and ‘debts, obligations, contracts and pending proceedings’, respectively.
Clause (5) thereafter reads as follows:- “ APPENDIX IV TRANSITORY PROVISIONS 1. –
Save as expressly provided by the provisions of this Appendix or by a notification issued under paragraph 22 or order made under paragraph 23, – (a) any appointment, notification, notice, tax, order, scheme, licence, permission, rule, bye-law or form made, issued, imposed or granted under (the area constituted to be a City immediately, before the appointed day shall, in so far as it is not inconsistent with the provisions of this Act, continue in force until it is superseded by any appointment, notification, notice, tax, order, scheme, licence, permission, rule, bye-law, or form made, issued, imposed or granted under this Act or any other law as aforesaid, as the case may be; (b) all budget estimates, assessments, valuations, measurements, and divisions made under (the Maharashtra Municipalities Act, 1965) or any other law in force in any area constituted to be a City immediately before the appointed day shall in so far as they are consistent with the provisions of this Act, be deemed to have been made under this Act; (c) all officers and servants in the employ of the said municipality or local authority immediately before the appointed day shall be officers and servants employed by Clause 5, thus, deals with ‘continuation of appointments’, taxes, budget estimates, assessments etc.’ and its Sub-Clause (C) specifically says that all officers and servants under the employment of a municipality or local authority immediately before the appointed day shall be officers and servants employed by the Corporation under this Act and shall, subject to other provisions made in accordance with the provisions of this Act, receive salaries and allowances and be subject to the conditions of service which were operative on such date.
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The first proviso provides, crucially, that service rendered by such officers and servants before the appointment date shall be deemed to be service rendered in the service of the Corporation itself. 5 to 79 in the ZP is consistent and unbroken and it remains in existence even after their absorption into the PMC as a result of the statutory protection embodied under Clause (5) of Appendix (IV) read with Section 493 of the MMC Act. All pending applications, if any, stand disposed of.
Case Title: MAHARASHTRA RAJYA PADVIDHAR PRATHAMIK SHIKSHAK VA KENDRA PRAMUKH SABHA Vs. PUNE MUNICIPAL CORPORATION (2023 INSC 258)
Case Number: C.A. No.-001765-001765 / 2023
