S.S. Shinde, J.
1. Rule. By consent, rule made returnable forthwith. Counsel for respective respondents waive notice. By consent, heard finally forthwith.
2. This writ petition is filed under Article 226 of the Constitution of India with prayer to issue a Writ of Mandamus and/or writ, direction in the nature of Writ of Mandamus and to hold that the impugned Resolution No. 25 dated 14th June, 2007 passed by the respondent No.2 and order dated 27th June, 2007 is illegal and bad in law. It is further prayed that, Resolution No. 25 dated 14th June, 2007 may be quashed and set aside. A further relief is sought to quash and set aside the order dated 27th June, 2007 issued by the respondent No.2.
3. It is further prayed that, the respondent No. 2 be directed to revive and complete the selection process initiated by the respondent No. 2 in pursuance of advertisement dated 18th February, 2006 and 21st August, 2006. There is specific prayer to hold that, the impugned Resolution No. 25 dated 14th June, 2007 passed by the respondent No. 2 be declared as illegal, bad in law, and same may be quashed and set aside. Further direction is sought to direct the respondent No. 1 to take appropriate action against the concerned officers/employees of the respondent No. 2 Corporation, who has passed the impugned order dated 27th June, 2007 and made the illegal appointments in pursuance thereto.
4. The background facts for filing the writ petition as stated in the writ petition are as under:
The petitioners herein are unemployed youths who have applied for the Class IV posts in pursuant to advertisement issued by the respondent No. 2 in the year 2006. It is the case of the petitioners that, the respondent No. 2 had advertised 170 posts of Safai Kamgars and the petitioners had duly applied for the same. The petitioners had been interviewed for the said posts. The petitioners, alongwith petition, have placed on record copies of the application and the letters issued by the Corporation to the petitioner No. 1. The petitioner No. 2 also applied for the said post.
5. It is the case of the petitioners that, as no further action of declaring successful candidates was being taken, the petitioner No. 2 by his letter dated 31st March, 2008 and 7th April, 2008 called upon the respondent No. 2 to declare the list of successful candidates at the earliest. The petitioners have placed on record the copy of the said letter written by the petitioner No. 2 to the officer of the respondent No. 2. In turn, the respondent No. 2 by letter dated 16th April, 2008 informed the petitioner No. 2 that whole selection process has been scrapped.
6. It is further case of the petitioner No. 2 that, he applied for the post of Public Relation Officer with the respondent No. 2 Corporation but he found that the respondent No. 2 has given appointment to its unqualified employee for extraneous reasons. However, the said issue is the subject matter of separate writ petition.
7. It is the case of the petitioners that, though the respondent No. 2 made sham exercise of calling for candidates through public advertisements for direct recruitments, however, the said process has not been taken to its logical end. The respondent No. 2 made appointments by giving back door entry to such candidates who are related or connected with respondent No.2's officers/employees. It is specific case of the petitioners that, the whole exercise of making appointments to the Corporation are for extraneous reasons and by discriminating against candidates like the petitioners.
8. It is further case of the petitioners that, One "Shantistar Builders" who had build a township 'Shanti Nagar' in the respondent No. 2 Corporation limits, had proposed to transfer the Water Supply System run by it to the Corporation alongwith its employees to the respondent No. 2. The said proposal was objected by the Corporators. In spite of the said objection, the respondent No. 2 passed Resolution No. 25 dated 14th June, 2007, which incorrectly record the same to be a unanimous decision of its house. The petitioners have placed on record the relevant portion of proposal No. 54 which came to be passed as Resolution No. 25 dated 14th June, 2007 alongwith the writ petition.
9. It is the case of the petitioners that, pursuant to the said Resolution No. 25 dated 14th June, 2007, the Commissioner of respondent No. 2 has passed the impugned order dated 27th June, 2007 whereby the Corporation has absorbed 69 employees (allegedly to be in the employment of the builder's Water Supply System till then). The copy of the impugned order dated 27th June, 2007 is placed on record by the petitioners alongwith the writ petition. It is the case of the petitioners that, the said impugned order dated 27th June, 2007 was hastily issued by the respondent No. 2 as the Code of Conduct due to the impeding Corporation Elections was expected to be applied at any moment. The said Code of Conduct was applied on and from 28th June, 2007 i.e. next day on which order dated 27th June, 2007 was issued by the respondent No. 2.
10. It is the case of the petitioners that, some of the Corporators of the respondent No. 2 did object to the impugned order and to that extent, the petitioners have placed on record the copy of one such complaint by the Mayor dated 3rd December, 2007 at Exhibit-G of the compilation of the writ petition. According to the petitioners, all the aforesaid facts prove that the respondent No. 2 passed the resolution without any data regarding the number of employees involved. An order appointing 69 employees was hastily passed though the resolution was only confined for 10 employees. It is the case of the petitioners that, though the minutes of meeting dated 14th June, 2007 were not approved due to Code of Conduct of impeding Municipal Elections, the respondent No. 2 acted upon the said resolution and appointed 69 employees.
11. It is further case of the petitioners that, even some of the erstwhile employees of "Shantistar Builders" had complained against the corruption in the appointment of 69 employees in the respondent No. 2 Corporation. According to the said complaints, though they being employed on the said Water Supply Scheme of 'Shanti Nagar' by "Shantistar Builders" for years together, they are illegally denied the appointments by the respondent No. 2, whereas strangers who had never worked in the said water supply scheme were appointed for monetary gains by the respondent No.2's Corporators and officers. According to the said complaints, Water Supply Scheme had only 28 employees, whereas 69 employees came to be illegally inducted in Corporation services by fraudulent means for monetary gains of some of the Corporators and Corporation officers. The copy of the said complaint dated 20th August, 2008 is placed on record by the petitioners. It is the case of the petitioners that, the said complaint is at Exhibit-H of the compilation of the writ petition, of which copy was referred to the Anticorruption Committee formed by the State Government at District level.
12. The petitioners states that, several such irregular and illegal appointments made by the respondent No. 2 were brought to the notice of the respondent No.1. The representation dated 12th March, 2010 was handed in to the Chief Minister of the respondent No.1 with request to look into the issue of illegal appointments. Copies of the said representation were also given to the several authorities. However, Anticorruption Bureau refused to entertain the complaint. It is further case of the petitioners that, the respondent No.1's concerned department called upon the respondent No. 2's Municipal Commissioner to file its explanation in respect of petitioner's complaint.
13. The petitioners further submits that, the respondent No. 2, in an exfacie illegal and irregular manner, has appointed 69 employees in the Municipal Employment. The fraudulent record to show 69 persons as employees of a Private Builder Water Supply System was created. It is further case of the petitioners that, though there was opposition by some of the Corporators for absorbing employees of private builders to Municipal Services, a resolution falsely records that, such resolution to absorb employees of Private Builder i.e. "Shantistar Builders" came to be unanimously passed. It is specific case of the petitioners that, the said resolution was not approved by next General Body Meeting due to the Code of Conduct being made applicable, however, it came to be implemented by the respondent No. 2 illegally. The proposal as tabled for the meeting dated 14th June, 2007 makes a mention of 10 employees of the "Shantistar Builders", the Resolution No. 25 dated 27th June, 2007 records them to be 45 in number, without any data to the said effect being placed on record. However, the number of appointments made in pursuance thereto are 69. It is the case of the petitioners that, even original employees of the Private Builder were side tracked and total strangers were employed.
14. It is further case of the petitioners that, they were under impression that the respondent No. 2 is acting upon the advertisement to select and appoint 170 persons in pursuance of the advertisement in the year 2006. However, in the year 2010 the petitioners realized that the said advertisement and further process of appointment to 170 posts initiated in the year 2006 is scrapped and 69 persons are appointed by the Respondent No.2. Therefore, the petitioners have approached this Court by way of filing the writ petition under Article 226 of the Constitution of India. The petitioners in paragraph 8 of the writ petition have explained delay in filing the writ petition.
15. The writ petition was heard by this Court on 5th May, 2011. The officer of the respondent No. 2 Corporation namely Shivaji Baliram Barkund working as City Engineer filed affidavit in reply on 4th June, 2011. It appears that, the issue regarding maintainability of the writ petition was raised by the respondents. It further appears that, when the writ petition was taken up for hearing on 29th July, 2011 the respondents raised objection regarding laches in filing the writ petition. Further objection was raised about non joinder of necessary parties and third preliminary objection was raised for not challenging the material resolution passed by the respondent No. 2. It further appears that, this Court granted liberty to the petitioners to amend the writ petition. By order dated 30th September, 2011 this Court issued notices to the added respondents. Thereafter, service of notice was complete on all the concerned parties. The writ petition was listed for hearing on 17th April, 2012. This Court on the said date passed the following order:
"List this matter on 20th April 2012 First On Board for final disposal. Counsel appearing for the private Respondents prays for longer time. We reject this request as it is noticed that the matter has been adjourned from time to time on different occasions for eight times. It is not possible to give further time to the Respondents who have failed to file reply affidavit by choice."
The matter was listed for final disposal on 20th April, 2012. However, affidavit of the respondent No.4 for himself and other respondents was ready for filing and accordingly acceding to the request of the Counsel appearing for the respective respondents, the petition was adjourned to 3rd May, 2012 to enable the respective respondents to file their affidavit in reply in the Registry. The respondent No. 4 has filed his affidavit in reply on 20th April, 2012. On 3rd May, 2012 the matter was fully heard. The arguments were concluded by the respective Counsel appearing for the respective parties. However, the Counsel appearing for the private respondents prayed for time to take instructions on the issue that emerged during the argument. Accordingly, the matter was adjourned to 8th May, 2012 under Caption 'Direction'. On 8th May, 2012 the matter was reserved for judgment.
16. The learned Counsel appearing for the petitioners during the course of hearing submitted that, the respondent No. 2 by passing resolution and further by issuing order dated 27th June, 2007 appointed 69 persons illegally and contrary to the law laid down in various judgments of the Supreme Court and also dehors the relevant provisions and procedure prescribed for the appointments in Public Employment. The learned Counsel appearing for the petitioners strenuously contended that, the respondent No. 2 in an exfacie illegal and irregular manner, appointed 69 employees in the Municipal Corporation. It is further argued that, the said resolution was not approved by the next General Body Meeting due to Code of Conduct and also said resolution was not approved by the House, however, the respondent No. 2 proceeded to appoint and absorb 69 employees which were allegedly working with "Shantistar Builders". It is further argued that, though the meeting dated 14th June, 2007 makes a mention of 10 employees of "Shantistar Builders", Resolution No. 25 dated 14th June, 2007 records them to be 45 without any data to the said effect being placed on record. Shockingly the number of appointments made in pursuance thereto are 69. It is submitted that, if the list of appointees is perused, it will become clear that, leaving aside list of employees of private builder, all other appointees are in one way or other related or connected with the officers/employees of the respondent No. 2 Corporation. It is further submitted that, though the respondent No. 2 making a sham exercise of calling applications for direct recruitments, is not taking the said process to its logical end and the appointments are made through back door entry. It is submitted that, whole exercise of making appointment to the posts in the Corporation are for extraneous reasons and by discriminating the candidates like the petitioners.
17. The learned Counsel for the petitioners pressed into service the reported judgment of the Supreme Court in the case of Secretary, State of Karnataka and others vs. Umadevi (3) and others [(2006) 4 SCC 1] and submitted that, the appointments by the respondent No. 2 are in violation and contrary to the law laid down by the Hon'ble Supreme Court in the aforesaid exposition. It is submitted that, the respondent No. 2 is a State Instrumentality and therefore, was under obligation to set in motion selection process for regular recruitment by following relevant provisions of law and also procedure laid down thereunder. It is submitted that, law laid down by the Supreme Court in aforementioned authoritative pronouncement has been breached/violated by the respondent No. 2 Corporation while appointing the respondent Nos. 3 to 69. The learned Counsel in addition to aforesaid exposition also pressed into service the following reported judgments of the Supreme Court in support of their contention that, while making regular appointments the respondent No. 2 is bound to follow relevant provisions and procedure being instrumentality of State within the meaning of Article 12 of the Constitution of India: (1) National Fertilizers Limited and others vs. Somvir Sing. [(2006) 5 SCC 493]. (2) Naresh K. Sharma vs. S.C. Ranan. [(2008) ALL SCR 1694]. (3)Surendra Prasad Tewari vs. U.P. Rajya Krishi Utapadan Mandi Parishad and others. [2007(1) ALL MR 461 (S.C.)]. (4) Union Public Service Commission vs. Girish Jayantilal Vaghela and others. [(2006) SCC 482]. (5)B.S. Minhas vs. Indian Statistical Institute and others. [(1983)4 SCC 582].
18. The learned Counsel for the petitioners submitted that, though the decision to scrap recruitment procedure was initiated long back by the respondent No. 2 Corporation, the aforesaid fact reached to the knowledge of the petitioners in the year 2010. It is submitted that, the petitioners when got knowledge of scrapping recruitment process by the respondent No.2, made various representations to the concerned authorities. However, the authorities have not paid attention to their representations and therefore, in the said process, some time was consumed. Thereafter, the petitioners have taken immediate steps to file the writ petition. It is submitted that, the appointments of the private respondents by the respondent No. 2 are per se illegal and challenge to such illegal appointments by way of filing writ petition cannot be turned down on the technical ground raised by the respondents that, the writ petition is filed in the year 2011.
19. It is submitted that, the respondent No. 2 is 'authority' and covered under the definition of "State" under Article 12 of the Constitution of India, therefore, the writ petition is maintainable against the said authority. It is submitted that, with the leave of the Court all the necessary parties are joined as party respondents and are duly served. Therefore, the learned Counsel appearing for the petitioners would submit that, preliminary objections raised by the respondents are required to be rejected.
20. The learned Counsel appearing for the respondent No. 2 invited our attention to the affidavit in reply filed by one Shivaji Baliram Barkund, working as City Engineer in the respondent No. 2 Corporation and submitted that, the petition is hopelessly barred by the latches and required to be dismissed on this ground alone. It is submitted that, admittedly the decision to transfer the Water Supply System run by "Shantistar Builders" alongwith Staff to the Corporation was taken by the General Body of Corporation vide Resolution No. 25 dated 14th June, 2007. It is submitted that, order dated 27th June, 2007 was just a consequential order and challenge thereto cannot be sustained in absence of challenge to the Resolution No. 25 dated 14th June, 2007. It is submitted that, the petitioners have not joined the necessary parties to the petition. It is submitted that, Resolution No. 25 dated 14th June, 2007 was passed after long discussion and therefore, it cannot be said that, the said resolution was not passed after due deliberation. It is submitted that, the petitioners have made reckless allegations against the respondent No. 2 without any basis. It is submitted that, the respondent No.2 Corporation has acted strictly in accordance with law and therefore, there is no any case for interference in exercise of extraordinary jurisdiction of this Court. Therefore, the learned Counsel appearing for the respondent No. 2 submitted that, the writ petition may be dismissed.
21. The learned Counsel appearing for the respondent No. 2 invited our attention to the provisions of Section 189 of the BPMC Act, 1949 and submitted that, the transfer of Water Works or Water Supply Scheme from "Shantistar Builders" to the respondent No. 2 alongwith its employees is permissible. It is an obligation of the respondent No. 2 to supply water to all its subjects within its jurisdiction and therefore, to achieve said laudable object, the absorption of the employees of "Shantistar Builders" in the regular employment of the respondent No. 2 is legal and permissible.
22. The learned Counsel also invited our attention to the provisions of the Bombay Provincial Municipal Corporations Act, 1949. (For short, "BPMC Act, 1949"). The learned Counsel submitted that, the petitioners have remedy under Section 451 of the BPMC Act, 1949 for redressal of their grievance and therefore, this writ petition may not be entertained. It is submitted that, the respondent No. 2 Corporation has obligation of supplying water to its citizens residing within its jurisdiction. For the purpose of carrying out the said obligation of supplying water under the provisions of BPMC Act, 1949, the respondent No. 2 inter alia has power to purchase water works under the provisions of the BPMC Act, 1949. It is submitted that, water works as aforesaid also include the employees working from the said water works who are the part of the said water works scheme. It is submitted that, on 22nd June, 2007 an agreement was executed by/and between "M/s. Shantistar Builders" and the Commissioner of the respondent No. 2. In clause5 of the said agreement dated 22nd June, 2007 it is specifically stated that, the said arrangement of water supply/water works is taken over from "M/s. Shantistar Builders" alongwith 69 employees employed for the purposes of maintenance etc., of the said water works. It is submitted that, the petitioners have neither annexed the said agreement dated 22nd June, 2007 to the petition nor challenged the said agreement pursuant to which, the services of the said 69 employees were taken over by the respondent No. 2 by issuing order dated 27th June, 2007. It is submitted that, the power of appointing the Municipal Officers, whether temporary or permanent, whose minimum monthly salary exclusive of allowances is or exceeds Rs. 400/vests in the Corporation. Therefore, according to the Counsel for respondent No. 2, the power of appointment vests in the Corporation and therefore, the resolution passed by the Corporation and consequential order dated 27th June, 2007 appointing/absorbing 69 persons from "Shantistar Builders" is well within the powers of the Corporation. It is submitted that, the Corporation is under obligation to supply water to the citizens residing within the jurisdiction of the Corporation and therefore, once water supply scheme is transferred by "Shantistar Builders" in favour of the respondent No. 2 by specific agreement, the persons working under the said scheme are required to be absorbed in the Corporation. Such exercise is permissible under the BPMC Act, 1949. Therefore, the Counsel for the respondent No. 2 prays for dismissal of the writ petition.
23. The Counsel appearing for the respondent Nos. 4 to 8, 16, 19, 23, 24, 32 to 36, 38, 40, 41, 42, 43, 44, 51, 52, 55, 57, 60, 61, and 68 would submit that, the writ petition suffers from latches and required to be rejected on that ground alone. On behalf of the respondent No. 4, it is submitted that, the petitioners have challenged alleged illegal appointment of 69 employees made by the respondent No. 2. The writ petition is not only in the interest of the petitioners themselves but filed in the alleged public interest and therefore, the petition filed by the petitioners is required to be dismissed as the same is filed espousing the alleged cause of public at large.
24. It is further submitted that, the petitioners have challenged the resolution of the respondent No. 2 Corporation passed on 14th June, 2007 and consequential action taken pursuant to the said resolution dated 14th June, 2007 of issuing order dated 27th June, 2007. However, the petitioners have filed the aforesaid writ petition on 21st March, 2011 which is required to be dismissed on the sole ground of delay and latches. It is submitted that, the petitioners have remedy to challenge the resolution dated 14th June, 2007 under Section 451 of the BPMC Act, 1949. It is submitted that, "M/s. Shantistar Builders" developed area popularly known as 'Shanti Nagar' within the jurisdiction of the respondent No. 2 by constructing approximately buildings. In the said development, said "Shantistar Builders" also made arrangement for supplying of water by constructing two elevated storage reservoirs having capacity of 11 lakh ltrs, and 8.5 lakhs ltrs, respectively. Said "Shantistar Builders" also constructed the pipe line net work for supplying the water from the said elevated storage reservoir. Said "Shantistar Builders" appointed employees for maintaining the said arrangement of water works for supplying water to various tenements of the aforesaid buildings. It is submitted that, though the arrangement for supply of water were constructed by "M/s. Shantistar Builders", water was being supplied to the said main reservoirs by the respondent No. 2. It is submitted that, said "M/s. Shantistar Builders" used to only distribute the water which is being supplied by the respondent No. 2 to the various tenements in the aforesaid buildings. It is submitted that, said "M/s. Shantistar Builders" used to pay to the respondent No. 2 the water charges and after supplying it to the tenements as aforesaid, the said "Shantistar Builders" used to collect from the tenements the water charges, which were much more than the charges paid by him to the respondent No. 2. It is in these circumstances, it was resolved by the respondent No. 2 in its meeting dated 14th June, 2007 to take over the said arrangement of water supply/water works from "M/s. Shantistar Builders". After passing of the said resolution dated 14th June, 2007, on 22nd June, 2007 an agreement was executed by and between "M/s. Shantistar Builders" and the Commissioner of the respondent No. 2. In clause5 of the said agreement dated 22nd June, 2007 it is specifically stated that the said arrangement of water supply/water works is taken over from "M/s. Shantistar Builders" alongwith 69 employees employed for the purposes of maintenance etc., of the said water works. It is further submitted that, the said agreement dated 22nd June, 2007 is not challenged by the petitioners. It is submitted that, the respondent No. 2 Corporation has obligation to supply water within its jurisdiction and in order to carry out the said obligation of supplying water under the provisions of BPMC Act, 1949, the respondent No. 2 inter alia has power to purchase water works under the provisions of BPMC Act, 1949. It is further submitted that, the water works also include employees working for the said water works who are part of the said water works. It is submitted that, even "M/s. Shantistar Builders" would not allow the respondent No. 2 to purchase its water works, dehors the employees appointed for the said water works. Even the employees appointed for the said water works would not allow the respondent No. 2 to take over the water works without taking over their employment. It is, therefore, submitted that, the respondent No. 2 is perfectly within its power to purchase the water works developed by "M/s. Shantistar Builders" alongwith the employees appointed for the said water works. It is submitted that BPMC Act, 1949 provides for procedure to be followed in case of appointments of its officers and servants. However, in the present case, the employees in question are taken over from "M/s. Shantistar Builders" by virtue of purchase of water works. Therefore, said procedure of appointments would not be attracted. It is submitted that, Complaint No. 7 of 2008 made before the AntiCorruption Committee was rejected by its order dated 3rd August, 2009 on the ground that there was no substance in the complaint and the allegations were made on the basis of surmises and conjunctures. Therefore, it is submitted that, the writ petition may be dismissed.
25. The learned Counsel pressed into service the reported judgment of the Supreme Court in the case of The Corporation of the City of Nagpur vs. Its Employees and others [AIR 1960 SC 675] and submitted that, Water Work Department of the Corporation comes under the definition of 'Industry'. The learned Counsel submitted that, when the Corporation has taken over the water supply scheme from "Shantistar Builders", it was permissible for the respondent No. 2 to take over the said water supply scheme alongwith its employees. In support of this contention, the learned Counsel placed reliance on the reported judgment of the Supreme Court in the case of The Board of Directors of the South Arcot Electricity Distribution Co. Ltd. vs. N.K. Mohammed Khan etc. [ 1969(1) SCC 192]. It is submitted that, in the said case, the Company was taken over by the Government alongwith its employees. The learned Counsel also pressed into service exposition of the Supreme Court in the case of Bangalore Water supply and Sewerage Board vs. A. Rajappa and others [1978(2) SCC 213]. The learned Counsel also relied upon the reported judgment of the Supreme Court in the case of National Textile Corporation Limited, New Delhi and another vs. Padmashree Shivlal Shah and others [1993(1) SCC 218] and submitted that, in the said case also employees were absorbed when the Mills were taken over by the Corporation in view of Section 25 FF of the Industrial Disputes Act, 1947. For the same contention, the Counsel placed reliance on the another reported judgment of the Supreme Court in the case of Inland Steam Navogation Works Union and another vs. Union of India and others [2001(3) SCC 47]. The learned Counsel further invited our attention to the provisions of Section 25 F and 25 FF of the Industrial Disputes Act, 1947 and also to the provisions of Section 54 and Chapter III of Schedule D of the BPMC Act, 1949.
26. The learned Counsel for the private respondents further invited our attention to the reported judgment of the Supreme Court in the case of GurmailSingh and others vs. State of Punjab and others [(1991) 1 Supreme Court Cases 189] and submitted that, in the facts of that case, the Supreme Court has taken a view that in certain exceptional circumstances such as where both the transferor and transferee are State or State instrumentalities, it is open to the Court to review whether the terms and conditions of the transfer ensure fairness in action and nonarbitrariness and if not, to issue directions for granting continuity in service and consequential retiral benefits in appropriate cases. The learned Counsel further submitted that, in the facts of the present case, there is a transfer of Water Supply Scheme from "Shantistar Builders" to the respondent No. 2 Corporation and therefore, such transfer alongwith its employees working with the earlier employer, to the respondent No. 2 Corporation, is perfectly justified and sustainable in law, in view of the authoritative pronouncement in the case of GurmailSingh and others vs. State of Punjab and others (supra). Therefore, the learned Counsel appearing for the respondent Nos. 4 to 8, 16, 19, 23, 24, 32 to 36, 38, 40, 41, 42, 43, 44, 51, 52, 55, 57, 60, 61, and 68 submits that, the writ petition may be dismissed.
27. We have given anxious consideration to the rival submissions. At the threshold, we would like to deal with the preliminary objections raised by the respondents. The respondents, in their affidavits-in-reply have stated that the impugned resolution and orders were passed in the year, 2007 and the writ petition was filed in the year, 2011 and, therefore, there are laches in filing the writ petition. In this respect, the petitioners have given explanation in para 8 of the petition and also in the rejoinder filed by them. The petitioners have stated that they were unaware of the resolution dated 14th June, 2007 and the impugned order dated 27th June, 2007 passed by the Commissioner of respondent No.2 appointing the private respondents. The petitioners were under an impression that the selection process initiated by way of publishing advertisement by the respondent No.2 in the year, 2006 is in progress. It is only in the year, 2010, the petitioners realized that the respondent No.2 had illegally appointed 69 persons by the impugned order dated 27th June, 2007. The petitioners thereafter, made representations to the respondent No.1 and also several other authorities. However, the respondent No.1 and other authorities have failed to take any action against the respondent NO.2 and, therefore, the petitioners have immediately filed the writ petition. In our opinion, the petitioners have properly explained the delay and, therefore, we do not find any substance in the preliminary objection raised by the respondents that there is delay in filing the petition.
28. Another preliminary, objection raised by the respondents is about the maintainability of the writ petition. The respondent No.2 is an "authority" and covered under the definition of "State" under Article 12 of the Constitution of India and, therefore, is amenable to the writ jurisdiction. Hence, there is no substance in the preliminary objection raised by the respondents about the maintainability of the writ petition. Thirdly, the respondents have stated that there is an alternate remedy available under Section 451 of the BPMC Act. Merely because an alternate remedy is available under the BPMC Act, is not a ground for not entertaining the writ petition. The petitioners have raised vital issues in the petition. The petitioners have raised the issue that the appointments of the private respondents made by the respondent No.2 are dehors the relevant provisions under the BPMC Act and the procedure laid down therein. There are also pleadings that there is violation of Articles 14 and 16 of the Constitution of India. There are also pleadings to the effect that while appointing the private respondents, the respondent NO.2 has failed to observe the Constitutional reservations. In our opinion, the remedy provided under Section 451 of the said Act is not adequate and efficacious to deal with the issues raised in this petition. Apart from this, the petitioners have stated that they did make representation to the respondent No.1. However, the State of Maharashtra has not considered their representation favourably and, therefore, they were constrained to file the writ petition.
29. Another preliminary objection is about non joinder of necessary parties to the petition. However, in pursuance to the liberty granted by this Court, 69 persons have been joined as respondents and they are also served. Therefore, there is no substance in the contention of the respondents that necessary parties are not joined.
30. We have carefully perused the pleadings in the writ petition, annexures thereto, other documents placed on record by the parties to the petition, judgments of the Hon'ble Supreme Court which are relied upon by the Counsels appearing for the respective parties and we are of the opinion that, in the present writ petition we are called upon to decide the main question : Whether the respondent No. 2 herein could have absorbed/appointed private respondents in its employment in the guise of transfer of Water Supply Scheme from "Shantistar Builders" to the respondent No. 2 Corporation, without following the mandate of Section 54 and the method of appointment as provided under Chapter III Schedule D of the BPMC Act, 1949, and further without following the law laid down by the Supreme Court and well established procedure evolved through the various judgments of the Supreme Court on subject that, the regular appointments in the Public Employment can only be by way of advertising the posts and in consonance with the relevant provisions and procedure prescribed thereunder including to observe the constitutional obligation of reservation for SC, ST and OBC?
31. The respondent No. 2 by passing Resolution No. 25 dated 14th June, 2007 and by the consequential order dated 27th June, 2007 passed by the Commissioner, Mira Bhayander Municipal Corporation has absorbed/appointed the private respondents on various posts including Engineer, Clerk, and Safai Kamgar. The said resolution and the consequential order dated 27th June, 2007 passed by the Commissioner of respondent No. 2 Corporation are the subject matter of this writ petition. The respondent No. 2 in its meeting dated 14th June, 2007 dealt with Subject No. 54 and passed the Resolution No. 25 thereby taking decision to absorb/appoint the staff working with the "Shantistar Builders" for Water Supply Scheme, on vacant posts in the Municipal Establishment on the permissible payscale. The resolution also sanctioned expenditure that will have to be incurred for the said purposes and further making terms and certain conditions applicable to the permanent staff of the Corporation to be made applicable to the said staff which was working with the "Shantistar Builders" for implementing/executing Water Supply Scheme. The petitioners alongwith the petition, have placed on record the relevant portion of Subject No. 54 under which the Resolution No. 25 came to be passed by the respondent No. 2 on 14th June, 2007, in vernacular alongwith its English translation. Since the main challenge in this writ petition is to the Resolution No. 25 dated 14th June, 2007 it would be appropriate to reproduce herein below the Resolution No. 25 dated 14th June, 2007 which is at page Nos. 51G to 51N of the compilation of the writ petition. Said Resolution reads thus:
"Chapter No.54 Date: 14.6.2007
Transfer of Water Supply Scheme situated at Shanti Nagar, (Mira Road) from Shanti Star Developers Complex.
Resolution No.25
M/s Shantistar Builders has developed Shantinagar Complex within the limits of MiraBhayander Municipal Corporation. M/s Shanti Star Builders are having their own water supply scheme for the said complex since last 2022 years. Mahanagarpalika providing for the said complex 5.00 lakhs litre of water supply to the M/s Shantistar Builders and the Shantistar Builders is providing the said water to the complex.
The current water supply was found to be short due to increase in the population of Shantinagar area. To overcome the shortage in supplying water to this area, MiraBhayander Municipal Corporation followed it up with the State Government and after meetings with the State Government and as per guidance given in the meetings the Agreement dated 31.3.2004 entered between two parties i.e.Mira Bhayander Mahanagarpalika and Shantistar Developers. As per the Condition No. 1 of the said agreement the Shantistar Builders has to construct the elevated water tank having sized of 11 lacs liters for which the construction cost will be approximately 5055 lacs and out of this cost the Mira Bhayander will contribute to the extent of Rs.10.40 lacs. After the completion of the said water tank the Maharashtra Jeevan Pradhikaran should provide the Mahanagarpalika. The completion certificate as well as the certificate regarding the successful testing of hydraulic in the said water tank. As per the Condition NO. 3 of the agreement after the completion of the said elevators water tank the whole scheme of water supply providing water from S.K. stone to Shantinagar Complex of Bhayander should be transferred free of cost on as is where is basis and in good condition to the Mahanagarpalika.
M/s Shantistar Developer vide its letter no. 1 has informed the Shantistar Builders about the completion of construction of 11 lacs elevated water tank and the inspection done by the Maharashtra Jeevan Pradhikaran and their permission to start the water supply from the newly constructed water tank. As per the condition no. 3 and 5 of the agreement M/s Shantistar Developers has to transfer the whole water pipelines scheme in good condition and free of cost to the Mahanagarpalika.
Currently Shantistar area is having water pipe line of approximately 33 k.m. length. They are 80 mm to 300 mm in diameter. The said complex has 662 buildings and 524 have water connections. The existing staff employed by the Developer for running the water supply scheme is as per the following list:
| Sr. No. | Name | Post |
| 1 | Mr. Sayyed Azar Mohimuddin | Engineer |
| 2 | Mr. Deepak Vitthal Jadhav | Engineer |
| 3 | Mr. Anand Kisan Dabhade | Clerk |
| 4 | Mr. Parmeshwar Mahadev Gode | Clerk |
| 5 | Mr. Ganesh Kantilal Gadge | Clerk |
| 6 | Mr. Vijay Mohan Gaikwad | Clerk |
| 7 | Mr. Narayan Dyandev Jadhav | Cleaner |
| 8 | Mr. Madhukar Pandu Suryavanshi | Cleaner |
| 9 | Mr. Satish Honawar | Cleaner |
| 10 | Mr. Ramdas Dombarsay | Cleaner |
| 11 | Mr. Ramnika Goswami | Cleaner |
| 12 | Mr. Madhukar Babulal Sonawane | Cleaner |
| 13 | Mr. Bhimrao Shankar Shere | Cleaner |
| 14 | Mr. Rama Kamble | Cleaner |
| 15 | Mr. Shankar Shinde | Cleaner |
| 16 | Mr. Barco Dangade | Cleaner |
| 17 | Mr. Shankar Satisappa Poddar | Cleaner |
| 18 | Mr. Bahgwat Ganga Salve | Cleaner |
| 19 | Mr. Vasudev Sitaram Dhangekar | Cleaner |
| 20 | Mr. Pyarelal Shivaskar | Cleaner |
| 21 | Mr. Ganesh Rangadi | Cleaner |
| 22 | Mr. Vilas Laxman Gaikwad | Cleaner |
| 23 | Mr. Sachin Uttam Kharat | Cleaner |
| 24 | Mr. Suresh Bhoir | Cleaner |
| 25 | Mr. Fulhadan Jagannath Yadav | Cleaner |
| 26 | Mr. Janardan Patil | Cleaner |
| 27 | Mr. Shashikant Thakur | Cleaner |
| 28 | Mr. Bhagwan Mankar | Cleaner |
| 29 | Mr. Babu Namdev Jadhav | Cleaner |
| 30 | Mr. Suresh Sarnappa Sarkamble | Cleaner |
| 31 | Mr. Mahadev Kadam | Cleaner |
| 32 | Mr. Kiran Tukaram Gaikwad | Cleaner |
| 33 | Mr. Mahesh Shantaram Tamare | Cleaner |
| 34 | Mr. Nagare Tarachand Dinkar | Cleaner |
| 35 | Mr. Singh Atul Ramdev | Cleaner |
| 36 | Mr. Vilas Ramchandra Bagad | Cleaner |
| 37 | Mr. Bhushan Bhagwat Aahire | Cleaner |
| 38 | Mr. Sunil Dagdu Dawale | Cleaner |
| 39 | Mr. Mane Chintamani Mahadev | Cleaner |
| 40 | Mr. Mahesh Baburao Dawale | Cleaner |
| 41 | Mr. Sandeep Shyam Sawant | Cleaner |
| 42 | Mr. Waghmare Jai Vijay | Cleaner |
| 43 | Mr. Mandgey Shivaji Narayan | Cleaner |
| 44 | Mr. Tamboli Iqbal Gulam Shaikh | Cleaner |
| 45 | Mr. Farook Ali Memon | Cleaner |
| 46 | Mr. Bhaskar Krushna Mane | Cleaner |
| 47 | Mr. Ashok Laxman Mane | Cleaner |
| 48 | Mr. Vilas Dinkar Dhivar | Cleaner |
| 49 | Mr. Vinod Gangadhar Jamdade | Cleaner |
| 50 | Mr. Mangesh Hareshwar Raut | Cleaner |
| 51 | Mr. Santosh Manik Kharatmol | Cleaner |
| 52 | Mr. Hemant Gorekar | Cleaner |
| 53 | Mr. Jayesh Kamlakar Mhatre | Cleaner |
| 54 | Mr. Bahrat Yashwant Mhatre | Cleaner |
| 55 | Mr. Vijay Shivaji Patil | Cleaner |
| 56 | Mr. Bhushan Anant Patil | Cleaner |
| 57 | Mr. Devendra Vasant More | Cleaner |
| 58 | Mr. Arjun Jaisingh Gaikwad | Cleaner |
| 59 | Mr. Vilas Shripali Tele | Cleaner |
| 60 | Mr. Bhairav Bhima Naik | Cleaner |
| 61 | Mr. Rajendra Keshav Naik | Cleaner |
| 62 | Mr. Sachin Sangit Salunkhe | Cleaner |
| 63 | JasitaSimon Patil | Cleaner |
| 64 | Mr. Ajay Ramchandra Patil | Cleaner |
| 65 | Mr. Vijay Prakash Patil | Cleaner |
| 66 | Mr. Santosh Parab | Cleaner |
| 67 | Mr. Prashant Balwant Patil | Cleaner |
| 68 | Mr. Sandeep Dattatray More | Cleaner |
| 69 | Mr. Yogesh Mohan Gaikwad | Cleaner |
This house hereby decideto appoint the said staff to the vacant posts on the Municipal Establishment on the permissible pay scales. This House all sanctions the expenditure that will have to be incurred for said purposes. All the terms and service condition applicable to the permanent staff of the corporation is to be made applicable to the said staff. That all the policies pertaining to water supply presently being employed by the Corporation shall be applied to this scheme too.
Proposer: Shri Harel Bojirs
Seconded by: Shri Chandrakant Modi
Passed unanimously
Resolution read and finalized
Sd/-
Mayor
Mira Bhayander Mahanagarpalika."
(emphasis supplied).
32. At the outset, it would be relevant to refer the provisions of Section 54 and also Chapter III Schedule D of the Bombay Provincial Municipal Corporations Act, 1949, which reads thus:
"54. Manner of making appointments.
(1) There shall be a Staff Selection Committee consisting of the Commissioner or any other officer designated by him in this behalf, the Municipal Chief Auditor, the Head of the Department concerned and not more than one other officer nominated by the Commissioner.
(2) The Staff Selection Committee shall, in the manner prescribed in the rules, select candidates for all appointments in the municipal service other than appointments referred to in subsection (1) of section 53 and other than those which the Corporation may, with the previous approval of the State Government, by order specify in this behalf, unless it is proposed to fill the appointment from amongst persons already in municipal service or unless the appointment is of a temporary character and is not likely to last for more than six months.
(3) Every authority competent to make appointments in the municipal service shall make appointments of the candidates so selected in accordance with the directions given by the Staff Selection Committee.
(4) With reference to officers and servants appointed under Chapter XX the provisions of this section shall apply as if for the word "Commissioner" the words "Transport Manager" had been substituted.
(5) Subject to the provisions of this section, any appointment of a municipal officer or servant shall be made in the manner prescribed in the rules, save as expressly provided therein."
"CHAPTER III
Method of Appointment of Certain Municipal Officers and Servants and their Duties and Powers
1. Method of appointment,
1. Manner of making appointment.
Save in the case of temporary appointment made under subsection (7) of section 45 and in the case of acting appointments made under section 58 no person shall be appointed to any of the posts the power of appointment to which vests in the Corporation unless he possesses the qualifications prescribed in this behalf under rule 3.
2. Before making an appointment to any post referred to in rule 1 applications shall be invited for such post by advertisement in the local newspapers and the applications received shall be scrutinised by the Commissioner who shall submit to the Commissioner, through a committee if so required by the Corporation a list arranged in order of preference of such persons out of those who have applied as he considers qualified for the post:
Provided that, if the Corporation is of the opinion that any officer in municipal service possessing the qualifications prescribed under rule 3 is a fit person to be appointed to the post, it may appoint such officer to the post without following the procedure prescribed in this rule.
3. Subject to the provisions of this Act, the Corporation shall from time to time prescribe the qualifications required for each post, the power of appointment to vest in the Corporation, with the approval of the State Government, who may, in granting such approval make such modifications, in, or additions to the qualifications prescribed by the Corporation as it deems fit.
4. In the case of appointments made by any authority other than the Corporation no person shall be appointed except in a temporary or provisional capacity for a period not exceeding six months, unless he possess the qualifications specified in the regulations."
33. In Chapter III Schedule D under clause 5 of the BPMC Act, 1949 the Municipal Chief Auditor is empowered to audit the accounts of the Corporation. It is needless to mention that, the concerned Auditor has to only certify expenditure which can be legally sustainable under the relevant rules.
34. There is no dispute that, under the provisions of Section 54 and under Chapter III Schedule D of the BPMC Act, 1949, the procedure is prescribed for appointment of certain Municipal Officers and servants and their duties and powers are stated therein. Apart from the above mentioned relevant provisions from the BPMC Act, 1949, as a State instrumentality the respondent No. 2 Corporation is bound to follow the relevant law provisions and procedure as prescribed for the appointment in the employment of the respondent No.2. At this juncture, it is apposite to reproduce herein below Article 12 of the Constitution of India.
"12. Definition. In this part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India."
35. Bare perusal of Article 12 of the Constitution of India, would make it abundantly clear that, "the State" includes even all local or other authorities. The respondent No. 2 being the Municipal Corporation would fall under the 'authority' and it is "the State" within the meaning of Article 12 of the Constitution of India. Therefore, it is bound by the relevant provisions of the BPMC Act, 1949 and procedure prescribed thereunder for the appointment for the post of Municipal Officers and servants etc., in the employment of the respondent No. 2. It follows from mandate of Article 12 of the Constitution of India and Section 54 of the BPMC Act, 1949 that, the respondent No. 2 'authority' is bound to follow the relevant provisions and method and procedure prescribed in Chapter III Schedule D of the BPMC Act, 1949. In the facts of this case, it is admitted position that, the respondent No. 2 has passed Resolution No. 25 dated 14th June, 2007 and subsequently by entering into an agreement dated 22nd June, 2007 decided to get transferred the Water Supply Scheme from "Shantistar Builders" to itself alongwith employees working with "Shantistar Builders" for supply of water. It is an admitted position that, the respondent No. 2 by only passing resolution dated 14th June, 2007 and consequentially entering into an agreement dated 22nd June, 2007 and further by passing order dated 27th June, 2007 by its Commissioner, Corporation absorbed/appointed private respondents, who were working earlier with "Shantistar Builders", in the regular employment of the respondent No.2 Corporation. It is also not in dispute that, "Shantistar Builders" is not Government Undertaking or instrumentality of the State. If the resolution dated 14th June, 2007 passed by the respondent No.2, an agreement dated 22nd June, 2007 entered between the respondent No. 2 and "Shantistar Builders" and order passed by the Commissioner of the respondent No. 2 Corporation dated 27th June, 2007 absorbing/appointing the private respondents in the employment of the respondent No. 2 Corporation, is carefully perused, it is abundantly clear that, the resolution does not refer to any advertisement issued for making appointments to regular posts, qualification of 69 persons or their eligibility. Therefore, appointments of 69 persons are without following mandate of the provisions of Section 54 of the BPMC Act, 1949 and are also dehors the method of appointment provided for in Chapter III Schedule D of the BPMC Act, 1949, and also in breach of law laid down by the Hon'ble Supreme Court on the subject.
36. We have carefully perused the contents of the resolution No.25 dated 14th June, 2007 passed by the respondent NO.2. In the said resolution, there is a reference to the agreement dated 31st March, 2004 entered into between the respondent No.2 and M/s Shantistar Builders. However, nothing has been brought on record by the respondents which would suggest that there is clause in the said agreement for transfer of Water Supply Scheme in future alongwith its employees from M/s Shantistar Builders to Mira Bhayandar Municipal Corporation. There is nothing on record to suggest that M/s Shantistar Builders were appointed to act as an agent of the respondent No.2 qua the Water Supply Scheme. The agreement dated 31st March, 2004 only refers to the construction of Water Tank and also water supply by M/s Shantistar Builders to Shantinagar Complex. The agreement further mentions that the whole scheme of water supply providing water from S.K. Stone to Shantinagar Complex of Bhayander would be transferred free of costs on as is where is basis and in good condition to the respondent No.2. No where, it is mentioned that the said watter supply scheme will have to be transferred alongwith its employees to the respondent No.2. Assuming that such condition has been stipulated in the Agreement with the Corporation, it is doubtful that such condition can be or should be accepted by the Corporation in spite of the statutory provisions mandating appointment of its employees in the manner specified. More over, whether that condition has been duly approved by the concerned Authority is also not forthcoming. Nothing has been placed on record to suggest that the said water supply scheme is initiated or evolved by the respondent No.2. It would not be out of place to mention here that, M/s Shantistar Builders were supposed to transfer the water supply scheme and not the employees, who were employed by it under the said scheme. Nothing has been brought on record by the respondents to even remotely suggest that while granting permission to M/s Shantistar Builders to develop the township, there was any agreement between M/s Shantistar Builders and the corporation for transfer of the employees alongwith the water supply scheme. Be it noted that it is a case of transfer of water supply “Scheme” and not of transfer of “Undertaking” as such. It is undisputed position that, the private respondents were not appointed by the respondent No.2 and they were never the employees of the respondent No.2.
37. So far transfer of Water Supply Scheme simplicitor without absorption of 69 employees from "Shantistar Builders" to the respondent No. 2 is concerned, there cannot be any grievance by the petitioners. At the cost of repetition, the main question which falls for our consideration is : whether the appointment of the private respondents in the employment of the respondent No. 2 Corporation, without following the mandate of Section 54 of the BPMC Act, 1949, the judgments of the Supreme Court and this Court on the subject, and also without following method and procedure as provided under Chapter III Schedule D of the BPMC Act, 1949, can be sustained? In our considered opinion, viewed from any angle, the part of the resolution to appoint/absorb the persons working with "Shantistar Builders' under Water Supply Scheme, in the regular employment of the respondent No. 2 Corporation, without following the relevant provisions and method of appointment is illegal, contrary to procedure and is in violation of the law laid down by the Supreme Court on subject. It is a fraud on the Statute and more so constitutional guarantees including in respect of reservation. Though the Counsel appearing for the private respondents was at pains to argue that, the provisions of Section 25 F and Section 25 FF of the Industrial Disputes Act, 1947 are attracted in the present case and the Labour Court and the Industrial Court is not denuded from exercising powers under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (For short, "MRTU and PULP Act") and also under the Industrial Disputes Act, 1947, in our opinion, that is not a question which is raised by either of the parties before appropriate forum and therefore there is no question of adjudication of the same in this writ petition. Admittedly, none of the parties to the petition have invoked the provisions of Industrial Disputes Act, 1947 or there is nothing on record to indicate that, there was attempt to invoke the provisions of the Industrial Disputes Act, 1947 in the facts of this case. Therefore, in our considered opinion, nobody has invoked the provisions of the Industrial Disputes Act, 1947 in the present case, and therefore, the arguments advanced by the Counsel for the private respondents that the provisions of Section 25 F and 25 FF of the Industrial Disputes Act, 1947 are attracted in the present case, needs no consideration and we refrain ourselves from addressing the said point raised by the Counsel for the private respondents.
38. It is possible for the private respondents to invoke the provisions of the Industrial Disputes Act against M/s Shantistar Builders since it is their appointing authority. However, the respondent No.2 is not the appointing authority of the private respondents and the private respondents were never the employees of the respondent No.2 Corporation and, therefore, they cannot invoke the provisions of the Industrial Disputes Act against the respondent NO.2 Corporation for redressal of their grievance. It is also relevant to mention that the case in hand is not a case of transfer of an undertaking. However, there is transfer of only the water supply scheme from M/s Shantistar Builders to respondent No.2. Therefore, there is no question of invoking any provisions of the Industrial Disputes Act by the private respondents against respondent No.2 Corporation.
39. In our opinion, transfer of Water Supply Scheme by "Shantistar Builders" to the respondent No.2 may be within the domain of the respondent No.2, however, transfer of such Water Supply Scheme alongwith its employees and absorption of employees working with "Shantistar Builders", dehors the provisions of Section 54 and method and procedure brought under Chapter III Schedule D of the BPMC Act, 1949, and also in breach of law laid down in various judgments of the Supreme Court, cannot be sustained in law, and that part of the resolution thereby taking decision to absorb/appoint the persons working with "Shantistar Builders" in the Water Supply Scheme or doing any other work, in the employment of the respondent No. 2 is illegal, impermissible and contrary to rules.
40. We have carefully perused the provisions of Section 54 of the BPMC Act, 1949. Provision of Section 54 in an unequivocal terms provides for Staff Selection Committee consisting of the Commissioner or any other office designated by him in this behalf for the appointment of the posts. Subsection (3) of Section 54 states that, every authority competent to make appointments in the municipal service shall make appointments of the candidates so selected in accordance with the directions given by the Staff Selection Committee. Subsection (5) of Section 54 provides for appointment of a municipal officer or servant shall be made in the manner prescribed in the relevant rules, subject to the provisions of Section 54. Therefore, there is no manner of doubt that, regular appointments are subject to the provisions of Section 54. In Chapter III Schedule D of the BPMC Act, 1949, method of appointment is provided. Clause (1) provides for the qualification for the posts. Clause (2) of the said Chapter provides for making of appointment to any post referred to in rule 1, application shall be invited for such post by advertisement in the local newspapers and the applications received shall be scrutinised by the Commissioner who shall submit to the Corporation, through a committee if so required by the Corporation a list arranged in order of preference of such persons out of those who have applied as he considers qualified for the post. Therefore, provision of Section 54 and method of appointment provided under Chapter III Schedule D of BPMC Act, 1949 would make it abundantly clear that, any appointments to the posts in the respondent No. 2 Corporation are subject to the provisions of Section 54 and method and procedure prescribed under the BPMC Act, 1949.
41. The appointments of 69 persons by the respondent No.2 for regular posts of Engineers, Clerks and Cleaners are without considering the length of service of each of the individuals and also without considering their qualifications and also without observing the Constitutional reservations and, therefore, the same cannot be sustained in law.
42. At the cost of repetition, it is required to be mentioned that, the respondent No. 2 Corporation being a 'authority' under Article 12 of the Constitution of India, is amenable to the writ jurisdiction and also bound by the procedure followed for the appointments in the Public Employment. Therefore, the respondent No. 2 was bound to follow the provisions of the BPMC Act, 1949 and various judgments of the Supreme Court on subject before absorbing/making appointments of the private respondents in the employment of the respondent No. 2 Corporation. The absorption/appointment of the private respondents who were earlier working with "Shantistar Builders" dehors the relevant law provisions and method and procedure prescribed, cannot be sustained in law. Apart from above, in the facts of this case, when the advertisement was issued by the respondent No. 2 in the year 2006 and applications were invited for the appointments of certain posts and subsequently, even interviews were conducted, the respondent No. 2 was obliged to follow the provisions of Section 54 and method of appointment as stated in Chapter III Schedule D of the BPMC Act, 1949.
43. In the facts of this case, it will have to be held that, after issuing advertisement for the appointments of certain posts in respondent No. 2 Corporation, the respondent No.2 Corporation was not justified in scrapping the whole process pursuant to the advertisement issued in the year 2006 for the appointments of the regular posts, and appoint the private respondents, who were working earlier with "Shantistar Builders", in the employment of the respondent No. 2 Corporation. The Supreme Court time and again held that, there cannot be any appointment in the Public Employment on the posts dehors the relevant rules and procedure prescribed and such appointment to the post without following the procedure and relevant provisions, is illegal and liable to be set aside.
44. As discussed earlier, admittedly in the present case, nobody has invoked the provisions of Industrial Disputes Act, 1947 and therefore, we are not called upon to deal with whether the respondent No. 2 is 'industry' or not or activities undertaken by the respondent No. 2 are covered under the Industrial Disputes Act, 1947. However, on plain reading of the judgment in the case of GurmailSingh vs. State of Punjab (supra), both the transferor and transferee were the State or State instrumentalities and therefore, in the facts of GurmailSingh's case, Supreme Court held that, in certain exceptional circumstances such as where both the transferor and transferee are State or State instrumentalities, it is open to the Court to review whether the terms and conditions of the transfer ensure fairness in action and nonarbitrariness and if not, to issue directions for granting continuity in service and consequential retiral benefits in appropriate cases. In the case of GurmailSingh, Supreme Court further held that, where one or both of the parties is a State instrumentality, having obligations under the Constitution, the Court has a right of judicial review over all aspects of transfer of the undertaking. It is open to a Court, in such a situation, to give appropriate directions to ensure that no injustice results from the changeover. In the case of GurmailSingh, parties to the transfer are a State on the one hand and a fully owned State Corporation on the other. However, in the present case, "Shantistar Builders" is not State instrumentality or any Corporation or any State agency but it is a private builder and therefore, in the facts of this case, the observations of the Supreme Court in the aforesaid exposition are not attracted.
45. In the first place, it is an admitted position that, nobody has invoked the provisions of the Industrial Disputes Act, 1947 and there is no adjudication on any issue by the concerned Forum and therefore, the contention of the Counsel appearing for the respondent Nos. 4 to 8, 16, 19, 23, 24, 32 to 36, 38, 40, 41, 42, 43, 44, 51, 52, 55, 57, 60, 61, and 68 that the Water Supply Scheme is covered under 'industry' needs no consideration in this writ petition. Secondly, "Shantistar Builders" is a private establishment and therefore, absorption/appointments of its employees in the regular establishment of the respondent No. 2 is not permissible and is not contemplated by any of the judgments which are cited by the learned Counsel appearing for the respondent Nos. 4 to 8, 16, 19, 23, 24, 32 to 36, 38, 40, 41, 42, 43, 44, 51, 52, 55, 57, 60, 61, and 68. Thirdly, even if it is assumed that, the provisions of the Industrial Disputes Act, 1947 would attract in the facts of this case, for that, the private respondents will have to invoked the said provisions against their appointing authority and earlier employer "Shantilal Builders".
46. Another aspect though not raised in this petition incidentally is required to be taken into consideration is that, some of the private respondents who were working with "Shantistar Builders" are appointed as Engineers and Clerks. It is not open to argue that an engineer would be a workman. Besides, whether those employees can be appointed on said posts straight way in the employment of the respondent No. 2 Corporation, thereby defeating legitimate expectation of the employees who are working in the feeder cadre of respondent No. 2 Corporation and hoping for their promotion as a Clerk or Engineer, as the case may be. In our opinion, it there are some posts of Engineers or Clerks to be filled in by promotion, legitimate expectation of the employees who are already working in the employment of the respondent No. 2 Corporation, and hoping for promotion as a Clerk or Engineer, cannot be defeated by absorbing the private respondents who were earlier working with "Shantistar Builders", in regular establishment of respondent No.2 on the post of Engineer or the Clerk as the case may be.
47. It is also relevant to mention that, there is no specific denial to the contention of the petitioners that, not only the respondent No. 2 has absorbed/appointed the persons who were working with "Shantistar Builders", however, other persons are also appointed on some regular posts, without following due process.
48. At this juncture, it would be relevant to refer to some of the leading judgments of the Supreme Court on the subject. The Hon'ble Supreme Court in the case of B.S. Minhas vs. Indian Statistical Institute and others reported in (1983) 4 S.C.C. 582, in paragraph Nos. 22, 24 and 25 held :
"22. Having regard to this decision and in view of the facts and circumstances in the present case there can be no doubt that respondent No.2 is an 'authority' within the meaning of Art. 12 of the Constitution and, therefore, the writ petition filed by the petitioner is competent and maintainable and the objection raised by Shri Garg cannot be accepted."
"24. In view of the pronouncement of this Court on the point it must be held to be obligatory on the part of respondent No. 1 to follow the byelaws, if the byelaws have been framed for the conduct of its affairs to avoid arbitrariness. Respondent No. 1 cannot, therefore, escape the liability for not following the procedure prescribed by byelaw 2."
"25. Compliance with this byelaw also seems to be necessary in the name of fairplay. If the vacancy in the post of Director had been publicised as contemplated by byelaw 2, all the persons eligible for the post may have applied and in that case, the field of consideration would have been enlarged and the selection committee or the Council would have had a much larger field from which to choose the best available person and that would have removed all doubt, of arbitrariness from the mind of those eligible for the post. Of course, we do not wish to suggest for a moment that appointment to every post must be made only after advertising or publicising the vacancy. That would not be right, for there are quite a few posts at the top level which cannot be and should not be advertised or publicised, because they are posts for which there should be no lobbying nor should any applications be allowed to be entertained. Examples of such posts may be found in the post of Commander of Armed Forces or the Chief Justice or the Judges of the Supreme Court or the High Court. But here byelaw 2 requires that vacancy in the post of Director should be publicised and hence we are making the above observation in this paragraph."
49. Therefore, it follows from the aforesaid authoritative pronouncement of the Supreme Court that, if there are relevant provisions for appointment, the State authorities and its instrumentalities are bound to follow the said provisions and procedure prescribed for appointments.
50. Yet, in another authoritative pronouncement of the Supreme Court in the case of the Secretary, State of Karnataka and others vs. Umadevi (3) and others reported in (2006) 4 SCC 1. The Supreme Court in paragraph Nos. 2,3,4,6,11,12, 41 and 43 held thus:
"2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme."
"3. A sovereign government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in an year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule. "
"4. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is bypassed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten."
"6. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See Basu's Shorter Constitution of India). Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appointment etc. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules. The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure. Normally, statutory rules are framed under the authority of law governing employment. It is recognized that no government order, notification or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the Constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed."
"11. In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment. Buttressing these fundamental rights, Article 309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution. With a view to make the procedure for selection fair, the Constitution by Article 315 has also created a Public Service Commission for the Union and Public Service Commissions for the States. Article 320 deals with the functions of Public Service Commissions and mandates consultation with the Commission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. As a part of the affirmative action recognized by Article 16 of the Constitution, Article 335 provides for special consideration in the matter of claims of the members of the scheduled castes and scheduled tribes for employment. The States have made Acts, Rules or Regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, Rules and Regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein."
"12. In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognized and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognized and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme."
"41. In the earlier decision in Indra Sawhney Vs. Union of India [1992 Supp. (2) S.C.R. 454), B.P. Jeevan Reddy, J. speaking for the majority, while acknowledging that equality and equal opportunity is a basic feature of our Constitution, has explained the exultant position of Articles 14 and 16 of the Constitution of India in the scheme of things. His Lordship stated:"
6. The significance attached by the founding fathers to the right to equality is evident not only from the fact that they employed both the expressions 'equality before the law' and 'equal protection of the laws' in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18.......
"7. Inasmuch as public employment always gave a certain status and power it has always been the repository of State power besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1), expressly declares that in the matter of public employment or appointment to any office under the state, citizens of this country shall have equal opportunity while clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to, declare in clause (4) that nothing in the said Article shall prevent the state from making any provision for reservation of appointments or posts in favour of any backward class of citizen which in the opinion of the state, is not adequately represented in the services under the state."(See paragraphs 6 and 7 at pages 544 and 545)
These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment."
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."
The aforesaid pronouncement is by the Constitution Bench of the Supreme Court which in an unequivocal language concludes that State or State instrumentalities are bound to follow the relevant provisions and procedure for recruitment on permanent posts in public employment. Any departure from relevant rules and procedure would be violative of Article 14 and 16 of the Constitution of India.
51. The Hon'ble Supreme Court in the case of National Fertilizers Ltd., and others vs. Somvir Singh reported in (2006) S.C.C. 493 in paragraph 13 held thus:
"13. The respondents herein were appointed only on applications made by them. Admittedly, no advertisement was issued in a newspaper nor was the employment exchange notified as regards existence of vacancies. It is now trite law that "State" within the meaning of Article 12 of the Constitution is bound to comply with the constitutional requirements as adumbrated in Article 14 and 16 thereof. When the Recruitment Rules are made, the employer would be bound to comply with the same. Any appointment in violation of such Rules would render them as nullities. It is also well settled that no recruitment should be permitted to be made through back door."
52. Yet, in another Constitution Bench judgment of the Supreme Court in the case of General Manager, Southern Railway and another vs. Rangachari [AIR 1962 SC 36] in paragraph Nos. 37 to 40 held thus :
"37. Equal opportunity is the basic feature of our Constitution. Public employment is repository of the State power. Certain status and powers emanate from public employment."
"38. H.M. Seevai, in his celebrated book 'Constitutional Law of India' has mentioned that in fact the principle of recruitment by open competition was first applied in India and then applied in England."
"39. Our constitutional scheme clearly envisages equality of opportunity in public employment. The Founding Fathers of the Constitution intended that no one should be denied opportunity of being considered for public employment on the ground of sex, caste, place of birth, residence and religion. This part of the constitutional scheme clearly reflects strong desire and constitutional philosophy to implement the principle of equality in the true sense in the matter of public employment."
"40. In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against constitutional scheme. In the backdrop of constitutional philosophy, it would be improper for the courts to give directions for regularization of services of the person who is working either as daily wager, ad hoc employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Article 14, 16 and 309 of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment."
53. Therefore, in view of clear enunciation of law laid down in the judgments of the Supreme Court referred hereinabove, in our considered opinion, the absorption/appointments of the private respondents in the employment of the respondent No. 2 is clearly violative of the provisions of Section 54 and procedure laid down in Chapter III Schedule D of the BPMC Act, 1949 and in particular, Articles 14 and 16 of the Constitution of India. The resolution passed by the respondent No. 2 for absorption of private respondents who were working with "Shantistar Builders" is clearly contrary to law laid down by the Supreme Court in the aforesaid authoritative pronouncements. Therefore, such Resolution No. 25 dated 14th June, 2007, consequential agreement dated 22nd June, 2007 entered between "Shantistar Builders" and the respondent No. 2 and further consequential order dated 27th June, 2007, issued by the Commissioner of the respondent No. 2 Corporation making absorption/appointments of the private respondents who were earlier working with "Shantistar Builders", or any other respondents, is clearly contrary to the relevant provisions and authoritative pronouncements of the Supreme Court cited supra, therefore we quash and set aside that part of resolution dated 14th June, 2007, by which it was resolved to appoint/absorb the private respondents in the employment of respondent No.2 on regular posts and also said part of agreement dated 22nd June, 2007 and order dated 27th June, 2007 passed by the Commissioner of respondent No.2, we hereby declare appointments of all private respondents per se illegal, unconstitutional, void ab initio and arbitrary and consequently set aside the same. The respondent No.2 will be at liberty to fill up said vacant posts in accordance with law. If the private respondents wish to avail appropriate remedy against their previous employer "Shanti Star Builders", they are free to do so.
54. Rule is made absolute in the above terms. Writ petition stands disposed of.