MAHARASHTRA RAJYA PADVIDHAR PRATHAMIK SHIKSHAK VA KENDRA PRAMUKH SABHA versus PUNE MUNICIPAL CORPORATION AND ORS. on 17 March 2023

MAHARASHTRA RAJYA PADVIDHAR PRATHAMIKSHIKSHAK VA KENDRA PRAMUKH SABHA

v.

PUNE MUNICIPAL CORPORATION AND ORS.

(Civil Appeal No. 1765 of 2023)

MARCH 17, 2023

[SURYA KANT AND J. K. MAHESHWARI, JJ.]

Maharashtra Municipal Corporation Act, 1949 – s.493 r/wCl. 5 of Appendix (IV) – Services rendered by primary teachers(Respondent nos.5 to 79) while in the service of the Zilla Parishad(ZP), if to be counted towards their seniority after the transfer andmerger of their services into the Pune Municipal Corporation (PMC)– On appeal by the primary teachers recruited directly by the PMCwhose seniority is adversely affected, held: Service rendered byRespondent Nos. 5 to 79 in the ZP has to be treated as servicerendered in the PMC and therefore has to be counted towards thedetermination of their seniority as well – No infirmity in the viewtaken by the High Court in this regard – Also, service rendered byRespondent Nos. 5 to 79 in the ZP is consistent and unbroken andit remains in existence even after their absorption into the PMC asa result of the statutory protection embodied under Clause (5) ofAppendix (IV) r/w s.493 – No merit in appeal – Service Law –Constitution of India – Art. 243Q.

Maharashtra Municipal Corporation Act, 1949 – s.3(3)(b) –Purpose and scope of – Discussed.

Dismissing the appeal, the Court

HELD: 1.1 On a cursory look of the legislative schemebehind the MMC Act, it is evident that Section 3 falls in Chapter1, which is captioned as ‘PRIMARY’. Since, the MMC Act wasenacted in 1949, it has been suitably amended from time to time,especially after the insertion of Part IX-A ‘Municipalities’ in ourConstitution with effect from 01.06.1993. Article 243Q(1)mandates that, in every State, the following would be constituted:(a) A nagar panchayat, for a transitional area, namely, an area intransition from rural to urban area; (b) a municipal council for a

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Asmaller urban area; and (c) a municipal corporation for a largerurban area. The obligation was placed on every State under sub-Article of Article 243Q to define ‘transitional area’, ‘a smallerurban area’ or ‘a larger urban area’. It is in discharge of thisConstitutional obligation that the State of Maharashtra alsoamended the MMC Act thereby providing under Section 3(1)Bthat a ‘larger urban area’ shall be specified by way of a Notificationto be issued under Article 243Q(2) of the Constitution, and suchan area shall be deemed to be a duly constituted MunicipalCorporation. Sub-Section (3) further provides that the StateGovernment, in consultation with the Corporation, may includeCor exclude an area from within the limits of the MunicipalCorporation. 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 whichDis for the time being in force in the larger urban area shall,notwithstanding anything contained in any other law, apply to andbe in force in the additional area, from the date that area inquestion is included in the city. To simplify, Clause (b) merelystates that whatever appointments, notifications, notices, rulesEor by-laws etc. are already in force in the existing ‘larger urbanarea’ will mutatis mutandis come into force in the “additional area”which is included by issuing a notification under Clause (a) ofSection 3(3) of the MMC Act. The purpose of Clause (b) is toensure that any statutory or administrative decision which hasalready been enforced by a Municipal Corporation in its existingFlarger urban area shall stay in force and will become applicableautomatically in the newly added area also. The expression‘appointments’ has to be understood in this context only. Thescope of Clause (b) as a provision is meant to facilitate theinclusion of newly added additional areas and to ensure that suchGareas do not remain in a vacuum for want of statutory oradministrative decisions following the cessation of its status aspart of the ZP. Clause (b) of Section (3)(3) is not concerned withthe protection of conditions of service of the employees of theZP who are absorbed into a Municipal Corporation. When the H

MAHARASHTRA RAJYA PADVIDHAR PRATHAMIK SHIKSHAK VAKENDRA PRAMUKH SABHA v. PUNE MUNICIPAL CORPORATION ANDORS.

Legislature never intended to regulate terms and conditions ofthe employees who are merged in a Municipal Corporation dueto expansion of ‘larger urban area’, no inference in relationthereto can be drawn from the plain wording of Section 3(3)(b) ofthe MMC Act. The reliance placed by the Appellants on the saidprovision is, thus, completely misplaced and is liable to berejected. [Paras 15-17][992-D-H; 993-A-F]

1.2 The provisions of Appendix (IV) shall apply to theconstitution of the Corporation and other matters specifiedtherein. Clause (1) of Appendix (IV) pertains to ‘construction ofreference in other enactments’ whereas Clause 2 provides thatall rights of the municipality or any other local authority shall, onthe date in question, vest in the Corporation constituted for thesaid area. Clauses (3) and (4) deal with ‘sums due’ and ‘debts,obligations, contracts and pending proceedings’, respectively.Clause 5 deals with ‘continuation of appointments’, taxes, budgetestimates, assessments etc.’ and its Sub-Clause (C) specificallysays that all officers and servants under the employment of amunicipality or local authority immediately before the appointedday shall be officers and servants employed by the Corporationunder this Act and shall, subject to other provisions made inaccordance with the provisions of this Act, receive salaries andallowances and be subject to the conditions of service which wereoperative on such date. The first proviso provides, crucially, thatservice rendered by such officers and servants before theappointment date shall be deemed to be service rendered in theservice of the Corporation itself. There is no dispute regardingthe fact that Clause 5(c), including its first proviso, occupies thisfield of law till date. The provision explicitly deals with protectionof conditions of service of the officers and servants who wereearlier employed in a local authority like a ZP, and who have beensubsequently absorbed into a Municipal Corporation. It expresslyprotects their service rendered by them in the local authoritybefore the appointed day and further provides that it shall beconsidered as service rendered in the Municipal Corporationitself. Given the existence of this unambiguous provision, theonly logical conclusion is that the service rendered by Respondent AB

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ANos. 5 to 79 in the ZP has to be treated as service rendered inthe PMC. Such service, therefore, has to be counted towardsthe determination of their seniority as well. There is no infirmityin the view taken by the High Court in this regard. Additionally,Clause (5) of Appendix IV starts with the expression‘continuation’ of appointments. The word ‘continuation’ connotesB‘without interruption’. It is an unbroken and consistent state ofaffairs or operation of something. In other words, the servicerendered by Respondent Nos. 5 to 79 in the ZP is consistent andunbroken and it remains in existence even after their absorptioninto the PMC as a result of the statutory protection embodiedCunder Clause (5) of Appendix (IV) read with Section 493 of theMMC Act. [Paras 18, 20-22][993-H; 994-A-B, H; 995-A, F-H;996-A-C]

Union of India v. Shiv Dayal Soin & Sons (P) Ltd. (2003)4 SCC 695 : [2003] 2 SCR 371 – referred to.D

Case Law Reference

[2003] 2 SCR 371referred toPara 11

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1765Eof 2023.

From the Judgment and Order dated 01.10.2021 of the High Courtof Judicature at Bombay in WP No. 7135 of 2019.

Vinay Navare, Sr. Adv., Ms. Deeplaxmi Subhash Matwankar,FMs. Gwen Karthika, Advs. for the Appellant.

Abhay Anil Anturkar, Dhruv Tank for M/s. Dr R. R. DeshpandeAnd Associates, Sachin Pahwa, Arvind S. Avhad, Sanjay Dubey, RoshanKumar Singh, Sandeep Lamba, Ms. Reeta Puniya, Ms. Sundri, Ms. SaloniGSharan, Ruma Pathak, Ms. Surajita Pattanaik, Ms. Nayan Maggo,Ms. Goldy Goyal, Vijay Singh, Kiran Mahato, Gurmeet Singh, K. R.Satheesh, Hira Singh Rawat, Anand Dilip Landge, SiddharthDharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Kirti Dadheech,Advs. for the Respondents.

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MAHARASHTRA RAJYA PADVIDHAR PRATHAMIK SHIKSHAK VAKENDRA PRAMUKH SABHA v. PUNE MUNICIPAL CORPORATION ANDORS.

The Judgment of the Court was delivered by SURYA KANT, J.

Leave granted.

2. The issue that requires our consideration in this case is whetherthe services rendered by primary teachers while in the service of theZilla Parishad (hereinafter “ZP”) deserves to be counted towards theirseniority after the transfer and merger of their services into the PuneMunicipal Corporation (hereinafter “PMC”)?

FACTS :

3. The State of Maharashtra is vested with the power to specifya ‘larger urban area’ of a municipal corporation under Section 3(1) ofthe Maharashtra Municipal Corporation Act, 1949 (in short, “MMC Act”).Such an area can further be altered by issuing a Notification under Section3(3). The expression, “larger urban area” is defined under Article 243Q(2)of the Constitution, which says that:- “(2) In this article, “a transitional area”, a “smaller urban area”or “a larger urban area” means such area as the Governor may,having regard to the population of the area, the density of thepopulation therein, the revenue generated for local administration,the percentage of employment in non- agricultural activities, theeconomic importance or such other factors as he may deem fit,specify by public notification for the purposes of this Part.”

4. State of Maharashtra in exercise of its powers under Section3(1) of MMC Act decided to expand the territorial limits of the PMCand, consequently, the geographical area of 38 villages which were partof the Pune ZP were merged into the PMC with effect from 01.11.1999.Post the merger, primary teachers as well as employees from otherdepartments who were serving in those villages were given the option tohave themselves transferred and absorbed into the services of PMC.

5. In this context, Sections 3(1) & 3(3) of the MMC Act beingrelevant are reproduced below: - “3. Specification of larger urban areas and constitution ofCorporations. [(1) The Corporation for every City constitutedunder this Act existing on the date of coming into force of theMaharashtra Municipal Corporations and Municipal Councils A

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(Amendment) Act, 1994, specified as a larger urban area in thenotification issued in respect thereof under clause (2) of Article243-Q of the Constitution of India, shall be deemed to be a dulyconstituted Municipal Corporation for the larger urban area sospecified forming a City, known by the name “The MunicipalCorporation of the City of....”; A

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(3) [(a)Subject to the provisions of sub-section (2), the StateGovernment] may also from time to time after consultation withthe Corporation by notification in the Official Gazette, alter thelimits specified for any larger urban area under sub-section (1) orsub-section (2) so as to include therein, or to exclude therefrom,such area as is specified in the notification.

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(b) Where any area is included within the limits of the [largerurban area] under clause (a), any appointments, notifications,Dnotices, taxes, orders, schemes, licences, permissions, rules, bye-laws or forms made, issued, imposed or granted under this Act orany other law, which are for the time being in force in the [largerurban area] shall, notwithstanding anything contained in any otherlaw for the time being in force but save as otherwise provided insection 129A or any other provision of this Act, apply to and be inEforce in the additional area also from the date that area is includedin the City.

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6. Respondent Nos. 5 to 79 were working as Primary Teachers inFthe Pune ZP. They were appointed on different dates prior to 01.11.1999.They too were given option for their merger in the PMC. They opted toaccede to the absorption and joined the PMC. It may be relevant tomention at this stage that with a view to regulate the conditions of serviceof employees who are merged from the Zilla Parishad to Municipalities,the State Government had passed a Resolution (hereinafter “GR”) datedG13.08.1990, the relevant part whereof reads as follows: - “xxxxxxxxx government was considering whether to consider service providedfor Zilla Parishad by said teachers should be considered for payfixing, seniority, retirement benefit, etc.in Municipal Council/

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MAHARASHTRA RAJYA PADVIDHAR PRATHAMIK SHIKSHAK VAKENDRA PRAMUKH SABHA v. PUNE MUNICIPAL CORPORATION ANDORS. [SURYA KANT, J.]

Municipal Corporation education department. Government ispassing order now regarding same that, service in Zilla Parishadof primary teachers should be considered for pay fixing, seniority,retirement benefit, etc. in Municipal Council/Municipal Corporationservice, who are transferred under rule in concerned MunicipalCorporation/Municipal Council education board from concernedZilla Parishad for reasons mentioned above. but concerned ZillaParishad should accept liability of service prior to classification ofconcerned primary teachers. government grant shall be passedfor. Zilla Parishad at the rate fixed thereon.

2. This government resolution is passed under official approval oftown development department, village development departmentand finance department and under official reference - 1045 / number-cr-1045/ 86/ser-4,dated 18.8.1986 of finance department.

(sic.)

7. The GR reproduced above unambiguously provides that theservices rendered by teachers in a ZP shall be taken into considerationwhen fixing pay, seniority, retiral benefits etc. on their permanent transferto Municipalities. Despite the seeming clarity on this point, there arose adispute in respect to fixation of inter se seniority between the teacherswho were initially recruited in the ZP and were later on absorbed intothe PMC, as opposed to the primary teachers who had been part of theservices of the PMC from the very beginning. There were a series ofcorrespondence on this issue between the Chief Executive Officer ofthe ZP and the Administrative Officer, Shikshan Mandal of the PMC,including two letters dated 11.10.1999 and 02.07.2011. Thesecommunications do not appear to us of any legal consequence given thefact that the GR dated 13.08.1990 has not been rescinded, modified orsuperseded by any subsequent government resolution.

8. The Appellant is an Association formed by the primary teacherswho were directly recruited by the PMC. Its members have an inter seseniority dispute with Respondent Nos. 5 to 79. A draft seniority list wascirculated by the PMC which proposed to assign seniority to RespondentNos. 5 to 79 from the dates they joined service in the ZP. The PMC,

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Ahowever, reversed its tentative decision vide letter on 04.02.2017 whichstated that Respondent Nos. 5 to 79 would be assigned seniority onlyfrom the date of their absorption into PMC. The private respondentsraised objections against the aforementioned decision, which resulted inthe constitution of a committee of five officers of the PMC forconsideration of those objections. On the recommendations of theBCommittee a final seniority list was eventually issued on 20.02.2018 inwhich the seniority of Respondent Nos. 5 to 79 was fixed only from thedate of their absorption into the PMC. For the sake of specificity, theoutcome of the Committee’s recommendations was that the servicerendered by Respondent Nos. 5 to 79 in their roles within the ZP stoodCexcluded from the length of their service.

9. Aggrieved, Respondent Nos. 5 to 79 approached the High Courtand a Division Bench vide the impugned judgment dated 1[st] October,2021 has allowed their writ petition in the following terms: -

“52. A conjoint reading of Section 493 which provides for transitoryDprovisions read with Clause 5 of Appendix IV clearly indicatesthat the service rendered by the officers and servants before inthe employment of the Municipality or the local authorityimmediately before the appended date shall be the officers andservants employed by the Corporation under the said Act and theEservices rendered by such officers and servants before theappointed date shall be deemed to be service rendered in the serviceof the Corporation. The second proviso to Clause 5 of AppendixIV empowers the Corporation to discontinue, the service of anyofficer or servant who in its opinion is not necessary or suitable tothe requirements of the municipal service, after giving such officerFor servant, such notice as is required to be given by the terms ofhis employment. Such discontinued employee shall be entitled tosuch leave, pension or gratuity as he would have been entitled totake or receive on being invalided out of service if this Act hadnot been passed.G53. It is not the case of the respondent no.1 or respondent no.3that service of any of these petitioners were discontinued by therespondent no.1 under second proviso to Clause 5 of AppendixIV on the ground of not being suitable to the requirements of themunicipal service or on the ground that their services were notHnecessary for the respondent no.1 – Corporation.

MAHARASHTRA RAJYA PADVIDHAR PRATHAMIK SHIKSHAK VAKENDRA PRAMUKH SABHA v. PUNE MUNICIPAL CORPORATION ANDORS. [SURYA KANT, J.]

54. In our view, the said provision under Section 493 of theMaharashtra Municipal Corporations Act read with Clause S(c)of the Appendix IV would also apply in case of en bloc transfer ofthe property forming part of such village which were transferredto the Municipal Corporation along with the schools, employeesand the students. In our view, the seniority of each of thesepetitioners thus will have to be counted from their initial date ofappointment in the schools run by Zilla Parishad and not from thedate of their transfer in the schools run by the respondent no.1Corporation. The impugned order showing the petitioners belowthe then existing employees of the respondent no. 1 by consideringthe date of their transfer in the schools run by the respondent no.1as the date of appointment is totally illegal and contrary to Section493 read with Clause S(c) of Appendix IV thereto.”

10. The Appellant Association, representing those primary teacherswho have been recruited directly by the PMC and whose seniority isadversely affected by the inclusion of the period spent by RespondentNos. 5 to 79 in ZP towards their seniority after absorption into the PMC,has now filed this appeal.

SUBMISSIONS:

11. Mr. Vinay Navare, learned Senior Counsel for the Appellantadvanced three submissions:

(i) Firstly, he argued that Respondent Nos. 5 to 79 were givena choice to either seek transfer into the PMC or to continuewith their services in the schools run by the ZP. Therespondent-teachers consciously made a choice to beassimilated into the PMC. Since this was a case involving‘voluntary transfer’ rather than an ‘administrative transfer’,they cannot claim the benefit of their past service towardsfixation of seniority.

(ii) Secondly, it was a case of expansion of the ‘larger urbanarea’ belonging to the PMC and, hence, conditions of serviceof Respondent Nos. 5 to 79 shall remain protected only tothe extent as provided under Section 3(3)(b) of the MMCAct. The said provision is conspicuously silent with respectto protection and consideration of past service. Section 493of the MMC Act read with Clause 5(c) of Appendix (IV)

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Arelied upon by the High Court will be attracted only in acase of newly constituted Municipality. That being not thecase here, the High Court gravely erred in relying upon thesaid provision. Shri Navare explained that the legislativeintent can be discerned from the fact that a provision similarto the first proviso to Clause 5(c) of Appendix IV, has notBbeen added to Section 3(3)(b) of the MMC Act. Reliancewas placed on Union of India v. Shiv Dayal Soin & Sons(P) Ltd.[1],wherein the following was observed:

“6. …… As a canon of statutory interpretation,expression unaus Est exclusion arteries, what isCexpressly mentioned in one place but not in another mustbe taken to have been deliberately omitted. ……..”

(iii) Thirdly, Shri Navare argued that the decision of PMC five-Member Committee, which unequivocally held that the dateof joining the PMC would be the conclusive determinantDfor the purpose of inter-se seniority, was a quasi-judicialorder which Respondent Nos. 5 to 79 did not assail beforeany forum. Their acquiescence and long silence on the matterestop them from questioning the subsequently published finalseniority list which was a step taken to comply with theEdecision of the Five Member Committee.

12. Learned counsel for Respondent No. 1, the PMC, alsosupported the cause of the Appellant and urged that in the event ofgranting the benefit of past service to Respondent Nos. 5 to 79, acascading domino effect will be triggered which will lead to otherFemployees of different departments who have been absorbed into PMCraising similar claims, thus, spawning an unending seniority disputebetween different cadres.

13. On the other hand, Mr. Abhay Anil Anurak, learned counselfor Respondent Nos. 5 to 79 strenuously opposed the Appellant’s claimGand urged that:

(i) First proviso to Clause 5(c) of Appendix IV, which is to beread into Section 493 of MMC Act, categorically providesthat the service rendered by Officers and Servants beforetheir date of appointment shall be deemed to be service H1 (2003) 4 SCC 695

MAHARASHTRA RAJYA PADVIDHAR PRATHAMIK SHIKSHAK VAKENDRA PRAMUKH SABHA v. PUNE MUNICIPAL CORPORATION ANDORS. [SURYA KANT, J.]

rendered in the service of the Municipal Corporation itself.In view of this statutory mandate, the High Court has rightlyheld that Respondent Nos. 5 to 79 are entitled to assign theseniority from the date they were appointed in ZP.

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(ii) The Government Resolution dated 13.08.1990, in nouncertain terms, provides that on inclusion of the area of aBZP within the limits of Municipal Corporation, the transferredemployees shall be entitled to the benefit of their past servicetowards fixation of pay, seniority and retiral benefits etc.This Resolution falls within the ambit of Article 162 of theConstitution, and is binding on all inferior authorities includingCthe PMC. Since Respondent Nos. 5 to 79 were appointedin the ZP, their previous service cannot be ignored. Heforcefully denied the Appellant’s contention that it was acase of ‘voluntary transfer’ and maintained that privaterespondents had no choice but to give their consent forabsorption in PMC as all the schools where they wereDworking had been transferred to within the municipal limits.

(iii) The Appellants have mis-quoted the contents of letter dated11.10.1999. The true extracts of the letter are as follows:

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4. Also, it is hereby ordered to absorb only those primaryteachers who have consented for being transferred tothe Pune Municipal Corporation and it is herebyrequested to accommodate said primary teachers withMunicipal Corporation.

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(iv) Neither the Appellant nor the PMC invoked Section 3(3)(b)of MMC Act before the High Court and their reliance uponthis provision has been made for the first time before thisCourt only.

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(v) With regard to the claim raised by Appellant regardingacquiescence and estoppel, learned counsel countered byarguing that Respondent Nos. 5 to 79 were not obliged tochallenge recommendations of PMC Committee specifically,given that they consequently objected to the culmination of H

those recommendations into the final seniority list dated 20[th]February, 2018, without any delay.

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ANALYSIS :

14. We have considered the rival submissions made on behalf ofthe parties and have minutely examined the statutory provisions reliedBupon by both the sides. In our considered view, the following two questionsneed to be determined to resolve the controversy:

(I) Whether the inter se seniority of the primary teachers whowere appointed in the ZP and were later on absorbed into PMC,vis-à-vis those primary teachers who directly joined PMC, is toCbe determined in accordance with Section 3(3)(b) of the MMCAct?;

(II) Alternatively, should such inter se seniority be determined inaccordance with Section 493 read with Clause 5I of Appendix IVof the MMC Act?

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Question No. I:

15. On a cursory look of the legislative scheme behind the MMCAct, it is evident that Section 3 falls in Chapter 1, which is captioned as‘PRIMARY’. Since, the MMC Act was enacted in 1949, it has beensuitably amended from time to time, especially after the insertion of PartEIX-A ‘Municipalities’ in our Constitution with effect from 01.06.1993.Article 243Q(1) mandates that, in every State, the following would beconstituted: (a) A nagar panchayat, for a transitional area, namely, anarea in transition from rural to urban area; (b) a municipal council for asmaller urban area; and (c) a municipal corporation for a larger urbanFarea. The obligation was placed on every State under sub-Article (2) ofArticle 243Q to define ‘transitional area’, ‘a smaller urban area’ or ‘alarger urban area’. It is in discharge of this Constitutional obligation thatthe State of Maharashtra also amended the MMC Act thereby providingunder Section 3(1) that a `larger urban area’ shall be specified by way ofa Notification to be issued under Article 243Q(2) of the Constitution,Gand such an area shall be deemed to be a duly constituted MunicipalCorporation. Sub-Section (3) further provides that the State Government,in consultation with the Corporation, may include or exclude an areafrom within the limits of the Municipal Corporation. It is in this contextthat Clause (b) of sub-section (3) provides that when an area is included H

MAHARASHTRA RAJYA PADVIDHAR PRATHAMIK SHIKSHAK VAKENDRA PRAMUKH SABHA v. PUNE MUNICIPAL CORPORATION ANDORS. [SURYA KANT, J.]

within the limits of the `larger urban area’, any appointments, notifications,notices, taxes, orders, schemes, licenses, permissions, rules, by-lawsissued, imposed or granted, under the MMC Act or any other law whichis for the time being in force in the larger urban area shall, notwithstandinganything contained in any other law, apply to and be in force in theadditional area, from the date that area in question is included in the city.To simplify, Clause (b) merely states that whatever appointments,notifications, notices, rules or by-laws etc. are already in force in theexisting ‘larger urban area’ will mutatis mutandis come into force in the“additional area” which is included by issuing a notification under Clause(a) of Section 3(3) of the MMC Act.

16. The purpose of Clause (b) is to ensure that any statutory oradministrative decision which has already been enforced by a MunicipalCorporation in its existing larger urban area shall stay in force and willbecome applicable automatically in the newly added area also. Theexpression ‘appointments’ has to be understood in this context only.

17. The scope of Clause (b) as a provision is meant to facilitatethe inclusion of newly added additional areas and to ensure that suchareas do not remain in a vacuum for want of statutory or administrativedecisions following the cessation of its status as part of the ZP. Clause(b) of Section (3)(3) is not concerned with the protection of conditionsof service of the employees of the ZP who are absorbed into a MunicipalCorporation. When the Legislature never intended to regulate terms andconditions of the employees who are merged in a Municipal Corporationdue to expansion of ‘larger urban area’, no inference in relation theretocan be drawn from the plain wording of Section 3(3)(b) of the MMCAct. The reliance placed by the Appellants on the said provision is, thus,completely misplaced and is liable to be rejected.

Question No. II:

18. Section 493 of the MMC Act reads as follows: - “493. Transitory provisions.- The provisions of Appendix IVshall apply to the constitution of the Corporation and other mattersspecified therein.”

It may be seen that the provisions of Appendix (IV) shall apply tothe constitution of the Corporation and other matters specified therein.Clause (1) of Appendix (IV) pertains to ‘construction of reference in A

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Aother enactments’ whereas Clause 2 provides that all rights of themunicipality or any other local authority shall, on the date in question,vest in the Corporation constituted for the said area. Clauses (3) and (4)deal with ‘sums due’ and ‘debts, obligations, contracts and pendingproceedings’, respectively.

B19. Clause (5) thereafter reads as follows:- “APPENDIX IV

TRANSITORY PROVISIONS

1. Construction of references in other enactments. ….

C2. Transfer of rights.- …

3. Sums due. - ….

4. Debts, obligations, contracts and pending proceedings.- ….

5. Continuation of appointments, taxes, budget estimates,assessments, etc. – Save as expressly provided by the provisionsof this Appendix or by a notification issued under paragraph 22 ororder made under paragraph 23, - D

(a) any appointment, notification, notice, tax, order, scheme,Elicence, permission, rule, bye-law or form made, issued, imposedor granted under (the area constituted to be a City immediately,before the appointed day shall, in so far as it is not inconsistentwith the provisions of this Act, continue in force until it issuperseded by any appointment, notification, notice, tax, order,scheme, licence, permission, rule, bye-law, or form made, issued,Fimposed or granted under this Act or any other law as aforesaid,as the case may be; E

(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 aGCity immediately before the appointed day shall in so far as theyare consistent with the provisions of this Act, be deemed to havebeen made under this Act;

(c) all officers and servants in the employ of the said municipalityor local authority immediately before the appointed day shall be H

MAHARASHTRA RAJYA PADVIDHAR PRATHAMIK SHIKSHAK VAKENDRA PRAMUKH SABHA v. PUNE MUNICIPAL CORPORATION ANDORS. [SURYA KANT, J.]

officers and servants employed by the Corporation under this Actand shall, until other provision is made in accordance with theprovisions of this Act, receive salaries and allowances and besubject to the conditions of service to which they were entitled tosubject on such date:

Provided that service rendered by such officers and servantsbefore the appointed day shall be deemed to be servicerendered in the service of the Corporation:

Provided further that it shall be competent to the Corporation todiscontinue the services of any officer or servant who, in its opinion,is not necessary or suitable to the requirements of the municipalservice, after giving such officer or servant, such notice as isrequired to be given by the terms of his employment and everyofficer or servant whose services are so discontinued, shall beentitled to such leave, pension or gratuity as he would have beenentitled to take or receive on being invalided out of service if thisAct had not been passed.”

[Emphasis applied]

20. Clause 5, thus, deals with ‘continuation of appointments’, taxes,budget estimates, assessments etc.’ and its Sub-Clause (C) specificallysays that all officers and servants under the employment of a municipalityor local authority immediately before the appointed day shall be officersand servants employed by the Corporation under this Act and shall, subjectto other provisions made in accordance with the provisions of this Act,receive salaries and allowances and be subject to the conditions of servicewhich were operative on such date. The first proviso provides, crucially,that service rendered by such officers and servants before theappointment date shall be deemed to be service rendered in the serviceof the Corporation itself.

21. There is no dispute regarding the fact that Clause 5(c), includingits first proviso, occupies this field of law till date. The provision explicitlydeals with protection of conditions of service of the officers and servantswho were earlier employed in a local authority like a ZP, and who havebeen subsequently absorbed into a Municipal Corporation. It expresslyprotects their service rendered by them in the local authority before theappointed day and further provides that it shall be considered as servicerendered in the Municipal Corporation itself. Given the existence of this A

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Aunambiguous provision, the only logical conclusion is that the servicerendered by Respondent Nos. 5 to 79 in the ZP has to be treated asservice rendered in the PMC. Such service, therefore, has to be countedtowards the determination of their seniority as well. There is no infirmityin the view taken by the High Court in this regard.

B22. Additionally, Clause (5) of Appendix IV starts with theexpression ‘continuation’ of appointments. The word ‘continuation’connotes ‘without interruption’. It is an unbroken and consistent state ofaffairs or operation of something. In other words, the service renderedby Respondent Nos. 5 to 79 in the ZP is consistent and unbroken and itremains in existence even after their absorption into the PMC as a resultCof the statutory protection embodied under Clause (5) of Appendix (IV)read with Section 493 of the MMC Act.

23. The appellant’s attempt to invoke estoppel against RespondentNos. 5 to 79 for their failure to challenge the report of the PMCCommittee does not assist its case. Firstly, the PMC Committee was notDcompetent to make any administrative recommendation dehors theGovernment Resolution dated 13.08.1990. Secondly, the cause of actionto launch the challenge arose in the first place only when final senioritylist was issued on 20.02.2018. Soon thereafter, Respondent Nos. 5 to 79approached the High Court, thus, dispelling any notion of them havingEslept on their rights. They cannot be said to have acquiesced to theadverse decision taken against them and neither there is any delay orlatches on their part. Appellant’s objection on this ground is untenableand must be rejected.

CONCLUSION: