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PETITIONER: MUNICIPAL CORPORATION OF GREATER  BOMBAY & ORS.

       Vs.

RESPONDENT: MRS. KALPANA SADHU KAMBLE & ORS.

DATE OF JUDGMENT30/08/1988

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) OJHA, N.D. (J)

CITATION:  1988 SCR  Supl. (2) 679  JT 1988 (3)   610  1988 SCALE  (2)546

ACT:     Civil Services: Municipal Corporation of Greater Bombay- - Resolution No. 567 dated 12.9.1975-- Reservation of  posts for back- ward classes-Held, applicable only prospectively-- Service  conditions  of  employees cannot  be  modified  and rights acquired taken away except under a valid law.

HEADNOTE:     The  Government  of Maharashtra passed a  resolution  on 23.5.1974  providing for reservation for certain section  of backward  classes at the stage of promotion in  the  service under  the  State. The appellant  Corporation  adopted  that reservation   policy  in  its  Resolution  No.   567   dated I2.9.1975.  That resolution, however, could not  be  brought into  force immediately. The Corporation  passed  Resolution No.  1652  on  4.3.l977  making  the  Resolution  No.   5677 applicable with effect from 23.5.1974.     Respondent  No. 1, who belonged to one of  the  backward classes,  was  promoted to the higher post on  21.3.1977  in pursuance  of  the said resolution. She  instituted  a  writ petition  in  the  High Court seeking  a  direction  to  the appellant  Corporation  to  promote  her  with  effect  from 23.5.1974, which was accepted by the Single Judge. An appeal therefrom was dismissed by the Division Bench.      In  this appeal by special leave it was  contended  for the  appellant   Corporation: (i) that the  High  Court  was wrong  in issuing direction to promote the first  respondent with effect from 23.5.1974 since that would have the  effect of  disturbing  the  promotions  made  between23.5.1974  and 21.3.1977,  and  (ii)that in any event the  promotions  made prior to 12.9.1975 could not be disturbed and that the first respondent  could not be promoted from a date  earlier  than 1.9.1975.     Modifying the writ issued by the High Court,     HELD:  The  1st respondent shall be deemed to  have  bee promoted with effect from 12.9. 1975 and not from 23.5.1974, as  directed by the High Court. [684C-D]                                                   PG NO 679                                                   PG NO 680     The  Government Resolution dated 23.5.1974 did not  come into force as far as the services under the Corporation were concerned  on  the  date  on which  it  was  passed  by  the

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Government.  It  could  only  come  into  effect  after  the Corporation  passed its resolution on 12.9.1975.  When  once the  Corporation passed the resolution dated  12.9.1975  any promotion made thereafter in the services of the Corporation could only be made subject to the reservation policy adopted by the Corporation. [683B-C]     The  mere  fact  that  there  was  some  delay  in   the collection of statistics and other particulars necessary for giving  effect to the resolution dated 12.9.1975  could  not have the effect of denying the benefit of the reservation to the  employees belonging to the backward  classes  concerned with effect from 12.9.1975. [683D]     Though service conditions of employees could be modified retrospectively, no modification which would have the effect of  depriving  them  of  their vested  rights  can  be  made retrospectively  except  under a valid law. No such  law  is placed  before the Court in the instant case. The  seniority of  the  employees who had been  lawfully  promoted  between 23.5.1974  and  l2.9.1975, therefore, cannot  be  disturbed. [684B-C]

JUDGMENT:     CIVIL APPELLATE JURISDITCTlON: Civil Appeal No. 2616  of 1983.     From  the  Judgment and Order dated  20.12.1982  of  the Bombay High Court in Appeal No. 709 of 1982.     V. A. Bobde and D. N . Mishra, Adv. for the Appellants.     R.F. Nariman and P.H. Parekh, Advs. for the Respondents.     The following Judgment of the Court was delivered by     VENKATARAMIAH,  J.The Municipal Corporation  of  Greater Bombay  (hereinafter referred to as ‘the  Corporation’)  and some  its officers have filed this appeal by  special  leave against  the Judgment and Order dated 20.12.1982  passed  in Appeal  No.  709 of 1982 on the file of the  High  Court  of                                                   PG NO 681 Bombay  affirming  the  Judgment dated   23.11.1982  of  the learned  Single  judge in Writ Petition No. 579 of  1981  in which  the  learned Single Judge had issued a  writ  in  the nature  of mandamus directing the Corporation  to  implement its Resolution No. 567 dated 12.4.1975 directing reservation of  certain vacancies while making promotions from  a  lower cadre to a higher cadre for the employees of the Corporation belonging  to  certain  sections of  backward  classes  with effect from 23.5.1974.     The   Government of Maharashtra passed a  resolution  on 23.5.1974 providing for reservation for certain sections  of backward  classes at the stage of promotion in the  services under  the  State.  Under  that  resolution  the  Government provided that in Class I, Class II and   Class III posts  in which  the element of direct recruitment did not  exceed  50 per  cent  where promotion was to be made on  the  basis  of seniority  subject  to  fitness, 13 per  cent  of  vacancies should  be  reserved  for  the  Scheduled  Castes  and   the Scheduled  Castes converts into Budhism, 7 per cent for  the Scheduled   Tribes  including  those  living   outside   the specified  areas  and 4 per cent for Denotified  Tribes  and Nomadic  Tribes. In order to implement the above scheme  the Government  directed  the  maintenance of  a  roster  of  50 vacancies in which S I. Nos. 1,9,17,25,33,41 and 49 were  to be  reserved  for  the Scheduled Castes  and  the  Scheduled Castes  converts into Budhism, Sl Nos. 2, 16 and 30 were  to be reserved for the Scheduled Tribes including those  living outside the specified areas and Sl. Nos. 3 and 28 were to be

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reserved for Denotified Tribes and Nomadic Tribes. The State Government’s  resolution was not applicable to the  services under  the  Corporation on its own force.  The  Corporation, therefore, passed the Resolution bearing No. 567 dated 12.9. 1975 which read as follows:     "That in partial modification of the orders passed under the  Corporation Resolution No. 364 dated the  11th  August, 1966 sanction be given to the policy,  regarding reservation of posts for Backward Community as adopted by the Government of Maharashtra and explained in the letter, being adopted by the  Corporation and reservation of posts being made in  the matter of direct recruitment except  those filled in by  the Corporation and other individual specified posts of officers whose number in any category is not more than three as  well as  in promotion posts, as proposed and the Commissioner  be authorised to inform the Government accordingly."                                              (emphasis added)                                                   PG NO 682     Although  the above resolution was passed on 12.9.  1975 it  was not brought into force immediately as it is  alleged that the Corporation had to collect statistics to  ascertain the   number  of  vacancies  that  were  available  at   the promotional   stage  since  23.5.  1974.   The   Corporation passed  another  resolution  being Resolution  No.  1652  on 4.3.1977  which read as follows:     "That  in  modification of the orders passed  under  the Corporation  Resolution  No. 567 dated the  12th  September, 1975, sanction be given to the policy regarding  reservation of  posts  for  Backward Classes in  the  matter  of  direct recruitment  and  at the stage of promotion, as  adopted  by the  Government  of  Maharashtra  under  their  Resolutions, General Administration Department No. BCC. 1972- ECR/J dated the  23rd  May,  1974 .  ....................So  far  as  it relates  to  reservation  of  the posts  in  the  matter  of promotion  for  certain  sections of  the  Backward  classes being   given  from  the  date  of  passing  of   Government Resolution  dated the 23rd May, 1974 referred to  above,  as proposed; ..............."     Pursuant  to the said resolution Respondent No.  1  Mrs. Kalpana   Sadhu Kamble, who belonged to one of the  backward classes, was promoted from the cadre of Assistant Teacher to the  higher  post of Deputy Head Mistress on  2  1.3.  1977. Feeling  aggrieved by the Corporation giving effect  to  her promotion  with effect from ,23.5.1974,  not on  which  date the  Government resolution was passed? she  instituted  Writ Petition  No. 579 of 1981 on the file of the High  Court  of Bombay requesting the High Court to issue a direction to the Corporation  to promote her with effect from 23.5.1974.  The learned  Single Judge, who heard the case, issued a writ  as prayed for. Against the judgment of the learned Single Judge the Corporation went up in appeal before the Division  Bench of  the  High  Court in Appeal No. 709  of  1982  which  was dismissed  at the stage of preliminary hearing. This  appeal by  special  leave  is filed against  the  judgment  of  the Division Bench of the High Court.      It  is urged on behalf of the Corporation (i) that  the High  Court.   was  wrong  in issuing  a  direction  to  the Corporation  to promote the 1st respondent with effect  from 23.5.1974  since  the  direction would have  the  effect  of disturbing  the promotions made between  23.5.1974  and21.3. 1977, on which date the 1st respondent was actually promoted and  (ii)  that in any event the promotions  made  prior  to 12.4.1975,   on  which  date  the  Corporation  passed   the                                                   PG NO 683 resolution giving effect to the  Government resolution dated

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23.5.  1474, could not be disturbed and that      A the  1st respondent  could not be promoted from a date  earlier  than 12.9.1975.      It  is not in dispute that the Government  resolution  dated 23.5.  1974 did not come into force as far as the services  under the Corporation were concerned on the date on which it was passed by  the  Government.  It could only come-into  effect  after  the Corporation  passed its resolution on 12.9. 1975. When  once  the Corporation passed  the resolution dated 12.9. 1975 any promotion made thereafter in the services of the Corporation could only  be made   subject   to  the  reservation  policy  adopted   by   the Corporation.  No  doubt, the Corporation took some time  to  give effect  to  the said resolution and it gave effect to it  in  the case  of the 1st respondent and others only after it  passed  its resolution  dated  4.3. 1977. The mere fact that there  was  some delay  in  the  collection of statistics  and  other  particulars necessary  for giving effect to the resolution dated  12.9.  1975 could  not  have  the  effect  of  denying  the  benefit  of  the reservation  to the employees belonging to the  backward  classes concerned  with  effect from 12.9. 1975. We  are,  therefore,  of opinion that all promotions made subsequent to 12.9. 1975 in  the services  of the Corporation would be subject to the  reservation policy adopted by the Corporation on 12.9. 1975.     The  next  question  is whether the  1st  respondent  is entitled  to claim that her promotion should be  treated  as one  made  on  33.5. 1973 when  the  Government  passed  the resolution  and that she should be accorded  seniority  over and above those promoted between 23.5. 1974 and 12.9.  1975. It  is  no  doubt  true  that  in  the  resolution  of   the Corporation dated 12.9.1975 it is proposed to give effect to the  policy of reservation with effect from 23.5.  1974  but the   said  resolution  cannot  have   any  effect  on   the promotions which had already been made by 23.5.1974  because those  promotions  had  been made  in  accordance  with  the prevailing  rules  and were not made subject to  any  future resolution   which  the  Corporation  would  make.  In   the circumstances,  it  would be wholly unjust  to  disturb  the promotions   made  prior  to  12.9.1975  only  because   the Government had passed the resolution on  23.5. 1974 and  the Corporation  had passed the resolution on 12.9.1975 to  give effect  to  the  policy of reservation adopted  by  it  with effect  from  23.5. 1974. It is true  that  the  Corporation cannot  ordinarily take a place which will  be  inconsistent with its own resolution by which it proposed to give  effect to the policy of reservation with effect from 23.5.1974. But having  regard to the fact that a large number  of  innocent                                                   PG NO 684 employees   loyees  who had been lawfully  promoted  between 23.5.1974  to 12.9.1975 would be affected prejudicially,  if retrospective  effect  is  given to the  resolution  of  the Corporation  with  effect from 23.5. 1974, we feel  that  it would  be  unjust  to  issue  a  direction  to  review   all promotions  made  between  23.5. 1974 and  12.9.  1975.  The rights  acquired by them cannot be taken away merely by  the passing  of a resolution as it has been done in  this  case. While  it may be true that service conditions  of  employees may be modified retrospectively, no modification which would have the effect of depriving them of their vested rights can be  made retrospectively except under a valid law.  No  such law is placed before us in this case. The seniority of those who  had  been promoted during that period  cannot  also  be disturbed. In the circumstances the writ issued by the  High Court  has to be modified by directing the   Corporation  to give  effect  to the promotion of the  1st  respondent  from 12.9.1975. The 1st respondent shall, therefore, be deemed to

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have  been promoted with effect from 12.9.1975 and not  from 23.5.1974 as directed by the High Court.     The  appeal is allowed to the above extent. There  will, however, be no order as to costs.     P.S.S.                                    Appeal allowed.