V.S. Deshpande, C.J.
1. This is a petition filed by Miraj Kamgar Union. The Union represents the workmen of the Miraj Municipal Council (hereinafter referred to as 'Municipal Council'). There were disputes between the workmen and the Council in regard to the conditions of service. A settlement was reached earlier on 8-9-1972. Yet another settlement was reached on 2-2-1975 in Pending Case ID No. 1091 of 1971. Dissatisfaction amongst the workmen however, continued. There was a strike notice by the petitioner-Union on 27-10-1976. This was for increase in the posts as also revision in the pay-scales. As a result of the intervention of the Conciliation Officer, there was settlement in regard to even this fresh demand. The Municipal Council passed a resolution being Resolution No. 130 on 6-12-1977. The Council accorded its sanction to the draft settlement authorising the Chief Officer to sign the same. Clause 14 of the said settlement contemplated creation of 58 posts. The same included certain promotional posts. The Council expressly passed a resolution to create about 100 posts. The details of the posts and the pay-scales connected therewith were also sanctioned under another resolution of the said day.
2. Section 76 of the Maharashtra Municipalities Act, 1965 (hereinafter referred to as 'the Act') requires previous sanction of the Government for creation of additional posts. The said power appears to have been delegated by the Government to the Commissioner and Regional Director. Clause 14 of the settlement under which Council has accorded its sanction on 6-12-1977 under its Resolution No. 130 also included a condition to secure prior approval as required under section 76 of the Act. The Chief Officer, thereafter moved the Collector through the Sub-Divisional Officer for required sanction both (i) of the settlement of the Commissioner under the circular of the Government to that effect and (ii) sanction for the Government to that effect and (iii) sanction for the creation of new posts under section 76 of the Act. The Collector accorded his sanction to the same on 14-7-1978. The Commissioner and Regional Director accorded his sanction on 2-9-1978. It must be noted at this stage that the proposal of the Chief Officer in this behalf contained details of the settlement indicating the financial commitment involved in creation of new 58 posts. The letter also indicates how the proposal was in order even from the financial point of view. Note put up to the Commissioner before his sanction on 2-9-1978 also drew his pointed attention to this financial commitment involved.
3. The Chief Officer promoted ten persons to the newly created posts out of the 58 posts. These posts could be filled in only after selection by the State Selection Board and the Chief Officer sent his proposals for their promotion by his letter dated 11-4-1979. His letter shows that the proposal did involve supersession of some of the senior employees. This appears to be in consonance with the settlement as other factors than the seniority was required to be taken into account while making promotions. Detailed letter of the Chief Officer to the Selection Board contained reasons why some of the seniors were superseded and juniors were preferred.
4. Promotion order of the Chief Officer dated 23-3-1979 and his proposal dated 11-4-1979 were challenged. The Collector by his detailed order dated 15-6-1979 did not approve of these promotions for various reasons discussed in the said speaking order. He also proceeded on the assumption that no such proposals could have been effected without obtaining the sanction of the Regional Director and the Commissioner as required under section 76 of the Act, it being his view that sanction given by the Commissioner on 2-9-1978 was merely for permitting the Municipal Council to enter into settlement with its workmen under the provisions of the Industrial Disputes Act. As indicated earlier, such sanction was a must under the circular issued by the Government to the Municipal Councils. The Collector also thought that the posts can only be created for 6 months to start with. In view of this, the Chief Officer appears to have withdrawn his proposal dated 11-4-1979 and also cancelled the promotions effected under his order dated 23-3-1979. These posts were created initially for six months only ultimately by his order dated 25-8-1981, the Commissioner has accorded his fresh sanction for creation of 58 posts on permanent basis with effect from 19th January, 1980.
5. The petitioners-Union instituted a suit in the Civil Court after promotions of ten employees were cancelled by the Chief Officer pursuant to the order of the Collector dated 15-6-1979 and ad interim injunction was granted, but the same was vacated later. We were informed at the bar that suit also was subsequently withdrawn. Petitioners-Union thereafter lodged a complaint with the Industrial Court, Pune under section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. An ad interim injunction order was also granted by the said Court pending disposal of the said dispute. The rival Union challenged validity of this injunction order in this Court in Writ Petition No. 1944 of 1979. The same came up for hearing before one of us (myself) and Lentien, J., on 24-9-1979. Finding that six months period, for which promotions were intended under the impugned order dated 23-3-1979 had expired by that time, the complaint was found by this Court to go into the merits of the controversy raised. In view of expiry of period of six months this Court directed the Chief Officer 'to proceed with implementation of Clause 14 of the settlement afresh in accordance with law.' The proceedings before the Industrial Court were quashed as having become infructuous.
6. This petition was filed by the Union on 24-7-1980. Validity of two orders is challenged in this petition. The order of the Collector dated 19-1-1980 under which sanction was granted to the creation of 58 posts only for two months. Secondly, the order of the Chief Officer dated 29-5-1980 is challenged under which the Chief Officer submitted fresh proposal for promotion pursuant to the order of the Collector dated 19-1-1980, which in turn was the result of his earlier order dated 15-6-1979. Even before rule was granted by this Court on 24-9-1980, this Court made it clear on 12-9-1980 that any orders passed by respondents i.e. the Council, the Collector, and the State of Maharashtra during that pendency of this petition will be subject to this order. While granting rule on 24-9-1980, it was made clear that it was open to the Council to make fresh proposals in terms of Clause 14 of settlement for being considered by the Collector.
7. The main question that arises for consideration in this petition is whether fresh sanction of the Commissioner and Regional Director was necessary as required under section 76 of the Act, when the earlier order of the said Commissioner dated 2-9-1978 according sanction to enter into settlement also covers sanction for creation of 58 posts. Dr. Kulkarni, the learned Advocate appearing for the petitioner contends that earlier order of the Commissioner dated 2-9-1978 expressly accords sanction for 58 posts. The question of soliciting fresh sanction by the Chief Officer and according the same by the Commissioner could not have arisen and actual sanction accorded by the Commissioner on 25-8-1981 is infructuous and uncalled for. Mr. B.P. Apte, the learned Advocate appearing for the Council, on the other hand contends that settlement was signed by the parties on 29-9-1978, Clause 14 is a part thereof. One of the sub-clauses of the this Clause 14 expressly contemplates sanction of the Commissioner for creation of said posts. According to Mr. Apte creation of the post can never be legal and valid unless the Chief Officer moves the Commissioner for sanction after 29-5-1978 and sanction consent to that effect is accorded by the Commissioner.
8. After giving our anxious consideration to the point raised by Dr. Kulkarni and Mr. Apte, we are inclined to uphold the contention of Dr. Kulkarni. Close reading of the letter of the Chief Officer dated 29th May, 1978 and the papers enclosed therewith leaves no manner of doubt. In our mind that the financial implications of the additional posts were present to the mind of not only the Chief Officer but also Municipal Council. It appears that the Council passed two resolutions on 6-12-1977. Resolution No. 130 merely accorded its sanction to the draft settlement. It further requires the office to get the same sanctioned from the Director of Municipal Council. This resolution does not refer expressly to 58 posts created and the salary attached thereto. On that very day, another Resolution No. 124 was passed by the Council. This resolution refers to the Chief Officer's report dated 8-7-1977. The resolution then sanctioned creation of more posts. Names of the posts and educational qualifications required and pay scales are expressly mentioned in the said resolution. Mr. Apte contends that this is not resolution for creation of 58 posts. In fact, creation of 100 posts were sanctioned under this resolution. The fact that 100 posts were sanctioned under this resolution is not so relevant as the fact that 58 posts covered by the settlement, also can be said to have been included in this resolution together with pay-scales and required educational qualifications. Along with his letter dated 29th May, 1978, the Chief Officer also enclosed Resolution No. 130 and 124 passed by the Council on 6-12-1977 and in addition gave a table indicating financial implications of the said posts. Monthly additional salary towards these additional posts was claimed to be Rs. 21338/-. Yearly expenses were claimed at Rs. 2,56,056/-. It is noted thereunder that these expenses were 6.15 per cent of the increase in the revenue. Letter of the Sub-Divisional Officer as also of the Collector recommending the same to the Commissioner for his approval also emphasize how the financial commitment did not exceed the permissible percentage of the expected increase. It is thus clear to us that the letter of the Chief Officer was aimed not only at securing sanction of the Commissioner for entering into settlement with the workmen as required under the circular of the Government but also was aimed at securing his sanction under section 76 of the Act.
9. The omission to expressly refer 58 posts in the Resolution No. 130 is an omission compensation and made up by reference to more than 58 posts in the Resolution No. 124, which was passed before Resolution No. 130 was passed on that very day. The Council perhaps did not feel it necessary to repeal the same while drafting Resolution No. 130. By providing more posts the Council perhaps thought it proper to avoid passing another resolution in view of the requirement of the Council that then existed. The fact that the Chief Officer enclosed along with his letter dated 29th May, 1978, addressed to the Collector for soliciting sanction to Resolution Nos. 130 and 124 also shows that even according to him, the Resolution No. 124 was virtually a part of Resolution No. 130 to the extent of 58 posts covered by the said resolution. The contention of Mr. Apte, thus of the ommission in the Resolution No. 130 in our opinion, cannot be of any importance whatsoever.
10. It is true that the settlement signed on 29-9-1978 also contains a clause providing for the prior sanction of the Government. This clause apparently creates an impression as if fresh sanction of the Government for creation was really necessary. This is what appears to have weighed heavily with the Collector when he passed the exhaustive order on 24-4-1979, setting aside the promotions effected on 23-3-1979 by the Chief Officer and cancelling the Chief Officer's proposal to the State Selection Board dated of 11-4-1979. Two things cannot be ignored in this context. Sanction of the Collector required under section 76 of the Act is after all a matter of substance and not a matter of mere technical nature. Our attention was not drawn to any provisions or any circular or any principle which requires such sanction for settlement or creation of posts at any particular stage of settlement. What is required to be ascertained is whether, in fact, the Commissioner applied his mind to the requirement of posts and also was he satisfied or not with the need for creating 58 posts. On this question exhaustive letter sent by the Chief Officer to the Collector and Collectors' letter to the Commissioner and not presented by the subordinate officer in the office of the Commissioner, leave no manner of doubt that while granting approval to the settlement to be reached with the Union, the Commissioner accorded his sanction as required, after examining the financial implication therein. This sanction or approval cannot get vitiated merely because the same was accorded before settlement was actually signed. The sanction cannot also lose its efficacy merely because the Collector thought the Council thought otherwise while passing the exhaustive order dated 24-4-1979.
11. Not much can be made out of the fact that settlement signed on 22-9-1978 long after entering into the same, also contemplated sanction of the Government. It cannot be ignored in this context that draft of this settlement was prepared before 6-12-1977. This draft, which approved at the meeting of the Council on 6-12-1977. Even after securing such an approval to this settlement as required under the circular of the Government, the same was signed without any amendment or modification on 29-9-1978. It did not appear to have struck anyone that provisions in the said draft settlement in regard to securing sanction of the Government had at that time become redundant because of the sanction already accorded by the Commissioner on 2-9-78. The word appears to have remained unnoticed together with possible implications. This, to our mind, cannot affect the existence of sanction of the Collector accorded on 2-9-1978 which is a part of the record. The sanction accorded by the Commissioner on 25-8-1981 is obviously based on misunderstanding. He appears to have been misled by the erroneous order passed by the Collector on 24-4-1979, which necessitated initiation of fresh proposal by the Chief Officer and sanction of fresh resolution by the Municipal Council on 19-1-1980. Dr. Kulkarni appears to be right in contending that all these were redundant in view of the express sanction not only to the settlement but to creation of posts, also on 2-9-1978.
12. Our attention was not drawn to any provision of law or any principle, which prevents the Commissioner from according required sanction for settlement and for creation of posts by one and the same process and by one and same order. No infirmities can be assumed to have been introduced in this procedure because of the mere circumstance that both proposals were made by the Chief Officer and the same was accepted by the Commissioner in the composite manner.
13. The next question that arises for consideration is whether proposal made by the Chief Officer on 11-4-1979 is suffering from any infirmity. According to the Collector, the said proposal suffered from two defects. Firstly that the proposals were made without first securing sanction of the Commissioner as required under section 76 of the Act. We have exhaustively dealt with this point and as indicated above, this view is based on misunderstanding. The second ground is that the order dated 11-4-1979 for promotion was not based on any objective evaluation of the personnel concerned, claims of number of senior persons were ignored for promotion. This ground indicated in the order of the Collector was strongly urged before us by Mr. Apte, while opposing the writ petition of the petitioner. Admittedly the Council has not maintained the confidential reports of their employees. Admittedly, there is no written record in the office maintenance by higher officers in regard to the evaluation of the performance of the employees of the Council. That is what the Collector has also observed. The President of the Council and the Chief Officer were, in our opinion, justified in collecting the information about the performance and rely on the estimate of performance of their employees for the propose of promotion The mere fact that no written record existed by itself cannot relieve the Municipal Council of its obligation to give promotions to its competent employees. It is the duty of the President. Councillor and the Chief Office to make effort to find out individual calibre of the personnel employed on the establishment of the Council. It is true that the Collector does not seem to have been impressed by the assessment of the performance of the employees recorded by the Chief Officer in the report made by him along with the recommendations to the Selection Committee on 11-4-1979. Excepting for the opinion expressed by the Collector, we are unable to see why the said evaluation should be discarded or removed, letter of the Collector does not refer to any written representation by anyone making a specific complaint, against the said evaluation. Mr. Apte contends that the Chief Officer had taken charge only two months before the letter dated 11-4-1979 and he cannot give the correct opinion about the employee's performance to whom he recommended and whom he superseded. This, by itself however, cannot prevent the Chief Officer from collecting the required information from other senior employees then in the establishment of the Council. We have no reason to assume that the Chief Officer's assessments was just arbitrary and without any basis whatsoever. The fact that the same was supported by the President and other Councillors rather goes to lend weight to such evaluation, particularly when the Collector's order does not make any specific reference to any specific complaint or ground in regard to such evaluation. We do not see any reason why the report made by the Chief Officer to the Selection Committee should not be relied on. Its with drawal might have been justified because of the view taken by the Collector to the Commissioner that there did not exist sanction for creation of 58 posts itself. It is on the basis of this view that the Chief Officer was required to make fresh proposals for promotion. As we do not agree with the basic view in regard to the existence of the sanction for creation of posts, withdrawal of the first proposal shall have to be revived and second proposal shall have to be quashed. We think it is necessary to direct the Chief Officer to renew his recommendations dated 11-4-1979 and request the Selection Committee to consider the same on merits as indicated in the detailed proposal made by him.
14. Petitioners then contend that promoted personnel and others are actually discharging duties attached to the posts newly created in terms of the settlement dated 29-9-1978. Council is however, not paying them according to the pay-scales attached to these posts. As indicated earlier, promotions were given by the Chief Officer by his order dated 23-3-1979. They were expressly made operative only for six months. That the Chief Officer was wrong in this approach is besides the point. The relevant point is whether in fact, promotional orders were continued subsequent to the period of expiry of six months or not. Admittedly, there were no express orders continuing the said promotions. Averments in the petition before us show that promoted persons have been working in the posts to which they were promoted, though in fact, they are not shown to have been promoted and they are not paid the pay-scales attached to these posts of promotion. We cannot express any opinion on this controversy, in the absence of adequate material to support this contention. The Council shall have to verify whether in fact, 10 employees or other employees are being required to discharge duties of any of the 58 posts. We were also informed that only 10 posts out of 58 posts were required such sanction of the Selection Committee for promotion. Appointment to other posts of promotions thereto, does not require any sanction of the Selection Committee. It will be a mere question of fact if any one had actually discharged the work attached to the newly created 58 posts for which sanction was accorded. If in fact, they have worked therein, the Municipal Council will be under an obligation to pay them according to the pay scales attached to the same. The Council shall have to ascertain the fact and act accordingly. The Council will also ascertain whether, really for the remaining 48 posts, sanction of the Selection Committee was required or not.
15. Mr. Apte contends that the Chief Officer even could not have promoted 10 persons beyond six months, without the sanction of the Selection Board. Mr. Apte also contends that no promotion can be given effectively and no salary can be paid attached to the posts unless the Selection Committee approves of such selection after expiry of six months. We do not propose to express any opinion on this question. We direct the Council to examine the position in detail.
16. The result is that the petition succeeds. The Council will renew the proposals for promotion of 10 persons as indicated above 58 posts shall be deemed to have been sanctioned with effect from the date of signing the settlement on 29-9-78. Municipal Council to act accordingly.
Rule made absolute. In the circumstance of the case, there will be no order as to costs.