Summary of Judgement

The Judgement

(Per M. M. SATHAYE J) .

Rule. Learned counsel for the Respondents waive service. Rule made returnable forthwith. Heard finally by consent of parties.

INTRODUCTION

2. This group of petitions involve a common question arising in the situation where the urban area under Municipal Corporation is increased and certain villages, which are otherwise under the jurisdiction of Zilla Parishad (ZP), are included in the Municipal Corporation limits. Particularly how the teachers of Zilla Parishad schools (situated in such villages, which are included in Municipal Corporation limits) are to be treated. Their transfer / absorption in the Municipal Corporation schools, is the subject matter of debate. All the Petitioners, hundreds in number, are teachers working in primary schools run by either Pune Zilla Parishad, Raigad Zilla Parishad or Thane Zilla Parishad, seeking transfer to Pune Municipal Corporation (PMC), Panvel Municipal Corporation (Panvel MC), Thane Municipal Corporation (TMC), Kalyan-Dombivali Municipal Corporation (KDMC) or Ambernath Municipal Corporation, as the case may be.

GOVERNMENT RESOLUTIONS (GRs) INVOLVED

3. Broadly speaking, a Government Resolution (GR) dated 13 August 1990 (‘GR of August 1990’ for short) initially provided for transfer of primary teachers from Zilla Parishad to concerned Municipal Council / Corporation. Also Government Resolution dated 20 July 1999 (‘GR of July 1999’ for short) provided for various aspects including transfer of Zilla Parishad schools to the Municipal Corporation, on inclusion of certain villages in the corporation area, which was governing the field. However, the impugned Government Resolution dated 25 July 2019 bearing number jipaba-4817/pra.kra. 522/astha-14 (‘GR of July 2019’, for short) is now issued, providing for certain methodology for transfer/absorption of teachers in that particular Zilla Parishad into Municipal Corporation. The effect of this 25 July 2019 GR on teachers like the Petitioners, is under consideration.

NOTIFICATIONS AND THEIR EFFECTS INVOLVED

4. By Notification dated 21 December 2012, 1 village from Pune Zilla Parishad is included within the limits of Pune Municipal Corporation.

By Notification dated 29 May 2014, 34 villages from Pune Zilla Parishad are included within the limits of Pune Municipal Corporation.

By Notification dated 14 May 2015, 27 villages from Thane Zilla Parishad are included within the limits of Kalyan-Dombivali Municipal Corporation.

By Notifications dated 26 September 2016 & 29 September 2016, 29 villages from Raigad Zilla Parishad are included within the limits of Panvel Municipal Corporation.

By Notifications dated 4 October 2017 and 30 June 2021, 11 and 23 villages from Pune Zilla Parishad area respectively are included within the limits of Pune Municipal Corporation.

Also by government notification dated 24 October 2002, issued by School Education Department under provisions of Bombay Education Act 1947, the State sanctioned for Thane ZP primary schools in 6 villages to be brought within the local limits of Ambernath Municipal Council.

There is overlap of villages in some of the notifications.

ACTS INVOLVED

5. Maharashtra Municipal Corporation Act, 1949 (for short “MMC Act”), Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (for short “ZP Act”) and Maharashtra Village Panchayat Act, 1959 (for short “MVP Act”) are involved. FACTS

6. All petitioners are similarly situated, employed with either Pune ZP, Raigad ZP or Thane ZP, raising various arguments through their respective counsel, towards common goal, challenging the GR dated 25 July 2019, asserting that they have a vested right to be transferred / absorbed in respective Municipal Corporations (Pune, Panvel, Thane, KDMC or Ambarnath), because on the date of Notification/s, they were posted in ZP schools of those particular villages which were included in Municipal Corporation limits.

7. For convenience, facts in Writ Petition No. 9218 of 2021 are narrated below.

Petitioners are seeking a writ of Mandamus directing Zilla Parishad, Pune to immediately formally transfer the services of all employees working with Zilla Parishad schools in 11 villages on the date of Notification dated 4 October 2017 to the services of Pune Municipal Corporation. The Petitioners are further seeking direction to Pune Municipal Corporation to treat the employees working on the date of said Notification in ZP schools which have been included/absorbed within the Municipal limits as employees of PMC. The Petitioners are further seeking a writ of mandamus directing the State of Maharashtra to decide the proposal submitted by Pune Zilla Parishad on 12 February 2019 in accordance with July 1999 GR. The Petitioners are seeking to quash and set aside July 2019 GR, which, according to the Petitioners is violative of the earlier July 1999 GR and the Order of this Court dated 28 February 2019 in Writ Petition No. 2281 of 2019 - Sajid Khan Peer Khan & Anr. Vs. Malegaon Municipal Corporation & Ors. (hereinafter ‘Malegaon Mun. Corporation Case’ for short).

8. The grievance of the Petitioners is that they are not being absorbed in the services of the Pune Municipal Corporation despite the fact that on the relevant date, they were employed as primary teachers in Pune Zilla Parishad situated in 11 villages, prior to their inclusion within corporation limits under the concerned Notification. The Petitioners contend that if July 1999 GR is read with Malegaon Municipal Corporation Case, services of teachers working with Pune Zilla Parishad in the concerned 11 villages, on the date of Notification, are required to be transferred and included in the PMC. They contend that despite the number of correspondences with Respondents, till date, no action has been taken for necessary absorption of the Petitioners. They contend that by GR dated 27 February 2017, Respondent State issued detailed instructions about transfer of Zilla Parishad teachers within the district whereunder Pune Zilla Parishad has started transfer process of entire staff of teachers in District Pune. They further contend that some teachers, including some of the petitioners, have challenged the said GR. They contend that under the July 1999 GR, general directions and guidelines are issued as to transfer of establishments of Zilla Parishad in the villages which are proposed to be included in urban areas of the Municipal Corporation or Municipal council. Teachers are to be transferred in proportion to the classes with the Municipal Corporation by taking prior permission of respective teachers and only if there are excess teachers then they are to be transferred to other schools of Zilla Parishad.

9. They contend that in respect of a similar issue, some teachers in the employment of Nashik Zilla Parishad had also challenged transfer of some of the primary teachers to Nashik Municipal Corporation area. They contend that by Malegaon Municipal Corporation Case (supra), this Court has directed that only teachers from Urdu medium school from 7 villages which are included in Corporation area, are to be given choice and accordingly those teachers only should be accommodated in Malegaon Municipal Corporation. It is further contended that some of the Petitioners have raised a grievance that as per the order passed in Malegaon Municipal Corporation case, all the teachers from 11 villages which are included in Pune Municipal Corporation should be absorbed. They contend that the impugned GR of July 2019 is completely prejudicial, restricting the rights of the teachers to transfer their services to concerned Municipal Corporation and therefore, they have approached this Court. It is sought to be contended that so far as earlier July 1999 GR is concerned, it provides that teachers be transferred as per sanctioned strength of classes and thus it unequivocally gives choice to concerned teachers either to seek transfer to the concerned Municipal Corporation/ Council or to remain with Zilla Parishad. This GR, it is contended, is in sync with present demand of the Petitioners because they are serving in 11 villages which are now included in Pune Municipal Corporation. It is submitted that impugned GR of July 2019 is erroneous on the count that it first seeks a condition that only in case of excess teachers be identified with Zilla Parishad, and only such excess teachers are to be transferred to Municipal Corporation. It is submitted that the impugned GR gives an option to be called from all class of teachers, namely, primary and secondary to intimate as to whether they are interested to get transfer in the respective Corporation. It is contended that the impugned GR gives right to all teachers whether serving in transferred villages or not to accord consent and this is totally contrary to earlier GR of July 1999.

10. It is contended that the impugned GR of July 2019 curtails the right of the Petitioners to seek transfer to concerned Municipal Corporation. It is contended that the impugned GR of July 2019 is passed in complete ignorance of section 3(3)(b), 493 and Appendix IV of MMC Act and section 255 of ZP Act. It is contended that since geographical area of 11 villages stand excluded from jurisdiction of Zilla Parishad, the said area ceases to be an area within district as contemplated under section 4 of the ZP Act. It is contended that once the notification is issued, all the properties, assets and liabilities of the earlier local authority (Zilla Parishad in this case) situated in the villages which are included in the larger urban area, automatically vests in the concerned Corporation. Similarly, all contracts between such Zilla Parishad and Village Panchayat are deemed to be contracts entered into by the Corporation. It is contended that by applying the same analogy, the Zilla Parishad schools, assets and liabilities of such schools in such villages being included, get automatically vested in the Corporation. It is contended that same effect takes place in respect of the relationship between employer and employee (in the present case with the Zilla Parishad teachers). It is contented that on inclusion of 11 villages with Pune Municipal Corporation, all employees of Zilla Parishad schools in those villages automatically become employees of Pune Municipal Corporation and therefore, it is not open for the State Government to provide that seniority list of all teachers in the employment of concerned Zilla Parishad would be prepared and they would be given an option to be absorbed in the service of Pune Husen 17 901 WP-9218-2022(J) group.doc Municipal Corporation. It is contented that such a condition cannot be thrust upon. It is contended that once geographical area is declared as a larger area, the entire assets and liabilities of the earlier local authority vests automatically in the corporation.

Minute facts in other petitions may vary, but principle contentions are same. It is admitted position before us that all the Petitioners are similarly situated. Therefore detailed facts of each case are not iterated.

SUBMISSIONS ON BEHALF OF PETITIONERS

11. Learned Senior Advocate Mr. Bandiwadekar, made following submissions in support of petitioners in Writ Petition No. 6778 of 2023.

11.1) The Petitioners are permanent teachers working in primary schools of the Pune Zilla Parishad. The ZP schools in which the Petitioners were working, are situated in the 23 villages included in PMC. Therefore, as per the provisions of sec. 255[2][vi] of the ZP Act, the said schools of the ZP were required to be transferred to the PMC with all its assets, rights and liabilities. Accordingly by the Government Notification dated 30.6.2021, the State transferred all the assets, rights and liabilities of said schools of Pune ZP to PMC. Therefore, the services of the Petitioners working as teachers in primary schools situated in the said villages, which are now part of the PMC, are also required to be transferred to PMC.

11.2) The Petitioners are claiming the aforesaid reliefs in accordance with the provisions of July 1999 GR. This GR is issued with specific reference to the provisions of sec. 255[2][vi] of the ZP Act and it lays down, inter alia, that teaching staff should be transferred in proportion with the numbers of class rooms in the schools. The class rooms in the schools should be transferred along with the teachers, and only the class rooms should not be transferred. The State has issued impugned GR of July 2019, but this GR neither refers to nor supersedes the previous GR of July 1999. Similarly the impugned GR of July 2019 does not make any reference to the provisions under which it has been issued, in contrast with the previous July 1999 GR which specifically refers to the provision of section 255(2)(vi) of the ZP Act. Therefore, when the schools of ZP are transferred to PMC, the teaching staff ‘working in those schools only’ should be considered for transfer of their services to PMC. It is not necessary to consider all the teachers working in the primary schools of the entire ZP, as mentioned in the impugned GR of July 2019.

12. Learned Senior Advocate Mr. Godbole, made following submissions in support of petitioners in Writ Petition No. 9218 of 2021 with 9219 of 2021 & Writ Petition Stamp No. 24153 of 2022.

12.1) Notification dated 04.10.2017 u/s 3(3) of MMC Act was Husen 19 901 WP-9218-2022(J) group.doc issued extending the limits of PMC by expanding the limits of Larger Urban Area under Article 243-Q of the Constitution of India. On the same day Notifications were issued under ZP Act and MVP Act thereby deleting the areas of 17 villages included in PMC limits from the definition of District under ZP Act and Village under MVP Act. Consequently section 493 r/w Appendix IV of MMC Act became applicable. All Zilla Parishad Schools of Pune ZP in 17 Villages vested in PMC and all teachers in such school statutorily became employees of PMC including Petitioners. The impugned GR of July 2019 was issued regarding the purported guidelines to be followed for transfer of service of Zilla Parishad Teachers on account of inclusion of Villages in Municipal area and excluding Villages from Zilla Parishad Areas. This GR is without jurisdiction since it lacks executive power and it is eclipsed/ overridden by statutory provision in section 493 r/w Clause 5 of Appendix IV of MMC Act. The earlier GR of July 1999 was issued under the provision of section 255(2) (vi) of the ZP Act, which is applicable if the area of ‘District’ is altered to include it in area of another local authority like a Municipal Council under the Municipal Council Act, 1965. Section 255 doesn't apply to a Municipal Corporation under MMC Act. Section 493 read with Clause 5(c) of Appendix IV statutorily transfers the services of all teachers in ZP School in the Villages included in the city to the corporation. It provides that all officers and servants in the employment of the local authority (in the present context the same being the Zilla Parishad) immediately before the appointed day shall be entitled to receive same salaries and allowances and be subject to same conditions of service on the said date. The proviso further provides that the services rendered by the officers and servants before the appointed day shall be deemed to be service rendered in the Corporation. Thus, the said Act specifically makes a deeming provision as regards to the employment and therefore, the Petitioners along with other Applicants are deemed to be considered as the Teachers in the employment of the Municipal Corporation on the appointed day.

12.2) It is submitted that this Court in the case of Chhaya Pandurang Tathe and Ors. Vs. Pune Municipal Corporation and Ors. (Writ Petition No. 7135 of 2019) had an occasion to consider the effect of the above provisions in respect of the seniority of the teachers who are transferred to the Corporation and this Court has clearly held in paragraph Nos.50 to 54 that a conjoint reading of Section 493 read with clause 5 of Appendix IV of the MMC Act, clearly provides that services rendered by officers and servants in the employment of the Municipality or local authority immediately before the appointed date shall be the officers and servants employed by the Corporation under the said Act. It is further held that considering the said provisions and their effect, the services rendered by the primary teachers in the employment of Zilla Parishad shall also be considered while considering their seniority in the Municipal Corporation.

12.3) It is further submitted that this view has been affirmed by the Hon'ble Supreme Court in case of Maharashtra Rajya Padvidhar Prathamik Shikshak Seva Kendra Vs. Pune Municipal Corporation 1 . The Hon'ble Supreme Court in paragraph Nos .18 to 22 has explained the effect and purport of clause No.5 of Appendix IV of the MMC Act, and more particularly sub clause No.(c). The Hon'ble Supreme Court in the context of consideration of issue as to the seniority, has clearly held that the Clause 5 of Appendix IV starts with expression, 'continuation of appointments' thus, the said word indicates that it is without interruption and therefore, the services rendered by the teachers in the Zilla Parishad will remain in existence even after their absorption into the Pune Municipal Corporation.

12.4) It is therefore submitted that the Hon'ble Supreme Court has affirmed the view taken by this Court in relation to the issue as to the continuation of the seniority of the teachers transferred to the Pune Municipal Corporation and therefore, the said findings although not strictly on the point raised in the present Writ Petition, will conclusively point towards the submission of the present Petitioners.

12.5) It is further submitted that close perusal of clause No.5 and its various sub clauses clearly provides for all the necessary provisions and therefore, the contentions raised by the State and the ZPs that the Petitioners are not entitled as a matter of right to 1 2023 SCC Online SC 291 consider themselves as the employee of the Municipal Corporation must be rejected.

13. Mr. Nitin Gavare Patil, learned counsel for the Petitioners in Writ Petition No. 1552 of 2022 submitted as under.

13.1) As per July 1999 GR read with judgment of this Court Malegaon Mun. Corporation case, services of the teachers working with Zilla Parishad, as on the date of Notification, are required to be absorbed and included in the corporation. July 1999 GR provides for general directions and guidelines regarding transfer of Zilla Parishad establishments in villages which are proposed to be included in urban areas of the corporation. As far as the teachers are concerned, the said GR provides that teachers are to be transferred in proportion to the classes with the corporation by seeking option from the respective teachers employed in Zilla Parishad schools.

13.2) It is submitted that the Respondent-State unnecessarily complicated the issue of transfer of Zilla Parishad teachers to Municipal Corporation. If July 1999 GR and Malegaon Mun. Corporation’s case is considered holistically, no loss would occur to either Zilla Parishad establishment or serving teachers in the schools.

13.3) In fact by a letter dated 18 may 2022 the Pune Municipal Corporation has requested Pune Zilla Parishad not to relieve teachers working under it because admittedly there is dearth of teachers in Pune Municipal Corporation and for that even fresh appointment process was initiated. In view of the judgment of Hon’ble Supreme Court in the case of Maharashtra Rajya Padvidhar Prathamik Shikshak Seva Kendra Pramukh Sabha vs. Pune Municipal Corporation and Ors. (supra). It is observed that the services rendered by such officers and servants of the Zilla Parishad before the appointed date shall be deemed to be the services rendered in the service of the corporation.

14. Advocate Mr. Vivek Rane, appearing for Petitioners in WP No. 1468 of 2022 has submitted on the same lines as Mr. Gavare.

15. Learned Senior Advocate Mr. Pakale appearing for the Petitioners in Writ Petition No.2531 of 2021, Writ Petition (St.) No.14247 of 2017, Writ Petition (St.) No.12787 of 2017, Writ Petition (St.) No.12791 of 2017, Writ Petition (St.) No.12789 of 2017, Writ Petition (St.) No.14246 of 2017, Writ Petition No.2532 of 2021, Writ Petition No.6971 of 2019, Writ Petition No.7741 of 2021 and Writ Petition (St.) No.17854 of 2017 made the following submissions.

15.1. The Respondent- State while bringing the impugned GR of July 2019 has totally overlooked main issue involved about absorption of ZP teachers into Municipal Corporation. By issuing the impugned GR, the State has taken steps contrary to earlier GR of July 1999 as well as earlier GR August 1990. He has relied on the Husen 24 901 WP-9218-2022(J) group.doc Malegaon Municipal Corporation’s case to challenge the methodology suggested in the impugned GR of July 2019. He submitted that on the date of relevant notifications, the villages which are included within the limits of concerned Municipal Corporation, the villages stand deleted from the Zilla Parishad and became integral part of larger area of the concerned Corporation and all the properties, assets, schools etc. situated in those villages stand vested in the Municipal Corporation. Consequently RespondentState along with Zilla Parishad and Corporation only need to take ministerial or administrative steps to give to effect to such vesting and while doing so, they are not supposed to create new rights or take away or disturb the accrued rights in respect of the Zilla Parishad teachers working in the said villages. He submitted that a given school is running establishment consisting of fixed assets and liability and these ingredients are inseparable from each other. He submitted that the ownership of the Zilla Parishad in respect of these assets of the schools comes to an end and same gets vested in the Corporation for all the purposes. He submitted that by operation of law, on the date of notification the Petitioners/ employees acquired rights to get absorb in the concerned Municipal Corporation. He submitted that by impugned GR the State has changed the earlier eligibility criteria and has introduced a new regime of eligibility for getting to absorb in the Municipal Corporation, which is illegal.

15.2. He further submitted that the impugned GR cannot be Husen 25 901 WP-9218-2022(J) group.doc made applicable retrospectively and for such of the petitioners whose absorption in the Municipal Corporation has already been processed or has almost reached final stages, cannot be disturbed by impugned GR. He submitted that every statute or Rule is prospective unless made retrospectively expressly or by passing implication. He relied on following judgments in support of this contention. Regional Transport Officer, Chittoor Vs. Associated Transport, Madras (P) Ltd. 2 , P Mahendran Vs. State of Karnataka 3 , Union of India Vs. Tushar Ranjan Mohanty 4 , and State of Rajasthan Vs. Mangilal Pindwal 5 .

15.3. He then submitted that by the impugned GR the State is creating uncertainty and room for favoritism and as such the exercise is totally arbitrary in nature.

15.4. He submitted that there is no logic in inviting an option from all Zilla Parishad teachers. That such exercise is totally illogical and arbitrary. He submitted that the exercise provided under the impugned GR is not related to service conditions of the teachers and therefore Article 14 of the Constitution can not be invoked. He submitted that no employees other than employees working in the subject villages as on the date of notification, can claim absorption. He submitted that the GR issued under Article 162 of the 2 AIR 1980 S 1872 3 AIR 1990 SC 1989 4 1994 (5) SCC 450 5 1996(2) CurlR 926 Husen 26 901 WP-9218-2022(J) group.doc Constitution of India cannot be made retrospective. He then submitted that the impugned GR is ultra vires to the provisions of the ZP Act and MMC Act and cannot be applied to the Petitioners. The notifications extending the area under Municipal limits and absorption of certain villages are issued prior to the impugned GR and therefore, the impugned GR being subsequent cannot be made application to many of the petitioners whose services have vested with the Municipal Corporation. He submitted that the impugned GR is not published as provided under section 255 of the ZP Act. He relied upon judgment of the Hon’ble Apex Supreme Court in case Hukam Vs. Union of India6 (para 6 to 11)

15.5. He submitted that the exercise of the State has to be in conformity with Chapter IX of the ZP Act and Appendix IV and section 493 of the MMC Act as the same are complete code by themselves. He submitted that the introductory paragraph of the impugned GR says that it would apply prospectively. He submitted that the executive action of the State will always operate prospectively.

15.6. Relying on the judgment of Sashikala Vasant Baviskar Vs. Municipal Corporation of City of Jalgaon - 2005 (2) MhLJ, 1086, it is submitted that if the teachers are found working in the schools under the area on the appointed date, they will be liable to transfer to Corporation. He submitted that in many cases the consent 6 AIR 1972 SC 2427 Husen 27 901 WP-9218-2022(J) group.doc of the Petitioners have already been taken as contemplated under earlier GRs of August 1990 and July 1999. He submitted that these earlier GRs of August 1990 and July 1999 are still in force and hold the field.

15.7. He lastly submitted that the transfer of the Petitioners is not a part of their service condition but it is because vesting has taken place on account of inclusion of certain villages into Municipal Corporation and therefore, such teachers who were working on the date of the notification in such villages, must be absorbed in the Corporation.

16. Mr. Deshmukh appearing for Petitioners in WP/9189/2022 and WP/10776/2022 submitted as follows.

16.1) The effect of the concerned notification is that the petitioner teachers have become employees of the Corporation by legal fiction and their services are vested / absorbed in the services of the Corporation. Appendix 4 Clause 5(c) of Section 493 of the MMC Act, creates a legal fiction. It has to be taken to the logical end and it has to be given full effect as laid down in State of Bombay Vs. Pandurang Vinayak Chapalkar (Para 11) in (1953) 1 SCC 425. ‘Only officers and servants of the area which is included in the Municipal Corporation from the Zilla Parishad’ become the officers and servants of the Corporation and ‘not all the officers and servants of the Zilla Parishad’. If the contention that ‘all officers and servants of Zilla Parishad become employees of corporation’ is accepted then it will lead to absurdity.

16.2) Section 3(3) of the MMC Act read with Article 243Q of the Constitution of India clearly shows that it concerns in respect of the “area”. Even Section 493 of the MMC Act has to be read with Section 3(3) thereof and hence, while interpreting Clause 5(c) of the Appendix IV of Section 493, it has to refer to the ‘area’ which is included and not the entire Zilla Parishad. He relied upon Chhaya Pandurang Thate’s judgment (supra) and Rajya Padvidhar Prathamik’s judgment (supra) in support of his claim.

16.3) The provisions of the ZP Act continues to apply even to the area which is excluded from the Zilla Parishad and which is included in the Corporation area. Section 255 (a) of the ZP Act defines ‘existing local authority’, which means the area which is the included in the Corporation. Section 255 (2-A) thereof specifically deals with employees of existing local authority. Hence Section 255(2A) of the ZP Act read with Section 5(c) of Appendix IV of 493 of the MMC Act clearly shows ‘only employees of the included area in the Corporation’ is required to be taken into consideration. In the absence of specific notification or order under Section 255 of the ZP Act, vesting of the petitioners in the Corporation continues and the Petitioners cannot be transferred outside the Corporation area.

16.4) The impugned GR of July 2019 is issued in excess of power as it deals with entire ZP area and it is therefore without jurisdiction. There is apparent conflict in the impugned GR of July 2019 and earlier GRs of 1990 and hence there cannot be the inconsistent Government Resolutions in the same field and therefore impugned GR of July 2019 is bad in law.

16.5) When services of the Petitioners are absorbed / vested by specific statutory provisions under the MMC Act, it can not be taken away by a GR or notification and for this reason also, the impugned GR is bad in law.

SUBMISSIONS ON BEHALF OF STATE

17. Mr. Samant, leaned AGP argued in support of the State and made following submissions.

17.1) The matters involve the modalities to be followed while effecting transfer of School Employees of the area which is transferred from Zilla Parishad to Municipal Corporation after issuance of Notification of u/s.3 (3) of the MMC Act. The matter revolves around two GRs dated 20/07/1999 and GR dated 25/07/1999. Cases can be bifurcated on the basis of the date of transfer of the area from ZP to Municipal Corporation.

17.2) Section 3(3) of the MMC Act, has to be read in consonance with relevant provisions of the ZP Act. The MMC Act does not specifically lay down the modalities of transfer of employees of Schools of the concerned area from ZP to Corporation. However the ZP Act provides for the State Government to prescribe the procedure in case of transfer of ZP employees to an area outside the ZP. (Refer to Section 25(2-A) of the ZP Act). Therefore the power of the State Government to issue appropriate Government Resolution cannot be disputed. Initially GR dated 15 December 1984 was holding the field which has been confirmed by this Court in the case of Shashikala Vasant Baviskar (supra), especially para No. 7 thereof.

17.3) Later on GR of July 1999 was brought into force. This GR had only two provisions namely that the number of teachers to be transferred should be in proportion to the number of classes to be transferred and prior consent of the concerned teacher was mandatory. This indicates that the July 1999 GR gave complete freedom of choice to the teachers of ZP whether to join the services of Corporation or not.

17.4) However now, impugned GR of July 2019 has changed the policy substantially. Firstly the said GR gives the choice to the concerned Corporation whether it requires teacher from ZP Area. Secondly, if the Municipal Corporation requires the teacher, then the ZP has to ascertain whether it has surplus teachers for transferring to Corporation. Thirdly, prior consent of the teachers to be transferred is required. And fourthly, if more number of teachers are willing to go, then seniority list is to be prepared and teachers to be transferred as per the list.

17.5) So, now the impugned GR of July 2019 balances the rights of Corporation, Zilla Parishad and Teachers. It overrides the July 1999 GR, by implication, as both operate in the same field. Therefore July 2019 GR will prevail over July 1999 GR as the Government is bound to be aware of earlier GR while issuing subsequent GR. Both GRs pertain to the procedure of transfer.

17.6) No person can claim vested right in any kind of procedure. Therefore, July 2019 GR would be applicable to all such cases where transfer of teachers from ZP to Corporation was incomplete on the date on which the said GR brought in force. Therefore ZP in each case, has to specify whether the transfer of teachers from ZP to Corporation was complete before the July 2019 GR or not. Accordingly, the respective cases can be decided.

SUBMISSIONS ON BEHALF OF RAIGAD ZILLA PARISHAD

18. Mr. Gavnekar, learned Senior Advocate made following submissions in support of Respondent Raigad Zilla Paraishad.

18.1) It is submitted that the services of the Petitioners are governed by Chapter XIV of The ZP Act, which provides for “provisions as to service”. Section 243 empowers the State Government to determine initial strength and composition of Officers posted under Zilla Parishads. Section 243-A provides power to State Government to lay down staffing pattern etc. Section 248 provides for ‘Recruitment & Conditions of Service of Persons’ serving in Zilla Parishad in different classes. The services of the Petitioners are governed by The Maharashtra Zilla Parishads (District Services Rules, 1968 and The Maharashtra Zilla Parishads District Services (Recruitment) Rules, 1967.

18.2) It is submitted that the recruitment and control on the services of the employees of the Zilla Parishads (including Petitioners) solely vest in Zilla Parishad, save and except to determine the strength and provide staffing pattern as mentioned earlier. The Petitioners thus constitute one Class namely “Assistant Teacher” recruited and appointed by Zilla Parishad. At the relevant time, namely when Notification dated 16/05/2016 was issued, they were ‘merely posted’ in the Villages, which were to be included in Panvel Municipal Corporation. By merely posting them in particular area, they do not constitute a separate class. Hence, prayer of the Petitioners, if granted would be in violation of equal rights granted under Article 14 of the Constitution of India to other Assistant Teachers and therefore, the said prayer cannot be granted.

18.3) The relevant provisions with regard to Constitution of Zilla Parishad are as follows. Section 4 provides that every local area formed and constituted into a District but excluding the limits of Municipal Corporation, Municipalities etc. shall be a District for the purpose of Zilla Parishad Act. Section 6 provides for establishment of Zilla Parishad for every District. Chapter XV provides for alteration of boundaries of District. Section 254 confers power on the State Government on the recommendation of Zilla Parishad or suo-moto to alter the limits of any District. Section 255 further empowers the State Government to make suitable provisions by Order when District is altered. Sub-Section 2 of Section 255 provides in Clause (vi), the transfer, in whole or in part of the assets, rights, liabilities etc. Clause (ix) provides for continuance within the ‘area of existing local authority’ of all or any appointments, notifications, notices etc. Sub-Section 2-A of Section 255 empowers the State Government by General & Special Order published in such manner as it deems fit to provides for transfer or reemployment of any employee of an existing local authority, to or by, any such transferee or the termination of services or any employees of an existing local authority and the terms and conditions applicable to such employees after such transfer or re employment or termination. Sub-Section 3 of Section 255 provides for vesting of assets, rights and liabilities of existing local authority (Zilla Parishad) to the Transferee.

18.4) It is thus submitted that unless the State Government exercises power vested in it under Section 255, the Petitioners cannot claim any right to maintain the present Petition and the same is liable to be dismissed.

SUBMISSIONS ON BEHALF OF PUNE ZILLA PARISHAD

19. Mr. Kapadnis, learned counsel for the Respondent Pune Zilla Parishad has made following submissions in support of its case in all petitions, based on common Affidavit in Reply filed in Writ Petition No. 1468 of 2022 and Affidavits in Reply filed in Writ Petition No: 9218 of 2021 and Writ Petition No: 9219 of 2021.

19.1) The impugned GR of July 2019 has been issued by the State government as per the provisions of Article 162 of the Constitution of India. Paragraph 5(c) of the Appendix IV of the MMC Act provides for considering "such officers or servants on the establishment of the Local Authority on the appointed day, to be treated as service rendered being officer and servant of the Municipal Corporation Act as the case may be." The aforesaid provision is completely silent as to the procedure to be followed and also the process of identification of "such" officers and servants.

19.2) This ‘gap’ ought to be filled in by the state Government by resorting to the provisions of Article 162 of the Constitution of India. Therefore, the State Government, by virtue of clause 23 of the Appendix IV of the MMC Act is also empowered to take steps to remove difficulties, in implementation of the said Act. In view of clause 23 of the Appendix IV, the State Government, had to remove the difficulties faced by the teachers who did not want to go in Pune Municipal Corporation for want of any reason.

19.3) The impugned GR of July 2019 merely gives choice to the servants and officers to join employment in accordance with their preference, merit and seniority. The word ‘such’ is consciously appearing in 1st proviso to clause ‘5c’ of the Appendix IV and identification of ‘such’ servants and officers amenable to be transferred to Municipal Corporation is provided in the impugned GR of July 2019.

19.4) In support of State’s executive power, he relied upon paragraph 20 of the Judgment of the Hon'ble Apex Court in the case of Bishambhar Dayal Chandra Mohan and Others Versus State of Uttar Pradesh and Others reported in (1982) 1 SCC 39.

19.5) Therefore since no inconsistency or repugnancy is proved by the Petitioners, between the impugned GR of July 2019 and clause 5(c) of the Appendix IV, no interference is called for while exercising powers under Article 226 of the Constitution of India.

SUBMISSIONS ON BEHALF OF PANVEL MUNICIPAL CORPORATION

20. Learned counsel Mr. Aradhye made following submissions in WRIT PETITION (ST) NO. 17854 OF 2017

20.1) The impugned Notifications pertain to the exclusion of 29 Villages from the Panvel Block of Raigad District and their merger with the Panvel Municipal Corporation with effect from 01/10/2016. After the Publication of the aforesaid Notifications, the process of transfer of 51 Primary Schools from 29 Villages is not yet complete and the said process of transfer is pending. The service related issues of the teachers from the aforesaid 51 Primary Schools pertain to the Zilla Parishad, Raigad. Since, the process of transfer/ handing over of the said 51 Primary Schools is not yet complete, the Petitioners/teachers from the said Schools are in the employment of Zillah Parishad, Raigad.

20.2) On 12/12/2023, the Administrator and the Commissioner, Panvel Municipal Corporation had addressed letter to the Chief Executive Officer, Zilla Parishad, Raigad thereby submitting the proposal in respect of transfer of the properties (School Building/Open space, including available material) of the 51 Primary Schools free of cost to the Panvel Municipal Corporation. It was informed by the Panvel Municipal Corporation that out of 316 sanctioned posts of teachers, 288 teachers are actually functioning. It was informed that out of these 288 teachers, there are 124 teachers who are more than 50 years in age. It was suggested that the services of these 124 teachers should be managed by the Zilla Parishad, Raigad and the services of 164 teachers be transferred to the Panvel Municipal Corporation so as to avoid any Academic loss of any students. It was also suggested that Panvel Municipal Corporation has no objection to accommodate the services of these 164 Primary Teachers as an employees of the Panvel Municipal Corporation. It was also suggested that after transferring the services of these 164 Primary Teachers, the Corporation can fill up remaining 154 posts of Primary Teachers through "Pavitra Portal"

ANALYSIS, REASONS AND CONCLUSION

21. At the outset, it is necessary to note that prayers in different petitions are differently worded. In most of the petitions the impugned GR of 25 July 2019 is challenged. In addition or independently, directions are sought to ZP to transfer the Petitioners to respective Municipal Corporation, or not to transfer Petitioners’ services until their services are finally transferred / absorbed in Municipal Corporations, or not to alter their service conditions because the Petitioners claim to have vested right to be transferred to Municipal Corporation. Directions are sought to Municipal Corporations to treat the Petitioners as their employees. Transfer orders already issued are also sought to be quashed and set aside. Communications between Respondent authorities about preparation of draft seniority list (as per impugned GR or otherwise) are sought to be challenged. Prayers are made not to appoint new teachers in ZP schools. In some writ petitions, GR dated 12 September 2017 is challenged. But this GR provided for a temporary change in the policy, only for current academic year (2017-18) about transfer of Zilla Parishad teachers within the district to be completed by the end of September 2017.

22. In short, all the petitions challenge the actions of the Respondent Authorities adopted at various stages pursuant to the inclusion of certain villages in ZP area into respective Municipal Corporation, including actions under impugned GR of July 2019.

23. Now by the impugned GR of July 2019, a methodology is evolved for effecting such transfer of ZP teachers working in the schools of such villages that are included in a particular Corporation area. The impugned GR of July 2019 has sought to streamline the whole process. This is done by way of an executive action and hence, as on today, this executive action is collectively under challenge.

24. Now, let’s begin with finding out what the impugned GR of 25th July 2019 actually seeks to do. Perusal of its preamble shows that the issue of ‘providing methodology to be adopted for transferring the ZP teachers, when some villages are included in the corporation limits in the services of the Municipal Corporation,’ was under the consideration of the government and consequently, the impugned GR has been issued. It broadly provides as under :

i) An overview should be taken of how many teachers / posts are available in the concerned ZP, which are affected by increase in municipal limits.

ii) The CEO of the concerned ZP should enquire with the Commissioner of the concerned Municipal Corporation as to how many teachers are required in the Corporation schools and after such number is ascertained, if there are any surplus teachers with ZP, their services be absorbed/transferred to concerned Municipal Corporation, as per procedure explained in the GR itself.

iii) Option/consent/willingness should be obtained from all ZP teachers as per their category and from this, a seniority list should be prepared and published, of the teachers who have given such option/consent for transfer of services and then services of such teachers should be transferred to the municipal corporation, according to the list prepared. The transfer order be implemented after the end of the academic year.

iv) Such teachers from the ZP schools whose services are not transferred in this process to the municipal corporation but they are transferred to other ZP schools, they be given a concession from transfer for a period of one year; however such teachers will be liable to be transferred as per the regular policy of ZP from the next year.

25. Having understood as above, it is clear that the State is trying to put in place ‘an all inclusive methodology’ by bringing all the ZP teachers on a level playing field by preparing a list after duly considering their consent/willingness, category and seniority. Thereafter it is provided that surplus teachers should be transferred to corporation, as per the procedure explained in the GR itself. Thereafter the teachers from the list, should be transferred to corporation. The State is being cautious by not implementing midyear transfer but it is specifically provided that transfer will be effected at the end of academic year. It means that the interest of students, who might suffer due to mid-year transfer of teachers, is also protected. And then finally those who are not absorbed / transferred to corporation and are transferred within ZP areas, are also given concession for 1 year. The requirement of the Municipal Corporation is also being taken care of. Plain reading of the impugned GR indicates that it passes the tests of reasonableness and proportionality. The scheme is equitable and taking due care of all the stakeholders.

26. Having anxiously and carefully heard the arguments of both the sides, the first moot question that arises for our consideration in this matter is - “whether a Zilla Parishad teacher, posted / working in a ZP school in ‘a particular area’ on the date of notification by which such area (village or part thereof) is included in municipal limits, gets a vested right to be absorbed / transferred in that particular municipal corporation ?”

27. Let’s first consider the ZP Act. Perusal of provisions of the ZP Act shows following legal position.

The services of the ZP teachers are governed by Chapter XIV of The ZP Act, which provides for “provisions as to service”. Section 243 of the ZP Act empowers the State Government to determine initial strength and composition of Officers posted under Zilla Parishads. Section 243-A of the ZP Act provides power to State Government to lay down staffing pattern etc. Section 248 of the ZP Act provides for “Recruitment & Conditions of Service of Persons” serving in Zilla Parishad in different classes. The services of the teachers such as the petitioners, are governed by The Maharashtra Zilla Parishads (District Services Rules, 1968 and The Maharashtra Zilla Parishads District Services (Recruitment) Rules, 1967. The recruitment and control on the services of the employees of the Zilla Parishads (including teachers such as petitioners) solely vest in Zilla Parishad, save and except to determine the strength and provide staffing pattern as mentioned earlier. The Petitioners thus constitute one Class viz. ‘Assistant Teacher’ recruited and appointed by Zilla Parishad. At the relevant time of Notification, teachers such as Petitioners were ‘merely posted’ in the Villages, which were to be included in Municipal Corporation. By merely posting in a particular area, they do not constitute a separate class.

28. Chapter XV provides for alteration of boundaries of District. Section 254 confers power on the State Government, on the recommendation of Zilla Parishad or suo-moto, to alter the limits of any District. Section 255 empowers the State Government to make suitable provisions by Order when District is altered. Section 255(2) - Clause (vi) provides for the transfer, in whole or in part of the assets, rights, liabilities etc. Clause (ix) thereof provides for continuance within the ‘area of existing local authority’ of all or any appointments, notifications, notices etc. Section 255(2A) empowers the State Government by General & Special Order published in such manner as it deems fit, to provide for transfer or reemployment of any employee of an existing local authority, to or by, any such transferee or the termination of services or any employees of an existing local authority and the terms and conditions applicable to such employees after such transfer or re-employment or termination. Section 255(3) provides for vesting of assets, rights and liabilities of existing local authority (Zilla Parishad) to the Transferee.

29. Therefore it is clear from an overview of the aforesaid provisions that the right of the ZP teachers at the time of notification, is the one created under the ZP Act.

30. Now let’s consider section 493 and Appendix IV of the MMC Act, which reads thus :

“493 – Transitory provisions.

The provisions of Appendix IV shall apply to the constitution of the Corporation and other matters specified therein.”

Appendix IV, Part I, Clause 5 of the MMC Act reads thus-

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

(a) any appointment, notification, notice, tax, order, scheme, licence, permission, rule, bye-law or form made, issued, imposed or granted under 1 [the Maharashtra Municipalities Act 1965] or any other law in force in any local area constituted to be a City immediately, before the appointed day shall, in so far as it is not inconsistent with the provisions of this Act, continue in force until it is superseded by any appointment, notification, notice, tax, order, scheme, licence, permission, rule, bye-law, or form made, issued, imposed or granted under this Act or any other law as aforesaid, as the case may be;

(b) all budget estimates, assessments, valuations, measurements, and divisions made under 1 [the Maharashtra Municipalities Act, 1965], or any other law in force in any area constituted to be a City immediately before the appointed day shall in so far as they are consistent with the provisions of this Act, be deemed to have been made under this Act;

(c) all officers and servants in the employ of the said municipality or local authority immediately before the appointed day shall be officers and servants employed by the Corporation under this Act and shall, until other provision is made in accordance with the provisions of this Act, receive salaries and allowances and be subject to the conditions of service to which they were entitled to subject on such date:

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

Provided further that it shall be competent to the Corporation to discontinue the services of any officer or servant who, in its opinion, is not necessary or suitable to the requirements of the municipal service, after giving such officer or servant, such notice as is required to be given by the terms of his employment and every officer or servant whose services are so discontinued, shall be entitled to such leave, pension or gratuity as he would have been entitled to take or receive on being invalided out of service if this Act had not been passed. 1. These words and figures were substituted for the words and figures "the Bombay District Municipal Act 1901, or the Bombay Municipal Boroughs Act, 1925" by Mah. 29 of 1982, s. 8(iii), (w.e.f. 4-8-1982).

31. Plain reading of clause 5(a) shows that it provides for continuation of appointments, taxes, budget estimates etc. We are concerned with ‘continuation of appointments’. Simply read, it provides that any appointment made under any other law in force (in the present case, the ZP Act) in ‘any local area’ constituted to be City immediately before the appointed day, shall continue in force until it is superseded by any action under the MMC Act. This provision makes a reference to ‘local area’. But these words are conspicuously missing in clause 5(c), which when simply read, provides that ‘all servants in the employment of the local authority’ (in the present case, a ZP) immediately before the appointed day, shall be servants employed by the Corporation under the MMC Act. This section does not say ‘servants in any local area’. Therefore obviously, in our considered opinion, the transition provided under the MMC Act does not create any vested right or statutory employment in such ZP teachers working in a particular local area that is included on the date of notification. A right created, if at all, is in ‘all officers or servants’ in the local authority i.e. the ZP. The Petitioners are thus like any other teacher in the Zilla Parishad and do not have any special status. For the same reason there is no issue of service condition involved and resultantly there is no question of discrimination or violation of Article 14 involved. Only if the action of the State takes away any vested right, then such action can be invalidated at the request of the Petitioners. Unless there is a legal right and legal duty to post the petitioners in the corporation school, a writ of mandamus cannot be issued to the Corporation. The correctness of the State's action is not the only issue but the key question is also whether a writ of mandamus can be issued in favor of the Petitioners.

32. It is clear from reading of the concerned provisions of both the ZP Act and MMC Act that no procedure is provided in the Acts to select amongst the teachers of a particular ZP when part of ZP area is included in the municipal area and is excluded from ZP or that District. It is precisely this ‘void’ or ‘lack of provision’ that the State has tried to fill in by issuing the executive direction under the impugned GR of July 2019.

33. The power of the State in issuing executive directions under Article 162 of the Constitution is no more res integra. It has been considered many times. As rightly pointed out by the learned counsel for the Pune Zilla Parishad, in Bishambhar Dayal Chandra Mohan and Others Versus State of Uttar Pradesh and Others reported, 7 the Hon’ble Supreme Court, while dealing with an argument against the State’s executive power, has held as follows :

"Even assuming that the Impugned teleprinter message 7 (1982) 1 SCC 39 is not relatable to the two Control Orders, the State Government undoubtedly could, in exercise of the executive power of the State, introduce a system of verification on movement of wheat from the State of Uttar Pradesh to various other States at the check-posts on the border and place restrictions on inter-district movement of wheat by traders on private account within the State. The executive power of a modern State is not capable of any precise definition. In Ram Jawaya Kapur State of Punjab, Mukherjea, C..J., dealt with the scope of Arts. 73 and 162 of the Constitution. The learned Chief Justice observed that neither of the two Articles contains any definition as to what the executive function is or gives an exhaustive enumeration of the activities which would legitimately come within its scope, It was observed: "Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away". It is neither necessary nor possible to give an exhaustive enumeration of the kinds and categories of executive functions which may comprise both the formulation of the policy as well as its execution. In other words, the State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. Otherwise, the administration would come to a standstill".

[Emphasis supplied]

In a recent judgment of Indian School Jodhpur Vs. State of Rajasthan 8 , the Hon’ble Supreme Court has reiterated settled law 8 (2021) 10 SCC 517 about State’s executive power as under :

“113. A fortiori, even the argument of the respondents relying upon the existence of executive power under Article 162 of the Constitution, ought to fail. It is well-established position that the executive power of a State under Article 162 of the Constitution extends to the matters upon which the legislature of the State has competency to legislate and is not confined to matters over which legislation has already been passed. It is also well settled that the State Government cannot go against the provisions of the Constitution or any law. The subject of determination of fee structure and whether it entails in profiteering, is already covered by the legislation in the form of the 2016 Act and the Rules framed thereunder. It is not as if there is no enactment covering that subject or any incidental aspects thereof. The 2016 Act, which in itself is a self-contained code on the said subject, not only provides for the manner in which the school concerned ought to finalise its fee structure, but also declares that the fee so finalised either by consensus or through adjudication mode shall be binding on all concerned for a period of three academic years. In any case, determination of fees including reduction thereof is the exclusive prerogative of the management of the private unaided school. The State can provide independent mechanism only to regulate that decision of the school management to the extent that it does not result in profiteering and commercialisation.”

[Emphasis supplied]

34. It is therefore clear that so long as the actions of the State are not against the provisions of the Constitution or any law, its executive powers can not be circumscribed. The subject matter is well within the competence of the State to legislate, be it under the ZP Act or MMC Act. In the facts of this case, we fail to understand how the State has gone against the Constitution or any law, in providing for a wholesome methodology to deal with transfer of teachers from Zilla Parishad to Municipal Corporation when particular villages are included within municipal limits. We have already explained what the impugned GR provides and how it takes care of all the stakeholders including the ZP teachers, ZP school students and the municipal corporation schools. We therefore hold that the impugned GR of July 2019 is issued well within the powers of the State under Article 162 of the Constitution of India.

35. The question that remains now is whether the State is within its power to issue such an executive order when earlier GRs of August 1990 and July 1999 are in place and in the teeth of Judgments of this Court, relied upon by the Petitioners. Let’s consider it.

36. Firstly, the judgment of this Court, in the case of Malegaon Municipal Corporation (supra) is heavily relied upon by all the Petitioners. We have carefully considered the said Judgment. It did not at all consider the issue involved in this group of petitions. This Judgment was delivered on 28 February 2019 and the impugned GR is issued on 25 July 2019. Obviously therefore impugned GR was not in existence for this Court’s consideration in Malegaon Municipal Corporation’s case (supra). Here in this group of petitions, what is being extensively argued, is alleged conflict between the July 1999 GR vis-a-vis impugned GR of July 2019. That was not before this Court when Malegaon Municipal Corporation’s case was argued. What was under consideration in that case, was a communication of Department of Rural Development Government of Maharashtra dated 8 February 2019 to the Chief Executive Officer of Nasik Zilla Parishad and a communication dated 30 January 2019 addressed by CEO of Nasik ZP seeking guidance about transfer of teachers. Ultimately in the said Judgment, the CEO (ZP) was directed to ignore the communication dated 8 February 2019 and act strictly in accordance with earlier policies of the government. It is material to note that the matters and grievances relating to service conditions of the transferred teachers therein, were directed to be decided independently of the choice and willingness. Even in this judgment, the existing policy of State was directed to be followed. However today, as is clear from the aforesaid detailed narration, a wholesome policy is already in place, which is impugned. In that view of the matter, the Malegaon Municipal Corporation’s case will not advance the case of the petitioner

37. Next Judgment relied upon by all the Petitioners is by the Hon’ble Supreme Court in Maharashtra Rajya Padvidhar Prathamik Shikshak’s case, by which Judgment of the Division Bench of this Court in the matter of Chhaya P. Tathe & 74 others Vs. Pune Mun. Corporation, Maharashtra Rajya Padvidhar Prathamik Shikshak Va Kendra Pramukh Sabha, Pune ZP and & State 9 was confirmed. The very beginning paragraph of this Judgment shows what was under 9 Writ Petition No. 7135 of 2019 order dated 1 October 2021 consideration of the Hon’ble Supreme Court. It reads thus :

“Leave granted.

2. The issue that requires our consideration in this case is whether the services rendered by primary teachers while in the service of the Zilla Parishad (hereinafter "ZP") deserves to be counted towards their seniority after the transfer and merger of their services into the Pune Municipal Corporation (hereinafter "PMC")?”

[Emphasis Supplied]

38. It is therefore clear that both, Division Bench of this Court and the Hon’ble Supreme Court, were considering the question of interse seniority between teachers transferred from ZP schools and existing teachers of Municipal Corporation. It was a question arising AFTER the teachers from the ZP schools were transferred to Corporation. The issue of how and under what methodology the ZP teachers must be transferred to Municipal Corporation was not under consideration. What is under our consideration today in this group of petitions, is a fundamental issue of earlier stage. In that view of the matter, both the said judgments of Maharashtra Rajya Padvidhar Prathamik Shikshak’s case and Chhaya P. Tathe’s case do not advance the case of the Petitioners.

39. Now let’s consider the argument about conflict or co-existence of earlier GRs of 1990 & 1999 and the impugned GR of 2019. Perusal of the earlier GR of the July 1999 makes it clear that it is issued under the provisions of section 255(2)(vi) of the ZP Act. It covers many subjects such as education, health services, veterinary services, ZP property transfers to be made at current market value, recovery of pending dues on ZP properties etc. This is not a GR specifically issued dealing with only transfers of ZP teachers, as is the case with the impugned GR of July 2019. Under the subject of education, the said GR of July 1999 only provides that classrooms be transferred with teachers, teaching staff should be transferred in proportion to classes in the school and prior permission of teachers should be taken. It also provides that if any teachers oppose transfer to municipal corporation, such teachers should be absorbed elsewhere. Plain reading of this GR shows that it is general in nature. This GR is also not issued under provisions of MMC Act. The Petitioners have based their case mainly on the provisions of section 493 r/w. Annexure IV, clause 5(c) of the MMC Act. This GR of July 1999 is not at all issued under those provisions. As already explained, the impugned GR of July 2019 specifically provides for a full fledged methodology for streamlining effective transfers of ZP teachers to Municipal Corporation, taking into consideration interests of all stakeholders. It does not make any reference to provisions of MMC Act. An executive power of the State to streamline the procedure and provide a wholesome methodology to deal with transfers of ZP teachers to the concerned Municipal Corporation, can not be read in conflict with earlier GR of July 1999, which merely provided for general subject of education amongst other subjects. In that view of the matter, we are of the considered opinion that the impugned GR of July 2019 and the earlier GR of July 1999 operate in different spheres of specifics, though in common larger field and hence there is no question of any conflict between them. They can co-exist.

40. It is argued that the impugned GR of July 2019 is contrary to earlier GR of 13 August 1990. Perusal of said GR of August 1990 shows that it speaks about classification of ZP teachers prior to their transfer to municipal corporation. If that be so, what is now provided under the impugned GR of July 2019 is in fact detail procedure in line with the classification envisaged. Therefore no conflict can be seen between the impugned GR and the GR of 13 August 1990.

41. It is lastly argued that every statute / rule is prospective unless made retrospective expressly or by necessary implication. It is contended that the impugned GR can not be applied retrospectively, because the notifications altering boundaries of the municipal corporations are prior to the impugned GR. This argument again comes to whether the notifications created any vested right. We have dealt with this argument and have rejected the same.

42. Some of the Petitioners have relied upon judgments of Regional Transport Officer Chittoor Vs. Associated Trasport Madras, P Mahendran Vs. State of Karnataka, Union of India Vs. Tushar Ranjan Mohanty and State of Rajasthan Vs. Mangilal Pindwal (supra) in support of this proposition. We respectfully agree with the proposition of law, as laid down in the aforesaid judgments. There can not be retrospective application of a rule unless made retrospective expressly or by necessary implication. There is nothing in the impugned GR to indicate that it proposes retrospective application. However, as can be seen from the said judgments themselves, that this principle does not apply to a procedure, because there is no ‘right’ to a particular procedure. In the present case, we have already held that the teachers like the Petitioners (who were merely posted in particular villages – ZP schools which are included in the municipal limits on the date of notification) do not have a vested right of being absorbed/transferred in municipal corporation. Their right is ‘the right to be considered’, which is not affected. They will be considered in accordance with the procedure laid down in the impugned GR of July 2019.

43. Even otherwise it is clear stand of the Respondent / State Government in its written submissions that the impugned GR would be applicable to all such cases where ‘transfer of teachers from ZP to Corporation was incomplete on the date on which the impugned GR is brought in force’. This would mean that as per the stand of the State Government the transfer of those teachers which was complete in all respects on the date when the GR was issued, their services shall not be affected by the impugned GR. In light of this stand of the State Government, the question as to whether the impugned GR is retrospective or otherwise is rendered academic. In view of this clear stand, no separate directions are required.

 44. In view of the aforesaid facts and circumstances, there is no merit in the challenge to the impugned GR.

45. The challenge to the impugned GR of 25 July 2019 is rejected. Rule is discharged accordingly. The Writ Petitions are disposed of in above terms. All pending Interim / Civil applications are also disposed of. No order as to costs.

46. The concerned Zilla Parishads and the Municipal Corporations shall examine case of each of the Petitioners on case to case basis, in accordance with provisions of the impugned GR dated 25 July 2019 and take the necessary steps, within 4 weeks from the date of uploading of the judgment.

( M.M. SATHAYE, J. )                                                ( NITIN JAMDAR, J. )

47. At this stage, the learned Senior Advocate for the Petitioners in Writ Petition No. 9218 of 2021 and Writ Petition No. 9219 of 2021 seeks continuation of the interim order. Interim order in said petitions, is that the Petitioners should not be moved or posted elsewhere than the posts they are holding in their respective villages which are merged with the limits of the Corporation. In view of our finding that they do not have vested right, the request is refused. In any case the position is not irreversible.