1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1227 OF 2000 Vilas Hari Kelkar & Ors. .. Petitioners. V/s Municipal Corporation of Greater Mumbai and Ors. .. Respondents Ms.Shobha Sahi i/by Mr.U.M.Jhaveri for the Petitioners. Mr.S.S.Pakale with Mr.S.M.Modle for M.C.G.M. Mr.S.N.Pillai for Respondent Nos. 4 to 8 and 11. CORAM : D.K.DESHMUKH & R.G.KETKAR, JJ. DATE :10TH SEPTEMBER, 2009. P.C.: 1. By this petition the petitioners who were in the employment of the Corporation are seeking a writ of mandamus to the Corporation directing the Corporation to promote them to the post of Deputy Chief Engineers on the basis of select list dated 17.5.2000. According to the averments in the petition, that list was prepared by the Promotion Committee. When we asked the learned counsel for the petitioners which is the Rule which governs the promotion to the post of Deputy Chief Engineer, the learned counsel produced before us a 2 copy of the Bombay Public Service Commission (Municipal Appointments) Rules 1951 and stated that the promotion to the post of Deputy Chief Engineer is governed by these rules. She referred to the provisions of Rule 6. Rule 6 reads as under:- “6. (1) Where recruitment to any of the posts referred to in sub- section (1) of Section 80B of the Act is to be made by promotion, in cases where the appointing authority is the Corporation or the Municipal Commissioner, the Municipal Commissioner, and in cases where the appointing authority is the Standing Committee, the Standing Committee, had forward to the Commission the names of the candidates nominated for appointment and the names of persons, if any, in the municipal service who are senior to such candidates and eligible for appointment to the post. (2) The Commission shall then- (i) consider the claims of candidates nominated for appointment; (ii) determine in respect of each candidate so nominated whether his qualifications are sufficient and whether his record proves him to have the character and ability to merit the appointment; (iii) arrange, where necessary, the names of such candidates in order of preference and communicate the list to the Municipal Commissioner of the Standing Committee, as the case may be.” 3 2. Perusal of Rule 6 shows that it is in relation to the posts which are mentioned in sub-section (1) of Section 80B of the Act. Sub-section (1) of Section 80B of the Act which is relevant, reads as under:- “80B (1) No person shall be appointed to a post - (a) the power of appointment to which vests in the Corporation or the Standing Committee and which is equivalent to, or higher than, the post of Executive Engineer set forth in the schedule for the time being in force prepared and sanctioned under Section 79; or (b) the power of appointment to which vests in the Brihan Mumbai Electric Supply and Transport Committee and which is equivalent to, or higher than, the post of Secretary set forth in the Schedule sanctioned by the Brihan Mumbai Electric Supply and Transport Committee and the Corporation under section 460R; except after consultation with the Commission in accordance with the rules made under this section; provided that, it shall not be necessary for the Commission to be consulted in the case of posts in the Water Supply and Sewerage Department falling under clause (a) and connected with the Water Supply and Sewerage Projects financed partly with assistance from the International Development Association, being posts specified by the Commissioner in this behalf and which ranks lower than the post of Executive Engineer set forth in the Schedule for the time being in force prepared and sanctioned under Section 79.” 3. Perusal of the provisions of Section 80B shows that no person can be appointed to the post higher than the post of Executive Engineer, 4 without consulting the Public Service Commission in accordance with the rules. The rules referred to above are framed for that purpose. Perusal of Rule 6 shows that when the appointing authority is Corporation, the Corporation has to prepare the list of candidates found suitable by the Corporation and send it to the Public Service Commission for its consideration, and it is thereafter that the promotion can be made. 4. The learned counsel for the petitioners could not point out to us as to who constituted the promotion committee. Unless we are shown that the promotion committee was constituted by the Corporation under the powers conferred on it to delegate its function because power to prepare select list is conferred by the rules on the Corporation itself, there is nothing in the petition to show as to how, when and for what purpose the promotion committee was constituted and who constituted it. Though the petitioners are claiming writ of mandamus for promotion to the post of Deputy Chief Engineers and though it is clear from the provisions of Section 80B that no promotion to that 5 posts can be made without consulting the Public Service Commission, the petitioners have not even joined the Public Service Commission as party to this petition. There are no averments found in the petition whether the Public Service Commission has been consulted or not. In these circumstances, therefore, in our opinion, no writ can be issued to the Corporation. Petition is devoid of any substance. Petition fails. Rule discharged. No order as to costs. (D.K.DESHMUKH,J.) (R.G.KETKAR, J.)