(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 2359 OF 2007 Dr. Narayanrao s/o. Gopalrao Kulkarni, Age : 54 years, Occupation : Service, R/o. Tridal Building, Near Fire Brigade, Ahmednagar, Taluka & District : Ahmednagar. .. Petitioner. versus 1. The State of Maharashtra, through Secretary, Urban Development Department, Mantralaya, Mumbai. 2. Commissioner & Director, Municipal Administration, Shasakiya Prathamik Seva Imarat, 3rd Floor, Sir Pochkhanawale Marg, Parel, Mumbai - 400 025. 3. The Commissioner, Municipal Corporation, Ahmednagar, Taluka & District : Ahmednagar. .. Respondents. .......................... Mr. P.R. Katneshwarkar, Advocate, for the petitioner. Mr. R.P. Phatke, Additional Government Pleader, for respondent nos.1 and 2. (2) Mr. V.S. Bedre, Advocate, for respondent no.3. .......................... CORAM : B.R. GAVAI & N.D. DESHPANDE, JJ. DATE : 7TH SEPTEMBER 2009. ORAL JUDGMENT (Per B.R. Gavai, J.) : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. The petition was initially filed by the petitioner, seeking a writ of mandamus, directing the respondents to treat the petitioner as a regular employee of the Ahmednagar Municipal Corporation. The petitioner has also prayed for a direction to the respondents, to stop the proceedings initiated on the ground that the petitioner was more in age than the prescribed age at the time of appointment. The petitioner has also prayed for an interim relief, restraining the respondents from taking any adverse action against the petitioner, on the ground that the petitioner was more in age than the prescribed age at the time of appointment of the petitioner. 3. While issuing notice, this court vide order dated 23rd April 2007, had granted ad interim relief in terms of prayer clause "E", which reads thus : (3) " Pending hearing and final disposal of this Writ Petition, the respondents be restrained from taking any adverse action against the petitioner on the ground that the petitioner was more in age than the prescribed age at the time of appointment of petitioner. " In view of the interim relief granted by this court, dated 23rd April 2007, the petitioner still continues in service. 4. However, it appears that during the pendency of the petition, a communication addressed by the State of Maharashtra, dated 28th December 2006, vide which the proposal for relaxing the upper age limit was rejected by the State Government, was brought to the notice of the petitioner. The petitioner has accordingly amended the petition so as to challenge the said communication also. 5. The facts, in brief, giving rise to the present petition are as under : (a) It appears that the post of Medical Officer, in the erstwhile Ahmednagar Municipal Council, had fallen vacant from September 2008. It appears that the said post was vacant for a considerable length of time. Accordingly, a request was also made to the Director of Municipal Administration for sending a Medical Officer on deputation, vide communication dated 19th January 1984, by the erstwhile Ahmednagar Municipal Council. (4) (b) It appears that subsequently, a requisition was made from the Employment Exchange for filling up the post of Medical Officer. The said requisition was made on 22nd September 1983. In pursuance to the aforesaid requisition, it appears that the Employment Exchange had forwarded the name of the petitioner to the Municipal Council. The petitioner was accordingly sent an interview call on 1st July 1985. After interviews were held, the Selection Committee submitted its recommendations to the Municipal Council. The said recommendations were considered by the Municipal Council on 15th October 1985. From the perusal of the proceedings of the Selection Committee, it would reveal that the said Selection Committee had recommended following two names in the order of merit : (1) Dr. D.P. Rode, and (2) Dr. N.G. Kulkarni (petitioner). It appears that the candidate at serial no.1 did not turn up and accordingly, vide order dated 16th December 1985, the petitioner was appointed. Since the petitioner had requested for grant of four additional increments, as a condition for joining the services with the Ahmednagar Municipal Council, the said proposal was sent to the competent authority i.e. the Director of Municipal Administration. Vide order passed in June 1988, the Deputy Director of Municipal Administration granted approval for grant of four additional increments to the petitioner, as a special case. (c) It appears that subsequently, there was an audit objection to the effect that since the petitioner was more than 28 years of age, the condition regarding upper age limit was required to be condoned from the competent authority i.e. Director of Municipal Administration. The (5) Ahmednagar Municipal Council, therefore, on 5th May 1997, passed a resolution for condoning the aforesaid condition and accordingly, a proposal was submitted to the Director of Municipal Administration. In the meantime, it appears that the respondent no.3, Municipal Corporation, was established in place of the erstwhile Municipal Council. The respondent no.3 also on 31st March 2005, passed a resolution recommending the case of the petitioner for condoning the upper age limit in case of the petitioner. A detail reasoning is given in the said resolution, as to why the case of the petitioner was required to be considered. However, it appears that on 25th May 2007, in pursuance to the directions issued by the State Government, the respondent no.3 terminated services of the petitioner, on the ground that the State Government had refused to condone the upper age limit. Since the said communication was addressed on the basis of the communication dated 28th December 2006 issued by the respondent no.1, the petitioner has also challenged the said communication. 6. Mr. P.R. Katneshwarkar, learned Counsel appearing for the petitioner, submits that from the advertisement, so also, from the rules which govern service conditions, it can be seen that there was no condition regarding the upper age limit, in so far as the post of Medical Officer is concerned. In any case, he submits that the conditions, which enable the Director of Municipal Administration to condone the upper age limit, as are prescribed in the Government Resolution dated 13th January 2006, are fully complied with and as such, the State Government ought to have granted condonation of the upper age limit. He further submits that in similar case i.e. of one Smt. Surekha P. Ghugariya, the upper age limit was condoned though she was much more in age than the (6) petitioner, on the date on which she had joined services of the Municipal Corporation. 7. Mr. V.S. Bedre, learned Counsel appearing for respondent no.3, on the basis of affidavit in reply filed by it, also supports the case of the petitioner. He submits that the erstwhile Municipal Corporation was required to appoint the petitioner in the peculiar circumstances. He submits that inspite of efforts made by the respondent no.3, the post of Medical Officer could not be filled up from 1982 to 1986. It is submitted that after advertisement was issued and the recommendations were sought from the Employment Exchange, appointment of the petitioner came to be made after following due selection process. It is, therefore, submitted that accordingly, the erstwhile Municipal Council, so also, the respondent no.3 Municipal Corporation, had recommended the proposal of the petitioner for condoning the upper age limit. 8. Though notices have been duly served on the respondent nos.1 and 2, and various adjournments were sought on their behalf, no reply is coming forward. Since on the last date, we had granted time by way of last chance and had specifically intimated to the respondents, that on the next date, the matter would be heard, whether the respondents file their reply, or not, we are deciding the matter on the basis of the pleadings as exist on record. 9. From the advertisement issued by the erstwhile Municipal Council, so also, the requisition sent to the Employment Exchange, it is clear that no upper age limit was prescribed, in so far as the post of Medical Officer is concerned. Not only this, but neither the Municipal (7) Corporation nor the State Government has been in a position to produce on record any requirement in law which prescribes the age of 28 years to be upper age limit. From the record, it is clear that the post on which the petitioner was appointed, was filled in after following due selection process. A Selection Committee consisting of 7 members has interviewed the candidates. In so far as the post of Medical Officer is concerned, one Dr. D.P. Rode was found to be number one in the merit list. The petitioner was found at number two in the merit list. From the resolution passed by the Municipal Council and the Municipal Corporation, it can be clearly seen that the post was lying vacant from 1982 to 1986. It can further be seen that as the candidate at serial no.1 refused to join appointment, the petitioner came to be appointed on the said post. It is also pertinent to note that, at the relevant time, the petitioner was working as Medical Officer at Primary Health Centre, Zilla Parishad, Pune. 10. Taking into consideration the experience of the petitioner, the petitioner had insisted for grant of four additional increments. After appointment of the petitioner, a proposal was also sent to the competent authority for grant of four additional increments by the erstwhile Municipal Council. While issuing appointment order to the petitioner on 16th December 1985, the petitioner was informed that the proposal for grant of four additional increments will be sent to the Divisional Commissioner, Nashik, and after approval of the said authority, four additional increments would be paid to the petitioner. The competent authority i.e. Director of Municipal Administration, vide order passed in June 1988, had also granted approval to the proposal for grant of four additional increments to the petitioner, as a special case. (8) 11. It is thus clear that the petitioner was found to be eligible throughout. It appears that only on account of an audit objection, it was noticed that a formal requirement, of condoning the upper age limit by the competent authority, was required to be done. Accordingly, the erstwhile Municipal Council, so also, the present Municipal Corporation have passed resolutions to that effect and a proposal has been sent by the respondent no.3 to the competent authority for condoning the said condition. Perusal of the Government Resolution dated 13th January 2006 and specifically Schedule "A" thereto, would reveal that all the conditions which are specified therein, are duly complied with, in the present case. In so far as the condition no.4, which is sought to be insisted in the communication dated 28th December 2006 is concerned, it can be seen that a ground is sought to be raised, that the petitioner has developed hearing impediment. However, it is to be noted that neither case of the petitioner is referred to Medical Board, nor any document is placed on record in support of the said contention. On the contrary, the respondent no.3, Municipal Corporation, has strongly recommended the case of the petitioner. Apart from that, we also find that the ground raised in the petition, on the basis of Section 47 of the Persons with Disabilities (Equal opportunities, protection of Rights and Full Participation) Act, 1995, taking into consideration the facts of the present case, is also well merited. 12. The petition also deserves to be allowed on one another ground. When the petitioner was selected by the erstwhile Municipal Council and was given appointment order, he was already working as a Medical Officer with the Zilla Parishad, Pune. It also appears to be a (9) condition put by the petitioner, that he would be joining his services with the erstwhile Municipal Council subject to grant of four additional increments to him. The erstwhile Municipal Council had also accepted that condition. It is thus clear that on the basis of the acceptance of the condition of granting four additional increments, the petitioner left his service with the Zilla Parishad, Pune and joined the erstwhile Municipal Council at Ahmednagar. We, therefore, find that the principle of estoppel would be squarely applicable to the facts of the present case. It further appears that the respondent no.1 has also given a discriminatory treatment to the petitioner. Though we do not find it necessary to go into the contentions of mala fides sought to be raised by the petitioner, however, it is apparent from Exhibit "O" to the petition, that vide order dated 26th June 1992, office of respondent no.2 has condoned the upper age limit of one Dr. Smt. Surekha P. Ghugariya wherein she was 9 years above the prescribed age limit on the date of her appointment. In the case of the petitioner, the petitioner was about 5 years more than the prescribed age limit. We do not understand the attitude of respondent no. 1 in refusing to condone the upper age limit, wherein the candidate is more in age by 5 years than the prescribed upper age limit, and condone the same in case of another candidate, wherein the candidate is more in age by 9 years than the prescribed upper age limit. The action of respondent no.1, therefore, is patently discriminatory, in so far as denial of treatment to the petitioner, which was granted in case of Dr. Smt. Surekha P. Ghugariya, is concerned. 13. In the result, we find that the action of the respondent no.1, in refusing to condone the upper age limit, in case of the petitioner, is not sustainable in law. (10) 14. In the result, the petition is allowed. Rule is made absolute in terms of prayer clause "G". There shall be no order as to costs. ( N.D. DESHPANDE ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/2359wp