1 MMJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO.304 OF 2010 1. Madhukar M. Kamble ) working as Dy. Municipal Commissioner ) with Municipal Corporation of Greater Mumbai ) r/ at B-21, Takshila Building No.12 C.H.S. Ltd. ) Mahakali Caves Road, Andheri (E), Mumbai-93 ) 2. D.L.Shinde, presently working as ) Dy. Municipal Commissioner with Municipal ) Corporation of Greater Mumbai, R/at, 102, ) Padmavati Co.Op Hsg. Society Ltd., 1st floor, B-wing ) Shivi Nagar, Navapada Thane (W) 400 602 )..Petitioners - Versus - 1.The Municipal Corporation of Greater Mumbai ) having its office at Mahapalika Marg, Mumbai -01 ) 2. The Municipal Commissioner ) The Municipal Corporation of Greater Mumbai ) having his office at Municipal Head Quarters, ) Mahapalika Marg, Mumbai -400 001 ) 3.The Addl. Municipal Commissioner (Eastern ) Suburb), The Municipal Corporation of Greater ) Mumbai having his office at Municipal Head ) Quarters, Mahapalika Marg, Mumbai -400 001 ) 4. The Dy. Municipal Commissioner (G.A.) ) having his office at Municipal Head Quarters, ) Mahapalika Marg, Mumbai -400 001 ) 2 5. Mr. A.T. Shintre ) presently working as Director (ES & P), ) with Municipal Corporation of Greater Mumbai ) having his office at Municipal Head Quarters ) Mahapalika Marg, Mumbai 400 001 )..Respondents Mr. M.I. Sethana, Senior Advocate i/b Mr. S. N. Pillai for Petitioner. Mr. R. S. Apte Senior Advocate with Ms V. S. Gharpure for Respondent Nos. 1 to 4 Mr. V. A. Sawant for Respondent No.5 CORAM : J. N. PATEL & A.P. BHANGALE, JJ RESERVED ON : 1st April, 2010 PRONOUNCED ON: 6th April, 2010 JUDGMENT (Per Shri A. P. BHANGALE, J.) : 1. Heard. Rule. The learned counsel appearing on behalf of the respective respondents waive service of notice. By consent, heard forthwith and perused the record. 2. The petitioners have by this petition under Article 226 of the Constitution of India assailed the promotion of respondent No.5, Shri A. T. Shintre, by the Municipal Corporation of Greater Mumbai 3 (hereinafter referred to as “the MCGM”) as illegal, malafide, arbitrary and ultra-vires the statutory provisions while impugning the Resolution No.1097, dated 27-1-2010, passed by the MCGM upon the proposal dated 7-1-2010 from the Municipal Commissioner and an office order dated 31-12-2009 appointing respondent No.5 as the Director in view of Section 54-A of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as “the said Act”). 3. The facts of the case, in brief, are thus: The petitioners are employees of respondent No.1-MCGM. The petitioner No.1 was appointed as a Sub-Engineer since 06-05-1976, while petitioner No.2 was appointed as a Sub- Engineer since 30-04-1977. The petitioners were promoted and were working as Deputy Municipal Commissioners. The petitioners contended that, respondent No.5-Shri Shintre was appointed as a Sub-Engineer on 30-4-1977 and was promoted as the Chief Engineer, which post is lower than the post of the Deputy Municipal Commissioner. According to the petitioners, only a seniormost Deputy Municipal Commissioner can be promoted and appointed to the post of the Director. 4 4. Further, it is contended that the process of selection for promotion to the post of the Director started in October 2009, and the incumbent to the post was Shri M.L.Tambe, who was to retire on 31-12-2009. Therefore, an Officer of respondent No.4-Deputy Municipal Commissioner (General Administration) had requested the Chief Inquiry Officer to issue Certificates regarding pending preliminary or disciplinary causes against the petitioners. The petitioners had accordingly submitted declarations in the prescribed format. 5. The Departmental Promotion Committee consisting of the Municipal Commissioner as its Chairman, four additional Municipal Commissioner as its members and the Deputy Municipal Commissioner (General Administration) as its Secretary, decided to promote Shri Shintre as the Director (ES & P) w.e.f. 1-12-2009, although it ought to have promoted the senior most Deputy Municipal Commissioner to the post of the Director. 6. Learned Senior Counsel Shri M.I. Sethana, appearing for the petitioners, submitted that the claim of petitioner No.1 as the senior most Deputy Municipal Commissioner ought to have been considered as he was made in-charge to the post of the Director w.e.f. 5 28-07-2009 during the period when Shri M.L. Tambe was on leave. The learned Senior Counsel submitted that the Promotion Committee had found the petitioners as fit for promotion after considering the record and had even resolved to promote the senior most Deputy Municipal Commissioner to the post of the Director, upon retirement of Shri M.L. Tambe, however, promoted respondent No.5-Shri Shintre pursuant to the proposal dated 1-12-2009 from the Municipal Commissioner and the Resolution No.992, dated 11-12-2009. The learned Senior Counsel submitted that the Secretary of the Promotion Committee of the MCGM while putting up note to the Municipal Commissioner suppressed the fact that the Promotion Committee had earlier decided to promote the senior most Deputy Municipal Commissioner as the Director. The Municipal Commissioner made his remarks on the note put up by the Secretary that the Director required a good experience in D.P. & B.P. matters in which Mr. A. T. Shintre has got good experience. According to the learned Senior Counsel, such remark by the Municipal Commissioner was contrary to the earlier decision of the Promotion Committee and was arbitrary, illegal and based upon extraneous considerations. The 6 learned Senior Counsel contented that the Promotion Committee had decided to promote the senior most Deputy Municipal Commissioner to the post of the Director w.e.f. 1-1-2010, upon retirement of Shri M.L. Tambe and, therefore, Shri Shintre, who was not even the Deputy Municipal Commissioner, could not have been promoted and appointed as the Director. 7. It is contended that petitioner No.1 had filed a writ petition being Writ Petition (Lodging) No.38 of 2010 (Writ Petition No.278 of 2010) on 6-1-2010 to challenge the office order dated 31-12-2009 by which the MCGM promoted and appointed its Chief Engineer, Shri Shintre, as the Director. Perusal of the office order indicate that the appointment is purely on ad-hoc basis and subject to the decision in the pending litigation and also subject to the approval by the State Government. 8. The learned Senior Counsel for the petitioners argued that Shri Shintre was not the senior most Deputy Municipal Commissioner and could not have been promoted to the post of the Director ahead of the other Deputy Municipal Commissioner, who were seniors to him. 9. While criticising the decision of the MCGM to promote Shri Shintre 7 as the Director, as arbitrary or mala fide, the learned Senior Counsel made reference to the rulings in (1) E.P. Royappa v. State of Tamil Nadu & Anr. {(1974) 4 SCC 3}, (2) Jatinder Kumar & Ors. v. State of Punjab & Ors. {(1985) 1 SCC 122} and (3) Union of India & Ors. v. Dwarka Prasad Tiwari {(2006) 10 SCC 388}. Shri Sethna, with reference to the citations relied upon, submitted that the MCGM ought to have strictly adhered to the order of seniority in the feeder cadre for the post of the Director. He submitted that when an administrative action has been challenged as being ‘arbitrary’ under Article 14 on the basis of Royappa’s case (supra), the question would be whether the administrative order under challenge is rational or reasonable. He canvassed the principle of Wednesbary review as to whether the administration has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether view of administration is such, which no reasonable person could have taken. 10.The learned Senior Counsel Shri Apte, appearing for respondent Nos. 1 to 4, while strongly opposing the submissions made by Shri Sethana, submitted that the proposal for filling-up the posts (DMC 8 (SP. Engg.), (2) Director (ES & P) and (3) the Chief Engineer was put up on 16-10-2009 for remark by the Municipal Commissioner, who had passed his remark on 21-10-2009 on the copy of the same proposal. The Minutes were prepared by the Departmental Promotion Committee on 21-10-2009. A draft letter was prepared for approval of the Municipal Commissioner for filling-up the post of DMC (Engineering Group) on 24-11-2009 which, after approval by the Municipal Commissioner, was sent for the sanction of the Corporation. The resolution was passed on 11-12-2009. It is brought to our attention that the proposal from the General Administration Department of MCGM dated 18-12-2009 was put up for approval of the Municipal Commissioner in order to fill-up the post of DMC(SE), Director (Engineering Services and Project), and the Chief Engineer (Development Planning). The remark, dated 30-12-2009, made by the Municipal Commissioner reads thus: “Perused, 1) Director (E.S.P.) must have very good experience and command over DP and BP matters which are submitted to the Municipal Commissioner. Shri Shintre has vast experience in DP & BP. Hence Shri Shintre is posted as Director (ESP) on promotion as the senior most CE to Director (ESP). 9 2) The Second senior most CE Shri Gondalia has vast experience in H.E. and Water Supply Department. Hence Shri Gondalia is promoted and posted as DMC (SE) which deals with water works. 3)The post of C.E.D.P falls vacant due to promotion of Shri Shintre as Director (ESP). The post of CE.DP requires previous experience in DP. BP matters Shri V. L.Joshi is now senior C.E. after promotion of Shri Shintre and Shri Gondalia. He also has previous experience in DP BP. Hence Shri Joshi is posted as CE- DP. Orders may issue as above. Sd/- M.C. 30th Dec..09” Thus, the proposal was further put up for orders accordingly. Shri Apte, then drew our attention to Section 54-A of the Act which reads thus: “54-A. Appointment of Director (1)subject to confirmation by the State Government the Corporation may at any time and from time to time appoint a person to be the Director (Engineering Services and Projects), if it shall appear to if expedient to do so. (2) Every person so appointed shall be subject to the same liabilities, restrictions and conditions to which the Commissioner is subject.” Section 54-A was introduced in the Act by the Maharashtra Amending Act 53 of 1981. The appointment of Director (ES & P) is, therefore, always subject to confirmation by the State Government and may be made when it 10 is expedient to do so. The recruitment Rules (Qualification) for the post of Director (Engineering Services & Project), approved by the Corporation vide Resolution No.CR-347, dated 21-8-1987, were confirmed by the State Government vide Resolution No.BMC/1589/178/CR-74 /89 /UD-21, dated 31-8-1989. The said Rules read thus: “(A) by promotion from amongst the incumbents of the following post of the Engineering Department of the Municipal Corporation of Greater Mumbai:- (1) City Engineer, (2) Hydraulic Engineer, (3) Chief Engineer (Civil), (4) Any other post in the Engineering Department equivalent to that of City Engineer/Hydraulic Engineer/Chief Engineer (Civil), who (a) have experience for not less than ten years in post/s not below the rank of Executive Engineer, and (b) possess adequate knowledge of Marathi so as to be able to speak, read and write Marathi with facility. (B) By selection from amongst candidates who - (a) unless already in the services of the Municipal Corporation of Greater Mumbai, are not more than 45 years (50 years in the case of candidates belonging to Backward Classes) of age, and (b) possess a degree in Civil Engineering in Second 11 Class from a Statutory University or hold an equivalent qualification and (c) have not less than 15 years of practical experience or Civil Engineering Works gained after acquiring the qualification mentioned in Clause (b) above, out of which not less than 10 years should be in a responsible position equivalent to the post of Executive Engineer in the Municipal Corporation of Greater Mumbai; and (d) possess adequate knowledge of Marathi so as to able to speak, read and write Marathi with facility: Provided that preference shall be given to candidates who - (1) possess master’s degree in Public Health Engineering or in any other Civil Engineering subject or in both; (2) have knowledge and experience of Electrical or Mechanical Engineering work or of both. Provided further that the age limit may be relaxed in favour of a candidate with exceptional qualifications or experience or both.” The learned counsel for respondent No.5, while opposing the petition, submitted that respondent No.5 was not from the category of the petitioners as Shri Shintre was never appointed as a Deputy Municipal Commissioner. 11.The administration is required to consider a fit and suitable person for promotion, having specialised experience and potential to 12 discharge his duties effectively. To find a fit and suitable person is always a difficult problem to be tackled with while making the right choice. The Municipal Commissioner as the head of the municipal administration is required to apply his mind to consider a suitable person with requisite qualification and experience for achieving administrative efficiency of the desired level under the given circumstances after duly considering the relevant provisions and rules. 12.The scope of Articles 14 and 16 of the Constitution of India, in the facts and circumstances, cannot be extended too far to readily interfere in such matters as the Municipal Commissioner, assisted by the Members of the Departmental Promotion Committee of the MCGM, is in the best position to assess and decide as to who has the requisite qualifications and experience for promotion. This Court in exercise of writ jurisdiction cannot sit over the administrative decision of the MCGM like a Court of appeal. We do not find the impugned decision promoting Shri Shintre as violative of the relevant Rules and the statutory provision in Section 54-A of the Act read along with the Rules made thereunder, nor we can term the decision 13 as infringing the fundamental right. We do not find violation of any constitutional provision. In M. Jagdish Vyas & others v. Union of India & others {Civil Appeal No.4345-4346 of 2007, decided on 29-3-2010}, the Apex Court observed thus: “The law has been well-settled for many years that members of one homogenous group have to be treated equally. At the same time Article 14 and 16 do not mandate that un-equals are to be treated as equals. In this case classification cannot be said to be either irrational or arbitrary. It had clear nexus with the object sought to be achieved i.e. to fill up as may vacant post from the departmental candidate working on the lower ranks provided they reach bare minimum qualifying standard in JAO Part II Examination. So far as deputationists are concerned, the respondents are entitled to insist on recruiting the best from among the deputationist. Hence higher criteria for the deputationist cannot be said to be arbitrary or discriminatory. Such classification is permissible u/Art.14 and 16 of the Constitution of India.” Following an earlier decision in S.G. Jaisinghani v. Union of India {AIR 1967 SC 1427, the Apex Court in para 9 has observed thus: “9. The relevant law on the subject is well settled. Under Art. 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Art.14 thereof. It gives effect to the doctrine of equality in the matter of appointment and 14 promotion. It follows that there can be reasonable classification of appointment and promotion. The concept of equality in the matter of promotion can be predicted only when the promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the differences between the said two sources, and the said differences have a reasonable relation to the nature of the office or offices to which recruitment is made, the said recruitment can legitimately be sustained on the basis of a valid classification.” 13.For the post of Director (Engineering Services and Projects), the petitioners in the present case and respondent No.5-Shri Shintre were not constituting the `same source’ as far as their posting, qualifications and experience were concerned in the municipal service. 14.In Roop Chand Adlakha and others v. Delhi Development Authority and others {AIR 1989 SC 307}, the Apex Court in para 7 has observed thus: “.... If the differences in the qualification has a reasonable relation to the nature of duties and responsibilities, that go with and are attendant upon the promotional-post, the more advantageous treatment of those who possess higher technical qualifications can be legitimised on the doctrine of classification. There may, conceivably, be cases where the differences in the educational qualifications may not be sufficient to give any preferential treatment to one class of candidates as against another. Whether the classification is reasonable 15 or not must, therefore, necessarily depend upon facts of each case and the circumstances obtaining at the relevant time. When the State makes a classification between two sources, unless the vice of the classification is writ large on the face of it, the person assailing the classification must show that it is unreasonable and violative of Art. 14.” Although allegations are made by the petitioners, in our view, in the absence of any prima facie tangible proof to support the allegations that the decision of the MCGM is ultra vires, tainted by mala fides, illegality or is influenced by extraneous considerations, the Court exercising writ jurisdiction cannot readily infer mala fides, etc., as above on the part of the decision making authorities or functionaries of the Municipal Corporation. Mere notings made in files by the Municipal Commissioner cannot be the basis to infer mala fides or extraneous considerations without further tangible evidence to corroborate the allegations. 15.In Dilip Kumar Garg and another v. State of Uttar Pradesh and others {(2009) 4 SCC 753}, the Apex Court in para 15 has observed thus: “15. In our opinion Article 14 should not be stretched too far, otherwise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the requisite 16 qualifications for promotion from Junior Engineer to Assistant Engineer, and it is not for this Court to sit over their decision like a Court appeal. The administrative authorities have experience in administration, and the Court must respect this, and should not interfere readily with administrative decisions.{See: Union of India v. Pushpa Rani (2008) 9 SCC 242 and Official Liquidator v. Dayanand (2008) 10 SCC 1}” 16.In service jurisprudence, it is settled legal principle that no employee can claim right to promotion. He has only right to be considered for promotion. In the present case, the Departmental Promotion Committee of the Mumbai Municipal Corporation while recommending promotion for Shri Shintre did not ignore Section 54- A of the Act and the Rules made thereunder. The petitioners cannot claim wooden equality with respondent No.5-Shri Shintre because he was never appointed in the category of Deputy Municipal Commissioners. Shri A.T. Shintre was from the category of Chief Engineers (Civil) with educational qualifications B.E. (Civil). He belonged to another category of Chief Engineers with separate seniority list. His appointment and promotion as the Director (ES & P) was based upon his qualification and experience in specialised field of engineering services & projects. In view of Section 54-A of the Act and the Rules framed thereunder, it cannot be said that the 17 MCGM has over-looked the seniority of the petitioners because since Shri Shintre was not at all in the category of Deputy Municipal Commissioners. The post of the Director required specialised experience in the engineering field, specific job requirements and qualifications which the municipal administration was bound to assess before promoting a competent, suitable and fit person to the higher post of Director. Therefore, the petitioners cannot assail the MCGM’s resolution and the office order pursuant to which Shri Shintre was, in our opinion, justifiably promoted. We do not find any violation of Section 54-A of the Act and the Rules made thereunder, as also violation of any constitutional provisions relied upon. 17.In view of the foregoing discussion, the petition lacks in merits and deserves to be dismissed. The petition is dismissed accordingly. No order as to costs. Rule is discharged. (J.N. PATEL, J.) (A.P. BHANGALE, J.)