: 1 : wp-717-11=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 717 of 2011 Narayan S/o. Pundlik Pathade ..Petitioner v/s. The Municipal Corporation of Greater Bombay & Ors. .. Respondents ......... Mrs. Nayana Buch a/w Shailesh More for the petitioner Mr. Ram Apte, Sr. Counsel a/w. P.M. Palshikar for respondent nos. 1 to3. Mr. Balkrishna Joshi for respondent no.4 ......... CORAM : A.M. KHANWILKAR & R.Y.GANOO, JJ. DATE : 22nd JULY, 2011. P.C. : 1. Heard learned Counsel for the parties. The challenge in this petition is essentially to the option exercised by the Department for appointing Municipal Secretary of the Municipal Corporation of Greater Mumbai by selection process to be conducted through M.P.S.C. which is an independent Authority. It is indisputable that the Rules in place provide for two different methods for appointment of Municipal Secretary. It is the discretion of the department to opt one of the modes i.e., either by promotion or by selection from amongst the candidates eligible to be considered for the appointment to the post of Municipal Secretary. The Rule reads thus:- : 2 : wp-717-11=.sxw “ Accompaniment to the Government Resolution, Urban Government Development, Public Health and Housing Department, No. BMC-1574-CI, dated the 10th September, 1974, above referred to :- Recruitment rule for the post of Municipal Secretary, Municipal Corporation of Greater Bombay, Bombay Appointment to the post shall be made either: (A) By promotion of Deputy Municipal Secretary in the Municipal Secretary’s Department, who- (i) holds a degree in Arts, Science, Commerce or Law of a recognised University and thereafter, (ii) has held the post of Dy. Municipal Secretary for a period of not less than three years. OR (B) By selection from amongst the candidates who- (i) Unless already in the service of the Municipal Corporation of Greater Bombay are not more than 45 years of age; (ii) hold a degree in Arts, Science, Commerce or Law of a recognised University; and (iii) after obtaining the qualifications in clause (ii) above have administrative experience for a period of not less than 10 years under a deliberative body or a large Corporation or Association. Provided that the age limit may be relaxed upto 48 years in favour of a candidate with exceptional qualifications and / or experience”. (emphasis supplied) : 3 : wp-717-11=.sxw 2. It is noticed that the validity of the said Rule has not been challenged in the present petition. The only argument canvassed before us, is that, the department in the past has been consistently filling the post of Municipal Secretary only by mode of promotion. The department, however, has filed affidavit countering this contention; and it is stated that in the past on one occasion, the post was filled by selection process and not by promotion. Counsel appearing on behalf of the petitioner and respondent no.4, however, submit that the said appointment was made by selection process because of the Court order in the case of Smt. Khire. It is submitted that there is no reason forthcoming as to why the department is now departing from the consistent practice of appointment to be made by promotion. 3. In our opinion, the fact that the department in the past has chosen to fill in the post of Municipal Secretary by promotion, does not and cannot preclude the department to exercise the discretion to fill in the post by selection process, which is permissible under the Rules. There can be no estoppel against the law. Taking any other view would result in rendering the Rule providing for option of selection mode as otiose. : 4 : wp-717-11=.sxw 4. In the circumstances, the objection raised by the petitioner, which is supported by respondent no.4, cannot be countenanced. In our opinion, the process initiated by the department is well within the norms specified in the Rules. In view of this finding, it is not necessary for us to examine the contention raised by the petitioner that the promotion to the post of Municipal Secretary should be done from the channel of General Unit only and that the petitioner being the senior most candidate in the General Unit is the only eligible candidate to be appointed as a Municipal Secretary by promotion. 5. Accordingly, this petition fails. The same is dismissed. 6. At this stage, Counsel for the respondent no.4 submits that Court should place on record objection of the respondent no.4 that the petitioner is not the senior most candidate in the General Unit. As aforesaid, we have not examined the correctness of the said plea either way. Further, needless to observe that both the petitioner as well as respondent no.4 would be entitled to participate in the selection process alongwith other qualified candidates, subject to eligibility. (R.Y.GANOO, J.) (A.M. KHANWILKAR, J.)