1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 4315 OF 2009 (Dr. Rajesh Ratanlal Agrawal .v. The Akola Municipal Corporation and another) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri A.S. Chandurkar, Advocate for the petitioner. Shri R.M. Mardikar, Advocate for the respondent No.1. Shri A.S. Mardikar, Advocate for the respondent No.2. CORAM : SMT. VASANTI A. NAIK AND PRASANNA B. VARALE, JJ. 09TH AUGUST, 2011. Heard the learned Counsel for the parties. By this petition, the petitioner impugns the order passed by the respondent No.1-Akola Municipal Corporation on 01.08.2009 promoting the respondent No.2 from the post of Peon to the post of Operation Theater Assistant. It is the case of the petitioner that the petitioner was appointed temporarily as an Operation Theater Assistant some time in the month of December, 2004. The services of the petitioner along with the certain other employees were terminated on 19.04.2006. This Court, held in Writ Petition No. 2256 of 2006, that the order terminating the petitioner's services was not illegal. Since one Shri Mishra, who was holding the post of Operation Theater Assistant, stood retired from services, the respondent No.2 was appointed on compassionate ground as a Coolie in the year 2003. It is the case of the petitioner that the respondent No.2 has been illegally promoted on the post of Operation Theater Assistant though he does not have the requisite experience of three years as prescribed by the rules. It is also the case of the petitioner that though the Municipal Corporation had passed a resolution that they would advertise the post and then fill it up, the post was not filled in by issuing the advertisement and the respondent No.2 was promoted on the post of Operation Theater Assistant. 2 On hearing the learned Counsel for the parties and on perusal of the relevant rules, it appears that the respondent No.2 was duly qualified for promotion to the post of Operation Theater Assistant. The Recruitment Rules prescribe that in case of promotion, the employee should have at least three years experience in the cadre of Ward Boy. We find that the respondent No.2 was working as a Coolie in the cadre of Ward Boy since the year 2003. The respondent No.2 also had an experience of more than three years as an Assistant in Ophthalmology Department. Hence, we find that the respondent No.2 is duly qualified to be promoted on the post of Operation Theater Assistant, as per the Recruitment Rules. The other submission made on behalf of the petitioner that the respondent-Corporation ought to have advertised the post and could not have filled the same by promotion is liable to be rejected as the Bombay Provincial Municipal Corporation Rules, especially Rule 5(kha) provides that a solitary post should be filled in by promotion and in case no employee is eligible for being promoted on the post, the same could be filled in by nomination. Since the respondent No.2 was eligible for promotion on the post of Operation Theater Assistant, we do not find any illegality in the order of the respondent-Corporation promoting the respondent No.2 on the post of Operation Theater Assistant. In the result, the petition fails and is dismissed with no order as to costs. JUDGE JUDGE *rrg.