WP/5546/10 1 SSK IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5546 OF 2010. Gopal Malba Alapure and Ors. ..Petitioners. Versus The Municipal Commissioner, Pune Municipal Corp. & Others. ..Respondents. Mr. Sandeep V.Marne for the petitioners. Mr. Vijay D. Patil, GP for R-3. Mr. R. S. Khadpakar for R-1 & 2. CORAM : SMT. RANJANA DESAI & RANJIT MORE, JJ. DATED : 15th OCTOBER, 2010. P. C. [Per Ranjit More] : 1. We have heard Mr. Marne, learned counsel for the petitioners, Mr. R. S. Khadpakar, learned counsel for the Pune Municipal Corporation and Mr. Vijay D. Patil, learned Government Pleader. 2. The petitioners by filing this writ petition under Article 226 of the Constitution of India are claiming directions to respondent nos.1 & 2 for regularisation of their services. It is the case of the petitioners that respondent no.1 issued an advertisement on 24/9/2005 for preparing Select List as well as Wait List of candidates for filling up various posts. In WP/5546/10 2 SSK pursuance of this advertisement, the petitioners applied. They were called for written examination. They appeared for the written examination held on 17/3/2007, which they passed and thereafter they were called for interview. Respondents while the selection process was going on pursuant to the advertisement dated 24/9/2005, issued another advertisement on 10/4/2007 for preparing Wait List of 22 candidates for the post of Junior Engineer (Civil). On 30/4/2007 Municipal Commissioner-respondent no.1 issued order appointing 40 persons on the post of Junior Engineer (Civil) for the period of 6 months on contract basis on consolidated salary of Rs.4,500/- per month. On 16/5/2007 respondent no.1 issued one more order appointing 10 more persons on the post of Junior Engineer (Civil) on similar terms and conditions. On 6/8/2007, Selection Committee of Municipal Corporation–respondent no.2 herein prepared Select List of 22 candidates and Wait List of 7 candidates merely on the basis of marks obtained by them in degree/diploma courses. On 8/8/2007 order was issued appointing 22 candidates from the list prepared in pursuance of the advertisement dated 10/4/2007 on the post of Junior Engineer (Civil) on contract basis for six months. Respondent no.1 by an order dated 20/9/2007, appointed 20 more candidates, including the petitioners, on the post of Junior Engineer (Civil) for the period of 6 months on contract basis. It is specific case of the petitioners that by an order dated 15/11/2007 the respondents regularised services of 40 candidates, who were initially WP/5546/10 3 SSK appointed by order dated 30/4/2007 and subsequently by order dated 14/12/2007 regularised the services of 22 candidates who were appointed on contract basis on 16/5/2007. It is submitted that respondent no.1 thereafter on 14/12/2007 and 7/2/2008 regularised the services of all 22 candidates who were selected without undergoing any selection process vide advertisement dated 10/4/2007 and by appointment order dated 8/8/2007. The petitioners claim that the petitioners and the candidates whose services are regularised are similarly situated, and therefore they are entitled for regularisation of their services. It is further submitted that on 18/12/2008, respondent no.1 issued an advertisement for filling up 25 regular vacancies of Junior Engineer (Civil). The petitioners participated in this selection process, but they were not selected. It was further submitted that vide order dated 22/1/2010, the petitioners were granted last extension till 21/7/2010. It is the case of the petitioners that time and again they made applications to respondent no.1 for regularisation of their services, however, respondent no.1 failed to take any action and therefore the above petition is filed. 3. The respondent no.1 contested the petition by filing affidavit of Kundlik Chandrakant Karkar, Deputy Municipal Commissioner (General). It is the contention of the 1st respondent that the petitioners have not disclosed all the relevant and true facts. The maintainability of the petition WP/5546/10 4 SSK is also challenged on various grounds including the ground that the petitioners having participated in the selection process pursuant to the advertisement dated 18.12.2008 are estopped from filing the present petition. It is submitted that in pursuance of the advertisement dated 24.09.2005, the Selection Committee recommended names of 50 candidates considering the eventuality that some of the candidates out of first 40 may not join the duty. The petitioners had participated in this selection process. However, their names were not recommended. The Municipal Commissioner by orders dated 15.11.2007 and 04.12.2007 appointed 36 and 4 candidates respectively in pursuance of the resolution dated 25.10.2007 of the Corporation under Section 53(1) of Bombay Provincial Municipal Corporations Act, 1949 (for short “BPMC Act”). It is further stated that 22 candidates were appointed under orders dated 14.12.2007, 07.02.2008, 30.04.2008, 02.08.2008 and 11.11.2008 in pursuance of the General Body resolution of the Corporation dated 26.11.2007 granting approval to appointment of 22 candidates. It was further contended that the above appointments were made by the Corporation in pursuance of the powers conferred on it under Section 53(1) of the BPMC Act. It is specifically submitted that the petitioners’ appointments were independent of selection process and made purely on temporary basis by the Commissioner in exercise of powers under section 53(3) of the BPMC Act and therefore, they cannot claim regularisation. WP/5546/10 5 SSK 5. Having heard learned counsel for the respective parties and having perused the pleadings and the documents produced by the respective parties, we do not find merit in the petition. The 1st respondent issued an advertisement on 24.09.2005 for preparing waiting list for the purpose of making appointment to the 40 schedule sanction posts of Junior Engineer (Civil). In pursuance of this advertisement, 2448 applications were received. Out of the same, 2260 candidates including the petitioners were found to be eligible. The eligible candidates were called for interview by the Staff Selection Committee constituted under section 54(1) of the BPMC Act. The Selection Committee recommended the names of 50 candidates considering the eventuality that some of the candidates out of first 40 may not join the duty. The 1st respondent has annexed a copy of the Selection Committee’s report at Exhibit “4”. Perusal of the report discloses that the names of the petitioners were not recommended by the Selection Committee. The Corporation, thereafter by passing a resolution dated 25.10.2007 granted approval under section 53(1) of the BPMC Act for making appointment of the first 40 candidates recommended by the Selection Committee in the vacant post. The Municipal Commissioner, thereafter, issued order of appointment on 15.11.2007 making appointment of 40 candidates as recommended by the Selection Committee in the regular pay scale. However, only 36 candidates joined the duty and therefore, by separate order dated 14.12.2007, the Commissioner WP/5546/10 6 SSK appointed 4 candidates amongst 10 candidates in the waiting list prepared in pursuance of the advertisement dated 24.09.2005. Thus, we find that the appointments dated 15.11.2007 and 14.12.2007 were made under Section 53(1) of the BPMC Act. 6. The Corporation had also issued advertisement dated 10.04.2007 for preparing the selection list for making appointment to the 22 vacant schedule sanction posts of Junior Engineer (Civil). Pursuant to the said advertisement, 456 applications were received out of which 428 candidates were found to be eligible. The Selection Committee headed by the Additional Municipal Commissioner and consisting of the City Engineer, Chief Auditor, Assistant Municipal Commissioner (Land and Estate), and also Seva Yojan Adhikari, Pune and District Rehabilitation Officer was constituted. The Social Welfare Officer, Pune and Project Officer, Integrated Adivasi Development Project, Ghodegaon, were requested to attend the meeting of the said Selection Committee. This meeting was held on 06.08.2007 and the Selection Committee considering the educational qualification, roaster, backlog etc. recommended the names of 22 candidates in the selection list and 7 candidates in the waiting list. So far as this list is concerned, the Corporation by General Body resolution dated 26.11.2007 granted approval to the appointment of 22 candidates and thereafter, the Commissioner issued appointment orders on 14.12.2007, WP/5546/10 7 SSK 07.02.2008, 30.04.2008, 02.08.2008 and 11.11.2008. Thus, these appointments were also made by the Corporation in exercise of powers vested in it by virtue of Section 53(1) of the BPMC Act. 6. So far as the appointments dated 30.04.2007 and 16.05.2007 are concerned, we have perused the appointment orders at pages 20 and 22 of the petition. The appointment orders reveal that these appointments were made for a period of 6 months on contract basis. These appointments seems to have been made under section 53(3) of the BPMC Act and independent of the selection process. The appointment orders dated 08.08.2007 and 20.09.2007 were also made by the Municipal Commissioner for a period of 6 months in exercise of his power under Section 53(3) of the BPMC Act. The petitioners are appointed by order dated 20.09.2007 for a period of 6 months purely on temporary basis by the Commissioner though they have not been figured in the list prepared by the Selection Committee pursuant to the advertisement dated 24.09.2005. The petitioners, thereafter, also participated in the selection process initiated pursuant to the advertisement dated 18.12.2007. However, they have not been selected by the Selection Committee. The petitioners having participated in the fresh selection process, now, cannot claim that they are entitled for regularisation. The petitioners also cannot contend that they are situated similarly with the candidates appointed on WP/5546/10 8 SSK 15.11.2007 and 14.12.2007. The candidates in these orders have undergone a selection process and are appointed in exercise of powers under Section 53(1) of the BPMC Act. We do not find any merit in the petition. The petition is accordingly dismissed. (RANJIT MORE, J.) (SMT. RANJANA DESAI, J.)