IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.526 OF 2008 IN WRIT PETITION NO.2069 OF 2007 Mr.Santhosh S.Korlekar & Anr. )..Petitioners Versus Municipal Corpn. of Gr.Mumbai & Ors. )..Respondents ---- Mrs.Anjali Pawar for the petitioners. Mr.C.U.Singh, Sr.Counsel with Mrs.A.K.Savla for respondent nos.1 & 2. Mr.V.A.Gangal Special Counsel with Mr.D.A.Nalawade Govt.Pldader and Mr.S.S.Joshi AGP for respondent no.6. Mrs.S.N.Pillai for respondent no.3. ---- Coram : F.I.Rebello & R.S.Mohite,JJ Date : 8.12.2008. PC 1. By the present motion the petitioner has moved this Court amongst others to direct respondent nos.1 & 2 not to grant promotion to the post of Deputy Municipal Commissioner (vigilance) to the respondent no.4 as per proposal under caption "urgent work" No.253 dated 8.10.2008 and several other consequential reliefs. 2. It is not necessary to set out the facts in detail. Before the Supreme Court in Civil Appeal : 2 : No.4073 of 1994 decided on 22.4.1994, for promotion to the post of Assistant Engineer in so far as reserved category candidate in the appeal were is concerned, they were given a deemed date of 24.4.1980. As that was not implemented, a contempt petition came to be filed bearing Contempt P.(C) No.297/07. A statement was made on behalf of the corporation that they had prepared the seniority list and considered the case for promotion based on the deemed date for 24.4.1980. . In so far as the post of AE (Civil) is concerned, the petitioner was shown at serial no.357 and respondent no.4 at serial no.293. 3. The seniority list for Executive Engineer (Civil) was circulated on 3.11.1998. In terms of this senioity list the petitioner was shown at serial no.357 and respondent no.4 at serial no.311. On 10.2.2000 another seniority list was circulated based on rule-1(c) to the post of Executive Engineer and in this list the petitioner was shown at serial no.349 and respondent no.4 was shown at serial no.426. 4. In the meantime, by a circular dated 26.9.2003 it was decided not to proceed with the seniority list sought to be done in terms of rule-1(c) as it was found that it was based on misinterpretation of : 3 : rule-1(c). Notification was issued on 26.10.2004 for filing in posts by promotion when resolution was passed. Thereafter on 2.11.2004 a tentative seniority list of Dy. Exh.Engineer (W) was circulated in which respondent no.4 was shown at serial no.34 and petitioner at serial no.26. It is true that in this seniority list both were given the date 9.3.2004. 5. In the seniority list of Assistant Engineer based upon the direction of the Supreme Court the date of promotion of the petitioner was shown as 1.11.1996 and that of respondent no.4 as 29.11.1991. Promotions from that post to the higher post was strictly based on seniority-cum-merit. In other words, therefore, it would be seniority-cum-fitness in the absence of a bench mark. We therefore, find that the respondent no.4, considering the seniority list as circulated, is senior to that of the petitioner. 6. In our opinion, considering the seniority list and as vacancy is of the post of Deputy Municipal Commissioner (vigilence) and prima facie as of today the respondent no.4 is senior to the petitioner, in our opinion, the reliefs as prayed for by the petitioner in the present motion cannot be granted. It will be open to the Corporation to proceed according to law. : 4 : 7. We make it clear that any promotion done by the Corporation will be subject to the final order in this petition. 8. With the above directions, motion disposed off. (R.S.Mohite,J) (F.I.Rebello,J)