Dipak Misra, J.

Invoking the extra-ordinary jurisdiction of this court under Article 226 of the Constitution of India, the petitioners have prayed for issue of writ of certiorari for quashing of the standing order No. 3/1989 dated 27-1-1989, the minutes of the DPC dated 13-6-1989 as well as the order of promotion dated 26-6-1989 in respect of respondents 3 and 4 and to command the respondents to consider the case of the petitioner for promotion to the post of Chief Sanitary Inspector with effect from 26-6-1989 and confer him all consequential benefits.

The facts which are essential to be stated is that the petitioners, two in number, were promoted to the post of Sanitary Inspector in Health Department of the Municipal Corporation, Bhopal, sometimes in May and June of 1968. Their promotion on the said post was concurred with by the Madhya Pradesh Public Service Commission and the same was intimated to them on 12-5-1977 by the Additional Commissioner of the Corporation. While the petitioners were functioning in the said post, the respondent No. 3 was promoted to the post of Sanitary Inspector on 3-7-1978 for a period of six months subject to concurrence of Public Service Commission. As pleaded, the said respondents continued in the said post without the concurrence of the Public Service Commission till he was further promoted to the Chief Sanitary Inspector on 29-6-1989 in violation of the provisions of section 58(1)(I) of the M. P. Municipal Corporation Act, 1956 (hereinafter referred to as the). It is urged that the respondent No. 3 was even not entitled to be promoted to the post of Sanitary Inspector as he lacked 5 years of qualifying service. It is further putforth that the respondent No. 4 was promoted to the post of Sanitary Supervisor on 27-6-1983. The said respondent had not put in the requisite qualifying service for 5 years for higher services but he was promoted to the post of Sanitary Inspector by order dated 24-12-1985. Similar assertions have been made assailing his promotion to the post of Chief Sanitary Inspector.

According to the writ petitioners the Commissioner of the Corporation by order dated 31-5-1989 gave his approval to the final seniority list of Sanitary Inspectors serving in the Health Department of the Corporation. The petitioners were shown senior to respondents 3 and 4. It is urged that on 13-6-1989, a Departmental Promotion Committee met consisting of certain members which considered the cases of Six Sanitary Inspectors for filling five vacant posts of Chief Sanitary Inspectors. The members of the DPC, Considering the cases found one M. K. Jain, unfit for field work on health grounds, but selected the remaining five candidates and recommended them for promotion to the post of Chief Sanitary Inspectors of the Corporation. It is contended that as per the instructions of the State certain posts were filled up from amongst the reserved quota and the DPC recommended on that score though same was not necessary. It is also putforth that the concurrence of Public Service Commission was not taken as the DPC recommended that concurrence was not necessary. After the said promotions were effected the petitioners submitted an application for reconsideration to the Corporation in accordance with Bhopal Municipal Corporation Service Conditions (Discipline and Appeal) Bye-laws. Thereafter, the DPC recommended the case for review as assertions made by the petitioners were correct but, the Commissioner arbitrarily rejected the application of the petitioners by order dated 30-8-1989. It is urged in the petition as concurrence of the Public Service Commission is mandatory, and had not been taken the promotional benefit conferred on the respondents 3 and 4 are defective; that the respondent No. 3s initial promotion to the post of Sanitary Inspector was illegal inasmuch he did not have the eligibility criteria to be promoted; that the introduction of reservation was not a mandate of the Bye-laws but, the authorities followed the basic requirement of reservation which nullifies the selection; that the respondent No. 4 was allowed to continue in the post of Sanitary Inspector though he was promoted for a period of six months; that dispensation with the concurrence with the Public Service Commission vitiates the selection as such concurrence is the mandatory warrant; that assuming the principle of reservation is made applicable that cannot justify the selection of respondents 3 and 4 inasmuch the process of selection taken recourse to in respect of the respondents 3 and 4 is replete with incurable illegalities; and that the principle of seniority-cum-merit which was being followed by the Corporation for a considerable length of time has been given a go by without any rhyme or reason. In this backdrop, prayer has been made as have been indicated hereinabove.

A counter-affidavit has been filed by answering respondents 1 and 2 contending, inter alia, that the respondents 3 and 4 were promoted as Sanitary Inspectors as per procedure prevailing in the Corporation and Public Service Commission had concurred with in respect of the third respondent on 15-2-1983 for the post of Sanitary Inspector and in respect of respondent No. 4 on 7-10-1987. These documents have been brought on record as Annexure R-1 and Annexure R-2. It is putforth that the State Government has issued instructions for representation of Scheduled Caste and Scheduled Tribes for Municipal Services and the same has been adopted by the Bhopal Municipal Corporation. It is the stand of the Corporation that an amendment was incorporated on 26-10-1988 under section 58 of thewhereby it has been laid down that promotion in respect of certain posts the concurrence of Public Service Commission was not necessary and, therefore, the promotion of the respondents were not invalid. It is contended that averments have been made on the foundation of un-amended provisions and, therefore, the writ petition deserves to be thrown overboard. It is the stand of the Corporation that it had no recruitment rules and, therefore, the condition of the Services were to be governed by the Standing Order of M. P. Government by which the Municipal Corporation has to act till the recruitment rules are framed. The Commissioner had issued the Standing Order No. 39576, adopting the policy as per Annexure R-4. Roster for promotion is required to be maintained where the number of post are more than 20 and the respondents No. 3 and 4 were promoted as they belong to Scheduled Caste as Scheduled Tribe Candidates were not available.

I have heard Mrs. Shobha Menon, learned Senior Counsel for the petitioner and Mr. Ajay Mishra, learned senior counsel for the respondent No. 1 and 2.

It is submitted by Mrs. Menon that the document by which the government has issued Circular which has been adopted by the Municipal Corporation, is not the proper way adoption as the same has not been included in the Bye-laws. It is contended by her that assuming the adoption is treated to be valid the concept of reservation has not been followed in an appropriate manner. The learned Senior counsel has canvassed that the old provisions contained in section 58(1)(I) was to be respected and, therefore, it is to be taken into consideration and as a logical corollary prior consultation with the Public Service Commission is the imperative mandate.

Mr. Ajay Mishra, per contra, has contended that the respondents No. 3 and 4 were appointed to the post of Sanitary Inspector and there is concurrence/approval of the Public Service Commission, and therefore, their promotion to the post of Sanitary Inspector cannot be flawed. It is canvassed by him that by the Standing order of the Municipal Corporation as contained in Annexure R-4, the reservation policy of the State Government has been adopted and, therefore, the challenge on that score is totally untenable. The learned counsel has referred me to section 58 to show the amendment and the action taken by the State Government by issuing a general order on 26-10-1988 whereby the power to appoint employees in the pay-scale 1350-2220 was given to the Commissioner and, hence, concurrence/approval of Public Service Commission which was earlier required was not necessary.

To appreciate the rival submissions raised at the Bar, I have carefully perused the documents contained in Annexure R-1 and Annexure R-2. The said documents clearly show that there was concurrence by the Public Service Commission in regard to grant of promotion to the respondent No. 3 and 4 for the post of Sanitary Inspector. Thus, challenge on this score by the petitioners is totally without substance.

The next aspect which requires to be considered is whether the concurrence of the Public Service Commission was necessitous while promoting the respondent No. 3 and 4 to the post of Chief Sanitary Inspector. In this context, the learned counsel for the respondents has referred me to section 58 of the Act, which was substituted by section 2 of the M. P. Act No. 10/1977. He has pointed out that the said provision has undergone substantial change vide Act No. 5/1982 which came into force w.e.f. 5-3-1982. The said amended provision reads as under:-

Appointment and salary of Corporation Officers and Servants - (1) Subject to the provisions of this Act the Corporation shall appoint a City Engineer, a Health Officer, a Revenue Officer, a Municipal Secretary and an Accounts Officer and may appoint a Deputy Municipal Commissioner, and such other officers and servants as are necessary for the efficient carrying out of the purpose of this Act and may assign to them such date and pay them such salaries and allowances, pension and gratuities and may make on their behalf such payments to the provident or annuity funds as the Corporation may determine by Bye-laws made in this behalf under section 427 :

Provided that:-

(i) the power of appointing any person a municipal post which carries a maximum scale of any [as the State Government may, from time

(ii) the power of appointing any person a municipal post which carries

(iii) any appointment made within his power by the Commissioner shall be reported for information to the Standing Committee;

Provided further that appointment to be made by the Standing Committee shall be made in consultation with the State Public Service Commission:

The learned senior counsel for the Corporation has submitted that the State Government exercising the powers conferred on it under section 58(1) and (II) has issued general order on 26-10-1988 prescribing the pay-scale of posts, for which the Commissioner has been empowered to make appointment as per order dated 26-10-1988. The said general order lays a postulate that the post which carries the pay-scale of Rs. 1350-2220 falls within the authority of the Commissioner. It is submitted by him that the respondents No. 3 and 4 were promoted to the post of Chief Sanitary Inspector after the general order was passed by the State Government and, therefore, the concurrence of the Public Service Commission was not needed. Thus, the stance in that regard made by the petitioners does not merit consideration.

The next facet, a vital one, relates to reservation. It is not disputed that the respondents No. 3 and 4 belong to Scheduled Caste Category. They have been put in different class and their cases were not considered as general candidates. As is manifest from the return, the concept of reservation was introduced in the Corporation by the Standing Order No. 3/1989 whereby the Corporation adopted the reservation policy of the State Government. Such standing order is in consonance with the policy of the State Government. The State Government has the authority to take a policy decision in this regard. The only submission putforth by Mrs. Menon is that the basic factum of reservation has not been incorporated in the Bye-laws and, hence, it is illegal. In view of the adoption, I am of the considered opinion that such non-incorporation in the bye-laws would not vitiate the conception of reservation as a condition of service in the Municipal Corporation as they have followed the policy decision of the State Government and the Standing order has been issued. That apart, the said concept of reservation in the Municipal Services has came to stay and there is no need to disturb the same on the ground of belated stand that it has not been incorporated in the Bye-laws. As the respondents 3 and 4 have been selected as reserved category candidates the petitioners cannot have any cavil over them as petitioners could not be considered in respect of the said posts.

11-A. As all the points urged by the learned Senior counsel for the petitioners are devoid of substance, the inevitable result of the writ petition is dismissal, which I direct. However, in the peculiar facts and circumstances of the case, there shall be no order as to costs.