(V.M. Kanade, J.)

1. Heard.

2. Rule. Rule is made returnable forthwith. Respondents waive service. By consent of parties, matter is taken up for final hearing.

3. By this Petition which is filed under Article 226 of the Constitution of India, Petitioner is seeking the following reliefs:-

(a) This Hon'ble court may be pleased to quash and set aside Resolution No.920 dated 25.10.2012 (Exhibit 'E' to the Petition) and Order No. MPS/3800(83) dated 02.11.2012 (Exhibit 'G') and Order No. MPS/3800 (84) dated 02.11.2012 (Exhibit 'H') whereby the Respondent Nos. 2 and 3 were promoted to the post of Deputy Municipal Commissioner;

(b) This Hon'ble Court may be pleased to issue a Writ of Mandamus or a Writ in the nature of mandamus or any other appropriate writ, order or direction, directing the Respondent No.1 to promote the Petitioner to the post of Deputy Municipal Commissioner with effect from 02.11.2012;

(c) Pending the hearing and final disposal of this Petition, this Hon'ble Court may be pleased to stay the operation and effect of Resolution No.920 dated 25.10.2012 (Exhibit 'E' to the Petition) and stay the operation and effect of Order No. MPS/3800(83) dated 02.11.2012 (Exhibit 'G') and Order No. MPS/3800(84) dated 02.11.2012 (Exhibit 'H') whereby the Respondent Nos. 2 and 3 were promoted to the post of Deputy Municipal Commissioner;

(d) Pending the hearing and final disposal of this Petition, this Hon'ble Court may be pleased to direct the Respondent No.1 to promote the Petitioner to the post of Deputy Municipal Commissioner;

(e) Pending the hearing and final disposal of this Petition, this Hon'ble Court may be pleased to restrain the Respondent No. 1 from making any promotions to the post of Deputy Municipal Commissioner till the Petitioner is promoted to the post of Deputy Municipal Commissioner;

(f) For ad-interim and interim reliefs in terms of prayer clause (c ) to (e) above;

(g) For costs of this Petition;

(h) For such further and other reliefs as the nature and circumstances of the case may be required.”

4. Mr. J.P. Cama, the learned Senior Counsel appearing on behalf of the Petitioners, at the outset, submitted that if the prayer clause (b) is granted, the Petitioner would not press for prayer clause (a).

5. Brief facts which are relevant for the purpose of deciding this Petition are as under:-

6. Petitioner was appointed to the post of Assistant Commissioner in Respondent No.1 – Municipal Corporation with effect from 1/4/2000. A proposal was given for promotion of Assistant Commissioners by Chief Officer of the Corporation dated 22/8/2012. In the said proposal, it was specifically mentioned that three posts of Deputy Municipal Commissioners were to be filled in from the open category of Assistant Commissioners on the basis of seniority-cum-merit. The name of the Petitioner was listed at Serial No.1 in the said list. A meeting of the Departmental Promotion Committee presided over by the Municipal Commissioner was held on 24/9/2012 for considering promotion of Assistant Commissioners to the post of Deputy Municipal Commissioner. The Departmental Promotion Committee held that though the Petitioner had satisfied the criteria of experience and gradation in the confidential report, a criminal case had been filed against the Petitioner. It further noted that this Court had stayed the investigation of the criminal case by its order dated 18/12/2006. The Departmental Promotion Committee, however, noted that it was necessary to conduct preliminary inquiry against the Petitioner and therefore had proposed a preliminary inquiry against the Petitioner. It further recommended that provisional promotion should be granted to the Petitioner. However, the said promotion would be subject to the result of the preliminary inquiry. The Departmental Promotion committee, however, found Respondent Nos. 2 and 3 suitable for promotion and recommended that they be promoted as and when vacancies arise in the post of Deputy Municipal Commiss