The main legal point established in the judgment is that the Corporation, its Commissioner, and General Body Resolution had no jurisdiction to issue, confirm, approve, sanction, ratify the suspension order and subsequent notice for holding departmental inquiry against the Petitioner, as the Petitioner was appointed as Additional Municipal Commissioner by the State Government under Section 39A of the MMC Act.

JUDGMENT

Abhay Ahuja, J. - RULE. Rule made returnable forthwith. With the consent of the Counsel for the parties, the Petition is finally heard.

2. By this Petition filed under Article 226 of the Constitution of India,1950, Petitioner is challenging the suspension order dated 18th June, 2018 issued by Respondent No.1- Municipal Corporation, the General Body Resolution dated 7th July, 2018, the Resolution No.6 dated 20th June, 2019 and Notice of Departmental Inquiry dated 7th August, 2019. The Petitioner has prayed for the following reliefs:-

"(a) This Hon'ble Court may be pleased to issue writ of Mandamus or any other appropriate writ in the nature of Mandamus or any other appropriate Direction or Order thereby directing Respondent No.1- Corporation and its Municipal Commissioner to forthwith withdraw and/or cancel -

(i) the impugned Suspension Order dated 18 th June, 2018, (Exhibit U);

(ii) the impugned General Body Resolution dated 7 th July, 2018, (Exhibit V );

(iii) the impugned General Body Resolution No.6 dated 20 th June, 2019 (Exhibit Y); and

(iv) the impugned Notice of Departmental Inquiry dated 7 th August. 2019 (Exhibit Z).

(b) This Hon'ble Court may be pleased to issue a writ of certiorari or any other appropriate writ in the nature of Certiorari or any other appropriate Direction or Order thereby quashing and/ or setting aside-

(i) the impugned Suspension Order dated 18 th June, 2018, passed by the Municipal Commissioner of Respondent No.1 (Exhibit U);

(ii) the impugned General Body Resolution dated 7 th July, 2018, of Respondent No.1 (Exhibit V);

(iii) the impugned General Body Resolution No.6 dated 20 th June, 2019 of Respondent No.1 (Exhibit Y); and

(iv) the impugned Notice of Departmental Inquiry dated 7 th August. 2019 issued by the Commissioner of Respondent No.1 (Exhibit Z).

(c) This Hon'ble Court may be pleased to issue writ of mandamus or any other appropriate writ in the nature of Mandamus or any other appropriate Direction or Order thereby directing Respondent No.1 - Corporation and its Municipal Commissioner to forthwith re-instate the Petitioner in the post of Additional Commissioner of the 1 st Respondent- Corporation."

3. Brief facts are that Petitioner was initially appointed as Assistant Municipal Commissioner of the Kalyan Dombivali Municipal Corporation ("KDMC"/-the "Respondent-Corporation") in the year 1995 and his appointment was approved by the State Government under Section 45 of the Maharashtra Municipal Corporations Act, 1949 (the "MMC Act") on 1st February, 1997. On 9th May, 2003, Petitioner was recommended for being promoted to the post of Dy. Municipal Commissioner by the Departmental Promotion Committee of the Staff Selection Committee of the Corporation under Section 54 of the MMC Act when he was appointed as Dy. Municipal Commissioner w.e.f. 9th May, 2003. His appointment as Dy. Municipal Commissioner was approved/ sanctioned by the General Body of the KDMC on 18th July, 2003. The Urban Development Department (UDD) of the Government of Maharashtra issued notification dated 23rd July, 2005, appointing the Petitioner as Dy. Municipal Commissioner w.e.f. 9th May, 2003. It is submitted that the process under Section 45, 53 and 54 of the MMC Act was duly followed.

4. Pursuant to Maharashtra Act No.39 of 2011 which came into force w.e.f. 25th September, 2011, Section 39-A was added to the MMC Act which provided for appointment of Additional Municipal Commissioner in the services of Municipal Corporations in the State. Section 39-A is reproduced as under:-

"39A.(1) The State Government may create one or more posts of Additional Municipal Commissioners in the Corporation and appoint suitable persons on such posts, who shall, subject to the control of the Commissioner, exercise all or any of the powers and perform all or any of the duties and functions of the Commissioner.

(2) Every person so appointed as the Additional Municipal Commissioner shall be subject to the same liabilities, restrictions and terms