Kanade, J.:— The only point involved in this Writ Petition under Article 226 of the Constitution is as to whether the order passed by the learned District and Sessions Judge, Akola, dated June 27, 1979 appointing respondent No. 3 T.P Harkare as an Additional Clerk of the District Court, Akola, under Rule 330 of the Bombay Civil Services Rules, 1959 is on public grounds. The petitioner D.S Kulkarni is working as a Clerk of the Court (Senior Clerk Higher Grade) in the Court of the Civil Judge, Senior Division, was him. It is alleged that he is the senior most in the gradation list prepared by the District Judge, Akola and entitled to promotion to the post to which the respondent No. 3 is appointed by the learned District Judge, Akola.

2. Respondent No. 3 T.P Harkare was working as an Additional Clerk in the District Court, Akola and he was due to retire on June 30, 1979.

3. It appears that the respondent No. 3 applied to the District Judge, Akola for giving him further continuance in the service and has requested that he may be employed in the same post or he may be re-appointed as a Junior Clerk, which, according to him, is his substantive post. Nearly twenty other persons had also applied to the District Judge, Akola for the said post of Additional Clerk of the Court. Those twenty applicants also opposed the application of respondent No. 3 for further extension in service on the ground that the service or re-employment of respondent No. 3 in the same post would affect their promotions.

4. It further appears that one S.L Nandurkar and R.M Alkari who were also Senior Clerks (Higher Grade) and who were also to retire on June 30, 1979 had also applied to the District Judge, Akola for further extension or re-employment in the service.

5. The learned District Judge, Akola heard Mr. Nandurkar and Mr. Alkare. Their applications for re-employment were rejected. The learned District Judge, however, allowed the application of Shri T.P Harkare, respondent No. 3 and he has been re-employed in the same cadre and the post of Additional Clerk of the Court for one year, commencing from July 2, 1979. According to the petitioner, the appointment of respondent No. 3 in the same post as Additional Clerk of the Court has barred the promotion of the petitioner because he was the next incumbent to be promoted to that post.

6. The order of re-appointment of respondent No. 3 is challenged by the petitioner in this application on the ground that respondent No. 3 was not entitled to re-employment and that too in the same post, as the said appointment was not on the public grounds. It is further contended by the petitioner that the re employment of respondent No. 3 and posting him in the same post of Additional Clerk of the Court is illegal, unjust and violative of the right of equality guaranteed to the citizen of India under Articles 14 and 16 of the Constitution of India.

7. In paragraph 8 of the petition, it is further contended by the petitioner that the order of re-employment of respondent No. 3 seems to have been passed by the District Judge under the powers vested in him under Rule 330 of the Bombay Civil Services Rules, 1959. The petitioner further contented that even if the powers of the District Judge to grant re-employment is conceded, the District Judge has no power to retain respondent No. 3 as Additional Clerk of the Court and therefore the said re employment of the respondent No. 3 will be illegal and without jurisdiction and contrary to the provision of Rule 330 of Bombay Civil Services Rules, 1959. It is further contended that there is no public purpose involved in the re-employment of respondent No. 3 and that the appointment of respondent No. 3 is nothing but an act of favoritism shown towards respondent No. 3.

8. The application filed by the petitioner is resisted by respondent Nos. 1 and 2 contending inter alia that the petitioner is not entitled to the promotion to the post which is held by respondent No. 3 as Additional Clerk of the Court of District Judge, Akola. In that connection, it is further submitted that the promotion to a higher post is not a matter of right vested in the employee. It does not only depend upon the seniority, but upon many other factors like efficiency, intelligence, good work and such other factors. It is further contended that the order passed by the learned District Judge for re-employment of respondent No. 3 for one year which is of a temporary nature and the same is not for extension of his service. It is denied by respondents 1 and 2 that the order in question is illegal, without jurisdiction and contrary to Rule 330 of Bombay Civil Services Rules, 1959 and that the question of public ground was not involved in the re-employment of respondent No. 3. The petitioner's allegation regarding favoritism is also denied. It is pointed out by respondent Nos. 1 and 2 in the affidavit that the petitioner is named in the gradation list since prior to 1968. In 1968, when the appointment of a Clerk of the Court was made, the case of the petitioner was considered by the learned District Judge and his claim was rejected. He had filed appeal against the said order before the High Court which was also rejected and therefore the petitioner cannot claim a right to promotion for the post of Additional Clerk of the Court. It is further contended that the mere mention of his name in the gradation list cannot confer a right upon him to be promoted to that post and hence the petitioner could not legally challenge the impugned order of the District Judge, Akola.

9. Respondent No. 3 also opposed the application filed by the petitioner by way of filing an affidavit in reply. According to respondent No. 3, the petitioner had not made out any case as to how Articles 14 and 16 of the Constitution have been attracted to the facts of this case. It is further contended that the petitioner had also not demonstrated that any of his fundamental or legal rights have been infringed. It is also submitted by respondent No. 3 that the promotion to a higher post is not a matter of right vested in an employee. His right to promotion has been considered and the same is rightly rejected. It is denied by respondent No. 3 that the impugned order passed by the learned District Judge, is without jurisdiction and the same is passed while exercising the powers under Rule 330 of Bombay Civil Services Rules, 1959. The averment as to favoritism is also denied by respondent No. 3.

10. Mr. Kherdekar, the learned counsel appearing on behalf of the petitioner submitted that Rale 330 of the Bombay Civil Services Rules enables the heads of the departments to re-employ pensioners to non-gazetted posts. The re-employment can be made in posts to which the District Judge is competent to make appointments. It is further argued by Mr. Kherdekar that the appointment of respondent No. 3 is not on public grounds.

11. Mr. Jaiswal, the learned Additional Government Pleader for respondents 1 and 2 and Mr. C.G Madkholkar, learned counsel for respondent No. 3, submitted that the impugned order passed by District and Sessions Judge, Akola is with jurisdiction and the same is passed while exercising the power under Rule 330 of Bombay Civil Services Rules, 1959. It is further argued that the order is based on subjective satisfaction of learned District and Sessions Judge and hence it is not justiciable and accordingly, this Court should not interfere with the impugned order while exercising an-extra-ordinary jurisdiction under Article 226 of the Constitution of India.

12. In order to appreciate the argument advanced by Mr. Kherdekar, it is necessary to reproduce Rule 330 of the Bombay Civil Services Rules, 1959 which is as under:

“330 (5). A person, who is in receipt of a superannuation or retiring pension, shall not be re-employed or continue to be employed in service-paid from Consolidated Fund of India or of State or from a local fund, except on public grounds and in a purely temporary capacity.”

13. A careful reading of the Rule shows that there is an injunction not to re-employ or continue to be employed in service a person who is in receipt of a superannuation or retiring pension. However, an exception has been made to the said prohibitory injunction and that to make appointment only on public grounds and in a purely temporary capacity. The rule gives a discretion to the authority to re-employ a person who has reached the age of superannuation or in receipt of retiring pension. It appears that exercise of the power under Rule 330(a) is to be exercised sparingly and in a very exceptional circumstance. The compendium of the administrative and the financial powers delegated to the Judicial Officers at Serial No. 82 shows that the said powers can be used by the District Judges, Principal Judge of the City Civil and Sessions Court, Chief Judge of the Court of Small Causes, Bombay and the Chief Presidency Magistrate, Bombay. It appears from the language of Rule 330 that a discretion is given to the District Judge and other authorities mentioned above to use the said powers under Rule 330 of Bombay Civil Services Rules, 1959 only on two grounds viz. (1) on public grounds and (2) in a purely temporary capacity.

14. It is no where stated or defined as to what is meant by “public grounds”. In various statutes words and phrases “public interest”, “public good” and “public purpose” have been used and the Court had occasions to consider and interpret the said phrases. So far as the word “public grounds” is concerned, it has got to be read and construed in the context of the language of Rule 330 of the Bombay Civil Services Rules, 1959. Undoubtedly, the power under the said Rule is to be exercised in favour of an individual who has reached the age of superannuation or retired on pension, for his benefit, but such an appointment of an individual while exercising the powers under Rule 330, must be for the benefit of public administration and keeping in view the efficiency in the administration or stream lining the administration of public departments. In other words, the services of a person, being so re-appointed, in exercise of the powers under Rule 330 of the Bombay Civil Services Rules, must be indispensable and that too for the efficient working of the administration of the concerned department. If an efficient and experienced person retires in the department, there is bound to be some relaxation or inefficiency in the administration, because the person who is likely to be promoted to that post is bound to be less experienced and less efficient, in relation to the said post. Such a promoted may acquire some experience and knowledge of the department during the course of one year or so. In such a situation, in our view, it would not be proper and legal to exercise powers under Rule 330 to appoint the every retiring person to the said post, although temporarily till the next incumbent acquires sufficient experience and efficiency in the said post. In our view, merely because one happens to be efficient and experienced man compared with the other person who is next incumbent of the said post, his re employment should not be considered to have been made on public grounds. It must be established that the services of the retiring person are indispensable without whose services the administration of the department to which he is appointed cannot be properly and efficiently conducted or run. It is then a one, it can be said that the re-employment of such a person is made on public grounds. If the District Judges invariably start appointing the retired person to the same post in order to achieve more efficient administration or to streamline the entire administration of the department ignoring the claim of incumbent on the said post, in our view such exercise of powers should be improper, illegal and without justification and as stated above, cannot be considered to have been made on public grounds as contemplated by Rule 330 of Bombay Civil Services Rules, 1959.

14-A. In the present case, the Petitioner has not challenged the bona fide of the learned District Judge except a vague, and without particulars, reference to an act of favouratism in favour of Respondent No. 3 in paragraph 8 of the petition. The learned District Judge in paragraph 11 of his affidavit, has stated that on relevant date Mr. T.P Harkare was the senior official on the establishment of District Judge. During his service as a Senior Clerk, he had worked on all the four posts of the grade viz. Record keeper, Clerk of Court, Head Clerk and Nazir, District Court, Akola. He has thus the knowledge and experience of office work including inspection work. The other two Senior Clerks in the office of the District Judge have also retired with effect from 1st July, 1979. The persons who were likely to be promoted on the post hold by Mr. Harkare were practically new to the office work. While working as Head Clerk and also as a Nazir, District Court, Akola, Mr. Harkare was the chief member of the inspection party and in that capacity he conducted inspections in five Districts under the Inspecting District Judge, Akola.

15. It is further stated by the learned District Judge in his affidavit that the services of Mr. Harkare were requisitioned by the Registrar of the High Court at Bombay on various occasions for conducting inspections of the City Civil and Sessions Court, Bombay, Courts at Jalgaon (E.K) and Buldhana Districts. Very recently, in January 1979, he was included in the inspection squad of the High Court of Bombay for inspections of Bhandara and Nagpur Districts. Mr. Harkare is keeping good health and he is in as position to discharge the duties of the post to which he has been re-employed efficiently. For all these reasons, Respondent No. 3 was re-employed by virtue of powers vested under Rule 330 of the Bombay Civil Services Rules, 1959. The order of appointment is thus legal and proper. This statement of the learned District Judge has not been controverted by the Petitioner by filing the rejoinder to the said affidavit. It appears to that the learned District Judge has taken into consideration the various circumstances into account and it is found by the learned District Judge that the services of Mr. Harkare were indispensable as the District Judge had to conduct inspection of the District Courts. It was also found by the learned District Judge that the other two senior clerks of the office of the District Judge have also retired and the personnel who were likely to be promoted on the post held by Mr. Harkare were practically new to the office work and they could not be of much help in the administration as well as the inspection work. From the statements made by the learned District Judge in his affidavit, it is clear that a situation had developed in the District Court, at Akola wherein he was constrained to exercise his powers under Rule 330 of the Bombay Civil Services Rules, 1959. Having regard to the unchallenged statements made by the learned District Judge in his affidavit, we observe that the services of Mr. Harkare were indispensable and therefore in the circumstances of the case, the order passed by the learned District Judge re-employing Respondent No. 3 was on public grounds. Needless to say that the said appointment was purely of a temporary capacity.

16. It is to be noted that Rule 330 gives a discretion to the District Judge to re-employ a retired employee. The discretionary powers must be exercised honestly and not for corrupt or ulterior purpose. In exercising the discretion, the authority must have regard only to the circumstances suggesting one or the more of the matters relating to such appointment. The authority must act reasonably and not capriciously and arbitrarily. If it is established that there were no material upon which the authority would form the requisite opinion, then the Court must infer that the authority did not apply its mind to the relevant facts and the ingredients of Rule 330 and accordingly the order was illegal and without jurisdiction.

17. In the present case as stated above, the learned District Judge had applied his mind to the relevant facts and circumstances of this case. The learned District Judge has acted reasonably and appointed respondent No. 3 and that appointment cannot be said to have been made arbitrarily and capriciously. In view of the facts and circumstances of this case, we hold that the learned District Judge had acted judiciously and objectively in exercising his discretion under Rule 330 of the Bombay Civil Services Rules, 1959.

18. It is nextly argued by Mr. Kherdekar that Rule 330 read with original Note 3, since deleted and substituted by amendment (B.C.S.R Vol. II) to Appendix-1 Chapter XI of Bombay Civil Services Rules empowers the heads of the departments to re-employ under Rule 330 of Bombay Civil Services Rules, 1959. The new amendment is as under:—

(1) (2) (3) (4) (5) (6) 3 330 Power to re-employ pensioners— Administrative Departments of the Secretariat. Upto one year in respect of appointments of Class II posts. The pay on re-employment will be fixed according to rules. (a) to Gazetted posts (b) to non-gazetted posts. All Heads of Departments. In posts to which they are competent to make appointments, provided that the age on re-employment or during the period of re-employment does not exceed 60 years. —do—

19. According to Mr. Kherdekar, Rule 330 enables the heads of the departments to re-employ the personal to non-gazetted posts. The re-employment can be made in the post to which the District Judge is competent to make appointment. The power of the District Judge contained in Civil Manual Chapter XXVIII Para 521(1) authorises the District Judge to make appointment in Class-III and Class-IV of the Sub-ordinate Judicial service in the Civil Court from the list of candidates who are selected by the Advisory Committee formed for the purpose in each District. Clause II lays down that an Advisory Committee should be formed in each district to assist the District Judge in making appointments in Class-III and Class-IV services in the judiciary department. According to Mr. Kherdekar, a power given to the District Judge under para 521 read with the Government Resolution No. Misc. 1055/625/46-111, dated 26-12-1957 as amended by Government Resolution No. BCE/5265/3643-J., dated 22-2-1971 would show that the power is restricted to appointments of Stenographers, English Section-Writers, Regional Language Section-Writers, Bailiffs, Peons, Watchmen, Garners, Sweepers in Civil and Criminal Courts in the District, the appointments shall be made strictly in order of seniority from the list of candidates to be prepared.

20. Having regard to the provisions of para 521 and the Government Resolutions dated above, it is contended that the District Judge has no jurisdiction to re-employ the respondent No. 3 in the post of Additional Clerk of Court. It is not disputed by Mr. Kherdekar that the post of Additional Clerk of Court is essentially a post of promotion and the District Judge has got power to appoint an employee to the said post by way of promotion.

21. In our view, the word “appointment” means appointment both by way of promotion and direct recruitment. It is true that the District Judge has no jurisdiction to make direct recruitment to the post of Additional Clerk of Court, but he has got authority to appoint an employee to the said post by way of promotion. If the power is vested in the District Judge to appoint a person by way of promotion to the said post, we do not think that re-employment of respondent No. 3 to the post of Additional Clerk of the Court is without jurisdiction. In our view, the District Judge could re-employ respondent No. 3 in the post of Additional Clerk of the Court.

22. Respondent No. 3 was already acting as an Additional Clerk of the Court on the day on which he reached the age of superannuation. He could be re-employed having regard to the powers under Rule 330 of Bombay Civil Services Rules, 1959 (and that re-employment could be either through a direct recruitment or by way of promotion). Further it appears that if the power of the District Judge is restricted to appoint an employee to the post to which the District Judge is competent to make appointment initially as contended by Mr. Kherdekar, then it would mean that the District Judge would be only providing an employment to a retired person who is in need of an employment and then in that case it cannot be said that the appointment made by the District Judge is on public grounds. As stated above, in order to give effect to the word “public grounds” the appointment must be indispensable and inevitable for the smooth and efficient running of the administration of the District Court. The persons to be appointed must be experienced, efficient and indispensable in a particular post. It is only then it can be said that the appointment is made by the District Judge on public grounds.

23. Having regard to the language used in Rule 330 of Bombay Civil Services Rules, 1959, we construe that the District Judge has got authority to re-employ a person who has reached the age of superannuation to the post held by him at the time of his retirement. It is because the District Judge has got a power to appoint to the said post by way of promotion.

24. Lastly, it is argued by Mr. Kherdekar that the impugned order passed by the learned District Judge is silent about the public grounds. It is further contended that the impugned order does not disclose that the public ground was very much present in the mind of the District Judge at the time of the impugned order was passed. It is true that the learned District Judge has not used the word “public grounds” but he has used the word “public interest”. In paragraph 11 of his affidavit, the learned District Judge has given reasons and the facts and circumstances which necessitated him to re-employ respondent No. 3 in the post of Additional Clerk of the Court. We do not find in Rule 330 of Bombay Civil Services Rules, 1959 that the District Judge is supposed to state reasons in writing in the order of appointment itself. In Rule 161 of Bombay Civil Services Rules, it is necessary to record the reasons in writing in the matter of retention in service of a Government servant other than class IV servant, retiring compulsorily on attaining the age of superannuation. That is not the requirement of Rule 330 of Bombay Civil Services Rules, 1959.

25. We have accepted the reason given by the District Judge in para 11 of his affidavit in reply that he has applied his mind to the facts and circumstances of the case and exercised his power under Rule 330 on public grounds. Therefore, there is no substance in this submission also raised by Mr. Kherdekar. No other point is raised in this petition except discussed above.

26. Having regard to the reasons and observations made above, we do not feel it is a fit case to interfere with the order of re-employment of respondent No. 3 to the post of Additional Clerk of Court under Article 226 of the Constitution of India. In the result, rule is discharged. In the circumstances of the case, there will be no order as to costs.

27. We have announced this judgment to-day in the open Court. At this stage, Mr. Kherdekar requested for a leave to appeal to the Supreme Court.

28. Having regard to the facts and observations made herein above, leave is refused.

29. Mr. Kherdekar also asked for stay of the operation of the order passed by this Court to enable him to file a Special Leave Application to the Supreme Court, which is hereby rejected.

Rule discharged.