R.C Mankad, A.C.J:— The controversy which we are called upon to resolve in this appeal is whether the decision of the Ahmedabad Municipal Corporation (‘Corporation’ for short) - respondent No. 1 herein to extend the services of F.E Dastoor (‘Dastoor’ for short) - respondent No. 3 herein, who was employed as Chief Officer (Fire Brigade) for a period of one year with effect from May 1, 1990 is legal.

2. In order to appreciate the rival contentions, it is necessary to set out in detail the facts giving rise to this litigation. Post of Chief Officer (Fire Brigade) (‘Chief Officer’ for short) is the highest post in the Fire Brigade of the Corporation. Since arguments at length have been advanced on the question of reservation policy of the Corporation, we may state that one, S.M Barucha was appointed as Chief Officer prior to January 1, 1972. S.M Barucha attained the age of superannuation in December 1974. However, his services were extended for a period of one year with effect from January 1, 1975. He was given further extension of one year with effect from January 1, 1976. On expiry of the period of extension of S.M Barucha, one U.U Shaikh was appointed as Chief Officer with effect from January 1, 1977. U.U Shaikh died in March 1977 and, on his death, Dastoor held charge of the post of Chief Officer. It appears that there was controversy whether Dastur was qualified to be appointed as Chief Officer. R.C Jadeja (‘Jadeja’ for short) respondent No. 4 herein, who was a senior officer in the Fire Brigade of the Corporation, claimed that he was the only officer qualified to be appointed to the post of Chief Officer. On the other hand, Dastoor, who was senior to Jadeja, claimed that he was senior to Jadeja and was qualified to be appointed as Chief Officer. According to the Corporation, both Dastoor and Jadeja were not qualified to be appointed as Chief Officer. There was litigation in regard to the said controversy. In the meantime, it appears that the Corporation made attempts to directly recruit Chief Officer. But these attempts failed as no suitable candidate was available. The controversy arising out of rival claims made by Dastoor and Jadeja was settled and the Corporation decided to amend the recruitment rules and to accommodate both Dastoor and Jadeja. A decision was taken to create a post of Additional Chief Officer. New recruitment rules for the posts of Chief Officer and Additional Chief Officer were framed on August 20, 1981 which were published in the Gazette of August 27, 1981. Qualifications prescribed for the posts of Chief Officer and Additional Chief Officer are same in these recruitment rules. It is not disputed that, under the recruitment rules framed in 1981, both Dastoor and Jadeja are qualified to be appointed to the posts of Chief Officer and Additional Chief Officer. Dastoor was appointed as Chief Officer and Jadeja as Additional Chief Officer with effect from September 23, 1981. Dastoor attained the age of superannuation in the month of April 1990 and under Regulation 3(A) of the Regulations (‘Regulations’ for short) framed by the Standing Committee which are in Chapter IV of Manual II of the Bombay Provincial Municipal Corporation Act, 1949 (‘Act’ for short) he was to retire from service after office hours on April 30, 1990. Regulation 3(A) of the Regulations reads as follows:—

“3(A). Except as provided in the following clause, the date of compulsory retirement of a Municipal Officer or a servant other than an inferior servant and/or class IV (Four) servant shall be the last date (after office hours) of the month in which he attains the age of 58 years. He may be retained in service after such date of compulsory retirement if found necessary in the Municipal interests only with the previous sanction of the Corporation.”

3. It would thus appear that Municipal Officer or an employee would retire on the last date (after office hours) of the month in which he attains the age of 58 years. He may, however, be retained in service after such date of compulsory retirement, if found necessary in the municipal interests only with the previous sanction of the Corporation. The impugned decision of the Corporation is taken under the aforesaid Regulation 3(A). The Municipal Commissioner of the Corporation, by his letter dated April 26, 1990 addressed to the Municipal Secretary, after referring to the outstanding service record of Dastoor, proposed to extend his services by one year with effect from May, 1, 1990 in the interests of Municipal Corporation. This letter of the Municipal Commissioner was placed before the Standing Committee of the Corporation on the same day, i.e April 26, 1990, and the Standing Committee, by its resolution No. 180 of 1990-1991, taking into consideration the services rendered by Dastoor, decided that it was in the Municipal interest that Dastoor continues to be in the service of the Corporation and Ahmedabad city. The Standing Committee, therefore, decided to extend the services of Dastoor for a period of one year with effect from May 1, 1990, subject to the approval of the Corporation and the permission of the High Court in view of the pendency of Special Civil Application No. 3140 of 1990 out of which the present appeal arises. The Corporation in its meeting held on May 11, 1990, by its resolution No. 130 of 1990-1991 approved the resolution No. 180 passed by the Standing Committee, which is adverted to above. This decision of the Corporation is under challenge in this appeal.

4. Appellant is a registered trade union and represents the employees of the Fire Brigade of the Corporation. The main grievance of the appellant was and is that the Corporation is not making appointment to the post of Chief Officer in accordance with the policy of reservation. It is contended that the Corporation has adopted the reservation policy of the State Government and, under this policy, it was required to appoint candidate belonging to the reserved category to the post of Chief Officer. The Corporation, however, in violation of this policy of reservation made appointments of Bharucha, Shaikh and Dastoor. The appellant apprehended that, on retirement of Dastoor from service, the Corporation would not follow the reservation policy, as in the past, and deprive Scheduled Caste/Scheduled Tribe candidate of appointment to the post of Chief Officer. The appellant submitted that, according to its information, Corporation was likely to give extension to Dastoor, who was holding the post of Chief Officer and who belongs to the general category to defeat the claim of candidates belonging to the reserved category. It was submitted that qualified candidates belonging to reserved categories were available and there is no reason or justification not to follow the reservation policy for appointment to the post of Chief Officer. According to the appellant, denying appointment to Scheduled Caste/Scheduled Tribe candidate to the post of Chief Officer would be in violation of the principles of equality enshrined in Articles 14 and 16 of the Constitution. It was to prevent the Corporation from appointing any person other than one belonging to Scheduled Caste/Scheduled Tribe to the post of Chief Officer that the appellant approached this court by way of the said Special Civil Application No. 3140 of 1990. This petition was filed on April 2, 1990. It may be recalled that Dastoor was to retire from service on attaining the age of superannuation with effect from April 30, 1990.

5. The appellant's petition was placed for admission before the learned Single Judge of this Court on April 10, 1990 and he passed the following order:—

“Notice pending admission returnable on 19.4.1990 Meanwhile respondents are directed to maintain status quo as on today regarding appointment of Chief Officer, Fire Brigade.”

6. The ad-interim relief was extended upto April 24, 1990 by order dated April 20, 1990. The Corporation sought clarification as regards the interim relief and the learned Single Judge, by his order dated April 24, 1990, made the following clarification:—

“Ad-interim relief granted earlier is clarified to the effect that Standing Committee of respondent-Municipal will be at liberty to take decision in respect of extension of services of Mr. F.E Dastoor-respondent herein. However the decision that may be taken shall not be implemented without the permission of the Court. S.O to 30.4.90”

7. The above ad-interim relief was continued from time to time.

8. It is after the clarification made by the learned Single Judge on April 24, 1990 that the Standing Committee passed Resolution No. 180 April 26, 1990, which is adverted to above. As already observed above, the Municipal Corporation passed Resolution No. 130 approving the resolution of the Standing Committee on May 11, 1990. The resolution of the Standing Committee is at Annexure-P to the petition and resolution of the Corporation is at Annexure-S to the petition. After the resolutions were passed by the Standing Committee and the Corporation the appellant amended the petition to challenge the said resolutions. It was submitted by the appellant that the resolutions are illegal and violative of Regulation 3(A) of the Regulations. It was submitted that Regulation 3(A) required that it was necessary to obtain prior approval of the Corporation before extending services of a municipal employee and such extension could be given only in “municipal interest”. The impugned resolutions of the Standing Committee and the Corporation were in violation of Regulation 3(A) inasmuch as (I) no prior approval of the Corporation was obtained; and (II) it was not shown that continuation of Dastoor in service was in the interest of the Corporation. It was submitted that it is only when the services of Dastoor were indispensable and no other good officer was available that Dastoor could have been given extension of service in municipal interest. It was submitted that the above resolutions have taken into account only the services of Dastoor while granting him extension. The Standing Committee and the Corporation had not taken into account the outstanding services rendered by other officers of the Fire Brigade of the Corporation before taking decision to extend the services of Dastoor. The impugned resolutions were passed without application of mind and without having regard to the reservation policy of the Corporation. The appellant, therefore, prayed that the resolutions at Annexures ‘P’ and ‘S’ may be declared to be illegal, unconstitutional and bad in law; and the Corporation may be directed to fill up the post of Chief Officer from amongst Scheduled Caste/Scheduled Tribe candidates, in accordance with its reservation policy. The appellant also sought direction against the Corporation to fill up other posts of Deputy Chief Officer of Fire Brigade from Scheduled Caste/Scheduled Tribe candidates in accordance with its reservation policy. The appellant also sought the injunction restraining the Corporation from giving extension to Dastoor.

9. Learned Single Judge, by his order dated May 14, 1990, admitted appellant's petition and granted interim relief directing the Corporation not to implement and act upon resolution Annexure-P passed by the Standing Committee, which was approved by the Corporation by its resolution Annexure-S passed on May 11, 1990, by which extension of service for a period of one year was granted to Dastoor. The order granting interim relief, as aforesaid, was challenged by the Corporation and Dastoor by filing appeals being Letters Patent Appeal No. 198 of 1990 and 199 of 1990. It appears that, after the filing of the said appeals, petition filed by the appellant was ordered to be placed for final hearing. The learned Single Judge heard the petition and, by his judgment and order dated July 24, 1990, rejected the petition and discharged the rule with no order as to costs. In view of the final disposal of the petition filed by the appellant, Letters Patent Appeal Nos. 198 of 1990 and 199 of 1990, adverted to above, became infructuous and, therefore, this Bench, by its order passed on July 26, 1990, dismissed the said appeals. The appellant being aggrieved by the rejection of its petition by the learned Single Judge, as aforesaid, has filed this appeal.

10. The main contention of the appellant is that the extension of one year granted to Dastoor is in violation of Regulation 3(A) of the Regulations and that, such extension would contravene the reservation policy of the Corporation. It is submitted that Regulation 3(A) provides for compulsory retirement of a municipal officer or a servant on the last date of the month in which he attains the age of 58 years. This Regulation empowers retention of the municipal officer or servant in service after such date, if it is found necessary in the municipal interest, with the previous sanction of the Corporation. It is urged that the Regulation lays down that municipal officer or servant “may be retained in service” after the date of his compulsory retirement if following conditions are satisfied:—

(1) it is found necessary in municipal interest, and

(2) there is previous sanction of the Corporation.

11. It is further urged that use of the expression “retain in service” is significant. This expression suggests that there has to be continuity of service from the date of retirement. In other words there cannot be break in the service and if there is break, it could not be said that municipal officer or servant is retained in service. “Retained” it is submitted, clearly indicates that officer or servant, who is in service, is to be retained. Therefore, once officer or servant retires from service, he cannot be retained in service. In other words, once the retirement of officer or servant becomes effective, the question of retaining him in service does not survive. Therefore, in order to retain officer or servant in service, decision that such retention is in municipal interest has to be taken before the actual date of his retirement. Previous sanction of the Corporation is also necessary to be obtained before the date of actual retirement. It is urged that once the officer or servant actually retires from service, he cannot be retained in service nor his services can be extended even if it is in the municipal interest to do so and previous sanction of the Corporation is obtained. In the instant case, according to the appellant, the Corporation passed resolution approving the resolution of the Standing Committee on May 11, 1990. Dastoor had retired from service on April 30, 1990. Therefore, the necessary sanction of the Corporation was obtained after Dastoor retired from service. This would be clearly in violation of Regulation 3(A). It is further urged that there is total application of mind on the question whether or not it would in the municipal interest to retain Dastoor in service. It is submitted that, while taking decision to extend the services of Dastoor for a period of one year, the only thing which has been taken into consideration is the services rendered by Dastoor. The Standing Committee of the Corporation did not take into consideration other relevant factors such as the service record of other officers of the Fire Brigade, including Jadeja and availability of persons belonging to Scheduled Castes/Scheduled Tribes for appointment to the post of Chief Officer, before taking decision to extend the services of Dastoor. It is, therefore, submitted that the extension of service granted to Dastoor is in violation of Regulation 3(A).

12. It is further urged on behalf of the appellant that extension of services of Dastoor is mala fide. According to the appellant, process of filling up the post of Chief Officer was not initiated till April 19, 1990, as was evident from statement made in paragraph 10 of the affidavit-in-reply dated April 19, 1990 of T.S Randhava, Deputy Municipal Commissioner (Adm.) filed on behalf of the Corporation. In paragraph 10 of this affidavit, it is stated to the effect that, till the date of the filing of the affidavit, question of extension of service was not considered by the appointing authority and, therefore, the petition was premature. It was urged that this statement clearly shows that the Corporation had, till April 19, 1990, not taken up for consideration the question of filling up the post of Chief Officer. The Corporation had also not considered the question of giving extension of service to Dastoor till April 19, 1990. It is urged that the Corporation had already decided to extend services of Dastoor and it was, therefore, that no steps were taken to fill up the post of Chief Officer by direct recruitment or promotion, as it was required to do for otherwise there was no reason not to consider the question of filling up of the post of Chief Officer till April 19, 1990. It was then urged that the decision to give extension to Dastoor is arbitrary, inasmuch as, relevant factors for giving such extension in municipal interest have not been taken into consideration. Therefore, according to the appellant, the decision of the Corporation to give extension to Dastoor suffers from both factual as well as legal mala fide.

13. It was also urged that even if it is held that the Corporation had power to retain Dastoor in service after his retirement from service, such retention would amount to reemployment or fresh appointment. It is urged that such re-employment or fresh appointment could not have been made in violation of the reservation policy. According to the appellant, even while retaining municipal officer or servant in service in accordance with Regulation 3(A), the Corporation had to bear in mind the reservation policy and no retention in service could have been granted in violation of the said policy. Therefore, whether the Extension of service of Dastoor is considered to be his retention in service or re-employment in service or fresh appointment it is in violation of the policy of reservation. According to the appellant it was incumbent upon the Corporation to appoint person or candidate belonging to the reserved category to the post of Chief Officer on Dastoor attaining the age of superannuation and retirement from service.

14. Now what is the import of the expression “retained in service”? Is this expression to be interpreted in the manner suggested by the appellant so as to exclude re-appointment or re-employment in service of municipal officer or servant, if he has already retired from service as provided in the Regulations? Does retention in service within the meaning of Regulation 3(A) postulate continuity in service without break as urged on behalf of the appellant? It may be recalled that according to the appellant, once there is a break in service between the date of actual retirement and re-appointment of re-employment of municipal officer or servant, he cannot be retained in service within the meaning of Regulation 3(A). It is submitted that the relationship of employer and employee snaps on the retirement of the employee and, thereafter, there is no question of retaining him in service. In the instant case, there is no dispute that the Corporation passed resolution approving extension of services of Dastoor on May 11, 1990 after Dastoor retired from service with effect from April 30, 1990. Therefore, if the expression “retained in service” is construed as suggested by the appellant, Dastoor could not have been retained in service under Regulation 3(A). The dictionary meaning of the word “retain” given in “Websters New Twentieth Century Dictionary”, Second Edition, is as follows:—

“retain, v.t (OFr. retenir, retainer, from L. retentus, pp. of retinere, to hold back: re, and tenere, to hold.)

1. to hold or keep in possession; to keep from departure or escape; to hold; to detain; to keep.

An executor may retain a debt due to him from the testator. - Blackstone.

2. to keep in a fixed state or condition.

3. to continue to practice, use, etc.

4. to keep in mind.

5. to hire, or arrange in advance for the services of, by paying a fee; as, retain a lawyer.

6. to withhold; to restrain; to keep back (Obs.)

Syn. - hold, keep, preserve, hire, employ, secure, engage, maintain.

retain, v.i 1. to belong; to depend, to pertain (Obs.)

2. to continue. (Obs.)”

15. It is pertinent to note that “hold, keep, preserve, hire employ, secure, engage, maintain” are synonyms of the word “retain”. It would thus appear that the words “employ” and “engage” have same meaning as the word “retain”. In other words, depending upon the context in which the word “retain” is used, that word can be substituted by the word “employ”. Among the meanings of the word “employ” given in the aforesaid dictionary are “to engage in one's service; to hire; as the President employed an envoy to negotiate a treaty”. Thus, engaging a person in service would mean employing him or retaining him.

16. Our attention was drawn to Rules 161 and 330 of the Bombay Civil Services Rules (“Rules” for short). Rule 161 provides that Government servant who has attained the age of 58 years would compulsorily retire from service and that he may be retained in service after the date of compulsory retirement only with the previous sanction of Government on public grounds, which must be recorded in writing. Rule 330, among other things, provides that the person, who is in receipt of 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. Thus, there are separate provisions for retaining a Government servant and for re-employing him in service after his retirement under the rules. So far as the Corporation is concerned, it was stated before us that there are no such separate regulations to extend services of municipal officer or servant and to re-employ him in service. The only provision under which the municipal officer or servant can be retained in service is Regulation 3(A). It was, however, urged on behalf of the appellant that there is a decision of the Corporation under which, wherever there is no specific provision in the Regulations, rules would apply. No such decision of the Corporation is placed on the basis that the only provision which provides for retention of municipal officer or servant in service is Regulation 3(A).

17. In our opinion, having regard to the meaning of the word “retain” and the context in which it is used in the Regulation 3(A), there does not seem to be any reason of justification to give restricted meaning of the expression “retained in service” as contended on behalf of the appellant. “Retain”, in our opinion, has a wider meaning and it would include “employ” and “engage”. In other words, retention in service under Regulation 3(A) would include employment or engagement in service. Employment would include re-employment and, therefore, retention would also include re-employment. Expression “retained in service” used in Regulation 3(A) means to employ or re-employ or engage an officer or servant who is or has been in service of the Corporation. And when such officer or servant is employed or re-employed or engaged in service, he could be said to have been retained in the service. A person who has never been in the service of the Corporation cannot be “retained in service”. It is in that sense that the expression “retained in service” is used. We, therefore, do not agree that the officer or servant, who has retired from service, cannot be “retained in service” under Regulation 3(A). There need not be continuity in service as urged on behalf of the appellant. Continuity in service without break is not what is contemplated by Regulation 3(A). Therefore, even if the relationship of employer and employee between the Corporation and its officer or servant has snapped, to use the argument advanced on behalf of appellant the officer or servant can be employed in service and such employment would amount to retaining him in service within the meaning of Regulation 3(A). In our opinion, therefore, mere fact that the resolution of the Corporation was passed about 11 days after Dastoor retired from service is of no consequence. The Corporation was empowered to retain Dastoor in service, after his retirement, within the meaning of Regulation 3(A).

18. Strong reliance was placed by the appellant on the decision of the Supreme Court in State of Assam v. Padmaram, A.I.R 1965 SC 473, in support of the argument that an employee cannot be retained in service after he has retired from service. Respondent in that case was employed as Superintendent in the office of the Excise Commissioner, Shillong. He was due to superannuate on attaining the age of 55 from January 1, 1961. He was, however, suspended from service on December 22, 1960 and the order suspending him from service stated to the effect that he was placed under suspension with effect from the date of the order till departmental proceedings, to be drawn up against him were finalised. Under Rule 56 of the Fundamental Rules, the respondent could have been retained in service even after he attained the age of 55. The order dated December 22, 1960, adverted to above, was treated as an order under Fundamental Rule 56 since it was made before the date of the respondent's retirement. Order dated January 6, 1961 modified the earlier order of December 22, 1960, inasmuch as it fixed a period of three months from January 1, 1961 or till the disposal of the departmental proceedings, whichever is earlier, for retaining the respondent in service. The period of three months fixed by that order expired on March 31, 1961. Thus, the effect of the order of January 6, 1961 was that the service of the respondent would come to an end on March 31, 1961 unless the departmental proceedings were disposed at a date earlier than March 31, 1961. Departmental proceedings were not concluded before March 31, 1961. The clear effect of the order of January 6, 1961, therefore, was that the service of the respondent came to an end on March 31, 1961. The Supreme Court observed that, this was so not because retirement was automatic, but because the State Government had itself fixed the date upto which the service of the respondent would be retained. The State Government made no further order before March 31, 1961, but about a month or so after passed an order on May 9, 1961 extending the service of the respondent for a further period of three months with effect from April 1, 1961. The Supreme Court held to the effect that the State Government had no jurisdiction to pass such an order on May 9, 1961. It was held that, according to the earlier order of the State Government itself, the service of the respondent had come to an end on March 31, 1961. The State Government could not, by unilateral action, create a fresh contract of service to take effect from April 1, 1961. Relying on the said decision, it was urged on behalf of the appellant that the service of Dastoor came to an end on April 30, 1990 when he attained the age of superannuation and, thereafter, he could not have been retained in service. According to the appellant, having regard to the interpretation of the word “retain” by the Supreme Court in the said decision, Dastoor could not have been “retained” in service after April 30, 1990.

19. We are not inclined to accept the above submission of the appellant. It was in the context of the facts of the case before it that the Supreme Court came to the conclusion that the respondent could not have been retained in service after the service of the respondent had come to an end on March 31, 1961. What was emphasised by the Supreme Court was that the State Government could not by unilateral action create a fresh contract of service to take effect from April 1, 1961. It was not on account of the interpretation of the word “retain” that the Supreme Court reached the above conclusion. In the instant case, it is not in dispute that Dastoor is willing to continue in service of the Corporation. It in not as a result of unilateral action on the part of the Corporation that Dastoor is retained in service. The aforesaid decision of the Supreme Court, therefore, cannot be of any assistance to the appellant.

20. In the view which we are taking, the argument that sanction of the Corporation was required to be obtained before Dastoor retired from service does not survive and it has to be rejected. The words “previous sanction of the Corporation” only mean that, before a municipal officer or servant, who has retired from service, is employed or engaged or in other words, retained in service, it is necessary to obtain sanction of the Corporation. Unless the Corporation accords sanction, municipal officer or servant cannot be employed or engaged or retained. Previous means prior to the employment or engagement or retention in service of the municipal officer or servant. In the instant case, it is not disputed that before the Corporation passed the impugned resolution, Dastoor could not have discharged duties as Chief Officer. In other words, he could not have been employed or retained in service before the Municipal Corporation sanctioned his employment or retention in service. Therefore, had there been no interim relief granted by the learned Single Judge as stated above, Dastoor could not have functioned as Chief Officer prior to May 11, 1990, the date on which the Corporation passed the resolution. That is the only way in which words “previous sanction of the Corporation” used in Regulation 3(A) can be read.

21. It is pertinent to note that so far as post of Chief Officer is concerned, it is the Corporation, who is the appointing authority. It was the Corporation, who appointed Dastoor as Chief Officer. Therefore, the question whether or not to retain Dastoor in service under Regulation 3(A) had to be decided by the Corporation itself. Unless the Corporation decided to retain Dastoor in service, he could not have been retained. The words “previous sanction used in Regulation 3(A) appear to have been used in the context of municipal officer or servant who is to be retained in service by authority other than the Corporation. If any authority other than the corporation, who is the appointing authority of the officer or servant whose service are to be retained, decides to retain in service such officer or servant, he cannot do so without the previous sanction of the Corporation. But when the appointing authority is the Corporation itself, the question of obtaining previous sanction of the Corporation would not arise. In any case, when the Corporation decides to retain an officer or servant in service, it would amount to granting or according previous sanction by the Corporation. In the light of the above discussion, the argument that it was necessary for the Corporation to grant sanction before Dastoor retired from service on April 30, 1990 must, therefore, be rejected.

22. The next question which we are required to consider is whether Dastoor could be said to have been retained in service in municipal interest. As pointed out above, proposal to retain Dastoor in service emanated from the Municipal Commissioner. It may be recalled that in his letter dated April 26, 1990, addressed to the Municipal Secretary, the Municipal Commissioner made proposal to extend the services of Dastoor for a period of one year, having regard to the outstanding services rendered by him. It is not necessary to set out in detail the history of services rendered by Dastoor stated in the letter. This proposal made by the Municipal Commissioner was considered by the Standing Committee and it decided to extend the services of Dastoor by one year with effect from May 1, 1990, in the interest of the Corporation and the city of Ahmedabad. This decision of the Corporation was approved by the Corporation by passing Resolution No. 130 on May 11, 1990.

23. The expression “municipal interest” has been defined, nor are there any guidelines as to what would be in municipal interest. It was, therefore, urged that the expression “municipal interest” should be given the same meaning which is given to the expression “public grounds” used in Rules 161 and 330 of the Rules. It is, therefore, that our attention was drawn to the decision of the Bombay High Court in Dinkar Sakharam Kulkarni v. District and Sessions Judge, Akola, reported in 1980 Mah. L.J, page 331 and the decision of a learned Single Judge of this court in Ranchhodbhai S. Dalwadi v. Gujarat Agriculture University, 1987 (1) G.L.H, page 484, wherein the expression “public grounds” came up for consideration. We find ourselves unable to agree with the submission that expression “municipal interest” used in Regulation 3(A) of the Regulations should be interpreted in the same manner in which the expression “public grounds” used in Rules 161 and 330 of the Rules, is interpreted. Provision of Regulation 3(A) are totally different from Rules 161 and 330. There is no nexus between the Regulations and the rule and, therefore, it would not be correct to interpret any expression used in the Regulations on the basis of an expression used in the Rules. Expression “municipal interest” cannot take colour from the expression “public grounds” used in the Rules 161 and 330 of the Rules. In our opinion, therefore, decisions of the Bombay High Court and this court, in the context of the Rules, cannot be of any assistance to the appellant We, therefore, do not refer to these decisions in detail.

24. Expression similar to the expression “municipal interest” came up for consideration before the Supreme Court in State Bank of Bikaner and Jaipur v. Jag Mohan Lal, 1989 Supp (1) SCC 221 : A.I.R 1989 SC 75. That was a case in which a retired bank officer claimed that he was entitled to be retained in service beyond the age of superannuation. Regulation 19 of the State Bank of Bikaner & Jaipur (Officers') Service Regulations, 1979 (“Bank Regulations” for short) provided for age of retirement. The Regulation provided that an officer shall retire from service of the bank on attaining the age of 58 years or after the completion of 30 years whatever course is first. Provided, the regulations lay down, that the competent authority may, at its discretion, extend the period of service of an officer who has attained the age of fifty-eight or has completed 30 years' services, as the case may be, should such extension be deemed desirable in the interest of the bank. Respondent before the Supreme Court was an officer of the Bank. By letter dated June 14, 1979, the bank intimated the respondent that he was granted extension of service upto September 28, 1982, i.e till he completed 58 years of age. By further letter dated July 1, 1982, the respondent was informed that he would be attaining superannuation age of 58 years on September 28, 1982, and would stand retired on that date. Accordingly, he was retired from service with effect from September 28, 1982. The respondent requested the bank to consider his case for extension of his services. The bank, however, refused to grant him extension informing him that his case did not fit in the guidelines of the bank. The respondent, therefore, moved the High Court of Rajasthan for relief under Article 226 of the Constitution. By the time the petition of the respondent came up for hearing, the respondent had attained 60 years of age. The learned Single Judge, therefore, without going into the merits of his case, dismissed the petition. The Division Bench of the High Court, however, allowed the respondent's appeal, observing as follows:—

“The order of refusing to give extension to the petitioner-appellant was because the extension was not deemed desirable in the interest of the Bank vide Annex. 3 letter dated July 29, 1982. Hence it is obvious that while considering the case of the petitioner the bank took into consideration the criteria whether his extension shall be desirable in the interest of the bank and the Bank did not apply its mind as to whether his services were found unsuitable on the ground of continued utility and health or integrity. It appears that the Bank keeping in mind the note which was added to S. 19(1) and only relying on the first proviso to Regulation 19(1) they have decided the case of petitioner for extension of service. This clearly shows that there was no serious application of mind while dealing with the case of extension of the petitioner as based on collateral grounds and is also arbitrary as the bank has applied different criteria which ought not to have been applied in the case of the petitioner. The Bank has not formed the opinion for not extending the services of the petitioner on any material or relevant consideration, but has applied a different criteria altogether and therefore, the order is based on collateral and arbitrary grounds. The extension of the petitioner could have been refused only if he was found unsuitable on the ground of continued utility or good health or integrity and not whether it was desirable in the interest of the Bank.”

25. The Division Bench further observed:—

“It is true that the right of extension of service is not a legal right, but it is a benefit. However, this benefit is not a concession, but is a privilege to which an officer is entitled after years of hard work in the Bank.”

26. The Supreme Court observed that the High Court had misconstrued the legal right claimed by the appellant. The Supreme Court made reference to its earlier decision and quoted the following observations from its decision in State of Assam v. Basanta Kumar Das, (1973) 1 SCC 461 : A.I.R 1973 SC 1252.

“A Government servant has no right to continue in service beyond the age of superannuation and if he is retained beyond that age, it is only in exercise of the discretion of the Government.

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the fact that certain persons were found fit to be continued in service does not mean that others who were not so found fit had been discriminated against. Otherwise, the whole idea of continuing only efficient people in service even after they had completed 55 years becomes only meaningless.”

27. The Supreme Court observed that there was nothing in the case of the respondent to distinguish it from the aforesaid principles and not to apply these principles. The respondent or any other officer of the Bank has, under the scheme provided in Bank Regulations, a legitimate right to remain in service till he attains the age of superannuation, but beyond that date, he has no such right unless his service is extended by the Bank. Further rights of the parties, observed the Supreme Court, are regulated by proviso to Regulation 19(1). The Supreme Court held that, looking to language of proviso and the purpose underlying, the bank, may in its discretion, extend the service of any officer “should such extension be deemed desirable in the interest of the bank”. The sole purpose of giving extension of service, is therefore, to promote the interest of the bank and not to confer any benefit on the retiring officers. If the bank considers that the service of an officer is desirable in the interest of the bank, it may allow him to continue in service beyond the age of superannuation. However, if the bank considers that the service of an officer is not required beyond the age of superannuation it is an end of the matter. The bank had set out guidelines for extension of service of its officers. According to the bank, the extension of service was considered on three parameters, namely (i) continued utility; (ii) good health; and (iii) integrity beyond reproach of the officer. The Supreme Court observed that the bank is required to consider the case of individual officer with due regard to the said guidelines. The case of the respondent before the Supreme Court was considered by the bank and it asserted that he did not fit in the said guidelines. The Supreme Court observed that the High Court did not sit in appeal against that decision. The High Court under Article 226 cannot review the decision.

28. Following the ratio of the decision of the Supreme Court in the case of State Bank of Bikaner & Jaipur (supra), it must be held that this Court cannot sit in appeal against the decision of the Corporation that extension of service of Dastoor was in the municipal interest. It is a matter of discretion with the Corporation whether or not to grant extension to its officer and it is not open to this Court to review its decision in exercise of powers under Article 226 of the Constitution. What would be the interest of the Corporation is entirely a matter of the Corporation to decide. It must be presumed that, while taking decision that the extension of services of Dastoor is in municipal interest, it must have taken into consideration all the relevant factors. It cannot be gainsaid that outstanding services rendered by Dastoor is a relevant factor, which could have gone into consideration while deciding whether or not to extend his services. Merely because the Municipal Commissioner has referred to the outstanding services rendered by Dastoor in his proposal, it does not mean that, that was the only factor taken into consideration by the Standing Committee and the Corporation while deciding to extend the services of Dastoor. There are no guidelines laid down by the Corporation as to when it would be in the municipal interest to retain municipal officer or servant in service. Had such guidelines been laid down, the controversy, which has arisen in the instant case, would not have arisen. But absence of guidelines would not necessarily lead to the conclusion that the action of the Corporation is arbitrary or illegal. Corporation is supposed to know what is in its best interest and, therefore, it has to be presumed that the Corporation had taken into consideration all the relevant factors before taking the decision to extend the services of Dastoor. It was urged that, in the case of State Bank of Bikaner & Jaipur (supra), the Supreme Court had clearly stated as to what factors were required to be considered while considering the case of individual officer for extension of service in the interest of bank. It was urged that the observations made by the Supreme Court, in that context, were to be read into proviso to Regulation 19(1) while granting or refusing to grant extension of service to an officer. We are unable to accept this submission. The Supreme Court made the above observations in the context of the guidelines formulated by the bank which were set out in its return. The Supreme Court did not read those guidelines into the proviso to Regulation 19(1). We also do not see any substance in the argument that the Supreme Court had laid down general principles governing extension of service in the interest of bank or any other institution and, therefore, these principles would govern extension of service under Regulation 3(A) of the Regulations. As already observed above, it was for the Corporation to decide whether or not it would in its interest to grant extension of service to Dastoor and, it having decided that it was in the interest of the Corporation to extend the services of Dastoor, it is not open to this Court to sit in appeal or review such decision.

29. In this connection, we may refer with advantage to decision of the Supreme Court in C. Lingam v. Government of India, (1970) 3 SCC 768 : A.I.R 1971 S.C 474. That was a case in which constitutionality and validity of the provisions of three Control Orders issued under Section 3(2)(d) of the Essential Commodities Act, 1955 were challenged. The validity of Section 3(2)(d) of the said Act was also challenged. The Control Orders, which were promulgated under Section 3(2)(d) of the Act were the following:—

(1) The Rice (Southern Zone) Movement Control Order, 1957;

(2) The Southern States (Regulation of Exports of Rice) Order, 1964, and

(3) The Andhra Pradesh Rice and Paddy (Restriction of Movement) Order, 1965.

30. Relevant provisions of Section 3 of the said Act read as follows:—

“(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices or for securing any essential commodity for the defence of India or the efficient conduct of military operation, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.

(2) Without prejudice to the generality of the powers conferred by sub-section (1) an order made thereunder may provide—

(a) ……………….

(b) ……………….

(c) ……………….

(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption, of any essential commodity.”

31. Besides challenging the constitutional validity of the Control Order and Section 3(2)(d) of the said Act, it was urged on behalf of the appellant that the requisite opinion of the Central Government within Section 3(1) of the Act was not found in any of the Orders. Rejecting this contention, the Supreme Court observed:

“We are unable to see the necessity of reciting the requisite opinion within Section 3(1) of the Act in the Control Orders. It is implicit in the recital in the Control Orders that they were being made under Section 3 of the Act that the Central Government had formed the requisite opinion within sub-section (1) of that section.”

32. If the principle laid down by the Supreme Court in the case of C. Lingam (supra) is extended to the facts of the present case, the Corporation was not even required to state in its discretion or resolution that it was in the municipal interest to extend the services of Dastoor. If the Corporation had extended the services of Dastoor without stating that it was in the municipal interest to do so, the decision could not have been held to be invalid and illegal. Once the Corporation grants extension, it is implicit in its decision that it had formed the requisite opinion that it was in the municipal interest to grant the extension. The Corporation has, however, fully approved the decision of the Standing Committee, which, in clear terms, has stated that it was in the interest of the Corporation and the city of Ahmedabad that it was necessary to extend the services of Dastoor.

33. The next question, which we are required to consider, is whether the decision to grant extension to the service of Dastoor is mala fide. There is hardly any material to show that the decision of the Corporation is mala fide. It is true that the Corporation is required to fill up the post of Chief Officer by direct recruitment though it can promote any officer employed by it to that post, if he is found fit. As observed earlier, in the past, the Corporation had made unsuccessful attempts to fill up post of Chief Officer by direct recruitment. Ordinarily the Corporation was required to take steps in time to make direct recruitment to fill up the post of Chief Officer since Dastoor was to retire from service on April 30, 1990 However, merely because no such steps were taken, it would not necessarily lead to the conclusion that decision to give extension to Dastoor is mala fide. It appears from the affidavit in reply of T.S Randhava, Deputy Municipal Commissioner, that the question of granting extension in service to Dastoor was not taken up for consideration till April 19, 1990. There is no reason to disbelieve or discard this statement. It, therefore, cannot be said that steps for direct recruitment to the post of Chief Officer were not taken to grant extension in service to Dastoor. There is also nothing to show that decision to grant extension to Dastoor is arbitrary. As already observed above, while considering the question of granting extension to Dastoor, the Corporation must be presumed to have taken into consideration all the relevant factors and the municipal interest. It is in the municipal interest that the Corporation decided to grant extension to Dastoor.

34. In the case of State Bank of Bikaner & Jaipur (supra), it was urged on behalf of the respondent that the Bank falls within the concept of “State” for the purpose of enforcement of fundamental rights. The bank, therefore, cannot extend the services of some and reject the case of others similarly situated. The respondent placed reliance on the concept of Article 14 of the Constitution. The Supreme Court observed that the argument advanced on behalf of the respondent proceeded on wrong premise. It was observed that the bank has no obligation to extend the services of all officers even if they are found suitable in every respect. The interest of the bank is the primary consideration for giving extension of service. With due regard to exigencies of service, the bank in one year may give extension to all suitable retiring officers. In another year, it may give extension to some and not to all. In a subsequent year, it may not give extension to any one of the officers. The bank may have a lot of fresh recruits in one year. The bank may not need the services of all retired persons in another year. The bank may have the lesser workload in a succeeding year. The retiring persons cannot in any year demand that “extension to all or none”. The Supreme Court observed that, if we concede that right to retiring persons, then the very purpose of giving extension in the interest of the bank would be defeated. Therefore, in the opinion of the Supreme Court, there is no scope for complaining arbitrariness in the matter of giving extension of service to retiring persons. Following the Supreme Court judgment, it must be held, in the instant case also, that there is no scope for complaining arbitrariness in the matter of giving extension of service to Dastoor.

35. That takes us to the question whether the extension of service granted to Dastoor could be said to be in violation of the reservation policy of the Corporation. Dastoor was in the employment of the Corporation and it is on his retirement that the Corporation decided to retain him in service. In other words, a person who was already employed by the Corporation is continued and retained in service. The question of making appointment in accordance with the reservation policy, if at all, would arise only in case of fresh appointment or promotion. Dastoor is not appointed for the First time as Chief Officer when he was granted extension in service. Therefore, the question of making appointment in accordance with the reservation policy or operation of roster does not arise. This question may arise when the post of Chief Officer is to be filled up by making fresh appointment or promotion. If the post of Chief Officer is to be filled up in accordance with the reservation policy, the Corporation would be under obligation to do so, but that question would arise only when the question of fresh appointment by direct recruitment or by promotion arises. It is premature to decide whether or not appointment to the post of Chief Officer would be governed by reservation policy and what method is to be adopted for filling up this post in accordance with the reservation policy. We are not inclined, at this stage, to consider whether or not the post of Chief Officer is to be filled up following the reservation policy and, if such policy is applicable to the post, in what manner the post should be filled up. If, in future, the Corporation fills up the post ignoring the reservation policy which it is required to follow, it would be open to the person concerned to challenge the appointment to that post. However, as observed above, at this stage, we do not propose to go into that question.

36. For the reasons discussed above, we broadly agree with the view taken by the learned Single Judge and see no reason to interfere with the order passed by him. In the result, this appeal fails and is dismissed.

37. At this stage, Mr. M.R Anand, learned Counsel for the appellant, prays for certificate for appeal to the Supreme Court under Article 134-A read with Article 133 of the Constitution. In our opinion, this case does not involve substantial question of law of general importance, which needs to be decided by the Supreme Court. We, therefore, reject the prayer made by Mr. Anand. Mr. M.R Anand, learned Counsel for the appellant, prays that, ad interim relief granted by this court in Civil Application No. 1288 of 1990 be continued for four weeks to enable the appellant to approach the Supreme Court by way of Special Leave Petition. This prayer is strongly opposed by the learned Counsel for the Corporation and Dastoor. It is submitted by the learned Counsel for the Corporation that the important post of Chief Officer of Fire Brigade has remained vacant on account of the ad interim relief granted by this court and it would not be in the interest of the Corporation and the city of Ahmedabad to keep this important post vacant any further. Learned Counsel for Dastoor submitted that, if the ad interim relief is vacated and he is allowed to take charge of the post of Chief Officer, the fact that he has taken charge of that post will not be pleaded as defence to the grant of interim relief by the Supreme Court. Having regard to the facts and circumstances of the case, and the statement made on behalf of Dastoor, we are not inclined to continue the ad interim relief. Prayer for continuance of ad interim relief is rejected. Ad interim relief shall stand vacated.

38. Appeal dismissed.