JUDGMENT : S.G. Shah, J. 1. Heard learned advocate Mr. D.G. Chauhan for the petitioner, learned AGP Ms. Amita Shah for respondent No. 1, learned advocate Mr. Mehul Sharad Shah for respondent No. 2 and learned advocate Mr. Murli N. Devnani for respondent No. 3. 2. Respondent No. 1 is State through Director of Municipalities, respondent No. 2 is concerned Nagarpalika being Nadiad Nagarpalika, whereas respondent No. 3 is though Councilor at the relevant time of the same Nagarpalika, practically, she is third party to the dispute between the petitioner on the one hand and respondent No. 1 on the other hand with reference to the selection of the petitioner as Fire Superintendent and appointing him as such by way of promotion, which is under challenge. 3. It is undisputed fact that petitioner has been appointed as Daily Wager on 1.5.1995, but thereafter, he was appointed as a Peon in the pay-scale of Rs. 750 - Rs. 940/- by order dated 23.12.1996, but initially on probation of one year. Copy of such appointment letter is annexed at Annexure-A. It is also undisputed fact that by resolution dated 17.9.2004, respondent No. 2 - Nagarpalika has decided to send the petitioner for undergoing the training of Fire Sub Officer Course in National Fire Service College, Government of India, Nagpur. It is also undisputed fact that there was no dispute or grievance so far as sending the petitioner for such training is concerned because of the fact that, practically, though petitioner was appointed as Peon in the year 1996, he was working as Fireman from the year 2004 till the year 2009. When he was selected as Fire Superintendent, the petitioner had completed the training as aforesaid in the month of June, 2006. Since there was vacant post of Fire Superintendent, the Fire Brigade Committee of the respondent No. 2 recommended the General Board of the respondent No. 2 - Nagarpalika to fill-up the post of Fire Superintendent. Pursuant to such recommendation dated 25.7.2008, the General Board of the Nagarpalika accepted the recommendation and decided to fill-up the post of Fire Superintendent. The resolution dated 16.9.2004 regarding training of the petitioner is at Annexure-B. It is also undisputed fact that such recommendation has been approved by the Government by its order dated 22.12.2004. Pursuant to such recommendation dated 25.7.2008, the General Board of the Nagarpalika accepted the recommendation and decided to fill-up the post of Fire Superintendent. The resolution dated 16.9.2004 regarding training of the petitioner is at Annexure-B. It is also undisputed fact that such recommendation has been approved by the Government by its order dated 22.12.2004. The petitioner has also produced certificate of completion of his training at Annexure-C; whereas recommendation dated 25.7.2008 to fill-up the post is at Annexure-D. Surprisingly, when such recommendation was approved in general meeting dated 31.7.2008, the perusal of resolution of such meeting at Annexure-E shows a surprising fact inasmuch as though out of 42 total Councilors, when 12 Councilors were absent on account of their leave, which was approved by the President or the General Board itself and thereby, though there were 30 Councilors present in the meeting, when the Committee has simply recommended to fill-up the post of Fire Superintendent, which otherwise is very necessary post for a city like Nadiad, out of 30 Councilors, 9 Councilors have objected to fill-up the post. It cannot be ignored that though there is no clarity that which 9 Councilors have objected to fill-up the post, the fact remains that the present respondent No. 3, the Councilor who is challenging the promotion of the petitioner, was present in the meeting. Therefore, unless she discloses on oath that whether she has voted in favour of the decision or against it, there is reason to believe that she has not objected such decision when she has not challenged such decision in appropriate manner, but one thing is certain that here is a local body of which 9 Councilors are objecting to appoint Fire Superintendent though that post was vacant and though there is no financial difficulty of the respondent No. 2 and though Government is going to approve such appointment. This goes to show the root of such dispute where probably unwritten principle applies regarding liking and disliking any of such candidate by some people. It is also undisputed fact that pursuant to such recommendation and decision by the general body to fill-up the post of Fire Superintendent when respondent No. 2 has sought approval from the Government, the District Collector has by its order dated 16.9.2008; copy of which is at Annexure-F; approved the filling-up of post pursuant to letter dated 2.9.2008 of respondent No. 2. 4. 4. At present, by impugned order, when respondent No. 1 has came forward with a submission that appointment of petitioner is not in accordance with such approval, the scrutiny and interpretation of such approval is the basic requirement in this petition. 5. Therefore, bare perusal of letter dated 16.9.2008 and Government Resolution dated 29.6.2009 regarding sanction of the post are material. The bare perusal of these letters specifically confirm that there is no restriction upon respondent No. 2 from filling the post even by promotion because there is categorical disclosure in such documents that respondent No. 2 can fill-up the post by appointment/promotion. However, when respondent No. 1 before us is referring or assigning the reason regarding non-compliance of condition of such order, the scrutiny of condition of such approval order dated 29.6.2009 is material. There are in all nine conditions imposed while allowing the respondent No. 2 to fill-up the post of Fire Superintendent either by appointment or by promotion wherein it is stated that it should be in accordance with provisions of Gujarat Municipalities Act, 1963, but so far as conditions are concerned, none of the conditions is against the present petitioner inasmuch as there is no question of roster, the financial condition of the respondent No. 2 - Nagarpalika is proper for such appointment and there are general conditions that respondent No. 2 has to follow certain resolutions, decisions and instructions. However, none of the instructions is confirming that petitioner is not entitled to be promoted as such except for the reasons assigned by respondents No. 1 and 3 that there is no evidence that petitioner was made permanent and therefore, he could not be promoted. However, in general, there is no breach of any of the conditions of such approval order dated 29.6.2009 and therefore, there is no reason to disturb the exercise carried out by respondent No. 2 in promoting the petitioner as Fire Superintendent, which is done after following the rules and regulations regarding appointment by way of promotion. 6. However, in general, there is no breach of any of the conditions of such approval order dated 29.6.2009 and therefore, there is no reason to disturb the exercise carried out by respondent No. 2 in promoting the petitioner as Fire Superintendent, which is done after following the rules and regulations regarding appointment by way of promotion. 6. When petitioner has categorically pointed out that respondent No. 1 has no authority to pass the impugned order, reference of disclosure by respondent No. 1 in such approval order dated 29.6.2009 is material when respondent No. 1 has categorically admitted that the appointing authority of persons like petitioner is Municipality and therefore, it becomes clear that respondent No. 1 is not the appointing authority and to that extent, the impugned order to quash and set-aside the promotion of the petitioner is not proper in accordance with provisions of the Gujarat Municipalities Act. 7. It cannot be ignored that before promoting the petitioner as such, respondent No. 2 - Nagarpalika issued Circular dated 6.7.2009, copy of which is produced at Annexure-H, calling the applications from all concerned and circulated such circular in all the departments of the Municipality. It is also undisputed fact that as many as six persons have applied for the post. There names are disclosed by respondent No. 2 in paragraph 17 of their affidavit-in-reply in Special Civil Application No. 8234 of 2010, copy of which is produced at Annexure-L by the petitioner with this petition. Such fact is reiterated by respondent No. 2 in paragraph 11 in their affidavit-in-reply in this petition. 8. It is also undisputed fact that pursuant to such exercise, petitioner was called by the Selection Committee on 21.7.2009 and thereby, the petitioner appeared before the Selection Committee on 23.7.2009 and he was selected as Fire Superintendent by the Selection Committee. The decision of Selection Committee has been accepted by the General Body of the respondent No. 2 on 30.7.2009 and therefore, by order dated 6.8.2009, the petitioner was promoted as Fire Superintendent in the pay-scale of Rs. 4,500 - Rs. 7,000/-. 9. However, it seems that after such appointment, only on 7.7.2010 i.e. almost after a year, respondent No. 3 herein has preferred one Special Civil Application No. 8234 of 2010 challenging the appointment of the petitioner as Fire Superintendent by way of promotion. 4,500 - Rs. 7,000/-. 9. However, it seems that after such appointment, only on 7.7.2010 i.e. almost after a year, respondent No. 3 herein has preferred one Special Civil Application No. 8234 of 2010 challenging the appointment of the petitioner as Fire Superintendent by way of promotion. In such Special Civil Application, the Co-ordinate Bench has on 21.9.2010 passed the following order:- "This petition may be treated as representation to be made before the respondent No. 2 - Director of Municipalities, who will examine the matter and pass appropriate order after hearing all the affected parties including the complainant, appointed person and the concerned Municipality. The said representation will be decided within a period of four months from today, if petitioner will approach the authority within fifteen days from today. Petition stands disposed of accordingly. Notice is discharged." 10. It seems that pursuant to such direction, present respondent No. 3 has filed representation before the respondent No. 1 and pursuant to such representation, the respondent No. 1 has passed the impugned order on 15.2.2011. Before the respondent No. 1, respondent No. 2 has filed their submissions by their letter dated 10.1.2011, copy of which is at Annexure-N; whereas, the petitioner has submitted his case by letter dated 27.12.2010, copy of which is at Annexure-O. 11. However, at present, we are concerned with the impugned order dated 15.2.2011 by respondent No. 1, perusal of which makes it clear that the respondent No. 1 has reproduced the submissions of all the parties i.e. respondents No. 2, 3 and the petitioner in 11 pages and thereafter, for coming to the conclusion that promotion of the petitioner is not proper, the respondent No. 1 has assigned mainly two reasons with nine grounds. The reasons assigned by the respondent No. 1 are as under:- a. The petitioner is not a permanent employee of respondent No. 2; b. The promotion is not as per the Rules. For such determination, the respondent No. 1 has observed that there is no documentary evidence available on record to prove and confirm that when petitioner was made permanent on the post of Peon. It is also averred that the promotion is because of the relation of the petitioner with the President of respondent No. 2 - Nagarpalika. It is also averred that there was no sanction to fill-up the post by promotion. It is also averred that the promotion is because of the relation of the petitioner with the President of respondent No. 2 - Nagarpalika. It is also averred that there was no sanction to fill-up the post by promotion. It is also stated that respondent No. 1 - Municipality has not disclosed before respondent No. 2 that why other six persons were not selected though it was never the issue before the respondent No. 1. Though one of the candidate Bharatkumar V. Barot has never complained or agitated the issue, the respondent No. 1 has also stated in the impugned order that the ability of Bharatkumar has not been taken care of. It is really surprising to note that when Bharatkumar has never complained or agitated his non-selection, then how and why respondent No. 1 so also respondent No. 3 is supporting his case. Though petitioner was sent for training, the respondent No. 1 has observed that permanent employees were not sent for training and therefore, promotion of petitioner is not proper. Lastly, it is stated that the promotion of the petitioner is against the conditions of order dated 29.6.2009. 12. Therefore, the scrutiny of record confirms that practically, none of the grounds assigned by the respondent No. 1 is enough and sufficient to quash and set-aside the order of promotion of the petitioner because except for a documentary evidence on record to confirm that petitioner was permanent employee of respondent No. 2, the General Board of respondent No. 2 has by a majority decision decided to extend the training facility to the petitioner and to fill-up the post, and when respondent No. 1 has approved the post by a specific disclosure that it can be filled-up by appointment/promotion, there is no reason for respondent No. 1 to disturb such promotion by impugned order. Similarly, so far as non-following rules of recruitment is concerned, as disclosed herein above, practically, respondent No. 2 has followed the rules and therefore, as many as six persons have applied for the post and thereafter, petitioner was selected after following the due process of recruitment and more particularly, when none of the other candidates who could not succeed in such selection process have never complained or challenged or agitated the recruitment and selection process in any manner whatsoever, practically, respondent No. 2 has no locus standi to challenge such promotion of the petitioner, which was otherwise in accordance with law and rules. 13. Therefore, when the impugned order could not show that which condition is not followed, the bare wording in such impugned order that selection of petitioner is because of his relative in the Board or that he was not permanent employee of the Board, has no substance when it is not proved on record that petitioner was either on daily wages or not in service of respondent No. 2. So far as allegations regarding no evidence to prove that petitioner was in permanent service are concerned, it is quite clear and obvious that the probation period of petitioner was only one year, then, on one hand when there is no order to make him permanent and on the other hand, there is no evidence either with the respondent No. 1 or respondent No. 3 that probation of petitioner was extended in any manner whatsoever. As against that, the record shows that he has been treated as permanent employee when he was sent for training for six months and more particularly, when he was allowed to work as Fireman for more than five years. Therefore, it would not be appropriate for any authority to take the serious work from the person like petitioner and then to refuse him appropriate promotion only because of lacuna if at all it is there on the part of the employer, when there was no fault on the part of employee like the petitioner in not getting any documentary evidence to prove that he is a permanent employee. The record shows that by all means the petitioner was treated as permanent employee for a long time and serious work of Fireman was taken from him and he was sent for training as if he is a permanent employee and was allowed to appear in selection process as such and only when he was selected, a third party, who has otherwise no locus standi; probably as submitted and argued before this Court; only because of political vengeance challenging his promotion that too after a year. 14. Therefore, when respondent No. 1 has otherwise no authority as per law to pass such an order of quashing the promotion granted by respondent No. 2, the appointing authority, the impugned order cannot sustain. As already stated, even at the cost of repetition, it is to be reconfirmed here that except the ground of no evidence of being permanent employee of respondent No. 2, respondents No. 1 and 3 could not point out that which rules, regulations and procedure is not properly followed by respondent No. 2. The record categorically proves that respondent No. 2 has followed the rules and regulations while appointing the petitioner as Fire Superintendent by promoting him on such post when he was in service as Fireman for last five years. 15. Though factual details are quite clear and in favour of the petitioner, learned advocate Mr. Chauhan has rightly pointed out that even law and rules are in his favour and learned advocate Mr. Chauhan has referred and read out the provisions of Section 49, 50, 260 and 271 of the Gujarat Municipalities Act, 1963, which makes it clear that the appointing authority is Municipality and that the power of respondent No. 1 is restricted to prevent extravagance in the employment of establishment when it is provided in Section 260 that if in the opinion of the Director, the number of persons, who are employed by a municipality as officers or servants, or whom a municipality proposes to employ or the remuneration assigned by the municipality to those persons or to any particular person is excessive, the municipality shall, on the requirement reduce the number of the said persons or the remuneration of the said person or persons provided that the municipality may appeal against any such requirement to the State Government whose decision shall be conclusive. Therefore, the cogent or combined reading of all above sections make it clear that the only power vested in respondent No. 1 being Director of the Municipalities is limited to the extent of reducing the number of posts or the amount of remuneration to be paid by respondent No. 2 and once post is approved by respondent No. 1, then, the selecting and appointing authority is respondent No. 2 alone and to that extent, the impugned order is absolutely beyond the jurisdiction of respondent No. 1 and therefore, at any cost it could not sustain as such. Whereas, the discussion herein above makes it clear that even the factual details and merits of the case with reference to the allegations made by respondent No. 3 before respondent No. 1 and as per the determination of respondent No. 1, practically, there is nothing against the petitioner and also respondent No. 2 so as to disturb the promotion of the petitioner by respondent No. 2 and therefore also, the impugned order cannot sustain and hence, it needs to be quashed and set-aside. 16. Learned advocate Mr. Chauhan for the petitioner is relying upon the decision in the case of B. Srinivasa Reddy Vs. Karnataka Urban Water Supply & Drainage Board Employees' Association & Ors. reported in (2006) 11 SCC 731 . Paragraph 51 of the judgment reads as under:- "It is settled law by a catena of decisions that Court cannot sit in judgment over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses prescribed qualification and is otherwise eligible for appointment. This Court in R.K. Jain vs. Union of India, (1993) 4 SCC 119 was pleased to hold that the evaluation of the comparative merits of the candidates would not be gone into a public interest litigation and only in a proceeding initiated by an aggrieved person, it may be open to be considered. It was also held that in service jurisprudence it is settled law that it is for the aggrieved person that is the non-appointee to assail the legality or correctness of the action and that third party has no locus standi to canvass the legality or correctness of the action. It was also held that in service jurisprudence it is settled law that it is for the aggrieved person that is the non-appointee to assail the legality or correctness of the action and that third party has no locus standi to canvass the legality or correctness of the action. Further, it was declared that only public law declaration would be made at the behest of public spirited person coming before the Court as a petitioner having regard to the fact that the neither of respondent Nos. 1 and 2 were or could have been candidates for the post of Managing Director of the Board and the High Court could not have gone beyond the limits of Quo Warranto so very well delineated by a catena of decisions of this Court and applied the test which could not have been applied even in a certiorari proceedings brought before the Court by an aggrieved party who was a candidate for the post." The above observation makes it clear that the respondent No. 3 has no locus standi in challenging the promotion of the petitioner since she is not the aggrieved person. However, if she is aggrieved by the decision of the General Board of the respondent No. 2 in promoting the petitioner, she may have a remedy under the Gujarat Municipalities Act of filing an appeal before the State Government and to that extent, with due respect, the direction in previous petition, is misconceived and misinterpreted by the respondents No. 1 and 3. Therefore, now, it is certain and clear that when respondent No. 3 has no locus standi, it would not be appropriate for respondent No. 1 to pass the impugned order so as to disturb the promotion of the petitioner, which is otherwise in accordance with law and rules. 17. The petitioner is also relying upon the decision in the case of Union of India & Ors. Vs. Rubi Mazumdar reported in (2008) 9 SCC 242 and specifically observations made in paragraph 37 of such judgment, wherein the settled legal position is reiterated that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. The same position is applicable to the respondent No. 1 when they are deciding any such representation. Thereby, when selection process is completed following statutory rules by the employer, the respondent No. 1 being sanctioning authority, only has no rule to be played in such selection process, more particularly in absence of any cogent evidence regarding any illegality, arbitrariness or selectiveness. None of the contesting candidates have ever complained about it. 18. Therefore, considering the overall facts and circumstances emerging from record, even if we peruse the affidavit in reply by respondent No. 3 and respondent No. 1, it cannot be said that promotion of the petitioner was illegal in any manner whatsoever and thereby, the impugned order deserves to be quashed and set-aside. The perusal of affidavit-in-reply by respondent No. 3 on the contrary now makes it clear that when respondent No. 1 has decided to discontinue the service of the petitioner and similarly situated other 30 employees, all of them have initiated legal proceedings wherein they succeeded and thereby, respondent No. 1 had to reinstate them. It is undisputed fact that such litigation had been dragged upto this Court, but ultimately, the petitioner and other employees had been reinstated. Thereby, now, it cannot be said that there is no formal order of confirming them on duty on permanent post and therefore, they all are serving on probation only for more than a decade. Therefore, if respondent No. 3 is referring the pleadings by respondent No. 2 in such previous round of litigation, then, at present these pleadings are not material because those pleadings have been considered by the competent authorities in favour of the petitioner and hence, now, those grounds are not material to substantiate the impugned order. Therefore, if respondent No. 3 is referring the pleadings by respondent No. 2 in such previous round of litigation, then, at present these pleadings are not material because those pleadings have been considered by the competent authorities in favour of the petitioner and hence, now, those grounds are not material to substantiate the impugned order. Even at the cost of repetition, it is to be recollected here that bare pleading regarding relation between the office bearer of respondent No. 2 and the petitioner are not enough inasmuch as the record shows that as and when the decision regarding petitioner is taken, his relatives have remained away from the official proceedings, including concerned employee. As against that, it cannot be ignored that some of the Councilors have even objected to fill-up the post of Fire Superintendent though there is vacancy. This goes to show that they are trying to select suitable time for appointing their own person and therefore, objected to fill-up the post of Fire Superintendent, which was vacant for more than year. Therefore, neither the documents attached by respondent No. 3 nor her pleadings are sufficient to uphold the impugned order. 19. Whereas, practically, respondent No. 1 has failed to file any affidavit-in-reply and respondent No. 2 has filed affidavit-in-reply, but supported their own action of promoting the petitioner and therefore, when petition is otherwise allowed, the minute details of such affidavit are not much material. 20. In view of above facts and circumstances, the petition is allowed as prayed for. Thereby, the impugned order dated 15.02.2011 by respondent No. 1 disturbing the order of promotion of the petitioner is hereby quashed and set-aside as prayed for. 20. In view of above facts and circumstances, the petition is allowed as prayed for. Thereby, the impugned order dated 15.02.2011 by respondent No. 1 disturbing the order of promotion of the petitioner is hereby quashed and set-aside as prayed for. Thereby, now, petitioner is to be treated as promoted on the post of Fire Superintendent from the relevant date of promotion i.e. 6.8.2009 for all purpose except backwages for the period for which he was not allowed to work as Fire Superintendent and was not paid any salary as Fire Superintendent, considering the fact that while admitting the petition on 16.9.2011, the Co-ordinate Bench has refused the interim relief to allow the petitioner on the post of Fire Superintendent and therefore for the period between 16.9.2011 till date, when he has not worked as Fire Superintendent, but he was working in same condition before he was promoted as such, it would be inappropriate to allow him financial benefit from the local authority like Nagarpalika, which is otherwise facing financial difficulties. 21. Therefore, the petition is allowed. Thereby, the impugned order dated 15.2.2011 is quashed and set-aside, which would result into promoting the petitioner on the post of Fire Superintendent with a direction that now respondent shall consider his promotion from 6.8.2009 and shall fix his salary as if he was promoted from 6.8.2009, but without any backwages for the intermediate period. The respondent is directed to permit the petitioner to join on the post of Computer pursuant to order of appointment dated 15.2.2011 and as he has not worked for the intervening period, he will be entitled for notional fixation of pay and not the actual salary for the intervening period for which he has not discharged his duties. Necessary compliance be made by the respondent within four weeks. 22. On completion of dictation of above judgment, learned advocate Mr. Murli Devnani for respondent No. 3 has prayed to stay the operation of this judgment for four weeks' so as to enable his client to challenge the same. However, considering the facts and circumstances emerging from record. I do not see any reason to stay the operation of this judgment and therefore, the request is rejected. 23. Rule is made absolute. Direct service is permitted.