Banerjee, J. - (1.) This is an appeal against the judgment and order dated 21st March, 1990 passed by the learned trial Judge in the Matter No. 1359 of 1989 by which the learned trial Judge allowed the writ application filed by Shri Anirudha Mukherjee one of the candidates who failed to get himself recommended for selection and recommendation made by the Municipal Service Commission for appointment to the post of Senior Market Superintendent of Calcutta Municipal Corporation was quashed. Further the appointment given by the Municipal Corporation during the pendency of the writ application in favour of the appellant was also quashed and that by the said judgment and order the learned trial Judge hell that the writ petitioner opposite party was the only eligible who should be treated to be selected by the Municipal Service Commission and that the writ petitioner opposite party No. 1 should be given appointment in the post of Senior Market Superintendent.
(2.) The fact of this is that on 10th June, 1988 Calcutta Municipal Service Commission issued an advertisement in the newspaper inviting application for appointment for one permanent post of Sr. Superintendent (Market) under the Calcutta Municipal Corporation. In the said advertisement the eligibility criteria was that : (a) the candidate must possess a degree of a recognised University or its equivalent, (b) 7 years experience in a responsible position of Revenue Collection in a Government Office, Semi Government Office or Statutory body and (c) the age should not be more than 40 years on the 1st January, 1988. It was provided in the said advertisement that the upper age limit according to the said advertisement was relaxable for 5 years for exceptionally qualified candidate According to the said advertisement the prescribed essential qualifications were minimum and mere possession of the same would not entitle the candidate to be called for interview. Pursuant to the said advertisement the writ petitioner Aniruddha Mukherjee as well as the appellant Sadhan Kumar Basu applied for appointment in the said post before the Municipal Service Commission. Initially the writ petitioner was not called for interview but ultimately, the writ petitioner was also called for interview. On the basis of the interview held by the Municipal Service Commission, the name of the appellant was recommended for appointment by Municipal Service Commission to the Calcutta Municipal Corporation. The said recommendation made by the Calcutta Municipal Service Commission was challenged by the writ petitioner opposite party by filing a writ application, on the ground that the appellant did not possess the required experience of Revenue Collection and that the appellant had crossed 40 years of age and as such he could not be selected and/or recommended by the Municipal Service Commission for appointment to the said post. The learned trial Judge on consideration of the matter held that the essential duties of a Sergeant of Municipal Market was to maintain law and order in the market and for that purpose he was provided with police powers and that as the appellant was holding the post of Sergeant he could not be said to have that requisite 7 years experience in a responsible position of Revenue Collection and in support of his findings he relied upon paragraph 28 of the Market Manual of the Corporation of Calcutta published in the year 1938 and the learned trial Judge also held that as the appellant has crossed the age of years, he was disqualified from being considered for appointment in the said post and further on consideration of the matter the learned trial Judge found that the writ petitioner who challenged the appointment of the appellant was only suitable and eligible candidate for such appointment and accordingly directed the municipal authority to appoint the writ petitioner opposite party in the said post. It is a case where the learned trial Judge made assessments of the merits of the appellant as well as the writ petitioner opposite party and came to the conclusion that the appellant could not be selected and/or recommended by the Municipal Service Commission and directed the Municipal Service Commission should recommend only the name of the writ petitioner and directed the Calcutta Municipal Corporation to appoint the writ petitioner opposite party in the same post after quashing the recommendation made by the Municipal Service Commission for appointment in the post of Sr. Superintendent (Market). It is pertinent to mention that against the said Judgment and order passed by the learned trial Judge neither the Municipal Corporation nor the Municipal Service Commission preferred any appeal. It may also be mentioned that the writ petitioner opposite party also applied for the post of Deputy Licensing Officer and the Municipal Service Commissioner selected the writ petitioner opposite party for such appointment in the post of Licensing Officer in December 1990, and thereafter, the writ petitioner opposite party left the post of Sr. Superintendent (Market) and joined the post of Licensing Officer in December 1990. After the writ petitioner on being appointed to the post of Licensing Officer and joined the said post in December 1990 the appellant made an application before the Division Bench of this Court for a direction upon the Calcutta Municipal Corporation to appoint the appellant in the post of Sr. Superintendent (Market) and that the Division Bench of this High Court passed an order on 18th August, 1992 by way of interim order directing the Municipal Corporation to appoint the appellant on ad hoc basis in the post of Sr. Superintendent (Market). "An application was filed by C.M.C. to recall that order which was also heard along with the appeal. In the said application it was stated that the appellant could only be entitled to hold the said post provided the appeal is allowed and the order of the learned trial Judge is set aside." The case of the appellant is that the Municipal Service Commission being fully satisfied with the eligibility criteria forwarded the name of the appellant to the Municipal Corporation. It was submitted that such a recommendation, as made by Municipal Service Commission to the Municipal Corporation cannot be challenged under Article 226 of the Constitution since recommendation was made to Municipal Corporation and not to the court and that on the basis of the recommendation Municipal Corporation may or may not accept the recommendation and make an appointment. Recommendation and the appointment are two different things and that writ of Mandamus is not available for the purpose of quashing a recommendation as recommendation is not binding upon the Municipal authorities. Further it was submitted that the eligibility criteria which have been laid down by they authorities concerned was fully satisfied by the appellant inasmuch as the Municipal Service Commission was satisfied with the eligibility criteria and at the interview relaxed the age of the appellant on being satisfied with that the appellant was a fit candidate whose age should be relaxed and, thereafter, selected him and made the recommendation to Municipal Corporation and further it was pointed out that even if the appellant did not satisfy the required minimum experience at that time the appellant's service was entitled to be automatically regularised on acquiring the required experience while holding that said post. In this connection, it was stated that it may be mentioned that the appellant possessed the requisite experience for being selected and appointed to the post of Sr. Superintendent (Market) having been specifically admitted and ascertained by the Calcutta Municipal Corporation and the Municipal Service Commission having satisfied with regard to the experience when selected the appellant such selection and recommendation could not be challenged on the grounds that in the Market Manual which was made in the year 1938 where there was no mention that the duties and responsibilities of a sergeant relate to Revenue Collection. In view of the let that in the preface of the said Manual it was stated that "according to the system prevalent there and the provisions herein as regards duties of an individual officers has to be adjusted according to the staff provided in respective Markets." It was further submitted that the said Manual was not statutory and that the same did not reflect the duties and responsibility the said post in recent times. In this connection it may be mentioned that the Calcutta Municipal Corporation, in the affidavit in opposition filed before the learned trial Judge affirmed by Sri Pranab Kumar Maity, Deputy Market Commissioner (N) of the Calcutta Municipal Corporation have clearly stated : "It appears from the records that the respondent No. 8 was appointed of Sergeant in the Market Department has to play a vital role for the matter of collection of Revenue particularly when it is not paid by the stall-holders and others who are liable to pay such revenue to the Corporation. The duties and functions of the Sergeant have been mentioned in the Market Manual. It is needless, to mention that the market department itself is a revenue earning department and everyone who is working in the market department is directly or indirectly involved in revenue collection. It appears from the records that on or about 4th March, 1982 the respondent No. 8 took over the charge of initially Market from Shri Animesh Ranjan Ghosh under an order of the respondent No. 2 and has acted therein in the capacity till 16th of March, 1964. The petitioner has been working as Sergeant of Gurudas Market on or from 19th June, 1985 and he took over the charge of Superintendent of Ultadanga Municipal Market on and from 16th March, 1988 and as per the authority concerned. Therefore, the respondent No. 8 has been discharging his functions and duties of Superintendent of both the markets viz. Gurudas Market and Ultadanga Municipal Market. I do not admit that the respondent No. 8 has never gained experience in revenue collection in a full time employment or that the said officiation of the respondent No. 8 in the post of Superintendent of Gurudas Market is illegal as vaguely alleged or at all."
(3.) It was further submitted in the said affidavit that the Municipal Commission was the appropriate authority to say whether the appellant who was the respondent No. 8 in the writ application had fulfilled the requisite qualification to appear at the interview before the said selection committee and that it was stated that the Municipal Service Commission after scrutinising the papers relating to qualification, experience of the appellant was duty satisfied in this regard and ultimately, the appellant was recommended by the Municipal Service Commission for appointment to the post was made. It was further stated that the authorities concerned have acted in the matter in accordance with law not according to their whims and sweet will as alleged by the writ petitioner opposite parties. It was further stated in the said affidavit that the concerned authorities of Corporation used to give appointment to the candidate who is selected and recommended by the Municipal Service Commission and as such he cannot have any claim for the said post. It was further stated in the said affidavit filed by the Municipal Corporation that the writ petitioner opposite party could not be stated to have experience in a responsible position of revenue collection inasmuch as the writ petitioner opposite party while working as Checking Inspector cannot be said to be holding a responsible position and his experience to revenue collection as Checking Inspector cannot be considered for appointment to the post of Senior Superintendent (Market) and that in fact experience in collection in a responsible position means that the candidate concerned must have experience revenue administration and in framing police with regard to revenue collection. The duties of the Checking Inspector were to check the collection of Sircar which could not be considered as experience in revenue collection in a responsible position.;