R.N. Misra, J. -
(1.) PETITIONER is a teacher in the employment of the Cuttack Municipality having joined service as an Assistant Teacher in the City High School on 13 -9 -1958. On 24 -7 -1970, he was promoted as Headmaster of the Municipal proposed High School at Mansinghpatna and came to be reverted again as an Assistant Teacher of the City High School with effect from 26 -11 -1973. A vacancy arose in the post of Headmaster of the Municipal High School and a Selection Committee was appointed under Section 75 of the Municipal Act read with Rule 426 of the Orissa Municipal Rules of 1953. At the relevant time, the Municipal Council had been superseded and the functions of the Chairman as also the Council vested in the District Magistrate of Cuttack. The Selection Committee consisted of the District Magistrate, an Additional District Magistrate, the Inspector at Schools and the Executive Officer of the Municipality. Cases of six teachers including the Petitioner's were considered in the meeting held on 18 -9 -1975 and Petitioner was selected for the post. Accordingly order of appointment was issued in his favour on 22 -9 -1975. One of the aspirants Sri S.P. Misra represented to the State Government against the selection and the State Government set aside the appointment of the Petitioner by order dated 26 -2 -1976 (Annexure -3). Petitioner moved this Court in O.J.C. No. 315 of 1976, but during the pendency of the said writ application a fresh selection was held by the Council and on 8 -6 -1976. Petitioner was again selected and was issued with an order of appointment on 17 -6 -1976. Thereupon he withdrew the writ application. The said Sri S.P. Misra again represented to the State Government against the appointment and the selection was vacated. Petitioner has filed this writ application challenging the Government Order on the basis of which the order in Annexure -1 which runs to the following effect was made:
In pursuance of Urban Development Department Letter No. 23797/UD, dated 29 -8 -1977, Sri P.C. Das, Headmaster, Municipal High School, Mansinghpatna is reverted to the post of Asst. Teacher in the scale of pay of Rs. 400/ - to 620/ - and posted as such in the City High School, Rajabagicha with effect from 8 -9 -1977 F.N. vice Sri S.P. Mishra transferred....
According to the Petitioner, the aforesaid order is without any foundation and is not sustainable in law.
(2.) THE State of Orissa has filed a counter affidavit supporting its own action while the Cut tack Municipality and the District. Magistrate being opposite parties 2 and 3 have filed a counter affidavit through the Executive Officer supporting the selection of the Petitioner. In the counter affidavit of the State under Secretary to Government in the Urban Department, it has been pleaded:
The Petitioner, however, was selected for the second time by the Selection Committee in its meeting held on 8 -6 -1976 for promotion as Headmaster of the High School. He was promoted as Headmaster of the given by the Development High School, in Municipal Order dated 17 -6 -1976. On the representation of Sri S.P. Mishra as stated above, Government again reviewed the case under Rule 426 of Orissa Municipal Rules and found that this time also the Selection Committee was not properly constituted under Section 75 of the Orissa Municipal Act and also the C.C. Rs. were not properly maintained. So on the basis of the advice of the Law Department as stated above order of Government was obtained on 22 -7 -1977, setting aside the promotion of the Petitioner and this order was communicated to the Executive Officer of Cuttack Municipality in Government Letter No. 20740 - UD, dated 23 -7 -1977 and No. 21368 UD, dated 29 -7 -1977....
(3.) ADMITTEDLY the State Government has superseded the Cuttack Municipal Council in exercise of powers under Section 402 of the Orissa Municipal Act (hereinafter referred to as the 'Act'). Sub -section (5) of Section 402 provides:
The provisions of Sub -section (5) of Section 401 shall apply so far as may be in regard to the exercise and discharge, during the period of supersession of a municipal council under Sub -section (1) or (4) or suspension thereof under the proviso to Sub -section (2) of all or any of the powers and duties of the municipal council and its Chairman.
Sub -section (5) of Section 401 provides:
During any interval between the dissolution and the reconstitution of a municipal council directed under Sub -section (1) all or any of the powers and duties of the municipal council and its Chairman may be exercised and discharged, as far as may be, and to such extent as the State Government may determine by such person or persons as the Government appoint in that behalf, and any such person who is not a District Magistrate or Sub -Divisional Officer may, if the State Government so direct, receive such payment for his services from the municipal Fund as may be determined by them.
In exercise of the aforesaid powers, the following notification was made by the State Government on 28 -5 -1975 published in the Extraordinary Issue of the Orissa Gazette of the date:
S.R.O. No. 323/75 Whereas in the notification of the Government of Orissa in the Urban Development Department No. 12570, dated the 28th May, 1975, the Council of Cuttack Municipality in the district of Cuttack has been suspended under the proviso of Sub -section (2) of Section 402 of the Orissa Municipal Act, 1950 (Orissa Act 23 of 1950);
Now, therefore, in exercise of the powers conferred under Sub -section (5) of Section 402 of the said Act, the State Government do hereby appoint the District Magistrate, Cuttack, to exercise the powers and discharge the duties of the Municipal Council and the Chairman of the said Municipality, with effect from the 29th May, 1975 until further orders.
Thus all the powers of the Council and the Chairman vested in the District Magistrate.
Section 75 of the Act provides:
Scale of establishment and appointment and dismissal of officers and servants:
Subject to the scale of establishment under Section 73, the selection committee consisting of the Chairman and a councillor of the municipal council elected for this purpose and the Executive Officer, the Engineer or the Health Officer, as the case may be shall have power to select such persons as they may think fit from time to time, such persons shall thereupon be appointed by the Chairman:
Provided further that....
Section 92 of the Act provides:
Delegation of powers: Subject to any restrictions that the municipal council may impose, the Chairman may by an order in writing delegate any of his functions to any officer or servant of the municipal councilor to any officer or servant of Government and may in like manner withdraw or modify the same.
For the purpose of the second Selection Committee held on 8.6.1976 the District Magistrate and Chairman of the Cuttack Municipality made the following delegation:
I, Shri S.R. Pal, I.A.S., District Magistrate and Chairman, Cuttack Municipality and the Council conferred on me do hereby delegate my function as Presiding Officer of the Selection Committee to be held on 8 -6 -1976 for selection of Headmaster of Municipal High School, Primary School Teachers and Watchmen for the Cuttack Municipality to Shri P.N. Kar, O.A.S. (1), Additional District Magistrate, Cuttack.
It is on the basis of such delegation that the Selection Committee was constituted consisting of Shri P.N. Kar as Chairman, Sri R.K. Mohanty, Inspector of Schools and Sri K.K. Ghosh, Executive Officer as members.;