O.H. Mootham, J. - (1.) I agree that this appeal fails, but I think it unnecessary to express an opinion as to the binding force of the rules regulating the appointment, punishment, dismissal and discharge of Executive Officers of Municipal Boards printed at p. 446 of the Municipal Manual and I would prefer not to do so.
(2.) The respondent Board by a special resolution passed on the 4th December, 1954, appointed the appellant its Executive Officer. That appointment was under sub-Sec. (3) of Sec. 57 of the U.P. Municipalities Act, 1916, subject to the approval of the State Government. The State Government did not approve of the permanent appointment on the ground that the appellant was more than thirty-two years of age, but by a letter dated the 29th December, 1955, it informed the Board that the appointment of the appellant was approved as a temporary Executive Officer for such time as the Board is not able to get the services of a fully qualified man. The Board again advertised the post but no application from a suitable candidate being received the Board again wrote to the Government on the 13th November, 1956, recommending that the appellant's appointment to the substantive post of Executive Officer be approved. On the 21st February, 1957, the Government rejected this request and asked the Board to make a further attempt to obtain a suitable candidate. Fresh elections thereafter took place and the newly constituted Board at a meeting held on the 10th December, 1957, passed a resolution terminating the appellant's services on the ground that his appointment had not been approved by the State Government and we are informed by learned counsel that another Executive Officer was appointed with effect from the 1st March, 1958.
(3.) The appellant's appointment was an interim appointment and automatically came to an end on the appointment of his successor. The only claim which he would appear to have is in respect of his salary for the period from the 11th December 1957 to the 28th February, 1958, and that is a claim which, as my brother has pointed out, he can enforce in a civil court if so advised. This is an appeal by Jagannath Dutt Tripathi against an order of Mr. Justice Jagdish Sahai dismissing his petition under Article 226 of the Constitution directed against a resolution of the Municipal Board, Padrauna, purporting to dispense with his services as Executive Officer. In his petition Tripathi claimed that his appointment as Executive Officer of the Padrauna Municipal Board should have been confirmed by the State Government on a proper interpretation of the relevant rules published in the Municipal Manual; and, therefore, being a confirmed officer, his services could not be dispensed with without a strict compliance with the rules governing such termination of service. The facts of the case as alleged in the affidavit supporting the petition are these. On 12th April 1954, the Municipal Board, Padrauna, advertised for the post of Secretary. Jagannath Dutt Tripathi was one of the applicants. Under a rule regulating the appointment of secretaries of a Municipal Board (published in the Municipal Manual, Uttar Pradesh, Chap. X page 447) no person can be appointed as secretary unless he is less than 32 years of age, but this condition may be waived with the approval of the State Government. Though a large number of candidates applied none except Tripathi was considered suitable. The Board, therefore, passed a resolution appointing him and wrote to the State Government that the age limit might be waived in his case. For some reason which is not relevant in this appeal, Government took no decision on the Board's request for a long time. Meanwhile Tripathi who had taken charge of the office of Secretary on 7th June, 1954 continued to function. In that month the status of the Padrauna Municipal Board was raised to that of a Board of the fourth class which gave it the right to have an Executive Officer instead of a Secretary. In the exercise of this right the Board passed a special resolution appointing Tripathi as its Executive Officer. As the age limit of 32 years applied to Executive Officers also, the Board wrote to the Government for the waiving of this condition. A letter was however not sent till 29th June 1955. It may be noted at this stage that the Government had not yet taken any decision on the Board's earlier request to waive the age limit in the matter of Tripathi's previous appointment as Secretary. In fact that matter had become infructuous in view of his subsequent appointment as Executive Officer. On 29th December 1955 the State Government wrote to the Board refusing to waive the age limit for Tripathi's appointment as Executive Officer. The Board was however told that the Government "were pleased to approve the appointment of Sri Tripathi as temporary Executive Officer for such time as the Board is not able to get the services of a fully qualified hand." In pursuance of this letter the Board advertised the post of the Executive Officer again. Tripathi does not appear to have challenged either the refusal of the Government to exempt him from the age-limit or the Board's again advertising for the post. A large number of applications were received, but no candidate was considered suitable. On 13th November 1956 the Board wrote to Government recommending that Tripathi's appointment to the substantive post of Executive Officer be approved. On 21st February 1957 the Government wrote back rejecting this request and requesting the Board to make another try for the appointment of a candidate to fulfil of the requirements of the rules. On 20th March 1957 the Board again passed a resolution renewing their request to the State Government to approve Tripathi's appointment. ;