R.B.Misra - (1.) -Heard Sri Somesh Khare, learned counsel for the peti-tioner as well as Sri Manoj Misra learned counsel for the Nagar Panchayat Town Area and Standing Counsel for the State. Initially the order dated 10.9.1998 (Annexure-3 to the writ petition) whereby the initial appointment of the petitioner was made is under challenge and the petitioner subsequently challenged the order dated 31.1.1999, passed by District Magistrate.
(2.) AS claimed one Smt. Munni Devi, the Chairman of Nagar Panchayat, Barkhera, district Pilibhit, appointed the petitioner on 7.5.1998 as a clerk in Nagar Panchayat and consequent upon such appointment the petitioner joined the post. According to the petitioner the appointment of the petitioner was made in exercise of power under Section 74 of U.P. Municipalities Act, 1916 (in short hereinafter called the 'Act') after passing a resolution dated 18.12.1995 of Town Area, Barkhera, district Pilibhit, when the irregularities in making the appointment of the petitioner was brought to the notice of District Magistrate, he issued a letter on 10.9.1998 (Annexure-3) to the Chairman/ Adhayaksh, Nagar Panchayat, Barkhera, District Pilibhit, to cancel the said appointment. The petitioner had challenged the order dated 10.9.1998 (Annexure-3) on the ground that since the appointment of the petitioner was made valid by the Chairman against the substantive vacancy after passing of the resolution of Nagar Panchayat, therefore, the District Magistrate cannot cancel the appointment, as the power of District Magistrate under Section 34 (1A) of 'Act' is restricted, and further before passing the petitioner order dated 10.9.1998 neither any notice was issued nor petitioner was afforded opportunity of hearing. The counter-affidavit was filed. As contended by the respondent that on 26.6.1992 (Annexure-C.A. 1) a circular was issued, according to which the vacancies available after the retirement or on the death of regular employee. The same could be fulfilled from the senior most daily wagers working on 11.10.1989, who had completed three years of service and had also worked 240 days in each calendar year with an observance of reservation policy and in case non-availability of daily wagers the recruitment to the said vacant posts are to be made from the open market and deriving the names from the Employment Exchange and such selection are necessary to be made under the supervision of District Magistrate. It was asserted on behalf of respondent No. 1 that neither any post was available nor any post was created by the State Government by notification. No intimation was also sent to Employment Exchange for the recruitment of the post of clerk in the Nagar Panchayat. It appears that the said letter dated 7.5.1998 was a forged appointment order made under the sig-nature of the then Chairman Smt. Munni Devi without notifying the vacancies and without adopting any selection process. A letter dated 15.5.1998 (Annexure-C.A. 3) was sent to the State Government for approval and when the State Government came to know the said appointment dated 7.5.1998, it had directed the District Magistrate, Pilibhit, to cancel such appointment by its letter enclosed as (Annexure-CA. 4). On the basis of said letter dated 3.9.1998 the impugned order dated 10.9.1998 was passed. While hearing the present writ peti-tion, on 17.11.1998 an interim order was passed whereby the operation of the order dated 10.9.1998 was stayed and the District Magistrate directed to pass a fresh order after affording an opportunity of hearing to the petitioner. In pursuance thereto the District Magistrate asked for a report from the then Chairman of Smt. Munni Devi who vide her letter dated 1.12.1998 informed the District Magistrate that the said appointment letter was never issued by her, however, the District Magistrate has afforded opportunity of hearing to the petitioner and passed an order on 31.1.1999 enclosed as (C.A.-6). In the order dated 31.1.1999, the District Magistrate has mentioned that the petitioner had not submitted any rules, regulations or any genuine documents or certificate in support of his appointment, therefore, the provisions of 'Act' and general norms of appointment himself and Government order No. 5339/9-1-92-52/92 dated 26.6.1992 available and enclosed as (Annexure-C.A. 1) to the counter-affidavit indicating the appointment from of the daily wager were analysed by himself. The District Magistrate has found that no post in existence. In these circumstances after affording an opportunity of hearing to the petitioner the appointment of the pe-titioner was cancelled. The Executive Officer also in his letter dated 3.5.1999, has expressed that the said appointment order of petitioner in question was not in his knowledge. It is pertinent to note that the order dated 31.1.1999, passed by the District Magistrate in compliance to the interim order dated 17.11.1998 of this Court has not been challenged, however, during the course of argument by a Civil Misc. Stay Application No. 9805 of 1999, dated 9.2.1999 the order dated 31.1.1999 has now been challenged by saying that the District Magistrate had no jurisdiction or the authority to terminate the services of the petitioner. According to the petitioner the District Magistrate can recommend to the Chairman, who is the appointing authority to terminate the service of the petitioner but he himself cannot directly pass the order of termination. Section 34 (1A) of the 'Act', provides as below : "The District Magistrate may, within the limits of his district, by order in writing, prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a Municipality or a Committee of a Municipality or a Joint Committee or any officer or servant of a Municipality or of a Joint Committee if in his opinion such resolution or order is of a nature to cause or tend to cause danger to human life, health or safety, or a riot or affray, and may prohibit the doing or continuance by any person of any act, in pursuance of or under cover of such resolution or order." Sections 70 and 71 of 'Act' reads as below : "70. Temporary servants required for emergency.-The power to appoint and fix the salaries of temporary servants in cases of emergency shall vest in the (President) subject to the following conditions, namely : (a) the President, in exercise of such powers, shall not act in contravention of : (i) any general or special directions as the State Government may from time to time issue ; (ii) an order of the (Municipality) prohibiting the employment of temporary servants for any particular work ; and (b) each appointment under this section by the (President) shall be reported at the next meeting of the (Municipality) following the appointment." "71. Power of (Municipality) to determine permanent staff.-Except as provided by Sections 57, 66, 68 and 70, (and subject to any general or special directions as the State Government may from time to time issue) a (Municipality) may, by (special) resolution, determine what servants are required for the discharge of the duties of the (Municipality) and (their qualifications and conditions of service)."
(3.) ACCORDING to the petitioner the District Magistrate has limited jurisdiction as provided under Section 34 (1A) of 'Act' and has no power to terminate the services of the petitioner and Section 70 deals with the appointment of temporary servants and in the facts and circumstances the termination order dated 10.9.1998 and subsequently order dated 31.1.1999 could not be passed by the District Magistrate. Whereas, on the other hand learned counsel for the respondent has submitted that as per Government order dated 26.6.1992, without publishing advertisement and without calling the names from the employment exchange the appointment of the petitioner if made could not be recognised as a valid appointment, when the author Smt. Munni Devi the then Chairman herself had indicated that she has not made any appointment. The petitioner had also never challenged the order dated 31.1.1999, passed by the District Magistrate in specific compliance to the interim order dated 17.11.1998 of this Court, moreso, the petitioner was heard and provided sufficient opportunity of hearing by the District Magistrate before passing the order dated 31.1.1999. At this stage the petitioner cannot be allowed to say that the District Magistrate was not empowered to decide the issue in question.;