N.U.BEG, J. - (1.) THE District Board continued to function in Barabanki till the 30th of April, 1958. From the 1st of May, 1958, it was replaced by Antarim Zilia Parishad. The petitioner in this writ petition was a member of the Antarim zilia Parishad. His allegations in the present writ petition are that on the 7th of September, 1961, he received a letter in which a complaint was made against the conduct of respondent No. 1 Sri Subedar Pandey. In this letter it was stated that between the years 1948 and 1952 when Subedar Pandey was acting as a Tax Officer he used to some to Lucknow regularly and attend classes here during the day time. At the same time, he was showing his attendance in the rural area of Barabanki as a tax Officer, and also charging allowances in respect of it. It was further alleged in this complaint that respondent No. 1 was appointed a permanent Secretary on one years probation in place of one Sri Izhar Miart who had taken leave preparatory to retirement and that the appointment of respondent No. 1 as a permanent Secretary at a time when the post was not vacant was illegal and against the rules. A similar letter was received by one Sri Ram Sewak Yadava, another member of the Antarim Zila Parishad, Barabanki, on the 13th of September, 1961.
(2.) IN the present writ petition the main grievance of the petitioner is that the appointment of Sri Subedar Pandey as Secretary of the District Board, Barabanki was illegal. The facts which have given rise to this plea on behalf of the petitioner are not in dispute, it is the admitted case of the parties that one Sri Izhar Ahmad Faruqi was appointed secretary of the District Board, Barabanki, as long ago as 1923. On the 9th of August 1956. Sri Izhar Ahmad Faruqi made an application for grant of leave preparatory to retirement from the 14th of August 1956 up to the 14th of October, 1956. He was in fact entitled to further six months post -retirement leave. He was, therefore, allowed leave upto the 14th of April, 1957. On the same day, i.e. on the 9th of August, 1956, the President of the District Board temporarily appointed Sri Subedar Pandey to officiate in place of Sri Izhar Ahmad Faruqi from the 14th of August, 1956, the date when the leave of Sri Izhar Ahmad Faruqi started. He further made a recommendation to the Board that the lien of Sri Izhar Ahmad Faruqi on the permanent post of Secretary be suspended, and Sri Subedar Pandey be appointed on probation in his place. This recommendation ct the President was placed before a meeting of the Board held on the 20th of August, 1956. The Board unanimously approved of the recommendation of the President and appointed Sri Subedar Pandey as Secretary of the Board on probation with effect from that date. This lea to an audit objection to the effect that the said order of appointment was irregular. There was no vacancy in the office of the Secretary, District Board, on the 20th of August, 1956, as Sri Izhar Ahmad Faruqi the incumbent of the office was merely on leave preparatory to retirement. The resolution of the Board appointing Sri Subedar Pandey substantively to the post of the secretary with effect from the 20th August, 1956, was therefore, according to the auditor, irregular. This audit note was brought to the notice of the Board in its meeting held on the 29th of August 1960. It tried to regularise the appointment, of Sri Subedar Pandey by bringing it into line with the audit report. For this purpose, it passed a resolution to the effect that Sri Subedar Pandeys confirmation win be taken to have been made on the 14th of October, one year after the date of superannuation of Sri Izhar Ahmad Faruqi. The above irregularities came to the notice of the petitioner after he received the letter dated the 7th or September, 1961, which is Annexure -1 filed with the writ petition. The petitioner filed the present writ petition in the High Court on the 17th of November, 1961. Prayer No. 1(1) in the writ petition related to certain resolutions at items Nos. 13(10) and 13(11) of the minutes of the meeting held on the 19th of September, 1961. This prayer has not been pressed before us. Prayer No. (11) related to the issue of a writ of quo warranto requiring respondent No. 1 to show cause how his appointment as Secretary of the District Board, Barabanki, and, later on, as Secretary, Antarim Zila Parishad Barabanki, was valid. Prayer No. (iii) related to the issue or a writ of mandamus restraining respondent No. 1 from acting as secretary of the Antarim Zila Parishad, Barabanki and runner restraining respondent No. 2 from ail owing respondent No. 1 to act as the Secretary of the said Antarim Zila Parishad. Reliefs (ii) and (iii) have been strenuously pressed before us by the learned counsel for the petitioner. Refer No. (iv) is a residuary relief asking for the issue of any other writ or direction which the circumstances of the case may require.
(3.) THE man question that arises in the present case is whether the resolution of the Board dated the 20th August, 1956, appointing Sri Subedar Pandey as secretary of the Board was a valid and a legal one. On behalf of the petitioner learned counsel has tried to assail its validity mainly on the following three grounds : (1) Sri izhar Ahmad Faruqi was on leave preparatory to retirement from the 14th of August, 1956 up to the 14th of October, 1956, and on post -retirement leave from the 15th October, I9bb, upto the 14th of April, 1957. There being no vacancy in the post of the secretary on the 20th August, 1956, no substantive appointment or ,any person to that post could be made upto the 14th of October, 1956, or even upto the 14th of April, 1957. (2) Under Section 73 of the District Boards Act, 1922 (U.P. Act No. X of 1922) during the absence on leave of an officer of the Board the Board is entitled to appoint a person in his place only in an officiating capacity. It cannot, during such period, make a substantive appointment to the post. (3) under the rules framed by the Government Sri Subedar Pandey could not be appointed a secretary or the District Board unless he was below 32 years of age en the date of his appointment. Sri Subedar Pandey admittedly attained the age of 32 on the 28th August, 1956. He could, therefore, only be appointed a secretary by a valid order of appointment prior to that date. The order of his appointment is contained in the resolution of the Board dated the 20th August, 1956. This resolution being invalid his appointment must be treated as illegal, in this connection it was argued by the learned counsel that the rules framed by the State prescribing the age limit for the appointment of a person as a Secretary of me Board are mandatory and not directory. ;