- (1.) S. Rafat Alam and Sudhir Agarwal, JJ. Aggrieved by the judgment dated 31. 7. 1997 of Hon'ble single Judge dismissing the Writ Petition No. 13609 of 1981 the petitioner-appellant (hereinafter referred to as the "petitioner") has filed this intra- Court appeal under the Rules of the Court.
(2.) THAT facts in brief giving rise to the present dispute are that the post of Revenue Inspector in the scale of 195-300 was lying vacant at Nagar Palika, Saharanpur due to the death of one Sri Jagdish Prasad who was working on the said post. The Officer In-charge, Nagar Palika decided to fill in the post by direct recruitment. It appears that a requisition sent to Employment Exchange, Saharanpur on 15. 9. 1980 inviting names for making selection on the post of Revenue Inspector and fixing 29. 9. 1980 for interview. The Employment Exchange did not make any recommendation. On 29. 9. 1980 an office note was put up before the Officer In-charge, Nagar Palika, Saharanpur that "the employment exchange has not made any recommendation pursuant to the requisition dated 15. 9. 1980 and nobody appeared for interview on 29. 9. 1980 which was the date fixed for interview, since the post was lying vacant since long and, therefore, some of the applications which has directly been received in the office, if permitted be processed with and the applicants be directed to appear for interview. " The Officer In-charge approved the said office note on 30. 9. 1980 and fixed 6. 10. 1980 for interview of the candidates who had directly submitted their applications before the Nagar Palika. An office note was again submitted by the selection committee consisting of Officer In-charge, Executive Officer and Tax Superintendent on 8. 10. 1980 stating that interview held on 6. 10. 1980 and 8. 10. 1980 wherein the candidates who were working in Nagar Palika as well as outsiders appeared and after assessing their performance a merit list of three candidates, wherein the petitioner was at serial No. 1, was prepared and recommended for appointment. Pursuant to that recommendation, an appointment letter was issued on 8. 10. 1980 itself by the Officer In-charge appointing the petitioner on the post of Revenue Inspector in the pay scale of Rs. 195-300 on probation for one year. The Officer In-charge thereafter confirmed petitioner vide order dated 7. 10. 1981 on completion of one year service. It appears that in the meantime a complaint was made by one Sri Sohan Lal working as Revenue Collection Assistant and Sri Anand Kumar working as Clerk vide representations dated 20. 10. 1980 and 5. 12. 1980 respectively complaining that the petitioner was illegally appointed without following the procedure prescribed under the Rules whereupon the matter was enquired by the Commissioner, Meerut Division, Meerut and he held that the appointment of petitioner was irregular having not been made in compliance of the procedure prescribed therein and accordingly cancelled the same. The Nagar Palika, Saharanpur was directed to make fresh appointment in accordance with law. Aggrieved by the order dated 2. 10. 1981 the petitioner preferred Writ Petition No. 13609 of 1981 wherein this Court vide order dated 5. 11. 1981 stayed operation of the order dated 1. 12. 1981 and consequently the petitioner continued in service. The aforesaid writ petition has ultimately been dismissed by Hon'ble single Judge vide judgment impugned in this appeal. Learned counsel for the petitioner contended that the Commissioner in the impugned order dated 2. 10. 1981 held the appointment of petitioner being irregular for the reason that neither his name was recommended by the employment exchange nor prior approval of the State Government before making such appointment was obtained. He submitted that the aforesaid irregularities were curable and the Hon'ble single Judge has erred in law in observing that the appointment itself was illegal and, therefore, was rightly set aside by the Commissioner. He said that the Commissioner did not find the appointment of petitioner to be illegal but the Hon'ble single Judge has read something in the order of Commissioner which was not there so as to non-suit him. He also submitted that in the absence of any statutory provisions providing for appointment on the post of Revenue Inspector, it was open to the Nagar Palika, Saharanpur to make recruitment by receiving applications directly after placing the information regarding vacancy on the notice board and inviting applications from the prospective candidates. He contended that there was no requirement of publication of vacancy in the newspaper and, therefore, the Hon'ble single Judge has erred in law in holding that the appointment of petitioner was bad and illegal.
(3.) HAVING given our serious thought to the matter, however, we do not find any force in the submission. The post which are not within the purview of Centralised Service Rules and are in the category of Permanent Superior Staff were liable to be filled in by the President of concerned Municipality by virtue of Section 74 of the U. P. Municipalities Act, 1916 (hereinafter referred to as the "act" ). Section 74 as it stood in the year 1980 reads as under : "74. Subject to any provisions to the contrary contained in Sections 57 to 73, servants on or drawing a monthly salary exceeding Rs. 50 or in a city Rs. 75 shall be appointed and may be dismissed, removed or otherwise punished, or the services of a probationer may be terminated, by the President, subject to the right of appeal except in the case of the termination of the service of a probationer, to such authority within such time and in such manner as may be prescribed : Provided that an appointment on a monthly salary of Rs. 250 or over in the case of cities and of Rs. 100 or over in other cases shall be subject to approval of the board. " It cannot be disputed that in the absence of statutory rules the procedure for recruitment and condition of service can be governed by the executive orders. With respect to class III employees of Municipalities, the State Government issued an order on 4. 5. 1980 providing that if vacancies of class III employees are to be filled in by direct recruitment, the same shall be made through employment exchange and the procedure of filling of such vacancies as applicable to the Government Department should be adopted by local bodies. It also provided that the local bodies shall constitute a selection committee consisting of Chairman, Executive Officer and the Secretary of the Municipality. The selection shall be made on the basis of interview and if necessary by-holding a competitive test.;