- (1.)BY this application under Articles 226 and 227 of the Constitution, the petitioner questions the legality of the appointment by respondent 4, the standing committee of the Municipal Corporation, Jabalpur, of respondent 3, Ramakrishna Upadhyay, as lecturer In Economics in L. N. Yadav Higher Secondary School, Jabalpur, alleges that he Is usurping the office of lectureship, and contends that he, that is the petitioner, himself should have been appointed to the post. The applicant prays that a writ in the nature of quo warranto be issued against respondent 3 to show cause as to by what autherity he is functioning and acting as lecturer In Economics In the aforesaid school, that the resolutions passed by respondent 4, the standing committee, with regard to the appointment of respondent 3 be quashed by writs of certiorari, and respondent 3 be restrained from functioning and acting as lecturer, and further that a direction be issued to the Municipal Corporation, Jabalpur, and its standing committee to appoint him to the post.
(2.)THE material facts are that the L. N. Yadav Higher Secondary School, Jabalpur, is an institution run and managed by the Municipal Corporation, Jabalpur. The applicant, Ras Bihari Pandey, was at the material time, that is, on 20 March 1963, holding the poet of a teacher in the pay-scale of Rs. 60?120 and was undergoing training in B. Ed. course. At that time, respondent 3, Ramakrishna, Upadhyay was a teacher in "modern (subjects" in Sanskrit Vidyapeeth, also an institution run and managed by the Corporation. He was in the pay-scale of Rs. 100?200. Early in 1963, the post of lecturer in Economics in the L. N. Yadav Higher Secondary School fell vacant. On 20 March 1963, the sanding committee of the Corporation passed a resolution promoting Ramakrishna Upadhyay to the post on the basis of "seniority," and further resolved to obtain the consent of the State Public Service Commission to the promotion. It appears that after the passing of this resolution the Corporation took no step for obtaining the consent of the Public Service Commission. On 1 October 1963, the standing committee passed another resolution saying that the committee had appointed Ramakrishna Upadhyay to the post of lecturer temporarily for a period of six months and had directed that "sis case" should be referred to the Public Service Commission, and that inasmuch as the matter had not been referred to the Public Service Commission, the period of the appointment of Ramkrlshna Upadhyay was extended till the consent of the Public Service Commission to his appointment was obtained. On behalf of the municipal corporation, It was stated before us that pursuant to the resolutions passed on 20 March 1963 and 1 October 1963 the matter of the appointment of Ramakrishna Upadhyay has been referred to the Public Service Commission and is pending for consideration before the Commission.
(3.)SRI Dharmadhikari, learned Counsel appearing for the petitioner, assailed the validity of the appointment of Ramakrishna Upadhyay to the post of lecturer in Economics on four grounds. First, It was said that according to the memorandum issued by the Divisional Superintendent of Education on 22 March 1963 to the managers of all non-Government higher secondary schools of Jabalpur division drawing their attention to the qualifications which persons for appointment as principals, lecturers and teachers should fulfill, Ramakrishna Upadhyay was not qualified to be appointed as lecturer whereas the petitioner was; that the said memorandum also required that the appointments of principals, lecturers and teachers in non-Government higher secondary schools should be approved by the Divisional Superintendent of Education, Jabalpur; and that no such approval of the Divisional Superintendent of Education was obtained to the promotion or appointment of Ramakrishna Upadhyay. Secondly, It was urged that under Section 58 of the Madhya Pradesh Municipal Corporation Act, 1956, permanent appointment to the post of a lecturer carrying a salary exceeding Ra. 150 could be made only by the standing committee in consultation with the State Public Service Commission in the manner prescribed; that under Sub-sec (2) of Section 58 the standing committee could make a temporary appointment without consulting the Public Service Commission only for a period not exceeding six months; and that as the effect of the aforesaid two resolutions was to appoint Ramakrishna Upadhyay temporarily for a period exceeding six months without consulting the Public Service Commission, the appointment was invalid and Ramakrishna Upadhyay could not continue in the post virtually on a permanent basis when the Commission was no, consulted. ' Thirdly, it was submitted that the resolutions passed by the standing committee with regard to the appointment of Ramakrishna Upadhyay were invalid also for the reason that Sri Vijay Shankar Upadhyay, the father of respondent 3, Ramakrishna Upadhyay, who was a member of the standing committee, voted and took part In the discussion of the matter of his son's appointment when it came up before the meeting of the standing committee contrary to the provision contained in Section 35 of the Madhya Pradesh Municipal Corporation Act, 1956, prohibiting a councilors from voting or taking part in the discussion of any matter In which directly or indirectly he has any interest. Lastly, it was contended that the standing committee did not at all consider the question whether the petitioner, who was qualified for the appointment, should be promoted to the post of lecturer In Economics, and thus there was a "denial of equal opportunity" as between him and respondent 3 in contravention of Article 16 (1) of the Constitution.