S.S. sandhawalia, J. - (1.) THIS petition under Articles 226 and 227 of the Constitution of India has been admitted to a hearing by the Division Bench as the provisions of Section 3 of the Punjab Municipal (Executive Officer) Act, 1931, fall for construction therein.
(2.) THE facts are hardly in dispute. The Punjab Municipal (Executive Officer) Act of 1931 (hereinafter called the Act) was extended to' the Municipal Committee of Rohtak by a notification in the year 1963. The existing Municipal Committee failed to muster the requisite 5/8ths majority of the total constituted members of the Committee which is necessary for the appointment of an Executive Officer by the Committee and consequently the Committee could not recommend any person for appointment as an Executive Officer. Accordingly the Government acting under the provisions of Section 3(4) appointed N.C. Bhardwaj, Respondent No. 2, as the Executive Officer for a period of five years on the 23rd December, 1963. The elections to the present Municipal Committee, Rohtak, which consists of 27 elected members took place in March, 1968 and 12 members were returned on the Congress ticket and 9 on the Jan Sangh ticket. The two Petitioners in the writ petition are respectively the leaders of the Congress and the Jan Sangh parties in the Municipal Committee. As the term of office of Respondent No. 2 as an Executive Officer was to expire on the 23rd December, 1968, a special meeting of the Committee was called on the 21st November, 1968, for the purpose of considering the appointment of an Executive Officer. However, it was noticed that the calling of the said meeting was defective as the requisite seven days notice had not been given an objection being raised the said meeting was adjourned on the 17th of December, 1968. Meanwhile as the term of the office of Respondent No. 2 was to expire on the 23rd of December, 1968, the Governor of Haryana by his order, dated the 20th December, 1968, renewed the appointment of Respondent No. 2 for a further period of five years with effect from the 24th of December, 1968, in the time -scale of Rs. 500 - -50 - -750 which he was drawing at the relevant time. It is this renewal of the appointment of Respondent No. 2 which has been challenged in the present writ petition. Allegations of bias and lack of bona fides had also been made against Respondent No. 3, the Deputy Commissioner, Rohtak suggesting that he was interested in the re -appointment of Respondent No. 2, but these were not pressed at the time of the hearing of the petition. The primary contention of Mr. Sachar on behalf of the Petitioners is that the power of the Government to appoint or renew any appointment of an Executive Officer under Section 3(4) of the Act can in no case exceed a period of five years in all. Reliance for this submission was placed on the language of Sub -section (4) itself and the contention was sought to be buttressed by the variance in the language used in Sub -section (1) of Section 3 regarding the period of appointment by the Municipal Committee of an Executive Officer. It was argued with vehemence that the right of appointment of an Executive Officer vests primarily in the Municipal Committee and on their failure once to do so this right cannot be defeated for a period of more than five years. Reliance was placed on a Single Bench judgment of this Court in Ram Das Passi v. The State of Punjab and Ors., 1956 P.L.R. 89.
(3.) TO appreciate the rival contentions raised it is necessary to refer briefly to the outlines of the rather exhaustive provisions of Section 3 of the Act regarding the appointment of the Executive Officer. Sub -section (1) thereof provides for the appointment of the Executive Officer by the Committee with the approval of the Government by a resolution passed by not less than 5/8ths of the total number of members constituting the Committee, at a special meeting convened for this purpose. Sub -sections (2) and (3) lay down that if in a special meeting so convened the requisite majority cannot be secured for any candidate, the Chairman shall on a requisition convene another meeting to be held within 14 days thereof and in tins adjourned meeting also the resolution for appointment must again be carried by the earlier prescribed majority of 5/8ths. On the failure of the Municipality to appoint an Executive Officer Sub -section (4) gives the power of appointment to the Government for a renewable period not exceeding five years. Sub -sections (5) and (6) merely provide that a member of a Committee when appointed an Executive Officer shall cease to be a member of the Committee and that the remuneration of the Executive Officer shall be payable from the municipal Fund. Sub -section (7) gives the powers to suspend or remove the Executive Officer to the State Government and further lays down that if the Committee passes a resolution with the 5/8ths majority referred to above, the Executive Officer shall be so suspended or removed and the Committee will then appoint a person to officiate as an Executive Officer with the approval of the Government. Lastly Sub -sections (8) and (9) relate to the granting of leave and for making provision in the event of death, resignation or removal of the Executive Officer. The crucial provisions on which the present case turns are Sub -sections (1) and (4) of Section 3 which may be set down in extenso against each other: Section 3(1) Sub -section (4) of Section 3 Appointment and Pay of Executive Officer. - -(1) Notwithstanding anything to the contrary contained in Sections 36 and 27 of the Municipal Act, the committee shall, by resolution to be passed by not less than five -eighths of the total number of members constituting the committee for the time being, or the meeting convened the purpose of appointing an Executive Officer at which no other business may be transacted, appoint, within three months from the date of the notification issued under Sub -section (2) of Section 1, a person, with the approval of the State Government, as Executive Officer, for a renewable period of five years on such rate of pay not exceeding one thousand and five hundred rupees inclusive of all allowances, as it may deem fit. If the committee fails to appoint an Executive Officer within three months from the date of notification issued under Sub -section (2) of Section 1, the State Government may appoint any person as Executive Officer of the committee for a renewable period not exceeding five years on such rate of monthly pay not exceeding Rs. 1,500 inclusive of all allowances as it may deem fit.;