Hon'ble Mrs. Sangeeta Chandra,J.
This intra Court appeal has been filed by one Dr Manju Meher Yadav, who claims to be the chairman of the Nagar Palika Parishad, Baruasagar, district Jhansi. The appellant had approached the writ court by means of Writ Petition No. 39238 of 2016 challenging the Government Order dated 4th July 2016, which provides for appointment of inferior staff (Safai Karamchari) on contract basis in terms of the Government Order dated 21st December, 2015. Under the said order dated 4th July, 2016 separate selection committee has been constituted for engagement of Safai Karamchari on contract basis in respect of Municipal Corporation and Nagar Palika Parishad as well as Nagar Panchayat.
The writ petition has been dismissed by the learned Single Judge after relying upon the judgment of this Court in the cases of Mohd. Illiyas vs State of U.P. and others and Dinesh Kumar Prajapati vs State of U.P and others Writ Petition Nos. 18820 of 2016 and 39809 of 2016 decided on 11.08.2016 and 26.08.2016 respectively, in which it has been held that issues raised before the learned Single Judge were more or less identical to the one, which had been answered by the Division Bench in its judgement delivered in the aforesaid cases.
Shri Kartikeya Saran, learned counsel for the appellant challenges the judgement of the writ court on the ground that the judgment in the cases of Mohd. Illiyas and Dinesh Kumar Prajapati (supra) dealt with Municipal Corporation Act, whereunder there was no power to make temporary arrangement. He submits that under section 70 of the U.P. Municipalities Act, 1916 a specific power has been conferred upon the president of the Municipality to make temporary appointments. It is his case that contractual appointment shall also answer the description of temporary appointment and therefore, the State Government is not justified in by passing the provisions of section 70 of the Act by means of the Government Order impugned.
We have heard learned counsel for the parties and examined the record of the present appeal.
In our opinion the contention raised has only been so stated to be rejected. We may record that under section 70 of the Act a power to make appointment and fix the salary of temporary servant in the case of emergency, has been vested with the President of the Municipalities. The section itself contains a rider to the effect that the President shall exercise such power without contravening the general or special directions that the State Government may issue from time to time. It is relevant to re-produce section 70 of the Act which reads as under:
"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 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."
It is therefore clear that the power of President to appoint servants for the municipality is subject to two conditions:
(a) It can be exercised in case of emergency only.
(b) It cannot be exercised in violation of the general or special discretion of the State Government.
We may record that the power to make appointment on inferior staff is with the Executive Officer of the Municipality under section 75 of the Act, which reads as follows:
"75. Appointment of permanent inferior staff.- Except as otherwise provided, the Executive Officer shall appoint servants carrying scales of pay lower than the lowest scale of pay referred to in Section 74:
Provided that in the case there is no Executive Officer, the said appointment shall be made by the President."
From the impugned Government Order, we find that the selection Committee, which has been constituted for appointment of Safai Karamchari on contract basis includes, Executive Officer as one of the member along with other members.
In the totality of the circumstances on record, we find absolutely no good ground to interfere with the Government Order, which has been issued on the subject, specifically in view of the law laid down in the case of Mohd. Illiyas (supra).
The appeal lacks merit and is hereby dismissed.
.
(Sangeeta Chandra, J)( Arun Tandon, J) Order Date :- 7.12.2016 Sazia