JUDGMENT M.L. Chaturvedi, J.
1. This is an appeal against an order of a learned Judge of this Court allowing a writ petition.
2. In brief, the facts of the case are that the appellant was given a temporary appointment as a clerk to fill a leave vacancy in the office of the District Board of Saharanpur. Then two permanent vacancies in the posts of clerks occurred, and the district board appointed the first respondent and one Ram Lai to the posts. The appellant, who had been temporarily appointed to one of these posts, went in appeal against this order to the Commissioner, and the Commissioner, Meerut Division, allowed his appeal holding that the appellant had a better claim to the appointment than the first respondent. This order was passed on 5 July 1955. The first respondent then filed a writ petition in this Court mainly on the ground that no appeal lay to the Commissioner against the order of the district board appointing the first respondent to the permanent post. Mr. Justice Mehrotra was of the opinion that the respondent's contention was correct and he passed an order quashing the Commissioner's order.
3. The learned Counsel for the appellant has argued before us that the order passed by the district board appointing the first respondent to the permanent post was appealable to the Commissioner, and the Commissioner's order should not have been quashed. The relevant section on the point is Section 82 of the Uttar Pradesh District Boards Act (U.P. Act X of 1922). According to this section a power to decide all questions arising in respect of service, leave, pay, allowance and privileges of the servants of the board, receiving a monthly salary of more than Rs. 40 and the power to appoint, grant leave, punish or transfer such servants shall vest in the president, and the said powers with respect to servants receiving a salary up to Rs. 40 per month shall vest in the secretary of the board. There are four provisos to the section, but we are concerned only with the first proviso which is as follows:
Provided first, that in case the president in the exercise of his powers under this section dismisses a servant of the board or imposes a fine exceeding in amount one month's play of the person fined or orders suspension for a period exceeding one month or orders reduction by way of punishment or supersedes any such servant in the matter of promotion, the said servant shall have a right of appeal to the State Government within one month from the date on which the order of the president is communicated to him.
It is admitted that the State Government has been authorized to delegate its powers under this proviso to Commissioners of divisions, and it has delegated those powers to the Commissioners.
4. The contention of the learned Counsel for the appellant is that the order which was set aside in appeal by the Commissioner was an order superseding the appellant and was consequently appealable to the Commissioner under this proviso. But the learned Counsel has not been able to point out any section of the Act or any rule or order made or passed under it, which says that a person appointed to a temporary post has any claim or right to be confirmed in a permanent vacancy in preference to an outsider. The appellant was admittedly working as a temporary clerk and no obligation appears to have been imposed on the district board to appoint him to a permanent vacancy as soon as it occurred. The appellant's appointment being merely a temporary one, his services could be terminated at any time after giving him the necessary notice. We are not concerned with the propriety of the order of the district board and have to confine our attention to the legal rights of the parties. The appellant having no claim to the permanent appointment, it cannot be said that he has been superseded. If the appointment had been made after terminating the appellant's services, the argument that he had been superseded would have been an impossible one. The fact that the termination of his services came after the respondent's appointment makes no difference in principle. The learned Counsel for the appellant then drew our attention to a rule printed at p. 209 of the District Boards Manual. This rule says that a common list shall be maintained of all the clerks employed in the district board, including the clerks appointed in the Education Department, and that promotion from this list to higher posts shall be made by the president of the board and the chairman of the education committee. The learned Counsel argues that the rule requires that a list of all clerks should toe maintained, including those who have been appointed in temporary vacancies, that promotion should ordinarily be made by seniority and thus the appellant should be deemed to have been superseded, as an outsider was given the appointment in preference to him. The intention of the rule is the maintenance of a common list of all the clerks of different departments under the board as promotion to different departments is to be made from the common list, after consultation with the president of the board and the chairman of the education committee. There is no evidence to prove that the appellant's name was brought on this register, and it is possible that the register is only of the permanent employees in the posts of clerks, because the object of the rule is to lay down a principle for the promotion of the clerks of the district board to higher posts. The rule nowhere concerns itself with the confirmation of temporary clerks, nor with the first permanent appointment to the posts of clerks. There is no suggestion in it that the appointment of an outsider to the permanent post of a clerk should be taken as a super session of a temporary hand.
5. We do not find any force in the contentions of the learned Counsel for the appellant and dismiss the appeal with costs.