MAHENDRA KUMAR Vs. EXECUTIVE OFFICER

JUDGEMENT

(1.) -Heard Sri Somesh Khare, learned counsel for the peti-tioner as well as Sri Manoj Misra learned counsel for the Nagar Panchayat Town Area and Standing Counsel for the State. Initially the order dated 10.9.1998 (Annexure-3 to the writ petition) whereby the initial appointment of the petitioner was made is under challenge and the petitioner subsequently challenged the order dated 31.1.1999, passed by District Magistrate.

(2.) AS claimed one Smt. Munni Devi, the Chairman of Nagar Panchayat, Barkhera, district Pilibhit, appointed the petitioner on 7.5.1998 as a clerk in Nagar Panchayat and consequent upon such appointment the petitioner joined the post. According to the petitioner the appointment of the petitioner was made in exercise of power under Section 74 of U.P. Municipalities Act, 1916 (in short hereinafter called the 'Act') after passing a resolution dated 18.12.1995 of Town Area, Barkhera, district Pilibhit, when the irregularities in making the appointment of the petitioner was brought to the notice of District Magistrate, he issued a letter on 10.9.1998 (Annexure-3) to the Chairman/ Adhayaksh, Nagar Panchayat, Barkhera, District Pilibhit, to cancel the said appointment. The petitioner had challenged the order dated 10.9.1998 (Annexure-3) on the ground that since the appointment of the petitioner was made valid by the Chairman against the substantive vacancy after passing of the resolution of Nagar Panchayat, therefore, the District Magistrate cannot cancel the appointment, as the power of District Magistrate under Section 34 (1A) of 'Act' is restricted, and further before passing the petitioner order dated 10.9.1998 neither any notice was issued nor petitioner was afforded opportunity of hearing.

(3.) ACCORDING to the petitioner the District Magistrate has limited jurisdiction as provided under Section 34 (1A) of 'Act' and has no power to terminate the services of the petitioner and Section 70 deals with the appointment of temporary servants and in the facts and circumstances the termination order dated 10.9.1998 and subsequently order dated 31.1.1999 could not be passed by the District Magistrate.