BALA PRASAD NAIK Vs. COMMISSIONER, JABALPUR DIVISION

JUDGEMENT

(1.) BALA Prasad Naik was appointed a Lecturer in the Higher Secondary School maintained by the Municipal Council of Murwara (Katni) by resolution dated 11th December 1958 and he was later confirmed in that post by resolution dated 14th June 1959. The post of the Principal of that institution got vacant and after advertisement several persons applied for the post of Principal including the petitioner and respondent No. 4 Bansgopal Dubey. The selection committee appointed for the purpose selected the petitioner as the best candidate and placed him at No. 1. Respondent No. 4 was placed at No. 2. This report was considered by the standing committee which also accepted the recommendations of the selection committee. Consequently by Annexure 'B' the Chief Municipal Officer appointed the petitioner as Principal for one year from 1st July 1970 subject to the approval of the State Government. This order is dated 23rd June 1970 and is based on the standing committee's ressolution No. 114 dated 22nd June 1970. The President of the Municipal Council by order Annexure 'C' dated 29th June 1970 directed that as this post was one of the posts covered by section 94(4) of the M.P. Municipalities Act by virtue of a notification of the Government dated 5th May 1967, the order of appointment would remain in abeyance pending receipt of approval from the State Government.

(2.) AGAINST this order appointing the petitioner as the Principal, respondent No. 4 filed an appeal before the Commissioner and the petitioner also filed an appeal before the Commissioner against the order of the President placing the order of appointment in abeyance as stated above. The Additional Commissioner, who heard both the appeals, allowed the appeal of respondent No. 4. A preliminary objection bad been taken by the petitioner before the Additional Commissioner that no appeal lay against the order of appointment; but it was not accepted by the Additional Commissioner on the ground that the present respondent No. 4 was competent to file an appeal as he had not been promoted and his non -appointment amounted to withholding of promotion. On merits the Additional Commissioner held that a wrong procedure for recruitment had been adopted because no appointment could be made in anticipation of the Government approval and also because the promotion had not been made in accordance with the rules, which according to the Additional Commissioner, provided that the senior most lecturer should be selected as Principal unless he is found unfit and that he should be superseded only for sufficient reasons. On those grounds the appeal of respondent No. 4 was allowed and the case was remanded to the Municipal Council for fresh disposal, Conseouently, the appeal filed by the petitioner was dismissed;

(3.) WE will first deal with the order of the President directing the order of appointment to remain in abeyance till the approval of the State Government is received. This direction has been given on the basis that the post of the Principal of the Institution is a specified post within the meaning of section 94(4) of the Municipalities Act. This sub section is as follows : -