N.U. Beg, J.
1. The District Board continued to function in Barabankl still the 30th of April, 1958. From the 1st of May, 1958, it was replaced by Antanm Zila parishad. The petitionerin this writ petition was a member of the Antanm ZilaParishad. His allegations in the present writ petition are that on the 7th of September, 1961, he received a letterin which a complaint was made against the conduct orrespondent No. 1 Sri Subedar Pandey. In this letter (sic)was stated that between the years 1948 and 1952 whenSubedar Pandey was acting as a Tax Officer he used tosome to Lucknow regularly and attend classes here during the day time. At the same time, he was showing hisattendance in the rural area of Barabanki as a Tax Officer, and also charging allowances in respect of it. It was further alleged in this complaint that respondent No. 1 wasappointed a permanent Secretary on one year's probationin place of one Sri Izhar Man who had taken leave preparatory to retirement and that the appointment of respondent No. 1 as a permanent Secretary at a time when the post was not vacant was illegal and against the rules. A similar letter was received by one Sri Ram Sewak Yadava, another member of the Antarim Zila Parishad, Barabanki,on the 13th of September, 1961.
2.In the present writ petition the main grievanceof the petitioner is that the appointment of Sri Subedar Pandey as secretary of the District Board, Barabanki wasillegal. The facts which have given rise to mis plea onbehalf of the petitioner are not in dispute. It is the admitted case of the parties that one Sri Izhar Ahmad Faruqi was appointed secretary of the District Board, Barabanhi, as long ago as 1923. On the 9th of August 1956, Sri Izhar Ahmad Faruqi made an application for grant or leave preparatory to retirement from the 14th of August 1956 upto the 14th of October, 1956. He was in (sic) entitled to further six months post-retirement leave. He was, therefore, allowed leave upto the 14th of April, 1957. On the same day, i.e. on the 9th of August, 1956, the President of the District Board temporarily appointed Sri Subedar Pandey to officiate in place of Sri Izhar Ahmad Faruqi from the 14th of August, 1956, the date when the leave of Sri Izhar Ahmad Faruqi started.
He further made a recommendation to the board that the lien of Sri Iznar Ahmad Faruqi on the permanent post of Secretary be suspended, and Sri Subedar ,pandey be appointed on probation in his place. This recommendation of the President was placed before a meeting of the board held on the 20th of August, 1956. The Board unanimously approved of the recommendation of the President and appointed Sri Subedar Pandey as secretary of the Board on probation with effect from that date. This led to an audit objection to the effect that the said order of appointment was irregular. There was no vacancy in the office of the Secretary, District Board, on the (sic) of August, 1956, as Sri Izhar Ahmad Faruqi the incumbent of the office was merely on leave preparatory to retirement. The resolution of the Board appointing Sri subedar Pandey substantively to the post of the secretary with effect from the zuth August, 1956, was therefore, according to the auditor, irregular. This audit note was brought to the notice of the Board in its meeting held on the 29th of August 1960. It tried to regularise the appointment of sri Subedar Pandey by bringing it Into line with the audit report. For this purpost it passed a resolution to the effect that Sri Subedar Pandey's confirmation will be taken to have been made on the 14th of October, 1957, one year after the date of superannuation of Sri Izhar Ahmad Faruqi.
3. The above irregularities came to the notice of the petitioner after he received the letter dated the 7th of September, 1961, which is Annexure 1 filed with The writ petition. The petitioner filed the present writ petition in the High Court on the 17th of November, 1961, Prayer No. 1 (1) in the writ petition related to certain resolutions at items Nos. 13(10) and 13(11) of the minutes of the meeting held on the 19th of September, 1961. This prayer has not been pressed before us. prayer No. (11) related to the issue of a writ of quo warranto requiring respondent No. 1 to show cause how his appointment as Secretary of the District Board, Barabanki, and, later on, as Secretary, Antarim Zila Parishad Barabanki, was valid. Prayer No. (Mi) related to the issue or a writ of mandamus restraining respondent No. 1 from acting as secretary of the Antarim Zila Parishad, BarabanKi and tunner restraining respondent No. 2 from allowing respondent No. 1 to act as the Secretary of the said Antarim Zila Parishad. Reliefs (ii) and (iii) have been strenuously pressed before us by the learned counsel for the petitioner. Rener No. (iv) is a residuary relief asking for the issue of any other writ or direction which the circumstances of the case may require.
4. The main question that arises in the present case is whether the resolution of the Board dated the 20th August, 1956, appointing Sri Subedar Pandey as secretary of the Board was a valid and a legal one. On behalf of the petitioner learned counsel has tried to assail its validity mainly on the following three grounds:
(1) Sri Izhar Ahmad Faruqi was on leave preparatory to retirement from the 14th of August, 1956 up to the14th of October, 1956, and on post-retirement leave from the 15th October, 1956, upto the 14th of April, 1957. There being no vacancy in the post of the secretary on the 20th August, 1956, no substantive appointment of any person to that post could be made upto the 14th ofOctober, 1956, or even upto the 14th of April, 1957.
2. Under Section 73 of the District Boards Act, 1922, (U.P. Act No. X of 1922) during the absence on leave of an officer of the Board the Board is entitled to appoint a person in his place only in an officiating capacity. It cannot, during such period, make a substantive appointment to the post.
3. Under the rules framed by the Government Sri Subedar Pandey could not be appointed a secretary or the District Board unless he was below 32 years of ageon the date of his appointment. Sri Subedar Pandey admittedly attained the age of 32 on the 28th August, 1956. He could, therefore, only be appointed a Secretary by a valid order of appointment prior to that date, me order of his appointment is contained in the resolution of theBoard dated the 20th August, 1956. This resolution being invalid his appointment must be treated as illegal. In this connection it was argued by the learned counsel that the rules framed by the State prescribing the age limitfor the appointment of a person as a secretary of me Board are mandatory and not directory.
5. Having heard learned counsel for the parties we are of the opinion that this writ petition should be allowed.
6. The first and the second argument of the learned counsel for the petitioner are interlinked and they may therefore be taken together. The argument of the learned counsel is that on the 20th of August, 1955, the Board could not have appointed any person substantively to the post of the Secretary, as the said post was not vacant on that date at all. Respondent No. 1 has in paragraph 6 of his counter-affidavit stated as follows:
'The deponent was appointed as Secretary by a resolution dated 20-8-1956 on one year's probation from me date of resolution.'
Respondent No. 2 has in paragraph 12 of his counter-affidavit admitted that
'It is true that substantive vacancy to the post of Secretary fell vacant after the date of retirement of Sri Izhar Ahmad Faruqi viz. 14-10-1956 but since the permanent incumbent went on leave preparatory to retirement a permanent arrangement was called for.'
On behalf of the respondents three facts are, therefore, admitted. They are as follows:
(1) That respondent no. 1 was appointed to the psiof the permanent Secretary on the 20th of August 1956;
2. That on that date Sri Iznar Ahmad Faruqi was on leave and therefore, there was no substantive vacancy in respect of the post of Secretary on the said date.
3. That the date of superannuation of Sri Izhar Ahmad was the 14th of October, 1956. Upto the 14th October, therefore, there could be no question of any permanent appointment to post of the Secretary for the simple reason that the said post could not be said to have fallen vacant. Sri Izhar Ahmad wasmerely on leave. The fact that the leave was taken preparatory to retirement would not make any difference. In fact Sri Izhar Ahmad Faruqi was allowed post-reurement leave also, and thus his leave was extended upto the 14th of April, 1957, and his Service Book shows that heretired on that date, that, however, would not make any difference to the present case. It must, therefore, be held that on the 20th of August, 1956, when the appointment of respondent No. 1 to the post of the permanent Secretary was made, there was no vacancy at all. Two persons cannot be appointed so as to till one post. That is possible only by the creation of an additional post. Reference in this connection might be made to Section 30 of the U. P. District Boards Act, 1922, which provides as follows: 'A board may by resolution determine what officer or servants are required for the discharge of the duties of the Board, and the salaries to be paid to them respectively; Provided that the appointment of a health officer shall be made by special resolution.'
It was open to the Board under this provision of law to create the post of an additional Secretary, and to appoint respondent No. 1 to that post. This, the. Board, admittedly, did not do. What the Board did was to appoint respondent No. 1 on the same post which was held by Sri Izhar Ahmad Faduqi. In tact that post was not vacant at all. If the post was already filled up by Sri Izhar Ahmad Faruqi on the crucial date, the substantive appointment of another person to a post which is not vacant cannot be legally sustained.
7. It is obviously for this reason that Section 73 (1) of the U. P. District Boards Act, 1922 has made the following provision:--
'73 (1) During the absence on. leave or other temporary vacancy in the case of any of the officers or servants mentioned in Sections 70 and 72 the board may appoint a person to act in the vacancy.'
The Secretary is an officer mentioned in Sections 70 and 72. Sri Izhar Ahmad Faruqi was on leave, and, during his absence, under the above provision of law, the Board could only make an officiating appointment. instead of making an officiating appointment, by its resolution dated the 20th of August, 1956, the Board proceeded to make a substantive appointment in his place, and actually did so. This action ct the Board is not warranted by the provisions of Section 73 (1) of the District Boards Act. In our opinion, the effect of Section 73 of the District Boards Act is to restrict the power of the Board in cases specified therein. The result would be that when the incumbent of the post was on leave, it was not open to the Board to fill up the post by making a substantive appointment in his place. The only course open to the Hoard in such a situation was to make an officiating appointment. A substantive appointment made in disregard of this provision of law would be a violation of the restrictive injunction inherent therein. This provision places a fetter on the power of the Board and any attempt on the part of the Board to break through it would be in excess of the limits prescribed therein and be fatal to the action itself. The result is that the resolution of the Board dated the 20th August, 1956, must be treated as unwarranted and illegal.
8. Although in our opinion the point sought to be made out by the learned counsel for the petitioner would stand established on a bare reference to the sections of the U. P. District Boards Act itself, the learned counsel also referred to the U. P. Fundamental Rules which also support the propositions contended for by him. The learned counsel referred to Rule 12 of the aforesaid rules in Chapter III of the Financial Handbook Volume II, Sub-clauses (a) and (c) of which are as follows:--
'12. (a) Two or more government servants cannot be appointed substantively to the same permanent post as the same time.
(b) . . . .
(c) A government servant cannot be appointed Sub-stantively to a post on which another government servant holds a lien'.
The relevant portion of Rule 13 of the aforesaid rules is asfollows:--
'13. Unless his lien is suspended under Rule 14 or transferred under Rule 14B, a government servant holding substantiveiy a permanent post retains a lien on that post;
(b) . . .
(d) While on leave; and
The provisions of rules 4 and 14B do not apply to the present case. Rule 14A (a) lays down; 'A government servant's lien on a post may in no circumstances be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post'.
9. Note 2 appended to Rule 56 at page 75 of the said Fundamental Rules runs as follows :
'The grant under Rule 86 of leave extending Deyond the date on which a government servant must compulsorily retire, or beyond the date up to which a government servant has been permitted to remain in service, shall be treated as sanctioning an extension of service upto the date on which the leave expires'.
The date of compulsory retirement of Sri Izhar Anmad Faruqi was the 14th October, 1956. His leave was, however, extended upto the 14th of April, 1957, on the ground that he was refused leave during the period of his service. Under the above rule the extended leave would also be counted as a period of his service. In the present case, however, this question does not arise as we resolution Itself was passed, even before the date or superannuation of Sri Iznar Ahmad Faruqi expired.
10. Learned counsel appearing for the respondents, however, argued that the Fundamental Rules relating to the lien of government servants on a post during the period of their leave would not be applicable to the servants of the District Board. The learned counsel referred to Rule 2 in Chapter I of the said rules which snows that the rules in question apply only to government servants. On the other hand, the learned counsel for the petitioner relied on regulation 45 framed by the Board under Section 173 of the U. P. District Boards Act. according to this regulation the question of granting leave to servants of the Board would be governed by the rules contained in Financial Handbook volume II. In this connection he further argued that the expression 'granting leave' is to be construed liberally so as to include the rules which entitle a person to whom leave is granted to a lien on the post held by him at the time when he took the leave.
In this connection he referred to the audit report are also to the proceedings of the Board as well as to the counter-affidavits filed by the respondents which themselves indicated that the Fundamental Rules applied to the servants of the District Board as well. The audit report was based on the Fundamental Rules. The allegation of the respondents is that the District Board had, in the present case, suspended the flen of Sri Izhar Ahmad Faruqi. The proceedings of the District Board are filed in support of the said allegation. The fact that the District Board thought it necessary to suspend the lien itself indicatesthat they considered that the principle of lien applied to its servants. In the present case, however, we do not think it necessary to enter into a discussion of the above-argument. It is possible to steer clear of this region or controversy in the present case because, as we have held above, the provisions of the District Boards Act itself are sufficient to nullify the resolution passed by the Board on the 20th of August, 1956.
11. The third argument of the learned counsel for the petitioner was that the appointment of respondent No. 1 constituted a contravention of the rules framed by the Government with regard to the age limit of the person to be appointed to the post of the Secretary, These rules, according to the contention of the learned counsel for the petitioner, were mandatory and not directory. In support of his argument the learned counsel relied on Section 70 of the U. P. District Boards Act which runs as follows:--
'70. (1) Every board shall by special resolution appoint a secretary and a superintendent of education who shall be whole-time salaried officers.
2. The appointment of We secretary and the superintendent of education and the conditions of their service shall be made in conformity with We rules framed by the State Government.
In the above provision the learned counsel placed special emphasis on the words that the appointment of the Secretary 'shall be made in conformity with the rules framed by the state Government'. The imperative form in which this sub-section has been couched seems to indicate that the rules framed thereunder are mandatory and have to be complied with by the Board while making appointments. The relevant rules are specified at page 207 of the district Board Manual. The heading of these rules is 'Rules prescribing qualification scales and of pay of District Board Secretaries' In the present case we are concerned with Rule 1 (b) which lays down that
'No person shall be appointed as secretary of a District Board unless he is less than 32 years of age, or has served as secretary to a board previously for at least two years'.
It is the admitted case of the parties that respondent No. 1 does not come under the second alternative because he had never served as Secretary to a Board previously. It is also the admitted case of the parties that respondent No. I attained the age of 32 on the 28th of August, 1956. He could, therefore, be appointed secretary of the District Board prior to that date. The order of the President dated the 9th of August 1956, only appointed him as officiating Secretary from the 14th or August, 1956. This did not, therefore, have the effect of appointing in a substantive capacity. The real order of appointment which did make the substantive appointment was contained in the resolution of the Board of the 20th of August, 1956. Respondent No. 1 attained the age of 32 on the 28th of August, 1956. It This resolution could be held to be valid the condition contained in Clause (b) of Rule 1 could be held to have been sufficiently complied with.
We have already held that this resolution has to be struck down as invalid. The only other resolution of the Board is of the 29th of August, 1960. By this resolution an attempt was made to regularise the proceedings by trying to bring it into line with the audit report. On misdate the Board passed a resolution confirming respondent No. 1 from the 14th of October, 1957. As stated above respondent No. 1 had already crossed the age of eligibility on the 28th of August, 1956. Any order orappointment subsequent to that date cannot, therefore, be of any avail. The provisions of Sub-section (2) of Section 70 quoted above indicate that the appointment of the Secretary shall be made in conformity with the said rule. There is, therefore, no doubt that in the present case Rule 1 (b) framed by the State Government was not complied with.
12. On behalf of the petitioner it was argued that the rule in question is mandatory. On the other hand, on behalf of the respondents it was contended that the rule m question is merely directory.
13. For the purpose of determining whether a certain provision of law is mandatory or directory it is not possible to lay down any universal rule. The answer would depend in every case on the particular circumstances of that case. tO enable a court to determine this question the subject matter of the provision of law has to be viewed in the light of the object of the enactment in question. The particular provision of law has to be read in the context of the scheme and purpose of the statute, and a conclusion has to be arrived at bearing in mind the consequences of non-compliance with the said provision of law. It the effect of non-compliance is to defeat the salutary purpdse for which the provision of law itself was framed then the court would be inclined to hold that the said provision of law is mandatory. The phraseology used by the legislature in enacting a provision of law is not a conclusive or clinching test.
The use of the word 'shall' might prima facie go toindicate that the legislature probably wanted the requirement to be of a mandatory type. In a particular context,however, the word 'shall' also might be used in respectof a directory provision of law. similarly although theword 'may' is ordinarily used in connection with directory provisions. In the particular circumstances of a caseand in the context m which the said word is used, it mayhave the effect of making the particular provision a mandatory one. Reterence in this connection might bemade to the cases of Bhikraj Jaipuria v. union ofIndia, AIR 1962 S. C. 113 and Collector of Monghyrv. Keshav Prasad Goenka, AIR 1962 S. C. 1694.
14. In the present case the learned counsel relied on a number of factors in support of his contention that the rule in question is mandatory. He referred to Section 70 (2) of the District Boards Act which lays down that the appointment of the secretary 'shall be made in conformity with the rules framed by the State Government'. The phraseology in which this provision of law is couclted appears to point ratner to the conclusion that the rules to be framed by the State Government were of a mandatory character. The rule in question itself is framed in prohibitory form and states that 'no person shall be appointed as a Secretary of a District Board unless ..... he is lessthan 32 years of age, or has served as Secretary to a Board previously for at least two years' The emphatically negative character of the above phraseology also points to the same conclusion.
The only alternative to the rule prescribing minimum age is also specified in Clause (b) of the rule, and that is service as secretary to a Board previously for at least two years. Clause (d) of Rule 1 would indicate that the legislature was not prepared to place implicit confidence in the conduct of the members of the Board in the matter of appointment. For this reason it has laid down in Clause (d) that no person shall be appointed as Secretary if any of his relations has been a member of theBoard in whose term the appointment takes place. The note attached to Clause (d) specifies the particular relations in detail. The proviso appended to rule 1 also indicates that any exception made to the rule had to be made not by the Board but by the State Government Rule 2 runs as follows:--
'2. Appointment in the first instance shall be on probation for one year and confirmation shall not take place, save with the previous approval of the State Government till the candidate has spent at least twelve months in the active discharge of the duties of district board secretary'.
Rule 5 runs as follows:--
'5. In special cases any one or more of the conditions specified in rule 1 may be waived with the approval of Government'.
This rule also points in the same direction. It indicates that the approval of the Government was necessary before any of the conditions specified in Rule 1 could be waived. the purpose of the rule obviously was to secure efficiency of the servants to be appointed. Appointment of persons of advanced age was obviously considered inadvisable as persons are able to put in strenuous work only upto a certain age. The permissible alternative to minimum age was prescribed as experience in the work of a secretary for at least two years. This was also designed to promote efficiency of the servants of the board. If this rule is contravened, in our opinion the object of framers of the rule would be defeated and us salutary purpose nullified.
15. In Crawford's book on the construction of statutes, 1940 Edition, at page 515 while discussing the question of the determination of mandatory or directory nature of a statute it is stated as follows:--
'The words of the statute, however, must first be considered, and then the nature, context and object of the statute, as well as the consequences of the various constructions'.
At page 516 a reference is made to the case of People v. Sutoliffe (7 N. Y. S. (2) 431) and the following quotation reproduced therefrom:
'It is a rule of statutory construction that where a statute is framed in terms of command, and there is no indication from the nature or wording of the Act or the surrounding circumstances that it is to receive a permissive interpretation it will be construed as peremptory. At pages 517 and 518 the doctrine of interpretation of statutes in this regard, as enunciated by Lord Campbelt, is quoted as follows:-- 'No universal rule can be laid down ... I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory'.
At page 519 of the same book it is stated as follows:--
'Ordinarily the words 'shall and 'must' are mandatory and the word 'may' is directory, although they are often used interchangeably in legislation'.
At page 523 while discussing the use of pronibitive or negative words it is stated as follows:--
'Prohibitive or negative words can rarely, if ever, be directory, or, as it has been aptly stated, there is but one way to obey the command 'tnou shalt not', and that is to completely refrain form doing the forbidden act . Andthis is so, even though the statute provides no penalty for disobedience.'
16. In Sonu sampat Shewale v. The jalgaon Borough Municipality, ILR (1958) Bom 113 the Bombay High Court while interpreting the rule framed by the Jalgaon Borough Municipality regarding the age of superannuation of the Chief Officer neld that the resolution of the Jalgaon Municipal Liorougii re-appointing a person past the age of superannuation, viz., 55 years to the post of the Chief Officer, a post included in Schedule C to the Rules, was ultra vires and unlawful. It was further held that the resolution of the Municipality passed for the improper purpose of circumventing the ruies of the Municipality relating to the continuance In service after superannuation was passed mala fide and was, therefore, liable to be set aside.
17. On behalf of the petitioner the learned counsel relied on a case of the Allahabad High court viz., Bhagwati Prasad Misra v. U. P. Government, AIR 1959 All 589. In this case a learned Judge of this court while determining the language of the rule quoted above observed as follows:--
'But before that question can be decided it is necessary to consider the provisions of Section 1/2 of the ACT which runs as follows:--
'172 (1) The State Government shall make rules consistent with this Act in respect of the matters described in Sections 25, 123, 157 and 163.
2. The State Government may make rules consistent with this Act -
(a) Providing for 'any matter for which power to make provision is conferred, expressly or by implication, on the State Government by this or any other enactment in force at the commencement of this Act; and
(b) generally for the guidance of a board or any committee of a board or any Government officer in any matter connected with the carrying out of the provisions of this Act'.
It would fie noticed that rule 1 mentioned above could not have been framed under Section 172 (1) because it is not a matter connected with Sections 26, 123, 157 and 163 of the Act'.
18. After referring to the contents of Sections 26, 123, 157 and 163 of the Act the learned Judge observed as follows:--
'None of these sections have got anything to do with the appointment of the Secretary. !t is therefore clear that Rule 1 has not been made and could not be made under Section 172 (1) of the Act. The rule 'must have been made under Clause (b) of Section 172 (2) of the ACT. A rule made under Clause (b) of Sub-section (2) of Section 172 of the Act is made only for the guidance of a board and disregard of that rule cannot be actionable wrong. Merely because that rule has been disregarde it cannot be said that the appointment of the respondent No. 4 is an appointment made without jurisdiction'.
We find it difficult to endorse the above line of reasoning. In our opinion Rule 1 would fall under the provisions of Section 172 (2) (a) of the U. P. Distnct Boards Act, 1922. Clause (a) of Sub-section (2) of Section 172 relates to rules which provide for any matter for which power to make provision is conferred explicitly or by implication on the State Government under the District Boards ACT or under any other enactment in force at the date of the commencement of this Act. We have already quoted Section 70 (2) of the District Boards Act which expressry provides for the framing of the rules by the State Government in the matter of appointment of the Secretary of aBoard. This provision of law does not appear to have been brought to the notice of the learned Judge. In any case, whatever view might be taken about the other clause's of Rule 1, we have no doubt in our mind that Clause (d) of Rule 1 is mandatory, and a breach of it cannot be treated as a mere irregularity capable of being condoned. We are, therefore, of the opinion that this argument of the learned Counsel for the petitioner has also substance in it and should prevail.
19. Before parting with this case we would like to mention that two preliminary objections were also taken by the learned counsel for the respondents.
20. The first objection was that the post of the Secretary having itself been abolished as a result of the coming into force of the U. P. Antartm Zila parishad Act, 1958 (U. P. Act XXII of 1958) and of the U r-Kshettra Samitis and Zila Parishads Act, 1951 (U. P. Act No. XXXIII of 1961) a writ of quo warranto in respect of it would in any case be futile. The second objection was that there has been delay in filing the present writ petition. We are or the opinion that none of these preliminary objections has any force.
21. So far as the first preliminary objection is concerned we find it difficult to entertain it in the counter-affidavits filed on behalf of respondents 1 and 2 there is no averment that the post of the Secretary held by respondent No. 1 has been abolished or that respondent No. 1 was not holding the said post at the date or the filing of the writ petition or any subsequent date. On the other hand, the counter-affidavit filed by respondent No. 1 indicates just the contrary. The writ petition was filed on the 17th of November, 1961. The counter-affidavit by respondent No. 1 Sri Subedar Pandey was tiled on the 30th of January, 1962. In this affidavit Sri Subedar Pandey has styled himself as 'Secretary Antarim Zila Parishad, Barabanki.' The U. P. Antarim Zila Parishad Act, 1958, was pubiisned in the Gazette on the 23rd of August, 1958, Section 1 (3) of the said Act provides that it snail be deemed to have come into force on the 29th day of April, 1958.
The U. P. Kshettra Samitis and Zila Parishads Act. 1951 (U. P. No. XXXIII of 1961) was published in the Gazette on the 3rd of December, 1961. The counter-affidavit of respondent No. 1, therefore, indicates that even after the coming into force of the U. P. Kshettra Samitis and Zila Parishads Act, 1961 he continued to hold the post of the Secretary. in any case, the point raised involves a mixed question of law and fact. It would involve an inquiry into a number of questions. The first question would be whether the post of secretary continued to exist after the coming into force of the U. P. Antarim Zila Parishad Act, 1958 or the U. P. Kshettra Samitis and Zila Parishads Act, 1951. If it did not continue to exist the second question would be as to when it was abolished. The third question would be whether, even if it was abolished, any other post which was its substitute was created. The fourth question would be whether the new post created was its equivalent. The fifth question would be whether respondent No. 1 was still designated as Secretary and, even if he was not designated as Secretary whether the present post held by him was on the basis of the post held by him previously as Secretary and, whether, in spite of the change in name, he was still continuing to draw emoluments and allowances to which he would have been entitled as Secretary.
On the last point the answer will have to be given in the affirmative. In paragraph 18 of the writ petition andthe affidavit the petitioner has stated that he was a member of the Antarim Zila Parishad Barabanki and was interested in seeing that no unqualified and illegally appoints Secretary was to continue in office or to draw salary or other allowances relating to the said office from the Antarim Zila Parishad. The relief of quo warranto is also prayea for not only in respect of his initial appointment but also in respect of his subsequent status as secretary, Antarim Zila Parishad, Barabanki. For the above reason we are of the opinion that this preliminary objection must fail in limine on the ground that no foundation for it was laid down in the counter-affidavit filed on behalf or the respondents.
22. Even on merits we are of the opinion that this objection has no force. An examination of the U. P. Antarim Zila Parishad Act, 1958, shows that this Act was promulgated only as an interim arrangement. Section 1 (3) of the Act lays down that it shall expire on the 31st day of December, 1960. The consequences of the constitution of Antarim Zila Parishad are specified in Section 6. This section does not mention that the post of Secretary was abolished.
23. Reliance on behalf of the respondents was placed on the provisions of Section 11 of the said ACT. Section 11 provided as follows:--
'Notwithstanding anytthing in the U. H. District Boards Act, 1922, the officer appointed or designated by the State Government as Additional District Magistrate (Planning) or as District Planning Officer of the district shall be the Chief Executive Officer of the Antarim Zila Parishad and shall exercise all the powers and perform all the functions and duties of the secretary of the Board under the said Act and the person for the time being holding the post of Secretary of the Board shall assist the Chief executive Officer in the performance of his functions and shall be subject to his general control'.
The above provision does not indicate that the post of Secretary was abolished. The words 'for the time being holding the post of Secretary' show that it was not completely abolished. On the other hand, by virtue of his office as Secretary of the Board he was required to assist the Chief Executive Officer which appears to be a new post created under the Act.
24. So far as the U. P. Kshettra samitls and Zila Parishads Act, 1961 is concerned reliance was placed on behalf of the respondents on Section 39. This section merely enumerates the new posts that were Being created under the said Act. Section 46 of the said Act laid down the method for filling up the new posts. In respect of the existing officers and servants of the Board Clause (d) of Section 46 (2) of the Act provided as follows:
'If any officer or servant as aforesaid declines to accept the post to which he is appointed on the ground that the pay or the time-scale of the pay attached to the post is less than his present time-scale of pay, then his service shall be terminated after such notice and on such terms as he would have been entitled to on the abolition of the post held by him if this Act had not been passed.'
This would indicate that the existing officers and servants of the Board continued to remain in service until their services were terminated. This would also indicate that, until termination of services took place, the officers continued to hold their posts unless they were appointed to fresh posts according to the manner laid down therein.
There is nothing to indicate in the present case whether the new posts created have been filled up. There is further no allegation that the services of respondent No. 1 have been terminated. It must, therefore, be taken that respondent No. 1 still continued to hold the office of the Secretary or, at any rate, he is still continuing to draw the salary and allowances relating to the said office. In this view of the matter the writ petition cannot be dismissed on the ground as being aeiayed or having become futile. In ILR (1958) Bom 113 already cited, above a Bench of the Bombay High Court consisting of lenaolkar and Kotwal, JJ. held as follows:
'It the appointment of an officer is illegal, every day that he acts in that office a fresh cause of action arises; there can, therefore, be no question of delay in presenting a petition for a writ of quo warranto in which his very right to act in such a responsible post has been questioned.'
The bench accordingly quashed the impugned resolution of the Jalgaon Borough Municipality re-appointing a person as Chief Office of the Municipality and restrained the Municipality from paying any salary or remuneration to that officer or allowing him. to continue to act as such, we are of the opinion that a similar relief is capable of being granted in the present case.
25. After the arguments were finished two applications were made on behalf of the respondents raising further points on the ground that these points had escapes the attention of the learned Counsel for the respondents while arguing the case. In the interests of justice, we entertained both the applications and gave a full hearing to the learned counsel for the respondents on the additional points sought to be agitated by him in these petitions.
26. me first application was application No. (SIC) of 1963 filed on the 27th April, 1963. In this applications it was stated that even if the resolution of the District Board dated the 20th August, 1956, appointing respondents. No. 1 as Secretary of the Board was held to be ultra vires and illegal, that would not affect his position as the acting Secretary of the Board. In support of this contentions the learned Counsel invited our attention to the order (sic) the President dated the 9th August, 1956. The said order runs as follows:
'Subject to the approval of the Board, I sanction (sic) Sri Faruqi the leave applied for from 14-8-56 and appoint Sri Subedar Pandey to officiate for him till a permanent appointment is made in his place and allow the further leave of six months as already sanctioned by the Board. This recommendation was accepted by the Board by resolution No. 22 passed by it on the 20th August, 1956. (sic) behalf of the respondents reliance was placed on the provisions of Section 73(1) of the District Boards Act reproduced above. Section 73(1) relates to two types or eases--first, absence on leave and secondry, temporary vacancy. The present case cannot be a case of temporary vacancy because on the date on which the order was passed there was no vacancy in the post. If at all, it can come only under the first part which relates to 'absence on leave'. If this provision is applied, then the appointment made by the Board could only last for the period of leave of Sri Izhar Ahmad Faruqi. This period of leave did not or any case last beyond the 14th April, 1957 and hence the appointment of the respondent No. 1 as the officering Secretary would cease to have effect on that date The respondent No. 1 cannot, therefore, be regarded as the acting Secretary thereafter.
27. Reliance on behalf of the respondent No. 1 was also placed on the provisions of Regulation 41 (c) which states as follows:
'41. The Chairman snail have We following additional powers: (a) omitted(b)
(c) To appoint a person to officiate for an officer to whom Section 70 or 72 applies. (d) omitted.'
According to this provision of law also, the Chairmancould appoint the respondent No. 1 only to officiate for another officer to whom Section 70 or 72 applied, that other officer in the present case was Sri Izhar Ahmad faruqi. The officiating appointment made by the Chairmanunder the above provision could also not last beyond the 14th April, 1957, when the officer for whom the respondent No. 1 was to officiate retired.
28. The same conclusion would be borne out by theactual order of appointment itself. This order is reproduced above. According to the said order Sri Subedar Pandey was to officiate for Sri Izhar Anmad Faruqi. The result would be that even according to the terms of theorder of appointment the period of appointment could not extend beyond the period for which he was to officiate, Onbehalf of the respondents emphasis was placed on the portion of the order which says that Sri subedar Pandeywould officiate for him till a permanent appointment was made in his place. The permanent appointment referred to in this order obviously contemplates a permanent appointment made before the expiry of the officiating period. Inany case, the powers of the Board in this regard are circumscribed by the provisions of Section 73 (1) of theDistrict Boards Act and those of the Chairman are restricted by Regulation 41(c) framed under the Act. The Board aswell as the Chairman could appoint the respondent No. 1 only up to the officiating period which period could not extend beyond the 14th April, 1957. The argument advanced on behalf of respondents in this regard must, therefore, berejected.
29. The second application, Civil Miscellaneous Application No. 387 of 1983, was made on the 29th July, 1963. In this application it is stated that by an order dated the 18th July 1963, the Governor of Uttar Pradesh was pleased to exempt Sri Subedar Pancey from the prescribedage limit for his appointment as secretary of the erstwhile District Board, Bara Banki, with effect from thedate he was placed on probation. A copy of the saidorder is filed x Annexure 'I' along with the said application. On the basis of the above order it is argued that the Government, having exempted Sri Subedar Pandeyfrom the upper age limit the appointment of Sri Subedar Padey should be deemed to be valid and legal. We are unable to accept this contention as well. Reference in this connection might be made to Rule No. 5 incorporatedin Notification No. 1217/IX-83-A 1930 dated July 12, 1935, which runs as follows:
'In special cases any one or more of the conditions specified In Rule 1 may be waived with the approval ofthe Government.'
Rule 5 quoted above Indicates that the basic order orexemption from the upper age limit has to be passed by the Board. It is only after a resolution to that effect has been passed by the Board that the Governor can accord approval to the same. In the present case it is not stated that any such resolution was passed by the Board either before or after the exemption given by the Government. The approval, if any, therefore, was in vacuo. In fact, the order of the Governor filed as Annexure '1' itself does not Indicate that it purported to approve orany resolution. It merely states that the Governor nadbeen pleased to exempt Sri Subedar Panaey from the prescribed age limit. The order in question, therefore, cannot have the effect of sweeping away the upper age limit prescribed under Rule 1(b). This argument of the learned Counsel for the respondents also falls.
30. The resolution of the District Board, Bara Bank, dated the 20th August, 1956, appointing respondent No. 1 as Secretary of the Board must, therefore, be struck down as ultra vires and illegal. It accordingly follows that the appointment of respondent no. 1 as Secretary, District Board, Bara Bank, by the aforesaid resolution of the 20th of August, 1956, is bad in law and cannot be sustained. Respondent No. l being illegally appointed as Secretary of the erstwhile District Board, Bara Banki, is not entitled to hold that office or any other office by virtue of the aforesaid appointment or to claim any salary or allowances or other emoluments on that basis and he is restrained from acting as such Further respondent No. 2 is restrained from allowing respondent No. 1 to act as Secretary or to hold any office by virtue of his being appointed as Secretary of the erstwhile District Board, Bara Banki, or to grant him any emoluments salary or allowances on that basis.
31. The facts of the present case show that respondent No. 1 was acting as a Tax Officer in the District Board, Bara Banki, prior to his appointment as secretary. We wish to make it clear that the grant of the above relief in the present case does not affect the position of respondent No. 1 as a Tax Officer or his claim to any other post or the salary or allowances relating thereto to which he might be entitled as an employee of the erstwhile District Board, Bara Banki, otherwise than a secretary of the said Board under the Uttar Pradesh Antarim Zila Parisnad Act, 1958 or the Uttar Pradesh Ksnettia Samitis and Zila Parishads Act, 1961.
32. This writ petition is accordingly allowed in terms of the above order. The petitioner is entitled to his costs from the respondents.