Judgment

SINGH, J.:- This appeal is directed against the judgment and order of the High Court of Allahabad dated July 28, 1986 (reported in 1987 Lab IC 728) dismissing the appellants petition under Art. 226 of the Constitution challenging the order of the Commissioner, Varanasi Division dated February 13, 1980 setting aside the order of Municipal Board, Jaunpur appointing the appellant as Tax Inspector.

2. The Municipal Board, Jaunpur issued advertisement inviting applications for appointment to the post of Tax Inspector. The advertisement stated that the existing employees of the Revenue Department of the Municipal Board were eligible for consideration along with outsiders. Hari Mohan respondent No. 3 who was the seniormost Tax Collector working in the Municipal Board, Jaunpur was called for interview but he refused to appear for the interview on the plea that the post of Tax Inspector should have been exclusively filled by promotion and as he was the seniormost Tax Collector he should be promoted without considering any outsider. The Municipal Board ignored his claim and selected the appellant, and appointed him to the post of the Tax Inspector by the order dated 11-3-78. Respondent No. 3 thereafter filed a claim petition before the Services Tribunal constituted under the U. P. Public Services Tribunals Act, 1976 but sub sequently he withdrew the same on 23-12-79. Thereafter he filed a representation to the Prescribed Authority i.e. the Commissioner, Varanasi challenging appellants appointment to the post of Tax Inspector. The Commissioner by his order dated 13-2-80 set aside the order of the Municipal Board and cancelled the appellants appointment on the ground that the respondent No. 3 was entitled to promotion in pursuance to the directions contained in the Government order dt. 10-4-50. The appellant filed a writ petition under Art. 226 of the Constitution before the High Court challenging the order of the Commissioner. A learned single Judge (B. D. Agarwal, J.) of the High Court of Allahabad dismissed the writ petition and affirmed the order of the Commissioner on the findings that the appellants appointment was made in violation of the Government order dt. 10-4-50. Hence this appeal.

3. After hearing learned Counsel for the parties at length we are of the opinion that the High Court committed manifest error in upholding the order of the Commissioner. The basic question which arises for consideration is whether the post of Tax Inspector, under the provision of the U. P. Municipalities Act, 1916 (hereinafter referred to as the Act) or any rules framed /thereunder or under the Government order dated 10-4-1950 the post of Tax Inspector was required to be filled by promotion only and not by direct recruitment. The Prescribed Authority i.e., the Commissioner as well as the High Court both-proceeded on the assumption that the Government order dated 10-4-50 had been issued by the State Government in exercise of its supervisory powers under S. 71 of the Act and as such it was binding on the Municipal Board, and the directions contained therein required the Municipal Board to fill up the post of Tax Inspector exclusively by promotion and not by direct recruitment. In making the appellants appointment as a direct recruit, the Municipal Board acted in violation of the directions contained in the aforesaid Government order, therefore, the appellants appointment was rendered illegal. The High Court upheld the order of the Prescribed Authority on these findings. Learned Counsel for the appellant urged that the directions contained in the Government Order dated 10-4-50 were ultra vires the State Governments powers under S. 71 of the Act. He placed reliance on Rameshwar Prasad v. Municipal Board, Pilibhit, 1958 All U 363 : (AIR 1958 All 841). The learned counsel further urged that the aforesaid decision was approved by two other learned Judges of the High Court in Ram Kripal Garg v. State of U. P., Writ Petition No. 4556 of 1965, dt. 16-9-