1. This writ application has been filed on behalf of the petitioner for quashing two notifications dated 18th April, 1990. By the first notification the services of the petitioner has been withdrawn with immediate effect by the Urban Development Department, Government of Bihar and by the other notification respondent no. 6, Sri Subodh Kumar Sinha, who was then Assistant Engineer in the Zila Parishad, Samastipur, has been directed to act as the Executive Officer of the Rosera Municipality in addition to his own duties.

2 There is no dispute that before the issuance of the aforesaid notifications, the petitioner, who is an employee of the Urban Development Department, had been deputed to the aforesaid Rosera Municipality to act as the Executive Officer of the said Municipality. On behalf of the petitioner it was pointed out that he has been recalled to his parent department from the post of Executive Officer, Rosera Municipality, at the instance of Sri Subodh Kumar Sinha, respondent no. 5, on whose behalf a Member of Legislative Assembly addressed a letter dated 29.3.1990 to the Minister, Urban Development Government of Bihar, requesting the Minister to withdraw the petitioner to the parent department and to post respondent no. 5, who was then Assistant Engineer in Zila Parishad, Samastipur, to act as Executive Officer of the said Municipality. A copy of that letter has been annexed to this writ application and marked as Annexure 9. The Member of the Legislative Assembly had made complaint against the acts and omissions on the part of the petitioner and suggested that the services of the petitioner be withdrawn and in his place respondent no. 5 be posted as Executive Officer as early as possible. On that letter it appears that the Minister, Urban Development, had passed on order that a note be put up in terms of the recommendation made by the Member, Legislative Assembly. It is the case of the petitioner that because of the aforesaid communication his services had been withdrawn by his parent department.

3. The other ground of attack, which has been made on behalf of the petitioner is that respondent no. 5, being an employee of the Zila Parishad, could not have been posted as Executive Officer in view of the provisions of section 37 of the Bihar & Orissa Municipal Act, 1922 (hereinafter referred to as 'the Act'). The relevant part of section 37 of the Act is as follows:–

37. Appointment of Executive Officers:–

(1) The State Government may appoint an Executive Officer in any Municipality.

(2) The State Government may create a cadre of Executive Officers and may prescribe rules for appointment, qualifications, control, leave, gratuity, pension, provident fund benefits and punishment of officers borne on that cadre and other Executive Officers.

Provided that till the creation of such cadre and the appointment of Executive Officers therefrom, the State Government may depute any suitable officer of Government to act as an executive Officer."

It was pointed out that in view of sub section (2) the State Government is to create a cadre of Executive Officers, but till the creation of such cadre "the State Government may depute any suitable Officer of the Government to act as the Executive Officer." As the respondent no. 5 is not an officer of the State Government in view of the proviso aforesaid, he could not have been appointed to act as the Executive Officer of the Municipality in question.

4. At the stage of admission itself affidavits have been filed on behalf of the respondents including respondent no. 5. It appears to be an admitted position that no cadre of Executive Officers has been created and, as such, the State Government has been deputing its officers from time to time to act as Executive Officers in different municipalities. It also does not appear to be in dispute that respondent no. 5 is not an officer of the State Government, he had been appointed as an Assistant Engineer by the Zila Parishad, Samastipur. If he is in employ