JUDGMENT

G. C. Mathur, J. - Respondent No. 3 (Daya Ram Verma) was appointed a temporary clerk in the Eduucation Department of the Zila Parishad, Faizabad, on December 26, 1962, in the leave vacancy of one Ram Kishore. After Ram Kishore rejoined duties on February 28, 1963, Daya Ram Verma was appointed in temporary capacity in a vacancy caused by the suspension of one amuna Chaubey from March 1963 On November 4, 1963, the nominated Adhyaksha confirmed the appointment of respondent No. 3. hereafter there were elections and he elected Adhyaksha took charge the office from the nominated Adhyaksha. On December 18, 1963, he elected Adhyaksha passed an or that the order of the nominated Adhyaksha, confirming Daya Ram Verma, was void, being against the revisions of Sec. 43(3) of the Zila Pairishads Act, that as such he may continue as a purely temporary and on the post on which he was originally appointed and that, after the expiry of the period for which he had been temporarily appointed, he would cease to function if he was not confirmed under Sec. 43(3) of the Act or removed before that period. Against this order Daya Ram Verma filed an appeal before the Commissioner, Faizabad Division. By an order dated October 9, 1964, the Commissioner allowed the appeal, set aside the order of the elected Adhyaksha dated December 18, 1963, and directed that Daya Ram Verma be reinstated forthwith and treated as having been confirmed with effect from November 4, 1963. The Zila Parishad thereupon filed this writ petition, challenging the order of the Commissioner as being wholly without jurisdiction.

2. Before coming to the points in controversy between the parties, it is necessary to refer to the position and powers of the nominated Adhyaksha. The U.P. Kshettra Samitis and Zila Parishads Adhiniyam, 1961, was enacted in 1961 and, admittedly came into force on November 30,1961. Paragraphs 4 to 11 of the writ petition state the position as it progressively developed after the enactment of this Act till the setting up of the Zila Parishads. The contents of these paragraphs have been admitted in the counter-affidavit filed on behalf of respondent No. 2 as well as in the counter-affidavit filed by Daya Ram Verma. From these paragraphs it appears that the Kshettra samitis constituted under the Zila Parishads Act began functioning under the Zila Ptrishads Act from July 18,1962, that from July 18, 1962, under the provisions of Sec. 271 of the Act, the Antarim Zila Parishad and the Adhyaksha of the Antarim Zila Parishad were to perform the duties of the Zila Parishad and the Adhyaksha of the Zila Parishad under the Zila Parishads Act, that the Zila Parishads were established from June 30, 1963, and that the nominated Adhyaksha was appointed by a notification dated June 29, 1963. It is, therefore, an admitted fact that,on November 4, 1963, when the nominated Adhyaksha passed the order of confirmation of Daya Ram Verma, he was exercising powers of the Adhyaksha under the Zila Parishads Act.

3. Two submissions have been made by Sri S.C. Khare on behalf of the petitioner: The first is that no appeal lay against the order of the Adhyaksha to the Commissioner and the order of the Commissioner is without jurisdiction. The second contention is that the order of confirmation, which really amounted to a permanent appointment by the nominated Adhyaksha, was made in violation of the provisions of sub-Sec. (3) of Sec. 43 of the Act and as such the order was void and was properly so treated by the elected Adhyaksha. I will deal with these contentions in this order.

4. Shri Khare has stated that there is no provision in the Act providing for any appeal against the order of the Adhyaksha, setting aside a previous order of the nominated Adhyaksha. Sri Prakash Gupta appearing for Daya Ram Verma contended that the right of appeal was conferred by the proviso to sub-Sec. (3) of Sec. 43 and also by the proviso to Cl. (b) of sub-Sec. (2) of Sec. 46. Sub-Sec. (3) of Sec. 43 reads