JUDGMENT

Jagdish Sahai, J. - These are two connected special appeals which arise in the circumstances mentioned below: Har Saran Dass the appellant in Sp. A. No. 178 of 1960 and Rashid Uddin the appellant in Sp. A. No. 179 of 1960 were employed as peons in the Municipal Board of Hapur (hereinafter referred to as the Board). The permanent Executive Officer of the Board was one Sri Agarwal. Early, in April 1958, he went on medical leave for a period of three months. There was some dispute as to on what date he handed over charge. According to one version it was on the 3rd of April, 1958, that he did so while according to the other it was on 7th April, 1958. He, however, extended his leave by a further period of three months, with the result that he was away from duty from the 3rd of April, 1958, to some date of October of the same year. Sri Mittal was the President of the Board at that time. He appointed Sri Oberoi, the Tax Superintendent, to officiate as Executive Officer. Sri Oberoi took over charge on the 7th of April, 1958, and handed it over to Sri Firasat Ali on the 26th of April, 1958 on the latter's being appointed as the Executive Officer by Sri Mittal. Sri Firasat Ali went on leave from 23rd of May 1958 to the 9th of June, 1958, and once again Sri Oberoi officiated under the orders of Mr. Mittal for this period. On the 10th of June, 1958 Sri Firasat Ali again took over charge of the office of the Executive Officer. On the 11th of September, 1958, the Board by an unanimous resolution appointed Sri Firasat Ali as the officiating Executive Officer in the leave vacancy of Sri Agarwal. The State Government also in due course approved the aforesaid arrangement made by the Board. On the 15th of April, 1958, a charge sheet was handed over to Rashid Uddin accusing him of misconduct in the discharge of his duties. After an enquiry had been made into the charges against him partly by Sri Oberoi and partly by Sri Firasat Ali he was dismissed from service by an order passed by the latter on the 7th of July, 1958, with effect from the 16th of March, 1958. His appeal against the order of dismissal to the President was also dismissed on the 21st of November, 1958. Har Saran Das was also charge sheeted for misconduct on the 8th of February 1958. Sri Oberoi conducted an enquiry and dismissed him on 5th of June, 1958. His appeal to the President was also dismissed on the 12th of December, 1958. The main ground on which the two petitions giving rise to these two Special Appeals were filed was that Sri Firasat Ali and Sri Oberoi were not duly appointed Executive Officers on the dates on which they passed the dismissal orders mentioned above, and therefore the said orders are void. The submission made by the learned counsel for the petitioners before the learned Single Judge was that the true import of Section 59 of the U.P. Municipalities Act (hereinafter referred to as the Act) is that the President can make an officiating appointment on the post of the Executive Officer if the vacancy in that office is not for a period of more than two months. The contention on behalf of the respondent was that whatever may be the period of the vacancy the President has the power to make an officiating appointment not lasting more than two months. In the present case Sri Mittal had gone on three months leave which he extended to six months. Therefore, the vacancy caused by his leave of absence from the very beginning was for a period of more than two months. The learned Single Judge rejected the contention of the learned counsel for the petitioners (now appellants before us) that the period of appointment was immaterial and what was relevant was the period of vacancy. Inasmuch as the learned Single Judge overruled this submission and as no other point was urged before him he dismissed both the petitions with costs on the 28th of November, 1958.

2. The question that was raised before the learned Single Judge has also been raised before us. In order to appr