( 1 ) THIS reference has been made to resolve the conflict between two Division bench decisions of this Court reported in Narayan Keshav Dandekar v. Rule C. Rathi, AIR 1963 Madh Pra 17: 1963 MPLT 709 and Ras Bihari Pande v. Municipal Corporation, Jabalpur, 1966 MPLJ 426. The question for decision is whether the requirement of consultation with the State Public Service commission laid down by the second proviso to Sub-section (1) of Section 58 of the M. P. Municipal Corporation Act, 1956, is mandatory, so that an appointment purporting to be made in accordance with the power given by Subsection (1) of Section 58 without any such consultation is invalid. This question arises in the context of the validity of appointment of respondent No. 2 S. K. Chaudhary as City Engineer of the Municipal Corporation. Jabalpur.

( 2 ) THE earlier Division Bench deciding Dandekar's case (AIR 1963 Madh Pra 17) (supra) held that this requirement of consultation with the State Public Service commission is mandatory and such an appointment made by the Corporation without consultation with the Commission was invalid. On the other hand, the latter Division Bench deciding Panda's case (1966 MPLJ 426) (supra) took the view that the failure to consult the State Public Service Commission in making such an appointment did not render the appointment invalid, the status of the state Public Service Commission being merely advisory. It may be mentioned that no reference is made to Bandekar's case in this latter decision which means that the earlier Division Bench decision in Dandekar's case was apparently not brought to the notice of the subsequent Division Bench. This is how the conflict arises which we are called upon to resolve.

( 3 ) SECTION 58 of the M. P. Municipal Corporation Act, 1956, reads as under:--

"58. Appointment and salary of City Engineer, etc. (1) Subject to the provisions of this Act the Corporation shall appoint a City Engineer, a Health Officer, a Revenue Officer, a Municipal secretary and a Municipal Accountant and may appoint a Deputy municipal Commissioner and such other officers and servants as are necessary for the efficient carrying out of the purposes of this Act and may assign to them such duties and pay them such salaries and allowances, pensions and gratuities and make on their behalf such payments to the provident or annuity funds as the Corporation may determine by bye-laws made in this behalf under Section 427: provided that:-- (1) the power of appointing any person on a municipal post which carries a maximum monthly salary exceeding 150 rupees shall vest in the Standing Committee; (2) the power of appointing any person on a municipal post which carries a maximum monthly salary not exceeding 150 rupees shall vest in the Commissioner, (3) any appointment made within his power by the commissioner shall be reported for its information to the standing Committee: provided further that the appointment to be made by the Standing Committee shall be so made in consultation with State Public Service Commission in the manner prescribed: provided also that in case of any difference of opinion between the standing Committee and the State public Service Commission, the matter shall be laid before the Corporation. If the Corporation agrees with the State public Service Commission, the appointment shall be made accordingly. In other cases, a reference shall be made by the Corporation to the government whose decision shall be final. (2) Notwithstanding anything contained in Sub-section (1), the standing Committee may make appointments for a period not exceeding six months without consultation with the State Public service Commission. "

( 4 ) SUB-SECTION (2) of Section 58 enables the making of appointment for a period not exceeding six months without consultation with the State Public service Commission. Obviously, these are intended to be temporary appointments. Sub-section (1) provides for the general power of appointment and specifies