Order: — The petitioner was appointed as a lower division clerk in the Polur Panchayat Union, North Arcot district, on 15th November, 1969, after having been interviewed and selected by the appointment committee constituted under section 53 of the Madras Panchayats Act, 1958 (hereinafter referred to as the Act). The post to which he was appointed was a permanent one but the appointment was made on a temporary basis. The Commissioner of the Panchayat, the second respondent, by proceedings dated 8th April 1970, ousted the petitioner from service with immediate effects This petition is filed to quash the said order. 2.The case of the respondents, the first respondent being the Revenue Divisional Officer, Tiruvannamalai, on. whose instructions the second respondent, the Commissioner, issued the impugned proceedings, is that the post should have been filled up by appointing a person belonging to scheduled caste or scheduled: tribe, according to the communal rotation, that the petitioner, not being a scheduled, caste or scheduled tribe member was not eligible to be appointed and that, therefore, when the mistake was noticed, the first respondent issued instructions, on the basis of which the second respondent passed the ousting order. It is also contended that inasmuch as the petitioner was appointed only on a. temporary basis, he is not entitled to question the ousting order. 3. The point that arises for decision in this case is whether the second respondent was competent to issue the impugned order. A consideration of this question calls for an examination of certain provisions of the Act. The word “Commissioner” is defined in section, 2 (5) as meaning the Commissioner of the Panchayat Union. Sections 44 (4) (e) and 45 deal with the appointment and ordinary and emergency powers of the Commissioner. Among the several duties which he has to discharge, one is to carry into effect the resolutions of the Panchayat Union Council. He is also required to control all the officers and servants of the Panchayat Union Council (section 44 (4) (e)). Section 45 confers certain emergency powers on the Commissioner. Section 61 confers power upon the Commissioner to punish officers and servants in the service of the Panchayat Union Council. Such powers include power of censure, fine, withholding of increment or promotion, suspension, removal and dismissal for any breach of the departmental rules or discipline or for carelessness, unfitness, neglect of duty or other misconduct. Section 61 confers power upon the Commissioner to punish officers and servants in the service of the Panchayat Union Council. Such powers include power of censure, fine, withholding of increment or promotion, suspension, removal and dismissal for any breach of the departmental rules or discipline or for carelessness, unfitness, neglect of duty or other misconduct. Section 53 provides for the constitution of an appointments committee for every panchayat union. Sub-section I (a) of that section reads: "There shall be an appointments committee for every panchayat union, which shall be composed of the chairman of the Panchayat Union Council, the Commissioner and one member elected annually by the Panchayat Union Council. The Chairman of the Panchayat Union Council shall be the chairman of the committee. Subject to the provisions of section 58, and to such rules as may be made by the Government in this behalf, appointments to all posts under the Panchayat Union Council the pay of which is debitable to the funds of the Panchayat Union Council, shall be made with the prior approval of the committee". Though this provision says that the appointment shall be made with the prior approval of the Appointments Committee there is no express provision conferring upon any authority the power to make the order of appointment, though it may be subject to the prior approval of the Appointments Committee. Section 58 confers power upon the Government to make rules regarding the authorities who may appoint officers and servants of the Panchayat and Panchayat Union Council other than Executive Officers and Commissioners. By virtue of this power, the Government have framed the Madras Panchayat Union Establishment Rules, 1965. Even those rules do not contain any provision regarding the authority who can appoint clerks, though the rules contain elaborate provisions in the matter of discipline, etc. The learned Assistant Government Pleader conceded that there is no express provision either in the Act or in the rules empowering the Commissioner to appoint clerks. But he, however cop-tended that by virtue of the power conferred on the Commissioner under section 44 (4) (c) of the Act, it may be possible to infer that the power of control conferred under that provision would include the power of appointment also. I am unable to accept this argument. Power of appointment is distinct from power of control. But he, however cop-tended that by virtue of the power conferred on the Commissioner under section 44 (4) (c) of the Act, it may be possible to infer that the power of control conferred under that provision would include the power of appointment also. I am unable to accept this argument. Power of appointment is distinct from power of control. Even a subordinate official can be conferred the power of control, though he may have no power of appointment of those over whom he may be conferred the power of control. The position is that there is no provision conferring power upon the Commissioner to appoint a clerk to the Union Council. 4. On behalf of the respondents, it was contended that though the petitioner was selected by the Appointments Committee, he was actually appointed by the Commissioner and that, therefore, the petitioner cannot be heard to say that he was not appointed by the Commissioner, but was appointed by the Appointments Committee. The proceedings relating to the appointment of the petitioner were drawn in the name of the Commissioner. The order refers to the selection of the petitioner by the Appointments Committee and it reads: "Thiru V. Govindaswami who has been deputed by the District Employment Exchange and selected by the Appointments Committee of this Panchayat Union is appointed to act as clerk temporarily on a pay of Rs. 90 in the scale of Rs. 90-3-120-2-140 plus usual D.A. of Rs. 98 p.m. vice in the existing vacancy. Placing reliance upon the aforesaid order it is contended on behalf of the respondents that the petitioner should be deemed to have been appointed only by the Commissioner. Though the order reads as if the petitioner was appointed by the Commissioner, we have got to construe the duties imposed upon the Commissioner under the Act. One of his duties is to carry into effect the resolutions of the Panchayat Union council. He is also directly responsible for the fulfilment of the purposes of the Act. The Appointments Committee is enjoined with the duty of giving approval to appointments to all posts under the Panchayat Union Council. When the Appointments Committee accords its approval, it is the duty of the Commissioner to carry into effect the approval. He is also directly responsible for the fulfilment of the purposes of the Act. The Appointments Committee is enjoined with the duty of giving approval to appointments to all posts under the Panchayat Union Council. When the Appointments Committee accords its approval, it is the duty of the Commissioner to carry into effect the approval. It is presumably in the discharge of such a duty that the Commissioner, in • the instant case, issued the order of appointment to the petitioner to give effect to the approval of the Appointments Committee. In the absence of an express power conferred upon the Commissioner to appoint a clerk, the order of appointment has to be construed as one having been passed by the Commissioner for the purpose of giving effect to the selection and approval by the Appointments Committee. The Commissioner does not possess any power to appoint, independently of the authority of the Appointments Committee. 5. It appears that the post to which the petitioner was appointed was to have been filled up by a person belonging to Scheduled Caste or Scheduled Tribe. The first respondent, Revenue Divisional Officer, claiming to exercise powers as an appellate authority, under rule 11 (2) (6) of the Madras Panchayat Union Establishment (Appointment and Punishment) Rules, 1965, issued proceedings to the second respondent, the Commissioner, on 4th April, 1970 pointing out that the post should have been filled up by selecting and appointing a person belonging to Scheduled Caste or Scheduled Tribe. He instructed the second respondent to advise the Appointments Committee to select and appoint a candidate belonging to Scheduled Caste or Scheduled Tribe in the vacancy by ousting the petitioner immediately. To give effect to these instructions, the second respondent issued the impugned order on 8th April, 1970 stating inter alia that the post should have been filled up by appointing a person belonging to Scheduled Caste or Scheduled Tribe, that the first respondent had ordered the ousting of the petitioner who is not a member of the Scheduled Caste or Scheduled Tribe and that, therefore, the petitioner was ousted from service with immediate effect. It is contended on behalf of the petitioner that though the second respondent purported to give effect to the instructions issued to him by the first respondent, he had no power to straightaway issue the impugned order without reference to the Appointments Committee which selected him and that, in the circumstances, the second respondent had no power to issue the impugned order independently of the Appointments Committee. It is, however, contended on behalf of the respondents that inasmuch as it was the Commissioner who issued the order of appointment, it was not incumbent upon him to refer the matter to the Appointments Committee and that he was himself competent to pass the impugned order. I am unable to accept the argument advanced on behalf of the respondents. I have already pointed out that the Commissioner has no power of appointment by himself. The proceeding by which the order of appointment of the petitioner was issued Was merely for the purpose of giving effect to the selection made by the Appointments Committee. The second respondent cannot claim to have exercised the power of termination of the petitioner’s services by virtue of the powers under section 61, for, that section deals with power of punishment in disciplinary matters only. The action taken against the petitioner was not by way of punishment. Therefore, it is not open to the second respondent to fall back upon section 61. 6. There being no power of appointment in the Commissioner and the order of appointment of the petitioner having been issued by the Commissioner only by way of giving effect to the selection made by the Appointments Committee, the proper course which the second respondent should have adopted was to place the matter before the Appointments Committee so that the Appointments Committee could revoke the selection of the petitioner, in which case, it would have been competent for the second respondent to issue necessary proceedings terminating the services of the petitioner. Perhaps, the Revenue Divisional Officer, first respondent, was conscious of this position when he issued instructions to the second respondent on 4th April, 1970. But unfortunately he did not give instructions in clear terms. Perhaps, the Revenue Divisional Officer, first respondent, was conscious of this position when he issued instructions to the second respondent on 4th April, 1970. But unfortunately he did not give instructions in clear terms. The instructions read as if the Appointments Committee should be approached to select and appoint a person belonging to Scheduled Caste or Scheduled Tribe without explicitly stating that such selection should be made by the Committee after the Committee itself set aside the selection of the petitioner already made. It is contended on behalf of the petitioner that if the Commissioner had referred the matter to the Appointments Committee, it would have been open to the Committee to shift the petitioner from the post to which he was appointed to some other vacancy, thereby preventing his ouster from service. It is not possible to say what the Committee would have dons if the matter had been referred to it. We do not know whether there was any vacancy also. But whatever it is, so far as the impugned order is concerned, it is clear that it is vitiated, inasmuch as the second respondent by himself had no power to issue the order of termination. 7. In the result, the writ petition isallowed and the impugned order is quashed. This order however, does not preclude the second respondent from placing the matter before the Appointments Committee and from taking suitable action for the purpose of filling up the post by selecting a person belonging to the Scheduled Caste or Scheduled Tribe. No order as to costs, and this case having been posted for being mentioned on Monday the 2nd and Tuesday the 3rd days of August, 1971 in the presence of Mr. R. Nadanasabapathy, Advocate for the petitioner and of Mr. S. Ramalingam, Assistant Government Pleader on behalf of the 1st respondent and the second respondent not appearing in person or by advocate and having stood over for consideration till this day the Court made the following Order: — This matter was re-posted at the request of the Assistant Government Pleader. R. Nadanasabapathy, Advocate for the petitioner and of Mr. S. Ramalingam, Assistant Government Pleader on behalf of the 1st respondent and the second respondent not appearing in person or by advocate and having stood over for consideration till this day the Court made the following Order: — This matter was re-posted at the request of the Assistant Government Pleader. In the order passed on 20th July, 1971 I have observed that the Madras Panchayat Union Establishment (Appointment and Punishment) Rules, 1965, do not contain any provisions regarding the authority who can appoint clerks, and that the Assistant Government Pleader conceded that there was no express provision either in the Act or in the rules empowering the Commissioner to appoint clerks. The Assistant Government Pleader stated that he made a mistake in making that statement at that time and as a matter of fact there are provisions dealing with the power of appointment of clerks. He, therefore, requested that the matter may be re-heard. I granted the request, and it is in these circumstances that it has come up for re-hearing. The Assistant Government Pleader brought to my notice the orders issued by the Government in G.O. Ms. 1941, R.D. and L.A., dated 13th July, 1961. That order is printed at pages 351 to 358 in the Guide Book on Panchayat Development in Madras State, Volume I. That is not a statutory rule. That deals with establishment of panchayat union offices, fixation of strength, recruitment etc. The relevant portion of that Government Order reads: “Appointments to the posts of lower division clerks, cashiers, typists and attenders can be made by the Collectors only prior to the constitution of the Panchayat Unions. If any vacancy exists in any of these posts subsequent to the constitution of the Unions, Collectors will not be empowered to make appointments against such vacancies. Then the power to make appointments to these posts which are paid out of Panchayat Union funds, will vest with the Commissioner of the Panchayat Union concerned.” Placing considerable reliance upon the foregoing passage, it is contended by the Assistant Government Pleader that from the above extract, it would be reasonable to hold that the Commissioner is invested with the power to appoint clerks. I am unable to accept this argument. I am unable to accept this argument. The passage occurs in an executive instruction, and it cannot be contended that it is a rule framed under section 58 of the Act under which the Government have no doubt power to make rules regarding the authorities who may appoint the officers and servants of Panchayats and Panchayat Union Councils. The prescribed procedure under section 199 with regard to the making of rules, notifications etc., has not been followed. Therefore, the aforesaid Government Order, has no statutory force. 9. The Assistant Government Pleader next drew my attention to rule 21 of the Madras Panchayat Union Establishment (Appointment and Punishment) Rules, 1964, and contended that the appointment of the petitioner would fall under the rule. To appreciate this argument, the relevant portion of that rule may be noted: “21. Temporary appointments: — (i) Notwithstanding anything contained in these rules or in any other rules, where it is necessary in the public interest or for administrative reasons to fill immediately a vacancy in the post and there would be delay in making such appointment in accordance with these rules or any other rules governing such appointment, the Commissioner may, for reasons to be clearly recorded in writing, temporarily appoint a person otherwise than in accordance with the said rules.” (provisos omitted). The question is whether the appointment of the petitioner was made by the second respondent by virtue of the aforesaid provision. At the outset it may be pointed out that the second respondent has not chosen to file a counter-affidavit stating that it is only by virtue of the said provisions that he appointed the petitioner. Even the counter-affidavit filed by the first respondent does not refer to this provision. It is baldly alleged in his counter affidavit that the appointment of the petitioner was temporary. No doubt, in the order of appointment, it was stated that the appointment was made purely on a temporary basis and that the appointment would not confer any right to future appointment. The power to make temporary appointment under rule 21 would arise: (1) where it is necessary in the public interest or for administrative reasons to fill up the vacancy immediately and (2) if there would be delay in making such appointment in accordance with the the rules or any other rules governing such appointment. The power to make temporary appointment under rule 21 would arise: (1) where it is necessary in the public interest or for administrative reasons to fill up the vacancy immediately and (2) if there would be delay in making such appointment in accordance with the the rules or any other rules governing such appointment. If these two conditions are satisfied, then the Commissioner can make the temporary appointment. But he is required to record clearly in writing the reasons for making the temporary appointment. None of these conditions is satisfied in the instant case. It is not as though the vacancy arose requiring the immediate filling up for administrative reasons or in public interest. It is not as though the vacancy arose requiring the immediate filling up for administrative reasons or in public interest. It is also not the case that delay was apprehended in making regular appointment and that, therefore, the petitioner was appointed. Far from these conditions being satisfied, the facts of this case show that the appointment was made on a regular basis, though in the actual order of appointment issued to the petitioner it was stated that the appointment was purely temporary. The Commissioner issued a requisition to the Employment Exchange to send candidates for selection. Column 4 of the requisition dealing with the number of vacancies contains two clauses. The first clause requires to be stated whether the vacancy is regular. The second clause requires to be stated whether the vacancy is temporary. Against these clauses, the pro forma stated that the vacancy was regular. Nowhere did the second respondent record in writing that the appointment was temporary and was being made in public interest or for administrative reasons to fill up the vacancy immediately. The fourth proviso to rule 21 also says that the appointment under the rule shall not exceed one year at a time. Nowhere in the file it is indicated that the appointment was not to exceed one year. Having regard to these circumstances, it is rightly contended on behalf of the petitioner that the petitioner’s appointment cannot be brought within the scope of rule 21. 10. Nowhere in the file it is indicated that the appointment was not to exceed one year. Having regard to these circumstances, it is rightly contended on behalf of the petitioner that the petitioner’s appointment cannot be brought within the scope of rule 21. 10. The Assistant Government Pleader contended that when the requisition was sent to the Employment Exchange to send up a list of candidates, the Commissioner explicitly stated that the hands required should be members belonging to Scheduled Caste or Scheduled Tribe, that the President fraudulently altered that portion of the requisition with a view to benefit the petitioner and that, therefore, this Court should not lend help to the continuance of the petitioner in service. No doubt, in the requisition sent to the Employment Exchange, we find the word “S. C., S. T. candidate is required”. But these words are scored out and they are substituted by the words “persons with previous experience preferred”. It is wrongly alleged in the counter affidavit filed on behalf of the first respondent as if the President had substituted the word “open competition”. The Employment Exchange accordingly sent up a list of nine names. In the list, the name of the petitioner finds the first place. Against his name, the letters B. G. are found presumably meaning Backward Glass. Against the names of six other candidates, similar letters are found. None of the candidates sent up was a member belonging to Scheduled Caste or Scheduled Tribe. It is not as if the selection of the petitioner was made by the Chairman and another member of the Committee without the knowledge of the Commissioner. The Commissioner, who had signed the requisition sent to the Employment Exchange, participated as a member of the Appointments Committee which selected the petitioner. At that time the Commissioner did not point out that the vacancy should be filled up by a member belonging to Scheduled Caste or Scheduled Tribe that he had made a requisition for sending the names only of such a candidate and that, therefore, the petitioner should not be selected. The circumstances under which the requisition is found corrected are not clear. But it cannot be contended that the selection of the petitioner was made without the knowledge of the Commissioner. 11. Mr. The circumstances under which the requisition is found corrected are not clear. But it cannot be contended that the selection of the petitioner was made without the knowledge of the Commissioner. 11. Mr. Nadanasabhapathi, Counsel for the petitioner raised a new ground regarding the competency of the first respondent who issued directions to the second respondent regarding the appointment of the petitioner. In the view which I take about the competency of the second respondent to pass the impugned order it is unnecessary to go into that question. 12. The result is the same position as the one which I have already pointed out, namely that there is no provision either in the Act or the rules empowering the second respondent to make the appoinment in question. The selection of the petitioner having been made by the Appointments Committee the second respondent having merely given effect to the selection, it was necessary on the part of the second respondent to have placed the matter before the Appointments Committee before terminating the services of the petitioner. This not having been done, I think the order which I have already passed should stand. V.M.K. ------------ Writ allowed.