JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Sri A.B. Singh, learned Counsel for the appellants and Sri H.R. Misra assisted by Sri Santosh Dwivedi, learned Counsel for the respondents. 2. This is an appeal against the judgment and order dated 15.6.2006 passed by an Hon’ble Single Judge, dismissing the writ petition of the appellants. We have permitted appellant No. 2 also to impugn the judgment of the learned Single Judge in his official capacity, as Executive Officer. 3. Brief facts necessary for deciding this appeal are : respondent No. 4 to the appeal, Haridwar Tiwari was working as Class-IV employee in the Nagar Panchayat, Chandauli. The disciplinary proceedings were initiated against the said Class-IV employee, and by an order dated 28.4.2006, respondent No. 4 was dismissed from service. Against the order passed by the Executive Officer, Nagar Panchayat, Chandauli, a representation was submitted to the Divisional Commissioner, who by an order dated 5.5.2006 entertained the representation against the said order and stayed the dismissal order passed by the Executive Officer dated 28.4.2006. The writ petition was filed by the appellant No. 2 challenging the order of the Divisional Commissioner. The learned Single Judge dismissed the writ petition. 4. It has been observed in the judgment that the Commissioner possesses the appellate power under Section 34 of the U.P. Nagar Palika Adhiniyam, 1916. Learned Single Judge has also observed that the appellate authority possesses power to grant interim reliefs. 5. Learned Counsel for the appellants challenging the order submitted that against the order passed by the Executive Officer, dismissing respondent No. 4 from service, the appeal lays to the President of Nagar Panchayat and the Divisional Commissioner was not an appellate authority, who could have exercised the power to stay the dismissal order. He further contends that Section 34 of the U.P. Municipalities Act, 1916, has no application in the present case. 6. Sri H.R. Misra, learned Counsel for the respondents has submitted that in the present case, the Commissioner is the appellate authority. He submits that the disciplinary proceedings were initiated against respondent No. 4 with the permission and approval of the President/Administrator of the Nagar Panchayat and also the charge-sheets were approved by him; hence the order passed by the Executive Officer, dismissing the respondent No. 4 from service, is for all purposes the order passed by the Administrator, and the appeal shall lie to the Commissioner. Sri Misra has also contended that this special appeal is not maintainable under Chapter VIII Rule 5 of the Allahabad High Court Rules, since the writ petition was against an appellate order. 7. We have considered the submissions and perused the records. 8. The issue, which has arisen in the present appeal, is as to whether the order passed by the Commissioner impugned in the writ petition can be said to be the order passed in exercise of appellate jurisdiction. Answer to this, shall dispose of both the submissions raised by Sri Misra. 9. Rules have been framed, namely, the U.P. Municipal Servants Appeal Rules, 1967, Rule-3 of which provides for appeal. Rule-3 of the U.P. Municipal Servants Appeal Rules, 1967 is quoted below : “3. Appeals.—Subject to the provisions of the Act, appeal against an order of punishment shall lie— (1) (i) to the President in a case in which the order of punishment is passed by a punishing authority other than the President under Section 76. (2) ..................................... (3) (ii) to the Commissioner of the Division in a case in which the order of punishment is passed by the punishing authority under Section 74 or by the President under Section 76.” 10. The present is the case of permanent inferior staff whose dismissal order has been passed by the Executive Officer in exercise of power under Section 76 of the U.P. Municipalities Act, 1916. In the present case, the appeal will lie to the President of the Nagar Panchayat in accordance with the Rule 3 (i), as quoted above. The appeal to the Divisional Commissioner under Rule 3 (ii) shall lie when the order of punishment is passed by the punishing authority under Section 74 or by the President under Section 76 of the Act, 1916. With regard to the punishment and dismissal of permanent superior staff, Section 74 of the Act is set out below: “74. The appeal to the Divisional Commissioner under Rule 3 (ii) shall lie when the order of punishment is passed by the punishing authority under Section 74 or by the President under Section 76 of the Act, 1916. With regard to the punishment and dismissal of permanent superior staff, Section 74 of the Act is set out below: “74. Appointment and dismissal of permanent superior staff.—Subject to the provision of Sections 57 to 73, servants on posts in the non-centralised services, carrying scale of pay equal to or higher than the lowest scale of pay admissible to the clerical staff, shall be appointed and may be dismissed, removed or otherwise punished, or the services of a probationer may be, terminated, by the President subject to the right of appeal, except in the case of the termination of the service of a probationer, to such authority within such time and in such manner as may be prescribed : Provided that appointment on the posts of Tax Superintendent, Assistant Tax Superintendent, Inspectors, Head Clerks, Sectional Head Clerks, Sectional Accountants, Doctors, Vaids, Hakim and Municipal Fire Station Officers, shall be subject to the approval of the Board." 11. The appeal being of permanent inferior staff, the punishing authority is to be in accordance with Section 76. The President can dismiss or punish an inferior permanent staff only when there is no Executive Officer. In the present case, the Executive Officer has proceeded and passed the dismissal order. 12. The submission of Sri Misra that since the President has granted permission to initiate the proceedings, the ultimate order is to be treated as the order of the President, cannot be accepted. 13. The appellate authority, who has been provided in Rule-3 has appellate power, merely because at some stage permission was granted by the said superior authority to initiate action, shall not denude the statutory power conferred by the Rules as the appellate authority. The order of the Executive Officer is on record, it does not even mention that the said order has been passed by the Administrator or has been approved by the Administrator. Thus, the order of the Executive Officer cannot be treated as the order of the President, so as to make it appealable to the Divisional Commissioner. The Divisional Commissioner being not the appellate authority, had no jurisdiction to entertain the representation and stay the dismissal order. 14. Thus, the order of the Executive Officer cannot be treated as the order of the President, so as to make it appealable to the Divisional Commissioner. The Divisional Commissioner being not the appellate authority, had no jurisdiction to entertain the representation and stay the dismissal order. 14. Section 34 of the U.P. Municipalities Act is a power of the Prescribed Authority or the District Magistrate to prohibit execution or further execution of a resolution or order of Municipal Board. The said power conferred to the prescribed authority is an original power with regard to the resolutions and orders passed by the Municipal Board. Section 34 has no application, when the punishment order has been passed by the punishing authority under the U.P. Municipal Servants Appeal Rules, 1967. 15. In view of the aforesaid, we set aside the order of the Divisional Commissioner staying the dismissal order, which was not passed in exercise of any appellate jurisdiction. There being statutory appeal provided to the President, the Commissioner was also not required to entertain the representation. 16. The order passed by the learned Single Judge as well as the order of the Divisional Commissioner dated 5.5.2006 are set aside. It is made clear that this order, shall not preclude the respondent from seeking his remedy under law against the order of the Executive Officer dated 28.4.2006. 17. The appeal as well as the writ petition are allowed. 18. If an appeal is filed within one month from today in accordance with the Rules, 1967, it will not be dismissed on the ground of delay. Appeal Allowed. ———