JUDGMENT By the Court.—Aggrieved by the judgment dated 31.7.1997 of Hon’ble Single Judge dismissing the Writ Petition No. 13609 of 1981 the petitioner-appellant (hereinafter referred to as the “petitioner”) has filed this intra Court appeal under the Rules of the Court. 2. That facts in brief giving rise to the present dispute are that the post of Revenue Inspector in the scale of 195-300 was lying vacant at Nagar Palika, Saharanpur due to the death of one Sri Jagdish Prasad who was working on the said post. The Officer In-charge, Nagar Palika decided to fill in the post by direct recruitment. It appears that a requisition sent to Employment Exchange, Saharanpur on 15.9.1980 inviting names for making selection on the post of Revenue Inspector and fixing 29.9.1980 for interview. The Employment Exchange did not make any recommendation. On 29.9.1980 an office note was put up before the Officer In-charge, Nagar Palika, Saharanpur that “the employment exchange has not made any recommendation pursuant to the requisition dated 15.9.1980 and nobody appeared for interview on 29.9.1980 which was the date fixed for interview, since the post was lying vacant since long and, therefore, some of the applications which has directly been received in the office, if permitted be processed with and the applicants be directed to appear for interview”. 3. The Officer In-charge approved the said office note on 30.9.1980 and fixed 6.10.1980 for interview of the candidates who had directly submitted their applications before the Nagar Palika. An office note was again submitted by the selection committee consisting of Officer In-charge, Executive Officer and Tax Superintendent on 8.10.1980 stating that interview held on 6.10.1980 and 8.10.1980 wherein the candidates who were working in Nagar Palika as well as outsiders appeared and after assessing their performance a merit list of three candidates, wherein the petitioner was at serial No. 1, was prepared and recommended for appointment. Pursuant to that recommendation, an appointment letter was issued on 8.10.1980 itself by the Officer In-charge appointing the petitioner on the post of Revenue Inspector in the pay scale of Rs. 195-300 on probation for one year. The Officer In-charge thereafter confirmed petitioner vide order dated 7.10.1981 on completion of one year service. Pursuant to that recommendation, an appointment letter was issued on 8.10.1980 itself by the Officer In-charge appointing the petitioner on the post of Revenue Inspector in the pay scale of Rs. 195-300 on probation for one year. The Officer In-charge thereafter confirmed petitioner vide order dated 7.10.1981 on completion of one year service. It appears that in the meantime a complaint was made by one Sri Sohan Lal working as Revenue Collection Assistant and Sri Anand Kumar working as Clerk vide representations dated 20.10.1980 and 5.12.1980 respectively complaining that the petitioner was illegally appointed without following the procedure prescribed under the rules whereupon the matter was enquired by the Commissioner, Meerut Division, Meerut and he held that the appointment of petitioner was irregular having not been made in compliance of the procedure prescribed therein and accordingly cancelled the same. The Nagar Palika, Saharanpur was directed to make fresh appointment in accordance with law. Aggrieved by the order dated 2.10.1981 the petitioner preferred Writ Petition No. 13609 of 1981 wherein this Court vide order dated 5.11.1981 stayed operation of the order dated 1.12.1981 and consequently the petitioner continued in service. The aforesaid writ petition has ultimately been dismissed by Hon’ble Single Judge vide judgment impugned in this appeal. 4. Learned counsel for the petitioner contended that the Commissioner in the impugned order dated 2.10.1981 held the appointment of petitioner being irregular for the reason that neither his name was recommended by the employment exchange nor prior approval of the State Government before making such appointment was obtained. He submitted that the aforesaid irregularities were curable and the Hon’ble Single Judge has erred in law in observing that the appointment itself was illegal and, therefore, was rightly set aside by the Commissioner. He said that the Commissioner did not find the appointment of petitioner to be illegal but the Hon’ble Single has read something in the order of Commissioner which was not there so as to non suit him. He also submitted that in the absence of any statutory provisions providing for appointment on the post of Revenue Inspector, it was open to the Nagar Palika, Saharanpur to make recruitment by receiving applications directly after placing the information regarding vacancy on the notice board and inviting applications from the prospective candidates. He also submitted that in the absence of any statutory provisions providing for appointment on the post of Revenue Inspector, it was open to the Nagar Palika, Saharanpur to make recruitment by receiving applications directly after placing the information regarding vacancy on the notice board and inviting applications from the prospective candidates. He contended that there was no requirement of publication of vacancy in the newspaper and, therefore, the Hon’ble Single Judge has erred in law in holding that the appointment of petitioner was bad and illegal. 5. Having given our serious thought to the matter, however, we do not find any force in the submission. The post which are not within the purview of Centralised Service Rules, and are in the category of Permanent Superior Staff were liable to be filled in by the President of concerned Municipality by virtue of Section 74 of the U.P. Municipalities Act, 1916 (hereinafter referred to as the “Act”). Section 74 as it stood in the year 1980 reads as under : ”74. Subject to any provisions to the contrary contained in Sections 57 to 73, servants on or drawing a monthly salary exceeding Rs. 50 or in a city Rs. 75 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 an appointment on a monthly salary of Rs. 250 or over in the case of cities and of Rs. 100 or over in other cases shall be subject to approval of the board.” 6. It cannot be disputed that in the absence of statutory rules the procedure for recruitment and condition of service can be governed by the executive orders. With respect to class III employees of Municipalities, the State Government issued an order on 4.5.1980 providing that if vacancies of class III employees are to be filled in by direct recruitment, the same shall be made through employment exchange and the procedure of filling of such vacancies as applicable to the Government Department should be adopted by local bodies. With respect to class III employees of Municipalities, the State Government issued an order on 4.5.1980 providing that if vacancies of class III employees are to be filled in by direct recruitment, the same shall be made through employment exchange and the procedure of filling of such vacancies as applicable to the Government Department should be adopted by local bodies. It also provided that the local bodies shall constitute a selection committee consisting of Chairman, Executive Officer and the Secretary of the Municipality. The selection shall be made on the basis of interview and if necessary by holding a competitive test. 7. A perusal of the aforesaid Government Order in so far as it provides that the procedure prescribed for filling in class III vacancies in Government Department shall be followed, brings in the procedure provided for recruitment of class III employees in the State Government that the Subordinate Officers Ministerial Staff (Direct Recruitment) Rules, 1975. The aforesaid rules provides that whenever a vacancy is to be filled on substantive post the same shall be advertised in newspaper besides sending requisition to the employment exchange and thereafter the selection shall be made. 8. Admittedly, in the case in hand the vacancy was never advertised in any of the newspaper. On the contrary, it appears that on 15.9.1980 a requisition sent to employment exchange inviting names of the candidates for consideration on the post of Revenue Inspector and fixing 29.9.1980 for interview. No names were recommended by employment exchange as reported in the office note dated 29.9.1980. At no point of time any application directly was invited by the Nagar Palika, Saharanpur from any candidate. A copy of the notice dated 15.9.1980 has been placed on record as Annexure-4 to the affidavit filed in support of stay application, alleging by the petitioner as that was a notice pasted on notice board inviting applications from public at large and it provided that the candidate must be registered with the employment exchange only. A copy of the notice dated 15.9.1980 has been placed on record as Annexure-4 to the affidavit filed in support of stay application, alleging by the petitioner as that was a notice pasted on notice board inviting applications from public at large and it provided that the candidate must be registered with the employment exchange only. From the office note dated 29.9.1980, a copy whereof has been placed on record as Annexure-8 to the affidavit filed in support of the stay application, it does not appear that any such notice was pasted on the notice board and on the contrary from the office note it appears that only a requisition was sent to Employment Exchange, Saharanpur pursuant whereto neither any recommendation was received therefrom nor any one appeared for interview on 29.9.1980. There is no reference to any notice pasted on notice board inviting direct applications from public at large. In what circumstances, the applications were directly received by the Nagar Palika, Saharanpur is not clear at all. Moreover, further discrepancy in the entire story is writ large, inasmuch as, Annexure-9 to the affidavit filed in support of the stay application is the order passed by the Officer In-charge on 30.9.1980 permitting selection of the candidates who have directly submitted applications fixing 6.10.1980 for interview showing that for the first time it was permitted on 30.9.1980; and 6.9.1980 was the date fixed for interview. The alleged note submitted by the selection committee which is also placed on record as Annexure-7 to the writ petition shows that the selection committee claims to have held interview on 6.10.1980 and 8.10.1980 and interviewed the outsider candidates as well as those who are already working in the Municipality and thereafter recommends three names namely, Tejpal Singh Verma, Sri Anand Kumar and Sri Chaman Lal. The Executive Officer said to have signed the said report on 8.10.1980 while the Tax Superintendent has signed the report on 5.10.1980, as is evident from the record. The appointment letter was issued to the petitioner on that very day i.e. 8.10.1980 under the signatures of Sri Sayad Amhad, Officer In-charge, Nagar Palika, Saharanpur. The Executive Officer said to have signed the said report on 8.10.1980 while the Tax Superintendent has signed the report on 5.10.1980, as is evident from the record. The appointment letter was issued to the petitioner on that very day i.e. 8.10.1980 under the signatures of Sri Sayad Amhad, Officer In-charge, Nagar Palika, Saharanpur. The said Officer In-charge sent a report to the Deputy Secretary, Nagar Vikas, U.P. Government, Lucknow sometimes in the year 1984 and, a perusal whereof shows that before making selection and appointment, the Municipality give wide publicity to the vacancy by adopting the process of Munadi in the city and also affixed notice on the notice board. On 8.10.1980 about 30 employees of Nagar Palika gave their applications claiming promotion. On 8.10.1980, interview was held from 11.00 am to 8.00 pm. Thereafter the appointment letter was issued to petitioner on 8.10.1980 itself and after completion of one year the petitioner was confirmed in the year 1981. If according to the said letter the interview took place between 11.00 am to 8.00 pm in the evening on 8.10.1980, there did not arise any occasion to issue appointment letter on that very day and we fail to understand as to what was such urgency that the appointment letter ought to have been prepared after 8.00 pm i.e. after holding selection proceedings for nine hours almost and to issue the same on the same date. Moreover, the alleged note of the selection committee shows that the interview took place for two days i.e. 6.10.1980 and 8.10.1980 but the said report shows that the interview took place only on 8.10.1980. Why the vacancy was not advertised has not been made clear and when the notice on notice board was pasted is also not clear. The post of Revenue Inspector being an important post and Municipality being statutory local body and a “State” under Article 12 of the Constitution of India, it was incumbent upon it to make appointment on the vacancy after complying all the constitutional requirement of giving equal opportunity to eligible candidates by proper advertisement of the vacancy. The Government Order dated 4.5.1980 clearly provides that the procedure prescribed in the rules applicable to Government Department is applicable which undisputedly provides for advertisement of vacancy in the newspapers having wide circulation so that all the eligible candidates may have an opportunity to apply and may be considered. The Government Order dated 4.5.1980 clearly provides that the procedure prescribed in the rules applicable to Government Department is applicable which undisputedly provides for advertisement of vacancy in the newspapers having wide circulation so that all the eligible candidates may have an opportunity to apply and may be considered. The manner in which the petitioner has been appointed, as has been discussed above, clearly shows that the Officer In-charge, Nagar Palika, Saharanpur made his appointment in a clandestine manner and the procedure prescribed for the said purpose was not observed. 9. Non publication of vacancy and non compliance of requirement of Article 16 of the Constitution of India makes the appointment illegal as held by Apex Court in Union Public Service Commission v. Girish Jayanti Lal Vaghela, 2006 (2) SCC 482 , wherein the Court observed that regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner, which would include inviting of applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. The same view has been taken in Secretary, State of Karnataka v. Uma Devi, 2006(4) SCC 1 . In National Fertilizers Ltd. v. Somvir Singh, 2006 (5) SCC 493 , the Court observed that the “State” within the meaning of Article 12 of the Constitution is bound to comply with the constitutional mandate under Articles 14 and 16. This Court has also followed the same view in Special Appeal No. 1317 of 2003 (M.D./Chief Engineer U.P. Jal Nigam and others v. Sri Nath Singh and others) decided on 22.12.2006. 10. In view thereof, we do not find any error, legal or factual, warranting interference in the judgment under appeal. The special appeal, thus, lacks merit and is accordingly dismissed. No costs. ————