ORDER The petitioners have filed this writ application praying therein that the resolution passed by the Empowered Standing Committee of Buxar Municipal Council on 08.09.2010 should be acted upon and the Executive Officer i.e. respondent no. 7 be removed from the post of the Executive Officer. In other words, the petitioners have sought to challenge the notification no. 4821 dated 19.08.2010 whereby the respondent no. 7 was posted as Executive Officer of the Buxar Municipal Council. 2. The short facts of the case are that respondent no. 7 was appointed as the Executive Officer on 19.08.2010. According to the affidavit filed on behalf of respondent no. 7, he had problems in joining the said post as the person Incharge was creating certain hurdles and finally, he was able to join the said post on 03.09.2010. On 08.09.2010, merely five days after his joining, a resolution was passed praying therein that the Executive Officer-respondent no. 7 be removed from the said post. 7, he had problems in joining the said post as the person Incharge was creating certain hurdles and finally, he was able to join the said post on 03.09.2010. On 08.09.2010, merely five days after his joining, a resolution was passed praying therein that the Executive Officer-respondent no. 7 be removed from the said post. The reasons mentioned in the resolution which is contained in Annexure-5, reads as follows:- <span class="Hfont">^^dk;Z lwphµdeZpkjh la?k }kjk izsf"kr dk;Z cfg"dkj vkosnu ij fopkj foe'kZA fu.kZ;µdeZpkjh la?k }kjk izsf"kr nksuksa i=kksa dk voyksdu fd;k x;kA u;s dk;Zikyd inkfèkdkjh Jh i`Foh jkt JhokLro ds lacaèk esa deZpkjh la?k ls nks&nks i=k izkIr gqvk gS ftls cksMZ dh cSBd esa i<+dj lquk;k x;kA ftlesa vkjksi yxk;k x;k gS fd fcuk fdlh izHkkj ds dk;kZy; esa vkdj deZpkfj;ksa dks èkedkrs ,oa Mjkrs gSaA ;s iwoZ esa cDlj esa inLFkkfir jgs gSa rFkk budk fØ;k&dyki ges'kk fooknhr jgk gSA fdlh Hkh iz'kk[kk esa dk;Z djus ds nkSjku deZpkfj;ksa ds lkFk vHknz O;ogkj djrs gksaxs ftlds izek.k ds rkSj ij orZeku esa fcuk izHkkj ds uxj ifj"kn dk;kZy; esa cSBuk ,oa deZpkfj;ksa dks vi'k"V cksyuk ,oa èkedh nsukA cDlj esa iqu% inLFkiuk esa budk fughr LokFkZ ,oa ea'kk gksus dh izcy laHkkouk izrhr gksrh gSA Jh vkyksd dqekj tks orZeku esa dk;Zikyd inkfèkdkjh gSa dk dk;Z larks"ktud ,oa uxj ifj"kn ghr esa gSA ,slh ifjfLFkfr esa ;ksX; ,oa deZB inkfèkdkjh dks gVkdj fooknhr ,oa vHknz O;ogkj okys inkfèkdkjh dks izHkkj nh tk;sxh rks uxj ifj"kn cksMZ] deZpkjh ,oa inkfèkdkjh ds chp oSeu';rk dh fLFkfr iSnk gks tk;sxh] ftlls dk;Z ckfèkr gks ldrk gSA ,slh ifjfLFkfr esa Jh i`Foh jkt JhokLro dks loZlEer ls uxj ifj"kn cksMZ] dk;Zikyd inkfèkdkjh ds :i esa Lohdkj ugha djrk gSA ljdkj ls vuqjksèk fd;k tkrk gS] fd Jh i`Foh jkt JhokLro dks fdlh nwljs fudk; ;k foHkkx esa inLFkkfir fd;k tk; ,oa ;ksX; ,oa deZB inkfèkdkjh Jh vkyksd dqekj] ftudk vfèklwpuk Hkh iwoZ esa ljdkj }kjk fd;k x;k gS] dks dk;Zikyd inkfèkdkjh ds in ij cus jgus fn;k tk; vFkok fdlh vU; inkfèkdkjh dks inLFkkfir fd;k tk;A lkFk gh lj ij bZn jetku dk ifo=k ioZ gS bl fcUnq ij cksMZ ds Lrj ls deZpkfj;ksa ls dk;Z djus gsrq dkiQh iz;kl fd;k x;k ysfdu Jh i`Foh jkt JhokLro ds usr`Ro esa deZpkjh drbZ dk;Z djus dks rS;kj ugha gSaA ,slh ifjfLFkfr esa loZlEer ls fu.kZ; fy;k x;k fd ftyk inkfèkdkjh egksn; ftyk dk loksZifr mPp inkfèkdkjh gSA vuqjksèk gS fd rRdky Jh vkyksd dqekj tks uxj fodkl ,oa vkokl foHkkx ls vfèklwfpr gSa] dk dk;Z Hkh ljkguh; ,oa larks"k tud] uxj ifj"kn ghr esa gSA izfØ;k ds rgr ljdkj dks lwfpr dj Jh vkyksd dqekj ls dk;Z djkus dk loZlEefr ls Jheku~ ls vkxzg fd;k tkrk gSA lEHko ugha gksus ij Jh JhokLro dks NksM+dj fdlh vU; inkfèkdkjh dks izfrfu;qDr djus dk vuqjksèk fd;k tkrk gSA deZpkjh la?k }kjk fn;s x;s vkosnu dks cksMZ ds le{k i<+s tkus ij O;fDr fo'ks"k ;Fkk Jherh yrk JhokLro dk uke vkus ij Jh fu;keqrqYyk iQjhnh] okMZ ik"kZn] okMZ uañ&13 }kjk vlgerh O;Dr dh xbZA rRi'pkr~ lkSgknZziw.kZ okrkoj.k esa cSBd lEiUu gqbZA** 3. In order to support the fact that respondent no. 7 joined the post of Executive Officer on 03.09.2010, Annexure B and B/1 have been annexed to the affidavit to show his joining. Before the respondent no. 7 joined to the said post as would be apparent from the resolution quoted above that Shri Alok Kumar was working as an Executive Officer in the Buxar Municipal Council. 4. Counsel for the petitioner has strenuously argued that the provisions of Section 20, 21, 22, 36 (i) (b) and (iv) as well as Section 41 of the Bihar Municipal Act, 2007 (hereinafter referred to as ‘the Act’) would indicate that the Executive Officer is essential and part of the Municipal Authorities who deal with the business of day-to-day functions of the Municipality as well as the functions defined under the Act. Section 20 of the Act provides that the Municipal Authorities would consists of in the case of a Class ‘A’ or Class ‘B’ or Class ‘C’ medium urban area (i) The Municipal Corporation, (ii) The Empowered Standing Committee, (iii) The Municipal Chairperson and (iv) the Municipal Executive Officer. Section 21 of the Act provides for the constitution of Empowered Standing Committee. Sub-clause (b) of Section 21 provides that in the case of a Class ‘A’ or Class ‘B‘ Municipal Council, the Municipal Chairperson, the Municipal Vice Chairperson, and five other Councillors shall constitute the Empowered Standing Committee. Section 22 of the Act provides that subject to the provisions of the Act and the Rules and the Regulations made thereunder, the executive power of a Municipality shall be exercised by the Empowered Standing Committee. Section 36 of the Act is relevant for the purpose of emphasizing the fact of sub-section (iv) (a) of Section 36 provides that “subject to the provisions of sub-section (2), appointments of officers referred to in sub-section (i) for different posts as may be specified by Regulations shall be- (a) by the State Government in consultation with the Empowered Standing Committee by notification from amongst the persons who are or have been in the service of that Government,. Sub-section (i) specifically mentions that the Executive Officer would be a member of the Municipal Council of the Nagar Parishad. Sub-section (i) specifically mentions that the Executive Officer would be a member of the Municipal Council of the Nagar Parishad. Section 41 of the Act deals with the appointment of officers of the State Government for Municipalities and reads as follows:- “Notwithstanding anything contained elsewhere in this Act, the State Government may appoint an officer of that Government possessing such qualifications as may be determined by it for a Municipal Corporation or class of Municipal councils or Nagar Panchayat as Municipal Executive Officer, Municipal Finance Officer, Municipal Engineer or Municipal Health Officer referred to in sub-section (1) of Section 36 or with such designation as the State Government may consider necessary, and in such manner, and on such terms and conditions of service, as may be determined by the State Government in this behalf. The expenditure on account of salaries and allowances of any such officer shall be borne by the State Government. Provided that the officer so appointed shall be under the administrative control of the Empowered Standing Committee and may be withdrawn by the State Government suo motu or if a resolution to that effect is passed by the Councillors at a meeting called for this purpose by a two third majority of the total number of Councillors holding office for the time being.” 5. Counsel for the petitioners relies heavily on the proviso to Section 41 of the Act to bring home his arguments that the State Government ought to remove the Executive Officer of the Municipality in view of the fact that there is a resolution passed by the Board at a meeting called for the purpose of withdrawing the persons so appointed by the State Government by a two third majority of the total number of Councillors holding office for the present. 6. Counsel for the petitioners submits that not only the State Government have to consult the Empowered Standing Committee before making an appointment of the Executive Officer in the Municipalities, but has given further power to the Councillors of the Municipalities to adjudge the officers so appointed and if they are dissatisfied with his functions etc. they, may by a resolution, make a prayer for his withdrawal from the post of an Executive Officer, Finance Officer, Municipal Engineer or Municipal Health Officer as provided under Section 36 (1) of the Act. 7. they, may by a resolution, make a prayer for his withdrawal from the post of an Executive Officer, Finance Officer, Municipal Engineer or Municipal Health Officer as provided under Section 36 (1) of the Act. 7. The question before this Court is whether the State Government should act upon the resolution of the Empowered Committee? 8. The counter affidavit on behalf of the State and on behalf of the respondent no. 7 indicates that respondent no. 7 had joined the post of the Executive Officer on 03.09.2010 and after five days of being posted as an Executive Officer, a resolution was passed praying therein to make appointment of a particular person. It has been stated in the affidavit of the State and the respondent no. 7 that the action of the Councillors is malafide and that they want to have a man who is in their control as an Executive Officer, rather than a person, who would be able to guide them effectively and ensure that the work of the Municipality is carried out effectively and honestly. It has been stated that in fact, the tenor of the resolution is such which clearly indicates that the Councillors are dissatisfied not because the respondent no. 7 was not performing his job in a diligent manner, but they prefer to have another man in his place. This aspect is further fortified by the fact that respondent no. 7 has hardly worked for five days as an Executive Officer. 9. In the facts aforesaid, it is incumbent on the State Government to consider the resolution and pass an appropriate order in accordance with law. 10. This writ application is allowed with the aforesaid observations. ?