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6. When these two decisions were cited in the above petitions, there being apparent inconsistency between the two decisions, the Benches hearing these petitions have referred the question for resolving the conflict.

7. We have heard learned counsel for the parties.

8. It is clearly perceptible from the decision in Jagmohanlal's case that the said decision did not proceed on construction of the Madhya Pradesh State Municipal Service (Executive) Rules, 1973, and it was in the peculiar facts of the said case that the contention that the petitioner had become a Government Servant by virtue of his appointment under Section 89 of the Act, fundamental rules had become applicable in his case and he could not, therefore, be retired from service before attaining the age as prescribed in the said rules that the Division Bench was of the opinion that even if it was assumed that till constitution of the State Municipal Service he had continued to be a Municipal Employees, he could not claim advantage of the resolution of the Municipal Committee, Burhanpur as the Government in exercise of the power conferred by Sub-section (1) of Section 355 read with Section 95 of the Act, had framed M.P. Municipal Employees (Recruitment and Conditions of Service) Rules, 1968 and after these Rules had been brought in force, the petitioner had in any case ceased to be governed by the fundamental rules. It was, in particular, pointed out that Rule 23 of the 1968 Rules specifically provided that the age of superannuation for Municipal Employees other than Class IV employees shall be 55 years and in view of this provision, the petitioner was rightly retired on attaining the age of 55 years. It is, therefore, clear that the judgment in Jagmohanlal's case has proceeded on the premises that he had not become a member of the State Municipal Service and that his case was, therefore, governed by the provisions of the 1968 Rules which provided for retirement on attaining the age of 55 years. We have, therefore, to examine whether the position or status of the Chief Municipal Officer, who is a member of the State Municipal Service (Executive) as contemplated in Section 86 (1) (a), is that of a servant of the State Government or that he is a Municipal employee. As pointed out above, Sub-section (2) of Section 86 empowers the State Government to make Rules in respect of recruitment, qualification, appointment, promotion, leave, scale of pay, all allowances by whatever name called, loans, pension, gratuity, annuity, compassionate fund, provident fund, dismissal, removal, conduct, departmental punishment, appeals and other service conditions of the members of the State Municipal Service. The State Government in exercise of the said power has made the Madhya Pradesh State Municipal Service (Executive) Rules, 1973. Rule 2 (f) defines member of the service to mean a member of the State Municipal Service (Executive) and Rule 2 (1) "service" as meaning the Municipal Service for the State constituted under Sub-section (1) of Section 86 of the Act. The mode of appointment is by direct recruitment and by promotion, both. Chapter-IV prescribes qualification and eligibility for appointment in the case of direct recruitment while Part V deals with procedure for direct recruitment. Rule 11 provides for the initial constitution of service and lays down that those Municipal Officers who were continuously working as Chief Municipal Officers at the time of commencement of the Rules, shall be deemed to have been appointed to the service. We may pause here to point out that in Jagmohanlal's case since the petitioner had retired w.e.f. 10-5-1972 much before the State Municipal Service (Executive) Rules (hereinafter referred to as the 'Rules') were framed by the State Government, there was no occasion for the Division Bench in that case to consider the impact of Rule 11 by which persons appointed pending constitution of the service were also included as its members. The same is also true of the non-consideration of the specific provision contained in Rule 49 which makes the fundamental rules applicable to the Government servants of Madhya Pradesh to the members of the service in respect of regulation of pay, joining time, leave, provident fund, loan, security and travelling allowances. Since the question of considering the position of a person appointed under Section 89 of the Act pending constitution of the State Municipal Service could not have been considered in the light of the provisions contained in the Rules subsequently made by the State Government and the decision rests mainly on the position in the 1968 Rules which have specifically been excluded in the case of members of the service in the definition of Municipal Employee governed by the M.P. Municipal Employees (Recruitment and Conditions of Service) Rules, 1968, the said decision is even otherwise not of any help in construing the true position of a Chief Municipal Officer governed by 1973 Rules. We may here also point out that the definition of Municipal Employee contained in Rule 2 (e) of the 1968 Rules includes all persons appointed or taken on the cadre of Municipal Staff, other than a member of the State Municipal Service (Executive) which implies that the position of Chief Municipal Officer who is a member of the State Municipal Service (Executive) is to be examined only in the light of the provisions contained in the 1973 Rules with regard to recruitment, qualification, appointment, promotion, removal, conduct, departmental punishment etc. applicable in such cases.