N.Prabhakaran Nair v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:07-01-2009CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIW.P.No.26901 of 2008and M.P.No.1 of 2008.....N.Prabhakaran Nair... Petitionervs.1. The State of Tamil Nadu rep. By its Secretary Revenue Department Fort St.George, Chennai 9.2. The Special Commissioner and Commissioner of Revenue Administration, Chepauk Chennai 5.3. The Revenue Divisional Officer Thuckalay, Kanyakumari District.4. The Tahsildar Kalkulam Kanyakumari District.... RespondentsWrit petition filed under Article 226 of the Constitution ofIndia praying for issuance of a Writ of Certiorarified Mandamus asstated therein.For petitioner: Mr. G.S.Thamby for Mr.S.Giridharan For respondents: Ms.Lita Srinivasan, Government Advocate ..ORDERThis writ petition is filed challenging the G.O.(D) No.466,dated 16.8.2007, a copy of which is said to have been furnished tothe petitioner on 23.9.2008, declaring the petitioner's probationfrom 30.3.2005 and the consequential order passed by the thirdrespondent, the Revenue Divisional Officer dated 16.9.2008 andfor a direction to declare the petitioner's probation and releaseall terminal benefits as per law. 2. The petitioner was appointed as a part-time VillageHeadman at Anducode village in Kanyakumari District on 1.6.1975.The appointment was originally based on the method prescribed https://hcservices.ecourts.gov.in/hcservices/ under the Tamil Nadu Village Officers Service Rules, 1970. As perthe said Rules, an applicant should have completed SSLC courseconducted by the Government and should have passed the SpecialTests prescribed. The said Rules were extended to KanyakumariDistrict on 15.11.1973. The petitioner, at the time of joiningservice, had completed B.A. Degree course with History as mainsubject, however, he could not pass all the papers in B.A. Degreeexaminations. By the Tamil Nadu Abolition of Posts of Part-timeVillage Officers Ordinance, 1980 (Tamil Nadu Ordinance 10/80)which became Tamil Nadu Act 3/81, the part-time Village Officersposts were abolished with a view to introduce whole-time VillageOfficers in charge of village administration. The said Act waschallenged by the part-time Village Officers who became jobless byvirtue of the Abolition Act in the Supreme Court. During thependency of the said case, a memorandum was filed in the Hon'bleSupreme Court by the Attorney General to the effect that theVillage Officers who possess minimum qualifications as requiredunder the Abolition Act, 3/1981, irrespective of their age, wouldbe screened by the Committee to be appointed by the Government andsuch persons need not make any application or appear for any testconducted by the Tamil Nadu Public Service Commission for the postof Village Administrative Officer and they will be treated as newappointees under the Act and governed by the Act and Rules framedthereunder and the remaining vacancies will be filled up by theTamil Nadu Public Service Commission. 2(a). The petitioner was qualified to be appointed as VillageAdministrative Officer under the Abolition Act and therefore, hewas appointed by the third respondent as Village AdministrativeOfficer on 8.8.1982 by selection by the screening committee. Thepetitioner has passed all the tests conducted in Tamil as persection 6 of the Act and complied with all other requirements andhis services were regularised as Village Administrative Officerin 1982. 2(b). Subsequently by G.O.Ms.No.362 dated 21.6.1988, theGovernment has brought the post of Village Administrative Officerby an amendment into Special Rules for Tamil Nadu MinisterialService and that was given effect from 1980. According to thepetitioner, he has adequate knowledge in Tamil and hiscorrespondence has been in Tamil language only and his incrementand annual benefits have been given till 1991. However, by acommunication dated 15.7.1999, the 4th respondent Tahsildar hascalled upon the petitioner to produce certificate to show that hehas passed Tamil language test. It was replied by the petitionerand in the meantime, he has also applied for exemption frompassing the said test. However, relying upon some of theproceedings of the first respondent, the third respondent hasissued the proceedings dated 16.10.1999 calling upon thepetitioner to show-cause as to why action should not be taken fornot passing the language test. 2(c). After receiving copies of the proceedings of the firstrespondent, the petitioner again applied for the grant ofexemption praying the authority to grant the same if necessary,after explaining in detail that all the tests were passed by the https://hcservices.ecourts.gov.in/hcservices/ petitioner in Tamil language only. The petitioner has alsoapproached the Tamil Nadu Administrative Tribunal by filingO.A.No.6011 of 2000 and interim stay was granted by the Tribunalwhich was extended and thereafter, it was transferred asW.P.No.35630 of 2005 to this Court. Since the Tribunal was notfunctioning, the petitioner moved the Madurai Bench of Madras HighCourt in W.P.(MD) No.2042 of 2004 for direction against therespondents to consider his representation dated 14.3.2004 andsuch direction was given by the Madurai Bench of this Court on16.10.2004 to consider the representation of the petitioner. 2(d). It was thereafter, the third respondent, RevenueDivisional Officer in his proceedings dated 3.11.2004 informed thepetitioner that in view of the Rules 12(A) & 12 (b) of the TamilNadu Government Servants General Rules, the petitioner could notbe given increments, selection grade and other allowances as hehas not completed his probation. By the time when suchcommunication was made by the third respondent in 2004, thepetitioner has served nearly for 30 years, both as part-timeVillage Officer for seven years and as full time VillageAdministrative Officer for 23 years. The petitioner, in thosecircumstances, has filed W.P.(MD) No.3731 of 2004 on the file ofthe Madurai Bench against the said order of the Revenue DivisionalOfficer and for direction to disburse annual increments includingawarding of selection grade and other attendant allowances andbenefits from 1991 onwards, without reference to Rules 12(A) and12(b) of the Tamil Nadu State and Subordinate Services GeneralRules. In the meantime, the petitioner attained his age ofsuperannuation on 31.3.2005 and was relieved from service,however, subject to the result of W.P.No.35630 of 2005.Subsequently, there was an amendment sought for by the petitionerin the writ petition for direction to declare the petitioner'sprobation without reference to Rules 12(A) and 12(b) of the abovesaid Rules. 3. After elaborate arguments, final order was passed on14.3.2006 in W.P.No.35630 of 2005 setting aside the show-causenotice issued by the third respondent dated 16.10.1999 withdirection to the respondents to grant exemption to the petitionerfrom passing departmental language test and to declare hisprobation and consequently to pay all terminal benefits.Following is the operative portion of the order:"Since the petitioner had already reached the age ofsuperannuation after serving for more than a period of 20years, I am of the opinion that if the matter is remittedback to the Government so as to consider hisrepresentation, basing on the recommendation of theauthorities, that will prolong the issue. Hence, theimpugned order is set aside for the reasons stated above.The respondents are directed to grant exemption to thepetitioner with regard to passing of the departmentallanguage test and to declare his probation, andconsequently, pay all the terminal benefits, to thepetitioner within a period of four months, from the date ofreceipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/

13. The writ petition is disposed of with the abovedirection. No order as to costs."4. In fact, as correctly pointed out by Mr.G.S.Thamby,learned counsel appearing for the petitioner, in the said order,this Court has elaborately discussed about the adequate knowledgeof the petitioner in Tamil and held that the denial of terminalbenefits and other benefits due to the petitioner isunjustifiable. Holding so, this Court, after relying upon thejudgment of the Supreme Court in Lila Dhar v. State of Rajasthanand others, (1981) 4 SCC 159, has given a positive direction togrant exemption after considering the circumstance that thepetitioner was allowed to retire. The relevant portion of thejudgement is as follows:"8. That apart, even as per the averment in thecounter also, the petitioner had passed all thedepartmental tests prescribed for the post of VillageAdministrative Officer only in the Tamil language, whichwill lead to the inference that the petitioner is havingadequate knowledge in the official language, namely, theTamil. That apart, if he did not possess adequateknowledge in Tamil, certainly, he could not havefunctioned as Village Administrative Officer for theperiod of nearly 21 years. After serving for a period of21 years, because of non-passing of the Tamil languagetest, his probation could not be declared. Consequently,even after retirement in the year 2003, the petitioneris not able to get terminal benefits. That apart,basing on the interim orders granted by the Tamil NaduAdministrative Tribunal, the petitioner was permitted tocontinue in service till he reaches the age ofsuperannuation. To say in other words, the petitionerhad completed 21 years of service as VillageAdministrative Officer and he had executed his work inhis capacity as Village Administrative Officer, withoutany complaint whatsoever from any quarter, with respectto any aspect. As such, non-passing of the TamilLanguage Test by the petitioner has not in any wayaffected the execution of his work as VillageAdministrative Officer. That apart, after allowing himto continue for a period of 21 years, and denying theterminal benefits and other things, only basing on thenon-passing of the Tamil Language Test, in my opinion, isunsustainable. 9. As rightly pointed out by the learned counselfor the petitioner, neither in his appointment order norin the Rules applicable to the said post, there is anywhisper that for appointment to the post, one should havepassed the Tamil Language Test and no condition has beenprescribed in his appointment order also to this effect.But, after the lapse of 11 years, the petitioner has beencalled upon to explain with regard to non-passing of thetest, i.e. prior to 4 years of his retirement. https://hcservices.ecourts.gov.in/hcservices/

10.According to the learned counsel for thepetitioner, as per the judgement reported in 1981 4 SCC159 (LILA DHAR V. STATE OF RAJASTHAN AND OTHERS), atpage No.164, in paragraph No.6, the Supreme Court heldthat to subject a person to a written examination on theeve of his retirement, in the event of failure in thewritten examination or negative results, will be, infact, an act of cruelty. Basing on this, the learnedcounsel has contended that allowing the petitioner tocontinue in service from 1982, and issuing the impugnednotice is in fact arbitrary and also prima facieillegal. That apart, since the petitioner had reachedthe age of superannuation without any complaint of anynature from any quarter and even in the counter affidavitfiled by the respondents also, no defect of any naturehas been pointed out, relating to the execution of hiswork, basing on the non-passing of the language test,namely, Tamil Part II, and as such, the impugned orderpassed by the third respondent will not be allowed tostand.11.The learned counsel for the petitioner furtherrelying on the judgement reported in 1988 2 SCC 602(A.R.ANTULAY V. R.S.NAYAK AND ANOTHER), at page No.672,in paragraph No.83, has contended that the power forrelaxation or power to exemption given in Rule 48 of theGeneral Rules is only for the Governor. Taking intoconsideration the extraordinary circumstances of thepetitioner, namely, his number of years of service asVillage Administrative Officer and also passing of therelevant test and other tests, exemption has to beordered by this Court, which has been prayed in this writpetition. "5. Based on the said order dated 14.3.2006, the petitionermade representation which was of no use and contempt applicationwas filed. When the contempt application was pending, copy of theimpugned G.O.No.466 dated 16.8.2007 was produced. The said ordercontains a clause declaring the petitioner's probation only from30.3.2005 instead of declaring the same from 1984 which thepetitioner claims to be entitled to. The third respondent hasalso ordered recovery of increments already paid to thepetitioner. The impugned order is challenged on various groundsincluding that the same is totally against the earlier orderpassed by this Court; that the denial of benefits for the servicerendered for 23 years and claiming recovery is illegal; that thedeclaration of probation of the petitioner with effect from30.3.2005 thereby depriving the petitioner of his service benefitsfor 23 years is totally against the principles of natural justiceand against the Rules. 6. In the counter affidavit filed by the 4threspondent it isonly reiterated that the petitioner has passed departmental testsas per Annexure 10 to Rule 8A of the Tamil Nadu MinisterialService Rules and has not passed second class language test inTamil as prescribed in Rules 12(A) and 12(b) of the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ State and Subordinate Service Rules. It is stated that while thepetitioner's service as Village Administrative Officer wasregularised from 1982, probation was not declared in respect ofthe petitioner and the petitioner retired from service on31.3.2005 and it was from that date, the petitioner's probationwas declared and benefits were directed to be given from31.3.2005 onwards. It is seen that the 4th respondent by hisletter dated 11.10.1990 has clearly stated that the petitioner hasadequate knowledge in Tamil and requested for relaxing theconditions. The said letter is as follows:"M/s.N.Prabhakaran Nair and J.Madhusoothanan who areworking as Village Administrative Officers at KalkulamZone. The declaration of completion of probation periodhas not been issued for the reason they have not passedTamil Language Test. These two Village AdministrativeOfficers speak fluently Tamil also write and read Tamil.They have passed all departmental test in Tamil only. I amalso enclosing the question papers for the test and copiesof the certificates. They were kept informed from time totime only when they passed the Second language test, theirprobation will be declared as completed. However, since,these persons passed all departmental test conducted inTamil and these persons having adequate knowledge ofTamil, orders can be passed relaxing the conditions. Theydid not apply to appear for Second class Tamil languagetest. As stated above in the reference letter cited, I amsubmitting herewith the special Test question paper andtheir Service Registers."7. As per the appointment order issued to the petitionerdated 8.8.1982, appointing him as Village Administrative Officerunder section 4 of the Tamil Nadu Abolition of Part-time VillageAdministrative Officers Act, 3/81, the petitioner's probationperiod would be completed in a period of two years withincontinuous period of three years and the appointment order doesnot contain any stipulation to the effect that the petitionershould pass Second Class Language Test in Tamil. It is seen thatwhile the writ petition was disposed of by this Court as narratedabove, apart from directing to grant exemption to the petitioner,this Court has referred to Rule 12A of the General Rules and givena finding which is positive in nature especially in paragraph-7,which is as follows:"7. Under Rule 12 A of the General Rules, a specificprovision has been made. That is, no person shall beeligible for appointment to any service by directrecruitment, unless he has an adequate knowledge ofofficial language, namely, Tamil. As per theexplanation to the said Rule, a person shall be deemedto have adequate knowledge of Tamil, if he had passedSecondary School Leaving Certificate Public examinationor its equivalent examination with Tamil as one of thelanguages. But, as far as the petitioner is concerned,he did the Secondary School Leaving Course in Malayalamlanguage. So, as per Rule 12A of the General Rules, the https://hcservices.ecourts.gov.in/hcservices/ petitioner did not possess the qualification relating toTamil language. But the purpose of this Rule is toenable the person to execute his work without anyhindrance with reference to language to be used inexecuting his official work. As far as the petitioneris concerned, as rightly contended by the learnedcounsel for the petitioner, there is no complaint atall and because of the non-passing of the Tamil languagetest, there was no hindrance or delay in executing hiswork as Village Administrative Officer. "8. That apart, inasmuch as the order of this Court dated14.3.2006 has become final, it is certainly not open to therespondents now to turn around to say that the declaration ofprobation to the petitioner would be given only from 31.3.2005viz., the date of his retirement. 9. The authorities are expected to follow the orders passedby the Courts and not to construe the orders in the manner whichwould please them, as it was held by S.Mohan,J. (as he then was)in M.Palani vs. The Director of Industries and Commerce and others( 1987 WLR 151 ), that is," The courts are here for every one, the lowest ofthe lowly as well as the highest of the high. No personcan construe an order of this Court in a manner thatwould please him and deny the benefit of the order ofstay. The administration tries to overreach the lawfulorders of this Court. It cannot be contended that theorder passed by this Court was only ex parte as wassought to be faintly argued. Ex parte orders areequally efficacious as final orders. I should expect abetter reasoning from the authorities while seeking toenforce law and not merely taking umbrage under affixingof the seal of the Revenue Divisional Officer or theDistrict Collector."10. On the facts of this case, apart from the categoricalfinding given by this Court which has to be necessarily followedby the respondents, especially on the factual assertion about thefluency of Tamil language on the part of the petitioner, theconcept of justice requires that exemption be granted to thepetitioner and the probation be declared from his original date ofappointment. The Supreme Court in Lily Thomas, etc. etc vs. Unionof India and others ( 2000 (3) L.W. 371 ) held that the Courtswould not allow miscarriage of justice and in such event, the samewould be rectified. The relevant portion of the judgement is asfollows:"7. ...... Law has to be bend before justice. If theCourt finds that the error pointed out in the reviewpetition was under a mistake and the earlier judgementwould not have been passed but for erroneous assumptionwhich in fact did not exist and its perpetration shallresult in miscarriage of justice nothing would precludethe Court from rectifying the error. ..... " https://hcservices.ecourts.gov.in/hcservices/

11. In such view of the matter, there is no reason for therespondents to declare the probation of the petitioner from31.3.2005, the date on which the petitioner was allowed to retire.It is also relevant to point out at this stage that the impugnedorder itself shows as if the power of exemption has been exercisedas per Rule 12A. When the exemption proposal was pending for along time as it was recommended by the Tahsildar much earlier, itis not known as to how the declaration of probation of thepetitioner on the date of his retirement will amount to exercisingthe powers of exemption especially after a direction was alreadygiven by this Court. 12. In view of the same, the impugned orders of the first andthird respondents are set aside with direction to the respondentsto declare the probation by granting exemption in respect ofpassing of Tamil language test and also to declare probation tothe petitioner from the date of original appointment order issuedto him on 8.8.1982 by applying Rules 8 and 9 as perG.O.Ms.No.2600, Revenue Department dated 18.11.1980 and passappropriate orders granting all benefits due to him and suchorders shall be passed within a period of 12 weeks from the dateof receipt of copy of this order. The writ petition is ordered accordingly. No costs.Connected miscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkhTo1. The Secretary State of Tamil Nadu Revenue Department Fort St.George, Chennai 9.2. The Special Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai 5.3. The Revenue Divisional Officer Thuckalay, Kanyakumari District.4. The Tahsildar Kalkulam, Kanyakumari District.1 cc To Mr.G.S.Tambi, Advocate, SR.5591 cc To The Government Pleader, SR.1056W.P.No.26901 of 2008RSY(CO)SRA(21/01/2009)