V. Anbazhagan v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08.12.2010CORAM:THE HON’BLE MR. JUSTICE K.CHANDRUW.P.No.45168 of 2006(O.A.No.6894 of 2000)V.Anbazhagan.. PetitionerVs.

The State of Tamil Nadurep.by its Secretary to Government Revenue DepartmentSecretariat, Chennai 92. The District CollectorPerambalur District3.The Revenue Divisional OfficerUdayarpalayamPerambalur District .. Respondents Prayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of Certiorarified Mandamus calling for the records relating to the proceedings in Na.Ka.No.A1/863/96 dated29.8.2000, 29.4.2010 and 3.5.2010 of the Revenue DivisionalOfficer, Udayarpalayam, Perambalur District, the 3rd respondent herein and quash the same and to direct the respondents to issue orders permitting the petitioner to retire from the post of Village Administrative Officer on reaching the age ofsuperannuation on 30.4.2010 AN with all attendant benefits and to settle the retiral and pensionary and other benefits arising out of his service rendered. (Prayer amended as per order dated 8.12.2010 in M.P.No.1 of 2010)For Petitioner :: Mr.R.Muthukannu For Respondents :: Mr.R.Murali, G.A. https://hcservices.ecourts.gov.in/hcservices/

O R D E RThe petitioner originally filed O.A.No.6894 of 2000 before the Tribunal challenging the order dated 29.8.2000. By the said order, the 3rd respondent Revenue Divisional Officer, Udyarpalayam, Perambalur District dismissed the petitioner from service on the ground that on the date of appointment of the petitioner as aVillage Administrative Officer of Kodangudi Village, UdayarpalayamTaluk, he did not possess the necessary educational qualification and his appointment was irregular as the District Collector aswell as the Secretary of the Revenue Department had directed them to pass appropriate orders.

The Tribunal vide its order dated 18.9.2000 granted aninterim-stay. Subsequently the said order came to be continued without specifying any time limit by a further order dated12.9.2000. Though the Department filed M.A.No.4510 of 2001seeking to vacate the interim order, for the reasons best known, the Tribunal did not take up the application and allowed the stay to be continued.

On behalf of the respondents, a counter affidavit dated24.4.2000 was filed before the Tribunal.

In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P.No.45168 of2006. After the matter was listed before this Court, the respondents realizing that the petitioner was to retire from service on the basis of the normal course of age of superannuationon 30.4.2010, passed an order on 29.4.2010 once again placing the petitioner under suspension. Subsequently, cancelling the said order, another order dated 3.5.2010 was passed and it was stated that since the matter is pending before this Court, the petitioner was once again dismissed from service on the very same reason which was stated in the original order of removal. The petitioner aggrieved by the subsequent order had filed M.P.Nos. 1 and 2 of2010 seeking to challenge the subsequent order as well as permitting him to raise additional ground, which was granted by this Court today.

It is unnecessary to travel into the rival contentions interms of the view to be taken by this Court. It is suffice to state that the petitioner was working as a Village Munsiff in Pichanur Village. During 1990 the State Government by way of an Ordinance 10/1980 abolished the post of Part time Village Munsiff. https://hcservices.ecourts.gov.in/hcservices/ The said amendment came to be challenged before this Court as well as before the Supreme Court. The Supreme Court upheld the amendment but also gave a direction to the State Government to absorb such of those qualified persons in the full time post of Village Munsif (renamed as Village Administrative Officer).

The petitioner staked his claim for being considered for the said post. As he had educational qualification of being SSLCfailed in the old pattern having 11th Standard, he filed an application before the Tribunal being O.A.No.699 of 1994 for consideration of his case. Along with the Original Application, he also enclosed a letter of the Tamil Nadu Public ServiceCommission addressed to the Director of School Education, wherein clarification was issued that candidates, who appeared and failed in SSLC old pattern of regular schooling can be taken to have possession of the general educational qualification other than the qualification prescribed for entry into public service irrespective of the marks obtained by them. Though the Governmenthas frowned upon, it is found that the petitioner was given appointment order on the basis of the direction issued by the Tribunal. Then the District Revenue Officer, Tiruchirapalliallotted the petitioner to Ariyalur Division to be appointed as Village Administrative Officer vide proceedings dated 23.3.1995.

The petitioner was working as Athukurichi VillageAdministrative Officer by the consequential posting order given by the Revenue Divsional Officer dated 17.4.1995 under Rule 10(a)(i)of the General Rules. The petitioner also joined duty as VillageAdministrative Officer on 20.4.1995 and he has been continuing in the said post. His services were also regularised by the RevenueDivisional Officer on 29.11.1996. Subsequently, the DistrictRevenue Officer by order dated 28.2.1997 cancelled theregularisation and the Revenue Divisional Officer by the order dated 29.8.2000 directed the petitioner to be dismissed from service with immediate effect as per the orders of the Governmentdated 23.5.2000. It is against this dismissal, the petitioner moved the Tribunal and obtained an interim order. He continued to work on the strength of the interim order till the date of hissuperannuation, namely 30.4.2010.

Therefore, the only question to be decided in the presentWrit Petition is whether the order passed by the Governmentfollowed by the impugned order of the 3rd respondent is legally justified and constitutionally permissible.

On the grounds raised in the Original Application, elaborate arguments were addressed by referring to several https://hcservices.ecourts.gov.in/hcservices/ citations of this Court as well as the Supreme Court as to how the said order is invalid. It is suffice to indicate that in paragraph 6.4.d, right of hearing was emphasized by the petitioner. In the additional ground raised in M.P.No.2 of 2010,once again exception was taken for the retrospective dismissal order made by the respondents.

In the counter affidavit filed before the Tribunal, on behalf of the respondents, it was stated that the respondents have not followed any fair play and there is no violation of principles of natural justice as per the departmental proceedings. It is also claimed that the petitioner was not in possession of minimum general educational qualification and his name was considered only on the directions of the Tribunal and such consideration could have been done only when the petitioner had necessary qualification.

In the light of the rival contentions, it has to be seen whether the dismissal order is legally valid and constitutionally permissible. It is needless to state that the post of VillageAdministrative Officer belongs to a constituted service created under Article 309 of the Constitution and governed by the TamilNadu Civil Services (Discipline and Appeal) Rules. In the present case, subsequent to the direction issued by the Tribunal, the petitioner was regularly appointed and his service was also regularised by the competent authority. If at all, the respondents could have found out whether the petitioner was having minimum general educational qualification before acquiring anypermanency on the post. Having failed to do so and having allowed him to continue, they cannot suddenly wake up and pass the impugned order and that too on the basis of the instructions issued by the Government.

Under the circumstances, Mr.R.Muthukannu, learned counselfor the petitioner brought to the notice of this Court a recent judgment of the Supreme Court in Kamal Nayan Mishra vs. State of Madhya Pradesh and others reported in (2010) 2 SCC 169 and also referred to the following passage found in paragraphs 20 to 24:"20. The learned counsel for the respondents drew our attention to the instructions to the employees in the preamble to the attestation form and the undertaking contained in the verification certificate by the employee at the end of the attestation form, which puts him on notice that any false information could result in termination of his service without enquiry. It is contended that as the attestation form stated that an employee could be terminated without notice, if he https://hcservices.ecourts.gov.in/hcservices/ furnishes false information, the employee is estoppedfrom objecting to termination without notice.

The above passage cited by the learned counsel for the petitioner fully supports his case. When the petitioner having been appointed as regular Government servant has protection under Article 311(2) of the Constitution before any penalty is imposed on him, which are set out in the said Article. 14. Though the learned Government Advocate tried to bring judgments to state that if the initial appointment is invalid, then there is no further notice required but the case cited by the learned counsel also arose out of cancellation of appointment on the ground that the community certificate produced by the concerned individual was found to be false by the Committeeappointed by the Supreme Court pursuant to the judgment in MadhuriPatil Vs. Additional Commissioner, Tribal Development, AIR 1995SC 94, wherein the Supreme Court directed the State LevelCommittee to go into the veracity of the claim made by the persons relating to the Community Certificate and therefore the SupremeCourt itself directed the State Level Committee while cancelling the Community Certificate, need not issue further notice to the Government servant, who secured entry with the bogus caste's https://hcservices.ecourts.gov.in/hcservices/ Certificate. It is not clear as to how those judgment has any relevance to the case on hand.

It is also relevant to refer to another judgment of the Supreme Court in Rajasthan State Road Transport Corporation and another vs. Bal Mukund Bairwa (2) reported in (2009) 4 SCC 299. In the said judgment, in paragraphs 34 and 35, the Supreme Courtheld as follows: "34. The appellant, as noticed hereinbefore, is State within the meaning of Article 12 of the Constitution. If an act on its part is found to be wholly unreasonable or arbitrary, the same would beviolative of Article 14 of the Constitution of India. In certain situations, even gross violation of the principles of natural justice has been held to come within the ambit of Article 14 (See also Satyavir Singhv. Union of India, DTC v. Mazdoor Congress, Union of India v. Tulsiram Patel and Central Inland WaterTransport Corprn. Ltd. v. Brojo Nath Ganguly).35. Any order passed in violation of the principles of natural justice save and except certain contingencies of cases, would be a nullity. In A.R.Antulay this Courtheld: ( SCC p.660 para 55)"55. .. No prejudice need be proved for enforcing the fundamental rights. Violationof a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity. "

In the light of the above, the Writ Petition stands allowed and the impugned order stands set aside. No costs. However, allowing of the Writ Petition does not mean that the petitioner can escape from the scrutiny of the Government with reference to his qualifications based on the Certificatesproduced at the time of entry. All that this Court has directed for conducting an enquiry concerning with the principles of natural justice under Article 311(2) of the Constitution read with statutory Rules framed under Article 309. The petitioner cannot take the defence that since he had reached the age ofsuperannuation on 30.4.2010 that no further proceedings can be initiated. In fact realizing the said defense that may be taken, the respondents have passed the order on 30.4.2010 once again dismissing the petitioner with retrospective effect. Though said order is quashed, it is hereby directed that the respondents are permitted to continue the enquiry in accordance with law and the petitioner cannot take the defense when there is no order passed https://hcservices.ecourts.gov.in/hcservices/ by the Government to continue the proceedings since the case has been pending before this court for the last ten years and the petitioner had worked only on the basis of the interim order. Itis not open to the petitioner to raise such a defense at any point of time. With this observation, the Writ Petition stands allowed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar.ajrTo1.The Secretary to Government of Tamilnadu Revenue DepartmentSecretariat, Chennai 92. The District CollectorPerambalur District3.The Revenue Divisional OfficerUdayarpalayamPerambalur District1 cc to Government Pleader, Sr. 882501 cc to Mr.R. Muthukkannu, Advocate, Sr. 87839W.P.No.45168 of 2006NG (CO)kk 31/12