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.1.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 therecords 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 respondentherein and quash the same and to direct the respondents to issueorders permitting the petitioner to retire from the post ofVillage Administrative Officer on reaching the age ofsuperannuation on 30.4.2010 AN with all attendant benefits and tosettle the retiral and pensionary and other benefits arising outof 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 beforethe Tribunal challenging the order dated 29.8.2000. By the saidorder, the 3rd respondent Revenue Divisional Officer, Udyarpalayam,Perambalur District dismissed the petitioner from service on theground that on the date of appointment of the petitioner as aVillage Administrative Officer of Kodangudi Village, UdayarpalayamTaluk, he did not possess the necessary educational qualificationand his appointment was irregular as the District Collector aswell as the Secretary of the Revenue Department had directed themto pass appropriate orders. 2. The Tribunal vide its order dated 18.9.2000 granted aninterim-stay. Subsequently the said order came to be continuedwithout 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 stayto be continued. 3. On behalf of the respondents, a counter affidavit dated24.4.2000 was filed before the Tribunal.4. In view of the abolition of the Tribunal, the matter stoodtransferred to this Court and was renumbered as W.P.No.45168 of2006. After the matter was listed before this Court, therespondents realizing that the petitioner was to retire fromservice on the basis of the normal course of age of superannuationon 30.4.2010, passed an order on 29.4.2010 once again placing thepetitioner under suspension. Subsequently, cancelling the saidorder, another order dated 3.5.2010 was passed and it was statedthat since the matter is pending before this Court, the petitionerwas once again dismissed from service on the very same reasonwhich was stated in the original order of removal. The petitioneraggrieved by the subsequent order had filed M.P.Nos. 1 and 2 of2010 seeking to challenge the subsequent order as well aspermitting him to raise additional ground, which was granted bythis Court today. 5. It is unnecessary to travel into the rival contentions interms of the view to be taken by this Court. It is suffice tostate that the petitioner was working as a Village Munsiff inPichanur Village. During 1990 the State Government by way of anOrdinance 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 wellas before the Supreme Court. The Supreme Court upheld theamendment but also gave a direction to the State Government toabsorb such of those qualified persons in the full time post ofVillage Munsif (renamed as Village Administrative Officer). 6. The petitioner staked his claim for being considered forthe said post. As he had educational qualification of being SSLCfailed in the old pattern having 11th Standard, he filed anapplication before the Tribunal being O.A.No.699 of 1994 forconsideration 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, whereinclarification was issued that candidates, who appeared and failedin SSLC old pattern of regular schooling can be taken to havepossession of the general educational qualification other than thequalification prescribed for entry into public serviceirrespective of the marks obtained by them. Though the Governmenthas frowned upon, it is found that the petitioner was givenappointment order on the basis of the direction issued by theTribunal. Then the District Revenue Officer, Tiruchirapalliallotted the petitioner to Ariyalur Division to be appointed asVillage Administrative Officer vide proceedings dated 23.3.1995.7. The petitioner was working as Athukurichi VillageAdministrative Officer by the consequential posting order given bythe 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 inthe 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 orderdated 29.8.2000 directed the petitioner to be dismissed fromservice with immediate effect as per the orders of the Governmentdated 23.5.2000. It is against this dismissal, the petitionermoved the Tribunal and obtained an interim order. He continued towork on the strength of the interim order till the date of hissuperannuation, namely 30.4.2010. 8. 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 legallyjustified and constitutionally permissible. 9. 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 thesaid order is invalid. It is suffice to indicate that inparagraph 6.4.d, right of hearing was emphasized by thepetitioner. In the additional ground raised in M.P.No.2 of 2010,once again exception was taken for the retrospective dismissalorder made by the respondents.10. In the counter affidavit filed before the Tribunal, onbehalf of the respondents, it was stated that the respondents havenot followed any fair play and there is no violation of principlesof natural justice as per the departmental proceedings. It isalso claimed that the petitioner was not in possession of minimumgeneral educational qualification and his name was considered onlyon the directions of the Tribunal and such consideration couldhave been done only when the petitioner had necessaryqualification. 11. In the light of the rival contentions, it has to be seenwhether the dismissal order is legally valid and constitutionallypermissible. It is needless to state that the post of VillageAdministrative Officer belongs to a constituted service createdunder Article 309 of the Constitution and governed by the TamilNadu Civil Services (Discipline and Appeal) Rules. In the presentcase, subsequent to the direction issued by the Tribunal, thepetitioner was regularly appointed and his service was alsoregularised by the competent authority. If at all, therespondents could have found out whether the petitioner was havingminimum general educational qualification before acquiring anypermanency on the post. Having failed to do so and havingallowed him to continue, they cannot suddenly wake up and pass theimpugned order and that too on the basis of the instructionsissued by the Government.12.Under the circumstances, Mr.R.Muthukannu, learned counselfor the petitioner brought to the notice of this Court a recentjudgment of the Supreme Court in Kamal Nayan Mishra vs. State ofMadhya Pradesh and others reported in (2010) 2 SCC 169 and alsoreferred to the following passage found in paragraphs 20 to 24:"20. The learned counsel for the respondents drewour attention to the instructions to the employees inthe preamble to the attestation form and the undertakingcontained in the verification certificate by theemployee at the end of the attestation form, which putshim on notice that any false information could result intermination of his service without enquiry. It iscontended that as the attestation form stated that anemployee 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 saidcontention may merit acceptance in the case of aprobationer, but not in the case of a confirmedgovernment servant.21. No term in the attestation form, nor anyconsent given by a government servant, can take away theconstitutional safeguard provided to a governmentservant under Article 311 of the Constitution.22. A seven-Judge Bench of this Court held in MotiRam Deka v. North East Frontier Railway, as followswhile negativing a contention that a person who entersservice by executing a contract containing a rulecontrary to Article 311, with open eyes, cannot bepermitted to challenge the validity of the said rule orthe contract."31. ... In our opinion, this approach may berelevant in dealing with purely commercial casesgoverned by rules of contract; but it is whollyinappropriate in dealing with a case where thecontract or the Rule is alleged to violate aconstitutional guarantee afforded by Article 311(2);..32. Let us then test this argument byreference to the provisions of Article 311(1).Article 311(1) provides that no person to whomthe said article applies shall be dismissed orremoved by an authority subordinate to that bywhich he was appointed. Can it be suggesed thtthe Railway Administration can enter into acontract with its employees by which authorityto dismiss or remove the employees can bedelegated to persons other than thosecontemplated by Article 311(1)? The answer tothis question is obviously in the negative, andthe same answer must be given to the contentionthat as a result of the contract which embodiesthe impugned Rules, the termination of therailway servant's services would not attract theprovisions of Article 311(2) though, in law, itamounts to removal".23. We also find from an examination of the termsof the attestation form that termination without noticeor inquiry was contemplated only in the context of https://hcservices.ecourts.gov.in/hcservices/ furnishing false information in and around the time ofthe appointment. Note (1) of the preamble warns that:"the furnishing of false information orsuppression of any factual information in theattestation form would be a disqualification andis likely to render the candidate unfit foremployment."Similarly, the certificate at the end of theattestation form states that "I am not aware of any circumstanceswhich mightimpair my fitness for employment under theGovernment. I agree that if the aboveinformation is found false or incomplete in anymaterial respect, the appointing authority willhave a right to terminate my services withoutgiving notice or showing cause."Be that as it may.24. The termination of the appellant without aninquiry or hearing was illegal and invalid. In thenormal course, we would have set aside the terminationand directed reinstatement with consequential benefits,reserving liberty to the employer to initiatedisciplinary proceedings. But the peculiar facts ofthis case require us to adopt a slightly differentapproach to do complete justice between the parties.13. The above passage cited by the learned counsel for thepetitioner fully supports his case. When the petitioner havingbeen appointed as regular Government servant has protection underArticle 311(2) of the Constitution before any penalty is imposedon him, which are set out in the said Article. 14. Though the learned Government Advocate tried to bringjudgments to state that if the initial appointment is invalid,then there is no further notice required but the case cited by thelearned counsel also arose out of cancellation of appointment onthe ground that the community certificate produced by theconcerned 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 personsrelating to the Community Certificate and therefore the SupremeCourt itself directed the State Level Committee while cancellingthe Community Certificate, need not issue further notice to theGovernment 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 anyrelevance to the case on hand.15. It is also relevant to refer to another judgment of theSupreme Court in Rajasthan State Road Transport Corporation andanother 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, isState within the meaning of Article 12 of theConstitution. If an act on its part is found to bewholly unreasonable or arbitrary, the same would beviolative of Article 14 of the Constitution of India.In certain situations, even gross violation of theprinciples of natural justice has been held to comewithin the ambit of Article 14 (See also Satyavir Singhv. Union of India, DTC v. Mazdoor Congress, Union ofIndia v. Tulsiram Patel and Central Inland WaterTransport Corprn.Ltd. v. Brojo Nath Ganguly).35. Any order passed in violation of the principlesof natural justice save and except certain contingenciesof cases, would be a nullity. In A.R.Antulay this Courtheld: ( SCC p.660 para 55)"55. .. No prejudice need be proved forenforcing the fundamental rights. Violationof a fundamental right itself renders theimpugned action void. So also the violationof the principles of natural justice rendersthe act a nullity."16. In the light of the above, the Writ Petition standsallowed and the impugned order stands set aside. No costs.However, allowing of the Writ Petition does not mean that thepetitioner can escape from the scrutiny of the Government withreference to his qualifications based on the Certificatesproduced at the time of entry. All that this Court has directedfor conducting an enquiry concerning with the principles ofnatural justice under Article 311(2) of the Constitution readwith statutory Rules framed under Article 309. The petitionercannot take the defence that since he had reached the age ofsuperannuation on 30.4.2010 that no further proceedings can beinitiated. In fact realizing the said defense that may be taken,the respondents have passed the order on 30.4.2010 once againdismissing the petitioner with retrospective effect. Though saidorder is quashed, it is hereby directed that the respondents arepermitted to continue the enquiry in accordance with law and thepetitioner 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 hasbeen pending before this court for the last ten years and thepetitioner had worked only on the basis of the interim order. Itis not open to the petitioner to raise such a defense at any pointof 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