V. Anbazhagan vs The State of Tamil Nadu

K. Chandru, J.—The Petitioner originally filed O.A. No. 6894 of 2000before 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 a Village Administrative Officer of Kodangudi Village, Udayarpalayam Taluk, he did

not possess the necessary educational qualification and his appointment was irregular as the District Collector as well as the Secretary of the

Revenue Department had directed them to pass appropriate orders.

The Tribunal vide its order dated 18.9.2000 granted an interim-stay. Subsequently the said order came to be continued without specifying any

time limit by a further order dated 12.9.2000. Though the Department filed M.A. No. 4510 of 2001 seeking 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 dated 24.4.2000 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 of 2006. 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 superannuation on 30.4.2010, passed an order on 29.4.2010 once again placing the Petitioner under suspension. Subsequently, canceling 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 of 2010 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 in terms 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. The said amendment cameto 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 SSLC failed 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 Service Commission 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 Government has 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,Tiruchirapalli allotted the Petitioner to Ariyalur Division to be appointed as

Village Administrative Officer vide proceedings dated 23.3.1995.

The Petitioner was working as Athukurichi Village Administrative Officer by the consequential posting order given by the Revenue Divisional

Officer dated 17.4.1995 under Rule 10(a)(i) of the General Rules. The Petitioner also joined duty as Village Administrative Officer on20.4.1995

and he has been continuing in the said post. His services were also regularised by the Revenue Divisional Officer on 29.11.1996. Subsequently, the

District Revenue 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 Government dated 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

his superannuation, namely 30.4.2010.

Therefore, the only question to be decided in the present Writ Petition is whether the order passed by the Government followed 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 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''s 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 Village Administrative Officer belongs to a constituted service created under Article 309 of the Constitution and governed by

the Tamil Nadu 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 any permanency 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 Counsel for 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, and also referred to the following passage found in paragraphs

20 to 24 :

The learned Counsel for the Respondents drew our attention to the instructions to the employees in the preamble to the attestation formand 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 furnishes false information, the employee is stopped from objecting to termination without notice. The said

contention may merit acceptance in the case of a probationer, but not in the case of a confirmed government servant.

No term in the attestation form, nor any consent given by a government servant, can takeaway the constitutional safeguard provided to a

government servant under 311 of the Constitution.

A seven-Judge Bench of this Court held in Moti Ram Deka v. North East Frontier Railway,as follows while negativing a contention that a

person who enters service by executing a contract containing a rule contrary to Article 311, with open eyes, cannot be permitted to challenge the

validity of the said rule or the contract.

... In our opinion, this approach may be relevant in dealing with purely commercial cases governed by rules of contract; but it is wholly

inappropriate in dealing with a case where the contractor the Rule is alleged to violate a constitutional guarantee afforded by Article 311(2);..

Let us then test this argument by reference to the provisions of Article 311(1). Article 311(1) provides that no person to whom the said article

applies shall be dismissed or removed by an authority subordinate to that by which he was appointed. Can it be suggested the Railway

Administration can enter into a contract with its employees by which authority to dismiss or remove the employees can be delegated to persons

other than those contemplated by Article 311(1)? The answer to this question is obviously in the negative, and the same answer must be given to

the contention that as a result of the contract which embodies the impugned Rules, the termination of the railway servant''s services would not

attract the provisions of Article 311(2) though, in law, it amounts to removal.

We also find from an examination of the terms of the attestation form that termination without notice or inquiry was contemplated only in the

context of furnishing false information in and around the time of the appointment. Note (1) of the preamble warns that :

the furnishing of false information or suppression of any factual information in the attestation form would be a disqualification and is likely to render

the candidate unfit for employment.

Similarly, the certificate at the end of the attestation form states that

I am not aware of any circumstances which might impair my fitness for employment under the Government. I agree that if the above information is

found false or incomplete in any material respect, the appointing authority will have a right to terminate my services without giving notice or showing

cause.

Be that as it may.

The termination of the Appellant without an inquiry or hearing was illegal and invalid. In the normal course, we would have set aside the

termination and directed reinstatement with consequential benefits, reserving liberty to the employer to initiate disciplinary proceedings. But the

peculiar facts of this case require us to adopt a slightly different approach to do complete justice between the parties.

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.

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 Committee appointed by the Supreme Court pursuant to the judgment in

Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, , wherein the Supreme Court directed the State

Level Committee to go into the veracity of the claim made by the persons relating to the Community Certificate and therefore the Supreme Court

itself directed the State Level Committee while canceling the Community Certificate, need no tissue further notice to the Government servant, who

secured entry with the bogus caste''s 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, . In the said judgment, in paragraphs 34 and 35, the Supreme Court held as follows :

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 be violative 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 Singh v. Union of India, DTC v. Mazdoor

Congress, Union of India v. Tulsiram Patel and Central Inland Water TransportCorprn. Ltd. v. Brojo Nath Ganguly).

Any order passed in violation of the principles of natural justice save and except certain contingencies of cases, would be nullity. In A.R.

Antulay this Court held: ( SCC p.660 para 55)

.. No prejudice need be proved for enforcing the fundamental rights. Violation of 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

Certificates produced 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 of superannuation on 30.4.2010 that no further proceedings can be initiated. In fact realizing the said defense that maybe

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 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. It is 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.