V. Ramaswamy vs The State of Tamil Nadu and others

V. Ramaswami, J.—The permanent village headman of Tiruchisrambalam Village was taking leave time and again on the ground of ill-health.

During such period of leave, the petitioner herein was appointed to act as village headman. The last time the permanent village headman applied for

leave was for one year with effect from 15th March, 1970. The petitioner was appointed temporarily to act as village headman for a period of one

year from 15th March, 1970. While he was holding the office as temporary village headman, the permanent village headman died on 12th June,

1970. Thereafter, the R.D.O., Pattukottai, the third respondent herein, by his proceeding a dated 30th July, 1970 ordered that the services of the

petitioner during the period from 15th March, 1970 to 12th June, 1970 shall be treated as temporary in leave vacancy. By the same order he

appointed the petitioner as temporary village headman from 13th June, 1970 till the appointment of a permanent village headman. Originally certain

applications were celled for appointment of a permanent village headman, and the petitioner and the 4th respondent applied for the same. But

before an appointment could be made, the Tamil Nadu Village Officers Service Rules, 1970 (hereinafter referred to as the Rules) framed under

Art. 309 of the Constitution of India, were published in the Gazette and came into force on and from 16, December, 1970. Therefore, fresh

applications were called for under these new Rules for the appointment of a permanent village headman. After a consideration of the relative merits

of the petitioner and the 4th respondent herein who applied for the post, the R.D.O. by his order dated 25th July, 1973 appointed the petitioner as

the permanent village headman. The 4th respondent preferred an appeal to the 2nd respondent, the D.R.O., Thanjavur, and he considered that the

petitioner did not have the educational qualifications prescribed under R. 5 (1) of the Rules as be was only a V Standard candidate and had not

completed the S.S.L.C. examination. He was therefore of the view that the 4th respondent was more qualified for appointment and accordingly set

aside the order of the R.D.O. appointing the petitioner as the permanent village headman and in his place appointed the 4th respondent as the

village headman. The petitioner preferred a revision to the Government and obtained a stay of operation of the 2nd respondent''s order setting

aside his appointment. After the revision petition had been dismissed, he filed this Writ Petition and from this Court also he had obtained a stay of

operation of the order of the D.R.O., and thereby he continues in office till today. The learned counsel for the petitioner in the writ Petition raised

three main contentions. His first submission was that under the amended Rule 8 of the Rules on the date when the permanent vacancy had arisen,

namely, 12th June 1970, the 4th respondent had not attained the age of 21 years, his date of birth being 12th May 1951, and that therefore he was

disqualified from holding the office. Rule 8 of the Rules was amended and the amended rule came into force with effect from 26th May 1974. Rule

8 before amendment reads as follows:

General qualifications relating to age: No person shall be eligible for appointment to any post in any category specified in rule 2 unless he has

attained the age of 21 years and has not attained the age or 40 years, on the first day of July of the year in which the selection for the appointment

in made.

It may be seen from this rule that the relevant day for the purpose of deciding the Jage qualification was the first day of July of the year in which the

selection for the appointment is made. The selection in this case was made as already stated by the 3rd respondent R.D.O., on 25th July 1973,

that is in the year 1973. Therefore, as per the original rule the relevant date for determining the age was the first day of July 1973. On the first day

of July 1973, certainly the 4th respondent had completed 21 years of age. Rule 8 as amended runs as follows:--

General qualification relating to age: No person shall be eligible for appointment to any post in any category specified in rule 2 unless he has

attained the age of 21 years and has not attained the age of 40 years, on the date on which the vacancy had arisen permanently.

If the amended role is applicable to the instant case, then the age would have to be determined with reference to the date on which the vacancy

had arisen permanently, namely, 12th June 1970. On 12th June 1970 the 4th respondent had not attained 21 years of age. The question therefore

is whether the petitioner is entitled to invoke the provisions of the amended rule 8 and disqualify the 4th respondent.

Amended Rule 8 came into force on 26th June 1974. The rule in terms does not give any retrospective effect nor could I consider that there is

anything implied to give retrospective operation for the rule. I have already held in V. Annamalai Senainathar v. The State of Tamil Nadu dated 3rd

November 1975 that it would apply only to cases where the application for appointment of a permanent village headman was called for

subsequent to 26th June 1974. Since in this case, the applications were called for on 28th March 1973, the amended rule 8 could not be invoked

by the petitioner.

It was next contended by the learned Counsel for the petitioner that when the R.D.O. appointed the petitioner as the permanent village headman

by his order dated 25th July 1973, he shall be deemed to have exercised his power under Rule 5(5) of the Rules. That rule provided that if there

are no applicants who possess the qualifications prescribed under Rule 5(1), or if the applicants possessing such qualifications are otherwise

unsuitable for appointment as village headman, the competent authority could appoint a person who does not possess the qualification specified in

sub-rule (1). According to the learned counsel for the petitioner, though the petitioner had not the required educational qualification prescribed

under Rule 5(1), he was appointed by the R.D.O., as he found the 4th respondent not suitable for appointment as village headman. The 2nd

respondent D.R.O. was therefore wrong in disqualifying him on the ground that he had not got the required educational qualification. There is no

substance in this contention of the learned counsel. The jurisdiction of the R.D.O. to appoint a person who does not possess the required

qualification arises only if there was no other applicant possessing such qualifications or the other applicant is found to be unsuitable for

appointment. The existence of these conditions could be tested by the Appellate Authorities as well in order to find whether the original appointing

authority had exercised his power properly under Rule 5(5). The D.R.O. found that the 4th respondent was qualified in all respects and also

suitable for appointment as village headman. On those findings, the R.D.O. would have no jurisdiction to invoke his powers under Rule 5(5) and

the D.R.O. was therefore not wrong in setting aside the order on the ground that the petitioner had not got the required educational qualification.

It was next contended by the learned counsel for the petitioner that the petitioner was appointed as a temporary village headman by a competent

authority under the Board Standing Orders prior to 16th December 1970 and that he was holding the post as such on 19th March 1975 and that

therefore under Rule 18(b) as amended by G.O. Ms. No. 695 Revenue dated, 19th March 1975, he shall be deemed to have been appointed on

a permanent basis. As already stated, the petitioner was appointed as a temporary village headman till the appointment of a permanent village

headman by the proceedings of the R.D.O. dated 30th July 1970. It is not in dispute that at that time the competent authority under the Board

Standing Orders to appoint a permanent or temporary village headman was the R.D.O. The petitioner had contended in his affidavit that he was

fully qualified for appointment as a permanent village headman under the Board Standing Orders and in fact he was holding the post temporarily for

more than ten years prior to 1970. There is however no specific denial of the same in the counter affidavit. We have therefore to proceed on the

assumption that the petitioner was qualified for appointment as a permanent village headman under the Board Standing Orders. But the learned

Government Pleader contended that only in cases where the temporary appointment was prior to 16th December 1970 and such appointment

continued without any interruption after 16th December 1970 till 19th March 1975 that Rule 18(b) could be invoked. If subsequent to 16th

February 1970 and prior to 19th March 1975 applications were called for or proceedings initiated for the appointment of a permanent village

headman, then Rule 18(b) could not be invoked. It is not necessary for us to consider this extreme contention of the learned Counsel for the

petitioner. In this case subsequent to 10th December 1970 not only applications for the appointment of a permanent village headman were called

for, but the petitioner himself was appointed as the permanent village headman by an order dated 25th July 1973 of the R.D.O. But this order was

set aside by the Appellate Authority and the order setting aside had been stayed till date and by virtue of the stay order, the petitioner continued to

remain in possession of the Office. It is for consideration whether in there circumstances Rule 18(b) could be invoked by the petitioner.

Rule 18 as originally promulgated reads as follows:

Nothing contained in these rules shall apply to persons, who, on the date of coming into force of these rules, are holding the posts of village

headman or additional village headman, village karnam or additional village karam either temporarily or permanently.

This was amended by G.O. Ms. No. 268 Revenue dated 18th February 1972, and the provision subsequent to the amendment read as follows:--

(a) Nothing contained in these rules shall apply to persons who, on the date of coming into force of these rules are holding the posts of village

headman or additional village headman, village karnam or additional village karnam permanently.

(b) Nothing contained in these rules shall apply to persons, who on the date of coming into force of these rules, are holding the poets of village

headman, or additional village headman village karnam or additional village karnam temporarily provided that at time of their temporary

appointment they were fully qualified under the Standing Orders applicable to the areas not governed by the statute and their appointments had

been made by the authority competent under the said Board Standing Orders after calling for applications.

R.18 was further amended and was substituted by a fresh R.18 by G.O Ms. No. 695 Revenue dated 19th March 1975 which reads as follows :

18 (a) Nothing contained in these rules shall apply to persons who, on the 16th December, 1970 are holding the posts of village headman or

additional village headman, village karnam or additional village karnam permanently.

(b) Nothing contained in these rules shall apply to persons who, on the 16th December, 1970 were fully qualified under the Board Standing

Orders applicable to the areas not governed by the statute and their appointment had been made by the authority competent under the said Board

Standing Orders and are holding the posts of village headman or additional Village headman, village karnam or additional Village Karnam

temporarily against permanent vacancies and continue as such on the 19th March 1975 and they shall be deemed to have been appointed on a

permanent basis.

(c) Any person appointed temporarily for a specified period to the post of village headman, additional village headman, village karnam, or

additional village karnam who is not fully qualified under the Board Standing Orders for appointment to the said post, shall hold office only for the

period for which he was appointed.

Considering the scope of the rule prior to its amendment in 1975, this Court in Nanjundeswaran v. The Sub Collector, Mettur 1973-1 M.L.J. 1 :

86 L.W. 326, held as follows :

The intention of R. 18 or R. 18 (b) is that once a person has been temporarily appointed as contemplated by the said Rules, even though he may

not be qualified under the rules in question, his temporary appointment should not be disturbed and must be continued for the period for which he

was temporarily appointed. Once the temporary appointment comes to an end and the post is to be filled on a permanent basis, undoubtedly every

applicant for that post will have to comply with the requirements of the Rules in question.

The Court rejected the argument that the effect of the Rule was that once a person was appointed temporarily he was exempt from all the rules for

ever so long as he chose to remain in the post or reached the age of superannuation. In the instant case, the temporary appointment made on 30th

July, 1970, till a permanent village headman was appointed and not for any specified period. Therefore, he shall be deemed to continue as such

temporarily appointed village headman till the post was filled on a permanent basis. He was appointed by the R.D.O. on 25th July, 1973 as a

permanent village headman. On such appointment, he ceased to be a temporary village headman. In fact, the Tahsildar by his proceedings dated

18th August, 1973 intimated the R.D.O. that the order appointing the petitioner as the permanent village headman was served on the petitioner on

2nd August, 1973 and that the petitioner who was appointed as a temporary village headman is continuing his post as a permanent village headman

from 2nd August, 1973. But the learned counsel for the petitioner argued that when the Appellate Authority set aside the order appointing him as

permanent village headmen, it shall be deemed as if there was no appointment of the petitioner as a permanent village headman, though he

continued in the same position by virtue of the stay order. I am unable to accept the contention of the learned counsel. When the petitioner was

appointed as the permanent village headman, the temporary appointment had come to an end and he was holding the office as a permanent village

headman from the date on which he was appointed by the R.D.O. as such, that is from 2nd August, 1973 when he was served with the order by

the Tahsildar. The setting aside of the appointment by the Appellate Authority does not and would not have the effect of reviving the temporary

appointment originally made and make the petitioner a temporary village headman holding that office as such. When the D.R.O. set aside that

order and that order was stayed, it did not also have the effect of vacating the order appointing the petitioner as a village headman. Therefore, even

on 19th March, 1979 he was holding the office only as a permanent village headman appointed by the R.D.O. under the present rules and not

under the Board Standing Orders. The petitioner cannot therefore be deemed to be holding the post on a permanent basis under the deeming

provisions in R.18 (b) of the Rule. No other point arises in this Writ Petition.

The Writ Petition accordingly fails and the same is dismissed. There will be no order as to costs.