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M. Vedachala Pillai and ors. Vs. the State of Tamil Nadu, Represented by the Secretary to Government, Revenue Department and ors. - Court Judgment

LegalCrystal Citation
SubjectConstituion
CourtChennai High Court
Decided On
Reported in(1981)1MLJ269
AppellantM. Vedachala Pillai and ors.
RespondentThe State of Tamil Nadu, Represented by the Secretary to Government, Revenue Department and ors.
Cases ReferredGazula Dasaratha Rama Rao v. State of Andhra Pradesh
Excerpt:
.....to implement the above statute, a number of rules were promulgated by the government under the proviso to article 309 of the constitution of india, and, for the purpose of these cases, it is necessary to refer only to two sets of rules, namely, the tamil nadu village officers (appointed under board's standing orders) service rules, 1975, and the tamil nadu village officers (appointed under board's standing orders) services rules, 1978. the 1975 rules which were promulgated by g......to them and their appointments had been made by the authority competent under the board's standing orders rule 4 of these rules dealt with the tenure of office and sub-rule (1) of this rule stated:village officers on attaining the age of sixty years shall retire and shall not be retained in service:provided that the government may require a village officer to retire at any time after he has completed thirty years of services provided that the appointing authority shall give in this behalf a notice in writing to the village officer at least three months before the date on which he is required to retire.6. it is admitted that the petitioners in all these cases were appointed as village officers under the provisions of madras act iii of 1895 prior to the decision of the supreme court.....
Judgment:
ORDER

M.M. Ismail, C.J.

1. This batch of writ petitions raises a common question.

2. In the Presidency of Madras there were two enactments, the Madras Proprietary Estates Village Service Act (II of 1894) and the Madras Hereditary Village Offices Act (III of 1895) in force Section 6 of the latter Act dealt with the re-grouping of villages or division of villages and the appointment of officers to such re-grouped or divided villages. The basic principle under the Act was to recognise the hereditary right to the offices enumerated in Section 3(1) of the Act Consistent with that basic principle Section 6(1) of the Act provided that in choosing persons to fill up such offices the Collector shall select persons whom he may consider best qualified from among the families of she last holders of the offices which have been abolished. Section 10 of the Act dealt with the succession to the offices and provided that, when a vacancy occurred in any of the village offices forming class (1) in section J, the Collector shall fill up the vacancy in accordance with the provisions of the succeeding sub-sections and that succession shall devolve on a single heir according to the general custom and rule of primogeniture governing succession to impartible zamindaries in southern India. Sub-section (1) of Section 10 enumerated certain disqualifications for such persons. Sub-sestion (3) stated that, where the next heir was not qualified under Sub-section (1), the Collector shall appoint the person next in order of succession who was so quilified, and, in (the absence of any such person in the line of succession, may appoint any person duly qualified under Sub-section (1).

3. The validity of Section 6(1) of the Act was the subject-matter of consideration by the Supreme Court in Gazula Dasaratha Rama Rao v. State of Andhra Pradesh : [1961]2SCR931 . The Supreme Court held:

There can be no doubt that Section 6(1) of the Act does embody a principle of discrimination of the ground of descent only. It says that, in choosing the persons to fill the new offices, the Collector shall select the persons whom he may consider the best qualified from among the families of the last holders of the offices which have been abolished. This, in our opinion, is discrimination on the ground of descent only and is in contravention of Article 16(2) of the Constitution.

4. Though the Supreme Court only dealt with Section 6(1) of the Act, it is beyond dispute that the decision of the Supreme Court was also applicable to the appointment made under Section 10 of the Act, because the appointment under Section 10 was made on the ground of descent alone. In view of this only the Madras Proprietary Estates Village Service and the Madras Hereditary Village Offices (Repeal) Act, 1968 was passed and the same received the assent of the Governor on the 8th October, 1968, and was published in the Fort St. George Gazette on the 16th October, 1968. Section 2(1) of this Act repealed the two enactments referred to above namely, the Madras Proprietary Estates Village Service Act, 1894(Madras Act II of 1894) and she Madras Hereditary Village Offices Act, 1895, (Madras Act III of 1895), subject to the provisions of sub Section (3). Sub-section (3) of Section 2 provided-

Every holder of a village office, appoint-ed under the Acts repealed by Sub-section (1), shall, notwithstanding the repeal of the said Acts, continue to hold office subject to such rules as may be made under the proviso to Article 309 of the Constitution.

Subsequent in order to give effect to the judgment of the Supreme Court as well as to implement the above statute, a number of rules were promulgated by the Government under the proviso to Article 309 of the Constitution of India, and, for the purpose of these cases, it is necessary to refer only to two sets of rules, namely, the Tamil Nadu Village Officers (Appointed under Board's Standing Orders) Service Rules, 1975, and the Tamil Nadu Village Officers (Appointed under Board's Standing Orders) Services Rules, 1978. The 1975 Rules which were promulgated by G. O. Ms. No 1140, Revenue, Dated 17th May, 1975, were not brought into force, but were kept in abeyance. The 1978 Rules were brought into force by G. O Ms. No, 2261, Revenue, dated 9th October, 1978, superseding the 1975 Rules. In the present case we are concerned only with the 1978 Rules (hereinafter called the Rules).

5. As we pointed out already, these Rules were called the Tamil Nadu Village Officers (Appointed under Board's Standing Orders) Service Rules, 1973, and were promulgated under the proviso to Article 309 of the Constitution of India. Sub-rule (2) of Rule 1 stated that the 'Rules' shall apply to all village officers holding the posts of Village Headman or Additional Village Headman, Village Karnam or Additional Village Karnam Talayari, Vetti, or Nirgati, either permanently or temporarily on the 16th December, 19/0, provided that, at the time of their appointment they were qualified under the Board's Standing Orders applicable to them and their appointments had been made by the authority competent under the Board's Standing Orders Rule 4 of these Rules dealt with the tenure of office and Sub-rule (1) of this Rule stated:

Village Officers on attaining the age of sixty years shall retire and shall not be retained in service:

Provided that the Government may require a village officer to retire at any time after he has completed thirty years of services provided that the appointing authority shall give in this behalf a notice in writing to the village officer at least three months before the date on which he is required to retire.

6. It is admitted that the petitioners in all these cases were appointed as village officers under the provisions of Madras Act III of 1895 prior to the decision of the Supreme Court referred to above, 6th December, 1960. These petitioners have been required to retire on their attaining the age of 60 years under Rule 4(1) of the Rules. Toe petitioners challenge this order requiring them to retire under Rule 4(1) of the Rules.

7. Though several contentions have been raised in the affidavits filed in support of the writ petitions, it is not necessary to go into all of them, since the petitioners are entitled to succeed on one ground. We have already extracted Sub-rule (2) of rule (SIC) of the Rules. That Rule expressly states that the Rules will apply Co village officers, who at the time of their appointment, were qualified under the Board's Standing Orders applicable to them and their appointment had been made by the Authority competent under the Board's Standing Orders. In respect of these petitioners, who were appointed under the provisions of Madras Act III of 1895 before 6th December, 1960, there was no question of their being qualified to be appointed to the village office under the Board's Standing Orders applicable to them and their qualifications and appointment rested solely on the provisions contained in Section 10 of the Act. Consequently the petitioners herein will not answer the description contained in Sub-rule (2) of Rule 1 of the Rules. If they do not answer the description contained in Sub-rule (2) of Rule 1 of the Rules, the Rules are not applicable to them, and therefore they cannot be required to retire under Rule 4(1) of the Rules.

8. However, the learned Government Pleader contended that the Madras Proprietary Estate Village Service and the Madras Hereditary Village Offices (Repeal) Act, 1968. (Madras Act XX of 1968) expressly stated in Sub-section (3) of Section 2 that the village officers who were appointed under the Act shall continue to hold office subject to such Rules as may be made under the proviso to Article 309 of the Constitution of India, that the Government, in exercise of their powers under the proviso to Article 309 of the Constitution of India, in G. 0. Ms. No 2298, Revenue, dated 1st December, 1968, made a Rule applying the Board's Standing Orders to these officers and that therefore the retirement of the officers in the present cases cannot be said to be invalid or illegal. The Rule that was promulgated by G. O Ms. Ns. 2298, Revenue, dated 1st December, 1968 was to the following effect:

The Standing Orders of the Board of Revenue applicable to non-hereditary village offices shall apply to every holder of a village office to which the Madras Proprietary Estates Village Service Act, 1894(Madras Act II of 1894) or the Madras Hereditary Village Of ices Act, 1895(Madras Act III of 1895) was applicable immediately before the 1st day of December, 1968.

In our opinion, this notification issued by the Government under the proviso to Article 309 of the Constitution of India is not of any assistance whatever to support the orders passed against the petitioners in these cases. The effect of this Rule merely is to apply the standing orders of the Board to the officers appointed under the Act with effect from the date of the Rule, But what we are concerned with is Sub-rule (2) of Rule 1 of the Rules and that talks about the Board's Standing Orders applicable to the appointees at the time of their appointment and not with effect from a later date. As we pointed out already, in every one of these cases, the petitioner was appointed before 6th December, 1960, that is, before the decision of the Supreme Court referred to above, and consequently there was no question of the Board's Standing Orders being applicable to them as on that date, and hence this argument of the learned Government Pleader will be of no avail to support the orders passed by the authorities in the present case.

9. In view of this, all these writ petitions are allowed, and the orders requiring the petitioners to retire under Rule 4(1) of the Rules are declared to be invalid on the ground that the Rules themselves are not applicable to them. There will be no order as to costs.


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