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S. Saradha and anr. Vs. the State of Tamil Nadu Represented by the Secretary, Education Department and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1974)1MLJ466
AppellantS. Saradha and anr.
RespondentThe State of Tamil Nadu Represented by the Secretary, Education Department and ors.
Cases ReferredIn Fakir Chunder Butt v. Ram Kumar Chatterjee I.L.R.
Excerpt:
- orderramaprasada rao, j.1. w.p. no. 1462 of 1973. -- on 16th january, 1966 the post of assistant educational officer fell vacant consequent upon the promotion of the previous incumbent in office as educational officer, corporation of madras. the post of assistant educational officer comes under the category of class ii officers in the establishment. for the first time but long after three months from the date when the post fell vacant a note was put up by the commissioner, corporation of madras, to the council to select a panel of two names for the purpose and also to indicate the order of preference. it was also suggested that the first candidate would be appointed as assistant educational officer (north) and the second will be appointed in any leave or other vacancy that may arise. the.....
Judgment:
ORDER

Ramaprasada Rao, J.

1. W.P. No. 1462 of 1973. -- On 16th January, 1966 the post of Assistant Educational Officer fell vacant consequent upon the promotion of the previous incumbent in office as Educational Officer, Corporation of Madras. The post of Assistant Educational Officer comes under the category of Class II Officers in the establishment. For the first time but long after three months from the date When the post fell vacant a note was put up by the Commissioner, Corporation of Madras, to the Council to select a panel of two names for the purpose and also to indicate the order of preference. It was also suggested that the first candidate would be appointed as Assistant Educational Officer (North) and the second will be appointed in any leave or other vacancy that may arise. The pool from which such officers could be selected consists of Headmasters of the various Corporation Schools and/or B.T. Supervisors. The names of the writ petitioner, 3rd respondent, S. Saradha, writpetitioner in W.P.No. 1459 of 1973, and another were also recommended. It is seen that the subject was also taken up by the Council, Corporation of Madras, long after three months from the date when the post fell vacant. The Council at its meeting held on 27th June, 1967 resolved to select the Writ petitioner and S. Saradha in the order of preference indicated for the posts as suggested by the Commissioner. But both the selections were to be subject to the approval of Government. On 5th July, 1967, the Commissioner issued proceedings as under :

In pursuance of the resolution of the Council cited and subject to the conditions mentioned below Thirumathi A. Purna Ramesh, B.A., B.T., Supervisor (Education), South District, is appointed to act as Assistant Educational officer North), Corporation of Madras in he scale of pay of Rs. 250 -- 10 -- 300 -- 15 -- 450 plus the usual allowances and a Motor Car Allowance of Rs. 100 per mensem vice Thiru O.A. Kanagasabai, B.A., B.T., Assistant Educational Officer (North), promoted as Educational Officer or until further orders.

1. the appointment is subject to her study of Tamil and qualifying within a period of two years from the date of her appointment by passing the 'Second Class language test in Tamil' held by the Madras Public Service Commission,

2. the appointment is purely temporary without right of probation and subject to the conditions contained under proviso to Section 94 of the Madras City Municipal Corporation Act, 1919 as amended by the Madras Act XV of 1965,

3. the appointment is subject to approval of the competent authorities.

It was made clear that the appointment was purely temporary without right of probation and subject to approval of the competent authorities. Obviously this appointment was made Under Section 87 (4) of the Madras City Municipal Corporation Act, hereinafter called the Act. On 14th July, 1967, the Commissioner communicated the resolution of the Council as also his proceedings temporarily appointing the writ petitioner as Class II Officer and requested that the Government may approve of the panel of names and invited the Government's attention to Section 85 (3) (b) of the Act. In the meantime the Writ petitioner took charge as a temporary incumbent to the office. The Government after obtaining certain remarks on the communication sent to them by the Commissioner, Corporation of Madras, on 12th October, 1971, pointed out that as the vacancy was not filled up in accordance with Section 87 (1) of the Act, it was irregular. They therefore asked the Commissioner, Corporation of Madras, to send to the Government a panel of names prepared on the basis of seniority and merit of all the persons qualified for the post for them to appoint. They referred to the other provisions of Section 87 also. It may be noted that when the Government wrote their memo., dated 12th October, 1971, there was no reference to the representations by then said to have been made by the 3rd respondent to them. The Commissioner, Corporation of Madras, however, was of the view, as expressed by him in his lettter dated 31st December, 1971, that the writ petitioner was continuing in the post of Assistant Educational Officer from 7th July, 1967 and that the Government not having refused to confirm' the panel as suggested by the Corporation under Sub-section (2), he was impliedly of the view that the Council acted in accordance with law. Incidentally he made it clear to the Government that all the four persons were fully qualified in accordance with the rules then in vogue. On the basis of such a communication received by the Government, the latter by the challenged order G.O. Ms.No. 168; Education Department, dated 1st February, 1973, felt that the appointment of the writ petitioner was contrary to the provisions of Section 87(1) of the Act and therefore the Government, in exercise of their residuary power Under Section 87 (3) of the Act, appointed the 3rd respondent regularly as Assistant Educational Officer in the vacancy caused in 1966 and added that A. Purna Ramesh may be appointed next if she is the seniormost. Consequent upon this the Commissioner issued an order reverting the writ petitioner as B.T. Supervisor. It is in these circumstances the present writ petition has been filed questioning the right of the State to issue the challenged order and for consequential reliefs.

2. In W.P.No. 1459 of 1973 S. Saradha is challenging the above order of the Government dated 1st February, 1973 stating that the Government had. no jurisdiction at all to interfere with the said order in exercise of their powers Under Section 87 (3), for that was not a vacancy which was to be filled up in accordance with Section 87 (1), but that was an order appointing the petitioner as a reliever in case of leave vacancies and that was done for administrative convenience and the power of appointment is referable to Section 85 (b) alone. No reason has been given by the Government to refuse to confirm the appointment of the writ petitioner as a person to relieve others when a leave vacancy arises. Section 87 (3) has a special purpose to serve and it cannot be understood as creating a residuary power under all circumstances. As no acceptable reason is given in the challenged order to set aside that part of the Council's resolution appointing the writ petitioner as a substitute for leave or any other vacancy that may arise and as no such power could be exercised Under Section 87 (3) of the Act it is claimed that the said order cannot interefere with her rights Which flow from the order of the Council.

3. In the light of the facts already stated it was contended on behalf of Puma Ramesh, writ petitioner in W.P. No. 1462 of 1973, that the Government exceeded their powers in acting Under Section 87 (3) of the Act in setting aside the order of the Council appointing her as Class IT Officer. It was said that the principles of natural justice have been violated in that she was not given an opportunity when the Government did act Under Section 87 (3) of the Act and appointed Abdul Jabbar, 3rd respondent, to the post. In any event it Was said that the prescription as to time within which the Council should appoint person to a post in which a vacancy has arisen is only directory and not mandatory and that the Council's action in having taken up the subject beyond three months could only be understood as an irregularity and not as an illegality ab initio.

4. As regards the writ petitioner in W.P. No. 1450 of 1973 it was said that the Government could not act Under Section 87 (3) to disturb the appointment made by the Council and as the challenged order does not given any reasons as to why the Council's appointment of this writ petitioner to leave vacancies ought not to be confirmed, the said non-speaking order in so far as this writ petition is concerned has to be set aside.

5. On the merits, however, it was not disputed that all the candidates proposed by the Council when it ultimately appointed Purna Ramesh and Saradha to the posts as set out above are equally merited and qualified. But amongst four of them it Was also not in dispute that the 3rd respondent, Abdul Jabbar, Headmaster, Corporation Urdu Boy's High School, Washermanpet, Madras 21, was the senior -most in the pool of officers to be considered for selection. As it is the general rule that in all selection posts if merit and ability are approximately equal, seniority is the guiding factor, the 3rd respondent would state that he has been overlooked without any justification and therefore he had to approach the Government for relief.

6. I shall first dispose of the contention that the principles of natural justice have not been adhered to in the instant case. The Government is exercising power as a superior statutory functionary under the provisions of the Act in the matter of selecting proper personnel to vacancies which have arisen in the establishment. If such subjects which are within their jurisdiction come up for consideration by them either for confirmation or for scrutiny, that would not be a proceeding which is equatable to a Us, which position alone would compel the scrutinising authority to hear adequately the persons interested in the subject-matter and ultimately decide. As principles of natural justice are not understood in the abstract and are equally not inflexible but has to be applied according to the facts and circumstances of each case, I am not satisfied that there has not been a fair disposal of the subject-matter in question on the only ground that Purna Ramesh was not heard in person or that representations were not called for by the Government when they acted Under Section 87 (3) of the Act. The Government, as would be seen hereafter, felt that there was an omission on the part of the Council to appoint a Class II Officer within the time prescribed Under Section 87 CO of the Act. The post not having been filled up in accordance with Section 87 (1) of the Act and as there was a default in such an appointment in that manner, the State Government invoked their residuary powers under Sub-section (3) of Section 87 and appointed the 3rd respondent Who was the seniormost among the candidates proposed to the post. I have already referred to the fact that the Commissioner, Corporation of Madras, in his note dated 31st December, 1971 to the Government, categorically stated that the four individuals recommended by the Commissioner were all fully qualified in accordance with the rules then in vogue.

7. Under Section 85 of the Act, every appointment in any office included in Class I-B or Class II shall be made by the Council and shall be subject to confirmation by the State Government. Section 87 Which is the sheet anchor of the contentions of both the parties can be extracted:

87. (1) If a vacancy occurs in any office included in Class I-B or Class IT, or any new office in Class I-B or Class II is created, the council shall within three months appoint any qualified and suitable person to hold such office.

(2) If the State Government refused to confirm the appointment so made, the council shall appoint some other qualified and suitable person within forty-five days from the receipt of the order refusing confirmation.

(3) In default of any appointment being made in accordance with Sub-section (1) or Sub-section (2), as the case may be, the State Government may appoint a person who in their opinion, is qualified and suitable to hold the office and such person shall be deemed to have been appointed by the council.

(4) Pending an appointment under sub-Section (1) or Sub-section (2), the Council may appoint a person to hold the office temporarily and assign to him such salary as it may think fit:Provided always that the salary so assigned shall not exceed the maximum fixed by the State Government by rules in respect of the office.

In the light of these statutory provisions,, the contentions of parties have to be considered.

8. Normally if a statute prescribes a formal time limit for the performance of a statutory duty without specifying any consequence in default of compliance with such a mandate, then such a prescription is directory and not mandatory.

9. It would be sufficient to refer to the following decisions which throw light upon the discussion on the point as to what is mandatory and what is directory. The leading case Which is oft quoted is that of the Privy Council reported in Montreal Street Railway Co. v. Narmandin (1917) A.C. 170. The principle therein stated is that where the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void' acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only and not imperative. In Rattan Anmol Singh v. Ch. Atma Ram : [1955]1SCR481 the Supreme Court said that When the law enjoins the observance of a particular formality, it cannot be disregarded and the substance of the Rule must be followed This principle was followed by the Supreme Court in Babu Ram v. Smt. Prasanni : [1959]1SCR1403 . No doubt, that was a case which arose under the Representation of the People Act and an election contest was viewed by the Supreme Court. Gajendragadkar, J., adopting the earlier observations of the Supreme Court in various cases made a distinction between defects which are of a substantial character and those which are not of a substantial character. In essence the Supreme Court has repeatedly said that When a statute prescribes a mandate, may be in relation to time within which the statutory functionary should act or may be it relates to any other formality, such a mandate ought to be complied with if the non-observance of it would cause a serious defect and would enable the statutory authority to act in any manner it likes. It would be encouraging intransigence on the part of the statutory functionary if it were allowed lightly to disregard prescriptions made by the statute regarding the manner of exercise of power and particularly in a case where a consequence is provided in the Act itself in case the peculiar prescription as to time, as in this case, is not observed. In the language of our learned Chief Justice in Guruswamy Reddiar v. Secretary, Regional Transport Authority South Arcot W. A. No. 1 of 1973, Where a statutory provision prescribes a time limit for doing a certain thing it is always a matter of construction whether its consequence is one of inhibition. The provisions of the statute themselves may give an indication. In other cases, the circumstance of the situation, or the justice of the matter may have a bearing. Therefore, in a case where a peculiar consequence is expressly provided for in the statute itself, then the general consideration as to whether the non-adherence to the rule would lead to injustice or affection of rights of third parties are all considerations which are really alien to the problem. Therefore, if a statute having regard to the objects for which the provisions relating to the appointment of Officers to the establishment of the Corporation are concerned says that a vacancy should be filled up within a period of three months by the Council and if it also provides that in default of such an appointment by the Council the State Government can interpose and act on their own and make the appointment, then this consequence makes it clear that the prescription as to time is not purely directory but is obligatory.

10. I may also refer to a decision of the Supreme Court in Raja Buland Sugar Co. Limited Rampur v. The Municipal Board, Rampur : [1965]1SCR970 , which deals with such a proposition :

The question whether a particular provision of a statute which on the face of it appears mandatory inasmuch as it uses the word 'shall' or is merely directory cannot be resolved by laying down any general rule and depends, upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the: provision has been made and its nature, the intention of the Legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is. read one way or the other, the relation of the particular provision to ether provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.

In the instant case, therefore, it has to be found whether a serious general inconvenience or injustice to persons has been done.

11. The writ petitioner was aware that she was only appointed temporarily to the post pending approval by the competent authority. This by itself shows that the writ petitioner had no right to the post for her to seek for the discretionary relief under Article 226 of the Constitution. It is only in cases where there is an infringement of a vested right that a person can be said to be inconvenienced or affected. But when the said right which is agitated is incomplete and not so vested, then the person who seeks for the enforcement of such an inchoate right, obtained by her cannot be said to be an aggrieved person. In the present circumstances it cannot be said that any public inconvenience or much less any inconvenience to the writ petitioner has occurred. She was occupying the post temporarily knowing fully well that she should quit the office if the Government does not approve of the resolution of the Council. The principles enunciated by the Supreme Court that in case where a general inconvenience has to be averted the situation created by the irregular exercise of power by a statutory functionary has to be winked at and. tolerated does not squarely apply to the instant case.

In the decisions the proposition is Well-established that a bare prescription as to time without furthering the intention by providing any consequence in case of non-compliance of the same has always been understood not as a mandate, but as a directive which is excusable and tolerated because it is of no consequence. But if on the other hand the prescription as to time is a well thought of directive coupled with a duty to act accordingly, then such a rule as to time has to be understood as a mandatory rule.

12. Section 87 (1) has to be read with Section 87 (3). Sub-section (1) of Section 87, no doubt, barely refers to a rule of time within which the Council has to act and fill up a vacancy occurring in the office enumerated in that sub-section. Sub-section (3) however provides for the consequence in cases where the council fails to act within the time prescribed. The language of Sub-section (3) is a pointer for interpreting the intention of the legislature as to whether the rule of time is directory or mandatory. If the council makes a default in filling up a vacancy occurring in Glass II office, with Which we are concerned, and so act in accordance with the prescription as to time, the residuary power to appoint a person Who in the opinion of the State Government is qualified and suitable to hold the office springs automatically and if an appointment is made such a person shall be deemed to have been appointed by the Council. This consequence projecting the residuary power in the State to act in default has a special significance as it has an impact on the real meaning and intention of the expression 'shall within three months appoint ' appearing in Sub-section (1) of Section 87. If no such appointment is made, then in the popular as well as in the legal sense a default has been made in the matter of appointment in accordance with Sub-section (1). Thus reading subsection (1) in conjunction with Sub-section (3), a meaningful purpose in the matter of appointment of officers in a vacancy in the specified offices appears. Even the marginal note is indicative of such a purpose. It speaks of the time within which vacancy in certain posts must be filled up. Though, no doubt, marginal notes are not invaluable guides for interpretation, they can certainly act sometimes as a basis to interpret. The word 'default' in Sub-section (3) has to be understood as an omission. In Fakir Chunder Butt v. Ram Kumar Chatterjee I.L.R. (1904) Cal.901 at p.908, the word 'default' was understood grammatically as a failure to perform. It is one of the cardinal rules of interpretation that the plain and grammatical meaning of the words in a statute should first be thought of before adopting any other meaning Which is not ordinary and popular unless there is an ambiguity in its meaning or there are compelling circumstances goading the Court to adopt such a meaning. I do not find any such extraordinary circumstances in this case to interpret the word 'default' in Sub-section (3) of Section 87 in a manner other than ordinary. Understanding the word ' default' as an omission, the question is whether the verb 'shall' in Sub-section (1) has to be still understood as merely directory or as 'may'. I have already referred to the salient principle that if a power is coupled with a duty, then such coupling makes the exercise of power a compulsory event and does not vest in the authority invested with such power a discretion to act as it pleases or beyond the directive, which is to be understood as a mandate annexed to the exercise of such a power. If the council fails to appoint a qualified and suitable person to hold the office in case any vacancy occurs in it within three months from the date of the occurrence of such vacancy in accordance with Section 87 (1) then it appears to me that the residuary power of the State Government to act and appoint a suitable person of their choice is unquestionable as it is automatic.

13. The Supreme Court has repeatedly held that if a statute lays down the modus operandi for the statutory functionary to act and if the pattern and manner of such acting is clearly set out, then no other mode of effectuating the intention of the Legislature is available to such a functionary.

14. In our case the Legislature has designedly provided a pointer in case of an omission on the part of the Council to appoint within the prescribed time. If that is the basis for the challenged order and the State acted Under Section 87 (3) and exercised their power to appoint the 3rd respondent after noticing the default committed by the Council, it cannot be said that they acted without jurisdiction or that the order impugned poses an apparent error of law or any other apparent error.

15. The argument is put in a slightly different way. Some instances are brought to my notice wherein the Government did not interfere with such irregular appointments made by the Council. That situation ought not to be quoted as a precedent. If the person aggrieved in such situations tolerates such an irregularity and if the Government overlooks the omission on the part of the Council, it is not for a third party to rely upon such circumstances to further her own case under different circumstances. It cannot be denied that in those cases the Government ought to have acted as it did in the present case. But Courts ought not to give their seal of approval to perpetuate an irregularity and more so an illegality if it is brought to their notice. It would be wrong to encourage such non-exercise of statutory power. It is in these circumstances I am unable to hold that the practice in the Corporation of Madras should be taken as a guide for the interpretation of the nature of the power which the 'Government has Under Section 87 (3).

16. On the merits also the writ petitioner cannot seek for the rule as asked. Her appointment is made subject to the approval of the appropriate authority, which in the instant case is the State Government. This reservation made by the Council is not only for the purpose of serving the intendment of Sub-section (2) , but also for other purposes. If the appointment is made well Within the prescribed time, it is left to the State Government to confirm the appointment or refuse to confirm the appointment. This is provided for in subsection (2) of Section 87. If it refuses to confirm the appointment, the Council shall appoint some other qualified and suitable person within forty five days from the receipt of the order refusing confirmation. In my view, Sub-section (2) of Section 87 would come into play only if the vacancy has been filled up within three months from the date when it occurs. But, if at the inception the Council appoints a person beyond three months, thus avoiding the mandate as to the limit of time in Sub-section (1), of Section 87, then such an appointment is an irregular appointment. In such circumstances the power of the State Government to refuse to confirm the appointment is available Under Section 87 (3} . The State Government could not act under Sub-section (2) of Section 87 because no occasion has arisen for it to confirm the appointment which is irregular and in the teeth of the provisions of Sub-section (1) of Section 87. It would be idle to contend that the State Government would confirm an appointment made by the Council if it is made beyond three months, because the State Government has the residuary power under Sub-section (3) to appoint a person to the office by itself without leaving it to the Council to appoint some other qualified and suitable person within forty-five days from the date of receipt of the order refusing confirmation. It would be extraordinary if the State Government acts Under Section 87 (2) and refuse confirmation of the appointment. The word 'confirmation' implies that the appointment itself was regular. If an irregular appointment is sought to be confirmed or not confirmed then it is very doubtful whether the State Government can exercise such jurisdiction at all under Section 87 (2). If for valid reasons the State Government cannot confirm such an irregular appointment a fortiori it follows that the State Government would be exercising a power when it has none in refusing to confirm an irregular or illegal appointment. The question of confirming an irregular appointment does not ordinarily arise in such circumstances. It is in the light of such eventualities which are possible that the Legislature has provided Sub-section (3) of Section 87 which enables the State Government as the ultimate repository of power and as residuary authority to act and appoint persons in the vacancies created.

17. As the appointment of the writ petitioner was not made within three months from the date when the vacancy occurred, the Council made an initial mistake in selecting her even though the 3rd respondent was senior to her in service. As a matter of fact, the record discloses that the merits of all the candidates considered by the Council and by the Government were equal. The salient principle of selection is that if everything is equal as between the competing candidates then the seniormost has to be selected. This was also not borne in mind by the Council when it made the appointment beyond time. These factors were| borne in mind by the Government when it acted under its residuary powers Under Section 87 (3) of the Act and appointed the 3rd respondent to the post.

18. One other view is also possible. As I said, the Council acted irregularly when it chose the Writ petitioner to act in the vacancy subject to the approval of the State Government. Apart from the fact that the petitioner did not secure any right to the post, as she was only asked to act and the appointment itself was subject to the approval of the State Government, it is a voidable appointment in the sense that it is for the State Government to act either Under Section 87 (2), or Section 87 (3). If the State Government is prepared to waive the irregularity and confirm the appointment Under Section 87 (2), it might do so. Even this is not proper exercise of power. But this question does not strictly arise for consideration in the instant case and excepting for observations already made I am not inclined to deal with that aspect in this case.

19. One other hesitant argument was put forward that the principles of natural justice have been violated since the petitioner was not called upon to state her objections to the representations made by the 3rd respondent. In the instant case the_ 3rd respondent Was not preferring a revision petition or an appeal to the Government. He referred, the subject-matter to the Government to point out to them how the Council acted As I have already stated, the 3rd respondent was senior to the petitioner and their merits and ability were all approximately equal. The Government studied the situation in the eye of law and corrected an error on record by exercising jurisdiction Under Section 87 (3). It is not imperative that in all cases like this the person whose temporary appointment is going to be disturbed has to be consulted. This is not a lis between two parties where the Government was an adjudicator for deciding the dispute as between them. In the peculiar circumstances it does not appear to me to be necessary for the State Government to have referred thememorandum of the 3rd respondent to the petitioner, for they Were not relatively adjudging the merits of the candidates, but on the other hand they Were exercising their own power under the statute which was occasioned by the patent default or omission committed by the Council in that the temporary appointment was made long after the prescribed time and Was therefore not in accordance with Section 87 (1) of the Act. Even the equities and merits are not quite in favour of the writ petitioner. She is not senior to the 3rd respondent. Though it is a selection post, the 3rd respondent and herself are merited equally. Under the Government Order she has to be appointed in the next vacancy as the next in the hierarchy. These are pointers to the effect that the challenged order being just and fair does not even prompt me to exercise jurisdiction under Article 226 to interfere with the said order. In these circumstances W.P. No. 1462 of 1973 is dismissed and there will be no order as to costs.

20. W.P. No. 1459 of 1973: -- The point for consideration in this writ petition is very simple. The writ petitioner has been appointed by the Council as a reliever in case any vacancy arises in the future. Such an appointment is not squarely within the meaning of Section 87 (1)| of the Act. The vacancy contemplated in Section 87 (1) is not an expected or anticipated vacancy but a real vacancy. The writ petitioner was appointed as substitute for leave or any other vacancy that may arise. It is therefore clear that as on the date of appointment she was not to fill up a vacancy which has arisen before three months from the date of appointment. It is only to enable the writ petitioner to act in the contingency of a leave vacancy or any other similar vacancy arising that she has been appointed as a stop-gap measure for purposes of continuity and eventually in public interest. Probably this has been done by the Council in exercise of its rights as a primary administrative body functioning under the Act. The State Government interfered with such a decision of the Council treating it as if it was an appointment made Under Section 87 (1) and by providing for themselves power to act Under Section 87 (3),. As I said, the appointment of the writ petitioner by the Council is not Under Section 87 (1) and it cannot be. In such circumstances the residuary power Under Section 87 (2) or (3) is not available to the State Government to set aside such an administrative order of the Council. Whatever power the State Government may have otherwise under the provisions of the Act, it has no power to disturb that order, under the guise of exercise of power Under Section 87 (3) The impugned order expressly says that the appointment of the writ petitioner is as a relieving officer and not as an officer who would permanently fill up a post which has fallen vacant. As the appointment cannot be interpreted to be one Under Section 87 (1) the State Government cannot assume power Under Section 87 (3) to set aside that order. In this behalf there is an error apparent. In so far as the appointment of the writ petitioner for the purpose as above has to be sustained as the State Government has exercised jurisdiction when it has none Under Section 87 (3) and in this behalf there is an error of law apparent in the record. I may incidentally add that the State Government while passing the challenged order did not expressly refer to the appointment of Saradha to fill up leave vacancies. But the Corporation of Madras obviously understood the order of the State Government in that ,way. There is no disturbance of that part of the Council's resolution by the State Government in so far as Saradha is concerned. Viewing this in that light the petitioner cannot complain. But as the order has been understood by the Corporation of Madras so as to deprive her of the right to act in the leave vacency though she has been appointed as such by the Council in exercise of its authority as the administrative functionary in the Corporation, she has come up to this Court. It is in this perspective that she is entitled to relief. This writ petition is allowed.. There will be no order as to costs.


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