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V. Govindaswami Vs. the Revenue Divisional Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1972)2MLJ153
AppellantV. Govindaswami
RespondentThe Revenue Divisional Officer and anr.
Excerpt:
- .....be possible to infer that the power of control conferred under that provision would include the power of appointment also. i am unable to accept this argument. power of appointment is distinct from power of control. even a subordinate official can be conferred the power of control, though he may have no power of appointment of those over whom he may be conferred the power of control. the position is that there is no provision conferring power upon the commissioner to appoint a clerk to the union council.4. on behalf of the respondents, it was contended that though the petitioner was selected by the appointments committee, he was actually appointed by the commissioner and that, therefore, the petitioner cannot be heard to say that he was not appointed by the commissioner, but was.....
Judgment:
ORDER

K.S. Palaniswamy, J.

1. The petitioner was appointed as a lower division clerk in the Polur Panchayat Union, North Arcot district, on 15th November, 1969, after having; been interviewed and selected by the appointment committee constituted under Section 53 of the Madras Panchayats Act, 1958 (hereinafter referred to as the Act). The post to which he was appointed was a permanent one but the appointment was made on a temporary basis. The Commissioner of the Panchayat, the second respondent, by proceedings, dated 8th April 1970, ousted the petitioner from service with immediate effect.. This petition is filed to quash the said, order.

2. The case of the respondents, the first respondent being the Revenue Divisional Officer, Timvannamalai, on whose instructions the second respondent, the Commissioner, issued the impugned proceeding is that the post should have been filled up by appointing a person belonging to scheduled caste or scheduled; tribe, according to the communal rotation, that the petitioner, not being a scheduled caste or scheduled tribe member was not eligible to be appointed and that,, therefore, when the mistake was noticed,, the first respondent issued instructions on the basis of which the second respondent passed the ousting order. It is, also contended that inismuch as the petitioner was appointed only on a temporary basis, he is not entitled to question the ousting order.

3. The point that arises for decision in this case is whether the second respondent was competent to issue the impugned order. A consideration of this question calls for an examination of certain provisions of the Act. The word 'Commissioner' is defined in Section 2(5) as meaning the Commissioner of the Panchayat Union. Sections 44(4)(e) and 45 deal with the appointment and. ordinary and emergency powers of the Commissioner. Among the several duties which he has to discharge, one is to carry into effect the resolutions of the Panchayat Union Council. He is also required to control all the officers and servants of the Panchayat Union Council Section 44(4)(e). Section 45 confers certain emergency powers on the Commissioner. Section 61 confers power upon the Commissioner to punish officers and servants in the service of the Panchayat Union Council. Such powers include power of censure, fine, withholding of increment or promotion, suspension, removal and dismissal for any breach of the departmental rules or discipline or for carelessness, unfitness, neglect of duty or other misconduct. Section 53 provides for the constitution of an appointments committee for every panchayat union. Sub-Section 1(a) of that Section reads:

There shall be an appointments committee for every panchayat union, which shall be composed of the chairman of the Panchayat Union Council, the Commissioner and one member elected annually by the Panchayat Union Council. The Chairman of the Panchayat Union Council shall be the chairman of the committee. Subject to the provisions of Section 58, and to such rules as may be made by the Government in this behalf appointments to all posts under the Panchayat Union Council the pay of which is debitable to the funds of the Panchayat Union Council, shall be made with the prior approval of the committee.

Though this provision says that the appointment shall be made with the prior approval of the Appointments Committee there is no express provision conferring upon any authority the power to make the order of appointment, though it may be subject to the prior approval of the Appointments Committee. Section 58 confers power upon the Government to make rules regarding the authorities who may appoint officers and servants of the Panchayat and Panchayat Union Council other than Executive Officers and Commissioners. By virtue of this power, the Government have framed the Madras Panchayat Union Establishment Rules, 1965. Even those rules do not contain any provision regarding the authority who can appoint clerks, though the rules contain elaborate provisions in the matter of discipline, etc. The learned Assistant Government Pleader conceded that there is no express provision either in the Act or in the rules empowering the Commissioner to appoint clerks. But he, however contended that by virtue of the power conferred on the Commissioner under Section 44(4)(c) of the Act, it may be possible to infer that the power of control conferred under that provision would include the power of appointment also. I am unable to accept this argument. Power of appointment is distinct from power of control. Even a subordinate official can be conferred the power of control, though he may have no power of appointment of those over whom he may be conferred the power of control. The position is that there is no provision conferring power upon the Commissioner to appoint a clerk to the Union Council.

4. On behalf of the respondents, it was contended that though the petitioner was selected by the Appointments Committee, he was actually appointed by the Commissioner and that, therefore, the petitioner cannot be heard to say that he was not appointed by the Commissioner, but was appointed by the Appointments Committee. The proceedings relating to the appointment of the petitioner were drawn in the name of the Commissioner. The order refers to the selection of the petitioner by the Appointments Committee and it reads:

Thiru V. Govindaswami who has been deputed by the District Employment Exchange and selected by the Appointments Committee of this Panchayat Union is appointed to act as clerk temporarily on a pay of Rs. 90 in the scale of Rs. 90-3-120-2-140 plus usual D.A. of Rs. 98 p.m. vice in the existing vacancy.

Placing reliance upon the aforesaid order it is contended on behalf of the respondents that the petitioner should be deemed to have been appointed only by the Commissioner. Though the order reads as if the petitioner was appointed by the Commissioner, we have got to construe the duties imposed upon the Commissioner under the Act. One of his duties is to carry into effect the resolutions of the Panchayat Union council. He is also directly responsible for the fulfilment of the purposes of the Act. The Appointments Committee is enjoined with the duty of giving approval to appointments to all posts under the Panchayat Union Council. When the Appointments Committee accords its approval, it is the duty of the Commissioner to carry into effect the approval. It is presumably in the discharge of such a duty that the Commissioner, in the instant case, issued the order of appointment to the petitioner to give effect to the approval of the Appointments Committee. In the absence of an express power conferred upon the Commissioner to appoint a clerk, the order of appointment has to be construed as one having been passed by the Commissioner for the purpose of giving effect to the selection and approval by the Appointments Committee. The Commissioner does not possess any power to appoint, independently of the authority of the Appointments Committee.

5. It appears that the post to which the petitioner was appointed was to have been filled up by a person belonging to Scheduled Caste or Scheduled Tribe. The first respondent, Revenue Divisional Officer, claiming to exercise powers as an appellate authority, under Rule 11(2)(A) of the Madras Panchayat Union Establishment (Appointment and Punishment) Rules, 1965, issued proceedings to the second respondent, the Commissioner, on 4th April, 1970 pointing out that the post should have been filled up by selecting and appointing a person belonging to Scheduled Caste or Scheduled Tribe. He instructed the second respondent to advise the Appointments Committee to select and appoint a candidate belonging to Scheduled Caste or Scheduled Tribe in the vacancy by ousting the petitioner immediately. To give effect to these instrtictions, the second respondent issued the impugned order on 8th April, 1970 stating inter alia that the post should have been filled up by appointing a person belonging to Scheduled Caste or Scheduled Tribe, that the first respondent had ordered the ousting of the petitioner. Who is not a member of the Scheduled Caste or Scheduled Tribe and that, therefore, the petitioner was ousted from service with immediate effect. It is contended on behalf of the petitioner that though the second respondent purported to give effect to the instructions issued to him by the first respondent, he had no power to straightaway issue the impugned order without reference to the Appointments Committee which selected him and that, in the circumstances, the second respondent had no power to issue the impugned order independently of the Appointments Committee. It is, however, contended on behalf of the respondents that inasmuch as it was the Commissioner who issued the order of appointment, it was not incumbent upon him to refer the matter to the Appointments Committee and that he was himself competent to pass the impugned order. I am unable to accept the argument advanced on behalf of the respondents. I have already pointed out that the Commissioner has no power of appointment by himself. The proceeding by which the order of appointment of the petitioner was issued was merely for the purpose of giving effect to the selection made by the Appointments Committee. The second respondent cannot claim to have exercised the power of termination of the petitioner's services by virtue of the powers under Section 61, for, that Section deals with power of punishment in disciplinary matters only. The action taken against the petitioner was not by way of punishment. Therefore, it is not open to the second respondent to fall back upon Section 61.

6. There being no power of appointment in the Commissioner and the order of appointment of the petitioner having been issued by the Commissioner only by Way of giving effect to the selection made by the Appointments Committee, the proper course which the second respondent should have adopted was to place the matter before the Appointments Committee so that the Appointments Committee could revoke the selection of the petitioner, in which case, it would have been competent for the second respondent to issue necessary proceedings terminating the services of the petitioner. Perhaps, the Revenue Divisional Officer, first respondent, was conscious of this position when he issued instructions to the second respondent on 4th April, 1970. But unfortunately he did not give instructions in clear terms. The instructions read as if the Appointments Committee should be approached to select and appoint a person belonging to Scheduled Caste or Scheduled Tribe without explicitly stating that such selection should be made by the Committee after the Committee itself set aside the selection of the petitioner already made. It is contended on behalf of the petitioner that if the Commissioner had referred the matter to the Appointments Committee, it would have been open to the Committee to shift the petitioner from the post to which he was appointed to some other vacancy, thereby preventing his ouster from service. It is not possible to say what the Committee would have dons if the matter had been referred to it. We do not know whether there was any vacancy also. But whatever it is, so far as the impugned order is concerned, it is clear that it is vitiated, inasmuch as the second respondent by himself had no power to issue the order of termination.

7. In the result, the writ petition is allowed and the impugned order is quashed. This order however, does not preclude the second respondent from placing the matter before the Appointments Committee and from taking suitable action for the purpose of filling up the post by selecting a person belonging to the Scheduled Caste or Scheduled Tribs. No order as to costs, and this case having been posted for being mentioned on Monday the 2nd and Tuesday the 3rd days of August, 1971 in the presence of Mr. R. Nadanasabapathy, Advocate for the petitioner and of Mr. S. Ramalingam, Assistant Government Pleader on behalf of the 1st respondent and the second respondent not appearing in person or by advocate and having stood over for consideration till this day the Court made the following.


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