Skip to content


Manimalai Ganesan Nee Manimalai D Vs. the Deputy Director of Collegiate Education and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1973)1MLJ9
AppellantManimalai Ganesan Nee Manimalai D
RespondentThe Deputy Director of Collegiate Education and anr.
Cases ReferredState of Punjab v. Sukh Raj Bahadur
Excerpt:
- .....such a person deals or has dealings, then the mere absence of a formal publication of that alleged changed name in the official gazette would not matter at all. the very intention of publication of a notice in the official gazette concerning the name of a man ordinarily occurs in cases where a person desires to change his name into another which is beyond recognition. for example, if one by name subramaniam wants to change his name to subbarao, then 'certainly it is necessary for him to make a public announcement, because for all purposes he shall be shelving the original name of subramaniam and assuming that of subbarao. such public notice is required because the person concerned may have contacts, dealings and appointments with many members of the public at large. it would be difficult.....
Judgment:
ORDER

T. Ramaprasada Rao, J.

1. The petitioner was elected as a temporary Assistant Professor of Geography and was originally posted as Assistant Professor of Geography in Arignar Anna Government Arts College for Men, Namakkal. She was ousted from the said office and was again appointed as temporary Assistant Professor at Government Arts College for Women, Madras-1. Though the order of appointment was issued on 20th October, 1971, she joined duty in the North Madras College only on the 16th of October, 1971. It is not in dispute that when she applied for the post, she described her name as D. Manimalai but signed as K. Manimalai. But for all purposes her name was taken as accepted as D. Manimalai. Soon after she joined service, she began signing the attendance register as well as other office registers in the College as Manimalai Ganesan. Apparently, Mr. Ganesan was her husband whom she married in the year 1962. Even when she was at Namakkal, she applied for permission to sign as Manimalai Ganesan as she was a married woman ; but she was asked to issue a Gazette notification to that effect. The petitioner did not do so. After transfer to Madras, when she was questioned by the Principal as to the circumstances under which she could sign as Manimalai Ganesh, she repeated her explanation and said that she was entitled to do so as a married woman and that it was not necessary for her to publish in the Fort St. George Gazette as there was no change in name. She also referred the Principal to certain departmental instructions issued' under the Defence of India Rules, 1962, where in the assumption or use of the husband's name by a married woman is not prohibited. Considerable correspondence ensued between the petitioner and the Principal in this behalf; apparently, everything was not calm as between the petitioner and the head of the institution. As a matter of fact, the petitioner took objection to the Principal's call directing her to purchase books and laboratory equipments for the Department of Geography by herself. It appears that the petitioner gave a directive to her students to have her notes cyclostyled, as the academic year was fast coming to a close and it would not be possible for her to complete the course of study within the normal hours. In connection with such a directive, it is stated that the petitioner collected certain amounts from the students so that she could have the notes cyclostyled. Thus ever since she joined the institution, there was no co-ordination as between herself and the Principal for one reason or other. The Director of Collegiate Education also made it clear that she could not use the name Manimalai Ganesan until a change was effected by publication thereof in the official gazette ; but still the petitioner persisted. On 4th January, 1972 she was informed that her services were not required and that her temporary appointment was terminated with effect from the date of relief. It is as against this order the present writ petition has been filed. The petitioner seeks for a writ of certiorari to remove the same.

2. In the counter-affidavit it is stated that she was appointed temporarily to officiate an Assistant Professor of Geography under Rule 10 (a) (i) of the General Rules for Tamil Nadu State and Subordinate Services and that at her request she was transferred to Madras and that her temporary appointment was terminated in the order challenged in this writ petition. On the facts alleged by the writ petitioner, the respondents would state that it was no doubt true that the petitioner was informed not to use or append her husband's name when the public record disclosed her maiden name only and that she did not carry out the instructions given from time to time either by the head of the department or by the Director. In fact no such request to append her husband's name was made when she applied to the post long after the marriage. The allegation that the Principal of the Madras College was inimically disposed towards her is denied. In any event, it is stated that, as the petitioner was appointed under Rule 10 (a) (1) of the General Rules of the Services, her services could be terminated at any time and without assigning any reason and, as the order challenged does not impute any stigma on the petitioner or on her conduct as professor it was not necessary to follow the usual procedure under Article 311 of the Constitution.

3. Arguments at length were addressed about the happenings inside the College at Madras and about the events said to have transpired between the petitioner and the Principal. It may not be necessary for me to consider them in detail as they are not necessary for the purposes of this case. But I am inclined to make certain observations regarding the propriety of a married woman to annex her husband's name to that of her own when she seeks for it after she joined service. It is customary in our country, and for the matter of that even outside our country, to have the name of the husband added on to the maiden name of a woman and for such an annexation no formality is required. Excepting for the conventional insistence by the Director of Collegiate Education that such annexation of husband's name tantamounts to a change of name and therefore requires a publication in the Official Gazette, it does not appear to me to be strictly necessary in the case in question and such similar instances. In a case where a married woman desires at any point of time to annex her husband's name to her maiden name, it does not mean that she wants to effect a change in her name. This appendage may be for the purpose of indicating to the world at large that she is no longer a maiden and that she is married and that she is so married to a person whose name she intends to append to her maiden name. These are all bona fide customary age-long practices prevalent everywhere ; and so long as the identity of the person is known to the persons concerned and with whom such a person deals or has dealings, then the mere absence of a formal publication of that alleged changed name in the official gazette would not matter at all. The very intention of publication of a notice in the official gazette concerning the name of a man ordinarily occurs in cases where a person desires to change his name into another which is beyond recognition. For example, if one by name Subramaniam wants to change his name to Subbarao, then 'Certainly it is necessary for him to make a public announcement, because for all purposes he shall be shelving the original name of Subramaniam and assuming that of Subbarao. Such public notice is required because the person concerned may have contacts, dealings and appointments with many members of the public at large. It would be difficult for such persons with whom he is associated to 'know of the change of name or accept it unless wide publicity is given to the same and in a manner ordinarily accepted by the appropriate authorities. One authorised manner which has been in vogue for a considerable time which normally would be an accepted media for a change of name is by advertising the same in the official gazette. As I stated already, the purpose behind the normal change of name may sometimes be far-reaching and it is because of such importance attached to that process that the general law compels a man to have recourse to a public organ for notifying such a change. In contradistinction to the above, it would be totally ludicrous to state that a married woman, when she affixes her husband's name to her accredited name, this is also a circumstance which is equatable to the circumstance already referred to and would require a public notice of the change of name. After all, law does not keep away from respected customary practices and norms. If adding or appending the name of the husband is customarily accepted as the usual practice and if that is done by a married woman in a situation where her identity is always known and there is no possibility of any apprehension being created in the minds of others regarding such a change, then I am of the view that recourse to public advertising in the official gazette regarding that change is totally unnecessary. In fact this view is reflected when the Defence of India Rules, 1962 touched upon the subject of change of name by citizens of India. Even the instructions given to the Accountant-General in the Manual of General Proceedings of the Accountant-General of Tamil Nadu say that a formality of publication could be dispensed with in the case of a married woman desiring to append her husband's name to her maiden name, provided the head of the office or department concerned is satisfied that the change sought to be effected is in pursuance of marriage and the name is after the name of the husband. As already stated by me the above observations are only incidental as they do not strictly arise for consideration in this case.

4. The petitioner is seeking for a writ of certiorari to remove the order of termination. I have already referred to the order of appointment wherein she was taken into service as temporary Assistant Professor of Geography. The point is whether such temporary service could be terminated so summarily.

5. Rule 10 (a) (i) of the General Rules governing the Madras State and Subordinate Service says that temporary appointments could be made in an emergency without following the rules and the Special Rules prescribed for filling up such a vacancy. But such a filling up of vacancy is done in public interest. Under Rule 10 (a) (v), a person appointed under Rule 10 (a) (i) shall not be regarded as a probationer in such service, class or category or be entitled to any preference. The rule further provides that the services of such a person shall be liable to be terminated by the appointing authority at any time without notice and with-out any reason being assigned. This is the condition of service attached to a temporary servant appointed under Rule 10(a)(i).

6. The question therefore is whether the order of termination can be challenged by the petitioner. Admittedly the petitioner entered service as a temporary Government servant. The condition attached to her service as indicated above enables the authorities to terminate her service at any time and without assigning any reason. But as is noticed often, such authorities if they choose to terminate the services of a 10 (a) (i) candidate, they could do so without assigning reason. But if the order of dispensation of service prima facie intends to cast any stigma on the conduct of the Government servant or projects a reason for the termination of such service based upon her behaviour in the institution when she was in the course of temporary service, then it becomes necessary for the said authorities to enquire into the allegation after giving an opportunity to the person affected and thereafter pass such orders as they deem fit. But so long as the order is silent and as long as it satisfies the letter and spirit of Rule 10 (a) (v) of the general rules, such an order cannot be removed by the issue of a rule of certiorari.

7. A similar principle was adopted by the Supreme Court in an analogous situation in State of U.P. v. Sri Shyam Lal Sharma (1971) 2 S.C.W.R. 307. A head constable was compulsorily retired on the recommendation which appeared in the files that he was considered to be a bad lot, incorrigible and no longer useful. But the order of compulsory retirement on the face of it did not disclose any stigma, imputation or penalty. The head constable filed a civil suit for a declaration that the order of removal was void and illegal, as no enquiry was conducted and as the foundation of the order was the earlier recommendation of the head of the department. The trial Court agreed with the contentions and decreed the suit. Even so, the Allahabad High Court agreed with the Government servant and dismissed the appeal preferred by the State of Uttar Pradesh against the decree passed by the original Court. On a further appeal to the Supreme Court, the learned Judges laid down certain propositions. Firstly, they said that in ascertaining whether the order of compulsory retirement is one of punishment, it has to be ascertained whether in the order of compulsory retirement there was any element of charge or stigma or imputation or any implication of misbehaviour or incapacity against the officer. Secondly, the order will be indicative of punishment if the order will involve loss of benefits already earned. Thirdly such an order will not be held to be an order in the nature of punishment on the ground that there is possibility of loss of future prospects. After thus enunciating the principles, the learned Judges went on to say that where there are no words in the order of compulsory retirement which throws any stigma, there should not be any enquiry into Government files to discover whether any remark amounting to stigma could be found in the files. The reason is that it is an order of compulsory retirement which alone should be examined for purposes of the case.

8. Learned Counsel for the petitioner, however, relied upon a decision of the Supreme Court in State of Bihar v. S.B. Mishra : (1970)IILLJ440SC . That was a case where a Government servant was holding a substantive post as a sergeant in the police force in the State of Bihar. He was promoted to officiate in a higher post of Subedar. Thereafter he was again promoted to officiate temporarily as Subedar-Major. Due to an incident which happened between the Government servant and his orderly, he was reverted to the substantive rank of sergeant without any enquiry. The question which came up for determination was whether the reversion of the respondent from the post of an officiating Subedar-Major was made in circumstances which would attract the applicability of Article 311 (2) of the Constitution. The Supreme Court was of the view that in the peculiar circumstances of that case and having regard to the antecedents of the subject-matter it can-not be said that the Court is precluded from looking into the details of such-antecedents or the incidents prior to the impugned order so as 10 find out whether the misconduct is a mere motive or is the very foundation of the order. The learned Judges, however, quoted with approval the decision of the Supreme Court in State of Punjab v. Sukh Raj Bahadur : (1970)ILLJ373SC . In that case, Mitter, J., delivering the judgment of the Supreme Court held inter alia that the services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.

9. It is therefore clear that in the case of a temporary Government servant, the conditions of service would prevail and even otherwise the order terminating the services of temporary Government servants, if it does not cast any stigma or imputation, cannot be judicially scrutinised by a Court to find whether such an order of termination is motivated or designed.

10. Learned Counsel for the petitioner referred to a Memo. No. 5215/71 dated 21st September, 1971. That memo relates to discharge of candidates appointed under General Rule 10 for want of vacancy. In such cases the junior in service should be discharged first. But in the instant case I cannot assume that the discharge of the temporary service of the petitioner was for want of vacancy because the order does not say so. This memo therefore is not applicable to the facts of this case.

11. It is in the above view I am unable to consider the various incidents referred to by the petitioner in her affidavit so as to find whether the foundation for the impugned order is the earlier misunderstanding between the head of the institution and the petitioner. So long as these incidents are not even adverted to in any manner in the order challenged, a probe into such details which could be gathered only from the files produced on the issue of a rule nisi should not normally be undertaken. A fortiori in a case where .the dispensation of service relates to a temporary Government servant, the Court should have regard to the conditions of service attached to such temporary servants and if the rule says that he could be dispensed with at any time without assigning any reason, it would be inequitable to insist and demand for a reason and an incidental enquiry into the regularity, truthfulness or properiety of such reason. I am therefore not inclined to hold that the order challenged suffers from any error apparent or apparent error of law or has been passed without jurisdiction. This writ petition is therefore dismissed. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //