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K. Nallandram Pillai Vs. M.S. Natesan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1967)2MLJ347
AppellantK. Nallandram Pillai
RespondentM.S. Natesan and anr.
Cases ReferredIn Ratnaswami Padayachi v. Mani
Excerpt:
- .....revenue department, madras, and to quash the order appointing the first respondent as the village headman.2. sri v. marutha pillai, permanent village headman of pothanur village, died on 23rd november, 1961. applications were called for the post and the petitioner, nallandram pillai, one natesan, the first respondent herein and manivacagam applied. in this writ petition we are not concerned with manivacahagam. therefore, he may be left out of account. the revenue divisional officer, by his order, dated 22nd july, 1962, found that the petitioner was the best qualified candidate for the post. he found that the petitioner was worth rs. 2,74,400 whereas the first respondent was worth only rs. 77,000 and as a man of property, he should be selected for the post and as no discretion is.....
Judgment:
ORDER

P.S. Kailasam, J.

1. This petition has been filed by one of the applicants to the post of a Village Headman at Pothanur Village for the issue of a Writ of certiorari, to call for the records from the Secretary to Government, Revenue Department, Madras, and to quash the order appointing the first respondent as the Village Headman.

2. Sri V. Marutha Pillai, permanent Village Headman of Pothanur Village, died on 23rd November, 1961. Applications were called for the post and the petitioner, Nallandram Pillai, one Natesan, the first respondent herein and Manivacagam applied. In this writ petition we are not concerned with Manivacahagam. Therefore, he may be left out of account. The Revenue Divisional Officer, by his order, dated 22nd July, 1962, found that the petitioner was the best qualified candidate for the post. He found that the petitioner was worth Rs. 2,74,400 whereas the first respondent was worth only Rs. 77,000 and as a man of property, he should be selected for the post and as no discretion is given to the appointing authority, the petitioner should be selected. On appeal by the first respondent, the District Revenue Officer set aside the order of the Revenue Divisional Officer and remanded the case back for fresh enquiry and disposal. The District Revenue Officer observed that the Revenue Divisional Officer has not given sufficient and adequate weight to the other qualification in selecting the persons for the post of a Village Headman and the interpretation of the rule that the person who has the highest property qualification should be appointed was not correct. The District Revenue Officer also directed that the experience of a person as a Village Headman should be considered. After remand the Revenue Divisional Officer considered the comparative merits of the petitioner and the first respondent and again appointed the petitioner as the Village Headman. The reasons, which weighed with him were that the petitioner has the highest property qualification and that the plea of the first respondent that he had acted as the Village Headman and acquired greater experience need not be given much weight, as the acting experience he gained was by sheer unforeseen circumstances. On appeal, the District Revenue Officer confirmed the appointment of the petitioner by the Revenue Divisional Officer. In his order, the District Revenue Officer considered the claim of the first respondent on the ground that he had acted as the Village Headman for a longer period. The District Revenue Officer observed that the post virtually fell vacant from 1959 on account of the last office holder's applying for medical leave for a long time before his death. In 1960 the petitioner applied to the Tahsildar for the acting Village Headman's post, but the application was returned with the endorsement that there was no vacancy. He accepted the plea put forward on behalf of the petitioner that certain peculiar circumstances were responsible for the first respondent earning some experience and that it should not be taken into account for the appointment of a permanent Village Headman. The District Revenue Officer also was of the view that the experience gained by the first respondent by stop-gap arrangement should not be taken into account. In support of this view, he relied on the observation of the Board of Revenue relating to the appointment of a Village Headman in a different village. The Board of Revenue in that case stated that the experience gained by a Village Headman by stop-gap arrangement or temporary arrangement, due to certain circumstances facilitating such Village Headman to take up such temporary posts, should not be taken into account. The first respondent preferred an appeal to the Board of Revenue. The Board of Revenue in revision observed that the only issue of relevance in the case was whether the experience gained in such stop-gap arrangement by the first respondent should be given due weight or not. The Board was of the view that such experience should not be taken into consideration as it would be open to abuse at lower level. The first respondent preferred a revision against this order to the Government and the Government issued a show cause notice to the petitioner asking him to show cause why the first respondent should not be preferred as the Village Headman, as the first respondent was worth more than the required amount. The petitioner showed cause against the notice and the Government by its order, dated 29th April 1965 allowed the revision petition and appointed the first respondent as the Village Headman. The Government took the view that the appointment of the petitioner on the ground that he possesses the highest property qualification is discriminatory in character and is therefore vitiated by illegality. Regarding the experience gained by the first respondent, the Government took the view that the Board was not in order when it based its conclusion on the existence of the ruling by the Board to the effect that weight should not be given to stop-gap experience. Against the order of the Government, the present writ petition is filed.

3. Mr. R.M. Seshadri, learned Counsel for the petitioner, challenged the validity of the order mainly on three grounds. He submitted that there could be no second revision to the Government by the respondent, as the Board had already entertained a revision petition. Secondly he submitted that the petition filed to the Government was out of time and should have been dismissed in limine. Thirdly, he contended that the Government acted without jurisdiction, in that the order is vitiated by illegality, material irregularity, obvious error resulting in miscarriage of justice or want of jurisdiction.

4. Standing Order 156(3) provides for appeals against orders of appointment. Claimants to the village office are allowed a single appeal against a single order of appointment; but where the order of the Divisional Officer appointing a particular person is set aside by the Collector and another person is appointed, an appeal to the Board by the person prejudicially affected by the Collector's order will be allowed. Thus in this case, as the appointment of the petitioner was made by the Revenue Divisional Officer, and confirmed by the District Revenue Officer, the first respondent has no right of appeal to the Board of Revenue. But Standing Order 156-A (1) provides a right of revision, and, is in the following terms:

Notwithstanding anything contained in Standing Order No. 156(3) and (4), the Government in respect of an order passed by the Board of Revenue and the Board of Revenue in respect of an order passed by any authority subordinate to it, may either suo motu or on the application of an aggrieved party and for reasons to be recorded in writing, annul, modify, reverse or remit for reconsideration such order on any of the following grounds, namely:

(i) that the order is vitiated by illegality, material irregularity, obvious error resulting in miscarriage of justice or want of jurisdiction; or

(ii) that the Board of Revenue or any authority subordinate to it, as the case may be, has acted in contravention of any existing instructions on the subject or has failed to exercise jurisdiction vested init...

The other sub-sections are not relevant. Sub-section (3) provides that 'an application which does not satisfy any of the grounds specified in items (i) to (iv) of Clause (1) or which is made more than sixty days after the date of the receipt of the order against which it is made shall be rejected in limine.

5. According to the learned Counsel for the petitioner, as the appointment of the petitioner was made by the Revenue Divisional Officer and confirmed by the District Revenue Officer, the first respondent has no right of appeal, but right to prefer a revision to the Board of Revenue and when the Board has disposed of the matter, it is contended that no second revision is permissible to the Government. There are no words which confine the right to one revision, for what is stated is 'the Government in respect of an order passed by the Board of Revenue and the Board of Revenue in respect of an order passed by any authority subordinate to it' may entertain a revision petition. The power of the Government to interfere or to revise the order of the Board of Revenue is unrestricted and cannot be confined to an order passed by the Board of Revenue on appeal. This contention therefore, has to be rejected.

6. Secondly, it was contended that the petition which was preferred to the Government is barred by limitation and as such should have been dismissed in limine. Standing Order 156-A(3) makes it incumbent on the revisional authority to reject any petition which is received more than 69 days after the date of the receipt. In this case, the order by the Board of Revenue was passed on 23rd July, 1963 and was despatched on 24th July, 1963. There is nothing to indicate on what date the first respondent received the order. The revision before the Government was filed on 3rd October, 1963. In the affidavit in support of the writ petition, the petitioner has alleged that the petition to the Government of Madras was barred, as it was filed 60 days after the date of the receipt of the order. The first respondent generally denied the allegation. But he did not disclose on what date he received the order of the Board of Revenue. In the petition, which is filed before the Government, the first respondent did not state anything about the petition being within time or out of time. On the dates disclosed, it appears that the petition was filed after sixty days. In this writ petition the petitioner has alleged that the Government had no power to entertain the revision petition after 60 days from the date of the receipt of the order. The first respondent in his counter affidavit has stated that there was no question of any delay or condonation of delay. The first respondent has not given the date on which he received the order, apart from stating that the objections regarding the delay in filing was not raised before the Government and therefore, the petitioner is not entitled to raise the question in this writ petition. The date on which the first respondent received the order has not been given and how the petition is in time has not been explained in the order of the Government. Under the Board Standing Order 156-A (3), an application which is made more than 60 days after the date of the receipt of the order, shall be rejected in limine. The Government before entertaining the revision petition ought to have considered the question whether the petition was within time or not and if it was not within time, it ought to have rejected the petition. As there is nothing on record to indicate, the Government has considered this question, the matter will have to be sent back to the Government for considering the question whether the petition was within time.

7. Mr. R.M. Seshadri, the learned Counsel for the petitioner submitted that in the show cause notice issued by the Government, dated 20th June, 1964, the petitioner was asked to show cause why the first respondent should not be appointed on two grounds. Firstly, the first respondent had property worth more than the required amount and secondly he is much younger than the petitioner and that it was advisable to have younger people for the post. The petitioner was not asked to show cause as to why the first respondent should not be appointed on the ground-that the Revenue Divisional Officer, District Revenue Officer, and the Board of Revenue were in error in not taking into consideration the experience gained by the first respondent by acting in that post. In his reply to the show case notice the petitioner submitted his explanations regarding the grounds mentioned by the Government, namely, about the property qualification of the first respondent and his youth. In his reply there is no mention about the experience gained by the first respondent by acting as a Village Headman. The contention of the learned Counsel for the petitioner is that if the show cause notice had only referred to the question of experience gained by the first respondent, he would have given his reasons as to why the experience gained by him should not be taken into account. In fact it was contended before the District Revenue Officer and the Board of Revenue, that this period should not be taken into account, as though the petitioner applied for the temporary vacancy, he was not given a chance to act and that the accident of the petitioner having had a chance to act should not be given any undue weight. As the show cause notice did not direct the petitioner to explain as to why the experience gained by the first respondent should not have been taken into consideration, the petitioner had no reasonable opportunity of showing cause against it. It was contended by the learned Counsel for the first respondent that in his memorandum of grounds, a copy of which was sent to the petitioner, reliance was placed on the experience gained by the first respondent. Though the memorandum of grounds mentioned this aspect, the petitioner was not called upon to give his explanation regarding this aspect in the show cause notice. I agree with the learned Counsel for the petitioner that no reasonable opportunity was given to the petitioner, before the Government took into consideration the experience gained by the first respondent.

8. The Government reversed the order of the Board of Revenue mainly on two grounds. Firstly, that the appointment of the petitioner on the ground that he possesses highest property qualification is discriminatory in character and therefore, vitiated by illegality. The Revenue Divisional Officer took into consideration the property qualification and found that the petitioner indisputably had the highest property qualification, and, in accordance with Board Standing Order No. 155(ii), the petitioner as a man of property was selected for non-hereditary post. The District Revenue Officer considered the contention of the parties that the petitioner owned property worth about three lakhs of rupees, whereas the first respondent was worth only about Rs. 75,000. The District Revenue Officer came to the conclusion that the respondent had superior qualification in all respects. That the petitioner has highest property qualification as between the applicants cannot be disputed. Selecting a person, who has greater property qualification is not contrary to the rules. Though it does not follow that the person with higher property qualifications should alone be selected, the possession of higher property qualification cannot operate as a disqualification. The Government is not right in its observations that the appointment of the petitioner on the ground that he possesses the highest property qualification is discriminatory in character. The second ground on which the Government reversed the order of the Board of Revenue is that the Board in the absence of specific provision in Board's Standing Orders that the previous experience gained as temporary Village Headman, should not be given weight relied on the existence of a ruling by the Board that experience gained by the stop-gap arrangement should not be taken into account. Apart from the objection to the Government relying on this ground without asking the petitioner to show cause, I do not think that the order of the Board of Revenue based on its opinion that the experience gained by acting in a stop-gap vacancy should not be taken into account is revisable by the Government under Board Standing Order 156-A. The power of revision is exercisable only on the grounds mentioned in the Standing Order, namely; 'that the order is vitiated by illegality, material irregularity, obvious error resulting in miscarriage of justice or want of jurisdiction' or 'that the Board of Revenue or any authority subordinate to it, as the case may be, has acted in contravention of any existing instructions on the subject or has failed to exercise jurisdiction vested in it '. The learned Counsel for the first respondent submitted that the order of the Government can be supported on the ground that the order of the Board of Revenue is vitiated by obvious error resulting in miscarriage of justice. It was not challenged on any other ground, namely, that it is vitiated by illegality, material irregularity, or want of jurisdiction. The only question is, whether the order of the Board is vitiated by obvious error resulting in miscarriage of justice.

9. In Raman & Raman Ltd. v. Government of Madras (1956) 1 M.L.J. 169 : (1956) S.C.J. 368, the Supreme Court had to consider the scope of the words, legality, regularity or propriety of an order which would entitle the State Government to interfere under Section 64-A of the Motor Vehicles Act. In construing the word 'improper' which is of wider import than the words used in Standing Order 156-A, the Court held that the propriety of an order does not mean that it must be a correct order and that there must be something extraneous to the order itself which made it improper. To enable the authority to interfere on the ground that the order is improper, it is not sufficient that the order is not the correct one, but there must be something extraneous to the order itself which made it improper. In Ratnaswami Padayachi v. Mani pillay I.L.R. (1959) Mad. 380 : (1959) 1 M.L.J, 201, this Court considered the scope of the words used in Board Standing Order No. 156-A. Referring to the words 'obvious error resulting in miscarriage of justice', the Court observed 'that the Government travelled beyond the limits of their jurisdiction in holding that on the merits the appellant was better qualified for the office than the respondent'. The Court held 'that it was not open to the Government to make comparative estimate of the qualifications of the candidates and to decide in favour of the candidate, who, according to them, was the best qualified.' It is clear therefore that under Board Standing Order 156-A it is not the function of the Government to make comparative estimate of the qualification of the candidates and to select a person who according to it is best qualified. It can only interfere on one of the grounds mentioned in the Board Standing Orders. On the merits, I am unable to say that the Board was in error in refusing to take into account the experience gained by the first respondent by acting as Village Headman. The Board considered this question and observed:.that the experience gained in such stop-gap arrangement made, should not be given undue weight.

The Board also mentioned that if such experience were to be taken into account, it will lead to abuse. The District Revenue Officer elaborately considered the question and took the view that the experience gained by the first respondent was due to certain circumstances, which were helpful to him but denied to the petitioner. In coming to the conclusion, no doubt the District Revenue Officer relied on the view taken by the Board of Revenue in the appointment of Village Headman, Avadathur Village. The refusal of the Board of Revenue to give undue weight to experience under the circumstances of the case cannot be considered erroneous, Even otherwise it is not one of the circumstances which would justify the Government to interfere by exercising its powers of revision under Board Standing Order 156-A.

10. In the result, the order of the Government will have to be quashed on the grounds, namely, that it failed to consider whether the petition filed by the first respondent was within time, that it failed to give a reasonable opportunity to the petitioner to show cause as to why it should not revise the order of the Board of Revenue, on the ground that it had taken into account the experience gained by the first respondent and that it had acted beyond its powers under Section 156-A of the Board Standing Order. The order of the Government is quashed and the writ petition is allowed with costs payable by the first respondent; Counsel fee Rs. 200.


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