IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.07.2010 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.No.6111 of 2010 & M.P.Nos.1 & 2 of 2010 R.Suresh Kumar ... Petitioner Versus 1. The Commissioner, Panchayat Union, Kollidam, Sirkazhi Taluk, Nagapattinam District. 2. The Block Development Officer, Panchayat Union, Kollidam, Sirkazhi Taluk, Nagapattinam District. 3.Mr.T.Saraboji 4.S.Ravi 5.S.Arivazhagan (R4 & R5 impleaded as per order dated 22.07.2010 in M.P.No.3 of 2010) ... Respondents Writ Petition filed under Article 226 of Constitution of India praying for the issue of a Writ of Certiorari, to call for the records relating to the impugned order passed by the 2nd respondent in Na.Ka.No.3117/09/B-1, dated 18.03.2010 and to quash the same. For Petitioner : Mr.V.V.Sathya for Mr.M.V.Venkata Seshan For R1 : Mr.P.Muthukumar Government Advocate For R2 : Mr.N.Senthilkumar For R4 : Mr.D.Kanaga Sundaram For R5 : Mr.J.Stalin https://hcservices.ecourts.gov.in/hcservices/ ORDER The Petitioner has come before this Court challenging the order passed by the 2nd respondent, by which the 5th respondent is to be transferred to Sothiyakkudi Panchayat as Assistant and in turn Mr.T.Saraboji, the 3rd respondent is to be transferred as Assistant to Alalasundaram Panchayat. Though the impugned order does not name the petitioner, still the petitioner has chosen to challenge this order stating that his right as Assistant in Alalasundaram Panchayat is being taken away. The petitioner states that he was appointed temporarily as Assistant in a regular vacancy from 13.02.2008 to 04.03.2009, in Alalasundaram Panchayat, Sirkazhi Taluk, Nagapattinam District. 2. It is the case of the petitioner that one Mr.Arivazhagan, newly impleaded 5th respondent, was working as Panchayat Assistant and due to his ill-health, he did not attend the services of the Panchayat and therefore, the 4th respondent Panchayat President, by virtue of resolution dated 05.03.2009, appointed the petitioner as Panchayat Assistant in the regular vacancy. The said resolution was also communicated to the 2nd respondent. 3. When things stand so, all of a sudden, the impugned order was passed transferring the 3rd respondent to the Alalasundaram Panchayat, in turn transferring the 5th respondent to Sothiyakkudi Panchayat. Therefore, the petitioner is before this Court challenging the said order, contending that his work as Assistant is affected. 4. Mr.V.V.Sathya representing Mr.M.V.Venkata Seshan, learned counsel for the petitioner submits that the petitioner was newly appointed in the 4th respondent Panchayat as Assistant by virtue of resolution passed on 05.03.2009 and he continues to work as Assistant. In fact the learned counsel referred to the communication dated 05.03.2009 issued by the 4th respondent to the 2nd respondent intimating about the appointment of the petitioner. He referred the communication dated 30.11.2009 written by the 2nd respondent intimating about the works in the Panchayat and that the said communication was addressed to him. 5. Further, the learned counsel referred to G.O.Ms.No.175, Rural Development & Panchayat (E5) Department, dated 05.12.2006, which says that the power of appointment lies with the Panchayat President and when such is the position, his appointment cannot be said to be invalid. 6. Learned counsel for the 4th respondent submitted that since the 5th respondent did not report to the work, the 4th respondent was compelled to appoint the petitioner as Assistant. Therefore, the petitioner was validly appointed by the 4th respondent Panchayat by https://hcservices.ecourts.gov.in/hcservices/ way of resolution and therefore, no illegality could be attributed regarding petitioner's appointment by the 4th respondent. 7. A perusal of the records would show that earlier Mr.Arivazhagan, the 5th respondent was appointed and he has been working as Assistant in Alalasundaram Panchayat. No doubt, the G.O.Ms.No.175, Rural Development & Panchayat (E5) Department, dated 05.12.2006 gives powers to the Panchayat President to make an appointment and however, it is subject to the approval of the Block Development Officer. Page No.2 of Annexure attached to the aforesaid G.O.Ms.No.175, Rural Development & Panchayat (E5) Department, dated 05.12.2006 under Clause V speaks about the qualification for appointment of Assistant Clause V(M) states as follows:- "M) ve;j Cuhl;rpf;F gzp epakdk; bra;ag;gLfpwnjh me;j Cuhl;rpapy; trpg;gtuhf ,Uf;f ntz;Lk;/" 8. The affidavit filed by the petitioner would reveal that he is residing at Kadaikan Vinayaga Nallur, Sirkazhi Taluk, Nagapattinam District, whereas the appointment relates to Alalasundaram Panchayat. Therefore, at the outset itself, the petitioner's alleged appointment is invalid, as he is from other Village. Therefore, the appointment itself is contrary to Government Order. 9. Assuming for a moment that the petitioner has got a right to continue as Assistant, this Court has to see as to whether the person namely, the 5th respondent who was already in service, was validly removed. Counter Affidavit filed by the 4th respondent would show that the 5th respondent was unable to attend the work because of his ill-health and therefore, the 4th respondent appointed the 5th respondent. Before appointment, it is the bounden duty of the 4th respondent to remove the serving servant according to due process of law. Admittedly, no proceedings was taken against the 5th respondent to remove him from the post of Assistant. That is the reason why the impugned order of 2nd respondent recognises the 5th respondent as Panchayat Assistant. Even as per the counter affidavit filed by the 4th respondent, no such action was taken by the 4th respondent. Apart from that, there is no approval from the Block Development Office for the appointment of petitioner. The alleged appointment made in favour of petitioner is alleged to have been sent by the 4th respondent to the 2nd respondent and no approval has been granted. The communication dated 30.11.2009 sent by the 2nd respondent regarding works in the Panchayat would not amount to approval of petitioner's appointment. 10. In these circumstances, this Court has come to the following conclusions:- (i) The 5th respondent was validly appointed as Assistant in the Panchayat and he continues to be in service. (ii) The 5th respondent was not removed from the post of Assistant in the Alalasundaram Panchayat as per law. https://hcservices.ecourts.gov.in/hcservices/ (iii) When he is not validly removed, the 5th respondent is in the service of the Panchayat. (iv) As the 5th respondent is in the service, there cannot be any appointment in the place of 5th respondent in favour of the petitioner by the 4th respondent. (v) The alleged appointment in favour of the petitioner has been made without approval of the Block Development Officer and contrary to Government Order and therefore, the said order is also not valid. (vi) There is no vacancy for the post of Assistant in the Panchayat to appoint the petitioner. (vii) As the petitioner was not validly appointed, there is no right accrued to him and there is no question of any infringement of right by the transfer order. (viii) The impugned order itself would show that the Block Development Officer has not approved the appointment of the petitioner. (ix) The impugned order in fact recognises the continuation of 5th respondent as Assistant in the Alalasundaram Panchayat. 11. Therefore, the contention of the petitioner is liable to be rejected and he has got no locus standi to challenge the impugned order. The impugned order is validly passed transferring the 5th respondent to Sothiyakkudi Panchayat and the 3rd respondent to Alalasundaram Panchayat. Therefore, the claim of the petitioner is liable to be rejected and the Writ Petition liable to be dismissed. 12. As far the the conduct of 4th respondent, the Panchayat President is concerned, this Court is constrained to observe as follows:- The Panchayat President who is the elected head of the Village Panchayat, has not acted according to the procedure. The proceedings referred to above would go to show that, the 4th respondent has got animosity towards the 5th respondent and that was the reason why the 5th respondent is sought to be removed from service by indirect way without following due process of law. Without any sanction from Block Development Office, he appointed the petitioner contrary to the G.O.Ms.No.175, Rural Development & Panchayat (E5) Department, dated 05.12.2006, which speaks about the appointment of a person as Assistant hailing from the same Village. As found earlier, the petitioner does not belongs to the same Panchayat namely, Alalasundaram Panchayat. 13. It is also seen that the 5th respondent's rights have been violated by the 4th respondent by his illegal and highhanded act. The 4th respondent, behind the back of the 5th respondent, appointed the petitioner contrary to law. A representative, elected by the people, is supposed to go by the law. If the elected representative acts contrary to law violating the Act/Rule, it would go against the https://hcservices.ecourts.gov.in/hcservices/ very purpose of the Tamil Nadu Panchayat Act, 1994. When power is given to do certain things in certain way, it should be done in the same way and the same has been declared in Nazir Ahmed Vs. King Emperor reported in AIR 1936 P.C. 253 and Indian Bank Association Vs. Devkala Consultancy Services reported in 2004 (11) SCC 1. It is seen the 4th respondent abused power conferred upon him to appoint Assistant in the Panchayat. 14. It is well settled position of law, that this Court can grant an appropriate Writ; Direction or Order under Article 226 of the Constitution of India according to facts and circumstances of the case. It has been held by three Judge Bench of the Hon'ble Supreme Court in Dwaraka Nath Vs. Income Tax Officer, Special Circle, D.Ward, Kanpur and Another reported in AIR 1966 SCC 81, that Article 226 is deliberately couched in comprehensive language, so that it confers wide power on High Court to reach injustice wherever it is found. The above is followed in Secretary cannanore District Muslim Educational Association, Kanpur Vs. State of Kerala and Others reported in 2010 (5) SCALE 184. 15. Power is conferred upon this Court under Article 226 to reach injustice wherever it is found and to set right mistakes. Since injustice was found to be done to the 5th respondent, this Court can set right the same and grant relief, even the aggrieved party has not filed the case seeking relief. The relief is given to 5th respondent in the Writ filed by the petitioner while denying relief to the petitioner. Though, the petitioner filed the above Writ Petition, the facts and circumstances of the case require issuance of a Writ of Mandamus, declaring that the 5th respondent continues as Assistant of the Panchayat now transferred to Sothiyakudi Panchayat. The 5th respondent is directed to join Sothiyakudi Panchayat. . 16. With the above directions, granting relief to 5th respondent, the Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar smn To 1. The Commissioner, Panchayat Union, Kollidam, Sirkazhi Taluk, Nagapattinam District. https://hcservices.ecourts.gov.in/hcservices/ 2. The Block Development Officer, Panchayat Union, Kollidam, Sirkazhi Taluk, Nagapattinam District. 1 cc To Mr.M.V.Venkataseshan, Advocate, SR.53073 1 cc To Mr.D.Kanagasundaram, Advocate, SR.53074 2 cc To Mr.N.Senthilkumar, Advocate, SR.53283 W.P.No.6111 of 2010 MG (CO) RH (18.8.10) https://hcservices.ecourts.gov.in/hcservices/