IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.12.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.45168 of 2006 (O.A.No.6894 of 2000) V.Anbazhagan .. Petitioner Vs. 1. The State of Tamil Nadu rep.by its Secretary to Government Revenue Department Secretariat, Chennai 9 2. The District Collector Perambalur District 3. The Revenue Divisional Officer Udayarpalayam Perambalur District .. Respondents Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the proceedings in Na.Ka.No.A1/863/96 dated 29.8.2000, 29.4.2010 and 3.5.2010 of the Revenue Divisional Officer, Udayarpalayam, Perambalur District, the 3rd respondent herein and quash the same and to direct the respondents to issue orders permitting the petitioner to retire from the post of Village Administrative Officer on reaching the age of superannuation on 30.4.2010 AN with all attendant benefits and to settle the retiral and pensionary and other benefits arising out of his service rendered. (Prayer amended as per order dated 8.12.2010 in M.P.No.1 of 2010) For Petitioner :: Mr.R.Muthukannu For Respondents :: Mr.R.Murali, G.A. https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner originally filed O.A.No.6894 of 2000 before the Tribunal challenging the order dated 29.8.2000. By the said order, the 3rd respondent Revenue Divisional Officer, Udyarpalayam, Perambalur District dismissed the petitioner from service on the ground that on the date of appointment of the petitioner as a Village Administrative Officer of Kodangudi Village, Udayarpalayam Taluk, he did not possess the necessary educational qualification and his appointment was irregular as the District Collector as well as the Secretary of the Revenue Department had directed them to pass appropriate orders. 2. The Tribunal vide its order dated 18.9.2000 granted an interim-stay. Subsequently the said order came to be continued without specifying any time limit by a further order dated 12.9.2000. Though the Department filed M.A.No.4510 of 2001 seeking to vacate the interim order, for the reasons best known, the Tribunal did not take up the application and allowed the stay to be continued. 3. On behalf of the respondents, a counter affidavit dated 24.4.2000 was filed before the Tribunal. 4. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P.No.45168 of 2006. After the matter was listed before this Court, the respondents realizing that the petitioner was to retire from service on the basis of the normal course of age of superannuation on 30.4.2010, passed an order on 29.4.2010 once again placing the petitioner under suspension. Subsequently, cancelling the said order, another order dated 3.5.2010 was passed and it was stated that since the matter is pending before this Court, the petitioner was once again dismissed from service on the very same reason which was stated in the original order of removal. The petitioner aggrieved by the subsequent order had filed M.P.Nos. 1 and 2 of 2010 seeking to challenge the subsequent order as well as permitting him to raise additional ground, which was granted by this Court today. 5. It is unnecessary to travel into the rival contentions in terms of the view to be taken by this Court. It is suffice to state that the petitioner was working as a Village Munsiff in Pichanur Village. During 1990 the State Government by way of an Ordinance 10/1980 abolished the post of Part time Village Munsiff. https://hcservices.ecourts.gov.in/hcservices/ The said amendment came to be challenged before this Court as well as before the Supreme Court. The Supreme Court upheld the amendment but also gave a direction to the State Government to absorb such of those qualified persons in the full time post of Village Munsif (renamed as Village Administrative Officer). 6. The petitioner staked his claim for being considered for the said post. As he had educational qualification of being SSLC failed in the old pattern having 11th Standard, he filed an application before the Tribunal being O.A.No.699 of 1994 for consideration of his case. Along with the Original Application, he also enclosed a letter of the Tamil Nadu Public Service Commission addressed to the Director of School Education, wherein clarification was issued that candidates, who appeared and failed in SSLC old pattern of regular schooling can be taken to have possession of the general educational qualification other than the qualification prescribed for entry into public service irrespective of the marks obtained by them. Though the Government has frowned upon, it is found that the petitioner was given appointment order on the basis of the direction issued by the Tribunal. Then the District Revenue Officer, Tiruchirapalli allotted the petitioner to Ariyalur Division to be appointed as Village Administrative Officer vide proceedings dated 23.3.1995. 7. The petitioner was working as Athukurichi Village Administrative Officer by the consequential posting order given by the Revenue Divsional Officer dated 17.4.1995 under Rule 10(a)(i) of the General Rules. The petitioner also joined duty as Village Administrative Officer on 20.4.1995 and he has been continuing in the said post. His services were also regularised by the Revenue Divisional Officer on 29.11.1996. Subsequently, the District Revenue Officer by order dated 28.2.1997 cancelled the regularisation and the Revenue Divisional Officer by the order dated 29.8.2000 directed the petitioner to be dismissed from service with immediate effect as per the orders of the Government dated 23.5.2000. It is against this dismissal, the petitioner moved the Tribunal and obtained an interim order. He continued to work on the strength of the interim order till the date of his superannuation, namely 30.4.2010. 8. Therefore, the only question to be decided in the present Writ Petition is whether the order passed by the Government followed by the impugned order of the 3rd respondent is legally justified and constitutionally permissible. 9. On the grounds raised in the Original Application, elaborate arguments were addressed by referring to several https://hcservices.ecourts.gov.in/hcservices/ citations of this Court as well as the Supreme Court as to how the said order is invalid. It is suffice to indicate that in paragraph 6.4.d, right of hearing was emphasized by the petitioner. In the additional ground raised in M.P.No.2 of 2010, once again exception was taken for the retrospective dismissal order made by the respondents. 10. In the counter affidavit filed before the Tribunal, on behalf of the respondents, it was stated that the respondents have not followed any fair play and there is no violation of principles of natural justice as per the departmental proceedings. It is also claimed that the petitioner was not in possession of minimum general educational qualification and his name was considered only on the directions of the Tribunal and such consideration could have been done only when the petitioner had necessary qualification. 11. In the light of the rival contentions, it has to be seen whether the dismissal order is legally valid and constitutionally permissible. It is needless to state that the post of Village Administrative Officer belongs to a constituted service created under Article 309 of the Constitution and governed by the Tamil Nadu Civil Services (Discipline and Appeal) Rules. In the present case, subsequent to the direction issued by the Tribunal, the petitioner was regularly appointed and his service was also regularised by the competent authority. If at all, the respondents could have found out whether the petitioner was having minimum general educational qualification before acquiring any permanency on the post. Having failed to do so and having allowed him to continue, they cannot suddenly wake up and pass the impugned order and that too on the basis of the instructions issued by the Government. 12.Under the circumstances, Mr.R.Muthukannu, learned counsel for the petitioner brought to the notice of this Court a recent judgment of the Supreme Court in Kamal Nayan Mishra vs. State of Madhya Pradesh and others reported in (2010) 2 SCC 169 and also referred to the following passage found in paragraphs 20 to 24: "20. The learned counsel for the respondents drew our attention to the instructions to the employees in the preamble to the attestation form and the undertaking contained in the verification certificate by the employee at the end of the attestation form, which puts him on notice that any false information could result in termination of his service without enquiry. It is contended that as the attestation form stated that an employee could be terminated without notice, if he https://hcservices.ecourts.gov.in/hcservices/ furnishes false information, the employee is estopped from objecting to termination without notice. The said contention may merit acceptance in the case of a probationer, but not in the case of a confirmed government servant. 21. No term in the attestation form, nor any consent given by a government servant, can take away the constitutional safeguard provided to a government servant under Article 311 of the Constitution. 22. A seven-Judge Bench of this Court held in Moti Ram Deka v. North East Frontier Railway, as follows while negativing a contention that a person who enters service by executing a contract containing a rule contrary to Article 311, with open eyes, cannot be permitted to challenge the validity of the said rule or the contract. "31. ... In our opinion, this approach may be relevant in dealing with purely commercial cases governed by rules of contract; but it is wholly inappropriate in dealing with a case where the contract or the Rule is alleged to violate a constitutional guarantee afforded by Article 311 (2);.. 32. Let us then test this argument by reference to the provisions of Article 311(1). Article 311(1) provides that no person to whom the said article applies shall be dismissed or removed by an authority subordinate to that by which he was appointed. Can it be suggesed tht the Railway Administration can enter into a contract with its employees by which authority to dismiss or remove the employees can be delegated to persons other than those contemplated by Article 311(1)? The answer to this question is obviously in the negative, and the same answer must be given to the contention that as a result of the contract which embodies the impugned Rules, the termination of the railway servant's services would not attract the provisions of Article 311(2) though, in law, it amounts to removal". 23. We also find from an examination of the terms of the attestation form that termination without notice or inquiry was contemplated only in the context of https://hcservices.ecourts.gov.in/hcservices/ furnishing false information in and around the time of the appointment. Note (1) of the preamble warns that: "the furnishing of false information or suppression of any factual information in the attestation form would be a disqualification and is likely to render the candidate unfit for employment." Similarly, the certificate at the end of the attestation form states that "I am not aware of any circumstanceswhich might impair my fitness for employment under the Government. I agree that if the above information is found false or incomplete in any material respect, the appointing authority will have a right to terminate my services without giving notice or showing cause." Be that as it may. 24. The termination of the appellant without an inquiry or hearing was illegal and invalid. In the normal course, we would have set aside the termination and directed reinstatement with consequential benefits, reserving liberty to the employer to initiate disciplinary proceedings. But the peculiar facts of this case require us to adopt a slightly different approach to do complete justice between the parties. 13. The above passage cited by the learned counsel for the petitioner fully supports his case. When the petitioner having been appointed as regular Government servant has protection under Article 311(2) of the Constitution before any penalty is imposed on him, which are set out in the said Article. 14. Though the learned Government Advocate tried to bring judgments to state that if the initial appointment is invalid, then there is no further notice required but the case cited by the learned counsel also arose out of cancellation of appointment on the ground that the community certificate produced by the concerned individual was found to be false by the Committee appointed by the Supreme Court pursuant to the judgment in Madhuri Patil Vs. Additional Commissioner, Tribal Development, AIR 1995 SC 94, wherein the Supreme Court directed the State Level Committee to go into the veracity of the claim made by the persons relating to the Community Certificate and therefore the Supreme Court itself directed the State Level Committee while cancelling the Community Certificate, need not issue further notice to the Government servant, who secured entry with the bogus caste's https://hcservices.ecourts.gov.in/hcservices/ Certificate. It is not clear as to how those judgment has any relevance to the case on hand. 15. It is also relevant to refer to another judgment of the Supreme Court in Rajasthan State Road Transport Corporation and another vs. Bal Mukund Bairwa (2) reported in (2009) 4 SCC 299. In the said judgment, in paragraphs 34 and 35, the Supreme Court held as follows: "34. The appellant, as noticed hereinbefore, is State within the meaning of Article 12 of the Constitution. If an act on its part is found to be wholly unreasonable or arbitrary, the same would be violative of Article 14 of the Constitution of India. In certain situations, even gross violation of the principles of natural justice has been held to come within the ambit of Article 14 (See also Satyavir Singh v. Union of India, DTC v. Mazdoor Congress, Union of India v. Tulsiram Patel and Central Inland Water Transport Corprn.Ltd. v. Brojo Nath Ganguly). 35. Any order passed in violation of the principles of natural justice save and except certain contingencies of cases, would be a nullity. In A.R.Antulay this Court held: ( SCC p.660 para 55) "55. .. No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity." 16. In the light of the above, the Writ Petition stands allowed and the impugned order stands set aside. No costs. However, allowing of the Writ Petition does not mean that the petitioner can escape from the scrutiny of the Government with reference to his qualifications based on the Certificates produced at the time of entry. All that this Court has directed for conducting an enquiry concerning with the principles of natural justice under Article 311(2) of the Constitution read with statutory Rules framed under Article 309. The petitioner cannot take the defence that since he had reached the age of superannuation on 30.4.2010 that no further proceedings can be initiated. In fact realizing the said defense that may be taken, the respondents have passed the order on 30.4.2010 once again dismissing the petitioner with retrospective effect. Though said order is quashed, it is hereby directed that the respondents are permitted to continue the enquiry in accordance with law and the petitioner cannot take the defense when there is no order passed https://hcservices.ecourts.gov.in/hcservices/ by the Government to continue the proceedings since the case has been pending before this court for the last ten years and the petitioner had worked only on the basis of the interim order. It is not open to the petitioner to raise such a defense at any point of time. With this observation, the Writ Petition stands allowed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. ajr To 1. The Secretary to Government of Tamilnadu Revenue Department Secretariat, Chennai 9 2. The District Collector Perambalur District 3. The Revenue Divisional Officer Udayarpalayam Perambalur District 1 cc to Government Pleader, Sr. 88250 1 cc to Mr.R. Muthukkannu, Advocate, Sr. 87839 W.P.No.45168 of 2006 NG (CO) kk 31/12 https://hcservices.ecourts.gov.in/hcservices/