Madras High Court
N.Anantha Jothi vs The State Represented By on 16 September, 2022
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
W.P.(MD)No.18626 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.09.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.18626 of 2020
and
W.M.P(MD)No.15581 of 2020
N.Anantha Jothi ... Petitioner
Vs
1.The State represented by
Its Secretary to Government,
Rural Development and Panchayat Raj Department,
Secretariat,
Chennai – 9.
2.The Director of Rural Development
and Panchayat Raj,
Directorate of Rural Development
and Panchayat Raj,
Panagal Building,
Chennai – 600 015.
3.The District Collector,
Virudhunagar District,
Virudhunagar.
4.The Personal Assistant to
District Collector (Development),
Office of the Collector Office Campus,
Virudhunagar District,
Virudhunagar.
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W.P.(MD)No.18626 of 2020
5.The Assistant Director of
Rural Development (Panchayat),
Office of the Assistant Director of
Rural Development,
Virudhunagar,
Virudhunagar District.
6.The Block Development Officer (Village Panchayat),
Office of the Block Development Officer,
Kariapatti,
Virudhunagar District.
7.The President,
P.Pudupatti Panchayat,
Pudupatti Post,
Kalkurichi,
Virudhunagar District.
8.The President,
D.Kadamangulam Panchayat,
Kariapatti Panchayat Union & Taluk,
Virudhunagar District. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, to call for the records
relating to the impugned order passed by the sixth respondent in his
proceedings O.Mu.P/1609/2020 dated 01.09.2020 and consequential impugned
order passed by the third respondent vide his proceedings
Na.Ka.No.R2/14980/19 dated 30.09.2020 and quash the same as illegal and
consequentially, to direct the respondents to reinstate the petitioner in service
within the period as stipulated by this Court.
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W.P.(MD)No.18626 of 2020
For Petitioner : Mr.Ajmal Khan
Senior Counsel
for M/s.Ajmal Associates
For Respondents : Mr.R.Suresh Kumar
Additional Government Pleader
ORDER
Heard the learned Senior Counsel appearing for the writ petitioner and the learned Additional Government Pleader appearing for the respondents.
2. The writ petitioner was appointed as a Panchayat Assistant on 15.10.2010 in P.Pudupatti Panchayat in Virudhunagar District. The petitioner claims that when new Panchayat President took over in the year 2011, her work environment turned otherwise. She alleges that she was subjected to harassment and relieved from service on 21.06.2013. Following her representation, the Block Development Officer vide proceedings dated 01.10.2013 transferred and posted her at Kadambankulam Panchayat. The petitioner got married to one Alagarsamy on 06.12.2013 and gave birth to twin babies. The petitioner was not given maternity leave. Left with no other option, the petitioner gave her resignation. The petitioner would specifically contend that no order accepting her resignation was passed and that she was https://www.mhc.tn.gov.in/judis 3/14 W.P.(MD)No.18626 of 2020 under impression that she continued to be in employment. The petitioner sent the representation dated 07.05.2020 followed by reminder on 24.07.2020. Her request to report for duty was rejected by the impugned order 30.09.2020.
Challenging the same, the present writ petition has been filed.
3. The learned Senior Counsel took me through the averments set out in the affidavit filed in support of the writ petition and contended that since no order was passed on the petitioner’s resignation letter, it must be deemed that she continues to be in employment. He would also submit that since vacancies are presently available, the petitioner can as well be considered for being posted against any one of the available vacancies. On instructions from the writ petitioner, it was further stated that the petitioner would not lay any claim for backwages or seniority.
4. Per contra, the learned Additional Government Pleader appearing for the respondents submitted that as per Rule 41(A) of the Tamilnadu State Subordinate services Rules. Even if no order is passed on the resignation letter it shall be deem to have been accepted on the expiry of the notice period. He would also point out that the petitioner had left the employment wayback in the https://www.mhc.tn.gov.in/judis 4/14 W.P.(MD)No.18626 of 2020 year 2014 and after lapse of six years she knocked the doors of the authorities.
Since the petitioner's contact suffers from huge laches, this Court ought to sustain the order impugned in the writ petition.
5. I have carefully considered the rival contentions and went through the materials on record.
6. The writ petitioner was appointed as Panchayat Assistant. The said post is now designated as Village Panchayat Secretary. Rule 41(A) of Tamilnadu State Subordinate services Rules Rules 41(a) to (c) reads as follows:
“41-A. Acceptance of resignation (a) - A Government servant may resign his appointment by giving notice of not less than three months in writing direct to the appointing authority with a copy marked to his immediate superior officer. The period of three months notice shall be reckoned from the date of receipt of such notice by the appointing authority.
(b) The Government servant may withdraw the notice of his resignation before its acceptance. Withdrawal of resignation will not be permitted after its acceptance by the appointing authority.
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(c) The appointing authority shall issue orders on the notice of resignation before the date of expiry of notice, either accepting the resignation from a date not later than the date of expiry of the notice or rejecting the same, giving the reasons therefor. If no such order is passed, the resignation shall be deemed to have been accepted on the expiry of the period of notice.”
7. The learned Senior Counsel would point out that these Rules apply only to Government Servants and not to Secretaris of Village Panchayat. It is stated that service conditions of the Panchayat servants are governed by seperate satutotory rules and that in the said Rules, there is no corresponding provision.
8. Justice Markandey Katju, former Chief Justice of Madras High Court and a former Judge of Supreme Court of India had edited K.S.Sarkar's in Tagore Law Lectures “Mimansa Rules of Interpretation”.
9. His Lordship in the preface writes thus:-
“On reading the book I realized I had come across a veritable treasure of knowledge lying unearthed which could be of profound use in judicial work. Principles of interpretation https://www.mhc.tn.gov.in/judis 6/14 W.P.(MD)No.18626 of 2020 are very important in interpreting statutes and till then I had known only of Maxwell's book on 'Interpretation of Statutes' and other books which are all based on Maxwell's work, e.g. the books of Craies, Crawford, Sutherland, G.P.Singh, V.P.Sarathy, Jagdish Swarup, etc. My earnest hope and wish is that with the publication of this book the use of the Mimansa principles of interpretation will begin in our law Courts. If that happens, I will have the satisfaction that my efforts were not in vain.”
10. There is a reference to Principle of “Atidesha. It means that a rule found to be good with regard to one case is applicable to other analogous cases.
Of course, this principle of analogy should not be strained or forced. The book contains a judgment of His Lordship rendered in C.M.W.P. No.8249 of 1990, dated 11.10.1992 (Sardar Mohammad Ansar Khan v. State of U.P.). The writ petitioner therein invoked Rule 3(1)(b) of the U.P. Intermediate Education Rules, 1983 which stated that if two or more teachers are appointed on the same date, their inter se seniority shall be fixed on the basis of age. Though the rule applied to teachers, the Hon'ble Judge observed that the rule is sound and fair and applied it to non-teaching employees also, particularly since there was no rule applicable to non-teaching employees for fixing seniority of employees appointed on the same day. The said decision runs thus:-
https://www.mhc.tn.gov.in/judis 7/14 W.P.(MD)No.18626 of 2020 “2. In my opinion we can use the Atidesh Principle of Mimansa in this connection.
3. I have already pointed out in some earlier judgments of mine, as well as in an article published in November 1992 issue of All India Reporter, that the Mimansa Principles of interpretation were our traditional system of Interpretation used regularly by our jurists. These principles originated from the religious difficulties found in interpreting and understanding the texts in the Shrutis pertaining to performance of the various Yogyas Thus the Mimansa principles were originally meant for religious purposes, but since they were rational and scientific they gradually became of universal application, and began to be used in law, in grammar In philosophy etc. our great commentators like Vijnaneshwar, Jimutvahan, Vachaspati, Nanda Pandit, etc were all profound scholars of Mimansa. In fact those who wished to study law had first to undergo a course in Mimansa, for it was realized that without knowledge of the Mimansa principles there could be no real understanding of the law as laid down in the smritis.
4. The Mimansa Principles were first laid down by Jaimini in his sutras written around 500 B.C. The main commentary on it is the Bhashya of Shabar, written around 200 A.D. kumarila Bhatta's Tantravartika is the famous commentary on the Shabar Bhashya written around 300 A.D. Prabhakar is the founder of the Prabhakar schools of Mimansa (while Kumaril's school is known as the Bhatta School).
5 . The first six chapters of Jamini's sutras deal with upadesh, or express injunction while chapters 7 and 8 deal with atidesh or injunction by reference and it is this principle which we shall examine here.
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6. Jaimini defines Atidesh as follows "if what is prescribed as a duty with regard to one object applies to another object this is called Atidesh".
7 . There are various sacrifices (Yagya) for various purposes, and these are mentioned in the Brahmanas, which are prose texts attached to the vedas. The procedure of some sacrifices is given in great detail and these are known as Prakriti (or model). Thus the rules of the Darshapurnamasi Yagya, which is one of the main Vedic Yagyas, is given in great detail in the Shatapatha Brahmana, and hence darshapurnamasi is a Prakriti. On the other hand, there are other sacrifices whose details have not been given anywhere, and hence the question arose how these are to be performed. These are known as Vikriti and the Mimansa rule of Atidesh was created which laid down that the rules of the prakriti will also apply to the Vikriti.
8. Thus, for example, while the rules of the daily agnihotra have been given in detail in the shrutis, as regards the monthly Aginihotra there is only an injunction that it should be performed (Maasam Agnihotram Juholi). No further details are given anywhere as to how the monthly agnihotra is to be performed. Hence the Atidesh Principle is used and the rules of the daily Agnihotra are also applied to the monthly agnihotra Similarly, the parvana Shraddha for the paternal ancestors is the Prakriti for the Paravana Shraddha for the maternal ancestors, which is the Vikriti of the former (This is of great importance In the Dayabhaga school in which the number of pindas given is relevant for determining the order of succession).
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9. Jaimini confined atidesh to yagyas, but the later mimansaks extended the principle to various other matters too, and various sub categories of atidesh were laid down (see K.L. Sarkar's Mimansa Rules of Interpretation, PP-203-204).
10. The Atidesh Principle has been used extensively by our jurists. Thus, the Dattaka chandrika using the atidesh principle, applies the same rules to Dattaka (adopted) sons which applies to Kshetraija (natural) sons This is because a natural (begotten) son is to the adopted son like a Prakriti Yagya to a Vikriti Yaga. As regards the begotten son there are detailed rules regarding his rights and duties, but there are very few rules expressly related to adopted sons. Hence by the Atidesh principle the rules regarding begotten sons are also applied to adopted sons.
11. In the present case we notice that there is no express rule as to how the seniority of non-teaching employees in educational institutions who are appointed on the same day is to be reckoned. Hence using the atidesh principle of Mimansa we can hold that it is to be reckoned in accordance with the rule for teachers, and the senior in age should be deemed to be senior. Thus there is no infirmity in the impugned order and the petition is accordingly dismissed. The stay order is vacated. No order as to costs.”
11. Adopting the very same approach, I hold that the principle underlying Rule 41-A of the Tamilnadu State Subordinate Services Rules can be applied to the present case also on account of the silence in the Service Rules governing Panchayat Secretaries. The result and effect is that on the expiry of notice period, the petitioner's resignation is deemed to have been accepted. https://www.mhc.tn.gov.in/judis 10/14 W.P.(MD)No.18626 of 2020
12. But the matter cannot rest there. On going through the affidavit filed in support of the writ petition, I note that the writ petitioner got married in December 2013 and became pregnant. It is stated that she delivered twin babies. The babies had serious health issues. Article 42 of the Constitution of India states that the State shall make provision for securing just and humane conditions of work and for maternity relief. The Government of Tamil Nadu has recently announced that women employees are entitled to one year maternity leave. If only the petitioner had been granted leave she obviously would not have quit the service. This issue, therefore, cannot be approached from purely technical perspective. Even while sustaining the order impugned in the writ petition, I permit the petitioner to submit a fresh representation and it is open to the third respondent to revisit the issue and adopt a compassionate approach bearing in mind the changed policy conditions. Such an order will be passed by the third respondent within a period of eight weeks after such a representation is submitted. Since the petitioner had made it clear that she is not going to claim any seniority or backwages, it is open to the authorities to accommodate her in any one of the available vacancies in any of the Panchayats coming under the jurisdiction of the third respondent.
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11. This writ petition is accordingly disposed of. Consequently, connected miscellaneous petition is closed. No costs.
16.09.2022
Index : Yes / No
Internet : Yes/ No
mga
To
1.The Secretary to Government,
Rural Development and Panchayat Raj Department, Secretariat, Chennai – 9.
2.The Director of Rural Development and Panchayat Raj, Directorate of Rural Development and Panchayat Raj, Panagal Building, Chennai – 600 015.
3.The District Collector, Virudhunagar District, Virudhunagar.
4.The Personal Assistant to District Collector (Development), Office of the Collector Office Campus, Virudhunagar District, Virudhunagar.
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5.The Assistant Director of Rural Development (Panchayat), Office of the Assistant Director of Rural Development, Virudhunagar, Virudhunagar District.
6.The Block Development Officer (Village Panchayat), Office of the Block Development Officer, Kariapatti, Virudhunagar District.
7.The President, P.Pudupatti Panchayat, Pudupatti Post, Kalkurichi, Virudhunagar District.
8.The President, D.Kadamangulam Panchayat, Kariapatti Panchayat Union & Taluk, Virudhunagar District.
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