Madras High Court
V. Usha vs The Director Of Town Panchayat on 31 August, 2007
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31-8-2007 CORAM THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.20393 of 2006 (O.A.No.2230 of 1995) V. Usha ... Petitioner Vs 1. The Director of Town Panchayat, Kuralagam, Madras - 108. 2. The District Collector, VRP District. 3. The Assistant Director of Town Panchayat, Cuddalore Zone, Cuddalore -1. 4. The Executive Officer, Town Panchayat, Ulundurpet, VRP District. ... Respondents This writ petition came to be numbered under Article 226 of Constitution of India, by way of transfer of O.A.No.2230 of 1995 from the file of the Tamil Nadu Administrative Tribunal with a prayer to call for the records of the first respondent in R.C.No.28676/94/A2, dated 7.3.1995 reverting the petitioner from the post of Typist to the second level lower post of Record Clerk and the consequential order passed by the third respondent in ROC.No.TP2/2876/94, dated 8.3.1995 and the consequential order of the 4th respondent in ROC.A1/206/95, dated 13.3.1995 and quash the same and direct the respondent to retain the petitioner as Typist in any Town Panchayat in VRP District, or in any other equivalent post. For Petitioner : Mr.S.Vadivelu For Respondents : Mr.N.Manoharan Government Advocate O R D E R
Prayer in the writ petition is to quash the order of reversion dated 7.3.1995 reverting the petitioner from the post of Typist to the post of Record Clerk and the consequential order passed by the third respondent dated 8.3.1995 and the further order passed by the 4th respondent dated 13.3.1995 and for a direction to retain the petitioner as Typist in any one of the Town Panchayat in Villupuram District.
2. The brief facts necessary for disposal of the writ petition are that the petitioner was appointed as Record Clerk on 30.5.1986 and after due selection he was posted at the Office of the Town Panchayat, Ulundurpet. The period of probation as Record Clerk of the petitioner was declared as on 30.5.1988 by the proceedings of the competent authority dated 12.8.1988. The post of Record Clerk and Bill Collector being interchangeable, the petitioner was posted as Bill Collector at Kattumannarkoil Town Panchayat on 24.10.1990. The petitioner served as Bill Collector in the said Town Panchayat for ten months till August 1991. The petitioner was appointed as Typist and posted at Chinnaselam Town Panchayat and later she was transferred to Ulundurpet Town Panchayat and she joined there on 26.3.1992. While serving as Typist in Ulundurpet Town Panchayat, the impugned order dated 7.3.1995 was served on the petitioner on 16.3.1995, reverting the petitioner as Record Clerk.
3. The reason stated in the impugned order dated 7.3.1995 is that the petitioner was promoted from the post of Record Clerk to Bill Collector and then as Typist, contrary to the existing rules and therefore he was reverted, transferred and posted as Record Clerk in the existing vacancy at Parangipettai Town Panchayat on administrative reasons and seniority would be maintained in Villupuram District. The said order of reversion was stayed by the Tribunal on 20.4.1995 initially for four weeks, which was extended until further orders on 4.5.1995. Thus, the petitioner is serving in the promoted post all these years.
4. The respondents filed counter affidavit stating that the post of Bill Collectors in the Town Panchayat was provincialised with effect from 16.12.1988 as per G.O.Ms.No.800 Rural Development Department, dated 16.12.1988 and amendment issued in G.O.Ms.No.300 P&AR Department, dated 28.8.1992. The petitioner was working as Record Clerk, which was a non-provincialised post in Town Panchayat. Hence the appointment of the petitioner as Bill Collector on 24.10.1990 i.e., after 16.12.1988 being contrary to the Government Orders, the reversion order was passed posting her as Record Clerk.
5. The learned counsel appearing for the petitioner submitted that the Provincialisation even though was made in the year 1988, sub-rules were issued only through G.O.Ms.No.300 P&AR Department dated 28.8.1992 and in the rules issued it is stated that a Bill Collector in the Town Panchayat shall be eligible for appointment as Junior Assistant in Town Panchayat Department if he is qualified and suitable and satisfactorily completed the period of probation as Bill Collector. Relying on the said rule, the learned counsel for the petitioner submitted that the petitioner having completed probation in the equal cadre of Record Clerk as early as on 30.5.1988, the further promotion given to the petitioner as Typist is in order and the reversion order passed is unsustainable. The learned counsel also submitted that even if the rule is against the petitioner, the same cannot be applied retrospectively as the vested right of the petitioner cannot be allowed to be taken away. Further, before passing the reversion order no notice or opportunity of hearing was given to the petitioner and therefore the principles of natural justice is violated.
6. The learned Government Advocate appearing for the respondents on the other hand submitted that only due to the provincialisation with effect from 16.12.1988 and strictly following G.O.Ms.No.300 dated 28.8.1992, the reversion order was passed and the order having been passed not by way of punishment, no notice need be given to the petitioner.
7. I have considered the rival submissions made by the learned counsel appearing for the petitioner as well as the learned Government Advocate appearing for the respondents.
8. The question to be decided in this writ petition is whether the provincialisation of Bill Collectors in Town Panchayats with effect from 16.10.1998 as per the orders issued in G.O.Ms.No.800 Rural Development Department, dated 16.12.1988 and the amendment issued in G.O.Ms.No.300 P&AR Department, dated 28.8.1992 can be the basis for passing the reversion order and whether by issuance of that order the vested right of the petitioner can be affected.
9. The only reason stated in the counter affidavit for passing reversion order is the implementation of the Government Orders and no exception could be taken by the petitioner due to the reversion order.
10. (a) In the decision reported in JT 1998 (5) SC 513 (Food Corporation of India etc., v. Om Prakash Sharma & Ors.), the Supreme Court held that amendment to service rules cannot be applied retrospectively taking the vested right of the persons who are in service. In paragraphs 32 and 33 of the decision, the Supreme Court held thus, "32. The last of the above cases has been decided by the Constitution Bench in which one of us (Justice Agarwal) was a member and he spoke for the Bench. It will be advantageous to quote the following passage in that judgment:
"In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution."
33. If the principle land down in the above judgment is applied here, there is no doubt that the impugned amendments in the present case can not operate retrospectively."
(b) The said proposition that retrospective amendment of service rules is impermissible is held by the Supreme Court in the decision reported in AIR 1990 SC 405 = (1990) 1 SCC 411 (P.Mahendran and others v. State of Karnataka and others), wherein in paragraph 5 (in AIR) it is held thus, "5. It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rules of 1987 do not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the rule with retrospective effect. Since the amending Rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter."
(c) In the decision reported in AIR 1999 SC 59 = (1998) 8 SCC 154 (Chandraprakash Madhavrao Dadwa and others v. Union of India and Others), in paragraph 53 (in AIR), the Supreme Court held as follows, "53. To put it in a nutshell, the change in the essential qualification made in 1990 or 1998 or the additional functions now required to be performed by the appellants could not retrospectively affect the initial recruitment of the appellants as Data Processing Assistants nor their confirmation in 1989. Recruitment qualifications could not be altered or applied with retrospective effect so as to deprive the recruitees of their right to the posts to which they were recruited nor could it affect their confirmations."
11. The petitioner was fully qualified to hold the post of Typist as she passed Typewriting English Higher Grade in November, 1986, and also passed the departmental tests such as Village Swaraj, Panchayat Act 1958, District Office Manual, Panchayat Development Account Test and Miscellaneous Acts and Rules. Further the petitioner was holding the Typist post for over three years and seven months. She was given three years annual increment and her name also found a place in the interse seniority list of Junior Assistants, Revenue Inspectors and Typists and was placed in Sl.No.29. She was regularly appointed as Typist as per the proceedings dated 7.3.1994 of the District Collector, Villupuram. Hence the reversion of the petitioner by the impugned order really affects her vested right and as there is reduction in her salary and status, it definitely have civil consequences.
12. In view of the above findings and applying the Supreme Court decisions cited supra to the facts in this case, I hold that the impugned orders passed without giving any notice to the petitioner are unsustainable and accordingly the same are quashed. The writ petition is allowed. No costs.
Index : Yes/No.
Website : Yes/No. 31-8-2007
vr
To
1. The Director of Town Panchayat,
Kuralagam, Madras - 108.
2. The District Collector, VRP District.
3. The Assistant Director of Town Panchayat,
Cuddalore Zone, Cuddalore -1.
4. The Executive Officer,Town Panchayat, Ulundurpet, VRP District.
N. PAUL VASANTHAKUMAR, J. vr
Pre-Delivery Order in
W.P.No.20393 of 2006
31.8.2007