A. Subramaniam vs The District Collector of Salem Dt. and others

Ismail, J.—The petitioner herein was the Sanitary Inspector in Sooramangalam Town Panchayat. By G.O. Ms. 802 Rural Development and

Local Administration dated 27th March 1974, the Government directed the Sooramangalam Town Panchayat to be constituted into a

Municipality, with effect from 1st April 1974. One S.G. Venkataraman, the third respondent herein, who was Sanitary Inspector, Thammampatti

Town Panchayat, was the seniormost Sanitary Inspector working in the town panchayats in the district, and therefore, by an order dated 31st

March 1974, which is impugned in this writ petition, the Collector of Salem, transferred the third respondent and posted him as Sanitary Inspector,

Sooramangalam Town Panchayat, to be constituted into a municipality with effect from 1st April 1974. In order to provide room for this third

respondent, the petitioner who was the Sanitary Inspector, Sooramangalam Town Panchayat, was transferred by the same order and posted as

Sanitary Inspector, Valapadi Town Panchayat. The petitioner has challenged this order of his transfer from Sooramangalam Town Panchayat to

Valapadi Town Panchayat, on the ground that the statutory requirements of S.60(1) of the Tamil Nadu Panchayats Act, 1958, hereinafter referred

to as the Act, has not been complied with. S. 60, sub-S. (1) of the Act states:--

Any Officer or servant of a panchayat (including the executive officer) may be transferred to the service of any panchayat union council or any

other panchayat by the Inspector;

Provided that no officer or servant (other than the executive officer) shall be so transferred except after consulting the commissioner or the

executive authorities concerned.

In making a transfer under this sub-section the Inspector may issue such general or special direction as may, in his opinion, be necessary for the

purpose of giving due effect to such transfer.

In this case, as I have pointed out already, the petitioner has been transferred from Sooramangalam Town Panchayat to Valapadi Town

Panchayat. As per S.60(1) of the Act, before this transfer can be effected, the executive authorities of the two panchayats should have been

consulted. The complaint of the petitioner in this writ petition is that this statutory requirement has not been complied with. It is conceded on behalf

of the first respondent that such a procedure was not followed in this case and the executive authorities of the two panchayats were not consulted

and therefore there has been a non-compliance with the requirements of S.60(1) of the Act. Therefore, it is clear that the order of transfer passed

with reference to the petitioner has to be quashed.

However, the first respondent herein has filed a rather curious counter affidavit and reference has to be made to the same. In paragraph 3 of the

counter affidavit the first respondent states:

According to R.35 of the Madras Panchayats (Establishment, Appointment and Punishment) Rules, 1963 issued in G.O. No. 170 R.D. and D.A.

dated 27th January 1967 under Ss.58 and 61 of the Tamil Nadu Panchayat Act, 1958 the Collector is the competent authority to make

appointment, to promote, to confirm, and to transfer any member in the cadre of Sanitary Inspectors in the district. S. 58 of the Tamil Nadu

Panchayats Act, 1958 deals with the conditions of service of officers and servants of the Panchayats and Panchayat Unions. Hence, the Sanitary

Inspectors cannot be said to be employees of town Panchayats appointed by the executive officers and they will not come within the purview of

S.60 of the Tamil Nadu Panchayats Act. They belong to a separate category under the direct administrative control of the Collector but allowed to

work in the Town Panchayats under the direction of the Collector with reference to R.35 of the rules relating to the appointment of and punishment

of officers of Panchayats referred to above. The executive officer is not the appointing authority in the case of Sanitary inspectors, as in the case of

other employees of Town Panchayats. According to the Appointment and Punishment Rules of Panchayats establishments the Collector is the

appointing authority as regards Sanitary Inspectors in Town Panchayats are concerned and is also the authority competent to transfer them.

Under S. 48 of the said Act, the Government have framed rules and made the Collector as the appointing authority as regards the Sanitary

Inspectors of the Town Panchayats concerned. Inasmuch as the Government have framed separate rules for the appointment and transfer of

Sanitary Inspectors under S. 58 of the said Panchayats Act, the provision made under S. 60 (1) of the said Act will not be applicable in the case of

Sanitary Inspectors of the Town Panchayats. The provisions of S. 60of the Act are intended to apply only in respect of servants of Panchayats

over whom the Executive Officer has got full administrative and disciplinary control. Hence, the transfer of Sanitary Inspectors appointed by the

Collector is not governed by the provisions of S. 60 (1) of the Tamil Nadu Panchayats Act.

But for the very grave mistake in regard to the legal position committed by the District Collector in the course of the counter-affidavit extracted

above, I would not have taken note of this portion at all. I have already extracted S. 60 (1) of the Act and that applies to any officer or servant of

the Panchayat (including the executive officer), and there is absolutely nothing in S. 60 (1) to show that it applies only to servants of the Panchayat

appointed by the executive officer or over whom the executive officer has got full administrative and disciplinary control, as contended by the

District Collector. On the other band, the expression ""any officer or servant of the panchayat (including the executive officer)"", occurring in S. 60

(1) of the Act will cover all the officers and servants of the Panchayat, irrespective as to who has got administrative or disciplinary control over

them. Secondly, S. 58(1) of the Act states that the Government shall have the power to make rules regarding the authorities who may appoint the

officers and servants of panchayats and panchayat union councils other than executive officers and commissioner and the classification, methods of

recruitment, pay and allowances, discipline and conduct, and conditions of service of such officers and servants. S. 61 states--

Subject to such control as may be prescribed by the Government, the executive officer or the Commissioner may censure, fine, withhold

increments or promotions from, reduce to a lower rank in the seniority list, or to a lower post or time scale or to a lower stage in a time-scale,

suspend, remove or dismiss any officer or servant in the service of the panchayat or panchayat union council, as the case may be for any breach of

departmental rules or discipline, or for carelessness, unfitness, neglect of duty or other misconduct.

In G.O. No. 170 Rural Development and Local Administration, dated 27th January, 1967 the Government framed rules called the Madras

Panchayats Establishment (Appointment and Punishment) Rules 1965, under S. 58 (1) and S. 61 of the Act referred to above. It is on Rule 33 of

these rules the Collector has relied in the counter-affidavit, the portion of which has been extracted already.

I am clearly of the opinion that the fact that Sanitary Inspectors have been constituted as a separate cadre under the administrative control of the

Collector will in no way affect their status as officers or servants of the Panchayat under S. 60 (1) of the Act. Once they fall within the scope of S.

60 (1) of the Act as officers or servants of the Panchayat, then the requirement of S. 60 (1) will have to be complied with when such an officer is

sought to be transferred from one Panchayat to another panchayat. Even assuming that the rules framed by the Government under Ss.58(1) and 61

contain any provisions contrary to the provisions of S. 60 (1), then these rules certainly cannot override the statutory provisions contained in S. 60

(1), but can only be subordinate to S. 60(1). As a matter of fact, as far as I am able to see, there is nothing in the rules referred to above which is

contrary to or in conflict with the provisions contained in S. 60 (1) of the Act. It was in the imagination of the Collector who has sworn to the

counter affidavit that simply because the Sanitary Inspectors have been constituted into a separate cadre under the Administrative Control of

District Collector, they will fall outside the scope of S. 60 (1). No doubt, there is the further erroneous assumption of the District Collector that the

officer or servant of the Panchayat contemplated by S. 60 (1) is one over whom the executive officer has got full administrative or disciplinary

control. For this assumption, there is absolutely no basis either in the provisions of the Act or in the rules relied on by the Collector himself, and

therefore these rules are not of any avail to the first respondent to support or sustain the order of transfer made by him not in conformity with the

requirement of S. 60(1) of the Act. Under these circumstances, the writ petition is allowed and the impugned order relating to the transfer of the

petitioner from Sooramangalam town Panchayat to Valapadi town panchayat is quashed. There will be no order as to costs.