M. Thamilmani vs The Sub Collector and Others

Ramanujam, J.—The permanent village-headman, No. 29, Tholudur Village of Thiruthuraipoondi Taluk, Thanjavur District resigned the post

and as such, the post of village-headman fell vacant from 10th September, 1975. On the instructions of the Sub-Collector, Mannargudi, the

Tahsildar, Thiruthuraipoondi, called for applications to fill up the post, but the notification calling for applications stated that the applicants should

reside in the charge village. In answer to the said notification, the Petitioner, the fourth Respondent and one P.V. Subramanian applied for the post.

After comparing the merits of all the three candidates, the Sub-Collector, Mannargudi, appointed the Petitioner as the village-headman. The fourth

Respondent appealed against the said order of appointment to the District Revenue Officer. The said appeal was, however, dismissed on the

ground that the Petitioner had better qualifications. The fourth Respondent thereafter, filed a revision petition before the Board of Revenue. Before

the Board of Revenue, the Petitioner and the fourth Respondent were represented by Counsel. After hearing the arguments of counsel on either

side, the Board of Revenue felt that the fourth Respondent was not eligible for appointment on the date of application and, therefore, his revision

petition has to be dismissed. However, after going through the records, the Board of Revenue found that the original notification issued by the

Tahsildar, Thiruthuraipoondi calling for the application prescribed the residence in the Village as one of the qualifications while the Tamil Nadu

Village Officers Service Rules do not set out residence as qualification, but merely provides the residence as a ground for preference in the matter

of appointment of village-headman and that the Tahsildar by publishing such a notification prescribing residence as a qualification has shut out other

qualified candidates from applying and, therefore, the appointment based on such Notification cannot be upheld. In this view, the Board of

Revenue set aside the order of the Sub-Collector as confirmed by the District Revenue Officer appointing the Petitioner as the village-headman

and remanded the case for making the appointment afresh after calling for fresh nominations strictly in accordance with the rules. The Petitioner

herein has questioned the said order of the Board of Revenue in so far as it is against him. The impugned order of the Board of Revenue has found

that on the date of the application, the Petitioner is the only qualified candidate and his appointment could be justified in the normal course. This

finding of the Board of Revenue is in favour of the Petitioner. But the other portions of the Board''s order set aside the appointment of the

Petitioner on the ground that the original notification calling for nominations is not strictly in accordance with the rules and, therefore, the

appointment of the Petitioner cannot be sustained. It is this portion of the order which is being attacked in this writ petition.

According to Mr. R.G. Rajan, the learned Counsel for the Petitioner, the ground that the original notification calling for nominations is bad has

not been taken by the fourth Respondent who was the revision Petitioner before the Board at any stage and such a contention was not raised by

him even before the Board of Revenue and that the Board of Revenue has chosen to raise and uphold the point for the first time after the case was

heard by them and after orders were reserved. It is contended by the learned Counsel that even assuming that the Board of Revenue had suo motu

power to revise the order of the lower authorities, it cannot modify the order to the prejudice of any of the parties before it without calling upon the

affected party to make his submissions or representations on that point.

It is not in dispute in this case that the point as to invalidity of the Notification had not been raised at any stage before the matter came before the

Board of Revenue. Even before the Board of Revenue, neither in the memorandum of revision filed by the fourth Respondent nor at the time of the

arguments this point was raised by the revision Petitioner. As already stated the Petitioner and the fourth Respondent were represented by Counsel

before the Board and the statement from the Bar by the Counsel on either side is that the Board of Revenue at the time of the arguments did not

advert to this point and call upon the parties to make their submissions thereon, that after hearing the case on merits, the Board of Revenue

expressed that it will pass final orders after going through the records and that they were not put on notice of the ground based upon the invalidity

of the notification calling for nominations. In view of the statement made by Counsel as there is no indication in the impugned order of the Board of

Revenue that the point as the validity of the notification was put to the Counsel and their arguments heard thereon, we have to proceed on the basis

that the point as to the invalidity of the notification was not put to the Counsel at the time of the arguments and the Board of Revenue after going

through the records found suo motu that the notification calling for applications was bad. It is in these circumstances we have to find whether the

impugned order of the Board of Revenue could be sustained in law. As already stated, there cannot be any dispute that the Board of Revenue can

exercise its suo motu or revisional power and dispose of the revision petition filed by a party on a ground which was not raised by him. But at the

same time, the Board at the time of exercising its suo motu power cannot ignore the proviso to Rule 6 which says:

Provided that no order prejudicial to any person shall be passed unless such person has been given a reasonable opportunity of making his

representations against such order.

In this case, the order passed by the Board is admittedly prejudicial to the writ Petitioner. The Board before passing such a prejudicial order

had not brought to its notice the point as to the invalidity of the notification; nor did it hear the Petitioner on that point at the time of the arguments.

Therefore, the Board cannot be said to have complied with the formality set out in the proviso. It is true that the Counsel on either side appeared

before the Board of Revenue at the time of the hearing of the revision. But there is no evidence that the Board after going through the records

called upon the Counsel to argue on the point as to the invalidity of the Notification. As a matter of fact, the Counsel, who had appeared for the

fourth Respondent before the Board of Revenue in support of his revision petition fairly concedes that the Counsel on either side were not put on

notice on the point as to the invalidity of the Notification and they were not called upon to make their submissions. What happened before the

Board of Revenue, according to the Counsel for the fourth Respondent, is that the Board of Revenue heard the Counsel on the relative merits of

their claims and ultimately stated that it will pass orders after going through the records. From this, it is clear that the Board of Revenue long after

the hearing of the case and after going through the merits found the new point as to the invalidity of the Notification on perusal of the records and it

is on that point, the order appointing the Petitioner has been set aside with a direction to initiate fresh proceedings for the filling up of the post of the

village-headman. We are of the view that the impugned order of the Board of Revenue cannot be sustained as it violates the proviso to Rule 6 of

the Tamil Nadu Village Officers Service Rules, 1970. Therefore, the order of the Board of Revenue is set aside and the matter is remitted to the

Board of Revenue for fresh disposal after giving the Counsel on either side a reasonable opportunity of making their representations on the

question of invalidity of the Notification calling for applications, The writ petition is allowed accordingly. No costs.