V. Govindaswami vs The Revenue Divisional Officer and Another

K.S. Palaniswamy, J.—The petitioner was appointed as a lower division clerk in the Polur Panchayat Union, North Arcot district, on 15th

November, 1969, after having; been interviewed and selected by the appointment committee constituted u/s 53 of the Madras Panchayats Act,

1958 (hereinafter referred to as the Act). The post to which he was appointed was a permanent one but the appointment was made on a

temporary basis. The Commissioner of the Panchayat, the second respondent, by proceedings, dated 8th April 1970, ousted the petitioner from

service with immediate effect. This petition is filed to quash the said, order.

The case of the respondents, the first respondent being the Revenue Divisional Officer, Timvannamalai, on whose instructions the second

respondent, the Commissioner, issued the impugned proceeding is that the post should have been filled up by appointing a person belonging to

scheduled caste or scheduled; tribe, according to the communal rotation, that the petitioner, not being a scheduled caste or scheduled tribe

member was not eligible to be appointed and that, therefore, when the mistake was noticed, the first respondent issued instructions on the basis of

which the second respondent passed the ousting order. It is, also contended that inasmuch as the petitioner was appointed only on a temporary

basis, he is not entitled to question the ousting order.

The point that arises for decision in this case is whether the second respondent was competent to issue the impugned order. A consideration of

this question calls for an examination of certain provisions of the Act. The word ""Commissioner"" is defined in Section 2(5) as meaning the

Commissioner of the Panchayat Union. Sections 44(4)(e) and 45 deal with the appointment and. ordinary and emergency powers of the

Commissioner. Among the several duties which he has to discharge, one is to carry into effect the resolutions of the Panchayat Union Council. He

is also required to control all the officers and servants of the Panchayat Union Council Section 44(4)(e). Section 45 confers certain emergency

powers on the Commissioner. Section 61 confers power upon the Commissioner to punish officers and servants in the service of the Panchayat

Union Council. Such powers include power of censure, fine, withholding of increment or promotion, suspension, removal and dismissal for any

breach of the departmental rules or discipline or for carelessness, unfitness, neglect of duty or other misconduct. Section 53 provides for the

constitution of an appointments committee for every panchayat union. Sub-Section 1(a) of that Section reads:

There shall be an appointments committee for every panchayat union, which shall be composed of the chairman of the Panchayat Union Council,

the Commissioner and one member elected annually by the Panchayat Union Council. The Chairman of the Panchayat Union Council shall be the

chairman of the committee. Subject to the provisions of Section 58, and to such rules as may be made by the Government in this behalf

appointments to all posts under the Panchayat Union Council the pay of which is debitable to the funds of the Panchayat Union Council, shall be

made with the prior approval of the committee.

Though this provision says that the appointment shall be made with the prior approval of the Appointments Committee there is no express

provision conferring upon any authority the power to make the order of appointment, though it may be subject to the prior approval of the

Appointments Committee. Section 58 confers power upon the Government to make rules regarding the authorities who may appoint officers and

servants of the Panchayat and Panchayat Union Council other than Executive Officers and Commissioners. By virtue of this power, the

Government have framed the Madras Panchayat Union Establishment Rules, 1965. Even those rules do not contain any provision regarding the

authority who can appoint clerks, though the rules contain elaborate provisions in the matter of discipline, etc. The learned Assistant Government

Pleader conceded that there is no express provision either in the Act or in the rules empowering the Commissioner to appoint clerks. But he,

however contended that by virtue of the power conferred on the Commissioner u/s 44(4)(c) of the Act, it may be possible to infer that the power

of control conferred under that provision would include the power of appointment also. I am unable to accept this argument. Power of appointment

is distinct from power of control. Even a subordinate official can be conferred the power of control, though he may have no power of appointment

of those over whom he may be conferred the power of control. The position is that there is no provision conferring power upon the Commissioner

to appoint a clerk to the Union Council.

On behalf of the respondents, it was contended that though the petitioner was selected by the Appointments Committee, he was actually

appointed by the Commissioner and that, therefore, the petitioner cannot be heard to say that he was not appointed by the Commissioner, but was

appointed by the Appointments Committee. The proceedings relating to the appointment of the petitioner were drawn in the name of the

Commissioner. The order refers to the selection of the petitioner by the Appointments Committee and it reads:

Thiru V. Govindaswami who has been deputed by the District Employment Exchange and selected by the Appointments Committee of this

Panchayat Union is appointed to act as clerk temporarily on a pay of Rs. 90 in the scale of Rs. 90-3-120-2-140 plus usual D.A. of Rs. 98 p.m.

vice in the existing vacancy.

Placing reliance upon the aforesaid order it is contended on behalf of the respondents that the petitioner should be deemed to have been appointed

only by the Commissioner. Though the order reads as if the petitioner was appointed by the Commissioner, we have got to construe the duties

imposed upon the Commissioner under the Act. One of his duties is to carry into effect the resolutions of the Panchayat Union council. He is also

directly responsible for the fulfilment of the purposes of the Act. The Appointments Committee is enjoined with the duty of giving approval to

appointments to all posts under the Panchayat Union Council. When the Appointments Committee accords its approval, it is the duty of the

Commissioner to carry into effect the approval. It is presumably in the discharge of such a duty that the Commissioner, in the instant case, issued

the order of appointment to the petitioner to give effect to the approval of the Appointments Committee. In the absence of an express power

conferred upon the Commissioner to appoint a clerk, the order of appointment has to be construed as one having been passed by the

Commissioner for the purpose of giving effect to the selection and approval by the Appointments Committee. The Commissioner does not possess

any power to appoint, independently of the authority of the Appointments Committee.

It appears that the post to which the petitioner was appointed was to have been filled up by a person belonging to Scheduled Caste or

Scheduled Tribe. The first respondent, Revenue Divisional Officer, claiming to exercise powers as an appellate authority, under Rule 11(2)(A) of

the Madras Panchayat Union Establishment (Appointment and Punishment) Rules, 1965, issued proceedings to the second respondent, the

Commissioner, on 4th April, 1970 pointing out that the post should have been filled up by selecting and appointing a person belonging to

Scheduled Caste or Scheduled Tribe. He instructed the second respondent to advise the Appointments Committee to select and appoint a

candidate belonging to Scheduled Caste or Scheduled Tribe in the vacancy by ousting the petitioner immediately. To give effect to these

instructions the second respondent issued the impugned order on 8th April, 1970 stating inter alia that the post should have been filled up by

appointing a person belonging to Scheduled Caste or Scheduled Tribe, that the first respondent had ordered the ousting of the petitioner. Who is

not a member of the Scheduled Caste or Scheduled Tribe and that, therefore, the petitioner was ousted from service with immediate effect. It is

contended on behalf of the petitioner that though the second respondent purported to give effect to the instructions issued to him by the first

respondent, he had no power to straightaway issue the impugned order without reference to the Appointments Committee which selected him and

that, in the circumstances, the second respondent had no power to issue the impugned order independently of the Appointments Committee. It is,

however, contended on behalf of the respondents that inasmuch as it was the Commissioner who issued the order of appointment, it was not

incumbent upon him to refer the matter to the Appointments Committee and that he was himself competent to pass the impugned order. I am

unable to accept the argument advanced on behalf of the respondents. I have already pointed out that the Commissioner has no power of

appointment by himself. The proceeding by which the order of appointment of the petitioner was issued was merely for the purpose of giving effect

to the selection made by the Appointments Committee. The second respondent cannot claim to have exercised the power of termination of the

petitioner''s services by virtue of the powers u/s 61, for, that Section deals with power of punishment in disciplinary matters only. The action taken

against the petitioner was not by way of punishment. Therefore, it is not open to the second respondent to fall back upon Section 61.

There being no power of appointment in the Commissioner and the order of appointment of the petitioner having been issued by the

Commissioner only by way of giving effect to the selection made by the Appointments Committee, the proper course which the second respondent

should have adopted was to place the matter before the Appointments Committee so that the Appointments Committee could revoke the selection

of the petitioner, in which case, it would have been competent for the second respondent to issue necessary proceedings terminating the services of

the petitioner. Perhaps, the Revenue Divisional Officer, first respondent, was conscious of this position when he issued instructions to the second

respondent on 4th April, 1970. But unfortunately he did not give instructions in clear terms. The instructions read as if the Appointments

Committee should be approached to select and appoint a person belonging to Scheduled Caste or Scheduled Tribe without explicitly stating that

such selection should be made by the Committee after the Committee itself set aside the selection of the petitioner already made. It is contended on

behalf of the petitioner that if the Commissioner had referred the matter to the Appointments Committee, it would have been open to the

Committee to shift the petitioner from the post to which he was appointed to some other vacancy, thereby preventing his ouster from service. It is

not possible to say what the Committee would have dons if the matter had been referred to it. We do not know whether there was any vacancy

also. But whatever it is, so far as the impugned order is concerned, it is clear that it is vitiated, inasmuch as the second respondent by himself had

no power to issue the order of termination.

In the result, the writ petition is allowed and the impugned order is quashed. This order however, does not preclude the second respondent from

placing the matter before the Appointments Committee and from taking suitable action for the purpose of filling up the post by selecting a person

belonging to the Scheduled Caste or Scheduled Tribs. No order as to costs, and this case having been posted for being mentioned on Monday the

2nd and Tuesday the 3rd days of August, 1971 in the presence of Mr. R. Nadanasabapathy, Advocate for the petitioner and of Mr. S.

Ramalingam, Assistant Government Pleader on behalf of the 1st respondent and the second respondent not appearing in person or by advocate

and having stood over for consideration till this day the Court made the following.

This matter was re-posted at the request of the Assistant Government Pleader. In the order passed on 20th July, 1971 I have observed that the

Madras Panchayat Union Establishment (Appointment and Punishment) Rules, 1965, do not contain any provisions regarding the authority who

can appoint clerks, and that the Assistant Government Pleader conceded that there was no express provision either in the Act or in the rules

empowering the Commissioner to appoint clerks. The Assistant Government Pleader stated that he made a mistake in making that statement at that

time and as a matter of fact there are provisions dealing with the power of appointment of clerks. He, therefore, requested that the matter may be

re-heard. I granted the request, and it is in these circumstances that it has come up for re-hearing. The Assistant Government Pleader brought to

my notice the orders issued by the Government in G.O.Ms. 1941, R.D. and L.A., dated. 13th July, 1961. That order is printed at pages 351 to

358 in the Guide Book on Panchayat Development in Madras State, Volume I. That is not a statutory rule. That deals with establishment of

panchayat union offices, fixation of strength, recruitment etc. The relevant portion of that Government Order reads:

Appointments to the posts of lower division clerks, Cashiers, typists and attenders can be made by the Collectors only prior to the constitution of

the Panchayat Unions. If any vacancy exists in any of these posts subsequent to the constitution of the Unions, Collectors will not be empowered

to make appointments against such Vacancies. Then the power to make appointments to these posts which are paid out of Panchayat Union funds,

will vest with the Commissioner of the Panchayat Union concerned.

Placing considerable reliance upon the foregoing passage, it is contended by the Assistant Government Pleader that from the above extract, it

would be reasonable to hold that the Commissioner is invested with the power to appoint clerks. I am unable to accept this argument. The passage

occurs in an executive instruction, and it cannot be contended that it is a rule framed u/s 58 of the Act under which the Government have no doubt

power to make rules regarding the authorities who may appoint the officers and servants of Panchayats and Panchayat Union Councils. The

prescribed procedure u/s 199 with regard to the making of rules, notifications etc., has not been followed. Therefore, the aforesaid Government

Order, has no statutory force.

The Assistant Government Pleader next drew my attention, to Rule 21 of the Madras Panchayat Union Establishment (Appointment and

Punishment) Rules, 1964, and contended that the appointment of the petitioner would fall under the rule. To appreciate this argument, the relevant

portion of that rule may be noted:

Temporary appointments: - (1) Notwithstanding anything contained in these rules or in any other rules, where it is necessary in the public

interest or for administrative reasons to fill immediately a vacancy in the post and there would be delay in making such appointment in accordance

with these rules or any other rules governing such appointment, the Commissioner may, for reasons to be clearly recorded in writing, temporarily

appoint a person otherwise than in accordance with the said rules. (provisos omitted).

The question is whether the appointment of the petitioner was made by the second respondent by virtue of the aforesaid provision. At the outset it

may b: pointed out that (he second respondent has not chosen to file a counter-affidavit stating that it is only by virtue of the said provisions that he

appointed the petitioner. Even the counter-affidavit filed by the first respondent does not refer to this provision. It is baldly alleged in his counter

affidavit that the appointment of the petitioner was temporary. No doubt, in the order of appointment, it was stated that the appointment was made

purely on a temporary basis and that the appointment would not confer any right to future appointment. The power to make temporary

appointment under Rule 21 would arise: (1) where it is necessary in the public interest or for administrative reasons to fill up the vacancy

immediately and (2) if there would be delay in making such appointment in accordance with the the rules or any other rules governing such

appointment. If these two conditions are satisfied, then the Commissioner can make the temporary appointment. But he is required to record

clearly in writing the reasons for making the temporary appointment. None of these conditions is satisfied in the instant case. It is not as though the

vacancy arose requiring the immediate filling up for administrative reasons or in public interest. It is not as though the Vacancy arose requiring the

immediate filling up for administrative reasons or in public interest. It is also not the case that delay was apprehended in making regular appointment

and that, therefore, the petitioner was appointed. Far from these conditions being satisfied, the facts of this case show that the appointment was

made on a regular basis, though in the actual order of appointment issued to the petitioner it was stated that the appointment was purely temporary.

The Commissioner issued a requisition to the Employment Exchange to send candidates for selection. Column 4 of the requisition dealing with the

number of vacancies contains two clauses. The first clause requires to be stated whether the Vacancy is regular. The second clause requires to be

stated whether the Vacancy is temporary. Against these clauses, the pro forma stated that the Vacancy was regular. Nowhere did the second

respondent record in writing that the appointment was temporary and was being made in public interest or for administrative reasons to fill up the

vacancy immediately. The fourth proviso to Rule 21 also says that the appointment under the rule shall not exceed one year at a time. Nowhere in

the file it is indicated that the appointment was not to exceed one year. Having regard to these circumstances, it is rightly contended on behalf of

the petitioner that the petitioner''s appointment cannot be brought within the scope of Rule 21.

The Assistant Government Pleader contended that when the requisition was sent to the Employment Exchange to send up a list of candidates,

the Commissioner explicitly stated that, the hands required should be members belonging to Scheduled Caste or Scheduled Tribe that the

President fraudulently altered that portion of the requisition with a view to benefit the petitioner and that, therefore, this Court should not lend help

to the continuance of the petitioner in service. No doubt, in the requisition sent to the Employment Exchange, we find the word ""S.C.S.T.

candidate is required"". But these words are scored out and they are substituted by the words ""persons with previous experience preferred"". It is

wrongly alleged in the counter affidavit filed on behalf of the first respondent as if the President had substituted the word ""open competition"". The

Employment Exchange accordingly sent up a list of nine names. In the list, the name of the petitioner finds the first place. Against his name, the

letters B. C. are found presumably meaning Backward Glass. Against the names of six other candidates, similar letters are found. None of the

candidates sent, up was a member belonging to Scheduled Caste or Scheduled Tribe. It is not as if the selection of the petitioner was made by the

Chairman and another member of the Committee without the knowledge of the Commissioner. The Commissioner, who had signed the requisition

sent to the Employment Exchange, participated as a member of the Appointments Committee which selected the petitioner. At that time the

Commissioner did not point out that the vacancy should be filled up by a member belonging to Scheduled Caste or Scheduled Tribe that he had

made a requisition for sending the names only of such a candidate and that, therefore, the petitioner should not be selected. The circumstances

under which the requisition is found corrected are not clear. But it cannot be contended that the selection of the petitioner was made without the

knowledge of the Commissioner.

Mr. Nadanasabhapathi, Counsel for the petitioner raised a new ground regarding the competency of the first respondent who issued directions

to the second respondent regarding the appointment of the petitioner. In the view which I take about the competency of the second respondent to

pass the impugned order it is unnecessary to go into that question.

The result is the same position as the one which I have already pointed out, namely that there is no provision either in the Act or the rules

empowering the second respondent to make the appointment in question. The selection of the petitioner having been made by the Appointments

Committee the second respondent having merely given effect to the selection, it was necessary on the part of the second respondent to have

placed the matter before the Appointments Committee before terminating the services of the petitioner. This not having been done, I think the

order which I have already passed should stand.