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Judgment
N. Paul Vasanthakumar, J.—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.
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.
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.
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.
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.
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.
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.
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.
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.
(a) In the decision reported in Food Corporation of India Etc. Etc. Vs. Om Prakash Sharma and Others, , 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,
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.
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 P.
Mahendran and others Vs. State of Karnataka and others, , wherein in paragraph 5 (in AIR) it is held thus,
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 Chandraprakash Madhavrao Dadwa and Others Vs. Union of India and Others, , in paragraph 53 (in AIR), the
Supreme Court held as follows,
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.
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.
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.