V. RAMASWAMY Vs. THE STATE OF TAMIL NADU

JUDGEMENT

(1.) The permanent village headman of Tiruchisrambalam Village was taking leave time and again on the ground of ill -health. During such period of leave, the petitioner herein was appointed to act as village headman. The last time the permanent village headman applied for leave was for one year with effect from 15th March, 1970. The petitioner was appointed temporarily to act as village headman for a period of one year from 15th March, 1970. While he was holding the office as temporary village headman, the permanent village headman died on 12th June, 1970. Thereafter, the R.D.O., Pattukottai, the third respondent herein, by his proceeding a dated 30th July, 1970 ordered that the services of the petitioner during the period from 15th March, 1970 to 12th June, 1970 shall be treated as temporary in leave vacancy. By the same order he appointed the petitioner as temporary village headman from 13th June, 1970 till the appointment of a permanent village headman. Originally certain applications were celled for appointment of a permanent village headman, and the petitioner and the 4th respondent applied for the same. But before an appointment could be made, the Tamil Nadu Village Officers Service Rules, 1970 (hereinafter referred to as the Rules) framed under Art. 309 of the Constitution of India, were published in the Gazette and came into force on and from 16, December, 1970. Therefore, fresh applications were called for under these new Rules for the appointment of a permanent village headman. After a consideration of the relative merits of the petitioner and the 4th respondent herein who applied for the post, the R.D.O. by his order dated 25th July, 1973 appointed the petitioner as the permanent village headman. The 4th respondent preferred an appeal to the 2nd respondent, the D.R.O., Thanjavur, and he considered that the petitioner did not have the educational qualifications prescribed under R. 5 (1) of the Rules as be was only a V Standard candidate and had not completed the S.S.L.C. examination. He was therefore of the view that the 4th respondent was more qualified for appointment and accordingly set aside the order of the R.D.O. appointing the petitioner as the permanent village headman and in his place appointed the 4th respondent as the village headman. The petitioner preferred a revision to the Government and obtained a stay of operation of the 2nd respondent's order setting aside his appointment. After the revision petition had been dismissed, he filed this Writ Petition and from this Court also he had obtained a stay of operation of the order of the D.R.O., and thereby he continues in office till today. The learned counsel for the petitioner in the writ Petition raised three main contentions. His first submission was that under the amended Rule 8 of the Rules on the date when the permanent vacancy had arisen, namely, 12th June 1970, the 4th respondent had not attained the age of 21 years, his date of birth being 12th May 1951, and that therefore he was disqualified from holding the office. Rule 8 of the Rules was amended and the amended rule came into force with effect from 26th May 1974. Rule 8 before amendment reads as follows:

(2.) Amended Rule 8 came into force on 26th June 1974. The rule in terms does not give any retrospective effect nor could I consider that there is anything implied to give retrospective operation for the rule. I have already held in V. Annamalai Senainathar v/s. The State of Tamil Nadu dated 3rd November 1975 that it would apply only to cases where the application for appointment of a permanent village headman was called for subsequent to 26th June 1974. Since in this case, the applications were called for on 28th March 1973, the amended rule 8 could not be invoked by the petitioner.

(3.) It was next contended by the learned Counsel for the petitioner that when the R.D.O. appointed the petitioner as the permanent village headman by his order dated 25th July 1973, he shall be deemed to have exercised his power under Rule 5(5) of the Rules. That rule provided that if there are no applicants who possess the qualifications prescribed under Rule 5(1), or if the applicants possessing such qualifications are otherwise unsuitable for appointment as village headman, the competent authority could appoint a person who does not possess the qualification specified in sub -rule (1). According to the learned counsel for the petitioner, though the petitioner had not the required educational qualification prescribed under Rule 5(1), he was appointed by the R.D.O., as he found the 4th respondent not suitable for appointment as village headman. The 2nd respondent D.R.O. was therefore wrong in disqualifying him on the ground that he had not got the required educational qualification. There is no substance in this contention of the learned counsel. The jurisdiction of the R.D.O. to appoint a person who does not possess the required qualification arises only if there was no other applicant possessing such qualifications or the other applicant is found to be unsuitable for appointment. The existence of these conditions could be tested by the Appellate Authorities as well in order to find whether the original appointing authority had exercised his power properly under Rule 5(5). The D.R.O. found that the 4th respondent was qualified in all respects and also suitable for appointment as village headman. On those findings, the R.D.O. would have no jurisdiction to invoke his powers under Rule 5(5) and the D.R.O. was therefore not wrong in setting aside the order on the ground that the petitioner had not got the required educational qualification.