M. THAMILMANI Vs. THE SUB COLLECTOR AND ORS.

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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: