K. Rajendran & Ors Vs. State of Tamil Nadu & Ors [1982] INSC 46 (15 April 1982)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S. (J) FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)
CITATION: 1982 AIR 1107 1982 SCR (3) 628 1982 SCC (2) 273 1982 SCALE (1)342
CITATOR INFO :
RF 1985 SC 724 (5) RF 1987 SC1467 (3) R 1989 SC1988 (18)
ACT:
Constitution of India 1950, Articles 14. 19 (1) (g), 32 and 311 (2) & Tamil Nadu Abolition of posts of part-time Village Officers Act 1981, Ss.2 (e), 3 and 5.
State enactment-Abolition of civil posts-Posts of part- time village Officers abolished-Introduction of whole-time village administrative officer-Whether valid and legal.
Civil Service-Civil post-Abolition of post-Whether government has a right-Abolition of post and abolition of cadre-Distinction-Rights of the incumbent of the post.
HEADNOTE:
In the State of Tamil Nadu the administration was carried on at the village level by a chain of officers in regular gradation one above the other since the commencement of the Christian era. This system known as the barabaluti system consisted of twelve functionaries :(1) headman, (2) karnam or accountant, (3) shroff or notazar, (4) nirganti, (5) toty or taliary, (6) potter, (7) smith, (8) jeweller.
(9) carpenter, (10) barber, (11) washerman and (12) astrologer. The first five rendered service to the Government. By the end of the nineteenth century, two Acts were enacted for the purpose of regulating the work of these village offices.
The Madras Proprietary States' Village Service Act, 1894 (Madras Act No. 11 of 1894) dealt with three classes of village officers viz. village accountants, village headman and village watchman. It provided for their appointment, remuneration and summary punishment of misconduct or neglect of duty. The Madras Hereditary Village offices Act 1895 (Madras Act No. 111 of 1895) regulated the succession to certain other hereditary village offices and provided for the appointment of persons to hold such offices and the control of the holders thereof. Under both these statutes, the village offices devolved on a single heir according to the general custom and rule of primogeniture governing succession to impartible zamidaris. In cases to which the aforesaid two statutes were inapplicable provision was made by the Standing orders promulgated by the Board of Revenue, which were known as the Board's Standing orders for appointing village officers on a hereditary basis.
629 The distinctive features of the service conditions of the village officers appointed under the aforesaid two Acts or the Board's Standing orders were that they were part-time employees of the Government, they were appointed directly by the Revenue officer, the records maintained by them could be retained in their houses, no fixed hours of duty were prescribed, they were not constituted into any distinct service, could not be transferred outside their district, and that they were paid honorarium for the services that they discharged. The Fundamental Rules applicable to all other State Government employees, the Pension Rules, and the Leave Rules were not applicable to these village officers.
This Court in Gazula Dasaratha Rama Rao v. The State of Andhra Pradesh & ors. [1961] 2 SCR 931 having held that section 6 (1) of the Madras Act No. 3 of 1895 was void as it contravened Article 16 (2) of the Constitution, instructions were issued by the Board of Revenue on March 12, 1962 that in respect of future vacancies in village offices governed by the Madras Act No. 2 of 1894, and the Madras Act No. 3 of 1895, the appointments should be made on a temporary basis, and the State Legislature enacted the Madras Proprietary Estates' Village Service and the Madras Hereditary Village offices (Repeal) Act, 1968 repealing the 1894 and 1895 Acts.
Pursuant to section 3 of this Act, the State Government promulgated that Tamil Nadu Village officers Service Rules, 1970 which provided for the constitution of the Tamil Nadu Village officers Service, consisting of (i) Village headman, additional village headman, (ii) village karnam, additional village karnam, and (iii) talayari and nirganti and the method of recruitment to the said posts.
In the year 1973, the Administrative Reforms Commission set up by the State Government recommended that the existing part-time village officers should be replaced by regular whole-time transferable public servants who should form part of the Revenue hierarchy. The State Government accepted this recommendation and promulgated on May 17, 1975 the Tamil Nadu Village officers (appointed under B.S. Os) Service Rules 1974. Thereafter on October 9, 1978 the Tamil Nadu Village officers (appointed under B.S.Os) Service Rules 1978 were issued fixing the age of retirement of village officers at 60 years.
On November 13, 1980, the Tamil Nadu Abolition of posts of part-time Village officer’s ordinance, 1980 was promulgated abolishing the posts of part-time village officers in the State. The ordinance was later replaced by the Tamil Nadu abolition of posts of part-time Village officers Act 1981, which provided for the appointment of Village Administrative officers. By section 3 of the Act, the posts of part-time village officers were abolished with elect from November 14, 1980 and every officer holding a post so abolished ceased to hold such post, and section S provided for payment of compensation to those who ceased to be part-time village officers.
The petitioners in their writ petition to this Court contended that the ordinance and the Act were violative of Article 19 (1) (g); Article 311 (2), and contravened Article 14 of the Constitution. The State Government contested the petitions and contended that the State Government being of the opinion that the 630 system of part-time Village-officers was out-moded and did not fit in with the modern needs of village administration, after careful consideration taken the policy decision to abolish all the posts of part-time village officers on grounds of administrative necessity and to introduce a system of whole time officers to be incharge of the village administration. To achieve this, the ordinance was promulgated on November 14, 1980 which was later replaced by the Act. It was further contended, that since by the ordinance and the Act, certain posts had been abolished, the petitioners who were incumbents of the abolished posts could not raise any of the grounds raised by them.
Dismissing the petitions,
HELD: 1. (i) The power to abolish a civil post is inherent in the right to create it. The Government has always the power, subject to the constitutional provisions to reorganise a department to provide efficiency and to bring about economy. It can abolish an office or post in good faith. The action to abolish a post should not be just a pretence taken to get rid of an inconvenient incumbent.
[643 G] American Jurisprudence 2d vol.63 p. 648-649: H. Eliot Kaplan-The Law of Civil Service pp 214-215 referred to.
In the instant case the abolition of the posts of village officers was sought to be achieved by a piece of legislation passed by the State Legislature, namely the Tamil Nadu Abolition of posts of part-time Village officers Act, 1981. Want of good faith or malafides cannot be attributed to the Legislature. [646 A] (ii) The Act is not violative or Article 19 (1) (g) as it does not affect the right of any of the incumbents of the posts to carry on any occupation of their choice even though they may not be able to stick on to the posts which they were holding. [647 C] Fertilizer Corporation Kamgar Union (Regd) Sindri & ors. v. Union of India & ors. [1981] 2 SCR 52, referred to.
2. (i) The doctrine of pleasure incorporated in Article 310 cannot be controlled by any legislation; but the exercise of that power by the President or the Governor, is however made subject to the other provisions of the Constitution, one of them being Article 311, which is not made subject to any other provision of the Constitution and is paramount in the field occupied by it. [648 D-E] (ii) The termination of service of a Government servant consequent upon the abolition of posts does not involve punishment at all and therefore does not attract Article 311(2). [654 B; 654-E] Parashotam Lal Dhingra v. Union of India [1958] SCR 828 at 841, Moti Ram Deka etc. v. General Manager, N.E.F., Railways, Maligaon, Pandu etc.
631 [1964] 5 SCR 683 and P.V. Naik 8. Ors. v. state of Maharashtra & Anr., AIR 1967 Bom. 482, referred to.
(iii) If a post is not a special post and its incumbent is a member of a cadre his rights as a member of the cadre should be considered before deciding whether he has ceased to be a government employee on the abolition of the post. On such scrutiny it is likely that the services of another member of the cadre may have to be terminated or some other member of the cadre may have to be reverted to a lower post from which he may have been promoted to the cadre in question by the application of the principle of 'last come, first go'. If, however, where the post abolished is a special post or where an entire cadre is abolished and there is no lower cadre to which the members of the abolished cadre can reasonably be reverted, the application of this principle may not arise at all. [653 C-D] State of Mysore v. H. Papanna Gowda & Anr. etc. [1971] 2 S.C.R. 831, referred to.
(iv) In modern administration, it is necessary to recognise the existence of the power with the Legislature or the Executive to create or abolish posts in the civil services of the State. The volume of administrative work, the measures of economy and the need for streamlining the administration to make it more efficient may induce the State Government to make alterations in the staffing patterns of the civil service necessitating either the increase or the decrease in the number of posts. This power is inherent in the very concept of governmental administration. To deny that power to the Government is to strike at the very roots of proper public administration.
This power to abolish a post which may result in the holder thereof ceasing to be a Government servant has got to be recognised, but any action legislative or executive taken pursuant to that power is always subject to judicial review.
(656 A)) M. Ramanatha Pillai v. The State of Kerala Anr. (1974) 1 S.C.R. 515, Champaklal Chimanlal Shah v. The Union of India [1964] S S.C.R. 190, Satish Chandra Anand v. The Union of India [1953] S.C.R. 655, Shyam Lal v. State of U.P. and Union of India [1955] 1 S.C.R. 26, State of Haryana v. Des Raj Sangar of Anr. [1976] 2 S.C.R. 1034, referred to.
Abdul Khalik Renzu & Ors. v. The State of Jammu and Kashmir A.I.R. 1965 J & K 15, overruled.
In the instant case it cannot be said that the State Act by which the village officers in the State of Tamil Nadu were abolished, contravenes Article 311 (2). [657 F] (v) The posts of village officers which were governed by the Madras Act II of 1894, the Madras Act III of 1895 and the Board s Standing orders were feudalistic in character and the appointment to these posts were governed by the law of primogeniture, the family in which the applicant was born, the village in which he was born, and the fact whether he owned any property in the village or not. These factors are alien to modern-administrative service and clearly 632 opposed to Articles 14 and 16. The Administrative Reforms Commission rightly recommended their abolition and reorganisation of the village service. [657 H; 658 A C] (vi) Having regard to the abolition of similar village offices in the neighbouring States of Karnataka and Andhra Pradesh and the agitation in the State of Tamil Nadu for reorganisation of village service, the decision to abolish the village offices which were feudalistic in character and an anachronism in the modern age cannot be said to be arbitrary or unreasonable. [660 C] R. Shankaranarayana & Ors. v. the State of Mysore & ors. A.I.R. 1966 S.C. 1571. B.H. Honnalige Gowda v. State of Mysore & Anr., A.I.R. 1964 Mysore 84, referred to.
3. (i) Any classification under Article 14 should satisfy two tests: (i) that there exists an intelligible differentia between those who are grouped together and those who are not included in the group, and (ii) that there exists a reasonable nexus between the differentia and the object for which classification is made. [662 F] (ii) Upto December 16, 1970 all appointments to Village officers were being made under the two Madras Acts and the Board's Standing orders on the basis of factors dealt with therein, but after December 16, 1970 recruitment was made in accordance with the Tamil Nadu Village officers Service Rules 1970. By these rules a new service of part-time Village officers was constituted and the;, persons who were appointed were paid a fixed amount every month by way of remuneration. Under the Act Of 1981 and the Rules framed thereunder the Village Administrative officers were to be appointed and to be recruited directly. The posts were no longer treated as part-time posts and holders thereof were full time government officials entitled to draw salary every month. Even though the Village officers appointed after December 16, 1970 were in a way different from the village officials appointed prior to that date the two cannot be equated with the new Village officers who were to be appointed under the 1981 Act and the rules made thereunder.
It cannot therefore be stated that Article 14 of the Constitution has been violated in abolishing the posts held by those appointed after December 16, 1970. [662 H; 663 A-E; 663 H; 664A] 4 (i) The State Government will give effect to the memorandum filed on its behalf in the case of those who possess the minimum general qualification prescribed under the Act and the Rules. The State Government shall re-employ all such persons who have not crossed the age of superannuation and who are selected in the new cadre. Until they are so selected they will not be paid any remuneration.
Even if they are re-employed the amount paid to them pursuant to the interim orders will not be recovered. [668 G-H; 669 A] (ii) The compensation, if any payable by the State Government under section s of the Act to those who cease to be village officers shall be adjusted against the amount paid pursuant to the interim orders, and any amount in excess of the compensation, shall not be recoverable. [669 B-C] 633
ORIGINAL JURISDICTION: Writ Petition Nos 5880-82, 6176- A 77, 5921, 5922, 6220, 6426-27, 6355-56, 6264-70,6276, 6178-79, 6191, 1718 of 1980 and 220-22, 2113 of 1981.
(Under Article 32 of the Constitution) K K Venugopal, (6355-56 of 1980) (In W P. Nos. 6212, 6427 & 5880-82/80) F.S. Nariman, (In W.P. Nos. 6264-70/80) R.K Gargo, (In W.P. Nos. 6191 & 6426/80), S.N. Kackar, (In W.P. Nos: 5921/80 & 220/81 and G.L. Sanghi, (In W.P. No. 1718/81) for the Petitioners.
C.S. Vaidyanathan, Vineet Kumar, Parthasarathi, A.T.M. Sampath. Miss Lily Thomas, N.A. Subramanium, Naresh Kumar, Mahakir Singh and S. Srinivasan for the Petitioners.
Lal Narayan Singh, Attorney General (In W.P. No 5880180) M.R Banerjee, Addl. Solicitor General (In W.P. No. 6355/80) R. Rrishnamoorthy, Adv. Genl. T.N. (In W.P. Nos. 1718 & 6276/ 1980) for the Respondents. D Dr. Y. S. Chitale, (In W.P. No. 6426/80), L. M. Singhvi, (In W.P. 6264/80) Mr. Laxmi Kant Pandey and S.S. Ray, (In W.P. 6212 of 1980) for the Respondents.
A.V. Rangam, (In all matters) for the Respondents. E The Judgment of the Court was delivered by VBNKATAR MIAH. J. In these writ petitions, the petitioners who were holders of posts of part-time village officers in the State of Tamil Nadu or associations of such persons have questioned the constitutional validity of the Tamil Nadu Abolition of posts of part-time Village officers ordinance, 1980 Tamil Nadu ordinance No. 10 of 1980) (hereinafter referred to as 'the ordinance') and the Tamil Nadu Abolition of posts of part-time Village officers Act, 1981 (Tamil Nadu Act No. 3 of 1981) (hereinafter referred to as 'the Act) which replaced the ordinance. The total number of posts abolished by the Act is 23,010 In Tamil Nadu, as in other parts of India, the village has been the basic unit of revenue administration from the earliest times of which we have any record. The administration was being carried on at the lowest level by a chain of officers in regular gradation one above the other at the commencement of the Christian era. The 634 same system has been in vogue up till now. It was generally known as the borabaluti system ordinarily consisting of twelve functionaries. In Tamil Nadu, these functionaries were known as (I) headman, (2) karnan or accountant, (3) shroff or notazar, (4) nirganti, (5) toty or taliary, (6) potter, (7) smith, (8) jeweler, (9) carpenter, (10) barber, (11) washerman and (12) astrologer. Of them, the first five only rendered service to Government.
The headman who goes by various names such as monigar, potail, naidoo, reddy, peddakapu etc. is an important officer. He represented the Government in the village, collected the revenue and had also magisterial and judicial powers of some minor nature. As a magistrate he could punish persons for petty offences and as a Judge could try suits for sums of money or other personal property upto Rs. 10/- in value, there being no appeal against his decision. With the consent of the parties, he could adjudicate civil claims up to Rs. 100 in value. The headman has been generally one of 1 the largest landholders in the village having considerable influence over its inhabitants. The karnam or the village accountant maintained all the village accounts, inspected all fields in the village for purposes of gathering agricultural statistics, fixation of assessment and prevention and penalisation of encroachments, irregular use of water and verification of tenancy and enjoyment. The nirgantis guarded the irrigation sources and regulated the use of water. The toty or taliary assisted the village accountant in his work. By the end of the nineteenth century, two Acts were brought into force in the Presidency of Madras for the purpose of regulating the work of some of the village officers. The Madras Proprietary states' Village Service Act, 1894 (Madras Act No. II of 1894) dealt with three classes of village officers viz. village accountants, village headmen and village watchmen or police officers in permanently settled estates, in unsettled palaiyams and in inam villages. It provided for their appointment and remuneration and for the - prevention and summary punishment of misconduct or neglect duty on their part and generally for securing their efficiency. The Madras Hereditary Village offices Act, 1895 (Madras Act No. III of 1895) regulated the succession to certain other hereditary village offices in the Presidency of Madras; for the hearing and disposal of claims to such offices or the emoluments annexed thereto;
for the appointment of persons to hold such offices and the control of the holders thereof. The Village officers dealt with by this Act were (i) 635 village munsifs, (ii) potels, monigars and peddakapus, (iii) karnams, (iv) nirgantis, (v) vettis, totis and tar dalgars and (vi) talayaris in ryotwari villages or inam villages, which for the purpose of village administration, were grouped with ryotwari villages.
Under both these statutes, the village offices were considered as hereditary in character and the succession to all hereditary village offices devolved on a single heir according to the general custom and rule of primogeniture governing succession to impartible zamindaris in Southern India. When the person who would otherwise be entitled to succeed to a hereditary village office was a minor, such minor was being registered as the heir of the last holder and some other person qualified under the statutes in question to discharge the duties of the office was being appointed to discharge the duties of the office until the person registered as heir on attaining majority or within three years thereafter was qualified to discharge the duties of the office himself when he would be appointed thereto. If the person registered as heir remained otherwise disqualified for three years after attaining majority, he would be deemed to have forfeited his right to office and on such forfeiture or on his death, the vacancy had to be filled up in accordance with the provisions of the statutes as if he was the last holder of the office. It is stated that in cases to which the above two statutes were inapplicable, provision had been made by the Standing orders promulgated by the Board of Revenue which were known as the Board's Standing orders for appointing village officers again generally on a hereditary basis. Some of the other distinct features of the service conditions of the village officers appointed under the Madras Act No. II of 1894 of the Madras Act No. III of 1895 or the Board's Standing orders were that they were part-time employees of the Government; that the records maintained by them were allowed to be retained in their houses that there was no attendance register and no fixed hours of duty were prescribed in their case. They were appointed directly by the Revenue Divisional officer and against his order, an appeal lay to the District Revenue officer and then a revision to the Board of Revenue and a second revision to Government. They were not constituted into any distinct service, There was no provision for reservation of posts of village officers G for Scheduled Castes/Scheduled Tribes and backward classes There was no minimum general qualification prescribed prior to the year 1970 for persons to be appointed as village officers under the said - statutes or the Board's Standing orders. It was enough if they were able to read and to write. No period of probation was prescribed after they were appointed. The Fundamental Rules applicable to all other State Government servants, the Pension Rules and the Leave Rules were not applicable to these village officers. They could take up part-time work or occupation after securing necessary permission from the concerned Revenue authorities. There was no age of superannuation fixed in their case and they were not entitled to retirement benefits such as gratuity and pension. All village head men including those who belonged to Scheduled Castes and Scheduled Tribes had to furnish security in the form of property or cash the estimated value of which was not less than half the amount of land revenue and loan demand of the village. They could not be transferred outside their district. In fact very rarely they were transferred. During the period of leave, no honorarium was paid to them and during the period of suspension, no subsistence - allowance was paid. The honorarium paid to them was a fixed amount with no element of dearness allowance.
In M. Ramappa v. Sangappa & Ors. where this Court had to consider whether the officers holding the hereditary village offices under the Mysore Village offices Act, 1908 which contained provisions similar to the provisions of the two Madras Acts referred to above were qualified for being chosen as members of the State Legislative Assembly, it was held that such officers who were appointed to their offices by the Government, though it might be that the Government had no option in certain cases but to appoint an heir of the last holder, held offices of profit under the State Government since they held their office by reason of appointment made by the Government and they worked under the control p and supervision of the Government and that their remuneration was paid by the Government out of the Government funds and assets. Accordingly this Court came to the conclusion that such village officers were disqualified under Article 191 (I)(a) of the Constitution from contesting at an election to the State Legislative Assembly.
In Gazula Dasaratha Rama Rao v. The State of Andhra Pradesh & Ors this Court held that section 6(1) of the Madras Hereditary Village offices Act, 1895 (Madras Act No. 3 of 1895) which Provided that in choosing Persons to fill the new village offices of 637 an amalgamated village under that Act, the Collector should select the persons whom he considered to be the best qualified from among the families of the last holders of the offices in the villages which had been abolished as a consequence of such amalgamation was void as it contravened Article 16 (2) of the Constitution. After the above decision, instructions were issued by the Madras Board of Revenue on March 12, 1962 to the effect that in respect of future vacancies in village offices governed by the Madras Act No. II of 1894 and the Madras Act No. III of 1895 the appointments should be made on temporary basis only following the procedure prescribed under the Board's Standing order No. 156. Since it was felt that the above two Madras Acts which contained provisions providing for appointment to village offices on hereditary basis were violative of Article 16 of the Constitution in view of the pronouncement of this Court in Gazula Dasaratha Rama Rao's case (supra), the State Legislature passed the Madras Proprietary Estates' Village Service and the Madras Hereditary Village offices (Repeal) Act, 1968 (Madras Act No. 20 of 1968) repealing the above two statutes viz. the Madras Act No. II of 1894 and the Madras Act No. III of 1895. The said Act was brought into force with effect from December 1, 1968. It extended to the whole of the State of Madras, except the Kanyakumari district and the Shencottah taluk of the Tirunelveli district (vide section I (2) of the Madras Act No. 20 of 1968). Sub-section (3) of Section 2 of that Act, however, provided that every holder of a village, office, appointed under the Acts repealed by it would, notwithstanding the repeal continue to hold office subject to such rules as may be made under the proviso to Article 309 of the Constitution. Section 3 of that Act directed that any vacancy arising after the date of the commencement of that Act in the village once referred to in subsection (3) of section 2 thereof should be filled up in accordance with the provisions of the Rules made under the proviso to Article 309 of the Constitution. On December 1, 1968, the Governor of Tamil Nadu promulgated a Rule under the proviso to Article 309 of the Constitution providing that "the Standing orders of the Board of Revenue applicable to non hereditary village offices shall apply to every holder of a village office to which the Madras Proprietary Estates Village Service Act, 1894 (Madras Act No. II of 1894) or the Madras Hereditary Village offices Act, 1895 (Madras Act No. Ill of 1895) was applicable immediately before the 1st day of December, 1968" on which date the Madras Act No. 20 of 1968 came into force. Pursuant to section 3 of the Madras Act No. 20 of 1968, the Governor of Tamil Nadu 638 promulgated under the proviso to Article 309 of the Constitution the Tamil Nadu Village officers Service Rules, 1970 providing for the constitution of the Tamil Nadu Village officers Service consisting of (i) village headman, additional village headman, (ii) village karnam, additional village karnam and (iii) talayari and nirganti and the method of recruitment to the said posts. The said Rules came into force on December 16, 1970 and they extended to the whole of the State of Tamil Nadu except the Kanyakumari District and the Shenootah taluk of the Tirunelveli district and the city of Madras. Rule 18 of the said Rules, however, stated that nothing contained in them would apply to persons, who on the date of coming into force of the said Rules, were holding the posts of village headman or additional village headman, village karnam or additional village karnam either temporarily or permanently.
Consequently the said Rules were not applied to the holders of village offices who had been appointed temporarily or permanently under the two repealed Acts and under the Board's Standing orders before the date on which the said Rules came into force. These Rules prescribed that every person who made an application for appointment the post of village headman or additional village headman or village karnam or additional village karnam should possess the following qualifications, namely (i) he should have completed the S.S.L.C. Examination held by the Government of Tamil Nadu and (ii) he should have secured a pass in the special tests specified in cl. (2) of the table given in Rule S thereof in respect of the posts specified in column (I) thereof. On the same date, the Tamil Nadu Village officers (Classification, Control and Appeal) Rules, 1970 and the Tamil Nadu Village officers Conduct Rules, 1970 promulgated under the proviso to Article 309 of the Constitution by the Governor of Tamil Nadu came into force.
These Rules were applicable not merely to the village officers appointed after that date but also to those who had been appointed under the repealed Acts and under the Boards Standing order prior to December 16, 1970. The Tamil Nadu Civil Services (Classification, Control and Appeal) Rules dealt with the disciplinary proceedings that might be instituted against the village officers governed by the them. The Tamil Nadu Village officers Conduct Rules provided that the Tamil Nadu Government Servants Conduct Rules, 1960 as amended from time to time would apply to the village officers subject to the modification specified in rule 3 thereof which provided that the village officers being part- time Government servants might take up part-time work or occupation 639 provided that (I) such part-time work or occupation did not interfere A with their legitimate duties as village officers and (2) the previous permission in writing had been applied for and obtained from the Revenue Divisional officer concerned if the work or occupation was confined to the charge village and from the District Collector concerned if the work or occupation extended beyond the charge village.
From November 15, 1973 all the three sets of Rules which came into force on December 16, 1970, as stated above, became applicable to the village officers in the Kanyakumari district and the Shencottah taluk of the Tirunelveli district also. They, however, continued to be inapplicable to the city of Madras.
In the year 1973, the Administrative Reforms Commission headed by Mr. T.A. Verghese, I.C.S. recommended that the existing part-time village officers should be replaced by regular whole-time transferable public servants and that they should form part of the Revenue hierarchy, disciplined in the tradition of that department and motivated by the incentive of career advancement available in that department. They also recommended that 16,585 survey villages in the State of Tamil Nadu should be grouped into 11,9554 revenue groups. The Commission further recommended that the 11,954 revenue groups should be regrouped into larger village panchayats with a population of about 5,000 and the 8 annual panchayat tax demand of the order of Rs. 5,000. The Commission envisaged that with some marginal adjustment the enlarged village panchayat would be of the order of 4,000 in the State of Tamil Nadu and that there should be a village officer, a village clerk and a village peon in respect of each such enlarged village panchayat and on appointment to these offices, the holders of village offices appointed under, the two repealed statutes and the Board's Standing orders should be removed and the former village offices should be abolished since the Commission felt that "the administration at the grass root level, provided by the present generation of village officers with feudal traditions, is inconsistent with the-egalitarian principles aimed at in our democratic constitution". The Commission further felt that "the reform of village administration has high priority, as it would benefit the whole mass of rural population." The Commission, however, took note of the fact in paragraph 2.11 of its Report that the Government had, in the recent years, attempted to remedy the situation by repealing the Madras Hereditary Village offices Act, 1895 and by framing a set 640 Of new service rules for village establishment under Article 309 of the Constitution. But it was of the opinion that the said Rules, however, did not go far enough as they were not applicable to the existing set of village officers. It was of the view that full-time officers could be expected to service a much larger area than the existing villages or groups of villages and such regrouping of villages into larger groups had to be done carefully taking into account local conditions such as compactness of the group, easy intercommunications, nature of land, number of holdings etc.
The Commission, however, was of the view that such of those among the existing village headmen and karnams, who had passed the S.S.L.C. Examination might be considered for the posts of the village officers and village clerks on their past performance. Similarly as regards village officers working in the Kanyakumari district and the Shencottah taluk of the Tirunelveli district which came over to the State of Tamil Nadu from Kerala in 1956 on the reorganisation of States, the Commission observed that l most of the village officers of those transferred territories who were qualified and full-time Government servants should be absorbed in the new set up as envisaged by the Commission. On May 17,1975, the Governor of Tamil Nadu promulgated the Tamil Nadu Village officers (appointed under B.S. Os) Service Rules, 1974 under the proviso to Rule 309 of the Constitution in respect of the village officers appointed prior to December 16, 1970. The above Rules were, however, kept in abeyance by an order made on July 1, 1975 on receipt of representations from the village officers in regard to the fixation of the age of superannuation at SS years. On August 24,1977, the Chief Minister of Tamil Nadu announced on the floor of the Legislative Assembly that the Government proposed to set up a Committee to . examine whether the posts of karnams could be dispensed with. Thereafter on October 9,]978, the Tamil Nadu Village officers (appointed under B.S.Os) Service Rules, 1978 were issued fixing the age of retirement of the village officers at 60 years. Sub-rule (2) of & Rule I of the said Rules stated that the said Rules would apply to all village officers holding the posts of village headman or additional village headman, village karnam or additional village karnam, talayari, vetti or nirganti either permanently or temporarily on December 16, 1970 provided that at the time of their appointment, they were qualified under the Board's Standing orders. The Government thought that the said Rules would be applicable to all village officers who were holding village offices on December 16,1970 refer- 641 red to in Rule 1(2). But some of the holders of the village offices who had been appointed under the Madras Act No. III of 1895 prior to the decision of this Court in Gazula Dasaratha Rama Rao's case (supra) which as rendered on December 6, 1960, filed writ petitions on the file of the High Court of Madras stating that the Tamil Nadu Village officers (appointed under the b.) Service Rules, 1978 which fixed the age of superannuation of village officers at 60 years were not applicable to them since on a true construction of the said Rules, they were inapplicable to them. The High Court of Madras allowed the said writ petitions by its judgment dated August 18, 1980 holding: "We have already extracted sub-rule (2) of rule 1 of the rules.
That rule expressly states that the rules will apply to village officers, who, at the time of their appointment, were qualified under the Board's Standing orders applicable to them and their appointment had been made by the authority competent under the Board's Standing orders. In respect of these petitioners, who were appointed under the provisions of Madras Act 3 of 1895 before 6th December, 1960, there was no question of their being qualified to be appointed to the village office under the Board's Standing orders applicable to them, and their qualifications and appointment rested solely on the provisions contained in Section 10 of the Act.
Consequently the petitioners herein will not answer the description contained in sub-rule (2) of rule (1) of the rules. If they do not answer the description contained in sub-rule (2) of rules, the rules are not applicable to them and therefore, they cannot be required to retire under rule 4 (1) of the rules." It would appear that some of the other village officers to whom the said Rules had been made applicable had also filed writ petitions on the file of the High Court questioning the validity of the Rules on the ground that the said Rules made a discrimination between them and the village officers who were holding office prior to December 16, 1970 to whom the said Rules were held to be inapplicable by the judgment of the High Court delivered on August 18, 1980 and those petitions were posted for hearing during the first week of December, 1 980. Before the said petitions were taken up for hearing the Governor of Tamil Nadu issued the ordinance on November 13, 1980 abolishing the posts of part-time village officers in the State of Tamil Nadu.
Immediately after the promulgation of the ordinance, steps were taken to take possession of all the records with the village officers who were holding offices on that day and to replace them by Officers appointed under 642 section 14 of the ordinance. Immediately after the promulgation of the said ordinance, some of the village officers who were affected by it questioned its validity before this Court in Writ Petitions Nos. 5880-82 of 1980 and 5921 of 1980. The other connected writ petitions came to be filed thereafter. In the meanwhile the Tamil Nadu State Legislature passed the Act which is impugned in these petitions replacing the ordinance. The petitioners have challenged in these writ petitions the Act also by seeking appropriate amendment of their petitions.
The broad features of the Act are these: The object of the Act is set out in its preamble. Because the State Government was of the opinion that the system of part-time village officers was outmoded and did not fit in with the modern needs of village administration and the State Government had after careful consideration taken a policy decision to abolish all the posts of part-time village officers on grounds of administrative necessity and to introduce a system of whole-time officers to be incharge of village administration, the Act came to be enacted with effect from November 14, 1980 in the place of the ordinance.
The Explanatory Statement attached to the ordinance also contained a statement to the same effect indicating the object of the Ordinance. The expression 'part-time village officers' is defined in section 2 (e) of the Act as village headman (including additional village (headman village) karnam (including chief karnam and additional village karnam) or Triune officer (who was exercising functions of three different village officers) appointed under the Madras Act II of 1894, the Madras Act III of 1895, the Board's Standing orders, the Tamil Nadu village Service Rules, 1970 officers Kuvalar, or any other law but does not include, Grama Kavalar Grama Paniyalar and Pasana Kavalar. Village Administrative officer means an officer appointed under section 4(1) of the Act. By sec. 3 of the Act, the posts of part-time village officers were abolished with effect from November 14, 1980 and every officer holding post so abolished ceased to hold such post. The Act provided for appointment of Village Administrative officers. Section 5 of the Act provided for payment of compensation to those who ceased to be part-time village officers calculated in accordance with the formula mentioned in it. Section 10 of the Act provided that the Act would not apply to the posts of karnams which were held by whole-time Government servants in the city of Madras and the posts of village officers and village assistants which were held by the whole- 643 time Government servant in the Kanyakumari district and Shencottah taluk of the Tirunelveli districts.
Three principal points are urged before us by the petitioners in these petitions (i) that the ordinance and the Act are violative of Art. 19(1)(g) of the Constitution, (ii) that they are violative of Article 311 (2) of the Constitution and (iii) that they contravene Article 14 of the Constitution. The State Government contends that since by the ordinance and the Act, certain posts have been abolished, the officials who were incumbents of the abolished posts cannot raise any of the grounds raised by them.
Entry 41 in List II of the Seventh Schedule to the Constitution confers the power on the State Legislature to make laws with respect to State public services subject to the provisions of the Constitution. Article 309 of the Constitution provides that subject to the provisions of the Constitution, the State Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State. Article 311 (2) of the Constitution states that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the State shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a L reasonable opportunity of being heard in respect of those charges. Article 14 of the Constitution guarantees equality before the law and equal protection of the laws. It is not disputed that any law that is passed in relation to a Government employee should not contravene any of these provisions-Article 19 (1)(g), Article 311 (2) and Article 14 of the Constitution. We shall now proceed to examine the case with reference to each of them.
The power to abolish a civil post is inherent in the right to create it. The Government has always the power, subject, of course, to the constitutional provisions, to reorganise a department to provide efficiency and to bring about economy. It can abolish an office or post in good faith. The action to abolish a post should not be just a pretence taken to get rid of an inconvenient incumbent. We have the following statement of the law in American Jurisprudence 2nd, Vol. 63 at Pages 648-649 :
644 "37. Manner, sufficiency, validity, and effect.
It is not always easy to determine whether a public office has been abolished. It is not sufficient merely to declare that a particular office is abolished, if in fact it is not abolished, and the duties thereof are continued. An office is abolished when the act creating it is repealed. But the repeal of the statute creating an office, accompanied by the re- enactment of the substance of it, does not abolish the office. Abolition of an office may also be brought about by a constitutional provision, or by a new constitution or a constitutional amendment. A non- constitutional office may be indirectly abolished as by legislating away the duties and emoluments of the office.
The legislature may not evade constitutional provisions by a sham or pretended abolition of an office, as where there is mere colorable abolition of the office for the purpose of getting rid of its incumbent. This may happen where an office is abolished in terms and promptly recreated under the same or a different name, provided the legislature does not attach duties and burdens to the new office of a character such as to make it in reality a different office.
Where an office is duly abolished by the legislature or the people, it ceases to exist and the incumbent is no longer entitled to exercise the functions thereof, or to claim compensation for so doing, unless he is under contract with the state so as to come within the protection of the constitutional inhibition against impairment of the obligation of contract. Since a de jure office is generally essential to the existence of a de facto officer, persons cannot act as de facto officers of an office which has been abolished." H. Eliot Kaplan writes in his book entitled "The Law of Civil Service" at pages 214-115 thus :
"8. "Good Faith" in Abolition of Positions-There of course, is no vested right to employment in the public service. The notion, much too prevalent, that any one who has been appointed after a competitive examination is entitled to be retained in the service is erroneous. Where there is any reasonable justification for eliminating positions in the public service, even where such abolition of positions may be subject to judicial review, the inclination of the courts is not to interfere, avoiding substitution of judicial wisdom or judgment for that of the administrator.
A position is not lawfully abolished solely because it has been left vacant for a short period of time and subsequently filled by another appointee than the one laid off and entitled to re-employment.
Good faith of a head of department in abolishing a position on alleged grounds of economy has often been challenged. Most courts have held that the issue of good faith on the part of an administrative official is one of law solely for the court to pass on, and not an issue of fact which may be submitted to a jury for determination. The jury may determine the facts, which the court in turn may find as a matter of law constitute bad faith; but a verdict by a jury that a department head had acted in bad faith in abolishing a position was set aside as a conclusion of law, and not properly finding of fact. What constitutes bad faith as a matter of law in abolishing positions must be determined by the precise facts in each case. As a general rule, where positions are purported to be eliminated and incumbents laid off, and thereafter identical or similar positions are re-established and the positions filled by others not entitled under the Civil service law and rules to such employments, the courts will not hesitate to order re-employment of the laid off employees." The above passages sum up the law on the question of abolition of posts in civil service as it prevails in United States of America.
In England too there is provision for compulsory premature retirement in the public interest on structural grounds, grounds of limited efficiency and redundancy. (Vide paragraph 1303, Vol. 8 Halsbury's Laws of England 4th Edn.) 646 In the instant case, the abolition of the posts of village officers is sought to be achieved by a piece of legislation passed by the State Legislature. Want of good faith or malafides cannot be attributed to a Legislature. We have only to see whether the legislation is a colourable one lacking in legislative competence or whether it transgresses any other constitutional limitation.
So far as the argument based on Article 19 (1) (g) of the Constitution is concerned, we are bound by the view expressed by the Constitution Bench of this Court in Fertilizer Corporation Kamgar Union (Regd), Sindri & Ors. v. Union of India & Ors. in which Chandrachud, C.J. has observed at pages 60-61 thus :
"The right to pursue a calling or to carry on an occupation is not the same thing as the right lo work in a particular post under a contract of employment. If the workers are retrenched consequent upon and on account of the sale, it will be open to them to pursue their rights and remedies under the Industrial Laws.
But the point to be noted is that the closure of an establishment in which a workman is for the time being employed does not by itself infringe his fundamental right to carry on an occupation which is guaranteed by Article 19 (1) (g) of the Constitution. Supposing a law were passed preventing a certain category of workers from accepting employment in a fertiliser factory, it would be possible to contend then that the workers have been deprived of their right to carry on an occupation.
Even assuming that some of the workers may eventually have to be retrenched in the instant case, it will not be possible to say that their right to carry on an occupation has been violated. It would be open to them, though undoubtedly it will not be easy, to find out other avenues of employment as industrial workers.
Article 19 (1) (g) confers a broad and general right which is available to all persons to do work of any particular kind and of their choice. It does not confer the right to hold a particular job or to occupy a particular post of one's choice. Even under Article 311 of the Constitution, the right to continue in service falls with the abolition of the post in 647 which the person is working. The workers in the instant case can no more complain of the infringement of their fundamental right under Article 19 (1) (g) than can a Government servant complain of the termination of his employment on the abolition of his post. The choice and freedom of the workers to work as industrial workers is not affected by the sale. The sale may at the highest affect their locum, but it does not affect their locus, to work as industrial workers. This is enough unto the day on Art. 19 (1) (g)." In view of the above ruling, it is not possible to hold that the Act violates Article 19 (1) (g) as it does not affect the right of any of the incumbents of the posts to carry on any occupation of their choice even though they may not be able to stick on to the posts which they were holding.
We shall next examine the argument based on Article 311 (2) of the Constitution. We have already seen in the Fertilizer Corporation Kamgar Union's case (supra) the observation to the effect 'Even under Article 311 of the Constitution, the right to continue in service falls with the abolition of the post in which the person is working.' It is said that the 'act of removing a person from a chair is different from the act of removal of the chair itself' although the incumbent loses the chair in both the cases.
Since it is. strenuously urged before us that there is some amount of contradiction in some of the rulings of this Court, we shall review the legal position to the extent necessary before reaching our own conclusion on the question.
The doctrine that the tenure of a holder of a civil post is dependent upon the pleasure of the Crown is peculiar to English law.
In India, Article 310 of the Constitution of India provides :
"310 (1) Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all India service or holds any post connected with defence or any civil post . under the Union holds office during the pleasure of the President, and every Person who is a member of a civil 648 service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.
(2) Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor of the State, any contract under which a person, not being a member of a defence service or of an all-India service or of a civil service of the Union or a State, is appointed under the Constitution to hold such a post may, if the President or the Governor, as the case may be, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post." While the doctrine of pleasure incorporated in Article 310 cannot be controlled by any legislation, the exercise of that power by the President or the Governor, as the case may be, is however made subject to the other provisions of the Constitution, one of them being Article 311, which is not made subject to any other provision of the Constitution and is paramount in the field occupied by it. The contention urged before us is that every kind of termination of employment under Government would attract Article 311 (2) of the Constitution and a termination on the abolition of the post cannot be an exception. While construing Article 311 (2) of the Constitution, as it stood then, in Parashotam Lal Dhingra v. Union of India, Das, C.J. Observed :
"The Government cannot terminate his service unless it is entitled to do so (I) by virtue of a special term of the contract of employment, e.g., by giving the requisite notice provided by the contract or (2) by the rules governing the conditions of his service, e.g., on attainment of the age of superannuation prescribed by the rules, or on the fulfillment of rule conditions for compulsory retirement or subject to certain safeguards, on the abolition of the post or on being 649 found guilty, after a proper enquiry on notice to him, of misconduct, negligence, inefficiency or any other disqualification." (emphasis added) Again at pages 857-858 in the same judgment, the learned Chief Justice observed :
"The foregoing conclusion, however, does not solve the entire problem, for it has yet to be ascertained as to when an order for the termination of service is indicted as and by way of punishment and when it is not. It has already been said that where person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily, retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with Art. 311 (2)." (emphasis added) It may be mentioned here that the words "subject to certain safeguards" found in the earlier extract are not used with reference to abolition of posts in the above extract. Later on, Das, C.J observed that the Court should apply two tests namely (1) whether the servant had a right to the post or the rank or (2) whether he had been visited with evil consequences such as loss of pay and allowances, a stigma affecting his future career in order to determine whether the removal of an officer from a post attracted Article 311 (2). The decision in Parshotam Lal Dhingra's case (supra) was reviewed by a Bench of seven Judges of this Court in Moti Ram Deka etc. v. General Manager, N.E.F. Railways, Maligaon, Pandu v. etc. In that case the question which arose for consideration was whether Rules 148 (3) and 149 (3) of the Indian Railway Establishment Code violated either Article 311 (2), or Article 14 of the Constitution.
Sub-rules (1) and (2) of Rule 148 dealt with temporary railway servants and apprentices respectively. The relevant part of Rule 148 (3) read thus :
650 "148 (3) other (non-pensionable) railway servant:- The service of other (non-pensionable) railway servants shall be liable to termination on notice on either side for the periods shown below. Such notice is not however required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity." Rule 149 was brought into force in the place of Rule 148 in the case of pensionable servants in November, 1957.
Here again, sub-rules (1) and (2) of Rule 149 dealt with temporary railway servants and apprentices. Rule 149 (3) read thus:
"149 (3) other railway servants:- The services of other railway servants shall be liable to termination on notice on either side for the periods shown below.
Such notice is not however, required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity." The majority judgment in this case, however, observed that a Government servant on being appointed to a post permanently acquired a right to hold the post under the Rules until he attained the age of superannuation or was compulsorily retired or was found guilty of an act of misconduct in accordance with Article 311(2). It disapproved the statement found in Parshotam Lal Dhingra's case (supra) at pages 857-858 to the extent it recognised the removal of a permanent Government servant under a contract express or imp lied or a service rule. After referring to one passage at page 841 and another at page 843 in Parsotam Lal Dhingra's case, Gajendragadkar, J. (as he then was), who delivered the majority judgment in Moti Ram Deka's case (supra) observed at pages 718-719 thus:
'Reading these two observations together, there can be no doubt that with the exception of appointments held under special contract, the Court took the view that wherever a civil servant was appointed to a permanent post substantively, he had a right to hold that post until. he reached the age of superannuation or was compulsorily retired, 651 or the post was abolished. In all other cases, if the services of the said servant were terminated, they would have to be in conformity with the provisions of Art. 311(2), because termination in such cases amounts to removal. The two statements of the law to which we have just referred do not leave any room for doubt on this point." (emphasis added) It may be noticed that removal of a Government servant from a post on its abolition is recognised in the above passage as a circumstance not attracting Article 311(2) of the Constitution. The Court after a review of all the decisions before it including the decision in Parshotam Lal Dhingra's case (supra) held that the above two Rules 148 (3) and 149 (3) which authorised the removal officers holding the posts substantively by issuing a mere notice infringed Article 311 (2) of the Constitution. The question of abolition of posts did not arise for consideration in this case. The validity of removal of a Government servant holding a permanent post on its abolition was considered by Desai, J. and Chandrachud, J. (as he then was) in P.V. Naik & Ors. v. State of Maharashtra & Anr.(1) The learned Judges held that the termination of service of a Government servant consequent upon the abolition of posts did not involve punishment at all and therefore did not attract Article 311(2).
Since much reliance is placed by the petitioners on the decision of this Court in State of Mysore v. H. Papanna Gowda & Anr. etc.(2) it is necessary to examine that case in some detail. The facts of that case were these: The respondent in that case was holding the post of a chemical assistant in the Agricultural Research Institute, Mandya in the Department of Agriculture of the State of Mysore. Under the Mysore University of Agricultural Sciences Act, 1963 which came into force on April 24, 1964, the University of Agricultural Sciences was established. Sub-section (5) of section 7 of that Act provided:
"7. (5) Every person employed in any of the colleges specified in sub-section (1) or in any of the institutions referred to in sub-section (4) immediately before the appointed 652 day or the date specified in the order under sub- section (4), as the case may be, shall, as from the appointed day or the specified date, become an employee of the University on such terms and conditions as may be determined by the State Government in consultation with the Board." The Board referred to in the above sub-section was the Board of Regents of the University. By a notification dated September 29, 1965 issued under section 7(4) and (5) of that Act, the control and management of a number of research and educational institutions under the Department of Agriculture were transferred to the University. Along with them, the Institute in which the respondent was working was also transferred to the University. The result was that the respondent ceased to be an employee of the State Government and became an employee of the University. Thereupon he questioned the validity of sub-sections (4) and (5) of section 7 of the said Act on the ground that they contravened Article 311(2) of the Constitution before the High Court of Mysore, which upheld his plea. The State Government questioned the decision of the High Court before this Court in the above case. This Court affirmed the decision of the High Court holding that Article 311(2) of the Constitution had been contravened as the prospects of the respondent in Government service were affected. In this case the parties proceeded on the basis that there was no abolition of post as such as can be seen from the judgment of the High Court. The only ground was whether when the post continued to exist though under a different master, in this case it being the University, it was open to the State Government to transfer its employee to the control of a new master without giving an option to him to state whether he would continue as a Government employee or not. The court was not concerned about the consequences of abolition of a post as such in this case. As can be seen from the judgment of the High Court in this case (vide Papanna Gowda v. State of Mysore(1) one serious infirmity about the impugned provisions was that whoever was holding the post in any of the institutions transferred to the University automatically ceased to be the Government servant. Even if the case was one where abolition of the post was involved, the law should have made provision for the determition of the employees in the cadre in question who would cease to be 653 Government employees with reference to either the principle of 'last come, first go' or any other reasonable principle and given them an option to join the service under the new master instead of just transferring all the employees who were then working in the institutions to the University. The impugned provisions were not rules dealing with the age of superannuation or compulsory retirement. Nor the case was dealt with on the principle of abolition of posts. The decision in this case takes its colour from the peculiar facts involved in it. One principle that may be deduced from this decision is that if a post is not a special post and its incumbent is a member of a cadre his rights as a member of the cadre should be considered before deciding whether he has cased to be a government employee on the abolition of the post. It is likely that on such scrutiny the services of another member of the cadre may have to be terminated on its abolition or some other member of the cadre may have to be reverted to a lower post from which he may have been promoted to the cadre in question by the application of the principle of 'last come, first go'. If, however, where the post abolished is a special post or where an entire cadre is abolished cadre and there is no lower cadre to which the members of the abolis
