K. RAJENDRAN & ORS. ETC. ETC. versus STATE OF TAMIL NADU & ORS.

K. RAJENDRAN & ORS. ETC. ETC.

STATE OF TAMIL NADO & ORS.

April 15, 1982·

[S. MURTAZA FAZAL ALI, E.S. VENICATARAMIAH AND A. VARADARAJAN, JJ.)

Constitution of India 1950, Article1 14. 19 (I) (g), 32 and 311 (2) & Tamil ~

Nadu Abolition of posts of part-time Village Officers Act 1981, Ss,2 (•), 3 and 5.

State enactment-Abolition of civil po1ts-Posts of'part-time' village offictr1 abollshtd-lntroduction of whole-time village administrative o.ffictr1-Whethtr valid and legal.

Civil Servic~Civil post-Abolition ~f Polt-Whether 'govtrnmen.t has right-Abolition of post and abolttion of cadrt-Di.stinction-Rights of the incum· bent of the post.

In the State of Tamil Nadu the administration was carried on at the village level by 3. chain bf officers in regular gradation one above the Other since the comlnencement Or the Christian era. This system .known as the barabaluti system consisted of twelve functionaries : (i) headman, (2) kamam or acc®ntant, (3) shroff or notazar; ( 4) nirganti, (5) toty or taliary, (6) potter, (7) smith, (8) ieweller .. (9) carpenter, (!O) barber, (II) washerman and (12) astrologer. The first five rendere.d service to the Government. By the end of the ninCteenth century, two Acts were enacted for the purpose of regulating the work of these village offices.

The Madras Proprietary States' Village Service Act, 1894 (Madr's Act No.11of1894) dealt.with three classes of vihage officers viz. village accountants, village headman and yiJlage 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. Ill of 1895) regulated the succession to certain other hereditary village offices and provided for the appointment of persons to bold such offices and the control or the holders thereof. Under both these statutes, the village offices devolved on single heir according to the general custom and rule of primogeniture governing succession to i(l)partible zamidaris. Io cases to which the aforesaid two 'Statutes. were inapplicable provision was made by the Standing Orders promulgated by the Board of Reveoile, which were known as the Board's Standing Orders for appointing village offi:ers on hereditary basis.

The distinctive features of the service conditions of the village officers appointed under the a:foresaid two Acts or the Board's Standing Orders were that they were part~time employees of th~ Government, tbey fiCre appointed direct1y by the Revenue Officer, the records maintained by them could be retained in their frouses, 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 dis~ charged. 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 Daaaratha 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 temporay basis, and the State Legislature enacted the Madras Pro-prietary Estates' Village Service and the Madras 'Hereditary Village Offices '(Repeal) Art, 1968 repealing the 1894 and 1895 Acts. Pur-suant to section 3 of this Act, the State Government promulgated that Tamil Nadu Village Officers Service Rules, 1970 which provided for tbe constitution of the Tamil Nadu Village Officers Service, consisting of (i) Village ileadman, additional village headman, (ii) village kamam, additional village karnam, and (iii) taJayari 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 recom-menda1ion and promulgated on May 17, 1975 tho Tamil Nadu ViJlage Officers (appoirited under B,S, Os) Service Rules 1974. Thereaf1er 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 of6cCrs at 60 years.

On November 13, 1980, the Tamil Nadu Abolition of posts of part-time Village Officers 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 d.Ppointmcnt of Village Administrative Officers. By section 3 of the Act, the posts of part-time village officers were abolished with eff~ct from November 14, 1980.and every officer holding post so abolished ceased to hold such post, and secl!On 5 provided for payment of compensation to those who ceased to be part-time villas• 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 Con,titution, The State Government contested the p6titions and contended that the State, Government being of the opinion that the

!l 9S2i 3 s.c.t\..

8ln>IU!Mli .couat REJ.'Oat~

system of part·time Village-Officers was out·moded and did not fit in with the modem needs of village administration, after careful consideration taken the policy decision to abolish all tho posts· of part•time village offii:ers on grounds of administrative necessity and to introduce system of whole-time officers to be incharge of the village administration. To achieve this, the Ordinance was promulgated on November J4, 1980 which was later, , replaced by the Act. It Was further contended, that since b)"tho Ordinance and the Act, certain posts had· been abolished, the petitioners who were incumbents of tho abolished posts could nottaiso any of the grounds raised by thorn •.

Dismissing the petitions.

HELD : 1. (I) Tho power to abolish civil post is inherent in tho right to create it. The Government bas always- the power, subject to the consti· tutional provisions to reorganise department to provide cfficiency1 and to bring about economy. It can .abolish an office or post in gopd faith. The action to abolish post should not be just pretence taken to got rid of an inconvenient incumbent, (643 OJ

American Jurisprudene1 2d vo/.63 p, §48·649: H. Eliot Kap/a,,....,The Law of Civil Service pp 214-215 referred to.

In tho instant case tho abolition of the posts of village officers 'was sought to be achieved by piece of legislation passed by the State Legislature, namely tho Tamil Nadu.Abolition of posts of part-time Village Officers Act, 1981. Want of good faith or ma!afides cannot be attributed to tho Legislature. (646 A]

(ii)· Tho Act is ~ot violative or Article 19 (I) (g) as it does not affect the rfght of any of the incumbents of the posts to carry on any oecupation of their choice oven though they may not be able to stick on to tho posts which they wore holding. (647 CJ

Fertilizer Corporation Kamgar Union (Regd.} Sindri & Ors. v. Union of lnilia & Ors, (1981] 2 SCR 52, referred to.

2. (i) The doctrine of pleasure incorporated in Article 310 cannot be con· trolled by any legislation; but the exercise of that power by the President or tho Governor, is however made subjecl to the other provisions of the Constitution, one of them being Article 31 t, which is not made subject to any other provision of tho Constitution and is paramount in tho field occupied by it. (648 D-BJ \ .

(ii) The terminatiOn of service of Government servant consequent upon the abolition of posts does not involve punishment at all and therefore doeA not attract Article 311 (i). (654 B; 654·B] ·

Parashotam Lal Dhingra v. Union of India (1958] SCR 828 at 841, Motl Ram Dtka ttc. v. Gt1,1tral Manag1r, N.E.F., Railw~y1, Maligaon, Pandu 1tc.

,.,,.-·

[1964]SSCR683andP.V. Naik & Ors. v. State ofMaharashtra&Anr.,AIR 1967 Born, 482, referred to.

(iii) If post is not special post and Its incumbent is member of cadi-e his rights as member of the cadre should be considered before deciding whether he has ceased to be government empioyee on· the abo!ition 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 lower post from which hC 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 i,"a special post or where an entire cadre is abolished and there is no lower cadfe to which the members of the abolished cadre can. reasonably be reverted, the application· Of this principle may not ~rise at all.

[6S3 C,DJ

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 legislatute Or the Ell:e'cutive 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 staffing1 patterns of the civil service necessitating either the_ increase or the decrease in tbe number of posts. This power is inherent in the very concept of governmental administration. To deny that P,owef to the GoverD.ment is to strike at the very roots' of proper public administration. This power to abolish post which may' • result in the holder thereof ceasing to be Government servant has got to be recognised; ·but any action legislative or executive taken pursuant to that power is always subject to judicial review. (,6S6 J)

Jil

M. Ramanatha Pillai v. The State of Kera/a & Anr. (1974) I S.C.R. SIS, Champaklal Chimanlal Shah v. The Union of India [1964J S S.C.R.- .190, Salish Chandra Anand v. The Union of India (1953) S.C.R. 6S5, Shyam Lal v. State of U,P, and Union of India [19SS] l S.C.R. 26, State of Haryana v. Des Raj Sangar & Anr. [1976] 2 S.C.R. 1034, referred to.

Abdul Khalik Renzu & Ors. v. The State of Jammu and Kashmir , AJf-. , 1965 J & K 15. overruled.

In thtl instant case it cannot be said that tho State Act by which the villaie officers in the' State of Tamil Nadu were abolished; contravenes Article 311, (2).

[657 F]

(v) The posts of village olfic".'s which were governed by the Madras Act II of 1894, the Madras Act iii Qf 1895 and the Board's Standing Orders were feudalistic in character and the appointment to these posts were governed by the 1aw of primogeniture; the family in which the applicant was born, the village in which be was born, atid the fact whether be owned any property in the village or not. Thoee factors are , alien to modern-administrative service and clearly

[19S1]'3 s.C.&.

SUPRiiMll COURT RiiP<iats

opposed to Articles 14 and 16. The Administrative Reforms Commission rightly recommended their abolition and reorganisation of the village service. . [657 µ; 658 AC]

(vi) Having regard to the abolition of similar village offices in the neigh-bouring States of Karnataka and Andhra Pradesh and the agitation in the State of Tamil Nadu for reorganisation of vilJage service, the decision to aboliSh the village offices which wcr~ feudalistic in character ~nd a~ anachronism in the modern age cannot be said to be arbitrary or unreasonable. [660 CJ

BR. Shankaranarayana & Ors. v. The State OJ. Mysore & Ors. A.l.R. 1966 S.C. 1571, B.H. Honnalige Gowda v. State of Mysore & Anr., A.LR. 1964 Mysore 84, referred to.

3. (i) Any classification under Article 14 should satisfy two tests : (i) that there exists an intelligibJe differentia between those who are grouped together and those who are not included in the group, and (ii) that there exists reasonable nexus between the differentia and the object for which c1ussification is made.

[662 I'] •

(ii) Upto December 16, 1970 all appointments to Village Officen 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 new service of part-time Village Officers was constituted and· the persons who were appointed were paid 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 goverr.ment officials entitled to draw salary every month. Even though the Viilage Officers appointed after December 16, 1970 were in 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 Cons .. titution 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 gen_eral qualification pres-cribed under the Att and the Rules. The State Governmen.t shall re-employ all such persons who have not crossed the age or' superannuation and who are selected in the new cadre. UntiJ they are so selected they wiJI 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 G_overnment 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. ex~ss of the compensation, shall not be recoverable. [669 B-C]

It, Jl.AJ6NDll.AN v, 'fAMIL NADU (Venkataramiah, J.)

ORIGINAL JURJ~DICTION: Writ Petition Nos. 5880-82, 6176-77. 5921, 5922, 6220, 6426-27, 6355-56, 6264-70,6276, 6178-79, 6191, 1718 of 1980 arid 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, Vlneet Kumar, Parthasarathi, A.T.M. Sampath, Miss Lily Thomas, N.A. Subramanium, Naresh Kumar, Mahabir Singh and S. Srinivasan for the Petitioners.

Lal Narayan Singh, Attorney General (In W.P. No 5880/80) . M.K. Banerjee, Addi. Solicitor General (In W.P. No. 6355/80) R. Krishnamoorthy, Adv. Genl. T.N. (In W.P. Nos. 1718 & 6276/ 1980) for the Respondents.

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.

The Judgment of the Court was delivered by

VENKATARAMIAH. J, In these writ petitions, the petitioners who were holders of posts of part-time village officers in the St'\'te of Tamil Nadu or associations of such persons have questioned the cons-titutional validity of the Tamil Nadu Abolition of posts of parttime Village Officers Ordinance, 1980 Tamil Nadu Ordinance No. IO 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 l.evel by chain of officers in regular gradation one above the other at the commencement of the Cluistian era. The

same system has been in vogue uptil now. It was generally known as the borabaluti system ordinarily consisting of twelve functionaries. In Tamil Nadu, these. functionarie> were known as (I) headl\lan, (2) karnam or accountant, (3) shroff or notaiar, (4) nirganti, (5) toty or taliary, (6) potter, (7) smith, (8) jeweller, (9) carpenter, (10) barber, (II) 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. i2 an important officer. He represented the Government in the village, collected the revenue and had also magisterial and judicial powers of some min or nature.· As magistrate he could punish persons for petty offences and as Judge could try suits for §Ums 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 upto Rs. JOO/- in value. The headmati has been generally one of 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 acc0untant in his work. By the end of the ninetellllth century', two Acts Were brought into force in the Presidency of Madras for the purpose of regulating the work· of som·e of the village officers. The Madras Proprietary Estates' 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 perma-nently 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 of 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).

. It. 11.AlllNDRAW v, TAMIL NADU (Venkataramiak, J,)

village munsifs, ·(ii) potels, monigars and peddakapus, (iii) karnams, (iv) nirgantjs, (v) vettis, totis and tar dalgars and (vi) talayariS in-ryo'twari 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 single heir according to the general ci.stom and rule of primogeniture governing succession to impartible zamin· . daris in Southern india. When the person who would otherWise be entitled to succeed to hereditary village office was minor, such minor was being registered· as the heir of the last holder and some other person qualified · u11der 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 rii/ht to office and on such forfeiture or on ·his death, the vacancy had to be filled up in accordance with the provisions of the statute~ 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 tt1ade by the Standing Orders promulgated by the Board of Revenue which were known as the Board's Standing Orders tor appointing village officers again generally on 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 rt!cords 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 appointeCI directly by the Revenue Division8' Officer and against his order, an appeal lay to the District Revenue Officer and then revision to the Board of Revenue and second revision

to Government. They were not constituted into any distinct service, There was no provision for reservation of posts of village officers · for Scheduled Castes/SCheduled Tribes and backward classes. There was no miniinum general qualification (prescribed ptior to the year 1970 for persons to be appointed as village officers under the said statutes or the Board's St~nding Orde~s. It was enough if they were able to read and to write. No period of probation was pres-

[198.2] 3 s.c.k.

SlJ!>kEME cotJkr REPORTS

cribed after they were appointed. The Fundamental Rules appli· cable 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 ot occupation after securing necessary permission Jrom 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 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 appoint-ment made by the Government and they worked under the control 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 (l)(a) of the Constitu· tion from contesting at an election to the State Legislative Assembly.

In Gazula Dasaratha Rama Rao v. The State of Andhra Pra· desh & Ors,(') this Court held .that section 6(1) of the Madras Here· ditary Village Offices Act, 1895 (Madras Act . No. 3 of 1895) whiCh provided that in choosing persons to..fill the new village offices of

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 bad been abolished as consequence of such amalgamation was void as it contravened Article I 6 (2) of the Constitution. After the above decision, instructions· were iss.ued 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 189S, 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 appoint-ment to village offices on hereditary basis we~ violative of Article 16 of ihe Constitution in view of the pronouncement of this Court in Gazula Dasqratha Rama Rao's case (supra), ·the State Legislature pass· ed the Madras Proprietory· 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 )'fo. II of 1894 and the Madras Act No. III of 1895. The said Act was brou-ght into force with effect from December l, 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 1 (2) of the Madras Act No. 20 of 1968). Sub-section (3) of Section 2 of that Act, however, provided that every holder of village, offiice, appointed under the Acts r~pealed by it would, notwithstanding the repeal continue to bold 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 office referred to in sub· section (3).. of section 2 thereof should 1 be filled up in accordance with the provisions of the Rules made under the proviso. to Arti· cle 309 of the Constitution. On December 1, 1968, the Governor of Tamil Nadu promulgated 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 village office to which the Madras' Proprietary Estates Village Service Act, 1894 (Madras Act No. II of 1894) or the Ma.;Iras Hereditary Village Offices. Act, 1895 (Madras Act No. III. of 1895) was applicable immediately before the !st day of December, I 968" 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 Tainil Nadu

promulgated under the proviso to Article 309 of the Constitution the TamiJ Nadu Village officers Servii;e Rules, 1970 providing for the constitutioµ of the Tamil Nadu Village Officers Service consisting of (i) village headman, additional village headm11n, (ii) village karnam, additional village karnam and (iii) tal11yari and nirganti and the method of recruitment to the said posts~ The said Rules came into force on December I 6, 1970 and they extended to the whole of the· State of Tamil Na<lu except the Kanyakumari District and the Shenootah taluk of the Tirunelveli district. and. the city of Madras. Rule I 8 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 lieadman or additional village headman, village karnam or additional village katnam 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 repea- · led 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 apppoint-.meot the post of village headtna11 or' additional village headman or village kitrnam or additional _village karnam should possess the following qualifications, namely (i) he sl)ould have completed the S.S.L.C. Examination held by the Government of Tamil Nadu and (ii) he should have secured pass in the special tests specified in cl. (2) of the table given in Rule 5 thereof in respect of the posts specified in column (1) thereof. On the same date, the Tamil Nadu Village Officers (Classification, Contro.1 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 Board's Standing Order prior to December I 6, 1970. The Tamil Nad~ 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 Na.du 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 worlc or occupation

..,,..,.-----

provided that (I) such part-time work or occupation did not interfere 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 con-cerned if the work or occupation extended beyond the charge vill'age. .From November l~, 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 Tirun.elveli 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 depart-ment and motivated by the incentive of career advancement a\'llilable in that department. They also recommended that 16,585 survey. villages in the State of Tamil Nadu should be grouped into 11,954 revenue groups. The Commission further recommended that the 11,954 revenue groups should be regrouped into larger village panchayats with population of about 5,000 and the 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 J>e village officer, village clerk and 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 constitu-tion". 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. rI 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 framins a]set

' 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 !lot 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 much larger area than the existing villages or groups of v!llages and such regroupin11 ofvillages into larger groups had to be done carefully taking into account lqcal conditions such as compactness of the grjlup, easy inter· communications, nature of land, nu~ber of h~ldings etc. The Commission, however, was of the view that such of those among the existing village headmen and karnams, who had passed th1: S.S.L.C. Examfoation might be considered for the posts of the village officers and village clerks on their past perfor-mance. Similarly as regards village officers working in the Kanyakumari district and the Shencottah taluk of the· Tirunel· veli district which came over to the State of Tamil Nadu from Kerala in I 956 on the reorganisation of States, the CommissiQll observed that most of the village officers of those trans· ferred 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 Tami) 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 represen-tations from the village' officers in regard to the fixation of the age of superannuation at 55 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 Committee to . 1[:xamine ][whether the posts of karnams could be dispensed with. ]Thereafter on October 9,1978, ihe Tamil Nadn 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 1 of the said R.ules 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, talay ari, 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 Govern-ment thought that the _said Rules . would be applicable to all village officers who were holding village offices on December_ 16,1970 refer·

red to in Rule I (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.S.Os) .Service Rules, 1978 which fixed the age of superannuation of village officers. at 60 years were not applicable to them since on true construction of the said Rules, they were inapplicable to them. The High Court of Madras11llowed 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 appoi!'.ltment had been made by the authority competent under the Board' S• Standing Orders. In respect of these peti-tioners,· 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 pro'visions contained in Section lO of the Act. Consequently the petitioners herein. will not answer the description contained in sub'.rule (2) of rule (I) of the rules. If they do not answer the description contained in sub-rule (2) of rules, the rules are not applicable tothem and therefore, they can not be required to retire under rule 4 (I} of the ru!es.". · ,• ··-

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 Rqles made discrimination betw6en 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 petilions were posted for hearing during the first week 'of December, 1980. 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 promulagation of the Ordinance; steps were taken to take posses· sion .of all the records with the village officers who were holding pJfices on that day and. to replac~ tl!em by'officers appoillted under . ' . . -~ "

I I 982] 3 S.C.R.

S•ection 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. fa the meanwhile the Tamil Nadu State Legislature pdssed 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 out-moded and did not fit in with the modern needs of village administra-tion and the State Government had after careful consideration taken . policy decision to abolish all the posts of part-time village offi-cers on grounds of admillistrative necessity and to introduce sys-tem of whole-time officers to be incharge of village admininistration, 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 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 h<,adman (including additional village (headman village) karnam (including chief karnam and additional village karnam) or Triu11e officer (who was exercising functions of •three different village officers) appointed under the Madras Act II of'I 894, 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; Orama Kavalar Orama Paniyalar and Pasana Kavalar. Village Ad-ministrative. 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 wc:re 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 Ac:t provided for payment of compensation Jo those who ceased to be part·tinie 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·

. K. RAIENDRAN v. TAMIL NADU (Venkataramiah,.J.)

time Government servaut in the Ka~yakumari district and Sheitcottah taluli 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(J)(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 Orpinance 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 pro vi-. sions of the Constitution, the State Legislature may regulate the recruit111ent ancj conditions of service of persons appointed to public service~a'!d posts in connection with tl!e affairs of the State. Article 311 (2) of the Constitution states that no person who is member · · of civil service of the Union or an all-India service or Civil service of State or bolds civil post under the State shall be dis-missed or removed or reduced in rank except after .an inquiry in which be bas been informed of the charges against him .and given reasonable opportunity of being beard 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-1! Government employee should not contravene any of these provisions-Article 19 (l)(g), Article 311 (2) ---.__ and Article 14 of the Constitution. We shall now proceed to exa-• mine the case with reference to each of, them.The power to abolish civil post is inherent in the right to create it. The Government h.as always the power, subject, of course, to the ccmstitutional provisions, to re-organise a· department to provide efficiency and to bring about economy. It can abolish .an office or post in good fa_ith. The action to abolish post should not be jus·t pretence taken to get rid of an inconvenient focumbent. We have the following statement of the t&w in American lurispru-dence 2nd, Vol. 63 at Pages 648-649 ;

(1982] 3 S.C.R.

"37. Manner, sufficiency, validity, and effect.

It is not always easy to determine whet~er public office has been abolished~!! is not sufficient merely to declare that partic~lar office is abolished, if in fact it is · not abolished, and the. duties thereof are continued. An 8 office is abolished wlien 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 ofti'ce may also be brought about by constitutional provision, or by new constitu· tion or constitutional amendment. nonconstitutional office may be indirectly abolished as by legislating away the duties and emoluments of the office.

The legislature may not evade constitutional provi-sions by 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 re-created under the same or different name, provided the legislature does not attach duties and burdens to the new ·office of character such as to make it in reality different office.

Where an office is duly abolished by the legislature or'tbe 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 be is under contract with the state so as to come within the protection of the constitutional inhibition against impairment of the obliga-tion of contract. Since de jure offi9e i's generally essential to the existence· of de fr.·cto officer, persons cannot act as de facto officers of an office which has been abolished."

H. Eliot Kapla6 writes in bis 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 ser-vice. The notion>' much too prevalent, that any one who bas been appointed :ifter a~ompetitive examination is entit-

/ ' k. RAJENl'>RAN I'. TAMIL NADU (Venkataramiah, J.)

led td be retained in the service is erroneous. where there is any reasonable justification for eliminating positions in the public seivice, 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 admini~trator.

position is not lawfully, abolished solely because it has been left vacant for short period of time and subse-quently filled by another appointee than the one laid off and entitled to re-employment.

· Good _faith of head of, department in abolishing position on alleged grounds of economy has often been challenged. Most courts' have held that the issue of good faith on ihe 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 oubmitted to jury for determination. The jury may determine the facts, which the court in turn may find as matter of law constitute bad faith; but a.verdict by jury that department head had acted in bad faith in abolishing positron was set aside as conclusion of law, 1 and not properly finding of fact. What constitutes· bad \fajth as matter of law 'in abolishing positions must be determined by the precise facts in each case .. As 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 undeflthe civil. service law and rules to such employments, the' courts will not hesitate to order re-emplo}ment of the laid off employees;"

\ / The above passages sum up the. law on the question Of aboli-tion of posts in, civil service as it prevails'.in United States of An\erica ..

' In England too ther~ 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.)

[19821 j s.c.lt.

In the instant case, the abolition of the posts of village officers is sought to be achieved by piece of legislation passed by the State Legislature. Want of good faith or malafides cannot be attributed to Legislature. We have only to see whether the legislation is colourable one lacking 'in legislative competenee- or whether · it transgresses any other constitutional limitation.

So far as the. argument based on Article 19 (!) (g) of the Constitution is concerned, we are bound by the view expressed by th~ Constitution Ben9h of this Court in Fertilizer Corporation Kamgar Union (Regd), Sindri & Ors. v. Union of India & Ors.([1]) in which Chandrachud, C.J. has observed at pages 60-61 thus :.

"The right to pursue calling or to carry on an occupation is not the same thing as the right to work in particular post under 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 Liiws. But the point to be noted is that the closure of an establishment in which 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 (!) (g) of the Constitu-tion.· Supposing law were passed preventing certain category of workers from accepting employment in ferti-liser 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 (I) (g) confers broad and general right which is avail-ble to all persons to do work of any particular kind and of their choice. It do.es not confer the right whold parti-cular job or to occupy 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

(I) [1981] 2 S.C.R, 52.

k . ,,. I ~i ,.,

whicli the person is working. The workers in the instant case can no more complain of the infringement of their fundamental right under Article 19 (I) (g) than can 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 (I) (g)."

In view of the above ruling, it is not possible to hold that the Act violates Article 19 (I) (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 9onstitution. We have already seen in the Fertili1er Cor-poration Kamgar Union's case (supra) the observation· to the effect : 'Even under Article 31 t 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 person ·from 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 holder of civil post is dependent upon, the pleasure of the Crown is peculiar to English law.

In India Article'3IO . of the Constitution of India provides: '

":i!O (1) Except as expressly provided by this Cons-titution, every person who is member of defence service or of 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 member of civil' .. '

sUUll!ilE COURT Rlll'ORTS

service of State or holds any civil post under State · holds office during the pleasure of the Governor of the State.

( (2) Notwithstanding that person holding civil post under the Union or 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 person, not being 1 member of defence service or of an all-India service or of civil service of the Union or State, is appointed under the Constitution to hold such post may, if the President" or the Governor, as the case may be, deems it necessary fa order to secure the services of ·a person having special qualifications, provide for the payment to him of compensa-tion, 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 Atticle 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 kiQd of termination of employment under Government would attract Article 311 (2) of the Constitution_ and 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 Dhin~ra v. Unfon of India,(') Das, C.J. observed:"The Government cannot terminate his service unless it is entitled to do so (I) by virtue of 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 fulfilment of rule conditions for compulsory retirement or subject to certain safeguards, on the abolition of the post or on being

· found guilty, after proper enquiry on notice to him, of misconduct, negligence, inefficiency or any other disqualifi-cation." ' (emphasis added)

Again at pages 857-858 in the same iu,dgment, the learned Chief Justice observed :

"The foregoing conclusion, however, does· not solve the entire problem, for it bas yet to be ascertained as to 'when an order for the termination of service is inflicted as and by waY, of punishment and when it is not. It has already been said that where person is appointed, substan- · lively to permanent post in Government service, he normally acquires right to hold the post until under the . rules, he attains the age of SU,Perannuation or is compulsorily, retired and in the absence of' contract, express or implied, or service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of miscon-duct, negligence, .inefficiency or other disqualifications .and appropriate proceedings are taken under the service rules I ' read with Art. 3 IL (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 (I) whether the servant had right to the post or the rank or (2) whether he had been visited with evil consequences such as loss of pay and allowances, stigma affect.ing his future career in order to determ.irie whether the removal of 'an officer from post attracted Article 311 (2). The decision in Parshotam Lal Dhingra's case (supra) was reviewed by Bench of seven Judges of this Court in Moti Ram Deka etc. v. General Mavager, N.E.F. Railways, Maligaon, Pandu etc.(') Io that case the question which. arose for consideration was whether Rules,.148 (3) and 149 (3) of the Indian Railway Establish-. ment Code violated either Art.icle 311 (2), or Article 14 of the Cons-titution. Sub-rules (I) and (2) of Rule 148 dealt with temporary railway servants and apprentices respectively. The relevant part of Rule 148 (3) read thus:

(t) 119641 s s.c.R. 61!3.

"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 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 m·ental. 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 disciplinary measure after compliance with the provisions of clause (2) of Article 311 of the Constitu-tion, 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 Government servant on being appointed to post permanently acquired right to hold the post under the. Rules until he attained the age [1]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 permanant Government servant under contract express or imp· · lied or service rule. After referring to one passage at page 841 and. another at page 843 in Parshotam Lal Dhingra' s case, Gajendragad· kar, 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 observation.s together, there can be ·no doubt that with the exception of appointments held under special contract, the Court took the view that wherever civil servant was appointed to permanent post substantively, be bad right to hold that post until he reach-ed the age of superannuation or was compulsorjll". retired,

t. RArnNDRAN v. fAMIL . NADU Wenkataramiah, \ J.) \

or. of the said servant the post was abolished. were I terminated, they In all other cases, if the services would have to . be in conformity with the provisions of Art. 311 (2), because termination in such· cases amounts to removal. The two statement; 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 Government servant from post on its abolition is recognised in the abo've passage as circnm-stance not attracting Article 311(2) of the Constitution. The Court after review of all the decisions. before lt including tbe 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 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 Govern-

ment servant holding permanent post on its abolition was consi-dered 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 Government servant conse-quent 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,(') 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 chemical assistant in the Agricultural Research Institute, Mandya in the Department of Agriculture of the State of Mysore. Under the Mysore University of Agricultural Sciepces Act, 1963 which came into force on April 24, 1964, the University of Agri-cultural 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 (I} or in any of the institutions re-ferred to in sub-section (4) immediately before the appointed

(1) AIR 1967 Bom. 482. ,

(1) , (2) [1~71 J 2 s.c,R. 831. .

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 notification dated September 29, 1965 issued under section ·7(4) and (5) of that Act, the control and management of m,unber of research and educational institutions ·under the Department of Agriculture were transferred to the Univer-sity. Alongwith them, the Institutdn which the respondent was wor-king was also transferred to the lfniversity. 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 •he 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 Consti-tution befqre 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 deci-sion of the High Court holding that Artide 311(2) of the Consti-tution had been contravened as the prospects of the resp·ondent in Government service were affected. In this case the parties proceeded OD 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 different master, in this case it being the University, it was open to . the State Government to transfer its employee to the control of new master without giving an option to him. to state whether he would continue as Government employee or not. The court was not concerned about the consequences of abolition of 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(') one serious infirmity about the impugned provisiorls was that. whoever was holding the post in any of the institutions trans-ferred 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 he

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 tr,ansferring all the employees who were then working in the insti-. tutions to the University. The impugned provisions were not rules dealing with the age of superannuation or compulsory retirement. Nor the ca5e was dealt with on the principle of ab.olition of posts. The decision in this case !ilk.es its colour from the peculiar facts involved in it. One principle that may be deduced from this aecisfon is that ifa post is not special post and its incumbent is member of cadre his rights as member of the cadre should be considered before decidipg whether he has cased to be government employee on the abolition of the post. It is likely that on such scrutiny the1 services of another member of the cadre may have to be terminated. on its ab9lition or some other member of the cadre may have to be reverted to 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 special post or where an entire cadre is abolished ·cadre and there is no lower cadre to which the members ·of the abolished can reasonably be reverted, the application of this principle may not arise at all. In the circum-stances, the petitioners cannot derive' much assistance from this decision.

The question whether Article 311 (2) would be contravened if. Government servant holding civil post substantively lost his employ-meot by reason of the abolition of the post held .by him directly arose for consideration before this Court in M. Ramanatha Pillai v. The state of Kera/a & Anr.(1) Two poipts were examined in that case: (i) whether the Government had right to abolish post in service a.nd (ii) whether abolition of a[1 ]post was dismissal or remo-val withinthe meaning of ~rticle 311 of the Constitution. The Court held that post could be abolished in good faith but the order abolishing the post might lose its effective character if it was establi-shed to have been made arbitrarily, mala fide or as mask of some penal action within the meaning of Article 311 (2). After consi' dering the effect of the decisions in Parashotam Lal Dhingra's case · (supra), Champakial Chiman/a( Shah v. The U~ion of India,('-)

11) [I974J l!S.il.R. 515. (2) [1964] 5 S.C.R. 190.

654 llUPRl!MB COURT REPORTS

t ' [[1]]

Motl Ram Deka' s case (supra), Satish Chandra Anand v. The[[1]]ffnion of India (') and SI.yam Lal v. State of U.P. and Union of India.(") }his Court observed in this case at page 526 thus:

"The abolition of post may have the consequence of ter:nination of service of government servant. Such termi· nation is not dismissal or removal within the meaning of Article 311 of the Constitution. The opportunity of show-i'ng cause against the proposed penalty of dismissal or ,removal does not therefore arise in th.e case of abolition of post. The abolition' of post is not personal' penalty against the government servant. The abolition of post is an executive policy decision. Whether after a~olition of the post, the Government servant. who was holding the post would or could be offered any employment under the State would therefore be matter of policy decision of the Government because the abolitio'n of post does not confer on the person holding the abolished post any right to hold the post.".

The true effect of the decision in Moti Ram Deka' s case (supra) on the question of applicability of Article 311 (2) of the Constitu· tion to case of abolition of post has bee'n clearly explained in this case and we have very little to say anything further on it. Suffice it to say that the Moti Ram Deka's case (supra) is no ·authority for the proposition that Article 311 (2) would be attracted in such case.

The above view was followed by this Court in State of Haryana, v. Des Raj Sa'ngar & Anr.([1]) to which one of us (Murtaza Fazal Ali, J.) was party. Khanna, J. speaking for the Court observed at pages 1037-38 thus : .

"Whether post should be retained or abolished is;j essentially matter for the Government to decide. As lo~. as such decision of the Government is taken in good faith ' the same cannot be set asid~ by the court. It is not open to the court to go behind the wisdom of the decision and substitute its own · opinion for that of the Government on the point as to whether post should or should not be

(I) [1953] S.C.R. 655. (2lj[l955] 1 S.C.R. 26. (3) (1976],2.S.C.R, .10~4.

abolished. The decision to abolish the post should, how-ever, as already mentioned, be taken in good faith and be not used as ·cloak or pretence to terminate the services of person holding that post. fo case it is found on consi- · deration of the facts of case that the abolition of the post was only device to terminate the services of an employee, the aboliiion of the post would suffer from serious infir-mity and would be liable to be set aside. The termination of post in good faith and the consequent termination of the services of the incumbent of that post would not attract Article 311." ·

Before concluding our discussion on this topic, it is necessary to refer to decision of the Jammu and Kashmir High Court in Abdul Kha/ik Renzu & Ors. v, The State of Jammu and Kashmir(') to .. which one of us · (Murtaza Fazal Ali, J. (as he then was) was party in w)lich the validity of the abolition of posts constituting the special police squad of the State of Jammu and Kashmir was ques-tioned. In that case, the High Court while recognising the power of the State Govetnment to abolish the posts and to terminate the services of the incumbents of such posts held that such action could ' . be validly taken only subject to certai'n safegu1;1rds anp in the absence of any such safeguards the abolition Wa5 bad. The High Court did not clearly spell out the nature and extent of .safeguards referred to therein. The High Court relied on the words 'subject to certain safeguards, on the atiolition of posts' in the passage occurring at page 841 in Parshotam Lal Dhingra's case (supra) which is extracted above to reach the conclusion that unless the abolition of posts was accompanied by such safeguards, Article 311 would be infringed. With respect, it should be stated that the High Court did not notice that in another passage at pages 857-858 in the same decision, which is also.extracted above, the abolition of posts referred to tkerein, was unqualified. In this passage there is no reference to any safe-guards at all. Probably the 'safeguards' referred to in the passage at page 841 in Parshotam Lal Dhlngra' s case (supra) meant an aboli-tion of posts which was in good "faith and not pretence of abolition • of post resorted to in order to get rid of its incumbent and the creation of tlte same post with different form or name with new incumbent. The above view of the lligh Court of Jammu and 'Kashmir is however, in conflict with the decision in Ramanatha

Pillai' s case (supra) and hence must be considered as having been overruled by · this ·Court. In modern administrations, it is necessary to recongnise the existence of the power with the Legislature or the Executive to create or abolish posts in the civil service of the State. The volume of administrative work\ the measures of economy and the need for streamlining the administra-tion to make it more efficient may induce the State Government to Il)ake alterations in the staffing patterns of the civU service necessitating either the increase or the decrease in the, number of posts. This 1power 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. The power to abolish post which may result in the holder thereof ceasing to be Government servant has got to be recognised. But we may hasten to add that any action legislative or executive taken · pursuant to tha_t power is always subject to judicial review.

It is no\ doubt true. that Art,icle' 38 and Article 43 of the i Constitution insist that the State, should endeavour to find .sufficient work for the people so that they may put their capacity to work into economic use and earn fairly good living. But these articles do not mean that every body should be, provided with job in the civil service of the State and if person is provided with one he should· not be asked to leave it even for just cause. If it were not so, there would be no justification for small percentage of the population being in Government service and in receipt of regular income and large majority of them . remaining outside with no guaranteed means of . living. It would certainly be an .ideal state of affairs if work could be found 1 for all the able bodied men and women and everybody is guaranteed the right to participate in the production of national wealth and to enjoy the fruits thereof. But we are today far away from .that goal. The question whether person who ceases to be Government servant according to law should be rehabilitated by giving an. alternative employment is, as the law stands today, matter of policy on which the Court has no voice.

On fafr construction of the provisions of ArtiCle 311 (2) of the Constitution . and considetati6n of the judii:ial precedents having bearing on the question, we are of the vie\V that it is not possible to hold that the termination of ~ervi~e llrouiiht about ht '

. ..____

the abolition of post effected in good faith attracts Article 311 (2). An analysis of Article 311 (2) shows that it guarantees to person who is member of civil service of the Union or an all-India service or civil service of State or holds civil post the right to defend himself in any proceeding leading to his dismissal, removal or reduction in rank. It requires that in such case an inquiry should precede any such action, at that inquiry be should be infor-med of the charges against him and given r~asonable opportunity of being heard in respect of- those charges. Where it is proposed after such inquiry to impose upon him any such 'penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed. The second proviso to Article 311 (2) of the Constitution sets out the circumstances when that clause would not apply. These provi-sions show that Article 311 (2) deals with the dismissal, re~oval, or reduction in rank as measure of1penalty on proof of an'act of misconduct on the part of the -official concerned. This fact is emphasised by the introduction of the words 'an inquiry in which he has been informed of the charges against him' in Art. 311(2) when it was substituted in the place of the former clause (2) of Article 311 . by the Constitution (Fifteentb. Amendment) Act, 1963 which came into force on October 5, 1963. In the cir6umstances, it is difficult to hold that either the decision in Motl Ram Deka' s case (supra) or the decision in Papanna Gowda' s case (supra) lays down that the provi-sions of Article 3 (2) should be complied with before the servi-ces of Government servant are terminated as consequence of the abolition of the post held by him for bona fide reasons. In view of the foregoing, it cannot be said that the Act impugned in these petitions by which the village offices in the State of Tamil Nadu were abolished contravenes Article 311(2) of the Constitution.

We have now to consider the submission based on Article 14 of the Constitution. This aspect of the case bas to be examined from two angles- (i) whether the ·step taken by the Legislature to abolish the village offices in question is so arbitrary asto conflict· with Article 14 of the, Constitution and (ii) whether unequals have been treated as equals by the Legislature.

While dealing with the first point it is to be observed that the posts of village officers which were governed by the Madras Act II of 1894, the ~adras Act III qf 1895 ~1!4 the ~o~rd's Standin~ Ord~r~

were feudalistic in character and the appointments to those posts were g_~verned 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. 'fhose factors are alien to modern administrative service and are clearly opposed to {\rticles 14 and 16 of the Constitution. No minimun educational qualifications had. been prescribed. It was enough if the applicants knew reading and writing in the case of some of them. The posts were not governed by the regular service rules applicable generally to all officials in the State service. Rightly therefore, the Administrative Reforms Commission recommended their abolition and reorganisation of the village service. The rele-vant part of the Report of the Administrative Reforms Commission reads thus:"The concept of service was conspicuously absent in this relationship. Village officers were part-time employees and not subject to normal civil service discipline. They do not function from public offices where they were expected to receive people and transact public business. All accounts, survey and registry records were in their private custody. Villagers had to go to the residences of Village officers and await the latter's convenience· for referring to public records or for getting extracts from them. This reduced the accessibilty particularly of "high caste" village officers to the poor farmers of the "backward and untouchable" communities. Their emoluments for the part-time service, were meagre and appeard to be an honorarium rather than living wage. Communications and living conditions in villages being difficult, subordinate inspecting officers were dependent on the private hospitality of village officers during their official visits. These factors led to the village officers developing an attitude of condescension in their dealings with villagers. Even though the hereditary principle was held to be unconstitutional recently, the members of their famlies still get preferential treatment, even if informally, in filling up vacant offices. In recent times, village officers have generally ceased to be leading and affluent ryots and are reduced to earn their livelihood Jar!lely through the misuse. of their position."

The problems involved in the reorganisation of Revenue villages in Tamil Nadu were also discussed in the Report of Mr.S.P. Ambrose, I.A.S. submitted to the State Government in January, 1980. In the ~ourse of the Report, he observed:

"4.2 Re-organisation of Revenue Villages·

4.2.1. In view of the considerable increases in the total beriz of villages, particularly those with extensive irrigated areas, new rules ,for the regulation and distri-bution of water in the project ·areas and in old ayacut areas, and the reduced work and responsibilities of the talayaris on account of the increase in the strength of the regular Police establishments the norms, for determining the strength of the villagee establishment, as laid down in B.P. Ms. No. 324, dated the 9th December 1910, read with B.P. ,Ms. No. 231, dated the 23rd February 1921, no longer held good. ' 4.2.2. The size of the survey villages vary widely; 4.77 hectares is 'the extent of the smallest village and 20,947 hectares is the extent of the biggest village. In terms of population, the sm~llest has population of 33, while the largest has population of 12, 777. Even though survey villages have been grouped to form convenient revenue groups for purposes of village administration, the size of revenue groups also vary widely. With the increases in the area cultivated, area irrigated (both from Government and private sources) and the number of pattas the work load in most villages has increased considerably now. The question for consideration is whether comprehensive exer-cise to reorganise the revenue villages into convenient and viable village administrative units with reference to the existing work load should be attempted, and thereafter to revise the strength of the village establishment by laying down fresh norms for determing its strength. This will be major administrative exercise. If convenient village administrative units with, more or less, equal work load are to be constituted, several factors like area cultivated (gross and net), area irrigated, crop pattern, population, number of pattadars and beri~ Q§Ve '·· • to be taken into •• ,lo•·, acco11nt I

0policy issue is whether

0Before this is attempted, the majorpolicy issue is whether to continue the present part-time system of village offi-cers or· to have regular, transferable Government servants as Village Officers in charge of bigger administrative nnits as recommended by the Administrative Reforms Commission.''

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 reorgapisation of village service, it cannot be said that the decision to abolish the village offices which were feudalistic in character and' anachronisms in the · ·-.I..~ modern age was arbitrary or unreasonable. Another aspect of the same question is whether the impugned legislation is colourable one passed with the object of treating the incumbents of village offices in an unjust way .. similar contention was rejection by this Court in B.R. Shankaranarayaiia and Ors. v. The State of Mysore and Ors.([1]) in which the validity of the Mysore Village Offices Aboli-tion Act (14 of 1961) which tried to achieve more or less similar object arose for consideration, with the following observation.s at pages 1575-1576:

"(13) As pointed out by this Court in Gajapati Narayan Deo's case, AIR 1953 S.C. 375, the whole doctrine of colourable legislation .resolves itself into the question of competency of particular legislature to enact particular Jaw. If the legislature is competent to pass the particular law, the motives which impel it to pass the law are really irrelevant. It is open to the Court to scrutinize the law to ascertain whether the legislature by device, purports to make law which, though in form·appears to be within its sphere, in effect and substance, reaches beyond it.

(14) Beyond attempting the argument that the impugned Act is piece of colourable legislation, learned Counsel for the appellant has not succeeded in substan-tiating bis contention that the Act and the rules made there-under are merely device for removing the present incum-bents from their office. The provisions of the Act and the

rules made thereunder plainly provide for the abolition of hereditary village offices and make those offices stipendiary posts. The Act makes no secret of its intention to abolish the hereditary posts.

(15) It is argued that even after abolition, the same posts are sou.ght to ,be continued. It is no doubt true that the names of the offices · have not been changed but there is basic structura) difference between the posts that have been abolished. The posts created by the new Act are stipendiary posts. They carry salaries according to the grades created by the rules. The incumbents are transfer-able and their service is pensionable. Different qualifications are prescribed for the new posts. From consideration of the incidents attaching to the new posts it is clear that the old posts have been abolished and new posts have been created and that the whole complexion of the posts has been changed. ·

(I~) The result is that in our op1mon the impugned Act cannot be held to be piece of colourable legislation and as such invalid." -. I

' learned discussion on all the points raised in the above case is foqnd in the judgment of the High Court of Mysore in B.H. Honna/ige Gowda v. State of Mysore and Anr.([1]) Hence the above contention has to be rejected.

The next contention of the petitioners which is of some subs--..__ tance and which is based again on Artie.le 14 needs to be examined -·here. It is seen from section 2 (e) of the Act that the expression 'part-time village officer' is defined as follows :·

"2. (e) "part-time village officer" means Village Headman .(inclu~ing A~ditional Village Headman, Village Karnam (ll)Cludmg Chief Karnam and Additional Village Karnam) or Triune Officer appointed under -

(i) the Madras Proprietary Estates') Village Service Act, 1894 (Madras Act II of 1894) or the Madras. Heredi-tazy Village Offices Act, 1895 (Madras Act III of 1895) ;

(ii) the Boa.rd's Standing Orders ;

(iii) the Tamil Nadu Village Officers Service Rules, 1970 or any other rules made under the proviso to Article 309 of the Constitution ; or

(iv) any other law,

but does not include Grama Kuvalar, Grama Paniyalar

and. Pasana Kavalar;"

By section 3 of the Act, the posts held by the part-time village . officers, as defined above, are abolished. As consequence of the above provision not merely posts of officers appointed under the Madras Act No. II of 1894, the Madras Act No. III of 1895 and the Board's Standing Orders prior to December 16, 1970 but also the posts held by officers appointed after that date under the Rules made under the proviso to Article ·309 of the Constitution i.e. The Tamil Nadu Village Officers Service Rules, 1970 or any other rule made by the Governor have been abolished. It is argued that the abolition of posts ofofficials appointed after December 16, 1970 under the Rules made under the proviso to Article 309 of the Constitution is violative of Article 14 of the Constitution. We ha.ve given our anxious consideration to this submission. Any classification should satisfy two tests-(i) that there exists an inielligible differentia between those who arc grouped together and those who are not included in the group and (ii) that there exists reasonable nexus between the differentia and the object for which classification is · made. As stated earlier the object of the impugned legislation is to abolish posts which were part-time in nature and which had come into existence under laws which were feudalistic in character and to replaceithem by posts held by new incumbents who are recruited under it. The question for consideration is whether the grouping together of the part-time posts mentioned in section 2 (e) of the Act is unconstitutional. There is no dispute that upto Decem -ber 16, 1970 all appointments to village offices were being made under the two Madras Acts referred to above and the Board's

-- _-.--...._ ~-

Standing Orders on the basis of factors pealt w!th above. But after December 16, 1970, recruitment was being made in accordance with the Tamil Nadu Village Officers Service Rules, 1970 By the said Rules new service of part-time village officers was constituted. Rule 5 thereof prescribed the minimum educational qualification and the tests which an applicant had to be eligible for being appointed. T.he Rules fixed the age of superannua-tion at 55 years. But even under these Rules, the persons who were appointed were part-time village ?fficers who were paid fixed amount every month by way of remuneration. The nature of duties performed by them and the responsibilities they had to discharge >--were also the same. The posts held by them were non pensionable posts. Under the Act and the Rules framed thereunder, the village administrative officers to be appointed are to be recruited directly. * No person shall be eligible for appointment to the post of village administrative officer unless he possesses the mininium general educational qualification referred to in Rule 12 (a) (i) of Part II of the Tamil Nadu State Subordinate Services Rules and prescribed Schedule I to the said Part II. Every person appointed to the post has within 'period of one year from the date on .which he' joins duty to undergo the training and pass the tests prescribed by Rule 9 of the Rules made under the Aci. Every person appointed as -a village administrative officer is liable to be transferred from one place to another. The age of superannuation ·is fixed at 58 years. The said posts are no longer part-time posts and the holders thereof are full time Government officials entitled to draw salary every month in the scale of Rs. 350-10-420-15-600 and other allowances and these posts are pensionable posts. It is also to be seen from the recom-mendations of the Administrative Reforms Commission and other material placed before us that the revenue village will be reorganised so as to form viable administrative units which would require the , -------- services of whole time village administrative officer. The area under village administrative officer is much larger than many of the existing revenue villages. When such reorganisation of the village administration iS contemplated, it would not be poss,ible to allow charges of diverse sizes to continue to remain in any pa;t of the State of Tamil Nadu. In these circumstanc~s. even though the village officers appointed after December 16, 1970 are in way different from the village officials appointed prior to that date, they too cannot be equated with the new village administrative officers who will be appointed under the Act and the Rules made thereunder.

I ·---._ ·---._

11982) 3 s.c.ii..

SUPililME CoUilT ilEl>oil.t~

It cannot,-therefore, be held that Article 14 of the Constitution has been violated in abolishing the posts held by those appointed after December 16, 1970.

The petitioners in Writ Petitions Nos. 6191, 6355 and 6356 of 1980 who are holders of village offices in Tiruttani Taluk and Pallipatu area have questioned the impugned Act on the ground that the State Legislature could not pass the law without the previous approval of Central Government as required by the proviso to sub:section ( 4) of section 43 of the Andhra Pradesh and · Madras (Alteration of Boundaries) Act, 1959 (Cenral Act 56 of 1959). The area in which these petitioners were working as vi11age officials forms part of the transferred territories transferred from Andhra Pradesh to Tamil Nand under the aforesaid Act. Their contention is that since they were working as village officials in the said area prior to the commencement of the above said _Act the con-ditions of their service could not be altered to their prejudice without obtaining the previous approval of the Cen1ral Government. Section 43 of the Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959 reads :"43. Provisions relating to services -

(I) Every person, who immediately before the appointed day, is serving in connection with the affairs of Andhra Pradesh or Madras shall, as from that day, continue so to serve, unless he is required by general or special order of the Central Government to serve provisionalr in connection with the affairs of the other State. -/

(2) As soon as may be after the appointed day, the Central Government shall by general or special order, determine the State to which every person provi-sionally allotted to Andhra Pradesh or Madras shall be finally allotted for service and the date from which such allotment shall take effect or be deemed to have taken effect.

(3) Every person who is finally allotted under the provi-sions of sub·section (2) to Andhra Pradesh or Madras shall, if he is not already serving therein, be made

It, llAl~NbltAN v. tAMIL NADU (ltenkataramiah, !.)

available for serving in that State from such date as may be agreed upon between the two State Govern-ments or in default of such agreement ; as may be determined by the 'Central Government.

(4) Nothing in this section shall be deemed to affect, after the appointed day, the operation of the provisions of Chapter.I of Part XIV_ of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of Andhra Pradesh or Madras.

Provided that the conditions of service applicable immediately before the appointed day to the case of any person provisionally or finally allotted to Andhra Pradesh or Madras under this section shall not be varied to his disadvantage except with the previous approval of the Central Government.

(5) The Central Government may at any time before or after the appointed day give such directions to either State Government as may appear to it to be necessary for the purpose of giving effect to the foregoing provi-sions of this section and the State Government shall comply with such directions."

The answer of the State Government to the above contention is that the petitioners in these peiitiops are not allotted under sec-tion 43 (2) of the above said Act to the State of Tamil Nadu and hence the proviso to sub-section ( 4) of section 43 is not applicable. The petitioners have not shown any such order of allotment under section 43 (2). Hence the proviso to sub-section (4) of section 43 is not attracted. Under section 43 (4) of the above said Act, the State Government is entitled to deal with all the officials in the areas transferred to them in accordance with Chapter I of Part XIV of 'the Constitution. The above contention is, therefore, rejected.

In the course of the hearing on suggestfon made by the Court, the learned Attorney General filed memorandum which reads as follows :

SlJPllEMR CbtJllt ltl!Pbb.tS

"All the erstwhile Village Olficers who possess the minimum general educational qualification as required under the Abolition Act and irrespective of their age (but subject to the rule of retirement framed under _the Abolition Act and the Rules fi'amed thereunder) will be screened by Committee to be appointed by the Government. They need not make any application and they need not also appear for any test conducted by the Tamil Nadu Public Service Commission for the post of Village Adminis-trative Officer. Guidelines to the Committee will be a~ follows:-

(I) Punishment

(2) Physical condition.

All the persons selected by the Committee will be appointed by the competent authorities and relaxation in respect of age will be given. They will be new appointees under the Abolition Act and will be governed by the pro-visions of the Act and the rules made thereunder. Com-pensation will not be available to those who are so appointed.

The remaining vaca"cies will be filled up from among the candidates already selected by the Tamil Nadu Public Service Commission.''

After the above petitions were filed under the interim order passed in these cases all the officials involved in these cases are being paid the honQrarium by the State Government. Those who fail in these petitions would have become liable to repay the amount which they have thus drawn in excess of the compensation, if any, they may be entitled to. It is submitted by the learned counsel for the State of Tamil Nadu that the State Government will not take steps to recover such excess amount. The above statement is recorded.

The attitude displayed by the State Government in filing the memorandum referred to above and in making statement to the effect that the amount paid pursuant to the interim orders In in excess of the compensation payable the village officials concerned · will not be reci>vered is highly commendable one and we record

our deep appreciation for the laudable stand taken by the Govern-ment.

It was, however, strenuously urged by Shri ·R. K. Garg that those who have to vacate the posts would be without any work and some of them have large ·families and that compensation, if any, 1 [payable to them ][is ][very ][inadequate. He nrged that it ][was ][the duty ]of the State Government to make adequate provision pursuant to Article 38 and Article 43 of the Constitution. These Articles are in Part IV of the Constitution. They are not enforceable by the courts but they are still fundamental in the governance of the country.

• The natnre of the relationship that exists or ought to exist between the Government and the people in India is different from the relationship between the ruler and his subjects in the West. study of the history of the fight for liberty \bat has been going on in the West shows that it has been continuous agitation of the subjects for more and more freedom from king or the ruler who had once acquired complete control over the destinies of his subjects. The Indian tradition or history is entirely different. The attitude of an Indian ruler is depicted in the statement or Sri1 Rama in the Ramayana thus :

(Ramayana III-W-3)

(Kshatriyas (the kings) bear the bow (wield the power) in order to see that there is no cry of distress (from ar.y quarter).

The duty of the administrator, therefore, is that he should promptly take all necessary steps to alleviate the sufferings of the peopl~ even without being asked to do so. While attending to his duties an administrator should always remember the great saying of the Tamil saint Tiruvalluvar :

stri>k~Mil COURT kili>Okts

Do.nought that soul repe.nting must deplore, ' If thou hast sinned, 'its well if thou dost sin ·no more.

(Let minister never do acts of which he would have to grieve saying, "What is this I have done", (but) should he do (them), it were good that he grieved not.)

(No. 655 in Tirukkural : Translation· by Rev. Dr. G.U. Pope and others (Reprint 1970) P• 175).

An administrator's actions should be such as he is not driven to repent for the mistakes he may have committed. But if he has committed any mistakes in the past he shout!! try to avoid repe-tition of such mistakes. It is significant that in Tamil language the equivalent of the word 'people' is 'Makkal' which is also sometimes used as the equivalent of 'children'. It is for the State Government to consider what can be done to those who fail in' the petitions. This observation is made particularly in regard to those who were recruited after December 16, 1970 under the Rules made under the proviso to Article 309 of the Constitution in view of the fact tha.t their recruitment was not made on the hereditary principle. Those who have passed S.S.L.C. examination amongst them come within the si:ope of the statement made by the learned Attorney General. But those who have merely completed S.S.L.C. examination but not passed it fall outside the scope of that statement even though they have gained experience while they were in office. We hope and trust that the State Government will look into this matter purely from humanitarian point of view. This is only ·suggestion and not direction.

In the result the petitions are dismissed subject to the · following:

(i) The State· Government will give 'effect to the memo-randum filed on its behalf which is incorporated in this judgment in the case of those who possess ·.the minimu111 general qualifications prescribed under the Act and the Rules made thereunder and who were holding the posts of part-time village officers immediately before the Act came into force. The State Government shall re-employ· ru such persons who have not crossed the age of superannuation and who are selected as per the

K. RAJENDRAN v. TAMIL NADU (Venkataramiah, J.)

memorandum in the new cadre' within four months from today. Until they are so selected, they will not be paid any remuneration. Even if they are re-employ-ed, the amount paid to them pursuant to the interim orders will not be recovered from them.

(ii) The compensation, . if any, payable . I by the State Government under sectiop S of the Act to those who cease to be village officers shall be adjusted against the amount paid pursuant to the interim orders passed in these cases. The State Government will not recover from thein any amount paid to them pursuant to the interim orders passed. in these cases in ·excess' of the compensation, if any, payable to them.

(iii) ·The interim orders stand vacated with effect from April IS, 1982.

(iv) No costs. ·

Petitions dismissed