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The University Of Mysore And Anr vs C. D. Govinda Rao And Anr on 26 August, 1963
Article 313 in The Constitution Of India 1949

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Madras High Court
The Government Of Tamil Nadu ... vs P. Manoranjan And Anr. on 3 May, 1985
Equivalent citations: (1986) 1 MLJ 145
Author: V Ratnam



ORDER
 

V. Ratnam, J.

1. In this writ appeal, the Government of Tamil Nadu has questioned the correctness of the order of Mohan, J. in W.P. No. 10308 of 1982 holding that there was no legal sanction whatever for the second respondent to hold the additional post of Director of Legal Studies and issuing of a Writ of quo warranto. As far back as 1953, by G.Q. Ms. No. 30, Edcuation, dated 5.1.1953, the Government of Tamil Nadu sanctioned the creation of a temporary post of Honorary Director of Legal Studies with the status of the head of a department with powers to correspond directly with the Government. He was in charge of matters relating to legal studies in the State and also performed the functions of the Principal of the Law College and during the tenure of the post of Honorary Director, the post of Principal of the Law College, Madras was kept in abeyance. Sri C. Kunhiraman, a retired Judge of this Court, was made the Director of Legal Studies till 30th June, 1955 and he was assisted by a Professor in the discharge of his duties with reference to the administration of the Law College, Madras. Subsequently, by G.O. Ms. No. 3352, Public (Special) Department, dated 4.11.1955, the Government of Madras sanctioned the creation of a temporary post of Director of Legal Studies in the scale of pay of Grade II District and Sessions Judge in the Madras State Higher Judicial Service for a period of three years with the status of the Head of a Department and with power to correspond directly with the Government and Sri M. Anantanarayanan, a former Chief Justice of this Court, was appointed the Director of Legal Studies. Later, by G.O. Ms. No. 2206, Education, dated 16.11.1959, the temporary post of Honorary Director was continued for a further period of two years, though the post of the Principal, Law College, Madras, under the Madras Educational Service, continued to be kept in abeyance. Sri A.S. Panchapakesa Ayyar, a retired Judge of this Court, was appointed as Honorary Director of Legal Studies. By G.O. Rt. No. 1760, Public (Special) Department, dated 30.6.1962, sanction was accorded for the creation of a temporary post of Director of Legal Studies, Madras in the State Higher Judicial Service (District Judge Grade II) for a period of one year with effect from 1.7.1962 or till the need for it ceased, whichever was earlier and Mr. S. Rangarajan, who was then the Principal Judge, City Civil Court, Madras, was posted as Director of Legal Studies. By G.O. Ms. No. 1195, Education Department, dated 12.7.1967, sanction was accorded for the revival of the post of Principal, Law College, Madras, which had earlier been kept in abeyance with effect from the date of the filling up of the post and post of Director of Legal Studies was kept in abeyance. By yet another G.O. Ms. No. 1912, Education, dated 16.12.1968, consequent upon the redesignation of the post of Principal, Law College, as the Director of Legal Studies, the holder of the post was permitted to continue to draw the same pay admissible to the Principal and the post was also directed to continue to remain in the Madras Educational Service. On 21.10.1978, by G.O. Ms. No. 1898, Education, the Government of Tamil Nadu made special rules for the inclusion in Tamil Nadu Legal Educational Service under Section 33 under Part HI - A of Volume II of the Madras Services Manual, 1969. That G.O. provided for the qualifications and method of recruitment for the post of the Director of Legal Studies. On 16.6.1979, by G.O. Ms. No. 965, Education Department, the Second respondent, who was then the Principal of the Law College, Madurai, was transferred and posted as Principal, Law College, Madras, with effect from 31.5.1978 and was directed to continue to hold full additional charge of the post of Director of Legal Studies, Madras, until further orders. By yet another G.O. Ms. No. 655 dated 14.6.1981, the second respondent was directed to hold full additional charge of the duties of the post of Director of Legal Studies and finally G.O. Ms. No. 67, Education, Science and Technology, dated 7.1.1983, was passed, the material and relevant portions of which are as under:

  

DEPARTMENT OF EDUCATION, SCIENCE AND TECHNOLOGY
 G.O. Ms. No. 67                           dated 7.1.1983
 

G.O. Ms. No. 655, Education, dt. 16.4.81
 

ORDER
 

In the G.O. read above, Thiru S. Master Sankaran, Principal, Law College, Madras was ordered to hold full additional charge of the post of Director of Legal Studies from the date of his taking charge.
 

2. The question of posting, a regular Director of Legal Studies is under the consideration of the Government. The Government consider that Thiru S. Master Sankaran may be permitted to continue to hold additional charge of the post of Director of Legal Studies till a regular Director is posted.
 

3. The Government accordingly direct that the post of Director of Legal Studies be revived with effect from 16.9.81. Thiru S. Master Sankaran, Principal, Law College, Madras will hold full additional charge of the post of Director of Legal Studies from 16.9.81 after the fifth month when the post fell vacant until further orders
 

4. This order issues with the concurrence of the Personnel and Administrative Reforms Department - Vide its U.O.No. 36A/83-1 (FR II) dt. 5.1.83 and of the Finance Department - vide its U.O.No. 1467A/Edn/83-l dated 7.1.83.
 

(BY ORDER OF THE GOVERNOR)
 

2. The principal ground upon which the authority of the second respondent to hold the post of Director of Legal Studies was challenged was that he had no such authority to continue to be in additional charge of that post in which he was placed on 17.4.1981 by reason of the operation of Rule 49 of the Fundamental Rules according to which, after the lapse of a period of five months, the post of Director of Legal Studies automatically came to be held in abeyance and therefore, on or after 17.9.1981, there was no legal sanction which enabled the second respondent to continue to remain in additional charge. G.O. Ms. No. 67, Education, Science and Technology Department, dated 7.1.1983 was also challenged on the ground that it was subject to Rule 49 of the Fundamental Rules, and that even reckoning the period of five months as per Rule 49 of the Fundamental Rules, the post lapsed by 16.2.1982 and even if reckoned from 7.1.1983, on which date the Government order came to be passed, the post must be held to be in abeyance from 6.6.1983. An objection was also raised with reference to the retrospective revival of the post on the ground that it runs counter to the spirit of Rule 49, of the Fundamental Rules. Mohan, J. on a detailed consideration of the relevant G.O. Ms. and the fundamental rules, found that the direction . to the second respondent to hold full additional charge as Director of Legal Studies is traceable only to Rule 49 of the Fundamental Rules, that the retrospective revival of the permanent post of Director of Legal Studies is bad as being opposed to Rule 49 of the Fundamental Rules, that even if there can be a retrospective revival, it would be only subject to Rule 49(1) of the Fundamental Rules and reckoned from the date of revival viz., 17.9.1981, it lapsed on 16.2.1982. That even if reckoned from the date of G.O. Ms. No. 67, Education, Science and Technology Department, dated 7.1.1983, the revival lapsed on 7.6.1983 and therefore as on the date when the writ petition was filed, there was no legal sanction whatever for the second respondent to hold the additional post. Adverting to the locus standi of the first respondent to question the holding of the post by the second respondent, it was held, relying upon the decision in University of Mysore v. Govinda Rao that the first respondent was competent to bring to the notice of the Court that the second respondent is an usurper in office without legal authority. On these conclusions, the learned Judge issued a writ of quo warranto as prayed for by the first respondent.

3. In support of this appeal, the learned Advocate General raised three arguments. It was first submitted that under Rule 5-A of the Fundamental Rules, it is open to the Government to relax the provisions of the Fundamental Rules in such a manner as may appear to them to be just and equitable and therefore, no exception can be taken to the order of the Government permitting the second respondent herein to hold additional charge even beyond the time limit prescribed under Rule 49 of the Fundamental Rules. We may point out that the stand taken by the appellant in its counter affidavit does not support this argument. It is seen that according to the appellant, Rule 49 of the Fundamental Rules is intended to restrict the payment of additional charge allowance only. If that be the case, then, the appellant cannot be heard to contend that exemption under Rule 5-A of the Fundamental Rules had been given to enable the second respondent to continue in the post in which he was placed to hold additional charge. Besides, even if Rule 5-A of the Fundamental Rules can be pressed into service by the appellant, there must be material to show that the exemption process was invoked and after consideration of the matters relevant to the grant of an exemption, it had been granted. We are unable to agree that in this case, an exemption from the operation of Rule 49 of the Fundamental Rules had been granted in favour of the second respondent exercising the powers of exemption or relaxation under Rule 5-A of the Fundamental Rules. As a matter of fact, it is only the second respondent who in paragraph 4 of his additional counter affidavit stated that the Government is competent to extend the holding of additional charge beyond the period of five months stipulated in Rule 49 of the Fundamental Rules. A reading of the G.Os. referred to above earlier does not in any manner indicate that the Government purported to relax the applicability of Rule 49 of the Fundamental Rules with reference to the second respondent. We therefore reject the first contention urged by the learned Advocate General.

4. It was next contended that Rule 49 of the Fundamental Rules relates only to the payment of salary and allowance in respect of a person holding additional charge and cannot be invoked for the purpose of limiting the period of additional charge to five months only. In order to appreciate this contention, it is necessary to refer to Rule 49 of the Fundamental Rules. The relevant portion of Rule 49 of the Fundamental Rules runs as follows:

(1)(i) When a Government servant, either permanent or officiating including a re-employed pensioner or a permanent employee of a local body, holding a temporary post or officiating in a post under Government is appointed to hold full additional charge of one or more posts, additional pay shall be allowed only if the period of additional charge is more than thirty-nine days. In computing the period of additional charge, holidays and casual leave should also be included.

(ii) No additional pay shall be granted for holding additional charge of current duties of one or more posts.

(iii) Additional pay for holding full additional charge shall be granted at a rate not exceeding one fifth of the pay of the regular post or half the minimum pay of the additional post, whichever is less, for the first three months and at one-tenth of the pay of the regular post or one-fourth of the minimum pay of the additional post, whichever is less, for the remaining two months.

(iv) Additional pay shall not be paid in respect of the period in excess of five months. After completion of the fifth month of the additional charge, i.e. at the commencement of the sixth month, the sanction for the temporary post shall automatically lapse and if it is a permanent post, it shall automatically be kept in abeyance. Proposal for the revival of such posts should be submitted to Government with detailed justification therefor as for the creation of a new post.

(v)....

The rules are fundamental in the governance of administration, having fullest scope and operation by virtue of Article 313 of the Constitution of India. Rule 49 of the Fundamental Rules occurs in Chapter VI titled "Combination of appointments". On 16.4.1981 originally, in G.O. Ms. No. 655, the second respondent was directed to hold full additional charge of the duties of the post of Director of Legal Studies and this direction is only pursuant to the power under Rule 49 of the Fundamental Rules. We are unable to read the rule extracted above as pertaining only to payment of salary and allowance only. A consideration of the rule, as a whole, indicates that it enables the Government not only to appoint a person to hold additional charge, but also to decide the salary payable to him as well as the duration of the holding of such additional charge. The rule cannot be taken as merely relating to the payment of the salary or allowance only. The Fundamental Rules, as pointed out earlier, are so fundamental in nature for the governance of the affairs of the Government including a power of appointment to hold full additional charge and it cannot be stated merely to be related to the payment of salary and allowances. The object of a rule like Rule 49 of the Fundamental Rules is not very far to seek. For, if a permanent post could be held by way of additional charge for more than a period of five months, there may be no necessity for such a post, so that there would be a saving of that part of the expenditure at least. The applicability of the rule cannot, therefore, be confined to the payment of the salary and allowances only but would also take in the power to direct a person to hold additional charge at one time as well as decide the salary and allowances payable to him for the duration of his holding of such additional charge. We are therefore unable to accept this contention as well.

5. Lastly, the learned Advocate General submitted that there had been a revival of the post and the reappointment of the second respondent to that post and therefore, no exception could be taken to G.O.Ms.67 dated 7.1.1983. The aforesaid G.O. purports to revive the holding of the additional charge with retrospective effect from 17.9.1981. Under Rule 49 of the Fundamental Rules, which, as pointed out earlier, not only confers the power to appoint a person to hold full additional charge, but also decide the question of salary and allowance payable as well as the duration of the period of the holding of the additional charge, does not permit any retrospective revival at all. Under Rule 49(1)(iv) of the Fundamental Rules, after the completion of the five months of the additional charge, the sanction for the temporary post shall automatically lapse and if it is a permanent post, it will automatically be kept in abeyance. Thereafter, the proposal for revival of the said posts should be submitted to the Government with a detailed justification for such revivval as for the creation of a new post. This clearly indicates that there cannot be any retrospective revival at alt under the rules as they now stand. Even if the rule can be considered as permitting a retrospective revival, it is seen that there is absolutely no material to show that a case for such revival was made out at all. Indeed, it is seen from paragraph 41 of the judgment appealed against that from the files produced, it does not appear that the Government was satisfied about the need for revival. Without the existence of such need and justification for revival, there cannot be a revival in the manner done under the rules as they stand now, for, to permit such a revival would be to destroy Rule 49(1)(iv) of the Fundamental Rules. There are no reasons also for the revival assuming that there could be a revival and a retrospective revival also as that. Therefore, even on the basis that the Government purported to revive the post, that has to be held to be bad as there is no disclosed justification for that as in the case of creation of a new post and there is no material to show that the Government was satisfied about the need for the revival. Under those circumstances, there cannot be any revival and reappointment in accordance with the rules and we, therefore, reject this contention also.

6. We have therefore to hold that G.O. Ms. No. 67, Education, Science and Technology, dated 7.1.1983 retrospectively reviving the permanent post of the Director of Legal Studies runs counter to Rule 49 of the Fundamental Rules and that even if it can be so revived retrospectively, by reason of Rule 49(1)(iv) of the Fundamental Rules, it lapsed on 16.2.1982, five months after the date of revival 17.9.1981. Giving effect to Rule 49 of the Fundamental rules with reference to G.O. Ms. No. 67, Education Science and Technology, dated 7.1.1983, the permission granted to enable the 2nd respondent to continue to hold the additional charge of the post of the Director of Legal Studies lapsed on 7.6.1983 and therefore, the learned Judge was quite right in concluding that there was no legal sanction for the second respondent to continue to hold the additional charge of the post of the Director of Legal Studies, as, by the operation of Rule 49 of the Fundamental Rules, that post, on the expiry of a period of five months, was kept in abeyance and could not thereafter be held by way of additional charge. The decision in University of Mysore v. Govinda Rao relied on by the learned Counsel for the first respondent established that the first respondent can challenge the authority of the second respondent to hold the office of the Director of Legal Studies and to maintain the writ of quo warranto in the circumstances of this case. We, therefore, have no hesitation in upholding the decision of the learned Judge and in dismissing the appeal with costs of the first respondent.