K.Karuppannan
Vs. The Secretary to Government of Tamil Nadu & Ors [1999] INSC 176 (4 May 1999)
Syed
Shah Mohammed Quadri, S.N.Phukhan
QUADRI,
J In this appeal the order of Tamil Nadu Administrative Tribunal, Madras in O.A.No.2605 dated 11-1-1995, is under challenge. The third respondent in the
said O.A. is the appellant. To appreciate the question arising in this appeal,
we shall briefly state the facts of the case. Under the Tamil Nadu Agricultural
Produce Markets Act, 1959 [Act No.23 of 1959] (for short `the Act) various
district Market Committees came into being. The appellant was appointed as
Junior Assistant in the Market Committee, Madurai on July 22,
1976. By an order
issued on November 17, 1981 the Government of Tamil Nadu declared that all the
persons working in various district Market Committees were Government servants
or would be treated as Government servants with effect from that date. In
1982-83, there were 17 vacancies of Supervisors in Thanjavur Market Committee.
After
calling for options from the eligible staff of district Market Committees, the
Director of Agricultural Marketing, Trichirapalli transferred the appellant
along with others to Thanjavur Market Committee for their appointment as
Supervisors. The Market Committee passed Resolution No.12/82-83 on 17.3.83
appointing them as Supervisors and on March 18, 1983 in Proceeding No.1 E1/893/83, the
Secretary of Thanjavur Market Committee issued orders of their appointment. The
appellant is shown at Sl.No.14 in the said proceedings. In Proceeding
No.E1/13639/84 dated 26.7.84 issued by the Secretary of the said market
Committee, the services of the appellant as well as the other Supervisors were regularised
with effect from 23.12.81 pursuant to the Resolution No.139/84-84 of the Market
Committee dated 21.7.84. Thereafter, the Thanjavur Market Committee by its
Resolution No.229/84-85 dated 22.9.84 declared the probation of the appellant
with effect from 24.3.83 (forenoon). It appears that the Government of Tamil Nadu
issued orders in GOMs No.194 Agriculture dated March 15, 1991 treating each District Market Committee as a separate unit.
As an upshot of that order of the Government, the Director of Agricultural
Marketing issued proceeding on June 28,1991
purporting to repatriate the appellant to his parent Market Committee, Madurai. The appellant made a
representation to the Director of Agricultural Marketing against his
repatriation and by order dated 9.7.91 in Proceeding No.A4.16887/91, the
Director cancelled his earlier proceedings of 28.6.91. Challenging the
correctness of the proceeding of July 9, 1991, respondents 4 to 8 herein filed O.A.No.2605/91 before the
Tamil Nadu Administrative Tribunal, Madras. The O.A. was allowed by the Tribunal on 19.6.92. The appellant
assailed the validity of the order of the Tribunal before this Court in Civil
Appeal No.4221/93. By judgment and order of this Court dated September 7, 1994, the order of the Tribunal dated
19.6.92 was set aside and the case was remanded to the Tribunal for fresh
disposal in accordance with law. After remand, on January 11,1995, the Tribunal allowed the application of the said
respondents holding that on appointment as Supervisor of Thanjavur Market
Committee the appellant did not acquire any right and his subsequent regularisation
and completion of probation did not make him the regular incumbent of Thanjavur
Market Committee. That order is the subject matter of the present appeal. The
contentions of Mr.T. Raja, learned counsel for the appellant, are that the
appointment of the appellant by transfer as Supervisor under Rule 203 of Tamil Nadu
Agricultural Produce Market Rules, 1962 (for short `the 1962 Rules') and his
subsequent regularisation would make him an employee of the Thanjavur Market
Committee and for that reason declaration of completion of probation was also
made by the Committee. The appellant was appointed as Supervisor by the
competent authority in 1983 and that was saved by amendment of Rules in GOMs
No.206 Agriculture Department dated 18.3.91. Therefore, the repatriation of the
appellant to the parent Market Committee, Madurai was wholly illegal which was rightly withdrawn by the Director as such
the impugned order of the Tribunal is liable to be set aside.
Learned
counsel appearing for the official respondents, respondents 1- 3, submitted
that the transfer of the appellant from Market Committee, Madurai to Thanjavur
Market Committee by the Director did not make him an employee of Thanjavur
Market Committee; he continued to have his lien in the Market Committee, Madurai;
his subsequent regularisation on the post of Supervisor and declaration of
probation by Thanjavur Market Committee would not confer any right, whatsoever,
on him. The Director committed error in withdrawing the order of repatriation
and the Tribunal corrected the illegality by allowing the O.A. of respondents 4
to 8 herein. Though service of notice of this appeal on respondents 4 to 8,
petitioners in the O.A., is reported to be complete, yet they did not enter
appearance.
The
short question that arises for consideration is whether in the circumstances of
this case on his transfer and appointment as Supervisor of the Thanjavur Market
Committee, the appellant became the employee of that Committee. Here it may be
useful to refer to the relevant Rules. Under the 1962 Rules each Market
Committee was a separate unit. While so, by order issued in GOMs No.2535
Agriculture dated 17.11.81, the Government of Tamil Nadu declared the services
of the employees working in the Market Committee as Government servants w.e.f
17.11.81. Rule 202 of the said Rules empowered the Director of Agricultural
Marketing to transfer employees of one market Committee to any other market
Committee. In 1982-83, there were 17 vacant posts of Supervisors in Thanjavur
Market Committee. The Director having called for options of the eligible
candidates from various district Market Committees transferred 17 persons
including the appellant from their respective market Committees to Thanjavur
Market Committee for being appointed as Supervisors. Accordingly under Rule 203
of the said Rules, the Thanjavur Market Committee appointed the appellant and
others as Supervisors and issued orders on 18.3.83. On 26.7.84 the services of
the appellant were regularised by Thanjavur Market Committee and on 1.10.84 he was
declared to have completed his probation satisfactorily.
Under
the said Rules the Market Committee was competent to appoint Supervisors of
that Committee. Therefore, the appointment of the appellant as Supervisor was
in accordance with Rules then in force. It is no doubt true that the transfer
of the appellant was subject to certain conditions but in view of his
subsequent appointment as Supervisor of Thanjavur Market Committee and
thereafter his regularisation on satisfactory completion of probation, those
conditions would not affect his tenure. In 1989, the Government of Tamil Nadu
decided to constitute separate service called the Tamil Nadu Agricultural
Marketing Subordinate Service and made Rules governing that service. In GOMs
No. 470 Agriculture dated 5.7.89 the rules for Tamil Nadu Agricultural
Marketing Subordinate Service Rules (hereinafter referred to as the `special
Rules) were issued.
Thus a
centralised Tamil Nadu Agricultural Marketing Subordinate Service was
constituted of which all the employees of district market Committee were
members.
Consequently
the employees of district market Committees ceased to be employees in separate
units of District Market Committees. By Rule 2, the Special Rules were given
retrospective effect from November 17,1981.
The Director of Agricultural Marketing was made the appointing authority for
the post of Supervisor under the Special Rules. Since the special rules were
framed in 1989 and given retrospective effect from 17.11.81 and in the
meanwhile many appointments were made by the Market Committees, the Government
issued orders first inserting Rule 7 in the special Rules providing that
nothing contained in those rules shall adversely affect the appointments and
promotions made under the provisions of 1962 Rules on and from 17.11.81 till
4.7.89. Further Rule 10 was added in the special Rules to ensure that nothing
contained in those Rules shall adversely affect any appointment and promotion
already made under the provisions of the 1962 Rules. In view of Rules 7 and 10,
referred to above, the appointment of the appellant by the Thanjavur Market
Committee which was valid under the 1962 Rules then in force, remained valid
even under the special Rules. It appears that the Government of Tamil Nadu
issued orders in GOMs 194 on 15.3.91 directing that each Market Committee shall
be treated as separate unit. The appellant who was already working as a
Supervisor in Thanjavur Market Committee on March 15,1991 was entitled to continue as Supervisor of that Market
Committee and he could not have been treated as employee of the District Market
Committee, Madurai in which he was initially
appointed. His repatriation to the District Market Committee, Madurai on the ground that it was his
parent Committee was wholly illegal for the simple reason that after formation
of centralised Marketing Subordinate Service the concept of the parent
committee and the borrowing Committee got obliterated. The order of the
Director transferring the appellant to District Market Committee, Madurai on the ground that it was his
parent Committee, in the absence of any specific rule authorising him to do so,
was clearly illegal. The Director was, therefore, justified in withdrawing the
illegal order. The Tribunal, in our view, erred in not treating the appellant
as employee of the Thanjavur Market Committee and in holding that his
promotion, regularisation and declaration of probation as Supervisor by the Thanjavur
Market Committee did no confer any right on him. Mr.A. Mariarputham, learned
counsel appearing for the respondents, however, relied on the judgment of this
Court in M/s.Onkarlal Nandlal vs. State of Rajasthan & Anr. [1985 (4) SCC
404]. That case arose under the Rajasthan Sales Tax Act. The question was
whether the sale in question was inter-State sale or intra-State sale.
The assessee
purchased poppy seeds against Declarations under Form ST 17 which indicated
that the purchases were for the purpose of resale within the State. But the
sale of the goods though inside the State, was effected in the course of
inter-State trade and commerce. The expression `resale within the State' in
Form No.ST 17, it was held by this Court, must be read in the light of
Explanation II to Section 2(o) of the State Act. The Explanation by
incorporating the provisions of Section 4(2) of the Central Sales Tax Act,
provided as to when a sale shall be deemed to be a sale within the State. It
was laid down that Explanation II to Section 2(o) of the State Act had to be
interpreted as if Section 4(2) of the Central Act was written out verbatim in
that Explanation and there was no occasion or need to refer to the Central Act
from which that incorporation was made or to its purpose or context. That
judgment is of no assistance to the respondent in interpreting the 1962 Rules
or special Rules or the amendment made to those Rules. For the above reasons,
the judgment and order under appeal is set aside. The appeal is allowed but in
the circumstances of the case without costs.
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