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P.N.Rethinakumar v. A.V.Chairties - CRP.NPD.Nos.385 OF 2007  RD-TN 2351 (17 July 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.07.2007
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.R.P.NPD.NOS.385 AND 1527 OF 2007
M.P.NOS.3 AND 1 OF 2007
C.R.P.NPD.NO.385 OF 2007:
P.N.Rethinakumar .. Petitioner Vs.
Nagapattinam District .. Respondents C.R.P.NPD.NO.1527 OF 2007:
3.N.Rathina Kumar .. Petitioners Vs.
rep. by its Secretary,
2.C.Senthilvel .. Respondents
These civil revision petitions have been preferred under Article 227 of the Constitution of India against the proceedings of the Scheme Court (Principal Subordinate Judge), Mayiladuthurai dated 2.1.2007 and against the order dated 16.4.2007 made in OS No.68 of 1948 as amended in O.S.No.17/60 as amended in O.S.No.234 of 1994 on the file of the Scheme Court (Principal Subordinate Judge, Mayiladuthurai) respectively. For Petitioners : Mr.M.Balasubramanian in CRP.NPD.No.385 of 2007 Mr.A.Jenasenan in CRP.NPD.No.1527 of 2007 For Respondents : Mr.T.P.Sankaran in both the petitions
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This order shall govern these two civil revision petitions, namely C.R.P.Nos.385 and 1527 of 2007, whereby the order of the Scheme Court, making an appointment of the member to the Educational committee of A.V.C. Trust, Mayiladuthurai is challenged.
2.The court heard the learned counsel on either side. Admittedly, the educational committee of the said trust has to function with nine members, out of whom, six were to be appointed from five families and out of the other three, one would be the ex-officio member and the other two would be the female members. All the members have got to be appointed by the Scheme Court. On the communications made by the Manager of the Trust on 22.11.2006 and 23.12.2006, the Scheme Court called for applications for appointment of one member, which would fall vacant. Accordingly, three of the aspirants put forth their applications and objections were also called for by the Scheme Court. They were all considered and the scheme Court appointed one Senthilvel, as the member of the educational committee, which was the subject matter of challenge in these two civil revision petitions.
3.The principal contention put forth by the revision petitioner in CRP No.385 of 2007 is that whenever any vacancy arises, as per clause 5(b) of the Scheme decree, an intimation as to the vacancy was to be given by the Manager of the trust within a period of three weeks from the time when the vacancy arose and thereafter, all procedural formalities should have been followed. In the instant case, the vacancy fell only on 8.1.2007, but communication from the Manager emanated on 15.12.2006 itself as found in the order. Under these circumstances, while the rule mandates so, it is in contravention of rule found in the scheme decree and hence, all further proceedings have got to be set aside, since it would violate the scheme decree.
4.C.R.P.No.1527 of 2007 challenges the consequent appointment of one Senthilvel as the member of the educational committee on the ground that there were three applicants, one was Dr.Subramanian, the second one was E.S.Natarajan and the third one was Senthilvel. Out of three, Dr.Subramanian was attached to the hospital at Annamalai University and he was practising there and hence, he could not be appointed. So far as the other two were concerned, the lower court thought it fit that both are equally fit for appointment, but E.S.Natarajan was a resident of Chidambaram and hence, he was not to be preferred. But, at the same time, Senthilvel, who is the resident of Mayiladuthurai, for the purpose of administration, could be appointed, but the appointment, according to the revision petitioners, is not correct for the simple reason that the said Senthilvel is only a graduate; that he is only 41 years old and he has also served for a period of five years till January, 2007; that so far as E.S.Natarajan was concerned, he was in judiciary for three decades and the reason that he is the practising lawyer at Chidambaram and hence, he cannot be appointed, cannot be a reason at all, since the same scheme Judge has appointed the two lady members, who are actually residing at Neyveli and Karaikudi, as the members of the educational committee and under these circumstances, the reasons adduced for not appointing E.S.Natarajan would not hold good. The learned counsel has relied on a decision of this court reported in 1986 TLNJ 172 (E.S.CHOCKALINGAM VS. N.RATHNAKUMAR), wherein the court was of the opinion that the elderly persons should be preferred than the young and the court has set aside the appointment of a younger person on that occasion. Thus, in the instant case, Mr.E.S.Natarajan has been in judiciary for three decades and he is aged 78 years and he is also a practising lawyer and hence, he is preferable than the other, who is now appointed and under these circumstances, the order has got to be set aside.
5.Contrary to the above contentions, it is contented by the learned counsel for the respondent that in the instant case, pursuant to the intimation made by the Manager, the Subordinate Judge/the Scheme Court called for applications and accordingly, three were the applicants and objections were also called for. They were all considered and the court thought it fit to appoint Mr.Senthilvel and accordingly, it has appointed him. The learned counsel would submit that in the instant case, intimation has emanated from the Manager and not from the Chairman, as put forth by the other side. It is true, as per clause 5(b) of the scheme decree, an intimation should be emanated from the Manager of the trust within three weeks from the falling of vacancy, but it is true, an intimation has been given even before the vacancy fell. But, all procedural formalities have been followed and no prejudice is shown to have been caused by the said appointment. Under these circumstances, in the absence of any prejudice that is shown or caused, no question of setting aside the appointment would arise. The intimation was given by the Manager earlier in order to avoid the delay. Thus, coupled with the absence of any prejudice, the appointment has got to be affirmed.
6.The learned counsel would further state that so far as the appointment of Senthilvel is concerned, admittedly the trust has got educational institutions, which are situated at Mayiladuthurai and the said Senthilvel is actually the person residing at Mayiladuthurai and thus, the appointment of the said Senthilvel was advantageous to the institutions, since the day today administration of the institution would be carried on smoothly and effectively. So far as the other two candidates were concerned, one is the Doctor attached to the hospital at Annamalai University, Chidambaram and the other one is Mr.E.S.Natarajan, who is a practising lawyer at Chidambaram and hence, they could not be appointed. Added further the learned counsel that so far the appointment of two lady members are concerned, it is true, they are actually residing at Neyveli and Karaikudi. It is pertinent to point out that though they are the members of the educational committee, they were not given any official duty and hence, it was not challenged and under these circumstances, the same cannot be a reason for appointment of the member, who is outside the Mayiladuthurai and hence, the order, in no way, would affect or cause prejudice to the other side and hence, the appointment of Senthilvel has got to be affirmed.
7.The court has paid its anxious consideration on the submissions made and also looked into the materials available.
8.The main contention that was raised by the revision petitioner in CRP.No.385 of 2007 is that there was violation in following the clause 5(b) of the scheme decree, which would stipulate that whenever vacancy falls, an intimation to the Scheme Court within a period of three weeks from the date of when the vacancy falls should be given and all the procedural formalities should be adopted. In the instant case, admittedly, the vacancy fell on 8.1.2007, but even before that, the intimation was given on 15.12.2006 and the procedures have been followed and thus, it would violate clause 5(b) of the scheme decree and under these circumstances, it has got to be set aside. After going through the materials available, it would be quite clear that the scheme decree passed by the court actually stipulates the rules for and to be followed by the trust. It is pertinent to point out that there are two committees, namely educational committee and college committee. So far as the educational committee is concerned, there are separate rules, which have been framed and followed.
9.Now, what was to be pointed out is that there arose vacancy in the membership of the educational committee, since the period of member came to an end on 8.1.2007. As could be seen from the scheme decree, clause 5(b) operates and could be enforced for the appointment by making an intimation within a period of three weeks when the vacancy arose only in the case of trustee and not in the case of members of the educational committee and hence, it is not applicable. Now, in the instant case, the situation arose for the appointment of a member to the educational committee. It is an admitted position that an intimation was given by the Chairman on 15.12.2006 and accordingly, publications were made and applications were called for and the instant appointment has taken place. At this juncture, it is brought to the notice of the court that though specific rules were not available in the scheme decree, there was resolution passed on 3.5.1980. From the very reading of the same, it would be quite clear that whenever vacancy arose, it must be brought to the notice of the Chairman within a period of fortnight when it fell vacant and immediately, it should be brought to the notice of the Scheme Court within a week therefrom. Thus, the very reading of the resolution would make it clear that it has got to be intimated to the court only after vacancy arose.
10.At this juncture, the learned counsel for the respondent would submit that a procedure has been followed from 1980, where an intimation was given earlier even before vacancy arose and even when the petitioner, who has challenged the appointment of the said Senthilvel, was appointed, the intimation was given earlier to the court and it has been now followed and apart from that, according to the learned counsel, no prejudice would be caused by an earlier intimation and in order to avoid the avoidable delay, it has been done. The resolution that was passed is not a part of the scheme decree. Once it is brought to the notice of the court that on earlier occasion, actually intimations were given earlier to the scheme court and the applications have been entertained, now it cannot be entertained as a grievance. Added further, the petitioner is unable to show whether there was any prejudice caused. Further, objections were also considered. The court is of the considered opinion that no prejudice is shown to have been caused. On the ground of technical and non-observance of the procedural formalities, the order of the learned Subordinate Judge/Scheme Court cannot be set aside. Hence, C.R.P.No.385 of 2007 requires an order of dismissal. Accordingly, it is dismissed. No costs. Consequently, connected MP is also dismissed.
11.So far as C.R.P.No.1527 of 2007 is concerned, as could be seen from the order, there were three aspirants, namely Dr.Subramanian, E.S.Natarajan and Senthilvel. Out of three persons, one Dr.Subramanian was attached to the Annamalai University Hospital at Chidambaram and that he could not participate in the administration, since the institutions are situated at Mayiladuthurai and hence, the court is able to see force in his rejection. So far as the other two candidates are concerned, the Scheme Court has found out that both were fit persons to be appointed, but the court has pointed out that the place of residence of E.S.Natarajan is at Chidambaram and the place of residence of Senthilvel is at Mayiladuthurai and the institution are situated at Mayiladuthurai and hence, for better administration, the person belonged to Mayiladuthurai could be well appointed. At this juncture, several instances are brought to the notice of the court, where on the earlier occasions, the persons living at different places have been appointed. It is also brought to the notice of the court that two lady members, who are actually staying at Neyveli and Karaikudi, were appointed as members of the committee. The contention put forth by the learned counsel for the respondent is that they were not given any official duty. Hence, the contention that they were living at different places, though pointed out, cannot be countenanced.
12.It is pertinent to point out that the person, who was appointed by the court, has served for a period of five years till January, 2007. The added circumstance is that so far as the other candidate is concerned, he was in judiciary for a period of three decades and is aged about 78 years also. It is brought to the notice of the court that the elderly and experienced persons have got to be preferred in the administration than the young. Hence, the cumulative facts and circumstances of the case would be to set aside the order and to keep open for calling for applications afresh. Accordingly, it is set aside. The learned Subordinate Judge is directed to call for applications afresh within a period of four weeks from the date of receipt of copy of this order, consider the same and pass suitable orders in appointment of members to the educational committee. Accordingly, CRP No.1527 of 2007 is disposed of. No costs. Consequently, connected MP is closed. vvk
The Principal Subordinate Judge
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