Madras High Court
K.Kandasamy vs The Secretary To Government on 27 March, 2008
Bench: P.K.Misra, G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/03/2008 CORAM THE HONOURABLE MR.JUSTICE P.K.MISRA AND THE HONOURABLE MR.JUSTICE G.RAJASURIA Rev.P.(MD) No.17 of 2007 and Rev.P.(MD) No.18 of 2007 in W.A.(MD)Nos.206 and 383 of 2006 K.Kandasamy .. Petitioner in both the Review Petitions/R1 in W.A.(MD)No.206 of 2006/ Respondent in W.A.(MD)No.383 of 2006 Vs 1.The Secretary to Government Labour & Employment Department Fort St. George, Chennai - 600 009. 2.The Joint Director of Employment & Training, Craftsmen Training Scheme, Chepauk, Chennai - 600 005. 3.The Deputy Director/Principal, Government Industrial Training Institute, Madurai - 625 007. .. Respondent Nos.1 to 3 in both the Review Petitions/ Respondent Nos.2 to 4 in W.A.(MD)No.206 of 2006/ Appellants in W.A(MD)No.383 of 2006 4.K.Ravi 5.H.Sukumar 6.R.Rengasamy .. Respondent Nos.4 to 6 in Rev. P(MD) No.17 of 2007/ Appellant Nos.1 to 3 in W.A.(MD)No.206 of 2006 Prayer in both the Review Petitions Review Petitions filed under Order 47, Rules 1 and 2 read with Section 114 of CPC, to review the common order dated 04.11.2006 passed by this Court in W.A.(MD)Nos.206 and 303 of 2006. !For Petitioner ... Mr.G.R.Swaminathan ^For RR1 to 3 ... Mr.Pala.Ramasamy Special Government Pleader For RR1 to 6 ... Mr.G.Prabhu Rajadurai :COMMON JUDGMENT
(Judgment of the Court was delivered by P.K.MISRA,J) These review petitions are focussed as against the common order dated 04.11.2006 passed by this Court in W.A.(MD)Nos.206 and 303 of 2006.
2. Animadverting upon the common order dated 04.11.2006 passed by this Court in W.A(MD)Nos.206 and 383 of 2006, K.Kandasamy, the first respondent in W.A.(MD)No.206 of 2006 and respondent in W.A.(MD)No. 383 of 2006 filed these review petitions on the following grounds interalia thus:
There are errors apparent on the face of the records. The order dated 04.11.2006 passed the Division Bench of this Court that the seniority had to be reckoned only from the date of acquiring diploma qualification by the petitioner herein and not based on his entire length of service, runs counter to the Judgment of the Hon'ble Apex Court in M.B.Joshi v. Satishkumar pandey reported in (1993)Supple.2 SCC 419 and in D.Stephen Joseph v. Union of India reported in 1997(4) SCC 753. Earlier, the Division Bench of this Court did not consider the validity of the impugned letter No.1535/A1/86-13 dated 05.10.1987, which was intended to prescribe a temporary measure in the absence of any rule or amendment to the sub-rules, in view of having decided it to reverse the order of the learned Single Judge of this Court. The decision of the Hon'ble Apex Court in Chandravathy P.K. v. C.K.Saji reported in 2004(3) SCC 734 relied on by the Division Bench of this Court is erroneous in the facts and circumstances of this case. In the absence of any service rules for determining the seniority of members who belong to the same service, the entire length of service should be taken into account for reckoning the seniority. Even though the feeder category to the post of Training officer is Assistant Training Officer, nonetheless the seniority has to be reckoned by taking into account the service rendered by the individual in the post of Junior Training Officer, for promotion to the post of Training Officer. Even though, the review petitioner herein, acquired diploma during April, 1996, while he was functioning as Junior Training Officer, yet he was promoted as Assistant Training Officer during the year 1998 only and this fact has not been considered by the Division Bench of this Court. Accordingly, the review petitioner prayed for reviewing the earlier Judgment dated 04.11.2006 and consequently for dismissing the writ appeals.
3. Heard both sides.
4. The point for consideration is as to whether there is any error apparent in applying the relevant law to the facts and circumstances of this case in deciding the writ appeal Nos.206 and 303 of 2006 by virtue of the common order dated 04.11.2006?
The point:
5. The learned counsel for the review petitioner would advance his arguments that the learned Single Judge vide order dated 10.03.2006 in W.P.No.683 of 2005 had not decided the challenge to the validity of the order dated 05.10.1997 issued by the Secretary to Government, Labour and Employment Department, Fort St. George, Chennai-9, but decided the writ petition in favour of the review petitioner herein by holding that the subsequent letter dated 19.05.2004 issued by the Joint Director would enure to the benefit of the review petitioner herein; however the Division Bench of this Court reversed the finding of the learned Single Judge of this Court that the letter dated 05.10.1997 issued by the Secretary to Government, Labour and Employment Department, Fort St. George, Chennai-9 cannot be taken to have been superseded by the letter dated 19.05.2004 by the Joint Director and in such an event, the Division Bench of this Court should have remitted back the matter to the learned Single Judge of this Court for deciding the constitutional validity of the letter dated 05.10.1997 issued by the Secretary to Government, Labour and Employment Department, Fort St. George, Chennai-9. He would also by reiterating the grounds of review petition as found set out supra, pray for reviewing the earlier common order of the Division Bench of this Court. Whereas the learned counsel for the respondent Nos.4 to 6/appellant Nos.1 to 3 in W.A.(MD)No.206 of 2006 and the learned Special Government Pleader would oppose the review petitions.
6. At the outset itself we would like to highlight that a mere perusal of the earlier Judgment of the Division Bench of this Court would reveal that all the points now raised by the review petitioner herein in these review petitions, have been elaborately dealt with by us in the order dated 04.11.2006 itself and the grounds as found set out in the review petitions are not highlighting any error apparent in applying the law in the facts and circumstances of the case.
7. However, the tenor of the grounds and the arguments submitted by the learned counsel for the review petitioner herein, are by way of persuading this Court to replace our earlier decision by interpreting differently in tune with the grounds as found set out in the review petitions, which in our opinion is beyond the scope of review jurisdiction of this Court. In our earlier Judgment dated 04.11.2006, we referred to the Hon'ble Apex Court's Judgment and the relevant service rules and the letters concerned and decided the matters. In such a case, we do not think that there is any scope to review the earlier decision.
8. Nevertheless for the purpose of comprehensively deciding these review petitions, we proceed to discuss objectively further as to how these review petitions are not tenable. The review petitioner presses for countenancing by this Court that his entire length of service as Junior Training Officer even before acquiring the diploma qualification, while he was functioning as Junior Training Officer, should be reckoned for counting his seniority to the post of Trainer; for which the feeder post is admittedly the Assistant Training Officer, which is superior post to Junior Training Officer. Ex facie and prima facie, the arguments advanced on the side of the review petitioner is against the principles of natural justice and service jurisprudence and that too when the factual position as already found set out in our earlier order dated 04.11.2006 was that as on the date of the review petitioner entering the feeder post, viz., Assistant Training Officer post, R4, R5 and R6, who are the appellants viz., K.Ravi, H.Sukumar and R.Rengasamy in W.A.No.206 of 2006, were functioning as Assistant Training Officers, having diploma qualifications. In our earlier order at paragraph Nos.14, 15 and 16, we have discussed at length by referring to the earlier litigations on the same issue and also the decision rendered by one other Division Bench of this Court in W.P.No.6046 of 1998 dated 13.03.2002. In fact, we extracted an excerpt from the said order of the Division Bench also. The Tamil Nadu Industrial Officers Association, Madras represented by its General Secretary, initiated the proceedings earlier by filing T.A.No.851 of 1993 and O.A.No.280 of 1994 before the Tamil Nadu Administrative Tribunal, Madras and as against the said order of the Tribunal only the said W.P.No.6046 of 1998 was came to be filed and in that one other Division Bench of this Court rendered its Judgment holding that promotions could be given based on the letter dated 05.10.1997 issued by the Secretary to Government, Labour and Employment Department, Fort St. George, Chennai-9 and while so, the review petitioner challenged the said letter dated 05.10.1997 by filing a fresh writ petition viz., W.P.No.683 of 2005.
9. As such, earlier this Division Bench extracting excerpts from those decisions discussed at length the various issues and arrived at the conclusion and in such a case, the question of we having failed to consider the validity of G.O. does not arise and there is no necessity also to remand the matter back to the learned Single Judge of this Court for deciding the W.P.No.683 of 2005 afresh, as requested by the learned counsel for the review petitioner herein.
10. The review petitioner had two avenues for promotion, one as a diploma holder and another as a certificate holder. Based on this admitted factual position, the Division Bench of this Court considered earlier the precedents and decided the appeal. While filing the review petitions, the detailed findings given by this Division Bench have conveniently been omitted to be referred to therein and in a vague manner, it has been stated that the decisions of the Hon'ble Apex Court have not been considered by this Division Bench.
11. The learned counsel for the review petitioner herein simply ignoring the admitted fact that the said K.Ravi, H.Sukumar, R.Rengasamy, the appellants in W.A.No.206 of 2006, were already functioning as Assistant Training Officer in the feeder post viz., Assistant Training Officer even before the review petitioner herein, entering into that feeder post after acquiring the Diploma and that to without exercising his option to seek promotion under certificate holder category. In our opinion, the grounds of appeal have been focussed in a one sided manner suppressing the factual issues and the legal points dealt with by us in our earlier common order.
12. In our earlier Judgment at paragraph No.23, we extracted an excerpt from the decision of the Hon'ble Apex Court in Chandravathi P.K. v. C.K.Saji reported in 2004(3) S.C.C.734 and applied the ratio decidendi carefully to the facts and circumstances of this case to the effect that the past service of the review petitioner herein as Junior Training officer before acquiring the requisite qualification viz., the diploma cannot be counted for reckoning his seniority. Nothing has been highlighted now as to how the said decision of the Hon'ble Apex Court is not applicable in the facts and circumstances of the case, even though in the review petition, it has been simply stated as though the said decision of the Hon'ble Apex Court is not applicable to the facts and circumstance of the case. The perusal of the cited Judgment of the Hon'ble Apex Court would disentitle the review petitioner from claiming seniority based on his service as Junior Training Officer prior to his acquiring diploma qualification.
13. The learned counsel for the review petitioner while arguing these review petitions by placing reliance on the ground No.10 of the grounds of review would draw the attention of this Court to paragraph No.3 of the counter filed by the Joint Director of Employment and Training (Craftsman Training Scheme), Guindy, Chennai 600 032 and develop his arguments that combined seniority in the post of Junior Training Officer and Assistant Training Officer is contemplated and as such the review petitioner would be entitled to his claim. We are of the considered opinion that such an argument is neither here nor there. For better appreciation, we extracted here under the paragraph No.3 of the counter filed by the Joint Director of Employment and Training (Craftsman Training Scheme), Guindy, Chennai 600 032:
"3. It is also submitted that the petitioner is working as Assistant Training Officer (Fitter) in Government Industrial Training Institute, Madurai. His name was not included in the Training Officer panel for the year 2004-2005 as he has not reached his turn under diploma Quota. Promotion to the Post of Training Officer is made in the ratio 1:1:1 (i.e 1 Degree/Diploma, 1.SSLC,
1.ESLC) as per the combined seniority in the post of Junior Training Officer and Assistant Training Officer." (emphasis supplied)
14. A mere perusal of the aforesaid extract would clearly indicate that the review petitioner is trying to cite the aforesaid excerpt out of context. The Joint Director specified in his counter about the ratio 1:1:1, i.e., 1 Degree/Diploma 1.SSLC 1.ESLC. Furthermore, in paragraph No.4, he clarified as to how the claim of the review petitioner is untenable by explaining the changed situation, which resulted consequent upon the issuance of further G.Os.
15. To the risk of repetition, without being tautologous, we would highlight that the review petitioner has not made out his case in which ratio, he opted and how he has been aggrieved in view of the details as found set out by the Joint Director in his counter. The counter has to be read in toto and not in isolation. In the counter, the Joint Director had clearly stated that the petitioner has not reached the turn under the diploma quota and nowhere the review petitioner highlighted in any of the proceedings as to how the Joint Director was wrong in stating that the petitioner has not reached his turn under the diploma quota. As such, the Joint Director's counter relating to the ratio cannot be cited out of context by the review petitioner. Nowhere, the Joint Director in his counter averred that it should be construed that the service rendered by the review petitioner as J.T.O. before acquiring the qualification should be reckoned for considering him under the diploma quota. Absolutely there is no iota or shred of detail available on the petitioner's side to prove that he would be senior if as per the counter, the seniority is reckoned. But on the other hand, R4, R5 and R6 acquired Diploma qualification earlier to the petitioner and earlier to him they started functioning in the promoted post of A.T.O.
16. The learned counsel for the review petitioner also strenuously argued that there is difference between the eligibility for promotion and the seniority for promotion. No doubt there is no quarrel over such a proposition. However, in cases like this, the eligibility criteria cannot completely be excluded for reckoning the seniority. Put simply, we are of the considered opinion that these review petitions are nothing but a tool to make this Division Bench to act as an appellate Court over our own earlier order. As such there is no error apparent in our earlier common order and accordingly, we are of the view that these review petitions have to be dismissed.
17. In the result, there is no merit in these review petitions and accordingly dismissed. No costs.
smn To
1.The Secretary to Government Labour & Employment Department Fort St. George, Chennai - 600 009.
2.The Joint Director of Employment & Training, Craftsmen Training Scheme, Chepauk, Chennai - 600 005.
3.The Deputy Director/Principal, Government Industrial Training Institute, Madurai - 625 007.