Madras High Court
Secretary To Government Of India vs The Central Administrative Tribunal on 14 March, 2013
Author: K.K.Sasidharan
Bench: K.K.Sasidharan, R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on :: 30.1.2015 Delivered on : 27.2.2015 CORAM: THE HONOURABLE MR. JUSTICE K.K.SASIDHARAN and THE HONOURABLE Ms. JUSTICE R.MALA Review Application No.206 OF 2014 in W.P.No.6185 of 2013 1.Secretary to Government of India, Ministry of Human Resource Development, Department of School Education & Literacy, B-Wing, Ground Floor, Shastri Bhavan, UT-1, Selection, New Delhi. 2.Secretary to Government, (Education), Chief Secretariat, Government of Puducherry, Union Territory of Puducherry 605 001. 3.The Director of School Education, Government of Puducherry, Kamaraj Centenary Education Complex, Puducherry 605 005. ... petitioners versus 1.The Central Administrative Tribunal, rep. By its Registrar, Addl. City Civil Court Building, High Court Campus, Chennai 104. 2.Directly Recruited Puducherry Government Trained Graduate Teachers Association, rep. By its President M.Selvakumar, D.No.2, Subramaniar Koil Street, Kosapalayam, Union Territory of Puducherry 605 013 3.M.Selvakumar : respondents Petition filed to review the order passed in W.P.No.6185 of 2013 dated 14.3.2013. For petitioners : Mr.G.Rajagoplan, Addl. Solicitor General of India, Assisted by Mr.R.Syed Mustaffa, Additional Government Pleader, Puducherry For respondents : Mr.N.G.R.Prasad, for R-2 Mrs.D.Nagasaila, for R-3 O R D E R
K.K.SASIDHARAN, J.
This is an application to review the order dated 14 March 2013 in W.P.No.6185 of 2013, pursuant to the liberty granted by the Honble Supreme Court.
Summary of facts :-
2. The respondents 2 and 3 herein filed original application in O.A.No.545 of 2009 before the Central Administrative Tribunal, Madras Bench, (hereinafter referred to as the Tribunal), praying for an order to fix the seniority of Secondary Grade Teachers (Subjects) upgraded as School Assistant Grade-II, (now re-designated as Trained Graduate Teachers), with effect from the date of their initial appointment in the post of Secondary Grade Teacher and to prepare interse seniority between School Assistant Grade-II and Language Teachers and to promote them to the post of Lecturer/Headmaster Grade-II / Deputy Inspector of Schools on the basis of such interse seniority.
3. The Tribunal, having found that the Government have fixed the seniority of Language Teachers after amalgamation, directed the applicants herein to finalize the issue regarding fixation of inter-se seniority by taking into account the date of initial appointment of 3rd respondent and members of 2nd respondent Association herein, in the post of Secondary Grade Teachers and consider them for further promotion. The order dated 4 May 2012 in O.A.No.545 of 2009 was subjected to judicial review by the petitioners. The Writ Petition in W.P.No.6185 of 2013 was dismissed by this Court by order dated 14 March 2013. While dismissing the Writ Petition, the Division Bench observed that the petitioners failed to draw a seniority list of Secondary Grade Teachers who were upgraded as School Assistant Grade-II.
4. The order dated 14 March 2013 in W.P.No.6185 of 2013 was challenged before the Supreme Court in S.L.P.No.14704 of 2013. Before the Supreme Court, learned Attorney General argued that para 2 of the impugned order is totally erroneous and is entirely on a wrong footing and contrary to the materials on record. This made the Supreme Court to observe that the remedy in such a case would be to apply to the High Court to review the order. Accordingly, the special leave petition was withdrawn with liberty. The petitioners, by invoking the liberty granted by the Supreme Court, have come up with this review application.
Submissions :-
5. The learned Additional Solicitor General, took us through the earlier proceedings and submitted that the case of respondents 2 and 3 cannot be equated or compared with the case of Language Teachers. According to the learned Additional Solicitor General, the Government have issued orders amalgamating the post of Language Teachers Grade-I and Grade-II into one single cadre of Language Teachers. In view of amalgamation involving candidates from two streams, interse seniority was fixed, taking into account their initial date of entry into service. The learned Additional Solicitor General contended that the case of respondents 2 and 3 stands on a different footing. The Government have upgraded 847 posts of Secondary Grade Teachers as School Assistant Grade-II, which is the promotional post. Since it is a promotional post and promotions were made by following the rule of reservation and adopting a selection method, based on seniority, subject to fulfillment of eligibility criteria, there is no question of fixing seniority or interse seniority taking into account the original appointment as Secondary Grade Teachers. The learned Additional Solicitor General contended that there was no merger of two cadres into a single cadre like Language Teachers, in the case of Secondary Grade Teachers, and therefore, the Tribunal erred in drawing a comparison between the case of Language Teachers and the case of Secondary Grade Teachers. It was further contended that in case the order passed by the Tribunal and upheld by this Court is implemented, it would unsettle the seniority drawn long back. The affected parties are not before this Court. The learned Additional Solicitor General further contended that promotion in this matter was not an upgradation simplicitor and as such, respondents 2 and 3 were not correct in claiming seniority from the date of initial appointment as secondary grade teachers.
6. The learned counsel for the 2nd respondent contended that the seniority of Language Teachers was drawn up on the basis of their initial date of appointment as Language Teacher Grade-I and Grade-II. However, in respect of School Assistant Grade-II, the petitioners fixed seniority not on the basis of initial appointment but taking into account the date of upgradation as School Assistant Grade II. According to the learned counsel, this differential treatment is nothing but discrimination prohibited under Article 14 of the Constitution of India.
7. The learned counsel for the 3rd respondent contended that the Tribunal earlier directed preparation of seniority list of Language Teachers. The same yardstick was directed to be adopted in the case of respondents 2 and 3, taking into account the initial date of appointment. Therefore, there is nothing to be reviewed.
Analysis :-
8. The only question that arises for consideration is whether the order passed by this Court is liable to be reviewed on the ground of failure to address the issues raised by the petitioners, to the effect that theory of amalgamation cannot be applied in the case of upgradation and certain fundamental errors apparent on the face of the record.
Amalgamation of the post of Language Teachers Grade-I and Grade-II :-
9. The documents available on record and the connected pleadings indicate that earlier, there were two grades in the post of Language Teacher (Tamil) viz., Language Teacher Grade-I and Language Teacher Grade-II. The Government of India, by order dated 27 March 1982, upgraded the post of Junior Teachers in Craft, Language, Music, Dance, Physical Education and Domestic Science in Delhi Government Service, who were in the pay scale of Rs.425-640 to Rs.440-750 which is the scale of pay of Senior Teachers. The Tamil Language Teachers of Puducherry, filed O.A.No.500/1989, before the Tribunal, for amalgamation of the post of Language Teachers Grade-I and Grade-II and to fix common pay scale on par with Language Teacher Grade-I, as done in the case of Junior and Senior Language Teachers in New Delhi and for grant of pay and arrears with effect from 27 March 1982. The Tribunal was pleased to pass an order dated 25 August 1992, directing the Government of Puducherry to revise the scale of pay, notionally with effect from 27 March 1982. The Government have complied with the said order by revising the scale of pay of Language Teacher Grade-II on par with Language Teacher Grade-I, with effect from 27 March 1982. The Government have issued an order in G.O.Ms.No.388, dated 9 June 1997, amalgamating the post of Language Teacher Grade-II and Language Teacher Grade-I, as single post. The amalgamated post was re-designated as Language Teacher (Tamil). This was made with effect from 25 August 1992, with a condition that in the combined seniority list of Language Teacher (Tamil), the erstwhile Language Teacher Grade-II shall be placed enbloc junior below the junior most erstwhile Language Teacher Grade-I.
10. The condition regarding placing the Language Teacher Grade-II below the Language Teacher Grade-I, in the combined seniority list was challenged in O.A.No.498 of 1998. The Tribunal, by order dated 9 February 2000, quashed the Government Order with regard to placing Language Teachers Grade-II as junior most. The Tribunal directed the Government to issue a fresh seniority list fixing the seniority of teachers, taking into account their date of joining the service irrespective of the date of amalgamation. The Government in compliance of the said direction, modified the date of amalgamation from 25 August 1992 to 9 September 1997 to settle the question regarding seniority. The subsequent order was challenged in O.A.No.703 of 2000. The Government, pursuant to the order dated 7 February 2001, in O.A.No.703 of 2000, finalized the seniority list of Language Teacher (Tamil) on 7 December 2006 and fixed the seniority of teachers on the basis of their date of joining services.
Upgradation of the post of Secondary Grade Teachers:-
11. The Government of Puducherry considered the revision of scale of pay of secondary teachers who were in possession of Degree qualification. The School Education Department identified 847 posts of Secondary Grade Teachers to be upgraded as School Assistant Grade-II, which is now re-designated as Trained Graduate Teachers. The post of Trained Graduate Teacher is a promotional post. The Government of Puducherry got approval from Government of India vide letter dated 7 November 2000, for upgradation of 847 posts, with a condition that only those Secondary Grade Teachers possessing qualification prescribed for School Assistant Grade-II alone to be placed in the higher scale. The Government of Puducherry thereafter issued an order in G.O.Ms.No.92, dated 9 March 2001, upgrading 847 posts of Secondary Grade Teachers. The upgraded posts of School Assistant Grade-II were filled up by promoting Secondary Grade Teachers, who were possessing degree with B.Ed. Qualification. Consequently, equal number of Secondary Graduate Teacher posts were abolished in a phased manner from 2001-2005 pursuant to the order dated 9 March 2001. It is a matter of record that the holders of Secondary Grade Teacher posts were not upgraded along with the post. The posts were upgraded by a process of selection in accordance with the recruitment rules for the higher promotional post of School Assistant Grade-II. In short, the entire exercise of filling up the post of School Assistant Grade-II created by way of upgradation of Secondary Grade Teacher posts, was by way of selection, based on seniority, subject to fulfillment of eligibility conditions, as per the recruitment rules and by following rule of reservation. The Government have accommodated 700 eligible Secondary Grade Teachers and the remaining 147 posts were upgraded in a phased manner between 2001 and 2005 as and when they completed the requisite years of service as per the recruitment rules. It is therefore clear that the entire exercise of upgradation was by promotion and not upgradation simplicitor.
Starting point of the present litigation :-
12. The action taken by the Government of Puducherry for fixing seniority of Language Teachers pursuant to the direction in O.A.No.498 of 1998 appears to have given inspiration to the respondents 2 and 3 to claim that their seniority also should be reckoned with effect from the date of their joining the entry grade post of Secondary Grade Teacher.
13. The respondents 2 and 3 filed O.A.No.545 of 2009, praying for an order to fix the seniority of Secondary Grade Teacher, upgraded as School Assistant Grade-II, from the date of initial appointment in the post of Secondary Grade Teacher and to prepare interse seniority between School Assistant Grade-II and Language Teachers.
14. The Tribunal, without making any attempt to analyze the difference between amalgamation and upgradation, allowed the original application. The operative portion of the order reads thus :-
11. Under the facts and circumstances of the case we direct that it is just and proper on the part of the respondents to finalize the long pending issue of fixation of interse seniority by taking into account the date of initial appointment of the applicants in the post of Secondary Grade Teacher as has been done in the case of Language Teachers and pass a reasonable order in respect of promotion to the post of Lecturer/Head Master Grade-II/ Deputy Inspector of Schools on the basis of the interse seniority list of the Trained Graduate Teachers (Language) and Trained Graduate Teachers (Subject), as expeditiously as possible.
15. The order dated 4 May 2012 in O.A.No.545 of 2009 was challenged in W.P.No.6185 of 2003. This Court found that the 3rd respondent and members of 2nd respondent Association were promoted as School Assistants Grade-II, against upgraded posts, prospectively. The Writ Petition was ultimately dismissed with the following observation :-
Though the respondents were appointed as early as in the year 1987, yet, under one pretext or the other, the petitioners have not considered their request for fixation of their seniority in the upgraded post. Each service has its own rules for preparation of seniority list. It is brought to the notice of this Court that, even in the case of Language Teachers, though there is no Rule enabling the petitioners to prepare the seniority list, yet, they are preparing the same. Therefore, we are unable to understand as to why the petitioners have not prepared the seniority list in respect of the respondents thereby, causing great hardship to them, especially, when they are similarly placed like that of the applicants in O.A.No.498 of 1998. Because of the non-preparation of the seniority list, the respondents are not in a position to known where they stand, even for seeking promotion to higher posts. Hence, we see no reason to interfere with the order under challenge. Consequently, the order under challenge is sustained and the Writ Petition is dismissed. No costs. Connected miscellaneous petition is closed.
16. The order passed by the Division Bench was taken up before the Supreme Court and ultimately, SLP was dismissed as withdrawn, with liberty to file review petition before this Court.
17. The Division Bench in its order dated 14 March 2013 recorded the arguments advanced by the petitioners to the effect that the members of 2nd respondent Association and 3rd respondent were promoted as School Assistant Grade-II, against upgraded posts prospectively and that there was no amalgamation of the posts of Secondary Grade Teachers and School Assistant Grade-II, so as to apply the principle enumerated in O.A.No.498/1998, meaning thereby, for the purpose of fixing interse seniority. The petitioners in their Writ Petition highlighted two vital aspects (i) The post of Secondary Grade Teacher was upgraded as School Assistant Grade-II prospectively; (ii) There was no amalgamation of two posts for fixing inter-se seniority. However, these two fundamental questions were left unanswered and proceeded as if it was a case of merger of two cadres, coming within the definition of amalgamation. The petitioners are therefore, justified in their contention that there is an error apparent on the face of record, liable for correction by exercise of review jurisdiction.
Amalgamation / Upgradation Basic difference :-
18. In case of amalgamation, there is an element of merger of two posts into one. However, in the case of upgradation, it is the post alone and it will be followed by promotion from the feeder category.
19. The Supreme Court in BSNL Vs. R.Santhakumari Velusamy and others, 2011(9) SCC 510, described the concept of upgradation in the following words:-
Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service. Upgradation can also be restricted to a percentage of posts in a cadre with reference to seniority (instead of being made available to all employees in the category) and it will still be an upgradation simpliciter. But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion.
20. The concept of upgradation by promotion is therefore not upgradation simplicitor. Such upgradation cannot be equated to amalgamation of posts.
21. It is the admitted case of the parties that there is no cadre of Language Teacher Grade-II at present and there is only one cadre viz., Language Teacher. The post of Secondary Grade Teacher which is now re-designated as Primary School Teacher continues to be the entry grade post and the post of School Assistant Grade-II, (now re-designated as Trained Graduate Teacher) is the next promotional post to that of Secondary Grade Teacher and the said post is still in existence. Similarly, the post of Secondary Grade Teacher continues to be the entry grade post. The Tribunal proceeded on the wrong premise that there is a merger of two cadres into a single cadre as in the post of Language Teacher. It was only under such misconception, the Tribunal directed the petitioners to fix interse seniority, taking into account the date of initial appointment in the post of Secondary Grade Teacher. The Tribunal in paragraph 11 of the order made it clear that seniority should be refixed taking into account the date of initial appointment, as has been done in the case of Language Teacher. This would make the position very clear that the Tribunal was of the mistaken impression that upgradation by promotion was in the nature of amalgamation.
22. There was absolutely no merger of two cadres into a single cadre in the case of Secondary Grade Teachers, while upgrading them as School Assistant Grade-II. Therefore, it is not necessary to draw a combined seniority list. This fundamental aspect was omitted to be considered earlier and as such, the petitioners are perfectly correct in contending that a serious mistake has crept in and the same is apparent on the face of the record.
23. The order passed by the Tribunal and the related order passed by this Court would involve serious civil consequences to the Language Teachers. It would result in unsettling the seniority settled long back and that too behind the back of affected parties.
24. The 3rd respondent and other teachers were appointed as School Assistant Grade-II by adopting the process of upgradation prospectively. The orders by which they were promoted have become final. None of the upgraded School Assistant Grade-II petitioners have challenged the order on the ground that it was prospective in nature. By claiming seniority retrospectively from the date of initial appointment as Secondary Grade Teacher, they are actually making an indirect attempt for promotion retrospectively. This substantial issue was not considered by this Court earlier and as such, on that count also, the order is liable to be reviewed.
25. Consequences of the order :-
(a) The seniority list relating to School Assistant Grade-II (presently Trained Graduate Teachers) who were appointed up to the year 1988 was finalized in 1996. Similarly, seniority of School Assistant Grade-II, who were appointed during the year 1989 and 1990 were finalized in the year 1998. Seniority of appointees of the year 1992 to 1994 and 1997 to 1999 were finalized on 3 August 2010 and 16 September 2010 respectively. The upgradation of 847 posts of Secondary Grade Teachers was done only in 2000. The 3rd respondent and the members of the 2nd respondent Association were all promoted and fitted against the upgraded posts of School Assistant Grade-II, from the year 2001 onwards till 2005. Therefore, their claim for seniority from the date of initial appointment in the lower cadre of Secondary Grade Teacher in 1989 onwards is totally baseless and would adversely affect the settled seniority.
(b) In case the request of respondents 2 and 3 is entertained and seniority is re-fixed with effect from the date of initial appointment, all Departmental Promotion Committee proceedings held from the year 1989 onwards for promotion to various cadres such as Lecturer, Headmaster Grade-II, Vice Principal etc. will have to be reviewed, leading to series of demotions and promotions, consequently unsettling the entire educational set up. In short, the Education Department would be compelled to fix the seniority of even retired teachers at the instance of those who entered the service or got promoted at a later point of time.
(c) The seniority list in the cadre of Trained Graduate Teachers, Lecturer, Headmaster Grade-I, Headmaster Grade-II, Vice Principal and Principal will also be required to be reviewed as the post of Secondary Grade Teacher is the entry Grade.
Non-joinder of necessary parties:-
26. The respondents 2 and 3 wanted the petitioners to give them seniority, taking into account their initial date of appointment and to prepare interse seniority list. Such refixation of seniority would affect the case of Language Teachers, Lecturer, Headmaster Grade-II, Vice Principal and Principal. Many of the employees have got promotion on the basis of the earlier seniority list in the post of Language Teacher. Eventhough direction given by the Tribunal would unsettle the seniority list and it would cause civil consequences to the promotees, none of them have been made parties to the Writ Petition. The petitioners are therefore, perfectly correct in their contention that the Tribunal should have dismissed the Writ Petition on the ground of non-joinder of necessary parties.
27. The Supreme Court in State of Bihar and ors. vs. Kameshwar Prasad Singh and another, 2000(9) SCC 94, held that in the absence of persons likely to be affected by the relief prayed for, the Writ Petition should be dismissed, unless there existed special reasons for non-impleadment of affected persons.
Unsettling the settled seniority list :-
28. The Government have finalized the seniority list in the cadres of Trained Graduate Teachers, Lecturers, Headmaster Grade-I, Headmaster Grade-II, Vice Principal and Principal long back. Since the post of Secondary Grade Teacher is the entry grade post, the entire seniority list should be revised in the event of upholding the order passed by the Tribunal and the related order passed by this Court.
Seniority a civil right :-
29. The Supreme Court in H.S. Vankani v. State of Gujarat, (2010) 4 SCC 301, underlined the importance of seniority and the consequences of unsettling the seniority.
The Supreme Court said :-
38. Seniority is a civil right which has an important and vital role to play in ones service career. Future promotion of a government servant depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum-seniority, etc. Seniority once settled is decisive in the upward march in ones chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instils confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority at the instance of ones junior in service is unsettled, it may generate bitterness, resentment, hostility among the government servants and the enthusiasm to do quality work might be lost. Such a situation may drive the parties to approach the administration for resolution of that acrimonious and poignant situation, which may consume a lot of time and energy. The decision either way may drive the parties to litigative wilderness to the advantage of legal professionals both private and government, driving the parties to acute penury. It is well known that the salary they earn, may not match the litigation expenses and professional fees and may at times drive the parties to other sources of money-making, including corruption. Public money is also being spent by the Government to defend their otherwise untenable stand. Further, it also consumes a lot of judicial time from the lowest court to the highest resulting in constant bitterness among the parties at the cost of sound administration affecting public interest.
39. Courts are repeating the ratio that the seniority once settled, shall not be unsettled but the men in power often violate that ratio for extraneous reasons, which, at times calls for departmental action.
30. The Supreme Court in State of U.P. And others vs. Dinkar Sinha, 2007(7) Scale 8, held that seniority is a civil right and infringement of the said right would be permissible only if there exists any rules validly framed under a statute or proviso appended to Article 309 of the Constitution of India.
Estoppel :-
31. The petitioners have produced specimen copies of the orders issued to the 3rd respondent and few other teachers, placing them in the upgraded scale of School Assistant Grade-II. The order proceeds as if they were all promoted. The 3rd respondent and other teachers accepted the order of promotion which was made effective from the date of order. They were all treated as Juniors to Language Teachers appointed between 1986 and 2000, in the matter of promotion to next higher cadre of Lecturer and Headmaster Grade-II. The promotees like the 3rd respondent have all accepted the orders without protest. They are now estopped from claiming entry into promotional post from the date on which they held the feeder post.
Seniority from the date on which employee was not borne in the cadre:-
32. The claim of respondents 2 and 3 to fix seniority of Secondary Grade Teachers upgraded as School Assistant Grade-II and re-designated as Trained Graduate Teachers with effect from the date of their initial appointment in the post of Secondary Grade Teacher, is opposed to all canons of service jurisprudence. It is a settled position that persons cannot claim seniority from a date on which they were not even borne into the cadre. The members of the 2nd respondent Association and third respondent are not entitled to claim seniority from the date on which they possessed the degree qualification in the feeder category of Primary Grade Teacher. The claim of seniority from the date of initial entry would lead to a piquant situation where even the Secondary Grade Teachers recruited with SSLC/HSC and TTC under the non-graduate quota will have to be given retrospective seniority in the cadre of Trained Graduate Teacher from the date of their appointment as Secondary Grade Teacher notwithstanding the fact that they were not at all qualified for the post of School Assistant Grade-II, as on that date.
33. The Supreme Court in Amarjeet Singh v. Devi Ratan, (2010) 1 SCC 417, held that an employee cannot be given seniority prior to his birth in the cadre.
The Supreme Court said :-
27. The law permits promotion with retrospective effect only in exceptional circumstances when there has been some legal impediment in making the promotions, like an intervention by the court. An officer cannot be granted seniority prior to his birth in the cadre adversely affecting the seniority of other officers who had been appointed prior to him. The latecomers to the regular stream cannot steal a march over the early arrivals in the regular queue. [Vide S.P. Kapoor (Dr.) v. State of H.P. Shitla Prasad Shukla v. State of U.P. (SCC p. 190, para 10) and Uttaranchal Forest Rangers Assn. (Direct Recruit) v. State of U.P.]
34. The view expressed in Amarjeet Singh was followed by the Supreme Court in Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267.
Supreme Court on Review Jurisdiction:
35. The Supreme Court in S. Nagaraj v. State of Karnataka, [1993 Supp (4) SCC 595] indicated the concept of review jurisdiction thus :
"18.Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court."
36. The Supreme Court in Board of Control for Cricket in India v. Netaji Cricket Club, (2005) 4 SCC 741, considered the scope and ambit of review jurisdiction under Order 47 Rule 1 of Civil Procedure Code and observed thus:
"88. ... Section 114 of the Code empowers a court to review its order if the conditions precedent laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit.
89.Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
90.Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words sufficient reason in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit."
37. In Lilly Thomas and others vs. Union of India and others, [2000(6) SCC 224], the Supreme Court observed that in case the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error.
38. The Supreme Court in State of Rajasthan vs. Surendra Mohnot, 2014(8) Scale 41, indicated the importance of acceptance of mistake.
The Supreme Court said :-
non acceptance of a mistake is not a heroic deed. On the contrary, it reflects flawed devotion to obstinancy. The pink of perfection really blossoms in acceptance.
39. The Supreme Court in Surendra Mohnot observed that when self evident errors come to the notice of the Court and they are not rectified in exercise of review jurisdiction or jurisdiction of recall which is a facet of plenary jurisdiction under Article 226 of the Constitution of India, a grave miscarriage of justice would occur.
40. The jurisdiction under Article 226 of the Constitution of India is otherwise known as Equity jurisdiction. This Court is having plenary jurisdiction. Justice is above all. Technicality should not stand in the way of rectifying errors or mistakes.
41. The learned counsel for 2nd respondent contended that scope of review is very limited after the dismissal of Special Leave Petition. According to the learned counsel, by giving liberty, the Supreme Court has not conferred any special right on the petitioners. The learned Additional Solicitor General in his reply submitted that an order dismissing the Special Leave Petition in limine would not constitute a decision on merits and as such, review is maintainable even after such dismissal. According to the learned Additional Advocate General, the petitioners are in a better position, in view of the liberty granted by Supreme Court.
Supreme Court on Review after dismissal of Special Leave petition :-
42. The Supreme Court in Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455, indicated the legal position regarding maintainability of review petition before the High Court after the dismissal of special leave petition.
The Supreme Court said :-
7. There is no dispute to the settled proposition of law that dismissal of the special leave petition in limine by this Court does not mean that the reasoning of the judgment of the High Court against which the special leave petition has been filed before this Court stands affirmed or the judgment and order impugned merges with such order of this Court on dismissal of the petition. It simply means that this Court did not consider the case worth examining for the reason, which may be other than merit of the case. Nor such an order of this Court operates as res judicata. An order rejecting the special leave petition at the threshold without detailed reasons therefore does not constitute any declaration of law or a binding precedent.
43. The Supreme Court in Gangadhara Palo v. Revenue Divisional Officer, (2011) 4 SCC 602, held that a review petition is maintainable before the High Court in spite of dismissing the Special Leave petition, if the order was not on merits. The Supreme Court said :-
5. We regret, we cannot agree. In our opinion, it will make no difference whether the review petition was filed in the High Court before the dismissal of the special leave petition or after the dismissal of the special leave petition. The important question really is whether the judgment of the High Court has merged into the judgment of this Court by the doctrine of merger or not.
6. When this Court dismisses a special leave petition by giving some reasons, however meagre (it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges into the judgment of the higher court. Hence, if some reasons, however meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist.
7. The situation is totally different where a special leave petition is dismissed without giving any reasons whatsoever. It is well settled that special leave under Article 136 of the Constitution of India is a discretionary remedy, and hence a special leave petition can be dismissed for a variety of reasons and not necessarily on merits. We cannot say what was in the mind of the Court while dismissing the special leave petition without giving any reasons. Hence, when a special leave petition is dismissed without giving any reasons, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors apparent on the face of the record. If, on the other hand, a special leave petition is dismissed with reasons, however meagre (it can be even of just one sentence), there is a merger of the judgment of the High Court in the order of the Supreme Court.
44. The Supreme Court has thus made the law clear that review petition is maintainable even after dismissal of Special Leave Petition. In the present case, the Supreme Court granted liberty to the petitioners to file a review petition. The review would come within the four corners of Order 47 Rule 1 of Code of Civil Procedure and the parameters indicated by the Supreme Court. We are therefore of the view that this is a fit case to exercise the review jurisdiction, as otherwise, it would result in injustice not only to the petitioners but also to the Language Teachers, who are not before us.
45. This Court being a Court of record is bound to correct its mistakes. The Tribunal committed a fundamental mistake by treating amalgamation and upgradation as one and the same. This issue, which would go to the root of the matter, was not considered by this Court earlier while dismissing the Writ Petition. We are, therefore, of the considered view that the petitioners have made out a case for review of the order dated 14 March 2013 in W.P.No.6185 of 2013.
Disposal :-
46. We, therefore, review the order in W.P.No.6185 of 2013, confirming the order dated 4 May 2012 in O.A.No.545 of 2009. In short, the Writ Petition in W.P.No.6185 of 2013 is allowed. The order passed by the Tribunal dated 4 May 2012 in O.A.No.545 of 2009, is set aside.
47. In the upshot, we allow the review petition. No costs.
(K.K.S., J.) (R.M., J.) 27.2.2015 Index : yes Internet : yes tar To 1.Secretary to Government of India, Ministry of Human Resource Development, Department of School Education & Literacy, B-Wing, Ground Floor, Shastri Bhavan, UT-1, Selection, New Delhi. 2.Secretary to Government, (Education), Chief Secretariat, Government of Puducherry, Union Territory of Puducherry 605 001. 3.The Director of School Education, Government of Puducherry, Kamaraj Centenary Education Complex, Puducherry 605 005. K.K.SASIDHARAN, J. and R.MALA, J. P.D. Order in Review Appl (Writ) No.206/2014 27.2.2015