Madras High Court
R.Manoharan vs Government Of Tamil Nadu on 28 June, 2013
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28-6-2013 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Review Application No.2 of 2013 1. R.Manoharan 2. V.Senthil Kumar 3. J.Hariharan .. Petitioners Versus 1. Government of Tamil Nadu, represented by its Secretary, Public Works Department, Fort St. George, Chennai-600 009. 2. Engineer-in-Chief (WRO) and Chief Engineer (General) Public Works Department, Chepauk, Chennai-600 005. .. Respondents Prayer: Review petition filed under order 47 Rule 1 of Civil Procedure Code read with Section 114 C.P.C., seeking to review the order dated 28.8.2012 passed in W.P.No.11898 of 2009. For Petitioners : Mr.M.Ravi For Respondents : Mr.R.Ravichandren, Additional Government Pleader O R D E R
This review application has been filed to review the order of this Court, dated 28.8.2012, made in W.P.No.11898 of 2009.
2. This Review Application has been filed stating, inter alia, that this Court had held that the names of the petitioners had not been considered for promotion, as Assistant Executive Engineers, for the year 2006-2007, as they did not possess the necessary qualification of minimum of 5 years of service as assistant engineers, as on 1.4.2006, which is the crucial date for such consideration.
3. It has been stated that the Government of Tamil Nadu had issued an amendment to the special rules for the Tamil Nadu Engineering Service, in G.O.Ms.No.1582, Public Works Department, dated 11.9.1985. In Rule 5, against the category `Assistant Executive Engineers, the method of promotion had been provided. The third proviso of the said rule reads as follows:
"Provided also that the Assistant Engineers appointed by recruitment by transfer from Junior Engineer in the Tamil Nadu Engineering Subordinate Service who acquire the required qualifications after joining service as Junior Engineers should have put in service for a period of not less than five years for appointment as Assistant Executive Engineers."
However, the said proviso had not been considered during the hearing of the writ petition. While the proviso to Rule 5 prescribes, merely, 5 years of service for the appointment as an Assistant Executive Engineer, there cannot be any impediment for including the names of the petitioners, in the panel for the year 2006-2007. As per the said proviso the stipulation of `five years on duty cannot be applied to the petitioners.
4. It has been further stated that one S.Murugesan, who was re-designated as an Assistant Engineer, retrospectively, from 2.4.1988, by a government order, in G.O.Ms.No.293, Public Works Department, dated 6.8.2002, has been included in the panel for promotion as an Assistant Executive Engineer, for the year 2005-2006, for which the crucial date was 1.4.2005, even prior to his completion of five years of service as Assistant Engineer on duty. Similarly, K.Sekar, R.Venkatachalam, K.Kailyamoorthy R.Selvam, K.Gurusamy, N.Gopalakrishnan, P.Sundaram, R.Jeyasekar and G.Gunaseelan, who had also been redesignated, had been included in the panel for the year 2006-2007, for which the crucial date was 1.4.2006, within four years of the orders of re-designation. Thus, it could be seen that the stipulation of `five years on duty has not been followed in respect of the said persons. There are certain other persons who had also been considered for promotion, even though they had not served five years on duty. As such there has been a violation of the principles enshrined in Article 14 and 16 of the Constitution of India. In such circumstances, this court may be pleased to review its order, dated 28.8.2012, made in W.P.No.11898 of 2009.
5. In the counter affidavit filed on behalf of the respondents it had been stated that, as per the Tamil Nadu Engineering Subordinate service Rules, the qualification required for the post of Junior Engineer is a Diploma in Engineering or a degree. It has been stated that as some of the appointments, as pointed out by the petitioner, had been found to be erroneous, such appointments are to be reconsidered. In fact the petitioners had not completed 5 years of service as on the crucial date, which is 1.4.2006, to be considered for promotion to the post of Assistant Executive Engineer, by being included in the panel of the year 2006-2007. The petitioners had not actually served for five years, in regular service, as Assistant Engineers, as on 1.4.2006, as per Rule 5(ii) of the Tamil Nadu Engineering Subordinate Service Rules. As the petitioners had been re-designated in the post of Assistant Engineers, retrospectively, with effect from 31.7.1997, 31.7.1997 and 2.8.1997, vide orders, dated 23.4.2008 and 30.10.2007, respectively, and as the petitioners have not completed five years of service in the post of Assistant Engineers, as per the Tamil Nadu Engineering Subordinate Service Rules, they were not qualified to be considered for promotion as Assistant Executive Engineers. Further, as per Rule 2(b) of the Special Rules for the Tamilnadu Engineering Service, promotion to the post of Assistant Executive Engineer, Public Works Department, shall be made on the grounds of merit and ability and seniority being considered only when merit and ability are approximately equal. Hence, the present review application is liable to be dismissed, as it is devoid of merits.
6. In view of the submissions made by the learned counsels appearing on behalf of the petitioners, as well as the respondents, and on a perusal of the records available, it had been noted that the names of the petitioners had not been included in the panel for promotion as Assistant Executive Engineers, for the year 2006-2007, as they were not qualified for the same, as per the Tamil Nadu Engineering Subordinate Service Rules. It is further noted that the petitioners had not put in five years of service on duty, as prescribed by the said rules. In such circumstances, this Court had passed an order, dated 28.8.2012, in W.P.Nos.11898 of 2009, dismissing the writ petition filed by the petitioners, in W.P.No.11898 of 2009. However, the petitioners have preferred the present review application stating that certain issues relating to the facts of the case and the rules applicable to them had not been considered by this court, in its order, dated 28.8.2012, made in W.P.No.11898 of 2009.
7. It is a settled position in law that the review jurisdiction of this Court is limited in nature, as held by the Supreme Court, in Inderchand Jain V. Motilal Jain (2009 AIR SCW 5364). However, in the present case the petitioners have not been in a position to establish that such conditions are prevailing in the present case. It is also to be noted that some of the issues raised by the petitioners in the present review application had not been raised, at the stage of the hearing of the writ petition, in W.P.No.11898 of 2009. It is clear that it would not be open to the petitioners to raise new grounds in the present review application, which had not been raised at the stage of the writ petition. As such, this Court is of the considered view that the present review application is not maintainable and therefore, it is liable to be dismissed. Hence, it is dismissed.
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