Madras High Court
The District Educational Officer vs Tmt.M.Tamilselvam on 27 January, 2022
Bench: M.Sundar, S.Ananthi
REV.APLC.(MD).No.127 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.01.2022
CORAM:
The Hon'ble Mr.JUSTICE M.SUNDAR
AND
The Hon'ble Mrs.JUSTICE S.ANANTHI
REV.APLC(MD).No.127 of 2021
and C.M.P(MD)No.9026 of 2021
1.The District Educational Officer,
Tirunelveli Educational District,
Tirunelveli- 627 001.
2.The Chief Educational Officer,
Tirunelveli – 627 009. ..Petitioner
Vs.
1.Tmt.M.Tamilselvam,
2.The Secretary,
M.D.T.Hindu College Higher Secondary School,
Tirunelveli – 627 001. ... Respondents
PRAYER: Review Application filed under Order XLVII Rule 1 & 2 r/w
Section 114 of C.P.C., to review the order passed in W.A.(MD)No.977 of
2020 dated 10.06.2021 and set aside the same.
1/20
https://www.mhc.tn.gov.in/judis
REV.APLC.(MD).No.127 of 2021
For Petitioners : Mr.R.Baskaran,
Additional Advocate General
assisted by Mr.S.P.Maharajan,
Special Government Pleader.
For Respondents : Mr.G.Thalaimutharasu for R1
Mr.R.T.Arivukumar for R2
ORDER
[Order of the Court was delivered by M.SUNDAR,J.] Captioned main review application has been filed seeking review of an order dated 10.06.2021 made by a Hon'ble Division Bench in W.A. (MD)No.977 of 2021 to which one of us (S.Ananthi, J.) was a party.
2. Captioned review application has been filed by the State (respondents before the learned Single Judge).
3. When the review was first listed before this Special Bench (by orders of Hon'ble Judge on the administrative side owing to one of the Hon'ble Judges, who made the original order of the Division Bench 2/20 https://www.mhc.tn.gov.in/judis REV.APLC.(MD).No.127 of 2021 being transferred) we issued limited notice. This was on 13.12.2021 and the proceedings read as follows.
'In the captioned matter, an order dated 10.05.2013 qua appointment as a Graduate Teacher [Mathematics] was called in question.
2.Learned Additional Advocate General
Mr.R.Baskaran, appearing on behalf of
Mr.S.P.Maharajan, learned Special Government Pleader submits that the writ petition filed by the Teacher was allowed by a Hon'ble Single Judge in and by an order dated 30.01.2020. This was carried in appeal by the State by way of intra Court appeal vide W.A.(MD)No.977 of 2020 and the writ appeal was disposed of sustaining the quashing of 10.05.2013 order but for different reasons. Adverting to the order that is sought to be reviewed, learned Additional Advocate General submitted that after the appointment on 10.08.2009, the authorities have issued deployment order dated 16.11.2009 but without approving the appointment. According to learned State Counsel this is an error apparent on the face of the record in the light of Ground (d) that has been urged in the memorandum of grounds of writ appeal which reads as follows:
'd. The Honourable Court ought to have 3/20 https://www.mhc.tn.gov.in/judis REV.APLC.(MD).No.127 of 2021 seen that after the appointment on 10.08.2009 the authorities have issued deployment order dated 16.11.2009 thereby deploying to S.N.R. Higher Secondary School, Gomathipuram, Sankarankovil, but without approving the appointment. The writ petitioner has not obeyed the order and has not joined in the deployed place. In such circumstances the writ petitioner cannot equity'
3.The above point is articulated in Ground (h) of captioned review petition which reads as follows:
'h. The Honourable Court ought to have seen that after the appointment on 10.08.2009 the authorities have issued deployment order dated 16.11.2009 thereby deploying to S.N.R. Higher Secondary School, Gomathipuram, Sankarankovil, but without approving the appointment. The writ petitioner has not obeyed the order and has not joined in the deployed place. In such circumstances the writ petitioner cannot equity'
4.In the light of narrative thus far, prima facie case made out qua aforementioned point. Issue limited notice on aforementioned point alone for the present. Notice returnable by a week. Learned Government Pleader is permitted to serve on the Counsel who appeared for the two respondents before Hon'ble Division Bench vide 10.06.2021 order. After service is complete Registry to show the names of Counsel for respondents in the next listing.
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5.List before this Bench on 20.12.2021 at 2.15 p.m.'
4. Thereafter, notice was served on the writ petitioner as well as the 'third respondent in the writ petition' (hereinafter 'said school' for the sake of convenience and clarity).
5. Post completion of service and post counsel entering appearance, with the consent of both sides main review application was heard out.
6. Mr.R.Baskaran, learned Additional Advocate General appearing on behalf of the Special Government Pleader Mr.S.P.Maharajan, Mr.G.Thalaimutharasu, learned counsel for writ petitioner and Mr.R.T.Arivukumar learned counsel for the said school are before us in this virtual Court.
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7. Short facts shorn of elaboration i.e., shorn of particulars that are not necessary or imperative for appreciating this order will suffice. Short facts are that the petitioner who has B.Sc. Degree., M.Sc Post Graduate Degree besides a B.Ed. Degree was appointed as Graduate Teacher (Mathematics) in said school through District Employment Exchange, Tirunelveli in and by proceedings dated 08.08.2009 made by said school; that said school is a private school and there is no disputation or disagreement that it is an aided non-minority school; that the immediate trigger qua the writ petition is proceedings dated 10.05.2013 made by the District Educational Officer, Triunelveli, wherein it was held that with regard to 2009-10 academic year, there is no provision for resuscitating the permission and on that basis, the writ petitioner's position was sought to be dislodged; writ petitioner assailed this 10.05.2013 order made by the 'District Educational Officer, Tirunelveli' (hereinafter 'said DEO' for convenience and clarity) and also sought for a mandamus to approve her appointment as Graduate Teacher (Mathematics) with retrospective effect on and from the date of initial appointment on 10.08.2009; that a Hon'ble Single Judge heard out the matter fully and after full contest i.e., after 6/20 https://www.mhc.tn.gov.in/judis REV.APLC.(MD).No.127 of 2021 hearing both sides, allowed the writ petition in and by an order dated 30.01.2020; that this means that the prayer of the writ petitioner was acceded to by the Hon'ble Single Judge; that State carried the matter in appeal by way of an intra Court appeal vide W.A.(MD)No.977 of 2020, State contended that there was surplus and academic year 2009-10 cannot be resuscitated; that the Hon'ble Division Bench noticed that Hon'ble Single Judge has proceeded on the basis that for filling up vacancy qua said School which has arisen in a sanctioned post, no prior permission is required; that on noticing this view taken by the Hon'ble Single Judge, Hon'ble Division Bench made it clear that said school is an aided but non-minority school and therefore, permission of the department is required; that this point was made clear but the impugned order of said DEO was examined on merits (other points) and the Division Bench found that in the impugned order, deploying the writ petitioner on the ground that the post has become surplus which was made on 16.11.2009 was cancelled by proceedings dated 24.04.2010 permitting said school to continue the three teachers; that Hon'ble Division Bench took the view that this would enure to the benefit of the 7/20 https://www.mhc.tn.gov.in/judis REV.APLC.(MD).No.127 of 2021 writ petitioner also and on that basis, the writ appeal came to be disposed of confirming the order of Hon'ble Single Judge; that thereafter the captioned review application has been filed by State; that as would be evident from the limited notice, the primary contention is writ petitioner, post appointment in 2009 did not join as per the deployment order and therefore, is not entitled to equity.
8. The primary submission in the review i.e., the point regarding deployment has been raised as ground (d) before the Hon'ble Division Bench but the same has not been considered by the Hon'ble Division Bench. As would be evident from our proceedings issuing limited notice it will be clear that this argument was the basis on which limited notice came to be issued.
9. In response to the aforementioned pointed argument of the learned Additional Advocate General, learned counsel for the writ petitioner submitted that the impugned order should stand or fall on the basis of its contents and it cannot be improved, improvised or developed 8/20 https://www.mhc.tn.gov.in/judis REV.APLC.(MD).No.127 of 2021 by way of a counter affidavit. Learned counsel also pointed out one other important factor i.e., that the writ petitioner has been working without salary all these years i.e, for well over a decade. In support of the contention that the impugned order cannot be improved by way of counter affidavit, learned counsel placed reliance on the oft quoted judgment of Hon'ble Supreme Court i.e., Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others reported in AIR 1978 Supreme Court 851. Interestingly in Mohinder Singh Gill case, a Constitution Bench relied on observations made by Bose, J. (as His Lordship then was) in Cordhandas Bhanji case and the relevant paragraph in Mohinder Singh Gill case reads as follows:
'The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginnings may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC
16) (at p.18).9/20
https://www.mhc.tn.gov.in/judis REV.APLC.(MD).No.127 of 2021 “Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language need in the order itself”.
Orders are not like old wine becoming better as they grow older.'
10. Learned Additional Advocate General, pointed out that it is quite possible that the said school would have paid remuneration to the writ petitioner from and out of its own funds. Therefore, we had requested the learned counsel for said school to get instructions and revert to this Court. This is captured in the proceedings made in previous proceedings on 20.01.2022, which reads as follows:
'Read this in conjunction with and in continuation of earlier proceedings made in previous listings on 10.01.2022 and 12.01.2022.
2. Today Mr.G.Thalaimutharasu, learned counsel for first respondent made submissions in response to the review grounds, more particularly, adverting to 10/20 https://www.mhc.tn.gov.in/judis REV.APLC.(MD).No.127 of 2021 proceedings dated 13.12.2021 in and by which limited notice was issued in the Review Application.
Mr.R.Baskaran, learned Additional Advocate General appearing on behalf of Government Pleader, Mr.S.P.Maharajan and Mr.R.T.Arivukumar, learned counsel appearing on behalf of second respondent-School were also before this virtual Court.
3. The question as to whether first respondent was paid remuneration by second respondent school came up and second respondent counsel sought time to get instructions and revert to this Court on this.
4. For continuation of hearing list captioned matter in this Special Bench at 03:00 PM on 27.01.2022. '
11. Mr.R.T.Arivukumar, learned counsel for said school submits that he has since got instructions and the instructions are that no remuneration has been paid to the writ petitioner by the said school. This means that writ petitioner has been working for well over a decade without remuneration. To be noted, this submission is captured only for the purpose of comprehensively setting out the hearing details as it unfurled before us.
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12. The narrative thus far captures the factual matrix, the trajectory the matter has taken and the bone of contention before the Single Judge as well as before the Hon'ble Division Bench. This Court having done that now proceeds to examine the grounds for review. Review has been filed by State under Order XLVII Rules 1 and 2 of the 'Civil Procedure Code, 1908' ('CPC') read with Section 114 of CPC. This order XLVII Rule 1 of CPC has been made applicable to writ proceedings in this Court in and by Rule 29(1) of the Madras High Court Writ Rules, 2021, which reads as follows:
'29. Review:
(1) The Court may review its orders but no petition for review will be entertained except on the grounds mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure, 1908.' We are conscious that order sought to be reviewed is one made in a intra Court appeal qua Clause 15 of Letters Patent but aforementioned Rule is mentioned as the matter primarliy arises out of a writ petition.12/20
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13. Section 114 of CPC reads as follows:
'114. Review.
Subject as aforesaid, any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.'
14. This takes us to the three grounds available for a review. The three grounds put in simple terms are i) discovery of new documents or facts which could not be brought to the notice of this Court in spite of diligent effort, ii) a mistake or error apparent on the face of the record and iii) any other sufficient reason. The first ground is nobody's case in the case on hand. As far as the second ground is concerned what needs to be tested is whether there is a mistake or error apparent on the face of 13/20 https://www.mhc.tn.gov.in/judis REV.APLC.(MD).No.127 of 2021 record. In this regard, this Court reminds itself that the expression 'error apparent on the face of the record' has been explained in a long line of authorities i.e., a catena of cases and one of the lead cases in which the expression was explained is Anantha Reddy case [N.Anantha Reddy Vs. Anshu Kathuria and others] reported in (2013) 15 Supreme Court cases 534. Suffice to say that error apparent on the face of the record is an error which can be detected without applying an inferential process. This Court has repeatedly held that whenever an inferential process is required to detect an error, the same would not qualify as an error apparent on the face of the record. To put it differently, if an error is so obvious and so patent that no inferential process is required to detect the error, the same qualifies as an error apparent on the face of the record. This takes us to the third ground of review qua Order XLVII Rule 1 of CPC which is more in the nature of residuary ground as it says any other sufficient reason. The third ground i.e., any other sufficient reason has also been elucidatively explained by the Courts repeatedly and the lead judgment in this regard is the oft quoted Sandur Manganese case [Union of India v. Sandur Manganese and Iron Ores Ltd.,] reported in 14/20 https://www.mhc.tn.gov.in/judis REV.APLC.(MD).No.127 of 2021 (2013) 8 SCC 337. In Sandur Manganese case, Hon'ble Supreme Court made it clear that the expression 'any other sufficient reason' should be analogous to those specified in the rule.
15. Having set out the scope of review, we now revert to the discussion and dispositive reasoning in this review to the case on hand. In the case on hand, the impugned order proceeds on the basis of surplus and it says that the request qua 2008-09 academic year cannot be resuscitated. There is no mention on the issue of deployment. The deployment issue has been raised for the first time by way of memorandum of grounds of appeal before the Division Bench. The argument that the appeal is a continuation of the original proceedings and therefore the same being raised in the appeal should be construed as a ground that was raised before the Hon'ble Single Judge does not impress us. The reason is, the issue that is being examined is whether the impugned order cannot be improvised / improved by way of a counter affidavit. Therefore, the stand taken by the State qua impugned order cannot be improved the counter affidavit. In any event it is not 15/20 https://www.mhc.tn.gov.in/judis REV.APLC.(MD).No.127 of 2021 necessary to go into this aspect of the mater in the light of paragraph 6 of the order of the Hon'ble Division Bench, which reads as follows:
'6. The Election Commission by proceedings dated 27.03.2009 granted permission to issue the order of appointment for six B.T. Assistants which includes the first respondent. It is thereafter after following the due procedure and calling for fresh list from the employment exchange, issuing paper publication, the second respondent school issued an order of appointment to the first respondent dated 05.08.2009. The first respondent joined duty on 10.08.2009.
Thus the order of appointment was issued during the Academic year 2009-2010. Therefore, the second respondent Management requested the appellant Department to modify the approval order dated 12.11.2008 by granting approval for the academic year 2009-2010 instead of 2008-2009. This was rejected on the ground that for the academic year 2009-2010, there were three surplus posts including the post held by the first respondent. One important fact, which has not been mentioned in the order dated 10.05.2013 is that the order deploying the first respondent on the ground that of the post has become surplus, which was passed on 16.11.2009 was cancelled by the Chief Educational Officer, Tirunelveli, by proceedings dated 24.04.2010, permitting the second respondent Institution to continue the three teachers including the first respondent in the very same school. In such 16/20 https://www.mhc.tn.gov.in/judis REV.APLC.(MD).No.127 of 2021 circumstances, the reasons assigned by the first appellant for rejecting the approval cannot be sustained. Furthermore, it is stated in the order dated 10.05.2013 that two posts are have been declared as surplus during the academic years 2010-2011, 2011-2012. However, that cannot be a reason for refusing an approval, because the issue was whether the appointment made during the academic year 2009-2010 could have been approved or not and whether the prayer made by the management for making a correction in the approval order is justified or not. Therefore, the first respondent cannot invent other reasons for rejecting the approval of the appointment of the appellants made on 05.08.2009 by citing a reason that in the next two academic years, there were one post surplus for each year. Thus, We are of the considered view that the order passed by the first appellant dated 10.05.2013 is solely unsustainable and the first appellant has taken a hyper- technical view which cannot be appreciated, especially, the second respondent Institution has followed proper procedure and made the order of appointment. '
16. The aforementioned paragraph clinchingly decides the issue with clarity. Therefore, we are unable to persuade ourselves to believe that there is any error apparent on the face of record or for that matter 17/20 https://www.mhc.tn.gov.in/judis REV.APLC.(MD).No.127 of 2021 any other sufficient reason analogous to the same which warrants interference in review jurisdiction in which we are now sitting.
17. As already alluded to supra, observation of the Hon'ble Single Judge that permission is not necessary has been neutralized and it has been made clear by the Hon'ble Division Bench that said school is an aided but non-minority school and therefore permission is mandatory. This draws the curtains on matter on hand as an error which has the trappings of an error apparent on the face of record in learned Single Judge's order has been eliminated by Hon'ble Division Bench.
18. The other argument is the Hon'ble Division Bench ought not to have made the 24.04.2010 proceedings of the Chief Educational Officer, Tirunelveli applicable to the writ petitioner also as captured in paragraph
6. This is a view taken by the Hon'ble Division Bench. If the State is aggrieved by such a view that by itself cannot become a ground for a review. The sequitur is, there is no ground for review and it follows that the captioned review application cannot but be dismissed. 18/20 https://www.mhc.tn.gov.in/judis REV.APLC.(MD).No.127 of 2021
19. Ergo, captioned review application is dismissed. Consequently, captioned CMP is also dismissed. There shall be no order as to costs.
(M.S., J.) (S.A.I., J.)
27.01.2022
Index : Yes/No
Internet : Yes/No
vsm
Note : In view of the present
lock down owing to COVID-19
pandemic, a web copy of the
order may be utilized for official
purposes, but, ensuring that the
copy of the order that is
presented is the correct copy,
shall be the responsibility of the
advocate/litigant concerned.
19/20
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REV.APLC.(MD).No.127 of 2021
M.SUNDAR, J.
and
S.ANANTHI, J.
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REV.APLC(MD)No.127 of 2021
and C.M.P(MD)No.9026 of 2021
27.01.2022
20/20
https://www.mhc.tn.gov.in/judis