Madras High Court
The Secretary To Government vs A.Maria Selvam on 21 July, 2015
Bench: S.Manikumar, G.Chockalingam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated:21.07.2015
CORAM
THE HON'BLE Mr.JUSTICE S.MANIKUMAR
and
THE HON'BLE Mr.JUSTICE G.CHOCKALINGAM
W.A.(MD)Nos.888 of 2014
W.A.(MD)Nos.888 to 891, 690, 1049 to 1051 and 1189 to 1191 of 2014, 84, 201,
216, 217, 786 to 790 of 2015 and 1104 of 2013 and Rev.A.(MD)Nos.98 and 99 of
2015
and
M.P.(MD)Nos.1 and 2 o 2013 in W.A.(MD)No.1104 of 2013, 1 of 2014 in
W.A.(MD)Nos.888 to 891, 1049 to 1051 and 1189 to 1191 of 2014, 1 of 2015 in
81, 201, 216, 217, 690 and 786 to 790 of 2015 and Rev.A.(MD)Nos.98 and 99 of
2015 and 2 of 2014 in W.A.(MD)Nos.889 to 891, 1050 and 1051 of 2014, 216 and
787 of 2015
W.A.(MD)No.888 of 2014:
1.The Secretary to Government,
Education Department,
Stte of Tamil Nadu,
Fort St.George, Chennai-9.
2.The Director of School Education,
College Road, Chennai-6.
3.The District Educational Officer,
Tirunelveli. ... Appellants/
Respondents 1 to 3
vs.
1.A.Maria Selvam ... Respondent-1/
Writ Petitioner
2.The Correspondent,
Mary Sargent Hr.Sec.School for Girls,
Palayamkottai, Thirunelveli. ... Respondent-2/
Respondent-4
Writ Appeal under Clause 15 of the Letters Patent, against the
order of the learned Single Judge, dated 28.04.2014, made in W.P.(MD)no.6542
of 2014.
Appearance
Counsel Name Case No.
!Mr.V.R.Shanmuganathan, Appellants in all the WAs and Petitioners
Special Govt.Pleader. in Rev.Appns.
^Mr.T.Palanisamy Respondent-1 in W.A.(MD)Nos.888 to 891 and 1049
to 1051 of 2014 and 786 of 2015
Mr.S.Chellapandian RR-2 & 3 in WA(MD)Nos.1049 & 1051 of 2014, RR-2
to 4 in WA(MD)No.1050 of 2014,R-2 in W.A.(MD)No.
84/2015, R-2 in W.A.(MD)No.201/2015, R-1 in
W.A.(MD)No.1104/2013, R-2 in WA(MD)Nos.786 to.
788/2015
Mr.T.A.Ebenezer Respondent-1 in WA(MD)Nos.690 and 1189 to 1191
of 2014, 788 and 790 of 2015 Mr.G.Marimuthu
Respondent-1 in W.A.(MD)No.84/2015
Mr.Isaac Mohanlal R-1 in W.A.(MD)Nos.216 & 217 & 789 of 2015 &
Respondents in Rev.A.(MD)Nos.98 & 99 of 2015
:COMMON JUDGMENT
(Judgment of the Court was delivered by S.MANIKUMAR,J) Since the issue involved in all these writ appeals and review applications is one and the same, they are heard together and disposed of by this common judgment.
2.The common issue involved in all these writ appeals and the review applications is with regard to the approval of the appointments of the contesting respondents/writ petitioners, who are all working in government aided private schools as non-teaching staff.
3.Necessary facts required for the disposal of these writ appeals and review applications are as follows:
(a)The contesting respondents/writ petitioners are all working as non-teaching staffs such as Junior Assistants, Record Clerks, Office Assistants, Sweeper, Gardener, Waterman, watchman, etc., in Government aided private schools. They were all appointed/promoted against the vacancies arose due to retirement. When proposals relating to their appointment were sent to the concerned educational authorities for approval, they were returned by the authorities on the ground that the ban imposed by the Government for filling up of vacant posts has not been lifted in respect of non-teaching staff and therefore their appointments could not be approved.
Challenging the rejection of their requests for approval, those who were appointed as non-teaching staff have filed writ petitions before this Court.
(b)Such writ petitions were allowed by the writ court, following earlier orders passed in similar writ petitions/writ appeals. Orders passed in one batch of writ petitions in W.P.(MD)Nos.6542 and 6544 of 2014, dated 28.04.2014, against which Writ Appeal (MD) Nos.888 to 891 of 2014 have been preferred, read as under:
"In all these writ petitions, the petitioners are aggrieved against the order passed in refusing to approve the appointment in their respective non- teaching post by relevant on a letter dated 26.05.2006, issued by the Government.
2.The learned counsel appearing for the petitioners submits that the issue involved in this case is squarely covered by the decision made in W.P.No.5178 of 2007, dated 01.08.2012, wherein the learned Single Judge has discussed the very same Government letter dated 26.05.2006 and found that the said order was already quashed by this Court by various proceedings.
3.The learned Additional Government Pleader appearing for the respondents 1 to 3, is not disputing the said fact.
4.On perusal of the order passed by the learned Single Judge in W.P.(MD).No.5178 of 2007, dated 01.08.2012, it is seen that the reasons stated in the impugned order in these writ petitions cannot be sustained in any manner. The relevant paragraph Nos.8 to 15 of the above said order is extracted here-under:
"8. The fourth respondent called for an application through the tamil newspaper "Daily Thanthi" on 17/3/2004 to fill up the vacancy of watchman that arose due to the retirement of one Ramasamy. The petitioner applied for the same and he was selected and appointed by the fourth respondent on 11/6/2004.
9. The fourth respondent sent proposals for approval of the appointment to the third respondent and the same was returned by the impugned order dated 5/1/2007 of the third respondent.
10. The respondents have filed a counter affidavit and it is stated therein that the third respondent returned proposals in view of G.O.Ms.No.212 P & AR Department, dated 29/8/2011 imposing a ban on recruitment.
11. Already this Court has held in the order dated 6/3/2009 in W.P.No.1722 of 2009 that G.O.Ms.No.212 (Personnel and Administrative Reforms
- P) dated 29/11/2001 imposing ban on recruitment could not be applied to the aided Schools, which is governed by the Tamil Nadu Private Schools (Regulation) Act. Paragraph 12 of the said order is extracted in this regard:-
"No doubt G.O.Ms.No.212 (Personnel and Administrative Reforms [P] Department dated 29/11/2001, a ban has been imposed for appointment. However, the said ban would relate only to Government employments and it has not relevance to the appointments made by the private Schools. Further the ban imposed in the said Government order had been cancelled by the subsequent Government Order namely G.O.Ms.No.14 (Personnel and Administrative Reforms (P) Department) dated 7/2/2006. Further more, G.O.Ms.No.115, School Education (D 2) Department, dated 30/5/2007 does not prohibit the filling up of Lab Assistants in private Schools. Perhaps the second respondent is under the misconception that G.O.Ms.Nos.212 and 115 prohibit the appointment in private Schools."
12. The appeal preferred against the said order in W.A.No.267 of 2009 was rejected on 12/8/2009.
13. Hence, the reason given by the third respondent for returning the proposal cannot be sustained.
14. Likewise, the reliance placed on G.O.Ms.No.115 in the counter affidavit cannot also be sustained, since G.O.Ms.No.115 was issued very much later to the appointment of the petitioner. Hence the G.O., could not be applied to the case of the petitioner. The Government letter dated 25/5/2006 and the consequential letter dated 21/8/2006 of the Director of School Education stating that the vacancies of non-teaching post in aided School shall not be filled up were quashed by this Court by various writ proceedings. I have followed those judgment in my order dated 17/7/2012 made in W.P.(MD) No.1410 of 2007.
15. For the aforesaid reasons, this writ petition is allowed and the impugned order is quashed. The third respondent is directed to approve the appointment of the petitioner as watchman from the date of his appointment and to pay all monetary benefits. The said exercise has to be carried out within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, the connected Miscellaneous Petitions are closed."
5.Considering the fact that the issue involved in these cases squarely covered by the above said decisions made in W.P.(MD).No.5178 of 2007 dated 01.08.2012, all these writ petitions are allowed and the impugned orders are set aside and consequently, the third respondent is directed to approve the appointment of the respective petitioners and to disburse all service monitory benefits to them from the date of their appointment and pass the said order within a period of twelve weeks from the date of receipt of a copy of this order. No costs."
4.Aggrieved by the orders, allowing the writ petitions and directing the authorities to approve the appointments of the writ petitioners from the date of lifting of the ban, the present appeals have been filed by the State and its authorities.
5.Service particulars of the writ petitioners, as given by the learned Special Government Pleader, are tabulated as under:
Si. No Writ Petition Number Writ Appeal Number Petitioner Name Appointed As & Date of Appointment Rejected By & Date of Rejection Transfer / Promotion if any
1. 6542 of 2014 888 of 2014 A.Mariaselvam Record Clerk & 17-07-2013 DEO, Tirunelveli & 11-09-2013 Nil
2. 6543 of 2014 889 of 2014 I.Devadoss Lab Assistant & 17-07-2013 DEO, Tirunelveli & 11-09-2013 Nil
3. 6544 of 2014 890 of 2014 S.Rajkumar Office Assistant & 10-09-2013 DEO, Tirunelveli & 11-09-2013 Nil
4. 6546 of 2014 891 of 2014 D.Sathis Record Clerk & 17-07-2013 DEO, Tirunelveli & 11-09-2013 Nil
5.
8771 of 2014 1049 of 2014 David Devasagayam Office Assistant & 16-08-1988 DEO, Tirunelveli & 30-01-2014 Transferred as Office Assistant on 01-07-2013
6. 8872 of 2014 1050 of 2014 C.Vasanthi Office Assistant & 26-06-2001 DEO, Tirunelveli & 09-12-2013 Promoted as Record Clerk on 20-09-2006 Promoted as Lab Assistant on 08-06-2010 Transfer as Lab Assistant on 10-07-2013
7. 3159 of 2014 1051 of 2014 S.J.Joseph Raj Waterman & 27-07-2007 DEO, Tirunelveli & 21-11-2013 Transfer as Waterman on 17-07-2013
8. 12049 of 2012 1189 of 2014 T.Jones Lab Assistant & 05-01-2011 DEO, Tuticorin & 12-03-2012 Nil
9. 12050 of 2012 1190 of 2014 A.Andrews Lab Assistant & 05-01-2011 DEO, Tuticorin & 12-03-2012 Nil 10 12051 of 2012 1191 of 2014 K.Rajesh Solomon Lab Assistant & 05-01-2011 DEO, Tuticorin & 12-03-2012 Nil 11 5894 of 2014 84 of 2015 S.Samuel Lab Assistant & 11-10-2013 DEO, Tirunelveli & 04-02-2014 Nil 12 13907 of 2014 201 of 2015 Drawin Record Clerk & 24-10-1984 DEO, Tirunelveli & 05-11-2014 Promoted as Lab Assistant on 1988 Promoted as Junior Assistant on 2000 Transfer as Junior Assistant on 18-03-2011 13 4668 of 2013 216 of 2015 S.U.M. Higher Secondary School ? For K.Manoharen Rex Junior Assistant & 20-09-2010 DEO, Uthamapalayam, Theni & 29-07-2011 Nil 14 4669 of 2013 217 of 2015 S.U.M. Higher Secondary School ? For S.Manikandan Record Clerk & 01-07-2010 DEO, Uthamapalayam, Theni & 29-07-2011 Nil 15 4244 of 2013 690 of 2014 Nehru Vidhayala Higher Secondary School ? For G.Vimaladevi Junior Assistant & 02-05-2013 DEO, Melur & 29-08-2013 Nil 16 7670 of 2014 W.A.(MD). No. 787 of 2015 Mosalin Sudharason Record Clerk & w.e.f. 02-11-2011 DEO, Kuzhithurai & 12-06-2012 Nil 17 19308 of 2013 W.A.(MD). No. 788 of 2015 Paul Vincent Scavenger & 07-03-2006 Mandamus to approve DEO, Tirunelveli Nil 18 7209 of 2014 W.A.(MD). No. 789 of 2015 St. Joseph Higher Secondary School For ? Lawrence Junior Assistant & 02-05-2013 DEO, Thuckalay & 12-03-2011 Nil 19 6858 of 2010 W.A.(MD). No. 790 of 2015 Kumaresan Night Shift Watchman & 04-06-2002 DEO, Cheranmadevi & 31-05-2006 Nil 20 1744 of 2009 Rev. No. 99 of 2015 In W.A.(MD). No. 349 of 2010 St. Lawrence Higher Secondary School ? For A.Vimala Mary Record Clerk & 09-06-2008 DEO, Thuckalay & 17-01-2009 Nil 21 1718 of 2009 Rev. No. 98 of 2015 In W.A.(MD). No. 36 of 2010 St. Francis Xavier Higher Secondary School ? For A.Michael Jhon Watchman & 01-07-2007 DEO, Thuckalay & 15-07-2008 Nil 22 14498 of 2012 1104 of 2012 R.Subdaraj Sweeper Cum Gardener & 07-06-2006 Mandamus to approve ? DEO, Tirunelveli Nil 23 17058 of 2014 W.A.(MD). No. 786 of S. Immanuel Giftson Librarian 10-01-2014
6.Inter alia, the following are the grounds raised by the appellants in assailing the orders passed in the writ petitions.
(i)As per G.O.Ms.No.49, P & AR Department, dated 14.05.2002, Group 'D' Category Posts, such as Sweeper, Scavenger, Cleaner, Gardener, Office Assistants, etc., have to be outsourced and entrusted on contract basis and therefore the appointment of writ petitioners, during the ban period, on regular time scale of pay, is in violation of the guidelines issued in the above Government Order and this aspect has not been considered by this Court.
(ii)When proposals were received from the Aided Private Schools to approve appointments of non-teaching staff made during the ban period, the authorities concerned sought clarification from the Director of School Education and in response, the Director of School Education, by letter dated 26.05.2006, has clarified that until further orders, necessity to lift the ban for recruiting non-teaching staff does not arise and hence the appointment of writ petitioners during ban period, that too in regular time scale, is in violation of G.O.Ms.No.49, P & AR Department, dated 14.05.2002. This aspect also has not been considered and discussed in the earlier decisions.
(iii)After lifting the general ban issued vide G.O.Ms.No.212, Personnel and Administrative Reforms Department, dated 29.11.2001, vide G.O.Ms.No.14, P & A.R.Department, dated 07.02.2006, G.O.Ms.No.91, P & A.R.Department, dated 06.07.2006, came to be issued to the effect that all estimated vacancies for all categories of recruitment should be placed before the Staff Committee and the guidelines issued in G.O.Ms.No.49, Personnel and Administrative Department, dated 14.05.2002, are to be followed. Therefore, the appointments made during the ban period and even after ban period, without following the guidelines issued in G.O.Ms.No.49, Personnel and Administrative Department, dated 14.05.2002, are not to be approved and this aspect has not been dealt with in the earlier orders, which were followed in subsequent orders.
(iv)Vide G.O.Ms.No.37, School Education (R2) Department, dated 08.02.2007, permission was granted to fill up various categories of non- teaching staff to the extent of numbers mentioned therein and beyond that, ban continued in respect of all other categories and this aspect has not been considered in the earlier decisions.
(v)In G.O.Ms.No.115, School Education (D2) Department, dated 30.05.2007, again permission to fill up non teaching staff was given, pointing out what are the posts and how many posts could be filled up and which posts should not be filled up and which posts to be filled up by outsourcing method, etc. As in these cases, appointments were made in violation of this Government Order, those appointments cannot be approved.
7.Therefore, it is contended by the learned Special Government Pleader that the judgments relied on by the learned Single Judges cannot be applied to these cases. Further, in some cases, orders have been passed without giving an opportunity to the appellant/respondents to file their counters touching upon all the Government Orders in this regard. The review applications have also been filed raising the same grounds.
8.Per contra, learned counsel for the respondents/writ petitioners contended, inter alia, that the issue involved is no more res integra, as more than one Division Benches of this Court have considered and discussed about the applicability of G.O.Ms.No.91, P & A.R.Department, dated 06.07.2006, G.O.Ms.No.37, School Education (R2) Department, dated 08.02.2007 and G.O.Ms.No.115, School Education (D2) Department, dated 30.05.2007, in approving the appointment of non-teaching staff in aided private schools and held that they are not applicable to the non-teaching staff working in private aided schools. It is also contended that as per Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, prior approval of educational authorities need not be obtained in appointing non-teaching staff and further any regular sanctioned posts should be filled only with regular appointment and not by any other method, namely outsourcing or on contract basis and hence those Government Orders are not applicable to the facts of the present cases. They further submitted that the writ petitions were allowed by the learned Single Judges, by following the decisions of Hon'ble Division Benches of this Court on this issue and therefore the writ appeals and review applications are liable to be dismissed.
9.It is the further contention of the respondents/writ petitioners that pursuant to the orders passed by this Court, the Government have implemented the orders of this Court by issuing separate Government Orders in respect of similarly placed persons and therefore the acts of the appellants in not approving the appointment of the respondents/writ petitioners would amount to violation of Articles 14 and 16 of the Constitution of India.
10.Before venturing to consider the rival submissions, it is necessary to extract the relevant Government Orders issued touching upon the issues involved. The origin of this issue is from G.O.Ms.No.212, P & AR (P) Department, dated 29.11.2001, wherein the Government issued a complete ban order for filling up of vacant posts, except in certain categories of posts, which reads as under:
"GOVERNMENT OF TAMIL NADU Abstract Public Services - Filling up of vacant posts except certain categories of posts such as Teachers, Doctors and Police Constabulary completely banned
- orders issued.
PERSONNEL AND ADMINISTRATIVE REFORMS (P) DEPARTMENT G.O.(Ms) No.212 Dated: 29.11.2001 ORDER:
The Government have decided to effect economy in expenditure and accordingly direct that filling up of vacant posts shall be completely banned except certain categories of posts such as Teachers, Doctors and Police Constabulary which may be certified and declared as essential posts. Proposals for filling vacant posts considered essentially by and Department will be placed before a Committee consisting of Chief Secretary, Finance Secretary and Secretary (Personnel and Administrative Reforms).
(By order of the Governor) P.SHANKAR Chief Secretary to Government"
11.While the ban imposed by the above said Government Order is in force, the Government issued G.O.Ms.No. 49, P & AR (F) Department, dated 14.05.2002, about outsourcing of services of certain employees in Government Departments , which reads as under:
"GOVERNMENT OF TAMIL NADU Abstract The Staff and Expenditure Reforms Commission ? Recommendation on ?outsourcing of Services of certain employees in Government Departments Orders ? Issued.
PERSONNEL AND ADMINISTRATIVE REFORMS (P) DEPARTMENT G.O.(Ms) No.49 Dated: 14.05.2002 G.O.Ms.No.467, Finance (CMPC) Department, dated 26.11.2001 ORDER:
The expenditure on salaries, allowances, and administrative expenses have grown enormously in the recent past, and have posed considerable burden on the finances of the State Government. The Government have therefore constituted the Staff and Expenditure Reforms Commission to examine the scope for curtailing avoidable expenditure in administration. The Commission has submitted an interim report to Government. One of the recommendations of the Commission relates to outsourcing of services like sweeping, scavenging, cleaning, watch and ward, etc., The Commission has recommended that the work of all Group ?D?category staff like Sweeper, Scavenger, Cleaner, Gardener, Office Assistant, etc., may be progressively outsourced and entrusted on contract basis.
2. The Government have examined the above recommendation of the Staff and Expenditure Reforms Commission and have decided to accept the same with a minor modification.
3. The Government accordingly direct that the work of all Group ?D?
categories like Sweeper, Scavenger, Cleaner and Gardener shall be progressively outsourced and entrusted on contract basis. The Public Department in Secretariat, the Heads of Department and the District Collectors are entrusted with the responsibility of finalising the tenders for engaging one or more Agencies to cater to the requirements of various offices in defined area. This order is however, not applicable to the post of Office Assistant. While outsourcing the services ordered above a condition may imposed in the tender to ensure that the existing NMR/Consolidated Wage/Daily Wage employees are to be given preference in employment by the Constructor to protect the interests of such persons.
4. This order issues with the concurrence of the Finance Department, vide its U.O.No.1466/FS/P/2002, dated 26.04.2002. (By order of the Governor) P.SHANKAR Chief Secretary to Government"
12.While so, the ban imposed in G.O.Ms.No.212, P & AR (P) Department, dated 29.11.2001, came to be lifted by way of issuing G.O.Ms.No.14, P & AR (P) Department, dated 29.11.2001, which reads as under:
"GOVERNMENT OF TAMIL NADU Abstract Public Services - Ban of filling up of vacant posts by direct recruitment except certain categories of posts such as Doctors, teachers and Police Constabulary Lifting of ban - orders issued.
PERSONNEL AND ADMINISTRATIVE REFORMS (P) DEPARTMENT G.O.(Ms) No. 14 Dated: 07.02.2006 Read:
G.O. (Ms) No. 212, Personnel and Administrative reforms (P) Department, dated 29.11.2001.
ORDER:
The Government have issued orders completely banning the filling up of vacant posts by direct recruitment except in respect of certain categories of posts such as Teachers, Doctors and Police Constabulary, considered essential vide the Government orders read above.
2. The Government after careful consideration have decided to lift the ban order for filling up of posts by direct recruitment.
3. The Government accordingly direct that the ban on filing up of posts by direct recruitment issued in the Government Order cited be lifted with immediate effect. The orders in G.O.Ms.No.212, Personnel and Administrative Reforms (P) Department, dated 29.11.2001 are cancelled.
(By order of the Governor) N. NARAYANAN Chief Secretary to Government"
13.Thereafter, the Secretary to Government, School Education Department, has addressed a letter in No.11462 D2 06-1, dated 26.05.2006, to the Director of School Education, in reply to the letter of the Director of School Education in Na.Ka.No.30072D1(4), 06, dated 11.04.2006, which reads as under:
"jkpo;ehL muR gs;spf; fy;tpj; Jiw> jiyikr; nrayfk;> nrd;id-9 fbj vz;.11462-b2 06-1> ehs; 26.06.2006 mDg;Geh;
fpphp[h itj;jpaehjd;>,.M.g.> muRr; nrayhsh;.
ngWeh;
gs;spf; fy;tp ,af;Feh;> nrd;id-9 Iah> nghUs;: ,ilepiyf; fy;tp - cjtp ngWk; cah;epiy- Nky;epiyg;
gs;spfspy; Mrphpauy;yhj gzpaplq;fs; epug;Gjy; njspTiu
Ntz;Ljy; - rhh;e;J.
ghh;it: jq;fs; fbj e.f.vz.30072b1(4) 06> ehs; 11.04.2006
----
muR cjtpngWk; cah;epiy-Nky;epiyg; gs;spfspy; Mrphpauy;yhj gzpaplq;fs; mDkjpg;gjw;fhd jpUe;jpa newpKiwfs; tFg;gjw;nfd mikf;fg;gl;l cah;kl;lf; FOthdJ 08-05-01 md;W Kd;dhs; gs;spf; fy;tpj;Jiwr; nrayh; mth;fs; jiyikapy; eilngw;wNghJ mf;$l;lj;jpy; vLf;fg;gl;l KbTfspd;go gs;spf; fy;tp ,af;FeUf;F 18.05.2001 Njjpapl;l muR foj vz; 22521/b1 96-28d;go mDg;gp itf;fg;gl fltof;iff; Fwpg;gpd; mbg;gilapy; ,Wjpahiz gpwg;gpf;Fk; tiu Mrphpauy;yhg; gzpaplq;fs; epug;Gtjw;F tpjpf;fg;gl;l jilahizia tpyf;fpf; nfhs;s Ntz;oa mtrpak; votpy;iy vdj; jq;fSf;F njhptpj;Jf;nfhs;s gzpf;fg;gl;Ls;Nsd;.
xk;.-
muRr; nrayhsUf;fhf."
14.Even though ban was lifted, based on the above said Government Letter, the educational authorities have rejected the request of the respondents/writ petitioners for approval of their appointment. Thereafter, G.O.Ms.No.91, P & AR (P) Department, dated 06.07.2006, came to be issued, issuing instructions for filling up of posts, by preparing estimates. The said G.O.reads as follows:
"GOVERNMENT OF TAMIL NADU Abstract Public Services - Ban on recruitment - Lifted - Filling up of posts ? Preparation of estimates ? Instructions ? Issued.
Personnel and Administrative Reforms (P) Department G.O. (Ms) No. 91 Dated : 6.7.2006 Read :
1.G.O. (Ms) No.14, Personnel and Administrative Reforms (P) Department, dated 7.2.2006
2.G.O. (Ms) No.179, Personnel and Administrative Reforms(S) Department, dated 2.6.1995
3.G.O. (Ms) No.141, Personnel and Administrative Reforms (S) Department, dated 15.6.98
4.Govt. letter No.6264/Personnel and Administrative Reforms (S) Department, 2000-1, dated 11.2.2000
5.Letter No.72413/Ze-Bag/2002-1, Finance Department, dated 11.10.2002.
ORDER The Government have lifted the ban on filling up of vacant posts in Government Departments by direct recruitment in their orders first read above.
2. The Government, after careful consideration, issue the following guidelines, for preparation of estimates of vacancies for filling up of posts by direct recruitment as well as by other methods:
3. The following are the methods of recruitment:
(a) Recruitment through Tamil Nadu Public Service Commission / Teachers Recruitment Board / Uniformed Services Recruitment Board.
(b) Recruitment to posts outside the purview of Tamil Nadu Public Service Commission / Teachers Recruitment Board / Uniformed Services Recruitment Board where Government is the appointing authority.
(c) Recruitment to posts outside Tamil Nadu Public Service Commission / Teachers Recruitment Board / Uniformed Services Recruitment Board where Government is not the appointing authority (through Employment Exchange etc.)
(d) Recruitment by promotion / transfer within a service recruitment by transfer (from one service to another)
4. The estimate of vacancies for all posts should be reassessed based on need. In any case, they may not exceed the actual vacancies i.e. retirement vacancies and vacancies caused due to actual promotions during the relevant period of estimation of 12 months.
5. All estimates of vacancies for all categories of recruitment should be placed before the Staff Committee constituted as per Letter No.72413/Ze- ag)/2002-1 Finance (Ze-Bag) Department, dated 11.10.02. Thereafter the estimates may be communicated to Tamil Nadu Public Service Commission, Employment Exchange etc. or the appointing authority as the case may be and the recruitment may be done following the usual procedures in a phased manner over a period of 1 to 2 years by suitably earmarking vacancies.
6. The orders issued in G.O.(Ms) No.49, P&AR(F) Department, dated 14.5.2002 for appointments to Group D posts (other than Office Assistants) and the orders issued in G.O.(Ms).No.666, Finance (Ze-Bag) Department, dated 24.8.1992 (for O.As) as well as subsequent instructions thereon may be followed for filling up Group-D posts. The instructions issued in letter No.56532/2001-3, Public (Ex-Servicemen) Department, dated 2.8.2002 for utilizing the services of personnel from Tamil Nadu Ex-Servicemen Corporation Limited on contract appointment as security personnel, Drivers etc. may also be followed.
7. The above instructions will come into effect with immediate effect. All Departments may follow the above instructions scrupulously.
(By order of the Governor) L.K.TRIPATHY CHIEF SECRETARY TO GOVERNMENT"
15.In G.O.(Ms)No.95, P & AR(P) Department, dated 12.07.2006, an amendment to G.O.Ms.No.91, P & AR (P) Department, dated 6.7.2006, came to be issued, which reads as under:
"ABSTRACT Public Services - Filling up of vacancies - Preparation of estimate - Instructions - Amendment - Issued.
------------------------------------------------------------
PERSONNEL AND ADMINISTRATIVE REFORMS (P) DEPARTMENT
G.O.(Ms)No.95 Dated: 12.7.2006
Read:
G.O.(Ms)No.91, Personnel & Administrative Reforms (P) Department, dated 6.7.2006.
...
ORDER:
The following amendment is issued to the orders issued in G.O.(Ms)No.91, Personnel and Administrative Reforms (P) Department dated 6.7.2006.
AMENDMENT In the said G.O., for paragraph 4, the following paragraph shall be substituted, namely:-
"4.The estimate of actual vacancies shall be assessed by including the vacancies existing as on date as well as retirement vacancies and vacancies caused due to actual promotions during the relevant period of estimation of 12 months".
(BY ORDER OF THE GOVERNOR) L.K.TRIPATHY CHIEF SECRETARY TO GOVERNMENT"
16.On 08.02.2007, granting permission to fill up vacant posts in the category of non-teaching staff, G.O.(1D) No.37, School Education (R2) Department, has been issued and it reads as under:
"ABSTRACT School Education Department - Permission to fill up the vacant posts in the category of non-teaching staff - Orders issued.
-------------------------------------------------------------
School Education (R2) Department G.O.(1D)No.37, dated 8.2.2007 Read:
1)From the Director of School Education letter Rc.No.111662/C9/C6/2006 dated 15.11.2006.
2)From the Director of School Education Letters Rc.No.206/C9/C6/2006 dated 24.11.2006 and 11.12.2006.
3)From the Director of School Education Letters Rc.No.52721/C9/C6/2006 dated 03.01.2007 and 05.01.2007.
----------
ORDER:
The Director of School Education has submitted proposals for filling up the following vacancies in the various categories of non-teaching staff in the School Education Department.
Junior Assistant 760 Typist 428 Steno-Typist 27 Driver 23 Office Assistants 2507 Watchman 274 Sweeper 224 Gardener 143 Scavenger 96 Waterman 199
2)The Government have carefully examined the proposals of the Director of School Education and they issue the following orders regarding filling up of the various categories of non-teaching staff in the School Education Department.
(1) 760 posts of Junior Assistants shall be filled up. (2) 428 posts of Typists shall be filled up over a period of 2 years.
Out of this, 214 posts shall be filled upo now through the Commissioner of Technical Education and the remaining posts after one year.
(3)27 vacant posts of Steno-Typist need not be filled up now, pending review.
(4)23 posts of Drivers and 137 post of Watchman (50% of 274 vacant posts) shall be filled up through outsourcing from the Tamil Nadu Ex- servicemen's Corporation (TEXCO).
(5)224 posts of Sweeper shall be filled up through outsourcing.
(6)96 posts of Scavenger shall be filled up through outsourcing.
(7)The vacant posts of Gardeners (143) and Waterman (199) need not be filled up.
(8)Out of the 2507 posts of Office Assistants 50% Viz., 1254 posts shall be filled up now, pending detailed review for the balance posts.
3)This orders issues with the concurrence of Finance Department vide its U.O.No.188/FS/P/2007 dated 5.2.2007.
(By Order of the Governor) M.Kutralingam Secretary in Government.
To:
The Director of School Education Chennai-6. Copy to The Personnel & Administrative Reforms Department, Chennai-9.
//Forwarded by Order// Section Officer."
17.Thereafter, G.O.Ms.No.115, School Education (D2) Department, dated 30.05.2007, has been issued, issuing orders to fill up non-teaching staff i Government Aided Secondary Schools, which reads as under:
"ABSTRACT School Education - Filling of Non-teaching staff in Government Aide Secondary School - orders issued - regarding.
-----------------------------------------------------------
School Education (D2) Department
G.O.(Ms)No.115 Dated: 30.05.2007
Read:
1.Letter Roc.30072/D1/4/2006 dt.11.12.2006 and 71599/D/E4/99 dated 16.4.2007 of the Director of School Education, Chennai.
2.G.O.Ms.No.(1D) No.37, School Education Department, dated 08.02.2007.
...
ORDER:
In reference to Government order 2nd cited the Government have permitted to fill the following non Teaching posts of High and Higher Secondary Schools.
001.All junior assistant post in the existing vacancy may be filled.
002.50% existing vacancy in watchman post shll be filled by outsourcing method (Texco).
003.All the existing vacancy of sweepers post shall be filled by outsourcing by private Agency.
004.All the Gardener and Waterman posts need not be filled.
005.Out of existing vacancies of Office Assistant Posts, 50% posts shall be filled. Balance posts shall be filled after review.
2. In the reference first cited the Director of School Education has reported that the following posts are vacant in the state.
Posts No.of vacant posts.Junior Assistant 164 Office Assistant 261 Watchman 176 Sweeper 26 Scavenger 40 Sweeper cum Scavenger 7
3. In the light of above facts, as referred in para 1 of the Government orders all the non teaching posts of High and Higher Secondary Schools can be filled by using following norms.
1.All the existing vacancy of 164 Junior Assistants can be filled in all Government Aided High and Higher Secondary Schools.
2.In respect of Office Assistants, 50% vacancies out of 281 Government have prmitted to fill up 140 posts at present. While filling up these osts priority shall be given on the strength of the pupils and post shall be filled first and the remaining posts shall be vacant that was occurred first.
3.In respect of watchman, sweeper, scavenger, sweeper cum scavenger posts are concerned post like Government Schols the expenditure shall be met by the Aided Schools of these posts shall be filled up by an outsourcing method.
4.This order is issued with concurrence under UO NOte No.1430/FS/P/O dt/27.04.2007 of Finance Department.
Sd.M.Kutralingam, SECRETARY TO GOVERNMENT"
18.On 23.07.2010, the Government have issued orders G.O.Ms.No.203, in respect of filling up of vacant posts in non-teaching categories in Government aided Higher and Higher Secondary Schools, pursuant to the announcement of the Hon'ble Minister for School Education on the floor of the Assembly. The said G.O. reads as follows:
"RUf;fk;
gs;spf; fy;tp ? muR cjtp bgWk; cah;epiy-nky;epiyg; gs;spfspy; fhypahf cs;s Mrphpauy;yhj gzpapl';fis epug;g[jy; ? 16/04/2010 md;W eilbgw;w khdpaf; nfhhpf;ifapd; nghJ khz;g[kpF gs;spf;fy;tp mikr;rh; mth;fspd; mwptpg;g[ ? Mizfs; btspaplg;gLfpd;wd/ ???????????????????????????????????????????????????????????????????
gs;spf; fy;tp (o1)j; Jiw
murhiz (epiy) vz;/203 ehs;/23.07.2010
jpUts;Sth; Mz;L ? 2041.Mo ? 7
gof;fg;gl;lit/
1/gs;spf;fy;tp ,af;Fehpd; foj e/f/vz;/87216-o1-,4-ehs;/4/12/2009 2/16/04/2010 md;W eilbgw;w khdpaf; nfhhpf;ifapd; nghJ khz;g[kpF gs;spf;fy;tp mikr;rh; mth;fspd; mwptpg;g[ Miz:
16/04/2010 md;W eilbgw;w gs;spf;fy;tpj;Jiw khdpaf; nfhhpf;ifapd; nghJ muR epjpa[jtpbgWk; cah;epiy-nky;epiyg; gs;spfspy; fhypahf cs;s 952 Mrphpauy;yhj gzpapl';fis epug;g eltof;if nkw;bfhs;sg;gLk; vd;W khz;g[kpF gs;spf;fy;tpj;Jiw mikr;rh; mth;fshy; mwptpf;fg;gl;lJ/ 2/muR cjtpbgWk; cah;epiy-nky;epiyg; gs;spfspy; fhypahf cs;sjhf Kjyhtjhf gof;fg;gl;l fojj;jpy; gs;spf;fy;tp ,af;Feuhy; bjhptpf;fg;gl;l 952 Mrphpauy;yhj gzpapl';fspy;. fhtyh; (Watchman). njhl;lf;fhuh; kw;Wk; bgUf;Fgth; (Gardener cum Sweeper) jz;zPh; bfhzh;gth; (Waterman) njhl;lf;fhuh;( Gardener ) bgUf;Fgh; (Sweeper) Jg;g[uthsh; (Scavenger) jz;zPh; bfhzh;gth; kw;Wk; bgUf;Fgth; (Waterman cum Sweeper) Jg;g[uthsh; kw;Wk; njhl;lf;fhuh; (Scavenger cum Gardener) bgUf;Fgth; kw;Wk; Jg;g[uthsh; (Sweeper cum Scavanger) jz;zPh; bfhzh;gth; kw;Wk; njhl;lf;fhuh; (Waterman cum Gardener ) kw;Wk; fhtyh; kw;Wk; bgUf;Fgth; (Watchman cum Sweeper)Mfpa. ,izg;g[?1y; gl;oayplg;gl;Ls;s 467 gzpapl';fis btspahl;fisf; bfhz;L (Out Sourcing) bjhlh;e;J epug;gpf;bfhs;s mDkjp tH';fyhk; vd;Wk;. kPjKs;s ,izg;g[?2y; gl;oayplg;gl;Ls;s 485 gzpapl';fSf;F mit epug;gg;gl;l ehs; Kjy; KGneu Cjpa tpfpjj;jpy; muR khdpaj;Jld; mDkjp tH';fyhk; vd;Wk; KobtLf;fg;gl;lL mt;thnw muR MizapLfpwJ/ 3/,t;thiz epjpj;Jiwapd; mYty; rhh;gw;w Fwpg;g[ vz;/39197- epjp(fy;tp?II)2010 ehs;/15/07/2010y; bgwg;gl;l xg;g[jYld; btspaplg;gLfpwJ/ (MSehpd; Mizg;go) k/Fw;wyp';fk;
muR Kjd;ikr; brayhsh;
,izg;g[?1 (murhiz (epiy) vz;/203. gs;spf; fy;tp (o1)Jiw. ehs;/23/07/2010 t/vz;/ gzpaplj;jpd; tif fhypg;gzp ,l';fspd; vz;zpf;if 1/ fhtyh;235
2/ njhl;lf;fhuh; kw;Wk; bgUf;Fgth;25
3/ jz;zPh; bfhzh;gth;64
4/ njhl;lf;fhuh;26
5/ bgUf;Fgth;60
6/ Jg;g[uthsh;38
7/ jz;zPh; bfhzh;gth; kw;Wk; bgUf;Fgth;7
8/ Jg;g[uthsh; kw;Wk; njhl;lf;fhuh;3
9/ bgUf;Fgth; kw;Wk; Jg;g[uthsh;5
10/ jz;zPh; bfhzh;gth; kw;Wk; njhl;lf;fhuh;3
11/ fhtyh; kw;Wk; bgUf;Fgth;1
bkhj;jk;467
k/Fw;whyp';fk;
muR Kjd;ikr; brayhsh;
,izg;g[?2 (murhiz (epiy) vz;/203. gs;spf; fy;tp (o1)Jiw. ehs;/23/07/2010 t/vz;/ gzpaplj;jpd; tif fhypg;gzp ,l';fspd; vz;zpf;if 1/ ,sepiy cjtpahsh;14
2/ Ehyfh; epiy?1 30 3/ Ma;tf cjtpahsh;103
4/ Ehyf cjtpahsh;6
5/ gjpt[U vGj;jh;248
6/ mYtyf cjtpahsh;58
7/ Ma;tf cldhsh;4
8/ Ehyf cldhsh;22
bkhj;jk;485
k/Fw;whyp';fk;
muR Kjd;ikr; brayhsh;
--Mizg;go mDg;gg;gLfpwJ--
gphpt[ mYtyh;
19.Thereafter, a letter in No.8884/D1/2011-2, dated 09.07.2012, has been sent to the Director of School Education, by the Deputy Secretary to the Government, School Education Department, in response to the query raised by the Director of School Education in his letter Na.Ka.No.63658/D1/E4/2011, dated Nil.03.2012. The said letter is as under:
"kpf mtruk;
jdpegh; tHpahf gs;spf; fy;tp(o1)Jiw.
jiyikr;brayfk;.
brd;id?9/ fojk; vz;/8884-o1-2011?2. ehs;/09/07/2012 mDg;g[eh;
jpU/br/bry;tuhR. vk;/V/.
muR Jizr; brayhsh;/ bgWeh;
gs;spf; fy;tp ,af;Feh;.
brd;id?6/ Iah.
bghUs;
gs;spf;fy;tp ? cjtp bgWk; gs;spfs; ? muR cjtp bgWk; gs;spfSf;F Vw;fdnt mDkjpf;fg;gl;Ls;s Mrphpauy;yhnjhh; gzpapl';fspy; jw;nghJ fhypahft[s;s gzpapl';fis epug;gpf; bfhs;Sjy; ? murpd; mDkjp ntz;oaJ ? rhh;g[ ghh;;it 1/muRf; fojk; vz;/11462-o2-2006?1. ehs;/26/05/2006 2/muRf; fojk; vz;/4049-o1-2011?1. ehs;./24/03/2011 3/j';fsJ fojk; e/f/vz;/63538-o1-,4-2011. ehs;/ 03/2012 ??????
ghh;itapy; fz;l j';fsJ fojj;jpd; kPJ ftdk; <h;f;fg;gLfpwJ/ 2/muR cjtp bgWk; gs;spfSf;F Mrphpah; kw;Wk; Mrphpauy;yhnjhh; gzpapl';fSf;F bjhlh;e;J khdpak; tH';FtJ my;yJ mtw;wpw;fhd g[jpa bewpKiwfs; tFg;gJ Fwpj;J muRf;F chpa ghpe;Jiuapid mspf;f VJthf. ty;Yeh; FG xd;wpid mikj;J Ma;t[ bra;a jw;nghJ murhy; eltof;if vLf;fg;gl;L tUk; epiyapy;. ,jpy; vLf;fg;gLk; ,Wjp Kotpw;nfw;g. muR cjtpbgWk; gs;spfSf;F murhy; mDkjpf;fg;gl;L. mg;gs;spfspy; fhypahf cs;s Mrphpauy;yhj gzpapl';ifs epug;gpf; bfhs;s mDkjpg;gJ Fwpj;J gpd;dh; KobtLf;fyhk; vd muR fUJfpwJ/ vdnt. nkw;fhdqk; bghUs; bjhlh;ghd j';fsJ nfhhpf;if Fwpj;J jw;nghJ ghprPypf;Fk; mtrpak; vHtpy;iy vd;gijj; bjhptpj;Jf; bfhs;fpnwd;/ j';fs; ek;gpf;ifa[s;s.
muR Jizr; brayhsUf;fhf"
20.It is the main contention of the learned Special Government Pleader that G.O.Ms.No.91, P & A.R.Department, dated 06.07.2006, G.O.Ms.No.37, School Education (R2) Department, dated 08.02.2007 and G.O.Ms.No.115, School Education (D2) Department, dated 30.05.2007, issued by the Government in respect of appointing non-teaching staff in aided Private Schools have not been considered by this Court in its earlier judgments and therefore the judgments relied upon by the learned Single Judges are not applicable to the present cases.
21.But, we are not in agreement with the submission of the learned Special Government Pleader. As rightly contended by the learned counsel for the respondents/writ petitioners, in all the decisions rendered earlier, the applicability of above Government Orders and letters issued thereafter have been considered and discussed. Even in the decision rendered by a Hon'ble Division Bench of this Court in W.A.(MD)No.36 of 2010, dated 16.07.2013, against which Review Application(MD)No.98 of 2015 has been filed, the Hon'ble Division Bench has considered those Government Orders and rejected the appeal filed by the Educational Authorities. It is useful to extract the whole judgment, which reads as under:
"The Chief Educational Officer of the Kanyakumari District and the District Educational Officer of the Kanyakumari District have preferred this Writ Appeal as against the order of the learned single Judge dated 06.03.2009, who allowed Writ Petition (MD)No.1718 of 2009 following the decision of this Court in 2008 (5) CTC 648 (Thiruvalluvar Higher secondary School, Palamaner Road, Gudiyattam, Vellore District rep. by the Secretary, School Committee, K.M.Govindarjan ..Vs.. The Government of Tamil Nadu rep. by its Secretary, Department of School Education, Fort St.George, Chennai and three others).
2.It is seen that the respondent School herein is one among the institutions receiving aid of the Government of Tamil Nadu. The post of Watchman fell vacant on 01.07.2007 due the retirement of then incumbent A. Mary Michael John with effect from 30.05.2007. In that vacancy, a fully qualified candidate G. Christu Manohara Dhas was appointed as Watchman with effect from 02.07.2007. For the disbursement of the salary, the School submitted a proposal. The District Educational Officer/2nd appellant herein returned the proposal. The respondent herein resubmitted the proposal to the 2nd appellant on 17.09.2008 and for this, till now, there is no reply.
3.Learned counsel for the respondent submitted that under G.O.Ms.No.212 (Personnel & Administrative Reforms Department) dated 29.11.2001, the ban imposed on Government employments has no relevance to the appointment made by the Private Schools and even that ban was lifted by subsequent G.O.Ms.No.14, Personnel and administrative Reforms (P) Department dated 7.2.2006. Insofar as G.O.Ms.No.115 (School Education (D2) Department) dated 30.5.2007 is concerned, it made no reference to the filling up of the post of Watchman in Private Schools. The new incumbent was appointed with effect from 02.07.2007. In the above circumstances, aggrieved by the return of the proposal by the second appellant, the respondent filed the writ petition.
4.Referring to the decision of this Court reported in 2008 (5) CTC 648 cited supra, the learned single Judge pointed out that this Court had considered the scope of G.O.Ms.212 (Personnel & Administrative Reforms Department) dated 29.11.2001 that there was absolutely no prohibition to appointment as non-teaching staff in private schools and that the 2nd appellant was under a misconception that G.O.Ms.No.212 (Personnel and Administrative Reforms-P) Department dated 29.11.2001 and G.O.Ms.No.115 (School Education (D2) Department) dated 30.5.2007 prohibited the appointment of Watchman. In the circumstances, following the decision of this Court reported in 2008 (5) CTC 648 (Thiruvalluvar Higher secondary School, Palamaner Road, Gudiyattam, Vellore District rep. by the Secretary, School Committee, K.m.Govindarjan vs. The Government of Tamil Nadu rep. by its Secretary, Department of School Education, Fort St.George, Chennai and three others), the prayer sought for by the respondent was granted and the appellants were directed to disburse the grant-in-aid towards the salary of the said Watchman along with all the attendant benefits.
5. Learned Special Government Pleader appearing for the appellants submitted that the ban on appointment is uniformly followed; it being a policy decision, it will not be a subject matter of judicial review. He further pointed out that even as per G.O.Ms.No.115 (School Education (D2) Department) dated 30.5.2007, there is no mention regarding the filling up of the post of Watchman. G.O.Ms.No.14, Personnel and administrative Reforms (P) Department dated 7.2.2006 and G.O.Ms.No.91, Personnel and administrative Reforms (P) Department dated 6.7.2006 prescribe the guidelines for preparation of estimation of vacancies for filling up the posts by direct recruitment as well as by other methods. The guidelines issued by the Government have to be strictly followed in the matter of appointment. Since the respondents have failed to intimate the vacancies for the post of Watchman, the respondent herein cannot, as of right, claim the relief for the aid.
6. It is seen from the affidavit in the writ petition that intimation was sent to the respondent about the vacancy that had fallen. In paragraph 8 of the affidavit, the respondent specifically averred that for the disbursement of grant in aid towards salary, the school submitted its proposal to the District Educational Officer, which was returned. The school is stated to have re-submitted the proposal on 17.09.2008. There is no denial of the said fact by the appellants herein. Hence, in the absence of any material to show that the respondent herein had not intimated as to the vacancy to be filled up and there being no action taken on the representation made on 17.09.2008, we do not find any error in the order of the learned single Judge granting the prayer of the respondent. Further, by G.O.Ms.No.14, Personnel and administrative Reforms (P) Department dated 7.2.2006, the ban that was imposed in G.O.Ms.No.212 (Personnel & Administrative Reforms Department) dated 29.11.2001 was cancelled. Quite apart from this, G.O.Ms.No.115 (School Education (D2) Department) dated 30.5.2007 makes no reference to the appointment of non-teaching staff. In any event, as rightly pointed out by the respondent herein on intimation about the vacancies that had fallen, no action was taken by the appellants. Hence, no exception could be taken as to the order passed by this Court directing the appellants herein to disburse the grant in aid towards the salary of the Watchman along with the attendant benefits. Contrary to the assertion of the appellants, there is no interference as far as the policy decision is concerned. The decision given by the learned single Judge goes along with the policy of the Government and it is imperative that the educational institution does not suffer on account of the lethargy of the authorities.
7. Hence, the Writ Appeal is dismissed. Consequently, the connected M.P.(MD)No.1 of 2010 is closed. No costs."
21.Likewise, recently another Hon'ble Division Bench of this Court, to which one of us (SMKJ) was a party, had an occasion to consider the same issue in W.A.(MD)No.2 of 2015, dated 10.04.2015, and dismissed the writ appeals filed by the Department, holding as under:
"8.We have heard the learned counsel appearing for the parties and perused the materials on record.
9. From the materials on record and pleadings, it is seen that the appellants have rejected the proposal for approval of appointment of the first respondent, on the ground that prior approval is not obtained and subsequently, as per G.O.(Ms)No.115, School Education (D2) Department,dated 30.05.2007, the Government must permit the appointment of nonteaching staff. This Court in the Judgment, dated 30.11.2010, made in W.A.(MD) No.813 of 2010 [The District Educational Officer, Paramakudi, Ramanathapuram District Vs. I.Michaelammal and another] held that prior approval is not necessary.
10.The contention of the first respondent that G.O.(Ms)No.115, School Education (D2) Department, dated 30.05.2007, is not applicable to the appointment of the first respondent as Library Clerk, has considerable force. The appellants themselves have admitted in paragraph 5 of the counter filed in the writ petition that G.O.(Ms)No.115, School Education (D2) Department, dated 30.05.2007, is not applicable to the post of Library Clerk. The appellants have not rejected the proposal, for approval of appointment of the first respondent, on the ground of ban order or take a stand that the appointment of the first respondent can be approved only from lifting the ban order, dated 07.02.2006. Therefore, the appellants cannot be allowed to improve their case in appeal, by relying on various Judgments of this Court, including the Judgment of this Court, dated 24.03.2014, made in Review Application (MD)No.101 of 2013, to which, one of us [V.M.VELUMANI, J.] was a party, wherein it has been held that the appointment of non-teaching staff should be approved only from the date of lifting of the ban order, i.e., 07.02.2006.
11. In all these Judgments, the proposal for approval of appointment of non-teaching staff was rejected on the ground of ban order. In the present case, the proposal to approve the appointment of the first respondent was rejected on the ground of no prior permission was obtained for approval.
12. For the reasons stated above, the writ appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed."
22.Therefore, it is not correct to contend that this Court has not considered and discussed about the applicability of the Government Orders and letters, referred to above, issued in respect of appointment of non- teaching staff in aided private schools. Therefore, the contention of the learned Special Government Pleader on this aspect is liable to be rejected and accordingly it is rejected.
23.It is the submission of the learned counsel for the respondent/writ petitioners that with regard to the appointment of non- teaching staff, in aided private schools, there is no need to get prior permission from the educational authorities, as Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 will apply only to teaching staff. In this regard, the learned counsel for the respondent/writ petitioners relied on a judgment of a learned Single Judge of this Court in A.Murugesan v. State of Tamil Nadu, reported in (2007) 4 MLJ 561. They have also relied upon a Hon'ble Division Bench decision of this Court in W.A.(MD)No.213 of 2014, dated 26.02.2014, wherein the Hon'ble Division Bench has held as follows:
"2.The writ petition has been filed for Mandamus to direct the District Educational Officer, Tuticorin to approve the appointment of one P.Rajavel as Lab Assistant in the respondent School and to release grant-in-aide towards his salary, allowances and other attendant benefits.
3.The learned single Judge relied upon Rule 15 of the Tamil Nadu Private Schools (Regulation) Rules 1974 which states that a prior approval is required for appointment of teaching staff and not in respect of non-teaching staff which was upheld by the learned Single Judge as per the decision of this Court in A.Murugesan Vs. State of Tamil Nadu,k rep.by its Secretary and others reported in 2007(4) MLJ 561, and allowed the writ petition on the same lines.
4.We have perused the Rules as such and also the letter of the Chief Educational Officer, Tuticorin dated 17.10.2012. The said letter is not a rejection but only states that approval will be given in future. Therefore, we are included to accept the finding of the learned single Judge that no prior permission is required in respect of non-teaching staff."
24.The learned Special Government Pleader does not dispute the above law laid down by this Court. However, he submitted that the issue involved in these cases is as to whether while making appointments, the school authorities have followed the guidelines issued in the above mentioned Government Orders. We have already rejected the contention of the learned Special Government Pleader in this regard.
25.One more contention put-forth by the learned counsel for the respondents/writ petitioners is that the action of the concerned educational authorities in not approving the appointment of the respondents/writ petitioners would amount to violation of Articles 14 and 16 of the Constitution, inasmuch in similar cases where the orders of this Court have been complied with and appropriate Government Orders have been issued, implementing the orders of this Court. In support of the above submission, learned counsel for the respondents/writ petitioners relied on G.O.(4D)No.9, School Education (D2) Department, dated 06.03.2012 and G.O.(4D)No.25, School Education (D2) Department, dated 04.09.2012, wherein the orders of this Court have been complied with, in letter and spirit. Those two Government Orders are extracted hereunder.
26.G.O.(4D)No.9, School Education (D2) Department, dated 06.03.2012, reads as under:
"RUf;fk;
gs;spf; fy;tp ? cjtp bgWk; gs;spfs; ? Jhj;Jf;Fo khtl;lk;. nfhtpy;gl;o. cjtpbgWk; vtbu!;l; khhpag;g ehlhh; nky;epiyg; gs;sp ? 01/03/1989 Kjy; fhypahft[s;s ,sepiy cjtpahsh; gzpaplj;jpid epug;gpl mDkjp nfhhp gs;spr; brayhsuhy; bjhlug;gl;l tHf;F ? ePjpg;nguhiz kD (vk;/o) vz;/2218-2009y; brd;id cah;ePjpkd;w kJiuf; fpis tH';fpa 01/04/2009k; ehspl;l jPh;g;ghiz ? jPh;g;ghizapid bray;gLj;jp Miz btspaplg;gLfpwJ/ ????????????????????????????????????????????????????????????????????
gs;spf; fy;tp (o2)j; Jiw
murhiz (4o) vz;/9 ehs;/06/03/2012
jpUts;Sth;
Mz;L ? 2043 khrp ? 23/
1/tHf;F ePjpg;nguhiz kD vz;/2218-2009y; kw;Wk; gy;tif kD vz;/1 kw;Wk; 2- 2009y; brd;id cah;ePjpkd;w kJiuf; fpis tH';fpa jPh;g;g[. ehs;/01/04/2009/ 2/nky;KiwaPl;L tHf;F (lgps;a[[/V/(vk;/o)) vz;/391-2010 kw;Wk; gy;tif kD vz;/3-2010y; brd;id cah;ePjpkd;w kJiuf;fpis tH';fpa jPh;g;g[. ehs;/27/09/2010/ 3/gs;spf; fy;tp ,af;Fehpd; fojk; e/f/vz;/35466-o2-,1-2009 ehs;/13/07/2011 ******** Miz Jhj;Jf;Fo khtl;lk;. nfhtpy;gl;o. cjtpbgWk; vtbu!;l; khhpag;g ehlhh; nky;epiyg; gs;spr; brayuhy;. muRf; fojk; vz;/11462-o2-2006?1. ehs;/26/05/2006 kw;Wk; gs;spf; fy;tp ,af;Fehpd; bray;Kiwfs; e/f/vz;/86703-o1-,-2006. ehs;/26/09/2006 Mfpatw;wpid ,uj;J bra;jplt[k;. mg;gs;spapy; 1/03/19896 Kjy; fhypahf cs;s ,sepiy cjtpahsh; gzpaplj;jpid epug;gpl mDkjp ntz;oa[k; brd;id cah;ePjpkd;w kJiuf; fpisapy; bjhlug;gl;l kJiuf; fpis tH';fpa nkny Kjyhtjhfg; gof;fg;gl;l jPh;g;ghizapy; gpd;tUkhW Mizaplg;gl;Ls;sJ/ ".......When the matter came up for hearing, Mr.K.Balasubramanian, Learned Additional Government Pleader appearing for the respondents submitted that the issue involved in this writ petition is already covered by a decision of this Court reported in 2007(4) MLJ 561 (a.Murugesan Vs.State of Tamil Nadu, rep. by its Secretary, Department of School Education, Chennai and others). His submission is placed on record.
7.In view of the said submission made by the learned counsel for the respondents, the impugned orders are set aside and the writ petition is allowed".
2/murhiz (epiy) vz;/212. gzpahsh; kw;Wk; eph;thf rPh;jpUj;jj; Jiw. ehs;/29/11/2001?d;go 29/11/2001 Kjy; mkypy; ,Ue;j epakdj; jilahiz. murhid (epiy) vz;/14. gzpahsh; kw;Wk; eph;thf rPh;jpUj;jj; Jiw. ehs;/07/02/2006y; tpyf;fpf; bfhs;sg;gl;lJ/ ,jidj; bjhlh;e;J. murhy; btspaplg;gl;l muRf; fojk; vz;/11462-o2-2006?1. gs;spf;fy;tp. ehs;/26/05/2006?y; cjtpbgWk; cah;epiy- nky;epiyg; gs;spfspy; Mrphpauy;yhjg; gzpahsh;fis mDkjpg;gjw;fhd jpUj;jpa bewpKiwfs; (Revised Norms in fixing Non-Teaching Staff in Aided School) tFg;gjw;bfd mikf;fg;gl;l cah;kl;lf; FGtpd; eltof;iff; Fwpg;gpd; mog;gilapy; ,Wjpahiz gpwg;gpf;fg;gLk; tiu Mrphpauy;yhg; gzpapl';fis epug;g[tjw;F tpjpf;fg;gl;l jilahizia tpyf;fpf; bfhs;s ntz;oa mtrpak; vHtpy;iy vdj; bjhptpf;fg;gl;Ls;sJ vd;Wk;. nkYk;. jkpH;ehL m';fPfhpf;fg;gl;l jdpahh; gs;spfs; (xG';FKiw) tpjpfs; 1974. tpjp 15(4) (3)y; rpWghd;ikaw;w gs;spfspy; gzpaplj;jpid epug;gpl Kjd;ikf; fy;tp mYtyhpd; Kd; mDkjp bgw ntz;Lk; vdj; bjhptpf;fg;gl;Ls;sJ vd;Wk;. Mfnt. nkw;fhz; tpjp. Mrphpah; kw;Wk; Mrphpauy;yhjg; gzpahsh;fSf;Fk; bghUe;Jk; vd;gjhy;. nkw;fhz; 01/04/2009?k; ehspl;l jPh;g;gpid vjph;j;J Jiw rhh;ghf brd;id cah;ePjpkd;w kJiuf; fpisapy; nky;KiwaPl;L kD vz;/391-2010 jhf;fy; bra;ag;gl;lJ vd;Wk; gs;spf;fy;tp ,af;Feh; bjhptpj;Js;shh;/ nkYk;. nkw;go nky;KiwaPl;L kDt[k;. nkny ,uz;lhtjhfg; gof;fg;gl;l jPh;g;ghizapy; js;Sgo bra;ag;gl;lJ vd;Wk;. ,jidaLj;J. jPh;g;ghizapd;go bray;gLtJ Fwpj;J bgwg;gl;l muR rpwg;g[ tHf;fwp"hpd; rl;lf; fUj;jpy; ,t;tHf;F nky;KiwaPL bra;a cfe;jJ my;y vdj; bjhptpf;fg;gl;Ls;sjhy;. Jhj;Jf;Fo khtl;lk;. nfhtpy;gl;o. vtbu!;l; khhpag;g ehlhh; nky;epiyg; gs;spapd; brayuhy;. mg;gs;spapy; 1/3/1989 Kjy; brd;id cah;ePjpkd;w kJiuf; fpisapy; bjhlug;gl;l tHf;F lgps;a[/g;gp(vk;o) vz;/2218- 2009y; tH';fg;gl;l nkny Kjyhtjhfg; gof;fg;gl;l jPh;g;ghizapid bray;gLj;j ntz;o. nkw;fhz; gs;spapy; 1/3/1989 Kjy; fhypahf cs;s ,sepiy cjtpahsh; gzpaplj;jpid epug;gpl murpd; mDkjpapid tH';FkhW nkny K:d;whtjhfg; gof;fg;gl;l fojj;jpy; gs;spf; fy;tp ,af;Feh; muirf; nfl;Lf; bfhz;Ls;shh;/ 3/nkw;bjhptpf;fg;gl;l epiyapy;. tHf;F ePjpg;nguhiz kD vz;/2218-2009d; kPjhd nkny Kjyhtjhfg; gof;fg;gl;l jPh;g;ghizapid bray;gLj;j ntz;o. gs;spf; fy;tp ,af;Fehpd; ghpe;Jiuapid muR ftdKld; ghprPyid bra;J mjid Vw;fyhk; vdf; fUjp. mt;thnw Jhj;Jf;Fo khtl;lk;. nfhtpy;gl;o cjtpbgWk; vtbu!;l; khhpag;g ehlhh; nky;epiyg; gs;spapy; 01/03/1989 Kjy; fhypahft[s;s xU ,sepiy cjtpahsh; gzpaplj;jpid. ,t;thiz btspaplg;gLk; ehs; Kjy; epug;gpf;bfhs;s mg;gs;spf;F mDkjp tH';fp muR MizapLfpwJ/ 4/,t;thiz epjpj;Jiwapd; m/rh/vz;/1934-fy;tp?2-2012. ehs;/08/02/2012y; bgwg;gl;l mj;Jiwapd; ,irt[ld; btspaplg;gLfpwJ/ (MSehpd; Mizg;go) j/rgpjh muR Kjd;ikr; brayhsh;"
27.G.O.(4D)No.25, School Education (D2) Department, dated 04.09.2012, reads as under:
"RUf;fk;
gs;spf; fy;tp ? cjtp bgWk; gs;spfs; ? fd;dpahFkhp khtl;lk;. Mrhhpg;gs;sk;. cjtpbgWk; g[dpj n$hrg; nky;epiyg; gs;sp ? mDkjpf;fg;gl;l gzpaplj;jpy; eph;thfj;jhy; epakdk; bra;ag;gl;l jpUkjp//rp//nkhp Rnyhr;rdh vd;guJ epakdj;jpid Vw;gspf;ff; nfhhp bjhlug;gl;l tHf;F ? ePjpg;nguhiz kD (vk;/o) vz;/1097-2009y; ? 10/02/2009 md;W tH';fg;gl;l jPh;g;g[ ? jPh;g;ghizapid bray;gLj;Jjy; ? Miz btspaplg;gLfpwJ/ ??????????????????????????????????????????????????????????????????????
gs;spf; fy;tp (o2)j; Jiw
murhiz (4o) vz;/25 ehs;/04/09/2012
jpUts;Sth; Mz;L ? 2043 Mtzp ? 19/
1/tHf;F ePjpg;nguhiz kD vz;/1097-2009y; brd;id cah;ePjpkd;w kJiuf; fpisapd; 10/02/2009 ehspl;l jPh;g;g[ 2/ePjpg;nguhiz nky;KiwaPL (vk;/o) vz;/609-2009 kw;Wk; gy;tif kD vz;/2-09d; kPJ brd;id cah;ePjpkd;w kJiuf; fpisapd; 25/11/2009 ehspl;l jPh;g;g[ 3/gs;spf; fy;tp ,af;Fehpd; fojk; e/f/vz;/14743-o1-,3-2009 ehs;/12/07/2011. 22/12/2011 kw;Wk; 20/07/2012 ******** Miz fd;dpahFkhp khtl;lk;. jf;fiy fy;tp khtl;lk;. Mrhhpg;gs;sk;. g[dpj n$hrg; nky;epiyg; gs;spapy; fhypahf ,Ue;j bjhHpw;fy;tp Mrphpah; gzpaplj;jpy; jpUkjp/ rp/nkhp Rnyhr;rdh vd;ghiu bjhHpw;fy;tp Mrphpauhf 25/06/1991 Kjy; nkw;fhz; gs;sp eph;thfk; epakdk; bra;jJ/ mnj gs;spapy; gFjpneuf; ifj;bjhHpyhrphpauhf epakdk; bra;ag;gl;l jpU/$p/me;njhzp vd;gtuhy; bjhlug;gl;l tHf;F brd;id cah;ePjpkd;wj;jpy; epYitapy; ,Ue;jjhYk;. mt;tHf;fpd; jPh;g;gpd;go. jpU/$p/me;njhzp vd;ghUf;F nkw;fhz; gs;spapy; bjhHpw;fy;tp Mrphpauhf epakd xg;g[jy; tH';fg;gl;ljhYk;. jpUkjp/rp/nkhp Rnyhr;rdh vd;ghh; bjhHpw;fy;tp Mrphpauhf bra;ag;gl;l epakdk; Vw;gspf;fg;gltpy;iy/ nkYk;. nkw;fhz; gs;spapy; gjpt[U vGj;juhf gzpg[hpe;J te;j jpU/vk;/n$hrg; vd;ghh; ,sepiy cjtpahsuhfg; gjtp cah;t[ tH';fg;gl;ljhy; Vw;gl;l gjpbtGj;jh; fhypg; gzpaplj;jpy; jpUkjp/ rp/nkhp Rnyhr;rdh vd;ghh; 09/08/2005 Kjy; rhh;e;j gs;sp eph;thfj;jhy; epakdk; bra;ag;gl;lhh;/ jpUkjp/ nkhp Rnyhr;rdh vd;ghiu gs;sp eph;thfk; gjpt[U vGj;juhf epakdk; bra;jij Vw;gspf;ff; nfhhp rhh;e;j gs;sp jhshsuhy; jf;fiy khtl;lf; fy;tp mYtyUf;F mDg;gg;gl;l 27/07/2006 ehspl;l fUj;JUf;fs;. jf;fiy khtl;lf; fy;tp mYtyuhy; epuhfhpf;fg;gl;lJ/ ,e;epiyapy;. ,g;gs;spapy; ,sepiy cjtpahsuhf gzpg[hpe;j jpU/vk;/n$hrg; vd;ghh; 30/04/2008 md;W Xa;t[ bgw;wjhy; fhypahd ,sepiy cjtpahsh; gzpaplj;jpy;. jpUkjp/rp/nkhp Rnyhr;rdh vd;ghiu 02/05/2008 Kjy; ,sepiy cjtpahsuhf eph;thfj;jhy; epakdk; bra;ag;gl;L. md;dhh; 02/05/2008 Kjy; bjhlh;e;J gzpg[hpe;J tUfpwhh;/ ,e;epakdKk; jf;fiy khtl;lf; fy;tp mYtyuhy; Vw;gspf;fg;gltpy;iy/ vdnt. jpUkjp/rp/nkhp Rnyhr;rdh vd;ghhpd; gjpt[U vGj;jh; epakdj;ij 09/08/2005 KjYk;. ,sepiy cjtpahsh; epakdj;jpid 02/05/2008 KjYk; Vw;gspg;g[ mspj;J Cjpak; tH';ff; nfhhp nkw;fhz; gs;sp eph;thfj;jhy;. brd;id cah;ePjpkd;w kJiuf; fpisapy; bjhlug;gl;l tHf;F ePjpg;nguhiz kD (vk;/o) vz;/1097-2009y; 10/02/2009k; ehspl;l nkny Kjyhtjhfg; gof;fg;gl;l jPh;g;ghizapy; kDjhuUf;F rhjfkhf jPh;g;g[ tH';fg;gl;lJ/ ,j;jPh;g;ghizapid vjph;j;J. Jiw rhh;gpy; jhf;fy; bra;ag;gl;l nky;KiwaPl;L kD brd;id cah;ePjpkd;w kJiuf; fpisahy; tH';fg;gl;l 25/11/2009k; ehspl;l nkny ,uz;lhtjhfg; gof;fg;gl;l jPh;g;ghizapy; js;Sgo bra;ag;gl;lJ/ 2/,e;epiyapy;. nkny. Kjyhtjhfg; gof;fg;gl;l jPh;g;ghizapid bray;gLj;Jk; bghUl;L. fd;dpahFkhp khtl;lk;. Mrhhpg;gs;sk;. g[dpj n$hrg; nky;epiyg; gs;spapy; mDkjpf;fg;gl;l gzpaplj;jpy;. eph;thfj;jhy; epakdk; bra;ag;gl;l jpUkjp/rp/nkhp Rnyhr;rdh vd;ghuJ epakdj;jpid 09/08/2005 Kjy; gjpt[U vGj;jh; gzpaplj;jpYk;. 02/05/2008 Kjy; ,sepiy cjtpahsh; gzpaplj;jpYk;. Vw;gspf;f VJthf. ,g;gzpapl';fis nkw;Fwpg;gpl;Ls;s ehs; Kjy; epug;gpl murpd; mDkjp Mizapid tH';FkhW nkny K:d;whtjhfg; gof;fg;gl;l foj';fspy; gs;spf; fy;tp ,af;Feh; muRf;F ghpe;Jiu bra;Js;shh;/ 3/nkny Kjyhtjhfg; gof;fg;gl;l jPh;g;ghizapid bray;gLj;j ntz;o. nkny K:d;whtjhfg; gof;fg;gl;l gs;spf; fy;tp ,af;Fehpd; ghpe;Jiuapid Vw;W. fd;dpahFkhp khtl;lk;. jf;fiy fy;tp khtl;lk;. Mrhhpg;gs;sk;. cjtpbgWk; g[dpj n$hrg; nky;epiyg; gs;spapy; mDkjpf;fg;gl;l gzpaplj;jpy;. eph;thfj;jhy; epakdk; bra;ag;gl;l jpUkjp/rp/nkhp Rnyhr;rdh vd;ghuJ epakdj;;jpid ,jid xU rpwg;g[ epfH;thff; fUjp. ntW ve;j epfH;tpw;Fk; Kd; epfH;thff; fUjf;TlhJ vd;w epge;jidf;Fl;gl;L. 09/08/2005 Kjy; gjpt[U vGj;jh; gzpaplj;jpYk;. 02/05/2008 Kjy; ,sepiy cjtpahsh; gzpaplj;jpYk; Vw;gspf;fyhk; vdf; fUjp. mt;thnw. mjd;bghUl;L. 02/05/2008 Kjy; ,sepiy cjtpahsh; gzpaplj;jpida[k; epug;gpl mDkjp tH';fp. muR MizapLfpwJ/ 4/,t;thiz epjpj;Jiwapd; m/rh/vz;/5942-fy;tp?2-2012. ehs;/12/03/2012y; bgwg;gl;l mj;Jiwapd; ,irt[ld; btspaplg;gLfpwJ/ (MSehpd; Mizg;go) j/rgpjh muR Kjd;ikr; brayhsh;"
28.From the above, it is clear that in compliance with the orders of this Court, the Government have issued the above orders in respect of similarly placed persons. Hence, we find every force in the submission of the learned counsel for the respondents/writ petitioners in this regard.
29.In view of the above, all the writ appeals filed by the State and its authorities are liable to be rejected. Accordingly, they are dismissed. No order as to costs. Connected miscellaneous petitions are also dismissed.
30.Coming to the review applications, we would like to reiterate that review is not an appeal in disguise. Review can be made only if there is any mistake or apparent error on the face of the record or there is any clerical error in the order sought to be reviewed. We deem it fit to consider few decisions on the point of review.
(i)The Hon'ble Supreme Court in Lily Thomas v. Union of India, reported in 2000 (6) SCC 224, while considering the scope of review and the limitations imposed on its exercise under Article 137 of the Constitution of India, held as follows:
?52. The dictionary meaning of the word "review" is the act of looking, offer, something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi & Ors. Vs. Pradyunmansinghji Arjunsinghji [AIR (1970) SC 1273], held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If 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 miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S.Nagaraj & Ors.etc. Vs. State of Karnataka & Anr.etc. [1993 Supp. (4) SCC 595] held:
"19. Review literally and even judicially means re- examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Law Choudhury v. Sukhraj Rai [AIR 1941 FC 1] the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117 that an order made by the Court was final and could not be altered:
'...nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common Law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in.... The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.?
Basis for exercise of the power was stated in the same decision as under:
'It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.' Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, for any other sufficient reason in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice."
The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength.
53. This Court in M/s.Northern India Caterers (India) Ltd. Vs. Lt.Governor of Delhi [AIR 1980 SC 674] considered the powers of this Court under Article 137 of the Constitution read with Order 47 Rule 1 CPC and Order 40 Rule 1 of the Supreme Court Rules and held:
"It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933 at p.948. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing. G.L. Gupta v. D.N. Mehta, (1971) 3 SCR 748 at p.760. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O.N.Mohindroo v. Dist. Judge, Delhi, (1971) 2 SCR 11 at p.27. Power to review its judgments has been conferred on the Supreme Court by Art.137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Art.145. In a civil proceeding, an application for review is entertained only on a ground mentioned in O. XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL, R.1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. Chandra Kanta v. Sheikh Habib (1975) 3 SCR 935."
54. Article 137 empowers this Court to review its judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the Constitution. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the ground specified in Order 47 Rule 1 of the Code of Civil Procedure which provides:
"Application for review of judgment -(1) Any person considering himself aggrieved -
(a) by a decree or order from which an appeal is allowed, but from which, no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."
Under Order 40 Rule 1 of the Supreme Court Rules no review lies except on the ground of error apparent on the face of the record in criminal cases.?
(ii)In Aribam Tuleshwar Sharma v. Aibam Pishak Sharma , reported in AIR 1979 SC 1047, the Supreme Court has held that, "there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court."
(iii)In yet another decision in RAJINDERSINGH Vs. Lt. GOVERNOR, reported in 2005 (13) SCC 289, at paragraph Nos.15 and 16, the Hon'ble Supreme Court held that law is well settled that the power of judicial review of its own order by the High Court inheres in every Court of plenary jurisdiction to prevent miscarriage of justice. Power of judicial review extends to correct all errors to prevent miscarriage of justice. It was further held that Courts should not hesitate to review their own earlier order, when there exists an error on the face of record and the interest of justice so demands in appropriate cases.
(iv)In Union of India v. Kamal Sengupta reported in 2008 (8) SCC 612, the Hon'ble Supreme Court, at Paragraphs 14 and 15, has held that, "14. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justiciae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier.
15. The term `mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while exercising the power of review, the concerned Court/Tribunal cannot sit in appeal over its judgment/decision."
31.Reverting back to the case on hand, the review petitioners/appellants have not raised any ground falling within Section 114 read with Rule 1 of CPC for reviewing the order. Since the grounds in the review applications are similar to the grounds raised in the writ appeals and as we have rejected those grounds, the present review applications are also dismissed. No order as to costs. Connected miscellaneous petitions are also dismissed.
To:
1.The Secretary to Government, Education Department, Stte of Tamil Nadu, Fort St.George, Chennai-9.
2.The Director of School Education, College Road, Chennai-6.
3.The District Educational Officer, Tirunelveli.