Madras High Court
The Secretary To Government vs E.V.Sivakumar on 28 July, 2023
Author: D.Krishnakumar
Bench: D.Krishnakumar, P.D.Audikesavalu
Review Application (MD) Nos. 14 and 15 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 01.03.2023 Pronounced on : 28.07.2023
CORAM :
THE HON'BLE MR.JUSTICE D.KRISHNAKUMAR
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
Review Application (MD) Nos. 14 and 15 of 2023
and
C.M.P. (MD) No. 2653 of 2023
Review Application (MD) No. 14 of 2023:-
1. The Secretary to Government
Department of Highways & Minor Ports
Secretariat, Chennai – 600009.
2. The Director General (Highways)
Department of Highways
Chepauk, Chennai – 600005.
3. The Chief Engineer (Production & Maintenance)
Department of Highways
Chepauk, Chennai – 600005. … Petitioners/Appellants
/Respondents
-vs-
E.V.Sivakumar ... Respondent/Respondent
/Petitioner
____________
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Review Application (MD) Nos. 14 and 15 of 2023
Prayer:- Review Application filed under Section 114 read with Order
XLVII Rule 1 of Code of Civil Procedure, 1908 praying to review the
judgment dated 06.12.2018 made in W.A. (MD) No. 937 of 2018.
For Petitioners : Mr. P.T.Thiraviam
Government Advocate
For Respondent : Mr. G.Thalaimutharasu
Review Application (MD) No. 15 of 2023:-
E.V.Sivakumar ... Petitioner/Respondent
/Petitioner
-vs-
1. The Secretary to Government
Department of Highways & Minor Ports
Secretariat, Chennai – 600009.
2. The Director General (Highways)
Department of Highways
Chepauk, Chennai – 600005.
3. The Chief Engineer (Production & Maintenance)
Department of Highways
Chepauk, Chennai – 600005. …Respondents/Appellants
/Respondents
Prayer:- Review Application filed under Section 114 read with Order
XLVII Rule 1 of Code of Civil Procedure, 1908 praying to review the
judgment dated 06.12.2018 made in W.A. (MD) No. 937 of 2018.
For Petitioner : Mr. K.Gurunathan
For Mr. G.Thalaimutharasu
For Respondents : Mr. P.T.Thiraviam
Government Advocate
____________
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Review Application (MD) Nos. 14 and 15 of 2023
COMMON JUDGMENT
(Judgment of the Court was made by P.D. AUDIKESAVALU, J.) These Review Applications have been preferred under Section 114 read with Order XLVII of Code of Civil Procedure, 1908 against the judgment dated 06.12.2018 in W.A.(MD) No. 937 of 2018 passed by the Division Bench of this Court. The said appeal in W.A. (MD) No. 937 of 2018 arose out of the order dated 15.02.2017 in the Writ Petition in W.P.(MD) No. 3642 of 2011 passed by the Learned Judge of this Court. The parties are hereinafter referred to as per their description in W.P.(MD) No. 3642 of 2011 for the sake of clarity and convenience.
2. The chronological sequence of events leading to the filing of these Review Applications are narrated below:-
(i) The Petitioner was appointed on compassionate grounds as Record Clerk on 18.06.1986 in the Highways and Rural Development Department of the Government of Tamil Nadu and he was promoted to the post of Junior Assistant on ____________ Page of 3 of 15 https://www.mhc.tn.gov.in/judis Review Application (MD) Nos. 14 and 15 of 2023 20.09.2010 when he acquired the required qualification for the same.
(ii) The Writ Petition in W.P.(MD) No. 3642 of 2011 was filed by the Petitioner claiming the benefit of G.O. Ms. No. 1499, Labour and Employment (Q1) Department dated 03.08.1989 by which, according to him, he ought to have been initially appointed as Junior Assistant instead of Record Clerk and he would be entitled to all consequential monetary and attendant benefits.
(iii) The Writ Court by order dated 15.02.2017 passed in W.P.(MD) No. 3642 of 2011 granted the said benefits.
(iv) On appeal preferred by the Respondents, the Division Bench of this Court by order dated 06.12.2018 in W.A.(MD) No. 937 of 2018 held that the Petitioner would not be entitled to the benefits of the said Governmental Order in G.O. Ms. No. 1499, Labour and Employment Department dated 03.08.1989, but as the order passed by the Writ Court had already been implemented by them, it did not require any interference. ____________ Page of 4 of 15 https://www.mhc.tn.gov.in/judis Review Application (MD) Nos. 14 and 15 of 2023
(v) the Review Applications in Review Application (MD) No. 14 of 2023 is filed by the Respondents in the Writ Petition and Review Application (MD) No. 15 of 2023 is filed by the Petitioner in the Writ Petition.
3. We have heard Mr. K.Gurunathan and Mr. G.Thalaimutharasu, Learned Counsel for the Petitioner and Mr. P.T.Thiraviam, Learned Government Advocate appearing for the Respondents and perused the materials placed on record, apart from the pleadings of the parties.
4. Before proceeding further, it would be necessary to recount the legal principles governing the ambit and scope of review under Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure, 1908, as succinctly culled out by the Hon’ble Supreme Court of India in Kamlesh Verma –vs- Mayavati [(2013) 8 SCC 320], after referring to earlier binding decisions on that subject, as follows:-
____________ Page of 5 of 15 https://www.mhc.tn.gov.in/judis Review Application (MD) Nos. 14 and 15 of 2023 “ Summary of the Principles:
20. Thus, in view of above, the following grounds of review are maintainable as stipulated by the statute: 20.1. When the review will be maintainable:-
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the Petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of record;
(iii) Any other sufficient reason. The words “any other sufficient reason” has been interpreted to mean a reason sufficient on grounds at least analogous to those specified in the rule.
20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
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(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.” ____________ Page of 7 of 15 https://www.mhc.tn.gov.in/judis Review Application (MD) Nos. 14 and 15 of 2023
5. The Petitioner in the Writ Petition has filed Review Application (MD) No. 15 of 2023 seeking to reconsider the order passed in the Writ Appeal insofar as it quashes clause no. (1) of G.O. Ms. No. 1499, Labour and Employment (Q1) Department dated 03.08.1989 issued by the Government of Tamil Nadu, which provides that Record Clerks, Office Assistants and Sweepers appointed on compassionate grounds can be given appointment retrospectively as Junior Assistants, taking into account the initial appointment, as it is in contravention of the provisions of the Constitution and more particularly, Articles 14 and 16, besides Regulation 16(b) of the Tamil Nadu Public Service Commission Regulations, 1954. The Division Bench, while arriving at that conclusion, has elaborately discussed the matter as follows:-
“5. We have perused the Government Order in G.O.Ms.No. 1499, Labour and Employment Department, dated 03 August, 1989. The Government Order in G.O.Ms.No.1499, Labour and Employment Department, dated 03 August, 1989 was issued by way ____________ Page of 8 of 15 https://www.mhc.tn.gov.in/judis Review Application (MD) Nos. 14 and 15 of 2023 of clarification, taking into account the earlier Government Orders in G.O.Ms.No.225, Labour and Employment, dated 15 February, 1972, G.O.Ms.No. 560, Labour and Employment, dated 03 August, 1977 and G.O.Ms.No.444, Labour and Employment, dated 23 February, 1981 respectively.
6. The Government found that there was discontent, when compassionate appointments were made in the post of Record Clerk and later, they were eligible for appointment to the post of Junior Assistant. However, others who were also similarly situated were appointed only as Office Assistants and they were not considered for appointment to the post of Junior Assistants. It was only to remove the discontent among the dependents entitled for appointment as basic servants, the Government issued an order in G.O.Ms.No.1499, Labour and Employment Department, dated 03 August, 1989. The Government permitted the appointment as ____________ Page of 9 of 15 https://www.mhc.tn.gov.in/judis Review Application (MD) Nos. 14 and 15 of 2023 Junior Assistant, in case the candidates acquired the required qualification. The concession was given only to those who have been appointed to a lower post, like Record Clerk, Office Assistant and Sweeper, etc.
7. The respondent never made a claim for appointment to the post of Junior Assistant at the time of his initial appointment. The respondent worked for years together in the post of Record Clerk and thereafter, he got promotion to the post of Junior Assistant. It was only thereafter he made a claim for retrospective appointment in the post of Junior Assistant, taking into account the date of his initial appointment.
8. The Government Order in G.O.Ms.No.1499, Labour and Employment Department, dated 03 August, 1989 would go against the principles laid down by the Courts in the matter of compassionate appointment.
____________ Page of 10 of 15 https://www.mhc.tn.gov.in/judis Review Application (MD) Nos. 14 and 15 of 2023 The compassionate appointment is given to help the family of the deceased employee to tide over the temporary difficulties. The qualification of the dependent claiming compassionate appointment is not the relevant consideration for making appointment on compassionate ground. The post of Junior Assistant would come within the purview of the Tamil Nadu Public Service Commission. The employer must, therefore, obtain the concurrence of the Public Service Commission for making appointment to the post of Junior Assistant. This is made mandatory by Regulation 16(b) of the Tamil Nadu Public Service Commission Regulations, 1954. The Government Order in G.O.Ms.No.1499, Labour and Employment Department, dated 03 August, 1989 would go against the principle of equality in public employment. Even otherwise, there must be a post of Junior Assistant at the time of giving compassionate appointment. There is no question of appointing a person to a post on ____________ Page of 11 of 15 https://www.mhc.tn.gov.in/judis Review Application (MD) Nos. 14 and 15 of 2023 compassionate basis, which requires concurrence of the Tamil Nadu Public Service Commission. The Government Order in G.O.Ms.No.1499, Labour and Employment Department, dated 03 August, 1989 is, therefore, hit by Regulation 16(b) of the Tamil Nadu Public Service Commission Regulations, 1954, as the said Government Order proceeds as if even without such concurrence, initial appointment could be made in the post of Junior Assistant....” On a reading of the said passages, there does not appear to be any error apparent on the face of the record warranting correction by way of review. None of the grounds in the memorandum of review filed by the Petitioner fall within the contours within which the powers of review could be undertaken and on the contrary, they demonstrably relate to aspects, which are barred for consideration.
6. The contention raised by the Respondents in the Writ Petition in Review Application (MD) No. 14 of 2023 is that the observation of this Court that the order dated 15.02.2017 in W.P.(MD) No. 3642 of ____________ Page of 12 of 15 https://www.mhc.tn.gov.in/judis Review Application (MD) Nos. 14 and 15 of 2023 2011 had been implemented at the time when the final order was passed in the Writ Appeal, is factually incorrect. It would assume significance here that neither at the time of disposing the Writ Appeal nor even now there is any material available on record to infer the same, which is certainly an error apparent on the face of the record in the order dated 06.12.2018 passed in W.A.(MD) No. 937 of 2018 that requires to be modified. In other words, the Petitioner would not be entitled to any relief in the Writ Petition, which shall stand dismissed in its entirety.
In view of the foregoing discussion, Review Application (MD) No. 14 of 2023 is allowed and Review Application (MD) No. 15 of 2023 is dismissed. Consequently, the connected Miscellaneous Petition is closed. No costs.
(D.K.K., J.) (P.D.A., J.)
28.07.2023
Maya
Index : Yes/No
NCS : Yes/No
____________
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1. The Secretary to Government Department of Highways & Minor Ports Secretariat, Chennai – 600009.
2. The Director General (Highways) Department of Highways Chepauk, Chennai – 600005.
3. The Chief Engineer (Production & Maintenance) Department of Highways Chepauk, Chennai – 600005.
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AND P.D.AUDIKESAVALU, J.
Maya Rev.Aplc.(MD) Nos. 14 and 15 of 2023 and C.M.P. (MD) No. 2653 of 2023 Reserved on : 01.03.2023 Pronounced on : 28.07.2023 ____________ Page of 15 of 15 https://www.mhc.tn.gov.in/judis