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2004 DIGILAW 276 (MAD)

State of Tamil Nadu & Others v. R. C. Vijayalakshmi & Another

2004-02-24

M.KARPAGAVINAYAGAM, R.JAYASIMHA BABU

body2004
Judgment :- M. Karpagavinayagam, J. The order dated 5.9.2001 passed by the Tribunal in the Review Application in R.A.No.9 of 2000 in O.A.No.1892 of 2000, directing the second respondent, the Director of Collegiate Education, to give an order of posting to R.C.Vijayalakshmi, the first respondent herein, posting her as Junior Assistant-cum-Typist in the vacancy available anywhere in Tamil Nadu, is sought to be quashed in this writ petition seeking for issuance of a writ of certiorari. 2. This case has got a chequered history. (a) R.C.Vijayalakshmi, the first respondent herein was temporarily appointed as Junior Assistant-cum-Typist under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Services Rules, on 15.10.1990 in the Office of the Regional Joint Director of Collegiate Education, Coimbatore, the third respondent herein. The post of Junior Assistant-cum-Typist in the Tamil Nadu Ministerial Services Rules comes under the purview of the Tamil Nadu Public Service Commission (TNPSC). (b) For making regular appointment of the Junior Assistants working in various Departments, TNPSC conducted special test in May 1995. The first respondent herein appeared for the special test. However, she could not come out successful. Consequently, she was not selected for the post. Having known the result, the first respondent herein filed O.A.No.3093 of 1996 before the Tribunal, seeking for a direction to the Director of Collegiate Education to regularise her service. Pending O.A.No.3093 of 1996, the Tribunal, by the interim order dated 21.6.1996 directed that the first respondent shall not be ousted from the service till the regular candidates selected by TNPSC are appointed. (c) Thereafter, another examination was held by TNPSC in March 1997 for recruitment of Junior Assistant-cum-Typist and the first respondent appeared in that examination. This time also, she did not pass the test and so, she was not selected. In the meantime, the first respondent withdrew the main application in O.A.No.3093 of 1996 and got the same dismissed as withdrawn by the Tribunal on 6.1.1998. (d) Consequent to the dismissal of O.A.No.3093 of 1996, proceedings dated 5.2.1998 were issued by the Joint Director of Collegiate Education, Coimbatore ousting the first respondent from service. Once again, the first respondent filed an application in O.A.No.956 of 1998 before the Tribunal for the same relief, namely to regularise her service as Junior Assistant-cum-Typist. (d) Consequent to the dismissal of O.A.No.3093 of 1996, proceedings dated 5.2.1998 were issued by the Joint Director of Collegiate Education, Coimbatore ousting the first respondent from service. Once again, the first respondent filed an application in O.A.No.956 of 1998 before the Tribunal for the same relief, namely to regularise her service as Junior Assistant-cum-Typist. The Tribunal entertained this application and passed an interim order on 5.2.1998, directing the petitioners not to terminate the service of the first respondent till the appointment of the regular candidates selected by TNPSC. In pursuance of this interim order, the first respondent was permitted to join duty and accordingly, she joined duty. (e) On 20.1.1999, TNPSC appointed one K.Sivakumar as Junior Assistant-cum-Typist in the place of the first respondent herein. Consequently, the first respondent was terminated with effect from 15.2.1999. This time, the first respondent chose to approach this Court instead of approaching the Tribunal. Accordingly, she filed a writ petition in W.P.No.7797 of 1999, challenging the order of termination of the first respondent. This writ petition was subsequently transferred to the Tribunal and re-numbered as T.A.No.143 of 1999. Meanwhile, she sent a representation to the petitioners for her reinstatement on 22.3.1999. When the matter came up on 11.10.1999 before the Tribunal, the first respondent, withdrew T.A.No.143 of 1999 and accordingly, the same was dismissed. (f) Even though the order of termination dated 15.2.1999 was challenged in the earlier writ petition, which was subsequently withdrawn from the Tribunal on 11.10.1999, the first respondent again filed a separate application in O.A.Diary No.5401 of 1999, challenging the order of termination dated 15.2.1999. In this application, the Tribunal, by the order dated 8.6.1999, directed the Director of Collegiate Education to dispose of the representation made by the first respondent. (g) In the light of the direction issued by the Tribunal, the second petitioner considered the representation and rejected the same, by his order dated 3.9.1999. Challenging the same, the first respondent filed O.A.No.1892 of 2000 before the Tribunal. (g) In the light of the direction issued by the Tribunal, the second petitioner considered the representation and rejected the same, by his order dated 3.9.1999. Challenging the same, the first respondent filed O.A.No.1892 of 2000 before the Tribunal. The Tribunal took up both O.A.No.956 of 1998 and O.A.No.1892 of 2000 and passed a common order on 24.4.2000, holding that the first respondent cannot claim regularisation or reinstatement as a matter of right, since she was appointed under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Services Rules and however, the petitioners may consider the case of the first respondent for appointment as Junior Assistant-cum-Typist in and around Erode, if any such vacancy is available. (h) The second petitioner accordingly considered the case of the first respondent and rejected her request for appointment as there are no vacancies for the post of Junior Assistant-cum-Typist in and around Erode. In that context, the first respondent filed Review Application in R.A.No.9 of 2000 in O.A.No.1892 of 2000, seeking review of the earlier order of the Tribunal dated 24.4.2000, asking the Tribunal to give a direction to the second petitioner to give posting to the first respondent as Junior Assistant-cum-Typist in the vacancy available anywhere in the State of Tamil Nadu. (i) The Tribunal, by the order dated 5.9.2001, "graciously" granted the relief sought for by the first respondent and directed the second petitioner to give an order of posting to the first respondent if any vacancy is available anywhere in Tamil Nadu, within a period of eight weeks from that date. This order of the Tribunal is under challenge before this Court in this writ petition. 3. We have heard Mr.S.T.S.Moorthy, learned Special Government Pleader for the petitioners and Mr.C.Selvaraju for the first respondent. 4. At the outset, it shall be stated that the chronological events narrated above would indicate that the first respondent, who was appointed temporarily under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Services Rules, has fully abused the process of the Tribunal by getting orders after orders from the Tribunal in her favour, without even passing the tests that were conducted by TNPSC in May 1995 and March 1997. It is quite unfortunate to see that the Tribunal, in the common order dated 24.4.2000 in O.A.Nos.956 of 1998 and 1892 of 2000, although held that the first respondent would not be entitled for regularisation of her service, gave a direction to the petitioners to consider the claim of the first respondent for appointment as Junior Assistant-cum-Typist in and around Erode if vacancy is available. We are surprised to note that the Tribunal had "gracefully" forgotten the fact that the first respondent, who had filed O.A.No.3093 of 1996 and T.A.No.143 of 1999, seeking for regularisation of her service and having withdrawn the applications on 6.1.1998 and 11.10.1999 respectively, had chosen to file another application seeking for the same relief in O.A.No.956 of 1998. How was it entertained? 5. A perusal of the common order in O.A.No.956 of 1998 and O.A.No.1892 of 2000, dated 24.4.2000 and the order passed in Review Application in R.A.No.9 of 2000 dated 5.9.2001, clearly indicate that both are contradictory to each other. Though in the first order dated 24.4.2000, the Tribunal observed that the first respondent cannot claim regularisation of her service, it gave a direction to the petitioners to consider the case of the first respondent for appointment as Junior Assistant-cum-Typist in and around Erode. In the Review Application filed by the first respondent, the Tribunal, by the order dated 5.9.2001, without going into the merits of the case, simply gave a direction to the effect that she shall be appointed in the vacancy anywhere in Tamil Nadu. The same reads as follows: "The second respondent is directed to give posting order to the petitioner, posting her as Junior Assistant cum Typist, if any vacancy is available in Tamil Nadu, within a period of 8 weeks from today." The strange feature that we could notice from the order dated 5.9.2001 is that the Government Advocate himself gave a concession by representing that such a direction could be issued to the second petitioner herein. To quote, "3. Mr.T.P.Thirumoorthy, Government Advocate intervened and stated that the 2nd respondent may be directed to post the petitioner anywhere in Tamil Nadu, if any vacancy is available to the post of Junior Assistant cum Typist." 6. The Tribunal has to consider the Review Application only on merits and not to be acted upon by the mere concession given by the Government Advocate. The Tribunal has to consider the Review Application only on merits and not to be acted upon by the mere concession given by the Government Advocate. The very fact that the State has chosen to file the writ petition before this Court, challenging the Review Order dated 5.9.2001, would itself indicate that Mr.P.T.Thirumoorthy, the then Government Advocate would not have been given any instruction by the State to suggest to the Tribunal to give such a direction to the second petitioner. The order dated 5.9.2001 shows that the Government Advocate has not made any objection with reference to the maintainability of the Review Application and never cared to argue the matter on merits. On the other hand, it is noticed that the Government Advocate was a party to a wrong order passed by the Tribunal for giving direction to the petitioners-State to give an order of posting, even though she has not passed the tests conducted by TNPSC in the years 1995 and 1997. The Government Advocate on whom the State has reposed confidence, should endeavour his best to protect the interest of the State and assist the Tribunal to pass appropriate legal order. Obviously, this has not been done. We are unable to appreciate both the conduct of the then Government Advocate and the impugned order which has been hurriedly passed by the Tribunal by giving a direction to the second petitioner to give posting to the first respondent as Junior Assistant-cum-Typist in any one of the vacancies anywhere in Tamil Nadu, even without considering the question whether it was maintainable at all. 7. It is settled law that 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. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of errors committed by the subordinate Court. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. It is exercised to remove the error and not for disturbing finality. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. It is exercised to remove the error and not for disturbing finality. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47 Rule 1 of the Civil Procedure Code. A review cannot be sought merely for a fresh hearing or arguments or correction of an erroneous view taken earlier. The power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. Unfortunately, the Tribunal has failed to follow these principles laid down by the Apex Court in (i) Thungabhadra Industries Limited vs. Government of Andhra Pradesh ( AIR 1964 SC 1372 ); (ii) Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma and others ( AIR 1979 SC 1047 ); (iii) S.Nagaraj and others vs. State of Karnataka (JT 1993 (5) SC 27) and (iv) Ajit Kumar Rath vs. State of Orissa and others ( 1999 (9) SCC 596 ). 8. We are constrained to observe that the nature of the impugned order and the wordings contained therein would indicate that the Tribunal had taken the role of an appointing authority for issuing appointment orders to the persons whoever come and tap the doors of the Tribunal. As such, this Court is to hold that the positive direction given by the Tribunal to appoint the first respondent as Junior Assistant-cum-Typist in any one of the vacancies anywhere in Tamil Nadu, even though she, having experience from 1990 as Junior Assistant-cum-Typist, has failed to get through the two tests conducted by TNPSC in the years 1995 and 1997, cannot be said to be a valid one passed in accordance with law. Consequently, the impugned order is set aside. 9. The writ petition is allowed. No costs.