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2014 DIGILAW 3289 (MAD)

Secretary, Bishop Heber College, Puthur, Tiruchirappalli v. Kathiresh

2014-09-12

M.JAICHANDREN, R.MAHADEVAN

body2014
Judgment : R. Mahadevan, J. 1. Since common issues are arising for the consideration of this Court, both the Writ Appeal and the Review Application are heard together and a Common Judgment is being passed. 2. The Writ Appeal is directed against the order of the learned Judge, dated 19.11.2010, made in W.P.(MD).No.8294 of 2009, dismissing the Writ Petition filed by the first respondent herein. 3. Seeking to review the Judgment, dated 24.03.2011, made in W.A.[MD].No.89 of 2011, the Review Petitioner, who is the third respondent in the said Writ Appeal, has come up with the present Review Application. 4. The first respondent herein filed the Writ Petition, in W.P.[MD].No.8294 of 2009, challenging the order of the second respondent therein, dated 14.08.2009, and for a direction to the respondents 1 and 2 to approve the proposal, dated 22.05.2008, submitted by the appellant herein, by transferring him from the post of Steno Typist. 5. The facts of the case, in a nutshell, are that the first respondent herein was a senior most among the non-teaching staff, working as Steno Typists in the Selection Grade. The Review Petitioner, which is an aided minority college, sent a proposal to the third respondent herein stating that one A.Selvaraj, working as an Assistant in the Review Petitioner college, retired from service, on 30.04.2008 and in the said vacancy, the first respondent herein was transferred and appointed as an Assistant, with effect from 02.05.2008. The third respondent, referring to the order of the second respondent herein, dated 05.02.1988, stated that the question of appointment, by transfer, will not arise, and accordingly, the third respondent rejected the proposal submitted by the Review Petitioner herein. Assailing the correctness of the said order, the first respondent herein filed W.P.[MD].No.8294 of 2009, which was dismissed, by the learned Judge, on 19.11.2010, which is under challenge in W.A[MD].No.553 of 2012 by the Review Petitioner college. 6. Assailing the correctness of the said order, dated 19.11.2010, made in W.P.[MD].No.8294 of 2009, the first respondent herein filed W.A.[MD].No.89 of 2011, which was disposed of, by a Division Bench of this Court, on 24.03.2011, thereby setting aside the order of the third respondent, dated 14.08.2009, as well as the order of the learned Judge, dated 19.11.2010. Seeking to review the Judgment, dated 24.03.2011, the Review Petitioner college has come up with Review Application [MD].No.38 of 2011. 7. Seeking to review the Judgment, dated 24.03.2011, the Review Petitioner college has come up with Review Application [MD].No.38 of 2011. 7. The learned counsel appearing on behalf of the Review Petitioner submits that by virtue of the Government Order, issued in G.O.Ms.No.34, Personnel and Administrative Reforms Department, dated 21.02.2001, only 5% of the post of Assistant is earmarked for the post of Steno Typist Grade III and this fact has not been taken into consideration by the Division Bench, while setting aside the order of the learned Judge, as well as the order of the third respondent, dated 14.08.2009. He further submits that the Division Bench has also not taken into consideration the amendment made to the Special Rules for the Tamil Nadu Ministerial Service, in this aspect. Based on the above, the learned counsel seeks for reviewing the Judgment of the Division Bench. 8. The learned counsel appearing on behalf of the first respondent submits that a plain reading of Paragraph No.3 of clause No.III of the Government Order, issued in G.O.Ms.No.34, Personnel and Administrative Reforms Department, dated 21.02.2001, makes it manifestly clear that a Steno Typist can be posted as an Assistant. In the said Government Order, it is stated that as the pay of Steno Typist Grade III and the Assistant is one and the same, such appointment as Assistant, by transfer, from the post of Steno Typist Grade III can be considered. The learned counsel, therefore, submits that the grounds raised by the Review Petitioner, in the present Review Application, have been discussed by the Division Bench, and thus, the Judgment of the Division Bench does not require any review. Hence, he prays for the dismissal of the Review Application. 9. We have considered the above submissions made by the learned counsel appearing on behalf of the Review Petitioner, the learned counsel appearing on behalf of the first respondent, the learned Special Government Pleader appearing on behalf of the official respondents and perused the records carefully. 10. Before venturing into any discussion on the rival contentions, we may point out that the power of this Court, in matters of review, is very limited. Such power can be exercised only when there is error apparent on the face of the record or in the event an order is not reviewed, it would amount to miscarriage of justice. 11. Before venturing into any discussion on the rival contentions, we may point out that the power of this Court, in matters of review, is very limited. Such power can be exercised only when there is error apparent on the face of the record or in the event an order is not reviewed, it would amount to miscarriage of justice. 11. In the case on hand, a reading of the Judgment of the Division Bench would make it abundantly clear that the Division Bench, in Paragraph Nos.4, 5 and 6 of the Judgment, dated 24.03.2011, made in W.A.[MD].No.89 of 2011, has considered all the grounds now raised by the Review Petitioner in the Review Application. There is nothing on record to show that there is an error apparent on the face of record. We do not find any reason to take a different view than the one taken by the Division Bench. Moreover, when there is no error apparent on the face of record, the Review Applications need not be entertained, in the light of the Judgment of a Division Bench of this Court, in Union of India, rep by the Senior Divisional Commercial Manager, Chennai, Vs. The Registrar, Central Administrative Tribunal, Madras Bench, reported in, wherein the Division Benchhas made a complete survey of several Judgments of the Supreme Court, on this question, and has ultimately, in Paragraph No.10, held as follows:- "In yet another Judgment reported in 2013 (8) SCC 320 , [Kamlesh Verma Vs. Mayawati and others], the Hon'ble Apex Court, after examining various Judgments passed earlier has held as follows" "12. This Court has repeatedly held in various Judgments that the jurisdiction and scope of review is not that of an appeal and it can be entertained only there is an error apparent on the face of record. A mere repetition through different counsel, of old and over rulled arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient......." In the above Judgment, the Hon'ble Apex Court has laid down the principles as under: "19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XL VII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the Judgment cannot be the ground for invoking the same. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XL VII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the Judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned Judgment in the guise that an alternative view is possible under the review jurisdiction. Summary of the principles: 20. Thus, in view of the 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 in Chhajju Ram Vs. Neki, AIR 1922 PC 112 and approved by this Court inMoran Mar Basselios Catholicos Vs. Most Rev.Mar Poulose Athanasius & others [1955] 1 SCR 520, to mean, "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India Vs. Sandur Manganese & Iron Ores Ltd., ors., JT (2013) 8 SC 275. 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. (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, undermine 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). (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." 12. Applying the said legal principles to the facts of the present case, if we analyze the grounds of review, we find no error apparent on record in the Judgment of the Division Bench. Thus, the Review Application is liable to be dismissed. Accordingly, the Review Application stands dismissed. In view of the dismissal of the Review Application, and following the Judgment, dated 24.03.2011, made in W.A.[MD].No.89 of 2011, the Writ Appeal, in W.A.[MD].No.553 of 2012, also stands dismissed. No costs. Consequently, connected Miscellaneous Petitions are also dismissed.