Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3545 (MAD)

M. Chandra Mohan v. Sunil Paliwal

2018-10-05

R.SUBBIAH

body2018
JUDGMENT R. Subbiah, J. The Contempt Petition has been filed by the Petitioner complaining non-compliance of the Order dated 03.11.2016 passed in WP No. 33565 of 2014. The respondents in the above Contempt Petition have filed the Review Application seeking to review the Order dated 03.11.2016 passed in WP No. 33565 of 2014. Thus, the issue arise for consideration in the Contempt Petition as well as the Review Application are one and the same and therefore, they are taken up for hearing together and are disposed of by this common order. 2. The Petitioner in Contempt Petition No. 1245 of 2017 has filed WP No. 33565 of 2014 praying to issue a Writ of Declaration declaring that his non-selection to the post of Assistant Professor of Physics in the Government Arts and Science College in Tamil Nadu College Education Service by direct recruitment in pursuance of the notification No. 4 of 2013 dated 28.05.2013 as null and void and to direct the respondents therein to award 15 marks for his teaching experience, select and to appoint him to the post of Assistant Professor of Physics. 3. According to the petitioner in the Contempt Petition, he passed B.Sc., (Physics) during the year 1986, pursued M.Sc., Physics and completed it in the year 1989 and also M.Phil., during January 1998 from Bharathiyar University. He also did his Philosophy under the Faculty of Science and Humanity from Anna University and obtained Doctoral Degree in 2012. He served in various institutions and acquired teaching experience. While so, the third respondent invited applications from eligible candidates for selection and appointment, by direct recruitment, to the post of Assistant Professor in Government Arts and Science Colleges in Tamil Nadu College Education Service and he applied for the said post as a candidate under the Backward Class Community. As per the prospectus, for teaching experience - 11 marks were prescribed, 9 marks were earmarked for educational qualification and another 8 marks for performance in the interview. According to the petitioner, he possess 21 years of teaching experience in Physics Subject and he is entitled for 15 marks towards teaching experience. Even though the petitioner was given the full marks for having possessed teaching experience, the grievance of the petitioner is that he is entitled for 15 marks befitting his teaching experience, but it was not considered by the respondents. 4. Even though the petitioner was given the full marks for having possessed teaching experience, the grievance of the petitioner is that he is entitled for 15 marks befitting his teaching experience, but it was not considered by the respondents. 4. The writ petition was resisted by the respondents by contending that the petitioner was conferred with full marks, however, since he did not come within the zone of consideration by securing the cut off marks fixed by the Board, he is not entitled for the selection and appointment to the post of Assistant Professor in Physics. 5. When the writ petition was taken up for hearing, the counsel for the petitioner relied on the earlier order passed by this Court on 12.07.2013 in identical case in WP (MD) No. 18186 of 2013. It was further stated that following the aforesaid order dated 12.07.2013, yet another order was passed in WP (MD) No. 20173 of 2014 (M. Pottiammal vs. The Secretary, Higher Education Department, Fort St. George, Chennai and Others) and submitted that a direction may be issued to the respondents to count the teaching experience of the petitioner and award appropriate marks for the same. Having regard to the above said orders relied on by the counsel for the petitioner, which were passed by this Court in identical circumstances, this Court allowed the writ petition filed by the petitioner on 03.11.2016 by issuing the following directions:- "13. Hence, the above observations of this Court in WP (MD) No. 20173 of 2014, would apply to the case of the petitioner in the present writ petition also. Accordingly, this Writ Petition is allowed. The respondents are directed to count the teaching experience of the petitioner from 31.07.2002 onwards and award appropriate marks for the same and consequently, based on the marks obtained by the petitioner, the respondents shall pass appropriate orders appointing the petitioner in the post of Assistant Professor, if he is eligible based on the marks so obtained. Such exercise shall be done by the respondents within a period of eight weeks from the date of receipt of a copy of this order." 6. According to the petitioner in the Contempt Petition, the aforesaid order dated 03.11.2016 in WP No. 33565 of 2014 has not been complied with by the respondents and therefore, he filed the Contempt Petition. 7. According to the petitioner in the Contempt Petition, the aforesaid order dated 03.11.2016 in WP No. 33565 of 2014 has not been complied with by the respondents and therefore, he filed the Contempt Petition. 7. The Review Applicants, who are the respondents in WP No. 33565 of 2014, have filed Review Application No. 66 of 2018 contending inter alia that the order dated 02.11.2016 was passed by this Court by following the earlier order dated 12.07.2013 passed in WP (MD) No. 18186 of 2013. However, according to the learned Additional Advocate General appearing for the Review Applicants, since there were some error crept while passing the order dated 12.07.2013 in WP (MD) No. 18186 of 2013, at the instance of the Review Applicants, a mentioning was made on 23.07.2013 and a modified order was passed, modifying para No.20 of the order dated 12.07.2013 in WP (MD) No. 18186 of 2013 as far as Serial No.4 is concerned, which deals with the reckoning of teaching experience possessed by a candidate. Accordingly, by the modified order dated 23.07.2013, this Court directed to consider the teaching experience if the candidate who completed the M.Phil course on or before 31.12.2012. Therefore, according to the counsel for the Review Applicants, in view of the subsequent order dated 23.07.2013 passed by this Court in WP (MD) No. 18186 of 2013, the order dated 03.11.2016 in WP No. 33565 of 2014 has to be reviewed. It is also contended that at the time when the order dated 03.11.2016 was passed by this Court, the subsequent order dated 23.07.2013 has not been brought to the notice of this Court and therefore also, the Review Applicants prayed for allowing the Review Application. 8. In reply, the learned counsel for the Petitioner in the Contempt Petition would contend that the issue relating to counting of teaching experience is no longer res integra as it was settled by the Division Bench of this Court in the Judgment dated 26.11.2014 passed in W.A. No. 2114 of 2012. In the said Judgment, the Division Bench had an occasion to consider whether a candidate will be entitled to get marks for possessing experience certificate in Polytechnic College and for possessing Ph.D., degree as well as for making publications. In the said Judgment, the Division Bench had an occasion to consider whether a candidate will be entitled to get marks for possessing experience certificate in Polytechnic College and for possessing Ph.D., degree as well as for making publications. After considering the relevant orders passed by the Government with respect to awarding teaching experience, the Division Bench of this Court was pleased to issue a direction, directing the Chairman of Teachers Recruitment Board to consider awarding marks for experience certificate produced by the appellant therein obtained from Polytechnic College for possessing Ph.D., degree and for publication of three books. In Para Nos. 6 and 7 of the said order, the Division Bench held as follows:- "6. We have perused G.O. Ms. No.62, Higher Education Department dated 13.03.2002, wherein the nomenclature of "Polytechnics" was changed as "Polytechnic Colleges" in terms of the recommendations of the All India Board of Technical Education, forwarded to the State Government by the All India Council for Technical Education. The experience Certificate obtained by the appellant from the Polytechnic College is certified by the Director of Technical Education, Chennai - 25 and further that a candidate by name K. Rajathi, who was a faculty (like the appellant) of Thanthai Periyar E.V.R. Government Polytechnic College, Vellore-2 was given marks for the experience gained in Polytechnic College and in the list of candidates attended for interview, which is found in page 17 of the typed set of papers, it is seen that Ms. K. Rajathi was awarded 7 marks for Teaching Experience, even though she was employed only as a Lecturer in Polytechnic College. Thus, it is very much evident that the appellant is also entitled to get marks for the Experience Certificate obtained from the Polytechnic College. Similarly, the appellant is entitled to get marks for possessing Ph.D., degree and also for publication of three books viz., (1) Chemistry for Diploma Engineering (2) Stoichemistry Engineering materials for Diploma in Chemistry and with Chemistry Engineering and (3) Polytechnic Chemistry in Tamil Medium and the said publications were also not assessed for awarding marks, even though there is specific head assigned for awarding marks under the said category viz., "publication of Books". 7. 7. Considering the above, we are of the view that the order of the learned single Judge is liable to be set aside and the matter is to be remitted to the third respondent to consider awarding of marks for Experience Certificate produced by the appellant obtained from the Polytechnic College, for possessing Ph.D., degree and for publication of three books. It is made clear that the appellant is entitled to get marks for the Experience Certificate and the same shall not be denied on the ground that the Experience Certificate produced by the appellant was from the polytechnic college. Similarly, award of marks for possessing Ph.D. degree and also for publication of three books cannot be denied by the third respondent/Teachers Recruitment Board (TRB). The third respondent/TRB is directed to re-assess the same and award appropriate marks as stated above and arrive at a decision, within a period of four weeks from the date of receipt of copy of this order and if the marks secured by the appellant on such assessment is above 31 marks, which is the cut-off mark prescribed for Backward Class community, selection order shall be issued to the appellant." 9. Therefore, on the basis of the aforesaid decision of the Division Bench of this Court, the learned counsel for the petitioner in the contempt petition would contend that the order passed by this Court on 03.11.2016 in WP No. 33565 of 2014 has to be implemented by the Review Applicants, however, they have wilfully and deliberately failed to comply with the directions issued by this Court. 10. I have considered the rival submissions and perused the materials placed on record. The main contention put-forth in the Review Application is that this Court passed the order dated 03.11.2016 in WP No. 33565 of 2014 by following the earlier order dated 12.07.2013 passed by this Court in WP (MD) No. 18186 of 2013, however, at the instance of the Review Applicants, a mentioning was made for modification of the said order dated 12.07.2013 in WP (MD) No. 18186 of 2013 and after hearing both sides, a modified order dated 23.07.2013 was passed by this Court with respect to the reckoning of teaching experience possessed by a candidate before 31.12.2012 and therefore, the order dated 03.11.2016 passed by this Court in WP No. 33565 of 2014 requires to be reviewed. 11. 11. The aforesaid contention raised on behalf of the Review Applicants cannot be countenanced. At the outset, the modified order dated 23.07.2013 passed in WP (MD) No. 18186 of 2013 has not been brought to the notice of this Court while passing the order dated 03.11.2016 passed by this Court in WP No. 33565 of 2014, which is sought to be reviewed. Further, as rightly pointed out by the learned counsel for the Petitioner in the Contempt Petition, the issue involved in this case with respect to counting of teaching experience has been settled by the Judgment dated 26.11.2014 passed in W.A. No. 2114 of 2012. Even the aforesaid Judgment dated 26.11.2014 in WA No. 2114 of 2012 has not been brought to the notice of this Court while passing the order dated 03.11.2016 in WP No. 33565 of 2014, which is sought to be reviewed. 12. It is well settled that a Review Application can be entertained only it is shown that there is an error apparent on the face of the record or such an order was passed by taking note of irrelevant materials for consideration. In the present case, there is nothing on record to show that there is an error apparent on the face of the record warranting this Court to review the Order dated 03.11.2016 passed in WP No. 33565 of 2014. Even otherwise, the Judgment dated 26.11.2014 passed by the Division Bench of this Court in WA No. 2114 of 2012 has settled the issue involved in this case. Therefore, this Court is of the view that the Review Applicants have not made out any case for reviewing the order dated 03.11.2016 in WP No. 33565 of 2014 and the Review Application is liable to be dismissed. 13. In the result, the Review Application is dismissed. No costs. 14. In view of the dismissal of the Review Application filed by the Review Applicants, the Contempt Petition No. 1245 of 2017 is directed to be posted for reporting compliance by the Review Applicants on 26.10.2018. Post on 26.10.2018.