Madras High Court
D.Sabarinath vs M.Soundararajan on 27 January, 2022
Rev.Aplc(MD)No.28/2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.01.2022
CORAM
THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
Rev.Aplc.(MD)No.28 of 2021
in W.A.(MD)No.1002 of 2012
in W.P.(MD)No.12827 of 2012
& C.M.P.(MD)No.4137 of 2021
1. D.Sabarinath
2. K.Kalpana
3. S.Saratha
4. T.Indhira
5. G.Thirumayi
6. P.Palanikumar
7. N.Karuppusamy
8. Selvaraj .. Petitioners/Appellants/3rd Parties
Vs.
1. M.Soundararajan
2. The District Collector,
Dindigul District,
Dindigul.
3. The Tahsildar,
Oddanchathiram Taluk,
Dindigul District.
4. The District Employment Office,
Dindigul District,
Dindigul. .. Respondents/Respondents
***
Prayer : Review Application filed under Section 114 read with Order 47,
Rule 1 of the Code of Civil Procedure against the order dated 05.03.2021
made in W.A.No.1002 of 2012.
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For Petitioners : Mr.C.Vakeeswaran
For Respondents : Mr.S.Karthick for R1
Mr.P.Subburaj
Special Government Pleader
for RR 2 to 4
ORDER
PUSHPA SATHYANARAYANA, J.
The petitioners instituted this application seeking to review the
judgment dated 05.03.2021 made in W.A.No.1002 of 2012, through
another counsel, who did not appear in the writ appeal.
2. In the said judgment, this Court made the following
observations :
"5. The said challenge was made pursuant to the G.O.Ms.No.
429, Revenue Department, dated 8.8.2007. The said Writ Petition
was allowed by quashing the impugned order on the basis of the
judgement of the Division Bench passed by this Court in W.P.No.
26162 of 2010, dated 2.8.2012 (K.P.Jaganathan vs. The
Commissioner, Department of Employment and Training, Alandur
Road, Guindy, Chennai – 600 002 and others), which was confirmed
by this Court in W.A.No.1027 of 2013, dated 9.6.2014, wherein, it
has been categorically held giving a direction to the Government of
Tamil Nadu to follow this judgment while filling up of all public posts
in future as per the directions given therein. Based on the said
judgment, the Writ Petition was allowed. Aggrieved by the same, the
Writ Appellants, who are third parties, who are selected by the fourth
respondent, have preferred the above Writ Appeal. Though it is
stated that they have been successfully employed till today by virtue
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of an order of injunction granted in the Writ Appeal, the ratio laid
down in the case of K.P.Jaganathan's case as stated supra, is
applicable to the present case also. Therefore the appointment of the
Writ Appellants itself is illegal. It is also stated by the learned
Government Advocate appearing for the respondents 2 to 4 that
subsequent to the filing of this Writ Appeal, two or three selection
process for the post of Village Assistant was conducted as per the
mode of selection, as suggested by the Division Bench of this Court
and the entire selection process was over."
3. Learned counsel for the petitioners submitted that the writ
petitioner did not challenge the appointment order of the petitioners
herein nor the selection process, but the learned Single Judge, beyond
the prayer, granted the relief, which necessitated the petitioners, who
were third parties to the writ petition, to file the appeal inviting the
trouble by way of the judgment, which is sought to be reviewed.
Learned counsel further submitted that a Division Bench of this Court in
the Commissioner, Department of Employment and Training,
Chennai V. K.P.eganathan, reported in 2014 Supreme (Mad) 1120,
did not disturb the continuance in service by some of the similarly placed
Village Assistants as such, the petitioners, who have been working from
2012, may also be given similar treatment. It is also submitted that more
than 3000 similarly placed Village Assistants were working throughout
the State and as such, the judgment dated 05.03.2021 may be reviewed
to protect the interest of the petitioners.
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4. Heard the learned Special Government Pleader appearing on
behalf of the State and the learned counsel for the first respondent.
5. Before considering the merits of the submissions advanced by
the learned counsel for the petitioners, it is to be stated that the
petitioners filed this review petition by engaging another advocate for
reasons best known to them. This Court has deprecated such conduct of
the parties and has opined that such review petitions should not be
encouraged and need to be dismissed. The said positions is expounded
by the Hon'ble Supreme Court in T.N.Electricity Board v. N. Raju
Reddiar, (1997) 9 SCC 736, wherein it has been held as follows :
1. ....... When an appeal/special leave petition is dismissed,
except in rare cases where error of law or fact is apparent on the
record, no review can be filed; that too by the Advocate-on-Record
who neither appeared nor was party in the main case. It is salutary to
note that the court spends valuable time in deciding a case. Review
petition is not, and should not be, an attempt for hearing the matter
again on merits. Unfortunately, it has become, in recent time, a
practice to file such review petitions as a routine; that too, with
change of counsel, without obtaining consent of the Advocate-on-
Record at earlier stage. This is not conducive to healthy practice of
the Bar which has the responsibility to maintain the salutary practice
of profession. In Review Petition No. 2670 of 1996 in CA No. 1867 of
1992, a Bench of three Judges to which one of us, K. Ramaswamy, J.,
was a member, had held as under:
“The record of the appeal indicates that Shri Sudarsh
Menon was the Advocate-on-Record when the appeal was heard
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and decided on merits. The review petition has been filed by
Shri Prabir Chowdhury who was neither an arguing counsel
when the appeal was heard nor was he present at the time of
arguments. It is unknown on what basis he has written the
grounds in the review petition as if it is a rehearing of an appeal
against our order. He did not confine to the scope of review. It
would not be in the interest of the profession to permit such
practice. That apart, he has not obtained ‘No Objection
Certificate’ from the Advocate-on-Record in the appeal, in spite
of the fact that Registry had informed him of the requirement
for doing so. Filing of the ‘No Objection Certificate’ would be the
basis for him to come on record. Otherwise, the Advocate-on-
Record is answerable to the Court. The failure to obtain the ‘No
Objection Certificate’ from the erstwhile counsel has disentitled
him to file the review petition. Even otherwise, the review
petition has no merits. It is an attempt to reargue the matter on
merits.
On these grounds, we dismiss the review petition.”
6. In Om Prakash v. Suresh Kumar, (2020) 13 SCC 188, a
Three-Judge Bench of the Hon'ble Supreme Court placing reliance on the
said judgment held as follows :
"..... Notably, the appellant filed review petition before the
High Court by engaging another advocate for reasons best known to
him. This Court has deprecated the conduct of such petitioners and
has opined that such review petitions should not be encouraged and
need to be dismissed, as expounded in T.N. Electricity Board v. N.
Raju Reddiar, (1997) 9 SCC 736]."
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7. Thus, it is clear that where if the review application is filed by
another counsel, who is not the counsel represented the main case, such
application cannot be entertained, and it has to be dismissed in limine,
without delving into the merits of the submissions.
8. The basic principles in which the review application could be
entertained have been eloquently examined by the Hon'ble Supreme
Court in Kamlesh Verma v. Mayawati, (2013) 8 SCC 320, wherein,
this Court held as under :
“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 the record;
(iii) Any other sufficient reason.
The words “any other sufficient reason” have been interpreted
in Chhajju Ram v. Neki, 1922 SCC OnLine PC 11 and approved by this
Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose
Athanasius, AIR 1954 SC 526 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 v. Sandur
Manganese & Iron Ores Ltd., (2013) 8 SCC 337.
20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to
reopen concluded adjudications.
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(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, 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 reheard 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.”
9. Applying the above principles also, it is to be stated that even
on merits, no ground is made out to review the judgment.
10. Insofar as the submission of the learned counsel for the
petitioners herein that the principle of equity requires no interference in
the continuance of the service of the petitioners is concerned, though this
Court held that the appointment of the writ appellants itself is illegal,
consciously, chosen not to set aside the same, despite the fact that they
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are before the Court as third party appellants. Hence, it is for the
respondents authorities to take call on their service condition.
11. Accordingly, there is no merit in this review application
except making the above observations, and the review application stands
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
(P.S.N., J.) (S.K., J.)
27.01.2022
Index : Yes / No
Internet: Yes
gg
To
1. The District Collector,
Dindigul District,
Dindigul.
2. The Tahsildar,
Oddanchathiram Taluk,
Dindigul District.
3. The District Employment Office,
Dindigul District,
Dindigul.
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Rev.Aplc(MD)No.28/2021
PUSHPA SATHYANARAYANA, J.
AND
S.KANNAMMAL, J.
gg
Rev.Aplc.(MD)No.28 of 2021
in W.A.(MD)No.1002 of 2012
in W.P.(MD)No.12827 of 2012
27.01.2022
https://www.mhc.tn.gov.in/judis
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