Madras High Court

The Manaing Director vs N.Arumugam on 29 August, 2023

                                                                           Rev.Aplw.(MD) No.94 of 2023



                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED : 29.08.2023

                                                     CORAM:

                              THE HONOURABLE Mr.JUSTICE BATTU DEVANAND

                                            Rev.Aplw.(MD) No.94 of 2023
                                                      against
                                             W.P.(MD) No.23397 of 2016

                     1.The Manaing Director,
                       Tamil Nadu State Transport Corporation,
                       Tirunelveli Limited, Kattabomman Nagar,
                       Tirunelveli District.

                     2.The General Manager,
                       Tamil Nadu State Transport Corporation,
                       Tirunelveli Limited, Tirunelveli Region,
                       Vannarapettai, Tirunelveli.              .. Petitioners/Respondents

                                                         Vs.

                     N.Arumugam                                  .. Respondent/Petitioner

                     Prayer: Petition filed under Order XLVII Rules 1 and 2 read with Section
                     114 of Civil Procedure Code to review the order of this Court dated
                     01.12.2016 made in W.P.(MD) No.23397 of 2016.

                                    For Petitioner   :     Mr.R.Rajamohan
                                                           Standing Counsel

                                    For Respondent   :     Mr.S.Govindan

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                                                                                Rev.Aplw.(MD) No.94 of 2023




                                                           ORDER

This review application is filed under Order XLVII Rules 1 and 2

read with Section 114 of the Code of Civil Procedure seeking to review

the order dated 01.12.2016 in W.P.(MD) No.23397 of 2016.

2. The review petitioners are the respondents in the writ petition

and the respondent herein is the writ petitioner.

3. Heard the learned Standing Counsel for the review petitioners

and the learned counsel appearing for the respondent. Perused the

grounds raised in the review petition along with the material papers filed

by the review petitioners.

4. Learned Standing Counsel appearing for the review petitioners

submits that the impugned order under review was passed by the learned

Single Judge ignoring the fact that the writ petitioner had three review

pattern wage system at previous post, whereas his junior had four review

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pattern wage system. The learned Standing Counsel would submit that

the learned Single Judge has ignored the fact that the writ petitioner and

his junior have been elevated to the post of Superintendent not under the

same service condition. The learned counsel further submits that the

learned Judge ignored the fact that the writ petitioner has not given

reasons for claiming the pay anomaly after long delay.

5. Learned counsel appearing for the respondent herein submits

that the respondent/writ petitioner being senior, he is entitled to get more

pay or equal pay with that of his junior and the failure to consider his

anomaly and the failure to rectify his pay construction between senior

and junior amounts to discrimination among similarly placed persons and

the same is ex facie illegal and is against the principles laid down by the

Hon'ble Apex Court and this Court.

6. The learned counsel further submits that there is no any valid

ground raised by the review petitioners to review the order of the learned

Single Judge and as such, it is liable to be dismissed. He also would

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submit that in view of the fact that against the order of the learned Single

Judge, the review petitioners had filed writ appeal and as such, Order

XLVII Rule 1 of Civil Procedure Code bars the review petitioners for

filing this review petition.

7. Having heard the submissions of the respective counsels and

upon perusal of the material papers available on record, it appears that

the learned Single Judge by following the judgment of the Hon'ble Apex

Court in Gurcharan Singh Grewal and another Vs. Punjab State

Electricity Board and others reported in (2009) 3 SCC 94 and a

judgment of a Division Bench of this Court in K.K.Perumalsamy Vs.

Tamil Nadu Electricity Board and others reported in 2011 (1) CWC

652, wherein it is held that the senior cannot be paid less than his juniors,

even if there was anomaly in senior's pay, due to difference of

incremental benefits in both the cases, allowed the writ petition directing

the respondents therein to rectify the pay anomaly among similarly

placed persons and to step up the pay of the writ petitioner on par with

his junior.

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8. In fact, against the order of the learned Single Judge, a writ

appeal has been filed by the review petitioners herein and the same was

dismissed by common judgment dated 20.09.2017 in W.A.(MD) No.1217

of 2017 etc., batch.

9. In fact, as rightly contended by the learned counsel for the writ

petitioner once the review petitioners filed writ appeal and the said writ

appeal is dismissed, Order XLVII Rule 1 of Civil Procedure Code bars

the review petitioners for filing this review petition. However, in view of

the fact that while dismissing the writ appeals, the Division Bench

granted liberty to the appellants therein to file review petitions, this

Court is not inclined to go into the issue of maintainability of the review

petition.

10. Admittedly, at the time of hearing of the writ petition before

the learned Single Judge, the learned Standing Counsel for the

respondents therein has not disputed the contention of the learned

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counsel for the writ petitioner and the facts now the review petitioners

are raising in this review petition have never been placed before the

learned Single Judge at the time of passing the order. It is not the case of

the review petitioners that they could not produce the material/evidence

at the time of passing order, as it is not within their knowledge.

11. For proper adjudication of this case, Order XLVII Rule 1 of

Civil Procedure Code is extracted hereinunder:

“1. Application for review of judgment.- (1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the

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face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.”

12. As per Order XLVII Rule 1 of C.P.C, any person can file

review petition against a decree or order passed by the Court, subject to

the following conditions:

i. Who, from the discovery of new and important matter or evidence

which was not within his knowledge or could not be produced by

him at the time when the decree was passed or order made, after

the exercise of due diligence;

ii. On account of some mistake,

iii. Error apparent on the face of the record,

iv. For any other sufficient reason, desires to obtain a review of the

decree passed or order made against him, may apply for a review

of judgment to the Court which passed the decree or made the

order.

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13. On a plain reading of Rule 1 of Order XLVII of Civil

Procedure Code, from the discovery of new and important matter or

evidence which was not within the knowledge or could not be produced

at the time when the decree was passed or order made, after the exercise

of due diligence by any person may apply for a review of judgment or

order. But in the present case, this ground is not available to the review

petitioners due to the reason that at the time of passing the order by the

learned Single Judge, the said facts were not placed before the Court,

though definitely such material would be available with them. This

Court also noticed that there is no any error apparent on the face of the