Madras High Court
The Director Of School Education vs J.Jasmine on 13 September, 2023
Rev.Aplc.(MD)No.134 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.09.2023
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
AND
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
Rev.Aplc.(MD)No.134 of 2022
and
C.M.P.(MD)No.9604 of 2022
1.The Director of School Education,
College Road,
Chennai -6.
2.The Chief Educational Officer,
Tirunelveli District,
Tirunelveli.
3.The District Educational Officer,
Valliyur,
Tirunelveli District. ...Appellants
/Vs./
1.J.Jasmine
2.The Correspondent,
T.D.T.A.Middle School,
Talavaipuram,
Tirunelveli District. ...Respondents
1/13
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Rev.Aplc.(MD)No.134 of 2022
PRAYER:- Review Application - filed under Order 47 Rules 1&2 of CPC
r/w. Section 114 of CPC, to review the order passed by the Division
Bench of this Court in C.M.P.(MD)No.2272 of 2021 in W.A.
(MD)No.SR11686 of 2021 and allowing the Review Application.
For Appellant : Mr.D.Sadiq Raja
Additional Government Pleader
For Respondents : Mr.S.Chellapandian (R1)
JUDGMENT
(Judgment of the Court was made by DR.ANITA SUMANTH, J.)
This review application has been filed as against the order
passed in CMP(MD)No.2272 of 2021 and WA(MD)No.SR11686 of 2021
on 08.06.2021, this Court finding that no sufficient cause existed for
condonation of delay of 662 days.
2. At the outset, the Review Application is of the year 2022
and there was no action taken to pursue the same till, all of a sudden, a
mention was made for urgent listing. The urgency expressed was that the
writ petitioner had moved a contempt petitioner before this Court and
orders adverse to the state were imminent in that contempt petition.
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Rev.Aplc.(MD)No.134 of 2022
3. At first blush, we found no necessity whatsoever to consider
review of order dated 08.06.2021, as the order is categoric to state that
the reasons set out in paragraph 7 of the affidavit dated 30.07.2020 filed
by the State did not show any cause, let alone sufficient cause, to justify
the delay. Paragraph 7 of that affidavit reads as follows:
“I respectfully submit that the order was
passed on 05.04.2019, the copy was made ready on
23.05.2019, the copy was issued on 25.05.2019 and
the copy was received on 10.06.2019. Thereafter on
instructions an opinion was sought from the Special
Government Pleader whether this is a fit case for
filing appeal. It is submitted that the Special
Government Pleader has opined that the case is fit
for appeal and was pleased to direct the officials to
file an appeal. After obtaining the legal opinion of
the Special Government Pleader, sincere efforts were
taken to file the appeal petition as early as possible.
Hence there was delay and the delay is neither
willful nor wanton, but for the aforesaid reasons.
Therefore in the interest of justice the delay ought to
be condoned.”
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Rev.Aplc.(MD)No.134 of 2022
4. Mr.D.Sadiq Raja, learned Additional Government Pleader,
who appears for the State now however, sings a totally different tune
before us, pointing out that there had been a gross error in the earlier
affidavit filed by the State. He would submit that inadvertently, erroneous
procedure had been followed and instead of moving a writ appeal, the
State had moved a Petition for Special Leave before the Hon'ble Supreme
Court, having been of the impression that that was the proper course of
action to adopt.
5. That SLP and connected interim application duly notarized,
are dated 25.07.2019 falling within the stipulated period of 90 days from
the date of receipt of a certified copy of the writ order. Thereafter, the
matter had been pending with the counsel at the Supreme Court and had
been received back after several reminders on the part of the State, only
in December, 2019.
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Rev.Aplc.(MD)No.134 of 2022
6. Upon receipt thereof, the matter was followed up in January
and February, 2020. An opinion was sought from the learned Additional
Government Pleader. Opinion was obtained in March, 2020 to the effect
that the appeal ought to have been filed before the Division Bench of the
High Court and not before the Supreme Court. While the State was in
the process of preparing and filing writ appeal, country wide lockdown
was imposed on account of Covid-19 pandemic.
7. The Hon'ble Supreme Court had also taken suo motu
cognizance of the same in March 2020 when orders had been passed
protection proceedings from the bar of limitation. Such protection
extended till 01.03.2022. As the writ appeal had been filed on
25.02.2021, the period between 15.03.2020 to 25.02.2021 would stand
covered by the protection afforded by the Hon'ble Supreme Court. As for
the period prior thereto, suitable and sufficient justification had been
furnished so as to explain the delay. This, in substance were the
submissions of the State.
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Rev.Aplc.(MD)No.134 of 2022
8. We permitted the State to file an additional affidavit as the
entirety of the explanation now put forth by the learned Additional
Government Pleader was at variance from what had been filed in the
original instance, as seen from para 7 of the original affidavit extracted
above. Affidavit dated 28.08.2023 had come to be filed by the present
District Educational Officer, Valliyoor, Tirunelveli District and the
explanation which had been orally put forth by the learned Additional
Government Pleader has been captured therein.
9. In order to convince ourselves that the explanation was
indeed correct, we also called for the records including the register
maintained by the Notary to verify the date on which the Interim
Application had been notarized. A copy of the draft affidavit seeking
interim relief in SLP along with the original register has been produced.
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Rev.Aplc.(MD)No.134 of 2022
10. We have satisfied ourselves that the affidavit for interim
relief in SLP was executed on 25.07.2019 and has been duly notarized on
the same date. The originals of the register would support this position.
We are now faced with a position where the contents of the additional
affidavit dated 28.08.2023 set out reasons for delay wholly at variance
with the affidavit filed at the original instance, and we are to decide
whether there is sufficient justification in accepting the request for
review.
11. Order XLVII Rule 1 of the Code of Civil Procedure, 1908
provides for review of a judgment in the following circumstances:-
(i) Discovery of new and important matters or evidence;
(a) Such discovery not being within the knowledge of the
applicant or;
(b) Such evidence not being produced at the time when
original order was passed;
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Rev.Aplc.(MD)No.134 of 2022
(ii) a mistake or error apparent on the face of the record;
(iii) any other sufficient reasons.
12. The circumstances at S.Nos.(i) (a) and (b) and (ii) above,
the first two limbs of Rule 1, place the burden entirely upon the
applicants seeking review. They would have to satisfy the Court that the
requisite information or evidence was either (i) available at the time
when the original order was passed, but could not be produced on
account of a genuine inability on their part, or (ii) was not within their
domain of knowledge at the relevant point in time.
13. The trajectory of events as we have noted from affidavit
dated 30.07.2020 filed originally, makes it clear that neither of the
situation as adumbrated in clauses (i) and (ii) above, apply in this case.
That deponent had evidently not applied her mind even minimally to the
facts of the matter before her. The drafting of paragraph 7 is mechanical
and admits of absolutely no application of mind.
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Rev.Aplc.(MD)No.134 of 2022
14. In, fact had the facts that are now placed before us, been
placed before the Division Bench at the original instance, we dare say the
Bench may have proceeded to condone the delay and admit the appeal.
Thus, the first limb of Order XLVII Rule 1 of CPC would not come to the
rescue of the State.
15. There is also no mistake or error on the face of the record,
since record of the order in respect of which review is sought, proceed on
the basis that there is indeed a delay of 662 days in filing the appeal.
This clause too thus does not advance the case of the State.
16. The third limb relates to the existence of any other
sufficient reasons on the basis of which the Court may be inclined to
intervene. It is solely on this account that the State succeeds. We have
been taken in some detail through the merits of the matter as well. We do
not intend to make any observations herein that would stand in the way
of parties in the hearing of the writ appeal. However, we outline the
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Rev.Aplc.(MD)No.134 of 2022
issues on merits peripherally, merely in order to satisfy ourselves that the
State has a prima facie, arguable case, in appeal.
17. It is on this account and for this purpose that we proceed to
record the rival contentions of the parties as follows:-
(i) Prayer of the writ petitioner was for a Writ of certiorarified
mandamus seeking a quash of an order holding that, the post to which
she had been appointed, was surplus. A consequential direction had been
sought to the District Educational Officer to approve her appointment as
Pre-Vocational Sewing Instructor in the TDTA Middle School,
Thalavaipuram, Tirunelveli, with all service and monetary benefits with
effect from 25.10.2018.
(ii) Learned AGP would point out that that post has been
declared as surplus as early as on 20.03.2017. In the order holding the
post to be surplus, the students strength has been set out at 85 for classes
VI to VIII and whereas the minimum student strength should have been
pegged at 250 in terms of G.O.132, School Education (M1) Department,
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Rev.Aplc.(MD)No.134 of 2022
dated 27.04.1998.
(iii) The appointment of the writ petitioner was on 25.10.2017
when the post had in fact, been declared as surplus.
(iv) Learned counsel for the respondent/writ petitioner would
point out that the position as above has already been considered by the
Writ Court and has been held in favour of the writ petitioner.
18. While reiterating that we have touched upon the merits
only in the interests of completion, we do determine the existence of a
prima facie case that supports our conclusion to allow this review
application. We are persuaded to accept the submission that the delay in
filing the appeal was justified as the draft of the interim application and
SLP have been prepared, notarized and sent to counsel at Delhi within
the period of 90 days, within which SLP ought to have been filed.
19. The action taken by the State was thus diligent, albeit
erroneous misplaced as far as the forum is concerned. It is settled law
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Rev.Aplc.(MD)No.134 of 2022
that delay caused by a party approaching a forum should not stand in the
way of substantiate justice and this ratio would fully apply to the case on
hand.
20. However, substantial efforts of the State as well as judicial
time have been expanded in dealing with the dismissal of the writ appeal
(in SR stage) and the present review application and for this purpose, we
deem it appropriate to put the review petitioners to terms. The review
petitioners shall pay a sum of Rs.75,000/- (Rupees Seventy Five
Thousand only) to the 'High Court Legal Aid Services Committee' within
a period of eight weeks. This Review Application is allowed on such
terms. Consequently, connected Miscellaneous Petition is closed.
[A.S.M.J.,] & [R.V.J.,]
13.09.2023
NCC :Yes/No
Index :Yes/No
Internet :Yes
sm
https://www.mhc.tn.gov.in/judis
Rev.Aplc.(MD)No.134 of 2022
DR.ANITA SUMANTH, J.
AND
R.VIJAYAKUMAR, J.
sm
Order made in
Rev.Aplc.(MD)No.134 of 2022
Dated:
13.09.2023
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