Madras High Court
The Secretary To Education Department vs R.Muthian on 1 February, 2024
Author: G.Jayachandran
Bench: G.Jayachandran
Rev.Aplc(MD)No.94 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:01.02.2024
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HON'BLE MR.JUSTICE K.K.RAMAKRISHNAN
Rev.Aplc(MD)No.94 of 2023
and
C.M.P(MD)No.16042 of 2023
1.The Secretary to Education Department,
Government of Tamil Nadu,
Fort St. George, Chennai – 9.
2.The Director of Elementary Education,
College Road, Chennai – 6.
3.The District Elementary Educational Officer,
Tanjore District.
4.The Additional Assistant Elementary Educational
Officer,
Thirupanathal. .. Review Applicants/Appellants
Vs.
1.R.Muthian,
Middle School Headmaster,
Kasthiriba Gandhi Gurukulam,
Tanjore District – 609 804.
Page 1 of 10
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Rev.Aplc(MD)No.94 of 2023
2.The Secretary,
Kasthuriba Gandhi Gurukulam,
Aided Middle School, Dugli,
Thirupananthal, Tanjore – 609 804. .. Respondents / Respondents
PRAYER: Review Application filed under Order 41 Rule 1 & 2 r/w
Section 114 of C.P.C., to review the order dated 13.02.2023 passed by this
Court in W.A(MD)No.1408 of 2014.
For Applicants : Mr.D.Sadiq Raja,
Additional Government Pleader
For R-1 : Mr.S.N.Ravichandran
JUDGMENT
DR.G.JAYACHANDRAN,J.
and
K.K.RAMAKRISHNAN,J.
Review petition is filed by the State being aggrieved by the judgment
of this Court dated 13.02.2023 made in W.A(MD)No.1408 of 2014 on the
ground that the Hon’ble Supreme Court subsequently in the State of Tamil
Nadu & Others v. Nehru Middle School & Another vide judgment dated
24.03.2023, had upheld the action of the State not approving the
appointment of a Middle School Headmistress, who did not possess the
minimum requirement of five years teaching experience.
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2. The learned Additional Government Pleader appearing for the State
submitted that the first respondent herein, who was appointed as
Headmaster in Kashthuriba Gandhi Gurukulam middle school, the second
respondent herein on 15.02.1990 through employment exchange had no
teaching experience of five years and therefore, his appointment was
approved subject to the condition that he will be paid only the secondary
grade pay till he possesses five years of teaching experience. Challenging
the same, the first respondent filed W.P(MD)No.4319 of 2012 wherein the
learned Single Judge relied upon the orders passed in identical case in
R.Ulaganathan v. the Government of Tamil Nadu in W.P(MD)No.6691 of
2010, dated 07.01.2010 and in W.P(MD)No.20780 of 1992, dated
04.01.1999, wherein the plea of the writ petitioner to set aside the five years
experience was allowed by setting aside the impugned order of the State and
therefore, on parity the writ petition which was filed by the first respondent
was also allowed.
3. Being aggrieved, the State preferred W.A(MD)No.1408 of 2014
and the same was also dismissed. But, however, the subsequent judgment
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rendered in Nehru Middle School’s case, has settled the law wherein the
Hon’ble Supreme Court has observed that such an appointment relaxing the
requisite teaching experience and direction to pay lesser pay scale till
teaching experience obtained, is untenable in law. Therefore, in view of the
latter judgment, the order passed by this Court on 13.02.2023 allowing the
writ petition filed by the first respondent has to be set aside and the writ
appeal has to be allowed dismissing the writ petition.
4. The learned counsel appearing for the first respondent effected his
argument on twofold. His first argument is focussed on the point that a
review application cannot be entertained based on a subsequent judgment in
view of explanation to Order 47 Rule 1 of C.P.C., which reads as below:
“Explanation:- The fact that the decision on a question
of law on which the judgment of the Court is based has been
reversed or modified by the subsequent decision of a
superior Court in any other case, shall not be a ground for
the review of such judgment.”
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In support of this argument, he relies upon the judgment in Shanti Devi v.
State of Haryana and Others reported in (1999) 5 Supreme Court Cases
5. The second limb of his argument is that the review petition is not
maintainable since the facts in the Nehru Middle School’s case cited by the
learned Additional Government Pleader is different from the facts of the
case before this Court.
6. According to the learned counsel, the person who was appointed as
Headmaster in the Nehru Middle School’s case did not have the requisite
five years teaching experience besides in the very same school, there were
other eligible B.T., Teachers for promotion as Headmaster in the middle
school. Ignoring their eligibility, the management tried to appoint the
person directly without teaching experience which the Government resisted
and denied. When this matter came up for consideration before the
Supreme Court, the Supreme Court on facts found that the very
appointment of a person without requisite teaching experience when eligible
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candidates in the school were available is untenable. Whereas in the case of
the first respondent, there is no eligible candidate in the second respondent
institute and taking note of the fact that the Government Order permitting
relaxation of the experience, the first respondent was appointed in the year
1990. Whereas the subsequent G.O.Ms.No.932, Educational Department
dated 15.09.1992, came to be passed only in the year 1992. By that time,
the first respondent had been appointed, approved and was in service for
more than two years. Therefore, the learned counsel for the first respondent
submitted that when the facts are different, the judgment cannot be taken
into account for reviewing the order passed much earlier and which has
reached finality.
7. Furthermore, the learned counsel for the first respondent submitted
that when similarly placed persons had already been granted the benefit of
relaxation and monetary benefit, the judgment in respect of a person, who is
not similarly placed, cannot be cited or relied to unsettle the judgment
already rendered. In support of this argument, the learned counsel referred
the dictum laid in Kamalesh Verma v. Mayavati & Others reported in
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2013 (8) SCC 320, which has culled out the principal when a Court can
review its judgment.
8. This Court after giving anxious consideration to the rival
submissions, though may not agree with the first limb of the argument made
by the learned counsel for the first respondent, impressed upon the second
limb of argument, namely, the judgment cited by the learned Additional
Government Pleader rendered in Nehru Middle School’s case, dated
24.03.2023, passed subsequent to the orders passed by this Court, which is
the subject matter of the review, factually not similar to the case in hand and
the difference makes the Court to hold the review petition not maintainable.
9. In Kamalesh Verma’s case (cited supra), the Hon’ble Supreme
Court while summarizing the principal in Paragraph No.20.2 has laid down
when review will not be maintainable. For convenience sake, the said
principle is extracted below:
“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 of 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.”
10. We find that the learned Single Judge as well as this Court while
disposing the matter, has gone through the facts of the case and record and
being satisfied that the first respondent is entitled for the relief sought, had
granted the relief as mentioned in the order. While plea to review the order
is sought by the State, the plea should fall within anyone of the parameters
stated in Kamaesh Verma’s case. However, we find no discovery of new
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fact or evidence. Neither we find error apparent on the face of the record
nor we find any sufficient reason to review the order passed. The
subsequent judgment cited which is factually correct and observation by the
judgment of the Hon’ble Supreme Court, cannot be a reason to review the
earlier order. Hence, the review petition is dismissed. No Costs.
Consequently, connected Miscellaneous Petition is closed.
(G.J.,J.) (K.K.R.K.,J.)
01.02.2024
NCC : Yes / No
Index : Yes / No
PM
To
1.The Secretary to Education Department,
Government of Tamil Nadu,
Fort St. George, Chennai – 9.
2.The Director of Elementary Education,
College Road, Chennai – 6.
3.The District Elementary Educational Officer,
Tanjore District.
4.The Additional Assistant Elementary Educational
Officer,
Thirupanathal.
https://www.mhc.tn.gov.in/judis
DR.G.JAYACHANDRAN,J.
and
K.K.RAMAKRISHNAN,J.
PM
02.02.2024
https://www.mhc.tn.gov.in/judis
