IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 19.10.2011 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NOS.24567 OF 2010 & 11351 OF 2011 & Connected Miscellaneous Petitions W.P. NO.24567 OF 2010 1.P.Rajendra Prasad 2.M.Vasanthi 3.S.Madhavi 4.T.Devaraj 5.K.S.Senthilkumar 6.R.Prabu 7.S.Suganya 8.T.Suganthi 9.A.Bhuvaneswari 10.M.Vijayalakshmi 11.B.Sangeetha 12.R.Venkatachalam .. Petitioners Versus 1.The Government of Tamilnadu Rep.by its Secretary Public Works Department Fort St.George Chennai – 600 009. 2.The Engineer-in-Chief and Chief Engineer (GI) Public Works Department PWD Campus, Chepauk Chennai – 600 005. 3.R.Dhakshinamoorthy 4.V.Indran 5.V.Murukeshan 6.N.Kulothungan 7.N.Moganasundaram 8.B.Gnanaseakar 9.E.Ayyamperumal 10.R.Ponnusamy 11.P.Asaithambi https://hcservices.ecourts.gov.in/hcservices/ 12.M.Arumuga Nainar 13.V.Raja 14.C.M.Thandapani 15.S.Kumaraswamy 16.R.Soundarajan 17.S.Kamatchi 18.D.Uthayakumar 19.S.Kannan 20.R.Paul Raj 21.G.Kailasam 22.P.Rajendran 23.A.Vellaimani 24.G.Kamalapathi 25.G.Ayyavu 26.R.Muthuraj 27.M.Ramakrishnan 28.P.Sasikumar 29.V.Gurusamy 30.N.Gnanapandithan 31.V.Poobathi 32.R.Narayanasamy 33.G.Srinivasan 34.A.Vasanthan 35.B.Lakshmi 36.K.M.Janarthanan 37.R.Ravichandran 38.R.Natarajan .. Respondents PRAYER : Writ Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records relating to the issue of proceedings of second respondent in Proceedings No.S2(2)/26232/2008 dated 11.07.2008 and 30.04.2010 and in No.S2(2)/26232/2008-1 dated 13.02.2009 and quash the same. For Petitioners : Mr.N.Subramaniyan For Respondents-1 & 2 : Mr.K.V.Dhanapalan Additional Government Pleader For Respondents - : Mr.P.Chandrasekaran 4, 8, 16, 23 & 24 For Respondents – : Mr.S.Vadivelu 3, 6, 7, 9 to 12, 14, 15, 17 to 22, 24, 26 to 30, 32, 33, 35, 36 & 38 https://hcservices.ecourts.gov.in/hcservices/ W.P.NO.11351 OF 2011 1.P.Rajendra Prasad 2.M.Vasanthi 3.S.Madhavi 4.T.Devaraj 5.D.John 6.M.Niraimathi 7.S.Suganya 8.T.Suganthi 9.A.Bhuvaneswari 10.M.Vijayalakshmi 11.B.Sangeetha 12.R.Venkatachalam 13.B.Devan 14.G.Gayathri 15.K.Vani 16.K.Krishnaveni 17.K.Subbiah 18.C.Johnci Rani 19.K.Jayachitra 20.S.Sridevi .. Petitioners Versus 1.The Government of Tamilnadu Rep.by its Secretary Public Works Department Fort St.George Chennai – 600 009. 2.The Engineer-in-Chief and Chief Engineer (GI) Public Works Department PWD Campus, Chepauk Chennai – 600 005. 3.S.Mohankumar 4.C.Kanagaraj 5.K.Kasiraj 6.S.Murugavel 7.A.Selvaraj 8.N.Ramasamy 9.R.Chokkan 10.R.Gnanaguru 11.T.Pradeep 12.N.Manivannan 13.B.Sugumaran 14.B.Nagarajan 15.S.Arunkumar Mano Sekaram https://hcservices.ecourts.gov.in/hcservices/ 16.A.Marichamy 17.V.Anandan 18.A.Muthaiyan 19.A.Soundararaj 20.P.Sumathi 21.S.Gandhi 22.B.Asokan 23.V.Ravichandran 24.R.Panneer Selvam 25.U.Nagulan 26.S.Gurunathan 27.M.Thangarajan 28.G.Perumal 29.R.Ravi 30.P.John Basha 31.P.Jayanthi 32.M.Sudhakar 33.S.Sudarlin Bemila 34.S.P.Ganesan 35.A.Venugopal 36.R.Thanikodi 37.N.Jayanthi 38.M.Muthukaruppan 39.V.Murugan 40.A.P.Venkatachalam 41.S.Dhandabani 42.J.Dhilip Kumar 43.S.Manoharan 44.S.Pitchamurugan 45.S.Vaithianathan 46.S.Chidambaram 47.T.Adidevan 48.P.Manickam 49.A.Balasubramanian .. Respondents PRAYER : Writ Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records relating to the issue of the impugned orders, namely, the letter of Secretary to the first respondent in Lr.No.6449/B2/08-4 dated 04.06.2008 and proceedings of second respondent in Proceedings No.S2 (2)/26232/2008 dated 28.03.2011 and quash the same. For Petitioners : Mr.N.Subramaniyan For Respondents-1 & 2 : Mr.K.V.Dhanapalan Additional Government Pleader https://hcservices.ecourts.gov.in/hcservices/ For Respondents – : Mr.S.Vadivelu 4, 5, 8 to 13, 15 to 17, 19, 23, 26 to 28, 30 to 32, 34, 36, 38, 39, 40, 44 & 46 For Respondents- : Mr.K.Prem Kumar 42, 43, 45 & 48 C O M M O N O R D E R Even though the interim applications are listed before me, by consent, the writ petitions have been taken up for final hearing and arguments have been heard on them. 2.Taking note of the fact that issues involved in both these writ petitions are identical and common in nature and the respondents being the same, a common order is passed. 3.For the sake of brevity, the parties arrayed in W.P.No.24567 of 2010 are taken up as such and made applicable to the other writ petition as well. Facts in brief: 4.These two writ petitions are the second round of litigations even while the earlier litigation is pending adjudication on the file of the Honourable Apex Court in S.L.P.(C)No.2495 of 2007 etc. subsequently numbered as C.A.No.995, 997 and 998 of 2009. The apparent cause of action, which necessitated the petitioners in both these writ petitions to come before this Court is the implementation of the orders passed by the Honourable Division Bench of this Court in W.P.No.7523 of 1997 dated 06.11.2006, by which, the common order dated 17.04.1997 passed in O.A.No.3348 of 1994 etc. by the Tamil Nadu Administrative Tribunal, has been confirmed. It is also an admitted fact that there is no stay of the operation of orders passed by the Honourable Division Bench in W.P.No.7523 of 1997. 5.The petitioners herein are recruited for the post of Assistant Engineer, by direct recruitment, by way of appointment made in the year 2000. The contesting respondents in the writ petitions are Draughtsmen, Overseers and Technical Assistants working under the Public Works Department. The Government Order passed in G.O.Ms.No.1, Public Works (B-2) Department, dated 02.01.1990 provides for the appointment by way of promotion from the categories of Draughtsmen, Overseers and Technical Assistants, as Assistant Engineers. Since the said Government Order was not complied with and a notification was issued, for filling up the post in the category of Assistant Engineer, by way of direct recruitment, a batch of applications have https://hcservices.ecourts.gov.in/hcservices/ been filed before the Tamil Nadu Administrative Tribunal in O.A.No.3348 of 1994 etc. Those applications were allowed by the Tamil Nadu Administrative Tribunal on 17.04.1997, by quashing the advertisement made by the respondents with a direction to follow the ratio in the appointment of Assistant Engineers, between the direct recruitees and promotees, by taking into account the Government Order passed in G.O.Ms.No.1, Public Works (B-2) Department, dated 02.01.1990. 6.Eventhough the writ petitioners have been appointed in the year 2000, they have filed a writ petition through their Association before the Honourable Division Bench of this Court in W.P.No.7523 of 1997. By order dated 06.11.2006, the writ petition filed by the Association of the writ petitioners was dismissed. Challenging the decision of the Honourable Division Bench of this Court, the Association, which represented the writ petitioners, filed S.L.P.No.2495 of 2007 etc. which has been numbered as C.A.Nos.995, 997 and 998 of 2009. Admittedly, there is no stay of the operation of the decision of the Honourable Division Bench of this Court, by the Honourable Apex Court and the said civil appeal is pending disposal. 7.The second respondent, by the proceedings dated 29.04.1998, filled up the candidates belonging to Draughting Officers, Junior Draughting Officer and Overseers, by recruitment through transfer, as Assistant Engineers. The appointments have been made as temporary appointments by taking note of the fact that as against the order of the Tamil Nadu Administrative Tribunal, the Association belonging to the petitioners, has filed the writ petition in W.P.No.7523 of 1997 and the same was pending consideration at that relevant point of time. It has been made clear in the said orders that the appointments are subject to the outcome of the case pending in W.P.No.7523 of 1997. 8.By the order dated 06.11.2006, the Honourable Division Bench upheld the orders passed by the Tamil Nadu Administrative Tribunal in favour of the Draughting Officers, Junior Draughting Officers and Overseers. In pursuant to the same, an order was passed by the second respondent on 11.07.2008, by which, the persons who are appointed earlier, have been regularised under Rule 23(a)(i) of the Tamil Nadu State and Subordinate Services Rules, 1955. The said orders specifically states that it has been passed only for the purpose of providing monetary benefits and they cannot claim any other benefits towards seniority in the cadre of Assistant Engineers. The order further states that the same has been passed subject to the final orders to be passed by the Honourable Apex Court and in the event of the decision going against the persons concerned, then the order passed would be rescinded without any prior information. 9.Thereafter, the second respondent in and by the proceedings dated 30.04.2010 was pleased to remove the condition https://hcservices.ecourts.gov.in/hcservices/ which was imposed earlier to the effect that the regularisation would not amount to placement of any seniority. Accordingly, the persons coming under the category of Draughting Officers, Junior Draughting Officers and Overseers, who have been regularised as Assistant Engineers, by the proceedings dated 11.07.2008, were given seniority in the said cadre, as per the existing rules, subject to the outcome of the decision to be rendered by the Honourable Apex Court. Thereafter, by the proceedings dated 28.03.2011, the second respondent ordered regularisation of respondents 3 to 49 in W.P.No.11351 of 2011 with effect from the date noted against their names in Column No.5 of the Annexure, which was in the year 1999. It has also been stated in the said order that the same was passed subject to the final outcome of the decision of the Honourable Apex Court. The said order has been passed by the second respondent by taking note of the letter dated 04.06.2008 of the first respondent. Challenging the proceedings dated 04.06.2008, 11.07.2008, 30.04.2010 and 23.03.2011 respectively, of the respondents 1 and 2, these two writ petitions have been filed. Submissions of the learned counsel for the petitioners: 10.The learned counsel appearing for the petitioners in these two writ petitions submitted that the second respondent, having appointed the petitioners from the category of Draughtsmen, Overseers and Technical Assistants in the temporary capacity in the cadre of Assistant Engineers, cannot review the said order by passing the orders impugned. The learned counsel submitted that the orders impugned are one without jurisdiction, as there is no power of review available. It is his further submission that even assuming that such a power is available, the same cannot be reviewed after a period of 10 years. There is no necessity to change the interim arrangement made earlier, at this point of time. The private respondents having not questioned the earlier decision passed in the year 1998 by the second respondent and thereafter while passing the subsequent order on 11.07.2008, cannot seek to support the subsequent orders passed. The learned counsel also submitted that as per Rule 23(a)(i) of the Tamil Nadu State and Subordinate Services Rules, 1955, the persons who were in service, could not be rendered junior by the regularisation of the ad hoc candidates at a later stage. In support of his contention, the learned counsel has made reliance upon the following judgments, M.P.PALANISAMY vs. A.KRISHNAN [(2009) 6 SCC 428]; KALABHARATI ADVERTISING vs. HEMANT VIMALNATH NARICHANIA [(2010) 9 SC 437] and ASHOK PAL SINGH vs. ASHOK PAL SINGH vs. U.P.JUDICIAL SERVICES ASSOCIATION [JT 2010 (10) SC 131]. Submissions of the learned Additional Government Pleader for respondents- 1 & 2: 11.The learned Additional Government Pleader appearing for the respondents 1 and 2 submitted that the petitioners do not have https://hcservices.ecourts.gov.in/hcservices/ any locus standi to file these writ petitions and the writ petitions are not maintainable in law and facts. Having lost their case before the Honourable Division Bench and being a party represented by the Association before the Honourable Apex Court and having challenged the decision of the Honourable Division Bench, it is not open to the petitioners to re-agitate their claim in a different form. As the matter is seized of by the Honourable Apex Court, the relief sought for by the petitioners cannot be granted. The private respondents were given the benefits of the Government Order passed in G.O.Ms.No.1, Public Works (B-2) Department, dated 02.01.1990 and the validity of the said Government Order has been upheld, as noted by the Honourable Division Bench. The said decision has been taken since there was a stagnation for more than 10 years, in so far as the private respondents are concerned. The petitioners having failed to obtain appropriate orders from the Honourable Apex Court, cannot file these writ petitions. The decision made by the respondents 1 and 2 is due to the administrative contingency. Hence, it is submitted that the writ petitions will have to be dismissed. Submissions of the learned counsel for the private respondents: 12.The private respondents are entitled to get the benefit of the judgment of the Honourable Division Bench. The decision of the Honourable Division Bench has not been kept in abeyance. The private respondents are seeking the relief based upon the Government Order passed in G.O.Ms.No.1, Public Works (B-2) Department, dated 02.01.1990 which cannot be denied to them. Eventhough the said Government Order passed in the year 1990, the benefits could not be enjoyed by the private respondents for nearly 20 years. The private respondents are on the verge of retirement. The petitioners instead of agitating their right before the Honourable Apex Court, cannot come before this Court and stall the benefits confirmed on the private respondents. The entire writ petitions filed are nothing but clear abuse of process of law, as the petitioners are seeking to re- agitate the issues, which have been concluded by the Honourable Division Bench. Hence the learned counsel submitted that the writ petitions will have to be dismissed. 13.Heard the learned counsel for the petitioners and the learned Additional Government Pleader appearing for the respondents 1 and 2 as well as the learned counsel appearing for the private respondents and perused the entire materials available on record. Findings:- 14.The question of appointment to the cadre of Assistant Engineers and the consequential inter se seniority between the petitioners and the private respondents, is admittedly pending consideration before the Honourable Apex Court and therefore, this Court cannot go into the same. The facts narrated above would also show that the judgment of the Honourable Division Bench, has not been https://hcservices.ecourts.gov.in/hcservices/ kept in abeyance. Therefore having failed to obtain appropriate orders from the Honourable Apex Court for the past four years, it is not open to the petitioners to contend that the benefits of the judgment of the Honourable Division Bench, shall not be extended to the private respondents. The writ petitions as filed are not maintainable in law and facts. The petitioners are attempting to re- agitate their claim after failing to get appropriate orders from the Honourable Apex Court. 15.By taking note of the administrative exigency coupled with the fact that there is no interim order prohibiting the implementation of the judgment of the Honourable Division Bench, the respondents 1 and 2 have duly implemented the same. The writ petitions as filed would amount to reviewing the orders passed by the Honourable Division Bench. The petitioners having lost their case before the Honourable Division Bench cannot seek to stall its effect in a different forum. In other words, the attempt of the petitioners is nothing but seeking a review of the decision of the Honourable Division Bench, which can only be done by the Honourable Apex Court. Merely because the respondents 1 and 2 having not fully implemented the orders of the Honourable Division Bench on the earlier occasion, it is not open to the petitioners to contend that the decision made by them earlier will have to be continued notwithstanding the decision of the Honourable Division Bench. When a court of law has rendered a decision, then the benefit flows from the said judgment would automatically accrue to the parties concerned. Denying the said benefits would amount to interfering with the process of justice and against the rule of law. 16.There is absolutely no basis in the argument of the learned counsel for the petitioners that the second respondent has got no power of review of the earlier decision. The second respondent has got exercised any independent power but merely implemented the order of the Court. The only question for consideration is as to whether the respondents 1 and 2 have given effect of the orders of the Honourable Division Bench or not. Merely because the decision of the Honourable Division Bench has not given effect to in its entirety earlier, the subsequent implementation cannot be found fault with. The mistake committed by the respondents 1 and 2 have been rectified correctly subsequently, by passing the impugned orders. The impugned orders are clear and specific to the effect that they have been passed subject to the outcome of the decision to be made by the Honourable Apex Court. The petitioners having failed to obtain interim orders before the Honourable Apex Court, cannot seek to get the same through this Court, which is totally impermissible in law. In a multi court judicial system, the court of first instance shall not deal with the decision rendered by a higher forum, as that would upset the doctrine of finality of decisions. Re-litigation in any forum shall not be allowed, moreso when the issues are pending consideration with the highest forum. What could be done directly by https://hcservices.ecourts.gov.in/hcservices/ a higher forum, cannot be permitted to be done indirectly by way of a fresh litigation through another forum. 17.The judgments relied upon by the learned counsel for the petitioners are not at all relevant to the issue involved in these writ petitions. There is no difficulty in appreciating the settled position of law that a power of review is a creature of statute. However, in the present case on hand, the respondents 1 and 2 have not exercised the power of review, but merely implemented the orders of the Honourable Division Bench, as the rights of the private respondents emanate from the judgment rendered by it. The question for consideration before this Court is as to whether what would be the effect of the judgment rendered and not what is the nature of the order passed by the respondents 1 and 2. As the respondents 1 and 2 have atleast now implemented the orders of the Honourable Division Bench, this Court does not find any infirmity. The contention of the learned counsel for the petitioners by basing reliance upon Rule 23 (a)(i) of the Tamil Nadu State and Subordinate Services Rules, 1955, cannot be countenanced by this Court. This is a matter which the petitioners can agitate only before the Honourable Apex Court and not before this Court. More so, inasmuch as the earlier orders passed by the second respondent dated 29.04.1998, 15.07.1998 and 07.01.1999 having been passed in conformity of the order of the Honourable Division Bench, the very basis of the writ petitioners would fall to the ground, as it cannot be said that the appointments of the private respondents are temporary in nature. 18.The jurisdiction of this Court under Article 226 of the Constitution of India is discretionary and extraordinary. A writ of certiorari, will have to be issued only when a legal right is infringed. This Court is of the view that the petitioners do not have a legal right and the writ petitions filed are totally misconceived. The order passed by the authority implementing the judgment rendered by a competent court of law, cannot be said as a one violating legal rights. Therefore, this Court is of the considered view that these writ petitions are liable to be dismissed, as the discretion of this Court under Article 226 of the Constitution of India is not required to be exercised. 19.In the light of the discussions made above, this Court is of the considered view that the Writ Petitions are liable to be dismissed and accordingly, the same are dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar sri https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary Government of Tamilnadu Public Works Department Fort St.George Chennai – 600 009. 2.The Engineer-in-Chief and Chief Engineer (GI) Public Works Department PWD Campus, Chepauk Chennai – 600 005. 2 cc to Mr.P.Chandrasekran , Advocate, Sr.No.63720 2 cc to Mr.S.Vadivelu , Advocate, Sr.No.62721 5 cc to Mr.K.Premkumar , Advocate, Sr.No.63767 2 cc To Government Pleader, SR.No.64217 and 63309 1 cc to Mr. N.Subramaniyan, Advocate, Sr.No.63953 1 cc To Government Pleader, SR.No.63280 W.P. NO.24567 OF 2010, & 11351 OF 2011 ug(co) pmk.21.10.2011 https://hcservices.ecourts.gov.in/hcservices/