IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.08.2008 CORAM THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR. JUSTICE K.KANNAN Writ Petition No.18510 of 2008 and M.P.No.1 of 2008 1. The State of Tamil Nadu rep. by the Secretary to Government, Finance (Co-operative Audit) Department, Fort St. George, Chennai-9. 2. The Director of Co-operative Audit, Slum Clearance Board Complex, Chennai-5. ... Petitioners. Vs 1. D.V.Krishnamoorthy, Assistant Director of Co-operative Audit (Retired), 19, Valayalkarar Street, Erode. 2.The Registrar, Tamil Nadu Administrative Tribunal, Chennai-104. 3.L.Antony ...Respondents. Prayer:- Writ Petition under Article 226 of the Constitution of India praying for the issuance of the writ of Certiorari to call for the records of the 2nd respondent pertaining to his order in O.A.No.7564 of 1993 dated 16.12.1994 and quash the same. For Petitioner : Mr.P.S.Raman, Addl. Advocate General assisted by Mr.K.Elango, Spl. Govt. Pleader. O R D E R (Order of the Court was made by P.K.MISRA, J.) Heard Mr.P.S.Raman, learned Additional Advocate General, appearing for the petitioners. https://hcservices.ecourts.gov.in/hcservices/ 2. Respondent No.1 in this writ petition has filed O.A.No.7564 of 1993 before the State Administrative Tribunal challenging G.O.Ms.No.474, Finance (T.Hg & CA) Department, dated 09.05.1990, wherein certain relaxation was given in respect of some of the employees of the Co-operative Audit Department, which had adversely affected the promotional right of the applicant. The Tribunal, by judgment dated 16.12.1994, while granting the relief to the applicant by stating that his right to get promotion would not have been adversely affected by such subsequent relaxation, went on to observe as follows:- "The orders exempting personnel transferred from Cooperation Department from passing the tests in G.O.Ms.No.160 Finance (CA) Department, dated 5.3.91 and G.O.Ms.No.1125 Finance (TH & CA) Department, dated 14.11.1990, are executive orders, which cannot have the effect of amending the Rules. No amendment to the Rules have been issued, to provide such persons transferred from the Cooperative Department, would be exempted from the requirements of the Rules, relating to qualifying tests. The proper course would have been to allow time for passing tests, possibly two to three years and during which period, promotion could be made subject to the individuals acquiring the qualification, within the time specified. In the absence of any amendment to the Rules, exemption by executive orders cannot over-ride the requirements of the Rules and appointment of persons without the qualifications prescribed by the Rules, in preference to persons fully qualified is ab initio, illegal. Exemption from the requirements of the Rules had not been given by relaxation under Rule 48 of the Tamil Nadu State and Subordinate Service Rules. Thus, no action has been taken with reference to the provisions of the Rules, which would permit regularisation of persons appointed without the qualifications prescribed by the adhoc rules, for the posts in the Cooperative Audit Department. ........ Relaxations under Rule 48 or exemptions by amending Rules should precede appointments. Amendments that may be made hereafter or relaxation under Rule 48 of the Tamil Nadu State and Subordinate Service Rules issued hereafter cannot affect the rights of the applicant with reference to his qualifications. He was entitled to be appointed in accordance with the Rules, and that right cannot be taken away by any action taken hereafter with retrospective effect. He had https://hcservices.ecourts.gov.in/hcservices/ been appointed temporarily also with effect from a later date, and according to the Rules, he should have been appointed from an earlier date, when an unqualified persons was appointed. He is therefore entitled to all benefits as if he was appointed on the earlier date, on which such unqualified person was appointed." 3. Thereafter, the present petitioners, viz., the State of Tamil Nadu and the Director of Co-operative Audit, filed a Review Application, R.A.No.72 of 1995, for review of such a decision of the Tribunal. The said Review application was dismissed by the Tribunal, by judgment dated 26.03.2002. At that stage, the State Government filed a Special Leave Petition before the Supreme Court, which was disposed of by the Supreme Court, by order dated 11.10.2002, wherein it has been observed as follows:- "At the request, learned counsel for the petitioners is permitted to withdraw the special leave petition with liberty to approach the High Court in the first instance in terms of the law declared by this Court in L.Chandra Kumar -vs- Union of India & Ors. (1997 [3] SCC 261). Dismissed as withdrawn." 4. Thereafter, the present petitioners filed W.P.No.28905 of 2005 after a lapse of 3 years specifically challenging the order dated 26.03.2002 in R.A.No.72 of 1995 and C.A.No.437 of 1995. The said writ petition was dismissed by the Division Bench of this Court, by judgment dated 30.08.2007, wherein it has been observed as follows:- "The Review Application was dismissed by an order dated 26.03.2002. Once the application to review the main order is dismissed, it merges with the main order. Therefore, the petitioner has to question the main order in the O.A. Instead of filing the writ petition against the dismissal of the Review Application. Therefore, the writ petition against the Review Application is not maintainable. 4. In the result, the writ petition is dismissed as not maintainable. No costs." 5. Thereafter, the present petitioners have filed this writ petition on 30th July, 2008, after a lapse of about 11 months. 6. The main contention raised by the learned Additional Advocate General appearing for the State is to the effect that even though in the Government Order dated 30.10.1990, there was no https://hcservices.ecourts.gov.in/hcservices/ specific reference to the power available under Rule 48 of the Tamil Nadu State and Subordinate Service Rules, it was obvious that such order has been passed in exercise of the power under Rule 48 and the competent authority had the jurisdiction to pass an order of relaxation, which may have retrospective effect and therefore, the Tribunal was not correct in passing the impugned judgment dated 16.12.1994. It is further contended by the learned Additional Advocate General that even though the State Government is willing to comply with the judgment dated 16.12.1994, as it is construed as a res judicata, such an order of the Tribunal may be considered as a precedent in future and the power available under Rule 48 would be clogged for ever by virtue of the interpretation given by the Tribunal. 7. So far as the order of the Tribunal dated 16.12.1994 is concerned, it would be inappropriate to go into the question as to whether the said order should be implemented, insofar as the 1st respondent is concerned, keeping in view the fact that in the meantime, respondent No.1 as well as the other persons concerned have all retired and it would have become practically final about 14 years back. This is moreso particularly in the context of the subsequent laches on the part of the State Government in pursuing their remedies. We have already noticed that the Supreme Court had disposed of the S.L.P., by order dated 11.10.2002 and yet, the State Government took another 3 years to file a writ petition, W.P.No.28905 of 2005. Similarly, even after disposal of the writ petition, the State Government has taken another 11 months to file the present writ petition challenging the original order dated 16.12.1994. In such view of the matter, we are not inclined to go into the correctness or otherwise of the ultimate direction given by the Tribunal in O.A.No.7564 of 1993. 8. So far as the apprehension expressed by the Additional Advocate General that the decision of the Tribunal, if not interfered with, may be required to be implemented in similar other cases, is not acceptable. First of all, such a judgment cannot be construed as res judicata, as it is well known that res judicata is applicable when the litigation is between the same parties or persons claiming through the same parties. There is also no justification for the Additional Advocate General to apprehend that the order of the Tribunal would be construed as a judicial precedent in other cases. We do not think that the order of the Tribunal can be construed as a precedent. When such a dispute would arise in future, obviously, it has to be decided by the High Court and it would not bind the Tribunal or any other inferior authority, particularly keeping in view the fact that the Tribunal has been abolished in the State. Even though the order of Tribunal is to be normally followed by the same Tribunal, in view of the law laid down by the Supreme Court in Gopabandhu Biswal v. Krishna Chandra Mohanty, (1998) 4 SCC 447, that the Tribunal cannot ignore its earlier judgment, where it has ruled. https://hcservices.ecourts.gov.in/hcservices/ “The use of precedent is an indispensable foundation upon which to decide what is the law and its application to individual cases; it provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.” But, such a rule of precedent may be available to bind the subsequent decision on the same issue by the same Tribunal and that in the case of difference of opinion, the appropriate procedure would be to refer the case to a larger Bench, the same may not apply vis-a-vis the High Court. That apart, as and when such a question would arise in future, it would be open to the State Government to contend otherwise and merely because the previous order became final between the parties to the proceedings in the Tribunal would not stand in the way of the State contending otherwise. This position is apparent from the judgment of the Supreme Court reported in Col.B.J.Akkara (Retd.) -vs- Government of India {(2006) 11 Supreme Court Cases 709), wherein it was observed as follows:- "A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on account of the non-comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of the financial implications is realised, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a “pick-and- choose” method only to exclude petitioners on account of mala fides or ulterior motives. Be that as it may. On the facts and circumstances, neither the principle of res judicata nor the principle of estoppel is attracted. The administrative law principles of legitimate expectation or fairness in action are also not attracted. Therefore, the fact that in some cases the validity of the circular dated 29-10-1999 (corresponding to the Defence Ministry circular dated 11-9-2001) has been upheld and that decision has attained finality will not come in the way of the State defending or enforcing its circular dated 11-9-2001. 9. As already indicated, the Tribunal having been abolished, there is no possibility of such an order of the Tribunal to be cited as a Precedent in the State Administrative Tribunal. If the question https://hcservices.ecourts.gov.in/hcservices/ arises in the High Court, obviously the High Court would not be binding on any observations made by the Tribunal in the said case. In other words, as and when such a question would arise in future, that may be decided on its own merits. Accordingly, we do not think that this is a fit case where we should interfere with the ultimate order passed by the Tribunal. The writ petition is, accordingly, disposed of. Connected M.P. is closed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. bs/ To 1. The Secretary to Government, The State of Tamil Nadu Finance (Co-operative Audit) Department, Fort St. George, Chennai-9. 2. The Director of Co-operative Audit, Slum Clearance Board Complex, Chennai-5. + 1 CC to the Government Pleader SR NO.43824 Writ Petition No. 18510 of 2008 and M.P.No.1 of 2008 GR {CO} TP/25.8.08 https://hcservices.ecourts.gov.in/hcservices/