P.Sekar, v. R.Gunasekaran,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 22.06.2017 Delivered on : 30.06.2017

CORAM:

THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN and THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN Review Application Nos.126 to 130 of 2013 and 104 and 105 of 2017 and Connected Miscellaneous Petitions Review Application No.126 of 2013 1.P.Sekar 2.R.Sadeeshkumar 3.G.Govindaraj 4.R.Ramakichenan 5.S.Kamalaveny 6.B.Balamourthy ... Petitioners Vs.

1.R.Gunasekaran 2.J.Gasper Calinarayar 3.G.Kunasekaran 4.Union of India, Rep. by its Secretary to Government (CT) Commercial Taxes Department, Secretariat Buildings, Union Territory of Puducherry, Puducherry.

5.The Commissioner (CT) Commercial Taxes Department, Puducherry.

6.Under Secretary to Government, Government of Puducherry, Department of Personnel and Administrative Reforms (PW), Secretariat Buildings, Union Territory of Puducherry,Puducherry.

7.B.Aroumougam 8.V.Punithavally 9.The Central Administrative Tribunal, Madras Bench, Rep. by its Registrar, High Court Campus, Chennai -104.

... Respondents Review Application filed under Order 47 Rule 1 read with Section 114 of C.P.C., to review the order dated 04.12.2012 in W.P.No.4819 of 2010.

Mr.G.R.Swaminathan, Senior Counsel for Mr.R.Thiagarjan : For Petitioners in Rev.Appl.Nos.126 and 127 of 2013 Mr.VijayNarayan Senior Counsel for Mr.S.Santhankrishnan : For Petitioners in Rev.Appl.Nos.128 to 130 of 2013 Mr.Syed Mustafa Spl.Govt.Pleader : For Petitioners in Rev.Appl.Nos.104 and 105 of 2017 and For Respondents 4 and 5 in Rev.Appl.No.126 of 2013 For Respondents 3 and 4 in Rev.Appl.Nos.127 and 128 of 2013 For Respondents 1 and 2 in Rev.Appl.No.129 of 2013 Mr.R.Malaichamy : For Respondents 1 to 3 in Rev.Appl.Nos.126 and 130 of 2013 Other Respondents : No appearance

C O M M O N O R D E R K.K.SASIDHARAN,J.

These review applications are filed to review the order dated 4 December, 2012 in W.P.Nos.4819, 4820, 12142, 24085, 24086 of 2010, 23389 and 23390 of 2012, whereby and where under, the Division Bench was pleased to dismiss the writ petitions filed by the applicants, challenging the common order passed by the Madras Bench of the Central Administrative Tribunal, setting aside the selection to the post of Assistant Commercial Tax Officer in the Union Territory of Puducherry on account of awarding grace marks. Brief Facts:

2. The Review applications are at the instance of the Government of Union Territory of Puducherry and other petitioners in the writ petitions. The petitioners in the writ petitions, who are the applicants in the Review Application Nos.126,128 to 130 of 2013, are hereinafter referred to as "Applicants" and the respondents in the writ petitions, who were the applicants in the Original Applications are referred to as "Respondents".

3. The applicants and the respondents submitted applications for appointment to the post of Assistant Commercial Tax Officer, pursuant to the notification issued by the Government of Puducherry. The review applicants were selected by the Recruitment Committee. The select list was challenged by the respondents before the Central Administrative Tribunal primarily on the ground that the Selection Committee erred in awarding 10 marks as grace marks taking into account the out of syllabus questions relating to Central Sales Tax Act. The respondents contended that awarding even a single mark as grace mark would affect the selection process. The respondents, therefore, made a prayer to quash the Select List dated 4 December, 2006 and a consequential prayer to select the candidates on the basis of the marks obtained in the Limited Departmental Competitive Examination held on 26 November, 2006.

4. Before the Madras Bench of the Central Administrative Tribunal, the Government of Puducherry, justified the selection process by contending that 10 marks have been awarded uniformly to all the candidates for 10 questions, as it was from Central Sales Tax Act.

According to the Government, the syllabus notified on 13 June, 2002 does not contain any indication that questions would be asked from Central Sales Tax Act and as such, Selection Committee uniformly awarded 10 marks to all the candidates. It was contended that grace marks have been awarded in such a way by reducing the marks already awarded to the correct answers in respect of question Nos.91 to 100, with a view to avoid duplication in the award of marks. The Government further contended that all the 53 candidates have been benefited by the award of grace marks.

5. The Central Administrative Tribunal quashed the Select List and directed to conduct fresh selection as per the Recruitment Rules. The Tribunal observed that the very purpose of assessing the relative merit would be diluted in case, grace marks are awarded. The Tribunal further observed that the syllabus was not in accordance with the Recruitment Rule and as such, award of grace marks long after evaluation of the answer papers was not in accordance with law.

6. The common order passed by the Central Administrative Tribunal dated 17 April, 2009 was challenged by the applicants and Government of Puducherry before this Court. The writ petitions were

dismissed with an observation that the candidates were expected to know both General Sales Tax Act and Central Sales Tax Act and as such, Selection Committee was not correct in awarding grace marks.

7. The Special Leave Petitions filed against the common order dated 4 December, 2012 were dismissed by the Hon'ble Supreme Court in SLP (Civil) Nos.13712 and 13713 of 2013 and etc. batch by order dated 18 April, 2013.

8. The applicants, after the dismissal of the Special Leave Petitions filed these review petitions invoking Order 47 Rule 1 of the Code of Civil Procedure on the ground that there is a mistake and error apparent on the face of the record.

9. The applicants contended that while dismissing the writ petitions, this Court failed to consider the prayer in the Original Applications and the marks obtained by the selected candidates and the respondents. It is the contention of the applicants that even if grace marks are not awarded, still, the respondents would not be selected as they secured less marks than the marks secured by the selected candidates. According to the applicants, this aspect was omitted to be

considered by this Court and as such, the order requires to be corrected by exercising the review jurisdiction.

10. Similar contentions were taken by the Government of Puducherry in the Review Applications in Rev.Appl.Nos.104 and 105 of 2017.

Summary of Submissions:

11. The learned Senior Counsel for the applicants in Review Application Nos.128 to 130 of 2013 contended that while confirming the order passed by the Tribunal, this Court omitted to consider the basic fact that even if grace marks given to the candidates are excluded, still, the respondents would not come within the zone of consideration. The learned Senior Counsel contended that the relief in the original applications was to set aside the select list and consider the case of the applicants therein on the basis of the marks obtained in the Limited Departmental Competitive Examination. The learned Senior Counsel further contended that even if the selection is set aside, still, the respondents, would not be selected, in view of the less marks scored by them compared to the selected candidates.

12. The learned Senior Counsel for the applicants in Review Application Nos.126 and 127 of 2013 by citing our attention to the pleadings and the consequential prayer in the Original Applications contended that the respondents wanted only redrawal of Selection List on the basis of the Test conducted on 26 November, 2006. The Tribunal, therefore, erred in directing fresh selection by issuing notification. This aspect was not considered by this Court.

13. The learned Special Government Pleader (Services), Puducherry, took a similar contention to justify the review applications filed by the Government. The learned Special Government Pleader by placing on record the statement of marks obtained by the applicants and the respondents contended that even if grace marks is deducted, still, the selected candidates should be given appointment, as they secured more marks than the applicants in the original applications.

14. Since arguments were advanced on the basis of the statement of marks, the learned counsel for the respondents/applicants in the original applications made a request before this Court to verify the records including the answer sheets. The learned Special

Government Pleader therefore produced the records in a sealed cover. The sealed cover was opened in the presence of the learned counsel for all the parties. The records were verified by the learned counsel for the respondents in the presence of the learned Special Government Pleader and the officials of the Commercial Tax Department and General Administration Department, Puducherry.

15. The learned counsel for the respondents after verification of the records submitted that these records were not produced before this Court earlier and as such, the Court was not having the benefit of the details regarding the marks secured by the parties. The learned counsel contended that in spite of setting aside the selection, selected candidates are even now continuing and the said fact would prove that there was an attempt to favour them by giving grace marks. According to the learned counsel, it is not permissible to review the order on the basis of records, which was not produced earlier. Analysis:

16. The respondents, after publication of the Select List for appointment to the post of Assistant Commercial Tax Officer by Limited Departmental Competitive Examination in the Commercial Taxes

Department, Puducherry, filed Original Applications before the Madras Bench of the Central Administrative Tribunal. The selection was challenged on the ground that the Selection Committee awarded grace marks to all the candidates and the same tilted in favour of the selected candidates. Though the Recruitment Rule to the post of Assistant Commercial Tax Officer provides for conducting test in Puducherry General Sales Tax Act, 1967 and Central Sales Tax Act, 1956, the Central Sales Tax Act was not included in the syllabus, as a subject. The questions were not confined to Puducherry General Sales Tax Act. There were questions also from the Central Sales Tax Act.

The Selection Committee taking into account the questions included in the question paper relating to Central Sales Tax Act decided to give 10 marks as Grace Marks to all the candidates. The questions 91 to 100 were from Central Sales Tax Act. The Selection Committee, therefore, deducted the marks secured by the candidates for attending question Nos.91 to 100 and thereafter, awarded 10 marks uniformly to all the candidates. The Select List was prepared by taking into account the grace marks.

17. Before the Central Administrative Tribunal, the respondents made a twin prayer. The first prayer was to set aside the Select List

dated 4 December, 2006. The challenge was only to the General Category. There was no challenge to the appointments made against Reserved Category. The second prayer reads thus: "Directing the respondents 1 to 3 to select candidates for promotion by direct recruitment to the above said posts considering the applicants also, only on the basis of the marks obtained in the limited departmental competitive examination which was held on 26.11.2006".

18. While considering the legality and correctness of the Select List, dated 4 December, 2006 and setting aside the same on account of awarding grace marks, the second limb of the prayer was omitted to be considered by the Central Administrative Tribunal. The Tribunal instead of granting the consequential prayer, directed issuance of fresh notification and selection.

19. When a challenge was made to the common order passed by the Central Administrative Tribunal, it was pleaded before this Court that even if the decision to give grace marks is set aside, still, the respondents would not be selected, as they secured less marks than the selected candidates. The failure on the part of the Government of Puducherry to produce the records before this Court and highlight this

moot point appears to be the sole reason for not considering the second prayer, to complete the selection process on the basis of the marks obtained in the Limited Departmental Competitive Examination.

20. The Government of Puducherry and the other applicants have contended before us that the Division Bench failed to take into account the consequential prayer in the original applications and the contentions taken in the writ petitions that even if the marks obtained in the Limited Departmental Competitive Examination is taken as the basis, still, the respondents would not be selected.

21. There is no dispute that the respondents made a prayer before the Central Administrative Tribunal to quash the Select List and thereafter consider the case of the candidates purely on the basis of the marks obtained in the Limited Departmental Competitive Examination. To put it otherwise, the request was to consider the case of the candidates without taking into account the grace marks awarded by the Selection Committee.

22. We have perused the pleadings in the Original Applications as well as in the writ petitions filed before this Court. It is true that the

Government of Puducherry and some of the applicants herein have taken up a contention that even if marks obtained by the candidates in the examination is taken as the basis, still the respondents are not eligible for appointment, in view of the comparatively less marks obtained by them. Even though such a contention was taken, there is nothing on record to show that the attention of the Division Bench was invited with respect to the second prayer. The Government was expected to produce the records before the Court in the light of the consequential prayer regarding continuation of the selection process by taking into account the marks obtained in the Limited Departmental Competitive Examination.

The failure on the part of the Government of Puducherry to produce the records before this Court earlier and make submissions with regard to the second limb of the prayer resulted in confirming the order passed by the Tribunal. Merely by producing certain materials and including them in the typed set of papers, it cannot be expected that the Court would scan all those materials without there being any positive action on the part of the Government to cite the attention with regard to those material documents. Therefore, it is clear that the Division Bench was not having the benefit of looking into the selection file and more particularly, the statement of marks.

23. The core question is as to whether on account of the mistake committed by the Government of Puducherry in not citing the attention of the Court with regard to the second prayer and the statement of marks, the error apparent on the face of the record should remain on the file of this Court of Record.

24. The review jurisdiction is essentially a corrective jurisdiction. The Court is entitled to review the judgment on account of some mistake or error apparent on the face of the record. The Court is empowered to consider the review of the judgment for any other "sufficient reason" also.

Legal Position:

25. The Hon'ble Supreme Court in S. Nagaraj v. State of Karnataka, [1993 Supp (4) SCC 595] indicated the scope of review jurisdiction in the following words:

"18.Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in

Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court."

26. In Board of Control for Cricket in India v. Netaji Cricket Club, (2005) 4 SCC 741, the Hon'ble Supreme Court considered the scope and ambit of review jurisdiction under Order 47 Rule 1 of Civil Procedure Code. The Supreme Court said: "88. ... Section 114 of the Code empowers a court to review its order if the conditions precedent laid down therein are satisfied. The substantive provision of law does

not prescribe any limitation on the power of the court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit.

89.Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.

90.Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit"."

27. In Lilly Thomas and others vs. Union of India and others, [2000(6) SCC 224], the Supreme Court observed that in case the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error.

28. The Hon'ble Supreme Court in State of Rajasthan vs. Surendra Mohnot, 2014(8) Scale 41, indicated the importance of acceptance of mistake.

The Supreme Court said :- "non acceptance of a mistake is not a heroic deed. On the contrary, it reflects flawed devotion to obstinacy. The "pink of perfection" really blossoms in acceptance.

29. The Supreme Court in Surendra Mohnot observed that when self evident errors come to the notice of the Court and they are not rectified in exercise of review jurisdiction or jurisdiction of recall which is a facet of plenary jurisdiction under Article 226 of the Constitution of India, a grave miscarriage of justice would occur.

30. The jurisdiction under Article 226 of the Constitution of India is otherwise known as "Equity jurisdiction". This Court is having plenary jurisdiction. Justice is above all. Technicality should not stand in the way of rectifying errors or bonafide mistakes. Review after the dismissal of Special Leave petition :-

31. The Supreme Court in Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455, indicated the legal position regarding maintainability of review petition before the High Court after the dismissal of special leave petition.

The Supreme Court said :-

7. There is no dispute to the settled proposition of law that dismissal of the special leave petition in limine by this Court does not mean that the reasoning of the judgment of the High Court against which the special leave petition has been filed before this Court stands affirmed or the judgment and order impugned merges with such order of this Court on dismissal of the petition. It simply means that this Court did not consider the case worth examining for the reason, which may be other than merit of the case. Nor such an order of

this Court operates as res judicata. An order rejecting the special leave petition at the threshold without detailed reasons therefore does not constitute any declaration of law or a binding precedent.

32. The Hon'ble Supreme Court in Gangadhara Palo v. Revenue Divisional Officer, (2011) 4 SCC 602, held that a review petition is maintainable before the High Court in spite of dismissing the Special Leave petition, if the order was not on merits. The Supreme Court said:

5. We regret, we cannot agree. In our opinion, it will make no difference whether the review petition was filed in the High Court before the dismissal of the special leave petition or after the dismissal of the special leave petition. The important question really is whether the judgment of the High Court has merged into the judgment of this Court by the doctrine of merger or not.

6. When this Court dismisses a special leave petition by giving some reasons, however meagre (it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges into the judgment of the higher

court. Hence, if some reasons, however meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist.

7. The situation is totally different where a special leave petition is dismissed without giving any reasons whatsoever. It is well settled that special leave under Article 136 of the Constitution of India is a discretionary remedy, and hence a special leave petition can be dismissed for a variety of reasons and not necessarily on merits. We cannot say what was in the mind of the Court while dismissing the special leave petition without giving any reasons. Hence, when a special leave petition is dismissed without giving any reasons, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors apparent on the face of the record. If, on the other hand, a special leave petition is dismissed with reasons, however meagre (it can be even of just one sentence), there is a merger of the judgment of the High Court in the order of the Supreme Court.

33. The Supreme Court has thus made the law clear that review petition is maintainable even after dismissal of the Special Leave Petition. In the present case, the Supreme Court dismissed the Special Leave Petitions without indicating reasons on merits. The review would therefore come within the four corners of Order 47 Rule 1 of Code of Civil Procedure and the parameters laid down by the Supreme Court. We are therefore of the view that this is a fit case to exercise the review jurisdiction.

34. The Selection Committee awarded marks to the candidates on the basis of their performance in the Limited Departmental Competitive Examination held on 26 November, 2006. It is true that taking into account the out of syllabus questions relating to Central Sales Tax Act, a decision was taken to award 10 marks.

35. Since the Recruitment Rule provides for knowledge in both Central Sales Tax and the Pondicherry General Sales Tax, the candidates were expected to know both the statutes. The Selection Committee appears to have taken the advice of an outsider to award grace marks. The Tribunal was therefore justified in cancelling the Select List prepared after awarding grace marks.

36. The respondents challenged the award of grace marks in the original applications. The substantial prayer was not to conduct a fresh examination or initiation of fresh selection process. It was essentially to continue the selection process by taking into account the marks obtained by the candidates in the Limited Departmental Competitive Examination. The Tribunal after setting aside the Select List dated 4 December, 2006, directed the Government to issue a fresh notification in accordance with the Recruitment Rules and thereafter, select the candidates on merits. The direction to conduct a fresh selection was beyond the scope of the original applications. Even the respondents have not made any such request for conducting a fresh selection by issuing another notification. The request was only to remove the grace marks and proceed with the selection process.

37. The statement of marks produced by the learned Special Government Pleader was cross verified with the answer sheets produced by him in a sealed cover.

38. We extract below the statement of marks of the applicants (selected candidates) and the contesting respondents (non-selected candidates):- Statement of marks obtained by the applicants Sl.

No.

Roll Dummy Name of the candidate Marks scored (1-100) Marks scored (91-100) (C)= (A)-(B) Marks Added Revised No.of question attended Rank No.

No.

Final Marks (C)+(D) (D) (A) (B) from 91 to 100 29-P P.SEKAR 53-P R.SADHEES KUMAR 41-P B.AROUMOUGAM 5-P G.GOVINDHARAJ 24-P R.RAMAKICHENAN 22-P V.PUNITHAVALLY 11-P S.KAMALAVENY 2-P B.BALAMOURTHY 34-P G.SIVAGNANAME(SC) 3-P T.BALAMOUROUGAN(SC) Statement of marks obtained by the contesting Respondents Sl.

No.

Roll Dummy Name of the candidate Marks scored (1-100) Marks scored (91-100) (C)=(A)-(B) Marks Revised No.of question attended Rank No.

No.

Added Final Marks (C)+(D) (D) (A) (B) from 91 to 100 55-P N.SOUNDIRARADJANE 13-P G.KUNASEKARAN 38-P R.VASSANDHAN 7-P R.GUNASEKARAN 45-P J.GASPAR CALINGARAYAR

39. The statement would make the position very clear that even without the grace marks, the selected candidates are entitled to be appointed as Assistant Commercial Tax Officers. The candidates 9 and 10 viz., G.Sivagnaname and T.Balamourougan were appointed against Reserved Post. There was no challenge to their selection. The candidates at Sl.Nos.1 to 8 are entitled to be selected even if the marks secured by them for the entire 100 questions are taken into account. Similarly, in the event of deleting the marks obtained by them in the Central Sales Tax Act questions, still, they are entitled to be appointed. The Selected candidates have secured more marks than all the nonselected candidates. In view of the higher marks obtained by the selected candidates than the non-selected candidates, the Tribunal was not correct in setting aside the earlier selection without proceeding further by directing the Selection Committee to re-draw the Select List by taking into account the marks secured by the candidates in the Limited Departmental Competitive Examination.

40. The basic fact regarding the marks obtained by the selected and non-selected candidates and the consequential prayer for continuation of the selection process on the basis of the marks obtained

by the candidates in the Limited Departmental Competitive Examination were omitted to be considered by this Court and the same resulted in dismissing the writ petitions filed by the applicants and Government of Puducherry. The said fact would go to the root of the matter. We are therefore of the considered view that the petitioners have demonstrated a clear case for review.

41. We, therefore, review the common order dated 4 December, 2012 in W.P.Nos.4819, 4820, 12142, 24085, 24086 of 2010, 23389 and 23390 of 2012.

Disposition:

42. We confirm the order passed by the Tribunal, setting aside the Select List prepared by giving grace marks to all the candidates. We set aside the direction to conduct fresh examination in accordance with the Recruitment Rules for selection of Assistant Commercial Tax Officer. We grant the consequential relief claimed by the respondents in the Original Applications, by directing the Government of Puducherry to redraw and publish the Select List strictly on the basis of the marks obtained by the candidates in the Limited Departmental Competitive Examination held on 26 November 2006. Such exercise shall be

completed within a period of four weeks from the date of receipt of a copy of this order.

43. In the upshot, we allow the review applications. No costs. Consequently, connected miscellaneous petitions are closed. (K.K.SASIDHARAN.,J.) (M.V.MURALIDARAN.,J.) 30 June 2017 svki To 1.Union of India, The Secretary to Government (CT) Commercial Taxes Department, Secretariat Buildings, Union Territory of Puducherry, Puducherry.

2.The Commissioner (CT) Commercial Taxes Department, Puducherry.

3.Under Secretary to Government, Government of Puducherry, Department of Personnel and Administrative Reforms (PW), Secretariat Buildings, Union Territory of Puducherry, Puducherry.

4.The Central Administrative Tribunal, Madras Bench, Rep. by its Registrar, High Court Campus, Chennai -104.

K.K.SASIDHARAN.,J.

and M.V.MURALIDARAN.,J.

(svki) Order in Rev.Appl Nos.126 to 130 of 2013 and 104 and 105 of 2017 30.06.2017 http://www.judis.nic.in