S. Sivanesan v. Union of India Government of Pondicherry

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 24..3..2008Coram:The Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW. P. Nos. 29526 and 29527 of 2002S. Sivanesan ... Petitioner in both W.Ps.-vs-1.Union of IndiaGovernment of PondicherryThrough the Secretary to Government for PowerChief SecretariatPondicherry2.Superintending EngineerElectricity DepartmentPondicherry... RR1 and 2 in both W.Ps.3.A. Veerasamy... R3 in W.P. No. 29526 of 20023.C. Mani4.N. Bharadhan5.A. Premkumar Doss6.S. Natarajan7.R. Radhakrishnan8.A. George Basin Rayan9.V. Gopalan10.G. Emperuman11.M. Kalaimani12.A. Veerasamy .. RR3 to 12 in W.P. No. 29527 of 200213.The RegistrarCentral Administrative TribunalChennai BenchChennai.. 4th Respondent in WP.No.29526/02 and1st Respondent in WP.No.29527/2002.Petitions under Article 226 of the Constitution of India prayingto issue a writ of Certiorari calling for concerned records relatingto quash the impugned order dated 22.01.2001 passed by the Tribunalin O.A. Nos. 571 of 1998 and 1021 of 1999 respectively. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. M. GnanasekarFor Respondents 1&2: Mr. Syed Mustafa, AGP (Puducherry)COMMON ORDERK. CHANDRU, J.Heard the arguments of Mr. M. Gnanasekar, learned counselappearing for the petitioner and Mr. Syed Mustafa, learnedAdditional Government Pleader (Puducherry) representing therespondents 1 and 2 and have perused the records.2.The petitioner was working as an Assistant Engineer inKaraikal and he had filed an Original Application in O.A. No. 258 of1999 before the Central Administrative Tribunal [for short, 'CAT'].Another person by name A. Veerasamy, who was similarly placed alsofiled another Original Application being O.A. No. 260 of 1998 beforethe same Tribunal. These two original Applications were dealtwith by the CAT and a common order dated 05.10.1999 was passeddismissing both the Original Applications. The two OriginalApplications were filed challenging the order dated 10.3.1998 whereinand by which the petitioner was reverted from the post of AssistantEngineer to that of Junior Engineer Grade I. 3.The CAT, in the earlier applications filed by twoindividuals being O.A. Nos. 557 of 1993 and 558 of 1993, by an orderdated 15.12.1994, directed the Government of Puducherry to convene areview DPC and consider the case of eligible Junior Engineers up tothree times of the number of vacancies for the years 1986, 1987 and1990. Pursuant to the said order, the Government passed G.O. Ms.No. 5, Industrial Development dated 10.3.1998 and granted promotionto two Junior Engineers to the post of Assistant Engineer on regularbasis. It is consequent upon the implementation of the said order,in the review DPC held on 24.4.1997, the names of petitioner andVeerasamy were not found in the list furnished. Thereafter, theywere given a show cause notice asking their explanation as to whythey should not be reverted. After considering the representations,the reversion orders came to be made.4.The CAT, after notice to parties, by its common order dated05.10.1999, held that only according to seniority, an officer cancome within the zone of consideration and in the case of theapplicants, they were not eligible for being considered. In fact,the petitioner's name was found in the seniority list as SerialNo.125 of the list relating to Junior Engineers and the last Diplomaholder, whose name was considered, was having Serial No. 63. It wasalso held that even if there was any expanded zone of consideration,the petitioner's name cannot be considered and that vacancies for allthe years cannot be pooled together and a single panel can beprepared. https://hcservices.ecourts.gov.in/hcservices/

5.As against the said order, the petitioner filed a writpetition being W.P. No. 16980 of 1999. This Court, by an order dated15.10.1999, dismissed the writ petition and finally held as follows:"However, in future as and when vacancy arises, theGovernment will consider the case of the petitioneraccording to law. In view of that we do not findany error or illegality in the order of the Tribunal soas to call for any interference."6.Thereafter, once again, the petitioner filed anotherOriginal Application being O.A. No. 1021 of 1999 along with the otherperson by name Veerasamy (applicant in O.A. No. 571 of 1998) andcontended that due to restructuring of the post of Junior Engineersas that of Junior Engineer Grade I and Junior Engineer Grade II,there is no common cadre of Junior Engineers and for persons who wereholding the post of Junior Engineers, the next higher grade is thatof Assistant Engineer. As per the Recruitment Rules, the promotioncan be made to the post of an Assistant Engineer by a Diploma holderhaving seven years regular service in the grade of Junior Engineerand by a Degree holder, with three years regular service in the cadreof JE can be considered. Therefore, when amendments were made inthe cadre of Junior Engineers, necessary amendments should have beenmade in the cadre of Assistant Engineers also. 7.It was further contended that the petitioner was originallypromoted in the reserved quota and when seven other persons underGeneral Categories were promoted, he was reverted. Though his O.A.No. 259 of 1999 was dismissed and confirmed by this Court in asubsequent writ petition, the present writ petition was filedchallenging the Recruitment Rules relating to the case of AssistantEngineers insofar as it does not provide for any change though forthe lower post of Junior Engineer, changes were made. In O.A. No.1021 of 1999, the promotion given to the private respondents 3 to 11was also challenged. 8.The CAT, by a common order dated 22.01.2001, dismissed boththe applications and held that the Recruitment Rules cannot be heldto be invalid and that the Department was following the senioritylist prepared in the year 1992. Further, it was held that thepetitioner's grievance, which was raised even in O.A. No. 259 of1999, was dismissed by the Tribunal and the same was confirmed by theHigh Court and consequent upon which, the petitioner was alsoreverted to the lower post. Therefore, he cannot once again, bringback the same cause of action in the guise of challenging theRecruitment Rules. In respect of O.A. No. 1021 of 1999, the CATheld that the same issue was dealt with in the earlier round oflitigation and the petitioner was not coming within the zone ofconsideration and, therefore, his case cannot be considered. https://hcservices.ecourts.gov.in/hcservices/

9.We do not consider that the petitioner had made out any caseexcept reiterating the very same contentions which were already dealtwith by this Court in the earlier round of litigation. It ishighly improper for the petitioner to have started a second round oflitigation especially when his earlier O.A. was dismissed andconfirmed by this Court and no new cause of action had arisen and hecannot argue all over again the same issue. 10.Amendments to the Recruitment Rules is a policy of theGovernment and the Rules framed under Article 309 of the Constitutionof India is legislative in character. The Court cannot issue amandate to the Government to make Service Rules under Article 309 ofthe Constitution of India. The Court also cannot direct or advisethe Executive in matters of policy or to sermonise regarding anymatter which, under the Constitution lies within the sphere oflegislature or executive. The Supreme Court in the matter relatingto Mallikarjuna Rao v. State of Andhra Pradesh [1990 (2) SCC 707],observed as follows:"The courts cannot usurp the functions assigned to theexecutive under the Constitution and cannot evenindirectly require the executive to exercise its rule-making power in any manner. The court cannot assumeto itself a supervisory power over the rule-makingpower of the executive under article 309 of theConstitution."11.Apart from the present proceedings initiated by thepetitioner which is hit by the principles of the res judicata, thepetitioner also has not made out any case to persuade us to give adirection to amend paragraph 11 of the Recruitment Rules relating toappointment in the post of Assistant Engineers.12.In the light of the above, both the writ petitions fail andaccordingly, stand dismissed. However, there will be no order as tocosts. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.gri https://hcservices.ecourts.gov.in/hcservices/ To1.Union of IndiaGovernment of PondicherryThrough the Secretary to Government for PowerChief SecretariatPondicherry2.Superintending EngineerElectricity DepartmentPondicherry3.The RegistrarCentral Administrative TribunalChennai Bench + 1 CC to the Senior Government Pleader cum Public Prosecutor forPondicherry, SR NO 16046 W. P. Nos. 29526 and 29527 of 2002ksk[co]gp/31.3.