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Judgment
P.K. Misra, J.—This application has been filed for reviewing the judgment dated 31.7.2008 in Review Application. No. 73 of 2006.
In order to appreciate the contentions raised, it is necessary to notice in some detail the relevant facts and circumstances including the history of
litigations in different courts.
The petitioner was appointed as Grade II Constable in Chennai City Range as per Proceedings dated 21.2.1986 and in course of time he was
promoted as Grade I Constable as per Proceedings dated 10.11.1997. While in service, he acquired Bachelor Degree in History in the year 1996.
While the matter stood thus, Tamil Nadu Uniform Service Recruitment Board invited applications for recruitment to the post of Sub Inspector for
the year 1997-1998. Third respondent also subsequently issued Memorandum in Rc.No.125798/RECT-1/98 dated 18.6.98 indicating that
Graduate Head Constables and Constables under 20% quota are to be selected. It is not in dispute that as per the Rules of recruitment, candidates
are to undergo physical efficiency test, written test and oral interview and if a candidate does not satisfy the required physical measurements, he
would not be eligible for the next test. Similarly if a candidate fails to secure the minimum marks in physical efficiency test, he would not be allowed
to sit for the written test. The petitioner who was apparently not selected, filed O.A. No. 51 of 2003 for the following reliefs:
To call for the 1997-1998 recruitment files and records for the post of Sub-Inspector of Police to the departmental Head Constables and
Constables under 20% quota and also to the 80% direct recruitment and quash the entire recruitment process as void for non disclosure of total
vacancies including the backlog vacancies for SC/ST and for adopting range selection and to pass appropriate orders for conduction of review
physical efficiency test and consequential written and oral tests in 80% quota for considering the claims of the applicant for the post of Sub-
Inspector of Police.
In such Original Application, a reply was filed on behalf of the respondents, wherein it was stated inter alia that the applicant had participated in
the events of Physical Measurement Test, Physical Efficiency Test and ""he had completed the running event in 15 sec. Only. But the prescribed
duration time is 15.00 sec. Hence, he was not selected.
While the Original Application was pending before the Tribunal, the State Administrative Tribunal (in short ""Tribunal"") was abolished. Some of
the matters, which had been decided by the Tribunal earlier, came to be challenged in the High Court by the State Government and ultimately a
batch of writ petitions was disposed of by a Division Bench consisting one of us, namely, P.K. Misra, J. The High Court modified the order passed
by the Tribunal by observing as follows:
In such circumstances, we pass the following order:
i) The Selection of both of Sub-Inspectors of Police (Men and Women) pursuant to the selection made for the vacancies notified for the year
1997-98 by resorting to zone-wise selection was invalid inasmuch as such zone-wise selection was impermissible under Special Rules governed
for Tamil Nadu Police Sub-ordinate Service.
ii) Having regard to the fact that such selection and appointment came to be made as early as far back as in the year 1999, at this distant point of
time, applying the ratio of the Hon''ble Supreme Court referred to in earlier paragraphs (i.e. para 61 to 64), we are not inclined to set aside the
said selection.
iii) Even as regards the 53 candidates with reference to whom the Directorate of Vigilance and Anti-corruption has submitted its final report
holding that their selection was tainted with mal-practices, we hold that while their appointments cannot be set aside at the present juncture, their
continuation in service will depend upon the final outcome of the criminal proceedings pursuant to the final report dated 18.6.2004.
iv)The concerned 53 persons should be informed about our orders relating to them by a specific notice to be issued to them.
v) While modifying the order of the Tribunal, we hold that from amongst the applicants who are the contesting respondents both Men and Women
covered by W.P. Nos. 17639 to 17660 of 2001, 17822 to 17827, 17830, 17899 to 17903 and 18349 to 18356 of 2003, such of those
contesting respondents who have secured the lowest cut off marks in the category, namely, OC, BC, MBC, SC and ST after the interview, should
be directed to undergo medical test and after following the usual formality of police verification about their antecedents, and in the event of those
contesting respondents ultimately, coming out successful, should be placed on probation and sent for police training which should be followed by
their appointment and regularization as per the prescribed regulations.
vi) Such of the contesting respondents who were not called for interview, shall be called for interview and after coming out successful in the
interview, if their cut off marks is more than the last cut off marks in the respective category, they shall be directed to undergo medical test and
after following the usual formality of police verification about their antecedents, and in the event of those contesting respondents ultimately, coming
out successful, should be placed on probation and sent for police training which should be followed by their appointment and regularization as per
the prescribed regulations.
vii) The above said direction will also hold good in respect of the applicants who have filed O.A. Nos. 10211 and 10324 of 1998, 1354, 4693
and 6796 of 1999, 955, 4212, 5668, 5669, 5671, 6659 and 8616 of 2000, 2557, 6301 and 6746 of 2001, 1920, 2189, 2286, 2424, 3073,
3633, 3745, 3751, 3999, 4194, 5001, 5142, 5518, 5546, 5687, 5688, 6412, 6429, 6458 and 6459 of 2002 and 18, 19, 129, 330, 388, 389,
796, 2130 of 2003.
viii) The other Original Applications, namely, O.A. Nos. 2579, 2715, 3864, 3929, 3930, 4084 of 2003 and 26, 78, 207, 1625 and 1626 of 2004
as well as W.P. Nos. 32253, 32255, 32499, 33155, 33136, 22344, 22015, 23063 and 34275 of 2004 are dismissed on the ground of delay and
laches.
ix) The Petitioners-State Government are directed to take steps against the concerned officers in accordance with the Tamil Nadu Pension Rules,
based on the outcome of the criminal proceedings.
x) We direct the petitioners to follow the above said directions and complete the above said exercise and issue appropriate orders as regards the
final outcome within four weeks from the date of receipt of copy of this order.
The petitioner, who had filed O.A. No. 51 of 2003, which had remained undisposed of in the Tribunal, filed W.P. No. 9680 of 2005 for issuing
a writ of Mandamus directing the respondents to consider and select the petitioner for the post of Sub Inspector as per the direction given by the
Division Bench in the aforesaid judgment dated 25.2.2005 in W.P. Nos. 17639 to 17660 of 2001 etc., batch. While the matter stood thus, on
abolition of the State Administrative Tribunal, all the Original Applications, which are pending before the Tribunal, stood transferred to the High
Court and have been renumbered as Writ Petitions. In the aforesaid process, O.A. No. 51 of 2003 filed by the petitioner got transferred to the
High Court and renumbered as W.P. No. 36003 of 2005. Ultimately, WP.No.9680 of 2005 and 36003 of 2005 and two other similar matters
filed by another candidate i.e., W.P. Nos. 9681 of 2005 and 36002 of 2005, were taken up together for disposal by a Division Bench. By a
common judgment dated 10.11.2005, the Division Bench by extracting para 73 of the earlier judgment dated 25.2.2005, disposed of all the writ
petitions by observing as follows :-
...It is brought to our notice that among the above directions, direction No. (vi) is applicable to both the petitioners. There is no serious dispute
with regard to the same. In such circumstances, Writ Petition Nos. 36002 and 36003 of 2005 are ordered on the above terms. No costs.
In view of the order passed in W.P. Nos. 36002 and 36003 of 2005, no further order is required in W.P. Nos. 9680 and 9681 of 2005; hence,
the same are dismissed.
Thereafter, the present Respondents filed Review Application No. 73 of 2006 against the order of the Division Bench pertaining to W.P. No.
36003 of 2005. The main contention which was raised by the present respondents was to the effect that the writ petitioner, who had not qualified
in the physical efficiency test and consequently could not have appeared in the written test, cannot be called for interview. It was specifically
pointed out that the person who does not qualify in the physical efficiency test is not eligible for appearing at the subsequent stage, namely, in the
written test.
The Review Application No. 73 of 2006 filed by the present Respondents 1 to 3 was allowed by a Division Bench consisting one of us (P.K.
Misra, J.) by judgment dated 31.7.2008. In such judgment it was specifically observed by referring to the documents produced by the State
Government that the present petitioner had completed 100 metres running in 15.91 seconds, whereas as per the norms prescribed he was required
to complete 100 metres running within 15.00 seconds and, therefore, he was not eligible to appear at the written test. It was further observed that
since the petitioner had not appeared in the written test, the question of calling him for the interview did not arise and, at any rate, by being
interviewed, things could not have improved for the petitioner.
The present petitioner filed Special Leave to appeal (Civil) No. 26669 of 2008 against the aforesaid Division Bench order and such Application
was dismissed by the Hon''ble Supreme Court at the stage of admission. Thereafter, the present Review Application has been filed by the
petitioner.
Since the earlier judgment of this Court in Review Application No. 73 of 2006 was the subject matter of SLP and Leave was refused, the
Registry had raised certain doubts regarding maintainability of the present Review Application.
Learned Senior Counsel for the present Review Applicant has placed reliance upon the decision of the Supreme Court reported in Kunhayammed
and Others Vs. State of Kerala and Another, . In the said matter against the decision of the High Court, a SLP was filed by the State of Kerala
under Article 136 of the Constitution, but the Supreme Court by a non-speaking order, dismissed such Special Leave Petition. Thereafter, the
State of Kerala had filed a Review Application before the very same Kerala High Court and the Review Application was allowed. Against such
judgment of the Kerala High Court reviewing its earlier order, appeal was filed before the Supreme Court. The Supreme Court, after referring to
several earlier decisions, summed up its conclusions in the following words:
To sum up, our conclusions are:
(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such
superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the
superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special
leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the SLP is converted into an appeal.
(iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the
superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The
superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the
Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not
while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to
the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of
merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the
Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications.
Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the
Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which
would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the
Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has
stood merged in the order of the Supreme Court rejecting the SLP or that the order of the Supreme Court is the only order binding as res judicata
in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract
the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the
jurisdiction of High Court to entertain a review petition is lost thereafter as provided by Sub-rule (1) of Rule 1 of Order 47 CPC.
Ultimately, the Supreme Court dismissed the appeal filed by the unsuccessful party in the Review Application by observing that the order
dismissing the application for Special Leave being a non-speaking and unreasoned order, the Review Application before the Kerala High Court
was maintainable.
In the Review Application, the main contention which has been highlighted is to the effect that in the reply filed by the State Government in
O.A. No. 51 of 2003, it had been merely indicated that the applicant had secured 15. seconds and, therefore, the judgment of the High Court
should not have been reviewed on the basis that the petitioner had completed 100 metres running within 15.91 seconds.
Even though the Review Application had not been admitted, we have called upon the Addl. Advocate General, who had appeared in the
earlier Review Application, to make his submission. Learned Addl. Advocate General has made his submissions on the basis of the documents
which are available with him and which have been subsequently produced before us.
Learned Senior Counsel appearing for the petitioner has also produced an additional typed set of papers containing certain correspondence in
support of his contention that in fact the petitioner had appeared at the written examination and, therefore, the judgment in the Review Application
filed by the State Government was required to be reviewed.
Mr. Chelliah, learned Senior Counsel for the petitioner, has highlighted the stand taken by the present Respondents in the Original Application
and contended that it was never indicated in such counter that the petitioner completed 100 metres running in 15.91 seconds, but, on the other
hand, it was indicated as if he had completed 100 metres running in 15 seconds. It is therefore contended by him that the conclusion of the Court,
while allowing the earlier Review Application No. 73 of 2006, that the petitioner had not completed 100 metres running within 15.00 seconds is
not correct and, therefore, such judgment should be reviewed. It has been further submitted by him in course of hearing by producing additional
documents that as per the letter issued by the Police Department, the petitioner himself had appeared in the written test and had not been called for
the interview as he had not secured the required marks. It is therefore submitted by him that the stand of the Government that the petitioner had
flunked in the physical efficiency test and had not appeared in the written test was untenable.
It is of course true that the reply affidavit filed by the State Government before the State Administrative Tribunal was somewhat slipshod and it
had not been specifically indicated that the petitioner had completed 100 metres running in 15.91 seconds. The said paragraph is extracted
hereunder:
With reference to the para 6 (14) of the Original Application the applicant (Code No. 410065) had challenged, the recruitment only after the
selection process is completed, viz. the applicant herein has participated in the events of Physical Measurement Test, Physical Efficiency Test and
he had completed the running event in 15.sec. only. But the prescribed duration time is 15.00 sec. Hence, he was not selected.
(Emphasis added)
Even though it had not been specifically stated that the petitioner had completed 100 metres running in 15.91 seconds, a fair reading of the
reply makes it clear that it was the specific stand of the State Government that the petitioner had not been qualified in the physical efficiency test. In
the judgment under review, it had been specifically indicated that the papers relating to physical efficiency test had been perused. As a matter of
fact, in Review Application No. 73 of 2006 filed by the Government, it had been specifically asserted that the writ petitioner had completed 100
metres running in 15.91 seconds and, therefore, he was not selected to sit in the written test. Those documents, which are on record, clearly
indicate that the petitioner has secured 15 marks in Rope Climbing equivalent to 3 Stars and 5 marks in High Jump equivalent to One Star. So far
as 100 metres running is concerned, the relevant entry clearly indicates that the petitioner had completed 100 metres running in 15.91 seconds and
at the relevant place it had been clearly indicated that he was not qualified and no marks have been awarded.
It is not in dispute that, as per the norms fixed, a person completing 100 metres running within 15.00 seconds is to get 5 marks equivalent to
One Star and the person completing such race within 13.5 seconds is to be awarded 10 marks equivalent to Two Stars and the person completing
such race within 12.5 seconds is entitled to get 15 marks equivalent to Three Stars. The relevant columns indicate that no Star had been awarded
to the petitioner as he was not even able to secure the required 5 marks. It is not in dispute that unless a person secures 5 marks in each of the
three events, he would not be considered as eligible. In this context, it is now necessary to refer to the averments made by the petitioner himself in
his Original Application.
The applicant in the Original Application had specifically stated as follows:
In the 20% quota, the applicant has participated in the physical efficiency test of rope climbing, long jump and 100 meter running. But he was
informed by impugned communication dated 16.7.98 that he has not qualified in the 100 meter running. Not reconciled with the said situation, the
applicant was waiting in the ground. Then the applicant learnt that due to some mistakes in timing clocks, number of candidates like the applicant
were not selected in the running event alone. At the point of time the applicant and others were told that after checking and completing the schedule
of physical efficiency test the applicant and similarly placed persons will be called for the said mistaken event. The applicant in good faith waited.
The applicant is continuously maintaining his robust health even today and he is willing to undergo the physical efficiency test to prove his
success. In the above background of the robust health and consistency, the applicant ought not to have been denied the success in the physical
efficiency test on 16.7.98.
(Emphasis added)
Similarly in the prayer portion in the Original Application, the petitioner had prayed that appropriate orders should be passed for conducting
review physical efficiency test and consequential written and oral tests.
A reading of the averments in the Original Application clearly indicates that the grievance of the petitioner at that stage was the physical
efficiency test was not held properly and there was some defect in the clock and the prayer was also for the said purpose. As a matter of fact, the
petitioner himself had enclosed Disqualification memo, dated 16.7.1998. Admittedly, the physical efficiency test in respect of 20% quota had been
held on 16.7.1998. Contemporaneous documents produced clearly indicate that the petitioner had completed 100 metres running in 15.91
seconds, which is beyond the stipulated standard, and in addition to this the Disqualification memo dated 16.7.1998, which was filed by the
petitioner/applicant himself, clearly indicates that the petitioner had been disqualified for selection as Sub Inspector of Police for not fulfilling the
physical efficiency test norms.
In addition to the above, as we have already noticed, the petitioner had filed subsequently W.P. No. 9680 of 2005. In such writ petition,
which was filed in the year 2005, the petitioner himself had stated in paragraph 5 that he had attended the physical efficiency test on 16.7.98 after
qualifying in the Physical measurement test...."" However I was informed orally that I have not completed the 100 meter running in 15 seconds for
obtaining even 1 star"". In such writ petition in paragraph 4, it was indicated that the petitioner was willing to undergo the physical efficiency test. In
such writ petition filed by the petitioner himself, there is no whisper that the petitioner had in fact qualified in the 100 metres running within 15
seconds and thereafter he appeared in the written test.
It is no doubt true that the reply affidavit of the State Government in O.A. No. 51 of 2003, possibly could have been more precise and clear.
It is apparent that there was a typographical mistake at that stage as in the reply affidavit it had been indicated that the petitioner had completed
100 metres running in 15 sec. But, in the next sentence it is clearly indicated that ""But the prescribed duration time is 15.00 sec."", which clearly
indicates that the specific stand of the Government was that the petitioner had not completed 100 metres running within 15.00 seconds. The
petitioner himself had prayed for an opportunity for physical efficiency test once more. The documents produced by the petitioner himself clearly
that he had been intimated that he had not reached the norms in 100 metres running.
If the present application for Review is to be considered strictly on the basis of the materials which were analysed hitherto and within the
narrow confines of jurisdiction of Review, in normal course, it would be very difficult to come to any different conclusion. However, in course of
hearing of the Review Application, learned Senior Counsel for the petitioner has produced an Additional typed set of papers where there is
reference to the representation made by the petitioner, wherein it is stated by the petitioner that he had appeared in the written examination, but
was not called for the interview. Reply letter from the Police Department is also enclosed in such typed set of papers, which indicates that the
petitioner had not secured the required cut-off marks in the written test and, therefore, he was not selected. Such documents were never brought
on record before the Tribunal while the Original Application was pending nor there was any reference to such documents in W.P. No. 9680 of
2005, filed by the petitioner himself in the year 2005.
However, the learned Senior Counsel now appearing for the petitioner has contended with much persistence that the present petitioner should
not be allowed to suffer on account of some inartistic drafting of the Original Application and the earlier Writ Petition and ultimately justice should
be done to the petitioner on the basis of truth and justice should not be denied because of some technical hurdles. Because of such persistent
contention made by the learned Senior Counsel, learned Additional Advocate General was called upon to find out the factual position. The learned
Additional Advocate General, after going through the materials on record, has fairly submitted that in fact the petitioner had appeared in the written
examination and has submitted that the stand earlier highlighted by the State Government in Review Application No. 73 of 2006 was on account of
the fact that the petitioner had also appeared in the physical efficiency test meant for in-service candidates coming with 20% quota and, at that
stage, the Department had not focussed upon the fact that the present petitioner in addition to competing for 20% quota as an in-service candidate
had also competed in the open category in respect of balance 80% of the vacancies. Learned Addl. Advocate General has therefore fairly
submitted that as a matter of fact the petitioner had also appeared in the physical efficiency test held on 13.7.1998, which was a physical efficiency
test for the candidates appearing in the open category, and in such physical efficiency test he had qualified and consequently was allowed to appear
at the written test, which was held on 19.7.1998. Since the petitioner had competed from Chennai Zone and had not obtained the required cut-off
mark as compared to the candidates appearing from such Chennai Zone, he had not been called for the interview. Learned Addl. Advocate
General has, therefore, submited that since the cut-off marks in respect of Scheduled Caste candidate in respect of other Zones was lower than the
cut-off mark obtained by the present petitioner, by applying para 73(vi) of the judgment dated 25.2.2005, he can be called for the interview.
In view of such fair concession made by the learned Addl. Advocate General, we are inclined to allow the present Review Application No. 48
of 2009 thereby reviewing our earlier judgment in Rev. Appln. No. 73 of 2006 and restore the earlier judgment of the Division Bench in W.P. No.
36003 of 2005. In order to avoid any confusion in the matter, we hereby issue a direction that the present petitioner shall be called for the
interview and if, after taking into account the marks earlier obtained and the marks in such interview, the total marks would be more than the
lowest cut-off mark in respect of a selected candidate in Schedule Caste category, he shall be permitted to undergo medical test and after
undergoing other formalities, if any, should be appointed in the post of Sub-Inspector. This exercise should be completed as expeditiously as
possible, preferably within a period of 30 days from the date of receipt of a copy of the present order. The Review Petition is accordingly allowed
to the extent indicated above.
We place on record our appreciation for the perseverance shown by the learned Senior Counsel for the petitioner and the fair submission
made by the learned Additional Advocate General.