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Judgment
P. Sathasivam, J.—Backward Classes and Most Backward Classes Welfare Department, Commercial Tax Department, and Inspector
General of Registration, aggrieved by Common Order dated 28-2-22005 passed by this Court in Writ Petition Nos. 11296 to 11298 of 2003
etc., batch have filed the above Review Applications under Order 47, Rule 1 and 2, of CPC read with Section 114 C.P.C. Since the issues and
contentions raised in all these matters are one and the same, they are being disposed of by the following common order.
Heard Mr. N.R. Chandran, learned Advocate General for the petitioners in all the Review Applications; Mr. K. Doraisami, learned Senior
Counsel for 1st Respondent in all Applications; Mr. P. Jayaraman, Senior counsel for 2nd Respondent i n R.A.No.65/2005; Mr. R.
Rangaramanujam for R-4 and R-6 in R.A.Nos. 65 and 67/2005 respectively; Mrs. G. Devi for R-5 in R.A.No.65/2005; Mr. V. Vijayashankar
for R-3 to 8 and R-10 to R-51 in R.A.No.66/2005; Mr. R. Saravanakumar for R-52, R-53 in R.A.No. 66/2005 and for R-7 and R-8 in
R.A.No. 67/2005; Mr. V. Ravikumar for R-54 and R-55 in R.A.No. 66/2005; and Mr. R. Yasholvaradhan for R1 to R-4 in R.A.No. 67/2005.
Tamil Nadu Backward Class Officials Association(applicant), aggrieved by a letter dated 06-10-97 of the Secretary to the Government,
Commercial Taxes and Hindu Religious Department, Chennai filed O.A.No.9044/1997 before the Tamil Nadu Administrative Tribunal. Apart
from the said Association, others have also filed similar applications questioning the letter of the Government dated 23-2-99 issued by the
Backward Classes and Most Backward Classes Welfare Department. Some of the Assistants working in the Registration Department have
challenged the panel prepared for appointment to the post of Sub Registrar Grade II and published in Government letters dated 3-12-97, 3-6-99
and 24-9-99. The grievance of the applicants before the Tribunal was that the Department has provided reservation while appointing Assistant
Commercial Tax Officers (""ACTOs"" in short) from among the Assistants. The Assistants belong to Ministerial Service and they have to be
appointed by transfer of service as ACTOs which is a Subordinate Service. The post of ACTO carries higher scale of pay with greater
responsibility. Therefore, it was contended that it is nothing but promotion so far as Assistants are concerned. It was their claim that the Assistants
who are juniors to some of the applicants have been promoted as ACTOs which is illegal and this has been made possible because the
Government has followed the reservation policy, while granting promotion to them. It was their further contention that such reservation in
promotion could not be provided in view of the direction of the Supreme Court in the Indira Sawhney and R.K. Sabarwal cases, where it has been
categorically held that no reservation can be provided in promotion. Some of the applicants who were working as Assistants in the Registration
Department have filed applications seeking to set aside Rule 5 of the Special Rules for Tamil Nadu Registration Subordinate Service and
proceedings dated 23-2-99 of the Secretary to Government, Backward Class and Most Backward Class Welfare Department. The said Rule 5
provides for reservation for Backward Class and Most Backward Class in recruitment by transfer and also by direct recruitment. The main
contention of the applicants was that reservation is not permissible in the matter of appointment to a higher post in respect of Backward Class and
Most Backward Class and that the Government is wrong in proceeding to make appointments to the post of Sub Registrar Grade II by adopting
the principle of reservation. It was also their claim that even though the appointment is by way of transfer of service, it actually amounts to
promotion and therefore, there can be no reservation in the case of promotions.
The respective Departments filed reply statements before the Tribunal highlighting their stand. After hearing all the parties, the Tribunal by the
common order dated 22-10-2002, quashed the panel dated 3-12-99, 3-6-99 and 24-9-99 on the ground that recruitment of transfer is nothing
but promotion, as such rule of reservation shall not be applicable.
Questioning the said common order of the Tribunal, Registration Department SC/ST and MBC Employees General Welfare Union, Chennai
and certain others filed Writ Petition Nos. 11296 to 11298/2003 and 28787/2004 before this Court. By common order dated 28-2-2005, this
Court after considering the relevant provisions, namely, Rule 2 (13) (14) and (15) of Tamil Nadu State and Subordinate Service Rules in regard to
promotion, direct recruitment and recruited by transfer, the judgement of the Supreme Court in Mandal Commission, Constitutional provision,
namely, Article 16(4) and 16(4)(a), after finding that recruitment by transfer in all cases in the same department is deemed to be promotion and for
which the rule of reservation does not apply, confirmed the conclusion arrived at by the Tribunal and dismissed all the writ petitions. Against the
said common order, the departments have filed Review Applications.
Mr. N.R. Chandran, learned Advocate General appearing for petitioners in the Review Applications, by pointing out that certain relevant
aspects particularly, the provisions of Tamil Nadu Backward Class, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational
Institutions and of Appointments or posts in the services under the State) Act, 1993 (Act 45 of 1994) have not been placed before this court,
would contend that the common order is to be reviewed. He also contended that the said Act enables the Government to reserve Backward
Class, Scheduled Castes and Scheduled Tribes not only in appointments, but also in posts in service. He further contended that in view of the
Constitutional protection that any action done by the Government reserving posts in the appointment and posts shall be deemed to be valid and this
aspect could have been considered; hence the decision requires re-consideration. Mr. K. Doraisami, learned senior counsel appearing for some of
the respondents in the review applications, supported the argument of the learned Advocate General. On the other hand, Mr. P. Jayaraman,
learned senior counsel appearing for some of the respondents, would contend that the Division Bench has considered all the aspects, including the
common issue of determining the meaning of promotion, recruitment by transfer and the land mark judgement of the Supreme Court in Indra
Sawhney etc. etc Vs. Union of India and others, etc. etc., and has correctly upheld the order of the Tribunal. He also contended that the State-
various departments having failed to challenge the order of the Tribunal by way of writ petition and accepted the verdict of the Tribunal and also
participated before the Division Bench, is estopped from filing review applications questioning the order of the Tribunal as well as the order of this
Court. He further contended that the aggrieved persons filed appeal against the judgement of the Division Bench dated 28-2-2005 and the
Supreme Court, after hearing the matter at length, dismissed their S.L.Ps. as withdrawn. In the light of these factual details, according to Mr. P.
Jayaraman, the review applications are not maintainable and liable to be dismissed. Messrs. R. Rangaramanujam, V. Vijayashankar, R. Sarava
nakumar, V. Ravikumar, R. Yasholdvaradhan, and Mrs. G. Devi, appearing for other respondents, reiterated the contentions raised by Mr. P.
Jayaraman, learned Senior counsel.
We have perused the relevant materials and considered the rival contentions.
It is not in dispute that once an order has been made, a review thereof must be subject to Rules and practice of the Court and cannot be lightly
entertained. Courts have held that a review of a judgment is a serious step and reluctant to resort to it is proper only where a glaring omission or
patent mistake or like grave error has crept in earlier judicial fallibility. As rightly pointed out, a mere repetition of the old and overruled arguments,
a second trip over ineffectually covered g rounds or minor mistakes of inconsequential import are obviously insufficient for exercising jurisdiction
under Review. The power of review may be exercised on the discovery of new and important matter and evidence which, after the exercise of due
diligence, was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made.
It may be exercised where some mistake or error apparent on the face of record is found. It is not in dispute that the power of review may not be
exercised on the ground that the decision is erroneous on merits. That would be the province of court of appeal. A party is not entitled to seek a
review of judgment delivered by a court for the purpose of rehearing and a fresh decision of the case. The normal principle is that a judgment
pronounced by the Court is final and departure from that principle is justified only when circumstances of substantial and compelling character
make it necessary to do so. It is also settled law that power of review can be exercised for correction of a mistake, but not substitute a view. The
review cannot be treated like an appeal in disguise. The error contemplated in the rule is an error apparent on the face of record and not an error,
which has to be fished out and searched. It must be an error of inadvertence. The words any other sufficient reason appearing in Order 47 Rule 1
CPC must mean a reason sufficient on grounds at least analogous to those specified in the rule. In the light of the above principles, let us consider
whether the petitioners have made out a case for reviewing the common order dated 28-2-2005.
At the foremost, it is relevant to mention that the petitioners/departments who were parties before the Tribunal did not challenge the order in
O.A.No. 3440/2000 dated 22-10-2002 and the order became final in so far as the petitioners are concerned. As rightly pointed out, when the
petitioners herein did not challenge the order of the Tribunal, they cannot now agitate the said issue in these petitions particularly, seeking review of
the order which was passed on merits.
Coming to the Ground A in the Review Application, it is brought to our notice that while filing O.A.No. 3440/2000 before the Tribunal, the
applicants also filed Misc. Application No. 3347/2000 to implead some of the persons who belong to the category of Most Backward Class as
respondents and who have been promoted by applying rule of reservation. The Tribunal also allowed the miscellaneous applications impleading
some of them in a representative capacity; hence it is incorrect to state that the Original Application was ordered without impleading the affected
persons who were included in the panel.
In the earlier order, the Division Bench considered the common issue determining the meaning of the expressions ""promotion"" and ""recruitment
by transfer"". Further, the principle of ""rule of reservation"" also was clarified with reference to the judgement in the Indra Sawhney''s case (supra).
In the said judgement, it has been specifically established that the cut off date is 16-11-1997 and it is further confirmed that after 16-11-97, the
rule of reservation does not apply to all the promotion matters. The Supreme Court has also clearly enumerated and enunciated that the Rule of
Reservation shall be applicable only at the time of ""initial appointment"" and not thereafter. In our earlier order, we clarified all the issues and passed
orders with reference to the guidelines issued by the Supreme Court.
With regard to ground ''D'' namely that the Division Bench has not considered Tamil Nadu Act 45/94, it is seen that the Act was enacted for
the purpose of ensuring the reservation over and above 50 per cent. This Act does not empower the State Government to provide reservation in
the matter of promotion. Article 16(4) of the Constitution of India enables the State Governments to provide reservation in the matter of
appointments. The decision of the Supreme Court in the case of The General Manager, Southern Railway Vs. Rangachari, , which held that the
post under Article 16(4) includes selection posts and as such reservation can be made not only in regard to appointment but also in regard to
selection posts which ma y be filled by promotion, thereafter was overruled and held no longer a good law by the Supreme Court in Mandal
Commission''s case. It was held in the Mandal Commission''s case that Article 16(4) which permits reservation in appointments or posts in favour
of Backward Class of citizens only at the initial stage of entry into State Services and does not permit reservation either to selection posts or in any
other manner in the process of promotion. Hence, Ground ''D'' in the Review Applications is untenable.
With regard to reference made to the Constitutional Bench decision in Post Graduate Institute of Medical Education and Research, Chandigarh
Vs. Faculty Association and Others, , the said decision has no application to this case. The Constitutional Bench of the Supreme Court has
decided only the Constitutional validity o f reservation in a single post wither directly or by rotation of roster and has not taken into account the
other contention raised in the matter. The Bench has held that there could be no reservation to a single post. The reservation of single post
exclusively for Backward Classes would mean cent percent reservation for Backward Class, which is not permitted in the Constitutional frame
work. The Bench has observed that the doctrine of equality of opportunity in Clause 1 of Article 16 is to be reconciled in favour of Backward
Class in such a manner that the latter while serving the cause of Backward Class shall not unreasonably encroach upon the field of equality. This is
not a decision rendered by the Supreme Court to provide reservation to Backward Class and Most Backward Class in the matter of promotion.
The reservation in the matter of promotion is being governed by the decision of the Nine Member Constitutional Bench of the Supreme Court in
Mandal Commission''s case.
In the earlier order, the Division Bench, only after detailed examination of the matter, has categorically decided that appointment by way of
recruitment by transfer is nothing but promotion. However, in the Indra Sawhney''s case, the Nine Member Constitutional Bench of the Supreme
Court has held that the reservation in appointment is permitted only at the entry into Government service by way of direct recruitment and does not
permit reservation either to selection posts or in any other manner in the process of promotion. The Division Bench in the earlier order has held that
reservation to Backward Class and Most Backward Class can be made only at the time of initial appointment by way of direct recruitment.
The rule of reservation followed in respect of Schedule Caste and Schedule Tribe candidates was not set aside by the Tribunal and there was
no error in the order of Tribunal as claimed by the learned Advocate General. The Division Bench also has upheld the reservation in promotion as
far as Scheduled Caste and Scheduled Tribe candidates are concerned. In other words, the Tribunal as well as this Court only cancelled the
reservation in promotion for Backward Class and Most Backward C lass candidates.
Under these circumstances, we are satisfied that the petitioners have not made out a ground for reviewing our earlier common order dated 28-
02-2005. Hence, all the Review Applications are dismissed as devoid of merits. No costs. Consequently, connected miscellaneous petitions are
closed.