(Prayer: Review Application filed under Order 47 Rule 1 and 2 of the Code of Civil Procedure read with Section 114 of CPC against the judgment dated 21.08.2019 made in WA.No.428 of 2018.)
M. Sathyanarayanan, J.
1. The writ petitioner is the Review Applicant herein.
2. The Review Applicant was successful before the Single Bench and on Appeal by respondents 1 to 3 in the writ petition, a Division Bench of this Court, vide impugned judgment dated 21.08.2019, in WA.No.428 of 2019, has set aside the order passed in the writ petition and thereby, allowed the writ appeal and dismissed the writ petition. The present Review Application is filed by the writ petitioner / 1st respondent in the writ appeal, to review the said impugned judgment.
3. The facts leading to filing of this Review Application have been narrated in detail and in extenso in the order dated 05.09.2017 in WP.No.8864 of 2012 and in the judgment dated 21.08.2019 in WA.No.428 of 2018 and for the sake of brevity, it is unnecessary to restate the entire facts except narrating the relevant facts for the disposal of this Review Application.
* The Review Applicant / writ petitioner was selected and appointed by way of direct recruitment by the 6th respondent and appointed as Assistant, Grade-1 on 06.01.1999 in the services of the 5th respondent. The 5th respondent, vide Office Memorandum dated 07.09.2010, has granted him financial upgradation with effect from 06.01.2009 in the Pay Band [PB] - 2 + Rs.4600/- as Grade Pay [GP] and indicated that the benefit of fixation is only upto 06.07.2010 since he resigned.
* The 3rd respondent had invited applications through Advertisement dated 26.10.2010 for filling up various posts and one such post was for Assistant Registrar [2 posts]. The Review Applicant submitted his application and vide communication dated 19.04.2011, the 3rd respondent has called him for an interview before the Selection Committee on 29.04.2011. The 4th respondent also issued a Service Certificate dated 26.04.2011, stating among other things that the Review Applicant is on lien from 5th respondent and working as Assistant Registrar with effect from 07.07.2010 in the PB of 15600-39100 with GP at Rs.5400/- and they have no objection in relieving the Review Applicant in case of his selection at the Indian Institute of Technology [IIT], Madras. The 3rd respondent, vide communication dated 05.05.2011, has informed about the selection of the Review Applicant to the post of Assistant Registrar and the Assistant Registrar [Admin] of IIT, Madras, has sent a communication dated 08.06.2011, allotting him Quarters.
* The Review Applicant, through 2nd respondent sent a communication to the 5th respondent dated 21.06.2011, requesting them to terminate his lien and transfer the leave salary and pension contribution to IIT, Madras, for the period of service rendered at the 5th respondent from 06.01.1998 to 06.07.2010 and also for the service rendered at IIT, Indore from 07.07.2010 to 18.05.2011.* The Review Applicant also informed the 5th respondent through the 2nd respondent as to joining of the post of Assistant Registrar in the services of IIT, Madras, with effect from 19.05.2011 and also indicated that he will be governed by CCS [Pension] Scheme of 1972 [Old Pension Scheme] and further made a request to terminate his lien with effect from 19.05.2011 and transfer the GPF accumulations and Full Pension Contribution to the 2nd respondent. IIT, Madras, vide proceedings dated 30.06.2011, as proposed to fix the pay of the Review Applicant / writ petitioner subject to the approval at Rs.15600 – 39100 + GP Rs.5400/- with effect from 19.05.2011 and the next date of increment was fixed on 01.07.2012.
* The 5th respondent, in response to the request made by the Review Applicant through proper channel, has sent a communication dated 22.12.2011, to the Dean [Admin], stating among other things that the request made by the Review Applicant cannot be accepted as he was relieved only to enable him to join IIT, Indore and not IIT, Madras.
* The 5th respondent also sent a Confidential communication to the Dean [Admin], IIT, Madras dated 07.09.2011, wherein, it has been stated among other things that his application for the post of Assistant Registrar at IIT, Madras, has been sent by him without informing the 5th respondent and the relievement from the services of the 4th respondent also violates the Rules and Procedure and in any event, the lien was granted only to join the services of the 4th respondent and not IIT, Madras and thereby, took a stand that his appointment in IIT, Madras, is unauthorised and not permissible by them as he has not applied through proper channel and that he also got relieved from the services of the 4th respondent during lien period without informing 5th respondent. It is further stated in the communication as to the pendency of the vigilance case against him and therefore, made a request to IIT, Madras, to direct the Review Applicant to report to the 5th respondent immediately and that, his appointment is to be terminated at IIT, Chennai with immediate effect, so as to enable him to report for duty in the services of the 5th respondent.
* The 3rd respondent herein, acting upon the said communication, has passed the Relieving Order dated 18.10.2011 and also passed yet another order on the same day, asking him to vacate the Quarters within seven days from 19.10.2011, i.e., on or before 26.10.2011.
* The Review Applicant / writ petitioner, challenging the Order of Relievement dated 18.10.2011. filed WP.No.24726 of 2011 and obtained interim orders. Subsequently, proceedings were withdrawn by the 3rd respondent and a Show Cause Notice dated 28.11.2011 was issued to him seeking clarification as to his prior experience. In the Show Cause Notice, it is stated among other things that considering large number of applications received and in order to restrict the number of candidates to be called for the interview to a reasonable number, Screening Committee of IIT, Madras, evolved shortlisting norms and call upon him to submit his explanation as to how he satisfy the shortlisting criteria of 8 years experience in the post of Superintendent or equivalent with GP of Rs.4600/- fixed by Screening Committee for the purpose of shortlisting candidates to the post of Assistant Registrar. The Review Applicant has also submitted his detailed explanation dated 22.12.2011 to the Show Cause Notice and also submitted a representation on 20.03.2012, praying for appropriate instructions/directions to the officials to allocate proper responsibilities which were since withdrawn from October 2011.
* The 3rd respondent, vide communication dated 29.03.2012, had informed the Review Applicant that as per the decision of the Board of Governors of IIT, Madras, in their 212th Meeting held on 23.03.2012, a Resolution has been passed to terminate the services of the applicant with immediate effect as per clause 3 of the Terms and Conditions of appointment mentioned in the offer of appointment dated 05.05.2011 read with Statute 13 of the IIT Statutes.* The Review Applicant / writ petitioner, challenging the Order of Relievement, has filed WP.No.8864 of 2012 and it was entertained.
* The 3rd respondent herein, has filed the counter affidavit and so also the 5th respondent.
* The learned Single Judge, after taking into consideration, the materials placed, has taken into consideration, the submissions made by the learned Senior counsel appearing on behalf of the respondents 1 to 3 in the writ petition that in the Advertisement Notification dated 26.10.2010, there is no Pay Band or Grade Pay and the learned Judge, further taken into consideration that as per the communication dated 10.09.2013 issued by the 6th respondent that the Assistant Grade-1 is classified as Group-B [Non Gazetted Post] and taking into consideration the Pay Band, found that the Review Applicant has established that he was holding the post which was classified as Group-B and the same is in nature of the supervisory capacity as per the Notification dated 26.10.2010 and the learned Single Judge also recorded the finding that the petitioner acted bona fidely and there was no mis-declaration on his part and after taking into consideration, the Memo dated 14.04.2009 issued by the Ministry of Personal, Public Grievances and Pensions [Department of Personnel and Training], Government of India, found that assertion made on their behalf as to the Review Applicant / writ petitioner coming to GP of Rs.4600/- with effect from 06.01.2009 lacks material. The learned Single Judge further found that the reasons for passing the impugned order, have not been disclosed. However, the reasons for passing the said order have been narrated in the counter affidavit filed by the 3rd respondent and further found that the order of termination is also punitive in nature and that the principles of natural justice have also been violated and therefore, allowed the writ petition and thereby, quashed the impugned order of relievement with a further direction, directing the 3rd respondent to continue the service of the Review Applicant / writ petitioner as Assistant Registrar with all attendant benefits, back wages and monetary benefits and it shall be done within the stipulated time frame.
* The respondents 1 to 3 herein as well as in the writ petition, aggrieved by the order dated 05.09.2017, in allowing the writ petition, filed WA.No.428 of 2018 and it was entertained.
* The Division Bench, after taking note of the grounds and arguments formulated three issues for consideration and noted that the bone of contention between the appellants in the writ appeal and the 1st respondent / writ petitioner is prescription of 8 years of experience in the post of Superintendent or equivalent with GP of Rs.4600/-.
* The Division Bench recorded the finding that the 1st respondent / writ petitioner did not have GP of Rs.4600/- eight years prior to his application and found that the 1st respondent / writ petitioner had put in a Supervisory post of Superintendent or equivalent together with a Grade Pay of Rs.4600/- only with effect from 01.01.2006.
* As regards the plea of the punitive nature of the Termination Order, the Division Bench found that as per clause 3 of the Terms and Conditions of the appointment, the 1st respondent / writ petitioner was only on probation and his services have not been regularised and further that the termination of the 1st respondent / writ petitioner was not on the basis of any adverse entries or on the basis of an assessment of his work and recorded the finding that the Order of Termination is simplicitor and not one of punitive and recording the said reasons, had allowed the writ appeal and thereby, setting aside the order passed in the writ petition and dismissed the writ petition.
* The present Review Application is filed to review the said judgment dated 21.08.2019 made in WA.No.428 of 2018.
4. The learned counsel appearing for the Review Applicant / 1st respondent in the writ appeal / writ petitioner made the following submissions.
* The 4th respondent, in the Service Certificate dated 26.04.2011, had stated that the Review Applicant is on lien from the services of the 5th respondent and they had no objection in relieving him in case of selection at IIT, Madras, and accordingly, his application for selection and appointment to the post of Assistant Registrar was done through proper channel and the 3rd respondent, vide communication dated 05.05.2011, has informed a to his selection to the post of Assistant Registrar and he has also joined the post.
* The Review Applicant / writ petitioner had rendered his services initially with the 5th respondent and thereafter, with the 4th respondent and after joining the post of Assistant Registrar in the services of IIT, Madras, made a request to the 5th respondent through proper channel, requesting the 5th respondent to terminate his lien and transfer the leave salary and pension contribution to IIT, Madras for the service rendered by him in the 5th respondent and the 4th respondent and also informed them that he will be governed by CCS [Pension] Scheme, 1972 – Old Pension Scheme as his appointment in the services of 5th respondent came into being prior to 01.01.2004. However, the 5th respondent has unjustly rejected the said request and also made false allegations as to his moral turpitude and in the light of the said communication, the 3rd respondent has passed the impugned Relieving Order on 18.10.2011 with yet another proceedings passed in the even date, asking him to vacate the Quarters.
* The primordial submission made by the learned counsel appearing for the Review Applicant / writ petitioner is that as per the Advertisement dated 26.10.2010 issued by the 3rd respondent, inviting applications to the post of Assistant Registrar, he fulfilled all the qualifications for the reason that he is in possession of LLM [Masters in Law] Degree with 67% marks and he served as Assistant Grade-1 / Executive Assistant from 06.01.1999 to 06.07.2010 which is classified as Group-B post as per the CCS [Classification of Posts], 1965, which is supervisory in nature for a period of 10 years and 6 months in the pay scale of Rs.5500-175-9000 with effect from 15.09.2006 and the anomaly in the pay scale was set right and the pay scale was upgraded to Rs.6500-200-10500 which translated into as normal replacement of Rs.9300-34800 with GP at Rs.4200/- and he was further granted Rs.9300-34800 [GP Rs.4600/-] under MACPS scheme on completion of 10 years of service in lieu of promotion with effect from 06.01.2009 and his services as Assistant Registrar at 4th respondent is analogous to Group ‘‘A’’ post.
* It is the further submission of the learned counsel for the Review Applicant / writ petitioner that under the guise of shortlisting, the Selection Committee had stipulated that 8 years of experience in the post of Superintendent or equivalent with GP Rs.4600/- and it amounts to change in the rule of selection during the middle of the game.
* The learned counsel also contended that a detailed response submitted by the Review Applicant / writ petitioner to the Show Cause Notice, have not been considered at all and the impugned order of Relievement is also cryptic in nature and the learned Single Judge, on an exhaustive consideration and analysis, has rightly reached the conclusion to allow the writ petition and the Division Bench, in the writ appeal, on misappreciation of evidence and on misconception of law, had erroneously allowed the writ appeal and prayed for interference.
5. Per contra, Mr.Karthik Rajan, learned Standing counsel appearing for respondents 2 and 3 has invited the attention of this Court to the counter affidavit filed on their behalf in the writ petition and would submit that the 3rd respondent also taken into consideration the Confidential communication sent by the 5th respondent dated 07.09.2011 in response to the representation submitted by the Review Applicant / writ petitioner through proper channel and assuming for the sake of argument that respondents 1 to 3 herein have not properly taken into consideration the contents of the reply/explanation submitted by the Review Applicant / writ petitioner to the Show Cause Notice, this Court ought to have remanded the matter and instead, straight away allowed the writ petition with a positive direction. It is further pointed out by the learned Standing counsel that the Division Bench, on an exhaustive analysis of the facts and legal position, has rightly allowed the writ appeal and the Review Applicant, under the garb of review application, is putting forth the same points once again for fresh adjudication and the same is impermissible in law and prays for dismissal of this Review Application with cost.
6. This Court paid its best attention to the rival submissions and also perused the materials placed before it.
7. Admittedly, the Review Applicant / writ petitioner was initially recruited and appointed as Assistant [Gen.] with effect from 06.01.1999 in the Pay Band of Rs.9300-34800 plus GP of Rs.4200/- and the Service Certificate dated 29.07.2009 issued to Review Applicant by the 5th respondent so as to enable him to apply for the post of Assistant Registrar in the National Institute of Rural Development, Hyderabad, would also disclose the same.
8. In the light of the said fact, it is relevant and useful to refer the counter affidavit filed on behalf of the respondents 5 and 6 in the writ petition.
* The Review Applicant / writ petitioner had applied for the post of Assistant Registrar in the services of the 4th respondent – IIT, Indore, through proper channel and was selected for the post of Assistant Registrar and also submitted his Technical Resignation dated 18.06.2010 for relieving him to enable him to join the services of the 4th respondent and further made a request to grant him permission to retain the lien on the post in the services of the 5th respondent for one year.
* The 5th respondent has relieved the Review Applicant on 06.07.2010 and based upon his further requests on 18.06.2010 and 30.08.2010, the competent authority granted him permission to have retention of lien for a period of one year vide communication dated 26.11.2010.
* The Review Applicant while he was holding one year lien in the services of the 5th respondent, had applied for the post of Assistant Registrar at IIT, Madras directly from the services of the 4th respondent, breaching all terms and conditions of lien and he was selected and joined as Assistant Registrar, in the services of IIT, Madras.
* The Counter Affidavit also deals with the alleged second marriage of the Review Applicant with Tmt.KKVSS Sreedevi, Assistant [Gen.] Grade-1, who is the spouse of the Review Applicant and other instances of moral turpitude against him and disciplinary proceedings was also initiated against the Review Applicant / writ petitioner as he was a party being the spouse of Tmt.Sreedevi.
* In paragraph No.3[j] of the Counter Affidavit, the information sought for by IIT, Madras, had also been answered, wherein, the 5th respondent took a stand that the Review Applicant was granted first Financial Upgradation under MACP Scheme in the Pay Ban of Rs.9300-34800 + GP of Rs.4600/- with effect from 06.01.2009 and that, he did not hold any supervisory post during his entire service and though he was granted retention of lien for a period of one year in the services of 4th respondent, failed to report back to his Parent Department and straight away, submitted application for selection to the post of Assistant Registrar of IIT, Madras and the Review Applicant / writ petitioner either shold have returned to the Parent Organization or tendered his resignation and he has failed to do so.
9. In the light of the details available in the counter affidavit of the respondents 5 and 6, the following facts emerge.
10. The Review Applicant was selected as Assistant [Gen] with effect from 06.01.1999. He was on lien from the services of the 5th respondent to the services of the 4th respondent and was working as the Assistant Registrar with effect from 07.07.2010 in the Pay Band of Rs.15300-39100 withGP at Rs.5400/- and the Service Certificate to that effect was also issued by the 4th respondent dated 26.04.2011, expressing their inclination to relieve him in the event of his selection at IIT, Madras.
11. Therefore, it is clear that the Review Applicant / writ petitioner had worked as Assistant [Gen.] in the services of the 5th respondent between 06.01.1999 and 06.07.2010 and thus, put in 11 years and odd of service as Assistant [Gen.].
12. The Review Applicant appears to have submitted the application to IIT, Madras for the post of Assistant Registrar through the 4th respondent despite the fact that he was on lien and did not obtain No Objection Certificate from the 5th respondent who was his original employer.
13. In the light of the stand taken by the 5th respondent in paragraphs No.3[a] and 3[j] of the counter affidavit, the Review Applicant / writ petitioner did not have total of 8 years of relevant administrative experience stipulated in the Advertisement dated 26.10.2010 issued by the 3rd respondent for the post of Assistant Registrar. The 4th respondent did not file their counter affidavit in the writ petition.
14. The Review Applicant in response to the Show Cause Notice, had sent a detailed response/explanation dated 22.12.2011 and even as per his own admission, he was holding an equivalent/analogous post on absorption basis in the services of the 4th respondent from 07.07.2010 to 18.05.2011 on lien and during May 2011, he was selected to the post of the Assistant Registrar and therefore, he held the post in the supervisory cadre, for less than 8 years.
15. Now, coming to the norms for shortlisting, it is the submission of the learned counsel for the Review Applicant that it is contrary to the essential qualifications prescribed in the Advertisement of the 3rd respondent dated 26.10.2010.R respondents 1 to 3, in the counter affidavit to the writ petition, in paragraph No.4 had stated that in pursuant to the said Advertisement, 155 applications have been received and in order to restrict the number of candidates to interview to a reasonable number, a Screening Committee of the Institute had evolved the shortlisting criteria/norms and it is relevant to extract the same:-
* Eight years experience in the post of Superintendent or equivalent with GP of Rs.4600/-.
* Experience gained after the qualifying degree only will be considered.
* Minimum requirements of qualifications and/or experience can be relaxed in respect of exceptionally outstanding candidates.
* PG Degrees obtained through Open Universities are not considered.* In the case of internal candidates the following relaxations in the norms are recommended:-
* A pass in PG Degree/
* Relaxation in age limit of 55 years.
16. As per the instructions/information to the candidates appended along with the said Advertisement, in clause 12, it is stated that the Institute reserves right to restrict number of candidates to the interview to a reasonable limit on the basis of qualifications and experience higher than the minimum prescribed in the Advertisement and other academic achievements and the selection was done on the basis of the interview.
17. In 1994  SCC 293 [Madhya Pradesh Public Service Commission Vs Navnit Kumar Potdar and Another], shortlisting of candidates to be called for interview in respect of selection based solely on viva voce test came up for consideration before the Hon’ble Supreme Court of India and it is relevant to extract paragraph No.6 of the said decision, which reads thus:-
‘‘6. The question which is to be answered is as to whether in the process of short-listing, the Commission has altered or substituted the criteria or the eligibility of a candidate to be considered for being appointed against the post of Presiding Officer, Labour Court. It may be mentioned at the outset that whenever applications are invited for recruitment to the different posts, certain basic qualifications and criteria are fixed and the applicants must possess those basic qualifications and criteria before their applications can be entertained for consideration. The Selection Board or the Commission has to decide as to what procedure is to be followed for selecting the best candidates from amongst the applicants. In most of the services, screening tests or written tests have been introduced to limit the number of candidates who have to be called for interview. Such screening tests or written tests have been provided in the concerned statutes or prospectus which govern the selection of the candidates. But where the selection is to be made only on basis of interview, the Commission or the Selection Board can adopt any rational procedure to fix the number of candidates who should be called for interview. It has been impressed by the courts from time to time that where selections are to be made only on the basis of interview, then such interviews/viva voce tests must be carried out in a thorough and scientific manner in order to arrive at a fair and satisfactory evaluation of the personality of the candidate.’’
18. The Apex Court, in the said decision, had also taken into consideration the Theory and Practic
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e of Modern Government authored by Herman Finer as well as Kothari’s Committee Report on ‘‘Recruitment Policy and Selection Methods for Civil Servants Examinations’’ and found that prescription of norms for shortlisting by Madhya Pradesh Public Service Commission is sustainable and accordingly, reversed the order of the High Court of Madhya Pradesh and allowed the appeal. 19. In the light of Clause No.9 of the instructions/information to the candidates appended to the Advertisement of IIT, Madras, dated 26.10.2010 as well as the ratio laid down by the Apex Court in the above cited decision, the norms for shortlisting adopted by the 3rd respondent cannot be faulted with. 20. Now, coming to the qualification as to holding of 8 years of relevant administrative experience in supervisory capacity in a Government office etc., the learned Single Judge has found that the Pay Band of Rs.9300-34800 will be classified as Group ‘‘B’’ post and the same is in the nature of supervisory capacity as per the Notification dated 26.10.2010. 21. In the considered opinion of the Court, the 5th respondent who was the original employer of the Review Applicant is the best person to speak about the experience of the Review Applicant in the supervisory capacity and in paragraphs No.3[j] of the counter, took a specific stand that during his entire service, the Review Applicant did not hold any supervisory post. The Review Applicant was in the services of the 4th respondent from 07.07.2010 and after his selection in the services of IIT, Madras, joined as Assistant Registrar, on 19.05.2011 and therefore, he did not fulfilled the criteria of 8 years of experience in the supervisory capacity. 22. Now, coming to the issue relating to the stigmatic termination pleaded by the Review Applicant, this Court is of the considered view that it is only an order of termination simplicitor and in the impugned judgment, this issue has been exhaustively considered and a conclusion has been rightly reached that the order of termination without allegation, is purely a terminated simplicitor and not one of punitive. Learned counsel for the Review Applicant, under the guise of arguing the review application, had once again argued the writ appeal and it is a well settled position of law that the review is not an appeal in disguise and this Court, on an independent application of mind to the entire materials, is of the considered view that there is no apparent error or mistake of law in the reasons assigned by the Division Bench in allowing the writ appeal and finds no merit in the review application. 23. In the result, the Review Application stands dismissed. However, in the circumstances, there shall be no order as to costs.