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Judgment
Both the review applications have been filed to review the order and direction issued in writ appeal No. 1382 of 2013, dated 15.7.2013.
The applicant in review petition No. 221 of 2013 is the writ appellant/writ petitioner and the applicant in review application No. 146 of 2014 is the second respondent in both the writ appeal as well as the writ petition.
The writ petition was filed by the applicant V. Murugan praying for issuance of Writ of Certiorarified Mandamus to quash the order passed by the District Collector, Kancheepuram District dated 24.7.2012 and the proceedings of the President of the Kovilambakkam Panchayat dated 17.8.2012 and to direct the respondents to allow the petitioner to continue in the post of Panchayat Secretary.
The case of the writ petitioner is that he was appointed as Assistant on regular basis by order dated 17.5.2010 and was continuing to function in the said post. While so, a complaint was received alleging that the petitioner was appointed without required educational qualification and he does not satisfy the age criteria. The complaint was forwarded by the District Collector to the Block Development Officer (Applicant in Review Application No. 146 of 2014). Pursuant thereto, a show cause notice was issued to the writ petitioner by the President of the Panchayat stating that the petitioner was aged 38 years while the Government had fixed the upper age limit as 33 years for B.C. Candidates. The writ petitioner was directed to show cause as to why he should not be terminated from service. The petitioner has submitted his explanation dated 01.8.2012. Thereafter, the President of the Panchayat passed the order dated 17.8.2012 terminating the services of the petitioner from the post of Assistant and he was directed to work as a Bill Collector, the post in which he was worked earlier.
The petitioner has filed the writ petition challenging the order dated 17.8.2012. The Panchayat filed a counter affidavit seeking to sustain the impugned order of termination. The learned single Judge, held that it is not in dispute that the petitioner was appointed as O.A. in the year 1995 and was working on daily wages and he was not given scale of pay. While so, he was appointed as assistant on 17.5.2010. Though the order was issued by the President of the Panchayat, it was not supported by the proper resolution of the panchayat. After taking into consideration, the relevant Rule, it was held that the Rule does not permit filling up the post of assistant by way of promotion from the post of O.A. and it contemplates appointment by direct recruitment. Further, it was observed that the post may be filled up only by way of calling for list of names from the employment exchange and the President of the Panchayat has not followed the said procedure and therefore, it was held that the action of the Panchayat reverting the petitioner to the post of O.A./Bill Collector cannot be faulted. The learned single Judge took note of the resolution passed by the Panchayat in Resolution No. 95, dated 16.11.2012, wherein, the Panchayat resolved to grant scale of pay to the petitioner in the post of O.A., in which he was working with further direction to submit the resolution to the District Collector for approval and appropriate orders. Since the resolution has been passed by the Panchayat, the writ petition was disposed of by directing the president of the Panchayat to forward the resolution relating to the proposal for regularising the services of the petitioner as O.A. in the time scale of pay to the District Collector within a period of two weeks from the date of receipt of a copy of that order and the District Collector was also directed to pass orders regularising the service of the petitioner as O.A. taking into account the 15 years of service rendered by him as Assistant. The writ petitioner has preferred writ appeal as against the order passed in the writ petition stating that he is entitled to be regularised in the past of Panchayat Secretary. The Division Bench heard the matter and by order dated 15.7.2013 disposed of the writ appeal holding that no grounds had been made out by the appellant to interfere with the direction issued by the learned single Judge.
The writ petitioner has filed the review petition contending that the Division Bench ought to have considered that the writ petitioner was appointed as Panchayat Secretary by promotion and as such, the requirement of notifying the vacancy to the employment exchange does not arise. Further, the writ petitioner would contend that the Division Bench ought not to have rendered specific finding on the issue that the District Collector is not inclined to approve the resolution No. 95 for the reason that there is no sanction post of O.A. in the Village Panchayat. The Block Development Officer, who has been impleaded as second respondent in the writ petition has filed the review application No. 146 of 2014 reiterating the contentions that the writ petitioner was over aged at the time of passing the resolution No. 95, dated 16.11.2012 and that the Division Bench did not consider that the writ petitioner had not obeyed the order given by the President of the Panchayat in his proceedings dated 17.8.2012 ordering to again join duty as O.A./ Bill Collector on daily wages basis on market rate fixed by the District Collector.
We have heard the learned Counsel Ms. R. Poornima for Mr.V.R.Rajasekaran, learned counsel for the applicant in Rev.A.No. 221 of 2013, Mr. N. Sakthivel, learned Government Advocate for the respondents 1 and 2 and Mr.S.T.S.Moorthy, learned counsel for the Panchayat.
First, we take up the Rev.A.No. 146 of 2014 for consideration. It is seen that the Block Development Officer, who has been arrayed as the second respondent in the writ petition, did not file any counter affidavit rather, the writ petition was contested by the third respondent/Panchayat. After considering the entire materials, the writ petition was disposed of by the order dated 11.1.2013. The Block Development Officer did not file any appeal as against the order passed in writ petition, but was heard along with the other respondents by the Division Bench and the appeal was disposed of by order dated 15.7.2013.
On a perusal of the grounds raised by the Block Development Officer/ applicant in Rev.Appln.No. 146 of 2014, it is evident that the review applicant seeks to re-argue the merits of the case, which is impermissible in a review application. The learned counsel submits that the difficulty arises only because of the fact that there is no post of Office Assistant in the Tamil Nadu Panchayat Service and that is the reason for the review applicant being unable to implement the order passed by the Division Bench. On a perusal of the grounds raised, it is seen that the review applicant seeks to canvass the merits of the case and in fact certain grounds, which were raised and rejected by the learned single Judge and confirmed by the Division Bench, are now sought to be re-argued and re-urged.
It is settled legal Principle that the review is not an appeal in disguise to re-agitate the matter and therefore, we are not inclined to accept the contentions raised by the learned counsel appearing for the Review Applicant in Rev. Appln.No. 146 of 2014, which is in fact re-arguing the writ petition as well as the writ appeal. However, taking note of the submissions of the petitioner in both the review applications that there is no post of Office Assistant in the Panchayat and the post held by the petitioner was in the cadre of Panchayat Secretary, this Court is of the view that the order passed in the writ appeal requires slight modification. By virtue of which, the writ petitioner should be considered and regularised in the post of Panchayat Secretary, instead of O.A. as ordered earlier. However, such regularisation has to be only with notional effect from the date of the order passed by the Division Bench dated 15.07.2013 and the writ petitioner would be entitled to monetary benefits in the said post of Panchayat Secretary from the date on which, he is regularly appointed.
The learned Government Pleader submitted that as on date there is no vacant post of Panchayat Secretary in the third respondent - Panchayat and that the said post has already been filled up. It is to be noted that the post of Panchayat Secretary fell vacant consequent upon the order passed by the Panchayat terminating the writ petitioner from service. In the said vacancy, a new incumbent has been appointed. The petitioner having been granted the relief by this Court, he is entitled to be appointed in the post of Panchayat Secretary. If there are no vacancies, as on date, then the District Collector as well as the Block Development Officer concerned are bound to create a supernumerary post for the purpose of accommodating the writ petitioner/ review applicant in Rev.A. No. 221 of 2013.
In the result, the Rev. A.No. 221 of 2013 is party allowed holding that the writ petitioner is entitled to be regularised in the post of Panchayat Secretary notionally with effect from 15.7.2013, the date of judgement of the Division Bench in W.A.No. 1382 of 2013 and since there is no vacancy as on date in the post of Panchayat Secretary, a direction is issued to the District Collector and the Block Development Officer, Village Panchayat, St. Thomas Mount, Chennai, to create a post in the cadre of Panchayat Secretary and appoint the writ petitioner on regular basis in the said post within a period of four weeks from the date of receipt of a copy of this order. On such appointment, the writ petitioner is entitled to monetary benefits. For all other purposes, the date of appointment as Panchayat Secretary shall be reckoned as 15.7.2013 except for monetary benefits.
For the reasons assigned supra, the Rev. A. No. 146 of 2014 is dismissed.