Union of India and The Director of School Education, Office of the Director of School Education vs The Central Administrative Tribunal and Djegadissane

M.M. Sundresh, J.—This writ petition has been filed by the petitioners challenging the order passed by the first respondent in O.A. No. 830

of 2006, dated 30.01.2009, in allowing the application filed by the second respondent with a direction to formulate proper policy by providing

necessary relief as claimed for in the Original Application. The facts in brief:

1.1. This is a second round of litigation. The post of School Assistant Grade-II in the Department of School Education, Government of

Pondicherry, is governed by the Recruitment Rules framed under proviso to Article 309 of the Constitution of India. The Recruitment Rules for the

said post were initially framed vide Government Order passed in G.O.Ms. No. 54/78/Edn.SO(E), dated 23.05.1978. The second respondent was

not recommended to the post of School Assistant Grade-II from the feeder category of Secondary Grade Teacher. Aggrieved against the failure

on the part of the petitioners in not promoting the second respondent, an application was filed before the first respondent in O.A. No. 1147 of

1996 seeking the following prayer.

to declare that only graduates in English are eligible to be promoted as School Assistant Grade-II to teach English as per the Recruitment Rules

1978 and to declare that the denial of the promotion as School Assistant Grade-II to the eligible Secondary Grade Teacher who posses English

graduation with effect from 28.06.1992 pursuant to the respondents circular dated 30.01.1991 and 03.01.1992 where the counter parts in other

subjects were promoted as illegal and unconstitutional and to promote them as School Assistant with effect from 23.06.1992 with all other

attendant benefits of seniority/arrears of salary.

The application in O.A. No. 1147 of 1996 filed by the second respondent along with another application in O.A. No. 1868/93, were disposed of

by a common order, dated 20.11.1997, by directing the petitioners to evolve a policy regarding promotion to School Assistant Grade-II in

accordance with the Recruitment Rules, 1978. Accordingly, the petitioners revised the Recruitment Rules pertaining to the post of School Assistant

Grade-II as per G.O.Ms. No. 35, dated 15.05.1998, based upon subject wise requirement in the discipline of (i) Mathematics, (ii) Science, (iii)

Social Science and (iv) English.

1.2. Aggrieved against the order passed by the first respondent in not granting the promotion sought for, the second respondent filed a writ petition

before this Honourable Court in W.P. No. 15451 of 1998. The said writ petition was disposed of on 27.03.2002 by this Court in the following

manner:

In fact, the has in its order based on the reply filed by the respondents duly noted that in the Departmental promotion Committee held in March

1994, vacancies were considered subject wise. The details of such vacancies have also been especially referred to therein. As far as English

subject is concerned, it is noted that 54 vacancies were considered and it is also stated that 54 candidates were selected while 34 candidates were

promoted and posted against the then existing vacancies. It was never in controversy that any candidate possessing any other qualification was

selected and promoted for the post of English subject. In such circumstances, the grievances expressed by the petitioner before the was found to

be highly imaginary and in the circumstances therefore, there was no scope at all for countenancing the prayer of the petitioners before the Tribunal.

In any event, the graciously considered the original application filed by the petitioners and ultimately gave a direction to the official respondents to

spell out their policy regarding promotion to School Assistants Grade II in elaboration of the 1978 recruitment rules. After the pronouncement of

the orders of Tribunal, the respondent State has also come forward with a notification dated 15.05.1998 along with a table under Rule 12 wherein

it has been specifically provided that promotion from Secondary Grade Teachers and all categories of teachers equivalent to Secondary Grade

Teachers should satisfy the subject requirements and also the language (medium of instruction) requirement of the post to which promotion is made

as detailed in the table with the required number of years of service in the post. Thus, any ambiguity complained of by the revised Recruitment

Rules as notified on 15.05.1998 which of course had only prospective application. Since non of the grievances of the petitioners really existed

when they preferred the original application, there is no scope for finding fault with the order of the and also the direction issued by it in the said

order. We, therefore, do not find any scope at all for interfering with the said order of the and in any event the revised recruitment rules sufficiently

takes care of the interest of the Secondary Grade Teachers with specific reference to the conferred subjects or languages of the Secondary Grade

Teachers and in the circumstances there is no scope for granting any other reliefs in this writ petition other than what was already been done by the

in the order impugned in this writ petition. There is no merit in this writ petition and the writ petition therefore fails and the same is dismissed. No

costs. Consequently, concerned pending W.M.Ps. are also dismissed.

1.3. The order passed by this Court in W.P. No. 15451 of 1998 has become final between the parties. In the meeting held on 12.03.2001, about

148 general candidates, including the second respondent, were recommended for the post of School Assistant Grade-II. However, the second

respondent declined the offer of promotion. The further offer made to him on 24.12.2003 was also declined. Thereafter, a memo was issued on

13.05.2005 stating that the retrospective promotion sought for by the second respondent cannot be considered as such a request was already

declined by the Honourable High Court while confirming the order passed in O.A. No. 1147 of 1997. The second respondent joined the duty as a

School Assistant Grade-II on 27.05.2005. Thereafter, he made a representation once again seeking retrospective promotion as School Assistant

Grade II (English) with effect from 23.06.1992. The representations made on 09.03.2006 and 04.05.2006 were rejected on 19.06.2006 on the

ground that there is nothing else to consider as the issue raised was already decided by the Court of law.

1.4. Not satisfied with that, the second respondent filed an application once again in O.A. No. 830 of 2006. The application was allowed with a

direction to consider the case of the second respondent for the reliefs sought for by him before the Tribunal. The petitioners have challenged the

said order before us.

During pendency of the writ petition, an order was passed by the petitioners on 15.03.2013 giving promotion to the second respondent with

effect from 2001, in the interest of justice. The order passed by the petitioners in paragraph No. 2 is reproduced here under:

Now therefore, after careful consideration of all the facts and circumstances herein above explained, the undersigned comes to the conclusion that

the ends of justice would be met, if Thiru. Djegadissane is offered promotion with effect from 26.03.2001, being the date on which he had

represented to the Department to mention the subject based on which he was offered promotion to the post of S.A. Gr.-II. It is obvious that, had

Thiru. D. Djegadissane''s request for mentioning his subject in his promotion order been acceded to in the year 2001 as done in 2005, he would

have joined duty as early as in 2001 in all probabilities. The representations dated 09.03.2006 and 04.05.2006 are hereby disposed of directing as

follows:-

Thiru D. Djegadissane, School Assistant Grade-II (English), Thamizh Thendral Thiru Vi. Ka., Govt. High School, Puducherry, is promoted to the

post of S.A. Gr.-II, retrospectively, with effect from 26.03.2001, with all attendant service benefits according to law.

In pursuant to the said order, a consequential order was passed on 15.04.2013, which is also reproduced here under:

In view of the above notional promotion of Thiru D. Djegadissane, School Assistant Grade-II (now re-designated as Trained Graduate Teacher),

(English), his pay is fixed notionally with effect from 26.03.2001 at Rs. 6025/- in the scale of pay of Rs. 5500-175-9000 (pre-revised) of Central

Civil Service (Revised Pay) Rules, 2008 under FR-22(1)(a)(1) with date of next increment on 01.03.2002. Further fixation based on the 6th Pay

Commission recommendations will be done after getting concurrence of Directorate of Accounts and Treasuries, Puducherry. He is entitled to all

consequential benefits like notional fixation of pay and seniority on par with that of his immediate junior Thiru N. Natarajan, Trained Graduate

Teacher as per the Minutes of the Departmental Promotion Committee Meeting held on 12.03.2001 in the discipline of English. His tentative

seniority in the discipline of Trained Graduate Teacher, (English) is 1443-a.

The learned Government Pleader (Pondy) appearing for the petitioners would submit that the Central Administrative Tribunal has misconstrued

the submission made before it. There was already a policy evolved in pursuant to the directions to the earlier order passed by the Central

Administrative Tribunal as confirmed by this Court. What was submitted before the Central Administrative Tribunal was to have a relook, but it

has exceeded its jurisdiction by granting directions uncalled for, which are contrary to the earlier orders passed. The earlier decisions have become

final. The second respondent cannot reagitate the entire issue which has been concluded long time back. Therefore, he has submitted that the writ

petition has to be allowed.

Per contra, the second respondent appearing as a party-in-person, would submit that he has been affected in view of the wrong policy adopted

by the petitioners. Even though he has been given promotion with effect from the year 2001, he is entitled to get the same from the year 1992. The

counsels representing him did not pursue the matter earlier in an appropriate way. Juniors to the second respondent have been promoted ahead of

him. Therefore, he has submitted that no interference is required.

The facts narrated above are not in dispute. The second respondent sought for the very same relief earlier before the Central Administrative

Tribunal. He was not satisfied with the directions given by the Central Administrative Tribunal in framing the Rules. In fact, his rights have only

accrued from the Rules framed in pursuant to the directions issued by the first respondent as confirmed by this Court. Now, what the second

respondent seeks before us is to reagitate the issues raised by him regarding his retrospective promotion from the year 1992 onwards. With the

very same grievance, he filed a writ petition before this Court challenging the order of the Tribunal. This Court considered the same in extenso and

rejected the same against the second respondent. The reasoning of this Court was already extracted by us in the preceding paragraphs. Therefore,

we are of the view that the second respondent cannot be permitted to reagitate and re-litigate the matter, which has already been decided finally

against him. Further more, the second respondent has accepted the proceedings dated 13.05.2005 and joined duty as a School Assistant Grade-II

on 27.05.2005. Therefore, he is estopped from raising any plea in this regard thereafter. However, he has sought to re-open the issue, which has

already been concluded against him, by approaching the Central Administrative Tribunal in the year 2006. We are afraid, such an attempt cannot

be approved in the eye of law. It is settled law that relitigation in any form cannot be made permissible. The decision rendered against the second

respondent by this Court in W.P. No. 15451 of 1998, on 27.03.2002, has become final between the parties. This Court has considered all the

contentions raised by the second respondent and thereafter, rejected the request. Now he seeks to raise the very same contention before us. The

first respondent did not consider these issues. When the very application itself is not maintainable, a consequential direction ought not have been

entertained. The directions given by the first respondent are contrary to the orders passed earlier by it as confirmed by this Court. The finding

rendered on the non-availability of a policy is also not factually correct as it was in existence when the order was passed. The statement made by

the learned Government Pleader has not been understood in the proper perspective in which it was made. Therefore, we are not able to approve

the order passed by the first respondent, which is not based upon either law or correct facts. Accordingly, we set aside the order of the first

respondent and consequently, the writ petition is allowed. However, we do not wish to say anything on the subsequent development made. The

learned Government Pleader would submit that the subsequent orders have been made on a compassionate consideration of the case of the

second respondent by giving promotion with effect from the year 2001 for the first time. We are also informed that the said order was passed in

pursuance of the observations made by this Court. We do not wish to say anything on the orders passed except that the petitioners shall not

disown the said orders which have been passed in favour of the second respondent. Accordingly, this writ petition is allowed subject to the

observations made above. No costs. Consequently, connected miscellaneous petition is closed.