ORDER
F.M. Ibrahim Kaligulla, J.
1. The petitioner seeks for the issuance of a Writ of Mandamus, to direct the first and second respondents to restore the petitioner to Judicial Service and appoint him as Judicial Magistrate with a further direction to pay all attendant benefits as applicable to Judicial Magistrate.
2. The petitioner joined as Junior Assistant in District Munsif Court, Tirunelveli in the year 1957 and was confirmed in the said post in December, 1959. After securing a law degree, he got selected and appointed as a temporary Sub Magistrate, Vaniyambadi in the year 1973. Thereafter he was working as Judicial Second Class Magistrate III, Madurai. Between 5-1-1979 and 25-11-1980, he happened to dispose of two Summary Trial Cases in S.T.C.Nos.3486 of 1979 and 17 of 1980 by a common judgment which arose under the provisions Tamil Nadu Industrial Establishment (National Festival Holidays) Act. An appeal came to be preferred before the Chief Judicial Magistrate, Madurai, who while setting aside the order of the petitioner in C.A.No.110 of 1980, passed strictures against the petitioner for the irregular manner in which he wrote the judgment. The Chief Judicial Magistrate, apart from passing strictures, stated to have reported the matter to the second respondent which ultimately resulted in termination of the petitioner’s judicial career by virtue of application of Section 13(e) of the Tamil Nadu Magisterial Service Rules. The order of termination was passed in G.O.No.3405, Home Department, dated 29-12-1980. The petitioner thus got reverted to his parent department of the Judicial Ministerial Service, He got relieved on 3-1-1981. The petitioner, after his reversion to the Judicial Ministerial Service, became a Sheristadar in the year 1994 and also reached the age of superannuation.
3. The petitioner preferred Crl.M.P.No.857 and 859 of 1981 before this Court and by order dated 23-6-1982, the strictures passed by the Chief Judicial Magistrate were expunged by this Court. The petitioner also filed W.P. No. 6216 of 1982 challenging G.O.No.3405 dated 29-12-1980. The said Writ Petition was resisted on behalf of the second respondent by filing a detailed counter on 22-4-1983. By order dated 3-11-1983, the Writ Petition was dismissed holding that the order of termination being one of termination simpliciter casting no stigma on the petitioner, the same did not call for interference. The petitioner filed W.A.No.1103 of 1983 and the Division Bench of this Court by its order dated 22-3-1990 confirmed the order of the learned Single Judge.
4. The petitioner preferred a representation on 15-5-1993 through the third respondent for the review of his reversion. In fact, when the third respondent forwarded the said representation of the petitioner dated 15-5-1993 with its recommendation suggested that in view of the fact that the remarks made by the Chief Judicial Magistrate having been expunged by the Honourable High Court in Crl.M.P.Nos.857 and 859 of 1981 and there being no other departmental action against the petitioner for any irregularities, his request can be favourably considered. While dealing with the said recommendation, the second respondent in its official memorandum dated 4-10-1993, observed that the third respondent failed to take into account the relevant circumstances, namely, that the order of the reversion was subject matter of challenge in Writ Petition as well as Writ Appeal which were dismissed by this Court and in such circumstances, the recommendation made by the third respondent ignoring such vital aspects called for stringent action against the third respondent. The Official memorandum has been filed as one of the documents in the typed set of papers filed along with this Writ Petition. Thus the whole basis of the petitioner’s claim made in this Writ Petition is some of the remarks found in the said official memorandum of the second respondent dated 4-10-1993.
5. Mr. N.G.R. Prasad, learned counsel appearing for the petitioner would vehemently contend that a reading of the official memorandum dated 4-10-1993, as well as, the counter affidavit now filed on behalf of the second respondent disclose that though the earlier order of termination of the petitioner’s service in G.O.No.3405 dated 29-12-1980 appeared to have been made as an innocuous one, the same was really intended to punish the petitioner by treating his judicial conduct in writing the judgments as an unbecoming one of a member of the said service and in such circumstances, the failure of the first and second respondents in not following the constitutional mandate, namely Article 311 of the Constitution would render the whole termination invalid and that the disposal of the earlier Writ Petition, as well as, Writ Appeal preferred by the petitioner which resulted in the confirmation of the said order made in G.O.No.3405 dated 29-12-1980 would not in any way preclude the petitioner from seeking for the remedy as made in the present Writ Petition. Reliance was placed upon the judgments of the Honourable Supreme Court and .
6. The learned Government Pleader appearing on behalf of the respondents would contend that the termination order having been confirmed by this Court in the earlier Writ Petition, as well as, Writ Appeal preferred by the petitioner, the prayer of the petitioner cannot be countenanced or otherwise it would only unsettle a settled affair. The learned Government Pleader would further contend that the Official memorandum dated 4-10-1993 being an internal one, which was never ment for the petitioner, cannot be a cause of action for preferring the present Writ Petition.
7. Having heard the learned counsel for the parties and on a perusal of the earlier order dated 3-11-1983 made in W.P. No.6216 of 1982, as well as, the Division Bench order of this Court dated 22-3-1990 made in W.A.No.1103 of 1983, we find absolutely no scope for granting any relief to the petitioner in this Writ Petition. The termination of the petitioner’s services as a Judicial Officer came to be made by virtue of application of Rule 13(e) of the Tamil Nadu Magisterial Service Rules which undoubtedly provides for effecting such a termination in the circumstances in which the petitioner was placed at the time of issuance of the order of termination in G.O.No.3405, dated 29-12-1980. In fact, when the petitioner made a challenge to the order of the termination in W.P. No.6216 of 1982, a counter affidavit was filed on behalf of the second respondent, wherein, the circumstances which led to the termination of the petitioner’s services have been stated in unambiguous terms. There was no room for doubt to hold that while issuing the order of termination, it was intended to cast any stigma on the petitioner’s career. On an overall consideration of the petitioner’s judicial career, it was thought fit that instead of casting any aspersions against the petitioner, it would be in his best interest to relieve him of the post of Judicial Officer by passing an innocuous order of termination and thereby revert him to his parent position. A reading of the order of termination or the averments in the said counter affidavit does not suggest that the respondents intended to malign the petitioner’s judicial career.
8. In the Writ Petition, as well as, in the Writ Appeal, this Court was pleased to consider all the contentions raised on behalf of the petitioner and in fact, the Division Bench, in its order dated 22-3-1990 was pleased to hold as under in para 11: “11.Having regard to the position as set out by the Division Benches of this Court, as above, the allegations made by the appellant herein against the order of reversion to the effect that it amounts to punishment is no longer sustainable. On a careful consideration or the averments made in the counter affidavit and the submissions made by the learned Government Pleader it is clear that the respondents considered the question of suitability of the appellant to continue in the judicial service and found that his services might no longer be required and the after passed orders sending him back to his parent department. The appellant herein had not made any allegation of MALS FIDE intention against any of the respondents herein and hence the decision cited by the learned counsel for the appellant reported in S.BALLIAH versus THE GOVERNMENT OF TAMILNADU, REPRESENTED BY COMMISSIONER AND SECRETARY, HOME DAPARTMENT, FORT ST.GEORGE, MADRAS-9 AND OTHERS (1984 TNLJ 233) has no application to the facts of the present case. In the absence of any allegation as to the mala fide intention against the respondents herein, the impugned order cannot be said to be penal in nature, but in accordance with Rule 13(e) of the Rules, referred herein above. In the process of assessment, the respondents were of the opinion that the services of the appellant were no longer required in the judicial department and consequently repatriated the appellant to the parent department. Having regard to the fact that the appellant had retained his lien in the parent department he has not lost his right to continue on the post in the parent department and that the appellant has not lost his seniority in the parent department. While so, the question of punishment and discrimination, as alleged, do not arise and equally the impugned order repatriating the appellant to the parent department does not involve any penal consequence; nor does it case any stigma upon the appellant and consequently there is no violation of Articles 14, 16 and 311 of the Constitution of India, as contended by the learned counsel for the appellant. In view of the aforesaid facts and circumstances, the decision of the learned single Judge does not call for any interference.”
9. When such a detailed analysis having been made by this Court in the earlier round of litigation and found that it was an innocuous order of termination simpliciter which did not cast any stigma on the petitioner’s career, it is too late in the day for the petitioner in attempting to reopen a settled affair by relying upon an internal official memorandum which was an internal communication between the second and third respondents. When once the order of termination issued against the petitioner was subject matter of challenge and in which the whole controversy was analysed threadbare and it was found that there was neither mala fide nor any penal element in passing the said order of termination that too up to the stage of Division Bench of this Court and when the said detailed analysis made by the Division Bench in its order dated 22-3-1990 had also become final and conclusive, it would be wholly inappropriate to allow the petitioner to reopen the said settled proceedings merely on the basis of certain communications which transpired between the second and third respondents and which communication was never meant for the petitioner.
10. Further whatever said in the proceedings dated 4-10-1993 did not in any way alter the basis which resulted in the issuance of the order of termination in G.O.No.3405 dated 29-12-1980. Merely because certain expressions came to be made either in the official memorandum dated 4-10-1993 or in the present counter affidavit filed on behalf of the second respondent, it cannot be held that the whole basis of the order of termination in G.O.No.3405 dated 29-12-1980 was set at naught so as to give a fresh cause of action for the petitioner to maintain the present Writ Petition. To put it differently, the expressions used either in the counter affidavit or in the official memorandum dated 4-10-1993 can by no stretch of imagination be said to provide any fresh cause of action for the petitioner, to contend that the whole proceedings should be reopened or that would nullify the effect of the basis on which the original order of termination in G.O.No.3405 dated 29-12-1980 came to be made. Therefore looked at from any angle, there is absolutely no scope for reviewing the termination order issued to the petitioner in G.O.No.3405 dated 29-12-1990. When once that position becomes certain, the claim of the petitioner as made in the present Writ Petition cannot be countenanced for whatever reasons urged by the petitioner in this Writ Petition. We are therefore unable to countenance the claim of the petitioner made in this Writ Petition.
11. The judgments relied upon by the learned counsel for the petitioner (ANOOP JAISWAL versus GOVERNMENT OF INDIA AND ANOTHER), as well as, in (NAND KISHORE versus STATE OF PUNJAB) were rendered entirely different context altogether and we do not find any scope for applying the ratio of the above stated judgments to the facts of this case. In which was a case of termination of a probationer, the Honourable Supreme Court was pleased to hold that the Court can go behind the formal order of discharge to find the real cause for such discharge. In that case, it was ultimately found that the order was actually based upon a reported recommendation of the concerned authority indicating commission of alleged misconduct and therefore it was held to be a punitive one passed in violation of Article 311(2) of the Constitution which rendered the said order liable to be set aside. As stated earlier in the case on hand, the basis for the termination of the services of the petitioner as a Judicial Officer by applying Rule 13(e) of the Tamil Nadu Ministerial Service Rules was on the ground of unsuitability based on certain relevant factors. It was never the case of the second respondent that any other circumstance or factor weighed with the second respondent while issuing the G.O.No.3405 dated 29-12-1980. Therefore we do not find any scope at all to apply the ratio of the said judgment to the facts of this case. Similarly in the judgment , the Honourable Supreme Court was concerned with a case in which a claim of an employee came to be reviewed in view of the holding of a particular rule as ultra virus. It was in that context, though the claim of the employee was earlier turned down when the validity of the very same rule was very much intact, in view of the subsequent ruling in relation to that particular rule, the Honourable Supreme Court was pleased to hold that the employee was entitled for the grant of the relief even though in the earlier court proceedings, the claim of that employee was rejected which also became final at a particular stage. There is absolutely no comparision at all of the case of the petitioner to the one dealt with by the Honourable Supreme Court in the above decisions, we therefore do not find any scope at all to grant any relief to the petitioner in this Writ Petition.
In the result, the Writ Petition fails and the same is dismissed. No order as to costs. Consequently, W.M.P. is closed.