IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 24..3..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. Nos. 29526 and 29527 of 2002 S. Sivanesan ... Petitioner in both W.Ps. -vs- 1. Union of India Government of Pondicherry Through the Secretary to Government for Power Chief Secretariat Pondicherry 2. Superintending Engineer Electricity Department Pondicherry ... RR1 and 2 in both W.Ps. 3. A. Veerasamy ... R3 in W.P. No. 29526 of 2002 3. C. Mani 4. N. Bharadhan 5. A. Premkumar Doss 6. S. Natarajan 7. R. Radhakrishnan 8. A. George Basin Rayan 9. V. Gopalan 10. G. Emperuman 11. M. Kalaimani 12. A. Veerasamy .. RR3 to 12 in W.P. No. 29527 of 2002 13. The Registrar Central Administrative Tribunal Chennai Bench Chennai .. Respondent in both W.Ps. Petitions under Article 226 of the Constitution of India praying to issue a writ of Certiorari to quash the impugned order dated 22.01.2001 passed by the Tribunal in O.A. Nos. 571 of 1998 and 1021 of 1999 respectively. For Petitioner : Mr. M. Gnanasekar For Respondents 1&2 : Mr. Syed Mustafa, AGP (Puducherry) COMMON ORDER K. CHANDRU, J.
Heard the arguments of Mr. M. Gnanasekar, learned counsel appearing for the petitioner and Mr. Syed Mustafa, learned Additional Government Pleader (Puducherry) representing the respondents 1 and 2 and have perused the records.
2. The petitioner was working as an Assistant Engineer in Karaikal and he had filed an Original Application in O.A. No. 258 of 1999 before the Central Administrative Tribunal [for short, ‘CAT’]. Another person by name A. Veerasamy, who was similarly placed also filed another Original Application being O.A. No. 260 of 1998 before the same Tribunal. These two original Applications were dealt with by the CAT and a common order dated 05.10.1999 was passed dismissing both the Original Applications. The two Original Applications were filed challenging the order dated 10.3.1998 wherein and by which the petitioner was reverted from the post of Assistant Engineer to that of Junior Engineer Grade I.
3. The CAT, in the earlier applications filed by two individuals being O.A. Nos. 557 of 1993 and 558 of 1993, by an order dated 15.12.1994, directed the Government of Puducherry to convene a review DPC and consider the case of eligible Junior Engineers up to three times of the number of vacancies for the years 1986, 1987 and 1990. Pursuant to the said order, the Government passed G.O. Ms. No. 5, Industrial Development dated 10.3.1998 and granted promotion to two Junior Engineers to the post of Assistant Engineer on regular basis. It is consequent upon the implementation of the said order, in the review DPC held on 24.4.1997, the names of petitioner and Veerasamy were not found in the list furnished. Thereafter, they were given a show cause notice asking their explanation as to why they should not be reverted. After considering the representations, the reversion orders came to be made.
4. The CAT, after notice to parties, by its common order dated 05.10.1999, held that only according to seniority, an officer can come within the zone of consideration and in the case of the applicants, they were not eligible for being considered. In fact, the petitioner’s name was found in the seniority list as Serial No.125 of the list relating to Junior Engineers and the last Diploma holder, whose name was considered, was having Serial No. 63. It was also held that even if there was any expanded zone of consideration, the petitioner’s name cannot be considered and that vacancies for all the years cannot be pooled together and a single panel can be prepared.
5. As against the said order, the petitioner filed a writ petition being W.P. No. 16980 of 1999. This Court, by an order dated 15.10.1999, dismissed the writ petition and finally held as follows:
“However, in future as and when vacancy arises, the Government will consider the case of the petitioner according to law. In view of that we do not find any error or illegality in the order of the Tribunal so as to call for any interference.”
6. Thereafter, once again, the petitioner filed another Original Application being O.A. No. 1021 of 1999 along with the other person by name Veerasamy (applicant in O.A. No. 571 of 1998) and contended that due to restructuring of the post of Junior Engineers as that of Junior Engineer Grade I and Junior Engineer Grade II, there is no common cadre of Junior Engineers and for persons who were holding the post of Junior Engineers, the next higher grade is that of Assistant Engineer. As per the Recruitment Rules, the promotion can be made to the post of an Assistant Engineer by a Diploma holder having seven years regular service in the grade of Junior Engineer and by a Degree holder, with three years regular service in the cadre of JE can be considered. Therefore, when amendments were made in the cadre of Junior Engineers, necessary amendments should have been made in the cadre of Assistant Engineers also.
7. It was further contended that the petitioner was originally promoted in the reserved quota and when seven other persons under General Categories were promoted, he was reverted. Though his O.A. No. 259 of 1999 was dismissed and confirmed by this Court in a subsequent writ petition, the present writ petition was filed challenging the Recruitment Rules relating to the case of Assistant Engineers insofar as it does not provide for any change though for the lower post of Junior Engineer, changes were made. In O.A. No. 1021 of 1999, the promotion given to the private respondents 3 to 11 was also challenged.
8. The CAT, by a common order dated 22.01.2001, dismissed both the applications and held that the Recruitment Rules cannot be held to be invalid and that the Department was following the seniority list prepared in the year 1992. Further, it was held that the petitioner’s grievance, which was raised even in O.A. No. 259 of 1999, was dismissed by the Tribunal and the same was confirmed by the High Court and consequent upon which, the petitioner was also reverted to the lower post. Therefore, he cannot once again, bring back the same cause of action in the guise of challenging the Recruitment Rules. In respect of O.A. No. 1021 of 1999, the CAT held that the same issue was dealt with in the earlier round of litigation and the petitioner was not coming within the zone of consideration and, therefore, his case cannot be considered.
9. We do not consider that the petitioner had made out any case except reiterating the very same contentions which were already dealt with by this Court in the earlier round of litigation. It is highly improper for the petitioner to have started a second round of litigation especially when his earlier O.A. was dismissed and confirmed by this Court and no new cause of action had arisen and he cannot argue all over again the same issue.
10. Amendments to the Recruitment Rules is a policy of the Government and the Rules framed under Article 309 of the Constitution of India is legislative in character. The Court cannot issue a mandate to the Government to make Service Rules under Article 309 of the Constitution of India. The Court also cannot direct or advise the Executive in matters of policy or to sermonise regarding any matter which, under the Constitution lies within the sphere of legislature or executive. The Supreme Court in the matter relating to Mallikarjuna Rao v. State of Andhra Pradesh [1990 (2) SCC 707], observed as follows:
“The courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule-making power in any manner. The court cannot assume to itself a supervisory power over the rule-making power of the executive under article 309 of the Constitution.”
11. Apart from the present proceedings initiated by the petitioner which is hit by the principles of the res judicata, the petitioner also has not made out any case to persuade us to give a direction to amend paragraph 11 of the Recruitment Rules relating to appointment in the post of Assistant Engineers.
12. In the light of the above, both the writ petitions fail and accordingly, stand dismissed. However, there will be no order as to costs.
gri
To
1. Union of India
Government of Pondicherry
Through the Secretary to Government for Power
Chief Secretariat
Pondicherry
2. Superintending Engineer
Electricity Department
Pondicherry
3. The Registrar
Central Administrative Tribunal
Chennai Bench