2016 Supreme(Mad) 317
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S. MANIKUMAR and C.T.SELVAM, JJ.
The State of Tamil Nadu - Petitioners
Vs.
G.Shanmugasundaram - Respondents
Review Application(MD)No.26 of 2016 and C.M.P(MD)No.1428 of 2016
Decided on : 26-02-2016
Advocate Appeared:
For the Petitioners:Mr.K.Chellapandian Additional Advocate General assisted by Mr.N.Manoharan, Special Government Pleader
For the R1: Mr.R.Laxmanan
Review can only be made if there is a mistake apparent on the face of the record, and it is not an appeal in disguise.
Headnote:
Review - Recruitment Disqualification - G.O.Ms.No.443, Home (Police VI) Department dated 08.06.2006 - [G.O.Ms.No.443] - [Rule 14 of Tamil Nadu Special Police Subordinate Service rules 1978] - [Lasik/Laser Surgery/Excimer Laser Surgery underwent by the candidate is either of the eye shall be deemed to be a disqualification.] - The court reviewed the order passed in favor of the 1st respondent in light of G.O.Ms.No.443, which introduced a disqualification for candidates who underwent certain eye surgeries, leading to the ineligibility of the 1st respondent for the post of Grade-II Police Constable. The court emphasized that review is not an appeal in disguise and can only be made if there is a mistake apparent on the face of the record.
Fact of the Case:
The 1st respondent sought a Writ of Certiorarified Mandamus to quash the orders related to his medical fitness and to direct the respondents to issue appointment order for the post of Grade-II Police Constable.
Finding of the Court:
The court found that the 1st respondent was disqualified from being recruited due to a defect in vision, as per G.O.Ms.No.443, and dismissed the review application.
Issues: The main issue was the eligibility of the 1st respondent for the post of Grade-II Police Constable in light of the amendment introduced by G.O.Ms.No.443.
Ratio Decidendi: The court emphasized that review is not an appeal in disguise and can only be made if there is a mistake apparent on the face of the record.
Final Decision: The review application was dismissed, affirming the ineligibility of the 1st respondent for the post of Grade-II Police Constable.
(Order of the Court was made by Mr.Justice C.T.SELVAM)
The petitioners seek review of the order passed by this Court in W.A(MD)No.875 of 2015 dated 29.10.2015.
2. Though the case of the 1st respondent has come to the attention of this Court time and again by way of writ proceedings, appeals against orders therein, we would restrict ourselves to the proceedings emanating from W.P(MD)No.17034 of 2014.
3. The 1st respondent moved such writ petition seeking the following relief:-
''To issue a Writ of Certiorarified Mandamus to call for the records relating to the impugned orders in R.C.No.222253/Rect.I(2)/2013, dated 23.8.2014 issued by the 2nd respondent and in Na.Ka.No.B1/3964/2014 dated 7.3.2014 issued by the 3rd respondent along with the relevant portions in annexure II referred to in Rule 14 of Tamil Nadu Special Police Subordinate Service rules 1978 relating with the medical fitness and quash the same and direct the respondents to issue appointment order within a stipulated time and pass such further or other orders.''
4. Accepting the contention of the review petitioners/respondents therein that the 1st respondent/writ petitioner suffered a disqualification from being recruited to the post of Grade-II Police Constable, since he suffered defect in vision, W.P(MD)No.1703 of 2014 was dismissed and thereagainst, the 1st respondent moved W.A(MD)No.875 of 2015. Therein, this Court being of the considered view that though the learned single Judge has considered the Certificate issued by Aravind Eye Hospital; the order passed in the Contempt Petition (MD) No.85 of 2014, as well as the report of the Medical Board, no reason had been assigned as to how corneal scars on both eyes would affect the 1st respondent/appellant's vision, allowed the writ appeal under orders dated 29.10.2015.
5. The present review application seeks reconsideration of such order.
6. Heard learned counsel on either side and perused the materials available on record.
7. The main ground raised by learned Additional Advocate General is that under G.O.Ms.No.443, Home (Police VI) Department dated 08.06.2006, an amendment to the special rules for the Tamil Nadu Police Subordinate Service in Annexure II in column (3) was introduced, to the following effect:-
''Any class and Category Direct recruitment'' in column (1), after item (iii) the following item shall be added, namely:-
''(iv) Lasik/Laser Surgery/Excimer Laser Surgery underwent by the candidate is either of the eye shall be deemed to be a disqualification.''
8. It is the contention of learned Additional Advocate General that such amendment has been in force from 28.10.2005. The position which emerges as a consequence of such amendment is the ineligibility of the 1st respondent to be appointed in the post of Grade-II Police Constable.
9. It is his contention that if the referred G.O., had been taken into consideration, this Court in W.A(MD)No.875 of 2015, would not have ordered in favour of the 1st respondent. It is also contended that the same is an error apparent on the face of the record and hence, this Court would consider the same and allow the present review application.
10. We have heard the learned counsel for the 1st respondent/writ petitioner on the above submissions.
11. The review applicants have not informed why G.O.Ms.No.443 presently sought to be relied upon was not brought to the Court's notice or what precluded them, from doing so.
12. We are unable to accept the submission of learned Additional Advocate General that there is an error apparent on the face of the record. What has not been brought to the notice of this Court, cannot be informed to be an error committed by the Court. It is settled law that fresh factual consideration cannot be entered upon in arriving at a decision in a review application.
13. We would like to reiterate that review is not an appeal in disguise. Review can be made only if there is any mistake apparent on the face of the record or there is any clerical error in the orde