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1989 DIGILAW 469 (CAL)

Mayurakshi Gramin Bank v. Kanchan Kumar Sarkar

1989-09-19

PROBODH DINKARRAO DESAI, SHYAMAL KUMAR SEN

body1989
JUDGMENT Per Chief Justice: The appeal is taken up for hearing by treating it as included in the day's cause list. 2. The first appellant is a Regional Rural Bank established by the Central Government under the Regional Rural Banks Act, 1976. The second appellant is the present Chairman of the said Bank. The first appellant shall be referred to as “the respondent Bank” in the course of this judgment. 3. Respondents No. 1 and 5 herein (hereinafter referred to as “the writ petitioners”) moved a writ petition against the respondent Bank and others on November 29, 1985 seeking the relief, inter alia that the panel prepared and published on July 9, 1984 by the respondent Bank for appointment to the posts of Junior Clerk-cum-Cashier be cancelled or rescinded and that the respondent Bank be directed to forbear from giving effect or any further effect to the said panel and to appoint the writ petitioners in the said post. 4. The said penal was challenged on several grounds, one of them being that candidates were empanelled not in accordance with the merit list prepared by NIBM (National Institute of Bank Management) after holding a written test but arbitrarily and perfunctorily. Some instance, such as the inclusion of candidates in the panel who did not qualify at the written test, inclusion of the names twice over in the panel, etc. were also cited in the writ petition. An affidavit-in-opposition on behalf of the respondent Bank and an affidavit-in-reply on behalf of the writ petitioners were duly filed in the course of the said proceedings. 5. After hearing the learned Advocates appearing for the parties and considering the facts and circumstances of the case, the Trial Court disposed of the writ petition giving directions, inter alia, to the effect that : (1) If there be any vacancies in the post of Junior Clerk cum-Cashier, respondents shall consider the case of the writ petitioners for appointment along with others strictly on the basis of the marks obtained in the written test. (2) No action shall be taken on the basis of the panel prepared by the respondent Bank. (2) No action shall be taken on the basis of the panel prepared by the respondent Bank. (3) All future appointments shall be made from the list prepared on the basis of the marks obtained in the written test held by the NIBM, and (4) The list prepared on the basis of the test held by NIBM shall remain valid and the order disposing of the writ petition shall also remain operative till 171 vacancies are filled up out of such list. This decision became final and binding on the parties since no appeal was preferred. 6. An application affirmed on November 12, 1987 was moved before the Trial Court on December 3, 1987 by the writ petitioners, which was described as “an application for direction and/or clarification”, seeking the relief that the respondent Bank be directed to produce all records in connection with the appointment of Junior Clerks-cum-Cashiers and that the order disposing of the writ petition be modified. The application reiterated the challenge to the panel prepared and published by the respondent Bank for recruitment to the posts of Junior Clerks-cum-Cashiers and attempted to highlight the disparity between the merit list prepared by NIBM and the said panel. The cause of action for making the application was spelt out in the following terms : “Be it mentioned herein that the said list was not available to the petitioners before filing of the writ petition or during the continuation of the proceedings before the Hon'ble 'High Court at Calcutta despite repeated representations and reminders and the same was available only after conclusion of the hearing and pronouncement of order as passed by His Lordship the Hon'ble Mr. Justice A.K. Sengupta. *********** Had the petitioners any opportunity to go through the merit list published by the National Institute of Bank Management before the hearing in that event the same would have been certainly urged by the petitioners to prove the malpractice adopted by the Chairman of M.G. Bank in selecting candidates for Junior Clerk-cum-Cashier but the said scope was not available to the petitioners inasmuch as the said merit list as prepared by the NIBM was not furnished to the petitioners before conclusion of hearing and the petitioners were under impression that the merit list of qualifying candidates as published by the respondent no. 2, being Annexure ‘A’ to the petition, was a true and accurate copy of the merit list as published by NIBM but on a careful scrutiny it has been revealed that the so called merit list published by the respondent no. 2 being Annexure ‘A’ is not a true copy of merit list of qualifying candidates prepared by NIBM being annexure ‘B’ to the petition. *** **** *** That if the petitioners could have known the said factum of malpractices which have been discussed in the foregoing paragraphs in that event it would have been certainly placed before His Lordship at the time of hearing and the same was not available to the petitioners before hearing and the same was available to them after hearing and upon a comparative study of the merit list prepared by the NIBM being annexure ‘B’ to the petition as well as written examination results published by respondent Bank being annexure ‘A’ to the petition as well as the panel published by the Bank being annexure ‘C’ to the petition it is submitted that the whole process of preparation of panel as well as the subsequent appointments made is concocted and totally illegal.” 7. It was urged on the basis of the averments aforesaid that the application was made bona fide and for the ends of justice and that unless the order disposing of the writ petition was modified on the basis of the submissions made in the application, “the petitioners being all educated unemployed youths will be deprived of their legitimate services for no fault on their part.” 8. The application was resisted on behalf of the respondent Bank by filing an affidavit-in-opposition, Besides controverting the allegation made in the application on merits, the application was opposed in the forefront on the following grounds; “The main writ application came up for final hearing before the Hon'ble Mr. Ajit Kumar Sengupta on August 6, 1986 when the merit list prepared by National Institute of Bank Management was produced, Pursuant to the direction of His Lordship copy of the said merit list prepared by the National Institute of Bank Management was given to the learned Advocate for the writ petitioners. Ajit Kumar Sengupta on August 6, 1986 when the merit list prepared by National Institute of Bank Management was produced, Pursuant to the direction of His Lordship copy of the said merit list prepared by the National Institute of Bank Management was given to the learned Advocate for the writ petitioners. After hearing counsel for the parties, by an order dated August 6, 1986 His Lordship was pleased to dispose of the writ application by directing that in the event of any vacancy to the post of Junior Clerk-cum-Cashier, the respondents shall consider the case of the petitioners for appointment along with others strictly on the basis of marks obtained in the written test. The respondents were also directed not to proceed on the basis of panel prepared by the Bank. The instant application has been flied long 15 months after disposal of the mid writ application when the respondent Bank has acted in terms of the said order of this Hon'bie Court dated August 6, 1986. I respectfully submit that no further application lies on the same cause of action. This petition should be rejected on that ground above.” 9. The Trial Court disposed of the application by passing an order on April 19, 1989, the material part whereof reads as follows : “This application is disposed of by directing the respondent Bank to consider the cases of the petitioner nos. 1, 2 and 3 for appointment in the post of Junior Clerk-cum-Cashier as a special case subject to their being otherwise eligible for such post in the vacancies, if any, occurred after the order dated August 5, 1986 was made, due to resignation, superannuation or otherwise in the post of Junior Clerk-cum-Cashier. Such consideration by the Competent Authority be made sympathetically and favourably within a period of four weeks from the date of communication of this order. This order will not, however, create any precedent, which is made in the peculiar facts and circumstances of this case. In the event, if the petitioners or any of them are selected for appointment and in the meanwhile they have crossed the age limit for recruitment, such disqualification shall be condoned as a special case.” Hence the present appeal. 10. The order under appeal, in our opinion, suffers from several infirmities. In the event, if the petitioners or any of them are selected for appointment and in the meanwhile they have crossed the age limit for recruitment, such disqualification shall be condoned as a special case.” Hence the present appeal. 10. The order under appeal, in our opinion, suffers from several infirmities. On the basis of the averments made in the application upon which the order was passed, it was impossible to treat it as one for direction and/or clarification. By way of the said application, what was really attempted to be achieved was a re-hearing and a fresh decision of the writ petition on substantially the same grounds which were urged before the Trial Court earlier. It is difficult to appreciate how such an application could have been made and entertained and that too nearly one year and three months after the writ petition was disposed of and how any relief whatsoever could have been granted in such a proceeding. It is settled law that a judgment pronounced by the Court is final. No departure from that principle is justified even in the Writ Jurisdiction. No attempt by way of an application for clarification and/or direction could and should be encouraged to upset the final decision already rendered in a writ petition. It is also noteworthy in this connection that the order under appeal does not purport to clarify the previous order. It substitutes new directions in place and stead of those issued in the previous order. Apart from the fact that no reasons are given for granting such relief and no justification therefor is apparent from the record, the substitution of the previous directions by fresh directions could have been made only in the exercise of review powers and that too for good and valid reasons and only when circumstances of a substantial and compelling nature make it necessary to do so. There was, in the instant case, no application for review and no permissible grounds for the exercise of the power of review were made out. 11. It is true, as observed in Shivdeo Singh v. Store of Punjab, AIR 1963 SC 1909 , that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. However, such jurisdiction has to be invoked by a proper application and such application has to make out those, grounds justifying the exercise of such power. Besides, the power of review is not unbridled; it is circumscribed by certain limitations. In A.T. Sharma v. A.P. Sharma, AIR 1979 SC 1047 , the definitive limits to the exercise of such power in Writ Jurisdiction have been spelt out as follows : “The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.” 12. In the present case, none of the grounds on which the power of review could have been exercised was present. The application made by the writ petitioners appears to have been rested on the allegation that there was discovery of new and important matter or evidence which was not within their knowledge or which could not be produced at the time when the previous order was made. This is apparent from the relevant portions of the application which have been extracted hereinabove. However, the case set out in the affidavit-in-opposition as well as in the stay application filed herein on behalf of the respondent Bank completely belies the said stance of the writ petitioners. The case of the respondent Bank is that the merit list prepared by NIBM was made available to the learned Counsel for the writ” petitioners before the hearing of the writ petition concluded. The fact that the said list was before the Trial Court is apparent even from the contents of the order disposing of the writ petition. The case of the respondent Bank is that the merit list prepared by NIBM was made available to the learned Counsel for the writ” petitioners before the hearing of the writ petition concluded. The fact that the said list was before the Trial Court is apparent even from the contents of the order disposing of the writ petition. There was, therefore, no justification even for the review of the order on the purported ground urged in the application which was moved long after the decision of the writ petition. On merits also, it is difficult to appreciate how the case of the three writ petitioners could have been directed to be considered 'sympathetically and favourably' in the vacancies, if any, occurred after August 5, 1986, without considering the claims of other eligible persons who might have obtained higher place on the merit list prepared by NIBM. 13. For the foregoing reasons, the order under appeal is set aside. The application upon which the order was made is rejected on the ground that it was not maintainable. If the writ petitioners are aggrieved by any development subsequent to the disposal of the writ petition which furnishes any fresh cause of action, it would be open to them to move the appropriate forum. 14. The appeal, accordingly, succeeds and is allowed with no order as to costs. 15. No separate order is required to be passed on the stay application which too stands disposed of in light of the foregoing order. Interim orders, if any, stand vacated. Shyamal Kumar Sen, J. : I agree. Appeal allowed.