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1994 DIGILAW 387 (CAL)

Hiranmoy Nandi v. STATE OF WEST BENGAL

1994-12-22

Altamas Kabir, Satyabrata Sinha

body1994
Judgment 1. THIS application has been filed by the writ petitioner/appellant for reconsideration and/or modification of the order passed in this Appeal on 3rd September, 1991, dismissing the Appeal and the stay application filed therein for stay of operation of the order dated 14th February, 1991, whereby the learned Single Judge had dismissed the application for reconsideration and/or modification of the earlier order passed by him on 5th December, 1994, rejecting the writ application. 2. AS it appears from the aforesaid application, the petitioner filed a writ application for non-approval of his name as an Assistant Teacher of the Narendra Pally Junior High School and the same was dismissed by the learned Single Judge on 5th December, 1990, upon a contested hearing. Subsequently, an application was filed by the writ petitioner for reconsideration and/or modification of the order dismissing the writ application and the said application was also rejected on 14th December, 1991, on the ground that the writ petition had been disposed of on merits. 3. SIGNIFICANTLY, no appeal was taken from the order dated 5th December, 1990, dismissing the writ application and the present appeal was preferred only against the subsequent order dated 14th February, 1991, passed by the learned Single Judge rejecting the petitioner's application for reconsideration and/or modification of the ealier order. 4. A stay application was filed in the Appeal for stay of operation of the said order dated 14th February, 1991, which was considered and disposed of by the Appeal Court, to which one of us was a party, upon holding that the application was misconceived since it was made In connection with the order refusing to reconsider the earlier order by which the writ application itself had been dismissed. In the present application it has been stated that a fresh writ application, being G. O. No. 14064 (W) of 1991; had been moved by the petitioner for the self same reliefs as sought for in the earlier writ application and the same was also dismissed on 25th November, 1991, on the ground that failure to consider certain decisions of the Supreme Court in the earlier writ proceedings could not be a ground for entertaining a fresh writ application. However, while rejecting the writ petition by his order dated 25th November, 1991, the learned Single Judge gave liberty to the writ petitioner/appellant to take appropriate steps before the Division bench. 5. However, while rejecting the writ petition by his order dated 25th November, 1991, the learned Single Judge gave liberty to the writ petitioner/appellant to take appropriate steps before the Division bench. 5. IT has been submitted by Mr. Harasit Chakraborty, learned advocate, appearing in support of the application, that the present application has been made pursuant to such leave granted by the learned Single Judge. 6. MR. Chakraborty submitted that since the decision in the case of Sri rabinarayan Mohapatra v. State of Orissa and Ors. , reported in A. I. R. 1991 sc at page 1286, could not be shown when this Appeal and the application for stay were dismissed, the matter should be reconsidered by the Appeal court and the order dated 3rd September, 1991, dismissing the Appeal should be recalled for reconsideration of the matter in the light of the said judgment. Appearing for the respondents, Mr. A. H.M. Halim submitted that the application under consideration was also misconceived, since the initial order dated 5th December, 1990, whereby the writ application had been dismissed, has not been challenged and has attained finality. Mr. Halim submitted that the application was liable to be dismissed with costs. 7. HAVING considered the submissions made on behalf of the respective parties, we are not inclined to interfere with the order passed on 3rd September, 1991, as nothing new has been brought to our notice, to justify interference with the said order and the decision of the Supreme Court in rabinarayan Mohapatra's case does mot, in our view, improve the petitioner's case even on merit. 8. THE application for reconsideration and/or modification of the order passed on 3rd September, 1991, is, therefore, dismissed, but there will be no order as to costs. Let xerox copies of this order be made available to the learned advocates of the respective parties on the usual undertaking. Satya Brata Sinha, J. 9. ALTHOUGH I agree with the judgment and order prepared by my learned Brother, I would like to add a few words of mine. 10. NORMALLY a review application can be considered only when on error apparent on the face of the record exists. Mr. Chakraborty, learned Counsel appearing on behalf of the petitioner has not been able to point out before us any such error. 11. 10. NORMALLY a review application can be considered only when on error apparent on the face of the record exists. Mr. Chakraborty, learned Counsel appearing on behalf of the petitioner has not been able to point out before us any such error. 11. THIS Court sometime may review its judgment in exercise of its inherent power, but in this case even no case for exercise of its inherent power, has also been made out. 12. IF a decision of the Supreme Court was not cited before the Trial judge or before the Appeal Court, the same by itself is not a ground to review an order. In any event the decision in Rabinarayan Mohapatra's case (supra) as has rightly been pointed out by learned Brother is my also not applicable to the fact of the matter. In that case the petitioner thereof was directed to be regularised in service in view of the fact that he was so entitled in terms of Orissa Aided educational Institutions (Appointment of Teachers) Validation Act, 1989. It is now well settled that a person can claim regularisation in such service only because he was in service for sometime. 13. IT is well known that regularisation cannot be a mode of appointment nor any regularisation can be directed to be made in absence of any statutory provisions or policy decision of the State vide J.K. Public Service commission etc. v. Dr. Narinder Mohan and Ors. reported in 1993 (4) Scale 597 = 1994 (2) SCC 630 = AIR 1994 SC 1808 . 14. YET again in Madhyamik Siksha Parishad, U.P. v. Anil Kumar Mishra and Ors. reported in AIR 1994 SC 1638 wherein it has been held:- "we are unable to uphold the order of the High Court. There were no sanctioned posts in existence to which they could be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out. It is difficult to envisage for them, the status of workman on the analogy of the provisions of Industrial disputes Act, 1947, importing the incidents of completion of 240 days work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947 are entirety different from what, by way of implication, is attributed to the present situation by way of analogy. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947 are entirety different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days* work does not, under that law import the right to regularisation. It merely imposes certain obligations on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy, in an extended or enlarged form here. " In this view of the matter even merits no case has been made out for review of the said judgment. 15. THIS application is, accordingly, dismissed. Application dismissed.