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2002 DIGILAW 694 (CAL)

Monirul Islam v. Sombhunath Bhattacharjee

2002-11-20

Amitava Lala

body2002
Judgment Amitava Lala, J. This is an application for review and/or recalling or modification of the earlier order passed by this court on 26th February, 2001. Primarily, it appears to this court that no ground of review has been taken in the application itself. Therefore, it is very difficult to draw a conclusion that what are the new grounds of facts or law available in this review application. 2. The original order which has passed on 26th February, 2001 is quoted hereunder as follows : "The matter of writ petition is very short. The petitioner has been empanelled on the top of the panel of selection after interview. But till today no appointment was given. There is no dispute that the panel is subsisting. Under such circumstances, I called upon the respondents to give reply. The only reply came forward by the respondents that the financial condition of the organisation is not well and for that reason only one or two compassionate appointment was given but no other appointment was given for last ten years. It is submitted that the respondents have no difficulty in admitting the position that as soon as any appointment is given, the case of the petitioner will be considered. According to me, there is no defence on that part of the respondents excepting getting time. Therefore, in this hard days, position of a citizen in getting his livelihood should not be disturbed in the manner as proposed by the respondent-authorities. Therefore, after considering the balancing factor, I dispose of the writ petition by giving six months time to the authority concerned to give appointment of the petitioner. According to me, this period is the longest period for the purpose of giving employment of the first empanelled candidate in the service which is allowed by the court taking into account all pros and cons and balancing factors." 3. The learned counsel appearing for the applicants-respondents contended before this court that due to Government ban on recruitment of staff in the State of West Bengal and its different undertakings, all recruitments were stopped by the Corporation. The learned counsel appearing for the applicants-respondents contended before this court that due to Government ban on recruitment of staff in the State of West Bengal and its different undertakings, all recruitments were stopped by the Corporation. In the meantime, a writ petition being W.P. 255/92 was moved in the High Court at Calcutta in the year 1992 and a single Bench of this court was pleased to pass an order on 17th March, 1992 from which it appears that the petitioner has become successful in the interview and his name is already in the panel and the issuance of the appointment letter pursuant to such interview has been kept in abeyance. Therefore, the Corporation appeared and submitted that immediately when the scope for giving appointment will arise and the appointment will be made in terms of the panel, the petitioner's case will be considered. Upon recording such submission, the matter was disposed of. 4. On 5th June, 1992, the Department of Scheduled Castes and Tribal Welfare, Govt. of West Bengal, issued an order by instructing the Scheduled Caste/Scheduled Tribes Roster should be followed in accordance with 20 point and 50 point Roster. It may be noted that the Corporation was born in the year 1974 and at the buding stage, this policy was not followed strictly and as such, with a view to follow the principles of the Govt. order, the Corporation decided to follow the Roster and naturally took decision to fill up the eight vacancies of electricians from the Scheduled Caste and Scheduled Tribe candidates. Under such compelling circumstances, the writ petitioner was not given appointment. 5. On 21st July, 1992, the Deputy Secretary of the concerned department proposed to cancel the panel because there was a ban on recruitment by the State Government and also the Roster was not followed by the Corporation for the purpose of appointment of electricians. 6. On 27th February, 1995, the Law Officer of the Corporation gave a confidential report from which it would be evident that there were eleven vacancies for the post of electricians under the Corporation. Eight electricians would be appointed from the Scheduled Castes and Scheduled Tribes category i.e. six from Scheduled Castes and two from Scheduled Tribes. It is also evident that the name of the petitioner was in third position in the panel. Mr. Fazrul Haque was in first position and Md. Eight electricians would be appointed from the Scheduled Castes and Scheduled Tribes category i.e. six from Scheduled Castes and two from Scheduled Tribes. It is also evident that the name of the petitioner was in third position in the panel. Mr. Fazrul Haque was in first position and Md. Nurul Islam was in second position. The Corporation called all the candidates of Ratua Project with a view to take action. Since none of the candidates belonged to Scheduled Castes or Scheduled Tribes category, no appointment was given. In the meantime, one of the candidates like the petitioner moved a writ petition when a Bench of this court by an order dated 10th April, 1996 was pleased to direct the respondents to consider the case of such petitioner with the prescribed period. The authority concerned considered the issue and held that since such candidate was not belonged to Scheduled Castes or Scheduled Tribes category, the appointment would not be given. The Corporation was not in a position to produce the relevant documents at the time of hearing because of devastating flood in Maida, otherwise the original order could not have been passed by this court, according to the applicants-respondents. The Assistant Secretary to the Govt. of West Bengal, by an office order dated 2nd July, 1997, directed the Corporation not to make any recruitment for the best interest of effective management and economic discipline. 7. On 11th January, 2000, the Joint Secretary of the Development & Planning Department of the Govt. of West Bengal, directed the Corporation not to go for any type of recruitment in the Corporation until further instruction. Therefore, it is clear evident that the Corporation was restrained by the Government from giving any appointment. Therefore, the writ petition in which a direction for consideration was made by a Bench of this court in respect of other candidates was dismissed by another Bench. 8. The learned counsel appearing on behalf of the writ petitioner contended before this court that under Article 124 of the Limitation Act, 30 days time are fixed for filing the review application from the date of passing the order. But the application for review is hopelessly barred due to delay of more than 150 days. No application for condonation of delay has been filed. No prayer for condonation of delay has been made by the applicants-respondents. But the application for review is hopelessly barred due to delay of more than 150 days. No application for condonation of delay has been filed. No prayer for condonation of delay has been made by the applicants-respondents. Moreover, the applicants-respondents appeared at the time of hearing of the writ petition and knew about the order dated 26th February, 2001. The review application is also defective in nature since no ground has been mentioned as per Order 47 Rule 3 of the Code of Civil Procedure which can also be applicable in the case of writ petition as per Rule 53 of the Writ Rule made by this court. 9. By filing this review application, in fact, the applicants-respondents wanted to reopen the original writ petition which cannot be sustainable in law. Since the application is not a review application in accordance with law, the application, at best, be treated as a miscellaneous application. Even to that extent, by a miscellaneous application disposed of writ proceeding cannot be reopened. Disposing an application and passing order ex parte stands on a different footing but that is the case hereunder. The order was passed on the basis of the submissions of both the parties. 10. The learned counsel for the applicants-respondents relied upon the judgments reported in 1997(2) C.H.N. 172 (Subhas Chandra Sarkar & Ors. vs. Nirmal Kumar Jana & Ors.) and AIR 1987 SC 943 (State of Uttar Pradesh vs. Brahim Datt Sharma & Anr.) According to me, ratio of both the judgments go against the applicants. Supreme Court held that disposed of writ proceeding cannot be reopened by means of a miscellaneous application. Following such judgment and others a Division Bench of this court also held that the Constitution does not provide for any power of review in a High Court while exercising its jurisdiction under Article 226. But in exercise of its inherent jurisdiction it may review its own decision. Further held that if a writ petition is disposed of and the proceedings are terminated the same cannot be reopened by filing a miscellaneous application. According to me, inherent jurisdiction can be sparingly used. But not in a case where both the parties were heard at length and an order was passed. Moreover purpose has to be understood from such application. The whole purpose is conducting the irregularity through the process of court which cannot be allowed. According to me, inherent jurisdiction can be sparingly used. But not in a case where both the parties were heard at length and an order was passed. Moreover purpose has to be understood from such application. The whole purpose is conducting the irregularity through the process of court which cannot be allowed. It is also held by a Bench of Delhi High Court that once the matter is disposed of upon hearing the parties, the decision cannot be upset by filing a review application. The reported judgment to that extent is AIR 1993 Delhi 134 (Chiyoda Corporation vs. National Fertiliser Ltd. & Anr.). The Calcutta High Court has also taken the view in a judgment reported in AIR 1996 Cal.4 (Santi Kr. Jain & Ors. vs. Anil Kr. Datta) that the review application shall not be opened if the judgment is erroneous on merit. 11. Therefore, under no stretch of imagination, the review can be sustained. The order impugned itself does not suffer from any error apparent on the face of the record nor there is any sufficient reason which warrants interference by way of review. Therefore, such application is to be dismissed with exemplary cost. 12. According to me, even upon opening the application for review, I do not find any ground. Whatever points they have taken now for the purpose of filing of the application of review have already been considered by this court. It appears to me that the application for review is nothing but a tactical approach of the applicants-respondents to avoid the legal complication including contempt and payment of exemplary cost. The order was passed on merit and on the basis of the submissions made by the parties. Whether the records were available at the material point of time or not is immaterial at this stage since the learned counsel appearing for applicants respondents had already made his arguments before this court at the time of hearing of the writ petition on the basis of available records and/or as per instruction. It is crystal clear form this application that the real intention is not only to by-pass the order passed by this court as on 26th February, 2001 but also to frustrate the original order passed by a Bench of this court in an erstwhile writ petition on 17th March, 1992. Such effort cannot be allowed to be encouraged. It is crystal clear form this application that the real intention is not only to by-pass the order passed by this court as on 26th February, 2001 but also to frustrate the original order passed by a Bench of this court in an erstwhile writ petition on 17th March, 1992. Such effort cannot be allowed to be encouraged. Therefore, so-called review application cannot be allowed. Hence the same stands dismissed. The authority concerned is bound to carry .out both the orders as above. 13. There will be no order as to costs. Review application stands dismissed.