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2005 DIGILAW 716 (GAU)

Chairman, JEE IIT v. Gurujit Bhardwaj

2005-09-23

BROJENDRA PRASAD KATAKEY

body2005
ORDER B.P. Katakey, J. 1. By this review petition, the review petitioner has sought to review the order dated 25-4-2005, passed in W.P.(C) No. 2475 of 2005 recording the concession given by the learned Counsel for the respondent No. 2 (review petitioner) and disposing of the writ petition with an observation that the I.I.T. authority may declare the result of the writ petitioner (respondent herein) and other similarly placed persons in accordance with their time schedule, on the basis of the concession made by the learned Counsel appearing on behalf of the I.I.T. authority. 2. The facts in brief is that a writ petition was filed by Shri Gurujeet Bharadwaj, respondent in the review petition, praying for issuing a direction to the respondents therein, more particularly, against the respondent No. 2, namely, the Chairman, JEE, IFF, Guwahati to issue admit card by accepting the photo copy of the application form, Original of which was sent by the writ petitioner by post, for appearing in the I.I.T. Joint Entrance examination for the session 2005-2006 scheduled to be held on 10-4-2005. An interim prayer was also made for directing the respondents authority to issue admit card and for allowing him to sit in the I.I.T. Joint Entrance Examination for the said session scheduled to be held on 10-4-2005. The said writ petition was filed by the writ petitioner contending that the writ petitioner, who was pursuing his studies in Narayan IIT Academy, Kota, Rajasthan, to prepare himself for the said joint entrance examination, sent the duly filled up application form to the respondent No. 2 in the writ petition, pursuant to advertisement issued in that respect, by Speed Post Service on 21-12-2004 as the last date of submission of form was 7-1-2005. But, when the petitioner did not get the admit card to be issued by the said authority to enable him to appear in the said Joint entrance examination, he enquired at the IIT, Guwahati Office, who has informed him that the respondent authority has not received the application form. Thereafter, the petitioner made an enquiry in the Head Post office at Kota from, where he sent the application by speed post service on 21-12-2004, and on enquiry he was informed by the Postal authority that the said speed post document was sent to the addressee but could not give confirmation about the delivery of the same to the addressee. Thereafter, the petitioner made an enquiry in the Head Post office at Kota from, where he sent the application by speed post service on 21-12-2004, and on enquiry he was informed by the Postal authority that the said speed post document was sent to the addressee but could not give confirmation about the delivery of the same to the addressee. The petitioner, thereafter, on 25-3-2005 filed a representation before the respondent authority intimating the entire fact and requesting them to allow him to sit in the examination by issuing admit card by enclosing there with the postal receipt as well as photo copy of the application filed by him before the postal authority at Kota. As no action was taken by the IIT authority of the representation submitted by the petitioner, he filed the W.P.(C) No. 2475 of 2005. The said writ petition came up for consideration before the Court for the first time on 1-4-2005, on which date this Court upon hearing the learned Counsel for the petitioner as well as the learned Assistant S.G. appearing on behalf of the respondents Nos. 1 & 3 therein, namely, the Union of India represented by Ministry of Human Resources and Development and the Head Post Master, Business Post Center, Kota, Rajasthan, issued a notice of motion making the same returnable on 25-4-2005 and directing the writ petitioner to take steps for service of notice on the respondent No. 2, namely, the Chairman, IIT, JEE, North Guwahati, Guwahati by registered post with A.D. as well as personal service. Keeping in view the academic interest of the writ petitioner, an interim order was also passed directing the Chairman, JEE, IIT, Guwahati to issue a provisional admit card to the petitioner on the basis of the photo copy of the application form annexed as Annexure-B to the writ petition and to allow the writ petitioner to appear in the Joint Entrance examination to be held on 10-4-2005, however, it was directed that the authority shall not declare the result of the writ petitioner. Accordingly, the provisional admit card was issued by the Respondent No. 2 authority (review petitioner herein) allowing the writ petitioner to appear in the said Joint Entrance examination i.e. screening test to be held on 10-4-2005, accordingly, the writ petitioner appeared in the said screening test. Accordingly, the provisional admit card was issued by the Respondent No. 2 authority (review petitioner herein) allowing the writ petitioner to appear in the said Joint Entrance examination i.e. screening test to be held on 10-4-2005, accordingly, the writ petitioner appeared in the said screening test. The respondent No. 2 authority (review petitioner) thereafter, filed an affidavit in opposition before tills Court contending that the writ petitioner was informed vide letter dated 4-4-2005 expressing their inability to allow him to take the examination by issuing an admit card for Joint Entrance Examination 2005 on the ground that they do not have the norms to do so as they cannot accept the the responsibility for any postal delay or irregularity or loss of application in postal transit. While the case was again listed for consideration on 25-4-2005, this Court upon hearing the learned Counsel for the writ petitioner as well as the learned Counsel Mr. Apurba Kumar Sharma appearing on behalf of the respondent No. 2 and Mr. H. Rahaman, Asstt. S.G. appearing on behalf of the respondents Nos. 1 & 3 disposed of the said writ petition with an observation that the IIT authority may declare the result of the petitioner and other similarly placed persons in accordance with their time schedule on the basis of the concession made by Mr. Sharma learned Counsel appearing on behalf of the respondent No. 2 (review petitioner) to the effect that in view of the order dated 1-4-2005 directing the respondent authority not to declare the result of the writ petitioner, the respondent No. 2 is not in a position to declare the result, which the respondent No. 2 has decided to declare, subject to the permission of this Court. The respondent No. 2 (review petitioner) thereafter, has filed the present review petition seeking review of the said order dated 25-4-2005 on the ground that no such concession was made by the learned Counsel appearing on his behalf and the submission made by the learned Counsel was incorrectly recorded in the said order, however, without contending therein that the respondent No. 2 (review petitioner) never at any point of time instructed the learned Counsel, appearing on his behalf, to make any such concession as recorded in the order dated 25-4-2005 or the concession made by the learned Counsel does not bind the review petitioner. 3. I have heard Mr. 3. I have heard Mr. N. Dutta, learned senior counsel assisted by Mr. A.K. Sharma, learned Counsel appearing on behalf of the review petitioner and Mr. H. Roy, learned Senior counsel assisted by Mr. P.P. Baruah, learned Counsel for the respondent in the review petition, who was the writ petitioner in W.P. (C) No. 2475 of 2005. 4. Mr. Dutta, learned senior counsel has submitted that no concession was made by the learned Counsel for the review petitioner, who was the respondent No. 2 in the writ petition. The fact that no concession was made by the learned Counsel is also apparent from the statement attributed to the learned Counsel for the review petitioner to the effect that the review petitioner wanted to declare the result of other similarly placed persons, as there was no other similarly placed persons involved. According to the learned senior counsel, since no concession was made by the learned Counsel, the order passed on 25-4-2005 recording such concession needs to be reviewed. The further submission of learned senior counsel is that even if such concession was made by the learned Counsel the said concession will not bind the review petitioner as the review petitioner never instructed the learned Counsel to give such concession. Learned senior counsel in support of his contention has placed reliance on the decision of the Hon'ble Supreme Court in Nedunuri Kameswar-amma v. Sampati Subba Rao, reported in [1963] 2 SCR 208, The Government of Tamil Nadu v. Badrinath : (1988) I LLJ 23 SC; State of Maharashtra v. Ramdas Shrinivas Nayak : 1982 CriLJ 1581; Periyar and Pareekanni Rubbers Ltd. v. State of Kerala : AIR 1990 SC 2192 ; Tripura Goods Transport Association v. Commissioner of Taxes : AIR 1998 SC 466 ; B.S. Bajwa v. State of Punjab : AIR 1999 SC 1510 and K.I. Pavunny v. Assistant Collector of (HQ) Central Excise Collectorate, Cochin) : 1997 (90) ELT 241 (SC). 5. Mr. H. Roy, learned senior counsel appearing on behalf of the respondent in the review petition, who was the writ petitioner in W.P. (C) No. 2475 of 2005, on the other hand has contended that the order dated 24-5-2005, which is now sought to be reviewed by the review petitioner by filing the present review petition, was dictated in open Court and in presence of the learned Counsel for the review petitioner Mr. A.K. Sharma, who was the counsel for the respondent No. 2 in the writ petition and he never objected to recording his concession, which goes to show that the concession was made by the learned Counsel on behalf of the respondent No. 2, (review petitioner) and such concession definitely binds the review petitioner. According to the learned senior counsel, the review petitioner cannot be subsequently allowed to assail the order on the ground that no such concession was made by the learned Counsel. Mr. Roy, learned senior counsel has further contended that the review petitioner in the review petition has not stated that the learned Counsel was not authorized to make such concession or he was not instructed to give such concession but what has been stated by the review petitioner in the review petition is that no such concession was made by the learned Counsel for the review petitioner. According to the learned senior counsel, it is not a fit case for review of the order and therefore the review petition deserves to be dismissed. Mr. Roy, in support of his contention has placed reliance on the decision of the Apex Court in Bank of Bihar v. Mahabir Lal. 6. I have considered the submissions of the learned Counsel for the parties and also perused the records of W.P. (C) 2475 of 2005 as well as the records of the present review petition No. 48 of 2005. 7. The writ petition No. 2475 of 2005 was filed by the respondent in the review petition, praying for the following reliefs : It is therefore, most respectfully prayed that Your Lordships would graciously be pleased to admit this petition, and issue a Rule calling upon the respondents to show cause as to why a writ in the nature of mandamus and/or Certiorari and/or any other appropriate order or direction should not be issued directing the respondents more particularly respondent No. 2 to issue admit card by accepting the photocopy of the application form which was sent by the petitioner for appearing in the IIT Entrance Examination to enable the petitioner to appear in the IIT JEE Entrance Examination of the session 2005-2006 scheduled to be held on 10-4-2005 and/or may be pleased to pass any such other order or orders as Your Lordship may deem fit and proper. AND Pending disposal of this application it is most respectfully prayed that Your Lordships would be graciously pleased to direct the respondent authority to issue the admit card to the petitioner by accepting the photocopy of the application form which was sent by the petitioner through Speed Post for appearing in the IIT Entrance Examination for the session 2005-2006 scheduled to be held on 10-4-2005 and/or may be pleased to pass any such other order or orders as your Lordship may deem fit and proper. And for this act of your kindness, your petitioner as in duty bound shall ever pray. 8. The said writ petition was filed stating, inter alia, that the writ petitioner sent the duly filled up application form for appearance in the screening test to be held on 10-4-2005, by speed post service on 21-12-2004, but the same was not delivered to the review petitioner who was the respondent No. 2. The petitioner upon enquiry came to know about of non delivery of the said application sent by speed post service and requested the respondent review petitioner to allow him to sit in the screening test to be held on 10-4-2005, but that was not allowed and therefore the writ petition was filed praying for the aforesaid relief. This Court at the initial stage vide order dated 1-4-2005 directed the review petitioner to issue provisional admit card and to allow him to appear in the screening test and, accordingly provisional admit card was issued and the writ petitioner was allowed to sit in the screening test held on 10-4-2005 but the result was not declared in view of the order dated 1-4-2005 directing the review petitioner not to declare the result of the writ petitioner. Thereafter, affidavit-in-opposition has been filed by the review petitioner, who was the respondent No. 2 in the writ petition, to the effect that the petitioner cannot be allowed to sit in the examination, as there is no provision for allowing him to do so. However, facts remain that the writ petitioner was allowed to sit in the screening test held on 10-4-2005 in terms of the interim order passed by this Court on 1-4-2005. 9. The said writ petition came up again for consideration on 25-4-2005, on which date this Court, upon hearing the learned Counsel for the writ petitioner, learned Counsel Mr. However, facts remain that the writ petitioner was allowed to sit in the screening test held on 10-4-2005 in terms of the interim order passed by this Court on 1-4-2005. 9. The said writ petition came up again for consideration on 25-4-2005, on which date this Court, upon hearing the learned Counsel for the writ petitioner, learned Counsel Mr. A.K. Sharma, appearing on behalf of the review petitioner as well as Mr. H. Rahaman, learned Assistant S.G. appearing on behalf of the respondent Nos. 1 & 3 in the writ petition, passed the order dated 25-4-2005 observing that the I.I.T. Authority may declare the result of the writ petitioner and other similarly placed persons on the basis of the concession made by Mr. A.K. Sharma, learned Counsel appearing on behalf of the review petitioner, who was the respondent No. 2 in the writ petition. The said order was dictated in open Court and in presence of the learned Counsel for the parties. The learned Counsel appearing on behalf of the review petitioner who was present while dictating the order ever objected while recording the concession made by him. The order passed on 25-4-2005 is quoted below: Heard Mr. H. Roy, learned senior counsel assisted by Mr. R. Bezbaruah, learned Counsel for the petitioner, Mr. A.K. Sharma, learned Counsel appearing on behalf of the respondent No. 2 and also Mr. H. Rahaman, learned Asstt. Solicitor General appearing on behalf of respondents Nos. 1 and 3. Mr. A.K. Sharma, learned Counsel for the respondent No. 2 submits that pursuant to the order passed by this Court on 1-4-05, the writ petitioner was allowed to appear in the Joint Entrance Examination (JEE) along with other similarly situated candidates whose applications were not received by the authority despite being posted well ahead of time. Mr. Sharma, learned Counsel for the respondent No. 2 further submits that in fact Manager, Speed Post, Guwahati vide letter dated 5-4-05 informed the Chairman, IIT that the speed post articles sent by the petitioner was not traceable at speed post center, Guwahati. The Antiauthority, Guwahati keeping in view the entire matter has allowed the petitioner and other similarly situated persons to appear in the test. Accordingly, they have appeared and the result is scheduled to be declared on 28-4-05. Mr. The Antiauthority, Guwahati keeping in view the entire matter has allowed the petitioner and other similarly situated persons to appear in the test. Accordingly, they have appeared and the result is scheduled to be declared on 28-4-05. Mr. Sharma learned Counsel for the respondent has submitted that in view of the order dated 1-4-05 directing the authority not to declare the result of the petitioner, the respondent No. 2 is not in a position to declare the result, which the respondent No. 2 has decided to declare, subject to the permission from this Court. In view of the aforesaid submissions made by the learned Counsel for the respondent No. 2 to the effect that IIT authority wants to declare the result of the petitioner and other similarly placed persons, I dispose of the present writ petition with an observation that the IIT authority may declare the result of the petitioner and other similarly placed persons in accordance with their time schedule. The writ petition is disposed of. 10. The contention of the learned senior counsel appearing on behalf of the review petitioner is that no such concession was made by the learned Counsel Mr. A.K. Sharma, who appeared for the respondent No. 2 in the said writ petition and has filed the present review petition, as the counsel for the review petitioner. It has further been contended that in the order dated 25-4-2005 this Court has recorded incorrectly the submission made by the learned Counsel Mr. Sharma. The said contention of the learned Counsel for the review petitioner cannot be accepted as the said order dated 25-4-2005 was dictated in open Court and in presence of Mr. Sharma, but Mr. Sharma never at any point of time objected in recording the concession made by him while passing the order dated 25-4-2005. The contention of the review petitioner that no such concession was made by the learned Counsel and his submission was incorrectly recorded in the order dated 25-4-2005 is nothing but an after-thought and the said submission cannot be accepted and hence rejected as had that concession been not made by the learned Counsel and had his submission been recorded by the Court wrongly or incorrectly, he would have immediately point out the same, to the Court, which has not been done by Mr. Sharma, learned Counsel appearing on behalf of the respondent No. 2. 11. Sharma, learned Counsel appearing on behalf of the respondent No. 2. 11. The Apex Court in Bank of Bihar v. Mahabir Lal (supra) has held that where a statement appears in the judgment of a Court that a particular thing happened or did not happen before it, it ought not ordinarily be permitted to be challenged by a party unless of course both the parties to the litigation agree that the statement is wrong, or the Court itself admits that the statement is erroneous. It has further been held that if a judgment was pronounced or if the judgment was read out in the Court, immediately the attention of the Court to the error in the judgment should be drawn. As observed above, though the order was dictated in open Court in presence of the learned Counsel for the review petitioner, the learned Counsel never objected to the recording of his concession and in passing the order on the basis of such concession made by the learned Counsel and, therefore the concession made by the learned Counsel was rightly recorded in the order dated 25-4-2005. The record of the proceeding made by the Court is sacrosanct, the correctness thereof cannot be doubted merely for asking. 12. The learned Counsel Mr. Apurba Kumar Sharma, who was the counsel for the review petitioner in the writ petition and who filed the review petition, in his affidavit dated 15-6-2005 has stated that the order dated 25-4-2005 reflects a communication gap between the learned Counsel and the Court and the learned Counsel failed to communicate his submission to the Court in a clear manner as a result of which the order was passed. The said statement made by the learned Counsel in the said affidavit also not believable because of the fact that in the review petition filed on 2-5-2005 that stand was not taken and also had that been the position the learned Counsel could have immediately point out to the Court to the effect that no such concession was made by the learned Counsel appearing on behalf of the review petitioner, while dictating the order dated 25-4-2005 in open Court and in his presence. 13. 13. The review petitioner in the review petition has basically sought to review the order dated 25-4-2005 on the ground that no concession has been made by the learned Counsel, though the learned senior counsel appearing" on behalf of the respondent/review petitioner during the course of his argument submits that even if such concession was made, that will not bind the review petitioner. The learned Counsel in support of his contention has placed reliance on Periyar and Pareekanni Rubber Ltd. : AIR 1990 SC 2192 (supra), Tripura Goods Transport. : AIR1998SC465 (supra), B.S. Bajwa : AIR 1999 SC 1510 (supra), Govt. of Tamil Nadu v. Badrinath : (1988) I LLJ 23 SC (supra) Nedunuri Kameswaramah : [1963] 2 SCR 208 (supra). In those cases, the Apex Court has held that the concession made by the learned Government Advocate does not bind the Government unless such concession is given by Government in writing and even the concession given by the Advocate General or Additional Advocate General, on a matter of law, is not binding. In the instant case, as held above, the concession was made by the learned Counsel appearing on behalf of the review petitioner, who was the respondent No. 2 in the writ petition, who did not object while recording his concession in open Court in the order dated 25-4-2005. It is not the case of the review petitioner that the learned Counsel was not authorized to make such concession. Further it appears from the statements made in the review petition that no such plea that-even if concession was made by the learned Counsel, that, will not bind the review petitioner, has been taken. The decisions of the Apex Court cited by the learned senior counsel for the review petitioner are not applicable in the present case as the said decisions relates to the concession made by the learned Counsel on the point of law and also on the ground that the decisions were rendered on the facts of those cases. In the instant case, the concession made by the learned Counsel was not on the point of law. In the instant case, the concession made by the learned Counsel was not on the point of law. Moreover, the review petitioner, having engaged the counsel by executing the vakalatnama is bound by the concession made by the counsel, as the learned Counsel, by virtue of the power given to him by means of vakalatnama, can make concession on behalf of the party, except on the point of law and it. is also not the case of the review petitioner that the learned Counsel was not authorized to makes such concession. 14. Learned senior counsel has also referred to the decision of the Apex Court In State of Maharashtra v. Ramdas Shrinivas Nayak : 1982 CriLJ 1581 (supra) wherein the Apex Court has laid down the manner in which a statement recorded in a judgment passed by a Court can be sought to be reviewed, if such statement was recorded wrongly in the judgment. There is no dispute on that legal proposition. The review petitioner has filed the review petition on 2-5-2005, contending that the submission of the learned Counsel was incorrectly recorded, but this Court has held above, that the same was correctly recorded and there is no question of incorrect recording of the submission made by the learned Counsel for the review petitioner in order dated 25-4-2005. learned Counsel Mr. Apurba Kumar Sharma, after more than one month filed an affidavit on 15-6-2005 stating that there was a communication gap between him and the Court. This Court for the reasons recorded above is not inclined to accept the statement made by the learned Counsel in the said affidavit dated 15-6-2005. 15. Learned senior counsel Mr. Dutta, has also placed reliance in K.I. Pavunny : 1997(90)ELT241(SC) (supra) wherein it has been held that the wrong concession, in particular on a question of law, does not bind the Court. In the said case observations were also made by the Apex Court against the learned Counsel appearing in that case for the Union of India. There is no dispute that a wrong concession on question of law does not bind the Court. In the said case observations were also made by the Apex Court against the learned Counsel appearing in that case for the Union of India. There is no dispute that a wrong concession on question of law does not bind the Court. In the instant case, the concession made was not on the question of law but on the fact, that is, the learned Counsel has contended that the review petitioner was ready to declare the result of the writ petitioner but could not do so because of interim order dated 1-4-2005. Moreover, it is not the case of the review petitioner that the learned Counsel was never instructed to make such submission before the Court while passing the order dated 25-4-2005. Apex Court in Nagar Mahapalika (supra) on the basis of facts and circumstances of the said case had observed that as the order was passed on the basis of the concession made by the learned Counsel, Nagar Mahapalika cannot get out of the concession made by the respective counsel at the appropriate stage. Such concession was made on' facts and not on law and, therefore, the concession was made by the learned Counsel on facts will bind the review petitioner also. 16. There is nothing under Article 226 of the Constitution of India to preclude the 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, but there are definite limits to the exercise of the power of reviews, which can be exercised on discovery of new and important matters or evidence which, even after 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 or where there are some mistake or error apparent on the face of the record. Such power of review may also be exercised on any analogous ground. In the instant case, as held above, the concession was made by the learned Counsel appearing on behalf of the review petitioner, which has correctly been recorded in the order dated 25-4-2005. Such power of review may also be exercised on any analogous ground. In the instant case, as held above, the concession was made by the learned Counsel appearing on behalf of the review petitioner, which has correctly been recorded in the order dated 25-4-2005. The grounds seeking review being that no such submission was made or the submission was not correctly recorded, the same having already been rejected for the reasons stated above, I do not find any ground to review the order dated 24-5-2005 passed by this Court. 17. In view of the above, the review petition filed by the review petitioner has no merit and hence the same is rejected.