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2006 DIGILAW 720 (GUJ)

NARENDRA KUMAR KHIMJIBHAI RATHOD v. COMMISSIONER

2006-11-13

H.K.RATHOD

body2006
H. K. RATHOD, J. ( 1 ) HEARD learned Advocate Mr. Tolia for petitioner and Mr. Dabhi, learned AGP for Respondents. In this petition, the petitioner has challenged order dated 6. 9. 2006 passed by the Gujarat Higher secondary School Services Tribunal in application No. 262 of 2004 along with order dated 15. 12. 2004 passed by respondent No. 4. ( 2 ) LEARNED Advocate Mr. Tolia for the petitioner has relied upon page 59, an order dated 30th June, 2006, wherein respondent School Management has declared surplus one Mr. LK Solanki who was appointed on 28. 8. 1989. Said order at page 59 dated 30" June, 2006 was passed by the district Educaton Officer, Rajkot. Relying upon the aforesaid order, learned Advocate mr Tolia submitted that the aforesaid order dated 30. 6. 2006 was placed on record before the Tribunal and in support, submissions were also made by the Advocate appearing for the petitioner before the Tribunal that said Mr. Solanki is junior to petitioner and yet, he has been declared surplus subsequently by order dated 30. 6. 2006 and, therefore, order of declaring surplus is bad. ( 3 ) I have considered the submissions made by the learned Advocate Mr. Tolia while perusing order dated 6th September, 2006 passed by the Tribunal. Nowhere this order dated 30. 6. 2006 is referred to and no such discussion has been made in the said order. There is no such submission made which is being reflected in the order in question passed by the Tribunal. ( 4 ) IN view of this factual aspect, if the petitioner is having any grievance against the tribunal that though relevant document was produced on record and submissions to that effect were made by the Advocate for the petitioner before the Tribunal and yet such submissions and document has not been considered by the Tribunal, then, in such circumstances, remedy available to the petitioner is to approach the said Tribunal by filing proper application for review/ clarification. Instead of that, petitioner has filed this petition challenging order dated 6. 9. 2006 passed by Tribunal. ( 5 ) IN STATE OF MAHARASHTRA v/s. RAMDAS SHRINIVAS NAYAK AND another REPORTED IN AIR 1982 SC 1249 = 1982 CRI. LJ 1581, this aspect has been considered by the Hon ble apex court. Instead of that, petitioner has filed this petition challenging order dated 6. 9. 2006 passed by Tribunal. ( 5 ) IN STATE OF MAHARASHTRA v/s. RAMDAS SHRINIVAS NAYAK AND another REPORTED IN AIR 1982 SC 1249 = 1982 CRI. LJ 1581, this aspect has been considered by the Hon ble apex court. Relevant discussion made by the Hon ble apex court in para 4 and 7 is reproduced as under: 4. When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri a. K. Sen, who appeared for the State of maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submission made by him in the high Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us Judicial decorum restrains us. Matters of Judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "judgments cannot be treated as mere counters in the game of litigation". (Per lord ATKINSON IN SOMASUNDARAN v/s. SUBRAMANIAN, AIR 1926 PC 136 ). We are bound to accept the statement of the judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still, fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per LORD BUCKMASTER in MADHUSUDAN V/s. CHANDRABATI, air 1917 PC 30 ). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment. 4-A. In R. V/s. MELLOR (1858) 7 cox CC 454 Martin B was reported to have said : "we must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity. " 7. So the Judges record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the judge, himself, but nowhere else. ( 6 ) APEX court has thus observed that we must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity. It was further observed that so the Judges record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge, himself, but nowhere else. 5. Apex court has considered this aspect again in the matter of DAMAN singh AND OTHERS ETC. V/s. STATE OF punjab AND OTHERS, ETC. It was further observed that so the Judges record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge, himself, but nowhere else. 5. Apex court has considered this aspect again in the matter of DAMAN singh AND OTHERS ETC. V/s. STATE OF punjab AND OTHERS, ETC. REPORTED in AIR 1985 SC 973 . Relevant discussion made in paragraph 13 is reproduced as under:"13. The final submission of Shri ramamurthi was that several other questions were raised in the writ petition before the high Court but they were not considered. We attach no significance, to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc. , but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable, No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the Court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not to be. wasted in enquiring into the question whether a certain ground to which no reference is found, in, the judgment of the subordinate court was argued before that court or not?"6. Thus, considering the final submission of Shri Ramamurthi which was to the effect that several other questions were raised in the writ petition before the high Court but they were not considered, apex court has observed that "we attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc. , but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable, No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. , but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable, No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the Court making the order to it by filing a, proper application for review or clarification. The time of the superior courts is not to be. wasted in enquiring into the question whether a certain ground to which no reference is found, in, the judgment of the subordinate court was argued before that court or not?" [emphasis supplied]. ( 7 ) IN view of the observations made by the apex court in aforesaid two decisions on this aspect, this petition is not entertained by this court only on that ground. It will, however, be open for the petitioner to approach the said Tribunal for review and/or clarification on this aspect. In this view of the matter, this petition is not entertained by this court and accordingly, it is dismissed without expressing any opinion on merits of the matter.