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2008 DIGILAW 812 (GAU)

Prafulla Dev Sarma v. State of Assam

2008-11-25

AMITAVA ROY

body2008
JUDGMENT Amitava Roy, J. 1. A review and/or modification of the judgment and order dated 25.7.2006 passed in WP(C) No. 4165/2001 dismissing the writ petition is sought for by the instant application. 2. I have heard Mr. N. Dutta, senior advocate assisted by Mr. J. Abedin, advocate for the review applicant/Petitioner, Mr. S.C. Biswas, learned Counsel for the Respondent Nos. 3 and 4 and Mr. M.U. Mahmud, learned Counsel for the Respondent No. 5. 3. The backdrop of the facts in brief, is indispensable for appropriate appreciation of the rival assertions. The Petitioner, who is a Post Graduate in Political Science applied for and was appointed as a Lecturer in the said subject in Mangaldai College ('the College') in the year 2000 on a purely temporary basis on a consolidated pay of Rs. 1,000 per month. The Principal of the institution on 7.2.2001 published an advertisement inviting applications from candidates having UGC norms amongst others for one post of Lecturer (Sanctioned) in Political Science having specialization in International Law/Public Administration. The Petitioner being eligible in terms of the qualifications set out in the advertisement offered his candidature and also appeared in the interview. According to him, he topped the list of the recommended candidates and while he was waiting in expectation for being appointed, an advertisement dated 30.5.2001 was published by the College in the local daily "Assam Tribune" freshly inviting applications for appointment to the post of Lecturer also for the post of Political Science for which the Petitioner had earlier applied. By this advertisement, however, the post was reserved for Scheduled Caste/Scheduled Tribe candidates only purportedly for the purpose of clearing the backlog vacancies meant for those categories of aspirants. The Petitioner being aggrieved assailed the latter advertisement which indicated in clear terms the cancellation of the earlier advertisement dated 7.2.2001 pursuant to which the Petitioner had participated in the consequential process. This Court by order dated 13.6.2001 while issuing Rule, directed the Respondents not to make any fresh appointment in terms of the impugned advertisement. The Governing Body of the College and its Principal impleaded as Respondent Nos. 3 and 4, in substance endorsed the subsequent advertisement to be valid having been issued in response to the directive contained in the letter No. G(B) Misc. The Governing Body of the College and its Principal impleaded as Respondent Nos. 3 and 4, in substance endorsed the subsequent advertisement to be valid having been issued in response to the directive contained in the letter No. G(B) Misc. 10/2001/1 dated 12.3.2001 of the Director of Higher Education, Assam requiring the Colleges referred to therein to clear the backlog in appointment of SC/ST candidates. According to the College authorities, the post of Lecturer in Political Science was a sanctioned one making it obligatory to be filled up bearing in mind the aspect of backlog of vacancies for the aforementioned reserved category candidates. According to them, the decision to re-advertise the post involved was taken by the Governing Body of the College in its meeting held on 1.4.2001 following the receipt of the letter dated 12.3.2001 of the Director of Higher Education, Assam ('the Director'). They asserted that though the impugned advertisement had been responded to by various eligible candidates, no steps could be taken in view of the interim restraint of this Court by its order dated 13.6.2001. As the matter rested at that, acting on the Office Memorandum dated 17.7.2004 issued by the government, the Governing Body of the College resolved in its meeting held on 2.4.2005 amongst others to convert the post of Lecturer in Political Science into that of Arabic for adjustment of the Respondent No. 5 who at the relevant time was a Lecturer in the latter department. However, due to the pendency of the writ petition, the Director forbore from approving the proposal. 4. The Respondent No. 5 in his counter while maintaining that he had been appointed as a Lecturer in the Department of Arabic of the College since 22.12.1999 claimed that having regard to his induction on the basis of the duly conducted selection therefor, he in terms of the Office Memorandum dated 17.7.2004 was eligible to be considered for appointment in terms thereof and accordingly the Governing Body of the College by its resolution dated 2.4.2005 decided to accommodate him against the vacant post of Lecturer in Political Science following the retirement of its earlier incumbent. The Respondent No. 5, however, admitted that though the Director approved the resolution dated 2.4.2005 on the same issue vis-a-vis other lecturers of the College in the teeth of the interim order of this Court, he was denied the identical relief. 5. The Respondent No. 5, however, admitted that though the Director approved the resolution dated 2.4.2005 on the same issue vis-a-vis other lecturers of the College in the teeth of the interim order of this Court, he was denied the identical relief. 5. After hearing the learned Counsel for the parties and on a consideration of the materials available including the Proceeding Books of the Governing Body of the College for the relevant period produced on behalf of the College, by the impugned judgment and order sought to be reviewed, the writ petition was dismissed. Noticing that in both the advertisements, one sanctioned post of lecturer in Political Science and one ad hoc post of Lecturer in Mathematics had been offered to be filled up, this Court rejected the plea of discrimination that the post of Lecturer in Political Science only had been picked up for handing out an unfair treatment to the Petitioner. This Court on a scrutiny of the resolution dated 1.4.2001 of the Governing Body of the College deciding to re-advertise the posts of Lecturer in Political Science and Mathematics in view of the existing backlog of vacancies determined for the SC/ST candidates, negated the challenge to the second advertisement to be illegal or arbitrary. The Petitioner's assertion for being appointed on the basis of his performance in the selection pursuant to the first advertisement was turned down in view of the decision of the Governing Body to re-advertise the post in conformity with the instructions contained in the letter of the Director dated 12.3.2001. While observing on a verification of the interview sheet of the first selection that he had been recommended to be the most suitable candidate, this Court recorded against his unassailable right to claim appointment on the basis thereof. The decision taken by the Governing Body of the College in its meetings held on 1.4.2001 and 24.5.2001 on the issue of re-advertising the posts of lecturer in Political Science and Mathematics pursuant to the Director's letter dated 12.3.2001 was sustained. The resolution of the Governing Body of the College to accommodate the Respondent No. 5 against the advertised post of Lecturer in Political Science in terms of the Office Memorandum dated 17.7.2004 was also upheld. In absence of any challenge thereto by the Petitioner, the petition in the above premise was dismissed. 6. The resolution of the Governing Body of the College to accommodate the Respondent No. 5 against the advertised post of Lecturer in Political Science in terms of the Office Memorandum dated 17.7.2004 was also upheld. In absence of any challenge thereto by the Petitioner, the petition in the above premise was dismissed. 6. The review applicant while pleading that the letter dated 12.3.2001 of the Director and the instructions contained therein were applicable to new vacancies has also asserted that no prior approval had been obtained from the State authorities as contemplated before the issuance of the second advertisement. According to the review Petitioner, roster register also had not been submitted. He has reiterated his claim of having topped the list of recommended candidates for the post of Political Science in the selection relatable to the first advertisement dated 7.2.2001. It has been averred that the resolution dated 2.4.2005 deciding to accommodate the Respondent No. 5 against the post of lecturer in Political Science is in transgression of the Office Memorandum dated 17.7.2004 and in particular in violation of the interim order dated 13.6.2001 of this Court. 7. The review applicant has maintained that though the College had issued the second advertisement dated 30.5.2001 representing cancellation of the earlier advertisement dated 7.2.2001, thus, implying the abandonment of the earlier selection process undertaken, in terms of the resolution Nos. 15 and 16 dated 2.4.2005, however, the Governing Body resolved to appoint one Ms. Kunjalata Baruah who had appeared in the interview pursuant to the first advertisement as a lecturer in Mathematics. He has, thus, reiterated the plea of discrimination. Contending that he had come to learn about the appointment of Ms. Kunjalata Baruah only after delivery of the judgment and order sought to be reviewed, the imputation of suppression of facts has been levelled against the College authorities. On the decision of the conversion of the post of lecturer in Political Science to Arabic, the review applicant has impeached the said move to be transgressive of the Office Memorandum dated 17.7.2004, the College authorities not having taken the consent of the Head of the Department of the Political Science for withdrawing a post therefrom to accommodate the Respondent No. 5. According to the review applicant, the appointment of the said Respondent as a lecturer in the Department of Arabic in the College, has in the meantime been set aside by the order of this Court on 26.4.2006 passed in WP(C) No. 920/2000 (Abu Bakkar Siddique v. State of Assam and Ors.) wherein the said Respondent was impleaded as Respondent No. 5. The review applicant has further averred that the writ Petitioner in WP(C) No. 920/2000 had thereafter intimated the Principal of the College about the out come of the said proceeding on 18.5.2006 by submitting a copy of the judgment and order dated 26.4.2006. The review applicant has asserted that in spite thereof, the Respondent No. 4, the Principal of the College did not disclose the said fact in his additional affidavit filed on 14.6.2006 in this proceeding [WP(C) No. 4165/2001]. 8. By an additional affidavit, the review applicant has brought on record the order dated 14.9.2007 passed in Misc. Case Nos. 2896/07 and 2898/2007 whereby the application of the Respondent No. 5 for setting aside the judgment and order dated 26.4.2006 passed in WP(C) No. 920/2000 had been rejected. The order dated 7.4.2008 passed by the Division Bench of this Court in Misc. Case No. 771/08 arising out of Writ Appeal No. 406/07 preferred by the said Respondent, dismissing the challenge to the order dated 14.9.2007 has also been produced. 9. The Respondent Nos. 3 and 4 in their affidavit while emphasizing that no ground of review and/or reconsideration of the judgment and order dated 25.7.2006 exists, have disclosed that following the said decision, the Director by his order dated 19.10.2006 has approved the appointment of the Respondent No. 5 against the converted post of Lecturer in Arabic. They have reiterated their stand vis-a-vis the impugned advertisement dated 30.5.2001 and have asserted against any inviolable right of the Petitioner to claim appointment on the basis of his performance in the selection process pertaining to the first advertisement. While omitting to categorically controvert the Petitioner's averment of appointment of Ms. Kunjalata Baruah as a lecturer in Mathematics, pursuant to the Governing Body's resolution Nos. 15 and 16 dated 2.4.2005, pursuant to the selection following the first advertisement and that she was not a SC or ST candidate, the answering Respondents have sought to seek refuge in the adjudication made in the writ proceeding. Kunjalata Baruah as a lecturer in Mathematics, pursuant to the Governing Body's resolution Nos. 15 and 16 dated 2.4.2005, pursuant to the selection following the first advertisement and that she was not a SC or ST candidate, the answering Respondents have sought to seek refuge in the adjudication made in the writ proceeding. The College authorities have endeavoured to endorse the decision to convert the post of lecturer in Political Science to that of Arabic on the ground of insufficiency of post in the latter department necessitating the same. They, however, remained contended to rely on the records in response to the averment appertaining to the annulment of the appointment of the Respondent No. 5 by this Court in WP(C) No. 920/2000 by its verdict dated 26.4.2006. The Respondent No. 5, however, abstained from filing any counter. 10. In the above state of pleadings, Mr. Dutta has persuasively argued that the first advertisement obviously not having been totally abandoned as was sought to be represented by the College in the earlier round of litigation, the review Petitioner is entitled to have his case considered for appointment to the post of lecturer in Political Science, he being adjudged to be the most suitable candidate therefor. As admittedly, no candidate has been available in the process initiated on the basis of the second advertisement, in absence of any cogent and convincing reason to explain the stand of the college as is evident from the resolution dated 2.4.2005 vis-a-vis Ms. Kunjalata Baruah, the judgment and order dated 25.7.2006 ought to be reviewed in the interest of justice. While contending that the challenge to the resolution dated 2.4.2005 to convert the post of lecturer in Political Science to that of Arabic was inessential, the same having been not given effect to in face of the interim order of this Court, the learned senior counsel underlined that in any view of the matter, the appointment of the Respondent No. 5 having been adjudged to be illegal by this Court, the said resolution and all steps consequential thereto have been rendered non est. Mr. Dutta has urged that the facts relating to the appointment of Ms. Mr. Dutta has urged that the facts relating to the appointment of Ms. Kunjalata Baruah as a lecturer in Mathematics pursuant to the first selection and the annulment of the appointment of the Respondent No. 5 having been withheld by the College, it is imperative that the judgment and order dated 25.7.2006 be appropriately reviewed to prevent the abuse of the process of the court. 11. Mr. Biswas, in reply has argued that as all relevant aspects of the list had been considered, analyzed and dealt with by this Court in the writ proceeding, no review and/or reconsideration of the judgment and order dated 25.7.2006 is called for on the grounds now urged. 12. Mr. Mahmud while abiding by the above stand of the College has insisted that as the assertions made in the review application do not constitute any ground cognizable in law for review of a judgment of a court, the same by no means ought to be entertained lest the instant adjudication partakes the complexion of an appeal in disguise. The learned Counsel maintained that this Court having recorded its verdict in the writ proceeding upon an elaborate consideration of all relevant aspects, it ought not travel beyond the existing pleadings and undertake an exercise of scrutinizing the same anew conjointly with the additional facts now proffered. The endeavour made on behalf of the review applicant being wholly antithetical to the concept of finality of judicial adjudication, the review application ought to be dismissed in limine, he urged. Mr. Mahmud to buttress his arguments placed reliance on the following decisions of the Apex Court: (i) Haridas Das v. Usha Rani Banik (Smt.) and Ors., (2006) 4 SCC 78 ; (ii) M.P. Electricity Board v. Dev Narayan Patel (2005) 10 SCC 220 ; (iii) and of this Court in State of Tripura and Ors. v. Manabendra Das Chowdhury 2001 (2) GLJ 641; (iv) and also of Rajasthan High Court in Govind Poojara v. Mohan Lal and Ors. 1999 (2) C LJ 38; (v) N. Krishnaswamy Reddiar and Ors. v. Manickavasagam 1995 (2) CLJ 231 ; (vi) L Rs of Chand Mal v.L Rs of Dhanna Lal 1997 (3) C LJ 681. 13. I have bestowed my consideration to the competing pleadings and the arguments advanced. 1999 (2) C LJ 38; (v) N. Krishnaswamy Reddiar and Ors. v. Manickavasagam 1995 (2) CLJ 231 ; (vi) L Rs of Chand Mal v.L Rs of Dhanna Lal 1997 (3) C LJ 681. 13. I have bestowed my consideration to the competing pleadings and the arguments advanced. In the writ petition, as the same discloses, the review applicant, in addition to seeking the invalidation of the advertisement dated 30.5.2001 had also prayed for a direction to appoint him on the basis of the selection/interview held pursuant to the earlier advertisement dated 7.2.2001. He, therefore, insisted on the completion of the said exercise as a consequence of repudiation of the advertisement assailed. It is an admitted fact that the second advertisement did not yield any candidate to be appointed in terms thereof. Noticeably, according to the College authorities, in view of the impasse occasioned by the interim order dated 13.6.2001, steps pursuant thereto could not be furthered and that acting on the Office Memorandum dated 17.7.2004, posts of lecturers in various departments including that of Political Science were decided to be converted and the resolution dated 2.4.2005 to accommodate the Respondent No. 5 accordingly ensued. The aspect of appointment of Ms. Kunjalata Baruah as a lecturer in Mathematics did not surface for the scrutiny of this Court in the earlier round of debate. The Proceeding Book(s) of the Governing Body of the College though placed before this Court, the above fact was not brought to its notice. This assumes significance in view of categorical assertion of the review applicant that the said appointment has been made on the basis of her participation in the selection in connection with the first advertisement. Though the resolution Nos. 15 and 16 dated 2.4.2005 do not per se indicate the appointment of Ms. Kunjalata Baruah as a lecturer of Mathematics on the basis of the first advertisement, the College authorities have been inexplicably silent in this regard in their counter to the review application in this respect. Nothing is discernible from the Proceeding Book(s) as well (produced in course of the arguments of the review application). The fact that Ms. Baruah does not belong to SC/ST category also remain uncontroverted by the College. Nothing is discernible from the Proceeding Book(s) as well (produced in course of the arguments of the review application). The fact that Ms. Baruah does not belong to SC/ST category also remain uncontroverted by the College. Having regard to its persistent stand that the resolution dated 1.4.2001 deciding to advertise the posts of lecturer in Political Science and Mathematics had been in compliance of the letter dated 12.3.2001 of the Director to clear the backlog of vacancies of such reserved categories candidates, the appointment of Ms. Baruah as a Lecturer of Mathematics and absence of any reason to exclude the Petitioner from the consideration for an identical treatment in the opinion of this Court demonstrates an utter inconsistency in the action of the authorities of the institution involved. This disclosure has a definite bearing on the review applicant's prayer for his appointment as a lecturer in Political Science on the basis of his performance in the first selection. More importantly, the Petitioner's claim therefore in the writ petition had been rejected earlier on the premise that the first selection as represented by the College had been wholly abandoned. As the above revelations point to the contrary, it is incumbent on the College authorities to disclose the reasons, if any, to deny the post of lecturer in Political Science to the review applicant and instead divert it therefrom to the department of Arabic for accommodation of the Respondent No. 5. In the changed conspectus of facts, therefore, the rejection of the review applicant's plea for his appointment against the post of lecturer in Political Science on the basis of the first selection deserves a new look. 14. The debate centering around the alleged non compliance of the directive of the Office Memorandum dated 17.7.2004 vis-a-vis the Respondent No. 5 need not detain this Court in the face of the judgment and order dated 26.4.2005 passed by this Court in WP(C) No. 920/2000 setting aside his appointment as a lecturer of Arabic in the College. Not only the Respondents have rightly refrained from contesting the facts relatable thereto, the orders placed on record unequivocally demonstrate the correctness thereof and the finality of the adjudication in this regard. The fact remains that as on date, the Respondent No. 5 has ceased to be a lecturer in Arabic in the College a fact, admitted by his learned Counsel in course of the arguments. The fact remains that as on date, the Respondent No. 5 has ceased to be a lecturer in Arabic in the College a fact, admitted by his learned Counsel in course of the arguments. Even assuming, therefore, that the resolution dated 2.4.2005 in his favour was not opposed to the letter and spirit of the interim order dated 13.6.2001 passed in the writ proceeding as well as the Office Memorandum dated 17.7.2004 in the teeth of the above, same pales into insignificance. What is irreconcilably distressing is that no disclosure of these facts to the court was made by the College authorities during the pendency of the writ proceeding. Obviously the same if not withheld, the judgment and order dated 25.7.2006 would not have omitted to deal with the same. The order dated 19.10.2006 of the Director approving the resolution for appointment of the Respondent No. 5 in the post of lecturer in the department of Arabic in the College is inexplicably intriguing as well. Either there is a communication gap between the College authorities and the aforementioned state authority or the favour bestowed on him is on collateral considerations. The Respondent No. 5 not being in the service of the College on that date, the said order is otherwise inconceivable. This Court by judgment and order dated 25.7.2006 though had repulsed the assailment of the resolution dated 2.4.2005 deciding to accommodate the Respondent No. 5 against the vacant sanctioned post of lecturer in Political Science, being unaware of the annulment of his appointment in the interregnum, the same by no means could have been construed to be a mandate to act in terms thereof ignoring the progression of events. 15. The authorities cited at the Bar in unison underline the severely constricted scope of review of a judgment of a court of law by limiting the scrutiny in substance to the parameters enumerated in order 47, Rule 1 of the Code of Civil Procedure, 1908 ('the Code'). The starting caveat is against the review court from acting as an appellate forum to respond to any error of fact or law as a ground therefor. No new issue neither raised nor decided in the main case can be addressed. The starting caveat is against the review court from acting as an appellate forum to respond to any error of fact or law as a ground therefor. No new issue neither raised nor decided in the main case can be addressed. Any omission on the part of the review applicant to highlight all aspects of the case in the earlier outing or ought to have been more persuasively argued is beyond the range of review. Be that as it may, the scope of review though extremely limited the generally recognized grounds therefore are - (i) discovery of new and important matter of evidence which after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the order was passed, (ii) mistake or error apparent on the face of the record, and (iii) any other sufficient reason. 16. The Apex Court in S. Nagaraj and Ors. v. State of Karnataka and Anr., 1993 Supp (4) SCC 595 while dwelling on the pristine exigency of review in the context of adjudication by a court propounded, thus: Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the court should not be prejudicial to anyone. Rule of stare decision is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded form rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies, in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The later is available where the mistake is of the court. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The later is available where the mistake is of the court. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exception both statutory and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the higher court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. The facts relating to the aspect of appointment of Ms. Kunjalata Baruah and termination of the service of the Respondent No. 5 in the estimate of this Court were new and important materials having a definitive bearing on the process of the adjudication to be undertaken by this Court for answering the issues raised. On a scrutiny of the pleadings of the parties, this Court is satisfied that the above facts were not within the knowledge of the review applicant at the relevant time and that non consideration thereof has resulted in an error apparent on the face of the record. The judgment and order dated 25.7.2006 if sustained in the above premise would render the same illogical and incoherent. 16A. The review application in the above view of the matter is allowed. The judgment and order aforementioned is hereby recalled and the matter stands remitted to the Director, Higher Education, Assam for his scrutiny of the Proceeding Book(s) and other records of the Governing Body of the College to ascertain as to whether the appointment of Ms. Kunjalata Baruah had been against the post of Lecturer in Mathematics pursuant to the first advertisement and if so, the reason for excluding the Petitioner from a similar benefit. If no reason is forthcoming therefor, the College authorities would take an appropriate decision in this regard more particularly in view of termination of the services of the Respondent No. 5 in the meantime. If no reason is forthcoming therefor, the College authorities would take an appropriate decision in this regard more particularly in view of termination of the services of the Respondent No. 5 in the meantime. The Director would also take immediate steps to recall his approval dated 4.5.2005 and 19.10.2006 qua the Respondent No. 5 on the issue of his regularization in the post of lecturer in Arabic in the College. 17. The review application in the result stands allowed and the writ petition consequentially is disposed with the directions. No costs.