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Madhya Pradesh High Court · body

2011 DIGILAW 698 (MP)

Ashok Virang v. State of M. P.

2011-06-30

A.M.NAIK, SHANTANU KEMKAR

body2011
ORDER 1. Although one of us namely (Hon'ble Shri Justice Shantanu Kemkar) has decided to rescue from the case, we both are of the definite opinion that the matter is to be brought on the floor because it is an illustrative case of professional mischief, by seeking stay before Judge of this Court sitting alone as Vacation Judge of consent order passed by the Division Bench of this Court, without making a request to Hon'ble the Chief Justice for constitution of Division Bench for hearing of the matter, and also by avoiding available Division Bench on various dates during Court's summer vacation but by making mention without there being applications for vacational hearing and urgent hearing on review petition on merits. No date for listing was specified in the mention memo so that presumably the matter could be got listed before Vacational Single Judge (during nonavailability of vacational Division Bench during Court's summar vacation) who had no jurisdiction to hear the review under the High Court of Madhya Pradesh Rules, 2008 read with the provisions contained in Order 47 of Code of Civil Procedure. We have been further informed that a contempt petition has also been submitted on 21.6.2011 for compliance of Single Judge's order dated 2.5.2011 read with Vacation Judge's order dated 13.6.2011 before the same Judge (i.e. same Vacation Judge) and notices have been issued in it on 21.6.2011. 2. Undisputedly, there is a chequered history of litigation between the parties which for the purposes of the present matter needs no narration in detail. 3. The facts in short relevant for the purposes of the present matter are that Dr. Ashok Virang, the reviewist submitted Writ Petition No.3926/ 201O(S) with the following main reliefs: "(a) Issue a writ, order or direction in the nature of certiorari calling for the records of the petitioner's case and on examining the same quash the promotion order of respondent No.3 (Annexure P-10) and DPC proceedings of 22.6.2009 (Annexure P-5). (b) Issue a writ, order or direction in the nature of mandamus directing the respondents to properly convene the impugned DPC dated 22.6.2009 and consider the petitioner's name for promotion and promote him on being found fit for promotion after excluding from consideration irrelevant and incorrect material" 4. (b) Issue a writ, order or direction in the nature of mandamus directing the respondents to properly convene the impugned DPC dated 22.6.2009 and consider the petitioner's name for promotion and promote him on being found fit for promotion after excluding from consideration irrelevant and incorrect material" 4. Writ petition despite opposition was allowed on 2.5.2011 by the learned Single Judge with following operative portions: "It is pertinent to note that the respondents have not held the DPC till date as directed by this Court and on the contrary again promoted a junior on temporary basis depriving the petitioner of his legitimate right of consideration as directed by this Court in the earlier round of litigation and therefore, as the DPC has not been held in consonance with the provisions of the M.P. Public Services Promotion Rules, 2002, the proceedings of the DPC and the consequential promotion order dated 19.11.2009 are hereby quashed. The respondents are directed to hold a fresh DPC keeping in view the provisions of the recruitment Rules as well as the provisions of the M.P. Public Services Promotion Rules, 2002. The aforesaid exercise of holding DPC be concluded within 30 days from the date of receipt of certified copy of this order. With the aforesaid this writ petition stands allowed." 5. Writ Appeal No.306/2011, at the instance of the present respondent No.3 came up before this Division Bench on 16.5.2011, wherein the petitioner appeared as respondent No.3 and was represented by Shri Brian D'Salve, senior counsel with advocate Mrs. Meena Chaphekar. 6. Learned counsel for the parties made agreed submissions for modification of the order of the learned Single Judge to the extent that the State Government be directed to hold separate DPC and order to direct review DPC has to be passed with further direction that the review DPC shall consider the matter keeping in view rule 7 clause (7) and (8) of the M.P. Public Services (Promotion) Rules, 2002. This is clearly revealed in the following portions of the order (under review) of our Division Bench: "When the matter came up for hearing, it has not been disputed by the learned counsel appearing for the parties that the promotion from the post of Joint Director to the post of Director Public Health and Family Welfare Department is governed by the M.P. Public Services (Promotion) Rules, 2002 (for short the Rules of 2002). However, it has been stated by the learned counsel for the parties that the promotion being from Class I to higher pay-scale of Class I post it has to be made on the basis of merit-cum-seniority in view of rule 4(20 of the Rules. In the circumstances, according to the learned counsel for the parties, the learned Single Judge has committed error in observing that the said promotion is governed by rule 6(1) and Explanation 6 of Rules of 2002. According to them when the promotion is to be made on the basis of merit-cum-seniority rule 7 of the Rules is attracted. Rule 7(7) provides that when one or more ACRs are not available for any reason for the relevant period, the Departmental Promotion/ Screening Committee shall consider the ACRs of the years preceding the period in question. Rule 7(8) provides that when the eligibility for promotion from Class I to higher pay-scale of Class I posts, the benchmark grade shall be "Very Good". It has been stated by the learned counsel for the parties that in view of the aforesaid rule position the order passed by the learned Single Judge need to be modified to the extent that instead of directing to hold a "fresh DPC" an order to direct the "review DPC" has to be passed with a further direction that the review DPC shall consider the matter keeping in view the rule 7 sub-clause (7) and (8) of the Rules of 2002. On going through the Rules of 2002, we find ourselves in complete agreement with the submissions made by the learned counsel for the parties" 7. Accordingly, the writ appeal was allowed by modifying the order of the learned Single Judge passed in Writ Petition No.3926/2010 (S) to the extent indicated here-in-below: "(i) The official respondents shall hold review DPC instead of fresh DPC. (ii) While considering the matter for promotion the review DPC shall follow rule 7(7) and (8) of Rules of 2002. (iii) The review DPC shall be held and appropriate order of promotion be passed as expeditiously as possible, but not later than 4 weeks' from the date of receipt of copy of this order. Needless to say that non-compliance of the outer time limit shall be viewed seriously. (iii) The review DPC shall be held and appropriate order of promotion be passed as expeditiously as possible, but not later than 4 weeks' from the date of receipt of copy of this order. Needless to say that non-compliance of the outer time limit shall be viewed seriously. (iv) Till such order is issued after holding the review DPC the status quo as it obtains today in respect of post of Director, Public Health and Family Welfare Department shall be maintained by the parties." 8. It is pertinent to note that during the hearing of Writ Appeal No.306/ 2011 or even otherwise, there was no whisper about any of the Constituent Judge of the Division Bench having appeared for the State Government in the capacity of Government Advocate in the earlier round of litigation. Moreover, the Division Bench was not even required to exercise its power or discretion in view of the agreed submissions except to ensure that the joint submissions made by the learned counsel for the parties were not opposed to law. 9. On 19.5.2011, the present review petition was submitted. Following portions of review petition deserve to be taken note of : "6. That it is pertinent to mention here that in the earlier round of litigation when the Writ Petition No.6787/2008(S) was pending before this Hon'ble Court, your Lordship Hon'ble Shri Justice Shantanu Kemkar appeared for the State. As soon as this fact came to the knowledge of your Lordship, by way of order dated 9.2.2009 the same writ petition was ordered to be listed before another bench. The present petition has its existence from the same writ petition which your Lordship was pleased to transfer before another bench. Copy of said order dated 9.2.2009 is filed herewith and marked as Annexure P-3. Therefore, with due respect to your Lordship and this Hon 'ble Division Bench petitioner is seeking review of the order passed by Hon'ble Division Bench on following amongst other grounds: Grounds: 1. ...... 2. That, with due respect to this Hon'ble Division Bench, in light of order dated 9.2.2009 the order dated 16.5.2011 passed by this Hon'ble Court is affecting the principle of natural justice. At the time of hearing of this case, the counsel for the present petitioner was not aware of the order dated 9.2.2009, it came to the knowledge of counsel as well as petitioner after hearing of the case. At the time of hearing of this case, the counsel for the present petitioner was not aware of the order dated 9.2.2009, it came to the knowledge of counsel as well as petitioner after hearing of the case. 3. ......" 10. On perusal, it is observed that the review petition bears type written date 19.5.2011, whereas the affidavit was attested on 17.5.2011, when the review petition was not even typed and prepared. Summer vacation of this Court commenced with effect from 20.5.2011. On 26th, 30th May, 2011 and 2nd, 6th and 9th June, 2011, Division Bench of this Court gave hearing as vacational Bench in certain cases required to be heard by Division Bench. No effort was made by the reviewist to seek hearing of the matter before the vacational Division Bench. The reviewist or his counsel did not make any prayer to Hon'ble the Chief Justice for constitution of Division Bench during summer vacation of this Court for hearing of review petition. On the other hand, petition for Special Leave to Appeal (Civil) No. 14571/2011 against the order dated 16.5.2011 passed by the Division Bench in Writ Appeal No.306/2011 was preferred before Hon'ble Supreme Court of India, which was disposed of on 30.5.2011 with a request to the High Court to decide the pending review petition as early as possible. It is pertinent to note that reviewist had already submitted an application on 24.5.2011 for withdrawal of the review petition, which was not brought to the notice of the Hon'ble Supreme Court and direction for deciding the review petition as soon as possible was obtained by suppressing the important factum of application for withdrawal of review petition vide I.A. No.3238/2011 duly supported by personal affidavit of the reviewist. 11. Although the Division Bench of this Court even after 30th May, 2011 granted hearing to certain matters during summer vacation on 2nd, 6th and 9th June, 2011, reviewist or his counsel did not make any prayer for hearing of the review petition before such Division Bench despite there being direction by the Hon'ble Supreme Court of India on 30th May, 2011 for hearing of the review petition as soon as possible; nor did they make any prayer for constitution of special Division Bench to Hon'ble the Chief Justice for hearing of the present review petition during summer vacation. Instead, learned counsel appearing for the reviewist submitted Mention Memo on 9th June, 2011 despite there being no applications for vacational hearing and urgent hearing of review petition on merits. No date for listing was specified in the 'Mention Memo' and no prayer for hearing on the same day before the available vacational Division Bench was made in the 'Mention Memo'. 12. On perusal, we find that the review petition was submitted on 19.5.2011, which was registered as R.P. No.230/2011 (present review petition) wherein there is an application (I.A. No.3238/2011) dated 24.5.2011 duly supported by affidavit of Shri Ashok Virang for withdrawal of the review petition. Para 2 of the application is reproduced below: "2. That the petitioner wants to withdraw the present review petition, so in the interest of justice the petitioner may be permitted to withdraw the present review petition and liberty may be granted to challenge the impugned order before the Hon'ble apex Court." Application (I.A. No.3239/2011) for hearing during vacation and application (un-numbered) for early hearing were submitted simultaneously with application for withdrawal of review petition. They are in relation to the hearing of the application for withdrawal of review petition as they were simultaneously submitted on 24.5.2011. Thus, there was no prayer for vacational hearing or early hearing of the review petition on merits. 13. On perusal it is further observed that I.A. No.3278/2011 was submitted on 2.6.2011 for seeking leave to withdraw the application for withdrawal of review petition i.e. 3238/2011, but the same was not accompanied by any affidavit, whereas the earlier LA. No.3278/2011 was accompanied by personal affidavit of the reviewist himself. Application I.A. No.3239/2011 was in relation to the application for withdrawal of review petition and was not meant for early hearing in relation to the hearing during vacation for staying the order dated 16.5.2011. Although the review petition was listed before the learned Single Judge sitting as a Vacation Judge on Court slip, it was the boundant duty of the office to put a note and bring it into the notice of learned Vacation Judge that there was no application for early hearing or for vacational hearing in respect of review petition on merits. Although the review petition was listed before the learned Single Judge sitting as a Vacation Judge on Court slip, it was the boundant duty of the office to put a note and bring it into the notice of learned Vacation Judge that there was no application for early hearing or for vacational hearing in respect of review petition on merits. It was not done for the reasons best known to the office and the case was listed during summer vacation on 13.6.2011 before the Judge sitting alone, during vacation at S.No.534 without pointing out the deficiency with regard to absence of application for vacation hearing as well as early hearing in respect of review petition on merits. As per the cause list, the case was listed for the following purposes: "Daily cause list for Monday 13.6.2011 Hon 'ble the Vacation Judge S.No.534. RP 230/2011 Dr. Ashok Virang, G.S. Yadav, Ankit Dalela, Vivek Shrivastava/M. Mansoori, R. Yadav Versus Secretary The State of Madhya Pradesh and 2 others A.G. For further order + on A.I. No.3238/2011 (Flag-A) for withdrawal of review petition + On I.A. No.3278/2011 (Flag A-3) for seeking leave to withdraw the application for withdrawal or review petition + On I.A. No.3239/2011 (Flag A-1) for hearing during vacation + E.H. + On I.A. No.3277/2011 (Flag A-2) for permission to raise additional grounds in the review petition + On I.A. No.3290/2011 (Flag A-4) for grant of stay [MM]." It appears from the order dated 13.6.2011 that it was mis-stated before the learned Single Judge, sitting as a Vacation Judge, that I.A. No.3239/2011, were applications for early hearing and application for hearing during vacation for staying the operation of the order dated 16.5.2011 (This is contrary to contents of I.A. No.3239/2011 which were in relation to hearing on application for withdrawal of review petition). In view of the pending application for withdrawal of the review petition, duly supported by personal affidavit of the review petitioner, there was absolutely no urgency. Though an application to seek leave to withdraw the earlier application for withdrawal was submitted, but the same was not accompanied by personal affidavit and it could not have over-weighed the earlier application read with personal affidavit of the reviewist. Though an application to seek leave to withdraw the earlier application for withdrawal was submitted, but the same was not accompanied by personal affidavit and it could not have over-weighed the earlier application read with personal affidavit of the reviewist. This was also not brought into the notice of the learned Vacation Judge, which is clear from the order of the learned Single Vacation Judge wherein I.A.No.3238/2011 does not appear to have been dealt with presumably because it must not have been brought into the notice. Thus, it is obvious that the Court slip was obtained by suppressing various aforesaid important facts/factors, including pending I.A. No.3238/2011. 14. The operation of the order dated 16.5.2011 was stayed by the learned Judge sitting alone as a Vacation Judge in the following manner: "Keeping in view the facts and circumstances of the case and the directions issued by the Hon 'ble apex Court vide order dated 30.5.2011, the operation of the order impugned herein is stayed." It is emphasized that no direction was issued by the Hon'ble apex Court as revealed in the following operative portion of it's order: "We have heard learned counsel for the petitioner at some length and perused the record. Admittedly, the review petition filed by the petitioner is pending before the High Court. We, therefore, decline to entertain the special leave petition and dispose of the same with request to the High Court to decide the pending review petition as early as possible." Thus, it is clear that either there was mis-statement by the counsel for reviewist about alleged directions by the apex Court or the order of the apex Court containing no directions was mis -construed/mis-interpreted by the learned Vacation Judge. 15. It is further observed that the learned Vacation Judge in view of pendency of application for withdrawal of review petition vide I.A.No.3238/2011 accompanied by personal affidavit of reviewist could not have straightway dealt with any other application before passing order on it. Looking to pendency of application for withdrawal of review petition, there could not have been urgency for hearing during summer vacation without withdrawal of it with necessary personal affidavit of reviewist. This aspect has also been suppressed. 16. Looking to pendency of application for withdrawal of review petition, there could not have been urgency for hearing during summer vacation without withdrawal of it with necessary personal affidavit of reviewist. This aspect has also been suppressed. 16. The main ground in the review petition is that one of us (namely Hon'ble Shri Justice Shantanu Kemkar) had appeared for the State, in earlier round of litigation, as revealed in the order dated 9.2.2009 passed in Writ Petition No.6787/2008(S). This fact was not known to the Division Bench because a Government Advocate has to appear in so many cases for the State, and normally is not in a position to recollect all such matters. It was not brought to the notice of this Division Bench during the hearing of Writ Appeal No.306/2011. Moreover, a consent order was passed on the basis of agreed submissions made by the learned counsel for the parties and there was no occasion for the Division Bench to exercise its discretion in favour of either parties. It has been mentioned in the review petition itself that this fact came into notice, after hearing of Writ Appeal No.306/ 2011. 17. At this juncture, we may refer to the relevant following provisions: (i) "Chapter IV rule 13 of High Court of M.P Rules, 2008 : 13(1)(a) Save as provided in sub-rule (2), an application for review, clarification or modification of a judgment, decree or final order, passed by a Judge or Judges shall be heard by the same Judge or Judges: Provided that such application filed in respect of an interlocutory order in a pending case shall be posted before the regular bench. (b) An application for review, clarification or modification of a judgment, decree or final order, passed by a Judge or Judges who or one or more of whom is or are – (i) temporarily unavailable and in the opinion of the Chief Justice, the application, looking to the urgency of the matter, cannot wait for such Judge or Judges to resume work or, (ii) permanently unavailable, shall be heard – (1) if the decree or order, review of which is applied for, was passed by a Judge sitting alone, by the regular Division Bench, (2) if the said decree or order was passed by two or more Judges by a bench of coordinate strength, to be constituted by the Chief Justice. Such bench shall, however, include the Judge or Judges who was/were part of the bench whose decree or order is under review, if available : Provided that where both Judges of a Division Bench are permanently unavailable the matter shall be listed before the regular Division Bench. (ii) As regards the powers of Vacation Judge to review the order of Division Bench, we may refer to rule 9 of Chapter 7 of High Court of Madhya Pradesh Rules, 2008. The same is reproduced below: "Chapter VII rule 9. A Judge sitting alone as a Vacation Judge, may exercise the original and appellate jurisdiction vested in the Court in the matters which are required by virtue of any rules framed by the High Court to be heard by a bench of two or more Judges – (1) in any criminal proceeding other than one mentioned in rule 4(1) to (12) of Chapter IV of these Rules; (2) in any matter which he considers urgent. However, the Vacation Judge sitting alone shall not exercise such jurisdiction – (a) where the matter is required by virtue of any law to be heard by a bench of two or more Judges; or (b) where a Division Bench is sitting on that day." The aforesaid Rules clearly postulate that the Judge sitting alone as Vacation Judge may exercise the original and appellate jurisdiction vested in the Court. Exercise of power of review of order passed by the Division Bench is neither within the ambit of original jurisdiction nor of appellate jurisdiction vested in the Court. Clause 2(a) clearly prohibits the Judge sitting alone as Vacation Judge from hearing any matter which is required by virtue of law to be heard by a Bench of two or more Judges. Learned counsel appearing for reviewist made a feeble attempt to support the order passed by the Vacation Judge on the strength of the citation reported as 1988 MPLJ 258 , but he admitted that it does not relate to the exercise of power of review of an order passed by regular Division Bench. (iii) Order 47 rule 5 of CPC, being relevant, is reproduced for convenience: "5. Application for review in Court consisting of two or more Judges. (iii) Order 47 rule 5 of CPC, being relevant, is reproduced for convenience: "5. Application for review in Court consisting of two or more Judges. -- Where the Judge or Judges, or anyone of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same." 18. A conjoint reading of the aforesaid provisions makes it clear that a Vacation Judge sitting alone is not empowered to exercise the power to review an order passed by a Division Bench in writ appeal. Since the writ appeal is to be necessarily heard by Division Bench, order passed by it can by no stretch of imagination be reviewed by the Vacation Judge sitting alone even during vacation of the Court. It is no where contemplated under law. Learned counsel for the reviewist ought to have made a prayer either to vacational Division Bench or to Hon'ble Chief Justice for constitution of Special Division Bench to hear the review matter. As already stated, review petition was submitted on 19.5.2011 and the Division Bench had granted hearing during summer vacation of this Court on 26th, 30th May, 2011 and 2nd, 6th and 9th June, 2011. No effort was made by the reviewist or his counsel to seek hearing on such dates. They did not make prayer for constitution of Division Bench for hearing of review petition. Instead, the matter was got listed before the learned Single Judge sitting alone as Vacation Judge by obtaining Court slip, despite availability of Division Bench on various dates during Court's summer vacation and further by avoiding hearing before available Division Bench. This entire game does not appear to be fair on the part of reviewist and their lawyers and is liable to be highly deprecated. 19. It is important to note that Shri Brian D'Salve, senior counselor even Mrs. This entire game does not appear to be fair on the part of reviewist and their lawyers and is liable to be highly deprecated. 19. It is important to note that Shri Brian D'Salve, senior counselor even Mrs. Meena Chaphekar, learned counsel who appeared in Writ Appeal No.306/2011 on 16.5.2011 did not submit any affidavit to the effect that undisputed or agreed statement made in the capacity of counsel for the parties as described/narrated in the order dated 16.5.2011 in Writ Appeal No.306/2011 was not infact made by them. Consent from them has not been obtained while submitting tae present review petition. Such practice has been condemned by the Hon'ble Supreme Court in the case of Tamil Nadu Electricity Board and another v. N. Raju Reddiar and another [ AIR 1997 SC 1005 ), in following words: "When an appeal/special leave petition is dismissed, except in rare cases where error of law or fact is apparent on the record, no review can be filed; that too by the advocate on record who neither appeared nor was party in the main case. It is salutary to note that Court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the advocate on record at earlier stage. This is not conducive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession." 20. This being so, no valid ground for review within the ambit of Order 47 rule 1 CPC appears to be available to the reviewist, merely on the ground that one of the constituent Judge of the Division Bench had appeared for the State Government in another connected earlier writ petition, more so, when the reviewist has failed to aver that any kind of favour was made on account of the alleged fact and that prejudice has been caused to him. It is reiterated that the order under review was passed on agreed submissions made by the counsel for the parties and was not based on discretion of the Court. It is reiterated that the order under review was passed on agreed submissions made by the counsel for the parties and was not based on discretion of the Court. It has not been demonstrated anywhere that how did it affect the order under review and how did it cause prejudice to the reviewist. It is observed that had the said fact been brought in to the notice at the right juncture, this Division Bench would not have passed even the consent order, which was passed inadvertently for want of recollection about appearance in earlier litigation as well as for no attention was drawn to it. 21. In any case, since it has been made out that one of us namely (Hon 'ble Shri Justice Shantanu Kemkar) had been a counsel in earlier round of litigation giving rise to the present matter who has desired to rescue from the case, as expressed herein, we, in the fact and circumstances, hereby recall the order dated 16.5,2011, passed in Writ Appeal No.306/2011. It is further observed that since the order under review has already been recalled hereinbefore, consequently, the order passed by the Vacation Judge while sitting alone in the present review petition on 13.6.2011 survives no more. It is made clear that any observation made by this Court in this order shall not come in the way during hearing of the writ appeal pursuant to the order of recall. Office is directed to fix the case before another Division Bench of which one of us (namely Hon 'ble Mr. Justice Shantanu Kemkar) is not a party.