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2012 DIGILAW 925 (GAU)

Md. Nur Sahed Ali v. State of Assam

2012-08-03

AMITAVA ROY, PRASANTA KUMAR SAIKIA

body2012
JUDGMENT Amitava Roy, J. 1. The judgment and order dated 16.2.2012 rendered in Writ Appeal No. 31/2012 sustaining the decision dated 8.2.2012 delivered in WP(C) No. 547/2012 is sought to be reviewed by the instant application. The review applicants/petitioners, admittedly, had not been impleaded as parties in the above referred proceedings. We have heard Mr. BD Konwar, learned counsel for the review applicants; the learned Standing Counsel, Education Department, Govt. of Assam; Mr. SN Sarma, learned senior counsel for the respondent No.4, Governing Body of Borkhetri College (for short, hereinafter referred to as 'the College'); Mr. PD Nair, learned counsel for the respondent No.5 and Mr. S Haque, learned counsel for the respondent No.9. 2. The aforesaid writ proceeding was registered on an application under Article 226 of the Constitution of India filed by the respondent No.9 herein seeking the following reliefs: 1) a Writ in the nature of Certiorari and/or any other appropriate order or directions to set aside and quash the impugned appointment given to an unknown person to the post of Grade IV in the Barkhetri College, Mukalmua pursuant to advertisement dated 30.06.2011 and or any other consequential order/orders issued by the respondents pursuant to advertisement dated 30.06.2011; 2) a Writ in the nature of Mandamus and/or any other appropriate order or directions to the respondent authorities to direct the college authorities to appoint the petitioner to the post of Grade IV after the initiation of a proper selection process pursuant to advertisement dated 30.06.2011. 3. The State of Assam; the Director of Higher Education, Assam; the College represented by its Principal-cum-Secretary and the Governing Body thereof were arrayed as respondents therein. According to the writ petitioner/respondent No.9, pursuant to an advertisement dated 30.6.2011, he applied for the post of Grade-IV in the College in the proper format which was duly accepted by the concerned authorities of the institution. The writ petitioner/respondent no.9 averred inter alia that the College was a non-provincialised organization and was not under the Deficit Grants-in-Aid programme of the Government but was receiving financial assistance from it and, thus, was under its control. He alleged that under the cover of a process initiated by the advertisement dated 30.6.2011, the College authorities, however, on extraneous considerations appointed some unknown person in the post involved and that no selection as such did in fact take place. 4. He alleged that under the cover of a process initiated by the advertisement dated 30.6.2011, the College authorities, however, on extraneous considerations appointed some unknown person in the post involved and that no selection as such did in fact take place. 4. The learned Single Judge noticing the reliefs prayed for as above recorded the stand of the learned Standing Counsel, Education Department that the College was a privately managed one and thus was not amenable to the writ jurisdiction of this Court. Reliance was placed on the decision of this Court in Mubarak Hussain & Anr. -vs- State of Assam & Ors., 2008 (1) GLT 615 and also the judgment and order dated 28.7.2010 passed in WA 227/2010 (Md. Ali Haider -vs- State of Assam & Ors.) to this effect. The learned Single Judge accepting this plea on behalf of the State respondents concluded that the writ petition was not maintainable and accordingly dismissed the same, however, leaving the writ petitioner/respondent No.9 at liberty to pursue some other legal remedy as may be available to him. 5. Being aggrieved, the writ petitioner/respondent No.9 preferred W.A. No. 31/2012 which was dismissed as well by the judgment and order dated 16.2.2012 which is sought to be reviewed. In recording its agreement with the view taken by the learned Single Judge, the appellate Bench also took note of the fact that the certificate dated 21.9.2011 relied upon by the appellant indicated that on the date of issuance thereof, the College was not in receipt of any financial assistance from the Government. That the institution was not provincialised and had not been brought under the Deficit Grants-in-Aid system of the Government was also taken note of. Noticeably, both these pleas had been reiterated on behalf of the State respondents in the appeal as well. 6. The review applicants seek to emphatically contend as the principal ground for review of the judgment and order dated 16.2.2012 that the same had been obtained by applying deceitful and fraudulent means by the respondent No.9/appellant in collusion with the respondent No.5. 6. The review applicants seek to emphatically contend as the principal ground for review of the judgment and order dated 16.2.2012 that the same had been obtained by applying deceitful and fraudulent means by the respondent No.9/appellant in collusion with the respondent No.5. In essence, they have asserted that in the litigational background involving them and the respondent No.5 in particular chiefly centering around the office of the Principal of the College the decisions already rendered by this Court and the pending proceedings, this surreptitious move was undertaken by the respondent No.5 by propping up the respondent No.9 to obtain this finding by projecting incorrect and incomplete facts. 7. They pleaded in short that they are lecturers in the College along with the respondent No.5 and being aggrieved by the actions of the authorities thereof in contravention of the Assam Aided College Employees' Rules, 1960 and the Gauhati University Ordinance on Recruitment, Service Condition, Workload and Leave Rules for Professors, Principals, Readers, Lecturers and other Officers Gauhati University or its Constituent and Affiliated Colleges, approached this Court with WP(C) No. 7642/2001. They objected as well to the decision of the said authorities to allow the respondent No.5 to take over the charge of the Principal of the institution. The Notification dated 3.7.2001 constituting the Governing Body of the College was also impeached. They having been terminated thereafter from service, returned to this Court with fresh challenges in WP(C) 8661/2001 and WP(C) 152/2002. Four other lecturers of the Colleges also joined the fray with WP(C) 1174/2002, their services having been terminated as well. They have averred that thereafter this Court by a common judgment and order dated 8.9.2005 disposed of these writ petitions by interfering with the Notification dated 3.7.2001 as well as the communication dated 15.10.2001 conveying the decision of the Governing Body to hand over the charge of the office of the Principal of the Degree College to the respondent No.5. The Director of Higher Education, Assam was directed to conduct an enquiry to decide the status of the petitioners vis-à-vis the College. The State authorities were also required to make appropriate arrangements to fill up the office of the Principal of the Degree College expeditiously in accordance with law. 8. A detailed recitation of the facts in the review application for the limited purpose is not necessary to be referred to. The State authorities were also required to make appropriate arrangements to fill up the office of the Principal of the Degree College expeditiously in accordance with law. 8. A detailed recitation of the facts in the review application for the limited purpose is not necessary to be referred to. Suffice it to mention that the lingering controversy on the above issues and those surfacing from the subsequent developments subsist. Proceedings between the parties are also pending adjudication before this Court. Though meanwhile as a temporary measure by order dated 7.9.2008 Dr. Dharanidhar Goswami had been appointed as the Principal of the College, he on 31.12.2010 handed over the charge of the office to the respondent No.5. 9. The above narrated factual background has been portrayed emphatically by the review applicants to reinforce their imputation of fraud and deceit applied to obtain the finding against the amenability of the College to the writ jurisdiction under Article 226 of the Constitution of India. 10. Mr. Konwar has assiduously argued that the judgment and order sought to be reviewed having been secured by playing fraud on this Court, it is per se non-est and is thus liable to be recalled. Contending that the review applicants had intentionally not been arrayed as respondents in the writ proceedings, though necessary in the backdrop of the continuing litigation pertaining to the office of the Principal of the institution, the learned counsel has emphatically urged that no advertisement dated 30.6.2011 had ever been issued and the candidature of the respondent No.9 is imaginary. This the learned counsel has sought to impress upon us by referring to the letter dated 1.3.2012 addressed by the Principal-in-Charge of the Barkhetri College to Mr. Zakir Hussain Saikia, Advocate in response to his application under the Right to Information Act, 2005. Mr. Konwar has urged as it would be evident from this letter that neither any resolution of the Governing Body for issuance of the advertisement dated 30.6.2011 nor any record to that effect is available, the purported process was, for all intents and purposes, non-existent only to make out a case in the name of the respondent No.9 and obtain the finding that the institution was not amenable to the writ jurisdiction. The learned counsel on instructions even urged that the signature on the application of the respondent No.9 offering his candidature was forged. 11. The learned counsel on instructions even urged that the signature on the application of the respondent No.9 offering his candidature was forged. 11. Without prejudice to these, the learned counsel contended that in view of the pendency of other proceedings between the review applicants and the respondent No.5, necessary clarification be made by this Court to the effect that the finding vis-à-vis the status of the institution as recorded in the judgment and order dated 16.2.2012 would remain limited to the facts and circumstances taken note of without, however, having any bearing in general terms. The learned counsel further urged with reference to the order dated 10.8.2011 passed in WP(C) 4073/2011 that a Single Bench of this Court having tentatively opined that the writ petition against this College was maintainable and the appeal preferred against had subsequent thereto been withdrawn, the detour taken by the respondent No.5 by getting the writ petition filed by the respondent No.9 was a clear attempt on his part to overreach this finding, though tentative in nature. Mr. Konwar to reinforce his pleas placed reliance on the decisions of the Apex Court in Ram Janam Singh -vs- State of Uttar Pradesh & Anr., AIR 1994 SC 1722 and in A.V. Papayya Sastry & Ors. -vs- Govt. of A.P. & Ors., (2007) 4 SCC 221 . 12. Whereas the learned Standing Counsel, Education Department, Govt. of Assam reiterated the contention that the College was not amenable to writ jurisdiction, it being privately managed by relying on the decision of this Court in Mubarak Hussain & Anr. -vs- State of Assam & Ors., 2008 (1) GLT 615, Mr. Sarma has urged that in absence of any assailment of the legality and/or validity of the finding vis-à-vis the College as recorded in the judgment and order dated 16.2.2012, no ground for review thereof has been made out. As no illegality in the judgment and order aforestated has been demonstrated, the same being based on earlier decisions of this Court, the application for review is misconceived and is liable to be dismissed, he insisted. 13. Mr. As no illegality in the judgment and order aforestated has been demonstrated, the same being based on earlier decisions of this Court, the application for review is misconceived and is liable to be dismissed, he insisted. 13. Mr. Nair while pointing out that the respondent No.5 was not a party either in the writ proceeding or the appeal in which the judgment and order dated 16.2.2012 had been rendered, has affirmed that the advertisement dated 30.6.2011 had been issued by him in the capacity of the Principal of the College at the relevant point of time. While iterating that he held the said office till 10.8.2011 and that the letter dated 1.3.2012 of the in-Charge Principal pertaining to the queries under the Right to Information Act, 2005 was not with reference to all relevant records, the learned counsel has maintained that no ground for review as contemplated in law having been made out, the instant application ought to be rejected. 14. The learned counsel for the respondent No.9 on instructions submitted that he (respondent No.9) had in fact applied in response to the advertisement dated 30.6.2011 and being aggrieved by the manner in which the process was conducted culminating in the appointment of unknown persons, he approached this Court seeking redress. 15. We have carefully considered the pleaded facts to the extent essential for evaluating the rival submissions. Conspicuously enough though considerable emphasis has been persistently laid on the aspect of deceit and fraud allegedly committed by the respondent No.5, no challenge to the finding of the learned Single Judge as well as by the appellate Bench in its judgment and order dated 16.2.2012 about the status of the College and the amenability thereof to the writ jurisdiction on the considerations and/or determinants taken note of in support thereof had been made in course of the arguments. A bare perusal of the judgments and orders dated 8.2.2012 and 16.2.2012 rendered in WP(C) 547/2012 and WA 31/2012 would reveal that those were principally based on the stand adopted on behalf of the State respondents being backed by the decision of this Court in Mubarak Hussain (supra) and WA No. 227/2010 (Md. Ali Haider - vs - State of Assam & Ors.) to the effect that a privately managed institution is not a State or an instrumentality thereunder against which a writ proceeding is maintainable in law. Ali Haider - vs - State of Assam & Ors.) to the effect that a privately managed institution is not a State or an instrumentality thereunder against which a writ proceeding is maintainable in law. Apart therefrom, the certificate dated 21.9.2011 of the Additional Secretary, Govt. of Assam, Higher Education Department qua the financial assistance to the institution was also analysed to return a finding that on the date of issuance thereof the College was not in receipt of any such assistance. This too had been endorsed on behalf of the State respondents. 16. The categorical and unambiguous assertion on behalf of the respondent Nos. 5 and 9 that the advertisement dated 30.6.2011 had in fact been issued by him (respondent no.5) and was responded to by the respondent No.9 besides being in emphatic controversion of the pleas of the review applicants to the contrary, do raise highly disputed and contentious facts. Though a Single Bench of this Court by order dated 10.8.2011, while issuing notice of motion in WP(C) 4073/2011, at that stage did record a prima facie satisfaction about the maintainability of the writ petition against the College, we have not been referred to any final order or determination in affirmation thereof. 17. While taking note of the decision of the Apex Court in Ram Janam Singh (supra), the demur to the locus of the review applicants, as expressed on behalf of the respondents, is negated, we are of the view that the ground of fraud and deceit as relied upon by the review applicants is of no avail to them. Having regard to the framework of the determinations made by the judgments and orders dated 8.2.2012 and 16.2.2012 rendered in WP(C) 547/2012 and WA 31/2012, the decision of the Apex Court in A.V. Papayya Sastry (supra) in reiteration of the settled legal proposition that a judgment, decree or order obtained by applying fraud on the Court, Tribunal or authority is a nullity, does not assist the review applicants. No ground for review contemplated in law has been made out. In the wake of the above, in our comprehension, the review application lacks in substance and is rejected. No costs. Application dismissed.