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2015 DIGILAW 124 (MAN)

Manipur University and Ors. v. Purna Chandra Thoudam

2015-09-29

N.KOTISWAR SINGH

body2015
JUDGMENT N. Kotiswar Singh, J. 1. Heard Mr. B.P. Sahu, learned senior counsel for the review petitioners. Heard also Mr. Rarry, learned counsel for the respondent (writ petitioner). 2. The present review petition has been filed by the Manipur University and another seeking review of the judgment and order dated 06-01-2015 passed in Writ Petition (Civil) No. 14 of 2010, mainly on the ground that a new document has come to the possession of the Manipur University which would substantially change the course of the decision. It has been submitted that the said document would show that the writ petitioner was aware of the University Grants Commission scheme for grant for advance increment to teachers who acquired Ph.D during service (prior to 01-01-1996) in the year 2002, and hence, as the writ petition was filed belatedly in 2010 making the claim for the said benefit, the writ petition would be hit by delay and laches. In this regard, Mr. B.P. Sahu, learned senior counsel, has referred to Para Nos. 23 and 24 of the Judgment and order dated 06-01-2015, and has submitted that as recorded in the aforesaid para 23, the case of the writ petitioner was that though the UGC had taken the policy decision to grant the benefit of two advance increments in the year 2001, the petitioner claimed to have become aware of the fact that the Government of Manipur implemented the said scheme in 2004, only after he had returned from Mysore on completion of his fellowship in the year 2007. It was the case of the petitioner after he unsuccessfully represented the authorities for grant of the said benefit he filed the writ petition in 2010 to avail the said benefit. Mr. B.P. Sahu, learned senior counsel submits that the petitioner had, in fact, submitted an application on 22-04-2002 to the Registrar of Manipur University for grant of the aforesaid benefit (a copy of which has been annexed as Annexure-A/19 to the review petition, existence of which the Manipur University claims to have come to their knowledge only after the judgment and order dated 6.1.2015 was passed), which would clearly show that the petitioner was aware of this UGC scheme in 2002 itself and not in the year 2007 after his return from Mysore as claimed by him as recorded in para 23 of the judgment. It is therefore, the contention of Mr. BP. It is therefore, the contention of Mr. BP. Sahu, learned senior counsel, that if the petitioner was indeed aware of this scheme in the year 2002, filing of the writ petition belatedly in 2010 will definitely be barred by delay and laches and has submitted that the decision of this Court rendered in W.P.(C) No. 236 of 2010 (Saikhom Jatishwar Singh v State of Manipur and ors) on 26-08-2013 would be squarely applicable in the present case. Mr. BP Sahu, learned senior counsel submits that in the aforesaid case of Saikhom Jatishwar Singh (supra), this Court had dismissed the claim for grant of higher pay scale on the ground that the petitioner had approached the Court after a delay of about a decade. Mr. B.P. Sahu, learned senior counsel submits that in the present case, since the petitioner approached this Court after a delay of about 8(eight) years, the writ petition is clearly hit by delay and laches and accordingly, has prayed for review of the judgment and order dated 06-01-2015 on this ground. 3. Though several other grounds have been raised in the review petition, Mr. BP. Sahu, learned senior counsel has not adverted to these at the time of hearing of this review petition, and accordingly, these have not been referred to and considered. 4. Mr. Rarry, learned counsel for the writ petitioner/respondent herein, however, has vehemently objected to the maintainability of the review petition by submitting that the same is not maintainable as it involves hearing on merit and the issue raised by the review petitioner is not one relating to correction of any mistake or error apparent on the face of the record. Mr. Rarry, learned counsel relying on the decision of the Hon'ble Supreme Court in Parsion Devi and ors. v. Sumitri Devi and ors. reported in (1997) 8 SCC 715 submits that a review application would lie only to correct a mistake or error which is apparent on the face of the record and not for correction of an erroneous decision. Mr. Rarry, learned counsel submits that in the present case, the Manipur University authorities is seeking a re-hearing of the matter on merit on the basis of an application stated to have been filed by the petitioner on 22-04-2002 (Annexure- A/19 to the review petition). Referring to para 23 of the judgment and order in issue, Mr. Mr. Rarry, learned counsel submits that in the present case, the Manipur University authorities is seeking a re-hearing of the matter on merit on the basis of an application stated to have been filed by the petitioner on 22-04-2002 (Annexure- A/19 to the review petition). Referring to para 23 of the judgment and order in issue, Mr. Rarry submits that what had been recorded in para 23 is that, though the UGC had taken the policy decision to grant the benefit of two advance increments in the year 2001, the Government of Manipur, under which the Manipur University was functioning at the relevant time, took the decision to implement the scheme only in the later part of 2004. Mr. Rarry, learned counsel therefore submits that even if the petitioner had submitted an application in 2002, no benefit could have been granted till the State Government took the decision to implement the scheme which was only in the later part of 2004. Mr. Rarry reiterates that the fact remains that the State Government took the decision to grant the benefit only in the later part of 2004 which came to the knowledge of the writ petitioner only in the year 2007 after he returned from Mysore. Therefore, Mr. Rarry has submitted that submission of the application of the writ petitioner in 2002 to the Manipur University, even if accepted, will not make any difference as regards the merit of the case, as he would not have been able to enjoy the said benefit in 2002. In any event, it cannot be said to be an error or mistake apparent on record which could be rectified through a review petition. 5. Mr. B.P. Sahu, learned senior counsel, however, has contended that it is not a fact that the said scheme was implemented only in the year 2004 by the State Government by drawing attention of this Court to State Government order dated 23-09-2004. He submits that, the said order dated 23-09-2004 merely indicates that certain amounts were released to 72 teachers conferring the said benefit. Giving of benefits in 2004 does not mean that the said scheme was implemented only in 2004 and that it was not available in 2001. He submits that the fact remains that the Scheme was already in existence in 2001. 6. Heard learned counsel for the parties and perused the materials on record. 7. Giving of benefits in 2004 does not mean that the said scheme was implemented only in 2004 and that it was not available in 2001. He submits that the fact remains that the Scheme was already in existence in 2001. 6. Heard learned counsel for the parties and perused the materials on record. 7. In the writ petition one of the objections raised by the Manipur University against the relief claimed by the writ petitioner for grant of benefit of two advance increments was that the claim of the petitioner was made belatedly, and hence, the writ petition ought to have been dismissed on the ground of delay and laches. This issue was considered by this Court after examining the materials on record and submissions made by the contesting parties as reflected in para 23 and 24 of the judgment and order, which are again reproduced herein for better appreciation : "(23) As regards this plea taken by the University respondent that the writ petition is hit by delay and laches, Mr. Rarry, learned counsel for the petitioner has submitted such a plea has been belatedly taken and moreover, in the facts and circumstances of the case, it cannot be said that there was delay and laches on the part of the petitioner to approach this Court. It has been submitted as stated in the additional affidavit filed by the petitioner that though University Grants Commission had taken the policy decision to grant the benefit of two advance increments in the year 2001, the Government of Manipur (under which the Manipur University was functioning at the relevant time) took the decision to implement the scheme for grant of two advance increments only in the later part of 2004. Therefore, the benefit could be claimed by the petitioner only after the State government took the decision to grant the same which was done in the later part of 2004. It has been also mentioned that at the relevant time, the petitioner was pursuing a Fellowship for two years w.e.f. 01.03.2004 to 30.2.2006 in Mysore for submission of a Research Monograph which he could submit only in the year 2007. It has been also mentioned that at the relevant time, the petitioner was pursuing a Fellowship for two years w.e.f. 01.03.2004 to 30.2.2006 in Mysore for submission of a Research Monograph which he could submit only in the year 2007. It has been submitted that only after he returned from Mysore in the year 2007 he became aware of the fact that the Manipur Government had granted the said benefit of two advance increments and accordingly on coming to know of the same, he pursued the matter by submitting representations to the authorities in 2008 and 2009 and, having not received any response from the authorities, the present writ petition was filed on 11.01.2010. Accordingly, it has been submitted that since the petitioner was diligently pursuing the matter after coming to know only in 2007 that the benefit of two advance increments was implemented by the Manipur University only in the later part of 2004, that there was no negligence on the part of the petitioner and petition is not hit by delay and laches. (24) This Court on consideration of the facts of the case finds that though the plea of delay and laches raised by the Manipur University seems apparently attractive, it cannot come in the way of the petitioner's claim. The fact remains that though the UGC had taken the policy decision to grant the benefit of two advance increments way back in 2001, yet, it was implemented by the State Government only in the later part of 2004. Therefore, the petitioner could not have claimed the benefit before the State Government had implemented the same. As regards the subsequent years, it has been pleaded that the petitioner was away in Mysore undertaking certain projects and could return to Manipur in 2007 on completion of the project when he became aware that the UGC Scheme had been implemented by the State Government in the later part of 2004. Thereafter, he submitted his representations to the authorities in 2008 and 2009 after he returned to Manipur in 2007 and having obtained no response, has filed this writ petition in 2010. Therefore, considering these facts, it cannot be held that the petitioner was sleeping over the matter and was negligent in pursuing his claim. Thereafter, he submitted his representations to the authorities in 2008 and 2009 after he returned to Manipur in 2007 and having obtained no response, has filed this writ petition in 2010. Therefore, considering these facts, it cannot be held that the petitioner was sleeping over the matter and was negligent in pursuing his claim. Accordingly, this Court decides this issue against the Manipur University and holds that the petition is not hit by delay and laches and therefore, is maintainable. The facts obtaining in Saikhom Jatishwar Singh (supra) are not similar where the petitioner therein did not pursue his claim diligently. No other circumstances other than submission of a representation has been shown in that case for explaining the delay in approaching the Court in that case. This Court is of the view that the petitioner has properly explained his delay in approaching this Court and accordingly holds that the decisions of the Hon'ble Supreme Court cited by Mr. Sahu will not come in the way of the petitioner's claim." 8. As regards review of an order passed under Article 226 of the Constitution of India, there is nothing in Article 226 which excludes the High Court from exercising the power of review. The Court has plenary jurisdiction to review the order to prevent miscarriage of justice by correcting any grave error committed by it. There is no hard and fast rule governing applications relating seeking review of a judgment rendered under Article 226 of the Constitution. In exercise of its powers of review, the High Court can re-open the case and re-hear the entire matter. The Hon'ble Supreme Court in S. Nagaraj v. State of Karnataka, 1993 Supp.(4)SCC 595 observed that, "19. Review literally and even judicially means re-examination or re-consideration. 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. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice............................................................................................................................. " However, while exercising such power, the High Court cannot remain oblivious of the principles of review as contained in Order 47 Rule 1 of the Code of Civil Procedure, 1908 as well as the rules framed by the High Court. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice............................................................................................................................. " However, while exercising such power, the High Court cannot remain oblivious of the principles of review as contained in Order 47 Rule 1 of the Code of Civil Procedure, 1908 as well as the rules framed by the High Court. Though provision of the Civil Procedure Code are not applicable to writ proceedings, the Courts do observe the principles contained in the Code. Order 47 Rule 1 CPC which deals with review applications provides that a review application would lie only on the discovery of new and important evidence which, after exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. Keeping in mind the aforesaid provision, we may proceed to examine the review petition at hand. Referring to the first situation arising out of discovery of a new and important fact or evidence which may have a bearing on the merit of the case, it may be noted that even if the said letter dated 22-04-2002 submitted by the petitioner to the University authority is considered to have been discovered later on which was not within the knowledge of the Manipur University and hence, could be considered now, this Court is of the view that the existence of the said letter would not make any difference as far as the decision of this Court is concerned as reflected in para 23 and 24 as quoted above. This Court found merit in the contention of Mr. Rarry, learned counsel for the writ petitioner (respondent herein), that even though the UGC adopted the policy for grant of two advance increments in the year 2001, the Government of Manipur, under whose authority Manipur University was functioning at the relevant time, had decided to adopt the said UGC scheme only in the later part of the year 2004. Rarry, learned counsel for the writ petitioner (respondent herein), that even though the UGC adopted the policy for grant of two advance increments in the year 2001, the Government of Manipur, under whose authority Manipur University was functioning at the relevant time, had decided to adopt the said UGC scheme only in the later part of the year 2004. Therefore, even if the writ petitioner knew about the existence of the UGC scheme in the year 2002 as indicated by the letter submitted by the writ petitioner in 2002 as produced by the review petitioners in this review petition, till the Government took the decision to implement the scheme in the year 2004, the petitioner could not have obtained any benefit out of the said UGC scheme. The facts that the petitioner was pursuing a fellowship for 2(two) years with effect from 01-03-2004 to 30-02-2006 in Mysore for submission of Research Monograph, that the petitioner claimed the two advance increments after returning from Mysore in the year 2007 and filed a writ petition in the year 2010 have not been controverted. The new fact or material which has been introduced now is that the petitioner knew about the UGC scheme as far back in the year 2002 since he had applied for advance increments already in 2002. Even if it is assumed that the petitioner knew about the scheme in 2002, he could not have obtained any benefit till it was implemented by the State Government. It has been already recorded that the State Government implemented the Scheme only in the later part of 2004. Therefore, this Court is of the view that discovery of this new fact will not make any difference as far as the conclusion arrived at by the Court is concerned. Thus, this Court is of the view that the claim of the petitioner cannot be debarred on the ground of delay and laches. 9. Further as regards the contention raised by Mr. B.P Sahu, learned senior counsel now that, the plea of the petitioner that the scheme was implemented only in 2004 is not correct as it was already in existence since 2001, this is a contention which is raised for the first time in this review petition, which is not permissible. This new ground cannot be raised in a review petition as it does not come within the purview of a review petition. This new ground cannot be raised in a review petition as it does not come within the purview of a review petition. The Court had already observed that the State Government had implemented the UGC scheme in the later part of 2004. This factual position cannot be re-agitated in this review petition. If this be an erroneous decision by this Court, it cannot be rectified in a review petition, but it is to be agitated before the appellate forum. 10. As regards the other proposition of law that review will be applicable for correction of any mistake or error apparent on the face of the record, this Court finds that existence of such mistake or error apparent on the face of the record in the judgment has not been shown in the review petition. On the other hand, as stated above, the contention raised by Manipur University now that the UGC Scheme was already in existence and implemented in the year 2001 and not in 2004 as contended by the writ petitioner, would involve a detailed re-examination of the issues which would amount to re-hearing of the writ petition which is not within the scope of the review petition. Any rehearing on merit apparently to rectify an erroneous decision ought to be left to the domain of the appellate Court, which the review petitioner may invoke, if so advised. Therefore, this Court is of the view that no case has been made out for review of the judgment and order dated 6.1.2015. 11. For the reasons discussed above, this Court holds that there is no merit in this review petition and accordingly, the same is dismissed.