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Gauhati High Court · body

2015 DIGILAW 141 (GAU)

Sh. C. Lawmzuala v. Mizoram University and Anr.

2015-02-07

T.VAIPHEI

body2015
This review petition is directed against the order dated 30-4-2013 passed by this Court in WP(C) No. 117 of 2011 dismissing the writ petition of the review-petitioner. 2. The petitioner had filed WP(C) No. 117/2011 before this Court challenging the validity of the Resolution No. EC-27-5(2), dated 29-3- 2011 passed by the respondent No. 2 resolving to treat the Mizoram University Recruitment Rules, 2010 in respect of non-teaching posts including the post of Assistant Registrar, Assistant Librarian, Deputy Director of Sports, etc. as null and void, and to amend the 2010 Rules, and of the resolution EC-29-5(17), dt. 15-7-2011 resolving that the petitioner could not be promoted to the said post of Assistant Librarian on the ground that the said Rules, 2010 was not notified nor was it approved by the UGC, and for seeking a direction to allow his promotion to the post of Assistant Librarian as per the recommendation of the DPC in its meeting held on 12-2-2011. 3. This Court dismissed the writ petition by the impugned order and held therein that the review petitioner was not able to make out any case of hostile discrimination; that he was recommended by the DPC which was constituted contrary to law; that the refusal on the part of the respondent-University not to act upon the recommendation of the DPC could not be said to be illegal or arbitrary or discriminatory and that it is a settled proposition of law that a selectee has no indefeasible right of appointment and his selection is liable to be annulled if the same is done contrary to law. 4. An ingenuous attempt is now being made by Mr. C. Lalramzauva, the learned senior counsel for the review-petitioner, to persuade me to review the said order by contending that the revision petitioner has discovered a new evidence, namely, many appointments were made on the basis of the Recruitment Rules, 2010, which were concealed by the respondents and which, after the exercise of due diligence by him, did not come within his knowledge. It is, however, pointed out by Mr. It is, however, pointed out by Mr. N. Sailo, the learned senior counsel for the respondent-University, that the University, acting upon the order of this Court, has already undertaken the recruitment exercise in which the petitioner had applied for the post but was not called for the interview as he did not qualify for the same, and it was only after this that this review petition was belatedly filed by him. According to the learned senior counsel, as the impugned order has been exhausted, this review petition has become infructuous and is liable to be rejected. To fortify his submissions, the learned senior counsel relies on the decision of the Apex Court in State of Nagaland and another v. Touvi Kibami and another, (2003) 8 SCC 671 . According to the learned senior counsel, this Court had rightly dismissed the writ petition. 5. Though a number of arguments have been advanced by the learned senior counsel for the review-petitioner to change my mind, I am afraid, I shall have to agree with the learned senior counsel for the respondent- University. No two cases can be so similar on facts as well as law. In Toulvi Kibami (supra), the promotion of Superintendent Engineer to the post of Additional Chief Engineer in the Department of Public Health and Engineering is governed by the Nagaland Engineering Service Rules, 1977 (Classes I and II) (hereinafter referred to as “the Rules”). Respondent 2 in CA No. 2533 of 1998 (and the appellant in CA No. 2536 of 1998) is a diploma-holder and at the relevant time was working as Officiating Superintendent Engineer. On 26-3-1991, the Government of Nagaland promoted Respondent 2 as Additional Chief Engineer. This promotion was challenged by Respondent 1, who is a degree-holder, by means of a petition under Article 226 of the Constitution on the ground that Respondent 2 was not eligible for being promoted to the post of Additional Chief Engineer as the said post is to be filled up 100 per cent from amongst the degree-holders. This contention of Respondent 1 was accepted by the learned Single Judge of the High Court. Consequently, the promotion of Respondent 2 was set aside. Aggrieved, the State of Nagaland preferred a letters patent appeal which was allowed and the order and judgment of the learned Single Judge was set aside. This contention of Respondent 1 was accepted by the learned Single Judge of the High Court. Consequently, the promotion of Respondent 2 was set aside. Aggrieved, the State of Nagaland preferred a letters patent appeal which was allowed and the order and judgment of the learned Single Judge was set aside. The Division Bench while allowing the appeal directed the State Government to decide whether the diploma-holders could also be promoted to the post of Additional Chief Engineer under the relevant Rules on the basis of they having rendered meritorious service. Consequent upon the said direction of the High Court, the Government took a decision in the year 1997 whereby the Government appropriately amended the relevant Rules on the basis of they having rendered meritorious service. Again, consequent upon the direction of the High Court, the Government took a decision in the year 1997 whereby the Government amended the relevant Rules and brought them in line with the original approved Rules so as to include the reference to eligibility of cases of exceptionally meritorious persons who are diploma-holders for promotion to the post of Additional Chief Engineer with retrospective effect i.e. from 12-9-1996. In that view of the matter, Respondent 2 was promoted to the post of Additional Chief Engineer. In the meantime, Respondent 1 filed an application before the Division Bench for review of the order and judgment dated 4-9-1995. The Division Bench allowed the review petition and dismissed the appeal. It was against the said judgment and order of the High Court dated 8-1- 1998 that the appellants preferred an appeal before the Apex Court. This is what the Apex Court said: “2. Having heard learned counsel for the parties, we are of the view that in view of the subsequent events that had taken place consequent upon the judgment of the Division Bench, the review petition filed by Respondent 1 was not maintainable. In fact the judgment of the Letters Patent Bench was acted upon and it stood exhausted and the review petition was futile. Under such circumstances, the review petition ought not to have been entertained and decided on merits.” 6. In fact the judgment of the Letters Patent Bench was acted upon and it stood exhausted and the review petition was futile. Under such circumstances, the review petition ought not to have been entertained and decided on merits.” 6. In the instant case also, during the pendency of the writ petition, acting upon the impugned order of this Court, advertisement for the post in question was issued, in response whereof the petitioner also submitted his application, but he was not called for the interview as he did not qualify for the post. Under the circumstances, the impugned order has been exhausted and the review petition is futile. Therefore, in terms of the decision in Toulvi Kibami (supra), this review petition cannot be entertained and decided on merit. Since the review petition can be rejected on the afore-stated ground, it is not necessary to deal with the other contentions of the learned senior counsel for the petitioner since a court of law does not decide more than what is necessary. 7. The result of the foregoing discussion is that this review petition is not maintainable and is, therefore, rejected. The parties are, however, directed to bear their respective costs.