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2017 DIGILAW 550 (GAU)

Tanya Padung v. Yabi Bagra

2017-05-08

SUMAN SHYAM

body2017
JUDGMENT : Suman Shyam, J. Heard Mr. N. Ratan, learned counsel for the review applicant. Also heard Mr. D. Panging, learned counsel representing the opposite party/writ petitioner. None appears for the opposite party Nos. 2 to 6. 2. This application has been filed with a prayer for reviewing/recalling the judgment and order dated 16.12.2015 passed in W.P.(C) No. 421(AP)/2014 whereby, the learned Single Judge had set aside the order dated 14.11.2013 appointing her to the post of District Training Organiser (DTO) of Bharat Scouts & Guides for East Siang District. 3. The writ petitioner was a contender for the post of DTO which fell vacant due to superannuaction of one Sri H.B. Singh. According to the opposite party/writ petitioner, the review applicant/respondent No. 6 did not possess the requisite qualification as per the rules, whereas it is the writ petitioner/opposite party who alone was eligible for appointment against the said post. Accepting the aforesaid contention of the opposite party/ writ petitioner, the learned Single Judge had passed the judgment and order dated 16.12.2015 allowing the writ petition by setting aside the order dated 24.11.2013 and issuing a mandamus upon the Director of School Education, Govt. of Arunachal Pradesh to consider the case of the petitioner for appointment to the post of DTO as early as possible. 4. By referring to the grounds stated in the review application, Mr. Ratan, learned counsel for the review applicant submits that notice of the writ petition was never received by the review applicant. According to Mr. Ratan. the Director of Secondary Education, Govt. of Arunachal Pradesh had issued a circular dated 28.11.2014, inter alia, laying down that a candidate should be Junior Teacher (JT) for the purpose of being appointed as DTO under the Bharat Scouts & Guides and the said circular was to come into effect from 28.11.2014. Besides the above, the Director has also earlier issued instruction on 28.10.2013 lying down the criteria for filling up the post of DTO wherein, it has been specifically mentioned that a candidate should be holding the post of JT. The opposite party/ writ petitioner admittedly did not possess the said qualification. However, since the notice of the writ petition was not served upon the review applicant, who was impleaded as respondent No. 6 in the writ petition, these material could not be brought to the notice of this Court. Mr. The opposite party/ writ petitioner admittedly did not possess the said qualification. However, since the notice of the writ petition was not served upon the review applicant, who was impleaded as respondent No. 6 in the writ petition, these material could not be brought to the notice of this Court. Mr. Ratan submits that since the impugned judgment and order dated 16.12.2015 has been passed without considering the aforesaid materials thereby holding that the qualification of JT was not essential for the petitioner to be appointed to the post of DTO, an error apparent on the face of the record has crept in the said judgment warranting review of the same. 5. Opposing the arguments advanced by the applicant's counsel, Mr. D. Panging, learned counsel for the opposite party/writ petitioner contends that the review applicant and the opposite party/writ petitioner being employees serving in the same office and in view of the interim order dated 19.11.2014 passed by this Court in the connected writ petition restraining the respondents from regularising her appointment, it is simply not possible that the review applicant did not have any knowledge about the pendency of this case. By referring to the order dated 21.5.15 passed in W.P.(C) No. 421(AP)/2014, whereby presumption of service of notice upon the review applicant was drawn by the Court, Mr. Panging submits that in the absence of any prayer seeking review of the order dated 21.05.2015, the present petition would not be maintainable. 6. On the merits of the review application, Mr. Panging further submits that the learned Single Judge has passed the impugned judgment and order by taking note of the relevant provision of the Bharat Scouts & Guides Rules which were holding field on the date of appointment of the review applicant and therefore. the subsequent circular dated 28.11.14 would not have any bearing on the facts and circumstances of the present case. On such ground. Mr. Panging submits that no case for review of the judgment and order has been made out and therefore, the review' petition is liable to be dismissed with cost. 7. I have considered the submission made by the learned counsel for the parties and have also examined the record. From the record of W.P.(C) No. 421(AP)/2014, 1 find that steps by registered post with A/D was taken for service of notice upon the review' applicant/respondent No. 6. 7. I have considered the submission made by the learned counsel for the parties and have also examined the record. From the record of W.P.(C) No. 421(AP)/2014, 1 find that steps by registered post with A/D was taken for service of notice upon the review' applicant/respondent No. 6. When the A/D card did not return back, by order dated 21.5.15, presumption of service of notice was drawn upon the said respondent. The learned Single Judge had therefore, proceeded to finally hear and dispose of the writ petition. It is no doubt true that when notice is sent by registered post with A/D in the correct address under Section 27 of the General Clauses Act. 1897 the Court is empowered to draw presumption of service of notice. However, such presumption of service of notice would be rebuttable in nature. The possibility of the notice sent by post being un-delivered to the correct addressee cannot he altogether ruled out and therefore, it would not be wholly impermissible for the affected party to take the plea that no notice was actually received by him/her. The opposite party has failed to produce postal evidence establishing service of notice upon the review applicant. There is also nothing on record to indicate that the review petitioner/respondent No. 6 had actually received the notice in connection with the writ I petition. As such, having regard to the statement made in the application, the plea of the review applicant that no notice had been received by her has to be accepted by this Court as the correct position of fact. 8. Coming to the question of relevant materials not being produced before the Court it may be noted herein that by the impugned judgment and order 16.12.2015, the learned Single Judge had set aside the appointment of the review applicant and directed that the case of the writ petitioner/ opposite party be considered for appointment to the post of DTO. Such an order was passed on the assumption that qualification of holding the post of JT was not required under the rules. However, a perusal of the Govt. circular dated 28.11.2016 indicates otherwise. Such an order was passed on the assumption that qualification of holding the post of JT was not required under the rules. However, a perusal of the Govt. circular dated 28.11.2016 indicates otherwise. Even assuming that the said circular was not in operation on 14.11.2013, on which date the officiating appointment was made in favour of the review applicant/respondent No. 6, even in that case, the instruction issued by the Director of School Education on 28.10.2013 lying down the criteria for appointment of DTO whereby it has been categorically mentioned that holding the post of JT would he essential criteria, cannot be completely ignored. Had those materials been placed on record, it is difficult to presume as to whether the judgment and order dated 16.12.2015 would have been passed in the present form or not. Non-consideration of such vital facts, therefore, raises a question on the soundness of the judgment and order passed by the learned Single Judge. 9. Having regard to the facts and circumstances of the ease, I am of the view that the grounds set out in the review application constitutes sufficient reason within the meaning of Order XLVII Rule 1 of the CPC meriting recall review of the said order. It is ordered accordingly. The judgment and order dated 16.12.15 is hereby recalled. Review application stands allowed. Registry is directed to list the writ petition in the next week.