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2019 DIGILAW 113 (CAL)

Asma Parveen v. State of West Bengal

2019-01-22

SHEKHAR B.SARAF

body2019
JUDGMENT : 1. This application has been filed by the West Bengal Council of Higher Secondary Education (hereinafter referred to as ‘the Council’) seeking recalling/modification of the order passed by this court on January 3, 2019. 2. Mr. Bhattacharya, learned counsel appearing on behalf of the Council submits that the order dated January 3, 2019 was passed in his absence and the petitioner had not given notice of the inclusion of the matter as an ‘Urgent Motion’ to his client or to him. He submits that the order was passed on the basis of a concession given by the counsel appearing on behalf of the State authorities who was not the person authorized to do so. He further submits that the order directing the Mathematics paper to be treated as the optional elective instead of the Chemistry paper is not permissible in cases of students who have passed in the examination. He submits that Clause 9(2) of the West Bengal Council of Higher Secondary Education Examination Regulation 2006 (hereinafter referred to as ‘the Regulation’) is only applicable to students who have not passed in the examination. In the present case, he submits that the petitioner had passed in the examination and, therefore, there was no question of interchanging of the compulsory elective with the optional elective. Mr. Bhattacharya thereafter relied on a Supreme Court judgment reported in (1999) 4 Supreme Court Cases 396 (Budhia Swain and Others –v-Gopinath Deb and Others) and placed paragraph 8 of the said judgment to submit that a court may recall an order where a mistake has been committed by the court prejudicing a party and/or where a judgment was rendered in ignorance of the fact that a necessary party had not been served. 3. Learned counsel appearing on behalf of the petitioner relies on a Calcutta High Court Judgment passed by the Division Bench in Abhijit Bhadra and Others –v- Union of India and Others reported in 2009 (84) AIC 443: 2009 (22) R.C.R. (Civil) 500 to emphasize that once a court has passed a judgment it becomes functus officio and cannot modify and/or recall its judgment except in cases of typographical errors or mistakes apparent on record. He further relies on the Supreme Court Judgments in State Bank of India & Others –v- S. N. Goyal reported in 2008(8) SCC 92 and Ram Chandra Gingh –v-Savitri Devi and Others reported in 2004(12) SCC 733 to buttress his above argument. 4. I have considered the submissions of respective parties and perused the materials on record. 5. At the very outset it would be prudent to examine the judgment of the Allahabad High Court in Dan Singh Bist –v-Additional Collector, Bijnor and Others reported in AIR 1960 ALL 152 wherein the scope of Section 151 of the Code of Civil Procedure in relation to the inherent power of the Court to correct orders and judgments passed by it, on its own motion or on the application of any of the parties has been dealt with in detail. The relevant paragraphs of the judgment are delineated below: “30. The state of the law on S. 151, C. P. C. may therefore be summarized thus. The section gives statutory recognition to the inherent power of the Court to make such orders as may be necessary for the ends of justice, and in the absence of any specific law to the contrary the Court is entitled to exercise this power. Indeed, to recall and cancel an invalid order, or an order passed inadvertently or by oversight, is not simply permitted but is the duty of the Court, which should always be vigilant not to allow any act of itself or any mistake of counsel do wrong to the suitor. How exactly the error has occurred is irrelevant, nor for the revocation of an erroneous order any cause other than the irregularity of the order itself need be considered. A mere mistake of law is normally not a sufficient ground for correcting a wrong order, but if the mistake is an obvious one due to failure to notice a particular piece of legislation the Court has the power to make the necessary correction and should not be hesitant in exercising that power. As to the aggrieved party, it has a right to choose between approaching the Court itself under S. 151 and going to the Court of Appeal (assuming of course that an appeal is maintainable). 31. As to the aggrieved party, it has a right to choose between approaching the Court itself under S. 151 and going to the Court of Appeal (assuming of course that an appeal is maintainable). 31. From the discussion attempted in the foregoing my answer to the question posed in the opening paragraph of this judgment is that the High Court does possess the power to recall and correct an invalid or manifestly erroneous order passed by it in the exercise of its jurisdiction under Art. 226 in respect of the enforcement or vindication of civil rights, and that so far as our High Court is concerned this power is derived not from S. 114 and O. XLVII but from S. 151 of the Code.” 6. The Supreme Court in Budhia Swain and Others (supra) relying on A. R. Antulay Vs. R. S. Nayak reported in AIR 1988 SC 1531 further clarified the legal position with regard to recalling of an order. The ratio of the above judgment has been set out in paragraphs 7, 8 and 9 that are provided below: “7. In Corpus Juris Secundum (Vol. XIX) under the chapter “Judgment – Opening and Vacating” (paras 265 to 284, at pp. 487-510) the law on the subject has been stated. The grounds on which the courts may open or vacate their judgments are generally matters which render the judgment void or which are specified in statutes authorizing such actions. Invalidity of the judgment of such a nature as to render it void is a valid ground for vacating it at least if the invalidity is apparent on the face of the record. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter a judgment may be vacated on that ground. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A motion to vacate will not be entered when the proper remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppels. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppels results. 8. A motion to vacate will not be entered when the proper remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppels. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppels results. 8. In our opinion a tribunal or a court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party, or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppels or acquiescence. 9. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation.” 7. The power of the High Court to recall its own order is no longer res integra and the principles have been carved out by various judgments of this High Court and the Supreme Court. The judgments discussed above clearly lay down the law that the power to recall a judgment is not to be exercised when the grounds for reopening of the proceedings or vacating the judgment was available to be pleaded and argued at the instance of one of the parties when the original order was passed. The judgments discussed above clearly lay down the law that the power to recall a judgment is not to be exercised when the grounds for reopening of the proceedings or vacating the judgment was available to be pleaded and argued at the instance of one of the parties when the original order was passed. Further, the right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence by either of the parties. 8. This power of recalling an order when a mistake has been committed by the court prejudicing a party is in fact not just the right of the court but a duty of the court. Any invalid order passed inadvertently or by oversight is required to be recalled if any of the conditions provided in paragraph 8 of the Supreme Court judgment in Budhia Swain and Others (supra) is fulfilled. 9. In the present case, it is clear that the court had proceeded on a belief that the counsel appearing on behalf of the State authorities were also authorized to appear on behalf of the Council. In fact, the order itself notes as follows:-‘learned counsel appearing on behalf of the Council fairly submits that the rules do allow the flexibility and the same is allowed’. 10. Another fact to be noted is that the matter had been included in the list without notice to the main answering respondents, that is, the Council. The court had proceeded on the basis of a submission made by the counsel appearing on behalf of the State that the Regulation allow for a particular flexibility and thereafter passed the order. It has now come to the notice of the court that the Regulation do not allow such a flexibility, and in fact, cannot be applicable to students who have passed the examination. The choice of interchanging a compulsory elective with an optional elective is only available to candidates who have not passed the examination. Clause 9 of the Regulation is provided below for the sake of clarity. “9. Option of changing compulsory elective subject as compulsory optional subject etc. The choice of interchanging a compulsory elective with an optional elective is only available to candidates who have not passed the examination. Clause 9 of the Regulation is provided below for the sake of clarity. “9. Option of changing compulsory elective subject as compulsory optional subject etc. (1) If a candidate fails to obtain minimum pass marks in any compulsory subject excepting Environmental Education for the reasons of deficiency of less than five per centum of full marks, he shall to make up the deficiency in the compulsory subject, be given credit by transfer of marks from the highest marks obtained by hum in a compulsory subject excepting Environmental Education. (2) Notwithstanding any contained in regulations 6, 7 and 8, a regular candidate or continuing candidate or special candidate who cannot be declared passed in the examination by reason of his - (a) not appearing in the examination of a compulsory elective subject, or (b) failure in obtaining the minimum pass marks in a compulsory elective subject, but has obtained the minimum pass marks in the optional elective subject, shall be declared passed by giving him the benefit of interchanging the compulsory elective subject as the optional elective subject and vice versa: Provided that if a candidate does not, for any reason, intend to take the benefit of interchanging the subjects, he shall, through his institution, intimate his intention as such, and surrender his mark-sheet for necessary correction therein, to the Council within thirty days from the date of publication of results.” 11. In light of the above observations made, I am of the view that I am duty bound to recall my earlier order that had proceeded on the acquiescence of counsel appearing on behalf of the State and accordingly, on a wrong footing that compulsory elective subjects could be inter changed with optional elective subjects for all students. 12. On going through the prayers in the writ petition, I find that the main prayer in the writ petition is that the petitioner may be awarded three (3) grace marks in the theory paper of Chemistry and in the alternative the petitioner should be allowed to reappear in the Chemistry examination to be carried out in 2019. 13. 12. On going through the prayers in the writ petition, I find that the main prayer in the writ petition is that the petitioner may be awarded three (3) grace marks in the theory paper of Chemistry and in the alternative the petitioner should be allowed to reappear in the Chemistry examination to be carried out in 2019. 13. In light of the above observations, the order dated January 3, 2019 is recalled with a direction on the Council to allow the writ petitioner to reappear in the Chemistry examination in the West Bengal Council of Higher Secondary Education to be carried out this year, subject to compliance of all formalities by the writ petitioner. 14. The application being CAN 623 of 2019 is disposed of. 15. All parties are to act on the server copy of this order.