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2019 DIGILAW 750 (GAU)

State of Assam v. Okram Prasanta Singha

2019-06-14

A.K.GOSWAMI, MANISH CHOUDHURY

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JUDGMENT : A.K. Goswami, J. 1. Heard Mr. R.K.D. Choudhury, learned Senior Government Advocate, Assam, appearing for the review petitioner. We have also heard Mr. O.P. Singha, the opposite party-in-person in the review petition. 2. Three Public Interest Litigations, namely, PIL No. 48/2015, PIL No. 79/2015 and PIL No. 106/2015 and one writ petition being WP (C) No. 3101/2014 were disposed of by a common judgment and order dated 15.10.2015. This review petition is filed by the State of Assam, represented by the Chief Secretary to the Government of Assam in connection with the directions contained at Paragraph 5 of the judgment, rendered in connection with PIL No. 106/2015. 3. In PIL No. 48/2015 and PIL No. 79/2015, amongst others, prayer was made to set aside and quash the selection process initiated by the Assam Public Service Commission (APSC) on the basis of an advertisement No. 6/2013 dated 11.08.2013 and to initiate a fresh combined competitive Examination (CCE) as well as to direct an enquiry to be conducted by the Central Bureau of Investigation (CBI) regarding anomalies in CCE, 2013 and the corruption charges against the Chairman, namely, Shri Rakesh Kumar Paul, who was arrayed in the said two PILs as respondent No. 6. In PIL No. 106/2015, the petitioner challenged a report submitted by "Subhash Das Enquiry Committee" which was constituted to go into the malpractices and anomalies in the conduct of examinations by the APSC on the ground that the Committee did not conduct a fair and proper enquiry. In WP (C) No. 3101/2014, prayer was made for setting aside and quashing the select list dated 06.02.2014 of Combined Competitive (Preliminary) Examination, 2013 and to appoint an Expert Committee to look into the anomalies in the official answer keys, etc. and to re-evaluate the answer scripts and thereafter to publish a fresh select list. 4. It is stated at the bar that Shri Rakesh Kumar Paul had filed 4(four) special leave petitions against the common judgment & order dated 15.10.2015 before the Hon'ble Supreme Court, which were numbered as Special Leave Petition (C) Nos.31220/2015, 31991/2015, 32602/2015 and 32603/2015. Initially, by an order passed on 20.11.2015, an ad-interim ex parte stay order was granted staying the judgment & order dated 15.10.2015. Subsequently, the Special Leave Petitions (SLPs) were dismissed by an order dated 22.03.2018. 5. The instant review petition was filed on 25.02.2019. 6. Initially, by an order passed on 20.11.2015, an ad-interim ex parte stay order was granted staying the judgment & order dated 15.10.2015. Subsequently, the Special Leave Petitions (SLPs) were dismissed by an order dated 22.03.2018. 5. The instant review petition was filed on 25.02.2019. 6. This Court, in the attending facts and circumstances of the case and having regard to the materials on record, by the common judgment and order dated 15.10.2015 directed CBI to hold a preliminary enquiry into the allegations of corruption against Shri Rakesh Kumar Paul, the then Chairman of the APSC regarding his income and properties owned by him, his kith and kin and also by one Shri Sanjay Saha with a further direction to submit the report within a period of 6(six) months. Another significant direction that was issued was to nominate a retired Hon'ble Judge of this Court to head a Commission within a period of 1(one) month. 7. As the review is sought in respect of the directions contained in Paragraph 5 to nominate a retired Hon'ble Judge of this Court to head a Commission, it will be most appropriate to quote Paragraph 5 in its entirety:- "5. The petitioner's averments in PIL 106/2015 disclose that the State Government has constituted an enquiry committee to be headed by a retired Judge of this Court to enquire into the allegations of anomalies and malpractices. The allegations with regard to anomalies and malpractices cannot be efficaciously decided in writ petition, the allegations relate to factual matters. In that view, the Commission headed by a retired Judge of this Court would be the appropriate forum to go into the issues of allegations of anomalies and malpractices in the conduct of examinations. It is just and proper that the petitioners can put forth their case before the Commission. It is stated that the Judge is yet to be nominated by the Government. We direct the Government to nominate the Judge within one month. The terms of reference framed for Subhas Das Committee should also be framed for the Commission to examine in addition the terms of reference should be comprehensive to include any type of malpractices in paper setting, valuation, moderation and viva-voce including the competence of experts chosen for paper-setting and valuation should also be part of the terms of reference. The terms of reference framed for Subhas Das Committee should also be framed for the Commission to examine in addition the terms of reference should be comprehensive to include any type of malpractices in paper setting, valuation, moderation and viva-voce including the competence of experts chosen for paper-setting and valuation should also be part of the terms of reference. Therefore, with the appointment of the Commission, the question of irregularities and malpractices in conducting the examination shall have to be decided by the Commission to be headed by a retired Judge of this High Court." 8. Mr. Choudhury has submitted that the PIL in question was filed on 08.10.2015 and the same came to be disposed of on 15.10.2015 and, therefore, the review petitioner did not have the opportunity to place the correct facts on record. It is submitted by him that this Court erroneously held that the State Government had constituted an Inquiry Committee to be headed by a retired Hon'ble Judge of this Court and, therefore, the very foundation of the order culminating in the direction to nominate the Judge within 1(one) month, with terms of reference as indicated therein, is an error apparent on the face of the record requiring review of the said order. He has also submitted that notwithstanding the fact that SLPs preferred against the said judgment & order dated 15.10.2015 had been dismissed by the Hon'ble Supreme Court, the same will not come in the way of entertaining this review petition as leave was not granted in the SLPs to file appeal and, therefore, the order of this Court dated 15.10.2015 had not merged with the order of the Hon'ble Supreme Court. To support his contention, he has placed reliance on a judgment of the Hon'ble Supreme Court in the case of Kunhayammed and Others vs. State of Kerala and Another, (2000) 6 SCC 359 . 9. Mr. Singha, the opposite party in person, has submitted that assuming that the review petition is maintainable, there is inordinate delay in filing of this review petition as from the date of the judgment till the date of filling of the review petition, more than 3(three) years 6(six) months had elapsed and, therefore, the review petition is liable to be rejected without considering the same on merits. It is submitted that in the petition he had brought allegations of large scale anomalies and malpractices in the examinations conducted by the APSC and it was in that context, averment was made by him in the petition that the Chief Minister of the State had issued an order for instituting an Inquiry Commission under the provisions of Commissions of Inquiry Act, 1952 to be headed by a retired Hon'ble Judge and it was accordingly pleaded that till filing of the petition, no Hon'ble Judge had been nominated. He has submitted that that a decision had been taken to institute a Commission of Inquiry into the allegations made against the APSC and the then Chairman of the APSC is self-evident from the letter dated 23.07.2015 addressed by the Chief Minister of the Government of Assam to His Excellency, the Governor of Assam (Annexure-4 of the review petition) and, therefore, it is too late in the day to contend that the directions given by this Court for nomination of a retired Hon'ble Judge towards constitution of the Commission, is without any foundation. Accordingly, he submits that in any view of the matter, the review petition is liable to be dismissed. 10. In Kunhayammed (supra), the Hon'ble Supreme Court had observed that doctrine of merger and the right of review are closely interlinked concepts. In that context, it was laid down that if the judgment of the High Court was assailed by way of a special leave, and special leave is granted and thereafter the appeal is disposed of, either with reasons or without reasons, by affirmance or otherwise, the judgment of the High Court merges with the order of the Hon'ble Supreme Court and in that circumstance, review will not lie before the High Court. On the other hand, when the SLP is dismissed, there is no merger of the order of the High Court with that of the Hon'ble Supreme Court and, therefore, the aggrieved party is not deprived of any statutory right of review. 11. The relevant extract of the order dated 22.03.2018 passed by the Hon'ble Supreme Court in Special Leave Petition (C) Nos. 31220/2015, 31991/2015, 32602/2015 and 32603/2015 reads as follows:- "1. Heard learned counsel for the parties. 2. 11. The relevant extract of the order dated 22.03.2018 passed by the Hon'ble Supreme Court in Special Leave Petition (C) Nos. 31220/2015, 31991/2015, 32602/2015 and 32603/2015 reads as follows:- "1. Heard learned counsel for the parties. 2. It is stated by learned counsel for the respondents that First Information Report (FIR) has been registered, the petitioner has been arrested, charge-sheet has been filed and sanction to prosecute has been received. 3. In view of the subsequent development, we are not inclined to make interference with the direction to hold preliminary inquiry, that had been questioned in the instant petitions. Consequently, the special leave petitions are dismissed. Pending applications stand disposed of." 12. In the SLPs in question in the instant case, special leave was not granted and the same were dismissed and, therefore, on the principles enunciated in Kunhayammed (supra), the order of this Court has not merged with that of the Hon'ble Supreme Court and, therefore, this review petition cannot be jettisoned on the ground that the same is not maintainable. 13. It is beyond the pale of any controversy that more than 3(three) years 6(six) months had gone by from the date of the judgment sought to be reviewed. Even from the date of dismissal of the SLPs, by the time review petition came to be filed, another 11(eleven) months had passed by. There is a feeble attempt at Paragraph 8 of the review petition to explain why delay had taken place. It is stated in Paragraph 8 as follows:- "8. That the petitioner respectfully states that although the Judgment and Order was passed on 15.10.2015, the Review petition could not be filed earlier as the Judgment and Order dated 15.10.2015 remained stayed by the Hon'ble Apex Court by Order dated 20.10.2015 passed in SLP No. 31220/2015 (at Annexure 2 above). The SLP No. 31220/2015 was dismissed by the Hon'ble Apex Court by Order dated 20.03.2018 (Annexure-3 above). Thereafter the petitioner took steps for implementation of the Judgment and Order dated 15.10.2015 passed in PIL No. 106/2015. But while processing the matter, after verification of the records came to know that in fact the Inquiry Commission was not constituted by the Government earlier and therefore the appointment cannot be made as directed by the Hon'ble Court in its Judgment and Order dated 15.10.2015." 14. But while processing the matter, after verification of the records came to know that in fact the Inquiry Commission was not constituted by the Government earlier and therefore the appointment cannot be made as directed by the Hon'ble Court in its Judgment and Order dated 15.10.2015." 14. On examination of the averments extracted hereinabove gives the impression that during the period when the SLPs were pending before the Hon'ble Supreme Court, the matter was not even looked into and it was only after the dismissal of the SLPs on 22.03.2018, records were verified and then it was noticed that Inquiry Commission was not constituted by the Government earlier. It is also noticed that the date of the stay order as well as the date of dismissal of the SLPs are wrongly recorded. 15. Though there is laches on the part of the petitioner in not attending to the matter with the promptitude that it deserved, we are of the opinion that in a matter of the present nature, where the very direction to nominate a retired Hon'ble Judge of the High Court is sought to be questioned on the ground that it was based on non-existent facts, it will be appropriate to consider the review petition on merit. 16. Appointment of Commission under the Commissions of Inquiry Act, 1952 is dealt with in Section 3. Section 3(1), which is relevant for our purpose, reads as follows:- "3. Appointment of Commission - (1) Save as otherwise provided in the Lokpal and Lokayuktas Act, 2013, the appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by each House of Parliament or, as the case may be, the Legislature of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly. Provided that where any such Commission has been appointed to enquire into any matter xxx xxx xxx" 17. Provided that where any such Commission has been appointed to enquire into any matter xxx xxx xxx" 17. A reading of the above provision would go to show that Commission of Inquiry may be appointed on two eventualities: (i) the appropriate Government may, if it is of the opinion that it is necessary so to do, appoint the Commission of Inquiry for the purpose of making an enquiry into a definite matter of public importance and (ii) if there is a resolution in this behalf passed by each House of Parliament or as the case may be, the Legislature of the State, the appropriate Government mandatorily has to appoint a Commission by appropriate Notification in the Official Gazette. 18. The ground No. (a), which is the only ground to sustain the review petition, reads as follows:- "(a) For that there is error apparent on the face of the record in the impugned Judgment and Order dated 15.10.2015 in as much as the Government has not constituted the Inquiry Commission till date although a decision for constitution of a Inquiry Commission was taken earlier. However, without considering the aforesaid correct facts on the basis of petitioner's averments in PIL No. 106/2016, the Hon'ble Court directed the Government to nominate a retired Judge of the Hon'ble Court as head of the Inquiry Commission within a period of 1 month. Therefore, the Judgment and Order dated 15.10.2015 is liable to be reviewed." (Emphasis supplied) 19. The extract of the letter dated 23.07.2015, which is annexed as Annexure-4 to the review petition, reads as follows:- "Tarun Gogoi Chief Minister, Assam Guwahati D.O. No. AAI/319/2011/Pt-III/61 July 23, 2015 Dear Sri Acharyaji, Kindly refer to your D.O. letter No. GSA.21/2010/237 dated 7th July, 2015. It has been decided to institute a Commission of Inquiry under the appropriate provisions of the Commission of Inquiry Act for making inquiry into the allegations made against APSC and Chairman, APSC etc. With kind regards. Yours sincerely Sd/- illegible (Tarun Gogoi) Shri P.B. Acharya Shri P.B. Acharya Raj Bhavan, Guwahati." 20. A perusal of the ground No. (a) demonstrates in unmistakable terms that a decision for constitution of an Inquiry Commission was taken earlier. With kind regards. Yours sincerely Sd/- illegible (Tarun Gogoi) Shri P.B. Acharya Shri P.B. Acharya Raj Bhavan, Guwahati." 20. A perusal of the ground No. (a) demonstrates in unmistakable terms that a decision for constitution of an Inquiry Commission was taken earlier. It is also to be noticed that decision taken was communicated by the Chief Minister of Assam to His Excellency, the Governor of Assam vide his letter dated 23.07.2015, which was in response to His Excellency, the Governor of Assam's D.O. letter dated 07.07.2015. Formation of requisite opinion for appointment of a Commission is implicit in the decision. It may be that in the said letter, appointment of a retired Hon'ble Judge of this Court to head the Commission was not indicated. However, when the decision to appoint a Commission under the Commissions of Inquiry Act, 1952 had been taken, we are of the opinion that no case is made out to review the judgment and order dated 15.10.2015. 21. Accordingly, the review petition is dismissed. The review petitioner will comply with the directions in the judgment and order dated 15.10.2015 within a period of 1(one) month from today.