KANDARPA BAISHYA S/O LATE BANTI RAM BAISHYA v. KESHAB BAISHYA S/O SHRI LAL MOHAN BAISHYA
2025-01-09
MICHAEL ZOTHANKHUMA
body2025
DigiLaw.ai
JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. K.N. Choudhury, learned Sr. Counsel for the review petitioner assisted by Mr. R. Sarma. Also heard Mr. S.K. Roy, learned counsel for the respondent No. 1 and Mr. S. Dutta, learned counsel for the respondent No. 2. 2. The review petitioner has put to challenge the impugned judgment and order dated 26.09.2023 passed in WP (C) No. 4451/2022, by which this Court has set aside the appointment of the review petitioner to the post of Gaon Pradhan of Sanpara Parbat Village, as he was found ineligible to have participated in the selection process, due to him being in a political party at the time of the selection process. Further, this Court had also found that the respondent No. 1/writ petitioner, who was the son of the earlier Gaon Pradhan, had not been given marks at the time of interview in terms of Clause-G of the Advertisement dated 01.12.2021. 3. The facts of the case in brief is that the review petitioner and the respondent No. 1/writ petitioner had participated in the selection process for appointment as Gaon Pradhan. The review petitioner was selected as Gaon Pradhan of Sanpara Parbat Village on culmination of the selection process. 4. The respondent No. 1/writ petitioner made a challenge to the appointment of the review petitioner vide WP (C) No. 4451/2022, on the ground that the review petitioner being a member of a political party at the time of his selection as Gaon Pradhan, he could not have been selected as Gaon Pradhan under Clause C(3) of the advertisement. The respondent No. 1 had also taken a stand that the respondent No. 1 should have been awarded marks, being a family member of the earlier Gaon Pradhan, in terms of Clause-G of the Advertisement dated 01.12.2021, which was not done. The other grounds taken in the writ petition by the respondent No. 1, while challenging the selection of the review petitioner, was that the review petitioner was not a resident of Sanpara Parbat Village and that preference was to be given to the family member of the Gaon Pradhan for appointment to the post of Gaon Pradhan. 5.
The other grounds taken in the writ petition by the respondent No. 1, while challenging the selection of the review petitioner, was that the review petitioner was not a resident of Sanpara Parbat Village and that preference was to be given to the family member of the Gaon Pradhan for appointment to the post of Gaon Pradhan. 5. This Court, vide judgment and order dated 26.09.2023 passed in WP (C) No. 4451/2022, held that the respondent No. 1 being the son of the earlier Gaon Pradhan, it was incumbent on the part of the State respondents to have considered giving marks to the petitioner at the time of interview, in terms of Clause G of the advertisement. Further, as the review petitioner was found to have resigned from the membership of the Gaon Panchayat only and as he had not resigned from the political party he belonged to, at the time of his selection as a Gaon Pradhan, the selection of the review petitioner as Gaon Pradhan was found to be illegal and was set aside. 6. Mr. K.N. Choudhury, learned Sr. Counsel for the petitioner submits that the review petitioner had resigned from the political party vide letter dated 25.11.2021 and the review petitioner had been released from the primary membership of the said political party on 25.11.2021. However, the review petitioner could not produce the said documents at the time of disposal of the writ petition, as he had misplaced the said letter. It was only in the last week of October, 2023 that the review petitioner found the said resignation letter dated 25.11.2021, while searching for some other documents in his personal file. 7. The learned Sr. Counsel for the review petitioner further submits that as per the information provided to the review petitioner vide letter dated 30.09.2023 and the annexures therein by the Addl. District Commissioner, Kamrup, in reply to the information sought for by the review petitioner under the RTI Act, 2005, the final evaluation sheet signed by all the three members of the Selection Committee and the individual evaluation sheets made by the individual members of the Selection Committee, showed that the respondent No. 1/writ petitioner had been allotted 10 out of 10 marks by all the members at the time of interview, for being a family member of the Gaon Pradhan. 8.
8. The review petitioner’s counsel submits that as the said documents referred to above could not be produced before this Court at the time of disposal of the writ petition, an injustice had been caused to the review petitioner, which can be rectified by way of the review petition. He submits that in view of the above documents which have been produced by way of the review petition, which takes out the wind from the sails of the ship of the respondent No. 1, the impugned judgment and order dated 26.09.2023 passed in WP (C) 4451/2022 should be set aside. 9. Mr. S.K. Roy, learned counsel for the respondent No. 1/writ petitioner submits that the review petition should be dismissed, as the review petitioner has never made any averment in his affidavit-in-opposition, filed in pursuant to the writ petition, that he had resigned from the primary membership of the political party vide letter dated 25.11.2021. Further, there is no averment made by the review petitioner in the present review petition, with regard to the resignation letter dated 25.11.2021, that he had discovered a new and important matter or evidence, after the exercise of due diligence, which was not within the applicant’s knowledge or could not be produced by the applicant at the time of disposal of the writ petition. He submits that the resignation letter dated 25.11.2021 is a personal letter written by the review petitioner and the review petitioner cannot take a stand that the letter was not within his knowledge. He also submits that in terms of the judgment of the Supreme Court in the case of S. Tirupathi Rao Vs. M. Lingamaiah & Ors, (2024) 7 SCR 1077, though the provisions of the CPC would not apply to proceedings under Article 226 of the Constitution, the Supreme Court has held that the principles flowing from the CPC may be safely taken as a guide to decide writ proceedings. He submits that the production of the resignation letter dated 25.11.2021 for the first time in this review petition, appears to be an afterthought. He also submits that the review petitioner has not taken a stand that the resignation letter dated 25.11.2021 could not be produced, after the exercise of due diligence or that it was not within the applicant’s knowledge.
He also submits that the review petitioner has not taken a stand that the resignation letter dated 25.11.2021 could not be produced, after the exercise of due diligence or that it was not within the applicant’s knowledge. He also submits that there has been no discovery of new evidence for which he had no prior knowledge or that it could not be produced at the time when the writ petition was disposed of. 10. The counsel for the respondent No. 1/writ petitioner also submits that a cursory examination of the signatures of the three member Selection Committee in the final evaluation sheet of the candidates, vis-a-vis their signatures in the individual evaluation sheets of the members of the Selection Committee, shows that the signatures are not similar. He accordingly submits that the evaluation sheets/documents appear to be fabricated. He also submits that the individual evaluation sheets made by the individual members of the Selection Committee cannot be furnished under Section 8 (g) of the RTI Act, 2005 and as such, the review petitioner would have to explain how he could get possession of the same. He also submits that there has been no reason given by the review petitioner for the delay in filing the review petition. He also submits that there is nothing stated by the review petitioner as to when he filed the application under the RTI Act, on the basis of which the evaluation sheets have been illegally furnished to the review petitioner. He accordingly submits that the review petition should be dismissed. 11. I have heard the learned counsels for the parties. 12. The Supreme Court in the case S. Tirupathi Rao (supra), has held that although the explanation to Section 141 of the CPC makes it clear that the provisions of the CPC would not apply to proceedings under Article 226 of the Constitution, there is authority in abundance that the principles flowing from the CPC may safely be taken as a guide to decide writ proceedings but to the extent the same can be made applicable.
It further held that to put it plainly, Order XLVII Rule 1 of the CPC provides three grounds for review which are as follows: “(1) discovery of new and important matter or evidence which, after the exercise of due diligence was not within the applicant’s knowledge or could not be produced by the applicant at the time when the decree was passed, or order made. (2) mistake or error apparent on the face of the record. (3) for any other sufficient reason, which must be analogous to either of the aforesaid grounds.” 13. In Moran Mar Basselios Catholicos and Another Vs. Most Rev. Mar Paulose Athanasius, (1955) 1 SCR 520 , which was reiterated by the Supreme Court in the case of State (NCT of Delhi) Vs. K.L. Rathi Steels Ltd. (2024) 5 SCR 949, it was held that the third ground regarding “any other sufficient cause” must mean a reason sufficient on grounds, at least analogous to the first two grounds. In K.L. Rathi Steels Ltd. (supra), the Supreme Court further held that the scope of the third ground had to be narrowly construed so as to not traverse beyond the orbit of the first two grounds. 14. In the present case, the review petitioner has produced the letter dated 25.11.2021 for the first time in this review petition. The said letter dated 25.11.2021 shows that the petitioner had resigned from the political party to which he belonged to. The existence of the said letter had never been mentioned by the review petitioner in his affidavit-in-opposition filed in the writ petition. The said letter is a letter written by the petitioner and it should have been in the petitioner’s knowledge even at the time of pendency of the writ petition. To now take a stand in the review petition that the review petitioner has misplaced his resignation letter dated 25.11.2021 and could not produce the same before this Court during the proceedings of the writ petition appears to be an afterthought. There is nothing to show that he had discovered a new and important matter or evidence, after exercise of due diligence, which was not within the review petitioner’s knowledge or could not be produced at the time of pendency of the writ petition. 15.
There is nothing to show that he had discovered a new and important matter or evidence, after exercise of due diligence, which was not within the review petitioner’s knowledge or could not be produced at the time of pendency of the writ petition. 15. The writ petition challenging the selection and appointment of the Gaon Pradhan had been filed on 27.06.2022 and review petitioner had submitted his affidavit-in-opposition as respondent No. 8 in the writ petition, on 26.04.2023. Various affidavits had been filed by various parties and the matter had been finally decided vide judgment and order dated 26.09.2023. As the resignation letter of the review petitioner dated 25.11.2021 should have been in the review petitioner’s knowledge, even if the same had allegedly been misplaced by the petitioner, during the pendency of the writ petition, the petitioner could have made an averment to the said effect in his affidavit, filed during the pendency of the writ petition. However, as stated earlier, the affidavit of the review petitioner, during the pendency of the review petition, does not make a whisper of the fact that the review petitioner had submitted any resignation letter dated 25.11.2021 to the political party to which he belonged and that he had misplaced the same and could not be produced. 16. In view of the above reasons, the petitioner’s prayer for review on the ground that the said letter dated 25.11.2021 should be considered by this Court in this review petition cannot be allowed. The earlier existence of the said letter is doubtful due to the reasons stated above. The review petition is accordingly dismissed.