Rubul Sarmah v. Simanta Pradip Choudhury, Son of Late Amulya Choudhury
2025-03-25
VIJAY BISHNOI
body2025
DigiLaw.ai
JUDGMENT : SOUMITRA SAIKIA, J. This review petition is directed against the Judgment and Order dated 09.05.2023 passed in W.A. No. 75/2023. 2. The review petitioners before this Court were the appellants in W.A. No. 75/2023. The private respondents No. 1 to 19 had approached this Court earlier by filing W.P.(C) No. 8318/2019 praying for setting aside and quashing of the provisional gradation list published on 29.12.2017 as well as the final gradation list published on 01.10.2019 reflecting the seniority position of the writ petitioners below the respondents therein ( namely review petitioners herein). 3. The writ petitioners (namely Private respondents No. 1 to 19 herein) before the learned Single Judge prayed a direction to the official respondents to publish a fresh gradation list placing the petitioners/private respondents No. 1 to 19 herein above the review petitioners. 4. Pursuant to the selection process initiated through the APSC for filling up of 27 Nos. of vacant posts of Child Development Project Officer (CDPO), the review petitioners as well as the private respondents No. 1 to 19 herein participated in the selection process. The private respondents No. 1 to 19 were selected and their names appeared in the select list which was published on 17.07.2000. Pursuant to the selection, they were appointed as CDPOs in the year 2001 and they continued to work as CDPOs pursuant to their appointments. The review petitioners at the relevant point in time were serving on adhoc basis as ‘Regulation 3f’ under the APSC (Limitation of Function) Rules, 1951 appointees. The review petitioners although serving on adhoc basis as Regulation 3f appointees, however, failed to clear the selection and their names did not find place in the select list published on 17.07.2000. They were however subsequently regularized pursuant to a Cabinet decision taken by the Government. When the gradation list was published, the names of the review petitioners were found to be above the private respondents No. 1 to 19 and therefore, the private respondents as writ petitioners had approached this Court seeking appropriate directions.
They were however subsequently regularized pursuant to a Cabinet decision taken by the Government. When the gradation list was published, the names of the review petitioners were found to be above the private respondents No. 1 to 19 and therefore, the private respondents as writ petitioners had approached this Court seeking appropriate directions. The learned Single Judge upon due consideration of the matter interfered with the provisional gradation list as well as the final gradation list and held that the writ petitioners namely the private respondents No. 1 to 19 herein were to be treated as incumbents from the batch of the APSC select list of 17.07.2000 and the respondents before the learned Single Judge namely the review petitioners herein were to be treated as incumbents whose services had been regularized with effect from 16.11.2000 by virtue of the notification No. SWD.34/99/104 dated 16.11.2000, which was issued on the strength of the Cabinet decision dated 13.10.2000. The State respondents were accordingly directed to prepare and publish fresh gradation list by placing the names of the private respondents No. 1 to 19 above the present review petitioners within a period of one month from the date of receipt of a certificate copy. Being aggrieved, the writ appeal No.75/2023 was preferred by the present review petitioners. 5. Before the Division Bench, it was urged that the appellants were appointed into the cadre of CDPOs at a much prior date than the private respondents/writ petitioners as they were already serving as adhoc appointees under Regulation 3f of the APSC Limitation of Function Regulations, 1951. Subsequently, the writ appellants/ review petitioners were regularized by taking recourse to relaxation under Clause V of the 1994 service order by a Cabinet decision. As such the direction of the learned Single Judge interfering with the provisional and final gradation list and a further direction to prepare a fresh gradation list placing the private respondents over and above the writ appellants/ the review petitioners will amount to giving retrospective effect to the seniority of the private respondents even prior to their dates of appointments and entry into the cadre of CDPO.
It was further urged that in an earlier round of litigation where the regularization of the writ appellants/review petitioners were assailed by persons who were not selected for appointment pursuant to the recruitment process undertaken by the APSC for filling up 27 vacancies of CDPO, but whose names were waitlisted, the matter travelled to the Apex Court and the Apex Court rejected such claims and further upheld the regularization of the writ appellants/review petitioners. Under such circumstances, the Judgment and Order of the learned Single Judge was assailed. The writ appellate Court upon consideration of the matter in its entirety rejected the claims of the writ appellants dismissing the writ appeal. Being aggrieved, the present review petition has been preferred. 6. Before this Court, it was urged that the observations of the Division Bench in Paragraph-20 that the process adopted in favour of the appellants for regularization of their services is not prescribed under the service Rules is contrary to the service Rules/the service orders inasmuch as the power of relaxation was prescribed under the service order itself and taking recourse to that the proposal was accepted by the Cabinet by its decision dated 13.10.2000 and subsequently the Notification dated 16.11.2000 came to be issued regularizing the services of the petitioners. It is further urged that since the regularization of the writ appellants has already been upheld in the Judgment rendered by the Apex Court in Mukul Saikia and Ors. Vs State of Assam and Ors, reported in (2009) 1 SCC 386 , the findings of the Division Bench are contrary to the Judgment of Apex Court as well as the service order and consequently the same suffers from an error apparent on the face of the record which needs to be rectified and therefore the Judgment needs to be reviewed and recalled on the grounds urged before this Court. 7. The learned counsel for the parties have been heard. The grounds urged in the review petition have been carefully perused. The Judgment rendered by the Division Bench as also the Judgment of the Apex Court pressed into service have been carefully perused. 8.
7. The learned counsel for the parties have been heard. The grounds urged in the review petition have been carefully perused. The Judgment rendered by the Division Bench as also the Judgment of the Apex Court pressed into service have been carefully perused. 8. A perusal of the Judgment rendered in Mukul Saikia (supra) by the Apex Court reveals that the issue before the Apex Court in that matter was the challenge made to the regularization of the present review petitioners by claiming that instead of the present review petitioners, the waitlisted candidates should have been accommodated in vacancies which are otherwise available and in which the review petitioners have been regularized by way of the Cabinet decision. 9. The question whether the benefit of seniority in respect of the review petitioners are to be given effect to from the date of their initial appointment or from the date of their regularization was never an issue urged before the Apex Court in Mukul Saikia (Supra). Further the Division Bench held that the Cabinet decision dated 13.10.2000 and the Notification dated 16.11.2000 by which the services of the appellants were regularized are not a part of the pleadings nor has it been subsequently placed before the Court. The Division Bench further held that it was not the case of the appellants that there was a specific provision in the Cabinet decision dated 13.10.2000 and/or Notification dated 16.11.2000 to the effect that their seniority will be counted from the date of entry into the service on adhoc basis. The Division Bench held that Rule 10 of the Service Order 1994 clearly prescribed that seniority of the incumbents will be according to the order in which one’s name appeared in the Selection List and the said Rule was not under challenge. In view of such conclusions, the Division Bench dismissed the writ appeal. 10. Before this Court, an attempt was made by the learned counsel for the review petitioners to persuade this Court to review and recall the Judgment and Order dated 09.05.2023 passed in W.A. No. 75/2023 on the ground that the observation made in Paragraph-20 that the process adopted in favour of the appellants for regularization of their services is not described under the service Rules is contrary, to the service Rules/orders as well as to the findings of the Apex Court in Mukul Saikia (Supra).
The basic grounds urged are that the findings are contrary and therefore the same should be rejected. 11. We have given our anxious considerations to the submissions made by the learned counsel for the review petitioners. We have also carefully perused the Judgment and order dated 09.05.2023 sought to be rejected as well as the Judgment of the Apex Court pressed into service. The Division Bench had rendered a finding that the Cabinet decision and the consequential Notification did not reflect as to how the seniority of the petitioners are to be counted from. The service order clearly provides that the seniority is to be strictly in terms of the order in which the names appeared in the select list. There is no dispute that although the review petitioners participated in the selection process undertaken by the APSC, they were not successful. The private respondents on the other had participated and were successful and consequently selected and appointed in their respective posts. Going by the service Rules, the seniority in so far as the private respondents are concerned will have to be strictly in the order in which their names appeared in the select list. However, in so far as the review petitioners are concerned, no such materials is placed before the Court to suggest that the Cabinet while considering the aspect of regularization had also granted them their seniority with effect from their respective dates of officiating in their posts. Under such circumstances, the attempt made by the learned counsel for the review petitioners to persuade the Court to re- appreciate the ratio laid down in Mukul Saikia (Supra) and the service order and the Rules is nothing but an attempt to re-urge the matter afresh. This is clearly impermissible in the review jurisdiction exercise by this Court. 12. Reference is this regard may be made to the Judgment rendered by the Court in Sow Chandra Kante and Another -Vs- Sheikh Habib, reported in (1975) 1 SCC 674 , the Apex Court explained the parameter for exercise of the review jurisdiction under the High Courts. The Judgement of the Court must be read as a whole and the ration there from is required to be culled out in reading the same in its entirety and not a part of it..
The Judgement of the Court must be read as a whole and the ration there from is required to be culled out in reading the same in its entirety and not a part of it.. The relevant paragraphs are extracted below:- “A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different Counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel’s certificate which should not be a routine affair or a habitual step. It is neither fairness to the Court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for Counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for 2 maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be, as Counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality.” 13. Again in S. Nagaraj and Others –Vs- State of Karnataka and Another reported in 1993 Suppl. (4) SCC 595, the Apex Court held that :- “19. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice.
Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai [ AIR 1941 FC 1 , 2 : 1940 FCR 78 : (1941) 1 MLJ Supp 45] the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh [(1836) 1 Moo PC 117 : 2 MIA 181 : 1 Sar 175] that an order made by the Court was final and could not be altered " … nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in …. The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority.
The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.” Basis for exercise of the power was stated in the same decision as under: “It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.” Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, ‘for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice” 14.
The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice” 14. Coming to the facts of the present case the review petitioners have failed to point out any error apparent on the face of the Court which calls for review and recall of the judgment passed by the Division Bench. As had been held by the Apex Court an error which is not self evident and is required to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the Court justifying the Court to invoke it’s review jurisdiction. 15. In the present proceedings also the learned Senior Counsel on behalf of the review petitioners attempted to argue the matter by interpreting the conclusions of the Apex Court in Mukul Saikia (supra) in order to persuade the Court to review and recall the judgment passed by the Division Bench in Writ Appeal No. 75/2023. In view of the clear principles laid down by the Apex Court as discussed above, such attempt is not permissible and cannot be a ground for a Writ Court to invoke it’s review jurisdiction. There is therefore no merit in this review petition and the same is accordingly dismissed.