Rajender Singh Vs. Lt. Governor, Andaman & Nicobar Islands & Ors [2005] Insc 541
(4 October 2005)
Ruma Pal & Dr. AR. Lakshmanan (Arising out of S.L.P. (Civil) Nos. 11817-11818
of 2004) Dr. AR. Lakshmanan,
J.
Leave granted.
These two appeals are directed against the final judgment and order dated
22.12.2003 passed in W.P.C.T. No. 214 of 2003 by the High Court of Calcutta,
Circuit Bench at Port Blair by which the High Court allowed the writ petition
by dismissing the petition of the appellant herein before the Central
Administrative Tribunal in which the appellant herein succeeded and judgment
and order dated 20.2.2004 passed by the High Court of Calcutta, Circuit Bench
at Port Blair in Review Petition bearing RVW No.
003 of 2004 by which the High Court dismissed the review petition filed by
the appellant.
The short facts, which are relevant for the disposal of these two appeals,
are as follows:
The appellant has been working continuously since 23.09.1976 as a Lecturer.
He filed an application for regularisation of his service. The Tribunal
disposed of the application with a direction to grant study leave within a
period of three years vide order dated 17.6.1987. The operative part of the
order reads as follows:
"Hence, it is ordered that the applicant be given an opportunity to
acquire M.Phil degree from a recognised university within a period of three
years and for that purpose study leave of sufficient length should be given to
the applicant. If the applicant fails to acquire the M.Phil degree even after
being given this opportunity, the Government will be at liberty to terminate
his services. If the applicant is able to acquire the M.Phil degree he should
be regularised immediately after he gets the M.Phil degree." The appellant
being aggrieved due to the inaction of the respondents, filed O.A.
No.79 and 80/A&N/1998 for regularisation of his service and award of
Senior Scale and selection grades on 24.11.1998. O.A.No. 80/A&N/1998 was
disposed of at the admission stage with a direction upon the respondents to
pass reasoned and speaking order for award of selection grade. Pursuant to the
said judgment, the respondents passed Order No. 582 dated 19.2.1999.
The appellant filed O.A.No. 17/A&N/1999 challenging order No. 582 dated
19.2.1999 for award of senior scales and selection grades which was disposed of
on 14.2.2001 with a direction upon the Union Public Service Commission to
decide the matter of regularisation latest by 31.3.2001. The order reads as
follows:
"Accordingly, we dispose of the OA with a direction that UPSC should
decide the matter and communicate the decision to the applicant latest by
31.3.2001 and while doing so the observation made in para 13,14,15 of the
earlier decision in O.A 107/A&N/99 in which UPSC was also a party should be
kept in view. If the applicant is aggrieved by the decision of the authorities
he will be at liberty to approach this Tribunal again. There will be no order
as to costs." The respondents regularised the service vide order dated
26.8.1999 regularizing the services w.e.f. 12.3.1993 i.e. from the date of
issue of mark sheet of M.Phil. Being aggrieved with the respondents for not
upholding their own order, the appellant withdrew O.A.No. 79/A&N/1998 and
filed fresh O.A.No.107/A&N/1999 dated 6.10.1999 for regularisation of his
service w.e.f. 23.9.1976 and the said application was disposed of by the
Tribunal by order dated 7.7.2000 with the direction to the respondents to
regularize service of the appellant w.e.f. 23.9.1976 awarding cost of
Rs.25,000/-. The order reads thus:
"We also take note of the fact that this petitioner has been
unnecessarily harassed by the respondent authorities compelling him to approach
this Tribunal once again in the matter of regularisation of his service without
any lawful reason on the part of the respondent authorities for which the
petitioner deserves exemplary cost.
The OA is allowed. The impugned order dated 26th August,1999 is hereby set
aside. The respondent authorities are directed to regularise the service of the
petitioner with effect from the date of his initial appointment as lecturer
i.e. 23.9.1976 by issuing appropriate order and grant him all consequential
service benefits within a period of six weeks from the date of communication of
this order. We also direct the respondents to pay cost of Rs.25,000/- to the
petitioner within the aforesaid period." The respondents preferred an
appeal against the order in O.A.No.
107/A&N/1999 and the appeal was disposed of by the High Court vide order
dated 21.8.2000 directing the respondents to reconsider the case of the
appellant afresh and to grant benefits to the appellant to which the appellant
is entitled to in view of peculiar facts and circumstances of the case. The
High Court also upheld the cost and in view of the conduct of the respondents
gave liberty to the appellant to file suit for damages.
The appellant being aggrieved due to the denial of the award of senior scale
and selection grades filed fresh O.A. No. 90 of 2002 which the Tribunal
disposed of by its order dated 3.9.2003 which reads as follows:
"In view of the above, we allow this application with following
directions to the respondent authorities:- (i) To consider and issue necessary
order giving seniority to the applicant w.e.f. 23-9-1976 and granting senior
scale to the applicant, w.e.f. 1-1-1986 within a period of two months from the
date of communication of this order and communicate the same to the applicant
within a period of two weeks thereafter.
(ii) To consider and issue necessary order granting all other consequential
service benefits as a result of above seniority position and grant of senior
scale to the applicant within a period of three months after order has been
passed and communicated in respect of para (i) above and communicate this order
to the applicant within a period of two weeks thereafter, and, (iii) To work
out and pay/grant all the dues including arrears of pay and allowances etc. to
the applicant within a period of six weeks after taking action as per para (ii)
above.
No order is passed as to costs." The respondents preferred appeal
against the order in O.A.No.90 /A&N/2002 which was disposed of by the High
Court by its order dated 22.12.2002 setting aside the order of the Tribunal.
The appellant filed review application against the order in WPCT No. 214 of
2003 and the said review petition was rejected by another Division Bench vide
order dated 20.2.2004 in RVW No. 003 of 2004 in WPCT No. 214 of 2003.
We heard Mr. Yashank Adhyaru, learned senior counsel, appearing for the
appellant and Mr. B. Datta, learned Additional Solicitor General, appearing for
the respondents.
This Court issued notice on 20.07.2004 limited to the challenge to the order
passed on the review application by the High Court. Since the copy of the
review petition has not been filed along with the special leave petition, the
appellant was directed by an order of this Court dated 31.08.2005 to file the
review application and to produce a copy of the review application.
Accordingly, counsel for the appellant has on 21.09.2005 filed certified copies
of the records of the review petition and the same was placed before us for our
perusal. We have perused the certified copy of the review petition along with
all annexures. Learned counsel for the appellant reiterated the grounds raised
in the review petition and submitted that the impugned judgment does not deal
with and decide the important issue in the case that whether the qualification
laid down under para 13 and 14 of UGC Career Advancement Scheme is mandatory or
not for placing the appellant in senior scale and selection grade and if there
is no finding about the qualification, the appellant did not qualify for the
said scheme. It was further submitted that the judgment based on
misrepresentation of a party on the main issue is open for review in the light
of the law laid down by this Court in a number of decisions. Learned counsel
further submitted that in view of relaxation incorporated in the scheme with
regard to the provision 11 (b) and (d) and subsequent relaxation to the
aforesaid provisions by UGC up to 31.12.2004, the appellant is eligible for
selection grade. In addition, the mala fides coupled with obvious factor of
bias was also raised before the High Court. It was clearly overlooked by the
High Court and, therefore, learned counsel submitted that it is a good ground
for review particularly when the appellant was precluded from producing the
documents due to bona fide reasons and non-possession. The High Court held that
though the documents were very much available to the appellant, the appellant
has not been able to satisfy the Court and failed to establish the situation
which prevented him from not producing those documents before the Division
Bench when the matter was taken up for consideration and in such view of the
fact it cannot be said that there has been discovery of new and important
matter which despite exercise of due diligence on the part of the appellant was
not within the knowledge and possession of the appellant and as such could not
be produced by him at the time when the impugned order was made. It has been
clearly stated in the special leave petition as to how these documents were not
in possession of the appellant at the time of hearing of the case. It was
stated by the appellant that despite due diligence, the appellant could not
place before the Division Bench, the Minutes of the Screening Committee held on
23.06.1987 and 04.03.1992 wherefrom it is crystal clear that senior scale and
selection grade have been awarded to many lecturers by relaxing the conditions
and only on the basis of length of regular service in the College, on the basis
of their teaching experience. It was further pointed out that the Division
Bench has not considered the issue that conditions 13(b) and 14(b) are no
longer a pre-condition for placement in senior scale and for selection grade as
the conditions of participation in the refresher course were incorporated in
relaxation of rules following the guidelines dated 18.12.1989. This apart, the
condition of refresher courses/summer institute had been relaxed up to
31.12.2004 by the UGC vide its letter No. F2-16/2002 (PS) dated 17.10.2002. It
was also contended that the UGC's letter No. F1-6/90 (PS) Cell dated 27.11.1990
wherein the Commission in consultation with the Ministry of Human Resources
Development (Department of Education), issued revised guidelines for counting
of previous ad hoc service for the purpose of senior scale/selection grade
under Career Advancement Scheme for lecturer. According to learned counsel for
the appellant, the Division Bench of the High Court has overlooked the fact
that after regularisation from the initial date of appointment, the appellant
fulfilled the condition (a) and (c) under para 13 for senior scale and the
condition (b). It was further submitted that the Division Bench has not taken
into consideration the fact that the appellant has a good teaching record and
also fulfils other conditions (a), (c) and (e) as he possesses M.Phil degree
which is a research degree, and he presented research papers in National
Seminar sponsored by UGC and engaged in teaching at Post-Graduate level (M.Sc.)
and that the condition (d) relaxation is incorporated in the scheme and that
the respondents themselves never allowed the appellant to participate in such
courses. It was submitted that the High Court has not noticed the important
fact that the Screening Committee having interviewed the appellant on
28.01.2002 for award of senior scale again called him for personal interview
after two months for grant of selection grade in its meeting held on
05.03.2002. It was well-established fact that unless a lecturer is granted
senior scale in the first instance, he cannot be considered at all for the
grant of selection grade. Our attention was also drawn to the fact that the
Division Bench has not considered the Administration's letter dated 10.01.1995
wherein other lecturers' services were regularised from the initial date on
their ad hoc appointment after clearance from the UPSC on the directions of the
Tribunal and awarded them seniority and all consequential benefits. It was
argued that the High Court has committed an error of fact by overlooking the
documents relied on by the appellant particularly the documents showing bias on
the part of the respondents/members of the Screening Committee and the
discrimination and harassment to which the appellant has been subjected since
27.03.2000 and the incorrect submission made by their respondents in their
affidavits which bear direct relation to the case of the appellant and as such
non-adjudication on the grounds of mala fide/fraud falls within the scope of
Order 47 CPC.
It was also pointed out that some of the documents were overlooked by the
Court. They are:
i. D.O.Letter No.F.2-16/2002(PS) dated 17-10-2002 and D.O. Letter No.F1-
6/90 (ASC/ER) dated 24-10-1994 of UGC regarding the relaxation of refresher
courses. Both these letters are annexed to the Review Petition.
ii. Relaxation incorporated in the Scheme dated 18-12-1989 of UGC and the
same is annexed to the Review Petition.
iii. Letter dated 19th January, 1995 wherein the Assistant Secretary (Edn.)
being directed to inform to the Principal, JNRM regarding the service benefits
including the seniority to which the lecturers are entitled to after the
regularization of their services from the initial date of their ad hoc
appointment.
iv. Documents reflecting bias and malafide intentions of the respondent
authorities to victimize and harass the Petitioner.
The appellant has also filed a rejoinder affidavit with annexures R1-R5.
Per contra, Mr. B. Dutta, learned Additional Solicitor General submitted
that the placement in senior scale/selection grade/reader is not by virtue of
length of service alone but certain mandatory conditions under the Career
Advacement Scheme and that the case of the appellant for placement in senior
scale/selection grade/reader was examined by the Screening Committee and since
he could not satisfy the mandatory requirement, his name was not considered.
Our attention was also drawn to certain averments made in the counter affidavit
filed in this Court on merits of the claim made by the appellant for reviewing
the order of the Division Bench. He denied that the Screening Committee was
neither mala fide nor biased and it adhered to Career Advancement Scheme as
laid down by UGC and the Ministry of Human Resources Development and that the
appellant did not fulfil the mandatory and statutory conditions for the award
of senior scale. It was submitted that the scope of application for review is
more restricted than that of an appeal and, therefore, the review application
has no merits.
We are unable to countenance the argument advanced by learned Additional
Solicitor General appearing for the respondents. A careful perusal of the
impugned judgment does not deal with and decide many important issues as could
be seen from the grounds of review and as raised in the grounds of special
leave petition/appeal.
The High Court, in our opinion, is not justified in ignoring the materials
on record which on proper consideration may justify the claim of the appellant.
Learned counsel for the appellant has also explained to this Court as to why
the appellant could not place before the Division Bench some of these documents
which were not in possession of the appellant at the time of hearing of the
case. The High Court, in our opinion, is not correct in overlooking the
documents relied on by the appellant and the respondents.
In our opinion, review jurisdiction is available in the present case since
the impugned judgment is a clear case of an error apparent on the face of the
record and non- consideration of relevant documents. The appellant, in our
opinion, has got a strong case in their favour and if the claim of the
appellant in this appeal is not countenanced, the appellant will suffer immeasurable
loss and injury. Law is well-settled that the power of judicial review of its
own order by the High Court inheres in every Court of plenary jurisdiction to
prevent mis-carriage of justice.
The power, in our opinion, extends to correct all errors to prevent
miscarriage of justice. The courts should not hesitate to review its own
earlier order when there exists an error on the face of the record and the
interest of the justice so demands in appropriate cases. The grievance of the
appellant is that though several vital issues were raised and documents placed,
the High Court has not considered the same in its review jurisdiction. In our
opinion, the High Court's order in the revision petition is not correct which
really necessitates our interference.
We, therefore, set aside the order passed by the High Court in RVW No. 003
of 2004 in WPCT No. 214 of 2003 dated 20.02.2004 and allow the appeal from the
order refusing review. In view of our allowing the appeal filed against the
order in RVW No.
003 of 2004 dated 20.02.2004, we set aside the original order dated
22.12.2003 in WPCT No. 214 of 2003. The WPCT is restored to file. We dispose of
these two appeals with a request to the High Court for fresh consideration of
the WPCT No. 214 of 2003 on merits as expeditiously as possible. Both parties
are at liberty to place before the High Court the special leave petition
grounds with annexures, the counter filed by the respondent herein with
annexures and the rejoinder filed by the appellant with annexures as additional
documents in WPCT NO. 214 of 2003.
We make it clear that we are not expressing any opinion on the merits of the
rival claim. The appeals shall stand allowed. No costs.
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