Jayanta Kumar Biswas, J.@mdashThe petitioner in this writ petition dated September 20, 2005 is seeking the following principal final relief:
"(a) Issue Rule calling upon the Respondents and each one of them to show cause as to why the judgment and order dated 7.1.05 passed by the Hon''ble Justice Arun Kumar Mitra on W.P. No. 2936 (W) of 1998 shall not be reviewed and on such review, the said judgment and order shall not be recalled, and W.P. No. 2936 (W) of 1998 shall not be reheard on merits after adding the Petitioner as Respondent therein,"
Facts appearing from the pleadings are these. On June 15, 1995 the District Employment Exchange, Kama (Burdwan) sponsored names of candidates for the post of Assistant Teacher of Geography in Jamna High School in Jamna of district Burdwan. The petitioner was one of the twenty persons named in the list. The first respondent, Abdul Hakim Karikar, was also one of the persons named in the list. On February 25, 1996 the selection committee interviewed the candidates and prepared the select candidate list placing Abdul in the first position, one Shah Sarif Mohammad in the second position and the petitioner in the third position. Shah Sarif filed W.P. No. 658 of 1996 alleging that for the post graduate basic training diploma obtained from an institute not recognized by the state government, the selection committee wrongfully gave Abdul 10.45 marks. By an order dated March 26, 1996 the writ petition was disposed of directing the district inspector of schools to look into the matter. Then Abdul filed W.P. No. 2374 (W) of 1997 alleging inaction on the part of the district inspector of schools. By an order dated February 28, 1997 his writ petition was disposed of directing the district inspector of schools to take necessary steps concerning approval of the select candidate list. The district inspector of schools gave a decision that Abdul was wrongly marked for the diploma. He said that the select candidate list should be recast. The decision was communicated to Shah Sarif and Abdul by a memo dated March 26, 1997. Accordingly, the selection committee recast the list by placing Shah Sarif in the first position, the petitioner in the second position and Abdul in the third position. Questioning the decision of the district inspector of schools Abdul filed W.P. No. 11376 (W) of 1997. The petitioner was not made a party to the writ petition. By an order dated August 14, 1997 the writ petition was disposed of directing the Director of School Education, West Bengal to decide the matter. The director gave his decision that Abdul was not entitled to any mark for the diploma. The decision was communicated to Abdul and Shah Sarif by a memo dated January 20, 1998. Questioning the decision of the director, Abdul filed W.P. No. 2936 (W) of 1998. The petitioner was not made a party to this writ petition as well. Then Shah Sarif filed W.P. No. 7044 (W) of 1998 alleging that the district inspector of schools was not approving the recast select candidate list in which he was placed in the first position. The petitioner was made a respondent in this writ petition. During pendency of these two writ petitions the district inspector of schools issued an order dated December 26, 2001 provisionally approving the list in which Shah Sarif was placed in the first position, the petitioner in the second position and Abdul in the third position. On January 2, 2002 the institute offered Shah Sarif appointment. By a letter dated January 2, 2002 Shah Sarif informed the institute that he was not interested in the offer, because he had already got an appointment as assistant teacher in another high school. Under the circumstances, on January 3, 2002 the petitioner was offered the appointment. Accepting the offer the petitioner joined the institute. The district inspector of schools approved his appointment with effect from January 3, 2002. The order was communicated to the petitioner by a memo dated January 16, 2002. By a subsequent order, communicated to him by a memo dated October 9, 2002, the district inspector of schools unconditionally approved the petitioner''s appointment. By an order dated April 3, 2003 Shah Sarif''s W.P. No. 7044 (W) of 1998 was dismissed for non-prosecution. On April 3, 2003 both Abdul''s W.P. No. 2936 (W) of 1998 and Shah Sarif''s W.P. No. 7044 (W) of 1998 were taken up for hearing together. By a resolution dated March 4, 2004 the managing committee of the institute confirmed the petitioner as assistant teacher. Under these circumstances, by the judgment and order dated January 7, 2005 Abdul''s W.P. No. 2936 (W) of 1998 was allowed. It was held that being the first candidate in the list of select candidates originally prepared by the selection committee Abdul was entitled to the appointment. The director and the district inspector of schools were directed to ask the institute to offer Abdul appointment. It was ordered that if Shah Sarif was appointed, then his appointment would be cancelled and Abdul would be appointed.
2. The petitioner, claiming that he learnt of the judgment and order dated January 7, 2005 from the headmaster of the institute on September 16, 2005, took out the present writ petition on September 20, 2005 contending that the order dated January 7, 2005, if implemented, will dislodge him from service, and hence he is seriously prejudiced by it; that, since he was not a party to W.P. No. 2936 (W) of 1998, the judgment and order is not binding on him; and that as an affected person he has a right to file the writ petition invoking the inherent power of this Court for an order setting aside the judgment and order and directing rehearing of W.P. No. 2936 (W) of 1998 after making him a party thereto.
3. Abdul is contesting the case by filing an opposition dated March 16, 2006, and the case stated in it is as follows. The petitioner, joining the institute only on January 3, 2002, was not a necessary party to W.P. No. 2936 (W) of 1998. The writ petition is wholly misconceived and not maintainable, because, if the petitioner was aggrieved by the judgment and order dated January 7, 2005, then he "ought to have preferred appropriate application and/or appeal challenging the legality, validity and/or propriety" thereof. The remedy of review "is always subject to the limitation of powers of the Court under Order 47 Rule 1 of the Code of Civil Procedure." In any case, "a fresh writ proceeding under Article 226 of the Constitution of India to review a judgment and order delivered in a writ application is not the correct legal procedure as per the law laid down by the Hon''ble Supreme Court of India." The petitioner had a remote chance, if any, of getting an appointment to the post, and not a vested legal right; and hence opportunity of hearing to him would have been a mere ritual, and non-observance of the principle is of no consequence. The actions of the district inspector of schools and the managing committee of the institute concerning the petitioner''s appointment and approval of his appointment "are highly suspicious, malafide and biased." The managing committee of the institute "had proceeded hand in glove in collusion with the writ petitioner for extraneous consideration, oblique purpose, malafide and illegally to frustrate my legitimate claim and being further inspired to pursue with such illegal action by the District Inspector of Schools proceeding with bias, ego and collusively with the school authorities and the writ petitioner."
4. The petitioner has filed a reply dated April 16, 2009 stating as follows. Since he was one of the persons named in the list of select candidates, he was a necessary party to Abdul''s W.P. No. 2936 (W) 1998. Abdul ought not to have moved W.P. No. 2936 (W) of 1998 behind his back. It is not believable that Abdul had no knowledge of his appointment in the institute as an assistant teacher. The allegation that the district inspector of schools and the managing committee acted in collusion with him for extraneous consideration and oblique purpose is baseless and frivolous. Abdul has already got an employment as assistant teacher in Aucha Makaltor Senpara Netaji High School in Makaltor of the district Murshidabad, and hence, if the writ petition is allowed, the order will not cause him any prejudice or manifest injustice.
5. Mr. Bose, counsel for the petitioner, relying on
6. Mr. Ali, counsel for Abdul, relying on Chhajju Ram vs. Neki & Ors., (1922) 26 CWN 697 (PC);
7. From the pleadings of the parties and arguments advanced by their counsel it seems to me that the controversies involved in the case are: (i) whether the petitioner is affected by the judgment and order dated January 7, 2005 passed in Abdul''s W.P. No. 2936 (W) of 1998; (ii) whether he was a necessary party to Abdul''s W.P. No. 2936 (W) of 1998; and (iii) whether he could file this writ petition seeking an order setting aside the judgment and order dated January 7, 2005 and directing rehearing of Abdul''s W.P. No. 2936 (W) of 1998 after making him a respondent in the case.
8. In my judgment, it is evident from the facts and circumstances noted hereinbefore that the petitioner is seriously affected by the judgment and order dated January 7, 2005 passed in Abdul''s W.P. No. 2936 (W) of 1998. He was appointed to the post as back as January 3, 2002. There can be no doubt that compliance with the order dated January 7, 2005 will definitely result in termination of his service. There is no reason to say that the institute offered him appointment, the district inspector of schools approved his appointment, and the managing committee of the institute confirmed his appointment, in collusion with him and for extraneous considerations and purpose. Allegations to this effect have remained totally not proved. No evidence in proof of the allegations has been adduced by Abdul. Hence there is no reason to say that since the petitioner obtained the employment collusively or by exercising fraud, there is no need to hear him by anyone for terminating his service. Having been duly appointed to the post, he acquired a legal right to say that his service cannot be terminated otherwise than in accordance with law, an essential part whereof is the principles of natural justice. An order or decision leading to termination of his service can be made only after giving him a reasonable opportunity of hearing.
9. The next question is whether the petitioner was a necessary party to Abdul''s W.P. No. 2936 (W) of 1998. The admitted position is that in the first list prepared on February 25, 1996 he was in the third position. The recruitment was made following the procedure prescribed by the director of school education in exercise of his statutory powers conferred on him by the Management of Recognized Non-Government Institutions (Aided and Unaided) Rules, 1969. The selection committee was required to prepare a list naming the three best candidates according to merit. It is not that the third candidate is never to be appointed. Rather the purpose of making a list of three select candidates is to ensure that if the vacancy remains unfilled even after the cases of the first and the second candidates are considered, the appointment can be offered to the third candidate; and thus a reasonable step can be taken to avoid another selection process. Hence it is not correct to say that since the petitioner''s chance of getting an appointment to the post was remote, for adjudication of the controversy involved in Abdul''s W.P. No. 2936 (W) of 1998 he was not a necessary party. As a matter of fact, what Abdul questioned in his writ petition is the decision of the director of school education virtually affirming the decision of the district inspector of schools that the list should be recast, because the selection committee had wrongfully marked Abdul for a diploma he obtained from an unrecognized institute; and under these decisions, in the list the petitioner was above Abdul who was placed in the third position.
10. In view of the fact that though the petitioner was a necessary party to Abdul''s W.P. No.2936 (W) of 1998, he was not made a party, and that by the judgment and order dated January 7, 2005 allowing Abdul''s writ petition, the petitioner, facing a real threat of termination of his service, is seriously affected, the next question is whether he could file a writ petition seeking an order setting aside the judgment and order dated January 7, 2005 and directing rehearing of Abdul''s writ petition after making him a respondent in the case. All the decisions cited to me are on this question.
11. In Chhajju Ram v. Neki & Ors., (1922) 26 CWN 697 (PC), Neki & Ors., claiming to have validly exercised a right of preemption over the suit lands, filed a suit seeking decrees for setting aside of the sale and possession. The suit was allowed and in appeal Chhajju Ram, a defendant, was permitted to take an additional ground of appeal. His appeal was allowed. Then Neki & Ors. applied under 0.47, R. 1 for a review on the grounds that the court ought not to have admitted the additional ground of appeal, and that the judges were misled into holding that the facts found by them disentitled the plaintiffs to a decree. The review application was allowed and Chhajju''s appeal was dismissed. In his appeal to the Privy Council, their Lordships were interpreting the words "any other sufficient reason" used in R.1 of 0.47. Their Lordships said (on p.703) :
"They think that R.1 of Or. XLVII must be read as in itself definitive of the limits within which review is to-day permitted, and that reference to practice under former and different statutes is misleading. So construing it they interpret the words "any other sufficient reason'''' as meaning a reason sufficient on grounds at least analogous to those specified immediately previously. Such an interpretation excludes from the power of review conferred the course taken by the second and third Division Bench, composed of Wilberforce, J., and Scott Smith, J., and by Wilberforce, J., and Le Rossignol, J., respectively. The result is that the judgments given by these two Division Benches ought to be set aside, and that of the Bench of the Chief Court composed of Scott Smith, J., and Leslie Jones, J., restored, so that the suit will stand dismissed."
12. In
"It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla, J., affected the interests of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla, J., entertained the second writ petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though their interests were sought to be affected by the decision of the High Court, that the second application was entertained by Khosla, J."
13. In
"The order passed by Mr. Mankodi, in law amounted to a review of the order made by the Saurashtra Government. It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order."
14. In
"The Learned Counsel for the respondent State urges that this is not a case fit for review because it is only a case of mistaken judgment. But we are unable to agree with this submission because at the time of arguments our attention was not drawn specifically to Sub-section 23C(2) and the light it throws on the interpretation of Sub-section (1)."
15. In
"Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In & civil proceeding, an application for review is entertained only on a ground mentioned in O. XLVII, Rule 1 of the CPC and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL, R.1 Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility''.
16. The decision in
''''...It is true as observed by this Court in
17. In
"In view of the clear pronouncement of law it must be held that the writ petitioners are entitled to pray for the reliefs claimed."
18. In
"(ii) that the decision contained in the judgment dated 9-1-1980 in CWP No.3213 of 1968 be declared to be not binding on the petitioners as they had deliberately been omitted from being impleaded as parties in the writ petition. (v) that the decision dated 9-1-1980 in CWP No.3213 of 1968 be recalled and the case be redecided after hearing the petitioners who are necessary parties to the said writ petition." CWP No.1287 of 1980 was allowed on August 13, 1992 holding that Pohla Singh & Ors. were not bound by the decision dated January 9, 1980 given in CWP No. 3213 of 1968. The full bench of the high court allowed the letters patent appeal, and the appeal by Pohla Singh & Ors. before the Supreme Court was contested by contending, inter alia, (para.8) that CWP No. 1287 of 1980 filed by Pohla Singh & Ors. was not maintainable, as a petition under art. 226 could not be filed for quashing or setting aside of an order passed in an earlier writ petition. Allowing the appeal, after considering Shivdeo Singh & Ors. vs. State of Punjab & Ors., AIR 1963 SC 1909, their Lordships said (para. 18.1):
"..........If a decision rendered in a writ petition adversely affects the interest of a third person who was not impleaded as a party in the writ petition, it is always open to him to ask for recall of the judgment which has been rendered without affording any opportunity of hearing to him."
19. Review is a process under which a court in certain circumstances can reconsider its own judgment, and the term "review" means a judicial re-examination of the case in certain specified and prescribed circumstances. The provisions of 0.47, R.1 of the Code of Civil Procedure, 1908 provide who can seek the review of a judgment and when. Rule 1 of 0.47 is set out below :
"R.1. Application for review of judgment.- (1) Any person considering himself aggrieved, -
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the Court which passed the decree or made the order."
20. A right to review is a statutory right conferred on a person considering himself aggrieved by a decree passed or order made against him, and he has a right to apply for a review of the judgment only on the grounds mentioned in 0.47, R.1 in specified form and within the prescribed period. As was held by the Privy Council in Chhajju Ram vs. Neki & Ors., (1922)26 CWN 697, the expression "any other sufficient reason" means a reason sufficient on the grounds at least analogous to those specified immediately previously. This means that the person seeking review of a judgment can seek it only on discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or on a ground analogous to any of these grounds. It is, therefore, evident that the right to review of a judgment can be exercised only by a party to the proceedings, and not by a stranger to the proceedings, even if he is affected by the decree or order. He, who needs opportunity to state his case and adduce evidence in support of that, wants his case, never examined before, to be examined, not re-examined.
21. The word "inherent" means forming an essential or intrinsic element of. The expression "inherent power" means the power which, while not expressly granted will nevertheless be deemed to exist or be inherent in a court, or a corporate or a governmental body. Section 151 of the Code of Civil Procedure, 1908 not only recognises the inherent power of a civil court, but also declares that nothing in the code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the court. In
22. When a person seeks an order setting aside a judgment and order passed by the court in a previous case to which he was not a party, on the ground that it has affected him, what he actually seeks is not review of the judgment in question, but an order setting it aside, not on merits, but on the ground that it was made without hearing him. In such a case, in my opinion, the party seeking relief cannot apply on any of the grounds specified in 0.47, R.1 of the Code of Civil Procedure, 1908, and he has to invoke only the inherent power of the court. Again, if a person applying seeks an order declaring that a judgment and order made in a previous case to which he was not a party is not binding on him, he cannot apply on any of the grounds mentioned in 0.47, R.1 of the Code of Civil Procedure, 1908. He has to institute an original case seeking the declaration. When the situation arises before the writ court, in* my view, the party seeking a declaration that a judgment made in a previous writ petition to which he was not a party is not binding on him, can definitely seek the relief by filing a writ petition under Article 226. This view is fully supported by the ratio of the Supreme Court decision in
23. In view of the foregoing discussions, I am unable to accept Mr Ali''s arguments that this writ petition is not maintainable. I have already said that by the judgment and order dated January 7, 2005 passed in Abdul''s W.P.No. 2936 (W) of 1998 the petitioner, facing real threat of loss of permanent employment, is seriously affected; and the admitted position is that to Abdul''s writ petition he was not a party, and that no notice of the case was given to him. The judgment and order was made without hearing him. The result is that a grave injustice has been done to him, and hence for the ends of justice and to prevent miscarriage of justice, it is necessary to exercise the inherent power of this Court to set aside the judgment and order dated January 7, 2005. There is no reason to say that as a coordinate bench I cannot set aside the judgment and order. As a matter of fact, today I am exercising the same jurisdiction and power that would have been exercised by his Lordship, if he were a judge of this Court.
24. For these reasons, I allow this writ petition, set aside the judgment and order dated January 7, 2005 passed in Abdul''s W.P.No.2936 (W) of 1998 and order that Abdul''s writ petition will be heard afresh after adding the petitioner as a respondent thereto and giving him notice of the case. Abdul is free to proceed with his writ petition in accordance with law. There shall be no order for costs. Urgent certified xerox of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.
