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Judgment
Saugata Bhattacharyya, J
I was on circuit to Jalpaiguri to preside over Court of the Circuit Bench for the period from 1st April, 2019 to 5th April, 2019 and while sitting in the Circuit Bench at Jalpaiguri I was assigned the determination of hearing writ petitions and civil motions sitting singly. The writ petition being WPA 7 of 2019 was finally heard on 3rd April, 2019 by me and the same was dismissed by passing order. After the session of Circuit Bench at Jalpaiguri was over on 5th April, 2019, I came back to Kolkata and started sitting in the Principal Bench of the High Court at Calcutta with effect from 8th April, 2019.
When I was sitting in the Principal Bench after returning from Jalpaiguri one review petition was mentioned before me in the month of April, 2019. The learned Advocate appearing for the review applicants / writ petitioners made a prayer upon mentioning the matter for giving necessary direction permitting filing of the said review petition in the Principal Bench. Considering the relevant provisions as contained under Rule 5(a) and Rule 5(b) of the Calcutta High Court (Circuit Bench at Jalpaiguri) Rules, 2019 I refused the prayer made by the learned Advocate and directed the review applicants to file the review petition in the Ciruit Bench at Jalpaiguri. Rule 5(a) and Rule 5(b) of the Calcutta High Court (Circuit Bench at Jalpaiguri) Rules, 2019 reads infra:--
"5. Notwithstanding anything contained in rule 4,-
(a) an appeal under Clause 15 of the Letters Patent directed against the judgment or order of one of the Judges of the Circuit Bench and any application relating thereto and
(b) any urgent application either under Article 226 or Article 227 of the Constitution of India, and any urgent civil or criminal case, originating in the districts may be instituted in the Principal Bench and heard by the appropriate Bench at Kolkata, if the Circuit Bench is not in session:
Provided, however, that such of those appeals and applications which have not been disposed of, shall stand transferred to the Circuit Bench for being heard and decided by the next Circuit Bench."
Considering the said Rule 5(a) and Rule 5(b) of the Rules of 2019 my understanding was only appeal under Clause 15 of the Letters Patent directed against the judgment and order of one of the Judges of the Circuit Bench and any application relating thereto as well as urgent applications either under Article 226 or under Article 227 of the Constitution of India originating in the judicial districts of Cooch Behar, Darjeeling, Jalpaiguri and Kalimpong including administrative district of Alipurduar [Rule 1(d)] can be instituted in the Principal Bench and heard by the appropriate Bench at Kolkata, if the Circuit Bench is not in session. Accordingly, I refused the prayer of the learned Advocate appearing for the review applicants to institute the review petition in the Principal Bench at Kolkata.
Subsequently, it appears from the order dated 23rd April, 2019 passed by the Division Bench comprising of the Hon'ble the Chief Justice and the Hon'ble Justice Arijit Banerjee, the learned Advocate for the review applicants mentioned the matter before the said Division Bench and an order was passed on 23rd April, 2019 which is quoted below:-
"The mentioned matter raises an issue as to whether an order passed by an Hon'ble Judge of this Court sitting in the Circuit Bench at Jalpaiguri could be sought to be reviewed by presenting the review petition in the High Court at Calcutta (Principal Bench) where that Judge currently sits in terms of the determination.
We are inclined to consider this issue, which may gain importance with the passage of time.
We, therefore, direct this matter to be listed as an "Un-numbered" item for the purpose of determining this issue.
Let it be listed tomorrow (24.4.2019) under the heading "To Be Mentioned".
The Hon'ble Division Bench found it necessary to consider the issue which may gain importance with the passage of time as it appears from the order passed on 23rd April, 2019 (Supra).
In terms of the direction as contained in order dated 23rd April, 2019 that the matter to be listed on 24th April, 2019 under the heading 'To Be Mentioned' the matter appeared before the Hon'ble the Chief Justice on 24th April, 2019 and the Hon'ble the Chief Justice upon considering the relevant provisions of The Calcutta High Court (Circuit Bench at Jalpaiguri) Rules, 2019 passed an order thereby finally decided the issue of permissibility of filing a review petition in the Principal Bench seeking review of the order passed by the learned Judge sitting in the Circuit Bench at Jalpaiguri. The order passed by the Hon'ble the Chief Justice on 24th April, 2019 is quoted below:-
"1) This is a matter mentioned before the Chief Justice.
2) The petitioners seek to institute an application for review of an order dated 3rd April, 2019 passed by the Hon'ble Justice Saugata Bhattacharyya in WPA 7 of 2019 in the Circuit Bench of Calcutta High Court at Jalpaiguri. Since that Hon'ble Judge is currently sitting in the Principal Seat of the Calcutta High Court, the question posed is whether the application for review could be instituted in the Principal Bench of the Calcutta High Court or whether it has to be instituted in the Circuit Bench at Jalpaiguri and then transmitted for consideration to the Principal Court for consideration by the said Learned Judge.
3) The Calcutta High Court (Circuit Bench at Jalpaiguri) Rules, 2019, hereinafter called "the Rules", defines "Circuit Bench" to mean a Bench consisting of one or more Judges of the High Court at Calcutta, holding Court at Jalpaiguri. For the purpose of the Rules, "Circuit" means Judge(s) on movement to Jalpaiguri to preside over Courts of the Circuit Bench. Rule 3 of the Rules provide that Judges of the High Court at Calcutta shall be on Circuit Bench at Jalpaiguri as per nomination to be made by the Chief Justice in terms of that Rule. The Principal Bench for the purpose of the Rules means a Bench of the High Court at Calcutta, at Kolkata. In terms of these provisions, Judges of the High Court at Calcutta would move to Jalpaiguri to preside over Courts of the Circuit Bench to hold Court at Jalpaiguri, in terms of nomination made by the Chief Justice.
4) In the light of the aforesaid Rules, the Judge who is on movement to Jalpaiguri to preside over Courts of the Circuit Bench at Jalpaiguri would be the Judge of the High Court at Calcutta while discharging duties of presiding over Courts of the Circuit Bench at Jalpaiguri. When that circuit movement of the Judge is over and the said Judge presides in the principal seat of the High Court at Calcutta, after holding Court of the Circuit Bench, it would be open to that Judge to entertain review petitions in the Principal Bench in the main seat of the High Court at Calcutta, at Kolkata since an application for review of an order has to be considered by the same Judge, unless that Judge is incapacitated from doing so or has ceased to hold office.
5) Ends of justice would be better sub-served if such applications for review of orders are permitted to be instituted and entertained in the principal bench itself.
Therefore, the Registry is directed to follow the procedure as delineated hereinabove in this matter and also in similar matters which may come from time to time unless otherwise ordered.
Let this matter be numbered and listed before the Hon'ble Justice Saugata Bhattacharyya."
As the issue of filing the review petition in the Principal Bench at Kolkata seeking review of the order passed by the said learned Judge sitting in the Circuit Bench at Jalpaiguri has been finally decided by virtue of the order dated 24th April, 2019 passed by the Hon'ble the Chief Justice, the memorandum of review along with the stay application are taken up for hearing by me.
A memorandum of review (RVW 113 of 2019) seeking review of order dated 3rd April, 2019 passed on the Writ Petition (W.P.A 7 of 2019) and an application for stay of the order dated 3rd April, 2019 (CAN 6132 of 2019) have been filed by the writ petitioners in W.P.A 7 of 2019. The order dated 3rd April, 2019 was passed by me sitting in the Circuit Bench at Jalpaiguri while dismissing the said writ petition.
In the present review petition, petitioners have made an attempt to address on the following issues:-
(i) whether the alleged appointment of 121 candidates on the posts of primary teacher under the jurisdiction of Gorkhaland Territorial Administration were properly made upon following the relevant recruitment rules;
ii) question was raised against advertisement dated 25th February, 2019 issued by the President, District School Board, Gorkhaland Territorial Administration, Darjeeling inviting applications for conducting Teachers Eligibility Test for appointment of primary teachers in the primary schools situated within the jurisdiction of Gorkhaland Territorial Administration.
This Court while adjudicating the writ petition addressed the above two issues and ultimately passed order on 3rd April, 2019 after giving opportunity to the learned Advocates representing the parties to the writ petition to place their case.
This memorandum of review along with the stay application have been heard today as well as on 11th July, 2019 at length when the learned Advocate representing the review applicants tried to impress upon this court that the order dated 3rd April, 2019 requires consideration while adjudicating the present review petition upon placing reliance on the two judgments of the Supreme Court in the matter of Adi Saiva Sivachariyargal Nala Sangam -Vs- Government of Tamil Nadu & Anr. reported in (2016) 2 SCC 725 Paragraphs 11 and 12 and in the matter of Board of Control for Cricket in India & Anr. -Vs- Netaji Cricket Club & Ors. reported in (2005) 4 SCC 741 Paragraphs 89, 90 and 93.
In Adi Saiva Sivachariyargal Nala Sangam (Supra), the Apex Court was considering whether in absence of any necessary order of the State Government implementing G.O. dated 23rd May, 2006, the writ petition ought not to be held not maintainable provided that the apprehension expressed by the petitioners is well founded.
In this review application the applicants have not been able to place before this Court any well founded ground / apprehension regarding violation of norms in the matter of appointment of primary teachers in the primary schools situated under the jurisdiction of Gorkhaland Territorial Administration, Darjeeling. Rather applicants shifted to a different point of appointment of another batch of 121 candidates while answering the questions posed to the learned Advocate for the applicants whether these judgments of the Apex Court is applicable in the present case.
On perusal of paragraphs 89, 90 and 93 of Board of Control for Cricket in India (Supra) it appears that when review petition is maintainable considering the provisions contained in Order XLVII Rule 1 of the Code of Civil Procedure, 1908, was explained by the Apex Court.
As per law the maintainability of the review petition are based on following conditions: -
i) if there is error on the face of the record;
ii) production of evidence at the time of considering the review petition which could not be produced while adjudicating the writ petition in spite of exercising due diligence by the review applicants;
iii) if there is any mistake or misconception of the Court while adjudicating the writ petition; and
iv) on the principles of actus curiae neminem gravabit.
In the present case, the learned Advocate representing the review applicants have not been able to substantiate their case on the basis of conditions as stipulated above, as a result whereof the order dated 3rd April, 2019 does not warrant any interference and, accordingly, the review petition fails.
Thus, the memorandum of review (RVW 113 of 2019) along with the stay application (CAN 6132 of 2019) are dismissed.
However, there shall be no order as to costs.
Urgent photostat copy of this order, if applied for, be given to the parties upon compliance of all formalities.