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Judgment
All these applications have been filed praying for a review of a common judgment and order dated 21.12.2021 passed in a batch of writ petitions including the petitions connected with the present applications. By the common judgment and order dated 21.12.2021, this Court had allowed the writ petitions.
To appreciate the present prayer for review, it would be convenient to state in brief, the background of the writ petitions.
The writ petitions were instituted challenging the exclusion of the writ petitioners from the select list of candidates for the post of Assistant Teacher in Lower Primary and Upper Primary schools pursuant to 2 (two) advertisements, both dated 11.03.2018. It was projected that the writ petitioners had secured more marks than those selected and appear to be left out on the reason that they did not possess the TET / D. EL Ed. qualification before they had attained the upper age limit. It was however the case of the writ petitioners that they had obtained the aforesaid qualification prior to the selection process.
It was also not in dispute that the principal issue was already decided by this Court vide judgment and order dated 09.11.2021 passed in a bunch of writ petitions, the lead case being WP(C)/345/2021 [Smt. Ajanta Ray vs. State of Assam & Ors.]. The said case was pertaining to recruitment for Graduate Teachers in a similar clause which was allowed by this Court.
This Court had also taken into consideration that during the pendency of the petitions, a Corrigendum was issued by the Personnel (B) Department on 20.02.2021 whereby it was clarified that so far as the OM dated 02.09.2020 is concerned, the second sentence in paragraph 3, namely, “this relaxation shall be applicable only to those candidates who have attained the necessary educational or other qualifications prior to crossing of their existing upper age limit of 40 years shall be deleted from the said office memorandum”.
The Department on the other hand had contended that an intending candidate is required to be eligible as on the date of initiation of the recruitment process which was vide advertisement dated 11.03.2018 and the writ petitioners were lacking in this regard. As regards the corrigendum dated 20.02.2021, it was argued by the Department that the same would be prospective in nature.
After hearing the parties, this Court had come to a finding that as per the advertisement, the qualification of TET / D. EL Ed was required to be procured within a particular age. However, such examination was admittedly not held and therefore, the degree could not be attained within the prescribed age limit. Nonetheless, the petitioners had obtained such qualification before starting of the recruitment process and the same was not in dispute. This Court had also taken note of the Corrigendum dated 20.02.2021 by which the earlier Office Memorandum dated 02.09.2020 was clarified. This Court had held that as the corrigendum was clarificatory in nature, the same would relate back to the notification which was intended to be clarified and therefore had rejected the argument of the Department that the corrigendum would be prospective in nature. This Court has also taken note of another important fact of availability of vacancies which was recorded in terms of the submissions made by the Department on previous occasions when the matters had come up for considerations. The writ petitions were accordingly allowed.
I have heard Shri N.J. Khataniar, learned Standing Counsel, School Education Department. I have also heard Shri J. Laskar, learned counsel appearing in Review Petition No. 121/2023, 89/2024, 118/2024, Shri O. Laskar, learned counsel appearing in Review Pet. 4/2024, Shri M.K. Borah, learned counsel appearing in Review Pet. No. 16/2024, Shri S.P. Choudhury, learned counsel appearing in Review Pet. 134/2023 and Ms. P. Kashyap, learned counsel appearing in Review Pet. 16/2024.
Shri Khataniar, the learned Standing Counsel has submitted that the findings in paragraph 5 of the judgment that the petitioners had possessed the TET / D. EL Ed qualification is not supported by the pleadings and therefore, the present is a fit case for review. He has also submitted that the writ petitioners had crossed the age limit and therefore were ineligible for appointment and this fact could not be brought to the notice of this Court. He has accordingly submitted that the present applications be allowed and the judgment dated 21.12.2021 be reviewed.
In support of his submission, Shri Khataniar, the learned Standing Counsel has relied upon a judgment dated 13.06.2024 passed by a Full Bench in Review Petition No. 149/2019[State of Assam &Anr. Vs. Kamrup District Siksa Sarathi (I) Association and Anr.] reported in GAHC 010205412019 in which the principles of review have been culled out. It is submitted that there is an error apparent on the face of the records and there was discovery of new facts for which the present applications are liable to be allowed.
Per contra, the learned counsel for the opposite party/ writ petitioners has submitted that both the principalgrounds of review are not legally tenable and cannot be construed as grounds of review. It is submitted that vide the addendum dated 29.10.2018, the upper age limit was revised and so far as the aspect of pleadings are concerned, adequate pleadings were there in the writ petitions. In any case, it is submitted that the issue on which the review has been sought for has been adequately discussed and answered by this Court and therefore, the same cannot be a ground for review.
It is no longer res integra that the High Court in exercise of powers under Article 226 exercises plenary jurisdiction in which the power of review is inbuilt. In this regard, one may gainfully refer to the case of MM Thomas Vs. State of Kerala and Ors. reported in (2000) 1 SCC 666 wherein the Hon’ble Supreme Court had made the following observations:
“14.The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court’s power in that regard is plenary. In Naresh Shridhar Mirajkar v. State of Maharashtra a nine-Judge Bench of this Court has recognised the aforesaid superior status of the High Court as a court of plenary jurisdiction being a court of record.”
In a subsequent case of Municipal Corpn. of Greater Mumbai v. Pratibha Industries Ltd.,reported in (2019) 3 SCC 203, similar views have been expressed by the Hon’ble Supreme Court.
While the jurisdiction of a writ court to exercise powers of review is not in doubt, it is trite to follow the principles and spirit of the Code of Civil Procedure while exercising such powers. As settled by a catena of judgments, the powers of review are to be sparingly exercised and only in case when there is an error apparent on the face of the record or there is discovery of new facts which, after due diligence were not within the knowledge or for sufficient other reasons, such powers can be exercised.
In the instant case, the first ground of review is that the writ petitioners did not have the TET / D. EL Ed qualification. However, this aspect has been adequately discussed in paragraph 17 of the judgment which reads as follows:
“17.This Court has also viewed the controversy in question both from the angle of public interest as well as efficiency in public service. Though the rejection of the candidature of the petitioners appears to be on the ground of not acquiring the TET/Dl. Ed. Qualification within a particular age, it is an admitted fact that all the petitioners had acquired the qualification prior to the initiation of the recruitment process. When such qualification was possessed by the petitioners even before the recruitment process was notified, whether the said qualification was obtained within a particular age limit is wholly immaterial. In any case, such requirement having been removed by the clarificatory notification dated 20.02.2021 published during the pendency of the writ petitions, the rejection of the candidature of the petitioners appear to be done on wholly flimsy and unsustainable ground.”
The grounds for review are clearly distinguishable from the grounds of appeal and a review cannot be filed the guise of an appeal. To maintain a review, the error has to be an error apparent on the face of the records. In the instant case, so far as the first ground is concerned, the same has been adequately considered, discussed and answered and therefore, there is no scope for any review.
So far as the second ground is concerned that the writ petitioners had crossed the age, the same ground cannot be a ground of review as it is not a new fact which has been discovered subsequently. Further, this issue was adequately discussed in the judgment and answered.
In the considered opinion of this Court, none of the grounds urged can be construed to be grounds of review and accordingly, the present applications stand rejected.
The Review Applications accordingly stand dismissed.