Gujarat High Court
Chetnaben Jayrambhai Savaliya vs Saurashtra University on 2 April, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/LPA/1062/2022 ORDER DATED: 02/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1062 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 12315 of 2004
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 1062 of 2022
With
R/LETTERS PATENT APPEAL NO. 1063 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 17738 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022 In R/LETTERS PATENT
APPEAL NO. 1063 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 17738 of 2011
==========================================================
CHETNABEN JAYRAMBHAI SAVALIYA
Versus
SAURASHTRA UNIVERSITY & ORS.
==========================================================
Appearance:
MR GM JOSHI, SENIOR COUNSEL WITH MS MAMTA R VYAS(994) for the
Appellant(s) No. 1
MR AAKASH CHHAYA, AGP for the Respondent(s) No. 4
MR AR THACKER(888) for the Respondent(s) No. 1
MS AGNEYA B MANKAD(12768) for the Respondent(s) No. 2,3
MR SHALIN MEHTA, SENIOR COUNSEL WITH MS SHIKHA D
PANCHAL(10764) for the Respondent(s) No. 5
==========================================================
CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 02/04/2025
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE BIREN VAISHNAV) Page 1 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined
1. These appeals have been filed by the appellants who are the original petitioners. Challenge in these appeals is to the common CAV judgement dated 04.05.2022 passed by the learned Single Judge by which the learned Single Judge dismissed the petitions filed by the petitioner -
common in both the petitions.
2. Letters Patent Appeal No. 1062 of 2022 arises out of a petition being Special Civil Application No. 12315 of 2004. By way of the said petition, the petitioner had prayed for setting aside the decision of the Saurashtra University dated 12.06.2004 by which the representation of the original petitioner was rejected in context of her non-appointment as a full time lecturer on the post in question.
2.1 Letters Patent Appeal No. 1063 of 2022 is preferred challenging the judgement passed in Special Civil Application No. 17738 of 2011 which was filed praying for a writ of mandamus to quash and set aside the order of Page 2 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined the Tribunal dated 04.10.2011 rejecting the review application of the appellant - original petitioner.
3. Reiteration of facts is not necessary in light of the same having been set out by the learned Single Judge to which there can be no dispute. Paragraphs no. 3 to 3.15 of the judgement setting out the facts read as under:
"(3) The petitioner is serving as a part-timer Lecturer. Though, it is her case that she was selected for full-time Lecturer, but the respondents have illegally appointed the respondent No.5 on such post. The petitioner is having degree of Bachelor of Arts (BA) in Psychology. The petitioner cleared the said examination with 1st Class securing 60% marks. She was appointed as a part-timer Lecturer in Psychology subject by the respondent No.3, on 01.12.1992.
3.1) Thereafter, the respondents published an advertisement for filling up the post of the full-time Lecturer on 02.09.1993.
3.2) Pursuant to the said advertisement, the respondent Nos.2 and 3 received total 32 applications. The selection Committee was constituted, however no one was appointed pursuant to the said advertisement & interview, as it was held by the Selection Committee that the respondent No.2 and 3 did Page 3 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined not obtain any "no objection certificate" for making such appointment for the teaching staff. Accordingly, the respondent No.3 - College requested the State Government to issue "no objection certificate" for filling up the post of teach staff. Thereafter, vide order dated 06.07.1994, the commissioner of Higher Education gave "No Objection Certificate" in respect to the appointment of the teaching staff.
3.3) Thereafter, a fresh advertisement was issued by the respondent-Trust for which the interviews were held on 29.05.1995. The petitioner and the respondent No.5 appeared in the said interview and in the final result, the respondent was placed at serial No.1 and the petitioner was placed at the serial No.2 by the Selection Committee. The list was not made available to the petitioner, however, when the petitioner learned about the selection of the respondent No.5, the petitioner started inquiry about the procedure followed by the respondents with respect of the interview held by the respondents was validly held and there was no defect at all.
3.4) Being aggrieved by the said selection of the respondent No.5, the petitioner filed an application being Application No.59 of 1995 before the Gujarat Affiliated College Service Tribunal at Ahmedabad under Section 8 of the Gujarat Affiliated Colleges Services Tribunal Act. It appears that an ad-interim relief was granted by the Tribunal of maintaining status quo by the order dated 22.02.1996. The respondent No.5 Page 4 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined made an application for joining in the said proceedings, which was rejected by the Tribunal.
3.5) Being aggrieved by the said order of the Tribunal, the respondent No.5 approached this Court by filing writ petition being Special Civil Application No.892 of 1999, which was allowed by this Court vide order dated 05.04.1999 and the respondent No.5 was allowed to join as party respondent in the application being Application No.59 of 1995 filed by the petitioner.
3.6) By the judgment and order dated 14.02.2003, the Tribunal rejected the application being Application No.59 of 1995 filed by the petitioner and the status quo order, as granted earlier, was also vacated.
3.7) Being aggrieved, the petitioner challenged the said judgment and order dated 14.02.2003 by filing a writ petition being Special Civil Application No.2174 of 2003. This Court rejected the said petition vide order dated 07.03.2003, with a liberty reserved in favour of the petitioner to challenge the appointment of the respondent No.5 appointing her on the post of full-time Lecturer.
3.8) The petitioner, thereafter filed a writ petition being Special Civil Application No.2705 of 2003 before this Court challenging the selection process and the selection of respondent No.5 to the post of full-time Lecturer, however the petitioner withdrew the said petition to make Page 5 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined representation to the respondent-University.
3.9) Accordingly, the petitioner made a representation to the respondent-University. It appears that total four numbers of representations made by the petitioner before the respondent University.
3.10)The petitioner, thereafter again, challenged the selection of the respondent No.5 as full-time Lecturer by filing a writ petition being Special Civil Application No.7413 of 2004, which was dismissed in limine by this Court on the ground of inordinate delay as well as on the ground of res judicata.
3.11)Being aggrieved, the petitioner filed a Letters Patent Appeal No.1723 of 2004 before the Division Bench, challenging the order passed by the Co-ordinate Bench. The said Letters Patent Appeal was withdrawn by the petitioner and the same was disposed of vide order dated 14.09.2004 reserving liberty in favour of the petitioner to challenge the decision on the representation filed before the University.
3.12)The petitioner, thereafter filed the captioned writ petition being Special Civil Application No.12315 of 2004, seeking direction on the University to decide the representation dated 19.05.2008, during the pendency of the petition, it appears that the respondent University decided the representation by the order dated 12.06.2004. Accordingly, the petitioner Page 6 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined amended the writ petition and has challenged the decision dated 12.06.2004.
3.13)In Special Civil Application No.17738 of 22011, the petitioner has challenged the order dated 04.10.2011 passed by the Tribunal in Restoration Application No.1 of 2011 preferred by the petitioner. The said Restoration Application No.1 of 2011 was filed by the petitioner by taking clue from the order dated 09.12.2010 passed by the Division Bench in Letters Patent Appeal No.2520 of 2010.
3.14)The Tribunal, accordingly, rejected the Restoration Application No.01 of 2011, which is challenged in the captioned writ petition being Special Civil Application No.12315 of 2004.
3.15)Before the Division Bench passed the order passed dated 09.12.2010 in Letters Patent Appeal No.2520 of 2010, the petitioner filed Misc. Civil Application No.2386 of 2010 in Special Civil Application No.2174 of 2003 against the order dated 07.03.2003 rejecting the writ petition filed by the petitioner. Thus, the review application was filed after a period of 7 years, however, it is contended that subsequently, when the petitioner was supplied the information under the Right to Information Act, such review application was necessitated as the order before the Tribunal was obtained on fraud or misrepresentation by the respondents.
4. Mr. G.M. Joshi, learned Senior Advocate appearing Page 7 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined with Ms. Mamta Vyas, learned advocate for the appellant made the following submissions:
(A) That the observations made by the learned Single Judge before proceeding to decide the issue that the case of the appellant was a classic case where the litigant keeps on spinning the litigation wheels of fortune until he/she hits the jackpot is an observation which is misconceived. From the very inception, it indicates that the learned Single Judge misdirected himself in approaching the issue and the consequential findings therefore are bad.
(B) That the appellant was initially appointed pursuant to an interview held on 06.03.1994.
Reading the communication dated 13.05.2003, addressed by the Saurashtra University to the respondent college, he would submit that it was apparently very clear from the communication that the University too was of the opinion that since the college was a non-grantable college, no NOC was Page 8 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined needed for which the interviews were held on 06.03.1994. The cancellation of the selection of the appellant and thereafter holding of a second interview on 29.05.1995 wherein the respondent no.
5 was selected, even according to the University was misplaced. Only on an oral instruction of a Government Official that the selection was bad as no NOC was required, was misconceived. Even today neither the State Government nor the college has, pursuant to the letter dated 13.05.2003, made their stand clear on the clarification sought by the University i.e. whether the selection of the appellant made pursuant to the interviews held on 06.03.1994 be set aside and a selection been undertaken by a subsequent interview by which the respondent no. 5 was selected was valid.
(C) That reading the order of the learned Single Judge would indicate that the learned Single Judge has misconceived himself by tracing the history of Page 9 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined the litigation carried out by the appellant which were nothing but litigation pursued in good faith. At all stages, an endeavour was made by the appellant to substantiate her right that she was working as a full time lecturer in Psychology subject. The Special Civil Applications and the Letters Patent Appeals filed from time to time though may have indicated that the Tribunal's view that the appellant had failed to establish her right as a full time lecturer may have closed the issue, however, it was very apparent that the question of whether the selection of respondent no. 5 should have been undertaken by virtue of an interview process of 29.05.1995 when infact this first selection pursuant to which the appellant was appointed and which required no NOC was never decided. The learned Single Judge therefore was unfortunately enamoured by the observation that the petitioner was trying to litigate to hit a jackpot. He would submit that the observation of the learned Single Judge that the Page 10 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined appellant had very cleverly moulded the issue in Special Civil Application No. 2174 of 2003 was a statement and an opinion particularly branding the appellant to have surreptitiously cleared through the process of law that the learned Single Judge could not have rendered and the appeal therefore deserves to be allowed.
(D) Having worked as a full time lecturer for over so many years, now that the respondent no. 5 has been declared as surplus and moved out and when it is an undisputed fact that no NOC was necessary for appointing the appellant when she had been selected pursuant to an advertisement and interview on 06.03.1994 when admittedly the college was unaided, the appellant ought to have been continued in service.
5. Mr. Shalin Mehta, learned Senior Advocate appearing with Ms. Shikha Panchal, learned advocate for private respondent no. 5 would submit as under:
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(a) That there can be no fault finding with the judgement and order of the learned Single Judge. In fact it has come on record by setting out the sequence of the litigation that at the first instance the only challenge before the Tribunal was to the appellant not being a full time lecturer.
Subsequently, when the present respondent no. 5 was made a party to the Tribunal, the Tribunal upheld the selection of respondent no. 5.
(b) That the challenge to the Tribunal's order failed inasmuch as the petition filed against the Tribunal's order dated 14.02.2003 was dismissed on 07.03.2003. Though, the court while dismissing the petition had observed that since the Tribunal had no jurisdiction to decide the question of appointment and a right was reserved for the appellant to challenge the same, no such challenge was made.
Inviting our attention to the order dated 07.03.2003, Mr. Mehta would then submit that immediately Page 12 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined within a week thereafter in Special Civil Application No. 2705 of 2003, in a petition seeking a relief of mandamus, the only direction that the appellant obtained was that a representation if made be decided by the University. Representations made from time to time were not being decided as a result of which Special Civil Application No. 7413 of 2004 was filed. That petition was dismissed by an order dated 05.07.2004 on the ground that the challenge to the respondent no. 5's selection which was made in the year 1995 was challenged after an inordinate delay of 8 years and therefore the petition was rightly dismissed. On an appeal being filed, the Division Bench of this court only clarified that it would be open for the appellant to file a petition seeking a writ of mandamus to get his representation decided. The observation of the Division Bench was that in the event a decision is taken, it will be open for the appellant to file a fresh petition. In other words, at no stage was the Page 13 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined selection of respondent no. 5 a matter of challenge
(c) That even otherwise, once the Tribunal had dismissed the application of the appellant on 14.02.2003, which judgement was affirmed by this court in Special Civil Application No. 2174 of 2003 on 07.03.2003, ingeniously within a week thereafter the challenge to the selection was dismissed under the guise of making a representation and then calling for a review which was withdrawn on 24.09.2010. The appellant approached the Tribunal and the Tribunal rightly rejected the review application holding that the review is not maintainable. The learned Single Judge therefore did not commit any error.
6. Mr. Akash Chhaya, learned Assistant Government Pleader and Mr. Shivang Thacker, learned advocate appearing for the University would support the order passed by the learned Single Judge.
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7. We have perused the conclusions arrived at by the learned Single Judge. He has traced the proceedings filed by the appellant in various fora and which he has listed in paragraph no. 8 of the judgement under challenge which reads as under:
"(8) The petitioner has filed following proceedings challenging the selection of the respondent no.5.
1) Application No.59 of 1995(Tribunal), which is rejected on 14.02.2003;
2) Special Civil Application No.2174 of 2003, which is rejected on 07.03.2003;
3) Special Civil Application No.2705 of 2003, which is withdrawn on 13.03.2003;
4) Special Civil Application No.7413 of 2004, which is dismissed on 05.07.2004;
5) Letters Patent Appeal No.1723 of 2004, which is dismissed on 14.09.2003;
6) Misc. Civil Application No.2386 of 2010, which is rejected on 29.09.2010;
7) Letters Patent Appeal No.2520 of 2010, which is dismissed on 09.12.2010;
8) Restoration Application No.1 of 2011 in Application No.59 of 1995(Tribunal); which is rejected on 04.10.2011;
9) and the present writ petitions."
8. Having independently assessed the reasonings, what we find is as under:
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(i) The appellant had approached the Tribunal by filing Application No. 59 of 1995. It was her case that she had been selected as a lecturer in Psychology on a part-time basis and thereafter on an advertisement for the post of full-time lecturer and an interview held on 06.03.1994 by a properly constituted committee, she was appointed as a full-time lecturer. It was her case before the Tribunal that the subsequent interview held on 29.05.1995 was unnecessary and the appointment of respondent no. 5 pursuant to the said interview was out of animosity.
(ii) Perusal of the original application before the Tribunal would indicate that she candidly admitted that she participated in the selection process and only when she found that somebody else was to be appointed and she apprehended her termination, she approached the Tribunal. The prayer before the Tribunal was to direct the opponents to protect her right as full-time lecturer and set aside the second advertisement and interview held on 29.05.1995. The stand of the college before the Page 16 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined Tribunal was that the NOC pursuant to which the appellant was appointed was obtained only after the interview and therefore her selection was bad. From the proceedings, we note that the Tribunal while deciding the application vide judgement dated 14.02.2003 records that initially the respondent no. 5 was not joined as a party.
When she made an application for joining party, the same was rejected and only after she successfully obtained a relief in the High Court, the respondent no. 5 was joined as a party to the Tribunal's proceedings. The Tribunal then heard the matter and specifically opined that there is nothing on record to suggest that the appellant was appointed as a full-time lecturer after due process and the application was dismissed.
(iii) Special Civil Application No. 2174 of 2003 was filed challenging the legality of the order of the Tribunal.
While dismissing the petition and affirming the order of the Tribunal, this court in the order dated 07.03.2003 observed that in case the Tribunal was of the opinion that Page 17 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined it had no jurisdiction it was open for the petitioner to challenge the action of recruitment in accordance with law. The court also opined that the Tribunal had no jurisdiction to examine the aspect of selection and it was open for the petitioner to challenge the appointment of respondent no. 5.
(iv) It is intriguing to note that after having failed to seek a relief against the order of the Tribunal which closed the doors of the appellant in the context of her right to establish that she was a full-time lecturer, curiously within a week thereafter on 13.03.2003, in Special Civil Application No. 2705 of 2003, which was a petition preferred challenging the interview and selection of 29.05.1995, that petition was withdrawn with a view to make a representation to the University. Representations were made on the dates as set out by the learned Single Judge on 19.03.2003, 13.08.2003, 08.03.2004 and 21.04.2004.
(v) Special Civil Application No. 7413 of 2004 was filed Page 18 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined again challenging the selection of respondent no. 5 as a full-time lecturer pursuant to the interview of 29.05.1995.
It needs to be noted here that having withdrawn the earlier petition only with a view to make a representation, obviously, a subsequent petition within one year, after having obtained only orders to make representations was ingenious which has so been observed by the learned Single Judge. The petition was dismissed on the ground of inordinate delay in challenging the selection after 8 years.
(vi) On an appeal being filed, the Division Bench only clarified that on the observations made by the learned Single Judge on the question of res judicata, such observation was misconceived as what the appellant had sought was only a prayer seeking a writ of mandamus for a direction to decide the representation and only that permission was granted. In the meantime, by the impugned order, the representation was decided which was a subject matter of Special Civil Application No. Page 19 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined 12315 of 2004. A subsequent petition in the year 2011 which is also a part of this judgement challenged the rejection of the review of the order of 2003. That review was rejected by the Tribunal.
9. Obviously, therefore, the appellant kept approbating and reprobating and resorted to these litigations subsequently which were a part of the decision making process of the learned Single Judge. It is in the background of these litigations that the learned Single Judge in the conclusion so made passed these observations. The conclusion, which quotes the earlier orders passed by this court, when perused indicate that no fault can be found from the reasonings of the learned Single Judge. Paragraphs no. 11 to 24 of the order of the learned Single Judge read as under:
"(11) By the judgment and order dated 14.02.2003, the Tribunal rejected the appeal by observing that the petitioner was unable to point out any appointment order by which she was appointed as a full-time Lecturer after following due process of law. The Tribunal Page 20 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined has observed that in the subsequent selection process, the respondent No.5 was selected and placed at serial No.1 by the Selection Committee and the petitioner was selected at serial No.2. From the entire records and from both the writ petitions, the petitioner has miserably failed to show any order, by which, she was appointed as a full-time Lecturer and it is admitted fact that pursuant to the interview which was held on 29.05.1995, the petitioner was placed at serial No.2, whereas the respondent no.5 was placed at serial No.1 in the select list and accordingly, respondent No.5 was appointed to the post of full-time Lecturer in Psychology subject, which was also approved by the competent authority.
(12) The judgment and order dated 14.02.2003 rejecting the appeal of the petitioner was challenged by the petitioner by filing Special Civil Application No.2174 of 2003.
Vide order dated 07.03.2003, the writ petition filed by the petitioner was rejected in the order dated 07.03.2003, by recording the statement of the learned advocate appearing for the which reads as under.
"2.xxxxx So far as the decision of the tribunal for non-granting of pay-scale is concerned Mr.Mangukia fairly submitted that since there is no order for appointment as full time lecturer the petitioner is not in a position to show any material of documentary evidence to satisfy that the petitioner is working as full time lecturer."Page 21 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025
NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined (13) In the paragraph No.4, the Coordinate Bench has observed thus:
"4. Having considered the above, and on perusal of the order passed by the tribunal, it is clear that the tribunal has rejected the application of the petitioner on the ground that the petitioner has not been able to show any appointment order as full time lecturer and therefore in my view the tribunal is right in rejecting the application made by the petitioner for grant of payscale of full time lecturer. It can not be said that the tribunal has committed any jurisdictional error while rejecting the claim of the petitioner as full time lecturer with effect from 1.7.93. So far as challenge to recruitment or appointment pursuant to the advertisement is concerned I am primafacie of the view that the tribunal had no jurisdiction to examine the same aspect and rightly the tribunal has also dismissed that part of the application by not examining the contentions. Hence, I find that no case is made out for interference of this court and hence the petition is rejected with clarification that it will be open to the petitioner to challenge the appointment pursuant to the advertisement for recruitment and appointment of lecturer in accordance with law."
(14) Thus, the Coordinate Bench has observed that the Tribunal was justified in rejecting the application of the petitioner on the ground that the petitioner was unable to show any appointment order as she was working as full-time Lecturer. However, the Coordinate Bench has dismissed the writ petition filed by the petitioner with a clarification that it will be open to the petitioner to Page 22 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined challenge the appointment of the respondent No.5, pursuant to the advertisement for recruitment for the post of Lecturer, in accordance with law.
(15) Instead of challenging the appointment of the respondent no.5, before the Tribunal, the petitioner directly filed the writ petition being Special Civil Application No.2705 of 2003 which was disposed of as withdrawn to make a representation vide order dated 13.03.2003. The same reads as under.
"4. Having considered the above, I am of the view all these contentions can only be examined by the University while considering the question of granting approval and normally not by this court while exercising power under Article 226 of the Constitution of India.
5. Mr.Mangukia at this stage seeks permission to withdraw the petition with a view to make proper representation before the University. Without expressing any opinion further merits permission is granted. Petition is disposed of as withdrawn."
(16) Thereafter, the petitioner made representations on 19.03.2003, 13.05.2003, 13.08.2003 and 08.03.2004.
(17) It appears that since there was no reply to her representations, the petitioner filed Special Civil Application No.7413 of 2004 challenging the selection of Respondent no.5. The said petition was dismissed by the order dated 05.07.2004 by observing thus:-
Page 23 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined "The petition deserves to be dismissed on the ground of inordinate delay in as much as the process of interview held on 29th May, 1995 has been challenged before this Court first in the year 2003 and now in the year 2004. The inordinate delay of eight years has not been explained. Evidently, so long as the petitioner's service was protected pending her application before the Tribunal, the petitioner did not consider it necessary to challenge the selection of the respondent No.5. Now that the petitioner has failed before the Tribunal and before this Court, she has challenged the selection of the respondent No.5. This Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India shall not examine the correctness of selection made as far back as in the year 1995.
Further, the Special Civil Application No.2705/2003 was withdrawn by the petitioner unconditionally. No liberty was reserved to the petitioner to file fresh petition in the same subject matter. The Hon'ble Supreme Court and this Court have time and again held that "filing of fresh writ petition in the same subject matter after withdrawing the first writ petition without liberty to file fresh petition is opposed to the public policy and such second writ petition is barred being against the public policy" (reference can be had to the judgment of the Hon'ble Supreme Court in the matter of Sarguja Transport Service v/s. State Transport Appellate Tribunal, Gwalior and others [AIR 1987 SC 88] and of this Court in the matters of Natwar Textile Processors Pvt. Ltd. and another v/s. Union of India and others [31(1) GLR 338] and of Bhagwandas D.Tandel v/s. S.N.Sinha, Page 24 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined Director General of Police and others [37(1) GLR 782]). The petition is dismissed in limine."
(18) The petition was dismissed in limine on the ground of inordinate delay in challenging the selection process after 8 years. This Court has further observed that the writ petition being Special Civil Application No.2705 of 2003, which was filed by the petitioner and the same was withdrawn unconditionally and no liberty was reserved to the petitioner to file fresh petition in the same subject matter and while placing reliance on the judgment of the Supreme Court, the writ petition was dismissed.
(19) The petitioner thereafter filed the Letters Patent Appeal No.1723 of 2004 challenging the aforesaid order dated 13.03.2003. The same was also dismissed. While rejecting the LPA vide order dated 14.09.2004, the Division Bench, disposed of the LPA as withdrawn by observing thus :-
"4. Upon perusal of the papers, we find that in all the three petitions the prayer which the appellant desires to make in the new petition, was not made. In our opinion, the question of res judicata cannot arise if a petition with such a prayer is filed by the appellant, because till today respondent No 4 University has not taken any final decision on the representation. If no final decision has been taken so far, the question of challenging the same has not arisen so far.
5. In the aforesaid circumstances, with permission to file a petition praying for a Page 25 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined mandamus against respondent No. 4 University, learned advocate Shri Mangukiya seeks permission to withdraw this appeal. The appellant is permitted to withdraw the appeal so as to file a fresh petition with such a prayer.
6. If respondent No. 4 University has already taken a decision on the representation, but the same has not been communicated to the appellant, needless to say that it would be open to the appellant to file a petition challenging the decision, which might have been rendered by respondent No. 4 University, which has not been communicated to the appellant so far. The appeal stands disposed of as withdrawn."
(20) Thus, the Letters Patent Appeal was withdrawn with a view to file a fresh petition challenging the decision of the respondent-University taken on the representation by filing a writ petition. The Division Bench has disposed of the writ petition by observing that a question of res judicata will not arise, if the prayer with regard to deciding of his representation was not made.
(21) It is shocking to note that, the petitioner preferred Misc. Civil Application No.2386 of 2010 after more than a period of 7 years seeking review of the order dated 07.03.2003 passed in Special Civil Application No.2174 of 2003 by which his initial challenge to the Tribunal judgement rejecting her appeal no.59 of 1995, was rejected. Her review application was was rejected vide order dated 24.09.2010.
(22) The petitioner filed a Letters Patent Appeal Page 26 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined No.2520 of 2010 against the order dated 24.09.2010 rejecting the Review Application No.2836 of 2010 vide order dated 09.12.2010.
The Division Bench, after hearing learned
advocate Mr.Mangukiya passed an
ex-parte order and dismissed the appeal with a liberty to make appropriate application before the Tribunal. Before the Division Bench, it was contested that the order passed by the Tribunal and confirmed by this Court in Special Civil Application No.2174 of 2003 vide order dated 07.03.2003 was obtained by fraud. The Division Bench, after reposing faith in the statement made by the learned advocate appearing for the petitioner, dismissed the LPA, vide order dated 09.12.2010 however since a liberty was reserved to file an application before the Tribunal and it was clarified that the order dated 07.03.2003 passed by the Co- ordinate Bench in Special Civil Application No.2174 of 2003 shall not come in the way of the present petitioner in making application before the Tribunal. The Division Bench in the order dated 09.12.2010 has observed thus :-
"5. After discussion at the bar of the ratio of aforesaid judgments, it was clear and fairly conceded that the alleged fraud or misrepresentation was allegedly committed before the Tribunal and not before the High Court when the order dated 7/3/2003, as aforesaid, was made. It was also culled out from the observations of the Apex Court that in case fraud were established, the principle of res judicata should not come in the way of the aggrieved party. Under such circumstances, the appellant was required to Page 27 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined approach the Tribunal and not apply for recalling the order based on the appellant's own statement and the present appeal preferred from the impugned order was not required to be entertained.
6. Therefore, the appeal as well as the civil application are dismissed subject to the observation that the appellant shall be at liberty to make appropriate application before the Tribunal concerned, which may entertain such application in accordance with law. It is clarified that we have not expressed any opinion about the allegations made and contentions raised by the appellant before us, nor are we expressing any opinion about the advisability or maintainability of the application, which the appellant may file before the Tribunal. However, subject to the above observations, we further clarify that the order dated 7/3/2003 of Ld. Single Judge in Special Civil Application No. 2174 of 2003 shall not come in the way of the appellant in making an application before the Tribunal, as aforesaid. D S Permitted."
(23) Taking clue from the ex parte order passed by the Division Bench, the petitioner filed a Restoration Application No.1 of 2011 in Application No.59 of 1995 which was rejected and dismissed by the Tribunal vide order dated 14.02.2003. The said application was also dismissed vide order dated 04.10.2011. Thus, by obtaining such order and despite the rejection of the writ petition being Special Civil Application No.2174 of 2003, withdrawal of special civil application no.2705 of 2003, the petitioner ultimate succeeded in getting the order of filing a Page 28 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined review/restoration application on the judgment dated 14.02.2003 rejecting the Application No.59 of 1995, after a period of almost 10 years. It is a very interesting to note that in all the aforementioned proceedings, the judgment dated 14.02.2003 rejecting the Application No.59 of 1995 has not been disturbed in any manner.
Accordingly, the petitioner's restoration application No.1 of 2011 has been rejected by the Tribunal vide order dated 04.10.2011 which is challenged in the captioned writ petition being Special Civil Application No.17738 of 2011. The application was dismissed with costs of Rs.5,000/-. Though, the application is named and styled as restoration application, however the Tribunal has treated it as a review application and has considered the entire record and reconsidered the submissions advanced by the petitioner and after perusing the entire record, ultimately did not think it fit to entertain the review application or restoration application and to interfere with the judgment and order dated 14.02.2003. The Tribunal has considered the material which was produced before it and again it is reiterated and reaffirmed that the petitioner has not produced anything on record to show that she was appointed as a full time Lecturer.
(24) The Tribunal has observed that the petitioner was paid an amount of Rs.1100/-
which was fixed for part-time Lecturer and also whatever additional work was given to her, she was accordingly paid. By the documents which are produced on record in Page 29 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined the writ petition, the petitioner has endeavoured to show that she has taken 21 lectures which have been taken by her as a full-time Lecturer, however she has been assigned the work of full-time Lecturer since her initial appointment was a part time Lecturer and in all these proceedings which are noted hereinabove, she is unable to show that she was appointed as full time Lecturer. Even if such material was produced before the Tribunal, the same will have no impact on the selection of the Respondent no.5 as a full-time lecturer. Merely assigning the work of a full-time Lecturer to the petitioner will not make her eligible to be appointed as a full time Lecturer. On the contrary, the Selection Committee has appointed the respondent no.5 by following the appropriate selection procedure, as a full-time Lecturer, but the respondents are unable to effectively take her duties as full-time Lecturer because of the litigation filed by the petitioner and the respondent no.5 is declared surplus."
10. We agree with the submission made by the learned senior counsel Shri Shalin Mehta appearing for respondent no. 5 that in an intra court appeal, the position is well settled that unless the court comes to the conclusion that the judgement of the learned Single Judge is perverse and suffers from an error apparent in law, the appellate court cannot delve into extensive reappreciation Page 30 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined of evidence and overturn the judgement. He placed reliance on a decision in the case of Airports Authority Of India vs. Pradip Kumar Banerjee rendered in Civil Appeal No. 8414 of 2017. Paragraphs no. 36-37 read as under:
"36. The law relating to the exercise of intra-Court jurisdiction is crystallised by this Court in the case of Management of Narendra & Company Private Limited v. Workmen of Narendra & Company, wherein it was held as under:
"5. Once the learned Single Judge having seen the records had come to the conclusion that the industry was not functioning after January 1995, there is no justification in entering a different finding without any further material before the Division Bench. The Appellate Bench ought to have noticed that the statement of MW 3 is itself part of the evidence before the Labour Court. Be that as it may, in an intra-court appeal, on a finding of fact, unless the Appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief."
(emphasis supplied) Page 31 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025 NEUTRAL CITATION C/LPA/1062/2022 ORDER DATED: 02/04/2025 undefined
37. The position is, thus, settled that in an intra- court writ appeal, the Appellate Court must restrain itself and the interference into the judgment passed by the learned Single Judge is permissible only if the judgment of the learned Single Judge is perverse or suffers from an error apparent in law. However, the Division Bench, in the present case, failed to record any such finding and rather, proceeded to delve into extensive re- appreciation of evidence to overturn the judgment of the learned Single Judge."
11. In light of the aforesaid, both the appeals are dismissed. Connected civil applications stand disposed of.
(BIREN VAISHNAV,ACJ) (HEMANT M. PRACHCHHAK,J) DIVYA Page 32 of 32 Uploaded by DIVYA PILLAI(HC00199) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:12 IST 2025