Wahiduddin Malik vs State Of U.P. And 3 Ors.
2015 Latest Caselaw 3227 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									Reportable
 
									Reserved
 

 
Case :- WRIT - A No. - 11671 of 2015
 

 
Petitioner :- Wahiduddin Malik
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Gautam,H.N. Singh
 
Counsel for Respondent :- C.S.C.,Uma Nath Pandey
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Review Application No. 129811 of 2015

Heard learned counsel for the parties.

Dispute in the instant case is of the appointment as Officiating Principal in the institution in question. The order was passed by the Regional Committee/Joint Director of Education, Basti Division, Basti wherein he has directed to hand over charge of the Officiating Principal to the senior most teacher respondent no.4 in the institution concerned. This order was challenged in the writ petition on the ground that respondent no. 4 had earlier refused to accept the offer and therefore now he cannot be given charge.

After hearing learned counsels for the parties the matter was decided on 18.3.2015, which was challenged in Special Appeal No. 177 of 2015. At the time of hearing of the Special Appeal, the appellant made a statement that he would file a review petition on the ground that the Writ Court did not consider that the institution is a minority institution. On this submission, Special Appellate  Bench dismissed the appeal as withdrawn without expressing any opinion on the merits of the submission, giving liberty to the appellant to file a review petition.

Resultantly, this review petition has been filed on the ground that the Committee of Management of the minority institution is entitled to choose and appoint any person as Head of the institution or Teacher. The power of educational authorities is limited only to look into whether the selected candidate is qualified or not and approve or disapprove the selection, accordingly. The institution being a minority institution, the educational authorities have not much to say in the matter of appointment of Head and the teacher of the institution and therefore, the Court ought not to have interfered in the arrangements made by the authorities of the institution.This is an error apparent on the face of record and the order dated 18.3.2015 if allowed to stand would result in substantial failure of justice.

Learned Senior Counsel for the respondent however, submits that the question raised in the review petition was not argued by the petitioner before the Writ Court. There is no ground in the writ petition that the educational authorities could not have interfered in the decision taken by the management of the minority institution. In the garb of review, the applicant is seeking rehearing of the matter which is impermissible in law. It was open for the petitioner to challenge the judgment of writ Court in appeal on all available grounds including the ground of the privilege enjoyed by a minority institution. The applicant has chosen not to argue the appeal rather got it dismissed to file this review application. The appeal has been dismissed as withdrawn on the request made by the applicant. There is no justification for exercise of power of review as the Court may not be able to take a different view which has been taken by it earlier. Review cannot be treated as an appeal to rehear the writ petition. The plea taken in the review was available to the petitioner but it was not argued before the writ Court.

Reliance has been placed upon the judgment of the Apex Court in Inderchand Jain(Dead) through LRs vs. Motilal(dead) through LRs. reported in (2009)14 SCC 663 to submit that the review is impermissible for rehearing and correction of an erroneous decision on merits as the review is not an appeal.

Further, on the merits of the plea taken by the petitioner that the arrangement made by the Authorised Controller being management of the minority institution could not have been interfered by the Regional Level Committee, the submission of the learned counsel for respondent is that the order under challenge is the order passed by the Regional Level Committee in appeal filed by respondent no. 4 against the order of the District Inspector of Schools, Basti. There is no order of the Authorized Controller for appointment of the petitioner on the post of Officiating Principal of the institution in question.

Refering to page 92 of the paper book it is submitted that the order dated 24.8.2013 passed by the Authorized Controller cannot be said to be an order of appointment of the Officiating Principal, rather it is only an interim arrangement. The petitioner was never appointed as Officiating Principal by the Authorized Controller and, therefore, he has no right to maintain the review.

In Rejoinder, the learned Senior counsel for the petitioner submits that the District Inspector of Schools vide order dated 12.11.2014 has directed the Authorized  Controller to appoint a Principal/officiating Principal in accordance with the provisions of Section 16-GG of the Intermediate Education Act, 1921 on the representation of respondent No.4.

The order passed by the District Inspector of Schools was perfectly justified and could not have been interfered by respondent No.2, Joint Director of Education in view of the fact that the institution in question is a minority institution.

However, indisputably the fact that the institution in question is a minority institution has escaped attention of the writ Court while passing the judgement and order dated 18.3.2015. This is an error apparent on the face of record and is a mistake of fact both by the Court and the Advocates who had argued the matter earlier.

The power of the Court to review its judgment/decision is permissible under Section 114 CPC on the ground which are enumerated in Order 47 Rule 1 CPC and read as under:-

"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 a 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."

The law on this subject i.e. exercise of power of review as propounded in the judgment of the Apex Court in Inderchand Jain(Dead) through LRs vs. Motilal(dead) through LRs. reported in (2009)14 SCC 663 is as follows:-

"Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate."

In Board of Control for Cricket in India v. Netaji Cricket Club reported in 2005(4)SCC 741, the Apex Court has held in paragraph 89 and 90 as under:-

"89. Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason."

"90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit.

However, the words of care and caution have been added from time and again in the directions of the Apex Court and various High Courts in exercise of  the power of review. In Lily Thomas vs. Union of India  reported in 2000(6) SCC 224. Paragraph 56 reads as under:-

"56. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise (emphasis supplied).

The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment."

In paragraph 10 Inderchand Jain(supra) the Apex  Court has held as under:-

"10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A re-hearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.

Review is not appeal in disguise."

In the light of the above referred settled legal position on the scope of review and the facts and circumstances of the case, this Court finds that the fact of the petitioner-institution being a minority institution was required to be given due consideration to examine the orders passed by the educational authorities. It has escaped attention of the Court and this was not even pleaded by the learned counsel for the petitioner.

This was the most relevant question to be considered in the facts and circumstances of the case. As noticed above, the power of review can also be exercised for sufficient reason which is wide enough to  include the misunderstanding of fact or law by a Court or even by an Advocate. This Court finds that in the facts and circumstances of the case, sufficient reason exists for review of the judgment and order dated 18.3.2015. The application for review is therefore entertained invoking the doctrine of actus curiae neminem gravabit which means 'an act of Court shall prejudice no man".

Now, looking to the order passed by the Regional Level Committee i.e. respondent No.2 in the light of fact that the institution in question is a minority institution, this Court is of the view that the educational authorities have no power to direct the management or for that matter the Authorized Controller to appoint Officiating Principal in a particular manner. The District Inspector of Schools has taken note of various facts placed before it by respondent no.4 but desist himself from making any observations on the issue of selection of a teacher to officiate on the post of Principal. While rejecting the representation of the petitioner, it was directed that the selection for the post of Principal be made in accordance with Section 16-GG of the Intermediate Education Act. The Regional Level Committee, Basti Region, Basti i.e. respondent No.2 has erred in setting aside the direction given by the District Inspector of Schools and in concluding that respondent No.4 being a senior most teacher is entitled to hold the post of Offficiating principal. It appears that the Regional Level Committee has totally ignored that the institution being a minority institution is empowered to appoint an Officiating Principal of its own choice.

In this view, the judgment and order dated 18.3.2015 cannot be sustained. The review application is allowed. The judgment and order dated 18.3.2015 is hereby reviewed. The order passed by the Regional Level Committee dated 13.2.2015 under challenge in the writ petition is set aside.

However, the Authorised Controller who is managing the institution, is directed to take a final decision regarding the claim of the petitioner and respondent No.4 for officiating the post of Principal. A fresh order is thus required to be passed in accordance with law, as early as possible.

With the above observations and directions, the review petition is allowed.

Order Date :-15.10.2015

P.P.