Mahendra Kumar Gond vs D.I.O.S. & Others
2016 Latest Caselaw 2977 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 32
 
Review Application No.348852 of 2009
 
in re:
 
Case :- SPECIAL APPEAL No. - 1112 of 2009
 

 
Appellant :- Mahendra Kumar Gond
 
Respondent :- D.I.O.S. & Others
 
Counsel for Appellant :- Ranjeet Asthana
 
Counsel for Respondent :- C.S.C.,Indra Raj Singh
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Pramod Kumar Srivastava,J.

This review application has been filed on the ground that the judgment dated 6.8.2009 has been rendered without noticing the relevant law as already declared by this Court in the case of R.S. Garg v. State of U.P. and others [2000 (3) AWC 2192] and Phulpati Devi v. Asha Jaiswal [2009 (2) ESC 1091].

The judgment dated 6.8.2009 in this appeal was delivered by a Division Bench comprising of the then Hon'ble the Chief Justice and one of us [A.P.Sahi, J.]. The application was filed and  entertained and since the said Division Bench was no longer available, the matter was heard by a Division Bench presided over by Hon'ble Mr. Justice Ashok Bhushan and one of us [A.P. Sahi,J.] whereafter notices were issued on 18.2.2011.

This  application came up for hearing before the Bench which was again nominated and came to be presided over by one of us [A.P.Sahi, J.] whereupon the following order was passed on 11.3.2014:-

"Heard Sri Indra Raj Singh learned counsel for the applicant and Sri Ranjeet Asthana for the appellant in this appeal.

We had invited the arguments on the review application from the parties keeping in view the Full Bench decision that has been relied upon by the learned counsel for the applicant in the case of Heera Lal Vs. State of U.P. and others reported in 2010 (3) ESC pg. 2091. We had also noticed certain intervening facts and had also expressed a prima facie view as to why the review application deserves to be entertained vide order 17.2.2014.

Today it was pointed out by the Court to Sri Indra Raj Singh about the explanation appended to Rule 2 of Order 47 of the Civil Procedure Code calling upon him to answer the aforesaid proposition to which he responded by citing a decision in the case of B.C.C.I. and another Vs. Netaji Cricket Club and others reported in 2005 (4) SCC pg. 741 (paragraphs 88 to 94) contending that on the facts of this case the judgment being a mistake of court, the review petition is maintainable.

Having perused the aforesaid decision and the ratio thereof, we find that there is no consideration of the explanation to Rule 2 of Order 47 aforesaid and in such circumstances, Sri Indra Raj Singh prays for further time to study the matter and respond to the aforesaid query of the Court.

List in the next cause list."

The matter was heard next on 25.3.2014 on which date, upon hearing the parties and having noticed the judgments that were relied upon by the learned counsel for the appellant, an order was passed which is extracted hereunder:- 

"Heard Sri Indra Raj Singh learned counsel for the applicant.

We had earlier called upon learned counsel to explain the position in the light of the order passed by us on 11.3.2014.

Having heard Sri Indra Raj Singh we find that there is another dimension to the review matter which has been brought on record in the review application itself namely two previous judgments which went unnoticed while deciding the case on 6.8.2009 and have a relevant bearing on law were dated 27.7.2006 and 4.12.2008 namely R.S. Garg Vs. State of U.P. and others 2000(3) AWC 2192 and the other by a Division Bench of this Court in the case of Phulpati Devi Vs. Asha Jaiswal 2009(2) ESC pg. 1011.

These two prior judgments therefore went unnoticed when the judgment was delivered on 6.8.2009 and which declared the law to the effect as urged by Sri Indra Raj Singh that since only two posts are available for promotion the rule of reservation to the extent of 21% for scheduled caste cannot be applied arithmetically.

Thus, this error relating to the incorrect application of law which went unnoticed therefore requires consideration.

Sri Asthana and the learned Standing Cousel are required to assist the Court on this issue.

List in the next cause list."

During the hearing of this review application, a supplementary affidavit was filed on behalf of the applicant-respondent-petitioner bringing on record the fact that out of three posts available in Class - III in the institution, one is occupied by the appellant Mahendra Kumar Gond, whereas two posts are still vacant against which the claim of the applicant-respondent-petitioner Vinod Kumar Singh can be considered in terms of the judgment of the learned Single Judge dated 29.6.2009.

Before we proceed to delve into the issue of the adjustment between the appellant and the respondent-petitioner, it would be appropriate to consider the grounds of review as also the legal position in this regard.

The review has been sought on account of the decisions that have been referred to here-in-above and which went unnoticed in the judgment dated 6.8.2009. It will be appropriate to put on record that the judgment in the case of Phulpati Devi (supra) became subject matter of reference before a Full Bench of this Court in the case of Heera Lal (supra). The decision of the Full Bench of which one of us A.P.Sahi , J. was a Member is reported in 2010 (3) ESC 2091. The issue relating to the availability of the quota of reservation was also considered keeping in view the very judgment, the review whereof is sought in the present case, namely the judgment dated 6.8.2009. The Full Bench noted the ratio of the judgment in the present case, i.e., 6.8.2009 and then proceeded to consider the same qua the judgment in the case of  Dr. Vishwajeet Singh v. State of Uttar Pradesh, 2009 (2) ESC 1387. Thus all the three judgments, namely that of Dr. Vishwajeet Singh, Smt.Phulpati Devi and the case of Mahendra Kumar Gond (the present case) were discussed and the Full Bench gave an answer to the issues raised by one of us, namely, A.P.Sahi, J. in the referring order dated 7.10.2009 reported in 2009 (10) ADJ 564. The conclusions drawn by the Full Bench in paragraph - 34 are extracted hereunder:-

"34. In view of the reasons in support of the conclusions drawn herein above our answer to the questions posed are as follows:

1. Question No.1 is answered in the negative holding that either in cases of promotion or direct recruitment, the rule of reservation providing for 21% reservation to scheduled castes under U.P. Act No.4 of 1994 as applicable to aided educational institutions cannot be pressed into service where the number of posts in the cadre is less than five.

2. The decision in the case of Mahendra Kumar Gond v. State of U.P. 2009 (6) ADJ 674 having been rendered without taking notice of the two Division Bench judgments in the case of Dr. Vishwajeet Singh (supra) and Smt. Pholpati Devi (supra) is not approved. The judgments of Dr. Vishwajeet Singh is hereby approved as laying down the law correctly on the issue raised herein."

It is thus clear that the ratio of the very judgment under review was the subject matter of reference which has been answered in the abovementioned terms. This clearly leads to the conclusion that the decision dated 6.8.2009 was rendered without taking notice of the aforesaid two decisions which had correctly laid down the law.

Sri Ranjeet Asthana, learned counsel for the appellant had been made aware of these proceedings and it is evident from the order dated 11.3.2014 that he had been heard in the matter, but today none has responded on behalf of the appellant.

On perusal of the aforesaid facts and the law referred to here-in-above, the ratio of the judgment under review has already been found to be incorrect by the Full Bench and accordingly, a clear ground for review of the judgment is made out. In the instant case there were only three posts, and that being less than five the ratio of the Full Bench decision squarely applies on the facts of the present case.

Accordingly, the judgment dated 6.8.2009 deserves to be reviewed.

However, the question that now emerges on account of the pendency of this review application is that the respondent-petitioner Vinod Kumar Singh had approached this Court and his writ petition had been allowed on 29.6.2009 as a result whereof the appointment of the appellant-Mahendra Kumar Gond under the reserved category had been set aside, and a direction was issued to make promotions from amongst Class - III eligible employees working in the college. The appellant-Mahendra Kumar Gond had been directly appointed giving the benefit of reservation in the category of Scheduled Caste and it is that appointment which came to be challenged in the writ petition on the ground that the post which was available then, against which the appellant had been appointed, could have been filled-up only by promotion and not otherwise.

In view of the law laid down by the Full Bench in the case of Heera Lal (supra) over-ruling the ratio of the judgment delivered in the present case on 6.8.2009, reservation to the extent of 21% for Scheduled Caste against the post available could not have been applied arithmetically at all and thus, the appellant-Mahendra Kumar Gond could not have been appointed giving the benefit of reservation. His direct appointment therefore was in violation of the law relating to reservation as laid down in the aforesaid decisions which went unnoticed while delivering the judgment dated 6.8.2009. However, the fact remains that as on date, there are two posts still available and are lying vacant in the institution.

In this view of the matter, we are of the considered opinion that at this stage, it will not be appropriate to set aside the appointment of the appellant, but at the same time, since the judgment deserves to be reviewed, we do so by modifying the judgment dated 6.8.2009 to the extent that the law laid down therein vis-a-vis reservation is no longer the correct law in view of the Full Bench decision in the case of Heera Lal (supra). Further, since two vacant posts are available in the institution as on date, the judgment of the learned Single Judge dated 29.6.2009 can be implemented extending the benefit of promotion to the respondent-petitioner Vinod Kumar Singh.

We accordingly recall the judgment dated 6.8.2009 to the extent it sets aside the claim of the respondent-petitioner. The judgment would stand modified with a direction that the appellant's appointment shall not be disturbed, but the claim of the respondent-Vinod Kumar Singh against the two available posts shall be forthwith considered and the District Inspector of Schools, Azamgarh shall proceed to pass appropriate orders vis-a-vis the respondent-petitioner Vinod Kumar Singh in terms of the direction of the learned Single Judge dated 29.6.2009 within eight weeks from the date of production of a certified copy of this order.

The review application stands allowed to the extent above and is disposed off with the said directions accordingly.

Order Date :- 25.5.2016

lakshman

[Pramod Kumar Srivastava, J.] [ Amreshwar Pratap Sahi, J.]