Bombay High Court
Sachin S/O Rameshwarrao Bhople vs Dr. Panjabrao Deshmukh Krishi ... on 9 December, 2021
Bench: V. G. Joshi
Judgment 1 WP2412.20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2412/2020
Sachin S/o Rameshwarrao Bhople,
Aged about 46 years, Occ. Service,
R/o. 05, Aryabhatta Colony, Opposite
Ghate Nursing Home, Near Gourkshan
Trust, Gourkshan Road, Akola 444004 (M.S.)
.... PETITIONER
// VERSUS //
1] Dr. Panjabrao Deshmukh Krishi Vidyapeeth,
PO Krishinagar, Akola,
Through its Registrar
2] Vice Chancellor,,
Dr. Panjabrao Deshmukh Krishi Vidyapeeth,
PO. Krishinagar, Akola 444 104
3] State of Maharashtra,
through its Secretary,
Department of Agricultural, Animal Husbandry,
Dairy Development and Fisheries, Mantralaya,
Mumbai - 400 032, Maharashtra
4] Maharashtra Agricultural Universities Recruitment Board,
Pune, Maharashtra
Council for Agricultural Research, through
its Chairman, 132-B, Bhamburda Bhosale Nagar,
Pune - 7, Maharashtra
5] Dr. Amrapali W/o Atul Akhare,
Aged : 41 years, Occ. Service,
R/o. Ravi Nagar, near Sudhir Colony, Akola
Tq. & Dist. Akola
6] Ms. Vanita Khushatrao Khobarkar,
Aged : 40 years, Occ. Service,
R/o. Gurudwarar Gurunanak Ashram
At post Kondhali, Tq. Katol, District Nagpur
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7] Dr. Shivaji Chaitram Nagpure,
aged : 49 years, Occ. Service,
R/o. Datta Colony, Trimurti Nagar,
behind Gorakshan Sawanthan,
181-7/8, Akola
8] Dr. Manish Ramdas Deshmukh,
aged : 49 years, Occu, Service,
R/o. Shrikrupa Society, Near T.T.N. College,
Keshao Nagar, Akola
9] Dr. Sanjay Uttamrao Kakade,
aged : 47 years, Occu. Service,
R/o. Flat No.B-1, Ma-Vaishnavi Residency - 7,
Ravi Nagar, Akola
10] Dr. Prashant C. Pagar,
Aged : 50 years, Occu : Service,
Office of Associate Dean, College of Agriculture,
Maharajbag, Nagpur, Maharashtra
11] Dr. Sachin N. Potkile,
Aged : 50 years, Occ. Service,
Office of Associate Dean, College of Agriculture,
Maharajbag, Nagpur, Maharashtra
12] Dr. Varsha A. Apotikar,
Aged : 44 years, Occ. Service,
Office of Associate Dean, College of Agriculture,
Krishinagar, Akola, Maharashtra
13] Dr. Vikas V. Goud,
Aged : 45 years, Occ. Service,
Officer Incharge, Agriculture Research Station,
Washim, Dist. Washim, Maharashtra
14] Dr. Vinod A. Khadse,
Aged : 52 years, Occ. Service,
Office of Director of Extension Education,
Dr. Panjabrao Deshmukh Krishi Vidyapeeth,
Krushi Nagar, Akola, Maharashtra
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15] Dr. D. D. Mankar,
Aged : 56 years, Occ. Service,
Office of Associate Dean, College of Agriculture,
Maharajbag, Nagpur, Maharashtra
16] Dr. Pravin V. Mahatale
Aged : 43 years, Occ. Service,
Office of Associate Dean, College of Agriculture,
Sonapur, Dist. Gadchiroli, Maharashtra
17] Dr. U. T. Dangore,
Aged : 48 years, Occ. Service,
Office of Associate Dean, College of Agriculture,
Nagpur, Maharashtra
18] Dr. V. J. Rathod,
Aged : 49 years, Occ. Service,
Office of Associate Dean, College of Agriculture,
Nagpur, Maharashtra
19] Dr. Manish Y. Ladole,
Aged : 45 years, Occ. Service,
College of Agriculture, Akola,
Dr. Panjabrao Deshmukh Krishi Vidyapeeth,
P. O. Krushi Nagar, Akola - 444 104, Maharashtra
20] Dr. Manoj W. Marwar,
Aged : 55 years, Occ. Service,
College of Agriculture, Akola,
Dr. Panjabrao Deshmukh Krishi Vidyapeeth,
P. O. Krushi Nagar, Akola - 444 104, Maharashtra
21] Dr. Praful P. Gawande,
Age : 42 years, Occ. Service,
Central Demonstration Farm,
Wani Rambhapur, Dr. Panjabrao
Deshmukh Krishi Vidyapeeth,
Post Nipana, Tq. Akola,
Dist. - 444 102, Maharashtra
22] Dr. Rajendra D. Ratnaparkhi,
Age : 51 years, Occ. Service,
Department of Agriculture Botany,
Post Graduate Institute, Dr. Panjabrao
Deshmukh Krishi Vidyapeeth,
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Judgment 4 WP2412.20
P. O. Krushi Nagar, Akola - 444 104,
Maharashtra .... RESPONDENT(S)
*********************************************************************
Shri S. Khedkar, Advocate for the petitioner
Shri A. Sambre, Advocate for the respondent no. 1
Shri M.J. Khan, AGP for the respondent/State
Shri R.V. Shiralkar, Advocate for the respondent nos. 10 to 14, 16 to 21
Shri M.M. Sudame, Advocate for the respondent nos. 5,6, 7, 8 & 9
*********************************************************************
CORAM : DIPANKAR DATTA C.J. &
VINAY JOSHI, J.
DATE : DECEMBER 09, 2021
ORAL JUDGMENT : (PER:- DIPANKAR DATTA, C.J.)
1] W.P. No. 2412/2020 has been instituted by Shri Sachin
Rameshwarrao Bhople seeking the following relief: -
"It is, therefore, most humbly and respectfully prayed that this
Hon'ble Court may kindly be pleased to issue an appropriate writ,
order or direction and thereby be pleased to hold and declare that
the judgment & order dated 27/02/2020, passed by this Hon'ble
Court in W.P. No. 2444/19, 2471/2019 & 2806/2019 (Annex-N) is
obtained by misrepresentation by the respondent No. 5 to 9 &
further be pleased to: -
i) quash & set aside/recall the said judgment & order dated
27/02/2020 (Annex-N) passed by this Hon'ble Court in W.P.
No. 2444/19, 2471/2019 & 2806/2019 (Annex-J to L), in the
interest of justice;
ii) issue an appropriate writ, order or direction and thereby be
pleased to quash & set aside the impugned communication
dated 09/07/2020 (Annex-T) issued by the respondent No.
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1/University, cancelling the promotion of the petitioner on
the post of Associate Professor & further be pleased to direct
the respondent No. 1/University & respondent No. 2/Vice-
Chancellor to restore the petitioner on the said post, with
continuity & all benefits, in the interest of justice;
iii) during the pendency and final disposal of the present
petition, stay the effect & operation of the impugned
communication dated 09.07.20 (Annex-T), issued by the
respondent No. 1/University and further restrain the
respondent No. 1/University from proceeding ahead with
the said selection process of promotion of Associate
Professor in the respondent No. 1/University, in the interest
of justice;"
2] Since order has been claimed for a declaration is prayed for
quashing and/or setting aside the judgment and order passed by a co-
ordinate Bench of this Court, on the ground of alleged misrepresentation,
Mr. Sudame, learned advocate representing the respondents 5 to 7 has
raised a preliminary objection to the maintainability of the writ petition.
According to him, the judgment and order dated February 27, 2020 by
which the petitioner feels aggrieved has attained finality by reason of no
appeal being carried therefrom to the Supreme Court as well as no review
application having been filed in line with the principles flowing from
section 114 read with Order XLVII of the Code of Civil Procedure. These
being the remedies made available by law to the petitioner, it is contended
that he ought to have elected one such remedy but writ remedy is not
available to him in the circumstances. He also contends that relief as
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claimed by the petitioner cannot be granted since it is not open to us to
quash and/or set aside the judgment and order of a co-ordinate Bench in
exercise of judicial review powers; if at all the petitioner is aggrieved, his
remedy lies elsewhere. It is, thus, prayed that the writ petition be
dismissed.
3] Mr. Khedkar, learned advocate representing the petitioner
counters such preliminary objection by placing reliance on a decision of
the Supreme Court reported in (2007) 14 SCC 108 : Deepa Gourang
Murdeshwar Katre vs. Principal, V.A.V. College of Arts and others.
According to him, the said decision is an authority for the proposition that
if an order has been passed by a Court of law based on fraud or
misrepresentation, the Court can recall its order in exercise of its inherent
power. It is, therefore, submitted that this Court may examine whether the
contention of the petitioner that the judgment and order dated February
27, 2020 was obtained by misrepresentation has substance or not; if yes,
the Court may proceed to grant such relief as it may consider appropriate
in the circumstances.
4] Before dealing with the preliminary objection, it would be
appropriate for us to notice what was under challenge in W.P. Nos.
2444/2019, 2471/2019 & 2806/2019 and what the judgment and order
dated February 27, 2020 (hereafter "the said judgment", for short),
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Judgment 7 WP2412.20
whereby these writ petitions were disposed of, directed. Incidentally, the
said three writ petitions were instituted by the respondents before us who
are represented by Mr. Sudame.
5] The first of these writ petitions [W.P. No. 2444/2019], at the
instance of Ms. Amrapali W/o Atul Akhare, challenged the promotional
orders of appointments of the respondents 2 to 5 therein on the post of
Associate Professor, Agricultural Botany. The second writ petition [W.P. No.
2471/2019] was instituted by Dr. Manish Ramdas Deshmukh & one other,
wherein the appointments on promotion on the post of Associate
Professor, Agronomy of the respondents 4 to 10 were challenged. In the
third writ petition [W.P. No.2806/2019], wherein Ms. Vanita Khushalrao
Khobarkar was the petitioner, challenge was laid to the appointments on
promotion of the respondents 2 and 3 on the post of Associate Professor,
Agricultural Economics. All the appointments under challenge were made
by Dr. Panjabrao Deshmukh Krishi Vidyapeeth (hereafter "the University",
for short). The said three writ petitions were heard together and the
operative part of the said judgment reads as follows: -
"28. Since it has been found that the manner in which the
concerned respondents have been promoted to the post of
Associate Professor is not in accordance with ]law, we have no
hesitation in setting aside the orders of promotion as issued to the
respondent nos.2 to 5 in Writ Petition No. 2444 of 2019 in the
subject of Agricultural Botany, respondent nos.4 to 10 in Writ
Petition No. 2471 of 2019 in the subject of Agronomy and
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respondent nos.2 and 3 in Writ Petition No.2806 of 2019 in the
subject of Agricultural Economics. The Selection Committee is free
to consider the proposals as received by 06.11.2017 by applying
the criteria that was prevailing on the said date for effecting
promotions to the post of Associate Professor. As regards other
Associate Professors who have been promoted but who have not
been impleaded in these writ petitions, the matter is left to the
wisdom of the University to take appropriate steps in accordance
with law if so advised. It is clarified that we have not examined the
legality of the promotions of such Associate Professors who are not
parties in these writ petitions. It is also declared that Resolution
No.26 of 2019 passed by the Executive Council dated 07.01.2019 to
the extent it has the effect of modifying the criteria prescribed in
the matter of effecting promotions which is in variance with
Statutes 52 and 73 would not operate till the procedure as
contemplated by Section 38 of the said Act is complied with. Rule
in each writ petition is made absolute in aforesaid terms leaving
the parties to bear their own costs."
(emphasis ours)
6] It is not in dispute that in terms of the operative directions as
quoted above, the University (where the petitioners as well as the private
respondents in the aforesaid three writ petitions are employed) initiated
action for fresh selection and appointment. In course of such process being
undertaken by the University, the present petitioner who was appointed
on promotion on the post of Associate Professor in Horticulture was
served with an order dated July 9, 2020, whereby he was reverted to the
post of Assistant Professor in Horticulture. Upon this writ petition being
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moved, a co-ordinate Bench of this Court by its order dated October 5,
2020 stayed the order of reversion with the effect that the petitioner has
continued to function as an Associate Professor in Horticulture. However,
the Court granted liberty to the University to finalize the process of fresh
selection and we are informed that the process has been completed and
the consequent recommendation kept in a sealed cover.
7] The vital circumstance that can never be overlooked and
would always loom large is that the petitioner was not a party to the
proceedings of W.P. Nos. 2444/2019, 2471/2019 & 2806/2019.
8] Bearing in mind the aforesaid facts and circumstances, we are
now tasked to decide the preliminary objection as to whether this writ
petition is maintainable. The question of grant of relief, if any, would arise
only if the preliminary objection is overruled.
9] Mr. Sudame, Mr. Khedkar and Mr. Sambre, learned advocates
for the University, respondent no. 1, have been heard and the materials on
record perused.
10] We are inclined to overrule the objection of Mr. Sudame and
hold the writ petition to be maintainable having regard to the Constitution
Bench decision of the Supreme Court reported in AIR 1963 1909 : Shivdeo
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Singh vs. State of Punjab. There, certain agricultural lands were allotted to
a number of displaced persons including the appellants on a quasi-
permanent basis under the administration of Evacuee Property Act, 1950
and Rules made thereunder in a particular village. It was an admitted fact
that the appellants fell under the category of "non- faujis". On October 9,
1951, the Director of Relief and Rehabilitation, Punjab, made an order
adverse to the interest of the appellants Shivdeo Singh and others. To
maintain the character of the said village as "fauji", he directed that the
appellants have to move out for being accommodated in some other
village. Soon after this order was made, the appellants preferred a writ
petition before the High Court of Punjab for quashing the order. The
Director of Rehabilitation alone was made a party thereto. The petition
was allowed by Hon'ble Khosla, J. (as His Lordship then was). Eventually
the respondents 3 to 14 in the appeal before the Supreme Court, who were
members of "fauji" families and in whose favour either allotment had been
made or was intended to be made, preferred a petition before the High
Court under Article 226 of the Constitution for impleading them as parties
in the appellants' petition and re-hearing the whole matter. The petition
was entertained by the High Court and Hon'ble Khosla, J. allowed it. The
appellants preferred a Letters Patent appeal before the High Court which
having been dismissed, the Supreme Court was approached in appeal by
special leave. Hon'ble J.R. Mudholkar, J. (as His Lordship then was)
speaking for the Bench ruled as follows:
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"8. The other contention of Mr Gopal Singh pertains to the second
order of Khosla, J., which, in effect, reviews his prior order. Learned
counsel contends that Article 226 of the Constitution does not confer
any power on the High Court to review its own order and, therefore,
the second order of Khosla, J., was without jurisdiction. It is sufficient
to say that there is nothing in Article 226 of the Constitution to pre-
clude a High Court from exercising the power of review which inheres
in every Court of plenary jurisdiction to prevent miscarriage of justice
or to correct grave and palpable errors committed by it. Here the pre-
vious order of Khosla, J., affected the interests of persons who were not
made parties to the proceeding before him. It was at their instance
and for giving them a hearing that Khosla, J., entertained the second
petition. In doing so, he merely did what the principles of natural jus-
tice required him to do. It is said that the respondents before us had
no right to apply for review because they were not parties to the pre-
vious proceedings. As we have already pointed out, it is precisely be-
cause they were not made parties to the previous proceedings, though
their interests were sought to be affected by the decision of the High
Court, that the second application was entertained by Khosla, J."
(emphasis ours)
11] The ratio of such decision has been followed in the decision
reported in (2004) 6 SCC 126 : Pohla Singh vs. State of Punjab. The law
declared in such decision is that, if a decision rendered in a writ petition
adversely affects the interest of a third person who was not impleaded as
a party in the writ petition, it is always open to him to ask for recall of the
judgment which has been rendered without affording any opportunity of
hearing to him.
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12] The facts of the present case appear to be unusually similar
to those arising for consideration in Shivdeo Singh (supra) and Pohla Singh
(supra). Admittedly, the petitioner was not included in the array of
respondents in any of the three writ petitions which were allowed by the
said judgment. We have noted from paragraph 15 of the said judgment that
objection had been raised to the effect that all the promotees were not
impleaded as respondents in the writ petitions. The view expressed by the
co-ordinate Bench while dealing with such objection needs to be noted.
Paragraph 15 records as follows:
"15. Another objection raised is the absence of all
promotees being impleaded as respondents in the writ petitions.
According to the promoted respondents, since the entire process of
promotion was being challenged by the petitioners, it was
necessary for them to implead all the Assistant Professors who had
been promoted as Associate Professors. In reply, it has been
submitted by the petitioners that only those Assistant Professors
who were less meritorious than the petitioners but had been
promoted as Associate Professors were impleaded as respondents.
The justification for the same is that if the procedure as prescribed
by the Statutes is adopted, the concerned respondents being less
meritorious than the petitioners, they were not liable to be
promoted. The petitioners therefore have chosen to challenge the
promotions of such promotees who were less meritorious than the
petitioners.
In the light of the specific challenge raised by the
petitioners and as they are aggrieved by the adoption of a different
procedure than the one prescribed by the Statutes which has
resulted in less meritorious candidates being promoted, we are
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inclined to examine the challenge as raised on merits and we do
not find it appropriate to non-suit the petitioners only on the
ground that all promoted Associate Professors have not been
impleaded as respondents. In any event, the petitioners have no
grievance with the promotion of such Associate Professors who are
more meritorious than them and hence in this backdrop, such
more meritorious candidates are not found to be even proper
parties. We are conscious of the position that promotions of such
Assistant Professors who have been promoted but have not been
impleaded cannot be challenged in their absence.
(emphasis ours)
13] Once the co-ordinate Bench in the said judgment has
observed that it was conscious of the legal position that promotions of
such Assistant Professors as Associate Professors who have not been
impleaded as respondents could not be challenged in their absence, our
task becomes easy. We are inclined to the view that the observation in the
operative directions quoted above constitute an error apparent on the face
of the record which, in the exercise of the inherent power of this Court
(being a court of plenary jurisdiction) deserves to be reviewed. The
observation in paragraph 28 is plainly inconsistent with the conclusion
recorded in paragraph 15 and, thus, interests of justice would require that
the two inconsistent views be reconciled, if possible; if not, to review the
said judgment and relieve such of the promotees, who were not parties to
the earlier proceedings, from being visited with adverse civil
consequences not only on the ground of their non-impleadment but
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because of the clear stand of the petitioners in course of hearing of the said
three writ petitions that only selection and appointment of less
meritorious promotee candidates had been challenged consequent
whereto only such promotees were impleaded as respondents. The co-
ordinate Bench having found that the highly meritorious candidates were
not even proper parties, the observation made in paragraph 28 could be
applied only to candidates who were not as meritorious as the petitioners
in W.P. Nos. 2444/2019, 2471/2019 & 2806/2019; but such observation
had no application qua a candidate like the petitioner, who was not only
not a respondent, but is claimed to be a highly meritorious candidate. Also,
the petitioner could not have figured in the scheme of things since none of
the respondents, who instituted the said three writ petitions as
petitioners, were Assistant Professors in Horticulture. Their subjects being
different, the observation in paragraph 28 could not have been made the
sheet anchor to direct reversion and fresh selection, and carried forward
to the detriment and prejudice of the petitioner. The University while
reading paragraph 28 seems to have been clearly oblivious of the
unambiguous conclusion recorded in paragraph 15 by Their Lordships.
14] In such view of the matter, in exercise of our power of review,
we hold that any action taken by the University to divest the petitioner of
the fruits of promotion as an Associate Professor, Horticulture, triggered
by the observation in paragraph 28, must be regarded as inoperative and
ineffective having regard to the observation made in paragraph 15 of the
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said judgment. As a consequence, we hold that the reversion of the
petitioner by the University by the order dated July 9, 2020 not at all being
lawful, in the sense that the University was nudged to act on the basis of
the observation in paragraph 28 of the said judgment by the respondents
represented by Mr. Sudame despite the observation in paragraph 15
thereof, merits to be set aside. We order accordingly.
15] The result of the aforesaid direction would be that the
petitioner shall be deemed to have continued in service on the promoted
post of Associate Professor, Horticulture from the initial date of his
promotion notwithstanding the action taken by the University in terms of
the said judgment. The selection process that the University has initiated,
pursuant to the impugned order of this Court, needs to be aborted and
shall not be carried forward any further. We, therefore, allow the writ
petition with the aforesaid directions. Since the petitioner has not suffered
adversely because of the timely intervention by this Court by its aforesaid
interim order, we refrain from imposing costs.
16] We, however, make it clear that this order does not affect any
action taken by the University against the promotees who were
respondents in the said three writ petitions and which were disposed of
by the said judgment. Any process initiated against any of the respondents
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in such writ petitions may be taken to its logical conclusion, in accordance
with law.
17] Pending application(s), if any, stand(s) disposed of.
(VINAY JOSHI, J.) (CHIEF JUSTICE)
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