District Inspector Of Schools ... vs Buddhiswar Pramanik & Ors
2022 Latest Caselaw 7445 Cal

                      In the High Court at Calcutta
                      Civil Appellate Jurisdiction
                            Appellate Side

Before:
The Hon'ble Justice Subrata Talukdar
           and
The Hon'ble Justice Lapita Banerji

                            MAT 327 of 2022
                                  With
                          IA No. CAN 1 of 2022

             District Inspector of Schools (SE) Nadia
                               Vs.
                  Buddhiswar Pramanik & Ors.

                                 With
                            MAT 475 of 2022
                                 With
                         IA No. CAN 1 of 2022

              District Inspector of Schools (SE) Nadia
                                 Vs.
                         Bharat Ghosh & Ors.


  For the Appellant in          : Mr. Tapan Mukherjee, Adv.
  MAT 327 of 2022 &               Mr. Rezaul Hossain, Adv.
  MAT 475 of 2022

  For the Respondents/           : Mr. Subir Sanyal, Adv.

  writ petitioners in both         Mr. Arunava Banerjee, Adv.
  the appeals                      Ms. Mamata Dutta, Adv.

  For the Respondent No. 8       : Mr. Piush Chaturvedi, Adv.
  in MAT 475 of 2022               Mr. Subrata Mukherjee, Adv.

  For the Respondent Nos. 9 &    : Mr. Supriyo Chattopadhyay, Adv.
  10 MAT 327 of 2022               Mr. Samaresh Chandra Dhara, Adv.


  Hearing concluded on           : 02.08.2022.




     Judgment on                      : 10.11.2022.

Lapita Banerji, J.:- This intra court appeal was filed under Clause 15 of

the Letters Patent, 1865 challenging an Order dated November 16, 2021,

passed by an Hon'ble Single Judge of this Court in CPAN No. 2053 of 2013

arising out of an Order dated December 24, 2010 in WPA No. 25988 of 2010.

2. By the 'Impugned Order' dated November 16, 2021, the Hon'ble Single

Judge refused to recall the Order dated December 24, 2010 for the reasons

stated therein. The application for recalling being CAN 1 of 2015 was itself

filed 5 years after the date of passing of the Order in 2010. The Hon'ble Single

Judge disposed of the contempt application being CPAN No. 2053 of 2013 by

directing the District Inspector (DI) of Schools (SE), Nadia/appellant to comply

with the directions within 4 weeks from the date of the 'Impugned Order'.

3. The issue in the writ petitions was regarding the failure on the part of

the DI to approve of the appointment of the writ petitioners/non-teaching

staff, who worked at the school in issue for long despite the Order dated

December 24, 2010. Subsequently, the DI in terms of his communication

dated January 28, 2018 approved of the petitioners' appointment but even

then failed to comply with its own Notification.

4. The present appeal being MAT 475 of 2022 was filed only challenging

the Impugned Order dated November 16, 2021 passed in CPAN No. 2053 of

2013 and not against the Order dated December 24, 2010 passed in WPA No.

25988 of 2010.

5. A point of maintainability has been strongly urged by the writ

petitioners/respondents as well as the respondent No.8, being the Secretary of

the Managing Committee of the school in issue since the parent order dated

December 24, 2010 has not been challenged in the appeal. Hence the issue o

maintainability is adjudicated as a preliminary issue by this Court.

6. Mr. Tapan Mukherjee, Learned Counsel, appearing for the appellants

argued that the Parent Order dated December 24, 2010 relied on the

Judgment passed by the Supreme Court (U.P. Electricity Board Vs. Pooran

Chandra Pandey & Ors.) reported in (2007) 11 SCC 92 is no longer good law

and the same has been reiterated in a 3-Bench Judgment of Supreme Court

in Official Liquidator Vs. Dayanand & Ors. reported in (2008) SCC 1 at

paragraph 92. Therefore, the failure to challenge the same in the present

appeal is of no consequence to the maintainability of the appeal. In

Dayanand (Supra) at paragraph 92, it has been unequivocally held that the

comments and observations made by the 2-Judge Bench in Pooran Chandra

Pandey (Supra) should be read as obiter and the same should neither be

treated as binding by the High Courts, Tribunals and other Judicial fora nor

they should be relied upon or made the basis for bypassing the principles laid

down by the Constitution Bench.

7. Furthermore, the Constitution Bench Judgment of State of Karnataka

Vs. Uma Devi (3) reported in 2006 (4) SCC 1 was not considered in Pooran

Chandra Pandey (Supra).

8. On merits he also submitted that since the contempt application was

filed on November 27, 2013, almost 3 years after passing of the Order dated

December 24, 2010, the same was beyond the period of limitation as

prescribed under Section 20 of the Contempt of Courts Act and, therefore,

should have been dismissed in limine.

9. On the ground of maintainability, he argued that the decision reported

in 1996 (1) CHN 411, Robin Paul & Ors. Vs. Kumkum Mittal & Ors. at

paragraphs 30 to 37 cannot be relied upon to argue the maintainability of the

present appeal. It has been strenuously argued that in the case of Robin Paul

(Supra) an appeal was filed under Order 41, Rule 1 of the Code of Civil

Procedure in a Civil Suit and was not a Judgment/Order passed under Article

226 of the Constitution of India. The question that fell for consideration in

Robin Paul (Supra) was that whether an Order passed in review under Order

47, Rule 1 of the Code of Civil Procedure was appealable under Order 43, Rule

1 of the CPC. In such a case it was held that the same was not maintainable.

10. He relied on the full Bench Judgment of this Hon'ble Court (Ratanlal

Nahata & Ors. Vs. Nandita Bose & Ors.) reported in AIR 1999 Cal 29 at

paragraphs 58, 74, 75, 76, 77, 78, 84(1) and (2), 90, 91, 93, 151(1) for the

proposition that the provisions of Order 47, Rule 1, CPC was not applicable to

writ proceedings. Therefore, in the present Letters Patent appeal even if the

Parent Order was not challenged, there was no legal impediment to only

challenge the Impugned Order dated November 16, 2021.

11. The Judgments of Ratanlal Nahata (Supra) and of Shirdhi Singh Vs.

State of Punjab reported in AIR 1963 SC 1039 were relied on for the

proposition that the High Court had inherent jurisdiction to review or recall its

own Order under Article 226 of the Constitution of India for preventing

injustice. Therefore, an appeal was maintainable under Clause 15 of the

Letters Patent from the Order dismissing the of Recalling/Review application.

The same view was reiterated in M.M. Thomas Vs. State of Kerala And Anr

reported in (2000) 1 SCC 666. It was argued that the High Court as a court of

record as envisaged under Article 215 of the Constitution of India has

inherent powers to correct its own records. It is the duty of the High Court to

keep all its records correctly and in accordance with law. Hence, if any error

is apparent on the face of the records, the High Court not only has the power

but also a duty to correct it being a court of plenary jurisdiction.

12. Mr. Mukherjee, distinguished the case of T.K. David vs. K.S.

Cooperative Bank Limited & Ors reported in (2020) 9 SCC 92 on the ground

that the original Order was challenged before the Supreme Court and the

Special Leave Petition was rejected. After that, a review from the S.L.P. was

filed which was refused to be entertained under Article 136 of the Constitution

of India. The said case was not an appeal under Clause 15 of the Letters

Patent and, therefore, not applicable to the instant appeal. It was submitted

that Article 136 of the Constitution of India and Clause 15 of the Letters

Patent are different provisions. Letters Patent is the procedural law, whereas,

Article 136 was a special power given to the Supreme Court of India and not

applicable to High Courts. Therefore, T.K. David (Supra) has no applicability

to the instant appeal.

13. A distinction to the present case has been sought to be drawn with the

ratio of the judgment of T.K. David (supra). It was submitted that the said

judgment was not applicable to the present case where an appeal from an

order dismissing a review was sought to be challenged by way of an SLP under

Article 136 was held to be not maintainable. No distinction was drawn

between inherent powers of the High Court to review the proceedings under

order 47 of the Code of Civil Procedure applicable in case of civil suits.

14. Furthermore, it is submitted that there was no period of limitation for

filing a review application relying on Lieutenant Government vs. Kulsum

Bibi reported in 2000 (ILR) 28. He also relied on the Judgment of the Division

Bench of this Hon'ble Court in Md. Ainul Haque & Ors. Vs. State of West

Bengal & Ors. passed in CRC 13 of 2015 in CPAN 1351 of 2012 in FMA 262

of 2005 for the proposition that the Court cannot insist on compliance of a

thing this is not permissible in law. Therefore, the Hon'ble Single Judge by the

Impugned Order dated November 16, 2021 ought not to have insisted on

compliance of the Order dated December 24, 2010 as the law was well settled

on that score.

15. Mr. Chaturbedi, Learned Counsel appearing on behalf of the respondent

no. 8 submitted that the appeal is not maintainable because it is not a

Judgment as envisaged under Clause 15 of Letters Patent. He relies on the

decision in Robin Paul (Supra) for the proposition that there can be no appeal

from an order declining to review or recall an order. He rebutted the

appellant's argument on the ground that there is no merger in the case where

an application for review or recalling has been rejected by the Hon'ble Court.

By the said rejection, the Parent Order is permitted to continue to hold the

field on the issues that have been adjudicated by the Parent Order. The order

impugned has not decided anything further. By the Impugned Order dated

November 16, 2021, the recalling application was simply dismissed and time

was extended for compliance of the Judgment passed on December 24, 2010.

No appeal has been preferred against the Parent Order.

16. Mr. Chaturbedi, placed reliance on DSR Steel (Private) Limited Vs.

State of Rajasthan and Ors (2012) 6 SCC 782, for the proposition that

where an application for review was dismissed affirming the decree or order,

there was no question of any merger and anyone aggrieved by decree or order

of the tribunal or court 'shall have to challenge within the time stipulated by

law, the original decree and not the order dismissing the review petition'.

17. He also relies on Municipal Corporation of Delhi vs. Yashwant Singh

Negi reported in (2020) 9 SCC 815, for the same proposition following DSR

Steel (Supra).

18. Furthermore, he argued that the Parent Order instead of being

challenged was complied with by granting approval to the appointment of the

writ petitioner on November 8, 2021 much before the filing of the instant

appeal in or around April, 2022. The appellants should not be allowed to

approbate and reprobate at the same time.

19. On facts he submitted that the recalling application was filed by one

Mitali Dutta, who was the D.I of Schools on August 26, 2015. The approval of

the writ petitioner's appointment was granted by the same person on January

21, 2018 after necessary compliances regarding ascertainment of vacancy

status from the schools. The present appellant/D.I is now seeking to disregard

the appointment given by the previous D.I on inconsistent grounds. On one

hand, it has been alleged that the approval for appointment was not a genuine

document and on the other hand it has been alleged that it has been issued

on personal interest. Such inconsistent stand taken by the appellant is not

tenable in law.

20. Mr. Sanyal learned Counsel, appearing on behalf of the private

respondents/ writ petitioners submitted that the impugned order dated

November 16, 2021 was simpliciter an order of dismissal of the recalling

application. No substantial rights of the parties have been decided by the said

order. Therefore, the same is not a judgment within the meaning of Clause 15

of Letters Patent.

21. He also relied on the Judgment of Robin Paul (Supra), for the

contention that an appeal is not maintainable from an order refusing to review

or recall the Parent Order.

22. Having considered the rival submissions of the parties and the materials

placed on record, this court is of the view that without challenging the Parent

Order dated December 24, 2010, the appellant could not have only challenged

the impugned order dated November 16, 2021, as by the impugned order the

Hon'ble Single Judge refused to recall and or modify the order dated

December 24, 2010. This court cannot agree with the submission of Mr.

Mukherjee, in relation to Robin Paul (Supra). Even if the Code of Civil

Procedure is not applicable to the writ proceedings but the rules of procedure

are applicable mutatis mutandis to the writ proceedings. Hence, even in writ

proceedings the Parent Order cannot be held to merge with the order

dismissing the review/recalling application. Therefore, without challenging the

Parent Order the present appeal is not maintainable.

23. This court agrees with the view taken in Kulsum Bibi (Supra) for the

proposition that there is no period of limitation applicable for the purpose of

filing a review petition. Furthermore, the decision of a Co-ordinate Bench of

this Hon'ble High Court in Md. Ainul Haque (Supra) that the court cannot

insist on compliance of a thing that is not permissible in law is also not in

dispute. A proper application within the legal parameters has to be made for

the court to correct the legal records.

24. This court relies on the Judgment of the Apex Court in Yashwant Singh

Negi (Supra) which has relied on the judgment of DSR Steel (Supra).

25. Paragraph 25.3 of DSR Steel (Supra) is set out herein after:

"25.3. The third situation with which we are concerned in the instant case is

where the revision petition is filed before the Tribunal but the Tribunal refuses to

interfere with the decree or order earlier made. It simply dismisses the review

petition. The decree in such a case suffers neither any reversal nor an alteration

or modification. It is an order by which the review petition is dismissed thereby

affirming the decree or order. In such a contingency there is no question of any

merger and anyone aggrieved by the decree or order of the Tribunal or court

shall have to challenge within the time stipulated by law, the original decree

and not the order dismissing the review petition. Time taken by a party in

diligently pursing the remedy by way of review may in appropriate cases be

excluded from consideration while condoning the delay in the filing of the

appeal, but such exclusion or condonation would not imply that there is a

merger of the original decree and the order dismissing the review petition."

The proposition of law is settled by judgments of the Apex Court.

26. This court agrees with the proposition of law as stated in N.M Thomas

(Supra) and in T.K. David (Supra). On the issue that an order passed by writ

court can be reviewed and/ or recalled by the High Court since it was the duty

of the High Court to correct any error that is apparent on the face of the

record being a court of plenary jurisdiction. In T.K. David (supra), the Special

Leave Petition was preferred from an original Order passed in a writ petition

and was rejected on August 21, 2015. An application for review was filed on

February 6, 2020 and was rejected. An SLP was filed under Article 136 and

the same was found to be not maintainable. The distinction sought to be

drawn between an appeal under Clause 15 Letters Patent and an application

under Article 136 of the constitution is extremely strenuous and cannot be

accepted.

27. The parent order may or may not have become infructuous due to the

subsequent developments in law but it has to be challenged on merit for

setting aside and/or variation of the same.

28. The appellant without preferring an appeal from the order dated

December 24, 2010 cannot in the present appeal being MAT No. 475 of 2022

pray for setting aside of the order dated December 24, 2010.

29. Without going into the merits of the appeal and the legality of the Parent

Order passed on December 24, 2010, this court is of the view that the instant

appeal being MAT No. 475 of 2022 is not maintainable.

30. MAT 475 of 2022 along with the application for stay being CAN 1 of

2022 are accordingly dismissed.

31. Issues raised in MAT 327 of 2022 are identical.

32. Accordingly, MAT 327 of 2022 along with I.A CAN No. 1 of 2022 are

dismissed.

33. All parties to act on server copy of this Order as downloaded from the

official website of this Hon'ble Court.

34. Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

I agree.

      (Subrata Talukdar, J.)                         (Lapita Banerji, J.)


Later:-

Stay of the operation of the Order is prayed for by Learned

Counsel for the contemnor.

Prayer for stay is considered and refused.

I agree.

(Subrata Talukdar, J.)        (Lapita Banerji, J.)