Dushyant Swaroop & Ors. vs Govt. Of Nct & Ors.
1999 Latest Caselaw 719 Del

ORDER

Mukul Mudgal, J.

1. This is a review petition, on behalf of the original petitioner No. 3, Shri Mashroor Alam Khan & petitioner No. 5 Shri Anoop Kumar Gupta, under section 151 of the CPC, which is titled as an application for recall of the Order dated 9th June, 1999. The main averment in the review petition is that this writ petition(CW. 3322/98), was withdrawn on 26th March, 1999 on an undertaking by the learned counsel for the respondents to publish the results within a fortnight and to make appointments to the posts of Assistant Public Prosecutors.

2. The Order dated 26th March, 1999 is as follows:

"CW 3322/98 and CM 444/99

Learned counsel for the respondents states that the main relief, petitioners are seeking in the present writ petition is for the publication of results of the interviews for the posts of Assistant Public Prosecutors held in May, 1998 in pursuance of the notification dated 4.3.1998 and the further direction that the respondents to fill up the posts or Assistant Public Prosecutors. Learned counsel for the respondents states that results will be published within a fortnight from today and appointments pursuant to the results will also be made within a shortwhile thereafter in accordance with law.

Mr. R.K. Anand, learned Senior Counsel alongwith Ms. Kanchan Singh for the petitioners accordingly prays leave to withdraw the writ petition with liberty to challenge the list to be published by the respondents in case the need arises before an appropriate forum in accordance with law.

Accordingly, the writ petition is allowed to be withdrawn with liberty aforesaid."

3. However, a CM. 5698/98 was filed on 9.4.1999 on behalf of the respondents in this Court and it was prayed that the Order dated 26th March, 1999 be recalled because the said order had become unsustainable in view of the fact that the Government had resolved that since a Final List for the appointment to the posts of Assistant Public Prosecutors was very soon likely to be received from the UPSC, it had been decided not to make ad hoc/temporary appointments of the Assistant Public Prosecutors for the brief interregnum.

4. The said CM. 5698/98 was heard and the eventual orders in the writ petition and the said C.M. were passed after hearing both sides. The operative directions by the judgment dated 9th June, 1999 read as follows:

"Since the arguments were heard at the end of May in this matter and the Government has stated on additional affidavit that the appointments are going to be made by the first week of August in accordance with the Union Public Service Commission's recommendations, no worthwhile purpose would be served by appointing these petitioners, at this stage, who have been successful in the interviews conducted by the respondents. However, in the interest of justice and keeping in view the requirements of Article 21 of the Constitution relating to the constitutional guarantee for speedy trial and the necessary and urgent requirement of Public Prosecutors, it is directed that if appointments to the post of Asst. Public Prosecutors are not made by the Government by 10th August 1999 in accordance with the UPSC selection then the petitioners who have been successful in the interview of the ad hoc/temporary Asst. Public Prosecutor would be entitled to be appointed as ad hoc/temporary Asst. Public Prosecutors.

Consequently, if the Government does not make appointments in the light of the recommendations made by the Union Public Service Commission by 10th August, 1999, then those among the petitioners who have succeeded in the interviews and figure on the select list would be entitled to be appointed within 2 weeks of 10th August 1999. It is made clear that these appointments are purely ad hoc/temporary in nature and are subject to the vigilance clearance and verification. Upon the regular appointments being made in accordance with the recommendations of the UPSE, the ad hoc/temporary appointments shall come to an end forthwith and such ad hoc/temporary candidates shall have no claim for continuance once the regularly selected candidates are available and appointed. These appointments of ad hoc/temporary of Asst. Public Prosecutors, if made, will be in accordance with the merit reflected in the light of the results of the interviews conducted."

5. It is this Order dated 9th June, 1999, which is sought to be challenged in the present review petition which is titled as an application for recall of the said order.

6. The main grievance of the review petitioners is that after the Order of the final disposal of the Writ Petition No. 3322/98 on 26th March, 1999, this Court had no jurisdiction to pass the order dated 9th June, 1999 and that order has been passed in breach of principles of natural justice as the same has been passed without any notice to the petitioners who had been granted permission alongwith other petitioners to withdraw their petition and were granted a right to move an appropriate Forum and an appropriate Forum had already been moved and the Order dated 8th June, 1999 had been passed by such appropriate forum i.e. the Central Administrative Tribunal by which the final results of the selection for the appointments to the posts of APPs (Assistant Public Prosecutors) in the Directorate of Prosecution in the Government of National Capital Territory of Delhi had been directed to kept in abeyance.

7. The review petitioners have submitted that after the disposal of the said writ petition, the petitioners had not authorised anybody and not appointed any counsel on their behalf in the writ petition as they had moved the Central Administrative Tribunal. Therefore the review petitioners have sought to disown the representation of their counsel who continued to appear in this Court in the hearing subsequent to 26th March, 1999. Significantly, the two review petitioners before this Court were petitioner No. 3 & petitioner No. 5 in CW. 3322/98 and their case was always represented by Arun Birbal/Kanchan Singh, Advocates. Pursuant to the hearing on 26th March, 1999, the application No. 5698/99 was filed before this Court on 12th April, 1999 and a copy thereof was sent to the present counsel Shri H.B. Mishra, (who now represents the review petitioners) as per the postal receipt annexed to the application. The reply to the said application was filed on behalf of all the petitioners on 28.4.1999. The matter came up on 26th April, 1999 when the same counsel who was appearing earlier, i.e., Shri Arun Birbal appeared for all the petitioners. This was also listed on 29.4.99, 4.5.99, 11.5.99, 18.5.99, 21.5.99, 26.5.99, 27.5.99, 28.5.99 when the same counsel appeared for the petitioners & was finally heard on 2nd June 1999 when arguments were heard and orders reserved. The last hearing was on 2nd June, 1999 in the vacations on account of the urgency in the matter. Significantly these counsel Ms. Singh & Shri Birbal had appeared on behalf of the petitioners on 26.3.1999 and all proceedings prior thereto.

8. The same counsel who was appearing earlier continued to represent all the 8 petitioners in this Court and the eventual orders were passed on 9th June, 1999 after the reservation of the judgment on 2nd June, 1999. The sum and substance of the case of the review petitioners is their avowed disowning of the representation by their counsel before this Court subsequent to 26th March, 1999. It is significant that there were 8 petitioners to begin with all of whom were seeking appointment to the posts of Asst. Public Prosecutors. The vakalatnama in favour of Shri Arun Birbal/Kanchan Singh was filed by both the petitioners on 16th July, 1998. The matter was heard on several dates even after 26th March, 1999 and the same counsel continued to appear on behalf of all the petitioners. None of the points relating to the lack of jurisdiction of this Court were urged before this Court on the several hearings after 26th March, 1999 leading to the judgment dated 9th June, 1999 and at this stage the review petitioners cannot be permitted to raise this new plea. Furthermore the review petitioners' case was represented before this Court on several dates as detailed above after 26th March, 1999 and the stand of the review petitioners that the earlier Order dated 26th March, 1999 could not have been recalled as the Court had become function officio cannot be sustained because and order passed is always subject to review and was done in case of Order dated 26th March, 1999 by judgment dated 9th June, 1999. Both the parties were heard at length and the two review petitioners' plea that they were unaware of the proceedings in this Court and the representation on their behalf was without authority cannot be accepted particularly when the two petitioners were represented by their advocates Arun Birbal/Kanchan Singh throughout. In addition a copy of the C.M. No. 5698/99 was also sent to the advocate of the applicants H.B. Mishra who is appearing now in the review petition as per the postal receipt dated 12th April, 1999. Significantly on 16th March, 1999 Shri H.B. Mishra, Advocate had entered appearance in the writ petition for the petitioners 1,7 & 8 and that is why a copy of the petition on 12th April was sent to him. Now Mr. H.B. Mishra appears for the original petitioners 3 & 5 who are the review petitioners.

9. It is significant to note that there were 8 petitioners before this Court represented through common counsel and since all the petitioners are lawyers practicing in the Delhi Courts the review petitioners' stand reiterated in subsequent affidavits dated 3rd August, 1999 to the effect that they were unaware of the proceedings further to 26th March, 1999 in this Court cannot be countenanced. Thus the review petitioners cannot disown their representation before this Court subsequent to 26th March, 1999 and thus there is no merit in this review petition which is accordingly dismissed.

10. The review petitioners have further sought action against Shri S.C. Patney, Deputy Secretary (Home), Government of National Capital Territory of Delhi, for making allegedly false statements before Central Administrative Tribunal in contradiction to those made in CM.5698/99 before this Court. After having gone through the two statements said to be false, I am satisfied that this is not a case for contempt at all. Accordingly, this plea is also rejected.