Datadeen vs Lt. Governor Of Delhi & Ors.
2009 Latest Caselaw 1817 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI


         +        Review Pet. Nos. 188/2009, 189/2009 & 190/2009
                             in LPA No. 480/2008

         DATADEEN                                                  ..... Appellant
                                    Through:     Mr. Rajat Aneja, Advocate.

                                    versus

         LT. GOVERNOR OF DELHI & ORS.            ..... Respondents
                       Through:  Ms. Renuka Arora, Adv. for
                                 R-2/Directorate of Education.
                                 Dr. Sarbjit Sharma, Adv. for
                                 R-3/Review Petitioner.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL

                                    ORDER

% 04.05.2009

1. The present review petitions have been filed for review of orders

dated 18.12.2008, 12.01.2009 and 24.02.2009. The appeal was

disposed of on 12.01.2009.

2. Briefly stated the facts of the present case are that the

appellant had filed a writ petition seeking a direction to the

respondents to promote him to the post of Laboratory Assistant with

retrospective effect and to pay him arrears of pay with interest. The

appellant had joined respondent No. 3 school as a Peon on 1st May,

1977. He was confirmed to the post of Peon with retrospective effect

from 1.5.1979. The appellant, at the time he joined as a Peon with

respondent No. 3, was a matriculate. He claimed that he was entitled

to be promoted to the post of Laboratory Assistant with effect from

1.5.1980, in view of the Circular issued by Respondent No. 2

(Directorate of Education) dated 17.12.1979 followed by subsequent

Circular dated 24.5.2007. The writ petition was dismissed by the

learned Single Judge on the ground of delay as also on the ground

that the appellant could not claim promotion to the post of

Laboratory Assistant as a matter of right and at best he could ask for

his consideration for promotion to the said post.

3. In the present appeal, the Directorate of Education produced a

short note in Court on 25.11.2008. The material portion of the note

is reproduced hereinbelow:

"3. That the petitioner was issued certificate in the year 1969 for clearing High School Exam which is equivalent for 10th Class. As per the Recruitment Rules, the Appellant was requisite qualification i.e. Matriculation (10th Pass) with Science with practical and is in regular service of the Respondent No.1 hence, he is eligible for the post of Lab Assistant as per the Recruitment Rules for promotion of Regular Group-D Employees. The respondent may in addition allow the appellant to undergo a three months orientation course in Science as is conducted by the Directorate of Education for such students who completed their education way back in the year 1969 as the pattern of studies was different from what is prevalent as one date."

4. In the light of the clarification given by the Directorate of

Education, the counsel for respondent no. 3 stated that the school

management was prepared to consider the appellant against the

vacant post of a Lab Assistant and pass an appropriate order within a

period of two weeks.

5. Thereafter when the matter came up for hearing on 12.1.2009,

counsel for respondent No. 3 stated that in terms of order dated

24.11.2008, the school administration had considered the case of the

appellant for promotion to the post of Lab Assistant and taken a

decision to promote him with effect from 1.2.2009 subject to the

condition that he will undergo the three months orientation course in

Science conducted by the Directorate of Education. The appeal was

disposed of on the said date.

6. Thereafter an application was filed by the Directorate of

Education for clarification of order dated 12.1.2009 stating, inter alia,

that the appellant was not required to undergo orientation course in

Science for appointment as Laboratory Assistant in view of the

recruitment rules. The said application was listed on 24.2.2009. In

view of the averments made in the application by the Directorate of

Education, Government of NCT of Delhi, this court came to the

conclusion that the appellant was not required to undergo the three

months orientation course in Science. This court was of the view

that admittedly the appellant satisfied the eligibility requirement

stipulated in the recruitment rules and once the eligibility

requirement is satisfied no further direction was required to be

issued. In view of the clear stand taken by the Directorate of

Education and also the fact that the appellant had been working in

the laboratory for the last twenty years, the application was allowed

and it was clarified that the appellant would not be required to

undergo three months orientation course in science conducted by the

Directorate of Education. The application was accordingly disposed

of. Even on 24.02.2009 the only objection taken by respondent No.3

was that the appellant should be asked to undergo an orientation

course even if the training was not mandatory. It was not their case

that the appellant could not be appointed to the post of Lab.

Assistant.

7. The present review applications have been filed asking for

review of the orders dated 18.12.2008, 12.1.2009 and 24.2.2009.

The ground for review now taken is that the counsel who appeared

for respondent no. 3 was never instructed by respondent no. 3 to

make any statement to the effect that the school management was

prepared to consider the appellant against the vacant post of a Lab

Assistant. As per the respondents, even the allotment letter was

issued under the apprehension of initiation of contempt proceeding.

We find no merit in these submissions of the respondent. The review

petition is liable to be rejected.

8. First of all review is only sought of the orders dated

18.12.2008, 12.1.2009 and 24.2.2009. It is pertinent to mention

here that on 25.11.2008, the counsel for respondent no. 3 made a

statement before the court that they were prepared to consider the

appellant against the vacant post of Lab Assistant and pass

appropriate orders within a period of two weeks. On 18.12.2008,

when the counsel for the appellant pointed out that the order had not

been complied by respondent no. 3, this court simply directed the

Chairman of respondent no. 3 to appear in Court and also directed

respondent no. 3 to abide by the statement of its counsel to this

Court on 25.11.2008. Thereafter on 12.1.2009, a categorical

statement was made on behalf of respondent no. 3 that in terms of

order dated 25.11.2008, the respondent no. 3 had taken a decision to

promote the appellant to the post of Lab Assistant. Thereafter even

on 24.2.2009, the only contention urged on behalf of respondent no.

3 was that the appellant should be asked to undergo an orientation

course in science even if the said training was not mandatory. No

review of order dated 25.11.2008 has been sought, though even if it

had been sought, the same would have made no difference to the

outcome of the present review petitions.

9. It is pertinent to mention here that right from 25.11.2008 to

24.2.2009, the matter was listed on six different dates before this

Court. On none of the said dates, was it ever urged that the counsel

for respondent no. 3 had no authority to make the statement on its

behalf on 25.11.2008 or thereafter on subsequent dates. Clearly

this averment in the review petition is an afterthought. The

respondent no. 3 are bound by the statement made by their counsel

and cannot wriggle out of the same.

10. The scope of interference in an application for review is very

limited. There is no glaring omission or patent mistake or like grave

error in any of the orders. There is no error apparent on the face of

the record in the order, review of which is sought. A party cannot be

allowed to resile from the statements made on its behalf by its

counsel in such a casual manner. The story now set up is completely

unbelievable. On repeated dates, the matter was listed and from time

to time statements have been made on behalf of respondent no. 3. It

is impermissible for respondent no. 3 to now turn around and

attempt to resile from the statements so made on its behalf by the

counsel. If such a practice is permitted, it would seriously impede

administration of justice and there would be no sanctity attached to

the statements and submissions made by a counsel on behalf of a

party.

11. It is not the case of respondent no. 3 that the counsel who

appeared on their behalf had no authority to appear on their behalf

or had not been engaged as their counsel. That being the position,

the story, as set out now in the review petition, cannot be accepted.

Review petition has to be entertained only on the ground of error

apparent on the face of the record and not on any other ground. No

such ground for interference has been made out in the present review

petition. The only ground in the present petition is that the counsel

appearing on behalf of respondent no. 3 made a statement on

25.11.2008 without seeking instructions and the said order was

never communicated to respondent no. 3 till 9.1.2009. This cannot

be a ground for review. Moreover, respondent no. 3 is bound by the

statement made by its counsel. As held by the Supreme Court in

BSNL & Ors. vs. Subhash Chandra Kanchan, (2006) 8 SCC 279

that in terms of Order III rule 1 of CPC a litigant is represented by an

Advocate. A concession made by such an advocate is binding on the

party whom he represents. If it is binding on the party, again subject

to just exceptions, they cannot at a later stage resile therefrom. The

matter may, however, be different if a concession is made on a

question of law. A wrong concession on legal question may not be

binding upon his client.

12. However, in the present case, the respondent is seeking to

resile from statements made by their counsel on different dates of

hearing. This does not fall in the category of just exceptions. The

matter was listed on six different dates between 25.11.2008 and

24.2.2009. On none of the dates, was it ever urged that the counsel

for respondent no. 3 had no authority to make the statement on its

behalf on 25.11.2008 or thereafter on subsequent dates. Clearly the

story which is now attempted to be put up in the review petitions is a

clear afterthought and an attempt to resile from the

statement/concession made by the counsel for respondent no. 3 in

the Court. This cannot be permitted.

13. The review petitions must accordingly fail and are liable to be

rejected. Accordingly, the review petitions are dismissed. All pending

applications are also disposed of accordingly.

CHIEF JUSTICE

NEERAJ KISHAN KAUL, J May 04, 2009 Rb/RS