Gauhati High Court
Page No.# 1/5 vs Alaka Kalita And Anr on 8 February, 2022
Page No.# 1/5
GAHC010063362019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Review. Pet./7/2022
THE STATE OF ASSAM AND 3 ORS.
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM
EDUCATION ELEMENTARY DEPTT.
DISPUR
GHY-6
2: THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-781019
3: THE DISTRICT ELEMENTARY EDUCATION OFFICER
NALBARI
ASSAM
4: THE DEPUTY INSPECTOR OF SCHOOLS NALBARI
ASSAM
VERSUS
ALAKA KALITA AND ANR.
W/O SHRI APURBA KUMAR TALUKDAR
R/O VILL. and P.O. BANGAON
DIST- BARPETA
ASSAM O/O THE DEPUTY INSPECTOR
2:THE DIRECTOR OF EDUCATION
BODOLAND AUTONOMOUS COUNCIL
KOKRAJHAR
------------
Advocate for : MR. N J KHATANIAR
Advocate for : SC
BTADC appearing for ALAKA KALITA AND ANR.
Page No.# 2/5
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
Date : 08.02.2022.
Heard Shri NJ Khataniar, learned counsel for the review applicants. Also heard Shri BD
Das, learned Senior Counsel for the opposite party (writ petitioner).
2. The present application has been filed for review of the order dated 22.01.2019 passed
by this Court in WP(C)/1728/2015.
3. For better appreciation, it would be convenient if the order sought to be reviewed
dated 22.01.2019 is taken up for consideration along with the background of the writ petition.
4. The opposite party no. 1, who was the writ petitioner, had filed the connected
WP(C)/1728/2015. It was stated that pursuant to a recruitment process in the year 1997, the
writ petitioner was appointed as an Assistant Teacher against a sanctioned vacant post and
posted at the No.143 Baroma Nimna Buniyadi Bidyalaya on 04.12.1999. The aforesaid School
was under the territorial jurisdiction of BTAD. Subsequently, the petitioner was transferred to
another School and thereafter, vide an order dated 30.10.2004, her services were attached to
No. 1131 Jalkhana LP School (General Area) where she had joined on 01.11.2004. The said
School was outside the territorial jurisdiction of BTAD. The grievance of the petitioner was
that though she was discharging her duties, no monthly salaries were paid since the month of
April, 2006. It was the further case of the petitioner that on 17.10.2006, a show cause notice
was issued to her which, after reply by the petitioner, was put on cold storage and the
petitioner was transferred to another School. It appears that a list of 2272 of LP School
Teachers was prepared whose appointment was said to be illegal in which the name of the
petitioner was also figured. However, similarly situated persons were paid the salaries leaving
out the petitioner. The petitioner had approached this Court on earlier occasions where her
grievance was directed to be redressed. However, she had been continuing without any
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salaries. The present writ petition was filed ultimately in the year 2015. The writ petition was
pending for about 4 years and after hearing the parties, including the learned counsel for the
BTC and also the learned Standing Counsel, Elementary Education Department, Government
of Assam, this Court directed that the Director of Elementary Education would verify whether
the services of the petitioner were utilized as an Assistant Teacher of No. 1131 Jalkhana LP
School and, if upon such verification, it was found that the writ petitioner was indeed
discharging her duties, her salaries, both arrear and current be paid. Such exercise was
directed to be completed within a period of 45 days. Since the order was not complied with,
the writ petitioner had filed Cont. Cas(C)/176/2019 on 20.03.2019 in which this Court vide
order dated 05.04.2019 had issued.
5. Shri BD Das, learned Senior Counsel for the writ petitioner has also drawn the
attention of this Court to an order dated 29.11.2021 by which this Court had given a further
extension of one month to comply with the order and in default, there would be personal
appearance.
6. On the next date i.e., 20.01.2022, Shri Khataniar, learned counsel for the applicants
had informed the Court that the present review petition has been filed.
7. Shri Das, learned Senior Counsel submits that the entire conduct of the review
applicants lack bona fide and it is only to circumvent the consequence in the contempt
petition that the review petition has been filed.
8. Shri Khataniar, learned counsel submits that upon scrutiny, it has been found that the
initial appointment of the writ petitioner was not in accordance with law. He further submits
that since the initial appointment is not in accordance with law, the question of payment of
salaries will arise and therefore, the present is a fit case for exercising the review jurisdiction
of this Court.
9. On the other hand, Shri Das, learned Senior Counsel for the writ petitioner submits
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that no grounds for review have been made out and the grounds urged were very much the
pleaded facts in the writ petition which were already dealt with by this Court while disposing
of the writ petition. He further submits that even the present ground cannot be taken up
inasmuch as the authorities have abandoned the proceeding which was initiated vide the
show cause notice after submission of reply by the writ petitioner which would necessarily
mean that there was no irregularity or illegality in the initial appointment of the petitioner. In
any case, the learned Senior Counsel submits that the powers of review are to be exercised
sparingly and no such case has been made for such exercise of powers. The learned Senior
Counsel has placed reliance on the following case laws.
i) Col. Avtar Singh Sekhon Vs. Union of India & Ors., 1980 (Supp) SCC 562;
ii) Parsion Devi & Ors. Vs. Sumitri Devi & Ors., (1997) 8 SCC 715; and
iii) Dolat Industries, Gonal Vs. Krishna Oil Industries, Jamnagar & Anr., 2001
SCC Online Guj 170.
10. The rival submissions of the learned counsel for the parties have been duly considered.
The powers of review are to be exercised with utmost care and caution and only on certain
conditions. Though the Code of Civil Procedure as such may not be applicable in a writ
proceeding, the spirit is certainly applicable and as per the same, the conditions for exercising
powers of review, namely, error apparent on the face of the order, discovery of materials
which were not within the knowledge of the applicant and which would have a material
bearing in the outcome of the case and even the broad expression of any other sufficient
reasons are not discernible in the present case. In fact, this Court has noticed that no
grounds at all have been pleaded for review as the only ground pleaded regarding the initial
appointment was the ground taken up in the hearing of the writ petition.
11. As contended by Shri Das, learned Senior Counsel for the opposite party that the said
ground, perhaps would not be available as the process initiated by issuing the show cause
notice was abandoned by the authorities on their own volition after submission of the reply to
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the show cause notice by the petitioner. It is a settled position of law that a mere error of
judgment cannot be a ground of review and the error has to be a palpable one which is
apparent on the face of the records. No new facts was discovered after passing of the
judgment and above all the delay in filing the review and that too, after filing of the contempt
petition by the writ petitioner in which personal appearance was also contemplated, raises
serious doubt regarding the bona fide of the present application.
12. In view of the aforesaid facts and circumstances, this Court is of the view that no
ground for review has been made out and the same is accordingly dismissed. Since the bona
fide of the review applicants is itself questionable, this Court proposes to impose a cost of
Rs.50,000/- (Fifty thousand) only upon the applicants which is to be deposited before the
Gauhati High Court Legal Services Authority within a period of 60 days from today.
JUDGE
Comparing Assistant
