Page No.# 1/ vs Rabbul Hudda And 28 Ors
2022 Latest Caselaw 1584 Gua

                                                              Page No.# 1/10

GAHC010029482018




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : Review.Pet./182/2017



         THE STATE OF ASSAM and ANR
         REPRESENTED BY THE COMMISSIONER and SECY. TO THE GOVT. OF
         ASSAM
         EDUCATION ELEMENTARY DEPTT.
         DISPUR
         GUWAHATI 781006

         2: THE DIRECTOR OF ELEMENTARY EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI-19

          VERSUS

         RABBUL HUDDA and 28 ORS
         S/O MD. AMSAR ALI
         VILL. SAGUNBARI
         P.S. MOIRABARI
         DIST. MORIGAON
         ASSAM.

         2:GIASUDDIN AHMED

         S/O AZIMUDDIN
         VILL. SHAPKATI
         P.S. LAHORIGHAT
         DIST. MORIGAON
         ASSAM.
         3:FARIDA AHMED
         DO ABDUL JALIL
         VILL. BOWALGURI
         P.S.LAHARIGHAT
         DIST. MORIGAON
                              Page No.# 2/10

ASSAM.
4:ABDUL SADIK CHOUDHURY
S/O HUSSAIN ALI
VILL. SHAPKATI
P.S. LHARIGHAT
DIST. MORIGAON
ASSAM.
5:MD. REAZUDIN

S/O BASIRUDDIN
VILL. UDAKATI
P.O. DEWAGURI
P.S.LAHORIGHAT
DIST. MORIGAON
ASSAM.
6:MAINUL HAQUE
S/O MD. JUNAB ALI
VILL. SHAPKATI
DIST. MORIGAON
ASSAM.
7:FIRDHOUS AHMED

S/O ABDUL LATIF
 VILL. HATIMURIA
 P.S. MOIRABARI
 DIST. MORIGAON
A SSAM.
 8:KHAJALUDDIFN AHMED
S/O HUSSAIN ALI
 VILL.LENGRIBORI
 P.S. MOIRABARI
 DIST. MORIGAON
ASSAM.
 9:MAHARUDDIN AHMED
S/O MD. HUSSAIN ALI
 VILL. SANIMARI
 P.S. LAHARIGHAT
 DIST. MORIGAON
ASSAM.
 10:MAINUL HAQUE CHOUDHURY
S/O MD. ELIUS UDIN
 VILL. BOWALGURI
P.O. GOROIMARI
 P.S.LAHARIGHAT
 DIST. MORIGAON
ASSAM.
 11:BIKASH BARUAH
                             Page No.# 3/10

S/O DHANI RAM BARUAH
VILL. KUZISATRA
P.O. SILPUKHURI
P.S. KIKIRBHETA
DIST. MORIGAON
ASSAM.
12:BORNALI BARUAH

W/O RUDRA KT. BORA
LAHORIGHAT
DOLOICHUBA
P.S. MOIRABARI
DIST. MORIGAON
ASSAM.
13:SAYEDA MUSSNEARA JAHAN
D/O HABIBUR RAHMAN
VILL. HATIMURIA
P.O.
P.S. MOIRABARI
DIST. MORIGAON
ASSAM.
14:WAHIDA AKTARA KHANAM

W/O LUTFUR RAHMAN KHAN
VILL. and P.O. GOROIMARI
P.S.LAHARIGHAT
DIST. MORIGAON
ASSAM.
15:SYEDA AKTARA

W/O SAMSUL HAQUE
VILL. BELOBORI
DIST. MORIGAON
ASSAM.
16:ABDUL AZIZ MULLAH
S/O PAMESWAR KAKATI
VILL.MORIGAON
WARD NO. 4
P.S. DIST. MORIGAON
ASSAM
17:SANTANA KAKATI
D/O PAMESWAR KAKATI
VILL - MORIGAON
WARD NO.-4
P.S. AND DIST.- MORIGAON
ASSAM
18:SAFIQUL ISLAM
                              Page No.# 4/10

S/O LT. RAJAB ALI
VILL. SHAPKATI
P.S.LAHORIGHAT
DIST. MORIGAON
ASSAM.
19:PRATIVA DEURI
W/O SUNTI DEKA
WARD NO. 4
P.O.
P.S. and DIST. MORIGAON
ASSAM.
20:KHALED AHMED

S/O SAMSUL HAQUE
VILL. AUTOLA BORI
P.S.LAHORIGHAT
DIST. MORIGAON
ASSAM.
21:RAJENDRA KR. DEKA
S/O LT. DHANURAM DEKA
VILL. MOHMORA
P.S. LAHORIGHAT
DIST. MORIGAON
ASSAM.
22:GOVINDA DEKA RAJA
S/O GOHIRAM DEKARAJA
VILL. BORONGONI
P.S. LAHORIGHAT
DIST. MORIGAON
ASSAM.
23:HARUN ALL RASHID AKANDA
S/O SIRAZUDDIN
VILL. PANBARI
P.O. BECHAMARI
DIST. MORIGAON
A SSAM.
24:DIPTI KEOT
W/O BINOD BORA
VILL.JAGI BHAKAT GAON
P.S.LAHORIGHAT
DIST. MORIGAON
ASSAM.
25:SAMIRAN SAIKIA

D/O DURGESWAR SAIKIA
VILL. DHARANGIAL GAON
P.S. RAHA
DIST. MORIGAON
                                                                          Page No.# 5/10

            ASSAM.
            26:PRATIVA DAS

            W/O DIPAK BODOLOI
            VILL. and P.O. MORIGAON
            P.S. MORIGAON
            DIST. MORIGAON
            ASSAM.
            27:MANNA DEKA

            W/O TARUN DEKA
            VILL. SAPMARI
            P.S. and DIST. MORIGAON
            ASSAM.
            28:JUSHNARA KHATUN
            W/O JAMALUDDIN
            P.O. DEWAGURI
            LAHORIGHAT
            DIST. MORIGAON
            ASSAM.
            29:ABDUL AHMED

            S/O MOFOZUDDIN AHMED
            LAHARIGHAT
            DIST. MORIGAON
            ASSAM. C/O DIST. ELEMENTARY EDUCATION OFFICER DEEO MORIGAON
            ASSAM
            PIN 782105
            ------------
            Advocate for : MR.N SARMA
            Advocate for : MR. M DUTTA (R1 TO 29) appearing for RABBUL HUDDA and 28
            ORS



                                     BEFORE
                      HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                       ORDER

Date : 12.05.2022

Heard Mr. NJ Khataniar, the learned counsel for the review petitioners and Mr. MK Choudhury, learned senior counsel assisted by Mr. P Bhardwaj, learned counsel for the respondents.

Page No.# 6/10

2. The instant review petition has been filed seeking review of the judgment and order dated 03.03.2017 passed in WP(C) No.268/2013 whereby a direction was issued to the respondent authorities to take steps for payment of the arrear salary to the petitioners in the writ petition in terms with the judgment passed in Harendra Ch Nath & Others -vs-State of Tripura & Others reported in 2013 (2) GLT 1094 and having regard to the date on which WP(C) No.2500/2011 was instituted. It was further directed that the steps for payment of arrear salary be completed within a period of 4 (four) months from today. It was also directed that the respondents shall make payment of the current salary to the petitioners therein without any interruption.

3. The instant review application has been filed primarily on the ground that an enquiry report dated 30.12.2012 was forwarded to the Standing Counsel vide a communication dated 04.07.2013 but in the affidavit-in-opposition so filed, the enquiry report dated 30.12.2012 was not included. Another ground was also taken that in the judgment sought to be reviewed, an error had crept in, inasmuch as the petitioners in the writ petition were appointed after provincialisation of the School.

4. I have heard the learned counsel for the review petitioners as well as the respondents.

5. Let this Court first take into consideration as to whether, the instant review petition as sought for is at all maintainable. It is no longer res-integra that the review lies against the Page No.# 7/10

judgment and order on three grounds, i.e.,(i). When the judgment and order so passed, a mistake and/or an error apparent on the fact of the record had crept in, or (ii) Discovery of new and important matter of evidence which after exercise of due diligence was not within the knowledge of the review petitioner or could not be produced by him at the time when the judgment and order was passed; or (iii) For sufficient reasons. Therefore, the power of review can be exercised for correction of a mistake but not to substitute a view and such powers can be exercised within the limits of the statute dealing with the exercise of the power. The review cannot be treated like an appeal in disguise. Therefore the power of review has to be exercised within the four corners.

6. In the backdrop of the above therefore, let this Court take into consideration, first as to whether the review application seeking review of the judgment and order dated 03.03.2017 is at all maintainable.

7. A perusal of the review petition would show that a communication dated 20.06.2013 issued by the District Elementary Education, Morigaon to the Director of Elementary Education, Assam is enclosed therein alongwith the parawise comments in respect to WP(C) No.268/2013 was enclosed. In the said parawise comments, there is a reference to an enquiry report of a three Member Enquiry Committee dated 31.12.2012. Further to that, it also appears that by another communication dated 04.07.2013 enclosed to the review petition as Annexure - 9, the Director of Elementary Education Page No.# 8/10

had issued a communication to the Senior Standing Counsel, Education Department. To the said communication, an enquiry report was stated to be enclosed. However, the affidavit so filed by the Commissioner & Secretary, Govt. of Assam, Education (Elementary) Department on 19.11.2015, there is no mention whatsoever as regards the enquiry report. Now in the backdrop of the same, the learned counsel for the review petitioner submits that had the enquiry report been placed, the Court would have passed the judgment sought to be reviewed.

8. This Court is of the opinion that non filing of the enquiry report cannot be considered as an exercise of due diligence by the review petitioners inasmuch as, when the said enquiry report was very much within the knowledge of the Respondent authorities in the writ petition the same cannot be said to be a discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the review petitioner or could not produced by the review petitioners at the time when the judgment was passed or order made. This opinion of this Court on the basis that the review petitioners had all along knew that enquiry report was there and then also chose not to place before this Court and now after the judgment has been passed the review petitioners are of the opinion that the said enquiry report would have made a material difference. If on such opinion of the parties, judgments are allowed to be reviewed, it would lead to non ending of a litigation.

9. On a specific query made to the learned counsel Page No.# 9/10

appearing on behalf of the review petitioners as to whether, the State Government have imitated any disciplinary action against the erring official who has signed the affidavit or even initiated any proceeding for not bringing the record the enquiry report before this Court, the learned counsel submits that to his instructions no steps were taken. Under such circumstances, this Court is of the opinion that the question of reviewing the judgment and order dated 03.03.2017 passed in WP(C) No.268/2013 on the ground that the enquiry report could not be placed doesn't arise.

10. The second ground which has been taken is that the judgment and order dated 03.03.2017 passed in WP(C) No.268/2013, a mistake and/or an error apparent on the fact of the record had crept in, inasmuch as this Court did not take into consideration that the petitioners in the writ petition were appointed by the Managing Committee after provincialisatioin of the School.

11. I have perused the said judgment and order dated 03.03.2017 and it appears there from that this Court had duly taken into consideration the said aspect of the matter in paragraphs 11 & 12 of the said judgment. This Court having considered the same, the question of review does not arise. It may be an incorrect appreciation by this Court at best for which an appeal but not a review.

12. Under such circumstances, the question of reviewing the said judgment and order dated 03.03.2017 does not arise in the facts and circumstances of the instant case. Consequently, Page No.# 10/10

this Court therefore, is of the opinion that the review petition is not maintainable and accordingly stands dismissed.

JUDGE

Comparing Assistant